# Haliym v. Mitchell > Court of Appeals for the Sixth Circuit · July 13, 2007 · 492 F.3d 680 URL: https://www.frixlaw.com/law-library/cases/9632130 ## Case - **Full name:** ‘Abdul HALIYM, Also Known as Wayne Frazier, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** July 13, 2007 - **Citations:** 492 F.3d 680; 2007 U.S. App. LEXIS 16795; 2007 WL 2011268 - **Precedential status:** Published - **Opinion:** Concurring in part by Siler - **Judges:** Merritt, Siler, Clay - **Cited by:** 116 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/9632130 ## How later opinions describe it (automated extraction) - concluding procedural default did not apply, despite untimely Ohio Rule of Appellate Procedure 26(B) motion, because "an Ohio court’s finding that there is ‘no genuine issue,’ which denies the Murnahan [Rule 26(B) ] application at stage one of the two stage procedure, is a det… - finding where a capital defendant “had everything *237 to gain and nothing to lose” by introducing certain mitigating evidence during the penalty phase, there was “no rational trial strategy that would justify the failure of [ ] counsel to investigate and present [such] eviden… - stating that "empirical evidence on eyewitness identification undercuts the hypothesis that there is a strong correlation between certainty and accuracy,” but further stating, "As a matter of law, we acknowledge that the witness’ degree of certainty is a relevant factor to con… - finding ineffective assistance of counsel when counsel failed to investigate evidence of the defendant’s abusive and violent childhood, evidence that the defendant suffered intense grief over the loss of his family, and evidence that the defendant suffered from a mental defect - stating only that courts are “more likely to find an identification reliable where a witness ‘was able to view the assailant with a heightened degree of attention, as compared with disinterested bystanders or casual observers’ ” ## Opinion text SILER, Circuit Judge, concurring and dissenting. I concur in the conclusions by the majority that there were no errors in the convictions in this case. However, I respectfully dissent from the conclusion that Haliym was denied the effective assistance of counsel during the mitigation phase of sentencing. Thus, I would affirm the district court’s denial of the writ in full. I agree with the district court and with the majority that the issue of ineffective assistance of counsel in the mitigation phase has been preserved for habeas review, although the Ohio courts in post-conviction proceedings under O.R.C. § 2953.21 found that this claim was barred by res judicata, because it could have been raised on direct appeal. Therefore, as the district court correctly determined, because the post-conviction courts’ rulings were based upon res judicata, we are unable to determine how those courts would have ruled on the merits. Thus, we “conduct an independent review of federal law to determine if the state court either contravened or unreasonably applied clearly established federal law.” Thompson v. Bell, 315 F.3d 566, 586 (6th Cir.2003) (quoting Schoenberger v. Russell, 290 F.3d 831, 835 (6th Cir.2002)). As the majority states, the criteria for ineffective assistance of counsel comes from Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Under that case and its progeny, a habeas petitioner must show that counsel’s performance was deficient and, second, that such performance prejudiced the defense. In order to show prejudice, an error must be such that there is “a reasonable probability that ... the result of the proceeding would have been different.” Id. at 694 , 104 S.Ct. 2052 . As the majority recounts, the mitigation evidence consisted of three witnesses and several reports plus the unsworn statement by Haliym. These witnesses covered all aspects of Haliym’s life. First, his employer, Mr. Heiseler, described Haliym as a dedicated employee who was even promoted to assistant foreman and testified that no disciplinary actions had been taken against him. Haliym also called his grandmother, Martha Frazier, who related a lot of Haliym’s family background, including the fact that Haliym’s father died from an overdose of heroin and his mother had died from asthma. She also told of the shooting death of Haliym’s brother and that Haliym was a good father and was happy with his wife. Finally, the defense called Dr. Bertschinger, a psychiatrist. He testified that Haliym had an antisocial personality disorder and was a malingerer. He also said that Haliym had made attempts on his own life. He further stated that Haliym had suffered from depression but was not then suffering from a mental disease or defect and that his intelligence was in the average range. Although the majority opinion reports that Dr. Bert-schinger had spent only 1.5 hours with Haliym