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### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
J OHN D AVID S TUMPF , Petitione r-Appell ant,

v.

B ETTY M ITCHELL , Warden, Respondent-Appellee. X

- - - -
> , - - N No. 01-3613

Appeal from the United States District Court for the So uthern D istrict of

Ohio at Col

umbus. No. 96-00668—George C. Smith, District Judge.

Argued: December 11, 2002 Decided and Filed: April 28, 2004 Before: BOGGS, Chief Judge; and DAUG HTREY and MOORE, Cir

cuit Judge s.

_________________ COUNSEL

ARGUED: AlanM. Freedman, MID WEST CENTER FOR JUSTICE, Chicag o, Ill inois, for Appella nt . Carol Ann Ellensohn, OFFICE OF THE ATTORNEY GE N ER AL, Columbus, Ohio, for Appellee. ON BRI EF: Alan M. Free dman, Carol Heis, MIDWEST CENTER FOR JUSTICE, Chicago, Illinois, for

Appellan t. Stephen

E. Maher , OFFICE 2 Stumpf v. Mitchell No. 01-3613

OF THE ATTO RNEY GEN ERAL, Colu

mbus , Ohio, for Appellee.
DAUGHTREY, J., delivered the opinion of the c ourt, in whichMOORE, J ., j oined. BOGGS, C. J. (pp. 44-52), delivered a separate dissenting opinion.

_________________ OPINION

_________________ MARTHA CRAI G D AUGHTREY, Circuit Judge. The petitioner, John David Stump f, is a state prisoner incarcerated
onOhio’s de ath

row. He appeals the district court’s dismissal of his habeas co rpus p etition, f iled purs uant to 28 U .S.C. § 2254, in which h e challe nged hi s 1984 gu

ilty plea and death sentence for one count of aggravate d murder, with the capital specification

that the mu

rder wa s commi tted to escape detection, app rehension, trial, and punishment for other offense s, including

aggr avated r obbery and atte

m pted aggravated murde

r. Specifically, Stumpf

alleges (1) that h

is guilty plea was involuntary

and unknowing; (2) that his due process rightswere violated

by the state’s use of

inconsistent t heories to secure convictions against both Stumpf and hi s acco mplic e, Clyde Wesley ; (3) that he was deprived of effective assistance of counsel at sentencing; and (4) that the Ohio death penalty statute is unc onstitutional on its face and as applied to him.

Prior to entering a guilty

plea, Stumpf

had waived his right to a trial by jury

and elected to have his case heard bya threejudge panel. Under Ohio law, when a defenda nt pleads guilty to aggravated murder , the court must hold an evidentiary hearing to establish a fa ct ual basis for the plea. The threejudge panel held such a hearing in this case and found that there was a factual basis for Stumpf’s plea, that

he was g uilty of aggravated murde

r with the ca

pital specification and,No. 01-3613 Stumpf v. Mitchell 3

ul ti ma te ly, that there was insufficient mitigating evidence to sp ar e S tu mp f f

ro m i mp os it io n o f t he de at h p en al ty.
Under Ohio law at the time of Stumpf’s conviction, th e aggravated

murder statute required that “specific inte nt” be proved to convict someone of that crime. At the evidentiary hearing to establi sha

factual basis for Stumpf’s plea, Stumpf and his attorneys arg

ued that he did not shoot the victim and, indeed, that he was no t presen t when the

victim wa s shot. The state argued in response that Stumpf was the shooter, and the three-judge panel that heard the case adopted the state’s th eo ry, finding that Stumpf was the actual shooter. At a later tri al of Stumpf’ s accomp lice Wesle y, h owever , the sta

t e presented the testimony

of a jailhouse informan

t to establish that Wesley was the

s hooter. When Stumpf s ought to withdrawhis guilty plea on the ba sis of Wesley’s conviction, the state oppos ed his moti on, ar guing that th e informant’s testimony was unreliable.

We conclude that the district court should have granted relief to Stumpf on

either or both

of two alt

ernativ e grou

nds: first, that his guilty plea wa s unknowing and involuntary because he was manifestly not a

ware that spec ific intent was
an element of the crime to which he pleaded g uilty and
, second, that Stumpf’s due proc ess rig hts were violated by

the state’s deliber

ate act ion in sec

uring c onviction s of both Stumpf and Wes ley

for the same crime, using inconsistent theorie s. Because we are g ranting relief on these two ground s, we do not reach St umpf’s challenge to the effec tiveness

of counse l’s repr

esentat ion at sen tencing or to the constitutionality of the Ohio death pena lty statute.

I . PROCEDURAL AND FACTUAL BACKGROUND A. The District Court’s Factual Findings

Most of the underlying

facts are undisputed

in this case and do notaffe ct the legal determinations necessary to the resolutionof th e appeal. For that reason, and bec ause we 4 Stumpf v. Mitchell No. 01-3613

1 W esley and Stumpf h ad carri ed E dmonds’s chrome R aven and W esley’s bla ck .25 calibe r pistol w ith them in to the ho use. review the district

court’s determination of the facts only for cl ear error, we adopt the district court’s chara cterization of th e facts, a s determi

ned by the state courts, a s follows:

OnMay 14, 1984, Stumpf, Cly de Daniel Wesley, a

nd Norman Leroy Edm o nds, afte

r visiting

a bar in Wa shing ton, Pennsylvania, g ot on Interstate 70 and headed west t o ward Ohio. By sundown, they had reached Guernsey

County. They

stopped their car along I-70 and, leaving Edmonds in the car, St umpf and Wesley walked to a nearby

house under the pret ense of needingto make a

phone call. The house they chose was owned and occupied by

Norm an and

Mary Jane Stout. Stout adm itt ed Stumpf and Wesley into his home and allowed them to use the p h one. When they had completed

the call, both Stumpf and Wesley pro duced pistols and an no un ce d a ro bb er y. 1 Stumpf held the Stouts at gunp oint in a ba ck bedro om whil e Wesl ey searched the hou se for ite ms to steal

. At some point , Stout move d to war d Stumpf, and Stumpf shothim b etween the ey es with his pistol. The sh otwas not fatal, and Stout subsequently pushe d Stumpf into the next room. During this altercation, Stout
was struck onthe head with a pistol and shot in the head
a second time. The se actions were enough to rende r him semi-co nsciou s but not to kill him. While lying on the floor in the other

room, Stout heard four gunshots. There is no dispute

th at Mary

Jane Stout was shot and killed during th e course

of this rob

bery , althoug

h there i s a di spute as to whether Stumpf or Wesley fire d the fatal shots. After Mrs. Stout was killed, Stumpf and W esl ey stole the Stout’ s c ar and fled. Stumpf was arrested several days later, a

nd after initially deny

ing anyNo. 01-3613 Stumpf v. Mitchell 5

knowl edge about the se crime s and th en bein g told that Stout had survived, he confessed to being involved.

At the ti me the trial court procee dings oc curred, We sley had not y

et be en ext

radi ted f rom T exa s

. However, subsequent

to Stumpf’s having

pleaded guilty and having been sente nced to death, Wesley was convicted of ag gr av at ed mu rd er by a jury and re ceived a sentence of

life imprisonment withoutthe possibility of parole for 20 yea

rs. The State introduced evidence at Wesley’strial that

Wesley and

not Stumpf f

ired the shots that killed Mrs . Stout. Edmonds was not charged in the Stout mur der an d robbery, but wa s charged for other offenses commi tted during this crime spree, and he agreed to and did testify ag ainst both Stumpf and Wesley concerning the murder of Mar y Jane Stout. Stumpf v . Anderson , No. C-1-96-668 (S.D. Ohio Nov. 9 , 1999). B. Additional Facts Regarding Ballistics Evidence

Of the two bu

llets that struck Sto

ut, on ly pieces of e ach
were recovered. Part of the bullet that struck him between the eyes was recovered

during surgery, while a second fragment
was found in the second

bedroom. A portion of

the bullet that struck Stout in the top of the head was recovered durin g su rg er y, but part o f it had to b e left in p lace. A nother bu ll e t was recovered from the mattress of the se cond bedroom.

Stout’s wife was shot four times in the first bedroom. She died from three gunshots to the left side of her head. T he fourth bullet went

through her lef t wrist and struc k her che st withoutpenetrating the skin of h er c hest. A fifth bullet was recovered from the wall of that bedroo m, a bove the headboard of the bed.

The chrome

Raven was never

recovered by

the police, and Stumpf admitted that he had thrown it out of the car window 6 Stumpf v. Mitchell No. 01-3613

after he and Wes l ey had left the Stout residence. The black .25 caliber pistol was recovered by the police after the m e n sold it, along with one of Stout’s guns , to an in dividual in Washington, Pennsylvania. Ronald Dy e, a ballistics expert fromthe Ohio Bureau of C ri minal Identification and Investigation, a division of the Ohio At torney Gene ral’s offic e, testifie d at Stumpf ’s factu al basis h earing

as to th e f orensic finding s rega

rding bu llets and c artridg e case s recovered from the murder scene. Dy e testified that there
were eight spent cartridges found at the sc ene, that seven o f themhad been fired by o ne gu n, an d o ne wa s f ir ed by a different gun. Dy

e also said that the black

pistol, which had been recovered

by the police, fire d one bullet, while the other
seven bullets were all fired by

the same gun. That

gun cou ld have been the chrome Raven, or one of several other types of guns.
At Stumpf’s plea

proceeding, the prosecutor ar gued that the ballistics evidence supported the conclusion that Stumpf had shotMrs. Stout, since she was appare ntly shot with the same weapon used ag ainst her

husband, say

ing, “T here’s ample evidence to conclu

de that th is defen dant fire d all shots t

hat hit
an ybo dy, b ecause the same gun fired a ll of those shots.” However, duri ng Wesley’ s trial, the same prosecutor put Eastman, Wesley’s cellmate, on the witness stand, to repeat Wesley’sconfess ion to him. According to Eastman, Wesley told hi m t hat after Stumpf had shot Stout in the face, he dropped the chrome Raven and

ra n, at which point Wesley picked up the pistol and shot Mrs. Stout. This version of the crimewas also supported by the ballistics evidence that the black pistol had a ten

dency to jam after firing just one round, whichmay have le d

Wesley to discar d it after shooting it only
once. C. The Guilty Plea Stumpf and W es ley

could not b e tried to gether because Wesley contested h is extradition from Texas, where he had be en apprehe

nded. As a

result, w

hile Wesle

y w as stillNo. 01-3613 Stumpf v. Mitchell 7

d etained in Texas, Stu

mpf plea ded gui lty t

o the ag grava

te d murder of Mary

Jane Stout, in violation of Ohio Rev. Code § 2903.01(B), and to the capital specification under Ohio Rev. Code § 2929.04(A)(3) that the murder was committed for the purpose of escaping detection, appre hension, trial or punishmentfor the offenses of the aggravate d robbery of the Sto uts. He als o plea ded gui lty to th e atte mpted aggr avate d murder of Norma

n Stout and t

o a firearms specification for each count. Sub sequent to the entry of his plea, the prosecutor

notified the trial judge that a plea agr e eme nt had been reached. Stumpf was questioned about the agreement at some length, as detailed below.

D. The Evide ntiary He aring

Under Ohio law, the trial court must conduct an evidentiary hearing in all aggravated murder

cases in volving g uilty pleas, to determine whether t

he re is a factual basis for the plea. Following Stumpf’s entry of a waiver to have a jury hear the evidence, the he aring co mmenc ed befo re a thr ee-jud ge panel.

Du ri ng the factual basis hearing, the prosec ution argued that Stumpf had shot Mrs. Stout, while the d efense argued that Mr s. St ou t w as sh ot by W es le y, n ot by Stum pf. The three-judge panel fo

und Stumpf “ guilty

bey ond a rea sonable doubt”of count one of the indictment (aggr avated murder of Mary Jane Sout), along with specification one (that she was killed t o escape detection for the crimes of a ggravated robbery and attempted aggrava

ted murder) and

specification four (fire a rm), and guilty

of count two of the indictment (attempted

aggravated murde

r of Nor man Stout), wit

h its firearm specification.

