DECISION AND ORDER
O. PETER SHERWOOD, J.
In this negligence action to recover damages for personal injuries, defendants move for summary judgment dismissing the complaint. Plaintiff opposes the motion. For the reasons that follow, the motion is granted and the complaint is dismissed.
Factual Background
On September 20, 2008, plaintiff Donna Pepe allegedly was injured when she fell from a horse while on a trail ride at premises owned by defendant Juckas Stables, Inc. ("Juckas Stables"), a riding stable located in Orange County, New York. Defendant Karen Juckas Hossan, President, sole officer and shareholder of Juckas Stables, stated at her deposition that in September 2008, Juckas Stables consisted of 117 acres. It owned 22 horses and had two part-time wranglers, Carol Livingston ("Cal") and Chris Atkinson ("Chris"). Ms. Hossan supervised and managed the operation of Juckus Stables. Plaintiff contends in her bill of particulars that the horse she was riding at the time of her accident had known vicious propensities in that it was not specifically bred or trained to be ridden, was an improper candidate to be a trail horse based upon his age, weight and girth, and was known to have a history of bucking (Affirmation of Rennee A. Breitner in Support of Motion [Breitner Affirm.], Ex. "C"). Plaintiff contends that defendants knew of such horse's vicious propensities and, therefore, are strictly liable for the injuries she sustained. Plaintiff contends further that her injuries were caused by defendants' negligence in failing to advise her of the subject horse's dangerous nature, to inquire as to plaintiff's experience as a rider so as to determine if she was a proper candidate to ride such horse, or to guide and instruct her in the proper handling of such horse.
Plaintiff, thirty-nine years old at the time of the accident, testified at her deposition that she had never taken any horseback riding lessons and first rode a horse at the age of twenty-three for about one hour with a group in Prospect Park (Breitner Affirm. ¶ 9, Ex. "D", Pl's EBT pp. 8, 17). Plaintiff did not ride a horse again until she was 33 years old when she went to the Dominican Republic. That ride consisted of an hour-long group ride on a trail and the beach in which the riders walked the horses and did not trot, canter or gallop for fear of overheating the horses ( id. pp. 14-15). From the age of 33 to the age of 39, plaintiff rode about once a year for an hour each time ( id. p. 14). Four of those rides were at the same small stable in the Dominican Republic ( id.). The fifth time plaintiff rode during this period was at a stable in Cancun in the course of which she trotted on a horse for a short distance ( id. p. 17).
On September 20, 2008, plaintiff proceeded from Manhattan to Juckas Stables with seven people from a group called Northeast Hiking that she had found through Meetup.com., an internet website designed to link people with similar interests. The group was scheduled for a two-hour trail ride which was to begin at 11:00 a.m. However, the group got lost and arrived late. Upon their arrival, the group was met by Ms. Juckas who handed the group leader release forms and instructed him to have each person write down his or her name and address ( id. pp. 31-32). The form titled "Participant Agreement, Release and Assumption of Risk", signed by plaintiff, was introduced at her deposition and provides, in pertinent part, as follows:
1. I acknowledge that horseback trail rides and lessons entail known and unanticipated risks which could result in physical or emotional injury, paralysis, death, or damage to myself, to property or to third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of the activity.
* * *
2. I expressly agree and promise to accept and assume all the risks existing in this activity. My participation in this activity [is] purely voluntary, and I elect to participate in spite of the risks.
3. I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless [Juckas Stables] from any and all claims, demands, or causes of action, which are in any way
connected with my participation in this activity or my use of [Juckas Stables'] equipment or facilities (Ex. "E").
After signing the release, plaintiff went with her group to the tack room in a barn where she picked out a helmet and was then led out of the barn by Cal who was going to be leading their trail ride ( id. pp. 34-35). Prior to selecting a horse for plaintiff, Ms. Hossan asked plaintiff what level of riding experience she had. Plaintiff responded that she had experience ( id. p. 38). Plaintiff testified that Cal and Ms. Hossan selected a five-year-old, gray and white Percheron named Romeo for her. Romeo was larger than the other horses at the stable, measuring somewhere between five and one-half feet (according to Ms. Hossan Ex. "F", p. 65) to approximately six feet (according to Chris Atkinson Pl's Ex. "1", p. 23), and weighing between 1200 to 2000 pounds (Ex. "F", p. 65; Ex. "H", pp. 84-85; Pl's Ex. "1", p. 89). Cal led Romeo to a mounting block, saddled and placed the reins on him, and then assisted plaintiff in mounting Romeo, which she did without difficulty (Ex. "D", pp. 40-43).
After all members of the group had mounted their horses, Cal lined them up in the order that they would proceed on the trail ride. Cal's horse was the lead horse, followed by another horse. Plaintiff and Romeo were in the third position ( id. p. 50). After all the horses were lined up, Cal led them to a corral where the riders walked in a circle while Ms. Hossan observed them to determine if the were in proper riding position ( id. p. 53). They then proceeded as a group to another field where they were again met by Ms. Hossan, who plaintiff claimed indicated she did not like Romeo's position in the lineup next to the particular horse that was second ( id. pp. 55-56). After Cal assured Ms. Hossan that it was fine and she would "take care of it", Ms. Hossan left and the group proceeded to leave the field and walk on a dirt trail through a wooded area ( id. p. 56). Plaintiff and Romeo were still third in the lineup ( id.). When they reached the perimeter of another field about five minutes later, Cal asked if anyone wanted to trot ( id. p. 58). Plaintiff and two other girls in the group responded affirmatively ( id. pp. 58-59). At this point Cal advised plaintiff that Romeo liked to put his head down between his knees and try to buck the rider. Cal told plaintiff several times that if Romeo tried to do this, she should pull his head up with the reins and not let him do it ( id. p. 59). Cal also told plaintiff that she had been working with Romeo to correct this behavior ( id.). Plaintiff expressed concern, but Cal assured her that she "was pretty sure she had gotten all the kinks out" ( id. p. 60). Plaintiff did not request another horse.
Cal led plaintiff and two other women to another area, while Chris remained with the rest of the group. The group plaintiff was in proceeded to trot on their horses parallel to one another for a minute or two before Cal had them slow to a walk. Nothing eventful occurred during this initial trot. They reunited with the other group after which Cal again asked if anyone wanted to trot. The same group as before indicated they did ( id. pp. 66-67). They proceeded back through the wooded area into the field where they had trotted before ( id. p. 69). Plaintiff claims that Cal then took off without warning with plaintiff and the other two riders following. Instead of trotting, they were at a full run ( id.). Plaintiff had never run on a horse before. During the run that lasted less than a minute, Romeo started to put his head down between his knees and plaintiff pulled his head up as she had been instructed. Romeo repeated this behavior two or three times and each time plaintiff pulled on the reins to pull his head up ( id. pp. 70-71). The third time Romeo put his head down, plaintiff pulled on the reins but was unable to get his head up. She then had the sensation of being up in the air. Her feet were dislodged from the stirrups and she was thrown from the horse, hitting the ground on her tail bone and sustaining injuries ( id. pp. 73-77).
