# Appendix — Jenkins v. Hutton, 138 S. Ct. 43 (2017) (No. 16-1116)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0736%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2017

## Text

FILED

16-1116 MAR 10 2017

OFFICE OF TIE wait |
| SuPReMe COURT U

No. 16-_
In the Supreme Court of the United States

CHARLOTTE JENKINS, Warden,
Petitioner,
v.
PERCY HUTTON,
Respondent.

EE ee

ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT

APPENDIX

MICHAEL DEWINE
Attorney General of Ohio
ERIC E. MURPHY*
State Solicitor

*Counsel of Record
HANNAH C. WILSON
Deputy Solicitor
KATHERINE E. MULLIN
Assistant Attorney General
30 E. Broad St., 17th Floor
Columbus, Ohio 143215
614-466-8980
eric.murphy@

ohioattorneygeneral.gov

Counsel for Petitioner
Charlotte Jenkins, Warden

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TABLE OF CONTENTS

Page
Appendix A: Order denying rehearing en
banc, Sixth Circuit Court of Appeals, Dec. 13,
ERE aT ty ah Ro ee RAE EE ET SER ae la
Appendix B: Opinion, Sixth Circuit Court of
BE Is HE TD rcccnscsciciveocnesianlusaamiacetsamenecisies 2a
Appendix C: Opinion, United States District
Court, Northern District of Ohio, June 7,
laa Sa aa ed einaicipnnieieanill 54a
Appendix D: Entry, Supreme Court of Ohio,
i ERE eer ne an re sce a apameseaes 217a
Appendix E: Opinion, Court of Appeals of
Ohio, Eighth District, Cuyahoga County,
ee IC snieinbimeneeanhaenbuainndohusdase dann 218a
Appendix F: Entry, Supreme Court of Ohio,
a a alsiaasin senna nanowire 226a
Appendix G: Opinion, Court of Appeals of
Ohio, Eighth District, Cuyahoga County,
ee I Ga cantschnddnneninntincicinentsindaiapentnimetenccus 227a
Appendix H: Opinion, Supreme Court of
Se I ia cetcaeeeinenbeinasonsains 238a

Appendix I: Journal Entry and Opinion,
Court of Appeals of Ohio, Eighth District,
Cuyahoga County, Mar. 20, 2000................2..:.665 268a

Appendix J: Opinion, Court of Appeals of
Ohio, Eighth District, Cuyahoga County,
rei IN it stctcdnpeanioencgpnanbesishaiedsitninmgnuipnssose susie 272a

Appendix K: Supplemental Journal Entry
and Appellate Review of Death Sentence,
Court of Appeals of Ohio, Eighth District,

Cuyahoga County, Jan. 17, 19911 ......................... 280a
Appendix L: Opinion, Supreme Court of
ee acai ake ie enh 282a

Appendix M: Journal Entry and Opinion,
Court of Appeals of Ohio, Eighth District,
Cuyahoga County, Apr. 28, 1988 ..............--......68. 317a

la

APPENDIX A

No. 13-3968

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PERCY HUTTON,
Petitioner-Appellant,

Vv.
BETTY MITCHELL, WARDEN,
Respondent-Appellee.

ORDER
Filed: December 13, 2016

BEFORE: MERRITT, ROGERS, and DONALD,
Circuit Judges.

The court received a petition for rehearing en
banc. The original panel has reviewed the petition
for rehearing and concludes that the issues raised in
the petition were fully considered upon the original
submission and decision of the case. The petition
then was circulated to the full court.” No judge has
requested a vote on the suggestion for rehearing en
banc.

Therefore, the petition is denied.
ENTERED BY ORDER OF THE COURT
/s/ Deb S. Clerk

* Judge Cook recused herself from participation in this ruling.

2a

APPENDIX B

839 F.3d 486
United States Court of Appeals,
Sixth Circuit.

Percy Hutton, Petitioner—Appellant,
Vv.
Betty Mitchell, Warden, Respondent—Appellee.

No. 13-3968
|
Argued: March 16, 2016
Decided and Filed: October 12, 2016

|
Rehearing En Banc Denied December 13, 2016°

*490 Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:05—cv—02391—Christopher A. Boyko, District
Judge.

Attorneys and Law Firms

ARGUED: Michael J. Benza, Chagrin Falls, Ohio,
for Appellant. *491 Katherine E. Mullin, OFFICE
OF THE OHIO ATTORNEY GENERAL, Cleveland,
Ohio, for Appellee. ON BRIEF: Michael J. Benza,
Chagrin Falls, Ohio, Alan C. Rossman, Jillian S.
Davis, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Cleveland, Ohio, for Appellant.

* Judge Cook recused herself from participation in this ruling.

3a

Katherine E. Mullin, Charles L. Wille, OFFICE OF
THE OHIO ATTORNEY GENERAL, Cleveland,

Ohio, for Appellee.

BEFORE: MERRITT, ROGERS, and DONALD,
Circuit Judges.

DONALD, J., delivered the opinion of the court in
which MERRITT, J., joined, and ROGERS, J., joined
in part. MERRITT, J. (pp. 505—09), delivered a
separate concurring opinion. ROGERS, J. (pp. 505—
13), delivered a separate opinion dissenting in part.

OPINION

BERNICE BOUIE DONALD, Circuit Judge.

Percy Hutton, an Ohio death row inmate, appeals
the United States District Court for the Northern
District of Ohio’s denial of his 28 U.S.C. § 2254
habeas petition. Hutton was convicted and
sentenced to death for murdering Derek “Ricky”
Mitchell and attempting to kill Samuel Simmons, Jr.
on September 16, 1985.

In his habeas petition, Hutton asserted thirteen
grounds for relief. Of the thirteen claims, six were
certified for appeal. One claim gives this Court the
most pause, as it requires us to revisit Hoffner v.
Bradshaw, 622 F.3d 487 (6th Cir. 2010), and again
question whether a state court’s independent review
of a death sentence during sentencing can cure any
omission in a jury instruction. For the reasons that
follow, we REVERSE the district court’s decision in
part, CONDITIONALLY GRANT Hutton’s habeas
petition, and REMAND this case to the district court

4a

with instructions to order Hutton’s release from
custody unless the state grants a new sentencing
hearing within 180 days from the date that this
Court issues the mandate.

I,
A. Factual Background

In the last state adjudication of Hutton’s habeas
petition claims, the Ohio Supreme Court made the
following findings of fact as to what likely unfolded
on the days the crimes for which Hutton was
convicted were committed:

{{ 1} In 1986, a jury found that Appellant,
Percy “June” Hutton, murdered Derek “Ricky”
Mitchell and attempted to kill Samuel
Simmons Jr. on September 16, 1985. Hutton
was convicted of aggravated murder with two
death specifications. After a penalty hearing,
the trial court sentenced Hutton to death.

{{ 2} Hutton had once been a close friend of
Mitchell and Simmons. However, Hutton
became angry with the two men because he
believed that they had stolen from him. On
Friday, September 13, or Saturday, September
14, 1985, outside the house where Samuel
Simmons Jr., then lived, Hutton confronted
Simmons over the theft of a sewing machine
belonging to Hutton.

{{ 3} Claiming that he had seen Mitchell
trying to sell the machine, Hutton demanded
its immediate return. Simmons suggested
that Hutton talk to Mitchell. During this
conversation, Mitchell arrived. He and Hutton

5a

entered the residence and went upstairs
together. When they returned, according to
Simmons, Hutton said that “it wasn’t what he
was looking for and if he found out we had
anything to do with what was missing or
stolen he was going to kill us.” Hutton also
told Mitchell, “m *492 tired with you
f* * *ing with me and stuff like that.”

{¥ 4} Around midnight on Monday, September
16, 1985, Hutton drove to Simmons’s house in
a gray Chrysler Cordoba, accompanied by
Bruce Laster, whose sister was engaged to
Hutton. Hutton asked Simmons to come with
him and help him work on a car. When
Simmons got into Hutton’s car, he noticed a
.22-caliber rifle lying on the back seat.

{4 5} Hutton drove to Mitchell’s house, stating
that he wanted to talk to Simmons and
Mitchell. When they arrived, Simmons went
in and brought Mitchell outside, telling him
that “June wanted to talk to him.” Hutton
then confronted Mitchell, demanding the
return of his sewing machine and accusing
Mitchell of stealing some tires from Hutton’s
backyard. Hutton said that he had hidden
$750 in the sewing machine.

{| 6} Mitchell denied taking the machine.
However, Hutton insisted that Mitchell had
tried to sell it to a Mr. Evans. Hutton
demanded that Mitchell come with him to
Evans's house to settle the issue. Hutton
threatened to “f* * * [Mitchell] up” if Evans
confirmed Mitchell's guilt.

6a

{4 7} Mitchell and Simmons got into the car.
Before pulling away from the curb, Hutton
pointed the rifle into Simmons’s side and said:
“I don’t appreciate you all breaking in my
sister’s house.”

{{ 8} Instead of going to Evans’s house,
Hutton drove to a parking lot behind an RTA
bus facility. Hutton got out of the car and
ordered Mitchell to get out as well. Hutton
and Mitchell then walked a short distance
from the car. Simmons could not hear their
conversation, but he saw Hutton put a pistol
against Mitchell’s head.

{{ 9} Hutton and Mitchell returned to the car.
With Mitchell giving directions, Hutton drove
to an area known as “the Projects.” Hutton
and Mitchell went into a building and emerged
after a few minutes with a white sewing-
machine case.

{{ 10} Hutton drove to his mother’s house,
took the case inside, and returned to the car.
He then drove to the next street and pulled
into an alley where a Cadillac El Dorado was
parked. Hutton told Simmons that the El
Dorado was the car he wanted to work on.
Simmons got out of Hutton’s car. Hutton then
moved his car to the other end of the street.
Leaving Laster and Mitchell in the car, he
walked back to the alley, where Simmons was
waiting.

{{ 11} Hutton broke into the El Dorado with a
screwdriver. When Simmons got inside,
Hutton opened the hood and told him to try

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starting the engine. Hutton then walked back
to Simmons, shot him twice in the back of the
head, and ran up the alley.

{{ 12} Unable to move at first, lying half in
and half out of the car, Simmons cried for help.
He managed to get up and Stagger away in
search of assistance. Simmons went first to
the nearby home of Hutton’s mother, then to
Mary Etta Pollard’s house next door. He
banged on Pollard’s front door and cried for
help. Then he heard Hutton’s car coming out
of the nearby alley. He ran into Pollard’s back
yard and pounded on the back door, shouting
that he had been shot.

{§ 13} Hutton drove up and stopped in front of
Pollard’s house. He urged Simmons to “come
here” or “come from back there.” Hutton
noticed that Pollard’s son[, Allen Pollard,] was
looking out from his front door and told him to
close the door. Simmons begged Hutton to
take him to the hospital. Hutton said, *493
“Just shut up and get in the car, and
Simmons obeyed. Mitchell and Bruce Laster
were in the car with Hutton.

{f 14} Telling Mitchell that some unknown
assailant had shot Simmons, Hutton drove to
St. Luke’s Hospital. Simmons asked Mitchell
to go inside with him, but Mitchell said, “No.
We [are] going to get the mother-f* * *er that
did this to you.”

{{ 15} At 2:30 a.m., Mitchell, Hutton, and
Laster returned to Mitchell’s home. They
woke Mitchell’s girlfriend, Eileen Sweeney,

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and took her to the hospital, where they
dropped her off. Sweeney went into the
hospital to visit Simmons. Telling her that
Hutton had shot him, Simmons sent her to
warn Mitchell to get out of the car. She went
outside, but the car was gone.

{{ 16} Hospital security officer Paul Whitcomb
saw a Chrysler Cordoba drop Simmons off and
leave “in a hurry.” About half an hour later,
Whitcomb saw the same car drop off Sweeney.
After Sweeney went inside, Whitcomb saw the
same car parked across the street from the
hospital. He sent security officer Gary
Barnhard to get the license number. As
Barnhard drove past the car, he saw its two
occupants crouch down in an attempt at
concealment. Then the car left. A subsequent
check of the license number disclosed that the
gray Chrysler was registered to Hutton’s
fiancée, Celeste Laster.

{4 17} Hutton and Bruce Laster later returned
to the hospital without Mitchell. Sweeney was
still there. Hutton told her that Mitchell was
at home and offered to drive her back.
However, once he had Sweeney inside the car,
Hutton took her to a park instead. There,
Hutton and Sweeney got out of the car. Laster
then drove off, and Hutton proceeded to rape
Sweeney. During the rape, Hutton told
Sweeney that “Ricky wasn’t coming back.”
According to Sweeney, Hutton had in his
possession a small handgun with a white
handle and a silver-colored barrel.

9a

{| 18} When Laster returned with the car,
Sweeney saw Hutton remove two rifles from
the trunk and put them in the rear passenger
compartment. Hutton then drove Sweeney
home to the apartment she shared with
Mitchell.

{| 19} When they arrived, Mitchell was not
there. The door to the apartment had been
damaged and the apartment was in disarray.
Sweeney was too “scared and nervous” to
drive, so Hutton drove her to the home of
LaWanda Mitchell, the sister of Ricky
Mitchell. Hutton followed Sweeney into
LaWanda’s house. According to Sweeney,
Hutton told her that “Ricky [Mitchell] wasn’t
coming back,” and that “if [she] told, someone
would be looking for [her].”

{| 20} On Tuesday, September 17, Hutton
drove to Indianapolis to enroll in a course for
automotive mechanics at the Lincoln
Technical Institute.

{{ 21} On September 30, 1985, the body of
Derek Mitchell was found near an intersection
in Cleveland with a large tire lying on the
body. An autopsy disclosed that Mitchell had
been shot to death. Two .22-caliber long rifle
bullets were recovered from the body; a
firearms expert testified that these could have
been fired from either a rifle or a handgun.
The expert testified that the bullets that killed
Mitchell had the same class characteristics as
a bullet that had been removed from
Simmons’s head, but he could not tell whether

10a

all three had been fired from the same gun.
The murder weapon was never found.