E. The Miti gation Hea ring

The mitigati on heari

ng was held one da

y afte r the conclusionof the evidentiary hearing, lasted less than two day s, and consisted of the presentation of 15 witnesses for the defense – primarily some of Stumpf’s friends a nd fam i ly 8 Stumpf v. Mitchell No. 01-3613

members and a few former employ ers an d teac hers – and of
anunsworn s tatement

by St umpf hi mself. Defense counsel present ed no expe

rt witnes ses, beyond a

parole officer and a court clerk who testified as to Stumpf’s lack of a significant criminal history. The g eneral d efense strategy

was to show that S tum pf had a generally good nature, lacked a violent temper, had a fairly

steady work history

but a limit ed education, had a difficu lt hom e environment, and was respectful towards wo men . Stumpf’s unsworn statement recounted his version of the cri me and emphasized that Wesley, and not Stumpf, had shot Mary Jane Stout. Following the hearing, the three-judg e panel sent enced Stump f to dea th, finding that he had established only two mitigating factors: his age (2 3) andhis lack of a significant criminal background. F. Appellate Procedural History

After Stumpf’s conviction, and while his direct appeal was pendi ng, Clyde Wesley was also convicte d, by a jury , of Mary Jane Stout’ s murder . As a result, Stumpf filed a motion for lea ve to withd

raw his g uilty plea or, inthe alterna

tive, to have the trial court set aside his death sentence and gr ant him
a new sen tenci ng heari ng. The motion was summarily denied by two of the three judges who had heard his case at the trial level (the third judge had died in the interim) , and the Ohio Supreme Court affirmed

the order at the same time it affirmed Stumpf’s c onviction

on direct appeal

. Stumpf then filed a pet itio n for post-conviction relie f in
s tate court, raising challenges to the va lidity of his jury

trial waiver and the effectiveness of trial counsel’s repr esentation, particu larly with regard to counsel’s advice to Stumpf that he would not receive the death penalty if h e pleade d gu il ty. In the petition, Stumpf requested an evidentiary hearing and submittedm ultip le affidavits in support of his claims. The tria l court dismissed the petition without an evidentiary hearin g, and this decisionwas affirmed by the Ohio Court ofNo. 01-3613 Stumpf v. Mitchell 9

Appeals

. The Ohio Supreme Court dismissed the appeal, see State v. Stumpf

, 560 Ohio St. 3d 712(1990), and the United S tates Supreme Court subsequently denied c ertiorari

. Se e Stumpf v. Ohio , 502 U.S. 956 (1991).

Stum pf next filed a

petition f or a writ of habea s corpus i

n federal court, alleging as gr ounds for rel ief

that the O hio Death Penalty statute is unconstitutional, both as written and
as applied to Stumpf; that his guilty plea was no t knowing and intellig ent; that h

is waiver of the rig ht to a jury trial

was invalid; that he received ineffective assistan ce o f counsel at the penalty

phase; that he wa s not perm itted to be present a t his motion for a new trial; that the trial court improperl y considered

non-stat utory aggr avatin g circumstances and ignored substantia

l mitigat ing evid ence when decid

ing his sentence; that the trial court erred in deny ing his mo tion to vacate his sentence or

withdra w his guilty plea ba sed on newly d is covere d evidenc e; that considera tion of pos tsentence proceedings by

less than the entire three-judge panel violated his due process rights; and t hat the trial court erred by fa il in g t o f

ol lo w a n O hi o s ta tu to ry r equ irement that the court produce a meaningful written analy sis of the mitigation evidence as a basis for imposing a dea th sentence.

The district court issued two opinion and orders. The firs t found that several of

p etitioner’s claims had been procedu rally defaulted, see Stumpf

v. Anderson , No. C-1-96- 668 (S.D. Ohio Nov. 9, 1999); the second denied relief on the remainingclaims, see Stumpf v. Anderson , No. C- 1-96- 668 (S.D. O hio Feb. 7, 2001). Howeve r, the dis trict cou

rt did grant a certificate of appealability on the follow i ng five issues: (1) whether the statutory provisions governing

Ohio’s cap it al punishment scheme violate the Fifth, Sixth, Eighth, and Fourteenth Amendm ents to the United States Constitution, either on thei rface or as applied to Stumpf; (2) whether

Stumpf’s g

uilty plea was knowing, intelligent and
vo lu nt ar y; (3) whether Stumpf received the ine ffec tive assis tance of

counsel a

t the pena

lty p hase of h

is trial; (4) whether Stumpf’s due process rights were violated when 10 Stumpf v. Mitchell No. 01-3613

the t rial cou

rt faile d to vaca

te his sen tence or allow him to

w ithdra w his plea based on newly discovered evidence; and (5) whether Stumpf received the ineffective a ssistance of appella te counsel. Before us, Stumpf has pressed the first four cl ai ms but has a

bandone d the cla

im that app ellate counsel was ineffective.

II. STANDARD OF

REVIEW

Becau se Stumpf’s f

ederal habeas p etition wa s filed in November

1995, the amendments to 2 8 U.S.C.§ 2254 contained in the Anti

terrori sm and Eff

ective D eath Pena

lty Act of 1996 (AED PA) do not a

pply to this case. See Lindh v. Murphy
, 521 U.S. 32 0, 336)(1 997) (fi n di ng that A

EDPA changes do not apply to cases pe nd ing at th e time of AEDPA’s enactment on A pril 24, 19 96). Stumpf ’s claims
, therefore, must be eva luate d under § 2254(d) as it existed prior to the enactment of AEDPA.

Ac co rd in gl y, we review the district court’s disposition of
a petitio n for wri t of habe as corpu s de novo , although the districtcourt’s

f actua l findings are reviewed only for clear
error. McQueen v. Scroggy , 99 F.3d 1302, 1 310 ( 6th Cir. 1996). We also defer to the stat e court’ s factua l finding s, whichmay be re

butted on ly b y “clear and convincing evidence.” Id

. Howeve r, this de ferenc e only

applies to “basic, primary fa

cts” and not to mixed question of law and fact, which are subject to de novo review. Id

.

III. ANALYSIS A. The Validity of the Petitioner’s Guilty Plea

The Supreme Court has held, in Boykin v. Alabama
, 39 5 U.S. 238 (1969), that when a defe ndant enters a guilty plea, the state bear s the burden of showing that the plea was
vo lu nt ar y, intelligent and knowing. Determining whethe r a plea is voluntary, intelligent and know ing requires an

analy sis of the totality

of the circumstances. Garcia v. Johnson , 991No. 01-3613 Stumpf v. Mitchell 11

F.2d 324, 326 (6th C ir . 1993). Wh en a def endant br ings a federal habeas p etition challeng ing his pl ea, the s ta t e gener ally satisfies this burden by producing a transcript of the plea proceeding. Garcia , 991 F.2d 324, 326. A state court finding that

the plea was proper

is accorded a presumption of
correctness, unless the transcript of the pl ea proc eeding is inadequa te to demonstrate that the plea w as vo lu nt ar y, inte l ligent

and knowing. Garciaat 326-27 ; Dunn v. Simmons , 877 F.2d 1275, 1277 (6th Cir. 1989), overrule d on other grounds by Parke v. Raley , 506 U.S. 20 (1992).

The p roper standard of review in this case, then, turns o n whether the rec ord of state court proceedings surrounding Stumpf’s guilty

plea “le av[es] doub t as t o whethe r the plea
was in fact intelligent and voluntary .” Dunn v. Simmons , 877 F.2d at 1277 ( citing Roddyv. Black , 516 F.2d 1380 , 1384 (6th Cir. 1975)). If the recor

d does leave doubt

as to whether the plea was vo lu ntary, intellige nt and knowing, and the defendant argues that it was not, the State bears the burden of proving the contrary

. Id . ( citing Boykin v. Alabama , 395 U.S. 238, 243 (1969).

Alth ough Stumpf does not conte nd explicitl

y that his gu

ilty plea was invalid because he was not awar e that spe cific intent
was an element of

the crime to which h e pleade d guilty , this argument is inhere nt in the fact that he continually professed his innocence of committing the actual shooting both during and after the guilty

plea. The record

reflects, for

example, h

is expectationthat

he would be given an opportunity to present evidence to the three-judge panel releva nt to his conduct. ” Moreover, the rec ord indic ates tha t the explic it s ta tutory requirement

of int ent w as ne

ver exp l ained to Stumpf during the plea colloquy. Furtherm ore , a lt ho ug h h is at to rn eys represented

to the court that they had e xplained to Stumpf

the elements o f the cr ime, their own arguments to the court d u ring the plea

colloquy and the e

videntia ry hearing to establish a factual basis for the plea refut e th e typical pre sumpt ion that def

ense cou nsel have fully and ade quately explained all eleme nts of a crime to aclient before he pleads 12 Stumpf v. Mitchell No. 01-3613

2 Ohio Rev. Code § 2903.01 was a mended on J uly 1, 1996. Sect ion (D) was removed and r eplaced wi th addit ional descr ipt ions of aggravat ed murd er. See Ohio Rev. Cod e § 2903 .01 (2002). gu il ty. Indeed, defe

nse counsel’s representations to the court either betray their

own ignorance of

the i ntent element of ag grav ated

murder, or repr

esent a woefully

inadequa

te understandingof the m eaning of a guilty plea. Finally, the plea colloquy itself, al on g with Stumpf’s statements to the court thr ough all stages of the procee dings, demonstrates Stumpf’s unwillingness to admit to intent.

At the time

of Stumpf’s crime and subsequent conviction, Ohio’s a ggravated murder sta tute specified that specific int ent
was a ne cessar

y e lement of

aggr avated m urder. T he statute read as follows: § 2903.01 Aggravated murder

. (A) No person shall

purp osely, and with prior calculation and design, cause the dea th of another. (B) No person

shallpurposely ca

use the death of another while fle eing im media tely after commi ttin g o r attemptin g to commit kidnapping[sic], rape, a ggravated arson or arson, aggrava

te d robbery or

robbery, a

ggravated burglary or burglary , or escape. (C) Whoever violates this secti on is guil ty of aggravated murder, and shall be punished as provided in section 2929.02 of the Revised Code. Ohio Rev. Code § 2903.01 (1984)(amended 1996). 2
Stumpf was convicted unde r § 2903.01( B), whi ch, al thou gh it specifie s that the m

urder mu st

be caused “purposely ,” does not specifically r

equire intent. However, subsection ( D) o f the same stat

ute clar ifies tha t inte n t is indeed a necessary element of aggrava

ted murder:No. 01-3613 Stumpf v. Mitchell 13

(D) No person shall be convicted of agg ravated murder unless he is specifically found to have in

tended to cause the death of another . . . .

Ohio Rev. Code § 2903.01 (1984) (amended 1996). Furthermore, the statute limits fact-finders from inferring specific intent sole ly f

rom an ac cused’s

p arti cipation in a felony murder : [I]n no case shall a

jury in an aggravated

murder case be instructed in such a manner that it may believe that a person w ho commits or attempt s to commit any offense listedin division (

B) of thi s section

is to be conc lusively inferr ed, because

he eng aged in

a common d

esign with oth ers to commit the offense by f orce and violence o r b ecause the offense and the manner of its com missio n would be likely to produce de ath, to hav e intend ed to
cause the death of any

person who i s killed during the commission of or atte

mpt t o c ommit, or flight from the commission of or attem pt to commit, the offense. If a jury in an a ggra

vate d murder

case is in structed

that a person who commit s or attempts to commit any offense listedin di vi si on (B ) o f t hi s s ec ti on ma y be in ferred, because he eng aged in

a com mon desig

n with othe

rs to commit the offense by

force or violenc e or because the offense and the ma

nner of i ts commissi on w ould be likely to produce death, to have intended to cause the death of any per

son who is killed during the commission of, attempt

to commit, or flight

from the commission of
or attempt to c ommit the offense, the jury also shall be inst ructe d that the inference is nonconclusive, that the inference may be con sidered in determining intent, that it is to co nsider all evidence introduced by the prosecution

to indicate the p erson ’s intent and by the person to indica

te his lack of inten

t in determining

w hether the person specifically

intended to cause t

h e death of the person killed . . . . 14 Stumpf v. Mitchell No. 01-3613

Ohio Rev. Code § 2903.01(D) (1984)(amended 1996). Fi na ll y, the fact-finder must also b e instructed that “the prose cutionmust prove the specific intent of the person t o have caused t

he death by proof beyond a re asonable doubt.” Ohio Rev. Code § 2903.01(D) (1984) (amended 1996). Read together, these provisions indicate that specific intent may not be inferred solely

from the fact of pa

rticipati on in a felony murder but must be established explicitly by the prosecution.