Ms. Hossan testified at a deposition that she purchased Romeo in 2006 from a man in Gardiner, New York. She was told at the time that Romeo was three years old (Ex. "F", p. 19). Prior to purchasing the horse, Ms. Hossan asked the owner whether Romeo was gentle and she observed Romeo for about fifteen minutes being ridden and put through different paces by her wrangler. She saw no problems with the horse and purchased him. In September 2008, Romeo was Juckus Stables' newest horse and, because of his large size, Ms. Hossan assigned him to big, experienced people (Ex. "F", p. 31). Ms Hossan denied that any of her wranglers had told her that Romeo would put his head between his legs or that he bucked. She claimed that she had a reputation of having good horses, gentle horses that could be ridden and that she trusted, and she would not keep a horse that bucked (Ex. "G", p. 100),
Ms. Hossan testified further that at Juckus Stables she questions all riders about their level of experience in horseback riding and makes a visual assessment of the customers, considering their respective size and observing how they approach the horses, before they go out on trail rides. She is generally the person who assigns the horses to customers based upon her assessment ( id. p. 53). After the riders mount their assigned horse, Ms. Hossan instructs them on how to hold the reins, sit properly on the horse, place their feet in the stirrups, stop the horse, and get the horse to go to the right or the left. She also tells riders to keep a distance of five or six feet between their horse and the horse in front of them and to pull the horse's head up with the reins if the horse tries to eat along the way (Ex. "F" pp. 66-70). She observes all riders walk in a circle once or twice around the paddock before they head out for the trail ride.
Ms. Hossan recalled that the group plaintiff was in arrived late for their trail ride on September 20, 2008, but she does not remember when they actually arrived. She remembered that plaintiff had expressed an interest in riding Romeo (Ex. "G", pp. 119-120). Ms. Hossan permitted plaintiff to ride Romeo after plaintiff told her that she was an experienced rider and, despite her initial objection, after she agreed to wear a helmet ( id. p. 123, 125). Ms. Hossan observed plaintiff walking Romeo in the paddock and determined that she was an experienced rider based upon her posture, the way her heels were down and the manner in which she held the reins ( id. p. 137). Because Romeo is a big horse with a long stride, Ms. Hossan would have wanted him to be first or second in the lineup on the trail ride ( id. at 140). Ms. Hossan later learned from her wrangler Chris that plaintiff had fallen off Romeo ( id. p. 145). The accident occurred about 1:15 p.m.
At her deposition, Cal, an experienced wrangler who began riding horses at eight years of age, testified that she began working at Juckus Stables in the summer of 2008. Her duties included feeding and tacking the horses, cleaning the barn and conducting trail rides and lessons (Ex. "H", p. 36). Her duties did not involve training horses ( id. p. 9). Cal described Romeo as a mixed breed draft horse, part Percheron and part Belgian ( id. p. 27). Although Cal recalled being told that Romeo was originally trained in Pennsylvania by Amish people as a "ride and drive" horse, that is to pull a cart, he also was ridden ( id. p. 33). Although Cal preferred to ride a horse named Cracker as a lead horse on trail rides at Juckus Stables ( id. p. 38), Cal claimed that she and the other wrangler Chris also rode Romeo as a lead horse. Sometimes she would ride Romeo and have him gallop just for fun, but not as a formal training ( id. pp. 81-82). In addition, Romeo was ridden regularly by customers ( id. pp. 38, 67). Cal claimed that Romeo had quite a fan club ( id. p. 38). She denied that Romeo was reserved for any particular type of rider. She further denied that Romeo had a habit of putting his head down or bucking ( id. p. 37). Romeo had no problems with any other horse at Juckas Stables ( id p. 93).
Cal recalled advising plaintiff that if Romeo put his head down she should correct this by pulling back on the reins ( id. pp. 78, 80). Plaintiff responded that she had ridden about ten times and it would not be a problem for her to pull Romeo's head up ( id.). Based upon her own observations of plaintiff during the trail ride, Cal believed plaintiff to be a confident rider. Cal explained that Romeo, being a very large draft horse, would normally lower his head when he trotted or went at any speed above a trot ( id.). Although Cal acknowledged that a rider could fall off Romeo if he were ridden at a run ( id. p. 80), the pace during trail rides is either walking or trotting ( id. p. 81).
Just prior to plaintiff's accident, Cal was leading the group in trotting. She had her horse at a canter pace to remain in front of the group and was partially twisted in her saddle during the duration of the ride to be able to talk with and observe the group ( id. pp. 92-93). Cal did not notice Romeo putting his head down during the ride ( id. p. 94). Plaintiff's accident occurred when Romeo, who was walking at the time, came too close to the horse in front of him and as he stepped to the right to avoid the other horse, plaintiff fell onto the ground off Romeo's right shoulder ( id. p. 95). Cal asked plaintiff if she was o.k. and also inquired as to what happened. Plaintiff told her that her back hurt and that she did not know what had happened ( id. pp. 98-99).
Chris, an experienced wrangler who began riding at the age of seven (Pl's Ex. "1", Chris Atkinson EBT, p. 10), testified at a deposition that she began working for Juckas Stables in April 2008 ( id. pp. 11-12) and was employed there for less than a year ( id.). Chris claimed that Cal was a big fan of Romeo and liked to use him because she thought he was a wonderful horse ( id. p. 73). Chris stated that although she thought Cal was mostly working with Romeo because she loved him ( id. p. 26), Cal had also told Chris that she was working with Romeo because of his habit of putting his head down. However, Chris said she never had a problem with Romeo lowering his head ( id. pp. 26-27, 29) and she never saw him buck ( id. p. 28). Chris used Romeo as a lead horse on at least three occasions and chose him because he was calm and was a good horse to have in front of a group ( id. p. 33). Chris further described Romeo as a very quiet, good trail horse ( id. pp. 101-102). However, because Romeo was so tall, Chris had more difficulty getting on and off him quickly if she needed to dismount to pick up something a customer dropped. Hence, because it was important for her to get on and off the horse quickly, Chris tended to use another horse, Crackers, as the lead horse ( id. pp. 34-35, 37).
During the trail ride on the date of plaintiff's accident, the group was split into two, with Chris remaining with the group that wanted to continue walking and the other group, including plaintiff, going with Cal because they wanted to trot ( id. pp. 75, 79). At some point, Chris noticed that all the horses in Cal's group were standing around and she knew there was a problem. She rode up to the group and saw that plaintiff was on the ground and that Romeo was standing unattended nearby ( id. pp. 80-81). Chris was told by someone in the group that plaintiff had fallen off her horse. No one indicated that plaintiff was bucked off her horse ( id. pp. 81-82). Chris filled out an accident report based upon what either Cal, plaintiff, or a gentleman who was part of the group, told her ( id. pp. 93-94). In response to a question on the accident form asking "Did the injured party state that he or she contributed to the accident in any way", the "Yes" box was checked with the statement "It was my fault. I lost my balance." ( id. p. 95).
On or about November 3, 2008, plaintiff commenced the instant action against Juckus Stables, Ms. Hossan, individually, and "Jane Doe", "a trail ride guide". The amended complaint alleges two causes of action sounding in: (1) negligence based, inter alia, upon defendants' knowledge of Romeo's vicious propensities to buck riders, that Romeo was a draft horse not intended to be ridden, and their failure to properly assess plaintiff's level of experience, to warn her of Romeo's vicious propensities, or to guide and instruct her as to the proper handling of Romeo; and (2) strict liability for permitting a horse with known vicious propensities to be ridden.
