1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0124P (6th Cir.)

File Name: 04a0124p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JOHN DAVID STUMPF,

Petitioner-Appellant,

v.

BETTY MITCHELL, Warden,

Respondent-Appellee.

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No. 01-3613

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

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

Argued: December 11, 2002

Decided and Filed: April 28, 2004 

Before: BOGGS, Chief Judge; and DAUGHTREY and

MOORE, Circuit Judges.

_________________

COUNSEL

ARGUED: Alan M. Freedman, MIDWEST CENTER FOR

JUSTICE, Chicago, Illinois, for Appellant. Carol Ann

Ellensohn, OFFICE OF THE ATTORNEY GENERAL,

Columbus, Ohio, for Appellee. ON BRIEF: Alan M.

Freedman, Carol Heis, MIDWEST CENTER FOR JUSTICE,

Chicago, Illinois, for Appellant. Stephen E. Maher, OFFICE

2 Stumpf v. Mitchell No. 01-3613

OF THE ATTORNEY GENERAL, Columbus, Ohio, for

Appellee.

DAUGHTREY, J., delivered the opinion of the court, in

which MOORE, J., joined. BOGGS, C. J. (pp. 44-52),

delivered a separate dissenting opinion.

_________________

OPINION

_________________

MARTHA CRAIG DAUGHTREY, Circuit Judge. The

petitioner, John David Stumpf, is a state prisoner incarcerated

on Ohio’s death row. He appeals the district court’s dismissal

of his habeas corpus petition, filed pursuant to 28 U.S.C.

§ 2254, in which he challenged his 1984 guilty plea and death

sentence for one count of aggravated murder, with the capital

specification that the murder was committed to escape

detection, apprehension, trial, and punishment for other

offenses, including aggravated robbery and attempted

aggravated murder. Specifically, Stumpf alleges (1) that his

guilty plea was involuntary and unknowing; (2) that his due

process rights were violated by the state’s use of inconsistent

theories to secure convictions against both Stumpf and his

accomplice, Clyde Wesley; (3) that he was deprived of

effective assistance of counsel at sentencing; and (4) that the

Ohio death penalty statute is unconstitutional 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 by a threejudge panel. Under Ohio law, when a defendant pleads guilty

to aggravated murder, the court must hold an evidentiary

hearing to establish a factual 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 guilty

of aggravated murder with the capital specification and,
No. 01-3613 Stumpf v. Mitchell 3

ultimately, that there was insufficient mitigating evidence to

spare Stumpf from imposition of the death penalty.

Under Ohio law at the time of Stumpf’s conviction, the

aggravated murder statute required that “specific intent” be

proved to convict someone of that crime. At the evidentiary

hearing to establish a factual basis for Stumpf’s plea, Stumpf

and his attorneys argued that he did not shoot the victim and,

indeed, that he was not present when the victim was shot.

The state argued in response that Stumpf was the shooter, and

the three-judge panel that heard the case adopted the state’s

theory, finding that Stumpf was the actual shooter. At a later

trial of Stumpf’s accomplice Wesley, however, the state

presented the testimony of a jailhouse informant to establish

that Wesley was the shooter. When Stumpf sought to

withdraw his guilty plea on the basis of Wesley’s conviction,

the state opposed his motion, arguing that the informant’s

testimony was unreliable. 

We conclude that the district court should have granted

relief to Stumpf on either or both of two alternative grounds:

first, that his guilty plea was unknowing and involuntary

because he was manifestly not aware that specific intent was

an element of the crime to which he pleaded guilty and,

second, that Stumpf’s due process rights were violated by the

state’s deliberate action in securing convictions of both

Stumpf and Wesley for the same crime, using inconsistent

theories. Because we are granting relief on these two

grounds, we do not reach Stumpf’s challenge to the

effectiveness of counsel’s representation at sentencing or to

the constitutionality of the Ohio death penalty 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 not affect the legal determinations necessary to the

resolution of the appeal. For that reason, and because we

4 Stumpf v. Mitchell No. 01-3613

1Wesley and Stumpf had carried Edmonds’s chrome Raven and

Wesley’s black .25 caliber pistol with them into the house. 

review the district court’s determination of the facts only for

clear error, we adopt the district court’s characterization of the

facts, as determined by the state courts, as follows:

On May 14, 1984, Stumpf, Clyde Daniel Wesley, and

Norman Leroy Edmonds, after visiting a bar in

Washington, Pennsylvania, got on Interstate 70 and

headed west toward Ohio. By sundown, they had

reached Guernsey County. They stopped their car along

I-70 and, leaving Edmonds in the car, Stumpf and

Wesley walked to a nearby house under the pretense of

needing to make a phone call. The house they chose was

owned and occupied by Norman and Mary Jane Stout.

Stout admitted Stumpf and Wesley into his home and

allowed them to use the phone. When they had

completed the call, both Stumpf and Wesley produced

pistols and announced a robbery.

1

 Stumpf held the

Stouts at gunpoint in a back bedroom while Wesley

searched the house for items to steal.

At some point, Stout moved toward Stumpf, and

Stumpf shot him between the eyes with his pistol. The

shot was not fatal, and Stout subsequently pushed

Stumpf into the next room. During this altercation, Stout

was struck on the head with a pistol and shot in the head

a second time. These actions were enough to render him

semi-conscious but not to kill him. While lying on the

floor in the other room, Stout heard four gunshots. There

is no dispute that Mary Jane Stout was shot and killed

during the course of this robbery, although there is a

dispute as to whether Stumpf or Wesley fired the fatal

shots. After Mrs. Stout was killed, Stumpf and Wesley

stole the Stout’s car and fled. Stumpf was arrested

several days later, and after initially denying any
No. 01-3613 Stumpf v. Mitchell 5

knowledge about these crimes and then being told that

Stout had survived, he confessed to being involved. 

At the time the trial court proceedings occurred,

Wesley had not yet been extradited from Texas.

However, subsequent to Stumpf’s having pleaded guilty

and having been sentenced to death, Wesley was

convicted of aggravated murder by a jury and received a

sentence of life imprisonment without the possibility of

parole for 20 years. The State introduced evidence at

Wesley’s trial that Wesley and not Stumpf fired the shots

that killed Mrs. Stout. Edmonds was not charged in the

Stout murder and robbery, but was charged for other

offenses committed during this crime spree, and he

agreed to and did testify against both Stumpf and Wesley

concerning the murder of Mary 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 bullets that struck Stout, only pieces of each

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 during

surgery, but part of it had to be left in place. Another bullet

was recovered from the mattress of the second bedroom. 

Stout’s wife was shot four times in the first bedroom. She

died from three gunshots to the left side of her head. The

fourth bullet went through her left wrist and struck her chest

without penetrating the skin of her chest. A fifth bullet was

recovered from the wall of that bedroom, above 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 Wesley had left the Stout residence. The black

.25 caliber pistol was recovered by the police after the men

sold it, along with one of Stout’s guns, to an individual in

Washington, Pennsylvania. Ronald Dye, a ballistics expert

from the Ohio Bureau of Criminal Identification and

Investigation, a division of the Ohio Attorney General’s

office, testified at Stumpf’s factual basis hearing as to the

forensic findings regarding bullets and cartridge cases

recovered from the murder scene. Dye testified that there

were eight spent cartridges found at the scene, that seven of

them had been fired by one gun, and one was fired by a

different gun. Dye also said that the black pistol, which had

been recovered by the police, fired one bullet, while the other

seven bullets were all fired by the same gun. That gun could

have been the chrome Raven, or one of several other types of

guns. 

At Stumpf’s plea proceeding, the prosecutor argued that the

ballistics evidence supported the conclusion that Stumpf had

shot Mrs. Stout, since she was apparently shot with the same

weapon used against her husband, saying, “There’s ample

evidence to conclude that this defendant fired all shots that hit

anybody, because the same gun fired all of those shots.”

However, during Wesley’s trial, the same prosecutor put

Eastman, Wesley’s cellmate, on the witness stand, to repeat

Wesley’s confession to him. According to Eastman, Wesley

told him that after Stumpf had shot Stout in the face, he

dropped the chrome Raven and ran, at which point Wesley

picked up the pistol and shot Mrs. Stout. This version of the

crime was also supported by the ballistics evidence that the

black pistol had a tendency to jam after firing just one round,

which may have led Wesley to discard it after shooting it only

once. 

C. The Guilty Plea 

Stumpf and Wesley could not be tried together because

Wesley contested his extradition from Texas, where he had

been apprehended. As a result, while Wesley was still
No. 01-3613 Stumpf v. Mitchell 7

detained in Texas, Stumpf pleaded guilty to the aggravated

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, apprehension, trial or

punishment for the offenses of the aggravated robbery of the

Stouts. He also pleaded guilty to the attempted aggravated

murder of Norman Stout and to a firearms specification for

each count. Subsequent to the entry of his plea, the

prosecutor notified the trial judge that a plea agreement had

been reached. Stumpf was questioned about the agreement at

some length, as detailed below.

D. The Evidentiary Hearing

Under Ohio law, the trial court must conduct an evidentiary

hearing in all aggravated murder cases involving guilty pleas,

to determine whether there is a factual basis for the plea.

Following Stumpf’s entry of a waiver to have a jury hear the

evidence, the hearing commenced before a three-judge panel.

During the factual basis hearing, the prosecution argued

that Stumpf had shot Mrs. Stout, while the defense argued

that Mrs. Stout was shot by Wesley, not by Stumpf. The

three-judge panel found Stumpf “guilty beyond a reasonable

doubt” of count one of the indictment (aggravated murder of

Mary Jane Sout), along with specification one (that she was

killed to escape detection for the crimes of aggravated

robbery and attempted aggravated murder) and specification

four (firearm), and guilty of count two of the indictment

(attempted aggravated murder of Norman Stout), with its

firearm specification.

