David Hamblin v. BETTY MITCHELL, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0457P (6th Cir.)
File Name: 03a0457p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DAVID HAMBLIN,
Petitioner-Appellant,
v.
BETTY MITCHELL, Warden,
Respondent-Appellee.
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No. 00-3663
Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 95-02046—Peter C. Economus, District Judge.
Argued: March 20, 2002
Decided and Filed: December 29, 2003
Before: MERRITT, BATCHELDER, and GILMAN,
Circuit Judges.
_________________
COUNSEL
ARGUED: Linda E. Prucha, OHIO PUBLIC DEFENDER’S
OFFICE, Columbus, Ohio, for Appellant. Matthew C.
Hellman, ATTORNEY GENERAL’S OFFICE OF OHIO,
CAPITAL CRIMES SECTION, Columbus, Ohio, for
Appellee. ON BRIEF: Linda E. Prucha, OHIO PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, George C. Pappas,
2 Hamblin v. Mitchell No. 00-3663
Akron, Ohio, for Appellant. Matthew C. Hellman,
ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL
CRIMES SECTION, Columbus, Ohio, Michael L. Collyer,
OFFICE OF THE ATTORNEY GENERAL OF OHIO,
Cleveland, Ohio, for Appellee.
MERRITT, J., delivered the opinion of the court, in which
GILMAN, J., joined. BATCHELDER, J. (pp. 23-24),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
MERRITT, Circuit Judge. In this death penalty case from
Ohio tried in the state criminal court in Cleveland, the
primary issue is whether counsel for the defendant provided
an adequate defense under the Sixth Amendment as
incorporated in the Due Process Clause. Fred Jurek was
counsel for the defendant, Hamblin, the petitioner in this
habeas corpus case. Jurek had no experience trying capital
cases, and he was later disbarred from the practice of law in
Ohio. After the defendant was found guilty of murder by a
jury at the guilt phase of the case, Jurek did not prepare for
the penalty phase of the bifurcated trial. He did not try to find
out any family history or any facts concerning defendant’s
psychological background and mental illness, nor did counsel
seek any advice or expert consultation for the penalty phase
of the case. Despite a large body of mitigating evidence,
counsel did nothing to discover what was available or
introduce it in evidence. We will first set out the standards
governing the assistance of defense counsel in capital cases at

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No. 00-3663 Hamblin v. Mitchell 3
1The petition before us was filed before the effective date of AEDPA
(April 24, 1996), see Lindh v. Murphy, 521 U.S. 320 (1997), and is
governed by preexisting standards.
the sentencing phase of the case and then apply those
standards to the facts of this case.1
I.
Ineffective assistance of counsel in capital cases has been
a persistent problem in the United States. See James S.
Liebman, The Overproduction of Death, 100 COLUM. L.REV.
2030, 2102-10 (2000). It was only 70 years ago in the
notorious but seminal Scottsboro Boys case, Powell v.
Alabama, 287 U.S. 45 (1932), that the Supreme Court finally
decided that the Due Process Clause of the Fourteenth
Amendment requires the appointment of competent counsel
capable of “the giving of effective aid in the preparation and
trial” because a defendant facing capital punishment “requires
the guiding hand of counsel at every step in the proceeding
against him.” 287 U.S. at 69-71.
Not until 50 years later in Strickland v. Washington, 466
U.S. 668 (1984), did the court begin to define specifically
what the “effective assistance of counsel” means. There the
Court said that counsel in such cases must act with
“reasonableness under prevailing professional norms” as
“guided” by “American Bar Association standards and the
like.” This standard includes counsel’s “duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.” But the
Court went on to say that under this standard “judicial
scrutiny of counsel’s performance must be highly
deferential,” and that the defendant must overcome “a strong
presumption” that counsel’s action is reasonable because any
“detailed guidelines . . . would encourage the proliferation of
ineffectiveness challenges.”
4 Hamblin v. Mitchell No. 00-3663
In the most recent case on ineffective assistance, Wiggins
v. Smith, 123 S. Ct. 2527, decided June 26, 2003, the Court
held by a 7-2 vote that counsel’s investigation and
presentation “fell short of the standards for capital defense
work articulated by the American Bar Association . . .
standards to which we have long referred as ‘guides to
determining what is reasonable.’” 123 S. Ct. at 2536-37. In
its discussion of the 1989 ABA Guidelines for counsel in
capital cases, the Court held that the Guidelines set the
applicable standards of performance for counsel:
[I]nvestigations into mitigating evidence “should
comprise efforts to discover all reasonably available
mitigating evidence and evidence to rebut any
aggravating evidence that may be introduced by the
prosecutor.” ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases
11.4.1(C), p. 93 (1989).... Despite these well-defined
norms, however, counsel abandoned their investigation
of petitioner’s background after having acquired only
rudimentary knowledge of his history from a narrow set
of sources.
Id. at 2537 (emphasis in original). The Court then also
adopted ABA guideline 11.8.6, which it described as stating
that among the topics counsel should consider presenting
are medical history, educational history, employment and
training history, family and social history, prior adult and
juvenile correctional experience, and religious and
cultural influences.
