Carter v. Mitchell

Filing 163

POST-REMAND REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus Objections to R&R due by 1/31/2013. Signed by Magistrate Judge Michael R Merz on 1/14/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
CEDRIC CARTER,
:
Petitioner,

Case No. 1:98-cv-853
:

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vsBETTY MITCHELL, Warden,
:
Respondent.

POST-REMAND REPORT AND RECOMMENDATIONS
This capital habeas corpus case is before the Court on remand from the Sixth Circuit,
Carter v. Mitchell, 693 F. 3d 555 (6th Cir. 2012). After the mandate issued (Doc. No. 157), the
Magistrate Judge noted to the parties that he would consider the remanded issues ripe for
decision unless any party expected to seek certiorari (Doc. No. 158). Neither party did and the
time for doing so has expired. District Judge Rose has confirmed that the case continues to be
referred to the undersigned Magistrate Judge (Doc. No. 162). Neither party has requested to
submit any additional briefing on the remanded issues. Thus the case is ripe for decision on the
remanded issues.
This Court had denied all fifty claims in Carter’s Petition, either on the merits or as
procedurally defaulted (Doc. No. 137, adopting Report and Recommendations on the merits (the
“Report”) Doc. No. 129). This Court granted a certificate of appealability on Ground for Relief
27, but the Court of Appeals affirmed our decision dismissing that claim on the merits. Carter,
693 F.3d at 563.
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The Sixth Circuit expanded the certificate of appealability to include the question
whether this Court properly dismissed Grounds for Relief Twenty-Eight and Twenty-Nine
(ineffective assistance of trial counsel) and Fifty (ineffective assistance of appellate counsel) as
procedurally defaulted. Id. at 561. It concluded that we had correctly done so as to Ground
Fifty, but had erred in doing so as to Grounds Twenty-Eight and Twenty-Nine. Id. at 5691. The
case was remanded “for the district court to consider whether Carter is entitled to a writ of
habeas corpus based on counsel’s performance at the penalty phase of the trial or the trial court’s
exclusion of evidence at the mitigation stage.” Id. In particular, the Circuit Court directed us “to
determine in the first instance whether Carter is entitled to the writ based on his counsel’s
performance at the mitigation stage of the proceedings.” 693 F. 3d at 563.

Grounds for Relief Twenty-Eight and Twenty-Nine As Pled

Grounds Twenty-Eight and Twenty-Nine, as pled in the Petition, read:
TWENTY-EIGHTH CAUSE OF ACTION
Petitioner’s sentence of death is void or voidable because he
was denied effective assistance of counsel in the preparation
and presentation of the mitigation phase of his capital trial in
violation of his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.
122. In the landmark case of Strickland v. Washington,
466 U.S. 667 (1984), the Supreme Court held that in order
to establish a claim of ineffective assistance of counsel, a
Petitioner must show that his/her counsel made such
serious errors that he/ she was not functioning as the
"counsel" guaranteed by the Sixth Amendment, and that
counsel's deficient performance prejudiced the defense by
1

Judge Sutton dissented from the procedural default ruling on Grounds Twenty-Eight and Twenty-Nine. Carter,
693 F.3d at 570-72. The majority opinion is, however, the law of the case, binding on this Court on remand. Thus
no re-analysis of the procedural default arguments will be undertaken here.

2

undermining the trial result. Under the first prong of the
Strickland test, a Petitioner must demonstrate that his
counsel's performance fell below an objective standard of
reasonableness based upon all of the circumstances
surrounding the case. See Id.. at 688. Judicial scrutiny of
counsel's performance m u s t be highly deferential, and a
"fair assessment of attorney performance requires that
every
effort be made to eliminate the distorting
effects of hindsight" and to evaluate the challenged conduct
from counsel's perspective at the time of the conduct. Id.
at 689.
In determining whether or not counsel's
performance was deficient, the Court must indulge a
strong presumption that counsel's conduct fell within
the wide range of reasonable professional assistance.
See Id.
123. In order to satisfy the second “prejudice” prong of the
Strickland test, a Petitioner must show that a "reasonable
probability" exists that, but f or his counsel's errors, the result
of the trial would have been different.
See Id . at 694. A
showing by this Petitioner that the alleged errors in the
mitigation phase of his trial had "some conceivable" effect
on the outcome of the proceeding is sufficient to meet this
standard. See Id . at 693. However, by the same token, this
Petitioner need not demonstrate that his counsel's conduct
"more likely than not" altered the trial's outcome in order
to establish prejudice. See Id. This Petitioner will meet his
burden if he shows that the decision reached by the jury
during the
mitigation phase
of his
trial would
"reasonably likely have been different absent the errors."
See Id. at 695. See also United States v. Cordell, 924 F.2d 614
(6th Cir. 1991); United States v. Wirsing, 719 F.2d 859 (6th Cir.
1983); and Linton v. Perini, 656 F.2d 207 (6th Cir. 1981), cert.
denied, 454 U.S. 1162 (1982).
124. Our own Sixth Circuit Court of Appeals reversed a death
penalty sentence when it found that counsel had made virtually no
attempt to prepare and present effective mitigation at the
sentencing phase of the trial. Glenn v. Tate, 71 F.3d 1204 (6th Cir.
1995). In a matter remarkably similar to the matter at bar, the
court recognized that “it was obvious, or should have been, that the
sentencing phase was likely to be ‘the stage of the proceedings
where counsel can do his or her client the most good.’” In accord
with Kubar v. Thieret, 867 F. 2d 351, 369 (7th Cir.) cert. denied,
493 U.S. 874 (1989). In the Glenn case counsel failed to make any
significant preparations for the sentencing phase. This was
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particularly egregious because there was a significant medical
history which showed that Glenn had a neurological brain
impairment.
Since Glenn’s counsel failed to make any
preparations for the sentencing phase until after the guilty finding,
the court found such inaction to be objectively unreasonable. “To
save the difficult and time consuming task of assembling
mitigation witnesses until after the jury’s verdict in the guilt phase
almost insures that witnesses will not be available.” Citing Blanco
v. Singletary, 943 F.2d 1477, 1501-02 (11th Cir. 1991), cert.
denied, 504 U.S. 943 (1992). The court found that only one of
Glenn’s attorney’s [sic] did any preparation at all for the mitigation
phase, and his efforts were largely misdirected. He attempted to
prepare a video tape which tried to show a day in the life of the
defendant.
125. The trial court held such evidence to be inadmissible, so that
in fact very little if any mitigation was presented. The Court
concluded that there was a wealth of evidence present which
showed Glenn’s brain damage, his unfortunate proclivity to follow,
and numerous individual’s [sic] who were willing to come forward
on his behalf. The similarities to the instant matter are striking.
126. Trial counsel’s initial error in the matter at bar, was the
failure to obtain a mitigation expert. Instead, counsel requested the
appointment of a psychologist from the local court clinic. Dr.
David Chiappone, while an adroit psychologist, had virtually no
experience in the preparation and presentation of mitigation
material in a death penalty case. (Sentencing Hearing, p. 1217).
Furthermore, the Ohio Public Defender has long provided
mitigation specialists to assist appointed counsel in the long and
grueling gathering of information that becomes a biography of the
accused’s life. Dr. Chiappone simply scratched the surface of what
should have been presented.
127. Petitioner’s history disclosed that he is borderline mentally
retarded. (Sentencing Hearing p. 1199). Furthermore, Dr.
Chiappone opined that Petitioner had had a number of head
injuries which led him to believe that there may have been a
neurological impairment. “I think we have to raise the issue of
organic involvement meaning some dysfunction in the brain that is
not entirely clear what is going on.” (Sentencing Hearing p. 1203).
Unfortunately no effort was made to acquire a cat-scan or other
neurological examinations to present the existence or nonexistence
of an organic reason for Petitioner’s behavior.

