Awkal v. Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0098p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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ABDUL AWKAL,

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Petitioner-Appellant,

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No. 01-4278

v.

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Respondent-Appellee. -

BETTY MITCHELL,

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Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

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

Argued: October 22, 2008

Decided and Filed: March 16, 2009

Before: MOORE, COLE, and GILMAN, Circuit Judges.

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COUNSEL

ARGUED: R. Brian Moriarty, Cleveland, Ohio, for Appellant. Laurence R. Snyder,

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

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

Jr., LAW OFFICE, Cleveland, Ohio, for Appellant. Jonathan R. Fulkerson, OFFICE OF

THE OHIO ATTORNEY GENERAL, Columbus, Ohio, Michael L. Collyer, ASSISTANT

UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.

MOORE, J., delivered the opinion of the court, in which COLE, J., joined.

GILMAN, J. (pp. 20-30), delivered a separate dissenting opinion.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. In 1992, an Ohio jury convicted

Petitioner-Appellant, Abdul Awkal (“Awkal”), of two counts of aggravated murder with

prior calculation and design with mass-murder and firearm specifications. The trial court

1

No. 01-4278 Awkal v. Mitchell Page 2

sentenced Awkal to death as recommended by the jury. Awkal now appeals the district

court’s decision to deny his petition for a writ of habeas corpus. We granted a certificate of

appealability allowing Awkal to raise claims of ineffective assistance of counsel at the guilt

and penalty phases and of prosecutorial misconduct.

We hold that Awkal’s counsel provided ineffective assistance at the guilt phase of

trial by calling an expert witness who testified that Awkal was sane at the time of the

murders, an opinion that directly contradicted Awkal’s only defense. Because we

REVERSE the district court’s judgment based on this conclusion, we do not decide whether

Awkal’s counsel was ineffective at the penalty phase of trial or whether the prosecutor’s

statements implying that Awkal would be set free if the jury found him not guilty by reason

of insanity constituted prosecutorial misconduct. Accordingly, we REVERSE the district

court’s judgment and REMAND this case with instructions that the district court issue a

conditional writ of habeas corpus requiring Awkal’s release unless the State of Ohio

commences a new trial within 180 days from the date that this judgment becomes final.

I. BACKGROUND

In 1992, Awkal was tried in Ohio state court for the shooting deaths of his wife,

Latife Awkal, and her brother, Mahmoud Abdul-Aziz. Awkal was convicted of two counts

of aggravated murder with prior calculation and design with mass-murder and firearm

specifications. After the penalty phase of trial, the trial court followed the jury’s

recommendation and sentenced Awkal to death. On direct appeal, the Ohio Supreme Court

described the facts of the case as follows:

On January 7, 1992, appellant, Abdul Hamin Awkal, shot and killed

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

Abdul-Aziz, at the Family Conciliation Services Department of the

Cuyahoga Domestic Relations Court. Appellant was captured in the

courthouse basement not far from where the shooting took place.

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

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

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

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

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

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

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

No. 01-4278 Awkal v. Mitchell Page 3

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

up with a psychiatrist.

Later, Awkal began working at a General Motors factory in

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

Ohio. He had difficulty sleeping during this period, and was prescribed

medication to help him sleep.

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

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

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

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

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

Metropolitan General Hospital complaining of numbness down his side.

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

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

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

that she understood that love would follow. He unsuccessfully attempted to

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

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

various household tasks.

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

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

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

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

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

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

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

was harassed and threatened by Mahmoud because of his religious beliefs.

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

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

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

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

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

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

illegitimate by the divorce.

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

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

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

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

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

Lebanon with the baby.

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

declined medication. Awkal had counseling sessions four times in

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

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

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

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

brothers because of the divorce.

No. 01-4278 Awkal v. Mitchell Page 4

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

semi-automatic pistol, allegedly to defend himself from Latife’s brothers.

The evening of that same day and the morning of the next, Awkal called

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

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

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

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

and 19, 1991, without incident. During this period, Awkal and Latife agreed

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

Latife’s insistence, the visitation order prohibited Awkal from participating

in any Christmas-related activities with the baby during his visitation.

Awkal also agreed that the family checking accounts, containing

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

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

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

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

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

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

to arrive.

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

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

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

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

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

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

checking accounts, and changed his address at the post office to his brother’s

house in Michigan.

Awkal confronted Mahmoud and Latife in the hallway at

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

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

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

Mahmoud into the room, where he shot his wife and her brother at close

range. Five shell casings were found inside the room; one shell casing was

found in the hall outside the room.

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

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

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

pointed his gun at his head and then at his daughter’s head, threatening to

kill her and then himself. Awkal vowed that nobody was going to take his

baby.

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

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

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

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

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

to fire, and contained six live rounds (one in the chamber; five in the

magazine). Awkal also had another magazine containing thirteen rounds of

No. 01-4278 Awkal v. Mitchell Page 5

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

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

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

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

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

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

thought that he had shot himself.

Awkal was indicted on two counts of aggravated murder with prior

calculation and design, including the multiple-murder death penalty

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

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

by reason of insanity” to the charges against him.

While awaiting evaluation by a court-appointed psychiatrist to

determine whether he was sane and competent to stand trial, Awkal

reportedly had hallucinations involving his wife, who spoke to him and told

him to join her. Two psychiatrists had examined Awkal at the county jail

and found him to be depressed and angry. Awkal was prescribed

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

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

anti-depressant medications.

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

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

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

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

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

in Dayton, Awkal continued to receive anti-psychotic medication, but at

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

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

to stand trial, but returned him to Dayton for further treatment until the trial

started.

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

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

suggested that a new competency evaluation be undertaken. The trial court

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

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

own defense. After the state closed its case in chief, the trial court dismissed

one of the felonious assault charges.

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

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

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

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

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

Awkal’s pretrial sanity and competency evaluations, testified that Awkal

was sane at the time of the murders. Finally, Dr. Eileen S. McGee, a

psychiatrist awaiting board certification, testified that Awkal was insane at

the time of the shooting, that he did not know what he did was wrong, and

that Latife and Mahmoud had provoked the incident.

