492 F.3d 680 (6th Cir. 2007), 04-3207, Haliym v. Mitchell

Docket Nº:04-3207.
Citation:492 F.3d 680
Party Name:'Abdul HALIYM, also known as Wayne Frazier, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
Case Date:July 13, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 680

492 F.3d 680 (6th Cir. 2007)

'Abdul HALIYM, also known as Wayne Frazier, Petitioner-Appellant,

v.

Betty MITCHELL, Warden, Respondent-Appellee.

No. 04-3207.

United States Court of Appeals, Sixth Circuit.

July 13, 2007

Argued: October 31, 2006.

Appeal from the United States District Court for the Northern District of Ohio. No. 98-02073—Dan A. Polster, District Judge.

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ARGUED:

Jeffry F. Kelleher, Cleveland, Ohio, for Appellant.

Daniel R. Ranke, Office of the Attorney General, Cleveland, Ohio, for Appellee.

ON BRIEF:

Robert A. Dixon, Cleveland, Ohio, for Appellant.

Daniel R. Ranke, Office of the Attorney General, Cleveland, Ohio, for Appellee.

Before: MERRITT, SILER, and CLAY, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Petitioner 'Abdul Haliym, formerly known as Wayne Frazier, appeals the district

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court's denial of his petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises multiple challenges to his convictions for, inter alia, two counts of aggravated murder and his sentence of death. For the reasons stated below, we AFFIRM the district court's denial of the writ with respect to Petitioner's convictions, but REVERSE the district court's denial of the writ with respect to Petitioner's sentence because Petitioner was denied the effective assistance of counsel during the mitigation phase of his sentencing.

I. BACKGROUND

A. Factual Background

The Ohio Supreme Court found the following facts on direct appeal:

On March 25, 1987, Marcellus Williams and Joann Richards were stabbed to death in their apartment located at 49th and Central in Cleveland. Derek Speights, age nineteen, was visiting his father, Williams, at the time and was also stabbed.

Appellant, Wayne Frazier, was indicted on April 6, 1987 in a six-count indictment. The first count charged appellant with the aggravated murder of Joann Richards in violation of [O.] R.C. [§] 2903.01, and contained aggravated felony, gun, mass murder and felony murder specifications. Count two charged appellant with the aggravated murder of Marcellus Williams in violation of [O.] R.C. [§] 2903.01, and contained the same four specifications as in count one. Count three charged appellant with aggravated burglary in violation of [O.] R.C. [§] 2911.11, and contained aggravated felony and gun specifications; count four charged appellant with the attempted murder of Speights in violation of [O.] R.C. [§] 2903.02 and [O.] R.C. [§] 2923.02, and contained aggravated felony and gun specifications; count five charged appellant with the aggravated robbery of Williams in violation of [O.] R.C. [§] 2911.01, and contained aggravated felony and gun specifications; and count six charged appellant with the aggravated robbery of Richards in violation of [O.] R.C. [§] 2911.01, and contained aggravated felony and gun specifications.

Appellant entered a plea of not guilty to all six counts in the indictment on April 17, 1987. Appellant waived his right to a jury trial and chose to be tried by a three-judge panel. On August 26,1987, a motion for leave to file a plea of not guilty by reason of insanity was granted.

The trial commenced on August 31, 1987. Derek Speights testified that on March 25, 1987, at approximately 10:00 p.m. as he was leaving his father's apartment to go to the store, he was approached by three men who were in an orange Chevette. He identified Wayne Frazier as the driver, Derrick Evans as the passenger in the front seat, and Michael Frazier as the individual in the back seat. Speights testified that appellant inquired as to whether Speights' father, Williams, was in the apartment. Speights advised appellant that Williams was in, and appellant told Speights to inform his father that appellant would be back.

Approximately fifteen to twenty minutes after Speights returned from the store, appellant, his brother Michael Frazier, and Evans arrived at Williams' apartment. The three entered and were seated. Richards was present with her baby. For approximately five minutes they all engaged in conversation. Suddenly, Evans jumped up and held a gun to Williams' head and cocked the gun. Speights further testified that Evans told everyone not to move or he would

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kill them and asked Williams for money. At that point Speights was knocked down; however, he was able to observe appellant stabbing Richards. Also, Speights saw Evans stabbing Williams. At the same time, Michael was stabbing Speights.