4

128. Petitioner’s school records from Selma, Alabama were
partially made available to Dr. Chiappone. These records
disclosed that national testing had been performed on Petitioner.
These tests serve as a strong indicator of a student’s mental
proclivities and accurately predict retardation, attention deficits,
anti-social behavior and overall ability to learn. No expert in
education was consulted or asked to interpret the score available.
Since these tests are nationally given, a local education expert
would certainly have been available to discuss the interpretation of
the scores.
129. Petitioner’s formative years were spent in Selma, Alabama.
No effort was made to talk with his teachers or the school officials
to confirm the ongoing problems he was experiencing. A wealth
of information was available to be obtained from these individuals
and telephone depositions could have been taken to preserve their
testimony for the trial.
130. Another underlying theme in Petitioner’s development was
his addiction to drugs at a very early stage in his life. Although
familiar in a very general sense with the effects of cocaine on an
individual, an expert in this area could have provided a more
thorough understanding of the impact of cocaine on this Petitioner.
131. While the trial was proceeding, Petitioner apparently had a
Social Security claim wending its way through the system. A
social security claim will by necessity require a variety of physical
and mental examinations in order for the claimant to obtain
benefits. (Post-conviction Petition Exh. B). That document
reflects that doctors and other trained personnel decided that
Petitioner was disabled. Further, it reflects Social Security’s
understanding that his condition may not improve. It certainly
would have been essential to the mitigation phase to provide this
very valuable information to the jury.
132. Counsel for Petitioner failed to obtain psychiatric records for
treatment that Petitioner had undergone as a child. (Mitigation
Hearing p. 1197). Present counsel can only conjecture on what
would have been contained within these records, but surely the
failure to obtain them is not justifiable.
133. Petitioner’s family was not called to the stand to recount to
the jury the problems that he had while growing up. To argue that
such testimony would have been cumulative shows a lack of
understanding of the process of mitigation. Petitioner’s mother
was not called to the stand although she stood ready to appear.
5

(Post conviction Petitioner Exh. C) Testimony during the trial
reflected the existence of a sister and a brother as well. None of
these individuals were called to plead for Petitioner’s life. Instead,
counsel opted for a summary of interviews obtain by Dr.
Chiappone and his assistant. This sterile and disjointed approach
to mitigation gave the jury nothing to hold onto.
134. Dr. Chiappone’s presentation was less than effective. On
numerous occasions he had to be told to speak up so that the jurors
could hear his testimony. (Mitigation Hearings pps. 1182, 1189,
and 1190). In addition his testimony was extremely difficult to
follow and his conclusions equally confusing. (Post conviction
petition Exh. B. Statement of R. Michael Reinstatler, Juror
Foreman).
135. In applying the above to the matter at bar, the actions of
Petitioner’s counsel from beginning to the end of the mitigation
phase constituted ineffective assistance. Even if we assume that
Dr. Chiappone’s diagnosis of Petitioner as borderline mentally
retarded. With possible organic dysfunction in the brain, substance
dependent, and an anti-social personality were accurate, trial
counsel did little to effectively present this to the jury. Trial
counsel should have investigated these issues with Petitioner’s
family members and friends to enable Dr. Chiappone to present his
testimony in the best light possible. Similarly, Petitioner’s mother
should have been called and engaged in a lengthy conversation
about her son’s upbringing.
136. In addition, trial counsel gratuitously elicited information
about Petitioner’s dark side. Petitioner was revealed by his own
witness to be abusive toward women, a bully who brutally imposed
his will on those in the streets, a person who had difficulty
controlling his anger, a person fascinated with guns, and finally as
someone who tortured and killed animals. (Mitigation Hearing
pps. 1191, 1193, 1223). Disclosure of these tendencies could only
have frightened the jury and justified their verdict. By providing
this type of information, trial counsel for Petitioner included nonstatutory aggravating factors to be considered by the jury.
137. Dr. Chiappone also disclosed that Petitioner engaged in selfmutilation. (Mitigation Hearing p. 1193). People who self
mutilate may possess suicidal ideation and some believe that it
may be indicative of sexual abuse as a child. None of this was
addressed in other than cursory fashion at the hearing and certainly
was not a factor in Dr. Chiappone’s conclusions.

6

138. Without the necessary testimony and background from
friends and family members, the jury could only look to Dr.
Chiappone for such information. As a result, Dr. Chiappone was
not effective and was successfully attacked by the prosecutor. In
its written opinion sentencing Petitioner to death, the court was
less than impressed with Dr. Chiappone’s efforts. In one sentence
the Court opines that while Petitioner’s upbringing may not have
been exemplary, it did not explain his later behavior in life.
(Opinion of Judge Norbert Nadel p. 15).
139. In Glenn the Court noted that the reason for the paucity of
mitigation evidence was the lack of preparation. The Court
observed:
The lawyers made no systematic effort to acquaint
themselves with their client’s history. They never spoke
to any of his numerous brothers and sisters. They never
examined his school records. They never examined his
medical records (including an emergency room record
prepared after he collapsed in court one day) or records of
mental health counseling they knew he had received.
They never talked to his probation officer or examined his
probation records. And although they arranged for tests,
some months before the start of the trial, to determine
whether he was competent to stand trial, they wait until
after he had been found guilty before taking their first step
– or misstep as we shall explain presently – toward
arranging for expert witnesses who might have presented
mitigating evidence on John Glenn’s impaired brain
function.
In addition, Glenn’s counsel did not seek to obtain defense experts
of their own to present evidence on their client’s impaired brain
function. Instead they allowed the court to appoint joint experts
whose results were given to the jury. These reports were of no
benefit to Glenn and went into the jury room without being
questioned. The Sixth Circuit held that no competent trial counsel
would have allowed this to occur. If counsel had done their
homework ahead of time Glenn’s interests would have been better
protected. The instant case is no different.
140. Finally, counsel for Petitioner was ineffective in the closing
argument of the mitigation phase. The closing argument is what
ever [sic] good defense lawyer lives for. Defense counsel must
evoke knowledge and facility with the governing law and facts at
7

issue. Mitigating factors raised throughout the proceedings must
be forcefully recapitulated. A clear explanation of the statutory
weighing process, with emphasis on the weight of evidence in
mitigation must be made.
141. During the course of his closing argument, defense counsel
provided a disjointed and repetitive narrative.
Since the
preparation and presentation of the mitigation lacked cohesion, the
necessary experts and required volume of information, the closing
argument could not hope to rise above the overall lack of effort and
thought which went into it.
142. All of the errors alluded to above more than meet the first
prong of the Strickland test that counsel’s performance was
deficient. The combination and cumulative effect of these errors
undermined the reliability of the death sentence imposed. Defense
counsel’s efforts undermined the process and severely reduced
Petitioner’s chances for a life sentence. This prejudice was
sufficient to meet the second prong of the Strickland test.
143. In sum, the total effort and presentation of defense counsel
during the mitigation phase of this trial was ineffective under the
Strickland decision. This court should determine that the sentence
of death was inappropriate and that counsel’s efforts fell below the
standard now recognized.
TWENTY-NINTH CAUSE OF ACTION
Petitioner’s death sentence is void or voidable because evidence
which should have been presented to the jury was excluded
due to the ineffectiveness of trial counsel in violation of the
Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution.
144. The United States Supreme Court has consistently held fast
to the theme that mitigating evidence should not be precluded. The
Eighth Amendment requires that a capital sentence “be allowed to
consider on the basis of all relevant evidence not only why a death
sentence should be imposed, but also why it should not be
imposed.” Jurek v. Texas, 428 U.S. 262, 271 (1976). In Lockett v.
Ohio, 438 U.S. 586, the Chief Justice wrote that the Eighth
Amendment and Jurek require,
that the sentence, in all but the rarest kind of capital case,
not be precluded form considering as a mitigating factor,
any aspect of a defendant’s character or record and any of
8

the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.
Id. at 604.
145. As discussed in the Cause of Action above, trial counsel’s
lack of effort in the preparation of the mitigation phase of the trial,
excluded viable and effective information from being presented to
the jury.
146. A failure by trial counsel to actually investigate his options
regarding presentation of mitigating circumstances, and failure to
make thoughtful, strategic choices, is objectively unreasonable.
Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991), cert.
denied, 503 U.S. 952 (1992). For these reasons Petitioner’s death
penalty is void.
(Petition, Doc. No.1, pp. 37-46.)

Scope of the Issues on Remand

In its decision in this case, the Sixth Circuit recognized the general rule that claims
presented in habeas must be the same claims that were presented to the state courts.
"To fairly present a claim to a state court a petitioner must assert
both the legal and factual basis for his or her claim." Williams, 460
F.3d at 806; see Clinkscale, 375 F.3d at 437. In order to satisfy
this requirement, and avoid a procedural default, the petitioner's
federal habeas petition must be based on the same theory presented
in state court and cannot be based on a wholly separate or distinct
theory. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). For
example, in Wong, one of the grounds the petitioner asserted in
support of her petition for habeas relief was based on allegations
that she had received constitutionally ineffective assistance of
counsel. Id. at 319. In the state court proceedings Wong had
alleged only that counsel's performance was deficient for failing to
pursue an insanity defense. Id. at 319. However, in federal court,
Wong additionally alleged that counsel was constitutionally
ineffective for neglecting to undertake additional investigation into
whether an alternate expert might have concluded that she was
legally insane. Id. at 321. This Court held that the portion of the
9

