Alton COLEMAN
Classification: Serial Killer
Characteristics: Kidnappings - Rapes - Armed robberies
Number of victims: 8
Date of murders: May-July 1984
Date of arrest: July 20, 1984
Date of birth: November 6, 1955
Victims profile: Vernita Wheat, 9 / Tamika Turks, 7 / Donna Williams, 25 / Virginia Temple and her daughter Rachelle, 9 / Tonnie Storey, 15 / Marlene Walters, 44 / A 77-year-old man
Method of murder: Strangulation
Location: Indiana/Ohio/Illinois, USA
Status: Executed by lethal injection in Ohio on April 26, 2002
Summary:
At the time of Coleman's execution, there were approximately 3,700 convicted murderers on death row in the United States. Coleman was the only one with death sentences from 3 different states: Indiana, Ohio, and Illinois.
These sentences were the culmination of a 1984 midwestern crime spee by Coleman and accomplice Deborah Brown that included up to 8 murders, 7 rapes, 3 kidnappings, and 14 armed robberies.
Ohio
On July 11, 1984, 15 year old Tonnie Storey left her home in Cincinnati to attend a computer class at a junior high school. Eight days later, her bound and partially decomposed body was discovered in an abandoned building.
The cause of death was strangulation. A classmate testified and identified Coleman in the company of a woman talking to the victim on July 11th, when she was last seen alive.
A fingerprint from the scene also matched Coleman's. Both Coleman and Brown received death sentences. On appeal, Coleman's death sentence was set aside due to ineffective counsel. Brown's death sentence was commuted in 1991 by Ohio Governor Celeste as he was leaving office.
Coleman and Brown bicycled into Norwood, Ohio, on July 13, 1984. About three hours later, they drove away in Harry Walters' car, leaving Harry Walters unconscious and Marlene Walters dead. Harry Walters survived.
He testified that Coleman and Brown inquired about a camping trailer he had been offering for sale. Upon inviting Coleman and Brown into his home, he sat on the couch discussing the trailer title. Coleman picked up a wooden candlestick and, after admiring it, hit Harry Walters on the back of the head, knocking him unconscious.
A few hours later, Sheri Walters came home from work and at the bottom of the basement steps, she found her father, barely alive, and her mother, dead. Both had ligatures around their throats and electrical cords tied around their bare feet. Her mother's hands were bound behind her back and her father's hands were handcuffed behind his back. Her mother's head was covered with a bloody sheet.
Indiana
7 year old Tamika and her 9 year old niece, Annie, were walking back from the candy store to their home when they were confronted by Debra Denise Brown and Coleman. Brown and Coleman convinced them to walk into the woods to play a game. Once there, they removed Tamika's shirt and tore it into small strips which they used to bind and gag the children.
When Tamika began to cry, Brown held her nose and mouth while Coleman stomped on her chest. After carrying Tamika a short distance away, Annie was forced to perform oral sex on both Brown and Coleman, then Coleman raped her. Brown and Coleman then choked her until she was unconscious. When she awoke, they were gone.
Tamika was found dead in the bushes nearby, strangled with an elastic strip of bedsheet. The same fabric was later found in the apartment shared by Coleman and Brown. Annie received cuts so deep that her intestines were protruding into her vagina. Evidence of a remarkably similar murder in Ohio was admitted at trial.
Illinois
Juanita Wheat, the victim's mother, testified that at the time of the offense she resided in Kenosha, Wisconsin, with her daughter, Vernita, and her seven- year-old son, Brandon.
At the end of April or beginning of May of 1984, the defendant introduced himself to Juanita as Robert Knight, showed her an identification card bearing that name, and told her he lived two blocks away. Coleman visited often and ate dinner with the family over the next few weeks.
On May 29, 1984, Juanita allowed Vernita to accompany Coleman to his apartment "to pick up a stereo system." They never returned.
A customer at the local "400 Club" testified that a black man and Vernita entered the establishment at approximately 11:35 p.m. on May 29, 1984, and the man immediately used the telephone. A few minutes later a cab arrived to pick them up.
On June 19, 1984, the body Vernita Wheat was discovered in the bathroom of an abandoned building in Waukegan, Illinois. A fingerprint from Coleman was taken from the scene.
Citations:
Ohio
State ex rel. Coleman v. City of Cincinnati, 1990 WL 59257 (Ohio App. 1990) (FOIA).
State v. Coleman, 1987 WL 18124 (Ohio App. 1987) (Direct Appeal-Storey).
State v. Coleman, 544 N.E.2d 622 (Ohio 1989) (Direct Appeal-Storey).
Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001) (Habeas).
State v. Coleman, 1986 WL 14070 (Ohio App. 1986) (Direct Appeal-Walters).
State v. Coleman, 525 N.E.2d 792 (Ohio 1988) (Direct Appeal-Walters).
Coleman v. Mitchell, 244 F.3d 533 (6th Cir. 2001) (Habeas).
Indiana
Coleman v. State, 558 N.E.2d 1059 (Ind. August 24, 1990) (Direct Appeal).
Coleman v. Indiana, 111 S. Ct. 2912 (1991) (Cert. denied) .
Coleman v. State, 703 N.E.2d 1022 (Ind. 1988) (PCR) .
Coleman v. Indiana, 120 S.Ct. 1717, 146 L.Ed.2d 389 (2000) (Cert. granted).
Coleman v. State, 741 N.E.2d 697 (Ind. December 29, 2000) (On Reconsideration).
Illinois
People v. Coleman, 544 N.E.2d 330 (Ill. 1989) (Direct Appeal).
People v. Coleman, 660 N.E.2d 919 (Ill. 1995) (PCR).
Coleman v. Ryan, 196 F.3d 793 (7th Cir. 1999) (Habeas).
Final Meal:
Filet mignon with mushroom gravy, biscuits and gravy, fried chicken, French fries, broccoli with cheese, collard greens, onion rings, corn bread, a salad, sweet potato pie, butter pecan ice cream and cherry cola.
Final Words:
"The Lord is my shepherd," which he repeated over and over again.
ClarkProsecutor.org
ProDeathPenalty.com
Alton Coleman was twice sentenced to death for Cincinnati-area slayings in 1984 in a killing rampage in which he also terrorized Dayton. The slayings were part of a crime campaign that also led to death sentences for Coleman in Indiana and Illinois.
Coleman of Waukegan, Ill., was sentenced to die in Ohio for the strangulation of Tonnie Storey, 15, of Cincinnati and the beating death of Marlene Walters, 44, of Norwood, a suburb of Cincinnati.
A three-judge panel of the 6th U.S. Circuit Court of Appeals threw out the sentence in the Storey case after concluding Coleman’s attorneys did not adequately represent him in a 1985 trial.
The court, however, upheld Coleman’s conviction. The court earlier had upheld Coleman’s death sentence for Marlene Walters’ death. Coleman’s attorneys have asked the U.S. Supreme Court to review the Walters ruling.
They argue that since the same two attorneys represented Coleman in both Ohio cases, it is inconsistent that his sentence be overturned in one case and upheld in the other.
Coleman also was sentenced to die in Indiana for killing Tamika Turks, 7, of Gary, Ind., and in Illinois for slaying Vernita Wheat, 9, of Kenosha, Wis. Vernita's body was found in Waukegan.
Coleman's common-law wife, Debra Denise Brown, traveled with him during the killing rampage and was sentenced to death in the Storey and Turks killings.
Coleman briefly surfaced in Dayton in July 1984 after he and Brown kidnapped Cumberland, Ky., college associate professor Oline Carmical. He was freed from the trunk of a car near McCabe Park after a passer-by heard noises from the vehicle. Carmical was not injured.
That same morning, Coleman beat and robbed an elderly couple, Millard and Katheryn Gay. Her life was spared when Coleman's gun misfired. Coleman tied up and robbed another Dayton couple, Dallas and Flossie Davis, that same day.
Former Ohio Gov. Richard Celeste in 1991 commuted Brown's sentence to life for the Storey murder. Brown is at Ohio's prison for women in Marysville and still faces the death sentence in Indiana.
Celeste had said a report from his staff showed Brown was retarded, suffered from childlike emotional development and had a "master-slave" relationship with Coleman. Brown and Coleman were accused of committing eight random killings in six states during the summer of 1984.
They were captured in Evanston, Ill. Brown and Coleman also were the prime suspects in the kidnap-murder of Donna Williams, 25, of Gary, Indiana. Her body was found in Detroit. They were never tried for the crime.
Clark County Prosecuting Attorney
7 year old Tamika and her 9 year old niece, Annie, were walking back from the candy store to their home when they were confronted by Debra Denise Brown and Coleman. Brown and Coleman convinced them to walk into the woods to play a game.
Once there, they removed Tamika's shirt and tore it into small strips which they used to bind and gag the children. When Tamika began to cry, Brown held her nose and mouth while Coleman stomped on her chest.
After carrying Tamika a short distance away, Annie was forced to perform oral sex on both Brown and Coleman, then Coleman raped her. Brown and Coleman then choked her until she was unconscious. When she awoke, they were gone.
Tamika was found dead in the bushes nearby, strangled with an elastic strip of bedsheet. The same fabric was later found in the apartment shared by Coleman and Brown.
Annie received cuts so deep that her intestines were protruding into her vagina. Evidence of a remarkably similar murder in Ohio was admitted at trial.
These acts proved to be part of a midwestern crime spee by Coleman and Brown that included up to 8 murders, 7 rapes, 3 kidnappings , and 14 armed robberies. Coleman has accumulated death sentences in Illinois, Indiana, and Ohio.
Coleman Put to Death
By Marie McCain - Cincinnati Enquirer
April 26, 2002
Lucasville - Convicted serial killer Alton Coleman, who along with girlfriend, Debra Denise Brown, cut a murderous swath across at least four Midwest states during the summer of 1984, was executed by the state of Ohio today.
He was pronounced dead at 10:13 a.m. Mr. Coleman was executed for the 1984 beating death of Norwood resident Marlene Walters. His last words were: "The Lord is my shepherd," which he repeated over and over again.
Prison officials said Mr. Coleman had a fitful night before the execution. "I don't know if it was from indigestion or nervousness," said Reginald Wilkinson, director of the Ohio Department of Rehabilitation and Correction. Mr. Coleman ordered the largest final dinner of any condemned inmate to date.
He declined to shave or shower when he awoke between 4 and 5 a.m., prison officials said. He ate a single piece of toast. Two sisters and a brother, who were supposed to attend final visits with the 46-year-old Illinois native, did not show.
Prison officials say Mr. Coleman spent the time Thursday evening and early Friday with his attorneys and his spiritual advisers. It was believed that his family had "transportation problems." He was baptized Tuesday. He is a follower of Dallas-based televangelist T.D. Jakes. "He appears to have accepted his fate," said Andrea Dean, an ODRC spokeswoman.
About 16 anti-death penalty protesters were gathered outside the Southern Ohio Correction Facility in Lucasville as the execution began. Six Cincinnati protesters, including Sister Alice Gerdeman, coordinator of the Intercommunity Justice and Peace Center in Over-the-Rhine, were part of the group.
On Thursday, Mr. Coleman requested a final dinner of filet mignon, sauteed mushrooms, sweet potato pie with whipped cream, butter pecan ice cream, biscuits with brown gravy, broccoli with cheese, french fries, cherry coke, a green lettuce salad with French dressing, collard greens, onion rings, fried chicken breast and corn bread. Mr. Wilkinson said Friday that in lieu of filet mignon Mr. Coleman was served a New York strip steak. All the food came from the prison kitchen, except the ice cream.
Alton Coleman (November 6, 1955 – April 26, 2002) was an African-American serial killer. He was executed by the state of Ohio for the murder of 44-year-old Marlene Walters of Norwood, Ohio during a six-state killing spree in 1984.
Overview
Coleman received four death sentences from three Midwest states: Illinois, Ohio (two times), and in Indiana. At the time of his execution he was the only condemned person in the country to have death sentences in three states. His partner-in-crime, Debra Denise Brown, was originally slated to be executed in Ohio, but in 1991 her death sentence was commuted to life in prison by Governor Richard Celeste. She still has a death sentence for the murder the duo committed in Indiana. However, Brown is serving her sentence, without possibility of parole, in the Ohio Reformatory for Women in Marysville, Ohio.
During the summer of 1984, the 28-year-old Coleman and Brown, who was 21 at the time, embarked upon a killing spree through several Midwestern states.
By the time the couple were caught, Coleman was charged or wanted for questioning in assaults on at least 20 people in 13 separate attacks, including seven murders. Almost all of the victims were African-American like Coleman and Brown, but authorities said that was simply because the duo knew they would blend better in the black community, and that there was no racial motive in the murders.
Background of Coleman and Brown
Coleman was a middle-school drop-out who lived with his 73-year-old grandmother in Waukegan, Illinois, and who was well-known to the Illinois law enforcement community. The son of a prostitute who would often have sex with customers in his presence, he was charged with sex crimes six times between 1973 and 1983. Two of the cases were dismissed, and Coleman pleaded guilty to lesser charges in two and was twice acquitted. He claimed to "like it in the butt", and Coleman was scheduled to go on trial in Illinois on charges stemming from the rape of a 14-year-old girl when he fled and began his indiscriminate killing.
One of 11 children, Brown was borderline mentally retarded, suffered head trauma as a child, and was described as a "dependent personality." She was engaged to another man when she met Coleman in 1983, but left her family and moved in with him shortly afterward. Although a willing participant in the assaults and murders, Brown was never violent or in trouble with the law until she met up with Coleman.
In commuting Brown's sentence, Governor Celeste cited her low IQ scores, ranging from 59 to 74, and her "master-slave" relationship with Coleman. Brown was one of eight Ohio death row inmates to have her sentence commuted by Celeste, a staunch opponent of capital punishment, a week before he left office. Four of those whose sentences were commuted were the state's only female death row inmates.
Despite her non-violent history before the spree, Brown remains unrepentant for her acts. During the sentencing phase of her first Ohio trial, Brown sent a note to the judge which read in part: "I killed the bitch and I don't give a damn. I had fun out of it."
Details of the Murders
May 1984
Their crimes began in May 1984 when Coleman befriended Juanita Wheat who lived in Kenosha, Wisconsin, and was the mother of nine-year-old Vernita. On May 29, 1984, Coleman abducted Vernita to Waukegan, Illinois. Her body was discovered on June 19, 1984 in an abandoned building, four blocks from Coleman's grandmother's apartment. The body was badly decomposed and the cause of death was ligature strangulation.
On May 31, 1984, Coleman befriended Robert Carpenter in Waukegan, Illinois, and spent the night at his home. The next day he borrowed Carpenter's car to go to the store and never returned.
June 1984
In June 1984, Coleman and Brown appeared in Gary, Indiana, where they encountered two young girls, 9-year-old Annie and 7 year old Tamika Turks. Tamika's partially decomposed body was discovered on June 19, 1984. The cause of death was ligature strangulation. Annie survived, even though she was sexually assaulted by both Coleman and Brown.
The day Tamika's body was found, Coleman befriended Donna Williams, 25, of Gary, Indiana. On July 11, 1984, Williams' badly decomposed body was discovered in Detroit, about a half-mile from where her car was found. The cause of death was again ligature strangulation.
On June 28, 1984, Coleman and Brown entered the home of Mr. and Mrs. Palmer Jones of Dearborn Heights, Michigan. Palmer was handcuffed by Coleman and then badly beaten. Mrs. Jones was also attacked. Coleman ripped the Jones' phone from the wall and stole their money and car.
July 1984
The day after Independence Day 1984, Coleman and Brown came to Toledo, Ohio, where Coleman befriended Virginia Temple, the mother of several children. Her eldest child was Rachelle, aged nine. When Virginia dropped out of communication with relatives, they became concerned about the children and entering the home found the young children alone and frightened. Virginia's and Rachelle's bodies were discovered in a crawl space. A bracelet was missing from the home and later was found in Cincinnati under the body of Tonnie Storey. The cause of death of both Virginia and Rachelle was strangulation.
The same morning as the murders of Virginia and Rachelle, Coleman and Brown entered the home of Frank and Dorothy Duvendack of Toledo where Coleman proceeded to bind the couple with appliance and phone cords which had been cut. Coleman and Brown took money and the Duvendack's car. One of Mrs. Duvendack's watches was stolen and found later under another victim.
Later that same day, Coleman and Brown appeared at the home of the Reverend and Mrs. Millard Gay of Dayton, Ohio. They stayed with them in Dayton and then accompanied them to Lockwood, Ohio, on July 9, to a religious service. On July 10, the Gays dropped off Coleman and Brown in downtown Cincinnati.
By this time, Coleman had come to the attention of the FBI, which on July 12, 1984, added him to its Ten Most Wanted List as a "special addition". Coleman was just the 10th person since the initiation of the list in 1950 to merit inclusion in such a manner.
Coleman and Brown bicycled into Norwood, Ohio, on July 13 at about 9:30 a.m. Less than three hours later they drove away in Harry Walters' car, leaving Harry Walters unconscious and his wife, Marlene, dead.
Harry Walters survived. He testified that Coleman and Brown inquired about a camper he had put up for sale. Walters sat on the couch as he and Coleman discussed the trailer title. Coleman picked up a wooden candlestick and, after admiring it, hit Harry Walters on the back of the head. The force of the blow broke the candlestick and drove a chunk of bone against Mr. Walters' brain. From that point on, Mr. Walters remembered little else.
Sheri Walters, Harry and Marlene's daughter, came home from work at about 3:45 p.m. and at the bottom of the basement steps, she found her father, barely alive, and her mother, dead. Both had ligatures around their throats and electrical cords tied around their bare feet. Her mother's hands were bound behind her back and her father's hands were handcuffed behind his back. Her mother's head was covered with a bloody sheet.
The coroner indicated Marlene Walters had been struck on the head approximately 20 to 25 times. Twelve lacerations, some of which were made with a pair of vice grips, covered her face and scalp. The back of her skull was smashed to pieces. Parts of her skull and brain were missing.
The living room hallway, and basement, were splattered with blood. Fragments of a broken soda bottle, bearing Coleman's fingerprints, were found in the living room. Strands of Marlene Walters' hair were found on a blood-stained magazine rack located in the living room. Bloody footprints, made by two different kinds of shoes, were found in the basement.
The family car, a red Plymouth Reliant, was gone. Money, jewelry, and shoes had been stolen. Left behind were two bicycles, clothes and shoes.
Two days later, the Plymouth showed up abandoned in Kentucky. The couple then kidnapped Oline Carmichael Jr., a Williamsburg, Kentucky, college professor and drove back to Dayton with their victim locked in the trunk of the car. On July 17, in Dayton, they abandoned this stolen vehicle and Carmichael was rescued by authorities.
Coleman and Brown reappeared at the home of Millard and Kathryn Gay. The Reverend Gay recognized Coleman, who was by this time the subject of a huge nationwide manhunt, and he and his wife were accosted with guns. The Reverend Gay asked Coleman, "Why you want to do us like that, like this," and according to Gay, Coleman responded: "I'm not going to kill you, but we generally kills them where we go." Coleman and Brown took their car and headed back toward Evanston.
On the way back home, they take time to steal another car, killing the 77-year-old man who owned it.
Capture and Trial
On July 17, 1984, Alton Coleman became the 388th fugitive listed by the FBI on the Ten Most Wanted list.
On July 20, 1984 in Evanston, illinois, someone from Coleman’s old neighborhood pulled up to a red light. As he waited for the light to change Coleman and Brown crossed the street in front of his car. He only knew Coleman casually but did recognize him. As Coleman and Brown continued walking west the witness drove north to a gas station where the police were notified.
The information was dispatched and a description of the two was broadcasted. As officers pulled into the area a detective saw Coleman and Brown sitting on probable bleachers in an empty Mason Park; but noted they were wearing different tee shirts. The detective informed the other units just as two sergeants were driving by the park. As they heard the broadcast they turned and saw the two. As Coleman was approached the officers observed Brown walking away from Coleman toward the rear of the park.
The detective joined the two sergeants and Coleman was approached for questioning. As Coleman was being interviewed, two other officers stopped Brown as she tried to exit the park. She was searched and a gun was found in her purse. Coleman had no identification and denied he was Alton Coleman. Both Coleman and Brown were taken into custody without incident and transported to the Evanston Police Department where both were identified by fingerprints.
In the police station Coleman was strip searched and a steak knife was found between two pair of sweat socks he was wearing. When taken into custody they had a shopping bag full of different tee shirts and caps. It was learned as the two walked they would stop every three to four blocks to change shirts and caps.
A week after they were arrested, more than 50 law enforcement officials from Illinois, Wisconsin, Michigan, Indiana, Kentucky and Ohio met to plan their strategy for prosecuting Coleman and Brown. Michigan, which does not have the death penalty, was quickly ruled out as the place to begin and eventually Ohio was given the first shot at the alleged spree killers.
"We are convinced that prosecution (in Ohio) can most quickly and most likely result in the swiftest imposition of the death penalty against Alton Coleman and Debra Brown", U.S. Attorney Dan K. Webb said.
Appeals and Execution
Ohio was successful in convicting Coleman and Brown on a pair of aggravated murder charges (In May 1985 for the murder of Tonnie Storey, and in June 1985 for the murder of Marlene Walters), as well as a plethora of other violent crimes. They were both sentenced to be executed and the lengthy appeals process began. Coleman's case went to the United States Supreme Court several times between 1985 and 2002, but his numerous arguments that his conviction and death sentence were unconstitutional failed to sway the justices.
By April 2002, time had run out for Coleman. His last-ditch effort to avoid lethal injection was unsuccessful when on April 25, 2002, the Ohio Supreme Court rejected a claim by Coleman's attorneys that the state's plan to accommodate the large number of victims and survivors who wanted to view the execution would turn it into a "spectator sport". There were so many victims and survivors who were allowed to witness the execution that prison officials had been forced to set up a closed-circuit viewing outside the death house.
For his final meal, Coleman ordered a well-done filet mignon smothered with onions, fried chicken breasts, a salad with French dressing, sweet-potato pie topped with whipped cream, french fries, collard greens, onion rings, cornbread, broccoli with melted cheese and biscuits and gravy. He washed it all down with a Cherry Coke.
On April 26, 2002, reciting "The Lord is my shepherd", Alton Coleman died by lethal injection in the death chamber at the state prison in Lucasville, Ohio.
Reginald Wilkinson, director of the Ohio Department of Rehabilitation and Correction, said Coleman did not convey remorse for the killings
Court Decisions
Coleman v. Mitchell, United States Court of Appeals for the Sixth Circuit, 268 F.3d 417; 2001 U.S. App. LEXIS 21639; 2001 FED App. 0367P (6th Cir.), October 10, 2001
In re Coleman, Supreme Court of Ohio, 95 Ohio St. 3d 284; 2002 Ohio 1804; 767 N.E.2d 677; 2002 Ohio LEXIS 916, April 19, 2002
State v. Brown, Supreme Court of Ohio, 38 Ohio St. 3d 305; 528 N.E.2d 523; 1988 Ohio LEXIS 289, August 31, 1988
State v. Coleman, Supreme Court of Ohio, 37 Ohio St. 3d 286; 525 N.E.2d 792; 1988 Ohio LEXIS 212, July 6, 1988
State v. Coleman, Court of Appeals of Ohio, First Appellate District, Hamilton County, 1987 Ohio App. LEXIS 9048, October 7, 1987
Wikipedia.org
Clock Runs Out on Alton Coleman
By Randy Ludlow - Cincinnati Post
April 26, 2002
LUCASVILLE - Alton Coleman, who left eight people dead in a murderous rampage through six Midwestern states, was executed today by lethal injection. He was pronounced dead at 10:13 a.m. EDT.
Coleman, 46, who was baptized three days ago, was put to death at the Southern Ohio Correctional Facility for the savage beating death of Marlene Walters, 44, in her Norwood home on July 13, 1984.
In a holding cell 13 steps from the death chamber, Coleman spent his last hours scribbling notes to family and friends, meeting with his spiritual advisers and watching videotapes recorded by an evangelical Christian minister.
Prison spokesman Andrea Dean said Coleman woke up about 5:15 a.m. after watching television and listening to music late into the night. He had expected that his two sisters and a brother would visit with him in the death house this morning, but they did not show up.
Sixteen witnesses related to Coleman's victims, including Harry Walters - who was attacked along with his wife but survived the vicious beating - arrived this morning to watch in person and on closed-circuit TV as Ohio executed the only man in U.S. history sentenced to death in three states.
After an 0-for-6 showing in the courts on Thursday in a last-gasp bid to keep their client alive, Coleman's public defenders told the office of Ohio Attorney General Betty Montgomery there was a less than 1-percent chance they would file further appeals.
Coleman, of Waukegan, Ill., became one of the most notorious serial killers to ever stalk the Midwest in murdering four adults and four children during a six-week reign of brutality that wove through Wisconsin, Illinois, Indiana, Michigan, Ohio and Kentucky.
That rampage took him to Lexington in mid-July where Mrs. Walters' auto was found abandoned in a cornfield near Lexington July 15, two days after her murder. On July 17, Oline Carmicalof Williamsburg was kidnapped in Lexington and left in the trunk of his car, which was found in Dayton, Ohio.
Coleman, who was black, largely preyed on other African Americans, with Mrs. Walters his only white murder victim. Coleman also was convicted of the rape and strangulation murder of Tonnie Storey, 15, of Mohawk, during his stay in the Cincinnati area.
Coleman made no request of prison officials to contact Debra Denise Brown, his girlfriend and companion in crime who is serving life sentences for the murders of Mrs. Walters and Miss Storey and who faces execution in Indiana.
Coleman arrived at the death house in Lucasville shortly after 10 a.m. Thursday for what would be Ohio's fourth execution - after a 36- year hiatus in capital punishment - since 1999. ''He had a very peaceful evening. He appears to have accepted what lies ahead for him,'' Ms. Dean said this morning.
Prison officials served him his final meal last night, the largest yet ordered at Lucasville by a condemned man. His menu included a filet mignon with mushroom gravy, biscuits and gravy, fried chicken, French fries, broccoli with cheese, collard greens, onion rings, corn bread, a salad, sweet potato pie, butter pecan ice cream and cherry cola. He ate part of the meal at 4 p.m. and snacked on it through the evening. He declined breakfast this morning, saying he was still full from dinner.
In motions objecting to the closed-circuit TV broadcast of his death to the large number of witnesses to ineffective legal counsel, Coleman and his lawyers failed to win a reprieve in six attempts before four courts - the 10th District Ohio Court of Appeals, the Ohio Supreme Court, the 6th Circuit U.S. Court of Appeals and the U.S. Supreme Court.
Harry Walters, who was to watch in person with sons-in-law Michael Blunt and Scott Lillard as Coleman died from a $43 dose of generic chemicals, had said ''execution is the solution'' to winning the justice and closure he feels his family long has been denied.
Coleman and Ms. Brown were invited into the Walters' home after they pretended to be interested in purchasing a camping trailer posted with a ''for sale'' sign outside their Floral Avenue residence.
Coleman's other murder victims were small girls in Waukegan, Ill., and Gary, Ind., an Indiana woman kidnapped and taken to Detroit, a mother and her daughter in Toledo and an elderly man in Indianapolis.
Relatives of those victims, plus Cincinnatians Harry Storey and Paulette Anderson, the father and aunt of Miss Storey, were to watch Coleman's death on two TVs in J Block adjacent to the death house at Lucasville.
Coleman and his lawyers unsuccessfully pleaded for mercy from the courts and Gov. Bob Taft, contending his violence was the outgrowth of growing up in a brothel where he was abused and brain damage he suffered in the womb from his prostitute mother's alcohol and drug abuse.
Coleman denied he killed Mrs. Walters, with Ms. Brown confessing to her murder, but the Hamilton County Common Pleas Court jury refused to buy their story.
Ms. Brown was sentenced to death for the Storey murder, but her sentence was commuted to life imprisonment in early 1991 by outgoing Gov. Richard Celeste. She remains imprisoned at the Ohio Reformatory for Women at Marysville.
The Crime Library
"Alton Coleman & Debra Brown: Odyssey of Mayhem," by Mark Gribben.
Deadly Duo
Maybe people shouldn’t be surprised that a boy who had to endure the nickname “Pissy” because of a tendency to wet his pants would grow up to be one of America’s most savage spree killers.
And it certainly didn’t help that Pissy would go to prison on a robbery charge and emerge two years later with a tendency to dress in women’s clothing and a desire for rough sex.
Whatever the reasons, Alton Coleman and his girlfriend Debra Denise Brown will go down in history as a short-lived U.S. version of Great Britain’s multiple sex-slayers Myra Hindley and Ian Brady.
The story of Coleman and Brown begins in the mid-1970s, takes place in five states and involves one of the largest manhunts in recent history.
It is a tale of American criminal justice that stands among the most depraved and cruel incidents of the modern age -- Coleman and Brown demonstrated a lack of respect for human life that shocked even hardened FBI agents and police officers.
In less than two months, they assaulted, raped and murdered their way from Illinois to Michigan and down to Kentucky before authorities were finally able to capture then.
Coleman and Brown are behind bars, each awaiting a date with the executioner, but the evil they wrought upon their innocent victims lives on to this day. The duo have used every avenue of judicial appeal possible and seek mercy from the courts – mercy they rarely showed when they prowled the Midwest.
With every new court ruling or delay, dozens of survivors relive the horror of their encounters with the murderous pair of lovers.
A child victim who managed to avoid death at their hands vows that she will never marry because of her inability to trust and questions whether she is still “pure”. Another survivor battles drug addiction, suicide attempts, and post-traumatic stress disorder.
A mother and father must adjust to the fact that Coleman will never stand trial for their daughter’s murder and they may never find out the circumstances surrounding her slaughter.
Coleman’s family, on the other hand, consider themselves victims – not of their deadly relative, but of a system that they believe persecutes and plans to kill an innocent man. Debra Brown's mother continues to rue the day her daughter met Alton Coleman.
Brown was “a good girl,” unknown to police before she fell under Coleman’s spell, but by the time the pair were caught, it was clear that Brown was just as vicious and murderous as her ex-con boyfriend.
Probably what is most disturbing about Alton Coleman is that he shouldn’t have been on the streets to begin his rape- robbery -murder spree. Over and over Coleman managed to manipulate the judicial system in his favor, beating sexual assault charges on several occasions.
Frustrated prosecutors and lawmen knew they had a monster on their hands, but could only stand by helplessly as jury after jury let the him walk, confident the system had “worked” to free an innocent man.
A Boy Called "Pissy"
Born in Waukegan, an Illinois town about a half-hour’s drive north of Chicago, Alton Coleman endured the taunts of schoolchildren who teased him because he so often wet his pants. They christened the mildly retarded boy “Pissy.”
Family members and law enforcement officials who had dealings with Coleman since his teen years said Alton was slow to show emotion and generally kept to himself.