No. 01-4278 Awkal v. Mitchell Page 6

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

Latife’s other brothers were religious fanatics, and had harassed him and

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

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

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

religious sect. He denied threatening Latife or her brother.

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

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

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

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

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

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

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

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

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

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

psychiatrist, who testified that Awkal was malingering, that he understood

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

The jury found Awkal guilty as charged on the aggravated murder

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

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

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

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

problem, and believed that Mahmoud’s threats and religious fanaticism were

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

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

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

committed the murders.

Dr. McGee testified that the religious interference of Mahmoud and

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

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

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

requirements of the law of Ohio when the murders occurred.

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

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

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

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

that Latife and Mahmoud facilitated the incident.

Awkal gave an unsworn statement, in which he explained his

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

these religious problems caused his marital problems. He also talked about

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

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

The prosecution rebutted this testimony with Dr. Edward Dutton,

who believed that Awkal was malingering.

No. 01-4278 Awkal v. Mitchell Page 7

The jury found Awkal guilty of the aggravated murder charges and

recommended death. The trial court agreed and imposed the death penalty.

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

State v. Awkal, 667 N.E.2d 960, 963-66 (Ohio 1996). Awkal’s convictions were affirmed

on direct appeal. Id. at 966; see also State v. Awkal, 1995 WL 229123 (Ohio Ct. App. 1995).

The Ohio courts also denied Awkal’s petitions for post-conviction relief. See State v. Awkal,

708 N.E.2d 209 (Ohio 1999); State v. Awkal, 1998 WL 827585 (Ohio Ct. App. 1998).

In 2000, Awkal filed a petition for a writ of habeas corpus in the United States

District Court for the Northern District of Ohio. The district court denied Awkal’s petition

and did not grant a certificate of appealability. We granted a certificate of appealability

permitting Awkal to raise claims of ineffective assistance of counsel and prosecutorial

misconduct. In 2004, during the pendency of his habeas petition, we received a letter from

Awkal containing a motion to terminate his appeal. After holding a number of evaluations

and hearings to explore Awkal’s psychological status, the district court determined that

Awkal was not competent to terminate his appeals. We now review Awkal’s ineffective-

assistance and prosecutorial-misconduct claims.

II. ANALYSIS

A. Standard of Review

When considering a habeas petition, “[w]e review the legal basis for a district court’s

dismissal of a § 2254 petition de novo and the court’s factual findings underlying its analysis

for clear error.” Davis v. Coyle, 475 F.3d 761, 766 (6th Cir. 2007). Awkal filed his habeas

petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), so our review is subject to its constraints. Carter v. Mitchell, 443 F.3d 517, 524

(6th Cir. 2006). AEDPA sets the following standard for our review:

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

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

to any claim that was adjudicated on the merits in State court proceedings

unless the adjudication of the claim—

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

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of

the United States; or

No. 01-4278 Awkal v. Mitchell Page 8

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

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)-(2).

The Supreme Court has explained these standards as follows:

Under the “contrary to” clause, a federal habeas court may grant the

writ if the state court arrives at a conclusion opposite to that reached by this

Court on a question of law or if the state court decides a case differently than

this Court has on a set of materially indistinguishable facts. Under the

“unreasonable application” clause, a federal habeas court may grant the writ

if the state court identifies the correct governing legal principle from this

Court’s decisions but unreasonably applies that principle to the facts of the

prisoner’s case.

Terry Williams v. Taylor, 529 U.S. 362, 412-13 (2000); see also Thompkins v. Berghuis, 547

F.3d 572, 580 (6th Cir. 2008). We have held that “clearly established law under [AEDPA]

encompasses more than just bright-line rules laid down by the [Supreme] Court. It also

clearly includes legal principles and standards enunciated in the Court’s decisions.” Taylor

v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002).

B. Claims of Ineffective Assistance of Counsel

Awkal contends that he received ineffective assistance of counsel at the guilt and

penalty phases of his trial. At trial, Awkal’s sole defense was that he was not guilty by

reason of insanity. Awkal argues that his attorney’s guilt-phase performance was ineffective

because his attorney failed to present a competent mental-health expert to support this

defense. Awkal also asserts that he received ineffective assistance of counsel at the penalty

1

phase of his trial because his attorney failed to present certain mitigating evidence.

1

In both his guilt- and penalty-phase claims of ineffective assistance, Awkal argues that he was

denied his constitutional right to an appropriate expert under Ake v. Oklahoma, 470 U.S. 68 (1985). Even

assuming that this claim is not procedurally defaulted and that it falls within the scope of the certificate

of appealability, we conclude that it would not succeed on the merits.

In making this claim, Awkal relies heavily on Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000).

In Skaggs, the defendant asserted an ineffective-assistance claim and a claim that he had been denied due

process under Ake. Skaggs, 235 F.3d at 267 n.2. Skaggs based both of these claims on the fact that

defense counsel had chosen a fraudulent and erratic psychiatrist to assist in Skaggs’s defense. Id. This

court explained that the two claims are distinct: “[O]ur concern under Ake is with the actions of the [State]

and whether Skaggs had ‘access to a competent psychiatrist’ in preparation of his defense. . . . The fact that

defense counsel failed to engage a competent psychiatrist to testify on Skaggs’s behalf, however, is

significant to Skaggs’s ineffective assistance of counsel claim.” Id. Awkal makes no clear argument that

the state, rather than his own counsel’s errors, denied him access to a competent expert. The record shows

No. 01-4278 Awkal v. Mitchell Page 9

1. Clearly Established Federal Law

To succeed on his ineffective-assistance claims, Awkal must first demonstrate

that his counsel’s performance was deficient, namely that his “counsel’s representation

fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S.