claim based on not undertaking a complete investigation was
procedurally defaulted because Wong had not presented it to the
state courts. Id. at 322; accord Williams, 380 F.3d at 968
(holding that petitioner's claims to the state courts alleging
prosecutorial misconduct in improperly vouching for the
credibility of a witness were insufficient to preserve claims based
on other instances of prosecutorial misconduct).
Carter, 693 F.3d at 568-569.
Applying Wong, the Court went on to note that Carter’s 28th and 29th claims as pled were
broader than what he had presented to the state courts:
In his petition for habeas corpus to the federal district court,
Carter's twenty-eighth ground for relief asserts that he was denied
the effective assistance of counsel at the mitigation phase of his
trial. The claim goes into some additional detail about the
deficiencies of Dr. Chiappone's testimony and how, in Carter's
view, it was caused by his failure to perform a diligent inquiry into
Carter's background. Additionally, Carter also specifically raises as
part of this ground for relief counsel's failure to have his mother
testify. Similarly, Carter's twenty-ninth ground for relief raises the
issue of counsels' ineffectiveness leading to the exclusion of
evidence from the mitigation stage and, specifically, the trial
court's refusal to provide the jury with a transcript of Dr.
Chiappone's testimony.
Carter, 693 F.3d at 569.
Thus the facial breadth of these claims as pled in the Petition is narrowed by the Sixth
Circuit’s reading of what was fairly presented to the Ohio courts. It held:
Carter's twenty-eighth and twenty-ninth grounds for relief were
fairly presented to the state courts and are not based on new or
distinct theories insofar as they relate to the preparation of
Carter's mitigation expert and the failure of Carter's mother
to testify at his mitigation proceedings. [Emphasis added.] On
direct appeal to the Ohio Court of Appeals, Carter asserted in
Assignment of Error X that:
THE TRIAL COURT ERRED TO THE SUBSTANTIAL
PREJUDICE OF DEFENDANT-APPELLANT IN ENTERING A
SENTENCE OF DEATH WHEN DEFENDANT-APPELLANT
WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF
10

COUNSEL UNDER THE UNITED STATES CONSTITUTION,
AMENDMENT VI.
Issue 1. Has an accused been given effective assistance of counsel
when his defense attorneys, in the penalty phase, elicit testimony
from a mitigation expert when said testimony, taken as a whole, is
very unfavorable to the accused?
Issue 2. Has an accused been given effective assistance [of]
counsel when his attorneys, lacking much in mitigatory evidence,
fail to have the accused's mother testify on his behalf?
Similarly, Carter presented these issues in his direct appeal to the
Ohio Supreme Court as Propositions of Law number X and XI.
And, Carter raised these issues again in his petition for postconviction review as his Sixth, Ninth, and Eleventh Causes of
Action.
In his petition for habeas corpus to the federal district court,
Carter's twenty-eighth ground for relief asserts that he was denied
the effective assistance of counsel at the mitigation phase of his
trial. The claim goes into some additional detail about the
deficiencies of Dr. Chiappone's testimony and how, in Carter's
view, it was caused by his failure to perform a diligent inquiry into
Carter's background. Additionally, Carter also specifically raises as
part of this ground for relief counsel's failure to have his mother
testify. Similarly, Carter's twenty-ninth ground for relief raises the
issue of counsels' ineffectiveness leading to the exclusion of
evidence from the mitigation stage and, specifically, the trial
court's refusal to provide the jury with a transcript of Dr.
Chiappone's testimony. Therefore, because these claims were
raised through a complete round of Ohio's appellate process, they
are not procedurally defaulted. Because the district court erred in
concluding otherwise, we remand the matter to the district court
for it to consider the merits of these claims in the first instance and
whether either entitles Carter to a writ of habeas corpus.
Carter, 693 F.3d at 569.
Thus this Court’s decision on the remanded issues is limited to those claims the Sixth
Circuit found were fairly presented to the state courts. It does not include, for example, the claim
that counsel’s rhetorical effort in closing argument was below standard (Petition, ¶¶ 140-141) or
the failure to obtain a mitigation expert (Id. at ¶ 126) or the failure to offer proof that persons
11

who self-mutilate “may possess suicidal ideation . . . [or] that it may be indicative of sexual
abuse as a child” Id. at ¶ 137.

Standard of Review to be Applied to Remanded Issues

When a habeas court decides a constitutional claim on the merits, its standard of review is
de novo if the state courts did not decide the merits. On the other hand, if the state courts
decided the merits, we must defer to their decision unless it was contrary to or an “objectively
unreasonable” application of clearly established United States Supreme Court precedent. Bell v.
Howes, ___ F.3d ___, No. 11-1046, 2012 WL 6600364 *5, 2012 U.S. App. LEXIS 25851 (6th
Cir. Dec. 19, 2012), quoting Williams v. Taylor, 529 U.S. 362, 409 (2000); see also 28 U.S.C. §
2254(d)(1); Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 785 (2011); Brown v. Payton,
544 U.S. 133, 141 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002).

The State Court Decisions on the Remanded Issues of Ineffectiveness with Respect to (1)
Dr. Chiappone’s Testimony and (2) Failure to Call Carter’s Mother as a Witness

As the Sixth Circuit found, Carter’s claim about ineffectiveness in presenting Dr.
Chiappone’s testimony was presented first on direct appeal to the Ohio Court of Appeals2 for the
First Appellate District which held:
Carter alleges that he was denied the effective assistance of
counsel as a result of five different actions or inactions of defense
counsel during the guilt and penalty phases of the trial. [Including,
as to the penalty phase]:

2

Because the murder of Frances Messinger occurred before January 1, 1995, the direct appeal was in the first
instance to Ohio’s intermediate court of appeals. For capital offenses after that date, the appeal is directly to the
Ohio Supreme Court.

12

(4) eliciting unfavorable testimony from a mitigation expert during
the penalty phase of the trial;
(5) failure to have Carter’s mother testify at trial.
In order to sustain a claim of ineffective assistance of counsel, an
appellant must demonstrate that counsel's representation fell below
an objective standard of reasonableness and that he was prejudiced
as a result of his counsel's actions or inaction. Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052. The United
States Supreme Court recently revisited the prejudice component
of the Strickland test in Lockhart v. Fretwell (1993), 506 U.S. 364,
----, 113 S.Ct. 838, 843. There, the lead opinion held that a
showing of prejudice requires more than demonstrating that the
outcome of the trial would have been different but for counsel's
error. The appellant must also show that “counsel's performance
renders the result of the trial unreliable or the proceeding
fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. at ----, 113
S.Ct at 844. In examining the actions of trial counsel, courts “must
indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance * * *.” Strickland
v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. See, also, State
v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
***
Carter also claims that he was prejudiced when trial counsel
elicited unfavorable testimony from a mitigation expert during the
penalty phase of the trial. While we agree that many of the
statements made by the expert did not cast Carter in a positive
light, the testimony, when considered in its entirety, demonstrated
that Carter had lived, at times, a painful and tragic life. Defense
counsel obviously hoped that such information would convince the
jury that Carter's actions were a result of social and mental
problems that he had experienced during his life. In our view,
therefore, defense counsel acted competently and in the best
interest of Carter.
In his final claim, Carter maintains that defense counsel should
have had his mother testify during the trial. Without knowing what
testimony might have been given, we are unable, based upon the
state of this record, to say that trial counsel erred when he failed to
call Carter's mother as a witness at the trial. Her testimony may
have been unfavorable to Carter's defense or it may have conflicted
with other testimony that was presented to the jury.

13

Based upon our review of the record, we are not persuaded that
trial counsel's representation of Carter fell below an objective
standard of reasonableness or that Carter was afforded a trial that
was unreliable or fundamentally unfair. Assignments of error two,
three and ten are, therefore, overruled.
State v. Carter, No. C-920604, 1993 WL 512859 *15-16 (Ohio App. 1st Dist. Nov. 3, 1993).
Carter persevered on these two claims in the Ohio Supreme Court which affirmed.
Having repeated the Strickland standard, it held in summary fashion:
Carter claims that ineffective assistance of his trial counsel is
demonstrated by (1) counsel's failure to file a Crim.R. 13 motion to
consolidate his trial with that of Hill and Sims, and to subpoena
Hill to testify; (2) counsel's failure to obtain a firearms expert to
provide testimony reinforcing Carter's contention that he lacked
intent to kill; (3) counsel's presentation of a clinical psychologist
during the mitigation hearing whose testimony was mixed in
nature and included recitation of facts prejudicial to Carter; and (4)
counsel's failure to call Carter's mother to testify during the
mitigation hearing. None of these alleged deficiencies rises to the
level of prejudicial deficient performance, nor otherwise meets the
ineffective assistance of counsel criteria set forth above.
State v. Carter, 72 Ohio St. 3d 545 ¶ 29 (1995).
Carter then reiterated the claim about his mother’s testimony as part of his petition for
post-conviction relief under Ohio Revised Code § 2953.21. The First District Court of Appeals
decided this claim as follows:
Carter contended in his ninth claim for relief that he was denied the
effective assistance of counsel when defense counsel “exclude[d]”
his mother and his mother's live-in boyfriend from the courtroom
during the trial and failed to call his mother to testify as a witness
during the penalty phase of the trial. He offered in support of the
claim the affidavit of his mother, who attested to the specifics of
her exclusion from the courtroom and to the substance of her
testimony in mitigation had she been called to testify.
[Ruling on witness exclusion claim not repeated because not a
remanded issue.]