Clearly alienated from his peers, Coleman had a reputation for his strong sex drive – reportedly he was bisexual and willing to engage in sex any time, any place with anyone. Said one friend of Coleman’s late mother: “He knew he was different…even as a young child. “As he grew up, (Coleman) was deeply into insidious kinds of sexual gratification.”
Coleman first came to the notice of police as a teenager when he was picked up for breaking windows in his Waukegan housing project. He was quickly labeled as a troublemaker, but for the most part, his crimes were of the petty sort.
There was little indication to authorities of the mayhem to come. Interestingly, property damage, often in the form of arson, can be an indicator of serial murder tendencies. That is not to say that every youngster who breaks windows or lights fires is bound to be a serial killer, but only that many multiple murderers committed similar acts as children.
On the way to becoming a serial killer, Coleman gave the law many chances to put him away, but Alton was “smooth as silk,” according to those who fought him in court. Lawmen said Coleman put on a good appearance in court which often convinced jurors that authorities had the wrong man.
Alton, according to friends, also relied upon the supernatural to help him escape justice. He claimed that voodoo made him invulnerable to attack by the law.
“He was good at conning jurors,” Waukegan Police Lt. Marc Hansen told the Detroit Free Press in 1984 when Coleman and Harris were hiding out in Detroit. “He tells a convincing story in court. People are impressed with his testimony. He comes off as a decent person.”
A prosecutor who watched Coleman beat a rape charge agreed. “He knows what kind of case holds up in court and which ones don’t,” said former U.S. attorney Fred Foreman. “He’s been to the penitentiary. He’s a career criminal”
But when the façade wouldn’t work and voodoo god Baron Samedi wasn’t listening, Coleman resorted to more common forms of beating the rap, most notably witness intimidation. “It’s difficult to get people in court to prove these charges because they are sexual assault charges, they involve kids, they involve family that don’t want to see him go to jail,” said Hansen.
In 1983, Coleman’s sister went to authorities and told them her brother tried to rape her eight-year-old daughter. Three weeks later, she went to court to have the charges dropped. “It’s a misunderstanding,” she said. “A lot of families go through that. It doesn’t make any difference now.”
The judge hearing the motion for dismissal was astounded by the 25-year-old woman’s testimony “I think the woman as she stands here today, is terrified of this man,” the judge said. He called her account of the incident “completely implausible.” But in the end, with no victim and no witnesses, the judge had no choice but to free Alton Coleman and dismiss the charges.
Coleman’s rap sheet before his Midwestern spree reads like a one-man sex crime wave. In 1973 he and an accomplice kidnapped, robbed and raped an elderly woman.
She refused to testify about the rape and Coleman served two years on the robbery charge. Three months after his release from Joliet, Coleman was arrested for another rape. He was acquitted but served time for a lesser charge. Four years after that spell in the pen, Coleman was acquitted of rape.
A year later he was arrested for an attempted rape – the charge was dismissed. In July, 1983 he was charged with the rape of his niece. That charge was dismissed. In early 1984 he was indicted for the knifepoint rape and murder of a suburban Chicago girl whose mother was a friend of his.
Coleman learned he was wanted for that crime but disappeared, kicking off his multi-state crime spree with his girlfriend, Debra Brown.
Odyssey of Mayhem
Why Alton and Debra went underground is still a mystery 15 years after they were arrested. Police blamed Coleman’s “intense hatred of blacks,” but longtime friends dismissed that reason as absurd.
The pair’s victims were mostly black because they were in the wrong place at the wrong time. Coleman stayed in traditionally black neighborhoods because they provided a place for him to hide.
“That sounds so crazy to me,” said one Waukegan public official who knew Coleman since “he was in diapers.” “Why does he victimize blacks? Black neighborhoods are the logical place for him to go. If he went into a white community, they would have found him long ago.”
A friend of the family said Coleman could not deal with his homosexual tendencies. “He used to dress up like a woman a lot. It was well known that he had different habits than a normal male,” the friend said.
Coleman is a classic “disorganized serial killer.” He rarely stalked a particular victim, but instead lashed out at whomever was nearby.
He used whatever tools he had handy to kill or incapacitate his victims and there did not appear to be any ritual to his violence.
What probably set him off was the realization that he no longer had anything to lose. Perhaps the indictment on the aggravated rape and murder charges – which could have brought the death penalty – were enough to finally push him over the brink to whatever madness prompts such violence.
While the pair was on the run, Coleman was indicted on murder charges in Wisconsin and a federal warrant was issued for his capture.
Regardless of the motivation, Coleman and Brown began their spree on June 5, 1984 when the pair rented an apartment in Gary, Ind. Coleman had been wanted by police since May 31 and Debra Brown had been interrogated about his disappearance June 1.
The Spree Begins
The pair laid low for two weeks until June 18 when two young girls, Tamika Turks and her 9-year-old aunt disappeared on their way to a candy store. Later that day, the 9-year-old was found beaten and raped. Tamika was missing.
A day later, Tamika's badly ravaged body was found in a wooded area in Gary. She had been raped and killed by someone stomping on her chest.
The older girl was forced to watch as the pair killed Tamika – Brown holding Tamika to the ground and covering her nose and mouth and Coleman jumping on her chest and face until her ribs fractured and punctured her vital organs.
The older girl then was forced to have sex with both Brown and Coleman before being beaten about her head. To this day the young woman suffers severe headaches and screaming fits.
“She will get to screaming and crying like someone is hitting her on the back of the head,” said Mary Hilliard, the child’s mother. Her injuries left the family with $15,000 in medical bills, which were substantially, but not completely covered by insurance.
LaVerne Turks, Tamika’s mother, was forced to move to Minneapolis because the memories of Tamika in Gary, Indiana, were too painful. “LaVerne’s gone. Tamika’s missing. My daughter is having these problems. Our family will never be the same,” said Hilliard, who attempted suicide shortly after her granddaughter’s death.
The same day Tamika's body was discovered, Donna Williams, 25, was reported missing by her parents. Her car was stolen, as well.
A week later, Williams’s car was found abandoned in Detroit with a forged identification card featuring Brown’s picture. Residents from the area said the car had been parked in the alley since June 19.
Police in four states were now looking for the pair, working on the assumption that Donna Williams had been murdered, even though her body had not been found.
In the meantime, two days after Williams was reported missing, a Detroit woman was kidnapped by a man and woman whom she later identified as Coleman and Brown. She escaped while driving the pair to Toledo by purposefully ramming her car into oncoming traffic.
Coleman and Brown were able to survive by befriending good Samaritans and later turning on their friends, authorities said. “We’ve come to the conclusion that Coleman and Brown are staying with people they meet,” said FBI Special Agent John Anthony in Detroit. “They spend a day or two with the people, get a little money gambling with them and then assault and rob them and steal their car.”
Detroit Crime Wave
While in Detroit, Coleman and Brown eluded police while instigating a small, but violent, crime wave. Warrants for their arrest were issued for the kidnapping and robbery of the 28-year-old Detroit woman who managed to escape the killers, a June 28, 1984 robbery and beating of an elderly Dearborn Heights couple and the June 30 robbery of two Detroit men.
By the time the deadly duo left Detroit, police in Illinois, Wisconsin, Indiana, Ohio and Michigan, as well as federal authorities, were on the lookout.
Despite Coleman’s disorganized pattern of murder, there were some similarities among the crimes – in every case the cars stolen by Coleman and Brown were recovered within 12 hours.
When authorities were not able to locate a 1975 Buick stolen by the pair after they beat and robbed a 55-year-old woman and her companion, they had good reason to suspect that Coleman and Brown had left the Motor City.
Sadly, even though the pair had fled to Toledo, the evidence of their crimes continued to surface. In an abandoned house near Wayne State University in Detroit, the badly decomposed body of Donna Williams was found on July 11. It was clear that she hadn’t lived long after she arrived, as a hostage, in Detroit.
There will likely never be any closure – legal or psychological – for the family of Donna Williams. When authorities gathered to determine the best course of action against Coleman and Brown, the Williams case was not tried.
“We chose to go with the strongest cases against the two that would result in the death penalty,” said Lake County, Indiana prosecutor Jack Crawford. “It appeared that Williams was killed in Michigan, which does not have the death penalty.”
For Robert and Zenota Williams, Donna’s parents, punishment is not foremost on their minds. “I will always wonder what, exactly, happened,” Zenota Williams told the Detroit Free Press in a retrospective on the spree three years later.
Three other homicides tied to the pair will also probably not ever be tried: the slaying of 77-year-old Eugene Scott of Indianapolis and the killings of Virginia Temple and her 10-year-old daughter in Toledo.
Scott was suspected of being their last murder victim because his car was found in Evanston, Ill. where they were arrested.
From Toledo, the pair continued south, stopping long enough in Cincinnati to murder Marlene Waters, who was found bludgeoned to death in the basement of her home.
Waters’ husband was badly beaten in the attack and left for dead. Coleman and Brown stole the Waters’ car and headed to Lexington, Ky., where they abandoned the car in a cornfield.
In nearby Williamsburg, the duo kidnapped Oline Carmical and drove to Dayton, Ohio leaving Carmical locked in the trunk of his car. An elderly Dayton couple was found beaten and gagged in their home after the fugitives stole their car. Another Dayton couple reported to police that Coleman and Brown robbed them.
The trip from Tamika Turks’ murder to the crimes in Indianapolis took less than a month, with the pair committing felonies on the average of crime every other day. In all, the murderous 53-day rampage – from the time Coleman raped and murdered the 9-year-old in Kenosha, Wis., to the time they were arrested in Illinois -- resulted in a slew of felonies: eight homicides, as many as seven rapes, three kidnappings and 14 armed robberies.
Capture
Some time after the murders of the Temples and Scott, Coleman and Brown returned to the Waukegan area. Their case had inspired a great deal of notoriety across the country and Coleman had recently been named as a “special addition” the FBI’s 10 Most Wanted list.
In becoming a special addition, Coleman joined such notable felons as H. Rap Brown and Martin Luther King’s murderer, James Earl Ray.
Coleman’s family aside, they had few friends left after their spree and it wasn’t surprising that when an acquaintance of Coleman’s saw the pair walking near Evanston, Ill., he would turn them in. Authorities had been watching Evanston closely because of Coleman’s known associates there and the fact that the duo had rented an apartment in Evanston prior to fleeing to Gary.
Knowing that there were few criminals as desperate as Coleman and Brown, authorities were cautious in making the arrest.
Once police pinpointed their location – the pair was spotted by undercover officers in a local park – state, local and federal authorities began to converge on the couple.
Shortly before noon on July 20, 1984 Coleman and Brown were watching a pick-up basketball game from the bleachers at Mason Park on the west side of Evanston as officers began to approach.
Coolly, as if he hadn’t a care in the world, Coleman began walking away as plainclothes and uniformed cops neared. Wearing a torn yellow shirt and sporting a short haircut unlike the jheri-curl ‘do he wore in published photos, Coleman surrendered peacefully when confronted. “You got the wrong man,” he told arresting officers. He provided two aliases and Brown identified herself as “Denise Johnson.”
She was carrying a loaded revolver and Coleman had a long knife hidden in his boot, but neither went for their weapon.
“They looked like they did on TV,” said an 11-year-old who witnessed the arrest. “The capture was quick and easy.”
Investigation
Although there were some holes in the authorities’ investigation, it was clear that they had been expecting the two-person crime wave to return to Evanston. Neighbors in the area said they had heard for three weeks that Coleman and Brown would eventually turn up there.
The mood of the neighbors was as jubilant as that of police who clearly basked under the media spotlight. “There was a community awareness about him,” said one neighbor. “He wasn’t going to be able to come in here and snatch anybody. We were waiting for him.”
Residents of the Mason Park area told the media that Coleman looked tired and emaciated when arrested and they speculated that the lethal duo had “just run out of steam.”
Law enforcement officials thought along similar lines with one officer wondering if they had unconsciously wanted to do so: Coleman had never worried about leaving fingerprints at his crime scenes, and FBI agents said he was so lackadaisical it was almost as if he was trying to leave a calling card.
Those same fingerprints would eventually do in Alton Coleman. Despite his protests that officials had the wrong man, Evanston police were able to positively identify the man arrested in Mason Park as the man who left fingerprints at crime scenes in Wisconsin, Illinois, Indiana, Ohio, Michigan and Kentucky. Fingerprints on file with the FBI conclusively proved that the suspects in custody were Coleman and Brown.
Brown's Confession
With Coleman and Brown in custody, the problem fell to state and federal officials to untangle the slew of accusations against the couple and to decide which cases to prosecute. It was clear from the outset that the most punitive states would have first shot at the pair.
That meant capital crimes committed in Michigan and Wisconsin, which have no death penalty, would be tried last – if at all. “We want him first,” said Lake County DA Fred Foreman. “I’ve been in court with this man before and I want to bring him back.”
Brown and Coleman were separated by police and Debra, easily the most wanted woman in the country, was advised of her constitutional rights. She immediately invoked her right to remain silent and asked to speak to an attorney.
In the Evanston police station, the FBI agent who administered the Miranda warning continued to ask Brown questions about her identity – things like her name, age, birth date, and address, according to court documents. An Evanston detective questioned Brown as well, seeking clues to an attack in his jurisdiction for which the pair was suspected.
When the time came to transport Brown to the federal lockup, she spoke with agents on the trip to Chicago. Arriving at the federal building, she was once again advised of her rights and she once again refused to sign a waiver. She did, however, agree to talk to officers as long as she could stop when she wanted to.
Over the next two and a half hours, Brown discussed the crime spree in detail, in effect confessing to many of the crimes committed during the brief, but violent odyssey across the upper Midwest.
When she finished, she once again asked to speak with an attorney. No further inquiry was made until after Brown spoke to a lawyer.
During trial, Brown’s attorney protested that her Fifth Amendment right – the right against self-incrimination – was violated because authorities continued to interrogate after she had asked for counsel.
The trial court found that the Evanston detective did violate her rights and the evidence from his questioning was ruled inadmissible.
However, the confession given to federal authorities in Chicago was used in the trial and with it conviction was easily obtained.
Brown was sentenced to die for the murder of Tamika Turks. Later, Brown was sentenced to die for the Cincinnati murders, but she continued to be held on Indiana’s death row.
Coleman was convicted of the same murders and also sentenced to die. In January 1991 the governor of Ohio commuted Brown’s death sentence, saying she was retarded and “dominated by” Coleman. She is now serving two life sentences in Ohio for her crimes there. However, Indiana is not finished with her.
It took almost seven years, but in August 1991 the Indiana Court of Appeals ruled that the trial court had not erred by allowing the confession into evidence. The conviction and death sentence would stand.
The appeals court found that despite her repeated attempts to speak to an attorney, the confession was separated by “space, time and subject matter” from her first request for counsel that it was proper. Brown willfully gave the confession, the court noted, after being advised of her rights.
Interestingly, it was Brown’s conversations with authorities while she was being transported to federal custody that created the loophole which could result in her execution. She asked questions like “where am I going?” and “what am I charged with?”
Criminal defense attorneys fumed at the court’s decision, with one saying to the Indianapolis Star that the Fifth Amendment was being “squeezed to death.” “If you ask anything, you create an opening the state can drive a truck through,” said Daniel L. Toomey, who argued Brown’s case before the Court of Appeals. Today, Debra Brown, the only woman on Indiana’s Death Row, is serving out her sentences in Ohio. Whether or not she will ever see the executioner in the Hoosier State remains up in the air.
Punishment
In August 2000, ruling in a Virginia capital murder case, the U.S. Supreme Court said a murder defendant is entitled to constitutionally adequate legal representation. Coleman's attorneys immediately filed for relief under the high court's ruling and the Court ordered the Indiana Supreme Court to reconsider Coleman's death sentence.
Coleman alleged that during the sentencing phase of his trial his counsel was inadequate and did not bring up mitigating factors that might have spared Coleman from a trip to the electric chair. Alton suffered from a troubled childhood, a personality disorder and brain dysfunction, attorneys said.
The Indiana high court had already upheld his conviction and sentence on direct appeal.
"Given these aggravating circumstances, even had his counsel presented the evidence of Coleman's impoverishment and abuse, we see little likelihood the jury recommendation or the trial judge's sentence would have been different," wrote the Chief Justice of the Indiana Supreme Court.
Even if the state of Indiana spares Alton Coleman, there are any number of prosecutors who are still awaiting a crack at him. The chances of Coleman, or for that matter, Brown, ever seeing the outside of a prison cell are slim. If Indiana takes a pass on Coleman, then Ohio wants its turn, and if the Buckeye State spares his life, then it's on to Kentucky.
Alton Coleman was executed by lethal injection at the Southern Ohio Correctional Facility near Lucasville at 10 a.m. Friday, April 26, 2002. He was 46 years old.
He spent his last days fighting tenaciously for his life, but appeals that went all the way to the U.S. Supreme Court were unsuccessful. Coleman claimed ineffective counsel and that the prohibition against cruel or unusual punishment would be violated by having his execution broadcast over closed-circuit television.
The spree killer also charged that his jury was racially biased.
Relatives of Coleman's victims in Illinois and Indiana were able to watch the death sentence being carried out via a secured television link, but no recording was made of the event.
Coleman was executed for the beating death of Marlene Walters, 44, of Norwood, Ohio on July 13, 1984. Harry Walters, the victim's husband, and two of the couple's sons-in-law observed the execution inside the Death House.
His execution, the third since Ohio reinstated the death penalty, was well-covered by media, with the Department of Rehabilitation and Corrections reporting that 43 news outlets had applied for credentials, including TV stations, and newspapers in each state where Coleman and Debra Brown killed.
He ordered a huge last meal: filet mignon with sauteed mushrooms, fried chicken breasts, corn bread, biscuits and brown gravy, french fries, broccoli with cheese, salad with french dressing, onion rings, collard greens, sweet potato pie with whipped cream, butter pecan ice cream and a cherry Coke.
Six Thousand Days
Alton Coleman spent more than 6,000 days on death row in Ohio's Mansfield Correctional Institution and used nearly every means available to save his life.
During his more than 16 years as a condemned prisoner, Coleman was described by prison officials as a model inmate who enjoyed the media attention his crime spree and status as one of the first Ohio inmates in decades to realistically face the executioner. He particularly enjoyed speaking to female reporters, and often tried to use his "celebrity" status to curry favors such as girlie magazines and money for the commissary from those who sought to interview him.
The appeals process for capital crimes is lengthy, even when the condemned inmate forgoes his or her right of appeal. Under Ohio law, the first review of a conviction with a death penalty specification is a "direct appeal" that examines the trial record to ensure there were no errors leading to an incorrect verdict and sentence. This direct appeal involves a review by the trial court and the state Supreme Court. Depending on the date of the conviction, as was the case for Coleman, an intermediate state appeals court also reviews a case on direct appeal.
Coleman's direct appeal began shortly after his 1985 conviction, but was not concluded until September 1989.
Alton Coleman's next appeal was a "post-conviction" review, which looks at the case to determine if any errors outside the trial record resulted in a violation of his state or federal Constitutional rights or to an incorrect verdict and sentence. His post-conviction review motion was filed in September 1990 with the trial court in Hamilton County, Ohio. The Ohio Supreme Court rejected his post-conviction appeal more than three years later.
Ohio capital defendants are given the opportunity for a third state appeal, a so-called "Murnahan Appeal," named after the inmate who brought the first action of this type. In a Murnahan Appeal, the inmate challenges the effectiveness of the lawyers who handled the previous state appellate actions. Effectiveness of trial counsel is examined in the post-conviction review.
Coleman's Murnahan Appeal was rejected six months after it was filed, on August 3, 1994 -- some 10 years after he was first indicted for the crimes for which he was convicted.
Having run out of state appeals, Coleman turned to the federal judiciary for relief. He filed a habeas corpus action -- a claim alleging that his federal Constitutional rights had been violated -- in December 1994 that the U.S. District Court in Cincinnati rejected in February 1998.
The 6th Circuit Court of Appeals received Coleman's notice of appeal of the lower court ruling in May 1998 and for the next two years, the state and the prisoner filed briefs with the appellate court. On December 5, 2000, more than 15 years after his conviction, the two sides squared off in oral arguments before a three-judge panel. Those judges rejected Coleman's habeas petition in March 2001.
On October 15, 2001 the United States Supreme Court denied Coleman's request to review the lower federal court rulings. The way was clear for the Ohio Supreme Court to set an execution date, which it did, choosing April 26, 2002.
Coleman was not out of procedural means to escape execution, however. Once the high court sets an execution date, the state clemency process begins. During his clemency hearing before the Ohio Parole Board -- which can recommend clemency to the Governor -- Coleman's attorneys submitted an apology of sorts from the killer and tried to convince the board that Alton was mentally incompetent.
Their pleas were rejected, and the Parole Board did not recommend that Governor Bob Taft grant Coleman clemency.
When Taft announced that he would not spare the killer, Coleman quickly filed suit in federal court, alleging that the state's clemency process was flawed. That suit was handily rejected by both the district and appeals courts.
In the days leading up to April 26, Coleman's attorneys repeatedly petitioned the U.S. Supreme Court with various arguments as to why Coleman should not die. In the last two weeks of his life, Coleman sent six unsuccessful petitions to the High Court, all of which were rejected without comment.
That Court, like so many others, saw no reason why Alton Coleman, who killed so many people without a second thought, should be allowed to live.
Their thoughts were perhaps best summed up by Hamilton County Common Pleas Judge Rich Niehaus, who sentenced Coleman to death.
"I sentenced him and knowing this day has come, well, I got a queasy feeling, " Niehaus said on the day Coleman paid for his crimes. "But if there was anyone who is Exhibit 1 in an argument for the death penalty, it was Alton Coleman."
Unfinished Business
Alton Coleman reportedly spent a fitful night in the death house at the Southern Ohio Correctional Facility in Lucasville prior to his execution. Although death row is located in Mansfield, condemned prisoners are taken to Lucasville for execution of their sentence.
He ate a hearty "special meal" (Ohio convicts don't have a "last meal" because they are served breakfast the morning of the execution), but slept poorly, officials who were present said. The morning of his execution, he had a few bites of toast.
He had been baptized two days earlier by a Dallas-based televangelist, and had said goodbye to his family a week prior to his execution. It was their first visit to him in years and they could not attend the execution because "they could not get a ride," the spokeswoman for the Ohio Department of Rehabilitation and Correction told the media.
The observation room overlooking the execution chamber in Lucasville holds 12 people, and an accordion door separates the convict's witnesses from those representing the victims. Alton invited a spiritual advisor and his legal team. The number of witnesses representing victims presented a logistical challenge to prison officials who finally had to obtain special permission from the Ohio Supreme Court to set up closed-circuit television for the overflow crowd of 18 people (not including media witnesses) who came to watch Coleman die.
In typical fashion, Alton claimed the closed-circuit TV violated his civil rights and sought to block the move. The Ohio Supreme Court rejected that argument.
At shortly before 10 a.m., wearing a "non-denominational" prayer shawl with crosses and Stars of David over his prison blues, Alton Coleman walked into the death chamber and quietly laid himself on the gurney. He remained still as the guards fastened restraints on him and attached the lines that would contain the three chemicals to a shunt already in place in his arm.
He looked over at the witness room and appeared to say something, but it was impossible to hear him through the glass.
A prison official asked if he had any final words, he shook his head and then the executioner pushed the button that would begin the execution process.
Although just three chemicals are used to execute a prisoner, one to induce unconsciousness, another to stop breathing and a third to stop the heart, eight syringes, operated automatically once the button is pushed are required. It often takes two or three very long minutes for all the syringes to empty.
As the drugs began flowing, Alton Coleman began reciting the 23rd Psalm. By the time he reached "he leadeth me beside the still waters," the sodium pentothal began to take effect and Coleman lost consciousness.
He was pronounced death at 10:13 a.m. EST.
Some of the survivors of Coleman's victims considered their work just half finished.
The grandmother of 7-year-old murder victim Tamika Turks of Gary, Ind., said survivors won't know peace until Coleman's accomplice, Debra Brown, is put to death by the state of Indiana.
"One chapter has been closed, but there's another chapter: Debra Brown," she said. "Until that's done, there can be no peace. (But) we'll never be the same because what they took from us, they cannot give back to us."
Bibliography
Chicago Tribune, July 22, 1984, “Police Bask In Glory Of Fugitives' Arrests”
Detroit Free Press:
June 28, 1984, “FBI, Police Search For Slaying Suspect”
July 4, 1984, “Unsuspecting Residents Aid 2 Fugitives, FBI Says”
Friday, July 6, 1984, “Mother Fears 'Some Kind Of Spell'”
July 15, 1984,“Mother Frets For Daughter With Fugitive”
July 15, 1984, “Alton Coleman 'Smooth As Silk': Police Say Fugitive Has Frustrated Justice”
July 21, 1984, “Alton Coleman Held In Illinois: Bond Set At $25 Million Cash”
July 21, 1984, “The Chase For Alton Coleman”
Associated Press
February 13, 1987, “1984 Midwest Crime Spree Continues To Exact Price In Pain”
Indianapolis Star
August 30, 1991, “Murder Spree Conviction Upheld”
November 17, 1991, “Confession From A Killer: Did Police Cross The Line?”
February 3, 1998, “Lone Woman On State's Death Row Is In Ohio”
April 25, 2000, “High Court Edict May Aid State Death Row Inmate: Justices Tell Court To
Restudy Sentence Of Murderer Who Claims He Received Ineffective Legal Counsel.”
TruTV.com
Fantasy Death Row
Next Up: April 26, 2002
Alton Coleman Ohio Conviction: Made Whitey feel sexually inadequate. Also killed a bunch of women. Handicapping Factors Pro:Once made the F.B.I.'s most wanted list so he has a modicum of fame to trade on... Never actually admitted his guilt for what that's worth...
Ohio was all assholes and elbows the last time they tried to kill someone, John Byrd Jr, requiring 4 or 5 death dates before they finally made one stick... It's certainly not a highly tuned killing machine... Con: After the paucity of background on folks being executed here lately it's a relief to find someone whose case is so well documented. That's a great story if you go on and click his picture there.
Unfortunately, this is the rare case where the more attention he recieves the worse his chances get... The Supreme Court has rejected his appeal and refused to stay his date... House Pick: A detective who was on his trail characterized him as the Black Ted Bundy, smooth and disarming and all that.
His schoolmates, on the other hand called him "Pissy" as he was prone to whizzing on himself in class. If you've got your home psychotherapy kits handy you might have some fun with that little nugget. But of the many hats he wore and names he answered to, none is more compelling than this.
He is known as the only man in America with a death sentence in 3 seperate states. So, if you are going by sheer quantity, that makes him the consensus choice for "Baddest Man in America". I guess on the bright side there's 47 other states that don't have any immediate plans to kill him. The Line is a Wise to Ohio: 9 - 5 Dead as Hell
The line is unscientific and is based solely on our research. If you know anything that might affect the odds -for instance you work in the courts or the penal system or, hell, you committed the crime- please contact us here.
Alton Coleman on deck? Serial killer may be next for execution
By Andrew Welsh-Huggins - Cincinnati Enquirer
Thursday, February 21, 2002
COLUMBUS - (AP).- Serial killer Alton Coleman, convicted of slayings in the Midwest in 1984, could be the next inmate scheduled to die in Ohio.
The state asked the Ohio Supreme Court on Feb. 6 to set an execution date for Mr. Coleman, 45, who also faces death sentences in Indiana and Illinois. “We believe that his case is the next one up, but there's no guarantee with the court system and different issues he can raise,” Bret Crow, a spokesman for Attorney General Betty Montgomery, said Wednesday.
The state Tuesday executed John W. Byrd, the third inmate to die since Ohio reinstated the death penalty in 1981 and the first to proclaim his innocence. It was the second execution in eight months, following Jay D. Scott's execution by injection in June.
The Ohio Public Defender's Office said that as many as 10 death row inmates could exhaust their appeals this year.
Most are awaiting a review of their case by the U.S. Supreme Court. Such reviews are very rare, said David Bodiker, the Ohio Public Defender. “The chances of getting one of those things heard is greater than the lottery,” Mr. Bodiker said.
Mr. Coleman's attorney, Dale Baich, would not discuss the likelihood of an execution date. “I don't think it's appropriate to make predictions,” he said Wednesday. “Circumstances in these cases may change, and it doesn't serve the public, the victims or Mr. Coleman to engage in such speculation.”
Mr. Coleman, of Waukegan, Ill., received two death sentences in Ohio. One was for the July 11, 1984, strangulation death of Tonnie Storey, 15, of Over-the-Rhine.
The second was for the July 13, 1984, beating death of Marlene Walters, 44, of Norwood. An execution date could depend on the resolution of conflicting rulings by the same federal court.
A three-judge panel of the 6th U.S. Circuit Court of Appeals threw out Mr. Coleman's death sentence in the Storey case after concluding that his attorneys didn't adequately represent him in a 1985 trial.
The court, however, upheld the conviction. A different three-judge panel of the court had already upheld Mr. Coleman's death sentence for Mrs. Walters' death.
Mr. Coleman's attorneys have asked the U.S. Supreme Court to review the Walters ruling. They argue that because the same two attorneys represented Mr. Coleman in both Ohio cases, it is inconsistent that his sentence be overturned in one case and upheld in the other. “It would be very unfair to execute someone when two different panels of the same court reach conflicting results,” Mr. Baich said.
Oppose the Execution of Alton Coleman!
Ohio is preparing to execute Alton Coleman, a man whose trial was fundamentally unfair. During the trial, not only did the prosecution use racially discriminatory tactics to exclude African-Americans from the jury, but the jury was never told about Mr. Coleman's mental illness.
Whether you support or oppose capital punishment, there is mounting evidence that the system is broken. A review of national death penalty judgments over a 23-year period has found a national error rate of 68 percent. Executions should not take place when people are being sentenced unfairly.
Urge Governor Taft to Commute Alton Coleman's Death Sentence to Life in Prison!
The prosecutors who tried Mr. Coleman adhered to the racially discriminatory jury selection practices. In Alton Coleman's trial, prosecutors used 9 of their 12 jury strikes to eliminate qualified African Americans from the jury.
The prosecution has never been forced to explain why these otherwise qualified jurors were removed. This pattern of racial discrimination in jury selection is highly suspect and completely unacceptable when someone's life is on the line.
People who suffer from serious mental illness must not be subject to the death penalty. As vulnerable members of society, the mentally ill are tremendously over-represented in Ohio executions.
Alton Coleman's impending execution is part of this disturbing trend. During his trial, the jury never heard about Coleman's mental illness or his childhood abuse. Of the three men executed in Ohio since 1976, two have had serious mental illness. Mr. Coleman's execution would make that figure three out of four.
Judge Throws Out Coleman's Lawsuit Over Televised Execution
By Andrew Welsh-Huggins - Chicago Tribune
April 23, 2002
COLUMBUS, Ohio - (AP) A judge today threw out a lawsuit that sought to prevent the state from televising the scheduled execution of Waukegan's Alton Coleman to relatives of the five victims he was convicted of killing.