E. The Mitigation Hearing

The mitigation hearing was held one day after the

conclusion of the evidentiary hearing, lasted less than two

days, and consisted of the presentation of 15 witnesses for the

defense – primarily some of Stumpf’s friends and family

8 Stumpf v. Mitchell No. 01-3613

members and a few former employers and teachers – and of

an unsworn statement by Stumpf himself. Defense counsel

presented no expert witnesses, beyond a parole officer and a

court clerk who testified as to Stumpf’s lack of a significant

criminal history. The general defense strategy was to show

that Stumpf had a generally good nature, lacked a violent

temper, had a fairly steady work history but a limited

education, had a difficult home environment, and was

respectful towards women. Stumpf’s unsworn statement

recounted his version of the crime and emphasized that

Wesley, and not Stumpf, had shot Mary Jane Stout. 

Following the hearing, the three-judge panel sentenced

Stumpf to death, finding that he had established only two

mitigating factors: his age (23) and his lack of a significant

criminal background. 

F. Appellate Procedural History

After Stumpf’s conviction, and while his direct appeal was

pending, Clyde Wesley was also convicted, by a jury, of

Mary Jane Stout’s murder. As a result, Stumpf filed a motion

for leave to withdraw his guilty plea or, in the alternative, to

have the trial court set aside his death sentence and grant him

a new sentencing hearing. 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 conviction on direct appeal.

Stumpf then filed a petition for post-conviction relief in

state court, raising challenges to the validity of his jury trial

waiver and the effectiveness of trial counsel’s representation,

particularly with regard to counsel’s advice to Stumpf that he

would not receive the death penalty if he pleaded guilty. In

the petition, Stumpf requested an evidentiary hearing and

submitted multiple affidavits in support of his claims. The

trial court dismissed the petition without an evidentiary

hearing, and this decision was affirmed by the Ohio Court of
No. 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

States Supreme Court subsequently denied certiorari. See

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

Stumpf next filed a petition for a writ of habeas corpus in

federal court, alleging as grounds for relief that the Ohio

Death Penalty statute is unconstitutional, both as written and

as applied to Stumpf; that his guilty plea was not knowing

and intelligent; that his waiver of the right to a jury trial was

invalid; that he received ineffective assistance of counsel at

the penalty phase; that he was not permitted to be present at

his motion for a new trial; that the trial court improperly

considered non-statutory aggravating circumstances and

ignored substantial mitigating evidence when deciding his

sentence; that the trial court erred in denying his motion to

vacate his sentence or withdraw his guilty plea based on

newly discovered evidence; that consideration of postsentence proceedings by less than the entire three-judge panel

violated his due process rights; and that the trial court erred

by failing to follow an Ohio statutory requirement that the

court produce a meaningful written analysis of the mitigation

evidence as a basis for imposing a death sentence.

The district court issued two opinion and orders. The first

found that several of petitioner’s claims had been

procedurally defaulted, see Stumpf v. Anderson, No. C-1-96-

668 (S.D. Ohio Nov. 9, 1999); the second denied relief on the

remaining claims, see Stumpf v. Anderson, No. C-1-96-668

(S.D. Ohio Feb. 7, 2001). However, the district court did

grant a certificate of appealability on the following five

issues: (1) whether the statutory provisions governing Ohio’s

capital punishment scheme violate the Fifth, Sixth, Eighth,

and Fourteenth Amendments to the United States

Constitution, either on their face or as applied to Stumpf;

(2) whether Stumpf’s guilty plea was knowing, intelligent and

voluntary; (3) whether Stumpf received the ineffective

assistance of counsel at the penalty phase of his trial;

(4) whether Stumpf’s due process rights were violated when

10 Stumpf v. Mitchell No. 01-3613

the trial court failed to vacate his sentence or allow him to

withdraw his plea based on newly discovered evidence; and

(5) whether Stumpf received the ineffective assistance of

appellate counsel. Before us, Stumpf has pressed the first

four claims but has abandoned the claim that appellate

counsel was ineffective. 

II. STANDARD OF REVIEW

Because Stumpf’s federal habeas petition was filed in

November 1995, the amendments to 28 U.S.C.§ 2254

contained in the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA) do not apply to this case. See Lindh v.

Murphy, 521 U.S. 320, 336)(1997) (finding that AEDPA

changes do not apply to cases pending at the time of

AEDPA’s enactment on April 24, 1996). Stumpf’s claims,

therefore, must be evaluated under § 2254(d) as it existed

prior to the enactment of AEDPA.

Accordingly, we review the district court’s disposition of

a petition for writ of habeas corpus de novo, although the

district court’s factual findings are reviewed only for clear

error. McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir.

1996). We also defer to the state court’s factual findings,

which may be rebutted only by “clear and convincing

evidence.” Id. However, this deference only applies to

“basic, primary facts” 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, 395

U.S. 238 (1969), that when a defendant enters a guilty plea,

the state bears the burden of showing that the plea was

voluntary, intelligent and knowing. Determining whether a

plea is voluntary, intelligent and knowing requires an analysis

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

F.2d 324, 326 (6th Cir. 1993). When a defendant brings a

federal habeas petition challenging his plea, the state

generally 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 plea proceeding is

inadequate to demonstrate that the plea was voluntary,

intelligent and knowing. Garcia at 326-27; Dunn v. Simmons,

877 F.2d 1275, 1277 (6th Cir. 1989), overruled on other

grounds by Parke v. Raley, 506 U.S. 20 (1992). 

The proper standard of review in this case, then, turns on

whether the record of state court proceedings surrounding

Stumpf’s guilty plea “leav[es] doubt as to whether the plea

was in fact intelligent and voluntary.” Dunn v. Simmons, 877

F.2d at 1277 (citing Roddy v. Black, 516 F.2d 1380, 1384 (6th

Cir. 1975)). If the record does leave doubt as to whether the

plea was voluntary, intelligent 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). 

Although Stumpf does not contend explicitly that his guilty

plea was invalid because he was not aware that specific intent

was an element of the crime to which he pleaded guilty, this

argument is inherent 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, his

expectation that he would be given an opportunity to present

evidence to the three-judge panel relevant to his conduct.”

Moreover, the record indicates that the explicit statutory

requirement of intent was never explained to Stumpf during

the plea colloquy. Furthermore, although his attorneys

represented to the court that they had explained to Stumpf the

elements of the crime, their own arguments to the court

during the plea colloquy and the evidentiary hearing to

establish a factual basis for the plea refute the typical

presumption that defense counsel have fully and adequately

explained all elements of a crime to a client before he pleads

12 Stumpf v. Mitchell No. 01-3613

2

Ohio Rev. Code § 2903.01 was amended on July 1, 1996. Section

(D) was removed and replaced with additional descriptions of aggravated

murder. See Ohio Rev. Code § 2903.01 (2002).

guilty. Indeed, defense counsel’s representations to the court

either betray their own ignorance of the intent element of

aggravated murder, or represent a woefully inadequate

understanding of the meaning of a guilty plea. Finally, the

plea colloquy itself, along with Stumpf’s statements to the

court through all stages of the proceedings, demonstrates

Stumpf’s unwillingness to admit to intent. 

At the time of Stumpf’s crime and subsequent conviction,

Ohio’s aggravated murder statute specified that specific intent

was a necessary element of aggravated murder. The statute

read as follows:

§ 2903.01 Aggravated murder.

(A) No person shall purposely, and with prior

calculation and design, cause the death of another.

(B) No person shall purposely cause the death of another

while fleeing immediately after committing or attempting

to commit kidnapping[sic], rape, aggravated arson or

arson, aggravated robbery or robbery, aggravated

burglary or burglary, or escape.

(C) Whoever violates this section is guilty 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 under § 2903.01(B), which, although

it specifies that the murder must be caused “purposely,” does

not specifically require intent. However, subsection (D) of

the same statute clarifies that intent is indeed a necessary

element of aggravated murder:
No. 01-3613 Stumpf v. Mitchell 13

(D) No person shall be convicted of aggravated murder

unless he is specifically found to have intended to cause

the death of another . . . .

Ohio Rev. Code § 2903.01 (1984) (amended 1996).

Furthermore, the statute limits fact-finders from inferring

specific intent solely from an accused’s participation 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 who commits or attempts to commit any offense

listed in division (B) of this section is to be conclusively

inferred, because he engaged in a common design with

others to commit the offense by force and violence or

because the offense and the manner of its commission

would be likely to produce death, to have intended to

cause the death of any person who is killed during the

commission of or attempt to commit, or flight from the

commission of or attempt to commit, the offense. If a

jury in an aggravated murder case is instructed that a

person who commits or attempts to commit any offense

listed in division (B) of this section may be inferred,

because he engaged in a common design with others to

commit the offense by force or violence or because the

offense and the manner of its commission would be

likely to produce death, to have intended to cause the

death of any person who is killed during the commission

of, attempt to commit, or flight from the commission of

or attempt to commit the offense, the jury also shall be

instructed that the inference is nonconclusive, that the

inference may be considered in determining intent, that

it is to consider all evidence introduced by the

prosecution to indicate the person’s intent and by the

person to indicate his lack of intent in determining

whether the person specifically intended to cause the

death of the person killed . . . .

14 Stumpf v. Mitchell No. 01-3613

Ohio Rev. Code § 2903.01(D) (1984)(amended 1996).

Finally, the fact-finder must also be instructed that “the

prosecution must prove the specific intent of the person to

have caused the death by proof beyond a reasonable 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 participation in a felony

murder but must be established explicitly by the prosecution.

