Sowell v. Collins
| Citation | 557 F.Supp.2d 843 |
| Decision Date | 31 March 2008 |
| Docket Number | No. 1:94CV237.,1:94CV237. |
| Parties | Billy Joe SOWELL, Petitioner, v. Terry COLLINS, Warden, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
David Bodiker, Randall Lee Porter, Ohio Public Defender's Office, Columbus, OH, Mark Alan VanderLaan, Dinsmore & Shohl, Cincinnati, OH, for Petitioner.
Michael L. Collyer, Assistant Attorney General, Daniel R Ranke, Ohio Attorney General, Cleveland, OH, for Respondent.
Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. The Court's original disposition of this case was reversed by the Sixth Circuit Court of Appeals on June 23, 2004. See Sowell v. Bradshaw, 372 F.3d 821 (6th Cir.2004). This matter is before the Court upon remand from the Sixth Circuit for a decision on the merits of petitioner's remaining claims. For the reasons that follow, the writ of habeas corpus is conditionally granted.
This case does not turn on the propriety of capital punishment. That issue has been definitively addressed by the United States Supreme Court in pronouncements binding on this Court. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). It is, however, the obligation of this Court, under Article I § 10 of the Constitution and Section 2254 of Title 28, United States Code, to insure that the petitioner in this case has not been convicted or sentenced in violation of the Constitution of the United States.
This Court has recognized that it has no more important task than that of exercising its habeas corpus jurisdiction under 28 U.S.C. § 2254 in a case involving a sentence of death. Sowell v. Anderson, No. C-1-94-237, 2001 WL 1681142 (S.D.Ohio Oct.5, 2001) (citing Roe v. Anderson, C-1-96-825 (S.D. Ohio June 15, 2000)). The Constitution itself recognizes the writ of Habeas Corpus. U.S. CONST. ART. I, § 10. As the Supreme Court noted in Williams v. Taylor, 529 U.S. 362, 374-75, 120 S.Ct. 1495, 146 L.Ed.2d 389(2000):
In 1867, Congress enacted a statute providing that federal courts "shall have power to grant writs of habeas corpus in all cases where any person maybe restrained of his or her liberty in violation of the Constitution, or any treaty or law of the United States." Act of Feb. 5, 1867, Ch. 28 § 1, 14 Stat. 385. Over the years, the federal habeas corpus statute has been repeatedly amended, but the scope of that jurisdictional grant remains the same.
Applying those principles to this case, the Court concludes that a writ should be granted as to petitioner's first argument because petitioner received ineffective assistance of counsel during the penalty phase of his capital trial.
In its June 23, 2004 Opinion and Order, the Sixth Circuit relied on the statement of facts set forth by the Ohio Court of Appeals:
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:
Sowell v. Bradshaw, 372 F.3d 821, 823-27 (6th Cir.2004) (quoting Ohio v. Sowell, No. C-830-835, 1986 WL 9082, *1-2 (Ohio Ct. App. Aug.20, 1986) (footnotes omitted)).
The following additional facts are relevant to the issues before the Court. On May 26, 1983, a Hamilton County grand jury indicted petitioner 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. § 2923.02(A) as it related to § 2903.01(A). The aggravated murder count contained a death penalty specification alleging that the aggravated murder was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons.
On October 14, 1983, petitioner, on the advice of counsel, waived his right to a jury trial and elected to be tried by a three-judge panel. Martin Pinales, one of petitioner's trial counsel, testified at the evidentiary hearing conducted by this Court that he received the impression, following a pretrial conference with the presiding judge, "that if a jury was waived this would not be a capital case." (Evid. Hrg. Tr., at 9). Attorney Pinales advised petitioner of his view that petitioner would be spared the death penalty if he waived a jury trial. (Id. at 45). Pinales testified that he believed that he "had one no death penalty vote...
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