Sean Carter v. Bobby Bogan

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 18a0175p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SEAN CARTER, ┐
Petitioner-Appellant, │
│
> No. 16-3474
v. │
│
│
BOBBY BOGAN, JR., Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Toledo.
No. 3:02-cv-00524—Benita Y. Pearson, District Judge.
Argued: July 24, 2018
Decided and Filed: August 20, 2018
Before: COLE, Chief Judge; BOGGS and ROGERS, Circuit Judges.
_________________
COUNSEL
ARGUED: Rachel Troutman, OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus,
Ohio, for Appellant. Christopher S. Ross, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: Rachel Troutman, Kandra Roberts, OFFICE OF
THE OHIO PUBLIC DEFENDER, Columbus, Ohio, John P. Parker, Cleveland, Ohio, for
Appellant. Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee.
_________________
OPINION
_________________
BOGGS, Circuit Judge. In September 1997, Sean Carter raped and killed Veader Prince,
his adoptive grandmother. State v. Carter, 734 N.E.2d 345, 347 (Ohio 2000). Prior to trial,
No. 16-3474 Carter v. Bogan Page 2
Carter’s competency twice became a topic of controversy, leading to two hearings on the matter.
Id. at 355–56. Both times, Carter was deemed competent to stand trial. Ibid. Carter was
subsequently found guilty of aggravated murder and of two capital specifications and was
sentenced to death. Id. at 350. Having exhausted his state-court appeals, Carter now brings this
habeas corpus petition, alleging that he was incompetent at both the guilt and penalty phases of
his trial and that his counsel were constitutionally ineffective. The district court denied the
petition, Carter v. Bradshaw, No. 3:02CV524, 2015 WL 5752139, at *1 (N.D. Ohio Sept. 30,
2015), and for the following reasons, we affirm.
I
A
In 1981, when he was 18 months old, Sean Carter (“Carter”) was removed from his birth
mother following a referral to a children service’s agency in Trumbull County, Ohio. Carter,
734 N.E.2d at 347, 359. When a caseworker investigated, she found Carter’s mother—who
suffered from schizophrenia—to be incoherent and Carter to be dirty, suffering from an enlarged
stomach, and tied by his ankle to the leg of a couch. Id. at 359. After passing through several
foster homes, Carter was eventually adopted by Evely Prince Carter when he was ten years old.
Id. at 347, 359. However, in February 1997, just shy of Carter’s eighteenth birthday, Evely
Prince Carter threw him out of her home, leading Carter to go live with her mother, Veader
Prince (“Prince”). Id. at 347. And there he stayed until his incarceration in July for theft. Ibid.
On September 13, 1997, Prince returned home to an unwelcome surprise. Unbeknownst
to her, Carter had been released from jail and had let himself into her home. Id. at 347. Upon
discovering him, Prince directed her son, who was with her at the time, to give Carter the keys
and title to his car; she then told Carter not to come back. Id. at 348–49. The Supreme Court of
Ohio summarized the subsequent events:
According to Carter’s confession, after he obtained the car keys from [the
victim’s son], he left Prince’s house and drove around for a while. He attempted
to stay at his aunt’s house, but could not. He returned to Prince’s house and, since
the door was locked, climbed through the bedroom window. He had called out to
Prince, hoping to convince her to allow him to stay there for a week. They got
No. 16-3474 Carter v. Bogan Page 3
into an argument and Prince told him to leave. He kept telling her that he had
nowhere to go.
She tried to push him out the door and he started to beat her. At some point, he
got a knife from the kitchen and started stabbing her. He described it as just
“going off” and could not provide exact details of what happened during the
assault, although he did remember hitting her in the face and stabbing her in the
neck.
The next thing Carter remembered was being in the kitchen and washing his
hands and the knife. He walked downstairs and saw Prince on the basement floor
and then started to cover things up. He covered her with some clothes, moved the
couch in her bedroom to cover up blood on the carpet, turned the water on in her
bathroom and closed the door, and put a chicken in a pot on the stove and turned
the stove on. He left a note on the kitchen table saying, “Took Sean to the
hospital” in case someone saw blood in the house. He changed his clothes, since
they were bloody. He then took about $150 from her purse and left.
He originally took her keys, thinking he would take one of her vans, and actually
put his bag of clothes in the van, but could not get the van started. He got into
[the victim’s son’s] car and drove off. Since he did not have a license plate, he
stopped to steal a plate from a car in Garrettsville. To remove and transfer the
plates to his car, he used the knife that he had stabbed his grandmother with.
Id. at 349–50.
Late in the evening of September 14, Prince’s body was discovered by her children. Id.
at 348. An autopsy revealed that she had been stabbed 18 times, had suffered blunt-force trauma
to the head, and had been anally raped. Id. at 349. Semen found in the victim’s anus was later
positively identified as Carter’s. Id. at 353.
The next day, Carter was detained by police in Beaver County, Pennsylvania, and, after
being given his Miranda warnings, he confessed to Prince’s murder. Id. at 349. He was
subsequently extradited to Ohio, where he was indicted for, inter alia, one count of aggravated
murder with three capital specifications, namely, aggravated burglary, aggravated robbery, and
rape. Id. at 350.
Prior to trial, a competency hearing was held at the request of defense counsel. Because
Carter had attempted to commit suicide “several” times while in custody, his arms and legs were
shackled throughout the proceedings, and he was guarded by three members of the Trumbull
County Sheriff’s Department. Despite these circumstances, the court concluded that Carter was
No. 16-3474 Carter v. Bogan Page 4
competent to stand trial based upon the testimony of Dr. Stanley Palumbo, a court-appointed
licensed psychologist. Id. at 355. According to Palumbo,
[w]ith reasonable scientific certainty[,] Mr. Carter [was] competent to stand trial.
Mr. Carter underst[ood] the nature of the proceedings against him and d[id] not
suffer from any gross mental disorder that would [have] interfere[d] with his
ability to participate in his defense. He d[id] not suffer from any mood disorder
such as depression, which would [have] cause[d] him to have trouble following a
witness’s line of statements or [not] have the energy and interest in participating
in his own defense in his own best interest.
Ibid. In its findings of fact, the court further noted that while “Palumbo testified that the
Defendant does not trust his attorney, or any other attorney . . . Defendant’s distrust of his
attorney does not exhibit paranoid behavior since he distrusts all attorneys and not specifically
his attorney.” Ibid.
Shortly thereafter, Carter entered a plea of not guilty by reason of insanity. Ibid. In
advance of the trial, the defense hired Dr. Steven A. King to assess Carter’s mental state at the
time of the crime. While interviewing Carter, King became concerned that Carter was not
competent to stand trial based upon “several subtle signs of a psychotic disorder”—such as
inappropriate laughter and auditory and visual hallucinations—as well as Carter’s musing about
killing Anthony Consoldane, one of his trial counsel. Following a motion by Carter’s counsel, a
second competency hearing was held on February 26, 1998.
At the hearing, three experts—King, Palumbo, and forensic psychiatrist Dr. Robert
Alcorn—testified. Id. at 355–56. While King reiterated his diagnosis that Carter was
incompetent—specifically, due to “his paranoia, his hostility and his inability to cooperate in his
defense”—he acknowledged that “this was a close call, this is a subtle case.” 1 Palumbo and
Alcorn, however, disagreed. Palumbo, who had examined Carter on four different occasions,
testified that Carter understood the charges against him, at no time seemed to be responding to
auditory or visual hallucinations, and did not demonstrate confusion or agitation. Palumbo
1During oral arguments, Carter’s habeas counsel stated that King had merely described the question of
Carter’s mental illness as a “close call.” While this is technically correct, in his competency report, King wrote, “as
a result of Mr. Carter’s psychosis, he is presently not capable of assisting his defense.” (Emphasis added). Logic
therefore dictates that King also viewed the question of competence to be a “close call.”
