Billy Joe Sowell v. MARGARET BRADSHAW, Warden

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0193P (6th Cir.)
File Name: 04a0193p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BILLY JOE SOWELL,
Petitioner-Appellee,
v.
MARGARET BRADSHAW,
Warden,
Respondent-Appellant.
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No. 02-3441
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 94-00237—Edmund A. Sargus, Jr., District Judge.
Argued: October 29, 2003
Decided and Filed: June 23, 2004
Before: BATCHELDER, MOORE, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Michael L. Collyer, OFFICE OF THE
ATTORNEY GENERAL OF OHIO, Cleveland, Ohio, for
Appellant. Mark A. Vander Laan, DINSMORE & SHOHL,
Cincinnati, Ohio, for Appellee. ON BRIEF: Michael L.
2 Sowell v. Bradshaw No. 02-3441
Collyer, OFFICE OF THE ATTORNEY GENERAL OF
OHIO, Cleveland, Ohio, Charles L. Wille, OFFICE OF THE
ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for
Appellant. Mark A. Vander Laan, Christopher R. McDowell,
DINSMORE & SHOHL, Cincinnati, Ohio, Randall L. Porter,
OFFICE OF THE OHIO PUBLIC DEFENDER, Columbus,
Ohio, for Appellee.
ROGERS, J., delivered the opinion of the court, in which
BATCHELDER, J., joined. MOORE, J. (pp. 31-36),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
ROGERS, Circuit Judge. The state of Ohio indicted
Petitioner Billy Joe Sowell for murder, with a stipulation that
he could receive the death penalty. Relying on advice of his
counsel, Sowell opted to be tried by a three-judge panel rather
than by a 12-member jury. Sowell’s counsel was confident
that one of the three judges on the panel would refuse to
recommend death. The panel nevertheless imposed the death
penalty, and Sowell’s direct and collateral appeals through the
Ohio courts were unsuccessful. On federal habeas review,
however, the district court granted a writ of habeas corpus,
finding that Sowell’s jury waiver was not knowing and
intelligent, and that his counsel was ineffective. We reverse
the district court’s grant of a writ of habeas corpus to Sowell
because he has not demonstrated that his jury waiver was not
knowing and intelligent or that his counsel was ineffective.
FACTS AND PROCEDUR AL HISTORY
As the facts that underlie Sowell’s death penalty are not in
controversy, we rely on the Ohio Court of Appeals’s version:

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No. 02-3441 Sowell v. Bradshaw 3
The record discloses that [Sowell] and [Calvert]
Graham resided in adjacent apartments on the third floor
of an apartment building in downtown Cincinnati.
[Sowell] was the resident manager of the building and
became acquainted with Graham, who performed
occasional odd jobs at the apartment building. After
Graham became a resident in [Sowell’s] apartment
building, the two men developed a friendly relationship
and visited one another in their respective residences.
On May 1, 1983, three days prior to the instant
offenses, [Sowell] was a guest in Graham’s apartment.
Also present were Donna Edwards (Edwards), a woman
with whom Graham shared the apartment, and [Pam]
Billups [a former prostitute who had been visiting
Graham and Edwards]. Graham offered two marijuana
cigarettes to [Sowell], which he accepted. Thereafter
[Sowell] left the apartment in the company of Billups and
proceeded to a nearby restaurant where he purchased
dinner for her. En route to the restaurant, [Sowell]
smoked the second marijuana cigarette, having consumed
the first at Graham’s residence. Thereafter the pair made
their way to a hotel where [Sowell] rented a room. There
was conflicting testimony concerning the events that
transpired thereafter. However, it is not disputed that
[Sowell] eventually lost consciousness, having consumed
an unspecified quantity of wine during the evening in
addition to the marijuana. The next morning [Sowell]
made his way back to his residence, stopping along his
route to obtain breakfast for Billups.
[Sowell] next encountered Billups on the afternoon of
May 4, 1983. Billups was in the company of Edwards
and the trio passed in the doorway of a store but did not
acknowledge one another. As will be seen, this
seemingly inconsequential meeting gained significance
later in the day.
That evening [Sowell] returned to his apartment
building after, according to his testimony, visiting no less
than five taverns and consuming at least one double shot
of vodka at each stop. Upon returning to his apartment
4 Sowell v. Bradshaw No. 02-3441
building [Sowell] realized that he was not in the mood to
retire for the evening, and instead presented himself at
Graham’s apartment. Graham greeted [Sowell] and
invited him inside, where Edwards and Billups were also
present. Graham produced a marijuana cigarette which
was consumed by all four occupants.
[Sowell] testified before the trial court that following
the consumption of the marijuana, he fell asleep for a
short time. When he awoke the others were still present
and [Sowell] discovered that approximately $190 had
been removed from his trouser pocket. At first [Sowell]
thought that the trio was playing a joke upon him;
however, his requests for the return of his money
received no response. [Sowell] further testified that
Graham then picked up a knife and ordered [Sowell] to
leave the residence. [Sowell] complied and departed, but
he was extremely angry as a result of his loss.
Both Billups and Edwards told the trial court that
[Sowell’s] visit to the apartment on the day in question
was at first friendly. However, [Sowell] soon became
agitated and accused Billups of being unsociable in that
she did not speak to him earlier that afternoon. [Sowell]
also accused Billups of stealing $24 from him during
their encounter three days earlier. When [Sowell]
referred to Billups in terms meant to insult her pedigree,
Graham ordered [Sowell] to leave the premises. [Sowell]
left, stating that he was going to obtain his gun, return
and shoot Billups.
[Sowell] went directly to his apartment where he
directed his common-law wife, Lenora Waugh (Waugh),
to bring his gun to him. Waugh complied with that
request, as well as with [Sowell’s] instructions to
accompany him to Graham’s apartment. Upon returning
to Graham’s door, Waugh, at [Sowell’s] instruction,
knocked and indicated to those inside that she was a
woman named Portia. Graham responded to the door
and opened it. Edwards and Billups testified, and the
trial court found, that [Sowell] forced his way into the
apartment, firing a bullet from his handgun into the