By this motion, defendants seek to dismiss the complaint as against Ms. Hossan, individually, on the ground that as an officer and shareholder of defendant corporation, acting within the scope of those positions, she is not liable for the obligations of the corporation. Defendants also seek dismissal on the ground that plaintiff was aware of the dangers associated with horseback riding and assumed the risks inherent in that activity.
Discussion
Summary judgment is a drastic remedy which will be granted only when the party seeking summary judgment has established that there are no triable issues of fact ( see, CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 329; Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395). To prevail, the party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law tendering evidentiary proof in admissible form, which may include deposition transcripts and other proof annexed to an attorney's affirmation ( see, Alvarez v Prospect Hosp., supra; Olan v Farrell Lines, 64 NY2d 1092; Zuckermcm v City of New York, 49 NY2d 557). Absent a sufficient showing, the court should deny the motion without regard to the strength of the opposing papers ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851), However, once the initial showing has been made, the burden shifts to the party opposing the motion for summary judgment to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact ( see, Kaufman v Silver, 90 NY2d 204,208 [1997]). Although the court must carefully scrutinize the motion papers in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference ( see, Negri v Stop Shop, Inc., 65 NY2d 625) and summary judgment should be denied where there is any doubt as to the existence of a triable issue of fact (see, Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223,231 [1978]), bald, conclusory assertions or speculation and "a shadowy semblance of an issue" are insufficient to defeat a summary judgment motion ( S.J. Capalin Assoc. v Globe Mfg. Corp., 34 NY2d 338; see, Zuckerman v City of New York, supra; Ehrlich v American Moninga Greenhouse Manufacturing Corp., 26 NY2d 255, 259). The role of the court in deciding a motion for summary judgment is not to resolve issues of fact or to determine credibility issues, but simply to determine whether such issues of fact requiring a trial exist ( see, Powell v HIS Contractors, Inc., 75 AD3d 463 [1st Dept 2010]; F. Garofalo Elec. Co. v New York Univ., 300 AD2d 186 [1st Dept 2002]).
Under the doctrine of primary assumption of risk, a participant in a recreational activity "may be held to have consented, by [his or her] participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation" ( Turcotte v Fell, 68 NY2d 432, 439; see Morgan v State of New York, 90 NY2d 471, 484; Dalton v Adirondack Saddle Tours, Inc., 40 AD3d 1169, 1171 [3d Dept 2007]; Kirkland v Hall, 38 AD3d 497 [2d Dept 2007]). It has been consistently held that inherent in recreational or sporting events involving horses is injury caused by being kicked, bitten, falling, being thrown, or the horse acting in a sudden or unintended manner ( see Stanislav v Papp,___AD3d, 2010 WL 4721332 [1st Dept 2010]; Dalton, 40 AD3d at 117; Kirkland, 38 AD3d at 498; Tilson v Russo, 30 AD3d 856 [3d Dept 2006]).
Here, the defendants have established, prima facie, their entitlement to judgment as a matter of law based upon evidence that plaintiff, who had sufficient experience riding horses to be aware and appreciate the known dangers of horseback riding, voluntarily mounted Romeo and proceeded with this recreational activity and, therefore, assumed the risk of her injuries when she was either thrown from the horse when he bucked or when she fell off.
In opposition, plaintiff claims a triable issue of fact exists as to whether defendants knew of and concealed Romeo's dangerous propensity to buck when ridden at a gait faster than a walk, whether defendants failed to provide plaintiff with a proper mount based upon her relative inexperience riding horses, and whether, since plaintiff could not have known of Romeo's concealed dangerous propensity, she may be said to have assumed the risk of being bucked when she proceeded to ride Romeo at a faster gait. The court finds that plaintiff has failed to raise a triable issue of fact as to defendants' negligence. Although plaintiff claims that both Cal and Chris concealed from Ms. Hossan that Romeo had a dangerous tendency to buck and thereby increased the inherent risks of the activity, the record does not support this allegation. Even accepting plaintiff's version of her accident, the court finds that the circumstances did not presented dangers over and above the usual dangers inherent in the sport of horseback riding such that defendants may be held liable for injuries caused by the horse ( see Tilson v Russo, 30 AD3d 856, 858 [3d Dept 2006]; cf. Haggerty v Zelnick, 68 AD3d 721 [2d Dept 2009] [issue of fact whether defendants knew or should have known about horse's vicious propensity to rear and kick]; Campbell v City of New York, 31 AD3d 594 [2d Dept 2006]; Lipari v Babylon Riding Center, 18 AD3d 824 [2d Dept 2005] [[defendant knew of horse's dangerous behavior involving sudden bolting, running and rearing]).
Plaintiff elected to participate in this activity knowing that she could fall off or be thrown from the horse and chose to continue with the ride even after Cal advised her that Romeo might lower his head. Indeed, while she may not have appreciated the risk posed by this behavior when she first mounted Romeo, she certainly must have appreciated the risk after Romeo proceeded to lower his head on two occasions before the accident. On both occasions, plaintiff succeeded in raising Romeo's head by pulling on the reins, as Cal had instructed. Moreover, "[i]t is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results" ( Maddox v City of New York, 66 NY2d 270, 278; see Tilson v Russo, 30 AD3d 856, 858 [3d Dept 2006]; Hund v Gramse, 5 AD3d 1036, 1038 [4th Dept 2004]; Papa v Russo, 279 AD2d 744, 745 [3d Dept 2001]).
Even considering the affidavit submitted in opposition of plaintiff s equestrian expert, Janet King, who identifies herself as an owner and operator of a business which organizes and provides trail rides and maintains horse stock, the court finds that plaintiff has not succeeded in raising an issue of fact precluding the grant of summary judgment. Ms. King states that defendants' wranglers, Cal and Chris, were negligent in failing to inform Ms. Hossan of Romeo's propensity to buck when ridden at a gait faster than a walk; that Ms. Hossan was negligent in failing to properly supervise her employees and learn that Cal was working with Romeo to break him of his dangerous propensities; that defendants were negligent in making Romeo available for trail rides; and that defendants were negligent in failing to properly assess plaintiff's level of experience and permitting her to ride Romeo. Ms. King's affidavit is predicated upon n assumption that is not established by the record, namely, that Romeo had a tendency to buck and that such behavior was concealed from plaintiff. The affidavit cannot create a legal duty of care where none existed. Here, plaintiff possessed sufficient experience in horseback riding to understand and appreciate the usual and inherent risks of such activity and she assumed the risk of injury from this large, strong and unpredictable animal. Her injuries were caused by an accident inherent to the activity of horseback riding. Nothing in this record supports a finding that plaintiff's injuries were caused by any defect or unreasonable behavior of her horse or that defendants' behavior created an unanticipated risk or increased the known risks ( see Stanislav, 2010 WL 4721332; Kirkland v Hall, 38 AD3d at 498; Tilson v Russo, 30 AD3d at 859).
Lastly, the court finds that the release executed by plaintiff is enforceable to the extent that it insulates defendants from liability for injuries caused by an incident inherent in the activity of horseback riding rather than by reason of defendants' negligence ( see Glenn v Annunziata, 72 AD3d 886, 888 [2d Dept 2010]; Trummer v Niewisch, 17 AD3d 349, lv denied 5 NY3d 712; Conteh v Majestic Farms, 292 AD2d 485, 486 [2d Dept 2002]).
