Stumpf v. Houk

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0212p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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JOHN DAVID STUMPF,

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Petitioner-Appellant,

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No. 01-3613

v.

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Respondent-Appellee. -

MARC C. HOUK, Warden,

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On Remand from the United States Supreme Court.

No. 96-00668—George C. Smith, District Judge.

Argued: July 26, 2007

Decided and Filed: August 11, 2011

Before: BOGGS, DAUGHTREY, and MOORE, Circuit Judges.

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COUNSEL

ARGUED: Alan M. Freedman, MIDWEST CENTER FOR JUSTICE, LTD., Evanston,

Illinois,for Appellant. Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Alan M. Freedman, Carol R.

Heise, MIDWEST CENTER FOR JUSTICE, LTD., Evanston, Illinois,for Appellant.

Stephen E. Maher, Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, Carol Ann Ellensohn, OHIO BOARD OF NURSING, Columbus,

Ohio, for Appellee.

DAUGHTREY, J., delivered the opinion of the court, in which MOORE, J.,

joined. BOGGS, J. (pp. 19–26), delivered a separate dissenting opinion.

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OPINION

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MARTHA CRAIG DAUGHTREY, Circuit Judge. Recent polling results and

statistical compilations support many of the economic and penological arguments that

1

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have long been raised in opposition to the imposition of the death penalty in the United

States.1 Other statistics bolster objections to a form of punishment that, possibly

because of its finality, has been shown to have been misdirected. Such polemical

discussions, while interesting, are, however, better suited for the deliberations in the

chambers of our state and national legislatures. In this appeal, we are not asked to

involve ourselves in those debates, or even in a discussion of the constitutionality of the

death penalty. Instead, we are required to examine only the constitutional ramifications

of court proceedings that are alleged to have infringed John David Stumpf’s right to be

sentenced in accordance with longstanding principles of due process and fundamental

fairness. We conclude that those principles were violated by the state in seeking to

execute Stumpf even after it became clear that the basis for the imposition of the death

penalty had been seriously compromised in the subsequent prosecution of Stumpf’s

accomplice, as further explained below. Indeed, the facts of this case exemplify the

arbitrariness that prior decisions of the United States Supreme Court and of this court

have decried as violative of fundamental constitutional safeguards. As a result, we once

again reverse the judgment of the district court and remand this matter for issuance of

a writ of habeas corpus, unless the State of Ohio conducts a new sentencing hearing for

Stumpf within 90 days of the issuance of this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

This habeas case is now before the Sixth Circuit for the second time. Because

of the lengthy procedural journey this litigation has taken, numerous state and federal

courts have had an opportunity to delve into the facts that led to the conviction and

sentencing of petitioner Stumpf. Rather than add yet another gloss to those facts, we

reiterate the testimony and initial procedural history that the United States Supreme

Court found relevant in its opinion in Bradshaw v. Stumpf, 545 U.S. 175 (2005):

On May 14, 1984, Stumpf and two other men, Clyde Daniel Wesley and

Norman Leroy Edmonds, were traveling in Edmonds’[s] car along

Interstate 70 through Guernsey County, Ohio. Needing money for gas,

1

See, e.g., http://www.deathpenaltyinfo.org/documents/FactSheet.pdf (updated May 20, 2011).

No. 01-3613 Stumpf v. Houk Page 3

the men stopped the car along the highway. While Edmonds waited in

the car, Stumpf and Wesley walked to the home of Norman and Mary

Jane Stout, about 100 yards away. Stumpf and Wesley, each concealing

a gun, talked their way into the home by telling the Stouts they needed

to use the phone. Their real object, however, was robbery: Once inside,

Stumpf held the Stouts at gunpoint, while Wesley ransacked the house.

When Mr. Stout moved toward Stumpf, Stumpf shot him twice in the

head, causing Mr. Stout to black out. After he regained consciousness,

Mr. Stout heard two male voices coming from another room, and then

four gunshots – the shots that killed his wife. Edmonds was arrested

shortly afterward, and his statements led the police to issue arrest

warrants for Stumpf and Wesley. Stumpf, who surrendered to the police,

at first denied any knowledge of the crimes. After he was told that Mr.

Stout had survived, however, Stumpf admitted to participating in the

robbery and to shooting Mr. [Stout]. But he claimed not to have shot

Mrs. Stout, and he has maintained that position ever since.

The proceedings against Stumpf occurred while Wesley, who had been

arrested in Texas, was still resisting extradition to Ohio. Stumpf was

indicted for aggravated murder, attempted aggravated murder, aggravated

robbery, and two counts of grand theft. With respect to the aggravated

murder charge, the indictment listed four statutory “specifications” --

three of them aggravating circumstances making Stumpf eligible for the

death penalty. See App. 117-118; Ohio Rev. Code Ann. § 2929.03

(Anderson 1982). The case was assigned to a three-judge panel in the

Court of Common Pleas.

Rather than proceed to trial, however, Stumpf and the State worked out

a plea agreement: Stumpf would plead guilty to aggravated murder and

attempted aggravated murder, and the State would drop most of the other

charges; with respect to the aggravated murder charge, Stumpf would

plead guilty to one of the three capital specifications, with the State

dropping the other two. The plea was accepted after a colloquy with the

presiding judge, and after a hearing in which the panel satisfied itself as

to the factual basis for the plea.

Because the capital specification to which Stumpf pleaded guilty left him

eligible for the death penalty, a contested penalty hearing was held before

the same three-judge panel. Stumpf’s mitigation case was based in part

on his difficult childhood, limited education, dependable work history,

youth, and lack of prior serious offenses. Stumpf’s principal argument,

however, was that he had participated in the plot only at the urging and

under the influence of Wesley, that it was Wesley who had fired the fatal

shots at Mrs. Stout, and that Stumpf’s assertedly minor role in the murder

counseled against the death sentence. See § 2929.04(B)(6) (directing the

sentencer to consider as a potential mitigating circumstance, “[i]f the

No. 01-3613 Stumpf v. Houk Page 4

offender was a participant in the offense but not the principal offender,

the degree of the offender’s participation in the offense”). The State, on

the other hand, argued that Stumpf had indeed shot Mrs. Stout. Still,

while the prosecutor claimed Stumpf’s allegedly primary role in the

shooting as a special reason to reject Stumpf’s mitigation argument, the

prosecutor also noted that Ohio law did not restrict the death penalty to

those who commit murder by their own hands – an accomplice to murder

could also receive the death penalty, so long as he acted with the specific

intent to cause death. As a result, the State argued, Stumpf deserved

death even if he had not personally shot Mrs. Stout, because the

circumstances of the robbery provided a basis from which to infer

Stumpf’s intent to cause death. The three-judge panel, agreeing with the

State’s first contention, specifically found that Stumpf “was the principal

offender” in the aggravated murder of Mrs. Stout. App. 196.

Determining that the aggravating factors in Stumpf’s case outweighed

any mitigating factors, the panel sentenced Stumpf to death.

Afterward, Wesley was successfully extradited to Ohio to stand trial. His

case was tried to a jury, before the same judge who had presided over the

panel overseeing Stumpf’s proceedings, and with the same prosecutor.