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No. 02-3441 Sowell v. Bradshaw 5
ceiling as he entered. [Sowell] demanded to know
Billups’s whereabouts and threatened to shoot her.
Graham was able to calm [Sowell] and began to escort
him from the apartment and to close the door, whereupon
[Sowell] suddenly turned and shot Graham in the
abdomen. As Graham fell, [Sowell] fired a second shot
into Graham’s skull. Graham fell to the floor, mortally
wounded.
[Sowell] next made his way to the closet in which
Billups was cowering, and fired three bullets into her
body. [Sowell] next placed the gun to Billups’s forehead
and pulled the trigger. However, the gun did not expel a
bullet because it no longer contained ammunition.
[Sowell] left the apartment after warning Edwards not to
leave the premises or he would shoot her also. [Sowell]
returned to his apartment, obtained money and made his
way to a nearby tavern where he was apprehended by the
police.
[Sowell] testified regarding the shootings and told the
court that he returned to Graham’s apartment to demand
his money and that he was confronted by Graham, who
was armed with a knife. [Sowell] stated that it was only
after Graham made a furtive movement that [Sowell]
began shooting at Graham, and that one of the bullets
struck the ceiling. [Sowell] explained his conduct as
follows: “It just, I just clocked out. When I seen that
person going this way I just pivoted, I pivoted on my
gun, I was shooting, I was angry, I started shooting, I just
started shooting everybody I seen.”
Ohio v. Sowell, No. C-830835, 1986 WL 9082, at *1–*2
(Ohio Ct. App. Aug. 20, 1986) (footnotes omitted); see
also Ohio v. Sowell, 530 N.E.2d 1294, 1297–98 (Ohio 1988).
The Trial Court Proceeding
On May 26, 1983, a Hamilton County grand jury indicted
Sowell on one count of aggravated murder in violation of
Ohio Revised Code (“O.R.C.”) § 2903.01(A), and one count
6 Sowell v. Bradshaw No. 02-3441
1Fox v. Coyle, 271 F.3d 658, 664 –65 (6th C ir. 200 1), briefly
summ arizes O hio’s capital sentencing system.
In common with other states that employ the death pena lty,
Ohio uses a weighing method to determine whether an
individual charged with a capital offense receives the death
penalty. An ind ividual beco mes eligible for the death penalty
only if one or more of a series of statutory aggravating
circumstances “is specified in the indictment . . . and proved
beyond a reasonable doubt.” [O .R.C.] § 29 29.0 4(A). . . . Once
an individual has been found guilty of a capital offense, a jury or
three-judge pane l must determine whether the presence of one
or more of the nine statutory aggravating circumstances listed at
[O.R .C.] § 2929.0 4(A) outweighs the mitigating circumstances
presented by the defendant. The three-judge panel [or jury is
then] required to “weigh against the aggravating circumstance
proved beyond a reasonable doubt, the nature and circumstances
of the offense, the history, character, and background of the
offender, and all of the following factors [listing factors such as
age, mental disease , and p rovo cation].” [O.R.C.] § 2929 .04(B).
In weighing the aggravating circumstances against the mitigating
factors, the
court, and the trial jury if the offender was tried by a
jury, [1] shall consid er . . . any evidence raised at trial
that is relevant to the aggravating circumstances the
offender was found guilty of committing or to any
factors in mitigation of the imposition of the sentence
of death, [2] shall hear testimony and other evidence
that is relevant to the nature and circumstances o f the
of attempted murder in violation of O.R.C. §§ 2903.01(A)
and 2923.02(A). The aggravated murder count contained a
capital specification alleging that the aggravated murder was
part of a course of conduct involving the aggravated murder
of one person and the attempt to murder another. See O.R.C.
§ 2929.04(A)(5) (“Imposition of the death penalty for
aggravated murder is precluded, unless . . . the following is
specified in the indictment . . . and proved beyond a
reasonable doubt: . . . the offense at bar was part of a course
of conduct involving the purposeful killing of or attempt to
kill two or more persons by the offender.”).1

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No. 02-3441 Sowell v. Bradshaw 7
aggravating circumstances the offender was found
guilty of committing, the mitigating factors set forth in
division (B) of section 2929.0 4 of the Revised Code,
and any other factors in mitigation of the imposition of
the sentence of death, and [3 ] shall hea r the statem ent,
if any, of the offender, and the arguments, if any, of
counsel for the defense and prosecution, that are
relevant to the penalty that should be imposed on the
offend er.
[O.R .C.] § 29 29.0 3(D )(1). Finally, if the court or three-judge
panel impo ses the sentence of death, it must sp ecify in a separate
opinion the aggravating and mitigating circum stances found to
be present as well as “the reasons why the aggravating
circumstances the offender was found guilty of committing were
sufficient to outweigh the mitigating factors.” [O.R.C.]
§ 29 29.0 3(F).
On October 14, 1983, Sowell appeared before the trial
judge, Judge Crush. Sowell waived his right to a jury trial
and asked to be tried by a three-judge panel, as Ohio’s capital
scheme allows. See O.R.C. § 2945.06. Trial began on
October 18, and on October 20 the panel unanimously found
Sowell guilty of all charges, including the capital
specification. The sentencing phase (also called the
“mitigation phase”) was held on November 2, and, on the
following day, the panel sentenced Sowell to death on the
aggravated murder count and 7 to 25 years on the attempted
murder count.
The Direct Appeal
Sowell appealed to the Ohio Court of Appeals, which
affirmed the conviction and sentence on August 20, 1986.
Sowell, 1986 WL 9082. The Supreme Court of Ohio
similarly affirmed, on November 16, 1988, see Sowell, 530
N.E.2d 1294; and the U.S. Supreme Court denied certiorari,
see Sowell v. Ohio, 490 U.S. 1096 (1989). This ended
Sowell’s direct appeal. Thus far, Sowell had not complained
that his waiver of jury trial had been invalid.
8 Sowell v. Bradshaw No. 02-3441
The State Post-Conviction Proceedings
On December 20, 1989, Sowell filed in the Hamilton
County Court of Common Pleas a post-conviction petition
that raised 41 claims for relief, the 29th of which argued that
Sowell’s jury waiver was not knowing, voluntary, and
intelligent. His sole support for this claim was an affidavit
attached to the petition, in which he averred that he had
waived his right to a jury trial only because his counsel had
assured him that he would not receive a death sentence if he
went with a three-judge panel. Specifically he stated, “I
would not have waived my right to a trial by jury if my
counsel had not informed me that such a waiver would mean
that my life would be spared.” J.A. at 262. Though the trial
court could have found that he had procedurally defaulted on
this claim because he could have raised it on direct appeal,
see Ohio v. Cole, 443 N.E.2d 169, 170–71 (Ohio 1982)
(setting out Ohio’s rules for raising new claims on post-
conviction appeal), the court instead found a more indirect
default by holding that Sowell’s “self serving” affidavit was
insufficient to rebut the presumption of validity established by
his and his attorney’s on-the-record assurances to the trial
court that the waiver was knowing and intelligent. Overall,
the court granted summary judgment to the state.
With respect to his jury trial waiver, Sowell appealed to the
Ohio Court of Appeals and argued that he was entitled to
relief because “he was promised a life sentence by his trial
attorneys if he waived his right to a jury trial.” J.A. at 340.
In a new claim, he further argued that
trial counsel was ineffective due to their waiving a jury
trial without adequately assuming that Appellant’s life
would be spared. A jury should only be waived if
counsel has received sufficient assurances that a three
judge panel will in fact spare the accused’s life. To try
the case without sufficient assurances does not meet the
prevailing standards of practice for capital defense
attorneys.

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No. 02-3441 Sowell v. Bradshaw 9
2In Ohio v. Murnahan, 584 N.E.2d 1204 (O hio 1992)— a case
handed down a couple of months before Sowell filed his federal habeas
petition— the Supreme Court of Ohio considered whether a defendant
could complain o f ineffective assistance of appellate counsel in state
post-conviction proceed ings und er the state’s post-conviction appeal
statute, O.R.C. § 295 3.21. The court held that defendants cannot do this,
and instead must file a motion for delayed reconsideration with the
appellate court in which the alleged error took place. See 584 N.E.2d at
120 9. Notably, the procedure required by Murnahan was the procedure
that had been required since at least 1983 by the Ohio Court of Appeals
in Hamilton County, where Sowell’s trial and appeal were conducted. See
Oh io v. Rone, No. C-820640, 1983 WL 5172, at *4 (Ohio Ct. App. Aug.
31, 1983 ).
J.A. at 341 (citations omitted). The Ohio Court of Appeals
agreed with the trial court that Sowell’s affidavit was not
enough to rebut the presumption established by Sowell’s
representations to the original trial court that his waiver was
knowing and valid. Ohio v. Sowell, 598 N.E.2d 136, 143
(Ohio Ct. App. 1991). The Ohio Court of Appeals did not
address Sowell’s current ineffective assistance argument,
apparently finding that it was procedurally defaulted. See id.
at 142. Sowell’s subsequent appeal to the Supreme Court of
Ohio, which appeal again raised the jury waiver issue, was
dismissed for lack of jurisdiction. Ohio v. Sowell, 579 N.E.2d
1394 (Ohio 1991).
The Initial Federal Habeas Petition, and the Murnahan
Application
Sowell filed a federal habeas petition in April of 1992, but
the district court dismissed the petition without prejudice for
lack of exhaustion, finding that Sowell could perhaps raise his
ineffective assistance of appellate counsel claims via the
Supreme Court of Ohio’s newly-created Murnahan
application procedure.2 However, the Ohio courts denied his
Murnahan motions. Ohio v. Sowell, 622 N.E.2d 649 (Ohio
1993).
10 Sowell v. Bradshaw No. 02-3441
The Present Federal Habeas Petition
Sowell renewed his federal habeas petition on May 24,
1994, raising 52 claims. Only two of these claims are
involved in the present appeal. They are as follows:
Fifth Ground for Relief. The action of trial counsel
deprived Petitioner Sowell his right to the effective
assistance of counsel during the trial phase of his case in
violation of the Fifth, Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
. . . .
Thirty-Fourth Ground for Relief. Petitioner Sowell’s
waiver of a jury trial which was not knowingly,
intelligently and voluntarily entered violated his rights as
guaranteed by the Sixth, Eighth and Fourteenth
Amendments to the United States Constitution.
J.A. at 95, 157. Sowell’s Fifth Claim asserted that counsel
had not received sufficient assurances that a jury waiver
would avoid the death penalty, and the Thirty-Fourth Claim
asserted that Sowell’s waiver of a jury trial was
constitutionally inadequate.
For the next five years, the parties litigated various issues,
including discovery, expansion of the record, merits briefing,
and whether Sowell should be granted an evidentiary hearing.
In 1994 the Warden sought to have 31 of Sowell’s
claims—including the Thirty-Fourth claim but not the
Fifth—dismissed due to procedural default. On February 18,
1998, the district court issued an Opinion and Order finding
that six of the claims were defaulted, but that the Thirty-
Fourth claim was not. The following month, on March 10,
Sowell filed a motion for an evidentiary hearing on various of
his claims, including the Fifth Ground but not the Thirty-
Fourth. Earlier, on January 27, 1998, Sowell had filed a
traverse that requested an evidentiary hearing on the Thirty-
Fourth claim. On September 29 of the same year, the district
court issued an Opinion and Order that granted an evidentiary

