RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0406p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

SHAWN L. HAWKINS,

 Petitioner-Appellee/Cross-Appellant,

v.

RALPH COYLE, Warden,

 Respondent-Appellant/Cross-Appellee.

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Nos. 05-4032/4049

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 97-00296—Susan J. Dlott, District Judge.

Argued: April 30, 2008

Decided and Filed: November 18, 2008 

Before: BATCHELDER, GIBBONS, and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio,

for Appellant. Anthony G. Covatta, Jr., DREW & WARD CO., LPA, Cincinnati, Ohio, for

Appellee. ON BRIEF: Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellant. Anthony G. Covatta, Jr., Robert M. Smith, DREW & WARD CO.,

LPA, Cincinnati, Ohio, for Appellee. 

_________________

OPINION _________________

ALICE M. BATCHELDER, Circuit Judge. Respondent Ralph Coyle, a warden, appeals the

district court’s order granting Shawn L. Hawkins a writ of habeas corpus on the grounds that, at

sentencing, his trial counsel was ineffective in failing to conduct any investigation for mitigation

purposes. Hawkins, in turn, appeals the district court’s denial of habeas relief on all other grounds

asserted in his Amended Habeas Petition. For reasons explained below, we REVERSE the district

court’s grant of relief on the basis of ineffective assistance of counsel and we AFFIRM the district

court’s denial of relief on all other grounds.

1
Nos. 05-4032/4049 Hawkins v. Coyle Page 2

I. BACKGROUND

The district court accurately summarized the uncontested facts and procedural history:

On June 11, 1989, Diamond Marteen and Jerome Thomas were interested in buying

a pound of marijuana. Terrance Richard knew Shawn Hawkins to be a potential

seller. Richard, Marteen, and Thomas drove to Hawkins’ residence on Newbrook

Drive in Mt. Healthy, Ohio that evening in a silver-gray Hyundai sedan owned by

Richard’s mother. Hawkins negotiated the terms of a drug deal with the men.

Hawkins provided the men with a pager number so that they could contact him later

for the delivery of the drugs. The three men showed Hawkins the approximately

$1,400 in cash that they intended to use to purchase the marijuana. Thomas testified

that Hawkins never entered the Hyundai sedan during the drug deal negotiations.

Thereafter, Richard and Marteen drove Thomas to work at approximately 10:30 p.m.

Richard and Marteen then proceeded to the home of Melissa Edwards. They used

her telephone to page someone and received a return phone call. Richard and

Marteen left Edwards’ home after receiving the telephone call.

Some time in the late hours of June 11, 1989, or the early morning hours of June 12,

1989, Richard and Marteen were killed. The bodies of Richard and Marteen were

discovered mid-morning on June 12, 1989, in the Hyundai sedan owned by Richard’s

mother on Elizabeth Street, a residential street in Mt. Healthy. Marteen’s body was

found in the front passenger seat in a reclined position; Richard’s body was found

in the rear seat. Each man had been shot twice at close range in the left side of the

head. All four shots were fired from a .25 caliber weapon. The weapon was never

recovered.

Crime scene investigators determined that the crime had occurred in another location

and that the vehicle had been moved shortly after the killings. Investigators found

no money in the vehicle except for loose change. Jewelry that Marteen had been

wearing the night before was missing from his body. His pants pockets were turned

partially inside out. A morgue attendant later found a napkin on which a pager

number was written in one of Richard’s pockets. The pager number was discovered

to be one used by Hawkins.

The police contacted Hawkins as a potential witness to the murders. He admitted to

having discussed a drug deal with the victims on the evening of June 11, 1989.

However, Hawkins testified at trial that the deal was not consummated because he

was unable to get in touch with his suppliers. Hawkins told the police that he never

saw the victims after 9:00 p.m. on June 11th. The police stated that Hawkins denied

having entered the Hyundai sedan.

Forensic experts identified two fingerprints matching Hawkins’ prints inside the

Hyundai. One of the prints, a thumbprint, was set in human blood on a

blood-spattered notebook recovered from the floor of the rear of the automobile. The

thumbprint could have been made only by a bloody thumb touching the notebook or

by a thumb touching a bloodstain on the notebook. The blood on the notebook was

Type A which matched the blood type of both victims. The second fingerprint was

found on the right rear door of the Hyundai.

Henry Brown, Jr., a seventeen year-old juvenile, eventually came forward to identify

Hawkins as the killer. Brown told the authorities that on June 12, 1989 at 12:30 a.m.

he saw Hawkins kill Richard in the rear seat of a Hyundai sedan on a cul-de-sac on
Nos. 05-4032/4049 Hawkins v. Coyle Page 3

Newbrook Drive. Brown stated that Marteen already was dead in the front seat.

Brown stated further that Hawkins rummaged through the vehicle and drove it from

the murder scene. He described the murder weapon as a .25 caliber handgun. He

stated that Hawkins was wearing a black muscle shirt at the time of the murders.

Other witnesses described hearing four gun shots on June 12, 1989, between

approximately 12:30 a.m. and 1:00 a.m., originating in the cul-de-sac area of

Newbrook Drive. Several minutes after the shots, Kenneth Boehmler saw a

silver-gray sedan driving in a suspicious manner on Hudepohl Lane, one block south

of the Newbrook Drive cul-de-sac. When the driver of the sedan exited the vehicle

for a few moments, Boehlmer identified him as wearing a dark muscle shirt and

described his height, weight, and build in a manner consistent with Hawkins’ height,

weight, and build. Boehmler also saw someone reclining in the front passenger seat

as if asleep.