This time, however, the prosecutor had new evidence: James Eastman,

Wesley’s cellmate after his extradition, testified that Wesley had admitted

to firing the shots that killed Mrs. Stout. The prosecutor introduced

Eastman’s testimony in Wesley’s trial, and in his closing argument he

argued for Eastman’s credibility and lack of motive to lie. The

prosecutor claimed that Eastman’s testimony, combined with certain

circumstantial evidence and with the implausibility of Wesley’s own

account of events, proved that Wesley was the principal offender in Mrs.

Stout’s murder – and that Wesley therefore deserved to be put to death.

One way Wesley countered this argument was by noting that the

prosecutor had taken a contrary position in Stumpf’s trial, and that

Stumpf had already been sentenced to death for the crime. Wesley also

took the stand in his own defense, and testified that Stumpf had shot Mrs.

Stout. In the end, the jury sentenced Wesley to life imprisonment with

the possibility of parole after 20 years.

After the Wesley trial, Stumpf, whose direct appeal was still pending in

the Ohio Court of Appeals, returned to the Court of Common Pleas with

a motion to withdraw his guilty plea or vacate his death sentence.

Stumpf argued that Eastman’s testimony, and the prosecution’s

endorsement of that testimony in Wesley’s trial, cast doubt upon

Stumpf’s conviction and sentence. The State (represented again by the

same prosecutor who had tried both Wesley’s case and Stumpf’s original

case) disagreed. According to the prosecutor, the court’s first task was

to decide whether the Eastman testimony was sufficient to alter the

court’s prior determination that Stumpf had been the shooter. Id. at 210.

No. 01-3613 Stumpf v. Houk Page 5

Contrary to the argument he had presented in the Wesley trial, however,

the prosecutor now noted that Eastman’s testimony was belied by certain

other evidence (ballistics evidence[2] and Wesley’s testimony in his own

defense) confirming Stumpf to have been the primary shooter. In the

alternative, the State noted as it had before that an aider-and-abettor

theory might allow the death sentence to be imposed against Stumpf even

if he had not shot Mrs. Stout.

Although one judge speculated during oral argument that the court’s

earlier conclusion about Stumpf’s principal role in the killing “may very

well have had an effect upon” the prior sentencing determination, ibid.,

the Court of Common Pleas denied Stumpf’s motion in a brief summary

order without explanation. That order was appealed together with the

original judgment in Stumpf’s case, and the Ohio Court of Appeals

2

Interestingly, the ballistics evidence clearly did not necessarily implicate Stumpf in the shooting

of Mrs. Stout. We detailed that ballistics testimony in our prior decision in this case as follows:

Of the two bullets that struck [Mr.] Stout, only pieces of each were recovered. Part of

the bullet that struck him between the eyes was recovered during surgery, while a

second fragment was found in the second bedroom. A portion of the bullet that struck

Stout in the top of the head was recovered during surgery, but part of it had to be left in

place. Another bullet was recovered from the mattress of the second bedroom.

Stout’s wife was shot four times in the first bedroom. She died from three gunshots to

the left side of her head. The fourth bullet went through her left wrist and struck her

chest without penetrating the skin of her chest. A fifth bullet was recovered from the

wall of that bedroom, above the headboard of the bed.

The chrome Raven[, Edmonds’s handgun that Stumpf and Wesley had carried into the

home along with Wesley’s black .25 caliber pistol,] was never recovered by the police,

and Stumpf admitted that he had thrown it out of the car window after he and Wesley

had left the Stout residence. The black .25 caliber pistol was recovered by the police

after the men sold it, along with one of Stout’s guns, to an individual in Washington,

Pennsylvania. Ronald Dye, a ballistics expert from the Ohio Bureau of Criminal

Identification and Investigation, a division of the Ohio Attorney General’s office,

testified at Stumpf’s factual basis hearing as to the forensic findings regarding bullets

and cartridge cases recovered from the murder scene. Dye testified that there were eight

spent cartridges found at the scene, that seven of them had been fired by one gun, and

one was fired by a different gun. Dye also said that the black pistol, which had been

recovered by the police, fired one bullet, while the other seven bullets were all fired by

the same gun. That gun could have been the chrome Raven, or one of several other

types of guns.

At Stumpf’s plea proceeding, the prosecutor argued that the ballistics evidence

supported the conclusion that Stumpf had shot Mrs. Stout, since she was apparently shot

with the same weapon used against her husband, saying, “There’s ample evidence to

conclude that this defendant fired all shots that hit anybody, because the same gun fired

all of those shots.” However, during Wesley’s trial, the same prosecutor put Eastman,

Wesley’s cellmate, on the witness stand, to repeat Wesley’s confession to him.

According to Eastman, Wesley told him that after Stumpf had shot Stout in the face, he

dropped the chrome Raven and ran, at which point Wesley picked up the pistol and shot

Mrs. Stout. This version of the crime was also supported by the ballistics evidence that

the black pistol had a tendency to jam after firing just one round, which may have led

Wesley to discard it after shooting it only once.

Stumpf v. Mitchell, 367 F.3d 594, 597-98 (6th Cir. 2004).

No. 01-3613 Stumpf v. Houk Page 6

affirmed, as did the Ohio Supreme Court. See State v. Stumpf, 32 Ohio

St.3d 95, 512 N.E.2d 598 (1987), cert. denied, 484 U.S. 1079, 108 S.Ct.

1060, 98 L.Ed.2d 1022 (1988).

After a subsequent request for state postconviction relief was denied by

the state courts, Stumpf filed this federal habeas petition in the United

States District Court for the Southern District of Ohio in November 1995.

The District Court denied Stumpf relief, but granted permission to appeal

on four claims, including the two at issue here. The United States Court

of Appeals for the Sixth Circuit reversed, concluding that habeas relief

was warranted on “either or both” of “two alternative grounds.” Stumpf

v. Mitchell, 367 F.3d 594, 596 (2004). First, the court determined that

Stumpf’s guilty plea was invalid because it had not been entered

knowingly and intelligently. More precisely, the court concluded that

Stumpf had pleaded guilty to aggravated murder without understanding

that specific intent to cause death was a necessary element of the charge

under Ohio law. See Ohio Rev. Code Ann. §§ 2903.01(B) and (D).

Noting that Stumpf had all along denied shooting Mrs. Stout, and

considering those denials inconsistent with an informed choice to plead

guilty to aggravated murder, the Court of Appeals concluded that Stumpf

must have entered his plea out of ignorance. Second, the court concluded

that “Stumpf’s due process rights were violated by the state’s deliberate

action in securing convictions of both Stumpf and Wesley for the same

crime, using inconsistent theories.” 367 F.3d, at 596. This violation, the

court held, required setting aside “both Stumpf’s plea and his sentence.”

Id., at 616. One member of the panel dissented.

Bradshaw v. Stumpf, 545 U.S. at 178-82 (footnote omitted).

After examining the transcript of Stumpf’s plea hearing, the Supreme Court

disagreed with our analysis regarding the knowing and voluntary nature of the

petitioner’s admission of guilt. Thus, finding that we “erred in concluding that Stumpf

was uninformed about the nature of the charge he pleaded guilty to, [the Court]

reverse[d] that portion of the judgment . . . .” Id. at 186.

