Awkal v. Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0214p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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ABDUL AWKAL,

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Petitioner-Appellant,

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No. 01-4278

v.

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Respondent-Appellee. -

BETTY MITCHELL, Warden,

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 00-00252—Donald C. Nugent, District Judge.

Argued: December 2, 2009

Decided and Filed: July 23, 2010

Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY,

GILMAN, GIBBONS, ROGERS, SUTTON, McKEAGUE, GRIFFIN, KETHLEDGE,

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and WHITE, Circuit Judges.

GILMAN, J., delivered the opinion of the court, in which BATCHELDER, C.J.,

BOGGS, GIBBONS, ROGERS, SUTTON, McKEAGUE, GRIFFIN, KETHLEDGE,

and WHITE, JJ., joined, with WHITE, J. (p. 26), also delivering a separate concurring

opinion. MARTIN, J. (pp. 27-40), delivered a separate dissenting opinion, in which

MOORE, COLE, and CLAY, JJ., joined.

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COUNSEL

ARGUED: R. Brian Moriarty, Cleveland, Ohio, for Appellant. Benjamin C. Mizer,

OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

ON BRIEF: Kevin M. Cafferkey, Thomas F. O’Malley, Jr., LAW OFFICES,

Cleveland, Ohio, for Appellant. Benjamin C. Mizer, David M. Lieberman, OFFICE OF

THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

*

Judge Cook recused herself from participation in this case.

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No. 01-4278 Awkal v. Mitchell Page 2

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Abdul Awkal was convicted by an

Ohio jury on two counts of aggravated murder for the shooting deaths of his wife and

brother-in-law in 1992. The jury recommended a sentence of death, and the trial court

sentenced Awkal accordingly. Awkal now appeals the district court’s denial of his

petition for a writ of habeas corpus.

In his petition, Awkal argues that (1) his counsel was ineffective at the guilt

phase of his trial for calling a psychiatrist who directly contradicted the defense’s theory

of not guilty by reason of insanity, (2) his counsel was ineffective at the penalty phase

for failing to introduce records of his previous involuntary hospitalization and for failing

to present testimony of competent mental health experts, and (3) the prosecutor’s

statement in closing argument about Awkal’s being able to “walk out the door” if found

not guilty by reason of insanity was prosecutorial misconduct. For the reasons set forth

below, we AFFIRM the judgment of the district court in denying Awkal’s petition for

habeas relief.

I. BACKGROUND

In affirming both Awkal’s murder conviction and death sentence on direct

appeal, the Supreme Court of Ohio provided a thorough description of the relevant facts

and subsequent trial:

On January 7, 1992 . . . Abdul Hamin Awkal, shot and killed his

estranged wife, Latife Awkal, and his brother-in-law, Mahmoud Abdul-

Aziz, at the Family Conciliation Services Department of the Cuyahoga

Domestic Relations Court. [Awkal] was captured in the courthouse

basement not far from where the shooting took place.

Awkal arrived in the United States from Lebanon about 1984, when he

was twenty-four. He lived with family members in Detroit, Michigan,

and worked as a dishwasher and gas station attendant. In 1985, Awkal

suffered a mental breakdown at the gas station after he believed he had

been accused of theft by his employer. He became hysterical, cursing and

No. 01-4278 Awkal v. Mitchell Page 3

breaking things, vomited and then collapsed. He was taken to Detroit

Medical Center in a straitjacket. Awkal was apparently released into his

brother’s custody later that same day, but disregarded instructions to

follow up with a psychiatrist.

Later, Awkal began working at a General Motors factory in Michigan.

He was eventually transferred to the Chevrolet plant in Parma, Ohio. He

had difficulty sleeping during this period, and was prescribed medication

to help him sleep.

Awkal’s family arranged for him to meet his wife, Latife, after his arrival

in Cleveland. This type of arranged marriage was common in his Islamic

faith. Awkal’s need for sleeping pills diminished after he met his wife.

Awkal and Latife were married under Islamic law in March 1989 and

under Ohio law in April 1989. Later in 1989, Awkal went to Cleveland

Metropolitan General Hospital complaining of numbness down his side.

Although Awkal was again told to talk to a psychiatrist, he never did so.

Awkal and Latife had a daughter, Zaynab, born in September 1990.

On their honeymoon, Latife told Awkal she did not love him, but that she

understood that love would follow. He unsuccessfully attempted to

improve their relationship by opening a bank account for her, teaching

her to drive, encouraging her to attend school, and helping her parents

with various household tasks.

Latife and her brothers felt that Awkal was not a good Muslim. Awkal

did not spend sufficient time in daily prayer and he enjoyed music and

celebrating Christian holidays, such as Christmas. Latife and her brothers

did not listen to music, or celebrate Christian holidays, and prayed five

or six times a day. Latife’s brother, Mahmoud Abdul-Aziz, tried to teach

Awkal the tenets of their family’s Islamic faith, but Awkal viewed

Mahmoud’s actions as interference with his freedom, and believed that

he was harassed and threatened by Mahmoud because of his religious

beliefs.

Awkal’s marital life was dissolving. Latife spent many nights away from

Awkal and eventually asked for an Islamic divorce. According to Awkal,

a Muslim husband may divorce his wife merely by telling her, “I divorce

you, I divorce you, I divorce you.” Awkal granted her request on October

13, 1991, but then Latife agreed to remarry him under Islamic law. Latife

felt that she had been shamed and that her baby had been made

illegitimate by the divorce.

On October 16, 1991, Latife found out that she had contracted a venereal

disease from Awkal. The next day, Latife moved out of the marital home,

moved in with Mahmoud, and started divorce proceedings. A divorce

complaint and motions for spousal support, child support, visitation and

No. 01-4278 Awkal v. Mitchell Page 4

restraining orders were filed in October 1991. Latife talked of returning

to Lebanon with the baby.

Awkal was hurt by his family problems and sought counseling, but

declined medication. Awkal had counseling sessions four times in

November 1991, because he was depressed and suicidal. These feelings

were brought on by the divorce and Awkal’s belief that Latife’s brothers

and their religion had interfered with his life and his marriage. Awkal’s

psychological records reflect that he was very angry with Latife and her

brothers because of the divorce.

On November 8, 1991, Awkal bought a nine-millimeter semi-automatic

pistol, allegedly to defend himself from Latife’s brothers. The evening

of that same day and the morning of the next, Awkal called Latife and

her brother, Omar Abdul-Aziz, threatening to kill her and her entire

family if the divorce was not dismissed. Latife reported the call to her

divorce attorney, who sent a letter to Awkal’s attorney regarding the

threats.

Awkal attended hearings in his divorce case on December 10, 17, and 19,

1991, without incident. During this period, Awkal and Latife agreed to

a child visitation schedule and temporary child and spousal support. At

Latife’s insistence, the visitation order prohibited Awkal from

participating in any Christmas-related activities with the baby during his

visitation. Awkal also agreed that the family checking accounts,

containing approximately $4,800, which had been frozen by the domestic

relations court, were to be equally divided between Latife and Awkal.

A meeting was scheduled for 2:00 p.m. on January 7, 1992, at the Family

Conciliation Services Department, Room 52, located in the basement of

the old Cleveland courthouse. Latife came early to the meeting with her

brother, Mahmoud, and her baby. They waited in the hall outside for

Awkal to arrive.

Awkal arrived at the courthouse parking garage at 1:48 p.m. from

Michigan, where he had spent the weekend with relatives. On his person

were copies of the baby’s medical records, which had been checked out

from the treating HMO over a month earlier, and numerous childcare

supplies, including diapers, baby food, and clothing. Prior to the meeting,

Awkal wrote a check to his brother for nearly the entire contents of the

frozen checking accounts, and changed his address at the post office to

his brother’s house in Michigan.

Awkal confronted Mahmoud and Latife in the hallway at approximately

2:00 p.m. No harsh words or raised voices were heard from the hall

before the shooting. However, “panicky” voices were heard immediately

before the three entered Room 52. Awkal chased Latife and Mahmoud

No. 01-4278 Awkal v. Mitchell Page 5

into the room, where he shot his wife and her brother at close range. Five

shell casings were found inside the room; one shell casing was found in

the hall outside the room.

Awkal then picked up the baby from the bench outside the room and

walked quickly through the basement halls of the courthouse with her in

his arms. Several armed deputies confronted Awkal in the hallway.

Awkal pointed his gun at his head and then at his daughter’s head,

threatening to kill her and then himself. Awkal vowed that nobody was

going to take his baby.

When a deputy tried to grab Awkal’s gun, Awkal backed further down

the hall with the baby. While proceeding down the hall, Awkal was

confronted by another deputy, who attempted to disarm Awkal. Awkal

evaded this attempt, but was shot in the back while trying to escape.

When Awkal was taken into custody, his pistol was cocked, ready to fire,

and contained six live rounds (one in the chamber; five in the magazine).

Awkal also had another magazine containing thirteen rounds of live

ammunition in his coat pocket. The bullets retrieved from Mahmoud’s

body and from Room 52 were fired from Awkal’s gun.

At the hospital the next day, Awkal, after being advised of his Miranda

rights, told police that he had confronted Mahmoud in the hallway and

demanded that Mahmoud “profess that Allah was the only God.” When

Mahmoud did not do so, Awkal shot the victims. Awkal stated that he

thought that he had shot himself.

Awkal was indicted on two counts of aggravated murder with prior

calculation and design, including the multiple-murder death penalty

specification. He was also indicted on two counts of felonious assault,

including a firearm specification. Awkal pled “not guilty” and “not guilty

by reason of insanity” to the charges against him.

While awaiting evaluation by a court-appointed psychiatrist to determine

whether he was sane and competent to stand trial, Awkal reportedly had

hallucinations involving his wife, who spoke to him and told him to join

her. Two psychiatrists had examined Awkal at the county jail and found

him to be depressed and angry. Awkal was prescribed anti-depressant

and anti-anxiety drugs. These drugs did not stop him from having the

hallucinations, and he was prescribed different anti-psychotic and anti-

depressant medications.

