Stumpf v. Mitchell, 01-3613.

• Decision Date: 28 April 2004
• Docket Number: No. 01-3613.,01-3613.
• Parties: John David STUMPF, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

367 F.3d 594

John David STUMPF, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.

No. 01-3613.

United States Court of Appeals, Sixth Circuit.

Argued: December 11, 2002.

Decided and Filed: April 28, 2004.

Alan M. Freedman (argued and briefed), Carol Heiss (briefed), Midwest Center for Justice, Chicago, IL, for Petitioner-Appellant.

Michael L. Collyer, Office of the Attorney General, Cleveland, OH, Carol Ann Ellensohn (argued), Office of the Attorney General, Health & Human Services Section, Stephen E. Maher (briefed), Attorney General's Office of Ohio Capital Crimes Section Columbus, OH, for Respondent-Appellee.

Before: BOGGS, Chief Judge; and DAUGHTREY and MOORE, Circuit Judges.

DAUGHTREY, J., delivered the opinion of the court, in which MOORE, J., joined. BOGGS, C.J. (pp. 618-623), delivered a separate dissenting opinion.

OPINION

DAUGHTREY, Circuit Judge.

The petitioner, John David Stumpf, is a state prisoner incarcerated on Ohio's death row. He appeals the district court's dismissal of his habeas corpus petition, filed pursuant to 28 U.S.C. § 2254, in which he challenged his 1984 guilty plea and death sentence for one count of aggravated murder, with the capital specification that the murder was committed to escape detection, apprehension, trial, and punishment for other offenses, including aggravated robbery and attempted aggravated murder. Specifically, Stumpf alleges (1) that his guilty plea was involuntary and unknowing; (2) that his due process rights were violated by the state's use of inconsistent theories to secure convictions against both Stumpf and his accomplice, Clyde Wesley; (3) that he was deprived of effective assistance of counsel at sentencing; and (4) that the Ohio death penalty statute is unconstitutional on its face and as applied to him.

Prior to entering a guilty plea, Stumpf had waived his right to a trial by jury and elected to have his case heard by a three-judge panel. Under Ohio law, when a defendant pleads guilty to aggravated murder, the court must hold an evidentiary hearing to establish a factual basis for the plea. The three-judge panel held such a hearing in this case and found that there was a factual basis for Stumpf's plea, that he was guilty of aggravated murder with the capital specification and, ultimately, that there was insufficient mitigating evidence to spare Stumpf from imposition of the death penalty.

Under Ohio law at the time of Stumpf's conviction, the aggravated murder statute required that "specific intent" be proved to convict someone of that crime. At the evidentiary hearing to establish a factual basis for Stumpf's plea, Stumpf and his attorneys argued that he did not shoot the victim and, indeed, that he was not present when the victim was shot. The state argued in response that Stumpf was the shooter, and the three-judge panel that heard the case adopted the state's theory, finding that Stumpf was the actual shooter. At a later trial of Stumpf's accomplice Wesley, however, the state presented the testimony of a jailhouse informant to establish that Wesley was the shooter. When Stumpf sought to withdraw his guilty plea on the basis of Wesley's conviction, the state opposed his motion, arguing that the informant's testimony was unreliable.

We conclude that the district court should have granted relief to Stumpf on either or both of two alternative grounds: first, that his guilty plea was unknowing and involuntary because he was manifestly not aware that specific intent was an element of the crime to which he pleaded guilty and, second, that Stumpf's due process rights were violated by the state's deliberate action in securing convictions of both Stumpf and Wesley for the same crime, using inconsistent theories. Because we are granting relief on these two grounds, we do not reach Stumpf's challenge to the effectiveness of counsel's representation at sentencing or to the constitutionality of the Ohio death penalty statute.

I. PROCEDURAL AND FACTUAL BACKGROUND

A. The District Court's Factual Findings

Most of the underlying facts are undisputed in this case and do not affect the legal determinations necessary to the resolution of the appeal. For that reason, and because we review the district court's determination of the facts only for clear error, we adopt the district court's characterization of the facts, as determined by the state courts, as follows:

On May 14, 1984, Stumpf, Clyde Daniel Wesley, and Norman Leroy Edmonds, after visiting a bar in Washington, Pennsylvania, got on Interstate 70 and headed west toward Ohio. By sundown, they had reached Guernsey County. They stopped their car along I-70 and, leaving Edmonds in the car, Stumpf and Wesley walked to a nearby house under the pretense of needing to make a phone call. The house they chose was owned and occupied by Norman and Mary Jane Stout. Stout admitted Stumpf and Wesley into his home and allowed them to use the phone. When they had completed the call, both Stumpf and Wesley produced pistols and announced a robbery.¹ Stumpf held the Stouts at gunpoint in a back bedroom while Wesley searched the house for items to steal.

