Mapes v. Coyle

• Decision Date: 30 April 1999
• Docket Number: Nos. 96-4189,96-4196,s. 96-4189
• Citation: 171 F.3d 408
• Parties: David A. MAPES, Petitioner-Appellee/Cross-Appellant, v. Ralph COYLE, Warden, Respondent-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 408

171 F.3d 408

David A. MAPES, Petitioner-Appellee/Cross-Appellant, v. Ralph COYLE, Warden, Respondent-Appellant/Cross-Appellee.

Nos. 96-4189, 96-4196.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 27, 1998.

Decided March 24, 1999.

Rehearing and Rehearing En Banc Denied April 30, 1999.

Harry R. Reinhart (argued and briefed), Reinhart Law Office, Carol Wright (briefed), Columbus, Ohio for Petitioner-Appellee/Cross-Appellant.

Stuart A. Cole, Asst. Attorney Gen. (argued and briefed), Matthew J. Lampke, Office of the Attorney General of Ohio, Capital Crimes Section, Columbus, Ohio, for Respondent-Appellant/Cross-Appellee.

Before: RYAN, SILER, and DAUGHTREY, Circuit Judges.

RYAN, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. SILER, J. (pp. 429-31), delivered a separate opinion concurring in part and dissenting in part.

OPINION

RYAN, Circuit Judge.

Warden Ralph Coyle appeals from the recommendation by a federal magistrate judge, adopted by the district court, that a conditional writ of habeas corpus should issue barring Ohio from carrying out the death sentence imposed on petitioner David A. Mapes by an Ohio state court. Mapes cross-appeals the denial of his habeas petition concerning his judgment of conviction. We find that, with one possible but important exception, Ohio courts did not deprive Mapes of any constitutionally guaranteed right. The exception is the significant likelihood that Mapes's appellate counsel was unconstitutionally ineffective. Thus, while we must affirm the district court's rejection of Mapes's challenge to his conviction, we will remand so that the district court can determine, in an evidentiary hearing, whether the performance of Mapes's appellate counsel fell below the constitutional minimum.

I. PROCEDURAL HISTORY

A.

On the morning of January 30, 1983, two or three armed men entered Chap's Bar in Cleveland, Ohio, and attempted to rob its employees. In the course of the robbery, one of the owners of the bar, John Allen, was shot and killed. Later, upon hearing news accounts of this crime, a Cleveland man contacted the police and indicated that David Mapes had earlier attempted to recruit him to help commit the robbery at Chap's. The police then showed Mapes's photo, in a photo array, to one of the survivors of the robbery. That person, John Hovekamp, selected three photos that resembled the gunman; one was of Mapes. Mapes was arrested and placed in a lineup. Hovekamp positively identified him as the Chap's gunman.

Mapes admitted that he had participated in the robbery, but claimed that he was not the gunman. However, Mapes's accomplice testified at trial that Mapes was the shooter, as did another survivor, Ronald Rucci. Mapes's wife and a neighbor testified at trial that Mapes owned a sawed-off shotgun like the one used at Chap's, and police found shells, of the same type used to kill Allen, in a drainpipe hole at Mapes's apartment. Not surprisingly, an Ohio jury convicted the petitioner of aggravated murder.

Mapes had been charged with a death-penalty "specification" alleging that he had previously been convicted of an offense, an essential element of which was the purposeful killing of another. This specification was tried to the judge alone. Because Mapes had pleaded non vult, or "no contest," in 1972 to a charge of murder in New Jersey, the Ohio trial court found Mapes guilty of the specification. One of Mapes's habeas corpus assignments of error is that the trial court wrongly excluded evidence that Mapes was not the "triggerman" in the New Jersey killing. Mapes did not, however, contest the fact that he had previously been convicted of murder.

The trial court's finding regarding the prior conviction made Mapes preliminarily "eligible" for the death penalty and required that the jury hear evidence regarding seven statutory aggravating and mitigating factors and, based on its determination whether the aggravating factors outweighed the mitigating factors or vice versa, recommend to the court that Mapes should or should not be sentenced to death. The only evidence of mitigation Mapes submitted was his unsworn statement that he was only 18 years old at the time of the New Jersey murder, that the conviction was really for manslaughter in light of the sentence he received, and that he was not responsible for the actual shooting. In rebuttal, the prosecutor emphasized the fact that Mapes's statement was unsworn--thereby preventing cross-examination--and argued that the statement was irrelevant in any case. The court then instructed the jury that it must reach unanimity on whether to recommend the death penalty before it could consider a recommendation of a term of imprisonment. Ultimately, Mapes was sentenced to death.