No. 16-3474 Carter v. Bogan Page 5
further attributed Carter’s anger towards his attorneys to personality issues and to “questions
about his attorneys proceeding for him on his behalf.” Alcorn echoed Palumbo’s assessment,
opining that Carter was aware of the nature of the proceedings against him, that Carter had
attempted to feign signs of mental illness during one of his interviews, and that Carter’s
antipathy towards Attorney Consoldane was related to Carter’s assessment of Consoldane’s
performance. At the conclusion of the hearing, the trial court once again found Carter competent
to stand trial, noting that even King had acknowledged that the issue was borderline and that a
defendant’s distrust of or hostility towards his attorney does not necessarily equate with
incompetence. Id. at 356.
Two weeks later, during the trial’s opening statements, Carter interrupted defense counsel
to express his desire to plead guilty. After the statements concluded, a brief recess was held, at
which time Carter informed the court that he did not wish to attend the proceedings. Initially, the
trial judge stated that he would hold off on deciding that matter, as he wished to research the
issue to ensure that Carter’s rights were adequately protected. Carter was, however, insistent that
he did not want to attend the trial; and after asking whether he would be removed if he “acted
up” in court, he lunged at the judge. The court described the ensuing events:
[w]hat happened is basically the Defendant lost complete control, indicated to the
Court that he would act up and, in fact, proceeded to jump around, went crazy
causing the deputies, four deputies to restrain him and put him in leg irons. And
he struggled very violently with them. And he has promised to the Court that he
intends to continue that type of activity throughout the trial if he’s required to be
here.
Defense counsel agreed with this characterization of the incident and stipulated that until Carter
could control himself, Carter would monitor the proceedings via television in a separate room.
The trial judge then directed defense counsel to inform the court if Carter changed his mind
about attending the proceedings.
On March 20, 1998, Carter was convicted of one count of aggravated murder and of two
capital specifications, namely, that the murder was committed in connection with rape and in
connection with aggravated robbery. Id. at 350. Following a penalty hearing, the jury
No. 16-3474 Carter v. Bogan Page 6
recommended a sentence of death; and on April 2, 1998, the trial court adopted the jury’s
recommendation.2 Ibid.
Represented by new counsel, Carter immediately appealed his conviction and sentence,
raising fourteen propositions of law; for purposes of this appeal, however, only two are relevant.
Proposition of Law No. 4
U.S. Const. amend. XIV and Ohio Const. art. I, §§ 1, 2, and 16, require [the] trial
court, when presented with bona fide evidence and good faith claims that a
criminal defendant is incompetent to stand trial, to examine all reasonably
available evidence.
Proposition of Law No. 5
Ineffective assistance of counsel violates not only a capital defendant’s rights to
effective counsel under U.S. Const. amend. VI and XIV[,] and Ohio Const. art. I,
§§ 1 and 10; but also rights to a fair and impartial jury trial and a reliably
determined sentence, as guaranteed by [ ] U.S. Const. amend.[ ] V, VI, VIII, and
XIV and by Ohio Const.[ ] art. I, §§ 5, 9, 10, and 16.
Carter, 2015 WL 5752139, at *5 (alterations in original). As part of the latter proposition of
law, Carter argued that trial counsel were constitutionally ineffective because they failed to
accept the trial court’s offer of MRI testing for Carter.
On September 13, 2000, the Supreme Court of Ohio affirmed Carter’s conviction and
death sentence. Carter, 734 N.E.2d at 350. With respect to the former proposition of law, the
court noted that Carter’s argument focused solely on his alleged inability to assist counsel during
the proceedings. Id. at 355. After a careful review of the record—during which it emphasized
that two experts had found Carter to be competent, while the third had characterized the issue as
a “close call”—the court concluded that “[t]he trial court’s findings of fact fail to support
Carter’s claim that the court’s [competency] decision was unreasonable, arbitrary, or
unconscionable.” Id. at 356. As regards Carter’s ineffective-assistance-of-counsel claims, the
Supreme Court of Ohio held that they were “speculative” given the record. Id. at 356–57. For
instance, concerning Carter’s claim regarding the failure to pursue MRI testing, the court noted
2Carter was also convicted of aggravated robbery, rape, and the lesser-included offense of criminal trespass
on the aggravated-burglary charge. Carter, 734 N.E.2d at 350. The court sentenced Carter to 30 days of
imprisonment for criminal trespass, ten years for aggravated robbery, and ten years for rape, with the latter two
sentences running consecutively.
No. 16-3474 Carter v. Bogan Page 7
that there was no way to know whether Carter had been prejudiced by counsels’ decision absent
the forgone MRI; and because the claim required extrarecord evidence, it could “not
appropriately [be] considered on direct appeal” under Ohio law. Id. at 357.
B. State-Court Postconviction Proceedings
While his direct appeal was pending, Carter also filed a “petition to vacate or set aside
conviction,” which the trial court interpreted as a petition for postconviction relief. State v.
Carter, No. 99-T-0133, 2000 Ohio App. LEXIS 5935, at *2 (Ohio Ct. App. Dec. 15, 2000). In
relevant part, Carter raised the following causes of action:
SECOND CAUSE OF ACTION
Petitioner was incompetent to stand trial because his paranoid personality did not
permit him to trust his lawyers. He therefore could not and did not work
cooperatively with counsel, a basic component of competence to stand trial.
Further, counsel was physically afraid of Petitioner, which resulted in a
diminution of the attorney-client relationship, and counsel failed to present out of
court evidence by an expert witness who acknowledged that counsel could not
possibly have an effective working relationship with Petitioner.
...
Petitioner’s trial counsel failed to (a) present all evidence of Petitioner’s
incompetence; (b) make a complete record on Petitioner’s behalf so that Petitioner
could defend his life and liberty on appeal if convicted; and (c) present, through
direct or cross examination, all expert evidence of Petitioner’s incompetence to
stand trial.
FIFTH CAUSE OF ACTION
Petitioner’s trial counsel violated the duty to conduct [an investigation of possible
mitigating factors] by:
(A) failing to fully investigate Petitioner’s medical and social history; and
(B) failing to hire a mitigation expert to assist in discovery of relevant
information.
On August 30, 1999, the trial court dismissed the petition without a hearing, finding that Carter
“ha[d] failed to show substantive grounds for relief as to any of the claims set forth” therein. See
ibid. Specifically, the court held that the aforementioned causes of action were barred by the
doctrine of res judicata, as the issues had been or could have been raised before the Supreme
Court of Ohio on direct appeal. In the alternative, the court found that dismissal of the claims
No. 16-3474 Carter v. Bogan Page 8
without a hearing was warranted because Carter had failed to “submit[] evidentiary documents
which contain sufficient facts to demonstrate the denial of a constitutional right and resultant
prejudice[.]”
On September 29, 1999, Carter appealed the postconviction trial court’s decision,
alleging two errors.
Assignment of Error No. 1
The trial court erred in denying appellant an evidentiary hearing on his petition
for post-conviction relief, thus depriving appellant of liberties secured by U.S.
Const. amend. VI and XIV, and Ohio Const. art. I [§§] 1, 2, 10, and 16, including
meaningful access to the courts of this State.
Assignment of Error No. 2
The trial court erred in applying the principles of res judicata, thus depriving
appellant of liberties secured by U.S. Const. amend. VI and XIV, and Ohio Const.
art. I, [§§] 1, 2, 10, and 16.
Id. at *2–3. On December 15, 2000, the Court of Appeals of Ohio affirmed the judgment of the
trial court, holding that the first assignment of error was “without merit” and, therefore, that the
second one was moot. Id. at *13. In doing so, the court noted that (1) it did not appear that
Carter’s counsel performed inadequately during the mitigation phase of the trial and (2) Carter
had not submitted evidentiary documents that would have entitled him to a hearing on his claim
of ineffective assistance of counsel during the mitigation phase. Id. at *10, 13. Once again,
Carter appealed the decision,3 but on May 2, 2001, the Supreme Court of Ohio declined
jurisdiction and dismissed the case as not involving any substantial constitutional question. State
v. Carter, 746 N.E.2d 612 (Ohio 2001) (Table).