The Court determined that we were “also wrong to hold that prosecutorial

inconsistencies between the Stumpf and Wesley cases required voiding Stumpf’s guilty

plea.” Id. at 186-87. Nevertheless, the majority opinion noted that “[t]he prosecutor’s

use of allegedly inconsistent theories may have a more direct effect on Stumpf’s

sentence, . . . for it is at least arguable that the sentencing panel’s conclusion about

No. 01-3613 Stumpf v. Houk Page 7

Stumpf’s principal role in the offense was material to its sentencing determination.” Id.

at 187. Because it was not clear to the Court whether we “would have concluded that

Stumpf was entitled to re-sentencing had [we] not also considered the conviction

invalid,” id., the majority vacated that second portion of our opinion and remanded the

matter to us “to consider . . . the question of how Eastman’s testimony and the

prosecutor’s conduct in the Stumpf and Wesley cases relate to Stumpf’s death sentence

in particular.” Id. at 187-88. We now undertake to comply with that directive.

II. DISCUSSION

A. Standard of Review

Stumpf filed his original habeas corpus petition in federal district court in

November 1995. The provisions of the Antiterrorism and Effective Death Penalty Act

of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), effective April 24, 1996, do not,

therefore, apply to this case. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).

Consequently, we review the district court’s denial of the writ of habeas corpus de novo

and its factual findings for clear error. See McQueen v. Scroggy, 99 F.3d 1302, 1310

(6th Cir. 1996), overruled on other grounds in In re Abdur’Rahman 392 F.3d 174 (6th

Cir. 2004), judgment vacated in Bell v. Abdur’Rahman, 545 U.S. 1151 (2005). We

accord some deference to state-court factual findings, which may be rebutted only by

“clear and convincing evidence.” Id. Such deference, however, applies only to “basic,

primary facts” found by a state court, not to mixed questions of fact and law, which we

also review de novo. See id. Because Stumpf’s due process claim is just such a mixed

question, we subject it to de novo review. See Stumpf v. Mitchell, 367 F.3d at 616 (citing

Williams v. Coyle, 260 F.3d 684, 706-07 (6th Cir. 2001)).

B. State of Ohio’s Affirmative Defenses

In its brief before this court on remand, the State of Ohio first insists that we may

not reach the merits of Stumpf’s due process claim that the Supreme Court directed us

to address. The state offers three rationales for its position: (1) Stumpf failed to present

in the district court a claim that his death sentence was imposed in violation of due

No. 01-3613 Stumpf v. Houk Page 8

process principles; (2) Stumpf also failed to present this claim to the Ohio state courts,

thus procedurally defaulting the issue; and (3) the due process claim seeks application

of a new rule of constitutional law that is barred by the holding of Teague v. Lane, 489

U.S. 288 (1989). Notably, although this case has already been reviewed by the district

court, by this court, and by the Supreme Court, the State of Ohio has not seen fit to raise

these procedural arguments before now. See Bradshaw v. Stumpf, 545 U.S. at 190

(Thomas, J., concurring) (“the State has not argued that Teague v. Lane, 489 U.S. 288,

109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), forecloses Stumpf’s claim that the

prosecution’s presentation of inconsistent theories violated his right to due process”); see

also id. at 191 (Thomas, J., concurring) (“[t]he State also has not argued that Stumpf

procedurally defaulted his due process claim”).

1. Failure to Present Sentencing Claim

The state’s belated contention that the petitioner did not fully litigate in the

district court the due process claim at issue on remand is baseless. In his habeas corpus

petition, Stumpf included, under the heading “seventh claim for relief,” the following

paragraphs:

76) The trial court’s denial of a motion to vacate a sentence, or to

withdraw a plea of guilty which is based upon evidence that did not exist

at the time of trial and which the petitioner could not have presented at

trial, violated the petitioner’s protections under the Fifth, Eighth and

Fourteenth Amendments to the United States Constitution.

77) The trial court would not allow the defense to present a cellmate of

the co-defendant to testify that he heard the co-defendant confess to

being the principal offender. The confession transpired after the

sentencing of the petitioner. The court erroneously ruled that the

confession was not newly discovered evidence.

78) The Ohio Fifth District Court of Appeals erroneously held that it was

not error even though the state of Ohio tried the co-defendant as the

principal in the co-defendant’s trial. The court found the petitioner to be

“one of the principal slayers.” Ohio law defines the principal as the

actual killer. All evidence points to the co-defendant as the principal.

No. 01-3613 Stumpf v. Houk Page 9

It is no doubt true, as claimed by the state, that the habeas petition sought redress

for the failure of the trial court to allow certain evidence, not for the actions of the

prosecution in pursuing conflicting criminal convictions. Nevertheless, the district court

invited briefing and argument and actually ruled upon the very issue that the state now

argues was not before that court. In fact, in a February 2001 opinion, the district judge

specifically addressed Stumpf’s argument that “the testimony of Wesley’s cellmate

implicating Wesley as the actual shooter, entitled petitioner . . . to have a new sentencing

hearing.” Three months later, in overruling Stumpf’s motion to alter or amend the

judgment denying him habeas corpus relief, the district judge again alluded to the fact

that he “was ‘troubled’ by the possibility that the state might have secured petitioner’s

death sentence by arguing that he was the actual shooter, while later arguing during

Wesley’s trial that Wesley was the actual shooter.” It is patently clear to us, therefore,

even if not to the state, that Stumpf did not fail to present this issue to the district court.

The State of Ohio’s waiver argument is meritless.

2. Procedural Default

We next conclude that the state has waived its claim that Stumpf procedurally

defaulted his due process argument by failing to raise it in Ohio state court. Justices

Thomas and Scalia, concurring in the judgment in Bradshaw v. Stumpf, conceded that

the state did not raise procedural default as a defense in a timely manner. See Bradshaw

v. Stumpf, 545 U.S. at 191. Those two justices continued, however, by noting that “[t]he

Court’s opinion does not preclude the State from advancing [such a] procedural

defense[] on remand.” Id. True, but we also have the authority to decline to exercise our

discretion to entertain that argument at this stage of the litigation and, instead, rely upon

the Court’s earlier pronouncement in Banks v. Dretke, 540 U.S. 668, 705 (2004), that

“under pre-AEDPA law, exhaustion and procedural default defenses could be waived

based on the State’s litigation conduct.” In fact, “[i]f the . . . claim was addressed at

some stage of federal proceedings, the [State] would have been obligated to raise

procedural default as a defense, or lose the right to assert the defense thereafter.” Gray

v. Netherland, 518 U.S. 152, 166 (1996) (emphasis added) (citations omitted).

No. 01-3613 Stumpf v. Houk Page 10

Stumpf has argued throughout his habeas proceedings that his death sentence

must be overturned as a result of the state’s duplicitous theories of culpability. Not until

the Supreme Court remanded the matter to this court, however, has the State of Ohio

deemed it necessary to allege any procedural irregularities in responding to and litigating

that claim. Such transparent attempts at gamesmanship at this late date should not be

indulged.

