       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2     Hamblin v. Mitchell                          No. 00-3663
    ELECTRONIC CITATION: 2003 FED App. 0457P (6th Cir.)
                File Name: 03a0457p.06                    Akron, Ohio, for Appellant.    Matthew C. Hellman,
                                                          ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL
                                                          CRIMES SECTION, Columbus, Ohio, Michael L. Collyer,
UNITED STATES COURT OF APPEALS                            OFFICE OF THE ATTORNEY GENERAL OF OHIO,
                                                          Cleveland, Ohio, for Appellee.
              FOR THE SIXTH CIRCUIT
                _________________                           MERRITT, J., delivered the opinion of the court, in which
                                                          GILMAN, J., joined. BATCHELDER, J. (pp. 23-24),
 DAVID HAMBLIN ,                  X                       delivered a separate dissenting opinion.
          Petitioner-Appellant, -
                                   -                                          _________________
                                   -  No. 00-3663
            v.                     -                                              OPINION
                                    >                                         _________________
                                   ,
 BETTY MITCHELL , Warden,          -                        MERRITT, Circuit Judge. In this death penalty case from
         Respondent-Appellee. -                           Ohio tried in the state criminal court in Cleveland, the
                                  N                       primary issue is whether counsel for the defendant provided
      Appeal from the United States District Court        an adequate defense under the Sixth Amendment as
    for the Northern District of Ohio at Youngstown.      incorporated in the Due Process Clause. Fred Jurek was
   No. 95-02046—Peter C. Economus, District Judge.        counsel for the defendant, Hamblin, the petitioner in this
                                                          habeas corpus case. Jurek had no experience trying capital
                Argued: March 20, 2002                    cases, and he was later disbarred from the practice of law in
                                                          Ohio. After the defendant was found guilty of murder by a
        Decided and Filed: December 29, 2003              jury at the guilt phase of the case, Jurek did not prepare for
                                                          the penalty phase of the bifurcated trial. He did not try to find
  Before: MERRITT, BATCHELDER, and GILMAN,                out any family history or any facts concerning defendant’s
                 Circuit Judges.                          psychological background and mental illness, nor did counsel
                                                          seek any advice or expert consultation for the penalty phase
                  _________________                       of the case. Despite a large body of mitigating evidence,
                                                          counsel did nothing to discover what was available or
                       COUNSEL                            introduce it in evidence. We will first set out the standards
                                                          governing the assistance of defense counsel in capital cases at
ARGUED: Linda E. Prucha, OHIO PUBLIC DEFENDER’S
OFFICE, Columbus, Ohio, for Appellant. Matthew C.
Hellman, ATTORNEY GENERAL’S OFFICE OF OHIO,
CAPITAL CRIMES SECTION, Columbus, Ohio, for
Appellee. ON BRIEF: Linda E. Prucha, OHIO PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, George C. Pappas,

                            1
No. 00-3663                              Hamblin v. Mitchell          3    4      Hamblin v. Mitchell                          No. 00-3663

the sentencing phase of the case and then apply those                         In the most recent case on ineffective assistance, Wiggins
standards to the facts of this case.1                                      v. Smith, 123 S. Ct. 2527, decided June 26, 2003, the Court
                                                                           held by a 7-2 vote that counsel’s investigation and
                                   I.                                      presentation “fell short of the standards for capital defense
                                                                           work articulated by the American Bar Association . . .
   Ineffective assistance of counsel in capital cases has been             standards to which we have long referred as ‘guides to
a persistent problem in the United States. See James S.                    determining what is reasonable.’” 123 S. Ct. at 2536-37. In
Liebman, The Overproduction of Death, 100 COLUM. L.REV .                   its discussion of the 1989 ABA Guidelines for counsel in
2030, 2102-10 (2000). It was only 70 years ago in the                      capital cases, the Court held that the Guidelines set the
notorious but seminal Scottsboro Boys case, Powell v.                      applicable standards of performance for counsel:
Alabama, 287 U.S. 45 (1932), that the Supreme Court finally
decided that the Due Process Clause of the Fourteenth                          [I]nvestigations into mitigating evidence “should
Amendment requires the appointment of competent counsel                        comprise efforts to discover all reasonably available
capable of “the giving of effective aid in the preparation and                 mitigating evidence and evidence to rebut any
trial” because a defendant facing capital punishment “requires                 aggravating evidence that may be introduced by the
the guiding hand of counsel at every step in the proceeding                    prosecutor.” ABA Guidelines for the Appointment and
against him.” 287 U.S. at 69-71.                                               Performance of Counsel in Death Penalty Cases
                                                                               11.4.1(C), p. 93 (1989).... Despite these well-defined
   Not until 50 years later in Strickland v. Washington, 466                   norms, however, counsel abandoned their investigation
U.S. 668 (1984), did the court begin to define specifically                    of petitioner’s background after having acquired only
what the “effective assistance of counsel” means. There the                    rudimentary knowledge of his history from a narrow set
Court said that counsel in such cases must act with                            of sources.
