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Habeaas Petition by Death-Row Inmate Rejected

Phillips v. Bradshaw, Case No. 06-4418 (C.A. 6, Jun. 1, 2010)

Ronald Phillips was convicted of rape and aggravated murder of Sheila Marie Evans and sentenced to death. The Ohio courts upheld his conviction and sentence on direct review and in post-conviction proceedings. The federal district court denied his petition for a writ of habeas corpus under 28 U.S.C. § 2254. For the following reasons, we AFFIRM the district court’s denial of Phillips’s petition.

I. BACKGROUND
A. Facts

On direct appeal, the Ohio Supreme Court recited these facts:

On January 18, 1993, Sheila Marie Evans, age three, died as a result of cardiovascular collapse due to, inter alia, severe, blunt force trauma to her abdomen. At the time, Sheila’s mother, Fae Evans, was dating and occasionally cohabiting with [Phillips]. In addition to Sheila, Evans had two other children, Sara, twenty-nine months old, and Ronald, Jr., [Phillips’s] infant son.

Shortly after 10:00 a.m. on the morning of January 18, 1993, Fae Evans took Ronald, Jr. to see the family physician for a routine physical examination. [Phillips] remained at Evans’s apartment to care for Sheila and Sara. Evans returned to the apartment at approximately 11:25 a.m. and found [Phillips] sitting in the kitchen. Soon thereafter, Evans called out to her daughters, but they failed either to respond or to appear. [Phillips] walked into the girls’ bedroom and found Sheila lying on her bed motionless, pale and cold. He then lifted Sheila and carried her downstairs to his grandmother’s apartment. Hazel Phillips, [Phillips]’s grandmother, telephoned the 911 emergency operator, reported that Sheila was not breathing, and relayed instructions on performing cardiopulmonary resuscitation to [Phillips]. [Phillips] in turn attempted to revive Sheila until medical assistance arrived.

Paramedics from the city of Akron responded to the 911 call within four minutes of being dispatched and immediately transported Sheila to Children’s Hospital in Akron. Upon her arrival at the emergency room, Sheila was not breathing and had no pulse. The first physician to examine Sheila, Dr. Eugene Izsak, noted that she had multiple bruises on her torso, a distended stomach, apparent internal abdominal injuries, and a stretched anus with some acute, recent changes. Dr. Izsak’s medical team continued cardiopulmonary resuscitation and was eventually able to obtain a pulse. Sheila was transported to the operating room after spending approximately one hour in the emergency room. Dr. Robert Klein performed emergency abdominal surgery, which revealed that Sheila’s abdominal cavity was filled with a significant amount of free air and blood, and that a portion of her intestine, the duodenum, was perforated and gangrenous. Dr. Klein removed the dead portion of the intestine, and attempted to control the internal bleeding. Based upon his observations, Dr. Klein determined that the injury to the duodenum had been inflicted at least two days prior to Sheila’s admission into the hospital. Despite the significant medical efforts performed at Children’s Hospital, Sheila died later that day.



 

 

Judge(s): Cole, McKeague, and Siler
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Related Categories: Criminal Justice
 
Circuit Court Judge(s)
Guy Cole, Jr.
David McKeague
Eugene Siler, Jr.

 
Defendant Lawyer(s) Defendant Law Firm(s)
Sarah Hadacek Office of the Ohio Attorney General
Adam Van Ho Office of the Ohio Attorney General

 
Petitioner Lawyer(s) Petitioner Law Firm(s)
Timothy Sweeney Law Office of Timothy Farrell Sweeney
Ruth Tkacz Office of the Ohio Public Defender

 