{| 22} The defense presented evidence that
Mitchell was not killed on *494 September 16,
1985, but at some later time while Hutton was
in Indianapolis. Denise Richardson testified
that she spoke to Mitchell at 3:00 p.m. on
September 17, 1985, the day after the state
claims Mitchell was murdered. According to
Hutton, he was in Indianapolis at the time
Richardson spoke to Mitchell. Hutton claimed
that he stayed in Indianapolis until October 3,
except for two brief visits to Cleveland on
September 21 and 28. An employee of the
Indianapolis YMCA saw Hutton’ there
sometime after 4:00 p.m. on September 17.
The YMCA employee testified that Hutton had
paid rent for the period of September 17
through October 3.

{| 23} On October 4, 1985, Cleveland Police
Detective Robert Moore spoke to Hutton on
the telephone. Hutton agreed to return to
Cleveland and surrender to Moore at a
prearranged time and place. On October 5,
Hutton surrendered.

{{ 24} Hutton and Laster were jointly indicted
on two counts of aggravated murder for killing
Derek Mitchell. The first count charged that
they committed the murder with prior
calculation and design. [O].R.C. 2903.01(A).
The second charged them with murdering
Mitchell while committing, attempting, or
fleeing the commission or attempted

lla

commission of kidnapping. [O).R.C.
2903.01(B). Each murder count carried two
capital specifications: a course-of-conduct
specification, [O].R.C. 2929.04(A)(5), and a
felony-murder kidnapping specification,
[O].R.C. 2929.04(A)(7). Hutton and Laster
were also indicted for kidnapping Mitchell and
Simmons, and for the attempted murder of
Simmons. Each count carried a firearm

specification.

State v. Hutton, 100 Ohio St.3d 176, 797 N.E.2d 948,
952-55 (2003).

B. Procedural History

In 1986, an Ohio state jury convicted Hutton of
aggravated murder (prior calculation and design),
aggravated murder (felony-murder), two counts of
kidnapping, and attempted murder, with a firearm
specification attached to each count. Following the
jury's recommendation, the trial court sentenced

Hutton to death.

On direct appeal, the Court of Appeals for
Cuyahoga County found several trial errors and set
aside Hutton’s convictions and sentence, but the
Ohio Supreme Court reversed and remanded the
case to the Ohio Court of Appeals to conduct an
independent review .{ the appropriateness of the
death sentence. State v. Hutton, No. 51704, 1988 WL
39276, at *31 (Ohio Ct. App. Apr. 28, 1988), rev'd, 53
Ohio St.3d 36, 559 N.E.2d 432, 447—48 (1990). On
remand, the Court of Appeals determined that the
death sentence was appropriate. State v. Hutton, 72
Ohio App.3d 348, 594 N.E.2d 692, 695 (1991).

Hutton did not appeal that decision.

12a

In September 1996, Hutton filed a petition for
post-conviction relief in state trial court, but the
court denied him relief without an evidentiary
hearing. The Ohio Court of Appeals affirmed. State
v. Hutton, No. 76348, 2004 WL 1575248, at *3 (Ohio
Ct. App. July 15, 2004). The Ohio Supreme Court
declined further review. State v. Hutton, 104 Ohio
St.3d 1426, 819 N.E.2d 709 (2004) (table).

In October 2000, Hutton’s motion for delayed
appeal was granted. State v. Hutton, 90 Ohio St.3d
1441, 736 N.E.2d 903, 903 (2000) (table). In
February 2001, Hutton unsuccessfully filed a second
petition for post-conviction relief. State v. Hutton,
No. 80763, 2007 WL 2955663, at *3 (Ohio Ct. App.
Oct. 11, 2007). The Ohio Supreme Court again
declined further review. State v. Hutton, 117 Ohio
St.3d 1439, 883 N.E.2d 457, 457 (2008) (table).
Pursuant to *495 Ohio Rule of Appellate Procedure
26(B), Hutton applied to reopen his direct appeal,
contending ineffective assistance of appellate
counsel, but the Ohio Court of Appeals denied the
application. State v. Hutton, No. 51704, 2000 WL
301097, at *2 (Ohio Ct. App. Mar. 20, 2000), affd,
100 Ohio St.3d 176, 797 N.E.2d 948, 964 (2003).

C. Federal Habeas Procedural Facts

In December 2005, Hutton filed a petition for a
writ of habeas corpus in federal district court. In
June 2011, Hutton amended his petition, asserting
thirteen grounds for relief. Without conducting an
evidentiary hearing, the district court denied habeas
corpus relief but certified four of the thirteen claims
for appellate review. (R. 67.) This Court expanded
the certification to include two additional claims.

13a

Accordingly, we address each of Hutton’s claims in
turn.
Il.

We review de novo a district court’s denial of a
habeas petition, particularly the determinations
involving matters of law or mixed questions of law
and fact, and we review for clear error the factual
determinations. Gumm v. Mitchell, 775 F.3d 345,
359-60 (6th Cir. 2014). Hutton filed his habeas
petition in 2005; thus, it is subject to the
requirements of the Antiterrorism and Effective
Death Penalty Act of 1996 (“‘AEDPA”), which became
effective on April 24, 1996. See Keeling v. Warden,
673 F.3d 452, 458 (6th Cir. 2012).

Under AEDPA, a writ may not be granted unless
the state court’s 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

(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). A federal habeas court
may grant the writ under the “contrary to” clause “if
the state court arrives at a conclusion opposite to
that reathed by the Supreme Court on a question of
law, or if the state court decides a case differently
than the Supreme Court on a set of materially
indistinguishable facts.” Van Tran v. Colson, 764
F.3d 594, 604 (6th Cir. 2014) (citing Brown v. Paytor,

l4a

544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334
(2005)). The habeas petitioner has the burden of
rebutting, by clear and convincing evidence, the
presumption that the state court’s factual findings
were correct. /d. (citing 28 U.S.C. § 2254(e)(1)).

A.

First, we turn to Hutton’s claim that the trial
court failed to instruct the jury on the list of
“aggravating circumstances.” The Ohio statutory
sentencing scheme for the death penalty requires
more than a finding of guilt; it also requires the jury
to make a finding of aggravating circumstances. The
jury must then conclude that the aggravating
circumstances outweigh the mitigating
circumstances to impose the death penalty. O.R.C.
§ 2929.04(A).

In Hutton’s case, while the jury instructions listed
the seven mitigating circumstances, they neglected
to define or list the “aggravating circumstances.”!

! The full text of the jury instructions is as follows:

The COURT: Ladies and gentlemen, you have now
heard all the evidence and the arguments of counsel,
and you will now decide whether you will recommend to
the Court that the sentence of death shall be imposed
upon the Defendant, and if not whether you will
recommend that the Defendant be sentenced to life
imprisonment with a parole eligibility after serving 20
full years of imprisonment, or to life imprisonment with
parole eligibility after serving 30 full years of
imprisonment.

You will consider all the evidence, arguments,
statements of the Defendant, pre-sentence
investigation, mental examination report, and all other

information and reports which are relevant to the
nature and circumstances of any mitigating factors,
including but not limited to the nature and background
of the Defendant, and all of the following:

1. Whether the victim of the offense induced or
facilitated.

2. Whether it is unlikely that the offense would have
been committed but for the fact that the offender was
under duress, coercion or strong provocation.

3. Whether at the time of the committing of the offense
the Defendant, because of a mental disease or defect,
lacked substantial capacity to appreciate the criminality
of his conduct, or to conform his conduct to the
requirement. of the law.

4. The youth of the Defendant.

5. The Defendant’s lack of significant history of prior
criminal convictions and delinquency adjudications.

6. If the Defendant was a participant in the offense, but
not the principal offender, the degree of the Defendant's
participation in the offense and the degree of the
Defendant's participation in the acts that led to the
death of the victim.

7. Any other factors that are relevant to the issue of
whether the Defendant should be sentenced to death.

The prosecution has the burden to prove beyond a
reasonable doubt that the aggravating circumstances, of
which the Defendant was found guilty, outweigh the
factors in mitigation of imposing the death sentence.

To outweigh means to weigh more than, to be more
important than.

The existence of mitigating factors does not preclude or
prevent the death sentence. If the aggravating
circumstances outweigh the mitigating factors.

l6a

Thus, there was no indication in the jury instructions
*496 which aggravating circumstances the jury could
review to make a recommendation. (Pet.’s Br. 46.)
However, Hutton’s trial counsel never objected to the
instruction, failing to preserve the claim on appeal.

In fact, the error was first discovered on review by
the Ohio Supreme Court, during which the majority
acknowledged the error in a footnote and Judge
Brown based his partial dissent on the error.”

You are, of course, mindful of the definition given you
earlier by the Court of the phrase reasonable doubt, and
I will share that with you again. Reasonable doubt is
present when after you have carefully considered and
compared all the evidence, you cannot say you are
firmly convinced of the truth of the charges.

Reasonable doubt is a doubt based on reason and
common sense. Reasonable doubt is not mere possible
doubt because everything relating to human affairs or
depending on moral judgment is open to some possible
or imaginary doubt. Proof beyond a reasonable doubt is
proof of such character that an ordinary person would
be willing to rely and act upon it in the most important
of his own affairs.

You should recommend the sentence of death if you
unanimously, that is all twelve of you, find proof beyond
a reasonable doubt that the aggravating circumstances
outweigh the mitigating factors.

If you do not so find, you should unanimously
recommend either life sentence with parole eligibility
after serving 20 years of imprisonment or life sentence
with parole eligibility after serving 30 years of
imprisonment.

2 “(Blecause the sentencing phase of the trial was marred by a
plain error in the jury instructions, | must respectfully dissent
from the remand for review of the death sentence.” State v.

17a

Hutton, 559 N.E.2d 432, 449 n.1 (1990) (“We observe
that the trial court did not instruct the jury in the
penalty phase as to what the aggravating
circumstances were.”). The Ohio Supreme Court
determined that Hutton had waived the claim since
Hutton failed to address it in his briefs.

*497 Asserting Gregg v. Georgia, Hutton claims
that the trial court violated his due process rights in
causing the jury to have “untrammeled discretion” to
sentence him. 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976) (finding that a defendant’s
Eighth Amendment rights are violated where the
jury is left with “untrammeled discretion” to impose
the death penalty). The district court likewise found
that the claim had been procedurally defaulted
because of Hutton’s failure to raise it on appeal. (R.
67, PageID 1704.) In the alternative, the district
court found that the claim was meritless because the
Ohio Court of Appeals cured any possible error
through its independent reweighing. (Jd. at 1704-
06.) In making this decision, the district court
largely relied upon our decision in Hoffner. (/d.) In
Hoffner, however, we relied on the Ohio Supreme
Court’s adjudication of this case. 622 F.3d at 506
(applying the reasoning in State v. Hution, 797
N.E.2d at 958-59 (2003), to the petitioner’s claim). If
we were to rely solely on the ruling in Hoffner, we
would be applying a circular analysis—i.e., we would
be finding that any state trial court error in Hutton’s
case was cured because the Ohio Supreme Court

Hutton, 53 Ohio St.3d 36, 559 N.E.2d 432, 449 (1990) (Brown,
J., dissenting in part.).

18a

found that the error was cured. This would abdicate
our role as judges to independently review the case
before us.

As to the procedural default issue, the Supreme
Court has made it explicitly clear that when a “state
prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims
is barred unless the prisoner can demonstrate cause
for the default and actual prejudice..., or
demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.”
Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct.
2546, 115 L.Ed.2d 640 (1991) (emphasis added).

In determining whether a federal claim has been
procedurally defaulted, we apply the test initially
laid out in Maupin v. Smith, 785 F.2d 135, 138 (6th
Cir. 1986). We first consider whether there is an
applicable state procedural rule with which the
petitioner failed to comply. /d. Second, we decide
whether the state courts actually enforced the state
procedural sanction. Jd. Third, we determine
whether the state procedural rule is an “adequate
and independent” state ground on which the state
can foreclose review of a federal constitutional claim.
Id. Fourth, the petitioner must demonstrate that
there was “cause” for him to not follow the
procedural rule and that he was actually prejudiced
by the alleged constitutional error. /d.

It is clear that Hutton defaulted this claim. In
Ohio, when a party fails to contemporaneously object
to an error, the error is deemed waived. Ohio R.
Crim. P. 52. Pursuant to Ohio’s contemporaneous

19a

objection rule, Ohio courts treat the failure to object
as a procedural default. Scott v. Mitchell, 209 F.3d
854, 866 (6th Cir. 2000). The United States Supreme
Court has specifically found that a default imposed
for failure to object contemporaneously is an
adequate and independent state ground barring
federal habeas review absent a showing of cause and
prejudice. Jd. at 867 (citing Engle v. Isaac, 456 U.S.
107, 124-29, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)).
Consequently, because Hutton failed to object to the
omission in the jury instructions during trial, he
procedurally defaulted his claim.*

*498 Where a petitioner cannot demonstrate the
“cause and prejudice” necessary to overcome a
procedural default, a court may reach the merits of a
procedurally defaulted claim where review of the
claim is necessary to correct or avoid a “fundamental
miscarriage of justice.” See Murray v. Carrier, 477
U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)
(finding that where a constitutional violation likely
resulted in the miscarriage of justice, a federal court
may grant habeas relief even in the absence of a

3 It should be well noted that Ohio law allows review of an
unpreserved claim under the plain error standard. See State v.
Long, 53 Ohio St.2d 91, 372 N.E.2d 804, 806-07 (1978). The
basic inquiry in Ohio’s plain error analysis is whether the
defendant has been denied a “fair trial.” Scott, 209 F.3d at 866.
In determining that Hutton procedurally defaulted this claim,
the Ohio Supreme Court did not analyze the constitutional
challenge to the jury instructions on its merits, nor did it apply
plain-error review when it noted the absence of a
contemporaneous objection to the instruction. See Hutton, 797
N.E.2d at 959. Rather, the court merely ruled that Hutton’s
failure to object at trial operates as a procedural default.

