John David Stumpf v. BETTY MITCHELL, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0124P (6th Cir.)
File Name: 04a0124p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JOHN DAVID STUMPF,
Petitioner-Appellant,
v.
BETTY MITCHELL, Warden,
Respondent-Appellee.
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No. 01-3613
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 96-00668—George C. Smith, District Judge.
Argued: December 11, 2002
Decided and Filed: April 28, 2004
Before: BOGGS, Chief Judge; and DAUGHTREY and
MOORE, Circuit Judges.
_________________
COUNSEL
ARGUED: Alan M. Freedman, MIDWEST CENTER FOR
JUSTICE, Chicago, Illinois, for Appellant. Carol Ann
Ellensohn, OFFICE OF THE ATTORNEY GENERAL,
Columbus, Ohio, for Appellee. ON BRIEF: Alan M.
Freedman, Carol Heis, MIDWEST CENTER FOR JUSTICE,
Chicago, Illinois, for Appellant. Stephen E. Maher, OFFICE
2 Stumpf v. Mitchell No. 01-3613
OF THE ATTORNEY GENERAL, Columbus, Ohio, for
Appellee.
DAUGHTREY, J., delivered the opinion of the court, in
which MOORE, J., joined. BOGGS, C. J. (pp. 44-52),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The
petitioner, John David Stumpf, is a state prisoner incarcerated
on Ohio’s death row. He appeals the district court’s dismissal
of his habeas corpus petition, filed pursuant to 28 U.S.C.
§ 2254, in which he challenged his 1984 guilty plea and death
sentence for one count of aggravated murder, with the capital
specification that the murder was committed to escape
detection, apprehension, trial, and punishment for other
offenses, including aggravated robbery and attempted
aggravated murder. Specifically, Stumpf alleges (1) that his
guilty plea was involuntary and unknowing; (2) that his due
process rights were violated by the state’s use of inconsistent
theories to secure convictions against both Stumpf and his
accomplice, Clyde Wesley; (3) that he was deprived of
effective assistance of counsel at sentencing; and (4) that the
Ohio death penalty statute is unconstitutional on its face and
as applied to him.
Prior to entering a guilty plea, Stumpf had waived his right
to a trial by jury and elected to have his case heard by a three-
judge panel. Under Ohio law, when a defendant pleads guilty
to aggravated murder, the court must hold an evidentiary
hearing to establish a factual basis for the plea. The three-
judge panel held such a hearing in this case and found that
there was a factual basis for Stumpf’s plea, that he was guilty
of aggravated murder with the capital specification and,

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No. 01-3613 Stumpf v. Mitchell 3
ultimately, that there was insufficient mitigating evidence to
spare Stumpf from imposition of the death penalty.
Under Ohio law at the time of Stumpf’s conviction, the
aggravated murder statute required that “specific intent” be
proved to convict someone of that crime. At the evidentiary
hearing to establish a factual basis for Stumpf’s plea, Stumpf
and his attorneys argued that he did not shoot the victim and,
indeed, that he was not present when the victim was shot.
The state argued in response that Stumpf was the shooter, and
the three-judge panel that heard the case adopted the state’s
theory, finding that Stumpf was the actual shooter. At a later
trial of Stumpf’s accomplice Wesley, however, the state
presented the testimony of a jailhouse informant to establish
that Wesley was the shooter. When Stumpf sought to
withdraw his guilty plea on the basis of Wesley’s conviction,
the state opposed his motion, arguing that the informant’s
testimony was unreliable.
We conclude that the district court should have granted
relief to Stumpf on either or both of two alternative grounds:
first, that his guilty plea was unknowing and involuntary
because he was manifestly not aware that specific intent was
an element of the crime to which he pleaded guilty and,
second, that Stumpf’s due process rights were violated by the
state’s deliberate action in securing convictions of both
Stumpf and Wesley for the same crime, using inconsistent
theories. Because we are granting relief on these two
grounds, we do not reach Stumpf’s challenge to the
effectiveness of counsel’s representation at sentencing or to
the constitutionality of the Ohio death penalty statute.
I. PROCEDURAL AND FACTUAL BACKGROUND
A. The District Court’s Factual Findings
Most of the underlying facts are undisputed in this case and
do not affect the legal determinations necessary to the
resolution of the appeal. For that reason, and because we
4 Stumpf v. Mitchell No. 01-3613
1W esley and Stumpf had carried Edmonds’s chrome R aven and
W esley’s black .25 caliber pistol with them into the ho use.
review the district court’s determination of the facts only for
clear error, we adopt the district court’s characterization of the
facts, as determined by the state courts, as follows:
On May 14, 1984, Stumpf, Clyde Daniel Wesley, and
Norman Leroy Edmonds, after visiting a bar in
Washington, Pennsylvania, got on Interstate 70 and
headed west toward Ohio. By sundown, they had
reached Guernsey County. They stopped their car along
I-70 and, leaving Edmonds in the car, Stumpf and
Wesley walked to a nearby house under the pretense of
needing to make a phone call. The house they chose was
owned and occupied by Norman and Mary Jane Stout.
Stout admitted Stumpf and Wesley into his home and
allowed them to use the phone. When they had
completed the call, both Stumpf and Wesley produced
pistols and announced a robbery.1 Stumpf held the
Stouts at gunpoint in a back bedroom while Wesley
searched the house for items to steal.
At some point, Stout moved toward Stumpf, and
Stumpf shot him between the eyes with his pistol. The
shot was not fatal, and Stout subsequently pushed
Stumpf into the next room. During this altercation, Stout
was struck on the head with a pistol and shot in the head
a second time. These actions were enough to render him
semi-conscious but not to kill him. While lying on the
floor in the other room, Stout heard four gunshots. There
is no dispute that Mary Jane Stout was shot and killed
during the course of this robbery, although there is a
dispute as to whether Stumpf or Wesley fired the fatal
shots. After Mrs. Stout was killed, Stumpf and Wesley
stole the Stout’s car and fled. Stumpf was arrested
several days later, and after initially denying any

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No. 01-3613 Stumpf v. Mitchell 5
knowledge about these crimes and then being told that
Stout had survived, he confessed to being involved.
At the time the trial court proceedings occurred,
Wesley had not yet been extradited from Texas.
However, subsequent to Stumpf’s having pleaded guilty
and having been sentenced to death, Wesley was
convicted of aggravated murder by a jury and received a
sentence of life imprisonment without the possibility of
parole for 20 years. The State introduced evidence at
Wesley’s trial that Wesley and not Stumpf fired the shots
that killed Mrs. Stout. Edmonds was not charged in the
Stout murder and robbery, but was charged for other
offenses committed during this crime spree, and he
agreed to and did testify against both Stumpf and Wesley
concerning the murder of Mary Jane Stout.
Stumpf v. Anderson, No. C-1-96-668 (S.D. Ohio Nov. 9,
1999).
B. Additional Facts Regarding Ballistics Evidence
Of the two bullets that struck Stout, only pieces of each
were recovered. Part of the bullet that struck him between the
eyes was recovered during surgery, while a second fragment
was found in the second bedroom. A portion of the bullet that
struck Stout in the top of the head was recovered during
surgery, but part of it had to be left in place. Another bullet
was recovered from the mattress of the second bedroom.
Stout’s wife was shot four times in the first bedroom. She
died from three gunshots to the left side of her head. The
fourth bullet went through her left wrist and struck her chest
without penetrating the skin of her chest. A fifth bullet was
recovered from the wall of that bedroom, above the headboard
of the bed.
The chrome Raven was never recovered by the police, and
Stumpf admitted that he had thrown it out of the car window
6 Stumpf v. Mitchell No. 01-3613
after he and Wesley had left the Stout residence. The black
.25 caliber pistol was recovered by the police after the men
sold it, along with one of Stout’s guns, to an individual in
Washington, Pennsylvania. Ronald Dye, a ballistics expert
from the Ohio Bureau of Criminal Identification and
Investigation, a division of the Ohio Attorney General’s
office, testified at Stumpf’s factual basis hearing as to the
forensic findings regarding bullets and cartridge cases
recovered from the murder scene. Dye testified that there
were eight spent cartridges found at the scene, that seven of
them had been fired by one gun, and one was fired by a
different gun. Dye also said that the black pistol, which had
been recovered by the police, fired one bullet, while the other
seven bullets were all fired by the same gun. That gun could
have been the chrome Raven, or one of several other types of
guns.
At Stumpf’s plea proceeding, the prosecutor argued that the
ballistics evidence supported the conclusion that Stumpf had
shot Mrs. Stout, since she was apparently shot with the same
weapon used against her husband, saying, “There’s ample
evidence to conclude that this defendant fired all shots that hit
anybody, because the same gun fired all of those shots.”
However, during Wesley’s trial, the same prosecutor put
Eastman, Wesley’s cellmate, on the witness stand, to repeat
Wesley’s confession to him. According to Eastman, Wesley
told him that after Stumpf had shot Stout in the face, he
dropped the chrome Raven and ran, at which point Wesley
picked up the pistol and shot Mrs. Stout. This version of the
crime was also supported by the ballistics evidence that the
black pistol had a tendency to jam after firing just one round,
which may have led Wesley to discard it after shooting it only
once.
C. The Guilty Plea
Stumpf and Wesley could not be tried together because
Wesley contested his extradition from Texas, where he had
been apprehended. As a result, while Wesley was still

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No. 01-3613 Stumpf v. Mitchell 7
detained in Texas, Stumpf pleaded guilty to the aggravated
murder of Mary Jane Stout, in violation of Ohio Rev. Code
§ 2903.01(B), and to the capital specification under Ohio Rev.
Code § 2929.04(A)(3) that the murder was committed for the
purpose of escaping detection, apprehension, trial or
punishment for the offenses of the aggravated robbery of the
Stouts. He also pleaded guilty to the attempted aggravated
murder of Norman Stout and to a firearms specification for
each count. Subsequent to the entry of his plea, the
prosecutor notified the trial judge that a plea agreement had
been reached. Stumpf was questioned about the agreement at
some length, as detailed below.
D. The Evidentiary Hearing
Under Ohio law, the trial court must conduct an evidentiary
hearing in all aggravated murder cases involving guilty pleas,
to determine whether there is a factual basis for the plea.
Following Stumpf’s entry of a waiver to have a jury hear the
evidence, the hearing commenced before a three-judge panel.
During the factual basis hearing, the prosecution argued
that Stumpf had shot Mrs. Stout, while the defense argued
that Mrs. Stout was shot by Wesley, not by Stumpf. The
three-judge panel found Stumpf “guilty beyond a reasonable
doubt” of count one of the indictment (aggravated murder of
Mary Jane Sout), along with specification one (that she was
killed to escape detection for the crimes of aggravated
robbery and attempted aggravated murder) and specification
four (firearm), and guilty of count two of the indictment
(attempted aggravated murder of Norman Stout), with its
firearm specification.
E. The Mitigation Hearing
The mitigation hearing was held one day after the
conclusion of the evidentiary hearing, lasted less than two
days, and consisted of the presentation of 15 witnesses for the
defense – primarily some of Stumpf’s friends and family
8 Stumpf v. Mitchell No. 01-3613
members and a few former employers and teachers – and of
an unsworn statement by Stumpf himself. Defense counsel
presented no expert witnesses, beyond a parole officer and a
court clerk who testified as to Stumpf’s lack of a significant
criminal history. The general defense strategy was to show
that Stumpf had a generally good nature, lacked a violent
temper, had a fairly steady work history but a limited
education, had a difficult home environment, and was
respectful towards women. Stumpf’s unsworn statement
recounted his version of the crime and emphasized that
Wesley, and not Stumpf, had shot Mary Jane Stout.
Following the hearing, the three-judge panel sentenced
Stumpf to death, finding that he had established only two
mitigating factors: his age (23) and his lack of a significant
criminal background.
F. Appellate Procedural History
After Stumpf’s conviction, and while his direct appeal was
pending, Clyde Wesley was also convicted, by a jury, of
Mary Jane Stout’s murder. As a result, Stumpf filed a motion
for leave to withdraw his guilty plea or, in the alternative, to
have the trial court set aside his death sentence and grant him
a new sentencing hearing. The motion was summarily denied
by two of the three judges who had heard his case at the trial
level (the third judge had died in the interim), and the Ohio
Supreme Court affirmed the order at the same time it affirmed
Stumpf’s conviction on direct appeal.
Stumpf then filed a petition for post-conviction relief in
state court, raising challenges to the validity of his jury trial
waiver and the effectiveness of trial counsel’s representation,
particularly with regard to counsel’s advice to Stumpf that he
would not receive the death penalty if he pleaded guilty. In
the petition, Stumpf requested an evidentiary hearing and
submitted multiple affidavits in support of his claims. The
trial court dismissed the petition without an evidentiary
hearing, and this decision was affirmed by the Ohio Court of

