       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Sowell v. Bradshaw                          No. 02-3441
    ELECTRONIC CITATION: 2004 FED App. 0193P (6th Cir.)
                File Name: 04a0193p.06                    Collyer, OFFICE OF THE ATTORNEY GENERAL OF
                                                          OHIO, Cleveland, Ohio, Charles L. Wille, OFFICE OF THE
                                                          ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for
UNITED STATES COURT OF APPEALS                            Appellant. Mark A. Vander Laan, Christopher R. McDowell,
                                                          DINSMORE & SHOHL, Cincinnati, Ohio, Randall L. Porter,
              FOR THE SIXTH CIRCUIT                       OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus,
                _________________                         Ohio, for Appellee.

 BILLY JOE SOWELL ,                X                        ROGERS, J., delivered the opinion of the court, in which
            Petitioner-Appellee, -                        BATCHELDER, J., joined. MOORE, J. (pp. 31-36),
                                    -                     delivered a separate dissenting opinion.
                                    -  No. 02-3441
             v.                     -                                         _________________
                                     >
                                    ,                                             OPINION
 MARGARET BRADSHAW,                 -
 Warden,                                                                      _________________
                                    -
        Respondent-Appellant. -                              ROGERS, Circuit Judge. The state of Ohio indicted
                                    -                     Petitioner Billy Joe Sowell for murder, with a stipulation that
                                   N                      he could receive the death penalty. Relying on advice of his
       Appeal from the United States District Court       counsel, Sowell opted to be tried by a three-judge panel rather
      for the Southern District of Ohio at Columbus.      than by a 12-member jury. Sowell’s counsel was confident
  No. 94-00237—Edmund A. Sargus, Jr., District Judge.     that one of the three judges on the panel would refuse to
                                                          recommend death. The panel nevertheless imposed the death
               Argued: October 29, 2003                   penalty, and Sowell’s direct and collateral appeals through the
                                                          Ohio courts were unsuccessful. On federal habeas review,
           Decided and Filed: June 23, 2004               however, the district court granted a writ of habeas corpus,
                                                          finding that Sowell’s jury waiver was not knowing and
Before: BATCHELDER, MOORE, and ROGERS, Circuit            intelligent, and that his counsel was ineffective. We reverse
                   Judges.                                the district court’s grant of a writ of habeas corpus to Sowell
                                                          because he has not demonstrated that his jury waiver was not
                  _________________                       knowing and intelligent or that his counsel was ineffective.

                       COUNSEL                                        FACTS AND PROCEDUR AL HISTORY

ARGUED:        Michael L. Collyer, OFFICE OF THE            As the facts that underlie Sowell’s death penalty are not in
ATTORNEY GENERAL OF OHIO, Cleveland, Ohio, for            controversy, we rely on the Ohio Court of Appeals’s version:
Appellant. Mark A. Vander Laan, DINSMORE & SHOHL,
Cincinnati, Ohio, for Appellee. ON BRIEF: Michael L.

                            1
No. 02-3441                        Sowell v. Bradshaw           3   4      Sowell v. Bradshaw                          No. 02-3441

    The record discloses that [Sowell] and [Calvert]                    building [Sowell] realized that he was not in the mood to
 Graham resided in adjacent apartments on the third floor               retire for the evening, and instead presented himself at
 of an apartment building in downtown Cincinnati.                       Graham’s apartment. Graham greeted [Sowell] and
 [Sowell] was the resident manager of the building and                  invited him inside, where Edwards and Billups were also
 became acquainted with Graham, who performed                           present. Graham produced a marijuana cigarette which
 occasional odd jobs at the apartment building. After                   was consumed by all four occupants.
 Graham became a resident in [Sowell’s] apartment                          [Sowell] testified before the trial court that following
 building, the two men developed a friendly relationship                the consumption of the marijuana, he fell asleep for a
 and visited one another in their respective residences.                short time. When he awoke the others were still present
    On May 1, 1983, three days prior to the instant                     and [Sowell] discovered that approximately $190 had
 offenses, [Sowell] was a guest in Graham’s apartment.                  been removed from his trouser pocket. At first [Sowell]
 Also present were Donna Edwards (Edwards), a woman                     thought that the trio was playing a joke upon him;
 with whom Graham shared the apartment, and [Pam]                       however, his requests for the return of his money
 Billups [a former prostitute who had been visiting                     received no response. [Sowell] further testified that
 Graham and Edwards]. Graham offered two marijuana                      Graham then picked up a knife and ordered [Sowell] to
 cigarettes to [Sowell], which he accepted. Thereafter                  leave the residence. [Sowell] complied and departed, but
 [Sowell] left the apartment in the company of Billups and              he was extremely angry as a result of his loss.
 proceeded to a nearby restaurant where he purchased                       Both Billups and Edwards told the trial court that
 dinner for her. En route to the restaurant, [Sowell]                   [Sowell’s] visit to the apartment on the day in question
 smoked the second marijuana cigarette, having consumed                 was at first friendly. However, [Sowell] soon became
 the first at Graham’s residence. Thereafter the pair made              agitated and accused Billups of being unsociable in that
 their way to a hotel where [Sowell] rented a room. There               she did not speak to him earlier that afternoon. [Sowell]
 was conflicting testimony concerning the events that                   also accused Billups of stealing $24 from him during
 transpired thereafter. However, it is not disputed that                their encounter three days earlier. When [Sowell]
 [Sowell] eventually lost consciousness, having consumed                referred to Billups in terms meant to insult her pedigree,
 an unspecified quantity of wine during the evening in                  Graham ordered [Sowell] to leave the premises. [Sowell]
 addition to the marijuana. The next morning [Sowell]                   left, stating that he was going to obtain his gun, return
 made his way back to his residence, stopping along his                 and shoot Billups.
 route to obtain breakfast for Billups.                                    [Sowell] went directly to his apartment where he
    [Sowell] next encountered Billups on the afternoon of               directed his common-law wife, Lenora Waugh (Waugh),
 May 4, 1983. Billups was in the company of Edwards                     to bring his gun to him. Waugh complied with that
 and the trio passed in the doorway of a store but did not              request, as well as with [Sowell’s] instructions to
 acknowledge one another. As will be seen, this                         accompany him to Graham’s apartment. Upon returning
 seemingly inconsequential meeting gained significance                  to Graham’s door, Waugh, at [Sowell’s] instruction,
 later in the day.                                                      knocked and indicated to those inside that she was a
    That evening [Sowell] returned to his apartment                     woman named Portia. Graham responded to the door
 building after, according to his testimony, visiting no less           and opened it. Edwards and Billups testified, and the
 than five taverns and consuming at least one double shot               trial court found, that [Sowell] forced his way into the
 of vodka at each stop. Upon returning to his apartment                 apartment, firing a bullet from his handgun into the
No. 02-3441                         Sowell v. Bradshaw           5   6       Sowell v. Bradshaw                                     No. 02-3441

