Byrd v. Collins

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0121P (6th Cir.)

File Name: 00a0121p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



JOHN W. BYRD, JR.,



Petitioner-Appellant,





No. 96-3209

v.



>

TERRY L. COLLINS, Warden, 

Respondent-Appellee. 

1

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 94-00167—James L. Graham, District Judge.

Argued: March 11, 1998

Decided and Filed: April 6, 2000

Before: JONES, SUHRHEINRICH, and BATCHELDER,

Circuit Judges.

_________________

COUNSEL

ARGUED: Richard J. Vickers, PUBLIC DEFENDER’S

OFFICE, OHIO PUBLIC DEFENDER COMMISSION,

Columbus, Ohio, for Appellant. Stuart A. Cole, OFFICE OF

THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio,

for Appellee. ON BRIEF: Richard J. Vickers, PUBLIC

DEFENDER’S OFFICE, OHIO PUBLIC DEFENDER

COMMISSION, Columbus, Ohio, Steven M. Brown,

1

2 Byrd v. Collins No. 96-3209

Columbus, Ohio, for Appellant. Stuart W. Harris, OFFICE

OF THE ATTORNEY GENERAL, CAPITAL CRIMES

SECTION, Columbus, Ohio, for Appellee.

SUHRHEINRICH, J., delivered the opinion of the court, in

which BATCHELDER, J., joined. JONES, J. (pp. 91-109),

delivered a separate dissenting opinion.

_________________

OPINION

_________________

SUHRHEINRICH, Circuit Judge. In August 1983, the

Court of Common Pleas in Hamilton County, Ohio, sentenced

Petitioner, John W. Byrd, Jr., to death for the aggravated

murder of Monte Tewksbury. The Ohio state courts

repeatedly rejected Petitioner’s claims for relief. In March

1994, only days before his scheduled execution, Petitioner

filed his first petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. The U.S. District Court for the Southern

District of Ohio denied the petition. We now AFFIRM that

denial.

I. Background

A. Facts

On the evening of April 17, 1983, Monte B. Tewksbury

was working alone as the night clerk at the King Kwik

convenience store at 9870 Pippin Road in Hamilton County,

Ohio. Monte was married and was the father of three

children.

At approximately 11:00 p.m., two robbers entered the store

in masks; one of them carried a bowie knife with a five-inch

blade. The robbers removed all of $133.97 from the cash

register. In addition, they took Monte’s Pulsar watch,

wedding ring, and his wallet which contained cash, credit

cards, and an automobile registration slip. Then, as Monte

stood with his hands raised and his back to the robbers,

No. 96-3209 Byrd v. Collins 3

Petitioner plunged his bowie knife to the hilt in Monte’s side,

resulting in a puncture wound to the liver that caused massive

internal bleeding. The two robbers ripped the inside

telephone out of the wall and fled. At approximately 11:10

p.m., Robert Shephard was driving northbound on Pippin

Road. He observed two men run from the King Kwik and

enter a large red van parked at the corner of Pippin and

Berthbrook. The van then drove off.

Although severely injured, Monte managed to exit the store

and get to the outside telephone. He called his wife, Sharon

Tewksbury, told her he had been robbed and hurt, and that she

should call the police and an ambulance. At that time, Cecil

Conley, a prospective customer, arrived at the King Kwik.

Conley found Monte standing outside the building and

leaning against the wall next to the telephone. Monte was

bleeding from his side. Conley helped Monte into the store,

went back to the telephone which was still off the hook, and

spoke briefly to Sharon. Conley also advised Sharon to call

an ambulance, and he himself called the police. Monte told

Conley “I’m going to die,” and that he had been robbed and

cut with a knife. Monte described the robbers as two white

men wearing stocking masks.

Sharon arrived at the scene and held her dying husband in

her arms as he repeated his statements. Police and medical

help then came, and Monte was transported to a hospital.

While en route, Monte made several statements to the effect

that he did not understand why he had been stabbed, because

he had been cooperative and had given the robbers everything

they requested. Monte also made a statement to the effect of

“Thank God I didn’t see it coming,” which supports the

conclusion that his back was to his assailants when he was

stabbed. Almost immediately after he was taken to the

emergency room, Monte’s heart stopped. Despite heroic

efforts to save his life, Monte died at 1:15 a.m., April 18,

1983, from exsanguination resulting from his stab wound.

That night, a short time after the King Kwik robbery, Jim

Henneberry, a clerk at a nearby U-Totem store, was standing

4 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 109

at the cash register. A customer, Dennis Nitz, was playing a adequately develop evidence which may establish that the

video game near the front door when two robbers entered the findings were actually erroneous. Such a ruling would defeat

store wearing masks. Henneberry realized what was the entire purpose of the pre-AEDPA § 2254(d) – which,

occurring and fled to a room in the rear of the store. One of again, presumes, rather than requires, the correctness of state

the robbers chased after Henneberry with a knife. The robber findings. Yet this appears to be exactly what the district court

tried unsuccessfully to force open the door to the room. did in this case, seemingly determining that the state court

Meanwhile, the other robber pushed Nitz back when he findings were binding, rather than ascertaining whether Byrd

attempted to leave; however, Nitz was able to dodge him and had alleged sufficient facts to overcome the presumption.

get out. The robbers were unable to open the cash register, so

they took it with them. Robin Hannon, a resident of an The district court abused its discretion by not allowing

apartment located near the U-Totem, was disturbed by the discovery and an evidentiary hearing on Byrd’s claims of false

noise from a loud muffler. Hannon looked outside and testimony and suppression. Since the record already supports

observed two people getting into a large red van parked in the a number of Byrd’s claims of constitutional error, it is clear

U-Totem lot. The van had a defective tail light.1 that he has, at least, alleged sufficient facts to require a full

and fair evidentiary hearing on his claims. Moreover, the

Shortly after 1:00 a.m. on April 18, 1983, two police district court erred by determining that the presumption of

officers from Forest Park in Hamilton County were seated in correctness necessarily foreclosed an evidentiary hearing.

a marked police cruiser eating their lunch. The officers were The applicability of the presumption of correctness and the

in a K-Mart parking lot, which was located in an area propriety of an evidentiary hearing are two interrelated, yet

containing principally commercial establishments, some of fundamentally distinct, issues. Byrd has yet to be afforded

which had recently been burglarized. The officers had been any meaningful opportunity to conduct discovery, and has

advised approximately forty-five minutes earlier by their consistently been denied an evidentiary hearing.

supervisor about the incident at the King Kwik. As the

officers watched, a red cargo van drove by at a slow rate of Accordingly, at minimum, Byrd should be granted

speed. The van pulled into the K-Mart lot, and its headlights discovery and an evidentiary hearing limited to the specific

were turned off. A few minutes later, the van’s headlights evidentiary requests he made previously before the district

came back on, and the van left the lot. However, the van court, and to those requests pertinent to his false testimony

returned within five minutes, again at low speed, from the and suppression claims. Given that there already exists

direction opposite to that in which it had gone moments significant evidence that Byrd’s conviction was secured in

before. violation of bedrock constitutional guarantees of due process

and fundamental fairness, discovery is the least that is

The police officers became suspicious, followed the van, required before this court pushes him further down the road

and, upon inquiry of the police dispatcher, learned the identity toward execution.

of its owner. The van pulled into a parking lot adjacent to a

closed United Dairy Farmers store. The officers pulled

behind the van after summoning back-up assistance. One of

1

In the course of the subsequent police investigation, Hannon

identified the van, which had remained in police custody, as the one she

saw outside the U-Totem on the night in question.

108 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 5

the credibility of Ronald Armstead was subject to extensive the passengers, later identified as John Eastle Brewer, exited

cross-examination, that there is no credible evidence that the van and approached the police car. Brewer identified

Ronald Armstead lied in his testimony, and that Ronald himself as “David Urey” and told the police he had no

Armstead was not given consideration by the State in return identification. Brewer provided inconsistent stories about

for his testimony. why he was in the area. One of the officers asked Brewer to

remain in the cruiser while he approached the van. The van’s

The majority contends that the August 5, 1988 discovery driver, William Danny Woodall, and Petitioner provided the

order provided Byrd with sufficient opportunity to develop his officer with identification, which was called in to the

claims. However, a close read of the record reveals that this dispatcher. Although there were no current warrants for

order had little effect on Byrd’s ability to obtain the either Petitioner or Woodall, the dispatcher reported that both

information he sought. For example, Byrd asserts that he had prior felony convictions. The officer shined a flashlight

filed a “Motion For Release of Records” in July 1988, and the inside the van and saw coins on the floor. There were

trial court issued the August 5 order in response to that stocking masks and a knife located in a tray on the dashboard.

motion. According to Byrd, “[defense] counsel sought all A Shell credit card in Sharon’s name was lying on the floor

available records through use of this motion.” J.A. at 279. under the passenger seat. There was also what appeared to be

Thus, despite the majority’s claim to the contrary, see ante at fresh blood on the interior side of the driver’s seat. A drawer

39, Byrd did indeed attempt to utilize the August 5 order to from a cash register was in the back of the van.

obtain information, but was thwarted in his attempts. Byrd

further asserts that he filed two additional motions, prior to B. Indictment and Trial

the July 1988 motion, requesting discovery from the Hamilton

County Sheriff’s Office and the Hamilton County On the basis of this evidence, Petitioner, Brewer, and

Prosecutor’s Office. Byrd contends that this information Woodall were arrested. In an indictment returned on May 26,

would have detailed contacts between inmates Ronald 1983, the three were charged with aggravated murder and

Armstead, Virgil Jordan, Marvin Randolph, Robert Jones and three counts of aggravated robbery. Petitioner also was

the prosecutor’s or sheriff’s office. Byrd also requested charged with two death penalty specifications; i.e., that he

discovery to determine why Armstead was chosen among four was the “principal offender” who committed the aggravated

jailhouse informants who offered testimony against him. murder of Monte Tewksbury while committing or attempting

Byrd asserts that the documents establish that the prosecutor’s to commit the aggravated robbery of the King Kwik, as well2

office knew Armstead was returning to prison, and shed light as the aggravated robbery of Monte Tewksbury himself.

on any consideration Armstead received for his testimony. Pleas of not guilty were entered as to all charges on May 31,

Without adequate discovery in these areas, Byrd has not been 1983. Petitioner’s counsel filed a series of pre-trial motions,

afforded a full and fair opportunity to factually develop his including one seeking the suppression of evidence taken from

claims. the van. The Hamilton County Court of Common Pleas

denied this motion on July 26, 1983. Jury selection for

Even if Byrd has not established a § 2254(d) exception, he Petitioner’s trial began on August 1, 1983, and lasted five

has nevertheless overcome the presumption of correctness by days.

averring sufficient facts, which if fully developed, would

entitle him to relief. It would be unjustifiably circular for this

Court to hold that a state court’s findings were binding,

2

without providing the petitioner an opportunity to fully and In Ohio, the “principal offender” means “the actual killer.” State v.

Penix, 513 N.E.2d 744, 746 (Ohio 1987).

6 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 107

The main evidence introduced at trial to prove that conducting evidentiary hearings. The presumption of

Petitioner was the principal offender, i.e., the individual who correctness is just that – a rebuttable presumption, not an

actually stabbed and murdered Monte, came from Ronald inexorable command. See 28 U.S.C. § 2254(d) (providing

Armstead, who at the time of trial, was serving a sentence at that petitioner must “establish by convincing evidence that the

the Cincinnati Workhouse (Cincinnati Correctional Institute). factual determination by the State was erroneous” when a

Armstead testified that he recalled Petitioner’s, Brewer’s, and § 2254(d) exception is inapplicable); Brown v. Davis, 752

Woodall’s arrival at the Workhouse and that, practically from F.2d 1142, 1147 (6th Cir. 1985) (“To overcome the

the date of their arrival, they had bragged about committing presumption of correctness, the petitioner must establish by

the King Kwik robbery and Monte’s murder. Armstead convincing evidence that the factual determination in the state

testified that, approximately three weeks after the robbery, he court was erroneous.”). Within the operation of “sound

was with Petitioner, Brewer, Woodall, and others when a discretion,” district courts maintain significant authority to

P.M. Magazine television program aired featuring footage of receive evidence pertaining to the legitimacy of federal

the Tewksbury family. The footage, which included singing claims. This discretion to order discovery or hold evidentiary

by Monte’s daughter, was taped the day before Monte was hearings, however, becomes an obligation when “specific

murdered. According to Armstead, Petitioner stated during allegations before the court show reason to believe that the

the telecast that Monte deserved to die and, either then or at petitioner may, if the facts are fully developed, be able to

another time, admitted to Armstead that he had killed Monte demonstrate that he is . . . entitled to relief.” Harris v.

because Monte had “gotten in the way.” Armstead also Nelson, 394 U.S. 286, 300 (1969). In these circumstances, “it

testified that Petitioner sought advice from him regarding is the duty of the court to provide the necessary facilities and

whether the prosecution could detect blood stains on a knife procedures for an adequate inquiry.” Id. (emphasis added);

blade if it had been cleaned.3 see Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (holding

it is an abuse of discretion to deny discovery when specific

The State called a total of twenty-six witnesses at the guilt factual allegations, if fully developed, would entitle petitioner

stage. Petitioner, on the other hand, called only one witness, to relief); see also Lynott v. Story, 929 F.2d 228, 232 (6th Cir.

a police officer who identified some of Woodall’s clothing. 1991); McDaniel v. United States Dist. Court for the Dist. of

Closing arguments were presented on August 12, 1983, after Nev., 127 F.3d 886, 888 (9th Cir. 1997)(per curiam).

ten days of trial. Late that evening, the jury asked the court to

have Armstead’s testimony read back. Over objection, the At least three exceptions to the § 2254(d) presumption of

court reporter read the entirety of Armstead’s testimony to the correctness apply in this case: (i) the fact-finding procedure

jury in open court. Shortly thereafter, the jury returned its employed by the state court was not adequate to afford a full

verdict finding Petitioner guilty of aggravated murder and two and fair hearing; (ii) the material facts were not adequately

counts of aggravated robbery.4 The jury also found Petitioner developed at the state court hearing; and (iii) the factual

guilty of the two death penalty specifications. findings made by the state court were not supported by the

record. 28 U.S.C. §§ 2254(d) (2), (3) & (8). Even the district

court acknowledges that Byrd’s discovery requests were

consistently rebuffed by Ohio courts. Indeed, Byrd has never

3

been afforded the opportunity to fully discover relevant

Armstead’s testimony is set forth in greater detail in Part II-A, infra. documents, depose witnesses, or adequately develop his

4

claims. Additionally, several of the “facts” found by the state

The trial court severed the count in the indictment charging court appear to be unsupported by the record – namely that

Petitioner with aggravated robbery of the U-Totem.

