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Awkal v. Mitchell
Citations: 559 F.3d 456; 2009 U.S. App. LEXIS 5357; 2009 WL 648920Docket: 01-4278
Court: Court of Appeals for the Sixth Circuit; March 16, 2009; Federal Appellate Court
Abdul Awkal was convicted in 1992 by an Ohio jury for the aggravated murders of his estranged wife, Latife Awkal, and her brother, Mahmoud Abdul-Aziz, leading to a death sentence. Awkal appealed the district court's denial of his habeas corpus petition, focusing on claims of ineffective assistance of counsel and prosecutorial misconduct. The appeal court, upon reviewing the case, found that Awkal's defense attorney provided ineffective assistance by calling an expert who testified to Awkal's sanity at the time of the murders, which contradicted Awkal's defense strategy. Consequently, the court reversed the district court's decision and remanded the case, instructing the district court to issue a conditional writ of habeas corpus for Awkal's release unless the State of Ohio initiates a new trial within 180 days. The court did not address the effectiveness of counsel during the penalty phase or the alleged prosecutorial misconduct. Background details reveal Awkal's history of mental health issues, including a breakdown in 1985, and his life events leading up to the murders, including his immigration from Lebanon. Awkal's reliance on sleeping pills lessened after marrying Latife in March 1989 under Islamic law and in April 1989 under Ohio law. Later that year, he sought medical help for numbness but did not pursue psychiatric treatment. The couple had a daughter, Zaynab, in September 1990. During their honeymoon, Latife expressed a lack of love but hoped it would develop. Awkal attempted to strengthen their relationship through various supportive actions, but Latife and her brothers criticized his religious practices, feeling he was not a devout Muslim due to his music enjoyment and celebration of Christian holidays. Latife's brother Mahmoud tried to instruct Awkal in their Islamic faith, but Awkal perceived this as harassment. The marriage deteriorated, leading Latife to request an Islamic divorce, which Awkal provided on October 13, 1991, although she later agreed to remarry him. Latife felt shameful about the divorce and its implications for their child’s legitimacy. Shortly after the divorce, Latife discovered she had contracted a venereal disease from Awkal, prompting her to move in with Mahmoud and initiate divorce proceedings, including requests for spousal and child support. Awkal experienced emotional distress due to the divorce, attending counseling sessions in November 1991, where he expressed anger and suicidal thoughts linked to his marital issues and perceived interference from Latife's family. On November 8, 1991, he purchased a firearm for self-defense and threatened Latife and her family if the divorce was not annulled. Latife reported these threats to her attorney. Following divorce hearings in December, Awkal and Latife established a temporary visitation plan and agreed to divide their frozen joint assets. A meeting was set for January 7, 1992, at the Family Conciliation Services Department. Latife arrived early with her brother and child, while Awkal arrived shortly before the meeting, carrying essential childcare supplies and copies of the baby's medical records. Awkal transferred nearly all funds from his frozen checking accounts to his brother and changed his mailing address to his brother's home in Michigan before confronting Mahmoud and Latife in a courthouse hallway. Although no loud arguments were heard prior to the incident, panicked voices were audible just before they entered Room 52, where Awkal shot his wife and her brother at close range. Five shell casings were found inside the room and one in the hallway. After the shooting, Awkal took his baby from a bench and fled through the courthouse, threatening to kill himself and his daughter when confronted by deputies. In an attempted escape, he was shot in the back. Upon arrest, his gun was cocked with six live rounds, and he had an additional magazine with thirteen rounds in his coat pocket. Bullets retrieved from the victims matched those fired from his weapon. Awkal later told police that he shot Mahmoud after demanding a declaration of faith, believing he might have shot himself as well. Awkal faced two counts of aggravated murder with death penalty specifications, among other charges, and pleaded 'not guilty' and 'not guilty by reason of insanity.' During evaluations, he exhibited hallucinations and was prescribed various medications, yet his mental health issues hindered his ability to assist in his defense. Although he was found sane at the time of the murders, the court deemed him incompetent to stand trial due to severe depression. He was sent to the Dayton Mental Health Center for treatment. By September 3, 1992, he was deemed competent to stand trial but returned for further treatment until the trial began in October 1992. During the trial, defense counsel raised concerns about Awkal's deteriorating condition, but the court opted not to reevaluate him, instead promising to monitor his attentiveness. After the state concluded its case, one felonious assault charge was dismissed, and a psychologist's testimony regarding prior calculation and design was struck from the record due to his lack of licensing. Dr. Magdi S. Rizk testified that Awkal was sane during the murders, while Dr. Eileen S. McGee argued he was insane and unaware of his actions due to provocation from Latife and Mahmoud. Awkal claimed he was harassed by Latife's brothers, who he