“reasonableness under prevailing professional norms” as
“guided” by “American Bar Association standards and the                    Id. at 2537 (emphasis in original). The Court then also
like.” This standard includes counsel’s “duty to make                      adopted ABA guideline 11.8.6, which it described as stating
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” But the                     that among the topics counsel should consider presenting
Court went on to say that under this standard “judicial                        are medical history, educational history, employment and
scrutiny of counsel’s performance must be highly                               training history, family and social history, prior adult and
deferential,” and that the defendant must overcome “a strong                   juvenile correctional experience, and religious and
presumption” that counsel’s action is reasonable because any                   cultural influences.
“detailed guidelines . . . would encourage the proliferation of
ineffectiveness challenges.”                                               Id. (Emphasis in original.) Thus, the Wiggins case now
                                                                           stands for the proposition that the ABA standards for counsel
                                                                           in death penalty cases provide the guiding rules and standards
                                                                           to be used in defining the “prevailing professional norms” in
                                                                           ineffective assistance cases. This principle adds clarity, detail
    1
     The petition before us was filed before the effective date of AEDPA   and content to the more generalized and indefinite 20-year-
(April 24, 1996), see Lindh v. Murphy, 521 U.S. 320 (1997), and is         old language of Strickland quoted above.
governed by preexisting standards.
No. 00-3663                         Hamblin v. Mitchell       5    6       Hamblin v. Mitchell                                 No. 00-3663

   Prior to the Wiggins case, our Court in a series of cases had   standards merely represent a codification of longstanding,
dealt with the failure of counsel to investigate fully and         common-sense principles of representation understood by
present mitigating evidence at the penalty phase of the case.      diligent, competent counsel in death penalty cases. The ABA
Our analysis of counsel’s obligations matches the standards        standards are not aspirational in the sense that they represent
of the 1989 Guidelines quoted by the Supreme Court in              norms newly discovered after Strickland. They are the same
Wiggins. In Glenn v. Tate, 71 F.3d 1204, 1206-08 (6th Cir.         type of longstanding norms referred to in Strickland in 1984
1995), Judge Nelson for himself and Judge Guy (Judge Siler         as “prevailing professional norms” as “guided” by “American
dissenting) set aside the death verdict on grounds of              Bar Association standards and the like.” We see no reason to
ineffective assistance of counsel at the penalty phase. The        apply to counsel’s performance here standards different from
Court held that counsel must perform a full and complete           those adopted by the Supreme Court in Wiggins and
investigation of mitigating evidence including the defendant’s     consistently followed by our court in the past. The Court in
“history, background and organic brain damage.” 71 F.3d at         Wiggins clearly holds at 123 S. Ct. at 2535, that it is not
1207. The Court also held that this investigation should be        making “new law” on the ineffective assistance of counsel
conducted before the guilt phase of the case. It said that the     either in Wiggins or in the earlier case on which it relied for
“time consuming task of assembling mitigating witnesses            its standards, Williams v. Taylor, 529 U.S. 362 (2000).
[should not wait] until after the jury’s verdict ....” Id.
(quoting Blanco v. Singletary, 943 F.2d 1477, 1501-02 (11th          New ABA Guidelines adopted in 2003 simply explain in
Cir. 1991)). The Court faulted the lawyers because they            greater detail than the 1989 Guidelines the obligations of
“made no systematic effort to acquaint themselves with their       counsel to investigate mitigating evidence. The 2003 ABA
client’s social history” — for example, they “never spoke to       Guidelines do not depart in principle or concept from
any of his numerous brothers and sisters,” and “never              Strickland, Wiggins or our court’s previous cases concerning
examined school records” or “medical records” or “records of       counsel’s obligation to investigate mitigation circumstances.2
mental health counseling.” Id. at 1208. In a similar case,
Austin v. Bell, 126 F.3d 843, 847-48 (6th Cir. 1997), Judge
                                                                       2
Suhrheinrich, for a panel including Judges Martin and Merritt,          The 2003 A BA G uidelines at section 10.7 contain ten pages of
relied on Judge Nelson’s opinion in Glenn v. Tate to explain       discussion about counsel’s “obligation to conduct thorough and
that prevailing standards require a full and complete              independent investigations relating to the issues of both guilt and
                                                                   penalty.” The description of counsel’s obligation to investigate mitigating
investigation of mitigating evidence. Then in Coleman v.           evidence for the sentencing phase of the case is as follows (omitting
Mitchell, 268 F.3d 417, 449-52 (6th Cir. 2001), Judge Clay         quotation marks and the lengthy footnotes attached to the test):
for himself and Judge Cole (Judge Batchelder dissenting),
reviewed the holdings of Glenn and Austin and reached a                Counsel’s duty to investigate and present mitigating evidence is
similar conclusion. Like the Supreme Court in Wiggins,                 now well established. The duty to investigate exists regardless
                                                                       of the expressed desires of a client. Nor may co unsel sit idly b y,
Judge Clay explicitly relied on the 1989 ABA Guidelines.               thinking that investigation would be futile. Counsel cannot
                                                                       responsibly advise a client about the merits of different courses
   The 1989 Guidelines adopted as “prevailing norms” in                of action, the client cannot make informed decisions, and
Wiggins reinforce and support our court’s previous rulings in          counsel cannot be sure of the client’s competency to make such
Glenn, Austin and Coleman applying similar norms to cases              decisions unless counsel has first conducted a thorough
tried in the 1980's. Although the instant case was tried before        investigation with respect to both phases of the case.
