Awkal v. Mitchell

• Decision Date: 23 July 2010
• Docket Number: No. 01-4278.,01-4278.
• Citation: 613 F.3d 629
• Parties: Abdul AWKAL, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

613 F.3d 629

Abdul AWKAL, Petitioner-Appellant,

v.Betty MITCHELL, Warden, Respondent-Appellee.

No. 01-4278.

United States Court of Appeals,Sixth Circuit.

Argued: Dec. 2, 2009.

Decided and Filed: July 23, 2010.

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ARGUED: R. Brian Moriarty, Cleveland, Ohio, for Appellant. Benjamin C. Mizer, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Kevin M. Cafferkey, Thomas F. O'Malley, Jr., Law Offices, Cleveland, Ohio, for Appellant. Benjamin C. Mizer, David M. Lieberman, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, McKEAGUE, GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges. ^*

GILMAN, J., delivered the opinion of the court, in which BATCHELDER, C.J., BOGGS, GIBBONS, ROGERS, SUTTON, McKEAGUE, GRIFFIN, KETHLEDGE, and WHITE, JJ., joined, with WHITE, J. (p. 649), also delivering a separate concurring opinion. MARTIN, J. (pp. 649-658), delivered a separate dissenting opinion, in which MOORE, COLE, and CLAY, JJ., joined.

OPINION

RONALD LEE GILMAN, Circuit Judge.

Abdul Awkal was convicted by an Ohio jury on two counts of aggravated murder for the shooting deaths of his wife and brother-in-law in 1992. The jury recommended a sentence of death, and the trial court sentenced Awkal accordingly. Awkal now appeals the district court's denial of his petition for a writ of habeas corpus.

In his petition, Awkal argues that (1) his counsel was ineffective at the guilt phase of his trial for calling a psychiatrist who directly contradicted the defense's theory of not guilty by reason of insanity, (2) his counsel was ineffective at the penalty phase for failing to introduce records of his previous involuntary hospitalization and for failing to present testimony of competent mental health experts, and (3) the prosecutor's statement in closing argument about Awkal's being able to “walk out the door” if found not guilty by reason of insanity was prosecutorial misconduct. For the reasons set forth below, we AFFIRM the judgment of the district court in denying Awkal's petition for habeas relief.

I. BACKGROUND

In affirming both Awkal's murder conviction and death sentence on direct appeal, the Supreme Court of Ohio provided a thorough description of the relevant facts and subsequent trial:

On January 7, 1992 ... Abdul Hamin Awkal, shot and killed his estranged wife, Latife Awkal, and his brother-in-law, Mahmoud Abdul-Aziz, at the Family Conciliation Services Department of the Cuyahoga Domestic Relations Court. [Awkal] was captured in the courthouse basement not far from where the shooting took place.

Awkal arrived in the United States from Lebanon about 1984, when he was twenty-four. He lived with family members in Detroit, Michigan, and worked as a dishwasher and gas station attendant. In 1985, Awkal suffered a mental breakdown at the gas station after he believed he had been accused of theft by his employer. He became hysterical, cursing and breaking things, vomited and then collapsed. He was taken to Detroit Medical Center in a straitjacket. Awkal was apparently released into his brother's custody later that same day, but disregarded instructions to follow up with a psychiatrist.

Later, Awkal began working at a General Motors factory in Michigan. He was eventually transferred to the Chevrolet plant in Parma, Ohio. He had difficulty sleeping during this period, and was prescribed medication to help him sleep.

Awkal's family arranged for him to meet his wife, Latife, after his arrival in Cleveland. This type of arranged marriage was common in his Islamic faith. Awkal's need for sleeping pills diminished after he met his wife. Awkal and Latife were married under Islamic law in March 1989 and under Ohio law in April 1989. Later in 1989, Awkal went to Cleveland Metropolitan General Hospital complaining of numbness down his side. Although Awkal was again told to talk to a psychiatrist, he never did so. Awkal and Latife had a daughter, Zaynab, born in September 1990.

On their honeymoon, Latife told Awkal she did not love him, but that she understood that love would follow. He unsuccessfully attempted to improve their relationship by opening a bank account for her, teaching her to drive, encouraging her to attend school, and helping her parents with various household tasks.