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No. 01-3613 Stumpf v. Mitchell 9
Appeals. The Ohio Supreme Court dismissed the appeal, see
State v. Stumpf, 560 Ohio St. 3d 712(1990), and the United
States Supreme Court subsequently denied certiorari. See
Stumpf v. Ohio, 502 U.S. 956 (1991).
Stumpf next filed a petition for a writ of habeas corpus in
federal court, alleging as grounds for relief that the Ohio
Death Penalty statute is unconstitutional, both as written and
as applied to Stumpf; that his guilty plea was not knowing
and intelligent; that his waiver of the right to a jury trial was
invalid; that he received ineffective assistance of counsel at
the penalty phase; that he was not permitted to be present at
his motion for a new trial; that the trial court improperly
considered non-statutory aggravating circumstances and
ignored substantial mitigating evidence when deciding his
sentence; that the trial court erred in denying his motion to
vacate his sentence or withdraw his guilty plea based on
newly discovered evidence; that consideration of post-
sentence proceedings by less than the entire three-judge panel
violated his due process rights; and that the trial court erred
by failing to follow an Ohio statutory requirement that the
court produce a meaningful written analysis of the mitigation
evidence as a basis for imposing a death sentence.
The district court issued two opinion and orders. The first
found that several of petitioner’s claims had been
procedurally defaulted, see Stumpf v. Anderson, No. C-1-96-
668 (S.D. Ohio Nov. 9, 1999); the second denied relief on the
remaining claims, see Stumpf v. Anderson, No. C-1-96-668
(S.D. Ohio Feb. 7, 2001). However, the district court did
grant a certificate of appealability on the following five
issues: (1) whether the statutory provisions governing Ohio’s
capital punishment scheme violate the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States
Constitution, either on their face or as applied to Stumpf;
(2) whether Stumpf’s guilty plea was knowing, intelligent and
voluntary; (3) whether Stumpf received the ineffective
assistance of counsel at the penalty phase of his trial;
(4) whether Stumpf’s due process rights were violated when
10 Stumpf v. Mitchell No. 01-3613
the trial court failed to vacate his sentence or allow him to
withdraw his plea based on newly discovered evidence; and
(5) whether Stumpf received the ineffective assistance of
appellate counsel. Before us, Stumpf has pressed the first
four claims but has abandoned the claim that appellate
counsel was ineffective.
II. STANDARD OF REVIEW
Because Stumpf’s federal habeas petition was filed in
November 1995, the amendments to 28 U.S.C.§ 2254
contained in the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) do not apply to this case. See Lindh v.
Murphy, 521 U.S. 320, 336)(1997) (finding that AEDPA
changes do not apply to cases pending at the time of
AEDPA’s enactment on April 24, 1996). Stumpf’s claims,
therefore, must be evaluated under § 2254(d) as it existed
prior to the enactment of AEDPA.
Accordingly, we review the district court’s disposition of
a petition for writ of habeas corpus de novo, although the
district court’s factual findings are reviewed only for clear
error. McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir.
1996). We also defer to the state court’s factual findings,
which may be rebutted only by “clear and convincing
evidence.” Id. However, this deference only applies to
“basic, primary facts” and not to mixed question of law and
fact, which are subject to de novo review. Id.
III. ANALYSIS
A. The Validity of the Petitioner’s Guilty Plea
The Supreme Court has held, in Boykin v. Alabama, 395
U.S. 238 (1969), that when a defendant enters a guilty plea,
the state bears the burden of showing that the plea was
voluntary, intelligent and knowing. Determining whether a
plea is voluntary, intelligent and knowing requires an analysis
of the totality of the circumstances. Garcia v. Johnson, 991

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No. 01-3613 Stumpf v. Mitchell 11
F.2d 324, 326 (6th Cir. 1993). When a defendant brings a
federal habeas petition challenging his plea, the state
generally satisfies this burden by producing a transcript of the
plea proceeding. Garcia, 991 F.2d 324, 326. A state court
finding that the plea was proper is accorded a presumption of
correctness, unless the transcript of the plea proceeding is
inadequate to demonstrate that the plea was voluntary,
intelligent and knowing. Garcia at 326-27; Dunn v. Simmons,
877 F.2d 1275, 1277 (6th Cir. 1989), overruled on other
grounds by Parke v. Raley, 506 U.S. 20 (1992).
The proper standard of review in this case, then, turns on
whether the record of state court proceedings surrounding
Stumpf’s guilty plea “leav[es] doubt as to whether the plea
was in fact intelligent and voluntary.” Dunn v. Simmons, 877
F.2d at 1277 (citing Roddy v. Black, 516 F.2d 1380, 1384 (6th
Cir. 1975)). If the record does leave doubt as to whether the
plea was voluntary, intelligent and knowing, and the
defendant argues that it was not, the State bears the burden of
proving the contrary. Id. (citing Boykin v. Alabama, 395 U.S.
238, 243 (1969).
Although Stumpf does not contend explicitly that his guilty
plea was invalid because he was not aware that specific intent
was an element of the crime to which he pleaded guilty, this
argument is inherent in the fact that he continually professed
his innocence of committing the actual shooting both during
and after the guilty plea. The record reflects, for example, his
expectation that he would be given an opportunity to present
evidence to the three-judge panel relevant to his conduct.”
Moreover, the record indicates that the explicit statutory
requirement of intent was never explained to Stumpf during
the plea colloquy. Furthermore, although his attorneys
represented to the court that they had explained to Stumpf the
elements of the crime, their own arguments to the court
during the plea colloquy and the evidentiary hearing to
establish a factual basis for the plea refute the typical
presumption that defense counsel have fully and adequately
explained all elements of a crime to a client before he pleads
12 Stumpf v. Mitchell No. 01-3613
2Ohio Rev. Code § 2903.01 was amended on July 1, 1996. Section
(D) was removed and replaced with additional descriptions of aggravated
murd er. See Ohio Rev. Cod e § 2903 .01 (2002).
guilty. Indeed, defense counsel’s representations to the court
either betray their own ignorance of the intent element of
aggravated murder, or represent a woefully inadequate
understanding of the meaning of a guilty plea. Finally, the
plea colloquy itself, along with Stumpf’s statements to the
court through all stages of the proceedings, demonstrates
Stumpf’s unwillingness to admit to intent.
At the time of Stumpf’s crime and subsequent conviction,
Ohio’s aggravated murder statute specified that specific intent
was a necessary element of aggravated murder. The statute
read as follows:
§ 2903.01 Aggravated murder.
(A) No person shall purposely, and with prior
calculation and design, cause the death of another.
(B) No person shall purposely cause the death of another
while fleeing immediately after committing or attempting
to commit kidnapping[sic], rape, aggravated arson or
arson, aggravated robbery or robbery, aggravated
burglary or burglary, or escape.
(C) Whoever violates this section is guilty of aggravated
murder, and shall be punished as provided in section
2929.02 of the Revised Code.
Ohio Rev. Code § 2903.01 (1984)(amended 1996).2
Stumpf was convicted under § 2903.01(B), which, although
it specifies that the murder must be caused “purposely,” does
not specifically require intent. However, subsection (D) of
the same statute clarifies that intent is indeed a necessary
element of aggravated murder:

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No. 01-3613 Stumpf v. Mitchell 13
(D) No person shall be convicted of aggravated murder
unless he is specifically found to have intended to cause
the death of another . . . .
Ohio Rev. Code § 2903.01 (1984) (amended 1996).
Furthermore, the statute limits fact-finders from inferring
specific intent solely from an accused’s participation in a
felony murder:
[I]n no case shall a jury in an aggravated murder case be
instructed in such a manner that it may believe that a
person who commits or attempts to commit any offense
listed in division (B) of this section is to be conclusively
inferred, because he engaged in a common design with
others to commit the offense by force and violence or
because the offense and the manner of its commission
would be likely to produce death, to have intended to
cause the death of any person who is killed during the
commission of or attempt to commit, or flight from the
commission of or attempt to commit, the offense. If a
jury in an aggravated murder case is instructed that a
person who commits or attempts to commit any offense
listed in division (B) of this section may be inferred,
because he engaged in a common design with others to
commit the offense by force or violence or because the
offense and the manner of its commission would be
likely to produce death, to have intended to cause the
death of any person who is killed during the commission
of, attempt to commit, or flight from the commission of
or attempt to commit the offense, the jury also shall be
instructed that the inference is nonconclusive, that the
inference may be considered in determining intent, that
it is to consider all evidence introduced by the
prosecution to indicate the person’s intent and by the
person to indicate his lack of intent in determining
whether the person specifically intended to cause the
death of the person killed . . . .
14 Stumpf v. Mitchell No. 01-3613
Ohio Rev. Code § 2903.01(D) (1984)(amended 1996).
Finally, the fact-finder must also be instructed that “the
prosecution must prove the specific intent of the person to
have caused the death by proof beyond a reasonable doubt.”
Ohio Rev. Code § 2903.01(D) (1984) (amended 1996). Read
together, these provisions indicate that specific intent may not
be inferred solely from the fact of participation in a felony
murder but must be established explicitly by the prosecution.
Ohio courts have confirmed this interpretation of the
statute. In In re Washington, 691 N.E.2d 285, 287 (1998), the
Supreme Court of Ohio considered an appeal regarding
whether there was sufficient evidence to support the specific
intent requisite for an aggravated murder conviction, in a case
in which the murder was committed in the course of a
robbery. As the court explained: “Washington cannot [be
found guilty of] aggravated murder based solely on his
complicitous actions. It is also necessary for the state to
establish that Washington acted with the kind of culpability
required of the commission of aggravated murder.” In re
Washington, 691 N.E.2d at 286. In this particular case, the
court found that there was sufficient evidence for the trial
court to conclude that Washington had acted with the
requisite intent, because the trial court inferred intent only
after “hearing and considering all the evidence” instead of
presuming intent based on Washington’s participation in the
robbery. In re Washington, 691 N.E.2d at 288.
Here, the record of the plea proceeding clearly
demonstrates that the defendant did not possess an
understanding of the aggravated murder charge to which he
pleaded guilty. Although the district court ultimately
concluded that the state court record was suggestive of a
knowing and voluntary plea, it did concede that the plea
proceeding was “not a picture of clarity.” We agree, and we
note that this “lack of clarity” first surfaced at the moment the
prosecutor informed the court that a plea agreement had been
reached. He gave the following account of the agreement:

