Wesson v. Jenkins
Filing
51
Memorandum of Opinion and Order For the reasons stated in the Order, this Court denies Wesson's Amended Petition for Writ of Habeas Corpus (Doc. 36 ) as to all grounds for relief with the exception of his fourth ground and the related claim of ineffective assistance of trial counsel under the third ground, which it reserves for judgment until such time that it conducts an evidentiary hearing on those claims as stated above. Wesson's Motion for Evidentiary Hearing (Doc. 47 ) is therefore granted as to those claims only and denied as to all other claims. The Court further certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could be taken in good faith as to Wesson's first ground for relief, and the Court issues a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b) as to that claim only. As to all remaining claims, the Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. Signed by Judge Dan Aaron Polster on 3/5/2020. (K,K)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
HERSIE R. WESSON,
Petitioner,
v.
CHARLOTTE JENKINS, Warden
Respondent.
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CASE NO. 5:14 CV 2688
JUDGE DAN AARON POLSTER
MEMORANDUM OF OPINION
AND ORDER
INTRODUCTION
Petitioner Hersie Wesson was convicted and sentenced to death in an Ohio state court for
the aggravated murder of 81-year-old Emil Varhola. Wesson has now filed a petition and
amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the
constitutionality of his convictions and sentence. (Docs. 16, 36.) Respondent Warden Charlotte
Jenkins has filed a return of writ to the amended petition. (Doc. 43.)1 Wesson has filed a
traverse. (Doc. 46.) For the reasons stated below, the Court reserves judgment on Wesson’s
claims under Atkins v. Virginia, 536 U.S. 304 (2002), until after the parties have presented
evidence at a hearing, and denies Wesson’s amended petition as to all remaining claims.
1
According to the parties’ filings, Tim Shoop, not Charlotte Jenkins, is the
current Warden of Chillicothe Correctional Institution, where Wesson is incarcerated.
For consistency with the docket, however, the Court continues to list Charlotte Jenkins as
the respondent.
FACTUAL HISTORY
The Ohio Supreme Court set forth the following facts underlying Wesson’s convictions:
On February 25, 2008, Wesson's girlfriend, Mildrian Ford, filed a police report
against him following a dispute. Because Wesson was serving a three-year term of
postrelease control following his release from prison in 2007, Ford also notified his
parole officer, Julie Clark, of the incident. Clark, together with another parole officer
and members of Akron's fugitive task force, began searching for Wesson.
That evening, Wesson went to the home of 81–year–old Emil Varhola and his
77–year–old wife, Mary, who lived near Ford and knew Wesson from the
neighborhood. Wesson sometimes talked to Emil, who occasionally gave him money
or hired him to do odd jobs. Wesson knocked on their door and asked if he could
come inside while he waited for Ford's bus to arrive, and they accommodated him.
Emil, who used a portable oxygen tank to breathe, offered Wesson coffee, and the
two sat together at the kitchen table. Mary returned to the living room.
Mary then heard a whistling sound coming from the kitchen. When she returned to
the kitchen, she saw Emil lying on the floor in a pool of blood with the whistling
sound coming from his windpipe and Wesson rifling through Emil's pockets. Mary
confronted him, and he admitted that he killed Emil, and then he attacked her. He
demanded “the gun,” explaining that he needed it to kill his girlfriend. Mary refused
to tell him where Emil kept his handgun, even as Wesson beat and stabbed her.
According to Mary, he stopped assaulting her only when he thought she was dead.
Wesson fled the home, taking a rifle and the cup from which he had drunk and
throwing them in a bush in the front yard. He also took Mary's jewelry and Emil's
wallet containing approximately $800.
When he left, Mary contacted her son, Paul, who called 9–1–1 to report the incident.
When officers arrived, they found Emil dead in the kitchen and Mary hardly able to
stand or speak, but she was able to show police where Emil kept his pistol, in a
hollowed-out book in the living room. She had multiple stab wounds on her chest
and upper abdomen, bruises, and lacerations on her hands and fingers. Her right
cheek had a large gash in it with the skin peeled back, exposing bone. Emergency
personnel transported Mary to the hospital, where she lost consciousness and
remained unconscious and on a respirator for more than a month before awaking.
Officers found blood pooled on the kitchen floor, splattered on the curtains, smeared
on the refrigerator, and splashed on the dining room wall and carpet. They noted
other signs of a struggle, including objects strewn about and a set of dentures on the
floor. The gun cabinet stood open, and one long gun appeared to be missing.
Investigators did not find any weapon near Emil's body.
2
Police followed a trail of bloody footprints leading to a bush in the front yard of the
home, where they discovered Emil's long gun and the cup. They subsequently
located Emil's wallet—which had no money in it—under the porch of a home several
blocks away.
Based on Mary's statements, the police began to look for Wesson. With Ford's
assistance, officers located him at the Akron home of Christopher Conley, his cousin,
in the early morning hours of February 26, 2008. On a dresser in the room where the
police found Wesson, they discovered a straight-edged steak knife with what
appeared to be dried blood on it. When they arrested Wesson, they observed
blood-soaked bandages on his hands and what appeared to be blood on his sneakers
and pants and on a jacket found in the room.
At the police station, Wesson waived his Miranda rights, and two detectives
interviewed him. He admitted stabbing Emil and Mary, but claimed that he acted in
self-defense. He related that he and Mary had an ongoing sexual relationship and that
Emil usually watched, but on this occasion he became upset watching them have
unprotected sex on the kitchen floor. According to Wesson, Emil threatened him
with a long gun and attacked him with a knife, but Wesson was able to disarm and
stab Emil. Then, he claimed, he stabbed Mary after she hit him on the head with her
cane. Based on Wesson's assertion that he had engaged in intercourse with Mary,
investigators had the hospital perform a rape-kit examination on her, but samples
tested negative for semen.
An autopsy revealed that Emil had been stabbed eight times—four times in the torso,
once in the neck, and three times in the back—and it revealed defensive wounds on
his hands. Dorothy Dean, a deputy medical examiner for the Summit County Medical
Examiner's Office, concluded that the stab wounds in Emil's neck and torso caused
his death, and she testified that Emil's injuries could have been caused by the knife
seized at the time of Wesson's arrest.
***
At trial, the state argued that Wesson came to the Varholas' home looking for a gun
to kill his girlfriend and then murdered Emil and attempted to murder Mary. In
contrast, the defense presented a theory of a friendly encounter that turned bad,
stating that the Varholas had invited Wesson into their home so he would not have
to wait for a bus in the cold, but that Emil began to behave erratically, and Wesson,
who knew that Emil owned guns, thought Emil had threatened him. Thus, the
defense asserted that Wesson stabbed Emil in self-defense and assaulted Mary only
when she attacked him with her cane.
***
3
In Wesson's case-in-chief, the defense called a single witness, Akron Police
Detective Joseph Urbank, who testified that he had interviewed a woman named
Linda Fields about her observations of Wesson on February 25, the date of the
murder. Fields died before trial, and by agreement of the parties, the defense played
an audio recording of Urbank's interview with her. On the recording, she claimed
that Wesson was at his cousin's residence, where she had been staying, from 5:00
p.m. until 8:00 p.m. on February 25. He left around 8:00 p.m. and did not return until
10:00 p.m. At that time, he had fresh cuts on his hands and she gave him bandages
for the cuts. Fields also told Urbank that she had left the knife on the bedroom
dresser earlier that afternoon.
State v. Wesson, 137 Ohio St. 3d 309, 310-12 (Ohio 2013).
PROCEDURAL HISTORY
A.
State-Court Proceedings
1.
Trial Court
The Summit County Grand Jury indicted Wesson on March 13, 2008, for three counts of
aggravated murder, including aggravated murder with prior calculation and design (Count One);
aggravated murder while committing aggravated robbery (Count Two); and aggravated murder
while under detention (Count Three). (Doc. 12-1 at 30-33.)2 Each count carried three capital
specifications: aggravated murder while under detention; aggravated murder as “part of a course
of conduct involving the purposeful killing of or attempt to kill two or more persons by the
offender”; and aggravated murder while committing aggravated robbery. (Id. at 33-34.) The
indictment also charged Wesson with three counts of attempted aggravated murder (Counts Four
through Six), two counts of aggravated robbery (Counts Seven and Eight), one count of having
weapons while under a disability (Count Nine), and one count of tampering with evidence
2
All references to page numbers of documents in the Court’s electronic court
filing system (“ECF”) are to the page numbers of the individual ECF documents, not to
the original documents’ page numbers or ECF “PageID” numbers.
4
(Count Ten). (Id. at 34-37.) The grand jury issued a supplemental indictment on May 5, 2008,
charging Wesson with two counts of attempted murder (Counts Eleven and Twelve) and one
count of aggravated robbery (Count Thirteen). (Doc. 12-3 at 45-46.) Wesson entered pleas of
not guilty to all charges. (Doc. 12-1 at 45; Doc. 12-4 at 5.)
The trial court appointed Lawrence Whitney and Walter Benson as Wesson’s trial
counsel. (Doc. 12-1 at 44.) At Wesson’s request, the court later appointed a third attorney,
Tyler Whitney, to represent Wesson. (Id. at 80.) Walter Benson later withdrew from the case
and the court appointed Donald Hicks to replace him. (Doc. 12-3 at 101.) The court also later
granted Wesson’s request for the appointment of two experts, psychologist Jeffrey Smalldon,
Ph.D., and mitigation specialist Thomas Hrdy. (Id. at 123.)
On April 2, 2008, Wesson moved to suppress or limit the introduction of statements he
made to police upon his arrest, on the grounds that the police failed to give him proper Miranda
warnings, his Miranda waiver was involuntary because he was highly intoxicated, and the police
had coerced the statements. (Doc. 12-1 at 72-78.) Wesson also moved to exclude the statements
he made to police as impermissible hearsay evidence. (Id. at 84-87.) After conducting a hearing
on the matter, the trial court denied Wesson’s motion to suppress, finding that he knowingly,
intelligently, and voluntarily waived his Miranda rights, and that his statement to police was
voluntarily made. (Doc. 12-4 at 66-79.) The court also denied Wesson’s motion in limine
regarding the statements. (Id. at 64-65.)
On November 21, 2008, Wesson filed a notice that he “repudiate[d]” the statements he
made to police the day of his arrest. (Doc. 12-5 at 20-21.) On January 7, 2009, the State filed a
motion in limine to exclude an audio recording that Wesson made retracting his statements to
5
police. (Doc. 12-6 at 22-24.) The trial court granted the State’s motion and excluded the
recording as hearsay. (Id. at 63.)
On January 6, 2009, Wesson waived his right to a trial by jury, and elected to be tried by
a three-judge panel, including the presiding judge and two other judges chosen by the chief
judge. (Id. at 11-13.) The next day, Wesson signed an amended waiver of trial by jury, which
stated that the two additional judges were “to be designated pursuant to law.” (Id. at 14-15.)
The court explained in an order issued that day that Ohio law provides that the two additional
judges could be designated by the presiding judge or chief justice of that court. (Id. at 47-48.)
The court further noted that Wesson, his counsel, and the State agreed to the amendment of the
waiver. (Id. at 48.) On January 12, 2009, the trial-court judge selected the other two judges for
the three-judge panel, which Wesson’s counsel approved. (Id. at 94.)
On January 8, 2009, the State dismissed three counts of attempted aggravated murder
(Counts Four through Six) and one count of aggravated robbery (Count Eight). (Id.)
Wesson’s trial commenced on January 15, 2009. (Id.) At the close of the State’s case,
the trial court granted Wesson’s motion to dismiss one count of aggravated murder with prior
calculation and design (Count One) and its specifications. (Id.) On January 23, 2009, the panel
found Wesson guilty of all remaining charges. (Id.)
On March 3, 2009, upon Wesson’s motion, the panel ordered the merger of Counts Two
and Three, both of which involved the aggravated murder of the same victim, Emil Varhola. (Id.
at 109-15.) The State elected to have Wesson sentenced for Count Two, aggravated murder
while committing aggravated robbery, and the three specifications attached to that count. (Id. at
123.)
6
The sentencing phase of the Wesson’s trial was held on March 6, 2009, before the same
three-judge panel as the guilt phase. (Id.) On March 13, 2009, the panel imposed a sentence of
death for the remaining count of aggravated murder of Emil Varhola. (Id.) It further imposed
consecutive sentences totaling twenty-six years’ imprisonment for the remaining, noncapital
offenses.3 (Id. at 123-24; Doc. 12-7 at 1-16.)
2.
Direct Appeal
Wesson filed a timely appeal to the Supreme Court of Ohio on April 22, 2009. (Doc. 127 at 48-49.) He was represented by new counsel, David Doughten and George Pappas. (See id.)
In his merit brief, Wesson raised the following propositions of law, stated as:
1.
An indictment which fails to set forth each and every element of the charged
offense, including the mens rea, is in violation of the Due Process Clause of
both the State and Federal Constitution[s].
2.
Where a defendant is found guilty for having committed an offense while
under postrelease control, the conviction is invalid where the sentencing
entry placing the defendant on postrelease control failed to follow the
mandates of [Ohio Rev. Code] § 2967.28(B).
3
Specifically, the panel imposed a mandatory prison term of nine years for
aggravated robbery, as contained in Count Seven, with a period of five years’ mandatory
post-release control; four years’ imprisonment for having weapons while under disability,
as contained in Count Nine, with an undetermined period of post-release control; four
years’ imprisonment for tampering with evidence, as contained in Count Ten, with an
undetermined period of post-release control; and a mandatory prison term of nine years’
imprisonment for attempted murder, as contained in Count Eleven, with a period of five
years mandatory post-release control. (Doc. 12-6 at 124-25.) The panel merged the
attempted murder charge in Count Twelve with the attempted murder charge in Count 11,
and the aggravated robbery charge in Count Thirteen with the aggravated robbery charge
in Count Seven. (Id.) It further ordered that the sentences imposed in Counts Seven,
Nine, Ten, and Eleven were to be served concurrently. (Id. at 125.)
7
3.
Where a defendants [sic] right to present a defense is arbitrarily infringed by
a state rule of evidence, the former prevails. Therefore, a trial court must
preclude essential defense evidence based solely on state rules of evidence.
4.
When a capital defendant waives his right to a jury trial, [Ohio Rev. Code]
§ 2945.06 requires that the presiding judge of the court rather than the case
itself select the other members of a three[-]judge panel to hear and decide a
capital murder trial.
5.
Where the presumption against the waiver of Miranda protections is not
overcome by the totality of the circumstances of the waiver, any resultant
statement by a defendant must be suppressed.
6.
Tampering with Evidence, [Ohio Rev. Code] § 2921.12[,] and Aggravated
Robbery, [Ohio Rev. Code] § 2911.01[,] are allied offenses pursuant to [Ohio
Rev. Code] § 2945.21 where the underlying theft offense and the making the
element unavailable constitute the same animus.
7.
Victim-impact statements made by or on behalf of family members of the
decedent at the time of sentencing are limited in nature and may not address
the families [sic] characterization of and opinions about the crime, the
defendant and the appropriate sentence.
8.
The failure to raise and preserve meritorious issues during the culpability
phase results in the denial of a defendant’s right to effective assistance of
counsel.
9.
The death penalty may not be sustained where the cumulative errors that
occurred in the trial deprived the defendant of a fair consideration of the
appropriateness of the death penalty.
10.
[Ohio Rev. Code] § 2929.04(A)(7) is unconstitutional where the same acts
which constitute the charge of aggravated murder are also used to narrow the
class of death[-]eligible defendants.
11.
The death penalty cannot be upheld where the reviewing court fails to follow
the statutory provisions regarding the proportionality review of the
defendant’s sentence.
12.
The death penalty is unconstitutional as presently administered in Ohio.
(Doc. 12-8 at 26-32.)
8
On October 23, 2013, the Ohio Supreme Court reversed the convictions for Count Three,
the specifications related to that count, and Specification One related to Count Two, because the
original sentencing entry that imposed post-release control on Wesson placing him under
detention was void. Wesson, 137 Ohio St. 3d at 309-10. The court affirmed the remaining
convictions, including the aggravated murder conviction contained in Count Two and its death
penalty specification, the imposition of the death sentence, and the aggregate sentence of twentysix years’ imprisonment for the noncapital offenses. Id. at 310. Wesson moved for
reconsideration of the court’s judgment, which the court denied on December 24, 2013. (Doc.
12-8 at 285-86, 291); State v. Wesson, 137 Ohio St. 3d 1444 (Ohio 2013).
On March 24, 2014, Wesson filed a petition for a writ of certiorari in the United States
Supreme Court, presenting the following question for review, stated as:
In a weighing state, and pursuant to Brown v. Sanders, 546 U.S. 212 (2006), when
a state supreme court invalidates a sentencing eligibility factor, a subsequent death
sentence will be rendered unconstitutional unless one of the other sentencing factors
permits the sentence to give aggravating weight to the same facts and circumstances
supporting the invalid aggravator.
(Id. at 323; Doc. 16 at 17.) The Court declined jurisdiction on May 19, 2014. (Doc. 12-8 at
331); Wesson v. Ohio, 134 S. Ct. 2311 (2014).
3.
First Post-Conviction Proceedings
Wesson also appealed his conviction and sentence through state post-conviction
proceedings, pursuant to Ohio Revised Code § 2953.21. He was represented by new counsel,
Jennifer Prillo and Benjamin Zober of the Ohio Public Defender’s Office. (See Doc. 12-9 at
194.) On February 17, 2010, he filed a post-conviction petition in the trial court, which raised
eleven grounds for relief, presented as follows:
9
1.
Petitioner’s sentences are void or voidable because he was denied the
effective assistance of counsel at the penalty phase of his capital trial as
guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the
[U.S. Const. art.] I, §§ 1, 2, 5, 9, 10, 16 and [Ohio Const. art. 20]. As a
result, Petitioner was prejudiced.
2.
Petitioner’s sentences are void or voidable because he was denied the
effective assistance of counsel at the penalty phase of his capital trial as
guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution and Article I, Sections 1, 2, 5, 9, 10, 16, and 20 of
the Ohio Constitution. As a result, Petitioner was prejudiced.
3.
Petitioner’s sentences are void or voidable because he was denied the
effective assistance of counsel at the penalty phase of his capital trial as
guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution and Article I, Sections 1, 2, 5, 9, 10, 16, and 20 of
the Ohio Constitution. As a result, Petitioner was prejudiced.
4.
Petitioner’s death sentence is void or voidable because he received
ineffective assistance of counsel during the mitigation phase of his capital
trial. The psychologist who testified for the defense was inadequate and did
not explain for the jury how this crime could have occurred. Petitioner’s right
to due process, a fair trial and the effective assistance of counsel as
guaranteed by the Sixth, Eighth, Ninth, and Fourteenth Amendments to the
U.S. Constitution, and Sections 2, 5, 9, 10, 16, and 20 of Article I of the Ohio
Constitution were violated.
5.
Petitioner’s sentence is void or voidable because his trial counsel failed to
present mitigating evidence regarding his brother Wayne Wesson’s criminal
record. This inaction violated Wesson’s rights as guaranteed by the Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution and
Article I, Sections 1, 2, 5, 9, 10, 16, and 20 of the Ohio Constitution.
6.
Petitioner’s sentence is void or voidable because his trial counsel failed to
present mitigating evidence from his cousin, Herb Wesson. This inaction
violated Petitioner’s rights as guaranteed by the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and Article I, Sections 1, 2,
5, 9, 10, 16, and 20 of the Ohio Constitution.
7.
Petitioner’s sentence is void because his trial counsel failed to present
mitigating evidence. This inaction violated Wesson’s rights as guaranteed
by the Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution and Article I, Sections 1, 2, 5, 9, 10, 16, and 20 of the Ohio
Constitution.
10
8.
Petitioner’s conviction and death sentence are void or voidable because he
received, and was prejudiced by, ineffective assistance of his trial counsel.
Trial counsel were ineffective because they failed to sufficiently impeach the
credibility of one of the State’s key witnesses, Mary Varhola. Such
impeachment would have cast reasonable doubt on the State’s case. Trial
counsel’s failure resulted in Petitioner’s rights as guaranteed by the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution
being violated. Strickland v. Washington, 466 U.S. 668 (1984); State v.
Johnson, 24 Ohio St. 3d 87 (1986).
9.
Petitioner’s sentence is void or voidable because the three-judge panel was
improperly assembled. This inaction violated Wesson’s rights as guaranteed
by the Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution and Article I, Sections 1, 2, 5, 9, 10, 16, and 20 of the Ohio
Constitution.
10.
Petitioner’s sentence is void or voidable because his counsel was ineffective
for failing to object to the improperly assembled three-judge panel. This
violated Wesson’s rights as guaranteed by the Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and Article I, Sections 1, 2,
5, 9, 10, 16, and 20 of the Ohio Constitution.
11.
Petitioner’s judgment and sentence are void or voidable because, assuming
arguendo that none of the grounds for relief in his postconviction petition
individually warrant the relief sought from this court, the cumulative effects
of the errors and omissions presented in the petition’s foregoing paragraphs
have been prejudicial and have denied Petitioner his rights secured by the
Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution, and Article I, Sections 1, 2, 5, 9, 10, 16, and 20 of the Ohio
Constitution.
(Doc. 12-9 at 155-94.) On February 17, 2010, Wesson filed an amendment to his petition adding
the following twelfth ground for relief:
12.
Petitioner’s convictions and sentences are void or voidable because he was
denied the effective assistance of counsel at the penalty phase of his capital
trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the
United States Constitution.
(Doc. 12-14 at 192-93.)
11
The trial court denied Wesson’s post-conviction petition on March 2, 2011. (Id. at 28499.)
Wesson, still represented by Attorney Prillo of the Ohio Public Defender’s Office and by
additional counsel Kelle Hinderer of that office, appealed the trial court’s denial of his postconviction petition on April 1, 2011. (Id. at 301-02.) In his appellate brief, he presented the
following three assignments of error:
1.
The trial court erred by dismissing Appellant’s post-conviction petition,
where he presented sufficient operative facts and supporting exhibits to merit
at minimum an evidentiary hearing and discovery.
2.
The trial court erred in dismissing Appellant’s post-conviction petition
without holding an evidentiary hearing and affording him the opportunity to
conduct discovery.
3.
Considered together, the cumulative errors set forth in Appellant’s
substantive grounds for relief merit reversal or remand for a proper postconviction process.
(Doc. 12-15 at 126 (capitalization altered).) The Summit County Court of Appeals affirmed the
trial court’s decision on September 28, 2012. State v. Wesson, No. 25874, 2012 WL 4480109
(Ohio Ct. App. Sept. 28, 2012).
Wesson then appealed that judgment to the Ohio Supreme Court on November 9, 2012.
(Doc. 12-16 at 3-5.) In his memorandum in support of jurisdiction, he set forth three
propositions of law, stated as follows:
1.
When a petitioner presents sufficient operative facts in his post-conviction
petition, he is entitled to relief or, at a minimum, an evidentiary hearing on
his grounds for relief.
2.
A trial court must provide a post-conviction petitioner with the opportunity
to conduct discovery pursuant to the rules of civil procedure. U.S. CONST.
amend. XIV.
12
3.
In a proper post-conviction process, errors must be considered cumulatively.
U.S. CONST. amend. XIV.
(Id. at 6-7.) The court declined jurisdiction and dismissed the appeal on September 24, 2014.
State v. Wesson, 140 Ohio St. 3d 1438 (Ohio 2014).
4.
Application to Reopen Direct Appeal
Meanwhile, on March 21, 2014, Wesson filed an application to reopen his direct appeal
in the Ohio Supreme Court, pursuant to Ohio Supreme Court Practice Rule 11.06. (Doc. 12-8 at
305-16.) He was represented by new counsel, Angela Wilson Miller. (See id. at 315.) In his
application, he asserted that his appellate counsel failed to raise the following claims:
1.
A defendant is denied the right to the effective assistance of counsel when
trial counsel prejudicially fails his client during his capital trial. U.S. CONST.
[a]mends. V, VI, XIV; OHIO CONST. [a]rt. I, §§ 2, 9, 10 and 16.
2.
Hersie Wesson is mentally ill. His death sentence is in violation of his rights
under the Eighth and Fourteenth Amendments of the United States
Constitution.
3.
A trial court violates a capital defendant’s constitutional rights to a fair trial
and due process when it fails to record sidebars and comply with its own
rulings to ensure a complete record on appeal. U.S. CONST. [a]mends. V, VI,
VIII and XIV; OHIO CONST. [a]rt. I, §§ 1, 2, 5, 9, 10, 16 and 20.
(Id. at 307, 313, 315.) The court denied the application on October 8, 2014. State v. Wesson,
140 Ohio St. 3d 1449 (Ohio 2014).
B.
Initial Federal Habeas Corpus Proceedings
On December 9, 2014, Wesson initiated habeas corpus proceedings in this Court by filing
a notice of intent to file a petition for writ of habeas corpus. (Doc. 1.) That same day, he also
filed a motion for appointment of counsel and motion to proceed in forma pauperis. (Docs. 2,
13
3.) The Court granted the motion for appointment of counsel, appointing Joseph Wilhelm and
Vicki Werneke of the Office of the Federal Public Defender and Rachel Troutman and Shawn
Welch of the Office of the Ohio Public Defender, on January 23, 2015, and the motion to
proceed in forma pauperis, on January 26, 2015.
After requesting and receiving an extension of time, Wesson filed a petition for writ of
habeas corpus on September 24, 2015, asserting six claims for relief. (Doc. 16. )
On October 22, 2015, Wesson moved to stay his case in this Court and hold it in
abeyance until he has exhausted his claim in state court that he is intellectually disabled and thus
ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002). (Doc. 20.)
Respondent opposed the motion on November 5, 2015. (Doc. 22.) On November 20, 2015, this
Court granted Wesson’s motion to stay the case and hold it in abeyance. (Doc. 25.)
C.
Second State-Court Post-Conviction Proceedings
On December 11, 2015, Wesson, now represented by Shawn Welch, Rachel Troutman,
and Jessica Carrico of the Ohio Public Defender’s Office, filed a second-in-time post-conviction
petition in the state trial court. (Doc. 41-1 at 13-85.) He raised sixteen grounds for relief, stated
as follows:
1.
Hersie Wesson is intellectually disabled. Therefore his death sentence is
unconstitutional.
2.
Trial counsel rendered prejudicially deficient performance by failing to raise
and litigate Wesson’s intellectual disability.
3.
Wesson was prejudiced by trial counsel’s failure to investigate and present
evidence of Wesson’s Fetal Alcohol Spectrum Disorders (FASD) effects.
4.
Hersie Wesson was prejudiced by his attorneys’ false advice regarding
whether he was able to withdraw his jury waiver.
14
5.
Wesson was prejudiced by trial counsel’s failure to properly advise him
regarding the State’s plea offer.
6.
Wesson was prejudiced by trial counsel’s failure to investigate and present
evidence regarding Emil Varhola’s known aggressive behavior.
7.
Trial counsel rendered prejudicially deficient performance in the culpability
phase of Hersie Wesson’s capital trial.
8.
Wesson was prejudiced by trial counsel’s failure to investigate and present
evidence regarding Mimi Ford and her relationship with Wesson.
9.
Wesson was prejudiced by trial counsel’s failure to investigate and present
documented evidence from Wesson’s treatment at the Community Health
Center.
10.
Wesson’s trial counsel failed to present evidence of his history and family
background during the penalty phase of his capital trial.
11.
Wesson’s trial counsel failed to present evidence of his history and family
background during the penalty phase of his capital trial.
12.
Wesson’s trial counsel failed to present evidence of his history and family
background during the penalty phase of his capital trial.
13.
The cumulative effect of Wesson’s counsel’s ineffectiveness violated
Wesson’s rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and Article I, Sections 2, 5,
9, 10, 16, and 20 of the Ohio Constitution . . . .
14.
Wesson was denied his constitutional right to effective assistance of counsel
when his trial counsel failed to investigate and present available evidence of
Wesson’s character, history, and family background during the penalty phase
of his capital trial in violation of his rights as guaranteed by the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution and
Article I, Sections 2, 5, 9, 10, 16, and 20 of the Ohio Constitution.
15.
Wesson’s statutory rights under O.R.C. § 2953.21 were squandered through
no fault of his own. His former attorneys violated his right to present
evidence of constitutional violations in a timely, competent, and effective
fashion, and they failed to file significant post-conviction claims within the
time frame denoted in O.R.C. § 2953.21(A)(2).
15
16.
The cumulative effect of Hersie Wesson’s counsel’s ineffectiveness violated
Wesson’s rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and Article I, Sections 2, 5,
9, 10, 16, and 20 of the Ohio Constitution[.]
(See id. at 31, 41, 44, 50, 53, 56, 58, 65, 68, 70, 72, 74, 77, 78, 79, 82.)
The state court denied the petition on the grounds that it was successive and untimely
under Ohio’s statutory post-conviction relief scheme. (Doc. 41-3 at 106-17.)
Wesson appealed that judgment to the state court of appeals. (Id. at 118-19.) In his
appellate brief, he raised the following assignments of error, stated as:
1.
The trial court erred when it adjudicated Wesson’s Petition for Postconviction Relief under the more stringent standards of Ohio Revised Code
§ 2953.23, as opposed to § 2953.21.
2.
The trial court erred when it failed to consider Wesson’s claims of ineffective
assistance.
3.
The trial court erred when it placed the burden of thoroughly investigating
an Atkins claim on a petitioner with an intellectual disability claim.