Id. (Emphasis in original.) Thus, the Wiggins case now
stands for the proposition that the 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. This principle adds clarity, detail
and content to the more generalized and indefinite 20-year-
old language of Strickland quoted above.

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No. 00-3663 Hamblin v. Mitchell 5
Prior to the Wiggins case, our Court in a series of cases had
dealt with the failure of counsel to investigate fully and
present mitigating evidence at the penalty phase of the case.
Our analysis of counsel’s obligations matches the standards
of the 1989 Guidelines quoted by the Supreme Court in
Wiggins. In Glenn v. Tate, 71 F.3d 1204, 1206-08 (6th Cir.
1995), Judge Nelson for himself and Judge Guy (Judge Siler
dissenting) set aside the death verdict on grounds of
ineffective assistance of counsel at the penalty phase. The
Court held that counsel must perform a full and complete
investigation of mitigating evidence including the defendant’s
“history, background and organic brain damage.” 71 F.3d at
1207. The Court also held that this investigation should be
conducted before the guilt phase of the case. It said that the
“time consuming task of assembling mitigating witnesses
[should not wait] until after the jury’s verdict ....” Id.
(quoting Blanco v. Singletary, 943 F.2d 1477, 1501-02 (11th
Cir. 1991)). The Court faulted the lawyers because they
“made no systematic effort to acquaint themselves with their
client’s social history” — for example, they “never spoke to
any of his numerous brothers and sisters,” and “never
examined school records” or “medical records” or “records of
mental health counseling.” Id. at 1208. In a similar case,
Austin v. Bell, 126 F.3d 843, 847-48 (6th Cir. 1997), Judge
Suhrheinrich, for a panel including Judges Martin and Merritt,
relied on Judge Nelson’s opinion in Glenn v. Tate to explain
that prevailing standards require a full and complete
investigation of mitigating evidence. Then in Coleman v.
Mitchell, 268 F.3d 417, 449-52 (6th Cir. 2001), Judge Clay
for himself and Judge Cole (Judge Batchelder dissenting),
reviewed the holdings of Glenn and Austin and reached a
similar conclusion. Like the Supreme Court in Wiggins,
Judge Clay explicitly relied on the 1989 ABA Guidelines.
The 1989 Guidelines adopted as “prevailing norms” in
Wiggins reinforce and support our court’s previous rulings in
Glenn, Austin and Coleman applying similar norms to cases
tried in the 1980's. Although the instant case was tried before
the 1989 ABA edition of the standards was published, the
6 Hamblin v. Mitchell No. 00-3663
2The 2003 A BA G uidelines at section 10.7 contain ten pages of
discussion about counsel’s “obligation to conduct thorough and
independent investigations relating to the issues of both guilt and
penalty.” The description of counsel’s obligation to investigate mitigating
evidence for the sentencing phase of the case is as follows (omitting
quotation marks and the lengthy footnotes attached to the test):
Counsel’s duty to investigate and present mitigating evidence is
now well established. The duty to investigate exists regardless
of the expressed desires of a client. Nor may co unsel sit idly b y,
thinking that investigation would be futile. Counsel cannot
responsibly advise a client about the merits of different courses
of action, the client cannot make informed decisions, and
counsel cannot be sure of the client’s competency to make such
decisions unless counsel has first conducted a thorough
investigation with respect to both phases of the case.
Because the sentences in a capital case must consider in
standards merely represent a codification of longstanding,
common-sense principles of representation understood by
diligent, competent counsel in death penalty cases. The ABA
standards are not aspirational in the sense that they represent
norms newly discovered after Strickland. They are the same
type of longstanding norms referred to in Strickland in 1984
as “prevailing professional norms” as “guided” by “American
Bar Association standards and the like.” We see no reason to
apply to counsel’s performance here standards different from
those adopted by the Supreme Court in Wiggins and
consistently followed by our court in the past. The Court in
Wiggins clearly holds at 123 S. Ct. at 2535, that it is not
making “new law” on the ineffective assistance of counsel
either in Wiggins or in the earlier case on which it relied for
its standards, Williams v. Taylor, 529 U.S. 362 (2000).
New ABA Guidelines adopted in 2003 simply explain in
greater detail than the 1989 Guidelines the obligations of
counsel to investigate mitigating evidence. The 2003 ABA
Guidelines do not depart in principle or concept from
Strickland, Wiggins or our court’s previous cases concerning
counsel’s obligation to investigate mitigation circumstances.2

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No. 00-3663 Hamblin v. Mitchell 7
mitigation, anything in the life of the defendant which might
militate against the app ropriateness of the d eath penalty for the
defendant, penalty phase preparation requires extensive and
genearlly unparalleled investigation into personal and fam ily
history. In the case of the client, this be gins with the moment of
conception [i.e., undertaking representation of the capital
defendant]. Counsel needs to explore:
(1) Medical history, (including hospitalizations, mental and
physical illness or injury, alcohol and drug use, pre-natal
and birth trauma, malnutrition, developmental delays, and
neurological damage).