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deprived of non-cumulative mitigating evidence such as severe physical, psychological, year-old who had never lived outside the control of his abusive parents could have not functioning as the "counsel" guaranteed the defendant by the sixth was messy, and cluttered. the odor was overwhelming; it was a combination of their dog we found prejudice because counsel failed to present evidence "of a childhood in which sheila when she was brought to the emergency room, so a reasonable jury could easily to report that phillips's father "punches" his three step-children and had recently "punched kerryo'brienandmichaeledministerrepresentedphillipsattrial,withedministerhandling the dead portion of the intestine, and attempted to control the internal f.3d at 604. we noted that a fully-informed psychologist would have opined to the jury jury's request or issued any supplemental instructions. in response to an interrogatory not used drugs and the testimony that phillips was a helpful child. see williams, 529 his step-father was having sexual relations with phillips's younger sister and that the living in the home. later that same year, one of the adults living in the home contacted csb due to counsel's inadequate investigation, the jury never learned that petitioner "grew adjudication, we look to wiggins [] and rompilla . . . because they . . . `applied the same state v. phillips, 656 n.e.2d 643, 650-52 (ohio 1995). was not prejudiced by the jury's ignorance of the subsequently discovered mitigating sentence on direct review and in post-conviction proceedings. the federal district court any sexual abuse. following additional complaints in 1985, all three of the older step- history of abuse in the phillips home by two red flags: first, the existence of summit step-children, william, sr. was molesting mary. when interviewed by a social worker, the leading to a large body of mitigating evidence that would have considerably altered the minimum standard of competency required by the united states constitution. because not warrant death." strickland, 466 u.s. at 695. "a reasonable probability is a probability not a critical stage of his trial. during its guilt-phase deliberations, the jury sent the trial one hour in the emergency room. dr. robert klein performed emergency with a significant amount of free air and blood, and that a portion of her result of his counsel's allegedly deficient performance, his constitutional in this case reveals that trial counsel performed an adequate investigation of relationships." smith opined that phillips misperceived sheila's conduct and reacted as received a report that the house was "disgusting [and] uninhabitable for human beings." approached. crowe chatted with some of the jurors, mentioned that she toward the end of the approximately three-hour interview, [phillips] on the girl's bottom, which surprised him. he said, "i really didn't think i not an unreasonable application of federal law to the case, we are precluded from accurately about his psychological condition and the reasons for his crime. we engage in another. generally,thedecisionofwhatmitigatingevidencetopresentduring single conversation with dr. brown. see wiggins, 539 u.s. at 524, 527 (explaining that, [phillips] indicated [that evans] encouraged him to have physical contact records indicated a long history of complaints and allegations of neglect, abuse, and no. 06-4418 phillips v. bradshaw page 14 phillips's father as screaming and swearing at the top of his lungs when confronted with the phillips's case. similarly, in johnson, although some aspects of the abuse suffered by suffered--acts of the same order of odiousness as those he committed--as merely that was important for the jury to hear and that would have allowed his psychologist to opine treated sheila on the day of her death, testified that her ruptured duodenum would have written copy of instructions that have already been delivered orally is not a critical phase four children: william, jr. (born in 1972), petitioner (born in 1973), eric (born in 1975), and abdominal surgery, which revealed that sheila's abdominal cavity was filled the state court inexplicably and unreasonably opined that such evidence "may actually 2007); caver v. straub, 349 f.3d 340, 350 (6th cir. 2003), the re-reading of identical previous criminal record even though he had grown up in an "antisocial" environment. that counsel failed to discover and present in that case would have shown that the would have discovered evidence that would have altered considerably the mitigation professional level. the burden is on the defendant to make such a showing by `identify[ing] intestine,theduodenum,wasperforatedandgangrenous. dr.kleinremoved alone, [phillips] told perella, "i don't want to go to jail, i don't want to get retarded level and was raised in a home where his biological father denied his physically abused," and, on the seldom occasions when they came to school, "were marked (5) the offender's lack of a significant history of prior criminal convictions (finding prejudice where no witness testified about the abuse and privation the defendant psychologist who examined phillips, and follow the new leads that the files would have inadequate investigation into his background. to that end, mr. phillips cites [phillips] denied having ever touched sheila or sara in their "private areas." phillips failed to set forth sufficient operative facts that demonstrate a errors were so serious as to deprive the defendant of a fair trial, a trial whose signs of a mental disability or disorder. 354 f.3d at 489-91. all of these elements are previous minor brush with the police. once he started dating evans, he helped care for her and mentally ill women], we know that a number of the women, because of acute contusions of the small and large bowel, with perforations of the with all included definitions." the record does not reflect that the court responded to the single member of the jury would have found, based on both the newly-discovered and two young daughters, and he gave them a dog as a pet. after his son was born, phillips tanya (born in 1976). the family moved from pennsylvania to akron, ohio, when phillips consider it." despite this finding, appellant contends that crowe's unnecessary" and that "strategic choices made after less than complete investigation are arrested goes to jail, that there could be counseling but without knowing sufficient to undermine confidence in the outcome." id. at 694. "ohio is a weighing state, haveconcludedthatthebalanceofaggravatingandmitigatingcircumstances likewise, the evidence when he did set about preparing a mitigation case, edminister explained that he when she jumped from a dresser to a bed and struck the corner of the bed. phillips was a normal child who was helpful around the house and assisted elderly neighbors character, background and organic brain damage--at least no information of a sort if not a more serious disorder, as the direct result of the trauma he experienced in his phillips needed a structured environment with rigid controls, where authority and the in describing the phillips home as "an unpleasant living environment," the sexual abuse, noting especially that such men "fear being victims of future sexual abuse by a criminal defendant has the right to be present at any proceeding disagree. the defense introduced six witnesses during the mitigation the jury is similar to evidence that has led us to find prejudice in previous cases. in jells, the other [phillips] children had[, ][and phillips's] feelings of guilt and shame were very no. 06-4418 phillips v. bradshaw page 12 thinking he could do as well by asking the defendant or family relations whether they that the experience would not influence their decision in the case. at the methods of presenting mitigating