Smith v. Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Smith v. Mitchell No. 00-4030 ELECTRONIC CITATION: 2003 FED App. 0381P (6th Cir.) File Name: 03a0381p.06 SCHWARTZ, Cincinnati, Ohio, for Appellant. Henry G. Appel, Charles L. Wille, ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL CRIMES SECTION, UNITED STATES COURT OF APPEALS Columbus, Ohio, for Appellee. FOR THE SIXTH CIRCUIT SUHRHEINRICH, J., delivered the opinion of the court, in _________________ which BATCHELDER, J., joined. COLE, J. (pp. 62-68), delivered a separate opinion concurring in part and dissenting WILLIAM H. SMITH, X in part. Petitioner-Appellant, - - _________________ - No. 00-4030 v. - OPINION > _________________ , BETTY MITCHELL , Warden, - SUHRHEINRICH, Circuit Judge. In April 1988, a Respondent-Appellee. - unanimous three-judge panel of the Court of Common Pleas, N Hamilton County, sentenced William H. Smith (“Smith” or Appeal from the United States District Court “Petitioner”) to death for the aggravated murder of Mary for the Southern District of Ohio at Cincinnati. Bradford. The Ohio state courts denied all of Smith’s claims No. 95-00320—S. Arthur Spiegel, Senior District Judge. for relief, as did the federal district court on habeas. Smith now appeals from the judgment of the district court denying Argued: September 18, 2002 his application for writ of habeas corpus under 28 U.S.C. § 2254, challenging both his conviction and sentence. The Decided and Filed: October 28, 2003 principal issue on appeal is whether trial counsel were ineffective for failing to present mitigating evidence at Before: SUHRHEINRICH, BATCHELDER, and COLE, sentencing. For the following reasons, we AFFIRM the Circuit Judges. judgment of the district court.

_________________ I. Background

COUNSEL A. Facts

ARGUED: Laurence E. Komp, Baldwin, Missouri, for The following facts are taken from the Ohio Supreme Appellant. Henry G. Appel, ATTORNEY GENERAL’S Court’s opinion on direct appeal. OFFICE OF OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for Appellee. ON BRIEF: Laurence E. On Saturday afternoon, September 26, 1987, Mary Komp, Baldwin, Missouri, H. Louis Sirkin, Laura A. Abrams, Virginia Bradford, age forty-seven, visited the Race Inn, Jennifer M. Kinsley, SIRKIN, PINALES, MEZIBOV & a neighborhood bar in Cincinnati, Ohio. While at the Race Inn, she had several beers and met, talked, and

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danced with William H. Smith, appellant, a regular bar Bradford’s right lung and heart, and wound nine, a four- patron. She left the Race Inn around 11:45 p.m. inch wound into the sternum and the heart’s right ventricle. Wound seven, a five-inch puncture into the rib Around 4:00 p.m., on September 27, Marvin Rhodes, and liver, and wounds eight and nine all fractured bony Bradford’s boyfriend, stopped by her apartment because structures. Wound two, four inches in depth, crossed her he had not seen her since Friday, September 25. No one neck from left to right. Wound ten punctured the liver answered the doorbell, but Rhodes saw blood near the and was no more than four inches in depth. Two front door and found Bradford in the bedroom. Feeling wounds, one and five, showed no signs of hemorrhage her face, he found no life in her body and called the and thus were inflicted after death or when the heart was police. not pumping sufficient blood. Wounds one, three, four, and six were superficial. Bradford’s body exhibited no Responding police officers found Bradford lying other evidence of injury or trauma such as bruises or stabbed to death on her bed, nude from the waist down. defense wounds that would indicate a violent struggle. On the floor, near her bed, police found a woman’s pants All the wounds could have been inflicted by the same, and panties, bloodstained and turned inside out, and, on single edged knife. the bed, an oxygen machine used by asthmatics. Forensic examination disclosed a .13 blood-alcohol level On September 28, 1987 homicide detectives went to and revealed sperm in her vagina and on her abdomen. where Smith lived, the home of Bertha Reid, Smith’s mother, which was about four blocks from Bradford’s Near the front door of the apartment, police found a house. When police arrived, Smith was not at home, and chair, with a pool of blood on it, and, on the floor, blood Reid let the officers in. While at Reid’s home, police smears including a bare bloody footprint leading to the noticed a television set matching the description of one bedroom. The apartment was otherwise exceptionally of the two sets missing from Bradford’s home. neat and clean, with no signs of disorder, disarray, or a Thereafter, police secured a warrant, found the missing struggle, and police found no murder weapon in the two televisions in Reid’s home, and seized them. apartment. One color television, one black and white television, and a stack stereo with two speakers were Reid testified that when her son came home around missing from Bradford’s apartment. 2:00 a.m. on September 27, he did not act unusual, nor did he appear to be drunk, high, or upset. However, Dr. Harry J. Bonnell, Chief Deputy Coroner, testified Smith did carry into Reid’s home the two television sets that Bradford died as a result of ten stab wounds to her in question along with a large stereo system and two upper body and consequent loss of blood. She was five speakers. Reid asked where he got the televisions and feet, three inches tall, weighed one hundred sixteen stereo, and Smith replied that his girlfriend Carolyn gave pounds, and a portion of her lungs was missing, which them to him. Reid did not accept her son’s explanation, explained her asthmatic condition. Bonnell numbered telling him he would “have to explain to me a little more the wounds from one to ten for descriptive purposes (but about what’s going on.” Later that morning, Smith and not indicative of the order in which inflicted). The most his cousin, Greg took the stereo and two speakers away lethal wounds, causing incapacitation within five but left the televisions. minutes, were wound eight, a four-inch wound into

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Reid also showed police clothing that her son had took her clothes off and got back on top of her and had worn and September 26 and 27, which police seized. sex again. Police asked: Subsequent forensic analysis revealed that Smith’s shirt and shoes bore traces of human blood. “Q. * * * [A]fter you had sex with her the second time, after she was stabbed, then what’d you do? On September 28, 1987, police apprehended and took Smith to police headquarters for questioning. After “A. I gathered up my things together and started taking being advised of his rights, Smith agreed to talk to her stuff downstairs. police. Smith initially asserted that he had driven Bradford home that night but had just dropped her off. “Q. What’d you take out of there? He later admitted that he had been in her apartment but had left when her boyfriend arrived. “A. Her two TVs and her stereo.”

Smith told police that he met Bradford at the Race Inn, Smith said he made four trips carrying her things down later drove her and her girlfriend to another bar, and then to his car and that he took her things in order to sell drove Bradford home. While at her house, Smith them. Although Smith initially claimed that he did not claimed that someone he thought to be Bradford’s know whether Bradford had stopped breathing, he later boyfriend arrived, and Smith decided to leave quickly. admitted he decided to have sex with her again because After Smith left, he realized that he had left a packet of “she was still breathing then.” He said that he pulled his cocaine, worth $2,500, at Bradford’s house. After he penis out as he started to climax and finished ejaculating returned, Bradford’s boyfriend and the cocaine were both on her stomach. He did this because he was thinking gone. Smith then talked with Bradford. about getting out of the apartment. Smith claimed he threw the knife into the Ohio River and sold Bradford’s “ * * * [W]e talked about restitution, you know. She said stereo in Dayton. However, police recovered her stereo she’d give me some of that body. I said okay, it’s good in Cincinnati. When police interviewed Smith, they also enough for me, you know, but then after I got that [had seized a pair of undershorts from him stained with blood sex with her] it wasn’t good enough, you know, so I of the same type as Bradford’s. asked her like you got any money and stuff, you know. She said she ain’t have no money. So we start arguing State v. Smith, 574 N.E.2d 510, 512-14 (Ohio 1991). and next thing you know she slid over to the kitchen and got [a] little blade--[small carving knife].” B. Trial Proceedings

According to Smith, Bradford was stabbed in the Smith was indicted on October 21, 1987, on two counts of stomach during the ensuing struggle and fell onto a chair. aggravated murder, pursuant to Ohio Rev. Code § 2903.01(B) He removed the knife from her stomach, and she dragged (Counts I & II), and one count of rape (Count III), and one or walked by herself to the bedroom. He recalled count of aggravated robbery (Count IV). Counts I and II each stabbing her in the neck in the bedroom after she called contained two death penalty specifications, one alleging him a motherfucker, but he did not admit inflicting the aggravated murder during rape and the other alleging murder other stab wounds. When she was lying on the bed, he during aggravated robbery. Smith initially entered a plea of

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not guilty by reason of insanity as to all charges.1 As a result, the trial court ordered that Smith be evaluated with respect to his mental state at the time of the alleged offense. Smith was early years. The mother, according to records and collateral evaluated by three experts, Nancy Schmidtgoessling, Ph.D, a reports, has a history of mental illness and was hospitalized at clinical psychologist of the Court Psychiatric Center, Roger times, bearing a diagnosis of “simple schizophrenia.” She was H. Fisher, Ph.D, a clinical psychologist, and Glenn Weaver, abusive and bizarre in her behavior toward the children , for example, hiding food from them and beating them M.D., a psychiatrist. Dr. Schmidtgoessling evaluated Smith unpredictably. Mr. Smith has five siblings; two of these are on November 27, 1987, and on December 12, 1987. On known to have had legal contact besides the defendant. In December 14, 1987, Dr. Schmidtgoessling filed a report with summ ary, the family of origin was a rather chaotic, the court, in which she concluded that Smith currently unpredictable environment for the defendant. showed no sign of major psychological disorder and that he was sane at the time of the alleged offense.2 Mr. Smith was placed in foster homes and at Longview State Ho spital for a number o f years during his developmental period. The Juvenile Court record s indicate that M r. Smith was placed at Longview State Hospital as a dependent child, 1 although there are some indications of behavior problems Smith was represented by attorneys Dale G. Schmidt and Robert J. preceding that plac ement, including firesetting and Ranz d uring his trial proceedings. incorrigibility. He apparently rema ined there from February, 2 1996 to August, 19 71 w ith a diagnosis o f emotionally unstable Dr. Schmidtgoessling prepared her “Not Guilty by Reason of perso nality and b orderline intellectual functioning. Mr. Smith Insanity Rep ort” (“N GR I”) in D ecem ber 1 987 , four months p rior to the does not see m pa rticularly unhappy about many of his mitigation phase. In it she indicated that several members of Smith’s experiences at Lon gview, describing playing basketball and family were interviewed, and that she reviewed the following record s: watching TV . Also, it seems that the adults in his environment were nicer to him there than in any other environment where he Available for review were a social history and psychological had lived. H e describes having been prescribed antipsychotic evaluation perfo rmed by the H amilton County Department of medications and having been given shock treatment while at Human Services in 1965 ; a statement of juvenile arrests Longview. provided by the Hamilton Co unty Juvenile Court; school records from Cincinnati Public Schools; and one prior evaluation by the In his juvenile years, Mr. Smith had several court contacts. Court Psychiatric Center completed in 1976. Records were Usually, these were property crimes such as Burglary, Robb ery, requested from Longview State Hospital for Mr. Smith’s stay and Unauthorized U se of a Motor V ehicle although he also had there during his childhood years but we were informed that those a cou ple of charges reflecting unruliness. records were destroyed in 1981. Lastly, records were requested, but never received, from the Ad ult Parole Authority. Academ ically, Mr. Smith has advanced to appro ximately the tenth grade. Based on her review of those records, Dr. Schmidtgoessling reported Smith’s family and social history as follows: ....

By way of background, Mr. Smith is the product of an In terms o f substance ab use, M r. Smith repo rts beginning to unhappy, rather b izarre family. He had little contac t with his experiment with wine when he was only about fifteen years old. biological father, until Mr. Smith was about twelve years old, . . . He believes he has been drinking daily since around age only becoming close when Mr. Smith was about nineteen. There seventeen, averaging a case of beer per day. H e does drink in was a stepfather present, who had been hospitalized for the morning. He reports he has had some blackouts and it psychiatric problems and incarcerated for Rape. It is unclear at appears that he has an increased tolerance with his extensive use. this time what impact these men had on M r. Smith during these Mr. Smith recalls beginning to use marijuana when he was about

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In his profile of Smith’s psychological status, Dr. Fisher stated that Smith was “fully oriented, rational and alert. . . . eleven years old, having been given a joint by a friend’s mother. There was no evidence whatsoever of any form of mental It seems that he uses marijuana on a fairly regular basis. He impairment.” Dr. Fisher also stated that “[d]espite his history began using coca ine a co uple of years ago. H e reports using this of hospitalizations, I have no reason to believe this man has app roxim ately every other day during this time period . . . . ever had an emotional illness. I think instead he has had Psychological testing was administered as part of the current long-standing characterological problems from early evaluation. On the Wechsler Adult Intelligence Scale-Revised, childhood . . . . ” Regarding criminal responsibility, Dr. Mr. Smith obtained a Verbal IQ of 78, a Performance IQ of 84, Fisher concluded that “Smith was free of any mental or and a Full Scale IQ of 78. These scores place M r. Smith in the emotional disease or defect. I feel he had sufficient judgment borderline to low a verage range of functioning. These scores are to have been able to differentiate legal right from wrong and consistent with an IQ established during his stay at Longview was psychologically sound enough to have been able to State Ho spital between 1966 and 1971 . However, records from the Hamilton County Department of Hum an Services shows an refrain from illicit actions if he had chosen to do so.” Dr. IQ established in December, 1965 using the Stanford Benet [sic]. Fisher added that, by his own description, Smith’s behavior This score of 101 placed him in the average range of “was purposeful and goal-directed. He was provoked to anger functioning. . . . The psychological evaluation conducted in by the loss of his cocaine and acted on that anger by trying to 1965 by the W elfare Department showed that Mr. Smith was make the victim pay him back for what he thought her unab le to concentrate and organize himself, and thus was unable to sustain his functioning in an unstructured situation. It was felt boyfriend had stolen.” at that time that his reality contact was precarious. He had such serious feelings of insecurity that he was unable to relate Dr. Weaver performed a psychiatric exam. Dr. Weaver satisfactorily despite his need for human relationships, according concluded that although Smith had extremely limited impulse to that psychological evaluation. A strong tendency towards controls in past years, he did not possess a mental disease or depression and attempts to repress hostile impulses were noted at that time. The psychologist felt that Mr. Smith’s thinking at defect, and that he did know the wrongfulness of his conduct. times bordered on autistic. When evaluated by the Court Smith thereafter withdrew his insanity defense. Psychiatric Center in 1976, M r. Smith showed no signs of impaired reality testing. He was felt to relate in an appropriate Trial counsel made initial contact with Jane Core of the manner and showed app ropriate modulation of his emotions Office of Public Defender (“OPD”), a mitigation specialist, during the interview. He was described at that time as suffering in January 1988. In a letter dated January 21, 1988, Core from an adjustment reaction of adolescence and dyssocial behavior.