  ceiling as he entered. [Sowell] demanded to know                   of attempted murder in violation of O.R.C. §§ 2903.01(A)
  Billups’s whereabouts and threatened to shoot her.                 and 2923.02(A). The aggravated murder count contained a
  Graham was able to calm [Sowell] and began to escort               capital specification alleging that the aggravated murder was
  him from the apartment and to close the door, whereupon            part of a course of conduct involving the aggravated murder
  [Sowell] suddenly turned and shot Graham in the                    of one person and the attempt to murder another. See O.R.C.
  abdomen. As Graham fell, [Sowell] fired a second shot              § 2929.04(A)(5) (“Imposition of the death penalty for
  into Graham’s skull. Graham fell to the floor, mortally            aggravated murder is precluded, unless . . . the following is
  wounded.                                                           specified in the indictment . . . and proved beyond a
     [Sowell] next made his way to the closet in which               reasonable doubt: . . . the offense at bar was part of a course
  Billups was cowering, and fired three bullets into her             of conduct involving the purposeful killing of or attempt to
  body. [Sowell] next placed the gun to Billups’s forehead           kill two or more persons by the offender.”).1
  and pulled the trigger. However, the gun did not expel a
  bullet because it no longer contained ammunition.
                                                                         1
  [Sowell] left the apartment after warning Edwards not to               Fox v. Coyle, 271 F.3d 658, 664 –65 (6th C ir. 200 1), briefly
  leave the premises or he would shoot her also. [Sowell]            summ arizes O hio’s capital sentencing system.
  returned to his apartment, obtained money and made his
  way to a nearby tavern where he was apprehended by the                      In common with other states that emp loy the d eath pena lty,
                                                                         Ohio uses a weighing method to determine whether an
  police.                                                                individual charged with a capital offense receives the death
     [Sowell] testified regarding the shootings and told the             penalty. An ind ividual beco mes eligible for the death penalty
  court that he returned to Graham’s apartment to demand                 only if one or more of a series of statutory aggravating
  his money and that he was confronted by Graham, who                    circumstances “is specified in the indictment . . . and proved
  was armed with a knife. [Sowell] stated that it was only               beyond a reasonable doubt.” [O .R.C.] § 29 29.0 4(A). . . . Once
                                                                         an individual has been found guilty of a capital offense, a jury or
  after Graham made a furtive movement that [Sowell]                     three-judge pane l must determine whether the presence of one
  began shooting at Graham, and that one of the bullets                  or more of the nine statutory aggravating circumstances listed at
  struck the ceiling. [Sowell] explained his conduct as                  [O.R .C.] § 2929.0 4(A) outweighs the mitigating circumstances
  follows: “It just, I just clocked out. When I seen that                presented by the defendant. The three-judge panel [or jury is
  person going this way I just pivoted, I pivoted on my                  then] required to “weigh against the aggravating circumstance
                                                                         proved beyond a reasonable doubt, the nature and circumstances
  gun, I was shooting, I was angry, I started shooting, I just           of the offense, the history, character, and background of the
  started shooting everybody I seen.”                                    offender, and all of the following factors [listing factors such as
                                                                         age, mental disease , and p rovo cation].” [O .R.C.] § 2929 .04(B).
Ohio v. Sowell, No. C-830835, 1986 WL 9082, at *1–*2
(Ohio Ct. App. Aug. 20, 1986) (footnotes omitted); see                         In weighing the aggravating circumstances against the mitigating
                                                                     factors, the
also Ohio v. Sowell, 530 N.E.2d 1294, 1297–98 (Ohio 1988).
                                                                              court, and the trial jury if the offender was tried by a
The Trial Court Proceeding                                                    jury, [1] sha ll consid er . . . any evidence raised at trial
                                                                              that is relevant to the aggravating circumstances the
  On May 26, 1983, a Hamilton County grand jury indicted                      offender was found guilty of committing or to any
Sowell on one count of aggravated murder in violation of                      factors in mitigation of the imposition of the sentence
                                                                              of death, [2] shall hear testimony and other evidence
Ohio Revised Code (“O.R.C.”) § 2903.01(A), and one count                      that is relevant to the nature and circumstances o f the
No. 02-3441                                Sowell v. Bradshaw             7   8      Sowell v. Bradshaw                         No. 02-3441

  On October 14, 1983, Sowell appeared before the trial                       The State Post-Conviction Proceedings
judge, Judge Crush. Sowell waived his right to a jury trial
and asked to be tried by a three-judge panel, as Ohio’s capital                  On December 20, 1989, Sowell filed in the Hamilton
scheme allows. See O.R.C. § 2945.06. Trial began on                           County Court of Common Pleas a post-conviction petition
October 18, and on October 20 the panel unanimously found                     that raised 41 claims for relief, the 29th of which argued that
Sowell guilty of all charges, including the capital                           Sowell’s jury waiver was not knowing, voluntary, and
specification. The sentencing phase (also called the                          intelligent. His sole support for this claim was an affidavit
“mitigation phase”) was held on November 2, and, on the                       attached to the petition, in which he averred that he had
following day, the panel sentenced Sowell to death on the                     waived his right to a jury trial only because his counsel had
aggravated murder count and 7 to 25 years on the attempted                    assured him that he would not receive a death sentence if he
murder count.                                                                 went with a three-judge panel. Specifically he stated, “I
                                                                              would not have waived my right to a trial by jury if my
The Direct Appeal                                                             counsel had not informed me that such a waiver would mean
                                                                              that my life would be spared.” J.A. at 262. Though the trial
  Sowell appealed to the Ohio Court of Appeals, which                         court could have found that he had procedurally defaulted on
affirmed the conviction and sentence on August 20, 1986.                      this claim because he could have raised it on direct appeal,
Sowell, 1986 WL 9082. The Supreme Court of Ohio                               see Ohio v. Cole, 443 N.E.2d 169, 170–71 (Ohio 1982)
similarly affirmed, on November 16, 1988, see Sowell, 530                     (setting out Ohio’s rules for raising new claims on post-
N.E.2d 1294; and the U.S. Supreme Court denied certiorari,                    conviction appeal), the court instead found a more indirect
see Sowell v. Ohio, 490 U.S. 1096 (1989). This ended                          default by holding that Sowell’s “self serving” affidavit was
Sowell’s direct appeal. Thus far, Sowell had not complained                   insufficient to rebut the presumption of validity established by
that his waiver of jury trial had been invalid.                               his and his attorney’s on-the-record assurances to the trial
                                                                              court that the waiver was knowing and intelligent. Overall,
                                                                              the court granted summary judgment to the state.
       aggravating circumstances the offender was found                          With respect to his jury trial waiver, Sowell appealed to the
       guilty of committing, the mitigating factors set forth in              Ohio Court of Appeals and argued that he was entitled to
       division (B) of sectio n 2929.0 4 of the Revised Code,                 relief because “he was promised a life sentence by his trial
       and any other factors in mitigation of the imposition of
       the sentence o f death, and [3 ] shall hea r the statem ent,
                                                                              attorneys if he waived his right to a jury trial.” J.A. at 340.
       if any, of the offender, and the arguments, if any, of                 In a new claim, he further argued that
       counsel for the defense and prosecution, that are
       relevant to the penalty that should be imposed on the                      trial counsel was ineffective due to their waiving a jury
       offend er.                                                                 trial without adequately assuming that Appellant’s life
                                                                                  would be spared. A jury should only be waived if
   [O.R .C.] § 29 29.0 3(D )(1). Finally, if the court or three-judge
   panel impo ses the sentence of death, it must sp ecify in a separate
                                                                                  counsel has received sufficient assurances that a three
   opinion the aggravating and mitigating circum stances found to                 judge panel will in fact spare the accused’s life. To try
   be present as well as “the reasons why the aggravating                         the case without sufficient assurances does not meet the
   circumstances the offender was found guilty of committing were                 prevailing standards of practice for capital defense
   sufficient to outweigh the mitigating factors.” [O.R.C.]                       attorneys.
   § 29 29.0 3(F).
No. 02-3441                                Sowell v. Bradshaw            9    10    Sowell v. Bradshaw                           No. 02-3441

