205 F.3d 269 (6th Cir. 2000), 97-4369, Combs v Coyle

Docket Nº:97-4369
Citation:205 F.3d 269
Case Date:February 23, 2000
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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205 F.3d 269 (6th Cir. 2000)




No. 97-4369

United States Court of Appeals, Sixth Circuit

February 23, 2000

Argued: November 2, 1999

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 95-00733--Sandra S. Beckwith, District Judge.

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Jenny L. Klitch (briefed), Jones, Day, Reavis & Pogue, Columbus, OH, Linda E. Prucha (briefed), Public Defender's Office, Ohio Public Defender Commission, Columbus, OH, Richard A. Chesley (argued and briefed), Jones, Day, Reavis & Pogue, Chicago, IL, for Petitioner-Appellant.

Stuart A. Cole (argued and briefed), Asst. Atty. Gen., Charles L. Wille, Jonathan R. Fulkerson (briefed), Office of the Attorney General of Ohio, Capitol Crimes Section, Columbus, OH, Michael L. Bachman, Office of the Attorney General, Federal Litigation Section, Cincinnati, OH, for Respondent-Appellee.

Before: Norris, Daughtrey, and Moore, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. NORRIS, J. (p. 293), delivered a separate opinion concurring in part and dissenting in part and joined in the judgment.


Karen Nelson Moore, Circuit Judge

Petitioner-appellant Ronald Dean Combs was convicted by an Ohio jury of two counts of aggravated murder as well as a specification of an aggravating circumstance as to each count, and he was sentenced to death. Combs now appeals the district court's denial of his petition for a writ of habeas corpus. His brief sets forth twenty-nine claims, including various claims of ineffective assistance of counsel, prosecutorial misconduct, trial court error, and challenges to the constitutionality of his death sentence. For reasons that will be explained below, we conclude that Combs's trial counsel rendered ineffective assistance so egregious as to make us doubt whether Combs's trial produced a

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just result. Accordingly, we REVERSE the district court's judgment and REMAND to the district court for issuance of a writ of habeas corpus conditioned upon the State of Ohio granting Combs a new trial within a reasonable period of time.


On July 15, 1987, Ronald Dean Combs shot and killed Peggy Schoonover and her mother, Joan Schoonover. Peggy Schoonover and Combs had been involved in a relationship and had a child together, a son named Joseph. The shootings took place in the Holiday Park Tower parking lot in downtown Cincinnati, and an off-duty police officer, Deputy Sheriff James Neil, witnessed the shootings. Neil ordered Combs to freeze, but when Combs made an aggressive move and refused to drop his shotgun, Neil fired six gunshots at Combs. Combs was taken to the hospital and underwent extensive treatment for his gunshot wounds. His right arm was amputated, and his left arm was left partly paralyzed.

Combs was charged with two counts of aggravated murder, which is defined as "purposely, and with prior calculation and design, caus[ing] the death of another." Ohio Rev. Code Ann. § 2903.01(A) (Banks-Baldwin 1997). Each count contained a specification of an aggravating circumstance, namely that the offense "was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons." Joint Appendix (hereinafter "J.A.") at 9 (Indictment); Ohio Rev. Code Ann. § 2929.04(A)(5) (Banks-Baldwin 1997). Under Ohio law, a defendant becomes eligible for the death penalty if he is convicted of or pleads guilty to aggravated murder as well as at least one of the aggravating circumstances set forth in § 2929.04. See Ohio Rev. Code Ann. § 2929.03(C)(2) (Banks-Baldwin 1997).

At trial, Combs did not contest that he fired the two shots that killed Peggy and Joan Schoonover. Instead, his defense was that he was too intoxicated from alcohol and drugs to form the requisite intent to kill the women or to have committed the killings with prior calculation and design. To support this theory, Combs presented the testimony of several witnesses who had seen him ingesting substantial quantities of alcohol and drugs in the days prior to and on the day of the shootings. Defense witness Dr. Roger Fisher, a clinical psychologist, also testified that, in his expert opinion, Combs was under the influence of drugs and alcohol at the time of the shootings. However, on cross examination, Fisher explained his belief that Combs, while intoxicated, was nevertheless acting with intent and purpose.