106 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 7

The majority dismisses this request by concluding that since The sentencing phase of the trial began on August 16, 1983.

Byrd was unable to establish an exception to the presumption Petitioner called one witness, his mother, Mary Lou Ray.

of correctness afforded state court factual findings under 28 Mrs. Ray testified that she gave birth to Petitioner when she

U.S.C. § 2254(d) (West 1995), the district court properly was sixteen years old and her marriage to Petitioner’s father

deferred to state findings of fact and, consequently, did not ended shortly thereafter. She testified that Petitioner’s father

abuse its discretion in denying further discovery. The went to jail shortly after their son was born and she had not

majority’s analysis is flawed, however, both in its discussion seen her ex-husband in eighteen years. She also discussed her

of the inapplicability of §2254(d), and in its consolidation of subsequent failed marriages to two men, both of whom

the discovery determination with its resolution of the abused Petitioner. For instance, Mrs. Ray testified that she

presumption of correctness issue. married Ed Ryan, and the marriage lasted three years. She

stated that Ryan “was mean to Johnny [Petitioner]. When

In habeas proceedings initiated prior to the effective date Johnny got older, he blacked his eyes. . . . [Petitioner]

of the Antiterrorism and Effective Death Penalty Act of 1996, couldn’t do nothing right to please him.” Tr. at 1762. Mrs.

28 U.S.C. § 2254, federal courts must presume the correctness Ray also described a learning disability from which Petitioner

of state court factual findings unless2 an exception under the suffered throughout his schooling. According to Mrs. Ray,

former version of §2254(d) applies. See Lindh v. Murphy, Petitioner was extremely frustrated by the ridiculing he

521 U.S. 320, 326-327 (1997); Gilliam v. Mitchell, 179 F.3d received from other children. Finally, Mrs. Ray recounted

990, 991 (6th Cir. 1999). When an exception does apply, and how at age eleven Petitioner assisted another young child who

the habeas petitioner’s factual allegations, if proved, would had fallen into a frozen creek.5 On cross-examination, Mrs.

entitle him to relief, the district court is required to hold an Ray admitted that she had filed several petitions with the

evidentiary hearing. See McMillan v. Barksdale, 823 F.2d juvenile court alleging her inability to maintain control of her

981, 983-84 (6th Cir. 1987); Rector v. Johnson, 120 F.3d 551, son. She also conceded that she had never reported any abuse

562-63 (5th Cir. 1997) (“[A] federal habeas court must allow of Petitioner to the authorities.

discovery and an evidentiary hearing only where a factual

dispute, if resolved in the petitioner’s favor, would entitle him As permitted under Ohio law, Petitioner then made an

to relief and the state has not afforded the petitioner a full and unsworn statement to the jury. He expressed remorse for

fair evidentiary hearing.”) (quoting Ward v. Whitley, 21 F.3d what happened to Monte and his family, noted that he was

1355, 1367 (5th Cir. 1994)); Jeffries v. Blodgett, 5 F.3d 1180, only 19 years old, and made a plea for his life. The State

1187 (9th Cir. 1993) (“A federal evidentiary hearing is presented no witnesses at the sentencing hearing. Later the

mandatory if (1) petitioner’s allegations, if proven, would same day, the jury found that the aggravating circumstances

establish the right to relief, and (2) the state court trier of fact outweighed the mitigating factors and recommended

has not, after a full and fair hearing, reliably found the imposition of the death penalty. On August 19, 1983, the trial

relevant facts.”). court adopted the jury’s recommendation and sentenced

Petitioner to death as the principal offender in the felony

Moreover, even when an exception is inapplicable, federal

courts are not thereby prevented from ordering discovery or

5

In an opinion setting forth its reasons for imposing the death

2 penalty, the trial court concluded: “This being the only socially

See Ante at 34, n.23 (listing statutory factors under former version redeeming act of the defendant’s life offered or otherwise shown by the

of § 2254(d)). evidence it does not rise to the level of a mitigating factor.” JA at 1134.

8 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 105

murder charge and to consecutive jail terms of seven to counsel. However, in this case – on these facts – the failure

twenty-five years on the two aggravated robbery counts. even to challenge such serious and damaging prosecutorial

misconduct falls far beyond the bounds of effective

The trial court issued a written opinion on August 30, 1983, representation.

explaining that it had found beyond a reasonable doubt that

the aggravating circumstances outweighed the mitigating Likewise, Byrd’s appellate counsel must be deemed

factors in Petitioner’s case. The court noted that the jury ineffective for not raising, on direct appeal, trial counsel’s

found two statutory aggravating circumstances; i.e., that the failure to challenge the stated prosecutorial misconduct. See,

murder occurred in connection with two different aggravated e.g., United States ex rel. Barnard v. Lane, 819 F.2d 798, 805

robberies. The court concluded “that defendant’s killing of (7th Cir. 1987) (finding appellate counsel ineffective for

the victim was completely unnecessary and cold blooded failure to raise trial counsel’s ineffectiveness on direct

since the victim had submitted peacefully and turned over his appeal). Certainly it is not within the bounds of objectively

personal possessions and money. This killing . . . evidenced reasonable professional conduct, or constitutionally

the particularly malicious outlook of this defendant.” JA at permissible appellate strategy, to fail to raise prejudicial

1130. The court further stated: “The proved facts of the violations of Sixth Amendment rights.

aggravating circumstances reveal a pattern of willful, cold-

blooded disregard for human life and values well beyond In addition, since the prejudice analysis is essentially

what this judge has seen in other cases.” JA at 1132. identical to the Brady materiality determination, see

Strickland, 466 U.S. at 694; see also Tucker v. Prelesnik, 181

The court then reviewed the mitigating factors in F.3d 747, 754-55 (6th Cir. 1999), for the reasons discussed

Petitioner’s case. The court specifically rejected Petitioner’s previously, the failure of Byrd’s attorneys to challenge the

youth as a consideration, noting that Petitioner was “the discussed prosecutorial misconduct prejudiced Byrd’s right to

oldest 19 year old this Judge has ever seen.”6 JA at 1131. a fair trial.

The court also considered the nature and circumstances of the

offense, listed under Ohio law as possible mitigating factors. III.

However, the court noted the unnecessary and brutal nature of

the murder and commented as to the evidence of the incident If the majority is unwilling to acknowledge the

at the U-Totem store as well. constitutional errors that appear on the face of this record,

Byrd should, at the very least, be granted discovery and an

The only mitigation evidence the trial court believed worthy evidentiary hearing to explore his claims that: 1) Armstead

of consideration was the evidence of Petitioner’s unhappy testified falsely concerning Byrd’s role in the murder of

childhood, lack of paternal love and affection, and some Monte Tewksbury; 2) the prosecution intentionally failed to

degree of abuse. The court stated that there was nothing correct the false testimony; and 3) the prosecution actually

introduced at trial which showed that Petitioner’s childhood suppressed evidence relevant to Armstead’s impeachment.

experiences resulted in any emotional scarring that could Since Byrd has averred facts sufficient to support Brady

violations because the prosecution should have known that

Armstead testified falsely, he has certainly raised sufficient

6 facts to justify an evidentiary hearing to further substantiate

Similarly, a concurring opinion in the Ohio Supreme Court his claims.

remarked that “the evidence in this record demonstrates that Byrd’s

chronological age of nineteen does not accurately reflect his maturity.”

State v. Byrd, 512 N.E.2d 611, 626 (Ohio 1987) (Brown, J., concurring).

104 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 9

A. manifest itself later in life or explain his behavior on the night

in question. The court concluded: “To give credence to this

We apply a two-part test to determine whether a criminal suggested mitigation would be an affront to the sensitivities

defendant was denied effective assistance of counsel. First, of the thousands of law-abiding, hard-working citizens of this

we ascertain whether counsel’s performance was state who had a similar childhood and have matured to an

professionally deficient; second, we determine whether the adulthood of exemplary existence.” JA at 1134. The court

deficient performance prejudiced the defendant’s also disregarded Petitioner’s statement during the penalty

constitutional interests. See Strickland v. Washington, 466 phase concerning drinking and using drugs on the night in

U.S. 668, 687 (1984); Rickman v. Bell, 131 F.3d 1150, 1154 question as being “self-serving” and “not under oath.” With

(6th Cir. 1997); Gravley, 87 F.3d at 785. In assessing respect to Petitioner’s alleged learning disability, the court

counsel’s performance, we inquire whether “counsel’s expressly held that “[i]t should be fairly obvious to even a

representation fell below an objective standard of person of low mentality that if you bury a bowie knife to its

reasonableness,” as measured by “prevailing professional hilt in the chest of someone, the victim may die as a result

norms.” Rickman, 131 F.3d at 1154 (quoting Strickland, 466 thereof, and that the perpetrator will suffer the full

U.S. at 687-88). This objective reasonableness standard punishment provided by law.” JA at 1134. Based on its

encompasses strategic litigation choices that simply fail to determination that this mitigating evidence was insufficient to

bear fruit. See Strickland, 466 U.S. at 689. counteract the aggravating circumstances, the court held that

death was the appropriate sentence in this case, and it directed

In this case, there is no objectively reasonable professional that Petitioner be executed on January 27, 1984.

norm of capital defense practice that suggests counsel should

remain mute while a prosecutor engages in egregious C. Appeals

prosecutorial vouching and wild factual speculation. See

Gravley, 87 F.3d at 785-86 (holding that defense counsel After his sentencing, Petitioner was appointed new counsel

provided ineffective assistance by failing to object to to represent him on appeal. In his appellate brief, Petitioner

numerous instances of prosecutorial misconduct during trial raised twenty separate assignments of error. On February 5,

and closing argument). In a case that turns on the testimony 1986, the Ohio Court of Appeals for the First Appellate

of a jailhouse informant, it is a gross dereliction of duty for a District (Hamilton County) (hereinafter referred to as the

capital defense lawyer to sit silently while a prosecutor Hamilton County Court of Appeals), affirmed both

declares that the State of Ohio “believe[s]” the testimony. It Petitioner’s conviction and sentence. State v. Byrd, No. C-

is similarly deficient representation for capital defense 830676, 1986 WL 1512 (Ohio Ct. App. 1 Dist., Feb. 5, 1986).

counsel to fail to object to outrageous prosecutorial On August 12, 1987, the Ohio Supreme Court rejected

speculation as to a defendant’s purported motive in allegedly essentially the same claims. State v. Byrd, 512 N.E.2d 611

committing a murder, or the whereabouts of unrecovered key (Ohio 1987). The state supreme court concluded that this

evidence. While the failure to object to apparent prejudicial case “involve[s] a completely compliant victim who gave

error may often be predicated upon trial strategy, see Byrd no reason to stab him. We find that the death penalty is

Strickland, 466 U.S. at 689, there is no acceptable tactical not inappropriate considering the senseless nature of the

justification for silence on these issues. If this case did not so murder and the similarity to other cases in which the death

indispensably depend on the testimony of one individual, the penalty was upheld.” Id. at 626. The U.S. Supreme Court

substantial deference the Constitution affords criminal denied a petition for certiorari. Byrd v. Ohio, 484 U.S. 1037

defense lawyers might encompass the inaction of Byrd’s (1988).

10 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 103

While his direct appeal was still pending, Petitioner filed a the merits of Byrd’s claims, it is apparent that the bulk of

motion for a new trial. Although it was filed on December 6, them lack merit. However, given the failure of Byrd’s trial

1983, the motion was not ruled upon for almost six years. On counsel to object to widespread prosecutorial misconduct, see

September 19, 1989, the trial court denied the motion. The supra Part I, and the failure of Byrd’s appellate counsel to

Hamilton County Court of Appeals subsequently affirmed this raise issues pertaining to prosecutorial misconduct and the

denial. State v. Byrd, No. C-890659, 1991 WL 17781 (Ohio credibility of Armstead’s testimony, it is clear that Byrd was

Ct. App. 1 Dist., Feb. 13, 1991). denied his Sixth Amendment right to effective assistance of

counsel.

Following Petitioner’s direct appeals, and while his motion

for a new trial was pending, Petitioner filed a post-conviction

relief petition with the Hamilton County Court of Common

Pleas. The court denied a request by Petitioner to consolidate

his post-conviction petition with his motion for a new trial of counsel in a postconviction hearing. As long as no direct

and then denied the post-conviction petition without a hearing appeal was taken, or the claim of incompetent counsel was not

on October 2, 1989. On February 13, 1991, the Hamilton raised and adjudicated on a direct appeal, res judicata does not

County Court of Appeals reversed and remanded. State v. bar the adjudication of this issue in postconviction proceedings.