668, 688 (1984). Next, Awkal must show that this deficiency resulted in prejudice by

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

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

is a probability sufficient to undermine confidence in the outcome.” Id. at 694. Finally,

because our review of this case is controlled by AEDPA, Awkal must “show that the

[Ohio Supreme Court] applied Strickland to the facts of his case in an objectively

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

2. Ineffective Assistance of Counsel at the Guilt Phase

a. Deficient Performance

At trial, Awkal’s sole defense to the murder charges that he faced was that he

was not guilty by reason of insanity. During the guilt phase of trial, Awkal’s counsel

attempted to present the testimony of three expert witnesses to support this defense: Dr.

Paul E. Hewitt (“Hewitt”), Dr. Magdi S. Rizk (“Rizk”), and Dr. Eileen S. McGee

(“McGee”). Hewitt testified first, but shortly after he began testifying, the trial court

determined that Hewitt was not a licensed psychologist.2 The trial court determined that

because Hewitt was not a licensed psychologist, he was not qualified to offer an opinion

regarding the sole guilt-phase issue—Awkal’s sanity at the time of the crime. The trial

court therefore excluded Hewitt’s testimony and instructed the jury to disregard the

testimony Hewitt had already provided. Rizk, a court-appointed forensic psychiatrist

that Awkal had access to McGee. The fact that she was inexperienced and may not have been the strongest

possible expert should be considered in the context of Awkal’s claim of ineffective assistance of counsel

and does not indicate that the state neglected its duty under Ake. Accordingly, to the extent that Awkal

raises a properly preserved claim of Ake error, this claim would not succeed on the merits.

2

Not only was Hewitt unlicensed, but also Hewitt had received his Masters and Ph.D. from

Century University in California, a mail-in university. Hewitt was, however, permitted to testify at the

penalty phase.

No. 01-4278 Awkal v. Mitchell Page 10

who had originally evaluated Awkal to determine if Awkal was competent to stand trial,

testified that he believed that Awkal was sane at the time of the crime. McGee, a

licensed pediatrician who had been practicing psychiatry for about a year but who was

not yet a board-certified psychiatrist, was the final expert to testify at the guilt phase.

Clearly, Awkal’s counsel’s selection of guilt-phase experts was far less than

ideal; counsel chose one unlicensed psychologist, a new and uncertified psychiatrist, and

a psychiatrist whose testimony completely undermined Awkal’s sole defense. We

conclude that counsel’s decision to call Rizk to testify at the guilt phase constituted the

deficient performance necessary to establish ineffective assistance of counsel.

The facts of Awkal’s case are comparable to those of Combs v. Coyle, 205 F.3d

269 (6th Cir. 2000). Like Awkal, Combs did not contend that he was innocent. Id. at

273. Instead, Combs’s defense was that “he was too intoxicated from alcohol and drugs

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

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

Combs was intoxicated, but called only one expert witness, a psychologist who testified

on cross-examination that, contrary to Combs’s defense, Combs had killed intentionally.

Id. We held that Combs received ineffective assistance of counsel because “[r]egardless

of whether Combs’s counsel should have known or instead actually knew [the expert’s]

opinion regarding Combs’s intent, however, counsel’s decision to put him on the stand

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

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

one of the elements of its case in chief. Quite simply, this testimony was completely

devastating to the defense, and counsel’s decision to present it was objectively

unreasonable.” Id. at 288.

There are no relevant distinctions between Awkal’s and Combs’s claims. Not

guilty by reason of insanity was Awkal’s sole defense. Like the psychologist in Combs,

Rizk testified about Awkal’s psychological background, including the fact that Rizk had

earlier found Awkal incompetent to stand trial. On direct examination, Rizk fought

defense counsel’s questions and testified that Awkal did not experience hallucinations

No. 01-4278 Awkal v. Mitchell Page 11

at the time of the crime. Defense counsel read an isolated portion of Rizk’s sanity report

dealing with Awkal’s perceptions at the time of the murders, but did not ask Rizk if he

thought that Awkal was insane at the time of the crime. J.A. at 2078 (Trial Tr. Rizk

Test. at 1423). On cross-examination, Rizk unequivocally stated that Awkal was not

legally insane at the time of the crime. Rizk read a portion of his report explaining his

conclusion that Awkal was not legally insane:

[Awkal] has no past history . . . of a mental disease of psychotic

proportions, period. There is also no evidence of residual symptoms or

past psychotic clauses [sic].

At the time of the incident, which is the shooting, [Awkal] was

angry and upset and had no psychotic motive for the act. There is no

history or documentation of any bizarre behavior of the defendant

immediately prior to the act. The defendant’s belief that he saw a

monster’s face could be explained on the basis of an illusion, and

between brackets, rather than on the basis of mental illness.

At the present time the defendant is not manifesting any

symptoms of psychosis. It is my opinion that at the time of the act the

defendant did not suffer from any mental disease or defect which

impaired his ability to know the wrongfulness of his act.

J.A. at 2115 (Trial Tr. Rizk Test. at 1460). Defense counsel had this report before

calling Rizk, and even asked Rizk about a selected portion of it, but did not object to

Rizk’s reading and did not attempt to cabin its impact. J.A. at 2065, 2078, 2115-16

(Trial Tr. Rizk Test. at 1410, 1423, 1460-61). Instead, defense counsel repeatedly tried

to coax Rizk into admitting that he believed that Awkal suffered from hallucinations or

was psychotic. See, e.g., J.A. 2079-89 (Trial Tr. Rizk Test. at 1424-34). Rizk

consistently stated that no matter which medications Awkal had received and no matter

what other doctors might have thought, it was his opinion that Awkal was not psychotic,

did not suffer from hallucinations, and was sane at the time of the crime. See, e.g., J.A.

at 2079, 2102, 2107-09 (Trial Tr. Rizk Test. at 1424, 1447, 1452-54).

The fact that Awkal’s counsel possessed and referenced Rizk’s sanity report,

which stated that Awkal was sane at the time of the crime, does not change our analysis.