3. Teague v. Lane Bar

Nor does the bar fashioned in Teague v. Lane, 489 U.S. 288 (1989), restrict our

review of Stumpf’s constitutional claim. In Teague, the Supreme Court held that

“[u]nless they fall within an exception to the general rule, new constitutional rules of

criminal procedure will not be applicable to those cases which have become final before

the new rules are announced.” Id. at 310. In their concurring opinion, Justices Thomas

and Scalia correctly quoted Horn v. Banks, 536 U.S. 266, 271 (2002), for the proposition

that “if the State does argue that the defendant seeks the benefit of a new rule of

constitutional law, the court must apply Teague before considering the merits of the

claim.” Bradshaw v. Stumpf, 545 U.S. at 190-91 (Thomas, J., concurring) (first

emphasis added). In this case, however, the State of Ohio “has not argued [until this

remanded review] that Stumpf’s habeas claims were barred as requiring announcement

of a new rule.” Bradshaw v. Stumpf, 545 U.S. at 182 (emphasis added).

“The Teague bar to the retroactive application of new rules is not . . .

jurisdictional.” Schiro v. Farley, 510 U.S. 222, 228 (1994) (citing Collins v.

Youngblood, 497 U.S. 37, 40-41 (1990)). Consequently, “a State can waive the Teague

bar by not raising it.” Id. at 229; see also Godinez v. Moran, 509 U.S. 389, 397 n.8

(1993). Given the State of Ohio’s conscious abandonment of any possible Teague

argument here,3 we, like the Supreme Court, “do not apply the rule of Teague v. Lane

3

Although the State of Ohio does not dispute its failure to raise an explicit Teague defense

previously, it argues on remand that such an affirmative defense can be inferred from its argument in the

district court that “Stumpf failed to set forth an actionable federal claim.” We need not devote much time

to such a proposition that, had it been advanced by the petitioner in a different context, would rightfully

have been subject to a state motion to dismiss on the basis of the claim’s unworkably general nature.

No. 01-3613 Stumpf v. Houk Page 11

. . . to this case.” Bradshaw v. Stumpf, 545 U.S. at 182. Instead, according Stumpf’s

serious allegations of constitutional deprivation the respect they deserve, we choose to

address the merits of those charges.4

C. Due Process Claim

The Supreme Court has directed us on remand to clarify whether Stumpf is

entitled to re-sentencing even if his convictions are constitutionally valid. See Bradshaw

v. Stumpf, 545 U.S. at 187. In making that determination, we must decide whether the

petitioner’s due process rights were abrogated by the prosecution’s insistence on

arguing, during Stumpf’s sentencing hearing, that Stumpf was the sole gunman who

killed Mrs. Stout and, during Wesley’s sentencing hearing, that Wesley was the sole

gunman who murdered Mrs. Stout.

The principle is beyond dispute, both legally and logically, that there exists a

“heightened ‘need for reliability in the determination that death is the appropriate

punishment in a specific case.’” Caldwell v. Mississippi, 472 U.S. 320, 323 (1985)

(quoting Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion)). See

also Oregon v. Guzek, 546 U.S. 517, 525 (2006) (same); Deck v. Missouri, 544 U.S. 622,

632-33 (2005) (“stress[ing] the ‘acute need’ for reliable decisionmaking when the death

penalty is at issue”) (citing Monge v. California, 524 U.S. 721, 732 (1998) (citing

Lockett v. Ohio, 438 U.S. 586, 604 (1978))). An erroneously-imposed prison sentence

Furthermore, we note that the state was presented with numerous opportunities to advance a Teague

defense yet chose not to do so. Even after Stumpf explicitly argued to the district court that Teague did

not bar review of his argument that his due process rights were violated by the prosecution’s use of

inconsistent theories, (JA 1463) the state failed to suggest Teague’s applicability. Even in its supplemental

brief and its reply brief to the district court on the validity of Stumpf’s due process and inconsistent-

theories arguments, the state did not discuss or even mention Teague. See JA 1444-50; 1472-77. Even

in its brief on the same issue to this court, even after we held that the state’s inconsistent theories violated

Stumpf’s due process rights and that such a violation “mandate[d] that Stumpf’s . . . sentence be set aside,”

Stumpf v. Mitchell, 367 F.3d at 616, even in its brief petitioning for rehearing of our decision, even in its

petition for certiorari to the Supreme Court, even in its substantive brief before the Supreme Court, the

state did not take the opportunity even to cite to Teague. Presented with such a scenario, we conclude

without hesitation that the State of Ohio knowingly and purposefully waived its right to avail itself of a

Teague defense and may not now walk away from its history of conscious inaction with a twelfth-hour

gambit designed to forestall review of the merits of the habeas claim in this case. The stakes are simply

too high.

4

Given our resolution of the state’s Teague claim, we need not now decide whether a

determination that a due process violation has occurred in this instance implicates a “new constitutional

rule[ ] of criminal procedure.”

No. 01-3613 Stumpf v. Houk Page 12

may always be commuted or otherwise shortened to ameliorate sentencing error. A

sentence of death, once carried out, may not, of course, be undone. Basic principles of

justice and fairness thus mandate that every effort be undertaken to ensure the reliability

of the capital-sentencing process. As Justice Brennan noted in his separate opinion in

Strickland v. Washington, federal courts “have consistently required that capital

proceedings be policed at all stages by an especially vigilant concern for procedural

fairness and for the accuracy of factfinding.” 466 U.S. 668, 704 (1984) (Brennan, J.,

concurring in part and dissenting in part).

The Due Process Clause of the federal constitution guarantees to every criminal

defendant the right to a fair trial. See, e.g., Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18,

25 (1981). Indeed, “[a] fair trial in a fair tribunal is a basic requirement of due process.”

Turner v. Louisiana, 379 U.S. 466, 472 (1965) (quoting In re Murchison, 349 U.S. 133,

136 (1955)).

In our earlier decision in this matter, we joined with other circuits “in finding that

the use of inconsistent, irreconcilable theories to convict two defendants for the same

crime is a due process violation.” Stumpf v. Mitchell, 367 F.3d at 611. In doing so, we

cited with approval Smith v. Groose, 205 F.3d 1045 (8th Cir. 2000), for the proposition

that such inconsistencies “render[ ] convictions unreliable, given that ‘[the s]tate’s duty

to its citizens does not allow it to pursue as many convictions as possible without regard

to fairness and the search for truth.’” Stumpf v. Mitchell, 367 F.3d at 612 (quoting Smith,

205 F.3d at 1051). We also quoted the following portion of the Ninth Circuit’s decision

in Thompson v. Calderon, 120 F.3d 1045, 1059 (9th Cir. 1997) (en banc), vacated on

other grounds, 523 U.S. 538 (1998), which in turn quoted from a special concurring

opinion by Judge Clark of the Eleventh Circuit in Drake v. Kemp, 762 F.2d 1449, 1479

(11th Cir. 1985) (Clark, J., concurring):

[T]he prosecutor’s theories of the same crime in the two different trials

negate one another. They are totally inconsistent. This flip[-]flopping

of theories of the offense was inherently unfair. Under the peculiar facts

of this case the actions by the prosecutor violate the fundamental fairness

essential to the very concept of justice. . . . The state cannot divide and

No. 01-3613 Stumpf v. Houk Page 13

conquer in this manner. Such actions reduce criminal trials to mere

gamesmanship and rob them of their supposed search for the truth.