described as religious fanatics, and that he purchased a gun for self-defense. On the day of the incident, after a confrontation with Mahmoud regarding his daughter, Awkal experienced a mental break and lost awareness, later waking in a hospital. The prosecution presented Dr. Edward Dutton, who asserted Awkal was malingering and understood his actions. The jury found Awkal guilty of aggravated murder but acquitted him of felonious assault. During sentencing, several psychiatrists testified in Awkal's defense, attributing his actions to lifelong anxiety and provocation. Despite this, the jury recommended the death penalty, which the trial court imposed and was affirmed by the court of appeals. Awkal's direct appeal and subsequent petitions for post-conviction relief were denied, leading to his petition for a writ of habeas corpus filed in federal court in 2000. The district court denied Awkal's petition and did not grant a certificate of appealability; however, a certificate was later granted to allow him to raise claims of ineffective assistance of counsel and prosecutorial misconduct. During his habeas petition process in 2004, Awkal requested to terminate his appeal, but after psychological evaluations, the district court found him incompetent to do so. The current review focuses on Awkal's claims of ineffective assistance and prosecutorial misconduct. The standard of review for a habeas petition involves a de novo examination of the legal basis for a district court's dismissal and a clear error review of its factual findings. Since Awkal's petition was filed after the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) came into effect, the review is bound by its limitations. Under AEDPA, a writ of habeas corpus cannot be granted for claims that were adjudicated on the merits in state court unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law, or was based on an unreasonable determination of facts. The standards for determining these conditions include the "contrary to" clause, which allows for granting a writ if a state court reaches a conclusion opposite to that of the Supreme Court, and the "unreasonable application" clause, which permits granting a writ if a state court identifies the correct legal principle but unreasonably applies it to the facts of the case. Clearly established law under AEDPA encompasses not only definitive rules but also legal principles articulated in Supreme Court decisions. Regarding Awkal's claims of ineffective assistance of counsel, he asserts that his attorney performed inadequately during both the guilt and penalty phases of his trial, particularly failing to present a competent mental-health expert for his insanity defense and not introducing mitigating evidence during sentencing. To succeed in these claims, Awkal must demonstrate that his counsel's performance was deficient by falling below an objective standard of reasonableness and that this deficiency resulted in prejudice, affecting the outcome of the proceedings. A reasonable probability is defined as one that undermines confidence in the outcome of a case. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Awkal must demonstrate that the Ohio Supreme Court's application of the Strickland standard to his case was objectively unreasonable. Awkal's defense against murder charges relied solely on an insanity plea. His counsel attempted to call three expert witnesses: Dr. Paul E. Hewitt, who was excluded due to lack of proper licensure, Dr. Magdi S. Rizk, who testified that Awkal was sane at the time of the crime, and Dr. Eileen S. McGee, a less experienced psychiatrist. The selection of these experts was deemed inadequate, particularly Rizk’s testimony, which contradicted Awkal's defense. This situation parallels the case of Combs v. Coyle, where ineffective assistance of counsel was established when the defense's expert undermined the intended defense strategy. Awkal’s case similarly involved a defense based on insanity, with Rizk’s testimony effectively affirming the prosecution's position that Awkal was sane at the time of the crime, thus constituting deficient performance by counsel. Awkal has no documented history of severe mental illness or psychosis, and there is no evidence of residual symptoms at the time of the shooting incident. Awkal was angry but lacked a psychotic motive for his actions. His belief that he saw a monster's face is attributed to an illusion, not mental illness, and he currently shows no psychotic symptoms. An expert, Rizk, opined that Awkal was sane at the time of the crime and did not suffer from any mental disease that would impair his understanding of the wrongfulness of his act. Despite defense counsel being aware of Rizk's sanity assessment, they called him as a witness, which was deemed a deficient performance since Rizk's testimony contradicted Awkal's primary defense. This situation parallels the precedent set in Combs, where the expert's testimony undermined the defense, contrasting with Morales, where the defense was based on psychological issues and voluntary intoxication, and the counsel had fully understood the expert's opinion beforehand. While Rizk's remarks on family dynamics and competency were not detrimental, they did not assist Awkal's defense during the guilt phase. Under Ohio law, a defendant must demonstrate that they were unaware of the wrongfulness of their actions due to a severe mental condition to plead not guilty by reason of insanity, making Rizk’s sanity opinion pivotal at the guilt phase. Rizk's testimony directly contradicted Awkal's sole defense, severely undermining it without any balancing information to