Awkal was found sane at the time of the murders in the preliminary

sanity report. However, the severity of his depression rendered him

incapable of aiding with his defense, and the trial court found Awkal not

competent to stand trial. He was ordered to the Dayton Mental Health

Center, Forensic Unit, for treatment and further evaluation. During his

No. 01-4278 Awkal v. Mitchell Page 6

stay in Dayton, Awkal continued to receive anti-psychotic medication,

but at greater levels. He was also placed on anti-depressant and anti-

anxiety medications. On September 3, 1992, the trial court found Awkal

competent to stand trial, but returned him to Dayton for further treatment

until the trial started.

In October 1992, a jury was impaneled. During the trial, defense counsel

complained to the court that Awkal’s condition had deteriorated and

suggested that a new competency evaluation be undertaken. The trial

court refused to have Awkal reevaluated, but stated that it would watch

Awkal closely to see that he was paying attention to the trial and helping

with his own defense. After the state closed its case in chief, the trial

court dismissed one of the felonious assault charges.

Several witnesses testified on Awkal’s behalf during the guilt phase. Dr.

Paul E. Hewitt, a psychologist, was called to give an opinion on the issue

of prior calculation and design. However, when the court learned that Dr.

Hewitt was not a licensed psychologist in Ohio, his testimony was

stricken from the record. Dr. Magdi S. Rizk, the psychiatrist who

conducted Awkal’s pretrial sanity and competency evaluations, testified

that Awkal was sane at the time of the murders. Finally, Dr. Eileen S.

McGee, a psychiatrist awaiting board certification, testified that Awkal

was insane at the time of the shooting, that he did not know what he did

was wrong, and that Latife and Mahmoud had provoked the incident.

Awkal testified on his own behalf. He stated that Mahmoud and Latife’s

other brothers were religious fanatics, and had harassed him and

interfered in his life. Awkal testified that he purchased the gun to protect

himself from Latife’s brothers, who had threatened him and, on one

occasion, forced him to kneel down before them, swearing allegiance to

their religious sect. He denied threatening Latife or her brother.

Awkal stated that on the morning in question he met Latife in the hallway

of the courthouse, and asked her to come back to him. She refused, and

he went back to his car to get his gun, intending to kill himself in front

of Latife to make her regret her decision to divorce him. When Awkal

returned he asked Latife if he could hug his daughter one last time. Latife

agreed, but Mahmoud confronted Awkal, stating that the baby was not

Awkal’s, and that Awkal would never see her again. Awkal testified that

Mahmoud’s face “turn[ed] into that of a monster” and that the walls then

collapsed. The next thing Awkal knew, he awoke in the hospital.

On rebuttal, the prosecution presented Dr. Edward Dutton, a forensic

psychiatrist, who testified that Awkal was malingering, that he

understood what he had done was wrong, and that he had acted out of

anger.

No. 01-4278 Awkal v. Mitchell Page 7

The jury found Awkal guilty as charged on the aggravated murder

charges, but not guilty on the remaining felonious assault charge.

Several witnesses, including Drs. Paul Hewitt, Eileen McGee, and Salah

Samy, testified on Awkal’s behalf during the penalty phase. Dr. Hewitt

testified that Awkal’s problems were part of a life-long anxiety problem,

and believed that Mahmoud’s threats and religious fanaticism were

extremely strong provocation and had facilitated the shooting. Dr. Hewitt

believed that Awkal’s reaction was spontaneous and that he did not have

the ability to conform his conduct to the requirements of Ohio law when

he committed the murders.

Dr. McGee testified that the religious interference of Mahmoud and his

brothers was a strong provoking force in the murders. Dr. McGee also

testified that Awkal’s reaction was triggered by Mahmoud’s provocation,

and that Awkal did not have the ability to conform his conduct to the

requirements of the law of Ohio when the murders occurred.

Dr. Samy, Awkal’s treating psychiatrist in Dayton, testified that Awkal

was not malingering, and that he lost his judgment and control and

awareness of what he was doing just prior to the murders. Dr. Samy

testified that Awkal was not sane at the time of the murders. Dr. Samy

also believed that Latife and Mahmoud facilitated the incident.

Awkal gave an unsworn statement, in which he explained his childhood

situation, his religious problems with his brothers-in-law, and how these

religious problems caused his marital problems. He also talked about

how after Mahmoud’s face became that of a monster, the walls collapsed

down upon him. The next thing Awkal knew, he woke up in the hospital.

The prosecution rebutted this testimony with Dr. Edward Dutton, who

believed that Awkal was malingering.

The jury found Awkal guilty of the aggravated murder charges and

recommended death. The trial court agreed and imposed the death

penalty. The court of appeals affirmed the decision of the trial court.

State v. Awkal, 667 N.E.2d 960, 963-66 (Ohio 1996).

After the Supreme Court of Ohio affirmed Awkal’s conviction and sentence on

direct appeal, id. at 966-73, the U.S. Supreme Court denied certiorari, Awkal v. Ohio,

519 U.S. 1095 (1997). The Ohio state courts subsequently denied Awkal’s petition for

post-conviction relief. State v. Awkal, No. 73267, 1998 WL 827585 (Ohio Ct. App. Nov.

25, 1998); State v. Awkal, 708 N.E.2d 209 (Ohio 1999).

No. 01-4278 Awkal v. Mitchell Page 8

In March 2000, Awkal filed a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254 in the United States District Court for the Northern District of Ohio,

raising 22 grounds for relief. The district court denied Awkal’s petition and further

determined that there was no basis to grant a certificate of appealability. This court

ultimately granted a certificate of appealability on his claims of ineffective assistance of

counsel regarding the selection and testimony of mental health experts at the guilt and

penalty phases of his trial, as well as for a claim of prosecutorial misconduct arising

from the prosecutor’s closing argument.

II. STANDARD OF REVIEW

Our review of the district court’s decision to dismiss Awkal’s § 2254 petition is

de novo, but we review any factual findings by the court under the clear-error standard.

See Sherwood v. Prelesnik, 579 F.3d 581, 584 (6th Cir. 2009) (citation omitted). Awkal

filed his habeas petition in March 2000, so we review the findings of the Ohio state

courts under the standards set forth in the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA):

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d).

A federal court “may not issue the writ simply because that court concludes in

its independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly. Rather, that application must also be

unreasonable.” Willams v. Taylor, 529 U.S. 362, 411 (2000). This burden is a

No. 01-4278 Awkal v. Mitchell Page 9

demanding one. A state court’s application of federal law is unreasonable “only if

reasonable jurists would find it so arbitrary, unsupported or offensive to existing

precedent as to fall outside the realm of plausible credible outcomes.” Barker v. Yukins,

199 F.3d 867, 872 (6th Cir. 1999).

III. INEFFECTIVE ASSISTANCE DURING THE GUILT PHASE

In order to establish the ineffective assistance of counsel, Awkal must first show

that his “counsel’s representation fell below an objective standard of reasonableness.”

See Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, Awkal must establish

prejudice by showing “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. This too is a high burden to meet:

Judicial scrutiny of counsel’s performance must be highly deferential.

It is all too tempting for a defendant to second-guess counsel’s assistance

after conviction or adverse sentence, and it is all too easy for a court,

examining counsel’s defense after it has proved unsuccessful, to

conclude that a particular act or omission of counsel was unreasonable.

A fair assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time. Because of the

difficulties inherent in making the evaluation, a court must indulge a

strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome

the presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.

Id. at 689 (internal citations and quotation marks omitted).

Applying the Strickland standard, the Supreme Court of Ohio rejected Awkal’s

contention that his counsel was ineffective regarding the presentation of mental health

experts during the guilt phase of the trial:

Counsel called Dr. Hewitt as an expert witness to testify during the guilt

phase on the issue of prior calculation and design. . . . Trial counsel

knew of Dr. Hewitt’s lack of qualifications before he called Dr. Hewitt

No. 01-4278 Awkal v. Mitchell Page 10

to the stand. Counsel made a tactical decision to try to get Dr. Hewitt’s

testimony into evidence. He failed. This was not a good tactical

decision, but it does not rise to the level of ineffective assistance of

counsel.

Counsel also called Dr. Rizk to testify during the guilt phase. Dr. Rizk

is adequately qualified and has testified in numerous other similar

circumstances. However, Dr. Rizk testified that Awkal was sane at the

time of the murders. This testimony obviously damaged Awkal’s

affirmative defense that he was not sane when he committed the murders.

Yet, portions of Dr. Rizk’s testimony assisted the defense, including

testimony about religion as a basis for Awkal’s marital problems, his

medication levels, and his hallucinations.

Counsel concluded Awkal’s affirmative defense by calling Dr. McGee,

a psychiatrist. Dr. McGee was not yet board certified in psychiatry, had

no experience in forensic psychiatry, and had been practicing psychiatry

for only one year. Dr. McGee testified that Awkal, as evidenced by his

hallucinations involving his wife in his cell in Dayton, had broken with

reality at the time of the murders. . . . Although her opinion may have

been diminished by her lack of certification and inexperience, Dr. McGee

supported Awkal’s affirmative defense.

Thus, of the three doctors called to testify for the defense, the testimony

of one was stricken from the record, one gave an opinion contradicting

Awkal’s affirmative defense but also gave other evidence that assisted

that defense, and one testified that Awkal was not mentally responsible

for his acts.

Awkal’s counsel obviously had some plan in mind. Dr. Hewitt

conceivably could have been allowed to testify as an expert witness, and

Dr. Rizk did make an earlier finding that Awkal was incompetent to

stand trial. In hindsight it appears that Awkal may have been better

served to call only Dr. McGee during the guilt phase, and call her and the

other defense doctors during the penalty phase, if the trial would reach

that stage. However, the end result of tactical trial decisions need not be

positive in order for counsel to be considered “effective.”

