On Remand from the United States Supreme Court. No. 94-00269--George C. Smith, District Judge.
The opinion of the court was delivered by: Merritt, Circuit Judge.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206
Before: MERRITT, MARTIN, and MOORE, Circuit Judges.
This opinion represents this panel's fourth review of this case. Robert Van Hook petitioned for federal habeas corpus relief in 1995 after waiving trial by jury and after a three-judge Ohio panel sentenced him to death for the brutal murder of David Self in connection with a homosexual encounter and after the Ohio courts upheld Van Hook's death sentence. State v. Van Hook, 530 N.E.2d 883, 884 (1988) (finding that Van Hook "lured Self into a vulnerable position," strangled him, killed him with a kitchen knife and mutilated his body), cert. denied, 489 U.S. 1100 (1989) (Brennan and Marshall, JJ., dissenting). The Ohio courts then denied Van Hook's petition for post-conviction relief, State v. Van Hook, No. C-910505, 1992 WL 308350 (Ohio Ct. App., Oct. 21, 1992). The Antiterrorism and Effective Death Penalty Act of 1996 does not apply. After the district court denied all of his habeas claims, this panel reversed, first concluding that Van Hook's confession was unconstitutionally obtained in violation of Edwards v. Arizona, 451 U.S. 477 (1981). See Van Hook v. Anderson, 444 F.3d 830 (2006). The en banc Sixth Circuit disagreed and vacated that ruling and remanded the case to the panel to consider Van Hook's other claims. Van Hook v. Anderson, 488 F.3d 411 (2007). On remand, the panel granted habeas relief again, but this time on the theory that Van Hook's trial counsel was constitutionally ineffective during the penalty phase of his trial. Van Hook v. Anderson, 535 F.3d 458 (2008). The en banc Sixth Circuit again vacated this panel's opinion and remanded the case to the panel for revision of its opinion. It reversed the panel's conclusion that the failure to obtain a mental health expert and the failure to object to a presentence report constituted a basis or a factor that justified a finding of ineffective assistance of counsel. The revised panel opinion again held that Van Hook's trial counsel was constitutionally ineffective during the penalty phase but narrowed the scope of its holding to ineffectiveness only in the investigation and presentation of mitigating evidence. See Van Hook v. Anderson, 560 F.3d 523 (2009). The United States Supreme Court then granted certiorari and reversed in Bobby v. Van Hook, 130 S. Ct. 13 (2009). The Court held that the panel erred in using as a standard of effective representation the 2003 ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. Further the Court, like the en banc Sixth Circuit, ruled that "counsel's failure to obtain an independent mental health expert" and counsel's reliance on a presentence investigation report could not be the "basis for issuing the writ." Id. at 19 n.2. The case is now back before the panel again on remand.
Van Hook presents us with three claims. First, he asserts a Brady claim: he alleges that the trial court and prosecution wrongfully withheld two pieces of exculpatory evidence from him at trial in violation of Brady v. Maryland, 373 U.S. 83 (1963). Second, he argues that his trial counsel was constitutionally ineffective for failing to request an independent mental health expert and for requesting a presentence report for the penalty phase. Third, he argues that his appellate counsel on his direct appeal of right was constitutionally ineffective for failing to raise two grounds for relief.
The State of Ohio has affirmatively waived the exhaustion of state remedies on the Brady issue. Van Hook argues that the trial court and prosecution withheld two pieces of evidence from him during trial in violation of Brady v. Maryland. The first piece of evidence is a psychological profile created by psychologist Dr. Walter Lippert for the police during their investigation. (Pet'r's Br. at 11.) After examining the crime scene before the case was solved, Dr. Lippert allegedly suggested in the profile that the killer may have been motivated by a rejection of his own homosexual urges, rather than by robbery. Van Hook argues that this profile is exculpatory and alleges that the police withheld it from him during trial. The original profile is apparently missing from the police documents, and Dr. Lippert is deceased, so Van Hook alleges that he learned of its contents by questioning police officers during federal habeas proceedings. (Id. at 11 n.1.) The second piece of evidence is a treatment addendum prepared by psychologist Dr. Nancy Schmidtgoessling, who did testify at trial. The report suggested that the murder may have occurred as the result of a "homophobic panic." (Id. at 12-13.) The trial court received her addendum after her testimony, but the trial court did not turn it over to Van Hook. Van Hook now argues the addendum is Brady material.