J.A. at 341 (citations omitted). The Ohio Court of Appeals                    The Present Federal Habeas Petition
agreed with the trial court that Sowell’s affidavit was not
enough to rebut the presumption established by Sowell’s                         Sowell renewed his federal habeas petition on May 24,
representations to the original trial court that his waiver was               1994, raising 52 claims. Only two of these claims are
knowing and valid. Ohio v. Sowell, 598 N.E.2d 136, 143                        involved in the present appeal. They are as follows:
(Ohio Ct. App. 1991). The Ohio Court of Appeals did not
address Sowell’s current ineffective assistance argument,                       Fifth Ground for Relief. The action of trial counsel
apparently finding that it was procedurally defaulted. See id.                  deprived Petitioner Sowell his right to the effective
at 142. Sowell’s subsequent appeal to the Supreme Court of                      assistance of counsel during the trial phase of his case in
Ohio, which appeal again raised the jury waiver issue, was                      violation of the Fifth, Sixth, Eighth and Fourteenth
dismissed for lack of jurisdiction. Ohio v. Sowell, 579 N.E.2d                  Amendments to the United States Constitution.
1394 (Ohio 1991).                                                               ....
                                                                                Thirty-Fourth Ground for Relief. Petitioner Sowell’s
The Initial Federal Habeas Petition, and the Murnahan                           waiver of a jury trial which was not knowingly,
Application                                                                     intelligently and voluntarily entered violated his rights as
                                                                                guaranteed by the Sixth, Eighth and Fourteenth
  Sowell filed a federal habeas petition in April of 1992, but                  Amendments to the United States Constitution.
the district court dismissed the petition without prejudice for
lack of exhaustion, finding that Sowell could perhaps raise his               J.A. at 95, 157. Sowell’s Fifth Claim asserted that counsel
ineffective assistance of appellate counsel claims via the                    had not received sufficient assurances that a jury waiver
Supreme Court of Ohio’s newly-created Murnahan                                would avoid the death penalty, and the Thirty-Fourth Claim
application procedure.2 However, the Ohio courts denied his                   asserted that Sowell’s waiver of a jury trial was
Murnahan motions. Ohio v. Sowell, 622 N.E.2d 649 (Ohio                        constitutionally inadequate.
1993).
                                                                                 For the next five years, the parties litigated various issues,
                                                                              including discovery, expansion of the record, merits briefing,
                                                                              and whether Sowell should be granted an evidentiary hearing.
                                                                              In 1994 the Warden sought to have 31 of Sowell’s
    2                                                                         claims—including the Thirty-Fourth claim but not the
      In Ohio v. Murnahan, 584 N.E.2d 1204 (O hio 1992)— a case
handed down a couple of months before Sowell filed his federal habeas         Fifth—dismissed due to procedural default. On February 18,
petition— the Supreme Court of Ohio considered whether a defendant            1998, the district court issued an Opinion and Order finding
could com plain o f ineffective a ssistance of appellate counsel in state     that six of the claims were defaulted, but that the Thirty-
post-conviction proceed ings und er the state’s post-conviction appeal        Fourth claim was not. The following month, on March 10,
statute, O.R.C. § 295 3.21. The court held that defend ants cannot do this,   Sowell filed a motion for an evidentiary hearing on various of
and instead must file a motion for delayed reconsideration with the
appellate court in which the alleged error took place. See 584 N.E.2d at
                                                                              his claims, including the Fifth Ground but not the Thirty-
120 9. Notably, the procedure required by Murnahan was the procedure          Fourth. Earlier, on January 27, 1998, Sowell had filed a
that had been required since at least 1983 by the Ohio Court of Appeals       traverse that requested an evidentiary hearing on the Thirty-
in Hamilton County, where Sowell’s trial and appeal were conducted. See       Fourth claim. On September 29 of the same year, the district
Oh io v. Rone, No. C-820640, 1983 WL 5172, at *4 (Ohio Ct. App. Aug.          court issued an Opinion and Order that granted an evidentiary
31, 1983 ).
No. 02-3441                                Sowell v. Bradshaw          11     12       Sowell v. Bradshaw                          No. 02-3441

hearing for the Fifth and the Thirty-Fourth claims on the                        On October 5, 2001, the district court partially granted a
grounds that the state court’s post-conviction findings “were                 conditional writ of habeas corpus, finding that Sowell had
inadequate to resolve the factual dispute of whether                          properly waived his right to a jury in relation to the guilt
petitioner’s jury waiver was induced by erroneous assurances                  phase of his trial, but not the sentencing phase. The court left
on the part of his trial attorneys . . . .” J.A. at 427. The court            undisturbed Sowell’s 7- to 25-year sentence for attempted
also allowed Sowell to expand the record by including an                      murder, and gave Ohio the option of retrying Sowell entirely,
affidavit from Martin Pinales, one of his two trial attorneys,                or of leaving the conviction in place and imposing any
on the jury waiver issue. This was the second expansion of                    sentence Ohio law permits, other than death. The court did
the record granted by the court regarding the jury waiver                     not address Sowell’s other grounds for relief. The Warden
issue, since earlier in the litigation the court had allowed                  filed a motion to alter or amend, which the court denied, and
Sowell to add to the record the correspondence between                        a motion to stay, which the court granted. The Warden,
Pinales and post-conviction counsel on this issue.                            currently Margaret Bradshaw, now appeals.
   The district court conducted an evidentiary hearing on                                               DISCUSSION
April 21, 1999, at which Sowell presented four witnesses:
Pinales, Sowell, Dr. Gelbort (a neuropsychologist), and                          Since Sowell filed his habeas petition prior to 1996, pre-
Donald Schumacher (an “attorney-expert”). At this hearing,                    AEDPA standards apply. Powell v. Collins, 332 F.3d 376,
Pinales testified to his belief that Sowell’s life would be                   388 (6th Cir. 2003). Under those standards, we review de
spared by a three-judge panel because of inferences from his                  novo a district court’s legal conclusions in granting a writ of
discussion with Judge Crush at a pretrial conference.3 Pinales                habeas corpus, and for clear error the district court’s factual
admitted that he strongly suggested to Sowell that he choose                  findings. Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir.
the three-judge panel to avoid the death penalty. Sowell                      2000). The writ of habeas corpus may only issue if the state
testified that he “had faith and conviction and belief in [his]               court proceedings were fundamentally unfair as a result of a
attorney” and he “thought that [he] wasn’t going to get the                   “violation of the Constitution or laws or treaties of the United
death penalty” by waiving the jury. J.A. at 573. Dr. Gelbort                  States.” See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502
opined that Sowell’s ability to reason, ponder and project into               U.S. 62, 67–68 (1991). The state court’s factual findings are
the future were in the bottom two percent of the population.                  entitled to a presumption of correctness, which is rebuttable
Schumacher stated that Pinales’ counseling of Sowell—a                        only by convincing evidence. 28 U.S.C. § 2254(d) (now
client with abnormally low intelligence—was deficient                         repealed)4; McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th
because the “downside” of the choice was not explained by                     Cir. 1996). This presumption only applies to basic, primary,
counsel or in the waiver colloquy with the court.                             or historical facts, and to “implicit findings of fact, logically
                                                                              deduced because of the trial court’s ability to adjudge the
                                                                              witnesses’ demeanor and credibility.” McQueen, 99 F.3d at
                                                                              1310. The presumption does not apply to mixed questions of
                                                                              law and fact, or questions of law, both of which are reviewed
    3
     Pinales testified that his “impression of the overview of what
occurred” was that Pinales “got the feeling in the discussions with Judge          4
Crush that if a jury was waived, this would not be a capital case.” J.A. at         All citations to § 2254 in this opinion refer to the pre-AEDPA
525.                                                                          version.
No. 02-3441                         Sowell v. Bradshaw      13    14   Sowell v. Bradshaw                           No. 02-3441

de novo. Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir.            The legal ground underlying this argument is the principle
2001).                                                            that “the doctrine of exhaustion requires that a claim be
                                                                  presented to the state courts under the same theory in which
I. Procedural Default                                             it is later presented in federal court.” Wong v. Money, 142
                                                                  F.3d 313, 322 (6th Cir. 1998); but see Prather v. Rees, 822
  A. Abandonment of the Jury Waiver Claim in Sowell’s             F.2d 1418, 1421 (6th Cir. 1987) (“[I]f the difference is merely
     Post-Conviction Appeal                                       a variation in the legal theory, rather than a different legal
                                                                  claim, [then the petitioner] has exhausted his claim.”). In
  Contrary to the Warden’s argument, Sowell did not               Wong, the petitioner had argued to the state courts that her
“abandon” his ineffective-jury-waiver claim in his post-          counsel was ineffective for failing to present an insanity
conviction appeal. Sowell first raised the jury waiver issue in   defense, but on appeal she attempted to argue in addition that
his post-conviction proceedings before the Ohio trial court as    her counsel was ineffective for prematurely abandoning the
his twenty-ninth cause of action, arguing that “Petitioner        search for an expert who would say she was insane, even
Sowell’s waiver of a jury trial was not a knowing and             though two experts had already found that she was not insane.
intelligent waiver of his right to a jury trial” because          Wong, 142 F.3d at 319-22. The panel found that the latter
“Petitioner was advised by his counsel that if he waived his      claim advanced a new theory, and was procedurally defaulted.
jury trial, he would not receive the death penalty.” J.A. at      Id. at 321-22.
244–45. He raised this argument again before the Ohio Court
of Appeals. And on appeal to the Supreme Court of Ohio, he          It is not necessary for us to determine whether Sowell has
raised it again, this time with a little more legal argument.     raised a different legal claim here, or merely presents a
                                                                  variation in legal theory, because we are persuaded that the
  B. Presentation of Jury Waiver Claim on Grounds Other           Warden, by advising the district court that she would not
     Than Those Presented to the State Court                      object to the testimony of Dr. Gelbort that supported the
                                                                  claim, has waived her right to object.
  Sowell argued to the state courts that his waiver was not
knowing because he acted in reliance on his counsel’s               C. Failure to Attach Sufficient Documentation to Support
erroneous assurances, but he did not argue, as he does now,            Sowell’s Jury Waiver and Ineffective Assistance
that his waiver was not knowing because he did not                     Claims When He Raised Them in State Post-
understand what he was giving up, due to the trial judge’s and         Conviction Proceedings
Sowell’s attorney’s failure to warn him adequately of the
dangers of his choice, and due to his own mental deficiencies.      The Warden’s final default argument fails because she did
Nevertheless, the district court considered these latter          not raise it below. The Warden contends that Sowell
grounds. The Warden contends that this was error, and             defaulted both of the claims relevant to this appeal by failing
argues that the court should have found these grounds             to satisfy Ohio’s requirement that a petitioner in a post-
procedurally defaulted. Consequently, the Warden argues,          conviction proceeding produce more than a self-serving
the issue-as-presently-framed is distinct from that presented     affidavit to rebut the presumption that a proceeding on the
to the state courts, and it is hence procedurally defaulted.      record was somehow invalid. See Ohio v. Kapper, 448
                                                                  N.E.2d 823, 826 (Ohio 1983) (“[A] petition for
                                                                  post-conviction relief is subject to dismissal without a hearing
No. 02-3441                           Sowell v. Bradshaw        15    16    Sowell v. Bradshaw                           No. 02-3441