(2) Fam ily and social history, (including physical, sexual or
emotional abuse; family history of mental illness, cognitive
impairments, substance abuse, or domestic violence;
poverty, familial instability, neighborhood environment and
peer influence); other traumatic events such as exposure to
criminal violence, the loss of a loved one or a natural
disaster; experiences of racism or other social or ethnic bias;
cultural or religious influences; failures of government or
social intervention (e.g., failure to intervene or provide
necessary services, placement in poo r quality foster care or
juvenile detention facilities);
(3) Educational history (including achievement, performance,
behavior, and activities), special ed ucational needs
(including cognitive limitations and learning d isabilities)
and op portunity or lack thereo f, and activities;
(4) Military service, (including length and type of service,
conduct, special training, combat exposure, health and
mental health services);
(5) Employment and training history (including skills and
performance, and barriers to employability);
(6) Prior juvenile and adult correctional experience (including
conduct while under supervision, in institutions of education
or training, and regarding clinical services);
The mitigation investigation should begin as quickly as
possible, beca use it may affect the investigation of first phase
defense (e.g., by suggesting additional areas for questioning
8 Hamblin v. Mitchell No. 00-3663
police officers or other witnesses), decisions about the need for
expert evaluation (including competency, mental retardation, or
insanity), motion practice, and plea nego tiations.
....
It is necessary to locate and interview the client’s fam ily
members (who may suffer from some of the sa me impairm ents
as the client), and virtually everyone else who knew the client
and his family, including neighbors, teachers, clergy, case
workers, doctors, co rrectional, probation or parole officers, and
others. Records — from courts, government agencies, the
military, employers, etc. — can conta in a wealth of mitigating
evidence, documenting or providing clues to childhood abuse,
retardation, brain damage, and/or mental illness, and
corroborating witnesses’ recollections. Records should be
requested conc erning not on ly the client, but also his parents,
grandp arents, siblings, and child ren. A multi-generational
investigation frequently discloses significant patterns of family
dysfunction and may help establish or strengthen a diagnosis or
underscore the hereditary nature of a particular impairment. The
collection of corrob orating information from multiple sourc es —
a time-consuming task — is important wherever possible to
ensure the reliability and thus the persuasiveness of the evidence.
ABA Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases ¶ 10.7 (2003) at pp. 80-83.
In sum, we recognize that we must measure counsel’s
performance in this case against the prevailing standards at
the time of Hamblin’s trial. We cite the 1989 and 2003 ABA
Guidelines simply because they are the clearest exposition of
counsel’s duties at the penalty phase of a capital case, duties
that were recognized by this court as applicable to the 1982
trial of the defendant in Glenn v. Tate, 71 F.3d 1204, 1206-08
(6th Cir. 1995). Since that trial took place even before the
trial in the present case, the same standards regarding
counsel’s duty to investigate mitigating evidence, as
articulated in the ABA Guidelines, are relevant here.

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No. 00-3663 Hamblin v. Mitchell 9
II.
A.
This case begins in 1983 in Cleveland, Ohio, when
Metropolitan Park Ranger John English was investigating
alleged homosexual activity in a local park. He was shot in
the leg by an unknown assailant. His injuries were not life
threatening. Just prior to the shooting, Ranger English and
other witnesses observed petitioner David Hamblin sitting in
his car at the park. Twenty minutes after the shooting, Lillian
Merrick was found unconscious in her car in the parking lot
of a store near the park, suffering from a blow to the head
inflicted by a blunt object. She also sustained a wound to her
hand, described as a “defensive” wound. She had been
robbed of her purse and groceries. She died three days later
from her injuries without regaining consciousness.
Investigation clearly established that defendant Hamblin
wounded the park ranger and killed Lillian Merrick.
A jury in the Common Pleas Court of Cuyahoga County
convicted Hamblin of aggravated murder, aggravated robbery,
attempted murder and having a weapon under disability and
sentenced him to death. The conviction was affirmed by the
Cuyahoga County Court of Appeals and the Ohio Supreme
Court. State v. Hamblin, No. 49975, 1986 WL 11132 (Ohio
App. Sept. 18, 1986), aff’d, 37 Ohio St. 3d 153, 524 N.E.2d
476, cert. denied, 488 U.S. 975 (1988).