If the court were not dismissing the complaint in its entirety, it would dismiss as against defendant Karen Juckus Hossan individually. Plaintiff has not offered sufficient proof that Ms. Hossan abused her privilege of doing business in the corporate form to perpetrate a fraud or other tort or used her position for personal rather than corporate gain so as to warrant disregarding the corporate form and holding her personally liable for plaintiff's injuries ( see, Matter of Morris, 82 NY2d 135, 141; Diaz v Siegel, 23 AD3d 251, 252 [1st Dept 2005]).
Conclusion
Based upon the foregoing discussion, it is hereby
ORDERED that defendants' motion for summary judgment is granted and the complaint is dismissed in its entirety with costs and disbursements to defendants as taxed by the Clerk upon submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly.
This shall constitute the decision and order of the court.
decision to deny Dixon's petition for habeas corpus, at least in part, on "new, substantial evidence,"
Brown, 551 F.3d at 429, not previously before the state courts. Therefore, AEDPA will not apply if the district court properly allowed Dixon to admit new evidence.
In order to admit new evidence on a habeas petition before a district court, the following standard must be met: "(1) the petitioner must not be at fault for failing to develop the evidence in state court, or (2) if the petitioner is at fault, the narrow exceptions set forth in 28 U.S.C. § 2254(e)(2) apply." Brown, 551 F.3d at 429 (citing Holland v. Jackson, 542 U.S. 649, 652-53, 124 S.Ct. 2736, 159 L.Ed.2d 683 (2004)). We review a district court's decision to hold an evidentiary hearing under an abuse-of-discretion standard. Lott v. Coyle, 261 F.3d 594, 602 (6th Cir. 2001). The district court found that Dixon diligently sought an evidentiary hearing in the state courts, was repeatedly denied, and was not at fault for failing to develop the record in state court. (R. 79, at 21.) If a petitioner is not barred by 28 U.S.C. § 2254(e)(2) from receiving an evidentiary hearing, the district court has discretion to grant a hearing, Schriro v. Landrigan, 550 U.S. 465, 468, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007), but it must consider whether a hearing "could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Id. at 474, 127 S.Ct. 1933. Dixon alleged that his counsel failed to create a mitigation strategy and had no strategic reason for their failure to present mitigation evidence. The district court correctly concluded that if these factual claims were true, it could entitle Dixon to relief on his ineffective assistance claim. Therefore the district court did not abuse its discretion in granting an evidentiary hearing on this claim.
Because the district court's decision rested on properly admitted "new, substantial evidence," AEDPA is inapplicable and "the pre-AEDPA standard of review [applies]: de novo for questions of law (including mixed questions of law and fact), and clear error for questions of fact." Brown, 551 F.3d at 430. "The performance and prejudice components of Strickland present mixed questions of law and fact and are reviewed de novo." Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008).
II.
To prevail on an ineffective assistance of counsel claim, "the petitioner must show that: (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial." Keith v. Mitchell, 455 F.3d 662, 670 (6th Cir. 2006) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052 (1984)).
A. Deficient Performance
Dixon contends he was denied the effective assistance of counsel because his counsel failed to investigate and present relevant mitigating evidence during the penalty phase. Dixon had the assistance of Joe Scalzo and Mark Geudtner during both the guilt and penalty phases of his trial. At the outset, they divided the responsibilities between them; Geudtner was responsible for the pretrial motions and the trial, and Scalzo was responsible for the penalty proceedings. In preparation for the penalty phase, they hired Ericson, a licensed private investigator and mitigation specialist, and Dr. Layne, a clinical psychologist. Ericson completed a fifty-one page mitigation report that included extensive evidence of Dixon's dysfunctional family and social history, and gave the report to Scalzo. Ericson met with defense counsel early in the process, but had no contact with them after that and never discussed his report with either Scalzo or Geudtner. Dr. Layne conducted a battery of psychological tests on Dixon, but concluded that the results would not have been helpful to Dixon in the penalty phase and did not complete his report.
Geudtner testified that he realized at the end of the trial that Scalzo had prepared insufficiently for mitigation. Thus, Geudtner spent the weekend after the guilty verdict was rendered developing three arguments to put before the jury in the mitigation phase. Geudtner planned to introduce evidence showing that: (1) Dixon had served eight months in jail for a crime for which he was later exonerated by DNA evidence; (2) Dixon offered to plead guilty if the death penalty were not sought and the prosecution rejected his offer; and (3) other capital cases in the area did not result in the death penalty for those defendants. Geudtner did not seek a ruling from the trial court on whether such evidence would be admissible at the penalty phase, however, and the court prohibited Geudtner from presenting it. Geudtner explained that he did not seek a ruling on the admissibility of this evidence prior to the start of the penalty phase because he did not want to give the prosecution a preview of his strategy. Unfortunately for Dixon, this left defense counsel unclear about their overall strategy; the trial court granted a continuance only until that afternoon for counsel to develop a mitigation strategy.
To the extent that Geudtner tried to compensate for his co-counsel's failures, his efforts are laudable. They do not, however, constitute effective assistance. Failure to begin mitigation preparations before the close of the guilt phase is objectively unreasonable under Strickland. See Jells v. Mitchell, 538 F.3d 478, 493 (6th Cir. 2008) (collecting cases).
A defendant has "a constitutionally protected right — to provide the jury with the mitigating evidence that his trial counsel either failed to discover or failed to offer." Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In order to prove his counsel were deficient, Dixon must show "that his `counsel's representation fell below an objective standard of reasonableness.'" Awkal v. Mitchell 613 F.3d 629, 638 (6th Cir. 2010) (en banc) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052). When deciding whether counsel's assistance was deficient at the penalty phase we do not decide "`whether counsel should have presented a mitigation case,' but rather, `whether the investigation supporting counsel's decision not to introduce mitigating evidence of [petitioner's] background was itself reasonable.'" Jells v. Mitchell, 538 F.3d 478, 491 (6th Cir. 2008) (quoting Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). When determining the reasonableness of counsel's investigation, the "quantum of evidence known to counsel must be considered, as well as whether that evidence should have led a reasonable attorney to investigate further." Clark v. Mitchell, 425 F.3d 270, 284 (6th Cir. 2005) (citing Wiggins, 539 U.S. at 527, 123 S.Ct. 2527).
Dixon argues that his counsel were deficient in failing to introduce mitigating evidence of Dixon's dysfunctional family and social history, which included domestic violence, possible incest, alcoholism, and negative role models, and by failing to call the following witnesses: his. mother, older brother, and his foster parents Nancy and Dale Wolfe. The Warden argues that defense counsel's "life means life" mitigation theme was a strategic decision not to introduce details of Dixon's past in order to avoid the admission of evidence of Dixon's bad character and prior bad acts. Dixon claims that it was deficient for his counsel not to consider a way to cabin witnesses' testimony to avoid introduction of such evidence and for failing to make a motion in limine to exclude his prior conviction.