20a

showing of cause to overcome a procedural default).
We first acknowledge, as the dissent points out, that
Hutton did not raise this claim in his opening brief
and it is, therefore, considered waived. As a general
rule, this Court will not consider arguments not
presented in a party’s opening brief. See United
States v. Johnson, 440 F.3d 832, 845—46 (6th Cir.
2006) (noting that “ ‘an appellant abandons all issues
not raised and argued in its initial brief on appeal.”’)
(citations omitted). However, because this rule is
procedural and not jurisdictional, the Court may
excuse a default if the interest of justice so requires.
See Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466,
88 L.Ed.2d 435 (1985); United States v. Lawrence,
735 F.3d 385, 430-31 (6th Cir. 2013).

The Supreme Court has extended fundamental
miscarriage of justice in capital cases to mean actual
innocence of the death penalty. See Sawyer v.
Whitley, 505 U.S. 333, 347, 112 S.Ct. 2514, 120
L.Ed.2d 269 (1992). “[T]o show ‘actual innocence’ one
must show by clear and convincing evidence that, but
for the constitutional error, no reasonable jury would
have found the petitioner ecligible for the death
penalty under the applicable state law.” Id. at 336,
112 S.Ct. 2514. This “actual innocence” standard
must focus on the elements that render a defendant
eligible for the death penalty. Jd. at 347, 112 S.Ct.
2514. Despite the important interests served by
state procedural rules, we cannot permit finality
alone to provide a sufficient reason for federal courts
to compromise their protection of constitutional
rights under § 2254. See Reed v. Ross, 468 U.S. 1, 15,
104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). In short,
barring all procedurally defaulted claims is not the

2la

standard. See Scott, 209 F.3d at 866. Relevant here,
a criminal defendant has a right to expect that the
trial court will give complete and correct jury
instructions. State v. Williford, 49 Ohio St.3d 247,
551 N.E.2d 1279, 1283 (1990). If there was a
fundamental miscarriage of justice in imposing a
death sentence, we may find that the petitioner
overcame the procedural default.

Pursuant to O.R.C. § 2929.05(A), for death
sentences, the Ohio Court of Appeals may
independently determine whether (1) the record
supports the jury’s finding of the existence of
aggravating circumstances; (2) the aggravating
circumstances outweigh any mitigating
circumstances; (3) trial court properly weighed the
aggravating circumstances against the mitigating
circumstances; (4) the sentence of death is not
disproportionate to the penalty imposed in similar
cases; and (5) the sentence of death is consequently
appropriate.

Most relevant here is that, at the time the Ohio
Court of Appeals independently reweighed the
factors, the jury had not *499 made the necessary
finding of the existence of aggravating
circumstances. Thus, the jury could not have
determined that the aggravating circumstances
outweighed the mitigating circumstances beyond a
reasonable doubt without knowing what the
aggravating circumstances were. (Pet.’s Br. 43-44.)
Without this finding, a death sentence cannot stand.
Since the jury did not make the necessary
aggravating circumstances finding, Hutton argues
that the Ohio Court of Appeals made its own finding
of the existence of aggravating circumstances, which

22a

the Supreme Court has repeatedly ruled as
unconstitutional. (/d.)

In Hurst v. Florida, U.S. , 136 S.Ct. 616,
619, 193 L.Ed.2d 504 (2016), the Supreme Court
reiterated that “[t]he Sixth Amendment requires a
jury, not a judge, to find each fact necessary to
impose a sentence of death.” Relying on Ring ov.
Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d
556 (2002), the Supreme Court rejected the
sentencing scheme in Hurst at issue because the
court—and not the jury—ultimately made _ the
“critical findings” about both “the existence and
weight of aggravating circumstances” necessary to
impose a death sentence. Hurst, 136 S.Ct. at 621.

In Ring, the Supreme Court rejected Arizona’s
capital sentencing scheme because the _ statute
allowed a judge to find the facts necessary to
sentence a defendant to death. Under state law,
Ring could not be sentenced to death without the
finding of at least one aggravating circumstance. 7d.
at 592, 122 S.Ct. 2428. The Supreme Court
concluded that a state court judge’s finding of an
aggravating circumstance exposed Ring to greater
punishment than that authorized by the jury’s guilty
verdict. Jd. at 597, 122 S.Ct. 2428. Had the judge
not engaged in any fact finding, Ring would have
received a life sentence. Jd. Thus, the Court ruled
that Ring’s death sentence violated his right to have
a jury find the facts necessary to impose punishment.
Id. In large part, this was because the Court found
that judicial fact finding for aggravating
circumstances under certain state sentencing
schemes runs afoul of the rule in Apprendi, which
states that any fact that “expose[s] the defendant to

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a greater punishment than that authorized by the
jury's guilty verdict” is an “element” that must be
submitted to a jury. Apprendi v. New Jersey, 530
U.S. 466, 494, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000).

To be clear, the Supreme Court has also held that
where a_ state appellate court conducts an
independent review of the record, reweighs the
mitigating and aggravating circumstances, and
concludes that the death penalty was warranted, the
Federal Constitution does not prevent a court from
upholding that death sentence even though it was
based in part on an invalid or improperly defined
aggravating circumstance. Clemons v. Mississippi,
494 U.S. 738, 741, 750, 110 S.Ct. 1441, 108 L.Ed.2d
725 (1990). In fact, we have held that
“[cJonsideration of a non-statutory aggravating
circumstance, even if contrary to state law. does not
violate the Constitution.” Smith v. Mitchell, 348
F.3d 177, 210 (6th Cir. 2003) (citing Barclay, 463
U.S. at 956-58, 103 S.Ct. 3418).

However, Clemons and this case are significantly
distinguishable in two ways. First, in Clemons, only
one or two invalidated aggravating circumstances
were at issue, which means that the jury in Clemons
was still given a list of valid aggravating
circumstances to guide its decision. 494 U.S. at 741,
110 S.Ct. 1441. Even though the finding turned out
to be an erroneous one, the jury in Clemons was
given guidance in making a finding as to what
aggravating circumstances existed or applied to the
defendant's case. Id. Second, *500 in reweighing the
circumstances in Clemons, the state appellate court
knew what the jury considered’ regarding

24a

aggravating circumstances before reweighing the
circumstances found by the jury. Reweighing in
Clemons only required eliminating one or two
aggravating circumstances but, arguably, the finding
that the aggravating circumstances outweighed the
mitigating circumstances was still largely valid
because it was based on the jury’s consideration of
valid circumstances. /d. at 744, 110 S.Ct. 1441.

By contrast, here, the jury was not given an
improperly defined aggravated circumstance.
Instead, the court gave the jury no guidance as to
what to consider as aggravating circumstances.
Second, the jury was precluded from making the
necessary findings of aggravating circumstances in
the first place. There is nothing in the record that
indicates that the jury’s finding that the aggravating
circumstances outweighed the mitigating ones was
actually based on a review of any valid aggravating
circumstances.

Thus, the analysis of the Gregg and Ring courts
more aptly apply to Hutton’s sentence. MHutton’s
death sentence was imposed by a judge’s factual
finding—not the jury’s. Evidently, not wishing to
permit appellate reweighing for every trial court’s
error, the Clemons Court specified that in “some
situations,” where there are “peculiarities” that make
appellate reweighing speculative or impossible,
reweighing may not cure the error. /d. at 754, 110
S.Ct. 1441.

Because a death sentence in Ohio cannot be
imposed without an aggravating-circumstances
finding, we need not consider at length whether a
fundamental miscarriage of justice resulted from the

25a

failure to define “aggravating circumstances” in the
jury instructions. It clearly did, as the jury, without
proper instructions, could not have made a finding
that aggravating circumstances existed; thus, the
harshest sentence Hutton could possibly have
received without that instruction was life—not
death. To find otherwise renders due process rights
illusory. Thus, Hutton demonstrates a fundamental
miscarriage of justice sufficient to overcome the
procedural! default of his first claim.

As previously mentioned, under AEDPA, the
Court is required to defer to the state court’s merits
determination of a claim. See 28 U.S.C. § 2254(d).
However, in the absence of a_ state-court
determination on the merits of a claim, AEDPA’s
deferential standard has no application, and the
Court reviews the claim de novo. Henley v. Bell, 487
F.3d 379, 390 (6th Cir. 2007) (citing Linscott v. Rose,
436 F.3d 587, 592 (6th Cir. 2006)). The Supreme
Court’s longstanding precedent in Apprendi, Ring,
and Gregg establish that Hutton’s constitutional
rights were violated. Therefore, we are compelled by
precedent to find that the Ohio Court of Appeals’
findings of aggravating circumstances were not valid
to permit a death sentence to stand.

B.

Hutton’s second assignment of error is that
Hutton’s appellate counsel was ineffective for two
reasons: first, counsel did not raise the claim based
on the trial court’s failure to define “aggravating
circumstances” in the jury instructions, and second,
counsel did not argue that trial counsel was
ineffective for failing to object to the erroneous jury -

26a

instructions. Because the Ohio Supreme Court
adjudicated this claim on the merits, see Hutton, 797
N.E.2d at 958-59, AEDPA applies to this claim.

Allegations of ineffective assistance of counsel are
considered in two *501 parts. First, we must
determine whether the challenged act or omission
fell below an objective standard of reasonableness.
Strickland v. Washington, 466 U.S. 668, 687-88, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, we must
decide whether the defendant was prejudiced, such
that there is a reasonable probability that, but for
counsel's errors, the sentence would have been

different. Jd.

While we ordinarily presume that counsel’s
conduct falls within the range of reasonable
professional assistance, id. at 691, 104 S.Ct. 2052, we
do not require appellate counsel to raise every
possible issue in order to render constitutionally
effective assistance, see Jones v. Barnes, 463 U.S.
745, 750-53, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
Generally, only when omitted arguments are clearly
stronger than those presented, will the presumption
of effective assistance of counsel be overcome. Smith
v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145

L.Ed.2d 756 (2000).

Although the district court focused on the second
Strickland prong, the court does not need to reach
that issue because counsel’s performance was likely
not deficient. See Strickland, 466 U.S. at 697, 104
S.Ct. 2052 (finding that a court need not address
both components of the inquiry if the defendant
makes an insufficient showing on one). We cannot
conclude here that the two omitted arguments were

27a

“clearly stronger” than the other claims his counsel
presented on direct appeal, five for which the Ohio
Court of Appeals granted relief. Given the vacated
sentence Hutton’s counsel obtained for his client on
direct appeal, Hutton cannot reasonably prove that
his appellate counsel was deficient. Therefore, this

claim fails.

C.

Under the third assignment of error, Hutton
contends that the trial court's admission of Eileen
Sweeney's testimony that he raped her denied him
due process. (Pet.’s Br. 51-62.) Hutton argues that
Sweeney's testimony was improper because Hutton
had not been charged with rape and that the
allegation bore no probative value to the murder and
kidnapping charges. (R. 16-25, PageID 6528~—29.)
When Hutton raised this claim on direct appeal, the
Ohio Court of Appeals granted relief, finding that
“the jury received this damaging testimony over
Appellant’s objection and improperly considered it as
further proof of the Appellant's commission of the
aggravated and attempted murders and
kidnappings.” Hutton, 1988 WL 39276, at *22. The
Ohio Supreme Court acknowledged the erroneous
admission but reversed the court of appeals, deeming
the error harmless because overwhelmingly strong
evidence supported the murder and kidnapping
convictions. Hutton, 559 N.E.2d at 440. Hutton also
raised the claim on state post-conviction review and
was subsequently barred by res judicata. The
district court likewise denied Hutton habeas relief,
stating that “Hutton has not explained how the Ohio
Supreme Court ‘used an improper standard to
determine the error to be harmless’ ” as “it examined

28a

the ‘other admissible evidence, standing alone, and
found it to ‘constitute [| ] overwhelming proof of
guilt.” (R. 67, Page ID 1703).

We agree. We review the admission for harmless
error, assessing the alleged prejudicial impact under
the “substantial and injurious effect” standard as
established in Brecht v. Abrahamson, 507 U.S. 619,
623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). To
warrant habeas relief, a questionable evidentiary
admission must not only be erroneous, but it must
also be *502 so infirm that it rendered the trial
fundamentally unfair, such that it had influence in
determining the jury’s verdict. See Coe v. Bell, 161
F.3d 320, 329 (6th Cir. 1998); see also McCarley v.
Kelly, 801 F.3d 652, 665 (6th Cir. 2015). The Brecht
test subsumes the limitations imposed by AEDPA.
McCarley, 801 F.3d at 665 (citing Davis v. Ayala, ——
USS. , 1385 S.Ct. 2187, 2199, 192 L.Ed.2d 323
(2015)).

Hutton cannot show a substani.al and injurious
effect. In an effort to minimize the prejudicial
impact of the testimony, the court gave the jury a
limiting instruction admonishing the jury to refrain
from considering the testimony “in any way, shape or
form with respect to the determination of guilt or
innocence” with regard to Hutton’s charges. (R. 16—
25, PageID 6531.) Hutton has not indicated how the
state’s adjudication of the claim was contrary to
clearly established law. Notwithstanding the rape
testimony, the record still contains strong
circumstantial evidence that connects Hutton to the
crime, such that the erroneous admission likely did
not determine the jury’s verdict. Cf. Ford v. Curtis,
277 F.3d 806, 810—11 (6th Cir. 2002). Accordingly,

29a

the state court’s disposition of the claim was neither
unreasonable nor contrary to precedent. Hutton is
not entitled to habeas relief on this ground.

D.