14

Nor are we persuaded by the challenge to defense counsel's
performance predicated upon counsel's failure to call Carter's
mother to testify during the penalty phase of the trial. In her
affidavit, Carter's mother offered the substance of her testimony in
mitigation had she been called to testify. The essence of her
proposed testimony regarding Carter's developmental, educational,
interpersonal, and substance-abuse problems was presented
through Carter's unsworn statement and the testimony of the other
mitigation witnesses. Thus, the evidentiary material offered in
support of this aspect of Carter's ninth claim for relief does not
raise a reasonable probability that, but for this omission of counsel,
the result of the penalty phase of the trial would have been
different. See Bradley, supra, paragraph three of the syllabus.

Based upon the evidence of record and that submitted on the claim,
we conclude that Carter has failed to demonstrate that defense
counsel violated an essential duty in counseling adherence to the
separation order or that counsel prejudiced him by failing to elicit
mitigation evidence from his mother. We, therefore, hold that the
common pleas court properly denied Carter's ninth claim for relief
without an evidentiary hearing.
State v. Carter, No. C-960718, 1997 WL 705487 *6-7 (Ohio App. 1st Dist. Nov. 14, 1997)

The State Court Decision on the Remanded Issue of the Transcript of Dr. Chiappone’s
Testimony
Carter presented this claim on direct appeal as an instance of trial court error, not
ineffective assistance of trial counsel. The court of appeals decided the claim is as follows:
Carter, in his seventh assignment of error, alleges that the trial
court committed error when it refused to provide the jury with a
transcript of the testimony of Dr. David Chiappone, a clinical
psychologist and mitigation expert called by Carter during the
penalty phase of his trial. Carter maintains that before the jury
could properly rule on whether to recommend the sentence of
death, the trial court had a duty to provide each juror with
information that might have resolved questions and uncertainties
about testimony or any other aspect of the case. This assignment is
overruled.
The trial court's response to the jury's request was as follows:
15

[O]ur policy is that the proceedings from which this
testimony came from is a sentencing proceeding which
was a relatively short proceeding and, therefore, our
policy is not to give you or reread testimony. The reason
is it emphasizes-first of all, it was a short proceeding. It
took place on Monday a short time ago and, secondly, it
places an unfair emphasis to you on one part of the
testimony as opposed to another. So for that reason I will
not reread the testimony.
T.p. 1313-1314.

“After jurors retire to deliberate, upon request from the jury, a
court in the exercise of sound discretion may cause to be read all or
part of the testimony of any witness * * *.” State v. Davis (1991),
62 Ohio St.3d 326, 340, 581 N.E.2d 1362, 1375; State v. Berry
(1971), 25 Ohio St.2d 255, 267 N.E.2d 775, paragraph four of the
syllabus.

In his brief on appeal, Carter argues, almost exclusively, that
Chiappone's testimony was a disaster for the defense and that his
opinion obliterated any mitigating evidence heard by the
jurors.FN2 It is difficult to comprehend, therefore, why Carter
would want such negative testimony reinforced in the minds of the
jury or, for that matter, how he was prejudiced by the trial court's
refusal to reread that portion of the testimony. In fact, the trial
court may have reasonably concluded that Chiappone's statements
were inflammatory and that a second reading of his testimony
would be detrimental to the presentation of Carter's case in
mitigation. In any event, we are unable to say, based on the record
before us, that the trial court abused its discretion when it refused
the jury's request to reread Chiappone's testimony.
FN2. Chiappone stated, inter alia, that Carter was a bully;
that he tortured and killed animals when he was a child;
that he had a fascination with guns; and that he was lazy
and did not wish to follow the rules imposed by civilized
society.
Carter, 1993 WL 512859 at *11.
Carter persevered with this claim on further appeal to the Ohio Supreme Court which
16

held:
Failure to Provide Transcript of Psychologist Testimony
[34] On the second day of its deliberations concerning the penalty
recommendation, the jury requested that it be provided with a
transcript of the testimony of the psychologist who testified in
Carter's behalf at the mitigation hearing. The trial court refused to
provide such a transcript. We are called upon to review this refusal
pursuant to an abuse-of-discretion analysis. See State v. Berry
(1971), 25 Ohio St.2d 255, 54 O.O.2d 374, 267 N.E.2d 775,
paragraph four of the syllabus (“After jurors retire to deliberate,
upon request from the jury, a court in the exercise of sound
discretion may cause to be read all or part of the testimony of any
witness * * *.”). See, also, State v. Davis, supra, 62 Ohio St.3d at
340, 581 N.E.2d at 1375. Because defense counsel did not object
to the trial court's refusal to provide the transcript, reversal on the
basis of this proposition would require a finding of plain error.

[35] We do not find on this record that the trial court abused its
discretion in refusing to provide a copy of the transcript, and
certainly do not find plain error. Carter argues that the court's
refusal prejudiced him in that it was likely that the jury
remembered only the vivid and negative aspects of the
psychologist's testimony, e.g., that the defendant's history included
sadistic behavior, and that the jury asked for the transcript so that it
might have an opportunity to review the more technical, and
favorable, portions of the psychologist's testimony. This contention
is purely speculative, and constitutes much too thin a reed to
support reversal of Carter's death sentence.
Carter, 72 Ohio St. 3d 545 at ¶¶ 34-35.
Carter continued to press the failure to provide the transcript claim in post-conviction as
his eleventh claim for relief. The Court of Appeals decided the claim as follows:
In his eleventh claim for relief, Carter challenged the trial court's
refusal to accede to the jury's request, during its deliberations, for a
transcript of the testimony of a clinical psychologist called by the
defense to testify during the penalty phase of the trial. In support of
his claim, Carter offered evidence dehors the record in the form of
the deposition of the jury foreman. The foreman testified in his
deposition that the jury had requested a written transcript of the
psychologist's testimony to aid in its deliberations, because the
17

jurors had experienced some difficulty in hearing and
understanding the psychologist's testimony at trial, due to
deficiencies either in the courtroom's transmission equipment or in
the witness's manner of presentation.
The submission of evidence dehors the record in support of a
postconviction claim will not preclude the application of the
doctrine of res judicata to deny the claim, when the claim could
fairly have been determined on direct appeal from the judgment of
conviction, based upon information contained in the trial record.
Cole, supra, syllabus; Perry, supra, paragraph nine of the syllabus;
State v. Mills (Mar. 15, 1995), Hamilton App. No. 930817,
unreported.
The record of the proceedings at trial demonstrates that, at various
points in the psychologist's testimony, jurors' complaints regarding
audibility prompted the trial court to admonish the witness to raise
his voice, to adjust his posture relative to the microphone, and to
repeat portions of his testimony. The Ohio Supreme Court, in the
direct appeal taken by Carter from his judgment of conviction,
addressed the challenge presented by Carter in his eleventh claim
for relief and concluded that the trial court did not abuse its
discretion in refusing to provide the jury with a transcript of the
psychologist's testimony to aid in its deliberations. Carter, supra at
560, 651 N.E.2d at 978.
The jury foreman's deposition submitted by Carter in support of his
eleventh claim for relief contains no suggestion that the foreman
would have voted against recommending the imposition of the
death penalty had he been given an opportunity to review a
transcript of the psychologist's testimony during deliberations. The
deposition, instead, established nothing more than what the trial
record amply demonstrated. We, therefore, hold that Carter's
eleventh claim for relief was subject to dismissal under the
doctrine of res judicata, when the claim could have been, and was
in fact, fairly determined on direct appeal without resort to
evidence dehors the record.
Carter, 1997 WL 705487 at *4-5.
In sum, the Ohio courts decided all of the remanded issues on the merits. This Court
therefore reviews the merits in light of AEDPA deference.
On Carter’s Motion, this Court conducted an evidentiary hearing October 20, 2005, and

18

thereafter set a schedule for briefing on the merits (Briefing Schedule, Doc. No. 118).
Petitioner’s arguments in his Trial Brief (Doc. No. 124) and Reply Brief (Doc. No. 128) may
thus be taken as his final statements on the merits of these remanded issues.
Of course, long after the Magistrate Judge conducted the evidentiary hearing and filed the
Report in 2006, the United States Supreme Court decided in Cullen v. Pinholster, 563 U.S. ___,
131 S.Ct. 1388 (2011), that a federal court’s review of a state court decision under 28 U.S.C. §
2254(d)(1) is strictly limited to “review of the state court record,” and that evidence acquired
through use of an evidentiary hearing may not be considered. Id. at 1399. Therefore Petitioner’s
arguments in his Trial Brief must be construed by distinguishing what was already in the state
court record and what was added to the record in this Court3.
Carter’s argument in his Post-Hearing Brief is made directly on the merits of Grounds
Twenty-Eight and Twenty-Nine, as if there were no question of AEDPA deference and this
Court were considering the merits de novo. In addition, much of the argument is premised on
evidence introduced in this Court, which the Court is prohibited by Pinholster from considering.
The entire argument on these two Grounds made in the Trial Brief (Doc. No. 124) is reproduced
in the Appendix to this Report. No additional argument on either Ground for Relief is made in
the Reply Brief (Doc. No. 128). This Court must then conduct its review under 28 U.S.C. §
2254(d)(1) without the assistance of much argument from Petitioner.

