738 F.3d 741 (6th Cir. 2013), 13-3368, McGuire v. Warden, Chillicothe Correctional Inst.

Docket Nº:13-3368.
Citation:738 F.3d 741
Opinion Judge:ROGERS, Circuit Judge.
Party Name:Dennis B. McGUIRE, Petitioner-Appellant, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent-Appellee.
Attorney:Allen L. Bohnert, Federal Public Defender's Office, Columbus, Ohio, for Appellant. Seth P. Kestner, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. Gary W. Crim, Dayton, Ohio, Robert K. Lowe, Kelle Hinderer Andrews, Office of the Ohio Public Defender, Columbus, Ohio, for Appell...
Judge Panel:Before: SILER, ROGERS, and SUTTON, Circuit Judges.
Case Date:December 30, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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738 F.3d 741 (6th Cir. 2013)

Dennis B. McGUIRE, Petitioner-Appellant,



No. 13-3368.

United States Court of Appeals, Sixth Circuit.

December 30, 2013

Argued: Dec. 16, 2013.

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Allen L. Bohnert, Federal Public Defender's Office, Columbus, Ohio, for Appellant.

Seth P. Kestner, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.


Gary W. Crim, Dayton, Ohio, Robert K. Lowe, Kelle Hinderer Andrews, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant.

Seth P. Kestner, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: SILER, ROGERS, and SUTTON, Circuit Judges.


ROGERS, Circuit Judge.

Dennis B. McGuire, an Ohio death row inmate represented by counsel, appeals from a federal district court order denying his motion for relief from judgment filed pursuant to Federal Rule of Civil Procedure 60(b). In March 2008, the district court denied McGuire's original petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. This court affirmed the district court's denial, see McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir.2010), which became final when the Supreme Court denied a writ of certiorari in April 2011, __ U.S. __, 131 S.Ct. 2103, 179 L.Ed.2d 901 (2011). In his Rule 60(b)

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motion, McGuire sought to re-open a claim asserting the ineffectiveness of trial counsel arising from their failure to adequately investigate and present mitigation evidence at the penalty phase of trial, relying upon Martinez v. Ryan, __ U.S. __, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012). McGuire argues that the procedural default for this claim should be excused because his counsel on state post-conviction review was ineffective. For the reasons that follow, McGuire has not demonstrated the extraordinary circumstances required to justify relief from final judgment pursuant to Rule 60(b)(6).


The basic details of McGuire's trial, conviction, and sentence for the kidnapping, rape, and aggravated murder of Joy Stewart can be found in our previous opinion. 619 F.3d at 625-27. For the purposes of this appeal, which involves only the issue of the effectiveness of McGuire's penalty phase counsel in investigating and presenting mitigation evidence, we need only describe what that counsel actually presented during sentencing and how counsel's effectiveness in that regard was challenged during direct appeal and collateral review.

On direct appeal, the Ohio Supreme Court summarized the evidence presented in mitigation as part of that court's determination that the aggravating factors carried sufficient weight to support McGuire's capital sentence:

Apart from inappropriately relying on residual doubt, appellant presented a number of other factors offered in mitigation. Doris Newton, McGuire's mother, and Tonya Cross, his half-sister, testified about McGuire's turbulent childhood. The defendant was born in 1960. His parents divorced two years later, leaving McGuire in the sole care of his mother. McGuire's father took his older brother away, and McGuire had little contact with them after that, except when he would run away from home to see them.

McGuire lived with his mother until he was eighteen. During that time, his mother was involved with several men, some of who[m] physically beat her in front of the appellant, who was required on occasion to run for help. His mother and half-sister testified that these men did not abuse the appellant physically; however, they did inflict mental abuse by calling McGuire names, yelling at him, and generally treating him poorly. Some of these men, however, were good to the defendant, and one continued to be available to help him even after the marriage with appellant's mother ended.

Defendant was also moved frequently, attending various schools, but eventually dropping out after ninth grade. Defendant began using marijuana at the age of nine and continued doing so until his incarceration in 1990. While imprisoned, appellant has taken strides to improve his education. He has also committed only minor infractions while incarcerated.

Appellant has not demonstrated that the factors listed as mitigation outweigh the aggravated nature of the murder. While appellant's mitigation evidence is entitled to some weight, it is insufficient to overcome the aggravating circumstance in this case, that defendant committed rape in conjunction with murder. We therefore conclude under our independent review that the aggravating circumstances outweigh the mitigating factors in this case.