See J.A. at 2078 (Trial Tr. Rizk Test. at 1423). In Combs, we clearly stated that, given

the fact that the expert’s testimony completely eviscerated the sole defense, the decision

No. 01-4278 Awkal v. Mitchell Page 12

to put that expert on the stand was “objectively unreasonable,” regardless of whether

defense counsel knew or should have known the contents of that expert’s opinion.

Combs, 205 F.3d at 288. Accordingly, even though it appears that Awkal’s counsel

knew of Rizk’s opinion on sanity, we hold that it was deficient performance for Awkal’s

counsel to call as a witness Rizk, whose testimony ran counter to Awkal’s sole defense.

Our opinion in Morales v. Mitchell, 507 F.3d 916 (6th Cir. 2007), does not alter

this result. Morales’s defense was that, at the time of the crime, he could not “appreciate

the consequences of his acts or refrain from committing those acts, or understand the

difference between right and wrong.” Id. at 921 (internal quotation marks omitted).

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

voluntary intoxication at the time of the crime. Morales’s counsel presented the

testimony of a forensic psychologist who testified that “Morales’s personality disorder,

combined with his alcohol dependency and abuse, deprived him of the ability to refrain

from or understand the wrongfulness of his actions.” Id. at 938. However, this expert

also stated that she agreed that “voluntary intoxication does not serve as a basis for the

insanity defense.” Id. at 936. We explained that “because [the expert’s] one unhelpful

comment was improperly admitted over defense counsel’s objection, we decline to hold

that trial counsel provided ineffective assistance in presenting [the expert’s] testimony.”

Id. at 938. In Morales, we distinguished Combs in part because “unlike Combs’s

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

trial.” Id.

Awkal’s case is analogous to Combs rather than to Morales. Like the expert in

Combs, Rizk’s testimony completely undermined Awkal’s sole defense. Rizk did testify

regarding religious friction in Awkal’s family and the fact that Rizk had found Awkal

not competent to stand trial. Though these aspects of Rizk’s testimony were not harmful

to Awkal, they did not help his defense at the guilt phase. Under Ohio law effective at

the time of Awkal’s trial, “[a] person is ‘not guilty by reason of insanity’ . . . only if he

proves . . . that at the time of the commission of the offense, he did not know, as a result

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

No. 01-4278 Awkal v. Mitchell Page 13

§ 2901.01(N). Therefore, the sole portion of Rizk’s testimony that was relevant at the

guilt phase was Rizk’s opinion regarding Awkal’s sanity at the time of the crime. Rizk’s

only relevant testimony was clearly, and completely, opposed to Awkal’s sole defense.

Unlike the single, isolated comment by the expert in Morales, Rizk’s testimony

thoroughly undermined Awkal’s defense and was not counterbalanced by other relevant

information that could have helped Awkal. Instead, Rizk’s testimony was akin to that

of the expert in Combs; it so devastated Awkal’s sole defense that it was objectively

unreasonable for Awkal’s counsel to call Rizk to the stand. The fact that Awkal’s

counsel knew of and had access to Rizk’s reports does not change our conclusion that

presenting an expert witness whose testimony plainly contradicts and utterly destroys

an individual’s sole defense constitutes deficient performance by counsel.

b. Prejudice3

In addition to showing that his counsel’s performance was deficient, Awkal has

shown that this deficiency prejudiced Awkal. The state presented other evidence that

Awkal was legally sane at the time of the crime and that Awkal acted with prior

calculation. For example, the prosecutor emphasized that Awkal had diapers and other

baby supplies in his car at the time of the murders, that he was arrested with a full clip

of bullets, and that he had taken steps indicating his intent to move to another area. J.A.

at 2444-50 (Trial Tr. State Closing at 1776-82). However, Awkal countered this

evidence with testimony explaining that he intended to commit suicide but that his

highly emotional mental state caused him to break with reality and kill his wife and her

brother without intent or knowledge of his own actions. Just as in Combs, defense

counsel’s unreasonable decision to present Rizk’s testimony “destroy[ed] any hope of

a successful [insanity] defense” and “was completely devastating to the defense.”

Combs, 205 F.3d at 288; see also id. at 290 (“The testimony of the sole defense expert

that Combs, although intoxicated, nevertheless acted with purpose and intent was

3

Awkal argues that his counsel’s performance was so deficient that he was constructively

deprived of counsel and that we can therefore presume prejudice under United States v. Cronic, 466 U.S.

648 (1984); see also Ivory v. Jackson, 509 F.3d 284, 295 (6th Cir. 2007). However, because we conclude

that Awkal can show prejudice sufficient to satisfy the Strickland standard, we need not decide whether

Awkal’s counsel’s errors were so severe as to constitute a constructive denial of counsel.

No. 01-4278 Awkal v. Mitchell Page 14

obviously damaging to the defense. Furthermore, [the expert’s] testimony provided the

State with its most powerful evidence of purpose.”).

Defense counsel’s decision to call Rizk was so damaging to Awkal’s defense that

even the prosecutor openly wondered why counsel made this choice. Before Rizk took

the stand, the judge, at the prompting of the prosecutor, asked Awkal’s counsel if they

had “strategic reasons for calling Dr. Rizk.” J.A. at 2064-66 (Trial Tr. at 1409-11).

Defense counsel stated that he had no duty to provide such an explanation and declined

to do so. Id. The prosecutor then stated, for the record, that defense counsel “have had

for some time the report of Dr. Rizk concerning the sanity evaluation of [Awkal].” Id.

at 2065 (Trial Tr. at 1410). Defense counsel’s choice to call an expert whose report

indicated that he would testify that Awkal had been legally sane was such an obviously

damaging decision that even the prosecutor was concerned about it. The state also

highlighted defense counsel’s damaging decision during closing argument, telling the

jury that: “Then Mr. Gill called one of our witnesses, Dr. Rizk to the stand. I am still

trying to figure that one out.” J.A. at 2457 (Trial Tr. State Closing at 1789). The judge

overruled an objection to this comment. Id. Defense counsel’s own attempt to confront

Rizk’s testimony in his closing argument included an admission that Rizk “didn’t quite

agree” with defense counsel. J.A. at 2478-79 (Trial Tr. Def. Closing at 1810-11).