Byrd, No. C-890699, 1991 WL 17783 (Ohio Ct. App. 1 Dist., 448 N.E.2d 452, 454 (Ohio 1983) (internal quotations and citation

Feb. 13, 1991). The court of appeals stated that the common omitted). Shortly after Cooperrider, in an opinion seemingly applying the

pleas court’s decision did not recite that it had reviewed the Cooperrider principle, the Ohio Supreme Court addressed the merits of

totality of the record before denying the petition. Id. at *2. an ineffective assistance of trial counsel claim, after it noted that the claim

Despite obtaining a remand from the court of appeals, was not raised on direct appeal. See State v. Decker, 502 N.E.2d 647, 649

& n.3 (Ohio 1986). All of the cases cited by the majority regarding the

Petitioner appealed the judgment of the appellate court to the supposed consistency and clarity of the Cole rule are after 1990 – well

Ohio Supreme Court. On May 20, 1991, the state supreme after Byrd had sought to vindicate his Sixth Amendment rights under state

court granted the State’s motion to dismiss the appeal, post-conviction proceedings. See Ante at ¶ 203-204. Given these

effective as of May 15, 1991. State v. Byrd, 573 N.E.2d 665 ambiguous statements by the Ohio Supreme Court, we certainly cannot

(Ohio 1991). conclude that the Cole rule was sufficiently established and enforced to

justify default of Byrd’s claim of ineffective assistance of trial counsel.

In any event, to the extent his trial counsel claim was defaulted, it is clear

On April 1, 1991, the common pleas court again denied the that the default was “cause[d]” by the ineffectiveness of Byrd’s appellate

post-conviction relief petition without a hearing. The trial counsel. See, e.g., Gravley, 87 F.3d at 785. Further, given that this Court

court explained: “The Court of Appeals has erroneously has itself recognized the murkiness of Ohio’s procedural framework for

concluded that this Court did not review the entire record presenting claims of ineffective assistance of appellate counsel, see

when previously ruling on this case . . . . This Court did Manning v. Alexander, 912 F.2d 878, 881-83 (6th Cir. 1990), we cannot

conclude that the Murnahan rule – not clearly articulated until 1992 – was

previously review the entire record, and now, pursuant to the sufficiently established and followed to bar our consideration of Byrd’s

Court of Appeals decision, has again reviewed the entire ineffective appellate counsel claims. Thus, irrespective of the Supreme

record.” State v. Byrd, No. B-831662, at 1 (Hamilton County Court’s resolution of Carpenter v. Mohr, 163 F.3d 938 (6th Cir. 1998),

C.P., Apr. 1, 1991). The Hamilton County Court of Appeals cert. granted sub nom, Edwards v. Carpenter, 120 S.Ct. 444, (U.S. Nov.

affirmed this judgment on February 26, 1992. State v. Byrd, 8, 1999) (No. 98-2060), Byrd’s appellate ineffectiveness claims are not

barred by an “adequate” state procedural bar, and therefore can properly

No. C-910340, 1992 WL 37761 (Ohio Ct. App. 1 Dist., Feb. serve as “cause” for any purported default of his trial ineffectiveness

26, 1992). In particular, the court of appeals determined that claims. Finally, as should be apparent from the following discussion of

Petitioner’s ineffective assistance of appellate counsel claims the merits of Byrd’s claims, he was clearly prejudiced by the failure to

receive effective assistance.

102 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 11

which the testimony of convicted felon and jailhouse were not properly raised in a post-conviction petition. Id. at

informant Armstead can be credited; the vouching results in *6. The Ohio Supreme Court declined to hear Petitioner’s

the presentation of Armstead as an upstanding member of the appeal of the denial of his post-conviction petition. State v.

prosecutor’s “our people”; the factual speculation allows for Byrd, 596 N.E.2d 472 (Ohio 1992).

the creation of an imaginary evidentiary predicate to

undergird Armstead’s testimony; and the victim impact After failing to persuade the state courts to hear his

evidence predisposes the jury to grant Armstead every benefit ineffective assistance of appellate counsel claims in a petition

of the doubt as it, understandably, seeks to make someone pay for post-conviction relief, Petitioner filed an application for

for the damage done to the Tewksbury family. In this context, delayed reconsideration with the Hamilton County Court of

confidence in the outcome of Byrd’s trial must be, and is, Appeals on June 17, 1992. On October 1, 1992, the court of

seriously undermined. One cannot, in good conscience, blink appeals issued an order in which it stated that it would not

at such substantial constitutional impropriety with full consider any of these claims because they were untimely.

comprehension of its deadly effects. In these circumstances, State v. Byrd, No. C-830676 (Ohio Ct. App. 1 Dist., Oct. 1,

judicial neglect transforms the justice system into an 1992). Following the court of appeals’s refusal to hear his

accomplice to constitutional transgression. claims, Petitioner pursued two different courses. First,

Petitioner appealed that refusal to the Ohio Supreme Court.

II. On October 27, 1993, the state supreme court affirmed the

judgment of the court of appeals in a one-sentence order.

Byrd also claims that his trial and appellate counsel were State v. Byrd, 621 N.E.2d 407 (Ohio 1993). Second,

ineffective in violation of the Sixth Amendment. Initially, I Petitioner filed a motion for delayed reinstatement of his

note that Byrd has not procedurally defaulted his ineffective direct appeal to the Ohio Supreme Court. The court denied

assistance of trial and appellate counsel claims, 1and therefore the motion without elaboration in another entry issued on

those claims are preserved for federal review. Turning to October 27, 1993. State v. Byrd, 621 N.E.2d 409 (Ohio

1993). Motions to reconsider both orders were denied on

December 15, 1993, and the Ohio Supreme Court scheduled

1 an execution date of March 15, 1994.

The majority primarily relies on the Ohio Supreme Court’s decision

in State v. Cole, 443 N.E.2d 169 (Ohio 1982) for its conclusion that Byrd

procedurally defaulted his ineffective assistance of trial counsel claims. Then, on March 7, 1994, only eight days before his

It is settled that only state procedural bars that are deemed “adequate” to scheduled execution, Petitioner filed a petition for a writ of

support the state’s judgment are given force by federal courts. See habeas corpus pursuant to 28 U.S.C. § 2254. “That

Coleman v. Thompson, 501 U.S. 722, 729 (1991). This adequacy formidable filing included 29 claims for relief and filled

determination requires that a state procedural rule be actually enforced almost 300 pages.” Collins v. Byrd, 510 U.S. 1185, 1186

and “firmly established and regularly followed.” Maupin v. Smith, 785

F.2d 135, 138 (6th Cir. 1986); Ford v. Georgia, 498 U.S. 411, 423-24 (1994) (Scalia, J., dissenting from denial of the application to

(1991). On one hand, the Ohio Supreme Court concluded in Cole that a vacate stay of execution). The U.S. District Court for the

claim is barred by res judicata when a defendant, represented by new Southern District of Ohio rejected Petitioner’s habeas petition

counsel, fails to raise on direct appeal a claim of ineffective assistance of on grounds of inexcusable delay. However, we granted a stay

trial counsel that can be resolved without reference to evidence outside of execution. Among other things, our order granted

the record. See 443 N.E.2d at 170. However, one year later in State v.

Cooperrider, the Ohio Supreme Court held: Petitioner “120 days to allow for further investigation and

discovery of possible habeas claims,” id. at 1187 (internal

Appellant should have no fear that the doctrine of res judicata quotations omitted), as well as “leave . . . to amend the

will prevent him from raising the issue of ineffective assistance

12 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 101

petition within sixty (60) days of this order to include any from jail. This videotape had little, if any, probative value

newly discovered claims,” Id. at 1187-88 (internal quotations respecting Armstead’s testimony, and to the extent it did shed

omitted). Upon application by the State, the U.S. Supreme minimal light on the circumstances surrounding Byrd’s

Court declined to vacate the stay. Petitioner’s case was purported jailhouse confession, the State certainly could have

transferred to a different district court judge. On December presented alternative evidence that carried less potential to

28, 1995, following three separate opinions disposing of the inflame and prejudice the jury. One can comprehend the

claims raised, the district court entered an order denying the relevance of this kind of material during the sentencing phase

petition for a writ of habeas corpus and dismissing the action. where the sentencer needs to respond to “the specific harm

Petitioner now appeals from the district court’s denial of caused by the defendant,” see Payne, 501 U.S. at 825. But

habeas relief. such a visceral appeal as this – with a highly attenuated

connection to any material fact respecting Byrd’s guilt – is

II. Ronald Armstead inappropriate in the context of determining whether a

defendant is guilty of a capital crime.

A. Testimony Regarding Petitioner’s Confession

D.

The first issues that we will consider focus upon the

testimony of Ronald Armstead. All agree that Armstead’s While it may be that each specific instance of prosecutorial

testimony was vitally important to the jury’s determination misconduct might not per se warrant a new trial, taken as a

that Petitioner was the principal offender in the aggravated whole, the cumulative effects of these improprieties certainly

murder of Monte Tewksbury. Armstead testified that, denied Byrd a constitutionally fair trial. See United States v.

following their arrests, Petitioner, Brewer, and Woodall were Young, 470 U.S. 1, 11 (1985) (holding that a prosecutor’s

transported to Block A at the Cincinnati Workhouse where conduct must be analyzed in context to determine if defendant

Armstead was an inmate. Armstead testified that Petitioner denied a fair trial). In Francis, 170 F.3d at 552, we recently

subsequently confessed to stabbing Monte. The following ordered a new trial despite our findings that the specific

excerpts of Armstead’s testimony are the most crucial: instances of prosecutorial vouching and improper factual

speculation were not individually sufficient to warrant a new

Q [by the prosecution]: And what were some of the trial. We concluded: “[W]hen we review the numerous

other questions that they asked you and talked to you examples of impropriety in this case together and in the

about? context of the entire trial, a new trial is appropriate.” Id.; see

also Gravley v. Mills, 87 F.3d 779, 790 (6th Cir. 1996)

A [by Armstead]: Well, they was doing a lot of (granting habeas petition given numerous instances of

bragging, you know, about their case, period. Byrd prosecutorial misconduct).

(indicating) and Brewer, I talked to them in Byrd’s

cell. . . . He [Petitioner] was telling me about how he had For similar reasons, it is clear that the cumulative effect of

stabbed that gentleman out there at the King Kwik, you the numerous prosecutorial improprieties in this case denied

know, and he wanted to be sure that they didn’t, wasn’t Byrd a constitutionally fair trial. The only way the majority

able to find any blood stains on the knife, you know. He can reach a contrary conclusion is to focus myopically on

wanted to, you know, as much information that he could each specific instance of prosecutorial misconduct as if it

get from my standpoint, how would they be able to find occurred in a vacuum. The prosecutor’s conduct, however, is

any blood on the knife if they cleaned it. symbiotic. The Brady violations create an environment in

100 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 13

of substantiation. Morever, it transforms a trial from . . .

deliberate and sober fact-finding to visceral and capricious

guesswork. Q: Let me ask you this question. Did Defendant Byrd

specifically tell you that he’s the one that stabbed Monte

Finally, the prosecutor introduced substantial victim impact Tewksbury?

evidence during the guilt phase of the trial. While the

Supreme Court has recently held that such evidence is A: Yes, he did.

permissible during the sentencing phase of a capital trial, it

has not similarly approved of such evidence during the guilt Q: How did he say that?

phase. See Payne v. Tennessee, 501 U.S. 808, (1991).

Indeed, five of the six Justices in the Payne majority wrote or A: Okay. See, he kept on worrying, he, you know, he

joined separate concurrences, reiterating that the Court’s kept on worrying about that knife, so like he had got

holding applied only to the sentencing phase of capital trials. some stamps, so I was in the cell talking with him first

See id. at 830 (O’Connor, J., joined by White and Kennedy, and then Brewer came in and then we just started, they

JJ., concurring) (“[A] state may legitimately determine that just started asking me questions, and he said, “Yeah, I

victim impact evidence is relevant to a capital sentencing killed him, I killed him, you know, because he was in my

proceeding.”); id. at 833 (Scalia, J., joined by O’Connor and motherfu _ _ king way, f _ _ k him,” you know. That’s

Kennedy, JJ., concurring) (“The Court correctly observes the the whole attitude they took the whole time they were

injustice of requiring the exclusion of relevant aggravating there, they don’t care, you know. He [Petitioner] don’t

evidence during capital sentencing. . . .”); id. at 835 (Souter, care (indicating).

J., joined by Kennedy, J., concurring) (“To my knowledge,

our legal tradition has never included a general rule that Q: Did Brewer tell you who took the money?

evidence of a crime's effects on the victim and others is, A: Brewer took the money. He [Petitioner] stabbed him

standing alone, irrelevant to a sentencing determination of the (indicating).

defendant’s culpability.”). While it may be true that victim

impact evidence related to the underlying crime will Tr. at 1547-52. In the district court, the Hamilton County

customarily be disclosed during the guilt phase, see id. at 840 Prosecutor’s Office submitted affidavits asserting that

(Souter, J., concurring), such disclosure must be limited by its Armstead had provided the prosecutors with details about the

probative relevance respecting material facts. See, e.g., murder that were known only to the police and that had not

Bennett v. Angelone, 92 F.3d 1336, 1348 (4th Cir. 1996). been provided to the media.