Hamblin filed a petition pursuant to 28 U.S.C. § 2254 in
November 1995 after exhausting his state post-conviction
proceedings. State v. Hamblin, No. 66556, 1994 WL 706137
(Ohio App. Dec. 15, 1994), dismissed, appeal not allowed, 72
Ohio St. 3d 1528, 649 N.E.2d 837 (May 31, 1995). Hamblin
filed his petition for habeas review prior to the enactment of
the Antiterrorism and Effective Death Penalty Act, which
permits reviewing federal courts greater latitude in examining
the proceedings than is permissible under AEDPA-governed
cases. See Williams v. Taylor, 529 U.S. 362 (2000) (applying
10 Hamblin v. Mitchell No. 00-3663
3Only Jurek filed an affidavit for the state post-conviction
proceeding. Jurek was disbarred in 1989 and died in 199 9. There is no
information in the record as to why Hamblin’s other attorney, Arthur
Lamb ros, did no t submit an affidavit during the post-conviction
proceedings. Because Jurek was the only defense lawyer to speak during
the stricter AEDPA standard to petitions filed after April 24,
1996); Lindh v. Murphy, 521 U.S. 320 (1997).
The district court denied Hamblin’s request for a writ of
habeas corpus, for an evidentiary hearing and for discovery.
On the basis of the papers before the court, it held that
counsel was not ineffective and labeled the lack of
investigation as “strategic,” finding that counsel relied on the
now defunct “residual doubt” theory during the penalty phase.
The residual doubt theory seeks to convince the jury to
impose a less severe sentence by reinforcing any lingering
doubt the jury may have about the guilt of the defendant.
“Residual doubt” was rejected by the Ohio Supreme Court as
a mitigation strategy after Hamblin’s trial. State v. McGuire,
80 Ohio St. 3d 390, 686 N.E.2d 1112, 1123 (1997). McGuire
held that because the jury must find guilt at the culpability
phase beyond a reasonable doubt, a “residual doubt” theory
makes no sense. If the jury has “residual doubt,” it must not
convict. Therefore, residual doubt can no longer be used as
a mitigating factor in Ohio at sentencing.
B.
The record reveals that defense counsel’s representation of
Hamblin at the penalty stage of the case fell far short of
prevailing standards of effective assistance of counsel as
outlined in Wiggins, our previous cases and the 1989 and
2003 ABA Guidelines.
The Cuyahoga County Court of Common Pleas appointed
Fred Jurek and Arthur Lambros to serve as Hamblin’s court-
appointed attorneys. Neither lawyer had previously tried a
capital case. Jurek3 admitted in his affidavit that he did

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No. 00-3663 Hamblin v. Mitchell 11
the penalty phase of the trial, and because we have no information as to
what Lambros’ role wa s, if any, it is reasonable to conclude that Fred
Jurek had sole responsibility for the penalty phase, including preparation.
essentially nothing by way of preparation for the penalty
phase of this trial. Aff. of Fred Jurek, at ¶ 8, State v.
Hamblin, CR-186558, Ex. B. to State Post-Conviction
Petition (Ohio App. July 31, 1989). Jurek stated in his
affidavit that he did not treat Hamblin’s case any differently
than other criminal cases he had handled and he was
“unaware” of the special preparation that was needed for the
penalty phase. Id. at ¶ 12. He stated he did not prepare for
the penalty phase until after the guilty verdict was returned —
leaving a period of only six days (from Wednesday, April 11,
until Tuesday, April 17) to prepare for the penalty phase. Id.
Jurek’s affidavit states that he did not seek any advice or
expert consultation for the penalty phase. Counsel’s
explanation for doing nothing in preparation for the
sentencing phase was his belief that the case would “plead
out” and not go to trial. Id. at ¶ 8. He acknowledged a lack
of strategy. He stated that he “did not present the jury with
any mitigating evidence, therefore the closing statement
consisted of a plea for mercy.” Id. at ¶ 18.
If counsel had investigated his case, he would have found
a large body of mitigating evidence. The evidence of
Hamblin’s unstable and deprived childhood presented at the
post-conviction proceedings is extensive. Hamblin grew up
in extreme poverty and neglect, surrounded by family
violence and instability, had a poor education and likely
suffers from mental disability or disorder. He grew up in
Appalachian Kentucky where his father had a still. His father
was very violent and beat Hamblin’s mother and Hamblin
regularly. Hamblin’s father was arrested on several occasions
for public intoxication, manufacture of moonshine and child
neglect. Hamblin’s mother abandoned her children on several
occasions, leaving them to fend for themselves, and at times
resorted to prostitution. Hamblin tried to provide for himself
12 Hamblin v. Mitchell No. 00-3663
and a younger sister by stealing and he first stole food as a
very young child. He was never educated. He did not attend
elementary school with regularity and did not receive any
education past the seventh grade. He started getting in trouble
with the law as a teenager, resulting in a criminal record as a
juvenile. He first left home at 13 and left permanently at 16.
Hamblin first showed signs of mental disorder when he was
a teenager — probably resulting from his poor family
situation and possibly from a severe blow to the head at about
age 8, inflicted by his father with a dog chain, and from a
severe infection his mother suffered while pregnant with him,
the result of a stabbing inflicted on her by Hamblin’s father.
Aff. of James P. Eisenberg, Ph. D., State v. Hamblin, CR-
186558, Ex. E to State Post-Conviction Petition (Ohio App.
Aug. 9, 1989). While an earlier mental evaluation did not
show signs of organic deficiency, such as retardation, further
testing since Hamblin has been in prison shows psychological
problems, but whether their origin is psychological, organic
or both is not known.