Ohio cour

ts have confirmed this interpretation of the statute. In In re Washington
, 691 N.E.2d 285, 287 (1998), the S upre me Court of Ohio considered an appeal reg arding whether there wa s suffici ent evide nce to sup port the s pecific intentrequisite for an

aggravated murde

r convicti on, in a ca se i nwhich the murder was committed in the cou rse of a ro bb er y. As the court explai ned: “Washington cannot [be found guilt y of] agg r avated m urder ba sed solel

y on his complicitous actions. It is also necessary for the state

to establish that Washin

gto n act ed with the

kind of cu

lpability required of the commission of aggravated murde r.” In re Washington
, 691 N.E.2 d at 286. I n this par tic ula r case, the court found tha

t there w as suff

icient evidence for the trial court to conclu

de th at Was hington had acted with the requisite i ntent, be cause the trial c ourt infe rred inte nt only after “hearing and consider

i ng all the evidence” instead of presuming intent based on Washington’s participation in the robbery. In re Washington , 691 N.E.2d at 288.
Here, the record of the plea procee ding clea rly demonstrates that the def endan t did not possess an
un der standing of the aggravate d murder charge to which he pleaded guilty . Althoug

h the distr

ic t court ulti

mately concluded

that the state court re cord was suggestive of a knowing and volun

tary plea, it d

id conce de th a t the plea proceeding

was “not a picture of clarity .” We agree, and we note that this “lack of clarity

” first surfaced at

the moment the prosecutor

informed the court that a plea agre ement had been reache d. He ga

ve the fo llowing a

ccount of the agr eement:No. 01-3613 Stumpf v. Mitchell 15

SCOTT: Your Honor, the first matter that would be d

ealt with or the Sta

te would a sk leave

of Court pu

rsuant to Criminal Rule 7 (D)

and Ohio Re

vised Co de Sec tion 2941.30 to amend by in

terlinea tion spec ification one to the first count of

the I ndictmen t in order that it may re ad
as follows: T

he Gran d Jurors fu rther find and specify under Ohio Revised Code Section 2929.04(A )(3 ) in compl ia nce with Ohio Revised Code Section 2941.14 that the aforesaid offens e bein g the of fense c harge d in the first court, the Aggravate d Murder, was [committed] for the purpose of escaping detection, appr ehension, trial
or punishment for other of fenses – the words, “other offense s” are the first change, com m itted by the above named John David

Stumpf, towit: Aggravated Robbery and then we’re adding the la nguage “and Attempted Aggravated

Murder”. If that amend

ment is granted, the defendant t he n would en

ter a ple a of gu

ilty to the first count contained in the Indictment, being the Aggravated Murder count and a

plea of guilty to specif ication one to the first count as amended; would also e n ter a plea of guilty to the sec ond count in t he Indictment, being the offense of – excuse me, back up. As to the first count he would also enter a plea

of guilty to spec ification four to the first cou

nt. So, he w

ill be plea ding to the first c ount, the amended specification one to the first c ount and spec if icationfour to the first count. With regard to the second count, being the Attempted Aggr avated Murder, he would enter a plea of guilty to the Attempted Agg ravated

Mu rd er an d a pl ea of gu il ty t o th e specification

to th e se con d co unt . If

the plea s of guil

ty to the two counts and the specifications I’ ve mentioned are
a c cepted by the Court, the Court would then proce ed under Criminal Rule 11(c)(3) to d etermine if there is a factual basis for the plea of guilty to the Aggravated Murder charge and the existence of the ag gravating circumstances and i f th e pleas a re acc epted the

State would then ask l eave to e

nter a no lle pros a s t o specific ations two

and thre e to the first count and also a nolle pros as to the third, fourth and fifth counts in the 16 Stumpf v. Mitchell No. 01-3613

3 The plea agreement also merged specificat ion four of count one, and speci fi cati on one o f coun t two. T hat is, bo th g un spe cification s were to be tre ated a s part o f the sam e offen se for se ntencin g pur pos es. Indictment

and including the specification t o the third count.
That is my understanding

of the arrangement that we a re proposing to the Court at the present time. 3
Reviewingthis portion of the trial court record, thedistrict court commented that “the prosecuting attor ney’s explanation of the plea agreement wa s somewhat difficult to follow, and that criminal defendants in such situations will often answer questi ons p osed by the trial cour t without a clear understandingof each and e very te rm uttere d – espec ially if advised by counsel to do just that.”

But the tr

ial cour t in this case, rather t han attempting to elucidate the prosecutor’s explanation for the d

efenda nt, im mediately turned to the defendant for verification of the p rosecutor’s account of the plea agree me nt. A s the rec ord reve als, eve n at this sta

ge in the ple a ag reemen

t, the def endant a ppeare d to be una

ble to follow the

procee dings:

JUDGE HENDERSON: Thank you, Scott. Befor e ruling on the motion or amendment of the Indictment, I would ask Counsel for the defense i f they wish to comment upon the statement of the Prosecutor. Tingle?

TINGL E: If the Court please, the statement made by the Prosecuting Attorney

is an accura

te statement based upon
our discussions with him earlier today and one upon which we are ready

to proceed at this time.

JUDGE HENDERSON: I’m going to ask the Cou n sel for the defendant to inform the defendant that I am going to ask one question of the defendant very shortly

and that question is this : Do you, John David Stumpf, affirma tively acknowledge the ag

reement that has beenNo. 01-3613 Stumpf v. Mitchell 17

stated by t he Pro secutor and concurred in by the defendant’s counsel? Having forewarned the defendant of the question that

is to be asked, I’m going to ask that question now. Stumpf, do you affirma tively acknowl edge th

is agre ement?

STEPHENS: Would you repeat the question for him Your Honor?

JUDGE HENDERSON: Stumpf, do you aff irm atively ackno wledge the a gree ment that has been stated by the Prosecut or and concurre d in by

you r attorne ys? THE DEFENDANT: Yes, sir.

Ob vi ou sl y, not every a

mbiguity in a pl ea p roceed ing, withoutm ore, will demonstrate that a plea is not “knowing and intelligent.” However, the exchange set out above turned outto be merely the

beginning of much confusion that was t o follow. After

allo wing amendment of the indictment, the court conducted

a plea colloquy , examining

first the defense attorne ys, and then t

he defe ndant:

JUDGE HENDERSON: The Indictment seems to be in order and the Court

is going to make c ertain

inquiries of the counsel for the defendant and the defe ndant as to the proposed en tr y o f the guilty plea. I t is necessary

that questi on be asked and answers thoughtfully given in a
caseof this sort. I’m going to inquire of

the attorneys for the defend ant, h ave you ful ly invest iga ted the facts and the law of thi s case an

d determ ined whether the

re exists any question of t he a dmissibility of any claimed admissions
, confessions or other evidence under Federal and State l aw an d advised your c lient concerning the same?

TINGL E: We have, Your Honor. 18 Stumpf v. Mitchell No. 01-3613

JUDGE HENDERSO

N: Have you

informed your c lient of the elements of the offenses with which he is charged, of all defenses which may be avail able to hi

m and of a

ll of his Const

itutional r ights, bo th State a

nd Fede ral?

TINGL E: Yes, we have.

After his attorn ey s indicated that they had e xplained the elements of the crime to t

heir client, Stumpf was sworn in for the limited purpose of answering questions conc erni ng his guilty plea, and affirme d his attor

ney ’s statements, as f

ollows:

JUDGE HENDERSON: Stumpf, I’m going to a sk you
a number of questions and if you do notundersta

nd those questions you may

inquire of your a

ttorneys to better abl e you to un derst and ev erything t hat is being aske d you. These have to do with the rights that you have as a per son who has been accused of a cr ime. Do yo u understand

that you h ave a co nsti tuti onal p rivil ege ag ai nst se lf- inc rim ina tio n? THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: With a full understanding that anything tha t you say

may be used a

gainst you, a

re you willing t hen to answer questions with regard to y our understa nding of you r right s? THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: Now , you heard the questions that I p u t to y

our attor ney s, I b elieve, relative

to their advice t o yo u and thei r counse ling of y

ou, did y ou not? THE DEFENDANT: Yes, sir.

JUDGE HE NDE RSON: Do y ou person

ally ackno wledge that your

attorneys have

informed and advised you as they

say they have?No. 01-3613 Stumpf v. Mitchell 19

THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: Are y ou satisfied with the services which they

have performed for y

ou? THE DEFENDANT: Yes, sir. Judge Henderson next questioned Stumpf as to his physical and mental health, and whether he was presently under th e influenc e of drug s or alcohol. He then went over the crimes to which St

umpf w as plead

ing gu ilty . The foll owing is

a complete accoun t of his expla

nation to the defen

dant:

JUDGE HENDERSON: Do you understand that you are charged with seve

ral offe nses? The fi

r st off ense being that of Aggravated Murde

r, that there have been two specifications being pres en ted at this time in this particular procee dings, to

wit: Aggravated Robbery and Attempted

Murder and possession o f a f irearm w hile committing

those off enses. D o yo

u underst and that? THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: Do you understand also that yo uhave been charged w ith the offense of Attem

pte d Aggravated

Murder, which is a felony in the first degree? THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: For the first count, which is that of Aggravated Murder, you are subje ct to the following penaltie s: you

are subj ect to be in g – to a sentence of twenty years w ithout probation, thatis, a sentence of life withoutprobation fo r tw enty y ears; a sentence of life withoutproba tion for a period of thirty years a nd the death penalty by electroc

ution could be imposed a

gainst you. Do y

ou understand that, sir? THE DEFENDANT: Yes, sir. 20 Stumpf v. Mitchell No. 01-3613

JUDGE HENDERSON: Do you understand also that you would be subject under the – under specification four to the first count

to three yea

rs incarceration before y

ou begin to serve any

other sentence? THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: Do you understand a lso that the Attempted

Aggravated Murder, which is set fo rt h in count two, is a felony in the first deg ree and tha

t yo u could be sentenced

to be incarcerated for

a period of four, five, six or seven but not more than twe nty -five y ears? Do you understand tha

t, sir? THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: Do you understand also that for
a fe lo ny o f the f

irst degree that y

ou could be fined not more than $10,000.00?
THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: And that you c ould receive both th e f ine and the incarceration, which I have mentioned? THE DEFENDANT: Yes, sir.

JUDGE HENDERSO

N: Are you pr

esently on probation or parole, sir? THE DEFENDANT: No, sir.

As indicate d below, St

umpf has a

low I Q and has

b ee n fo und to be mentally and e motionally immature

. N e verthel ess, the trial court never inquired into Stumpf’s ability to understand

the guil ty plea proceedings or the nature of the charges aga

inst him. The explanation set out above is the only accoun t o f the crimes provided to Stumpf by theNo. 01-3613 Stumpf v. Mitchell 21

4 Stumpf did ini tial

the in terli neation amendment to the indictment during the plea h earing , but ther e is no ind ication in the re cord that he had actual ly read th e i ndi ctm ent at any poin t or th at it had b een rea d to hi m. M oreo ver, we conc lude th at use o f the term “purp osely” is not suf ficient to put the defendant on no tice that sp ecific inten t, which is expressly more than int ent impl ied f

rom part ici pati on ina fe lony , i s a r equir ed el ement of aggravated murder. court. Nowhere does the court explain the elements, or even read the charg es as liste d in the ind ictment. 4
Judge Hender son then pr

oceede d to question Stumpf about the rights he w as surre ndering by pleading guilty . The exchang e went a s follows:

JUDGE HENDERSON: Do you understa nd that if you plead guilty y

ou will waive, that is, you will give up the right to a jury trial or trial by

the Court; the right to be presumed in no ce nt an d u nt il pr ov ed gu il ty b eyo nd a reasona ble doubt; the right to c onf ront and to question th e witnesses against y ou and to have compulsory process for obta ining wit nesses in you r favor; the right to re main silen t or to testify at y our trial as you may choose and tha t no inferences may be drawn if y

ou choose not to testify at y

our trial. Do you un derstand that y ou may be givin g up thos e right s?

STE PHENS: Your Honor, with reference to that, we h ave exp lained that to the defendant. He was goin g to respond but we have informed him that there is, after the plea, a hearing or

trial relative to the underlyi ng facts so that he is of the belief that there will be presentation of evidence and I wanted to make that c lear t o th e Court with ref erence to his rig ht of waiv er of tri al to Court

. JUDGE HENDERSON: I understand that and I apprec iate your

bringin g that to my attention , Stephen s. Of course in the sen tencing p ortion of thi s trial you do have those righ ts to speak in your own behalf to present 22 Stumpf v. Mitchell No. 01-3613

evidenc e and testimony on your ownbehalf

. My statement to you and my

question t

o you was intended to except those rights that you do have. Counsel, is that
sa ti sf ac to ry? STEPHENS: Yes, sir.