In Byrd’s case, the prosecutor played a highly empathetic B. Petitioner’s Challenges to Armstead’s Testimony

television news magazine videotape of Tewksbury and his

family, during the testimony of Ronald Armstead. The On appeal, Petitioner posits several challenges to

videotape was played without audio so that all the jury Armstead’s testimony. First, Petitioner contends that either

observed were the highly-charged and undoubtedly heart- of the following is true: (1) That Armstead and the

wrenching images of one who had been taken away from his prosecution had agreed prior to the time that Armstead

family by a senseless crime. The majority asserts that the testified that Armstead would receive favorable consideration

videotape was relevant to Armstead’s testimony since Byrd in an upcoming parole revocation hearing he was facing in

allegedly confessed to Armstead while watching the program exchange for his testimony and that Armstead testified falsely

14 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 99

that no such deal had been made7; or (2) even if no deal had improper for a prosecutor to inform the jury as to purported

been reached between Armstead and the prosecution, facts not in evidence during closing argument. See United

Armstead nevertheless testified falsely when he stated that he States v. Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995) (“A

was not facing additional charges at the time of Petitioner’s prosecutor's statement in a closing argument is improper if the

trial. Second, Petitioner alleges that Armstead’s testimony statement brings to the jury’s attention purported facts that are

about Petitioner’s confession was false in all material not in evidence and are prejudicial.”); Bess, 593 F.2d at 753

respects. In support of his position, Petitioner presented (“An attorney’s job arguing a case before a jury is to persuade

affidavits from several individuals who were incarcerated that body, based solely on the proof at trial and reasonable

with Armstead and Petitioner in the Cincinnati Workhouse in inferences that can be deduced therefrom.”); United States v.

the Spring of 1983. Petitioner asserts that these affidavits Gallardo-Trapero, 185 F.3d 307, 320 (5th Cir. 1999) (holding

show that Armstead and another inmate, Virgil Jordan, were that “a prosecutor’s closing argument cannot roam beyond the

involved in a scheme to testify falsely against Petitioner in evidence presented during trial”).

order to further their8 own causes with the Hamilton County

Prosecutor’s Office. Under any of these theories, Petitioner In this case, the prosecutor engaged in wild and inexcusable

factual speculation during his closing argument. Without any

evidentiary predicate whatsoever, the prosecutor concluded

7 that since Byrd’s boyhood home was in the same area as the

We note that Armstead was never asked directly whether he had store where Tewksbury was killed, “on numerous occasions

received any consideration from the State in exchange for his testimony. [Byrd] was face to face with Monte Tewksbury, saw him, and

Presumably, Petitioner is referring to the prosecutor’s question on re-

direct examination, which asked Armstead to “tell the Jury and Judge why recognized him.” J.A. at 3912. In attempting to explain why

you are here testifying?” Tr. at 1570. Tewksbury’s blood was not found on the recovered knife, the

prosecutor hypothesized -- again without any evidentiary

8 predicate -- that Byrd had wiped the blood off the knife with

Marvin Randolph’s affidavit claimed that Jordan was the originator

of a plan to help himself, Armstead, Randolph, and another inmate, Paul a missing t-shirt sleeve and dumped the sleeve “out in

Sargent, by concocting a story that Petitioner had confessed, using details Hamilton County in the northwest side with blood all over it.”

of the robbery and murder gleaned from news accounts. Robert Jones’s J.A. at 3921-22. Given that this hypothesis was wholly

affidavit stated that he overheard Armstead and Jordan discussing this

plan. Elwood Jones, Jr., claimed both that he had overheard Jordan and unsupported by introduced evidence, the prosecutor, of

Armstead putting their story together, and that Armstead later admitted to course, could not identify the location of the sleeve.

him that Armstead had lied during Petitioner’s trial and had made a deal However, he decided to take a guess at the sleeve’s location

with the prosecutor that Armstead would be released from prison if he anyway, speculating: “Maybe [it’s in] the same place Monte

testified. Elwood Jones also produced a letter allegedly written by Tewksbury’s ring is. Maybe the same place the top of the

Armstead that recants Armstead’s testimony. A handwriting examiner in cash register is. But that is the explanation of what happened

state court concluded that the letter had not been written by Armstead and

that there were things about the letter which suggested that Elwood Jones to the other sleeve.” J.A. at 3921. The majority has not

had written it himself. Finally, in the district court, Petitioner submitted identified any evidentiary predicate from which the prosecutor

an affidavit from one of his post-conviction counsel. The letter claimed could reasonably infer these purported facts. There is a good

that Jordan had told her that he and Armstead agreed to fabricate a story reason for this omission: there is no evidence to substantiate

concerning Petitioner’s confession. However, Jordan refused to sign an the prosecutor’s overzealous theorizing. Similar to

affidavit to that effect.

prosecutorial vouching for witness credibility, such

The State, on the other hand, submitted affidavits in response. These speculation places the government’s prestige behind

affidavits denied the existence of any type of deal between Armstead and uncorroborated putative facts that have not survived the rigor

the Hamilton County Prosecutor’s Office, and also affirmatively asserted

98 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 15

strikingly similar to what we see here. In that case, the contends that the State violated his right to due process when

prosecutor stated that he “believe[d] beyond a reasonable it presented testimony from a key witness which it knew was

doubt” that the defendant committed the charged crime. Id. false and which it neither corrected nor disclosed to

at 753; see also United States v. Kerr, 981 F.2d 1050, 1053 Petitioner’s counsel. See Brady v. Maryland, 373 U.S. 83

(9th Cir. 1992) (finding improper vouching when prosecutor (1963). Thus, Petitioner argues that we should reverse his

stated, “I think [the witness] was candid. I think he is capital conviction and vacate his death sentence.

honest.”). We characterized such direct prosecutorial

vouching as “egregious,” “astonish[ing],” and “inexcusable.” Petitioner’s third argument is an alternative one. He

Bess, 593 F.2d at 753, 757. There is no other way to describe contends that the state courts denied him discovery and an

the prosecutor’s statements in this case. The essential evidentiary hearing on these claims. Therefore, Petitioner

question is whether this vouching constitutes reversible error. asks us, at a minimum, to vacate the district court’s judgment

and remand Petitioner’s case with instructions that Petitioner

In Carroll, we distilled the appropriate analysis for be allowed to conduct discovery and be granted an evidentiary

determining whether identified prosecutorial vouching rises hearing. In order to evaluate Petitioner’s claims fully, we

to the level of reversible error. As noted above, we first must review Armstead’s criminal status at the time of

determine whether the remarks at issue were flagrant. Here, Petitioner’s trial, as well as the testimony that Armstead

the prosecutor’s comments were certainly misleading to the provided at trial.

jury. The majority does not dispute that Armstead’s

credibility was indispensable to Byrd’s conviction. Armstead C. Armstead’s Status at the Time of Trial

was a jailhouse informant and convicted felon whose

credibility was questionable at best. The State’s (1) Possible Parole Revocation

representations that it believed Armstead are certainly likely

to mislead a citizen jury as to Armstead’s actual credibility. On December 4, 1980, Armstead began serving a 3-15 year

Additionally, the import of the remarks was exacerbated by prison sentence, which was imposed by the Hamilton County

the weakness of alternative evidence of Byrd’s guilt. Again, Court of Common Pleas following his convictions for

the majority does not dispute that this case turns on felonious assault and trafficking in drugs. On September 2,

Armstead’s credibility, which was certainly bolstered by overt 1982, Armstead was paroled, notwithstanding the opposition

prosecutorial vouching. Though the statements do not appear of the Hamilton County Prosecutor’s Office, which had

to be extensive, nor can we determine whether they were maintained that Armstead showed a disposition to commit

deliberately placed before the jury, their strategic potency is violent crimes. Approximately three months later, on

beyond dispute. Given the paucity of corroborating evidence December 17, 1982, Armstead was arrested and charged with

of Byrd’s guilt, and the fact that these statements were the robbery. The Ohio Adult Parole Authority (APA) was

kind that would mislead a jury, the prosecutorial vouching in

this case represents flagrant constitutional error.

C. that Armstead had provided the prosecutors with details about the murder

that were known only to the police and that had not been provided to the

In addition to engaging in gross vouching during his closing media. Moreover, the State provided letters from Randolph and Sargent,

written before any contact had been made by Armstead, in which they

argument, Byrd’s prosecutor also speculated as to facts not in volunteered to testify against Petitioner and in which they stated that

evidence. As the majority acknowledges, it is highly Petitioner had admitted to various inmates at the jail that he had killed

Monte.

16 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 97

notified of his arrest, and, by January 3, 1983, Armstead prosecutorial vouching stems from its tendency to place the

waived a probable cause hearing on the issue of whether he imprimatur and legitimacy of the government behind witness

was a parole violator given his recent arrest and was notified testimony. See United States v. Francis, 170 F.3d 546, 550

that he would receive a full parole revocation hearing at a (6th Cir. 1999). In this regard, the prohibition on government

later date. On February 2, 1983, Armstead was declared a vouching is consistent with the prosecutor’s role as

parole violator, and the APA placed a detainer on him which representative of a dispassionate sovereign, not a partisan

would result in his arrest as soon as he was released from jail interest. See Berger v. United States, 295 U.S. 78, 88 (1935).

on this most recent charge. On March 15, 1983, Armstead

pleaded guilty to a reduced charge of assault and attempted This Court applies a two-step analysis to determine whether

petty theft and received a sentence of 180 days in the prosecutorial vouching constitutes reversible constitutional

Cincinnati Workhouse. His presumptive release date was error. First, we assess whether the statements were improper,

September 15, 1983. and second, whether the impropriety was harmless. See

Carroll, 26 F.3d at 1384-87 (6th Cir. 1994). In determining

While serving his 180 day sentence at the Workhouse, whether improper conduct was harmless, we further inquire

Armstead met Petitioner and witnessed Petitioner’s into the flagrancy of the conduct. This flagrancy inquiry

confession to Monte’s stabbing. Armstead testified to this requires that we assess the following factors: whether the

effect at Petitioner’s trial. Petitioner was convicted on August remarks tended to mislead the jury; were isolated or

12, 1983, and sentenced to death on August 19, 1983. On extensive; were deliberately or accidently placed before the

August 29, 1983, Armstead was released from the Workhouse jury; and the strength of the evidence against the accused. See

and sent, pursuant to a parole violator warrant, to the id. at 1385, 1389; see also Olsen v. McFaul, 843 F.2d 918,

Columbus Correctional Facility for further proceedings. 929 (6th Cir. 1988) (applying flagrancy factors to determine

Armstead was scheduled for an informal parole review scope of prosecutorial misconduct in habeas case).

hearing on October 20, 1983.

In this case, there is no doubt that the prosecutor improperly

On the day Armstead was released to the custody of the vouched for Armstead’s credibility; the only issue is whether

APA, Daniel Breyer, the prosecutor in Petitioner’s trial, spoke the vouching was harmless. During closing arguments, the

to a supervisor with the APA and advised him of Armstead’s prosecutor stated:

cooperation. The following day, Breyer confirmed this in

writing. Breyer’s letter stated that Armstead testified without I’m not sure there is honor among thieves, but I believe

inducement by the State. The letter explained that, although Armstead when he took the stand, and I believe you did,

it would not recommend parole, the Hamilton County too . . . . I have heard no evidence direct or

Prosecutor’s Office nonetheless would not be opposed to a circumstantial to contradict what Armstead said. I

decision to continue Armstead on parole. Prior to the date of believe him and submit that you should believe him. . . .

his parole hearing, Armstead allegedly faced threats and Witnesses pay a price to testify. I never met Armstead

assaults from other inmates at the Columbus Correctional before, but you know there’s something real genuine

Facility, including Petitioner’s father John Byrd, Sr. As a about our people. . . .

result, Armstead was transferred to the Hamilton County Jail

on October 6, 1983. Then, on approximately October 20, J.A. at 3920. There is no more direct way to vouch for a

1983, the APA determined that Armstead would be returned witness’ credibility than to assert “I believe him.” In United

to parole. Armstead’s cooperation at Petitioner’s trial was States v. Bess, 593 F.2d 749 (6th Cir. 1979), we ordered a

new trial in the face of prosecutorial vouching that is

96 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 17

witnesses who corroborated Armstead’s testimony. In these cited as a mitigating circumstance behind the decision to

ways, Armstead’s parole evidence certainly satisfies the Kyles return Armstead to parole. On October 26, 1983, Armstead

definition of materiality as whether “the government’s was reinstated to parole and he moved to San Diego,

evidentiary suppression undermines confidence in the California. After approximately one year of supervision in

outcome of the trial.” Id. at 434 (internal quotations and San Diego, Armstead received his final release on November

citation omitted). See also United States v. Scheer, 168 F.3d 1, 1984.

445, 452-53 (11th Cir. 1999) (finding a Brady violation when

evidentiary suppression related to a key witness’ testimony); (2) Armstead’s Testimony

East v. Johnson, 123 F.3d 235, 239 (5th Cir. 1997) (holding

that “when the withheld evidence would seriously undermine At the outset, we note the extensive impeachment evidence

the testimony of a key witness on an essential issue or there elicited from Armstead by Petitioner’s defense counsel on

is no strong corroboration, the withheld evidence has been cross-examination. Armstead conceded, among other things,

found to be material”). the following facts on cross-examination: (1) That he had

been incarcerated in Block A of the Cincinnati Workhouse

The imperative that we have the utmost confidence in a jury (i.e., “the maximum security part” of the Workhouse) since

verdict is paramount when the punishment is death. We must approximately December 20, 1982; (2) that he also had been

not tolerate any reasonable doubt in discharging this duty. convicted within the previous ten years of a state or federal

Here, no one disputes that the State secured Byrd’s conviction offense carrying a sentence of more than one year in prison;

as a direct result of Armstead’s testimony. We know that the (3) that he previously had used the alias “Ronald Scott” after

jury was unaware that Armstead faced up to fifteen years he escaped from the Workhouse during a prior period of

imprisonment, depending on the reception he received at his incarceration and fled to Chicago; and (4) while in Chicago,

parole hearing. This reception would undoubtedly be warmer he got into some “trouble” (i.e. arrested for robbery), but he

if he found a way to ingratiate himself with the Hamilton had a “good work record up there and everything, so when

County prosecutor. None of these facts dictate that the jury [he] went to court the Judge gave [him] some probation.” Tr.

would have necessarily reached a different verdict, but they at 1552-56. We also point out that defense counsel elicited

certainly undermine confidence in its verdict. By failing to from Armstead testimony in addition to that permitted by the

correct material testimony that it should have known was Ohio Rules of Evidence. Ohio Evidence Rule 609 generally

false, the State committed reversible constitutional error. authorizes the admission of evidence of a conviction within

ten years prior to the date such evidence’s introduction is

B. sought if the crime is punishable by imprisonment in excess

of one year. Ohio Evid. R. 609(A)-(B). At Petitioner’s trial

The prosecution’s Brady violations were exacerbated by in 1983, Armstead admitted that he had an “escape charge”

numerous other instances of misconduct – notably improper from 1972. Moreover, although defense counsel was

prosecutorial vouching for Armstead’s credibility and the restricted at one point from pursuing the nature of Armstead’s

importing of facts not in evidence into closing argument. conviction within the preceding ten year period, counsel

This Court has unambiguously stated its disdain of successfully obtained the answer (i.e., a reference to robbery)

prosecutorial vouching for witness credibility. See United at a later point in his cross-examination.