In conc lusion, M r. Smith currently shows no sign of major strong underlying hostility second ary to life experiences. It psychological disorder. The available records also suggest an seems that in part he attempts to resolve many of his underlying absence of substantial psychological disorder such as tensions and feelings by using substances. Despite that, he still hallucinations, delusions, gross paranoia, mental retardation, or conveys being a person without significant direction or social the like. However, history does suggest that this is a person who attachm ents. has had su bstantial beha vioral prob lems throughout his life. . . . Personality wise, we would suggest that Mr. Smith has a number W ith respect to the legal question, it is my opinion that Mr. of deficits including interpersona l insecurity and sensitivity, Smith was sane at the time of the alleged offense. He did not impaired emp athy, inad equate co nscience de velopment desp ite suffer any substantial psychological disorder that would have the ability to verbalize social rules, chronic underlying grossly impaired his ability to determine right from wrong or to depression secondary to a history of neglect and abuse, and restrain his behavior.

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informed counsel that he would need to request Smith’s March 31, 1988, counsel informed Core by letter that they background records. Core also indicated that she had made would not be needing Liverani, because they had made other arrangements for OPD investigator Maggie Liverani to arrangements. provide assistance, but that Maggie would not be available until late February. Core stated she planned to meet with Trial counsel elected instead to request the “friend of the counsel on February 26. court” appointment of Dr. Schmidtgoessling. See Ohio Rev. Code § 2929.03(D)(1). Counsel met with Dr. In a letter dated February 8, 1988, Core thanked Ranz “for Schmidtgoessling on March 28, 1988, two weeks prior to the the materials regarding Mr. Smith,” especially Dr. sentencing hearing. Dr. Schmidtgoessling recalled that Schmidtgoessling’s report, “which certainly indicated a lot of counsel “could offer no direction to the mitigation,” and that possible things to work with.” Core told Ranz that he should counsel seemed unfamiliar with any of the records from the file a motion asking the court to cover the expenses of past evaluation of mental competency, juvenile records, or Liverani’s investigation, since OPD did not have the funds, Human Services Department records. Rather, Dr. and that he would “need to make sure the Court has approved Schmidtgoessling felt that counsel were more focused on funds before she begins her investigation at the end of this winning at the trial level. She agreed to make a copy of all month.” Finally, Core asked Ranz to forward a list of places the records for counsel, and to prepare a mitigation report he had requested records from as well as copies of those detailing Smith’s past developmental history and describing records as he received them. his current functioning. On February 29, 1988, Core sent a letter to counsel Trial began on April 4, 1988. On April 6, 1988, he was chastising Ranz for not providing the requested materials, convicted in the Court of Common Pleas of Hamilton County, which she stated were needed for Liverani to begin her Ohio, by a unanimous three-judge panel of two counts of investigation. In that letter Core stated: “Because of these aggravated murder under Ohio Rev. Code § 2903.01(B) and factors I do not feel it is possible to conduct an adequate two death specifications for each count under Ohio Rev. Code investigation on behalf of your client . . . and regret to inform § 2929.04(A)(7). He was also convicted of one count of rape you that neither Ms. Liverani or I will be available to provide under Ohio Rev. Code § 2907.02, and one count of assistance in this matter.” aggravated robbery under Ohio Rev. Code § 2911.01. The sentencing hearing began on April 11, 1988, and concluded Counsel responded on March 1, 1988, enclosing copies of on April 14, 1988. letters sent to which no replies had yet been received, and referencing Core’s letters of January 21 and February 8, Dr. Schmidtgoessling was officially appointed as a friend acknowledging receipt of the reports already sent. Ranz also of the court on April 6, 1988, following a finding of guilty by stated that the court had approved payment to Liverani. Ranz the trial court. Dr. Schmidtgoessling also testified that she stated that Smith was quite difficult to deal with and was called Ranz at home on April 10, 1988, because she did not counsel’s only source of information. Finally, Ranz asked know if she was supposed to testify at the sentencing hearing. Core to reconsider her position. On March 11, 1988, Core According to Dr. Schmidtgoessling, Ranz did not seem to reiterated her refusal to assist. Core apparently changed her know what role Dr. Schmidtgoessling would play at the mind, however, on March 24, 1988, after being apprised that hearing. She filed her mitigation report on April 11, 1988, Smith had waived his right to a jury trial. Nonetheless, on and testified at the mitigation hearing the same day. Given

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the short period of time, Dr. Schmidtgoessling relied “I am very sorry for what did happen to her, and I primarily on the records she received when preparing the am very sorry she is dead; but it was beyond my NGRI report. control. “I have asked for help before, and did not get it. So Five witnesses testified at Smith’s mitigation hearing. Two it is too late now. of Smith’s uncles testified briefly. Each characterized Smith “But again, I ask for help and the mercy of the court. as a nice person. Smith’s mother, Bertha Dean Reid, read a “Thank you, members of the panel.” prepared statement to the court. In her statement Reid told the court that Smith grew up in various foster homes from the As noted, Dr. Schmidtgoessling also testified, and her time he was 11 months until ten years old, and that during mitigation report was admitted into evidence. The doctor that time he was abused. She repeatedly stated that she indicated that she administered the Wechsler Adult thought Smith was mentally disturbed. She reported that Intelligence Test, and the MMPI. Regarding his family Smith stole from her, and that once, when she punished him background, Dr. Schmidtgoessling told the sentencing panel for breaking a window, Smith set fire to the kitchen curtains. that: She later had him probated to Longview State Hospital. In Reid’s view, “there is something wrong with William, This is a man who came from a background, where his mentally.” family members were incapable of caring for him, particularly his mother, who has a history of mental Reverend Timothy McDonald, Smith’s former pastor, illness, as well as herself of physically abusing the testified via deposition that Smith sought counseling to try to children. find a way to deal with his drug and alcohol dependency. On cross-examination, McDonald acknowledged that Smith’s His biological father, as far as I can determine, is wife came for marriage counseling because there was unknown. violence in the marriage. There was a stepfather, who actually lived with the Counsel also read a brief, unsworn statement prepared by family, who was very abusive, intimidating, a very Smith: frightening man, according to the reports that we have, and that he grew up largely for a number of years in “Sirs, I have been very truthful in my telling of the facts either foster homes for three or four years--three years, I of what happened. think in the Longview Children’s Unit. So essentially, “I did not go to her apartment for any reason other his background is one that behaviorally is marked by than to get my stuff, and I was invited. hyper-activity, some learning problems secondary to “We did go to bed together. distractability, poor achievement in school, a lot of “She got the knife, and I don’t know what happened behavior problems, stealing, fighting in school. to me. It is a big blur, and I guess I sort of went mad. He was early on described by one psychologist as “I didn’t want to hurt her, but what am I to do when emotionally disturbed; and after another evaluation by a faced with something like this? different psychologist was actually placed in the Children’s Unit at Longview, where he in fact did much

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better, I think because of the structure there of the school. find very cold and unacceptable, because of his personality The note shows that he got along there fairly well. style . . . .” I think the most important thing from a psychological Dr. Schmidtgoessling reported from a one-page summary point about those early developmental years is the lack of from Longview Hospital. The hospital diagnosed Smith as structure in the home, the lack of close nurturing by “physically and essentially a normal, black youngster, parent figure, or any adult figures, the affect [sic] of . . . psychologically,” but characterized him as having a “a physical abuse and emotional abuse in the family. personality-trait disturbance and an emotional, unstable personality.” Dr. Schmidtgoessling stated that this diagnosis Dr. Schmidtgoessling noted that she found a history of coincided with her own, and was consistent with other records mental illness in the family; both Smith’s mother and Reid, at that time. She concluded that Smith “certainly did not the stepfather, had been hospitalized at Longview. Dr. impress us as mentally ill in any gross fashion.” Schmidtgoessling next described the testing performed on Smith. She noted that he had been tested several times. In On cross-examination, Dr. Schmidtgoessling stated that, 1965, he was found to have an IQ of 101, which is in the despite Smith’s developmental background and his mother’s average range. At Longview, however, his IQ test showed history of mental illness, she found no evidence that Smith him to be functioning in the borderline range of intelligence. had ever suffered from a substantial mental illness. In Dr. Dr. Schmidtgoessling characterized this as “a drastic and Schmidtgoessling’s view, Smith was capable of appreciating significant drop,” attributable “only to the behavior problems the criminality of his acts. She also stated that Smith never or emotional problems he was experiencing at that time.” Her showed any remorse for the victim. Lastly, when asked on testing of him revealed a verbal IQ in the 70s, and a cross-examination whether she thought the crime was a performance IQ in the low 80s. She described him “as conscious choice, or maybe a psychological deficit, she functioning near average in terms of everyday activities.” stated: She summarized his intelligence as “low, average to borderline range of intellectual funct ioni ng.” I certainly think his psychological deficits played into Schmidtgoessling stated that she did not reach any conclusion the situation. He told me that he was defending himself on his character based on the MMPI. against someone who came at him with a knife. In that sense it was a choice. I think that he told me that this Dr. Schmidtgoessling also reported some substance abuse. woman had agreed to the sexual activities and that he had She stated that, although she had very little information other only had sex with her once, and so that was a choice. than Smith’s self-report, it appeared that he had a long- But in terms of like his coldness, and stuff, that is part of standing history of alcohol and marijuana use, and some him. That is the way he always is. cocaine use. Dr. Schmidtgoessling indicated that Smith did not have paranoia, but was very sensitive to being exploited. As noted, Dr. Schmidtgoessling’s mitigation report was She stated he “ha[d] personality flaws and defects,” but that admitted. At the outset, Dr. Schmidtgoessling stated that she “d[idn’t] think he [was] organically impaired and “[n]umerous sources of information were used in constructing defective in that way.” She added that he “lacks empathy,” this report.” She detailed the following: and “is inclined to do things to other people that the rest of us

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Mr. Smith was evaluated by the undersigned, Nancy Rehabilitation and Correction; some limited parole and Schmidtgoessling, Ph.D., Clinical Psychologist, on probation records; very limited school records from the November 27, 1987 and December 12, 1987 at the Cincinnati Public Schools, a copy of the disposition of Hamilton County Criminal Justice Center, and on Reverend Timothy McDonald; part of the defendant’s April 8, 1988 at the Hamilton County Jail Annex. This preliminary hearing; and a copy of the defendant’s included an interview as well as administration of the statement at the Motion to Suppress. Wechsler Adult Intelligence Scale–Revised (WAIS-R) and the Minnesota Multiphasic Personality Inventory Dr. Schmidtgoessling’s report provided further details (MMPI). Also, the defendant was interviewed by Shirley of Smith’s background, particularly in the areas of W. Leahy, MSW, ACSW, Clinical Social Worker, on his developmental history3, his stay at November 9 and 12, 1987 at the Hamilton County Criminal Justice Center. Prior to these interviews, Mr. Smith was made aware of the non-confidential nature of 3 Dr. Schmidtgoessling summarized Smith’s developmental the evaluation and signed an information sheet permitting backgro und as follows: us to use information gathered from these sessions in a mitigation report. Additionally, Ms. Leahy made Mr. Smith’s developmental background is a rather confused, collateral contact with the prosecuting attorney, Mark difficult one. It is unclear exactly who is his biological father, since the mother reportedly had relationships with numerous Piepmeier; the investigating officer, Detective Joe men. Therefore, the information available does not pe rmit us to Hoffman of the Homicide Squad; Lt. Fletcher of the app reciate what role if any his biological father may have played Homicide Squad, the arresting officer; the defendant’s in his development. The defendant’s mothe r is known to have grandmother, Elizabeth Carter; the defendant’s aunt, Pam had several psychiatric hospitalizations. She was diagnosed as Carter; the defendant’s uncle, Gary Carter; and the a simple schizo phrenic . . . .The reco rds established that the mother was unable to provide either appropriate structure, Hamilton County Criminal Justice Center Psychiatric discipline or nurturance for the children in the family. She is Unit. Attempts were made to reach the defendant’s described as both abusive and neglecting towards the children. mother; Mrs. Bertha Smith; Mrs. Smith has no phone Even relatives report that Mrs. Smith would beat the children number but we attempted to reach her both at a with chains a nd belts and make them go to bed without dinner. neighbor’s and . . . her mother’s, although Mrs. Smith ... never returned our phone calls. Additionally, following The man who seemed m ost active in the family during Mr. Mr. Smith’s conviction, this examiner had collateral Smith’s deve lopm ental years was a Mr. Ludie Reid. This man contact with the defense attorneys, Robert Ranz and Dale was described as having a history of alcoholism, numerous and Schmidt, and the prosecutors, Mark Piepmeier and Pat frequent court contacts and a history of inappropriate sexual Dinkelacker. Records were also available for review behavior. Apparently, the children were severely intimidated by Mr. Reid because of his violent acting out when using alcohol. including social histories and psychological evaluations For example, he was described as having pulled knives on the performed by the Hamilton County Department of children and once attempting to choke the defendant’s brother. Human Services; some records from Hamilton County Mr. Reid was also described as having had a history of two Juvenile Court; a one page summary of the defendant’s known sexual offenses . . . . Further, he is known to have been treatment at Longview State Hospital; one prior hospitalized at Lon gview State H ospital and it seems that that is where he me t Mrs. Smith. . . . During the defendant’s psychiatric evaluation performed by the Court developmental period, it seems that Mr. Reid was present in the Psychiatric Center; records from the Ohio Department of home for a short time when Mr. Smith was approximately eight

No. 00-4030 Smith v. Mitchell 19 20 Smith v. Mitchell No. 00-4030 years old and then again during M r. Smith’s mid-teen years.