evidence. contrary to or an unreasonable application of federal law. see beuke, 537 f.3d at 646. the cooperate or disclose mitigating evidence. see harries v. bell, 417 f.3d 631, 638 (6th three times for breakfast and she had failed to respond. as a result, miranda rights, which he again waived, and asked [phillips] to share have been reduced in the jury's eyes if they had known that his only male role model had strategy, asserting that such strategy was a result of poor preparation and caseworker described cockroaches crawling on the table and walls while she was no. 06-4418 phillips v. bradshaw page 15 occasion when the defendant had struck fae evans. donna acknowledged that she had a dr. smith was of the opinion that phillips was sexually abused as a child, although beating of sheila on january 18 caused her death; second, he claims that the evidence edminister have prepared an effective mitigation case without whatever evidence the whenever his presence has a relation, reasonably substantial, to the as previously discussed, the existence of alternative or additional indulge in a strong presumption that trial counsel's conduct falls within the phillips admitted to police officers that in the course of beating sheila on the day 545 u.s. 374, 389 (2005) ("no reasonable lawyer would forgo examination of the file of any of defense counsel's essential duties to his client and prejudice arising 71 f.3d at 1207 ("[t]he jury was given virtually no information on [defendant's] history, occasion, [phillips] claimed that sheila hurt her "vagina and stomach area" sheila with his penis on at least two prior occasions. he stated to police officers that "unpleasant." it is also difficult to understand the majority's argument that the fact that and asked him to return to the police department for further questioning. should have heard that phillips's father regularly threw phillips's half-brother and two lasted for a month. they should have heard that phillips's half-brother eddie believed (4) the youth of the offender; 5. prejudice to smoke. eleanore crowe, a member of a grand jury panel that was also sufficient evidence to allow a jury to conclude beyond a reasonable doubt that phillips infant son. wealth of mitigating evidence, documenting or providing clues to childhood abuse,'" obligation to perform a thorough investigation of the defendant's background or make evidence standard set forth in jackson, 443 u.s. at 319. see 28 u.s.c. 2254(d)(1). pursuant to sixth circuit rule 206 concluded that sheila died as a result of cardiovascular collapse stemming fails to support a claim of ineffective assistance of counsel. prong, phillips "must show that there is a reasonable probability that, but for counsel's presence of a defendant is a condition of due process to the extent that a if phillips's attorneys had pursued the leads of which they were aware, they good with younger children. a distended stomach, apparent internal abdominal injuries, and a stretched no. 03-00875--kathleen mcdonald o'malley, district judge. to resolve, and there can be no finding of ineffective assistance of counsel without prejudice. mitigating evidence, he would not have been sentenced to death, strickland, 466 u.s. at 694, at her. finally, he confirmed that phillips's father "used to molest my sisters, mary and ronald phillips, effect on his moral and emotional development. it is difficult to understand how the the trial court must hold a hearing when the defendant alleges unauthorized contact with been required if the totality of the mitigating evidence were to be presented. nonetheless, phillips, 656 n.e.2d at 660. as the supreme court noted, the trial court proceeded to petitioner was young, that his primary role model was an uncle who was a career punishment he deserves. strickland standard. first, phillips's counsel could not have made a reasonable strategic thefollowingevidencewasnotpresentedtothejuryduringthemitigation phaseand not an unreasonable application of or contrary to federal law. see jackson, 443 u.s. at csb had investigated a similar allegation. but the jury heard none of this because, as a mental disease or defect, lacked substantial capacity to appreciate the judge a note stating: "we wish to have the following defined again[:] `aggravated parents regularly bought shoplifted items from their drug-clientele, that as a seventh- surrounded by abuse, crime, and drugs. the purpose of introducing this evidence would records and to interview his half-siblings about the phillips' home. he claims that such felony conviction for aggravated drug trafficking. speculative opinion would have been admissible at all, its reliability and weight would certainly have been 3. the jury's finding that phillips intended to kill evans was supported by pressures of a family situation," and would adapt well to prison life; (3) testimony from five the state court found that, even assuming that counsel were deficient, phillips denied. the ohio court of appeals affirmed in part and reversed in part, remanding for for the northern district of ohio at akron. section 2929.04(b) of the ohio revised codelistedthefollowingitems as mitigating factors unprofessional errors, the result of the proceeding would have been different." strickland, cole, j. (pp. 34-47), delivered a separate dissenting opinion. performance prejudiced the defense. this requires a showing that counsel's background information than dr. brown. this psychologist opined that mr. members of the family. environment or to present such files to the examining psychologist). as edminister which he waived. during the interview, [phillips] admitted that on friday, pressures of a family situation. added to the evidence of appellant's age casewithoutworkinghandinhandwith dr.brown," edminister replied: "probablynot." culpable than defendants who have no such excuse."); johnson, 544 f.3d at 604-05 no. 06-4418 phillips v. bradshaw page 2 phillips's culpability in the eyes of the jury. dr. brown benignly described phillips as women will admit that they have sexually abused the[ir] children he also referred in his written statement to dragging sheila from the bedroom to the by competent counsel, there is a reasonable probability that at least one juror would have emotionally immature, psychologically inadequate person," is "ill-equipped to deal with the formative years. he could have offered the jury an explanation for the otherwise does not support a finding that he raped sheila during the course of that beating; and sheila: reversing unless the state court's decision is contrary to or an unreasonable application of approach to conflict," "remarkably poor tolerance for stress and pressure," "self-doubt, forceful in an attempt to obtain copies of all of these documents." (ja vol. 10 at 5617.) "rathersimple[and]emotionallyimmature"andunpersuasivelyexplainedthebrutalrape borderline personality disorder has misperceptions all the time, misperceptions about evidence that "differ[ed] in a substantial way-in strength and subject matter-from the multiple blows, and that, based on a reasonable medical certainty, these blows caused federal law." id. (citing howard v. bouchard, 405 f.3d 459, 467 (6th cir.2005)). mitigation strategy, namely focusing on the dysfunction and abusive family 3. counsel's mitigation efforts and the evidence presented to the jury written copy of the instructions he had already given them orally. although certain reasonable" only "to the extent that reasonable professional judgments support the district court agreed. phillips, 2006 wl 2855077, at *19-20. under the standard set court arrives at a conclusion opposite to that reached by [the united states supreme] phillips made an unsworn oral statement on his own behalf. despite growing up in my breast and feel on my butt." mary also stated that william, sr. would engage in fist not prejudiced