Sowell v. Anderson, 111611 FED6, 08-3522

Docket Nº:08-3522, 08-3575
Opinion Judge:ROGERS, Circuit Judge.
Party Name:Billy Joe Sowell, Petitioner-Appellee/Cross-Appellant, v. Carl Anderson, Warden, Mansfield Correctional Institution, Respondent-Appellant/Cross-Appellee.
Attorney:Robert E. Prather, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Mark A. Vander Laan, DINSMORE & SHOHL LLP, Cincinnati, Ohio, for Appellee. Robert E. Prather, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant. Mark A. Vander Laan, DINSMORE & SHOHL LLP, Cinci...
Judge Panel:Before: BATCHELDER, Chief Judge; MOORE and ROGERS, Circuit Judges. ALICE M. BATCHELDER, Chief Judge, concurring in part and dissenting in part.
Case Date:November 16, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Billy Joe Sowell, Petitioner-Appellee/Cross-Appellant,

v.

Carl Anderson, Warden, Mansfield Correctional Institution, Respondent-Appellant/Cross-Appellee.

Nos. 08-3522, 08-3575

United States Court of Appeals, Sixth Circuit

November 16, 2011

Argued: October 13, 2010

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 94-00237—Edmund A. Sargus, Jr., District Judge.

COUNSEL

ARGUED:

Robert E. Prather, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant.

Mark A. Vander Laan, DINSMORE & SHOHL LLP, Cincinnati, Ohio, for Appellee.

ON BRIEF:

Robert E. Prather, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant.

Mark A. Vander Laan, DINSMORE & SHOHL LLP, Cincinnati, Ohio, Randall L. Porter, OHIO PUBLIC DEFENDER'S OFFICE, Columbus, Ohio, for Appellee.

Before: BATCHELDER, Chief Judge; MOORE and ROGERS, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Billy Joe Sowell was convicted of aggravated murder and sentenced to death by a three-judge panel in 1983. At sentencing, counsel's mitigation strategy was to portray Sowell as a good person who lost his temper under the influence of drugs and alcohol. Counsel pursued this strategy despite having available the reports of several court-appointed mental health experts, which hinted at Sowell's difficult upbringing but did not provide specific details about his severely impoverished and abusive childhood. Despite these reports, counsel did not conduct an investigation into Sowell's background or interview any of his family members. Had they done so, there is a reasonable probability that the additional mitigating evidence would have led at least one of the panel judges to vote against the death penalty. The district court therefore properly granted habeas relief on this basis.

I.

The facts underlying Sowell's conviction are not in dispute. As we did in our initial review of Sowell's petition, we rely on the Ohio Court of Appeals' version of the facts:

The record discloses that [Sowell] and [Calvert] Graham resided in adjacent apartments on the third floor of an apartment building in downtown Cincinnati. [Sowell] was the resident manager of the building and became acquainted with Graham, who performed occasional odd jobs at the apartment building. After Graham became a resident in [Sowell's] apartment building, the two men developed a friendly relationship and visited one another in their respective residences.

On May 1, 1983, three days prior to the instant offenses, [Sowell] was a guest in Graham's apartment. Also present were Donna Edwards (Edwards), a woman with whom Graham shared the apartment, and [Pam] Billups [a former prostitute who had been visiting Graham and Edwards]. Graham offered two marijuana cigarettes to [Sowell], which he accepted. Thereafter [Sowell] left the apartment in the company of Billups and proceeded to a nearby restaurant where he purchased dinner for her. En route to the restaurant, [Sowell] smoked the second marijuana cigarette, having consumed the first at Graham's residence. Thereafter the pair made their way to a hotel where [Sowell] rented a room. There was conflicting testimony concerning the events that transpired thereafter. However, it is not disputed that [Sowell] eventually lost consciousness, having consumed an unspecified quantity of wine during the evening in addition to the marijuana. The next morning [Sowell] made his way back to his residence, stopping along his route to obtain breakfast for Billups.

[Sowell] next encountered Billups on the afternoon of May 4, 1983. Billups was in the company of Edwards and the trio passed in the doorway of a store but did not acknowledge one another. As will be seen, this seemingly inconsequential meeting gained significance later in the day.

That evening [Sowell] returned to his apartment building after, according to his testimony, visiting no less than five taverns and consuming at least one double shot of vodka at each stop. Upon returning to his apartment building [Sowell] realized that he was not in the mood to retire for the evening, and instead presented himself at Graham's apartment. Graham greeted [Sowell] and invited him inside, where Edwards and Billups were also present. Graham produced a marijuana cigarette which was consumed by all four occupants.