when the record . . . indicates that the petitioner is not entitled   conduct a hearing on the claims that were the basis of the
to relief and that the petitioner failed to submit evidentiary        district court’s judgment. The district court held that the state
documents containing sufficient operative facts to                    court’s finding “is subject to review and an evidentiary
demonstrate that the guilty plea was coerced or induced by            hearing in this Court under 28 U.S.C. §§ 2254(d)(2) and
false promises.”). The Ohio courts rejected Sowell’s claim            (d)(3).” J.A. 426–27. The district court concluded that
for this reason. See J.A. at 318; Ohio v. Sowell, 598 N.E.2d          because Sowell was not attempting to present evidence that
136, 143 (Ohio Ct. App. 1991). The Sixth Circuit has                  was not presented, at least in some fashion, to the Ohio
recognized Ohio courts’ dismissal for failure to provide              courts, cause and prejudice was not required.
documentation as a sufficient basis for finding a procedural
default. See Lorraine v. Coyle, 291 F.3d 416, 426 (6th Cir.              The Warden challenges that decision by the district court,
2002) (finding that the failure to attach documentation can           arguing that Sowell needed to demonstrate cause and
result in a procedural default).                                      prejudice or a fundamental miscarriage of justice before the
                                                                      district court could hold an evidentiary hearing. However, in
   However, the Warden did not make this argument to the              Abdur’Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), we
district court. The Warden concedes that the failure to raise         explained that even though the cause and prejudice
the issue before the district court may mean that the argument        requirement had to be met for petitioner to be entitled to a
is forfeited. Procedural default is a defense “that the State is      hearing, the district court nonetheless has inherent authority
obligated to raise and preserv[e] if it is not to lose the right to   to hold an evidentiary hearing even if petitioner is not entitled
assert the defense thereafter.” Trest v. Cain, 522 U.S. 87, 89        to one. Abdur’Rahman, 226 F.3d at 706 (“Because the
(1997) (internal quotation marks omitted).                Further,    district court properly ordered an evidentiary hearing pursuant
procedural default is not a jurisdictional matter, and “[a] court     to its inherent authority to do so, the issue of whether
of appeals is not ‘required’ to raise the issue of procedural         Petitioner is entitled to an evidentiary hearing [via a showing
default sua sponte.” Id. Nonetheless, this court may consider         of cause and prejudice] is irrelevant and will not be
a newly-raised default argument, if it so wishes. See, e.g.,          addressed.”). It was therefore not error for the district court
Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000)              to exercise its inherent power to hold an evidentiary hearing,
(“While procedural default is not a jurisdictional bar to review      without undertaking a cause and prejudice analysis.
of such a claim, and the Government’s failure to raise the
default may operate as a forfeiture of its right to defend on         III. Knowing and Intelligent Waiver
that ground, we nonetheless may raise these issues sua
sponte.” (citations omitted)). In light of the resources that            Reaching now the merits, we conclude that Sowell has
have been expended by the district court and the serious              failed to present enough evidence to rebut the presumption of
consequences facing Sowell, and because the Warden did not            a knowing and intelligent jury waiver. We review de novo
make this argument to the district court, we exercise our             the largely legal question of whether a petitioner’s waiver of
discretion not to reach the documentation-default issue.              a jury trial was knowing, intelligent, and voluntary. Lott v.
                                                                      Coyle, 261 F.3d 594, 610 (6th Cir. 2001)
II. Expansion of the Record and Evidentiary Hearing
                                                                        To find a constitutional error, the district court merged the
  Notwithstanding the Warden’s additional argument, the               validity of the waiver with the question of ineffective
district court, under our precedent, had the authority to             assistance of counsel. The district court found that
No. 02-3441                          Sowell v. Bradshaw       17    18   Sowell v. Bradshaw                           No. 02-3441

  [s]ince the Constitution does not require an on-the-record          the court must be had, in addition to the express and
  colloquy, and because the validity of a jury waiver is to           intelligent consent of the defendant. And the duty of the
  be determined from the totality of the circumstances, the           trial court in that regard is not to be discharged as a mere
  conduct of a defendant’s attorney must also be                      matter of rote, but with sound and advised discretion,
  considered. In other words, counsel has a duty, along               with an eye to avoid unreasonable or undue departures
  with the trial court, to ensure that the defendant                  from that mode of trial or from any of the essential
  understands the nature of the right and the consequences            elements thereof, and with a caution increasing in degree
  of waiving the right. Counsel’s recommendation to                   as the offenses dealt with increase in gravity.
  waive trial by jury does not amount to constitutional
  ineffectiveness if the recommendation was reasonable              Patton v. United States, 281 U.S. 276, 312–13 (1930)
  trial strategy.                                                   (emphasis added). Federal Rule of Criminal Procedure 23(a)
                                                                    accordingly provides that cases in which a defendant is
Sowell v. Anderson, No. C-1-94-237, 2001 WL 1681142, at             entitled to a jury trial shall be so tried unless the defendant
*15 (S.D. Ohio Oct. 5, 2001); see also id. (“The duty to            waives a jury trial in writing with the approval of the court
ensure that a criminal defendant’s jury trial waiver is knowing     and the consent of the government. It is undisputed that
and intelligent rests primarily with the trial court, but is also   Sowell signed such a written waiver. See J.A. 730-32. As all
shared by counsel.”). The district court cited no legal             of the other formal aspects of a jury waiver were complied
precedent to support its commingling of the doctrines, and          with as well, the intelligent consent of Sowell is the sole
this court has found none. Therefore, we decline to follow the      component of a jury waiver that is at issue in the present case.
mixing approach, and instead consider each claim separately
on the merits.                                                        The district court in this case imposed requirements on the
                                                                    jury waiver procedures that are not constitutionally required.
  The only issue with regard to whether Sowell waived his           “Compliance with the requirements of [Federal Rule of
jury right is whether he “intelligently consented.” According       Criminal Procedure 23(a)] creates a presumption that the
to the Supreme Court, “the right to jury trial in serious           waiver is a voluntary, knowing and intelligent one.” United
criminal cases is a fundamental right and hence must be             States v. Cochran, 770 F.2d 850, 851 (9th Cir. 1985); see also
recognized by the States as part of their obligation to extend      United States v. Sammons, 918 F.2d 592, 597 (6th Cir. 1990).
due process of law to all persons within their jurisdiction.”       Although we will not presume waiver from a silent record, the
Duncan v. Louisiana, 391 U.S. 145, 154 (1968). Although             burden of demonstrating that a waiver of jury trial was not
under the common law, defendants were not allowed to waive          valid lies with the defendant who waived it. The Supreme
this right, the Supreme Court has held that defendants can do       Court has expressly held that:
so, under certain conditions:
                                                                      a determination of guilt by a court after waiver of jury
  Not only must the right of the accused to a trial by a              trial could not be set aside and a new trial ordered except
  constitutional jury be jealously preserved, but the                 upon a plain showing that such waiver was not freely and
  maintenance of the jury as a fact finding body in criminal          intelligently made. If the result of the adjudicatory
  cases is of such importance and has such a place in our             process is not to be set at naught, it is not asking too
  traditions, that, before any waiver can become effective,           much that the burden of showing essential unfairness be
  the consent of government counsel and the sanction of               sustained by him who claims such injustice and seeks to
No. 02-3441                         Sowell v. Bradshaw       19   20   Sowell v. Bradshaw                            No. 02-3441