by the jury's ignorance of the subsequently discovered mitigating evidence. could be fair and impartial arbiters. phillips has not provided any reason to believe that evidence. because the state court decided this constitutional issue in cursory fashion phillips by his parents was minimal at best. living room, where he penetrated her anus with his fingers. the jury heard that phillips was a normal, all-american boy who liked to play trial counsel chose to present mr. phillips as a caring, helpful, and decent in death penalty cases: have had difficulty in obtaining an order requiring csb to disclose the records. this ongoing history of violence, criminal activity, both by father, mother, and alcohol abuse, avoid gang activity, and improve his grades so that he could phase of phillips's trial. without such information, phillips's counsel could not have foregoing, we cannot find that the trial court erred in determining that mr. order to impose the death penalty." hamblin v. mitchell, 354 f.3d 482, 493 (6th cir. 2003). attempting to commit . . . rape," as is required for a conviction of aggravated murder most of the responsibilities related to the mitigation phase. the trial court appointed a which he identified as acute injuries that had been inflicted within a few other children, sara, twenty-nine months old, and ronald, jr., [phillips's] have fit neatly into counsel's chosen mitigation theory, and a different approach would have appellee. dr. robert smith. smith was provided with the csb records and wrote an initial opinion specify when the most recent rape had occurred. this testimony was not contradictory where [phillips] was enrolled as a student. the officers met with [phillips] no. 06-4418 phillips v. bradshaw page 43 his remaining convictions. the ohio court of appeals and the ohio supreme court indicated that sheila had not felt well during the weekend, and that she had parenting, the only role models he has had are his mother and father, both investigations or to make a reasonable decision that makes particular investigations jury's finding that phillips raped sheila while beating her on the day of her death was enmeshed with sadistic and masochistic behavior). mr. phillips reported no. 06-4418 phillips v. bradshaw page 27 she failed to clean them properly, beat his twelve-year-old brother over the back with a children in a prior relationship: tracy (born in 1965), mary (born in 1966), and edward, or began speaking about [phillips] and his case, the jurors immediately left if we take ronald's background and look at his family, what we have is worth of csb records that his counsel apparently never saw. phillips's mother had three evans took ronald, jr. to see the family physician for a routine physical suspect in the eyes of the jury. tactical decision to focus on [his] voluntary confession"). n [a child who is] not listening, not obeying, not responding, ignoring, cir. 2005). performance in this case prejudiced phillips. in williams, we found prejudice where, internal organs. dr. cox examined the section of sheila's bowel that had we review the district court's decision to grant or deny a habeas petition de novo. also stated that william, sr. had regularly beaten his wife and had thrown knives and dishes smith also offered testimony about why phillips was capable of raping sheila. he the jurors' assurances should be viewed with suspicion or are unreliable, and he has not it comes out and it seems way out of proportion to what may trigger it." according to (finding that counsel's failure to follow leads indicating a troubled childhood was failure to undertake a full investigation of the csb records, provide their contents to the csb visited the phillips home in akron and described donna phillips as an cared for him as well. stated, "my opinion is he was sexually abused." there is no admission by phillips, or testimony from his and who cared a great deal for all of fae evans's children. the defense also parenting that repeat the same behaviors and lead to the same outcomes." id. at 605-06 overly aggressive . . . . additional evidence may have been helpful, it does not render the state court's finding of a phillips was in jail, and that the children were living with phillips's father. in 1992, csb (finding prejudice where, due to counsel's failure to investigate, the jury was misled into hadacek, office of the ohio attorney general, columbus, ohio, for occasions, but claimed that evans had paid him to perform those acts. assistance of counsel. phillips, 74 ohio st.3d at 86, 656 n.e.2d 643. appeal from the united states district court [phillips] was arrested. evans," while another heard "sheila marie" and "goddamn." jurors voted not to put phillips to death. of sheila marie evans and sentenced to death. the ohio courts upheld his conviction and no. 06-4418 phillips v. bradshaw page 32 541 f.3d 652, 656 (6th cir. 2008). we give deference both to the jury's verdict and, 940, 943 n.1 (6th cir. 2000)). the modified-aedpa standard of review requires us to (quoting aba guidelines for the appointment and performance of defense counsel in u.s. 362, 405 (2000)). "a state-court decision is an unreasonable application of clearly phillips, 769 n.e.2d 403 (ohio 2002). in 2003, phillips petitioned for a writ of habeas the ohio supreme court rejected this claim: aggravation-mitigation scale in favor of mitigation. further, an examination by a mental phillips fails to show that the state court's decision was contrary to or an (2) whether it is unlikely that the offense would have been committed, but instructions, but he has not obtained a coa as to these issues. accordingly, these issues are amendment. second the defendant must show that the deficient presented complete mitigating evidence to the jury. he argued that, as a anyone. the following year, in 1981, the principal of eddie's school contacted csb to brown that phillips functioned with a "low average" level of intelligence, is "a rather simple, really no ongoing sexual relationship and becomes involved with [evans] in looking at the undisclosed mitigating evidence, one component towers above the attorney general, cleveland, ohio, for appellee. on brief: timothy f. wealth of mitigating evidence in the csb records, which in turn would have enabled in furtherance of this assertion, mr. phillips proffered new evidence evaluation could be performed and the jury could have been presented with children confirmed that they had been physically abused by both parents. tracy, who is investigations or to make a reasonable decision that makes particular result is reliable. position would have abandoned the investigation at the point he did or failed to have a caused sheila's death. dr. cox, who performed the autopsy on sheila's body, testified "conduct a careful review of the record and applicable law, but nonetheless bars [us] from for violent outbursts. nor is it any surprise that dr. brown's testimony failed to reduce because they incorrectly thought that state law barred access to such records"); not suffer from a mental disease, mental illness, retardation, or antisocial disorder. brown bias, not every time a juror is placed in a potentially compromising situation. see smith sexually abusive. _________________ breathing, and relayed instructions on performing cardiopulmonary that he had suffered frontal-lobe damage. 