Defense counsel’s decision to call Rizk caused such obvious and extensive harm to

Awkal’s case that there is a reasonable probability that, had defense counsel not called

Rizk, the jury’s verdict would have been different.

The fact that the state indicated that it would have called Rizk to testify if Awkal

had not done so does not change our conclusion that Awkal was prejudiced by his

counsel’s objectively unreasonable decision to call Rizk. See J.A. at 2097, 2457 (Trial

Tr. at 1442, 1789). The error here is not that the testimony countering Awkal’s not-

guilty-by-reason-of-insanity defense was presented at some point during trial, but rather

the fact that Awkal’s own counsel called an expert witness whose testimony completely

destroyed this defense. It is part of the normal course of a trial for the prosecution to

No. 01-4278 Awkal v. Mitchell Page 15

oppose the defendant’s position, but it is devastating for a defendant to present

voluntarily evidence that completely contradicts his entire defense.

Similarly, Awkal has shown prejudice even though his counsel called an expert

witness, McGee, who testified that Awkal was legally insane at the time of the crime.

In the normal course of a trial, prosecution and defense experts will often disagree, and

it is the jury’s place to resolve any conflict. Here, however, the two defense experts

presented diametrically opposed views on the critical guilt-phase issue. The jury could

not seriously consider or accept Awkal’s assertion that he was not guilty by reason of

insanity after Awkal’s own attorneys had given them a witness who unequivocally stated

that this defense was not applicable to Awkal. Awkal’s counsel did call an expert who

supported Awkal’s defense, but McGee’s testimony could not undo the damage caused

by defense counsel’s unreasonable decision to call Rizk.

c. Ohio Supreme Court’s Application of Strickland to These Facts

In addition to showing that his counsel’s performance was deficient and that he

was prejudiced by this deficiency, Awkal has “show[n] that the [Ohio Supreme Court]

applied Strickland to the facts of his case in an objectively unreasonable manner.” Cone,

535 U.S.at 699. After considering Awkal’s claims of ineffective assistance of counsel,

the Ohio Supreme Court concluded that “Awkal was not deprived of a fair trial by his

trial counsel. Given the evidence supporting his conviction, he was not prejudiced by

what occurred at trial.” Awkal, 667 N.E.2d at 971. The Ohio Supreme Court explained

its holding as follows:

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

Rizk is adequately qualified and has testified in numerous other similar

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

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

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

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

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

medication levels, and his hallucinations.

Counsel concluded Awkal’s affirmative defense by calling Dr.

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

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

No. 01-4278 Awkal v. Mitchell Page 16

practicing psychiatry for only one year. Dr. McGee testified that Awkal,

as evidenced by his hallucinations involving his wife in his cell in

Dayton, had broken with reality at the time of the murders. This break

with reality impaired his ability to know right from wrong at the time of

the murders. Although her opinion may have been diminished by her

lack of certification and inexperience, Dr. McGee supported Awkal’s

affirmative defense.

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

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

contradicting Awkal’s affirmative defense but also gave other evidence

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

responsible for his acts. However, Drs. McGee and Hewitt were called

to testify and did testify during the penalty phase of the trial, giving

pro-defense opinions. Dr. Samy also gave a pro-defense opinion in the

penalty phase.

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

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

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

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

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

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

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

positive in order for counsel to be considered “effective.” We do not

believe the record establishes that Awkal’s attorneys were ineffective at

trial.

Awkal, 667 N.E.2d at 971-72 (citation omitted).

This analysis and conclusion are objectively unreasonable applications of

Strickland because they fail to recognize the extent of the obvious harm caused by trial

counsel’s decision to call Rizk. The analysis also mischaracterizes Rizk’s testimony as

helpful to Awkal. Though Rizk did testify regarding Awkal’s family and psychiatric

history, these facts were irrelevant at the guilt phase. As discussed above, the only

relevant question at the guilt phase was whether Awkal was sane at the time of the crime.

Ohio Rev. Code § 2901.01(N). Accordingly, anything else that Rizk said at the guilt

phase was irrelevant and did not “assist” Awkal’s defense. Nor did it matter that Rizk

had previously found Awkal incompetent to stand trial, because that incompetency was

unrelated to Awkal’s mental state at the time of the crime. Rizk’s relevant guilt-phase

testimony obviously eviscerated Awkal’s sole defense, a fact that the Ohio Supreme

No. 01-4278 Awkal v. Mitchell Page 17

Court ignored when it assumed that Rizk’s testimony was simply one part of an overall

strategy. Once the jury heard one of Awkal’s own witnesses state that Awkal was sane

at the time of the crime, no strategy could have saved his sole defense. Because the Ohio

Supreme Court’s application of Strickland was objectively unreasonable, and because

we conclude that Awkal received ineffective assistance of counsel at the guilt phase of

trial, we REVERSE the district court’s judgment denying habeas relief.

3. Ineffective Assistance at the Penalty Phase

Awkal also argues that his counsel rendered ineffective assistance at the penalty

phase. Awkal asserts that his counsel failed to provide the jury with relevant mitigating

material, namely a 1985 police report documenting a psychotic episode that Awkal

experienced,4 and that his counsel failed to retain and use qualified mental-health

experts. The government argues that Awkal’s first claim is procedurally defaulted and

that his second is waived because was not properly raised in the district court. Because

we have reversed the district court’s judgment on the ground that Awkal received

ineffective assistance of counsel at the guilt phase, we do not decide whether his claims

of ineffective assistance of counsel at the penalty phase have been properly preserved

or whether they would succeed on the merits.

