Sowell v. Bradshaw

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: Rogers
• Citation: Sowell v. Bradshaw, 372 F.3d 821 (6th Cir. 2004)
• Decision Date: 23 June 2004
• Docket Number: No. 02-3441.,02-3441.
• Parties: Billy Joe SOWELL, Petitioner-Appellee, v. Margaret BRADSHAW, Warden, Respondent-Appellant.

Page 821

372 F.3d 821

Billy Joe SOWELL, Petitioner-Appellee, v. Margaret BRADSHAW, Warden, Respondent-Appellant.

No. 02-3441.

United States Court of Appeals, Sixth Circuit.

Argued: October 29, 2003.

Decided and Filed: June 23, 2004.

COPYRIGHT MATERIAL OMITTED

Mark A. Vander Laan (argued and briefed), Christopher R. McDowell (briefed), Dinsmore & Shohl, Cincinnati, OH, Randall L. Porter (briefed), David H. Bodiker, Public Defenders Office, Ohio Public Defender Com'n, Columbus, OH, for Petitioner-Appellee.

Michael L. Collyer, Asst. Atty. Gen. (argued and briefed), Office of the Attorney General of Ohio, Cleveland, OH, Charles L. Wille (briefed), Office of the Attorney General of Ohio, Columbus, OH, for Respondent-Appellant.

Before BATCHELDER, MOORE, and ROGERS, Circuit Judges.

ROGERS, J., delivered the opinion of the court, in which BATCHELDER, J., joined. MOORE, J. (pp. 838-41), delivered a separate dissenting opinion.

OPINION

ROGERS, Circuit Judge.

The state of Ohio indicted Petitioner Billy Joe Sowell for murder, with a stipulation that he could receive the death penalty. Relying on advice of his counsel, Sowell opted to be tried by a three-judge panel rather than by a 12-member jury. Sowell's counsel was confident that one of the three judges on the panel would refuse to recommend death. The panel nevertheless imposed the death penalty, and Sowell's direct and collateral appeals through the Ohio courts were unsuccessful. On federal habeas review, however, the district court granted a writ of habeas corpus, finding that Sowell's jury waiver was not knowing and intelligent, and that his counsel was ineffective. We reverse the district court's grant of a writ of habeas corpus to Sowell because he has not demonstrated that his jury waiver was not knowing and intelligent or that his counsel was ineffective.

FACTS AND PROCEDURAL HISTORY

As the facts that underlie Sowell's death penalty are not in controversy, we rely on the Ohio Court of Appeals's version:

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."

Ohio v. Sowell, No. C-830835, 1986 WL 9082, at *1-*2 (Ohio Ct.App. Aug.20, 1986) (footnotes omitted); see also Ohio v. Sowell, 39 Ohio St.3d 322, 530 N.E.2d 1294, 1297-98 (Ohio 1988).

The Trial Court Proceeding

On May 26, 1983, a Hamilton County grand jury indicted Sowell on one count of aggravated murder in violation of Ohio Revised Code ("O.R.C.") § 2903.01(A), and one count of attempted murder in violation of O.R.C. §§ 2903.01(A) and 2923.02(A). The aggravated murder count contained a capital specification alleging that the aggravated murder was part of a course of conduct involving the aggravated murder of one person and the attempt to murder another. See O.R.C. § 2929.04(A)(5) ("Imposition of the death penalty for aggravated murder is precluded, unless ... the following is specified in the indictment ... and proved beyond a reasonable doubt: ... the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender.").¹

On October 14, 1983, Sowell appeared before the trial judge, Judge Crush. Sowell waived his right to a jury trial and asked to be tried by a three-judge panel, as Ohio's capital scheme allows. See O.R.C. § 2945.06. Trial began on October 18, and on October 20 the panel unanimously found Sowell guilty of all charges, including the capital specification. The sentencing phase (also called the "mitigation phase") was held on November 2, and, on the following day, the panel sentenced Sowell to death on the aggravated murder count and 7 to 25 years on the attempted murder count.

The Direct Appeal

Sowell appealed to the Ohio Court of Appeals, which affirmed the conviction and sentence on August 20, 1986. Sowell, 1986 WL 9082. The Supreme Court of Ohio similarly affirmed, on November 16, 1988, see Sowell, 39 Ohio St.3d 322, 530 N.E.2d 1294; and the U.S. Supreme Court denied certiorari, see Sowell v. Ohio, 490 U.S. 1096, 109 S.Ct. 2444, 104 L.Ed.2d 999 (1989). This ended Sowell's direct appeal. Thus far, Sowell had not complained that his waiver of jury trial had been invalid.

The State Post-Conviction Proceedings

On December 20, 1989, Sowell filed in the Hamilton County Court of Common Pleas a post-conviction petition that raised 41 claims for relief, the 29th of which argued that Sowell's jury waiver was not knowing, voluntary, and intelligent. His sole support for this claim was an affidavit attached to the petition, in...