In September 1989, Hawkins was indicted for the aggravated murders of Richard and

Marteen. For each of the two murders, Hawkins was indicted on two counts: one

charging that the offense was committed with prior calculation and design and one

charging felony murder premised upon aggravated robbery. Each of the four counts

of aggravated murder carried two death penalty specifications. Hawkins also was

indicted on two counts of aggravated robbery with a firearm.

Hawkins was tried in December 1989 before a jury in the Hamilton County, Ohio

Common Pleas Court. He testified on his own behalf and denied the murders and

robberies. He also presented the testimony of other witnesses. Nonetheless, the jury

convicted Hawkins of all charges and all specifications. The jury recommended a

death sentence for each aggravated murder count. The trial court sentenced Hawkins

to death.

Hawkins appealed the verdict to the Ohio First District Court of Appeals and the

Ohio Supreme Court, both of which affirmed his conviction and sentence of death.

The Ohio Supreme Court also sua sponte merged the two separate convictions for

each murder so that a single death sentence remained for each homicide. The Ohio

Supreme Court denied Hawkins’ motion for rehearing and the United States Supreme

Court denied certiorari. Hawkins’ petition for post-conviction relief also was denied

by the state courts. Finally, Hawkins’ Application to Reopen under Ohio R. App. P.

26(B) and additional motions for reconsideration and petitions for writs of certiorari

were denied by the Ohio courts and the Supreme Court.

Hawkins v. Coyle, 2005 U.S. Dist. LEXIS 35538, at *2-6 (S.D. Oh. July 19, 2005).

In 1997, Hawkins petitioned for a writ of habeas corpus in the Southern District of Ohio,

advancing twenty-seven claims for relief. After discovery and an evidentiary hearing, the district

court denied twenty-six of Hawkins’s claims, and granted relief on one, Hawkins’s second claim:

ineffective assistance of trial counsel. The court found Hawkins’s counsel constitutionally

ineffective because in preparation for the sentencing phase, he failed to conduct any investigation

for mitigation purposes, choosing instead to rely on a theory of residual doubt. The State of Ohio

now appeals that determination. The district court granted Hawkins a Certificate of Appealability

(COA) on five of his other theories of recovery. Hence, the following grounds for habeas relief

(which we have numbered as they appear in the habeas petition) are before us in this appeal:
Nos. 05-4032/4049 Hawkins v. Coyle Page 4

2. Hawkins was denied his rights as guaranteed by the Fifth, Sixth, Eighth and

Fourteenth Amendments by his trial Counsel’s utter lack of investigation and

preparation for the mitigation phase of his capital trial.

3. The cumulative effect of the State’s misconduct regarding Keith Miree

violated Petitioner Hawkins’ rights under the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution and prejudiced

him.

4. The State’s misconduct regarding the bloody fingerprint violated Petitioner

Hawkins’ rights under the Fifth, Sixth, Eighth and Fourteenth Amendments

to the United States Constitution.

7. The prosecutor’s failure to provide Hawkins’ counsel with material and

exculpatory evidence violated his rights as guaranteed by the Fifth, Sixth,

Eighth and Fourteenth Amendments to the United States Constitution.

11. The trial court’s denial of Hawkins’ Motion for Mistrial based on

prosecutorial misconduct violated Hawkins’ rights under the Fifth, Sixth,

Eighth and Fourteenth Amendments.

27. The trial court violated Mr. Hawkins’ right to confront, present a defense,

due process and equal protection as guaranteed by the Sixth, Eighth and

Fourteenth Amendments when the court failed to disclose and seal Henry

Brown’s juvenile records.

II. STANDARD OF REVIEW

When reviewing a district court’s decision to grant a writ of habeas corpus, we review de

novo the court’s legal conclusions and its factual findings for clear error. Slaughter v. Parker, 450

F.3d 224, 232 (6th Cir. 2006) (citing Smith v. Hofbauer, 312 F.3d 809, 813 (6th Cir. 2002)). We

also review de novo the district court’s findings on mixed questions of law and fact. United States

v. Carter, 355 F.3d 920, 924 (6th Cir. 2004).

Because Hawkins filed his habeas petition in 1997, the provisions of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”) apply. Barker v. Yukins, 199 F.3d 867, 871 (6th

Cir. 1999) (AEDPA applies to petitions filed after April 24, 1996). Title 28 U.S.C. § 2254 restricts

the ability of federal courts to grant habeas relief:

(d) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court proceedings unless the

adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented at the State court proceedings.

“A state court decision is ‘contrary to’ clearly established Federal law if the state court arrives at a

conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court

confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and
Nos. 05-4032/4049 Hawkins v. Coyle Page 5

arrives at a different result.” Slaughter, 450 F.3d at 232 (quoting Ruimveld v. Birkett, 404 F.3d

1006, 1010 (6th Cir. 2005) (internal quotations omitted)). Furthermore, the statute “requires federal

habeas courts to deny relief that is contingent upon a rule of law not clearly established at the time

the state conviction became final.” Williams v. Taylor, 529 U.S. 362, 380 (2000).

We may grant habeas relief under the “unreasonable application” clause if the state court

identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably

applies that principle to the facts. Slaughter, 450 F.3d at 232 (citing Williams, 529 U.S. at 407-08).

“A federal habeas court may not issue a writ under the unreasonable application clause simply

because that court concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly.” Bell v. Cone, 535 U.S. 685, 694

(2002).

As the text of § 2254(d) makes clear, this AEDPA standard applies only to claims that were

“adjudicated on the merits in State court proceedings.” “When a prisoner who filed his habeas

petition after AEDPA’s effective date properly raised a claim in state court, yet that court did not

review the claim’s merits, AEDPA deference does not apply, and the federal habeas court reviews

legal issues de novo.” Vasquez v. Jones, 496 F.3d 564, 569 (6th Cir. 2007) (citing Williams v.