Jurek did not obtain any family or social history nor did he
contact any of Hamblin’s family members except Rhonda
Lezark, the mother of Hamblin’s daughter. Jurek Aff. at ¶¶
13-15. Twenty-two family members and friends filed
affidavits with Hamblin’s state post-conviction petition
relating the violence and deprivation of Hamblin’s childhood,
each stating that they would have been available and willing
to testify at the penalty phase but had never been asked to do
so.
Counsel also failed to gather any medical information,
including psychological information, on Hamblin. Earlier
psychiatric evaluation of Hamblin had shown him competent
to stand trial and not to be mentally retarded. Counsel
believed, incorrectly, that the issue of competency to stand
trial was the only admissible psychological evidence for
mitigation purposes. Relying solely on what he was told by
Hamblin and the prosecutor — that mental competency to

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No. 00-3663 Hamblin v. Mitchell 13
stand trial was the only relevant issue — counsel did not
evaluate Hamblin’s mental condition at the time of trial or
inquire further into his mental health. Counsel did not review
the earlier reports concerning Hamblin’s mental status, which
were prepared for a previous criminal case involving
Hamblin. An evaluation done in 1964 when Hamblin was 13
and had been arrested on juvenile charges stated that Hamblin
tends “to alienate himself from other people and appears
mistrustful and suspicious of everyone.” School records and
IQ tests, among other records, were also available but were
not collected or reviewed. Nor did counsel contact a mental
health professional to help him evaluate the existing reports
or to give him advice on using the psychological information
previously acquired on Hamblin or to inquire about further
psychological testing. Jurek Aff. at ¶ 16.
Only two witnesses were offered at the penalty phase:
Rhonda Lezark and Hamblin himself. The entire proceeding
consists of about 38 pages and could not have taken more
than 45 minutes to present. The prosecution’s closing
argument at the penalty phase consumes 10 pages out of the
38, while defense counsel’s closing argument consists of 3
pages.
Witness Rhonda Lezark was in a long-term relationship
with Hamblin and they have one daughter from that
relationship. Lezark had testified for the prosecution during
the guilt phase. In her testimony at the penalty phase she
stated that Hamblin’s relationship with their child was good.
She had nothing else positive to say during her short
testimony. She told the jury about Hamblin’s previous prison
time and explained that she did not want to testify on his
behalf. Hamblin’s counsel did not prepare her for her
testimony at the penalty phase or interview her in advance.
The only other testimony by the defense during the penalty
phase was a relatively short, rambling, almost incoherent,
unsworn statement given by Hamblin to the jury in an attempt
to explain his background. Counsel admitted he did nothing
14 Hamblin v. Mitchell No. 00-3663
to help Hamblin prepare or give this statement. Jurek Aff. at
¶ 17.
Obviously, counsel’s failure to investigate and prepare for
the sentencing phase of the case violates the ABA standards
and applicable case law discussed above, unless there is some
other justification for counsel’s performance.
C.
The district court below found two justifications for
counsel’s performance. First the court found that defense
counsel did not further investigate Hamblin’s mental
condition for the “strategic” reason that such an investigation
might not reveal any psychological problems or brain injury,
thereby preventing a mitigation theory based on those factors.
The court said mitigation evidence “could hurt him as easily
as help him if exposed to a jury,” and so “Hamblin’s attorneys
made a strategic decision not to [investigate or] present
mitigating evidence about Hamblin’s deplorable childhood
and wretched upbringing.” App., Vol. I, p. 67. Second, the
court found that counsel did not investigate or prepare
mitigation because his client told him not to present evidence
in mitigation.
The first reason for not investigating is not asserted by
defense counsel in the record before us and, even if it were,
does not make sense. Because counsel does not know what
an investigation will reveal is no reason not to conduct the
investigation. Counsel was obligated to find out the facts, not
to guess or assume or suppose some facts may be adverse.
Counsel admitted he was not sure what further investigation
or testing might reveal about Hamblin’s psychological health
or any organic brain damage. In addition, because the district
court did not hold an evidentiary hearing or allow any
discovery, many details of why counsel failed to investigate
are not known. And between the time the habeas petition was
filed in late 1995 and the issuance of the district court’s order
in early 2000, Fred Jurek, the lawyer responsible for the

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No. 00-3663 Hamblin v. Mitchell 15
penalty phase, died. This complete failure to investigate
simply cannot be condoned and constitutes a clear
constitutional violation.