The Smith family was known to public assistance since 1955 and had an active case with Children’s Services since described that the boys would wet the bed, tear up their clothes, October, 1958. In November, 1958, Mrs. Smith was sent to and similar behaviors. At this time, the children were enrolled Longview State Hospital for treatment. The defendant at that at Millvale School and comp laints of their beha vior co ntinued in time was approximately one year old. Also, so metime within his school. first year of life, Mr. Smith was hospitalized at the Convalescent W ard at Cincinnati General Hospital for a variety of physical Mr. Smith was referred to the school psychologist at this symptoms including pneumonia, measles, tonsillitis, a skin point in his history and although he was described as condition and a vitamin deficiency. The origin of these “emotio nally disturbed” the psychologist was unable to get disorders is not recorde d in available reco rds. When the mother sufficient rapp ort with him to com plete the testing and come to was hosp italized, Mr. Smith and his brother, Norman, were a fuller diagnosis. In October, 19 64, the defendant was sent to placed in the first of two foster ho mes. M r. Smith spent his the Twelfth Street Clinic and apparently put on medica tions to years one through seven (1958 to 1964) at the home of Mr. and calm his hyperactivity. T he de fendant was described by their Mrs. Julian Davis. Apparently, Mr. Smith did well there in the worker at the time as hyperactive yet amiable. T hat clinic first few years of life but around 1962, the foster parents noted recommended that the children be placed either at a structured some behavior problems both at home and at school . . . . In psychiatric facility such as Longview State Hospital or at 1964, while enrolled at South Avondale School, both of the Glenview School. When the second foster home terminated, the Smith brothers were reported to be creating disturbances in the boys were p laced at Allen Ho use. classroom s, fighting on the playground, and stealing lunches and personal property from other children. Additionally, the In July, 1965, the children were placed with their biological brothers were stealing from the foster parents although the foster mother and with M r. Reid despite the earlier recommendation parents repo rted (in records) that they gave ade quate money to from the psychologist. However, the defendant soon began the children. It seems that the boys would often use the money having school problems and was referred for psychological to buy food. In 1964, when the brothers were involved with testing in December, 1965. At that evaluation, he was described destroying some neighbor’s property and the police were called, as functioning in the average range intellectually but as being the foster parents felt that they co uld no longer cope with the two very distractible and having a short attention span. The report brothers and they were transferred to their second foster home. noted that he was unable to concentrate and organize and that his However, records show that the foster mother described the reality contact was “precarious.” The psychologist noted that defendant as an affectionate person who related relatively better Mr. Smith was so insecure that he was unable to relate to adults than to children. . . . satisfactorily to other people and that he attemp ted to repre ss his hostility. It stated that he had a trend toward depression and that Mr. Smith was then transferred to the home o f Mr. and Mrs. his emotional expression was often inappropriate. It was felt that Lewis Harrison w here he stayed from S eptembe r, 196 4 to his thinking “sometimes b orders on autistic.” The thrust of the March, 196 5. Records show, however, that there were problems report was to point out that the extent of Mr. Smith’s deprivation in that home from the beginning. The brothers were stealing and the instability of his home life had prevented the from the foster parents, typically to buy food and toys. The gratification of his basic psychological needs so that his behavior foster parents reported that the boys would laugh in their (the problems were really not surprising. The report recommended foster parents) faces when disciplined. Th e foster parents also that he would function best in a one-on-one situation in school reported that the boys would visit the maternal grandmother and and that he needed a warm, structured living placement. A rural the mother (who had been released from the psychiatric hospital placement was suggested so that he would have no compe titive around 1961) and that following those visits, the bo ys would be peers but if that were not availab le, psychiatric hospitalization quite upset afterwards. At those times, the foster parents was suggested.

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Longview4, and his later functioning.5 discipline, and nurturance were not met. This is because he [sic] family of origin was incapable of caring for him In the mitigation report Dr. Schmidtgoessling also noted because of his mother’s mental illness and inadequate that Smith had reported a rather extensive history of alcohol parenting skills as well as the lack of an effective male and substance abuse. She also reported that Smith described model. Other family members were apparently being in prison twice previously, but that his entire legal disengaged or unable to overcome the family of origin’s history was unknown, because she could not get the court deficits. Mr. Smith spent his earliest years in foster records. homes that seemed to provide the structure and discipline that he needed, but nevertheless were incapable of Dr. Schmidtgoessling reported that Smith’s current meeting his extensive needs. He shows an early history psychological functioning showed him in the low average to of behavior problems (stealing, fighting), bedwetting, borderline range of intellectual functioning. Dr. hyperactivity and strong dependency needs. As he got Schmidtgoessling concluded: older and moved back into the family of origin, he was apparently subjected to abuse, neglect, and intimidation. In summary, Mr. Smith is the product of a rather The parent figures available (Mrs. Smith and Mr. Reid) chaotic family life in which his basic needs for structure, were inadequate in teaching him appropriate and effective adaptive skills. He moved out of his family of 4 origin some place in his mid to later teens and became Dr. Schmidtgoessling discussed Smith’s stay at Longview: apparently highly influenced by “street life.” This reinforced his antisocial tendencies, and even further Soon thereafter, Mr. Smith was placed at the Longview State Ho spital. W e have been informed by that center that their failed to induce a socially appropriate and age records from that time period are destroyed . A one page appropriate set of adaptive skills (appropriate educational summ ary of his stay at Longview State Hospital was forwarded attitude, stable interpersonal relationships, a substance to our Center in 1976 when we performed our prior evaluation. free lifestyle). He apparently became more involved in Tho se records described him as suffering borderline intellectual the use of substances which he initially seemed to use to functioning, as having a slight speech im pediment, as restless and distractible with poor insight, but having no evidence of soothe his feelings of being abandoned and lonely, but psychosis. His hospital course was described as “uneventful” which eventually became habitual to him. . . . At the although he was discharged in August, 1971 (after being time of the offense for which he was convicted, Mr. admitted in February, 1966), on AWOL status. Other records as Smith reportedly was using alcohol and cocaine on a well as Mr. Smith’s self-report and the report of collateral frequent basis, was involved in no significant sources, suggest that he was initially placed at Longview because of behavior problems such as “running around, tearing relationships, and was working part-time. things up and se tting a fire.” This man’s long-term psychological functioning is 5 Dr. Schm idtgoessling reported that there we re few records marked by a very high need for dependence which was documenting his later functioning. He left home at about fifteen years of manifest not only in his excessive interest in food as a age. His educational background was also poorly documented. She noted youngster but in his ongoing substance abuse as an that his scho ol records had been sent to Longview when he tra nsferred adult. However, his psychological capacity for intimate there, and w ere later destroyed by Longview. The Cincinnati Public relationships is poor largely because he has had no Scho ols provided records from the ninth and tenth grades, showing numero us absence s and po or grade s. significant intimate relationships himself during the

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critical developmental period of the first few years of panel unanimously found Smith guilty of specifications I and life. . . . He has never achieved a stable sense of II as to Count One and specifications I and II as to Count direction, never having experienced this in his earlier Two. The court then assessed the mitigating factors. years. Regarding the nature and circumstances of the offense, the court found that “[t]here is absolutely no question that the There are no indications that this man ever suffered a defendant purposely, coldly and brutally killed Mary substantial mental illness such as schizophrenia, manic Bradford while committing the offenses of rape and depression, mental retardation or other psychological aggravated robbery. He stabbed the victim ten times and then disorder that would grossly impair his ability to test raped her as the life drained from her body. This is not a reality. He did suffer hyperactivity of unknown origin mitigating factor and certainly does not militate for mercy.” when younger[.] Now, he does suffer a personality As to the character and background of the offender, the court disorder which impairs his ability to think towards and stated: plan for the future, utilize judgment in a socially appropriate and effective manner, relate intimately to The history, character, and background of the others and use guilt and anxiety to inhibit acting out offender.–As discussed earlier the defendant had a behavior. Lastly, this man does report some difficult childhood. As a result, he developed personality symptomatology that may be the effect of chronic disorders which adversely affected his ability to relate to cocaine use, specifically some restlessness and hyperactivity. It is my opinion that Mr. Smith did not suffer from a Ann. § 292 9.04(B ) (Anderson 20 02). T he panel may consider as gross impairment of reality testing or restraint at the time mitigating evidence: of the offenses for which he as been convicted. It is my the nature and circumstances o f the offense, the history, character, and background of the offender, and all of the opinion that both his personality style and his substance following factors: abuse would have impaired his ability to appreciate the (1) W hether the victim of the offense induced or facilitated it; situation of the victim and to apply his judgment in a (2) W hether it is unlikely that the offense would have been socially appropriate fashion at the time of the offenses committed, but for the fact that offender was under dure ss, for which he was convicted. coercion, or strong provocation; (3) W hether, at the time of committing the offense, the offender, because of a me ntal disease or defect, lacked sub stantial capacity C. Trial Court Weighing to appreciate the criminality of the offender’s conduc t or to conform the offender’s conduct to the requirements of the law; Pursuant to Ohio Rev. Code § 2929.03(D)(3), the trial court (4) T he youth of the o ffender; weighed the aggravating factors against the mitigating (5) If the offender’s lack of a significant history of prior criminal factors.6 The court noted that by its verdict, the three-judge convictions and delinquenc y adjudications; (6) If the offender was a participant in the offense but not the principal offender, the degree of the offender’s participation in 6 the offense and the degree o f the offend er’s participatio n in the Under Ohio law, once the prosecution has proven one or more acts that led to the death of the victim; statutory aggravating circumstances beyond a reasonable doub t, the jury (7) Any other factors that are relevant to the issue of whether the or sentencing panel must weigh the aggravating circumstances against the defendant should be sentenced to death. mitigating evidence b efore impo sing a death sentence. Ohio Rev. Code Ohio Rev. Co de Ann. §292 9.04(B) (And erson 2002).

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others. He is unable to appreciate the needs of others and It is the opinion of this three-judge panel that the has little regard for human life. This panel recognizes mitigating factors present pale before the fact that the Smith’s personality disorders and difficult childhood as defendant’s actions were plotted, vicious, persistent and a mitigating factor. utterly callous. Mary Bradford was not stabbed once but ten times. She then had to suffer the final indignities of The sentencing panel rejected Smith’s argument that the being raped by Smith while she lay dying and then victim provoked him because she came at him with a knife. having her property stolen. It is clear that the defendant The court observed that Bradford was a slight woman who went to her apartment to obtain “restitution”. He suffered from a lung ailment that required her to keep a obtained it in a violent and ruthless manner, with breathing device. The sentencing panel also found no absolutely no regard for the life of Mary Bradford. We evidence of duress, coercion or strong provocation. The court find no conduct or provocation on the part of Mary found that even if the cocaine was stolen, this was not “strong Bradford which would warrant the defendant’s lethal provocation.” As for the third mitigating factor under response. § 2929.04(B), the trial court held that Smith did not suffer from a mental disease or defect at the time of the crime, and The panel unanimously concluded that the aggravating specifically noted that Smith did not claim insanity at trial. circumstances outweighed all the mitigating factors Smith advanced, and imposed the death penalty on each murder Smith’s youth was not a factor, nor his lack of significant count. The panel also sentenced Smith to a minimum term of history of criminal convictions. Further, since he was the ten years and a maximum term of twenty-five years, with ten principal and only offender, his degree of participation in the years actual incarceration to run consecutively, as to Count III crime was not a mitigating factor. Finally, as to the catchall (rape) and Count IV (aggravated robbery). factors, the sentencing panel noted that although Smith claimed to be drunk and high on the night of the offense, there D. Direct Appeals was no evidence presented to indicate that Smith was not in complete control of his faculties at the time. As required by statute, see Ohio Rev. Code Ann. § 2929.05, the Ohio Court of Appeals and Ohio Supreme Court In weighing the mitigating factors against the aggravating conducted an independent weighing analysis. Both concluded factors, the sentencing panel concluded: that the aggravating factors outweighed the mitigating factors. The Ohio Court of Appeals held as follows: A careful and meticulous review of the mitigating factors discloses that the defendant had a difficult We have considered Smith’s confession, in which he childhood. He had no real family to take care of said that Bradford threatened him with a kitchen knife, him–nurture him. There is a history of mental illness in his difficult childhood, and the personality defect that his family. As a result, Smith grew up with a personality affected his ability to relate to others. We cannot accept disorder that affected his ability to form personal Smith’s claim that Bradford induced or provoked relationships or to appreciate the needs and feelings of Smith’s response in light of the uncontradicted physical others. He became cold and unfeeling with a lack of evidence relative to her slight stature, her severe regard for human life. He developed a specific respiratory disability, the absence of defensive wounds discomfort and anger toward women. and marks on her body as noted by the coroner, the ten