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No. 02-3441 Sowell v. Bradshaw 11
3Pinales testified that his “impression of the overview of what
occurred” was that Pinales “got the feeling in the discussions with Judge
Crush that if a jury was waived, this would not be a capital case.” J.A. at
525.
hearing for the Fifth and the Thirty-Fourth claims on the
grounds that the state court’s post-conviction findings “were
inadequate to resolve the factual dispute of whether
petitioner’s jury waiver was induced by erroneous assurances
on the part of his trial attorneys . . . .” J.A. at 427. The court
also allowed Sowell to expand the record by including an
affidavit from Martin Pinales, one of his two trial attorneys,
on the jury waiver issue. This was the second expansion of
the record granted by the court regarding the jury waiver
issue, since earlier in the litigation the court had allowed
Sowell to add to the record the correspondence between
Pinales and post-conviction counsel on this issue.
The district court conducted an evidentiary hearing on
April 21, 1999, at which Sowell presented four witnesses:
Pinales, Sowell, Dr. Gelbort (a neuropsychologist), and
Donald Schumacher (an “attorney-expert”). At this hearing,
Pinales testified to his belief that Sowell’s life would be
spared by a three-judge panel because of inferences from his
discussion with Judge Crush at a pretrial conference.3 Pinales
admitted that he strongly suggested to Sowell that he choose
the three-judge panel to avoid the death penalty. Sowell
testified that he “had faith and conviction and belief in [his]
attorney” and he “thought that [he] wasn’t going to get the
death penalty” by waiving the jury. J.A. at 573. Dr. Gelbort
opined that Sowell’s ability to reason, ponder and project into
the future were in the bottom two percent of the population.
Schumacher stated that Pinales’ counseling of Sowell—a
client with abnormally low intelligence—was deficient
because the “downside” of the choice was not explained by
counsel or in the waiver colloquy with the court.
12 Sowell v. Bradshaw No. 02-3441
4All citations to § 2254 in this opinion refer to the pre-AEDPA
version.
On October 5, 2001, the district court partially granted a
conditional writ of habeas corpus, finding that Sowell had
properly waived his right to a jury in relation to the guilt
phase of his trial, but not the sentencing phase. The court left
undisturbed Sowell’s 7- to 25-year sentence for attempted
murder, and gave Ohio the option of retrying Sowell entirely,
or of leaving the conviction in place and imposing any
sentence Ohio law permits, other than death. The court did
not address Sowell’s other grounds for relief. The Warden
filed a motion to alter or amend, which the court denied, and
a motion to stay, which the court granted. The Warden,
currently Margaret Bradshaw, now appeals.
DISCUSSION
Since Sowell filed his habeas petition prior to 1996, pre-
AEDPA standards apply. Powell v. Collins, 332 F.3d 376,
388 (6th Cir. 2003). Under those standards, we review de
novo a district court’s legal conclusions in granting a writ of
habeas corpus, and for clear error the district court’s factual
findings. Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir.
2000). The writ of habeas corpus may only issue if the state
court proceedings were fundamentally unfair as a result of a
“violation of the Constitution or laws or treaties of the United
States.” See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502
U.S. 62, 67–68 (1991). The state court’s factual findings are
entitled to a presumption of correctness, which is rebuttable
only by convincing evidence. 28 U.S.C. § 2254(d) (now
repealed)4; McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th
Cir. 1996). This presumption only applies to basic, primary,
or historical facts, and to “implicit findings of fact, logically
deduced because of the trial court’s ability to adjudge the
witnesses’ demeanor and credibility.” McQueen, 99 F.3d at
1310. The presumption does not apply to mixed questions of
law and fact, or questions of law, both of which are reviewed

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No. 02-3441 Sowell v. Bradshaw 13
de novo. Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir.
2001).
I. Procedural Default
A. Abandonment of the Jury Waiver Claim in Sowell’s
Post-Conviction Appeal
Contrary to the Warden’s argument, Sowell did not
“abandon” his ineffective-jury-waiver claim in his post-
conviction appeal. Sowell first raised the jury waiver issue in
his post-conviction proceedings before the Ohio trial court as
his twenty-ninth cause of action, arguing that “Petitioner
Sowell’s waiver of a jury trial was not a knowing and
intelligent waiver of his right to a jury trial” because
“Petitioner was advised by his counsel that if he waived his
jury trial, he would not receive the death penalty.” J.A. at
244–45. He raised this argument again before the Ohio Court
of Appeals. And on appeal to the Supreme Court of Ohio, he
raised it again, this time with a little more legal argument.
B. Presentation of Jury Waiver Claim on Grounds Other
Than Those Presented to the State Court
Sowell argued to the state courts that his waiver was not
knowing because he acted in reliance on his counsel’s
erroneous assurances, but he did not argue, as he does now,
that his waiver was not knowing because he did not
understand what he was giving up, due to the trial judge’s and
Sowell’s attorney’s failure to warn him adequately of the
dangers of his choice, and due to his own mental deficiencies.
Nevertheless, the district court considered these latter
grounds. The Warden contends that this was error, and
argues that the court should have found these grounds
procedurally defaulted. Consequently, the Warden argues,
the issue-as-presently-framed is distinct from that presented
to the state courts, and it is hence procedurally defaulted.
14 Sowell v. Bradshaw No. 02-3441
The legal ground underlying this argument is the principle
that “the doctrine of exhaustion requires that a claim be
presented to the state courts under the same theory in which
it is later presented in federal court.” Wong v. Money, 142
F.3d 313, 322 (6th Cir. 1998); but see Prather v. Rees, 822
F.2d 1418, 1421 (6th Cir. 1987) (“[I]f the difference is merely
a variation in the legal theory, rather than a different legal
claim, [then the petitioner] has exhausted his claim.”). In
Wong, the petitioner had argued to the state courts that her
counsel was ineffective for failing to present an insanity
defense, but on appeal she attempted to argue in addition that
her counsel was ineffective for prematurely abandoning the
search for an expert who would say she was insane, even
though two experts had already found that she was not insane.
Wong, 142 F.3d at 319-22. The panel found that the latter
claim advanced a new theory, and was procedurally defaulted.
Id. at 321-22.
It is not necessary for us to determine whether Sowell has
raised a different legal claim here, or merely presents a
variation in legal theory, because we are persuaded that the
Warden, by advising the district court that she would not
object to the testimony of Dr. Gelbort that supported the
claim, has waived her right to object.
C. Failure to Attach Sufficient Documentation to Support
Sowell’s Jury Waiver and Ineffective Assistance
Claims When He Raised Them in State Post-
Conviction Proceedings
The Warden’s final default argument fails because she did
not raise it below. The Warden contends that Sowell
defaulted both of the claims relevant to this appeal by failing
to satisfy Ohio’s requirement that a petitioner in a post-
conviction proceeding produce more than a self-serving
affidavit to rebut the presumption that a proceeding on the
record was somehow invalid. See Ohio v. Kapper, 448
N.E.2d 823, 826 (Ohio 1983) (“[A] petition for
post-conviction relief is subject to dismissal without a hearing