As to the second justification, the district court said that
counsel cannot be ineffective when counsel is simply
following a defendant’s wishes not to investigate or prepare
for the mitigation phase of the case. There is no evidence in
the record that counsel informed Hamblin about the
importance of mitigation to the penalty phase or the
consequences of limiting the penalty phase to his unsworn
statement and the testimony of Rhonda Lezark. Since the
district court did not permit an evidentiary hearing or
discovery in this case, it is not clear what Hamblin said to
Jurek about investigating the case or what Jurek advised
Hamblin. But ABA and judicial standards do not permit the
courts to excuse counsel’s failure to investigate or prepare
because the defendant so requested, assuming that this finding
is factually accurate. The Guidelines state that “the
investigation regarding penalty should be conducted
regardless of any statement by the client that evidence bearing
upon penalty is not to be collected or presented,” because
[c]ounsel cannot responsibly advise a client about the
merits of different courses of action, the client cannot make
informed decisions, and counsel cannot be sure of the
client’s competency to make such decisions, unless counsel
has first conducted a thorough investigation ....
ABA Guidelines § 10.7 (2003) at pp. 80-81. This guideline
is supported by our decisions in Austin v. Bell, supra, 126
F.3d at 849, and Coleman v. Mitchell, supra, 268 F.3d at 447,
as well as by a number of cases from other circuits, see, e.g.,
Blanco v. Singletary, 943 F.2d 1477, 1501-03 (11th Cir.
1991) (counsel ineffective for “latching onto” client’s
assertions that he did not want to call penalty phase witnesses
and failing to conduct an investigation sufficient to allow
client to make an informed decision to waive mitigation);
United States v. Gray, 878 F.2d 702, 711 (3d Cir. 1989)
16 Hamblin v. Mitchell No. 00-3663
(“counsel can hardly be said to have made a strategic choice
against pursuing a certain line of investigation when s/he has
not yet obtained the facts on which such a decision could be
made”); Knighton v. Maggio, 740 F.2d 1344, 1350 (5th Cir.
1984) (petitioner entitled to relief if record shows that
“counsel could not make a valid strategic choice because he
had made no investigation”).
Therefore, the two “strategic” justifications for failing to
investigate mitigating factors by the court below are
insufficient to excuse counsel’s performance. Counsel’s
performance fell well below minimum standards in capital
cases.
III.
The Strickland and Wiggins cases in the Supreme Court
also require us to examine whether counsel’s deficient
performance prejudiced defendant. This is the second or
“prejudice” prong established by Strickland. 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.” Strickland, 466 U.S. at 694. Hamblin must
demonstrate that “counsel’s errors were serious enough to
deprive [him] of a proceeding the result of which was
reliable.” Glenn v. Tate, 71 F.3d 1204, 1210 (6th Cir. 1995).
Hamblin has sufficiently demonstrated that the utter failure of
his counsel effectively to present at sentencing the wealth of
mitigating evidence “undermines confidence in the outcome”
of the sentencing phase of his trial.
Under federal law, one juror may prevent the death penalty
by finding that mitigating factors outweigh aggravating
factors. As the Supreme Court recently said in Wiggins, the
“prejudice” prong is satisfied if “there is a reasonable
probability that at least one juror would have struck a
different balance.” 123 S. Ct. at 2543.

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No. 00-3663 Hamblin v. Mitchell 17
Ohio is a “weighing” state, which means that the
aggravating circumstances must outweigh the mitigating
factors in order to impose the death penalty. Hamblin has
presented substantial evidence of a childhood in which abuse,
neglect, violence and hunger were common. In light of the
quantity of mitigation evidence available, we find ourselves
unpersuaded that there is a reasonable probability that a jury
would have returned the same sentence had the evidence been
introduced. Our confidence in the outcome of Hamblin’s trial
has been undermined by counsel’s failure to include the
details of Hamblin’s background during their penalty phase
presentation. In our view, had the available evidence been
presented — about Hamblin’s mental history and abusive
childhood — at least one juror would have voted against the
death penalty. He is therefore entitled to a new trial at the
penalty phase. The sentencing phase of the trial under Ohio
law is obviously a critical stage of the criminal proceeding
which can result in the sentence of death and did so in this
case. Yet Hamblin’s counsel performed virtually no
investigation to prepare a defense. Counsel presented no
meaningful evidence by way of mitigation as a result of the
failure to investigate and prepare, not as a result of trial
strategy after thorough research. It is not just that the defense
presented on Hamblin’s behalf at the sentencing phase was
ineffective; rather, Hamblin’s counsel did not present any
meaningful mitigation evidence at the sentencing phase
because he was not prepared due to his lack of knowledge
and understanding of the sentencing phase of a capital case.
This total lack of preparation, investigation and understanding
of sentencing caused counsel’s deficient performance and
extreme prejudice to Hamblin.
IV.
Because we find that counsel’s failure to investigate
possible mitigating circumstances constitutes ineffective
assistance of counsel warranting a new penalty phase trial for
Hamblin, we pretermit any other sentencing issues raised in
the habeas petition concerning the sentencing phase of the
18 Hamblin v. Mitchell No. 00-3663
case, including whether Hamblin’s counsel was ineffective in
other aspects of the sentencing phase and whether
prosecutorial misconduct at the sentencing phase undermined
Hamblin’s constitutional right to a fundamentally fair trial.
We will now turn to the issues raised by Hamblin concerning
the guilt phase of his trial.
