Esparza v. Anderson

Decision Date12 July 2012
Docket NumberCASE NO. 3:96 CV 7434
PartiesGregory Esparza, Petitioner, v. Carl Anderson, Warden, Respondent.
CourtU.S. District Court — Northern District of Ohio

JUDGE CHRISTOPHER A. BOYKO

MEMORANDUM OF OPINIONAND ORDER

CHRISTOPHER A. BOYKO, J:

I. Introduction

This matter is before the Court upon the parties' cross-briefs (ECF # 170, 174, 178, 179) regarding the nature and scope of the Court's authority to revisit this Court's October 13, 2000 Memorandum of Opinion & Order (ECF # 132) granting Esparza's Petition for Writ of Habeas Corpus, in light of the Supreme Court's recent decision in Cullen v. Pinholster, 563 U.S. ----, 131 S.Ct. 1388 (U.S. 2011).

For the following reasons, the Court finds it has the authority to re-evaluate that portion of this Court's prior Opinion & Order granting Esparza's Petition for Writ of Habeas Corpus with respect to Esparza's claims that (1) the trial court violated his constitutional rights when itdenied his request for a continuance (Claim 39); (2) trial counsel provided ineffective assistance during the mitigation phase of the proceedings (Claim 44); and (3) there was cumulative error during the sentencing phase (Claim 52). The Court further finds that, in conducting this review, it is now limited under Pinholster to considering only that evidence that was before the state courts, and may not consider any evidence adduced during the evidentiary hearing previously conducted in these federal habeas proceedings. Upon consideration of these Claims based solely on the state court record, this Court finds they are without merit and denies Esparza's Petition for Writ of Habeas Corpus in its entirety.

II. Background

A. Factual History and State Court Proceedings

The Ohio Supreme Court set out the factual history of this case, as revealed by the evidence adduced at Esparza's trial, as follows:

At approximately 9:30 p.m. on February 12, 1983, a man entered the Island Variety Carryout in Toledo, Ohio, wearing a green ski mask and a dark blue jacket. The victim, Melanie Gerschultz, and James Barrailloux, both store employees, were the only other persons present and were standing in the back of the store as the man entered. The man approached the pair, pointed a small black handgun at them and ordered one of them to open the cash register at the front of the store. Gerschultz complied and walked towards the cash register. As she opened the register, Barrailloux crouched down and left the store through the rear door, entering the attached home of the store owner, Evelyn Krieger. While he was alerting Krieger of the robbery, they heard a gunshot. Barrailloux and Krieger re-entered the store to find Gerschultz lying on the floor with a fatal gunshot wound in her neck. The cash register was open and approximately $110 was missing. A small round hole was found in the sheet of clear Plexiglas located to the side of the cash register, through which the bullet had apparently passed.

State v. Esparza, 529 N.E.2d 192, 194 (Ohio 1988).

On October 13, 1983, Esparza was indicted on one count of aggravated murder and one count of aggravated robbery in connection with the death of Melanie Gerschultz. Esparza pleaded not guilty to the charges and proceeded to trial on May 4, 1984. The jury returned a guilty verdict as to both charges on Thursday, May 10, 1984. Denying defense counsel's request for a continuance, the trial court ordered that the sentencing hearing begin five days later, on Tuesday, May 15, 1984. The jury returned two days later with the recommendation that Esparza be given the death penalty. The trial judge accepted the jury's recommendation and sentenced Esparza to death.

In the years that followed, Esparza attacked his convictions and sentence via direct appeal, post-conviction relief, and a Rule 26(B) Application for Re-Opening. His convictions were affirmed on direct appeal by both the Ohio Court of Appeals and the Ohio Supreme Court. See State v. Esparza, 1986 WL 9101 (Ohio Ct. App. Aug. 22, 1986); State v. Esparza, 529 N.E.2d 192 (Ohio 1988).1 Esparza's first and second petitions for post-conviction relief were both denied without an evidentiary hearing. See State v. Esparza, No. CR-83-6602 (Ohio Ct. Common Pleas June 18, 1990); State v. Esparza, 1992 WL 113827 (Ohio Ct. App. May 29, 1992); State v. Esparza, 602 N.E.2d 250 (Ohio 1992). Esparza's Rule 26(B) Application for Relief pursuant to State v. Murnahan, 584 N.E.2d 1204 (Ohio 1992) was ultimately denied as well. See State v. Esparza, 1995 WL 302302 (Ohio Ct. App. May 19, 1995); State v. Esparza, 660 N.E. 2d 1194 (Ohio 1996).2

B. Federal District Court Habeas Proceedings Prior to Remand

On September 5, 1996, Esparza filed his Petition for Writ of Habeas Corpus in this Court, raising fifty-six (56) claims for relief. (ECF # 12). On that same date, Esparza filed a motion for stay of execution, which this Court granted on September 6, 1996. (ECF # 11, 13). Respondent filed his Return of Writ on October 25, 1996 (ECF # 16), and Esparza filed his Traverse on April 1, 1997 (ECF # 33).