Judge Beverly Pfeiffer of Franklin County Common Pleas Court said Coleman's lawyers presented no evidence to justify their claim that broadcasting the execution on closed-circuit television would violate his rights.
Because there are so many witnesses from victims' families, the state plans to let them watch Coleman's execution from a closed-circuit television in a room of the prison where he will be executed.
Coleman's lawyers argued that state law prohibits broadcasting equipment at executions, but Pfeiffer said the law referred only to recording an execution. "It's a closed-circuit transmission," she said. "It goes from one room to another. There is no capability for any recording to be made."
Coleman's lawyers said they were considering appealing. "The judge has sanctioned Mr. Coleman's execution to being a spectator sport," said Lori Leon, an attorney representing Coleman.
Coleman is scheduled to die Friday by injection for the beating death of a woman in 1984. He also has been convicted of four murders that occurred during a multistate crime spree in 1984 and has been sentenced to death in Indiana and Illinois.
He is the only current inmate to face death sentences in three states, according to the Washington, D.C.-based Death Penalty Information Center.
On Monday, Coleman asked the U.S. Supreme Court to hear his claim that prosecutors chose a racially biased jury 17 years ago. He also asked Justice John Paul Stevens, who oversees death penalty appeals in Ohio, to delay the execution while the court considers the appeal. "This is an important constitutional question and it should be reviewed in due course, not under the press of an impending execution," Dale Baich, one of Coleman's attorneys, said in a statement Monday.
On April 16, the U.S. Supreme Court declined to hear an appeal on a technical procedure and refused to postpone Coleman's execution. Coleman, 46, has accused prosecutors of racism during jury selection in his 1985 trial for the beating death of Marlene Walters, 44, in the Cincinnati suburb of Norwood, on July 13, 1984.
Coleman's lawyers claimed that then-Hamilton County Prosecutor Arthur Ney's team improperly removed nine of 12 black jurors from the trial. Coleman is black.
On Friday, the Ohio Supreme Court unanimously ruled that Coleman's request came too late. It should have been raised on the direct appeal of his conviction, rather than after his appeals ran out, the court said.
Joe Case, a spokesman for Attorney General Betty Montgomery, said Monday that Montgomery agrees with the Ohio Supreme Court that the racism appeal is too late. Montgomery plans a response to the latest filing, Case said.
Alton Coleman: His time to die
By Randy Ludlow, Post Ohio Bureau - Cincinnati Post
April 23, 2002
As Alton Coleman pedaled into blue-collar Norwood, not even 24 hours had lapsed since he had earned the rare distinction of becoming an 11th member of the FBI's ''Most Wanted'' list.
With six weeks, 600 miles and six bodies behind him, the serial killer arrived having perfected his predatory pattern during his murderous migration across the Midwest.
The horror about to visit 4118 Floral Ave. on the muggy morning of July 13, 1984, was typical Coleman. He would hide behind a facade of charm to win over his unsuspecting victims and then strike.
Dropped off in Cincinnati five days earlier by a minister they befriended, Coleman and his companion, Debra Denise Brown, figured it was time to move on before they were betrayed by what they had left behind in Walnut Hills.
The near-nude and strangled body of 15-year-old Tonnie Storey - ''I hate niggers. Death'' scratched into a wall and outlined in lipstick above her - still lay undiscovered in a building on May Street.
Coleman needed cash, a change of clothes and a car to continue life on the run. And he had no qualms about killing to obtain them. Noticing a camping trailer for sale outside the home of Harry and Marlene Walters around 11 a.m., Coleman and Ms. Brown sized up the opportunity and parked their bikes.
Again employing the convincing and friendly manner of a con man, the 28-year-old Coleman worked to earn the trust of the middle-age white couple, to disarm them of suspicion, as they haggled over a price for the camper.
A deal struck with the ''very polite'' man, the Walterses invited the couple inside their home to sip lemonade. As Harry Walters sat on a couch talking with his guest about the trailer title, Coleman picked up a heavy wooden candlestick and expressed admiration for the piece.
It was the last thing Walters would recall. ''I've seen brutal homicides, but this is it. These are No. 1. They were cruel, savage,'' Norwood Detective Capt. Thomas Williams said amid the manhunt for Coleman and Ms. Brown and the Walters' stolen red Plymouth Valiant.
Sherri Walters, 19, found her parents at the bottom of the blood-spattered basement steps when she arrived home at 3:45 p.m. Her mother was dead, her father barely alive.
A bloody sheet lay over the head of Mrs. Walters, 44, a mother of three and Sunday school teacher and librarian at nearby Grace United Methodist Church. Struck 20 to 25 times with a soft drink bottle, magazine rack and other items, her skull had been pulverized, her face and scalp raked a dozen times with a pair of Vise Grips.
Walters, then 45, lay in a coma. The candlestick had driven a sliver of skull into his brain. He had been stabbed in the abdomen and a rope cinched around his neck. Both he and his wife had their hands and feet bound.
Harry Walters saw neither the death nor the funeral of his wife of 26 years. But, he will witness the death of her killer to confirm the receipt of justice and closure he says should have been his a decade ago. ''On April 5, 1958, Marlene and I were married, exchanging the vows 'until death do us part.' We were parted by murder,'' Walters says. ''Execution is the solution. The Bible tells me so.'' Lucasville will be a busy place Friday as 17 witnesses arrive from three states to watch Coleman die.
Nearly 18 years after terrorizing the Midwest during a six- state spree of eight murders, seven kidnappings, four rapes and numerous assaults, home invasions and other crimes, Coleman's number is up.
Absent an unlikely court stay or grant of clemency, Coleman, 46, of Waukegan, Ill., will die by lethal injection at 10 a.m. Friday at the Southern Ohio Correctional Facility in Ohio's fourth execution since early 1999.
Ohio in effect also will carry out the death sentences imposed on Coleman in Indiana and Illinois for the murders of 7- and 9-year-old girls as it executes the only man in the nation condemned in three states. Walters, his son Daniel and son-in-law Scott Lillard will see the execution in person from behind a death chamber window.
In another room, at least 14 more witnesses - whose daughters, sisters, brothers, mothers and nieces or nephews were killed by Coleman - will watch the execution live on closed-circuit TV.
Among those present will be Harry Storey, the father of Tonnie Storey, and her aunt, Paulette Anderson. Coleman and Mrs. Brown both were sentenced to death for the murder of the ''B'' student at Bloom Junior High School.
However, Ms. Brown's sentence was commuted to life imprisonment by Gov. Richard Celeste in 1991 and a federal appeals court last year found errors in the Storey trial and ordered Coleman resentenced. ''This is someone who deserves to meet his maker. He is one of the most vicious, cold-blooded serial killers in the history of the Midwest,'' says Hamilton County Prosecutor Mike Allen.
Whether it was helping a woman struggling with a bas ket of laundry, expressing a seemingly sincere interest in religion or politely inquiring about a camper for sale, Coleman was a deadly chameleon. Speaking of the murder of Mrs. Walters, Ohio Assistant Attorney General Jim Canepa observed: ''He smooth-talked his way into their house. He's convincing. And, he convinced all of these people into their graves.''
A rarity as a black serial killer, Coleman preferred to victimize African Americans - with Marlene Walters his only white murder victim - and once said he was forced by blacks to kill other members of his race.
By the time he killed 9-year-old Vernita Wheat in Waukegan, Ill., on May 29, 1994, Coleman was well known to Chicago-area police as a sexual predator.
While only once convicted and sent to prison (where he forced three other inmates to have sex), his rap sheet contained four arrests for rape. He had even been accused by a half-sister of sexually molesting his 9-year-old niece.
A prison psychiatric profile found Coleman, a ninth grade dropout with an IQ on the lower edge of normal, to be ''a pansexual willing to have intercourse with any object, women, men, children, whatever.''
Coleman reportedly was thrown into a garbage can by his mentally ill, prostitute mother as an infant. ''Unfortunately, someone heard my cries and rescued me before death could take me,'' Coleman recently wrote. ''In my life, I had fear, lots of pain and many tears.''
The boy was raised mostly by his grandmother, who oper ated a brothel and gambling house. As a child in a whorehouse, Coleman was physically and sexually abused and exposed to beastiality, pedophilia and group sex whose participants included his mother and grandmother. His grandmother also purportedly practiced voodoo and forced the young boy to kill animals and harvest their body parts for use in her potions.
Coleman's habit of soiling his clothes earned him the nickname of ''Pissy'' in the Market Street ghetto in Waukegan. ''Alton walked around all day in his own waste. He had no clean clothes,'' said the Rev. Robert Evans, a neighbor. ''He had a very profound, tragic life as a youngster. He has to be responsible for these crimes, but given the circumstances presented, his life should be spared,'' Rev. Evans said.
Even as his execution nears, Coleman and Ms. Brown stick to their story - which prosecutors dismiss as a fable - that she killed Mrs. Walters. ''I will not deny that I have destroyed lives, caused pain, grief and suffering beyond comprehension in 1984, but I did not kill Mrs. Marlene Walters or even knew she had died,'' Coleman wrote the Ohio Parole Board.
National Coalition to Abolish the Death Penalty
Ohio Execution Alert: Alton Coleman
Scheduled Execution Date and Time: 4/26/02 10:00 AM EST
Alton Coleman, a black man on death row in Ohio, is scheduled to be executed on April 26th for the murder of Marlene Walters. Coleman has been on death row since 1986, when he was convicted in two separate death sentences.
Oddly, the same court has upheld Coleman’s other death sentence, for which he is now set to be executed. In spite of the overwhelming collection of mitigating circumstances, which the same court has acknowledged, Coleman has run into a dead-end with his appeals. Please petition the Governor of Ohio to overturn Alton Coleman’s second death sentence.
The Scratchin' Post Crime Archives
Alton Coleman & Debra Brown ( Kills: 8)
Alton Coleman, a black man, thought other blacks were forcing him to kill members of his race. He was diagnosed by a prison psychiatrist as having pansexual propensities, that is, willingness "to have intercourse with any object, women, men, children, whatever."
In the summer of 1984, he teamed up with twenty-one year old Debra Brown for a brutal rampage across the midwest. They were arrested in Evanston, Illinois after a crime spree in which they committed a new act of violence each day. Alton was sentenced to death.
Dave's Serial Killer Archives
Alton Coleman was born in November 1955, in a Waukegan, Illinois ghetto neighborhood, the bastard middle child of three boy's and two girls. Alton's mother first gave birth at the young age of fourteen. According to police records, she was a known prostitute.
Alton's mother also showed no interest in him when he was born; hence, he was shoved off onto to her mother, Alma Hosea. "She threw him away, just like you'd throw away garbage," Alma later told a Chicago Tribune reporter.
In school, Alton was nicknamed "pissy" by his classmates because he seemed to have a tendency to wet his pants quite often. He eventually dropped out of grade school and began working part time at a kitchen in a local veterans hospital.
As he grew up, he acquired a new nickname on the street: "Big Al". He was known to carry a knife and a hair-trigger temper. He often times ran with gangs. This even more so helped to cultivate his nasty disposition. He quickly had numerous arrests under his belt. Most dealing with sexual related crimes.
In 1973, Alton was charged with the robbery, kidnapping and rape of an unidentified elderly Waukegan woman. He quickly plea-bargained and received a two-to-six year sentence for robbery. He was then placed in Joliet State Prison.
While serving time in Joliet, Alton was accused numerous times of molesting other inmates. A psychiatric profile identified him not as BI-sexual but as, "pansexual, willing to have intercourse with any object-- man, woman, child.”
Once free on parole, Alton wasted no time getting arrested again for rape on two separate occasions in the early 1980's. Although both times he was acquitted when the jury believed his victims had consented to the sex.
Alton soon met a young teenage girl and was quickly married. However, after only a six-month stint, his new bride left him and arranged for police protection while she moved her belongings out. She later stated that she could no longer take his fascinations with bondage, young girls, and violent sex.
In the summer of 1983, Alton was charged with taking indecent liberties with a child, his own niece. However, the charges were quickly dropped when the child's mother changed her story and claimed that the accusations were false. Apparently terrified of Coleman, she changed her mind.
Soon after the summer incident, Alton was accused of raping a fourteen-year-old Waukegan girl at knifepoint. He also became a suspect in the rape and murder of fifteen-year-old Gina Frazier.
Reduction of bail in the Waukegan case put him on the streets to launch a homicidal rampage almost beyond belief, and earn him a spot on the FBI's 'Most Wanted' list.
Alton quickly jumped bail, and fled with his new girlfriend, twenty-one-year-old Debra Denise Brown, a high school drop out and natural follower, he had met in a Waukegan bar. The pair eventually settled down in Gary, Indiana.
On May 29, 1984, nine-year-old Vernita Wheat, disappeared after her mother let her accompany one "Robert Knight" to Waukegan from her Kenosha, WI, home to retrieve a stereo system. A photo lineup quickly identified Alton Coleman as "Robert Knight".
On June 18, 1984, Alton and Debra abducted seven-year-old Tamika Turks, and her nine-year-old aunt, while walking near their home in Gary, IN. Coleman and Brown took the two young children to a secluded wooded area. Alton placed his hand over Tamika's mouth as she started to struggle.
Angered, he began to viciously stomp her face and chest with his feet. When he finally tired of this, he raped and strangled her. Alton then took Tamika's aunt and brutally beat and raped her while Brown held her down. Afterwards he strangled her and left her for dead.
However, unbeknownst to Brown and Coleman the young girl had only blacked-out, when she awakened she stumbled out of the woods and was discovered by a local man. She was immediately taken to a local hospital where she was treated for her injuries. She was lucky. A search was quickly launched for Tamika.
On June 19, 1984, the body of Tamika Turks was found in a swampy area of woods. The same day the decomposing remains of Vernita Wheat were discovered in Waukegan, in an abandoned building.
During this time, the FBI's Behavioral Science Unit in Quantico Virginia began to prepare a profile on Alton Coleman, to assist police in their search. The same day the two children’s bodies were discovered, June 19, twenty-five-year-old Donna Williams, disappeared after last being seen with "a nice couple from Boston".
On June 24, 1984, Coleman & Brown accosted a Detroit woman at knifepoint and demanded that she drive them to Ohio. She amazingly was able to save herself by intentionally smashing into a truck, and fleeing on foot. The couple quickly fled in her damaged vehicle.
On June 27, 1984, the stolen 1976-model car was found abandoned in a southwest Detroit alley.
On June 28, 1984, Coleman & Brown invaded the Dearborn Heights suburban home of sixty-two-year-old Palmer Jones, and his fifty-year-old wife Maggie. They were beaten mercilessly with a club, robbed of $86.00, and their late model automobile was stolen.
On June 30, 1984, Coleman and Brown carjacked two men at gunpoint, throwing one (an invalid) out of the moving vehicle. The other man was fortunate enough to be released.
On July 2, 1984, Another Detroit couple was attacked in their home; this time savagely beaten with a pipe and subjected to an incoherent harangue by Coleman on how blacks were forcing him to kill blacks. Coleman then robbed them of $100.00 and stole their car.
Coleman & Brown then drove to Toledo, where they handcuffed and assaulted another couple in their home and stole their car. Shortly thereafter, Coleman and a Toledo bartender exchanged shots when Coleman tried to abduct one of the bar's patrons.
Around this time in Cincinnati the mother of fifteen-year-old Tonnie Storey, reported her daughter missing. On July 7, 1984, Coleman & Brown spent the night with thirty-year-old Virginia Temple, and her ten-year-old daughter, Rochelle.
The mother and daughter were soon to be raped and murdered. Their bodies later discovered stuffed in a crawlspace.
On July 11, 1984, the decomposing corpse of Donna Williams was discovered. It was soon apparent that she had been strangled to death with a pair of panty hose.
Alton Coleman was now added to the FBI's ten most wanted list. On July 13, 1984, Marlene Walters became the first white victim; she was bludgeoned to death in her Norwood, OH, home. Her husband Harry somehow survived the brutal attack and identified Coleman & Brown as the killers.
On July 16, 1984, forty-five-year-old Oline Carmichael Jr., a Lexington political-science college professor, was walking to his vehicle when the killer couple abducted him.
They drove his car to Dayton, Ohio and then locked him in the trunk. He was found unharmed hours later. Also later that same day, an elderly minister and his wife were found, battered in their Dayton home, they were lucky to be alive.
The minister's stolen station wagon was later recovered at a car wash in Indianapolis, where seventy-seven-year-old Eugene Scott, and his car were now missing.
Police however, soon found him dead in a ditch near Zionsville. His hands had been slashed with a knife, and he had been shot four times in the head with a .38-caliber handgun.
In Waukegan, Coleman's seventy-two-year-old grandmother issued a tape-recorded appeal, "Alton, please, in Jesus' name, for God's sake, give yourself up so you can go and get well," she pleaded, "Please, your killing me. I'm worried to death."
On July 19, 1984, in Cincinnati, the partly nude decomposing corpse of fifteen-year-old Tonnie Storey, was found. She had been raped, brutally stabbed and shot twice in the head.
On July 20, 1984, shortly before noon, the bloody seven-week reign of terror finally came to an end in Evanston, IL. An anonymous tip, lead to the couples arrest in a local park where they were watching a neighborhood basketball game. Police discovered two blood stained knives and a .38-caliber snub-nosed revolver on the couple.
The manhunt was over and authorities in five states suspected the couple of at least eight murders, numerous abductions, sexual assaults, beatings, and thefts involving both local and federal offenses.
It was quickly decided that Ohio authorities should get the first crack at the couple. "We believe prosecution (in Ohio) is most likely to result in the swiftest imposition of the death penalty," U.S. attorney Dan Webb stated. Before the trials began the couple signed legal documents entering them into a common-law marriage.
During separate trials in Cincinnati, both Coleman and Brown were convicted of first-degree murder in the death of Mrs. Walters. Coleman was sentenced to die in Ohio's electric chair, and Debra was sentenced to life in prison.
The jury was shocked during the penalty phase when Brown took the stand and insisted that she alone had killed Mrs. Walters. Her own trial had already been concluded. "I killed the bitch and I don't give a dam. I had fun out of it," Debra boasted, in what seemed to be a desperate plea to save her lovers life. She also claimed to have murdered several other people during the couple's crime spree, and said that she did not "give a dam about anyone" except Coleman. Regardless, her lover was to her dismay, sentenced to death.
For the murder of Tonnie Storey, the killer couple was convicted and sentenced to death. During the trial Coleman boasted that if he had not been so mentally exhausted when arrested that he would have easily killed the officers.
The next trial took place in Indiana where the couple was both sentenced to death for the murder of Tamika Turk.
Back in Waukegan, Coleman was sentenced to death by lethal injection for the murder of Vernita Wheat. During the trial Coleman told the jurors that he did not want mercy, "I'm a dead man. I'm dead already. You are talking to a dead man, not a live man."
Prosecutors believe that Coleman was the only man in the United States under four separate death sentences at the time. There are no plans to prosecute Coleman or Brown on the remaining deaths in the Midwest murder spree.
In June of 1997, Debra Brown, residing at the Ohio Reformatory for Women in Marysville, Ohio, launched a self serving campaign to try and overturn her death sentence in Indiana where she is the only female among 51 people under active death sentences. Alton Coleman remains on death row in Ohio at the Mansfield Correctional Institution.
18 years later, circle of death will close with killer's execution
April 17, 2002
Three months after her 9-year-old daughter's body was found strangled in an abandoned house, Juanita Wheat packaged up her baby's clothes, her toys, stuffed animals and her books and donated them to charity. "I just couldn't look at them anymore," Wheat said. "There were too many memories."
Each time she looked at Vernita's possessions, she would think about the happy girl who loved to hold a pencil like a microphone and sing "Let's Hear it for the Boy." She would think about the straight-A student who loved to read comic books and fuss over her little brother. Juanita Wheat would think about the last time she saw her only daughter, and she would think about the nice man who took the girl to his Kenosha apartment to pick up stereo speakers he planned to give Juanita Wheat as a belated Mother's Day present. It's been almost 18 years since Coleman and his girlfriend, Debra Brown, left a trail of carnage in the Midwest.
In the summer of 1984, the couple were linked to 8 murders and more than a dozen robberies, rapes, abductions and beatings in 6 states - ranging from a college professor who was abducted in Kentucky and left unharmed in his car trunk to an Ohio woman who was beaten to death in her home.
The multistate crime spree landed Coleman on the FBI's Ten Most Wanted list as frantic police found more bodies and checked out hundreds of sightings as the couple moved around the Midwest.
Coleman, now 46, was sentenced to death in Illinois for Vernita Wheat's homicide; in Ohio for the murders of Tonnie Storey, 15, of Cincinnati and Marlene Walters, 44, of Norwood, Ohio; and in Indiana for the slaying of Tamika Turks, 7, of Gary, Ind.
One of about 3,700 people on death row in the United States, Coleman is the only person facing death sentences in three states, said Brenda Bowser, communications director for the Death Penalty Information Center.
Brown was not a suspect in Vernita Wheat's death. But she was convicted in Ohio of Storey's murder and sentenced to death. Her death sentence was later commuted to life in prison.
On the day Vernita Wheat's body was found, the body of Tamika Turks turned up. A 9-year-old girl abducted with Tamika testified that Coleman sexually assaulted them and then stomped on Tamika's head and chest, killing her. Soon, other bodies were discovered.
Coleman's rampage started in this community of 88,000, only a few miles from the Illinois border. Barring a last-minute reprieve, Coleman's life will end at 10 a.m. April 26 in a death row chamber in Ohio. By the time Coleman and Brown were arrested while sitting on an Evanston, Ill., park bench, 8 people were dead, including Vernita Wheat, who disappeared on May 29, 1984.
Her decomposed body was found in the bathroom of an abandoned house in Waukegan on June 19,trussed with nine-feet of television cable and her hands bound. Coleman's fingerprint was found on a door leading into the bathroom, and he was seen with Vernita in Waukegan, according to testimony at his trial in 1987 where a jury deliberated for 3 hours before convicting him of killing the Kenosha girl.
Although the clothing matched the shirt and pants Vernita was wearing when she left with Coleman, authorities wanted to use dental records to determine her identity. But Vernita had perfect teeth and had never visited a dentist.
So police ended up matching fingerprints from the 3rd-grader's schoolbooks to the body.
'Oh no, oh no' Willie Mae Peebles remembers going to the Waukegan police station with Juanita Wheat, her neighbor. She recalled getting the awful news about the little girl she called by her nickname, Tracy, who often came to her house to snack on sandwiches and watermelon. "The police said it didn't look good. We sat in a room and they got Juanita and took her somewhere to tell her Tracy was dead," Peebles said. "She came back and said, 'Oh no, oh no.'" Juanita Wheat figured the police would tell her "they had found her and she was OK." "I couldn't believe he'd kill her. I still can't believe he'd do that," Juanita Wheat said in an interview last week in her Kenosha apartment.
Coleman met Wheat as she stood outside her apartment hanging her laundry to dry. He said his name was Michael Knight and that he lived nearby. He helped her with her laundry and a few days later offered to take Vernita and her 5-year-old brother Brandon to a carnival.
Shortly after returning from the carnival, he asked Juanita Wheat if he could take the kids to his apartment to pick up stereo speakers. She said Brandon was too little to go since it was getting late but that Vernita could help as long as she returned soon because it was a school night.
Brandon Wheat said there's no doubt in his mind that he would have been killed had he gone with Coleman. "I really think he did want to do something bad with her," he said.
Out of sight - Aside from the victims who survived the attacks and the families of the victims who didn't, the memory of Coleman and Brown has dimmed. "He's been gone for so long, he's kind of been out of sight, out of mind," Waukegan Deputy Police Chief Bill Biang said.
But during the summer of 1984, Coleman and Brown were big news as authorities in several states published their pictures and warned residents to lock their doors. Coleman was smooth and likable, said Kenosha police Lt. Doug Stein, who was a detective when Juanita Wheat reported her daughter missing. "He was a serial killer, obviously. He was a personable person. If I had to pair him up with somebody, who was that guy who killed all those girls in Florida? Ted Bundy? He reminds me of Ted Bundy," Stein said.
Once Kenosha police realized Vernita Wheat wasn't a runaway but likely a kidnap victim, the investigation quickly focused on Coleman.
Authorities learned Coleman didn't fit the profile of an outwardly scary man, Stein said. "He was the kind of guy who could talk his way in and the type where people would feel comfortable leaving their daughter with him," Stein said. "He was looking for people who were vulnerable who would listen to his spiel."
Coleman never admitted to any of the crimes he was convicted of, though there were plenty of witnesses and physical evidence, said Marc Hansen, a Waukegan police lieutenant at the time of Vernita's homicide. "All he would say is he knew the girl's family in Kenosha," said Hansen, now an investigator in the Lake County state's attorney's office.
Detectives talked to people who saw Vernita in Waukegan with Coleman. The time of her death was pinpointed through insect larvae, and his fingerprint was found on the door leading to the room where her body was found. "This guy is the scum of the earth," Hansen said. "I don't think any of this would have happened in today's world because he was able to, in his previous arrests for rape... intimidate the victims."
Coleman refused a written request for an interview. His public defender, Dale Baich, did not return a phone call seeking comment.
However, Baich faxed a statement from Coleman's brother and 2 sisters, who live in Illinois. "We love our brother. We offer sympathy and prayers to the victims and their families," the family said in the statement. They said that while there's no excuse for Coleman's actions, there's an explanation. "We ask that people understand that our brother is sick. He never received the help or treatment that he needed when he was a baby, a child and a young adult. Instead, he was forgotten and ignored by society," hisfamily said. "Now, because of his actions, society wants to eliminate him."
'Justice will be served' - Juanita Wheat plans to attend the execution. "All I can say is he has to pay for his wrongdoing. Justice will be served," she said. "I'm quite sure he has suffered for this in (prison). But he hasn't suffered enough yet."
For Brandon Wheat, much of his life has been haunted with memories of his beloved sister, who fixed him breakfast, combed his hair, tied his shoes and played with him every day. He, like his mother, wants Coleman to die. "I'm actually looking forward to it happening for the simple fact that he basically took the oxygen that my sister could have had," he said.
Now serving a 10-year prison sentence for robbery and delivery of a controlled substance, Brandon Wheat said his life would have turned out differently if his sister were alive. "If she was around, I know I wouldn't be in this situation I am in right now because we were very close," he said in a phone interview from Kettle Moraine Correctional Institution near Plymouth.
Though he was only 5 when he saw his sister leave with Coleman, the memory is still fresh. "My sister turned around at the door and looked at me and my mom and said 'I love you.' That's the last time I saw her."
(source: Milwaukee Journal Sentinel)
Panel weighs arguments about killer's fate
April 17, 2002
Alton Coleman: born damaged or pure evil? Those were the positions staked out yesterday at a clemency hearing to determine whether Coleman -- the only person under death sentences in three states -- should be spared from execution April 26 in the Southern Ohio Correctional Facility near Lucasville. A decision by the Ohio Parole Board is expected Friday.
Harry Walters of Norwood -- whose wife, Marlene, 44, was killed by Coleman -- made a simple plea. "Execution is the solution,'' Walters said. "When will the system finally have mercy on the victims, families and give them closure?'' "The family asks not for your sympathy or even your compassion,'' said Scott Lillard, Mr. Walters' son-in-law. "We ask for justice.''
Hamilton County Prosecutor Michael K. Allen called Coleman "pure evil,'' a smooth talker who "convinced all those people into their grave. . . . He's a con man. He's trying to con you.''
In support of mercy, Dale Baich, Coleman's federal public defender, argued that he was born with a damaged brain and suffered a brutally abusive childhood, rendering him unable to control his violent actions. "I believe that society has neglected the crimes against Alton, and now they want to exterminate him,'' said the Rev. Robert Evans, a north Chicago Baptist minister who has known Coleman since childhood.
The board will consider the arguments presented during the three-hour hearing in making a clemency recommendation to Gov. Bob Taft.
Under state law, the governor has final life-and-death authority in capital cases. Taft, a death-penalty supporter, has rejected three previous clemency requests; all three men were subsequently executed.
Coleman, 46, of Waukegan, Ill., is to be executed for the July 13, 1984, beating death of Mrs. Walters. Mr. Walters also was beaten. He suffered permanent brain damage and required repeated surgery over a period of more than two years.
Coleman's death sentence for the murder of Tonnie Storey, 15, of Cincinnati, was overturned on appeal. He also has been sentenced to die in Illinois and Indiana.
Coleman's execution would be Ohio's second in 2002, making it the first year since 1963 that the state has had more than one. The peak was 15 in 1949.
Coleman and girlfriend Debra Denise Brown went on a six-state rampage for seven weeks in the summer of 1984, leaving at least eight people dead and 15 others beaten, robbed and scarred for life.
Four of the dead were Ohioans, including Virginia and Rachelle Temple, a mother and daughter who were raped and killed in their Toledo home.
Members of the Temple family attended the clemency hearing yesterday but were not allowed to speak because the charges in the case were dropped in 1987 by Lucas County. However, the family delivered a powerful, silent message, wearing T-shirts with the victims' pictures on them.
Coleman's attorneys said he is "truly sorry'' for Mrs. Walters' death but continued to claim that Brown was the real murderer. "I will not deny that I have destroyed lives, caused pain, grief and suffering beyond comprehension in 1984, but I did not kill Mrs. Marlene Walters or even know she had died,'' Coleman said in a letter delivered to the parole board.
Dr. Thomas Thompson, a neuropsychologist from Las Cruces, N.M., testified that Coleman probably was brain-damaged at birth because his mother, a prostitute, was a drug- user and an alcoholic. He was a "damaged container filled with damaged contents'' because of a childhood in which he was beaten and exposed to bestiality, violence and sexual abuse. "He's never been able to fully participate in anything he's ever done,'' Thompson said. "Except killing,'' interjected Peter Davis, a parole-board member and former state prisoner advocate.
Meanwhile, Coleman's attorneys yesterday filed an appeal with the Ohio Supreme Court claiming that his constitutional rights were violated during his trial when potential minority jurors were unfairly dismissed. Coleman is black. "Nothing but a delay tactic,'' responded Joe Case, spokesman for Attorney General Betty D. Montgomery. "This issue has been reviewed and rejected in federal courts in the past.''
(Source: Columbus Dispatch)
Psychologist to argue for sparing killer
April 16, 2002
Alton Coleman, accused of at least seven murders during a 1984 crime spree, was born with a dysfunctional brain and could not develop into a normal adult because of a childhood filled with abuse, a psychologist said yesterday.
Attorneys for Coleman, 46, were to plead with Gov. Bob Taft to spare his life during a hearing today before the Ohio Parole Board. Coleman, 46, is not allowed to testify at his hearing under board policy.
