Richey v. Bradshaw

• Decision Date: 10 August 2007
• Docket Number: No. 01-3477.,01-3477.
• Citation: 498 F.3d 344
• Parties: Kenneth T. RICHEY, Petitioner-Appellant, v. Margaret BRADSHAW, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

498 F.3d 344

Kenneth T. RICHEY, Petitioner-Appellant, v. Margaret BRADSHAW, Respondent-Appellee.

No. 01-3477.

United States Court of Appeals, Sixth Circuit.

Argued: January 24, 2007.

Decided and Filed: August 10, 2007.

ARGUED: Kenneth J. Parsigian, Goodwin Procter, Boston, Massachusetts, for Appellant. Michael L. Collyer, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Kenneth J. Parsigian, Paul E. Nemser, Goodwin Procter, Boston, Massachusetts, for Appellant. Michael L. Collyer, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

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

COLE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. SILER, J. (p. 364-65), delivered a separate opinion concurring in part and dissenting in part.

OPINION

R. GUY COLE, JR., Circuit Judge.

This case is on remand to us from the Supreme Court. On January 25, 2005, we reversed the judgment of the district court denying Kenneth Richey's petition for a writ of habeas corpus, on the grounds that (1) Ohio law did not permit Richey to be convicted of aggravated felony murder on a transferred-intent theory, and (2) the state courts unreasonably applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in holding that Richey had not been deprived of constitutionally effective representation. Richey v. Mitchell, 395 F.3d 660 (6th Cir. 2005). The Supreme Court vacated our judgment, holding that we erred in our interpretation of Ohio law on the transferred-intent issue. Further, the Court held that we had not properly examined whether the arguments and evidence that formed the basis for our ruling on Richey's ineffective-assistance-of-counsel claim were procedurally barred. Bradshaw v. Richey, 546 U.S. 74, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005).

Consistent with the Supreme Court's remand instructions, we now revisit Richey's ineffective-assistance claim. For the reasons set forth below, we hold that Richey did not procedurally default this claim, that we properly considered it on the merits, and that the record supports our original conclusion granting Richey habeas relief because his trial attorney did not function as counsel guaranteed by the Sixth and Fourteenth Amendments.

I. FACTS

The details of this case were extensively set forth in our prior opinion, Richey, 395 F.3d at 664-71, familiarity with which is presumed. Here, we provide only a summary of the most important facts.

A. The Trial

In 1986, when he was twenty-one, Kenneth Richey was convicted and sentenced to death by an Ohio state court for aggravated felony murder in connection with the death of two-year-old Cynthia Collins.

The State argued at trial that in the early morning hours of Monday, June 30, 1986, Richey intentionally set fire to the apartment of Hope Collins, Cynthia's mother, due to a jealous rage directed at Candy Barchet, Richey's ex-lover. Barchet occupied the apartment immediately beneath Collins's and that night she was with another man, Mike Nichols, with whom she had just begun a relationship. The State conceded at trial that it had no evidence suggesting that Richey intended to kill two-year-old Cynthia. The State argued instead that by lighting fire to Collins's apartment, Richey intended to kill Barchet and Nichols in Barchet's apartment below.

The evidence presented at trial established that on the evening of Sunday, June 29, Richey and other residents of the New Farm Village apartments in Columbus Grove, Ohio, including Collins, Barchet, and Nichols, partied together. Several witnesses testified that Richey was very intoxicated and smoked marijuana that night.

Barchet testified that she had ended her relationship with Richey on the Wednesday or Thursday prior to the fire. At some point during the evening of June 29, however, a discussion took place between Barchet, Nichols, and Richey, in which Barchet made it clear that while she and Richey could remain friends, she wanted to pursue a romantic relationship with Nichols. Witness Bob Dannenberger testified that Richey seemed upset by Barchet's preference for Nichols, "as if his heart was broken." (Joint Appendix ("JA") 5080.) Peggy Villearreal (a.k.a. Peggy Price), an apartment resident and friend of Richey's, also thought he seemed upset by Barchet's rejection of him, but when she asked him about it, Richey told her that he was not going to let it bother him.