Latife and her brothers felt that Awkal was not a good Muslim. Awkal did not spend sufficient time in daily prayer and he enjoyed music and celebrating Christian holidays, such as Christmas. Latife and her brothers did not listen to music, or celebrate Christian holidays, and prayed five or six times a day. Latife's brother, Mahmoud Abdul-Aziz, tried to teach Awkal the tenets of their family's Islamic faith, but Awkal viewed Mahmoud's actions as interference with his freedom, and believed that he was harassed and threatened by Mahmoud because of his religious beliefs.

Awkal's marital life was dissolving. Latife spent many nights away from Awkal and eventually asked for an Islamic divorce. According to Awkal, a Muslim husband may divorce his wife merely by telling her, “I divorce you, I divorce you, I divorce you.” Awkal granted her request on October 13, 1991, but then Latife agreed to remarry him under Islamic law. Latife felt that she had been

shamed and that her baby had been made illegitimate by the divorce.

On October 16, 1991, Latife found out that she had contracted a venereal disease from Awkal. The next day, Latife moved out of the marital home, moved in with Mahmoud, and started divorce proceedings. A divorce complaint and motions for spousal support, child support, visitation and restraining orders were filed in October 1991. Latife talked of returning to Lebanon with the baby.

Awkal was hurt by his family problems and sought counseling, but declined medication. Awkal had counseling sessions four times in November 1991, because he was depressed and suicidal. These feelings were brought on by the divorce and Awkal's belief that Latife's brothers and their religion had interfered with his life and his marriage. Awkal's psychological records reflect that he was very angry with Latife and her brothers because of the divorce.

On November 8, 1991, Awkal bought a nine-millimeter semi-automatic pistol, allegedly to defend himself from Latife's brothers. The evening of that same day and the morning of the next, Awkal called Latife and her brother, Omar Abdul-Aziz, threatening to kill her and her entire family if the divorce was not dismissed. Latife reported the call to her divorce attorney, who sent a letter to Awkal's attorney regarding the threats.

Awkal attended hearings in his divorce case on December 10, 17, and 19, 1991, without incident. During this period, Awkal and Latife agreed to a child visitation schedule and temporary child and spousal support. At Latife's insistence, the visitation order prohibited Awkal from participating in any Christmas-related activities with the baby during his visitation. Awkal also agreed that the family checking accounts, containing approximately $4,800, which had been frozen by the domestic relations court, were to be equally divided between Latife and Awkal.

A meeting was scheduled for 2:00 p.m. on January 7, 1992, at the Family Conciliation Services Department, Room 52, located in the basement of the old Cleveland courthouse. Latife came early to the meeting with her brother, Mahmoud, and her baby. They waited in the hall outside for Awkal to arrive.

Awkal arrived at the courthouse parking garage at 1:48 p.m. from Michigan, where he had spent the weekend with relatives. On his person were copies of the baby's medical records, which had been checked out from the treating HMO over a month earlier, and numerous childcare supplies, including diapers, baby food, and clothing. Prior to the meeting, Awkal wrote a check to his brother for nearly the entire contents of the frozen checking accounts, and changed his address at the post office to his brother's house in Michigan.

Awkal confronted Mahmoud and Latife in the hallway at approximately 2:00 p.m. No harsh words or raised voices were heard from the hall before the shooting. However, “panicky” voices were heard immediately before the three entered Room 52. Awkal chased Latife and Mahmoud into the room, where he shot his wife and her brother at close range. Five shell casings were found inside the room; one shell casing was found in the hall outside the room.

Awkal then picked up the baby from the bench outside the room and walked quickly through the basement halls of the courthouse with her in his arms. Several armed deputies confronted Awkal in the hallway. Awkal pointed his gun at his head and then at his daughter's head, threatening to kill her and

then himself. Awkal vowed that nobody was going to take his baby.

When a deputy tried to grab Awkal's gun, Awkal backed further down the hall with the baby. While proceeding down the hall, Awkal was confronted by another deputy, who attempted to disarm Awkal. Awkal evaded this attempt, but was shot in the back while trying to escape.

When Awkal was taken into custody, his pistol was cocked, ready to fire, and contained six live rounds (one in the chamber; five in the magazine). Awkal also had another magazine containing thirteen rounds of live ammunition in his coat pocket. The bullets retrieved from Mahmoud's body and from Room 52 were fired from Awkal's gun.

At the hospital the next day, Awkal, after being advised of his Miranda rights, told police that he had confronted Mahmoud in the hallway and demanded that Mahmoud “profess that Allah was the only God.” When Mahmoud did not do so, Awkal shot the victims. Awkal stated that he thought that he had shot himself.

Awkal was indicted on two counts of aggravated murder with prior calculation and design, including the multiple-murder death

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