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stab wounds, and the location of Bradford’s blood and apparently because he had been hospitalized at Longview as bloody clothing in her apartment. Nor can we find that a child, and was administered both shock therapy and anti- Smith’s childhood and personality defect, when psychotic drugs. compared to the nature and circumstances of the offenses herein, are of a quality to mitigate his sentence to the Dr. Robert Smith, a clinical psychologist who specializes extent that the aggravating circumstances of rape and in substance abuse and treatment, administered a series of aggravated robbery do not outweigh the mitigating tests designed to detect the extent of Smith’s chemical factors beyond a reasonable doubt. dependence. Dr. Smith diagnosed Smith with cocaine dependence, cannabis dependence, and alcohol dependence. State v. Smith, No. C-880287, 1990 WL 73974, at *9 (Ohio Dr. Smith opined that “the court ordered evaluations were Ct. App. June 6, 1990) (per curiam). remiss in adequately assessing the extent and impact of [Smith’s] alcohol and substance abuse.” Dr. Smith also stated In its independent reweighing, the Ohio Supreme Court that it was “plausible” that Smith had consumed alcohol, concluded that: marijuana, and cocaine on the evening of the offense, and that, “[g]iven the data reported, it is likely that Mr. Smith’s When weighing the aggravating circumstances against ability to adequately judge the consequences of his behavior mitigating factors, we find that the aggravating and to act in his own best interest may have been impaired.” circumstances do outweigh the mitigating factors beyond a reasonable doubt. The aggravating circumstances are Dr. James Dobbins, a clinical psychologist, also evaluated substantial–the rape and robbery of a helpless woman in Smith. Dr. Dobbins stated that he reviewed materials her own home by someone she invited in. In contrast, provided by counsel7, conducted two clinical interviews with the mitigation case appears inconsequential. While Smith and administered the MMPI, the Shipley Institute unfortunate, Smith’s upbringing did not result in a Living Scale, Defense Scale of Jackson Personality Research mental disease or defect, as opposed to a character defect. Scale, and the Thematic Apperception Test. Dr. Dobbins Smith vacillates between accepting responsibility for determined that Smith “has many background and what occurred and trying to shift the blame onto others. developmental problems which would contribute to a poor His claims lack authenticity, and he has not solidly psychological adjustment in adult life.” Like Dr. demonstrated any remorse, sorrow, repentance, or desire Schmidtgoessling, Dr. Dobbins noted that Smith suffered for rehabilitation. from malnutrition and resulting vitamin deficiencies as a neonate, as well as pneumonia. Dr. Dobbins stated that Smith State v. Smith, 574 N.E.2d 510, 521 (Ohio 1991). E. State Post-Conviction Proceedings 7 Dr. D obbins stated that he reviewed the following materials: The OPD represented Smith in his state post-conviction Cincinnati Public School Records proceedings. The OPD investigated Smith’s background and Hamilton County Psychiatric Court Clinic Records Affidavits of friend s and family me mbe rs of W illiam H . Smith produced Hamilton County Social Services Records. Post- Transcript of Mitigation Hearing conviction counsel also contacted several clinical Transcript of statement to Cincinnati Police psychologists to evaluate Smith for organic brain dysfunction, Case conference s with staff from the Ohio Public Defender Commission

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was raised in a severely disturbed family. Dr. Dobbins noted reported that Smith denied any history of seizures or head that Smith was placed in foster care, and then Longview State injuries resulting in unconsciousness. She noted that Smith’s Hospital. Dr. Dobbins further noted that while at Longview, mother was frequently under psychiatric care, that he was in Smith was administered a psychotropic drug. Dr. Dobbins various foster placements, and that at age eight, Smith was confirmed that Smith experienced a great deal of physical probated to Longview and was medicated with Thorazine abuse from his parents and other caregivers. during hospitalization. Dr. Burch observed that “[h]istory of alcohol and substance abuse has also been inconsistent.” Dr. Dobbins concluded that Smith’s “school and social problems are more likely due to his chaotic family structure Dr. Burch concluded that Smith had a “mild, diffuse and the likelihood of neurological impairment from perinatal cerebral dysfunction.” Dr. Burch noted that Smith “earned a and postnatal infections, vitamin deficiencies, and long term Halstead-Reitan Impairment Index of 0.7, which would alcohol abuse.” He diagnosed Smith as DSM III-R Axis I suggest a moderate level of impairment.” She added: 305.00 Alcohol Abuse, 304.30 Cannabis Abuse, 304.20 “However, his performance was no more than mildly Cocaine Dependence; and Axis II 300.90 Unspecified Mental impaired on any of the measures--evidence against the Disorder (nonpsychotic) with antisocial features. presence of a discrete lesion. While the results are not strongly lateralizing, there does appear to be more left Dr. Kathleen Burch, a clinical psychologist, also evaluated hemisphere impairment.” Smith to determine whether Smith showed signs of “cerebral dysfunction” that might have contributed to “adaptive Dr. Burch further observed that Smith’s “dysfunction deficits.” Dr. Burch administered a battery of appears static--that is, nonprogressive. There is no evidence neuropsychological tests.8 Like Drs. Schmidtgoessling and of an acute lesion, or ongoing toxic, metabolic, or infectious Dobbins, Dr. Burch noted that Smith was hospitalized as an process.” She noted that Smith’s deficits appeared on tasks infant with pneumonia and vitamin deficiency. Dr. Burch involving functions associated with frontal lobe activity such as difficulties in maintaining a cognitive set, and decreased flexibility in thinking. She further noted that his 8 concentration and attention skills are impaired. She observed Dr. B urch stated that she administered the following tests: that: W echsler Adult Intelligence Scale-Revised; W echsler Memory Scale-Revised; Category Test; Speech Sounds Perception T est; The pattern of results suggests either the sequelae of Seashore Rhythm Test; Finger Oscillation T est; Aphasia Screening Test; Frontal Lob e Battery; T rail M aking T est; diffuse traumatic brain damage or of chronic alcohol Complex Figure Test; California Verbal Learning Test; abuse. He has marked difficulty with attention and Developmental T est of Visual-Motor Integration; Tactual concentration may be more long-standing, and the result Performance Test; Hoope r Visual Organiza tion T est. of developmental deficit. If the deficits do, indeed result Dr. Burch also stated that she re viewed the following materials from alcoholism, they would be expected to reflect some provided by counsel: Police Re port improvement resulting from extended sobriety. In other Reports of Previous Psychological Evaluations words, if he had been tested shortly after his arrest, the Treatment Summaries test results would have most likely indicated more severe Affidavits of Friends and Family Members of W illiam H . Smith dysfunction. It is unlikely that continued abstinence Case conferences with staff from the Ohio Public Defender would result in an further improvement of his cognitive Commission

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status. . . . Overall, the results suggest mild attentional evidence of Smith’s unfortunate upbringing, substance- problems, difficulty with concentration and mental abuse history and personality disorders, as set forth in the tracking, mild problems with nonverbal and verbal supporting affidavits, was merely cumulative to that reasoning, and a tendency to show low initiative and presented at the mitigation hearing. Consequently, we respond to the obvious. The results are consistent with uphold the trial court’s conclusion that Smith has a pattern of diffuse, mild cerebral impairment. presented no documentary evidence demonstrating prejudice[.] Dr. Burch’s tests results were similar to those of earlier reports. On the WAIS-R, Smith scored a verbal IQ of 85, a State v. Smith, No. C-930404, 1994 WL 273267, at *4 (Ohio performance IQ of 89, and a full scale IQ of 85. Ct. App. June 22, 1994) (per curiam). The Ohio Supreme Court summarily dismissed Smith’s appeal from that In her conclusions, Burch reiterated that decision. [t]he results, again, are more suggestive of the sequelae F. Federal Habeas of chronic alcohol abuse or, possibly of repeated head trauma. . . . The deficits observed characteristically are The district court held that trial counsel’s investigation and associated with poor impulse control and deficient preparation for mitigation were not ineffective. The district planning and problem solving. court noted in particular that trial counsel called as its expert witness Dr. Schmidtgoessling, who presented information that The state post-conviction trial court denied Smith’s motion tended to establish several mitigating factors. Smith v. without an evidentiary hearing. The Ohio Court of Appeals Anderson, 104 F. Supp.2d 773, 809 (S.D. Ohio 2000). The rejected Smith’s claim of ineffective assistance of counsel in court held that Smith “fail[ed] to establish that counsel were the mitigation phase. The court reasoned that: ineffective and that Petitioner suffered prejudice from any alleged deficiency, in light of the overwhelming evidence that The affidavits [of family members and psychologists] affirms the reliability of both the finding of guilt and the share a common theme, i.e., that Smith’s early years imposition of sentences.” Id. were fraught with instability, abuse, neglect and a total lack of parental love and support. During the mitigation II. Standard of Review hearing, Smith’s mother, two uncles, his minister and a psychologist testified concerning their opinions that Petitioner’s habeas application was filed in 1995, prior to Smith had an unstable and difficult childhood, that he the enactment of the Antiterrorism and Effective Death had a history of substance-abuse problems, that he was a Penalty Act (“AEDPA”); the pre-AEDPA standard of review follower and could be easily manipulated and that he had therefore applies. Coleman v. Mitchell, 268 F.3d 417, 427 personality disorders which prevented him from relating (6th Cir. 2001); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. to others. 1999). Under that standard, we presume the correctness of the state court factual findings, unless rebutted by clear and The trial court, in its opinion, stated that it convincing evidence, and we review determinations of law, or “recognize[d] Smith’s personality disorders and difficult mixed questions of fact and law, de novo. Coleman, 268 F.3d childhood as a mitigating factor.” We conclude that the at 427; Mapes, 171 F.3d at 413. We may not issue a writ of

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habeas corpus unless the state court proceedings were functioning of the adversarial process that the trial cannot fundamentally unfair as a result of a violation of the be relied on as having produced a just result. Constitution or laws or treaties of the United States. Powell v. Collins, 328 F.3d. 268, 280 (6th Cir., 2003). Id. at 686. This principle applies equally to a capital sentencing proceeding. Id. at 686-87. III. Analysis In Strickland, the Supreme Court set forth a two-part test A. Ineffective Assistance of Trial Counsel for evaluating ineffective assistance of counsel claims. First, the defendant must demonstrate that counsel’s performance 1. Mitigation was deficient in that counsel’s errors were so serious that counsel was not functioning as constitutionally guaranteed. Smith argues that the district court erred in concluding that Id. at 687. Second, the defendant must establish that the Smith was not denied constitutionally effective assistance of inadequate assistance prejudiced the defense. To establish counsel in the penalty phase of his trial. The Sixth prejudice, the defendant must show that “counsel’s errors Amendment to the United States Constitution provides, inter were so serious as to deprive the defendant of a fair trial, a alia, that “[i]n all criminal prosecutions, the accused shall trial whose result is reliable.” Id. enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. As the Supreme Court The proper standard for attorney performance is reasonably stated in Strickland, “the Sixth Amendment right to counsel effective assistance. Id. Thus, to establish cause, the exists,” and is necessary “to protect the fundamental right to defendant must show that counsel’s performance “fell below a fair trial.” See Strickland v. Washington, 466 U.S. 668, 684 an objective standard of reasonableness.” Id. at 688. (1984). A fair trial “is one in which evidence subject to Reasonableness is determined by considering all the adversarial testing is presented to an impartial tribunal for circumstances. Id. resolution of issues defined in advance of the proceeding.” Id. at 685. Counsel plays a critical role in the adversarial To show prejudice, the defendant must demonstrate to a system embodied in the Sixth Amendment because counsel’s reasonable probability that, but for counsel’s errors, the result skill is needed to accord a defendant the “‘ample opportunity would have been different. Id. at 694. In the context of a to meet the case of the prosecution.’” Id. (quoting Adams v. challenge to a death sentence, the prejudice question is United States ex rel. McCann, 317 U.S. 269, 275 (1942)). “whether there is a reasonable probability that, absent the Thus, “‘the right to counsel is the right to the effective errors, the sentencer–including an appellate court, to the assistance of counsel.’” Id. (quoting McMann v. Richardson, extent it independently reweighs the evidence–would have 397 U.S. 759, 771, n.14 (1970)). In defining the concluded that the balance of aggravating and mitigating constitutional requirement of effective assistance, the circumstances did not warrant death.” Id. at 695. Strickland court stated: These principles are not mechanical rules, rather principles In giving meaning to the requirement, however, we must to guide the process of deciding whether the challenged take its purpose–to ensure a fair trial–as the guide. The proceeding was fundamentally fair. Id. at 696. Thus, the benchmark for judging any claim of ineffectiveness must court deciding an ineffective assistance claim need not be whether counsel’s conduct so undermined the proper

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approach the inquiry in the same order or even address both We find no cause or prejudice under Strickland because all prongs if the defendant fails to establish one. Id. at 697. of this evidence was presented at mitigation.9 As exhaustively detailed above, virtually all of the mitigating Smith characterizes his ineffectiveness claims as sins of elements that Smith complains of were presented via Dr. omission and affirmative mistakes. As for omissions, Smith Schmidtgoessling’s testimony and her mitigation report. In claims that counsel were ineffective in investigating and her testimony, Dr. Schmidtogessling explained that Smith’s preparing for mitigation for failing to (1) communicate and mother had a history of mental illness, that his biological follow through with mitigation experts at the OPD, namely father was uninvolved, that he was placed in a number of Core, (2) communicate and follow through with foster homes and at Longview. She described the lack of Schmidtgoessling once she was appointed as a “friend of the structure, nurturing, and the physical and emotional abuse. court” expert, (3) investigate Smith’s background, (4) develop Dr. Schmidtgoessling also stated that his IQ was in the an effective strategy for the mitigation hearing, and borderline mentally retarded range, and that he abused (5) request a full psychiatric examination, given Smith’s alcohol, marijuana, and cocaine. Dr. Schmidtgoessling’s history at Longview State Hospital. Smith claims that, as a mitigation report describes in greater detail Smith’s family result, the trial counsel failed to present a full picture of background, developmental history, his commitment to Smith’s tragic life. As for affirmative mistakes, Smith claims Longview, and his later functioning as a young adult. In fact, deficient performance in counsel’s decision to allow his we are at somewhat of a loss in trying to discern what mother, who is schizophrenic, to read a statement that evidence Smith believes was not presented at mitigation. contained damaging information. He also faults counsel for Smith himself fails to identify which documents were introducing the testimony of his former pastor, who revealed available and reviewed by OPD at the post-conviction phase, that Smith beat his wife. but not reviewed by Dr. Schmidtgoessling. Smith alleges that all of the foregoing omissions resulted in The foregoing facts were obviously part of the record less than full and accurate mitigation evidence. Smith argues because both the Ohio Court of Appeals and the Ohio that post-trial evidence shows that he was born to a single mother, one of six children, with many different fathers. Further, his family was poor and uneducated, and involved with social services even before his birth. Smith points out 9 In the dissent’s view, “the facts of this case lead [it] to the same that the records reveal that he had a traumatic infancy, conclusion” as held in Powell, “that the testimony of a defense expert may including that his mother was schizophrenic and that his have provided facts and information to consider at mitigation which may biological father was uninvolved. Smith notes further that he have led to a different sentence.” Sp ecifically, the dissent points out that lived in foster homes, was abused by his stepfather, and that “Smith endured an exceedingly difficult childhood,” that he “spent time he himself was committed to Longview for five and one-half living with abusive foster parents,” that he “was diagno sed with diffuse cerebral dysfunction,” and that he “spe nt time in a juvenile psychiatric years, where he received shock therapy, and antipsychotic facility where , among other things, he received electric sh ock therap y.” drugs. Smith adds that his I.Q. is in the borderline mentally The dissent igno res the fac t that, as the m ajority opinio n documents, all retarded range, and that he has been diagnosed with diffuse of this evidence was presented at mitigation, in Dr. S chmidtgoessling’s organic brain impairment which was present at the time of the testimony and in her mitigation report. The three-judge sentencing panel crime. reviewed all of this evidence, as did the Ohio appellate co urts in their independent reweighing of the aggravating circumstances against the mitigating factors.