At about 1:00 in the morning, Barchet and Nichols left the party, which by this point had migrated to Villearreal's apartment. Richey continued hanging out at Villearreal's, and while talking with Dannenberger, Villearreal, and another resident, he said that Building A of the three-building apartment complex would "burn" that night. Richey further said that he would use the skills he learned while serving in the U.S. Marines to torch the place. It does not appear that anyone took Richey's comments seriously at the time. Dannenberger testified that he thought Richey had just made the kind of remark that people sometimes make while intoxicated.

At about 3:00 or 3:15 in the morning, Denny Smith, one of Collins's friends, stopped by. Collins testified at trial that Richey agreed to babysit Cynthia in exchange for being able to sleep on her couch, while she went out with Smith. A resident who was awakened by Smith's pick-up truck testified that after Collins drove off with Smith, she saw Richey stumble into some bushes and pass out. A few minutes later, Richey revived and began walking toward Collins's apartment, but the resident did not see whether he actually ended up there.

The fire started in Collins's apartment around 4:15 a.m. No one saw Richey set the fire or flee the burning apartment. However, numerous witnesses testified that they saw Richey standing on the landing to Collins's apartment screaming that there was a baby inside. Richey attempted to enter the apartment, apparently in an effort to rescue Cynthia, but was forced back by the smoke and flames. One firefighter agreed that Richey's actions were indicative of someone completely disregarding his own safety. Ultimately, firefighters had to restrain Richey because he was so distraught.

Once the fire had been brought under control, Barchet was allowed back into her apartment to retrieve clothing and diapers for her son. Richey apparently followed her and told her that if he could not have her, nobody would, and that he would take care of her after Nichols left.

The State argued at trial that Richey set the fire by using accelerants. Specifically, the State maintained that Richey stole gasoline and paint thinner from a greenhouse located across the street, poured these in Collins's living room and patio, and then ignited them. To substantiate its theory, the State put on two expert witnesses from the state fire marshal's office and the state arson lab. Robert Cryer, an investigator with the fire marshal's office, testified that the speed and intensity of the fire, as well as the burn patterns, established that the fire was caused by the use of accelerants. Cryer testified, "This fire occurred by an accelerant being poured on the living room carpeting and out through and down onto the patio decking. . . . [I]t is very definite that an accelerant was poured on the decking of the patio. It was very definite that an accelerant was poured in the living room on the carpeting." (JA 5695.) In addition, Bob Gelfius, a forensic chemist with the state arson lab, testified that he used a method called gas chromatography to identify the presence of accelerants in the remains of Collins's living-room carpet and on samples of wood from her patio. Gelfius testified that he found paint thinner and gasoline on the carpet and paint thinner on the wood samples.

Richey's trial counsel, William Kluge, retained Gregory DuBois to investigate the cause of the fire and test the conclusions of the State's experts. DuBois did not have any special expertise in arson investigations and little arson-related training. Indeed, his arson training consisted of only two two-day seminars put on by the state arson lab, whose conclusions in Richey's case he had been hired to review. Kluge contacted DuBois in early September 1986, but did not authorize DuBois to start his investigation until approximately mid-November 1986. The work DuBois performed was limited to meeting with Bob Gelfius, the State's expert, for the purpose of having Gelfius review the forensic evidence and explain his conclusions. DuBois then informed Kluge that he agreed with the State's conclusion that the fire was caused by arson. Kluge did not question DuBois about the nature of his investigation or ask him to explain why he concurred with the State. DuBois explained that Kluge "was surprisingly nonargumentative with me or didn't challenge me on what I thought or why I thought what I did or anything. I was surprised at how unbiased he was about that, and I still am today." (JA 6361.)

Prior to knowing what DuBois's testimony would entail, Kluge disclosed him as a trial witness. When the State figured out that Kluge was not going to call DuBois, Richey's only scientific expert, the State subpoenaed DuBois, who then conceded on the stand that he agreed with the State's analysis of the evidence, and agreed that the fire was caused by arson. Kluge did not object to DuBois's testimony and did not cross-examine him. Further, Kluge did not introduce any competing scientific evidence to rebut the State's findings. Kluge largely limited his cross-examination of the State's experts to the issues of whether any accelerants had been found on Richey's clothing and boots (they had not) and to the chain of custody of Collins's living-room carpet, which had been discarded at the county dump, prior to being tested for the presence of accelerants. Thus, Richey's sole forensic expert testified against him at trial, and the State's assertions that the fire was...