at the time of his diagnosis, Dr. Bertschinger did not say that he needed more time to diagnose Haliym for the case. *721 Significantly, no one questions the qualifications of Dr. Bertschinger. During Haliym’s unsworn statement, he related his tragic upbringing and past misfortunes, including the death of his family members and that he had been incarcerated. He also expressed deep remorse and regret for his involvement in the violence and deaths that occurred in the incident involving the homicides on trial. The defense also provided reports from the juvenile court, the Cuyahoga County Jail, and the Ohio State Parole Authority. Admittedly, Haliym presented in his post-conviction proceedings the testimony of an expert, Dr. Smalldon. Nevertheless, Dr. Smalldon is no better qualified than Dr. Bertschinger. Dr. Smalldon is a psychologist, whereas Dr. Bertschinger is a psychiatrist. Dr. Smalldon concluded that the test that he conducted “points strongly to a mild to moderate degree of functional brain impairment,” but he did not say that it was to any degree of medical certainty. He concluded that Dr. Bertschinger and others earlier should have realized that Haliym might suffer from brain damage. Dr. Smalldon concluded that Haliym “has a mild to moderate degree of functional brain impairment.” However, he did not say that Haliym was retarded, nor did he say that Haliym was suffering from a psychosis. He also said that Haliym had depression and that he had a history of alcohol and substance abuse, plus a personality disorder with paranoid and anti-social features, which was substantially the same diagnosis made by Dr. Bertschinger. The other evidence presented at the post-conviction proceedings was an affidavit from James Crates, a mitigation specialist. Obviously, he provided some material which had not been brought out at trial concerning Haliym’s family background, including a claim by Haliym’s sister, Valerie, that Haliym and his brother were beaten by their father with a baseball bat. Other family members recalled that Haliym and his mother had been beaten by his father. However, Haliym himself contradicted that in his own unsworn statement, when he said he was raised by “two of the most beautiful parents you could ever meet.” Haliym even denied to Dr. Smalldon that he was ever abused. Although there might be some evidence of abuse, as the district court determined, it is uncertain whether the father “physically abused Haliym spontaneously or whether he used corporal punishment as a means of discipline.” I disagree with the majority’s conclusion that this case is similar to Hamblin v. Mitchell, 354 F.3d 482 (6th Cir.2003). There, trial counsel presented no mitigating evidence and the only mitigation raised was a plea of mercy. Here, counsel did much more. Likewise, in Harries v. Bell, 417 F.3d 631 (6th Cir.2005), counsel did not seek the assistance of a mental health expert, even though counsel had been alerted by Harries’s mother that Harries suffered from a mental illness. Instead, this case is closer to the factual situation in Smith v. Mitchell, 348 F.3d 177 (6th Cir.2003), in which we concluded that trial counsel were not constitutionally ineffective during mitigation. Essentially, the issues brought up were similar to those in this case, claiming that the psychological evidence and the family history were not complete. As in this case, a significant amount of the alleged omitted mitigation in Smith was presented at trial. Like the district court, I would find that Haliym has not shown that trial counsel during mitigation were objectively unreasonable by failing to present other psychological evidence or to obtain the testimony of other family members. In addition, I would also find, as the district court did, that Haliym cannot establish that the testimony of these additional witnesses would *722 have impacted the outcome of the mitigation proceeding. See Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 . As we said in Smith, 348 F.3d at 206 : [O]ur role on habeas review is not to nitpick gratuitously counsel’s performance. After all, the constitutional right at issue here is ultimately the right to a fair trial, not to perfect representation .... Rather, we are looking to see “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (citations omitted). It is rare to resolve a habeas corpus case where new counsel cannot find some evidence that might have been presented in mitigation either by an expert or by a family member, but that is not the test, as we said in Smith . Therefore, for the reasons stated, I would find that counsel were not ineffective during the mitigation phase of the trial, and I would affirm the decision of the district court in denying the writ of habeas corpus. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9632130. Public record. Not legal advice.