Strickland dictates that counsel's performance must be evaluated "under prevailing professional norms." 466 U.S. at 688, 104 S.Ct. 2052. "[T]he ABA standards for counsel in death penalty cases provide the guiding rules and standards to be used in defining the `prevailing professional norms' in ineffective assistance cases." Hamblin v. Mitchell, 354 F.3d 482, 486 (6th Cir. 2003). The Supreme Court has clarified though, that "[restatements of professional standards . . . can be useful as `guides' to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place." Bobby v. Van Hook, ___ U.S. ___, 130 S.Ct. 13, 16, 175 L.Ed.2d 255 (2009) (citing Strickland, 466 U.S. at 688, 104 S.Ct. 2052) (explaining that looking to the ABA guidelines announced eighteen years after [the defendant] went to trial ignored the limitations set by Strickland). The guilt and penalty phases of Dixon's trial were conducted in October-November 1995. Therefore, the guidelines in place at that time, the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989), are useful in determining what constitutes reasonable representation. As explained in the guidelines, "[c]ounsel should consider all pretrial motions potentially available" to address issues such as "matters of evidence or procedure at either the guilt/innocence or penalty phase of trial which may be appropriately litigated by means of a pretrial motion in limine." Id. at § 11.5.1. With regards to presentation of evidence at sentencing, counsel should present "all reasonably available evidence in mitigation unless there are strong strategic reasons to forego some portion of such evidence." Id. at § 11.8.6. The ABA guidelines support the commonsense notion that when faced with the possibility of the prosecution introducing damaging rebuttal evidence, counsel should make reasonable efforts to prevent this from occurring.
The 2003 revised edition explicitly addresses this scenario and states that
when faced with the possibility that any portion of the defense case will open the door to the prosecution's presentation of otherwise inadmissible aggravating evidence[,] [c]ounsel should pursue all appropriate means (e.g., motions in limine) to ensure that the defense case concerning penalty is constricted as little as possible by this consideration.
ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, § 10.11 (2003 rev. ed.).
Neither of Dixon's attorneys filed a motion in limine to prohibit Dixon's past conviction from being admitted, nor did either attorney speak with any of the potential witnesses or Ericson to develop a strategy to present mitigating evidence without permitting the admission of potentially aggravating evidence from Dixon's life. Of course, if there were no legal avenue for counsel to pursue to prevent such evidence from being admitted, failure to do so could not be considered unreasonable. A brief examination of Ohio law is therefore necessary to determine whether counsel's lack of investigation of this issue was constitutionally deficient.
Defense counsel filed a motion to exclude any evidence of other crimes, wrongs, or acts on December 5, 1993, almost two years before the trial began. The trial court denied the motion finding that "any evidentiary issues dealing with other criminal acts [would be] dealt with during trial as they arose." Nothing in the record indicates this issue was ever revisited by either party or the court.
Under Ohio law, the "history, character, and background of the offender" is a statutory mitigation factor, Ohio Rev. Code § 2929.04(B), and defendants have "great latitude in the presentation of evidence of [mitigation] factors." Ohio Rev. Code § 2929.04(C). The Ohio Supreme Court has found that the prosecution's burden of proving beyond a reasonable doubt that the aggravating factors outweigh the mitigating factors "empow[ers]" the prosecutor "to rebut mitigation evidence offered by the defendant where the prosecutor has a good faith basis for believing that such evidence is false." State v. DePew, 38 Ohio St.3d 275, 528 N.E.2d 542, 554 (1988). But this rebuttal is limited "to those instances where the defense offers a specific assertion, by a mitigating witness or by the defendant, that misrepresents the defendant's prior criminal history." State v. Henness, 79 Ohio St.3d 53, 679 N.E.2d 686, 698 (1997) (emphasis added). Additionally, evidence of a defendant's good character presented at mitigation allows the prosecution to rebut with evidence of the defendant's prior bad acts. Ohio R. Evid. 404(A)(1); see also State v. Jalowiec, 91 Ohio St.3d 220, 744 N.E.2d 163, 177-78 (2001) (explaining that defendant opened the door to rebuttal by "call[ing] several witnesses [at sentencing] to testify about what a good person he was.")
The Ohio rules of evidence apply to the penalty phase of a capital trial. State v. Lorraine, 66 Ohio St.3d 414, 613 N.E.2d 212, 220 (1993).
The relevant law demonstrates that evidence misrepresenting Dixon's criminal past, or evidence of his good character, might have opened the door to rebuttal evidence by the prosecution. See Jalowiec, 744 N.E.2d at 177 ("The trial court has discretion to determine what relevant evidence is admissible as proper rebuttal."). But more importantly, the details of Dixon's dysfunctional family history would not. We previously found this to be true when interpreting Ohio law in Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003). In Mason, we explained that, "[testimony that simply put Mason's childhood into context without misrepresenting it would not have been subject to the prosecutor's rebuttal evidence[.]" Id. at 627; see also id. at 622 ("[Testimony in this case concerned Mason's troubled childhood . . . which would have aided him at sentencing because it did not give the prosecutor the same opportunity for rebuttal that evidence about good character or rehabilitation potential could have.")
This case is similar to Mason in another important respect. In Mason, defense counsel obtained some mitigating information, and we explained that "the limited information obtained by defense counsel did not discharge counsel's duty to investigate, but triggered the duty to investigate." Mason, 320 F.3d at 624 n. 12. To determine the reasonableness of counsel's investigation, we look at the "quantum of evidence known to counsel" and whether "that evidence should have led a reasonable attorney to investigate further." Clark, 425 F.3d at 284 (citing Wiggins, 539 U.S. at 527, 123 S.Ct. 2527) (emphasis added).
Here, Dixon's counsel had a detailed, thorough mitigation report and several witnesses willing and available to testify, yet neither attorney investigated a way to use any of this evidence, either by discussing with potential witnesses or Ericson a way to limit their testimony to only those subjects that would not "open the door" for the prosecution, or by filing a motion in limine in the hope that the court would deny admission of Dixon's prior conviction. Scalzo explained that he was concerned about the jury learning of Dixon's criminal history, but also acknowledged that the evidence could be found too prejudicial to be admitted. Scalzo could not remember if he and Geudtner ever discussed the possibility of filing such motions, and there is no evidence they ever discussed the mitigation phase. Geudtner stated that he left preparation of the mitigation phase entirely to Scalzo, and realized at the end of the guilt-phase portion of the trial that Scalzo "hadn't prepared much" and "pretty much fell flat on his face." He described Scalzo's performance as "overwhelmingly deficient."
To determine the reasonableness of counsel's mitigation strategy, "`a reviewing court must consider the reasonableness of the investigation said to support that strategy.'" Jells v. Mitchell, 538 F.3d 478, 492 (6th Cir. 2008) (quoting Wiggins, 539 U.S. at 527, 123 S.Ct. 2527). Given the "great latitude" Ohio grants defendants in the presentation of mitigation evidence, "professionally competent assistance in Ohio capital cases" requires a "reasonably thorough investigation into all possible mitigation evidence that would present a sympathetic picture of the defendant's family, social, and psychological background." Id. at 495-96 (citing Wiggins, 539 U.S. at 524, 123 S.Ct. 2527). "Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052 (emphasis added); see also Spisak v. Mitchell, 465 F.3d 684, 704 (6th Cir. 2006) ("[A]ny decision to forego mitigation evidence is unreasonable if not made after a reasonable determination to cease further investigation."), overruled on other grounds by Smith v. Spisak, 554 U.S. ___, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010). If counsel stops short of a thorough investigation, however, "`the deference owed to counsel's strategic judgments about mitigation is directly proportional to the adequacy of the investigations supporting such judgments.'" Eley v. Bagley, 604 F.3d 958, 973 (6th Cir. 2010) (quoting Jells, 538 F.3d at 492).