support Awkal. Unlike the isolated expert comment in Morales, Rizk's testimony was comprehensive and destructive, rendering Awkal's counsel's decision to call him objectively unreasonable. Awareness of Rizk's reports did not mitigate this deficiency, as presenting an expert who contradicted the defense was inadequate representation. Awkal demonstrated that this deficiency resulted in prejudice against him. The state provided evidence asserting Awkal's legal sanity and intent during the crime, including the presence of baby supplies and bullets in his vehicle, while Awkal claimed a lack of intent due to a mental health crisis. The presentation of Rizk's testimony effectively obliterated any chance of a successful insanity defense, similar to the situation in Combs, where expert testimony was damaging to the defense. Concerns about calling Rizk were noted even by the prosecutor, who questioned the strategic reasoning behind the decision. Defense counsel's failure to provide justification for calling Rizk, despite knowing the damaging implications of his report, highlighted the poor judgment involved. The prosecutor remarked on the unusual choice during closing arguments, emphasizing its detrimental impact. The decision to call Rizk created significant harm, raising the likelihood that the jury's verdict would have differed had this testimony not been presented. The core issue was not merely the opposing testimony but the fact that Awkal's own counsel introduced evidence that completely negated his defense. Awkal also demonstrated prejudice despite having another expert, McGee, testify in favor of his insanity defense. During the trial, the prosecution and defense experts presented conflicting testimony regarding Awkal's sanity at the time of the murders. The defense's strategy was undermined when one expert, Dr. Rizk, explicitly stated that Awkal was sane, which conflicted with the insanity defense. Although another expert, Dr. McGee, supported Awkal's claim of insanity, her qualifications were questioned due to her lack of board certification and limited experience. The Ohio Supreme Court found no ineffective assistance of counsel, concluding that Awkal received a fair trial despite the conflicting expert testimonies. They acknowledged that Dr. Rizk's testimony damaged the insanity defense but also noted that he provided some supportive information. While the defense's decisions were criticized in hindsight, the court maintained that the effectiveness of counsel should not solely be judged by the outcome of their tactical choices. The analysis of the Ohio Supreme Court is deemed objectively unreasonable as it fails to adequately address the significant harm caused by the decision to call Dr. Rizk to testify. Rizk's testimony was incorrectly portrayed as beneficial to Awkal's defense. While Rizk discussed Awkal's family and psychiatric history, these details were irrelevant during the guilt phase, which focused solely on Awkal's sanity at the time of the crime, as defined by Ohio Rev. Code 2901.01(N). Rizk's assertion that Awkal was sane undermined Awkal’s defense, a fact overlooked by the Ohio Supreme Court, which mistakenly viewed Rizk's testimony as part of a broader strategy. The court’s application of Strickland was deemed objectively unreasonable, leading to a conclusion that Awkal received ineffective assistance of counsel during the guilt phase, resulting in the reversal of the district court's denial of habeas relief. Awkal also claimed ineffective assistance of counsel during the penalty phase, arguing that his attorney failed to present mitigating evidence, specifically a police report from 1985 detailing a psychotic episode, and did not engage qualified mental health experts. The government countered that the first claim was procedurally defaulted and the second was waived due to improper presentation in the district court. However, since the judgment was reversed based on ineffective assistance during the guilt phase, the court did not address the preservation or merits of the penalty phase claims. Lastly, Awkal alleged prosecutorial misconduct that violated his due process rights. During closing arguments, the prosecutor mischaracterized expert testimony regarding Awkal’s sanity and denigrated the expert's decision to testify. Awkal's counsel did not object to these statements, leading to a procedural default. The Ohio Supreme Court found the prosecutor's comments erroneous and intended to incite jury bias, but did not determine that this constituted a violation of due process. The prosecutor's arguments in Awkal's case were deemed not to constitute plain error, and the district court found the claim procedurally defaulted, asserting that it would fail on the merits even if not defaulted. The application of Ohio’s contemporaneous objection rule bars federal habeas review, as established in Biros v. Bagley. Awkal's counsel did not object to the prosecutor's statements at trial, leading to procedural default. However, the court granted Awkal's habeas petition on ineffective assistance of counsel grounds during the guilt phase and did not assess the cause and prejudice needed to excuse the procedural default regarding prosecutorial misconduct. Notable errors included the prosecutor's legally incorrect and inflammatory remarks about the implications of a not-guilty-by-reason-of-insanity verdict, which misled the jury, and the failure of Awkal's counsel to object to these statements. The court reversed the district court's judgment and remanded the case, instructing the issuance of a conditional writ of habeas corpus unless a new trial is initiated by the