States v. Carroll, 26 F.3d 1380, 1389 (6th Cir. 1994) (“We

cannot overstate the extent to which we disapprove of . . .

improper vouching by prosecutors.”). Our contempt for

18 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 95

At the conclusion of the cross-examination, the following time pending or nothing else pending.” J.A. at 3863. On

colloquy occurred between Petitioner’s counsel and redirect, the prosecution asked Armstead why he came to

Armstead: testify against Byrd. Armstead responded, “I don’t have no

more cases pending, and I come to testify against him because

Q: Do you have any charges pending now? he was wrong.” J.A. at 3864. The majority attempts to

explain the undeniable falsity of these statements by

MR. VOLLMAN [prosecution]: Objection, Judge. hypothesizing that Armstead must have thought that the

We have been over that. questions referred to “criminal” charges, as opposed to his

impending parole revocation hearings. See ante 47-48. First,

THE COURT: Overruled. Armstead was asked whether he had “any charges pending.”

“Any” means “any.” Armstead was not asked whether he had

A: No, I don’t sir. any “criminal” charges pending, or any other kind of charges.

Q: Did you have charges pending at the time that you He was simply asked whether he had “any” pending charges.

talked to the police and prosecutor? Moreover, Armstead responded that he had “nothing else

pending.” There is no qualification in this statement. By

A: No, I didn’t, sir. I got my time in March the 15 and testifying that he had “nothing else pending,” Armstead left

I don’t have no time pending or nothing else pending. the jury with the impression that he had no specific reason to

fabricate testimony, and that all of his jail time was behind

Tr. at 1569. On re-direct examination, the prosecution asked him. This was patently untrue, and either the prosecution

Armstead when he was subject for release. Armstead stated: knew or should have known.

“I got about two more weeks before my time is up.” Tr. at

1570. The prosecutor then concluded by asking Armstead Additionally, the majority concludes that Armstead’s

why he was testifying. Amstead stated: testimony on his pending charges is immaterial since any

parole records evidence would merely serve as cumulative

Because what he did is not what you would say is hip, impeachment evidence, and that Armstead had been

and he think it hip, and he brags about it, him and his substantially impeached by other evidence. While

buddies, and Woodall and they bragged about it from the Armstead’s overall credibility was certainly impugned by

day that they come in the Workhouse until the day they evidence that he was imprisoned at the Cincinnati Workhouse

left. And he don’t care about nothing . . . and he killed at the time of trial, and his admission that he had committed

that man [Monte] for no reason, ‘cause he had the a prior crime carrying at least a one-year prison term, none of

money, and they could have left, and I don’t have no this testimony furnished the kind of specific motivation to

more cases pending, and I come to testify against him fabricate testimony provided by his parole status. This

because he was wrong. evidence of a particular rationale to concoct testimony is not

merely cumulative with respect to Armstead’s general

Tr. at 1570. credibility. Neither the district court nor the majority dispute

that Armstead’s testimony was principally responsible for

On appeal, Petitioner argues that Armstead lied — and the Byrd’s conviction. Indeed, Armstead’s testimony provided

prosecution knew he was lying yet failed to respond the only meaningful distinction between Byrd and co-

accordingly — when Armstead testified that he did not have defendant John Brewer, who was not charged with

any charges pending at the time of Petitioner’s trial. Tewksbury’s murder. Moreover, the State did not present any

94 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 19

The majority attempts to remove itself from this Petitioner points out that Armstead was facing an upcoming

constitutional thicket by relying on our decision in United parole revocation hearing as a result of his guilty plea in

States v. Clark, 928 F.3d 733 (6th Cir. 1991), which provided March 1983 to charges of assault and attempted petty theft.

that “[n]o Brady violation exists where a defendant knew or In Petitioner’s view, his defense counsel’s question was not

should have known the essential facts permitting him to take limited simply to any criminal charges Armstead might have

advantage of any exculpatory information.” Id. at 738 been facing at the time, but necessarily encompassed

(internal quotations and citation omitted). Perhaps something like a parole revocation hearing as well.

recognizing the dubiousness of Clark’s applicability to this

case, the majority further maintains that Armstead’s In Petitioner’s state post-conviction proceedings, the

statements are neither false nor material for Brady purposes. common pleas court rejected Petitioner’s Brady claims and

denied his motion for a new trial. The court also set forth its

First, the majority attempts to excuse the prosecution’s factual findings with respect to the Brady claims. The district

failure to correct Armstead’s false and misleading testimony court presumed these findings to be correct. While these

by asserting – as per Clark – that Byrd’s trial counsel should findings are fatal to Petitioner’s Brady claims on habeas,

have known “that Armstead was on some form of parole Petitioner contends that we need not defer to these findings.

when he was arrested in December 1982” since he had access We now review the findings of the common pleas court, as

to Armstead’s arrest records. See ante at 46. While, perhaps, well as Petitioner’s arguments that these findings are not

one might expect an effective counsel to infer from entitled to deference.

Armstead’s arrest history that he was likely on some form of

parole at the time of his 1982 arrest, this omission is not so III. State Court Factual Findings

egregious as to excuse the prosecutor’s failure to correct

known false testimony. In Clark, we held that defense A. Introduction

counsel should have been aware of exculpatory evidence

when such evidence “was disclosed at [an] earlier detention On September 19, 1989, the common pleas court denied

hearing in the presence of defendant and with the opportunity Petitioner’s motion for a new trial, and in so doing, made

for inquiry by defense counsel.” 928 F.2d at 738. There was several findings of fact. On October 2, 1989, and again on

no such disclosure in this case. Brady most assuredly does April 1, 1991, the court denied Petitioner’s request for an

not allow a prosecutor to stand idly by while key witnesses evidentiary hearing and denied his petition for post-conviction

testify in materially false and misleading ways. Indeed, the relief. In conjunction with each denial, the court made a

Supreme Court recently asserted: “[T]he prosecution’s number of factual findings. The Hamilton County Court of

responsibility for disclosing known, favorable evidence rising Appeals ultimately affirmed the denials of both the motion for

to a material level of importance is inescapable.” Kyles, 514 a new trial and the petition for post-conviction relief.

U.S. at 438. Petitioner subsequently filed a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. On habeas review, the

Perhaps recognizing that the Clark exception to Brady is district court deferred to the state courts’ factual findings in

inapplicable to this case, the majority maintains that rejecting Petitioner’s claims. On appeal, Petitioner contends

Armstead’s testimony was neither false nor material. The that these findings were not entitled to the presumption of

notion that Armstead’s testimony was not false is simply correctness, because the state post-conviction proceedings did

implausible. Byrd’s counsel asked Armstead, “Do you have not afford Petitioner the opportunity to conduct discovery and

any charges pending?” Armstead replied, “I don’t have no develop the record. We disagree. After careful study of the

entire record, it appears that, prior to ruling on his claims, the

20 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 93

state courts afforded Petitioner a significant opportunity to in the outcome of the trial.” Id. at 434 (internal quotations

conduct the discovery necessary to support his demand for an and citation omitted). In this vein, “[if] there is no reasonable

evidentiary hearing. Thus, even assuming that the doubt about guilt whether or not the additional evidence is

information Petitioner now seeks actually exists, we must considered, there is no justification for a new trial . . . [but]

defer to the state courts’ factual findings, because Petitioner if the verdict is already of questionable validity, additional

had an adequate opportunity in the state courts to develop the evidence of relatively minor importance might be sufficient

record to the extent necessary to warrant an evidentiary to create a reasonable doubt.” United States v. Agurs, 427

hearing, but he failed to do so. See Keeney v. Tamaro-Reyes, U.S. 97, 112-13 (1976).

504 U.S. 1, 9 (1992).

In this case, the prosecution did not disclose star witness

B. Post-Conviction Proceedings in the State Courts Ronald Armstead’s parole records and pending charges. This

evidence would have revealed that, at the time of Byrd’s trial,

On April 19, 1988, the Ohio Supreme Court granted Armstead had a pending parole violation hearing where he

Petitioner six months to prepare and present his post- faced the probability of three to fifteen years of imprisonment.

conviction case. Petitioner proceeded to seek discovery on The evidence would have further revealed that the Hamilton

two different fronts: one in the common pleas court, and one County prosecutor’s office, who so vehemently extolled

in the Hamilton County Court of Appeals. On July 19, 1988, Armstead’s virtues throughout Byrd’s trial, was adamantly

Petitioner, through his post-conviction counsel Richard J. opposed to any potential premature release for Armstead.

Vickers, filed a Motion for Release of Records. On August Indeed, on multiple occasions prior to Armstead’s testimony

5, 1988, the common pleas court issued what can only be against Byrd, the prosecutor informed the Ohio Adult Parole

described as a discovery order (hereinafter referred to as “the Authority that it was strongly opposed to any early release for

August 5th order”).9 It states: Armstead. After Armstead’s testimony against Byrd,

however, the prosecutor – who was involved in pursuing both

It is therefore ORDERED that the Southern Ohio Armstead’s and Byrd’s charges – committed an about-face,

Correctional Facility, the Hamilton County Jail, the informing the parole board that Armstead would face physical

Hamilton County Juvenile Court and the Juvenile harm in prison, and that he “sincerely hope[d]” that he would

Detention Center, Adult Parole Authority, the Ohio not be placed in such an environment. With a proverbial

Department of Rehabilitation and Corrections, University wink-and-nod, the prosecutor indicated that he “would not be

Hospital of Cincinnati, Cincinnati General Hospital, opposed” to an early release for Armstead. J.A. at 1551-52.

Cincinnati Children’s Hospital and any other juvenile or

adult, public or private organization or person, release While the jury was wholly unaware that, barring a

upon request to Petitioner Byrd, his counsel or his agent fortuitous appearance at the parole hearing, Armstead was

any records in their possession which concern John W. returning to prison, it did hear Armstead attest to the

Byrd. following: “I don’t have no time pending or nothing else

pending. . . . I don’t have no more cases pending, and I come

In addition, any person or organization having any to testify against [Byrd] because he was wrong.” J.A. at 3864.

medical, psychological, psychiatric, hospital, police, At best, these statements were misleading and left the jury

with a material mis-impression of fact. At worse, these

statements were patently false, which the prosecution knew,

9

A copy of this order is contained in the Appendix at the end of the or should have known.

opinion.

92 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 21

constitutional guarantees of due process, fundamental school and employment records related to Mr. Byrd

fairness, and effective assistance of counsel. These errors should also release the records in their possession to Mr.

require an issuance of the writ or, at least, a remand for Byrd, his attorneys or his agents.

limited discovery. Anything less is a gross and irrevocable

miscarriage of justice, as the stark and chilly choice here is State v. Byrd, No. B-831662A (Hamilton County C.P., Aug.

between due process or death. Out of a deeply held belief that 5, 1988).10

the option compelled by the Constitution is clear, I now set

forth my dissenting views. On October 18, 1988, Petitioner filed his post-conviction

petition in state court and attached to it a number of affidavits

I. of prison inmates alleging that Armstead’s trial testimony had

been concocted and was untrue. Also attached to the petition

A. were, among other things, a letter purportedly written by

Armstead implying that he had testified pursuant to a deal

It is well settled that prosecutorial suppression of evidence with the prosecutor and a letter from the prosecutor to the

favorable to an accused “violates due process where the APA indicating that Armstead had not testified as part of any

evidence is material either to guilt or to punishment, deal but that, for a number of reasons, the prosecutor did not

irrespective of the good faith or bad faith of the prosecution.” object to the possibility of Armstead returning to parole rather

Brady v. Maryland, 373 U.S. 83, 87 (1963); see also Kyles v. than being sent back to prison for violating his parole.

Whitley, 514 U.S. 419, 433-34 (1995) . More specifically,

due process prohibits the government from introducing Although he already obtained the August 5th order,

testimony that it knew or should have known was false, see Petitioner’s post-conviction counsel prepared two broad

Kyles, 514 U.S. at 433, or failing to volunteer exculpatory pseudo-discovery motions, which he presented to the

evidence of which it was or should have been aware. See common pleas court on October 27, 1988 (hereinafter referred

United States v. Phibbs, 999 F.2d 1053, 1088 (6th Cir. 1993); to as “the October 27th motions”). The first motion requested

Vega v. Johnson, 149 F.3d 354, 363 (5th Cir. 1998); see also that the court order the Hamilton County Sheriff’s Office “to

Carriger v. Stewart, 132 F.3d 463, 480-81 (9th Cir. 1997) turn over and advise the Hamilton County Prosecutor’s Office

(finding due process violation when prosecution failed to of all information obtained during the course of their

disclose exculpatory evidence relating to witness’ history of investigation of Petitioner’s case.” JA at 1718. The second

untruthfulness and violent behavior). Moreover, government motion requested that the court order the Hamilton County

suppression of any evidence that is favorable to a defendant Prosecutor’s Office to make a “complete copy of the entire

is material, and such suppression constitutes constitutional Hamilton County Prosecutor’s File on Petitioner Byrd.” JA

error when “there is a reasonable probability that, had the at 1721. The request stated that the court should review this

evidence been disclosed to the defense, the result of the material and then seal a copy for use in further post-

proceeding would have been different.” Kyles, 514 U.S. at conviction proceedings.