the 1989 ABA edition of the standards was published, the                    Because the sentences in a capital case must consider in
No. 00-3663                               Hamblin v. Mitchell             7   8      Hamblin v. Mitchell                                 No. 00-3663



   mitigation, anything in the life of the defendant which might
                                                                                 In sum, we recognize that we must measure counsel’s
   militate against the app ropriateness of the d eath penalty for the        performance in this case against the prevailing standards at
   defendant, penalty phase preparation requires extensive and                the time of Hamblin’s trial. We cite the 1989 and 2003 ABA
   genearlly unparalleled investigation into persona l and fam ily            Guidelines simply because they are the clearest exposition of
   history. In the ca se of the client, this be gins with the moment of       counsel’s duties at the penalty phase of a capital case, duties
   conception [i.e., undertaking representation of the capital
   defendant]. Counsel needs to explore:
                                                                              that were recognized by this court as applicable to the 1982
                                                                              trial of the defendant in Glenn v. Tate, 71 F.3d 1204, 1206-08
   (1) Medical history, (including hospitalizations, mental and               (6th Cir. 1995). Since that trial took place even before the
       physical illness or injury, alcohol and drug use, pre-natal            trial in the present case, the same standards regarding
       and birth trauma, malnutrition, developmental delays, and              counsel’s duty to investigate mitigating evidence, as
       neurological damage).
                                                                              articulated in the ABA Guidelines, are relevant here.
   (2) Fam ily and social history, (including physical, sexual or
       emotional abuse; family history of mental illness, cognitive
       impairments, substance abuse, or domestic violence;
       pov erty, familial instability, neighborhood environment and
       peer influence); other traumatic events such as exposure to
       criminal violence, the loss of a loved one or a natural                    police officers or other witnesses), decisions about the need for
       disaster; experiences of racism or other social or ethnic bias;            expert evaluation (including competency, mental retardation, or
       cultural or religious influences; failures of government or                insanity), motion practice, and plea nego tiations.
       social intervention (e.g., failure to intervene or provide
       necessary services, place ment in poo r quality foster care or             ....
       juvenile detention facilities);                                                 It is necessary to locate and interview the client’s fam ily
                                                                                  members (who may suffer from some of the sa me impairm ents
   (3) Educational history (including achievement, performance,                   as the client), and virtually everyone else who knew the client
       behavior, and activities), special ed ucational needs                      and his family, including neighb ors, teachers, clergy, case
       (including cognitive limitations and learning d isabilities)               workers, doctors, co rrectional, probation or parole officers, and
       and op portunity or lack thereo f, and activities;                         others. Records — from courts, government agencies, the
                                                                                  military, employers, etc. — can conta in a wealth of mitigating
   (4) Military service, (including length and type of service,                   evidence, documenting or providing clues to childhood abuse,
       conduct, special training, combat exposure, health and                     retardation, brain damage, and/or mental illness, and
       mental health services);                                                   corroborating witnesses’ recollections. Records should be
                                                                                  requested conc erning not on ly the client, but also his parents,
   (5) Employment and training history (including skills and                      grandp arents, siblings, an d child ren. A multi-generational
       performance, and barriers to employability);                               investigation frequently discloses significant patterns of family
                                                                                  dysfunction and may help establish or strengthen a diagnosis or
   (6) Prior juven ile and adult correctional experience (including               underscore the hereditary nature of a particular impairment. The
       conduct while under supervision, in institutions of education              collection of corrob orating information from multiple sourc es —
       or training, and regarding clinical services);                             a time-consuming task — is important wherever possible to
                                                                                  ensure the reliability and thus the persuasiveness of the evidence.
       The mitigation investigation should begin as quickly as
   possible, beca use it may affect the investigation of first phase          ABA Guidelines for the Appointment and Performance of Defense
   defense (e.g., by suggesting additional areas for questioning              Counsel in Death Penalty Cases ¶ 10.7 (2003) at pp. 80-83.
No. 00-3663                         Hamblin v. Mitchell      9    10       Hamblin v. Mitchell                            No. 00-3663

                              II.                                 the stricter AEDPA standard to petitions filed after April 24,
                                                                  1996); Lindh v. Murphy, 521 U.S. 320 (1997).
                              A.
                                                                    The district court denied Hamblin’s request for a writ of
   This case begins in 1983 in Cleveland, Ohio, when              habeas corpus, for an evidentiary hearing and for discovery.
Metropolitan Park Ranger John English was investigating           On the basis of the papers before the court, it held that
alleged homosexual activity in a local park. He was shot in       counsel was not ineffective and labeled the lack of
the leg by an unknown assailant. His injuries were not life       investigation as “strategic,” finding that counsel relied on the
threatening. Just prior to the shooting, Ranger English and       now defunct “residual doubt” theory during the penalty phase.
other witnesses observed petitioner David Hamblin sitting in      The residual doubt theory seeks to convince the jury to
his car at the park. Twenty minutes after the shooting, Lillian   impose a less severe sentence by reinforcing any lingering
Merrick was found unconscious in her car in the parking lot       doubt the jury may have about the guilt of the defendant.
of a store near the park, suffering from a blow to the head       “Residual doubt” was rejected by the Ohio Supreme Court as
inflicted by a blunt object. She also sustained a wound to her    a mitigation strategy after Hamblin’s trial. State v. McGuire,
hand, described as a “defensive” wound. She had been              80 Ohio St. 3d 390, 686 N.E.2d 1112, 1123 (1997). McGuire
robbed of her purse and groceries. She died three days later      held that because the jury must find guilt at the culpability
from her injuries without regaining consciousness.                phase beyond a reasonable doubt, a “residual doubt” theory
Investigation clearly established that defendant Hamblin          makes no sense. If the jury has “residual doubt,” it must not
wounded the park ranger and killed Lillian Merrick.               convict. Therefore, residual doubt can no longer be used as
                                                                  a mitigating factor in Ohio at sentencing.