Coyle, 260 F.3d 684, 706 (6th Cir. 2001)).

Where the state court disposes of a Federal constitutional claim with little-to-no articulated

analysis of the constitutional issue, this circuit applies a modified form of AEDPA deference. See,

e.g., Vasquez, 496 F.3d at 569-70, 574-75 (applying modified AEDPA deference where the state

court held that any Confrontation Clause violation was harmless error); Howard v. Bouchard, 405

F.3d 459, 467 (6th Cir. 2005) (applying modified AEDPA deference where the state court of

appeals, in response to a due process challenge and with no analysis, held that there was “no error”

in the admission of identification testimony, and even if there were, it was “harmless beyond a

reasonable doubt”); Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000) (applying modified AEDPA

deference where the state courts disposed of the constitutional issues without analysis, by summary

order and denial of leave to appeal). This modified-AEDPA standard requires that we “conduct[]

a ‘careful’ and ‘independent’ review of the record and applicable law, but [we] cannot reverse

‘unless the state court's decision is contrary to or an unreasonable application of federal law.’”

Vasquez, 496 F.3d at 570 (quoting Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir. 2005); citing

Howard, 405 F.3d at 467)). In other words, in such cases, we must “focus on the result of the state

court’s decision, applying” AEDPA deference to the result reached not the reasoning used. Harris, 212 F.3d at 943 n.1 (emphasis in original).

III. INEFFECTIVE ASSISTANCE

The State of Ohio appeals the district court’s determination that Hawkins’s trial counsel

rendered ineffective assistance at the sentencing phase by failing to conduct any investigation into

mitigating evidence. Because Hawkins is unable to establish that he was prejudiced as a result of

this lack of investigation, we reverse the district court’s judgment.

A. Standard of Review

Hawkins first raised this claim on direct review to the Supreme Court of Ohio. The court

denied relief on this, as well as another, ineffective assistance claim, on both procedural and

substantive grounds:

[Hawkins] failed to raise these arguments before the court of appeals and, thus,

appellant’s claims of ineffective assistance of counsel have been waived. However,

even if appellant’s arguments are considered on the merits, appellant has failed to

satisfy his burden of establishing ineffective assistance under the standards set forth
Nos. 05-4032/4049 Hawkins v. Coyle Page 6

in [Strickland v. Washington, 466 U.S. 668 (1984)]. Accordingly, we reject

appellant’s [ineffective assistance claims].

State v. Hawkins, 612 N.E.2d 1227, 1234 (Ohio 1993). Because the court addressed — albeit

summarily — the merits of the issue, and because the State does not argue that the claim was

procedurally defaulted, we will treat the state court judgment as an “adjudication on the merits” such

that AEDPA’s § 2254(d) applies. See Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002) (en banc)

(per curiam) (defining “adjudication on the merits” to be a substantive, rather than a procedural,

decision); Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999) (an “adjudication on the merits” is

a substantive, rather than a procedural, resolution of a federal claim). In light of the cursory nature

of the state court’s reasoning on the issue, however, we will apply our modified AEDPA deference.

Vasquez, 496 F.3d at 569 (applying modified standard where state court disposed of claim “with

little analysis on the substantive constitutional issue”); Howard, 405 F.3d at 468 (applying modified

standard where “state court has not articulated its reasoning for rejecting a constitutional claim”).

Thus, we will conduct an independent review of the record and applicable law, but will grant relief

only if the result of the decision by the Ohio courts to deny Hawkins relief on this ground was

necessarily contrary to or amounted to an unreasonable application of clearly established Federal

law.

In reaching this conclusion, we are mindful that the Supreme Court recently granted a writ

of certiorari to determine whether AEDPA deference should apply where a state court resolved an

issue without the benefit of evidence that was later received for the first time in a federal evidentiary

hearing. Bell v. Kelly, 128 S. Ct. 2108 (2008). The issue in Bell v. Kelly is pertinent to Hawkins’s

case because evidence regarding the choice of Hawkins’s counsel to forgo any investigation was

never developed in the state courts and was produced for the first time in a federal evidentiary

hearing. Nevertheless, the result we reach in this case does not depend on the way in which the

Supreme Court may resolve Bell v. Kelly, because we would reach the same result in this case even

on de novo review.

B. Analysis

Hawkins claims that his constitutional rights were violated by trial counsel’s failure to

investigate and prepare adequately for the mitigation phase of his trial. To establish constitutionally

ineffective assistance of counsel, Hawkins must show (1) that his counsel rendered deficient

performance, and (2) that this deficient performance prejudiced the defense so as to render the trial

unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687 (1984).

To establish deficient performance and satisfy the first prong of Strickland, a petitioner must

demonstrate that counsel’s representation “fell below an objective standard of reasonableness.” The

Supreme Court has articulated the following principles for examining attempts by counsel to justify

their limited investigation as reflecting a tactical judgment not to present mitigating evidence at

sentencing:

Strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation. In other words,

counsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary. In any ineffectiveness

case, a particular decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to

counsel's judgments.
Nos. 05-4032/4049 Hawkins v. Coyle Page 7

1

It is of no consequence that Wiggins was decided after Hawkins’s conviction, as Wiggins made clear that it

merely applied Strickland and did not make any new law. Slaughter, 450 F.3d at 233 n.2 (citing Hamblin v. Mitchell, 354 F.3d 482, 487 (6th Cir. 2003)).

Wiggins v. Smith, 539 U.S. 510, 521-22 (2003) (quoting Strickland, 466 U.S. at 690-91).1 This

circuit has recognized that a complete failure to make an independent investigation of mitigating

evidence will not often be reasonable. See Carter v. Bell, 218 F.3d 581, 595-96 (6th Cir. 2000).