His attorneys want Taft to reduce Coleman's death sentence to life without parole. Also yesterday, the U.S. Supreme Court declined to hear an appeal on a technical procedure and refused to postpone the April 26 execution.
Coleman of Waukegan, Ill., faces a death sentence for the murder of Marlene Walters, 44, who was strangled July 13, 1984, after being attacked in suburban Cincinnati.
Last year, Coleman was evaluated by Thomas C. Thompson, a neuropsychologist from Las Cruces, N.M., who is to testify at today's hearing. Coleman's brain never fully developed, in part because his mother abused alcohol and other drugs during her pregnancy, Thompson said yesterday.
Courts in the Walters case consistently have ruled that the death sentence for Coleman is appropriate, said Joe Case, spokesman for Attorney General Betty D. Montgomery. The U.S. Supreme Court yesterday refused to block Coleman's execution.
Coleman's attorneys appealed on the grounds that only one judge of the 6th U.S. Circuit Court of Appeals had remanded the case to state custody, allowing the execution date to be set. The attorneys said at least a three-judge panel was needed to return the case to the state. The U.S. Supreme Court disagreed.
(Source: Columbus Dispatch)
Killer convicted in 2 states remains behind bars in Ohio
April 9, 2002
For the past 11 years, Ohio has kept convicted killer Debra Denise Brown behind bars -- at a total cost to taxpayers of $200,000. Brown faces a death sentence in Indiana, while Ohio's case against Brown is dormant, thanks to a commutation by former Gov. Richard F. Celeste. So why is she imprisoned here?
The answer is simple: Indiana hasn't asked for her. "We can't just send her over there,'' said Andrea Dean, spokeswoman for the Ohio Department of Rehabilitation and Correction. "A request has to be made by Indiana authorities.''
Brown, 39, the girlfriend and killing mate of Alton Coleman during a summer murder rampage across four states in 1984, was convicted and sentenced to death in both Ohio and Indiana.
However, Celeste -- a death-penalty opponent -- commuted Brown's death sentence to life in prison on Jan. 10, 1991, days before he left office. Celeste said he spared Brown's life because she was retarded, had childlike emotional development and had a "master-slave'' relationship with Coleman.
Brown's death sentence for the murder of 7-year-old Tamika Turks of Gary, Ind., remains in force. She is appealing the Indiana conviction in U.S. District Court in Columbus. Indiana officials are prosecuting the case; Brown's attorneys are court-appointed public defenders from out of state. Indiana officials, including former Gov. Evan Bayh, said immediately after Celeste's commutation that they planned to file a request to extradite Brown.
However, that never happened, perhaps in part because of criticism about the cost of bringing Coleman and Brown to Indiana for trial in 1986 after Ohio already had convicted them of murder.
"Ohio has a lawful right to hold her as well as Indiana,'' said Pam Pattison, spokeswoman for the Indiana Department of Correction. "There has been discussion about bringing her back to Indiana. Ohio kept her,'' Pattison said.
She offered no reason why Indiana has not extradited Brown. Brown is incarcerated at the Ohio Reformatory for Women in Marysville at an annual cost now figured at $22,014.
If Brown were shipped to Indiana, she would be housed at the Indiana Women's Prison in Indianapolis where Indiana taxpayers would pick up the annual cost of $19,374. Coleman's execution has been set for April 26 at the Southern Ohio Correctional Facility near Lucasville.
He was sentenced to die for the murder of Marlene Walters of Cincinnati. The case is being appealed. Although Coleman and Brown were close at the time of the murders in 1984, they no longer communicate or have any kind of relationship, one of Coleman's attorneys said.
(Source: Columbus Dispatch)
Convicted killer to testify in clemency hearing on April 16
April 2, 2002
Convicted killer Alton Coleman will get a chance for clemency at an Ohio Parole Board hearing April 16. The 12-member board will review Coleman's request to be spared from execution April 26 at the Southern Ohio Correctional Facility near Lucasville. The 2 p.m. meeting will be held at board offices, 1030 Alum Creek Dr. The hearing originally was scheduled for April 9, but was moved to April 16 after Dale Baich, one of Coleman's attorneys, complained to Raymond E. Capots, chairman of the board. Baich argued that Coleman wants to testify at his clemency hearing, but would not have time to prepare by April 9. Capots then moved the date back a week.
Gov. Bob Taft will make the final decision once he receives a recommendation from the board. Taft's unlimited clemency power allows him to suspend death sentences, delay an execution, or do nothing and allow it to proceed.
In three previous cases -- Wilford Berry in 1999, Jay D. Scott last year, and John W. Byrd Jr. earlier this year -- Taft refused to stop the executions.
Coleman, now 46, was sentenced to death for murdering Marlene Walters, 44, on July 13, 1984. The Norwood woman was bludgeoned with a wooden candleholder; her husband, Harry, was also badly beaten, but survived.
Coleman also was convicted for killing Tonnie Storey, 15, of Cincinnati, but the death sentence in that case was overturned. Coleman and his former girlfriend, Debra Denise Brown, made the FBI "Most Wanted'' list after going on a killing rampage in five states from May 29 to July 20, 1984.
When Coleman and Brown were arrested in Evanston, Ill., seven people were dead, including four in Ohio, and numerous other people were beaten and robbed.
Brown, incarcerated at the Ohio Reformatory for Women in Marysville, is sentenced to death in Indiana. Her Ohio death sentence was commuted by former Gov. Richard F. Celeste. Coleman is the only person in the country under death sentences in three states -- Ohio, Illinois and Indiana.
Lawyers for Alton Coleman have asked the U.S. Supreme Court to halt his execution
March 9, 2002
Coleman, 46, of Waukegan, Ill., was sentenced to death in two separate Ohio slayings. His execution is scheduled for April 26. Coleman also faces death sentences in Indiana and Illinois.
He was sentenced to die in Ohio for the strangulation death of Tonnie Storey, 15, of Cincinnati, and for the beating death of Marlene Walters, 44, of suburban Cincinnati.
A three-judge panel of the 6th U.S. Circuit Court of Appeals threw out the sentence in the Storey case after concluding that Coleman's attorneys didn't adequately represent him in a 1985 trial. But the court upheld Coleman's conviction in the Storey case and his death sentence in the Walters case.
Coleman's attorney, Dale Baich, on Feb. 25 asked the U.S. Supreme Court to overturn an appellate judge's denial of Coleman's request so the high court could resolve conflicting issues on attorney representation in the two cases. But Ohio Attorney General Betty D. Montgomery said she believes the execution should go forward.
The two different cases had separate defense teams, and one of the attorneys in the Walters case said Coleman had ordered him to not introduce certain evidence in the sentencing phase, Montgomery spokesman Joe Case said. "The bottom line is the judge had every right to deny that motion,'' Case said yesterday.March 7, 2002
Waukegan serial killer could be executed in Ohio
February 20, 2002
Serial killer Alton Coleman of Waukegan, convicted of slayings in the Midwest in 1984, could be the next inmate scheduled to die in Ohio. The state asked the Ohio Supreme Court on Feb. 6 to set an execution date for Coleman, who also faces death sentences in Indiana and Illinois. "We believe that his case is the next one up, but there's no guarantee with the court system and different issues he can raise," Bret Crow, a spokesman for Attorney General Betty Montgomery, said Wednesday.
The state on Tuesday executed John W. Byrd, the 3rd inmate to die since Ohio reinstated the death penalty in 1981 and the 1st to proclaim his innocence. It was the 2nd execution in 8 months, following Jay D. Scott's execution by injection in June. The Ohio Public Defender's Office said that as many as 10 death row inmates could exhaust their appeals this year.
Most are awaiting a review of their case by the U.S. Supreme Court. Such reviews are very rare, said David Bodiker, the Ohio Public Defender. "The chances of getting one of those things heard is greater than the lottery," Bodiker said.
Coleman's attorney Dale Baich would not discuss the likelihood of an execution date for his client this year. "I don't think it's appropriate to make predictions," he said Wednesday. "Circumstances in these cases may change, and it doesn't serve the public, the victims or Mr. Coleman to engage in such speculation."
Coleman received 2 death sentences in Ohio. One was for the July 11, 1984, strangulation death of Tonnie Storey, 15, of Cincinnati. The 2nd was for the July 13, 1984, beating death of Marlene Walters, 44, of suburban Cincinnati. An execution date for Coleman could depend on the resolution of conflicting rulings by the same federal court.
A 3-judge panel of the 6th U.S. Circuit Court of Appeals threw out Coleman's death sentence in the Storey case after concluding that Coleman's attorneys didn't adequately represent him in a 1985 trial. The court, however, upheld Coleman's conviction. A different 3-judge panel of the court had already upheld Coleman's death sentence for Walters' death.
Coleman's attorneys have asked the U.S. Supreme Court to review the Walters' ruling. They argue that since the same 2 attorneys represented Coleman in both Ohio cases, it is inconsistent that his sentence be overturned in the Storey case and upheld in the Walters' case. "It would be very unfair to execute someone when 2 different panels of the same court reach conflicting results," Baich said. "We hope the U.S. Supreme Court will resolve this conflict."
Senate President Richard Finan, who helped write the law reinstating Ohio's death penalty, on Wednesday criticized the long appeals process for death row inmates. "Deterrence is a problem when the person sits there for 19 years, and they write 2 books, they find God and they join the junior chamber of commerce and then all of a sudden they're a good person," Finan said.
(source: Associated Press)
State v. Coleman, 1987 WL 18124 (Ohio App. 1987). (Direct Appeal)
On the morning of July 11, 1984, Tonnie Storey, a fifteen-year-old black female, left her home in Cincinnati to attend a computer class at a junior high school.
Eight days later, Storey's partially decomposed body was discovered in an abandoned building; it was determined that she had been the victim of a homicide.
The defendant-appellant, Alton Coleman, and a female companion, Deborah Denise Brown, were subsequently indicted for the homicide in a true bill containing two counts of aggravated murder and one count of aggravated robbery. The two counts of aggravated murder contained death-penalty specifications under R.C. 2929.04
Appellant Coleman was tried separately before a jury and found guilty of purposely, and with prior calculation and design, causing the death of Tonnie Storey as part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons (first count with first specification).
The jury also returned a verdict finding him guilty under R.C. 2903.02 of purposely causing Storey's death, a lesser included offense of the aggravated murder charged in the indictment's second count. Coleman was acquitted on the remaining charge of aggravated robbery.
In the sentencing phase of the trial, the jurors determined that the aggravating circumstance found to exist in the case outweighed the mitigating factors, and they accordingly recommended that Coleman receive the death penalty.
The trial judge, after independently weighing the evidence, accepted the jury's recommendation and sentenced Coleman to death for the aggravated murder of Storey.
No further sentence was imposed in connection with the guilty verdict separately returned for the lesser included offense of murder. The record reveals the following pertinent chronology of events:
1. January 7, 1985: Coleman was returned to Hamilton County to stand trial on two separate capital indictments (the one here at issue and another involving the murder of one Marlene Walters, see State v. Coleman [Dec. 10, 1986], Hamilton App. No. C-850340, (unreported). At that time, he was serving a term of imprisonment on federal kidnapping charges.
2. February 13, 1985: Trial in the present case was set for April 29, 1985.
3. March 28, 1985: Coleman was held in contempt for refusing to provide handwriting samples.
4. April 15, 1985: Coleman's trial for the Walters murder began.
5. April 23, 1985: The present case was continued until June 17, 1985, because the other trial for the Walters murder was in progress and Coleman would not be available on the scheduled trial date of April 29, 1985.
6. May 6, 1985: Coleman was sentenced to death at the conclusion of the trial for the Walters murder.
7. May 20, 1985: Trial began in the present case.
State v. Coleman, 1986 WL 14070 (Ohio App. 1986). (Direct Appeal-Walters)
The defendant-appellant, Alton Coleman, was found guilty, after a jury trial, of the July 13, 1984 aggravated murder of Marlene Walters. The trial court imposed a sentence of capital punishment and this appeal as of right ensued.
The appellant and his companion, Debra Brown, arrived at the home of Harry Walters and Marlene Walters on July 13, 1984, ostensibly to discuss the purchase of a camper that Mr. and Mrs. Walters had for sale. The result of this encounter was discovered by the daughter of Mr. and Mrs. Walters when she returned from work about 4:00 p.m. on the same day.
She found the body of her mother, Marlene Walters, in the basement. Her mother was dead and her body displayed multiple severe head injuries. Harry Walters was also found, alive, in the basement with less severe head injuries.
An automobile belonging to Mr. Walters had been stolen and was recovered in Lexington, Kentucky on July 15, 1984. The record contains further evidence of the movements of the appellant and Brown until they were apprehended in Evanston, Illinois. They were returned, subsequently, to Hamilton County, Ohio for trial.
Each of the two counts of aggravated murder was accompanied by three specifications of aggravating circumstances. The first specification to the first count charged that the aggravated murder was committed while the appellant was committing or attempting to commit aggravated burglary and that appellant was the principal offender in the commission of the aggravated murder or committed the aggravated murder with prior calculation and design as specified in R.C. 2929.04(A)(7)
The first specification to the second count charged the appellant in similar fashion, substituting aggravated robbery for aggravated burglary. The jury returned verdicts finding the appellant guilty of the first specification to each count. The jury returned not guilty verdicts on the second specification to each count of aggravated murder.
The second specification charged the aggravating circumstance of committing the aggravated murder for the purpose of escaping detection, apprehension and punishment for another offense (aggravated burglary and aggravated robbery, respectively) as specified in R.C. 2929.04(A)(3)
The third specification to each count of aggravated murder charged the appellant with committing aggravated murder as a part of a course of conduct involving the purposeful attempt by the appellant to kill two or more persons as specified in R.C. 2929.04(A)(5) The jury found the appellant guilty of the third specification to each count of aggravated murder.
On direct examination, the co-defendant, Debra Brown, recanted her testimony given during the first phase of the trial. In the second phase of the trial, she testified that she committed the murder of Marlene Walters.
The record discloses that for approximately two weeks prior to the homicide on review, appellant and his co-defendant traveled in Michigan and Ohio without visible means of support other than robberies perpetrated against older couples in their respective homes.
Their journey led them to Norwood, Ohio on July 13, 1984, where they approached Harry and Marlene Walters ostensibly to discuss the purchase of a camper.
By this ruse, appellant and his co-defendant were admitted to the Walters residence where Harry Walters was severely beaten about his head and left to die beside the body of his wife who had been beaten to death.
The appellant and his co-defendant removed some personal property from the residence, stole the automobile of Harry Walters and left Hamilton County. Thereafter they committed additional crimes in Kentucky and Dayton, Ohio. They were finally arrested in Illinois on July 20, 1984.
The appellant used a variety of instruments in murdering Marlene Walters and attempting to murder Harry Walters including glass bowls, candlesticks, soft drink bottles, vise-grips, crowbar, electric cord, and handcuffs. The violence of the attacks fractured the skulls of both victims, driving portions of bone into the brain of each victim.
The disarray of the furnishings in the home, the blood at various places and the physical injuries inflicted upon Mr. and Mrs. Walters all constitute irrefutable evidence of the ferocity of the assaults motivated by a purpose to kill the victims.
We find that the evidence in the record before us proves, beyond a reasonable doubt, that the appellant is guilty of the counts and specification three to counts one and two contained in the indictment and of which he was convicted by the trial jury.
Further, considering the aggravating circumstances of the specifications and weighing them against the nature and circumstances of the offense, the history, character and background of the appellant and all the mitigating factors listed in R.C. 2929.04(B) we conclude that the aggravating circumstances do outweigh the mitigating factors present in this case.
State v. Coleman, 544 N.E.2d 622 (Ohio 1989) (Direct Appeal-Storey).
On July 7, 1984, Alton Coleman (appellant), and Debra D. Brown approached the home of the Reverend and Mrs. Millard Gay of Dayton, Ohio. After conversing with Mr. Gay, they stayed at the Gays' home from July 7 through July 9, 1984.
Appellant and Brown accompanied the Gays to religious services in Lockwood, Ohio, on July 9, 1984. The next day, the Gays drove appellant and Brown to downtown Cincinnati and dropped them off.
On July 11, 1984 at approximately 10:00 a.m., Tonnie Storey, age fifteen, left her home in Cincinnati wearing rusty brown cutoff shorts, a beige sleeveless blouse with yellow rings, blue tassel shoes and a Michael Jackson button. She was next seen at Bloom Junior High School at approximately 11:45 a.m. by a teacher.
Later that same day, between 5:00 and 6:00 p.m., a classmate saw Tonnie on the corner of May and Morgan Streets in Cincinnati in the company of a man and a woman. The classmate identified the man as Coleman. When Tonnie had not returned home by 4:30 p.m. that day, her mother called the police and reported her missing.
On July 19, 1984, a body was discovered in an abandoned building on May Street by a real estate agent. A Michael Jackson button and a pair of brown shorts with keys in the pocket were discovered in the area where the body was found.
The keys identified by decedent's father belonged to the Storey residence. The body was badly decomposed and identification was made through fingerprints. The body was identified as that of Tonnie Storey. The cause of death of Tonnie was homicidal asphyxia.
Appellant and Brown were jointly indicted for the murder of Tonnie on October 10, 1984, in a three-count indictment containing specifications. The first specification charged pursuant to R.C. 2929.04(A)(5) was that the aggravated murder was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons.
The death-penalty specification was dismissed prior to trial. The third specification charged pursuant to R.C. 2929.04(A)(3) was that the offense was committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense.
Appellant was tried separately from co-indictee Brown. The jury found appellant guilty of aggravated murder and guilty of specification No. 1. The mitigation hearing was held one day after the guilt phase was completed, and the jury recommended the penalty of death.
On June 24, 1985, the trial court accepted the jury's recommendation and sentenced appellant to death. Appellant appealed to the court of appeals which affirmed the judgment of the trial court. This cause is now before this court upon an appeal as of right.
During the summer of 1984 Alton Coleman and Debra Brown embarked upon a course of criminal conduct through several Midwestern states. In May 1984 appellant befriended Juanita Wheat, a black female, who lived in Kenosha, Wisconsin, and was the mother of nine-year-old Vernita.
On May 29, 1984, appellant abducted Vernita to Waukegan, Illinois. Her body was discovered on June 19, 1984 in an abandoned building, four blocks from appellant's grandmother's apartment. The body was badly decomposed and the cause of death was ligature strangulation.
On May 31, 1984, appellant befriended Robert Carpenter in Waukegan, Illinois, and spent the night at his home. The next day he borrowed Carpenter's car to go to the store and never returned.
In June 1984, appellant and Brown appeared in Gary, Indiana, where they encountered two young black girls, Annie Hillard, age nine or ten, and Tamika Turks, age seven. Tamika's partially decomposed body was discovered on June 19, 1984. The cause of death was ligature strangulation. Annie survived.
On June 19, 1984, appellant befriended Donna Williams, a twenty-five-year- old black female, of Gary, Indiana. On July 11, 1984, Williams' badly decomposed body was discovered in Detroit, Michigan, one-quarter to one- half mile from where her car was found. The cause of death was ligature strangulation.
On June 28, 1984, appellant and Brown entered the home of Mr. and Mrs. Palmer Jones of Dearborn Heights, Michigan. Palmer was handcuffed by Coleman and then badly beaten. Mrs. Jones was also attacked. Coleman ripped the Joneses' phone from the wall and stole their money and car.
On July 5, 1984, appellant and Brown came to Toledo, Ohio, where appellant befriended Virginia Temple, an adult black female and the mother of several children. Her eldest child was Rachelle, age nine. Relatives became concerned about the children and upon entering the home found the young children alone and frightened.
Virginia's and Rachelle's bodies were discovered in a crawl space. A bracelet was missing from the home and later was found in Cincinnati under the body of Tonnie Storey. The cause of death of both Virginia and Rachelle was strangulation.
On July 7, 1984, appellant and Brown entered the home of Mr. and Mrs. Frank Duvendack of Toledo. Coleman handcuffed Frank. The Duvendacks were then bound with their own appliance cords and phone cords which had been cut, and money and the Duvendacks' car were stolen.
On July 7, 1984, appellant and Brown appeared at the home of Reverend and Mrs. Millard Gay of Dayton, Ohio. They stayed with them in Dayton and then accompanied them to Lockwood, Ohio, on July 9, to a religious service. On July 10, the Gays dropped off appellant and Brown in downtown Cincinnati.
On July 17, 1984, appellant and Brown reappeared at the Gay home. The Reverend Mr. Gay recognized appellant and he and his wife were accosted with guns. Mr. Gay asked appellant, " * * * why you want to do us like that, like this," and according to Gay, Coleman responded: "I'm not going to kill you. * * * But we generally kills them where we go." Appellant took Mr. Gay's car.
On July 13, 1984, appellant and Brown entered the home of Mr. and Mrs. Harry Walters of Norwood, Ohio. Mrs. Walters was killed and Harry was attacked. Money and the Walterses' car were stolen.
State v. Coleman, 525 N.E.2d 792 (Ohio 1988) (Direct Appeal-Walters).
Alton Coleman and Debra D. Brown bicycled into Norwood, Ohio, on July 13, 1984, at about 9:30 a.m. About three hours later, they drove away in Harry Walters' car, leaving Harry Walters unconscious and Marlene Walters dead. Harry Walters survived. He testified that Coleman and Brown inquired about a camping trailer he had been offering for sale. Upon agreement to sell the trailer, Harry Walters invited Coleman and Brown into his home. He sat on the couch as he and Coleman discussed the trailer title.
Coleman picked up a wooden candlestick and, after admiring it, hit Harry Walters on the back of the head. The force of the blow broke the candlestick and drove an island of bone against Mr. Walters' brain. Mr. Walters remembered little else.
Sheri Walters, Harry and Marlene's daughter, came home from work at about 3:45 p.m. At the bottom of the basement steps, she found her father, barely alive, and her mother, dead. Both had ligatures around their throats and electrical cords tied around their bare feet. Her mother's hands were bound behind her back and her father's hands were handcuffed behind his back. Her mother's head was covered with a bloody sheet.
Expert testimony indicated Marlene Walters had been struck on the head approximately twenty to twenty-five times. Twelve lacerations, some of which were made with a pair of vice grips, covered her face and scalp. The back of her skull was smashed to pieces. Parts of her skull and brain were missing.
The living room hallway, and basement, were splattered with blood. Fragments of a broken soda bottle, bearing Coleman's fingerprints, were found in the living room. Strands of Marlene Walters' hair were found on a blood- stained magazine rack located in the living room.
Bloody footprints, made by two different kinds of shoes, were found in the basement. The family car, a red Plymouth Reliant, was gone. Money, jewelry, and shoes had been stolen. Left behind were two bicycles, clothes and shoes.
Coleman was found guilty of aggravated murder while committing aggravated burglary under R.C. 2903.01 . The jury found Coleman was the principal offender of this offense. He was also found to be a participant in a course of conduct involving the purposeful attempt to kill two or more persons pursuant to R.C. 2929.04(A)(5).
The jury also found Coleman guilty of aggravated murder while committing aggravated robbery under R.C. 2903.01 and found he was the principal offender. They also found, as in the first charge, that Coleman participated in a course of conduct involving the purposeful attempt to kill two or more people.
Finally, the jury found Coleman guilty of attempted aggravated murder, aggravated robbery (theft of a motor vehicle and other personal property, after inflicting serious physical harm upon Harry Walters), and aggravated burglary. The jury concluded that the death penalty was appropriate and the trial judge ultimately agreed.
People v. Coleman, 544 N.E.2d 330 (Ill. 1989) (Direct Appeal).
The defendant, Alton Coleman, was charged by indictment in the circuit court of Lake County for the murder (Ill.Rev.Stat.1983, ch. 38, pars. 9- 1(a)(2), (a)(3)) and aggravated kidnapping (Ill.Rev.Stat.1983, ch. 38, par. 10-2(a)(3)) of Vernita Wheat.
A jury found the defendant guilty of each charge. The State requested a hearing to consider whether the death penalty should be imposed. (Ill.Rev.Stat.1983, ch. 38, par. 9-1(d).) The same jury found the defendant eligible for the death penalty and found there were no mitigating factors sufficient to preclude a sentence of death.
The circuit court sentenced the defendant to death and to a 15-year term of imprisonment on the aggravated kidnapping conviction. The death sentence was stayed (107 Ill.2d R. 609(a)) pending direct appeal to this court (Ill. Const.1970, art. VI, § 4(b); 107 Ill.2d R. 603).
The following evidence was adduced at the guilt phase of the defendant's trial. The partially decomposed body of nine-year-old Vernita Wheat was discovered in an abandoned building in Waukegan, Illinois, on June 19, 1984. Her chest, neck and hands were bound with cable wire.
Dr. Larry Blum, assigned to the case, determined that the cause of death was ligature strangulation. Dr. Blum opined that the death occurred approximately three weeks prior to the discovery of the body.
Dr. Bernard Greenberg, a forensic entomologist, studies the development of the fly larvae found on the victim's body and opined that the body was deposited in the building on either May 29 or May 30.
Juanita Wheat, the victim's mother, testified that at the time of the offense she resided in Kenosha, Wisconsin, with her daughter, Vernita, and her seven- year-old son, Brandon.
At the end of April or beginning of May of 1984, the defendant introduced himself to Juanita as Robert Knight, showed her an identification card bearing that name, and told her he lived two blocks away.
The defendant actually lived in Waukegan. That evening the defendant ate dinner with Juanita at her apartment and played with her children.
Several days later the defendant returned to Juanita's apartment, spent time with Juanita and her children, and met Juanita's cousin, Willie Mae Peebles.
On May 29, 1984, the defendant returned to Juanita's apartment building and without invitation entered the apartment of Juanita's neighbor, Ellen Reeves, whom Juanita was visiting. Juanita introduced the defendant to Reeves.
With Juanita's permission, the defendant then took the children to a carnival, and returned them to Juanita's apartment by 10:15 p.m. Juanita then allowed Vernita to accompany the defendant to his apartment "to pick up a stereo system."
When the defendant had not returned Vernita by 10:45 p.m., Juanita and Reeves began searching for her. Approximately one hour later Juanita telephoned the police.
On the following day, Juanita and Reeves identified the defendant's photograph at the police station. Juanita, Reeves and Peebles identified the defendant in court.
Ernesto Zertuche, a patron of an establishment in Kenosha called the "400 Club," testified that a black man and a black girl entered the establishment at approximately 11:35 p.m. on May 29, 1984, and the man immediately used the telephone.
A few minutes later a cab arrived to pick up the man and girl. Zertuche identified a photograph of Vernita Wheat as the girl he had seen at the 400 Club.
David McIntosh, another patron, corroborated the testimony of Zertuche. McIntosh identified the defendant and identified a photograph of Vernita Wheat as the man and girl he had seen at the 400 Club.
Keith Hach, a cab driver, testified that his cab was dispatched to the 400 Club at 11:35 p.m. on May 29, 1984. Once he arrived, a black man and black girl entered his cab. The man directed Hach to drive them to Zion, Illinois, "to pick up a stereo system."
When they arrived at the designated house, the man tapped Hach on the shoulder and told him to drive them to Waukegan. Hach drove the man and girl to "Slater's Barbecue" in Waukegan.
James Adams, an employee at the Diamond Scrap Yard located next to Slater's Barbecue, testified that he was working during the early morning hours of May 30, 1984.
At approximately 1:30 a.m., he saw a black man and a black girl walking "in the middle of the street as if they had came out of Slater's."
On behalf of the defense, Anna Ross testified that she saw the defendant and Vernita Wheat walking past her house during the afternoon of May 30, 1984. Ross waved to Vernita and Vernita waved back.
Patricia Parks, a friend of the defendant, testified that the defendant came to her residence during the morning of May 31, 1984, and asked her to leave town with him. She declined.
Joseph Thompson, another friend of the defendant, testified that he drove the defendant to a "record shop" in Chicago at approximately noon on May 31, 1984, so that the defendant could obtain false identification cards. Afterwards, Thompson drove the defendant to a train station in Evanston, Illinois.
Terri Coleman, the defendant's sister, testified that the defendant visited with her briefly at her house in Waukegan at approximately 7 p.m. on May 31, 1984. She informed the defendant that the police had asked her about a "girl in Kenosha."
Officer Michael Bettasso testified that he was dispatched to Terri Coleman's house at 7 p.m. on May 31, 1984. He stated that the police had information that a cab had taken the defendant to that location.
When Officer Bettasso arrived, he saw a black man, whom he identified as the defendant, leaving the house.
The defendant saw Officer Bettasso, turned and fled. Officer Bettasso pursued the defendant, but was unable to apprehend him.
On June 19, 1984, Andrew Greenwood and Murry Smith discovered Vernita Wheat's body in the bathroom of an abandoned building in Waukegan. The abandoned building was located two blocks from Slater's Barbecue.
Greenwood telephoned the police. After an investigation of the premises, two fingerprints were discovered on the door of the bathroom: the first was unidentified and the second was identified as the defendant's.
The defendant was arrested in Evanston, Illinois, at approximately 10:40 a.m. on July 20, 1984. That afternoon the defendant told the police that he knew Juanita Wheat, but denied that he knew or killed Vernita Wheat.
244 F.3d 533
Alton Coleman, Petitioner-Appellant,
v.
Betty Mitchell, Warden, Respondent-Appellee.
Docket number: 98-3546
Federal Circuits, 6th Cir.
March 26, 2001
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. Nos. 94-00863, 94-00864, Sandra S. Beckwith, District Judge.
Before: MERRITT, RYAN, and BOGGS, Circuit Judges.
RYAN, Circuit Judge.
OPINION
Petitioner Alton Coleman has been convicted of murder in an Ohio state court and has been sentenced to death. He now appeals the district court's order dismissing his habeas corpus petition brought pursuant to 28 U.S.C. 2254. Coleman raises several assignments of error, the most serious of which are: (1) the district court erred when it held that Coleman had procedurally defaulted on 34 of the 50 claims raised in his habeas petition; (2) his constitutional due process rights were violated because of prosecutorial misconductand the introduction of "other acts" evidence; and (3) he was denied effective assistance of counsel at sentencing because his attorneys failed to fully investigate his background and mental health for purposes of offering evidence in mitigation. For the reasons discussed below, we will affirm the judgment of the district court.
I.
A.
On July 13, 1984, Coleman and his girlfriend, Debra D. Brown, arrived via bicycle in Norwood, Ohio, and stopped at the home of Harry and Marlene Walters around 9:30 a.m. After inquiring about a camping trailer the Walterses had for sale, Coleman and Brown were invited into the Walterses' home. Once inside, Coleman picked up a wooden candlestick and began striking Mr. Walters on the back of the head.
