Van Hook v. Anderson

• Decision Date: 06 March 2009
• Docket Number: No. 03-4207.,03-4207.
• Citation: 560 F.3d 523
• Parties: Robert J. VAN HOOK, Petitioner-Appellant, v. Carl S. ANDERSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

560 F.3d 523

Robert J. VAN HOOK, Petitioner-Appellant, v. Carl S. ANDERSON, Warden, Respondent-Appellee.

No. 03-4207.

United States Court of Appeals, Sixth Circuit.

Argued: December 6, 2005.

Decided and Filed: March 6, 2009.

ARGUED: James D. Owen, The Owen Law Firm, Columbus, Ohio, Keith A. Yeazel, Columbus, Ohio, for Appellant. Stephen E. Maher, Office of the Attorney General of Ohio, Columbus, Ohio, for Appellee. ON BRIEF: Keith A. Yeazel, Columbus, Ohio, James D. Owen, The Owen Law Firm, Columbus, Ohio, for Appellant. Stephen E. Maher, Charles L. Wille, Office of the Attorney General of Ohio, Columbus, Ohio, for Appellee.

Before: MERRITT, MARTIN, and MOORE, Circuit Judges.

AMENDED OPINION

MERRITT, Circuit Judge.

At the request of the majority of the en banc court and in order to avoid the need for an en banc rehearing, the original panel amends its opinion of August 4, 2008, by deleting its discussion of counsel's failure to seek an independent mental health expert and the failure of counsel to object to the Presentence Report. Therefore, the sole basis for the issuance of the writ of habeas corpus is counsel's failure to investigate mitigating factors.

This is an appeal in an Ohio death penalty case by the prisoner, Van Hook, seeking habeas corpus relief under 28 U.S.C. § 2254. On the evening of February 18, 1985, petitioner Robert Van Hook arrived at a bar frequented by male homosexuals in Cincinnati, Ohio. He left the bar with David Self, and the two proceeded to Self's apartment. Once there, Van Hook strangled Self to the point of unconsciousness. He then brutally killed Self, stabbing him several times in the head and abdomen. After stealing a few items from Self's apartment, Van Hook fled to Florida, where he was apprehended over a month later and subsequently confessed to the murder.¹

Back in Ohio, Van Hook waived his rights to a trial by jury, and he pleaded not guilty and not guilty by reason of insanity. The three-judge panel, elected under Ohio law, rejected this defense and found him guilty of aggravated murder and aggravated robbery, which made him eligible for the death penalty under Ohio Rev.Code Ann. § 2929.04(A) (West 2008). Finding that the mitigating evidence did not outweigh the aggravators, the three-judge panel imposed the death penalty instead of life imprisonment.

Though he did not deny killing Self, Van Hook asserted unsuccessfully a variety of errors both on direct appeal and in state post-conviction proceedings. See State v. Van Hook, 39 Ohio St.3d 256, 530 N.E.2d 883 (1988), cert. denied, 489 U.S. 1100, 109 S.Ct. 1578, 103 L.Ed.2d 944 (1989). After exhausting all of his state court remedies, Van Hook sought a writ of habeas corpus in federal district court.

The district court denied the petition on all asserted claims of error. Our panel then reversed the judgment of the district court because under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), Van Hook's confession to the Cincinnati Police should have been suppressed. We pretermitted all other remaining issues. Van Hook v. Anderson, 444 F.3d 830 (6th Cir.2006), vacated en banc, 488 F.3d 411 (6th Cir.2007) (by a vote of 8-7), cert. denied, ___ U.S. ___, 128 S.Ct. 614, 169 L.Ed.2d 396 (2007). After the Sixth Circuit, en banc, vacated our judgment and affirmed the district court's denial of the petition on the confession issue, the majority returned this case to our panel to analyze Van Hook's remaining grounds for habeas relief.