4.
The trial court erred in dismissing Wesson’s Post-conviction Petition when
he presented sufficient operative facts to merit relief or, at a minimum, an
evidentiary hearing.
(Doc. 41-4 at 98-99.) The state appellate court affirmed the trial court’s judgment. State v.
Wesson, No. 28412, 2018 WL 1189383 (Ohio Ct. App. March 7, 2018).
Wesson appealed to the Ohio Supreme Court. (Doc. 41-5 at 92-93.) In his memorandum
in support of jurisdiction, he presented four propositions of law, stated as follows:
1.
A petitioner’s post-conviction claims filed outside the 180-day window
should still be adjudicated under [Ohio Rev. Code] § 2953.21 rather than
[Ohio Rev. Code] § 2953.23 when it was petitioner’s counsel’s
ineffectiveness that prevented the timely filing.
2.
The trial court abused its discretion in not considering claims of ineffective
assistance of counsel when that ineffective assistance of counsel was why the
16
petitioner was unavoidably prevented from discovering the evidence on
which his claims were based.
3.
The responsibility for thoroughly investigating an Atkins claim should not
be placed on the petitioner himself when he is represented by and relying on
counsel.
4.
When a petitioner has presented sufficient evidence to support claims of
constitutional error during capital proceedings, the trial court must grant
relief, or at a minimum, an evidentiary hearing.
(Doc. 41-5 at 97.) The Ohio Supreme Court declined further post-conviction review on July 5,
2018. State v. Wesson, 153 Ohio St. 3d 1433 (2018).
Wesson appealed that decision to the United States Supreme Court, which denied his
petition for writ of certiorari on December 10, 2018. Wesson v. Ohio, 139 S. Ct. 644 (2018).
D.
Reinstated Federal Habeas Corpus Proceedings
Wesson then returned to this Court and filed an amended habeas petition on January 9,
2019. (Doc. 35.) In it, he reasserts his original six grounds for relief, including the nowexhausted claims of ineffective assistance of trial counsel (id. at 60-115) and Atkins claim (id. at
115-23). Respondent filed a return of writ on May 24, 2019 (Doc. 43), and Wesson filed a
traverse on September 23, 2019 (Doc. 46).
Wesson also has moved for an evidentiary hearing on the issue of the procedural default
of several of his claims of ineffective assistance of trial counsel. (Doc. 47.) He alleges for those
claims that counsel performed deficiently by failing to: (1) assert that he is intellectually
disabled and therefore ineligible for execution under Atkins; (2) present evidence of his cognitive
and emotional limitations and history and background as mitigating factors at trial, most notably
concerning fetal alcohol spectrum disorder; (3) properly advise him about waiving a jury trial
and accepting a plea offer to avoid the death penalty; and (4) effectively cross-examine the
17
State’s only eyewitness to the murder, Mary Varhola. (See id. at 13-14.) Wesson seeks to
present evidence demonstrating that the procedural default of these claims should be excused,
either for cause – namely, that his initial post-conviction counsel’s failure to raise the claims – or
because there will be a “fundamental miscarriage of justice” if not considered. (Id. at 3-4.)
Respondent has filed a brief in opposition (Doc. 48), to which Wesson has replied (Doc. 49).
The Court will address that motion in this opinion.
PETITIONER’S GROUNDS FOR RELIEF
Wesson asserts six grounds for relief in his amended petition, stated as:
1.
Hersie Wesson’s right against self-incrimination was violated because he did
not knowingly, intelligently or voluntarily waive his right to silence. The
illegally obtained statement was used against the Petitioner at his trial, and
the statement was important to the State’s case against the Petitioner. U.S.
CONST. amend[s. V, XIV].
2.
Trial counsel rendered ineffective assistance in the culpability phase of
Wesson’s capital trial, violating his rights under the Sixth and Fourteenth
Amendments. U.S. CONST. amend[s. VI, XIV].
3.
Trial counsel rendered ineffective assistance in the mitigation phase when
they failed to investigate and present relevant mitigation evidence of Hersie
Wesson’s history, background, and character, including his ability to adapt
to prison life and his fetal alcohol spectrum disorder, and when counsel
allowed Hersie Wesson to make a rambling unsworn statement and
“respond” to witnesses’ victim impact statements. U.S. CONST. [a]mends.
[VI, XIV].
4.
Hersie Wesson’s intellectual disability categorically excludes his execution
under the Eighth Amendment. U.S. CONST. [a]mends. [V, VI, VIII, XIV].
5.
Hersie Wesson’s right to due process was violated by the ineffective
assistance of counsel in Wesson’s direct appeal to the Supreme Court of
Ohio. U.S. CONST. amend[s. XIV].
6.
The death penalty on its face and as applied to Hersie Wesson is arbitrary,
cruel and unusual, and it violates due process. U.S. CONST. amend[s. VIII,
XIV].
18
(Doc. 36 at 43, 60, 89, 115, 124, 128.)
STANDARD OF REVIEW
A.
AEDPA Review
Wesson’s petition for writ of habeas corpus is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336
(1997) (AEDPA governs federal habeas petitions filed after Act’s effective date). AEDPA,
which amended 28 U.S.C. § 2254, was enacted “to reduce delays in the execution of state and
federal criminal sentences, particularly in capital cases, and ‘to further the principles of comity,
finality, and federalism.’” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting (Michael)
Williams v. Taylor, 529 U.S. 420, 436 (2000)). The Act “recognizes a foundational principle of
our federal system: State courts are adequate forums for the vindication of federal rights.” Burt
v. Titlow, 571 U.S. 12, 18 (2013). It therefore “erects a formidable barrier to federal habeas
relief for prisoners whose claims have been adjudicated in state court.” Id. at 19.
One of AEDPA’s most significant limitations on the federal courts’ authority to issue
writs of habeas corpus is found in § 2254(d). That provision forbids a federal court from
granting habeas relief with respect to a “claim that was adjudicated on the merits in State court
proceedings” unless the state-court decision either:
(1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
19
Habeas courts review the “last explained state-court judgment” on the federal claim at
issue. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (emphasis original). A state court has
adjudicated a claim “on the merits,” and AEDPA deference applies, regardless of whether the
state court provided little or no reasoning at all for its decision. “When a federal claim has been
presented to a state court and the state court has denied relief, it may be presumed that the state
court adjudicated the claim on the merits in the absence of any indication or state-law procedural
principles to the contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011).
“Clearly established Federal law” for purposes of § 2254(d)(1) “is the governing legal
principle or principles set forth by the Supreme Court at the time the state court renders its
decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). It includes “only the holdings, as
opposed to the dicta, of [Supreme Court] decisions.” White v. Woodall, 572 U.S. 415, 419
(2014) (internal quotation marks and citations omitted). The state-court decision need not refer
to relevant Supreme Court cases or even demonstrate an awareness of them; it is sufficient that
the result and reasoning are consistent with Supreme Court precedent. Early v. Packer, 537 U.S.
3, 8 (2002) (per curiam). And a state court does not act contrary to clearly established law when
the precedent of the Supreme Court is ambiguous or nonexistent. See, e.g., Mitchell v. Esparza,
540 U.S. 12, 17 (2003) (per curiam).
A state-court decision is contrary to “clearly established Federal law” under § 2254(d)(1)
only “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on
a question of law or if the state court decides a case differently than [the Supreme] Court has on
a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
20
And “review under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
A state-court decision is an “unreasonable determination of the facts” under § 2254(d)(2)
only if the court made a “clear factual error.” Wiggins v. Smith, 539 U.S. 510, 528-29 (2003).
The petitioner bears the burden of rebutting the state court’s factual findings “by clear and
convincing evidence.” Burt, 571 U.S. at 18; Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011).
This requirement mirrors the “presumption of correctness” AEDPA affords state-court factual
determinations, which only can be overcome by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).4 The Supreme Court has cautioned, “‘a state-court factual determination is not
unreasonable merely because the federal habeas court would have reached a different conclusion
in the first instance.’” Burt, 571 U.S. at 18 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
Indeed, the Supreme Court repeatedly has emphasized that § 2254(d), as amended by
AEDPA, is an intentionally demanding standard, affording great deference to state-court
adjudications of federal claims. The Court has admonished that a reviewing court may not
“treat[] the reasonableness question as a test of its confidence in the result it would reach under
de novo review,” and that “even a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Harrington, 562 U.S. at 102; see also Schriro v. Landrigan, 550
U.S. 465, 473 (2007) (“The question under AEDPA is not whether a federal court believes the
state court’s determination was incorrect but whether that determination was unreasonable – a
4
Section 2254(e)(1) provides: “In a proceeding instituted by an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be presumed to be correct.
The applicant shall have the burden of rebutting the presumption of correctness by clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1).
21
substantially higher threshold.”). Rather, § 2254(d) “reflects the view that habeas corpus is a
guard against extreme malfunctions in the state criminal justice systems” and does not function
as a “substitute for ordinary error correction through appeal.” Harrington, 562 U.S. at 102-03
(internal quotation marks omitted). A petitioner, therefore, “must show that the state court’s
ruling . . . was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
This is a very high standard, which the Court readily acknowledges: “If this standard is difficult
to meet, that is because it is meant to be.” Id. at 102.
But AEDPA “stops short of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings.” Id. “[E]ven in the context of federal habeas,
deference does not imply abandonment or abdication of judicial review. Deference does not by
definition preclude relief.” Miller-El, 537 U.S. at 340. Rather, “under AEDPA standards, a
federal court can disagree with a state court’s factual determination and ‘conclude the decision
was unreasonable or that the factual premise was incorrect by clear and convincing evidence.’”
Baird v. Davis, 388 F.3d 1110, 1123 (7th Cir. 2004) (quoting Miller-El, 537 U.S. at 340)
(Posner, J.)). Federal habeas courts may, for example, review de novo an exhausted federal
claim where a state court misapplied a procedural bar and did not review the claim on the merits.
See, e.g., Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir. 2005). They likewise may review de novo
claims adjudicated on the merits in state court if the petitioner meets the criteria for one of §
2254(d)’s exceptions. See, e.g., Wiggins, 539 U.S. at 534 (performing de novo review under
Strickland’s second prong because the state court unreasonably applied the law in resolving
Strickland’s first prong).
22
B.
Exhaustion and Procedural Default
Under AEDPA, state prisoners must exhaust all possible state remedies, or have no
remaining state remedies, before a federal court will review a petition for a writ of habeas
corpus. 28 U.S.C. § 2254(b) and (c); see also Rose v. Lundy, 455 U.S. 509 (1982). This entails
giving the state courts “one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999). In other words, “the highest court in the state in which the petitioner was
convicted [must have] been given a full and fair opportunity to rule on the petitioner’s claims.”
Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). The exhaustion requirement,
however, “refers only to remedies still available at the time of the federal petition.” Engle v.
Isaac, 456 U.S. 107, 125 n.28 (1982). It “does not require pursuit of a state remedy where such a
pursuit is clearly futile.” Wiley v. Sowders, 647 F.2d 642, 647 (6th Cir. 1981).
Procedural default is a related but “distinct” concept from exhaustion. Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006). It occurs when a habeas petitioner fails to obtain
consideration of a federal constitutional claim by state courts because he failed to either: (1)
comply with a state procedural rule that prevented the state courts from reaching the merits of
the petitioner’s claim; or (2) fairly raise that claim before the state courts while state remedies
were still available. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 80, 84-87 (1977); Engle, 456
U.S. at 125 n.28; Williams, 460 F.3d at 806.
Where a state court declines to address a prisoner’s federal claim because the prisoner
has failed to meet a state procedural requirement, federal habeas review is barred as long as the
state judgment rested on “independent and adequate” state procedural grounds. Coleman v.
23
Thompson, 501 U.S. 722, 729 (1991). To be independent, a state procedural rule and the state
courts’ application of it must not rely in any part on federal law. Id. at 732-33. To be adequate,
a state procedural rule must be “‘firmly established’ and ‘regularly followed’” by the state courts
at the time it was applied. Beard v. Kindler, 558 U.S. 53, 60-61 (2009).5
A petitioner also may procedurally default a claim by failing to raise the claim in state
court and pursue it through the state’s “‘ordinary appellate review procedures,’” if, at the time of
the federal habeas petition, state law no longer allows the petitioner to raise the claim. Williams,
460 F.3d at 806 (quoting O’Sullivan, 526 U.S. at 848); see also Baston v. Bagley, 282 F. Supp.
2d 655, 661 (N.D. Ohio 2003) (“Issues not presented at each and every level [of the state courts]
cannot be considered in a federal habeas corpus petition.”). Under these circumstances, while
the exhaustion requirement is technically satisfied because there are no longer any state-court
5
In Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), the Sixth Circuit established
the now familiar test to be followed when the state argues that a habeas claim is defaulted
because of a prisoner’s failure to observe a state procedural rule. It is:
First, the federal court must determine whether there is a state procedural rule
that is applicable to the petitioner’s claim and whether the petitioner failed
to comply with that rule. Second, the federal court must determine whether
the state courts actually enforced the state procedural sanction – that is,
whether the state courts actually based their decisions on the procedural rule.
Third, the federal court must decide whether the state procedural rule is an
adequate and independent state ground on which the state can rely to
foreclose federal review of a federal constitutional claim. Fourth, if the
federal court answers the first three questions in the affirmative, it would not
review the petitioner's procedurally defaulted claim unless the petitioner can
show cause for not following the procedural rule and that failure to review
the claim would result in prejudice or a miscarriage of justice.
Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001) (citing Maupin, 785 F.2d at 138)
(further citations omitted).
24
remedies available to the petitioner, the petitioner’s failure to have the federal claims fully
considered in the state courts constitutes a procedural default of those claims, barring federal
habeas review. Williams, 460 F.3d at 806 (“Where state court remedies are no longer available
to a petitioner because he or she failed to use them within the required time period, procedural
default and not exhaustion bars federal court review.”); see also Gray v. Netherland, 518 U.S.
152, 161-62 (1996) (“Because the exhaustion requirement ‘refers only to remedies still available
at the time of the federal petition,’ . . ., it is satisfied ‘if it is clear that [the habeas petitioner’s]
claims are now procedurally barred under [state] law’ . . . .” (internal citations omitted)).
Furthermore, to “fairly present” a claim to a state court, a petitioner must assert both its
legal and factual basis. Williams, 460 F.3d at 806 (citing McMeans v. Brigano, 228 F.3d 674,
681 (6th Cir. 2000)). Most importantly, a “‘petitioner must present his claim to the state courts
as a federal constitutional issue – not merely as an issue arising under state law.’” Id. (quoting
Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984)).
In determining whether a claim is procedurally defaulted and barred from consideration
on federal habeas review, the federal court again looks to the last state court rendering a
reasoned opinion on that claim. Ylst, 501 U.S. at 805. If the state court “clearly and expressly
states that its judgment rests on a state procedural bar,” then the claim is procedurally defaulted.6
Harris v. Reed, 489 U.S. 255, 263 (1989). Conversely, if the last state court presented with the
6
Where a later state-court decision rests upon a prohibition against further state
review, the decision “neither rests upon procedural default nor lifts a pre-existing
procedural default, [and] its effect upon the availability of federal habeas is nil . . . .”
Ylst, 501 U.S. at 804 n.3. In that case, habeas courts “look through” that later decision to
the prior reasoned state-court judgment. Id. at 805 (“state rules against [a] superfluous
recourse [of state habeas proceedings] have no bearing upon [a petitioner’s] ability to
raise the [federal] claim in federal court”).
25
claim reaches its merits, then the procedural bar is removed and the federal habeas court may
consider the merits of the claim in its review. Ylst, 501 U.S. at 801.
A petitioner may overcome procedural default by demonstrating cause for the default and
actual prejudice that resulted from the alleged violation of federal law, or that there will be a
“fundamental miscarriage of justice” if the claim is not considered. Coleman, 501 U.S. at 750.
“‘[C]ause’ under the cause and prejudice test must be something external to the petitioner,
something that cannot be fairly attributed to him.” Id. To establish prejudice, a petitioner must
demonstrate that the constitutional error “worked to his actual and substantial disadvantage.”
Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S.
152, 170 (1982)). “A fundamental miscarriage of justice results from the conviction of one who
is ‘actually innocent.’” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (citing Murray
v. Carrier, 477 U.S. 478, 496 (1986)).
A fundamental miscarriage of justice in capital cases also means actually innocent of the
death penalty. See Sawyer v. Whitley, 505 U.S. 333, 347 (1992). In this sense, “[t]o show
‘actual innocence’ one must show by clear and convincing evidence that, but for a constitutional
error, no reasonable jury would have found the petitioner eligible for the death penalty under the
applicable state law.” Id. at 336. This “actual innocence” standard “must focus on the elements
that render a defendant eligible for the death penalty.” Hutton v. Mitchell, 839 F.3d 486, 498
(6th Cir. 2016) (citing Sawyer, 505 U.S. at 347).
ANALYSIS
I.
First Ground for Relief: Waiver of Miranda Rights
26
In his first ground for relief, Wesson claims the trial court’s admission into evidence of a
statement he made to police shortly after his arrest violated his constitutional right against selfincrimination under Miranda v. Arizona, 384 U.S. 436 (1966). He argues that: (1) his waiver of
his Miranda rights was not knowing and intelligent due to his intoxication at the time, low
intellectual abilities, and the coercive nature of the police interrogation; and (2) the detectives
who interviewed him failed to honor his subsequent withdrawal of his Miranda waiver and
unequivocal assertion of his right to remain silent when he said to them, “‘I ain’t got nothin’ to
say to y’all.’” (Doc. 46 at 21-36 (quoting Doc. 36-1 (Police Interview Tr.) at 14).)
A.
Procedural Posture
Wesson raised his claim challenging the validity of his waiver of Miranda rights on
direct appeal to the Ohio Supreme Court, which adjudicated it on the merits. See Wesson, 137
Ohio St. 3d at 316-18. This sub-claim, therefore, is preserved for federal habeas review.
Respondent counters, however, that Wesson did not raise his claim in state court that he
attempted to withdraw his Miranda waiver yet the interrogation continued, and that claim
therefore is procedurally defaulted. (Doc. 43 at 39-40.) Wesson does not respond to this
argument.
As explained above, to “fairly present” a claim to a state court, a petitioner must assert
both its legal and factual basis. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). Wesson never asserted in state court
27
either the factual or legal basis of his allegation here that he attempted to withdraw his Miranda
waiver and invoke his right to remain silent but the interrogation continued. Because that claim
arises out of the record of proceedings in the trial court, it could have been raised on direct
appeal. Wesson failed to do so, however, and Ohio’s res judicata doctrine now prohibits him
from raising the issues in any post-conviction proceeding. See Wong v. Money, 142 F.3d 313,
322 (6th Cir. 1998) (“Under Ohio law, the failure to raise on appeal a claim that appears on the
face of the record constitutes a procedural default under the State’s doctrine of res judicata.”);
State v. Perry, 10 Ohio St. 2d 175 (Ohio 1967) (holding that res judicata bars a criminal
defendant from raising in post-conviction proceedings those claims that could have been raised
on direct appeal). And with no state-court remedies still available to him, Wesson has defaulted
this sub-claim. See Gray v. Netherland, 518 U.S. 152, 161–62 (1996) (“Because the exhaustion
requirement ‘refers only to remedies still available at the time of the federal petition,’ . . ., it is
satisfied ‘if it is clear that [the habeas petitioner's] claims are now procedurally barred under
[state] law’ . . . .” (internal citations omitted)); Alley v. Bell, 307 F.3d 380, 385 (6th Cir. 2002)
(“[I]f an unexhausted claim would be procedurally barred under state law, that claim is
procedurally defaulted for purposes of federal habeas review.”).
Moreover, Wesson does not offer any argument regarding the cause for, or prejudice
resulting from, his procedural default of this sub-claim. Nor does he contend that he is actually
innocent such that the default should be excused. Accordingly, Wesson’s sub-claim regarding
his attempted withdrawal of his Miranda waiver is, as Respondent asserts, procedurally
defaulted.
B.
Merits Analysis
28
Even if Wesson had properly preserved both Miranda challenges to his statement to the
police, they would fail. The Fifth Amendment privilege against self-incrimination is implicated
whenever an individual is “taken into custody or otherwise deprived of his freedom by the
authorities in any significant way and is subjected to questioning.” Miranda, 384 U.S. at 478.
Because custodial interrogations are said to be inherently coercive, Miranda established that a
suspect must be apprised of certain rights to protect the privilege against self-incrimination,
including the right to remain silent. Id. at 444.
A suspect may waive his Miranda rights, however, “provided the waiver is made
voluntarily, knowingly and intelligently.” Id. “Even absent the accused’s invocation of the right
to remain silent, the accused’s statement during a custodial interrogation is inadmissible at trial
unless the prosecution can establish that the accused ‘in fact knowingly and voluntarily waived
[Miranda] rights’ when making the statement.” Berghuis v. Thompkins, 560 U.S. 370, 382
(2010) (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). The prosecution must
establish waiver by a preponderance of the evidence. Id. at 384 (citing Colorado v. Connelly,
479 U.S. 157, 168 (1986)).
The Miranda waiver inquiry has two elements: (1) the waiver must be “‘voluntary in the
sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or
deception’”; and (2) it must be “‘made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.’” Id. at 382-83 (quoting Moran
v. Burbine, 475 U.S. 412, 421 (1986)). Coercive police activity “is a necessary predicate to the
finding that a confession is not ‘voluntary.’” Connelly, 479 U.S. at 167. Whether a defendant
has waived his Miranda rights and “voluntarily” confessed cannot rest on his state of mind
29
alone. Id. at 165. The second prong of the Miranda inquiry focuses not on whether the
“criminal suspect [knew] and [understood] every possible consequence of a waiver of the Fifth
Amendment privilege[,]” but on whether the “suspect [knew] that he [could] choose not to talk
to law enforcement officers, to talk only with counsel present, or to discontinue talking at any
time.” Colorado v. Spring, 479 U.S. 564, 574 (1987).
“Only if the ‘totality of the circumstances surrounding the interrogation’ reveal both an
uncoerced choice and the requisite level of comprehension may a court properly conclude that
the Miranda rights have been waived.” Burbine, 475 U.S. at 421 (quoting Fare v. Michael C.,
442 U.S. 707, 725 (1979)). Courts must examine the particular facts and circumstances
surrounding the case, including the background, experience, and conduct of the accused.
Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
The prosecution does not need to show that a waiver of Miranda rights was express. “An
‘implicit waiver’ of the ‘right to remain silent’ is sufficient to admit a suspect’s statement into
evidence.” Thompkins, 560 U.S. at 384 (quoting Butler, 441 U.S. at 376). A waiver of Miranda
rights may be implied through “‘the defendant’s silence, coupled with an understanding of his
rights and a course of conduct indicating waiver.’” Id. (quoting Butler, 441 U.S. at 373).
Finally, the defendant may withdraw a waiver of Miranda rights at any time. Id. at 38788. And once a defendant invokes a right to counsel or to remain silent, further interrogation
must cease. Id.
1.
Validity of waiver
In rejecting Wesson’s claim that his waiver of Miranda rights was invalid, the Ohio
Supreme Court reasoned:
30
{¶ 33} Proposition of law V argues that Wesson did not validly waive his rights in
accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), and therefore his motion to suppress his statement to the police should have
been granted. Wesson received Miranda warnings and orally waived each Miranda
right before making a statement to police. He nonetheless claims that “the
combination of the lack of sleep, the alcohol, the coercive nature of the setting and
defendant's lack of education combined to render [his] waiver invalid.”
{¶ 34} When a suspect is questioned in a custodial setting, the Fifth Amendment
requires that he receive Miranda warnings to protect against compelled
self-incrimination. Miranda at 478–479, 86 S.Ct. 1602, 16 L.Ed.2d 694. A suspect
may then knowingly and intelligently waive these rights and agree to make a
statement. Id. at 479, 86 S.Ct. 1602, 16 L.Ed.2d 694. If a defendant later challenges
a confession as involuntary, the state must prove a knowing, intelligent, and
voluntary waiver by a preponderance of evidence. See id. at 475, 86 S.Ct. 1602, 16
L.Ed.2d 694; Colorado v. Connelly, 479 U.S. 157, 168–169, 107 S.Ct. 515, 93
L.Ed.2d 473 (1986).
{¶ 35} To determine whether a valid waiver occurred, we “consider the totality of
the circumstances, including the age, mentality, and prior criminal experience of the
accused; the length, intensity, and frequency of interrogation; the existence of
physical deprivation or mistreatment; and the existence of threat or inducement.”
State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the
syllabus; see also Arizona v. Fulminante, 499 U.S. 279, 285, 111 S.Ct. 1246, 113
L.Ed.2d 302 (1991). We have held that a waiver is not involuntary unless there is
evidence of police coercion, such as physical abuse, threats, or deprivation of food,
medical treatment, or sleep. State v. Cooey, 46 Ohio St.3d 20, 28, 544 N.E.2d 895
(1989).
{¶ 36} At the suppression hearing, the trial court heard testimony from an expert
witness called by the defense, Dr. Robert Bellotto Jr., who used the Widmark
Method to estimate Wesson's blood-alcohol level at the time of his statement based
on information given to him by the defense. Some of the factors he considered
included height, weight, age, gender, amount and type of alcohol and food
consumed, alcohol-elimination rate, and history of alcohol use. Bellotto stated that
a 50–year–old male chronic alcoholic who is five feet, seven inches tall and weighs
147 pounds, who consumed a large bottle of Mogen David wine (18 percent alcohol)
and six to eight beers (5.5 percent alcohol) between early afternoon and 11:00 p.m.,
and who slept from approximately 11:15 p.m. to 3:15 a.m. would have a
blood-alcohol level of .17 grams per deciliter at 4:00 a.m. But he conceded that he
did not know how much alcohol or food Wesson had actually consumed on February
25 or Wesson's alcohol-elimination rate.
31
{¶ 37} During his testimony at the suppression hearing, Wesson claimed that he
drank a “fifth” of Mogen David wine and a considerable amount of beer throughout
the day on February 25, but that he did not drink any alcohol between 11:00 p.m. that
evening, when he went to bed, and 4:00 a.m. the next morning, when police
questioned him. He further claimed to have been intoxicated and falling from his
chair during the interrogation.
{¶ 38} In response, the state presented testimony from four law enforcement officers
who interacted with Wesson on the morning of February 26, 2008, each of whom
testified that he did not observe any signs of intoxication or smell alcohol on his
breath, and the three officers Wesson spoke to that morning testified that they did not
detect any slurring of his speech. Wesson had had no trouble sitting upright or
walking, and he responded appropriately to the questions asked. The officers who
had questioned Wesson denied that he had fallen out of his seat during the interview.
The state also presented the testimony of Steve Perch, a toxicologist from the
Summit County Medical Examiner's Office, who questioned Bellotto's finding and
stated that it would not be possible to correctly estimate Wesson's blood-alcohol
level without knowing his elimination rate, his food consumption that day, or his
typical alcohol consumption.
{¶ 39} The court denied the motion to suppress and found “the detectives' testimony
credible and supported by the recording of [Wesson's] interview.” After considering
all the circumstances, the court determined that Wesson “made a knowing, voluntary,
and intelligent waiver of his constitutional rights, and that his statement to police was
voluntarily made.”
{¶ 40} As we explained in State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
797 N.E.2d 71, “[a]ppellate review of a motion to suppress presents a mixed question
of law and fact. When considering a motion to suppress, the trial court assumes the
role of trier of fact and is therefore in the best position to resolve factual questions
and evaluate the credibility of witnesses.” Id. at ¶ 8. And we also stated: “[A]n
appellate court must accept the trial court's findings of fact if they are supported by
competent, credible evidence. * * * Accepting these facts as true, the appellate court
must then independently determine, without deference to the conclusion of the trial
court, whether the facts satisfy the applicable legal standard.” Id.
{¶ 41} Wesson argues that his intoxication, lack of sleep, and lack of education, in
addition to the coercive nature of the interview setting, rendered the waiver of his
constitutional rights invalid. Here, however, the trial court finding that Wesson
validly waived his Miranda rights is supported by competent and credible evidence,
consisting of the testimony of the four police officers and the audio recording of
Wesson's statement. Wesson's claim of a limited education may evidence “low
mental aptitude,” but that alone does not demonstrate involuntariness. State v. Hill,
64 Ohio St.3d 313, 318, 595 N.E.2d 884 (1992), citing Connelly, 479 U.S. at 164,
32
107 S.Ct. 515, 93 L.Ed.2d 473. Notably, Wesson's prior criminal record shows
familiarity with the criminal process, and he himself recited the Miranda warnings
at the suppression hearing. This record does not support his allegation of police
coercion, as neither the audio recording of the statement nor the testimony from the
suppression hearing indicates any physical abuse, threats, or efforts to deprive
Wesson of food, medical treatment, or sleep. The actions of the detectives in seating
him in a fixed chair and handcuffing him to a steel table in an interrogation room
while they questioned him for less than one hour do not amount to police coercion.
See McCall v. Dutton, 863 F.2d 454 (6th Cir.1988) (no coercion when officers
handcuffed a defendant and placed him on the ground, then numerous armed officers
surrounded and yelled at him); State v. Brewer, 48 Ohio St.3d 50, 58, 549 N.E.2d
491 (1990) (“find[ing] nothing improper in the ‘length, intensity, and frequency’ of
the questioning” when there was no evidence of deprivation or mistreatment and “the
actual interview took up only about three hours”).