When the Walterses' daughter, Sheri, arrived home from work around 3:45 p.m. the same day, she found the house splattered with blood and her parents' motionless bodies lying at the bottom of the basement steps. Mr. Walters, barely breathing, had his hands handcuffed behind his back and his feet tied together with electrical cords. Mrs. Walters, already dead, had a bloody sheet covering her head. Her hands were bound behind her back and her feet were tied together with electrical cords. At trial, expert testimony indicated that Mrs. Walters had been struck on the head approximately 25 times. Twelve lacerations, several made with a pair of vise grips, covered her face and scalp. The back of her skull was smashed to pieces, and parts of both her skull and brain were missing. Mr. Walters survived the beating with some degree of brain damage.
Money, jewelry, shoes, and the family car had been stolen. Two bicycles were found abandoned in the Walterses' yard, and Coleman's fingerprints were found on a broken soda bottle in the living room.
Coleman and Brown have been implicated in several murders, rapes, kidnappings, and armed robberies that were committed in several Midwestern states during the summer of 1984.
B.
A Hamilton County grand jury indicted Coleman on the following five counts: (1) aggravated murder while committing aggravated burglary; (2) aggravated murder while committing aggravated robbery; (3) attempted aggravated murder; (4) aggravated robbery; and (5) aggravated burglary. Following trial, an Ohio jury returned a verdict of guilty on all charges and Coleman was sentenced to death for the aggravated murder of Mrs. Walters. Coleman's judgment of conviction and his death sentence were affirmed by the Ohio Court of Appeals, State v. Coleman, Nos. C-850340, B-842559A, 1986 WL 14070 (Ohio Ct. App. Dec. 10, 1986), and the Ohio Supreme Court, State v. Coleman, 525 N.E.2d 792 (Ohio 1988). The United States Supreme Court denied certiorari, Coleman v. Ohio, 488 U.S. 900 (1988).
Coleman then petitioned the trial court for post-conviction relief pursuant to Ohio Rev. Code Ann. § 2953.21. The trial court, without conducting an evidentiary hearing, adopted the state's proposed findings of fact and conclusions of law and denied relief. The Ohio Court of Appeals affirmed the trial court's decision, State v. Coleman, No. C-900811, 1993 WL 74756 (Ohio Ct. App. Mar. 17, 1993), and the Ohio Supreme Court dismissed Coleman's appeal, ruling that it lacked jurisdiction, State v. Coleman, 619 N.E.2d 419 (Ohio 1993).
On July 9, 1993, Coleman filed an Application for Delayed Reconsideration in the Ohio Court of Appeals alleging that his counsel on direct appeal had been constitutionally ineffective. The Court of Appeals denied the application, ruling that Coleman had failed to show good cause for filing itmore than 90 days after the court's judgment. See Ohio App. R. 26(B)(2)(b). On October 7, 1994, the Ohio Supreme Court affirmed the Court of Appeals' decision, denied Coleman's request for reconsideration, and revoked the stay of execution on Coleman's death sentence.
On January 6, 1995, Coleman filed his habeas corpus petition in federal court. He brought 50 assignments of error. The district court concluded that 34 of the assignments of error were procedurally barred because Coleman had failed to raise them on direct appeal in state court. The remaining assignments of error were found to be without merit.
On February 13, 1995, the district court granted Coleman's motion to consolidate three habeas cases: the sentence of death for the murder of Mrs. Walters; a second sentence of death from his conviction for another murder in Ohio; and a conviction for interstate kidnapping. On February 13, 1998, the district court denied, inter alia, Coleman's habeas corpuspetition pertaining to the murder of Mrs. Walters.
Coleman timely appealed the district court's judgment in the consolidated case, and this court then severed Coleman's appeal. Consequently, this appeal pertains only to the denial of habeas corpus relief in the capital case involving the death of Mrs. Walters.
II.
Because Coleman's habeas petition was filed on January 6, 1995, before the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), became effective on April 24, 1996, the pre-AEDPA standard of review applies. See 28 U.S.C. 2254 (1996). This court must review the district court's legal conclusions denovo and its findings of fact for clear error. Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir. 1997). And we must defer to state court factual findings pertaining to primary or historical facts, which are presumed correct and are rebuttable only by clear and convincing evidence. See id. State court determinations of law and mixed questions of law and fact should be reviewed de novo. Id.
III.
The district court concluded that Coleman had procedurally defaulted on 34 of the 50 claims raised in his habeaspetition because of failure to comply with Ohio's res judicata doctrine established in State v. Perry, 226 N.E.2d 104 (Ohio 1967). In Perry, the Ohio Supreme Court held:
Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment.
Id. at 108 (emphasis added).
Coleman contends that even if his claims are procedurally defaulted for not having been raised on direct appeal, his default is "excused" because his appellate counsel was constitutionally ineffective for failing to properly raise the issues in that appeal. Coleman cannot obtain federal habeas relief under 28 U.S.C. 2254 unless he has completely exhausted his available state court remedies by presenting his claims to the state's highest court. See Coleman v. Thompson, 501 U.S. 722 , 731 (1991). And, he cannot circumvent the exhaustion requirement by failing to comply with state procedural rules. See id.at 731-32; Combs v. Coyle, 205 F.3d 269, 274 (6th Cir.), cert. denied, 121 S. Ct. 623 (2000).
When determining whether a state petitioner's claim is barred from habeas review based on procedural default, this court must look to the following fourfactors. First, the court must determine that there is an applicable state procedural rule with which the petitioner failed to comply. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Second, the court must determine that the state rule is one that is "firmly established and regularly followed." Jones v. Toombs, 125 F.3d 945, 946 (6th Cir. 1997) (internal quotation marks and citation omitted). Third, the court must determine that the state procedural rule is an "adequate and independent" state ground on which the state may rely to foreclose review of the federal constitutional claim. Maupin, 785 F.2d at 138. If all three of these factors are met, the petitioner must then show there was "cause" for the default and "prejudice" resulting therefrom, or that a "miscarriage of justice" would result if the procedural default were enforced. See Wainwright v. Sykes, 433 U.S. 72, 84-87, 90-91 (1977). A state procedural bar will be held to bar federal habeas review only when the last reasoned decision of the state court concluded that the claims were barred by a state procedural rule. See Harris v. Reed, 489 U.S. 255, 263 (1989); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991).
In Edwards v. Carpenter, 529 U.S. 446, 120 S. Ct. 1587 (2000), the United States Supreme Court held that "an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted." Id. at 1592. In this case, the petitioner has procedurally defaulted on his claim that his appellate counsel was ineffective because, as we will explain, he failed to bring the claim in a timely manner as required by Ohio law, which is itself a procedural bar. Therefore, in order for Coleman to use his ineffective assistance of appellate counsel claim as "cause" to excuse his other procedurally defaulted claims, he must first meet the cause and prejudice standard for the ineffective assistance of appellate counsel claim itself. We conclude that Coleman has not carried this burden.
According to Coleman, the district court erred in declining to consider his ineffective assistance of appellate counsel claim on the ground that the claim was procedurally barred. As we have said, the Ohio Court of Appeals denied Coleman's effort to have his ineffective assistance of appellate counsel claim considered in his application for delayed reconsideration of his direct appeal. The Court of Appeals ruled that the application was untimely because it was not filed within 90 days of the original Court of Appeals decision, as required by Ohio App. R. 26(B). Coleman alleges that he asserted the claim in his petition for post-conviction relief in the state trial court in 1990, rather than in an application to reconsider his direct appeal, because there was no regularly followed procedure in the Ohio courts for raising such claims.
In February 1992, after conclusion of his direct appeals to the Ohio Court of Appeals and Ohio Supreme Court, and during the pendency of Coleman's appeal of the denial of his post-conviction petition, the Ohio Supreme Court decidedState v. Murnahan, 584 N.E.2d 1204 (Ohio 1992). The Murnahan court held that ineffective assistance of appellate counsel claims should be raised in a delayed motion for reconsideration before the Ohio Court of Appeals and not in a petition for post-conviction relief.
Coleman waited 16 months after Murnahan was decided before filing his delayed motion for reconsideration in the Court of Appeals on July 9, 1993, and the Court of Appeals dismissed the application because it was more than 90 days after the court's 1986 decision and Coleman had not shown good cause for the delay, as required by Ohio App. R. 26(B).
On July 1, 1993, Ohio App. R. 26(B) was amended to provide, in pertinent part:
(B)Application for reopening(1)A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.
(2)An application for reopening shall contain all of the following:
. . . . (b)A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment.
Ohio App. R. 26(B).
While Coleman's application was filed prior to the amendment's effective date, the amendment governs further proceedings in pending actions, unless it is shown that its application would work an injustice. Coleman has not made this showing.
Coleman argues that the 90-day filing period that he missed should have been "tolled" due to the fact that the Ohio Court of Appeals had not yet ruled on his petition for post-conviction relief, which included a claim of ineffective assistance of appellate counsel. Although he is not entirely clear about it, Coleman seems to be arguing there was not a firmly established and regularly followed procedural rule for raising ineffective assistance of appellate counsel claims in 1986 when his appeal was decided in the Ohio Court of Appeals, and therefore, no "adequate and independent" state ground existed to foreclose review of the federal constitutional claim. We do not find Coleman's argument persuasive.
Before the Ohio Supreme Court's decision in Murnahan, it was well established in the Ohio First Appellate District, the appellate district in which Coleman's appeal was heard, that claims of ineffective assistance of appellate counsel were to be raised in a delayed motion for reconsideration and were not cognizable in state post-conviction proceedings. See State v. Rone, Nos. C-820322, B-784088, 1983 WL 8877 (Ohio Ct. App. June 1, 1983) (unpublished disposition). Even assuming Coleman was confused by the proper forum in which to initially bring his claim, he does not explain why he did not ask the court to remove his ineffective appellate counsel claim from his post-conviction petition without prejudice in order to raise it in a timely manner in a Murnahan motion or why he waited 16 months after Murnahan was decided to raise the claim.
When a habeas petitioner has failed to show cause for not asserting his ineffective assistance of appellate counsel claim properly in the Ohio courts, a federal court may not reach the merits of the habeas claim unless the petitioner can show that refusal to consider his claim would result in a fundamental miscarriage of justice. The fundamental miscarriage of justice exception requires a showing that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995). Coleman has not made this showing and does not claim to have done so.
Even if Coleman could offer an appropriate excuse for failing to bring his ineffective assistance of appellate counsel claim in a proper and timely manner, the claim is meritless. The Edwards Court recently reemphasized that "[n]ot just any deficiency in counsel's performance" is sufficient to excuse procedural default; "the assistance must have been so ineffective as to violate the Federal Constitution." Edwards, 120 S. Ct. at 1591. The proper ineffective assistance of counsel standard was articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):
First, the defendant must show that counsel's performance was deficient.This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687.
On direct appeal to the Ohio First Appellate District, Coleman's appellate counsel raised 15 assignments of error and on direct appeal to the Ohio Supreme Court, he asserted 11 assignments of error. After a careful review of the record, we are in agreement with the district court that Coleman's appellate counsel was not deficient for refusing to raise approximately 60 additional claims as Coleman suggests. Coleman does not have a constitutional right to have his counsel press nonfrivolous points if counsel decides as a matter of professional judgment not to press those points. See Jones v. Barnes, 463 U.S. 745, 750-51 (1983).
In conclusion, because Coleman's ineffective assistance of appellate counsel claim is itself procedurally defaulted and he has not shown "cause and prejudice" for that default, Coleman's ineffective assistance claim cannot serve as "cause" to excuse his 34 procedurally defaulted claims.
IV.
Coleman next claims that his due process rights were violated due to misconduct by the prosecutor.
A.
Specifically, Coleman argues that the prosecution failed to disclose the existence of the following: (1) an interview conducted by the Federal Bureau of Investigation (FBI) on July 20, 1984; (2) items seized by the FBI from Coleman's grandmother's home; (3) the identity of Linnroy Bottoson, who allegedly knew of Coleman's whereabouts; (4)Coleman's alleged efforts to surrender; (5) the prosecution's intention to persuade Debra Brown to cooperate with them; (6) any exculpatory evidence concerning or relating to Coleman; (7) psychological, psychiatric, and/or medical profiles, reports, evaluations, and summaries concerning Coleman and/or Brown; (8) background files, reports, information, and summaries concerning Coleman and/or members of his family; (9) background information regarding Coleman; and (10) any mitigating evidence concerning Coleman. We agree with the district court that Coleman procedurally defaulted on any claim related to the seventh item because he failed to raise it on direct appeal, and the state court did not consider it when ruling on Coleman's post-conviction petition.
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." Id. at 87. "[T]here is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler v. Greene, 527 U.S. 263, 281 (1999). Furthermore, there is no Brady violation if the defendant knew or should have known the essential facts necessary to obtain the information in question. See Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998), cert. denied, 528 U.S. 842 (1999).
Without deciding that the items described by Coleman were withheld from him as he alleges, we are satisfied that even if they had been supplied to him, theverdict would have been the same because the quantity and quality of the evidence introduced to prove Coleman's guilt was overwhelming. Consequently, Coleman is unable to show that he was "prejudiced" by not having the information, and there is no Brady violation.
B.
Coleman also claims that he was denied due process of law because the state introduced evidence of "other acts," including murder, for which he was not on trial.
"Other acts" evidence may be introduced in certain situations pursuant to Ohio Rev. Code Ann. § 2945.59 and Ohio Evid. R. 404(B). Section 2945.59 provides:
In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
Ohio Rev. Code Ann. § 2945.59.
And, Ohio Evid. R. 404(B) specifies:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ohio Evid. R. 404(B).
Coleman contends that the "other acts" evidence introduced at trial linking him to other murder cases violated his right to due process and a fair trial because the evidence was dissimilar to the crime involving Mrs. Walters and irrelevant to the issues of scheme, motive, intent, system, or absence of mistake or accident.
The respondent answers that the "other acts" evidence was admissible because of its similarity to the case involving Mrs. Walters since it shows that Coleman was involved in other cases involving: (1) elderly couples; (2) use of deception to enter the victim's home; (3) use of handcuffs; (4) use of electrical cords to tie the victim's hands and feet; (5) the incapacitation of the victim's telephone; (6) the theft of the victim's motor vehicle; and (7) a conspiracy with Debra Brown. Although the respondent's argument is not entirely clear, we take it to be that the "other acts" evidence was introduced to show that Mrs. Walters's killer used the same modus operandi that Coleman used in the other killings--his "signature," so to speak--and therefore, that the "other acts" evidence was admissible as tending to prove Coleman's identity as the killer in this case. This is, of course, a familiar justification for the introduction of "other acts" evidence pursuant to Ohio Rev. Code Ann. § 2945.59 and Ohio Evid. R. 404(B).
Because this is an appeal from a habeas corpus decision and not an appeal of Coleman's state conviction, we do not pass upon "errors in the application of state law, especially rulings regarding the admission or exclusion of evidence." Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1998). A state court evidentiary ruling will be reviewed by a federal habeas court only if it were so fundamentally unfair as to violate the petitioner's due process rights. See Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
The trial court's explanation for the admission of the "other acts" evidence included:
In many of these other offenses, the evidence showed that the defendant used the same method of operation;that he would handcuff his victims and the majority of his assaults on their persons would occur after they were bound and defenseless. It should be noted that all of the victims of other crimes by the defendant who testified in this trial were elderly people, many of them frail, and most all of them incapable of defending themselves against the defendant's attack and most certainly when they were at the disadvantage of having their hands bound with handcuffs, electrical cord or similar ligatures.
We agree with the trial court that the "other acts" evidence was relevant because it showed that the methodology the killer used in Mrs. Walters's death closely resembled that used in other crimes committed by Coleman and thus tended to show that Coleman was Mrs. Walters's killer. Accordingly, the admission of the evidence was not fundamentally unfair and did not violate Coleman's due process rights.
V.
Coleman alleges that the district court erred in denying him an evidentiary hearing to reexamine the factual issues resolved by the state courts because he was never afforded the opportunity to develop and litigate the factual bases for his federal constitutional claims. In a habeas proceeding, state court findings of fact enjoy a presumption of correctness. SeeRickman, 131 F.3d at 1153. In order for Coleman to prevail on this claim, he must rebut this presumption of correctness with clear and convincing evidence. See id. The record reveals that Coleman was given the opportunity to fully and fairly litigate his claims in the Ohio courts and failed to do so. Because Coleman has done nothing to rebut the presumption of correctness given to the factual issues resolved by the state court, his due process rights have not been violated by the denial of an evidentiary hearing in the federal habeas court.
VI.
Coleman raises a number of challenges to Ohio's capital punishment scheme both on its face and as applied to his case. The district court rejected each of Coleman's claims. We agree that the claims relating to Ohio's capital punishment scheme are either procedurally defaulted or are lacking in merit, substantially for the reasons given in the district court opinion.
VII.
Coleman also contends that he was denied the effective assistance of counsel during sentencing as guaranteed by the Sixth Amendment because his attorneys had a duty to investigate all possible mitigating factors, including those relating to Coleman's mental health background, and counsel breached this duty by failing to conduct a complete, independent investigation. We are not entirely convinced that Coleman properly raised this claim on direct appeal; indeed, we are inclined to think the claim was procedurally defaulted. However, the respondent stipulated that Coleman "may be deemed to have fairly presented [this] issue in state court," so we will address the merits of the claim.
Specifically, Coleman alleges four errors committed by his counsel at sentencing: (1) failure to demand a hearing and determination concerning both his competency to waive presentation of mitigation evidence and his refusal to cooperate with trial counsel in providing information for an appropriate investigation of mitigating factors; (2) failure to obtain the necessary reports and evaluations from the appropriate experts for use as evidence at the mitigation phase of the proceedings; (3) failure to raise the issue of the constitutional impropriety of Coleman effectively waiving the presentation of mitigation evidence at the sentencing phase of the proceedings; and (4) failure to request the appointment of an investigator, mitigation specialist, and/or psychologist to assist inthe investigation, preparation, and presentation of mitigating evidence.
To repeat, the Strickland Court articulated the following test for determining the effectiveness of counsel: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687.
When elaborating on the "prejudice" prong of this test, the Strickland Court stated:
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. . . .
[T]he appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness. The defendant 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.
Id. at 693-94 (citations omitted).
In this case, counsel proceeded with a so-called "residual doubt theory" because Coleman instructed him to do so. Residual doubt has been described as a theory that creates "a lingering uncertainty about facts, a state of mind that exists somewhere between 'beyond a reasonable doubt' and 'absolute certainty.'" Franklin v. Lynaugh, 487 U.S. 164, 188 (1988) (O'Connor, J., concurring). In State v. McGuire, 686 N.E.2d 1112 (Ohio 1997), the Ohio Supreme Court explained:
Residual or lingering doubt as to the defendant's guilt or innocence is not a factor relevant to the imposition of the death sentence because it has nothing to do with the nature and circumstances of the offense or the history, character, and background of the offender....
Our system requires that the prosecution prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty verdict by recommending mercy in case a mistake has occurred. Residual doubt casts a shadow over the reliability and credibility of our legal system in that it allows the jury to second-guess its verdict of guilt in the separate penalty phase of a murder trial. . . .
Residual doubt is not an acceptable mitigating factor under R.C. 2929.04(B), since it is irrelevant to the issue of whether the defendant should be sentenced to death.
Id. at 1123 (emphasis added) (citations omitted).
We recognized in Mapes v. Coyle, 171 F.3d 408 (6th Cir.), cert. denied, 528 U.S. 946 (1999):
Under the Ohio statute, a capital defendant found guilty of a death specification has to present some mitigating evidence in order to avoid the death penalty. If a jury has nothing to weigh against the aggravating circumstance, it almost certainly must find that the aggravating circumstance outweighs the (nonexistent)mitigating circumstances, and recommend death.
Id. at 426.
And, the Mapes court also stated that "when a client faces the prospect of being put to death unless counsel obtains and presents something in mitigation, minimal standards require some investigation." Id. Recently, in Carter v. Bell, 218 F.3d 581, 600 (6th Cir. 2000), and Skaggs v. Parker, 235 F.3d 261, 269, 271 (6th Cir. 2000), this court has held that failure to investigate possible mitigating factors and failure to present mitigating evidence at sentencing can constitute ineffective assistance of counsel under the Sixth Amendment.
But, this case is distinguishable from Mapes, Carter, and Skaggs because after the various options for proceeding in the sentencing phase of the case were explained to him, Coleman directed his counsel to proceed with the residual doubt theory, which did not include the introduction of mitigating evidence relating to Coleman's past mental history. Coleman now argues that his counsel was ineffective for following his instructions because counsel should have realized that he lacked the competence needed to choose an appropriate sentencing strategy.
It is well established that a criminal defendant may not be tried unless he is competent. Godinez v. Moran, 509 U.S. 389, 396 (1993). To be competent for trial, a defendant must have "sufficient ability to consult with his lawyers and a reasonable degree of rational and factual understanding of the proceedings against him." United States v. Ford, 184 F.3d 566, 580 (6th Cir. 1999), cert. denied, 528 U.S. 1161 (2000). Godinez clarified that the level of competence needed to waive counsel is the same as that needed to stand trial. See Godinez, 509 U.S. at 399.
We believe that the Godinez standard should also apply here to determine whether Coleman was competent enough to instruct his counsel as to the appropriate strategy to pursue at sentencing. As the district court recognized, "Coleman acted as co-counsel to the extent of addressing the jury, examining at least one witness, and participating in side-bench conferences between counsel and the judge, as well as presenting his own motions." (Internal quotation marks omitted.) Nothing in the trial record that memorializes Coleman's extensive participation in the trial suggests that he lacked a "rational and factual understanding" of the proceedings against him and the potential impact of utilizing a residual doubt theory at sentencing.
While recent decisions from this court have emphasized that failure to present mitigating evidence at sentencing may constitute ineffective assistance of counsel under the Sixth Amendment, counsel may nevertheless make a reasonable decision that investigation is not necessary. See Strickland, 466 U.S. at 691. Indeed, the Strickland Court noted that "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." Id. Coleman admits that he did not cooperate with counsel regarding the investigation and identification of mitigating evidence; imposed restrictions upon counsel; and refused to submit to further psychological or psychiatric testing. After presenting Coleman with his options, counsel proceeded with the residual doubt theory only at Coleman's direction. Coleman was competent to stand trial and competent to assist his lawyer with strategic choices. He repeatedly advised his lawyer to proceed with the residual doubt theory and not to investigate possible mitigating factors. An attorney's conduct is not deficient simply for following his client's instructions.See Jones, 463 U.S. at 751-52. The petitioner was not deprived of his Sixth Amendment right to effective assistance of counsel at sentencing under the Strickland standard.
VIII.
For the foregoing reasons, the judgment of the district court is AFFIRMED
244 F.3d 533
Alton Coleman, Petitioner-Appellant,
v.
Betty Mitchell, Warden, Respondent-Appellee.
Docket number: 98-3546
Federal Circuits, 6th Cir.
March 26, 2001
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. Nos. 94-00863, 94-00864, Sandra S. Beckwith, District Judge.
Before: MERRITT, RYAN, and BOGGS, Circuit Judges.
RYAN, Circuit Judge.
OPINION
Petitioner Alton Coleman has been convicted of murder in an Ohio state court and has been sentenced to death. He now appeals the district court's order dismissing his habeas corpus petition brought pursuant to 28 U.S.C. 2254. Coleman raises several assignments of error, the most serious of which are: (1) the district court erred when it held that Coleman had procedurally defaulted on 34 of the 50 claims raised in his habeas petition; (2) his constitutional due process rights were violated because of prosecutorial misconductand the introduction of "other acts" evidence; and (3) he was denied effective assistance of counsel at sentencing because his attorneys failed to fully investigate his background and mental health for purposes of offering evidence in mitigation. For the reasons discussed below, we will affirm the judgment of the district court.
I.
A.
On July 13, 1984, Coleman and his girlfriend, Debra D. Brown, arrived via bicycle in Norwood, Ohio, and stopped at the home of Harry and Marlene Walters around 9:30 a.m. After inquiring about a camping trailer the Walterses had for sale, Coleman and Brown were invited into the Walterses' home. Once inside, Coleman picked up a wooden candlestick and began striking Mr. Walters on the back of the head.
When the Walterses' daughter, Sheri, arrived home from work around 3:45 p.m. the same day, she found the house splattered with blood and her parents' motionless bodies lying at the bottom of the basement steps. Mr. Walters, barely breathing, had his hands handcuffed behind his back and his feet tied together with electrical cords. Mrs. Walters, already dead, had a bloody sheet covering her head. Her hands were bound behind her back and her feet were tied together with electrical cords. At trial, expert testimony indicated that Mrs. Walters had been struck on the head approximately 25 times. Twelve lacerations, several made with a pair of vise grips, covered her face and scalp. The back of her skull was smashed to pieces, and parts of both her skull and brain were missing. Mr. Walters survived the beating with some degree of brain damage.
Money, jewelry, shoes, and the family car had been stolen. Two bicycles were found abandoned in the Walterses' yard, and Coleman's fingerprints were found on a broken soda bottle in the living room.
Coleman and Brown have been implicated in several murders, rapes, kidnappings, and armed robberies that were committed in several Midwestern states during the summer of 1984.
B.
A Hamilton County grand jury indicted Coleman on the following five counts: (1) aggravated murder while committing aggravated burglary; (2) aggravated murder while committing aggravated robbery; (3) attempted aggravated murder; (4) aggravated robbery; and (5) aggravated burglary. Following trial, an Ohio jury returned a verdict of guilty on all charges and Coleman was sentenced to death for the aggravated murder of Mrs. Walters. Coleman's judgment of conviction and his death sentence were affirmed by the Ohio Court of Appeals, State v. Coleman, Nos. C-850340, B-842559A, 1986 WL 14070 (Ohio Ct. App. Dec. 10, 1986), and the Ohio Supreme Court, State v. Coleman, 525 N.E.2d 792 (Ohio 1988). The United States Supreme Court denied certiorari, Coleman v. Ohio, 488 U.S. 900 (1988).
Coleman then petitioned the trial court for post-conviction relief pursuant to Ohio Rev. Code Ann. § 2953.21. The trial court, without conducting an evidentiary hearing, adopted the state's proposed findings of fact and conclusions of law and denied relief. The Ohio Court of Appeals affirmed the trial court's decision, State v. Coleman, No. C-900811, 1993 WL 74756 (Ohio Ct. App. Mar. 17, 1993), and the Ohio Supreme Court dismissed Coleman's appeal, ruling that it lacked jurisdiction, State v. Coleman, 619 N.E.2d 419 (Ohio 1993).
On July 9, 1993, Coleman filed an Application for Delayed Reconsideration in the Ohio Court of Appeals alleging that his counsel on direct appeal had been constitutionally ineffective. The Court of Appeals denied the application, ruling that Coleman had failed to show good cause for filing itmore than 90 days after the court's judgment. See Ohio App. R. 26(B)(2)(b). On October 7, 1994, the Ohio Supreme Court affirmed the Court of Appeals' decision, denied Coleman's request for reconsideration, and revoked the stay of execution on Coleman's death sentence.
On January 6, 1995, Coleman filed his habeas corpus petition in federal court. He brought 50 assignments of error. The district court concluded that 34 of the assignments of error were procedurally barred because Coleman had failed to raise them on direct appeal in state court. The remaining assignments of error were found to be without merit.
On February 13, 1995, the district court granted Coleman's motion to consolidate three habeas cases: the sentence of death for the murder of Mrs. Walters; a second sentence of death from his conviction for another murder in Ohio; and a conviction for interstate kidnapping. On February 13, 1998, the district court denied, inter alia, Coleman's habeas corpuspetition pertaining to the murder of Mrs. Walters.
Coleman timely appealed the district court's judgment in the consolidated case, and this court then severed Coleman's appeal. Consequently, this appeal pertains only to the denial of habeas corpus relief in the capital case involving the death of Mrs. Walters.
II.
Because Coleman's habeas petition was filed on January 6, 1995, before the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), became effective on April 24, 1996, the pre-AEDPA standard of review applies. See 28 U.S.C. 2254 (1996). This court must review the district court's legal conclusions denovo and its findings of fact for clear error. Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir. 1997). And we must defer to state court factual findings pertaining to primary or historical facts, which are presumed correct and are rebuttable only by clear and convincing evidence. See id. State court determinations of law and mixed questions of law and fact should be reviewed de novo. Id.
III.
The district court concluded that Coleman had procedurally defaulted on 34 of the 50 claims raised in his habeaspetition because of failure to comply with Ohio's res judicata doctrine established in State v. Perry, 226 N.E.2d 104 (Ohio 1967). In Perry, the Ohio Supreme Court held:
Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment.
Id. at 108 (emphasis added).
Coleman contends that even if his claims are procedurally defaulted for not having been raised on direct appeal, his default is "excused" because his appellate counsel was constitutionally ineffective for failing to properly raise the issues in that appeal. Coleman cannot obtain federal habeas relief under 28 U.S.C. 2254 unless he has completely exhausted his available state court remedies by presenting his claims to the state's highest court. See Coleman v. Thompson, 501 U.S. 722 , 731 (1991). And, he cannot circumvent the exhaustion requirement by failing to comply with state procedural rules. See id.at 731-32; Combs v. Coyle, 205 F.3d 269, 274 (6th Cir.), cert. denied, 121 S. Ct. 623 (2000).
When determining whether a state petitioner's claim is barred from habeas review based on procedural default, this court must look to the following fourfactors. First, the court must determine that there is an applicable state procedural rule with which the petitioner failed to comply. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Second, the court must determine that the state rule is one that is "firmly established and regularly followed." Jones v. Toombs, 125 F.3d 945, 946 (6th Cir. 1997) (internal quotation marks and citation omitted). Third, the court must determine that the state procedural rule is an "adequate and independent" state ground on which the state may rely to foreclose review of the federal constitutional claim. Maupin, 785 F.2d at 138. If all three of these factors are met, the petitioner must then show there was "cause" for the default and "prejudice" resulting therefrom, or that a "miscarriage of justice" would result if the procedural default were enforced. See Wainwright v. Sykes, 433 U.S. 72, 84-87, 90-91 (1977). A state procedural bar will be held to bar federal habeas review only when the last reasoned decision of the state court concluded that the claims were barred by a state procedural rule. See Harris v. Reed, 489 U.S. 255, 263 (1989); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991).
In Edwards v. Carpenter, 529 U.S. 446, 120 S. Ct. 1587 (2000), the United States Supreme Court held that "an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted." Id. at 1592. In this case, the petitioner has procedurally defaulted on his claim that his appellate counsel was ineffective because, as we will explain, he failed to bring the claim in a timely manner as required by Ohio law, which is itself a procedural bar. Therefore, in order for Coleman to use his ineffective assistance of appellate counsel claim as "cause" to excuse his other procedurally defaulted claims, he must first meet the cause and prejudice standard for the ineffective assistance of appellate counsel claim itself. We conclude that Coleman has not carried this burden.