Ohio courts have confirmed this interpretation of the

statute. In In re Washington, 691 N.E.2d 285, 287 (1998), the

Supreme Court of Ohio considered an appeal regarding

whether there was sufficient evidence to support the specific

intent requisite for an aggravated murder conviction, in a case

in which the murder was committed in the course of a

robbery. As the court explained: “Washington cannot [be

found guilty of] aggravated murder based solely on his

complicitous actions. It is also necessary for the state to

establish that Washington acted with the kind of culpability

required of the commission of aggravated murder.” In re

Washington, 691 N.E.2d at 286. In this particular case, the

court found that there was sufficient evidence for the trial

court to conclude that Washington had acted with the

requisite intent, because the trial court inferred intent only

after “hearing and considering 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 proceeding clearly

demonstrates that the defendant did not possess an

understanding of the aggravated murder charge to which he

pleaded guilty. Although the district court ultimately

concluded that the state court record was suggestive of a

knowing and voluntary plea, it did concede that 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 agreement had been

reached. He gave the following account of the agreement:
No. 01-3613 Stumpf v. Mitchell 15

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

with or the State would ask leave of Court pursuant to

Criminal Rule 7 (D) and Ohio Revised Code Section

2941.30 to amend by interlineation specification one to

the first count of the Indictment in order that it may read

as follows: The Grand Jurors further find and specify

under Ohio Revised Code Section 2929.04(A)(3) in

compliance with Ohio Revised Code Section 2941.14

that the aforesaid offense being the offense charged in

the first court, the Aggravated Murder, was [committed]

for the purpose of escaping detection, apprehension, trial

or punishment for other offenses – the words, “other

offenses” are the first change, committed by the above

named John David Stumpf, to wit: Aggravated Robbery

and then we’re adding the language “and Attempted

Aggravated Murder”. If that amendment is granted, the

defendant then would enter a plea of guilty to the first

count contained in the Indictment, being the Aggravated

Murder count and a plea of guilty to specification one to

the first count as amended; would also enter a plea of

guilty to the second count in the Indictment, being the

offense of – excuse me, back up. As to the first count he

would also enter a plea of guilty to specification four to

the first count. So, he will be pleading to the first count,

the amended specification one to the first count and

specification four to the first count. With regard to the

second count, being the Attempted Aggravated Murder,

he would enter a plea of guilty to the Attempted

Aggravated Murder and a plea of guilty to the

specification to the second count. If the pleas of guilty to

the two counts and the specifications I’ve mentioned are

accepted by the Court, the Court would then proceed

under Criminal Rule 11(c)(3) to determine if there is a

factual basis for the plea of guilty to the Aggravated

Murder charge and the existence of the aggravating

circumstances and if the pleas are accepted the State

would then ask leave to enter a nolle pros as to

specifications two and three 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 specification four of count one, and

specification one of count two. That is, both gun specifications were to

be treated as part of the same offense for sentencing purposes. 

Indictment and including the specification to the third

count.

That is my understanding of the arrangement that we are

proposing to the Court at the present time.3

Reviewing this portion of the trial court record, the district

court commented that “the prosecuting attorney’s explanation

of the plea agreement was somewhat difficult to follow, and

that criminal defendants in such situations will often answer

questions posed by the trial court without a clear

understanding of each and every term uttered – especially if

advised by counsel to do just that.” But the trial court in this

case, rather than attempting to elucidate the prosecutor’s

explanation for the defendant, immediately turned to the

defendant for verification of the prosecutor’s account of the

plea agreement. As the record reveals, even at this stage in

the plea agreement, the defendant appeared to be unable to

follow the proceedings:

JUDGE HENDERSON: Thank you, Scott. Before

ruling on the motion or amendment of the Indictment, I

would ask Counsel for the defense if they wish to

comment upon the statement of the Prosecutor. Tingle?

TINGLE: If the Court please, the statement made by the

Prosecuting Attorney is an accurate 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 Counsel

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,

affirmatively acknowledge the agreement that has been
No. 01-3613 Stumpf v. Mitchell 17

stated by the Prosecutor 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 affirmatively

acknowledge this agreement?

STEPHENS: Would you repeat the question for him

Your Honor?

JUDGE HENDERSON: Stumpf, do you affirmatively

acknowledge the agreement that has been stated by the

Prosecutor and concurred in by your attorneys?

THE DEFENDANT: Yes, sir.

Obviously, not every ambiguity in a plea proceeding,

without more, will demonstrate that a plea is not “knowing

and intelligent.” However, the exchange set out above turned

out to be merely the beginning of much confusion that was to

follow. After allowing amendment of the indictment, the

court conducted a plea colloquy, examining first the defense

attorneys, and then the defendant:

JUDGE HENDERSON: The Indictment seems to be in

order and the Court is going to make certain inquiries of

the counsel for the defendant and the defendant as to the

proposed entry of the guilty plea. It is necessary that

question be asked and answers thoughtfully given in a

case of this sort. I’m going to inquire of the attorneys for

the defendant, have you fully investigated the facts and

the law of this case and determined whether there exists

any question of the admissibility of any claimed

admissions, confessions or other evidence under Federal

and State law and advised your client concerning the

same?

TINGLE: We have, Your Honor.

18 Stumpf v. Mitchell No. 01-3613

JUDGE HENDERSON: Have you informed your client

of the elements of the offenses with which he is charged,

of all defenses which may be available to him and of all

of his Constitutional rights, both State and Federal?

TINGLE: Yes, we have.

After his attorneys indicated that they had explained the

elements of the crime to their client, Stumpf was sworn in for

the limited purpose of answering questions concerning his

guilty plea, and affirmed his attorney’s statements, as follows:

JUDGE HENDERSON: Stumpf, I’m going to ask you

a number of questions and if you do not understand those

questions you may inquire of your attorneys to better

able you to understand everything that is being asked

you. These have to do with the rights that you have as a

person who has been accused of a crime. Do you

understand that you have a constitutional privilege

against self-incrimination? 

THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: With a full understanding that

anything that you say may be used against you, are you

willing then to answer questions with regard to your

understanding of your rights?

THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: Now, you heard the questions

that I put to your attorneys, I believe, relative to their

advice to you and their counseling of you, did you not?

THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: Do you personally

acknowledge 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 you satisfied with the

services which they have performed for you?

THE DEFENDANT: Yes, sir.

Judge Henderson next questioned Stumpf as to his physical

and mental health, and whether he was presently under the

influence of drugs or alcohol. He then went over the crimes

to which Stumpf was pleading guilty. The following is a

complete account of his explanation to the defendant:

JUDGE HENDERSON: Do you understand that you are

charged with several offenses? The first offense being

that of Aggravated Murder, that there have been two

specifications being presented at this time in this

particular proceedings, to wit: Aggravated Robbery and

Attempted Murder and possession of a firearm while

committing those offenses. Do you understand that?

THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: Do you understand also that

you have been charged with the offense of Attempted

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 subject to the following

penalties: you are subject to being – to a sentence of

twenty years without probation, that is, a sentence of life

without probation for twenty years; a sentence of life

without probation for a period of thirty years and the

death penalty by electrocution could be imposed against

you. Do you 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 years incarceration before you

begin to serve any other sentence?

THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: Do you understand also that the

Attempted Aggravated Murder, which is set forth in

count two, is a felony in the first degree and that you

could be sentenced to be incarcerated for a period of four,

five, six or seven but not more than twenty-five years?

Do you understand that, sir?

THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: Do you understand also that for

a felony of the first degree that you could be fined not

more than $10,000.00?

THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: And that you could receive

both the fine and the incarceration, which I have

mentioned?

THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: Are you presently on probation

or parole, sir?

THE DEFENDANT: No, sir.

As indicated below, Stumpf has a low IQ and has been

found to be mentally and emotionally immature.

Nevertheless, the trial court never inquired into Stumpf’s

ability to understand the guilty plea proceedings or the nature

of the charges against him. The explanation set out above is

the only account of the crimes provided to Stumpf by the
No. 01-3613 Stumpf v. Mitchell 21

4

Stumpf did initial the interlineation amendment to the indictment

during the plea hearing, but there is no indication in the record that he had

actually read the indictment at any point or that it had been read to him.

Moreover, we conclude that use of the term “purposely” is not sufficient

to put the defendant on notice that specific intent, which is expressly more

than intent implied from participation in a felony, is a required element of

aggravated murder.

court. Nowhere does the court explain the elements, or even

read the charges as listed in the indictment.4

Judge Henderson then proceeded to question Stumpf about

the rights he was surrendering by pleading guilty. The

exchange went as follows:

JUDGE HENDERSON: Do you understand that if you

plead guilty you will waive, that is, you will give up the

right to a jury trial or trial by the Court; the right to be

presumed innocent and until proved guilty beyond a

reasonable doubt; the right to confront and to question

the witnesses against you and to have compulsory

process for obtaining witnesses in your favor; the right

to remain silent or to testify at your trial as you may

choose and that no inferences may be drawn if you

choose not to testify at your trial. Do you understand

that you may be giving up those rights?

 STEPHENS: Your Honor, with reference to that, we

have explained that to the defendant. He was going to

respond but we have informed him that there is, after the

plea, a hearing or trial relative to the underlying facts so

that he is of the belief that there will be presentation of

evidence and I wanted to make that clear to the Court

with reference to his right of waiver of trial to Court.

JUDGE HENDERSON: I understand that and I

appreciate your bringing that to my attention, Stephens.

Of course in the sentencing portion of this trial you do

have those rights to speak in your own behalf to present

22 Stumpf v. Mitchell No. 01-3613

evidence and testimony on your own behalf. My

statement to you and my question to you was intended to

except those rights that you do have. Counsel, is that

satisfactory?

 STEPHENS: Yes, sir.

We read this exchange to reflect a misunderstanding

between attorney Stephens and Judge Henderson. Stephens,

answering for Stumpf, asserted the defendant’s right to

present evidence during “a hearing or trial relative to the

underlying facts” of the case. He was plainly referring to the

factual basis hearing and asserting the defendant’s wish to

challenge the state’s version of the facts. Judge Henderson

indicated in response that the defendant could present

evidence during “the sentencing portion of this trial,”

apparently referring to the mitigation phase. In any case, this

was the first indication that the defendant did not wish to

concede the state’s version of the facts. The parties next

discussed a prior suppression hearing, and then the court

resumed questioning Stumpf: 

JUDGE HENDERSON: Do you understand, Stumpf,

that if any promises or inducements have been made to

you by any person to cause you to plead guilty that they

are not binding upon the Court, that if you plead guilty

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 investigation, report and

recommendation approved and prepared by the probation

department and that you may receive the maximum

sentence prescribed by law. Do you understand that, sir?

THE DEFENDANT: Yes, sir.

JUDGE HENDERSON: Have any promises or

inducements been made to you, sir, other than the
No. 01-3613 Stumpf v. Mitchell 23

agreement which you have affirmatively acknowledged

on the record?

THE DEFENDANT: No, sir.

JUDGE HENDERSON: Are you in fact guilty of count

one with specification one and specification four?