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Supreme Court referred to them upon direct review. The State v. Smith, 574 N.E.2d at 519. The Ohio Supreme Court Ohio Court of Appeals found that also noted Smith’s IQ scores, his reported alcohol and substance abuse, his ongoing anti-social behavior as an adult, Smith’s psychiatric history reflected that he was abused his hypersensitivity, and the lack of schizophrenia, as a child by his mother and stepfather. At ten years of retardation, or any major psychological disorder. Id. at 519- age he spent three years in Longview Hospital’s 20. Like the trial court, the Ohio Supreme Court weighed children’s unit. He dropped out of school–according to these mitigating factors: Schmidtgoessling, in the tenth grade–with a history of hyperactivity, learning deficiency, poor achievement, and Smith’s history, character, and background do offer disciplinary problems. Dr. Schmidtgoessling found that mitigating features. Smith clearly had an arduous Smith’s IQ fluctuated, but that he was not retarded. childhood, and his early life shaped a personality with Smith told her that he had a long-standing history of serious character defects. His limited mental capacity, alcohol and marijuana use and a two-year history of childhood deprivation, and alcohol and drug dependency cocaine use, which she described as “moderate.” Dr. all reflect mitigating features. We find his history and Schmidtgoessling concluded that Smith did not have a background to be a mitigating factor, as did the trial mental illness or defect, but suffered from a nonorganic court. personality defect that made him impulsive and “sensitive to being ripped off.” Id. at 520; see also id. at 521 (“As to significant ‘other factors,’ we recognize Smith’s deprived childhood, flawed State v. Smith, 1990 WL 73974, at *9. The Ohio Supreme upbringing, character defects, and drug and alcohol Court, as part of its independent reweighing of aggravating dependency as mitigating.”). In other words, trial counsel and mitigating factors on direct appeal, characterized the was not ineffective because all the information of which psychological evidence presented during mitigation in the Smith complains was presented to the sentencing panel, and following manner: was part of the record before the Ohio Court of Appeals and the Ohio Supreme Court. Smith, born in October 1957, came from a chaotic home environment, with a schizophrenic, abusive, neglectful From what we can tell, the only allegedly new mitigating mother, and an unknown father. Early psychological evidence that Smith presents is that he suffers from organic reports on Smith showed problems. A psychologist in brain damage. That evidence is not compelling, however, 1964 termed him “emotionally disturbed.” In 1965, a because it is not conclusive. Dr. Smith never states that psychologist said his “reality contact was ‘precarious’” Smith suffers from organic brain damage. The closest thing and his “thinking sometimes borders on autistic.” In to organic brain damage in Dr. Smith’s statement is that 1965, after acting destructively and setting a fire, he was Smith was dependent on alcohol, marijuana, and cocaine, and committed to Longview, a state mental hospital. In that each of these chemicals affects the central nervous childhood, he displayed “hyperactivity, some learning system. But Dr. Schmidtgoessling herself also documented problems secondary to distractibility, poor achievement Smith’s substance abuse. And Dr. Smith merely opined that in school, a lot of behavior problems, stealing, fighting it was “plausible” that Smith had abused substances on the in school.” night of the offense, and that if he did, it was “likely” that Smith’s judgment was impaired.

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Dr. Dobbins likewise did not diagnose Smith with organic (6th Cir. 2003); Lorraine v. Coyle, 291 F.3d 416, 436 (6th brain damage, concluding only that there is a “likelihood of Cir. 2002), cert. denied, 123 S. Ct. 1621 (2003). In short, trial neurological impairment.” Nor did Dr. Dobbins ever explain counsel’s performance was not unreasonable. whether this likelihood of neurological impairment would have impacted Smith’s criminal act. Dr. Burch diagnosed The remaining alleged omissions are of minor magnitude, Smith with “mild diffuse cerebral dysfunction.” She further and do not reflect objectively unreasonable performance, let stated that Smith’s “performance was no more than mildly alone prejudice. Smith criticizes trial counsel for failing to impaired on any of the measures[.]” More telling, Dr. Burch consult with Core. The record shows that Smith’s trial identified only one deficit that was relevant to Smith’s actions counsel made initial contact with Core in January 1988, and on the night of the murder--poor impulse control. Dr. Burch that counsel actually sent her some materials regarding Smith, did not opine that Smith’s impairment constituted either including Schmidtgoessling’s NGRI report, which was quite diminished capacity or insanity under Ohio law. comprehensive. Thus, Smith is incorrect to the extent he suggests that counsel did not provide any materials to Core. Although he faults trial counsel for failing to obtain a It also appears that trial counsel were stymied in their efforts neuropsychological examination that would reveal evidence because Core refused to proceed further without funding, and of organic brain damage, post-conviction counsel’s efforts on trial court did not order funds until late February 1988. It is that score were equally unavailing. In essence, then, the only not clear why counsel ultimately switched to Dr. evidence the sentencing panel did not hear was that Smith Schmidtgoessling. Core is probably a qualified mitigation suffered from a lack of impulse control. Yet, this was not expert, but the record reflects that Dr. Schmidtgoessling is new evidence, because as the Ohio Court of Appeals noted on too. Dr. Schmidtgoessling has been involved with death direct appeal, Schmidtgoessling concluded that Smith penalty cases since Ohio’s modern death penalty statute went suffered from a nonorganic personality defect that made him into effect in 1981, and her NGRI and mitigation reports as “impulsive.” See State v. Smith, 1990 WL 73974, at *9. well as her testimony demonstrate that she was very thorough Thus, as the Ohio Court of Appeals stated on post-conviction in her investigation of Smith’s background in the quest for review, the evidence presented “was merely cumulative to mitigating evidence. In fact, Dr. Schmidtgoessling testified that presented at the mitigation hearing.” State v. Smith, 1994 that she usually became involved in mitigation at the WL 273267, at *4. Furthermore, as the Warden points out, instruction of the OPD or from a private defense attorney. the fact that Smith forcefully stabbed the victim ten times, Furthermore, counsel had Dr. Schmidtgoessling’s NGRI then had sex with her a second time, and made four separate report, so at the time they decided to use her instead of trips to take her property to his car, and then left her to die, Liverani, they had a good idea of what mitigation evidence belies any plausible claim of lack of impulse control. she would present. A comparison of the NGRI report and mitigation report confirm this. Thus, it simply cannot be said Other than the slim evidence of a “mild diffuse cerebral that counsel’s choice of Dr. Schmidtgoessling as their dysfunction,” which manifested primarily as poor impulse mitigation expert was deficient. Cf. Wickline v. Mitchell, 319 control, Smith has failed to point to any mitigating evidence F.3d 813, 820-22 (6th Cir. 2003) (holding that trial counsel that was not actually presented. Absent the existence of some were not ineffective for failing to perform a separate actual medical proof of an organic brain disorder, there can be mitigation investigation; counsel testified that their pretrial no cause in the failure to find and present it, and obviously no investigation was conducted for both guilt phase and prejudice either. See Thompson v. Bell, 315 F.3d 566, 590 mitigation phase purposes and the mental health evidence

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submitted with the petitioner’s petition for post-conviction Smith has not identified any evidence that counsel relief indicated that the petitioner did not suffer from any overlooked. mental condition relevant to the murders; even if deficient performance, the petitioner failed to show prejudice). For this reason, Smith’s reliance on Williams v. Taylor, 529 U.S. 362 (2000), and Glenn v. Tate, 71 F.3d 1204 (6th Cir. Smith criticizes counsel for failing to investigate on their 1995), is misplaced. In both of those cases, the courts own. He also claims that counsel failed to request records identified mitigation evidence that existed but was not from the Hamilton County Juvenile Court or the Hamilton presented. See Williams, 529 U.S. at 395-98 (finding County Department of Human Services. However, Dr. ineffective assistance of counsel because counsel failed to Schmidtgoessling testified that trial counsel requested and investigate and introduce evidence of the petitioner’s received from her the documents that formed the basis of her nightmarish childhood, including severe and repeated NGRI report. Thus, even if trial counsel’s performance was beatings by his father, and available evidence showing that deficient, there is no prejudice. In any event, prior to the petitioner was borderline mentally retarded; also finding mitigation counsel interviewed several witnesses, including prejudice in that the evidence “might well have influenced the Smith’s wife, grandmother, and other relatives. Smith faults jury’s appraisal of his moral culpability”); Glenn, 71 F.3d at counsel for not meeting with his mother prior to the 1207-11 (finding trial counsel ineffective at mitigation due to mitigation hearing. Again, even if Smith could somehow their failure to develop and present mitigating evidence demonstrate cause on this front, Smith has shown no regarding the petitioner’s background, including the fact that prejudice. in school he had been classified as mentally retarded, and that he suffered organic brain damage, despite its availability). Smith also faults trial counsel for failing to communicate Rather, Smith’s situation is more akin to the petitioners in with Dr. Schmidtgoessling once she was appointed as the Thompson, 315 F.3d 566, and Lorraine, 291 F.3d 416, In friend of the court expert, after conviction and just prior to both cases we found no ineffective assistance of counsel mitigation. From Dr. Schmidtgoessling’s deposition based on the failure to present mitigating evidence of organic testimony it appears that counsel may not have been up to brain damage, because the petitioners never established that speed on mitigation evidence at certain points during pretrial organic brain damage was present. See Thompson, 315 F.3d preparation. Yet again, even if we were to conclude that trial at 590-92 (and cases cited therein); Lorraine, 291 F.3d at 436- counsel’s purported ill-preparedness prior to the mitigation 39 (and cases cited therein). As we stated in Lorraine, “if hearing somehow constituted cause, Smith fails to show any habeas counsel could not find evidence of organic brain prejudice whatsoever. Indeed, Dr. Schmidtgoessling herself damage, then trial counsel cannot be deemed ineffective” for presented a comprehensive portrait of Smith to the sentencing failing to find it either. Id. at 436. Cf. Mason v. Mitchell, 320 panel, and did not indicate that she was ill-prepared. Cf. F.3d 604, 619-27 (6th Cir. 2003) (holding that the petitioner Powell, 328 F.3d at 276 (noting that Dr. Schmidtgoessling was entitled to an evidentiary hearing on the adequacy of trial testified at petitioner Powell’s sentencing hearing that “she counsel’s investigation and presentation of mitigation was not given sufficient time to conduct an appropriate evidence; noting that readily available mitigation evidence investigation into Petitioner’s mental makeup, to interview which did not enter the record until the post-conviction stage necessary family members and acquaintances, or to run offered an arguably reasonable probability of humanizing the needed diagnostic tests”). As we have stated and restated, the petitioner before the jury such that he might not have been sentencing panel had ample mitigating evidence before it, and sentenced to death).