State v. Awkal, 667 N.E.2d 960, 971-72 (Ohio 1996).

A. Alleged deficient representation

Awkal argues that he has satisfied the first Strickland requirement because Dr.

Rizk’s testimony “destroy[ed] any chance Awkal had for being found not guilty by

reason of insanity.” But Dr. Rizk’s damaging testimony must be viewed in the context

No. 01-4278 Awkal v. Mitchell Page 11

of the overall trial circumstances and in light of the two other expert witnesses presented

by defense counsel during the guilt phase of the trial. Even though the trial court struck

the testimony of the first witness, Dr. Paul Hewitt, upon learning that he was not a

licensed psychologist in Ohio, Dr. Hewitt was allowed to testify later at the penalty

phase of the case. And prior to the striking of his testimony, counsel elicited favorable

testimony from Dr. Hewitt about Awkal’s unhappy family life and the physical abuse

by his father. According to defense counsel, Dr. Hewitt would have continued on to

opine (if he had been permitted to do so) that Awkal had a history of depression and that,

on the day of the shooting, he “exploded” and had a sudden fit of rage.

Although Dr. Hewitt’s testimony was ultimately not allowed at the guilt phase

of the trial, he had qualifications sufficient to opine on Awkal’s mental state, including

a bachelor’s, master’s, and Ph.D. in psychology. Dr. Hewitt was the director of a

company that contracted with various agencies, including the Federal Probation

Department, the Internal Revenue Service, and the Ohio Department of Mental Health

and Development Disabilities, to do psychological evaluations, mental status reports,

and testing of prisoners set for presentence release. And Dr. Hewitt had met with Awkal

three times.

Moreover, the Supreme Court of Ohio stated on direct review that the trial court

had the discretion to permit Dr. Hewitt’s testimony. Indeed, the Court recognized that

“Dr. Hewitt had experience that may have been helpful to the jury.” State v. Awkal, 667

N.E.2d 960, 968 (Ohio 1996). The Court’s opinion further indicates that there was no

hard and fast rule clearly barring Dr. Hewitt from testifying, even though it ultimately

found that the trial court did not abuse its discretion in prohibiting the testimony. So

given Dr. Hewitt’s qualifications and the lack of a rule automatically barring him from

testifying, we find no fault with defense counsel’s attempt to present him as an expert

witness during the guilt phase.

Dr. Magdi Rizk testified next. On direct examination by defense counsel, Dr.

Rizk informed the jury that Awkal had previously been found incompetent to stand trial.

The doctor also testified about the religious friction that permeated Awkal’s interactions

No. 01-4278 Awkal v. Mitchell Page 12

with his wife and her brothers. Dr. Rizk’s testimony on direct examination was

favorable to Awkal. But, on cross-examination by the prosecutor, Dr. Rizk contradicted

the defense’s insanity theory when he testified that, in his opinion, Awkal was sane at

the time of the killings.

Finally, Dr. Eileen McGee testified. After Dr. McGee graduated medical school

and completed a two-year residency in pediatrics, she was a practicing pediatrician for

five years. She then completed four years of additional medical training focused solely

on psychiatry, and two of these years were focused on adult psychiatry. She belonged

to numerous psychiatric professional organizations. At the time of the trial, Dr. McGee

had closed her pediatric practice, had passed the written test to become board-certified

in psychiatry, was awaiting the results of the oral examination, and had been practicing

psychiatric medicine for over a year. She testified that seventy percent of her current

patients were adults.

After discussing her qualifications, Dr. McGee opined that Awkal was insane at

the time of the shootings and had no way of understanding that his actions were wrong.

Dr. McGee was also of the opinion that Latife and Mahmoud had provoked the incident.

Her testimony unambiguously supported the defense’s insanity theory. Thus, counsel

did not simply put Dr. Rizk on the stand, attempt to get a bit of favorable testimony from

him, and then unreasonably hope that the jury would disregard his ultimate conclusion.

Defense counsel instead sought to present multiple opinions that Awkal had a history of

serious mental problems and that he was insane at the time of the crime. We therefore

find the dissent’s characterization of the expert witnesses presented by Awkal’s counsel

as being part of a bad joke or analogous to an episode of The Three Stooges to be totally

unjustified.

The fact that defense counsel presented three expert witnesses to testify regarding

the insanity issue distinguishes the instant case from Combs v. Coyle, 205 F.3d 269 (6th

Cir. 2000), where this court held that Combs’s defense counsel was ineffective under a

pre-AEDPA standard of review, id. at 277 n.5. Combs’s counsel called only one expert

witness to testify regarding the sole defense theory—that Combs’s intoxication deprived

No. 01-4278 Awkal v. Mitchell Page 13

him of the ability to form an intent to kill. Id. at 287-88. The expert contradicted that

theory when he testified on cross-examination that Combs had acted purposefully and

intentionally. Id. at 287. We found that the expert’s testimony “was completely

devastating to the defense.” Id. at 288.

The only similarity of this case to Combs is that one expert witness—here, Dr.

Rizk—contributed testimony favorable to the defendant on direct examination, but

ultimately contradicted the defense’s insanity theory when cross-examined by the

prosecution. There the similarity ends. In the present case, Awkal’s counsel presented

three witnesses, two of whom squarely bolstered the insanity theory even if the

testimony of one of them—Dr. Hewitt—was ultimately stricken due to his lack of a

psychologist’s license in Ohio.

More importantly, Awkal’s counsel had reviewed Dr. Rizk’s sanity report prior

to the trial. That report plainly stated Dr. Rizk’s opinion that Awkal was sane at the time

of the crime. Defense counsel’s election to call Dr. Rizk notwithstanding their review

of the sanity report indicates that they had made a strategic decision to do so, however

questionable in hindsight. This makes their decision virtually unchallengeable. See

Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually unchallengeable.”); see also

Boyle v. McKune, 544 F.3d 1132, 1139 (10th Cir. 2008) (“[T]he decision of which

witnesses to call is quintessentially a matter of strategy for the trial attorney.”).

Defense counsel presumably believed that having Dr. Rizk discuss Awkal’s

initial lack of competency to stand trial, as well as various other mental and emotional

issues, would plant a seed of doubt regarding Dr. Rizk’s expected testimony that Awkal

was in fact sane at the time of the killings. Similarly, defense counsel may have been

trying to build up the credibility of Drs. Hewitt and McGee by showing the jury that all

three doctors agreed on certain issues, such as Awkal’s history of serious mental and

emotional problems, even though they disagreed as to his sanity on the precise date in

question.

No. 01-4278 Awkal v. Mitchell Page 14

Another reasonable explanation is that, knowing that the prosecution was going

to call Dr. Rizk anyway, Awkal’s counsel opted to call him as a witness to take some of

the “sting” out of his adverse opinion by being able to present his favorable testimony

first and by incorporating the negative testimony into Awkal’s case-in-chief. See F. Lee

Bailey & Henry B. Rothblatt, Successful Techniques for Criminal Trials 249 (2d ed.

1985) (explaining that the presentation of damaging evidence as part of a party’s case-in-

chief takes “the sting out of such evidence”); id. at 248-49 (“It is always desirable in

planning one’s trial strategy to anticipate disclosures by the prosecution of highly

unfavorable and damaging evidence against the accused. . . . No matter how damaging

the evidence against the accused is, expose it. You can be sure that the prosecutor

will!”) (emphasis in original); see also Smith v. Spisak, 130 S. Ct. 676, 691 (2010)

(Stevens, J., concurring) (“[The State] defends [defense] counsel’s closing argument as

a reasonable strategic decision to draw the sting out of the prosecution’s argument and

gain credibility with the jury by conceding the weaknesses of his own case. I agree that

such a strategy is generally a reasonable one . . . .”).

Moreover, immediately after Dr. Rizk testified, Awkal himself took to the stand

to testify about the medications he was taking, his original intent to kill himself at the

courthouse, and the moment when he perceived that his brother-in-law changed into a

monster and the walls collapsed around him. Awkal’s testimony was thus consistent

with the favorable portion of Dr. Rizk’s testimony and directly rebutted the negative

portion, thereby giving credibility to Awkal to the extent that their testimony was

consistent and perhaps minimizing Dr. Rizk’s negative testimony.

This potential strategy—to obtain favorable information from Dr. Rizk and

attempt to minimize his unfavorable but inevitable testimony—would have been

bolstered by the fact that defense counsel attempted to present Dr. Rizk’s testimony in

between completely favorable expert witnesses. In ordering their presentation of

experts, defense counsel started with the favorable testimony of Dr. Hewitt and ended

with the favorable testimony of Dr. McGee. This would have been a sound strategy

because jurors are thought to remember best what they hear first and last. See Thomas

No. 01-4278 Awkal v. Mitchell Page 15

A. Mauet, Trial Techniques 114 (7th ed. 2007) (explaining that because jurors remember

best what they hear first and last, trial counsel should present unfavorable testimony in

between favorable testimony).

Moreover, if defense counsel had not called Dr. Rizk, the prosecution would have

done so during its rebuttal. The prosecution instead presented only the testimony of Dr.

Edward Dutton in rebuttal, who testified, based on a relatively brief evaluation, that

Awkal was sane at the time of the crime. If Dr. Rizk had been presented in rebuttal as

well, the last testimony that the jury would have heard would have been two doctors

emphasizing the same point. By calling Dr. Rizk as part of their case-in-chief, defense

counsel minimized this emphasis. Their decision to displace one of the prosecution’s

rebuttal witnesses seems strategic, particularly where Dr. Rizk gave some testimony that

inferentially supported Awkal’s insanity defense. Although the dissent asserts that Dr.

