454 F.3d 564 (6th Cir. 2006), 01-3250, Poindexter v. Mitchell

Docket Nº:01-3250, 01-3300.
Citation:454 F.3d 564
Party Name:Dewaine POINDEXTER, Petitioner-Appellee/Cross-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellant/Cross-Appellee.
Case Date:July 24, 2006
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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454 F.3d 564 (6th Cir. 2006)

Dewaine POINDEXTER, Petitioner-Appellee/Cross-Appellant,


Betty MITCHELL, Warden, Respondent-Appellant/Cross-Appellee.

Nos. 01-3250, 01-3300.

United States Court of Appeals, Sixth Circuit.

July 24, 2006

Argued: April 28, 2005.

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 94-00178—Sandra S. Beckwith, Chief District Judge.

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Charles L. Wille, Attorney General's Office of Ohio, Columbus, Ohio, for Appellant.

Jennifer M. Kinsley, Sirkin, Pinales & Schwartz, Cincinnati, Ohio, for Appellee.


Charles L. Wille, Heather L. Gosselin, Attorney General's Office of Ohio, Columbus, Ohio, for Appellant.

Jennifer M. Kinsley, H. Louis Sirkin, Sirkin, Pinales & Schwartz, Cincinnati, Ohio, Gary Russell Lewis, Gary R. Lewis Company, Cincinnati, Ohio, for Appellee.

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

BOGGS, C.J. (pp. 587-89), delivered a separate concurring opinion, in which SUHRHEINRICH, J., joined, with SUHRHEINRICH, J. (p. 589), and DAUGHTREY, J. (pp. 589-90), also delivering separate concurring opinions.


SUHRHEINRICH, Circuit Judge.

In this death penalty case, Respondent Betty Mitchell, Warden, appeals the district court's grant of habeas corpus under 28 U.S.C. § 2254 on the grounds that Petitioner Dewaine Poindexter received constitutionally ineffective assistance of counsel during the guilt and penalty phases of his capital trial. Poindexter cross-appeals the district court's denial of his § 2254 petition based upon his remaining grounds for relief. Although we disagree with the district court's conclusion that Poindexter was deprived of his right to counsel during the guilt phase, we agree with the conclusion that Poindexter received ineffective assistance during the sentencing phase. For the following reasons, we REVERSE the district court's conditional grant of the writ in part and AFFIRM in part.

I. Background

The facts of this case are excerpted from State v. Poindexter, 520 N.E.2d 568, 569-70 (Ohio 1988):

During February 1985, Dewaine Poindexter, appellant herein, was serving a sentence in the workhouse (Community Correctional Institution) for felonious assault on his former girlfriend and the mother of his two children, Tracy Abernathy. On February 11 or 12, 1985,

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appellant confided in a fellow inmate that Abernathy was " * * * going with some other guy," and that appellant was going to kill the man.

On February 15, 1985, appellant was released from prison. On February 19, 1985, at approximately 10:30 a.m., Abernathy, Kevin Flanaghan and Abernathy's son, Michael, were asleep on the second floor of Abernathy's townhouse apartment in Cincinnati, Ohio. They were awakened by the crash of breaking glass. As Abernathy and Flanaghan started to investigate the noise, they were confronted by an armed man, appellant, as they reached the top of the steps. Appellant ordered Abernathy and Flanaghan back into the bedroom and asked Flanaghan to identify himself. Just as Flanaghan stated that his name was Kevin, appellant, who was aiming a revolver at Flanaghan's chest, pulled the trigger. The weapon misfired, emitting only a clicking noise. Thereupon, appellant aimed the weapon and pulled the trigger a second time. This time the weapon fired, striking Flanaghan in the chest and knocking him back onto the bed where he died a short time thereafter. Appellant then assaulted Abernathy, striking her on the face, and ordered her to pick up her one-year-old son and go downstairs to the living room.

About the time of Abernathy's beating, John Hurt, an unarmed security guard for the apartment complex, arrived on the scene. Hurt initially went to the rear of the apartment where he found a broken window. Upon hearing screams and seeing a man and a woman move toward the front door of the apartment, Hurt ran to the front of the apartment in time to observe appellant and Abernathy coming out.

Abernathy told Hurt that her boyfriend had been shot. Hurt, walking in front of appellant, followed Abernathy upstairs to Flanaghan's body. While there, appellant produced the pistol from his pocket, ordered Hurt to kneel on the floor and announced that he was going to kill both Hurt and Abernathy. Appellant aimed the revolver at Hurt's head and, from a range of eighteen to twenty inches, fired two shots. Both shots missed. When appellant attempted to fire a third shot, the weapon misfired. Appellant thereupon left the bedroom and was heard reloading the revolver. As soon as appellant left the room, Hurt radioed for police assistance.