On February 17, 1988, a jury found Combs guilty of both counts of aggravated murder as well as the specification of an aggravating circumstance as to each count. Following a sentencing hearing conducted on February 22, 1988, the jury returned a verdict imposing a sentence of death. Pursuant to Ohio Revised Code § 2929.03(D)(3), the trial court independently reviewed all the evidence and, upon concluding that the aggravating circumstance outweighed the mitigating factors beyond a reasonable doubt, it adopted the jury's recommended sentence of death.

Combs then unsuccessfully pursued direct appeals and state post-conviction relief. Combs's conviction was affirmed by the state court of appeals on September 19, 1990, see Ohio v. Combs, No. C-880156, 1990 WL 135000, at *9 (Ohio Ct. App. Sept. 19, 1990) (unpublished opinion), and by the Ohio Supreme Court on December 18, 1991, see Ohio v. Combs, 581 N.E.2d 1071, 1084 (Ohio 1991), reh'g denied, 583 N.E.2d 974 (Ohio), cert. denied, 504 U.S. 977 (1992). Combs filed a petition for post-conviction relief pursuant to Ohio Revised Code § 2953.21 raising fifty-nine claims for relief, which was denied by the court of common pleas on May 20, 1993. J.A. at 420 (Ct. C.P. Denial of Pet. to Vacate). The court of appeals affirmed the denial of relief, see Ohio v.

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Combs, 652 N.E.2d 205, 218 (Ohio Ct. App. 1994), and the Ohio Supreme Court declined jurisdiction over Combs's discretionary appeal, see Ohio v. Combs, 644 N.E.2d 1028 (Ohio), recons. denied, 646 N.E.2d 469 (Ohio 1995). In June of 1993, Combs filed an application for delayed reconsideration in the court of appeals; this application was denied on February 22, 1994. J.A. at 363-64 (Entry Denying App. for Delayed Recons.). The Ohio Supreme Court affirmed the denial without opinion. See Ohio v. Combs, 634 N.E.2d 1027 (Ohio), recons. denied, 638 N.E.2d 86 (Ohio 1994), cert. denied, 513 U.S. 1167 (1995).

After exhausting all state court remedies, Combs filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio pursuant to 28 U.S.C. § 2254. Combs's petition asserted fifty-three claims for relief. After finding all of these claims to be either procedurally barred or without merit, the district court denied relief on October 23, 1997. J.A. at 231 (D. Ct. Op.). The district court issued a certificate of probable cause on December 17, 1997. We have jurisdiction over Combs's timely appeal of the district court's judgment pursuant to 28 U.S.C. § 2253.

Combs's appeal sets forth twenty-nine claims for relief; these claims fall under the headings of ineffective assistance of trial counsel at both the culpability and sentencing phases, ineffective assistance of appellate counsel, prosecutorial misconduct, trial court error, and imposition of an unconstitutional sentence of death. Because our resolution of Combs's ineffective assistance of trial counsel claim renders unnecessary a decision on the others, we will confine our opinion to an analysis of the ineffectiveness claim. Additionally, we will briefly discuss trial errors that have been identified by the Ohio state courts so as to ensure that these errors are avoided on Combs's retrial.


A. Procedural Default

It is well established that "[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). In Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), we articulated an analysis that must be followed when a state argues that a habeas claim is defaulted because of a petitioner's failure to observe a state procedural rule. "First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Id. at 138. "Second, the court must decide whether the state courts actually enforced the state procedural sanction." Id. "Third, the court must decide whether the state procedural forfeiture is an 'adequate and independent' state ground on which the state can rely to foreclose review of a federal constitutional claim." Id. As we have previously stated: "For purposes of federal review in habeas cases, we may consider as an adequate and independent state procedural rule only a state procedural rule that was 'firmly established and regularly followed by the time as of which it [was] to be applied'...." Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998) (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)) (alteration in original). If we determine that the state procedural ground was adequate and independent so as to bar review, the petitioner must then demonstrate cause and prejudice

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or a fundamental miscarriage of justice.

Whether a state court rested its holding on procedural default so as to bar federal habeas review is a question of law that we review de novo. See Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). In answering this...

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