  have the result set aside, and that it be sustained not as a    outlined therein are not constitutionally required. See
  matter of speculation but as a demonstrable reality.            Sammons, 918 F.2d at 597. Specifically, the Sammons court
                                                                  stated:
Adams v. United States ex rel. McCann, 317 U.S. 269, 281
(1942).                                                             The statement that this knowledge is sufficient is not, of
                                                                    course, equivalent to a statement that it is constitutionally
   This court in United States v. Martin, 704 F.2d 267 (6th         required. In fact, the Seventh Circuit has held that a
Cir. 1983), identified in dicta some specific aspects of a jury     defendant who “understood that the choice confronting
trial about which a defendant should have at least some             him was, on the one hand, to be judged by a group of
knowledge before waiving a jury trial. The court observed           people from the community, and on the other hand, to
that                                                                have his guilt or innocence determined by a judge” had
                                                                    knowingly and intelligently waived his right to trial by
  a defendant ignorant of the nature of the jury trial right        jury.
  cannot intelligently weigh the value of the safeguard. A
  defendant, therefore, should have both the mental ability       Id. (emphasis in original). The court went on to hold that
  and some knowledge of the jury trial right before he is         “[w]hile the district court failed to conduct the suggested
  allowed to waive it. A technical knowledge of the jury          colloquy in this action, the record does not disclose any
  trial right, however, is not what is required. A defendant      evidence that Sammons was so unaware of the rudimentary
  is sufficiently informed to make an intelligent waiver if       elements of trial by jury that his waiver cannot stand.” Id.
  he was aware that a jury is composed of 12 members of
  the community, he may participate in the selection of the         The district court erred in treating the dicta in Martin as
  jurors, the verdict of the jury must be unanimous, and          setting forth a statement of constitutional law. See Sowell,
  that a judge alone will decide guilt or innocence should        2001 WL 1681142, at *15. (“The Sixth Circuit has held that
  he waive his jury trial right. Knowledge of these               in order for a jury waiver to be knowing and intelligent as a
  essential attributes is generally sufficient to enable a        matter of constitutional law, the record must reflect at a bare
  defendant to make a knowing and intelligent decision.           minimum the following understandings on the part of the
                                                                  defendant: that the jury is composed of twelve members of
Martin, 704 F.2d at 273 (citations omitted). In Martin,           the community, that the defendant may participate in the
however, the court explicitly stated that there is no             selection of the twelve jurors, that any verdict rendered by the
constitutional requirement for the trial court to conduct a       jury must be unanimous, and that a judge alone will decide
colloquy with the defendant prior to a jury waiver. Id. at 274-   guilt or innocence if a jury trial is waived.” (emphasis
75.5                                                              added)). The district court added that “[b]oth Sammons and
                                                                  Martin require that a defendant be aware of and understand
  In Sammons, this court considered the Martin passage and        that any verdict returned by a jury must be unanimous.” Id.
expressly stated that the elements of a knowing jury waiver       Sammons does not support that proposition. Rather, the
                                                                  Sammons court merely quoted Martin’s “unanimous”
                                                                  requirement, and then stated that Martin was not necessarily
   5                                                              establishing constitutional requirements. See Sammons, 918
      W e nonetheless strongly recommended such a colloquy, and   F.2d at 597. Contrary to the district court’s decision, neither
continue to do so.
No. 02-3441                                Sowell v. Bradshaw              21   22     Sowell v. Bradshaw                                    No. 02-3441

case established a constitutional requirement that the                          The district court found the trial court’s colloquy first lacked
defendant understand that the verdict must be unanimous.                        an inquiry as to whether Sowell “understood that he had the
                                                                                right to participate in the selection of jurors.” Sowell, 2001
   In applying the law, as the district court saw it, to the facts,             WL 1681142, at *16. This inquiry is recommended by
the court found several deficiencies in Sowell’s waiver. The                    Martin. Martin, 704 F.2d at 273. However, as described
first alleged “deficiencies” relate to what was and, more                       above, neither Sammons nor Martin mandated that a colloquy
importantly, what was not contained in the colloquy between                     discussing the defendant’s understanding of his role in
the trial court and Sowell regarding his waiver of a jury trial.6               selecting a jury was a constitutional requirement for jury
                                                                                waiver. Martin, 704 F.2d at 274-75; Sammons, 918 F.2d at
                                                                                597. Consequently, the trial judge did not commit
    6                                                                           constitutional error by failing to include this question in the
        The colloquy included the following discussion:                         colloquy.
    THE C OURT: A ll rig ht, M r. Sow ell, I have been told by your
    attorne ys that you w ish to give up your right to trial b y jury in          The district court was also disturbed that the trial court
    this case, is that correct?                                                 failed to ask Sowell during the colloquy if he understood that
    SOW ELL: Yes, sir.
    THE COU RT: You discussed this at length with your attorneys?
    SOW ELL: Yes, sir.
    THE CO URT: And any remaining questions unanswered?                              SOW ELL: Yes, sir.
    SOW ELL: No , sir.                                                               THE COU RT: N ow do you understand that in the running of the
    THE COURT : All right now, do you understand that both the                       case I have some other things here I may not be required to tell
    Constitution of the United States and the Constitution of the                    you, but I will tell you so you understand it. That in a general
    State of Ohio gives [sic] you [an] absolute right to a trial by jury             running of the case the deciding of motions such as you have in
    if you wish it, do you understand that?                                          this case deciding of anything other than your guilt or innocence
    SOW ELL: Yes, sir.                                                               then two of the three judges can decid e that. That does not have
    THE CO UR T: A nd do you understand that a jury w ould consist                   to be unanim ous, do you understand that?
    of 12 people?                                                                    SOW ELL: Yes, sir.
    SOW ELL: Yes, sir.                                                               THE COU RT: And of course do you understand that, of course,
    TH E COU RT : Twelve of your peers, do you understand that?                      before the maximum penalty could be before – Okay, do you
    SOW ELL: Yes, sir.                                                               understand that the judges to sit with this Court, that is the other
    THE COURT: And you understand that before a jury could find                      two judges will be selected by the presiding Judge. I am not the
    you guilty of the charge against you or any other charge, they                   presiding Judge of the Common Pleas Court, but that presiding
    would have to agree unanim ously. T hat means that all 12 would                  Judge of the Common Pleas Court will decide who the other two
    have to agre e, you understand that?                                             judges will be?
    SOW ELL: Yes, sir.                                                               SOW ELL: Yes, sir.
    THE COU RT: Now if you are tried by a three-judge panel you                      THE COURT: Do you understand that your attorneys cannot
    understand that before those three judges could find you guilty                  control that nor can you?
    of anything, whether it is the crime you are charged with or                     SOW ELL: Yes, sir.
    some lesser included charge, all three of them would have to                     THE COURT: Any other right you can think of I shou ld discuss
    agree, they could no t convict you un less they unanimo usly                     with him.
    agree d, do you understand that?                                                 PROSECUTOR: I believe you pretty well covered it, Your
    SOW ELL: Yes, sir.                                                               Hono r.
    THE CO UR T: Bu t it would be three people, not 12 deciding
    your guilt or inno cence, do you understand that?                           J.A. at 728-30.
No. 02-3441                          Sowell v. Bradshaw       23    24       Sowell v. Bradshaw                                No. 02-3441