B.

A new attorney was appointed to represent Mapes on his direct appeal to the Ohio Court of Appeals, and counsel brought 12 assignments of error. Of the 12, 11 pertained to the guilt phase of trial. In the only sentencing argument, Mapes alleged that, by commenting on the fact that his mitigation statement was unsworn, the prosecutor had infringed on Mapes's Fifth Amendment right to remain silent. Appellate counsel did not raise several sentencing issues about which trial counsel had made contemporaneous objections. Mapes's judgment of conviction and his death sentence were affirmed by the Ohio Court of Appeals, State v. Mapes, No. 47191, 1984 WL 5285 (Ohio Ct.App. Oct. 25, 1984), and they were affirmed again upon appeal to the Ohio Supreme Court, State v. Mapes, 19 Ohio St.3d 108, 484 N.E.2d 140 (Ohio 1985).

C.

Mapes then obtained a third attorney, and petitioned the trial court for post-conviction relief. That counsel argued that Mapes's trial and appellate lawyers had both rendered ineffective assistance, and that the trial court had committed seven reversible errors. The trial court declined to grant relief, ruling that it had no authority to overrule the court of appeals' affirmance of Mapes's conviction and sentence. The court of appeals affirmed the trial court's decision, holding that the trial judge had correctly refused to pass on Mapes's assignments of error. State v. Mapes, No. 56608, 1990 WL 20864 (Ohio Ct.App. Mar. 8, 1990). Finally, the Ohio Supreme Court dismissed Mapes's appeal from the denial of post-conviction relief, ruling that "no substantial constitutional question" existed. State v. Mapes, 53 Ohio St.3d 703, 558 N.E.2d 57 (1990).

D.

On January 10, 1991, Mapes filed his habeas corpus petition in the federal court. He brought 15 assignments of constitutional error. The petition was referred to a magistrate judge who declined to address the constitutional merits of many of these, for the reason that seven of the assignments of error presented in Mapes's habeas petition were not presented on his direct appeal, and thus were deemed precluded by Ohio courts on post-conviction appeal. That is, an adequate and independent state-law ground existed for denying relief even if Mapes's trial was constitutionally flawed.

Of the remaining eight assignments of error, the magistrate judge recommended that all but one be dismissed. The only claim credited by the magistrate judge was that Mapes had received ineffective assistance of appellate counsel by virtue of counsel's failure to argue on direct appeal that the trial court had impermissibly precluded the jury from considering mitigating factors relating to the prior guilty plea Mapes had entered in New Jersey. Thus, the magistrate judge recommended a grant of Mapes's petition unless Ohio courts granted another review within 90 days. The district court agreed, and this timely appeal followed.

II. STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996, or AEDPA, was signed into law on April 24, 1996. Pub.L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254 (1996)). However, it does not apply to habeas petitions pending on that date. See Lindh v. Murphy, 521 U.S. 320, 321-23, 117 S.Ct. 2059, 2061, 138 L.Ed.2d 481 (1997); Rickman v. Bell, 131 F.3d 1150, 1154 (6th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1827, 140 L.Ed.2d 962 (1998). Because Mapes's habeas petition was filed in 1991, the pre-AEDPA standard of review applies, which we recently summarized in Rickman. That is, primary, or historical, facts found by state courts are presumed correct and are rebuttable only by clear and convincing evidence. Determinations of law, or determinations involving mixed questions of fact and law, however, receive de novo review. Rickman, 131 F.3d at 1153.

III. ANALYSIS

A. Substantive Trial Error

Mapes argues in his habeas appeal that the trial court committed a number of reversible errors. He contends that the trial court misinstructed the jury on several matters; that the jury was allowed to return inconsistent verdicts at the guilt phase; that the jury was allowed to return a non-unanimous verdict at the sentencing phase; that the trial court was biased against Mapes and committed judicial misconduct; and that the court wrongly excluded relevant evidence at the bench trial on the prior-murder-conviction specification. Of course, we are concerned only with errors of constitutional dimension; moreover, even constitutional errors will not be noticed if an adequate and independent state-law ground exists for upholding the conviction or sentence. See Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Upon a careful review of the record and the parties' briefs, we conclude that Mapes is foreclosed from bringing most, but not all, of the alleged assignments of error because he failed to raise them in Ohio courts--and this failure is an adequate and independent ground for affirmance.

Since the central issue before us is whether, as the federal district court found, Mapes's appellate counsel was constitutionally ineffective for failing to raise several alleged trial errors, we must first determine...