The Supreme Court disagreed with our conclusion that the due process violation

undermined Stumpf’s conviction because, under Ohio law, “the precise identity of the

triggerman was immaterial to Stumpf’s conviction for aggravated murder.” Bradshaw

v. Stumpf, 545 U.S. at 187. As a result, the conflicting theories presented to the Stumpf

factfinders and to the Wesley factfinders regarding which of the two men shot and killed

Mrs. Stout on that fateful May 1984 day in no way affected the reliability of the

determination that Stumpf was guilty of aggravated murder in her death.

But, our constitutional duty to ensure the reliability of capital sentencing – to

ensure that all individuals are accorded due process before our state and federal judicial

institutions – is not relieved by the Supreme Court’s limited ruling in Bradshaw v.

Stumpf. Indeed, the Supreme Court itself recognized in its opinion that “[t]he

prosecutor’s use of allegedly inconsistent theories may have a more direct effect on

Stumpf’s sentence . . . for it is at least arguable that the sentencing panel’s conclusion

about Stumpf’s role in the offense was material to its sentencing determination.” Id.

Our examination of the voluminous appellate record leads us to the inescapable

conclusion that it is much more than “arguable” that Stumpf’s sentencers were swayed

by the ultimately-unreliable presentation by the representative of the State of Ohio. In

fact, we are convinced that it would amount to nothing short of complete abdication of

our sworn responsibilities to ensure the reliability of capital sentencing were we to

presume that the state’s later-recanted argument that the petitioner was the triggerman

in Mrs. Stout’s murder did not affect the panel’s sentencing decision. Our confidence

in our conclusion is buttressed not only by common sense, but also by the words of the

various individuals actually involved in the sentencing decision.

For example, during Stumpf’s sentencing hearing, the panel of state-court judges

found “beyond a reasonable doubt that the defendant was the principal offender in Count

No. 01-3613 Stumpf v. Houk Page 14

One of the Indictment.”5 App. 2182. In fact, when ruling upon Stumpf’s petition for a

writ of habeas corpus, the district court explained that “the trial court cited its finding

that petitioner was the actual shooter as a reason, and a very substantial reason, why the

aggravating circumstance outweighed the mitigating factors.” Stumpf v. Anderson, No.

C-1-96-668, 2001 WL 242585, at *48 (S.D. Ohio Feb. 7, 2001) (emphasis added). Of

course, had the panel also had the opportunity to factor into its decision the certitude

with which the State of Ohio argued during Wesley’s trial that Wesley was the principal

offender, it would have been hard-pressed to reach such a doubt-free conclusion.

Indeed, during the hearing on Stumpf’s motion to withdraw his guilty plea

following his conviction and sentencing, one of the three judges who sentenced Stumpf

to death noted, “[I]f we had not been satisfied that Stumpf was, in fact, the trigger man,

the principal offender, and we were satisfied that he was, in fact, an aider and abettor,

that may very well have had an effect upon this Court’s determination of whether the

death penalty should follow. I’m not saying it would, but it’s possible.” App. 2600.

Unfortunately, that uncertainty can never be dispelled because one of the three judges

who served on Stumpf’s sentencing panel died prior to that hearing on the motion to

withdraw the plea. See App. 2579-80. Because Ohio law requires unanimity when a

three-judge panel determines whether aggravating circumstances outweigh mitigating

factors beyond a reasonable doubt, see Ohio Rev. Code Ann. § 2929.03 (D)(3), if the

missing judge in Stumpf’s case had shared that view with conviction, based on new

information concerning the state’s theory of the case, it is evident that Stumpf would not

have been sentenced to death.

We are cognizant of the fact that, at the time of Stumpf’s trial, there was no

evidence that the prosecutor was aware that Eastman’s testimony would implicate

Wesley as the triggerman in Mrs. Stout’s murder. Nevertheless, although the state

argued during Wesley’s trial in support of Eastman’s credibility and against the

plausibility of Wesley’s account of the murder, during Stumpf’s motion to withdraw his

5

Count One of Stumpf’s indictment alleged that Stumpf “did purposely cause the death of another

person, to wit: Mary Jane Stout . . . .” App. 210.

No. 01-3613 Stumpf v. Houk Page 15

guilty plea, the same prosecutor employed a much different tactic. In that later hearing,

the state once again argued that Stumpf was the principal offender and this time sought

to impugn the very testimony of Eastman on which it had relied during Wesley’s trial.

If we are to take seriously the responsibility of ensuring reliable sentencing

determinations in capital cases, we cannot allow the prosecution to play so fast and loose

with the facts and with its theories. To allow a prosecutor to advance irreconcilable

theories without adequate explanation undermines confidence in the fairness and

reliability of the trial and the punishment imposed and thus infringes upon the

petitioner’s right to due process.

We are not alone in reaching such conclusions. In In re Sakarias, 106 P.3d 931,

944 (Cal. 2005), for example, the California Supreme Court held that the “use of

irreconcilable theories of . . . culpability, unjustified by a good faith justification for the

inconsistency, is fundamentally unfair, for it necessarily creates the potential for – and,

where prejudicial, actually achieves – . . . increased punishment on a false factual basis

for one of the accuseds.” Likewise, in Jacobs v. Scott, 513 U.S. 1067 (1995), Justice

Stevens, dissenting from the denial of stay of execution in a capital case wrote:

[F]or a sovereign State represented by the same lawyer to take flatly

inconsistent positions in two different cases – and to insist on the

imposition of the death penalty after repudiating the factual basis for that

sentence – surely raises a serious question of prosecutorial misconduct.

In my opinion, it would be fundamentally unfair to execute a person on

the basis of a factual determination that the State has formally

disavowed.

Concurring in the Supreme Court’s decision in the present case, Justice Souter also noted

that:

[When Stumpf] challenged his death sentence (along with his conviction)

on the basis of the prosecution’s position in the Wesley case . . . the State

did not repudiate the position it had taken in the codefendant’s case, or

explain that it had made a mistake there. Instead, it merely dismissed the

testimony of the witness it had vouched for at Wesley’s trial . . . and

maintained that Stumpf’s death sentence should stand for some or all of

the reasons it originally argued for its imposition. At the end of the day,

No. 01-3613 Stumpf v. Houk Page 16

the State was on record as maintaining that Stumpf and Wesley should

both be executed on the ground that each was the trigger-man, when it

was undisputed that only one of them could have been.

Bradshaw v. Stumpf, 545 U.S. at 189 (Souter, J., concurring) (citation omitted).

As we stated in our prior opinion in this case, “there is more than a reasonable

probability that the three-judge panel would not have sentenced Stumpf to death had the

prosecution not employed inconsistent and irreconcilable theories.” Stumpf v. Mitchell,

367 F.3d at 617. In fact, even the Ohio Supreme Court has recognized that, under Ohio

law, not being the principal offender is normally a “powerful mitigating factor,” and that

“[v]ery few death sentences have been approved against persons who were not the

principal offender.” State v. Green, 738 N.E.2d 1208, 1224 (Ohio 2000) (citation

omitted).