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No. 01-3613 Stumpf v. Mitchell 15
SCOTT: Your Honor, the first matter that would be dealt
with or the State would ask leave of Court pursuant to
Criminal Rule 7 (D) and Ohio Revised Code Section
2941.30 to amend by interlineation specification one to
the first count of the Indictment in order that it may read
as follows: The Grand Jurors further find and specify
under Ohio Revised Code Section 2929.04(A)(3) in
compliance with Ohio Revised Code Section 2941.14
that the aforesaid offense being the offense charged in
the first court, the Aggravated Murder, was [committed]
for the purpose of escaping detection, apprehension, trial
or punishment for other offenses – the words, “other
offenses” are the first change, committed by the above
named John David Stumpf, to wit: Aggravated Robbery
and then we’re adding the language “and Attempted
Aggravated Murder”. If that amendment is granted, the
defendant then would enter a plea of guilty to the first
count contained in the Indictment, being the Aggravated
Murder count and a plea of guilty to specification one to
the first count as amended; would also enter a plea of
guilty to the second count in the Indictment, being the
offense of – excuse me, back up. As to the first count he
would also enter a plea of guilty to specification four to
the first count. So, he will be pleading to the first count,
the amended specification one to the first count and
specification four to the first count. With regard to the
second count, being the Attempted Aggravated Murder,
he would enter a plea of guilty to the Attempted
Aggravated Murder and a plea of guilty to the
specification to the second count. If the pleas of guilty to
the two counts and the specifications I’ve mentioned are
accepted by the Court, the Court would then proceed
under Criminal Rule 11(c)(3) to determine if there is a
factual basis for the plea of guilty to the Aggravated
Murder charge and the existence of the aggravating
circumstances and if the pleas are accepted the State
would then ask leave to enter a nolle pros as to
specifications two and three to the first count and also a
nolle pros as to the third, fourth and fifth counts in the
16 Stumpf v. Mitchell No. 01-3613
3The plea agreement also merged specification four of count one, and
specification one o f count two. T hat is, both gun spe cifications were to
be treated as part o f the same offense for sentencing purposes.
Indictment and including the specification to the third
count.
That is my understanding of the arrangement that we are
proposing to the Court at the present time.3
Reviewing this portion of the trial court record, the district
court commented that “the prosecuting attorney’s explanation
of the plea agreement was somewhat difficult to follow, and
that criminal defendants in such situations will often answer
questions posed by the trial court without a clear
understanding of each and every term uttered – especially if
advised by counsel to do just that.” But the trial court in this
case, rather than attempting to elucidate the prosecutor’s
explanation for the defendant, immediately turned to the
defendant for verification of the prosecutor’s account of the
plea agreement. As the record reveals, even at this stage in
the plea agreement, the defendant appeared to be unable to
follow the proceedings:
JUDGE HENDERSON: Thank you, Scott. Before
ruling on the motion or amendment of the Indictment, I
would ask Counsel for the defense if they wish to
comment upon the statement of the Prosecutor. Tingle?
TINGLE: If the Court please, the statement made by the
Prosecuting Attorney is an accurate statement based upon
our discussions with him earlier today and one upon
which we are ready to proceed at this time.
JUDGE HENDERSON: I’m going to ask the Counsel
for the defendant to inform the defendant that I am going
to ask one question of the defendant very shortly and that
question is this: Do you, John David Stumpf,
affirmatively acknowledge the agreement that has been

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No. 01-3613 Stumpf v. Mitchell 17
stated by the Prosecutor and concurred in by the
defendant’s counsel? Having forewarned the defendant
of the question that is to be asked, I’m going to ask that
question now. Stumpf, do you affirmatively
acknowledge this agreement?
STEPHENS: Would you repeat the question for him
Your Honor?
JUDGE HENDERSON: Stumpf, do you affirmatively
acknowledge the agreement that has been stated by the
Prosecutor and concurred in by your attorneys?
THE DEFENDANT: Yes, sir.
Obviously, not every ambiguity in a plea proceeding,
without more, will demonstrate that a plea is not “knowing
and intelligent.” However, the exchange set out above turned
out to be merely the beginning of much confusion that was to
follow. After allowing amendment of the indictment, the
court conducted a plea colloquy, examining first the defense
attorneys, and then the defendant:
JUDGE HENDERSON: The Indictment seems to be in
order and the Court is going to make certain inquiries of
the counsel for the defendant and the defendant as to the
proposed entry of the guilty plea. It is necessary that
question be asked and answers thoughtfully given in a
case of this sort. I’m going to inquire of the attorneys for
the defendant, have you fully investigated the facts and
the law of this case and determined whether there exists
any question of the admissibility of any claimed
admissions, confessions or other evidence under Federal
and State law and advised your client concerning the
same?
TINGLE: We have, Your Honor.
18 Stumpf v. Mitchell No. 01-3613
JUDGE HENDERSON: Have you informed your client
of the elements of the offenses with which he is charged,
of all defenses which may be available to him and of all
of his Constitutional rights, both State and Federal?
TINGLE: Yes, we have.
After his attorneys indicated that they had explained the
elements of the crime to their client, Stumpf was sworn in for
the limited purpose of answering questions concerning his
guilty plea, and affirmed his attorney’s statements, as follows:
JUDGE HENDERSON: Stumpf, I’m going to ask you
a number of questions and if you do not understand those
questions you may inquire of your attorneys to better
able you to understand everything that is being asked
you. These have to do with the rights that you have as a
person who has been accused of a crime. Do you
understand that you have a constitutional privilege
against self-incrimination?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: With a full understanding that
anything that you say may be used against you, are you
willing then to answer questions with regard to your
understanding of your rights?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Now, you heard the questions
that I put to your attorneys, I believe, relative to their
advice to you and their counseling of you, did you not?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Do you personally
acknowledge that your attorneys have informed and
advised you as they say they have?

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No. 01-3613 Stumpf v. Mitchell 19
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Are you satisfied with the
services which they have performed for you?
THE DEFENDANT: Yes, sir.
Judge Henderson next questioned Stumpf as to his physical
and mental health, and whether he was presently under the
influence of drugs or alcohol. He then went over the crimes
to which Stumpf was pleading guilty. The following is a
complete account of his explanation to the defendant:
JUDGE HENDERSON: Do you understand that you are
charged with several offenses? The first offense being
that of Aggravated Murder, that there have been two
specifications being presented at this time in this
particular proceedings, to wit: Aggravated Robbery and
Attempted Murder and possession of a firearm while
committing those offenses. Do you understand that?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Do you understand also that
you have been charged with the offense of Attempted
Aggravated Murder, which is a felony in the first degree?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: For the first count, which is that
of Aggravated Murder, you are subject to the following
penalties: you are subject to being – to a sentence of
twenty years without probation, that is, a sentence of life
without probation for twenty years; a sentence of life
without probation for a period of thirty years and the
death penalty by electrocution could be imposed against
you. Do you understand that, sir?
THE DEFENDANT: Yes, sir.
20 Stumpf v. Mitchell No. 01-3613
JUDGE HENDERSON: Do you understand also that
you would be subject under the – under specification four
to the first count to three years incarceration before you
begin to serve any other sentence?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Do you understand also that the
Attempted Aggravated Murder, which is set forth in
count two, is a felony in the first degree and that you
could be sentenced to be incarcerated for a period of four,
five, six or seven but not more than twenty-five years?
Do you understand that, sir?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Do you understand also that for
a felony of the first degree that you could be fined not
more than $10,000.00?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: And that you could receive
both the fine and the incarceration, which I have
mentioned?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Are you presently on probation
or parole, sir?
THE DEFENDANT: No, sir.
As indicated below, Stumpf has a low IQ and has been
found to be mentally and emotionally immature.
Nevertheless, the trial court never inquired into Stumpf’s
ability to understand the guilty plea proceedings or the nature
of the charges against him. The explanation set out above is
the only account of the crimes provided to Stumpf by the

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No. 01-3613 Stumpf v. Mitchell 21
4Stumpf did initial the interlineation amendment to the indictment
during the plea hearing, but there is no ind ication in the record that he had
actually read the indictment at any point or that it had been read to him.
Moreo ver, we conc lude that use of the term “purp osely” is not sufficient
to put the defendant on no tice that specific intent, which is expressly more
than intent implied from participation in a felony, is a required element of
aggravated murder.
court. Nowhere does the court explain the elements, or even
read the charges as listed in the indictment.4
Judge Henderson then proceeded to question Stumpf about
the rights he was surrendering by pleading guilty. The
exchange went as follows:
JUDGE HENDERSON: Do you understand that if you
plead guilty you will waive, that is, you will give up the
right to a jury trial or trial by the Court; the right to be
presumed innocent and until proved guilty beyond a
reasonable doubt; the right to confront and to question
the witnesses against you and to have compulsory
process for obtaining witnesses in your favor; the right
to remain silent or to testify at your trial as you may
choose and that no inferences may be drawn if you
choose not to testify at your trial. Do you understand
that you may be giving up those rights?
STEPHENS: Your Honor, with reference to that, we
have explained that to the defendant. He was going to
respond but we have informed him that there is, after the
plea, a hearing or trial relative to the underlying facts so
that he is of the belief that there will be presentation of
evidence and I wanted to make that clear to the Court
with reference to his right of waiver of trial to Court.
JUDGE HENDERSON: I understand that and I
appreciate your bringing that to my attention, Stephens.
Of course in the sentencing portion of this trial you do
have those rights to speak in your own behalf to present
22 Stumpf v. Mitchell No. 01-3613
evidence and testimony on your own behalf. My
statement to you and my question to you was intended to
except those rights that you do have. Counsel, is that
satisfactory?
STEPHENS: Yes, sir.
We read this exchange to reflect a misunderstanding
between attorney Stephens and Judge Henderson. Stephens,
answering for Stumpf, asserted the defendant’s right to
present evidence during “a hearing or trial relative to the
underlying facts” of the case. He was plainly referring to the
factual basis hearing and asserting the defendant’s wish to
challenge the state’s version of the facts. Judge Henderson
indicated in response that the defendant could present
evidence during “the sentencing portion of this trial,”
apparently referring to the mitigation phase. In any case, this
was the first indication that the defendant did not wish to
concede the state’s version of the facts. The parties next
discussed a prior suppression hearing, and then the court
resumed questioning Stumpf:
JUDGE HENDERSON: Do you understand, Stumpf,
that if any promises or inducements have been made to
you by any person to cause you to plead guilty that they
are not binding upon the Court, that if you plead guilty
that Court, this panel of Judges, will decide your
sentence after considering all of the evidence that is to be
presented and evidence in mitigation of punishment and
after considering a presentence investigation, report and
recommendation approved and prepared by the probation
department and that you may receive the maximum
sentence prescribed by law. Do you understand that, sir?
THE DEFENDANT: Yes, sir.
JUDGE HENDERSON: Have any promises or
inducements been made to you, sir, other than the