According to Coleman, the district court erred in declining to consider his ineffective assistance of appellate counsel claim on the ground that the claim was procedurally barred. As we have said, the Ohio Court of Appeals denied Coleman's effort to have his ineffective assistance of appellate counsel claim considered in his application for delayed reconsideration of his direct appeal. The Court of Appeals ruled that the application was untimely because it was not filed within 90 days of the original Court of Appeals decision, as required by Ohio App. R. 26(B). Coleman alleges that he asserted the claim in his petition for post-conviction relief in the state trial court in 1990, rather than in an application to reconsider his direct appeal, because there was no regularly followed procedure in the Ohio courts for raising such claims.
In February 1992, after conclusion of his direct appeals to the Ohio Court of Appeals and Ohio Supreme Court, and during the pendency of Coleman's appeal of the denial of his post-conviction petition, the Ohio Supreme Court decidedState v. Murnahan, 584 N.E.2d 1204 (Ohio 1992). The Murnahan court held that ineffective assistance of appellate counsel claims should be raised in a delayed motion for reconsideration before the Ohio Court of Appeals and not in a petition for post-conviction relief.
Coleman waited 16 months after Murnahan was decided before filing his delayed motion for reconsideration in the Court of Appeals on July 9, 1993, and the Court of Appeals dismissed the application because it was more than 90 days after the court's 1986 decision and Coleman had not shown good cause for the delay, as required by Ohio App. R. 26(B).
On July 1, 1993, Ohio App. R. 26(B) was amended to provide, in pertinent part:
(B)Application for reopening(1)A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.
(2)An application for reopening shall contain all of the following:
. . . . (b)A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment.
Ohio App. R. 26(B).
While Coleman's application was filed prior to the amendment's effective date, the amendment governs further proceedings in pending actions, unless it is shown that its application would work an injustice. Coleman has not made this showing.
Coleman argues that the 90-day filing period that he missed should have been "tolled" due to the fact that the Ohio Court of Appeals had not yet ruled on his petition for post-conviction relief, which included a claim of ineffective assistance of appellate counsel. Although he is not entirely clear about it, Coleman seems to be arguing there was not a firmly established and regularly followed procedural rule for raising ineffective assistance of appellate counsel claims in 1986 when his appeal was decided in the Ohio Court of Appeals, and therefore, no "adequate and independent" state ground existed to foreclose review of the federal constitutional claim. We do not find Coleman's argument persuasive.
Before the Ohio Supreme Court's decision in Murnahan, it was well established in the Ohio First Appellate District, the appellate district in which Coleman's appeal was heard, that claims of ineffective assistance of appellate counsel were to be raised in a delayed motion for reconsideration and were not cognizable in state post-conviction proceedings. See State v. Rone, Nos. C-820322, B-784088, 1983 WL 8877 (Ohio Ct. App. June 1, 1983) (unpublished disposition). Even assuming Coleman was confused by the proper forum in which to initially bring his claim, he does not explain why he did not ask the court to remove his ineffective appellate counsel claim from his post-conviction petition without prejudice in order to raise it in a timely manner in a Murnahan motion or why he waited 16 months after Murnahan was decided to raise the claim.
When a habeas petitioner has failed to show cause for not asserting his ineffective assistance of appellate counsel claim properly in the Ohio courts, a federal court may not reach the merits of the habeas claim unless the petitioner can show that refusal to consider his claim would result in a fundamental miscarriage of justice. The fundamental miscarriage of justice exception requires a showing that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995). Coleman has not made this showing and does not claim to have done so.
Even if Coleman could offer an appropriate excuse for failing to bring his ineffective assistance of appellate counsel claim in a proper and timely manner, the claim is meritless. The Edwards Court recently reemphasized that "[n]ot just any deficiency in counsel's performance" is sufficient to excuse procedural default; "the assistance must have been so ineffective as to violate the Federal Constitution." Edwards, 120 S. Ct. at 1591. The proper ineffective assistance of counsel standard was articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):
First, the defendant must show that counsel's performance was deficient.This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687.
On direct appeal to the Ohio First Appellate District, Coleman's appellate counsel raised 15 assignments of error and on direct appeal to the Ohio Supreme Court, he asserted 11 assignments of error. After a careful review of the record, we are in agreement with the district court that Coleman's appellate counsel was not deficient for refusing to raise approximately 60 additional claims as Coleman suggests. Coleman does not have a constitutional right to have his counsel press nonfrivolous points if counsel decides as a matter of professional judgment not to press those points. See Jones v. Barnes, 463 U.S. 745, 750-51 (1983).
In conclusion, because Coleman's ineffective assistance of appellate counsel claim is itself procedurally defaulted and he has not shown "cause and prejudice" for that default, Coleman's ineffective assistance claim cannot serve as "cause" to excuse his 34 procedurally defaulted claims.
IV.
Coleman next claims that his due process rights were violated due to misconduct by the prosecutor.
A.
Specifically, Coleman argues that the prosecution failed to disclose the existence of the following: (1) an interview conducted by the Federal Bureau of Investigation (FBI) on July 20, 1984; (2) items seized by the FBI from Coleman's grandmother's home; (3) the identity of Linnroy Bottoson, who allegedly knew of Coleman's whereabouts; (4)Coleman's alleged efforts to surrender; (5) the prosecution's intention to persuade Debra Brown to cooperate with them; (6) any exculpatory evidence concerning or relating to Coleman; (7) psychological, psychiatric, and/or medical profiles, reports, evaluations, and summaries concerning Coleman and/or Brown; (8) background files, reports, information, and summaries concerning Coleman and/or members of his family; (9) background information regarding Coleman; and (10) any mitigating evidence concerning Coleman. We agree with the district court that Coleman procedurally defaulted on any claim related to the seventh item because he failed to raise it on direct appeal, and the state court did not consider it when ruling on Coleman's post-conviction petition.
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." Id. at 87. "[T]here is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler v. Greene, 527 U.S. 263, 281 (1999). Furthermore, there is no Brady violation if the defendant knew or should have known the essential facts necessary to obtain the information in question. See Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998), cert. denied, 528 U.S. 842 (1999).
Without deciding that the items described by Coleman were withheld from him as he alleges, we are satisfied that even if they had been supplied to him, theverdict would have been the same because the quantity and quality of the evidence introduced to prove Coleman's guilt was overwhelming. Consequently, Coleman is unable to show that he was "prejudiced" by not having the information, and there is no Brady violation.
B.
Coleman also claims that he was denied due process of law because the state introduced evidence of "other acts," including murder, for which he was not on trial.
"Other acts" evidence may be introduced in certain situations pursuant to Ohio Rev. Code Ann. § 2945.59 and Ohio Evid. R. 404(B). Section 2945.59 provides:
In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
Ohio Rev. Code Ann. § 2945.59.
And, Ohio Evid. R. 404(B) specifies:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ohio Evid. R. 404(B).
Coleman contends that the "other acts" evidence introduced at trial linking him to other murder cases violated his right to due process and a fair trial because the evidence was dissimilar to the crime involving Mrs. Walters and irrelevant to the issues of scheme, motive, intent, system, or absence of mistake or accident.
The respondent answers that the "other acts" evidence was admissible because of its similarity to the case involving Mrs. Walters since it shows that Coleman was involved in other cases involving: (1) elderly couples; (2) use of deception to enter the victim's home; (3) use of handcuffs; (4) use of electrical cords to tie the victim's hands and feet; (5) the incapacitation of the victim's telephone; (6) the theft of the victim's motor vehicle; and (7) a conspiracy with Debra Brown. Although the respondent's argument is not entirely clear, we take it to be that the "other acts" evidence was introduced to show that Mrs. Walters's killer used the same modus operandi that Coleman used in the other killings--his "signature," so to speak--and therefore, that the "other acts" evidence was admissible as tending to prove Coleman's identity as the killer in this case. This is, of course, a familiar justification for the introduction of "other acts" evidence pursuant to Ohio Rev. Code Ann. § 2945.59 and Ohio Evid. R. 404(B).
Because this is an appeal from a habeas corpus decision and not an appeal of Coleman's state conviction, we do not pass upon "errors in the application of state law, especially rulings regarding the admission or exclusion of evidence." Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1998). A state court evidentiary ruling will be reviewed by a federal habeas court only if it were so fundamentally unfair as to violate the petitioner's due process rights. See Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
The trial court's explanation for the admission of the "other acts" evidence included:
In many of these other offenses, the evidence showed that the defendant used the same method of operation;that he would handcuff his victims and the majority of his assaults on their persons would occur after they were bound and defenseless. It should be noted that all of the victims of other crimes by the defendant who testified in this trial were elderly people, many of them frail, and most all of them incapable of defending themselves against the defendant's attack and most certainly when they were at the disadvantage of having their hands bound with handcuffs, electrical cord or similar ligatures.
We agree with the trial court that the "other acts" evidence was relevant because it showed that the methodology the killer used in Mrs. Walters's death closely resembled that used in other crimes committed by Coleman and thus tended to show that Coleman was Mrs. Walters's killer. Accordingly, the admission of the evidence was not fundamentally unfair and did not violate Coleman's due process rights.
V.
Coleman alleges that the district court erred in denying him an evidentiary hearing to reexamine the factual issues resolved by the state courts because he was never afforded the opportunity to develop and litigate the factual bases for his federal constitutional claims. In a habeas proceeding, state court findings of fact enjoy a presumption of correctness. SeeRickman, 131 F.3d at 1153. In order for Coleman to prevail on this claim, he must rebut this presumption of correctness with clear and convincing evidence. See id. The record reveals that Coleman was given the opportunity to fully and fairly litigate his claims in the Ohio courts and failed to do so. Because Coleman has done nothing to rebut the presumption of correctness given to the factual issues resolved by the state court, his due process rights have not been violated by the denial of an evidentiary hearing in the federal habeas court.
VI.
Coleman raises a number of challenges to Ohio's capital punishment scheme both on its face and as applied to his case. The district court rejected each of Coleman's claims. We agree that the claims relating to Ohio's capital punishment scheme are either procedurally defaulted or are lacking in merit, substantially for the reasons given in the district court opinion.
VII.
Coleman also contends that he was denied the effective assistance of counsel during sentencing as guaranteed by the Sixth Amendment because his attorneys had a duty to investigate all possible mitigating factors, including those relating to Coleman's mental health background, and counsel breached this duty by failing to conduct a complete, independent investigation. We are not entirely convinced that Coleman properly raised this claim on direct appeal; indeed, we are inclined to think the claim was procedurally defaulted. However, the respondent stipulated that Coleman "may be deemed to have fairly presented [this] issue in state court," so we will address the merits of the claim.
Specifically, Coleman alleges four errors committed by his counsel at sentencing: (1) failure to demand a hearing and determination concerning both his competency to waive presentation of mitigation evidence and his refusal to cooperate with trial counsel in providing information for an appropriate investigation of mitigating factors; (2) failure to obtain the necessary reports and evaluations from the appropriate experts for use as evidence at the mitigation phase of the proceedings; (3) failure to raise the issue of the constitutional impropriety of Coleman effectively waiving the presentation of mitigation evidence at the sentencing phase of the proceedings; and (4) failure to request the appointment of an investigator, mitigation specialist, and/or psychologist to assist inthe investigation, preparation, and presentation of mitigating evidence.
To repeat, the Strickland Court articulated the following test for determining the effectiveness of counsel: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687.
When elaborating on the "prejudice" prong of this test, the Strickland Court stated:
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. . . .
[T]he appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness. The defendant 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.
Id. at 693-94 (citations omitted).
In this case, counsel proceeded with a so-called "residual doubt theory" because Coleman instructed him to do so. Residual doubt has been described as a theory that creates "a lingering uncertainty about facts, a state of mind that exists somewhere between 'beyond a reasonable doubt' and 'absolute certainty.'" Franklin v. Lynaugh, 487 U.S. 164, 188 (1988) (O'Connor, J., concurring). In State v. McGuire, 686 N.E.2d 1112 (Ohio 1997), the Ohio Supreme Court explained:
Residual or lingering doubt as to the defendant's guilt or innocence is not a factor relevant to the imposition of the death sentence because it has nothing to do with the nature and circumstances of the offense or the history, character, and background of the offender....
Our system requires that the prosecution prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty verdict by recommending mercy in case a mistake has occurred. Residual doubt casts a shadow over the reliability and credibility of our legal system in that it allows the jury to second-guess its verdict of guilt in the separate penalty phase of a murder trial. . . .
Residual doubt is not an acceptable mitigating factor under R.C. 2929.04(B), since it is irrelevant to the issue of whether the defendant should be sentenced to death.
Id. at 1123 (emphasis added) (citations omitted).
We recognized in Mapes v. Coyle, 171 F.3d 408 (6th Cir.), cert. denied, 528 U.S. 946 (1999):
Under the Ohio statute, a capital defendant found guilty of a death specification has to present some mitigating evidence in order to avoid the death penalty. If a jury has nothing to weigh against the aggravating circumstance, it almost certainly must find that the aggravating circumstance outweighs the (nonexistent)mitigating circumstances, and recommend death.
Id. at 426.
And, the Mapes court also stated that "when a client faces the prospect of being put to death unless counsel obtains and presents something in mitigation, minimal standards require some investigation." Id. Recently, in Carter v. Bell, 218 F.3d 581, 600 (6th Cir. 2000), and Skaggs v. Parker, 235 F.3d 261, 269, 271 (6th Cir. 2000), this court has held that failure to investigate possible mitigating factors and failure to present mitigating evidence at sentencing can constitute ineffective assistance of counsel under the Sixth Amendment.
But, this case is distinguishable from Mapes, Carter, and Skaggs because after the various options for proceeding in the sentencing phase of the case were explained to him, Coleman directed his counsel to proceed with the residual doubt theory, which did not include the introduction of mitigating evidence relating to Coleman's past mental history. Coleman now argues that his counsel was ineffective for following his instructions because counsel should have realized that he lacked the competence needed to choose an appropriate sentencing strategy.
It is well established that a criminal defendant may not be tried unless he is competent. Godinez v. Moran, 509 U.S. 389, 396 (1993). To be competent for trial, a defendant must have "sufficient ability to consult with his lawyers and a reasonable degree of rational and factual understanding of the proceedings against him." United States v. Ford, 184 F.3d 566, 580 (6th Cir. 1999), cert. denied, 528 U.S. 1161 (2000). Godinez clarified that the level of competence needed to waive counsel is the same as that needed to stand trial. See Godinez, 509 U.S. at 399.
We believe that the Godinez standard should also apply here to determine whether Coleman was competent enough to instruct his counsel as to the appropriate strategy to pursue at sentencing. As the district court recognized, "Coleman acted as co-counsel to the extent of addressing the jury, examining at least one witness, and participating in side-bench conferences between counsel and the judge, as well as presenting his own motions." (Internal quotation marks omitted.) Nothing in the trial record that memorializes Coleman's extensive participation in the trial suggests that he lacked a "rational and factual understanding" of the proceedings against him and the potential impact of utilizing a residual doubt theory at sentencing.
While recent decisions from this court have emphasized that failure to present mitigating evidence at sentencing may constitute ineffective assistance of counsel under the Sixth Amendment, counsel may nevertheless make a reasonable decision that investigation is not necessary. See Strickland, 466 U.S. at 691. Indeed, the Strickland Court noted that "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." Id. Coleman admits that he did not cooperate with counsel regarding the investigation and identification of mitigating evidence; imposed restrictions upon counsel; and refused to submit to further psychological or psychiatric testing. After presenting Coleman with his options, counsel proceeded with the residual doubt theory only at Coleman's direction. Coleman was competent to stand trial and competent to assist his lawyer with strategic choices. He repeatedly advised his lawyer to proceed with the residual doubt theory and not to investigate possible mitigating factors. An attorney's conduct is not deficient simply for following his client's instructions.See Jones, 463 U.S. at 751-52. The petitioner was not deprived of his Sixth Amendment right to effective assistance of counsel at sentencing under the Strickland standard.
VIII.
For the foregoing reasons, the judgment of the district court is AFFIRMED
244 F.3d 533
Alton Coleman, Petitioner-Appellant,
v.
Betty Mitchell, Warden, Respondent-Appellee.
Docket number: 98-3546
Federal Circuits, 6th Cir.
March 26, 2001
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. Nos. 94-00863, 94-00864, Sandra S. Beckwith, District Judge.
Before: MERRITT, RYAN, and BOGGS, Circuit Judges.
RYAN, Circuit Judge.
OPINION
Petitioner Alton Coleman has been convicted of murder in an Ohio state court and has been sentenced to death. He now appeals the district court's order dismissing his habeas corpus petition brought pursuant to 28 U.S.C. 2254. Coleman raises several assignments of error, the most serious of which are: (1) the district court erred when it held that Coleman had procedurally defaulted on 34 of the 50 claims raised in his habeas petition; (2) his constitutional due process rights were violated because of prosecutorial misconductand the introduction of "other acts" evidence; and (3) he was denied effective assistance of counsel at sentencing because his attorneys failed to fully investigate his background and mental health for purposes of offering evidence in mitigation. For the reasons discussed below, we will affirm the judgment of the district court.
I.
A.
On July 13, 1984, Coleman and his girlfriend, Debra D. Brown, arrived via bicycle in Norwood, Ohio, and stopped at the home of Harry and Marlene Walters around 9:30 a.m. After inquiring about a camping trailer the Walterses had for sale, Coleman and Brown were invited into the Walterses' home. Once inside, Coleman picked up a wooden candlestick and began striking Mr. Walters on the back of the head.
When the Walterses' daughter, Sheri, arrived home from work around 3:45 p.m. the same day, she found the house splattered with blood and her parents' motionless bodies lying at the bottom of the basement steps. Mr. Walters, barely breathing, had his hands handcuffed behind his back and his feet tied together with electrical cords. Mrs. Walters, already dead, had a bloody sheet covering her head. Her hands were bound behind her back and her feet were tied together with electrical cords. At trial, expert testimony indicated that Mrs. Walters had been struck on the head approximately 25 times. Twelve lacerations, several made with a pair of vise grips, covered her face and scalp. The back of her skull was smashed to pieces, and parts of both her skull and brain were missing. Mr. Walters survived the beating with some degree of brain damage.
Money, jewelry, shoes, and the family car had been stolen. Two bicycles were found abandoned in the Walterses' yard, and Coleman's fingerprints were found on a broken soda bottle in the living room.
Coleman and Brown have been implicated in several murders, rapes, kidnappings, and armed robberies that were committed in several Midwestern states during the summer of 1984.
B.
A Hamilton County grand jury indicted Coleman on the following five counts: (1) aggravated murder while committing aggravated burglary; (2) aggravated murder while committing aggravated robbery; (3) attempted aggravated murder; (4) aggravated robbery; and (5) aggravated burglary. Following trial, an Ohio jury returned a verdict of guilty on all charges and Coleman was sentenced to death for the aggravated murder of Mrs. Walters. Coleman's judgment of conviction and his death sentence were affirmed by the Ohio Court of Appeals, State v. Coleman, Nos. C-850340, B-842559A, 1986 WL 14070 (Ohio Ct. App. Dec. 10, 1986), and the Ohio Supreme Court, State v. Coleman, 525 N.E.2d 792 (Ohio 1988). The United States Supreme Court denied certiorari, Coleman v. Ohio, 488 U.S. 900 (1988).
Coleman then petitioned the trial court for post-conviction relief pursuant to Ohio Rev. Code Ann. § 2953.21. The trial court, without conducting an evidentiary hearing, adopted the state's proposed findings of fact and conclusions of law and denied relief. The Ohio Court of Appeals affirmed the trial court's decision, State v. Coleman, No. C-900811, 1993 WL 74756 (Ohio Ct. App. Mar. 17, 1993), and the Ohio Supreme Court dismissed Coleman's appeal, ruling that it lacked jurisdiction, State v. Coleman, 619 N.E.2d 419 (Ohio 1993).
On July 9, 1993, Coleman filed an Application for Delayed Reconsideration in the Ohio Court of Appeals alleging that his counsel on direct appeal had been constitutionally ineffective. The Court of Appeals denied the application, ruling that Coleman had failed to show good cause for filing itmore than 90 days after the court's judgment. See Ohio App. R. 26(B)(2)(b). On October 7, 1994, the Ohio Supreme Court affirmed the Court of Appeals' decision, denied Coleman's request for reconsideration, and revoked the stay of execution on Coleman's death sentence.
On January 6, 1995, Coleman filed his habeas corpus petition in federal court. He brought 50 assignments of error. The district court concluded that 34 of the assignments of error were procedurally barred because Coleman had failed to raise them on direct appeal in state court. The remaining assignments of error were found to be without merit.
On February 13, 1995, the district court granted Coleman's motion to consolidate three habeas cases: the sentence of death for the murder of Mrs. Walters; a second sentence of death from his conviction for another murder in Ohio; and a conviction for interstate kidnapping. On February 13, 1998, the district court denied, inter alia, Coleman's habeas corpuspetition pertaining to the murder of Mrs. Walters.
Coleman timely appealed the district court's judgment in the consolidated case, and this court then severed Coleman's appeal. Consequently, this appeal pertains only to the denial of habeas corpus relief in the capital case involving the death of Mrs. Walters.
II.
Because Coleman's habeas petition was filed on January 6, 1995, before the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), became effective on April 24, 1996, the pre-AEDPA standard of review applies. See 28 U.S.C. 2254 (1996). This court must review the district court's legal conclusions denovo and its findings of fact for clear error. Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir. 1997). And we must defer to state court factual findings pertaining to primary or historical facts, which are presumed correct and are rebuttable only by clear and convincing evidence. See id. State court determinations of law and mixed questions of law and fact should be reviewed de novo. Id.
III.
The district court concluded that Coleman had procedurally defaulted on 34 of the 50 claims raised in his habeaspetition because of failure to comply with Ohio's res judicata doctrine established in State v. Perry, 226 N.E.2d 104 (Ohio 1967). In Perry, the Ohio Supreme Court held:
Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment.
Id. at 108 (emphasis added).
Coleman contends that even if his claims are procedurally defaulted for not having been raised on direct appeal, his default is "excused" because his appellate counsel was constitutionally ineffective for failing to properly raise the issues in that appeal. Coleman cannot obtain federal habeas relief under 28 U.S.C. 2254 unless he has completely exhausted his available state court remedies by presenting his claims to the state's highest court. See Coleman v. Thompson, 501 U.S. 722 , 731 (1991). And, he cannot circumvent the exhaustion requirement by failing to comply with state procedural rules. See id.at 731-32; Combs v. Coyle, 205 F.3d 269, 274 (6th Cir.), cert. denied, 121 S. Ct. 623 (2000).
When determining whether a state petitioner's claim is barred from habeas review based on procedural default, this court must look to the following fourfactors. First, the court must determine that there is an applicable state procedural rule with which the petitioner failed to comply. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Second, the court must determine that the state rule is one that is "firmly established and regularly followed." Jones v. Toombs, 125 F.3d 945, 946 (6th Cir. 1997) (internal quotation marks and citation omitted). Third, the court must determine that the state procedural rule is an "adequate and independent" state ground on which the state may rely to foreclose review of the federal constitutional claim. Maupin, 785 F.2d at 138. If all three of these factors are met, the petitioner must then show there was "cause" for the default and "prejudice" resulting therefrom, or that a "miscarriage of justice" would result if the procedural default were enforced. See Wainwright v. Sykes, 433 U.S. 72, 84-87, 90-91 (1977). A state procedural bar will be held to bar federal habeas review only when the last reasoned decision of the state court concluded that the claims were barred by a state procedural rule. See Harris v. Reed, 489 U.S. 255, 263 (1989); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991).
In Edwards v. Carpenter, 529 U.S. 446, 120 S. Ct. 1587 (2000), the United States Supreme Court held that "an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted." Id. at 1592. In this case, the petitioner has procedurally defaulted on his claim that his appellate counsel was ineffective because, as we will explain, he failed to bring the claim in a timely manner as required by Ohio law, which is itself a procedural bar. Therefore, in order for Coleman to use his ineffective assistance of appellate counsel claim as "cause" to excuse his other procedurally defaulted claims, he must first meet the cause and prejudice standard for the ineffective assistance of appellate counsel claim itself. We conclude that Coleman has not carried this burden.
According to Coleman, the district court erred in declining to consider his ineffective assistance of appellate counsel claim on the ground that the claim was procedurally barred. As we have said, the Ohio Court of Appeals denied Coleman's effort to have his ineffective assistance of appellate counsel claim considered in his application for delayed reconsideration of his direct appeal. The Court of Appeals ruled that the application was untimely because it was not filed within 90 days of the original Court of Appeals decision, as required by Ohio App. R. 26(B). Coleman alleges that he asserted the claim in his petition for post-conviction relief in the state trial court in 1990, rather than in an application to reconsider his direct appeal, because there was no regularly followed procedure in the Ohio courts for raising such claims.
In February 1992, after conclusion of his direct appeals to the Ohio Court of Appeals and Ohio Supreme Court, and during the pendency of Coleman's appeal of the denial of his post-conviction petition, the Ohio Supreme Court decidedState v. Murnahan, 584 N.E.2d 1204 (Ohio 1992). The Murnahan court held that ineffective assistance of appellate counsel claims should be raised in a delayed motion for reconsideration before the Ohio Court of Appeals and not in a petition for post-conviction relief.
Coleman waited 16 months after Murnahan was decided before filing his delayed motion for reconsideration in the Court of Appeals on July 9, 1993, and the Court of Appeals dismissed the application because it was more than 90 days after the court's 1986 decision and Coleman had not shown good cause for the delay, as required by Ohio App. R. 26(B).
On July 1, 1993, Ohio App. R. 26(B) was amended to provide, in pertinent part:
(B)Application for reopening(1)A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.
(2)An application for reopening shall contain all of the following:
. . . . (b)A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment.
Ohio App. R. 26(B).
While Coleman's application was filed prior to the amendment's effective date, the amendment governs further proceedings in pending actions, unless it is shown that its application would work an injustice. Coleman has not made this showing.
Coleman argues that the 90-day filing period that he missed should have been "tolled" due to the fact that the Ohio Court of Appeals had not yet ruled on his petition for post-conviction relief, which included a claim of ineffective assistance of appellate counsel. Although he is not entirely clear about it, Coleman seems to be arguing there was not a firmly established and regularly followed procedural rule for raising ineffective assistance of appellate counsel claims in 1986 when his appeal was decided in the Ohio Court of Appeals, and therefore, no "adequate and independent" state ground existed to foreclose review of the federal constitutional claim. We do not find Coleman's argument persuasive.
Before the Ohio Supreme Court's decision in Murnahan, it was well established in the Ohio First Appellate District, the appellate district in which Coleman's appeal was heard, that claims of ineffective assistance of appellate counsel were to be raised in a delayed motion for reconsideration and were not cognizable in state post-conviction proceedings. See State v. Rone, Nos. C-820322, B-784088, 1983 WL 8877 (Ohio Ct. App. June 1, 1983) (unpublished disposition). Even assuming Coleman was confused by the proper forum in which to initially bring his claim, he does not explain why he did not ask the court to remove his ineffective appellate counsel claim from his post-conviction petition without prejudice in order to raise it in a timely manner in a Murnahan motion or why he waited 16 months after Murnahan was decided to raise the claim.
When a habeas petitioner has failed to show cause for not asserting his ineffective assistance of appellate counsel claim properly in the Ohio courts, a federal court may not reach the merits of the habeas claim unless the petitioner can show that refusal to consider his claim would result in a fundamental miscarriage of justice. The fundamental miscarriage of justice exception requires a showing that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995). Coleman has not made this showing and does not claim to have done so.
Even if Coleman could offer an appropriate excuse for failing to bring his ineffective assistance of appellate counsel claim in a proper and timely manner, the claim is meritless. The Edwards Court recently reemphasized that "[n]ot just any deficiency in counsel's performance" is sufficient to excuse procedural default; "the assistance must have been so ineffective as to violate the Federal Constitution." Edwards, 120 S. Ct. at 1591. The proper ineffective assistance of counsel standard was articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):
First, the defendant must show that counsel's performance was deficient.This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687.
On direct appeal to the Ohio First Appellate District, Coleman's appellate counsel raised 15 assignments of error and on direct appeal to the Ohio Supreme Court, he asserted 11 assignments of error. After a careful review of the record, we are in agreement with the district court that Coleman's appellate counsel was not deficient for refusing to raise approximately 60 additional claims as Coleman suggests. Coleman does not have a constitutional right to have his counsel press nonfrivolous points if counsel decides as a matter of professional judgment not to press those points. See Jones v. Barnes, 463 U.S. 745, 750-51 (1983).
In conclusion, because Coleman's ineffective assistance of appellate counsel claim is itself procedurally defaulted and he has not shown "cause and prejudice" for that default, Coleman's ineffective assistance claim cannot serve as "cause" to excuse his 34 procedurally defaulted claims.
IV.
Coleman next claims that his due process rights were violated due to misconduct by the prosecutor.
A.
Specifically, Coleman argues that the prosecution failed to disclose the existence of the following: (1) an interview conducted by the Federal Bureau of Investigation (FBI) on July 20, 1984; (2) items seized by the FBI from Coleman's grandmother's home; (3) the identity of Linnroy Bottoson, who allegedly knew of Coleman's whereabouts; (4)Coleman's alleged efforts to surrender; (5) the prosecution's intention to persuade Debra Brown to cooperate with them; (6) any exculpatory evidence concerning or relating to Coleman; (7) psychological, psychiatric, and/or medical profiles, reports, evaluations, and summaries concerning Coleman and/or Brown; (8) background files, reports, information, and summaries concerning Coleman and/or members of his family; (9) background information regarding Coleman; and (10) any mitigating evidence concerning Coleman. We agree with the district court that Coleman procedurally defaulted on any claim related to the seventh item because he failed to raise it on direct appeal, and the state court did not consider it when ruling on Coleman's post-conviction petition.
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." Id. at 87. "[T]here is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler v. Greene, 527 U.S. 263, 281 (1999). Furthermore, there is no Brady violation if the defendant knew or should have known the essential facts necessary to obtain the information in question. See Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998), cert. denied, 528 U.S. 842 (1999).
Without deciding that the items described by Coleman were withheld from him as he alleges, we are satisfied that even if they had been supplied to him, theverdict would have been the same because the quantity and quality of the evidence introduced to prove Coleman's guilt was overwhelming. Consequently, Coleman is unable to show that he was "prejudiced" by not having the information, and there is no Brady violation.
B.
Coleman also claims that he was denied due process of law because the state introduced evidence of "other acts," including murder, for which he was not on trial.
"Other acts" evidence may be introduced in certain situations pursuant to Ohio Rev. Code Ann. § 2945.59 and Ohio Evid. R. 404(B). Section 2945.59 provides:
In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
Ohio Rev. Code Ann. § 2945.59.
And, Ohio Evid. R. 404(B) specifies:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ohio Evid. R. 404(B).