The state contends, nevertheless, that both Stumpf’s and Wesley’s sentencing

proceedings were reliable because Wesley’s jury, in sentencing Wesley to life in prison

with the possibility of parole after 20 years, obviously disbelieved Eastman’s testimony

regarding Wesley’s role in Mrs. Stout’s murder. According to the state, that jury

determination justifies the harsher penalty imposed upon Stumpf. The argument ignores,

however, the very real probability that the sentencing decision rendered by Wesley’s

jury was influenced in large part by the jury’s knowledge that the prosecutor had already

argued that Stumpf was the principal offender and had already convinced a three-judge

panel to impose the death penalty upon Stumpf as a result. In short, Wesley’s jury was

driven not so much by its disbelief of Eastman as by its unwillingness to imagine that

the prosecution would engage in such a flippant, macabre game of chance with people’s

lives.

In our system of justice, criminal prosecutors bear special responsibility in

ensuring the fairness of all proceedings. As noted 76 years ago by the Supreme Court:

[Because the prosecutor] is in a peculiar and very definite sense the

servant of the law, the twofold aim of which is that guilt shall not escape

or innocence suffer . . ., [i]t is as much his duty to refrain from improper

No. 01-3613 Stumpf v. Houk Page 17

methods calculated to produce a wrongful conviction as it is to use every

legitimate method to bring about one.

Berger v. United States, 295 U.S. 78, 88 (1935). Consequently, “[a]lthough the

prosecutor must prosecute with earnestness and vigor and ‘may strike hard blows, he is

not at liberty to strike foul ones.’” Smith, 205 F.3d at 1049 (quoting Berger, 295 U.S.

at 88).

Here, the actions of the State of Ohio in the Stumpf and Wesley sentencing

proceedings charged at least to the line separating hard blows from foul blows. Whether

the prosecutor in the two cases actually crossed that line is not for us to decide in this

opinion. Rather, we need only determine whether such double-dealing likely affected

the sentencing decision in Stumpf’s case. The state argues “that Stumpf’s death sentence

did not depend on proof that he actually killed Mrs. Stout.” Appellee’s Br. on Remand

at 17. We must conclude, however, that it did. Stumpf’s sentencers, persuaded by the

first of the prosecution’s contradictory arguments, found “beyond a reasonable doubt”

that Stumpf was the principal offender and, as such, deserved to be put to death. The

fact that the State of Ohio was later able to argue in Wesley’s sentencing hearing that

such was not the case after all, yet still object to any effort to reduce Stumpf’s

punishment, either casts grave doubt on the reliability of Stumpf’s sentence or is

evidence of an attempt by the prosecution to perpetrate a fraud on the state court. We

choose to believe that it is the former and thus hold that the petitioner’s due process

rights were violated in this case.

The state insists, however, that even if a constitutional violation occurred in this

matter, Stumpf cannot establish that he was prejudiced by it. In reaching that

conclusion, the state relies upon the fact that the Supreme Court of Ohio, “[i]n

independently determining that Stumpf’s death sentence was appropriate, . . . specifically

considered the testimony of Wesley’s cellmate during Wesley’s trial.” Appellee’s Br.

on Remand at 20 (citing State v. Stumpf, 512 N.E.2d 598 (1987)). Likewise, the district

court, in denying habeas relief to Stumpf, concurred that “the Supreme Court of Ohio

cured any potential flaw by independently determining that the aggravating circumstance

No. 01-3613 Stumpf v. Houk Page 18

outweighed the mitigating factors, even in light of the testimony by Wesley’s cellmate.”

Stumpf v. Anderson, 2001 WL 242585, at *48. These attempted justifications miss the

point, however. The relevant question now before us is not what weight should be given

to Eastman’s testimony during Wesley’s sentencing hearing, but rather whether the

prosecution’s inconsistent theory and arguments that Stumpf was the principal offender

-- even though evidence and testimony indicated that he might not be -- influenced the

decision of Stumpf’s sentencers to impose a penalty of death. Again, the record before

us requires us to answer with a resounding “yes.”

CONCLUSION

For the reasons set forth above, we conclude that Stumpf’s due process rights

were violated by the prosecution’s arguments leaving the impression with Stumpf’s

sentencers that the petitioner was the principal offender in the murder of Mrs. Stout,

even though the state had evidence and a belief that co-defendant Wesley was actually

the triggerman in Mrs. Stout’s murder. Because all indications are that the three-judge

panel that sentenced Stumpf to death would not have done so had the state not persisted

in its efforts at duplicity, we also hold that the petitioner was prejudiced by that

constitutional violation. We thus once again REVERSE the judgment of the district

court and REMAND this matter for issuance of a conditional writ of habeas corpus

unless the State of Ohio elects to accord Stumpf a new sentencing hearing within 90 days

of the issuance of this opinion.

No. 01-3613 Stumpf v. Houk Page 19

_________________

DISSENT

_________________

BOGGS, Circuit Judge, dissenting. The majority has resurrected a new

substantive right of their own invention, which made its first appearance in Stumpf v.

Mitchell, 367 F.3d 594 (6th Cir. 2004), vacated by Bradshaw v. Stumpf, 545 U.S. 175

(2005), and apparently had all along been lurking somewhere within the Fourteenth

Amendment. In its current iteration, the new right protects a convicted murderer from

being sentenced to death where mitigating evidence (i.e., evidence that does not

undermine the murder conviction itself but that might have counseled towards a more

lenient sentence) discovered after sentencing is later used by the prosecution against a

different defendant. Notably, the due process violation is not that mitigating evidence

exists that is later discovered, which would not by itself offend the Constitution, Noel

v. Norris, 322 F.3d 500, 504 (8th Cir. 2003); see Herrera v. Collins, 506 U.S. 390, 400

(1993),1 but, curiously, that the newly discovered evidence is later used by the

prosecution against a different defendant. Somehow, that purely later conduct

retroactively renders the earlier sentence unconstitutional.

Consider a hypothetical case. B is killed in a horrifying fashion. A is tried for

the murder of B, is convicted, and due to the terrible nature of the crime, is sentenced to

death. A’s trial is not merely in compliance with constitutional standards, but is a model

trial. The most scrutinizing criminal lawyers available comb through the trial record in

search of some plausible legal claim to bring on appeal, but they find nothing, and A’s

sentence is correctly affirmed on direct review. The majority’s new right has no import

at this time. Many years later, a witness comes forward with new information—the

witness explains that C and A killed B in concert, and that C’s conduct was more vile.

1

Although new evidence may be used to substantiate other constitutional claims, such as

prosecutorial misconduct in the form of knowingly using perjured testimony, the existence of new evidence

of innocence, or of “innocence of the death penalty” as in this case, is not in and of itself a constitutional

violation. In any case, Stumpf’s new evidence does not speak to any problematic conduct that occurred

at his trial, as in the ordinary case, but rather at Wesley’s trial, when the prosecutor adopted a theory based

on the new evidence.

