        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206              2     Stumpf v. Mitchell                           No. 01-3613
     ELECTRONIC CITATION: 2004 FED App. 0124P (6th Cir.)
                 File Name: 04a0124p.06                      OF THE ATTORNEY GENERAL, Columbus, Ohio, for
                                                             Appellee.
UNITED STATES COURT OF APPEALS                                 DAUGHTREY, J., delivered the opinion of the court, in
                                                             which MOORE, J., joined. BOGGS, C. J. (pp. 44-52),
               FOR THE SIXTH CIRCUIT                         delivered a separate dissenting opinion.
                 _________________
                                                                                 _________________
 JOHN DAVID STUMPF ,              X
                                                                                     OPINION
          Petitioner-Appellant, -                                                _________________
                                   -
                                   -  No. 01-3613
           v.                                                  MARTHA CRAIG DAUGHTREY, Circuit Judge. The
                                   -
                                    >                        petitioner, John David Stumpf, is a state prisoner incarcerated
                                   ,                         on Ohio’s death row. He appeals the district court’s dismissal
 BETTY MITCHELL , Warden,          -                         of his habeas corpus petition, filed pursuant to 28 U.S.C.
         Respondent-Appellee. -                              § 2254, in which he challenged his 1984 guilty plea and death
                                  N                          sentence for one count of aggravated murder, with the capital
      Appeal from the United States District Court           specification that the murder was committed to escape
     for the Southern District of Ohio at Columbus.          detection, apprehension, trial, and punishment for other
    No. 96-00668—George C. Smith, District Judge.            offenses, including aggravated robbery and attempted
                                                             aggravated murder. Specifically, Stumpf alleges (1) that his
               Argued: December 11, 2002                     guilty plea was involuntary and unknowing; (2) that his due
                                                             process rights were violated by the state’s use of inconsistent
           Decided and Filed: April 28, 2004                 theories to secure convictions against both Stumpf and his
                                                             accomplice, Clyde Wesley; (3) that he was deprived of
  Before: BOGGS, Chief Judge; and DAUGHTREY and              effective assistance of counsel at sentencing; and (4) that the
              MOORE, Circuit Judges.                         Ohio death penalty statute is unconstitutional on its face and
                                                             as applied to him.
                   _________________
                                                                Prior to entering a guilty plea, Stumpf had waived his right
                        COUNSEL                              to a trial by jury and elected to have his case heard by a three-
                                                             judge panel. Under Ohio law, when a defendant pleads guilty
ARGUED: Alan M. Freedman, MIDWEST CENTER FOR                 to aggravated murder, the court must hold an evidentiary
JUSTICE, Chicago, Illinois, for Appellant. Carol Ann         hearing to establish a factual basis for the plea. The three-
Ellensohn, OFFICE OF THE ATTORNEY GENERAL,                   judge panel held such a hearing in this case and found that
Columbus, Ohio, for Appellee. ON BRIEF: Alan M.              there was a factual basis for Stumpf’s plea, that he was guilty
Freedman, Carol Heis, MIDWEST CENTER FOR JUSTICE,            of aggravated murder with the capital specification and,
Chicago, Illinois, for Appellant. Stephen E. Maher, OFFICE

                             1
No. 01-3613                          Stumpf v. Mitchell     3    4        Stumpf v. Mitchell                         No. 01-3613

ultimately, that there was insufficient mitigating evidence to   review the district court’s determination of the facts only for
spare Stumpf from imposition of the death penalty.               clear error, we adopt the district court’s characterization of the
                                                                 facts, as determined by the state courts, as follows:
   Under Ohio law at the time of Stumpf’s conviction, the
aggravated murder statute required that “specific intent” be         On May 14, 1984, Stumpf, Clyde Daniel Wesley, and
proved to convict someone of that crime. At the evidentiary          Norman Leroy Edmonds, after visiting a bar in
hearing to establish a factual basis for Stumpf’s plea, Stumpf       Washington, Pennsylvania, got on Interstate 70 and
and his attorneys argued that he did not shoot the victim and,       headed west toward Ohio. By sundown, they had
indeed, that he was not present when the victim was shot.            reached Guernsey County. They stopped their car along
The state argued in response that Stumpf was the shooter, and        I-70 and, leaving Edmonds in the car, Stumpf and
the three-judge panel that heard the case adopted the state’s        Wesley walked to a nearby house under the pretense of
theory, finding that Stumpf was the actual shooter. At a later       needing to make a phone call. The house they chose was
trial of Stumpf’s accomplice Wesley, however, the state              owned and occupied by Norman and Mary Jane Stout.
presented the testimony of a jailhouse informant to establish        Stout admitted Stumpf and Wesley into his home and
that Wesley was the shooter. When Stumpf sought to                   allowed them to use the phone. When they had
withdraw his guilty plea on the basis of Wesley’s conviction,        completed the call, both Stumpf and Wesley produced
the state opposed his motion, arguing that the informant’s           pistols and announced a robbery.1 Stumpf held the
testimony was unreliable.                                            Stouts at gunpoint in a back bedroom while Wesley
                                                                     searched the house for items to steal.
   We conclude that the district court should have granted
relief to Stumpf on either or both of two alternative grounds:          At some point, Stout moved toward Stumpf, and
first, that his guilty plea was unknowing and involuntary            Stumpf shot him between the eyes with his pistol. The
because he was manifestly not aware that specific intent was         shot was not fatal, and Stout subsequently pushed
an element of the crime to which he pleaded guilty and,              Stumpf into the next room. During this altercation, Stout
second, that Stumpf’s due process rights were violated by the        was struck on the head with a pistol and shot in the head
state’s deliberate action in securing convictions of both            a second time. These actions were enough to render him
Stumpf and Wesley for the same crime, using inconsistent             semi-conscious but not to kill him. While lying on the
theories. Because we are granting relief on these two                floor in the other room, Stout heard four gunshots. There
grounds, we do not reach Stumpf’s challenge to the                   is no dispute that Mary Jane Stout was shot and killed
effectiveness of counsel’s representation at sentencing or to        during the course of this robbery, although there is a
the constitutionality of the Ohio death penalty statute.             dispute as to whether Stumpf or Wesley fired the fatal
                                                                     shots. After Mrs. Stout was killed, Stumpf and Wesley
  I. PROCEDURAL AND FACTUAL BACKGROUND                               stole the Stout’s car and fled. Stumpf was arrested
                                                                     several days later, and after initially denying any
A. The District Court’s Factual Findings
  Most of the underlying facts are undisputed in this case and
do not affect the legal determinations necessary to the               1
resolution of the appeal. For that reason, and because we              W esley and Stumpf had carried Edmonds’s chrome R aven and
                                                                 W esley’s black .25 caliber pistol with them into the ho use.
No. 01-3613                          Stumpf v. Mitchell       5   6     Stumpf v. Mitchell                           No. 01-3613

  knowledge about these crimes and then being told that           after he and Wesley had left the Stout residence. The black
  Stout had survived, he confessed to being involved.             .25 caliber pistol was recovered by the police after the men
                                                                  sold it, along with one of Stout’s guns, to an individual in
    At the time the trial court proceedings occurred,             Washington, Pennsylvania. Ronald Dye, a ballistics expert
  Wesley had not yet been extradited from Texas.                  from the Ohio Bureau of Criminal Identification and
  However, subsequent to Stumpf’s having pleaded guilty           Investigation, a division of the Ohio Attorney General’s
  and having been sentenced to death, Wesley was                  office, testified at Stumpf’s factual basis hearing as to the
  convicted of aggravated murder by a jury and received a         forensic findings regarding bullets and cartridge cases
  sentence of life imprisonment without the possibility of        recovered from the murder scene. Dye testified that there
  parole for 20 years. The State introduced evidence at           were eight spent cartridges found at the scene, that seven of
  Wesley’s trial that Wesley and not Stumpf fired the shots       them had been fired by one gun, and one was fired by a
  that killed Mrs. Stout. Edmonds was not charged in the          different gun. Dye also said that the black pistol, which had
  Stout murder and robbery, but was charged for other             been recovered by the police, fired one bullet, while the other
  offenses committed during this crime spree, and he              seven bullets were all fired by the same gun. That gun could
  agreed to and did testify against both Stumpf and Wesley        have been the chrome Raven, or one of several other types of
  concerning the murder of Mary Jane Stout.                       guns.
Stumpf v. Anderson, No. C-1-96-668 (S.D. Ohio Nov. 9,               At Stumpf’s plea proceeding, the prosecutor argued that the
1999).                                                            ballistics evidence supported the conclusion that Stumpf had
                                                                  shot Mrs. Stout, since she was apparently shot with the same
B. Additional Facts Regarding Ballistics Evidence                 weapon used against her husband, saying, “There’s ample
                                                                  evidence to conclude that this defendant fired all shots that hit
   Of the two bullets that struck Stout, only pieces of each      anybody, because the same gun fired all of those shots.”
were recovered. Part of the bullet that struck him between the    However, during Wesley’s trial, the same prosecutor put
eyes was recovered during surgery, while a second fragment        Eastman, Wesley’s cellmate, on the witness stand, to repeat
was found in the second bedroom. A portion of the bullet that     Wesley’s confession to him. According to Eastman, Wesley
struck Stout in the top of the head was recovered during          told him that after Stumpf had shot Stout in the face, he
surgery, but part of it had to be left in place. Another bullet   dropped the chrome Raven and ran, at which point Wesley
was recovered from the mattress of the second bedroom.            picked up the pistol and shot Mrs. Stout. This version of the
                                                                  crime was also supported by the ballistics evidence that the
  Stout’s wife was shot four times in the first bedroom. She      black pistol had a tendency to jam after firing just one round,
died from three gunshots to the left side of her head. The        which may have led Wesley to discard it after shooting it only
fourth bullet went through her left wrist and struck her chest    once.
without penetrating the skin of her chest. A fifth bullet was
recovered from the wall of that bedroom, above the headboard      C. The Guilty Plea
of the bed.
                                                                    Stumpf and Wesley could not be tried together because
  The chrome Raven was never recovered by the police, and         Wesley contested his extradition from Texas, where he had
Stumpf admitted that he had thrown it out of the car window       been apprehended. As a result, while Wesley was still
No. 01-3613                          Stumpf v. Mitchell      7    8     Stumpf v. Mitchell                           No. 01-3613