Esparza also filed motions for discovery, to expand the record, and for an evidentiary hearing. This Court, through Judge Kathleen O'Malley,3 allowed Esparza to conduct limited discovery and granted his Motion for an Evidentiary Hearing. (ECF # 41). This hearing was conducted on August 17 - 18, 1999. Seven witnesses testified, including one of Esparza's trial counsel (Keithly Sparrow) and an expert in neuropsychology (Dr. Michael Gelbort). With regard to Esparza's claim of ineffective assistance of counsel ("IAC") during the mitigation phase, the Court summarized the evidence adduced during the evidentiary hearing as follows:

During the evidentiary hearing held by this Court on August 17, 1999, attorney Keithly Sparrow testified about his representation of Esparza during the sentencing phase of the proceeding. Sparrow testified that he had not begun preparation for the mitigation phase of the trial until Esparza was found guilty, late in the day on Thursday May 10, 1984. The sentencing phase of the trial began on Monday, May 14, 1984. He, accordingly, had only a few days, over a weekend, to prepare for the mitigation phase. He requested an independent psychologist to help thedefense with the mitigation proceedings, but did not explain to the trial court why psychological aid was necessary in order to present potential mitigating factors. The judge, thus, denied this motion.
In the evidentiary hearing held before this Court on August 18, 1999, it was established that Esparza suffers from damage to the frontal lobes of his brain (caused by a traumatic head injury as a child) and that this injury interferes with his ability to properly understand the consequences of his actions before he acts, to plan ahead or to inhibit impulsive behaviors. Esparza's intelligence level is also on the borderline of mental retardation. If Mr. Sparrow had investigated Esparza's prior records, he would have discovered this information and been in a position to support his request for an independent psychologist. He also would have been in a position to share these facts about Esparza with the jury.
After being denied an opportunity to pursue issues regarding Esparza with an independent psychologist, Mr. Sparrow requested a pre-sentence investigation and psychological report. He did so, however, without doing any independent investigation of Esparza's history and home life, and without understanding that anything included in that report likely would be admitted into evidence. Mr. Sparrow did not collect any information, or give any information to the agency that created these reports. These reports, which were created in only one day, were furnished to the court during a hearing on Saturday, May 12, 1984. Mr. Sparrow also made no effort to locate and interview mitigation phase witnesses until after the guilty verdict. While Mr. Sparrow did call a few witnesses in the sentencing phase, Esparza's grandfather, aunt, brother and foster-parent, he did not interview them beforehand to determine what they might offer the jury by way of insight into Esparza. Mr. Sparrow also did not call Esparza to present an unsworn statement or apology to the jury during the mitigation hearing, even though Esparza would not have been subject to cross-examination for that statement. Nor did Mr. Sparrow present evidence of Esparza's remorse for the crime.

(ECF # 132 at 123-139).

In a Memorandum of Opinion & Order dated October 13, 2000 (ECF # 132), the Court found four of Esparza's fifty-six claims for relief to be well-taken, i.e. Claims 1, 39, 44, and 52. In these Claims, Esparza argued that (1) the indictment was defective because it failed to contain all of the elements necessary to charge Esparza with capital murder (Claim 1); (2) the trial courtviolated his constitutional rights when it denied defense counsel's request for a continuance to prepare for the sentencing hearing (Claim 39); (3) he was deprived of his constitutional rights in light of the ineffective assistance of his counsel during the mitigation phase (Claim 44); and (4) the convictions and death sentence are unreliable due to cumulative error in the sentencing phase. (Claim 52).

The Court agreed with Esparza as to each of these four Claims and granted Esparza's Petition in part.4 Specifically, as to Claim 1, the Court held the indictment in the instant case failed to contain an appropriate capital specification because it did not charge Esparza either with being the "principal offender" or with having committed murder with "prior calculation and design." The Court further noted that, because the trial court based its jury instructions on the indictment, the trial court failed to instruct the jury that in order to convict Esparza of capital murder, as distinct from mere aggravated murder, it must find that he was either the principal offender or that he committed the murder with prior calculation and design. In light of these errors, ...

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