In Hutton’s fourth assignment of error, Hutton
contends that the prosecution violated Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d
215 (1963), by withholding statements made to the
police by Bernard Holloway and Kim Lampkin.
(Pet.’s Br. 62.) However, Hutton raised this claim for
the first time in his petition for post-conviction
review. (R. 60, Page ID 1339.) The district court
accordingly determined that the claim related to
Holloway and Lampkin was procedurally defaulted
because it was not raised in the state courts. (R. 67,
Page ID 1661.) Notwithstanding the default, the
district court still reviewed the merits of the claim
and found that Hutton failed to meet the first two
prongs of the Brady test. (R. 67, Page ID 1681-82.)

To overcome the default, Hutton had to establish
cause and prejudice, which can be established by
merely establishing the merits of his Brady claim.
See Strickler v. Greene, 527 U.S. 263, 282, 119 S.Ct.
1936, 144 L.Ed.2d 286 (1999) (“In this case, cause
and prejudice parallel two of the three components of
the alleged Brady violation itself.”) To do so, Hutton
must show that “(1) the evidence was favorable to
him, (2) the prosecutor withheld the evidence, and (3)
he suffered prejudice, which means that the
suppressed evidence is material either to his
conviction or his sentence.” Jones v. Bagley, 696 F.3d
475, 486 (6th Cir. 2012) (citing Strickler, 527 U.S. at
280-82, 119 S.Ct. 1936). Favorable evidence can

30a

only be “material” under Brady if a reasonable
probability exists that, had the evidence been
disclosed, the result of the proceeding would have
been different. Henness v. Bagley, 644 F.3d 308, 324
(6th Cir. 2011) (quoting Cone v. Bell, 556 U.S. 449,
469-70, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009)).

i. Holloway’s Statement

Holloway testified at trial that after Mitchell
went missing, Hutton told Holloway that Mitchell
and Simmons had been robbing numbers houses. In
a withheld police report, Holloway mentioned only
Simmons robbing the numbers houses.

Hutton contends that MHolloway’s’ withheld
statement was material because Holloway “clearly
implied in his trial testimony *503 that Mr. Hutton
told him about Mitchell and Simmons robbing the
numbers house as a ruse to point suspicion for the
murder towards the numbers people and away from
himself.” (Pet.’s Br. 64.) Hutton also argues that
Holloway’s withheld statement was a_ prior
inconsistent statement that he could have used to
impeach Holloway. However, neither statement
would have “resulted in a markedly weaker case for
the prosecution and a markedly stronger one for the
defense.” Kyles v. Whitley, 514 U.S. 419, 441, 115
S.Ct. 1555, 131 L.Ed.2d 490 (1995). Holloway’s
statements made to police did not corroborate
anything materially different from the testimony
offered by Simmons, Jr. and Hutton, and the
circumstantial evidence of the case. The record
reveals that Holloway, in his testimony, primarily
stated details about Hutton’s visit to Holloway and
Simmons’ apartment, and Hutton’s communication

3la

with Mitchell and Simmons, Jr. about the sewing
machine, a matter about which Holloway knew little.

Further, even if cause was established by
Holloway’s two inconsistent statements as to who
Hutton said was involved in the alleged robbery of a
“numbers house,” Hutton still cannot show how he
was prejudiced. Holloway testified on direct
examination that he had been convicted of a “[s]tate
drug law violation.” Consequently, credibility may
have been an issue for him. See Byrd v. Collins, 209
F.3d 486, 502 (6th Cir. 2000) (identifying a criminal
conviction resulting in incarceration for more than
one year as impeachment evidence); Ohio Evid. R.
609(A). Moreover, to the extent that Holloway’s
testimony corroborated Simmons, Jr.’s testimony,
that corroboration was limited to testimony about
when Hutton visited Holloway’s apartment before
the shooting of Simmons, which Hutton
acknowledged in his own testimony. Hutton cannot
demonstrate that a different outcome would have
resulted had the prosecution disclosed Holloway’s
statement to the police.

ii. Lampkin’s Statement

At trial, Lampkin testified that she knew Hutton
and that after Simmons was shot, she became scared
of Hutton and moved away. In a police statement
that the prosecution never gave to Hutton, however,
Lampkin said that she did not know Hutton.

Hutton argues that Lampkin’s’ withheld
statement was important for impeachment purposes
because in her testimony, she implied that she was
afraid of Mr. Hutton. However, this material would
not have made his case markedly stronger. Any

32a

potential impeachment of Lampkin would not have
produced a different result. Therefore, the claim
fails.

E.

Under Hutton’s fifth assignment of error, Hutton
contends that trial counsel was ineffective for failing
to investigate and present available mitigation
evidence. Specifically, he claims that his trial
counsel was constitutionally ineffective during the
guilt phase of the trial for failing to adequately
consider and evaluate mitigating facts concerning (1)
Hutton’s neighbor, Allen Pollard; (2) Simmons, Sr.’s
encounter with three men who were looking for
Simmons, Jr. on the night of the shooting; (3) the
likelihood of Simmons, Jr. owing money to a drug
dealer at the time of the shooting due to his drug
usage; and (4) information that the sewing machine
belonged to Sharon Booker, and not Hutton’s sister.
He contends that further investigation would have
changed the outcome of the trial.

Hutton raised the claim during the first state
post-conviction proceedings, but the *504 trial court
applied res judicata as a procedural bar, reasoning
that Hutton could have raised the claim on direct
appeal but did not and therefore defaulted the claim.
The trial court still reviewed the claim on its merits
and found that he did not sufficiently demonstrate
deficient performance under Strickland. The district
court, on federal habeas corpus review, likewise
imposed a procedural bar and found that the claim
did not entitle Hutton to habeas relief. (R. 67
PagelD 1637-40.)

33a

Under Ohio’s res judicata doctrine, a defendant
may not raise a claim in a post-conviction proceeding
that either could have been or actually was fully
litigated at trial or on direct appeal. Hanna v. Ishee,
694 F.3d 596, 614 (6th Cir. 2012). Ohio courts
permit an exception where the defendant can
establish an ineffective assistance of counsel claim
based on references to evidence that are outside the
record on direct appeal. Jd.

Therefore, as with Hutton’s other ineffective
assistance claim, to overcome the procedural bar,
Hutton must show deficient performance and
prejudice, and that the state court’s resolution of the
claim was unreasonable. za v. Mitchell, 766 F.3d
466, 487 (6th Cir. 2014). First, concerning the
alleged failure to interview Allen Pollard, the district
court found that his testimony would have been
cumulative of that offered at trial by his mother,
Mary Pollard. (R. 67, PagelD 1651.) Mary Pollard
testified on the prosecution’s behalf about events
that occurred near her home on the night of the
murder and how she was neighbccs to Hutton and
his mother. She also testified that after her husband
left for work at midnight, she was upstairs in her
room when she heard “a lot of knocking next door to
me on the [side of the] Hutton’s, like bamming on the
door, bam, bam, bam.” (R. 16-26, PageID 6927-28.)
She testified that she heard a person yelling, “I’m
shot. I'm shot.” (R. 16—26, PageID 6929.) Then, as
she described, someone began to knock on her door
yelling, “I'm shot. Im shot.” (R. 16—26, PageID
6929.)

Although she testified that Allen was downstairs
when the knocking started and that Allen reached

34a

the front door before she did, she made it clear that
neither she nor Allen left the house. (/d.) Mary
Pollard’s testimony further revealed—in mitigating
form—that Sam Simmons left her yard when he
heard Hutton driving by and acted “[ljike he was
glad to see” him. (R . 16—26, PageID 6941-42.) It
was reasonable for the court to find that Allen’s
account of what happened that night was no
different from the account his mother provided in
trial.

Second, Hutton claimed that his trial counsel was
ineffective for failing to investigate information
provided by Simmons, Sr. that three men visited his
home and asked where they could find Simmons, Jr.
(Pet.’s Br. 73.) However, Hutton fails to explain how
Simmons, Sr.’s encounter with the three men was
relevant to his defense or how his counsel’s decision
to not use it prejudiced him. (R. 67, PageID 1648.)
Therefore, he fails to demonstrate deficient
performance and prejudice. Nor can Hutton do so
with respect to his claim that counsel should have
investigated witnesses to establish that the sewing
machine belonged to Sharon Booker. That fact was
proved at trial by Hutton’s testimony.

Last, Hutton contends that trial counsel should
have investigated Simmons, Jr.'s drug use and
relationship with Mitchell. (Pet.’s Br. 74.) Despite
Hutton’s submission of four individual affidavits, the
evidence presented at trial concerning Simmons, Jr.’s
possible drug use was stronger. For instance, at
trial, the jury *505 heard testimony from the
surgical resident who examined Simmons, Jr. in the
emergency room after he was shot and who indicated

that Simmons, Jr. was likely using drugs. (R. 67,
PagelD 1648-50.)

Therefore, each asserted claim fails to establish a
claim for ineffective assistance of counsel. The state
court’s rejection of this claim was not contrary to
clearly established law nor did it involve an
unreasonable application of clearly established law.

F.

Last, Hutton contends that trial counsel was
ineffective because counsel did not object to the
prosecution’s use of Hutton’s juvenile record as well
as the prosecution’s reference to a prior homicide
conviction that had been overturned. (Pet.’s Br. 77;
R. 16—29, PageID 7751.) Because trial counsel did
not object, the Ohio Supreme Court reviewed the
claim for plain error and found that none existed. /d.
The state supreme court first found that “the
[juvenile] record was part of the [presentence report]
and therefore subject to fair comment by the
prosecutor. Merely reading excerpts from the
[presentence report] to the jury was not
objectionable.” Hutton, 559 N.E.2d at 446. As such,
the court did not find any ineffective assistance of
counsel. Jd. The court, however, found that the
prosecutors comments to the jury that the prior
murder conviction had been reversed were improper
because this evidence was not contained in the
presentence report. /d. at 442. But the court did not
address the claim that trial counsel was ineffective
for failing to object to these comments.

On federal habeas corpus review, the district
court denied the ineffective assistance claim, finding
that the Ohio Supreme Court’s resolution was

36a

neither unreasonable nor contrary to _ clearly
established law. We agree. We have noted that
“[blecause the decision to object in a particular
instance is made in the strategic context of an entire
trial, any single failure to object does not constitute
error unless the information introduced ‘is so
prejudicial to a client that failure to object essentially
defaults the case to the state.” Hodge v. Haeberlin,
579 F.3d 627, 649 (6th Cir. 2009). Although trial
counsel did not object to the prosecutor's comments,
he clarified in his closing argument which conviction
had actually been overturned, and the circumstances
giving rise to the charged offenses. (R. 16—29,
PagelD 7754-55.) As with the other ineffective
assistance claims, Hutton cannot establish prejudice
proving that, but for counsel’s unprofessional errors,
the result of the proceeding would have been
different. Darden v. Wainwright, 477 U.S. 168, 184,
106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

iil.

Accordingly, we REVERSE the judgment of the
district court and CONDITIONALLY GRANT
habeas relief based on the first assignment of error,
rejecting the remainder. We REMAND the case to
the district court with instructions to order Hutton’s
release from custody unless the state grants a new
sentencing hearing within 180 days from the date
that the mandate issues from this Court.

MERRITT, Circuit Judge, concurring.

I do not agree with my colleagues’ procedural
ruling that the Eighth Amendment claim in this case
has not been decided by the Ohio Supreme Court on

37a

the merits but rather is procedurally defaulted. My
colleagues appear to believe that we cannot review
the merits of this claim directly in habeas corpus—
due to a procedural default that kept the Ohio
Supreme Court from reviewing it on the merits. On
page 497 of her opinion, Judge Donald says, *506
“Hutton defaulted this claim.” Judge Rogers makes
the same statement in the first paragraph of his
dissenting opinion. My reas»ning is that the Eighth
Amendment claim, although not presented by
Hutton’s ineffective appellate counsel on direct
appeal, was clearly and persuasively presented by
three dissenting members of the Ohio Supreme
Court. The full Ohio Supreme Court had clear notice
of the issue. The habeas law on this subject appears
to be that a state court is “presumed” to decide the
merits of a federal issue when, as here, it has
indisputable notice of the question explained by
three members as decisive. In these circumstances,
the state court cannot be regarded as not having
ruled on the merits when it remains silent. In this
case silence speaks volumes. The Supreme Court
has held many times that

when a state court issues an order that
summarily rejects without discussion all the
claims raised by a defendant, including a
federal claim that the defendant subsequently
presses in a federal habeas proceeding, the
federal habeas court must presume (subject to
rebuttal) that the federal claim was
adjudicated on the merits.

Johnson v. Williams, —~— U.S. , 133 S.Ct. 1088,
1091, 185 L.Ed.2d 105 (2013) (citing Harrington v.
Richter, 562 U.S. 86, 98-99, 131 S.Ct. 770, 178

38a

L.Ed.2d 624 (2011)). If we are to adhere to Johnson
and Richter, it makes no sense at all to create
additional hurdles for Hutton to jump by ruling that
the Ohio Supreme Court did not rule on the Eighth
Amendment issue that three dissenting justices
discussed at length as an obvious constitutional
error. Although it is unclear why the Ohio Supreme
Court majority did not respond to the dissenting
justices’ very clear, constitutional argument, it is
clear, as the court acknowledged in a subsequent
opinion in 2003, that the point was before the court.
In upholding the death penalty, the majority simply
chose to remain silent on the issue in order to avoid
reversing the death penalty. Therefore, we must
assume that the Ohio Supreme Court was aware of
the issue and ruled against Hutton on the Eighth
Amendment issue.

I. Hutton’s Penalty Phase Invalid
under Eighth Amendment

Three dissenting justices on the Ohio Supreme
Court said that the imposition of the death penalty
in this case is clearly unconstitutional under the
Eighth Amendment and that the issue must be
reached and decided. Of the seven members of the
Ohio Supreme Court when the case was decided on
direct appeal in 1990, three wrote an opinion
upholding the death penalty in Hutton’s case, one
concurred in the result, and three dissented. The
three dissenters wrote that the imposition of the
death penalty here clearly violated the basic
doctrinal requirement of Gregg v. Georgia, 428 U.S.
153, 196, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), that
specific “aggravators” be present in the case and
explicitly defined by the trial court and explained to

39a

the jury as the aggravating factors to be weighed by
the jury against mitigating evidence.