3

Because this case had become final in this Court and appealed to the Sixth Circuit long before Pinholster was
decided, habeas counsel had no occasion to attempt a successive post-conviction petition in the state courts to
present the evidence acquired in federal court. No such request has been made since this Court re-acquired
jurisdiction by issuance of the mandate October 31, 2012 (Doc. No. 157).

19

Merits Analysis on Claim of Ineffectiveness in Use of Dr. Chiappone

The first of the remanded issues is whether trial counsel provided ineffective assistance in
their use of expert witness David Chiappone.
Dr. David Chiappone4 is a clinical psychologist who testified at the mitigation phase of
Carter’s trial. The asserted mispresentation of this testimony is the focus of the first remanded
issue.
Dr. Chiappone testified that Carter grew up in a blended family; his father was not
available from early on; his relationships with all family members had been strained; his father
had been physically abusive and was quite angry toward Carter thinking that Carter was not his
son; Petitioner’s mother used corporal punishment, hitting him with a belt if he misbehaved; his
mother encouraged him to fight with peers when he was having problems with them; Carter’s
sister’s boyfriend introduced him to drugs at about age thirteen; basically Petitioner’s life in the
past several years had been one of abusing drugs. Carter had few friends through school and he
was teased and called retarded, dumb, stupid. Carter is an individual of limited intellectual
ability and a slow learner; he did not do all that bad academically from kindergarten until about
the sixth grade, but by age thirteen he was using drugs, his grades dropped precipitously, and he
was being truant. Carter left school at age sixteen. Vocationally, Carter had not been involved
with much work experience. As a youngster, Carter was into burning animals, would shoot a BB
gun at animals, and use firecrackers to hurt animals. Carter had also been physically abusive
towards other people. Carter’s mother described him as being a troubled youngster, hard to
understand, impulsive, and clumsy. A neighbor in Selma, Alabama, where Carter grew up, said
4

Throughout his pleadings in state court as well as this Court, Mr. Carter refers to psychologist Dr. Chiappone. The
trial transcript reflects that the name of the psychologist is spelled “Chapone”. See, Trial Tr. A 1178. To maintain
consistency, this Court will refer to Dr. Chiappone.

20

she believed he felt unloved. Carter’s aunt and grandmother described him as being oppositional
and dominating, a bully; other family members described him as easily influenced by others.
(Trial Tr. 1178-1200).
Carter’s medical records indicate he was slow in some developmental milestones. He
grew up in a family setting in which he did not receive appropriate protection and his history of
various injuries makes it clear he had not been taken care of. Testing indicated that Carter is of
borderline mental retarded intellectual ability and that he possibly has a learning disorder. Id.
Dr. Chiappone also testified that Carter has an impulsive style; his diagnoses would be
borderline mentally retarded, some organic dysfunction in his brain, substance dependent in that
he was abusing several substances, and anti-social personality. Carter has used at one time or
another in his life crack cocaine, marijuana, alcohol, powered cocaine, Valium, and antidepressants; his drug use started at age thirteen and that was when he started having difficulties
especially academically. Carter described himself as being influenced by Kenny Hill, a codefendant. Id.
Dr. Chiappone testified Carter’s use of cocaine at the time of the offense would have
made him more impulsive and want to act out. At the time of the offense, Dr. Chiappone
believed, Carter had a defect which was his limited intellectual ability. Carter was only nineteen
years old at the time of the offense. He had no record as a juvenile delinquent and two charges
as an adult, but he had been getting into fights and difficulty with relationships from early on.
The biggest factors in his life and actions are drugs and colonization with that sense of not fitting
in and being alienated. Id. 1201-13. In addition, Dr. Chiappone testified that Carter has a limited
ability with respect to reading and writing; his brother Robert took him into his home to try to get
him away from drugs and Robert had a very difficult time getting Carter to do anything. Dr.

21

Chiappone believed that there is information indicating that Carter was malingering. Id. at 121429.
In reviewing this testimony on direct appeal, the Court of Appeals agreed that trial
counsel
elicited unfavorable testimony from a mitigation expert during the
penalty phase of the trial. While we agree that many of the
statements made by the expert did not cast Carter in a positive
light, the testimony, when considered in its entirety, demonstrated
that Carter had lived, at times, a painful and tragic life. Defense
counsel obviously hoped that such information would convince the
jury that Carter's actions were a result of social and mental
problems that he had experienced during his life.
Carter, 1993 WL 512859 at *16. The Supreme Court summarized this claim as “(3) counsel's
presentation of a clinical psychologist during the mitigation hearing whose testimony was mixed
in nature and included recitation of facts prejudicial to Carter,” but it found neither deficient
performance nor prejudice within the meaning of Strickland. Carter, 72 Ohio St. 3d 545 ¶ 29
(1995).
These conclusions of the Ohio courts are not contrary to clearly established Supreme
Court precedent: both opinions cite to the correct standard for ineffective assistance of trial
counsel claims from Strickland, supra. That standard is familiar:

A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence
has two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel
was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the

22

conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Strickland, 466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must
show both deficient performance and prejudice. Berghuis v. Thompkins, ___ U.S. ___, ___, 130
S.Ct. 2250, 2255 (2010), citing Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within a wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
"might be considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
the defendant must show that there is 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 overcome confidence in the outcome.
466 U.S. at 694; see also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing, Strickland,
supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing, Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987) quoting, Strickland, 466 U.S. at 687. “The likelihood
of a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d
372, 379 (6th Cir. 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 1760 (2012), quoting Harrington
v. Richter, 562 U.S. ___, ___, 131 S. Ct. 770, 792 (2011).

23

Additionally, Carter has not shown an objectively unreasonable application of Strickland.
Of course, one would prefer that a defense psychologist not mention torturing animals or
bullying conduct, but how is a lawyer to use bad childhood experiences to mitigate a murder
without allowing the psychologist to testify to the other bad consequences of those experiences
in a defendant’s life? If the comments appear in a written report of Dr. Chiappone, it would
certainly be better to have them come out as part of an uninterrupted narrative on direct than to
have them come out on cross and to appear to have made an attempt to hide them. Expert
witnesses must be permitted to testify to the results of applying scientific method, not to results
dictated by the needs of the case. Compare Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993).

And of course having Dr. Chiappone testify as to the bad childhood

experiences has these events coming from an outside expert rather than from family members,
whom a jury might suspect of bias.
As the Supreme Court wrote last year in Harrington v. Richter, ___ U.S. ___, 131 S. Ct.
770 (2011):
The pivotal question is whether the state court’s application of the
Strickland standard was unreasonable. This is different from
asking whether defense counsel’s performance fell below
Strickland’s standard. Were that the inquiry, the analysis would be
no different than if, for example, this Court were adjudicating a
Strickland claim on direct review of a criminal conviction in a
United States district court. Under [the] AEDPA, though, it is a
necessary premise that the two questions are different. For
purposes of § 2254(d)(1), “an unreasonable application of federal
law is different from an incorrect application of federal law.”
Williams, supra, at 410. A state court must be granted a deference
and latitude that are not in operation when the case involves review
under the Strickland standard itself.
…
If this standard is difficult to meet, that is because it was meant to
be. As amended by [the] AEDPA, § 2254(d) stops short of
imposing a complete bar on federal court relitigation of claims
already rejected in state proceedings. Cf. Felker v. Turpin, 518
24

U.S. 651, 664 (1996) (discussing [the] AEDPA’s “modified res
judicata rule under § 2244). It preserves authority to issue the writ
in cases where there is no possibility fair-minded jurists could
disagree that the state court’s decision conflicts with this Court’s
precedents. It goes no further. Section 2254(d) reflects the view
that habeas corpus is a “guard against extreme malfunctions in the
state criminal justice systems,” not a substitute for ordinary
correction through appeal. Jackson v. Virginia, 443 I.S. 307, 332,
n.5 (1979) (Stevens, J., concurring in judgment). As a condition for
obtaining habeas corpus from a federal court, a state prisoner must
show that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fair-minded disagreement.
Id. at 785-87. The Ohio courts’ conclusion that it was not deficient performance to present
Chiappone’s testimony, considered as a whole, is not an objectively unreasonable application of
Strickland. Therefore that portion of Ground Twenty-Eight for Relief which complains of the
presentation of Dr. Chiappone’s testimony is without merit and should be dismissed with
prejudice.