detained in Texas, Stumpf pleaded guilty to the aggravated        members and a few former employers and teachers – and of
murder of Mary Jane Stout, in violation of Ohio Rev. Code         an unsworn statement by Stumpf himself. Defense counsel
§ 2903.01(B), and to the capital specification under Ohio Rev.    presented no expert witnesses, beyond a parole officer and a
Code § 2929.04(A)(3) that the murder was committed for the        court clerk who testified as to Stumpf’s lack of a significant
purpose of escaping detection, apprehension, trial or             criminal history. The general defense strategy was to show
punishment for the offenses of the aggravated robbery of the      that Stumpf had a generally good nature, lacked a violent
Stouts. He also pleaded guilty to the attempted aggravated        temper, had a fairly steady work history but a limited
murder of Norman Stout and to a firearms specification for        education, had a difficult home environment, and was
each count. Subsequent to the entry of his plea, the              respectful towards women. Stumpf’s unsworn statement
prosecutor notified the trial judge that a plea agreement had     recounted his version of the crime and emphasized that
been reached. Stumpf was questioned about the agreement at        Wesley, and not Stumpf, had shot Mary Jane Stout.
some length, as detailed below.
                                                                    Following the hearing, the three-judge panel sentenced
D. The Evidentiary Hearing                                        Stumpf to death, finding that he had established only two
                                                                  mitigating factors: his age (23) and his lack of a significant
  Under Ohio law, the trial court must conduct an evidentiary     criminal background.
hearing in all aggravated murder cases involving guilty pleas,
to determine whether there is a factual basis for the plea.       F. Appellate Procedural History
Following Stumpf’s entry of a waiver to have a jury hear the
evidence, the hearing commenced before a three-judge panel.          After Stumpf’s conviction, and while his direct appeal was
                                                                  pending, Clyde Wesley was also convicted, by a jury, of
   During the factual basis hearing, the prosecution argued       Mary Jane Stout’s murder. As a result, Stumpf filed a motion
that Stumpf had shot Mrs. Stout, while the defense argued         for leave to withdraw his guilty plea or, in the alternative, to
that Mrs. Stout was shot by Wesley, not by Stumpf. The            have the trial court set aside his death sentence and grant him
three-judge panel found Stumpf “guilty beyond a reasonable        a new sentencing hearing. The motion was summarily denied
doubt” of count one of the indictment (aggravated murder of       by two of the three judges who had heard his case at the trial
Mary Jane Sout), along with specification one (that she was       level (the third judge had died in the interim), and the Ohio
killed to escape detection for the crimes of aggravated           Supreme Court affirmed the order at the same time it affirmed
robbery and attempted aggravated murder) and specification        Stumpf’s conviction on direct appeal.
four (firearm), and guilty of count two of the indictment
(attempted aggravated murder of Norman Stout), with its              Stumpf then filed a petition for post-conviction relief in
firearm specification.                                            state court, raising challenges to the validity of his jury trial
                                                                  waiver and the effectiveness of trial counsel’s representation,
E. The Mitigation Hearing                                         particularly with regard to counsel’s advice to Stumpf that he
                                                                  would not receive the death penalty if he pleaded guilty. In
  The mitigation hearing was held one day after the               the petition, Stumpf requested an evidentiary hearing and
conclusion of the evidentiary hearing, lasted less than two       submitted multiple affidavits in support of his claims. The
days, and consisted of the presentation of 15 witnesses for the   trial court dismissed the petition without an evidentiary
defense – primarily some of Stumpf’s friends and family           hearing, and this decision was affirmed by the Ohio Court of
No. 01-3613                            Stumpf v. Mitchell      9    10   Stumpf v. Mitchell                          No. 01-3613

Appeals. The Ohio Supreme Court dismissed the appeal, see           the trial court failed to vacate his sentence or allow him to
State v. Stumpf, 560 Ohio St. 3d 712(1990), and the United          withdraw his plea based on newly discovered evidence; and
States Supreme Court subsequently denied certiorari. See            (5) whether Stumpf received the ineffective assistance of
Stumpf v. Ohio, 502 U.S. 956 (1991).                                appellate counsel. Before us, Stumpf has pressed the first
                                                                    four claims but has abandoned the claim that appellate
  Stumpf next filed a petition for a writ of habeas corpus in       counsel was ineffective.
federal court, alleging as grounds for relief that the Ohio
Death Penalty statute is unconstitutional, both as written and                    II. STANDARD OF REVIEW
as applied to Stumpf; that his guilty plea was not knowing
and intelligent; that his waiver of the right to a jury trial was     Because Stumpf’s federal habeas petition was filed in
invalid; that he received ineffective assistance of counsel at      November 1995, the amendments to 28 U.S.C.§ 2254
the penalty phase; that he was not permitted to be present at       contained in the Antiterrorism and Effective Death Penalty
his motion for a new trial; that the trial court improperly         Act of 1996 (AEDPA) do not apply to this case. See Lindh v.
considered non-statutory aggravating circumstances and              Murphy, 521 U.S. 320, 336)(1997) (finding that AEDPA
ignored substantial mitigating evidence when deciding his           changes do not apply to cases pending at the time of
sentence; that the trial court erred in denying his motion to       AEDPA’s enactment on April 24, 1996). Stumpf’s claims,
vacate his sentence or withdraw his guilty plea based on            therefore, must be evaluated under § 2254(d) as it existed
newly discovered evidence; that consideration of post-              prior to the enactment of AEDPA.
sentence proceedings by less than the entire three-judge panel
violated his due process rights; and that the trial court erred       Accordingly, we review the district court’s disposition of
by failing to follow an Ohio statutory requirement that the         a petition for writ of habeas corpus de novo, although the
court produce a meaningful written analysis of the mitigation       district court’s factual findings are reviewed only for clear
evidence as a basis for imposing a death sentence.                  error. McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir.
                                                                    1996). We also defer to the state court’s factual findings,
   The district court issued two opinion and orders. The first      which may be rebutted only by “clear and convincing
found that several of petitioner’s claims had been                  evidence.” Id. However, this deference only applies to
procedurally defaulted, see Stumpf v. Anderson, No. C-1-96-         “basic, primary facts” and not to mixed question of law and
668 (S.D. Ohio Nov. 9, 1999); the second denied relief on the       fact, which are subject to de novo review. Id.
remaining claims, see Stumpf v. Anderson, No. C-1-96-668
(S.D. Ohio Feb. 7, 2001). However, the district court did                                 III. ANALYSIS
grant a certificate of appealability on the following five
issues: (1) whether the statutory provisions governing Ohio’s       A. The Validity of the Petitioner’s Guilty Plea
capital punishment scheme violate the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States                        The Supreme Court has held, in Boykin v. Alabama, 395
Constitution, either on their face or as applied to Stumpf;         U.S. 238 (1969), that when a defendant enters a guilty plea,
(2) whether Stumpf’s guilty plea was knowing, intelligent and       the state bears the burden of showing that the plea was
voluntary; (3) whether Stumpf received the ineffective              voluntary, intelligent and knowing. Determining whether a
assistance of counsel at the penalty phase of his trial;            plea is voluntary, intelligent and knowing requires an analysis
(4) whether Stumpf’s due process rights were violated when          of the totality of the circumstances. Garcia v. Johnson, 991
No. 01-3613                           Stumpf v. Mitchell     11    12       Stumpf v. Mitchell                             No. 01-3613

F.2d 324, 326 (6th Cir. 1993). When a defendant brings a           guilty. Indeed, defense counsel’s representations to the court
federal habeas petition challenging his plea, the state            either betray their own ignorance of the intent element of
generally satisfies this burden by producing a transcript of the   aggravated murder, or represent a woefully inadequate
plea proceeding. Garcia, 991 F.2d 324, 326. A state court          understanding of the meaning of a guilty plea. Finally, the
finding that the plea was proper is accorded a presumption of      plea colloquy itself, along with Stumpf’s statements to the
correctness, unless the transcript of the plea proceeding is       court through all stages of the proceedings, demonstrates
inadequate to demonstrate that the plea was voluntary,             Stumpf’s unwillingness to admit to intent.
intelligent and knowing. Garcia at 326-27; Dunn v. Simmons,
877 F.2d 1275, 1277 (6th Cir. 1989), overruled on other              At the time of Stumpf’s crime and subsequent conviction,
grounds by Parke v. Raley, 506 U.S. 20 (1992).                     Ohio’s aggravated murder statute specified that specific intent
                                                                   was a necessary element of aggravated murder. The statute
  The proper standard of review in this case, then, turns on       read as follows:
whether the record of state court proceedings surrounding
Stumpf’s guilty plea “leav[es] doubt as to whether the plea          § 2903.01 Aggravated murder.
was in fact intelligent and voluntary.” Dunn v. Simmons, 877
F.2d at 1277 (citing Roddy v. Black, 516 F.2d 1380, 1384 (6th        (A) No person shall purposely, and with prior
Cir. 1975)). If the record does leave doubt as to whether the        calculation and design, cause the death of another.
plea was voluntary, intelligent and knowing, and the
defendant argues that it was not, the State bears the burden of      (B) No person shall purposely cause the death of another
proving the contrary. Id. (citing Boykin v. Alabama, 395 U.S.        while fleeing immediately after committing or attempting
238, 243 (1969).                                                     to commit kidnapping[sic], rape, aggravated arson or
                                                                     arson, aggravated robbery or robbery, aggravated
  Although Stumpf does not contend explicitly that his guilty        burglary or burglary, or escape.
plea was invalid because he was not aware that specific intent
was an element of the crime to which he pleaded guilty, this         (C) Whoever violates this section is guilty of aggravated
argument is inherent in the fact that he continually professed       murder, and shall be punished as provided in section
his innocence of committing the actual shooting both during          2929.02 of the Revised Code.
and after the guilty plea. The record reflects, for example, his
expectation that he would be given an opportunity to present       Ohio Rev. Code § 2903.01 (1984)(amended 1996).2
evidence to the three-judge panel relevant to his conduct.”           Stumpf was convicted under § 2903.01(B), which, although
Moreover, the record indicates that the explicit statutory         it specifies that the murder must be caused “purposely,” does
requirement of intent was never explained to Stumpf during         not specifically require intent. However, subsection (D) of
the plea colloquy. Furthermore, although his attorneys             the same statute clarifies that intent is indeed a necessary
represented to the court that they had explained to Stumpf the     element of aggravated murder:
elements of the crime, their own arguments to the court
during the plea colloquy and the evidentiary hearing to
establish a factual basis for the plea refute the typical               2
presumption that defense counsel have fully and adequately              Ohio Rev. Code § 2903.01 was amended on July 1, 1996. Section
                                                                   (D) was removed and replaced with additional descriptions of aggravated
explained all elements of a crime to a client before he pleads     murd er. See Ohio Rev. Cod e § 2903 .01 (2002).
No. 01-3613                           Stumpf v. Mitchell     13   14    Stumpf v. Mitchell                           No. 01-3613

  (D) No person shall be convicted of aggravated murder           Ohio Rev. Code § 2903.01(D) (1984)(amended 1996).
  unless he is specifically found to have intended to cause       Finally, the fact-finder must also be instructed that “the
  the death of another . . . .                                    prosecution must prove the specific intent of the person to
                                                                  have caused the death by proof beyond a reasonable doubt.”
Ohio Rev. Code § 2903.01 (1984) (amended 1996).                   Ohio Rev. Code § 2903.01(D) (1984) (amended 1996). Read
Furthermore, the statute limits fact-finders from inferring       together, these provisions indicate that specific intent may not
specific intent solely from an accused’s participation in a       be inferred solely from the fact of participation in a felony
felony murder:                                                    murder but must be established explicitly by the prosecution.
  [I]n no case shall a jury in an aggravated murder case be          Ohio courts have confirmed this interpretation of the
  instructed in such a manner that it may believe that a          statute. In In re Washington, 691 N.E.2d 285, 287 (1998), the
  person who commits or attempts to commit any offense            Supreme Court of Ohio considered an appeal regarding
  listed in division (B) of this section is to be conclusively    whether there was sufficient evidence to support the specific
  inferred, because he engaged in a common design with            intent requisite for an aggravated murder conviction, in a case
  others to commit the offense by force and violence or           in which the murder was committed in the course of a
  because the offense and the manner of its commission            robbery. As the court explained: “Washington cannot [be
  would be likely to produce death, to have intended to           found guilty of] aggravated murder based solely on his
  cause the death of any person who is killed during the          complicitous actions. It is also necessary for the state to
  commission of or attempt to commit, or flight from the          establish that Washington acted with the kind of culpability
  commission of or attempt to commit, the offense. If a           required of the commission of aggravated murder.” In re
  jury in an aggravated murder case is instructed that a          Washington, 691 N.E.2d at 286. In this particular case, the
  person who commits or attempts to commit any offense            court found that there was sufficient evidence for the trial
  listed in division (B) of this section may be inferred,         court to conclude that Washington had acted with the
  because he engaged in a common design with others to            requisite intent, because the trial court inferred intent only
  commit the offense by force or violence or because the          after “hearing and considering all the evidence” instead of
  offense and the manner of its commission would be               presuming intent based on Washington’s participation in the
  likely to produce death, to have intended to cause the          robbery. In re Washington, 691 N.E.2d at 288.
  death of any person who is killed during the commission
  of, attempt to commit, or flight from the commission of           Here, the record of the plea proceeding clearly
  or attempt to commit the offense, the jury also shall be        demonstrates that the defendant did not possess an
  instructed that the inference is nonconclusive, that the        understanding of the aggravated murder charge to which he
  inference may be considered in determining intent, that         pleaded guilty. Although the district court ultimately
  it is to consider all evidence introduced by the                concluded that the state court record was suggestive of a
  prosecution to indicate the person’s intent and by the          knowing and voluntary plea, it did concede that the plea
  person to indicate his lack of intent in determining            proceeding was “not a picture of clarity.” We agree, and we
  whether the person specifically intended to cause the           note that this “lack of clarity” first surfaced at the moment the
  death of the person killed . . . .                              prosecutor informed the court that a plea agreement had been
                                                                  reached. He gave the following account of the agreement:
No. 01-3613                          Stumpf v. Mitchell     15   16       Stumpf v. Mitchell                                 No. 01-3613