417 f.3d at 639. characteristics of victims of sexual abuse (e.g., feelings of guilt and 1. sufficient evidence showed that phillips's beating of sheila on january up in an environment[] in which there was an expectation that violence can and brown, phillips's iq score was 87, which placed him in the low-average range, but he did no. 06-4418 phillips v. bradshaw page 30 butt" if sent to jail. state v. phillips, 656 n.e.2d 643, 652 (ohio 1995). home that year, a csb caseworker stated that "[t]he house smelled terrible, was filthy dirty, (ja vol. 10 at 5761-62.). yet despite phillips's lack of disclosure, it was dr. smith's petitioner's alcoholic mother frequently hit him, that his father left his mother when the inventory-2 test resulted in his conclusion that "[i]t is likely that [phillips]suffers fromeither and murder as the result of phillips's "repeated frustrations in his life," which caused his sheila. during the morning of january 18, 1993. given the absence of abrasions his father of his sisters. hence, as the dissent implicitly acknowledges, dr. smith's "opinion" is based on indicates a purpose to kill." phillips, 656 n.e.2d at 656. the state court also reasoned from dr. brown that, while immature and prone to frustration, phillips had no mental no. 06-4418 phillips v. bradshaw page 18 allegations, and she described the children as dirty and of marginal appearance. ohio st.3d at 289, 714 n.e.2d 905. significantly, on direct appeal, the ohio occasionally cohabiting with [phillips]. in addition to sheila, evans had two parties thrown by his parents. most importantly, the jury would have heard of the railroad spike which penetrated either her vagina or anus. on another [with sheila]. i don't know if he saw it as sexual originally. . . . [a]s he no. 06-4418 phillips v. bradshaw page 24 of sexual abuse of phillips personally was virtually non-existent. opinion between the sexual abuse that phillips presumptively suffered and the unthinkable brutality that he grabbed by the back of the neck, slapped across the face, beaten on [the] back and legs." relatives and friends and who cared deeply for ms. evans' children. no. 06-4418 phillips v. bradshaw page 28 critical stages of a trial, see, e.g., valentine v. united states, 488 f.3d 325, 335 (6th cir. better understand what led phillips to commit his horrific crime. see penry v. lynaugh, expressed the belief that crowe had served on the grand jury that had level of intelligence, that he is "a rather simple, emotionally immature, anything except to tell the prosecutor and the judge that he cooperated." four, five, and seven. the additional undisclosed mitigating evidence only provided further the state court found that, even assuming that counsel was deficient, phillips was appellate court, to the extent it independently reweighs the evidence-would jury had just convicted him of raping and murdering one of those children. see cardiopulmonary resuscitation and was eventually able to obtain a pulse. arrest for the present offenses, phillips planned to join the army to become a diesel he was twelve years old in which his father beat him on the back with a two-by-four. he ii. counsel's performance resulted in prejudice ineffective assistance of counsel. [state v.] combs, 100 ohio app.3d [90,] 529 u.s. 362, 395 (2000) (holding that counsel were ineffective because they "failed to and neglectful environment in which phillips spent his life. different. wiggins, 539 u.s. at 534; strickland, 466 u.s. at 694. in determining prejudice, [phillips] went to the girls' bedroom, pulled the covers off sheila, and began see strickland, 466 u.s. at 691-92. because the state court did not unreasonably apply 97, 105-06 (1934)). phillips defaulted this claim by failing to raise it on direct review. had hit both eddie and william, jr. with a belt in a fit of rage. in 1983, when phillips was during this time, donna phillips informed csb that phillips's father "comes and goes," and initially, we note that hiring a mitigation specialist in a capital case his mother's boyfriends beat her and was occasionally beaten by them himself; jells had majority turns a blind eye to the abhorrent conditions that phillips endured and their the record evidence. notwithstanding the lack of evidence that phillips was the victim of sexual abuse, stated to smith that, among other things, his father punched the children in the face and agency that would have revealed a different mitigation strategy); jells v. mitchell, 538 intestinal injuries sustained on january 16, relying on testimony by dr. klein that these is relevant because of the belief, long held by this society, that defendants who commit no. 06-4418 phillips v. bradshaw page 31 phillips's father sexually abused mary and tracy on numerous occasions, but the evidence 10 at 5618.) significantly, edminister himself did not find his mitigation strategy information in support of mitigation until six days prior to jury selection in the guilt federal law when it found prejudice to be lacking, we do not need to discuss whether as "particularly heinous," while dismissing the violence he and his siblings admitted that he "got pissed off and began hitting sheila all over her body, throwing her attacks and criminal activities." brain problems and manic-depressive disorder. 268 f.3d at 449, 451; see also glenn, they heard a psychologist opine, based on traits that phillips shared with many adult men charges counsel with reviewing records from government agencies that "`can contain a three times with an open hand. after the spanking, [phillips] noticed bruises medical assistance arrived. testified that phillips was a "kind, helpful, friendly, and good person who never abused drugs or remmer. see 28 u.s.c. 2254(d). forty-eight-hour period, dr. cox opined, sheila would have suffered from `claim that was adjudicated on the merits in state court proceedings' if the state court's also informed [phillips] that the coroner had performed an autopsy on report a bruise on his arm allegedly caused by his mother. donna phillips admitted that she mentally retarded, arrived at work with a bruised arm and a cut lip, stating that her mother should be sentenced to death. sufficient evidence murder' with all included definitions[;] also `aggravated murder' with `specification' pelvis and into the lumen of the small and large bowel due to multiple stating that one of them was a "very important file for mitigation purposes." edminister's edminister failed to confirm this in csb's records. he never viewed csb's other files on observed evans in the girls' bedroom standing over sheila with both fists mitigation phase of his trial when his counsel: 1) failed to request children's known that phillips grew up undernourished and without adequate clothing in a house united states v. gagnon, 470 u.s. 522, 526 (1985) (quoting snyder v. mass., 291 u.s. retained, the psychologist could have conducted a more reliable mitigationphase. phillipsalsoasserts claims of prosecutorial misconduct and erroneousjury remmer hearing is not inherently suspect. zuern v. tate, 336 f.3d 478, 486 (6th cir. odor" and dog feces throughout the living area of the house. phillips, who was in seventh phillips claims that his counsel were ineffective because they failed to investigate, governinglegalprinciplefrom[thesupreme]court'sdecisionsbutunreasonablyapplies "when a defendant challenges a death sentence such as the one at issue in this case, history of phillips's life. strickland v. washington, 466 u.s. 668, 687 (1984). a counsel's performance is deficient childhood characterized by extreme poverty, neglect, and family violence, as well as have been an attempt to explain the reasons behind phillips's actions. therefore, although performed at children's hospital, sheila died later that day. the ohio supreme court's conclusion that sufficient evidence supported the investigation would have revealed extensive mitigating information about his background department, interviewed [phillips] at the police station. although [phillips] could adjust well to prison. victim; against her second lumbar vertebra, disrupting the blood supply to the duodenum and not move the trial court to order csb to provide him with full access to the records 2. legal standard same conclusion. phillips, 2006 wl 2855077, at *17-19. (7) any other factors that are relevant to the issue of whether the offender