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Smith’s case is also not like a recent decision of this Court, counsel failed to find and present available mitigating Powell. In Powell, a panel of this Court found that the evidence to the sentencing panel. And there is certainly no petitioner had been deprived of his right to expert showing of prejudice, because the sentencing panel was psychological assistance at the sentencing phase of his trial. presented with ample evidence of Smith’s mental makeup. In reaching this conclusion, the Powell court emphasized Powell is not persuasive. defense counsel’s failure to make reasonable investigative efforts, Powell, 328 F.3d at 292, and to research and collect The most recent decisions of the Supreme Court and this necessary information in order to present effective mitigation Court further bolster our ruling here. See Wiggins v. Smith, at the penalty phase. In particular, the Powell court noted that 123 S.Ct. 2527 (2003), and Frazier v. Huffman, – F.3d –, defense counsel were ineffective because they failed to No. 01-3122, 2003 WL 22069661 (6th Cir. Sept. 8, 2003). In investigate the petitioner’ background, spent less than two full Wiggins, trial counsel’s investigation of mitigating evidence business days preparing for the penalty phase of the trial, and consisted of three sources; psychological testing, the written failed to interview and present numerous mitigating witnesses presentence report, which included a one-page account of the who were available and willing to testify on the petitioner’s petitioner’s personal history, and social service records (DSS) behalf. Instead, trial counsel presented only one witness at documenting the petitioner’s placements in foster care. mitigation, Dr. Nancy Schmidtgoessling, the same expert Wiggins, 123 S.Ct at 2536. The Supreme Court held that the witness used by trial counsel in this case. scope of trial counsel’s investigation was unreasonable when counsel failed to investigate the petitioner’s social history, Here, by contrast, trial counsel presented five witnesses at despite knowledge from their client’s presentence report that mitigation, and its principal witness, Dr. Schmidtgoessling, he lived in “misery as a youth,” and described his own presented a comprehensive picture of Smith’s family, social, background as “disgusting.” The Supreme Court found that psychological background, based upon extensive review of counsel’s performance was also unreasonable in light of the “[n]umerous sources of information,” which included not DSS records, which revealed that the petitioner’s mother was only psychological tests, but also interviews, hospital records, a chronic alcoholic, and that he was sent to various foster school reports, and social services records. Furthermore, in homes. Id. at 2537. The Wiggins Court stated that “any this case, Dr. Schmidtgoessling did not testify at mitigation reasonably competent attorney would have realized that that she “was not given sufficient time to conduct an pursuing these leads was necessary to making an informed appropriate investigation into Petitioner’s mental makeup, to choice among possible defenses. . . . Indeed, counsel interview necessary family members and acquaintances, or to uncovered no evidence in their investigation to suggest that a run needed diagnostic tests.” See id. at 276. In this case, Dr. mitigation case, in its own right, would have been Schmidtgoessling also did not indicate here, as she did in the counterproductive, or that further investigation would have Powell case, “that Petitioner likely suffered from some been fruitless.” Id. Cf. Johnson v. Bell, – F.3d –, No. 01- organic brain dysfunction and that such a defect could be 5451, 2003 WL 22082176, at * 5-6 (6th Cir., Sept. 10, 2003) detected only with tests that had not yet been performed on (holding that, unlike Wiggins, where counsel had sufficient Petitioner.” See id. Unlike the petitioner in Powell, Smith information about their client’s abysmal childhood such that did not present any “affidavits from friends and family their failure to pursue further investigation was objectively members” who could have offered the jurors “first hand- unreasonable, “there is nothing to suggest that counsel in the accounts from those who knew Petitioner best.” See id. at instant case ignored known leads that might have helped them 292. In short, unlike Powell, Smith has not demonstrated that to prepare their case in mitigation”; and that “[t]he mitigating

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evidence proffered by petitioner falls short of the quantum counsel failed to present a full and accurate picture of Smith’s required by Wiggins, Cone, and Williams”). background to the sentencing panel. Thus, we cannot find cause, because Smith has not identified deficient In Frazier, this Court found counsel’s performance was performance. It therefore follows that we cannot find objectively unreasonable for failing to investigate and present prejudice either. evidence of a brain impairment resulting from a fall off a ladder, which they would have discovered from their review B. Cumulative Errors of medical records. Frazier, 2003 WL 22069661, at *11. Further, affidavits presented during state postconviction Smith also contends that his trial attorneys were ineffective proceedings documented the petitioner’s head trauma and because they failed to rebut testimony that Smith lacked suggested that a correlation could exist between the remorse. Smith contends that counsel should have objected, petitioner’s injury and his head trauma. We held that “[w]e and rebutted this statement with Dr. Weaver’s NGRI report, can conceive of no rational trial strategy that would justify the which showed that Smith displayed remorse during his failure of Frazier’s counsel to investigate and present competency review with Dr. Glenn Weaver. In the report, Dr. evidence of his brain impairment.” Id. Weaver indicated that Smith had broken down when describing the crime. Smith claims prejudice “because, In stark contrast with Wiggins and Frazier, “[o]ther than absent this improper argument, the balance of aggravating and the slim evidence of ‘mild diffuse cerebral dysfunction’, . . . mitigating factors could have shifted in favor of sparing his Smith has failed to point to any mitigation evidence that was life.” Br. at 52. not actually presented.” Here, principally through the testimony and report of Dr. Schmidtgoessling, the sentencing Even if improper, there is no prejudice in light of the panel had ample mitigating evidence to weigh against the overwhelming aggravating (as well as mitigating) evidence aggravating circumstances of the crime. To the extent that presented. Furthermore, the argument was made to a three- Wiggins and Frazier reflect what constitutes ineffective judge panel, so any inflammatory effect was de minimis assistance in failing to investigate and develop available anyway. Cf. Harris v. Rivera, 454 U.S. 339, 346 (1981) (per mitigating evidence, they confirm that counsel’s decision to curiam) (“In bench trials, judges routinely hear inadmissible present the mitigation report and testimony of Dr. evidence that they are presumed to ignore when making Schmidtgoessling detailing Smith’s social history was decisions.”); Wickline, 319 F.3d at 823-24 (holding that the objectively reasonable. See Strickland, 466 U.S. at 688 three-judge panel would not likely have been misled by any improper evidence); United States v. Joseph, 781 F.2d 549, As Strickland made clear, our role on habeas review is not 552-53 (6th Cir. 1986) (stating that “[i]t is well settled that in to nitpick gratuitously counsel’s performance. After all, the a non-jury trial the introduction of incompetent evidence does constitutional right at issue here is ultimately the right to a not require a reversal in the absence of an affirmative showing fair trial, not to perfect representation. Strickland, 466 U.S. of prejudice.”). Finally, Smith’s own confession at 684. Rather, we are looking to see “whether counsel’s independently revealed his lack of remorse. conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having Smith further faults counsel for reading into the record produced a just result.” Id. at 686. We cannot say that here, during mitigation his unsworn statement admitting guilt. This because Smith has offered us no evidence to demonstrate that claim is also without merit, because it is clear from the record

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that this was Smith’s decision and not trial counsel’s. At which the defendant’s mental condition was “seriously in counsel’s request, the trial court made sure that Smith knew question” upon the defendant’s “threshold showing.” Id. at of his right to testify, had created the written statement 82. Furthermore, the Court held that the state was obliged himself, and had discussed the implications of this strategy merely to provide one competent psychiatrist, and that it with his trial counsel. It was noted on the record that Smith could choose that psychiatrist. In other words, the and his trial counsel took a 35 minute recess specifically to defendant’s right does not include the right to a psychiatrist discuss this issue with Smith prior to reading the document of his choice. Id. at 83 (“This is not to say, of course, that the into the record. Thus, counsel are not to be deemed deficient indigent defendant has a constitutional right to choose a because they followed Smith’s instructions. See Coleman v. psychiatrist of his personal liking or to receive funds to hire Mitchell, 244 F.3d 533, 545-46 (6th Cir. 2001) (“An his own.”). attorney’s conduct is not deficient simply for following his client’s instructions.”). Again, there is no danger of prejudice This Court has interpreted Ake as allowing psychiatric given the overwhelming evidence in this case. assistance during the sentencing phase if 1) the defendant’s sanity was a significant factor at trial, or 2) the state presents C. Ake Violations at sentencing psychiatric evidence of future dangerousness. Mason, 320 F.3d at 615-16; Thompson, 315 F.3d at 588-89; Smith argues that the trial court’s refusal to provide him Skaggs v. Parker, 235 F.3d 261, 272 (6th Cir. 2000); United with independent expert assistance during mitigation violated States v. Osaba, 213 F.3d 913, 917 (6th Cir. 2000); Ake v. Oklahoma, 470 U.S. 68 (1985), and that trial counsel’s Kordenbrock v. Scroggy, 919 F.2d 1091, 1120 (6th Cir. 1990) failure to request that an expert be provided violated (en banc opinion of Kennedy, J., with five Judges concurring Strickland. and one Judge concurring in the result). In Ake, the Supreme Court held that “when a defendant has Smith’s claim fails because Smith’s sanity was not a made a preliminary showing that his sanity at the time of the significant issue during trial principally because Smith offense is likely to be a significant factor at trial, the withdrew his insanity defense. Smith initially raised an Constitution requires that a State provide access to a insanity defense and, as a result, the trial court ordered three psychiatrist’s assistance on this issue, if the defendant cannot psychiatric evaluations prior to trial. Each expert uniformly otherwise afford one.” Ake, 470 U.S. at 74; id. at 83 (“We concluded that Smith did not suffer from any mental illness. therefore hold that when a defendant demonstrates to the trial Smith then withdrew his insanity defense. Thus, he does not judge that his sanity at the time of the offense is to be a meet the first test under Skaggs. Smith also does not argue significant factor at trial, the State must, at a minimum, assure that the prosecution presented evidence of future the defendant access to a competent psychiatrist who will dangerousness. He therefore did not have a right to any conduct an appropriate examination and assist in evaluation, psychiatric assistance at sentencing. Mason, 320 F.3d at 616 preparation, and presentation of the defense.”). The Ake (holding that the petitioner did not have a clearly established Court also stated that a similar conclusion was required “in right to any psychiatric assistance at sentencing because the the context of a capital sentencing proceeding, when the state State of Ohio did not present any psychiatric evidence of the presents psychiatric evidence of the defendant’s future defendant’s future dangerousness). dangerousness.” Id. at 83. At the same time, the Ake majority emphasized that its ruling was limited to cases in

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Even so, the trial court appointed Schmidtgoessling during Smith’s ineffective assistance of counsel claim must be the mitigation phase. Smith complains that he was entitled to rejected because, as he himself admits in his brief, his an independent psychiatrist, rather than a “friend of the court” attorneys requested an independent psychiatrist for the appointment. Ake does not entitle him to the psychiatrist of mitigation phase, but the trial court denied the motion. his choosing, only a competent psychiatrist. Ake, 470 U.S. at “Months prior to trial, the trial court denied a defense request 83; Mason, 320 F.3d at 616; Thompson, 315 F.3d at 588.10 for an independent mental health professional at the penalty phase.” Brief at 53. Thus, Smith’s trial counsel cannot be ineffective for failing to request an independent psychiatrist. 10 W e recognize that a panel of this Court recently held that “an Furthermore, “[w]e have never found counsel to be indigent criminal defendant’s constitutional right to psychiatric assistance ineffective solely because the expert used was on the State in preparing an insanity defense is not satisfied by court appointment of payroll.” Martin v. Mitchell, 280 F.3d 594, 614 (6th Cir.), a ‘neutral’ psychiatrist–i.e., one whose report is available to both the cert. denied, 123 S. Ct. 515 (2002). defense and the prosecution.” Powell v. Collins, 328 F.3d 268 , 284 (6th Cir. 2003). Ho wever, this “holding” is contrary to Ake and our own precedent. See Ake, 470 U .S. at 83 (“That is not to say, of course, that the Smith also argues that the trial court erred in denying him indigent defendant has a constitutional right to choo se a psychiatrist of his a drug and alcohol expert at the culpability phase. This personal liking or to receive funds to hire his own. Our concern is that the argument must likewise be rejected. Dr. Schmidtgoessling indigent defendant have access to a competent psychiatrist for the purpo se testified to Smith’s long history of substance abuse and its we have disc ussed . . . . ”); Thompson, 315 F.3d at 588. effects on him. Dr. Schmidtgoessling’s testimony was Furthermore, the panel’s “holding” ap pears to be dicta, because it sufficient for the Ohio Supreme Court to conclude that does not appear that the Powell petitioner’s sanity was actually at issue Smith’s drug and alcohol abuse constituted a mitigation during trial. Rather, it appears that only Po well’s competency to stand factor. See State v. Smith, 574 N.E.2d at 520. trial and his mental condition were at issue. See Powell, 328 F.3d at 275 (“Defense counsel then filed a sugge stion of incom peten cy.”); id. For all the reasons discussed in the preceding section, (“Finally, [Dr. Schmidtgoessling] testified that, although Petitioner has a mild mental defect, his condition did not meet the legal definition of Smith has not shown that he was prejudiced by counsel’s use insanity because that defect is not “of sufficient severity to c ause him to of Dr. Schmidtgoessling rather than some other hypothetical be incapable of knowing right from wrong or to restrain himself from expert. Trial counsel is frequently faulted for failing to obtain doing a certain act.”); id. (“The trial judge again denied the motion and the “right” expert. Unless habeas counsel can locate and found Petitioner co mpe tent to stand trial.”); id. at 286 (“Dr. Tanley’s produce this mythic expert, there can be no cause or after-the-fact post-conviction testimony does nothing to change the harmlessness of the trial court’s error because the fact that one has prejudice. Such is the case here. As Dr. Schmidtgoessling difficulty conforming his conduct to the requirements of the law ‘is not stated, Smith has a “personality disorder,” most certainly enough to prove insanity;’ one must demonstrate the lack of capacity to caused by his unfortunate upbringing. But there is no proof do so .”). that he has organic brain damage or any other diagnosed In any event, although relevant here (because this case is also pre- AED PA), the Powell panel’s “holding” is of limited precedential value because the habeas petition in that case was filed prior to the A ED PA . we join those circuits that have held that an indigent criminal defendant’s Under the AEDPA, the federal constitutional righ t must have be en clea rly constitutional right to psychiatric assistance in prep aring an insanity established at the time of the state court decision. As the panel’s opinion defense is not satisfied by court appointment of a “neutral” psychiatrist[.]” acknowledges, Ake did no t hold that due process requires the State to (Em phasis added.)). S tate courts obviously cannot, therefore, violate the provide an independent psychiatrist, mere ly a competent one. T he pa nel’s AEDPA by holding that Ake merely requires a competent psychiatrist, and “holding” is an extension of Ake. See Powell, 328 F.3d at 284 (“T oda y, not an indep endent one.