 STEPHENS: One moment, Your Honor. Your Honor,

the defendant has asked me to explain his answer. His

answer in yes. He will recite that with obviously his

understanding of his right to present evidence at a later

time relative to his conduct, but he’ll respond to that.

JUDGE HENDERSON: At no time am I implying that

the defendant will not have the right to present evidence

in mitigation hearing and I do appreciate 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 evidence in mitigation. I’m going to

ask the defendant if he is in fact guilty of the charge set

forth in Count one, including specification one and

specification four?

The Defendant: Yes, sir.

Again, the exchange between Stephens and Judge

Henderson has all the hallmarks of a serious

misunderstanding. Stumpf was unwilling to plead “guilty”

without expressly reserving his right to present evidence

“relevant to his conduct.” Read with the preceding reference

to presenting evidence, this could only refer to the subsequent

evidentiary hearing to establish a factual basis for the plea.

Stumpf, obviously, was reiterating his desire to challenge the

state’s account of his actions, and had the procedure called for

an immediate determination of the evidence relied upon by

the state to support the defendant’s imminent conviction, the

misunderstanding would undoubtedly have come to light

24 Stumpf v. Mitchell No. 01-3613

before the plea was finalized and Stumpf’s fate was sealed.

Once again, however, Judge Henderson referred to the

defendant’s “right to present evidence in mitigation hearing,”

completely missing the clear implication that despite his

admission of guilt, Stumpf was concerned about preserving

his ability to contest the state’s account of his actions.

Moreover, defense counsel’s arguments during the

subsequent evidentiaryhearing confirm the defendant’s desire

to contest the state’s version of the crime. From the opening

statement at that hearing, counsel argued that Wesley, not

Stumpf, was the one who shot Mary Jane Stout. For example,

defense counsel’s opening statement included the following:

[T]he scenario as outlined by Scott [the prosecutor] does

follow the sequence of events as they did occur, except

for the statements as to the actual shooting of Mary Jane

Stout, which the defendant believes the evidence will

show occurred at the hands of Daniel Wesley. 

The district court rejected Stumpf’s argument that his

position that he was not the shooter rendered his guilty plea

involuntary, relying on Garcia v. Johnson, 991 F.2d 324, 327

(6th Cir. 1993), as authority for the proposition that a

“temporary qualification of position by the defendant is not

sufficient to rebut the presumption of correctness of state

court proceedings, and to support a finding that [the

defendant] did not understand the nature of his plea.” Stumpf

v. Anderson, 2001 WL 242585 (S.D. Ohio 2001) (quoting

Garcia, 991 F.2d at 327). We conclude that the district

court’s reliance was misplaced, however, because Stumpf’s

qualification was more than temporary, and it was never

addressed by the trial court. 

By contrast, in Garcia, the defendant first claimed that he

had not intended to kill his victim. Garcia, 991 F.2d at 327.

After this statement, the judge conducted “a substantial

discussion” with the defendant regarding the facts of the case,

and Garcia then admitted that he had intended to kill his
No. 01-3613 Stumpf v. Mitchell 25

victim. Id. Here, the trial judge, before accepting Stumpf’s

plea, had not informed the defendant that specific intent was

an element of the crime to which he was pleading, nor had he

inquired whether Stumpf had actually shot the victim or, if

not, had specifically intended that she be killed. In the

absence of some inquiry, Stumpf’s express reservations of his

ability to put on evidence of his version of the crime, along

with his attorneys’ arguments that he did not intend, and was

not even present for, the killing of Mrs. Stout, should have put

the trial court on notice that Stumpf was not aware of the true

import of his plea.

The district court did not focus on the question of intent.

Rather, it found that Stumpf’s position that he was not the

shooter was consistent with the specification to which he

pleaded guilty. However, in making this finding, the district

courtfailed to recognize that Stumpf’s position is inconsistent

with the charge to which he also pleaded guilty. It is this

inconsistency that gives rise to his claim that his plea was not

validly entered. 

Generally, a reviewing court presumes that defense counsel

has explained the elements of the crime to a defendant

pleading guilty, even where the record does not reflect any

statement by counsel to that effect. Berry v. Mintzes, 726

F.2d 1142, 1147 (6th Cir. 1984) (“it may be appropriate to

presume that in most cases defense counsel routinely explain

the nature of the offense in sufficient detail to give the

accused notice”); but cf. Henderson v. Morgan, 426 U.S. 637,

642-48 (1976) (finding that, where the defendant’s attorneys

had argued to the court that their client had not intended to

harm the victim, there could be no presumption that counsel

had explained to their client that intent was an element of the

crime). In this case, defense 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 prevent a reviewing

court from finding that a plea was involuntary. In this case,

however, the record clearly establishes that Stumpf sought to

preserve his right to argue that he was not the shooter and

26 Stumpf v. Mitchell No. 01-3613

thus counterbalances the assurances given by defense counsel

that they had explained the elements to Stumpf.

We recognize, of course, that Stumpf need not have been

the “principal offender” – the actual shooter – in order to have

specifically intended the death of Mary Jane Stout.

Nevertheless, it is clear from the record of the factual basis

hearing that the state’s theory of guilt relied completely on

Stumpf being the principal offender. The prosecution

presented no evidence that Stumpf intended Mrs. Stout’s

death, other than arguing that he was the actual shooter. In

the closing arguments at the evidentiary hearing, defense

counsel, contending that the prosecution had not met its

burden with regard to the basis for seeking the death penalty,

effectively challenged the prosecution’s proof as to specific

intent to kill. The prosecutor responded that “[a]s to a

purpose to kill, whoever shot Mrs. Stout didn’t intend to do

her any favors when he shot her four times. It seems to me

that shooting a person four times shows what your intent

was.” 

Indeed, the three-judge panel, which presumably knew of

the intent element, found, beyond a reasonable doubt, that

Stumpf was “the principal offender” in the aggravated murder

and made no other finding as to specific intent. Their

conclusion in this regard indicates that the panel found that

Stumpf’s shooting of Mrs. Stout provided the requisite

specific intent, as there was no other evidence in the record to

satisfy this element. Given this finding, it is unlikely that

Stumpf can be said to have knowingly conceded specific

intent to kill by pleading guilty, when he continued to

maintain throughout the proceedings that he had not been the

one who actually shot the victim.

We conclude that the record of Stumpf’s plea hearing and

the subsequent evidentiary hearing, taken together,

demonstrate that the plea he entered was constitutionally

invalid. Boykin holds that, “because a guilty plea is an

admission of all the elements of a formal criminal charge, it
No. 01-3613 Stumpf v. Mitchell 27

5

Indeed, in Henderson, the defendant had heard the indictment,

which charged that he had “willfully” stabbed the victim, read in open

court. Henderson, 426 U.S. 637, 642. The Supreme Court found that this

was not sufficient to put him on notice that intent was a required element

of the crime to which he was pleading guilty. Id. at 645-46.

cannot be truly voluntary unless the defendant possesses an

understanding of the law in relation to the facts.” Boykin, 395

U.S. 238, 243 n.5 (1969). This understanding must include

“real notice of the true nature of the charge against him, the

first and most universally recognized requirement of due

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 not know intent was an

element of the crime to which he pleaded guilty, his plea

could not be voluntary).5 We have held that “a guilty plea is

not deemed voluntary where the person entering it does so

without understanding of the consequences of his plea.”

United States v. Stubbs, 279 F.3d 402, 411, 412 (6th Cir.

2002) (quotation omitted) (finding, in a split decision in a

case involving a mandatory minimum sentence, that if the

“essential elements of the crime with which the defendant was

charged were not understood by the defendant, his counsel, or

the district court, then the defendant’s guilty plea would be

constitutionally invalid”).

As discussed above, when the state court record of a

defendant’s plea does not demonstrate that the plea is

constitutionally adequate, the state bears the burden of

showing the plea was voluntary, knowing and intelligent.

Here, the state has presented no extrinsic evidence to counter

the record of the proceedings discussed above. Instead, the

respondent has explicitly relied on that record alone to argue

that the plea was voluntary, knowing, and intelligent. Given

the paucity – indeed, the lack -- of the evidence to refute what

is clear on the 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 also claims that his plea was invalid because he was not

aware that he remained eligible for the death penalty. We discount this

as a possible basis for relief, however, because the record of the plea

hearing indicates that the judge, while listing the possible sentences

Stumpf could receive for aggravated murder, did inform Stumpf at the

time of his plea that “the death penalty by electrocution could be imposed

against you.” The judge then asked whether Stumpf understood, and

Stumpf answered, “Yes, sir.” 

Furthermore, the totality of the circumstances surrounding

the plea provide additional evidence that the plea was not

voluntary, knowing, and intelligent. For example, Stumpf

argues that the fact that he remained eligible for the death

penalty and, therefore, pleaded guilty under an agreement that

provided absolutely no benefit in the form of a reduction in

possible sentence, is an additional indication that his plea was

not knowing and intelligent.6 This argument standing alone

would be not carry much weight, given the well-recognized

principle that a guilty plea cannot be rendered involuntary

merely because, in hindsight, it turned out not to be the best

decision. See McMann v. Richardson, 397 U.S. 759, 769-71

(1970). However, Stumpf’s decision to plead guilty – by

agreement – to a crime with a capital specification, especially

in the absence of any identifiable reason to take such a course

of action, creates an additional inference that his plea was

invalid. In combination with his position that he was not the

shooter, which reveals his ignorance of specific intent as an

element of the crime, the record indicates that Stumpf’s plea

was involuntary “because he ha[d] such an incomplete

understanding of the charge that his plea cannot stand as an

intelligent admission of guilt.” Ivy v. Caspari, 173 F.3d 1136,

1141-42 (8th Cir. 1999)(guilty plea involuntary where

defendant was not informed that intent was a necessary

element of the underlying felony). 

The question of counsel’s effectiveness in representing

Stumpf is not before us as an independent ground for relief.

