Dickerson v. Bagley, 04-4277.

• Decision Date: 07 July 2006
• Docket Number: No. 04-4277.,04-4277.
• Citation: 453 F.3d 690
• Parties: Frederick DICKERSON, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 690

453 F.3d 690

Frederick DICKERSON, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee.

No. 04-4277.

United States Court of Appeals, Sixth Circuit.

Argued: February 2, 2006.

Decided and Filed: July 7, 2006.

ARGUED: David L. Doughten, Cleveland, Ohio, for Appellant. Anna Marie Franceschelli, Attorney General's Office of Ohio, Columbus, Ohio, for Appellee. ON BRIEF: David L. Doughten, Cleveland, Ohio, Jeffrey James Helmick, Gamso, Helmick & Hoolahan, Toledo, Ohio, for Appellant. Todd W. Newkirk, Attorney General's Office of Ohio, Columbus, Ohio, for Appellee.

Before: MERRITT, MARTIN, and SILER, Circuit Judges.

MERRITT, J., delivered the opinion of the court, in which MARTIN, J., joined.

SILER, J. (pp. 700-02), delivered a separate opinion concurring in part and dissenting in part.

MERRITT, Circuit Judge.

In a fit of anger and jealousy, the petitioner Dickerson shot and killed Kevin McCoy, his girlfriend's new lover. At the same time he shot and killed an innocent bystander at the scene, Nicole McClain, a young girl, who happened to be present in the apartment when Dickerson killed McCoy. There is no question about Dickerson's guilt. Dickerson waived trial by jury in favor of trial before a panel of three judges as permitted under Ohio law. Finding two aggravating elements — (1) the killing of two persons (2) during the course of another felony, i.e., breaking and entering a home — which outweighed any mitigating circumstances, the three-judge panel sentenced Dickerson to death.¹ Dickerson asserted a number of constitutional errors on appeal and in state post-conviction proceedings. After exhausting his remedies in the state courts, the federal district court denied all of his claims.

Our review of the record in this case reveals that counsel for Dickerson at the mitigation phase of the bifurcated proceeding rendered ineffective assistance of counsel in violation of the Sixth Amendment. Counsel did not properly conduct a mitigation investigation and, therefore, did not learn of or prove facts about Dickerson's family, educational, social and medical history — for example, with an IQ of 77, he was at the borderline of retardation — that would have given the three-judge panel strong reasons for reducing the penalty from death to life imprisonment. The decisions of the Ohio courts and the district court below excuse counsel's failure to investigate mitigation evidence on the ground of "trial strategy and tactics." This theory is flatly contradicted by the holdings of a series of Supreme Court cases and Sixth Circuit cases, as discussed below. We will first set forth the standard of review under AEDPA, 28 U.S.C. § 2254(d). We will next discuss this ineffective assistance of counsel claim as the basis for our granting of habeas relief requiring a new trial at the sentencing phase of the case. We will then focus on other claims that do not justify the grant of relief.

I. Standard of Review

We review the record and Dickerson's constitutional claims against the backdrop of AEDPA, 28 U.S.C. § 2254(d). The statute limits the grant of federal habeas relief to cases in which a petitioner's state court "adjudication . . . (1) was contrary to, or. . . an unreasonable application of, clearly established Federal [Supreme Court] law. . . or (2) . . . was based on an unreasonable determination of the facts . . . ." Relevant Supreme Court precedent creating such AEDPA law includes "not only bright-line rules but also the legal principles and standards flowing from precedent," Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir.2005) (quoting Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir.2002)), and cases establishing "a rule designed for the specific purpose of evaluating a myriad of factual contexts," Wright v. West, 505 U.S. 277, 309, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring), a standard elaborated by Justice Kennedy later adopted by the Court. See Williams, 529 U.S. at 391, 120 S.Ct. 1495 ("That the Strickland test `of necessity requires a case-by-case examination of the evidence' obviates neither the clarity of the rule nor the extent to which the rule must be seen as `established' by this Court.") (internal citation omitted); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 2471, 162 L.Ed.2d 360 (2005) (O'Connor, J., concurring) (noting the "`case-by-case examination of the evidence' called for under our cases"); Williams, 529 U.S. at 382, 120 S.Ct. 1495 (Stevens, J., dissenting in part) ("In the context of this case, we also note that, as our precedent interpreting Teague has demonstrated, rules of law may be sufficiently clear for habeas purposes even when they are expressed in terms of a generalized standard rather than as a bright-line rule."); Graham v. Collins, 506 U.S. 461, 506, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (Souter, J., dissenting) ("One general rule that has emerged under Teague is that application of existing precedent in a new factual setting will not amount to announcing a new rule.").

