John David Stumpf v. Betty Mitchell, Warden

BOGGS, Chief Judge,

dissenting.

The court has reversed the district court’s denial of a writ of habeas corpus on two grounds: that Stumpfs guilty plea was involuntary and unknowing, and that his due process rights in his own trial and sentencing were violated by the state’s later use of evidence against another person. I disagree with both of these conclusions, and therefore respectfully dissent from the granting of the writ of habeas corpus.

I

I begin with the second of the court’s two grounds, as I believe that is the more profoundly mistaken. The majority cites three cases from other circuits to buttress its theory that Ohio’s prosecution of Wesley, which took place in April 1985, some seven months after Stumpf pleaded guilty and was sentenced to death, somehow violates Stumpfs due process rights. None of the three are germane to this case.

In Thompson v. Calderon, a celebrated California death penalty case, the court vacated a death sentence because the prosecutor presented two mutually incompatible theories for the rape-murder during contemporaneous trials of two defendants, Thompson and Leitch. Thompson v. Calderon, 120 F.3d 1045 (9th Cir.1997) (en banc) (plurality), vacated on other grounds, 523 U.S. 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998). During the pre-trial proceedings for both men, and in Leitch’s trial, the prosecutor’s theory was that Leitch killed the victim, his girlfriend, because he wanted to get back together with his ex-wife; Thompson assisted him in the crime. Id. at 1055. In Thompson’s trial, however, the prosecutor argued that Thompson had raped the victim and then killed her to cover up his act. He presented different jail house informants at each *619trial to bolster each contradictory theory. Id. at 1056. The Ninth Circuit held that this shift in arguments violated a prosecutor’s duty to discover the truth and that he was improperly trying to secure convictions for their own sake. Thompson, 120 F.3d at 1058-59; see, e.g., Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (stating that the government’s fundamental interest in a criminal prosecution is “not that it shall win a case, but that justice shall be done”). It also found that Thompson, who was tried first, was prejudiced due that the fact that “[o]nly in Thompson’s trial did the prosecutor change the theory and the arguments [from those presented in the pretrial hearing], and offer facts that directly conflicted with the underlying premise of the charges he brought.” Thompson, 120 F.3d at 1059.

Distinguishing Thompson from the case before us is not difficult, however. First of all, the prosecutor in Thompson pursued the two mutually incompatible theories of the murder at contemporaneous trials after joint pre-trial proceedings, and deliberately chose witnesses who would tell the conflicting story that he needed to convict each defendant. Knowingly putting on false evidence is prosecutorial misconduct that violates the Due Process Clause. Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Nothing in this case indicates that the prosecutors deliberately presented false evidence: Stumpf pleaded guilty to aggravated murder with the specification of killing a witness and attempted aggravated murder with a firearm. The State had every reason to believe his over-all admission of responsibility. It was under no obligation, however, to accept at face value his assertion that he did not actually pull the trigger, especially in light of contradictory forensic evidence, such as the fact that a .25-caliber weapon killed Mrs. Stout, the same caliber as Stumpfs gun.

Nor did the prosecutor in Thompson collect new evidence between trials; he simply manipulated the facts that he had. In contrast, Wesley’s trial took place seven months after Stumpf pleaded guilty, during which time informant Eastman told prosecutors that Wesley confessed that he murdered Mrs. Stout. However, Wesley denied having confessed to Eastman, and the forensic evidence suggested that Eastman’s statement was not airtight. A cursory comparison of the facts to those in Thompson therefore reveals that the California case has little application to our case.1

In Drake v. Kemp, an Eleventh Circuit case, the majority remanded for a new trial because the burden of proof was improperly shifted to the defendant and the prosecutor violated the defendant’s rights during his closing arguments in the sentencing phase. Drake v. Kemp, 762 F.2d 1449 (11th Cir.1985) (en banc). A single concurring judge argued that Drake’s Fourteenth Amendment rights had been violated. The prosecutor, in trials that were a year apart, argued in one instance that a co-defendant must have committed the murder alone and, after having secured a conviction, argued that same person was not strong enough to commit the crime, and therefore Drake must have helped. The concurring judge concluded that it “seems inescapable that the prosecutor obtained Henry Drake’s conviction through the use of testimony he did not believe; bringing this ease under the logical if not actual factual framework of ... *620Napue.” Drake, 762 F.2d at 1479 (Clark, J. specially concurring). Drake therefore does not further Stumpfs case either: a concurring opinion that turns on the prosecutor’s inferred knowledge that he was presenting false evidence does not comport with the facts in this case.

The last case cited by the majority, Smith v. Groose, 205 F.3d 1045 (8th Cir.2000), is equally unconvincing. That case involved two groups of robbers, the first of which, when preparing to burglarize a house, discovered the second already in the process of stealing the homeowner’s possessions. The two groups joined forces, and at some point during the crime the homeowners were murdered. Id. at 1047. The leader of the first group, Anthony Lytle, provided varying accounts of what happened, alternately claiming that the head of the second group, Michael Cunningham, killed the couple and that one of his (Lytle’s) cohorts, James Bowman, was the murderer. Id. at 1047-48. The state convicted Jon Keith Smith, another member of Lytle’s group, for felony-murder based on his association with purported fellow gang member Bowman, who was argued to be the actual killer. Four months later, the state then successfully prosecuted Cunningham for the same murders, based on Lytle’s other story that Cunningham had already killed the couple when Lytle and his friends entered the house. Id. at 1048.