 SCOTT: Your Honor, the first matter that would be dealt           Indictment and including the specification to the third
 with or the State would ask leave of Court pursuant to            count.
 Criminal Rule 7 (D) and Ohio Revised Code Section
 2941.30 to amend by interlineation specification one to           That is my understanding of the arrangement that we are
 the first count of the Indictment in order that it may read       proposing to the Court at the present time.3
 as follows: The Grand Jurors further find and specify
 under Ohio Revised Code Section 2929.04(A)(3) in                  Reviewing this portion of the trial court record, the district
 compliance with Ohio Revised Code Section 2941.14               court commented that “the prosecuting attorney’s explanation
 that the aforesaid offense being the offense charged in         of the plea agreement was somewhat difficult to follow, and
 the first court, the Aggravated Murder, was [committed]         that criminal defendants in such situations will often answer
 for the purpose of escaping detection, apprehension, trial      questions posed by the trial court without a clear
 or punishment for other offenses – the words, “other            understanding of each and every term uttered – especially if
 offenses” are the first change, committed by the above          advised by counsel to do just that.” But the trial court in this
 named John David Stumpf, to wit: Aggravated Robbery             case, rather than attempting to elucidate the prosecutor’s
 and then we’re adding the language “and Attempted               explanation for the defendant, immediately turned to the
 Aggravated Murder”. If that amendment is granted, the           defendant for verification of the prosecutor’s account of the
 defendant then would enter a plea of guilty to the first        plea agreement. As the record reveals, even at this stage in
 count contained in the Indictment, being the Aggravated         the plea agreement, the defendant appeared to be unable to
 Murder count and a plea of guilty to specification one to       follow the proceedings:
 the first count as amended; would also enter a plea of
 guilty to the second count in the Indictment, being the           JUDGE HENDERSON: Thank you, Scott. Before
 offense of – excuse me, back up. As to the first count he         ruling on the motion or amendment of the Indictment, I
 would also enter a plea of guilty to specification four to        would ask Counsel for the defense if they wish to
 the first count. So, he will be pleading to the first count,      comment upon the statement of the Prosecutor. Tingle?
 the amended specification one to the first count and
 specification four to the first count. With regard to the         TINGLE: If the Court please, the statement made by the
 second count, being the Attempted Aggravated Murder,              Prosecuting Attorney is an accurate statement based upon
 he would enter a plea of guilty to the Attempted                  our discussions with him earlier today and one upon
 Aggravated Murder and a plea of guilty to the                     which we are ready to proceed at this time.
 specification to the second count. If the pleas of guilty to      JUDGE HENDERSON: I’m going to ask the Counsel
 the two counts and the specifications I’ve mentioned are          for the defendant to inform the defendant that I am going
 accepted by the Court, the Court would then proceed               to ask one question of the defendant very shortly and that
 under Criminal Rule 11(c)(3) to determine if there is a           question is this: Do you, John David Stumpf,
 factual basis for the plea of guilty to the Aggravated            affirmatively acknowledge the agreement that has been
 Murder charge and the existence of the aggravating
 circumstances and if the pleas are accepted the State
 would then ask leave to enter a nolle pros as to                     3
                                                                       The plea agreement also merged specification four of count one, and
 specifications two and three to the first count and also a      specification one o f count two. T hat is, bo th gun spe cifications were to
 nolle pros as to the third, fourth and fifth counts in the      be treated as part o f the same offense for sentencing purposes.
No. 01-3613                           Stumpf v. Mitchell     17   18   Stumpf v. Mitchell                           No. 01-3613

  stated by the Prosecutor and concurred in by the                  JUDGE HENDERSON: Have you informed your client
  defendant’s counsel? Having forewarned the defendant              of the elements of the offenses with which he is charged,
  of the question that is to be asked, I’m going to ask that        of all defenses which may be available to him and of all
  question now.          Stumpf, do you affirmatively               of his Constitutional rights, both State and Federal?
  acknowledge this agreement?
                                                                    TINGLE: Yes, we have.
  STEPHENS: Would you repeat the question for him
  Your Honor?                                                     After his attorneys indicated that they had explained the
                                                                  elements of the crime to their client, Stumpf was sworn in for
  JUDGE HENDERSON: Stumpf, do you affirmatively                   the limited purpose of answering questions concerning his
  acknowledge the agreement that has been stated by the           guilty plea, and affirmed his attorney’s statements, as follows:
  Prosecutor and concurred in by your attorneys?
                                                                    JUDGE HENDERSON: Stumpf, I’m going to ask you
  THE DEFENDANT: Yes, sir.                                          a number of questions and if you do not understand those
                                                                    questions you may inquire of your attorneys to better
   Obviously, not every ambiguity in a plea proceeding,             able you to understand everything that is being asked
without more, will demonstrate that a plea is not “knowing          you. These have to do with the rights that you have as a
and intelligent.” However, the exchange set out above turned        person who has been accused of a crime. Do you
out to be merely the beginning of much confusion that was to        understand that you have a constitutional privilege
follow. After allowing amendment of the indictment, the             against self-incrimination?
court conducted a plea colloquy, examining first the defense
attorneys, and then the defendant:                                  THE DEFENDANT: Yes, sir.
  JUDGE HENDERSON: The Indictment seems to be in                    JUDGE HENDERSON: With a full understanding that
  order and the Court is going to make certain inquiries of         anything that you say may be used against you, are you
  the counsel for the defendant and the defendant as to the         willing then to answer questions with regard to your
  proposed entry of the guilty plea. It is necessary that           understanding of your rights?
  question be asked and answers thoughtfully given in a
  case of this sort. I’m going to inquire of the attorneys for      THE DEFENDANT: Yes, sir.
  the defendant, have you fully investigated the facts and
  the law of this case and determined whether there exists          JUDGE HENDERSON: Now, you heard the questions
  any question of the admissibility of any claimed                  that I put to your attorneys, I believe, relative to their
  admissions, confessions or other evidence under Federal           advice to you and their counseling of you, did you not?
  and State law and advised your client concerning the
  same?                                                             THE DEFENDANT: Yes, sir.

  TINGLE: We have, Your Honor.                                      JUDGE HENDERSON:                Do you personally
                                                                    acknowledge that your attorneys have informed and
                                                                    advised you as they say they have?
No. 01-3613                          Stumpf v. Mitchell     19   20   Stumpf v. Mitchell                          No. 01-3613

  THE DEFENDANT: Yes, sir.                                         JUDGE HENDERSON: Do you understand also that
                                                                   you would be subject under the – under specification four
  JUDGE HENDERSON: Are you satisfied with the                      to the first count to three years incarceration before you
  services which they have performed for you?                      begin to serve any other sentence?
  THE DEFENDANT: Yes, sir.                                         THE DEFENDANT: Yes, sir.
  Judge Henderson next questioned Stumpf as to his physical        JUDGE HENDERSON: Do you understand also that the
and mental health, and whether he was presently under the          Attempted Aggravated Murder, which is set forth in
influence of drugs or alcohol. He then went over the crimes        count two, is a felony in the first degree and that you
to which Stumpf was pleading guilty. The following is a            could be sentenced to be incarcerated for a period of four,
complete account of his explanation to the defendant:              five, six or seven but not more than twenty-five years?
                                                                   Do you understand that, sir?
  JUDGE HENDERSON: Do you understand that you are
  charged with several offenses? The first offense being           THE DEFENDANT: Yes, sir.
  that of Aggravated Murder, that there have been two
  specifications being presented at this time in this              JUDGE HENDERSON: Do you understand also that for
  particular proceedings, to wit: Aggravated Robbery and           a felony of the first degree that you could be fined not
  Attempted Murder and possession of a firearm while               more than $10,000.00?
  committing those offenses. Do you understand that?
                                                                   THE DEFENDANT: Yes, sir.
  THE DEFENDANT: Yes, sir.
                                                                   JUDGE HENDERSON: And that you could receive
  JUDGE HENDERSON: Do you understand also that                     both the fine and the incarceration, which I have
  you have been charged with the offense of Attempted              mentioned?
  Aggravated Murder, which is a felony in the first degree?
                                                                   THE DEFENDANT: Yes, sir.
  THE DEFENDANT: Yes, sir.
                                                                   JUDGE HENDERSON: Are you presently on probation
  JUDGE HENDERSON: For the first count, which is that              or parole, sir?
  of Aggravated Murder, you are subject to the following
  penalties: you are subject to being – to a sentence of           THE DEFENDANT: No, sir.
  twenty years without probation, that is, a sentence of life
  without probation for twenty years; a sentence of life           As indicated below, Stumpf has a low IQ and has been
  without probation for a period of thirty years and the         found to be mentally and emotionally immature.
  death penalty by electrocution could be imposed against        Nevertheless, the trial court never inquired into Stumpf’s
  you. Do you understand that, sir?                              ability to understand the guilty plea proceedings or the nature
                                                                 of the charges against him. The explanation set out above is
  THE DEFENDANT: Yes, sir.                                       the only account of the crimes provided to Stumpf by the
No. 01-3613                                   Stumpf v. Mitchell          21     22     Stumpf v. Mitchell                         No. 01-3613