However, a careful reading of Wiggins reveals that counsel’s performance will not necessarily be

deficient because of a failure to investigate, so long as counsel’s decision not to investigate is

reasonable under the circumstance. Wiggins, 539 U.S. at 521-22 (“counsel has a duty to make

reasonable investigations or to make a reasonable decision that makes particular investigations

unnecessary” (emphasis added)).

In this case, Strickland’s first prong turns on whether Hawkins’s trial counsel made a

reasonable decision that made mitigation investigations unnecessary. At the evidentiary hearing,

Hawkins’s trial counsel testified to the following:

In my judgment, this was not a mitigation case. If the jury comes back and finds him

guilty of two executions, there’s not much we can tell them that’s going to change

their mind with regard to the ultimate verdict. So this was not a case we thought

about mitigation.

Instead, counsel opted for a strategy of residual doubt, whereby he continued to highlight the

weaknesses in the State’s case. Notably, at that time, residual doubt was a strategy endorsed by both

the Ohio and United States Supreme Courts. Scott v. Mitchell, 209 F.3d 854, 881 (6th Cir. Ohio

2000) (citing Lockhart v. McCree, 476 U.S. 162, 181 (1986) (recognizing the strategy as “an

extremely effective argument for defendants in capital cases” (citation omitted)); State v. Johnson, 494 N.E.2d 1061, 1065 (Ohio 1986) (“omission of [mitigating] evidence in an appropriate case

could be . . . the result of a tactical, informed decision by counsel, completely consonant with his

duties to represent the accused effectively”)). Here, Hawkins’s counsel may not have been

reasonable in concluding that this was “not a mitigation case” without any knowledge of what type

of mitigating evidence might exist. But because Hawkins’s claim ultimately fails the second prong

of Strickland, we need not decide whether Hawkins’s counsel’s performance was deficient under

the first prong of Strickland.

The second prong of Strickland requires Hawkins to show that his trial counsel’s deficient

performance prejudiced him by rendering the trial unfair and its result unreliable. Strickland, 466

U.S. at 687. To do this, Hawkins “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Slaughter, 450 F.3d at 234 (quoting Strickland, 466 U.S. at 686).

There is no dearth of cases from this circuit and the Supreme Court in which counsel’s

failure to investigate mitigating evidence has been found to have prejudiced a capital defendant.

See, e.g., Wiggins, 539 U.S. at 535 (investigation would have shown a troubled history that included

severe privation and abuse in the first six years of his life while in the custody of his alcoholic,

absentee mother, physical torment, sexual molestation, repeated rape during subsequent years in

foster care, a period of homelessness, and diminished mental capacities); Haliym v. Mitchell, 492

F.3d 680, 718 (6th Cir. 2007) (investigation would have shown a home life that was “saturated with

violence,” frequently directed at petitioner by his father; during teen years a loss of father, mother,

and brother within months of each other, and shortly thereafter, drug addiction; severe depression

that led to a self-inflicted gunshot wound to the head, causing brain damage and impairment that was

expected to demonstrate “greater than normal difficulties with impulsivity, judgment, and problem
Nos. 05-4032/4049 Hawkins v. Coyle Page 8

solving”); Williams v. Anderson, 460 F.3d 789, 804-05 (6th Cir. 2006) (investigation would have

shown that petitioner’s alcoholic mother frequently hit him; that his father left when he was young;

that his uncle and role model was a career criminal; that he was dependent on cocaine at time of

crime, and the drug induced paranoid fears; and that he suffered from dyssocial reaction, mixed

personality disorder with anti-social and narcissistic features); Dickerson v. Bagley, 453 F.3d 690,

698-99 (6th Cir. 2006) (investigation would have shown petitioner was borderline retarded; raised

in a home where he was surrounded by “pimps, prostitutes and drug dealers”); Harries v. Bell, 417

F.3d 631, 639-40 (6th Cir. 2005) (investigation would have shown evidence of traumatic childhood;

physical abuse; brain damage; mental illness; and exposure to extreme violence, including beatings

of his mother, the rape of his sister, and the murder of both his father and stepfather); Coleman v.

Mitchell, 268 F.3d 417, 450-52 (6th Cir. 2001) (investigation would have shown that petitioner was

abandoned by his mother and raised by his grandmother, who abused him physically and

psychologically, neglected him while running her home as a brothel and gambling house, involved

him in her voodoo practice, and exposed him to group sex, bestiality, and pedophilia); Skaggs v.

Parker, 235 F.3d 261, 269-75 (6th Cir. 2000) (post-conviction evidence indicated that petitioner was

mentally retarded, suffered from organic brain damage, and exhibited psychotic, paranoid, and

schizophrenic features); Carter v. Bell, 218 F.3d 581, 593-600 (6th Cir. 2000) (investigation would

have shown petitioner’s poor, violent, and unstable childhood; adult head injuries; psychotic

problems; and positive relationships with his step-children, family, and friends).

Nevertheless, such a finding of prejudice is not made lightly, especially where the petitioner

was not a victim of abuse and did not suffer from any mental disorders or difficulties. See, e.g.,

Durr v. Mitchell, 487 F.3d 423, 436 (6th Cir. 2007) (holding that the additional mitigating evidence

of stable home and personal life was cumulative and not sufficient to establish prejudice); Foley v.

Parker, 488 F.3d 377, 383 (6th Cir. 2007) (in finding no prejudice, noting that petitioner did not

“come forward with evidence of a difficult childhood or mental problems”); Carter v. Mitchell, 443

F.3d 517, 531 (6th Cir. 2006) (there was no prejudice where affidavits of family members “describe

a relatively stable, although imperfect, family environment”; notably, although petitioner had an

alcoholic father who may have physically abused petitioner’s mother, there were “no allegations of

physical or sexual abuse of [petitioner]”).