No. 01-3613 Stumpf v. Houk Page 20

Still, the majority’s new right has no import. But wait—the prosecutor acts on the

witness’s testimony and tries C for B’s murder, arguing that, even though A was already

convicted of the murder, it was in fact C that committed the most horrifying aspects of

the crime. Sure, the jury acquits C, but that is apparently besides the point. Now, the

majority’s new right finally jumps into action. The prosecutor in C’s trial has denied

A—yes, A—the right to be sentenced fairly, in violation of the Due Process Clause of

the Fourteenth Amendment.

I do not agree with that application of the Constitution in the slightest,2 and as

I explained in my first dissent in this case, I believe that the out-of-circuit cases that the

majority relies upon for its new rule are readily distinguishable. Stumpf v. Mitchell, 367

F.3d at 618–22 (Boggs, J., dissenting). I would therefore affirm the decision of the

district court dismissing Stumpf’s petition for a writ of habeas corpus.

If ever there were a case in which to adopt the majority’s new right, this is not

it. Indeed, the majority’s opinion in many places obfuscates the timeline of what

happened here, and argues as if the state withheld information from the Ohio courts, or

argued factually inconsistent theories at the original sentencing or at the same time. That

is simply not correct. Stumpf’s trial and sentencing were based on all the evidence then

available, and there was no error in those proceedings.3 Subsequent to that time, new

evidence came to the attention of the state in the form of a statement by Eastman, a

cellmate of co-defendant Wesley. Such statements are always viewed with some

skepticism, and in any case, there is no claim that the state was responsible for bringing

2

I note that the majority’s repeated references to a federal court’s obligation to ensure accuracy,

maj. op. at 12, 13, 15, in the context of death-penalty habeas appeals simply has no support in Supreme

Court jurisprudence. We do not sit to indulge our own sense of justice as to how state-court proceedings

should come out. We do not have a freestanding license to decide how the strength of a case appeals to

us without reference to existing laws and procedures. It is true that Justice Marshall on occasion,

dissenting alone, used such a phrase, see, e.g. Barefoot v. Estelle, 463 U.S. 880, 938 (1983), but that vague

statement, pregnant with the outcome preferences of the judges charged with implementing it, is

appropriately not the law.

3

See Bradshaw v. Stumpf, 545 U.S. at 186–87 (unanimously reversing, without argument, the

majority’s holding invalidating Stumpf’s guilty plea and its holding that inconsistent prosecutorial theories

invalidated his conviction, and remanding to consider whether the inconsistent theories could have affected

Stumpf’s death sentence).

No. 01-3613 Stumpf v. Houk Page 21

forth this evidence, or that the state was in any way derelict in its duties in not

discovering it earlier.

Clearly, there is a timeline problem for the majority—how did the prosecution

violate the Constitution at Stumpf’s trial with respect to evidence that did not yet exist?

The majority attempts to deal with this issue by focusing in part on the prosecutor’s

actions in response to Stumpf’s post-trial motion for resentencing, which occurred after

Wesley’s trial. The majority faults the prosecutor for apparently making an argument

that they disapprove of (by ostensibly trying to have it both ways) rather than making

the argument that they apparently would approve of and simply confessing that he was

wrong at Wesley’s trial. See maj. op. at 15. But this is not a situation where the

prosecutor misled or bamboozled a jury. Rather, the prosecutor made an argument,

referencing all available evidence, to a panel of judges. The state did not hide the ball,

and the judges were not bamboozled. I know of no case or principle in which an

otherwise unblemished prosecution can be held to have violated the Constitution because

a federal appellate panel disapproves of the nature of the prosecutor’s oral arguments to

a judge at a post-trial proceeding.

The majority’s opinion here emphasizes the dilemma in which the state was

placed and the nature of today’s ruling. If the state had simply ignored the evidence, it

apparently would have now been in no difficulty. See Dist. Attorney’s Office for Third

Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2319–20 (2009) (no Brady obligation to

disclose exculpatory evidence discovered post-trial). Indeed, the majority is apparently

clear that, if the prosecution had simply decided not to present the cellmate evidence

against Wesley and achieved the same life sentence that it did here, there would be no

inconsistency, and thus no due-process violation. See maj. op. at 15, 18. That

concession emphasizes the bizarro nature of the majority’s argument that you can

somehow violate the rights of A, who has had a meticulously fair proceeding, by the

decision that you make as to how to proceed in the trial of C.

The inconsistent-theory cases raised by the majority virtually all relate to a

state’s contemporaneous presentation of inconsistent theories that could have an effect

No. 01-3613 Stumpf v. Houk Page 22

on the trial at issue, and that could result in factually impossible inconsistencies

impacting both defendants. Here, the alleged violation is how the prosecutor chose to

deal with the later-discovered evidence, in a wholly separate proceeding. It is much

closer to the alleged inconsistency in our case of Getsy v. Mitchell, 495 F.3d 295 (6th

Cir. 2007), where we rejected, en banc, a similar argument. At bottom, what happened

here is that some additional evidence, the statement of the cellmate, came to light after

the proceedings were concluded. That new material was presented in a proper way to

the courts of Ohio, was litigated by Stumpf in the proper order, and Stumpf lost.

Further, even if I were to agree that the prosecutor4 somehow retroactively

violated Stumpf’s constitutional rights, I fail to see how Stumpf was prejudiced by that

violation. Once the Eastman testimony became available to him, Stumpf went back to

the same Ohio panel that sentenced him.5 The particulars of Eastman’s testimony, and

of its handling at Wesley’s trial, were all fully explored on the record in Wesley’s trial,

and were then placed before the Ohio panel hearing Stumpf’s motion for resentencing

based on that new evidence. That panel had the power to undo Stumpf’s death sentence,

but declined to do so, even after being fully informed of all of the facts, including the

ones that the majority finds dispositive as to the prosecutor’s action.

The majority emphasizes, at page 14, a statement by one judge, made during oral

argument on Stumpf’s motion for resentencing, that “if [the panel] had not been satisfied

that Stumpf was, in fact, the trigger man, the principal offender, and we were satisfied

that he was, in fact, an aider and abettor, that may very well have had an effect upon this

Court’s determination of whether the death penalty should follow. I'm not saying it

would, but it’s possible.” It should first be emphasized just how qualified that statement

4

Because Wesley’s trial was wholly subsequent to and unconnected to Stumpf’s, it is simply

fortuitous that the same prosecutor was involved. The second trial could have just as easily been

prosecuted by a different person or even, under some circumstances, in a different jurisdiction. In any

case, I fail to see how the prosecutor’s judgment at Wesley’s trial, which was based upon previously

unavailable evidence, can somehow impeach his earlier motives or actions and render the original,

previously constitutional, proceeding unconstitutional.

5

The panel was comprised of two of the three original judges, the third having died in the interim.

The two judges proceeded to hear Stumpf’s motion for resentencing, premised on the new evidence, and

they agreed that, so long as they were unanimous, there was no reason to bring in a third judge. Stumpf

does not challenge that decision here.