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No. 01-3613 Stumpf v. Mitchell 23
agreement which you have affirmatively acknowledged
on the record?
THE DEFENDANT: No, sir.
JUDGE HENDERSON: Are you in fact guilty of count
one with specification one and specification four?
STEPHENS: One moment, Your Honor. Your Honor,
the defendant has asked me to explain his answer. His
answer in yes. He will recite that with obviously his
understanding of his right to present evidence at a later
time relative to his conduct, but he’ll respond to that.
JUDGE HENDERSON: At no time am I implying that
the defendant will not have the right to present evidence
in mitigation hearing and I do appreciate it, Stephens,
that you bring this to the attention of the Court. And I’m
going to ask that the defendant, himself, respond to the
question that I asked with that understanding that he has
the right to present evidence in mitigation. I’m going to
ask the defendant if he is in fact guilty of the charge set
forth in Count one, including specification one and
specification four?
The Defendant: Yes, sir.
Again, the exchange between Stephens and Judge
Henderson has all the hallmarks of a serious
misunderstanding. Stumpf was unwilling to plead “guilty”
without expressly reserving his right to present evidence
“relevant to his conduct.” Read with the preceding reference
to presenting evidence, this could only refer to the subsequent
evidentiary hearing to establish a factual basis for the plea.
Stumpf, obviously, was reiterating his desire to challenge the
state’s account of his actions, and had the procedure called for
an immediate determination of the evidence relied upon by
the state to support the defendant’s imminent conviction, the
misunderstanding would undoubtedly have come to light
24 Stumpf v. Mitchell No. 01-3613
before the plea was finalized and Stumpf’s fate was sealed.
Once again, however, Judge Henderson referred to the
defendant’s “right to present evidence in mitigation hearing,”
completely missing the clear implication that despite his
admission of guilt, Stumpf was concerned about preserving
his ability to contest the state’s account of his actions.
Moreover, defense counsel’s arguments during the
subsequent evidentiary hearing confirm the defendant’s desire
to contest the state’s version of the crime. From the opening
statement at that hearing, counsel argued that Wesley, not
Stumpf, was the one who shot Mary Jane Stout. For example,
defense counsel’s opening statement included the following:
[T]he scenario as outlined by Scott [the prosecutor] does
follow the sequence of events as they did occur, except
for the statements as to the actual shooting of Mary Jane
Stout, which the defendant believes the evidence will
show occurred at the hands of Daniel Wesley.
The district court rejected Stumpf’s argument that his
position that he was not the shooter rendered his guilty plea
involuntary, relying on Garcia v. Johnson, 991 F.2d 324, 327
(6th Cir. 1993), as authority for the proposition that a
“temporary qualification of position by the defendant is not
sufficient to rebut the presumption of correctness of state
court proceedings, and to support a finding that [the
defendant] did not understand the nature of his plea.” Stumpf
v. Anderson, 2001 WL 242585 (S.D. Ohio 2001) (quoting
Garcia, 991 F.2d at 327). We conclude that the district
court’s reliance was misplaced, however, because Stumpf’s
qualification was more than temporary, and it was never
addressed by the trial court.
By contrast, in Garcia, the defendant first claimed that he
had not intended to kill his victim. Garcia, 991 F.2d at 327.
After this statement, the judge conducted “a substantial
discussion” with the defendant regarding the facts of the case,
and Garcia then admitted that he had intended to kill his

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No. 01-3613 Stumpf v. Mitchell 25
victim. Id. Here, the trial judge, before accepting Stumpf’s
plea, had not informed the defendant that specific intent was
an element of the crime to which he was pleading, nor had he
inquired whether Stumpf had actually shot the victim or, if
not, had specifically intended that she be killed. In the
absence of some inquiry, Stumpf’s express reservations of his
ability to put on evidence of his version of the crime, along
with his attorneys’ arguments that he did not intend, and was
not even present for, the killing of Mrs. Stout, should have put
the trial court on notice that Stumpf was not aware of the true
import of his plea.
The district court did not focus on the question of intent.
Rather, it found that Stumpf’s position that he was not the
shooter was consistent with the specification to which he
pleaded guilty. However, in making this finding, the district
court failed to recognize that Stumpf’s position is inconsistent
with the charge to which he also pleaded guilty. It is this
inconsistency that gives rise to his claim that his plea was not
validly entered.
Generally, a reviewing court presumes that defense counsel
has explained the elements of the crime to a defendant
pleading guilty, even where the record does not reflect any
statement by counsel to that effect. Berry v. Mintzes, 726
F.2d 1142, 1147 (6th Cir. 1984) (“it may be appropriate to
presume that in most cases defense counsel routinely explain
the nature of the offense in sufficient detail to give the
accused notice”); but cf. Henderson v. Morgan, 426 U.S. 637,
642-48 (1976) (finding that, where the defendant’s attorneys
had argued to the court that their client had not intended to
harm the victim, there could be no presumption that counsel
had explained to their client that intent was an element of the
crime). In this case, defense counsel did state to the court that
they had informed Stumpf of the elements of the crime. In a
typical case, such an assurance would prevent a reviewing
court from finding that a plea was involuntary. In this case,
however, the record clearly establishes that Stumpf sought to
preserve his right to argue that he was not the shooter and
26 Stumpf v. Mitchell No. 01-3613
thus counterbalances the assurances given by defense counsel
that they had explained the elements to Stumpf.
We recognize, of course, that Stumpf need not have been
the “principal offender” – the actual shooter – in order to have
specifically intended the death of Mary Jane Stout.
Nevertheless, it is clear from the record of the factual basis
hearing that the state’s theory of guilt relied completely on
Stumpf being the principal offender. The prosecution
presented no evidence that Stumpf intended Mrs. Stout’s
death, other than arguing that he was the actual shooter. In
the closing arguments at the evidentiary hearing, defense
counsel, contending that the prosecution had not met its
burden with regard to the basis for seeking the death penalty,
effectively challenged the prosecution’s proof as to specific
intent to kill. The prosecutor responded that “[a]s to a
purpose to kill, whoever shot Mrs. Stout didn’t intend to do
her any favors when he shot her four times. It seems to me
that shooting a person four times shows what your intent
was.”
Indeed, the three-judge panel, which presumably knew of
the intent element, found, beyond a reasonable doubt, that
Stumpf was “the principal offender” in the aggravated murder
and made no other finding as to specific intent. Their
conclusion in this regard indicates that the panel found that
Stumpf’s shooting of Mrs. Stout provided the requisite
specific intent, as there was no other evidence in the record to
satisfy this element. Given this finding, it is unlikely that
Stumpf can be said to have knowingly conceded specific
intent to kill by pleading guilty, when he continued to
maintain throughout the proceedings that he had not been the
one who actually shot the victim.
We conclude that the record of Stumpf’s plea hearing and
the subsequent evidentiary hearing, taken together,
demonstrate that the plea he entered was constitutionally
invalid. Boykin holds that, “because a guilty plea is an
admission of all the elements of a formal criminal charge, it

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No. 01-3613 Stumpf v. Mitchell 27
5Indeed, in Henderson, the defendant had heard the indictment,
which charged that he had “willfully” stabbed the victim, read in open
court. Henderson, 426 U.S. 637 , 642. The Sup reme Court found that this
was not sufficient to put him on notice that intent was a required element
of the crime to which he was p leading guilty. Id. at 645-46.
cannot be truly voluntary unless the defendant possesses an
understanding of the law in relation to the facts.” Boykin, 395
U.S. 238, 243 n.5 (1969). This understanding must include
“real notice of the true nature of the charge against him, the
first and most universally recognized requirement of due
process.” Henderson v. Morgan, 426 U.S. 637, 644 (1976)
(quoting Smith v. O’Grady, 312 U.S. 329, 344 (1941) (finding
that, because the defendant did not know intent was an
element of the crime to which he pleaded guilty, his plea
could not be voluntary).5 We have held that “a guilty plea is
not deemed voluntary where the person entering it does so
without understanding of the consequences of his plea.”
United States v. Stubbs, 279 F.3d 402, 411, 412 (6th Cir.
2002) (quotation omitted) (finding, in a split decision in a
case involving a mandatory minimum sentence, that if the
“essential elements of the crime with which the defendant was
charged were not understood by the defendant, his counsel, or
the district court, then the defendant’s guilty plea would be
constitutionally invalid”).
As discussed above, when the state court record of a
defendant’s plea does not demonstrate that the plea is
constitutionally adequate, the state bears the burden of
showing the plea was voluntary, knowing and intelligent.
Here, the state has presented no extrinsic evidence to counter
the record of the proceedings discussed above. Instead, the
respondent has explicitly relied on that record alone to argue
that the plea was voluntary, knowing, and intelligent. Given
the paucity – indeed, the lack -- of the evidence to refute what
is clear on the record, we must conclude that the state has
therefore not met its burden of showing that the plea may
stand.
28 Stumpf v. Mitchell No. 01-3613
6Stumpf also claims that his plea was invalid because he was not
aware that he remained eligible for the death penalty. W e disco unt this
as a possible basis for relief, however, because the record of the plea
hearing indicates that the judge, while listing the possible sentences
Stumpf could receive for aggravated murder, did inform Stumpf at the
time of his plea that “the death penalty by electrocution could be imposed
against you.” The judge then asked whether Stumpf understood, and
Stumpf answered, “Yes, sir.”
Furthermore, the totality of the circumstances surrounding
the plea provide additional evidence that the plea was not
voluntary, knowing, and intelligent. For example, Stumpf
argues that the fact that he remained eligible for the death
penalty and, therefore, pleaded guilty under an agreement that
provided absolutely no benefit in the form of a reduction in
possible sentence, is an additional indication that his plea was
not knowing and intelligent.6 This argument standing alone
would be not carry much weight, given the well-recognized
principle that a guilty plea cannot be rendered involuntary
merely because, in hindsight, it turned out not to be the best
decision. See McMann v. Richardson, 397 U.S. 759, 769-71
(1970). However, Stumpf’s decision to plead guilty – by
agreement – to a crime with a capital specification, especially
in the absence of any identifiable reason to take such a course
of action, creates an additional inference that his plea was
invalid. In combination with his position that he was not the
shooter, which reveals his ignorance of specific intent as an
element of the crime, the record indicates that Stumpf’s plea
was involuntary “because he ha[d] such an incomplete
understanding of the charge that his plea cannot stand as an
intelligent admission of guilt.” Ivy v. Caspari, 173 F.3d 1136,
1141-42 (8th Cir. 1999)(guilty plea involuntary where
defendant was not informed that intent was a necessary
element of the underlying felony).
The question of counsel’s effectiveness in representing
Stumpf is not before us as an independent ground for relief.
It is, however, raised in the context of challenge to the
validity of his guilty plea. The record shows clearly that