he argues that the fact that his blows were directed at non-vital areas and that he report and testimony from dr. smith based on an interview in 2004, in which smith earlier injury. dr. cox testified that sheila had sustained severe blows to the abdomen instances of jury re-instruction and the reading of supplemental instructions qualify as 4. undisclosed mitigating evidence and father, at least one of his siblings and one of his half-siblings, his grandparents, phillips, 656 n.e.2d at 660. the ohio supreme court went on to conclude that, under marginal adjustments to society" and that, like phillips's parents, three of phillips's siblings were being beaten by both parents and that the family had threatened their neighbors with childhood environment would have presented the jury with a plausible reason to spare inadequate mother and the family as functioning "marginally" with multiple problems. in three-year-old girl with his penis on that morning, he denied doing so. no. 06-4418 phillips v. bradshaw page 26 2003). due process requires a new trial only where the defendant demonstrates actual tracy, in that he would grab them by the butt or the breast and fondle them." the penalty phase of a capital trial is a matter of trial strategy. state v. keith x no. 06-4418 phillips v. bradshaw page 9 he "had never heard of that before and so i didn't even bother." (ja vol. 10 at 5604.) 5, 9, 10, 16 and 20 of the ohio constitution were violated. these requirements do not apply if counsel was totally absent from a critical stage of the no reasonable means to recommend a sentence other than death. we complainant also stated that there were dog feces "all over the place" at the phillips home atrocious as it was, becomes more comprehensible. had this evidence been presented fair and just hearing would be thwarted by his absence, and to that extent affirmed his convictions and sentence. state v. phillips, no. 16487, 1994 wl 479164 (ohio profiles, "strongly suggest" that phillips was sexually abused. it follows that even assuming dr. smith's family, that he was sexually abused. moreover, phillips never admitted he knew of any sexual abuse by her daughters, but they failed either to respond or to appear. [phillips] spared. the testimony of dr. smith, armed with the evidence that phillips's counsel other perpetrators" and "fear that other men within the prison environment may view [them] of a trial. therefore, phillips is not excused from showing cause and prejudice, and, insights "`into the client's mental and/or emotional state and life history that may explain amendments to the united states constitution and article i, sections 1, 2, grade at the time, was temporarily sent to live with his grandmother. later in 1988, an nine years old, eddie reported to csb that phillips's father had grabbed him by the shoulder [i]f you think about ronald's background and what he knows about dr. brown did here, that the petitioner had borderline intelligence and difficulty we proceed with the reweighing of the evidence. it was not reasonable for counsel to rest their conclusion that no abuse had sexually abused and suffered from, at the very least, borderline personality disorder. the testify and say something nice about say something at all about him . . . ." (ja vol. father molested his half-sisters, one of whom was mentally retarded, and abused them conclusion of no prejudice was not contrary to clearly established federal law, and it was whatever additional information he wished to convey. [phillips] then physically abusive to the children in his household. he also submitted a two flaws. first, it ignores the fact that even dr. smith was unable to identify a specific causal nexus on august 18, 1993, an ohio jury convicted phillips on one count of aggravated discover, and present evidence found in the summit county child services bureau ("csb") substantive elements of the crime are defined by state law. id. to convict phillips of court on a question of law or if the state court decides a case differently than [the five jurors immediately returned to the courthouse and reported the maldonado v. wilson, 416 f.3d 470, 476 (6th cir. 2005) (quoting harris v. stovall, 212 f.3d children's hospital in akron. upon her arrival at the emergency room, school several times for disciplinary reasons, including gross insubordination to a teacher not before us. see owens v. guida, 549 f.3d 399, 408, 414 (6th cir. 2008). no. 06-4418 phillips v. bradshaw page 23 [d]uring a trial recess, four jurors and one alternate left the courthouse a. facts two-by-four, and punched the children--male and female alike--in the face. they of the materials. in edminister's and o'brien's conversations with phillips and his family frustrations and aggressions led him to snap. by introducing positive evidence of phillips's appellant contends that his counsel introduced "paltry evidence" in while we have no doubt that the conditions in the home and the treatment of indicated that he had never been arrested prior to the current offense and had only one offender, the degree of the offender's participation in the offense and the while looking for a business associate of his. after getting in the truck, [he] pulled off on hours of death. the bruising indicated that sheila had been severely beaten interview lasted approximately seven hours, during which time [phillips] under the constitutional standard we employ when reviewing ineffective- repeated reports that the phillips children were being severely abused. was two years old. csb records state that the csb's counterpart in pittsburgh contacted the phillips family and never made any other effort to obtain access to those files or copy any was not placed under arrest, falcone read [phillips] his miranda rights, requires that the court "conduct a careful review of the record and applicable law, but women with a history of abuse and mental illness, had encouraged and participated in strickland, 466 u.s. at 689-91 (stating that "counsel has a duty to make reasonable was not determinative of his state of mind during the beating, that phillips struck vital smith v. phillips, 455 u.s. 209, 216-17 (1982), and remmer v. united states, 347 u.s. childhood environment--the environment in which he spent his entire life prior to his four minutes of being dispatched and immediately transported sheila to denying this claim on direct appeal, the ohio supreme court summarized the relevant sense of moral revulsion and horror that one human being could inflict such acts on stated that phillips's father "would break dishes over my head when i did not do them to his neighbors, and former teachers. edminister obtained phillips's school records and reviewed and i'm the authority, i'm the adult, you should respond and when you underwear, which caused him to become sexually aroused. after beating house. smith concluded that "phillips' home was surrounded by crime and violence [and but for counsel's deficient performance, the result of the proceedings would have been additionally, dr. james brown, a defense psychologist who met with mr. phillips, 656 n.e.2d at 659. the question is whether there is a reasonable probability that, absent the errors, the sentencer those with borderline personality disorder], the problem is that they are not and that the children were "always dirty and unkempt." following a visit to the phillips reasonable probability is a probability sufficient to undermine confidence in the according to the aba guidelines on death-penalty representation, which the clearly established precedent as strickland.'" id. (quoting wiggins, 539 u.s. at 522). 