No. 01-3613 Stumpf v. Houk Page 23

is—the judge merely expressed orally, in the course of a discussion with the prosecutor,

the possibility that the panel might have declined to impose the death penalty if it were

satisfied that Stumpf was not the principal offender. Indeed, the judge simply

emphasized the prosecutor’s framing of the issue (i.e., whether Stumpf was the principal

offender and, if not, whether the panel would still have imposed the death penalty), and

in no way indicated a leaning as to how the panel felt about the matter. That statement

does not appear in any way in the court’s written decision and order, indicating that the

panel either concluded, after deliberation, that it was satisfied that Stumpf was the

principal offender or, alternatively, that a contrary finding would not have made a

difference in its decision to impose the death penalty. The panel had full opportunity

and ability to state any skepticism as to its earlier action, or to indicate that it had some

belief in the statement by the cellmate, and it did not do so. Thus, the majority’s

speculation at pages 13 through 15 as to its view of the evidence is simply unsupported.

Certainly, the panel had the same options that it did at the original hearing. The

panel could have concluded either that (1) Stumpf was the killer, (2) Wesley was the

killer, or (3) either way, Stumpf deserved the death penalty for his involvement in this

heinous crime, for which he was criminally responsible even if Wesley pulled the

trigger. Notably, the panel also had inculpatory evidence that it did not have before, in

the form of Wesley’s trial statements that supported the prosecution’s view of

events—that Stumpf was the person who killed Mary Jane Stout. And, of course, it is

worth mentioning the fact that the Eastman testimony was not credited by the Wesley

jury, which apparently did not believe the cellmate’s version of the facts, or, in any

event, did not find it so compelling as to sentence Wesley to death. In light of the Ohio

panel’s review of that evidence, and its decision to leave Stumpf’s death sentence intact,

I do not see how Stumpf has demonstrated any probability that he was prejudiced by the

prosecutor’s decision to present the new evidence and argue a new theory at Wesley’s

trial.

In addition, even if I were to share the majority’s vision of the Fourteenth

Amendment as applied to this case, Teague v. Lane clearly bars the retroactive

No. 01-3613 Stumpf v. Houk Page 24

application of the majority’s new constitutional right to Stumpf. See 489 U.S. 288, 306

(1989). Notably, all of the cases that the majority relies upon for its rule were decided

long after Stumpf’s conviction became final in 1988, when the Supreme Court denied

certiorari. See Stumpf v. Ohio, 484 U.S. 1079. Accordingly, “the result was not dictated

by precedent existing at the time the defendant’s conviction became final,” and the rule

is new for purposes of Teague. Teague, 489 U.S. at 301. Further, neither of Teague’s

two exceptions—new limitations on criminal lawmaking authority and new “watershed”

rules of criminal procedure—apply here. DeCastro v. Branker, 642 F.3d 442, 458 & n.4

(4th Cir. 2011).

Although their conclusion conflicts with the views of the only two Justices to

consider the issue, pursuant to Circuit precedent,6 I agree with the majority that the state

has waived its Teague defense. Bradshaw v. Stumpf, 545 U.S. at 191 (Thomas, J.,

concurring) (“The Court’s opinion does not preclude the State from advancing [a

Teague] defense[] on remand in support of Stumpf’s death sentence.”). However,

whether we must apply Teague is only the threshold inquiry. As the Supreme Court has

held, “a federal court may, but need not, decline to apply Teague if the State does not

argue it.” Horn v. Banks, 536 U.S. 266, 271 (2002) (quoting Bohlen, 510 U.S. at 389).

Accordingly, after determining that the state waived Teague and we are not required to

apply it, step two is to consider whether we should apply Teague.

On that point, the majority’s analysis is unconvincing. The majority suggests

that the “stakes are simply too high” to allow the state’s Teague defense “to forestall

review of the merits” of Stumpf’s due-process claim. Maj. op. at 11 n.3. That, however,

is flatly inconsistent with Teague itself. The very holding of Teague is that courts must

avoid reaching the merits where, such as here, the petitioner seeks “[a]pplication of

constitutional rules not in existence at the time [his] conviction became final.” Teague,

489 U.S. at 309, 316. Accordingly, “forestalling review” would not undermine the

application of Teague not just in this case, but in all cases. Further, one of the Court’s

6

In a three-opinion split decision, a panel of this court held that a state waives its Teague defense

by failing to raise it before the district court. Lyons v. Stovall, 188 F.3d 327, 345–46 (6th Cir. 1999)

(Gilman, J., concurring); id. at 347–48 & n.1 (Moore, J., dissenting).

No. 01-3613 Stumpf v. Houk Page 25

primary considerations in adopting Teague’s nonretroactivity rule was that similarly

situated defendants should be treated similarly. Id. at 315. Accordingly, a determination

in a particular case that, for one reason or another, “the stakes are too high,” is no reason

to ignore Teague. That conclusion is reinforced here, where the majority’s rule will have

only the most sporadic impact. Significantly, the majority’s rule is not clearly

established Supreme Court precedent, see 28 U.S.C. § 2254(d), and post-AEDPA habeas

petitioners are therefore unable to avail themselves of it, regardless of whether the state

properly raised Teague.

Because the concerns motivating Teague do not depend on whether the state

promptly raises the issue, I agree with Judge Gilman’s concurrence in Lyons, in which

he argued that “a federal court should presumptively apply the Teague analysis sua

sponte whenever a defendant tries to raise a new constitutional rule for the first time on

collateral review.” 188 F.3d at 346; accord id. at 339 n.8 (Clay, J., concurring)

(“[I]rrespective of the state’s preservation of its Teague defense, based upon the new rule

proposed by Petitioner, if ever there was a time for this Court to raise and decide a

Teague claim sua sponte, surely it is here.”). In this case, where there is no indication

that the state strategically sought to “sandbag” this court, see id. at 346, where both

parties fully briefed and argued the issue, see Albrecht v. Horn, 485 F.3d 103, 120 (3d

Cir. 2007), and where we are more than capable of making a reasoned judgment on the

issue, see Goeke v. Branch, 514 U.S. 115, 118 (1995), I would hold that Teague should

apply, even though I must agree with the majority that the state waived the argument.

No. 01-3613 Stumpf v. Houk Page 26

For these reasons, I respectfully dissent, both on the merits and pursuant to

Teague’s nonretroactivity principle.7

7

This case was originally heard on December 11, 2002. After a decision on April 28, 2004, and

a subsequent trip to the United States Supreme Court, it was heard again on July 26, 2007—four years ago.

During that interval, the state has filed two motions to expedite a decision, one on August 6, 2010, and a

second on June 2, 2011. As is obvious, in a death penalty appeal, a failure to decide has the same short-run

effect as a decision in favor of the condemned—it prevents his execution.

In the absence of a decision by the panel, there is no process allowing for the court as a whole

to take the decision en banc. Thus, the only remedy available (from the Sixth Circuit) to a litigant in the

position of the State of Ohio here is the purely hortatory motion that the state filed here—a motion that,

like the very decision that it seeks to expedite, is also solely within the power of the panel and cannot be

taken en banc (if it ever could be) in the absence of a decision on that motion. The only remedy available

under current rules is a petition to the Supreme Court for certiorari before judgment. See Sup. Ct. R. 11.