After a careful review of the record, we conclude that Van Hook's trial counsel was ineffective during the mitigation phase of the trial, thereby violating his rights under the Sixth Amendment, as interpreted by the Supreme Court in three cases, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (incorporating the American Bar Association Guidelines For the Appointment and Performance of Counsel in Death Penalty Cases as the professional standard of performance), and Rompilla v. Beard, 545 U.S. 374, 387, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (same). His counsel was deficient by failing to fully investigate and present as evidence all available mitigating factors. We reverse the decision of the district court with respect to ineffective assistance of counsel at the mitigation phase of the trial. We remand the case to the district court with instruction to issue a writ of habeas corpus vacating Van Hook's death sentence unless the State conducts a new penalty phase proceeding within 180 days of remand.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244, et seq., was signed into law and became effective on April 24, 1996. Because Van Hook filed his habeas corpus petition on October 10, 1995, the Act does not apply as a constraint on our interpretation and application of constitutional standards in this death penalty case. See Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.1999). We review de novo the conclusions of the district court. See Powell v. Collins, 332 F.3d 376, 388 (6th Cir.2003).

Since 1984, the standard for whether counsel's ineffectiveness fell below the minimum requirements of the Sixth Amendment contains two components: (1) the deficient performance of counsel and (2) the resulting prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on an ineffective assistance of counsel claim, Van Hook must satisfy both the deficient performance and prejudice prongs of Strickland. See Harries v. Bell, 417 F.3d 631, 636 (6th Cir. 2005). For Van Hook to prove that his counsel's performance was constitutionally deficient, the performance must have fallen "below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. 2052, "under prevailing professional norms." While the Court in Strickland did not lay out a detailed, bright-line set of rules for determining whether counsel's performance is adequate, as it did later in Wiggins and Rompilla, the Court did require that in normal cases such as this one counsel must investigate fully all aspects of a case, id. at 691, 104 S.Ct. 2052 ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."). It explained that this duty is of utmost importance in capital murder cases, especially at the mitigation phase where the lawyer's work may be the difference between life and death. See id. at 706, 104 S.Ct. 2052 (Brennan, J., concurring in part and dissenting in part); Harries v. Bell, 417 F.3d at 637 ("The prospect of being put to death unless counsel obtains and presents something in mitigation magnifies counsel's responsibility to investigate") (emphasis and internal quotations omitted). Thus, the typical focus of analysis in an ineffective assistance of counsel during mitigation case is "whether the investigation supporting counsel's decision not to introduce mitigating evidence ... was itself reasonable." Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (emphasis in original).

After Strickland, this Court and the Supreme Court made clear in a number of cases that counsel in death cases should follow closely the ABA standards referred to above. See Wiggins v. Smith, 539 U.S. at 524, 123 S.Ct. 2527, Rompilla v. Beard, 545 U.S. at 387, 125 S.Ct. 2456 (2005) ("[W]e long have referred [to ABA standards] as guides to determine what is reasonable") (internal quotations omitted); Haliym v. Mitchell, 492 F.3d 680, 717-18 (6th Cir.2007) (explaining that "the fact that counsel's performance fell short of several of the American Bar Association's guidelines" further reinforced the conclusion that counsel's performance was deficient). We have explained clearly that the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases [hereinafter ABA Guidelines] provide the "guiding rules and standards to be used in defining the `prevailing professional norms' in ineffective assistance cases." Hamblin v. Mitchell, 354 F.3d 482, 486 (6th Cir.2003); see also Dickerson v. Bagley, 453 F.3d 690, 693 (6th Cir.2006) ("Our Court has made clear that ... counsel for defendants in capital cases must fully comply with [the ABA Guidelines].").

Van Hook is correct that the performance of his trial counsel was deficient during the mitigation phase because his attorneys failed to fully investigate and present evidence of all the potential mitigating factors that could have reduced his sentence from death to life imprisonment. Counsel has a duty to investigate fully, unless counsel makes a reasonable strategic choice to limit the investigation. See Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052 ("[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable judgments support the limitations on investigation.").

Our Court's precedents make clear that a partial but ultimately incomplete mitigation investigation is inadequate. See Dickerson v. Bagley, 453 F.3d 690, 695-97 (6th Cir.2006) (holding that trial counsel was ineffective, despite having presented eight witnesses at mitigation, for failing to discover and introduce evidence that the defendant had a low I.Q., had a borderline personality disorder, was taunted at school, and was referred to as "the moron" by his mother); Harries v. Bell, 417 F.3d 631, 638 (6th Cir.2005) (holding trial counsel deficient at mitigation for failing to fully investigate the defendant's family history and mental health, despite having conducted at least six interviews). This is particularly true when counsel's investigation failed to reveal any of the significant, potentially mitigating details of the defendant's personal and family history. See Haliym v. Mitchell, 492 F.3d 680, 713 (6th Cir.2007) (explai...