Nearly one-and-three-quarters years later, Carter filed an application with the Supreme
Court of Ohio to reopen his direct appeal on the grounds that he had been denied effective
3On appeal, Carter raised the following propositions of law:
Proposition of Law No. 1
Denial of an Evidentiary Hearing Where a Petition for Post-Conviction relief States Operative
Facts is a denial of meaningful access to the courts of this State in contravention of Ohio Const.
art. I, §§[]1 and 16; U.S. Const. amend[.] XIV.
Proposition of Law No. 2
Res judicata may not be applied to defeat claims raised in a post-conviction petition where a direct
appeal is still pending and the matters raised in the petition have not been previously adjudicated.
No. 16-3474 Carter v. Bogan Page 9
assistance of appellate counsel. In particular, Carter alleged that appellate counsel had failed to
raise “all instances of prosecutorial misconduct and ineffective assistance of [trial] counsel, and
the failure of the trial court to ensure that Mr. Carter was competent to stand trial and to
safeguard his right to be present.” On March 19, 2003, the court denied the application without
discussion. State v. Carter, 785 N.E.2d 470 (Ohio 2003) (Table).
C. Federal Habeas Corpus Proceedings
In March 2002, prior to Carter’s filing an application to reopen his direct appeal, the
Office of the Ohio Public Defender (“OPD”) initiated habeas corpus proceedings on the
Petitioner’s behalf by filing a suggestion of incompetence. In its application, the OPD noted that
Carter—who, at that time, may have waived further review of his case and have volunteered for
execution—was then being held at a facility for inmates with severe mental illness and that his
case worker had said that Carter was mentally ill. Because Carter was not represented by
counsel and had refused to meet with the office’s representatives, the OPD simultaneously filed a
motion for the appointment of counsel and an ex parte motion for the appointment of a mental-
health expert to determine whether Carter was competent to waive federal review of his
conviction and death sentence. The district court granted the motions, and on May 1, 2002,
habeas counsel filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on
Carter’s behalf. In July 2002, counsel withdrew OPD’s ex parte request after Carter met with
them and stated that he wanted to pursue his case in federal court with their representation.
Carter, who amended his petition three times between May 2002 and October 2005,
raised nine claims on habeas review.
GROUND FOR RELIEF ONE
Sean Carter was incompetent at both the culpability and penalty phases of his
trial. Therefore, his convictions and sentence of death are in violation of his
rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution.
GROUND FOR RELIEF TWO
Sean Carter’s right to effective assistance of counsel during the mitigation phase
was violated when counsel failed to investigate, prepare, and present relevant
mitigating evidence. U.S. Const. amend[ ]. VI, VIII, XIV.
No. 16-3474 Carter v. Bogan Page 10
GROUND FOR RELIEF THREE
Sean Carter’s rights to a fair trial and an impartial jury were violated by
prosecutor misconduct at the culpability phase of Mr. Carter’s trial. U.S. Const.
amend. VI and XIV.
GROUND FOR RELIEF FOUR
The trial court denied Sean Carter his rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution by failing to instruct
the jury properly at the conclusion of the culpability phase.
GROUND FOR RELIEF FIVE
Sean Carter was denied his right to the effective assistance of counsel under the
Sixth and Fourteenth Amendments to the United States Constitution when his
attorneys failed to object and properly preserve numerous errors that occurred
during the pre-trial proceedings and the culpability phase of the trial.
GROUND FOR RELIEF SIX
Sean Carter was denied the effective assistance of counsel in his direct appeal as
of right, in violation of his rights under the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
GROUND FOR RELIEF SEVEN
The death penalty as administered by lethal injection in the state of Ohio violates
Sean Carter’s rights to protection from cruel and unusual punishment and to due
process of law as guaranteed by the United States Constitution amend [ ]. VIII
and XIV.
GROUND FOR RELIEF EIGHT
Sean Carter is seriously mentally ill. Therefore, his death sentence is in violation
of his rights under the Eighth and Fourteenth Amendments.
GROUND FOR RELIEF NINE
Sean Carter will not be competent and sane to be executed. Sean’s execution
while he is incompetent and insane, violates the Eighth and Fourteenth
Amendments to the United States Constitution.
Carter, 2015 WL 5752139, at *10 (alterations in original). On the same day that Carter filed his
third amended petition, he also filed a motion to expand the record and moved for a competency
determination and to stay the proceedings.
In late November 2005, the district court granted Carter’s motion for a competency
determination, and granted in part and denied in part his motion to expand the record. Of
particular note, the court refused to expand the record to include (1) an affidavit from Ida Magee,
who served as Carter’s foster mother prior to his adoption by Evely Prince Carter, (2) a
No. 16-3474 Carter v. Bogan Page 11
psychosocial history of Carter prepared by Albert Linder, a psychiatric social worker, (3) a letter
from psychologist Dr. Douglas Darnall that detailed Carter’s mental illness, (4) an April 1994
chemical-dependency assessment of Carter by the Portage County Juvenile Court, and (5) a
March 1995 Department of Youth Services evaluation. The court’s refusal was based on the
grounds that Carter had not been diligent in presenting that evidence to the Ohio courts. See
28 U.S.C. § 2254(e)(2).
Five months later, on May 1, 2006, the district court finally conducted a hearing to
determine whether Carter was competent to proceed with his habeas petition. The next day, the
court ordered Carter’s counsel to arrange for both parties’ experts to observe habeas counsels’
interactions with Carter, presumably to assess his purported “inability to communicate with
counsel in a meaningful way concerning the facts and issues in his case.” After the court denied
Carter’s objection to the order—specifically, that it threatened to violate his attorney-client
privilege—he sought a Certificate of Appealability (“COA”), pursuant to 28 U.S.C. § 1292(b).
And although the district court also denied Carter’s motion to certify the appeal, it granted his
request to stay discovery pending a resolution of the issue by the Sixth Circuit. In November
2007, we granted Carter’s request for mandamus relief and set aside the district court’s order.
In September 2008, nearly three years after Carter filed his motion for a competency
determination, the district court held that the Petitioner was incompetent to proceed with his
federal habeas litigation. Carter v. Bradshaw, 583 F. Supp. 2d 872, 873 (N.D. Ohio 2008),
vacated, 644 F.3d 329 (6th Cir. 2011), rev’d Ryan v. Gonzales, 568 U.S. 57 (2013). According
to the district court, Carter was incompetent because he was unable to assist habeas counsel in
developing the removal-from-trial, competency, and ineffective-assistance-of-counsel claims that
were raised in his petition. The court based this finding on its determination that Carter:
could not reasonably be expected to recall and describe how well he was able to
view the trial once he was removed from it . . . , [ ] would be unable to elaborate
on conversations he had with defense counsel regarding his competency . . .
[, and] does not have the present capability to judge and express to habeas counsel
what mitigating evidence from his social and family background defense counsel
should have introduced during the sentencing phase of trial because of his limited
capacity to recall and convey the details about any such events.
No. 16-3474 Carter v. Bogan Page 12
Carter, 583 F. Supp. 2d. at 882.4 The court accordingly dismissed the case without prejudice
and prospectively tolled the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). Id.
at 884–85.
On appeal, a panel of this court amended the district court’s judgment, directing that
Carter’s habeas proceedings be stayed with respect to those claims for which Carter’s assistance
was “essential.” Carter, 644 F.3d at 337. It did so on the grounds that pursuant to 18 U.S.C.
§ 4241, federal habeas petitioners facing the death penalty for state criminal convictions have a
statutory right to competence. Ibid. The Supreme Court subsequently granted certiorari “to
determine whether § 4241 provide[d] a statutory right to competence in federal habeas
proceedings.” Gonzales, 568 U.S. at 64.
On January 8, 2013, the Supreme Court unanimously vacated the judgment of the Sixth
Circuit. Gonzales, 568 U.S. at 77. In so doing, the Court also addressed Carter’s argument that
the stay was a proper exercise of the Northern District of Ohio’s “equitable power to stay
proceedings when [it] determine[s] that habeas petitioners are mentally incompetent.” Id. at 73.