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No. 02-3441 Sowell v. Bradshaw 15
when the record . . . indicates that the petitioner is not entitled
to relief and that the petitioner failed to submit evidentiary
documents containing sufficient operative facts to
demonstrate that the guilty plea was coerced or induced by
false promises.”). The Ohio courts rejected Sowell’s claim
for this reason. See J.A. at 318; Ohio v. Sowell, 598 N.E.2d
136, 143 (Ohio Ct. App. 1991). The Sixth Circuit has
recognized Ohio courts’ dismissal for failure to provide
documentation as a sufficient basis for finding a procedural
default. See Lorraine v. Coyle, 291 F.3d 416, 426 (6th Cir.
2002) (finding that the failure to attach documentation can
result in a procedural default).
However, the Warden did not make this argument to the
district court. The Warden concedes that the failure to raise
the issue before the district court may mean that the argument
is forfeited. Procedural default is a defense “that the State is
obligated to raise and preserv[e] if it is not to lose the right to
assert the defense thereafter.” Trest v. Cain, 522 U.S. 87, 89
(1997) (internal quotation marks omitted). Further,
procedural default is not a jurisdictional matter, and “[a] court
of appeals is not ‘required’ to raise the issue of procedural
default sua sponte.” Id. Nonetheless, this court may consider
a newly-raised default argument, if it so wishes. See, e.g.,
Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000)
(“While procedural default is not a jurisdictional bar to review
of such a claim, and the Government’s failure to raise the
default may operate as a forfeiture of its right to defend on
that ground, we nonetheless may raise these issues sua
sponte.” (citations omitted)). In light of the resources that
have been expended by the district court and the serious
consequences facing Sowell, and because the Warden did not
make this argument to the district court, we exercise our
discretion not to reach the documentation-default issue.
II. Expansion of the Record and Evidentiary Hearing
Notwithstanding the Warden’s additional argument, the
district court, under our precedent, had the authority to
16 Sowell v. Bradshaw No. 02-3441
conduct a hearing on the claims that were the basis of the
district court’s judgment. The district court held that the state
court’s finding “is subject to review and an evidentiary
hearing in this Court under 28 U.S.C. §§ 2254(d)(2) and
(d)(3).” J.A. 426–27. The district court concluded that
because Sowell was not attempting to present evidence that
was not presented, at least in some fashion, to the Ohio
courts, cause and prejudice was not required.
The Warden challenges that decision by the district court,
arguing that Sowell needed to demonstrate cause and
prejudice or a fundamental miscarriage of justice before the
district court could hold an evidentiary hearing. However, in
Abdur’Rahman v. Bell, 226 F.3d 696 (6th Cir. 2000), we
explained that even though the cause and prejudice
requirement had to be met for petitioner to be entitled to a
hearing, the district court nonetheless has inherent authority
to hold an evidentiary hearing even if petitioner is not entitled
to one. Abdur’Rahman, 226 F.3d at 706 (“Because the
district court properly ordered an evidentiary hearing pursuant
to its inherent authority to do so, the issue of whether
Petitioner is entitled to an evidentiary hearing [via a showing
of cause and prejudice] is irrelevant and will not be
addressed.”). It was therefore not error for the district court
to exercise its inherent power to hold an evidentiary hearing,
without undertaking a cause and prejudice analysis.
III. Knowing and Intelligent Waiver
Reaching now the merits, we conclude that Sowell has
failed to present enough evidence to rebut the presumption of
a knowing and intelligent jury waiver. We review de novo
the largely legal question of whether a petitioner’s waiver of
a jury trial was knowing, intelligent, and voluntary. Lott v.
Coyle, 261 F.3d 594, 610 (6th Cir. 2001)
To find a constitutional error, the district court merged the
validity of the waiver with the question of ineffective
assistance of counsel. The district court found that

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No. 02-3441 Sowell v. Bradshaw 17
[s]ince the Constitution does not require an on-the-record
colloquy, and because the validity of a jury waiver is to
be determined from the totality of the circumstances, the
conduct of a defendant’s attorney must also be
considered. In other words, counsel has a duty, along
with the trial court, to ensure that the defendant
understands the nature of the right and the consequences
of waiving the right. Counsel’s recommendation to
waive trial by jury does not amount to constitutional
ineffectiveness if the recommendation was reasonable
trial strategy.
Sowell v. Anderson, No. C-1-94-237, 2001 WL 1681142, at
*15 (S.D. Ohio Oct. 5, 2001); see also id. (“The duty to
ensure that a criminal defendant’s jury trial waiver is knowing
and intelligent rests primarily with the trial court, but is also
shared by counsel.”). The district court cited no legal
precedent to support its commingling of the doctrines, and
this court has found none. Therefore, we decline to follow the
mixing approach, and instead consider each claim separately
on the merits.
The only issue with regard to whether Sowell waived his
jury right is whether he “intelligently consented.” According
to the Supreme Court, “the right to jury trial in serious
criminal cases is a fundamental right and hence must be
recognized by the States as part of their obligation to extend
due process of law to all persons within their jurisdiction.”
Duncan v. Louisiana, 391 U.S. 145, 154 (1968). Although
under the common law, defendants were not allowed to waive
this right, the Supreme Court has held that defendants can do
so, under certain conditions:
Not only must the right of the accused to a trial by a
constitutional jury be jealously preserved, but the
maintenance of the jury as a fact finding body in criminal
cases is of such importance and has such a place in our
traditions, that, before any waiver can become effective,
the consent of government counsel and the sanction of
18 Sowell v. Bradshaw No. 02-3441
the court must be had, in addition to the express and
intelligent consent of the defendant. And the duty of the
trial court in that regard is not to be discharged as a mere
matter of rote, but with sound and advised discretion,
with an eye to avoid unreasonable or undue departures
from that mode of trial or from any of the essential
elements thereof, and with a caution increasing in degree
as the offenses dealt with increase in gravity.
Patton v. United States, 281 U.S. 276, 312–13 (1930)
(emphasis added). Federal Rule of Criminal Procedure 23(a)
accordingly provides that cases in which a defendant is
entitled to a jury trial shall be so tried unless the defendant
waives a jury trial in writing with the approval of the court
and the consent of the government. It is undisputed that
Sowell signed such a written waiver. See J.A. 730-32. As all
of the other formal aspects of a jury waiver were complied
with as well, the intelligent consent of Sowell is the sole
component of a jury waiver that is at issue in the present case.
The district court in this case imposed requirements on the
jury waiver procedures that are not constitutionally required.
“Compliance with the requirements of [Federal Rule of
Criminal Procedure 23(a)] creates a presumption that the
waiver is a voluntary, knowing and intelligent one.” United
States v. Cochran, 770 F.2d 850, 851 (9th Cir. 1985); see also
United States v. Sammons, 918 F.2d 592, 597 (6th Cir. 1990).
Although we will not presume waiver from a silent record, the
burden of demonstrating that a waiver of jury trial was not
valid lies with the defendant who waived it. The Supreme
Court has expressly held that:
a determination of guilt by a court after waiver of jury
trial could not be set aside and a new trial ordered except
upon a plain showing that such waiver was not freely and
intelligently made. If the result of the adjudicatory
process is not to be set at naught, it is not asking too
much that the burden of showing essential unfairness be
sustained by him who claims such injustice and seeks to

