Nicholas Schwieterman v. Kevin Smith , 612 F. App'x 825 ( 2015 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0370n.06
Case No. 13-4298
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT May 21, 2015
DEBORAH S. HUNT, Clerk
NICHOLAS SCHWIETERMAN, )
)
Petitioner-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
KEVIN SMITH, Warden, ) OHIO
)
Respondent-Appellee. )
)
____________________________________/ )
Before: MERRITT, MOORE, and DONALD, Circuit Judges.
MERRITT, Circuit Judge. The state prisoner petitioning for habeas relief in this case
was involved in an automobile crash that killed four teenagers. Having no memory of the
accident, the petitioner followed his trial counsel’s advice to “throw himself on the mercy of the
court” by pleading no contest to charges that included four counts of involuntary manslaughter.
After receiving a twenty-four-year sentence, he secured new counsel and commissioned a
scientific reconstruction of the accident that flatly contradicted factual conclusions that had
caused his plea and influenced his sentence. Relying on this reconstruction, he pursued a claim
of ineffective assistance of counsel at the guilty plea level, first through state postconviction
proceedings and then through a federal habeas petition under 28 U.S.C. § 2254. The state failed
to include a crucial piece of the postconviction petition when submitting the state record to the
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federal district court, leaving the district court unable to conduct a complete evaluation of the
habeas petition. Working without this undisclosed reconstruction evidence, the district court
misapplied the law governing the Sixth Amendment guarantee of effective assistance of counsel
during plea bargaining and incorrectly concluded that the facts contested by the petitioner’s
expert reconstruction had no bearing on his habeas petition. Because these untested facts may
control the outcome under clearly established federal law, we reverse the district court’s
dismissal of the Sixth Amendment claim and remand for a hearing beginning with the full state-
court record, including the reconstruction, to determine whether petitioner’s plea counsel was, in
fact, ineffective.
I.
The petitioner, Nicholas Schwieterman, claims a violation of the Sixth Amendment as a
result of his plea counsel’s cursory investigation of a car accident that killed four teenagers.
Schwieterman argues on the basis of an expert affidavit and video reconstruction secured after
sentencing that he and the court relied on a misunderstanding of fundamental facts when he
entered a no contest plea and the court imposed a twenty-four year sentence.
At the time of the accident, Schwieterman was driving under the influence of cocaine,
alcohol, and marijuana, and his passenger was unconscious. They report no memory of the
impact, no one in the other car survived, and no bystanders witnessed the collision. The only
evidence was blood drawn from the two drivers and the wreckage of the vehicles. The police
documented the resting positions of the two vehicles, but their flawed attempts to recover data
from the vehicle sensors destroyed all digital information about the vehicles’ speeds, leaving
only the speedometers from the two cars, Schwieterman’s displaying 12 miles per hour (mph)
and the other showing 84 mph.
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The state advanced a theory primarily based on speculation by firefighters and police
investigators that Schwieterman ran a stop sign and collided directly with the side of the
teenagers’ car, “T-boning” the car and killing its occupants, including the son of one of the
firefighters who responded to the accident. See State v. Schwieterman, No. 10-08-17, 2009 WL
1365087, at *5 (Ohio Ct. App. May 18, 2009) (describing a firefighter who was “apprehended by
his colleagues to prevent him from finding his deceased son in the wreckage”); Sentencing Tr.
77. Schwieterman’s attorneys did not engage in an extensive independent investigation, but
instead retained an expert, Doug Heard, to review the state’s reports. On the basis of Heard’s
document review, Schwieterman’s attorneys recommended that he “throw himself on the mercy
of the court.” He pleaded no contest and was sentenced to four consecutive six-year sentences.
The first forensic analysis—initially presented in support of Schwieterman’s
postconviction petition—tells a different story. After sentencing and with new attorneys,
Schwieterman hired a different expert, Wilbur Meredith, to reconstruct the accident based on the
limited evidence not destroyed by police mishandling. Meredith Aff. ¶¶ 2, 4–10. Meredith
reviewed the state’s reports. Id. at ¶ 3. He also used accident reconstruction software commonly
utilized by the Ohio State Police and other law enforcement agencies to reconstruct the collision
based on data from the police reports, his “personal inspection and measurements at the crash
site and of the two vehicles involved,” photographs taken by himself and the police, and “the
approximate crush dimensions on the two vehicles.” Id. at ¶¶ 9, 12–13.