W e read this exchange to reflect a misunderstanding between attorney Stephens a

nd Judge Henderson. Stephens, answering

for S tum pf, asse

rted the defenda nt’s rig ht to present evidence during “a hear ing or trial relative to the underlying

facts” of the case. He was pl ainly referring to the factual basis hearing and asserting the de fe ndant’s wish to chall enge the state’s version of the facts. Judg e He nderson indicated in respon se th at th e defendant could present evidence durin g “the s entencing portion of this trial,” appare ntly refer ring tothe mitigati on phase . In a ny c ase, this
was the first indi cati on that the defenda nt did not wi sh to
c o ncede the st

ate’ s ver sion o f the

fact s. The

part ies ne xt discussed a prior suppression h earin g, and then the court resumed questioni ng Stumpf

:
JU D GE HENDERSON: Do you understand, Stumpf, that if any promises or i

nduceme nts have b een made

to you by any person

to cause you to plea

d guilty that they
are not binding upon the Court, that if you plead g uilty that Court, this panel of Judges, will decide your sentence after considering all of the evidence that is to be presented and evidence in mitigation

of punishment and after considering a presentence inve stigation, report and recommendation

approved an d prepa

red by the pr

obation d epartment

and that y

ou may receiv e the maxim

u m sentence prescribed by

law. Do you understand

that, sir? THE DEFENDANT: Yes, sir.

JUDGE H ENDERSON: Have any promises or inducement s bee n made to you, sir, other than theNo. 01-3613 Stumpf v. Mitchell 23

agreement

which y ou have a ffirma tive ly acknowledg ed on the record? THE DEFENDANT: No, sir.

JUDGE HENDERSON: Are y ouin fact guilty of

count one with specification one and specification four?

STEPHENS: One moment , Your Honor. Your Honor, the defendan t has aske

d me to ex

plain his an

swer. His

answer in yes. H

e will r ecite tha t with obvio usly his understanding

of his right to present evidence at a later time rela tive to his

conduct, but he’ll r

espond to t

hat.

JUDGE HENDERSON: At no time amI imply

ing that the defendant

will not have the right to present evidence in mitigation hearing

and I do a pprecia te it, Stephens, that you bring this to the attention of the Court. And I’m going to ask that the defendant, himself, respond to the question that I

asked with that understanding that he has the right to

present evidenc e in mitig ation. I ’m going to ask the defendant if he is in fact guilty of the charge set forth in Count one, i ncluding specification one and specification four? The Defendant: Yes, sir. Again, the ex change b etween Step hens a nd Ju dge He nderson has all the hallmarks of a seriou s misu nders tandi ng. Stumpf was unwill ing to pl ea d “ gu il ty” withoutexpressly reser

vi ng his right to present evidence “relevant to his conduct.” Read with the preceding ref erence to presentingevidenc e, this could only refe r to the subsequent evidentiary

hearing to estab lish a factual basis for the plea. Stumpf, ob vi ou sl y, was reit erating his desire to challenge the state’s accoun

t of his actions, and had the procedure called for
animmed iate determination of the evidence relied upon by the state tosupport

the defendant’s imminent conviction, the misunder st an ding would undoubtedly have c ome to light 24 Stumpf v. Mitchell No. 01-3613

before the plea was finalized and St umpf’s fate was sealed. Once again, however, Judge Hende rson refer

red to the defendant’s “right

to present evidence in mitigation hearing,” complete ly

missing the clear

imp licat ion that de spite his admission of guilt
, Stump f was concerned about preser ving his ability to contes t the state ’s acco unt of his a

ctions.
Moreover, defense

counsel’ s argum ents during the subsequ ent evidentiary heari ng confirm the defendant’s desire to contest the state’s versionof the crime. From the opening statem e ntat that hearing, counsel arg ued that Wesley, not Stumpf, was the one who shot Mary Jane Stout. For example, defense counsel’s opening statement included thefollo wing: [T]he scenario as outlined by Sc ott [the prosecutor] does f ollow the sequence of events as they did occur, ex cep t for the statemen

ts as to the actual shooting of Mary Jane Sto ut, which the defendant believes the evidence wil l show occurred at the hands of Daniel Wesley

. The district court reject ed S tumpf’s a rgumen t that his position that he w as not the shooter rendered his guilty plea in vo lu nt ar y, relying

on Garcia v. Johnson , 991 F.2d 324, 327 (6th Cir. 1993), as authority for th e proposi tion that a “temporar

y quali fication of position by the defe ndant is not sufficient to rebut the presumption of correctne s s of state court pro c eedings, and to support a finding that [the defenda nt] did notundersta

nd the nat ure of hi s plea.” Stumpf

v. And erson , 2001 WL

242585 (S. D. Ohio 20 01) (quot in g Garcia , 991 F.2d at 32 7). We conclude that the district court’s relianc e was misp laced, however , becau se Stum pf’s qualification

was more tha

n t emporary , and it was never addressed by

the trial court. By contrast, in Garcia , the defendant first claimed that he had not intend

ed to kill hi s victim. Garcia , 991 F.2d at 327. After this state

ment, the judge c onducted

“a su bstantial discussion” with the defendant regarding the facts of the case, and Garcia then admi

tted that he had inte

nded to kill hi sNo. 01-3613 Stumpf v. Mitchell 25

victim. Id. Here, the trial judge, be fo re accepting Stumpf’s plea, had not informed the defenda nt that spe cific intent was
anelement of the crime to which he was pleading, nor had he inquired whether Stumpf had actually shot the victim or, if not, ha d specifically intende d that she be killed. In th e absence of some

inquiry, Stumpf’s express reserva tions of his
a bility to put on ev

idence o f his ver sion of the crime , alon g with his attorneys’ ar

guments that he did not intend, and was noteven present for, the killingof Mrs. Stout, should have put the trial court

on notice that Stumpf was not aware of thetrue import of his plea.

Th e district court did not focus on the question of intent

. Rather, it found that Stumpf’s position t h at he was not the sho oter was consistent with the specification to which h e pleaded guilty. Howe

ver, in making this finding, the district court fa iled to recognize that Stumpf’s position is inconsistent with the charge to whi ch he al so pl eaded gu il ty. It is th is inconsistency

that giv es rise to

his claim t

hat his plea was not validly entered.

Ge ne ra ll y, a reviewing court presumes that def ense counsel has explained

th e el ements of the crime to a defendant pleadingguilty, eve

n where the record does not reflect any statement by c ounsel to t hat effect. Berry v. Mintzes , 726 F.2d 1142, 1147(6th Cir. 1 984) (“i t may be appro priate to presume that in most cases defense counsel routinely explain the nature o f the off

ense in sufficie

nt detail to give the accused notice”); but cf. Henderson v. Morgan , 426 U.S. 637, 642-48 (1976) (finding th at , w he re th e d ef en da nt ’s at to rn eys had argued to the c ourt that t heir clie nt had not i

ntended t o harm the victim, there could be no presumption that counsel had explained

to their client that intent

was an element of the crime). In thi s case, de fense counsel did state to the court that they had informed

Stumpf of the elements of the crime. In a typical case, such an assurance would pre vent a reviewing court from finding that

a plea was involuntary

. In this case, however, the record clearly establishes that

Stumpf sought

to preserve his righ

t to argue t

hat he was not the shooter and 26 Stumpf v. Mitchell No. 01-3613

thus counterbalances theassurances given by defense counsel that they had explained the ele ments to Stumpf.

We recognize, of course, t hat Stumpf need not have been the “principal offender” – the actual shooter – in order to have specific ally inte nded the d eath of M ary

Jane Stout. Nevertheless, it is clear fr om the r ecord of the fac tual basis hearing that the state’s the o ry of g uilt relied completely on Stumpf being t he p rincipal offender. The prosecution presented no evidence tha

t St umpf intended Mrs. Stout’s death, other than a rguing t hat he w as t he a ctu al s hoo ter . In the closing

argume nts at the e

videntia ry hearing , defens e counse l, c ontending

that the prosecut

ion had no t met its burden with regar d to the ba sis for se eking the death pe na lt y, eff ect ively challen ged the prosecu tion’s pro of as to sp ecific intentto kill. The

prosecu tor resp on ded that “[a]s to a pu rp ose to kill, whoever shot Mrs. Stout didn’t intend to do her any favors w hen he shot her four time s. It s eems to me that shooting a person four time s shows wha

t yo ur in t ent was.” Indeed, the three -judg e panel, which presumably knew of the intent element, found, beyond a reasonable d oubt, t hat Stumpf was “the principal offender” in the aggravated murde r and made no ot

her find ing as to specific inte nt. Th eir conclu sion in this regard indicates that the panel found that Stumpf’s shooting of Mrs. Stout provided the req ui site specific intent, a s there w as no othe r eviden ce in the record to satisfy this e lement. Given this finding, it is unlikely that Stumpf can be sa

id to have

knowing ly c oncede d specif ic intentto kill by pleading g uilty, when he con

tinued to maintain throughout

the proceedings that

he had not been the one who a

ctually shot the vi ctim.

We conclude that the record of Stumpf’s plea hearing and the subsequen t e videntiary hea ring, taken together, demonstr ate that the plea h e en tered wa s constitut ionally invalid. Boyk

in holds that, “because a guilty plea is an admission of all the elements of a for mal crimin

al char ge, itNo. 01-3613 Stumpf v. Mitchell 27

5 Indeed, in Henderson , the de fenda nt had heard the indic tment, whic h charged that he had “wil lful ly” st abbed the victim, read in ope n
cou rt. Henderson , 426 U.S. 637 , 642. The Sup reme Court found that this

was not sufficie nt to put h im on notice that intent was a required element of the cr ime to which h e was p leadin g guilty. Id. at 645- 46. cannot be truly voluntary

unless the defendant possesses an understandingof the law in relation to the facts.” Boykin , 395 U.S. 238, 243 n.5 (1969). This u nderstanding must include “real notice of the true nature of the charge aga inst him, the fir st and most universally rec ognized requirement of du e process.” Henderson v. Morgan , 426 U.S. 637, 644 (1976) (quoting Smith v. O’Grady , 312 U.S. 329, 344 (1941) (finding that, because the defendant did no t know i ntent was an element of the crime to which he plead ed guilty, his plea could not be voluntary). 5 We have held that “a guilty plea is notdeemed voluntary

where the person

enterin g it does so withoutunderstand ing o f the consequences of his plea.” Unit ed States v. Stubbs , 279 F.3d 402, 411, 412 (6 th Cir

. 2002) (quo tation omitted) (finding, in a split decision in a
case i nvolving

a mandat

ory minimum sen

tence, t hat if th e “essential elements of the crime with which the de fendant was charged were no t underst

ood by the defe ndant, his counsel, or the di s trict court, then the defendant’s guilty plea would be constitutionally invalid”).

As disc ussed above, when the state court record of a defendant’s plea doe s not demon str ate that t he plea i s constitution ally adequate, the state bears the burden of
s howi ng the plea

was volun

tary , knowing

and intel ligent. Here, the state has present ed no extri

nsic evidence to counter the record of the proceedings discussed above. I nstead, the respondent

has explicitly relied on that recor d alone to argue that the plea was voluntary , knowing, and intelligent. Given the paucity

– indeed, the lack -- of the evidence to re fute what is cl ear onthe record, we must conclude that the state has therefore not met its burden of showing that the plea may stand. 28 Stumpf v. Mitchell No. 01-3613

6 Stumpf als o cla ims t

hat his plea was i nval id bec ause he was not

aware that

he remain ed el igi ble f or the de ath pe nalty. W e disco unt this

as a possibl e b asis for re lief , however , because the re cord of th e plea hearing indic ates t

hat t he judge, whil e li sti ng the pos sibl e s enten ces Stumpf could receiv e for ag grava te d murder , did inform Stumpf at t he ti me of his plea that

“the death penal ty by

elect rocuti on could be imposed against you.” The judge then asked whether S t umpf understood, and Stumpf ans wered, “ Yes, si r.” Furthermore, the totality of the circumstanc es surrounding the plea provide additional evidencethat th e plea was not
vo lu nt ar y, know ing, and i ntell igent. F or exa

mple, Stumpf argues that the fact

t hat he re

mained e ligible f

or the de ath penalty and, therefore, pleaded guilty under an agreement that provided absolutely no benef

it in the formof a reduction in possible sentenc e, is an additional indication that his plea was notknowing and

intellig ent. 6 This argument standing alone would be not carry

much weight, given the well-rec ognized principle that a g uilty plea ca nnot be re

ndered i nvolunta r y merely be cau se, in hind sight, it t urned ou t not to be the best decision. See McMann v. Richardson , 397 U.S. 759, 769-71 (1970). However, Stump f’s decision to plead guilty – by agreement

– to a crime with a capitalspecific ation, es pecially inthe absence of any

identifia ble rea son to take such a cours e of action, creates an additional infe rence that his plea was invalid. In combination with his position that he was not

the shooter, whi ch re veals his ignorance of specific intent as a n element of the crime, the record indicates that Stumpf’s plea
was involuntary “bec ause he ha[d] such a n incomplete underst anding of the charge that his plea cannot stand a s a n intelligent

admission of guilt.” Ivy v. C aspari , 173 F.3d 1136, 1141-42 (8th Cir. 1999)(guilty plea involuntary where defendant was not inf

ormed tha

t inte nt wa s a necessary element of the underly

ing felony

).

