657 F.3d 293 (6th Cir. 2011), 08-3249, Jalowiec v. Bradshaw

Docket Nº:08-3249.
Citation:657 F.3d 293
Opinion Judge:McKEAGUE, Circuit Judge.
Party Name:Stanley JALOWIEC, Petitioner-Appellant, v. Margaret BRADSHAW, Respondent-Appellee.
Attorney:Kimberly S. Rigby, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant. Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. Kimberly S. Rigby, Gregory W. Meyers, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant. Charles L. Wille, Off...
Judge Panel:Before: GILMAN, ROGERS, and McKEAGUE, Circuit Judges.
Case Date:September 07, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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657 F.3d 293 (6th Cir. 2011)

Stanley JALOWIEC, Petitioner-Appellant,

v.

Margaret BRADSHAW, Respondent-Appellee.

No. 08-3249.

United States Court of Appeals, Sixth Circuit.

September 7, 2011

Argued: June 9, 2010.

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ARGUED:

Kimberly S. Rigby, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant.

Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

ON BRIEF:

Kimberly S. Rigby, Gregory W. Meyers, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant.

Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: GILMAN, ROGERS, and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

This is an appeal from a denial of habeas relief. Petitioner Stanley Jalowiec was convicted of murder and sentenced to death. After the Ohio courts denied Jalowiec's requests for appellate and post-conviction relief, the district court denied all forty-seven claims of error asserted in Jalowiec's petition for writ of habeas corpus. We certified five claims for appeal. In these claims, petitioner contends that he was denied a fair trial due to the prosecution's wrongful suppression of Brady material; that he was denied effective assistance of counsel at trial by virtue of defense counsel's undisclosed conflict of interest and, in the penalty phase, because counsel failed to object to hearsay evidence and failed to adequately prepare and present mitigation evidence; and that he was denied effective assistance of counsel on appeal, because counsel failed to assert claims based on trial counsel's conflict of interest and wrongful admission of hearsay evidence at trial. For the reasons that follow, we conclude that none of the claims warrants habeas relief and we therefore affirm the judgment of the district court.

I. BACKGROUND

The body of Ronald Lally was found on a cemetery roadway in Cleveland on January

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19, 1994. Lally had suffered a gunshot wound to the head and other blunt force injuries causing death. Lally had been expected to testify for the prosecution in a criminal trial set to begin later that day. The criminal trial involved drug-trafficking charges against Raymond Smith and his son Danny Smith. After an extensive investigation, Stanley Jalowiec was indicted in March 1995 in Lorain County, Ohio, charged with murdering Lally. Raymond Smith was also charged with the murder. In a separate trial, Raymond Smith was found guilty in December 1995 and sentenced to death in January 1996. Jalowiec's trial began in March 1996.1

The indictment charged Jalowiec with aggravated murder for causing Lally's death purposely and with prior calculation and design, and included specifications for killing Lally to prevent his testimony in a criminal proceeding, and for firearm possession. The prosecution's case was based largely on the testimony of Raymond Smith's other son, Michael Smith, who testified that he had been present at the time of Lally's murder, but had not participated. The defense introduced no proofs in the guilt phase of the trial. The facts shown by the trial proofs were summarized by the Ohio Supreme Court in State v. Jalowiec, 91 Ohio St.3d 220, 744 N.E.2d 163 (2001), as follows:

On the morning of January 19, 1994, a partially clad male body was found in Woodland Cemetery in Cleveland. Two weeks later, the body was identified as that of Ronald Lally of Elyria. Over a year later, the grand jury indicted defendant-appellant, Stanley E. Jalowiec, for aggravated murder, with firearm and death-penalty specifications. The indictment alleged that Jalowiec purposely killed Lally to prevent him from testifying in criminal proceedings, which had been scheduled to begin on January 19, 1994. Subsequently, a jury found Jalowiec guilty as charged, and he was sentenced to death.

In June 1993, Ron Lally contacted the Elyria police to volunteer as a police informant. Lally signed an agreement to become a confidential informant for the Elyria police and agreed to make controlled drug buys. On June 7, 1993, with the assistance of Officer Scott Ashley and Detective Alan Leiby, Lally made a controlled drug buy of crack cocaine from Danny Smith and his father Raymond Smith while wired with a hidden monitoring device. As a result of the controlled buy, police arrested both Raymond Smith and Danny Smith in August 1993 and charged them with aggravated drug trafficking. Both cases were eventually set for trial on January 19, 1994.