{¶ 42} Based on the totality of the circumstances presented here, Wesson validly
waived his Miranda rights, and we reject this proposition of law.
Wesson, 137 Ohio St. 3d at 316-18.
Wesson argues that the state court’s decision was an unreasonable determination of the
facts in light of the evidence presented under § 2254(d)(2). (See Doc. 46 at 29, 32.) As he
argued to Ohio’s high court, Wesson asserts here that the circumstances surrounding his
interrogation demonstrate that his Miranda waiver was neither voluntary, in that it was an
“‘uncoerced choice,’” nor knowing, such that he possessed the “‘requisite level of
comprehension.’” Burbine, 475 U.S. at 421 (quoting Fare, 442 U.S. at 725). Respondent
contends the state court’s conclusion that the waiver was valid was “fully supported by the
record.” (Doc. 43 at 40.) The Court agrees.
Wesson cites his intellectual disability, addressed below in detail in relation to his fourth
ground for relief, as a factor preventing his knowing waiver of Miranda rights. (Doc. 46 at 29.)
As the state court noted, however, low intelligence alone does not render a Miranda waiver
involuntary. Connelly, 479 U.S. at 164 (rejecting argument that “a defendant’s mental condition,
33
by itself and apart from its relation to official coercion, should ever dispose of the inquiry into
constitutional ‘voluntariness’”).
Indeed, Wesson places more emphasis on his alleged intoxication at the time of the police
interrogation. (See Doc. 46 at 29-32.) He points to the trial testimony of Dr. Robert Bellotto, an
expert in pharmacy/medical practice and forensic toxicology, who estimated that Wesson’s
blood alcohol level at the time of his interrogation was more than twice the legal limit for
impairment in Ohio, which would have effected his executive brain functioning and judgment,
even in a chronic alcoholic like Wesson. (Id. at 29-30 (citing Doc. 13-6 (Suppression Hrg. Tr.)
at 27-30).) He cites the audio recording of the interrogation, in which he claims he sounds
intoxicated with a “strained and raspy” voice and a “lethargic and foggy” manner. (Id. at 30
(citing Doc. 36-1 (Police Interview Tr.) at 14, 15, 19, 30, 31, 40, 42, 49, 53, 54, 58-60).) He
claims he fell out of his chair while being interviewed because he was so drunk. (Id. at 31
(citing Doc. 13-6 (Suppression Hrg. Tr.) at 91).) And Detective Kebellar and a crime scene
officer, he notes, both testified at trial that they could smell alcohol on Wesson around the time
of the interrogation. (Id. at 30-31 (citing Doc. 13-21 (Trial Tr.) at 55; Doc. 13-22 (Trial Tr.) at
112).) Finally, Wesson points to the “fantastical story” he told police about his sexual
relationship with the Varholas as evidence of his inebriation. (Id. at 31 (citing Doc. 36-1 (Police
Interview Tr.) at 20-23, 29).)
As the Ohio Supreme Court reasoned, however, four police officers were unequivocal in
their testimony at the suppression hearing that Wesson was not impaired during the
interrogation. Officer Justin Ingham testified, for example:
Well, I spent a period of time with [Wesson] in the interview room. I was there
when he was taken into custody at the scene. I observed him walk both from the
34
scene to the wagon, I observed him walk inside the police station. Even while
handcuffed behind his back, he was able to walk in a straight line without staggering.
He was also able to articulate pretty well. As I previously stated, he seemed to be
in possession of his faculties and answered in an appropriate manner when
questioned.
(Doc. 13-6 (Supression Hrg. Tr.) at 104; see also Doc. 13-6 at 137-38 (Parnell Test.), 145-47
(Kabellar Test.), 163 (Harrah Test.).) Detectives Kabellar and Harrah, in particular, denied that
Wesson ever fell out of his chair during the interview. (Id. at 146, 163.) Further, this Court’s
review of the audio recording of the interview confirms the police officers’ impressions. There
is no indication that Wesson fell off his chair, and although Wesson’s speech is somewhat
slurred, that could be the result of a lack of sleep as much as any residual effects of his alleged
earlier intoxication. (See Doc. 15-2 (Recording of Interview).) Finally, Steve Perch, a
toxicologist from the Summit County Medical Examiner’s Office, cast doubt on the defense
expert’s ability to accurately estimate Wesson’s level of intoxication the morning he was
interviewed by police. (See Doc. 13-6 (Suppression Hrg. Tr.) at 120-23.)
Moreover, noticeably lacking in Wesson’s case is “the crucial element of police
overreaching.” Connelly, 479 U.S. at 163. Wesson claims the detectives “bullied him, sat close
to him . . ., and made implied threats.” (Doc. 46 at 31 (citing Doc. 13-6 (Suppression Hrg. Tr.) at
91-93).) But the only allegedly coercive conduct of the detectives that Wesson could recall
when questioned about it at the suppression hearing was that one of the detectives – he could not
remember which one – “[s]aid that he can get really mean.” (Doc. 13-6 (Suppression Hrg. Tr.) at
93).) This allegation does not amount to “a substantial element of coercive police conduct.”
Connelly, 479 U.S. at 164. Nor does being handcuffed to a steel table for less than one hour
while being interrogated. And, as the state court reasonably observed, there was no evidence in
35
the record – including the audio taped interview – of physical abuse, threats, or efforts to deprive
Wesson of food, medical treatment, or sleep.
The Ohio Supreme Court’s conclusion, therefore, that the record supported the trial
court’s ruling that Wesson’s Miranda waiver was voluntary and knowing was not an
unreasonable determination of the facts in light of the evidence presented under § 2254(d)(2).
2.
Withdrawal of waiver
Wesson asserts that even if his Miranda waiver were valid, he “unequivocally” withdrew
it during the police interrogation when he told the detectives, “I ain’t got nothin’ to say to
y’all[,]” but they continued their interrogation nonetheless. (Doc. 36 at 51-52 (citing Doc. 36-1
(Police Interview Tr.) at 14).) This Court reviews this claim de novo, and AEDPA deference
does not apply, because no state court adjudicated the claim. 28 U.S.C. § 2254(d).
As noted above, once a defendant has been instructed of his Miranda rights, if he
“indicates in any manner, at any time prior to or during questioning, that he wishes to remain
silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74. “[N]o ritualistic formula or
talismanic phrase is essential in order to invoke the privilege against self-incrimination.”
Emspak v. United States, 349 U.S. 190, 194 (1955). But the suspect’s invocation of the right
must be unambiguous. Franklin v. Bradshaw, 545 F.3d 409, 414 (6th Cir. 2008) (citing Davis v.
United States, 512 U.S. 452, 457 (1994)). The inquiry into whether a suspect has
unambiguously asserted his right to remain silent is an “objective” one. Id. (citing Davis, 512
U.S. at 457). An interrogation must end, therefore, when a suspect asserts his right to remain
silent “with sufficient clarity that a reasonable officer would perceive it as such under the
circumstances.” Id. Conversely, if a suspect’s invocation of the right “is ambiguous or equivocal
36
in that a reasonable officer in light of the circumstances would have understood only that the
suspect might be invoking the right to counsel,” the questioning may continue. Davis, 512 U.S.
at 459 (emphasis in original); see also Franklin, 545 F.3d at 414 (stating that Davis, which
concerned a suspect’s assertion of the right to counsel, applies equally to the invocation of the
right to remain silent).
Here, the detectives advised Wesson of his Miranda rights, and Wesson acknowledged
that he understood them. (Doc. 36-1 (Police Interview Tr.) at 3-4.) After receiving the
warnings, Wesson launched right into his story of what had happened the night before. (Id. at 4.)
But almost immediately, Wesson began to express a sense of weary resignation to his
predicament and powerlessness within the justice system, as if his fate were sealed and there was
nothing he could do to change the situation. “It ain’t make no difference to even say nothing to
you sir,” he told the detectives, “cause y...y...you ain’t gonna believe it anyway.” (Id. at 11.)
Wesson argues he asserted his right to remain silent soon after, in this exchange with Detective
Harrah:
Wesson:
Yeah you know . . . (inaudible) cause there . . . there was a shortcut
you know between the houses and everything and, uh, you ain’t
gonna believe this anyway so why even talk about it?
Harrah:
Well . . .
Wesson:
. . . cause they’re a white couple and, uh, I’m a black single dude by
myself so what’s the difference man?
Harrah:
Well I mean it just . . . you gotta help us to understand your . . . you
know your side of it cause we don’t know. We’re just going from
what we saw and trying to get to the bottom of it.
Wesson:
They showed me pistols before, guns before and everything you
know? You know. I don’t even know what to say to y’all.
37
Harrah:
Okay now we . . .
Wesson:
. . . I ain’t got nothing to say to y’all.
Harrah:
Well now we found you know we found your footprints coming out
of the house.
Wesson:
Yeah.
Harrah:
Okay.
Wesson:
Ain’t no doubt about that.
(Id. at 14-15 (emphasis added).)
Afterward, Wesson continued to answer the detectives’ questions. He also continued to
express his resignation and frustration with their questioning, stating: “I know you got me
already so . . . so why you asking me all these questions?” (id. at 45); “ain’t gonna make any
difference if I go to trial or not you know they’re gonna eat me alive” (id.); “It’s just death
penalty or whatever you know ain’t make no difference though.” (id. at 46); “I’m going to jail
anyway so . . . it makes no difference.” (id. at 59); “My life already gone.” (id. at 60). But
Wesson did not refuse to answer the detectives’ questions or otherwise demonstrate a desire to
end the interrogation, stating at one point: “Oh man I’m tired of talking to y’all man. But I ain’t
trying to hide nothing.” (Id. at 54.) As Respondent contends, these comments “were not based
on a desire to revoke his Miranda waiver, but rather on a momentary belief that the investigators
would not believe his account of what occurred.” (Doc. 43 at 42.)
The Sixth Circuit found similar statements did not constitute unambiguous assertions of a
defendant’s right to remain silent in Bird v. Brigano, 295 F. App’x 36 (6th Cir. 2008). In that
case, the defendant identified two instances during an interrogation where he maintained that he
had unequivocally invoked his right to remain silent. Id. at 38. First, about a half hour into the
38
interrogation, Bird stated. “‘there’s no sense me sitting here trying to say what happened with me
. . . because as usual, when it comes to Derrick Bird, he’s guilty.’” Id. He then stood up, saying,
“‘You take me in; get booked, man.’” Id. The detectives told him to sit back down, and Bird
continued to answer questions. Id. Second, after a detective later told him, “‘This is your
chance to talk about it. You [sic] been talking about it [to others],’” Bird replied, “‘Everything’s
right there in the paper. I’m done talking about it.’” Id.
After examining the surrounding circumstances, the circuit court found that the defendant
had not unequivocally invoked his Miranda rights, reasoning:
Bird argues that his standing up, especially when coupled with his later statement
that he was ‘done talking about it,’ could be viewed as an invocation of his right to
silence. And taken in isolation, out of context, that is not an unreasonable conclusion.
But context matters. When Bird stood up and talked about getting taken in (despite
already being at the police station) the state court was not unreasonable in finding
that his actions did not amount to an ‘unambiguous' request for counsel. As the
district court observed, this could reasonably be interpreted as simply an act of
frustration, not an attempt to end the interview.
Id.
Here, too, placed in the context of his entire interview, a reasonable officer would not
view Wesson’s assertion “I ain’t got nothing to say to y’all” as an unambiguous assertion of his
right to remain silent. Rather, that comment, along with numerous others like it, reflected
Wesson’s frustration with, and resignation to, the very serious situation in which he found
himself. This sub-claim also lacks merit.
II.
Second and Third Grounds for Relief: Ineffective Assistance of Trial Counsel
In his second and third grounds for relief, Wesson claims his trial counsel provided
constitutionally ineffective assistance. Specifically, he complains that counsel:
1.
failed to provide proper advice about the jury waiver;
39
2.
improperly handled the State’s plea offer;
3.
failed to impeach Mary Varhola with her prior inconsistent statements to
police;
4.
failed to present an expert in eyewitness perception and memory;
5.
failed to investigate, prepare, and present evidence during the guilt phase of
trial regarding Wesson’s relationship with Mildrain Ford and Emil Varhola’s
aggression;
6.
failed to investigate, prepare, and present mitigating evidence, including:
a.
information contained in Wesson’s prison records and an expert on prison
culture,
b.
lay witnesses who knew Wesson throughout life,
c.
Wesson’s brother’s criminal record,
d.
Wesson’s efforts to redeem himself,
e.
an expert on the link between Wesson’s limitations and crimes, and
f.
an expert on fetal alcohol spectrum disorder.7
(Doc. 36 at 103-37.)
A.
Procedural Posture
1.
Sub-Claim 3: failure to sufficiently impeach Mary Varhola
Respondent argues that Wesson’s ineffective-assistance sub-claim 3, as listed above,
based on counsel’s failure to sufficiently impeach Mary Varhola, is procedurally defaulted.
(Doc. 43 at 44.) Wesson raised this claim in his first post-conviction petition. (Doc. 12-9 at
7
Wesson also claims his trial counsel were ineffective for failing to investigate
and present evidence regarding his intellectual disability (see Doc. 46 at 132-37), which
the Court will examine below in connection with Wesson’s fourth ground for relief,
asserting he is intellectually disabled and therefore ineligible for execution.
40
184-86 (First Post-Conviction Pet.).) Although the state trial court denied this claim on the
merits, the court of appeals – the last state court to address the claim – found it barred by res
judicata, as the claim was based on the trial-court record and therefore could have been raised on
direct appeal. See State v. Wesson, No. 25874, 2012 WL 4480109, at *5 (Ohio Ct. App. Sept.
28, 2012), declining jurisdiction, State v. Wesson, 140 Ohio St. 3d 1438 (Ohio 2014).
The state court explained:
{¶ 30} Wesson's eighth ground for relief claimed that trial counsel did not do enough
to impeach Mrs. Varhola during the guilt phase. This alleged error also appears on
the face of the record. All of the arguments contained in this claim focus on
comparing Mrs. Varhola's testimony with the testimony of other witnesses. The
alleged error could have been raised on direct appeal. For example, Wesson's brief
in the Supreme Court points out that Mrs. Varhola was confused about several
details, including the time and date of the attack and what happened during the
crime. Merit Brief of Hersie Wesson, Supreme Court Case No.2009–0739, at 4.
Wesson made these precise arguments in his petition for postconviction relief.
Counsels' alleged failure to impeach Mrs. Varhola appeared on the record and,
accordingly, is barred by res judicata.
{¶ 31} The trial court addressed these grounds for relief on the merits and concluded
that Wesson was not entitled to relief. Because the alleged errors appeared on the
record, they were barred by res judicata, and the trial court should have disposed of
them on that basis. Nevertheless, this Court will not reverse a correct judgment
merely because of a flaw in the trial court's analysis.
Wesson, 2012 WL 4480109, at *5.
Wesson agrees that the state court applied the procedural bar of res judicata to his claim.
(Doc. 46 at 41-42.) Ohio’s res judicata rule precludes a defendant from raising for the first time
in post-conviction proceedings a claim that was fully litigated or could have been fully litigated
at trial or on direct appeal. State v. Perry, 10 Ohio St. 2d 175, 180 (Ohio 1967). And the Sixth
Circuit has held that Ohio’s res judicata doctrine is an adequate and independent state ground to
41
procedurally bar claims asserted in federal habeas actions. E.g., Durr v. Mitchell, 487 F.3d 423,
432 (6th Cir. 2007).
Wesson argues, however, that the state court misapplied the res judicata rule and the
Court therefore should overlook the procedural bar and review the claim de novo. (Doc. 46 at
41-45.) Indeed, federal habeas courts may review de novo an exhausted federal claim where a
state court misapplied a procedural bar and did not review the claim on the merits. See, e.g., Hill
v. Mitchell, 400 F.3d 308, 313 (6th Cir. 2005); Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir.
2001). Wesson contends the state court misapplied the res judicata bar to this ineffectiveassistance claim because the transcripts of Mrs. Varhola’s two interviews with detectives Harrah
and Kebellar – which were essential to prove her later testimony was inconsistent with
statements she had made to the detectives during the interviews – were not placed in the trialcourt record, and Wesson therefore could not have raised a claim based on those transcripts on
direct appeal under Ohio law. (Doc. 46 at 42-43 (citing State v. Madrigal, 87 Ohio St. 3d 378,
390-91 (Ohio 2000); State v. Kirkland, 140 Ohio St. 3d 73, 82 (Ohio 2014)).)
There is merit to this argument. The state appellate court described this claim as focusing
only on “comparing Mrs. Varhola’s testimony with the testimony of other witnesses,” which
necessarily arose from the trial-court record. Wesson, 2012 WL 4480109, at *5. But this
mischaracterizes Wesson’s claim. Wesson also argued to the state court, as he does here, that
counsel were ineffective for failing to sufficiently impeach Mrs. Varhola with prior inconsistent
statements she had made to the detectives. (See Doc. 12-9 (First Post-Conviction Pet.) at 18485.) This is a very different claim and one that would, in fact, require extra-record evidence –
the interview transcripts. However, this Court need not resolve this procedural issue because, as
42
will be explained below, this claim can easily be resolved on the merits. See Lambrix v.
Singletary, 520 U.S. 518, 525 (1997) (courts may skip complicated “procedural-bar issues” if the
merits are “easily resolvable against the habeas petitioner”); 28 U.S.C. § 2254(b)(2) (courts may
deny unexhausted habeas petitions on the merits).
2.
Sub-Claims 6(a), (c), and (e): failure to present mitigating evidence
and expert testimony
Wesson also raised sub-claims 6(a), (c), and (e), as listed above, regarding the failure to
investigate and present mitigating evidence and expert testimony, in his first state postconviction petition, and they were adjudicated on the merits. See Wesson, 2012 WL 4480109, at
*7-11, 13-14. These claims, therefore, are ripe for federal habeas review.
3.
Sub-Claim 6(b): failure to present lay mitigation witnesses
In sub-claim 6(b), as listed above, Wesson claims that counsel should have presented at
the mitigation phase of trial the following lay witnesses: Wesson’s cousins Herb Wesson and
Deborah Wells; Wesson’s former employer, Edgar Lee; Wesson’s son-in-law and former fellow
inmate, Corbitt Norman; Wesson’s maternal second cousin, Sharon Clark; and Wesson’s
paternal cousins, Randall Wesson and Stephen Wesson. (Doc. 46 at 122.) Respondent argues
that this sub-claim is procedurally defaulted because Wesson raised it in his second postconviction petition, and the state appellate court, the last state court to review the claim, denied it
on procedural grounds. (Doc. 43 at 57.)
Wesson concedes that his claim based on counsel’s failure to call Sharon Clark, Randall
Wesson, and Stephen Wesson is procedurally defaulted. (Doc. 46 at 123.) But he contends that
the default should be excused for cause – namely, his initial post-conviction counsel’s failure to
43
raise the claims. (Id.) That argument will be addressed in the following section as it applies to
these and the remaining ineffective-assistance sub-claims.
In addition, neither party acknowledges that Wesson raised this claim in his first state
post-conviction petition as it relates to Corbitt Norman, Herb Wesson, Edgar Lee, and Deborah
Wells. See Wesson, 2012 WL 4480109, at *10-11, *14-15. The state appellate court addressed
the merits of those sub-claims, and they are preserved for federal habeas review.
4.
Remaining sub-claims: 1, 2, 4, 5, and 6(b) (partial), (d), and (f)
Respondent argues that Wesson’s remaining ineffective-assistance claims – sub-claims 1,
2, 4, 5, and 6(b) (partial), (d), and (f), as listed above – also are procedurally defaulted. (Doc. 43
at 50, 49, 46-47, 52, 63, 61, and 57, respectively.) Wesson raised these claims in his second state
post-conviction petition, which the state appellate court, the last state court to review the claims,
dismissed as successive and untimely, stripping the court of jurisdiction. See State v. Wesson,
No. 28412, 2018 WL 1189383 (Ohio Ct. App. March 7, 2018), declining jurisdiction, State v.
Wesson, 153 Ohio St. 3d 1433 (2018), cert. denied, Wesson v. Ohio, 139 S. Ct. 644 (2018).
As Respondent argues, the failure to timely file a post-conviction petition under Ohio’s postconviction scheme constitutes an adequate and independent state ground upon which to bar
federal habeas review. See, e.g., Foster v. Warden, Chillicothe Corr. Inst., 575 Fed. App’x 650,
652 (6th Cir. 2014).
Wesson concedes this point. (See, e.g., Doc. 46 at 54.) But he argues that his default of
the claims raised in his second post-conviction petition should be excused for cause due to the
ineffective assistance of his post-conviction counsel under the Supreme Court decisions in
Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013). (Doc. 46 at
44
53-56, 64–66, 76-78, 88-90, 97-98, 119-22, 123.) In Martinez, the Supreme Court held that the
“[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause
for a prisoner’s procedural default of a claim of ineffective assistance at trial.” Id. at 9. This
holding represents a “limited qualification” to its prior decision in Coleman v. Thompson, 501
U.S. 722, 752 (1991). Martinez, 566 U.S. at 15. In that case, the Court held that prisoners have
no constitutional right to an attorney in state post-conviction proceedings, and, therefore, an
attorney’s negligence in those proceedings cannot establish cause to excuse a habeas petitioner’s
procedural default of claims in state court. Coleman, 501 U.S. at 756-57. The Martinez Court
explained that it created this exception to Coleman to acknowledge “as an equitable matter, that
the initial-review collateral proceeding, if undertaken without counsel or with ineffective
counsel, may not have been sufficient to ensure that proper consideration was given to a
substantial claim.” Martinez, 566 U.S. at 14. It was careful to note the holding’s limitations,
however, emphasizing that “[t]he rule of Coleman governs in all but the limited circumstances
recognized here.” Id. at 16.
The Court elaborated on and expanded the Martinez exception a year later in Trevino v.
Thaler, . In that case, it held that federal habeas courts may find cause to excuse a petitioner’s
procedural default where: (1) the ineffective-assistance-of-trial-counsel claim was “substantial”;
(2) the “cause” consists of there being “no counsel” or “ineffective” counsel during the state
collateral-review proceeding; (3) the state collateral-review proceeding was the “initial” review
of the petitioner’s ineffective-assistance-of-trial-counsel claim; and (4) state law requires that the
ineffective-assistance-of-trial-counsel claim be raised in the initial review post-conviction
proceedings. Trevino, 569 U.S. at 423. But the Court modified the fourth requirement so that
45
Martinez would apply in Texas, where state criminal procedure “on its face appears to permit
(but does not require) the defendant to raise the claim [of ineffective assistance of trial counsel]
on direct appeal.” Id. (emphasis original). Wesson contends his claims satisfy the Martinez /
Trevino test.
Wesson’s claims meet the third and fourth requirements of the Martinez / Trevino test:
the post-conviction proceeding at issue here provided the “initial” review of these ineffectiveassistance claims, as required under Ohio procedural law. In White v. Warden, Ross Corr. Inst.,
940 F.3d 270, 277 (6th Cir. 2019), the Sixth Circuit held that, although Martinez alone does not
apply in Ohio because Ohio permits ineffective-assistance-of-trial-counsel claims on direct
appeal, Trevino and its modification of Martinez does apply in Ohio in cases where it is “‘highly
unlikely’ that a ‘meaningful opportunity’ existed for [Ohio courts] to review the ineffectiveassistance claim on direct review.” Id. (quoting Trevino, 569 U.S. at 429). This would occur in
some cases because Ohio law limits reviewing courts on direct appeal “‘to the record of the
proceedings at trial.’” Id. (quoting McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d 741,
751 (6th Cir. 2013)). In Ohio, therefore, when an ineffective-assistance claim is based on
evidence outside the trial record, it can only be raised on post-conviction review, falling under
Trevino’s expanded Martinez rule. Id.
Respondent asserts, with no analysis, that “Wesson has offered no basis for excusing
appellate counsel’s failure to raise his claim[s] on direct appeal.” (Doc. 43 at 47.) But these
types of ineffective-assistance claims must rely on extra-record evidence to prevail.
Sub-claims 1 and 2 allege that trial counsel failed to properly advise Wesson about the jury
waiver and handle the State’s plea offer; these claims must be supported by evidence of
46
communications between defense counsel and Wesson and the prosecutors, which would not be
contained in the record. And the remaining sub-claims are based on counsel’s failure to
investigate or present evidence and expert testimony; they, too, necessarily would require the
submission of the extra-record evidence he claims was overlooked or omitted from the defense’s
case.
As the Sixth Circuit observed in White, “[i]n Trevino, the Supreme Court recognized that
‘the need to expand the trial court record’ is critical to ensuring meaningful review.” White, 940
F.3d at 277 (quoting Trevino, 569 U.S. at 428). The court added that “Ohio courts, too, have
recognized this necessity and have refused to adjudicate ineffective-assistance claims on direct
appeal because of the need for additional evidence.” Id. (citations omitted). “In these instances,
Ohio effectively requires defendants to raise ineffective-assistance claims in post-conviction
petitions.” Id. The Court finds, therefore, that, as in White, Trevino applies in this case,
satisfying the fourth requirement of the Martinez / Trevino test.
Wesson’s claims do not, however, meet the first and second requirements – namely, that
they are “substantial” and post-conviction counsel was ineffective for failing to raise them. As
will be explained below, even if the Court were to review sub-claims 1, 2, 4, 5, and 6(b) (partial),
(d), and (f), these claims “do[] not have any merit.” Martinez, 566 U.S. at 16. And it follows,
therefore, that post-conviction counsel was not constitutionally ineffective for failing to raise
47
them.8 Accordingly, Wesson’s default of these sub-claims is not excused under the Martinez /
Trevino rule and the claims are procedurally defaulted.
B.
Merits Analysis
Even if all of Wesson’s claims of ineffective assistance of trial counsel were preserved
for federal habeas review, they would not prevail. The Supreme Court has long recognized the
Sixth Amendment right to the effective assistance of counsel at trial as a “bedrock principle in
our justice system.” Martinez, 566 U.S. at 12; see also Gideon v. Wainwright, 372 U.S. 335,
342-44 (1963). The Court announced a two-prong test for claims of ineffective assistance of
counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984). First, the petitioner must
demonstrate that counsel’s errors were so egregious that “counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id at 687. To determine if
counsel’s performance was “deficient” pursuant to Strickland, a reviewing court must find that
the representation fell “below an objective standard of reasonableness.” Id. at 688. It must
8
For the same reason, the Court also denies Wesson’s request for an evidentiary
hearing on the procedural default of sub-claims 1 (jury waiver); 2 (plea offer); 3
(impeachment of Mrs. Varhola with prior inconsistent statements); 4 (eyewitness
memory expert); and 6(f) (fetal alcohol spectrum disorder expert). (See Doc. 47.)
“[W]hen a court is able to resolve a habeas claim on the record before it,” and the
petitioner “has not identified any evidence that he would introduce other than exhibits
already made part of the state or federal habeas record,” an evidentiary hearing is not
necessary. Black v. Carpenter, 866 F.3d 734, 742 (6th Cir. 2017) (citing Sawyer v.
Hofbauer, 299 F.3d 605, 612 (6th Cir. 2002)) (finding district court acted within its
discretion in denying petitioner’s request for an evidentiary hearing on Atkins claim
where he failed to demonstrate that a “hearing was required in order for the district court
properly to evaluate the voluminous record before it” under the state standard for
intellectual disability).
48
“reconstruct the circumstances of counsel’s challenged conduct” and “evaluate the conduct from
counsel’s perspective at the time.” Id. at 689.
Second, the petitioner must show that he or she was prejudiced by counsel’s errors. To
do this, a petitioner must demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. “It is
not enough ‘to show that the errors had some conceivable effect on the outcome of the
proceeding.’” Id. at 693 (citation omitted). Counsel’s errors must be “so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. If a petitioner fails to
prove either deficiency or prejudice, his ineffective-assistance claim will fail. Id.
The Supreme Court has emphasized that “‘[s]urmounting Strickland’s high bar is never
an easy task.’” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Padilla v. Kentucky,
559 U.S. 356. 371 (2010)). It has explained,
An ineffective-assistance claim can function as a way to escape rules of waiver and
forfeiture and raise issues not presented at trial, and so the Strickland standard must
be applied with scrupulous care, lest intrusive post-trial inquiry threaten the integrity
of the very adversary process the right to counsel is meant to serve.
Id. (internal quotation marks and citations omitted). Thus, “[j]udicial scrutiny of a counsel’s
performance must be highly deferential” and “every effort [must] be made to eliminate the
distorting effects of hindsight . . . .” Strickland, 466 U.S. at 689. “Strickland specifically
commands that a court ‘must indulge [the] strong presumption’ that counsel ‘made all significant
decisions in the exercise of reasonable professional judgment,’” recognizing “‘the
constitutionally protected independence of counsel and . . . the wide latitude counsel must have
49
in making tactical decisions.’” Cullen v. Pinholster, 563 U.S. 170, 195 (2011) (quoting
Strickland, 466 U.S. at 689).
The Court has observed that the standards imposed by Strickland and § 2254(d) are both
“highly deferential,” so that in applying them together, “review is ‘doubly’ so.” Harrington, 562
U.S. at 105 (internal quotation marks and citations omitted). It has cautioned:
Federal habeas courts must guard against the danger of equating unreasonableness
under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies,
the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.
Id.
1.
Failure to properly advise Wesson about his jury waiver
Wesson argues that his trial counsel were constitutionally ineffective for misinforming
him that he could not withdraw his waiver of his right to a jury trial when he asked his attorneys
if he could to do so shortly after signing a waiver and before his trial began. (Doc. 46 at 71-82.)