105, 652 n.e.2d 205 [(1994)]. interruption, from the time of his birth to the age of nineteen. instead of the rosy and rest. the overwhelming majority of the additional evidence is evidence of physical and cir. 2006); hamblin, 354 f.3d at 493; see also wiggins, 539 u.s. at 537. phillips has repeated the same information he had given to detective falcone on the underwear, and he penetrated her anus with his finger. he also admitted anally raping a remmer hearing at which the court and both counsel questioned all of the jurors and instructions when he and his counsel were not present. the supreme court has held that was a grand juror, and then said something about the phillips case. all ohio st.3d at 300, 754 n.e.2d 1150 [(2001)]. significantly, the existence 2. sufficient evidence supported a finding that phillips raped sheila while william phillips, jr., phillips's brother, testified that he and phillips played together as inadequacy, a simplistic and immature view of the world, but which concluded that phillips whether the jury's finding that phillips intended to kill sheila was supported by sufficient be shown that phillips miraculously was spared the violence to which the other children nonetheless bars [it] from reversing unless the state court's decision is contrary to or an constitutionally adequate unreasonably applies federal law as set forth by the supreme on january 18, 1993, sheila marie evans, age three, died as a result suffer from a mental illness or disorder was due to brown's lack of awareness of the true (quoting strickland, 466 u.s. at 690). [s]trategic choices made after thorough investigation of law and facts at the phillips house, and children were involved. it turned out that donna phillips had been much of the undisclosed mitigating evidence focuses on the abuse of phillips's siblings, mitigation phase of a trial; certainly, phillips's post-conviction counsel do not appear to of cardiovascular collapse due to, inter alia, severe, blunt force trauma to her frequently hit them with little or no provocation. phillips himself "ran away from home on behavior or disciplinary problems at school, phillips was intellectually slower than the other phillips never admitted it. he stated that childhood abuse is the "hallmark" of those who in the mitigation phase of the trial, the jury was presented with a picture of free to rely on dr. cox's opinion that the january 18 beating was the immediate cause determined that sheila had sustained repetitive anal penetrations over a undisclosedmitigatingevidenceisinsufficient toconclude that the state court's decisionwas in 1996, phillips filed a state petition for post-conviction relief, which the trial court a. standard of review with children." as noted, these claims were absurd in light of the jury's conviction. the next year, in 1978, csb received another complaint that the three step-children even if there is deficient performance, there is no constitutionally ineffective evidence counsel failed to discover "adds up to a mitigation case that bears no relation taught him by life-long example that it was appropriate to physically and sexually abuse potential for rehabilitation. outcome would have been different but for counsel's error). amount of evidence that did speak in [the defendant's] favor was not justified by a internal trauma, including hemorrhaging in her stomach, intestine and other several occasions to avoid his father's wrath." phillips also stated that his parents paid for demonstrate a reasonable probability that, but for the alleged error of omitting certain mr. phillips also presented affidavits of a mitigation specialist and a capital or unreasonably refuses to extend a legal principle from supreme court precedent to a new hair, just as phillips would later do to sheila. they should have heard that phillips's in assessing the reasonableness of counsel's investigation, the court considers whether prejudice resulting from ineffective assistance of counsel. even under our modified- csb records, there are no reports that indicate that phillips, himself, was physically which means that the aggravating circumstances must outweigh the mitigating factors in against the walls and dragging her by the hair." in phillips's written statement to the added); see also johnson, 544 f.3d at 603 (finding prejudice where competent counsel jury with a written copy of the jury instructions. the trial judge stated that he presumed reasonable probability that, absent the errors, the sentencer-including an members, none revealed a history of abuse in the phillips household. shame, difficulty with impotence, confusion about the role of sex- conflict, poor tolerance for stress and pressure, self-doubt and inferiority, psychological no. 06-4418 phillips v. bradshaw page 42 unnecessary. see wiggins v. smith, 539 u.s. 510, 522-23 (2003). we must decide "whether although phillips claims he was prejudiced by the omission of the additional phillips claims that he was prejudiced by the following information that should have committed a crime of such shocking atrocity. phillips's culpability undoubtedly would [evans] is seven years older than [phillips] is and is clearly the more mature graduate from high school and join the military. mr. phillips had no prior siblings record any abuse of phillips. unreasonable"). 1999). on remand, the trial court again rejected phillips's petition, and the ohio court of don't, what happened in my household is you get popped, you get punched, proceedings." hartman v. bagley, 492 f.3d 347, 356 (6th cir. 2007). circumstances, i would reverse the district court's denial of phillips's petition for a writ the [defendant's] remarkably traumatic childhood"). sister. nonetheless, counsel failed to learn what the csb files, other than the five to u.s. 510, 522-23 (2003). this obligation exists even if the defendant is reluctant to facts as follows: sheila had died. falcone then asked [phillips] again what had happened to with sadistic and masochistic behavior). mr. phillips reported many of these (ja vol. 11 at 6590.) incidentally, this conclusion is consistent with phillips's otherwise undiscovered evidence would have allowed the jury to better understand how a nineteen- onjanuary19,1993,dr.williamcox,thesummitcountycoroner, corpus, allegingtwenty-fiveseparategroundsforrelief. thedistrict court denied his petition person of low intelligence who was generally considered a good person, but whose pent-up death penalty cases 10.11(f) (rev. ed. 2003)). the commentary to the aba guidelines you're trying to formulate what does all this mean. for borderlines [i.e., phillips argues that the state failed to introduce sufficient evidence to support the examination. [phillips]remained at evans's apartment to care for sheila and person, who was a "salvageable" human being and would do well in prison. that principle to the facts of the prisoner's case.'" id. (quoting taylor, 529 u.s. at 413) himself, and that his refusal to admit such abuse was unsurprising. equipped with an wide range of reasonable professional assistance. [state v.] hartman, 93 "leading the charge on mitigation," it was possible for him to put together "an effective including the significant physical abuse harries suffered at the hands of" his family, as related complications. offense(s) for which the client is being sentenced,'" as well as that which would provide that indicated mistreatment by phillips's father, such as physical abuse of themselves, sexual january 15, 1993, or saturday, january 16, 1993, he had spanked sheila no. 06-4418 phillips v. bradshaw page 41 becomes a sense of this is a threat to me as a person because i'm telling you, himwithhouseholdchores. hazelphillips,phillips'sgrandmother,testifiedthatphillipswas murder, one count of felonious sexual penetration, and three counts of rape. on the nature of phillips's home life is described in the course of nearly two decades stresses of a family situation. although defense counsel was aware that mr. pedophilia, nor was told of petitioner's "probable mixed personality disorder with no. 06-4418 phillips v. bradshaw page 6 a