After reloading, appellant reentered the bedroom, pistol-whipped Abernathy twice and ordered Hurt and Abernathy to accompany him out of the apartment. Once they were all outside, a Cincinnati police cruiser arrived on the scene and appellant fled on foot. Not long thereafter, appellant's pistol was recovered from a nearby trash dumpster and appellant was arrested without incident at his sister's apartment.

On March 1,1985, Poindexter was indicted on two counts of aggravated murder for the death of Kevin Flanaghan, in violation of Ohio Rev. Code § 2903.01; one count of aggravated burglary, in violation of Ohio Rev. Code §2911.11; one count of felonious assault, in violation of Ohio Rev. Code § 2903.11; one count of kidnaping, in violation of Ohio Rev. Code § 2905.01; and one count of attempted aggravated murder, in violation of Ohio Rev. Code § 2923.02. Both counts of aggravated murder contained the following capital specifications: (1) the aggravated murder was committed during the course of an aggravated burglary in which Poindexter was the principal offender, in violation of Ohio Rev. Code § 2924.04(A)(7); and (2) the aggravated murder occurred as part of a

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course of conduct involving the purposeful attempt to kill two or more persons, in violation of Ohio Rev. Code § 2929.04(A)(5).

Following his indictment, the trial court appointed Dominic Perrino to represent Poindexter. On April 8, 1985, Peter Pandilidis was added to the defense team.1

Poindexter pleaded not guilty, and the matter proceeded to trial on May 9, 1985. A jury convicted Poindexter on all counts as charged. Five days after the trial ended, the mitigation phase began. After an evidentiary hearing, the jury recommended the death penalty. On June 12, 1985, the trial court adopted the jury's recommendation and sentenced Poindexter to death. The trial court also sentenced Poindexter to consecutive terms of incarceration often to twenty-five years on the aggravated burglary conviction, eight to fifteen years on the felonious assault conviction, and seven to twenty-five years on the attempted aggravated murder conviction.

The Ohio Court of Appeals affirmed Poindexter's conviction and sentence on direct appeal, see State v. Poindexter, no. C-850394, 1996 WL 14888 (Ohio Ct. App. Dec. 24, 1986) (December 24, 1986), as did the Ohio Supreme Court, see State v. Poindexter, 36 Ohio St.3d 1, 520 N.E.2d 568 (Ohio 1988). The United States Supreme Court denied certiorari. See Poindexter v. Ohio, 488 U.S. 916, 109 S.Ct. 272, 102 L.Ed.2d 261 (1988).

On July 26, 1989, Poindexter filed his petition for post-conviction relief pursuant to Ohio Rev. Code § 2953.21. The state court denied the petition, and the Ohio Court of Appeals affirmed. See State v. Poindexter, no. C-890734, 1991 WL 30613 (Ohio Ct.App. Mar. 6, 1991) (per curiam).

In December 1991, Poindexter filed a petition in federal district court for a writ of habeas corpus under § 2254. Shortly thereafter, the Ohio Supreme Court set out a new state procedure for presenting claims of ineffective assistance of appellate counsel. Because his petition contained such claims, Poindexter filed an application for delayed reconsideration in the First District Ohio Court of Appeals and moved the federal district court to hold his § 2254 petition in abeyance. Instead, the district court dismissed the petition on July 9, 1992, pending exhaustion of the new state remedy.

The Ohio Court of Appeals summarily denied the application for delayed reconsideration on December 1, 1992, and the Ohio Supreme Court affirmed on October 27, 1993, also denying Poindexter's motion for delayed reinstatement of his appeal.

Poindexter returned to federal court. While the instant federal petition was pending, Poindexter filed a second petition for post-conviction relief in state court under Ohio Rev. Code § 2953.21. The petition, as amended, included only a claim arising under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The state trial court declined to entertain Poindexter's successive petition, and the Ohio Court of Appeals affirmed the denial of relief. See State v. Poindexter, no. C-960780, 1997 WL 605086 (Ohio Ct.App. Aug. 29, 1997) (per curiam). The Ohio Supreme Court denied leave to appeal.

After exhausting his state court remedies, Poindexter filed his writ of habeas corpus petition. On December 15, 2000, the district court granted Poindexter's petition in part and denied it in part. The court conditionally granted the writ based upon its conclusion that Poindexter's trial counsel were ineffective because they failed to (1) cross-examine prosecution witness John Hurt about inconsistencies between his trial testimony and the statement

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he recorded on the date of the events; (2) investigate, prepare, and present a cohesive defense; and (3) present significant mitigation evidence. A separate judgment was entered the same day. On February 7, 2001, the district...

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