“For purposes of resolving the[] case[],” the Court noted that Carter’s first, second, and fifth
habeas claims had been “adjudicated on the merits in state postconviction proceedings and, thus,
were subject to review under [28 U.S.C.] § 2254(d).” Id. at 74, 75, 75 n.15–16. Accordingly,
the Court concluded that these claims did not warrant a stay because “[a]ny extrarecord evidence
that Carter might have concerning [them] would be . . . inadmissible.” Id. at 75 (citing Cullen v.
Pinholster, 563 U.S. 170, 181 (2011)).
Upon remand, the district court denied Carter’s petition for a writ of habeas corpus.
Carter, 2015 WL 5752139, at *1. Having done so, the court then issued a COA as to Carter’s:
(1) “First ground for relief regarding his competency to stand trial,” (2) “Second ground for relief
relating to his trial counsel’s ineffective assistance during the mitigation phase of trial,” and
(3) “Fifth ground for relief relating to his trial counsel’s ineffective assistance regarding his
competency to stand trial.” Id. at *52. We subsequently denied Carter’s application to expand
the COA and his request that we order both a competency evaluation and a limited stay in the
4The district court also stated that it was “inclined” to find that “Carter’s mental illness prevent[ed] him
from truly comprehending the nature of the habeas proceedings.” Carter, 583 F. Supp. 2d at 881.
No. 16-3474 Carter v. Bogan Page 13
proceedings. Accordingly, only the aforementioned three issues are before this court. See
28 U.S.C. § 2253(c).
II
When reviewing a district court’s grant or denial of a petition for a writ of habeas corpus,
we examine its conclusions of law de novo and its factual findings for clear error. Hand v. Houk,
871 F.3d 390, 406 (6th Cir. 2017). Additionally, because Carter filed his habeas petition after
1996, the scope of our review is further restricted by the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), Stojetz v. Ishee, 892 F.3d 175, 190 (6th Cir. 2018), which was designed
to “prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to
the extent possible under law[,]” Bell v. Cone, 535 U.S. 685, 693 (2002).
Among other things, AEDPA limits the circumstances under which we may grant a writ
of habeas corpus with respect to any claim that was adjudicated on the merits in a state court.
See 28 U.S.C. § 2254(d). More specifically, under AEDPA, we may grant a writ only if 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.
Ibid. A state court’s adjudication of a claim is “contrary to” clearly established federal law “if
the state court arrives at a conclusion opposite to that reached 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.” Stojetz, 892 F.3d at 192 (quoting Van Tran v. Colson,
764 F.3d 594, 604 (6th Cir. 2014)). In contrast, an “unreasonable application” of clearly
established federal law occurs where “the state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the
facts of the [petitioner’s] case.” Williams v. Taylor, 529 U.S. 362, 413 (2000). For purposes of
AEDPA, “clearly established federal law” only “refers to the holdings, as opposed to the dicta, of
[the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Lockyer v.
Andrade, 538 U.S. 63, 71 (2003) (quoting Williams, 529 U.S. at 412).
No. 16-3474 Carter v. Bogan Page 14
To be clear, “an unreasonable application of federal law is different from an incorrect
application of federal law.” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Williams,
529 U.S. at 410). Stated more bluntly, under the “unreasonable application” clause of
§ 2254(d)(1), it does not matter whether a federal habeas court might “conclude[] in its
independent judgment that the [state court] applied clearly established federal law erroneously or
incorrectly[.]” Gagne v. Booker, 680 F.3d 493, 513 (6th Cir. 2012) (en banc) (first two
alterations in original) (quoting Williams, 529 U.S. at 411). Rather, a federal habeas court may
issue the writ pursuant to this clause only where the relevant state-court decision applied clearly
established federal law in an objectively unreasonable manner, Lett, 559 U.S. at 773, i.e., only
where “the state court’s ruling . . . was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement[,]” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Review under § 2254(d)(1) is limited in two additional, important ways. First,
notwithstanding the language of 28 U.S.C. § 2254(e)(2), review is restricted to the record that
was before the court that adjudicated the claim on the merits. Pinholster, 563 U.S. at 181, 184.
Second, when determining whether the “unreasonable application” standard is met, courts must
consider the rule’s specificity; that is because “the range of reasonable judgment can depend in
part on the nature of the relevant rule.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).
“The more general the rule, the more leeway courts have in reaching outcomes in case-by-case
determinations.” Ibid.
As regards 28 U.S.C § 2254(d)(2), it too imposes a highly deferential standard when
reviewing claims of factual error by a state court. See Burt v. Titlow, 571 U.S. 12, 18 (2013).
The Supreme Court has been clear that “a state-court factual determination is not unreasonable
merely because the federal habeas court would have reached a different conclusion in the first
instance.” Ibid. (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Stated differently, it is not
enough that reasonable minds reviewing the record might disagree with the state court’s factual
determination; rather, the record must “compel the conclusion that the [state] court had no
permissible alternative” but to arrive at the contrary conclusion. Rice v. Collins, 546 U.S. 333,
341–42 (2006) (emphasis added). Equally important, “it is not enough for the petitioner to show
No. 16-3474 Carter v. Bogan Page 15
some unreasonable determination of fact; [additionally], the petitioner must show that the
resulting state court decision was ‘based on’ that unreasonable determination.” Rice v. White,
660 F.3d 242, 250 (6th Cir. 2011) (emphasis added).5
III
A
It is well-established that “the criminal trial of an incompetent defendant violates due
process.” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quoting Medina v. California,
505 U.S. 437, 453 (1992)); see also Drope v. Missouri, 420 U.S. 162, 171 (1975). It is equally
well-established that one who lacks either a “sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding” or “a rational as well as factual
understanding of the proceedings against him” is not competent to stand trial. Dusky v. United
States, 362 U.S. 402, 402 (1960) (per curiam). Accordingly, where there is substantial doubt as
to a defendant’s “capacity to understand the nature and object of the proceedings against him, to
consult with counsel, and to assist in preparing his defense[,]” Drope, 420 U.S. at 171, a trial
court “must sua sponte order an evidentiary hearing on the . . . issue[,]” Williams v.
Bordenkircher, 696 F.2d 464, 466 (6th Cir. 1983) (citing Pate v. Robinson, 383 U.S. 375, 385
(1966)).
While the Supreme Court has yet to prescribe a standard for determining when a trial
court should hold evidentiary proceedings on the matter of competency, we have previously used
the following test: “whether a reasonable judge, situated as was the trial court judge whose
failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with
respect to competency to stand trial.” Filiaggi v. Bagley, 445 F.3d 851, 858 (6th Cir. 2006)
(quoting Williams, 696 F.2d at 467). “[E]vidence of a defendant’s irrational behavior, his
demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in
5In Miller-El v. Cockrell, 537 U.S. 322 (2003), the Supreme Court warned against “merg[ing] the
independent requirements of §§ 2254(d)(2) and (e)(1).” Id. at 341. That said, the Supreme Court has yet to clarify
the relationship between § 2254(e)(1), under which a petitioner “bears the burden of rebutting the state court’s
factual findings ‘by clear and convincing evidence[,]’” and § 2254(d)(2). Titlow, 571 U.S. at 18 (quoting 28 U.S.C.
§ 2254(e)(1)); see also Wood, 558 U.S. at 300 (“[W]e have explicitly left open the question [of] whether
§ 2254(e)(1) applies in every case presenting a challenge under § 2254(d)(2)[.]”)
No. 16-3474 Carter v. Bogan Page 16
determining whether further inquiry is required, but . . . even one of these factors standing alone
may, in some circumstances, be sufficient.” Black v. Bell, 664 F.3d 81, 102 (6th Cir. 2011)
(alterations in original) (quoting Drope, 420 U.S. at 180). Where, however, a trial court has
already held a competency hearing and deemed the defendant competent, it need not reevaluate
its determination unless presented with qualitatively different evidence. See Franklin v.
Bradshaw, 695 F.3d 439, 450 (6th Cir. 2012).