After ruling the death penalty unconstitutional in
Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33
L.Ed.2d 346 (1972), the Supreme Court in Gregg
reconsidered and required a capital sentencing
system in which the jury must find “aggravating”
factors in addition to simple murder and in which the
trial court must instruct the jury as to the process of
weighing specific aggravators against mitigating
evidence.' *507 The dissenting justices in Hutton’s
case noted that there were no such qualifying
aggravator-mitigator instructions at Hutton’s capital
sentencing trial and that the capital sentencing
proceeding clearly violated constitutional standards:

Without any instruction [fat sentencing]
defining “aggravating circumstances,” the jury
was left “with untrammeled discretion to
impose or withhold the death penalty.” Gregg
v. Georgia (1976), 428 U.S. 153, 196, at fn. 47,
96 S.Ct. 2909, 2936, at fn. 47, 49 L.Ed.2d 859.
This, the United States Constitution forbids.

' The finding of the here-undefined aggravators must be made
by the jurors, not by the court or the prosecutor. The Supreme
Court has subsequently held that this jury requirement
includes the finding that the found aggravators outweigh the
mitigators. Hurst v. Florida, ——U:S. , 1386 S.Ct. 616, 193
L.Ed.2d 504 (2016). This entire process did not occur in the
trial in this case in 1986—in part because apparently neither
defense counsel nor the trial judge understood the basic Eighth
Amendment “aggravator” requirement for imposing capital
punishment.

40a

State v. Hutton, 53 Ohio St.3d 36, 559 N.E.2d 432,
449 (1990).

The three dissenters explained the situation at
trial as follows:

The trial court’s instructions to the jury
correctly explained that the jury was required
to weigh the aggravating circumstances
against the mitigating factors, and could
impose a sentence of death only if the
aggravating circumstances outweighed the
mitigating factors. Unfortunately, the court
failed to tell the jury what the “aggravating
circumstances” were.

No jury (or anyone else) can _ weigh
aggravating circumstances against mitigating
factors without knowing what the aggravating
circumstances are. This weighing process is
the very purpose of the sentencing phase of a
capital trial.

Id. at 448-49.

The three dissenting justices also found that
“defendant’s counsel did not object at trial” to this
constitutional error, an error that was so obvious
after the Gregg case that the justices found it to be
“plain error” on the part of counsel and the lower
court. As stated above, the three justices who joined
the single justice concurring in the result to make a
majority simply did not discuss this Eighth
Amendment issue at all. They simply remained
silent on the issue. Although the majority did
discuss ineffective assistance of counsel on several

Ala

other points, they avoided any discussion of whether
trial counsel should have raised this issue that the
dissenters viewed as so obvious as to be “plain error.”
Under such circumstances, we must presume that
the majority of the Ohio court rejected the Eighth
Amendment issue 4--3.

In the Ohio Supreme Court’s second opinion
delivered in 2003 after a remand, it clearly
mentioned the fact that the trial court failed to
define the “aggravating circumstances” and itself
suggested the possibility of “plain error.” But then
instead of deciding the Eighth Amendment question
based on plain error, as found by their dissenting
colleagues in the earlier opinion, the Ohio Supreme
Court again simply did not discuss the question
further. It immediately shifted its focus and treated
the constitutional problem as a Sixth Amendment
issue of ineffective assistance of counsel. Skipping
over the Eighth Amendment issue that the three
dissenting justices had decided in favor of Hutton,
the Ohio Supreme Court simply concluded without
elaboration: “Failure to raise the waived
instructional issue was not deficient performance
constituting ineffective assistance of counsel.” State
v. Hutton, 100 Ohio St.3d 176, 797 N.E.2d 948, 959
(2003).

*508 IL. Ineffective Assistance of Counsel

Federal judges should not go out of their way to
foreclose and prevent themselves from reaching the
merits of a constitutional issue that must be decided
in favor of the accused if reached—especially in a
death case. That is the case here. No one can claim
here that Hutton did receive a fair trial, as the

A2a

dissenting Ohio justices make clear. If federal judges
are going to stretch their minds a bit, it should be in
favor of reaching the merits so that they make sure
that justice is done. But if Hutton’s Eighth
Amendment claim was procedurally defaulted in the
state court, | would find, unlike my colleagues, that
he suffered ineffective assistance of counsel by both
trial and appellate counsel so as to overcome the
default. I would also necessarily find that Hutton’s
independent claim of ineffective assistance of counsel
is meritorious.

Under Strickland v. Washington, 466 U.S. 668,
687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
Hutton’s counsel “fell below an objective standard of
reasonableness,” and “the deficient performance
prejudiced the defense” when trial counsel failed to
identify and object to the faulty jury instruction
during the penalty phase. It is undisputed that the
failure to give the omitted instruction was error and
the error was recognized by three of the Ohio
Supreme Court justices as plain error. I would find
defense counsel’s failure to object in_ this
circumstance, more than ten years after the Supreme
Court’s opinion on aggravators in Gregg v. Georgia,
to constitute ineffective assistance of counsel. As for
appellate counsel, the contention that the Eighth
Amendment issue arising from the failure to give the
instruction on aggravating circumstances was not
equal to or stronger than the issues actually raised
by appellate counsel on direct appeal is without
merit as confirmed by the issue serving as the sole
basis for the dissent by the three Ohio Supreme
Court justices. There can be no dispute that Hutton
was prejudiced by the ineffectiveness. Hutton has

43a

therefore clearly demonstrated cause and prejudice
through ineffective assistance of counsel to excuse
any default on the Eighth Amendment issue. This
may also amount to a due process error but, as
described above, the “untrammeled discretion” of the
jury during its weighing of aggravators and
mitigators allowed the jury to impose the death
penalty in violation of the Eighth Amendment.

I would also find along with Judge Donald that a
miscarriage of justice would occur if any procedural
default were not excused and we failed to reach the
merits of Hutton’s Eighth Amendment claim. The
Supreme Court has stated that

in all cases in which a state prisoner has
defaulted his federal claim in state court
pursuant to an independent and adequate
state procedural rule, federal habeas corpus
review of the claim is barred unless the
prisoner can demonstrate cause for the default
and actual prejudice as a result of the alleged
violation of federal law; or demonstrate that
the failure to consider the claims will result in
a fundamental miscarriage of justice.

Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir.
2006) (quoting Coleman v. Thompson, 501 U.S. 722,
749, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Hutton
had a constitutional right to have a jury weigh the
two statutory aggravators against the mitigators. By
omitting the instruction on the proper aggravators to
be considered, the trial court allowed the jury
unfettered discretion and violated Hutton’s Eighth
Amendment right. There is a reasonable likelihood
that the result of the penalty phase would have been

44a

different had the jury been properly instructed. To
allow the *509 death sentence to be carried out when
a crucial part of the procedure for choosing between
life and death was omitted would be a serious
miscarriage of justice.

Now twenty-five years later when Hutton makes
the argument on both the Eighth and Sixth
Amendment issues, the state, as well as our
dissenting colleague, falls back on procedural default
and AEDPA to avoid the merits. In my view, the
argument of the dissenting justices of the Ohio
Supreme Court, and the full court’s rejection of it,
should not block a federal court in habeas from
reaching and deciding the merits of the issues in this
capital case. And when we reach the merits, there is
only one answer. The trial was unconstitutional, as
the dissenting justices found.

| would issue the writ of habeas corpus for these
reasons and give the state an opportunity to retry
the sentencing phase of the case. But now 30 years
after the crime and the beginning of Hutton’s
incarceration, I do not believe it would be
constitutional under the Eighth Amendment’s
standard of “evolving standards of decency that mark
the progress of a maturing society” to impose the
death penalty. Trop v. Dulles, 356 U.S. 86, 100—01,
78 S.Ct. 590, 2 L.Ed.2d 630 (1958). The reimposition
of the death penalty 30 years later is certainly
“unusual,” 1f not unique, and death is different in
kind from any other punishment.

45a

ROGERS, dissenting in part.

Percy Hutton’s jury-instructions claim is
procedurally defaulted, as it was not raised on direct
appeal in the state courts. Hutton concedes as
much.! Review of that claim is possible, then, only
by finding cause and prejudice for the default (which
the lead opinion does not do), or by stretching the
narrow “fundamental miscarriage of justice”
exception far beyond its proper bounds (which the
majority does). Not only does that exception to
procedural! default not apply in this case, but Hutton
never even raised the exception in the district court
or on appeal, waiving the argument in that court and
in this one. The procedural rules that constrain
federal-court oversight of state criminal proceedings
should not be so lightly brushed aside.

Federal courts generally do not entertain claims
that are procedurally barred by an “independent and
adequate state procedural rule” unless a_ valid
“cause” excuses the default. Coleman v. Thompson,
501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640

! Judge Merritt contends that there was no procedural default
because the Ohio Supreme Court's silence on Hutton’s claim is
a ruling on the merits. Even if the Ohio Supreme Court's
deciding on the merits somehow means there was no default by
Hutton, this court cannot presume that the state-court majority
dismissed the claim on the merits just because three dissenting
justices discussed the claim, when Hutton did not even raise the
claim on his direct appeal to the state court. Furthermore, even
if such a presumption were appropriate, it would be overcome in
this case. As the lead opinion notes, the state-court majority
expressly stated it was not considering the merits of Hutton’s
jury-)nstructions claim. See State v. Hutton, 53 Ohio St.3d 36,
559 N.E.2d 432, 437 n.1 (1990).

46a

(1991). Throughout federal and state post-conviction
litigation, Hutton has given only one reason for his
failure to present the jury-instructions claim on
direct appeal: ineffective assistance of appellate
counsel. The ineffective-assistance claim is premised
on appellate counsel’s failure to raise the jury-
instructions issue and trial counsel’s purported
ineffectiveness for failing to object to the
instructions. As the lead opinion concludes, however,
the ineffective-assistance claim warrants no relief,
see Lead Op. ante at 500-02, and so that claim
cannot excuse Hutton’s default.”

*510 That leaves one possible ground for
reviewing the merits of Hutton’s jury-instructions
claim: the _ so-called fundamental-miscarriage-of-
justice exception to procedural default, an argument

2 Judge Merritt states that Hutton “suffered ineffective
assistance of counsel by both trial and appellate counsel so as to
overcome the default.” Merritt Op. ante at 508. Even if defense
counsel prejudiced Hutton by deficiently failing to object to the
jury instruction during the penalty phase of trial, the lead
opinion correctly concludes that appellate counsel’s failing to
raise an ineffective-assistance claim based on this failure was
not deficient, see Lead Op. ante at 501-02. The Ohio Court of
Appeals reversed the judgment on five of appellate counsel's
assignments of error. State v. Hutton, No. 51704, 1988 WL
39276, at *6 (Ohio Ct. App. Apr. 28, 1988), rev'd, 53 Ohio St.3d
36, 559 N.E.2d 432 (1990). It cannot be that under these
circumstances appellate counsel's failure to raise one other
colorable issue amounts to conduct that is so woefully
inadequate as to constitute ineffective assistance.
Furthermore, a court must evaluate the objective
reasonableness of counsel's conduct without “the distorting
effects of hindsight.” Strickland v. Washington, 466 U.S. 668,
689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

47a

that Hutton has waived. The exception is a narrow
one, applying only in “extraordinary case[s].” Gibbs
v. United States, 655 F.3d 473, 477 (6th Cir. 2011)
(quoting Murray v. Carrier, 477 U.S. 478, 496, 106
S.Ct. 2639, 91 L.Ed.2d 397 (1986)). To obtain a
merits review of a constitutional claim, a petitioner
asserting this exception must generally show that an
“alleged constitutional error has resulted in the
conviction of one who is actually innocent of the
underlying offense.” Dretke v. Haley, 541 U.S. 386,
388, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (citing
Murray, 477 U.S. 478, 106 S.Ct. 2678; Sawyer v.
Whitley, 505 U.S. 333, 112 S.Ct. 2514, 120 L.Ed.2d
269 (1992)). In addition to cases involving factual
innocence, the exception has been applied in the
capital sentencing process, but only to the small
subset of cases where a habeas “petitioner has shown
by clear and convincing evidence that but for
constitutional error, no reasonable juror would find
him eligible for the death penalty under [state] law.”
Sawyer, 505 U.S. at 348, 112 S.Ct. 2514. In such a
case, the petitioner can be said to be “innocent” of the
death penalty, even if he is factually guilty of the
capital crime. But Hutton has never argued, in this
court or in the district court, that he is ineligible for
the death penalty. He has therefore unquestionably
waived the issue. Hutton’s decision not to raise the
argument at any point in federal litigation prevents
us from analyzing whether he satisfies the
fundamental-miscarriage-of-justice exception. See
Kuhn v. Washtenaw Cty., 709 F.3d 612, 624 (6th Cir.
2013); see also Foster v. Michigan, 573 Fed.Appx.
377, 392—93 (6th Cir. 2014).

48a

In any event, Hutton had good reason not to
argue that exception. Any argument concerning the
fundamental-miscarriage-of-justice exception would
have been a losing one, as a jury would have been
authorized to impose the death penalty if the jury
instructions had correctly defined “aggravating
circumstances.” The proper inquiry is not whether a
defendant is eligible for the death penalty even with
the alleged error. Compare Lead Op. ante at 500-01.
The exception instead focuses on what would have
happened if no error had occurred. The Sawyer
Court used the phrase “but for constitutional error,”
Sawyer, 505 U.S. at 348, 112 S.Ct. 2514, a phrase
that requires courts to ask whether, assuming that
no error had occurred, a jury would have been
authorized by state law to impose the death penalty.*®
In applying that *511 standard, Sawyer thus
analyzed whether evidence that the state should
have furnished to the defendant would have
prevented the jury from finding either of the
necessary conditions for imposing the death
penalty—that the defendant was guilty of the crime
and that one or more aggravating circumstances
applied. See id. at 349—50, 112 S.Ct. 2514.