   A jury in the Common Pleas Court of Cuyahoga County
convicted Hamblin of aggravated murder, aggravated robbery,                                         B.
attempted murder and having a weapon under disability and
sentenced him to death. The conviction was affirmed by the          The record reveals that defense counsel’s representation of
Cuyahoga County Court of Appeals and the Ohio Supreme             Hamblin at the penalty stage of the case fell far short of
Court. State v. Hamblin, No. 49975, 1986 WL 11132 (Ohio           prevailing standards of effective assistance of counsel as
App. Sept. 18, 1986), aff’d, 37 Ohio St. 3d 153, 524 N.E.2d       outlined in Wiggins, our previous cases and the 1989 and
476, cert. denied, 488 U.S. 975 (1988).                           2003 ABA Guidelines.
   Hamblin filed a petition pursuant to 28 U.S.C. § 2254 in         The Cuyahoga County Court of Common Pleas appointed
November 1995 after exhausting his state post-conviction          Fred Jurek and Arthur Lambros to serve as Hamblin’s court-
proceedings. State v. Hamblin, No. 66556, 1994 WL 706137          appointed attorneys. Neither lawyer had previously tried a
(Ohio App. Dec. 15, 1994), dismissed, appeal not allowed, 72      capital case. Jurek3 admitted in his affidavit that he did
Ohio St. 3d 1528, 649 N.E.2d 837 (May 31, 1995). Hamblin
filed his petition for habeas review prior to the enactment of
the Antiterrorism and Effective Death Penalty Act, which               3
                                                                       Only Jurek filed an affidavit for the state post-conviction
permits reviewing federal courts greater latitude in examining    proceeding. Jurek was disbarred in 1989 and died in 199 9. There is no
the proceedings than is permissible under AEDPA-governed          information in the record as to why Hamblin’s other attorney, Arthur
cases. See Williams v. Taylor, 529 U.S. 362 (2000) (applying      Lamb ros, did no t submit an affidav it during the post-conviction
                                                                  proceedings. Beca use Jurek wa s the only defense lawyer to speak during
No. 00-3663                               Hamblin v. Mitchell          11     12   Hamblin v. Mitchell                         No. 00-3663

essentially nothing by way of preparation for the penalty                     and a younger sister by stealing and he first stole food as a
phase of this trial. Aff. of Fred Jurek, at ¶ 8, State v.                     very young child. He was never educated. He did not attend
Hamblin, CR-186558, Ex. B. to State Post-Conviction                           elementary school with regularity and did not receive any
Petition (Ohio App. July 31, 1989). Jurek stated in his                       education past the seventh grade. He started getting in trouble
affidavit that he did not treat Hamblin’s case any differently                with the law as a teenager, resulting in a criminal record as a
than other criminal cases he had handled and he was                           juvenile. He first left home at 13 and left permanently at 16.
“unaware” of the special preparation that was needed for the
penalty phase. Id. at ¶ 12. He stated he did not prepare for                     Hamblin first showed signs of mental disorder when he was
the penalty phase until after the guilty verdict was returned —               a teenager — probably resulting from his poor family
leaving a period of only six days (from Wednesday, April 11,                  situation and possibly from a severe blow to the head at about
until Tuesday, April 17) to prepare for the penalty phase. Id.                age 8, inflicted by his father with a dog chain, and from a
Jurek’s affidavit states that he did not seek any advice or                   severe infection his mother suffered while pregnant with him,
expert consultation for the penalty phase. Counsel’s                          the result of a stabbing inflicted on her by Hamblin’s father.
explanation for doing nothing in preparation for the                          Aff. of James P. Eisenberg, Ph. D., State v. Hamblin, CR-
sentencing phase was his belief that the case would “plead                    186558, Ex. E to State Post-Conviction Petition (Ohio App.
out” and not go to trial. Id. at ¶ 8. He acknowledged a lack                  Aug. 9, 1989). While an earlier mental evaluation did not
of strategy. He stated that he “did not present the jury with                 show signs of organic deficiency, such as retardation, further
any mitigating evidence, therefore the closing statement                      testing since Hamblin has been in prison shows psychological
consisted of a plea for mercy.” Id. at ¶ 18.                                  problems, but whether their origin is psychological, organic
                                                                              or both is not known.