Because competence to stand trial is a question of fact, see Thompson v. Keohane,
516 U.S. 99, 111 (1995), and because Ohio law incorporates the Drope standard for competency,
see O.R.C. § 2945.37(G),6 a petitioner challenging an Ohio court’s finding of competence
is subject, at minimum,7 to the strictures of 28 U.S.C. § 2254(d)(2), see Filiaggi, 445 F.3d at
858–59 (reviewing Supreme Court of Ohio’s competency determination, which was made
pursuant to Ohio law, under 28 U.S.C. § 2254(d)(2) and (e)(1)); see also Black, 664 F.3d at 102
(stating that a state court’s competency-to-stand-trial determination is entitled to deference under
28 U.S.C. § 2254(e)(1) provided that “the state court’s legal standard for determining whether a
defendant is competent is not contrary to or an unreasonable application of clearly established
Supreme Court precedent”). In other words, not only must a petitioner show that the state
court’s determination was unreasonable, but he may not draw upon any extrarecord evidence to
make his argument. See Pinholster, 563 U.S. at 185. When assessing whether a petitioner has
met this burden, it is important to keep in mind “that a state-court factual determination is not
unreasonable merely because the federal habeas court would have reached a different conclusion
in the first instance.” Titlow, 571 U.S. 18 (quoting Wood, 558 U.S. at 301).
6O.R.C. § 2945.37(G) states:
A defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a
preponderance of the evidence that, because of the defendant’s present mental condition, the
defendant is incapable of understanding the nature and objective of the proceedings against the
defendant or of assisting in the defendant’s defense, the court shall find the defendant incompetent
to stand trial and shall enter an order authorized by section 2945.38 of the Revised Code.
Ibid. (emphasis added).
7We say “at minimum” because the Supreme Court has yet to clarify the relationship between 28 U.S.C.
§§ 2254(d)(2) and 2254(e)(1), see Titlow, 571 U.S. at 18, and, thus, Carter’s competency challenge may also be
subject to the strictures of 28 U.S.C. § 2254(e)(1), see Black, 664 F.3d at 102. However, because Carter fails to
show that the Supreme Court of Ohio’s determination was unreasonable in light of the evidence presented in the
state court proceedings, we need not analyze his claim under 28 U.S.C. § 2254(e)(1).
No. 16-3474 Carter v. Bogan Page 17
B
Although Carter frames his first cause of action as a single claim—namely, that he was
incompetent at both the guilt and penalty phases of the trial—it actually consists of two
analytically distinct parts. In his first subclaim, Carter raises a question of fact. Specifically, he
asserts that “the trial court’s [and the Supreme Court of Ohio’s] determination of Carter’s
competency was unreasonable based upon the evidence available at the state court proceeding[,]”
both because the courts either ignored or misinterpreted relevant evidence and because they
credited flawed expert testimony. Petitioner Br. 22, 27, 31. Carter supports this subclaim, at
least in part, by pointing to the following evidence, which he contends the state courts
overlooked or did not properly credit: his family history of schizophrenia, his hallucinations as a
juvenile and during his competency evaluations, his attempts at suicide while in state custody,
his expressed desire to kill one of his trial attorneys, his purported lack of understanding of the
role of trial counsel, and his desire to receive the death penalty. Id. at 22–26.
In contrast, Carter’s second subclaim—i.e., that even if the trial court’s initial
determination was not unreasonable, evidence that arose after the competency hearings should
have led the court to reevaluate its finding, id. at 32—is an issue of law, see Hill v. Anderson,
881 F.3d 483, 510–11 (6th Cir. 2018) (assessing a petitioner’s failure-to-hold-a-competency-
hearing claim pursuant to 28 U.S.C. § 2254(d)(1)); see also Franklin, 695 F.3d at 450 (“[T]he
trial court’s failure to hold a midtrial competency hearing sua sponte was not a ‘decision that was
contrary to, or involved an unreasonable application of, clearly established Federal law.’” (citing
28 U.S.C. § 2254(d)(1))). But see id. at 451 (indicating later that failure-to-hold-a-sua-sponte-
competency-hearing claim is subject to review pursuant to 28 U.S.C. § 2254(d)(2)). Specifically,
Carter cites his outbursts in court—most notably, his interrupting defense counsel’s opening
statement to express his desire to plead guilty and his subsequent attempt to assault the trial
judge—as evidence that the trial court should have revisited the finding it made at the second
competency hearing. Petitioner Br. 25, 32.
As already detailed, Carter raised this competency claim on direct appeal, where it was
adjudicated on the merits. Carter, 734 N.E.2d at 355–56. With respect to Carter’s first
subclaim, the Supreme Court of Ohio acknowledged that the record contained some indications
No. 16-3474 Carter v. Bogan Page 18
of Carter’s being incompetent, but emphasized that such evidence was insufficient to overcome
the opinions of the expert witnesses, two of whom testified that Carter was competent to stand
trial and the third of whom “admitted that the question of competence was a close call.” Ibid.
The court accordingly held that the trial court did not abuse its discretion in finding Carter
competent because that decision was not “unreasonable, arbitrary, or unconscionable” in light of
the findings of fact. Id. at 356. As regards the denial of Carter’s second subclaim, the Supreme
Court of Ohio did not explicitly discuss it; nevertheless, that too qualifies as an adjudication on
the merits for the purposes of 28 U.S.C. § 2254(d). See Richter, 562 U.S. at 98 (“By its terms
§ 2254(d) bars relitigation of any claim ‘adjudicated on the merits’ in state court, subject only to
the exceptions in §§ 2254(d)(1) and (2). There is no text in the statute requiring a statement of
reasons.”).
C
As a preliminary matter, it is simply not true that the Supreme Court of Ohio failed to
consider the host of evidence that Carter points to. In arriving at its conclusion that the trial
court’s findings of fact did not support Carter’s competency claim, the Supreme Court of Ohio
explicitly recognized Carter’s suicide attempts while awaiting trial, his “apparent disagreements
with counsel[,]” his desire to “enter a plea and get it over[,]” and his “lung[ing] at the judge to be
removed from the courtroom.” Carter, 734 N.E.2d at 356, 356 n.3. Furthermore, while
discussing the expert witnesses’ testimony, the court noted Carter’s “anger and irritability with
his attorneys,” including his having expressed a desire to kill Consoldane, as well as his “bizarre
behavior”—presumably, his auditory and visual hallucinations—during his competency
interview with Dr. King. Id. at 355–56. At most, then, the court can be faulted for a relatively
minor oversight, namely, not explicitly considering Carter’s family history of mental illness.
i
Turning now to Carter’s first subclaim, the Supreme Court of Ohio’s decision affirming
the trial court’s competency determination was not unreasonable in light of the evidence
presented in state court. At Carter’s second competency hearing, Drs. Palumbo and Alcorn
testified that Carter was competent to stand trial, while Dr. King—who testified that Carter was
No. 16-3474 Carter v. Bogan Page 19
incompetent—described the issue as a “close call.”8 Given that, all else equal, it is not
unreasonable for a court to credit the diagnoses of two experts over that of a third (especially
when that contrary opinion is heavily qualified), see O’Neal v. Bagley, 743 F.3d 1010, 1023 (6th
Cir. 2013) (“With expert testimony split, as it often is, the state court chose to credit [two
experts] over [a third expert], and we cannot say from this vantage that it was unreasonable to do
so”); cf. Franklin, 695 F.3d at 449, Carter must show that the Supreme Court of Ohio was
unreasonable to credit the opinions of Drs. Palumbo and Alcorn.
He does not come close to doing so. In his brief, Carter points to evidence that he claims
was “enough” to establish his incompetence, such as his family history of schizophrenia, his
hallucinations, his attempts at suicide, his desire to plead guilty, and his expressed desire to kill
one of his trial counsel. Petitioner Br. 22–26. However, while Carter may very well be correct
that such evidence is “enough,” the question before us is whether such evidence compels a
determination of incompetence, see Collins, 546 U.S. at 341. And because not every suicidal
person—or everyone who has a family history of schizophrenia, a desire to plead guilty, or a
very low opinion of lawyers—is incompetent to stand trial, it does not. Carter therefore fails to
carry his burden under 28 U.S.C. § 2254(d)(2).
ii
As for Carter’s assertion that the trial court should have held a third competency hearing
sua sponte, the judgment of the Supreme Court of Ohio was not “so lacking in justification that
there was an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Hill, 881 F.3d at 510 (quoting Richter, 562 U.S. at 103). While
Carter’s courtroom behavior was outlandish, it was either cumulative of evidence presented at
the competency hearings or demonstrated an ability to engage in means-end reasoning to achieve
a stated goal. For instance, during the second competency hearing, both Palumbo and Alcorn
testified that Carter had expressed a desire to avoid trial and to plead guilty. Specifically,
Palumbo informed the trial court that Carter had “state[d that] he want[ed] to plead guilty, he
doesn’t want to have to go through all of this,” while Alcorn said:
8See supra p.4 n.1.