Hutton’s eligibility for the death penalty is
indisputable. A defendant becomes death-eligible in

3 The Supreme Court in Sawyer also endorsed an Eleventh
Circuit decision that stated the same test in different words.
That formulation required a petitioner to “show that absent the
alleged constitutional error, the jury would have lacked the
discretion to impose the death penalty.” Sawyer, 505 U.S. at
347 n.15, 112 S.Ct. 2514 (quoting Johnson v. Singletary, 938
F.2d 1166, 1183 (11th Cir. 1991) (en banc)).

49a

Ohio when the jury convicts him of a capital murder
count with an attached “specification,” as that is the
point at which the death penalty is placed on the
table. See Wilson v. Mitchell, 498 F.3d 491, 495 &
n.2 (6th Cir. 2007). “Imposition of the death penalty
for aggravated murder is precluded unless one or
more [statutorily defined specifications] is specified
in the indictment... and proved beyond a
reasonable doubt.” Ohio Rev. Code § 2929.04(A). A
specification is an “eligibility factor” that satisfies the
Eighth Amendment’s§ narrowing requirement.
Wilson, 498 F.3d at 505; see also Brown v. Sanders,
546 U.S. 212, 216, 126 S.Ct. 884, 163 L.Ed.2d 723
(2006). In this case, the jury found two such
factors—mass murder and felony murder—in the
process of convicting Hutton of two counts of
aggravated murder. Both factors were included in
the indictment. That rendered Hutton eligible for
the death penalty.

As there is no question about the validity of the
two specifications, any error in the penalty-phase
jury instructions did not affect Hutton’s eligibility for
the death penalty. The weighing of aggravating
circumstances against mitigating evidence does not
relate to eligibility. “Once the narrowing
requirement has been satisfied, the sentencer is
called upon to determine whether a defendant thus
found eligible for the death penalty should in fact
receive it.” Sanders, 546 U.S. at 216, 126 S.Ct. 884.
At sentencing, the jury thus weighs the aggravating
circumstances that “the offender was found guilty of
committing” against the mitigating evidence. See
Ohio Rev. Code § 2929.03(D)(2). (The mass murder
and felony murder specifications in Hutton’s

50a

indictment doubled as aggravating circumstances for
sentencing purposes. See id. § 2929.04(A)(5), (7).)
Any infirmity in the instructions on weighing does
not negate a _ defendant's earlier-determined
eligibility.

A hypothetical example demonstrates how this
case is different from the type of case that the
fundamental-miscarriage-of-justice exception targets.
Assume that a defendant was convicted of
aggravated murder and that the only aggravating
circumstance that the prosecutor argued was an
“especially heinous, atrocious, or cruel” factor. At
sentencing, the jury weighed that factor against the
mitigating evidence en route to the conclusion that
the death penalty was warranted. In such a case,
the defendant on federal habeas review might be able
to show that he was not eligible for the death
penalty, allowing the court to reach the merits of his
procedurally defaulted claim that an error affected
his sentence. That is because the “heinous,
atrocious, or cruel” factor is unconstitutionally vague
in most applications, see Maynard v. Cartwright, 486
U.S. 356, 364-65, 108 S.Ct. 1853, 100 L.Ed.2d 372
(1988), and no other aggravating circumstances were
present in the case. “Sensible meaning is given to
the term ‘innocent of the death penalty’ by allowing a
showing in addition to innocence of the capital crime
itself a showing that there was no aggravating *512
circumstance or that some other condition of
eligibility had not been met.” Sawyer, 505 U.S. at
345, 112 S.Ct. 2514. Because no valid aggravating
factors supported the defendant’s death sentence in
the hypothetical, the defendant would be “actually

5la

innocent” of that penalty. The same cannot be said
of this case.

The Supreme Court's decisions in Hurst ov.
Florida, —— U.S. ——-, 136 S.Ct. 616, 193 L.Ed.2d
504 (2016), and Ring v. Arizona, 536 U.S. 584, 122
S.Ct. 2428, 153 L.Ed.2d 556 (2002), have nothing to
do with whether Hutton is eligible for the death
penalty. “[A] claim of ‘actual innocence’ is... a
gateway through which a habeas petitioner must
pass to have his otherwise barred constitutional
claim considered on the merits.” Gibbs, 655 F.3d at
477 (quoting Herrera v. Collins, 506 U.S. 390, 404,
113 S.Ct. 853, 122 L.Ed.2d 203 (1993)). Hurst and
Ring are relevant, if at all, to the merits of Hutton’s
claim that constitutional error occurred when the
trial judge failed to define the aggravating
circumstances. Yet the merits are not reviewable in
the context of this case. A federal habeas court has
no business reaching a defaulted claim if the
petitioner can show neither cause for the default nor
that he was innocent of the death penalty.

Even if it were proper to reach the merits, the
Supreme Court’s decisions in Hurst and Ring do not
require the conclusion that constitutional error
occurred. In those cases, state law required a judge,
at a separate penalty hearing, to find aggravating
circumstances before sentencing a defendant to
death. Hurst, 136 S.Ct. at 619; Ring, 536 U.S. at
588, 122 S.Ct. 2428. The Ohio capital system,
however, does not work that way. In Ohio, the jury
weighs aggravating circumstances and mitigating
evidence at sentencing after it has already found the
aggravating circumstances at the guilt stage. Here,
the jury found the mass-murder and felony-murder

52a

circumstances at the guilt phase. Compare Maj. Op.
ante at 498-99. What is more, the trial judge in the
penalty-phase instructions reminded the jury that it
had made those findings, instructing the jury that
“[t]he prosecution has the burden to prove beyond a
reasonable doubt that the aggravating
circumstances, of which the Defendant was found
guilty, outweigh the factors in mitigation of imposing
the death sentence.” (Emphasis added.) This is
therefore not a case in which the jury found no
aggravating circumstances, but rather a case in
which the jury found aggravating circumstances and
later received instructions that did not spell out the
aggravating circumstances that the jury had

previously found.

That distinction makes all the difference for Sixth
Amendment purposes. As we indicated in Webb v.
Mitchell, 586 F.3d 383, 399 (6th Cir. 2009), another
Ohio death-penalty case, a state-law error in penalty-
phase instructions on weighing may be cured by
appellate reweighing of _ the aggravating
circumstances and the mitigating evidence. In that
case, the state trial judge erroneously instructed the
jury at the penalty phase to consider the quantity of
the evidence in the weighing analysis rather than
the quality. Jd. at 397. In rejecting an ineffective-
assistance claim, we held that any argument that
trial counsel could have raised would not have been a
strong one, reasoning that “[t]he Ohio Supreme
Court has consistently held that... ‘careful
independent reweighing’ cures errors by the jury or
trial court in ‘weighing the aggravating
circumstances against any mitigating factors.’” Id.
at 399 (quoting State v. Lott, 51 Ohio St.3d 160, 555

53a

N.E.2d 293, 304 (1990)); see also Hoffner ov.
Bradshaw, 622 F.3d 487, 506 (6th Cir. 2010).
Nowhere did we suggest that a penalty-phase error
in jury instructions runs afoul of the Ring line of
cases. In this case, *513 as in Webb, the jury found
the aggravating circumstances at the guilt phase,
before the crror in the penalty-phase instructions.
And here, as in Webb, the Ohio Court of Appeals
concluded that the death sentence was appropriate
after reweighing the aggravating circumstances
against the mitigating evidence. See State v. Hutton.
72 Ohio App.3d 348, 594 N.E.2d 692, 694 (1991).
There is thus strong reason to doubt the merit of
Hutton’s claim.

The judgment of the district court denying Hutton
relief should be affirmed. I join all of the lead
opinion except Parts II.A and III.

54a

APPENDIX C
2013 WL 2476333

United States District Court,

N.D. Ohio,
Eastern Division.

Percy HUTTON, Petitioner,
Vv

Betty MITCHELL, Warden, Respondent.

No. 1:05CV2391.

|
June 7, 2013.

Attorneys and Law Firms

David L. Doughten, John B. Gibbons, Cleveland, OH,
for Petitioner.

Lisa M. Stickan, Daniel R. Ranke, Laurence R.
Snyder, Office of the U.S. Attorney, Cleveland, OH,
Seth P. Kestner, Office of the Attorney General,
Columbus, OH, for Respondent.

MEMORANDUM OF OPINION
CHRISTOPHER A. BOYKO, District Judge.

*1 This matter is before the Court upon Petitioner
Percy Hutton’s (“Hutton” or “Petitioner”) Amended
Petition for Writ of Habeas Corpus.

Pursuant to 28 U.S.C. § 2254, Petitioner filed an
Amended Petition for Writ of Habeas Corpus,
challenging his conviction and sentence of death

rendered by an Ohio court. (ECF No. 60.) The
Respondent, Warden Betty Mitchell (“Respondent”),
filed a timely Return of Writ, and Hutton filed an
Amended “Traverse. (ECF Nos. 64 and 66,

respectively.)

For the following reasons, the Amended Petition
for Writ of Habeas Corpus is denied.

I. Factual History

On October 16, 1985, a Cuyahoga County Grand
Jury issued a five-count Indictment against Hutton.
The Indictment charged Hutton with two counts of
murdering Derek Mitchell (“Mitchell”) in violation of
Ohio Revised Code § 2903.01. The first count
charged that he committed the murder with prior
calculation and design pursuant to Ohio Revised
Code § 2903.01(A). The second charged him with
murdering Mitchell while committing, attempting, or
fleeing the commission or attempted commission of
kidnapping, pursuant to Ohio Revised Code
§ 2903.01(B). Each murder count carried one firearm
specification, Ohio Revised Code § 2929.71(A), and
two capital specifications: a course-of-conduct
specification, Ohio Revised Code § 2929.04(A)(5), and
a felony-murder specification of kidnapping, Ohio
Revised Code § 2929.04(A)(7). Hutton also was
indicted for kidnapping Mitchell and Samuel
Simmons Jr. (“Simmons”), in violation of Ohio
Revised Code § 2905.01, and for the attempted
murder of Simmons, in violation of Ohio Revised
Code § 2911.11. Each count carried a firearm
specification. Hutton entered a plea of not guilty to
all charges.

56a

The Ohio Supreme Court set out the following
factual history, as adduced by the evidence presented
at trial, upon considering Hutton’s direct appeal of
his convictions and sentence:

On Friday, September 13, or Saturday.
September 14, 1985. Percy “June” Hutton
confronted Samuel Simmons, dr. outside
Simmons’s home and accused him of stealing a
sewing machine belonging to Hutton.
Claiming that he had seen Simmons’s friend
Derek “Ricky” Mitchell trying to sell the
machine, Hutton demanded that Simmons
give the machine back immediately. Simmons
suggested that Hutton “go talk to Ricky.”

When Mitchell arrived, Hutton went upstairs
with him. When they came back down,
according to Simmons, Hutton said that “it
wasn't what he was looking for and if he found
out we had anything to do with what was
missing or stolen he was going to kill us.”

The following Monday morning, September 16,
Hutton went back to Simmons’s home at about
12:00 a.m. and asked him to work on a car.
Hutton and Simmons got into Hutton’s car,
where Bruce Laster was waiting for them.
When he got in, Simmons saw a .22 caliber
rifle on the back seat. Hutton drove them to
Mitchell’s house saying, “I want to talk to you
and Ricky, man.” When they arrived.
Simmons told Mitchell that “June wanted to
talk to him.”

*2 After accusing Mitchell of stealing tires
from Hutton’s back yard. Hutton demanded

57a

the return of his sewing machine, in which he
had hidden $750. Mitchell denied taking the
machine. Hutton insisted that Mitchell had
tried to sell the machine to a Mr. Evans and
demanded that Mitchell come with him to
Evans's house. According to Simmons, Hutton
said: “ * * * If Evans said you ain’t the one who
tried to sell him the sewing machine, * ** |
will apologize. If he say you tried to sell the

sewing machine, that mean I’m f___ing you
k*e¥*”

up.
Mitchell and Simmons got into the ear.
Hutton pointed the rifle at Simmons’s side and
said that he didn’t appreciate Simmons and
others breaking into his sister’s house.

Instead of going to Evans’s house, Hutton
drove to a parking lot behind a bus depot on
93rd Street. He ordered Mitchell out of the
car. Mitchell and Hutton walked away from
the car so that Simmons could not hear their
conversation, but he saw Hutton put a pearl-
handled, nickel-plated, .22 caliber automatic
pistol to Mitchell’s head.

Hutton and Mitchell returned to the car.
Following Mitchell’s directions, Hutton drove
to a building on 30th Street. Hutton and
Mitchell went inside for a few minutes and
emerged with a white sewing machine case.

Hutton drove to his mother’s house, took the
case inside, and returned to the car. Hutton
drove a short distance and parked in an alley
next to a brown El Dorado. Simmons got out.

58a

Hutton moved his car to the other end of the
street. He then walked back to the El Dorado.

Simmons got behind the wheel as Hutton
“went under the hood” and said, “Try to start
it.” He then walked back to Simmons and shot
him twice in the head.

Simmons, unable to move, lay partly in and
partly out of the car and cried for help. No one
responded. He managed to get up and stagger
to two nearby houses to seek aid. Hutton
found him pounding on the back door of the
second house and told him to get into the car.
Telling Mitchell that someone had _= shot
Simmons, Hutton then drove Simmons to St.
Luke’s Hospital.

At the hospital, Simmons asked Mitchell to go
inside with him. Mitchell refused and said
they were going to get the person “that did this
to you.” Simmons then got out of the car and
went into the hospital by himself.