The Eighth Circuit ultimately granted Smith a writ of habeas corpus because the state’s prosecution of Cunningham violated Smith’s due process rights. Ibid. Again, the crux of the case was the deliberate presentation of false evidence: “In short, what the State claimed to be true in Smith’s case it rejected in Cunningham’s case, and vice versa.” Id. at 1050. Only a showing of this kind of prosecutorial misconduct could support a claim, dubious as it might be, that Stumpfs constitutional rights were retroactively violated.

Although this court mentions the prosecution’s knowledge of Eastman’s subsequent statement concerning Wesley’s alleged confession to being Mrs. Stout’s killer, the court’s decision does not rest on this knowledge. It is undisputed that the prosecution did not know of Eastman’s statement at the time of Stumpfs conviction and sentencing. Nothing indicates that the prosecution cherry-picked facts in order to confirm Stumpfs guilty plea in the evidentiary hearing. The majority does not argue that the prosecution was under any obligation to confess error in Stumpfs post-conviction proceedings or appeals, nor even to bring Eastman’s statement to Stumpfs attention. There is simply no prosecutorial misconduct in this case that could retroactively implicate Stumpfs due process rights.

Groose does not “hold that prosecutors must present precisely the same evidence and theories in trials for different defendants. Rather [it] hold[s] only that the use of inherently factually contradictory theories violates principles of due process.” Id. at 1052. The majority remarkably expands this holding to conclude that evidence in a second case that contradicts a guilty plea in an earlier case can implicate due process rights. Stumpf pled guilty after a colloquy in which he indicated that he understood that he was waiving certain constitutional rights. A defendant’s guilty plea is an “admission that he committed the crime charged against him.” North Carolina v. Alford, 400 U.S. 25, 32, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Nothing in the record suggests that the prosecutor was remiss in relying on Stumpfs acknowledgment of guilt. See Dickerson v. United States, 530 U.S. 428, 450, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (Scalia, J., dissenting) (observing that if a defendant *621voluntarily acknowledges wrong-doing, the “Constitution is not ... offended by a criminal’s commendable qualm of conscience or fortunate fit of stupidity”).2 Therefore, I do not see any grounds on which to base an allegation that the prosecution skewed the same set of facts in two different trials in order achieve two mutually incompatible guilty verdicts. This case has little or no similarity with the facts of Thompson, Drake, and Groose.

Far more instructive is the Ninth Circuit’s quite recent decision in Shaw v. Terhune, 353 F.3d 697 (9th Cir.2003). The court held that imposing sentence enhancements on two defendants for personal use of a firearm during an attempted robbery and assault on a restaurant manager was not a violation of due process, although the testimony clearly indicated that only one perpetrator had held a gun to the manager’s head. Id. at 701-02. When the first defendant, Shaw, learned of the conviction and sentence of his accomplice three years later, he filed a habeas petition, citing the California Court of Appeals decision upholding Watts’s sentence which stated: “Indeed, the evidence adduced at trial, which presumably was available to the prosecutor prior to trial, tends to support the conclusion that the jury in [Shaw’s] trial was mistaken.” People v. Watts, 76 Cal.App.4th 1250, 1259-61, 91 Cal.Rptr.2d 1 (1999) (quoted in Shaw, 353 F.3d at 701) (bracket added in Shaw).

However, the Shaw court distinguished its case from Thompson, pointing to the fact that the prosecutor did not manipulate evidence — the same crucial distinction that is present in our case. Shaw, 353 F.3d at 702. Ambiguous evidence is not false evidence; “regrettable” tactics are not necessarily unconstitutional. Id. at 703-04. The fact of the matter is that no one but Wesley and Stumpf know who shot Mrs. Stout. The State is entitled to put on the available evidence to convince the finder of fact of guilt. As long as it does so in a good faith manner, without manipulating or selecting out critical evidence, due process is not violated.

The Shaw court also speculated that if there were a constitutional violation, that Watts, the second defendant, rather than Shaw, would be the one who could argue the point. Id. at 704, n. 5. Similarly, I could understand a court accepting Wesley’s claim that the prosecution could not honestly present evidence in his case that contradicted what the government had relied upon previously (a type of “prosecuto-rial estoppel”), or even that it could not present evidence that contradicted a position it was taking elsewhere. However, none of those theories can retroactively render unfair the fundamentally fair proceedings that Stumpf received.