Coleman contends that the "other acts" evidence introduced at trial linking him to other murder cases violated his right to due process and a fair trial because the evidence was dissimilar to the crime involving Mrs. Walters and irrelevant to the issues of scheme, motive, intent, system, or absence of mistake or accident.
The respondent answers that the "other acts" evidence was admissible because of its similarity to the case involving Mrs. Walters since it shows that Coleman was involved in other cases involving: (1) elderly couples; (2) use of deception to enter the victim's home; (3) use of handcuffs; (4) use of electrical cords to tie the victim's hands and feet; (5) the incapacitation of the victim's telephone; (6) the theft of the victim's motor vehicle; and (7) a conspiracy with Debra Brown. Although the respondent's argument is not entirely clear, we take it to be that the "other acts" evidence was introduced to show that Mrs. Walters's killer used the same modus operandi that Coleman used in the other killings--his "signature," so to speak--and therefore, that the "other acts" evidence was admissible as tending to prove Coleman's identity as the killer in this case. This is, of course, a familiar justification for the introduction of "other acts" evidence pursuant to Ohio Rev. Code Ann. § 2945.59 and Ohio Evid. R. 404(B).
Because this is an appeal from a habeas corpus decision and not an appeal of Coleman's state conviction, we do not pass upon "errors in the application of state law, especially rulings regarding the admission or exclusion of evidence." Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1998). A state court evidentiary ruling will be reviewed by a federal habeas court only if it were so fundamentally unfair as to violate the petitioner's due process rights. See Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
The trial court's explanation for the admission of the "other acts" evidence included:
In many of these other offenses, the evidence showed that the defendant used the same method of operation;that he would handcuff his victims and the majority of his assaults on their persons would occur after they were bound and defenseless. It should be noted that all of the victims of other crimes by the defendant who testified in this trial were elderly people, many of them frail, and most all of them incapable of defending themselves against the defendant's attack and most certainly when they were at the disadvantage of having their hands bound with handcuffs, electrical cord or similar ligatures.
We agree with the trial court that the "other acts" evidence was relevant because it showed that the methodology the killer used in Mrs. Walters's death closely resembled that used in other crimes committed by Coleman and thus tended to show that Coleman was Mrs. Walters's killer. Accordingly, the admission of the evidence was not fundamentally unfair and did not violate Coleman's due process rights.
V.
Coleman alleges that the district court erred in denying him an evidentiary hearing to reexamine the factual issues resolved by the state courts because he was never afforded the opportunity to develop and litigate the factual bases for his federal constitutional claims. In a habeas proceeding, state court findings of fact enjoy a presumption of correctness. SeeRickman, 131 F.3d at 1153. In order for Coleman to prevail on this claim, he must rebut this presumption of correctness with clear and convincing evidence. See id. The record reveals that Coleman was given the opportunity to fully and fairly litigate his claims in the Ohio courts and failed to do so. Because Coleman has done nothing to rebut the presumption of correctness given to the factual issues resolved by the state court, his due process rights have not been violated by the denial of an evidentiary hearing in the federal habeas court.
VI.
Coleman raises a number of challenges to Ohio's capital punishment scheme both on its face and as applied to his case. The district court rejected each of Coleman's claims. We agree that the claims relating to Ohio's capital punishment scheme are either procedurally defaulted or are lacking in merit, substantially for the reasons given in the district court opinion.
VII.
Coleman also contends that he was denied the effective assistance of counsel during sentencing as guaranteed by the Sixth Amendment because his attorneys had a duty to investigate all possible mitigating factors, including those relating to Coleman's mental health background, and counsel breached this duty by failing to conduct a complete, independent investigation. We are not entirely convinced that Coleman properly raised this claim on direct appeal; indeed, we are inclined to think the claim was procedurally defaulted. However, the respondent stipulated that Coleman "may be deemed to have fairly presented [this] issue in state court," so we will address the merits of the claim.
Specifically, Coleman alleges four errors committed by his counsel at sentencing: (1) failure to demand a hearing and determination concerning both his competency to waive presentation of mitigation evidence and his refusal to cooperate with trial counsel in providing information for an appropriate investigation of mitigating factors; (2) failure to obtain the necessary reports and evaluations from the appropriate experts for use as evidence at the mitigation phase of the proceedings; (3) failure to raise the issue of the constitutional impropriety of Coleman effectively waiving the presentation of mitigation evidence at the sentencing phase of the proceedings; and (4) failure to request the appointment of an investigator, mitigation specialist, and/or psychologist to assist inthe investigation, preparation, and presentation of mitigating evidence.
To repeat, the Strickland Court articulated the following test for determining the effectiveness of counsel: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687.
When elaborating on the "prejudice" prong of this test, the Strickland Court stated:
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. . . .
[T]he appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness. The defendant 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.
Id. at 693-94 (citations omitted).
In this case, counsel proceeded with a so-called "residual doubt theory" because Coleman instructed him to do so. Residual doubt has been described as a theory that creates "a lingering uncertainty about facts, a state of mind that exists somewhere between 'beyond a reasonable doubt' and 'absolute certainty.'" Franklin v. Lynaugh, 487 U.S. 164, 188 (1988) (O'Connor, J., concurring). In State v. McGuire, 686 N.E.2d 1112 (Ohio 1997), the Ohio Supreme Court explained:
Residual or lingering doubt as to the defendant's guilt or innocence is not a factor relevant to the imposition of the death sentence because it has nothing to do with the nature and circumstances of the offense or the history, character, and background of the offender....
Our system requires that the prosecution prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty verdict by recommending mercy in case a mistake has occurred. Residual doubt casts a shadow over the reliability and credibility of our legal system in that it allows the jury to second-guess its verdict of guilt in the separate penalty phase of a murder trial. . . .
Residual doubt is not an acceptable mitigating factor under R.C. 2929.04(B), since it is irrelevant to the issue of whether the defendant should be sentenced to death.
Id. at 1123 (emphasis added) (citations omitted).
We recognized in Mapes v. Coyle, 171 F.3d 408 (6th Cir.), cert. denied, 528 U.S. 946 (1999):
Under the Ohio statute, a capital defendant found guilty of a death specification has to present some mitigating evidence in order to avoid the death penalty. If a jury has nothing to weigh against the aggravating circumstance, it almost certainly must find that the aggravating circumstance outweighs the (nonexistent)mitigating circumstances, and recommend death.
Id. at 426.
And, the Mapes court also stated that "when a client faces the prospect of being put to death unless counsel obtains and presents something in mitigation, minimal standards require some investigation." Id. Recently, in Carter v. Bell, 218 F.3d 581, 600 (6th Cir. 2000), and Skaggs v. Parker, 235 F.3d 261, 269, 271 (6th Cir. 2000), this court has held that failure to investigate possible mitigating factors and failure to present mitigating evidence at sentencing can constitute ineffective assistance of counsel under the Sixth Amendment.
But, this case is distinguishable from Mapes, Carter, and Skaggs because after the various options for proceeding in the sentencing phase of the case were explained to him, Coleman directed his counsel to proceed with the residual doubt theory, which did not include the introduction of mitigating evidence relating to Coleman's past mental history. Coleman now argues that his counsel was ineffective for following his instructions because counsel should have realized that he lacked the competence needed to choose an appropriate sentencing strategy.
It is well established that a criminal defendant may not be tried unless he is competent. Godinez v. Moran, 509 U.S. 389, 396 (1993). To be competent for trial, a defendant must have "sufficient ability to consult with his lawyers and a reasonable degree of rational and factual understanding of the proceedings against him." United States v. Ford, 184 F.3d 566, 580 (6th Cir. 1999), cert. denied, 528 U.S. 1161 (2000). Godinez clarified that the level of competence needed to waive counsel is the same as that needed to stand trial. See Godinez, 509 U.S. at 399.
We believe that the Godinez standard should also apply here to determine whether Coleman was competent enough to instruct his counsel as to the appropriate strategy to pursue at sentencing. As the district court recognized, "Coleman acted as co-counsel to the extent of addressing the jury, examining at least one witness, and participating in side-bench conferences between counsel and the judge, as well as presenting his own motions." (Internal quotation marks omitted.) Nothing in the trial record that memorializes Coleman's extensive participation in the trial suggests that he lacked a "rational and factual understanding" of the proceedings against him and the potential impact of utilizing a residual doubt theory at sentencing.
While recent decisions from this court have emphasized that failure to present mitigating evidence at sentencing may constitute ineffective assistance of counsel under the Sixth Amendment, counsel may nevertheless make a reasonable decision that investigation is not necessary. See Strickland, 466 U.S. at 691. Indeed, the Strickland Court noted that "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." Id. Coleman admits that he did not cooperate with counsel regarding the investigation and identification of mitigating evidence; imposed restrictions upon counsel; and refused to submit to further psychological or psychiatric testing. After presenting Coleman with his options, counsel proceeded with the residual doubt theory only at Coleman's direction. Coleman was competent to stand trial and competent to assist his lawyer with strategic choices. He repeatedly advised his lawyer to proceed with the residual doubt theory and not to investigate possible mitigating factors. An attorney's conduct is not deficient simply for following his client's instructions.See Jones, 463 U.S. at 751-52. The petitioner was not deprived of his Sixth Amendment right to effective assistance of counsel at sentencing under the Strickland standard.
VIII.
For the foregoing reasons, the judgment of the district court is AFFIRMED
244 F.3d 533
Alton Coleman, Petitioner-Appellant,
v.
Betty Mitchell, Warden, Respondent-Appellee.
Docket number: 98-3546
Federal Circuits, 6th Cir.
March 26, 2001
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. Nos. 94-00863, 94-00864, Sandra S. Beckwith, District Judge.
Before: MERRITT, RYAN, and BOGGS, Circuit Judges.
RYAN, Circuit Judge.
OPINION
Petitioner Alton Coleman has been convicted of murder in an Ohio state court and has been sentenced to death. He now appeals the district court's order dismissing his habeas corpus petition brought pursuant to 28 U.S.C. 2254. Coleman raises several assignments of error, the most serious of which are: (1) the district court erred when it held that Coleman had procedurally defaulted on 34 of the 50 claims raised in his habeas petition; (2) his constitutional due process rights were violated because of prosecutorial misconductand the introduction of "other acts" evidence; and (3) he was denied effective assistance of counsel at sentencing because his attorneys failed to fully investigate his background and mental health for purposes of offering evidence in mitigation. For the reasons discussed below, we will affirm the judgment of the district court.
I.
A.
On July 13, 1984, Coleman and his girlfriend, Debra D. Brown, arrived via bicycle in Norwood, Ohio, and stopped at the home of Harry and Marlene Walters around 9:30 a.m. After inquiring about a camping trailer the Walterses had for sale, Coleman and Brown were invited into the Walterses' home. Once inside, Coleman picked up a wooden candlestick and began striking Mr. Walters on the back of the head.
When the Walterses' daughter, Sheri, arrived home from work around 3:45 p.m. the same day, she found the house splattered with blood and her parents' motionless bodies lying at the bottom of the basement steps. Mr. Walters, barely breathing, had his hands handcuffed behind his back and his feet tied together with electrical cords. Mrs. Walters, already dead, had a bloody sheet covering her head. Her hands were bound behind her back and her feet were tied together with electrical cords. At trial, expert testimony indicated that Mrs. Walters had been struck on the head approximately 25 times. Twelve lacerations, several made with a pair of vise grips, covered her face and scalp. The back of her skull was smashed to pieces, and parts of both her skull and brain were missing. Mr. Walters survived the beating with some degree of brain damage.
Money, jewelry, shoes, and the family car had been stolen. Two bicycles were found abandoned in the Walterses' yard, and Coleman's fingerprints were found on a broken soda bottle in the living room.
Coleman and Brown have been implicated in several murders, rapes, kidnappings, and armed robberies that were committed in several Midwestern states during the summer of 1984.
B.
A Hamilton County grand jury indicted Coleman on the following five counts: (1) aggravated murder while committing aggravated burglary; (2) aggravated murder while committing aggravated robbery; (3) attempted aggravated murder; (4) aggravated robbery; and (5) aggravated burglary. Following trial, an Ohio jury returned a verdict of guilty on all charges and Coleman was sentenced to death for the aggravated murder of Mrs. Walters. Coleman's judgment of conviction and his death sentence were affirmed by the Ohio Court of Appeals, State v. Coleman, Nos. C-850340, B-842559A, 1986 WL 14070 (Ohio Ct. App. Dec. 10, 1986), and the Ohio Supreme Court, State v. Coleman, 525 N.E.2d 792 (Ohio 1988). The United States Supreme Court denied certiorari, Coleman v. Ohio, 488 U.S. 900 (1988).
Coleman then petitioned the trial court for post-conviction relief pursuant to Ohio Rev. Code Ann. § 2953.21. The trial court, without conducting an evidentiary hearing, adopted the state's proposed findings of fact and conclusions of law and denied relief. The Ohio Court of Appeals affirmed the trial court's decision, State v. Coleman, No. C-900811, 1993 WL 74756 (Ohio Ct. App. Mar. 17, 1993), and the Ohio Supreme Court dismissed Coleman's appeal, ruling that it lacked jurisdiction, State v. Coleman, 619 N.E.2d 419 (Ohio 1993).
On July 9, 1993, Coleman filed an Application for Delayed Reconsideration in the Ohio Court of Appeals alleging that his counsel on direct appeal had been constitutionally ineffective. The Court of Appeals denied the application, ruling that Coleman had failed to show good cause for filing itmore than 90 days after the court's judgment. See Ohio App. R. 26(B)(2)(b). On October 7, 1994, the Ohio Supreme Court affirmed the Court of Appeals' decision, denied Coleman's request for reconsideration, and revoked the stay of execution on Coleman's death sentence.
On January 6, 1995, Coleman filed his habeas corpus petition in federal court. He brought 50 assignments of error. The district court concluded that 34 of the assignments of error were procedurally barred because Coleman had failed to raise them on direct appeal in state court. The remaining assignments of error were found to be without merit.
On February 13, 1995, the district court granted Coleman's motion to consolidate three habeas cases: the sentence of death for the murder of Mrs. Walters; a second sentence of death from his conviction for another murder in Ohio; and a conviction for interstate kidnapping. On February 13, 1998, the district court denied, inter alia, Coleman's habeas corpuspetition pertaining to the murder of Mrs. Walters.
Coleman timely appealed the district court's judgment in the consolidated case, and this court then severed Coleman's appeal. Consequently, this appeal pertains only to the denial of habeas corpus relief in the capital case involving the death of Mrs. Walters.
II.
Because Coleman's habeas petition was filed on January 6, 1995, before the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), became effective on April 24, 1996, the pre-AEDPA standard of review applies. See 28 U.S.C. 2254 (1996). This court must review the district court's legal conclusions denovo and its findings of fact for clear error. Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir. 1997). And we must defer to state court factual findings pertaining to primary or historical facts, which are presumed correct and are rebuttable only by clear and convincing evidence. See id. State court determinations of law and mixed questions of law and fact should be reviewed de novo. Id.
III.
The district court concluded that Coleman had procedurally defaulted on 34 of the 50 claims raised in his habeaspetition because of failure to comply with Ohio's res judicata doctrine established in State v. Perry, 226 N.E.2d 104 (Ohio 1967). In Perry, the Ohio Supreme Court held:
Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment.
Id. at 108 (emphasis added).
Coleman contends that even if his claims are procedurally defaulted for not having been raised on direct appeal, his default is "excused" because his appellate counsel was constitutionally ineffective for failing to properly raise the issues in that appeal. Coleman cannot obtain federal habeas relief under 28 U.S.C. 2254 unless he has completely exhausted his available state court remedies by presenting his claims to the state's highest court. See Coleman v. Thompson, 501 U.S. 722 , 731 (1991). And, he cannot circumvent the exhaustion requirement by failing to comply with state procedural rules. See id.at 731-32; Combs v. Coyle, 205 F.3d 269, 274 (6th Cir.), cert. denied, 121 S. Ct. 623 (2000).
When determining whether a state petitioner's claim is barred from habeas review based on procedural default, this court must look to the following fourfactors. First, the court must determine that there is an applicable state procedural rule with which the petitioner failed to comply. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Second, the court must determine that the state rule is one that is "firmly established and regularly followed." Jones v. Toombs, 125 F.3d 945, 946 (6th Cir. 1997) (internal quotation marks and citation omitted). Third, the court must determine that the state procedural rule is an "adequate and independent" state ground on which the state may rely to foreclose review of the federal constitutional claim. Maupin, 785 F.2d at 138. If all three of these factors are met, the petitioner must then show there was "cause" for the default and "prejudice" resulting therefrom, or that a "miscarriage of justice" would result if the procedural default were enforced. See Wainwright v. Sykes, 433 U.S. 72, 84-87, 90-91 (1977). A state procedural bar will be held to bar federal habeas review only when the last reasoned decision of the state court concluded that the claims were barred by a state procedural rule. See Harris v. Reed, 489 U.S. 255, 263 (1989); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991).
In Edwards v. Carpenter, 529 U.S. 446, 120 S. Ct. 1587 (2000), the United States Supreme Court held that "an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted." Id. at 1592. In this case, the petitioner has procedurally defaulted on his claim that his appellate counsel was ineffective because, as we will explain, he failed to bring the claim in a timely manner as required by Ohio law, which is itself a procedural bar. Therefore, in order for Coleman to use his ineffective assistance of appellate counsel claim as "cause" to excuse his other procedurally defaulted claims, he must first meet the cause and prejudice standard for the ineffective assistance of appellate counsel claim itself. We conclude that Coleman has not carried this burden.
According to Coleman, the district court erred in declining to consider his ineffective assistance of appellate counsel claim on the ground that the claim was procedurally barred. As we have said, the Ohio Court of Appeals denied Coleman's effort to have his ineffective assistance of appellate counsel claim considered in his application for delayed reconsideration of his direct appeal. The Court of Appeals ruled that the application was untimely because it was not filed within 90 days of the original Court of Appeals decision, as required by Ohio App. R. 26(B). Coleman alleges that he asserted the claim in his petition for post-conviction relief in the state trial court in 1990, rather than in an application to reconsider his direct appeal, because there was no regularly followed procedure in the Ohio courts for raising such claims.
In February 1992, after conclusion of his direct appeals to the Ohio Court of Appeals and Ohio Supreme Court, and during the pendency of Coleman's appeal of the denial of his post-conviction petition, the Ohio Supreme Court decidedState v. Murnahan, 584 N.E.2d 1204 (Ohio 1992). The Murnahan court held that ineffective assistance of appellate counsel claims should be raised in a delayed motion for reconsideration before the Ohio Court of Appeals and not in a petition for post-conviction relief.
Coleman waited 16 months after Murnahan was decided before filing his delayed motion for reconsideration in the Court of Appeals on July 9, 1993, and the Court of Appeals dismissed the application because it was more than 90 days after the court's 1986 decision and Coleman had not shown good cause for the delay, as required by Ohio App. R. 26(B).
On July 1, 1993, Ohio App. R. 26(B) was amended to provide, in pertinent part:
(B)Application for reopening(1)A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.
(2)An application for reopening shall contain all of the following:
. . . . (b)A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment.
Ohio App. R. 26(B).
While Coleman's application was filed prior to the amendment's effective date, the amendment governs further proceedings in pending actions, unless it is shown that its application would work an injustice. Coleman has not made this showing.
Coleman argues that the 90-day filing period that he missed should have been "tolled" due to the fact that the Ohio Court of Appeals had not yet ruled on his petition for post-conviction relief, which included a claim of ineffective assistance of appellate counsel. Although he is not entirely clear about it, Coleman seems to be arguing there was not a firmly established and regularly followed procedural rule for raising ineffective assistance of appellate counsel claims in 1986 when his appeal was decided in the Ohio Court of Appeals, and therefore, no "adequate and independent" state ground existed to foreclose review of the federal constitutional claim. We do not find Coleman's argument persuasive.
Before the Ohio Supreme Court's decision in Murnahan, it was well established in the Ohio First Appellate District, the appellate district in which Coleman's appeal was heard, that claims of ineffective assistance of appellate counsel were to be raised in a delayed motion for reconsideration and were not cognizable in state post-conviction proceedings. See State v. Rone, Nos. C-820322, B-784088, 1983 WL 8877 (Ohio Ct. App. June 1, 1983) (unpublished disposition). Even assuming Coleman was confused by the proper forum in which to initially bring his claim, he does not explain why he did not ask the court to remove his ineffective appellate counsel claim from his post-conviction petition without prejudice in order to raise it in a timely manner in a Murnahan motion or why he waited 16 months after Murnahan was decided to raise the claim.
When a habeas petitioner has failed to show cause for not asserting his ineffective assistance of appellate counsel claim properly in the Ohio courts, a federal court may not reach the merits of the habeas claim unless the petitioner can show that refusal to consider his claim would result in a fundamental miscarriage of justice. The fundamental miscarriage of justice exception requires a showing that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995). Coleman has not made this showing and does not claim to have done so.
Even if Coleman could offer an appropriate excuse for failing to bring his ineffective assistance of appellate counsel claim in a proper and timely manner, the claim is meritless. The Edwards Court recently reemphasized that "[n]ot just any deficiency in counsel's performance" is sufficient to excuse procedural default; "the assistance must have been so ineffective as to violate the Federal Constitution." Edwards, 120 S. Ct. at 1591. The proper ineffective assistance of counsel standard was articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):
First, the defendant must show that counsel's performance was deficient.This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687.
On direct appeal to the Ohio First Appellate District, Coleman's appellate counsel raised 15 assignments of error and on direct appeal to the Ohio Supreme Court, he asserted 11 assignments of error. After a careful review of the record, we are in agreement with the district court that Coleman's appellate counsel was not deficient for refusing to raise approximately 60 additional claims as Coleman suggests. Coleman does not have a constitutional right to have his counsel press nonfrivolous points if counsel decides as a matter of professional judgment not to press those points. See Jones v. Barnes, 463 U.S. 745, 750-51 (1983).
In conclusion, because Coleman's ineffective assistance of appellate counsel claim is itself procedurally defaulted and he has not shown "cause and prejudice" for that default, Coleman's ineffective assistance claim cannot serve as "cause" to excuse his 34 procedurally defaulted claims.
IV.
Coleman next claims that his due process rights were violated due to misconduct by the prosecutor.
A.
Specifically, Coleman argues that the prosecution failed to disclose the existence of the following: (1) an interview conducted by the Federal Bureau of Investigation (FBI) on July 20, 1984; (2) items seized by the FBI from Coleman's grandmother's home; (3) the identity of Linnroy Bottoson, who allegedly knew of Coleman's whereabouts; (4)Coleman's alleged efforts to surrender; (5) the prosecution's intention to persuade Debra Brown to cooperate with them; (6) any exculpatory evidence concerning or relating to Coleman; (7) psychological, psychiatric, and/or medical profiles, reports, evaluations, and summaries concerning Coleman and/or Brown; (8) background files, reports, information, and summaries concerning Coleman and/or members of his family; (9) background information regarding Coleman; and (10) any mitigating evidence concerning Coleman. We agree with the district court that Coleman procedurally defaulted on any claim related to the seventh item because he failed to raise it on direct appeal, and the state court did not consider it when ruling on Coleman's post-conviction petition.
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." Id. at 87. "[T]here is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler v. Greene, 527 U.S. 263, 281 (1999). Furthermore, there is no Brady violation if the defendant knew or should have known the essential facts necessary to obtain the information in question. See Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998), cert. denied, 528 U.S. 842 (1999).
Without deciding that the items described by Coleman were withheld from him as he alleges, we are satisfied that even if they had been supplied to him, theverdict would have been the same because the quantity and quality of the evidence introduced to prove Coleman's guilt was overwhelming. Consequently, Coleman is unable to show that he was "prejudiced" by not having the information, and there is no Brady violation.
B.
Coleman also claims that he was denied due process of law because the state introduced evidence of "other acts," including murder, for which he was not on trial.
"Other acts" evidence may be introduced in certain situations pursuant to Ohio Rev. Code Ann. § 2945.59 and Ohio Evid. R. 404(B). Section 2945.59 provides:
In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
Ohio Rev. Code Ann. § 2945.59.
And, Ohio Evid. R. 404(B) specifies:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ohio Evid. R. 404(B).
Coleman contends that the "other acts" evidence introduced at trial linking him to other murder cases violated his right to due process and a fair trial because the evidence was dissimilar to the crime involving Mrs. Walters and irrelevant to the issues of scheme, motive, intent, system, or absence of mistake or accident.
The respondent answers that the "other acts" evidence was admissible because of its similarity to the case involving Mrs. Walters since it shows that Coleman was involved in other cases involving: (1) elderly couples; (2) use of deception to enter the victim's home; (3) use of handcuffs; (4) use of electrical cords to tie the victim's hands and feet; (5) the incapacitation of the victim's telephone; (6) the theft of the victim's motor vehicle; and (7) a conspiracy with Debra Brown. Although the respondent's argument is not entirely clear, we take it to be that the "other acts" evidence was introduced to show that Mrs. Walters's killer used the same modus operandi that Coleman used in the other killings--his "signature," so to speak--and therefore, that the "other acts" evidence was admissible as tending to prove Coleman's identity as the killer in this case. This is, of course, a familiar justification for the introduction of "other acts" evidence pursuant to Ohio Rev. Code Ann. § 2945.59 and Ohio Evid. R. 404(B).
Because this is an appeal from a habeas corpus decision and not an appeal of Coleman's state conviction, we do not pass upon "errors in the application of state law, especially rulings regarding the admission or exclusion of evidence." Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1998). A state court evidentiary ruling will be reviewed by a federal habeas court only if it were so fundamentally unfair as to violate the petitioner's due process rights. See Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
The trial court's explanation for the admission of the "other acts" evidence included:
In many of these other offenses, the evidence showed that the defendant used the same method of operation;that he would handcuff his victims and the majority of his assaults on their persons would occur after they were bound and defenseless. It should be noted that all of the victims of other crimes by the defendant who testified in this trial were elderly people, many of them frail, and most all of them incapable of defending themselves against the defendant's attack and most certainly when they were at the disadvantage of having their hands bound with handcuffs, electrical cord or similar ligatures.
We agree with the trial court that the "other acts" evidence was relevant because it showed that the methodology the killer used in Mrs. Walters's death closely resembled that used in other crimes committed by Coleman and thus tended to show that Coleman was Mrs. Walters's killer. Accordingly, the admission of the evidence was not fundamentally unfair and did not violate Coleman's due process rights.
V.
Coleman alleges that the district court erred in denying him an evidentiary hearing to reexamine the factual issues resolved by the state courts because he was never afforded the opportunity to develop and litigate the factual bases for his federal constitutional claims. In a habeas proceeding, state court findings of fact enjoy a presumption of correctness. SeeRickman, 131 F.3d at 1153. In order for Coleman to prevail on this claim, he must rebut this presumption of correctness with clear and convincing evidence. See id. The record reveals that Coleman was given the opportunity to fully and fairly litigate his claims in the Ohio courts and failed to do so. Because Coleman has done nothing to rebut the presumption of correctness given to the factual issues resolved by the state court, his due process rights have not been violated by the denial of an evidentiary hearing in the federal habeas court.
VI.
Coleman raises a number of challenges to Ohio's capital punishment scheme both on its face and as applied to his case. The district court rejected each of Coleman's claims. We agree that the claims relating to Ohio's capital punishment scheme are either procedurally defaulted or are lacking in merit, substantially for the reasons given in the district court opinion.
VII.
Coleman also contends that he was denied the effective assistance of counsel during sentencing as guaranteed by the Sixth Amendment because his attorneys had a duty to investigate all possible mitigating factors, including those relating to Coleman's mental health background, and counsel breached this duty by failing to conduct a complete, independent investigation. We are not entirely convinced that Coleman properly raised this claim on direct appeal; indeed, we are inclined to think the claim was procedurally defaulted. However, the respondent stipulated that Coleman "may be deemed to have fairly presented [this] issue in state court," so we will address the merits of the claim.
Specifically, Coleman alleges four errors committed by his counsel at sentencing: (1) failure to demand a hearing and determination concerning both his competency to waive presentation of mitigation evidence and his refusal to cooperate with trial counsel in providing information for an appropriate investigation of mitigating factors; (2) failure to obtain the necessary reports and evaluations from the appropriate experts for use as evidence at the mitigation phase of the proceedings; (3) failure to raise the issue of the constitutional impropriety of Coleman effectively waiving the presentation of mitigation evidence at the sentencing phase of the proceedings; and (4) failure to request the appointment of an investigator, mitigation specialist, and/or psychologist to assist inthe investigation, preparation, and presentation of mitigating evidence.
To repeat, the Strickland Court articulated the following test for determining the effectiveness of counsel: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687.
When elaborating on the "prejudice" prong of this test, the Strickland Court stated:
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. . . .
[T]he appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness. The defendant 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.
Id. at 693-94 (citations omitted).
In this case, counsel proceeded with a so-called "residual doubt theory" because Coleman instructed him to do so. Residual doubt has been described as a theory that creates "a lingering uncertainty about facts, a state of mind that exists somewhere between 'beyond a reasonable doubt' and 'absolute certainty.'" Franklin v. Lynaugh, 487 U.S. 164, 188 (1988) (O'Connor, J., concurring). In State v. McGuire, 686 N.E.2d 1112 (Ohio 1997), the Ohio Supreme Court explained:
Residual or lingering doubt as to the defendant's guilt or innocence is not a factor relevant to the imposition of the death sentence because it has nothing to do with the nature and circumstances of the offense or the history, character, and background of the offender....
Our system requires that the prosecution prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty verdict by recommending mercy in case a mistake has occurred. Residual doubt casts a shadow over the reliability and credibility of our legal system in that it allows the jury to second-guess its verdict of guilt in the separate penalty phase of a murder trial. . . .
Residual doubt is not an acceptable mitigating factor under R.C. 2929.04(B), since it is irrelevant to the issue of whether the defendant should be sentenced to death.
Id. at 1123 (emphasis added) (citations omitted).
We recognized in Mapes v. Coyle, 171 F.3d 408 (6th Cir.), cert. denied, 528 U.S. 946 (1999):
Under the Ohio statute, a capital defendant found guilty of a death specification has to present some mitigating evidence in order to avoid the death penalty. If a jury has nothing to weigh against the aggravating circumstance, it almost certainly must find that the aggravating circumstance outweighs the (nonexistent)mitigating circumstances, and recommend death.
Id. at 426.
And, the Mapes court also stated that "when a client faces the prospect of being put to death unless counsel obtains and presents something in mitigation, minimal standards require some investigation." Id. Recently, in Carter v. Bell, 218 F.3d 581, 600 (6th Cir. 2000), and Skaggs v. Parker, 235 F.3d 261, 269, 271 (6th Cir. 2000), this court has held that failure to investigate possible mitigating factors and failure to present mitigating evidence at sentencing can constitute ineffective assistance of counsel under the Sixth Amendment.