It is, however, raised in the context of challenge to the

validity of his guilty plea. The record shows clearly that
No. 01-3613 Stumpf v. Mitchell 29

Stumpf has always denied being the shooter. It is also clear

that defense counsel’s strategy, throughout both the

evidentiary hearing and the mitigation hearing, was to argue

that after Stumpf shot Norman Stout he panicked and fled,

that Stumpf was not even present in the home when Mary

Jane Stout was shot, and that Wesley was, in fact, the one

who shot Mrs. Stout. One possible, if unlikely, explanation

for counsel’s strategy is that they themselves were unaware

that specific intent was an element of the crime. But, failure

to research the most basic details of the statute under which

their client was charged would be outside the “range of

competence” to which the defendant is entitled. See

Henderson v. Morgan, 426 U.S. 637, 647 (1976). Perhaps

more disturbing is the possibility that counsel, realizing that

intent was an element of the offense, nonetheless chose to

allow their client to plead guilty and then – and only then – to

contest the existence of that element. But this, too, would

manifestly 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 (1969). It is true that Ohio requires a factual

basis hearing in cases of aggravated murder, but it would

nonetheless be reckless and plainly incompetent for an

attorney to rely on a factual basis hearing to refute an element

of a crime to which his client has already pleaded guilty.

Finally, whether Stumpf’s lawyers were aware of the intent

element or not, their behavior compels the conclusion that

Stumpf himself was not aware of the intent element.

Stumpf’s observation of his attorneys’ attempt to contest the

state’s version of events, and his own position throughout the

plea colloquy that he intended to challenge the state’s factsa position evidently sanctioned by his attorneys, reaffirms the

conclusion that Stumpf was not aware that by pleading guilty

to aggravated murder he was admitting to specific intent to

kill Mary Jane Stout.

There are other indications in the record, as well, pointing

to the existence of at least a reasonable probability that

Stumpf would not have pleaded guilty had he known that

30 Stumpf v. Mitchell No. 01-3613

such a plea would have amounted to admitting that he

specifically intended the death of Mary Jane Stout. A

mitigation investigator later reported, in an affidavit, that

“John did not want to plead guilty.” Moreover, affidavits

from Stumpf’s family affirm the impression that his attorneys

were less than candid 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 not receive

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 reasonable

probability that, had the petitioner been fully informed of the

elements of the offense to which he was pleading and

consequences of that plea, he would not have pleaded guilty

to her aggravated murder. 

B. The Due Process Violation

At the time of Stumpf’s post-plea evidentiary hearing and

his mitigation – or sentencing – hearing, his accomplice,

Wesley, was still in Texas, fighting extradition. During both

Stumpf’s plea hearing, held pursuant to Ohio Rev. Code

§ 2945.06, and his sentencing hearing, the prosecutor argued,

and the three-judge panel ultimately found, that Stumpf was

the principal offender, responsible for actually shooting Mary

Jane Stout. After Stumpf’s sentencing in the fall of 1984, the

state tried Clyde Wesley before a jury in the spring of 1985.

Wesley was also charged with aggravated murder with capital

specifications, and during his trial, the state argued that

Wesley, not Stumpf, was the shooter. To support this

argument, the state presented testimony from Eastman,

Wesley’s cellmate, about statements Wesley had made to

Eastman concerning details about the murder. Wesley took

the stand and denied that he was the shooter, but the jury

convicted him of the aggravated murder of Mrs. Stout. At the

sentencing phase of Wesley’s trial, the same jury then

recommended a sentence of 20 years to life, rather than the

death penalty.
No. 01-3613 Stumpf v. Mitchell 31

Stumpf argues that the prosecutor’s use of two conflicting

theories concerning the identity of the shooter to convict both

him and Wesley constitutes a due process violation.

The Constitution’s Due Process clause guarantees every

defendant the right to a fair trial. Lassiter v. Department of

Soc. Servs., 452 U.S. 18, 24-5 (1981); Turner v. Louisiana,

379 U.S. 466, 471-72 (1965). The Supreme Court has 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 refrain from improper methods

calculated to produce a wrongful conviction as it is to use

every legitimate method to bring about one.” Berger v.

United States, 295 U.S. 78, 88 (1935), overruled on other

grounds, Stirone v. United States, 361 U.S. 212 (1960). 

Drawing on the principle that the Constitution’s “overriding

concern [is] with the justice of the finding 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 inconsistent,

irreconcilable theories to secure convictions againstmore than

one defendant in prosecutions for the same crime violates the

due process clause. See, e.g., Smith v. Groose, 205 F.3d 1045

(8th Cir. 2000); Thompson v. Calderon, 120 F.3d 1045 (9th

Cir. 1997) (en banc); Drake v. Kemp, 762 F.2d 1449 (11th

Cir. 1985) (en banc) (Clark, J., specially concurring); cf.

Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995) (involving a

situation where both defendants had shot at the victim and it

was unclear whose bullet had actually hit and killed the

victim; the court found that the two theories advanced by the

prosecution were not inconsistent because both defendants

could have been convicted under the law of parties). On this

issue of first impression in this court, we now join our sister

circuits in finding that the use of inconsistent, 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. Groose, the Eighth Circuit considered a case in

which a prosecutor had used two different, conflicting

statements by a co-defendant at successive trials to convict

the petitioner at the first trial and a second individual at a

second trial. Smith v. Groose, 205 F.3d 1045, 1049 (8th Cir.

2000). That case involved a group of four young men who

were looking for homes to burglarize one evening. In the

course of their search, they saw another group of burglars

breaking into a home. They realized they knew these men

and decided to help them break into the house. The residents

were murdered in the course of the burglary. The primary

issue at trial was whether the murders took place before or

after the four young men began participating in the offense.

One of the four men first told the police that the other group

had committed the murders without the participation of the

group of four. Two days later, he told police that he had seen

one of the four men from his group stabbing the victims with

a pocketknife; he later recanted this story. The prosecutor

then used both statements to obtain convictions against men

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

Examining the record before it, the Eighth Circuit held that

“[t]he use of inherently factually contradictory theories

violates the principles of due process.” Id. at 1052. The court

found that in order to amount to a due process violation, an

inconsistency in the prosecutor’s theories “must exist at the

core of the prosecutor’s case against defendants for the same

crime.” Id. This constitutes a due process violation because

it renders convictions unreliable, given that “[the s]tate’s

duty to its citizens does not allow it to pursue as many

convictions as possible without regard to fairness and the

search for truth.” Id. at 1051. 

In finding a due process violation under these

circumstances, the Eighth Circuit in Smith v. Groose was

careful to distinguish the facts in its case from those in the

Fifth Circuit’s opinion in Nichols v. Scott, 69 F.3d 1255 (5th

Cir. 1995), where the court did not reach the due process

question in a case in which the prosecutor argued in two
No. 01-3613 Stumpf v. Mitchell 33

7

The majority opinion rested on an ineffective assistance of counsel

claim. See Thompson v. Calderon, 120 F.3d 1045, 1051-56 (9th Cir.

1997)(en banc). However, despite the fact that a majority of judges did

not join in the portion of the opinion finding a due process violation,

several of the concurring and dissenting judges indicated that they would

find a due process violation for the use of wholly inconsistent theories to

convict separate defendants. See, e.g., Thompson, 120 F.3d at 1063-64

(Tashima, J., concurring, joined by Thomas, J.)(agreeing with the premise

that “due process is violated when a prosecutor pursues wholly

inconsistent theories of a case at separate trials” but arguing that, in order

to find prejudice, the court must decide which of the two theories is

true)(quotation omitted); Thompson, 120 F.3d at 1066-73 (Kozinski, J.,

dissenting, joined by Nelson, J.)(“In the case of mutually inconsistent

verdict, which I am not sure is the case here, I believe that the state is

required to take the necessary steps to set aside or modify at least one of

the verdicts.” Id. at 1071.)

separate cases that different defendants had each shot the one

bullet that killed the victim. Id. at 1268. The distinction in

the Nichols case was that both perpetrators had fired shots at

the victim, and both could have been convicted under a felony

murder theory. Therefore, the prosecutor’s arguments were

notfactually inconsistent, because both defendants couldhave

been convicted even if the prosecutor had used the identical

argument in both cases. Groose, 205 F.3d at 1051.

Finally, the Ninth Circuit considered a similar situation in

Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en

banc), vacated on other grounds, 523 U.S. 538 (1998). In

that case, the prosecutor argued at one trial that, based on

jailhouse informant testimony, one defendant had committed

a rape and murder. At a second trial, the prosecutor used

different jailhouse informants to argue that the second

defendant had the motive and disposition to commit the

crimes. A plurality of the en banc Ninth Circuit,7 specifically

excluding situations where new evidence comes to light,

found that a prosecutor cannot use inconsistent theories of the

same crime in order to secure multiple convictions. Id. at

1058. The court echoed Judge Clark’s concurrence in an

34 Stumpf v. Mitchell No. 01-3613

Eleventh Circuit case which, although it granted habeas relief

on alternate grounds, also involved inconsistent theories:

The prosecutor’s theories of the same crime in the two

different trials negate one another. They are totally

inconsistent. This flip flopping of theories of the offense

was inherently unfair. Under the peculiar facts of this

case the actions by the prosecutor violate the

fundamental fairness essential to the very concept of

justice. . . The state cannot divide and conquer in this

manner. Such actions reduce criminal trials to mere

gamesmanship and rob them of their supposed search for

the truth. 

Thompson, 120 F.3d at 1059 (quoting Drake v. Kemp, 762

F.2d 1449, 1479 (11th Cir. 1985) (en banc) (Clark, J.,

concurring)). 

In this case, the state clearly used inconsistent,

irreconcilable theories at Stumpf’s hearings andWesley’strial

 At each proceeding, the prosecutor argued that the defendant

had been the one to pull the trigger, resulting in the fatal shots

to Mary Jane Stout. At Wesley’s trial, the prosecutor relied

on Eastman’s testimony and on the gun-switching scenario

argued by Stumpf, to secure Wesley’s conviction. The

prosecutor asserted:

Believing he had killed Mr. Stout, [Stumpf] pitched the

gun aside and left the immediate area back the hallway

down the steps to the basement. At that point [Wesley,]

whose own gun was jammed, picked that chrome colored

Raven up and as Mrs. Stout sat helplessly on her bed,

shot her four times in order to leave no witnesses to the

crime.