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No. 02-3441 Sowell v. Bradshaw 19
5W e nonetheless strongly recommended such a colloquy, and
continue to do so.
have the result set aside, and that it be sustained not as a
matter of speculation but as a demonstrable reality.
Adams v. United States ex rel. McCann, 317 U.S. 269, 281
(1942).
This court in United States v. Martin, 704 F.2d 267 (6th
Cir. 1983), identified in dicta some specific aspects of a jury
trial about which a defendant should have at least some
knowledge before waiving a jury trial. The court observed
that
a defendant ignorant of the nature of the jury trial right
cannot intelligently weigh the value of the safeguard. A
defendant, therefore, should have both the mental ability
and some knowledge of the jury trial right before he is
allowed to waive it. A technical knowledge of the jury
trial right, however, is not what is required. A defendant
is sufficiently informed to make an intelligent waiver if
he was aware that a jury is composed of 12 members of
the community, he may participate in the selection of the
jurors, the verdict of the jury must be unanimous, and
that a judge alone will decide guilt or innocence should
he waive his jury trial right. Knowledge of these
essential attributes is generally sufficient to enable a
defendant to make a knowing and intelligent decision.
Martin, 704 F.2d at 273 (citations omitted). In Martin,
however, the court explicitly stated that there is no
constitutional requirement for the trial court to conduct a
colloquy with the defendant prior to a jury waiver. Id. at 274-
75.5
In Sammons, this court considered the Martin passage and
expressly stated that the elements of a knowing jury waiver
20 Sowell v. Bradshaw No. 02-3441
outlined therein are not constitutionally required. See
Sammons, 918 F.2d at 597. Specifically, the Sammons court
stated:
The statement that this knowledge is sufficient is not, of
course, equivalent to a statement that it is constitutionally
required. In fact, the Seventh Circuit has held that a
defendant who “understood that the choice confronting
him was, on the one hand, to be judged by a group of
people from the community, and on the other hand, to
have his guilt or innocence determined by a judge” had
knowingly and intelligently waived his right to trial by
jury.
Id. (emphasis in original). The court went on to hold that
“[w]hile the district court failed to conduct the suggested
colloquy in this action, the record does not disclose any
evidence that Sammons was so unaware of the rudimentary
elements of trial by jury that his waiver cannot stand.” Id.
The district court erred in treating the dicta in Martin as
setting forth a statement of constitutional law. See Sowell,
2001 WL 1681142, at *15. (“The Sixth Circuit has held that
in order for a jury waiver to be knowing and intelligent as a
matter of constitutional law, the record must reflect at a bare
minimum the following understandings on the part of the
defendant: that the jury is composed of twelve members of
the community, that the defendant may participate in the
selection of the twelve jurors, that any verdict rendered by the
jury must be unanimous, and that a judge alone will decide
guilt or innocence if a jury trial is waived.” (emphasis
added)). The district court added that “[b]oth Sammons and
Martin require that a defendant be aware of and understand
that any verdict returned by a jury must be unanimous.” Id.
Sammons does not support that proposition. Rather, the
Sammons court merely quoted Martin’s “unanimous”
requirement, and then stated that Martin was not necessarily
establishing constitutional requirements. See Sammons, 918
F.2d at 597. Contrary to the district court’s decision, neither

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No. 02-3441 Sowell v. Bradshaw 21
6The colloquy included the following discussion:
THE COURT: All right, Mr. Sow ell, I have been told by your
attorne ys that you wish to give up your right to trial by jury in
this case, is that correct?
SOW ELL: Yes, sir.
THE COU RT: You discussed this at length with your attorneys?
SOW ELL: Yes, sir.
THE CO URT: And any remaining questions unanswered?
SOW ELL: No , sir.
THE COURT : All right now, do you understand that both the
Constitution of the United States and the Constitution of the
State of Ohio gives [sic] you [an] absolute right to a trial by jury
if you wish it, do you understand that?
SOW ELL: Yes, sir.
THE CO UR T: A nd do you understand that a jury w ould consist
of 12 people?
SOW ELL: Yes, sir.
TH E COU RT : Twelve of your peers, do you understand that?
SOW ELL: Yes, sir.
THE COURT: And you understand that before a jury could find
you guilty of the charge against you or any other charge, they
would have to agree unanim ously. T hat means that all 12 would
have to agree, you understand that?
SOW ELL: Yes, sir.
THE COU RT: Now if you are tried by a three-judge panel you
understand that before those three judges could find you guilty
of anything, whether it is the crime you are charged with or
some lesser included charge, all three of them would have to
agree, they could no t convict you unless they unanimo usly
agreed, do you understand that?
SOW ELL: Yes, sir.
THE CO UR T: Bu t it would be three people, not 12 deciding
your guilt or inno cence, do you understand that?
case established a constitutional requirement that the
defendant understand that the verdict must be unanimous.
In applying the law, as the district court saw it, to the facts,
the court found several deficiencies in Sowell’s waiver. The
first alleged “deficiencies” relate to what was and, more
importantly, what was not contained in the colloquy between
the trial court and Sowell regarding his waiver of a jury trial.6
22 Sowell v. Bradshaw No. 02-3441
SOW ELL: Yes, sir.
THE COU RT: N ow do you understand that in the running of the
case I have some other things here I may not be required to tell
you, but I will tell you so you understand it. That in a general
running of the case the deciding of motions such as you have in
this case deciding of anything other than your guilt or innocence
then two of the three judges can decid e that. That does not have
to be unanim ous, do you understand that?
SOW ELL: Yes, sir.
THE COU RT: And of course do you understand that, of course,
before the maximum penalty could be before – Okay, do you
understand that the judges to sit with this Court, that is the other
two judges will be selected by the presiding Judge. I am not the
presiding Judge of the Common Pleas Court, but that presiding
Judge of the Common Pleas Court will decide who the other two
judges will be?
SOW ELL: Yes, sir.
THE COURT: Do you understand that your attorneys cannot
control that nor can you?
SOW ELL: Yes, sir.
THE COURT: Any other right you can think of I should discuss
with him.
PROSECUTOR: I believe you pretty well covered it, Your
Hono r.
J.A. at 728-30.
The district court found the trial court’s colloquy first lacked
an inquiry as to whether Sowell “understood that he had the
right to participate in the selection of jurors.” Sowell, 2001
WL 1681142, at *16. This inquiry is recommended by
Martin. Martin, 704 F.2d at 273. However, as described
above, neither Sammons nor Martin mandated that a colloquy
discussing the defendant’s understanding of his role in
selecting a jury was a constitutional requirement for jury
waiver. Martin, 704 F.2d at 274-75; Sammons, 918 F.2d at
597. Consequently, the trial judge did not commit
constitutional error by failing to include this question in the
colloquy.
The district court was also disturbed that the trial court
failed to ask Sowell during the colloquy if he understood that