the jury would decide whether or not to recommend a death           (emphasis in original). However, as previously noted the
sentence and that such a decision by the jury must be               colloquy was not constitutionally deficient. Further, Ohio
unanimous. Sowell, 2001 WL 1681142, at *16-*17. The                 courts have held that it is necessary for a petitioner in a post-
district court also found the colloquy insufficient because the     conviction proceeding to produce more than a self-serving
trial court did not ask Sowell if anyone promised or induced        affidavit in order to rebut the presumption that a proceeding
him to waive his right to a jury trial or if he understood that     on the record was valid.7 See Kapper, 448 N.E.2d at 826.
a jury waiver would still leave him eligible a death sentence.      Thus, the Ohio courts’ decisions to look only at the colloquy
Id. Martin does not list these alleged deficiencies in its          and the written waiver was reasonable. See, e.g., J.A. at 318;
passage recounting aspects of a generally sufficient colloquy,      Ohio v. Sowell, 598 N.E.2d 136, 143 (Ohio Ct. App. 1991).
Martin, 704 F.2d at 273, and there is no basis for concluding
that it was constitutional error for the trial court not to           Further, the district court concluded from evidence
conduct inquiries on these specific issues.                         presented at the evidentiary hearing that information
                                                                    conveyed either directly or indirectly from defense counsel
   The district court found that the sum of all of these            caused Sowell to believe that he would not receive a capital
deficiencies “demonstrate[d] that petitioner’s waiver of his        sentence if he waived a jury. Sowell, 2001 WL 1681142, at
right to a jury trial was not knowingly made.” Sowell, 2001         *18. Pinales testified at the hearing as follows:
WL 1681142, at *17. However, the Martin court clearly held
that colloquies are not constitutionally required and that an         A. [Pinales] . . . I believed that I would not be involved
extremely perfunctory waiver with no colloquy was                        in a death penalty case if there was a three-judge
constitutionally adequate. Martin, 704 F.2d at 274-75.                   panel. I believe[d] that because that was my
Further, although capital cases do require a more extensive              impression of what Judge Crush said to me. Did I
colloquy than other types of cases, the simple fact that the             convey that to my client? Absolutely. Did I tell him
case is capital does not mandate an exhaustive colloquy. See             that this is etched in tablets that I brought down
Lott, 261 F.3d at 614–15 (finding—in a capital case—that a               from a mountain? Absolutely not.
colloquy much more perfunctory than that in the present case          Q. Do you recall if you would have stated it to him in
was constitutionally sufficient). Thus, the cumulative effect            terms of a promise?
of these alleged colloquy deficiencies does not require a             A. No, I would not have said it as a promise.
finding that Sowell’s waiver was not intelligent.
                                                                    J.A. at 562; see also id. at 566 (“I did not say to Mr. Sowell,
   Another deficiency that the district court found involved        [‘Y]ou waive a jury, and you will not be given the death
“the virtual absence of any state court findings on the issue of    penalty.[’] I believe from the tone of everything I said, that
whether petitioner’s jury trial waiver was knowing and
intelligent[,]” because “[t]he state courts refused to inquire as
to the validity of the waiver of trial by jury, beyond review of         7
                                                                          As previously noted in the procedural default discussion, this circuit
the in-court colloquy and the waiver form.” Sowell, 2001 WL         has recognized the failure to provide documentation in an Ohio court as
1681142, at *17-*18. The district court again noted in this         an adeq uate basis for dismissing on procedural de fault grounds. See, e.g.,
context that “the in-court waiver colloquy was deficient in         Lorraine, 291 F.3d at 426. If failure to provide d ocumentation is
that petitioner was never advised that both verdicts had to be      adequate to support proc edural default, it must also be adequate to support
                                                                    the decisio n of the state court not to expand the scop e of the evidence
unanimous before a death sentence could issue.” Id. at *17          reviewed to determine w hether a jury wa iver was intelligent.
No. 02-3441                         Sowell v. Bradshaw       25    26    Sowell v. Bradshaw                           No. 02-3441

was certainly the connotation, but that was not—I couldn’t         expert testimony. We cannot say that these findings are
swear that I said those specific words.”).                         clearly erroneous. The district court concluded that “it is
                                                                   clear that the petitioner exhibited comprehension deficits and
   The record reflects that Pinales formed a strong impression     that petitioner decidedly misapprehended that, if he waived
from the discussions with Judge Crush during the pre-trial         his right to a jury trial, he would not be sentenced to death.”
conferences in this case that Judge Crush would not impose         Sowell, 2001 WL 1681142, at *18. Even with limited
the death penalty. Pinales, assuming he had a sound strategy       cognitive skills and intelligence, however, the question still
that would spare Sowell’s life, advised Sowell that he should      turns on just what Sowell “misapprehended.” Even with
waive his right to a jury trial. Sowell thought it was best to     comprehension deficits and limited intelligence on the part of
trust his attorney, so he waived his right. Unfortunately for      Sowell, there is no basis for concluding that he thought that
Sowell, the three judge trial ended with a capital sentence. It    he was legally guaranteed not to be sentenced to death. The
might be significant whether Pinales led Sowell to believe,        record supports at most that Sowell understood his chances of
and whether Sowell in fact believed, that the panel of judges      avoiding the death penalty were much greater if he waived a
could not deliver the death penalty (because, for example, the     jury trial. Such “misapprehension,” even if exacerbated by
law allowed juries but not judge-panels to deliver the             comprehension deficits and limited intelligence, still amounts
penalty), or whether it was only an estimation or prediction       to the taking of a calculated litigation risk and thus still does
that they would not deliver it. Such a distinction indicates a     not amount to a lack of intelligent consent.
difference between a mistake of law (which if corrected could
have changed Sowell’s choice) and taking a risk to lessen the        The dicta in Martin did not establish the precise minimal
chance of a death sentence. Neither the district court nor the     constitutional requirements for an intelligent waiver. In
parties focused on this distinction. They appear, to varying       contrast, this court in Sammons approved of the statement by
degrees, to assume Sowell was taking a risk. This record           the Seventh Circuit that there is a knowing and intelligent
contains no evidence that Pinales told Sowell that the panel of    waiver where the defendant “‘understood that the choice
judges could not impose the death penalty, and Sowell has not      confronting him was, on the one hand, to be judged by a
presented evidence to support a finding that he believed that      group of people from the community, and on the other hand,
the panel could not impose the death penalty. To the extent        to have his guilt or innocence determined by a judge . . . .’”
that the district court implied that Sowell made a mistake of      Sammons, 918 F.2d at 597 (citing United States ex rel.
law (i.e., that Sowell believed that a three-judge panel could     Williams v. DeRobertis, 715 F.2d 1174, 1180 (7th Cir. 1983)).
not sentence him to death), it committed clear error. Sowell       The evidence only supports a conclusion that, despite his
took a litigation risk and lost; these facts alone do not create   intellectual limitations, Sowell understood this choice.
a constitutional violation.                                        Hence, Sowell’s jury waiver survives constitutional scrutiny,
                                                                   and a writ cannot issue on the ground that it did not.
  The district court’s conclusion that Sowell did not
“intelligently consent” to jury waiver was also based on the       IV. Ineffective Assistance of Counsel
court’s findings that Sowell had a “low level of cognitive
skills and comprehension” and less-than-average, “limited”            As Sowell made a constitutionally effective waiver of his
intelligence. The former finding was supported by the district     right to a jury trial, his only remaining claim is ineffective
court’s observations of Sowell during the evidentiary hearing      assistance of trial counsel. Sowell, however, has not
and testimony by Pinales; the latter finding was supported by      demonstrated that his counsel’s performance was
No. 02-3441                         Sowell v. Bradshaw       27    28    Sowell v. Bradshaw                           No. 02-3441