These statements are irreconcilably inconsistent with those

made by the very same prosecutor at Stumpf’s plea hearing,

when he told the trial court:
No. 01-3613 Stumpf v. Mitchell 35

Believing that the had killed Mr. Stout, Stumpf [then]

turned the same chrome colored Raven automatic pistol

upon Mary Jane Stout as she sat on the bed and shot her

four times. Three times in the left side of the head and

neck and one time in the writs; obviously in order not to

leave anyone available to identify him.

The state claims that, because Eastman’s testimony was not

available at the time of Stumpf’s guilty plea, Stumpf is really

asserting Wesley’s due process claim in the guise of his own.

The state also argues that “it was of no import to the charge

of capital murder against Stumpf which of the two

[defendants] 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 state asserts that inconsistent,

irreconcilable theories were not used in these two cases,

because the prosecution did not rely on Eastman’s testimony

at Wesley’s trial. None of these arguments is persuasive.

First, Stumpf clearly has a due process claim even though

Eastman’s testimony was not available at the time of his trial.

It is true that this is not a case where the prosecutor

selectively presented evidence in Stumpf’s case to support the

theory of the murder he was arguing in that case. However,

the due process challenge to the use of inconsistent theories

is based on the notion of fundamental fairness. Because

inconsistent theories render convictions unreliable, they

constitute a violation of the due process rights of any

defendant in whose trial they are used. In Groose, the

petitioner was in fact the defendant at the first trial, and the

second, inconsistent theory did not come to light until four

years after his conviction, at the second trial. Groose, 205

F.3d at 1048. Nevertheless, the Eighth Circuit found that his

due process rights had been violated. Logically, “both

[defendants’ 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 argue that there is no violation of Stumpf’s

36 Stumpf v. Mitchell No. 01-3613

8

In fact, Wesley’s counsel wanted to inform the jury that the

prosecutor had previously argued that Stumpf, and not Wesley, was the

shooter. The prosecutor argued that Stumpf had never admitted to firing

the shots, and that his own argument was irrelevant. The trial court did

not allow Wesley’s counsel to discuss Stumpf’s proceedings in front of

the jury. 

rights because the prosecutor had no knowledge of Eastman’s

testimony at the time of Stumpf’s plea. The state learned of

Eastman’s testimony soon after Stumpf’s plea and sentencing

and yet continued to maintain that the convictions of both

Stumpf and Wesley, each of which was obtained by arguing

that a different individual was the shooter, were sound and

reliable.8 Indeed, as discussed below, the state maintained

that Eastman’s testimony was unreliable during 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 second argument, with which the district court

agreed, is that the identity of the shooter was not the critical

issue in either trial and that therefore the use of different

theories did not violate Stumpf’s due process rights. By

pleading guilty to capital murder, the state’s argument goes,

Stumpf admitted concerted action with Wesley in causing the

death of Mary Jane Stout for the purposes of avoiding

detection. All that was left for the prosecution then to prove,

under this theory, was that Mrs. Stout was killed so that the

defendant could escape detection for other crimes. But this

argument ignores the fact that, as the aggravated murder

statute existed in 1984, specific intent was a necessary

element of the crime. Ohio Rev. Code § 2903.01(B); see also

supra, pp.15-16. Because Stumpf never confessed to specific

intent to kill Mrs. Stout, the prosecution bore the burden of

proving beyond a reasonable doubt that Stumpf was guilty of

the charge.

Finally, the state argues that irreconcilable theories were

not used because Eastman’s testimony was completely
No. 01-3613 Stumpf v. Mitchell 37

unreliable. State’s counsel even asserted at oral argument that

the state did not rely on Eastman’s testimony in order to

prosecute Wesley. This argument is just short of astounding,

given the fact that in seeking to convict Wesley of aggravated

murder, the prosecution offered no proof of the element of

specific intent other than the theory that Wesley was the

actual shooter. That the state relied on Eastman’s testimony

is evident from the fact that it presented his testimony to the

jury, and from the fact that it prevented Wesley’s counsel

from presenting evidence of Stumpf’s guilty plea. Had the

state presented a theory of the crime consistent with the

theory it asserted at Stumpf’s evidentiary hearing, it would

have had no need to keep that information from Wesley’s

jury.

The district court ultimately accepted the state’s argument

that the core issue at Stumpf’s evidentiary hearing was not the

identity of the shooter. However, in reaching this conclusion,

the court started with what we believe to be a faulty

assumption, i.e., that “the state was not required to prove that

petitioner was the actual shooter.” The district court, in

concluding that the specification to which Stumpf pleaded

guilty, Ohio Rev. Code § 2929.04(A)(3), did not require that

Stumpf be proven to be the “principal offender,” overlooked,

once again, the fact that the aggravated murder statute itself

requires specific intent. See discussion supra pp. 15-16. The

state was not required to prove that the petitioner was the

actual shooter, but it was required to prove specific intent.

Even proceeding from the district court’s false assumption,

however, we cannot agree with the court’s ultimate

conclusion. The district court found that, although the state

was not required to prove that Stumpf was the actual shooter,

“the fact remains that the state did argue that petitioner was

[the] actual shooter and the trial court did find that petitioner

was the actual shooter.” The district court went on to

recognize that the trial court cited this very finding as “a

reason, and a very substantial reason” that petitioner received

the death penalty. The district court found, however, that

38 Stumpf v. Mitchell No. 01-3613

9

Indeed, only two fact-finders actually observed Eastman’s

testimony. The jury at Wesley’s trial obviously credited Eastman enough

to find Wesley guilty. The trial judge, in pre-trial proceedings, made at

least one credibility determination when he found that Eastman was not

a government agent within the meaning of Miranda v. Arizona, 384 U.S.

436 (1966). See State v. Wesley, 1986 Ohio App. LEXIS 8651 (1986).

habeas relief was not warranted, because the Supreme Court

of Ohio’s independent reweighing of the aggravating and

mitigating circumstances cured any misplaced reliance on

Stumpf having been the actual shooter. Apparently engaging

in such a reweighing process, the Ohio Supreme Court

concluded that Eastman’s testimony was not sufficient to tip

the balance of aggravating and mitigating factors.

We cannot agree with this reasoning, because we do not

believe that a reweighing of the factors used to support

imposition of the death penalty cures the due process

violation at issue. The Ohio Supreme Court, it is true, found

that “the testimony of a cellmate during Clyde Wesley’s trial

is of minimal credibility, especially in light of appellant’s

guilty plea and the substantial evidence to the contrary

adduced during appellant’s sentencing hearing.” State v.

Stumpf, 32 Ohio St. 3d at 106. But, putting aside for the

moment the question of whether Eastman’s testimony need be

credible for a due process violation to be established by the

state prosecution’s presentation of and evident reliance on it,

there is no explicit state court determination regarding

Eastman’s credibility to which this court must give deference.

Although there is a presumption that a state court’s factual

findings are correct, this presumption applies only to basic

facts and to those facts implicitly established through the trial

court’s unique ability to judge the witnesses’ credibility and

demeanor. See McQueen v. Scroggy, 99 F.3d 1302, 1310

(6th Cir. 1996). No court at any level considering Stumpf’s

claims actually observed Eastman’s testimony.

9

 The first

court explicitly to examine the transcripts of that testimony,

the two-judge trial panel, failed to make any factual findings,

instead denying Stumpf’s motion summarily. The Supreme
No. 01-3613 Stumpf v. Mitchell 39

10Eastman testified at Wesley’s trial that Wesley told him that after

Stumpf had shot Mr. Stout, Stumpf panicked and dropped the .25 caliber

Raven. Wesley then picked up the Raven and shot Mrs. Stout a few

times. When Mrs. Stout moaned, Wesley shot her again to make sure she

was dead. 

11One could argue that this story is more likely to be plausible

because it is so similar to Stumpf’s account of the crime, which he

recounted many months before Eastman testified.

Court of Ohio recognized as much when it found that the trial

court had “apparently” determined that Eastman’s testimony

did not change the balancing of mitigating and aggravating

factors. The Supreme Court of Ohio also presumably

examined the transcripts, concluding that the testimony was

of “minimal credibility.” Neither the presumed factual

finding by the trial court, nor the more explicit one made by

the Supreme Court of Ohio is due the type of complete

deference contemplated by the state, because neither of these

courts had any better opportunity to judge Eastman’s

credibility than we do. 

Finally, the state presses an argument that Eastman’s

testimony was not credible because it relied on “the same type

of implausible gun switching and gun juggling that Stumpf

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 story is plausible,11 but whether the

prosecution relied on that story to secure Wesley’s conviction.

The prosecution found Eastman’s testimony credible enough

to present the “implausible gun switching” theory to Wesley’s

jury and obtain his conviction on that theory.

In holding that a constitutional violation occurred 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

results from 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 cannot, in order to

convict two defendants at separate trials, offer inconsistent

theories and facts regarding the same crime”). We have no

quarrel with this proposition, to the extent that it is meant to

acknowledge a state’s need to continue to investigate crimes

and to present all available evidence in court. However, in

this case, although Eastman’s testimony did not come to light

until after Stumpf had been convicted and sentenced to death,

the state had many opportunities to correct its use of

conflicting theories. Stumpf, upon learning of the state’s

reliance on the theory that Wesley was actually the shooter,

timely filed a motion to vacate his guilty plea and/or his

sentence. The two judges hearing this motion expressed some

concern over whether there was evidence that Stumpf was not

in fact the shooter, but the state did not take that opportunity

to advocate that all the available evidence be presented to the

sentencing panel.

A due process claim is a mixed question of law and fact and

is therefore subject to de novo review. Williams v. Coyle,

260 F.3d 684, 706-07 (6th Cir. 2000). Here, the proper

standard of review is whether there is a reasonable probability

that the prosecutor’s use of inconsistent, irreconcilable

theories rendered the conviction unreliable. See, e.g., id., 260

F.3d at 706-07; Brady v. Maryland, 373 U.S. 83 (1963);

Strickland v. Washington, 466 U.S. 668, 694(1984). A

“reasonable probability” is a probability sufficient 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 state’s due process

violation mandates that both Stumpf’s plea and his sentence

be set aside. First, there is a reasonable probability that, had

the prosecution not pursued conflicting theories concerning

who was the actual shooter, Stumpf either would not have

pleaded guilty or the three-judge panel would not have found

a factual basis for the specific intent element of aggravated

murder. Second, and perhaps more likely, there is a
No. 01-3613 Stumpf v. Mitchell 41

reasonable probability that, had the prosecution not pursued

inconsistent theories, Stumpf would not have been sentenced

to death.

