Awkal v. Mitchell

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). By the majority’s reckoning, defense counsel’s presentation of Dr. Mag-di Rizk “devastated Awkal’s sole defense” when the doctor testified that Awkal was sane at the time of the killings. (Majority Op. at 466.) 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, 104 S.Ct. 2052.

Although the majority purports to And “no relevant distinctions” between this case and Combs (Majority Op. at 464), 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 a licensed psychologist in Ohio, Dr. Hewitt *471was allowed to testify later at the penalty-phase of the ease.

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. “[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052. 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, “[ajlthough Combs’s counsel’s decision to present Dr. Fisher’s 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 *472wide 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, 104 S.Ct. 2052 (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, 104 S.Ct. 2052. There is no dispute that Awkal shot his estranged wife and brother-in-law to death. His sole defense 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 La-tife.

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 466 (quoting Combs, 205 F.3d at 288) (internal punctuation omitted)) I would instead suggest that, in light of the overwhelming 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 *473decision to call Rizk.” (Majority Op. at 467.) But this assertion, which the majority presents without any supporting case-law, 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, 104 S.Ct. 2052 (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”).

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 *474incident 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.” O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (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, 111 S.Ct. 2546, 115 L.Ed.2d 640 (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 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, 104 S.Ct. 2052.

Awkal next argues that trial counsel “demonstrated] 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 *475any 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. Van Hook, 39 Ohio St.3d 256, 530 N.E.2d 883, 890 (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. Sarny’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 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, 77 Ohio App.3d 278, 602 N.E.2d 286, 290 (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.

*476Awkal contends that this statement constituted prosecutorial misconduct and that, as a result, he was denied the due process of law.

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, 76 Ohio St.3d 324, 667 N.E.2d 960, 970 (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 prosecu-torial-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, 111 S.Ct. 2546, 115 L.Ed.2d 640 (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 prosecuto-rial-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.

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.