433 (quoting United States v. Bagley, 473 U.S. 667, 682

(1985)).

To establish constitutional error, a defendant need not show

that “more likely than not [he would] have received a 10

In his habeas petition, Petitioner claims that he sought all available

different verdict.” Id at 434. It suffices to show that “the records through use of this motion; however, he relates the specifics only

government’s evidentiary suppression undermines confidence with regard to his attempts to obtain a copy of a victim impact statement.

22 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 91

The prosecutor opposed the second motion, and Petitioner __________________

stated later in his habeas petition that the common pleas court

failed to hear or grant these motions.11 Although Petitioner DISSENT

requested much more extensive discovery in the district court, __________________

these two motions appear to form the gravamen of

Petitioner’s protestations that the state post-conviction courts’ NATHANIEL R. JONES, Circuit Judge, dissenting. This

findings of fact are not entitled to deference. dissent is compelled by the majority’s validation of the

unpardonable constitutional improprieties present in this

On December 2, 1988, the common pleas court held a record. The effect of this validation is an intolerable

hearing concerning Petitioner’s request for copies of victim- abandonment of substantive and procedural principles deeply

impact statements, which Petitioner alleged were rooted in Anglo Saxon and American constitutional

impermissibly given to the jury (hereinafter referred to as “the jurisprudence. Stated in its most simple form, these

December 2nd hearing”). At that time, the prosecutor asked principles are designed to protect individual rights from

the court to revoke the August 5th order in its entirety and constitutional shortcuts. I dissent here because rather than

order that, in the future, if Petitioner wanted further upholding these principles, as courts are sworn to do, a

“discovery type material, he can file a motion with this Court grievous breakdown has occurred.

and this Court can consider each application on its own

merits.” JA at 3992. During Petitioner’s response, the The ultimate penalty – death – hovers ominously over this

following colloquy took place: case, and this reality leads me to set forth several postulates.

Democracy defends itself from anarchy by the degree it exalts

Court: Let’s try to cut through a lot of things that I process over passion. The supremacy of due process over raw

don’t think are really important. What do emotion is even more compelling when government

you want? Specifically, what do you want? contemplates assuming the power to kill. Jurists most often

find themselves in the cross-hairs of popular rage when

Vickers: Your Honor, there’s no case law or statutory confronted with constitutional infirmity in capital cases. In no

authority. other arena of civic decision-making is it more imperative that

public officials operate with detachment. Judge Cranch, with

Court: Just answer my question. Specifically what unsurpassed clarity, spoke to the necessity of judicial

do you want? impartiality in charged circumstances when he declared

during Aaron Burr’s 1807 treason trial: “The Constitution was

Vickers: We would like copies of the victim impact made for times of commotion. . . dangerous precedents occur

statement. in dangerous times. It then becomes the duty of the judiciary

calmly to poise the scales of justice, . . . undisturbed by the

11

clamor of the multitude.”

Petitioner supported his Brady claim with the same documents

used to support his other claims concerning Armstead and the Examining Petitioner John Byrd’s claims with the requisite

prosecutor’s alleged subornation of perjury. As discussed below, judicial sobriety exposes serious and egregious instances of

Petitioner’s documents were insufficient to trigger an in camera review

of the prosecutor’s files with respect to any of Petitioner’s claims, and it prejudicial error which, if uncorrected, will lead to his

appears that the post-conviction court never conducted such a review. execution. It is beyond refutation that the State secured

The court found, however, that the prosecutor did not suppress any Byrd’s death sentence in contravention of fundamental

evidence favorable to Petitioner.

90 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 23

APPENDIX Court: For what purpose?

Vickers: It’s our understanding that the victim impact

statement went to the jury.

Court: The victim impact statement did not go to the

jury. There was no PSI requested by the

defendant. That is part of the probation

report, is it not? You have a complete record

of what went to the jury. It’s not in there, is

it?

Vickers: No sir.

Court: I can assure you it didn’t go to the jury. I can

assure you the Court didn’t even have a copy

of it, if in fact there was one. Is that all

you’re requesting?

Vickers: Your Honor, if I may be heard?

Court: Is this all you’re requesting?

Vickers: At this time, we have another motion pending

for emergency room records which has not

been heard.

Court: I’m only going to hear what’s before me.

Vickers: Yes sir. Once again, if this Court will allow

me just to address Mr. Breyer’s comments.

Mr. Breyer asked this Court to revoke or limit

its order without citing any case law or

statutory authority for it to do so.

Court: I’m not going to revoke the entire order. I

think revocation of the order would cause

too much contact between Mr. Vickers and

his staff and your office, [sic] and this

particular Court with regard to discovery in

the future, as regards that which may be

24 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 89

necessary for their post-conviction relief. of our Constitution. We are confident that they do.

So I’m going to deny that portion of it. I am Accordingly, the judgment of the district court denying the

not going to allow the release of any of the petition for a writ of habeas corpus is AFFIRMED.

materials which the Probation Department

may or may not have, because, one, the jury

didn’t have that material and neither did the

Court, and I find that it has absolutely no

relevance with regard to the post-conviction

relief.

JA at 3393-96 (emphases added). In response to a question

by Vickers, the court reiterated that it was not revoking the

August 5th order.

The State then requested that post-conviction counsel

clarify Petitioner’s allegations concerning an alleged deal

between the prosecutor and Armstead. In response, counsel

stated that the petition was clear: Petitioner had attached the

August 30, 1983, letter from the prosecutor’s office to the

APA stating that the prosecutor would not be opposed to

continuing Armstead’s parole.12 The State responded with a

request that counsel explain in writing what the consideration

was that the prosecutor allegedly gave to Armstead. This

colloquy followed:

Vickers: Your Honor, I would be glad to respond to

Mr. Breyer, but we have sort of a Catch 22

situation here. We can only supply the

documents that we have. Until the Court

grants an evidentiary hearing we cannot

conduct the kind of discovery that we need to

12

The letter stated that, despite the absence of any promise,

Armstead’s testimony at Petitioner’s trial had greatly assisted the

prosecution and that, because of his testimony, Armstead’s safety was

now in danger.

88 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 25

contends that Ohio’s death penalty scheme: (1) Allows for conduct in13order to fully answer Mr. Breyer’s

the imposition of capital punishment in an arbitrary and question.[ ]

discriminatory manner; (2) fails to narrow the class of death-

eligible defendants adequately; (3) imposes an impermissible Court: You’ve made an allegation. There’s certainly

risk of death on capital defendants who choose to exercise some basis for the allegation, sir.

their right to a jury trial; (4) violates defendants’ rights to due

process and effective assistance of counsel by allowing Vickers: Sir, within the context of the petition, I

presentence investigation reports or mental evaluations believe the documents show that there was

requested by defendants to be provided to the jury; (5) fails to contact between Armstead and the

provide for an adequate proportionality review; (6) fails to prosecutor’s office. Also this cause of action

provide the sentencing authority with the option to choose a does not stand alone. There are other causes

life sentence even if the aggravating circumstances outweigh of action to indicate.

the mitigating factors; and (7) provides an execution process

that is cruel and unusual in that it offers defendants “the Court: Is it so difficult to put that in letter form and

macabre choice” of death by lethal injection or death by send it to Mr. Breyer?

electrocution. The district court rejected each of Petitioner’s

claims. We agree that the claims lack merit substantially for Vickers: I will do my best to respond, yes, sir.

the reasons given by the district court in its opinion of July JA at 3999. It is unclear to what extent, if any, counsel

28, 1995. followed through with the court’s directive to respond in

IX. Conclusion writing to the prosecutor’s office. Other than an apparent

request for the Sheriff’s investigatory records, which

In his brief, Petitioner states that “[t]his will in all Petitioner eventually received, we find nothing in the record

likelihood be the last court to review the merits of [his] claims to indicate that Petitioner ever requested to view non-work

for relief from his capital conviction and death sentence.” product prosecutorial materials, or, if he did make such a

Petitioner’s Br. at 1. Mindful of this likelihood and the request but was met with prosecutorial opposition, that

finality of the sentence imposed, we have reviewed Petitioner took any steps to have the court enforce the request.

Petitioner’s claims for relief with great care, as the length of

this opinion plainly indicates.

The people of the sovereign State of Ohio have concluded

that capital punishment is an appropriate sanction in certain 13

circumstances. Over sixteen years ago, an Ohio jury It appears that counsel had a preconceived notion that, since Ohio

Rev. Code § 2953.21 does not entitle a petitioner to discovery, he was

recommended, and the trial court agreed, that Petitioner’s somehow precluded from pursuing discovery under the August 5th order

crime warranted this ultimate sanction. Over the following that the court had issued in response to his motion. There is, however, an

decade, Ohio’s state courts repeatedly affirmed Petitioner’s important distinction between having no entitlement to discovery and

conviction and sentence. Our task on habeas review is not to being precluded from undertaking discovery; here, although counsel may

question the wisdom or propriety of capital punishment. not have been able to conduct depositions or serve interrogatories without

a further order from the court, he certainly could have obtained

Instead, our sole responsibility is to ensure that Petitioner’s documentary materials. Counsel made a similar “we-need-an-evidentiary-

conviction and death sentence comport with the requirements hearing-to-do-discovery” statement earlier at the December 2nd hearing

and in his memorandum in support of the second October 27th motion.

26 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 87

Just prior to participating in the above-described hearing, 777 (6th Cir. 1987). In any event, the claim is without merit.

on November 29, 1988, Petitioner requested from the On direct appeal, the Ohio Supreme Court noted that,

Hamilton County Sheriff’s Office records pertaining to the although it believed the argument to be improper, it was not

visitation at the Hamilton County Jail and the Workhouse of prejudicial to Petitioner when viewed in the context of the

inmates Armstead, Virgil Jordan, Marvin Randolph, Robert entire closing argument, which emphasized the evidence of

E. Jones, and Thomas Sargent. On December 23, 1988, aggravating circumstances present in the case. See State v.

pursuant to Ohio Rev. Code § 149.43, Petitioner filed with the Byrd, 512 N.E.2d 611, 616 (Ohio 1987). This circuit has

Hamilton County Court of Appeals a mandamus action noted that, “[u]nless calculated to incite the passions and

seeking to enforce his public records request. State v. Leis, prejudices of the jurors, appeals to the jury to act as the

No. C-880792 (Ohio Ct. App. 1 Dist., June 16, 1989). community conscience are not per se impermissible.” United

Sometime after Petitioner filed the mandamus action, the States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991).

court of appeals stayed the post-conviction proceedings in the Solivan involved comments by the prosecutor that the jury

trial court. should convict the defendant of drug charges in order to send

a message to drug dealers that they were not welcome in the

On January 17, 1989, counsel for the Sheriff’s Department community. That case was in the context of a direct appeal

wrote Petitioner’s counsel and informed him that he could where the court, under its supervisory powers, held that the

have access to visitation records by contacting Milt Casias at argument constituted reversible error. Petitioner’s case is

the Hamilton County Sheriff’s Office. Petitioner’s counsel distinguishable not only because we must examine his claims

did not examine these records until April 4, 1989. At that under the more stringent standards applicable on habeas

time, counsel was permitted to review, and was given copies review, but also because the argument complained of does not

of, visitation cards for each inmate whose records he ask the jury to send a message to other potential murderers or

requested. The search for these records had been conducted robbers. The prosecutor quoted from the Supreme Court’s

in late 1988 when Petitioner first made his request, and the explanation of the purpose of capital punishment as a way of

Department of Corrections provided Petitioner with all of the arguing that the jury should find that these purposes would be

requested visitation records that it could locate. However, not served by imposing the death penalty on Petitioner. It is not

all of the records were found. In particular, the Department clear that this comment was even improper, and it certainly

was unable to locate the general attorney log book for the does not render Petitioner’s entire trial fundamentally unfair.

requested period, but Milt Casias averred that, to the best of The prosecutor urged the jury to weigh all the aggravating

his knowledge, the log book had not been destroyed.14 circumstances against the mitigating factors in making its

Petitioner’s counsel requested, and Casias agreed to conduct, sentencing determination. In short, the prosecutor’s

comments did not deny Petitioner his right to a fair trial.

14 For the foregoing reasons, we reject each of Petitioner’s

When Casias spoke with Petitioner’s counsel on April 4, 1989, he

informed counsel that the Sheriff’s Department regularly destroyed claims of prosecutorial misconduct.

records that were more than five years old. In Petitioner’s case, the

records sought were from spring and summer of 1983; Petitioner made VIII. Miscellaneous Claims

this request on November 29, 1988, shortly past the five-year mark.

Moreover, as the State noted, it is surprising that any visitation records Finally, Petitioner raises a series of miscellaneous

were found: visitation records are supposed to be maintained on a three-

year retention cycle, and individual inmate visitation cards are normally challenges to Ohio’s capital punishment scheme both on its

kept for only one year. Despite the foregoing, Petitioner’s counsel was face and as applied to his case. In particular, Petitioner

able to obtain visitation cards for each inmate requested.

86 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 27

intelligence, interest and bias, if any; together with all the a further search for the records in question. On April 7, 1989,

facts and circumstances surrounding the testimony. Casias’s office informed counsel that a large number of

Applying these tests, you will assign to the testimony of records had, in fact, been destroyed on March 8, 1989. The

each witness such weight as you deem proper. Sheriff’s Office provided counsel with a list of destroyed

items; this list did not include any visitation records or the

You are not required to believe the testimony of any attorney log book. The prosecutor’s office informed counsel

witness merely because that witness was under oath. that they would continue to look for the log book.