In his attempt to establish prejudice in this case, Hawkins points to affidavits submitted by

nine of his family members during state post-conviction proceedings. These affidavits disclosed that

Hawkins’s family members would have been willing and able to testify to the following mitigationrelated items:

- Hawkins’ biological father had a history of alcohol use. (Belle Green aff;

Renee Rodgers aff.; Doris Hull aff; Kevin Hawkins aff.; Stephanie Hawkins

Harris aff.; Judy Hogan aff.)

- There was discord in the Hawkins’ parents’ marriage, his father engaged in

extramarital affairs, and his parents eventually divorced. (Belle Green aff.;

Renee Rodgers aff.; Kevin Hawkins aff.; Stephanie Hawkins Harris aff.; Judy

Hogan aff.; James Hawkins aff.)

- Hawkins’ father physically assaulted his mother on one occasion breaking

her nose. (Kevin Hawkins aff.; James Hawkins aff.)

- Hawkins was impacted by favoritism shown to his brother at school and at

home. (Charles Hogan aff.)
Nos. 05-4032/4049 Hawkins v. Coyle Page 9

- Hawkins’ sister died at the age of three and Hawkins appeared depressed

afterwards. (Merinda Mae Walker aff.; Doris Hull aff.; Kevin Hawkins aff.;

Stephanie Hawkins Harris aff.; Judy Hogan aff.; James Hawkins’ aff.)

- Hawkins appeared to be depressed and tried at least twice to commit suicide

at a young age. (Belle Green aff.; Kevin Hawkins aff.; James Hawkins aff.)

- Hawkins refused to take a plea bargain in this case stating that he would not

plead to a crime he did not commit. (Charles Hogan aff.)

Hawkins, 2005 U.S. Dist. LEXIS 35538, at *158-59. The district court held that this was sufficient

to establish prejudice, stating only that there “is a reasonable probability that at least one juror would

have found Hawkins to be less morally culpable in some way based on the fact that he had a troubled

upbringing marked by depression and two attempts at suicide.” Id. at *165-66. We conclude that

the district court erred.

These affidavits describe a markedly less traumatic and abusive childhood and adolescence

than the circumstances of capital defendants in whose cases we have found the failure to investigate

was prejudicial. While the alleged suicide attempts make this a somewhat closer case, the affidavits

do not demonstrate that Hawkins was the victim of any physical or sexual abuse, and the only

instance of violence they describe is an incident in which his mother’s nose was broken as a result

of her being pushed by his father. See Carter, 443 F.3d at 531 (no prejudice where affidavits of

family members “describe a relatively stable, although imperfect, family environment”; although

petitioner had an alcoholic father who may have physically abused his mother, there were “no

allegations of physical or sexual abuse of [petitioner]”). Furthermore, and once again in stark

contrast to those cases finding prejudice, this record does not indicate that Hawkins suffers from any

serious mental or psychological problems. At most, the claimed suicide attempts point to some kind

of mental instability, such as depression, but this is far different from the type of mental and

psychological impairments suffered by defendants in the cases where we have found prejudice. See,

e.g., Skaggs, 235 F.3d at 269-75 (post-conviction evidence indicated that petitioner was mildly

mentally retarded, suffered from organic brain damage, and exhibited psychotic, paranoid, and

schizophrenic features). We conclude that these affidavits are insufficient to establish prejudice

under Strickland, and the result reached by the Ohio courts — the denial of Hawkins’s claim of

ineffective assistance of counsel — was neither contrary to nor an unreasonable application of

clearly established Federal law. Indeed, we would find that result correct even under a de novo

review. Accordingly, we reverse the district court’s granting of habeas relief on this ground.

IV. PROSECUTORIAL MISCONDUCT

In the Third and Eleventh claims of his habeas petition, Hawkins contends that the prosecutor

violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments by withholding

information about witnesses, by cross-examining a witness with false assumptions, by presenting

perjured testimony, and by negatively characterizing witness testimony. All courts to address these

claims, including the state courts on direct review and the district court below, have found them

unavailing. We agree.

A. Explanation of Claims

Hawkins’s Third Claim for Relief involves his alleged jailhouse confession to a fellow

inmate, Keith Miree. The State ultimately chose not to place Miree on the witness stand due to

concerns about his credibility: Miree was caught on tape attempting to extort money from

Hawkins’s father for favorable testimony regarding Hawkins. The State did, however, crossexamine Hawkins regarding the alleged confession:
Nos. 05-4032/4049 Hawkins v. Coyle Page 10

Q. Now, did you have an occasion to be – when you were locked up did you have

an occasion to have a conversation with an individual by the name of Keith Miree?

A. Yes.

Q. And did you talk to him about this incident?

A. No, sir.

Q. You didn’t talk to him about this at all?

A. I talked to him about my indictment, about not getting an indictment.

Q. Did you have an occasion to tell him you, in fact, killed these boys[.] It wasn’t

about drugs, it was about money?

A. No, sir.

Q. You didn’t tell him that?

A. No, sir.

Q. Did you have an occasion to tell Keith Miree you should have killed that young

boy too?

A. No, sir.

Q. Never told him that?

A. No, sir.

See Hawkins, 612 N.E.2d at 1233 (Ohio 1993). Hawkins’s counsel objected, and in a sidebar

discussion in the judge’s chambers, the prosecutor admitted that he probably would not call Miree

as a witness. After further discussion on the matter, the court admonished the jury to disregard the

Keith Miree questioning:

. . . [T]he prosecutor had asked Mr. Hawkins, the witness and defendant, two

questions regarding conversations or a conversation, if you will, with a person named

Keith Miree.