Dixon's counsel did not speak with any of the witnesses who could have testified on Dixon's behalf. Without any investigation regarding the extent to which rebuttal evidence might be allowed, defense counsel abandoned the idea of introducing any evidence related to Dixon's extremely dysfunctional family in favor of a "life means life" mitigation theme. Scalzo described his mitigation strategy as, "to go on more economical things: How long is a person supposed to live while in prison, how much is it going to cost, versus giving him death, from an economic standpoint." Geudtner, who began working on the penalty phase the weekend before it was set to begin, after learning Scalzo had prepared nothing, testified that he never read Ericson's report. Counsel's failure to make a thorough investigation of either law or facts made "a fully informed decision with respect to sentencing strategy impossible." Wiggins, 539 U.S. at 527-28, 123 S.Ct. 2527. Counsel's decision not to present any of the evidence available to them in mitigation was not reasonable and their performance at the penalty phase was deficient under Strickland.
Counsel's deficient performance at the mitigation phase is particularly troubling when viewed within the larger trial context. Counsel put on no case-in-chief and cross-examined only three of the state's fifteen witnesses at the guilt-phase portion of the trial. The trial transcript of the state's witnesses was 364 pages long, with only eight of the pages covering cross-examination. Scalzo agreed that "there was very little cross-examination of any witness." Geudtner described their strategy once the trial started as to "pretty much just to sit there and take it," because he did not feel that they had "much of a chance to prevail on the guilt phase of the trial."
Furthermore, Scalzo's other explanation for not presenting mitigating evidence is similarly unreasonable. Scalzo explained that he did not present evidence of Dixon's family history because "it was from our experience that juries weren't buying that. In the situation — I didn't want to upset them any more than they already were about the crime." Counsel's explanation that he viewed the report as not helpful is not a strategic decision, but rather "an abdication of advocacy." Austin v. Bell, 126 F.3d 843, 849 (6th Cir. 1997) (finding counsel's failure to present mitigating witnesses "because he did not think it would do any good," even though several friends, relatives, experts and a minister were available and willing to testify, "an abdication of advocacy" and not a strategy). When a defendant has been found guilty of death penalty charges, he is "virtually guaranteed a sentence of death unless he [can] produce sufficient mitigation evidence at the penalty phase to generate reasonable doubt in the mind of at least one juror." Frazier v. Huffman, 343 F.3d 780, 793 (6th Cir. 2003).
B. Prejudice
A finding of deficient performance alone is insufficient for Dixon to prevail on an ineffective assistance of counsel claim. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 691, 104 S.Ct. 2052. He must also demonstrate prejudice, that is, a reasonable probability that the newly available mitigation evidence would have led to a different out-come. Wiggins, 539 U.S. at 537, 123 S.Ct. 2527. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Thus, if there is a reasonable probability that a single member of the jury would have found that the aggravating circumstances of the crime did not outweigh the mitigating circumstances, Dixon is entitled to a new penalty-phase trial. See State v. Robb, 88 Ohio St.3d 59, 723 N.E.2d 1019, 1044 (2000) (only a unanimous jury can impose death). Dixon has met this burden.
To determine prejudice we must "reweigh the mitigation evidence against the evidence of aggravation. . . . including evidence presented in habeas proceedings." Williams v. Anderson, 460 F.3d 789, 804 (6th Cir. 2006). "Prejudice is established where, taken as a whole, the available mitigating evidence might well have influenced the sentencer's appraisal of the petitioner's moral culpability." Jells, 538 F.3d at 498 (citation and internal quotations omitted).
The jury found Dixon guilty of the following aggravating circumstances presented at sentencing: (1) that he was the principal offender and committed the murder during a robbery and kidnapping; and (2) that he had committed the murder with prior calculation and design. Dixon, 805 N.E.2d at 1058. The evidence submitted at the penalty phase in mitigation was Dixon's age at the time of the offense (twenty years old) and the testimony of the Chief of the Bureau of Sentence Computation, who testified to the time of actual incarceration if the jury recommended a life sentence. The jury did not hear any evidence related to Dixon's background.
In support of his ineffective assistance claim, Dixon submitted Ericson's report along with affidavits from James Eisenberg (a forensic and clinical psychologist), Paul Dixon, Jr. (Dixon's brother), Anna Marie Dixon (his mother), Nancy Wolfe (his former foster mother), David Lewis (his high-school wrestling coach), and testimony of several individuals from the federal court evidentiary hearing. Ericson's mitigation report, more than fifty pages in length, was the result of a comprehensive review of a multitude of records, including, school, employment, hospital, psychological, and court records, as well as interviews with Dixon's mother, brother, former foster parents, former probation officer, a deacon and Dixon's church, and the mother of Dixon's girlfriend.
The report revealed the following details about Dixon. His family life was dysfunctional and abusive, and he had no positive role models, outside of approximately eighteen months living with foster parents. There was a family history of alcoholism. Dixon's father, uncle, paternal grandfather, and both maternal grandparents were alcoholics, and his mother had a "drinking problem." Dixon's father was arrested between seven and ten times for driving under the influence of alcohol and was ordered by a court to attend an alcohol treatment program.
Dixon's father physically abused him. Lucas County Children Services records revealed a history of abuse of both Dixon and his brother by both parents, but that Dixon's father was "particularly abusive when drinking especially to [Dixon]." Indeed, Dixon's mother filed, but later dropped, several domestic violence charges against Dixon's father. His father's violence was not limited to Dixon, however. Dixon's foster mother described how employees at the local court feared Dixon's father because he had once made a death threat to a court employee. One evening, Dixon's father shot six rounds of his shotgun from inside the home because he was angry at Dixon's mother.
The accounts of abuse Dixon endured from his father are particularly troubling. The father hit Dixon with a baseball bat, "kicked" him, "smacked" him, and "lost control" with Dixon. In one instance, Dixon did not do what his father asked, causing his father to "put his steel toed boots on" and kick Dixon "like a man;" as a result, one of Dixon's ribs is deformed. In another incident, Dixon's father hit him in the face so hard it left fingerprints. The police were called, but his mother explained that "luckily" Dixon was asleep, with his face down where he had been hit. The police left without any further investigation or arrest. Dixon himself described his father as "very aggressive" and stated that his father beat him a number of times; Dixon's brother described their father as "explosive."
Ericson further reported that Dixon himself suffered from alcohol abuse, poly-substance abuse, anxiety and depression. He began taking drugs when he was thirteen years old, when "behavioral and family issues were most significant." He attended a treatment and rehabilitation center, and "[attention was given to his lack of understanding of the negative consequences of his drug involvement and the lack of a male role model." Ericson's report summarized medical records indicating that individual counseling was recommended due to the high level of dysfunction within the family, but that the family could not be motivated to follow through with these suggestions.
Additionally, Dixon's brother, Paul Dixon, Jr., a Marine based in North Carolina, was available to testify on Dixon's behalf. Paul explained how he spent little time at home during his youth, and how an environment away from his home allowed him to "have abilities and qualities that are basic to most people, but not common to my immediate family." He described his family as "extremely tense," "often disruptive and perhaps dysfunctional." He attested that Dixon did not have the benefit of an extended removal from the family as he did, and how Dixon was "negatively affected because of it."
