Mahdi v. Bagley

• Decision Date: 11 April 2008
• Docket Number: No. 05-3471.,05-3471.
• Citation: 522 F.3d 631
• Parties: Abdullah Sharif Kaazim MAHDI, f/k/a Vernon Smith, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

522 F.3d 631

Abdullah Sharif Kaazim MAHDI, f/k/a Vernon Smith, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee.

No. 05-3471.

United States Court of Appeals, Sixth Circuit.

Argued: March 6, 2007.

Decided and Filed: April 11, 2008.

ARGUED:

Robert K. Lowe, Public Defender's Office, Ohio Public Defender Commission, Columbus, Ohio, for Appellant. Carol Ann Ellensohn, Assistant Attorney General, Capital Crimes Section, Columbus, Ohio, for Appellee.

ON BRIEF:

Robert K. Lowe, Kimberly S. Rigby, Public Defender's Office, Ohio Public Defender Commission, Columbus, Ohio, for Appellant. Carol Ann Ellensohn, Assistant Attorney General, Capital Crimes Section, Columbus, Ohio, Michael L. Collyer, Assistant Attorney General, Capital Crimes Section, Cleveland, Ohio, for Appellee.

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

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Petitioner-appellant Abdullah Sharif Kaazim Mahdi (f/k/a Vernon Smith) appeals the district court's denial of his habeas corpus petition. Mahdi argues that the district court erred in finding that: (1) his trial counsel was not ineffective; (2) his appellate counsel was not ineffective; and (3) the retroactive application of a change in Ohio case law did not constitute a violation of the Due Process Clause. For the following reasons, we affirm the district court's denial of Mahdi's petition for a writ of habeas corpus.

I.

The Supreme Court of Ohio summarized the facts underlying this case as follows:

On the evening of May 26, 1993, defendant-appellant, Vernon Smith, n.k.a. Abdullah Sharif Kaazim Mahdi, and Herbert Bryson robbed the Woodstock Market located at the corner of Woodstock and Avondale in Toledo. During the robbery, Smith fired a single shot at the upper chest of Sohail Darwish, causing his death. Approximately two weeks later, Smith was arrested and then indicted on one count of aggravated murder with a firearm specification, and a death penalty specification alleging that Smith was the principal offender in committing aggravated murder during an aggravated robbery. Smith was also indicted on three counts of aggravated robbery. Subsequently, Smith was found guilty as charged by a jury and sentenced to death.

During the afternoon of May 26, 1993, Smith met up with Herbert Bryson and Lamont Layson at a dirt basketball court in a park at Highland and Maplewood in Toledo. The trio discussed "hitting a lick," i.e., committing a robbery. The group got in Bryson's car, and Smith directed them to the corner of Woodstock and Avondale, where the Woodstock Market was located. Layson remained in the car while Smith and Bryson headed toward the carryout. Jeremiah Bishop, who was two houses down from the Woodstock Market at that time, saw Smith and another person enter the carryout.

Bryson testified that after he and Smith entered the carryout, they noticed only two people in the store, both of whom were behind the counter. Bryson asked about a type of beer, and the storeowner, Sohail Darwish, came around the counter and walked over to the cooler to assist him. Darwish retrieved a forty-ounce beer bottle from the cooler and placed it on the counter. Bryson did the same. As Darwish was ringing up the sale on the cash register, Smith brandished a black gun and ordered Darwish to "open the cash register, motherfucker."

Darwish, who was standing next to Bryson, put his hands up in the air and did not resist. Bryson went behind the counter and hit several buttons on the cash register, trying to open it. Bryson then ordered Darwish to open the cash register, which he did. Darwish then put his hands back up in the air.

Osand Tahboub, a former co-worker who was visiting Darwish at the carryout at that time, testified that the gunman then told Darwish to "move and empty your wallet, motherfucker." As Darwish was reaching for his wallet, Smith fired a single shot, hitting Darwish in the chest. Smith then ordered Tahboub to empty his wallet as well, and the two assailants then fled the scene. Darwish was able to push the alarm button before he fell to the floor. As a result of the single gunshot wound to the upper left side of his chest, Darwish bled to death.

After Smith and Bryson left the carryout, Layson, who was waiting in Bryson's car, noticed Smith holding a gun in his hand when he and Bryson climbed back into the automobile. According to Layson, Smith exclaimed, "Dang, I forgot the beer." When Bryson asked Smith "why did he do it," Smith replied that he shot the man "in the arm" because "he moved too slow," and that "he took too long . . . opening the cash register."