. . . . The Court at this time is instructing you that you are to disregard the two

questions asked by Mr. Krumpelbeck of Mr. Hawkins regarding the discussion

between – alleged discussion between defendant and Mr. Miree.

You’re to disregard both the questions of the prosecutor and the two answers

given by the defendant.

Hawkins argues that despite the trial court's strike and curative instruction, the prosecution's

reference to the alleged confession during cross-examination of Hawkins violated Hawkins's

constitutional rights; and the State improperly used Miree to elicit this alleged jailhouse confession.

In his Eleventh Claim for Relief, Hawkins alleges a number of incidents of prosecutorial

misconduct and argues that the cumulative effect of these incidents entitled him to a mistrial.

Hawkins claims that the State withheld the names of witnesses who could have contradicted Henry

Brown’s alibi; that the State misplaced files concerning Brown; that (essentially reiterating the Third
Nos. 05-4032/4049 Hawkins v. Coyle Page 11

claim for habeas relief) the prosecutor, even though he did not expect to call Keith Miree as a

witness, asked Hawkins in cross-examination whether he had confessed to Miree; that the prosecutor

called one defense witness’s testimony “incredible” and another’s “ridiculous”; that the prosecution

suborned perjury by allowing Shawn Brown to testify that, in the spring of 1989, Hawkins had

showed her a gun that matched a gun box belonging to Hawkins, when in fact Hawkins’s gun had

been in police custody since 1988; that the prosecutor misrepresented testimony by arguing that

Kenneth Boehmler identified Hawkins as the man he saw in the victims’ car the night of the killing;

and that the prosecutor improperly commented on the defense’s failure to present an expert witness

to testify about the bloody fingerprint found on a notebook in the victims’ car.

B. Analysis

In an evaluation of alleged prosecutorial misconduct the “correct inquiry is whether the

improper comments or actions ‘so infected the trial with unfairness as to make the resulting

conviction a denial of due process.’” Slagle v. Bagley, 457 F.3d 501, 515 (6th Cir. 2006) (quoting

Darden v. Wainwright, 477 U.S. 168, 181 (1986)). The Supreme Court of Ohio reviewed Hawkins’s

allegations and concluded that

the conduct of a prosecutor during trial cannot be made a ground of error unless the

conduct deprives defendant of a fair trial. Here, we find no cause to seriously

question the fairness of appellant’s trial or the integrity of the trial court’s findings.

The instances of prosecutorial misconduct, viewed singly or together, did not entitle

him to a declaration of a mistrial.

Hawkins, 612 N.E.2d at 1234 (internal quotations omitted). We employ a two-part test to determine

whether the Supreme Court of Ohio reasonably applied the federal standard in holding that

prosecutorial misconduct did not render Hawkins’s trial fundamentally unfair:

First, we determine whether the prosecution’s conduct was improper. If the answer

is affirmative, then the court considers four factors to decide whether the improper

acts were sufficiently flagrant to warrant reversal: (1) whether the evidence against

the defendant was strong; (2) whether the conduct of the prosecution tended to

mislead the jury or prejudice the defendant; (3) whether the conduct or remarks were

isolated or extensive; and (4) whether the remarks were made deliberately or

accidentally.

Slagle, 457 F.3d at 515-16. We have recognized that “the Supreme Court has clearly indicated that

the state courts have substantial breathing room when considering prosecutorial misconduct claims

because ‘constitutional line drawing [in prosecutorial misconduct cases] is necessarily imprecise.’”

Id. at 516 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974)).

We agree with the district court that the Ohio courts’ refusal to grant a mistrial on Hawkins’s

Third claim was not contrary to or an unreasonable application of clearly established Federal law.

Even if — as Hawkins complains — the prosecution violated Hawkins’s Confrontation Clause rights

by cross-examining him regarding his alleged confession to Miree, the error was harmless. Any

impact from that cross-examination was blunted immediately by the trial judge’s instructing the jury

to disregard the questions regarding Miree. Furthermore, it is unlikely that the jury was influenced

by the improper questions because it never heard any further evidence to corroborate the implication

that such a confession took place, and the overall case establishing Hawkins’s guilt was strong. 

Hawkins, 2005 U.S. Dist. LEXIS 35538, at *64-65. And the district court properly found that

because he “point[ed] to no facts in the record to demonstrate[] that Miree took steps beyond mere

listening to deliberately elicit incriminating remarks from Hawkins,” Hawkins had not established

that the State had improperly used Miree as the State’s agent, and had therefore failed to demonstrate
Nos. 05-4032/4049 Hawkins v. Coyle Page 12

a violation of his Sixth Amendment right to counsel under Kuhlmann v. Wilson, 477 U.S. 436

(1986). Hawkins, 2005 U.S. Dist. LEXIS 35538, at *86.

The district court also correctly rejected Hawkins’s Eleventh Claim, containing several

instances of alleged prosecutorial misconduct. First, with regard to witnesses who — Hawkins

claims — could have contradicted the testimony of Henry Brown, it was not objectively

unreasonable for the state courts to determine that, even if the State had given Hawkins the names

of those individuals, their testimony would not have been sufficient to undermine Henry Brown’s

testimony and Hawkins’s conviction. Although the proposed testimony would have contradicted

some of Brown’s testimony, it would not have proved that Brown did not return to the scene of the

murders before they took place; nor would it have undermined the forensic evidence against

Hawkins or otherwise shown “that Hawkins was not at the scene of the crime or a participant in the

murders.” Id. at *59. The second instance involves the prosecution’s cross-examination of Hawkins

regarding Miree, and, as we have already explained, any error resulting from that cross-examination

was harmless. See id. at *60-65. Next, Hawkins claims that the prosecution’s characterizing one

witness’s testimony as “ridiculous” and another’s as “incredible” entitled him to a mistrial. The

district court correctly concluded that no mistrial was warranted: the statements were isolated, and

the trial court took appropriate action to prevent any prejudice as a result of them. Id. at *65-67.