State of Ohio within 180 days. Circuit Judge Ronald Lee Gilman dissented, arguing that Awkal did not meet the Strickland test for ineffective assistance of counsel, particularly questioning the majority's assessment that the defense counsel's actions fell below an objective standard of reasonableness. The dissent highlighted that the decision to call a specific expert witness was not definitively outside the range of competent assistance. The legal case involves the testimony of three expert witnesses concerning Awkal's alleged insanity during the trial. Dr. Paul Hewitt's testimony was eventually allowed at the penalty phase after being struck due to his lack of a psychology license in Ohio. Dr. Magdi Rizk testified that Awkal had been previously found incompetent to stand trial and discussed religious tensions affecting Awkal's relationships. However, on cross-examination, Dr. Rizk contradicted the defense's insanity claim by stating Awkal was sane at the time of the murders. Dr. Eileen McGee, the third witness, supported the insanity defense, asserting Awkal was unable to understand his actions were wrong and that the victims had provoked him. This case shares similarities with Combs, particularly in the mixed outcomes of expert testimonies. However, unlike in Combs, Awkal's defense team called an additional expert whose testimony reinforced the insanity argument, despite the procedural issues surrounding Dr. Hewitt. A significant distinction is that Awkal's counsel had reviewed Dr. Rizk's sanity report before trial, which indicated Awkal was sane, suggesting a strategic choice to present Dr. Rizk's testimony to mitigate potential damage from the prosecution's questioning. This strategy aimed to introduce doubt regarding Dr. Rizk's negative opinion by highlighting favorable aspects of his testimony upfront. Ultimately, the strategic decisions made by Awkal's counsel, even if questionable in hindsight, reflected a more informed approach compared to the defense in Combs, who lacked awareness of their expert's likely testimony outcomes. Defense counsel's decision to call Dr. Rizk as a witness, despite his opinion on the insanity issue, appears to be a strategic choice rather than a misstep. The Supreme Court emphasizes a strong presumption that counsel's actions are reasonable and fall within the realm of sound trial strategy, which Awkal has not successfully challenged. Thus, he cannot meet the deficiency standard under Strickland v. Washington. Even if Awkal could demonstrate that his counsel's performance was deficient, he fails to show that this deficiency prejudiced him. The evidence overwhelmingly indicates that Awkal shot his estranged wife and brother-in-law, with his sole defense being legal insanity. Notably, Awkal exhibited premeditated behaviors, such as purchasing a firearm, threatening Latife and her family, and preparing for the killings, demonstrating clear intent and planning rather than insanity. His calm demeanor during the shootings and subsequent actions further contradict the claim of being in a psychotic state. Awkal's assertion that he intended to commit suicide in front of Latife is inconsistent with the evidence. Therefore, establishing that he did not understand the wrongfulness of his actions, as required for an insanity defense under Ohio law, would have been exceedingly difficult. The majority opinion argues that calling Dr. Rizk harmed Awkal's chances for a successful insanity defense, but the overwhelming evidence suggests he had no realistic hope of succeeding in that defense regardless of counsel's decisions. Dr. Rizk's testimony did not singularly undermine Awkal's insanity defense, especially since Dr. McGee, another psychiatrist, testified that Awkal was insane during the murders. The majority's assertion that McGee's testimony was insufficient to counteract the damage from Rizk's testimony lacks supporting case law and overlooks the jury's ability to weigh evidence from both experts. The majority posits that Rizk's testimony was so detrimental that no contrary expert opinions could rectify it, suggesting that even multiple opposing testimonies would not influence the jury. This reasoning is deemed unconvincing, particularly since the prosecution would have called Dr. Rizk if the defense had not. While there may be a qualitative difference between adverse testimony from a defense witness versus a prosecution witness, the majority has not substantiated why this difference is significant enough to classify Rizk's testimony as inherently prejudicial under the Strickland standard. The inevitability of Rizk's testimony suggests that the trial's outcome would remain unchanged regardless of which side presented him. Consequently, Awkal fails to meet the Strickland criteria for ineffective assistance of counsel during the guilt phase, leading to the conclusion that the Ohio Supreme Court correctly applied Strickland. This finding necessitates addressing two additional claims previously unexamined by the majority: (a) ineffective assistance of counsel during the penalty phase and (b) prosecutorial misconduct during the guilt phase. Regarding ineffective assistance at the penalty phase, Awkal argues that his counsel inadequately provided a police report on his involuntary hospitalization and did not present competent mental health expert testimony. The first claim is procedurally defaulted, while the second lacks merit. Awkal's counsel attempted to introduce a medical report from Awkal's 1985 hospitalization during the guilt phase, which was rejected by the trial court due to its illegibility and lack of probative value, as Dr. McGee had already