In Ohio, a defendant may withdraw a jury waiver “at any time before the commencement of the
trial.” Ohio Rev. Code § 2945.05. Because no state court has adjudicated this claim on the
merits, this Court reviews the claim de novo.
Wesson waived his right to a jury trial, whether orally in court or by signing a court
document, three times. On January 6, 2009, the court conducted a hearing on the matter, at
which Wesson appeared in court with counsel. (Doc. 13-16 (Trial Tr.).) His attorney told the
court that he had spoken to Wesson and Wesson’s sister and cousin about numerous issues for a
“long time” the day before, and Wesson “indicated his desire to waive the jury.” (Id. at 3.) He
explained that he had just “spent a few minutes in the back room” with Wesson going over the
50
court’s prepared “Waiver of Trial by Jury,” and defense counsel and Wesson had signed it. (Id.
at 4; see also Doc. 12-6 at 11 (Written Jury Waiver).)
The judge then conducted an extensive colloquy with Wesson, in which Wesson agreed
that he had had “ample opportunity” to discuss the waiver with his attorneys; he understood what
rights he was relinquishing and the charges and possible penalties he faced; and he was
comfortable with his decision. (Doc. 13-16 (Trial Tr.) at 4-20.) Wesson also spoke up when he
did not understand something the judge had said or needed time to privately discuss a matter
with counsel. (See id. at 6-7, 17.) And Wesson denied being threatened, coerced, or forced into
waiving his jury rights. (Id. at 15.) His attorney attested, “We’ve talked about this issue for six
months at various times and he’s spent a great deal of time in the last four hours talking about it,
so I think he is cognizant of all of the ramifications, all of his rights, and feels as I do and as Don
does that this is the appropriate way to go in the case.” (Id. at 16-17.) The judge then read
Wesson the written Waiver, and Wesson acknowledged understanding it and voluntarily signing
it. (Id. at 18-20.)
Wesson and his counsel appeared in court the next day as well, and Wesson signed an
Amended Waiver of Trial by Jury. (Doc. 13-17 (Trial Tr.) at 2-5.) The amended waiver stated
that the two additional judges were “to be designated pursuant to law” rather than by the Chief
Justice as noted in the original written waiver. (Doc. 12-6 at 14-15 (Amended Waiver of Trial
by Jury).)
Wesson did not complain about his trial counsel’s advice concerning his jury waiver until
his second state post-conviction petition in 2015. He submitted an affidavit with the petition in
which he averred that “[o]n the day [he] needed to sign the jury waiver,” while still in the
51
courthouse, he “changed [his] mind about it” and “wanted to take [it] back . . . .” (Doc. 41-1 at
161 (Wesson Aff.).) But, he recalled, his attorneys told him “‘no’ . . . [he] could not take [his]
jury waiver back because it was ‘too late.’” (Id.) He attested that he would have withdrawn the
waiver if he had known it was permissible. (Id.) Wesson also submitted with his second postconviction petition copies of two emails his attorney Whitney sent to a defense expert. In one,
dated December 18, 2008, he wrote that he had visited Wesson the previous Friday and Wesson
“want[ed] a jury.” (Id. at 165 (Whitney Dec. Email).) In the other, dated January 7, 2009,
Whitney stated that Wesson “agree[d] to waive the jury and consent to a panel. He changed his
mind a few times since then but he has entered a waiver of jury.” (Id. at 166 (Whitney Jan.
Email).) Wesson asserts that this evidence demonstrates his trial counsel’s deficient
performance in misinforming him about his ability to withdraw his jury waiver.
Respondent disputes that the record supports this claim. (Doc. 43 at 51.) He argues that
the Sixth Circuit’s decision in Sowell v. Bradshaw, 372 F.3d 821 (6th Cir. 2004), is on point. In
that case, the petitioner argued that his trial counsel provided constitutionally ineffective
assistance by advising him to waive a jury trial without sufficient assurances that the jury waiver
would result in him escaping the death penalty. Id. at 827. The court found that counsel did not
perform deficiently, because, although he may have advised the petitioner to waive a jury trial
based on a mistaken belief that the judge who would preside over the trial would not impose the
death penalty, the record did not show that counsel had no reasonable basis for that belief, or that
he ever guaranteed the petitioner a particular result or misstated the law. Id. at 837-38. In fact,
counsel discussed the waiver with the petitioner at length, which the petitioner acknowledged.
Id. at 837.
52
Similarly, here, Wesson’s trial counsel discussed the issue of a jury waiver extensively
with him. The judge also carefully and thoroughly questioned him about his understanding of
the waiver. Wesson expressly and repeatedly agreed that he understood the nature of the rights
he was waiving and the charges and penalties he faced, and told the judge when he did not
understand something and needed clarification from counsel. At no point did Wesson express
any reservation about the waivers when he signed them in court.
Wesson asserts that his situation differs from Sowell because his trial counsel misstated
the law about his ability to withdraw the waiver. (Doc. 46 at 80.) But the record does not
provide conclusive evidence that the alleged misstatement of law occurred. The emails do
nothing more than show what is undisputed: that Wesson wavered in his decision about having a
jury trial. They do not establish that Wesson changed his mind after signing the original or
amended waiver and was then given the alleged erroneous information about withdrawing them.
That leaves just Wesson’s affidavit as support for this claim, which alone is insufficient evidence
of counsel’s misconduct. See, e.g., Hoffner v. Bradshaw, 622 F.3d 487, 500 (6th Cir. 2010)
(declining to credit a “self-serving” affidavit declaring that habeas petitioner told his counsel that
he had requested an attorney before being interrogated and was denied one but trial counsel said
it “didn’t matter” and failed to move to suppress taped confession on that ground where there
was evidence in the record to contradict it).
Counsel’s performance with regard to the jury waiver, therefore, did not fall below an
objectively unreasonable level, and the Court need not discuss Strickland’s prejudice prong.
2.
Failure to properly handle plea offer
53
Wesson also faults his trial counsel for improperly handling the State’s plea offer on the
aggravated murder charge. (Doc. 46 at 59-71.) He claims that, although his trial counsel
advised him to accept a plea offer of life without parole, counsel “affirmed Wesson’s false
assumption that the State would not indict a defendant for similar crimes if committed against
African American victims.” (Id. at 60.) From that point, Wesson alleges he was convinced that
the plea offer “was not so good because [he] was black and the Varholas were white.” (Doc. 411 at 162 (Wesson Aff.).) This sub-claim, too, is reviewed de novo.
“During plea negotiations defendants are ‘entitled to the effective assistance of
competent counsel.’” Lafler v. Cooper, 566 U.S. 156, 162 (2012) (quoting McMann v.
Richardson, 397 U.S. 759, 771 (1970)). The parties conducted extensive plea negotiations in
Wesson’s case. At a pretrial hearing, the prosecutor explained:
Your honor, the reason we’re here is the State had made an offer to this defendant
that in exchange for a plea of aggravated murder, attempted aggravated murder, and
tampering with evidence the State would be willing to dismiss all death
specifications and we would proceed on an agreed sentence and ask the Court to
impose a sentence of life without parole.
It is the State’s understanding this defendant is declining that offer.
(Doc. 13-13 (Pretrial Hrg. Tr.) at 2.) Wesson’s attorney then stated,” Yes, Judge, that is correct.
We came here today for that – for the purpose of trying to resolve the case, and apparently
cannot.” (Id. at 4.)
Other members of Wesson’s trial team also tried to convince Wesson and his family to
accept a plea. The mitigation specialist, Thomas Hrdy, wrote to the psychologist expert, Jeffrey
Smalldon, that “our negotiations fell [through] for [life without parole]. Hersie’s family was
against it and Hersie won’t do it without them.” (Doc. 41-1 at 164 (Hrdy Email).) Dr. Smalldon
54
replied, “Obviously, I’m distressed to hear the news re the role of Hersie’s family in convincing
him not to take a plea. . . . I was up to see Hersie last week, and when I left I felt fairly certain
that he’d be open to taking it.” (Id. (Smalldon Email).)
The day the trial began, Wesson’s lead counsel, Whitney, proffered information into the
record, outside the presence of the three-judge panel, regarding the plea negotiations and his
struggle to convince Wesson and his family to accept the State’s offers. He recounted:
Early on a couple of months ago . . . there was discussion about Hersie pleading to
life without parole.
At that time we actually did work out a plea to life without parole.
I have a letter that I sent to Margaret Kanellis which does, in fact, outline what that
plea was going to be.
We came here ready to make that plea and then Hersie would not do it that day.
We then had many, many discussions with his family, being his sisters and his
cousins and Hersie; in fact, the judge was kind enough to permit us to even have the
family here at one point to talk with Hersie about negotiating the case.
There was some talk, actually, about a 30-to-life plea.
...
That may have come about, but Hersie just turned all of those down.
He didn’t want . . . to plead to life without parole, nor did he want to plead to 30 to
life. And wouldn’t authorize us to negotiate any of those kinds of pleas.
I’m putting this on the record now just so that my recollection of that is – and Don’s
recollection of that is evident, that our recollections are fresh regarding that now,
rather than if something happens in this case rather than three or four years from now
and try to rethink what was discussed.
So, we’re just putting it on the record that – actually Tom Hrdy talked with the
family, who is our mitigation person, talked with the family about – Hersie’s family
meaning his sisters and that and others, about trying to negotiate life without parole;
they were against it, for it, against it, back and forth.
55
Dr. Smalldon, our mitigation psychologist, talked with Hersie at some length about
that, trying to resolve the case, and thought maybe that we should – that things were
moving along toward that end; and we gathered up again for that, I went over and
saw Hersie and spent a long time with him and his family talking about that in the
jail; but it never really came to fruition at all and Hersie made the decision that he
wanted a trial in which then he made the decision to withdraw his right to a jury and
try to a three-judge panel.
And, again, we don’t want this to be public record to go into the – not public record,
but certainly not a record that we want the judges to see; and I asked the Judge,
Judge Teodosio, if he would be kind enough to give us the opportunity to put it on
the record outside of the presence of the three Judges and he permitted that.
...
And there’s been a lot of effort to do that over the – from the beginning of the case
until actually it’s now almost 3:00 and actually I mentioned it to Hersie again at 1:00
and he said, “We’re ready to go, I’m going to go.”
So, we’re here trying the case.
(Doc. 13-18 (Trial Tr.) at 20-24.)
Wesson acknowledges that the State offered him a plea of life without parole. (Doc. 46
at 63 (citing 41-1 at 161-62 (Wesson Aff.)).) His complaint, rather, is that his attorney Hicks
“unsettled” him about the nature of the plea, which led him to reject the offer. He explained in
his affidavit:
I was very confused about the plea and what to do.
When I talked about the plea with my trial lawyers, I asked them: “If the victims
were black and lived on the east side of Akron, do you think I’d get the death penalty
or something like fifteen to life?” Don Hicks said, yes, if that was the case, the offer
would be something like fifteen to life. I knew then that the plea offer was not so
good because I was black and the Varholas were white. My lawyers did not say
anything to change my opinion about that. What my lawyer told me made me think
that the race of the Varholas was why I didn’t get a better plea offer.
(Doc. 41-1 at 161-62 (Wesson Aff.).)
56
In addition, Wesson claims he “needed more information about pleading out to a death
penalty case compared to [pleading in noncapital cases].” (Id. at 162.) He did not know, for
example, what it was like to live on death row. (Id.)
Respondent argues that this record precludes a claim of ineffective assistance under
Lafler because, as Wesson concedes, his counsel advised him to accept the State’s offer. (Doc.
43 at 49-50.) The Court agrees. Defense counsel struggled over many months to convince
Wesson and his family to accept a plea offer, and were so concerned about his refusal to do so
that they placed an account of their efforts in the record. One of the attorneys may have told
Wesson that the race of his victims impacted the plea offer, as Wesson alleges, but that does not
mean his counsel told him the offer was not “so good.” And his lawyers may not have been able
to change his mind about that, as Wesson claims, but that does not mean they did not try. The
record demonstrates they did, in fact, try very hard to persuade Wesson to accept the plea offer.
There is no evidence that counsel performed deficiently in those efforts, and this sub-claim fails.
3.
Failure to impeach Mary Varhola
Wesson also claims his trial counsel were ineffective in failing to sufficiently impeach
the credibility of Mary Varhola, the victim’s wife who survived the attack and was the State’s
key witness. (Doc. 46 at 37-48.) He raised this claim in his first post-conviction petition. (Doc.
12-9 at 184-86 (First Post-Conviction Pet.).) As the last state court to review this claim found it
procedurally barred and did not adjudicate it on the merits, as explained above, the Court will
also review this sub-claim de novo.
Because Mrs. Varhola’s health was too fragile for her to appear at trial, her testimony
was presented and admitted at trial through a videotaped deposition conducted two months
57
beforehand. (See Doc. 13-20 (Trial Tr.) at 50-51.) Wesson asserts that Mrs. Varhola’s
deposition testimony was inconsistent in several significant respects with statements she had
made to detectives during two interviews, on March 24, 2008, and July 22, 2008, and was
influenced by the detectives’ questioning. (See Doc. 46 at 45-46.) Wesson concedes that his
attorneys did, in fact, cross-examine Mrs. Varhola during her deposition about numerous
inconsistent statements she had made to the police. (Id. at 40-41.) But he faults his counsel for
not pressing her further on these inconsistencies. In particular, she testified at her deposition that
Wesson told her he wanted to kill his girlfriend; but counsel did not ask her if she told the
detectives that she believed the assailant’s girlfriend may have helped him hide the knife after
the attack. (Id. at 45.) Finally, counsel did not ask Mrs. Varhola about her inconsistent
statements regarding the amount of times Wesson had visited her home before the attack. (Id. at
41.)
“Whether, and to what extent, a witness should be cross-examined is ‘virtually
unchallengeable’ if the decision is made after considering the relevant law and facts.” Clements
v. United States, No. 16-3063, 2017 WL 3185180, at *5 (6th Cir. 2017) (quoting Strickland, 466
U.S. at 690). See also Campbell v. United States, 364 F.3d 727, 735 (6th Cir. 2004) (holding
that counsel’s performance in failing to impeach coconspirator with minor inconsistencies in
coconspirator’s prior trial testimony was not deficient, but was reasonable trial strategy); Moss v.
Hofbauer, 286 F.3d 851, 864 (6th Cir. 2002) (holding decision not to cross-examine a witness
was strategic choice made after considering the relevant law and facts and therefore “virtually
unchallengeable” under Strickland; dissent’s reliance upon hypothetical areas of cross-
58
examination “contradicted Strickland’s admonition against second-guessing the performance of
counsel”).
In this case, a review of the Mrs. Varhola’s testimony demonstrates that Wesson’s
counsel conducted a thorough and meaningful cross-examination of Mrs. Varhola, including
asking her numerous questions about her prior statements to police. For instance, defense
counsel repeatedly asked Mrs. Varhola at her deposition if she recalled telling the detectives that
she saw the assailant in her kitchen before he attacked her husband, but she was adamant that she
did not see the assailant until after the attack. (Doc. 13-20 (Trial Tr.) at 118-20.) During another
period of questioning, defense counsel tried to get Mrs. Varhola to confirm her statement to the
detectives that she did not see the assailant take anything out of the house, but she stuck with her
account that she saw the attacker steal money from her purse and take her husband’s wallet. (Id.
at 121-22.) Defense counsel also was able to show the inconsistencies between Mrs. Varhola’s
deposition testimony and her police interviews through examining Detective Harrah. Attorney
Whitney went over the transcripts of the police interviews of Mrs. Varhola in great detail. (Doc.
13-23 (Trial Tr.) at 84-91.) He asked Harrah, for example, whether Mrs. Varhola told him about
the attacker taking her husband’s wallet, and he testified that she said he “‘probably did.’” (Id.
at 87.) Wesson’s counsel highlighted the inconsistencies in her testimony in their closing
argument. (See, e.g., Doc. 13-25 (Trial Tr.) at 28.)
Given these efforts to impeach Mrs. Varhola with her prior inconsistent statements,
counsel may have made a legitimate tactical decision to forgo further challenging a confused,
frail, and highly sympathetic witness, especially when her testimony, confused as it was, was
damaging and the other evidence against Wesson was substantial. See Strouth v. Colson, 680
59
F.3d 596, 602 (6th Cir. 2012) (“It is not easy to satisfy Strickland through the failure to impeach
prosecution witnesses when the impeachment evidence is weak and cumulative, and the evidence
of the defendant’s guilt is “overwhelming,” all true here.”). This sub-claim is meritless.
4.
Failure to present eyewitness identification expert
Wesson also complains that his trial counsel were ineffective in failing to present an
eyewitness memory expert to further undermine Mrs. Varhola’s testimony. (Doc. 46 at 48-59.)
Wesson raised this claim in his second post-conviction petition, which was denied on procedural
grounds, and this sub-claim is therefore subject to de novo review.
Wesson supports this claim with the an affidavit of Dr. Scott Gronlund, a tenured
professor of psychology at the University of Oklahoma and expert in memory and eyewitness
identification. (Doc. 41-2 at 1 (Gronlund Aff.).) He contends that an expert such as Dr.
Gronlund could have explained to the court how memory works and how difficult it is to
distinguish a memory of a real event from a suggested or inferred event. (Doc. 46 at 57.)
Dr.Gronlund opined that Mrs. Varhola’s testimony was “an amalgamation of actual and
imagined/suggested events that cannot be teased apart.” (Doc. 41-2 at 5 (Gronlund Aff.).)
Trial counsel provides ineffective assistance when he or she “‘fails adequately to
investigate, and to introduce into evidence, information that demonstrates [a] client’s factual
innocence, or that raises sufficient doubts as to that question to undermine confidence in the
verdict.’” Jackson v. Bradshaw, 681 F.3d 753, 762 (6th Cir. 2012) (quoting Richey v. Bradshaw,
498 F.3d 344, 362 (6th Cir. 2007)). The Supreme Court has recognized that “identification
evidence is peculiarly riddled with innumerable dangers and variable factors which might
seriously, even crucially, derogate from a fair trial.” United States v. Wade, 388 U.S. 218, 228
60
(1967). While the Sixth Circuit has noted that “eyewitness misidentification accounts for more
false convictions in the United States than any other factor[,]” and expert testimony on the
subject is “‘universally recognized as scientifically valid and of ‘aid to the trier of fact’ for
admissibility purposes.’” Jackson, 681 F.3d at 762 (quoting Ferensic v. Birkett, 501 F.3d 469,
478, 482 (6th Cir. 2007)).
Nevertheless, “[t]he selection of an expert witness is a paradigmatic example of the type
of ‘strategic choic[e]’ that, when made ‘after thorough investigation of [the] law and facts,’ is
‘virtually unchallengeable.’” Hinton v. Alabama, 571 U.S. 263, 275 (2014) (quoting Strickland,
466 U.S. at 690). In Jackson v. Bradshaw, the Sixth Circuit held that a trial counsel’s decision
not to present expert testimony on eyewitness identification was not unreasonable where they
had used other means to demonstrate the potential weaknesses of eyewitnesses’ identification of
the petitioner. Jackson, 681 F.3d at 762-63. Defense counsel in that case instead relied on
cross-examination and closing arguments to impeach the eyewitness testimony. Id. at 763. The
court also concluded that there was no prejudice to the petitioner even if counsel were deficient
in this respect because the eyewitness identification was not the “entire basis of the prosecution’s
case” against the petitioner. Id.
Similarly, as explained above, Wesson’s trial counsel used their cross-examination of
Mrs. Varhola and the detectives and their closing argument to emphasize Mrs. Varhola’s many
inconsistent statements to the detectives. Moreover, as Respondent argues, this is not a case
where the eyewitness identification was critical to the prosecution. The State had substantial
other evidence of Wesson’s commission of his crimes, including his admission of guilt, the cuts
on his hands and blood on his clothing and shoes when he was found by police, Wesson’s blood
61
found in the Varhola’s house, Mr. Varhola’s rifle with Wesson’s DNA on it that was found in the
Varhola’s yard, and Mr. Varhola’s empty wallet that was found on a neighbor’s property. (Doc.
13-25 (Trial Tr.) at 37-42 (prosecution’s closing argument describing evidence admitted against
Wesson).)
Wesson’s trial counsel, therefore, did not provide ineffective assistance in failing to
present an expert on eyewitness identification to impeach Mrs. Varhola’s credibility, and this
claim fails.
5.
Failure to investigate, prepare, and present evidence during
the guilt phase of trial regarding his relationship with Mildrain
Ford and Mr. Varhola’s aggression
Wesson also asserts that his trial counsel should have presented evidence concerning: (1)
his relationship with his girlfriend, Mildrain “Mimi” Ford, to rebut the prosecution’s theory that
he went to the Varhola’s house that night to steal a gun with which he could murder Ms. Ford;
and (2) Mr. Varhola’s alleged “history of aggressive behavior,” to support Wesson’s assertion
that Mr. Varhola provoked him to become violent. (Doc. 46 at 83-102.) Because Wesson raised
these claims in his second post-conviction petition, which the state appellate court denied on
procedural grounds, the Court reviews these claims de novo.
“When counsel focuses on some issues to the exclusion of others, there is a strong
presumption that he did so for tactical reasons rather than through sheer neglect.” Yarborough v.
Gentry, 540 U.S. 1, 8 (2003); see also Gonzalez v. United States, 533 U.S. 242, 249 (2008)
(“Numerous choices affecting conduct of the trial, including . . . the witnesses to call, and the
arguments to advance, depend not only upon what is permissible under the rules of evidence and
procedure but also upon tactical considerations of the moment and the larger strategic plan for
62
the trial.”). Thus, “[w]hich witnesses, if any, to call, and when to call them, is the epitome of a
strategic decision, and it is one that [courts] will seldom, if ever, second guess.” Waters v.
Thomas, 46 F.3d 1506, 1512 (11th Cir. 2016) (en banc).
Wesson contends his trial counsel should have investigated and presented evidence at
trial about his “amiable relationship” with Mildrain Ford, who filed a police report against him
the day of the murder after a dispute, leading numerous law enforcement agencies to search for
him. (Doc. 46 at 90-91.) He asserts that this evidence would have undercut the State’s theory
that Wesson’s motive in the attack was to steal a gun to use to kill Ford. (Id.) Wesson cites to
several police reports of complaints filed by Ford against Wesson. The first is the report filed on
February 25, 2008, the day of the murder, reporting that Ford “stated that the suspect called and
threatened to kill her and break into her apartment.” (Doc. 41-2 at 52.) Another, filed on
February 4, 2008, recounted that Ford claimed Wesson had kicked in her door and punched her
in the head, but the police did not observe any physical marks on her and could not determine a
“primary physical aggressor.” (Id. at 53.) The officers advised Ford to “follow up with the
prosecutor.” (Id.) A third, filed on September 14, 2007, reported that Ford claimed Wesson
stole her purse, but that she has “mental health issues” and seemed “very paranoid.” (Id. at 55.)
Other records showed that Ford frequently made emergency calls (id. at 74, 76, 78), one of
which concerned an allegation that Wesson had threatened her with a knife (id. at 62). Wesson
also points to letters between him and Ford that he claims “establish a romantic relationship”
between them that continued after Wesson was convicted. (Id. at 31-49.)
Wesson also argues that his trial counsel should have presented evidence of Mr.
Varhola’s alleged “history of aggressive or threatening behaviors,” to bolster his statement to the
63
police that Mr. Varhola suddenly became angry with him and provoked him into fighting and to
undermine the State’s theory that Wesson’s violent attack on the Varholas was part of a
purposeful plan to steal a gun to use against his girlfriend. (Doc. 46 at 99-101.) As support,
Wesson points to evidence of two complaints about Mr. Varhola’s conduct made by neighbors in
1997 (id. at 24-27), and court records showing Mr. Varhola was charged with disorderly conduct
in 1998 and convicted of assault and battery in 1962 (id. at 28-29.)
Wesson’s counsel were not ineffective for failing to investigate or present this evidence
at trial. They reasonably could have concluded that this information had limited, if any,
probative value, and Wesson would be more prejudiced by its introduction than its omission.
The evidence about Ms. Ford does not show that she and Wesson had an “amiable relationship”
before the murder, the time period most relevant to Wesson’s motive in the attack. If anything,
the evidence is more akin to impeachment evidence, which counsel could have deduced would
backfire on Wesson by portraying the opposite of a loving relationship; instead, the records show
a volatile relationship between a troubled, unstable woman and a threatening, aggressive man,
fitting neatly with the prosecution’s theory of the case. Similarly, the evidence of Mr. Varhola’s
alleged unneighborly behavior and prior convictions for disorderly conduct and assault – all of
which occurred at least a decade before his death and one of which (the assault) happened more
than forty years before his murder – would be just as likely to offend a trier of fact for maligning
the victim of a violent murder as bolster Wesson’s implausible-on-its-face story that Mr.
Varhola, an 81-year-old man in poor health who used an oxygen tank to breathe, suddenly
instigated a fight with him. This sub-claim lacks merits.
64
6.
Failure to investigate, prepare, and present mitigating
evidence
Wesson’s third ground for relief alleges that his trial counsel also were ineffective in
investigating, preparing, and presenting certain witnesses and other evidence at the sentencing
phase of his trial, including: (1) information contained in his prison records and an expert on
prison culture; (2) lay witnesses who knew Wesson throughout life; (3)Wesson’s brother’s
criminal record; (4) Wesson’s efforts to redeem himself; (5) an expert on the link between
Wesson’s limitations and crimes; and (6) an expert on fetal alcohol spectrum disorder.
Counsel in capital cases have an “obligation to conduct a thorough investigation of the
defendant’s background” for mitigation purposes. Williams v. Taylor, 529 U.S. 362, 396 (2000).
In Strickland, the Supreme Court noted that a capital sentencing proceeding “is sufficiently like
a trial in its adversarial format and in the existence of standards for decision” that counsel’s role
in the two proceedings is comparable: “to ensure that the adversarial testing process works to
produce a just result under the standards governing decision.” Strickland, 466 U.S. at 686; see,
e.g., Wiggins v. Smith, 539 U.S. 510, 525 (2003) (petitioner had an “excruciating life history,”
yet counsel focused exclusively on his direct responsibility for murder); Rompilla, 545 U.S. at
389-93 (counsel ineffective where he failed to examine court file of defendant’s prior conviction
which contained a range of vital mitigation leads regarding defendant’s childhood and mental
health problems); Frazier v. Huffman, 343 F.3d 780, 795-99 (6th Cir. 2003) (counsel ineffective
where he failed to introduce any mitigating evidence in either guilt or penalty phases of trial and
he was aware of petitioner’s brain injury).
65
Nevertheless, “the duty to investigate does not force defense lawyers to scour the globe
on the off chance something will turn up; reasonably diligent counsel may draw a line when they
have good reason to think further investigation would be a waste.” Rompilla, 545 U.S. at 383.
See, e.g., Wiggins, 539 U.S. at 525 (further investigation excusable where counsel has evidence
suggesting it would be fruitless); Strickland, 466 U.S. at 699 (counsel could “reasonably surmise
. . . that character and psychological evidence would be of little help”); Burger v. Kemp, 483
U.S. 776 (1987) (finding limited investigation reasonable because all witnesses brought to
counsel’s attention provided predominantly harmful information). The Court cautioned in
Strickland that “a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s
judgments.” Strickland, 466 U.S. at 691.
a.
information contained in Wesson’s prison
records and expert testimony regarding prison
culture
Wesson first faults his trial counsel for not presenting mitigating evidence from his
prison records and expert testimony regarding prison culture to demonstrate that he could adapt
well to life in prison if given a life sentence. (Doc. 46 at 108-12; 114-16.) He presented these
claims in his first state post-conviction petition, and they were adjudicated on the merits. The
last state court to review the claims, the state appellate court, opined:
{¶ 42} In his first three grounds for relief, Wesson argued that he was denied the
effective assistance of counsel because of counsels' failure to investigate, prepare,
and present evidence of his ability to adapt to prison. He relies on Skipper v. South
Carolina, 476 U.S. 1 (1986), to support his argument.
{¶ 43} Ronald Skipper was held for more than seven months while waiting for his
murder trial. Id. at 4. At his capital sentencing hearing, he sought to introduce
evidence of his good behavior in jail during the time he waited for trial. Id. The trial
66
court denied his request to call three witnesses to testify about his jail behavior
during his pretrial detention. Id. at 3. The prosecutor, however, in closing argument,
told the jury of the dangers Skipper would pose if sentenced to prison; he even
argued that Skipper could be expected to rape other inmates. Id. at 3. The jury
sentenced Skipper to death. Id. The United States Supreme Court held that under
these circumstances, it appeared reasonably likely that the exclusion of evidence of
good behavior in jail while awaiting trial may have affected the jury's sentencing
decision. Id. at 8.
{¶ 44} The Supreme Court described this type of evidence as “potentially
mitigating.” Id. at 5. In a footnote, the Court recognized that the relevance of this
evidence may hinge on the State's case. Id. at n. 1. For example, the prosecutor
argued that Skipper could not be trusted if he were sentenced to prison. Id. at 5.
Where the state “relies on a prediction of future dangerousness” in seeking the death
penalty, the defendant must be given an opportunity to present evidence in response.
Id. at n. 1.