As discussed at length above, it was necessary for the threejudge panel to find that Stumpf specifically intended the death

of Mary Jane Stout in order for it to accept his plea to

aggravated murder. Ohio Rev. Code § 2903.01(D) (“[n]o

person shall be convicted of aggravated murder unless he is

specifically found to have intended to cause the death of

another”). The prosecution offered virtually no evidence

regarding intent other than its contention that Stumpf shot

Mrs. Stout. Had the prosecution’s alternate theory been heard

by the three-judge panel, there is a reasonable probability that

it would have found Stumpf guilty of something less than

aggravated murder.

Moreover, there is more than a reasonable probability that

the three-judge panel would not have sentenced Stumpf to

death had the prosecution 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 deserved the

death penalty), the court’s first pronouncement was that it had

“f[oun]d beyond a reasonable doubt that the Defendant was

the principal offender in count one of the indictment,” i.e., the

aggravated murder charge. In turn, this finding prevented the

panel from concluding that Stumpf was not the principal

offender, which would have been “a powerful mitigating

factor.” State v. Green, 90 Ohio St. 3d 352, 363

(2000)(noting that “[v]ery few death sentences have been

approved against persons who were not the principal

offender”). In fact, during the hearing on Stumpf’s motion

to withdraw his guilty plea, one of the original panel

members, Judge Bettis, stated:

[I]f we had not been satisfied that Stumpf was, in 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 death penalty should follow. I’m not

saying it would, but it’s possible.

It is true that Judge Bettis made this comment during a

hearing in which the panel had before it both a transcript of

Eastman’s testimony and evidence of the prosecution’s

reliance on that theory of the crime. However, the fact that

the panel did not grant Stumpf’s motion to withdraw his

guilty plea does not dictate the conclusion that they did not

find Eastman’s testimony persuasive. First, in denying the

motion summarily, the panel stated, “The Court took the

matter under advisement and after having considered the

same, does overrule the Motion to Withdraw Former Plea and

the Alternative Motion to Set Aside the Sentence Imposed.”

Because the court gave no basis for its ruling, the denial of

relief could have been made on any number of grounds; it

would be impossible to divine its reasoning. Hence, the

panel’s rejection of Stumpf’s motion does not negate the

conclusion that, had the prosecution’s alternate theory been

before the panel at a sentencing proceeding, there is a

reasonable probability that the panel would not have

sentenced him to death. Second, only two of the three judges

on the original panel were still alive when Stumpf brought his

motion. Stumpf’s contention that his motion should have

been heard by three judges was rejected by the Ohio Supreme

Court:

R.C. 2945.06 expressly provides that “[t]he judges or a

majority of them may decide all questions of fact and law

arising upon the trial. . . .” Unanimity is mandated only

when the panel finds a defendant guilty or not guilty.

Whether appellant was entitled to withdraw his guilty

plea or to a new sentencing hearing were questions of

law, properly determined by a majority of the panel. 

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

Under Ohio Rev. Code § 2945.06, then, only one judge’s

opinion was required to deny Stumpf’s motion. However,
No. 01-3613 Stumpf v. Mitchell 43

under the same provision, unanimity was required as to

questions of guilt and penalty. Because the third judge on

Stumpf’s panel died before the prosecution’s alternate theory

and Eastman’s testimony came to light, 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

death penalty.

Finally, as petitioner points out, Ohio courts have held that

reweighing of aggravating and mitigating circumstances by a

higher court is not a cure for errors in the sentencing process,

where the result of the weighing process, had the correct

factors been present, is unknown. State v. Davis, 28 Ohio St.

3d 361, 372 (1988) (“We cannot accept independent review

as a cure in this particular action because we cannot know if

the result of the weighing process by the three-judge panel

would have been different had the impermissible aggravating

circumstance not been present.”).

IV. CONCLUSION

On the basis of the two claims addressed in this opinion,

that Stumpf’s guilty plea was not voluntary, knowing and

intelligent and that his due process rights were violated by the

prosecution’s use of inconsistent, irreconcilable theories to

convict both him and his accomplice, we REVERSE the

district court’s decision and REMAND this case to the district

court with instructions to issue the writ of habeas corpus in

the petitioner’s favor, unless the state elects to retry him

within 90 days of the date of entry of the conditional writ.

Because we are granting Stumpf relief on both his involuntary

plea and due process claims, we need not reach his remaining

arguments. 

44 Stumpf v. Mitchell No. 01-3613

______________

DISSENT

______________

BOGGS, Chief Judge, dissenting. The court has reversed

the district court’s denial of a writ of habeas corpus on two

grounds: that Stumpf’s guilty plea was involuntary and

unknowing, and that his due process rights in his own trial

and sentencing were violated by the state’s later use of

evidence against another person. I disagree with both of these

conclusions, and therefore respectfully dissent from the

granting of the writ of habeas corpus. 

I

I begin with the second of the court’s two grounds, as I

believe that is the more profoundly mistaken. The majority

cites three cases from other circuits to buttress its theory that

Ohio’s prosecution of Wesley, which took place in April

1985, some seven months after Stumpf pleaded guilty and

was sentenced to death, somehow violates Stumpf’s due

process rights. None of the three are germane to this case.

In Thompson v. Calderon, a celebrated California death

penalty case, the court vacated a death sentence because the

prosecutor presented two mutually incompatible theories for

the rape-murder during contemporaneous trials of two

defendants, 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

proceedings for both men, and in Leitch’s trial, the

prosecutor’s theory was that Leitch killed the victim, his

girlfriend, because he wanted to get back together with his exwife; Thompson assisted him in the crime. Id. at 1055. In

Thompson’s trial, however, the prosecutor argued that

Thompson had raped the victim and then killed her to cover

up his act. He presented different jail house informants at

each trial to bolster each contradictory theory. Id. at 1056.
No. 01-3613 Stumpf v. Mitchell 45

The Ninth Circuit held that this shift in arguments violated a

prosecutor’s duty to discover the truth and that he was

improperly trying to secure convictions for their own sake.

Thompson, 120 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 is “not that it

shall win a case, but that justice shall be done”). It also found

that Thompson, who was tried first, was prejudiced due that

the fact that “[o]nly in Thompson's trial did the prosecutor

change the theory and the arguments [from those presented in

the pre-trial hearing], and offer facts that directly conflicted

with the underlying premise of the charges he brought.”

Thompson, 120 F.3d at 1059.

Distinguishing Thompson from the case before us is not

difficult, however. First of all, the prosecutor in Thompson

pursued the two mutually incompatible theories of the murder

at contemporaneous trials after joint pre-trial proceedings,and

deliberately chose witnesses who would tell the conflicting

story that he needed to convict each defendant. Knowingly

putting on false evidence is prosecutorial misconduct that

violates the Due Process Clause. Napue v. Illinois, 360 U.S.

264, 269 (1959). Nothing in this case indicates that the

prosecutors deliberately presented false evidence: Stumpf

pleaded guilty to aggravated murder with the specification of

killing a witness and attempted aggravated murder with a

firearm. The State had every reason to believe his over-all

admission of responsibility. It was under no obligation,

however, to accept at face value his assertion that he did not

actually pull the trigger, especially in light of contradictory

forensic evidence, such as the fact that a .25-caliber weapon

killed Mrs. Stout, the same caliber as Stumpf’s gun.

Nor did the prosecutor in Thompson collect new evidence

between trials; he simply manipulated the facts that he had.

In contrast, Wesley’s trial took place seven months after

Stumpf pleaded guilty, during which time informant Eastman

told prosecutors that Wesley confessed that he murdered

Mrs. Stout. However, Wesley denied having confessed to

46 Stumpf v. Mitchell No. 01-3613

1

It is worth noting that constitutional claim made in Thompson

ultimately did not prevent the defendant’s execution on July 14, 1998.

Calderon v. Thompson, 523 U.S. 538, 566 (1998) (reinstating the mandate

denying habeas relief). 

Eastman, and the forensic evidence suggested that Eastman’s

statement was not airtight. A cursory comparison of the facts

to those in Thompson therefore reveals that the California

case has little application to our case.1

In Drake v. Kemp, an Eleventh Circuit case, the majority

remanded for a new trial because the burden of proof was

improperly shifted to the defendant and the prosecutor

violated the defendant’s rights during his closing arguments

in the sentencing phase. Drake v. Kemp, 762 F.2d 1449 (11th

Cir. 1985) (en banc). A single concurring judge argued that

Drake’s Fourteenth Amendment rights had been violated.

The prosecutor, in trials that were a year apart, argued in one

instance that a co-defendant must have committed the murder

alone and, after having secured a conviction, argued that same

person was not strong enough to commit the crime, and

therefore Drake must have helped. The concurring judge

concluded that it “seems inescapable that the prosecutor

obtained Henry Drake's conviction through the use of

testimony he did not believe; bringing this case under the

logical if not actual factual framework of . . . Napue.” Drake,

762 F.2d at 1479 (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 presenting false evidence does not comport with the

facts in this case.

The last case cited by the majority, Smith v. Groose, 205

F.3d 1045 (8th Cir. 2000), is equally unconvincing. That case

involved two groups of robbers, the first of which, when

preparing to burglarize a house, discovered the second

already in the process of stealing the homeowner’s

possessions. The two groups joined forces, and at some point

during the crime the homeowners were murdered. Id. at
No. 01-3613 Stumpf v. Mitchell 47

1047. The leader of the first group, Anthony Lytle, provided

varying accounts of what happened, alternately claiming that

the head of the second group, Michael Cunningham, killed

the couple and that one of his (Lytle’s) cohorts, James

Bowman, was the murderer. Id. at 1047-48. The state

convicted Jon Keith Smith, another member of Lytle’s group,

for felony-murder based on his association with purported

fellow gang member Bowman, who was argued to be the

actual killer. Four months later, the state then successfully

prosecuted Cunningham for the same murders, based on

Lytle’s other story that Cunningham had already killed the

couple when Lytle and his friends entered the house. Id. at

1048. 