unreasonable. “A claim of ineffective assistance of counsel        615 (6th Cir. 2001); Cobb v. Perini, 832 F.2d 342, 347 (6th
presents a mixed question of law and fact; therefore we            Cir. 1987).
review both the state court and district court determinations
de novo. Our de novo review includes both the performance            Neither the Warden nor the district court cited the
and prejudice components of an ineffective assistance claim.”      Strickland two-part test, apparently assuming the ineffective
Coleman v. Mitchell, 268 F.3d 417, 445 (6th Cir. 2001)             assistance of counsel claim was intertwined with the jury
(citations omitted).                                               waiver claim. However, Sowell must demonstrate a
                                                                   Strickland violation to receive a writ for a violation of his
  Ineffective assistance of counsel claims are generally           Sixth Amendment rights because of the ineffectiveness of his
governed by Strickland v. Washington, 466 U.S. 668 (1984),         counsel.
in which the Supreme Court established a two-part inquiry:
                                                                     The first step of Strickland requires that Sowell
  First, the defendant must show that counsel’s                    demonstrate that Pinales’s performance was seriously
  performance was deficient. This requires showing that            deficient. That is, Sowell must overcome “a strong
  counsel made errors so serious that counsel was not              presumption that counsel’s conduct falls within the wide
  functioning as the “counsel” guaranteed the defendant by         range of reasonable professional assistance,” Strickland, 466
  the Sixth Amendment. Second, the defendant must show             U.S. at 689, and show that Pinales made errors so serious that
  that the deficient performance prejudiced the defense.           he was not functioning as the “counsel” guaranteed by the
  This requires showing that counsel’s errors were so              Sixth Amendment.
  serious as to deprive the defendant of a fair trial, a trial
  whose result is reliable. Unless a defendant makes both            Pinales, however, did a constitutionally sufficient job. At
  showings, it cannot be said that the conviction or death         the Ohio jury waiver hearing, Judge Crush asked Pinales and
  sentence resulted from a breakdown in the adversary              Sowell’s other attorney, “Counsel of course have discussed
  process that renders the result unreliable.                      this [waiver] with the defendant at length?” J.A. at 727–28.
                                                                   Pinales replied, “Absolutely, Your Honor,” and Sowell’s
Strickland, 466 U.S. at 687. In determining whether an             other attorney agreed. Id. at 728; see also id. at 731 (Sowell
attorney’s conduct was deficient, the Supreme Court stressed       answering “Yes” to Judge Crush’s question whether he had
that “the proper standard for attorney performance is that of      discussed the waiver with his attorneys). Sixteen years later,
reasonably effective assistance,” id., “viewed as of the time of   at the district court’s hearing, Pinales did not recall the
counsel’s conduct,” id. at 690, and considered “in light of all    specifics of his conversation with Sowell, and only recalled
the circumstances,” id. “Judicial scrutiny of counsel’s            that they had discussed waiving the jury. See J.A. at 527; see
performance must be highly deferential.” Id. at 689.               also id. at 529 (Pinales, when asked “whether you informed
“Because of the difficulties inherent in making the evaluation,    Mr. Sowell that his jury waiver was still a method to be
a court must indulge a strong presumption that counsel’s           convicted and sentenced to death,” answering, “I can’t recall
conduct falls within the wide range of reasonable professional     that specific. I probably said it, but I probably also said that,
assistance; that is, the defendant must overcome the               very strongly, that I believe that he would not be facing the
presumption that, under the circumstances, the challenged          death penalty if he waived a jury.”). Pinales did not recall
action ‘might be considered sound trial strategy.’” Id.            that Sowell had any difficulty in understanding the jury
(citation omitted); see also Miller v. Francis, 269 F.3d 609,      waiver issues at the time. Id. at 559. This evidence does not
No. 02-3441                           Sowell v. Bradshaw        29    30    Sowell v. Bradshaw                           No. 02-3441

show that Pinales’ performance was constitutionally deficient.        conclusion. Pinales on a number of occasions specifically
Further, the simple fact that Pinales mistakenly thought that         stated that he did not tell Sowell that he would be ineligible
Judge Crush would not impose death does not mean that                 for the death penalty if he waived his right to a jury. J.A. at
Pinales was acting unreasonably.                                      529 (Pinales admitted that he probably told Sowell that a
                                                                      death sentence was still an option if he waived a jury); id. at
   Furthermore, there is strong evidence that everything came         566 (“I did not say to Mr. Sowell, you waive a jury, and you
down to Pinales’s recommendation, and it did not matter how           will not be given the death penalty.”). Pinales explicitly
much Sowell may or may not have been informed of what he              stated that he read the jury waiver to Sowell. Id. at 531 (“I’m
was giving up and risking. Both Pinales and Sowell testified          sure I must have read [the jury waiver form] to [Sowell]”); id.
that Sowell trusted Pinales implicitly, and decided to waive          at 536 (“My recollection now is . . . I sat at the table, read it
solely because of Pinales’s recommendation. See J.A. at 527-          to him, showed him where to sign.”). Although Pinales might
28 (Pinales testifying that “Billy Joe totally relied on the          now, over sixteen years later, approach the situation
advice that I was giving. . . . He was like a lost puppy in the       differently, his actions on the record of this case, concerning
jail, and I think I became his only friend. So I certainly think      his advice to Sowell regarding the jury waiver, did not fall
he relied on what I said.”); id. at 558-59 (Pinales, when asked       below a minimal level of professional competency, and thus
whether he recalled Sowell’s response to the recommendation           did not constitute ineffective assistance of counsel.
to waive a jury, replying, “I can’t recall specifically . . . but I
can tell you his reaction to everything. It was almost                  The court is not required to address both components of
whatever I wanted to do. Clearly he put his faith in me. And          Strickland if one component fails. Strickland, 466 U.S. at
fate.”); id. at 573 (Sowell, when asked why he had waived his         697. Thus, as Sowell did not demonstrate that his counsel
jury trial, answering, “Because I had faith and conviction and        performed below an objectively reasonable level, the court
belief in my attorney”); id. at 574 (Sowell, when asked               need not discuss the prejudice component.
whether in deciding to waive his right to a jury he considered
anything other than Pinales’s recommendation, answering,                Because Sowell has failed to demonstrate that the state
“No. No.”). Everything appears to come down to whether                court proceedings denied him either his right to trial by jury
Pinales had a reasonable basis for thinking that Judge Crush          or his right to effective assistance of counsel, he has failed to
would not impose a death sentence. The district court did not         demonstrate that those proceedings were fundamentally
consider this issue, and the record does not show that Pinales        unfair. We therefore REVERSE the judgment of the district
had no reasonable basis for so thinking.                              court granting the writ of habeas corpus.

   Pinales recommended that Sowell take a calculated risk,
which he did. There was no evidence that Pinales guaranteed
Sowell a result, or misstated the law. The district court found
that Pinales advised Sowell that “he would be spared the
death penalty if he waived jury trial.” Sowell, 2001 WL
1681142, at *18. While this statement can be read in different
ways, if the statement by the district court amounted to a
finding of fact that Pinales guaranteed that Sowell would not
be sentenced to death, the record does not support such a
No. 02-3441                          Sowell v. Bradshaw       31    32    Sowell v. Bradshaw                           No. 02-3441

                      _______________                               were fundamentally unfair as a result of a violation of the
                                                                    Constitution or laws or treaties of the United States.” Powell
                         DISSENT                                    v. Collins, 332 F.3d 376, 388 (6th Cir. 2003). The failure of
                      _______________                               the state trial court to ensure that Sowell knowingly and
                                                                    intelligently waived his right to a jury trial in accordance with
  KAREN NELSON MOORE, Circuit Judge, dissenting. I                  the constitutional guarantees afforded to criminal defendants
respectfully dissent because Billy Joe Sowell’s (“Sowell”)          rendered the state proceedings fundamentally unfair.
waiver of his constitutional right to a jury trial was neither
knowing nor intelligent. What the majority labels as a                 The primacy of the jury trial represents one of the pillars
calculated risk undertaken by Sowell, I consider to be the          upon which our criminal justice system rests. See Duncan v.
height of uncertainty because Sowell, an abnormally                 Louisiana, 391 U.S. 145, 149 (1968) (“[T]rial by jury in
unintelligent individual, was not aware that he could still         criminal cases is fundamental to the American scheme of
receive the death penalty if he waived his right to a jury trial.   justice . . . .”); U.S. CONST . art. III, § 2 (“The Trial of all
In light of the pre-AEDPA standards of review that we must          Crimes . . . shall be by Jury. . . .”); U.S. CONST . amend. VI
apply, I would affirm the district court’s grant of a conditional   (“In all criminal prosecutions, the accused shall enjoy the
writ of habeas corpus because a jury trial waiver is not            right to . . . an impartial jury. . . .”). “Trial by jury is the
knowing and intelligent when a defendant is not aware that he       normal and, with occasional exceptions, the preferable mode
or she could be sentenced to death.                                 of disposing of issues of fact in criminal cases above the
                                                                    grade of petty offenses.” Patton v. United States, 281 U.S.
   Risk is not synonymous with uncertainty. Whereas risk can        276, 312 (1930). Even though “the right of the accused to a
be managed, uncertainty is immeasurable and wild. The               trial by a constitutional jury [must] be jealously preserved,”
calculation of risk centers upon an estimation of potential loss    id., a defendant can waive this core right, but only when
versus potential benefit. Accordingly, risk cannot be               certain safeguards have been satisfied. “[B]efore any waiver
managed without some knowledge of the possible downside.            can become effective . . . the express and intelligent consent
Just as even the most risk-loving sports gambler or venture         of the defendant” must be obtained. Id. “[T]he duty of the
capitalist would not place a bet or make an investment              trial court in that regard is not to be discharged as a mere
without knowing the size of the financial stake being risked        matter of rote, but with sound and advised discretion, with an
(the amount that could be lost), a criminal defendant cannot        eye to avoid unreasonable or undue departures from that
fully understand the ramifications of waiving his or her right      mode of trial or from any of the essential elements thereof,
to a jury trial without knowing the potential loss that could       and with a caution increasing in degree as the offenses dealt
result. Such a concept resonates with even more intensity           with increase in gravity.” Id. at 312-13 (emphasis added).
when a defendant has limited cognitive abilities.
                                                                      The validity of such a waiver turns on the particularized
  The filing of Sowell’s habeas petition before the enactment       facts of a specific case. “[W]hether or not there is an
of AEDPA impacts our review of the state court proceedings.         intelligent, competent, self-protecting waiver of jury trial by
We review de novo a state court’s “[d]eterminations of law,         an accused must depend upon the unique circumstances of
or determinations involving mixed questions of fact and law.”       each case.” Adams v. United States ex rel. McCann, 317 U.S.
Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999). A writ of        269, 278 (1943). Our analysis of the waiver’s intelligence
habeas corpus must be issued “if the state court proceedings        cannot ignore two circumstances pertinent to this appeal: the
No. 02-3441                         Sowell v. Bradshaw      33    34    Sowell v. Bradshaw                            No. 02-3441