Nor did the prosecution mischaracterize the testimony of Kenneth Boehmler, as Hawkins claims.

Boehmler testified that he heard shots, and saw a man fitting Hawkins’s description getting out of

a parked “silverish-gray” colored car. During closing argument, the prosecutor said that Boehmler

“describes the man involved in the killing and puts defendant in that car” and that “if that description

didn’t fit the defendant I never heard a better one.” The trial court admonished the jury that closing

arguments did not constitute evidence. We agree with the district court that it was not objectively

unreasonable for the Ohio courts to determine that these statements did not render the trial

fundamentally unfair. Id. at *67-69. The fifth of these instances — Hawkins’s claim that the

prosecutor insinuated during closing argument that Hawkins had some duty to call an expert to

refute the State’s bloody fingerprint evidence — was also correctly found to be meritless by the

district court. The Ohio courts had all held that the trial court took appropriate action to correct the

prosecutor’s insinuation, the prosecutor’s statement was isolated, it was not deliberate, and the trial

court not only gave an appropriate curative instruction, but it also shortly thereafter reiterated the

presumption of innocence and appropriate burdens in criminal cases, and therefore, no constitutional

error occurred. Id. at *69-71. The district court correctly concluded that the judgment of the Ohio

courts was neither contrary to nor an unreasonable application of clearly established federal law.

Finally, Hawkins’s Eleventh Claim includes the allegation that the State suborned perjury

when Shawn Brown was permitted to testify that she had seen Hawkins in May of 1989 with a gun

that matched the gun box recovered from Hawkins’s house by police in June of 1989. This was

impossible, Hawkins argues, because on October 17, 1988, the police had seized from Hawkins’s

home the gun matching that gun box, and that gun was actually in police custody in May of 1989.

Hawkins contends that this testimony misled the jury into believing that the gun box, which was

unquestionably recovered from Hawkins’s home, was related to the murder weapon. Although a

juror might have mistakenly thought that Shawn Brown testimony meant that she had seen Hawkins

with the gun originally stored in the gun box, it was made clear at other times during the trial that

the gun box was not related to the murder weapon. Rather, the gun box was offered merely to show

that the .25 caliber was Hawkins’s “weapon of choice.” The prosecution made this clear a number

of times, including during its opening and closing statements. Id. at *114-17. In light of this record,

the Supreme Court of Ohio held that Hawkins’s claim of subornation of perjury is “not adequately

supported by the record.” Our review of the record confirms that this determination cannot be said

to be “based on an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254 (d)(2).
Nos. 05-4032/4049 Hawkins v. Coyle Page 13

After carefully reviewing Hawkins’s claims of prosecutorial misconduct, both individually

and cumulatively, we conclude that the district court did not err in holding that the Ohio courts’

decisions finding these claims meritless neither resulted in a judgment that is contrary to or an

unreasonable application of clearly established federal law, nor a judgment based on an

unreasonable determination of the evidence.

V. BRADY VIOLATIONS

Claims Four and Seven of Hawkins’s habeas petition advance arguments alleging that the

prosecution withheld material exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83

(1963). All courts to address these claims have found them unavailing, and we agree.

A. Explanation of Claims

At trial, the prosecution presented evidence that two of Hawkins’s fingerprints — one of

which was in blood — were found in the victims’ car. In Claim Four of his habeas petition,

Hawkins argues that the prosecution failed to disclose certain allegedly material and exculpatory

information regarding this evidence: that another forensic agency tried and failed to lift the print

in blood; that there was a break in the chain of custody of the print in blood; that the print in blood

was destroyed or distorted by the multiple attempts to lift it; that the evidence regarding the number

of identifiable points on the print in blood and the print in the door was inconsistent; and there was

other evidence that calls into question the reliability of all of the prints, including the destruction of

two other partial latent prints on the notebook.

In his Seventh Claim for Relief, Hawkins argues that the prosecution failed to provide

material and exculpatory evidence. The district court granted a COA on only two aspects of this

argument. The first deals with information concerning Henry Brown, including: that Henry Brown

had confessed to being involved in killing the victims; that Brown was fingerprinted and

photographed six days prior to his being arrested for complicity in the killings; that an assault charge

against Brown was dropped at the request of the State; that one of Brown’s many conflicting

versions of his story placed him with Tommicka Washington for four to five hours, which included

the time of the killing, but this was contradicted by Washington; and that in a statement to the police

Shawn Brown (a sister and alibi of Henry’s) said that she heard shots after 11:30 p.m., while at trial

she testified she heard shots sometime after 12:35 or 1:00 a.m. The second aspect of this claim for

which the district court granted a COA alleges that the prosecution suppressed information that the

police and prosecutor knew before trial that the police, not Hawkins, were in possession of the .25

caliber pistol from the gun box referred to at trial. Hawkins alleges that keeping this information

from the jury gave them the materially false impression that Hawkins’s gun box was tied to the

murder weapon.

B. Analysis

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held “that the suppression by

the prosecution of evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the

prosecution.” 373 U.S. at 87. The Supreme Court has since made it clear that evidence is material

“if there is a reasonable probability that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different,” Strickler v. Greene, 527 U.S. 263, 280-81 (1999)

(quoting Bagley, 473 U.S. at 682); that “the duty to disclose such evidence is applicable even though

there has been no request by the accused,” Strickler, 527 U.S. at 280 (citing United States v. Agurs, 427 U.S. 97, 107 (1976)); and that the duty encompasses “impeachment evidence as well as

exculpatory evidence,” Strickler, 527 U.S at 280 (citing United States v. Bagley, 473 U.S. 667, 676
Nos. 05-4032/4049 Hawkins v. Coyle Page 14

(1985)), and evidence “known only to police investigators and not to the prosecutor.” Strickler, 527

U.S. at 280-81.