{¶ 45} In this case, the State did not argue that Wesson would be dangerous if he
were incarcerated and the trial court did not exclude any relevant evidence. In fact,
Wesson was able to introduce evidence of his past adjustment to prison through the
testimony of Dr. Smalldon, a forensic psychologist who testified extensively in
mitigation.
{¶ 46} In his petition, Wesson argued that his conduct during his previous 20 years
of incarceration demonstrated that he would not be a threat to anybody in prison and,
therefore, he would be a good candidate for a sentence for life without parole instead
of death. When considering Wesson's sentence, the trial court noted that it gave a
small amount of weight to Wesson's cooperative conduct in jail and the absence of
bad conduct in prison.
{¶ 47} Wesson's first and second grounds for relief were that trial counsel failed to
investigate and present evidence about his adaptability to prison and his positive
contributions to prison life. Wesson focused on three main points in support of these
grounds for relief to argue that trial counsel could have done more.
{¶ 48} Wesson presented hundreds of pages of his prison records in support of these
grounds for relief. These records show that Wesson spent many years of his adult life
in prison. They also demonstrate that he had his share of problems while
incarcerated.
{¶ 49} Wesson has used these records, and the report of a postconviction expert
witness, Dr. Clemons Bartollas, to argue that his prison record shows that he adapted
well to incarceration. That conclusion is debatable, however. Dr. Bartollas concluded
that “in the structured environment of a prison [Wesson] does very well.” Dr.
67
Bartollas minimized the number of problems Wesson had while he was in prison,
concluding that he “is not a threat to anyone in prison * * *.”
{¶ 50} Wesson's prison conduct problems included a number of disciplinary
infractions for failing to report to work or not obeying an order. He also referred to
a corrections officer by an offensive name. His infractions were not limited to verbal
or conduct offenses. Wesson also had several violent confrontations with other
inmates. Early in his tenure in prison, Wesson stabbed an inmate with a pair of
scissors. He was involved in other fights over the course of the 20 years he spent as
an inmate. Dr. Bartollas accepted Wesson's belief that these fights arose “out of the
on-going tensions of prison life.” For example, one of the fights started after an
inmate made fun of Wesson's stutter.
{¶ 51} Missing from Dr. Bartollas' report is any explanation of how the tensions of
prison life would change for Wesson if he were to serve a life sentence. Wesson
would still have the same pressures that caused other fights. His stutter would
continue to be a source of frustration for him, and there is no dispute that it was, at
least in part, the cause of one fight. Dr. Bartollas specifically noted that “Wesson is
small and stutters, and that this would make his survival in prison populations
difficult.”
{¶ 52} Wesson also argued that trial counsel failed to show that he was a positive
force in the prison during the 20 years he was incarcerated. Based on an interview
with another inmate, Corbitt Norman, Dr. Bartollas concluded that Wesson had been
a positive force in the prison and had helped other inmates. Mr. Norman was
Wesson's son-in-law.
{¶ 53} Norman said that Wesson was a positive force in his life in prison—Wesson
encouraged him to get an education and learn a trade. He also said that Wesson
helped other inmates and was a peacemaker in the prison. Norman “never saw
Wesson in a fight because he could talk his way out of anything.” On the other hand,
Norman also said that he saw Wesson intoxicated from “hooch,” an alcoholic drink
made in the prison.
{¶ 54} Finally, Dr. Bartollas noted that the prison records demonstrated that Wesson
received good work performance evaluations. He specifically pointed to two
evaluations that scored him high on a ten-point scale and noted that he “completes
his duties with a good attitude.” In another portion of his report, however, Dr.
Bartollas noted that some of Wesson's disciplinary infractions were for failing to
report to work. Another evaluation, not mentioned by Dr. Bartollas, scored Wesson
at “5” instead of the higher scores noted on other evaluations.
{¶ 55} There is other information contained in the hundreds of pages of prison
records that counsel could have decided they did not want to bring to the trial court's
68
attention. For example, an Adult Parole Authority report from 1999 includes
information about his child endangering conviction. Along with facts about the
offense, the report stated that Wesson failed a polygraph test because his responses
were deceptive to questions about whether he dropped a baby to the ground and
struck the baby in the head. That report included nine pages of prior convictions.
Another presentence report from a different case noted that Wesson's “prior
adjustment to supervision has been poor.”
{¶ 56} As we evaluate the evidence Wesson presented in support of these Grounds
for Relief, it is also important to consider Dr. Bartollas' report. The report is five
pages long; the first page is in an introduction, citing several of Dr. Bartollas' own
publications about prison violence, and the last page contains only the endnotes for
the report. The remaining three pages of the report offer a sketch of Wesson's life in
prison. By comparison, Dr. Bartollas' vita is 13 pages long. The vita details his
extensive and impressive publication record, but it also reveals that the bulk of his
work involves juvenile offenders. Wesson, on the other hand, is in his 50s, and
would confront a far different prison landscape than a juvenile offender.
{¶ 57} With respect to his first and second grounds for relief, Wesson has argued that
he was denied the effective assistance of counsel because “there is no indication that
trial counsel had a strategic reason for not utilizing Wesson's prison records.” But
Wesson has not presented any evidence that counsel did not consider and use his
prison records. In fact, Dr. Smalldon testified that he “reviewed an extensive
collection of records from the Ohio Department of Rehabilitation and Corrections.”
The trial court noted that it gave some weight in mitigation to Wesson's lack of bad
conduct in prison, even though it also recognized that his previous incarcerations
included fighting and refusing orders. The trial court apparently did not hold
Wesson's bad conduct against him, and actually gave him some credit in mitigation.
Although Wesson acknowledged he “was not perfect in prison,” he faults his counsel
for not offering his prison records, and the testimony of an expert like Dr. Bartollas,
to explain that Wesson could exist peacefully in prison with a life sentence.
{¶ 58} Dr. Bartollas' report, however, can be read to suggest that the same things that
caused Wesson to have problems in prison—his size and stuttering—would continue
to cause problems in future incarceration. Far from demonstrating ineffective
assistance of counsel, the record and evidence Wesson presented with his petition
shows that trial counsel managed to present positive mitigation evidence based on
Wesson's prior incarceration even though the trial court recognized that Wesson had
problems as a prisoner, including some that may have been more serious than the
trial court realized. By not focusing on the prison records, trial counsel also did not
bring attention to other damaging information that the trial court may have otherwise
reviewed.
69
{¶ 59} Wesson has not demonstrated that he was denied the effective assistance of
counsel as it relates to the first and second grounds for relief and, accordingly, the
trial court did not err in denying relief without a hearing.
Wesson, 2012 WL 4480109, at *7-10.
Wesson argues that this decision is an unreasonable application of Strickland under §
2254(d)(1), and an unreasonable determination of the facts under § 2254(d)(2). He challenges
the state court’s finding that he had not “presented any evidence that counsel did not consider
and use his prison records.” Wesson, 2012 WL 4480109, at *10. Wesson asserts that it is
evident that counsel did not “use” his prison records because Dr. Smalldon did not testify about
them and cite to information contained in them to explain that Wesson had behaved well in the
structured environment of prison. (Doc. 46 at 110-12.)
As Respondent argues, however, the state court reasonably determined that counsel had
“consider[ed] and use[d]” the records, since Dr. Smalldon testified that he reviewed “an
extensive collection of records from the Ohio Department of Rehabilitation and Correction” and
offered some positive mitigating evidence about Wesson’s incarceration. Wesson, 2012 WL
4480109, at *10. In fact, the court noted, the trial court ultimately accorded some weight in
mitigation to Wesson’s cooperative conduct in jail and the absence of any evidence of bad
conduct in prison. Id. At the same time, however, the court reasonably concluded, after a
careful and thorough examination of the prison records and the post-conviction expert’s report,
that counsel could have decided not to focus on this evidence because it would have drawn
attention to damaging information contained in the records. See Campbell v. Bradshaw, 674
F.3d 578, 592 (6th Cir. 2012) (“[M]itigating value must be weighed against the potential harm its
introduction might have done.”). The court observed that Wesson’s prison records contained
70
nine pages of prior convictions, including a child endangering conviction, and information about
Wesson’s significant problems in prison, including several disciplinary infractions and violent
fights with inmates. Wesson, 2012 WL 4480109, at *9.
Accordingly, the state appellate court’s decision that Wesson’s counsel did not provide
ineffective assistance in failing to present his prison records or a prison expert as mitigating
evidence was not contrary to, or an unreasonable application of, Strickland, and was not based
on an unreasonable determination of the facts in light of the evidence presented.
b.
lay witnesses who knew Wesson throughout his life
Wesson further claims that counsel should have presented at the mitigation phase of trial
the following lay witnesses, who could have testified about Wesson’s “upbringing, family and
life”: Wesson’s cousins Herb Wesson and Deborah Wells; Wesson’s former employer, Edgar
Lee; Wesson’s son-in-law and former fellow inmate, Corbitt Norman; Wesson’s maternal second
cousin, Sharon Clark; and Wesson’s paternal cousins, Randall Wesson and Stephen Wesson.
(Doc. 46 at 122.)
Wesson raised ineffective-assistance claims relating to Herb Wesson, Edgar Lee,
Deborah Wells, and Corbitt Norman in his first state post-conviction petition. The last state
court to review the claim, the court of appeals, addressed the merits of the claims, reasoning:
{¶ 64} In these four grounds for relief, Wesson complained that trial counsel were
ineffective for failing to present evidence of Wayne Wesson's criminal records and
to call three witnesses: his cousin Herb Wesson, his past-employer Edgar Lee, and
his cousin Deborah Wells. According to Wesson, trial counsel should have presented
this evidence to show a clearer picture of his background.
{¶ 65} To put this argument in context, it is important to first review the evidence
that trial counsel presented through Wesson's sister, Yvette Wesson. Ms. Wesson
was born two years before Wesson. She was born in Cleveland Ohio, Wesson was
born two years later in Detroit, Michigan, and their younger brother, Wayne Wesson,
71
was born in Cleveland three years after that. Their parents, Barbara Wesson and
Hersie Wesson, Sr., moved from Cleveland to Detroit, and back to Cleveland,
because of job changes. During these years, Mr. and Mrs. Wesson drank excessive
amounts of alcohol, including when Mrs. Wesson was pregnant with the children.
Ms. Wesson believed that both of her parents were alcoholics.
{¶ 66} Ms. Wesson told several tragic stories about their childhood. For example,
while living in Detroit, just a few months after Wesson was born, Mrs. Wesson and
her mother, who was visiting from Cleveland, wanted to go out to a club. Ms.
Wesson was taking care of Wesson during this time because of the alcoholism in the
family. Ms. Wesson's grandmother said they did not need to get a babysitter and,
instead, she poured gin in Wesson's bottle and gave it to him to drink. She also gave
Ms. Wesson a bottle of beer to drink. Ms. Wesson's mother and grandmother then
gave the children pillows and blankets, locked them in a closet, and left for the clubs.
Ms. Wesson and Wesson sat in the closet while he cried. Wesson eventually drank
the bottle and she feared that he had died.
{¶ 67} When Wesson was about a year old, he suffered a serious injury. A relative,
who was drunk at the time, was carrying him while walking up stairs. She slipped
and they both fell all the way to the bottom of the stairs. Ms. Wesson, who was also
knocked down, recalled that Wesson was unconscious and his head was cracked
open and bloody. He was not taken to the hospital.
{¶ 68} When the family returned to Cleveland, Mr. Wesson was bedridden because
of a back injury. Mrs. Wesson worked two jobs and was rarely home to supervise the
children. And both parents continued to drink alcohol during this time, perhaps even
more than before.
{¶ 69} Mr. Wesson was an abusive father, especially when he was drunk, which was
most of the time. He would beat the kids if they came home late from school or if he
did not approve of their appearance. He would hit them “with razor straps, slats from
underneath the bed to hold the mattress up, electric cords, belts, switches with knots
tied in them. I guess whatever was available.”
{¶ 70} One of the things that particularly upset Mr. Wesson was Wesson's stutter.
Mr. Wesson would tell Wesson that he was not his child and beat him. Mr. Wesson's
beatings would happen at least once a day. After some time, the family's home
caught fire and was completely destroyed. The family moved in with Mr. Wesson's
mother in Cleveland. After several months, Wesson moved to live with a cousin and
Ms. Wesson moved to live with a different cousin. Later, Mr. Wesson moved to
Tennessee, Mrs. Wesson began living with a man named Mr. Marino, and the kids
moved back to live with their mother.
72
{¶ 71} Mr. Marino also drank, although not as much, and was violent. Mrs. Wesson
and Mr. Marino argued in front of the children. In one incident, Mr. Marino threw
Mrs. Wesson in a bathtub, beat her, and threw glasses at her. Wesson and Ms.
Wesson tried to fight him off. The violence continued for some time and Mrs.
Wesson suffered numerous injuries, including several miscarriages, as a result of the
beatings.
{¶ 72} As Ms. Wesson grew older, she also grew more defiant. She finally put her
foot down and told her father to stop beating her brothers. Mr. Wesson focused his
beating on her instead, but still continued to hit Wesson.
{¶ 73} Eventually the family moved to Akron to live with Mrs. Wesson's mother,
Mrs. Williams. Mrs. Williams ran a restaurant. She was also an alcoholic and
physically abusive toward Wesson. Mrs. Williams' brother, Eugene, intervened and
protected the kids from the abuse. Ms. Wesson moved to Cleveland when she was
about 14 years old. Wesson and his brother remained in Akron and, thanks to
Eugene, the situation got better for them.
{¶ 74} Wesson had his share of other injuries, starting with the fall down the steps
when he was about a year old. When he was about 15 years old, he was robbed. He
was badly injured—he was beaten and cut in several places, including the back of
his head. He also had an argument with his younger brother that escalated until
Wayne Wesson hit Wesson over the head with a large glass bowl that Ms. Wesson
guessed weighed about 40 pounds.
{¶ 75} When Ms. Wesson was about 18, she moved to California. She fought to have
Wesson move to California and, when he was about 18, he also moved to live with
her. Within a day, however, Wesson was homesick and he returned to Ohio to live
with his mother.
{¶ 76} Ms. Wesson provided this detailed testimony about the formative years she
spent with her brothers. The trial court found her to be credible, and, as noted above,
the trial court's findings of fact were supported by competent and credible evidence.
Her testimony painted a picture of a young life filled with alcohol, violence, poverty,
and chaos. “Chaos” was also a word Dr. Smalldon used to describe Wesson's life.
{¶ 77} With that background, we now consider the other evidence and witnesses
Wesson now claims should have been presented at his mitigation hearing.
***
Herb Wesson's Testimony
73
{¶ 82} Wesson argued that trial counsel were ineffective for failing to call Herb
Wesson to testify at his trial. Herb Wesson was a cousin of the Wesson siblings. The
trial court concluded that the cousin's testimony would not have added anything to
the testimony of Wesson's sister.
{¶ 83} Wesson asserted that “[a] failure to provide a sentencer with additional
mitigation is not a reasonable strategic decision.” This position is contrary to the
Supreme Court's conclusion that trial “counsel's decision not to call additional family
members as mitigation witnesses was a ‘tactical choice’ and did not result in
ineffective assistance of counsel.” Hand, 2006–Ohio–18, at ¶ 241; see, also, Elmore,
111 Ohio St.3d 515, 2006–Ohio–6207, at ¶ 116. The United States Supreme Court
has also rejected the “ ‘more-evidence-is-better’ approach” where offering additional
evidence could have resulted in the sentencer hearing other evidence that trial
counsel, for tactical reasons, did not want the jury to hear. Wong at 389.
{¶ 84} As for the cousin's testimony, Wesson argued that, “[a]s someone outside the
family, Herb Wesson would have provided the panel with a different perspective of
Wesson's upbringing.” Specifically, the cousin could have testified that Wesson lived
in a chaotic home where he learned bad behaviors. According to Wesson, this would
have shown that the harmful home environment was apparent even to an outsider.
{¶ 85} The cousin's testimony, recounting observations from a distance, would not
have been superior to the testimony given by Ms. Wesson and the history recounted
by Dr. Smalldon. The trial court found Ms. Wesson to be a credible witness. She
testified to a horrible home life based on her personal experiences. Trial counsel
were not ineffective for not buttressing this testimony with evidence from a cousin
who had some recollections of Wesson's bad home life. See Hand at ¶ 241. This
evidence “would barely have altered the sentencing profile presented to the
sentencing judge[s].” Strickland, 466 U.S. at 700. Accordingly, Wesson has not
demonstrated that he was denied the effective assistance of counsel as it relates to his
sixth ground for relief.
Edgar Lee's Testimony
{¶ 86} Wesson argued that trial counsel were ineffective for failing to present the
testimony of Edgar Lee. Mr. Lee hired Wesson to do odd-jobs for him. According
to Mr. Lee's affidavit, Wesson worked for him for a few months in 2007. Mr. Lee
found Wesson to be a good, reliable worker.
{¶ 87} Wesson asserted that Mr. Lee's testimony was significant. According to
Wesson, Mr. Lee's testimony about Wesson's part-time work for him over a few
months would have been substantial enough to allow the trial court to create a
positive image of Wesson as an adult. But the trial court heard this evidence through
Dr. Smalldon. He testified that Wesson “had lost the job that he had for a number of
74
months in 2007, which for him was a significant source of self-worth.” Dr. Smalldon
also told the trial court that Wesson was frustrated when he lost the ability to
contribute to paying bills.
{¶ 88} The trial court concluded that it was reasonable to assume that trial counsel
did not consider a temporary, part-time, employer's testimony to be relevant or
compelling. Counsels' decision whether to call a witness “falls within the rubric of
trial strategy * * *.” State v. Were, 118 Ohio St.3d 448, 2008–Ohio–2762, ¶ 222.
Wesson's attorneys were “entitled to be selective” when deciding which witnesses
to call and, again, this evidence would not have altered the sentencing profile. Id.
After reviewing the evidence, and Wesson's argument, we agree with the trial court's
conclusion. Wesson has not demonstrated that he was denied the effective assistance
of counsel as it relates to his seventh ground for relief.
Deborah Wells' testimony
{¶ 89} Wesson argued that trial counsel should have called Deborah Wells to testify.
Ms. Wells is Wesson's cousin. Like Herb Wesson, discussed above, Ms. Wells'
testimony would not have added anything to the testimony of Wesson's sister.
Postconviction counsel have characterized Ms. Wesson's testimony as lacking
credibility and self-serving. Regardless of how postconviction counsel viewed her
testimony, the trial court found her to be credible. Ms. Wells' testimony would have
been less detailed, but otherwise cumulative, to Ms. Wesson's testimony. Trial
counsel could have reasonably decided to focus on Ms. Wesson's testimony that
described a life shattered by alcohol, physical, and mental abuse, rather than diluting
Wesson's history with the testimony of a cousin with whom Wesson sometimes
stayed, but who did not have constant contact or interaction with him. See, e.g., Were
at 222.
{¶ 90} We conclude here, as we did with Wesson's other cousin, that trial counsel
were not ineffective because they did not present her testimony in mitigation.
Accordingly, Wesson has not demonstrated that he was denied the effective
assistance of counsel as it relates to his twelfth ground for relief.
{¶ 91} Wesson has not demonstrated that he was denied the effective assistance of
counsel as alleged in his fifth, sixth, seventh, and twelfth grounds for relief.
Accordingly, the trial court did not abuse its discretion in dismissing the petition
without a hearing.
***
[Corbitt Norman’s testimony]
75
{¶ 60} Along the same lines, Wesson's third ground for relief specifically challenged
trial counsel's failure to call Norman, mentioned above, to testify at the mitigation
hearing. Wesson argues that Norman could have testified about Wesson's
adaptability to prison.
{¶ 61} The facts in Norman's affidavit would not have added substantially to the
evidence presented to the trial court. It appears that Wesson sought out Norman
because Norman was his son-in-law. As noted above, Wesson encouraged him to get
an education. Norman also swore he never saw Wesson in a fight because he “could
talk his way out of anything.” This assertion is countered by the undisputed evidence
that Wesson was involved in fights in prison and, because of the stuttering that
embarrassed him, it appears contradictory that he could talk his way out of anything.
Norman's affidavit also contains damaging evidence that Wesson was drunk while
in prison after drinking hooch, a fact the sentencing panel apparently did not have
before it.
{¶ 62} Norman's affidavit offers some positive, and some negative, evidence about
Wesson's adaptability to prison. The key point, however, is that the trial court found
some evidence in mitigation because of Wesson's conduct in prison. There is nothing
in Norman's affidavit that would have tilted the scale any further in Wesson's favor.
Wesson has not demonstrated that he was denied the effective assistance of counsel
as it relates to the third ground for relief.
Wesson, 2012 WL 4480109, at *10-15.
Wesson does not provide any argument that the state court’s decision on these claims
satisfies AEDPA’s § 2254(d). And even if he did, they would fail. The state court reasonably
found that Wesson’s trial counsel conducted an adequate investigation into Wesson’s
background and childhood, and presented credible and powerful testimony about Wesson’s past
through his sister and Dr. Smalldon. The court thoroughly summarized his sister’s “detailed
testimony” that “painted a picture of a young life filled with alcohol, violence, poverty, and
chaos.” Wesson, 2012 WL 4480109, at *13. And it emphasized that “the trial court found her to
be credible,” and its “findings of fact were supported by competent and credible evidence.” Id.
As noted above, “[w]hich witnesses, if any, to call, and when to call them, is the epitome of a
76
strategic decision, and it is one that [courts] will seldom, if ever, second guess.” Waters, 46 F.3d
at 1512.
Moreover, the state court reasonably concluded that the witnesses Wesson now claims
counsel should have presented at his mitigation hearing “would not have added anything to the
testimony of Wesson’s sister.” Id. at *14. Wesson, therefore, cannot show that he was
prejudiced by counsel’s failure to present the additional witnesses, as their testimony would have
been cumulative to what was presented at trial. See, e.g., Eley v. Bagley, 604 F.3d 958, 968 (6th
Cir. 2010) (“[T]he failure to present additional mitigating evidence that is merely cumulative of
that already presented does not rise to the level of a constitutional violation.”) (quotation marks
and citation omitted).
Wesson asserts that the testimony of these witnesses would “differ markedly” from the
testimony presented at trial because they would have provided “antidotal information regarding
Wesson’s upbringing that was not presented through Dr. Smalldon or Yvette Wesson’s
testimony at the mitigation hearing.” (Doc. 46 at 123.) But that is not enough to establish that
Wesson was prejudiced by its omission. The Court has reviewed the additional testimony
Wesson now promotes – including that of Sharon Clarke, and Randall and Stephen Wesson,
upon which Wesson based claims in his second post-conviction petition – and finds it provides
additional and varied information about Wesson’s alcoholic parents, chaotic family life,
stuttering condition, physical injuries, and low intellectual abilities. But this testimony would
not differ materially enough from what was presented at trial to establish that Wesson was
prejudiced by counsel’s failure to present it. See , e.g., Hill v. Mitchell, 400 F.3d 308, 332 (6th
Cir. 2005) (finding the petitioner “present[ed] additional detail about his family background as
77
well as a number of positive statements about his character and how he loved his mother and
would not have killed her but for the influence of cocaine[, b]ut nothing in this new testimony
differs markedly from the testimony and evidence the jury in fact considered and above all does
not differ in such a material way as to establish that [the petitioner] was prejudiced by the
omission of this testimony”); Johnson v. Bell, 344 F.3d 567, 574 (6th Cir. 2003) (finding no
prejudice in failure to present testimony by defendant’s family members, even though it would
have humanized him by showing he had been a good son, brother and parent, because the
evidence fell short of the quantum of evidence required to show prejudice).
The state appellate court’s decision rejecting this ineffective-assistance claim on initial
post-conviction review, therefore, neither contravened nor unreasonably applied Strickland, and
this claim as presented in Wesson’s second post-conviction petition lacks merit.
c.
Wayne Wesson’s criminal record
Wesson also complains that his trial attorneys failed to present the criminal records of his
brother Wayne, as they resembled his own, and would have confirmed “that growing up in the
Wesson household had a profound effect on the Wesson children, and it was not just Hersie
Wesson who struggled.” (Doc. 46 at 113.)
The state court of appeals addressed this claim in Wesson’s first post-conviction
proceedings, stating:
{¶ 78} Wayne Wesson is Wesson's younger brother. Wesson, his sister, and brother,
lived through the same difficult conditions as children. Ms. Wesson has no criminal
record, as noted by the State during the trial. Wesson, as outlined above, has an
extensive criminal record. He has argued that evidence of his brother's criminal
78
record should have been introduced to show that, unlike his sister, his brother does
have a criminal record. According to Wesson, this would have weakened the State's
argument that Ms. Wesson lived through the same events as Wesson but she does not
have a criminal record.
{¶ 79} At the trial, the State pointed out that many people grew up in abusive homes.
It pointed to Ms. Wesson as an example of someone who lived through that
experience without turning to a life of crime. Wesson argued in his petition that trial
counsel were ineffective for failing to present his brother's criminal record to counter
his sister's lack of a criminal record. Among the many exhibits he filed with his
petition, he did not include an affidavit from his brother. The petition relied on
print-outs of numerous on-line criminal dockets showing that Wesson's brother had
a lengthy criminal record. The trial court concluded that evidence of Wayne
Wesson's criminal record would not have made a difference in its decision because
both of Wesson's siblings lived through similar abusive childhoods, but only Wesson
had killed someone. Although Wesson criticizes this reasoning, the trial court was
correct. See Wong v. Belmontes, 558 U.S. 15, 130 S.Ct. 383, 386 (in evaluating
defendant's claim, it is necessary to consider all of the relevant evidence the trial
court would have had before it if trial counsel had sought to introduce it.). The
records would have highlighted that three people lived through similar abusive
childhoods and that only Wesson killed someone.
{¶ 80} The petition for postconviction relief did not include an affidavit from Wayne
Wesson to explain anything about his past or his criminal record. There was nothing
to certify the on-line printouts as accurate representations of his criminal record or
to demonstrate that the defendant was in fact Wesson's brother. It is mere speculation
to claim that introducing these records would have had any impact on the trial court.
See, e.g., State v. Elmore, 111 Ohio St.3d 515, 2006–Ohio–6207, ¶ 121.
{¶ 81} Wesson has not demonstrated that he was denied the effective assistance of
counsel as it relates to his fifth ground for relief.
Wesson, 2012 WL 4480109, at *13-14.
Wesson argues that the state court unreasonably applied Strickland in concluding that
counsel did not perform deficiently in deciding not to present his brother’s criminal records
because they would have highlighted that the three Wesson siblings lived through similar
circumstances but only Wesson killed someone. (Doc. 46 at 113.) He counters that his “exact
circumstances” were different, and “his limitations left him unable to overcome the effects of his
79
childhood.” (Id.) But that argument contradicts Wesson’s very premise for claiming his counsel
should have introduced this evidence – to demonstrate that, unlike his sister, the siblings’ shared
childhood also had an adverse impact on his brother. The state court reasonably concluded
Wesson had not shown that this unauthenticated information would have impacted the
sentencing decision of the trial court, and its decision neither contravened nor unreasonably
applied Strickland.
d.
Wesson’s efforts to redeem himself
Wesson also faults his trial counsel for failing to investigate and present mitigating
evidence concerning his “efforts to redeem himself,” as reported in records from a mental health
agency at which he received care from September 2007 to January 2008. (Doc. 46 at 131-32.)
He raised this claim in his second post-conviction petition, which was rejected on procedural
grounds. This Court’s review, therefore, is de novo.
Wesson argues that after he was released from prison in the fall of 2007, he “tried to
become a productive member of society.” (Id. at 131.) He cites the report of his post-conviction
expert, Dennis Eshbaugh, to demonstrate that during this time, he first attended counseling
sessions regularly and “actively participated” in therapy; was successful in abstaining from
alcohol for “a period of time” even though he began to experience depression, anxiety, crying
spells, and poor sleep; but relapsed in January 2008, after having trouble finding employment.
(Id. (citing Doc. 12-14 at 55 (Eshbaugh Rpt.).) Wesson last attended therapy in mid-January
2008, a little more than a month before the crime. (Id.)
Respondent contends that Wesson’s trial counsel had these records because Dr. Smalldon
referenced them in his trial testimony. (Doc. 43 at 63 (citing Doc. 13-26 (Trial Tr.) at 90.) And
80
counsel could well have decided not to emphasize Wesson’s “redemptive efforts” efforts to seek
psychological therapy and achieve sobriety, Respondent maintains, “in view of their obvious
failure.” (Id.) The Court agrees. As noted above, “[w]hen counsel focuses on some issues to
the exclusion of others, there is a strong presumption that he did so for tactical reasons rather
than through sheer neglect.” Yarborough, 540 U.S. at 8.
This sub-claim, too, lacks merit.
e.
the link between Wesson’s limitations and crimes
Wesson further claims that trial counsel were ineffective for not presenting expert
testimony about the link between his limitations and the crime. (Doc 46 at 59-61.) Wesson
asserted this claim in his first post-conviction petition, and it was adjudicated on its merits. The
last state court to review the claim, the state appellate court, reasoned:
{¶ 92} Wesson argued that trial counsel were ineffective because they did not
“ensure that the mitigation expert presented a complete picture of Wesson's mental
and emotional problems and development.” He further contended that Dr. Smalldon
“failed to establish a nexus between Wesson's various mental health issues and the
crime.” He criticized Dr. Smalldon's testimony because Dr. Smalldon “damaged his
credibility with the sentencing panel when he downplayed Wesson's diagnosis of
Antisocial Personality Disorder.” Wesson tied these problems to his counsel by
arguing that they were ineffective because they did not adequately research and
screen their expert. Wesson complained that his counsel could not “merely hire a
mitigation expert and then hope that the expert performs adequately.” After our
review of the record, we conclude that Wesson failed to present any evidence to
show that his trial counsel were ineffective.