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No. 02-3441 Sowell v. Bradshaw 23
the jury would decide whether or not to recommend a death
sentence and that such a decision by the jury must be
unanimous. Sowell, 2001 WL 1681142, at *16-*17. The
district court also found the colloquy insufficient because the
trial court did not ask Sowell if anyone promised or induced
him to waive his right to a jury trial or if he understood that
a jury waiver would still leave him eligible a death sentence.
Id. Martin does not list these alleged deficiencies in its
passage recounting aspects of a generally sufficient colloquy,
Martin, 704 F.2d at 273, and there is no basis for concluding
that it was constitutional error for the trial court not to
conduct inquiries on these specific issues.
The district court found that the sum of all of these
deficiencies “demonstrate[d] that petitioner’s waiver of his
right to a jury trial was not knowingly made.” Sowell, 2001
WL 1681142, at *17. However, the Martin court clearly held
that colloquies are not constitutionally required and that an
extremely perfunctory waiver with no colloquy was
constitutionally adequate. Martin, 704 F.2d at 274-75.
Further, although capital cases do require a more extensive
colloquy than other types of cases, the simple fact that the
case is capital does not mandate an exhaustive colloquy. See
Lott, 261 F.3d at 614–15 (finding—in a capital case—that a
colloquy much more perfunctory than that in the present case
was constitutionally sufficient). Thus, the cumulative effect
of these alleged colloquy deficiencies does not require a
finding that Sowell’s waiver was not intelligent.
Another deficiency that the district court found involved
“the virtual absence of any state court findings on the issue of
whether petitioner’s jury trial waiver was knowing and
intelligent[,]” because “[t]he state courts refused to inquire as
to the validity of the waiver of trial by jury, beyond review of
the in-court colloquy and the waiver form.” Sowell, 2001 WL
1681142, at *17-*18. The district court again noted in this
context that “the in-court waiver colloquy was deficient in
that petitioner was never advised that both verdicts had to be
unanimous before a death sentence could issue.” Id. at *17
24 Sowell v. Bradshaw No. 02-3441
7As previously noted in the procedural default discussion, this circuit
has recognized the failure to provide documentation in an Ohio court as
an adeq uate basis for dismissing on procedural de fault grounds. See, e.g.,
Lorraine, 291 F.3d at 426. If failure to provide d ocumentation is
adequate to support procedural default, it must also be adequate to support
the decisio n of the state court not to expand the scop e of the evidence
reviewed to determine whether a jury wa iver was intelligent.
(emphasis in original). However, as previously noted the
colloquy was not constitutionally deficient. Further, Ohio
courts have held that it is necessary for a petitioner in a post-
conviction proceeding to produce more than a self-serving
affidavit in order to rebut the presumption that a proceeding
on the record was valid.7 See Kapper, 448 N.E.2d at 826.
Thus, the Ohio courts’ decisions to look only at the colloquy
and the written waiver was reasonable. See, e.g., J.A. at 318;
Ohio v. Sowell, 598 N.E.2d 136, 143 (Ohio Ct. App. 1991).
Further, the district court concluded from evidence
presented at the evidentiary hearing that information
conveyed either directly or indirectly from defense counsel
caused Sowell to believe that he would not receive a capital
sentence if he waived a jury. Sowell, 2001 WL 1681142, at
*18. Pinales testified at the hearing as follows:
A. [Pinales] . . . I believed that I would not be involved
in a death penalty case if there was a three-judge
panel. I believe[d] that because that was my
impression of what Judge Crush said to me. Did I
convey that to my client? Absolutely. Did I tell him
that this is etched in tablets that I brought down
from a mountain? Absolutely not.
Q. Do you recall if you would have stated it to him in
terms of a promise?
A. No, I would not have said it as a promise.
J.A. at 562; see also id. at 566 (“I did not say to Mr. Sowell,
[‘Y]ou waive a jury, and you will not be given the death
penalty.[’] I believe from the tone of everything I said, that

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No. 02-3441 Sowell v. Bradshaw 25
was certainly the connotation, but that was not—I couldn’t
swear that I said those specific words.”).
The record reflects that Pinales formed a strong impression
from the discussions with Judge Crush during the pre-trial
conferences in this case that Judge Crush would not impose
the death penalty. Pinales, assuming he had a sound strategy
that would spare Sowell’s life, advised Sowell that he should
waive his right to a jury trial. Sowell thought it was best to
trust his attorney, so he waived his right. Unfortunately for
Sowell, the three judge trial ended with a capital sentence. It
might be significant whether Pinales led Sowell to believe,
and whether Sowell in fact believed, that the panel of judges
could not deliver the death penalty (because, for example, the
law allowed juries but not judge-panels to deliver the
penalty), or whether it was only an estimation or prediction
that they would not deliver it. Such a distinction indicates a
difference between a mistake of law (which if corrected could
have changed Sowell’s choice) and taking a risk to lessen the
chance of a death sentence. Neither the district court nor the
parties focused on this distinction. They appear, to varying
degrees, to assume Sowell was taking a risk. This record
contains no evidence that Pinales told Sowell that the panel of
judges could not impose the death penalty, and Sowell has not
presented evidence to support a finding that he believed that
the panel could not impose the death penalty. To the extent
that the district court implied that Sowell made a mistake of
law (i.e., that Sowell believed that a three-judge panel could
not sentence him to death), it committed clear error. Sowell
took a litigation risk and lost; these facts alone do not create
a constitutional violation.
The district court’s conclusion that Sowell did not
“intelligently consent” to jury waiver was also based on the
court’s findings that Sowell had a “low level of cognitive
skills and comprehension” and less-than-average, “limited”
intelligence. The former finding was supported by the district
court’s observations of Sowell during the evidentiary hearing
and testimony by Pinales; the latter finding was supported by
26 Sowell v. Bradshaw No. 02-3441
expert testimony. We cannot say that these findings are
clearly erroneous. The district court concluded that “it is
clear that the petitioner exhibited comprehension deficits and
that petitioner decidedly misapprehended that, if he waived
his right to a jury trial, he would not be sentenced to death.”
Sowell, 2001 WL 1681142, at *18. Even with limited
cognitive skills and intelligence, however, the question still
turns on just what Sowell “misapprehended.” Even with
comprehension deficits and limited intelligence on the part of
Sowell, there is no basis for concluding that he thought that
he was legally guaranteed not to be sentenced to death. The
record supports at most that Sowell understood his chances of
avoiding the death penalty were much greater if he waived a
jury trial. Such “misapprehension,” even if exacerbated by
comprehension deficits and limited intelligence, still amounts
to the taking of a calculated litigation risk and thus still does
not amount to a lack of intelligent consent.
The dicta in Martin did not establish the precise minimal
constitutional requirements for an intelligent waiver. In
contrast, this court in Sammons approved of the statement by
the Seventh Circuit that there is a knowing and intelligent
waiver where the defendant “‘understood that the choice
confronting him was, on the one hand, to be judged by a
group of people from the community, and on the other hand,
to have his guilt or innocence determined by a judge . . . .’”
Sammons, 918 F.2d at 597 (citing United States ex rel.
Williams v. DeRobertis, 715 F.2d 1174, 1180 (7th Cir. 1983)).
The evidence only supports a conclusion that, despite his
intellectual limitations, Sowell understood this choice.
Hence, Sowell’s jury waiver survives constitutional scrutiny,
and a writ cannot issue on the ground that it did not.
IV. Ineffective Assistance of Counsel
As Sowell made a constitutionally effective waiver of his
right to a jury trial, his only remaining claim is ineffective
assistance of trial counsel. Sowell, however, has not
demonstrated that his counsel’s performance was