You may believe or disbelieve all or any part of the

testimony of any witness. It is in your province to Counsel apparently also asked the prosecutor to provide

determine what testimony is worthy of belief and what access to the sheriff’s investigatory files, a request

testimony is not worthy of belief. substantially similar to the first of Petitioner’s two October

27, 1988, motions. On May 10, 1989, the prosecutor’s office

Tr. at 1692-94. The remarks in question were extremely informed counsel that, in order to expedite Petitioner’s

isolated and constituted only two brief comments in the midst mandamus action, the prosecutor’s office had “decided to

of over thirty pages of transcript from closing argument. The make available to [Petitioner] all the records [Petitioner had]

comments were deliberate in the sense of attempting to requested.”15 JA at 564. The prosecutor provided counsel

emphasize the credibility of Armstead, but they clearly were with a contact at the Hamilton County’s Sheriff’s Office from

not deliberate in the sense of attempting to mislead or confuse whom counsel could obtain the requested information. In

the jury. Indeed, the prosecutor explicitly told the jury that addition, through the discovery process, in January 1989,

his closing argument was not evidence. Following our counsel obtained Petitioner’s Juvenile Court records.

examination of all the factors, especially the fact that the

comments did not have any substantial likelihood of Sometime after April 7, 1989, Petitioner moved the

confusing the jury, we conclude that the two brief comments Hamilton County Court of Appeals to hold an evidentiary

at issue did not render Petitioner’s conviction constitutionally hearing regarding the lost visitation records. The Sheriff’s

infirm under the stringent standard applicable on habeas Department moved to dismiss the action and opposed the

review. See Brecht v. Abramson, 507 U.S. 619, 623 (1993) evidentiary hearing, providing affidavits and other documents

(harmlessness standard used by federal habeas courts is showing that it had complied with Petitioner’s mandamus

whether the error had a "substantial and injurious effect or request. On June 16, 1989, the Hamilton County Court of

influence in determining the jury's verdict.") (quoting Appeals dismissed the mandamus action, stating that

Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Petitioner “has failed to show, pursuant to Civil R. 26(B), the

relevancy of the destroyed or lost records as to the

E. Appeal to Societal Duty Postconviction Relief Petition.” JA at 3283. The court also

overruled the motion for an evidentiary hearing, and dissolved

Petitioner’s final claim is that the prosecutor argued to the the stay and protective orders previously entered.

jurors during closing arguments at the sentencing phase that

they should impose the death penalty on Petitioner in order to

fulfill their societal duty. In making this argument, the

prosecutor quoted from Gregg v. Georgia, 428 U.S. 153

(1976). At the outset, we note that Petitioner did not raise this 15

According to the State’s April 15, 1994, opposition to Petitioner’s

claim in the petition for habeas corpus, and, thus we need not motion for discovery in the district court, this request covered the entire

consider it on appeal. See Chandler v. Jones, 813 F.2d 773, file of the sheriff’s investigation into Monte’s murder.

28 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 85

We find nothing in the record to indicate that Petitioner’s reexamine Armstead’s testimony was to reevaluate

counsel otherwise utilized the August 5th order or Ohio Rev. Armstead’s credibility. Everyone involved with the case

Code § 149.43 to pursue further discovery. Counsel claims presumably knew that, if Armstead’s testimony was believed,

that, on an undisclosed date, he met with an employee of the then Petitioner was the principal offender and guilty of the

Ohio Auditor of State to discuss a “Furtherance of Justice cold-blooded murder of Monte Tewksbury.

Account” and was informed that the Hamilton County

Auditor’s Office would have audit oversight responsibility for In our view, the prosecutor’s statements did not “so infect[]

the prosecutor’s disbursements from such an account. There the trial with unfairness as to make the resulting conviction a

is no indication whatsoever that, after receiving such denial of due process.” Darden, 477 U.S. at 181 (internal

information, counsel either attempted to obtain these records marks and citation omitted). We are confident that the

from Hamilton County or pursue a public records action. prosecutor’s statements did not confuse or improperly

influence the jury, especially given its decision to have the

C. State Court Findings testimony reread. In addition, the trial judge instructed the

jury as to the factors to consider in evaluating the weight to

In reviewing the motion for a new trial, the common pleas give the testimony of a witness. These factors emphasized

court considered the affidavits and other evidence attached to that it was within the jury’s sole discretion how much weight

the post-conviction petition. The court denied the motion, to give testimony, and the prosecutor’s opinion as to the

finding: truthfulness of a witness was not one of these factors to

consider. The judge instructed the jury as follows:

(1) The affidavits and statements of Elwood Jones, and

the affidavits of Marvin Randolph, Robert Jones, and In determining the weight to be given to such a

Thomas Sargent are merely impeaching in nature. witness’s testimony, you may take into consideration that

witness’s skill, experience, knowledge, veracity,

(2) Elwood Jones, Marvin Randolph, Robert Jones, and familiarity with the facts of the case, and the usual rules

Thomas Sargent are all convicted felons, whose for testing credibility.

credibility is thereby diminished. The affidavits of

Randolph and Sargent are contradicted by their own As to all the evidence, you, ladies and gentlemen, are

letters to the prosecutor.[16] the sole judges of the facts, the credibility of the

witnesses, and the weight to be given to the evidence.

To weigh the evidence, you must consider the

credibility of the witnesses who have testified. You will

apply the tests of truthfulness which you apply in your

daily lives.

16 These tests include the appearance of each witness

Thomas Sargent and Marvin Randolph each contacted the

prosecutor’s office via handwritten letters and affirmatively asserted that upon the stand; the manner of testifying; the

they frequently talked with Petitioner and his co-defendants and that they reasonableness of the testimony; inconsistencies, if any,

had information regarding Monte’s murder. “Recanting affidavits and in the testimony; the opportunity the witness had to see,

witnesses are viewed with extreme suspicion by the courts.” Spence v.

Johnson, 80 F.3d 989, 997 (5th Cir. 1996) (quoting May v. Collins, 955 hear and know the things concerning which that witness

F.2d 299, 314 (5th Cir. 1992)). testified; accuracy of memory; frankness or lack of it;

84 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 29

relief on the basis of improper vouching.43 The few cases in (3) The note purportedly signed by Ronald Armstead,

which vouching provided a basis for relief were in the context attached to the affidavits of17Elwood Jones, was not

of a direct appeal where we exercise supervisory power over written by Ronald Armstead.[ ]

the federal trial court proceeding. Even on direct appeal,

however, reversal is not automatic. Compare United States v. (4) There is no credible evidence before the Court that

Carroll, 26 F.3d 1380, 1390 (6th Cir. 1994) (finding Ronald Armstead lied in his trial testimony.

reversible error), with Collins, 78 F.3d at 1039-40 (holding

that improper vouching was harmless under the (5) Ronald Armstead was not given any consideration by

circumstances). the State for his testimony against John Byrd, Jr.[18]

In Petitioner’s case, we conclude that the demanding (6) The credibility of Ronald Armstead was the subject

standard for habeas relief has not been met. Our review of the of extensive cross-examination at trial.

“totality of the circumstances” convinces us of this. Angel,

682 F.2d at 608. First, the above remarks did not mislead the JA at 4201-02. The court gave res judicata effect to these

jury at all. In fact, the prosecutor told the jury during his findings of fact when Petitioner raised identical claims in his

closing argument that his argument was not evidence. He post-conviction petition. It found that all issues of fact could

stated, “I ask you to bear in mind what I say is not evidence.” be resolved without an evidentiary hearing and granted

Tr. at 1643. In addition, the trial judge instructed the jury summary judgment to the State.

immediately after closing arguments that the arguments of the

attorneys were not evidence. Tr. at 1688. This Court has

noted that where the court instructs the jury in this fashion, 17

“[s]uch instructions have sometimes been deemed to cure The State presented a report by a handwriting expert that

improprieties in closing argument.” Carroll, 26 F.3d at 1389 concluded: “I have found no basis for believing that the ‘Ronald

n.12. Moreover, following an initial period of deliberation, Armstead’ signature on the [letter implying that Armstead cut a deal in

exchange for his testimony] was written by Ronald Armstead. I am

the testimony of Armstead was reread at the jury’s request. confident examination of the original would result in a definite

After hearing Armstead’s testimony again, the jury returned determination that it was not written by him.” JA at 3165. While not

a verdict of guilty approximately one hour later. Armstead’s definitively so concluding, the report also indicated that the letter in

testimony was far from complicated. The crux of his question may have been written by Elwood Jones.

testimony was that Petitioner told him that Petitioner had 18

stabbed Monte. The jury could not have wanted to reexamine Other than the letter that the common pleas court determined was

Armstead’s testimony for the purpose of remembering what forged, all correspondence from Armstead to the prosecutor’s office was

he said. Rather, the likely purpose behind the jury’s desire to written after Petitioner’s conviction and stated only that Armstead felt that

his life was now in danger and was requesting the prosecutor’s help. All

correspondence from the prosecutor’s office to the APA was also written

subsequent to Petitioner’s conviction. This correspondence advised,

43 among other things, that Armstead had provided assistance, Armstead’s

See, e.g., Toney v. Anderson, No. 96-4284, 1998 WL 68919 (6th life appeared to be in danger because of this assistance, and the

Cir. Feb. 13, 1998); Martin v. Rivers, No. 95-2210, 1997 WL 49067 (6th prosecutor’s office would not oppose continuing Armstead’s parole.

Cir. Feb. 3, 1997), cert. denied, 520 U.S. 1233 (1997); Boyle v. Brigano, Prosecutor Breyer also averred that Armstead was not given a deal in

No. 93-3823, 1994 WL 242392 (6th Cir. June 2, 1994); Cantrell v. Gray, exchange for his testimony and that Armstead served his local time in full

No. 84-3686, 1986 WL 16540 (6th Cir. Feb. 7, 1986); Mitchell v. Ravitz, before being transferred to the State as a parole violator. The inmate

No. 85-1029, 1985 WL 13742 (6th Cir. Sept. 30, 1985) (all cases denying affidavits are the only submissions tending to support Petitioner’s

habeas relief despite the petitioner’s claim of improper vouching). contention that Armstead made a deal in exchange for his testimony.

30 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 83

In addition, in its order denying the post-conviction petition Armstead’s testimony. Specifically, Petitioner complains of

to vacate Petitioner’s sentence, the common pleas court the following two statements:

found, among other things, that:

[Armstead] looked Byrd right in the face. He looked me

(1) Marvin Randolph and Thomas Sargent initiated in the face. He looked you in the face, Armstead did, he

contact with the prosecutor’s office to testify against looked the defense attorneys in the face and he said,

Petitioner, but were not called by the State. “What that man did was wrong. He killed that man for

no reason.” I’m not sure there is honor among thieves,

(2) Petitioner has submitted no credible evidence but I believe Armstead when he took that stand, and I

suggesting that Ronald Armstead lied, or that would believe you did, too.

result in the probability of a different outcome at a

second trial. Tr. at 1658-59.

(3) Ronald Armstead did19not have any charges pending Armstead said that he was told by Byrd that Byrd stabbed

at the time of this trial,[ ] and received no bargain or Monte Tewksbury. I haven’t heard any evidence to

deal from the State in return for his testimony. contradict that. I have seen a lot of circumstantial

evidence to support that. I have heard no evidence direct

(4) There are no fundamental discrepancies between the or circumstantial to contradict what Armstead said. I

testimony of Ronald Armstead at this trial and his believe him, and I submit that you should believe him.

testimony at the trial of the co-defendants.

Tr. at 1662. Petitioner contends that these comments

(5) No evidence favorable to the defendant was deprived him of his right to a fair trial and an impartial jury

suppressed by the State. determination of his guilt. We have stated that “‘it is

improper for a prosecuting attorney in a criminal case to state

JA at 1874, 1878, 1896. his personal opinion concerning the credibility of witnesses or

the guilt of a defendant.’” United States v. Krebs, 788 F.2d

The Hamilton County Court of Appeals affirmed the lower 1166, 1176 (6th Cir. 1986) (quoting United States v. Daniels,

court. Ohio v. Byrd, No. C-910340, 1992 WL 37761 (Ohio 528 F.2d 705, 709 (6th Cir. 1976)).

Ct. App. 1 Dist., Feb. 26, 1992). The court of appeals noted

that “[u]nder O.R.C. § 2953.21(C), the trial court has a However, we lack supervisory power over state courts, and

statutory duty before granting [an evidentiary] hearing to our inquiry on habeas review is limited to determining only

determine from the petition, the supporting affidavits, and the whether the improper comments constitute a due process

violation. See Cook v. Bordenkircher, 602 F.2d at 119 n.5.

As we noted earlier, in a due process analysis, we consider

19

Although the common pleas court did not explicitly state that “the fairness of the trial, not the culpability of the prosecutor.”

“Armstead did not lie about his charges” when discussing this claim, this Pritchett, 117 F.3d at 964 (quotation marks and citation

is the clear import of its findings. The court explicitly found that omitted). We have not discovered, nor have the parties

Armstead had no criminal charges pending at the time of trial and that he directed us, to any cases in which we have granted habeas

served his six month sentence and was transferred to the State as a parole

violator. The court concluded that Petitioner was not entitled to relief

because “the factual premise underlying his claim is false.” JA at 1878-

79.

82 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 31

remarks were relatively isolated, and other evidence of record whether there are substantive grounds for relief.” Id.