As the district court correctly noted, Hawkins never raised his Fourth Claim in the Ohio

Courts. The magistrate characterized this as a procedural default, Hawkins v. Coyle, 2004 U.S. Dist.

LEXIS 28944, at *99 (S.D. Oh. Mar. 22, 2004), while the district court held it was a failure to

exhaust, Hawkins, 2005 U.S. Dist. LEXIS 35538, at *97. However, both the magistrate and the

district court denied the claim on its merits. On appeal, the State of Ohio does not make any

arguments concerning procedural default or exhaustion, instead arguing that the claim’s merits are

unavailing. Because we agree that Hawkins’s Fourth Claim is clearly without merit, we will simply

rule on that basis without resolving the procedural issue. First, the district court’s finding that there

was no break in the chain of custody is not clearly erroneous. Id. at *100. Second, although the

crime scene investigator’s testimony during the habeas proceeding described techniques used to

develop the print that were different from and in addition to those he testified to at trial, the failure

to disclose this information was not a Brady violation because it did not impeach or contradict the

trial testimony identifying the fingerprints. Id. at *101-04. Third, notwithstanding the discrepancies

in the State’s records regarding the number of identifiable points on the prints, all records indicated

a number of identifiable points above that which is necessary to find an accurate match, and

therefore the minor discrepancies were not material. Id. at *104-05.

Turning to the subclaims of Hawkins’s Seventh Claim for habeas relief as to which the

district court granted a COA, we conclude that the district court correctly held that Hawkins had

failed to demonstrate any Brady violation. The district court held that Hawkins had failed to make

any showing that the information about Henry Brown and the statements made by him contained

exculpatory information, and therefore Hawkins had not demonstrated any Brady claim with regard

to them. Acknowledging that Hawkins’s burden with regard to Brown’s alleged statements is made

more difficult because Brown’s file is now missing from the prosecutor’s office, the district court

held that Hawkins had not made the showing of bad faith on the part of the State in failing to

preserve the file that is necessary to establish a due process violation. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Further, the district court held that at trial Brown’s credibility had been

subject to extensive attack through cross-examination, and that the withheld statements were not

material because they were cumulative. Hawkins, 2005 U.S. Dist. LEXIS 35538, at *117-19.

Finally, the district court correctly held that the State had not committed any Brady violation

with regard to the testimony about the gun box: Hawkins had personal knowledge that the police

had seized the .25 caliber gun matching that gun box in 1988, months before the murders for which

Hawkins was on trial. The district court went on to hold, again correctly, that the State had neither

suppressed material evidence nor in any way violated Hawkins’s constitutional rights in regard to

the gun box.

VI. REFUSAL TO DISCLOSE JUVENILE RECORDS

In his Twenty-Seventh Claim for Relief, Hawkins argues that he was denied his

constitutional rights because he was not allowed access to Henry Brown’s juvenile records for the

purposes of impeachment. After conducting an in camera review of Brown’s juvenile records, the

state trial court determined that the information contained in these records either was already known

to defense counsel or would not assist Hawkins in the preparation of his case. Id. at *50. The trial

court refused to order the release of the records or to seal and append them to the trial record as an

appellate exhibit. Hawkins, 612 N.E.2d at 1233. Hawkins argues in this appeal that, as a result, he

was denied his confrontation, due process, and equal protection rights, along with his rights to

present a defense and to receive effective assistance of counsel.
Nos. 05-4032/4049 Hawkins v. Coyle Page 15

We agree with the reasoning of the district court in concluding that Hawkins did not suffer

any violation of his Confrontation Clause rights. The district court found that notwithstanding the

undisclosed juvenile records, Hawkins’s jury was presented with information that Henry Brown had

originally been charged for involvement in the murders and was being held in police custody at the

time of trial, was receiving an immunity deal in exchange for his testimony, had made a number of

inconsistent statements about the events surrounding the murders, and had been involved with drugs.

Hawkins, 2005 U.S. Dist. LEXIS 35538, at *55-56. The court concluded that Brown’s juvenile

records did not contain any new and material information, and therefore, the nondisclosure of those

records did not violate Hawkins’s constitutional rights.

Hawkins’s due process and equal protection arguments fare no better, because he has done

little, if anything, to advance these arguments at any point in this litigation. There is no indication

in the record that Hawkins ever made any constitutional argument to the state trial court regarding

Brown’s juvenile records. In fact, as noted by the Supreme Court of Ohio, “[Hawkins]’s counsel

candidly admitted at trial that his request for Brown's juvenile court records was nothing more than

a fishing expedition . . . .” 612 N.E.2d at 1233. On direct appeal to the Supreme Court of Ohio,

Hawkins at least nominally advanced the due process argument, but he failed to provide any legal

support for it and the court denied the claim on the grounds that Hawkins “failed to make a threshold

showing, supported by any legal authority, that he had any right to obtain the juvenile court records

in the first instance.” 612 N.E.2d at 1233 (emphasis added). Moreover, there is no record of

Hawkins’ ever having made any equal protection argument to the Ohio courts. Finally, even on

appeal to this court, Hawkins altogether fails to articulate how his due process or equal protection

rights might have been violated, and he certainly does not provide any case law on point. Because

we can conceive of no way in which either of these rights were violated, we find no merit to

Hawkins’s claims.

VII. CONCLUSION

Accordingly, we REVERSE the judgment of the district court granting Hawkins a writ of

habeas corpus on his Second Ground for Relief, and AFFIRM the judgment of the district court

denying habeas relief on all other grounds.