C. Claims of Prosecutorial Misconduct

Awkal’s final claim is that the prosecutor committed misconduct that deprived

Awkal of due process of law. During guilt-phase closing argument, in reference to

McGee’s expert testimony, the prosecutor stated: “[McGee] comes in here and says for

a brief moment that this guy hallucinated on January 7th and as a result of that he was

legally insane, but he is now sane, so let him walk out that door.” J.A. at 2458 (Trial Tr.

State Closing 1790). The prosecutor also characterized McGee’s decision to testify that

Awkal was insane at the time of the crime as “one of the most irresponsible acts he had

ever seen.” Id. Awkal’s counsel failed to object to these statements.

4

We note that Awkal’s trial counsel attempted to admit this report. The trial court concluded that

the report “has little or no probative value beyond the testimony regarding that incident” that Awkal had

already offered. J.A. at 2306 (Trial Tr. at 1645).

No. 01-4278 Awkal v. Mitchell Page 18

This claim is procedurally defaulted. A “question of federal law decided by a

state court” is procedurally defaulted “if the decision of that court rests on a state law

ground that is independent of the federal question and adequate to support the judgment.

This rule applies whether the state law ground is substantive or procedural.” Coleman

v. Thompson, 501 U.S. 722, 729 (1991) (citations omitted). Because Awkal’s counsel

failed to object to the statements in question, the Ohio Supreme Court reviewed the

prosecutor’s actions for plain error. Awkal, 667 N.E.2d at 970. The Ohio Supreme

Court concluded that “[i]t was error for the prosecutor to argue that Awkal would ‘walk

out that door’ if the jury found him not guilty by reason of insanity.” Id. However,

although the Ohio Supreme Court found that this statement was intended to “inflame the

passions of the jury,” it concluded that the prosecutor’s arguments did not constitute

plain error. Id. at 970-71. The district court concluded that this claim was procedurally

defaulted and that the claim would fail on the merits even if it had not been defaulted.

J.A. at 211-12, 283-84 (Dist. Ct. Op. at 115-16, 187-88). We have held that “Ohio’s

contemporaneous objection rule constitutes an adequate and independent state ground

barring federal habeas review and that the application of plain error review constitutes

enforcement of the rule.” Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005).

Accordingly, because Awkal’s counsel failed to object to the prosecutor’s statements at

trial and because the Ohio Supreme Court applied plain-error review to this claim, the

claim is procedurally defaulted.

Because we grant Awkal’s petition for habeas on the ground that he received

ineffective assistance of counsel at the guilt phase, we do not address whether Awkal has

established the cause and prejudice necessary to excuse his procedural default of the

prosecutorial-misconduct issue.5 We do, however, note that two major errors occurred

here. First, as the Ohio Supreme Court mentioned, the prosecutor’s remark was legally

incorrect and was intended to inflame the jury’s sentiments. The prosecutor’s statements

provided the jury with false and misleading information regarding the effect of a not-

5

The fact that Awkal does not raise an argument concerning cause and prejudice in his briefs

would not preclude us from deciding whether cause and prejudice exist or from proceeding to the merits

if we found that cause and prejudice existed. Thompkins v. Berghuis, 547 F.3d at 588-89.

No. 01-4278 Awkal v. Mitchell Page 19

guilty-by-reason-of-insanity verdict, the critical guilt-phase issue in this case. The

second error occurred when Awkal’s counsel failed to object to this obviously

inflammatory and incorrect statement. Though we do not determine the merits of this

issue, we observe that both the prosecutor and defense counsel committed serious errors

which should not be repeated in this case or in others.

III. CONCLUSION

For the reasons set out above, we REVERSE the district court’s judgment and

REMAND this case with instructions that the district court issue Awkal a conditional

writ of habeas corpus requiring Awkal’s release unless the State of Ohio commences a

new trial within 180 days from the date that this judgment becomes final.

No. 01-4278 Awkal v. Mitchell Page 20

_________________

DISSENT

_________________

RONALD LEE GILMAN, Circuit Judge, dissenting. Because I disagree with

the majority’s conclusion that Awkal has satisfied the Strickland test for ineffective

assistance of counsel, I respectfully dissent.

I. INEFFECTIVE ASSISTANCE AT THE GUILT PHASE

A. Deficiency

The majority holds that Awkal has satisfied the first Strickland requirement by

demonstrating that his counsel’s performance during the guilt phase of trial “fell below

an objective standard of reasonableness.” See Strickland v. Washington, 466 U.S. 668,

688 (1984). By the majority’s reckoning, defense counsel’s presentation of Dr. Magdi

Rizk “devastated Awkal’s sole defense” when the doctor testified that Awkal was sane

at the time of the killings. (Majority Op. at 13) The only case cited by the majority in

support of this proposition is Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000).

I recognize that defense counsel’s decision to call Dr. Rizk as a witness was

questionable at best. But I am not convinced that, when considered “in light of all the

circumstances,” the decision was “outside the wide range of professionally competent

assistance.” See Strickland, 466 U.S. at 690.

Although the majority purports to find “no relevant distinctions” between this

case and Combs (Majority Op. at 11), that characterization strikes me as inaccurate. To

begin with, Combs’s counsel called only one expert witness to testify regarding the sole

defense theory—that Combs’s intoxication deprived him of the ability to form an intent

to kill. Combs, 205 F.3d at 287-88. The expert contradicted that theory when he

testified on cross-examination that Combs had acted purposefully and intentionally. Id.

at 287. Here, Awkal’s counsel presented not one but three expert witnesses at the guilt

phase of trial to testify regarding Awkal’s alleged insanity. Even though the trial court

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

No. 01-4278 Awkal v. Mitchell Page 21

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

phase of the case.

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

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

trial. He also testified about the religious friction that permeated Awkal’s interactions

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

favorable to Awkal. But, as the majority discusses in detail, Dr. Rizk contradicted the

defense’s insanity theory on cross-examination when he testified that, in his opinion,

Awkal was sane at the time of the killings.

Finally, Dr. Eileen McGee testified. She opined that Awkal was insane at the

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

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

Her testimony unambiguously supported the defense’s insanity theory.