gravity of the potential sentence and Sowell’s mental state.      community, he may participate in the selection of the jurors,
“What is at stake for an accused facing death or imprisonment     the verdict of the jury must be unanimous, and that a judge
demands the utmost solicitude of which courts are capable in      alone will decide guilt or innocence should he waive his jury
canvassing the matter with the accused to make sure he has a      trial right.” Martin, 704 F.2d at 274-75. Similarly, we have
full understanding of the consequences of his actions.”           held that a written waiver is not constitutionally required.
Boykin v. Alabama, 395 U.S. 238, 243-44 (1969) (quotation         Fitzgerald v. Withrow, 292 F.3d 500, 504 (6th Cir. 2002).
omitted). “[B]ecause there is a qualitative difference between
death and any other permissible form of punishment, there is         Nevertheless, there must be some indication that a
a corresponding difference in the need for reliability . . . .”   defendant is intelligently and knowingly waiving the right to
Zant v. Stephens, 462 U.S. 862, 884 (1983). This need for         a jury trial, which I believe includes a showing that the
reliability is even more pressing when a death-penalty eligible   defendant understands the maximum punishment available in
defendant has demonstrated mental problems. “[T]he purpose        the event of a finding of guilt. There are different reasons
of the ‘knowing and voluntary’ inquiry . . . is to determine      why a defendant would forego trying his or her case in front
whether the defendant actually does understand the                of a jury, one of which is a belief that a defendant may be less
significance and consequences of a particular decision . . . .”   likely to receive a certain punishment, particularly the death
Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993).                  penalty, if he or she submits to a bench trial. In such a
                                                                  situation, a decision to waive the right to a jury trial cannot be
   In evaluating the constitutionality of various processes for   considered intelligent if the defendant is not aware of
assessing the intelligence of a waiver, we have not mandated      sentence that could result.
that a state trial court conduct a defined colloquy or even
obtain a written waiver, but in order for a waiver to be            Here, neither the written form nor the oral colloquy
constitutionally sound, the trial court must be convinced that    apprised Sowell that the death penalty would still be available
the waiver is knowing and intelligent. In the context of a        upon waiver of the right to a jury trial. The written waiver
direct federal appeal, we have stated that a waiver is knowing    did not discuss the death penalty. The oral colloquy similarly
and intelligent only if the defendant has “both the mental        lacked any mention of punishment, save for an oblique
ability and some knowledge of the jury trial right before he is   reference to the “maximum penalty” in the midst of a
allowed to waive it” so as to allow the defendant to              convoluted and unfinished half question/half thought that
“intelligently weigh the value of the safeguard.” United          would be confusing to many trained lawyers and judges, as
States v. Martin, 704 F.2d 267, 273 (6th Cir. 1983). We have      well as most criminal defendants. See Joint Appendix
“implore[d] district courts to personally inform each             (“J.A.”) at 730 (Trial Tr.) (“And of course do you understand
defendant of the benefits and burdens of jury trials on the       that, of course, before the maximum penalty could be before
record prior to accepting a proffered waiver,” id. at 274, but    — Okay, do you understand that the judges to sit with this
we have stopped short of making mandatory such a colloquy.        Court, that is the other two judges will be selected by the
See United States v. Sammons, 918 F.2d 592, 597 (1990)            presiding Judge, I am not the presiding Judge of the Common
(declining to impose a colloquy requirement); Spytma v.           Pleas Court, but that the presiding Judge of the Common
Howes, 313 F.3d 363, 370 (6th Cir. 2002) (applying Martin         Pleas Court will decide who the other two judges will be?”).
and Sammons in the habeas context). In Martin, we                 The state trial court never ascertained if Sowell understood
suggested that, “[a]t a minimum, a defendant should be            that the three-judge panel had the ability to sentence him to
informed that a jury is composed of 12 members of the             death nor did it mention the penalty stage of the proceeding.
No. 02-3441                               Sowell v. Bradshaw          35     36       Sowell v. Bradshaw                              No. 02-3441

   The majority places great stock in the distinction between                problems,2 proceeded to ask him rote questions about several
Sowell believing that a panel of judges could not deliver the                structural aspects of a jury trial, but completely failed to
death penalty and Sowell believing that a panel would not                    mention the potential punishment that Sowell faced. Given
deliver it. Op. at 24. While this is a narrow legal distinction              that “the right of the accused to a trial by a constitutional jury
that Sowell’s attorney perhaps understood, I cannot believe                  [must] be jealously preserved,” Patton, 281 U.S. at 312, and
that Sowell, given his mental infirmities, distinguished                     mindful of the trial court’s duty to ensure that a defendant is
between the two, particularly when his attorney did not make                 intelligently waiving the right to a jury trial — a duty that is
clear the difference and when the trial court did nothing to                 exercised “with a caution increasing in degree as the offenses
explain that Sowell could still receive the death penalty if he              dealt with increase in gravity,” id. at 312-13 — I cannot agree
appeared before the three-judge panel. Sowell clearly                        that Sowell intelligently waived his rights, because he did not
believed that he would not receive the death penalty if he                   understand that he would still be eligible for the death
waived his jury right: whether he believed that the law                      penalty.
prevented the judges from sentencing him to death or that the
judges would not sentence him to death is immaterial, as                       I respectfully dissent.
either belief belies the knowing and intelligent nature of his
jury waiver.
   The reality that Sowell was an individual of abnormally
low levels of intelligence and powers of comprehension
cannot be shunted aside. See Lott v. Coyle, 261 F.3d 594, 611
n.8 (6th Cir. 2001) (noting that “we do not take lightly any
suggestion that [the defendant] lacked the mental ability to
understand the rights he was waiving,” but ruling that the
defendant had not sufficiently demonstrated that he suffered
from some limitation of his mental abilities). The district
court found that Sowell had only an eighth grade education,
suffered from organic brain damage, and had an intelligence
level in the bottom 2% of the population.1 The defendant’s
expert testified that the “the likelihood that Mr. Sowell
genuinely understood, intellectually and intelligently
comprehended what was being said to him, is minimal.” J.A.
at 605 (Gelbort Test.). The state trial court knew of Sowell’s

    1                                                                             2
      This factual finding, along with all the other factual findings made         Two of the mental health specialists (Drs. William Walters and
by the district court, was not clearly erroneous. Based upon a review of     Emmett Coop er) who examined Sowell prior to the jury waiver colloquy
the evidence presented during the evidentiary hearing, I am not left with    in order to assess his co mpe tency to stand trial concluded that Sowell
the “firm and definite” conclusion that the district court erred.            could stand trial, but that he had an extremely low IQ , an inab ility to
Furthermore, all of the testimony relating to Sowell’s mental capabilities   comprehend complex concepts, and diminished intellectual capacity.
was unrebutted by the State.                                                 Joint Appendix at 494 (D ist. Ct. Op.).