Merit Analysis of Claimed Ineffectiveness in Failure to Call Carter’s Mother as a
Mitigation Witness

The second remanded issue is whether trial counsel were ineffective in failing to call
Carter’s mother, Desa Spaulding, during the mitigation phase of the trial. Although this claim
was presented on direct appeal, the Court of Appeals held it could not adequately adjudicate the
claim with no record of what the testimony would have been. Carter, 1993 WL 512859 *16. In
post-conviction, her affidavit was presented, but the Court of Appeals found “[t]he essence of her
proposed testimony regarding Carter’s developmental, educational, interpersonal, and substanceabuse problems was presented through Carter’s unsworn statement and the testimony of other
mitigation witnesses.” Carter, 1997 WL 705487 at *7. The court then denied the ineffective
25

assistance of trial counsel claim. Id.. Because this is a merits decision by the Ohio courts, Carter
must show it is an objectively unreasonable application of Strickland (28 U.S.C. § 2254(d)(1)) or
based on an unreasonable determination of the facts in light of the evidence presented in state
court (28 U.S.C. § 2254(d)(2)).
In his Post-Hearing Brief on the Merits, Carter’s argument on this remanded issue is, in
its entirety, as follows: “Petitioner's mother was not called to the stand although she stood ready
to appear. (Post-conviction Petition Exh. C.).” (Doc. No. 124-2, PageID 190.) This argument
does not contribute to the 2254(d)(1) or (d)(2) analysis.
Considered without the benefit of any argument from Petitioner, the Magistrate Judge
cannot conclude that the court of appeals’ decision is not entitled to AEDPA deference.
Although the court of appeals did not formally rule that Carter’s mother’s testimony would have
been cumulative, Carter has offered this Court no demonstration that the Court of Appeals was
wrong in concluding the evidence she would have given had been admitted through other
witnesses.
In her affidavit, Ms. Spaulding testified that if counsel had called her as a witness during
the mitigation phase of trial, she would have testified that: (1) although Carter suffered from
mental deficiency, in particular a low I.Q., while living in Selma, Alabama, he was always an
average or better student in school; (2) after he moved to Cincinnati, Ohio, Carter began using
and selling crack cocaine; (3) she continuously complained to the judges of the juvenile court
that Carter was using drugs and “running around with older guys”; (4) she asked the judges for
help and asked that they “lock him up if necessary” but they refused to do anything to help; (5)
she asked Carter’s teachers at Taft High School to help “make his [sic] stop using drugs and to
go to school”; (6) she called the police many times requesting their help in getting Carter to stop

26

using and selling drugs and they would speak with him on occasion but would not do anything
else; (7) on one occasion, Virgin Simms [Virgil Sims], who was jointly indicted with Carter,
came to her house and she ordered him to stay away and told him that if he didn’t stop
associating with Carter she would call the police; and (8) on or about January 6, 1992, prior to
Carter’s trial, she applied on his behalf for Social Security Supplemental Income benefits on the
basis of his mental deficiencies and physical problems and on July 30, 1992, he was awarded
Social Security benefits. (Return of Writ, Doc. No. Doc. No. 2, Exs. K and C.)
During the mitigation phase of trial, Richard Spaulding, Ms. Spaulding’s boyfriend5 at
the time, testified that that he had known Carter for about three years, Carter had lived with him
and Ms. Spaulding off and on for about a month or two, they ate breakfast together, watched
television, he took Carter with him on his part-time janitorial jobs, Carter was a good worker,
and that he did not discipline Carter because he didn’t think he had the right to do so. Transcript
of Proceedings, Volume VII, at 1153-59 (“Trial Tr.”). Mr. Spaulding also testified that when he
first met Carter he was fifteen or sixteen years old, at the time he (Mr. Spaulding) did not think
that Carter was using drugs and just found out recently that he had been using. Mr. Spaulding
tried to tell Carter right from wrong and he did not “step into their affairs too much because [he]
did not know that much about drugs or nothing like that or what he was into”, his (Mr.
Spaulding’s) rule was that Carter had a certain time to be home because Mr. Spaulding did not
believe in staying out late and coming home late at night. Carter’s relationship with his father
was not very friendly. Carter and his brother seemed to have a loving relationship but they had
their ups and downs. Carter and his sister seemed to get along “real good”, and that he and
Carter occasionally drank beer together. Id. at 1160-63. Mr. Spaulding testified further that
Carter’s mother tried to get him into treatment programs and she “had somebody or SSI or
5

Although they share the same surname, he is referred to in the record as her boyfriend.

27

somebody like that” but that he didn’t “know too much about that”, and that Carter had a bit of a
temper. Id. at 1167-71.
Carter himself made an unsworn statement at the mitigation phase of his trial in which he
said that he was a “well-raised boy by [his] mother”, he was a drug addict, and that he read the
bible every night. Id. at 1172-746.
As noted above, Dr. Chiappone testified at length at Carter’s mitigation hearing.
Ms. Spaulding’s proposed testimony included information about Carter’s upbringing, his
developmental, educational, and social problems, his substance abuse, and the fact that she had
applied for Social Security benefits on his behalf and that he was subsequently awarded those
benefits. However, the Court’s review of Mr. Spaulding’s testimony and Dr. Chiappone’s
testimony as well as Mr. Carter’s unsworn statement reveals that those witnesses testified about
the issues Carter alleges Ms. Spaulding she would have testified about had counsel called her as
a mitigation witness. For example, Mr. Spaulding testified about Carter’s relationships with his
father, brother, and sister, Carter’s drug use, Ms. Spaulding’s efforts to get Carter into treatment,
and about Ms. Spaulding’s involvement with SSI on Carter’s behalf. Additionally, Carter spoke
about his being a drug addict. Finally, Dr. Chiappone testified at length about Carter’s
upbringing, his developmental and educational backgrounds, his mental and learning disabilities,
his relationships with his father and siblings, his drug addiction and the effects thereof, and his
social skills. In other words, the information that Ms. Spaulding would have testified about was
presented to the jury during the testimony of Mr. Spaulding and Dr. Chiappone as well as by
Carter in his statement to the jury. In light of that fact, there is nothing that Ms. Spaulding alleges
she would have testified about that was not presented to the jury. Under these circumstances,
Carter has not shown that the Court of Appeals’ decision on this remanded issue is not entitled to
6

Carter had taken the stand during the guilt phase.

28

AEDPA deference under either § 2254(d)(1) or § 2254(d)(2). The claim should be denied on the
merits.

Merit Analysis of Claimed Ineffectiveness With Respect to the Transcript of Dr.
Chiappone’s Testimony

As the Sixth Circuit read this claim, it “raises the issue of counsels’ ineffectiveness
leading to the exclusion of evidence from the mitigation stage and, specifically, the trial court’s
refusal to provide the jury with a transcript of Dr. Chiappone’s testimony.” Carter v. Mitchell,
693 F.3d at 569. Indeed, the Twenty-Ninth Cause of Action as pled says evidence was excluded
because of trial counsels’ ineffectiveness. (Petition, Doc. No. 1, p. 46).
It is well established that a capital defendant has very wide latitude in presenting
mitigating evidence. Lockett v. Ohio, 438 U.S. 586 (1978); Buchanan v. Angelone, 522 U.S.
269, 276 (1998); Eddings v. Oklahoma, 455 U.S. 104 (1982). Carter expressly cites Lockett in
the Petition (Doc. No. 1, ¶ 144). But there was no exclusion of Dr. Chiappone’s testimony from
here. It is very clear from the state court record that no proffered testimony of Dr. Chiappone
was excluded in the sense that the jury was permitted to hear his oral testimony, along with all
the other oral testimony at trial. But Lockett has never been extended to hold that a defendant is
entitled to have any portion of the mitigating testimony transcribed and provided to the
deliberating jury.
Judge Nadel did not exclude any of Dr. Chiappone’s proffered testimony.

What

happened instead was that, after retiring to deliberate, the jury asked for a transcript of Dr.
Chiappone’s testimony and Judge Nadel declined to provide the transcript. Carter, 1993 WL
512859 at *11, quoted supra at p. 8. On direct appeal Carter raised this as a claim of trial court

29

error, not ineffective assistance of trial counsel. Id.; Carter, 72 Ohio St. 3d 545 at ¶¶ 34-35. In
post-conviction, Carter again presented this as a claim of trial court error, not ineffective
assistance of trial counsel. Carter, 1997 WL 705487 at *4-5, quoted supra at 9-10. The Sixth
Circuit decision neither cites nor quotes any place in the state court record where this claim was
raised as a claim of ineffective assistance of trial counsel. Nevertheless, the majority opinion in
the Sixth Circuit rules that this claim was fairly presented as a claim of ineffective assistance of
trial counsel and our duty on remand is to obey the mandate.
Because the state courts did not address this as an ineffective assistance of trial counsel
claim, there is no state court decision directly in point to which AEDPA deference applies. The
findings by the state courts on the underlying facts do not suggest that any error by counsel
played a part in Judge Nadel’s decision not to provide the transcript, nor do they suggest that
there was some deficient performance of trial counsel that could have somehow supported that
decision. Rather, the state court decisions on this claim, both on direct appeal and in postconviction, note the usual rules in Ohio for not reading portions of trial testimony back to the
jury, much less stopping deliberations to have a transcript prepared.
Moreover, the Ohio courts noted Carter’s complaint about the content of Dr. Chiappone’s
testimony and wondered about the inconsistency between that content and still wanting the jury
to have the testimony in writing. Provided with a transcript of Dr. Chiappone’s testimony, the
jury might well have focused on the negative aspects of that testimony complained of in Ground
Twenty-Eight (e.g., bullying women, torturing animals). There is no showing that trial counsel
failed to support the jury’s request for the transcript. And there is certainly no showing of
prejudice from the failure to provide the transcript since the jury foreman did not testify at his
post-conviction deposition that seeing the testimony would have changed his vote. See Carter,