court. Nowhere does the court explain the elements, or even                        evidence and testimony on your own behalf. My
read the charges as listed in the indictment.4                                     statement to you and my question to you was intended to
                                                                                   except those rights that you do have. Counsel, is that
  Judge Henderson then proceeded to question Stumpf about                          satisfactory?
the rights he was surrendering by pleading guilty. The
exchange went as follows:                                                             STEPHENS: Yes, sir.
  JUDGE HENDERSON: Do you understand that if you                                   We read this exchange to reflect a misunderstanding
  plead guilty you will waive, that is, you will give up the                     between attorney Stephens and Judge Henderson. Stephens,
  right to a jury trial or trial by the Court; the right to be                   answering for Stumpf, asserted the defendant’s right to
  presumed innocent and until proved guilty beyond a                             present evidence during “a hearing or trial relative to the
  reasonable doubt; the right to confront and to question                        underlying facts” of the case. He was plainly referring to the
  the witnesses against you and to have compulsory                               factual basis hearing and asserting the defendant’s wish to
  process for obtaining witnesses in your favor; the right                       challenge the state’s version of the facts. Judge Henderson
  to remain silent or to testify at your trial as you may                        indicated in response that the defendant could present
  choose and that no inferences may be drawn if you                              evidence during “the sentencing portion of this trial,”
  choose not to testify at your trial. Do you understand                         apparently referring to the mitigation phase. In any case, this
  that you may be giving up those rights?                                        was the first indication that the defendant did not wish to
                                                                                 concede the state’s version of the facts. The parties next
   STEPHENS: Your Honor, with reference to that, we                              discussed a prior suppression hearing, and then the court
  have explained that to the defendant. He was going to                          resumed questioning Stumpf:
  respond but we have informed him that there is, after the
  plea, a hearing or trial relative to the underlying facts so                     JUDGE HENDERSON: Do you understand, Stumpf,
  that he is of the belief that there will be presentation of                      that if any promises or inducements have been made to
  evidence and I wanted to make that clear to the Court                            you by any person to cause you to plead guilty that they
  with reference to his right of waiver of trial to Court.                         are not binding upon the Court, that if you plead guilty
                                                                                   that Court, this panel of Judges, will decide your
  JUDGE HENDERSON: I understand that and I                                         sentence after considering all of the evidence that is to be
  appreciate your bringing that to my attention, Stephens.                         presented and evidence in mitigation of punishment and
  Of course in the sentencing portion of this trial you do                         after considering a presentence investigation, report and
  have those rights to speak in your own behalf to present                         recommendation approved and prepared by the probation
                                                                                   department and that you may receive the maximum
                                                                                   sentence prescribed by law. Do you understand that, sir?
    4
      Stumpf did initial the interlineation amendment to the indictment            THE DEFENDANT: Yes, sir.
during the plea hearing, but there is no ind ication in the record that he had
actually read the indictment at any point or that it had been read to him.
Moreo ver, we conc lude that use of the term “purp osely” is not sufficient        JUDGE HENDERSON:         Have any promises or
to put the defendant on no tice that sp ecific intent, which is expressly more     inducements been made to you, sir, other than the
than intent implied from participation in a felony, is a required element of
aggravated murder.
No. 01-3613                           Stumpf v. Mitchell     23    24   Stumpf v. Mitchell                          No. 01-3613

  agreement which you have affirmatively acknowledged              before the plea was finalized and Stumpf’s fate was sealed.
  on the record?                                                   Once again, however, Judge Henderson referred to the
                                                                   defendant’s “right to present evidence in mitigation hearing,”
  THE DEFENDANT: No, sir.                                          completely missing the clear implication that despite his
                                                                   admission of guilt, Stumpf was concerned about preserving
  JUDGE HENDERSON: Are you in fact guilty of count                 his ability to contest the state’s account of his actions.
  one with specification one and specification four?
                                                                      Moreover, defense counsel’s arguments during the
   STEPHENS: One moment, Your Honor. Your Honor,                   subsequent evidentiary hearing confirm the defendant’s desire
  the defendant has asked me to explain his answer. His            to contest the state’s version of the crime. From the opening
  answer in yes. He will recite that with obviously his            statement at that hearing, counsel argued that Wesley, not
  understanding of his right to present evidence at a later        Stumpf, was the one who shot Mary Jane Stout. For example,
  time relative to his conduct, but he’ll respond to that.         defense counsel’s opening statement included the following:
  JUDGE HENDERSON: At no time am I implying that                     [T]he scenario as outlined by Scott [the prosecutor] does
  the defendant will not have the right to present evidence          follow the sequence of events as they did occur, except
  in mitigation hearing and I do appreciate it, Stephens,            for the statements as to the actual shooting of Mary Jane
  that you bring this to the attention of the Court. And I’m         Stout, which the defendant believes the evidence will
  going to ask that the defendant, himself, respond to the           show occurred at the hands of Daniel Wesley.
  question that I asked with that understanding that he has
  the right to present evidence in mitigation. I’m going to           The district court rejected Stumpf’s argument that his
  ask the defendant if he is in fact guilty of the charge set      position that he was not the shooter rendered his guilty plea
  forth in Count one, including specification one and              involuntary, relying on Garcia v. Johnson, 991 F.2d 324, 327
  specification four?                                              (6th Cir. 1993), as authority for the proposition that a
                                                                   “temporary qualification of position by the defendant is not
  The Defendant: Yes, sir.                                         sufficient to rebut the presumption of correctness of state
                                                                   court proceedings, and to support a finding that [the
   Again, the exchange between Stephens and Judge                  defendant] did not understand the nature of his plea.” Stumpf
Henderson has all the hallmarks of a serious                       v. Anderson, 2001 WL 242585 (S.D. Ohio 2001) (quoting
misunderstanding. Stumpf was unwilling to plead “guilty”           Garcia, 991 F.2d at 327). We conclude that the district
without expressly reserving his right to present evidence          court’s reliance was misplaced, however, because Stumpf’s
“relevant to his conduct.” Read with the preceding reference       qualification was more than temporary, and it was never
to presenting evidence, this could only refer to the subsequent    addressed by the trial court.
evidentiary hearing to establish a factual basis for the plea.
Stumpf, obviously, was reiterating his desire to challenge the       By contrast, in Garcia, the defendant first claimed that he
state’s account of his actions, and had the procedure called for   had not intended to kill his victim. Garcia, 991 F.2d at 327.
an immediate determination of the evidence relied upon by          After this statement, the judge conducted “a substantial
the state to support the defendant’s imminent conviction, the      discussion” with the defendant regarding the facts of the case,
misunderstanding would undoubtedly have come to light              and Garcia then admitted that he had intended to kill his
No. 01-3613                            Stumpf v. Mitchell     25    26   Stumpf v. Mitchell                           No. 01-3613

victim. Id. Here, the trial judge, before accepting Stumpf’s        thus counterbalances the assurances given by defense counsel
plea, had not informed the defendant that specific intent was       that they had explained the elements to Stumpf.
an element of the crime to which he was pleading, nor had he
inquired whether Stumpf had actually shot the victim or, if           We recognize, of course, that Stumpf need not have been
not, had specifically intended that she be killed. In the           the “principal offender” – the actual shooter – in order to have
absence of some inquiry, Stumpf’s express reservations of his       specifically intended the death of Mary Jane Stout.
ability to put on evidence of his version of the crime, along       Nevertheless, it is clear from the record of the factual basis
with his attorneys’ arguments that he did not intend, and was       hearing that the state’s theory of guilt relied completely on
not even present for, the killing of Mrs. Stout, should have put    Stumpf being the principal offender. The prosecution
the trial court on notice that Stumpf was not aware of the true     presented no evidence that Stumpf intended Mrs. Stout’s
import of his plea.                                                 death, other than arguing that he was the actual shooter. In
                                                                    the closing arguments at the evidentiary hearing, defense
  The district court did not focus on the question of intent.       counsel, contending that the prosecution had not met its
Rather, it found that Stumpf’s position that he was not the         burden with regard to the basis for seeking the death penalty,
shooter was consistent with the specification to which he           effectively challenged the prosecution’s proof as to specific
pleaded guilty. However, in making this finding, the district       intent to kill. The prosecutor responded that “[a]s to a
court failed to recognize that Stumpf’s position is inconsistent    purpose to kill, whoever shot Mrs. Stout didn’t intend to do
with the charge to which he also pleaded guilty. It is this         her any favors when he shot her four times. It seems to me
inconsistency that gives rise to his claim that his plea was not    that shooting a person four times shows what your intent
validly entered.                                                    was.”
   Generally, a reviewing court presumes that defense counsel         Indeed, the three-judge panel, which presumably knew of
has explained the elements of the crime to a defendant              the intent element, found, beyond a reasonable doubt, that
pleading guilty, even where the record does not reflect any         Stumpf was “the principal offender” in the aggravated murder
statement by counsel to that effect. Berry v. Mintzes, 726          and made no other finding as to specific intent. Their
F.2d 1142, 1147 (6th Cir. 1984) (“it may be appropriate to          conclusion in this regard indicates that the panel found that
presume that in most cases defense counsel routinely explain        Stumpf’s shooting of Mrs. Stout provided the requisite
the nature of the offense in sufficient detail to give the          specific intent, as there was no other evidence in the record to
accused notice”); but cf. Henderson v. Morgan, 426 U.S. 637,        satisfy this element. Given this finding, it is unlikely that
642-48 (1976) (finding that, where the defendant’s attorneys        Stumpf can be said to have knowingly conceded specific
had argued to the court that their client had not intended to       intent to kill by pleading guilty, when he continued to
harm the victim, there could be no presumption that counsel         maintain throughout the proceedings that he had not been the
had explained to their client that intent was an element of the     one who actually shot the victim.
crime). In this case, defense counsel did state to the court that
they had informed Stumpf of the elements of the crime. In a           We conclude that the record of Stumpf’s plea hearing and
typical case, such an assurance would prevent a reviewing           the subsequent evidentiary hearing, taken together,
court from finding that a plea was involuntary. In this case,       demonstrate that the plea he entered was constitutionally
however, the record clearly establishes that Stumpf sought to       invalid. Boykin holds that, “because a guilty plea is an
preserve his right to argue that he was not the shooter and         admission of all the elements of a formal criminal charge, it
No. 01-3613                                 Stumpf v. Mitchell        27     28       Stumpf v. Mitchell                               No. 01-3613

cannot be truly voluntary unless the defendant possesses an                     Furthermore, the totality of the circumstances surrounding
understanding of the law in relation to the facts.” Boykin, 395              the plea provide additional evidence that the plea was not
U.S. 238, 243 n.5 (1969). This understanding must include                    voluntary, knowing, and intelligent. For example, Stumpf
“real notice of the true nature of the charge against him, the               argues that the fact that he remained eligible for the death
first and most universally recognized requirement of due                     penalty and, therefore, pleaded guilty under an agreement that
process.” Henderson v. Morgan, 426 U.S. 637, 644 (1976)                      provided absolutely no benefit in the form of a reduction in
(quoting Smith v. O’Grady, 312 U.S. 329, 344 (1941) (finding                 possible sentence, is an additional indication that his plea was
that, because the defendant did not know intent was an                       not knowing and intelligent.6 This argument standing alone
element of the crime to which he pleaded guilty, his plea                    would be not carry much weight, given the well-recognized
could not be voluntary).5 We have held that “a guilty plea is                principle that a guilty plea cannot be rendered involuntary
not deemed voluntary where the person entering it does so                    merely because, in hindsight, it turned out not to be the best
without understanding of the consequences of his plea.”                      decision. See McMann v. Richardson, 397 U.S. 759, 769-71
United States v. Stubbs, 279 F.3d 402, 411, 412 (6th Cir.                    (1970). However, Stumpf’s decision to plead guilty – by
2002) (quotation omitted) (finding, in a split decision in a                 agreement – to a crime with a capital specification, especially
case involving a mandatory minimum sentence, that if the                     in the absence of any identifiable reason to take such a course
“essential elements of the crime with which the defendant was                of action, creates an additional inference that his plea was
charged were not understood by the defendant, his counsel, or                invalid. In combination with his position that he was not the
the district court, then the defendant’s guilty plea would be                shooter, which reveals his ignorance of specific intent as an
constitutionally invalid”).                                                  element of the crime, the record indicates that Stumpf’s plea
                                                                             was involuntary “because he ha[d] such an incomplete
   As discussed above, when the state court record of a                      understanding of the charge that his plea cannot stand as an
defendant’s plea does not demonstrate that the plea is                       intelligent admission of guilt.” Ivy v. Caspari, 173 F.3d 1136,
constitutionally adequate, the state bears the burden of                     1141-42 (8th Cir. 1999)(guilty plea involuntary where
showing the plea was voluntary, knowing and intelligent.                     defendant was not informed that intent was a necessary
Here, the state has presented no extrinsic evidence to counter               element of the underlying felony).
the record of the proceedings discussed above. Instead, the
respondent has explicitly relied on that record alone to argue                  The question of counsel’s effectiveness in representing
that the plea was voluntary, knowing, and intelligent. Given                 Stumpf is not before us as an independent ground for relief.
the paucity – indeed, the lack -- of the evidence to refute what             It is, however, raised in the context of challenge to the
is clear on the record, we must conclude that the state has                  validity of his guilty plea. The record shows clearly that
therefore not met its burden of showing that the plea may
stand.
                                                                                  6
                                                                                   Stumpf also claims that his plea was invalid because he was not
                                                                             aware that he remained eligible for the death penalty. W e disco unt this
    5
                                                                             as a possible basis for relief, however, because the record of the plea
      Indeed, in Henderson, the defendant had heard the indictment,          hearing indicates that the judge, while listing the possible sentences
which charged that he had “willfully” stabbed the victim, read in open       Stumpf could receive for aggravated murder, did inform Stumpf at the
court. Henderson, 426 U.S. 637 , 642. The Sup reme Court found that this     time of his plea that “the death penalty by electrocution could be imposed
was not sufficient to put him on notice that intent was a required element   against you.” The judge then asked whether Stumpf understood, and
of the crime to which he was p leading guilty. Id. at 645-46.                Stumpf answered, “Yes, sir.”
No. 01-3613                            Stumpf v. Mitchell     29    30   Stumpf v. Mitchell                          No. 01-3613