  If counsel had investigated his case, he would have found
a large body of mitigating evidence. The evidence of                             Jurek did not obtain any family or social history nor did he
Hamblin’s unstable and deprived childhood presented at the                    contact any of Hamblin’s family members except Rhonda
post-conviction proceedings is extensive. Hamblin grew up                     Lezark, the mother of Hamblin’s daughter. Jurek Aff. at ¶¶
in extreme poverty and neglect, surrounded by family                          13-15. Twenty-two family members and friends filed
violence and instability, had a poor education and likely                     affidavits with Hamblin’s state post-conviction petition
suffers from mental disability or disorder. He grew up in                     relating the violence and deprivation of Hamblin’s childhood,
Appalachian Kentucky where his father had a still. His father                 each stating that they would have been available and willing
was very violent and beat Hamblin’s mother and Hamblin                        to testify at the penalty phase but had never been asked to do
regularly. Hamblin’s father was arrested on several occasions                 so.
for public intoxication, manufacture of moonshine and child
neglect. Hamblin’s mother abandoned her children on several                      Counsel also failed to gather any medical information,
occasions, leaving them to fend for themselves, and at times                  including psychological information, on Hamblin. Earlier
resorted to prostitution. Hamblin tried to provide for himself                psychiatric evaluation of Hamblin had shown him competent
                                                                              to stand trial and not to be mentally retarded. Counsel
                                                                              believed, incorrectly, that the issue of competency to stand
                                                                              trial was the only admissible psychological evidence for
the penalty phase of the trial, an d because we have no information as to     mitigation purposes. Relying solely on what he was told by
what Lambros’ role wa s, if any, it is reasonable to conclude that Fred       Hamblin and the prosecutor — that mental competency to
Jurek had sole responsibility for the penalty phase, including preparation.
No. 00-3663                        Hamblin v. Mitchell     13    14    Hamblin v. Mitchell                          No. 00-3663

stand trial was the only relevant issue — counsel did not        to help Hamblin prepare or give this statement. Jurek Aff. at
evaluate Hamblin’s mental condition at the time of trial or      ¶ 17.
inquire further into his mental health. Counsel did not review
the earlier reports concerning Hamblin’s mental status, which      Obviously, counsel’s failure to investigate and prepare for
were prepared for a previous criminal case involving             the sentencing phase of the case violates the ABA standards
Hamblin. An evaluation done in 1964 when Hamblin was 13          and applicable case law discussed above, unless there is some
and had been arrested on juvenile charges stated that Hamblin    other justification for counsel’s performance.
tends “to alienate himself from other people and appears
mistrustful and suspicious of everyone.” School records and                                     C.
IQ tests, among other records, were also available but were
not collected or reviewed. Nor did counsel contact a mental        The district court below found two justifications for
health professional to help him evaluate the existing reports    counsel’s performance. First the court found that defense
or to give him advice on using the psychological information     counsel did not further investigate Hamblin’s mental
previously acquired on Hamblin or to inquire about further       condition for the “strategic” reason that such an investigation
psychological testing. Jurek Aff. at ¶ 16.                       might not reveal any psychological problems or brain injury,
                                                                 thereby preventing a mitigation theory based on those factors.
  Only two witnesses were offered at the penalty phase:          The court said mitigation evidence “could hurt him as easily
Rhonda Lezark and Hamblin himself. The entire proceeding         as help him if exposed to a jury,” and so “Hamblin’s attorneys
consists of about 38 pages and could not have taken more         made a strategic decision not to [investigate or] present
than 45 minutes to present. The prosecution’s closing            mitigating evidence about Hamblin’s deplorable childhood
argument at the penalty phase consumes 10 pages out of the       and wretched upbringing.” App., Vol. I, p. 67. Second, the
38, while defense counsel’s closing argument consists of 3       court found that counsel did not investigate or prepare
pages.                                                           mitigation because his client told him not to present evidence
                                                                 in mitigation.
   Witness Rhonda Lezark was in a long-term relationship
with Hamblin and they have one daughter from that                   The first reason for not investigating is not asserted by
relationship. Lezark had testified for the prosecution during    defense counsel in the record before us and, even if it were,
the guilt phase. In her testimony at the penalty phase she       does not make sense. Because counsel does not know what
stated that Hamblin’s relationship with their child was good.    an investigation will reveal is no reason not to conduct the
She had nothing else positive to say during her short            investigation. Counsel was obligated to find out the facts, not
testimony. She told the jury about Hamblin’s previous prison     to guess or assume or suppose some facts may be adverse.
time and explained that she did not want to testify on his       Counsel admitted he was not sure what further investigation
behalf. Hamblin’s counsel did not prepare her for her            or testing might reveal about Hamblin’s psychological health
testimony at the penalty phase or interview her in advance.      or any organic brain damage. In addition, because the district
                                                                 court did not hold an evidentiary hearing or allow any
  The only other testimony by the defense during the penalty     discovery, many details of why counsel failed to investigate
phase was a relatively short, rambling, almost incoherent,       are not known. And between the time the habeas petition was
unsworn statement given by Hamblin to the jury in an attempt     filed in late 1995 and the issuance of the district court’s order
to explain his background. Counsel admitted he did nothing       in early 2000, Fred Jurek, the lawyer responsible for the
No. 00-3663                         Hamblin v. Mitchell     15    16   Hamblin v. Mitchell                         No. 00-3663

penalty phase, died. This complete failure to investigate         (“counsel can hardly be said to have made a strategic choice
simply cannot be condoned and constitutes a clear                 against pursuing a certain line of investigation when s/he has
constitutional violation.                                         not yet obtained the facts on which such a decision could be
                                                                  made”); Knighton v. Maggio, 740 F.2d 1344, 1350 (5th Cir.