{¶ 93} Dr. Smalldon testified at length at the mitigation hearing. His testimony
covered almost 100 pages of the transcript. He testified that he began his consultation
on this case in April 2008, almost a year before he testified. He met with Wesson
three times for a total of about 15 hours. He also worked in conjunction with a
mitigation specialist hired by trial counsel. The mitigation specialist gathered
background information about Wesson and shared it with Dr. Smalldon.
{¶ 94} Dr. Smalldon recounted all of the documents he reviewed, including Wesson's
extensive collection of records from the Ohio Department of Rehabilitation and
81
Corrections, the facility where Wesson was held when he was a juvenile, the Akron
City Schools, the Adult Parole Authority, and the mental health agency where he was
a client before he murdered Mr. Varhola. He and the mitigation specialist also met
with trial counsel and interviewed witnesses over the months he spent preparing for
trial and a possible mitigation hearing.
{¶ 95} Wesson's argument focused on one narrow criticism: that trial counsel did not
adequately prepare Dr. Smalldon to testify about Wesson's antisocial personality
disorder. He ignored the remainder of Dr. Smalldon's testimony. For example, Dr.
Smalldon testified about Wesson's positive interactions with the deputies in the jail
during his visits. He testified at length about Wesson's prenatal exposure to alcohol
and how that affected Wesson's development. He explained the difference between
fetal alcohol syndrome and fetal alcohol effect and highlighted the deficits that stem
from fetal alcohol effect, including an inability to assess consequences of behavior
and inability to respond appropriately to subtle social and personal cues. He noted
three other findings for people suffering from fetal alcohol effect—stuttering,
impulsivity, and low frustration tolerance. Dr. Smalldon said that all of these things
were consistent with what he learned about Wesson.
{¶ 96} Dr. Smalldon testified about Wesson's life as a child and young adult. He
focused on the physical abuse Wesson observed and suffered. Dr. Smalldon said that
children like Wesson, who have witnessed violence between significant people in
their lives, are at a greater risk for engaging in violent behavior as adults.
{¶ 97} Dr. Smalldon also explained what he learned about Wesson's numerous head
injuries. He described four different head injuries that resulted in Wesson losing
consciousness. He explained that these are significant events because head injuries
frequently result in behavioral problems, including impulsivity, poor self-regulation,
and poor judgment. Dr. Smalldon was not able to precisely determine the extent of
the injuries Wesson suffered because Wesson refused to participate in full
neuropsychological testing.
{¶ 98} Dr. Smalldon did administer a number of psychological tests. The results
showed that he was functioning on an elementary school level and that he had a low
IQ. Although Dr. Smalldon was not able to conduct a complete battery of
neuropsychological tests, the results from the tests he administered were consistent
with someone who suffered from a brain injury.
{¶ 99} Dr. Smalldon reviewed more of Wesson's life history, including his alcohol
problems and his difficult relationships with many different women. He told the trial
court that Wesson's brief employment in 2007, the job Edgar Lee would have
testified about, was a source of self-worth to Wesson.
82
{¶ 100} Based on all of the information Dr. Smalldon collected, he presented the trial
court with a diagnosis. Dr. Smalldon testified to Wesson's multi-part diagnosis,
which included (1) depressive disorder, not otherwise specified, (2) borderline
intellectual functioning, (3) alcohol dependence, and (4) a personality disorder not
otherwise specified with passive aggressive, narcissistic, and anti-social features. Dr.
Smalldon explained each of these in some detail, including the personality disorder
that is the basis of this ground for relief.
{¶ 101} Wesson complained that Dr. Smalldon damaged his own credibility, and
counsel failed to adequately prepare him, when Dr. Smalldon testified that
“anti-social, it just refers to a long pattern of rule-breaking behavior.” There is no
question that Dr. Smalldon made that statement, but it came at the end of six pages
of discussion about Wesson's anti-social personality disorder, which he characterized
as having “passive-aggressive, narcissistic, and antisocial features.” At the beginning
of his testimony, Dr. Smalldon said that a personality disorder “refers to a very
deep-seated enduring pattern of behavior that has resulted in either a very significant
subjective distress or caused the individual major problems across the different
dimensions of their life, relational, vocational, so on.” He continued that “it refers
to a very deeply-rooted personality dysfunction by definition [with] roots that go
back into the person's developmental history.”
{¶ 102} Wesson presented a report by Dr. Dennis M. Eshbaugh in support of this
ground for relief. Dr. Eshbaugh's Mitigation Review report set out an overview of
what happened at trial, what Dr. Eshbaugh learned from a three-hour meeting with
Wesson after he was sentenced, and an evaluation of Dr. Smalldon's performance at
the mitigation hearing. Dr. Eshbaugh complimented Dr. Smalldon's professional
experience and concluded that it was clear Dr. Smalldon “was very familiar with Mr.
Wesson's history and mental status. He was adept in highlighting the difficulties Mr.
Wesson has had throughout his life.”
{¶ 103} Dr. Eshbaugh wrote in his report that he believed Wesson's history clearly
indicated antisocial personality disorder and that it should have been presented
directly. He also thought that Dr. Smalldon focused too much on Wesson's brain
injuries without sufficient evidence to prove that he had ever actually suffered an
injury. Dr. Eshbaugh spent several pages in his report explaining why he thought it
would have been important to focus more on the antisocial personality diagnosis. He
did not disagree with Dr. Smalldon's other diagnoses.
{¶ 104} Dr. Eshbaugh concluded that Wesson made a choice in causing the death of
Mr. Varhola and assaulting Mrs. Varhola, but he did not have a choice in the
circumstances that led to his behavior in the offenses. According to Dr. Eshbaugh,
Wesson's antisocial personality disorder, alcoholism, violence, and limited
intellectual capacity were dictated by his family, both genetically and
environmentally. His stressors at the time he committed the murder were beyond his
83
ability to manage. At the mitigation hearing, Dr. Smalldon reached a similar
conclusion. He concluded that Wesson could not act appropriately because of his
impulsivity, inability to think about consequences, personality-related factors,
limited intellectual ability, and alcoholism.
{¶ 105} Dr. Smalldon and Dr. Eshbaugh reached the same conclusions. Dr.
Eshbaugh agreed with Dr. Smalldon's diagnoses. Dr. Eshbaugh described the
mitigation evidence as “quite typical.” Dr. Eshbaugh had one advantage that Dr.
Smalldon did not, however. Dr. Eshbaugh had the benefit of hindsight to see that the
trial court was not convinced that evidence of Wesson's brain injuries was substantial
enough to mitigate his sentence.
{¶ 106} Dr. Eshbaugh wrote in his report that he would have highlighted the
antisocial personality diagnosis and what that meant for Wesson's conduct. While
that may have been one approach, it was certainly not the only approach. In fact, at
least one court has characterized evidence of antisocial personality disorder as “not
‘good’ mitigation” evidence. (Internal quotations omitted) Morton, 684 F.3d at 1168.
The defendant in Morton argued that his attorneys were ineffective because they
called a doctor to testify about his antisocial personality disorder, which he described
as “no more mitigating than being ‘evil’ is mitigating.” Id. at 1167–68. The Eleventh
Circuit disagreed, noting that his attorneys chose a mitigation strategy that many
lawyers argue is effective. Id. at 1168.
{¶ 107} The Ohio Supreme Court has also considered mitigation evidence about
antisocial personality disorder. See, e .g., State v. Campbell, 95 Ohio St.3d 48, 57
(2002). In Campbell, another case in which Dr. Smalldon testified, the Supreme
Court considered Dr. Smalldon's testimony about antisocial personality disorder. Dr.
Smalldon testified in that case that many people with this disorder “function in
society and do not commit crimes,” an argument similar to the one the prosecutor
made in this case. Id. The Ohio Supreme Court concluded that the defendant's
“antisocial personality disorder deserves little weight [in mitigation].” Id. See, e.g.,
State v. Jackson, 107 Ohio St.3d 53, 2005–Ohio–5981, ¶ 175 (Court gave little
weight to this disorder and cited other cases reaching the same result).
{¶ 108} Dr. Smalldon and Dr. Eshbaugh reached the same diagnoses and
conclusions. Trial counsel opted to present evidence of Wesson's four significant
brain injuries and evidence of his antisocial personality disorder. Postconviction
counsel have argued that trial counsel should have focused more on antisocial
personality disorder and Dr. Eshbaugh wrote that he would have minimized his
reliance on Wesson's undocumented brain injuries. There may be reasonable
justifications for both approaches, but several decisions have concluded that
evidence of antisocial personality disorder is of limited value in mitigation. In
addition, hindsight cannot affect the evaluation of the performance of trial counsel.
Just because trial counsels' approach turned out to be unsuccessful does not mean
84
that they provided ineffective assistance of counsel. Trial counsels' approach
presented the trial court with valuable mitigation evidence without focusing on the
antisocial personality disorder evidence. Because the Ohio Supreme Court has
routinely concluded that this evidence deserves little weight in mitigation, trial
counsels' strategy did not deprive Wesson of the effective assistance of counsel.
{¶ 109} Wesson has not demonstrated that he was denied the effective assistance of
counsel as alleged in his fourth ground for relief. Accordingly, the trial court did not
abuse its discretion in dismissing the petition without a hearing.
Wesson, 2012 WL 4480109, at *15-19.
Wesson argues that the state court made an unreasonable determination of the facts under
AEDPA’s § 2254(d)(2) when it found that Dr. Smalldon and Dr. Eshbaugh “reached the same
diagnoses and conclusions.” (Doc. 46 at 118 (citing Wesson, 2012 WL 4480109, at *18).)
He does not allege the court mischaracterized either experts’ conclusions. Rather, he contends
the court “failed to note how the doctors’ testimony differed.” (Id.) Where Dr. Eshbaugh
“delved into detail regarding the ways that Wesson’s defects contributed to his involvement and
perception of the crime,” Wesson asserts, Dr. Smalldon “gave no further explanation of how
[Wesson’s limitations] specifically contributed to Wesson’s involvement in the instant offense . .
. [or] would have affected Wesson’s perception of any potential threat against him.” (Id.)
A review of Dr. Smalldon’s testimony, however, shows that Dr. Smalldon did, in fact,
describe how Wesson’s mental health problems led to his criminal conduct. He testified that
“[Wesson is] emotionally very reactive, he’s impulsive. He doesn’t anticipate or think about the
consequences of what he’s doing, particularly when alcohol is involved.” (Doc. 13-26 (Trial Tr.)
at 141.) He then explained the impact of those characteristics on Wesson’s behavior, including
reaction to perceived threats and criminal behavior, opining:
The personality characteristics that I mentioned make him very vulnerable to
overreacting to things that he perceives as slights or challenges to his very fragile
85
sense of personal competence, and in that sense I certainly think that all of those
factors, the limited intellectual ability, the role of alcohol, the underlying depression,
and the personality-related factors, can combine to compromise his ability to
conform his conduct to the requirements of the law.
(Id. at 141-42.) As the state court observed, Dr. Smalldon concluded that “Wesson could not act
appropriately because of his impulsivity, inability to think about consequences, personalityrelated factors, limited intellectual ability, and alcoholism.” Wesson, 2012 WL 4480109, at *18.
The fact that Dr. Eshbaugh emphasized certain points more or provided more detail that Wesson
now finds helpful mitigating evidence, does not render the state court’s finding that Dr.
Eshbaugh reached a similar conclusion to Dr. Smalldon unreasonable.
Moreover, as Respondent argues, counsel were not ineffective in retaining or preparing
an expert just because the petitioner, in hindsight, believes the expert could have testified in a
sightly different manner. The Sixth Circuit has explained,
To the extent that Petitioner’s argument can be framed as one impugning the
competency of the psychologists retained to assist trial counsel, Petitioner’s
argument has little merit. The Constitution does not require that an indigent criminal
defendant be able to retain the expert of his choosing, only that a competent expert
be made available.
Lundgren v. Mitchell, 440 F.3d 754, 772 (6th Cir. 2006) (citing Ake v. Oklahoma, 470 U.S. 68,
83 (1985)).
The state appellate court’s decision, therefore, was not based on an unreasonable
determination of fact in light of the evidence presented, and this claim fails.
f.
fetal alcohol spectrum disorder
Finally, Wesson complains that his trial counsel should have presented a mitigation
expert on fetal alcohol spectrum disorder (“FASD”). (Doc. 46 at 127-31.) He acknowledges
that Dr. Smalldon presented testimony on this topic. (Id. at 128.) But he argues that the expert
86
did not diagnose Wesson with FASD and “did not appl[y] and connect[] FASD to Wesson and
his crime.” (Id. at 129 (emphasis in original).)
Dr. Smalldon testified at length about FASD at Wesson’s trial. Early in his testimony, he
stated his opinion that FASD was a “prenatal risk factor[] that may have affected Hersie’s
development.” (Doc. 13-26 (Trial Tr.) at 95-96.) He explained that although Wesson’s mother
was deceased, family members had told him that she was a “serious alcoholic” and would have
exposed Wesson to alcohol during her pregnancy with him. (Id. at 96.) He described FASD and
testified that “[i]t’s well known that prenatal exposure to alcohol is the single greatest
contributor to mental retardation.” (Id. at 97.)
Dr. Smalldon further testified that he could not render a diagnosis of FASD because he
did not obtain sufficient information to do so, but “fe[lt] very confident that [Wesson] was
exposed to alcohol prenatally and it would be appropriate to describe the effects of that exposure
as fetal alcohol effect.” (Id.) He then provided a detailed analysis of the “kinds of effects that
[were] evident because of fetal alcohol effect.” (Id. at 97-98.) He explained that individuals
with fetal alcohol effect often exhibit the same neuro-cognitive, or intellectual, type of deficits as
those with “full” FASD. (Id. at 98.) Those deficits include: inability to assess consequences of
behavior; inability to respond appropriately to subtle social and personal cues; inadequate
initiative; poor expressive language skills and language comprehension; stuttering; impulsivity;
and low frustration tolerance. (Id. at 98-99.) He testified that these symptoms were “consistent
with [Wesson’s] history.” (Id. at 99.)
Dr. Smalldon later testified about the role of Wesson’s fetal alcohol effect in his mental
and emotional development, stating that it had
87
contribute[d] to the formation of personality dysfunction of the kind [he had]
diagnosed Mr. Wesson with because they add another risk factor that often plays a
major role in the person’s adaptation to his or her life circumstances.
Someone without those predisposing vulnerabilities, because of the early alcohol
exposure, might not respond to developmental stressors in the same way as someone
who did have that exposure would.
So, it can certainly contribute.
(Id. at 135.) Dr. Smalldon specified that he viewed fetal alcohol effect as “a risk factor that can
play a role in how the individual responds to developmental stressors, and how the individual
responds to some of those things in childhood are what we’re talking about when we talk about
how a personality disorder develops over time.” (Id. at 136.) He agreed that this condition also
may have been related to Wesson’s other diagnoses of limited intellectual functioning,
alcoholism, and depression. (Id.)
On cross-examination, Dr. Smalldon again emphasized that “individuals who are
diagnosed with fetal alcohol effect demonstrate about the same level of impairment as
individuals who are diagnosed with fetal alcohol syndrome.” (Id. at 160-61.)
Thus, Dr. Smalldon did not diagnose Wesson with FASD because he had insufficient
information to do so, but he did diagnose him with fetal alcohol effect, which he stressed caused
the same degree of impairment. He also made it clear that the fetal alcohol effect contributed to
the development of Wesson’s other mental health problems. Based on that record, Wesson
cannot demonstrate that his counsel’s failure to retain and present an expert on FASD so
prejudiced him that the result of the panel’s sentencing would have been different. This claim,
too, fails.
III.
Fourth Ground for Relief: Intellectual Disability
88
Wesson asserts in his fourth ground for relief that he is intellectually disabled and
therefore ineligible for execution under the Eighth Amendment pursuant to the United States
Supreme Court’s decision in Atkins v. Virginia, 536 U.S. 304 (2002).9 Respondent argues that
this claim is procedurally defaulted because Wesson first raised it in a second-in-time postconviction petition that the state courts denied as untimely and successive. (Doc. 43 at 66-69.)
Wesson concedes he defaulted his Atkins claim but argues that the default should be excused,
either for cause – namely, his trial and post-conviction counsel’s failure to raise the claim – or
because there will be a “fundamental miscarriage of justice” if the claim is not considered. (Doc.
46 at 119-22.) He requests an evidentiary hearing on the procedural issues. (Doc. 47.)
Respondent opposes that motion. (Doc. 48.)
A.
Atkins v. Virginia and the Definition of Intellectual Disability
In the 2002 decision Atkins v. Virginia, the Supreme Court held that in light of “our
evolving standards of decency,” executing an intellectually disabled offender violates the Eighth
Amendment’s ban on cruel and unusual punishments. Atkins, 536 U.S. at 321. The Court
recognized a national consensus that intellectually disabled persons are “categorically less
culpable than the average criminal.” Id. at 316. It explained,
9
The Court will use the term “intellectual disability” in place of “mental
retardation” in this opinion unless it appears in quoted text. The designation
intellectually disabled, or “ID,” is now widely used by the medical community, educators
and others, since the label mentally retarded has long carried a painful stigma. The terms
are synonymous. See American Association on Intellectual and Developmental
Disabilities, Intellectual Disability: Definition, Classification, and Systems of Support 12
(11th ed. 2010) (“[T]he term ID covers the same population of individuals who were
diagnosed previously with mental retardation.”); Hall v. Florida, 572 U.S. 701, 704-05
(2014).
89
Mentally retarded persons frequently know the difference between right and wrong
and are competent to stand trial. Because of their impairments, however, by
definition they have diminished capacities to understand and process information,
to communicate, to abstract from mistakes and learn from experience, to engage in
logical reasoning, to control impulses, and to understand the reactions of others.
There is no evidence that they are more likely to engage in criminal conduct than
others, but there is abundant evidence that they often act on impulse rather than
pursuant to a premeditated plan, and that in group settings they are followers rather
than leaders. Their deficiencies do not warrant an exemption from criminal sanctions,
but they do diminish their personal culpability.
Id. at 318.
The Atkins Court also found that intellectually disabled offenders are at “special risk of
wrongful execution.” Id. at 320. It pointed to the possibility of false confessions; the
defendant’s difficulty in persuasively showing mitigation, providing meaningful assistance to
counsel, and testifying; and his or her demeanor, which may create an unwarranted impression of
lack of remorse. Id. at 320-21. Given their impairments, the Court concluded, executing the
intellectually disabled would not “measurably advance the deterrent or the retributive purpose of
the death penalty.” Id. at 321.
The Court acknowledged in Atkins, however, that intellectual disability is difficult to
define. “To the extent there is serious disagreement about the execution of mentally retarded
offenders, it is in determining which offenders are in fact retarded,” the Court noted. Id. at 317.
“Not all people who claim to be mentally retarded will be so impaired as to fall within the range
of mentally retarded offenders about whom there is a national consensus.” Id. Consequently, as
it did in the context of mental competency, the Court entrusted the states with “‘the task of
developing appropriate ways to enforce the constitutional restriction upon [their] execution of
sentences.’” Id. (quoting Ford v. Wainwright, 477 U.S. 399, 416-17 (1986)).
90
The Court provided some guidance, however. It cited to the clinical definitions of
intellectual disability promulgated by the leading psychiatric medical associations, the American
Association on Mental Retardation (“AAMR”), now called the American Association on
Intellectual and Developmental Disabilities (“AAIDD”), and the American Psychiatric
Association (“APA”). Id. at 308 n.3 (citing AAMR, Mental Retardation: Definition,
Classification, and Systems of Supports 5 (9th ed. 1992) (hereinafter, “AAMR-9”) and APA,
Diagnostic and Statistical Manual of Mental Disorders 41-43 (4th ed. 2000) (hereinafter, “DSM4”)). Those criteria, it explained, “require not only subaverage intellectual functioning, but also
significant limitations in adaptive skills such as communication, self-care, and self-direction that
became manifest before age 18.” Id. at 318. Existing state statutory definitions of intellectual
disability, it observed, “are not identical, but generally conform to [those] clinical definitions . . .
.”10 Id. at 317 n.22.
Soon after Atkins was decided, the Supreme Court of Ohio established the “substantive
standards and procedural guidelines” for Eighth Amendment intellectual disability claims in
Ohio in State v. Lott, 97 Ohio St. 3d 303 (Ohio 2002). The court adhered to the clinical
definitions cited with approval in Atkins, holding that to prevail on an Atkins claim, the
defendant must prove that he or she: (1) suffers from “significantly subaverage intellectual
10
The AAIDD has cautioned, however, that “[t]he field of mental retardation is
currently in a state of flux regarding not just a fuller understanding of the condition of
mental retardation, but also the language and process used in naming, defining, and
classifying” the condition. AAMR, Mental Retardation: Definition, Classification, and
Systems of Supports xiii (10th ed. 2002) (hereinafter, “AAMR-10”). At the heart of this
evolving field is the very definition of intellectual disability, which has been revised nine
times since 1908. Id. at 20-23.
91
functioning,” (2) experienced “significant limitations in two or more adaptive skills, such as
communication, self-care, and self-direction,” and (3) manifested “onset before the age of 18.”
Id. at 305. The court noted, however, that “[w]hile IQ tests are one of the many factors that need
to be considered, they alone are not sufficient to make a final determination on this issue.” Id. It
therefore held that “there is a rebuttable presumption that a defendant is not mentally retarded if
his or her IQ is above 70.” Id.
In addition, the AAIDD and APA have updated their definitions of intellectual disability
since Atkins was decided. In 2002, the AAIDD revised the adaptive-skills criteria to require a
significant deficit in only one of three general categories: conceptual, social, and practical.
AAMR-10 at 82.11 The APA adopted this new construct of measuring adaptive behavior in its
fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5"), published
in 2013. See DSM-5 at 37. And in 2010, the AAIDD clarified that intellectual-functioning
deficits are indicated by an IQ score “approximately two standard deviations below the mean” (a
score of about 70) adjusted for “the standard error of measurement” (or “SEM”). AAIDD,
Intellectual Disability: Definition, Classification, and Systems of Support (11th ed. 2010)
(“AAIDD-11”) at 27.
Most recently, the Supreme Court has weighed in, expounding on the definition of
intellectual disability in a string of three decisions and emphasizing in each that states must
11
“Conceptual skills” include language, reading and writing, money concepts,
and self-direction; “social skills” include interpersonal relationships, personal
responsibility, self-esteem, gullibility and naivete, following rules, obeying laws, and
avoiding victimization; and “practical skills” include daily activities such as eating,
personal hygiene, dressing, meal preparation, housekeeping, transportation, taking
medication, money management, and telephone use, as well as occupational skills and
maintaining a safe environment. AAMR-10 at 82.
92
adhere to the medical community’s clinical standards in assessing intellectual disability for
Eighth Amendment purposes. In its 2014 decision in Hall v. Florida, 572 U.S. 701 (2014), the
Court struck down a Florida law that, as interpreted by the Florida Supreme Court, precluded the
submission of additional evidence of intellectual disability where the prisoner’s seven IQ scores
in the record were all above 70 (ranging from 71-80) and two IQ scores that had been excluded
from the record were under 70. Id. at 721. A strict cutoff for IQ scores, it explained, ran counter
to “[t]he clinical definitions of intellectual disability, which take into account that IQ scores
represent a range, not a fixed number, [and] were a fundamental premise of Atkins.” Id. at 720.
“Intellectual disability is a condition,” it declared, “not a number.” Id. at 723. Courts, therefore,
must consider the SEM, and “when a defendant’s IQ test score falls within the test’s
acknowledged and inherent margin of error, the defendant must be able to present additional
evidence of intellectual disability, including testimony regarding adaptive deficits.” Id. at 72223.
The next year, the Supreme Court held in Brumfield v. Cain, 135 S. Ct. 2269 (2015), that
a state post-conviction court’s determination that the habeas petitioner was not entitled to an
evidentiary hearing on his Atkins claim was based on unreasonable determinations of the facts in
violation of 28 U.S.C. § 2254(d)(2). Id. at 2283. It first found unreasonable the state court’s
finding that the petitioner’s IQ score of 75 was inconsistent with subaverage intelligence when,
accounting for the SEM, it was “squarely in the range of potential intellectual disability.” Id. at
2277-78. The Court next found unreasonable the state court’s refusal to grant the petitioner’s
request for an Atkins evidentiary hearing because the record failed to raise any question about the
petitioner’s adaptive-skills deficits when the petitioner presented evidence that he was born
93
prematurely at a very low birth weight and had a seizure as a child, was delayed
developmentally, and placed in special classes in school and in multiple mental health facilities;
and two experts opined that he was intellectually disabled. Id. at 2279-80.
Finally, two years later, in Moore v. Texas, 137 S. Ct. 1039 (2017), the Court overturned
a state habeas court’s decision denying the petitioner’s Atkins claim on the ground that, as it had
“instructed in Hall, adjudications of intellectual disability should be ‘informed by the views of
medical experts.’” Id. at 1044 (quoting Hall, 134 S. Ct. at 2000). The state court, it held,
improperly concluded that the petitioner’s IQ scores demonstrated that he was not intellectually
disabled when it failed to account for the SEM, which would have placed the scores at or below
70, requiring it to then continue its inquiry by considering other evidence of intellectual
disability. Id. at 1049-50. The state court also erred, the Court found, in its evaluation of the
petitioner’s adaptive functioning. Id. at 1050.12 The Court stressed that “States have some
flexibility, but not ‘unfettered discretion,’ in enforcing Atkins’ holding.” Id. at 1052-53 (quoting
Hall, 134 S. Ct. at 1998). The medical community’s current standards, promulgated in the
DSM-5 and the AAIDD-11, it explained, act as a vital “constraint on States’ leeway” by offering
“‘the best available description of how mental disorders are expressed and can be recognized by
trained clinicians.’” Id. at 1053 (quoting DSM-5 at 7 and citing Hall, 134 S. Ct. at 1990, 1991,
12
The Court found the state court incorrectly “overemphasized [the petitioner’s]
perceived adaptive strengths,” despite the medical community’s focus on “adaptive
deficits”; relied on adaptive strengths developed “in [the] controlled setting” of prison,
which is also discouraged by clinical guidelines; discounted traumatic childhood
experiences, which the medical community considers “risk factors” for intellectual
disability; and required the petitioner to show that any adaptive deficits were unrelated to
“a personality disorder,” when mental-health professionals recognize that many
intellectually disabled people also have other mental or physical impairments. Moore,
137 S. Ct. at 1050-51 (emphasis in original).
94
1993-94, 1994-96) (employing current clinical standards), and Atkins, 536 U.S. at 308 n.3, 317
n.22 (relying on then-current standards)).
In light of this precedent, the Ohio Supreme Court recently overruled Lott’s holding that
there is a rebuttable presumption that a defendant is not intellectually disabled if his or her IQ
score is above 70. In State v Ford, the court replaced Lott’s test with the standard recognized by
the Supreme Court in Moore as the “‘generally accepted, uncontroversial intellectual-disability
diagnostic definition.’” State v Ford, No. 2015-1309, 2019 WL 5792203, at *13 (Ohio Nov. 7,
2019) (quoting Moore, 137 S. Ct. at 1045). The court held:
For purposes of eligibility for the death penalty, a court determining whether a
defendant is intellectually disabled must consider three core elements: (1)
intellectual-functioning deficits (indicated by an IQ score approximately two
standard deviations below the mean—i.e., a score of roughly 70 or lower when
adjusted for the standard error of measurement), (2) significant adaptive deficits in
any of the three adaptive-skill sets (conceptual, social, and practical), and (3) the
onset of these deficits while the defendant was a minor. The trial court may consider
expert testimony and appoint experts if necessary in deciding this issue.
Id. The court remanded the case to the trial court “to properly determine” whether the petitioner
was intellectually disabled. Id.13
13
Notably, Ohio’s high court ordered the trial court to assess the defendant’s
current intellectual functioning. After a period of uncertainty, courts now consistently
hold that, because intellectual disability is a developmental disorder that manifests before
adulthood and remains unchanged throughout life, a defendant should be evaluated for
intellectual ability for purposes of an Atkins claim at the time of the hearing, not at the
time of the crime or trial. See, e.g., Heller v. Doe, 509 U.S. 312, 323 (1993) (“Mental
retardation is a permanent, relatively stable condition . . . .”); Moormann v. Schriro, 672
F.3d 644, 649 (9th Cir. 2012) (“There is no clearly established federal law that a person
who was not mentally retarded at the time of the crime or the trial may nevertheless be
exempted from the death penalty pursuant to Atkins, because of subsequent mental
deterioration. The law appears to be to the contrary and does not indicate retardation is a
product of changing circumstances.”); Ochoa v. Workman, 669 F.3d 1130, 1137-38 (10th
(continued...)
95
The Ohio Supreme Court also examined in Ford whether the trial court should have
considered evidence regarding the “Flynn Effect,” a “‘generally recognized phenomenon’ in
which the average IQ scores produced by any given IQ test tend to rise over time, often by
approximately three points per ten years from the date the IQ test is initially standardized.’” Id.
at *11 (quoting Black v. Carpenter, 866 F.3d 734, 738 n.1 (6th Cir. 2017)). The court noted that
the Supreme Court did not discuss the Flynn Effect in either Hall or Moore, but the AAIDD
recommends that in “‘cases in which a test with aging norms is used as part of a diagnosis of
[intellectual disability], a corrected Full Scale IQ upward of 3 points per decade for age of the
norms is warranted.’” Id. at *12 (quoting AAIDD, User’s Guide to Accompany the 11th Edition
of Intellectual Disability: Definition, Classification, and Systems of Supports 23 (11th ed.