At some point, Stout moved toward Stumpf, and Stumpf shot him between the eyes with his pistol. The shot was not fatal, and Stout subsequently pushed Stumpf into the next room. During this altercation, Stout was struck on the head with a pistol and shot in the head a second time. These actions were enough to render him semi-conscious but not to kill him. While lying on the floor in the other room, Stout heard four gunshots. There is no dispute that Mary Jane Stout was shot and killed during the course of this robbery, although there is a dispute as to whether Stumpf or Wesley fired the fatal shots. After Mrs. Stout was killed, Stumpf and Wesley stole the Stout's car and fled. Stumpf was arrested several days later, and after initially denying any knowledge about these crimes and then being told that Stout had survived, he confessed to being involved.

At the time the trial court proceedings occurred, Wesley had not yet been extradited from Texas. However, subsequent to Stumpf's having pleaded guilty and having been sentenced to death, Wesley was convicted of aggravated murder by a jury and received a sentence of life imprisonment without the possibility of parole for 20 years. The State introduced evidence at Wesley's trial that Wesley and not Stumpf fired the shots that killed Mrs. Stout. Edmonds was not charged in the Stout murder and robbery, but was charged for other offenses committed during this crime spree, and he agreed to and did testify against both Stumpf and Wesley concerning the murder of Mary Jane Stout.

Stumpf v. Anderson, 2001 WL 242585, No. C-1-96-668 (S.D.Ohio Feb.7, 2001).

B. Additional Facts Regarding Ballistics Evidence

Of the two bullets that struck Stout, only pieces of each were recovered. Part of the bullet that struck him between the eyes was recovered during surgery, while a second fragment was found in the second bedroom. A portion of the bullet that struck Stout in the top of the head was recovered during surgery, but part of it had to be left in place. Another bullet was recovered from the mattress of the second bedroom.

Stout's wife was shot four times in the first bedroom. She died from three gunshots to the left side of her head. The fourth bullet went through her left wrist and struck her chest without penetrating the skin of her chest. A fifth bullet was recovered from the wall of that bedroom, above the headboard of the bed.

The chrome Raven was never recovered by the police, and Stumpf admitted that he had thrown it out of the car window after he and Wesley had left the Stout residence. The black .25 caliber pistol was recovered by the police after the men sold it, along with one of Stout's guns, to an individual in Washington, Pennsylvania. Ronald Dye, a ballistics expert from the Ohio Bureau of Criminal Identification and Investigation, a division of the Ohio Attorney General's office, testified at Stumpf's factual basis hearing as to the forensic findings regarding bullets and cartridge cases recovered from the murder scene. Dye testified that there were eight spent cartridges found at the scene, that seven of them had been fired by one gun, and one was fired by a different gun. Dye also said that the black pistol, which had been recovered by the police, fired one bullet, while the other seven bullets were all fired by the same gun. That gun could have been the chrome Raven, or one of several other types of guns.

At Stumpf's plea proceeding, the prosecutor argued that the ballistics evidence supported the conclusion that Stumpf had shot Mrs. Stout, since she was apparently shot with the same weapon used against her husband, saying, "There's ample evidence to conclude that this defendant fired all shots that hit anybody, because the same gun fired all of those shots." However, during Wesley's trial, the same prosecutor put Eastman, Wesley's cellmate, on the witness stand, to repeat Wesley's confession to him. According to Eastman, Wesley told him that after Stumpf had shot Stout in the face, he dropped the chrome Raven and ran, at which point Wesley picked up the pistol and shot Mrs. Stout. This version of the crime was also supported by the ballistics evidence that the black pistol had a tendency to jam after firing just one round, which may have led Wesley to discard it after shooting it only once.

C. The Guilty Plea

Stumpf and Wesley could not be tried together because Wesley contested his extradition from Texas, where he had been apprehended. As a result, while Wesley was still detained in Texas, Stumpf pleaded guilty to the aggravated murder of Mary Jane Stout, in violation of Ohio Rev.Code § 2903.01(B), and to the capital specification under Ohio Rev.Code § 2929.04(A)(3) that the murder was committed for the purpose of escaping detection, apprehension, trial or punishment for the offenses...