At 2:30 a.m., Mitchell, Hutton, and Laster
returned to Mitchell’s apartment. They woke
Mitchell’s alleged common-law wife, Eileen
Sweeney, and, taking her to the hospital, they
dropped her off and left. Sweeney went in to
visit Simmons. Telling her that Hutton had
shot him, Simmons sent her to warn Mitchell
to get out of the car. She went outside, but the
car had gone. She never saw Mitchell again.

Half an hour later, Hutton and Laster
returned to the hospital. Hutton told Sweeney
that Mitchell was home and offered to take her

09a

there. Instead, Hutton took Sweeney to a
park, where he raped her vaginally and orally.
Hutton had a small handgun with a white
handle and a silver-colored barrel. During the
rape, Hutton advised Sweeney to “forget
about” Mitchell because “Ricky wasn’t coming
back.”

*3 After the rape, Hutton took Sweeney home.
The door to the apartment had been damaged
and the apartment was in disarray. Mitchell
was not there. Too “scared and nervous” to
drive, Sweeney accepted Hutton’s offer to drive
her to the home of Mitchell's sister LaWanda.
Hutton accompanied Sweeney into LaWanda
Mitchell’s house. Sweeney testified that “[H]e
told me, Ricky wasn’t coming back, and if |
told[,] someone would be looking for me .”

On September 30, a decomposing corpse was
found near the intersection of East 88th Street
and St. Catherine Avenue, Cleveland. A large
tire lay on the corpse. The autopsy disclosed
that the body was Derek Mitchell's, and that
Mitchell had been shot to death. Two bullets
were recovered. A firearms expert identified
them as .22 caliber long rifle ammunition that
could have been fired from either a rifle or a
handgun. The bullets that killed Mitchell had
the same class characteristics as a bullet that
had been removed from Simmons’s head, but
the expert could not tell whether all three had
been fired from the same gun.

*“**

60a

Hutton’s defense was that Mitchell was not
killed on September 16, but at some later time
when Hutton was in Indianapolis. Denise
Richardson testified that she saw Mitchell
alive and spoke to him at about 3:00 p.m. on
September 17, 1985, the day after the state
claimed Mitchell was murdered. According to
Hutton, he was in Indianapolis at the time
Richardson spoke to Mitchell and stayed there
until October 3, except for two brief visits to
Cleveland on September 21 and 28. An
employee of the Fall Creek branch of the
Indianapolis YMCA saw’ Hutton there
sometime after 4:00 p.m. on September 17.
She testified that he paid rent covering the
period September 17 to October 3.

State v. Hutton, 53 Ohio St.3d 36, 37—39, 559 N.E.2d
432, 436-38 (Ohio 1990).

II. Procedural History
A. State-Court Proceedings

Hufton’s trial commenced on January 3, 1986. He
was represented by Attorney Merlin Hill. A jury
returned a verdict of guilty as to all counts and the
capital specifications on January 29, 1986. The
penalty phase of the trial commenced on February 3,
1986. Two days later, on February 5, 1986, the jury
recommended that Hutton be sentenced to death.
The trial court accepted the jury’s recommendation
and sentenced Hutton to death on February 7, 1986.

Hutton filed a timely appeal of the trial court's
decision to the Eighth District Court of Appeals,

6la

represented by Attorney Floyd Oliver. He raised
fourteen assignments of error as follows:

|. Death qualification of the guilt phase jury in
a capital case violates the Appellant's Fifth,
Sixth, Eighth and Fourteenth Amendment
rights under the United States Constitution
and Article I §§2 and 10 of the Ohio

Constitution.

Il. Imposition of the death sentence violates
the Sixth, Eighth and Fourteenth
Amendments to the United States

Constitution and Article I §§ 2, 9, 10 and 16 of
the Ohio Constitution.

*4 III. In violation of the Eighth and
Fourteenth Amendments to the United States
Constitution and Article I §§ 9 and 16 of the
Ohio Constitution, the Appellant’s sentence of
death is inappropriate and disproportionate to
similar cases.

IV. The trial court erred in permitting the
introduction of evidence of irrelevant
prejudicial “other acts” of Appellant, and
thereby deprived him of his rights to due
process of law and to a fair trial, as
guaranteed by the Fourteenth Amendment to
the United States Constitution and Article |
§ 16 of the Ohio Constitution.

V. The trial judge abused his discretion by
allowing into evidence a series of gruesome
photographs which contained little probative
value, thereby denying Appellant's

62a

constitutionally guaranteed right to a fair
trial.

VI. The trial court erred in limiting both re-
direct and re-cross examination offered by
defense counsel, thereby denying Appellant
his United States and Ohio constitutional
rights to a fair trial, due process of law, and
confrontation.

VII. Prosecutorial misconduct during trial and
final argument to the jury denied Appellant
his Fourteenth Amendment due process right
to a fair and impartial trial.

VUI. The trial court erred in overruling
Appellant’s motions for acquittal, which
denied him due process of law, as guaranteed
by the United States and Ohio Constitutions.

IX. The trial judge erroneously instructed the
jury to exclude consideration of bias, prejudice
or sympathy for the accused, thereby
depriving Appellant of evidence in mitigation
and consideration of that mitigation in
violation of the Sixth, Eighth and Fourteenth
Amendments to the United States
Constitution and Ohio Constitution Article |
§§ 9 and 16.

X. The trial court and the _ prosecutor
instructed the jury throughout the trial that
their decision in the penalty phase is only a
recommendation in violation of the Eighth and
Fourteenth Amendments to the United States
Constitution and Article I §§ 9, 10 and 16 of
the Ohio Constitution.

63a

XI. The trial court erred in dismissing a juror
after the guilt phase but prior to the penalty
phase, contrary to Ohio Criminal Rule 24(F)
and R.C. § 2929.03(C)(2)(b), thereby denying
Appellant his United States and Ohio
constitutional rights to a fair trial and due

process.

XII. Ineffective assistance of counsel at trial
deprived the Appellant of his right to effective
assistance of counsel as guaranteed by the
Ohio and United States Constitutions.

XIII. Ineffective assistance at the penalty
phase deprived Appellant of a fair and
complete hearing as to the appropriate
sentence, thereby denying Appellant of his
rights as guaranteed by the Sixth, Eighth and
Fourteenth Amendments to the United States
Constitution and Article I §§ 9 and10 of the
Ohio Constitution.

XIV. The combination of errors occurring
throughout both the guilt and the penalty
phase deprived the Appellant of his
constitutionally guaranteed right to a fair
trial.

(App. to Return of Writ, vol. 3, 13—14.)!

*5 The Court of Appeals, in a split decision,
reversed Hutton’s conviction and sentence and

! Hutton filed a second Notice of Appeal in the Eighth District
Court of Appeals on April 14, 1986. The court of appeals
dismissed that appeal as duplicative of his first appeal. (App. to
Return of Writ, vol. 4, 2, 5.)

64a

remanded the case to the Common Pleas Court for
further proceedings. The majority opinion concluded
that the following four assignments of error were
well-taken and required reversal: the trial court's
improper admission of “other acts” evidence,
including Hutton’s alleged rape of Eileen Sweeney;
the trial court’s improper restriction of defense
counsel's ability to re-cross-examine and rehabilitate
witness Mary Etta Pollard concerning Hutton’s prior
criminal charges; prosecutorial misconduct during
trial and closing argument when _ prosecutors
revealed Hutton’s criminal history with regard to
charged offenses that did not result in convictions;
and the ineffective assistance of defense counsel at
the penalty proceedings. State v. Hutton, No. 51704,
1988 WL 39276, at ———20, 22, 25, 29 (Ohio Ct.App.
Apr. 28, 1988). The majority opinion also found that
the trial court erred in overruling Hutton’s motions
for acquittal on the charges of kidnapping and
aggravated murder of Mitchell, although it
determined that the trial court properly overruled
Hutton’s motion for acquittal with regard to the
attempted murder and kidnapping of Simmons. /d.
at 12-15. A concurring opinion, however,
concluded that MHutton’s conviction should be
reversed on narrower grounds. It agreed with the
findings of error in the admission of Eileen
Sweeney’s testimony concerning the alleged rape and
the ineffective assistance of defense counsel during
the penalty phase of the trial. It also concurred that
the trial court erroneously restricted the scope of
defense counsel’s_ re-cross-examination of Mrs.
Pollard, but did not find the error prejudicial. It also
disagreed with the finding of error in the trial court's

65a

overruling of Hutton’s motions for acquittal, and
found error with the court’s admission of prejudicial
photographs. Jd. at *32. Finally, a dissenting
opimon found no error in the two grounds the
majority agreed warranted reversal, namely, the
“other acts” evidence and the ineffective assistance of
counsel. Id. at *41.

The State appealed this judgment, and Hutton
cross-appealed, alleging that the court of appeals
erred in overruling several of his propositions of law.
Hutton again was represented by Attorney Floyd
Oliver. The State advanced the following

propositions of law:

I. Evidence Rule 404(B) generally proscribes
the use of other crimes, wrongs or acts
independent of the offense for which the
defendant is on trial where that evidence is
used to demonstrate that the defendant has a
propensity for crime or that his character is in
conformity with the other acts. This general
rule of exclusion does not apply where the
evidence of another crime is relevant to prove
the accused’s guilt of the crime charged or to
connect him wit’: it, and the evidence is not
offered merely to show propensity or
disposition on the part of the accused to
commit the crime.

*6 II. A request for a pre-sentence report in a
capital case, including a summary of the
defendant’s prior arrests and convictions, does
not per se constitute ineffective assistance of

counsel.

66a

III. Testimony of a _ character’ witness
regarding collateral matters may be limited as
irrelevant.

IV. A prosecutor does not commit prosecutorial
misconduct when he questions a character
witness regarding the defendant’s specific acts
which tend to refute the witness’ opinion of the
defendant’s character even if these specific
acts constitute criminal behavior, ' the
conviction for which was overturned on appeal.

V. A prosecutor does not commit prosecutorial
misconduct when he reviews for the jury in the
penalty phase of a capital case evidence
presented by the defense concerning the
defendant's prior criminal record.

VI. A motion for acquittal pursuant to
Criminal Rule 29(A) is properly denied when
the State presents sufficient evidence that a
jury may reasonably find that each element of
the crime has been found beyond a reasonable

doubt.

Vl. When a sentence of death is imposed the
court of appeals must re iew the sentence of
death at the same time it reviews the other

issues in the case.
(App. to Return of Writ, vol. 6, 130-32.)

Hutton asserted the following propositions of law
in his cross-appeal:

I. Imposition of the death sentence violates the
Sixth, Eighth and Fourteenth Amendments to

67a

the United States Constitution and Article |
§§ 2, 9, 10 and 16 of the Ohio Constitution.

II. In violation of the Eighth and Fourteenth
Amendments to the United States
Constitution and Article I §§ 9 and 16 of the
Ohio Constitution, the Appellant’s sentence of
death is inappropriate and disproportionate to
similar cases.

Ill. The admission of gruesome photographs is
subject to the trial court’s discretion. Where
the photographs’ probative value _ is
outweighed by the prejudicial effect, the
introduction of such photographs is prejudicial
error.

IV. During the penalty phase, the trial court
may not instruct the jury to. exclude
consideration of sympathy. This instruction is
violative of the Eighth and Fourteenth
Amendments of the United States
Constitution.

V. The sentencing instruction informing the
jury their death recommendation is_ not
binding on the court while their life verdict is
binding, unconstitutionally diminished the
jury’s responsibility for imposition of the death
penalty in violation of the Eighth and
Fourteenth Amendments to the United States
Constitution.

VI. The dismissal of a juror after the
deliberation of guilt but prior to the
deliberation of penalty is violative of the Ohio
Rule of Criminal Procedure 24(F), R.C.

68a

§ 2929.03(C)(2)(b) and the Eighth = and
Fourteenth Amendments of the United States
Constitution.

VII. Trial counsel’s failure to object to the
inclusion of prejudicial non-statutory
aggravating factors and failure to object to
prejudicial jury instructions during the
penalty phase of trial deprived the defendant
his right to effective assistance of counsel as
guaranteed by the Sixth, Eighth and
Fourteenth Amendments of the United States
Constitution.

*7 (App. to Return of Writ, vol. 6, 296—98.)

The Ohio Supreme Court, in another split
decision, reversed the decision of the Court of
Appeals on August 8, 1990, and remanded the case
back to the Court of Appeals for an independent
review of the sentence.2 State v. Hutton, 53 Ohio
St.3d 36, 50, 559 N.E.2d 432, 447-48 (Ohio 1990).
Hutton filed a motion for rehearing on August 20,
1990, which the Ohio Supreme Court denied on
October 3, 1990. State v. Hutton, 54 Ohio St.3d 710,
561 N.E.2d 945 (Ohio 1990). The Eighth District
Court of Appeals then affirmed Hutton’s death
sentence on January 17, 1991. State v. Hutton, 72
Ohio App.3d 348, 594 N.E.2d 692 (Ohio
Ct.App.1991).

2 Chief Justice Moyer wrote the majority opinion, with two
judges concurring, one judge concurring in the syllabus and
judgment only, and three judges concurring in part and
dissenting in part.

69a

Hutton filed a motion for appointment of counsel
to the Ohio Supreme Court with the Court of Appeals
on November 2, 1990, which the court denied on
January 8, 1991. (App. to Return of Writ, vol. 7, 2.)
Attorney Oliver filed a motion for reconsideration on
Hutton’s behalf on January 28, 1991, which the court
denied on February 1, 1991. (/d. at 31, 594 N.E.2d
692.) Attorney Oliver died on August 21, 1991. See
Hutton, 100 Ohio St.3d at 180, 797 N.E.2d at 955.
The Court of Appeals granted a second motion for
appointment of counsel to the Ohio Supreme Court
on February 12, 1992, and appointed Attorneys
David Doughten and Hyman Friedman. (/d. at 32,
797 N.E.2d 948.) Hutton, however, did not file a
timely appeal of the Court of Appeals’ judgment to
the Ohio Supreme Court.