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No. 01-3613 Stumpf v. Mitchell 29
Stumpf has always denied being the shooter. It is also clear
that defense counsel’s strategy, throughout both the
evidentiary hearing and the mitigation hearing, was to argue
that after Stumpf shot Norman Stout he panicked and fled,
that Stumpf was not even present in the home when Mary
Jane Stout was shot, and that Wesley was, in fact, the one
who shot Mrs. Stout. One possible, if unlikely, explanation
for counsel’s strategy is that they themselves were unaware
that specific intent was an element of the crime. But, failure
to research the most basic details of the statute under which
their client was charged would be outside the “range of
competence” to which the defendant is entitled. See
Henderson v. Morgan, 426 U.S. 637, 647 (1976). Perhaps
more disturbing is the possibility that counsel, realizing that
intent was an element of the offense, nonetheless chose to
allow their client to plead guilty and then – and only then – to
contest the existence of that element. But this, too, would
manifestly constitute ineffective assistance, since a plea is not
merely a confession but serves as a conviction, with only the
resulting sentence left to be decided. Boykin v. Alabama, 395
U.S. 238, 242 (1969). It is true that Ohio requires a factual
basis hearing in cases of aggravated murder, but it would
nonetheless be reckless and plainly incompetent for an
attorney to rely on a factual basis hearing to refute an element
of a crime to which his client has already pleaded guilty.
Finally, whether Stumpf’s lawyers were aware of the intent
element or not, their behavior compels the conclusion that
Stumpf himself was not aware of the intent element.
Stumpf’s observation of his attorneys’ attempt to contest the
state’s version of events, and his own position throughout the
plea colloquy that he intended to challenge the state’s facts-
a position evidently sanctioned by his attorneys, reaffirms the
conclusion that Stumpf was not aware that by pleading guilty
to aggravated murder he was admitting to specific intent to
kill Mary Jane Stout.
There are other indications in the record, as well, pointing
to the existence of at least a reasonable probability that
Stumpf would not have pleaded guilty had he known that
30 Stumpf v. Mitchell No. 01-3613
such a plea would have amounted to admitting that he
specifically intended the death of Mary Jane Stout. A
mitigation investigator later reported, in an affidavit, that
“John did not want to plead guilty.” Moreover, affidavits
from Stumpf’s family affirm the impression that his attorneys
were less than candid in explaining to them the motive behind
the plea. for example, Stumpf’s mother and sister said that
they were told by Stumpf’s attorney that he would not receive
the death penalty because of his plea.
We conclude from the record before us, as it relates to the
murder of Mary Jane Stout, that there exists a reasonable
probability that, had the petitioner been fully informed of the
elements of the offense to which he was pleading and
consequences of that plea, he would not have pleaded guilty
to her aggravated murder.
B. The Due Process Violation
At the time of Stumpf’s post-plea evidentiary hearing and
his mitigation – or sentencing – hearing, his accomplice,
Wesley, was still in Texas, fighting extradition. During both
Stumpf’s plea hearing, held pursuant to Ohio Rev. Code
§ 2945.06, and his sentencing hearing, the prosecutor argued,
and the three-judge panel ultimately found, that Stumpf was
the principal offender, responsible for actually shooting Mary
Jane Stout. After Stumpf’s sentencing in the fall of 1984, the
state tried Clyde Wesley before a jury in the spring of 1985.
Wesley was also charged with aggravated murder with capital
specifications, and during his trial, the state argued that
Wesley, not Stumpf, was the shooter. To support this
argument, the state presented testimony from Eastman,
Wesley’s cellmate, about statements Wesley had made to
Eastman concerning details about the murder. Wesley took
the stand and denied that he was the shooter, but the jury
convicted him of the aggravated murder of Mrs. Stout. At the
sentencing phase of Wesley’s trial, the same jury then
recommended a sentence of 20 years to life, rather than the
death penalty.

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No. 01-3613 Stumpf v. Mitchell 31
Stumpf argues that the prosecutor’s use of two conflicting
theories concerning the identity of the shooter to convict both
him and Wesley constitutes a due process violation.
The Constitution’s Due Process clause guarantees every
defendant the right to a fair trial. Lassiter v. Department of
Soc. Servs., 452 U.S. 18, 24-5 (1981); Turner v. Louisiana,
379 U.S. 466, 471-72 (1965). The Supreme Court has also
emphasized that “because the prosecutor is in a peculiar and
very definite sense the servant of the law, the twofold aim of
which is that guilt shall not escape or innocence suffer. . ., it
is as much his duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use
every legitimate method to bring about one.” Berger v.
United States, 295 U.S. 78, 88 (1935), overruled on other
grounds, Stirone v. United States, 361 U.S. 212 (1960).
Drawing on the principle that the Constitution’s “overriding
concern [is] with the justice of the finding of guilt,” United
States v. Agurs, 427 U.S. 97, 112 (1976), several of our sister
circuits have found, or implied, that the use of inconsistent,
irreconcilable theories to secure convictions against more than
one defendant in prosecutions for the same crime violates the
due process clause. See, e.g., Smith v. Groose, 205 F.3d 1045
(8th Cir. 2000); Thompson v. Calderon, 120 F.3d 1045 (9th
Cir. 1997) (en banc); Drake v. Kemp, 762 F.2d 1449 (11th
Cir. 1985) (en banc) (Clark, J., specially concurring); cf.
Nichols v. Scott, 69 F.3d 1255 (5th Cir. 1995) (involving a
situation where both defendants had shot at the victim and it
was unclear whose bullet had actually hit and killed the
victim; the court found that the two theories advanced by the
prosecution were not inconsistent because both defendants
could have been convicted under the law of parties). On this
issue of first impression in this court, we now join our sister
circuits in finding that the use of inconsistent, irreconcilable
theories to convict two defendants for the same crime is a due
process violation.
32 Stumpf v. Mitchell No. 01-3613
In Smith v. Groose, the Eighth Circuit considered a case in
which a prosecutor had used two different, conflicting
statements by a co-defendant at successive trials to convict
the petitioner at the first trial and a second individual at a
second trial. Smith v. Groose, 205 F.3d 1045, 1049 (8th Cir.
2000). That case involved a group of four young men who
were looking for homes to burglarize one evening. In the
course of their search, they saw another group of burglars
breaking into a home. They realized they knew these men
and decided to help them break into the house. The residents
were murdered in the course of the burglary. The primary
issue at trial was whether the murders took place before or
after the four young men began participating in the offense.
One of the four men first told the police that the other group
had committed the murders without the participation of the
group of four. Two days later, he told police that he had seen
one of the four men from his group stabbing the victims with
a pocketknife; he later recanted this story. The prosecutor
then used both statements to obtain convictions against men
in each of the two groups. Id. at 1047-49.
Examining the record before it, the Eighth Circuit held that
“[t]he use of inherently factually contradictory theories
violates the principles of due process.” Id. at 1052. The court
found that in order to amount to a due process violation, an
inconsistency in the prosecutor’s theories “must exist at the
core of the prosecutor’s case against defendants for the same
crime.” Id. This constitutes a due process violation because
it renders convictions unreliable, given that “[the s]tate’s
duty to its citizens does not allow it to pursue as many
convictions as possible without regard to fairness and the
search for truth.” Id. at 1051.
In finding a due process violation under these
circumstances, the Eighth Circuit in Smith v. Groose was
careful to distinguish the facts in its case from those in the
Fifth Circuit’s opinion in Nichols v. Scott, 69 F.3d 1255 (5th
Cir. 1995), where the court did not reach the due process
question in a case in which the prosecutor argued in two

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No. 01-3613 Stumpf v. Mitchell 33
7The majority opinion rested on an ineffective assistance of counsel
claim. See Thompson v. Calderon, 120 F.3d 10 45, 1051 -56 (9th Cir.
1997)(en banc). However, desp ite the fact that a majority of judges did
not join in the portion of the opinion finding a due process violation,
several of the conc urring and dissenting judge s indicated that they would
find a due process violation for the use of wholly inconsistent theories to
convict separate defendants. See, e.g., Thompson, 120 F.3d at 1063-64
(Tashima, J., concurring, joined by Thomas, J.)(agre eing with the premise
that “due p rocess is violated when a pro secuto r pursues who lly
inconsistent theories of a case at separate trials” but arguing that, in order
to find prejudice, the court must decide which of the two theories is
true)(quotation omitted ); Thompson, 120 F.3d at 1066-73 (Ko zinski, J.,
dissenting, joined by N elson, J.)(“In the case o f mutually inconsistent
verdict, which I am not sure is the case here, I believe that the state is
required to take the necessary steps to set aside or modify at least one of
the verdicts.” Id. at 1071.)
separate cases that different defendants had each shot the one
bullet that killed the victim. Id. at 1268. The distinction in
the Nichols case was that both perpetrators had fired shots at
the victim, and both could have been convicted under a felony
murder theory. Therefore, the prosecutor’s arguments were
not factually inconsistent, because both defendants could have
been convicted even if the prosecutor had used the identical
argument in both cases. Groose, 205 F.3d at 1051.
Finally, the Ninth Circuit considered a similar situation in
Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en
banc), vacated on other grounds, 523 U.S. 538 (1998). In
that case, the prosecutor argued at one trial that, based on
jailhouse informant testimony, one defendant had committed
a rape and murder. At a second trial, the prosecutor used
different jailhouse informants to argue that the second
defendant had the motive and disposition to commit the
crimes. A plurality of the en banc Ninth Circuit,7 specifically
excluding situations where new evidence comes to light,
found that a prosecutor cannot use inconsistent theories of the
same crime in order to secure multiple convictions. Id. at
1058. The court echoed Judge Clark’s concurrence in an
34 Stumpf v. Mitchell No. 01-3613
Eleventh Circuit case which, although it granted habeas relief
on alternate grounds, also involved inconsistent theories:
The prosecutor’s theories of the same crime in the two
different trials negate one another. They are totally
inconsistent. This flip flopping of theories of the offense
was inherently unfair. Under the peculiar facts of this
case the actions by the prosecutor violate the
fundamental fairness essential to the very concept of
justice. . . The state cannot divide and conquer in this
manner. Such actions reduce criminal trials to mere
gamesmanship and rob them of their supposed search for
the truth.
Thompson, 120 F.3d at 1059 (quoting Drake v. Kemp, 762
F.2d 1449, 1479 (11th Cir. 1985) (en banc) (Clark, J.,
concurring)).
In this case, the state clearly used inconsistent,
irreconcilable theories at Stumpf’s hearings and Wesley’s trial
At each proceeding, the prosecutor argued that the defendant
had been the one to pull the trigger, resulting in the fatal shots
to Mary Jane Stout. At Wesley’s trial, the prosecutor relied
on Eastman’s testimony and on the gun-switching scenario
argued by Stumpf, to secure Wesley’s conviction. The
prosecutor asserted:
Believing he had killed Mr. Stout, [Stumpf] pitched the
gun aside and left the immediate area back the hallway
down the steps to the basement. At that point [Wesley,]
whose own gun was jammed, picked that chrome colored
Raven up and as Mrs. Stout sat helplessly on her bed,
shot her four times in order to leave no witnesses to the
crime.
These statements are irreconcilably inconsistent with those
made by the very same prosecutor at Stumpf’s plea hearing,
when he told the trial court:

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No. 01-3613 Stumpf v. Mitchell 35
Believing that the had killed Mr. Stout, Stumpf [then]
turned the same chrome colored Raven automatic pistol
upon Mary Jane Stout as she sat on the bed and shot her
four times. Three times in the left side of the head and
neck and one time in the writs; obviously in order not to
leave anyone available to identify him.
The state claims that, because Eastman’s testimony was not
available at the time of Stumpf’s guilty plea, Stumpf is really
asserting Wesley’s due process claim in the guise of his own.
The state also argues that “it was of no import to the charge
of capital murder against Stumpf which of the two
[defendants] killed the witness [Mrs. Stout]” since the capital
specification was that Mrs. Stout was killed because she was
a witness to the crime, and not that the defendant had been the
shooter. Finally, the state asserts that inconsistent,
irreconcilable theories were not used in these two cases,
because the prosecution did not rely on Eastman’s testimony
at Wesley’s trial. None of these arguments is persuasive.
First, Stumpf clearly has a due process claim even though
Eastman’s testimony was not available at the time of his trial.
It is true that this is not a case where the prosecutor
selectively presented evidence in Stumpf’s case to support the
theory of the murder he was arguing in that case. However,
the due process challenge to the use of inconsistent theories
is based on the notion of fundamental fairness. Because
inconsistent theories render convictions unreliable, they
constitute a violation of the due process rights of any
defendant in whose trial they are used. In Groose, the
petitioner was in fact the defendant at the first trial, and the
second, inconsistent theory did not come to light until four
years after his conviction, at the second trial. Groose, 205
F.3d at 1048. Nevertheless, the Eighth Circuit found that his
due process rights had been violated. Logically, “both
[defendants’ due process rights] were prejudiced by the
prosecutor’s actions or neither’s were.” Drake, 762 F.2d at
1479 (Clark,J., concurring). Furthermore, it is disingenuous
of the state to argue that there is no violation of Stumpf’s
36 Stumpf v. Mitchell No. 01-3613
8In fact, W esley’s co unsel wanted to inform the jury that the
prosecutor had p reviously argued that Stumpf, and not W esley, was the
shooter. The prosecutor argued that Stumpf had never admitted to firing
the shots, and that his own argument was irrelevant. The trial court did
not allow Wesley’s counsel to discuss Stumpf’s proceedings in front of
the jury.
rights because the prosecutor had no knowledge of Eastman’s
testimony at the time of Stumpf’s plea. The state learned of
Eastman’s testimony soon after Stumpf’s plea and sentencing
and yet continued to maintain that the convictions of both
Stumpf and Wesley, each of which was obtained by arguing
that a different individual was the shooter, were sound and
reliable.8 Indeed, as discussed below, the state maintained
that Eastman’s testimony was unreliable during a hearing on
Stumpf’s motion to vacate his plea and/or his sentence. To
this day, there has been no suggestion of corrective action by
the state.
The state’s second argument, with which the district court
agreed, is that the identity of the shooter was not the critical
issue in either trial and that therefore the use of different
theories did not violate Stumpf’s due process rights. By
pleading guilty to capital murder, the state’s argument goes,
Stumpf admitted concerted action with Wesley in causing the
death of Mary Jane Stout for the purposes of avoiding
detection. All that was left for the prosecution then to prove,
under this theory, was that Mrs. Stout was killed so that the
defendant could escape detection for other crimes. But this
argument ignores the fact that, as the aggravated murder
statute existed in 1984, specific intent was a necessary
element of the crime. Ohio Rev. Code § 2903.01(B); see also
supra, pp.15-16. Because Stumpf never confessed to specific
intent to kill Mrs. Stout, the prosecution bore the burden of
proving beyond a reasonable doubt that Stumpf was guilty of
the charge.
Finally, the state argues that irreconcilable theories were
not used because Eastman’s testimony was completely

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No. 01-3613 Stumpf v. Mitchell 37
unreliable. State’s counsel even asserted at oral argument that
the state did not rely on Eastman’s testimony in order to
prosecute Wesley. This argument is just short of astounding,
given the fact that in seeking to convict Wesley of aggravated
murder, the prosecution offered no proof of the element of
specific intent other than the theory that Wesley was the
actual shooter. That the state relied on Eastman’s testimony
is evident from the fact that it presented his testimony to the
jury, and from the fact that it prevented Wesley’s counsel
from presenting evidence of Stumpf’s guilty plea. Had the
state presented a theory of the crime consistent with the
theory it asserted at Stumpf’s evidentiary hearing, it would
have had no need to keep that information from Wesley’s
jury.
The district court ultimately accepted the state’s argument
that the core issue at Stumpf’s evidentiary hearing was not the
identity of the shooter. However, in reaching this conclusion,
the court started with what we believe to be a faulty
assumption, i.e., that “the state was not required to prove that
petitioner was the actual shooter.” The district court, in
concluding that the specification to which Stumpf pleaded
guilty, Ohio Rev. Code § 2929.04(A)(3), did not require that
Stumpf be proven to be the “principal offender,” overlooked,
once again, the fact that the aggravated murder statute itself
requires specific intent. See discussion supra pp. 15-16. The
state was not required to prove that the petitioner was the
actual shooter, but it was required to prove specific intent.
Even proceeding from the district court’s false assumption,
however, we cannot agree with the court’s ultimate
conclusion. The district court found that, although the state
was not required to prove that Stumpf was the actual shooter,
“the fact remains that the state did argue that petitioner was
[the] actual shooter and the trial court did find that petitioner
was the actual shooter.” The district court went on to
recognize that the trial court cited this very finding as “a
reason, and a very substantial reason” that petitioner received
the death penalty. The district court found, however, that
38 Stumpf v. Mitchell No. 01-3613
9Indeed, only two fact-finders actually observed Eastm an’s
testimony. The jury at Wesley’s trial obviously credited Eastman enough
to find W esley guilty. The trial judge, in pre-trial proceedings, made at
least one credib ility determination when he found that Eastman was not
a government agent within the m eaning of Miranda v. Arizona, 384 U.S.
436 (1966). See State v. Wesley, 1986 O hio App. LEX IS 8651 (1 986).
habeas relief was not warranted, because the Supreme Court
of Ohio’s independent reweighing of the aggravating and
mitigating circumstances cured any misplaced reliance on
Stumpf having been the actual shooter. Apparently engaging
in such a reweighing process, the Ohio Supreme Court
concluded that Eastman’s testimony was not sufficient to tip
the balance of aggravating and mitigating factors.
We cannot agree with this reasoning, because we do not
believe that a reweighing of the factors used to support
imposition of the death penalty cures the due process
violation at issue. The Ohio Supreme Court, it is true, found
that “the testimony of a cellmate during Clyde Wesley’s trial
is of minimal credibility, especially in light of appellant’s
guilty plea and the substantial evidence to the contrary
adduced during appellant’s sentencing hearing.” State v.
Stumpf, 32 Ohio St. 3d at 106. But, putting aside for the
moment the question of whether Eastman’s testimony need be
credible for a due process violation to be established by the
state prosecution’s presentation of and evident reliance on it,
there is no explicit state court determination regarding
Eastman’s credibility to which this court must give deference.
Although there is a presumption that a state court’s factual
findings are correct, this presumption applies only to basic
facts and to those facts implicitly established through the trial
court’s unique ability to judge the witnesses’ credibility and
demeanor. See McQueen v. Scroggy, 99 F.3d 1302, 1310
(6th Cir. 1996). No court at any level considering Stumpf’s
claims actually observed Eastman’s testimony.9 The first
court explicitly to examine the transcripts of that testimony,
the two-judge trial panel, failed to make any factual findings,
instead denying Stumpf’s motion summarily. The Supreme

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No. 01-3613 Stumpf v. Mitchell 39
10Eastman testified at W esley’s trial that W esley told him that after
Stumpf had shot Mr. Stout, Stumpf panicked and dropped the .25 caliber
Raven. W esley then picked up the Raven and shot Mrs. Stout a few
times. W hen Mrs. Stout moaned, W esley shot her again to make sure she
was dead.
11One could argue that this story is more likely to be plausible
because it is so similar to Stumpf’s acco unt of the crime, which he
recounted many months before Eastman testified.
Court of Ohio recognized as much when it found that the trial
court had “apparently” determined that Eastman’s testimony
did not change the balancing of mitigating and aggravating
factors. The Supreme Court of Ohio also presumably
examined the transcripts, concluding that the testimony was
of “minimal credibility.” Neither the presumed factual
finding by the trial court, nor the more explicit one made by
the Supreme Court of Ohio is due the type of complete
deference contemplated by the state, because neither of these
courts had any better opportunity to judge Eastman’s
credibility than we do.
Finally, the state presses an argument that Eastman’s
testimony was not credible because it relied on “the same type
of implausible gun switching and gun juggling that Stumpf
told.”10 This, of course, is beside the point. The pertinent
fact for Stumpf’s due process claim is not whether Eastman’s
gun-switching story is plausible,11 but whether the
prosecution relied on that story to secure Wesley’s conviction.
The prosecution found Eastman’s testimony credible enough
to present the “implausible gun switching” theory to Wesley’s
jury and obtain his conviction on that theory.
In holding that a constitutional violation occurred in this
case, we recognize that at least one circuit has suggested that
a due process violation for the use of conflicting theories may
be obviated when the second of two inconsistent theories
results from the discovery of new evidence. See Thompson v.
Calderon, 120 F.3d 1045, 1058 (“when no new significant
40 Stumpf v. Mitchell No. 01-3613
evidence comes to light a prosecutor cannot, in order to
convict two defendants at separate trials, offer inconsistent
theories and facts regarding the same crime”). We have no
quarrel with this proposition, to the extent that it is meant to
acknowledge a state’s need to continue to investigate crimes
and to present all available evidence in court. However, in
this case, although Eastman’s testimony did not come to light
until after Stumpf had been convicted and sentenced to death,
the state had many opportunities to correct its use of
conflicting theories. Stumpf, upon learning of the state’s
reliance on the theory that Wesley was actually the shooter,
timely filed a motion to vacate his guilty plea and/or his
sentence. The two judges hearing this motion expressed some
concern over whether there was evidence that Stumpf was not
in fact the shooter, but the state did not take that opportunity
to advocate that all the available evidence be presented to the
sentencing panel.
A due process claim is a mixed question of law and fact and
is therefore subject to de novo review. Williams v. Coyle,
260 F.3d 684, 706-07 (6th Cir. 2000). Here, the proper
standard of review is whether there is a reasonable probability
that the prosecutor’s use of inconsistent, irreconcilable
theories rendered the conviction unreliable. See, e.g., id., 260
F.3d at 706-07; Brady v. Maryland, 373 U.S. 83 (1963);
Strickland v. Washington, 466 U.S. 668, 694(1984). A
“reasonable probability” is a probability sufficient to
undermine the outcome and is less than a preponderance of
the evidence. Strickland at 694; Lyons v. Jackson, 299 F.3d
588, 599 (6th Cir. 2002).
Measured against this standard, the state’s due process
violation mandates that both Stumpf’s plea and his sentence
be set aside. First, there is a reasonable probability that, had
the prosecution not pursued conflicting theories concerning
who was the actual shooter, Stumpf either would not have
pleaded guilty or the three-judge panel would not have found
a factual basis for the specific intent element of aggravated
murder. Second, and perhaps more likely, there is a