No. 16-3474 Carter v. Bogan Page 20
[Carter] clearly indicated a wish to be able to plead guilty and get it over with.
He said he didn’t want to go through a trial . . . . And [when] I inquired whether
he would prefer to plead guilty and not have to go through a trial so that he
wouldn’t have to sit through a recitation of the terrible things that he had
done[,] . . . he agreed with me about that.
Given this, Carter’s standing up in open court and declaring his desire to plead guilty—while
certainly unwise—merely reiterated information that had been considered by the court in its prior
competency determinations.
The same is true of Carter’s “lunging” at the trial judge. Immediately preceding the
incident, Carter repeatedly stated, in chambers, that he did not wish to attend the trial and asked
why he would not be allowed to plead guilty. Upon being advised by the court to speak with his
lawyer about pleading guilty, Carter said, “I don’t want to be here, don’t want to be over in the
court. Like, if I act up in here or something, like get restrained, they take me over there if I did
that?” Carter, 2015 WL 5752139, at *23. Shortly after the trial judge warned him that there
would be repercussions to “acting up” and directed that Carter be taken back to the courtroom,
the Petitioner attempted to attack the judge. Ibid. Then, after being restrained, Carter “promised
to the Court that he intends to continue that type of activity throughout the trial if he’s required to
be here.” Ibid. On this record, there is no indication that Carter’s behavior was anything other
than a calculated effort “to be removed from the courtroom[,]” Carter, 734 N.E.2d at 356 n.3,
and, thus, that the incident was of the same kind as evidence already considered during the
second competency hearing. Accordingly, we cannot say that the Supreme Court of Ohio
unreasonably applied clearly established federal law when it adjudicated this subclaim.
IV
A
Carter’s remaining causes of action involve allegations of ineffective assistance of trial
counsel. Specifically, Carter argues that his counsel were constitutionally ineffective because
they neither (1) protected his right to be competent to stand trial nor (2) properly presented
mitigating evidence during the trial’s penalty phase. Petitioner Br. 33, 47. Because these claims
are analyzed under the same framework, we group them together for ease of exposition.
No. 16-3474 Carter v. Bogan Page 21
To succeed on an ineffective-assistance-of-trial-counsel claim, a defendant must make
two showings. First, he must show that counsel’s performance was deficient, i.e., that “counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687 (1984). This
requires the defendant to identify specific acts or omissions by the counsel that were “outside the
wide range of professionally competent assistance.” Id. at 690. When reviewing counsel’s
performance, we “indulge a strong presumption” that “under the circumstances, the challenged
action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)).
Second, the defendant must establish that “the deficient performance prejudiced the
defense.” Id. at 687. For an error to be prejudicial, “[i]t is not enough . . . that [it] had some
conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, there must be “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Ibid. Where a defendant challenges a death sentence,
the question at this stage is “whether there is a reasonable probability that, absent the errors, the
sentencer . . . would have concluded that the balance of aggravating and mitigating
circumstances did not warrant death.” Id. at 695.
Because AEDPA applies to this case, Carter faces a particularly daunting task in
establishing ineffective assistance of counsel. Where a state court has adjudicated an ineffective-
assistance-of-counsel claim on the merits, we use a “doubly deferential standard of review that
gives both the state court and the defense attorney the benefit of the doubt.” Titlow, 571 U.S. at
15 (quotation marks omitted) (emphasis added) (citing Pinholster, 563 U.S. at 190). In other
words, rather than simply examining whether counsel satisfied Strickland’s deferential standard,
we ask “whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Richter, 562 U.S. at 105 (emphasis added).
No. 16-3474 Carter v. Bogan Page 22
B
Carter’s second claim details three ways in which trial counsel were allegedly ineffective
in protecting his right to be competent to stand trial: (1) by not presenting “material and relevant
information regarding Carter’s predisposition to and symptoms of mental illness[,]” (2) by not
presenting “additional evidence of Carter’s continual decline into incompetency[,]” and (3) by
not “request[ing] a competency hearing after the commencement of trial.” Petitioner Br. 33.
More specifically, Carter faults his counsel for, respectively, (1) “fail[ing] to provide reports by
psychiatric social worker Albert Linder and psychologist Dr. Douglas Darnall to any of the
experts . . . [, which described] Carter [as] suffering from symptoms [indicative of] a major
psychiatric disorder” and failing to adequately investigate and present evidence of Carter’s
suicide attempts; (2) not testifying during the competency hearings “about their personal
experience in attempting to work with Carter and the effect of the breakdown in communication
on their ability to prepare a constitutionally adequate defense”; and (3) not requesting a third
competency hearing following Carter’s outbursts at the start of the trial. Id. at 40–44.
Carter presented part of this claim on direct appeal and then again during postconviction
proceedings. In both instances, Carter asserted that trial counsel had failed to “fully present
evidence of incompetence” because they neither testified about nor filed affidavits detailing their
experience of working with Carter. On direct appeal, the Supreme Court of Ohio rejected
Carter’s argument, stating that it was “speculative” in light of the record. Carter, 734 N.E.2d at
356. On postconviction appeal, the Court of Appeals of Ohio rejected Carter’s claim, finding
that Carter’s “inability or unwillingness to aid his attorneys in the defense of his case [was] well-
documented in the record.” Carter, 2000 Ohio App. LEXIS 5935, at *13. Because this claim
was adjudicated on the merits in state postconviction proceedings, see Gonzales, 568 U.S. at 75,
75 n.16, the question before us is “whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Richter, 562 U.S. at 105.9
9In his Reply Brief, Carter argues that we are not bound by the Supreme Court’s determination that his
ineffective-assistance-of-trial-counsel claims were adjudicated on the merits in state postconviction proceedings
because it is dicta. Reply Br. 15. In support of this position, he notes that (1) the Supreme Court granted certiorari
on a “narrow question,” namely, “[w]hether section 4241 provides a statutory right to competence in federal habeas
No. 16-3474 Carter v. Bogan Page 23
There is. To see why, it first bears repeating that because Carter’s claim was adjudicated
on the merits, our review is limited to the record that was before the Ohio Court of Appeals,
Pinholster, 563 U.S. at 185 (holding, inter alia, that “evidence introduced in federal court has no
bearing on § 2254(d)(1) review”). Accordingly, in reviewing Carter’s ineffective-assistance-of-
trial-counsel claim, we may not consider the reports of Linder and Darnall, which were
introduced for the first time during federal habeas proceedings. This makes sense, as when we
conduct a § 2254(d)(1) review, we are reviewing the decision of the state court, not the
underlying claim.
Moving on to Carter’s assertion that counsel were constitutionally ineffective for failing
to present evidence of his suicide attempts and for not testifying about the breakdown in their
relationship with Carter, the subclaim is meritless because he does not establish prejudice. It is
undisputed that witnesses at the two competency hearings testified regarding these matters.
At the first hearing, which Palumbo attended, a Trumbull County deputy sheriff informed the
court that he had objected to the removal of Carter’s handcuffs at the hearing because Carter had
attempted to commit suicide while in custody. Then, at the second competency hearing,
Dr. King relayed conversations that he had had with Carter’s counsel regarding the difficulties
they had faced in working with the Petitioner:
proceedings” and (2) “the issue [was not] previously decided in the Sixth Circuit from which the [warden] sought a
Petition for Writ of Certiorari.” Id. at 14–15.