   As to the second justification, the district court said that   1984) (petitioner entitled to relief if record shows that
counsel cannot be ineffective when counsel is simply              “counsel could not make a valid strategic choice because he
following a defendant’s wishes not to investigate or prepare      had made no investigation”).
for the mitigation phase of the case. There is no evidence in
the record that counsel informed Hamblin about the                  Therefore, the two “strategic” justifications for failing to
importance of mitigation to the penalty phase or the              investigate mitigating factors by the court below are
consequences of limiting the penalty phase to his unsworn         insufficient to excuse counsel’s performance. Counsel’s
statement and the testimony of Rhonda Lezark. Since the           performance fell well below minimum standards in capital
district court did not permit an evidentiary hearing or           cases.
discovery in this case, it is not clear what Hamblin said to
Jurek about investigating the case or what Jurek advised                                       III.
Hamblin. But ABA and judicial standards do not permit the
courts to excuse counsel’s failure to investigate or prepare        The Strickland and Wiggins cases in the Supreme Court
because the defendant so requested, assuming that this finding    also require us to examine whether counsel’s deficient
is factually accurate. The Guidelines state that “the             performance prejudiced defendant. This is the second or
investigation regarding penalty should be conducted               “prejudice” prong established by Strickland. Defendant must
regardless of any statement by the client that evidence bearing   show “that there is a reasonable probability that, but for
upon penalty is not to be collected or presented,” because        counsel’s unprofessional errors, the result of the proceeding
                                                                  would have been different. A reasonable probability is a
  [c]ounsel cannot responsibly advise a client about the          probability sufficient to undermine confidence in the
  merits of different courses of action, the client cannot make   outcome.” Strickland, 466 U.S. at 694. Hamblin must
  informed decisions, and counsel cannot be sure of the           demonstrate that “counsel’s errors were serious enough to
  client’s competency to make such decisions, unless counsel      deprive [him] of a proceeding the result of which was
  has first conducted a thorough investigation ....               reliable.” Glenn v. Tate, 71 F.3d 1204, 1210 (6th Cir. 1995).
                                                                  Hamblin has sufficiently demonstrated that the utter failure of
ABA Guidelines § 10.7 (2003) at pp. 80-81. This guideline         his counsel effectively to present at sentencing the wealth of
is supported by our decisions in Austin v. Bell, supra, 126       mitigating evidence “undermines confidence in the outcome”
F.3d at 849, and Coleman v. Mitchell, supra, 268 F.3d at 447,     of the sentencing phase of his trial.
as well as by a number of cases from other circuits, see, e.g.,
Blanco v. Singletary, 943 F.2d 1477, 1501-03 (11th Cir.             Under federal law, one juror may prevent the death penalty
1991) (counsel ineffective for “latching onto” client’s           by finding that mitigating factors outweigh aggravating
assertions that he did not want to call penalty phase witnesses   factors. As the Supreme Court recently said in Wiggins, the
and failing to conduct an investigation sufficient to allow       “prejudice” prong is satisfied if “there is a reasonable
client to make an informed decision to waive mitigation);         probability that at least one juror would have struck a
United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)           different balance.” 123 S. Ct. at 2543.
No. 00-3663                          Hamblin v. Mitchell      17    18    Hamblin v. Mitchell                           No. 00-3663

   Ohio is a “weighing” state, which means that the                 case, including whether Hamblin’s counsel was ineffective in
aggravating circumstances must outweigh the mitigating              other aspects of the sentencing phase and whether
factors in order to impose the death penalty. Hamblin has           prosecutorial misconduct at the sentencing phase undermined
presented substantial evidence of a childhood in which abuse,       Hamblin’s constitutional right to a fundamentally fair trial.
neglect, violence and hunger were common. In light of the           We will now turn to the issues raised by Hamblin concerning
quantity of mitigation evidence available, we find ourselves        the guilt phase of his trial.
unpersuaded that there is a reasonable probability that a jury
would have returned the same sentence had the evidence been                   A. Ineffective Assistance of Counsel at
introduced. Our confidence in the outcome of Hamblin’s trial                            Culpability Phase
has been undermined by counsel’s failure to include the
details of Hamblin’s background during their penalty phase             Hamblin contends that his counsel should have put on an
presentation. In our view, had the available evidence been          expert pathologist to counter the testimony of the
presented — about Hamblin’s mental history and abusive              prosecution’s expert. The Cuyahoga County Coroner testified
childhood — at least one juror would have voted against the         that Lillian Merrick was killed by one or more blows to the
death penalty. He is therefore entitled to a new trial at the       head. Hamblin claims that an independent pathologist might
penalty phase. The sentencing phase of the trial under Ohio         have shown that death resulted from a single blow to the head
law is obviously a critical stage of the criminal proceeding        intended only to disable the victim for purposes of robbing
which can result in the sentence of death and did so in this        her, not to kill her — a less gory and disturbing scenario of
case. Yet Hamblin’s counsel performed virtually no                  the incident than that presented by the prosecution. The
investigation to prepare a defense. Counsel presented no            performance of counsel in this respect at the guilt phase was
meaningful evidence by way of mitigation as a result of the         poor, to say the least, because of his failure to try to retain an
failure to investigate and prepare, not as a result of trial        independent expert, such as a pathologist, to investigate fully
strategy after thorough research. It is not just that the defense   the position of the prosecution that the victim received
presented on Hamblin’s behalf at the sentencing phase was           numerous blows to the head, an inference not supported by
ineffective; rather, Hamblin’s counsel did not present any          the evidence in the record before us. He could perhaps have
meaningful mitigation evidence at the sentencing phase              made a showing that there was only one blow to the head and
because he was not prepared due to his lack of knowledge            hence raised a stronger inference of lack of intent to kill. But
and understanding of the sentencing phase of a capital case.        in the end we cannot know the answer because no expert has
This total lack of preparation, investigation and understanding     yet appeared to clarify the issue. Absent such evidence, we
of sentencing caused counsel’s deficient performance and            therefore cannot say that this failure was harmful to the
extreme prejudice to Hamblin.                                       defendant and that he was prejudiced by it.