Having indicated that I believe it is logically impossible for Stumpf s claim to succeed under these circumstances, I touch only lightly on the court’s resolution of the question of “whether there is a reasonable probability that the prosecutor’s use of inconsistent, irreconcilable theories rendered the conviction unreliable.” (Maj. Op. at 40). Nothing that occurred in Stumpfs proceeding rendered the conviction unreliable. At most, the existence of Eastman’s statement could be argued to *622have rendered the conviction unreliable, but then our analysis would simply be that of any newly discovered evidence, which proceeds against a more difficult background and which the court does not undertake. United States v. O’Dell, 805 F.2d 637, 640 (6th Cir.1986) (“Motions for anew trial based on newly discovered evidence are disfavored.”); see, e.g., Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (stating the rule that habeas relief is not the proper remedy for a claim of judicial error based on newly discovered evidence, absent some constitutional flaw in the trial proceedings). It would indeed be bizarre if Eastman’s statement could not undermine Stumpfs conviction by its own force, but introducing it into another proceeding could do so. Following our court’s decision, a prosecutor faced with the same dilemma in the future would be well advised not only to eschew reliance upon such potentially contradictory evidence in later proceedings, but presumably prevent any other prosecutor from doing so. He or she might even be forced deceitfully to disclaim a belief that a jury was entitled to hear such evidence. In sum, whatever the result might be were Wesley bringing the claim, I cannot agree to the principle of retroactive unconstitutionality propounded in this case.

II

With respect to Stumpfs claim attacking his guilty plea, the court’s opinion appears to take no notice of the benefit that Stumpf in fact gained from pleading guilty. He first waived a jury trial, opting to contest the charges before a three-judge panel. He then pled guilty in return for the prosecution dropping some charges and specifications. It is axiomatic that acceptance of responsibility decreases the chances that the death penalty will be imposed. The sentencing court had three choices in sentencing Stumpf: life without parole for twenty years; life without parole for thirty years; and death. It made sound strategic sense for him to act in a way that would encourage the judges to choose one of the first two options.

Once Stumpf pled guilty, he was entitled to an evidentiary hearing before a three-judge panel to confirm that the evidence in the case supported his plea. Ohio Rev. Code Ann. § 2945.06. Under one strategic view of the facts, the panel might have been less likely than a jury to render a death verdict because it would have grasped the legal theory behind Stumpfs position that, while guilty of Mrs. Stout’s murder, he was not actually the shooter, and therefore did not deserve the death penalty. Stumpf was arguably hoping for another benefit, namely the dismissal of the remaining specifications to the charges against him that made him eligible for the death penalty. In Ohio “[i]f the indictment contains one or more specifications, and a plea of guilty or no contest to the charge is accepted, the court may dismiss the specifications and impose sentence accordingly, in the interests of justice.” Ohio R.Crim. P. 11(C)(3). Therefore, the majority is incorrect that Stumpf received no benefit at all from pleading guilty: he significantly improved his chances to avoid the death penalty, although in the end his strategy did not yield the desired result.

Despite the court’s extensive exegesis of the “confusion” at the plea hearing itself, the events that took place at the sentencing hearing apparently were neither a surprise nor a disappointment, in the beginning, to the defendant or his counsel. In fact, the defense attorney stated that the prosecution’s rendition of the plea agreement was accurate, (Maj. Op. at 16). No objection was made to the course of the sentencing hearing, nor was there any ef*623fort to withdraw the guilty plea at that point. It was only after the Eastman statement came to light that Stumpf attempted to withdraw his guilty plea. Similarly, at the “factual basis hearing” before the three-judge panel the defense did not attempt to say: “Wait a minute, we aren’t able to make an argument that we thought we would be able to make at this stage.” It made the argument. The three-judge panel heard and considered it. They simply were not persuaded.

Finally, it is true that Stumpf denied that he actually shot Mrs. Stout. Nevertheless, he knew that by pleading guilty, he would only be able to argue that Wesley in fact committed the murder as part of the mitigation phase of the proceedings. The majority asserts that there is evidence of a “serious misunderstanding,” (Maj. Op. at 23), between the judge and Stumpfs lawyers. But no one was denying that Stumpf was involved in the murder of Mrs. Stout. His lawyers were laying the groundwork to argue that Stumpf was not the triggerman and therefore did not deserve the death penalty. Stumpf would certainly be anxious to make that argument, and it is hardly surprising that, not knowing the precise point in the proceedings that it would be relevant, he would want to double-check that he would have an opportunity to argue this mitigating factor. The majority simply misinterprets Stumpfs caution as confusion.

Under these circumstances, it appears to me that Stumpf understood his legal strategy, executed it according to plan, and got exactly the opportunities that he bargained for, making the grant of a writ of habeas corpus unwarranted. Therefore, I respectfully dissent.

. It is worth noting that constitutional claim made in Thompson ultimately did not prevent the defendant’s execution on July 14, 1998. Calderon v. Thompson, 523 U.S. 538, 566, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (reinstating the mandate denying habeas relief).

. Even assuming, arguendo, that the majority is correct that Stumpf pled guilty based on substandard legal advice, it does not follow that accepting the acknowledgment of guilt amounts to prosecutorial misconduct, the prerequisite for finding a violation of Stumpf’s constitutional rights. The majority argues that the plea was not voluntary, a conclusion I address infra, but the validity of the plea is an entirely different matter. However flawed a defendant's guilty plea might be, it cannot constitute a contradictory prosecutorial theory of guilt, as required in Groose.