Rizk’s testimony on Awkal’s previous incompetence to stand trial was irrelevant to

whether Awkal was insane at the time of the crime, this evidence could have helped the

jury conclude that Awkal had an established history of mental illness and was not

malingering.

Alternatively, knowing that Dr. Rizk’s testimony would eventually be presented

to the jury, defense counsel might have wanted to expose this negative testimony as part

of Awkal’s case in order to bolster their credibility in the eyes of the jury. See Paul

Bergman, Trial Advocacy 236 (4th ed. 2006) (reasoning that bringing out weaknesses

during counsel’s presentation may cause the jury to view the counsel as credible and fair

and impress upon them that counsel has “nothing to hide”).

Whatever defense counsel’s reasoning, given their knowledge of Dr. Rizk’s

opinion on the insanity issue, their decision to call him as a defense witness rather than

waiting for him to appear as a witness for the prosecution suggests that the decision was

a strategic one. Defense counsel’s prior knowledge of Dr. Rizk’s opinion again

distinguishes this case from Combs. There, defense counsel admitted that he was

“surprised” when the expert testified that Combs was able to form an intent to kill.

Combs v. Coyle, 205 F.3d 269, 288 (6th Cir. 2000). This court recognized on appeal

No. 01-4278 Awkal v. Mitchell Page 16

that, “[a]lthough Combs’s counsel’s decision to present [the expert’s] testimony may be

considered a strategic one, it was a decision made without undertaking a full

investigation” and was therefore unreasonable. Id. Such was not the case here.

In this way, the instant case is more analogous to Morales v. Mitchell, 507 F.3d

916 (6th Cir. 2007), than to Combs. Morales’s sole defense was that he was not guilty

by reason of insanity because he was unable to form the intent to commit murder due to

his intoxication. Id. at 921. His defense counsel called a forensic psychologist who gave

some testimony that was favorable to Morales, but ultimately testified on cross-

examination that she did not believe that Morales had a viable voluntary-intoxication

defense because voluntary intoxication alone is not a basis for the insanity defense. Id.

at 936, 938. No other defense witness provided an alternative basis to justify Morales’s

conduct. Despite that, this court found that trial counsel’s decision to call the expert did

not constitute ineffective assistance of counsel, particularly because, “unlike Combs’s

counsel, Morales’s trial attorney fully ascertained his expert witness’s opinion before

trial.” Id. at 938.

The dissent assumes that because one of Awkal’s attorneys responded to an

inquiry by the trial court by saying “I don’t have a response at this time” when asked

why he was calling Dr. Rizk, there was no reason for his decision. During this exchange

with the judge, however, defense counsel went on to explain that he was not answering

because he was not “under a duty to respond to the prosecutor in a question and answer

way. I know of no duty that I have to respond . . . .” Moreover, regarding whether the

choice to call Dr. Rizk was a strategic one, defense counsel stated “I think the record will

clearly reflect that we have not only had [Dr. Rizk’s] report, but he’s testified in this

Court and as a result of his testifying he not only testified about his two reports, but he

also testified about other subject matters relating to his evaluations.” Counsel had

therefore considered Dr. Rizk’s involvement in Awkal’s case and contemplated that Dr.

Rizk would give testimony on subjects other than his ultimate sanity

conclusion—including Awkal’s prior incompetence to stand trial and difficult family

life.

No. 01-4278 Awkal v. Mitchell Page 17

When considered “in light of all the circumstances,” the Supreme Court of

Ohio’s assessment that defense counsel’s decision to call Dr. Rizk was not “outside the

wide range of professionally competent assistance,” see Strickland, 466 U.S. at 690, is

neither contrary to nor an unreasonable application of clearly established federal law.

See Williams v. Taylor, 529 U.S. 362, 411 (2000). Our conclusion is supported by the

Supreme Court’s caution that “a court must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id. at 689 (internal quotation marks

omitted). Awkal has not overcome this strong presumption and therefore cannot satisfy

Strickland’s deficiency standard.

B. Alleged prejudice

Even assuming for the sake of argument that Awkal had shown that the Supreme

Court of Ohio’s assessment of his counsel’s effectiveness was unreasonable, he still

cannot show that the Court’s conclusion that he had not satisfied the prejudice prong of

the Strickland ineffective-assistance test was also unreasonable. See Strickland, 466 U.S.

at 691; State v. Awkal, 667 N.E.2d 960, 971 (Ohio 1996). There is no dispute that Awkal

shot and killed his estranged wife and brother-in-law. The trial instead focused on

whether he was legally insane at the time of the crime, and the evidence overwhelmingly

indicates that he was not.

Awkal was furious at Latife and her brothers after she initiated the divorce. A

few weeks after the divorce proceedings started, Awkal bought a semi-automatic pistol.

He called Latife and her brother Omar on both the night of the purchase and the next

morning to declare that he would murder Latife’s entire family if she did not come back

to him. A month or so later, he checked out their baby’s medical files from the

pediatrician’s office. He also changed his address to his brother’s house and wrote his

brother a check for virtually all of the money in a court-frozen joint account that he

maintained with Latife.

No. 01-4278 Awkal v. Mitchell Page 18

Awkal arrived at the courthouse on the morning of the killings with his pistol,

25 rounds of ammunition, copies of the baby’s health records, and numerous childcare

supplies on his person. Once inside, he apparently remained calm and said little before

firing at least five bullets into Latife and Mahmoud at close range. Awkal then picked

up the baby and proceeded to quickly make his way towards an exit. He vowed that no

one was going to take the baby away, and he did not surrender until one of the deputies

shot him in the back.

In short, nothing about the killings or the time leading up to them suggests that

Awkal was in the grips of psychosis. To the contrary, the record shows that he had

engaged in detailed planning for the killings and their aftermath. Awkal’s calculated

actions were in fact totally inconsistent with his testimony that he had intended to kill

himself in front of Latife. We are therefore dubious that anyone representing Awkal

could have established that, at the time of the killings, Awkal “did not know, as a result

of a severe mental disease or defect, the wrongfulness of [his] acts.” See Ohio Rev.

Code Ann. § 2901.01(A)(14) (setting the standard for a finding of not guilty by reason

of insanity). In light of the overwhelming evidence against him, Awkal had little basis

for a realistic hope of a successful insanity defense. See Smith v. Spisak, 130 S. Ct. 676,

687 (2010) (holding that defense counsel’s alleged deficiency during closing argument

did not raise a reasonable probability that the result would have been different given the

graphic evidence of the crime presented by the prosecution and the “boastful”

confessions by the defendant).

Moreover, the prosecution would have called Dr. Rizk to testify that Awkal was

sane at the time of the offense if the defense had not done so first. The inevitability of

Dr. Rizk’s testimony in this case thus compels the conclusion that the trial’s outcome

would have been the same regardless of which side presented him as its witness. See

Strickland, 466 U.S. at 694 (holding that prejudice is established by showing “that there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different”).

No. 01-4278 Awkal v. Mitchell Page 19

In response, the dissent makes the completely unsupported argument that

Awkal’s counsel conducted the examination of Dr. Rizk in a manner that would cause

the jury to assume that Awkal accepted the doctor’s “sanity” conclusion. This is

contradicted not only by the fact that defense counsel presented two other experts—one

who testified that Awkal was not sane at the time of the killings and one who testified

regarding Awkal’s difficult family life—but by counsel’s redirect examination of Dr.

Rizk where he had Dr. Rizk admit that all doctors make mistakes and by counsel’s

closing argument.

Furthermore, despite the dissent’s assertions, Awkal did not solely rely on the

defense that he was not guilty by reason of insanity. Once the jurors discredited Awkal’s

insanity defense, they had to choose among three homicide classifications—aggravated

murder, murder, or voluntary manslaughter. Defense counsel emphasized that Awkal’s

only intent was to kill himself, and that Mahmoud’s telling him that he was not the

child’s father caused him to go into a sudden fit of rage or passion. Awkal would have

been guilty of the lesser-included offense of murder (as opposed to aggravated murder)

if the jury had found a lack of prior calculation and design. Dr. Rizk’s testimony that

Awkal had been very depressed, that he had previously been found incompetent to stand

trial, and that Awkal had been hospitalized for a psychotic episode in 1985 all supported

Awkal’s own testimony that he had planned to kill himself at the courthouse, which

would suggest that Awkal shot his wife and brother-in-law without any prior calculation.

Similarly, Awkal would have been guilty of the lesser-included offense of

voluntary manslaughter if he had killed while under the influence of a sudden passion

or in a sudden fit of rage brought on by serious provocation. Dr. Rizk testified that

Awkal had “major difficulties” with his family and that he was suffering from a delusion

when he saw a monster’s face immediately prior to the shooting. This testimony

supported a finding that Awkal was acting under the influence of a sudden passion or

rage. Counsel’s decision to call Dr. Rizk therefore cannot be considered prejudicial

where the majority of the doctor’s testimony supported Awkal’s alternative defense of

lesser-included crimes.

No. 01-4278 Awkal v. Mitchell Page 20

In sum, the Supreme Court of Ohio’s conclusion that Awkal failed to satisfy

either of Strickland’s requirements for establishing the ineffective assistance of counsel

at the guilt phase of the trial was not unreasonable.

IV. INEFFECTIVE ASSISTANCE AT THE PENALTY PHASE

Awkal next contends that his trial counsel rendered ineffective assistance by

failing to provide the trial court with a copy of a police report documenting Awkal’s

involuntary hospitalization in 1985 and by failing to present the testimony of competent

mental health experts in support of his insanity defense at the penalty phase of the trial.

The first part of Awkal’s argument is procedurally defaulted, and the second part lacks

merit.