The question of counsel’s effectivene ss in representing Stumpf is not before us as an ind epende nt ground for relief. It is, howev er, rai sed in the context of c hallenge to the validity of hi s guilty plea. The

record shows clearly

thatNo. 01-3613 Stumpf v. Mitchell 29

St umpf has always de

nied being the shooter. I

t is also cl ea r that defense couns el ’s strategy , throughout both the evidentiary he aring and the mitigation hearing, was to argue that after Stumpf shot Norman Stout he panicked and fled, t hat S tumpf was not even present in the home when Mary Jane Stout was shot, and that Wesley was, in fact, the one who shot Mrs. St

out. One p ossible, if

unlikely , expla n ation for co un se l’ s s tr at eg y is th at th ey the mselves were unaware that specific intent was an

element of the crime. But, failure to research the most basic details of the statute un d er which their client was charged wou ld be outside the “range of competence” to which the defendant is en t itled. See Henderson v. Mor

gan , 426 U.S. 637, 647 (1976). Perhaps
more disturbing is the possibility that counsel, realizing that intentwas an element

of the offense , nonethe less chos e to allow their client

to plead guilty a

nd then – and only then

– to contest the e xi stence o f that ele ment. Bu

t this, too, would manifest ly constitute ineffective assistance, since a plea is not merely a confession but serves as a conviction, with only the resulting sentence left to be decided. Boykin v. Alabama , 395 U.S. 238, 242 (1 969). It is true that Ohio requires a f actual basis hearing in cases of aggrav ated mu rder, bu t it would nonethel ess be re ck le ss an d p la in ly i ncom petent for an attorney to rely on a fa

ctual basis hea

ring to r efute an element of a crime to which his client has already pl eaded g ui lt y. Fi na ll y, whether Stumpf’s lawyers w ere aware of the intent element or not, their

behavior compels the conclusion that Stumpf himself wa s not a

ware of the inten

t element

. Stumpf’s observation

of his attorneys’ a

ttemptto contest the state’s version o f events , and hisownposition throughout the plea colloquy that he intended to chall enge the state’ s factsa position evidently sanctioned by his attorneys, rea

ffirms the conclusionthat

Stumpf was not awar

e that by pleading guilty to aggr ava ted murde

r he was admitting

to specif ic intent t o kill Mary Jane Stout.

There are othe

r indica tions in the record, as well, pointing to the existe

nc e of at least a reasonable probability that Stumpf would not have pleade d guilty had he known that 30 Stumpf v. Mitchell No. 01-3613

sucha plea w ould have am ount ed to a dmit ting th at he specific ally

intended the de a th of Mary Jane Stout. A mitigationinvestig ato r lat er reported, in an affidavit, that “John did not wa

nt to plea d guilty .” Mo reover, affida vits fromStumpf’s family affir m the im pr es si on th at hi s a tt or ne ys were less thancandid

in explaining to them the motive behind the plea. for example, Stumpf’s mother and sister said that they were told by Stumpf’s

attorney that he would notreceive the death penalty

because of his plea.

We conclude from the record before us, as it relates to the murder of Mary Jane Stout, that there exists a r eas onable probabil ity

that, had the petitione

r been f ully informed of the elements of the of

fense to which he

was plea

din g a nd consequences of

that plea, he would not have pleaded guilty to her aggravate d murder.

B. The Due Process Violation

At the time of Stumpf’s post-plea evidentiary hearing and his mitigation – or sentencing – hearing, his a ccomplice, We sl ey, was still

in Texas, f

ighting extradition. During

both Stumpf’s pl e a hearing, held pursuant to Ohio Rev. Code § 2945.06, and his sentencing hearing, the pr osecutor argued, and the three-judge panel ultimately found, that Stumpf was the principal offender, responsi ble for actually

shooting Mary Jane Stout. After

Stumpf’s se

ntencing inthe fall of 1984, the state tried Cl

yd e Wesley befor

e a jury in the spring

of 1985. Wesley was also charged with aggravated murder with capital specific ations, and during his trial, t he state argued that We sl ey, not Stumpf, was the shooter. To s u pport this argume nt, the state

present ed testimony from Eastman, Wesley’scellmate , about sta tements We sley

had ma de to Eastmanc oncer

ning details about the murder. Wesley took the stand and denied that he wa s the shooter, but the jury convicted him of the aggravated murde r of Mrs. Stout. At the sentencingphase of W esle y’s trial, the same jury then recommended

a sentenc e of 2 0 years to life, r ather than the de at h p en al ty.No. 01-3613 Stumpf v. Mitchell 31

Stumpf argues that the prosecutor’s use of two conflicting theories concerning the identity of the shoote

r to convict b oth him and Wesley constitutes a due proc ess violation.

The Constitution’s Due Process clause guaran te es every defendant the rig

ht to a fair trial. Lassiter v. Department of Soc. Servs ., 452 U.S. 18, 24-5 ( 1981); Tur n er v. Louisiana , 379 U.S. 4 66, 471-7 2 (1965). The Supre me Court ha s also emphasized

that “because the prosecutor is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. . ., it is as much his duty to refra i n from i mproper methods calculat ed

to produce a wrongful conviction as it is to us e every legitimate method to bring about one.” Berger v. Unite d States , 295 U.S. 78, 88 (1935), overrule d on oth e r grounds
, Stirone v. United States , 361 U.S. 212 (1960). Drawing on the principle that the Constitution’s “over riding
concern [is] with the justice of the f inding of guilt,” United States v. Agurs , 427 U.S. 97, 112 (1976), several of our sister circuits have found, or implied, that the use of incon sis tent, irr econcil able theories to secure convict ions agains t more tha n one defendant

in prosec utions for the same crime violates the due process clause. See , e.g. , Smith v. G roose , 205 F.3d

1045 (8th Cir. 2000) ; Thompson v. Ca lderon , 120 F.3d 1045 (9th Cir. 1997) (e

n banc); Dra k

e v. Kemp , 762 F.2d

1449 (11th Cir. 1985) (en banc) (Clark, J., specially con curring); cf

. Nichols v. Scott , 69 F.3d 125 5 ( 5th C ir. 19 95) (i nvol ving a situation where b oth defe ndants had

shot at the

victim and

it
was unclear

whose bul let had a

ctually hit an d killed the victim; the court found

that the two theories advanced by the prosecution

were no t inconsist

ent beca use both de fendant s could have been convicted under the law of partie s). On this issue of first impression in this court, we now join our sister circuits in finding that the use of inconsiste

nt, irreconcilable theories to convict two defendants for the same crime is a due process violation. 32 Stumpf v. Mitchell No. 01-3613

In Smith v. G

roose , the Eig

hth Circuit considered

a case i n whicha prosecutor had used t wo different, conflicting statemen ts by a co-def endant a t succes s ive trials to convict the petitioner at the first trial and a second indivi dual at a second trial. Smith v. Groose , 205 F.3d 1045, 1049 (8th Cir. 2000). That case involved a group of four young me

n who
were looking for homes to burglarize one evening

. In th e cour se of t heir search, they saw another group of burglars break ing i nto a home. They r ealized they knew the se men and decided to help them break

into the ho

use. The residen ts
we re murdere d in the co urse of t he burg lary . The primar y issue at trial was whet

her the murders took place before or after the fo ur young me n bega n participating in the offense. One of the four men first told the police that theother group had committed t h e murders without the participation of the group of four. Two days later , he told police that he had seen
one of the fo

ur men fr om his group s tabbing

the victim s with
a pocketknife; he later recanted this story . The prosecutor thenused both state

ments to ob tain conv

ictions against

men in each of the two groups. Id . at 1047-49. Examining the record

before it, the Eighth Circuit held that “[ t]h e use of inherently f actually contra

dictory theories violates the principles of due process.” Id . at 1052. The court found that in ord

er to amo unt to a due process violation, an inconsistency

inth e prosecutor’s theories “must exist at the
core of the pr

osecutor ’s case

against defendants for the same crime.” Id

. This const

itutes a du

e proce ss violation becau se it renders con

vi ctions unreliable, given that “[the s]tate’s duty to its citizens does not allow it to p ursue as many convictions as possible without regard to fairness and th e search for truth.” Id . at 1051.

Infindin g a due pro cess viol ation unde r these circumst ances, the Eighth Circuit in Smith v. G roose was careful to disting

uish the f acts in its case from those in the Fifth Circuit’s opinion in Nichols v. Scott , 69 F.3d 1 255 (5th Cir. 1995), where the cou rt did not re ach the d

ue proce ss question in a case in which the prosecutor arg ued i n twoNo. 01-3613 Stumpf v. Mitchell 33

7 The majori ty opini on res ted on an inef fect ive as sis tance of

counsel cla im

. See Thompson v. Cal deron , 120 F.3d 10 45, 1051 -56 (9th Cir. 1997)(en banc). Howe ver, desp ite the fact tha t a maj ority of ju dge s did not join in t he por t ion of the opinion finding a due process violation, severalof the conc urring a nd d issenting j udge s indica ted tha t they wo uld find a due process v iolat ion for the us e of whol ly i nconsis tent theori es to convict sepa rate d efend ants. See , e.g. , Thompson , 120 F.3 d at 1063- 64 (Tashima, J., concurri ng, joi ned by Th omas, J.)(agre eing with the premise that “due p roce ss is vio lat ed when a pro secuto r pursu es who lly inconsist ent theori es of a case at separ ate t rial s” but ar guing t

hat, in order to find pr ejud ice, the c ourt m ust de cide w hich o f the two th eorie s is tru e)(qu otat ion omitted ); Thompson , 120 F. 3d at 1066 -73 ( Ko zinski, J., dis senting, joine d by N elson , J.)(“In the case o f mutua lly incons iste n t verd ict, which I am not sur e is the case h ere, I b elieve th at the state is require d to take the nec essary steps to set

aside or modify a t least one of the ver dicts .” Id. at 10 71.) separa te cases that different defendants had e ach shot the one bulletthat killed the victim. Id . at 1268. The distinction in the Nicholscase was that both perpetrators had fired shots at the victim, an

d both cou

ld have been convicted under a fe lony murd er theory . There fore, th e prosec utor’s a rgumen ts w er e not fac tually inconsistent, because both de fenda nts could hav e been convicted even if the p rosecutor had used the identical argument in both cases. Groose , 205 F.3d at 1051. Finally , the Ninth

Circuit c onsidere d a similar situation i

n Thompson v. Cald

e ron , 120 F.3d 1045 (9th Cir. 1997) (en banc), vacated on other grounds , 52 3 U. S. 538 (19 98) . In that case, the pro se cutor argued at one trial that, based on jailhouse informant testimony, one defe ndant had committed
a rape and murder. At a second trial, the prosecutor used different jailhouse inform ant s to argue that the second defendant had the m otive and disposition to commit the crimes. A plurali

ty of the en banc Nin th Circuit, 7 specific ally
ex cluding situations where new evidence comes to light
, found that a prosecutor cannot use inconsistent theories of the
same crime in order to secure multiple c onvictio ns. Id . at 1058. The court echoed Jud ge Cla rk’s concurrence in an 34 Stumpf v. Mitchell No. 01-3613

Eleventh Circuit c ase whic

h, althoug h it granted habeas relief on alter nate gr ounds, als o involved

inconsiste

nt theorie s:
The prosecu tor’s theories of the same crime in the two different trials negate one anot

her. They

are tota lly inconsiste nt. This flip flopping of theories of the offe nse was inheren

tly u nfair. U nder the peculia r facts o f th is
casethe acti o ns by the prosecutor violate the funda mental fairne ss essent ial to the v ery

concep t o f justice. . . The st ate can

not divide

and conq

uer in this
manner. Such acti ons reduc e crimina l tria ls to mere gamesmanship and rob them of their supposed search for the truth. Thompson
, 120 F.3d at 10 59 ( quot ing Drake v. Kemp , 762 F.2d 1449, 1479 ( 11t h Cir. 1985) (en banc) (Clark, J., concurring)).