30

1997 WL 705487 at *5.
A review of the trial transcript reveals that initially some of the jurors had difficulty
hearing Dr. Chiappone’s testimony. See, e.g., Trial Tr. at 1179 (Defense counsel to Dr.
Chiappone: “Some of the jurors are having trouble hearing you.”); 1182 (Defense counsel to Dr.
Chiappone: “…it’s very hard to hear you. Maybe if could you hold the microphone in your
hand.”); Id. (Court to Dr. Chiappone: “… If you would hold the microphone. Could you hold it
in your hand and speak closely into it, Doctor?”). Indeed, at least once, defense counsel asked
that Dr. Chiappone repeat his testimony. Id. (Defense counsel to the court: (“… I notice [a] Juror
… could not hear and raised her hand. Maybe if Dr. Chapone could start back at the family
history that would be helpful.”). Later during defense counsel’s examination of Dr. Chiappone,
the court again asked that Dr. Chiappone speak up. Id. at 1189 (Court: “Doctor, you will have to
speak up. You could do that. Just speak right into the microphone and raise your voice. … It’s
not that difficult. … Keep the microphone up here and speak into it.”). A review of the transcript
reveals that there were no further discussions or instructions regarding the jury’s ability to hear
Dr. Chiappone’s testimony. Id. at 1190-1229.
The trial record reveals that the jury retired to begin its penalty phase/mitigation
deliberations on Monday, July 13, 1992, at about 4:20 p.m. and that at about 6:40 p.m. the court
released the jury for the evening.7 Id. at 1310-11; 1311-12. The jury resumed it deliberation at
about 9 a.m. on Tuesday, July 14, 1992, and at 2:45 p.m., the court had the jury brought into the
courtroom and the court advised the jury as follows:
We interrupted your proceedings and deliberations because you
indicated we [sic] would like a transcript of the testimony of the
psychologist.

7

The record reveals that while the court released the jury for the evening, the jury was in fact sequestered. See Id. at
1311-12.

31

And in response to that, ladies and gentlemen of the jury, our
policy is that the proceedings from which this testimony came
from is a sentencing proceeding which was a relative short
proceeding and, therefore, our policy is not to give you or reread
testimony.
The reason is it emphasizes – first of all, it was a short proceeding.
It took place on Monday a short time ago and, secondly, it places
unfair emphasis to you on one part of the testimony as opposed to
another.
So for that reason I will not reread the testimony.
So with that we will send you back to the jury room and ask you to
resume your deliberations until you have arrived at a jury decision.
Thank you very much.
Id. at 1313-14. The jury continued its deliberations at 2:57 p.m. and deliberated until 4:40 p.m. at
which time the court again released the jury for the evening. Id. at 1314-16. The jury again
resumed deliberations on Wednesday, July 15, 1992, at 8:30 a.m., Id. at 1315, and advised the
court at about 2:10 p.m. that it had reached a verdict. Id. at 1317.
First, Mr. Carter’s position that because the jury had difficulty hearing Dr. Chiappone’s
testimony, it is likely that the jury remembered primarily the negative aspects of Dr. Chiappone’s
testimony, but that if the jury had been provided the requested transcript, it would have been able
to review the more favorable aspects of Dr. Chiappone’s testimony is pure conjecture.
Second, the trial transcript does little, if anything, to support Mr. Carter’s argument.
While it is true that the jury apparently initially had difficulty hearing Dr. Chiappone while he
testified, counsel as well as the trial judge apparently remedied that situation. Specifically, Dr.
Chiappone’s testimony is approximately fifty transcript pages in length. Trial Tr. at 1178-1229.
The record reflects that the jury’s difficulty hearing Dr. Chiappone occurred sporadically during
the initial phase of his testimony. See Id. at 1179-89. Further, the record reflects that Mr. Carter’s
counsel asked Dr. Chiappone to repeat those initial portions of his testimony that the jury
32

indicated it had difficulty hearing. Id. Additionally, there is nothing in the transcript that
indicates that the jury requested a transcript of Dr. Chiappone’s testimony because they could not
hear that testimony. Id. at 1313-14.
Third, Mr. Carter has simply failed to show there is a reasonable probability that the
result of the mitigation phase of his trial would have been different had counsel insured that the
trial court provide the jury with a transcript of Dr. Chiappone’s testimony. Stated differently, Mr.
Carter has failed to establish the second, or prejudice prong of the Strickland test.
In sum, Carter has not shown that whatever his trial counsel did or did not do with respect
to the provision of a transcript to the jury was deficient performance under Strickland or resulted
in any prejudice, as that term is understood in the Strickland jurisprudence.

Conclusion

It is therefore respectfully recommended that the Court deny habeas relief on all three of
the remanded issues.

However, because the Sixth Circuit found these issues sufficiently

arguable to merit remand, a certificate of appealability should issue as to all three.
January 14, 2013.
s/ Michael R. Merz
United States Magistrate Judge

33

APPENDIX
f. Twenty-Eighth Cause of Action:
Appellant's sentence of death is void or voidable because he was
denied effective assistance of counsel in the preparation and
presentation of the mitigation phase of his capital trial in violation
of his rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
The Sixth Circuit Court of Appeals reversed a death penalty
sentence when it found that counsel had made virtually no attempt
to prepare and present effective mitigation at the sentencing phase
of the trial. Glenn v. Tate, 71 F.3d 1204 (CA6. 1995). In a matter
remarkably similar to the matter under consideration, the circuit
court recognized that "it was obvious, or should have been, that the
sentencing phase was likely to be "' the stage of the proceedings
where counsel an do his or her client the most good. In Glenn,
counsel failed to make any significant preparations for the
sentencing phase. This was particularly egregious because there
was a significant medical history which showed that Glenn had a
neurological brain impairment. Since Glenn's counsel failed to
make any preparations for the sentencing phase until after the
guilty finding, the court found such inaction to be objectively
unreasonable. To save the difficult and time consuming task of
assembling mitigation witnesses until after the jury's verdict in the
guilt phase almost insures that witnesses will not be available."
Citing Blanco v. Singletary, 943 F.2d 1477, 15012 (CA11. 1991),
cert. denied, 504 U.S. 943 (1992). The court found that only one of
Glenn's attorney's did any preparation at all for the mitigation
phase, and his efforts were largely misdirected. He attempted to
prepare a video tape which fed to show a day in the life of the
defendant. 125. The trial court held such evidence to be
inadmissible, so that in fact very [sic] little if any mitigation was
presented. The Court concluded that there was wealth of evidence
present which showed Glenn's brain damage, his unfortunate
proclivity to follow, and the numerous individual's who were
willing to come forward on his behalf. The similarities to Carter’s
case are striking. Trial counsel's initial error in the matter at bar,
was the failure to obtain a mitigation expert. Instead, counsel
requested the appointment of a psychologist from the local court
clinic, Dr. David Chiappone, who admittedly had virtually no
experience in the preparation and presentation of mitigation
material in a death penalty case. (Sentencing Hearing p. 1217).
Furthermore, Dr. Chiappone’s report and the reports prepared
concerning the NGRI plea were shared with the prosecution giving
34

them a road map of the defense mitigation case. Appellate counsel
Boyd testified that it was wrong to have the mitigation records
turned over to the prosecution. (Evid. Hrg. TR. p. 22). Boyd
further testified that he had no strategic reason for failed to assert a
claim on appeal that trial counsel were ineffective for acquiescing
in a procedure that let the prosecution get all of the mitigation
evidence (Evid. Hrg. TR. p. 23). Attorney Hust testified that the
disclosure of mitigation evidence to the prosecution prejudiced the
defense. (Evid. Hrg. TR. p. 91).
As the records submitted at the evidentiary hearing make
abundantly clear Dr. Chiappone simply scratched the surface of
what should have been presented. It is Attorney Boyd’s opinion
that Dr. Chiappone did not act as a mitigation expert. (Evid. Hrg.
TR. p. 17).
Petitioner's history disclosed that he is borderline mentally
retarded.
(Sentencing Hearing p. 1199). Furthermore, Dr.
Chiappone opined that Petitioner had had a number of head
injuries which led him to believe that there may have been a
neurological impairment. "I think we have to raise the issue of
organic involvement meaning some dysfunction in the brain that is
not entirely clear what is going on." (Sentencing Hearing p. 1203).
Unfortunately, no effort was made to acquire a cat-scan or other
neurological examinations to present the existence or nonexistence
of an organic reason for Petitioner's behavior. Petitioner's school
records from Selma, Alabama were partially made available to Dr.
Chiappone. These records disclosed that national testing had been
performed on Petitioner. These tests serve as a strong history of a
student's mental proclivities and accurately predict retardation,
attention deficits, anti-social behavior and overall ability to learn.
No expert in education was consulted or asked to interpret the
scores available. Since these tests are nationally given, a local
education expert would certainly have been available to discuss the
interpretation of the scores. Petitioner's formative years were spent
in Selma, Alabama. No effort was made to talk with his teachers or
the school officials to confirm the ongoing problems that he was
experiencing. A wealth of information was available to be obtained
from these individuals and telephone depositions could have been
taken in order to preserve their testimony for the trial.
Another underlying theme in Petitioner's development was his
addiction to drugs at a very early stage in his life. Although jurors
may be familiar in a very general sense with the effects of cocaine
on an individual, an expert in this area could have provided a more

