# Darryl M. Durr v. Betty Mitchell, Warden

> Court of Appeals for the Sixth Circuit · May 18, 2007 · 487 F.3d 423

URL: https://www.frixlaw.com/law-library/cases/9499693

## Case

- **Full name:** Darryl M. DURR, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** May 18, 2007
- **Citations:** 487 F.3d 423; 2007 U.S. App. LEXIS 11617; 2007 WL 1452280
- **Precedential status:** Published
- **Opinion:** Concurrence by Cole
- **Judges:** Suhrheinrich, Batchelder, Cole
- **Cited by:** 204 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9499693

## How later opinions describe it (automated extraction)

- holding that a petitioner did not establish prejudice by presenting character evidence undiscovered by trial counsel that was simply cumulative of the evidence presented at trial
- affirming the denial of habeas relief despite the fact that, “on de novo review, [the court] might be hard-pressed to conclude . . . [that] any trier of fact could have found the essential elements of the crime beyond a reasonable doubt”
- recognizing prejudice where prosecutor’s closing arguments “impl[ied] that defendant was ... a recidivist continually engaged in criminal conduct”
- holding that the additional mitigating evidence of stable home and personal life was cumulative and not sufficient to establish prejudice
- holding that counsel's failure to request the appointment of a psychologist did not ipso facto render their performance ineffective

## Opinion text

R. GUY COLE, JR., Circuit Judge,
concurring.
I concur in the majority’s opinion, but I write separately to address two concerns.
First, with regard to the rape conviction, I disagree with the Ohio Supreme Court’s view that the circumstantial evidence in this case was “highly probative” of rape. (Maj. Op. 449.) The court relied on (1) Durr’s unexplained statement that he was going to “waste” Angel because “she would tell,” and (2) that her body was nude from the waist down when discovered. This strikes me as somewhat probative; I have doubts whether any juror could properly infer from this evidence, beyond a reasonable doubt, that rape occurred. Nonetheless, AEPDA constrains our review, and I cannot say that the Ohio Supreme Court— even if incorrect—was objectively unreasonable when holding that a juror could reach that conclusion. See Wiggins v. Smith, 539 U.S. 510, 520 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003) (“In order for a federal court to find a state court’s application of our precedent ‘unreasonable,’ the state court’s decision must have been more than incorrect or erroneous.”).
Second, with regard to the relevance of expert testimony to ineffective-assistance claims, the majority’s broad statement that “[pjhrases such as ‘in my opinion’ or ‘it is doubtful’ do not establish prejudice under Strickland,” (Maj. Op. 438), must be clarified. If this statement is read to mean that opinion testimony cannot establish prejudice, it is simply wrong. Opinions are at the heart of expert testimony. See Fed.R.Evid. 702 (“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise ....”) (emphasis added). And expert testimony is often crucial, and necessary, to show what mitigating evidence could have been presented at the penalty phase. In short, there is nothing suspect about testimony involving phrases such as “in my opinion” or “it is doubtful,” and Strickland does not say otherwise. See, e.g., Jacobs v. Horn, 395 F.3d 92, 105 (3d Cir.2005) (holding that petitioner satisfied Strickland’s prejudice prong based on forensic psychiatrist’s “opinion” that peti *450 tioner did not have specific intent to kill); Riley v. Cockrell, 215 F.Supp.2d 765, 777 (D.Tex.2002) (noting that to establish prejudice, petitioner “would have to establish that had his counsel requested Dr. Lawrence to opine whether [petitioner] would commit crimes of violence [that] would constitute a continuing danger to people outside of the prison environment, Dr. Lawrence would have in fact given that opinion, and had Dr. Lawrence so testified, there is a reasonable probability that the result in his punishment hearing would have been different” (emphasis added)).
In this case, it was Dr. Skillings’s Opinion that explaining cross-cultural issues to the jury would have impacted the jurors’ views of Durr. That opinion fails to establish prejudice, not because it is an opinion, but because there is not a reasonable probability that the jury would have reached a different outcome even if it had heard this particular evidence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9499693. Public record. Not legal advice.