testified about the incident. Awkal claims ineffective assistance of counsel for failing to present a related police report during the penalty phase, but he did not raise this issue in state court, leading to procedural default. Federal habeas relief requires exhaustion of state remedies, and Awkal's failure to include this claim in his appeals bars it now, particularly as he is also statute-barred from seeking state post-conviction review. He has not demonstrated cause and prejudice to overcome this default. Furthermore, Awkal argues that the presentation of mental-health expert testimony during the penalty phase was ineffective. However, the court found that the defense successfully presented Dr. Hewitt, among others, who provided extensive testimony about Awkal's background and mental state, arguing that he was unable to appreciate his actions during the murders. This testimony supported the defense's claim of a mental disease or defect, which is a mitigating factor under Ohio law, thus countering Awkal's assertion of ineffective assistance of counsel. Defense counsel did not act unreasonably by presenting Dr. Hewitt's testimony as a mitigating factor in Awkal's trial, as supported by Ohio Rev. Code § 2929.04(B)(3) and the precedent set in Strickland v. Washington. Awkal's claim that trial counsel was unprepared during the mitigation phase due to Dr. Rizk's testimony at the guilt phase is unfounded, as the legal standards for insanity and mental disease mitigation differ. The term "substantial capacity" in Ohio law allows for a broader interpretation of mental conditions, meaning Dr. Rizk's testimony did not undermine the penalty-phase experts’ assessments of Awkal’s mental state. Awkal also asserted that trial counsel inadequately prepared Dr. Samy, who stated he could not offer a loss-of-control opinion without further details about Awkal. However, Dr. Samy confirmed that Awkal was not malingering and had experienced an acute psychotic reaction at the time of the shootings, making the testimony beneficial and not indicative of ineffective counsel. Regarding Dr. McGee, who was criticized for lacking qualifications in forensic psychiatry, it was noted that she had relevant training and experience in psychiatry and had shifted her practice from pediatrics to adult patients. Ohio law permits any licensed physician to testify on medical matters, and Awkal failed to demonstrate any valid reason to question Dr. McGee’s qualifications. Consequently, her testimony was deemed competent, and defense counsel's decision to present her during the penalty phase was constitutionally sound. In conclusion, Awkal has not substantiated his claims of ineffective assistance of counsel during the penalty phase, and the court will proceed to address his remaining allegation of prosecutorial misconduct. During closing arguments, the prosecutor inaccurately suggested that if Awkal was found not guilty by reason of insanity, he would be released, which misrepresented the law regarding confinement in a psychiatric facility. Awkal claimed this statement constituted prosecutorial misconduct and violated his due process rights. However, because his counsel did not object at the time, the Ohio Supreme Court reviewed the claim under a plain-error standard and ultimately denied it, acknowledging the prosecutor's statement was erroneous but concluding it did not deprive Awkal of a fair trial. Awkal later raised this claim in a federal habeas petition, which was deemed procedurally defaulted due to his failure to meet state procedural requirements, specifically the contemporaneous-objection rule. The court highlighted that plain-error review does not negate procedural defaults. Without a cause and prejudice argument to excuse his default, the issue was not properly presented. The dissenting opinion contended that Awkal had not shown ineffective assistance of counsel and that his claims of ineffective assistance at both trial phases and prosecutorial misconduct were either procedurally defaulted or without merit, advocating for the affirmation of the district court's denial of habeas relief. Additionally, the dissent addressed Awkal's claim regarding the denial of an appropriate expert, indicating that even if it were not procedurally defaulted, it would not succeed on the merits. In Skaggs, the defendant claimed ineffective assistance of counsel and a denial of due process under Ake, based on the choice of a fraudulent psychiatrist for his defense. The court clarified that the claims are distinct: Ake addresses the state's obligation to provide access to a competent psychiatrist, while ineffective assistance pertains to counsel's failure to secure competent testimony. The court found no evidence that the state denied Awkal access to a competent expert, as he had access to McGee, albeit an inexperienced one. Therefore, any Ake claim by Awkal would likely fail. The excerpt also mentions that Hewitt, an unlicensed psychiatrist with questionable credentials, was allowed to testify at the penalty phase. Awkal argued his counsel's deficiencies amounted to a constructive deprivation of counsel, invoking the presumption of prejudice under United States v. Cronic. However, the court determined that Awkal met the Strickland standard for showing prejudice, rendering the constructive denial argument unnecessary. The trial court had previously ruled that a report introduced by Awkal's counsel lacked probative value. Lastly, the absence of a cause-and-prejudice argument in Awkal's briefs does not prevent the court from addressing this issue or proceeding to the merits if such cause and prejudice were found.