A. Ineffective Assistance of Counsel at
Culpability Phase
Hamblin contends that his counsel should have put on an
expert pathologist to counter the testimony of the
prosecution’s expert. The Cuyahoga County Coroner testified
that Lillian Merrick was killed by one or more blows to the
head. Hamblin claims that an independent pathologist might
have shown that death resulted from a single blow to the head
intended only to disable the victim for purposes of robbing
her, not to kill her — a less gory and disturbing scenario of
the incident than that presented by the prosecution. The
performance of counsel in this respect at the guilt phase was
poor, to say the least, because of his failure to try to retain an
independent expert, such as a pathologist, to investigate fully
the position of the prosecution that the victim received
numerous blows to the head, an inference not supported by
the evidence in the record before us. He could perhaps have
made a showing that there was only one blow to the head and
hence raised a stronger inference of lack of intent to kill. But
in the end we cannot know the answer because no expert has
yet appeared to clarify the issue. Absent such evidence, we
therefore cannot say that this failure was harmful to the
defendant and that he was prejudiced by it.
The State also called a witness from the Ohio Bureau of
Criminal Identification and Investigation to explain
electrophoresis, the technique by which the victim’s blood
was matched to the blood found on a jacket in Hamblin’s
home. Defendant claims that an expert witness could have
explained that electrophoresis is unreliable, especially when
performed on post-mortem samples, and such testimony

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No. 00-3663 Hamblin v. Mitchell 19
would have raised doubts about its value in this case. This
error was likely harmless given the physical evidence
presented at trial to demonstrate defendant’s guilt — Lillian
Merrick’s personal effects were found in the defendant’s
house and car and the gun found in the house matched that
used to shoot the park ranger. Even if defense counsel had
called expert witnesses to testify on electrophoresis, it would
not likely have changed the outcome of the culpability phase.
B. Prosecutorial Misconduct/Brady Issues
Defendant raises prosecutorial misconduct in two ways:
(1) Inappropriate comments during trial and sentencing and
(2) failure to turn over exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963).
1. Prosecutor’s Comments. To grant relief for
prosecutorial misconduct, the prosecutor’s comments must
be “so fundamentally unfair as to deny [the defendant] due
process” based on the “totality of the circumstances.”
Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974); accord
Kincade v. Sparkman, 175 F.3d 444, 445-56 (6th Cir. 1999)
(prosecutorial misconduct found where prosecutor inferred
that defendant committed other burglaries than the one for
which he was standing trial). Specifically, our court takes
into account:
the degree to which the remarks complained of have a
tendency to mislead the jury and to prejudice the
accused; whether they are isolated or extensive; whether
they were deliberately or accidentally placed before the
jury and the strength of the competent proof to establish
the guilt of the accused.
Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982) (en
banc) (citing United States v. Leon, 534 F.2d 667, 677 (6th
Cir. 1976)); see also United States v. Carroll, 26 F.3d 1380
(6th Cir. 1994).
20 Hamblin v. Mitchell No. 00-3663
The prosecutor’s repeated reference to the numerous blows
received by the victim is not backed by the evidence. The
pathologist for the state testified that the victim received at
least one blow to the head that caused her death. She went on
to explain that the body showed no evidence of more than one
blow to the head, although she could not rule out that further
blows might have occurred that did not show up on the body.
Neither this testimony by the state’s pathologist, nor any other
evidence, supports the prosecutor’s inference that the victim
was repeatedly hit and beaten. The remarks were prejudicial
because they implied that defendant beat the victim beyond
all reason when the evidence shows that it is more likely the
victim received one blow to the head that killed her.
Despite the inappropriate references by the prosecutor, we
cannot say that his comments were “so fundamentally unfair
as to deny [the defendant] due process” based on the “totality
of the circumstances.” Many of the improper comments came
during the closing and the jury was instructed by the court
shortly thereafter to look only to the evidence, not the
comments of the lawyers. Furthermore, the considerable
amount of physical evidence pointing to defendant’s guilt
cannot be ignored. The jury was likely to convict defendant
based on this evidence even had the prosecution not made the
improper comments. The comments went to the nature and
intent of the attack, not to defendant’s guilt or innocence of
killing the victim. Accordingly, we find that the comments
made by the prosecutor were error, but that the jury would
probably have returned the verdict of guilty anyway.
2. Brady Violation. Under Brady, the prosecution must
disclose favorable evidence to the defendant. Favorable
evidence is material if “there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” United States v.
Bagley, 473 U.S. 667, 682 (1985). Here, the question is
whether the government failed to preserve evidence that
might have been useful to the defendant. The defendant must
show that the government (1) acted in bad faith in failing to

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No. 00-3663 Hamblin v. Mitchell 21
preserve the evidence; (2) that the exculpatory nature of the
evidence was apparent and (3) the defendant was unable to
obtain similar evidence. Arizona v. Youngblood, 488 U.S. 51,
57-58 (1988).