A. Failure to provide mitigation evidence

At the conclusion of Dr. McGee’s guilt-phase testimony, Awkal’s counsel

attempted to admit into evidence a medical report regarding Awkal’s hospitalization in

1985 following an incident at work in which he apparently had a mental breakdown and

collapsed. The trial court sustained the prosecution’s objection, reasoning that the

document was difficult to read and lacked probative value because Dr. McGee had

already testified about the episode detailed in the report. Awkal argues that his counsel’s

failure during the penalty phase of trial to obtain and introduce a copy of a police report

relating to the 1985 incident constituted the ineffective assistance of counsel.

But Awkal did not raise this allegation in state court. “Before a federal court

may grant habeas relief . . . , the prisoner must exhaust his remedies in state court. In

other words, the state prisoner must give the state courts an opportunity to act on his

claims before he presents those claims to a federal court in a habeas petition.”

O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also 28 U.S.C. § 2254(b)(1)(A).

“[I]f an unexhausted claim would be procedurally barred under state law, that claim is

procedurally defaulted for purposes of federal habeas review.” Alley v. Bell, 307 F.3d

380, 385 (6th Cir. 2002).

No. 01-4278 Awkal v. Mitchell Page 21

Awkal did not include this claim in his state-court appeals and is now barred by

the statute of limitations from presenting it on state post-conviction review. See Ohio

Rev. Code Ann. § 2953.21(A)(2) (requiring postconviction petitions to be filed no later

than 180 days after the date on which the trial transcript is filed in the Supreme Court

of Ohio or 180 days after the expiration of the time for filing an appeal). The claim is

thus procedurally defaulted. Because Awkal has made no meaningful attempt to

establish cause and prejudice for his default, see Coleman v. Thompson, 501 U.S. 722,

750 (1991) (noting that a petitioner can overcome procedural default by demonstrating

“cause for the default and actual prejudice as a result of the alleged violation of federal

law,” or by demonstrating “that failure to consider the claims will result in a fundamental

miscarriage of justice”), the claim is not properly before us for review. See Williams v.

Anderson, 460 F.3d 789, 808 (6th Cir. 2006) (declining to reach the merits of the

petitioner’s claim where he failed to argue cause and prejudice to excuse the default).

B. Retaining and using qualified mental-health experts

Defense counsel presented the testimony of three mental-health experts—Drs.

Hewitt, McGee, and Samy—during the penalty phase of trial. Awkal contends that the

presentation of these experts’ testimony during the penalty phase, along with that of Dr.

Rizk during the guilt phase, constituted the ineffective assistance of counsel with regard

to mitigation evidence.

Awkal reasons that Dr. Hewitt’s testimony during the penalty phase was a

“mockery” because Dr. Hewitt was “discredited” at the guilt phase when the trial judge

struck his testimony. The force of Awkal’s argument is diluted, however, by the fact

that the judge did allow Dr. Hewitt to testify during the penalty phase of the case.

Moreover, Dr. Hewitt gave lengthy testimony at the penalty phase about Awkal’s

background, family, troubled marriage, and religion. He testified that Awkal’s

emotional state “collapsed” on the day of the murders, that the murders were

“spontaneous,” and that Awkal was unable to appreciate the criminality of his conduct.

Dr. Hewitt also testified that Awkal was not “competent to know right from wrong or

what he was doing and that this was a spontaneous kind of thing provoked by the overall

No. 01-4278 Awkal v. Mitchell Page 22

situation at the time.” This testimony supported defense counsel’s argument that Awkal

suffered from a “mental disease or defect”—a mitigating factor under Ohio law. See

Ohio Rev. Code Ann. § 2929.04(B)(3). Defense counsel clearly did not fall below an

objective standard of reasonableness by presenting Dr. Hewitt’s testimony on this

mitigating factor. See Strickland, 466 U.S. at 687-88.

Awkal next argues that trial counsel “demonstrat[ed] their complete lack of

preparation for the mitigation phase” by calling Dr. Rizk to testify at the guilt phase. He

reasons that the presentation of Dr. Rizk at the guilt stage “destroyed any meaningful

mitigation presentation because Dr. Rizk previously testified that Awkal was sane.” But

the standard under Ohio law for a plea of not guilty by reason of insanity differs from

the standard for the mental-disease-or-defect mitigating factor provided by Ohio Revised

Code § 2929.04(B)(3). State v. Van Hook, 530 N.E.2d 883, 890 (Ohio 1988) (“We note

that the mitigating factor . . . utilizes the term ‘substantial capacity[,]’ which is a term

allowing a broader range of [mental] conditions than the term ‘capacity’ standing

alone.”). Awkal’s argument accordingly fails because Dr. Rizk’s guilt-phase testimony

was not necessarily inconsistent with the testimony of the penalty-phase experts about

Awkal’s mental condition for mitigation purposes.

As for the testimony of Dr. Salah Samy, another psychiatrist, Awkal submits that

trial counsel completely failed to prepare Dr. Samy for his testimony. In support of this

assertion, Awkal cites Dr. Samy’s testimony that he could not give a loss-of-control

opinion without more detailed information about Awkal. Dr. Samy did, however, testify

that Awkal was not malingering and that, at the time of the shootings, Awkal had

“developed [an] acute psychotic reaction.” Awkal’s counsel did not act unreasonably

by presenting this favorable testimony.

Finally, Awkal argues that Dr. McGee “was a pediatrician, not board certified[,]

and had no experience in forensic psychiatry.” He accordingly reasons that defense

counsel acted ineffectively by presenting such an unqualified expert to testify regarding

his mental condition. But Awkal’s argument overlooks Dr. McGee’s qualifications,

which are discussed in more detail above. At the mitigation phase, Dr. McGee also

No. 01-4278 Awkal v. Mitchell Page 23

testified that she had taken a law-school class on forensic psychiatry and had worked for

four months with a forensic psychiatrist in Cleveland.

Defense counsel did not act unreasonably by calling Dr. McGee. Her testimony

demonstrates that she was qualified to act as an expert witness on Awkal’s behalf. See

Joyce-Couch v. DeSilva, 602 N.E.2d 286, 290 (Ohio Ct. App. 1991) (“Under Ohio law,

any doctor licensed to practice medicine is competent to testify about medical issues.”).

This court has held that “[a] licensed practitioner is generally held to be competent,

unless counsel has good reason to believe to the contrary.” Lundgren v. Mitchell, 440

F.3d 754, 772 (6th Cir. 2006). Awkal can make no such showing regarding Dr. McGee.

Because Dr. McGee was qualified under Ohio law to give an expert opinion, and in fact

gave competent testimony that Awkal was mentally ill, Awkal’s counsel was not

constitutionally ineffective for retaining her and presenting her testimony during the

penalty phase of the trial.

We thus conclude that Awkal’s counsel was not deficient in the presentation of

mitigation-phase evidence. Based on the record before us, a similar conclusion reached

by the Supreme Court of Ohio, see State v. Awkal, 667 N.E.2d 960, 972 (Ohio 1996),

was not unreasonable.

V. PROSECUTORIAL MISCONDUCT

Awkal’s final issue on appeal focuses on an instance of prosecutorial misconduct.

During closing argument at the guilt phase of the trial, the prosecutor made the following

isolated comment about Dr. McGee’s testimony:

She comes in here and says for a brief moment that this guy hallucinated

on January 7th and as a result of that he was legally insane, but he is now

sane, so let him walk out the door.

Awkal contends that this statement constituted prosecutorial misconduct and that, as a

result, he was denied the due process of law.

The prosecutorial-misconduct claim is procedurally defaulted. Because Awkal’s

counsel made no contemporaneous objection to the prosecution’s statement, the Supreme

No. 01-4278 Awkal v. Mitchell Page 24

Court of Ohio reviewed the claim under the plain-error standard. Awkal, 667 N.E.2d at

970. The Court denied the claim, explaining:

It was error for the prosecutor to argue that Awkal would “walk out that

door” if the jury found him not guilty by reason of insanity. First, this

statement was an incorrect statement of the law. If Awkal were found

not guilty by reason of insanity, he would have been confined to a

psychiatric facility until his sanity was restored. This statement plainly

sought to inflame the passions of the jury. However, the prosecutor’s

arguments, as a whole, although impassioned, did not deprive Awkal of

a fair trial and did not constitute plain error.

Id. at 970-71.

Awkal subsequently raised the prosecutorial-misconduct allegation in his federal

habeas petition. The district court correctly determined that the allegation was

procedurally defaulted. Federal habeas review is generally precluded where a state court

decides not to address a petitioner’s federal claims because he has failed to meet a state

procedural requirement “that is independent of the federal question and adequate to

support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729 (1991). And a state

appellate court’s plain-error review of a procedurally defaulted claim does not waive the

procedural default. Lundgren, 440 F.3d at 765.

Here, the Supreme Court of Ohio invoked the state’s contemporaneous-objection

rule, explaining that “Awkal objected to neither of these alleged errors [the claim at issue

along with an unrelated prosecutorial-misconduct claim] at trial. Therefore, he has, with

the exception of plain error, waived the issues.” Awkal, 667 N.E.2d at 970. This court

has held that the contemporaneous-objection rule is an adequate and independent state

ground barring federal habeas review, Biros v. Bagley, 422 F.3d 379, 387 (6th Cir.

2005), and that plain-error review is not inconsistent with the procedural default.

Lundgren, 440 F.3d at 765. Because Awkal again fails to advance a cause-and-prejudice

argument to excuse his default, the issue is not properly before us for consideration.

No. 01-4278 Awkal v. Mitchell Page 25

VI. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district

court in denying Awkal’s petition for habeas relief.

No. 01-4278 Awkal v. Mitchell Page 26

_______________________

CONCURRENCE

_______________________

HELENE N. WHITE, Circuit Judge, concurring. I concur in the majority opinion

and write separately only to state that I do not agree that the facts leading up to the

shooting so undermined Awkal’s insanity defense that there was no realistic hope of the

defense succeeding. Nevertheless, as the majority observes, Dr. Rizk’s testimony was

inevitable, and there is no reason to conclude that the timing of that testimony or defense

counsels’ manner or presentation affected the jury’s verdict.