The instant case is similar to Combs in that one expert witness—here, Dr.

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

ultimately contradicted the sole defense theory when cross-examined by the prosecution.

There the similarity ends. As noted above, Awkal’s attorneys called two other experts

in addition to Dr. Rizk. Both of those experts squarely bolstered the insanity theory,

even if the testimony of one of them—Dr. Hewitt—was ultimately stricken due to his

lack of a psychologist’s license in Ohio.

Another important distinction between this case and Combs relates to the

strategic implications of defense counsel’s relative awareness of their experts’ likely

testimony. “[S]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690.

Defense counsel in Combs did not appear to have ascertained before presenting the

expert witness what that witness was actually going to say on the stand. Indeed,

Combs’s counsel admitted that he was “surprised” when the expert testified that Combs

was able to form an intent to kill. Combs, 205 F.3d at 288. This court recognized on

appeal in Combs that, “[a]lthough Combs’s counsel’s decision to present Dr. Fisher’s

No. 01-4278 Awkal v. Mitchell Page 22

testimony may be considered a strategic one, it was a decision made without undertaking

a full investigation.” Id.

Here, however, Awkal’s counsel had reviewed Dr. Rizk’s sanity report prior to

the trial. That report plainly stated that Awkal was sane at the time of the crime.

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

report indicates that they made a strategic decision to do so, however questionable in

hindsight. One reasonable explanation is that, knowing that the prosecution was going

to call Dr. Rizk anyway, Awkal’s counsel opted to call him for the defense to take some

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

first. Along similar lines, defense counsel may have felt that having Dr. Rizk discuss

Awkal’s initial lack of competency to stand trial, as well as various other mental and

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

that Awkal was in fact sane at the time of the killings. Whatever defense counsel’s

reasoning, given their knowledge of Dr. Rizk’s opinion on the insanity issue, their

decision to call him as a defense witness rather than waiting for him to appear as the

prosecution’s witness suggests that the decision was a strategic one.

The Supreme Court has cautioned that “a court must indulge a strong

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

professional assistance; that is, the defendant must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial strategy.”

Strickland 466 U.S. at 689 (internal quotation marks omitted). I do not believe that

Awkal has overcome this strong presumption. He therefore cannot satisfy Strickland’s

deficiency standard.

B. Prejudice

Even assuming that Awkal has shown that his counsel was deficient, he still

cannot satisfy the second part of the Strickland ineffective-assistance test because he has

failed to show that his counsel’s deficiency prejudiced him. See id. at 691. There is no

dispute that Awkal shot his estranged wife and brother-in-law to death. His sole defense

No. 01-4278 Awkal v. Mitchell Page 23

is that he was legally insane at the time, even though the evidence overwhelmingly

indicates otherwise.

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

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

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

morning to declare that he would murder their entire family if Latife did not come back

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

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

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

maintained with Latife.

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

copies of the baby’s health records, and a variety of childcare supplies on his person.

Once inside, he apparently remained calm and said little before firing at least five bullets

into Latife and Mahmoud at close range. Awkal then picked up the baby and proceeded

to quickly make his way towards an exit. He vowed that no one was going to take the

baby away, and he did not surrender until one of the deputies shot him in the back.

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

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

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

in fact totally inconsistent with his testimony that he had intended to kill himself in front

of Latife. I am accordingly convinced that there was little that anyone representing

Awkal could have done at trial to establish that, at the time of the killings, Awkal “did

not know, as a result of a severe mental disease or defect, the wrongfulness of [his] acts.”

See Ohio Rev. Code § 2901.01(A)(14) (setting the standard for a finding of not guilty

by reason of insanity). The majority nevertheless concludes that the decision of Awkal’s

counsel to call Dr. Rizk prejudiced Awkal because it “destroyed any hope of a successful

insanity defense.” (Majority Op. at 14 (quoting Combs, 205 F.3d at 288) (internal

punctuation omitted)) I would instead suggest that, in light of the overwhelming

No. 01-4278 Awkal v. Mitchell Page 24

evidence against him, Awkal never had any realistic hope of a successful insanity

defense.

Assuming that my view of the evidence is a reasonable one, then Dr. Rizk’s

testimony cannot be said to have singlehandedly “destroyed” Awkal’s insanity defense,

especially where the defense also presented the testimony of Dr. McGee, herself a

psychiatrist, who opined that Awkal was insane at the time of the murders. The majority

summarily argues that “McGee’s testimony could not undo the damage cause by defense

counsel’s unreasonable decision to call Rizk.” (Majority Op. at 15) But this assertion,

which the majority presents without any supporting caselaw, ignores the ability of the

jury to weigh Dr. Rizk’s testimony against that of Dr. McGee and also against the

insanity-related evidence as a whole. According to the majority’s rationale, Dr. Rizk’s

testimony was so destructive that no amount of contrary expert testimony would have

helped the defense. This implies that even if Awkal’s counsel had put up, say, five other

experts to testify that Awkal was insane, the jury could not have looked past the one

adverse opinion. I find the majority’s rationale unpersuasive.

Moreover, I do not believe that the majority has adequately accounted for the fact

that the prosecution would have called Dr. Rizk to testify that Awkal was sane at the

time of the offense if the defense had not done so first. The majority reasons that the

effect of Awkal’s own witness contradicting the insanity defense was inherently more

prejudicial that if the same witness had done so while testifying for the prosecution.