Stumpf has always denied being the shooter. It is also clear        such a plea would have amounted to admitting that he
that defense counsel’s strategy, throughout both the                specifically intended the death of Mary Jane Stout. A
evidentiary hearing and the mitigation hearing, was to argue        mitigation investigator later reported, in an affidavit, that
that after Stumpf shot Norman Stout he panicked and fled,           “John did not want to plead guilty.” Moreover, affidavits
that Stumpf was not even present in the home when Mary              from Stumpf’s family affirm the impression that his attorneys
Jane Stout was shot, and that Wesley was, in fact, the one          were less than candid in explaining to them the motive behind
who shot Mrs. Stout. One possible, if unlikely, explanation         the plea. for example, Stumpf’s mother and sister said that
for counsel’s strategy is that they themselves were unaware         they were told by Stumpf’s attorney that he would not receive
that specific intent was an element of the crime. But, failure      the death penalty because of his plea.
to research the most basic details of the statute under which
their client was charged would be outside the “range of               We conclude from the record before us, as it relates to the
competence” to which the defendant is entitled. See                 murder of Mary Jane Stout, that there exists a reasonable
Henderson v. Morgan, 426 U.S. 637, 647 (1976). Perhaps              probability that, had the petitioner been fully informed of the
more disturbing is the possibility that counsel, realizing that     elements of the offense to which he was pleading and
intent was an element of the offense, nonetheless chose to          consequences of that plea, he would not have pleaded guilty
allow their client to plead guilty and then – and only then – to    to her aggravated murder.
contest the existence of that element. But this, too, would
manifestly constitute ineffective assistance, since a plea is not   B. The Due Process Violation
merely a confession but serves as a conviction, with only the
resulting sentence left to be decided. Boykin v. Alabama, 395         At the time of Stumpf’s post-plea evidentiary hearing and
U.S. 238, 242 (1969). It is true that Ohio requires a factual       his mitigation – or sentencing – hearing, his accomplice,
basis hearing in cases of aggravated murder, but it would           Wesley, was still in Texas, fighting extradition. During both
nonetheless be reckless and plainly incompetent for an              Stumpf’s plea hearing, held pursuant to Ohio Rev. Code
attorney to rely on a factual basis hearing to refute an element    § 2945.06, and his sentencing hearing, the prosecutor argued,
of a crime to which his client has already pleaded guilty.          and the three-judge panel ultimately found, that Stumpf was
Finally, whether Stumpf’s lawyers were aware of the intent          the principal offender, responsible for actually shooting Mary
element or not, their behavior compels the conclusion that          Jane Stout. After Stumpf’s sentencing in the fall of 1984, the
Stumpf himself was not aware of the intent element.                 state tried Clyde Wesley before a jury in the spring of 1985.
Stumpf’s observation of his attorneys’ attempt to contest the       Wesley was also charged with aggravated murder with capital
state’s version of events, and his own position throughout the      specifications, and during his trial, the state argued that
plea colloquy that he intended to challenge the state’s facts-      Wesley, not Stumpf, was the shooter. To support this
a position evidently sanctioned by his attorneys, reaffirms the     argument, the state presented testimony from Eastman,
conclusion that Stumpf was not aware that by pleading guilty        Wesley’s cellmate, about statements Wesley had made to
to aggravated murder he was admitting to specific intent to         Eastman concerning details about the murder. Wesley took
kill Mary Jane Stout.                                               the stand and denied that he was the shooter, but the jury
                                                                    convicted him of the aggravated murder of Mrs. Stout. At the
  There are other indications in the record, as well, pointing      sentencing phase of Wesley’s trial, the same jury then
to the existence of at least a reasonable probability that          recommended a sentence of 20 years to life, rather than the
Stumpf would not have pleaded guilty had he known that              death penalty.
No. 01-3613                            Stumpf v. Mitchell     31    32   Stumpf v. Mitchell                          No. 01-3613

  Stumpf argues that the prosecutor’s use of two conflicting           In Smith v. Groose, the Eighth Circuit considered a case in
theories concerning the identity of the shooter to convict both     which a prosecutor had used two different, conflicting
him and Wesley constitutes a due process violation.                 statements by a co-defendant at successive trials to convict
                                                                    the petitioner at the first trial and a second individual at a
  The Constitution’s Due Process clause guarantees every            second trial. Smith v. Groose, 205 F.3d 1045, 1049 (8th Cir.
defendant the right to a fair trial. Lassiter v. Department of      2000). That case involved a group of four young men who
Soc. Servs., 452 U.S. 18, 24-5 (1981); Turner v. Louisiana,         were looking for homes to burglarize one evening. In the
379 U.S. 466, 471-72 (1965). The Supreme Court has also             course of their search, they saw another group of burglars
emphasized that “because the prosecutor is in a peculiar and        breaking into a home. They realized they knew these men
very definite sense the servant of the law, the twofold aim of      and decided to help them break into the house. The residents
which is that guilt shall not escape or innocence suffer. . ., it   were murdered in the course of the burglary. The primary
is as much his duty to refrain from improper methods                issue at trial was whether the murders took place before or
calculated to produce a wrongful conviction as it is to use         after the four young men began participating in the offense.
every legitimate method to bring about one.” Berger v.              One of the four men first told the police that the other group
United States, 295 U.S. 78, 88 (1935), overruled on other           had committed the murders without the participation of the
grounds, Stirone v. United States, 361 U.S. 212 (1960).             group of four. Two days later, he told police that he had seen
                                                                    one of the four men from his group stabbing the victims with
   Drawing on the principle that the Constitution’s “overriding     a pocketknife; he later recanted this story. The prosecutor
concern [is] with the justice of the finding of guilt,” United      then used both statements to obtain convictions against men
States v. Agurs, 427 U.S. 97, 112 (1976), several of our sister     in each of the two groups. Id. at 1047-49.
circuits have found, or implied, that the use of inconsistent,
irreconcilable theories to secure convictions against more than        Examining the record before it, the Eighth Circuit held that
one defendant in prosecutions for the same crime violates the       “[t]he use of inherently factually contradictory theories
due process clause. See, e.g., Smith v. Groose, 205 F.3d 1045       violates the principles of due process.” Id. at 1052. The court
(8th Cir. 2000); Thompson v. Calderon, 120 F.3d 1045 (9th           found that in order to amount to a due process violation, an
Cir. 1997) (en banc); Drake v. Kemp, 762 F.2d 1449 (11th            inconsistency in the prosecutor’s theories “must exist at the
Cir. 1985) (en banc) (Clark, J., specially concurring); cf.         core of the prosecutor’s case against defendants for the same
Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995) (involving a         crime.” Id. This constitutes a due process violation because
situation where both defendants had shot at the victim and it       it renders convictions unreliable, given that “[the s]tate’s
was unclear whose bullet had actually hit and killed the            duty to its citizens does not allow it to pursue as many
victim; the court found that the two theories advanced by the       convictions as possible without regard to fairness and the
prosecution were not inconsistent because both defendants           search for truth.” Id. at 1051.
could have been convicted under the law of parties). On this
issue of first impression in this court, we now join our sister       In finding a due process violation under these
circuits in finding that the use of inconsistent, irreconcilable    circumstances, the Eighth Circuit in Smith v. Groose was
theories to convict two defendants for the same crime is a due      careful to distinguish the facts in its case from those in the
process violation.                                                  Fifth Circuit’s opinion in Nichols v. Scott, 69 F.3d 1255 (5th
                                                                    Cir. 1995), where the court did not reach the due process
                                                                    question in a case in which the prosecutor argued in two
No. 01-3613                                   Stumpf v. Mitchell          33     34    Stumpf v. Mitchell                            No. 01-3613

separate cases that different defendants had each shot the one                   Eleventh Circuit case which, although it granted habeas relief
bullet that killed the victim. Id. at 1268. The distinction in                   on alternate grounds, also involved inconsistent theories:
the Nichols case was that both perpetrators had fired shots at
the victim, and both could have been convicted under a felony                      The prosecutor’s theories of the same crime in the two
murder theory. Therefore, the prosecutor’s arguments were                          different trials negate one another. They are totally
not factually inconsistent, because both defendants could have                     inconsistent. This flip flopping of theories of the offense
been convicted even if the prosecutor had used the identical                       was inherently unfair. Under the peculiar facts of this
argument in both cases. Groose, 205 F.3d at 1051.                                  case the actions by the prosecutor violate the
                                                                                   fundamental fairness essential to the very concept of
   Finally, the Ninth Circuit considered a similar situation in                    justice. . . The state cannot divide and conquer in this
Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en                            manner. Such actions reduce criminal trials to mere
banc), vacated on other grounds, 523 U.S. 538 (1998). In                           gamesmanship and rob them of their supposed search for
that case, the prosecutor argued at one trial that, based on                       the truth.
jailhouse informant testimony, one defendant had committed
a rape and murder. At a second trial, the prosecutor used                        Thompson, 120 F.3d at 1059 (quoting Drake v. Kemp, 762
different jailhouse informants to argue that the second                          F.2d 1449, 1479 (11th Cir. 1985) (en banc) (Clark, J.,
defendant had the motive and disposition to commit the                           concurring)).
crimes. A plurality of the en banc Ninth Circuit,7 specifically
excluding situations where new evidence comes to light,                             In this case, the state clearly used inconsistent,
found that a prosecutor cannot use inconsistent theories of the                  irreconcilable theories at Stumpf’s hearings and Wesley’s trial
same crime in order to secure multiple convictions. Id. at                        At each proceeding, the prosecutor argued that the defendant
1058. The court echoed Judge Clark’s concurrence in an                           had been the one to pull the trigger, resulting in the fatal shots
                                                                                 to Mary Jane Stout. At Wesley’s trial, the prosecutor relied
                                                                                 on Eastman’s testimony and on the gun-switching scenario
                                                                                 argued by Stumpf, to secure Wesley’s conviction. The
                                                                                 prosecutor asserted:
    7
      The majority opinion rested on an ineffective assistance of counsel
claim. See Thompson v. Calderon, 120 F.3d 10 45, 1051 -56 (9th Cir.                Believing he had killed Mr. Stout, [Stumpf] pitched the
1997)(en banc). However, desp ite the fact tha t a majority of judges did          gun aside and left the immediate area back the hallway
not join in the portion of the opinion finding a due process violation,
several of the conc urring and dissenting judge s indicated that they would
                                                                                   down the steps to the basement. At that point [Wesley,]
find a due process violation for the use of wholly inconsistent theories to        whose own gun was jammed, picked that chrome colored
convict separate defendants. See, e.g., Thompson, 120 F.3d at 1063-64              Raven up and as Mrs. Stout sat helplessly on her bed,
(Tashima, J., concurring, joined by Thomas, J.)(agre eing with the premise         shot her four times in order to leave no witnesses to the
that “due p rocess is violated when a pro secuto r pursu es who lly                crime.
inconsistent theories of a case at separate trials” but arguing that, in order
to find prejudice, the court m ust decide w hich of the two theories is
true)(quotation omitted ); Thompson, 120 F.3d at 1066-73 (Ko zinski, J.,
                                                                                 These statements are irreconcilably inconsistent with those
dissenting, joined by N elson, J.)(“In the case o f mutually inconsistent        made by the very same prosecutor at Stumpf’s plea hearing,
verdict, which I am not sure is the case here, I believe that the state is       when he told the trial court:
required to take the necessary steps to set aside or modify at least one of
the verdicts.” Id. at 1071.)
No. 01-3613                           Stumpf v. Mitchell     35    36       Stumpf v. Mitchell                             No. 01-3613

