Alton Coleman v. Betty Mitchell, Warden

BATCHELDER, Circuit Judge,

Concurrence-Dissent.

I concur in all of the majority opinion except that portion that concludes that Coleman’s death sentence must be reversed because his counsel were ineffective during the penalty phase of the trial.

The sentence of death we are called upon to review in this habeas proceeding was imposed approximately six weeks after a different jury imposed a death sentence on Coleman for the murder of Marlene Walters. This court affirmed the district court’s denial of Coleman’s petition for a writ of habeas corpus in that case. Coleman v. Mitchell, 244 F.3d 533 (6th Cir.2001). In that case, we held that:

Coleman admits that he did not cooperate with counsel regarding the investigation and identification of mitigating evidence; imposed restrictions upon counsel; and refused to submit to further psychological or psychiatric testing. After presenting Coleman with his options, counsel proceeded with the residual doubt theory only at Coleman’s direction. Coleman was competent to stand trial and competent to assist his lawyer with strategic choices.

Id. at 545 (first emphasis added).

In the voluminous record presented to this court in the habeas proceeding before us today, Coleman includes a large collection of newspaper articles detailing the proceedings in the Walters case. Among those articles are accounts of Coleman’s having told reporters that he was “real surprised” when the Walters jury imposed the death penalty, and that he “didn’t expect it at' all.” Also in the voluminous record is Coleman’s initial state-court post-conviction petition. Paragraph 364 of that petition, which is part of his fifty-sixth claim for relief, is Coleman’s claim that he “specifically, consistently and adamantly” refused to cooperate in any way with any investigation into mitigation.

It is true that the record from Coleman’s trial for the Storey murder does not reflect that Coleman was actually advised during that trial of his options with regard to the penalty phase of the trial. However, it is also clear from the materials Coleman has presented to this habeas court, as well as from this court’s opinion in the companion habeas case, that he was well aware of those options; that he was competent to make the choices he made; and that he certainly knew by the time the guilty verdict in the Storey case was handed down that he not only could but should provide the jury some kind of reason not to impose another death sentence. He affirmatively waived his right to do that.

Even if his counsel were required under the reasoning of Carter v. Bell, 218 F.3d 581 (6th Cir.2000), to undertake an independent investigation and to present evidence in mitigation, I would hold, for essentially the same reasons stated in the companion habeas case, see Coleman v. Mitchell, 244 F.3d at 545 , that counsels’ conduct was not deficient here. I acknowledge that in this case Coleman did not actively participate in the trial, as he did in his trial for the Walters murder, but he clearly knew that had he chosen to do so, he could have. The record in this case does not show that he ordered his counsel to pursue the residual doubt approach here, as he did in the other case, and I acknowledge that this is a significant dis *455 tinction between the two cases. I believe, however, that the record here clearly demonstrates that the actions of Coleman’s trial counsel-who did not represent him in the Walters trial but were representing him in the Storey matter during the entire time that the Walters trial was taking place-were “based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.” Strickland v. Washington, 466 U.S. 668, 691 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

Even if counsels’ performance here was deficient, I would find that there has been no showing of prejudice sufficient to meet the second prong of Strickland . Coleman was required to show that there was 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 , 104 S.Ct. 2052 . Coleman has wholly failed to make this showing. The jury in the Storey case convicted Coleman of aggravated murder of a child, with the specification that the aggravated murder was part of a course of conduct involving a purposeful killing of or attempt to kill two or more persons. That jury had before it the evidence of Coleman’s murderous course of conduct, described by the Ohio Supreme Court as “a unique, identifiable plan of criminal activity.” State v. Coleman, 45 Ohio St.3d 298 , 544 N.E.2d 622, 626 (1989). The majority opinion here correctly notes that this plan-during the brief span of the summer of 1984 — included:

the abduction and murder by ligature strangulation of a nine-year old African American girl in Wisconsin; car theft in Illinois; abduction of two nine- or ten-year old African American girls in Indiana, one of whom was murdered by ligature strangulation; murder of a twenty-five-year old African American woman in Indiana by ligature strangulation; car theft and battery in Michigan; murder, in Ohio, of an African American woman and her nine-year-old daughter by strangulation, whose family bracelet was later found under the body of Sto-rey; car theft and battery in Ohio; and an additional murder and car theft in Ohio.

Supra majority at 440 n. 9. In my view, there is no probability — let alone a reasonable probability — that the jury would have decided against imposing the death penalty had it been aware of the evidence of Coleman’s miserable childhood that he now claims his counsel should have unearthed in spite of his adamant obstruction and refusal to cooperate, and presented to the jury over his objections.

Nor do I think there is any probability that requiring Coleman to submit to a psychological or psychiatric examination and presenting the results of such an examination to the jury would have produced a different result. Coleman was found competent to assist his counsel at trial. He was therefore competent to make the determination whether he wanted to have a presentence examination or a mental examination. Coleman refused to have any examination and then argued to the jury— without fear of any current expert testimony or evidence to the contrary 1 — that he was in fact mentally ill. Coleman was entitled to make that decision, but he is not entitled to a finding of Strickland prejudice because the result of that decision was not what he had hoped for.

*456 Finally, the record simply does not support the majority opinion’s conclusion that the fact that Coleman’s trial counsel made a closing argument to the jury undermines the State’s position that Coleman instructed his counsel not to present mitigation evidence. Counsel’s closing argument did not even mention mitigation evidence. It was a dramatic and impassioned plea not to subject Coleman to the electric chair. It was wholly consistent with Coleman’s own attempt to persuade the jury that if they voted for the death penalty for him, it would be that much easier for them to impose the death penalty the next time they were called upon to make such a decision.

I therefore respectfully dissent from that portion of the majority’s opinion holding that the death sentence must be reversed because of ineffective assistance of counsel at the penalty phase of the trial.

. Under Ohio law, Coleman alone could have requested such examinations. See Ohio Rev. Code Ann. §§ 2929.024 and 2929.03(D)(1)(West 2001).