The State’s firearm expert testified that there was a negative
result on the defendant’s clothes for gunshot residue. The
defense was not notified of the results before trial; and, by the
time of trial, the state had lost the evidence. Defendant claims
that the evidence was necessary because it might have cast
doubt on whether he shot the ranger. (The shooting of the
ranger and the murder of Lillian Merrick were tried together.)
The district court, although finding the claim procedurally
defaulted, addressed it and found no bad faith on the part of
the government and found the evidence of only “speculative”
materiality.
Again, given that the evidence of defendant’s guilt is
substantial, we cannot find that a “reasonable probability”
exists that the state’s failure “undermines confidence in the
outcome of the trial.” Although the government should
always turn over results from firearm tests, and it was at fault
for failing to do this here, this evidence would not have had
an impact on the outcome of the guilt phase nor has it
otherwise “undermined” our confidence in the outcome.
C. Playing Defendant’s Taped Statements at Trial
Defendant was arrested at a bar and taken to the police
station at 11:30 P.M. the night of the incidents. His statement
was taken a little after midnight but Hamblin was not actually
cross-examined because he had been drinking. Two more
statements were taped later that day and the next (Friday and
Saturday, October 14 and 15, 1983). Defendant was given
Miranda warnings before he was questioned and the
prosecution claims that he waived his right to an attorney or
to remain silent. Hamblin claims that he did not knowingly
waive his Miranda rights and was told he could not see a
lawyer until Monday. According to defendant, most of the
22 Hamblin v. Mitchell No. 00-3663
questioning occurred after he told the police he wanted a
lawyer and was told he couldn’t have one until Monday.
The tapes themselves contain mostly irrelevant and/or
inadmissible ramblings of the defendant about himself. On
direct appeal, the Ohio Supreme Court found admission of the
tapes to be harmless error because the physical evidence of
guilt was substantial. We agree. The tapes contained
information about prior crimes, vulgar language from
defendant concerning hatred of homosexuals and other
general information about defendant and his sordid past.
Although the tapes should not have been admitted, we do not
believe their introduction affected the guilty verdict. Much of
the information on the tapes was cumulative of information
that was properly admitted, and the physical evidence
pointing to defendant’s guilt was very strong, rendering this
evidentiary error harmless.
For the foregoing reasons, we reverse the judgment of the
district court and order that the writ of habeas corpus be
granted unless defendant receives a new penalty phase trial
within 180 days of this order.

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No. 00-3663 Hamblin v. Mitchell 23
_________________
DISSENT
_________________
ALICE M. BATCHELDER, Circuit Judge, dissenting. I
respectfully dissent from the granting of the writ, although I
agree that counsel’s assistance during the penalty phase of
Hamblin’s capital trial was deficient. The majority opinion
correctly reflects that prior to both the 2003 revisions to the
1989 ABA Guidelines, and the Supreme Court’s decision in
Wiggins v. Smith, 123 S. Ct. 2527 (2003), this circuit handed
down several cases requiring that defense counsel in a capital
case perform a complete mitigation investigation, including
inquiry into the defendant’s social, physical, medical and
mental history. This case law, which involved assistance of
counsel rendered prior to the 1989 ABA Guidelines, sets a
standard that is very similar to those 1989 Guidelines. And
under the standard articulated by this court in, for example,
Glen v. Tate, 71 F.3d 1204 (6th Cir. 1995), Hamblin’s
counsel failed to do the mitigation inquiry required.
I dissent from the granting of the writ because I do not
agree with the majority opinion that defense counsels’ failure
to make the necessary mitigation investigation resulted in the
degree of prejudice necessary to meet the Strickland
requirement. Hamblin is not like the defendant in Wiggins,
who had been physically abused as a child and, more
importantly insofar as the Court was concerned, had been
sexually abused repeatedly in foster care throughout his
childhood and adolescence. See, e.g., Wiggins, 123 S. Ct. at
2537 (“Had counsel investigated further, they may well have
discovered the sexual abuse later revealed during state
postconviction proceedings.”); at 2539 (“[T]he records
contain no mention of sexual abuse, much less of the repeated
molestations and rapes of petitioner detailed in the Selvog
report.”); at 2539 (“The [Maryland Court of Appeals] also
assumed, erroneously, that the social services records cited
incidences of sexual abuse.”) Hamblin, although having a
24 Hamblin v. Mitchell No. 00-3663
history of physical abuse, had no history of sexual abuse.
Unlike Wiggins, who had no prior history of violence or
criminal activity, Hamblin had a criminal history that
involved acts of violence. Unlike the petitioner in Glen,
Hamblin cannot point to any medical opinion establishing
neurological impairment or global brain damage, nor can he
demonstrate mental retardation. And unlike the petitioner in
Glen, Hamblin cannot complain that while his own counsel
failed to present evidence of his mental and psychological
deficits, the prosecutor presented expert testimony that he
suffered from no such deficits.
Because I do not agree that there is a reasonable probability
that Hamblin’s jury, had it been presented with the evidence
of Hamblin’s ugly childhood, would not have imposed the
death penalty, I dissent from the granting of the writ.

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