2012)).
The court held, therefore, that the trial court should have discussed evidence regarding the Flynn
Effect in evaluating the petitioner’s IQ, “although it was in the trial court’s discretion whether to
include it as a factor in the IQ scores.” Id.
B.
Procedural History of Wesson’s Atkins and Atkins-Related IneffectiveAssistance Claim
Within two months of Wesson’s indictment, his appointed counsel, Lawrence Whitney
and Donald Hicks, requested the appointment of two experts, psychologist Jeffrey Smalldon,
Ph.D., and mitigation specialist Thomas Hrdy. (Doc. 12-3 at 56-67.) The trial court granted the
request. (Id. at 123.)
13
(...continued)
Cir. 2012) (holding that Oklahoma’s determination that intellectual disability is a static
condition is neither contrary to, nor an unreasonable application of, Atkins).
96
Wesson did not assert a claim related to intellectual disability during the trial-court
proceedings. (See Doc. 12-8 at 26-34.) During the mitigation phase of trial, however, Dr.
Smalldon briefly touched upon Wesson’s intellectual abilities. (See Doc. 13-26 (Trial Tr.) at 71164.)14 He testified that Wesson’s full-scale IQ was 76, and he opined that, based on that score,
Wesson had “borderline intellectual functioning,” or the range between mild intellectual
disability and low average. (Id. at 93-94, 128, 132-33.) Wesson functioned, Dr. Smalldon
explained, at the third grade level in word recognition, sixth grade level in spelling, and second
grade level in arithmetic. (Id. at 115.) He was unable to do anything but “pretty simple addition
and subtraction and the simplest multiplication problems.” (Id.)
Dr. Smalldon was impressed by Wesson’s apparent motivation to do well on the tests.
He said he had never “evaluated someone who was so focused and so intent at not being found
mentally retarded, that was probably his overriding concern from the start.” (Id. at 93.) He
testified that Wesson tried hard to hide any intellectual weaknesses, “act[ing] as his own coach”
to encourage himself and getting “very discouraged with himself” when he struggled. (Id. at 94.)
He was, Dr. Smalldon recounted, “very eager to demonstrate his desire to be seen as intelligent
and motivated to do his best.” (Id. at 95.)
Dr. Smalldon explained that Wesson did not do well in school, having completed only up
to the seventh grade before dropping out. (Id. at 107.) He noted that Wesson also had a serious
stuttering problem, which could have been caused by prenatal exposure to alcohol, as his mother
was a “serious alcoholic.” (Id. at 107-08, 96.) Fetal alcohol syndrome, he testified, is the
“single greatest contributor to mental retardation.” (Id. at 97.)
14
Dr. Smalldon did not submit a report to the trial court.
97
As to Wesson’s functioning, Dr. Smalldon noted that a counselor had encouraged
Wesson “to live independently in the community without a woman to depend on, . . . that he
needed to stand on his own two feet and be able to function independently.” (Id. at 122.)
Wesson also had difficulty finding and maintaining employment, though this was also due to his
criminal history. (Id. at 123-24.) And Wesson’s relationships with women had “always been
problematic,” as he was “utterly unable to manage them in a healthy way or to maintain healthy
boundaries . . . .” (Id. at 124.) He was extremely insecure and “seem[ed] to have become frantic
whenever he perceived the possibilities of abandonment or rejection by a woman.” (Id. at 125.)
On March 13, 2009, the panel imposed a sentence of death for the aggravated murder of
Emil Varhola and additional sentences for the other noncapital offenses. (See Doc. 12-7 at 116.)
Wesson’s first petition for post-conviction relief, filed on February 17, 2010, also did not
contain any Atkins-related claims. (See Doc. 12-9 at 155-94.) Wesson did assert, however, that
trial counsel were ineffective for failing “to ensure that a complete and cohesive psychological
evaluation was conducted” of Wesson, particularly regarding anti-social personality disorder.
(Id. at 174-75.) As support, he attached an affidavit of Dennis Eshbaugh, a clinical and forensic
psychologist, who reviewed numerous documents and interviewed Wesson for about three hours.
(Doc. 12-14 at 48-67.) Dr. Eshbaugh did not disagree with Dr. Smalldon’s diagnosis of
borderline intellectual functioning, but he made several observations relating to Wesson’s
intellectual abilities and functioning:
•
Wesson told him that he lived independently as an adult “only briefly around
1977"; otherwise, he lived with girlfriends or relatives.
98
•
Wesson’s relationships with women were “volatile and extremely unstable.”
•
Around 1986 or 1987, Wesson thought he took and passed the GED
examination, but later said no documentation could be found, and it was
possible he took only the GED pre-exam.
•
Wesson had “no long-term employment history or career direction.” Wesson
reported that he held a number of labor jobs, most of which were paid in
unreported cash, in laundry work, painting, stocking and loading trucks, and
general maintenance. At the time of the murder, he was unemployed.
•
Wesson had an extensive criminal history with numerous incarcerations.
•
Wesson reported that he spent his time on death row drawing and painting in
oils, exercising, watching television, reading mystery novels, listening to
music, and keeping a daily journal.
•
Wesson had a “chronic history of maladjustment,” including alcohol abuse,
gang membership, crime, and domestic violence.
•
The Ohio Department of Rehabilitation and Correction conducted several
assessments of Wesson’s academic abilities and intellectual functioning. His
educational achievement level was tested to be at about the fifth grade level,
and all but one of the estimates of his intellectual functioning were
“significantly below average.”
•
Dr. Smalldon was a “very competent and experienced psychologist,” but
should have written a report, was “overly inclusive” in his findings, provided
insufficient detail, should have highlighted Wesson’s antisocial personality
disorder rather than his possible, but undocumented, cognitive disorder
associated with brain injury.
(Id.)
The trial court denied the petition. (Id. at 284-99.) The state appellate court affirmed
that judgment, State v. Wesson, No. 25874, 2012 WL 4480109 (Ohio Ct. App. Sept. 28, 2012),
and the Ohio Supreme Court declined jurisdiction, State v. Wesson, 140 Ohio St. 3d 1438 (Ohio
2014).
99
Wesson first raised an Atkins-related claim in an application to reopen his direct appeal,
filed on March 21, 2014, in the Ohio Supreme Court. (Doc. 41-3.) He asserted that his appellate
counsel was ineffective for failing to raise a claim that his trial counsel was ineffective for failing
to present through expert testimony a complete diagnosis of intellectual disability. (Id. at 42-43.)
The court summarily denied the application. State v. Wesson, 140 Ohio St. 3d 1449 (Ohio 2014).
On September 24, 2015, Wesson filed a petition for writ of habeas corpus in this Court.
(Doc. 16.) He asserted six grounds for relief, including an Atkins claim and related claim of
ineffective assistance of trial counsel. (Doc. 16 at 47-104.) Soon after, he moved to stay his
case in this Court and hold it in abeyance until he had exhausted certain of his ineffectiveassistance claims and his Atkins claim. (Doc. 20.) Respondent opposed the motion. (Doc. 22.)
On November 20, 2015, this Court granted Wesson’s motion to stay the case and hold it in
abeyance. (Doc. 25.)
On December 11, 2015, Wesson filed a second-in-time post-conviction petition in the
state trial court, raising, among other claims, his Atkins claim and related ineffective- assistance
claim. (Doc. 41-1 at 13-85.) He supported the claims with reports from psychologists Daniel
Grant and Stephen Greenspan, both of whom opined that Wesson is intellectually disabled under
current medical standards (id. at 88-120); an affidavit of Dr. Smalldon, the psychologist who
testified at Wesson’s mitigation hearing, in which he attested that he did not have the requisite
expertise or sufficient information about Wesson to offer an opinion on whether Wesson was
intellectually disabled (id. at 121-24); school records (id. at 125-41); medical records (Doc. 41-2
at 87-172); affidavits of Wesson’s family members (id. at 173-89); and affidavits of Wesson’s
initial post-conviction counsel, who explained their inexperience in capital cases in general and
100
specifically with intellectual disability and their reliance on Dr. Eshbaugh, who was not an
expert on intellectual disability (Doc. 41-3 at 5-9).
The state court denied the petition on the grounds that it was successive and untimely
under Ohio’s statutory post-conviction relief scheme. (Doc. 41-3 at 106-17.) The state appellate
court affirmed that judgment. State v. Wesson, No. 28412, 2018 WL 1189383 (Ohio Ct. App.
March 7, 2018). And the Ohio Supreme Court denied further post-conviction
review. State v. Wesson, 153 Ohio St. 3d 1433 (2018), cert. denied, 139 S. Ct. (2018).
Wesson then returned to this Court and filed an amended habeas petition on January 9,
2019. (Doc. 36.) In it, he reasserts his original six grounds for relief, including the nowexhausted Atkins claim (id. at 115-23) and related claim of ineffective assistance of trial counsel
(id. at 110-14).
C.
Wesson’s Atkins Claim
Wesson asserts that the evidence he presented to Ohio state courts on post-conviction
review establishes that he is intellectually disabled under Ohio law, and the Eighth Amendment,
therefore, prohibits his execution under Atkins. (Doc. 36 at 115-24; Doc. 46 at 138-45.) If this
Court were to consider the merits of this claim, it would be through de novo review, as no state
court has adjudicated these claims on the merits. See 28 U.S.C. § 2254(d) (AEDPA’s deferential
standard applies only to “claim[s] that [were] adjudicated on the merits in State court
proceedings”). And Ohio law, now set forth in Ford, would apply. See Black v. Carpenter, 866
F.3d 734, 737, 740 (6th Cir. 2017) (holding that district court properly applied most current
Tennessee law regarding the definition of intellectual disability in its de novo review of
petitioner’s Atkins claim, as the Atkins Court “‘le[ft] to the States the task of developing
101
appropriate ways to enforce’ its prohibition on executing mentally retarded criminals”) (quoting
Atkins, 536 U.S. at 317).
Wesson relies on Dr. Grant and Dr. Greenspan’s reports, each written in the fall of 2015
and submitted with his second state post-conviction petition. (Doc. 41-1 at 88-103 (Grant Rpt.);
Doc. 41-1 at 104-68 (Greenspan Rpt).) Dr. Greenspan is a nationally recognized expert in
intellectual disability and forensic evaluation of that condition as well as fetal alcohol spectrum
disorders. (Id. at 106-07.) He claims to be the most cited authority in the AAIDD and APA’s
diagnostic manuals and wrote four chapters in the 2015 AAIDD guidebook The Death Penalty
and Intellectual Disability. (Id. at 106.) Dr. Grant specializes in neuropsychology, forensic
psychology, and educational psychology. (See id. at 100-01.) Both experts reviewed the
materials submitted with Wesson’s state post-conviction petitions and interviewed Wesson in
prison. (See id. at 88, 107.) Dr. Grant tested Wesson on intelligence; academic, language,
memory, visual spatial, and motor and tactile skills; executive functions; and adaptive behavior.
(See id. at 90-97.) Both Dr. Grant and Dr. Greenspan diagnosed Wesson as satisfying the three
criteria of intellectual disability under the prevailing clinical standards at the time of their
evaluations, which were recognized and adopted by the Ohio Supreme Court in Ford:
intellectual functioning, adaptive behavior, and early developmental onset. (Id. at 99, 114.)
Intellectual functioning. Under the first prong of Ford’s definition of intellectual
disability, Wesson must demonstrate “intellectual-functioning deficits (indicated by an IQ score
approximately two standard deviations below the mean—i.e., a score of roughly 70 or lower
when adjusted for the standard error of measurement . . . .” Ford, 2019 WL 5792203, at *13.
Wesson’s intelligence and educational achievement scores include:
102
•
In 1998, Wesson was given the Revised Beta-II group-administered
nonverbal IQ test. He received an IQ score of 87, which Dr. Grant corrected
for the Flynn Effect to be 80. (Doc. 41-1 at 92.)
•
Wesson was administered the General Ability Measure for Adults (GAMA)
IQ test three times while incarcerated, achieving scores of 59 (undated), 79
(in 2001), and 90 (in 2003). (Id.) Dr. Grants explains, however, that this test
is not considered reliable in diagnosing intellectual disability, as it is groupadministered and has been found to have an unreasonable error rate. (Id.)
•
In 2008, Dr. Smalldon administered the Wechsler Adult Intelligence ScaleThird Edition (WAIS-3). Wesson scored a verbal IQ of 74; performance IQ
of 81; and a full-scale IQ of 76. Dr. Grant and Dr. Greenspan applied the
Flynn Effect to find a corrected full-scale IQ of 72. (Id. at 91, 111.)
•
In 2008, Dr. Smalldon also administered the Wide Range Achievement Test
Revision-3 (WRAT-3). This yielded reading recognition at grade level 4.7,
with a standard score of 66; spelling at grade level 6.2, with a standard score
of 76; and arithmetic at grade level 2.9, with a standard score of 56. (Id.)
•
In 2015, Dr. Grant administered the WAIS-4. Wesson obtained a full-scale
IQ score of 76. Dr. Grant and Dr. Greenspan applied the Flynn Effect to find
a corrected full-scale IQ score of 73. (Id.)
•
In 2015, Dr. Grant also gave Wesson the Reynolds Intellectual Assessment
System (RIAS) Verbal Intelligence Scale. He scored a verbal intelligence
index (IQ) of 76. Dr. Grant applied the Flynn Effect to find a corrected score
of 72. (Id. at 92.)
•
In 2015, Dr. Grant also administered the WRAT-4. This yielded a word
reading skills at grade level at 4.4, with a standard score of 71; reading
comprehension of sentences at grade level 7.7, with a standard score of 81;
spelling skills at grade level 5.5 with a standard score of 76; and math
computation skills at grade level of 3.5, with a standard score of 73. (Id. at
94, 111.)
Both Dr. Grant and Dr. Greenspan concluded that, based on these test scores, Wesson
met the first criteria for intellectual disability. (See id. at 99, 110-11.) Wesson’s three IQ scores
of 76 (WAIS-3, WAIS-4, and RIAS) in 2008 and 2015, when corrected for the Flynn Effect to
72, 72, and 73, respectively, are within one standard error of measurement of an IQ of 70. (Id. at
103
99, 110.) Moreover, the scores are all within one point of each other, which, as Dr. Grant
observes, “indicates consistency of Mr. Wesson’s performance over time and across two separate
evaluations[,] which strengthens the accuracy of these measures and the accuracy of the
prediction of his level of intelligence.” (Id. at 92.)
Further, Wesson’s performance on the educational achievement tests was consistent with
his IQ scores. Dr. Greenspan explained that, although “educational achievement is not identical
with intelligence, the two concepts are closely related and academic scores that low (in a man
then just over age 50) are indicative of very significant cognitive deficits.” (Id. at 111.) He
concluded, “a number of intellectual and other cognitive tests have been administered to Mr.
Wesson, and these indicate intellectual deficits that are congruent with someone who falls in the
upper range of the Intellectual Disability spectrum.” (Id.)
Adaptive behavior. The second element of Ford’s definition of intellectual disability is
“significant adaptive deficits in any of the three adaptive-skill sets (conceptual, social, and
practical) . . . .” Ford, 2019 WL 5792203, at *13. Dr. Grant and Dr. Greenspan found Wesson
satisfied this criteria as well. (See Doc. 41-1 at 96, 111-12.)
Dr. Grant administered the Texas Functional Living Scale to assess Wesson’s adaptive
behavior. (Id. at 96.) Dr. Greenspan explained that this is a “newly developed ‘direct’
(individually administered like an IQ test)” test. (Id. at 111.) It is divided into four areas:
ability to use analog clocks and calendars; ability to perform calculations involving time and
money; ability to utilize basic communications skills; and everyday activities and memory. (Id.
at 96.) Dr. Grant reported that Wesson obtained a standard score of 67, “indicating significant
limitations in his adaptive behavior skills.” (Id.) His lowest score was on the communication
104
subtest, which was consistent with his performance on the various language tests Dr. Grant had
administered. (Id.) Grant concluded that Wesson exhibited deficits within the conceptual
domain of adaptive functioning, as he performed poorly on the academic tests, tests measuring
communication and language skills, and memory and retention of information over time. (Id.)
Dr. Greenspan agreed that Wesson’s score on the adaptive behavior test showed “very
substantial adaptive impairment.” (Id. at 111.) He further provided a detailed summary of the
“substantial amount of documentary and descriptive information” demonstrating that Wesson
has ‘significant impairments” in two domains of adaptive functioning – practical and conceptual
– and “probably” also the third, social (although only one is required to satisfy the current
guidelines). (Id.) He reported:
ln terms of Practical adaptive behavior, Mr. Wesson has never lived independently
(as reflected in a counselor pointing out that he has always depended on women –
family members or girlfriends – to help him cope with the demands of daily living.
He has also never been able to hold a long-term job. He was not able to obtain a
Driver’s License, something universally sought by adolescents and adults.15
Conceptual adaptive behavior is obviously a big area of deficit for Mr. Wesson, as
reflected in the fact that he has very low academic achievement scores, reportedly
struggled in school and dropped out at age 16 without eve[n] completing the 7th
grade. He tried, but was unable to obtain a GED. Educational records are very sparse
(a challenge, reflecting the passage of many years, is that records are sparse and lack
detail), but he struggled considerably. Mr. Wesson was held back several grades, a
practice (today frowned upon) which in the absence of special education services at
that time, is a strong indicator of cognitive impairment.
15
Dr. Greenspan subsequently acknowledged in a supplemental declaration that
he had been informed by a former attorney of Wesson’s that Wesson had in fact obtained
a driver’s license in the 1990s, when he was in his thirties. (Doc. 41-3 at 11.) But
Wesson managed to hold on to it for only a short time before it was suspended as a result
of a DUI conviction, and he never sought to have the license reinstated. (Id.) Dr.
Greenspan declared that this fact was “of extremely minimal importance” and “in no way
cause[d] [him] to change [his] opinion about [Wesson] having ID.” (Id.)
105
Mr. Wesson's three paternal cousin[s] – Randall (about the same age), Herman
[(]seven years older), and Stephen (less than a year older) – all knew Hersie well and
have testified in affidavits about his considerable adaptive limitations. Two have led
distinguished lives (Stephen as a college administrator and Herman as a former
Speaker of the California State Assembly and a current member of the Los Angeles
City Council) and thus have the competence and credibility to speak authoritatively
about their cousin.
The cousins all indicated in their 2015 affidavits, that Hersie was considered “slow”
and could not do many of the things peers of the same age could do. For example,
their grandmother (the family matriarch) would entrust the other children to go to the
store with money and a list, but not Hersie, as he could not be trusted to get what was
on the list or to make sure that he received the correct change (one cousin testified
that he never saw his cousin count money). Hersie could not participate in games that
involved any complex rules, and he had no same-age friends (this is almost a
universal characteristic of individuals with ID). He had no long-term employment
history and never was able to live independently. He was constantly teased and easily
manipulated by others. He showed very poor social judgment (a hallmark of ID as
well as FASD [fetal alcohol spectrum disorder]), as when he threw rocks for no
reason at some other neighborhood youths, causing him and his cousin to have to
flee. He grew up in a household without encouragement or parental love, support, or
protection. He lacked a stable living situation, as his parents were both incompetent
alcoholics, and he and his siblings often ended up staying with their grandmother.
My interview with Mr. Wesson [on] Ohio’s death row, provided additional support
for a diagnosis of ID, particularly in regard to social reasoning. In a structured
interview tapping Mr. Wesson’s degree of “common sense,” Mr. Wesson showed
substantial lack of ability to anticipate social risk. Such a deficit is very indicative
of ID and also of FASD.
In sum, Mr. Wesson has deficits in adaptive functioning that are congruent with ID.
It is my professional opinion, therefore, that prong two is satisfied.
(Id. at 112.)
Early developmental onset. To satisfy the third prong of Ford’s definition of intellectual
disability, Wesson must show that the onset of these deficits occurred while he was a minor.
Ford, 2019 WL 5792203, at *13. Dr. Grant and Dr. Greenspan both concluded that the record
supported this requirement as well.
106
Dr. Grant focused on Wesson’s academic record to prove early onset. He noted that
Wesson “was always a poor student . . . .” (Doc. 41-1 at 99 (Grant Rpt.).) He reported that
Wesson was in the fifth grade in 1969 and socially promoted to the seventh grade in 1970 to
place him with his own age group. (Id. at 89.) For a period of time in 1971 and 1972, Wesson
was in a class that was ungraded. (Id.) From 1969 to 1972, he was either below grade level or
earned a D or F in his classes, except for art class, in which he received a C. (Id.) Wesson
withdrew from school while he was in the eighth grade. (Id.) In addition, when Wesson was
sixteen years old, he was administered a reading test that yielded a vocabulary grade level of 3.3
and a reading comprehension grade level of 2.6. (Id.) Dr. Grant stated that those scores are
seven to eight grade levels behind where he should have been at that age. (Id.) He also noted
that Wesson would have qualified for special education classes, but they were not offered at his
schools while he attended them. (Id.)
Dr. Greenspan based his opinion regarding developmental onset on his finding that
Wesson “very likely” has fetal alcohol spectrum disorder. (Id. at 113 (Greenspan Rpt.).) He
reported that Wesson’s mother was a “confirmed alcoholic who drank alcohol regularly
throughout her pregnancy with him.” (Id. at 105.) He noted that Wesson is small in stature and
has a very small head, both of which are typical of individuals with the disorder. (Id.) Fetal
alcohol spectrum disorder also causes other functional consequences present in Wesson, he
opined, including delays in developmental milestones, deficient general intelligence and poor
school functioning, a mixed neuropsychological pattern, problems in adaptive behavior, and very
poor social judgment and failure to learn from experience. (Id.)
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Dr. Greenspan identified other “significant early risk indicators for ID” in Wesson’s
history, including meningitis at birth, small head size, and a severe head injury at eleven months
old, along with several other reported head injuries. (Id.) He also noted the “extreme
environmental abuse and neglect” that Wesson endured as a child as a contributing factor. (Id.)
Wesson’s father physically and verbally abused him on a daily basis, often because Wesson
stuttered or because he was given a blood transfusion when he had meningitis. (Id. at 105; see
also Doc. 13-26 (Trial Tr.) at 31-34 (Yvette Wesson Test.).) Wesson’s mother severely
neglected him. For example, she put gin in his bottle when he was a baby and left him locked in
a closet with his young sister while she went out. (Doc. 41-1 at 105 (Greenspan Rpt.); see also
Doc. 13-26 (Trial Tr.) at 28-30 (Yvette Wesson Test.).)
Respondent’s entire challenge to the merits of Wesson’s Atkins claim comprises three
paragraphs of his return of writ. (Id. at at 68-69.) He first asserts that “[t]he record here
demonstrates that Wesson cannot meet this burden” under Lott of demonstrating that he is
intellectually disabled because neither Dr. Grant nor Dr. Greenspan articulated “an opinion to a
reasonable degree of medical certainty that Wesson meets Ohio’s definition of intellectual
disability for purposes of the Eighth Amendment.” (Id. at 68.) Dr. Greenspan concluded in his
report, however, “It is my opinion, to a reasonable degree of professional certainty, that the
evidence I gathered and reviewed is congruent with . . . a diagnosis” of intellectual disability.
(Doc. 41-1 at 114 (Greenspan Rpt.).) And Dr. Grant did not frame his conclusion as an “opinion
to a reasonable degree of medical certainty,” but he clearly and unambiguously “diagnosed”
Wesson in his report with “Intellectual Disability, Within Mild Range.” (Id. at 99 (Grant Rpt.).)
108
Indeed, both experts applied the current clinical standards, which have been recognized and
adopted by both the United States and Ohio supreme courts.
Respondent also argues that this Court may not consider the information set forth in the
expert reports under AEDPA’s § 2254(e)(2), which precludes an evidentiary hearing “[i]f the
applicant has failed to develop the factual basis of a claim in State court proceedings” unless the
applicant satisfies certain conditions. 28 U.S.C. § 2254(e)(2). (Doc. 43 at 68-69.) But that
provision does not apply here, as Wesson submitted this evidence to state courts in state postconviction proceedings and it is now in the state-court record. See Holland v. Jackson, 542 U.S.
649, 653 (2004) (per curiam) (holding that § 2254(e)(2) applies “when a prisoner seeks relief
based on new evidence”) (emphasis added)).
Notably, Respondent has not presented an expert to counter the conclusions of Wesson’s
experts. Nor does he refute any specific factual findings supporting Wesson’s Atkins claim.
Respondent points only to Dr. Smalldon’s testimony during the mitigation phase of Wesson’s
trial that Wesson was not intellectually disabled. (See, e.g., Doc. 49 (Mem. in Opp.) at 7.
The Court finds that, based on this record, Wesson has a credible claim that he is
intellectually disabled and therefore exempt from execution.
D.
Procedural Default of Wesson’s Atkins and Atkins-Related IneffectiveAssistance Claims
Respondent’s stronger argument, however, is that Wesson’s Atkins claims are
procedurally defaulted because Wesson first raised them in a second-in-time post-conviction
petition that the state courts denied as untimely and successive. (Doc. 43 at 64, 66-69.) Wesson,
for his part, concedes that the claims are procedurally defaulted, but he argues that the default
should be excused. (See. e.g., Doc. 46 at 13, 119-22.) As explained above, a petitioner may
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overcome procedural default by demonstrating cause for the default and actual prejudice that
resulted from the alleged violation of federal law, or that there will be a “fundamental
miscarriage of justice” if the claim is not considered. Coleman v. Thompson, 501 U.S. 722, 750
(1991). Wesson asserts that his Atkins claims’ default should be excused either for cause –
namely, his trial and post-conviction counsel’s failure to raise the claim – or because there will
be a “fundamental miscarriage of justice” if the claim is not considered. (Doc. 46 at 119-22.)
1.
Cause and Prejudice: Ineffective Assistance of Trial and PostConviction Counsel
Wesson contends the default of his Atkins claim was caused by the ineffective
performance of his trial counsel in failing to investigate and raise in the trial court a claim that
his intellectual disability precluded imposition of the death penalty, and in failing to consult
with, and present the testimony of, a qualified intellectual-disability expert. (Doc. 46 at 132-37.)
“Attorney error that constitutes ineffective assistance of counsel is cause.” Coleman v.
Thompson, 501 U.S. 722, 754 (1991). However, an ineffective-assistance claim cannot provide
cause for the procedural default of another claim if the ineffective-assistance claim itself is
procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). And Respondent
asserts that Wesson’s Atkins-related ineffective-assistance claim, like the other claims Wesson
raised in his second post-conviction petition, as previously analyzed, is procedurally defaulted.
(Doc. 43 at 64-65.)
Wesson seeks to overcome this impediment by arguing, as he did with his other defaulted
ineffective-assistance claims, that the default of his Atkins-related ineffective-assistance claim
110
should be excused for cause under the test established in Martinez v. Ryan, 566 U.S. 1 (2012),
and Trevino v. Thaler, 569 U.S. 413 (2013). (See Doc. 49 (Reply Mem.) at 3-4.)
As explained above, the third and fourth requirements of the Martinez / Trevino test are
satisfied here: post-conviction review provided Wesson with the first opportunity for review of
this ineffective-assistance claim as it relies on extra-record evidence, and the Sixth Circuit has
held that Trevino and its modification of Martinez applies in Ohio in such cases. White v.
Warden, Ross Corr. Inst., 940 F.3d 270, 277 (6th Cir. 2019).
Wesson argues that this ineffective-assistance claim meets the first two requirements of
the Martinez / Trevino test as well. He contends he meets the first element of the test because it
is a “substantial” claim with “some merit.” Martinez, 566 U.S. at 14. As previously explained,
under Strickland v. Washington, 466 U.S. 668, 687 (1984), to prevail on an ineffective-assistance
claim, a petitioner must demonstrate both that counsel performed deficiently and that he or she
was prejudiced by counsel’s errors. The Supreme Court was clear in Strickland that defense
counsel has a duty to reasonably investigate the facts of the case or reasonably determine that an
investigation is not necessary, and the failure to do so is deficient performance. Id. at 690-91;
see also Wiggins v. Smith, 539 U.S. 510, 525 (2003) (petitioner had an “excruciating life
history,” yet counsel focused exclusively on his direct responsibility for murder). Indeed, the
Sixth Circuit repeatedly has found constitutionally ineffective assistance where counsel failed to
conduct an adequate investigation, including interviewing potentially important witnesses or
experts and presenting important testimony or evidence at trial. See, e.g., Frazier v. Huffman,
343 F.3d 780, 795-99 (6th Cir. 2003) (counsel ineffective where he failed to introduce any
mitigating evidence in either guilt or penalty phases of trial and he was aware of petitioner’s
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brain injury); Combs v. Coyle, 205 F.3d 269, 278 (6th Cir. 2000) (finding deficient performance
where counsel failed to investigate adequately his own expert witness, who testified that, despite
the defendant’s intoxication at the time of the crime, the defendant nevertheless was capable of
forming the requisite intent to commit the crimes); Groseclose v. Bell, 130 F.3d 1161, 1170 (6th
Cir. 1997) (finding ineffective assistance where counsel had no strategy and conducted no
investigation at all).