Through an affidavit filed in state and federal courts, Meredith opines, “beyond any
reasonable doubt and with engineering certainty, . . . this accident was not the result of a ‘T-
Bone’ type crash.” Meredith Aff. ¶ 14. Instead, his affidavit indicates that the two cars collided
at an angle of 45 degrees. Id. at ¶ 15. It also concludes that Schwieterman’s car was traveling at
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12 mph, possibly after stopping at the intersection, and the teenagers’ car was traveling at 84
mph at the time of impact, consistent with the speedometer readings. Id. at ¶¶ 17–18, 20.
Meredith supplemented his affidavit with two sets of video reconstructions of the
collision that he created to illustrate his analysis. The videos illustrate Meredith’s reconstruction
of both the state’s “T-Bone” theory of the accident and Schwieterman’s alternative theory. One
set of videos demonstrates how a collision involving Schwieterman’s car traveling through the
intersection at approximately 12 mph (perhaps after stopping) and the teenagers’ car traveling at
84 mph could result in the vehicle placement documented by the state investigators. The other
set shows a “T-Bone” style crash such as the one suggested by the state that results in a
dramatically different placement. Although Schwieterman filed these videos on a DVD with the
state postconviction court, the state did not include them in the record it provided to the habeas
district court.
We take no position on the persuasiveness of these videos, which have never been subject
to an evidentiary hearing. The state’s failure to provide them along with the rest of the state
postconviction records deprived the district court of important evidence that it needed to properly
analyze Schwieterman’s petition. We leave the first full analysis of this evidence to the district
court on remand and turn to the legal question still before us.
II.
After unsuccessfully pursuing direct appeals and postconviction relief in the state courts,
Schwieterman filed a habeas petition on June 10, 2011, raising several issues. The district court
rejected each of his claims, and only an ineffective assistance of counsel claim focused on the
plea stage was certified for review.
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The district court first concluded that the ineffective assistance claim was foreclosed by
procedural default. After the state postconviction trial court rejected Schwieterman’s ineffective
plea assistance claim, State v. Schwieterman, No. 08-CRM-022, slip op. at 6–7 (Ohio Ct. Com.
Pl. July 23, 2009) (relying on an earlier analysis of actual innocence to find an absence of
prejudice), the state appeals court affirmed the result through a sua sponte invocation of res
judicata. State v. Schwieterman, No. 10-09-12, 2010 WL 169192, at *8–10 (Ohio Ct. App. Jan
19, 2010). The district court credited the state appellate court’s determination that the claim
could and should have been raised on direct appeal and incorrectly concluded that the state
court’s anomalous application of that procedural rule triggered procedural default as an
independent, adequate state ground for denying further review.
This ruling was in error. An analysis of procedural default begins by determining
whether “the petitioner failed to comply with an applicable state procedural rule.” Hanna v.
Ishee, 694 F.3d 596, 607 (6th Cir. 2012). A state rule must be “firmly established and regularly
followed” before its violation can trigger procedural default of a federal habeas claim. Walker v.
Martin, 562 U.S. 307, ___, 131 S. Ct. 1120, 1127–28 (2011) (quoting Beard v. Kindler, 558 U.S.
53, 60 (2009)). Thus, if Schwieterman actually complied with Ohio law by first raising his
ineffective assistance claim through a postconviction petition, that claim is not procedurally
defaulted.
When claims cannot be adjudicated on the trial record alone, Ohio law does not require
defendants to raise those issues on direct appeal where they would necessarily fail for lack of
evidence. See State v. Cooperrider, 448 N.E.2d 452, 454 (Ohio 1983); State v. Cole, 443 N.E.2d
169, 171 (Ohio 1982). Instead, Ohio law prescribes the parallel paths Schwieterman took:
directly appealing the issues supported by the record and bringing a separate collateral petition to
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address issues that required further factual development. Cole, 443 N.E.2d at 171; State v.
Gibson, 430 N.E.2d 954, 959–60 (Ohio Ct. App. 1980) (Krenzler, C.J., concurring). The legal
distinction between claims appropriate for direct appeal and those reserved for a collateral
petition is not whether Schwieterman was aware of the alleged constitutional deprivations but
whether those claims “could fairly be determined without examining evidence outside the
record.” Cole, 443 N.E.2d at 171. Compare with Schwieterman, 2010 WL 169192, at *9 (“[A]ll
of these claims contain issues that Schwieterman was aware of, or should have been aware of, at
the time of his appeal, yet he failed to assert any of these claims in his direct appeal from his
conviction and sentence.”).