While it is true that the Supreme Court granted certiorari with respect to the aforementioned “narrow
question,” there is no reason to treat its adjudicated-on-the-merits determination as dicta. For starters, we find no
basis in the case law for Carter’s assertion that the Supreme Court’s holdings are limited to the issues on which
certiorari is granted; nor does Carter provide any support for that claim. Rather, in Humphrey’s Ex’r v. United
States, 295 U.S. 602 (1935), the Court seemed to define dicta as expressions that “go beyond the case[.]” Id. at 627.
Here, however, the Supreme Court made its adjudicated-on-the-merits finding “[f]or purposes of resolving [Carter’s]
case[.]” Gonzales, 568 U.S. at 74. Presumably, that is because (1) Carter did not argue in his brief to the Court that
there was a statutory right to be competent in habeas proceedings, (2) Carter “argued at length in [his] brief[] and at
oral argument that district courts have the equitable power to stay proceedings when they determine that habeas
petitioners are mentally incompetent[,]” and (3) the underlying issue in the case was whether a stay was appropriate.
Gonzales, 568 U.S. at 73–74. In determining that the district court erred in exercising its discretion to grant a stay,
the Court based its decision, in relevant part, on the fact that the ineffective-assistance-of-trial-counsel claims were
adjudicated on the merits in state court and, thus, that they would not benefit from Carter’s assistance as “[a]ny
extrarecord evidence that Carter might have concerning these claims would be . . . inadmissible.” Id. at 75. The
Supreme Court’s adjudicated-on-the-merits determination is therefore part of its holding in Gonzales.
No. 16-3474 Carter v. Bogan Page 24
I’ve had conversations with his counsel as frequent as today and they have
indicated to me that he is uncooperative with them, he is not working with them,
that actually he is very hostile when put under any pressure, and that they are
actually not only apprehensive but even afraid of him.
Carter, 2015 WL 5752139, at *28. King also testified that Carter had expressed a desire to kill
one of his trial counsel—whom Carter deemed to be an “idiot,” to be “playing slick,” and to not
caring about the case—and that he (King) believed the threat to be sincere. And in case the court
somehow overlooked the depth of Carter’s antipathy towards counsel, it was driven home by
Alcorn, who testified that Carter had “specifically requested that I inform the court that Mr.
Consoldane was a, quote, ‘Dumb fuck.’” Based upon this record, there is a reasonable argument
to be made that any additional evidence on these matters would have been cumulative and thus
would not have generated a reasonable probability that the outcome of the competency hearings
would have been different. The district court therefore correctly determined that the Ohio Court
of Appeals did not unreasonably apply Strickland when adjudicating this subclaim. Carter,
2015 WL 5752139, at *26.
Finally, because there is no merit to Carter’s claim that the trial court erred in failing to
hold a third competency hearing sua sponte, see supra pp. 19–20, there is also no merit to his
subclaim that counsel were constitutionally ineffective for failing to request a competency
hearing after the commencement of trial, see Franklin, 695 F.3d at 451 (“[T]here being no merit
to the underlying claim (trial-court error in not sua sponte ordering another hearing), there could
be no merit to th[e] claim [that trial counsel were ineffective in the guilt phase in failing to
request another competency hearing.]”). After all, to establish ineffective assistance of counsel,
Carter must show that there is a reasonable probability that save for counsels’ errors, the result of
the proceedings would have been different. Strickland, 466 U.S. at 694. The problem for Carter
is that the trial court was aware of almost all of the evidence that he now cites in support of this
ineffective-assistance-of-counsel subclaim. See Petitioner Br. 45. For instance, during the two
competency hearings, the court had been made aware of Carter’s suicide attempts and of the
difficult relationship that existed between Carter and his attorneys. And the trial judge had
witnessed first-hand Carter’s courtroom antics, including his attempt to attack the judge. Given
this—and given that we cannot consider Carter’s remaining evidence, namely, the reports of
No. 16-3474 Carter v. Bogan Page 25
Linder and Dr. Darnall—a reasonable argument can be made that trial counsels’ failure to
request a third competency hearing did not prejudice Carter.
C
In his third, and final, cause of action, Carter contends that counsel failed in two ways to
“adequately investigate, prepare, and present mitigating evidence that was available at the time
of [his] trial.” Petitioner Br. 47. First, Carter argues that counsel did a poor job explaining the
evidence introduced during the trial’s penalty phase and did not accurately portray Carter’s
character, history, and background. Ibid. Most notably, Carter criticizes counsel for their
decision to decline the trial court’s offer of an MRI for mitigation purposes—which, Carter
contends, would have shown that he was suffering from organic brain damage. Id. at 54–55. As
evidence of his trial counsels’ ineffectiveness, he also points to the numerous documents that
were submitted to the district court when he litigated his competence to assist habeas counsel.
Id. at 59–60.
Second, Carter criticizes counsels’ mitigation theory—namely, that Carter suffers from
Antisocial Personality Disorder—as “incoherent and damaging.” Id. at 50. Instead of presenting
the jury with “an image of a mechanical killer who was unable to feel emotion, have sympathy
for others or express remorse[,]” Carter contends that counsel should have introduced
“information about the impact a structured prison environment could have [had] on Carter[.]” Id.
at 47. Lastly, the Petitioner argues that relief is warranted because counsel presented a “mercy
theory” of mitigation, which was not permitted in Ohio at the time of his trial. Id. at 53–54.
Carter’s claim evolved at various stages of the proceedings. On direct appeal, Carter
limited himself to arguing that counsel were ineffective for failing to accept the trial court’s offer
of MRI testing. The Supreme Court of Ohio concluded that the claim was not appropriately
considered on direct appeal as there was “no way of knowing what, if anything, would have been
discovered[.]” Carter, 734 N.E.2d at 357. During postconviction proceedings, however, Carter
expanded his focus, asserting that counsel were ineffective for failing to fully investigate his
medical and social history—which, presumably, includes their failure to pursue neurological
testing—and for failing to hire a mitigation expert to assist in the discovery of relevant
No. 16-3474 Carter v. Bogan Page 26
information. Carter, 2000 Ohio App. LEXIS 5935, at *8. After detailing the testimony of two
mitigation experts who testified at Carter’s sentencing hearing, the Court of Appeals of Ohio
rejected these assertions as “not [being] supported by the record.” Id. at *9–10.
i
Concerning Carter’s first subclaim—that trial counsel did not adequately investigate or
present mitigating evidence—the judgment of the Ohio Court of Appeals did not involve an
unreasonable application of clearly established federal law. Because Carter’s claim was
adjudicated on the merits in state court, see id. at *10; see also Gonzales, 568 U.S. at 75, 75 n.16,
our review is limited to the record that was before the Ohio Court of Appeals, Pinholster,
563 U.S. at 185. The district court was therefore correct not to consider “evidence developed in
federal habeas proceedings[,]” to wit, the Magee affidavit, the Linder report, the Darnall letter,
the 1994 Portage County Juvenile Court chemical-dependency assessment, and an affidavit
stating that Carter had been enrolled in a learning-disability program while in elementary school.
See Petitioner Br. 59–60; see also 2015 WL 5752139, at *33, 36, 38.
Absent the foregoing evidence, there is simply no basis for concluding that counsel
“failed to fairly depict Carter’s character, history and background, including his childhood
neglect and trauma, serious mental illness, family history of mental illness, [and] substance
abuse[,]” Petitioner Br. 47. As the Court of Appeals of Ohio observed, two defense witnesses
testified extensively on these matters during the trial’s mitigation phase. See Carter, 2000 Ohio
App. LEXIS 5935, at *9–10. For instance, Nancy Dorian, a psychologist who oversaw Carter’s
foster placement on behalf of children’s services, recounted the emotional difficulties he
experienced at a young age—such as having an attachment disorder, being “schizoid-prone,” and
having difficulty getting along with others—as well as the abuse that he suffered at the hands of
his mother, e.g., his being “tied to a chair and left alone” for long periods of time. See id. at *9.