In this c ase, the

state cle arly

used inconsistent, i rrecon cilable theories at Stumpf’s heari ngs and Wesley’s trial At each proceeding, the prose cutor argued that

the defendant had been the one to pull the trigg er, res ulting in the fata l shots to Mary Jane Stout. At Wesley’s trial, the prosecutor rel ie d
onEastman’ s testimony

and on the

gun-sw itching scenar io argued by Stumpf, t o secure Wesley ’s conviction. The prosecutor asserted: Believing he had

killed Mr. Stout, [Stumpf] pitched the g unaside and left the immediate area back the ha llwa y downthe steps to the basement. At that point [Wesley,] whoseown gun was jammed, picked that chrome colore d Raven up an d as M rs. Stout sat helplessly on her bed, shother four times in order to leaveno witnesses to the crime.

Thesestatements are irreconcilably i nconsiste nt with thos e made by t he very same pro secutor

at St ump f’s pl ea heari ng, when he t old the tri al court :No. 01-3613 Stumpf v. Mitchell 35

Believing that the had killed

Mr. S tout, Stumpf [then] turned the same chrome colored Raven automatic pistol uponMary Jane Stout as she sat on the bed and shot her four times. T hree tim es in the left side of the head and neck and one ti

me in the w

rits; obviously

in order not to leave a nyone avail able to id

entify him.

The state claims that, because Eastman’s testimony was not availab le at the time

of Stumpf’s g

uilty plea, Stum

pf is rea lly assertingWesley ’s due pr ocess cl aim in

the guise of his own. The state also argue s that “it was of no im port t o the c harge of capital mur der

against Stumpf which of the two [defenda nts] killed the witness [Mrs. Stout]” since the capital specification

was that Mrs. Stout was killed because she was a witness to the crime, and not that the defendant had been the shooter. Finally

, the sta

te ass erts that

inconsiste

nt, irreconcilable

theories were not used in the se two ca ses, because the prose cution did

not rely on

Eastman’s testimony at Wesley’s trial. None of these arguments is persuasive. First, Stumpf

clearly ha s a due p rocess claim even t hough Eastman’s testimony was not available a t the time of his tria

l. It is tr u e that this is not a case where the prosecutor selectiv ely

present ed evide nce in Stumpf’s case to support

the theory of the murder he was arguing in that case. However, t he due process challenge to the use of inc onsistent theories is based on

th e notion of f

undament al fairness. Be cause inconsistenttheorie s render convicti ons unrel i abl e, they constitut e a viol ation of the due process rights of any def endant in whose trial they ar

e used. In Groose , the pe titio ner was in fact the defendant at the first trial, and the second, incon sistent theory did not come to light until four years after his conviction, at the s e cond trial. Groose , 205 F.3d at 1048. Nevertheless, the Eighth Circuit found that his due proces s r ights ha

d been vio lated. Logical ly, “both [defenda nts’ due process rights] were prejudiced by the prosecutor’s actions or neither’ s were.” Drake , 762 F.2d at 1479 (Clark,J., concurring). Furthermore, it is disingenuous of the state to argu e that the re is no vi olation of

Stumpf’ s 36 Stumpf v. Mitchell No. 01-3613

8 In fact, W esley’s co unsel w anted to inform the jur y that t he prosec utor

had p revio usly argu ed tha t Stu mpf, and not W esley, was the shooter. The prosecutor argued that Stumpf had never admitted to f iring the shots , and t

hat hi s own argumen t was irr eleva nt. Th e trial co urt did not all ow Wesley ’s couns el t o dis cuss Stumpf ’s proceedi ngs i n fr ont of the jury. rightsbecause the prosecutor had noknowl edge of Eastman’s testimony at the time of

Stumpf’s p lea. The

statelearned of Eastman’s testimony

soon after Stumpf’s plea and sentencing and ye t cont inued to ma

intain tha t the conv

ictions of both Stumpf and Wesley, eac

h of which was obtained

by arg uing that a differ ent individual was the shooter, were sound and reliable. 8 Indeed, as discussed below, the stat e maintained that Eastm an’s t estim ony was un relia ble du ring a hearing on Stumpf’s motion to vacate his plea and/or his sentence. To this day, there

has been no suggestion

of corrective action by the state.

The state’s s econd a

rgumen t, with which the district court agreed, is that the identity of the shooter was not the c ri ti cal issue in either trial and that therefore the use of diffe rent theories did not violate Stumpf’s du e p rocess rights . By pleadingguilty to cap it al murde r, the sta te’s arg ument go es, Stumpf admitted c oncerte d action w ith Wesley

incausingthe death of Mary Jan e Sto ut for the purposes of avoiding detection. All that was left for the prosecution then to prove, under this theor

y, was that Mrs. Stout wa s killed so t hat th e defendant could esc ape dete c tion for o ther cr imes. But

this argument igno res the fact that, as the agg ravated murder statute existed in 19 84, spec ific inte nt was a necess ary element of the crime. Ohio Rev. Code § 2903.01(B); see also supra , pp.15-16 . Beca

use Stumpf

never c onfesse d to speci fic intentto kill Mrs. Stout, the prosecution bore the burden of proving beyond a re asonable doubt that Stumpf was guilty of the charge.

Fi na ll y, the state

argue s that ir

rec oncilable theories were notused bec ause Ea stman’s testi mony was comp letelyNo. 01-3613 Stumpf v. Mitchell 37

unreliable. State’s counsel even asserted at oral arg ument that the state did not re ly on Eastman ’s testimony i n order t o prosecu te Wesley. This arg

ument is just short of ast oundi ng, given the fact that in seeking to convict Wesley of aggravated
mu rder, the prosecution offered no proof of the ele ment o f specific intent other than the theory that Wesley was the actual shooter. That the s tate relied on Eastman’s testimony is evident from the f

act that i t presen ted his tes timony

to the ju ry, and from the fact that it prevented Wesley ’s co un sel frompresent

ing evid ence of Stumpf’s g

uilty pl ea. Had the stat e presented a theory

of the crime consistent with the theory it asserted at Stumpf’s evidentiary heari n g, it wou

ld have had no ne ed to keep that information from Wesley ’s ju ry.
The district court ultimately acce pted the state’s argument that the core issue at Stumpf’s evidentiary he aring was not the identity of the shooter. However, in reaching this conclusion, the cour t started

with what

we belie

ve to be a

faulty assumption, i.e. , that

“the state was not required to prove that petitioner was the a

ctual sho oter.” T

he dist rict cou rt, in concludingthat the s pec ification to which Stumpf pleaded gu il ty, Ohio Rev. Code § 2929.04(A)(3), did not requirethat Stumpf be proven to be the “principal offender,” ove rlooked,
once again, the fac t that the aggr av ated mur der statu te itself requires specific

intent. See discussion supra pp. 15-16. The sta te was not re quired to prove tha

t the petit

ioner wa s th e actual shooter, b

ut it was r

equired to prove s

pecific intent.

Even proceeding from

the district court’s false assumption, however, we cannot agree w ith th e court’ s ultimate conclusion. The district court found that, altho ugh the state
was not required to prove that Stumpf was the actual shooter, “th e fact r emains that the state did argue that petitioner was [the] actual shooter and the trial court did find that petitioner

w as the actu

al shoote r.” The district c ourt wen

t on to
reco gniz e that the tr

ial cour t c ite d this very finding a s “a reason, and a very

substantial reason” that

petitioner received the death penalty. The dis trict court found, however, that 38 Stumpf v. Mitchell No. 01-3613

9 Indeed, only two fact-finde rs actua lly obse rved Eastm an’s testimo ny. The jury at Wesley’s tri al obviously credit ed Eastman enough to fin d W esley

guil ty. The tria l judge, in pre- tri al procee di ngs, made at least one c redib ility det ermi nati on whenhe f ound that Eastman was not

a government agent within the m eaning of Miranda v. Ariz ona , 384 U.S. 436 (19 66)

. See State v. Wesley , 1986 O hio App. LEX IS 8651 (1 986). habeas relief was not warranted, because the Supreme Court of Oh io’s i ndepe ndent reweigh ing of t he aggrav ating a n d mitigating circ ums tances cured any misplaced reliance on Stumpf having been the actual

shooter. Apparently e

ngaging insuch a reweighing proc ess, the Oh io Supreme Court concluded

that Eastman’s testimony was not sufficient to tip the bala nce of a ggra vating a nd mitiga ting fa ctors.

We cannot agree with this reasoning , because we do not believe that a reweighing of the fa ctor s used to support impo siti onof the de ath pena lty c ures the due proc ess violation at

issue. The

Ohio Supre

me Court, it is true, found that “the testimony of

a cellmate during Cly

de Wesley’s trial is of minimal

credibi lity , especially in lig ht of appellant’s guilty plea and the substantial evidenceto the contrary adduced during appellant’s sentencing hea ring.” State v. Stumpf
, 32 Ohio St. 3d at 106. Bu t, putting aside for the momentthe quest

i on o f whether Eastman’s testimony need be credibl e for a due process violation to b e est ablished by the state prosecution’s presentation of and evide

nt relian ce on it, there is no explicit state cou rt d etermination regarding Eastman’s credibility to which this court must give deference. Alth ough there is a presumption that a state court’s factual findi ngs are correct, this presumption applies on l y to basic facts and to thos e facts

implicitly established through the trial court’s unique ab ility

to judge the witnesses’ credibility and deme a nor. See McQueen v. Scroggy , 99 F.3d 1302, 1310 (6th Cir. 1996). No court

at any level considering Stumpf’s claims actuall

y obs er ve d E as tm an ’s te st im on y. 9 The firs t
co urt explicitly

to examine t

he trans cripts of

that testi mony , the two-judg e trial pa

nel, failed to

make any factua l finding s, instead denying Stumpf’s motion summarily. TheSupre meNo. 01-3613 Stumpf v. Mitchell 39

10 Eas tman te stified at W esley’s trial that W esley told him that aft er Stumpf had sh ot Mr. Stout, Stumpf pani cked and dropped the . 25 caliber Rave n. W esley then picke d up the Ra ven an d sho t M rs. Sto ut a fe w times. W hen Mrs. Stout moaned, W esley shot her again to make sure she was d ead

.
11 One could argu e that thi s st ory is more li kel y t o be p lausible because it is so similar to Stumpf’s acco unt of the crime, whi ch he

recoun ted many mont

hs bef ore Eas tman tes ti fi ed. Courtof Ohio recognized as much when it found that the trial court had “apparently

” determined that Eastman’s testimony did not change the bal ancin g of mitigating and agg ravating factor s. The Supreme Court of Ohio also pre sumably examined the transcripts, co nclu ding that the testimony was of “minimal credi bili ty.” Neither the presumed factual finding by the trial court, nor the more explic it

one made by the Supreme Cour

t of Ohio is d

ue the ty pe of com

plete deferencecontemplated

by t he state , becau se neithe

r of thes e courts had any be

tter opportunity to judge Ea s tma n’s credibility than we do.

Fi na ll y, the state presses an arg ument that Eastman’s testimony was not credible

because it relied on “the sa

me type of implausible gun switching and gun jugg ling that Stump f told.” 10 This, of course, is beside the point. The pertinent fact for Stumpf’s due process claim is not whether Eastman’s gun-switching

st ory is plausible, 11 but whether the prosecut ion relied on that story to sec ure Wesley’s c onviction. The prosecution

found Ea stman’s te stimony credibl e enough to present the “implausible gun switching” theory to Wesley’s ju ry a nd ob ta in hi s c on vi ct io n o n t ha t t he or y.
Inholding t

hat a con stitutiona

l viola ti on occur

red in this case, we recognize that at least one circuit has suggested that
a due process violation for the use of conflicting theories may be obviated when the second of two inconsistent theories resultsfrom the discovery of new evidence. See Thompson v. Calderon
, 120 F .3d 1045, 1058 (“when no new significant 40 Stumpf v. Mitchell No. 01-3613

evidence comes to light a prosecutor can not, in ord er to convict two defendants at separate trials, offer inconsistent theories and facts re gardin g t he same crime”). We have no quarre l with thisproposition, to the exten t that it is me ant to ackno wledge a

state’s need

to continue to investigate crimes and to prese nt all ava ilable ev idence i n court. H owever , in this case, a ltho ugh Eastman’s testimony did not come to light until after Stumpf had

been convicted and sentenced to death, the state ha

d many opportuni

ties to corre ct its use of conflicting theorie s. Stumpf, u pon lear ning of t he state ’ s relianc e o n the theory that Wesley was actually the

shooter, ti mely file d a motion to

vacate his guilty

plea and /or his sentence. The two ju

dges he aring t

his motion expressed s ome concern over whether there was evidenc e that Stumpf was not infact the shooter, but the sta te did not ta

ke that op portunity to advocate that

all the available evidencebe presented to the sentenc ing panel.