State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, 1123 (1997).

After McGuire was sentenced to death, he appealed to the Ohio Court of Appeals, although his appellate counsel, which had not represented him at trial or at sentencing, did not raise a claim of ineffective

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assistance of trial counsel. See State v. McGuire, No. CA95-01-001, 1996 WL 174609 (Ohio Ct.App. Apr. 15, 1996). That court affirmed the sentence of death. Id. at *14.

McGuire appealed to the Ohio Supreme Court. McGuire, 686 N.E.2d at 1112. His counsel at this stage, yet again different from both his trial counsel and intermediate appellate counsel, did raise a claim of ineffective assistance of penalty phase counsel for failure to investigate and present mitigation evidence, as Proposition of Law Seven. See id. at 1125. However, because the trial-level ineffectiveness claim had not been raised at the intermediate appellate level, the supreme court deemed it forfeited. See id. at 1117. Still, a substantive mitigation-IAC claim was also nested within a claim of ineffective assistance of appellate counsel, as a claim of ineffective assistance of intermediate-appellate counsel for failure to raise the mitigation-IAC claim. See id. at 1120. The state supreme court held that appellate counsel was not ineffective for failing to raise the mitigation-IAC claim:

McGuire also claims that appellate counsel were ineffective for not raising a number of alleged penalty-phase errors made by trial counsel. First, he claims " inadequate preparation and presentation of mitigation evidence," because counsel should have hired a " mitigation specialist" to gather mitigating evidence. However, he cites no authority that this is a requirement of effective assistance, and we hold that it is not. He further complains that trial counsel should have called more [than] just the two members of McGuire's family to testify in the penalty phase. But the record does not show that this resulted from inadequate investigation or incompetent decisionmaking. In addition, McGuire claims that Dr. Kuehnl, the defense psychologist who testified on his behalf, was inadequately prepared and should have performed routine tests to determine whether McGuire was suffering a mental disorder. McGuire appears to blame defense counsel for this, but the record provides no basis to do so. Kuehnl may have decided that such tests were unnecessary. If so, it seems reasonable that counsel would defer to the psychologist's professional judgment. Given the difficulty of proving ineffective assistance of trial counsel and the weakness of appellant's claims, McGuire's appellate counsel were not deficient in failing to raise the issue of ineffective trial counsel.

Id. The court ultimately affirmed McGuire's convictions and sentence of death. Id. at 1124.

McGuire filed a petition for post-conviction relief, which the trial court denied without an evidentiary hearing. In dismissing McGuire's claim, the trial court emphasized the failure of post-conviction counsel to attach documentary evidence outside the record to support his claim:

Petitioner claims that his counsel failed to properly prepare for the penalty phase.

As stated by the State in its response to this claim, Petitioner has failed to offer any documentary evidence to support the claimed failure to prepare.

On pages 31 through 33, Petitioner offers a mini-seminar relative to the proper manner in which to obtain and present mitigation evidence. On pages 34 and 35 Petitioner attempts to specifically set forth defense counsel's alleged failure. A review of the allegations reveals that for the most part Petitioner complains that the information presented fell short of that which was necessary to support the sentence preferred by Petitioner, i.e. life imprisonment. The claim is result oriented, i.e. because the jury recommended a sentence of death trial

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counsel must have been ineffective in their representation. Petitioner ignores the possibility that there was no additional mitigating evidence to present.

The record reveals that defense counsel acted professionally and effectively throughout the entire trial including the mitigation phase. If there is evidence outside the record to support a claim that defense counsel failed to properly prepare for the mitigation phase then same should have been attached to the Petition.

McGuire appealed the post-conviction trial court's decision, but did not challenge the trial court's ruling with respect to the mitigation-IAC claim. The Ohio Court of Appeals affirmed the denial of the petition. State v. McGuire, No. CA97-06-015, 1998 WL 191415, at *8 (Ohio Ct.App. Apr. 20, 1998). The Supreme Court of Ohio declined further review. State v. McGuire, 83 Ohio St.3d 1428, 699 N.E.2d 945 (1998).

McGuire filed a second post-conviction petition with the state trial court, raising only the mitigation-IAC claim. This time, McGuire supported the petition with six exhibits. The trial court denied McGuire's second petition for post-conviction relief. The court of...

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