A state court decision is contrary to clearly established Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [its] precedent." Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. A state court unreasonably applies clearly established Supreme Court precedent "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case" or "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407, 120 S.Ct. 1495.

II. Constitutional Standard for Ineffective Assistance of Counsel

A violation of the Sixth Amendment right to effective assistance of counsel has two elements: a petitioner must show (1) that counsel's performance was deficient, and (2) that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It is beyond dispute that the Strickland standard, a broad standard of general application predating Dickerson's trial, constitutes in this case "clearly established Federal law, as determined by the Supreme Court of the United States." See Williams, 529 U.S. at 391, 120 S.Ct. 1495; Davis v. Straub, 430 F.3d 281, 292 (6th Cir.2005) (Merritt, J., dissenting) (discussing the Supreme Court's adoption of the "spectrum of abstraction" of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), in construing 28 U.S.C. § 2254(d)(1)).

A. Deficiency

1. Failure to Conduct a Thorough and Complete Mitigation Investigation

To establish deficiency, the first element of the Strickland test, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Carrying forward the "effective assistance of counsel" principles first established in capital cases in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and Strickland, the Supreme Court, in the last three years, in two different death penalty ineffective assistance of counsel cases, has made it clear and come down hard on the point that a thorough and complete mitigation investigation is absolutely necessary in capital cases. The Court has relied on 1989 and 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, for the required norms and duties of counsel. Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (incorporating the 1989 Guidelines as stating the required professional obligation to conduct a complete mitigation investigation); Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 2466 n. 7, 162 L.Ed.2d 360 (2005) (relying on 2003 ABA Guidelines as "later, and current, ABA Guidelines relating to death penalty defense"). Our Court has also made it clear that this means that counsel for defendants in capital cases must fully comply with these professional norms, Hamblin v. Mitchell, 354 F.3d 482, 485-88 (6th Cir.2003) (briefly outlining the historical development of the requirement of effective assistance of counsel in capital cases). In Hamblin we said that in order to satisfy the requirements of the effective assistance of counsel requirement of the Sixth Amendment, ABA Guidelines establish the relevant criteria:

New ABA Guidelines adopted in 2003 simply explain in greater detail than the 1989 Guidelines the obligations of counsel to investigate mitigating evidence. The 2003 ABA Guidelines do not depart in principle or concept from Strickland, Wiggins or our court's previous cases concerning counsel's obligation to investigate mitigation circumstances. . . .

Id. at 487. We then quoted the ABA Guidelines that create the required standards of performance for counsel in capital cases regarding the investigation of mitigating circumstances, norms that Dickerson's counsel fell far short of meeting:

Counsel's duty to investigate and present mitigating evidence is now well established. The duty to investigate exists regardless of the expressed desires of a client. Nor may counsel sit idly by, thinking that investigation would be futile.

Counsel cannot responsibly advise a client about the merits of different courses of action, the client cannot make informed decisions, and counsel cannot be sure of the client's competency to make such decisions unless counsel has first conducted a thorough investigation with respect to both phases of the case.

Because the sentences in a capital case must consider in mitigation, anything in the life of the defendant which might...