35

thorough understanding of the impact of cocaine on this Petitioner.
See, First and Second Causes of Action argued above.
While the trial was proceeding, Petitioner had a pending a Social
Security claim. A social security claim would by necessity require
a variety of physical and mental examinations in order for the
claimant to obtain benefits. (Post conviction Petition Exh. B.). That
document reflects that doctors and other trained personnel decided
that Petitioner was disabled. Further, it reflected Social Security's
understanding that his condition may not improve. It certainly
would have been essential to the mitigation phase to provide this
very valuable information to the jury.
Counsel for Petitioner admittedly failed to obtain psychiatric
records for treatment that Petitioner had undergone as a child.
(Mitigation Hearing p. 1197). Many of these records are contained
in Volumes I and II of the materials submitted at the evidentiary
hearing. Attorney Hust testified that there was no strategic reason
for not raising a claim on appeal that trial counsel were ineffective
when failed to present the psychological records in mitigation
(Evid. Hrg. TR. p. 91). See, also Williams v. Taylor, 529 U.S. 362
(2000).
Petitioner's family was not called to the stand to recount to the jury
the problems that he had had while growing up. To argue that such
testimony would have been cumulative shows a lack of
understanding for the process of mitigation.
Petitioner's mother was not called to the stand although she stood
ready to appear. (Post conviction Petition Exh. C.). Testimony
during the trial reflected the existence of a sister and a brother as
well. None of these individuals were called to plead for Petitioner's
life or to explain his developmental years. Instead, counsel opted
for a summary of interviews obtained by Dr. Chiappone and his
assistant. This sterile and disjointed approach to mitigation
deprived the jury of a complete picture of the eitology [sic] of
Carter’s mental health.
Dr. Chiappone's presentation was less than effective. State
appellate counsel Boyd testified “ I would not have put on Dr.
Chiappone” (Evid. Hrg. TR. p. 15). On numerous occasions he
had to be told to speak up so that the jurors could hear his
testimony. (Mitigation Hearing, pps. 1182, 1189, and 1190). In
addition, his testimony was extremely difficult to follow and his
conclusions equally confusing. (Post conviction Petition Exh. B.
Statement of R. Michael Reinstatler, Juror Foreman).
36

Even if we assume that Dr. Chiappone's diagnosis of Petitioner as
borderline mentally retarded, with possible organic dysfunction in
the brain, substance dependent, and an anti-social personality were
accurate, trial counsel did little to effectively present their
underlying historical genesis to the jury. Attorney Boyd testified
that it was his opinion that Trial Counsel should have followed up
with an appropriate expert if Dr. Chiappone believed that Carter
had some sort of brain dysfunction. (Evid. Hrg. TR. p. 16). Trial
counsel should have investigated these issues with Petitioner's
family members and friends to enable Dr. Chiappone to present his
testimony in the best light possible. Similarly, Petitioner's mother
should have been called and engaged in a lengthy conversation
about her son's upbringing.
In addition, trial counsel gratuitously elicited information about
Petitioner's dark side. Petitioner was revealed by his own witness
to be abusive toward women, a bully who brutally imposed his will
on those in the streets, a person who had difficulty controlling his
anger, a person fascinated with guns, and finally as someone who
tortured and killed animals. (Mitigation Hearing pps. 1191, 1193,
and 1223). None of these details mattered as a matter of law.
Disclosure of these tendencies could only have frightened the jury
and justified their verdict. By providing this type of information,
trial counsel for Petitioner included non-statutory aggravating
factors to be considered by the jury.
Dr. Chiappone also disclosed that Petitioner engaged in self
mutilation. (Mitigation Hearing p. 1193). Jurors weren’t told that
people who self mutilate may possess suicidal ideation and some
believe that it may be indicative of sexual abuse as a child. None of
this was addressed other than in cursory fashion at the hearing and
certainly it was not a factor in Dr. Chiappone's conclusions.
Without the necessary testimony and background from friends and
family members, the jury could only look to Dr. Chiappone for
such information. As a result, Dr. Chiappone was not effective and
was successfully attacked by the prosecutor. In its written opinion
sentencing Petitioner to death, the court was less than impressed
with Dr. Chiappone's efforts. In one sentence the Court opines that
while Petitioner's upbringing may not have been exemplary, it did
not explain his later behavior in life. (Opinion of Judge Norbert
Nadel p. 15).

37

In Glenn the Court noted that the reason for the paucity of
mitigation evidence was the lack of preparation. The Court
observed:
The lawyers made no systematic effort to acquaint
themselves with their client's history. They never spoke to
any of his numerous brothers and sisters. They never
examined his school records. They never examined his
medical records(including an emergency room record
prepared after he collapsed in court one day) or records of
mental health counseling they knew he had received.
They never talked to his probation officer or examined his
probation records. And although they arranged for tests,
some months before the start of the trial, to determine
whether he was competent to stand trial, they waited until
after he had been found guilty before taking their first step
-- or misstep, as we shall explain presently – toward
arranging for expert witnesses who might have presented
mitigating evidence on John Glenn's impaired brain
function.
In addition, Glenn's counsel did not seek to obtain defense experts
of their own to present evidence of their client's impaired brain
function. Instead, they allowed the court to appoint joint experts
whose result were given to the jury. These reports were of no
benefit to Glenn and went into the jury room without being
questioned.
The Sixth Circuit held that no competent trial counsel would have
allowed this to occur. If counsel had done their homework ahead of
time Glenn's interests would have been better protected. Carter’s
case is no different.
All of the errors alluded to above more than meet the first prong of
the Strickland test that counsel's performance was deficient. The
combination and cumulative effect of these errors undermined the
reliability of the death sentence imposed. Defense counsel's efforts
undermined the process and severely reduced Petitioner s chances
for a life sentence. This prejudice was sufficient to meet the second
prong of the Strickland test. In sum, the total effort and
presentation of defense counsel during the mitigation phase of this
trial was ineffective under the Strickland decision.
g. Twenty-Ninth Cause of Action
Appellant's death sentence is void or voidable because evidence
which should have been presented to the jury was excluded due to
38

the ineffectiveness of trial counsel in violation of the Fifth Sixth,
Eighth and Fourteenth Amendments to the United States
Constitution.
The United States Supreme Court has consistently held fast to the
theme that mitigating evidence should not be precluded. The
Eighth Amendment requires that a capital sentencer "be allowed to
consider on the basis of all relevant evidence not only why a death
sentence should be imposed, but also why it should not be
imposed." Jurek v. Texas, 428 US 262, 271 (1976). In Lockett v.
Ohio, 438 US 586, 604 (1978), the Chief Justice wrote that the
Eighth Amendment and Jurek require, that the sentencer not be
precluded from considering as a mitigating factor, any aspect of a
defendant's character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less
than death. As discussed in the Twenty-Eighth Cause of Action
above, trial counsels’ lack of effort in the preparation of the
mitigation phase of the trial, excluded viable and effective
information from being presented to the jury. Appellate counsel
Boyd opined that the jury never had background information to
provide context for Carter’s behavior (Evid. Hrg. TR. p. 24-25).
Attorney Hust testified that there was no strategic reason for not
raising a claim on appeal that trial counsel were ineffective when
failed to present the psychological records in mitigation (Evid.
Hrg. TR. p. 91).
Where counsel has failed to conduct an investigation that would
have uncovered records nightmarish childhood for use in
mitigation proceedings they are ineffective. Williams v. Taylor,
529 U.S. 362 (2000). Where counsel has failed to investigate,
research, or collect pertinent records regarding Petitioner’s
background or history for mitigation purposes and made no
attempt to locate significant persons who could provide testimony
regarding mitigating factors when available is not considered trial
strategy but is instead, an abdication of advocacy. Powell v.
Collins, 332 F.3d 376 (CA6 2003). For these reasons Petitioner's
death penalty is void
(Petitioner’s Trial Brief, Doc. No. 124, PageID 187-193.)

39

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

40