No. 01-4278 Awkal v. Mitchell Page 27

________________

DISSENT

________________

BOYCE F. MARTIN, JR., Circuit Judge, dissenting. Awkal’s primary defense

to the capital charge was that he was not guilty by reason of insanity. Any remotely

competent attorney knows that an insanity defense relies mainly upon expert testimony

regarding the defendant’s mental state. But Awkal’s counsel’s presentation of expert

psychological testimony at the guilt phase sounds like the opening of a bad joke: “Three

defense experts walk into court. One got his degree from a mail-in university, is not

licensed, and cannot testify. One is well-credentialed but testifies against the defendant.

And the third is not certified in psychiatry.” Or perhaps the better analogy is an episode

of The Three Stooges.1 But, however one wishes to describe it, it is clear what counsel’s

performance was not: the kind of representation constitutionally required in a capital

case. I find the majority’s opinion to the contrary unpersuasive, so I respectfully

dissent.2

A. Clearly Established Federal Law

To succeed on his ineffective assistance of counsel claim, Awkal must show that

his “counsel’s representation fell below an objective standard of reasonableness.”

Strickland v. Washington, 466 U.S. 668, 688 (1984). Awkal must then demonstrate

prejudice by “show[ing] that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

1

When I say that counsel’s handling of expert testimony on the sanity issue reminds me of The

Three Stooges, I do not mean to cast aspersions at the intelligence of the three doctors. I have no reason

to believe that they are anything other than diligent, intelligent individuals, though counsel clearly could

have found two doctors with more impressive credentials for purposes of supporting this most important

issue. Rather, The Three Stooges comes to mind from a director’s point of view. The director of The

Three Stooges created a product that came across to his audience as bungling. Based on my review of the

record, Awkal’s counsel engaged in a similar task.

2

Awkal brings several habeas claims, alleging errors at both the guilt and the sentencing phases

of his trial. The majority addresses and holds against Awkal on all of these claims. Although I do not

necessarily agree with the majority’s disposition as to each claim, I focus solely on the guilt-phase

ineffective assistance of counsel claim. Because Awkal received constitutionally ineffective assistance

of counsel at the guilt phase of his trial, he should receive a new trial. Therefore, I need not address his

other claims.

No. 01-4278 Awkal v. Mitchell Page 28

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. Moreover, as our review of this case is controlled by AEDPA,

Awkal must “show that the [Ohio Supreme Court] applied Strickland to the facts of his

case in an objectively unreasonable manner.” Bell v. Cone, 535 U.S. 685, 699 (2002).

B. Ineffective Assistance of Counsel

1. Deficient Performance

Awkal’s sole affirmative defense to the murder charges was that he was not

guilty by reason of insanity. During the guilt phase, Awkal’s counsel presented three

experts to testify in support of this defense: Dr. Paul Hewitt, Dr. Magdi S. Rizk, and Dr.

Eileen S. McGee.

Dr. Hewitt testified first but, “while attempting to qualify Dr. Hewitt to give an

opinion on that issue, counsel established that Dr. Hewitt was not competent to engage

in forensic psychology.” State v. Awkal, 667 N.E.2d 960, 971 (Ohio 1996). Most

glaringly, Dr. Hewitt was not licensed.3 Because the trial court determined that he was

not qualified to enter an opinion on the sole guilt-phase issue—whether Awkal was sane

at the time that he committed the attack—the court excluded Dr. Hewitt’s testimony and

instructed the jury to disregard what testimony he had already provided. Dr. Hewitt was

thus never able to opine on Awkal’s sanity.

Next, the defense called Dr. Rizk, a court-appointed forensic psychiatrist who

had originally evaluated Awkal to determine whether he was competent to stand trial.

Defense counsel had Dr. Rizk testify on direct examination regarding his conclusion

about Awkal’s competency to stand trial. (One may recall that the main issue during the

guilt phase was Awkal’s sanity at the time of the attack; the jury was not there to decide

whether Awkal could be tried.) Then, on cross-examination by the State, Dr. Rizk

3

Though it is unclear how important it was to the trial court’s decision to strike Dr. Hewitt, it was

also revealed that he had received his Master’s Degree and Doctorate from Century University in

California, a mail-in university.

No. 01-4278 Awkal v. Mitchell Page 29

opined that, even though Awkal was initially incompetent to stand trial, he was

nevertheless sane at the time of the attack.

Finally, Dr. McGee testified that Awkal was not sane at the time of the murders.

Dr. McGee was a licensed pediatrician who, though well-trained, “was not yet board

certified in psychiatry, had no experience in forensic psychiatry, and had been practicing

psychiatry for only one year.” Id. at 972. The state court stated that Dr. McGee’s

“opinion may have been diminished by her lack of certification and inexperience.” Id.

Thus, her testimony was of very limited value when following Dr. Rizk’s devastating

sanity opinion.

Counsel’s choice and then presentation of experts is baffling. Not only did he

call two experts whose credibility was weak or whose testimony was inadmissible at the

guilt phase, but counsel’s one certified psychiatrist undermined Awkal’s sole defense by

testifying unequivocally on cross-examination that Awkal was sane at the time of the

attack. Counsel’s handling of Dr. Rizk, therefore, was not only troubling, but disastrous.

Either counsel was completely unaware of how Dr. Rizk would testify regarding

Awkal’s sanity, which shows a glaring lack of basic trial skills as Dr. Rizk had already

issued a written report finding Awkal to have been sane, or counsel knew that Dr. Rizk

would opine that Awkal was sane at the time of the attack but did not seek to address it

on direct examination, in which case the decision to call him as a witness is senseless.4

What little value there is in having a psychiatrist testify that Awkal had previously been

found incompetent to stand trial was obviously overshadowed by having that same

psychiatrist opine that Awkal was sane at the time of the attack. The only plausible

conclusion is that counsel’s actions with regard to Dr. Rizk at the guilt phase, combined

4

The majority suggests that the fact that Awkal’s counsel possessed Dr. Rizk’s report before

calling him as a witness demonstrates that the decision to do so was strategic. (Ante at 13.) First,

regardless of whether Awkal’s counsel knew or should have known of Dr. Rizk’s opinion, the decision

to call an expert witness that contradicted Awkal’s only affirmative defense amounts to deficient

performance. See Combs v. Coyle, 205 F.3d 269, 288 (6th Cir. 2000) (“Regardless of whether Combs’s

counsel should have known or instead actually knew [the expert’s] opinion regarding Combs’s intent,

however, counsel’s decision to put him on the stand was objectively unreasonable.”). Secondly, counsel’s

performance was not deficient solely by virtue of having called Dr. Rizk to testify, but rather, having called

Dr. Rizk to testify, counsel was deficient in failing to impeach or even address Dr. Rizk’s devastating

sanity opinion.

No. 01-4278 Awkal v. Mitchell Page 30

with counsel’s reliance upon two other inherently unreliable “experts,” constituted the

deficient performance necessary to establish ineffective assistance of counsel.

The majority, of course, disagrees and puts forth various arguments in support

of its conclusion that counsel’s actions were the result of strategy instead of

incompetence. So let us examine some of these arguments in more detail.

The majority asserts that this case is more similar to Morales v. Mitchell, 507

F.3d 916 (6th Cir. 2007), in which we rejected an ineffective assistance argument, than

Combs, in which we found ineffective assistance. I strongly disagree. The facts of

Awkal’s case are materially indistinguishable from Combs. Like Awkal, Combs did not

contend that he had not committed the attack. Combs, 205 F.3d at 273. Instead,

Combs’s defense was that “he was too intoxicated from alcohol and drugs to form the

requisite intent to kill the [two] women or to have committed the killings with prior

calculation and design.” Id. Combs’s counsel presented testimony that Combs was

intoxicated, but he called only one expert witness on this point. That witness was a

psychologist who, like Dr. Rizk, testified on cross-examination that, contrary to Combs’s

defense, Combs had killed intentionally. Id. We held that Combs received ineffective

assistance of counsel because,

[r]egardless of whether Combs’s counsel should have known or instead

actually knew [the expert’s] opinion regarding Combs’s intent, however,

counsel’s decision to put him on the stand was objectively

unreasonable. . . . [N]ot only did [the expert’s] testimony destroy any

hope of a successful intoxication defense, but it also helped the

prosecution to establish one of the elements of its case in chief. Quite

simply, this testimony was completely devastating to the defense, and

counsel’s decision to present it was objectively unreasonable.

Id. at 288. In sum, we found that calling an expert who, on cross-examination, directly

contradicted the defendant’s sole defense constituted ineffective assistance of counsel.

Dr. Rizk’s testimony followed exactly the same script.

The majority attempts to distinguish Awkal’s case from Combs by pointing to

the fact that Awkal’s counsel presented three expert witnesses regarding the insanity

No. 01-4278 Awkal v. Mitchell Page 31

issue rather than only one.5 This distinction may carry some weight if it were true that

the other two experts offered by Awkal’s counsel had added any value. But instead, one

of the expert’s testimony was stricken due to his lack of qualification, and the other

expert was a relatively novice, uncertified psychiatrist, opining on the mental state of a

man put on trial for his life. In essence, the majority reasons that this case is different

from Combs because Combs involved only one terrible decision but this case involved

three. This is a distinction to be sure, but it cuts in favor of Awkal, not the State. The

majority’s reasoning to the contrary leads to the apparent, but vexing, takeaway that, in

the Sixth Circuit, numerous instances of incompetence may aggregate into competence,

that defense counsel may insulate themselves from ineffective assistance claims simply

by making multiple errors.