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No. 01-3613 Stumpf v. Mitchell 41
reasonable probability that, had the prosecution not pursued
inconsistent theories, Stumpf would not have been sentenced
to death.
As discussed at length above, it was necessary for the three-
judge panel to find that Stumpf specifically intended the death
of Mary Jane Stout in order for it to accept his plea to
aggravated murder. Ohio Rev. Code § 2903.01(D) (“[n]o
person shall be convicted of aggravated murder unless he is
specifically found to have intended to cause the death of
another”). The prosecution offered virtually no evidence
regarding intent other than its contention that Stumpf shot
Mrs. Stout. Had the prosecution’s alternate theory been heard
by the three-judge panel, there is a reasonable probability that
it would have found Stumpf guilty of something less than
aggravated murder.
Moreover, there is more than a reasonable probability that
the three-judge panel would not have sentenced Stumpf to
death had the prosecution not employed inconsistent and
irreconcilable theories. In explaining its reasoning for finding
that the aggravating factors in Stumpf’s case outweighed the
mitigating factors (and therefore that Stumpf deserved the
death penalty), the court’s first pronouncement was that it had
“f[oun]d beyond a reasonable doubt that the Defendant was
the principal offender in count one of the indictment,” i.e., the
aggravated murder charge. In turn, this finding prevented the
panel from concluding that Stumpf was not the principal
offender, which would have been “a powerful mitigating
factor.” State v. Green, 90 Ohio St. 3d 352, 363
(2000)(noting that “[v]ery few death sentences have been
approved against persons who were not the principal
offender”). In fact, during the hearing on Stumpf’s motion
to withdraw his guilty plea, one of the original panel
members, Judge Bettis, stated:
[I]f we had not been satisfied that Stumpf was, in fact,
the trigger man, the principal offender. . . that may very
well have had an effect upon this Court’s determination
42 Stumpf v. Mitchell No. 01-3613
of whether the death penalty should follow. I’m not
saying it would, but it’s possible.
It is true that Judge Bettis made this comment during a
hearing in which the panel had before it both a transcript of
Eastman’s testimony and evidence of the prosecution’s
reliance on that theory of the crime. However, the fact that
the panel did not grant Stumpf’s motion to withdraw his
guilty plea does not dictate the conclusion that they did not
find Eastman’s testimony persuasive. First, in denying the
motion summarily, the panel stated, “The Court took the
matter under advisement and after having considered the
same, does overrule the Motion to Withdraw Former Plea and
the Alternative Motion to Set Aside the Sentence Imposed.”
Because the court gave no basis for its ruling, the denial of
relief could have been made on any number of grounds; it
would be impossible to divine its reasoning. Hence, the
panel’s rejection of Stumpf’s motion does not negate the
conclusion that, had the prosecution’s alternate theory been
before the panel at a sentencing proceeding, there is a
reasonable probability that the panel would not have
sentenced him to death. Second, only two of the three judges
on the original panel were still alive when Stumpf brought his
motion. Stumpf’s contention that his motion should have
been heard by three judges was rejected by the Ohio Supreme
Court:
R.C. 2945.06 expressly provides that “[t]he judges or a
majority of them may decide all questions of fact and law
arising upon the trial. . . .” Unanimity is mandated only
when the panel finds a defendant guilty or not guilty.
Whether appellant was entitled to withdraw his guilty
plea or to a new sentencing hearing were questions of
law, properly determined by a majority of the panel.
State v. Stumpf, 32 Ohio St. 3d 95, 105 (1987).
Under Ohio Rev. Code § 2945.06, then, only one judge’s
opinion was required to deny Stumpf’s motion. However,

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No. 01-3613 Stumpf v. Mitchell 43
under the same provision, unanimity was required as to
questions of guilt and penalty. Because the third judge on
Stumpf’s panel died before the prosecution’s alternate theory
and Eastman’s testimony came to light, the trial court’s denial
of Stumpf’s motion can prove nothing as to whether that third
judge, at the factual basis or mitigation hearings, would have
been persuaded by Eastman’s testimony, and the state’s
reliance on it, that Stumpf should either not have been found
guilty of aggravated murder, or should not have received the
death penalty.
Finally, as petitioner points out, Ohio courts have held that
reweighing of aggravating and mitigating circumstances by a
higher court is not a cure for errors in the sentencing process,
where the result of the weighing process, had the correct
factors been present, is unknown. State v. Davis, 28 Ohio St.
3d 361, 372 (1988) (“We cannot accept independent review
as a cure in this particular action because we cannot know if
the result of the weighing process by the three-judge panel
would have been different had the impermissible aggravating
circumstance not been present.”).
IV. CONCLUSION
On the basis of the two claims addressed in this opinion,
that Stumpf’s guilty plea was not voluntary, knowing and
intelligent and that his due process rights were violated by the
prosecution’s use of inconsistent, irreconcilable theories to
convict both him and his accomplice, we REVERSE the
district court’s decision and REMAND this case to the district
court with instructions to issue the writ of habeas corpus in
the petitioner’s favor, unless the state elects to retry him
within 90 days of the date of entry of the conditional writ.
Because we are granting Stumpf relief on both his involuntary
plea and due process claims, we need not reach his remaining
arguments.
44 Stumpf v. Mitchell No. 01-3613
______________
DISSENT
______________
BOGGS, Chief Judge, dissenting. The court has reversed
the district court’s denial of a writ of habeas corpus on two
grounds: that Stumpf’s guilty plea was involuntary and
unknowing, and that his due process rights in his own trial
and sentencing were violated by the state’s later use of
evidence against another person. I disagree with both of these
conclusions, and therefore respectfully dissent from the
granting of the writ of habeas corpus.
I
I begin with the second of the court’s two grounds, as I
believe that is the more profoundly mistaken. The majority
cites three cases from other circuits to buttress its theory that
Ohio’s prosecution of Wesley, which took place in April
1985, some seven months after Stumpf pleaded guilty and
was sentenced to death, somehow violates Stumpf’s due
process rights. None of the three are germane to this case.
In Thompson v. Calderon, a celebrated California death
penalty case, the court vacated a death sentence because the
prosecutor presented two mutually incompatible theories for
the rape-murder during contemporaneous trials of two
defendants, Thompson and Leitch. Thompson v. Calderon,
120 F.3d 1045 (9th Cir. 1997) (en banc) (plurality), vacated
on other grounds, 523 U.S. 538 (1998). During the pre-trial
proceedings for both men, and in Leitch’s trial, the
prosecutor’s theory was that Leitch killed the victim, his
girlfriend, because he wanted to get back together with his ex-
wife; Thompson assisted him in the crime. Id. at 1055. In
Thompson’s trial, however, the prosecutor argued that
Thompson had raped the victim and then killed her to cover
up his act. He presented different jail house informants at
each trial to bolster each contradictory theory. Id. at 1056.

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No. 01-3613 Stumpf v. Mitchell 45
The Ninth Circuit held that this shift in arguments violated a
prosecutor’s duty to discover the truth and that he was
improperly trying to secure convictions for their own sake.
Thompson, 120 F.3d at 1058-59; see, e.g., Berger v. United
States, 295 U.S. 78, 88 (1935) (stating that the government’s
fundamental interest in a criminal prosecution is “not that it
shall win a case, but that justice shall be done”). It also found
that Thompson, who was tried first, was prejudiced due that
the fact that “[o]nly in Thompson's trial did the prosecutor
change the theory and the arguments [from those presented in
the pre-trial hearing], and offer facts that directly conflicted
with the underlying premise of the charges he brought.”
Thompson, 120 F.3d at 1059.
Distinguishing Thompson from the case before us is not
difficult, however. First of all, the prosecutor in Thompson
pursued the two mutually incompatible theories of the murder
at contemporaneous trials after joint pre-trial proceedings, and
deliberately chose witnesses who would tell the conflicting
story that he needed to convict each defendant. Knowingly
putting on false evidence is prosecutorial misconduct that
violates the Due Process Clause. Napue v. Illinois, 360 U.S.
264, 269 (1959). Nothing in this case indicates that the
prosecutors deliberately presented false evidence: Stumpf
pleaded guilty to aggravated murder with the specification of
killing a witness and attempted aggravated murder with a
firearm. The State had every reason to believe his over-all
admission of responsibility. It was under no obligation,
however, to accept at face value his assertion that he did not
actually pull the trigger, especially in light of contradictory
forensic evidence, such as the fact that a .25-caliber weapon
killed Mrs. Stout, the same caliber as Stumpf’s gun.
Nor did the prosecutor in Thompson collect new evidence
between trials; he simply manipulated the facts that he had.
In contrast, Wesley’s trial took place seven months after
Stumpf pleaded guilty, during which time informant Eastman
told prosecutors that Wesley confessed that he murdered
Mrs. Stout. However, Wesley denied having confessed to
46 Stumpf v. Mitchell No. 01-3613
1It is worth noting that constitutional claim made in Thompson
ultimately did not prevent the defendant’s execution on July 14, 1998.
Calderon v. Thompson, 523 U.S. 538, 566 (1998) (reinstating the mandate
denying hab eas relief).
Eastman, and the forensic evidence suggested that Eastman’s
statement was not airtight. A cursory comparison of the facts
to those in Thompson therefore reveals that the California
case has little application to our case.1
In Drake v. Kemp, an Eleventh Circuit case, the majority
remanded for a new trial because the burden of proof was
improperly shifted to the defendant and the prosecutor
violated the defendant’s rights during his closing arguments
in the sentencing phase. Drake v. Kemp, 762 F.2d 1449 (11th
Cir. 1985) (en banc). A single concurring judge argued that
Drake’s Fourteenth Amendment rights had been violated.
The prosecutor, in trials that were a year apart, argued in one
instance that a co-defendant must have committed the murder
alone and, after having secured a conviction, argued that same
person was not strong enough to commit the crime, and
therefore Drake must have helped. The concurring judge
concluded that it “seems inescapable that the prosecutor
obtained Henry Drake's conviction through the use of
testimony he did not believe; bringing this case under the
logical if not actual factual framework of . . . Napue.” Drake,
762 F.2d at 1479 (Clark, J. specially concurring). Drake
therefore does not further Stumpf’s case either: a concurring
opinion that turns on the prosecutor’s inferred knowledge that
he was presenting false evidence does not comport with the
facts in this case.
The last case cited by the majority, Smith v. Groose, 205
F.3d 1045 (8th Cir. 2000), is equally unconvincing. That case
involved two groups of robbers, the first of which, when
preparing to burglarize a house, discovered the second
already in the process of stealing the homeowner’s
possessions. The two groups joined forces, and at some point
during the crime the homeowners were murdered. Id. at