Paul's statements are supported by Dixon's former foster parents, Nancy and Dale Wolfe — who had Dixon in their care for about one to one and one half years. They "observed a major backslide [in Dixon's behavior]" and how he "became very defiant" and "belligerent" when the court decided to release him back to his parents. Nancy Wolfe explained how Dixon "modeled his behavior after his father." Dixon told Dale Wolfe that he was fearful of his father and did not want to go home.
There is also evidence of incest and sexual abuse within the family. Dixon's sister was repeatedly molested by her maternal grandfather as a child. Records from Lucas County Children Services indicate that sexual contact and possible intercourse occurred between both brothers and their sister, as well as their father and their sister. Both parents resisted counseling and characterized their sons' behavior as "normal curiosity."
A case worker with the Lucas County Court of Common Pleas, Juvenile Division, did a case assessment on the Dixons after several sessions with the family. He described sexual encounters between the siblings and felt they learned such behavior from their father. When asked about the sexual inappropriateness, Dixon's father threatened the case worker and told him he was "asking for serious trouble." The case worker explained how the Dixon family was given the worst score regarding "family system pathology" from "day one," never improved, and was one of the worst families with which he had worked.
The Warden argues that details of Dixon's childhood would have had little or no effect on his sentence. The evidence belies such a conclusion. The evidence shows Dixon's family history was filled with chronic alcoholism, domestic violence, possible incest, and negative role models. As Dr. Eisenberg explained, this information would have provided the jury with "insight and understanding into the development of Dixon's personality and pathology," and "an understanding of the family dynamics that lead to Mr. Dixon's violent behavior."
The circumstances of the crime are heinous, there is no doubt. But at no point during the trial did the jury hear any details of Dixon's dysfunctional and abusive upbringing. It is arguable whether any actually mitigating evidence was presented. The introduction of Dixon's birth certificate showed the jury that he was above the age of eighteen when he committed the offense. The testimony of the Bureau of Sentence Computation employee was even less helpful, as the Ohio Supreme Court explained that "sentence computations [are] entitled to no weight in mitigation." Dixon, 805 N.E.2d at 1062 (citing State v. White, 85 Ohio St.3d 433, 709 N.E.2d 140, 155-56 (1999)). The large discrepancy between the nominal evidence given to the jury and the available evidence of Dixon's dysfunctional family life demonstrates a reasonable probability that at least one member would not have returned a sentence of death. See Rompilla v. Beard, 545 U.S. 374, 393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (finding prejudice where the evidence not presented at sentencing "adds up to a mitigation case that bears no relation to the few naked pleas for mercy actually put before the jury").
The evidence of Dixon's family history would have presented the jury with a different calculation to make at the penalty phase. As we have explained before,
"I and the public know [w]hat all school-children learn," it has been said, "[t]hose to whom evil is done [d]o evil in return." W.H. Auden, "September 1, 1939." While these words may not capture a satisfactory theory of morality, they assuredly suggest a plausible theory for sparing a life at a mitigation hearing[.]
Johnson v. Bagley, 544 F.3d 592, 606 (6th Cir. 2008) (finding prejudice under
Strickland because the new evidence differed "from that heard by the jury not only in degree but also in kind");
see also Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ("[E]vidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background . . . may be less culpable than defendants who have no such excuse.").
In Williams v. Anderson, we found prejudice when similar facts were not presented as mitigating evidence, namely, the defendant's alcoholic and abusive mother, lack of father figure, primary male role model's career as a criminal, and a violence-condoning environment. 460 F.3d 789, 804-05 (6th Cir. 2006); see also Morales v. Mitchell, 507 F.3d 916, 951 (6th Cir. 2007) (Suhrheinrich, J., dissenting) (noting we have "found prejudice when the jury was deprived of non-cumulative mitigating evidence such as severe physical, psychological, or sexual abuse, a violent upbringing, or abject poverty"). Additionally, we have found prejudice where the jury heard little to no evidence in mitigation when compared to what evidence could have been presented on the defendant's behalf. See Hamblin v. Mitchell, 354 F.3d 482, 490, 493 (6th Cir. 2003) (finding prejudice where counsel did not present the jury with any mitigating evidence and evidence of a childhood where "abuse, neglect, violence and hunger were common" existed); Frazier, 343 F.3d 780, 797 (6th Cir. 2003) (no evidence presented at the penalty phase except the defendant's one-sentence plea for mercy and defense counsel could have presented evidence of defendant's brain injury).
Dixon's case is no different from those where have found prejudice in both respects. The jury heard no evidence during the guilt phase of the trial that could be considered mitigating. And the evidence presented at the penalty phase did not address any actual mitigating factors. Furthermore, the evidence of Dixon's extremely dysfunctional family never heard by the jury is similar to evidence in cases where we have found prejudice. Had Dixon's counsel presented to the jury evidence of the abusive and tragic upbringing Dixon experienced, there is a reasonable probability that at least one juror would have voted not to put him to death. Indeed, given the circumstances of the offense, the submission of such evidence is precisely what was called for during the penalty phase. The failure by Dixon's counsel to present any of this evidence was constitutionally deficient by any measure.
Accordingly, while I join the majority opinion, I would also reverse the district court's denial of Dixon's petition for a writ of habeas corpus on his ineffective assistance of counsel claim.
SILER, Circuit Judge, dissenting.
I respectfully dissent from the majority opinion finding that the Ohio Supreme Court unreasonably applied clearly established federal law in deciding this case based on the evidence presented in the state court under 28 U.S.C. § 2254(b). Whether this court would rule otherwise is not the issue. Instead, we must look at State v. Dixon, 101 Ohio St.3d 328, 805 N.E.2d 1042 (2004), to see if it was contrary to 28 U.S.C. § 2254(b). As the majority indicates, the Ohio Supreme Court found that the second statement by Dixon to the officers on November 9, 1993, was admissible under the authority of Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).
Although Dixon has argued that the Ohio Supreme Court should have followed Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), I agree with the majority when it indicates that the Seibert decision was not binding upon the Ohio Supreme Court at the time it decided State v. Dixon. The Ohio Supreme Court rendered its opinion in Dixon on April 14, 2004, and denied reconsideration on June 9, 2004. Seibert was not decided by the United States Supreme Court until June 28, 2004. Nevertheless, we can review what Seibert said about Elstad.
The facts in this case resemble the facts in Elstad and Seibert, but are easily distinguished. In Elstad, the accused made an initial inculpatory statement without Miranda warnings at the time of his arrest at his home. His subsequent confession at the sheriffs office one hour later after being advised of his Miranda rights was admissible. In Seibert, the accused was questioned first for 30 to 40 minutes without Miranda warnings. After admitting her guilt, Seibert was given a 20-minute break, after which the officers advised her of her Miranda rights, and she then admitted her guilt again. However, as stated above, the Ohio Supreme Court did not have the Seibert decision as evidence of clearly established federal law at the time of its decision in Dixon.