The majority’s reliance on Morales is also misplaced. In Morales, a defendant

charged with murder claimed that he was not guilty by reason of insanity. 507 F.3d at

921, 936. Morales alleged that his voluntary intoxication rendered him unable to

“appreciate the consequences of his acts or refrain from committing those acts, or

understand the difference between right and wrong” at the time of the crime. Id. at 921

(internal quotation marks omitted). In spite of the fact that intoxication played a role in

Morales’s defense, Morales’s counsel called a forensic psychologist to the stand whom

Morales’s counsel knew “did not believe that Morales had a viable voluntary-

intoxication defense.” Id. at 936.

On direct examination, the psychologist provided favorable testimony, outlining

Morales’s psychological problems, which included a “personality disorder” that, when

“combined with [Morales’s] alcohol dependency and abuse, deprived him of the ability

to refrain from or understand the wrongfulness of his actions.” Id. at 938. On cross-

examination the psychologist conceded that, legally, “voluntary intoxication alone [was]

not a basis for the insanity defense.” Id. The psychologist went on to testify that

5

The majority also distinguishes Combs on the basis that it is pre-AEDPA. Though this

distinction is maybe material for purposes of Combs’s habeas ruling, it does not affect Combs’s

constitutional finding of deficient performance under Strickland on materially indistinguishable facts.

No. 01-4278 Awkal v. Mitchell Page 32

“voluntary intoxication was not the only contributing factor in the murder,” citing

Morales’s other psychological problems. Id.

Faced with Morales’s claim that his counsel was ineffective for calling the

psychologist, the Morales Court determined that the psychologist’s statement regarding

the legal standard for insanity was plainly “unhelpful,” but concluded that the case was

distinguishable from Combs for several reasons. Id. Most significantly for Awkal, the

Court determined that, unlike Combs, the psychologist’s testimony in Morales did not

completely undermine Morales’s only affirmative and complete defense. Rather,

Morales’s insanity defense was based on a combination of his psychological problems

and his intoxication, and the psychologist testified to that effect. Id. Thus, “the

substance of [the expert’s] testimony” in Morales “supported the defense theory.” Id.

Here, however, the facts are strikingly different. Dr. Rizk’s testimony that

Awkal was sane at the time of the murders completely undermined Awkal’s only

affirmative and complete defense—that he was insane when he killed his wife and

brother-in-law. Therefore, Dr. Rizk’s statement that Awkal was sane was not just

“unhelpful”, cf. id., it was fatal.

After seeking, unconvincingly, to distinguish Combs, the majority next engages

in that time-honored tradition of ineffective assistance of counsel cases—conjuring up

possible explanations to make counsel’s actions seem like anything other than

buffoonery. The majority is correct that the Supreme Court has indicated that reviewing

courts should seek to contrive an explanation for counsel’s actions, even if it is mere

speculation. But, at the very least, these imagined explanations should be plausible and

not contradicted by the record.

The majority first suggests that perhaps defense counsel called Dr. Rizk so that

he could testify as to Awkal’s competence to stand trial and other mental issues in order

to “plant a seed of doubt” regarding his conclusion that Awkal was sane. (Ante at 13.)

Relatedly, the majority suggests that perhaps counsel called Dr. Rizk in order to “take

the sting out” of Dr. Rizk’s damaging sanity opinion. (Id. at 14.) Perhaps counsel called

Dr. Rizk to preempt what would surely have been a decision by the prosecution to call

No. 01-4278 Awkal v. Mitchell Page 33

Dr. Rizk in its rebuttal case. (Id. at 15.) Or perhaps counsel called Dr. Rizk in an effort

to bolster credibility by acknowledging weaknesses. (Id.) All of these hypotheses rest

on the theory that counsel called Dr. Rizk in order to address what counsel knew would

be damaging testimony, either by preemptively discrediting the testimony or managing

its “sting.” These explanations could be sound trial strategies, if it were the case that

defense counsel actually addressed the damaging testimony in his examination of the

witness. But here, counsel never attempted to elicit from Dr. Rizk that he was of the

opinion that Awkal was sane at the time of the crime; that gem came out on the

prosecution’s terms during cross-examination. Nor did counsel seek on redirect

examination to discredit Dr. Rizk’s sanity opinion with his testimony on direct

examination regarding Awkal’s mental issues and incompetence to stand trial.

In short, the record does not support the majority’s post hoc justifications for

counsel’s actions and, in fact, directly contradicts them. It cannot plausibly be

speculated that counsel was seeking to “plant a seed of doubt” about Dr. Rizk’s sanity

opinion unless there is some indication that counsel actually did anything in his

examination of Dr. Rizk to discredit that opinion. Here, Awkal’s counsel neither

suggested doubt on direct examination nor discredited the sanity opinion on redirect, so

counsel clearly was not questioning Dr. Rizk with an eye toward the damaging sanity

opinion. Similarly, as to the “take the sting out” conjecture, this could not possibly have

been counsel’s strategy when counsel did not actually elicit the damaging testimony.6

Far from taking the sting out by eliciting the damaging testimony on direct examination,

counsel compounded the sting by allowing the prosecution to elicit the opinion on cross-

examination after defense counsel had relied on the witness and bolstered his credibility

with the jury.

This unfolding of events is devastating as a matter of trial dynamics. In essence,

counsel examined Dr. Rizk on direct, without any preemptive impeachment, and then

tendered the witness to the prosecution, leaving the jury with the impression that

6

I am sure Mssrs. Bailey and Rothblatt, see ante at 14 (citing Bailey and Rothblatt, Successful

Techniques for Criminal Trials), would not read this transcript and conclude that counsel was engaging

in the “take the sting out” maneuver.

No. 01-4278 Awkal v. Mitchell Page 34

Awkal’s own counsel endorsed Dr. Rizk’s entire testimony. Thus, when the prosecution

elicited on cross-examination that Dr. Rizk believed Awkal to have been sane at the time

of the attack, the jury likely assumed either that defense counsel also endorsed this

testimony or had hoped to suppress it. Counsel reinforced this conclusion when he

ignored the sanity opinion on redirect examination. This is not sound trial strategy, and

the majority’s attempts to justify counsel’s actions simply do not hold water.

The rest of the majority’s speculation about possible reasons for counsel’s

actions is similarly unpersuasive. Perhaps counsel wanted Dr. Rizk’s favorable

testimony regarding Awkal’s initial incompetence to stand trial. (Ante at 14.) But

whether Awkal was at one point incompetent to stand trial (as he had obviously been

subsequently found competent) was at most only marginally probative as to whether he

was sane at the time of the attack. It cannot be sound trial strategy to seek weak and

likely irrelevant favorable testimony when you know that doing so is sure to bring in

highly damaging and relevant testimony. Under Ohio law effective at the time of

Awkal’s trial, “[a] person is ‘not guilty by reason of insanity’ . . . only if he proves . . .

that at the time of the commission of the offense, he did not know, as a result of severe

mental disease or defect, the wrongfulness of his acts.” Ohio Rev. Code § 2901.01(N)

(emphasis added). Thus, the only portion of Dr. Rizk’s testimony relevant at the guilt

phase was his opinion regarding Awkal’s sanity at the time of the attack. Other

testimony regarding Awkal’s competence to stand trial or matters related to his family

background had, at best, no impact on the guilt phase and seems unlikely to have

constituted any kind of trial strategy.

On a related note, perhaps counsel sought to keep Dr. Rizk’s favorable testimony

but downplay the bad by bracketing his testimony with that of Dr. Hewitt and Dr.

McGee. (Ante at 15.) However, this also is not plausible explanation based on the

record. As stated above, counsel did not purposefully elicit any damaging testimony

from Dr. Rizk, so he could not have been meaning to hide the damaging testimony

between the favorable testimony of Drs. Hewitt and McGee. Moreover, Dr. Rizk’s

damaging sanity opinion was unquestionably a heavy piece of evidence, so it would take

No. 01-4278 Awkal v. Mitchell Page 35

some rather strong brackets to contain it. Counsel could not have expected Dr. Hewitt

to provide the necessary front-end support in the jury’s mind, and, indeed, the court

struck Dr. Hewitt’s testimony in its entirety. Counsel also could not have expected the

testimony of Dr. McGee—a former pediatrician and uncertified psychiatrist with no

experience in forensic psychiatry—to provide the back-end support needed to remedy

Dr. Rizk’s devastating testimony.

Also related, perhaps counsel called Dr. Rizk in Awkal’s defense to remove one

arrow from the prosecution’s quiver so that the prosecutor would have only one expert

instead of two on rebuttal. (Id.) Like many of the majority’s other hypotheses, however,

this speculation also incorrectly presumes that counsel called Dr. Rizk for the purpose

of eliciting his damaging sanity opinion. As shown above, the record contradicts that

line of reasoning. If counsel had called Dr. Rizk with an eye towards addressing his

sanity opinion, one would expect that he would have actually elicited it.

In sum, the majority valiantly but vainly attempts to invent an explanation for

counsel’s actions that could be characterized as strategic, as none of the proffered

explanations are plausible when one looks at what defense counsel actually did. The

majority attempts to respond to my reasoning, but at no point does it offer an explanation

for what I see as the most damning fact for its position: counsel never addressed Dr.

Rizk’s sanity opinion. At some point, Ockham’s Razor must apply—the simplest

answer is usually the correct one. Here, in light of the majority’s numerous failed

attempts to justify counsel’s actions, the simplest answer is that counsel did not have the

foggiest idea what he was doing when he decided to put Drs. Hewitt, Rizk, and McGee

on the stand. There was no grand plan.

Instead, it appears that counsel was merely throwing whatever evidence he could

find at the jury and hoping something would stick. Confirming this conclusion is the

fact that, when the trial judge asked whether counsel had a strategic reason for calling

Dr. Rizk, counsel responded, “I don’t have a response at this time,” (J.A. 2064), and

went on to posture that he had no duty to explain himself but of he course he had a

reason. This, to me, is code for “no.” Counsel’s actions clearly were not the sound trial

No. 01-4278 Awkal v. Mitchell Page 36

strategy that Strickland seeks to protect.7 I therefore would find that counsel rendered

constitutionally ineffective assistance.