Both parties point to Frazier v. Jenkins, 770 F.3d 485 (6th Cir. 2014), for support on this
issue. The facts in Frazier are quite similar to this case. In Frazier, the petitioner, James
Frazier, argued that his trial counsel performed deficiently in withdrawing his Atkins claim
before his 2005 trial and in failing to retain an intellectual-disability expert. Id. at 500-02.
Frazier’s IQ score of 72 was slightly above 70 but within the standard error of measurement. Id.
at 500. The Social Security Administration also had determined that Frazier was intellectually
disabled. Id. And, interestingly, Frazier’s expert was also Dr. Smalldon. Id. Frazier’s counsel
claimed they withdrew the Atkins motion because of Frazier’s IQ score, and on the advice of Dr.
Smalldon and a second expert, they did not believe that the Lott presumption could be overcome.
Id.
There is a critical distinction, however, between the two cases: the Ohio Supreme Court
adjudicated, and rejected, Frazier’s Atkins-related ineffective-assistance claim on the merits.
Frazier, 770 F.3d at 500 (“The Ohio Supreme Court adjudicated this claim on the merits, and
thus, we afford that decision substantial deference under AEDPA.”). The state court held that
counsel’s representation was not constitutionally defective because: (1) Dr. Smalldon testified
that Frazier’s full-scale IQ score of 72 was “pretty accurate”; (2) Frazier failed to present
112
evidence that linked his Social Security benefits to his mental retardation claim; (3) there was no
evidence that Frazier’s attorney failed to consult with him prior to withdrawing the motion,
particularly given Frazier’s in-court statements before the motion was withdrawn; and (4)
counsel was permitted to rely on the judgments of Dr. Smalldon and the other expert. Id. (citing
Frazier, 115 Ohio St. 3d at 163).
The circuit court found that, given the record in the case, counsel’s performance was
“troubling” and “questionable” for two reasons. Id. at 500, 501. First, the court noted that Ohio
courts have found defendants intellectually disabled even with IQ scores above 70. Id. at 500
(citing State v. Gumm, 169 Ohio App. 3d 650 (2006)). And, it observed, there was “plenty of
evidence” to suggest that there was a “non-frivolous chance” that if counsel had not withdrawn
the Atkins motion, the state trial court would have concluded that Frazier had met the standard
for intellectual disability, including a “well-documented history of academic struggles” and IQ
scores within the standard error of measurement. Id. at 500-01. Second “and more
fundamentally,” the court stated,
we fail to see the downside in having a non-frivolous Atkins hearing, and it is
difficult to ascertain a strategic reason for withdrawing the motion in this case. These
hearings are before the judge, not the jury, . . . and thus, no potentially prejudicial
material would be kept from the jury by foregoing the hearing. Moreover, to the
extent that the evidence is helpful to Frazier, nothing bars counsel from presenting
the same information to the jury during the mitigation stage of trial (as happened
during Frazier’s trial). By choosing to withdraw the motion for an Atkins hearing,
counsel deprived Frazier of the best opportunity to create a full record on the issue
and to allow the state-trial-court judge—the judicial officer with the best sense of
Frazier’s actual abilities—to decide whether he met the Lott definition of mental
retardation.
Id. at 501 (internal citations omitted).
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Ultimately, however, the Sixth Circuit held that under AEDPA’s deferential standard of §
2254(d)(1), it could not conclude that the state court’s “ultimate decision” was objectively
unreasonable. Id. As Respondent points out, the circuit court agreed with the state court that
“[l]awyers are permitted to rely upon qualified experts,” and “[f]airminded jurists could find that
counsel’s reliance upon Dr. Smalldon’s opinion was consistent with professional norms.” Id. at
501 (citing Murphy v. Ohio, 551 F.3d 485, 500–01 (6th Cir. 2009)). It explained that Dr.
Smalldon had significant experience in consulting in capital cases, many of which involved
intellectual disability, and “Frazier ha[d] not shown that Dr. Smalldon [was] unqualified.” Id.
Moreover, it reasoned, Dr. Smalldon had met Frazier and the new post-conviction expert relied
only on Dr. Smalldon’s report and other materials available at trial. Id. Therefore, the court
concluded, Frazier did not show that Dr. Smalldon’s opinion was unreasonable or that he was
unqualified, and counsel, in turn, was reasonable to rely on him. Id.
Wesson argues that his trial counsel’s failure to raise an Atkins claim was, as in Frazier,
“troubling.” (See Doc. 46 at 132-37.) Counsel were aware, he asserts, of Wesson’s IQ scores,
which like Frazier’s were close to 70, and history of poor functioning, and they should have
further investigated his intellectual abilities and obtained a qualified intellectual-disability
expert, such as Drs. Grant or Greenspan. (Id. at 134-35.) Instead, counsel “apparently” relied on
Dr. Smalldon’s opinion that Wesson was not intellectually disabled and chose not to pursue the
claim. (Id. at 135-36.)
Unlike Frazier, however, Wesson argues that he can demonstrate that Dr. Smalldon was
unqualified and unprepared to render his opinion at trial that he was not intellectually disabled.
(Id. at 134-35.) Wesson submitted Dr. Smalldon’s affidavit with his state post-conviction
114
petition, in which Dr. Smalldon averred that he should not “have offered that opinion.” (Doc.
41-1 at 122 (Smalldon Aff.).) Dr. Smalldon stated that intellectual disability is “not [his]
specialty area of expertise,” and he was not familiar enough with the Flynn Effect or the
“complexities and nuances involved in trying to assess adaptive capacities . . . .” (Id. at 123.)
Dr. Smalldon acknowledged that he should have examined the issue more carefully and
recommended that counsel hire an intellectual-disability expert. (Id.) He further conceded that
he did not coordinate with the mitigation specialist effectively to obtain sufficient information
for his assessment, and “[f]or that reason alone, [he] should have stopped short of offering the
Court an opinion on the mental retardation issue.” (Id. at 122-23.) And, finally, contrary to
Frazier, Wesson’s proposed experts, Drs. Grant and Greenspan, both interviewed Wesson and
obtained more current and thorough data from which to assess him. (Id. at 88 (Grant Rpt.), 107
(Greenspan Rpt.).)
Accordingly, Wesson argues that based on the record and Frazier, his Atkins-related
ineffective-assistance claim is “substantial” and meets the first requirement of the Martinez /
Trevino test.
Wesson also claims that his Atkins-related ineffective-assistance claim meets the second
requirement of the Martinez / Trevino test, in that his initial post-conviction counsel were
deficient in their failure to raise this Atkins-related trial counsel ineffective-assistance claim.
Wesson submitted affidavits from his initial post-conviction counsel, Jennifer Prillo and
Benjamin Zober of the Ohio Public Defender’s Office, in support of his second post-conviction
petition. (Doc. 41-3 at 5-7 (Prillo Aff.); 8-9 (Zober Aff.).)
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Prillo stated in her affidavit that Wesson’s case was her first post-conviction case as lead
counsel, and her co-counsel, Zober, was a “novice” death penalty defense attorney with no
significant post-conviction experience. (Id. at 6.) She averred that they “struggled some with
this case” because of their joint inexperience. (Id.) She also stated that their difficulties were
compounded by the high caseload of the Office’s Death Penalty Division and its “very tight”
budget. (Id.) As to Wesson’s intellectual abilities, Prillo stated that she “had some concerns,”
but “lacked any prior experience litigating intellectual disability claims.” (Id. at 7.) She decided
Wesson did not have an intellectual disability claim after consulting with Dr. Eshbaugh,
although he was not an expert in that field and they did not consult such an expert. (Id.) She
averred that she had no strategic or tactical reason to omit an Atkins claim and did not consider
conducting a more in-depth investigation into that issue. (Id.) Zober concurred with Prillo’s
account. He stated that they “struggled” with Wesson’s case and their investigator was
“mysteriously absent.” (Id. at 9.) He also agreed with co-counsel Prillo that there was no legal
strategy or tactics behind any omission of claims. (Id.)
The Court finds that Wesson has presented a legitimate argument under Martinez and
Trevino that the ineffective assistance of his initial post-conviction counsel may constitute cause
to overcome the procedural default of his Atkins-related claim of ineffective assistance of trial
counsel, which in turn may constitute cause for the procedural default of his Atkins claim, which
itself appears credible.
2.
Actual Innocence: Intellectual Disability
Wesson also claims that the procedural default of his Atkins claim should be excused
because he is “actually innocent” of the death penalty. (Doc. 46 at 139-41.) As noted above,
116
capital defendants can overcome the procedural default of constitutional claims by showing that
a failure to address the claims, despite the procedural bars, would result in a “miscarriage of
justice,” meaning that the defendant is actually innocent of the death penalty itself. Sawyer v.
Whitley, 505 U.S. 333, 336 (1992). In this context, “[t]o show ‘actual innocence’ one must show
by clear and convincing evidence that, but for a constitutional error, no reasonable jury would
have found the petitioner eligible for the death penalty under the applicable state law.” Id. A
petitioner is not required to show a “conclusive exoneration.” House v. Bell, 547 U.S. 518, 553
(2006). But the actual-innocence gateway for procedurally defaulted claims is restricted to
“extraordinary” cases. Schlup v. Delo, 513 U.S. 298, 327 (1995).
In Frazier v. Jenkins, the Sixth Circuit recognized that an actual-innocence argument
premised on an Atkins claim “cuts through all of the potential procedural bars and is properly
before” a habeas court. Frazier, 770 F.3d at 497 (citing McQuiggin v. Perkins, 569 U.S. 383,
386 (2013)); but see id. at 506-07 (Sutton, J., dissenting) (stating that a petitioner’s gateway
claim that he was actually innocent of the death sentence given his intellectual disability must
have an “independent constitutional claim” attached to it; otherwise, the concept of procedural
default would never apply to Atkins claims). To meet this standard, therefore, Wesson must
show by clear and convincing evidence that he satisfies Ohio’s definition of intellectually
disabled, which “‘is not a light burden and should not be confused with the less stringent, proof
by a preponderance of the evidence.’” Id. at 497 (quoting Elec. Workers Pension Trust Fund of
Local Union # 58 v. Gary’s Elec. Serv. Co., 340 F.3d 373, 379 (6th Cir. 2003)).
As previously stated, Wesson has presented a plausible claim of intellectual disability
under Atkins.
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E.
Evidentiary Hearings in Federal Habeas Cases
Wesson seeks an evidentiary hearing to present evidence supporting his argument that the
procedural default should be excused, whether for cause due to the ineffective assistance of his
trial and post-conviction counsel, or that he is actually innocent of the death penalty. (Doc. 47
(Mtn. for Evid. Hrg.) at 4-5.) Respondent opposes that request. (Doc. 48 (Brf. in Opp.).)
AEDPA restricts district courts’ authority to conduct evidentiary hearings in habeas
corpus cases. Section 2254(e)(2) of the Act precludes an evidentiary hearing “[i]f the applicant
has failed to develop the factual basis of a claim in State court proceedings” unless the applicant
satisfies certain conditions. 28 U.S.C. § 2254(e)(2). Those conditions are:
(A)
the claim relies on –
(i)
(ii)
(B)
a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2). Under AEDPA, therefore, district courts may conduct a hearing to
introduce new evidence in support of a claim “only if [the prisoner] was not at fault in failing to
develop that evidence in state court, or (if he was at fault) if the conditions prescribed in §
2254(e)(2) were met.” Holland v. Jackson, 542 U.S. 649, 652-53 (2004).16
16
The Supreme Court announced a further limitation on evidentiary hearings in
habeas cases in Cullen v. Pinholster, 563 U.S. 170 (2011), holding that “review under §
2254(d)(1) is limited to the record that was before the state court that adjudicated the
(continued...)
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Wesson argues that § 2254(e)(2) does not apply here because he does not seek a hearing
on his Atkins “claims,” but only on whether those claims are procedurally defaulted. (Doc. 47 at
4-5.) As he points out, federal habeas courts may consider new evidence when deciding whether
there is cause and prejudice or actual innocence to excuse a procedurally defaulted claim. See,
e.g., Cullen v. Pinholster, 563 U.S. 170, 214-16 (2011) (Sotomayor, J., dissenting) (recognizing
that a federal habeas petitioner “might be able to obtain federal-court review of his new evidence
if he can show cause and prejudice for his failure to present the ‘new’ claim to a state court”);
House, 547 U.S. at 537-38 (“when considering an actual-innocence claim in the context of a
request for an evidentiary hearing, the District Court need not ‘test the new evidence by a
standard appropriate for deciding a motion for summary judgment,’ but rather may ‘consider
how the timing of the submission and the likely credibility of the affiants bear on the probable
reliability of that evidence’”) (quoting Schlup v. Delo, 513 U.S. 298, 331-32 (1995);
Cunningham, 756 F.3d at 486 n.4 (evidence developed at evidentiary hearing on whether claim
was exhausted or procedurally defaulted may be considered on federal habeas review); Rideau v.
Russell, 342 Fed. Appx. 998, 1003 (6th Cir. 2009) (remanding habeas case to district court to
conduct cause-and-prejudice hearing); Howard v. Bouchard, 405 F.3d 459, 478-79 (6th Cir.
2005) (hearing held “for the express purpose” of analyzing ineffective assistance of counsel as
cause and prejudice); Ratliff v. United States, 999 F.2d 1023, 1026 (6th Cir. 1993) (noting that a
16
(...continued)
claim on the merits.” Id. at 181. Pinholster’s restrictions do not apply here, however, as
Wesson’s Atkins-related claims were not adjudicated on the merits by state courts. Id.;
see also Cunningham v. Hudson, 756 F.3d 477, 487 n.4 (6th Cir. 2014).
119
hearing on the issue of cause and prejudice would have been appropriate to determine whether a
sufficient showing of ineffective assistance of counsel has been made).
Thus, where “there are factual issues in dispute and an insufficient record upon which to
resolve the legitimate claims [of ineffective assistance of counsel] advanced by the petitioner,”
an evidentiary hearing on the issue of cause and prejudice may be warranted. Alcorn v. Smith,
781 F.2d 58, 60 (6th Cir. 1986) (finding the district court erred in denying habeas petitioner’s
request for a cause-and-prejudice hearing). Conversely, “when a court is able to resolve a
habeas claim on the record before it,” and the petitioner “has not identified any evidence that he
would introduce other than exhibits already made part of the state or federal habeas record,” an
evidentiary hearing may not be necessary. Black v. Carpenter, 866 F.3d 734, 742 (6th Cir. 2017)
(citing Sawyer v. Hofbauer, 299 F.3d 605, 612 (6th Cir. 2002)) (finding district court acted
within its discretion in denying petitioner’s request for an evidentiary hearing on Atkins claim
where he failed to demonstrate that a “hearing was required in order for the district court
properly to evaluate the voluminous record before it” under the state standard for intellectual
disability).
Here, there is an insufficient record upon which to resolve Wesson’s procedural-default
claims. For instance, Wesson has not presented evidence regarding his trial counsel’s
investigation into his intellectual abilities or their advice and communications with Wesson on
that issue. An evidentiary hearing would give Wesson the opportunity to demonstrate why his
counsel did not raise and preserve on the record a claim that Wesson was intellectually disabled.
As the Sixth Circuit remarked in Frazier, “we fail to see the downside in having a non-frivolous
Atkins hearing, and it is difficult to ascertain a strategic reason for withdrawing the motion in this
120
case.” Frazier, 770 F.3d at 501. In the alternative, an evidentiary hearing also would assist the
Court in determining whether the evidence Wesson presents concerning his intellectual abilities
meets the gateway actual-innocence clear-and-convincing standard.
Accordingly, the Court will permit the parties to address the following issues at an
evidentiary hearing: (1) whether Wesson’s initial state post-conviction counsel rendered
ineffective assistance by failing to raise a claim of ineffective assistance of trial counsel for
failing to raise at trial an Eighth Amendment intellectual-disability claim under Atkins v Virginia,
536 U.S. 304 (2002), such that it will excuse the procedural default of the underlying Atkinsrelated trial counsel ineffective-assistance claim under Martinez v. Ryan, 566 U.S. 1 (2012), and
Trevino v. Thaler, 569 U.S. 413 (2013); (2) whether Wesson’s trial counsel rendered ineffective
assistance for failing to raise an Atkins claim at trial under Strickland v. Washington, 466 U.S.
668 (1984), such that it will excuse the procedural default of Wesson’s Atkins claim; (3) whether
Wesson’s Atkins claim has merit for purposes of establishing that Wesson was prejudiced by any
ineffective assistance of post-conviction and trial counsel under Strickland; and (4) whether
Wesson can prove by clear and convincing evidence that he is actually innocent of the death
penalty under Sawyer v. Whitley, 505 U.S. 333 (1992), because he is intellectually disabled. The
Court expects only the following witnesses to appear: (1) Wesson’s initial state post-conviction
counsel; (2) Wesson’s trial counsel; (3) experts on intellectual disability; and (4) other witnesses
the parties deem necessary to provide relevant and cogent testimony regarding the specific issues
outlined above.
F.
Conclusion
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Although Wesson presents substantial evidence that he may meet Ohio’s current
definition of intellectual disability, rendering him ineligible for the death penalty under Atkins v.
Virginia, no court has yet heard his claim. And because neither his trial counsel nor his initial
post-conviction counsel raised an Atkins claim in the state trial court, he faces significant hurdles
before this Court can consider it. Wesson has demonstrated that “there are factual issues in
dispute and an insufficient record upon which to resolve the legitimate claims [of ineffective
assistance of counsel]” he advances to overcome the procedural bars to his Atkins claim. Alcorn
v. Smith, 781 F.2d 58, 60 (6th Cir. 1986). This Court, therefore, will conduct an evidentiary
hearing on those procedural issues. Wesson should be afforded an opportunity to prove his
assertion that both his trial and post-conviction counsel failed in their duty to seriously consider,
pursue and preserve a claim that, it appears, available evidence and case law should have
suggested was at the very least credible and at best would spare their client a death sentence.
IV.
Fifth Ground for Relief: Ineffective Assistance of Appellate Counsel
For his fifth ground for relief, Wesson asserts that his appellate counsel on direct appeal
provided ineffective assistance in failing to raise a claim of ineffective assistance of trial counsel
based on their failure to present a defense of voluntary intoxication. (Doc. 46 at 145-49.)
Wesson raised this claim in an application to reopen his direct appeal under Ohio Supreme Court
Practice Rule 11.06, which the court summarily denied. (Doc. 12-8 at 322.) This claim is ripe
for federal habeas review.
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The Supreme Court has held that a defendant is entitled to effective assistance of counsel
in his first appeal as a matter of right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). The two-part
test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), applies to claims of ineffective
assistance of appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). Thus, Wesson
must demonstrate that appellate counsel’s performance was deficient, and that the deficient
performance so prejudiced the appeal that the appellate proceedings were unfair and the result
unreliable. Strickland, 466 U.S. at 687.
Appellants have no constitutional right, however, to have every non-frivolous issue
raised on appeal, Jones v. Barnes, 463 U.S. 745, 750-54 (1983), and tactical choices regarding
issues to raise on appeal are properly left to the sound professional judgment of counsel, United
States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). “[O]nly when issues are clearly stronger than
those presented, will the presumption of effective assistance of [appellate] counsel be
overcome.” Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003) (internal quotation marks and
citations omitted).
Wesson argues that his appellate counsel should have raised a claim that his trial counsel
were ineffective for failing to employ a defense of involuntary intoxication under the authority of
the Ohio Supreme Court’s decision in State v. Mitts, 81 Ohio St. 3d 223, 228 (Ohio 1998). (Doc.
46 at 148.) In that case, the court recognized that, although “‘[t]he common law and statutory
rule in American jurisprudence is that voluntary intoxication is not a defense to any crime[,]’” in
Ohio, ‘“where specific intent is a necessary element, . . . if the intoxication was such as to
preclude the formation of such intent, the fact of intoxication may be shown to negative this
element.’” Id. at 228 (quoting State v. Fox, 68 Ohio St. 2d 53, 55 (Ohio 1981)). In October
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2000, however, the Ohio state legislature amended the statute governing the requirements for
criminal liability by adding a section that provides: “Voluntary intoxication may not be taken
into consideration in determining the existence of a mental state that is an element of a criminal
offense.” Ohio Rev. Code § 2901.21(C)(1). After 2000, therefore, “a lack of capacity to form an
intent to commit a crime due to self-induced intoxication [was] no longer available as an
affirmative defense to a crime where a mental state is an element of the crime.” State v. Koballa,
No. 100664, 2014 WL 4101013, at *5 (Ohio Ct. App. Aug. 21, 2014).17 Wesson’s appellate
counsel, therefore, were not ineffective for failing to raise a claim that was contrary to Ohio law.
Accordingly, Wesson has not established that the Ohio Supreme Court’s decision
rejecting this claim either contravened or misapplied Strickland.
V.
Sixth Ground for Relief: Constitutionality of the Death Penalty
In his sixth ground for relief, Wesson launches a broad attack on the constitutionality of
the death penalty, both on its face and as applied to him. He claims: (1) the death penalty
violates the Eighth Amendment’s ban against cruel and unusual punishments: (2) the death
penalty is arbitrary and unreliable in violation of the Fourteenth Amendment rights to due
process and equal protection; (3) Ohio’s capital punishment statutory scheme induces ineffective
assistance of counsel in violation of the Sixth Amendment rights to effective assistance of
counsel and an impartial jury; (4) Ohio’s capital punishment statutory scheme does not provide
17
Moreover, even if Wesson were complaining here that appellate counsel should
have raised a claim that trial counsel performed deficiently by failing to challenge Ohio
Rev. Code § 2901.21(C) as unconstitutional, the claim still would lack merit. In 2004,
the Ohio Supreme Court held that counsel’s decision not to challenge the
constitutionality of the statute in a capital case was a “legitimate tactical decision.” State
v. Foust, 105 Ohio St. 3d 137, 154 (Ohio 2004).
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individualized sentencing in violation of the Fourteenth Amendment right to due process; (5)
Ohio Revised Code § 2929.04(A)(7) is constitutionally invalid when used to aggravate Ohio
Revised Code § 2903.01(B) aggravated murder; (6) Ohio Revised Code §§ 2929.03(D)(1) and
2929.04 are unconstitutionally vague; and (7) Ohio’s capital punishment sentencing scheme does
not permit a mercy option or an appropriateness determination. (Doc. 36 at 128-44.)
Respondent concedes that Wesson presented these claims on direct appeal to the Ohio
Supreme Court, which rejected them on their merits, thereby preserving them for federal habeas
review. (Doc. 43 at 71.) The state court opined:
{¶ 90} In propositions X, XI, and XII, Wesson presents 12 constitutional challenges
to Ohio's capital punishment scheme. We summarily reject these claims, as we have
done in prior decisions. See, e.g., Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926
N.E.2d 1239, at ¶ 215–216; State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880
N.E.2d 31, ¶ 381–383; State v. Carter, 89 Ohio St.3d 593, 607–608, 734 N.E.2d 345
(2000). As we explained in State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264
(1984), paragraph one of the syllabus, “Ohio's statutory framework for imposition
of capital punishment, as adopted by the General Assembly effective October 19,
1981, and in the context of the arguments raised herein, does not violate the Eighth
and Fourteenth Amendments to the United States Constitution or any provision of
the Ohio Constitution.”
{¶ 91} Wesson also argues that Ohio's death penalty statutes violate international law
and treaties and therefore offend the Supremacy Clause of the U.S. Constitution.
However, we have “rejected the argument that Ohio's death penalty statutes are in
violation of treaties to which the United States is a signatory, and thus offend[ ] the
Supremacy Clause of the United States Constitution.” State v. Bey, 85 Ohio St.3d
487, 502, 709 N.E.2d 484 (1999).
{¶ 92} These propositions of law are overruled.
Wesson, 137 Ohio St. 3d at 578.
This claim fails because Wesson has not, and cannot, show that the state court’s decision
is contrary to, or an unreasonable application of, “clearly established Federal law” under
AEDPA’s § 2254(d)(1). 28 U.S.C. § 2254(d)(1); see also Wright v. Van Patten, 552 U.S. 120,
125
125 (2008) (reversing grant of habeas relief because no Supreme Court decision had “squarely
address[ed]” the issue presented or “clearly establish[ed]” law that applied to the facts of the
case). The Supreme Court has declared that “it is settled that capital punishment is constitutional
. . . .” Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015); see also Gregg v. Georgia, 428 U.S. 153,
177 (1976). And the Sixth Circuit repeatedly has upheld the constitutionality of Ohio’s death
penalty scheme in particular, rejecting the very claims Wesson asserts here. See, e.g., Beuke v.
Houk, 537 F.3d 618, 652-53 (6th Cir. 2008); Buell v. Mitchell, 274 F.3d 337, 367-76 (6th Cir.
2001); Coleman v. Mitchell, 268 F.3d 417, 453 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486,
539 (6th Cir. 2000); Jamison v. Collins, 100 F. Supp. 2d 647, 759-67 (S.D. Ohio 2000).
Accordingly, the Ohio Supreme Court’s decision was neither contrary to, nor an
unreasonable application of, Supreme Court precedent.
CERTIFICATE OF APPEALABILITY ANALYSIS
The Court must now determine whether to grant a Certificate of Appealability (“COA”)
for any of Wesson’s grounds for relief. The Sixth Circuit has determined that neither a blanket
grant nor a blanket denial of a COA is an appropriate means by which to conclude a capital
habeas case as it “undermine[s] the gate keeping function of certificates of appealability, which
ideally should separate the constitutional claims that merit the close attention of counsel and this
court from those claims that have little or no viability.” Porterfield v. Bell, 258 F.3d 484, 487
(6th Cir. 2001); see also Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001) (remanding motion for
certificate of appealability for district court’s analysis of claims). Thus, in concluding this
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Opinion, this Court now must consider whether to grant a COA as to any of the claims Wesson
presented in his Petition pursuant to 28 U.S.C. § 2253.
That statute states in relevant part:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals from -(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court . . .
(2) A certificate of appealability may issue under paragraph (12) only if the applicant
has make a substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253. This language is identical to the requirements set forth in the pre-AEDPA
statutes, requiring the habeas petitioner to obtain a Certificate of Probable Cause. The sole
difference between the pre- and post-AEDPA statutes is that the petitioner must now
demonstrate he was denied a constitutional right, rather than the federal right that was required
prior to AEDPA’s enactment.
The United States Supreme Court interpreted the significance of the revision between the
pre- and post-AEDPA versions of that statute in Slack v. McDaniel, 529 U.S. 473 (2000). In that
case, the Court held that § 2253 was a codification of the standard it set forth in Barefoot v.
Estelle, 463 U.S. 880 (1983), but for the substitution of the word “constitutional” for “federal” in
the statute. Id. at 483. Thus, the Court determined,
[t]o obtain a COA under § 2253(c), a habeas prisoner must make a substantial
showing of the denial of a constitutional right, a demonstration that, under Barefoot,
includes showing that reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the
issues presented were “adequate to deserve encouragement to proceed further.”
Id. at 483-04 (quoting Barefoot, 463 U.S. at 893 n.4).
127
The Court went on the distinguish the analysis a habeas court must perform depending
upon its finding concerning the defaulted status of the claim. If the claim is not procedurally
defaulted, then a habeas court need only determine whether reasonable jurists would find the
district court’s decision “debatable or wrong.” Id. at 484. A more complicated analysis is
required, however, when assessing whether to grant a COA for a claim the district court has
determined is procedurally defaulted. In those instances, the Court opined, a COA should only
issue if “jurists of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id.
After taking the above standards into consideration, the Court finds as follows:
The Court will not issue a COA for grounds for relief: Two (trial counsel ineffectiveassistance / guilt phase, sub-claim regarding impeachment of Mary Varhola); Three (trial
counsel ineffective-assistance / mitigation phase; sub-claims regarding prison records and expert,
lay witnesses, Wayne Wesson’s criminal record, and expert on link between Wesson’s
limitations and crimes); Five (appellate counsel ineffective-assistance); and Six (constitutionality
of death penalty). No jurist of reason would debate the Court’s conclusions on these claims.
No COA will issue for grounds for relief: Two (trial counsel ineffective-assistance / guilt
phase, excluding sub-claim regarding impeachment of Mary Varhola); and Three (trial counsel
ineffective-assistance / mitigation phase of trial; sub-claims regarding Wesson’s efforts to
redeem himself and FASD expert). These grounds are unequivocally procedurally defaulted.
The Court will issue a COA for the following grounds for relief: One (Miranda rights),
as a reasonable jurist could debate the Court’s conclusions regarding this claim.
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CONCLUSION
For the foregoing reasons, this Court denies Wesson’s Amended Petition for Writ of
Habeas Corpus (Doc. 36) as to all grounds for relief with the exception of his fourth ground and
the related claim of ineffective assistance of trial counsel under the third ground, which it
reserves for judgment until such time that it conducts an evidentiary hearing on those claims as
stated above. Wesson’s Motion for Evidentiary Hearing (Doc. 47) is therefore granted as to
those claims only and denied as to all other claims.
The Court further certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this
decision could be taken in good faith as to Wesson’s first ground for relief, and the Court issues
a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate
Procedure 22(b) as to that claim only. As to all remaining claims, the Court certifies that,
pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith,
and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c);
Fed. R. App. P. 22(b).
IT IS SO ORDERED.
March 5, 2020
Date
s/Dan Aaron Polster
Dan Aaron Polster
United States District Judge
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