                              IV.                                     The State also called a witness from the Ohio Bureau of
                                                                    Criminal Identification and Investigation to explain
  Because we find that counsel’s failure to investigate             electrophoresis, the technique by which the victim’s blood
possible mitigating circumstances constitutes ineffective           was matched to the blood found on a jacket in Hamblin’s
assistance of counsel warranting a new penalty phase trial for      home. Defendant claims that an expert witness could have
Hamblin, we pretermit any other sentencing issues raised in         explained that electrophoresis is unreliable, especially when
the habeas petition concerning the sentencing phase of the          performed on post-mortem samples, and such testimony
No. 00-3663                         Hamblin v. Mitchell     19    20   Hamblin v. Mitchell                          No. 00-3663

would have raised doubts about its value in this case. This          The prosecutor’s repeated reference to the numerous blows
error was likely harmless given the physical evidence             received by the victim is not backed by the evidence. The
presented at trial to demonstrate defendant’s guilt — Lillian     pathologist for the state testified that the victim received at
Merrick’s personal effects were found in the defendant’s          least one blow to the head that caused her death. She went on
house and car and the gun found in the house matched that         to explain that the body showed no evidence of more than one
used to shoot the park ranger. Even if defense counsel had        blow to the head, although she could not rule out that further
called expert witnesses to testify on electrophoresis, it would   blows might have occurred that did not show up on the body.
not likely have changed the outcome of the culpability phase.     Neither this testimony by the state’s pathologist, nor any other
                                                                  evidence, supports the prosecutor’s inference that the victim
       B. Prosecutorial Misconduct/Brady Issues                   was repeatedly hit and beaten. The remarks were prejudicial
                                                                  because they implied that defendant beat the victim beyond
  Defendant raises prosecutorial misconduct in two ways:          all reason when the evidence shows that it is more likely the
(1) Inappropriate comments during trial and sentencing and        victim received one blow to the head that killed her.
(2) failure to turn over exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963).                              Despite the inappropriate references by the prosecutor, we
                                                                  cannot say that his comments were “so fundamentally unfair
  1. Prosecutor’s Comments. To grant relief for                   as to deny [the defendant] due process” based on the “totality
prosecutorial misconduct, the prosecutor’s comments must          of the circumstances.” Many of the improper comments came
be “so fundamentally unfair as to deny [the defendant] due        during the closing and the jury was instructed by the court
process” based on the “totality of the circumstances.”            shortly thereafter to look only to the evidence, not the
Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974); accord       comments of the lawyers. Furthermore, the considerable
Kincade v. Sparkman, 175 F.3d 444, 445-56 (6th Cir. 1999)         amount of physical evidence pointing to defendant’s guilt
(prosecutorial misconduct found where prosecutor inferred         cannot be ignored. The jury was likely to convict defendant
that defendant committed other burglaries than the one for        based on this evidence even had the prosecution not made the
which he was standing trial). Specifically, our court takes       improper comments. The comments went to the nature and
into account:                                                     intent of the attack, not to defendant’s guilt or innocence of
                                                                  killing the victim. Accordingly, we find that the comments
  the degree to which the remarks complained of have a            made by the prosecutor were error, but that the jury would
  tendency to mislead the jury and to prejudice the               probably have returned the verdict of guilty anyway.
  accused; whether they are isolated or extensive; whether
  they were deliberately or accidentally placed before the          2. Brady Violation. Under Brady, the prosecution must
  jury and the strength of the competent proof to establish       disclose favorable evidence to the defendant. Favorable
  the guilt of the accused.                                       evidence is material if “there is a reasonable probability that,
                                                                  had the evidence been disclosed to the defense, the result of
Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982) (en          the proceeding would have been different.” United States v.
banc) (citing United States v. Leon, 534 F.2d 667, 677 (6th       Bagley, 473 U.S. 667, 682 (1985). Here, the question is
Cir. 1976)); see also United States v. Carroll, 26 F.3d 1380      whether the government failed to preserve evidence that
(6th Cir. 1994).                                                  might have been useful to the defendant. The defendant must
                                                                  show that the government (1) acted in bad faith in failing to
No. 00-3663                          Hamblin v. Mitchell      21    22   Hamblin v. Mitchell                         No. 00-3663

preserve the evidence; (2) that the exculpatory nature of the       questioning occurred after he told the police he wanted a
evidence was apparent and (3) the defendant was unable to           lawyer and was told he couldn’t have one until Monday.