Likewise, Dr. Sandra McPherson, a clinical psychologist who conducted a thorough review of
Carter’s medical and social history, detailed the Petitioner’s traumatic first few years of life; how
he later suffered from emotionally-triggered seizures, an attachment disorder, and hearing issues
due to neglect; how he was removed from a foster situation that was his “only chance” for a
positive outcome and placed with a family that was emotionally abusive; how he was removed
No. 16-3474 Carter v. Bogan Page 27
from that family and eventually placed with the Carters, who were not prepared to deal with his
many psychological issues; and his genetic predisposition to schizophrenia. In light of this
testimony—and the over 200 pages of social service, medical, and legal records that were
introduced during the mitigation phase of the trial—trial counsels’ performance was not “outside
the wide range of professionally competent assistance” with respect to the presentation of
evidence of Carter’s childhood trauma, mental illness, and substance abuse. See Strickland,
466 U.S. at 690.
Carter’s first subclaim therefore rests upon his counsels’ seemingly curious decision not
to obtain neurological testing for Carter; upon closer examination, however, that decision did not
amount to deficient performance in light of Dr. King’s testimony at the second competency
hearing. In reviewing counsels’ decision, it is important to keep in mind that “[a] licensed
practitioner is generally held to be competent, unless counsel has good reason to believe to the
contrary.” Fautenberry v. Mitchell, 515 F.3d 614, 625 (6th Cir. 2008) (alteration in original)
(quoting Lundgren v. Mitchell, 440 F.3d 754, 772 (6th Cir. 2006)). Given this, unless a
petitioner shows that counsel had “good reason” to believe the practitioner to be incompetent, “it
[is] objectively reasonable for counsel to rely upon the doctor’s opinions and conclusions.” Ibid.
Here, when King was asked by the trial judge at the second competency hearing whether “an
MRI would . . . assist us in this case to render any psychological opinions involving either sanity
or competency or mental defect[,]” King replied “no.”10 Given that Carter does not suggest that
King was incompetent, and given that counsels’ mitigation strategy centered on Carter’s
traumatic upbringing and subsequent mental illness, counsel could have plausibly determined
that an MRI would not have furthered Carter’s defense.11 It therefore cannot be said that
10Carter’s counsel mischaracterized this portion of Dr. King’s testimony in at least one filing before the
district court, stating that Dr. King’s testimony was limited to the issue of Carter’s sanity. See Amended Traverse to
Return of Writ at 40–41, Carter, 2015 WL 5752139 (No. 3:02CV524).
11At oral argument, Carter argued that trial counsels’ decision could not have been strategic because there
would have been no downside to pursuing an MRI. Stated more expansively, his federal habeas counsel asserted
that even if the MRI had shown that Carter did not suffer from organic brain damage, he would not have been
harmed by that revelation as the absence of such an injury would not have ruled out the possibility of mental illness.
This argument ignores, however, the way in which trial counsel could have leveraged uncertainty over the
existence of organic brain damage to Carter’s benefit. Put differently, in assessing whether a negative MRI result
would have harmed Carter’s defense, we must consider how trial counsel could have used the jury’s uncertainty
over the existence of organic brain damage to Carter’s advantage. So long as the jury did not have a definitive
No. 16-3474 Carter v. Bogan Page 28
Carter’s counsels’ performance was constitutionally deficient, let alone that there is no
reasonable argument that counsel satisfied Strickland’s deferential standard, Richter, 562 U.S. at
105.
ii
The second half of Carter’s third cause of action—that counsel were constitutionally
ineffective because their mitigation theory was objectively unreasonable, see Petitioner Br. 52—
is likewise meritless. To begin with, contrary to Carter’s suggestions, Ohio state law recognizes
Antisocial Personality Disorder (“ASPD”) as a statutory mitigating factor. See Esparza v.
Sheldon, 765 F.3d 615, 623 (6th Cir. 2014) (citing State v. Seiber, 564 N.E.2d 408, 416 (Ohio
1990)). Specifically, in Ohio, ASPD qualifies as a mitigating factor pursuant to O.R.C.
§ 2929.04(B)(7), Seiber, 564 N.E.2d at 416; see also State v. Wesson, 999 N.E.2d 557, 583 (Ohio
2013) (considering personality disorder with antisocial features as a mitigating factor), a catchall
provision that permits a jury to consider “[a]ny other factors that are relevant to the issue of
whether the offender should be sentenced to death[,]” O.R.C. § 2929.04(B)(7). Moreover, given
that we have recognized that “the failure to introduce evidence of a similar disorder” can be
prejudicial, even under AEDPA’s deferential standard, Esparza, 765 F.3d at 623 (citing Williams
v. Anderson, 460 F.3d 789, 805 (6th Cir. 2006)), there is no basis for Carter’s suggestion that it
was per se ineffective performance for counsel to present evidence of Carter’s ASPD, see
Petitioner Br. 51 (“It is well accepted, since at least 1988 . . . that the defense presentation of
[ASPD] . . . is not mitigating evidence that favors a life sentence.”).
Nor was the choice of mitigation strategy otherwise deficient. As noted earlier, to
succeed on an ineffective-assistance-of-counsel claim, a petitioner must overcome the
presumption that the challenged action constituted sound trial strategy. Strickland, 466 U.S. at
689. While it is true that counsels’ mitigation theory did not present Carter in a flattering light, it
was clear and coherent given the available evidence, for instance, the fact that Drs. Palumbo,
King, Alcorn, and McPherson had all diagnosed Carter with ASPD. Simply put, counsel sought
answer to the question of whether Carter had such damage, counsel could suggest that Carter did indeed suffer from
it. Of course, such an insinuation is not as helpful to Carter as actual proof, but it is better than if the MRI showed
no damage whatsoever. Accordingly, counsel could have reasonably determined that it was better to hedge their
bets than to pursue MRI testing.
No. 16-3474 Carter v. Bogan Page 29
to lessen Carter’s blameworthiness for a brutal crime by leveraging an uncontested psychiatric
diagnosis to explain “how [Carter] developed and why he developed the way he did[.]”
Counsels’ strategy, then, was to impress upon the jury the importance of judging Carter by a
different standard when assessing the wrongfulness of his actions than it would judge one who,
despite having been nurtured as a child, had chosen to commit the crime in question. It cannot
plausibly be said that counsels’ reliance on nuanced moral reasoning—i.e., that an individual’s
blameworthiness for a given act can change based upon the circumstances of his or her
upbringing—fell outside the wide range of professionally competent assistance.
To be clear, counsels’ strategy was not a plea for mercy. Carter is quite correct that had
defense counsel simply made a plea for mercy, their performance would have been, at minimum,
deficient. That is because in Ohio, mercy “is not a mitigating factor and thus [is] irrelevant to
sentencing[.]” State v. Lorraine, 613 N.E.2d 212, 216 (Ohio 1993). However, notwithstanding
the district court’s characterization of counsels’ theory of mitigation as a “plea for mercy,”
Carter, 2015 WL 5752139, at *35, defense counsel never argued as such. Rather, as detailed
above, their argument was premised on a statutorily recognized mitigating factor. Given that
Carter’s entire argument here rests upon the district court’s mischaracterization, there is no merit
to it.
Finally, while Carter may be correct that an alternative mitigation theory would have
been more successful, that does not show that the Ohio courts unreasonably applied clearly
established federal law in rejecting his Strickland claim. The sole basis for Carter’s alternative
mitigation theory is an affidavit by Dr. Bob Stinson—a psychologist who examined the records
available to the trial attorneys at the time of the mitigation hearing—that was introduced during
federal habeas proceedings. As we have repeatedly noted, however, we cannot consider such
evidence when reviewing a claim adjudicated on the merits in state court. Pinholster, 563 U.S.
at 185. Accordingly, other than his bald assertion that evidence of adaptability to life in prison is
“a vital component of any mitigation presentation where the jury is choosing between life and
death[,]” Petitioner Br. 60–61 (emphasis added), Carter provides no grounds for discarding the
strong presumption that counsels’ decision constituted sound trial strategy, see Strickland,
No. 16-3474 Carter v. Bogan Page 30
466 U.S. at 689, let alone that he was prejudiced by their decision. Thus, counsel were not
constitutionally ineffective for their choice of mitigation strategy.
V
For the foregoing reasons, we AFFIRM the decision of the district court denying the
petition for a writ of habeas corpus.