But, this case is distinguishable from Mapes, Carter, and Skaggs because after the various options for proceeding in the sentencing phase of the case were explained to him, Coleman directed his counsel to proceed with the residual doubt theory, which did not include the introduction of mitigating evidence relating to Coleman's past mental history. Coleman now argues that his counsel was ineffective for following his instructions because counsel should have realized that he lacked the competence needed to choose an appropriate sentencing strategy.
It is well established that a criminal defendant may not be tried unless he is competent. Godinez v. Moran, 509 U.S. 389, 396 (1993). To be competent for trial, a defendant must have "sufficient ability to consult with his lawyers and a reasonable degree of rational and factual understanding of the proceedings against him." United States v. Ford, 184 F.3d 566, 580 (6th Cir. 1999), cert. denied, 528 U.S. 1161 (2000). Godinez clarified that the level of competence needed to waive counsel is the same as that needed to stand trial. See Godinez, 509 U.S. at 399.
We believe that the Godinez standard should also apply here to determine whether Coleman was competent enough to instruct his counsel as to the appropriate strategy to pursue at sentencing. As the district court recognized, "Coleman acted as co-counsel to the extent of addressing the jury, examining at least one witness, and participating in side-bench conferences between counsel and the judge, as well as presenting his own motions." (Internal quotation marks omitted.) Nothing in the trial record that memorializes Coleman's extensive participation in the trial suggests that he lacked a "rational and factual understanding" of the proceedings against him and the potential impact of utilizing a residual doubt theory at sentencing.
While recent decisions from this court have emphasized that failure to present mitigating evidence at sentencing may constitute ineffective assistance of counsel under the Sixth Amendment, counsel may nevertheless make a reasonable decision that investigation is not necessary. See Strickland, 466 U.S. at 691. Indeed, the Strickland Court noted that "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." Id. Coleman admits that he did not cooperate with counsel regarding the investigation and identification of mitigating evidence; imposed restrictions upon counsel; and refused to submit to further psychological or psychiatric testing. After presenting Coleman with his options, counsel proceeded with the residual doubt theory only at Coleman's direction. Coleman was competent to stand trial and competent to assist his lawyer with strategic choices. He repeatedly advised his lawyer to proceed with the residual doubt theory and not to investigate possible mitigating factors. An attorney's conduct is not deficient simply for following his client's instructions.See Jones, 463 U.S. at 751-52. The petitioner was not deprived of his Sixth Amendment right to effective assistance of counsel at sentencing under the Strickland standard.
VIII.
For the foregoing reasons, the judgment of the district court is AFFIRMED
244 F.3d 533
Alton Coleman, Petitioner-Appellant,
v.
Betty Mitchell, Warden, Respondent-Appellee.
Docket number: 98-3546
Federal Circuits, 6th Cir.
March 26, 2001
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. Nos. 94-00863, 94-00864, Sandra S. Beckwith, District Judge.
Before: MERRITT, RYAN, and BOGGS, Circuit Judges.
RYAN, Circuit Judge.
OPINION
Petitioner Alton Coleman has been convicted of murder in an Ohio state court and has been sentenced to death. He now appeals the district court's order dismissing his habeas corpus petition brought pursuant to 28 U.S.C. 2254. Coleman raises several assignments of error, the most serious of which are: (1) the district court erred when it held that Coleman had procedurally defaulted on 34 of the 50 claims raised in his habeas petition; (2) his constitutional due process rights were violated because of prosecutorial misconductand the introduction of "other acts" evidence; and (3) he was denied effective assistance of counsel at sentencing because his attorneys failed to fully investigate his background and mental health for purposes of offering evidence in mitigation. For the reasons discussed below, we will affirm the judgment of the district court.
I.
A.
On July 13, 1984, Coleman and his girlfriend, Debra D. Brown, arrived via bicycle in Norwood, Ohio, and stopped at the home of Harry and Marlene Walters around 9:30 a.m. After inquiring about a camping trailer the Walterses had for sale, Coleman and Brown were invited into the Walterses' home. Once inside, Coleman picked up a wooden candlestick and began striking Mr. Walters on the back of the head.
When the Walterses' daughter, Sheri, arrived home from work around 3:45 p.m. the same day, she found the house splattered with blood and her parents' motionless bodies lying at the bottom of the basement steps. Mr. Walters, barely breathing, had his hands handcuffed behind his back and his feet tied together with electrical cords. Mrs. Walters, already dead, had a bloody sheet covering her head. Her hands were bound behind her back and her feet were tied together with electrical cords. At trial, expert testimony indicated that Mrs. Walters had been struck on the head approximately 25 times. Twelve lacerations, several made with a pair of vise grips, covered her face and scalp. The back of her skull was smashed to pieces, and parts of both her skull and brain were missing. Mr. Walters survived the beating with some degree of brain damage.
Money, jewelry, shoes, and the family car had been stolen. Two bicycles were found abandoned in the Walterses' yard, and Coleman's fingerprints were found on a broken soda bottle in the living room.
Coleman and Brown have been implicated in several murders, rapes, kidnappings, and armed robberies that were committed in several Midwestern states during the summer of 1984.
B.
A Hamilton County grand jury indicted Coleman on the following five counts: (1) aggravated murder while committing aggravated burglary; (2) aggravated murder while committing aggravated robbery; (3) attempted aggravated murder; (4) aggravated robbery; and (5) aggravated burglary. Following trial, an Ohio jury returned a verdict of guilty on all charges and Coleman was sentenced to death for the aggravated murder of Mrs. Walters. Coleman's judgment of conviction and his death sentence were affirmed by the Ohio Court of Appeals, State v. Coleman, Nos. C-850340, B-842559A, 1986 WL 14070 (Ohio Ct. App. Dec. 10, 1986), and the Ohio Supreme Court, State v. Coleman, 525 N.E.2d 792 (Ohio 1988). The United States Supreme Court denied certiorari, Coleman v. Ohio, 488 U.S. 900 (1988).
Coleman then petitioned the trial court for post-conviction relief pursuant to Ohio Rev. Code Ann. § 2953.21. The trial court, without conducting an evidentiary hearing, adopted the state's proposed findings of fact and conclusions of law and denied relief. The Ohio Court of Appeals affirmed the trial court's decision, State v. Coleman, No. C-900811, 1993 WL 74756 (Ohio Ct. App. Mar. 17, 1993), and the Ohio Supreme Court dismissed Coleman's appeal, ruling that it lacked jurisdiction, State v. Coleman, 619 N.E.2d 419 (Ohio 1993).
On July 9, 1993, Coleman filed an Application for Delayed Reconsideration in the Ohio Court of Appeals alleging that his counsel on direct appeal had been constitutionally ineffective. The Court of Appeals denied the application, ruling that Coleman had failed to show good cause for filing itmore than 90 days after the court's judgment. See Ohio App. R. 26(B)(2)(b). On October 7, 1994, the Ohio Supreme Court affirmed the Court of Appeals' decision, denied Coleman's request for reconsideration, and revoked the stay of execution on Coleman's death sentence.
On January 6, 1995, Coleman filed his habeas corpus petition in federal court. He brought 50 assignments of error. The district court concluded that 34 of the assignments of error were procedurally barred because Coleman had failed to raise them on direct appeal in state court. The remaining assignments of error were found to be without merit.
On February 13, 1995, the district court granted Coleman's motion to consolidate three habeas cases: the sentence of death for the murder of Mrs. Walters; a second sentence of death from his conviction for another murder in Ohio; and a conviction for interstate kidnapping. On February 13, 1998, the district court denied, inter alia, Coleman's habeas corpuspetition pertaining to the murder of Mrs. Walters.
Coleman timely appealed the district court's judgment in the consolidated case, and this court then severed Coleman's appeal. Consequently, this appeal pertains only to the denial of habeas corpus relief in the capital case involving the death of Mrs. Walters.
II.
Because Coleman's habeas petition was filed on January 6, 1995, before the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), became effective on April 24, 1996, the pre-AEDPA standard of review applies. See 28 U.S.C. 2254 (1996). This court must review the district court's legal conclusions denovo and its findings of fact for clear error. Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir. 1997). And we must defer to state court factual findings pertaining to primary or historical facts, which are presumed correct and are rebuttable only by clear and convincing evidence. See id. State court determinations of law and mixed questions of law and fact should be reviewed de novo. Id.
III.
The district court concluded that Coleman had procedurally defaulted on 34 of the 50 claims raised in his habeaspetition because of failure to comply with Ohio's res judicata doctrine established in State v. Perry, 226 N.E.2d 104 (Ohio 1967). In Perry, the Ohio Supreme Court held:
Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment.
Id. at 108 (emphasis added).
Coleman contends that even if his claims are procedurally defaulted for not having been raised on direct appeal, his default is "excused" because his appellate counsel was constitutionally ineffective for failing to properly raise the issues in that appeal. Coleman cannot obtain federal habeas relief under 28 U.S.C. 2254 unless he has completely exhausted his available state court remedies by presenting his claims to the state's highest court. See Coleman v. Thompson, 501 U.S. 722 , 731 (1991). And, he cannot circumvent the exhaustion requirement by failing to comply with state procedural rules. See id.at 731-32; Combs v. Coyle, 205 F.3d 269, 274 (6th Cir.), cert. denied, 121 S. Ct. 623 (2000).
When determining whether a state petitioner's claim is barred from habeas review based on procedural default, this court must look to the following fourfactors. First, the court must determine that there is an applicable state procedural rule with which the petitioner failed to comply. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). Second, the court must determine that the state rule is one that is "firmly established and regularly followed." Jones v. Toombs, 125 F.3d 945, 946 (6th Cir. 1997) (internal quotation marks and citation omitted). Third, the court must determine that the state procedural rule is an "adequate and independent" state ground on which the state may rely to foreclose review of the federal constitutional claim. Maupin, 785 F.2d at 138. If all three of these factors are met, the petitioner must then show there was "cause" for the default and "prejudice" resulting therefrom, or that a "miscarriage of justice" would result if the procedural default were enforced. See Wainwright v. Sykes, 433 U.S. 72, 84-87, 90-91 (1977). A state procedural bar will be held to bar federal habeas review only when the last reasoned decision of the state court concluded that the claims were barred by a state procedural rule. See Harris v. Reed, 489 U.S. 255, 263 (1989); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991).
In Edwards v. Carpenter, 529 U.S. 446, 120 S. Ct. 1587 (2000), the United States Supreme Court held that "an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted." Id. at 1592. In this case, the petitioner has procedurally defaulted on his claim that his appellate counsel was ineffective because, as we will explain, he failed to bring the claim in a timely manner as required by Ohio law, which is itself a procedural bar. Therefore, in order for Coleman to use his ineffective assistance of appellate counsel claim as "cause" to excuse his other procedurally defaulted claims, he must first meet the cause and prejudice standard for the ineffective assistance of appellate counsel claim itself. We conclude that Coleman has not carried this burden.
According to Coleman, the district court erred in declining to consider his ineffective assistance of appellate counsel claim on the ground that the claim was procedurally barred. As we have said, the Ohio Court of Appeals denied Coleman's effort to have his ineffective assistance of appellate counsel claim considered in his application for delayed reconsideration of his direct appeal. The Court of Appeals ruled that the application was untimely because it was not filed within 90 days of the original Court of Appeals decision, as required by Ohio App. R. 26(B). Coleman alleges that he asserted the claim in his petition for post-conviction relief in the state trial court in 1990, rather than in an application to reconsider his direct appeal, because there was no regularly followed procedure in the Ohio courts for raising such claims.
In February 1992, after conclusion of his direct appeals to the Ohio Court of Appeals and Ohio Supreme Court, and during the pendency of Coleman's appeal of the denial of his post-conviction petition, the Ohio Supreme Court decidedState v. Murnahan, 584 N.E.2d 1204 (Ohio 1992). The Murnahan court held that ineffective assistance of appellate counsel claims should be raised in a delayed motion for reconsideration before the Ohio Court of Appeals and not in a petition for post-conviction relief.
Coleman waited 16 months after Murnahan was decided before filing his delayed motion for reconsideration in the Court of Appeals on July 9, 1993, and the Court of Appeals dismissed the application because it was more than 90 days after the court's 1986 decision and Coleman had not shown good cause for the delay, as required by Ohio App. R. 26(B).
On July 1, 1993, Ohio App. R. 26(B) was amended to provide, in pertinent part:
(B)Application for reopening(1)A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.
(2)An application for reopening shall contain all of the following:
. . . . (b)A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment.
Ohio App. R. 26(B).
While Coleman's application was filed prior to the amendment's effective date, the amendment governs further proceedings in pending actions, unless it is shown that its application would work an injustice. Coleman has not made this showing.
Coleman argues that the 90-day filing period that he missed should have been "tolled" due to the fact that the Ohio Court of Appeals had not yet ruled on his petition for post-conviction relief, which included a claim of ineffective assistance of appellate counsel. Although he is not entirely clear about it, Coleman seems to be arguing there was not a firmly established and regularly followed procedural rule for raising ineffective assistance of appellate counsel claims in 1986 when his appeal was decided in the Ohio Court of Appeals, and therefore, no "adequate and independent" state ground existed to foreclose review of the federal constitutional claim. We do not find Coleman's argument persuasive.
Before the Ohio Supreme Court's decision in Murnahan, it was well established in the Ohio First Appellate District, the appellate district in which Coleman's appeal was heard, that claims of ineffective assistance of appellate counsel were to be raised in a delayed motion for reconsideration and were not cognizable in state post-conviction proceedings. See State v. Rone, Nos. C-820322, B-784088, 1983 WL 8877 (Ohio Ct. App. June 1, 1983) (unpublished disposition). Even assuming Coleman was confused by the proper forum in which to initially bring his claim, he does not explain why he did not ask the court to remove his ineffective appellate counsel claim from his post-conviction petition without prejudice in order to raise it in a timely manner in a Murnahan motion or why he waited 16 months after Murnahan was decided to raise the claim.
When a habeas petitioner has failed to show cause for not asserting his ineffective assistance of appellate counsel claim properly in the Ohio courts, a federal court may not reach the merits of the habeas claim unless the petitioner can show that refusal to consider his claim would result in a fundamental miscarriage of justice. The fundamental miscarriage of justice exception requires a showing that "in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995). Coleman has not made this showing and does not claim to have done so.
Even if Coleman could offer an appropriate excuse for failing to bring his ineffective assistance of appellate counsel claim in a proper and timely manner, the claim is meritless. The Edwards Court recently reemphasized that "[n]ot just any deficiency in counsel's performance" is sufficient to excuse procedural default; "the assistance must have been so ineffective as to violate the Federal Constitution." Edwards, 120 S. Ct. at 1591. The proper ineffective assistance of counsel standard was articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):
First, the defendant must show that counsel's performance was deficient.This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Id. at 687.
On direct appeal to the Ohio First Appellate District, Coleman's appellate counsel raised 15 assignments of error and on direct appeal to the Ohio Supreme Court, he asserted 11 assignments of error. After a careful review of the record, we are in agreement with the district court that Coleman's appellate counsel was not deficient for refusing to raise approximately 60 additional claims as Coleman suggests. Coleman does not have a constitutional right to have his counsel press nonfrivolous points if counsel decides as a matter of professional judgment not to press those points. See Jones v. Barnes, 463 U.S. 745, 750-51 (1983).
In conclusion, because Coleman's ineffective assistance of appellate counsel claim is itself procedurally defaulted and he has not shown "cause and prejudice" for that default, Coleman's ineffective assistance claim cannot serve as "cause" to excuse his 34 procedurally defaulted claims.
IV.
Coleman next claims that his due process rights were violated due to misconduct by the prosecutor.
A.
Specifically, Coleman argues that the prosecution failed to disclose the existence of the following: (1) an interview conducted by the Federal Bureau of Investigation (FBI) on July 20, 1984; (2) items seized by the FBI from Coleman's grandmother's home; (3) the identity of Linnroy Bottoson, who allegedly knew of Coleman's whereabouts; (4)Coleman's alleged efforts to surrender; (5) the prosecution's intention to persuade Debra Brown to cooperate with them; (6) any exculpatory evidence concerning or relating to Coleman; (7) psychological, psychiatric, and/or medical profiles, reports, evaluations, and summaries concerning Coleman and/or Brown; (8) background files, reports, information, and summaries concerning Coleman and/or members of his family; (9) background information regarding Coleman; and (10) any mitigating evidence concerning Coleman. We agree with the district court that Coleman procedurally defaulted on any claim related to the seventh item because he failed to raise it on direct appeal, and the state court did not consider it when ruling on Coleman's post-conviction petition.
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." Id. at 87. "[T]here is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler v. Greene, 527 U.S. 263, 281 (1999). Furthermore, there is no Brady violation if the defendant knew or should have known the essential facts necessary to obtain the information in question. See Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998), cert. denied, 528 U.S. 842 (1999).
Without deciding that the items described by Coleman were withheld from him as he alleges, we are satisfied that even if they had been supplied to him, theverdict would have been the same because the quantity and quality of the evidence introduced to prove Coleman's guilt was overwhelming. Consequently, Coleman is unable to show that he was "prejudiced" by not having the information, and there is no Brady violation.
B.
Coleman also claims that he was denied due process of law because the state introduced evidence of "other acts," including murder, for which he was not on trial.
"Other acts" evidence may be introduced in certain situations pursuant to Ohio Rev. Code Ann. § 2945.59 and Ohio Evid. R. 404(B). Section 2945.59 provides:
In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant.
Ohio Rev. Code Ann. § 2945.59.
And, Ohio Evid. R. 404(B) specifies:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Ohio Evid. R. 404(B).
Coleman contends that the "other acts" evidence introduced at trial linking him to other murder cases violated his right to due process and a fair trial because the evidence was dissimilar to the crime involving Mrs. Walters and irrelevant to the issues of scheme, motive, intent, system, or absence of mistake or accident.
The respondent answers that the "other acts" evidence was admissible because of its similarity to the case involving Mrs. Walters since it shows that Coleman was involved in other cases involving: (1) elderly couples; (2) use of deception to enter the victim's home; (3) use of handcuffs; (4) use of electrical cords to tie the victim's hands and feet; (5) the incapacitation of the victim's telephone; (6) the theft of the victim's motor vehicle; and (7) a conspiracy with Debra Brown. Although the respondent's argument is not entirely clear, we take it to be that the "other acts" evidence was introduced to show that Mrs. Walters's killer used the same modus operandi that Coleman used in the other killings--his "signature," so to speak--and therefore, that the "other acts" evidence was admissible as tending to prove Coleman's identity as the killer in this case. This is, of course, a familiar justification for the introduction of "other acts" evidence pursuant to Ohio Rev. Code Ann. § 2945.59 and Ohio Evid. R. 404(B).
Because this is an appeal from a habeas corpus decision and not an appeal of Coleman's state conviction, we do not pass upon "errors in the application of state law, especially rulings regarding the admission or exclusion of evidence." Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1998). A state court evidentiary ruling will be reviewed by a federal habeas court only if it were so fundamentally unfair as to violate the petitioner's due process rights. See Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000).
The trial court's explanation for the admission of the "other acts" evidence included:
In many of these other offenses, the evidence showed that the defendant used the same method of operation;that he would handcuff his victims and the majority of his assaults on their persons would occur after they were bound and defenseless. It should be noted that all of the victims of other crimes by the defendant who testified in this trial were elderly people, many of them frail, and most all of them incapable of defending themselves against the defendant's attack and most certainly when they were at the disadvantage of having their hands bound with handcuffs, electrical cord or similar ligatures.
We agree with the trial court that the "other acts" evidence was relevant because it showed that the methodology the killer used in Mrs. Walters's death closely resembled that used in other crimes committed by Coleman and thus tended to show that Coleman was Mrs. Walters's killer. Accordingly, the admission of the evidence was not fundamentally unfair and did not violate Coleman's due process rights.
V.
Coleman alleges that the district court erred in denying him an evidentiary hearing to reexamine the factual issues resolved by the state courts because he was never afforded the opportunity to develop and litigate the factual bases for his federal constitutional claims. In a habeas proceeding, state court findings of fact enjoy a presumption of correctness. SeeRickman, 131 F.3d at 1153. In order for Coleman to prevail on this claim, he must rebut this presumption of correctness with clear and convincing evidence. See id. The record reveals that Coleman was given the opportunity to fully and fairly litigate his claims in the Ohio courts and failed to do so. Because Coleman has done nothing to rebut the presumption of correctness given to the factual issues resolved by the state court, his due process rights have not been violated by the denial of an evidentiary hearing in the federal habeas court.
VI.
Coleman raises a number of challenges to Ohio's capital punishment scheme both on its face and as applied to his case. The district court rejected each of Coleman's claims. We agree that the claims relating to Ohio's capital punishment scheme are either procedurally defaulted or are lacking in merit, substantially for the reasons given in the district court opinion.
VII.
Coleman also contends that he was denied the effective assistance of counsel during sentencing as guaranteed by the Sixth Amendment because his attorneys had a duty to investigate all possible mitigating factors, including those relating to Coleman's mental health background, and counsel breached this duty by failing to conduct a complete, independent investigation. We are not entirely convinced that Coleman properly raised this claim on direct appeal; indeed, we are inclined to think the claim was procedurally defaulted. However, the respondent stipulated that Coleman "may be deemed to have fairly presented [this] issue in state court," so we will address the merits of the claim.
Specifically, Coleman alleges four errors committed by his counsel at sentencing: (1) failure to demand a hearing and determination concerning both his competency to waive presentation of mitigation evidence and his refusal to cooperate with trial counsel in providing information for an appropriate investigation of mitigating factors; (2) failure to obtain the necessary reports and evaluations from the appropriate experts for use as evidence at the mitigation phase of the proceedings; (3) failure to raise the issue of the constitutional impropriety of Coleman effectively waiving the presentation of mitigation evidence at the sentencing phase of the proceedings; and (4) failure to request the appointment of an investigator, mitigation specialist, and/or psychologist to assist inthe investigation, preparation, and presentation of mitigating evidence.
To repeat, the Strickland Court articulated the following test for determining the effectiveness of counsel: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 466 U.S. at 687.
When elaborating on the "prejudice" prong of this test, the Strickland Court stated:
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. . . .
[T]he appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness. The defendant 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.
Id. at 693-94 (citations omitted).
In this case, counsel proceeded with a so-called "residual doubt theory" because Coleman instructed him to do so. Residual doubt has been described as a theory that creates "a lingering uncertainty about facts, a state of mind that exists somewhere between 'beyond a reasonable doubt' and 'absolute certainty.'" Franklin v. Lynaugh, 487 U.S. 164, 188 (1988) (O'Connor, J., concurring). In State v. McGuire, 686 N.E.2d 1112 (Ohio 1997), the Ohio Supreme Court explained:
Residual or lingering doubt as to the defendant's guilt or innocence is not a factor relevant to the imposition of the death sentence because it has nothing to do with the nature and circumstances of the offense or the history, character, and background of the offender....
Our system requires that the prosecution prove all elements of a crime beyond a reasonable doubt. Therefore, it is illogical to find that the defendant is guilty beyond a reasonable doubt, yet then doubt the certainty of the guilty verdict by recommending mercy in case a mistake has occurred. Residual doubt casts a shadow over the reliability and credibility of our legal system in that it allows the jury to second-guess its verdict of guilt in the separate penalty phase of a murder trial. . . .
Residual doubt is not an acceptable mitigating factor under R.C. 2929.04(B), since it is irrelevant to the issue of whether the defendant should be sentenced to death.
Id. at 1123 (emphasis added) (citations omitted).
We recognized in Mapes v. Coyle, 171 F.3d 408 (6th Cir.), cert. denied, 528 U.S. 946 (1999):
Under the Ohio statute, a capital defendant found guilty of a death specification has to present some mitigating evidence in order to avoid the death penalty. If a jury has nothing to weigh against the aggravating circumstance, it almost certainly must find that the aggravating circumstance outweighs the (nonexistent)mitigating circumstances, and recommend death.
Id. at 426.
And, the Mapes court also stated that "when a client faces the prospect of being put to death unless counsel obtains and presents something in mitigation, minimal standards require some investigation." Id. Recently, in Carter v. Bell, 218 F.3d 581, 600 (6th Cir. 2000), and Skaggs v. Parker, 235 F.3d 261, 269, 271 (6th Cir. 2000), this court has held that failure to investigate possible mitigating factors and failure to present mitigating evidence at sentencing can constitute ineffective assistance of counsel under the Sixth Amendment.
But, this case is distinguishable from Mapes, Carter, and Skaggs because after the various options for proceeding in the sentencing phase of the case were explained to him, Coleman directed his counsel to proceed with the residual doubt theory, which did not include the introduction of mitigating evidence relating to Coleman's past mental history. Coleman now argues that his counsel was ineffective for following his instructions because counsel should have realized that he lacked the competence needed to choose an appropriate sentencing strategy.
It is well established that a criminal defendant may not be tried unless he is competent. Godinez v. Moran, 509 U.S. 389, 396 (1993). To be competent for trial, a defendant must have "sufficient ability to consult with his lawyers and a reasonable degree of rational and factual understanding of the proceedings against him." United States v. Ford, 184 F.3d 566, 580 (6th Cir. 1999), cert. denied, 528 U.S. 1161 (2000). Godinez clarified that the level of competence needed to waive counsel is the same as that needed to stand trial. See Godinez, 509 U.S. at 399.
We believe that the Godinez standard should also apply here to determine whether Coleman was competent enough to instruct his counsel as to the appropriate strategy to pursue at sentencing. As the district court recognized, "Coleman acted as co-counsel to the extent of addressing the jury, examining at least one witness, and participating in side-bench conferences between counsel and the judge, as well as presenting his own motions." (Internal quotation marks omitted.) Nothing in the trial record that memorializes Coleman's extensive participation in the trial suggests that he lacked a "rational and factual understanding" of the proceedings against him and the potential impact of utilizing a residual doubt theory at sentencing.
While recent decisions from this court have emphasized that failure to present mitigating evidence at sentencing may constitute ineffective assistance of counsel under the Sixth Amendment, counsel may nevertheless make a reasonable decision that investigation is not necessary. See Strickland, 466 U.S. at 691. Indeed, the Strickland Court noted that "[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant." Id. Coleman admits that he did not cooperate with counsel regarding the investigation and identification of mitigating evidence; imposed restrictions upon counsel; and refused to submit to further psychological or psychiatric testing. After presenting Coleman with his options, counsel proceeded with the residual doubt theory only at Coleman's direction. Coleman was competent to stand trial and competent to assist his lawyer with strategic choices. He repeatedly advised his lawyer to proceed with the residual doubt theory and not to investigate possible mitigating factors. An attorney's conduct is not deficient simply for following his client's instructions.See Jones, 463 U.S. at 751-52. The petitioner was not deprived of his Sixth Amendment right to effective assistance of counsel at sentencing under the Strickland standard.
VIII.
For the foregoing reasons, the judgment of the district court is AFFIRMED
[Cite as In re Coleman, 95 Ohio St.3d 284, 2002-Ohio-1804.]
Ohio Supreme Court
No. 2002-0614
IN RE COLEMAN.
Submitted April 17, 2002 -- Decided April 19, 2002.
Habeas corpus -- Relief denied when adequate remedy existed on direct appeal -- Claim not raised in direct appeal -- Petition denied.
IN HABEAS CORPUS.
Per Curiam.
Petitioner, Alton Coleman, is scheduled to be executed on April 26, 2002, for the aggravated murder of Marlene Walters. He was convicted of this offense in 1985. We affirmed his conviction and death sentence in State v. Coleman (1988), 37 Ohio St.3d 286, 525 N.E.2d 792. Coleman has also completed the state postconviction review process. See State v. Coleman (Mar. 17, 1993), Hamilton App. No. C-900811, 1993 WL 74756, jurisdictional motion overruled (1993), 67 Ohio St.3d 1450, 619 N.E.2d 419. In State v. Coleman (1994), 70 Ohio St.3d 1407, 637 N.E.2d 5, we affirmed the judgment of the court of appeals rejecting Coleman's motion to reinstate his direct appeal. Subsequently, the United States District Court for the Southern District of Ohio denied Coleman federal habeas corpus relief. The United States Court of Appeals for the Sixth Circuit affirmed that judgment. Coleman v. Mitchell (C.A.6, 2001), 244 F.3d 533, certiorari denied (2001), __ U.S. __, 122 S.Ct. 405, 151 L.Ed.2d 307.
Coleman has now filed a petition in habeas corpus, invoking the original jurisdiction of this court under Section 2(B)(1)(c), Article IV of the Ohio Constitution.
Accompanying his petition is a motion for an alternative writ of habeas corpus, requesting a stay of execution.
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SUBJECT TO FURTHER EDITING
According to the petition, the state improperly removed 9 of 12 black prospective jurors by means of peremptory challenges at Coleman's trial in 1985.
Coleman objected, but the prosecutor declined to explain why he had challenged the jurors in question, and the trial court did not require the prosecutor to offer any explanation. Citing Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, Coleman contends that we should determine whether there was purposeful discrimination in the jury selection.
Coleman's petition is insufficient on its face to warrant habeas relief. "[H]abeas corpus, like other extraordinary writ actions, is not available when there is an adequate remedy at law." Gaskins v. Shiplevy (1996), 76 Ohio St.3d 380, 383, 667 N.E.2d 1194. See, also, State ex rel. Fryerson v. Tate (1999), 84 Ohio St.3d 481, 485, 705 N.E.2d 353; State ex rel. Pirman v. Money (1994), 69 Ohio St.3d 591, 593, 635 N.E.2d 26. Coleman had a fully adequate remedy at law: he could have raised this issue on direct appeal. He knew that the claim existed, for he had raised it in the trial court. Moreover, the United States Supreme Court issued its decision in Batson v. Kentucky on April 30, 1986, over seven months before the Court of Appeals for the First Appellate District issued its decision affirming his conviction.
Yet, as Coleman concedes, he did not raise this claim on direct appeal.
A litigant may not use habeas corpus as a substitute for appeal. See, e.g., Ex parte Womack (1960), 171 Ohio St. 392, 14 O.O.2d 150, 171 N.E.2d 514; In re Piazza (1966), 7 Ohio St.2d 102, 36 O.O.2d 84, 218 N.E.2d 459; Bellman v. Jago (1988), 38 Ohio St.3d 55, 526 N.E.2d 308; Ellis v. McMackin (1992), 65 Ohio St.3d 161, 602 N.E.2d 611.
Because Coleman had an adequate remedy at law by way of direct appeal, his claim is not cognizable in habeas corpus. Accordingly, Coleman's petition must be denied. Moreover, since Coleman's claim is at odds with settled habeas law, it merits neither a stay of execution nor an alternative writ. We therefore deny the motion for an alternative writ.
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SUBJECT TO FURTHER EDITING Writ denied; motion denied.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