According to Layson, Smith then said, "Fuck him, he in our neighborhood anyway. He shouldn't be in our neighborhood with a store no way." Later, Smith and Bryson split the money taken in the robbery, which was apparently over $ 400. They also gave Layson all the stolen food stamps from the robbery plus $50.

On June 9, approximately two weeks after the murder, police detective Dennis Richardson received information that persons possibly involved in a homicide were incarcerated in the Sandusky County Jail. Based on this and other information he received from sources, Richardson made up an eight-man photo array, including a photo of Herbert Bryson, to show to Tahboub. The next day, upon viewing the array, Tahboub selected Bryson's photo as "not the guy with the gun, but the other guy." Based on this information and the fact that computer records showed Smith as a known associate of Bryson, Richardson compiled a second photo array that included a picture of Smith. Richardson showed Tahboub the second photo array, and Tahboub immediately selected Smith's photo as that of the gunman.

Consequently, Smith was arrested, and along with Bryson and Layson, was indicted by the grand jury in the Darwish murder. In count one, Smith was charged with aggravated felony-murder during an aggravated robbery. A death penalty specification attached to this count alleged that Smith was the principal offender in the aggravated murder during a robbery, R.C. 2929.04(A)(7). The second count charged Bryson and Layson with aggravated felony-murder during an aggravated robbery. Counts three through five charged all three defendants with aggravated robbery of the carryout, of Darwish, and of Tahboub respectively. All five counts also carried firearm specifications.

State v. Smith, 89 Ohio St.3d 323, 731 N.E.2d 645, 648-49 (2000), recons. denied, 90 Ohio St.3d 1419, 735 N.E.2d 457 (2000), cert. denied, 531 U.S. 1167, 121 S.Ct. 1131, 148 L.Ed.2d 997 (2001).

At trial, Mahdi was convicted of aggravated felony-murder and of three counts of aggravated robbery. He presented no evidence in the guilt phase. At the subsequent penalty phase, Mahdi's presentation included testimony of a Muslim counselor that Mahdi had converted to Islam while awaiting trial and now counseled other prisoners. The counselor also testified that Mahdi had told him that the shooting had been unintentional, that Mahdi had been nervous and scared, and that the trigger had just gone off. Mahdi's wife testified that Mahdi had been upset and nervous the evening of the shooting and for days afterward. She further testified that, when he heard on the news that Darwish was dead, Mahdi sat down and cried and told her that the murder had been an accident. Moreover, Mahdi's wife testified that, on the afternoon before the crime, she and her husband went to see the film Menace II Society, whose opening scene depicted an interracial crime in which a black man had words with a store owner and angrily shot him. A psychologist also testified at the mitigation hearing and noted the striking parallels between the film and the crime, opining that it could not have been coincidence that Mahdi later committed a crime so similar to the one he witnessed in the film. In addition, the psychologist testified to the effects of various social and cultural factors on Mahdi, all of which, he believed, impaired Mahdi's ability to conform his conduct to the law. The psychologist further opined that these factors combined with Mahdi's difficult childhood caused a mental illness, although the psychologist was unable to identify the illness with specificity due to Mahdi's lack of cooperation during the interview process.

At the end of the mitigation hearing, the jury returned with a death sentence; in turn, the trial court sentenced Mahdi to death and to a consecutive term of eighteen to fifty-three years in prison. On direct appeal, the state court of appeals affirmed the convictions and sentences. The Ohio Supreme Court affirmed the court's decision. State v. Smith, 731 N.E.2d at 660. Mahdi subsequently exhausted his state post-conviction remedies.

In 2002, Mahdi filed a federal habeas corpus petition, raising the following ten claims as grounds for relief: (1) trial counsel were ineffective in failing to voir dire prospective jurors on racial bias; (2) the trial court erred in failing to instruct the jury on the lesser included offense of involuntary manslaughter; (3) the penalty-phase jury instructions were incorrect; (4) the state court of appeals denied Mahdi his constitutional rights by refusing to consider residual doubt; (5) trial counsel were ineffective in not objecting to flawed penalty-phase jury instructions and in not requesting a competency hearing; (6) counsel rendered ineffective assistance in the state court of appeals; (7) trial counsel were ineffective in the penalty phase in not presenting certain mitigating evidence; (8) the trial court erred in failing to hold a competency hearing sua sponte; (9) the cumulative effect of the errors and omissions presented in the habeas petition deprived Mahdi of his constitutional rights; and (10) the Ohio Supreme Court conducted an inadequate proportionality review. Mahdi abandoned the tenth claim in his reply brief. The district court denied the rest of the petition and dismissed ...