  Believing that the had killed Mr. Stout, Stumpf [then]           rights because the prosecutor had no knowledge of Eastman’s
  turned the same chrome colored Raven automatic pistol            testimony at the time of Stumpf’s plea. The state learned of
  upon Mary Jane Stout as she sat on the bed and shot her          Eastman’s testimony soon after Stumpf’s plea and sentencing
  four times. Three times in the left side of the head and         and yet continued to maintain that the convictions of both
  neck and one time in the writs; obviously in order not to        Stumpf and Wesley, each of which was obtained by arguing
  leave anyone available to identify him.                          that a different individual was the shooter, were sound and
                                                                   reliable.8 Indeed, as discussed below, the state maintained
   The state claims that, because Eastman’s testimony was not      that Eastman’s testimony was unreliable during a hearing on
available at the time of Stumpf’s guilty plea, Stumpf is really    Stumpf’s motion to vacate his plea and/or his sentence. To
asserting Wesley’s due process claim in the guise of his own.      this day, there has been no suggestion of corrective action by
The state also argues that “it was of no import to the charge      the state.
of capital murder against Stumpf which of the two
[defendants] killed the witness [Mrs. Stout]” since the capital       The state’s second argument, with which the district court
specification was that Mrs. Stout was killed because she was       agreed, is that the identity of the shooter was not the critical
a witness to the crime, and not that the defendant had been the    issue in either trial and that therefore the use of different
shooter.     Finally, the state asserts that inconsistent,         theories did not violate Stumpf’s due process rights. By
irreconcilable theories were not used in these two cases,          pleading guilty to capital murder, the state’s argument goes,
because the prosecution did not rely on Eastman’s testimony        Stumpf admitted concerted action with Wesley in causing the
at Wesley’s trial. None of these arguments is persuasive.          death of Mary Jane Stout for the purposes of avoiding
                                                                   detection. All that was left for the prosecution then to prove,
   First, Stumpf clearly has a due process claim even though       under this theory, was that Mrs. Stout was killed so that the
Eastman’s testimony was not available at the time of his trial.    defendant could escape detection for other crimes. But this
It is true that this is not a case where the prosecutor            argument ignores the fact that, as the aggravated murder
selectively presented evidence in Stumpf’s case to support the     statute existed in 1984, specific intent was a necessary
theory of the murder he was arguing in that case. However,         element of the crime. Ohio Rev. Code § 2903.01(B); see also
the due process challenge to the use of inconsistent theories      supra, pp.15-16. Because Stumpf never confessed to specific
is based on the notion of fundamental fairness. Because            intent to kill Mrs. Stout, the prosecution bore the burden of
inconsistent theories render convictions unreliable, they          proving beyond a reasonable doubt that Stumpf was guilty of
constitute a violation of the due process rights of any            the charge.
defendant in whose trial they are used. In Groose, the
petitioner was in fact the defendant at the first trial, and the     Finally, the state argues that irreconcilable theories were
second, inconsistent theory did not come to light until four       not used because Eastman’s testimony was completely
years after his conviction, at the second trial. Groose, 205
F.3d at 1048. Nevertheless, the Eighth Circuit found that his
due process rights had been violated. Logically, “both                  8
                                                                         In fact, W esley’s co unsel wanted to inform the jury that the
[defendants’ due process rights] were prejudiced by the            prosecutor had p reviously argued that Stumpf, and not W esley, was the
prosecutor’s actions or neither’s were.” Drake, 762 F.2d at        shooter. The prosecutor argued that Stumpf had never admitted to firing
1479 (Clark,J., concurring). Furthermore, it is disingenuous       the shots, and that his own argument was irrelevant. The trial court did
                                                                   not allow Wesley’s counsel to discuss Stumpf’s proceedings in front of
of the state to argue that there is no violation of Stumpf’s       the jury.
No. 01-3613                            Stumpf v. Mitchell     37    38       Stumpf v. Mitchell                               No. 01-3613

unreliable. State’s counsel even asserted at oral argument that     habeas relief was not warranted, because the Supreme Court
the state did not rely on Eastman’s testimony in order to           of Ohio’s independent reweighing of the aggravating and
prosecute Wesley. This argument is just short of astounding,        mitigating circumstances cured any misplaced reliance on
given the fact that in seeking to convict Wesley of aggravated      Stumpf having been the actual shooter. Apparently engaging
murder, the prosecution offered no proof of the element of          in such a reweighing process, the Ohio Supreme Court
specific intent other than the theory that Wesley was the           concluded that Eastman’s testimony was not sufficient to tip
actual shooter. That the state relied on Eastman’s testimony        the balance of aggravating and mitigating factors.
is evident from the fact that it presented his testimony to the
jury, and from the fact that it prevented Wesley’s counsel             We cannot agree with this reasoning, because we do not
from presenting evidence of Stumpf’s guilty plea. Had the           believe that a reweighing of the factors used to support
state presented a theory of the crime consistent with the           imposition of the death penalty cures the due process
theory it asserted at Stumpf’s evidentiary hearing, it would        violation at issue. The Ohio Supreme Court, it is true, found
have had no need to keep that information from Wesley’s             that “the testimony of a cellmate during Clyde Wesley’s trial
jury.                                                               is of minimal credibility, especially in light of appellant’s
                                                                    guilty plea and the substantial evidence to the contrary
  The district court ultimately accepted the state’s argument       adduced during appellant’s sentencing hearing.” State v.
that the core issue at Stumpf’s evidentiary hearing was not the     Stumpf, 32 Ohio St. 3d at 106. But, putting aside for the
identity of the shooter. However, in reaching this conclusion,      moment the question of whether Eastman’s testimony need be
the court started with what we believe to be a faulty               credible for a due process violation to be established by the
assumption, i.e., that “the state was not required to prove that    state prosecution’s presentation of and evident reliance on it,
petitioner was the actual shooter.” The district court, in          there is no explicit state court determination regarding
concluding that the specification to which Stumpf pleaded           Eastman’s credibility to which this court must give deference.
guilty, Ohio Rev. Code § 2929.04(A)(3), did not require that        Although there is a presumption that a state court’s factual
Stumpf be proven to be the “principal offender,” overlooked,        findings are correct, this presumption applies only to basic
once again, the fact that the aggravated murder statute itself      facts and to those facts implicitly established through the trial
requires specific intent. See discussion supra pp. 15-16. The       court’s unique ability to judge the witnesses’ credibility and
state was not required to prove that the petitioner was the         demeanor. See McQueen v. Scroggy, 99 F.3d 1302, 1310
actual shooter, but it was required to prove specific intent.       (6th Cir. 1996). No court at any level considering Stumpf’s
                                                                    claims actually observed Eastman’s testimony.9 The first
   Even proceeding from the district court’s false assumption,      court explicitly to examine the transcripts of that testimony,
however, we cannot agree with the court’s ultimate                  the two-judge trial panel, failed to make any factual findings,
conclusion. The district court found that, although the state       instead denying Stumpf’s motion summarily. The Supreme
was not required to prove that Stumpf was the actual shooter,
“the fact remains that the state did argue that petitioner was
[the] actual shooter and the trial court did find that petitioner        9
                                                                          Indeed, only two fact-finders actually observed Eastm an’s
was the actual shooter.” The district court went on to              testimony. The jury at Wesley’s trial obviously credited Eastman enough
recognize that the trial court cited this very finding as “a        to find W esley guilty. The trial judge, in pre-trial proceedings, made at
reason, and a very substantial reason” that petitioner received     least one credib ility determination when he found that Eastman was not
                                                                    a government agent within the m eaning of Miranda v. Arizona, 384 U.S.
the death penalty. The district court found, however, that          436 (1966). See State v. Wesley, 1986 O hio App. LEX IS 8651 (1 986).
No. 01-3613                                  Stumpf v. Mitchell         39     40   Stumpf v. Mitchell                           No. 01-3613

Court of Ohio recognized as much when it found that the trial                  evidence comes to light a prosecutor cannot, in order to
court had “apparently” determined that Eastman’s testimony                     convict two defendants at separate trials, offer inconsistent
did not change the balancing of mitigating and aggravating                     theories and facts regarding the same crime”). We have no
factors. The Supreme Court of Ohio also presumably                             quarrel with this proposition, to the extent that it is meant to
examined the transcripts, concluding that the testimony was                    acknowledge a state’s need to continue to investigate crimes
of “minimal credibility.” Neither the presumed factual                         and to present all available evidence in court. However, in
finding by the trial court, nor the more explicit one made by                  this case, although Eastman’s testimony did not come to light
the Supreme Court of Ohio is due the type of complete                          until after Stumpf had been convicted and sentenced to death,
deference contemplated by the state, because neither of these                  the state had many opportunities to correct its use of
courts had any better opportunity to judge Eastman’s                           conflicting theories. Stumpf, upon learning of the state’s
credibility than we do.                                                        reliance on the theory that Wesley was actually the shooter,
                                                                               timely filed a motion to vacate his guilty plea and/or his
   Finally, the state presses an argument that Eastman’s                       sentence. The two judges hearing this motion expressed some
testimony was not credible because it relied on “the same type                 concern over whether there was evidence that Stumpf was not
of implausible gun switching and gun juggling that Stumpf                      in fact the shooter, but the state did not take that opportunity
told.”10 This, of course, is beside the point. The pertinent                   to advocate that all the available evidence be presented to the
fact for Stumpf’s due process claim is not whether Eastman’s                   sentencing panel.
gun-switching story is plausible,11 but whether the
prosecution relied on that story to secure Wesley’s conviction.                   A due process claim is a mixed question of law and fact and
The prosecution found Eastman’s testimony credible enough                      is therefore subject to de novo review. Williams v. Coyle,
to present the “implausible gun switching” theory to Wesley’s                  260 F.3d 684, 706-07 (6th Cir. 2000). Here, the proper
jury and obtain his conviction on that theory.                                 standard of review is whether there is a reasonable probability
                                                                               that the prosecutor’s use of inconsistent, irreconcilable
   In holding that a constitutional violation occurred in this                 theories rendered the conviction unreliable. See, e.g., id., 260
case, we recognize that at least one circuit has suggested that                F.3d at 706-07; Brady v. Maryland, 373 U.S. 83 (1963);
a due process violation for the use of conflicting theories may                Strickland v. Washington, 466 U.S. 668, 694(1984). A
be obviated when the second of two inconsistent theories                       “reasonable probability” is a probability sufficient to
results from the discovery of new evidence. See Thompson v.                    undermine the outcome and is less than a preponderance of
Calderon, 120 F.3d 1045, 1058 (“when no new significant                        the evidence. Strickland at 694; Lyons v. Jackson, 299 F.3d
                                                                               588, 599 (6th Cir. 2002).
    10
       Eastman testified at W esley’s trial that W esley told him that after
                                                                                 Measured against this standard, the state’s due process
Stumpf had shot Mr. Stout, Stumpf panicked and dropped the .25 caliber         violation mandates that both Stumpf’s plea and his sentence
Raven. W esley then picked up the Ra ven an d sho t Mrs. Stout a few           be set aside. First, there is a reasonable probability that, had
times. W hen Mrs. Stout moaned, W esley shot her again to make sure she        the prosecution not pursued conflicting theories concerning
was dead.                                                                      who was the actual shooter, Stumpf either would not have
    11                                                                         pleaded guilty or the three-judge panel would not have found
      One could argue that this story is more likely to be plausible           a factual basis for the specific intent element of aggravated
because it is so similar to Stumpf’s acco unt of the crime, which he
recounted many months before Eastman testified.
                                                                               murder. Second, and perhaps more likely, there is a
No. 01-3613                            Stumpf v. Mitchell     41    42   Stumpf v. Mitchell                           No. 01-3613