A due process claim is a mixed question of law and fact and is th erefore subject to de novo review. Willia ms v. Coyl e , 260 F.3d 684, 706-07 (6th Cir. 2000). Here, the proper standard of revie w is whether

there is a reasona ble probabil ity th at the prose cutor’s

use of inc onsistent, irreconcilable theories rendered the conviction unreliable. See , e.g. , id. , 260 F.3d at 706-07 ; Br ady v . Maryland , 373 U.S. 83 (1963); Strickland

v. Washington , 466 U.S. 668 , 694(1984). A “reasonableprobability” is a probabi lity sufficie nt to undermine the outcome and is less than a preponderance of the evidence. Strickland

at 694; Lyons v. Jackson
, 299 F.3d 588, 599 (6th Cir. 2002).

Measured against this standard, the s tate’s due proc ess violation mandates that

both Stumpf’s plea and his sentence be set aside . First, t

here isa reasonableprobability that, had the prosecution not purs ued conflicting theories concerning who was the actual shooter, Stumpf either would not have pleaded guilty or the thre e-judge panel would nothave found
a fa ctual basis for the specific intent element of aggravat e d murder. Second, a

nd perha ps more lik

ely , there i s aNo. 01-3613 Stumpf v. Mitchell 41

reasona ble probab ility

that, had the prosecution not pursued inconsistenttheories, Stumpf would not have been sentenced to death.

As discusse d at leng

thabove, it was necessaryfor the threejudge panel to find that Stumpf specific ally

intended the deat h of Mary Jane Stout i

n order f or it to ac cept his p lea to aggravated

murder. Ohi o Rev. C ode § 2903. 01(D ) (“[ n]o person s hal l be convi cted of a

ggra vated mur

der unle ss he is specif ic ally found to have intended to cause the death of another”). The prosecution offered virtually no evidence regarding intentother

than its contention that Stumpf shot Mrs. Stout. Had

the prose cution’s

alterna te theory bee

n heard by the thre e-judg e panel, there is a reasonable pr

obability that it would have found Stumpf guilty of somethi ng less than aggravated murde

r. Moreover, there is more than a reasonable probability that the three-judge panel would not have sentenc ed Stum pf to death had the pr

osecution not employed

inconsistent and irreconcilable

theories. In explaining its reasoning for finding that the aggravating

factors in Stumpf’s case outweighed the mitigating factors (and therefore that Stumpf deser ved th e death penalty ), the co urt’s first pronouncement was that it had “f[ou n]d beyond a re asonable doubt that the Defendant was the principal offender in count one of the indictment,” i.e. , the aggravated

mu rde r ch arg e. In turn, this finding prevented the panel from conclud ing th at Stumpf w as not the principal offender, which would have b ee n “a powerful mitigating factor.” S tate v. Green , 90 Ohio St. 3d 352, 363 (2000)(notingthat “[v]ery few dea th sentences have been approved against persons who were not the p rin cipal offender”). In fa

ct, durin g the he aring on Stumpf’s motion to withdraw his guilty plea , one of the origina l panel members, Judge Bettis, stated: [I]f we had not be en satisf ied that Stu

mpf was, i

n fact, the trigger man, the principal offender. . . that may very well have had an effect upon this Court’s determination 42 Stumpf v. Mitchell No. 01-3613

of whether the deat h penalty sh ould follow. I’m not saying it would, but it’s possible.

It is true that Judge Be ttis m ade th is com ment d uring a hearing in which the panel had

before i t both a transcript of Eastman’s testimony and evide nce of the prosecution’s reliance on that theory of the c rime. However, t

he fact that the panel did not grant Stumpf’s motion to w ithdraw h is guilty plea do es not dictate the conclusion that they did not find Eastman’s testimony persuasive . First, i n d enying the motion summarily

, the p anel stated, “The Court took the matter unde r advisement and after having consider ed the same, does overrule the Motion to Withdraw Former Plea and the Alter native Mo tion to Set Aside the Sentence Imposed.” Bec au se the court gave no basis for its ruling, the denia l of relief could have been made o n any number of

ground s; it would be impossibl e to div ine its reasoning. Hence, the panel’s rejection of Stumpf’s motion does not negate the conclusionthat, had the p rosecution’s alternate theory been before the panel at a sentencing proce eding, the re is a
reasona ble probability tha

t the panel would not have sentenced him to death. Second, only two of the three judges
onthe original panel were still alive when Stumpf brough t his motion. Stumpf’s contention that his motion should have been heard by three ju dges wa s rejec ted by

the OhioSupreme Court:

R.C. 2945.06 expre ss ly provides that “[t]he judges or a majority of them may dec ide all questions of fact and law arising upon the trial. . . .” Unanimity is mandated only when th e p an el fi nd s a de fe nd an t g ui lt y or no t g ui lt y. Whether appellant was entitled t o withdraw his guilty plea or to a new sentencing

hearing were questions of law, properly

determined by a

majority of the pane l. State v. Stumpf

, 32 Ohio St. 3d 95, 105 (1987).

Unde rO hio Rev. Code § 2945.06, then, only one judg e’s opinion was required to deny Stumpf’s motion. However,No. 01-3613 Stumpf v. Mitchell 43

under the same

provision , unanimity

was req uired as to questions of guilt

and penalty. Be cause the third judge on Stumpf’s panel died

before the prosecution’s alternate theory and Eastman’ s testimony

came tolight, the trial court’s denial of Stumpf’s motion can prove nothing as to whether that third judge, at the factual basis or mitigation hearings, would have been persuaded by

Eastman’s testimony, and the state’ s reliance on it, that Stumpf should either

not have been found guilty of aggravated

murder, or should not have received the de at h p en al ty.
Fi na ll y, as petitio

ner point s out, Ohio cour

ts have held that reweighing

of aggravating a

nd mi ti ga ti ng ci rc um st an ce s b y a higher court is not a cure for errors in the sentenc ing proc ess, wh ere the result of the weighing proce ss, had the corre c t factors been present, is unknown. State v. Davis , 28 Ohio St. 3d 361, 372 (1988) (“W e cann ot accept independent review as a cure in this particular action because we cannot knowif the result of the wei ghing process by the three-judge panel would have been different

had the im

permissib le aggravating circumstance not been present.”).

IV. CONCLUSION

Onthe basis

of th e t wo claims addressed in this opinion, that Stumpf’s gu ilty plea was not voluntary , knowing and intelligent

and that his due process rights were violated by the prosecut ion ’s use of inc onsistent, irreconcilable theorie s to convict both him and his accomplice , we REVERSE the districtcourt’s decision and REMAND this case to the district court w ith instructions to issu e the wri t of habe as corpu s in the petitione

r’s fav or, unles s the state elects to retry him within 90 da ys o f t he da te of

en tr y o f th e conditi onal writ

. Becau se we are granting Stumpf relief on both his involuntary plea and due process claims, we need not reac h his remaining arguments. 44 Stumpf v. Mitchell No. 01-3613

______________ DISSENT

______________ BOGGS, Chief Judge, diss entin g. The court has reversed the district c ourt’s de

nial of a writ of ha

beas c or pus on two ground s: that Stumpf’s guilty plea wa s inv olunt ary and unkn owing, and that his due process rights in his own trial and sentenc ing wer

e violate d by

the sta te’s later use of evidence against another person. I disagree with both

of these conclusi ons, and th erefore respectfully dissent from the granting of the writ of habea s corpus.
I

I begin with the second of the court’s two gr ounds, a s I believe that i s the more

profound ly mi staken. T

he major ity cites three cases from

other circuits to buttress its theory that Ohio’s prosecu

tion of Wesl ey , which to ok place in April 1985, some seve n months after Stumpf pleaded guilty and
was sentenced to death, somehow vi olates Stumpf’s due process rights. None of the three ar e germane to this case.

In Thompson v. Calderon , a cele brated Ca

lifornia death penalty case, the court vacated a dea th sentence because the prosecutor

presented

two mutual ly

incompatible theories for the rape-murder during con tempo raneous trials of two defenda nts, Thompson and Leitch. Thompson v . Calderon, 120 F.3d 1045 (9th Cir. 1997 ) (en banc) (plurality ), vacated

on other grounds , 523 U.S. 538 (1998). During the pre-trial procee dings fo r bot h men, and in Leitch’s trial, the prosecutor’s theory was tha t Leitch killed the vict im, h is girlfriend, because he wanted to get bac k together with

his exwif e; Thompson assisted him in the crime. Id . at 105 5. In Thompso n’s t rial, however, the prosecutor arg ued that Thompson had

raped the victim and then killed her to cover up his act. He presented different jail house infor mants at each tria l to bolster each contradictory theory. Id . at 1056.No. 01-3613 Stumpf v. Mitchell 45

The Ninth Circ

uit held that this shift in

arguments violated a pr osecutor’s duty to discover the truth and that he w a s improper ly trying to sec

ure convictions for

their own

sake. Thompson, 12 0 F. 3d at 1058-59; see, e.g., Berger v. United States , 295 U.S. 78, 88 (1935) (stating that the government’s fundamental interest in a criminal prosecution i s “not that it shallwin a case, but that justice shall be done”). It also found that Thompson, who was tried first, was prejudiced

due that the fact tha

t “[o]nly in Thompson's tria

l did the prosecutor change the theory

and the arguments [from those presented in the pre-trial hearing], and offer f acts that directly c onflicted with the under

lyin g prem ise of the charges he broug ht.” Thompson , 120 F.3d at 1059. Distinguishing Thompson from the case before us is not difficul t, however . First of

all, th e pr osecutor in Thompson pursued the two mutually incompatible theories of the mur der at contemporaneous trials after joint pre-t rial procee dings, an d deliber ately ch o se witnesses who would tell the conflicting
s tory that he needed to convict each defenda nt. Kn owingl y putting on false evidence is prosecu tor ial misconduct that violates the Due Process Clause. Napue v. Illinois , 360 U.S. 264, 269 (19 59). Nothing in this case indicates that the prosecutors deliberately pr esented false evidence: Stumpf pleaded guilty to aggravated murder with the specification of killing a witness and attempted aggra vated murder with a firear m. The State

had eve ry reason t o believe his ov er-all admis sion of responsibility. I t was under no obligation, however, to accept at face value his assertion that he did not actually pull the tr

igge r, espec ially

inli ght of contradictory forensi c evidence, such

as the fact that

a .25-caliber weapon killed Mrs. Stout, the same caliber as Stumpf’s gun.

Nor did the prose cutor in Thompson collect new evidence between tr ials; h e simply manipulated the fac ts that he had. In c ontrast, Wesley’s trial took place seven months after Stumpf pleaded guilty , during which time informant Eastman told pr os ec ut or s t ha t W es le y con fessed that he murdered Mrs. St ou t. Ho we ve r, We sl ey de nied havi ng conf essed to 46 Stumpf v. Mitchell No. 01-3613

1 It is worth noting t

hat constit

utional cl aim made in Thompson ultimately did not

pr ev ent the defen dant’ s exe cuti on on Ju ly 14, 1998. Calder on v. Thompson , 523 U.S. 538, 566 (19 98) (reinstating the ma nda te den ying hab eas re lief). Eastman, and

the forensic evidencesuggested that Eastman’s statement was not airtight. A cursory compari son of the

facts to those in Thompson th erefor e revea ls that the

Californ ia case has little application to our case. 1

In Drake v. Kemp , an Eleventh Circuit c ase, the majority remanded for a n ew trial because the burden of proof was improper ly shifted to the def

e ndant and the prosecutor violated the defendant’s rights du ri ng his cl osing ar

guments inthe sentencing phase. Drake v. Kemp, 762 F.2d 1 449 (11th Cir. 1985) (en banc). A

single concurring judge arg

ued that D r ake’s Fourteenth Amendment rights had been violated. The prosecutor, in trials that were a y ear apart, argued

in one instance that a

co-def endant mu st

have committed the murder alone and, after having secure d a conviction, argued that same person was not strong enough to co mmit the crime, and therefore Drake m

ust h ave hel ped. T he con curri ng jud ge conclud edthat it “seems inescapable that the prosecutor obtained Henry Dr

ake's conviction through the use of testimony he did not b elieve; bringing this c ase und er the logical if not actual factual framework of