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mental disease or defect. Indeed, at pretrial, three mental reference here. See Smith v. Anderson, 104 F. Supp.2d at health experts failed to detect any indicators of possible 839-40. organic brain damage. At post-conviction, three mental health experts, hand-picked by habeas counsel, failed to come E. Consideration of Nonstatutory Aggravating up with a diagnosis of organic brain damage. It is therefore Circumstances not possible to fault trial counsel for accepting the conclusion of three court-appointed mental health experts, and Smith argues that the trial court erred by including strategically deciding to rely on Dr. Schmidtgoessling to nonstatutory aggravating factors in their sentencing decisions. present an exhaustive presentation of the evidence she did Specifically, Smith contends that the trial court used the have after an extensive review of numerous records. In short, nature and circumstances of the offense as a nonstatutory Smith has not demonstrated that any of the alleged failings by aggravating circumstance although the Ohio statute requires trial counsel prejudiced his right to a fundamentally fair the nature and circumstances be considered as mitigating mitigation proceeding. Indeed, as every court that has factors. See Ohio Rev. Code § 2929.04(B). As the Ohio reviewed the issue has determined, although there was Supreme Court concluded: certainly abundant mitigation evidence presented, it could not outweigh the aggravating circumstances found in this brutal Smith’s argument lacks merit because the panel’s crime. opinion listed only the nature and circumstances of the offense as a possible, but not relevant, mitigating factor. We now turn to the remainder of Smith’s arguments. Their opinion did not list any nonstatutory aggravating Respondent argues that many of them have been procedurally circumstances. Their reference to the nature and defaulted. Because all are without merit, we will briefly circumstances of the offense was proper, since “[u]nder dispose of them on those grounds, assuming without R.C. 2929.03(F), a trial court or three-judge panel may deciding, solely for purposes of expediting somewhat the rely upon and cite the nature and circumstances of the analysis, that they have not been procedurally defaulted. offense as reasons supporting its finding that the aggravating circumstances were sufficient to outweigh D. Ineffective Assistance of Appellate Counsel the mitigating factors.” State v. Stumpf, (1987) . . . 512 N.E.2d 598, paragraph one of the syllabus. Smith maintains that he received ineffective assistance of appellate counsel. He alleges that Supreme Court counsel State v. Smith, 574 N.E.2d at 518. was ineffective for filing the wrong pleading, failing to consult with him regarding his case prior to the filing of his Upon review, we agree with the district court that the Ohio appellate brief, and failing to raise meritorious issues. Supreme Court “reasonably and correctly determined that the trial court followed the dictates of state law in performing its This claim is without merit. Smith demonstrated absolutely penalty-phase deliberations at trial.” Smith v. Anderson, 104 no prejudice from counsel’s misnaming of a pleading in the F.Supp.2d at 820. The states have wide latitude to structure Supreme Court, or its alleged failure to consult with him. As sentencing procedures. See Boyde v. California, 494 U.S. to counsel’s purported failure to raise meritorious issues, we 370, 376 (1990). Thus, as the district court held, to the extent agree with the district court’s analysis and incorporate it by that Smith states a constitutional claim cognizable on habeas,

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it is foreclosed by well established Supreme Court precedent. misconduct during the mitigation phase, including improper See Smith v. Anderson, 104 F. Supp.2d at 820. introduction of lack of remorse, insanity standard, and improper remarks, and 4) cumulative effect of prosecutorial Even if the Ohio Supreme Court’s analysis of Ohio law was misconduct. incorrect there is no constitutional violation. The United States Supreme Court has held that once a defendant is found In Darden v. Wainwright, 477 U.S. 168, 181 (1986), the eligible for death based on a constitutionally sufficient Supreme Court noted that on habeas review, “the relevant narrowing circumstance, the sentencer’s discretion is virtually question is whether the prosecutor’s comments ‘so infected unlimited. See Zant v. Stephens, 462 U.S. 862, 878-79 the trial with unfairness as to make the conviction a denial of (1983). Furthermore, the Supreme Court has also held that due process.’” In addition this Court has stated that “[w]hen consideration of a non-statutory aggravating circumstance, a petitioner makes a claim of prosecutorial misconduct, ‘the even if contrary to state law, does not violate the Constitution. touchstone of due process analysis . . . is the fairness of the Barclay v. Florida, 463 U.S. 939 (1983). This claim is trial, not the culpability of the prosecutor.” Hutchison, 303 without merit. F.3d at 750 (internal quotation omitted). In other words, habeas relief is warranted if the prosecutor’s conduct was “‘so F. Imposition of Multiple Death Sentences egregious so as to render the entire trial fundamentally unfair.” Id. (internal quotation omitted). Smith contends that he has two aggravated murder convictions and two death sentences for a single homicide, in 1. Racism Pervading the Charging Decision violation of double jeopardy. The trial court’s entry of sentence imposes the death penalty as to Count 1 and as to Smith, who is African-American, argues that the ad hoc Count 2, and further provides that “[t]he sentences for Counts policies adopted by the Hamilton County Prosecutor’s Office 1 and 2 will run concurrent." Among other guarantees, the reflect a racial bias in charging and prosecuting capital Double Jeopardy Clause seeks to protect against multiple offenses. According to Smith, based upon the 1980 census punishments for the same offense imposed in a single data prepared by the U.S. Bureau of Census, the population of proceeding, see North Carolina v. Pearce, 395 U.S. 711, 717 Hamilton County was nineteen percent African-American in (1969); Jones v. Thomas, 491 U.S. 376, 386-87 (1989) (same; 1980. Further, since Ohio’s current death penalty law became citing Pearce). Even if there were error here, it cannot be effective on October 29, 1981, roughly 62% of the death said that the error a “substantial and injurious effect” resulting sentences in Hamilton County have been imposed upon in “actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619, African-Americans even though they consist of only 20% of 637 (1993); Lorraine, 291 F.3d at 444 (and cases cited the county’s population. Smith contends that because the therein). “[T]he fact is that Smith will not be executed twice administration of capital punishment in Ohio is infected with for a single murder.” Warden’s Br. at 68-69. racism, Ohio’s administration of capital punishment, as applied to him, violates the Eighth and Fourteenth G. Prosecutorial Misconduct Amendments. Smith presents four categories of prosecutorial misconduct: The thrust of Smith’s argument is that the death penalty is 1) racism pervading the charging decision, 2) prosecutorial disproportionately applied to blacks, an argument we rejected misconduct during the culpability phase, 3) prosecutorial in McQueen v. Scroggy, 99 F.3d 1302, 1333 (6th Cir. 1996)

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(holding that “the evidence offered by McQueen amounts to a prosecutor to rebut a study that analyzes the past conduct of the same kind of statistical studies that the Supreme Court scores of prosecutors is quite different from requiring a found insufficient in McClesky v. Kemp, 481 U.S. 279, 297 prosecutor to rebut a contemporaneous challenge to his own (1987)). Moreover, in Coleman v. Mitchell, 268 F.3d 417, acts.” McClesky, 481 U.S. at 296 n.17. Smith has not met his 441-42 (6th Cir. 2001), we rejected a challenge to Ohio’s burden of establishing a prima facie case of unconstitutional capital sentencing based on statistics similar to those Smith conduct in his case. See id. at n.18. Indeed, the only presents. In Coleman, the petitioner relied on a study finding evidence he provides is Ney’s inability to remember his case a discrepancy between the Ohio representation in the Ohio at all. This is not evidence of discriminatory intent. population generally (9%), and on death row (49%). We held that “[a]lthough the racial imbalance in the State of Ohio’s 2. Culpability Phase capital sentencing system is glaringly extreme, it is no more so than the statistical disparities considered and rejected by Smith contends that during the guilt phase, the prosecutor the Supreme Court in McClesky as insufficient to introduced victim-impact evidence, engaged in improper ‘demonstrate a constitutionally significant risk of racial bias argument, failed to disclose favorable impeachment evidence, affecting the . . . capital sentencing process.’” Coleman, 268 and failed to disclose that a police officer saw a blue car with F.3d at 441-42 (quoting McClesky, 481 U.S. at 313). the back window missing.

Smith also argues prosecutorial intent. “[T]o prevail under a. Victim-Impact and Improper Argument the Equal Protection Clause, [a defendant] must prove that the decisionmakers in his case acted with discriminatory During his opening statement, the prosecutor introduced purpose.” McClesky, 481 U.S. at 292. The district court testimony regarding the size of the victim’s family. The permitted discovery on this issue. In his deposition, the victim’s daughter also testified to the extent of the victim’s former Hamilton County Prosecutor, Judge Ney, stated that remaining family members. We refuse to hold that these two he met with supervisors in making the capital indictments and comments, made to a three-judge panel, so infected the trial that the voting group consisted of six to eight persons. as to render it fundamentally unfair. However, his former-first assistant indicated in a sworn statement that only Ney and himself would make the decision. Smith further objects to the prosecutor’s comment Smith also points out that the Hamilton County Prosecutor’s describing the crime as “cold and calculating,” his statement office has no written policies or procedures regarding the that Smith robbed the victim while blood spurted out her indictment of death cases. Regarding Smith’s case in neck, and his statement that Smith got up the next morning particular, they had “no independent recollection of the and celebrated. We believe that these statements are defendant, the facts or anything surrounding this case.” Ney reasonable inferences drawn from the evidence presented at also stated that no records would be kept of the decision to trial. See Byrd v. Collins, 209 F.3d 486, 536 (6th Cir. 2000). indict. Thus, according to Smith, Ney could not provide a In any event, these statements, like the preceding ones, were race-neutral explanation. not so egregious as to render the trial fundamentally unfair. See id. Smith’s claim must fail. Ney was not obliged to provide a race- neutral explanation. Further, his inability to provide an explanation supports the logic in McClesky that “[r]equiring

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b. Brady Claim Smith v. Anderson, 104 F. Supp.2d at 824-25. This claim is without merit.11 Smith contends that the prosecutor failed to disclose favorable impeachment evidence as required by Brady v. 3. Mitigation Phase Maryland, 373 U.S. 83 (1963). Specifically, Smith claims that the prosecutor failed to reveal that Brenda Henson, who Smith objects to the prosecutor’s statements during tended bar at the Race Inn, testified that she knew Smith as a mitigation that Smith lacked remorse and that he could not customer at the bar. Smith also claims that the prosecutor meet the insanity standard and therefore no mitigating factors failed to disclose an eyewitness Jane Echols, who had been were present. Finally, Smith complains that the prosecutor with Mary Bradford at the bar. Echols purportedly could not urged the sentencer to consider non-statutory aggravating identify Smith as the man who left the bar with the victim. circumstances. Again, these statements were made to a three- Smith also asserts that the prosecutor failed to disclose that a judge panel, who are presumed to base their judgment on police officer saw a blue car with the back window missing, relevant evidence. This argument lacks serious merit. which was not Smith’s car, outside the victim’s residence. 4. Cumulative Effect Materiality is an essential element of a Brady claim. Brady, 373 U.S. at 87. We agree with the district court that: Smith claims that the cumulative effect of prosecutorial misconduct rendered his trial fundamentally unfair. Because Without deciding whether the State actually withheld we find no prosecutorial misconduct as to any of the the evidence, this Court finds that the witness statements individual claims, there can be no cumulative effect of alleged to have been withheld by the State are neither prosecutorial misconduct. exculpatory nor material. . . . First, with respect to the identification of Petitioner by Ms. Henson, the fact that H. Jury Waiver she identified Petitioner as a patron of the bar, as well as a possible perfume salesman are neither contradictory to Smith waived his right to a jury trial, subsequently her testimony, nor material. There were no withdrew the waiver, entered another waiver of a jury trial, inconsistencies in the identification of Petitioner and no and finally requested to be tried by a three-judge panel showing has been made by Petitioner that the standards instead. Smith argues that the district court erred in for materiality have been met. Second, the testimony of determining that his jury waiver was proper. His claim is Janice Echols was not material, as she could neither three-faceted. First, he claims that his waiver is not valid include nor exclude Petitioner as the person who left the because his attorney and the court represented that he could bar with the victim. In sum, the allegedly withheld not withdraw the waiver. Second, Smith contends that the “exculpatory” evidence is simply not compelling. court did not adequately inform him of the consequences. Third, Smith asserts that his attorneys did not adequately research potential consequences of waiver.