2. Prejudice

In addition to showing that his counsel’s performance was deficient, Awkal has

shown that the deficiency prejudiced him. The State presented other evidence that

Awkal was legally sane at the time of the murders and that Awkal acted with prior

calculation by pointing to, among other things, the fact that Awkal had diapers and baby

supplies in his car at the time of the murders, that he was arrested with a full clip of

bullets, and that he had taken steps to move to another area. (J.A. at 2444-50.) Awkal

countered this evidence by explaining that he had intended to commit suicide, but his

mental instability caused him to break with reality and kill his wife and brother without

intent or knowledge of his actions. But, as in Combs, counsel’s decision to call Dr. Rizk

as an expert “destroy[ed] any hope of a successful [insanity] defense” and “was

completely devastating to the defense.” Combs, 205 F.3d at 288; see also id. at 290

(“The testimony of the sole defense expert that Combs, though intoxicated, nevertheless

acted with purpose and intent was obviously damaging to the defense. Furthermore, [the

expert’s] testimony provided the State with its most powerful evidence of purpose.”).

The majority claims that no prejudice resulted from Dr. Rizk’s testimony and

even offers that, since the prosecution would have called Dr. Rizk anyway, the trial’s

outcome would have been the same regardless of who presented him as a witness.

However, that the jury would have heard Dr. Rizk’s testimony at some point does not

address the reality that Awkal was prejudiced by his counsel’s presentation and handling

of the expert testimony on mental state. The damage was not that testimony countering

Awkal’s sole defense was presented at some point in the trial, because, as the majority

notes, “it is always desirable in planning one’s trial strategy to anticipate disclosures by

the prosecution of highly unfavorable and damaging evidence against the accused . . .

7

If counsel’s unexplainable actions, when viewed in light of the entire record, do indeed qualify

as the strategy that Strickland says is constitutionally sufficient to satisfy the Sixth Amendment’s guaranty

of competent counsel, strategy has become “stragedy” and Strickland itself needs to be revisited. The

Constitution demands better, and we should demand better.

No. 01-4278 Awkal v. Mitchell Page 37

you can be sure the prosecutor will!” (Ante at 14 (citing Bailey & Rothblatt).) The harm

was in the fact that Awkal’s own counsel called three expert witnesses, the most credible

of which completely destroyed Awkal’s defense, while the other two were not at all

persusive. And, as stated above, counsel conducted the examination of Dr. Rizk in a

manner that would lead the jury to conclude that Awkal’s team found Dr. Rizk’s

testimony reasonable. Thus, when Dr. Rizk testified on cross-examination that Awkal

was sane at the time of the attack, a reasonable jury would have assumed that Awkal

accepted this conclusion.8 While it is a normal part of the trial for the prosecution to

attack a defendant’s defense, it is highly unusual for defendant’s own counsel to

undermine his only defense through his presentation of experts.

Furthermore, reactions from the judge and prosecutor when defense counsel

called Dr. Rizk only buoy the conclusion that counsel’s decision was highly unusual and

harmful. Before Dr. Rizk took the stand, the judge, at the prompting of the prosecutor,

asked Awkal’s counsel if he had “strategic reasons for calling Dr. Rizk.” (J.A. at 2064-

66.) Defense counsel replied that he had no response at that time, presumably because

there was no strategy. The prosecutor openly wondered why counsel made this choice

and, in closing arguments highlighted the damaging decision, telling the jury, “Then

[defense counsel] called one of our witnesses, Dr. Rizk, to the stand. I am still trying to

figure that one out.” (J.A. at 2457.) Once Awkal’s own expert testified that Awkal was

sane at the time of the murders, the jury could not conceivably conclude—with the sole

backing of an uncertified psychiatrist—that Awkal was actually insane at the time of the

crime. Thus, it is reasonable to assume that defense counsel’s decision to call Dr. Rizk

sealed Awkal’s fate.

8

The majority claims that this is merely unsupported speculation. I would first note that the very

nature of ineffective assistance cases is engaging in post hoc speculation. The majority’s opinion is rife

with it. Furthermore, I do not believe that my conclusion is unsupported. Having eliminated, based on

the flow of counsel’s direct and redirect examination, the prospect that counsel called Dr. Rizk for the

purposes of debunking his sanity opinion, the only conclusion remaining is that counsel called Dr. Rizk

to endorse his testimony. One cannot endorse some of a witness’s testimony but reject other aspects of

that testimony unless one actually engages in the exercise of rejecting the unfavorable aspects of the

testimony. Here, counsel never took issue with Dr. Rizk’s sanity opinion.

No. 01-4278 Awkal v. Mitchell Page 38

Furthermore, Awkal has shown prejudice even though, or perhaps because, his

counsel called an uncertified psychiatrist who testified that Awkal was legally insane at

the time of the murders. During the course of a normal trial, prosecution and defense

experts often disagree and it is up to the jury to suss out the conflict. But counsel’s

actions rendered this trial distinctly abnormal when, without any apparent explanation

or purpose, he offered an expert who agreed with the prosecution’s expert on the most

critical fact question in the entire case. Calling a second “expert” of marginal

persuasiveness could not possibly undo the damage caused by counsel’s handling of Dr.

Rizk.

C. Ohio Supreme Court’s Application of Strickland to These Facts

In addition to showing that his counsel’s performance was deficient and that he

was prejudiced by this deficiency, Awkal has “show[n] that the [Ohio Supreme Court]

unreasonably applied Strickland to the facts of his case in an objectively unreasonable

manner.” Cone, 535 U.S. at 699. After considering Awkal’s ineffective assistance of

counsel claims, the Ohio Supreme Court concluded that “Awkal was not deprived of a

fair trial by his trial counsel. Given the evidence supporting his conviction, he was not

prejudiced by what occurred at trial.” Awkal, 667 N.E.2d at 971. The Ohio Supreme

Court explained its holding:

Counsel also called Dr. Rizk to testify during the guilt phase. Dr.

Rizk is adequately qualified and has testified in numerous other similar

circumstances. However, Dr. Rizk testified that Awkal was sane at the

time of the murders. This testimony obviously damaged Awkal’s

affirmative defense that he was not sane when he committed the murders.

Yet, portions of Dr. Rizk’s testimony assisted the defense, including

testimony about religion as a basis for Awkal’s marital problems, his

medication levels, and his hallucinations.

Counsel concluded Awkal’s affirmative defense by calling Dr.

McGee, a psychiatrist. Dr. McGee was not yet board certified in

psychiatry, had no experience in forensic psychiatry, and had been

practicing psychiatry for only one year. Dr. McGee testified that Awkal,

as evidenced by his hallucinations involving his wife in his cell in

Dayton, had broken with reality at the time of the murders. This break

with reality impaired his ability to know right from wrong at the time of

the murders. Although her opinion may have been diminished by her

No. 01-4278 Awkal v. Mitchell Page 39

lack of certification and inexperience, Dr. McGee supported Awkal’s

affirmative defense.

Thus, of the three doctors called to testify for the defense, the

testimony of one was stricken from the record, one gave an opinion

contradicting Awkal’s affirmative defense but also gave other evidence

that assisted that defense, and one testified that Awkal was not mentally

responsible for his acts. However, Drs. McGee and Hewitt were called

to testify and did testify during the penalty phase of the trial, giving

pro-defense opinions. Dr. Samy also gave a pro-defense opinion in the

penalty phase.

Awkal’s counsel obviously had some plan in mind. Dr. Hewitt

conceivably could have been allowed to testify as an expert witness, and

Dr. Rizk did make an earlier finding that Awkal was incompetent to

stand trial. In hindsight it appears that Awkal may have been better

served to call only Dr. McGee during the guilt phase, and call her and the

other defense doctors during the penalty phase, if the trial would reach

that stage. However, the end result of tactical trial decisions need not be

positive in order for counsel to be considered “effective.” We do not

believe the record establishes that Awkal’s attorneys were ineffective at

trial.

Awkal, 667 N.E.2d at 971-72 (citation omitted).

This analysis constitutes an unreasonable application of Strickland. The state

trial court obviously recognized the extent of the harm caused by defense counsel’s

decision to call Dr. Rizk—it concedes that calling Dr. Rizk was not a good idea in

hindsight. But the court nevertheless disregards the prejudice by boldly proclaiming that

“Awkal’s counsel obviously had some plan in mind.” This strikes me more as wishful

thinking rather than legal analysis based on the evidence in the record. The court

assumes that counsel had a plan because, otherwise, it would have to answer tough

questions and face uncomfortable realities about the state of indigent, and especially

capital, representation. Though Strickland is, for better or for worse, extremely

solicitous of lawyers, it is not a license to rely on baseless assumptions to escape hard

questions.

The court also mischaracterized Dr. Rizk’s testimony as somehow helpful to

Awkal. This too overlooks reality. Though Dr. Rizk testified about Awkal’s family and

psychiatric history, that testimony was neither here nor there at the guilt phase where the

No. 01-4278 Awkal v. Mitchell Page 40

only relevant issue was Awkal’s sanity at the time of the attacks. Ohio Rev. Code

§ 2901.01(N). Thus, Dr. Rizk’s other statements at the guilt phase were, at best, neutral

and could not be said to “assist” Awkal’s defense. Dr. Rizk’s relevant testimony

destroyed Awkal’s only affirmative defense, a fact that the Ohio Supreme Court ignored

when it characterized Dr. Rizk’s testimony as part of a larger strategy. Thus, the court

unreasonably applied Strickland to Awkal’s case.

Because the Ohio Supreme Court’s application of Strickland was objectively

unreasonable, and because Awkal received ineffective assistance of counsel at the guilt

phase of the trial, I would grant habeas relief and order a new trial within ninety days.

I respectfully dissent.