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No. 02-3441 Sowell v. Bradshaw 27
unreasonable. “A claim of ineffective assistance of counsel
presents a mixed question of law and fact; therefore we
review both the state court and district court determinations
de novo. Our de novo review includes both the performance
and prejudice components of an ineffective assistance claim.”
Coleman v. Mitchell, 268 F.3d 417, 445 (6th Cir. 2001)
(citations omitted).
Ineffective assistance of counsel claims are generally
governed by Strickland v. Washington, 466 U.S. 668 (1984),
in which the Supreme Court established a two-part inquiry:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
Strickland, 466 U.S. at 687. In determining whether an
attorney’s conduct was deficient, the Supreme Court stressed
that “the proper standard for attorney performance is that of
reasonably effective assistance,” id., “viewed as of the time of
counsel’s conduct,” id. at 690, and considered “in light of all
the circumstances,” id. “Judicial scrutiny of counsel’s
performance must be highly deferential.” Id. at 689.
“Because of the difficulties inherent in making the evaluation,
a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’” Id.
(citation omitted); see also Miller v. Francis, 269 F.3d 609,
28 Sowell v. Bradshaw No. 02-3441
615 (6th Cir. 2001); Cobb v. Perini, 832 F.2d 342, 347 (6th
Cir. 1987).
Neither the Warden nor the district court cited the
Strickland two-part test, apparently assuming the ineffective
assistance of counsel claim was intertwined with the jury
waiver claim. However, Sowell must demonstrate a
Strickland violation to receive a writ for a violation of his
Sixth Amendment rights because of the ineffectiveness of his
counsel.
The first step of Strickland requires that Sowell
demonstrate that Pinales’s performance was seriously
deficient. That is, Sowell must overcome “a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance,” Strickland, 466
U.S. at 689, and show that Pinales made errors so serious that
he was not functioning as the “counsel” guaranteed by the
Sixth Amendment.
Pinales, however, did a constitutionally sufficient job. At
the Ohio jury waiver hearing, Judge Crush asked Pinales and
Sowell’s other attorney, “Counsel of course have discussed
this [waiver] with the defendant at length?” J.A. at 727–28.
Pinales replied, “Absolutely, Your Honor,” and Sowell’s
other attorney agreed. Id. at 728; see also id. at 731 (Sowell
answering “Yes” to Judge Crush’s question whether he had
discussed the waiver with his attorneys). Sixteen years later,
at the district court’s hearing, Pinales did not recall the
specifics of his conversation with Sowell, and only recalled
that they had discussed waiving the jury. See J.A. at 527; see
also id. at 529 (Pinales, when asked “whether you informed
Mr. Sowell that his jury waiver was still a method to be
convicted and sentenced to death,” answering, “I can’t recall
that specific. I probably said it, but I probably also said that,
very strongly, that I believe that he would not be facing the
death penalty if he waived a jury.”). Pinales did not recall
that Sowell had any difficulty in understanding the jury
waiver issues at the time. Id. at 559. This evidence does not

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No. 02-3441 Sowell v. Bradshaw 29
show that Pinales’ performance was constitutionally deficient.
Further, the simple fact that Pinales mistakenly thought that
Judge Crush would not impose death does not mean that
Pinales was acting unreasonably.
Furthermore, there is strong evidence that everything came
down to Pinales’s recommendation, and it did not matter how
much Sowell may or may not have been informed of what he
was giving up and risking. Both Pinales and Sowell testified
that Sowell trusted Pinales implicitly, and decided to waive
solely because of Pinales’s recommendation. See J.A. at 527-
28 (Pinales testifying that “Billy Joe totally relied on the
advice that I was giving. . . . He was like a lost puppy in the
jail, and I think I became his only friend. So I certainly think
he relied on what I said.”); id. at 558-59 (Pinales, when asked
whether he recalled Sowell’s response to the recommendation
to waive a jury, replying, “I can’t recall specifically . . . but I
can tell you his reaction to everything. It was almost
whatever I wanted to do. Clearly he put his faith in me. And
fate.”); id. at 573 (Sowell, when asked why he had waived his
jury trial, answering, “Because I had faith and conviction and
belief in my attorney”); id. at 574 (Sowell, when asked
whether in deciding to waive his right to a jury he considered
anything other than Pinales’s recommendation, answering,
“No. No.”). Everything appears to come down to whether
Pinales had a reasonable basis for thinking that Judge Crush
would not impose a death sentence. The district court did not
consider this issue, and the record does not show that Pinales
had no reasonable basis for so thinking.
Pinales recommended that Sowell take a calculated risk,
which he did. There was no evidence that Pinales guaranteed
Sowell a result, or misstated the law. The district court found
that Pinales advised Sowell that “he would be spared the
death penalty if he waived jury trial.” Sowell, 2001 WL
1681142, at *18. While this statement can be read in different
ways, if the statement by the district court amounted to a
finding of fact that Pinales guaranteed that Sowell would not
be sentenced to death, the record does not support such a
30 Sowell v. Bradshaw No. 02-3441
conclusion. Pinales on a number of occasions specifically
stated that he did not tell Sowell that he would be ineligible
for the death penalty if he waived his right to a jury. J.A. at
529 (Pinales admitted that he probably told Sowell that a
death sentence was still an option if he waived a jury); id. at
566 (“I did not say to Mr. Sowell, you waive a jury, and you
will not be given the death penalty.”). Pinales explicitly
stated that he read the jury waiver to Sowell. Id. at 531 (“I’m
sure I must have read [the jury waiver form] to [Sowell]”); id.
at 536 (“My recollection now is . . . I sat at the table, read it
to him, showed him where to sign.”). Although Pinales might
now, over sixteen years later, approach the situation
differently, his actions on the record of this case, concerning
his advice to Sowell regarding the jury waiver, did not fall
below a minimal level of professional competency, and thus
did not constitute ineffective assistance of counsel.
The court is not required to address both components of
Strickland if one component fails. Strickland, 466 U.S. at
697. Thus, as Sowell did not demonstrate that his counsel
performed below an objectively reasonable level, the court
need not discuss the prejudice component.
Because Sowell has failed to demonstrate that the state
court proceedings denied him either his right to trial by jury
or his right to effective assistance of counsel, he has failed to
demonstrate that those proceedings were fundamentally
unfair. We therefore REVERSE the judgment of the district
court granting the writ of habeas corpus.

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No. 02-3441 Sowell v. Bradshaw 31
_______________
DISSENT
_______________
KAREN NELSON MOORE, Circuit Judge, dissenting. I
respectfully dissent because Billy Joe Sowell’s (“Sowell”)
waiver of his constitutional right to a jury trial was neither
knowing nor intelligent. What the majority labels as a
calculated risk undertaken by Sowell, I consider to be the
height of uncertainty because Sowell, an abnormally
unintelligent individual, was not aware that he could still
receive the death penalty if he waived his right to a jury trial.
In light of the pre-AEDPA standards of review that we must
apply, I would affirm the district court’s grant of a conditional
writ of habeas corpus because a jury trial waiver is not
knowing and intelligent when a defendant is not aware that he
or she could be sentenced to death.
Risk is not synonymous with uncertainty. Whereas risk can
be managed, uncertainty is immeasurable and wild. The
calculation of risk centers upon an estimation of potential loss
versus potential benefit. Accordingly, risk cannot be
managed without some knowledge of the possible downside.
Just as even the most risk-loving sports gambler or venture
capitalist would not place a bet or make an investment
without knowing the size of the financial stake being risked
(the amount that could be lost), a criminal defendant cannot
fully understand the ramifications of waiving his or her right
to a jury trial without knowing the potential loss that could
result. Such a concept resonates with even more intensity
when a defendant has limited cognitive abilities.
The filing of Sowell’s habeas petition before the enactment
of AEDPA impacts our review of the state court proceedings.
We review de novo a state court’s “[d]eterminations of law,
or determinations involving mixed questions of fact and law.”
Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999). A writ of
habeas corpus must be issued “if the state court proceedings
32 Sowell v. Bradshaw No. 02-3441
were fundamentally unfair as a result of a violation of the
Constitution or laws or treaties of the United States.” Powell
v. Collins, 332 F.3d 376, 388 (6th Cir. 2003). The failure of
the state trial court to ensure that Sowell knowingly and
intelligently waived his right to a jury trial in accordance with
the constitutional guarantees afforded to criminal defendants
rendered the state proceedings fundamentally unfair.
The primacy of the jury trial represents one of the pillars
upon which our criminal justice system rests. See Duncan v.
Louisiana, 391 U.S. 145, 149 (1968) (“[T]rial by jury in
criminal cases is fundamental to the American scheme of
justice . . . .”); U.S. CONST. art. III, § 2 (“The Trial of all
Crimes . . . shall be by Jury. . . .”); U.S. CONST. amend. VI
(“In all criminal prosecutions, the accused shall enjoy the
right to . . . an impartial jury. . . .”). “Trial by jury is the
normal and, with occasional exceptions, the preferable mode
of disposing of issues of fact in criminal cases above the
grade of petty offenses.” Patton v. United States, 281 U.S.
276, 312 (1930). Even though “the right of the accused to a
trial by a constitutional jury [must] be jealously preserved,”
id., a defendant can waive this core right, but only when
certain safeguards have been satisfied. “[B]efore any waiver
can become effective . . . the express and intelligent consent
of the defendant” must be obtained. Id. “[T]he duty of the
trial court in that regard is not to be discharged as a mere
matter of rote, but with sound and advised discretion, with an
eye to avoid unreasonable or undue departures from that
mode of trial or from any of the essential elements thereof,
and with a caution increasing in degree as the offenses dealt
with increase in gravity.” Id. at 312-13 (emphasis added).
The validity of such a waiver turns on the particularized
facts of a specific case. “[W]hether or not there is an
intelligent, competent, self-protecting waiver of jury trial by
an accused must depend upon the unique circumstances of
each case.” Adams v. United States ex rel. McCann, 317 U.S.
269, 278 (1943). Our analysis of the waiver’s intelligence
cannot ignore two circumstances pertinent to this appeal: the