Since no appeal had been filed, no further action
occurred until July 17, 1996, when the Ohio Supreme
Court granted the State’s motion to set an execution
date of September 22, 1996, and denied Hutton’s
motion to continue the stay. State v. Hutton, 76 Ohio
St.3d 1421, 667 N.E.2d 24 (Ohio 1996). On
September 19, 1996, the court stayed the execution
pending completion of post-conviction proceedings.
State v. Hutton, 76 Ohio St.3d 1480, 669 N.E.2d 861
(Ohio 1996).

Hutton appealed the Court of Appeals’ 1991
decision on remand from the Ohio Supreme Court on
August 24, 2000, simultaneously filing a motion for
delayed appeal. (App. to Return of Writ, vol. 10, 4,
7.) On October 18, 2000, the court granted Hutton’s
motion for a delayed appeal. State v. Hutton, 90
Ohio St.3d 1441, 736 N.E.2d 903 (Ohio 2000).
Hutton asserted the following propositions of law:

70a

I. When appellate counsel fails to raise several
meritorious issues on appeal, so that the
issues are deemed waived by review courts,
then appellate counsel was ineffective in his
representation and the defendant’s conviction
and death sentence must be reversed.

Il. When the death sentence imposed on a
defendant is unreliable and inappropriate, the
imposition of death violates the defendant’s
constitutional rights.

III. When the death sentence is excessive and
disproportionate to the sentences imposed in
similar cases, and when it is inappropriate,
the death sentence must be vacated and a life
sentence imposed.

(App. to Return of Writ, vol. 10, 142.)

*8 On April 21, 1997, Hutton filed in the Court of
Appeals an application for reopening of his direct
appeal pursuant to Ohio Rule of Appellate Procedure
26(B). (App. to Return of Writ, vol. 8, 3.) Hutton
was represented by Attorneys James Draper and
Robert Ingersoll of the Cuyahoga County Public
Defenders Office. He raised the following claims for
relief:

1. Appellate counsel failed to argue that the
jury instructions given in Mr. Hutton’s case
were infirm, because they defined mitigation
factors on which Mr. Hutton had not presented
any evidence.

2. Appellate counsel was ineffective for failing
to raise the issue that the trial court did not
define aggravating factors for the jury.

Tla

3. Appellate counsel was ineffective for not
arguing trial counsel was ineffective for failing
to make proper objections and preserve issues
for appellate review.

4. Appellate counsel was ineffective for failing
to raise issues before the Ohio Supreme Court
on cross-appeal.

(App. to Return of Writ, vol. 8, 3-18.) The Court
denied the application on March 20, 2000. State v.
Hutton, No. 51704, 2000 WL 301097 (Ohio Ct.App.
Mar. 20, 2000).

Hutton appealed the Court of Appeals’ ruling to
the Ohio Supreme Court, alleging the following
proposition of law:

When appellate counsel fails to raise several
meritorious issues on appeal, so that the
issues are deemed waived by review courts,
then appellate counsel was ineffective in his
representation of the defendant and an
application to reopen the appeal for ineffective
assistance of appellate counsel must be
granted.

(App. to Return of Writ, vol. 9, 13.)

The State filed a motion with the Ohio Supreme
Court to consolidate Hutton’s appeals from the 1991
judgment of the Court of Appeals on remand and the
judgment of the Court of Appeals on his application
for reopening of his direct appeal, which the Court
granted on July 25, 2001. (/d. at 197.) The Ohio
Supreme Court affirmed both judgments on
November 5, 2003. State v. Hutton, 100 Ohio St.3d
176, 797 N.E.2d 948 (Ohio 2003).

72a

Hutton filed his first post-conviction petition on
September 11, 1996, asserting the following grounds
for relief:

1. The failure of defense counsel! to adequately
represent the petitioner at the trial or guilt-
innocence determination stage resulted in a
sentence of death that does not comply with
the minimum constitutional standards of
reliability required for the imposition of a
death sentence under the Eighth and
Fourteenth Amendments to the United States
Constitution and Article I §9 of the Ohio
Constitution. The petitioner was denied the
effective assistance of counsel in the trial or
guilt-innocence determination phase as
guaranteed by the Fifth, Sixth and Fourteenth
Amendments _ to the United States
Constitution and Article I §§ 10 and 16 of the
Ohio Constitution.

2. The State of Ohio failed to provide
exculpatory evidence as required by the due
process clause of both the United States and
Ohio Constitutions.

*9 3. The trial court erred by allowing into
evidence other acts testimony that was not
inextricably connected to the offense. This
evidence was unfairly prejudicial as the State
did not establish substantial proof that the
petitioner raped Eileen Sweeney. Although
this issue was raised on direct appeal, the fact
that the petitioner was subsequently found not
guilty of the rape charge was not part of the
direct appeal record.

73a

4. The judgment and sentence against
petitioner are void or voidable because he did
not receive the effective assistance of counsel
during the penalty phase of his trial. Counsel
fell far below a minimum standard of
reasonable legal representation by numerous
actions and failure to act in violation of his
constitutional rights as guaranteed by the
Fifth, Sixth, Eighth and _ “Fourteenth
Amendments to the United States
Constitution and Sections 2, 9, 10 and 16,
Article |, of the Ohio Constitution.

(App. to Return of Writ, vol. 11, 11.)

Hutton filed an additional petition to vacate on
October 22, 1996, asserting the following claims for
rehief:

1. The failure of defense counsel to adequately
represent the petitioner at the trial or guilt-
innocence determination stage resulted in a
sentence of death that does not comply with
the minimum constitutional standards of
reliability required for the imposition of a
death sentence under the Eighth and
Fourteenth Amendments to the United States
Constitution and Article I §9 of the Ohio
Constitution. The petitioner was denied the
effective assistance of counsel in the trial or
guilt-innocence determination phase as
guaranteed by the Fifth, Sixth and Fourteenth
Amendments to the United States
Constitution and Article I § § 10 and 16 of the
Ohio Constitution.

74a

2. The State of Ohio failed to provide
exculpatory evidence as required by the due
process clause of both the United States and
Ohio Constitutions.

3. The trial court erred by allowing into
evidence other acts testimony that was not
inextricably connected to the offense. This
evidence was unfairly prejudicial as the State
did not establish substantial proof that the
petitioner raped Eileen Sweeney. Although
this issue was raised on direct appeal, the fact
that the petitioner was subsequently found not
guilty of the rape charge was not part of the
direct appeal record.

4. The judgment and sentence against
petitioner are void or voidable because he did
not receive the effective assistance of counsel
during the penalty phase of his trial. Counsel
fell far below a minimum standard of
reasonable legal representation by numerous
actions and failure to act in violation of his
constitutional rights as guaranteed by the
Fifth, Sixth, Eighth and _ Fourteenth
Amendments to the United States
Constitution and Sections 2, 9, 10 and 16,
Article I, of the Ohio Constitution.

5. Appellate review plays an essential role in
eliminating the systemic arbitrariness and
capriciousness which infected death penalty
schemes invalidated by Furman v. Georgia,
408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972). The teaching of Furman was that a
state may not leave the decision of whether a

75a

defendant lives or dies to the unfettered
discretion of the jury because such a scheme
inevitably results in death sentences that are
“wantonly and... freakishly imposed” and
“are cruel and unusual in the same way that
being struck by lightening is cruel and
unusual.” Id. at 309-10. (Stewart, J.,
concurring). Therefore, some form of
meaningful appellate review is required to
assess the sentencer’s imposition of the death

penalty.

*10 6. Petitioner Hutton’s convictions and/or
sentence are void or voidable because the
State of Ohio on appeal failed to prove beyond
a reasonable doubt that any constitutional
error which occurred during Petitioner's trial
did not contribute to the conviction and
sentence of the Petitioner.

(App. to Return of Writ, vol. 11, 49-74.) Hutton filed
an amended petition for post-conviction relief setting
forth these same claims for relief on October 24,
1996. (d. at 121-45, 797 N.E.2d 948.) The trial
court dismissed the petition on July 1, 1997. (/d. at
211, 797 N.E.2d 948.) The court issued its Findings
of Fact and Conclusions of Law on April 6, 1999. (Ud.
at 213-21, 797 N.E.2d 948.)

Hutton appealed the trial court's ruling on his
amended petition on April 27, 1999, raising the
following assignments of error:

1. The trial court erred to the substantial

prejudice of the petitioner by summarily
dismissing his post-conviction pe‘ition without

76a

affording him an evidentiary hearing or
allowing discovery.

2. The Appellant was denied effective
assistance of counsel in the guilt-innocence
determination phase of trial.

3. The failure of the State to provide
exculpatory evidence deprived the Appellant of
his rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States
Constitution.

4. The trial court erred by allowing into
evidence other acts testimony that was not
inextricably connected to the offense.

5. Ineffective assistance of counsel at the
penalty phase of trial deprived the Appellant
of his rights established under the Fifth,
Sixth, Eighth and Fourteenth Amendments to
the United States Constitution.

6. The trial court erred by failing to grant the
Appellant's motions for discovery, an
investigator and expert assistance.

7. Qhio’s post-conviction system does not
comply with the requirements of due process
as guaranteed by the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States
Constitution.

8. The Appellant's convictions and/or
sentences are void or voidable because the
State of Ohio on direct appeal failed to prove
beyond a_ reasonable doubt that any
constitutional error which occurred during

T7a

Appellant’s trial did not contribute to the
conviction and sentence of the Appellant.

9. The Appellant’s sentence is void or voidable
under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States
Constitution. The Appellant’s sentence of
death is inappropriate and disproportionate to
other defendants throughout the State of Ohio
similarly charged. Ohio courts do not engage
in an effective proportionality review as is
required by statute.

(App. to Return of Writ, vol. 12, 21-73.) The Eighth
District Court of Appeals affirmed the decision of the
trial court on July 15, 2004. State v. Hutton, No.
76348, 2004 WL 1575248 (Ohio Ct.App. July 15,
2004).

Hutton timely appealed the Court of Appeals’
decision to the Ohio Supreme Court, advancing the
following propositions of law:

*11 1. Where the affidavits provided in
Petitioner's Motion to Vacate pursuant to R.C.
§ 2953.21 establish a meritorious issue, the
trial court may not dismiss the petition
without an evidentiary hearing.

2. The failure to properly conduct voir dire and
to properly investigate a defendant’s case
constitutes ineffective assistance of counsel
where it can be shown that a_ proper
investigation would reasonably have resulted
in the defendant’s acquittal.

3. The failure of the State to provide
exculpatory evidence deprives a defendant of

78a

his rights under the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States
Constitution.

4. Testimony alleging an unproven rape
allegation may not constitute harmless error,
particularly where a defendant is
subsequently acquitted of that allegation.

5. Defense counsel’s failure to investigate or
make any preparation into the penalty phase
of a capital trial constitutes the constructive
denial of counsel.

6. The trial court must grant reasonable
requests for discovery and experts made
pursuant to R.C. § 2953.21 where such
discovery could reasonably lead to proof of
petitioner’s actual innocence.

7. A reviewing court may not invoke a
harmless error standard where the error is of
such a nature that the integrity of the trial is
placed into question.

8. The petitioner’s sentence is void or voidable
under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States
Constitution. The petitioner's sentence of
death is inappropriate and disproportionate to
other defendants throughout the State of Ohio
similarly charged. Ohio courts do not engage
in an effective proportionality review as is
required by statute.

(App. to Return of Writ, vol. 13, 5-22.) The Ohio
Supreme Court declined jurisdiction to hear the

79a

appeal on December 15, 2004. State v. Hutton, 104
Ohio St.3d 1426, 819 N.E.2d 709 (Ohio 2004).

Hutton filed a second post-conviction petition on
February 2, 2001, raising the following claims for
relief:

1. The failure of defense counsel to adequately

represent the petitioner at the trial or guilt-

innocence determination stage resulted in a

sentence of death that does not comply with

the minimum constitutional standards of

reliability required for the imposition of a

death sentence under the Eighth and

Fourteenth Amendments to the United States

Constitution and Article I §9 of the Ohio

Constitution. The petitioner was denied the

effective assistance of counsel in the trial or

guilt-innocence determination phase _ as
guaranteed by the Fifth, Sixth and Fourteenth

Amendments to the United States

Constitution and Article I §§ 10 and 16 of the

Ohio Constitution. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). The result of the proceeding was

fundamentally unfair or unreliable.

2. Mr. Hutton’s convictions and/or sentences
are void or voidable because he is factually
and actually innocent of the offense of
aggravated murder for which he was convicted
and sentenced to death.

*12 3. The State failed to provide exculpatory
evidence to the petitioner at the time of trial.
Cleveland homicide detectives had spoken to
Bruce Laster and were aware that he was with

80a

the petitioner on the night of the offense and
did not have any knowledge of the petitioner’s
involvement. In fact, the testimony of Mr.
Laster would have directly impeached the
testimony of Samuel Simmons Jr. The
testimony would have absolved the petitioner
of the homicide. The content of Mr. Laster’s
statement to the homicide detectives was not
supplied to the petitioner.

4. The State failed to provide exculpatory
evidence to the petitioner at the time of trial.
Cleveland homicide detectives had spoken to
Bruce Laster and were aware that he was with
the petitioner on the night of the offense and
did not have any knowledge of the petitioner’s
involvement. As this failure was not due to
simple neglect and appears to have been
willful, a lesser standard is required for a
reversal. Napue v. Illinois, 360 U.S. 264, 79
S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

5. The judgment and sentence against
Petitioner Hutton are void or voidable because
he did not receive the effective assistance of
counsel during the penalty phase of his trial.
Counsel fell far below a minimum standard of
reasonable legal representation by numerous
actions and failures to act in violation of his
constitutional rights as guaranteed by the
Fifth, Sixth, Eighth and _ Fourteenth
Amendments to the United ' States
Constitution and Article I §§ 2, 9, 10 and 1

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0736%3A3. Public record. Not legal advice.