To prevail on a Brady claim, the petitioner must show that the withheld exculpatory evidence was material; that is, it "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles v. Whitley, 514 U.S. 419, 435 (1995). Dr. Lippert's profile and Dr. Schmidtgoessling's addendum suggested the killer may have been motivated by a "homophobic panic" rather than robbery. Van Hook argues that if these materials had been disclosed to him at trial, he would have used them in several ways: (1) to support his insanity defense during the guilt phase and the existence of a "mental disease or defect," a statutory mitigating factor, during the penalty phase; (2) to negate the murder element of specific intent to cause the death of another person; and (3) to rebut the existence of aggravated robbery, a statutory aggravating factor, during the penalty phase. (Pet'r's Br. at 13-16.) For the following reasons, none of these arguments "put the whole case in such a different light as to undermine confidence in the verdict." Ibid.
First, the Brady evidence would not have added anything of note to the proof. All three mental health experts who testified at trial, like Dr. Lippert's investigative profile, suggested that Van Hook may have been motivated in part by his worry and uncertainty about his own sexuality. Dr. Emmett Cooper testified that Van Hook's momentary break with reality was due in part to the conflicted feelings Van Hook experienced as a result of his homosexual urges. (See J.A. 5895.) Dr. Nancy Schmidtgoessling testified that Van Hook was uncomfortable with his sexuality, and that the voluntary homosexual contact between him and the victim triggered a "homosexual panic," the same language she used in her memo. (J.A. 4292-94.) And Dr. Teresito Alquizola testified that Van Hook's anticipation of homosexual contact from the victim may have caused the murder. (J.A. 4349-50.) If the three trial judges were not persuaded by this expert testimony to mitigate the punishment, it is highly implausible that the two pieces of Brady evidence, which similarly suggested that Van Hook may have killed the victim due to a "homophobic panic," would have altered their conclusion. The two memos were weaker and less persuasive than the actual testimony and shined no new "light" on the case.
Second, there was overwhelming expert testimony at trial that Van Hook neither met the Ohio standard for insanity nor suffered from a mental disease. Dr. Cooper testified that Van Hook could distinguish between right and wrong (J.A. 4227) and that the murder may have been caused in part by Van Hook's use of drugs and alcohol, but not by a mental disease (J.A. 4251-52). Dr. Schmidtgoessling testified that Van Hook never suffered from a mental disease, knew the difference between right and wrong, and could conform his behavior to the requirements of the law. (J.A. 4278-79.)
Dr. Alquizola testified in the same way. (J.A. 4328.) No expert testified that Van Hook met the standard for insanity, nor did any expert testify that the murder was the result of a mental disease. Moreover, neither of the two Brady documents state that Van Hook met the standard for insanity or suffered from a mental disease or defect. They do not undermine confidence that the Ohio courts would have reached the same determinations regarding Van Hook's mental condition.
Third, overwhelming evidence was presented at trial that Van Hook satisfied the statutory aggravating factor of aggravated robbery. Ohio law defines "aggravated robbery" to include inflicting "serious physical harm on another" while "attempting or committing a theft offense." Ohio Rev. Code Ann. § 2911.01(A)(3). Van Hook stated in his confession and subsequently during each mental evaluation that his intent on the day of the murder was to lure a homosexual for the purposes of robbery. He said that was his motive. (J.A. 5894.) Van Hook admitted searching the victim for money, taking gold chains from the victim's jewelry box, and leaving with the victim's leather jacket. (Id.) Even if Van Hook was motivated partially, or even entirely, at the exact moment of the murder by a "homophobic panic," that would not change the fact that he stole some of the victim's personal property by the use of serious ...