In our case, the officers at the time of the first interrogation on November 9 deliberately decided not to use the Miranda warnings, because they thought Dixon would invoke his right to silence. Later, at the second interrogation on November 9, circumstances had changed significantly. First, Dixon was initially arrested for forgery, not murder. At the time of the first interrogation, the officers knew of the disappearance of Hammer, the victim, but had not found the buried body. The first interview lasted approximately 45 minutes, and the police focused their questions on Hammer's disappearance. Dixon denied knowledge of Hammer's disappearance during that interrogation, but admitted the forgery of Hammer's automobile title. Dixon, 805 N.E.2d at 1049. Also significant is that between the time of the first interview on November 9, which concluded at 3:30 p.m., and the second interview, which began at 7:30 p.m., the police found Hammer's body. At the second interview, before being questioned, "Dixon volunteered that he had heard that police had found the body and asked whether Hoffner [co-defendant] was in custody." Id. Dixon also said that he had talked to his attorney and wanted to tell the police what happened. The majority says that the trial judge found otherwise, but the Ohio Supreme Court found that he told this to the detectives questioning him. Id. at 1050. After being advised of his Miranda rights twice and signing a waiver-of-rights form, Dixon implicated himself in Hammer's death. Id.
The Ohio Supreme Court correctly followed federal law. In Elstad, the Supreme Court emphasized the coercive effect of the initial interview without Miranda warnings. Thus, it said:
There is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect's will and the uncertain consequences of disclosure of a "guilty secret" freely given in response to an unwarned but noncoercive question, as in this case.
Elstad, 470 U.S. at 312, 105 S.Ct. 1285. It went on to hold "that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion."
Id. at 314,
105 S.Ct. 1285. Obviously, the first statement of November 9 was not coercive. One might feel that the deliberate act by the officers in failing to advise Dixon of his
Miranda rights on the first interview was an improper tactic. However, Justice O'Connor, the author of
Elstad, later declared in her dissent in
Seibert that the state of mind of the police is irrelevant to the voluntariness of the suspect to abandon his rights.
Seibert, 542 U.S. at 625, 124 S.Ct. 2601 (O'Connor, dissenting) (citing
Moran v. Burbine, 475 U.S. 412, 423, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)).
It is my belief that these facts, including (1) the passage of time between the two interviews on November 9; (2) Dixon told the officers he had talked to his attorney and wanted to make a statement; and (3) circumstances had changed between the two interviews, that is, that the officers had found the body and the likely charge would be homicide not forgery, are sufficient to dissipate the taint of the initial interview of November 9. The Ohio Supreme Court followed Elstad in making this determination, and I would not find that it unreasonably applied Miranda or Elstad.
Although the majority also discusses the alleged erroneous burden of proof on Dixon to show that his confession was coerced, that issue was not certified to this court and has not been raised by Dixon.
Moreover, even if there was a Miranda violation, the admission of the "confession at trial is subject to harmless error analysis." Arizona v. Fulminante, 499 U.S. 279, 303, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), an error is harmless unless it "had [a] substantial and injurious effect or influence in determining the jury's verdict." Id. at 637, 113 S.Ct. 1710. Here, several witnesses established that Dixon stole Hammer's car about the time of his disappearance. Even more damaging, however, was the testimony of Kirsten Wilkerson, Dixon's girlfriend, who described in great detail the efforts of both Dixon and Hoffner, as well as her own participation, to kill Hammer and transport him to the burial site. Thus, the admission of Dixon's statement to the police did not have a substantial and injurious effect upon the jury's verdict.
I also respectfully disagree with the concurring opinion by my distinguished colleague in which he indicates that he not only concurs with the majority opinion on the Miranda issue, but that he would also grant the writ on the basis that Dixon received ineffective assistance of counsel during the mitigation phase of the trial.
Although the parties and the district court all agreed that AEDPA sets up the standard of review on this issue, and although no error was claimed either in the district court or in this court for failure to consider this under a de novo standard, the concurrence may be correct that AEDPA does not apply because the district court held an evidentiary hearing involving the testimony of several witnesses. Without deciding which standard applies, however, I would affirm the district court under either the AEDPA standard or a de novo review for the reasons set out herein. Also, like the district court, I would find that under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Dixon has failed to show prejudice by the alleged deficient performance on the part of his counsel during the penalty phase of the trial. In determining prejudice, "a petitioner `need not show that counsel's deficient conduct more likely than not altered the outcome of the case,' but only `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Williams v. Anderson, 460 F.3d 789, 801-02 (6th Cir. 2006) (quoting Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052). Moreover, "the prejudice question is `whether there is a reasonable probability that, absent the errors, the sentencer — including an appellate court, to the extent it independently reweighs the evidence — would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.'" Smith v. Mitchell 348 F.3d 177, 199 (6th Cir. 2003) (quoting Strickland, 466 U.S. at 695, 104 S.Ct. 2052). During the mitigation phase, trial counsel only presented the testimony of Sally Ann Walters concerning the significance of a sentence of life without parole for 20 years or life without parole for 30 years and a certified copy of Dixon's birth certificate to show his age. Nevertheless, counsel conducted a significant investigation through Gary Ericson, a licensed private investigator and mitigation specialist, and a psychologist, Dr. Christopher Layne.
Ericson prepared a 51-page mitigation report. He reviewed records detailing Dixon's birth, juvenile, educational, employment and psychological histories. He offered information about Dixon's family environment, including physical violence and emotional abuse from his father. He also investigated possible sexual abuse, which actually was inflicted by Dixon against a four-year-old child. Ericson found that Dixon had been committed to a juvenile facility and earned a GED there. He also had a positive adjustment in his placement with a foster family. Ericson also found that Dixon had raped his younger sister and started taking drugs at the age of thirteen. Ericson presented his report to trial counsel, who found that Dixon did not want it to be presented to the jury. Counsel said Dixon was upset about it and would go "ballistic in the courtroom if all this information was presented at a sentencing hearing." The psychologist, Dr. Layne, had concluded before the trial that Dixon's intelligence was low-normal. He also found that Dixon had a criminal personality, called an antisocial personality disorder. He told defense counsel that he would not be helpful if called as a witness, in view of his findings. He knew that Dixon's medical records had indicated possible Reyes Syndrome as a child, but he did not find any symptoms of Reyes Syndrome. He also reasoned that Dixon did not exhibit any of the primary symptoms of brain damage. In view of this information, Dixon's counsel strategically decided not to introduce the testimony of either Ericson or Layne.
Trial counsel have an obligation to conduct a full investigation of their client's background in death penalty cases. Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The district court found that the failure to use Dr. Layne as a witness was not a deficient performance, because his testimony would not have helped Dixon. On the failure to call Ericson as a witness, the court found that there was no prejudice, because evidence of a poor childhood likely would not have been sufficient to change a juror's mind. The district court found that, had the defense tried to show that Dixon was a "good guy," his previous conduct including the conviction for gross sexual imposition on a four-year-old child, "would surely have been introduced into evidence."
Although the concurrence criticizes the fact that counsel did not speak with any of the witnesses who could have testified for Dixon, the mitigation report from Ericson was a very thorough product. The law does not require that each counsel discuss with all potential witnesses what his or her testimony is supposed to be, so long as someone explores it and counsel concludes that for strategic reasons the evidence should not be introduced. Even the concurring opinion agrees that Ericson's mitigation report was a comprehensive review of Dixon's background. The aggravating facts of the homicide and the burial of the victim while he was still alive was such a heinous crime that it would have been difficult to find anything to mitigate the crime unless the offender was insane or mentally retarded, which was not the case here.
This case is a companion to Hoffner v. Bradshaw, 622 F.3d 487 (6th Cir. 2010), which recites additional facts from the trial. Because the majority and concurrence do not discuss the other issues under the certificate of appealability, I also do not. However, I find no merit in any of the other issues raised and would affirm the denial of the writ of habeas corpus by the district court.