Petitioner’s guilt is strong, especially his confession to at *2. In particular, it found that the lower court properly

Armstead. Although the comments were deliberately placed refused to hold an evidentiary hearing on Petitioner’s first

before the jury, the prosecutor was merely speculating about cause of action (substantive lying) because “the record is

possible inferences from the evidence. Finally, defense devoid of any evidence that the prosecution had any

counsel did not object to these comments or ask for a curative knowledge that Armstead’s testimony was fallacious. Instead,

instruction. In sum, we hold that these comments were not Petitioner offered evidence that served only to challenge the

“so egregious so as to render the entire trial fundamentally credibility of Armstead as a witness for the state.” Id.

unfair.” Pritchett, 117 F.3d at 964. Similarly, the court held that, with respect to the question of

a deal, there was no issue of fact that required a hearing. The

Petitioner also complains that the prosecutor directed court reasoned that (1) even assuming the “forged letter” was

personal insults at him and suggested that the defense counsel authentic, it was inherently contradictory because it stated that

was hiding something from the jury. The prosecutor referred Armstead testified “only” because of a deal, and then later

to Petitioner as a “predator” three times during closing stated that he testified “only” because he wanted the truth to

arguments and suggested to the jury that the defense counsel come out; (2) that the letter written by Prosecutor Breyer did

was trying to hide something from it about the source of not recommend any particular action and clearly stated that

blood found on a sweater alleged to have been worn by Armstead’s cooperation was attained without promise or

Woodall. Although “gratuitous insults” of the defendant by inducement; (3) Elwood Johnson’s affidavit did not claim any

a prosecutor are not to be encouraged, the prosecutor’s use of firsthand knowledge of a deal; and (4) the record contained no

the term “predator” to describe Petitioner did not deprive him other evidence of a deal. Thus, an evidentiary hearing was

of a fair trial. See Olsen v. McFaul, 843 F.2d 918, 930 (6th not required, because Petitioner failed to present sufficient

Cir. 1988) (denying habeas relief and holding that the evidence to create an issue of fact that, if resolved in

petitioner defendant had not been deprived of a fair trial Petitioner’s favor, would provide substantive grounds for

where the prosecutor referred to the petitioner as a relief.

“deadbeat,” “thief,” “creep,” and “liar”, the remarks were

deliberate and not isolated, no curative instruction was given, D. District Court Habeas Proceedings

and the evidence of guilt was not overwhelming). In addition,

while it is “unprofessional . . . to make personal attacks on The district court deferred to the state courts’ factual

opposing counsel,” Collins, 78 F.3d at 1040, the statement findings,20 but not until after it considered Petitioner’s several

about defense counsel in this case was clearly a suggestion of

a reasonable inference to be drawn from defense counsel’s

presentation of evidence and argument. “Where there is 20

The district court presumed that the state courts’ findings were

conflicting testimony, it may be reasonable to infer, and correct with respect to the “absence of any advance arrangement between

accordingly to argue, that one of the two sides is lying.” Id. Armstead and the prosecutor for leniency, and the absence of any

(citing United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. evidence that the prosecution was aware that Armstead’s testimony about

1991)). Byrd’s confession was false.” Byrd v. Collins, No. C-1-94-167, at 21

(S.D. Ohio Dec. 26, 1995). It is unclear whether, in dismissing

Petitioner’s “pending charges” claim, the district court relied on the state

Finally, Petitioner argues that during closing arguments the courts’ various findings that Armstead did not have any criminal charges

prosecutor improperly vouched for the truthfulness of pending and did not perjure himself, or whether it relied on its own

factual findings with respect to that issue. Nonetheless, the court

apparently concluded that Armstead’s testimony was not false or

32 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 81

discovery requests and ordered further discovery in two pants, you have seen them all that they were all blue. I

areas.21 speculate that that tan he wore, he had tan pants. I will

tell you this, Nitz wasn’t concerned with what color pants

Among other things, Petitioner’s document requests he had on, and he is trying to help the police. He made

included: (1) “All documents . . . received or prepared by a mistake. He’s a kid, lucky to be alive today, given that

the Hamilton County Prosecutor’s Office or the Hamilton one fault, that faulty recall.

County Sheriff’s Department authorizing, requesting[,]

directing or identifying Ronald Armstead, Virgil Jordan, Tr. at 1655.

Marvin Randolph, Robert Jones, Leroy Tunstall, to be

questioned and/or investigated in connection with the murder [W]e are missing two sleeves there (demonstrating). We

of Monte Tewksbury, regardless of whether such individuals have this T-shirt altered, missing one sleeve, one of them

testified at trial”; (2) all documents containing statements by dirtier than the other, and we recovered two sleeves from

Sharon Tewksbury concerning the murder of Monte that truck, one a little cleaner than the other, and I submit

Tewksbury; (3) all Prosecutor’s Office and Hamilton County to you we are missing a sleeve, and I will tell you where

Auditor’s Office documents concerning payments from a that sleeve is. It is out in Hamilton County in the

“Furtherance of Justice Account,” allegedly maintained by the northwest side with blood all over it. Now, where out

Prosecutor’s Office, to Virgil Jordan, Ronald Armstead, or there? I don’t know. Maybe the same place Monte

any other person designated by the prosecutor as having Tewksbury’s ring is. Maybe the same place the top of

provided assistance in the investigation of Monte’s murder or that cash register is. But that is the explanation as to

Petitioner’s capital trial; (4) all Sheriff’s Department, what happened to that other sleeve.

Cincinnati Police Department, and Prosecutor’s Office

documents relating to Armstead’s arrest in December 1982, Tr. at 1660-61. In our view, these statements constitute

and his subsequent prosecution; (5) all APA, Probation arguably reasonable inferences from the evidence presented

Department, and Prosecutor’s Office records pertaining to at trial. The prosecutor did not present these statements as

Armstead’s pending parole revocation; and (6) all Sheriff’s factual assertions but, rather, as beliefs inferred from the

Department and Prosecutor’s Office records relating to the evidence presented. For example, in stating that Petitioner

use of Armstead or Jordan as jailhouse informants. possibly had been in the store previously and recognized

Monte, the prosecutor emphasized that the jury could assume

Petitioner’s deposition requests included, among others: (1) that Petitioner had seen Monte before, because the store was

Prosecutors Breyer and Vollman, “regarding the investigation, near Petitioner’s boyhood home.

including the review of files and internal documents

However, even if the statements in question are considered

impermissible comments on facts not in evidence, we

conclude that they do not meet the stringent standard for

misleading such that the prosecutor would be required to correct it; obtaining habeas relief set out above. We find that the

instead it faulted defense counsel for failing to ask obvious questions remarks did not mislead the jury, because the prosecutor

concerning Armstead’s supervised release status. qualified the remarks with statements such as “you would

21 have to assume,” “I speculate,” and “where out there? I don’t

After an April 11, 1994, hearing and subsequent briefing, the know.” The jurors would know that these comments were

district court denied without prejudice Petitioner’s original discovery

motion, because it was made before filing of either Respondent’s return inferences, and they would not be confused into believing that

of writ or Petitioner’s traverse. these comments were factual evidence. Moreover, the

80 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 33

assertions by Petitioner that the prosecutor commented on maintained by the prosecutor’s office pertaining to Ronald

matters not in evidence, directed personal insults at Petitioner, Armstead, as well as interviews of Ronald Armstead, Virgil

suggested to the jury that defense counsel was attempting to Jordan, Marvin Randolph and Robert Jones by investigators”

mislead the jury, and vouched for the truthfulness of from the Sheriff’s Department and Prosecutor’s Office, and

Armstead as a witness. We address each one in turn. “interviews and preparation of Ronald Armstead by Daniel J.

Breyer, Carl Vollman and all other Assistant Hamilton

It is improper for a prosecutor, during closing arguments, County Prosecuting Attorney’s that led to” Armstead’s

to bring to the attention of the jury any “purported facts that testimony; (2) Nancy Rankin and Andrew Hitz, regarding the

are not in evidence and are prejudicial.” United States v. victim impact statements; and (3) Anderson Resnick,22

Wiedyk, 71 F.3d 602, 610 (6th Cir. 1995) (citing United States regarding the name of the prosecutor who prosecuted

v. Leon, 534 F.2d 667, 679 (6th Cir. 1976)). However, Armstead in relation to his December 1982 arrest.

prosecutors “must be given leeway to argue reasonable

inferences from the evidence.” United States v. Collins, 78 On October 12, 1995, the district court ordered the State to

F.3d 1021, 1040 (6th Cir. 1996). The statements of the supplement the record with all records from the APA that

prosecutor which Petitioner challenges involve speculation were related to the revocation of Armstead’s parole in 1983

regarding the clothing that Petitioner was wearing on the and the release of Armstead either from parole or from the

night of the murder, the possible disposal of evidence that the sentence which he began to serve upon parole revocation.

State never obtained, and the possibility that Petitioner The State complied with this request by providing its entire

recognized Monte because Petitioner had been in the store file on Armstead, which consisted of 147 indexed exhibits

prior to the night of the murder. comprising 225 pages. The district court also ordered the

State to produce a copy of the victim impact statement. Each

In particular, the prosecutor made the following statements: party was then to submit briefs addressing (1) whether,

assuming that the victim impact statement went to the jury,

Ironically, possibly, but more probably intentionally, this such submission was harmless error; and (2) whether an

King Kwik and that intersection were about a block inference could be drawn from the parole records that

away, as Officer Baker said, Detective Baker said, a Armstead testified falsely concerning his future incarceration,

block away from Byrd’s boyhood home, a home where I and, if so, whether an inference could be drawn that the

believe you would have to assume, and you can have that prosecutor was aware of such false testimony. The court

map, but I think you would have to assume, giving all the deferred its decision on the materials requested in the balance

close nature and location of that subdivision, a home of the discovery motion. The State provided a copy of the

where Byrd, I’m sure, on numerous occasions was face statement, and on November 28, 1995, Petitioner deposed

to face with Monte Tewksbury, saw him and recognized Nancy Rankin and Andrew Hitz.

him.

After reviewing these records, the district court addressed

Tr. at 1649. in its third opinion the facts relevant to the parole issue. We

have already recounted these. See supra at pp. 15-16. The

Now, also you heard Nitz’ testimony, 18 or 19 year old

kid, primarily; I think he was that old. I’m not even that

sure. He didn’t look that old. He was playing a video 22

Anderson Resnik was a paralegal employed by the Ohio Public

game before midnight. You heard him say that the guy Defender’s Commission who attempted to find out the name of

with the knife had tan pants. To be in that group, had tan Armstead’s prosecutor.

34 Byrd v. Collins No. 96-3209 No. 96-3209 Byrd v. Collins 79

district court found that the presumption of correctness to Petitioner’s failure to testify.42 While this determination is

applied to the state courts’ factual findings. The court first dispositive, we also note that these comments were relatively

noted that the common pleas court was a court of competent isolated, were few in number, and were not objected to by

jurisdiction, Petitioner and the State were parties to the post- defense counsel.

conviction proceedings, and written, factual findings were

made. See 28 U.S.C. § 2254(d). Citing Sumner v. Mata, 449 During the penalty phase, Petitioner did not remain

U.S. 539, 597 (1981), and Nichols v. Perini, 818 F.2d 554, completely silent. Instead, he made an unsworn statement to

557 n.3 (6th Cir. 1987), the court flatly rejected Petitioner’s the jury in which he expressed remorse for the incident but

contention that, unless the state court held an evidentiary did not directly admit that he was the one who actually

hearing, there had been no “hearing” for purposes of stabbed Monte. We agree with the district court that the

determining whether the state courts’ factual findings are prosecutor’s penalty phase comment to which Petitioner now

entitled to deference under 28 U.S.C. § 2254(d). The court objects was a fair response to Petitioner’s unsworn statement.

further concluded that none23of the eight exceptions listed in The prosecutor was not commenting on Petitioner’s failure to

§ 2254(d) were applicable. Using the state courts’ factual present sworn testimony. Instead, the prosecutor merely

findings, the district court held that the prosecutor did not suggested to the jury that Petitioner’s expression of remorse

was “shallow,” because Petitioner did not accept more

complete responsibility for his actions and for Monte’s death.

23

Case law permits comments that are made in response “to the

The district court must defer to the factual findings of the state argument and strategy of defense counsel.” Butler, 686 F.2d

courts unless one of the following exceptions applies: at 1172; see also Lockett v. Ohio, 438 U.S. 586, 595 (1978)

(1) the merits of the factual dispute were not resolved in the

(holding that the prosecutor’s closing remarks that the

State court hearing; evidence was “unrefuted” and “uncontradicted” added

(2) the factfinding procedure employed by the State court was nothing to the impression that had already been created by the

not adequate to afford a full and fair hearing; defendant’s refusal to testify after the jury had been promised

(3) the material facts were not adequately developed at the State a defense by her counsel and told that the defendant would

court hearing; take the stand). In short, we find no constitutional violation.

(4) the State court lacked jurisdiction of the subject matter or

over the person of the applicant in the State court proceeding;

(5) the applicant was an indigent and the State court, in D. Various Claims of Improper Prosecutorial

deprivation of his constitutional right, failed to appoint counsel Argument

to represent him in the State court proceeding;

(6) the applicant did not receive a full, fair, and adequate hearing Petitioner also challenges various allegedly improper

in the State court proceeding; or arguments, which he contends deprived him of a fair trial.

(7) the applicant was otherwise denied due process of law in the Some of these claims, such as comments on Petitioner’s

State court proceeding;

(8) or unless that part of the record of the State court proceeding failure to testify and victim impact have been addressed

in which the determination of such factual issue was made, above. The remaining instances complained of include

pertinent to a determination of the sufficiency of the evidence to

support such factual determination, is produced as provided for

hereinafter, and the Federal court on a consideration of such part 42

of the record as a whole concludes that such factual

This text is long and has been trimmed here. Open the source document for the complete record.