reasonable probability that, had the prosecution not pursued          of whether the death penalty should follow. I’m not
inconsistent theories, Stumpf would not have been sentenced           saying it would, but it’s possible.
to death.
                                                                       It is true that Judge Bettis made this comment during a
   As discussed at length above, it was necessary for the three-    hearing in which the panel had before it both a transcript of
judge panel to find that Stumpf specifically intended the death     Eastman’s testimony and evidence of the prosecution’s
of Mary Jane Stout in order for it to accept his plea to            reliance on that theory of the crime. However, the fact that
aggravated murder. Ohio Rev. Code § 2903.01(D) (“[n]o               the panel did not grant Stumpf’s motion to withdraw his
person shall be convicted of aggravated murder unless he is         guilty plea does not dictate the conclusion that they did not
specifically found to have intended to cause the death of           find Eastman’s testimony persuasive. First, in denying the
another”). The prosecution offered virtually no evidence            motion summarily, the panel stated, “The Court took the
regarding intent other than its contention that Stumpf shot         matter under advisement and after having considered the
Mrs. Stout. Had the prosecution’s alternate theory been heard       same, does overrule the Motion to Withdraw Former Plea and
by the three-judge panel, there is a reasonable probability that    the Alternative Motion to Set Aside the Sentence Imposed.”
it would have found Stumpf guilty of something less than            Because the court gave no basis for its ruling, the denial of
aggravated murder.                                                  relief could have been made on any number of grounds; it
                                                                    would be impossible to divine its reasoning. Hence, the
   Moreover, there is more than a reasonable probability that       panel’s rejection of Stumpf’s motion does not negate the
the three-judge panel would not have sentenced Stumpf to            conclusion that, had the prosecution’s alternate theory been
death had the prosecution not employed inconsistent and             before the panel at a sentencing proceeding, there is a
irreconcilable theories. In explaining its reasoning for finding    reasonable probability that the panel would not have
that the aggravating factors in Stumpf’s case outweighed the        sentenced him to death. Second, only two of the three judges
mitigating factors (and therefore that Stumpf deserved the          on the original panel were still alive when Stumpf brought his
death penalty), the court’s first pronouncement was that it had     motion. Stumpf’s contention that his motion should have
“f[oun]d beyond a reasonable doubt that the Defendant was           been heard by three judges was rejected by the Ohio Supreme
the principal offender in count one of the indictment,” i.e., the   Court:
aggravated murder charge. In turn, this finding prevented the
panel from concluding that Stumpf was not the principal               R.C. 2945.06 expressly provides that “[t]he judges or a
offender, which would have been “a powerful mitigating                majority of them may decide all questions of fact and law
factor.” State v. Green, 90 Ohio St. 3d 352, 363                      arising upon the trial. . . .” Unanimity is mandated only
(2000)(noting that “[v]ery few death sentences have been              when the panel finds a defendant guilty or not guilty.
approved against persons who were not the principal                   Whether appellant was entitled to withdraw his guilty
offender”). In fact, during the hearing on Stumpf’s motion            plea or to a new sentencing hearing were questions of
to withdraw his guilty plea, one of the original panel                law, properly determined by a majority of the panel.
members, Judge Bettis, stated:
                                                                    State v. Stumpf, 32 Ohio St. 3d 95, 105 (1987).
  [I]f we had not been satisfied that Stumpf was, in fact,
  the trigger man, the principal offender. . . that may very          Under Ohio Rev. Code § 2945.06, then, only one judge’s
  well have had an effect upon this Court’s determination           opinion was required to deny Stumpf’s motion. However,
No. 01-3613                           Stumpf v. Mitchell     43    44    Stumpf v. Mitchell                           No. 01-3613

under the same provision, unanimity was required as to                                   ______________
questions of guilt and penalty. Because the third judge on
Stumpf’s panel died before the prosecution’s alternate theory                               DISSENT
and Eastman’s testimony came to light, the trial court’s denial                          ______________
of Stumpf’s motion can prove nothing as to whether that third
judge, at the factual basis or mitigation hearings, would have       BOGGS, Chief Judge, dissenting. The court has reversed
been persuaded by Eastman’s testimony, and the state’s             the district court’s denial of a writ of habeas corpus on two
reliance on it, that Stumpf should either not have been found      grounds: that Stumpf’s guilty plea was involuntary and
guilty of aggravated murder, or should not have received the       unknowing, and that his due process rights in his own trial
death penalty.                                                     and sentencing were violated by the state’s later use of
                                                                   evidence against another person. I disagree with both of these
   Finally, as petitioner points out, Ohio courts have held that   conclusions, and therefore respectfully dissent from the
reweighing of aggravating and mitigating circumstances by a        granting of the writ of habeas corpus.
higher court is not a cure for errors in the sentencing process,
where the result of the weighing process, had the correct                                         I
factors been present, is unknown. State v. Davis, 28 Ohio St.
3d 361, 372 (1988) (“We cannot accept independent review              I begin with the second of the court’s two grounds, as I
as a cure in this particular action because we cannot know if      believe that is the more profoundly mistaken. The majority
the result of the weighing process by the three-judge panel        cites three cases from other circuits to buttress its theory that
would have been different had the impermissible aggravating        Ohio’s prosecution of Wesley, which took place in April
circumstance not been present.”).                                  1985, some seven months after Stumpf pleaded guilty and
                                                                   was sentenced to death, somehow violates Stumpf’s due
                    IV. CONCLUSION                                 process rights. None of the three are germane to this case.

  On the basis of the two claims addressed in this opinion,          In Thompson v. Calderon, a celebrated California death
that Stumpf’s guilty plea was not voluntary, knowing and           penalty case, the court vacated a death sentence because the
intelligent and that his due process rights were violated by the   prosecutor presented two mutually incompatible theories for
prosecution’s use of inconsistent, irreconcilable theories to      the rape-murder during contemporaneous trials of two
convict both him and his accomplice, we REVERSE the                defendants, Thompson and Leitch. Thompson v. Calderon,
district court’s decision and REMAND this case to the district     120 F.3d 1045 (9th Cir. 1997) (en banc) (plurality), vacated
court with instructions to issue the writ of habeas corpus in      on other grounds, 523 U.S. 538 (1998). During the pre-trial
the petitioner’s favor, unless the state elects to retry him       proceedings for both men, and in Leitch’s trial, the
within 90 days of the date of entry of the conditional writ.       prosecutor’s theory was that Leitch killed the victim, his
Because we are granting Stumpf relief on both his involuntary      girlfriend, because he wanted to get back together with his ex-
plea and due process claims, we need not reach his remaining       wife; Thompson assisted him in the crime. Id. at 1055. In
arguments.                                                         Thompson’s trial, however, the prosecutor argued that
                                                                   Thompson had raped the victim and then killed her to cover
                                                                   up his act. He presented different jail house informants at
                                                                   each trial to bolster each contradictory theory. Id. at 1056.
No. 01-3613                            Stumpf v. Mitchell     45    46       Stumpf v. Mitchell                             No. 01-3613

The Ninth Circuit held that this shift in arguments violated a      Eastman, and the forensic evidence suggested that Eastman’s
prosecutor’s duty to discover the truth and that he was             statement was not airtight. A cursory comparison of the facts
improperly trying to secure convictions for their own sake.         to those in Thompson therefore reveals that the California
Thompson, 120 F.3d at 1058-59; see, e.g., Berger v. United          case has little application to our case.1
States, 295 U.S. 78, 88 (1935) (stating that the government’s
fundamental interest in a criminal prosecution is “not that it         In Drake v. Kemp, an Eleventh Circuit case, the majority
shall win a case, but that justice shall be done”). It also found   remanded for a new trial because the burden of proof was
that Thompson, who was tried first, was prejudiced due that         improperly shifted to the defendant and the prosecutor
the fact that “[o]nly in Thompson's trial did the prosecutor        violated the defendant’s rights during his closing arguments
change the theory and the arguments [from those presented in        in the sentencing phase. Drake v. Kemp, 762 F.2d 1449 (11th
the pre-trial hearing], and offer facts that directly conflicted    Cir. 1985) (en banc). A single concurring judge argued that
with the underlying premise of the charges he brought.”             Drake’s Fourteenth Amendment rights had been violated.
Thompson, 120 F.3d at 1059.                                         The prosecutor, in trials that were a year apart, argued in one
                                                                    instance that a co-defendant must have committed the murder
   Distinguishing Thompson from the case before us is not           alone and, after having secured a conviction, argued that same
difficult, however. First of all, the prosecutor in Thompson        person was not strong enough to commit the crime, and
pursued the two mutually incompatible theories of the murder        therefore Drake must have helped. The concurring judge
at contemporaneous trials after joint pre-trial proceedings, and    concluded that it “seems inescapable that the prosecutor
deliberately chose witnesses who would tell the conflicting         obtained Henry Drake's conviction through the use of
story that he needed to convict each defendant. Knowingly           testimony he did not believe; bringing this case under the
putting on false evidence is prosecutorial misconduct that          logical if not actual factual framework of . . . Napue.” Drake,
violates the Due Process Clause. Napue v. Illinois, 360 U.S.        762 F.2d at 1479 (Clark, J. specially concurring). Drake
264, 269 (1959). Nothing in this case indicates that the            therefore does not further Stumpf’s case either: a concurring
prosecutors deliberately presented false evidence: Stumpf           opinion that turns on the prosecutor’s inferred knowledge that
pleaded guilty to aggravated murder with the specification of       he was presenting false evidence does not comport with the
killing a witness and attempted aggravated murder with a            facts in this case.
firearm. The State had every reason to believe his over-all            The last case cited by the majority, Smith v. Groose, 205
admission of responsibility. It was under no obligation,            F.3d 1045 (8th Cir. 2000), is equally unconvincing. That case
however, to accept at face value his assertion that he did not      involved two groups of robbers, the first of which, when
actually pull the trigger, especially in light of contradictory     preparing to burglarize a house, discovered the second
forensic evidence, such as the fact that a .25-caliber weapon       already in the process of stealing the homeowner’s
killed Mrs. Stout, the same caliber as Stumpf’s gun.                possessions. The two groups joined forces, and at some point
  Nor did the prosecutor in Thompson collect new evidence           during the crime the homeowners were murdered. Id. at
between trials; he simply manipulated the facts that he had.
In contrast, Wesley’s trial took place seven months after                1
Stumpf pleaded guilty, during which time informant Eastman                It is worth noting that constitutional claim made in Thompson
told prosecutors that Wesley confessed that he murdered             ultimately did not prevent the defendant’s execution on July 14, 1998.
                                                                    Calderon v. Thompson, 523 U.S. 538, 566 (1998) (reinstating the mandate
Mrs. Stout. However, Wesley denied having confessed to              denying hab eas relief).
No. 01-3613                          Stumpf v. Mitchell     47    48       Stumpf v. Mitchell                                No. 01-3613