Schwieterman’s claim of ineffective assistance falls in the second category because, like
most ineffective assistance of counsel claims, it cannot be evaluated without examining evidence
outside the initial record of the plea and sentencing. Compare Cole, 443 N.E.2d at 171
(“Generally, the introduction . . . of evidence dehors the record of ineffective assistance of
counsel is sufficient, if not to mandate a hearing, at least to avoid dismissal on the basis of res
judicata.”), with Schwieterman, 2010 WL 169192, at *8 (disregarding the petition’s reliance on
evidence outside the record). Ohio Court of Appeals decisions applying Cole’s test reveal that at
a minimum, Meredith’s affidavit would likely qualify as evidence “dehors the record” necessary
to bring Schwieterman’s claim. In order to evaluate Schwieterman’s claim, it is necessary to
know what an expert would have concluded about the accident. See, e.g., In re B.C.S., No.
07CA60, 2008 WL 4823572, at *11 (Ohio Ct. App. Oct. 29, 2008) (“In support of his
postconviction claims, . . . Sturm presents his trial counsel’s affidavit and supporting documents,
including expert reports. We believe that this constitutes competent, relevant and material
evidence outside the record sufficient to avoid operation of the res judicata doctrine. While the
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record shows that defense counsel did not call these experts, it does not indicate his motivation in
failing to call these experts or what testimony the experts would have provided to the jury.”
(emphasis added)); State v. Jenkins, No. 2003-CA-1, 2003 WL 21995250 at *7 (Ohio Ct. App.
Aug. 22, 2003) (“Jenkins’ ineffective assistance of counsel claim based on his attorney’s failure
to have an expert witness critique police interviews with his accusers required the presentation of
evidence outside the trial record. Although the trial record revealed that no such expert was
called, the trial record did not reveal why defense counsel failed to call an expert or what
testimony such an expert would have provided for the jury. . . . Without record evidence setting
forth what such an expert would have told the jury, he could not demonstrate prejudice.”
(emphasis added)).
Schwieterman complied with Ohio law regarding constitutional challenges that require
evidence outside a record of conviction. He complied with the firmly established procedural
rules of the state, and the state court’s deviation from those firmly established rules does not
constitute default by Schwieterman. Because federal law does not permit “novel and
unforeseeable” applications of state procedural rules to thwart federal review of habeas claims,
Walker, 562 U.S. at ___, 131 S. Ct. at 1130, the state’s irregular invocation of res judicata in this
case is not an adequate independent state ground barring federal review. We therefore consider
the merits of Schwieterman’s claim.
Counsel is ineffective under the Sixth Amendment if objectively deficient performance
prejudices a criminal defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). A
petitioner asserting ineffective assistance following a guilty (or no contest) plea shows prejudice
by demonstrating “a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
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(1985). Thus, the proper standard for ineffective assistance through failure to investigate is
merely the likelihood that investigation would have led to a different recommendation and
decision regarding the plea. Id.; Dando v. Yukins, 461 F.3d 791, 802 (6th Cir. 2006).
In its limited merits analysis, conducted out of “an abundance of caution” following its
conclusion that res judicata barred Schwieterman’s petition, Mem. Op. 16, the district court
erroneously concluded that “[Schwieterman]’s burden is to show that, had he gone to trial armed
with the report of the expert attached to his post-conviction petition, the ultimate outcome would
have been different.” Id. at 20 (emphasis added). But Schwieterman’s burden is less onerous.
The relevant “ultimate outcome” in this case is not the result of a speculative trial but the more
immediate decision about the recommended plea. Speculation about trial outcomes is relevant,
but only insofar as the likely trial outcome would influence an objective decision to abandon the
investigation and enter a plea.
Instead of asking whether reasonable counsel and a reasonable defendant would have
accepted the state’s facts and entered a no contest plea after reviewing the expert reconstruction,
the district court used an actual-innocence standard from an unpublished district court opinion
and dismissed the claim because the reconstruction would not “make it impossible for a
reasonable jury to convict.” Id. (quoting United States ex rel. Blair v. Rednour, No. 11-cv-4108,
2012 WL 1280831, at *6 (N.D. Ill. Apr. 11, 2012)). The district court found Schwieterman
failed to meet this irrelevant actual-innocence standard of prejudice and rejected his Sixth
Amendment claim on the merits without addressing the deficient-performance prong of the
ineffective assistance analysis.
Accordingly, the judgment of the district court is reversed as to the ineffective assistance
of counsel claim, and the case is remanded to the district court to determine whether the
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petitioner’s plea counsel was ineffective in light of the postconviction expert evidence
concerning how the accident occurred, including the video reconstruction evidence mistakenly
witheld from the district court.
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