The Eighth Circuit ultimately granted 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 case was the deliberate presentation of false evidence: “In

short, what the State claimed to be true in Smith's case it

rejected in Cunningham's case, and vice versa.” Id. at 1050.

Only a showing of this kind of prosecutorial misconduct

could support a claim, dubious as it might be, that Stumpf’s

constitutional rights were retroactively violated.

Although this court mentions the prosecution’s knowledge

of Eastman’s subsequent statement concerning Wesley’s

alleged confession to being Mrs. Stout’s killer, the court’s

decision does not rest on this knowledge. It is undisputed that

the prosecution did not know of Eastman’s statement at the

time of Stumpf’s conviction and sentencing. Nothing

indicates that the prosecution cherry-picked facts in order to

confirm Stumpf’s guilty plea in the evidentiary hearing. The

majority does not argue that the prosecution was under any

obligation to confess error in Stumpf’s post-conviction

proceedings or appeals, nor even to bring Eastman’s

statement to Stumpf’s attention. There is simply no

prosecutorial misconduct in this case that could retroactively

implicate Stumpf’s due process rights.

48 Stumpf v. Mitchell No. 01-3613

2

Even assuming, arguendo, that the majority is correct that Stumpf

pled guilty based on substandard legal advice, it does not follow that

accepting the acknowledgment of guilt amounts to prosecutorial

misconduct, the prerequisite for finding a violation of Stumpf’s

constitutional rights. The majority argues that the plea was not voluntary,

a conclusion I address infra, but the validity of the plea is an entirely

different matter. However flawed a defendant’s guilty plea might be, it

cannot constitute a contradictory prosecutorial theory of guilt, as required

in Groose.

Groose does not “hold that prosecutors must present

precisely the same evidence and theories in trials for different

defendants. Rather [it] hold[s] only that the use of inherently

factually contradictory theories violates principles of due

process.” Id. at 1052. The majority remarkably expands this

holding to conclude that evidence in a second case that

contradicts a guilty plea in an earlier case can implicate due

process rights. Stumpf pled guilty after a colloquy in which

he indicated that he understood that he was waiving certain

constitutional rights. A defendant’s guilty plea is an

“admission that he committed the crime charged against

him.” North Carolina v. Alford, 400 U.S. 25, 32 (1970).

Nothing in the record suggests that the prosecutor was remiss

in relying on Stumpf’s acknowledgment of guilt. See

Dickerson v. United States, 530 U.S. 428, 450 (2000) (Scalia,

J., dissenting) (observing that if a defendant voluntarily

acknowledges wrong-doing, the “Constitution is not . . .

offended by a criminal's commendable qualm of conscience

or fortunate fit of stupidity).2 Therefore, I do not see any

grounds on which to base an allegation that the prosecution

skewed the same set of facts in two different trials in order

achieve two mutually incompatible guilty verdicts. This case

has little or no similarity with the facts of Thompson, Drake,

and Groose. 

Far more instructive is the Ninth Circuit’s quite recent

decision in Shaw v. Terhune, 353 F.3d 697 (9th Cir. 2003).

The court held that imposing sentence enhancements on two

defendants for personal use of a firearm during an attempted

robbery and assault on a restaurant manager was not a
No. 01-3613 Stumpf v. Mitchell 49

violation of due process, although the testimony clearly

indicated that only one perpetrator had held a gun to the

manager’s head. Id. at 701-02. When the first defendant,

Shaw, learned of the conviction and sentence of his

accomplice three years later, he filed a habeas petition, citing

the California Court of Appeals decision upholding Watts’s

sentence which stated: “Indeed, the evidence adduced at trial,

which presumably was available to the prosecutor prior to

trial, tends to support the conclusion that the jury in [Shaw’s]

trial was mistaken.” People v. Watts, 76 Cal. App. 4th 1250,

1259-61 (1999) (quoted in Shaw, 353 F.3d at 701) (bracket

added in Shaw).

However, the Shaw court distinguished its case from

Thompson, pointing to the fact that the prosecutor did not

manipulate evidence – the same crucial distinction that is

present in our case. Shaw, 353 F.2d at 702. Ambiguous

evidence is not false evidence; “regrettable” tactics are not

necessarily unconstitutional. Id. at 703-04. The fact of the

matter is that no one but Wesley and Stumpf know who shot

Mrs. Stout. The State is entitled to put on the available

evidence to convince the finder of fact of guilt. As long as it

does so in a good faith manner, without manipulating or

selecting out critical evidence, due process is not violated.

The Shaw court also speculated that if there were a

constitutional violation, that Watts, the second defendant,

rather than Shaw, would be the one who could argue the

point. Id. at 704, n. 5. Similarly, I could understand a court

accepting Wesley’s claim that the prosecution could not

honestly present evidence in his case that contradicted what

the government had relied upon previously (a type of

“prosecutorial estoppel”), or even that it could not present

evidence that contradicted a position it was taking elsewhere.

However, none of those theories can retroactively render

unfair the fundamentally fair proceedings that Stumpf

received.

Having indicated that I believe it is logically impossible for

Stumpf’s claim to succeed under these circumstances, I touch

50 Stumpf v. Mitchell No. 01-3613

only lightly on the court’s resolution of the question of

“whether there is a reasonable probability that the

prosecutor’s use of inconsistent, irreconcilable theories

rendered the conviction unreliable.” (Maj. Op. at 40).

Nothing that occurred in Stumpf’s proceeding rendered the

conviction unreliable. At most, the existence of Eastman’s

statement could be argued to have rendered the conviction

unreliable, but then our analysis would simply be that of any

newly discovered evidence, which proceeds against a more

difficult background 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 discovered evidence

are disfavored.”); see, e.g., Herrera v. Collins, 506 U.S. 390,

400 (1993) (stating the rule that habeas relief is not the proper

remedy for a claim of judicial error based on newly

discovered evidence, absent some constitutional flaw in the

trial proceedings). It would indeed be bizarre if Eastman’s

statement could not undermine Stumpf’s conviction by its

own force, but introducing it into another proceeding could do

so. Following our court’s decision, a prosecutor faced with

the same dilemma in the future would be well advised not

only to eschew reliance upon such potentially contradictory

evidence in later proceedings, but presumably prevent any

other prosecutor from doing so. He or she might even be

forced deceitfully to disclaim a belief that a jury was entitled

to hear such evidence. In sum, whatever the result might be

were Wesley bringing the claim, I cannot agree to the

principle of retroactive unconstitutionality propounded in this

case.

II

With respect to Stumpf’s claim attacking his guilty plea,

the court’s opinion appears to take no notice of the benefit

that Stumpf in fact gained from pleading guilty. He first

waived a jury trial, opting to contest the charges before a

three-judge panel. He then pled guilty in return for the

prosecution dropping some charges and specifications. It is

axiomatic that acceptance of responsibility decreases the

chances that the death penalty will be imposed. The
No. 01-3613 Stumpf v. Mitchell 51

sentencing court had three choices in sentencing Stumpf: life

without parole for twenty years; life without parole for thirty

years; and death. It made sound strategic sense for him to act

in a way that would encourage the judges to choose one of

the first two options. 

Once Stumpf pled guilty, he was entitled to an evidentiary

hearing before a three-judge panel to confirm that the

evidence in the case supported his plea. Ohio Rev. Code

Ann. § 2945.06. Under one strategic view of the facts, the

panel might have been less likely than a jury to render a death

verdict because it would have grasped the legal theory behind

Stumpf’s position that, 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 remaining specifications

to the charges against him that made him eligible for the

death penalty. In Ohio “[i]f the indictment contains one or

more specifications, and a plea of guilty or no contest to the

charge is accepted, the court may dismiss the specifications

and impose sentence accordingly, in the interests of justice.”

Ohio R. Crim. P. 11(C)(3). Therefore, the majority is

incorrect that Stumpf received no benefit at all from pleading

guilty: he significantly improved his chances to avoid the

death penalty, although in the end his strategy did not yield

the desired result. 

Despite the court’s extensive exegesis of the “confusion” at

the plea hearing itself, the events that took place at the

sentencing hearing apparently were neither a surprise nor a

disappointment, in the beginning, to the defendant or his

counsel. In fact, the defense attorney stated that the

prosecution’s rendition of the plea agreement was accurate,

(Maj. Op. at 16). No objection was made to the course of the

sentencing hearing, nor was there any effort to withdraw the

guilty plea at that point. It was only after the Eastman

statement came to light that Stumpf attempted to withdraw his

guilty plea. Similarly, at the “factual basis hearing” before

the three-judge panel the defense did not attempt to say:

“Wait a minute, we aren’t able to make an argument that we

52 Stumpf v. Mitchell No. 01-3613

thought we would be able to make at this stage.” It made the

argument. The three-judge panel heard and considered it.

They simply were not persuaded. 

Finally, it is true that Stumpf denied that he actually shot

Mrs. Stout. Nevertheless, he knew that by pleading guilty, he

would only be able to argue that Wesley in fact committed the

murder as part of the mitigation phase of the proceedings.

The majority asserts that there is evidence of a “serious

misunderstanding,” (Maj. Op. at 23), between the judge and

Stumpf’s lawyers. But no one was denying that Stumpf was

involved in the murder of Mrs. Stout. His lawyers were

laying the groundwork to argue that Stumpf was not the

triggerman and therefore did not deserve the death penalty.

Stumpf would certainly be anxious to make that argument,

and it is hardly surprising that, not knowing the precise point

in the proceedings that it would be relevant, he would want to

double-check that he would have an opportunity to argue this

mitigating factor. The majority simply misinterprets

Stumpf’s caution as confusion. 

Under these circumstances, it appears to me that Stumpf

understood his legal strategy, executed it according to plan,

and got exactly the opportunities that he bargained for,

making the grant of a writ of habeas corpus unwarranted.

Therefore, I respectfully dissent.