On January 18, 1994, the evening before the murder, Brian Howington and Jalowiec went to several bars in downtown Elyria. (Howington knew Jalowiec because Jalowiec used to visit Howington's aunt, Joann Corrine Fike, when Howington lived with her.) Jalowiec then asked Howington to accompany him to a friend's house on Middle Avenue. There, Howington met Ron Lally and his roommate, and the four of them smoked crack cocaine. Around 11:30 p.m., Jalowiec, Howington, and Lally went to Fike's house and " [s]hot pool, partied some more."

About an hour later, Jalowiec got a page and asked Howington if he could borrow Fike's car, a Chrysler LeBaron convertible. Though Howington was hesitant,

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he relented after Jalowiec persisted. Around 1:00 a.m., Jalowiec and Lally left Fike's house in the LeBaron. The next time Howington saw the car was around 5:00 a.m. when Jalowiec and Raymond Smith returned it to Fike's apartment. At that time, the car was covered with ice, and Jalowiec and Smith told Howington that the car had been washed. Fike testified that Jalowiec told her that he had washed the car because there was blood on it as a result of a fight he had had with someone at Mom's Open Kitchen.

Sharon Hopkins testified that she was at Razzle's bar in Elyria one night in January 1994 with her brother, Terry Hopkins, Raymond Smith, Danny Smith, Michael Smith (another son of Raymond), and several others, including Jalowiec. The group stayed at Razzle's until it closed and then, without Jalowiec, went to eat at Mom's Open Kitchen until around 2:45-3:00 a.m.

After leaving Mom's, Sharon Hopkins rode in Danny Smith's car with several people including Raymond, Danny, and Michael Smith. They traveled on Middle Avenue past the railroad tracks just outside the Elyria city limits and dropped Raymond and Michael Smith off by a wooded area. They drove back over the tracks and pulled into a parking lot. Approximately five to ten minutes later, a convertible drove over the tracks to where they had dropped off Raymond and Michael Smith. Danny Smith said, " That is it."

Several minutes later, the convertible drove by again heading toward town, and Danny Smith's car began to follow it. Shortly thereafter, Danny Smith signaled the convertible to pull over and ducked down in the front passenger seat while telling Sharon Hopkins to get out and ask the people in the convertible whether they had picked up Michael Smith. Sharon Hopkins saw Jalowiec get out of the driver's seat of the convertible. Jalowiec responded that Michael Smith was in the car. Although Sharon Hopkins could not see the other occupants, she could tell that there were four people inside the convertible. Danny Smith then drove Sharon Hopkins home.

Later that morning, at around 3:30-4:00 a.m., Danny Smith arrived back at his apartment. Terry Hopkins arrived a little later and noticed that Danny Smith was " nervous and said he was feeling sick to his stomach." Danny Smith told Hopkins that " they had done it, they did it." Hopkins then went back to his sister's apartment across the street from Danny Smith's apartment. Later, Hopkins visited Danny Smith again and also saw Jalowiec, Raymond Smith, and Michael Smith. Jalowiec said, " They stomped him and ran him over with a car." The others there indicated that " they shot him and cut him." According to Hopkins, they were " [k]ind of like bragging about it." Danny Smith told Hopkins they wanted this person killed because he had worn " a wire on him on a drug sale."

At approximately 9:55 a.m. on January 19, 1994, Cleveland homicide detective Michael Beaman was summoned to Woodland Cemetery. A male body had been found on a cemetery roadway. Some of the victim's clothing was nearby in a snow bank. There was no identification on or near the victim and police did not learn the identity of the victim, Lally, until a few weeks later.

Dr. Heather Raaf, a forensic pathologist with the Cuyahoga County Coroner's Office, performed the autopsy on Lally. Dr. Raaf testified that teeth in Lally's mouth had been knocked out by a gunshot. Dr. Raaf estimated that Lally had

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sustained at least eleven blows to his head and that his injuries were consistent with being stomped or struck by a vehicle several times. Dr. Raaf determined that Lally's death resulted from a gunshot wound to the head and multiple blunt impacts to the head.

The drug trafficking cases against Danny and Raymond Smith were subsequently dismissed because Lally, the primary witness in both cases, was dead.

After an extensive police investigation, the grand jury indicted Jalowiec on March 8, 1995, for aggravated murder with a firearms specification. In addition, a death-penalty specification alleged that Jalowiec purposely killed Lally in order to prevent his testimony as a witness in a criminal proceeding.

At trial, the key witness for the prosecution was Michael Smith, son of Raymond Smith and brother of Danny Smith. Michael Smith contacted Detective Leiby in April 1994 because he was bothered about having witnessed the Lally murder. During Raymond Smith's murder trial, Michael Smith had been unavailable to testify, and the prosecution proffered testimony...

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