[Sowell] testified before the trial court that following the consumption of the marijuana, he fell asleep for a short time. When he awoke the others were still present and [Sowell] discovered that approximately $190 had been removed from his trouser pocket. At first [Sowell] thought that the trio was playing a joke upon him; however, his requests for the return of his money received no response. [Sowell] further testified that Graham then picked up a knife and ordered [Sowell] to leave the residence. [Sowell] complied and departed, but he was extremely angry as a result of his loss.

Both Billups and Edwards told the trial court that [Sowell's] visit to the apartment on the day in question was at first friendly. However, [Sowell] soon became agitated and accused Billups of being unsociable in that she did not speak to him earlier that afternoon. [Sowell] also accused Billups of stealing $24 from him during their encounter three days earlier. When [Sowell] referred to Billups in terms meant to insult her pedigree, Graham ordered [Sowell] to leave the premises. [Sowell] left, stating that he was going to obtain his gun, return and shoot Billups.

[Sowell] went directly to his apartment where he directed his common-law wife, Lenora Waugh (Waugh), to bring his gun to him. Waugh complied with that request, as well as with [Sowell's] instructions to accompany him to Graham's apartment. Upon returning to Graham's door, Waugh, at [Sowell's] instruction, knocked and indicated to those inside that she was a woman named Portia. Graham responded to the door and opened it. Edwards and Billups testified, and the trial court found, that [Sowell] forced his way into the apartment, firing a bullet from his handgun into the ceiling as he entered. [Sowell] demanded to know Billups's whereabouts and threatened to shoot her. Graham was able to calm [Sowell] and began to escort him from the apartment and to close the door, whereupon [Sowell] suddenly turned and shot Graham in the abdomen. As Graham fell, [Sowell] fired a second shot into Graham's skull. Graham fell to the floor, mortally wounded.

[Sowell] next made his way to the closet in which Billups was cowering, and fired three bullets into her body. [Sowell] next placed the gun to Billups's forehead and pulled the trigger. However, the gun did not expel a bullet because it no longer contained ammunition. [Sowell] left the apartment after warning Edwards not to leave the premises or he would shoot her also. [Sowell] returned to his apartment, obtained money and made his way to a nearby tavern where he was apprehended by the police.

[Sowell] testified regarding the shootings and told the court that he returned to Graham's apartment to demand his money and that he was confronted by Graham, who was armed with a knife. [Sowell] stated that it was only after Graham made a furtive movement that [Sowell] began shooting at Graham, and that one of the bullets struck the ceiling. [Sowell] explained his conduct as follows: "It just, I just clocked out. When I seen that person going this way I just pivoted, I pivoted on my gun, I was shooting, I was angry, I started shooting, I just started shooting everybody I seen."

State v. Sowell, No. C-830835, 1986 WL 9082, at *1-2 (Ohio Ct. App. Aug. 20, 1986) (footnotes omitted).

Sowell was indicted on one count of aggravated murder for the shooting of Graham, and one count of attempted murder for the shooting of Billups. The aggravated murder count contained a capital specification alleging that the shooting was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons. See O.R.C. § 2929.04(a)(5). Relying on the advice of trial counsel, Sowell waived his right to a jury trial and opted for trial by a three-judge panel, see O.R.C. § 2945.06, which unanimously found Sowell guilty of both counts, including the capital specification.

The defense's mitigating evidence consisted of an unsworn statement by Sowell, the testimony of five witnesses who knew Sowell as an adult, and the submission of several psychological reports prepared by court-appointed mental health experts. Also before the panel was the presentence investigation (PSI) report prepared by the probation department. None of this material revealed any substantial details about Sowell's background or family history. The panel unanimously sentenced Sowell to death on the aggravated murder count, and to a term of seven to twenty-five years of imprisonment on the attempted murder count. Sowell's conviction and sentence were upheld on direct appeal and his petition for state post-conviction relief was unsuccessful at trial and on appeal.

Sowell's federal habeas petition was initially dismissed without prejudice for failure to exhaust the Ohio Supreme Court's Murnahan procedure for raising claims of ineffective assistance of appellate counsel. See State v. Murnahan, 584 N.E.2d 1204, 1209 (Ohio 1992). After the Ohio courts denied his Murnahan motions, Sowell renewed his federal habeas petition on May 24, 1994, raising fifty-two claims. The district court conducted an evidentiary hearing allowing Sowell to develop one of these claims—that his waiver of a jury trial was not knowing and intelligent. Our initial review of Sowell's petition reversed the district court's conditional grant of habeas relief on that claim. Sowell v. Bradshaw, 372 F.3d 821, 838 (6th Cir. 2004).

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