Also present in the apartment was seven-year-old Albert Richards. He was in the bedroom and came out in response to the noise and observed the stabbings. Albert identified the appellant in a line-up as someone he knew as "Twin." Albert testified that "Twin" killed his mother, and that "Day-Day," a nickname for Evans, stabbed Albert's father.

Speights testified to all the events that had occurred in the apartment, and that he managed to leave the apartment and summon help. He also identified the appellant as the person who stabbed Joann Richards.

The coroner, Dr. John A. Daniels, testified that he conducted an autopsy on both Williams and Joann Richards. Joann Richards was stabbed thirty-two times. The wounds were from one-half inch to one and one-half inches in depth. The cause of death was multiple stab wounds causing perforation of the heart, main pulmonary artery, and liver, ultimately resulting in exsanguination. The coroner further testified that Williams had been stabbed nine times. The depth of these wounds ranged from three-fourths of an inch to six inches. The cause of death was multiple stab wounds to the chest with perforation of the thoracic aorta and internal and external bleeding.

After speaking with Albert and other people on the scene, the police determined the identity of Wayne Frazier, and subsequently apprehended him. On March 26,1987, the police interviewed appellant, at which time he made a statement. Appellant admitted that he was at the victims' apartment earlier in the evening on the 25th. As a result of this statement and a follow-up interview of appellant on March 27, the police learned of several different locations where property from the crime scene was located. Various items belonging to Williams and Richards were recovered. In addition, clothing of the appellant and his two accomplices which they had attempted to burn was recovered. A buck knife was found which the appellant said looked like his except for rust spots. Another knife was also recovered by the police, which was identified by Albert as the one used to kill his mother.

State v. Frazier, 61 Ohio St.3d 247, 574 N.E.2d 483, 485-86 (1991).

B. Procedural History

On April 6, 1987, Petitioner was indicted for two counts of aggravated murder, each carrying a prior felony specification, a firearm specification, and two capital specifications, namely a mass murder specification pursuant to O.R.C. § 2929.04(A)(5) and a felony murder specification pursuant to O.R.C. § 2929.04(A)(7). He was also charged with one count of aggravated burglary, one count of attempted murder, and two counts of aggravated robbery, each containing a prior felony specification. On August 6, 1987, Petitioner waived his right to a jury; he was tried before a three-judge panel at a trial beginning on August 31, 1987. The panel found him guilty on all charges and specifications on September 3, 1987. The sentencing hearing began on September 22, 1987, and the panel sentenced Petitioner to death on the same day. A brief written opinion to this effect was filed on September 23, 1987.

Petitioner appealed his convictions and sentence, raising fourteen assignments of error. As pertinent to the issues on this appeal, Petitioner raised the issue of the competency of the child witness who testified

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against him at trial, the adequacy of the same witness' oath, and the constitutionality of Petitioner's counsel during the penalty phase of Petitioner's trial. On January 11, 1990, the Ohio Court of Appeals reversed the firearm specification but otherwise upheld the convictions and the sentence of death.

Petitioner, through counsel, appealed as a matter of right to the Ohio Supreme Court, raising fourteen assignments of error. In addition, Petitioner submitted a pro se supplemental brief, alleging ten assignments of error. On July 31, 1991, the Ohio Supreme Court affirmed the decision of the Ohio Court of Appeals in all respects. Frazier, 574 N.E.2d at 486. Petitioner filed a petition for writ of certiorari with the United States Supreme Court, which was denied. Frazier v. Ohio, 503 U.S. 941, 112 S.Ct. 1488, 117 L.Ed.2d 629 (1992).

Petitioner next sought relief through post-conviction proceedings under O.R.C. § 2953.21, raising twenty-one assignments of error.1 Included in these claims of error were claims that Petitioner was deprived of the effective assistance of counsel during trial and sentencing, 2 that his conviction was void or voidable because he did not knowingly, voluntarily, and intelligently waive his right to a jury, that his conviction was void or voidable because of an in-court identification procured by an unnecessarily suggestive line-up, and that his conviction was based on the testimony of a child witness who was incompetent to testify.

On March 25, 1997, the Ohio Court of Common Pleas issued findings of fact and conclusions of law with respect to Petitioner's...

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