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No. 02-3441 Sowell v. Bradshaw 33
gravity of the potential sentence and Sowell’s mental state.
“What is at stake for an accused facing death or imprisonment
demands the utmost solicitude of which courts are capable in
canvassing the matter with the accused to make sure he has a
full understanding of the consequences of his actions.”
Boykin v. Alabama, 395 U.S. 238, 243-44 (1969) (quotation
omitted). “[B]ecause there is a qualitative difference between
death and any other permissible form of punishment, there is
a corresponding difference in the need for reliability . . . .”
Zant v. Stephens, 462 U.S. 862, 884 (1983). This need for
reliability is even more pressing when a death-penalty eligible
defendant has demonstrated mental problems. “[T]he purpose
of the ‘knowing and voluntary’ inquiry . . . is to determine
whether the defendant actually does understand the
significance and consequences of a particular decision . . . .”
Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993).
In evaluating the constitutionality of various processes for
assessing the intelligence of a waiver, we have not mandated
that a state trial court conduct a defined colloquy or even
obtain a written waiver, but in order for a waiver to be
constitutionally sound, the trial court must be convinced that
the waiver is knowing and intelligent. In the context of a
direct federal appeal, we have stated that a waiver is knowing
and intelligent only if the defendant has “both the mental
ability and some knowledge of the jury trial right before he is
allowed to waive it” so as to allow the defendant to
“intelligently weigh the value of the safeguard.” United
States v. Martin, 704 F.2d 267, 273 (6th Cir. 1983). We have
“implore[d] district courts to personally inform each
defendant of the benefits and burdens of jury trials on the
record prior to accepting a proffered waiver,” id. at 274, but
we have stopped short of making mandatory such a colloquy.
See United States v. Sammons, 918 F.2d 592, 597 (1990)
(declining to impose a colloquy requirement); Spytma v.
Howes, 313 F.3d 363, 370 (6th Cir. 2002) (applying Martin
and Sammons in the habeas context). In Martin, we
suggested that, “[a]t a minimum, a defendant should be
informed that a jury is composed of 12 members of the
34 Sowell v. Bradshaw No. 02-3441
community, he may participate in the selection of the jurors,
the verdict of the jury must be unanimous, and that a judge
alone will decide guilt or innocence should he waive his jury
trial right.” Martin, 704 F.2d at 274-75. Similarly, we have
held that a written waiver is not constitutionally required.
Fitzgerald v. Withrow, 292 F.3d 500, 504 (6th Cir. 2002).
Nevertheless, there must be some indication that a
defendant is intelligently and knowingly waiving the right to
a jury trial, which I believe includes a showing that the
defendant understands the maximum punishment available in
the event of a finding of guilt. There are different reasons
why a defendant would forego trying his or her case in front
of a jury, one of which is a belief that a defendant may be less
likely to receive a certain punishment, particularly the death
penalty, if he or she submits to a bench trial. In such a
situation, a decision to waive the right to a jury trial cannot be
considered intelligent if the defendant is not aware of
sentence that could result.
Here, neither the written form nor the oral colloquy
apprised Sowell that the death penalty would still be available
upon waiver of the right to a jury trial. The written waiver
did not discuss the death penalty. The oral colloquy similarly
lacked any mention of punishment, save for an oblique
reference to the “maximum penalty” in the midst of a
convoluted and unfinished half question/half thought that
would be confusing to many trained lawyers and judges, as
well as most criminal defendants. See Joint Appendix
(“J.A.”) at 730 (Trial Tr.) (“And of course do you understand
that, of course, before the maximum penalty could be before
— Okay, do you understand that the judges to sit with this
Court, that is the other two judges will be selected by the
presiding Judge, I am not the presiding Judge of the Common
Pleas Court, but that the presiding Judge of the Common
Pleas Court will decide who the other two judges will be?”).
The state trial court never ascertained if Sowell understood
that the three-judge panel had the ability to sentence him to
death nor did it mention the penalty stage of the proceeding.

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No. 02-3441 Sowell v. Bradshaw 35
1This factual finding, along with all the other factual findings made
by the district court, was not clearly erroneous. Based upon a review of
the evidence presented during the evidentiary hearing, I am not left with
the “firm and definite” conclusion that the district court erred.
Furthermore, all of the testimony relating to Sowell’s mental capabilities
was unrebutted by the State.
The majority places great stock in the distinction between
Sowell believing that a panel of judges could not deliver the
death penalty and Sowell believing that a panel would not
deliver it. Op. at 24. While this is a narrow legal distinction
that Sowell’s attorney perhaps understood, I cannot believe
that Sowell, given his mental infirmities, distinguished
between the two, particularly when his attorney did not make
clear the difference and when the trial court did nothing to
explain that Sowell could still receive the death penalty if he
appeared before the three-judge panel. Sowell clearly
believed that he would not receive the death penalty if he
waived his jury right: whether he believed that the law
prevented the judges from sentencing him to death or that the
judges would not sentence him to death is immaterial, as
either belief belies the knowing and intelligent nature of his
jury waiver.
The reality that Sowell was an individual of abnormally
low levels of intelligence and powers of comprehension
cannot be shunted aside. See Lott v. Coyle, 261 F.3d 594, 611
n.8 (6th Cir. 2001) (noting that “we do not take lightly any
suggestion that [the defendant] lacked the mental ability to
understand the rights he was waiving,” but ruling that the
defendant had not sufficiently demonstrated that he suffered
from some limitation of his mental abilities). The district
court found that Sowell had only an eighth grade education,
suffered from organic brain damage, and had an intelligence
level in the bottom 2% of the population.1 The defendant’s
expert testified that the “the likelihood that Mr. Sowell
genuinely understood, intellectually and intelligently
comprehended what was being said to him, is minimal.” J.A.
at 605 (Gelbort Test.). The state trial court knew of Sowell’s
36 Sowell v. Bradshaw No. 02-3441
2Two of the mental health specialists (Drs. William Walters and
Emmett Coop er) who examined Sowell prior to the jury waiver colloquy
in order to assess his co mpe tency to stand trial concluded that Sowell
could stand trial, but that he had an extremely low IQ , an inab ility to
comprehend complex concepts, and diminished intellectual capacity.
Joint Appendix at 494 (D ist. Ct. Op.).
problems,2 proceeded to ask him rote questions about several
structural aspects of a jury trial, but completely failed to
mention the potential punishment that Sowell faced. Given
that “the right of the accused to a trial by a constitutional jury
[must] be jealously preserved,” Patton, 281 U.S. at 312, and
mindful of the trial court’s duty to ensure that a defendant is
intelligently waiving the right to a jury trial — a duty that is
exercised “with a caution increasing in degree as the offenses
dealt with increase in gravity,” id. at 312-13 — I cannot agree
that Sowell intelligently waived his rights, because he did not
understand that he would still be eligible for the death
penalty.
I respectfully dissent.

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