obtain similar evidence. Arizona v. Youngblood, 488 U.S. 51,
57-58 (1988).                                                         The tapes themselves contain mostly irrelevant and/or
                                                                    inadmissible ramblings of the defendant about himself. On
  The State’s firearm expert testified that there was a negative    direct appeal, the Ohio Supreme Court found admission of the
result on the defendant’s clothes for gunshot residue. The          tapes to be harmless error because the physical evidence of
defense was not notified of the results before trial; and, by the   guilt was substantial. We agree. The tapes contained
time of trial, the state had lost the evidence. Defendant claims    information about prior crimes, vulgar language from
that the evidence was necessary because it might have cast          defendant concerning hatred of homosexuals and other
doubt on whether he shot the ranger. (The shooting of the           general information about defendant and his sordid past.
ranger and the murder of Lillian Merrick were tried together.)      Although the tapes should not have been admitted, we do not
The district court, although finding the claim procedurally         believe their introduction affected the guilty verdict. Much of
defaulted, addressed it and found no bad faith on the part of       the information on the tapes was cumulative of information
the government and found the evidence of only “speculative”         that was properly admitted, and the physical evidence
materiality.                                                        pointing to defendant’s guilt was very strong, rendering this
                                                                    evidentiary error harmless.
  Again, given that the evidence of defendant’s guilt is
substantial, we cannot find that a “reasonable probability”           For the foregoing reasons, we reverse the judgment of the
exists that the state’s failure “undermines confidence in the       district court and order that the writ of habeas corpus be
outcome of the trial.” Although the government should               granted unless defendant receives a new penalty phase trial
always turn over results from firearm tests, and it was at fault    within 180 days of this order.
for failing to do this here, this evidence would not have had
an impact on the outcome of the guilt phase nor has it
otherwise “undermined” our confidence in the outcome.
   C. Playing Defendant’s Taped Statements at Trial
   Defendant was arrested at a bar and taken to the police
station at 11:30 P.M. the night of the incidents. His statement
was taken a little after midnight but Hamblin was not actually
cross-examined because he had been drinking. Two more
statements were taped later that day and the next (Friday and
Saturday, October 14 and 15, 1983). Defendant was given
Miranda warnings before he was questioned and the
prosecution claims that he waived his right to an attorney or
to remain silent. Hamblin claims that he did not knowingly
waive his Miranda rights and was told he could not see a
lawyer until Monday. According to defendant, most of the
No. 00-3663                        Hamblin v. Mitchell      23    24   Hamblin v. Mitchell                         No. 00-3663

                    _________________                             history of physical abuse, had no history of sexual abuse.
                                                                  Unlike Wiggins, who had no prior history of violence or
                        DISSENT                                   criminal activity, Hamblin had a criminal history that
                    _________________                             involved acts of violence. Unlike the petitioner in Glen,
                                                                  Hamblin cannot point to any medical opinion establishing
   ALICE M. BATCHELDER, Circuit Judge, dissenting. I              neurological impairment or global brain damage, nor can he
respectfully dissent from the granting of the writ, although I    demonstrate mental retardation. And unlike the petitioner in
agree that counsel’s assistance during the penalty phase of       Glen, Hamblin cannot complain that while his own counsel
Hamblin’s capital trial was deficient. The majority opinion       failed to present evidence of his mental and psychological
correctly reflects that prior to both the 2003 revisions to the   deficits, the prosecutor presented expert testimony that he
1989 ABA Guidelines, and the Supreme Court’s decision in          suffered from no such deficits.
Wiggins v. Smith, 123 S. Ct. 2527 (2003), this circuit handed
down several cases requiring that defense counsel in a capital      Because I do not agree that there is a reasonable probability
case perform a complete mitigation investigation, including       that Hamblin’s jury, had it been presented with the evidence
inquiry into the defendant’s social, physical, medical and        of Hamblin’s ugly childhood, would not have imposed the
mental history. This case law, which involved assistance of       death penalty, I dissent from the granting of the writ.
counsel rendered prior to the 1989 ABA Guidelines, sets a
standard that is very similar to those 1989 Guidelines. And
under the standard articulated by this court in, for example,
Glen v. Tate, 71 F.3d 1204 (6th Cir. 1995), Hamblin’s
counsel failed to do the mitigation inquiry required.
   I dissent from the granting of the writ because I do not
agree with the majority opinion that defense counsels’ failure
to make the necessary mitigation investigation resulted in the
degree of prejudice necessary to meet the Strickland
requirement. Hamblin is not like the defendant in Wiggins,
who had been physically abused as a child and, more
importantly insofar as the Court was concerned, had been
sexually abused repeatedly in foster care throughout his
childhood and adolescence. See, e.g., Wiggins, 123 S. Ct. at
2537 (“Had counsel investigated further, they may well have
discovered the sexual abuse later revealed during state
postconviction proceedings.”); at 2539 (“[T]he records
contain no mention of sexual abuse, much less of the repeated
molestations and rapes of petitioner detailed in the Selvog
report.”); at 2539 (“The [Maryland Court of Appeals] also
assumed, erroneously, that the social services records cited
incidences of sexual abuse.”) Hamblin, although having a