. . . Napue. ” Drake, 762 F.2d at 147 9 ( Clark, J. specially concurring ). Drake therefore does not further Stumpf’s case either: a concurring opinion that turns on the prosecutor’s inferred knowledge that he was pre senting

false e vid ence do es not comport with the facts in this case. The last case cited by

the majority, Smith v. G ro ose , 205 F.3d 1045 (8th C ir. 2000) , is equal ly unconv incin g. That cas e involved two groups of robbers, the firs t of which, when preparing to burglarize a

hous e, discovered the second already in the process of stealing the homeowner’s possessions. The two groups joined forces, and at some point duri n g the crime the homeowners were murder ed. Id . atNo. 01-3613 Stumpf v. Mitchell 47

1047. The lead

er of the first group, Anthony L

ytle, provided varying accounts of

what happened, alternately claiming that the head of the sec ond gro up, Michael Cunningham, killed the co up le an d t ha t o ne of hi s ( Lyt le’s) c ohorts, James Bowman, was the murderer. Id. at 1047-48. The state convicted Jon Keith Smith, another member

of Ly tle’s group, for felony

-murder based on his assoc iation with

purporte d fellowgang member Bowma n, who was ar gued to be the actual killer. F our months later, the state then succe ssfully prosecuted

Cunningham for the same murders, ba s ed on Ly tle’s other story tha

t Cunn ingham had already killed the couple when Ly tle and his friends entered the ho us e. Id. at 1048. The Eighth Ci

rcuit ulti mate ly gra

nted Smith a writ of habeas corpus because the state’s prosecution of Cunningham violated Smith’s due process rights. Ibid. Again, the crux of the cas e wa s t he d eli ber ate pre sen tat io n of fal se e vi den ce: “In short, what the S tate cla imed to be true i

n Smith's c ase it rejected inCunningham's case, and vice ver sa.” Id. at 1050. Only a showing of this kind of prosecutori al mis conduct could support a claim, du bious as it m

ig ht be, that Stumpf’s constitutional rights were retroactively violated. Alth ough this court menti ons t he pro secut ion’s knowl edge of Eastman’s subseq

uen t statement concerning Wesley ’s alle ge d confession to being Mrs. Stout’s killer, the court’s decisiondoes not r

est on this kno wle dge . It is undisputed that the prosecution did not know of Eastman’ s stat ement at the time of Stumpf’ s convic t ion and sentencing. Nothing indicates that the prosecution cherry -picked facts in order to confirm Stumpf’s guilty plea in the evide ntiary hear

ing. The majority does not a

rgue that the pr

ose cu tion was under any obligation

to confess error in Stum pf’s post-conviction procee dings or appeals, nor even to bring Ea stman’s statement to Stumpf’s attention. There is simply no prosecutorial misconduct in this case that

could re troactiv ely implicate Stumpf’s d

ue proce ss right s. 48 Stumpf v. Mitchell No. 01-3613

2 Even assum ing, arguendo , that the majority is c orr ect that Stumpf pled guil ty bas ed on subst andard lega l advi ce, i t does not foll ow that

ac cepting the acknowledgment of guilt amounts to prosecutori a l misco nduc t, the prere qui site for find ing a vio lation o f Stump f’s consti tut ional rights. The majority argues that

the pl ea was no t volunta ry,
a conclusion I ad dress infra , but the v alidity of the plea is a n entirely dif fe rent matter. H owe ver flaw ed a d efend ant’s guilty ple a migh t be, it cannot const it ute a cont

radi ctor y pros ecut oria l t

heory of guilt, as requi red in Gro ose

. Groose does not “hold that pr osecu tors must present precise ly the same evi dence a

nd theori es in tria

ls for different defenda nts. Rather [it] hold[s] only that the u se of inher

ently factua lly contradictory

theories violates principles of due process.” Id. at 1052. The major ity r emarka bly expands thi s holding to conclu

de that evidence

in a second case that contrad icts a guilty plea in an earlier case c an implicate due process rights. Stumpf pledguilty afte r a colloquy in which he indicate d that he u

nderstoo d that he was waivin g cert ain constitutional rights. A defen dant’ s gui lty plea is an “admissionthat he comm itted the c rime cha rged a gainst him.” North Carolin a v. Alf ord
, 400 U.S. 25, 32 (1970). Nothing in the record

suggests that

the prose cutor wa s remiss inrel yi ng on Stumpf’s acknowledgment of g uilt. See Dickerson v. United States , 530 U.S. 428, 450 (2000) (Scalia, J., d issenting

) (obser ving tha t if a def

endant vo luntarily acknowledges wrong-doing, the “ Constituti on is not . . . offended by a crim inal 's commendable qualm of conscience
or fortunate fit of stupidity). 2 Therefore, I do not see any groun ds on which to base an allegation that the prosecution skewed the sa me set of facts in two different trials in order achieve two mutually incompatible guilty verdicts. This case has little or no similarit

y with the fa

cts of Thompson, Drake, and Groose

. Far more instructive is the Ninth Circ uit’s quite recent dec ision i n Shaw v. Terhune , 353 F.3d 697 (9th Cir. 2003). The court held that imposing sentence enhancements on two defenda nts for personal use of

a firearm during

an attempted robbery and assa

ult on a resta

urant ma nager was not aNo. 01-3613 Stumpf v. Mitchell 49

violation of due pr

ocess, a lthough t he te stimo ny c learly indicat edthat o nly one perpe trator had held a gun to the manager’s head. Id . at 701 -02. When the f irst defe ndant, Shaw, learne d of the c onviction and sente

nc e of his accomplice three years

later, he filed a habeas petition, citing the California Court of Appeals decision u pholding Watts’s sentence which stated: “Indeed, the evidence adduced at trial, whichpresuma

bly was ava ilable to t he prose cutor

prior to trial, tends to su

pport the conclusi on that the

jury in [Shaw’s] trial was mistaken.” People v. W atts , 76 Cal. App. 4th 1250, 1259 -61 (1999) (quoted in Shaw , 353 F.3d at 701) (bracket added in Shaw ). However, the Shaw cour t dis tinguished its case from Thompson
, poin ting to the fact that the prosecutor did not manipula te evidenc e – the sa

me cru cial disti

nction tha

t is present in our case. S

ha w , 353 F.2d at 702. Ambiguous evidence is not false evidence; “regre ttable” tactics are not
ne cessar ily unconstitutional. Id. at 703-04 . The fa ct of th e matter is that no one but Wesley and Stumpf know who shot Mrs. Stout. The State is entitled to put on the a vailable evidence to convince the finder o f fact o f guilt. As long a s it does so in a good faith manner , without manipulating or selecting out critical evidence, due proc ess is not violated. The Shaw court also speculated that if there were a constit ut ional violation, that Watts, the second defen dant, rather than Shaw, would be the one who could arg ue the point. Id. at 704, n. 5. Similarly, I could understand a court accepting We sley ’s claim that the prosecution could not honestly present evidence in his case tha t contradi cted what the government ha d r elied upon previously (a type of “prosec uto rial estoppel”), or even that it could not present evidence that contradicted a position it was taking elsewhere. Ho wever, none of those theories can retroactively re nde r unfair the fundamentally f

air proceedings that Stumpf received. Havingindicate d that I

believe it is logica

lly impossible for Stumpf’s claim

to succeed under these circumstance s, I touch 50 Stumpf v. Mitchell No. 01-3613

only lightly on the court’ s resolution of the question of “whether there is a reasonab le probability that the prosecutor’s use of inc onsistent, irreconcila ble theories rendered the conviction unreliable. ” ( Maj. Op. at 40). Nothing that occurr e d in Stumpf’s proceeding rendered the convictionunreliable. At most, the existence of Eastman’s statement could be argued to have rende red the con

v iction unreliable, but then ou

r analy sis would simply be that

of any newly d iscovered evidence, which procee ds against a more difficul tbackground and

which the court does not undertake. United States v. O’Dell , 805 F.2d 637, 640 (6th Cir. 1986) (“Motions for anew trial based on newly discover

ed evidence
are disfavored.”); see, e.g., Herrera v. Collins , 506 U.S. 390, 400 (1993) (stating the rule that habeas relief is notthe proper remedy for a cl ai m of judici al error based on newly discovered

evi dence , absent some constitutional flaw in the trial proceed ings). It would indeed be bizarre if Ea stman’s statement could not u

ndermine Stumpf’s c onviction

by i ts
ownforce, but introducing it into another proceeding could do
so. Follo wing o ur court’s decis ion, a pro secutor faced w ith the same dilemma in the future would be w ell ad vised not only to eschew reliance upon s uch po tentially contradictory evidence in l at er proceedings, but presumably prevent any other pr osecuto r from doing so. He or she might even be forced deceitf ully to disclai m a belief that a jury

was entitled to hea r su ch e vi den ce. Insum, whate ver the r esult might be
were Wesley

bringin g the cl aim, I

cannot agree t o the p rinciple of retroactive unconstitutionality pr opounded in thi s case. II Withrespect to Stumpf’ s claim at tacking his guil t y plea, the court’s

opinion ap

pears to take no notice of the benefit th at S tumpf in fa

ct gained from p leading

guilty . He firs t waived a jury trial, opting

to c ontest the charges before a three-judge panel. He then pled guilty in return for th e prosecution

dropping some cha

rges a nd specif ications. It is axiomatic that acceptance of

re sponsibility decreases the chances that the death penalty will be imposed. TheNo. 01-3613 Stumpf v. Mitchell 51

sentencingcourt

had three choices in sentencing Stumpf: life withoutparole f

or twenty ye ars; life

without pa

role for thirty ye ars; and death. It ma

de sound s trateg ic sense

for him to act ina way tha

t would encourage the judge s to choose one of the first two options. Once Stumpf pled guilty, he was entitled to an

evidentiary hearing before a three -judge pane l to confirm that the evide nce in the case supported his plea. Ohio Rev. Code A nn. § 294 5.06. Under one strategic view of the f acts, the panel might

have been less likely

than a jury to rende r a deat h verdict because it would have grasped the legal theory

behind Stumpf’s position tha

t, while guilty of Mrs. Stout’s murder, he was not actually the

shooter, and therefore did not deserve the death penalty. Stumpf was arguably

hoping for another benefit
, namely the dismissal of the rema ining specifications to the charges aga

inst him that made him eligible for the death penalty . In Ohio “[i]f the indictmen

t contain s one or m ore specific ations, a

nd a plea of guilt y or no contes t to th e charge is accept ed, the court may dismiss the specific ations and imposesentence accordingly , in the interests of

justice.” Ohio R. Crim. P. 11(C)(3). Therefore, th e majorit y is incorrect that Stumpf received no benefit at all from pleading gui lt y: he significantly

improved his chances to avoid the death penalty, althoug

h in the end his stra teg y di d not y ield the desired result. Despite the court’s extensive exegesis of the “confusion” at the plea hearing itself, the events that took place a t the sentencinghear ing apparently were neither a surprise nor a disappoin tment, in the b eginni ng, to the defenda nt or his counsel. In fa

ct, the de fense a

ttorney stated th at the prosecution’s renditiono f the plea agreement wa s accurate, (Maj. Op. at 16). No objection was made to the course of the sentencing hearing, nor wa s there any effort to withdraw the guilty plea at t

hat poin t. It was only

after the Eastman statement came to li ght that

Stumpf atte

mpted to wi

thdraw h is guilty plea. Similarly, at the “fa ctual basis hearing” before the three-judge panel the defe nse did no t a tt em pt to sa y: “Wait a minute, we aren’t

able to make an argument that we 52 Stumpf v. Mitchell No. 01-3613

thought we would b e able

to make at this stage.” It made the
ar gument. The thre e-judg e panel heard an d conside red it. They simply

were not persuaded. F in al ly, it is true that Stumpf denied that he actually shot Mrs. Stout. Nevertheless, he knew that by plea ding guilty , he would only be able to argu e that Wesl ey

infact committed the
murder as part o f the mitig ation pha se of the procee dings. The majority

asserts that there is evidence of a “serious misunderstanding,” (Maj. Op. at 23), between the judge and Stumpf’s lawyers. B ut no one was denying that Stumpf was involved in t he murd er of Mrs. Stout. His lawyers were laying the gro undwork t

o argue that Stump f was not t h e triggerman

and therefore did not deserve the de ath pen al ty. Stumpf would ce

rtainly be anxious t

o make tha

t ar gument, and it is hardly surprising that, not knowing the precise point inthe proceedings that

it would be

releva nt, he wou

ld want to double-check

that he wo

uld have a

n opportun

ity t o argue this mitigating factor . The majority simply misinterprets Stumpf’s caution as confusion. Under these ci rcumstan ces, it appe ars to me that Stumpf understood

his legal strategy, e xecuted it according to plan, and got exactly the opportunities that he ba rgained for, making the grant of a writ of habeas c orpus un wa rranted. Therefore, I

respectfully dissent.