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No. 01-3613 Stumpf v. Mitchell 47
1047. The leader of the first group, Anthony Lytle, provided
varying accounts of what happened, alternately claiming that
the head of the second group, Michael Cunningham, killed
the couple and that one of his (Lytle’s) cohorts, James
Bowman, was the murderer. Id. at 1047-48. The state
convicted Jon Keith Smith, another member of Lytle’s group,
for felony-murder based on his association with purported
fellow gang member Bowman, who was argued to be the
actual killer. Four months later, the state then successfully
prosecuted Cunningham for the same murders, based on
Lytle’s other story that Cunningham had already killed the
couple when Lytle and his friends entered the house. Id. at
1048.
The Eighth Circuit ultimately granted Smith a writ of
habeas corpus because the state’s prosecution of Cunningham
violated Smith’s due process rights. Ibid. Again, the crux of
the case was the deliberate presentation of false evidence: “In
short, what the State claimed to be true in Smith's case it
rejected in Cunningham's case, and vice versa.” Id. at 1050.
Only a showing of this kind of prosecutorial misconduct
could support a claim, dubious as it might be, that Stumpf’s
constitutional rights were retroactively violated.
Although this court mentions the prosecution’s knowledge
of Eastman’s subsequent statement concerning Wesley’s
alleged confession to being Mrs. Stout’s killer, the court’s
decision does not rest on this knowledge. It is undisputed that
the prosecution did not know of Eastman’s statement at the
time of Stumpf’s conviction and sentencing. Nothing
indicates that the prosecution cherry-picked facts in order to
confirm Stumpf’s guilty plea in the evidentiary hearing. The
majority does not argue that the prosecution was under any
obligation to confess error in Stumpf’s post-conviction
proceedings or appeals, nor even to bring Eastman’s
statement to Stumpf’s attention. There is simply no
prosecutorial misconduct in this case that could retroactively
implicate Stumpf’s due process rights.
48 Stumpf v. Mitchell No. 01-3613
2Even assuming, arguendo, that the majority is correct that Stumpf
pled guilty based on substandard legal advice, it does not follow that
accepting the acknowledgment of guilt amounts to prosecutorial
misco nduc t, the prerequisite for finding a violation of Stump f’s
constitutional rights. The majority argues that the plea was no t voluntary,
a conclusion I ad dress infra, but the validity of the plea is an entirely
different matter. H owever flawed a d efendant’s guilty plea might be, it
cannot constitute a contradictory prosecutorial theory of guilt, as required
in Groose.
Groose does not “hold that prosecutors must present
precisely the same evidence and theories in trials for different
defendants. Rather [it] hold[s] only that the use of inherently
factually contradictory theories violates principles of due
process.” Id. at 1052. The majority remarkably expands this
holding to conclude that evidence in a second case that
contradicts a guilty plea in an earlier case can implicate due
process rights. Stumpf pled guilty after a colloquy in which
he indicated that he understood that he was waiving certain
constitutional rights. A defendant’s guilty plea is an
“admission that he committed the crime charged against
him.” North Carolina v. Alford, 400 U.S. 25, 32 (1970).
Nothing in the record suggests that the prosecutor was remiss
in relying on Stumpf’s acknowledgment of guilt. See
Dickerson v. United States, 530 U.S. 428, 450 (2000) (Scalia,
J., dissenting) (observing that if a defendant voluntarily
acknowledges wrong-doing, the “Constitution is not . . .
offended by a criminal's commendable qualm of conscience
or fortunate fit of stupidity).2 Therefore, I do not see any
grounds on which to base an allegation that the prosecution
skewed the same set of facts in two different trials in order
achieve two mutually incompatible guilty verdicts. This case
has little or no similarity with the facts of Thompson, Drake,
and Groose.
Far more instructive is the Ninth Circuit’s quite recent
decision in Shaw v. Terhune, 353 F.3d 697 (9th Cir. 2003).
The court held that imposing sentence enhancements on two
defendants for personal use of a firearm during an attempted
robbery and assault on a restaurant manager was not a

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No. 01-3613 Stumpf v. Mitchell 49
violation of due process, although the testimony clearly
indicated that only one perpetrator had held a gun to the
manager’s head. Id. at 701-02. When the first defendant,
Shaw, learned of the conviction and sentence of his
accomplice three years later, he filed a habeas petition, citing
the California Court of Appeals decision upholding Watts’s
sentence which stated: “Indeed, the evidence adduced at trial,
which presumably was available to the prosecutor prior to
trial, tends to support the conclusion that the jury in [Shaw’s]
trial was mistaken.” People v. Watts, 76 Cal. App. 4th 1250,
1259-61 (1999) (quoted in Shaw, 353 F.3d at 701) (bracket
added in Shaw).
However, the Shaw court distinguished its case from
Thompson, pointing to the fact that the prosecutor did not
manipulate evidence – the same crucial distinction that is
present in our case. Shaw, 353 F.2d at 702. Ambiguous
evidence is not false evidence; “regrettable” tactics are not
necessarily unconstitutional. Id. at 703-04. The fact of the
matter is that no one but Wesley and Stumpf know who shot
Mrs. Stout. The State is entitled to put on the available
evidence to convince the finder of fact of guilt. As long as it
does so in a good faith manner, without manipulating or
selecting out critical evidence, due process is not violated.
The Shaw court also speculated that if there were a
constitutional violation, that Watts, the second defendant,
rather than Shaw, would be the one who could argue the
point. Id. at 704, n. 5. Similarly, I could understand a court
accepting Wesley’s claim that the prosecution could not
honestly present evidence in his case that contradicted what
the government had relied upon previously (a type of
“prosecutorial estoppel”), or even that it could not present
evidence that contradicted a position it was taking elsewhere.
However, none of those theories can retroactively render
unfair the fundamentally fair proceedings that Stumpf
received.
Having indicated that I believe it is logically impossible for
Stumpf’s claim to succeed under these circumstances, I touch
50 Stumpf v. Mitchell No. 01-3613
only lightly on the court’s resolution of the question of
“whether there is a reasonable probability that the
prosecutor’s use of inconsistent, irreconcilable theories
rendered the conviction unreliable.” (Maj. Op. at 40).
Nothing that occurred in Stumpf’s proceeding rendered the
conviction unreliable. At most, the existence of Eastman’s
statement could be argued to have rendered the conviction
unreliable, but then our analysis would simply be that of any
newly discovered evidence, which proceeds against a more
difficult background and which the court does not undertake.
United States v. O’Dell, 805 F.2d 637, 640 (6th Cir. 1986)
(“Motions for anew trial based on newly discovered evidence
are disfavored.”); see, e.g., Herrera v. Collins, 506 U.S. 390,
400 (1993) (stating the rule that habeas relief is not the proper
remedy for a claim of judicial error based on newly
discovered evidence, absent some constitutional flaw in the
trial proceedings). It would indeed be bizarre if Eastman’s
statement could not undermine Stumpf’s conviction by its
own force, but introducing it into another proceeding could do
so. Following our court’s decision, a prosecutor faced with
the same dilemma in the future would be well advised not
only to eschew reliance upon such potentially contradictory
evidence in later proceedings, but presumably prevent any
other prosecutor from doing so. He or she might even be
forced deceitfully to disclaim a belief that a jury was entitled
to hear such evidence. In sum, whatever the result might be
were Wesley bringing the claim, I cannot agree to the
principle of retroactive unconstitutionality propounded in this
case.
II
With respect to Stumpf’s claim attacking his guilty plea,
the court’s opinion appears to take no notice of the benefit
that Stumpf in fact gained from pleading guilty. He first
waived a jury trial, opting to contest the charges before a
three-judge panel. He then pled guilty in return for the
prosecution dropping some charges and specifications. It is
axiomatic that acceptance of responsibility decreases the
chances that the death penalty will be imposed. The

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No. 01-3613 Stumpf v. Mitchell 51
sentencing court had three choices in sentencing Stumpf: life
without parole for twenty years; life without parole for thirty
years; and death. It made sound strategic sense for him to act
in a way that would encourage the judges to choose one of
the first two options.
Once Stumpf pled guilty, he was entitled to an evidentiary
hearing before a three-judge panel to confirm that the
evidence in the case supported his plea. Ohio Rev. Code
Ann. § 2945.06. Under one strategic view of the facts, the
panel might have been less likely than a jury to render a death
verdict because it would have grasped the legal theory behind
Stumpf’s position that, while guilty of Mrs. Stout’s murder,
he was not actually the shooter, and therefore did not deserve
the death penalty. Stumpf was arguably hoping for another
benefit, namely the dismissal of the remaining specifications
to the charges against him that made him eligible for the
death penalty. In Ohio “[i]f the indictment contains one or
more specifications, and a plea of guilty or no contest to the
charge is accepted, the court may dismiss the specifications
and impose sentence accordingly, in the interests of justice.”
Ohio R. Crim. P. 11(C)(3). Therefore, the majority is
incorrect that Stumpf received no benefit at all from pleading
guilty: he significantly improved his chances to avoid the
death penalty, although in the end his strategy did not yield
the desired result.
Despite the court’s extensive exegesis of the “confusion” at
the plea hearing itself, the events that took place at the
sentencing hearing apparently were neither a surprise nor a
disappointment, in the beginning, to the defendant or his
counsel. In fact, the defense attorney stated that the
prosecution’s rendition of the plea agreement was accurate,
(Maj. Op. at 16). No objection was made to the course of the
sentencing hearing, nor was there any effort to withdraw the
guilty plea at that point. It was only after the Eastman
statement came to light that Stumpf attempted to withdraw his
guilty plea. Similarly, at the “factual basis hearing” before
the three-judge panel the defense did not attempt to say:
“Wait a minute, we aren’t able to make an argument that we
52 Stumpf v. Mitchell No. 01-3613
thought we would be able to make at this stage.” It made the
argument. The three-judge panel heard and considered it.
They simply were not persuaded.
Finally, it is true that Stumpf denied that he actually shot
Mrs. Stout. Nevertheless, he knew that by pleading guilty, he
would only be able to argue that Wesley in fact committed the
murder as part of the mitigation phase of the proceedings.
The majority asserts that there is evidence of a “serious
misunderstanding,” (Maj. Op. at 23), between the judge and
Stumpf’s lawyers. But no one was denying that Stumpf was
involved in the murder of Mrs. Stout. His lawyers were
laying the groundwork to argue that Stumpf was not the
triggerman and therefore did not deserve the death penalty.
Stumpf would certainly be anxious to make that argument,
and it is hardly surprising that, not knowing the precise point
in the proceedings that it would be relevant, he would want to
double-check that he would have an opportunity to argue this
mitigating factor. The majority simply misinterprets
Stumpf’s caution as confusion.
Under these circumstances, it appears to me that Stumpf
understood his legal strategy, executed it according to plan,
and got exactly the opportunities that he bargained for,
making the grant of a writ of habeas corpus unwarranted.
Therefore, I respectfully dissent.

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