Although I have no doubt that there is some qualitative difference between the impact

of adverse testimony delivered by a defense witness and that of a witness presented by

the prosecution, the majority has not demonstrated why that distinction is so profound

as to render Dr. Rizk’s testimony per se prejudicial under Strickland. To the contrary,

I believe that the inevitability of Dr. Rizk’s testimony in this case compels the

conclusion that the trial’s outcome would have been the same regardless of which side

presented him as its witness. See Strickland, 466 U.S. at 694 (holding that prejudice is

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

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

No. 01-4278 Awkal v. Mitchell Page 25

I thus conclude that Awkal cannot satisfy either of Strickland’s requirements for

establishing the ineffective assistance of counsel at the guilt phase of the trial. My

conclusion leads me to believe that the Ohio Supreme Court applied Strickland in a

reasonable manner. This requires me to now address the two grounds for relief that the

majority had no reason to reach in light of its holding regarding ineffective assistance

at the guilt phase. Those claims are that (a) Awkal’s counsel rendered ineffective

assistance at the penalty phase, and (b) the prosecutor engaged in misconduct at the guilt

phase of trial, thus depriving Awkal of due process.

II. INEFFECTIVE ASSISTANCE AT THE PENALTY PHASE

Awkal contends that his trial counsel rendered ineffective assistance by failing

to provide the trial court with a copy of a police report documenting his involuntary

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

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

first part of this claim is procedurally defaulted and the second part lacks merit. I will

address each part in turn below.

A. Failure to provide mitigation evidence

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

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

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

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

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

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

failure to obtain and introduce a copy of a police report relating to the 1985 incident

during the penalty phase of trial constituted the ineffective assistance of counsel.

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

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

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

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

No. 01-4278 Awkal v. Mitchell Page 26

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

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

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

380, 385 (6th Cir. 2002).

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

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

Rev. Code § 2953.21(A)(2). The claim is thus procedurally defaulted. Because Awkal

has made no attempt to establish cause and prejudice for his default, see Coleman v.

Thompson, 501 U.S. 722, 750 (1991) (noting that a petitioner can overcome procedural

default by demonstrating “cause for the default and actual prejudice as a result of the

alleged violation of federal law,” or by demonstrating “that failure to consider the claims

will result in a fundamental miscarriage of justice”), the claim is not properly before us

for review. See Williams v. Anderson, 460 F.3d 789, 807 (6th Cir. 2006) (declining to

reach the merits of the petitioner’s claim where he failed to argue cause and prejudice

to excuse the default).

B. Retaining and using qualified mental-health experts

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

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

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

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

mitigation evidence. I disagree.

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

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

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

that the judge did allow Dr. Hewitt to testify at the penalty phase of the case. Moreover,

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

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

“collapsed” on the day of the murders, that the murders were “spontaneous,” and that

Awkal was unable to appreciate the criminality of his conduct. Dr. Hewitt also testified

No. 01-4278 Awkal v. Mitchell Page 27

that Awkal was not “competent to know right from wrong or what he was doing and that

this was a spontaneous kind of thing provoked by the overall situation at the time.” This

testimony supported defense counsel’s argument that Awkal suffered from a “mental

disease or defect”—a mitigating factor under Ohio law. See Ohio Rev. Code

§ 2929.04(B)(3). Defense counsel clearly did not fall below an objective standard of

reasonableness by presenting Dr. Hewitt’s testimony on this mitigating factor. See

Strickland, 466 U.S. at 688.

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

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

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

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

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

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

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

that the mitigating factor . . . utilizes the term “substantial capacity[,]” which is a term

allowing a broader range of [mental] conditions than the term “capacity” standing

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

did not necessarily detract from the testimony of the penalty-phase experts about

Awkal’s mental condition.

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

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

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

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

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

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

by presenting this favorable testimony.

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

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

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

No. 01-4278 Awkal v. Mitchell Page 28

his mental condition. But Awkal’s argument overlooks Dr. McGee’s testimony that she

had started her professional training in child psychiatry in 1986, had taken a law-school

class on forensic psychiatry, and had worked for four months with a forensic psychiatrist

in Cleveland. At the time of the trial, Dr. McGee had closed her pediatric practice, had

taken the test to become board-certified in psychiatry, and was practicing psychiatric

medicine. Seventy percent of her patients were adults.

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

demonstrates that she was clearly qualified to act as an expert witness on Awkal’s

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

law, any doctor licensed to practice medicine is competent to testify about medical

issues.”). This court has held that “[a] licensed practitioner is generally held to be

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

Mitchell, 440 F.3d 754, 772 (6th Cir. 2006). Awkal can make no such showing

regarding Dr. McGee. Because Dr. McGee was qualified under Ohio law to give an

expert opinion, and in fact gave competent testimony that Awkal was mentally ill,

Awkal’s counsel was not constitutionally ineffective for retaining her and presenting her

testimony during the penalty phase of trial.

In sum, Awkal has failed to demonstrate that defense counsel was ineffective

during the penalty phase of his trial. I will thus move on to address his final remaining

claim regarding prosecutorial misconduct.

III. PROSECUTORIAL MISCONDUCT

During closing argument in the guilt phase of the trial, the prosecutor made the

following isolated comment about Dr. McGee’s testimony:

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

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

sane, so let him walk out the door.

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

result, he was denied the due process of law.

No. 01-4278 Awkal v. Mitchell Page 29

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

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

Supreme Court reviewed the claim under the plain-error standard. State v. Awkal, 667

N.E.2d 960, 970 (Ohio 1996). The Supreme Court denied the claim, explaining:

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

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

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

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

psychiatric facility until his sanity was restored. This statement plainly

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

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

a fair trial and did not constitute plain error.

Id. at 970-71.

Awkal subsequently raised the prosecutorial-misconduct allegation in his federal

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

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

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

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

support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-730 (1991). And a

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

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

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

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

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

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

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

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

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

Lundgren v. Mitchell, 440 F.3d at 765. Because Awkal does not advance a cause and

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

consideration.

No. 01-4278 Awkal v. Mitchell Page 30

IV. CONCLUSION

I respectfully dissent from the majority’s holding that Awkal has demonstrated

ineffective assistance of counsel at the guilt phase of the trial. In addition, I conclude

that Awkal’s claims regarding (a) ineffective assistance of counsel at the penalty phase

and (b) prosecutorial misconduct at the guilt phase are either procedurally defaulted or

meritless. I would therefore affirm the judgment of the district court in denying Awkal’s

petition for habeas relief.