1047. The leader of the first group, Anthony Lytle, provided         Groose does not “hold that prosecutors must present
varying accounts of what happened, alternately claiming that      precisely the same evidence and theories in trials for different
the head of the second group, Michael Cunningham, killed          defendants. Rather [it] hold[s] only that the use of inherently
the couple and that one of his (Lytle’s) cohorts, James           factually contradictory theories violates principles of due
Bowman, was the murderer. Id. at 1047-48. The state               process.” Id. at 1052. The majority remarkably expands this
convicted Jon Keith Smith, another member of Lytle’s group,       holding to conclude that evidence in a second case that
for felony-murder based on his association with purported         contradicts a guilty plea in an earlier case can implicate due
fellow gang member Bowman, who was argued to be the               process rights. Stumpf pled guilty after a colloquy in which
actual killer. Four months later, the state then successfully     he indicated that he understood that he was waiving certain
prosecuted Cunningham for the same murders, based on              constitutional rights. A defendant’s guilty plea is an
Lytle’s other story that Cunningham had already killed the        “admission that he committed the crime charged against
couple when Lytle and his friends entered the house. Id. at       him.” North Carolina v. Alford, 400 U.S. 25, 32 (1970).
1048.                                                             Nothing in the record suggests that the prosecutor was remiss
   The Eighth Circuit ultimately granted Smith a writ of          in relying on Stumpf’s acknowledgment of guilt. See
habeas corpus because the state’s prosecution of Cunningham       Dickerson v. United States, 530 U.S. 428, 450 (2000) (Scalia,
violated Smith’s due process rights. Ibid. Again, the crux of     J., dissenting) (observing that if a defendant voluntarily
the case was the deliberate presentation of false evidence: “In   acknowledges wrong-doing, the “Constitution is not . . .
short, what the State claimed to be true in Smith's case it       offended by a criminal's commendable qualm of conscience
rejected in Cunningham's case, and vice versa.” Id. at 1050.      or fortunate fit of stupidity).2 Therefore, I do not see any
Only a showing of this kind of prosecutorial misconduct           grounds on which to base an allegation that the prosecution
could support a claim, dubious as it might be, that Stumpf’s      skewed the same set of facts in two different trials in order
constitutional rights were retroactively violated.                achieve two mutually incompatible guilty verdicts. This case
                                                                  has little or no similarity with the facts of Thompson, Drake,
   Although this court mentions the prosecution’s knowledge       and Groose.
of Eastman’s subsequent statement concerning Wesley’s
alleged confession to being Mrs. Stout’s killer, the court’s         Far more instructive is the Ninth Circuit’s quite recent
decision does not rest on this knowledge. It is undisputed that   decision in Shaw v. Terhune, 353 F.3d 697 (9th Cir. 2003).
the prosecution did not know of Eastman’s statement at the        The court held that imposing sentence enhancements on two
time of Stumpf’s conviction and sentencing. Nothing               defendants for personal use of a firearm during an attempted
indicates that the prosecution cherry-picked facts in order to    robbery and assault on a restaurant manager was not a
confirm Stumpf’s guilty plea in the evidentiary hearing. The
majority does not argue that the prosecution was under any             2
obligation to confess error in Stumpf’s post-conviction                 Even assuming, arguendo, that the majority is correct that Stumpf
                                                                  pled guilty based on substandard legal advice, it does not follow that
proceedings or appeals, nor even to bring Eastman’s               accepting the acknowledgment of guilt amounts to prosecutorial
statement to Stumpf’s attention. There is simply no               misco nduc t, the prerequisite for finding a violation of Stump f’s
prosecutorial misconduct in this case that could retroactively    constitutional rights. The majority argues that the plea was no t voluntary,
implicate Stumpf’s due process rights.                            a conclusion I ad dress infra, but the validity of the plea is an entirely
                                                                  different matter. H owever flawed a d efendant’s guilty ple a might be, it
                                                                  cannot constitute a contradictory prosecutorial theory of guilt, as required
                                                                  in Groose.
No. 01-3613                            Stumpf v. Mitchell     49    50    Stumpf v. Mitchell                           No. 01-3613

violation of due process, although the testimony clearly            only lightly on the court’s resolution of the question of
indicated that only one perpetrator had held a gun to the           “whether there is a reasonable probability that the
manager’s head. Id. at 701-02. When the first defendant,            prosecutor’s use of inconsistent, irreconcilable theories
Shaw, learned of the conviction and sentence of his                 rendered the conviction unreliable.” (Maj. Op. at 40).
accomplice three years later, he filed a habeas petition, citing    Nothing that occurred in Stumpf’s proceeding rendered the
the California Court of Appeals decision upholding Watts’s          conviction unreliable. At most, the existence of Eastman’s
sentence which stated: “Indeed, the evidence adduced at trial,      statement could be argued to have rendered the conviction
which presumably was available to the prosecutor prior to           unreliable, but then our analysis would simply be that of any
trial, tends to support the conclusion that the jury in [Shaw’s]    newly discovered evidence, which proceeds against a more
trial was mistaken.” People v. Watts, 76 Cal. App. 4th 1250,        difficult background and which the court does not undertake.
1259-61 (1999) (quoted in Shaw, 353 F.3d at 701) (bracket           United States v. O’Dell, 805 F.2d 637, 640 (6th Cir. 1986)
added in Shaw).                                                     (“Motions for anew trial based on newly discovered evidence
   However, the Shaw court distinguished its case from              are disfavored.”); see, e.g., Herrera v. Collins, 506 U.S. 390,
Thompson, pointing to the fact that the prosecutor did not          400 (1993) (stating the rule that habeas relief is not the proper
manipulate evidence – the same crucial distinction that is          remedy for a claim of judicial error based on newly
present in our case. Shaw, 353 F.2d at 702. Ambiguous               discovered evidence, absent some constitutional flaw in the
evidence is not false evidence; “regrettable” tactics are not       trial proceedings). It would indeed be bizarre if Eastman’s
necessarily unconstitutional. Id. at 703-04. The fact of the        statement could not undermine Stumpf’s conviction by its
matter is that no one but Wesley and Stumpf know who shot           own force, but introducing it into another proceeding could do
Mrs. Stout. The State is entitled to put on the available           so. Following our court’s decision, a prosecutor faced with
evidence to convince the finder of fact of guilt. As long as it     the same dilemma in the future would be well advised not
does so in a good faith manner, without manipulating or             only to eschew reliance upon such potentially contradictory
selecting out critical evidence, due process is not violated.       evidence in later proceedings, but presumably prevent any
                                                                    other prosecutor from doing so. He or she might even be
   The Shaw court also speculated that if there were a              forced deceitfully to disclaim a belief that a jury was entitled
constitutional violation, that Watts, the second defendant,         to hear such evidence. In sum, whatever the result might be
rather than Shaw, would be the one who could argue the              were Wesley bringing the claim, I cannot agree to the
point. Id. at 704, n. 5. Similarly, I could understand a court      principle of retroactive unconstitutionality propounded in this
accepting Wesley’s claim that the prosecution could not             case.
honestly present evidence in his case that contradicted what
the government had relied upon previously (a type of                                               II
“prosecutorial estoppel”), or even that it could not present           With respect to Stumpf’s claim attacking his guilty plea,
evidence that contradicted a position it was taking elsewhere.      the court’s opinion appears to take no notice of the benefit
However, none of those theories can retroactively render            that Stumpf in fact gained from pleading guilty. He first
unfair the fundamentally fair proceedings that Stumpf               waived a jury trial, opting to contest the charges before a
received.                                                           three-judge panel. He then pled guilty in return for the
   Having indicated that I believe it is logically impossible for   prosecution dropping some charges and specifications. It is
Stumpf’s claim to succeed under these circumstances, I touch        axiomatic that acceptance of responsibility decreases the
                                                                    chances that the death penalty will be imposed. The
No. 01-3613                          Stumpf v. Mitchell     51    52   Stumpf v. Mitchell                          No. 01-3613

sentencing court had three choices in sentencing Stumpf: life     thought we would be able to make at this stage.” It made the
without parole for twenty years; life without parole for thirty   argument. The three-judge panel heard and considered it.
years; and death. It made sound strategic sense for him to act    They simply were not persuaded.
in a way that would encourage the judges to choose one of            Finally, it is true that Stumpf denied that he actually shot
the first two options.                                            Mrs. Stout. Nevertheless, he knew that by pleading guilty, he
   Once Stumpf pled guilty, he was entitled to an evidentiary     would only be able to argue that Wesley in fact committed the
hearing before a three-judge panel to confirm that the            murder as part of the mitigation phase of the proceedings.
evidence in the case supported his plea. Ohio Rev. Code           The majority asserts that there is evidence of a “serious
Ann. § 2945.06. Under one strategic view of the facts, the        misunderstanding,” (Maj. Op. at 23), between the judge and
panel might have been less likely than a jury to render a death   Stumpf’s lawyers. But no one was denying that Stumpf was
verdict because it would have grasped the legal theory behind     involved in the murder of Mrs. Stout. His lawyers were
Stumpf’s position that, while guilty of Mrs. Stout’s murder,      laying the groundwork to argue that Stumpf was not the
he was not actually the shooter, and therefore did not deserve    triggerman and therefore did not deserve the death penalty.
the death penalty. Stumpf was arguably hoping for another         Stumpf would certainly be anxious to make that argument,
benefit, namely the dismissal of the remaining specifications     and it is hardly surprising that, not knowing the precise point
to the charges against him that made him eligible for the         in the proceedings that it would be relevant, he would want to
death penalty. In Ohio “[i]f the indictment contains one or       double-check that he would have an opportunity to argue this
more specifications, and a plea of guilty or no contest to the    mitigating factor.        The majority simply misinterprets
charge is accepted, the court may dismiss the specifications      Stumpf’s caution as confusion.
and impose sentence accordingly, in the interests of justice.”       Under these circumstances, it appears to me that Stumpf
Ohio R. Crim. P. 11(C)(3). Therefore, the majority is             understood his legal strategy, executed it according to plan,
incorrect that Stumpf received no benefit at all from pleading    and got exactly the opportunities that he bargained for,
guilty: he significantly improved his chances to avoid the        making the grant of a writ of habeas corpus unwarranted.
death penalty, although in the end his strategy did not yield     Therefore, I respectfully dissent.
the desired result.
   Despite the court’s extensive exegesis of the “confusion” at
the plea hearing itself, the events that took place at the
sentencing hearing apparently were neither a surprise nor a
disappointment, in the beginning, to the defendant or his
counsel. In fact, the defense attorney stated that the
prosecution’s rendition of the plea agreement was accurate,
(Maj. Op. at 16). No objection was made to the course of the
sentencing hearing, nor was there any effort to withdraw the
guilty plea at that point. It was only after the Eastman
statement came to light that Stumpf attempted to withdraw his
guilty plea. Similarly, at the “factual basis hearing” before
the three-judge panel the defense did not attempt to say:
“Wait a minute, we aren’t able to make an argument that we