11 Although the district court did not discuss the car, Smith offers no argum ent as to why this evidenc e is material.

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As the district court held, this claim is utterly without merit. against mitigating factors. See Buell v. Mitchell, 274 F.3d The district court thoroughly and exhaustively addressed the 337, 367-68 (6th Cir. 2001). issue, and we incorporate by reference its holding at pages 795-96. See Smith, 104 F. Supp.2d at 795-96. See also Lott Smith argues that the Ohio death penalty statutes are v. Coyle, 261 F.3d 594,613-15 (6th Cir. 2001) (holding that unconstitutional “because they require proof of aggravating the petitioner’s waiver of right to jury trial was knowing, circumstances in the trial phase of a bifurcated proceeding.” intelligent and voluntary although the trial court conducted no We rejected this argument in Coleman, 268 F.3d at 443 independent inquiry into the extent of the alleged discussions (holding that the Ohio scheme, by requiring proof of between the petitioner and his counsel; finding no error on aggravating circumstances at the guilt, rather than penalty facts of case). phase, is consistent with Lowenfield v. Phelps, 484 U.S. 231 (1988)). See Lowenfield, 484 U.S. at 241-46; Buell, 274 F.3d I. Constitutionality of Ohio’s Death Penalty at 269-70. Smith’s next argument is that the Ohio statute is unconstitutional because it permits duplication between the Smith attacks the constitutionality of Ohio’s death penalty aggravating circumstances and an element of the underlying on various grounds. First, he alleges that the Ohio scheme is crime. This argument is also inconsistent with Lowenfield unconstitutional because “there is no legitimate, compelling and has been rejected by this Court in Buell. See Lowenfield, state interest in killing a person.” This global attack on the 484 U.S. at 246; Buell, 274 F.3d at 269-70. death penalty as a violation of the Eighth Amendment is foreclosed by Gregg v. Georgia, 428 U.S. 153, 168-87 Smith contends that the Ohio statute fails to provide for an (1976). adequate proportionality review by the appellate courts. However, comparative proportionality review is not Next, Smith claims that Ohio’s sentencing procedures are constitutionally required, see Pulley v. Harris, 465 U.S. 37, unreliable. He contends that the Ohio scheme gives the jury 50 (1984), and this argument has already been rejected by this too much discretion in determining the aggravating Court. Buell, 274 F.3d at 368-69; Byrd, 209 F.3d at 539; Coe circumstances. Specifically, he claims that the statute fails to v. Bell, 161 F.3d 320, 351-52 (6th Cir. 1998). Smith also require the state to prove the absence of mitigating factors, as alleges that the electric chair violates the Eighth Amendment. opposed to requiring the defendant to prove the existence of We rejected this argument too in Buell. See Buell, 274 F.3d mitigating circumstances by a preponderance of the evidence, at 370. and fails to define relevant terms such as “weighing” and “mitigating.” The Constitution contains no such Finally, as a general matter, this Court has upheld the requirements. See Buchanan v. Angelone, 522 U.S. 269, 275- constitutionality of the Ohio death penalty scheme. See Buell, 76 (1998) (holding that the Eighth Amendment does not 274 F.3d at 367-70; Byrd, 209 F.3d at 539. require the jury be instructed on the concept of mitigating evidence or on particular statutory mitigating factors, and that J. Grand Jury Discrimination states are free to structure the jury’s consideration of mitigation so long as it does not preclude the jury from giving Smith alleged that his constitutional rights were violated effect to it). Furthermore, this Court has upheld Ohio’s because African-Americans were under represented in the statutory scheme for weighing aggravating circumstances pool from which his grand jury was selected. The district court held that this claim was procedurally defaulted, because

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Smith failed to present this claim in any state court _____________________________________________ proceeding. The district court ruled in that alternative that Smith had failed to substantiate his claim under the test set CONCURRING IN PART, DISSENTING IN PART forth in Jefferson v. Morgan, 962 F.2d 1185 (6th Cir. 1992). _____________________________________________ See Smith, 104 F. Supp.2d at 849. R. GUY COLE, JR., Circuit Judge, concurring in part and Smith did allege in a motion to alter or amend judgment dissenting in part. I concur only in the result reached by the that the grand jury foreman in his case was selected in a majority denying each of the asserted grounds for habeas discriminatory fashion. In support, he offered the results of relief, with the exception of Smith’s claim that the trial a statistical study, which he claimed demonstrated racial court’s refusal to provide him with a defense psychiatric discrimination in the selection of grand jury forepersons in expert, as opposed to a neutral psychiatric expert, violated Hamilton County. He also alleged that he had actually raised Ake v. Oklahoma, 470 U.S. 68 (1985). Because I believe that his twenty-fourth ground in his State post-conviction petition the trial court failed to provide Smith with a mental health as his thirtieth claim. The district court rejected Smith’s new expert for the defense as required by Ake, and as interpreted allegation, holding that it was never presented in state court, by this Court in Powell v. Collins, 328 F.3d 268 (6th Cir. and was procedurally defaulted. The court also rejected the 2003), I respectfully dissent on this issue. claim on the merits. We agree with the district court that this claim is procedurally defaulted under Ohio’s doctrine of res I believe that there are three critical considerations in judicata as stated by the court at 104 F. Supp.2d at 849-50, assessing Smith’s argument that he should be granted a writ and its amended order denying Smith’s motion to alter or of habeas corpus because the state trial court violated Ake, by amend judgment, dated July 27, 2000. Furthermore, we will failing to provide him with a psychiatrist to function as a not overlook the default here, because as the district court defense expert. First, we must assess whether Smith was held, the State has never been afforded an opportunity to rebut entitled to expert psychiatric assistance under Ake, given that the claim and belated proof. he withdrew his insanity plea prior to trial. Second, if Ake guarantees Smith expert psychiatric assistance, we must IV. Conclusion consider whether his right to psychiatric assistance is satisfied by the appointment of a neutral “friend-of-the-court” Having completed our responsibility “to ensure that psychiatrist. Third, if the neutral psychiatrist does not satisfy Petitioner’s conviction and death sentence comport with the Ake’s command, we must determine whether the failure to requirements of our Constitution,” Byrd, 209 F.3d at 540, we provide Smith with a defense expert psychiatrist was harmless hereby AFFIRM the judgment of the district court denying error. the petition for writ of habeas corpus. I. In Ake, the Supreme Court held that “when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a state provide access to a psychiatrist’s assistance on this issue, if the defendant cannot

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otherwise afford one.” 470 U.S. at 74. The Court went on to appointment of a psychiatrist when the defendant had not state that “when a defendant demonstrates to the trial judge pleaded insanity, but where his mental retardation was his that his sanity at the time of the offense is to be a significant strongest argument in mitigation for sentencing purposes. factor at trial, the State must, at a minimum, assure the Starr v. Lockhart, 23 F.3d 1280, 1288 (8th Cir. 1994). defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, Many courts have interpreted Ake’s command – to provide preparation, and presentation of the defense.” Id. at 83. expert psychiatric assistance when a defendant’s sanity is a significant factor – to mean more than strictly whether or not Prior to our opinion in Powell, we noted that Ake requires the defendant has pleaded not guilty by reason of insanity. that a defendant be provided with psychiatric assistance Rather, Ake has regularly been interpreted to require expert during the sentencing phase if the defendant’s sanity is a psychiatric assistance any time the defendant’s “mental significant factor at trial, or if the state presents psychiatric condition” is shown to be a significant factor at trial. In other evidence of future dangerousness. Mason v. Mitchell, 320 words, the Supreme Court’s use of the term “sanity” in Ake F.3d 604, 615-16 (6th Cir. 2003); Skaggs v. Parker, 235 F.3d was not restricted to occasions when defendants have chosen 261, 272 (6th Cir. 2000); United States v. Osaba, 213 F.3d to plead insanity, but rather, encompassed all significant 913, 917 (6th Cir. 2000). We had also recognized, however, issues concerning a defendant’s mental condition. Indeed, in the possibility that Ake suggests that a defendant is entitled to Ake itself, the Supreme Court stated that, “when the State has a competent defense expert. Skaggs, 235 F.3d at 272-73. made the defendant’s mental condition relevant to his criminal culpability and to the punishment he might suffer, We must first address whether Ake’s protections apply to the assistance of a psychiatrist may well be crucial to the Smith, given that he withdrew his insanity plea prior to trial. defendant’s ability to marshal his defense.” 470 U.S. at 80 I believe that Ake still applies. A number of Circuits, (emphasis added). Many other courts have recognized this including our own, have interpreted Ake to require expert reading of Ake as well. See Pizzuto v. Arave, 280 F.3d 949, assistance beyond psychiatric assistance in conjunction with 963 (9th Cir. 2002) (noting that in Ake, the Supreme Court an insanity plea. In Terry v. Rees, 985 F.2d 283 (6th Cir. recognized an indigent defendant’s right to an independent 1993), this Court noted that Ake stands for the proposition expert when the state makes mental condition relevant); that criminal trials are fundamentally unfair “if a state Walker v. Attorney Gen. of Okla., 167 F.3d 1339, 1348 (10th proceeds against an indigent defendant without making Cir. 1999) (stating that the Ake inquiry is whether evidence is certain that he has access to the raw materials integral to presented to the trial court suggesting that the defendant’s building a defense.” Terry, 985 F.2d at 284. Accordingly, we mental condition is likely to be a significant factor); Chaney held that the trial court violated Ake in denying the v. Stewart, 156 F.3d 921, 925 (9th Cir. 1999) (“Ake held that defendant’s request for an independent pathologist in order to a state must provide indigent criminal defendants with expert challenge the government’s position as to the victim’s cause psychiatric assistance if the defendant’s mental condition is of death. Id. Similarly, the Eighth Circuit has held that the a significant factor at trial.”); United States v. Roman, 121 rule of Ake applies when the expert in question is not a F.3d 136, 144 (3d Cir. 1997) (“In Ake, the Supreme Court psychiatrist, finding “no principled way to distinguish held that, when a capital defendant demonstrates that his between psychiatric and nonpsychiatric experts.” Little v. mental condition is a significant factor at his sentencing Armontrout, 835 F.2d 1240, 1243 (8th Cir. 1987) (en banc). phase, he is ‘entitled to the assistance of a psychiatrist.’”). The Eighth Circuit has also held that Ake required the

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Thus, it was apparent, even before our decision in Powell, first place is denied the defendant when the services of the that Ake’s protection extended beyond expert psychiatric doctor must be shared with the prosecution.”) In Powell, we assistance for insanity pleas. However, if any doubt existed explicitly adopted this position. 328 F.3d at 284. Thus, prior to Powell, such confusion has now been addressed.1 As because Smith was only provided with a court-appointed the majority notes, our decision in Powell gives no indication neutral expert, Powell requires that we find the state court to that the petitioner’s sanity was actually at issue during the have violated Ake in the present case as well. trial. Rather, it appears that the petitioner only raised issues concerning his competence to stand trial and his “mental I am not persuaded by the argument that we may ignore condition.” Nevertheless, we held that the failure to provide Powell because its holding is contrary to Ake and Sixth the petitioner with a psychiatric expert to aid in his defense Circuit precedent. Ake did, indeed, state that an indigent was a violation of Ake. Powell, 328 F.3d at 283-84. defendant does not possess a constitutional right to “choose Accordingly, it is clear that Smith did not remove himself a psychiatrist of his personal liking.” 470 U.S. at 83. from the scope of Ake’s protections by withdrawing his However, I do not read this passage from Ake to imply that a insanity plea. Because Smith’s mental condition was indeed defendant is not entitled to a “defense expert,” as opposed to a significant factor in the state court proceedings, he was a neutral expert. This passage from Ake, I believe, is properly entitled to expert psychiatric assistance. read to state that, of the experts available to testify as a defense expert, a defendant is not free to choose the expert “of II. his personal liking,” just as an indigent defendant is not entitled to the services of the defense attorney of his choice. Because I believe that Smith’s mental condition entitled In fact, the Ake Court itself stated that the right to psychiatric him to expert psychiatric assistance under Ake, the next assistance must assure the defendant “access to a competent question is whether Smith’s right to psychiatric assistance psychiatrist who will . . . assist in evaluation, preparation, and was satisfied by the appointment of a neutral psychiatrist. presentation of the defense.” Id. I do not believe that the role Prior to Powell, a number of our sister circuits had held that of a court-appointed neutral psychiatrist properly meets this court appointment of a neutral psychiatrist does not satisfy criterion. While Ake does not require that a defendant have Ake. See Starr, 23 F.3d at 1289-91; Smith v. McCormick, access to the psychiatrist of his choice, it does require access 914 F.2d 1153, 1157 (9th Cir. 1990) (holding that the right to to a psychiatrist who will assist in the defense. A court- psychiatric assistance recognized by Ake “does not mean the appointed neutral expert is not a defense expert. right to place the report of a ‘neutral’ psychiatrist before the court; rather it means the right to use the services of a Thus, I believe that the holding of Powell is not in conflict psychiatrist in whatever capacity defense counsel deems with Ake, nor is it in conflict with any of the cases in our appropriate”); United States v. Sloan, 776 F.2d 926, 929 (10th circuit that cite Ake for the proposition that a defendant is not Cir. 1985) (“The essential benefit of having an expert in the entitled to the assistance of the psychiatrist of his choice. Because I would find that the denial of a defense psychiatric expert violated Smith’s rights under Ake and Powell, I now 1 turn to the question of whether this was harmless error. It is noteworthy that the district court’s tho rough and articulate opinion in this case was issued before this Court issued its decision in Powell. Thus, the district co urt did not have the b enefit of considering the precedential value of Powell when ruling on Smith’s petition.

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III. doubt” about the harmlessness of the error, O’Neal v. McAninch, 513 U.S. 432, 437 (1995). The defense In Powell, we found that the trial court’s denial of an Ake appropriately concluded that Smith’s best argument at expert was not harmless error because “Dr. Schmidtgoessling mitigation would be to focus on his mental condition. was not equipped to conduct the appropriate examination However, without the aid of an expert to testify on Smith’s required for her to set forth all of the facts or information the behalf, the defense was unable to properly put this argument jury should have considered at mitigation.” 328 F.3d at 287. before the sentencing court. Accordingly, I would grant Similarly, in the present case, Dr. Schmidtgoessling Smith’s request for a writ of habeas corpus based on the acknowledged that she functioned in the case as a friend of state’s failure to provide him with a defense psychiatric expert the court, rather than as an advocate for Smith. She testified in mitigation. that, as a member of the defense side, in mitigation, her role would be to look for factors to try to explain Smith’s behavior and save his life. In contrast, however, as a friend of the court, her role was simply “to perform psychological or psychiatric evaluations that the attorneys would then decide how does that fit into their defense strategy. We don’t start out looking for things that are mitigating . . . .” The majority opinion correctly notes that Dr. Schmidtgoessling’s testimony was presented at mitigation; it, however, fails to take note of the legal consequence of Dr. Schmidtgloessing’s appearance as a neutral expert, rather than a defense expert. See ante, at n.9 From her own admission it is clear that Dr. Schmidtgloessing saw her role as a “friend of the court.” This, I contend, fails to meet the requirement established in Ake. We found in Powell that the testimony of a defense expert may have provided facts and information to consider at mitigation that may have led to a different sentence for the defendant. Id. The facts of this case lead me to the same conclusion. Smith endured an exceedingly difficult childhood. He spent time living with abusive foster parents, was diagnosed with diffuse cerebral dysfunction, and spent time in a juvenile psychiatric facility where, among other things, he received electric shock therapy. Given this history, the lack of expert assistance to which Smith was entitled under Ake “had such a substantial and injurious effect or influence in determining” the sentencing decision, Brecht v. Abrahamson, 507 U.S. 619, 637 (1993), that I have “grave