history of violence in school and learning and socialization impairments; and, as suggest that he was the victim of sexual abuse. the research has identified psychologist, thereby providing insight into mr. phillips' mental condition. which they were given access, contained or to provide any of the information in those _________________ anus with some acute, recent changes. dr. izsak's medical team continued disorder." dr. smith testified that dr. brown's prior determination that phillips did not the cause of death is cardiovascularcollapse; due to hypovolemic shock; follows: a "kind" person "who cared deeply for ms. evans' children," state v. phillips, no. age or sex of the child or what the child was doing, the response was always jury's finding that he purposely killed sheila, claiming that he merely lost his temper. and to obtain a mitigation specialist. he argues that, had more background shortly after 10:00 a.m. on the morning of january 18, 1993, fae cognizable prejudice because there was no reasonable probability that the sentencing services records in order to get information both on mr. phillips and the not phillips himself, offers "towering" support for the conclusion that this evidence for the fact that the offender was under duress, coercion, or strong deficiencies," such as emotional immaturity, "underlying hostility and [an] inflexible and sexual activity from a young age as a result of parties his parents regularly held at their ashamed and doesn't know what is right and wrong. in dickerson v. bagley, we found prejudice where counsel's inadequate did not warrant death." strickland, 466 u.s. at 695 []. household items from their drug customers. he informed smith that prostitution was a severe personality disorder, bipolar disorder, or schizophrenia." he reiterated in the department, and taken to an interviewing room. perella read [phillips] his inthehabeasproceeding,phillipssubmittedanevaluationfromclinicalpsychologist application of established supreme court precedent must be objectively unreasonable." phillips as a "nice," "normal" young man, who generally was non-violent and "good with model airplanes. the jury did not hear, however, what the csb records and the phillips's father beat him, beat his mother, broke dishes over his half-sister's head when counsel criminal record; and (6) a statement from phillips in which he expressed remorse for his found prejudice where the jury never heard that petitioner was exposed to group sex and reviewed and described in his notes as "very important" for mitigation purposes, and b. procedural history zelinka, 862 f.2d 92, 95 (6th cir. 1988). "eventuat[ing] a necrosis." dr. eugene izsak, the emergency room physician who was not mentally ill and did not suffer from a personality disorder. - while they were naked, even after they had reached high-school age, leaving bruises that phillips admitted to smith that he had been physically abused by his father. phillips psychologically inadequate person" who is ill-equipped to deal with the described crowe's tone as "heated" or "agitated." three jurors no. 06-4418 phillips v. bradshaw page 33 following the jurors' reports of crowe's contact with them, the trial court held friends. he testified that phillips was always respectful to his elders and that prior to his disorder, post-traumatic stress disorder, or antisocial personality disorder; and the fact under aedpa, to the state court's determination of whether that verdict was supported - counsel. combs, 100 ohio app.3d at 105, 652 n.e.2d 205. based on the and physically harming another student. she also admitted that she knew of at least one brown found no evidence that phillips had been beaten or sexually abused as a child, but he 2 20692, 2002 wl 274637, at *10 (ohio ct. app. feb. 27, 2002), despite the fact that the presented during the mitigation phase. counsel presented the theory that phillips was a unequivocal opinion that phillips had been abused: (ja vol. 10 at 5617.) nor, given that he delegated most of the responsibility for courtroom." (ja vol. 10 at 5617.) when edminister was asked whether, as the person physically abusive [] as long as he can remember and it didn't m[at]ter the to the duodenum had been inflicted at least two days prior to sheila's we turn first to whether counsel for the defendant provided adequate assistance at [phillips's] background was itself reasonable." id. at 523. "a counsel's performance is anonymous caller informed csb that the phillips children were running wild, that donna supreme court held that the evidence presented in mitigation was not paltry, have concluded that the aggravating circumstance did not outweigh the to the contrary was an objectively unreasonable application of federal law, phillips is based on a follow-up interview in 2004 and testified before the district court. kind, helpful, friendly, and good person who never abused drugs or alcohol physical abuse if they revealed to anyone that they were being beaten. however, the notes from what appears to be an interview with the phillips family also indicate that "csb 260 f.3d at 704. thus, after reweighing the evidence, we may only reverse if phillips can listlessness. the beating sheila suffered on the morning of january 18, 1993 abusive and inappropriate. . . . the difficulties mr. phillips has experienced as previously discussed, before a hearing is granted in proceedings death. as a result, he claims that his aggravated murder conviction was unconstitutional. "abusive home environment had a profound impact on [his] psychological mechanic. william, sr. acknowledged physically punishing his children when they were investigate and locate files revealing the petitioner's unstable and abusive home the same. always physical violence. ignored the patent absurdity of counsel's attempt to persuade the jury that phillips was forth in [the supreme court's] cases' or `if the state court confronts a set of facts that are or on the sentence he might receive, but rather on the fear of "get[ting] pumped in the september 14, 1993, the trial court adopted the jury's recommendation and sentenced united states court of appeals abuse and resulting personality disorder. instead of hearing this evidence, the jury heard already was aware. in light of edminister's belief that the true explanation for phillips's telephoned them if he simply wanted to reiterate his earlier statement. they on investigation. in other words, counsel has a duty to make reasonable presented expert testimony that appellant functions with a "low average" cox that phillips's january 18 beating caused sheila's death, in part by rupturing her (5) whether the trial court improperly instructed the jury outside the presence of phillips and a side street and started feeling her breast." she recounted an incident when she was eight assault in the phillips household. (ja vol. 10 at 5610.) edminister explained that he did crime did not outweigh the mitigating circumstances, and if the state court's conclusion calculated to raise reasonable doubt as to whether this young man ought to be put to iii. conclusion thatphillips'sfatherwashavingsexualrelationswith his youngest daughter, tanya. edward ("[d]efendant's resistance to disclosure of information does not excuse counsel's duty smith connected phillips's childhood experiences to his personality disorder, and, sentencing: (1) a psychological report of phillips by dr. brown, which included a diagnosis deficient. see williams, 529 u.s. at 395 (finding it significant in holding counsel's _________________ to his family and neighbors. he denied that he suffered abuse during his childhood. he also pancreaticoduodenal artery and vein; due to blunt force trauma, complainant noted that william, sr. did not abuse his own children in the same manner. the phillips argues that sheila died not from his beating on january 18, but from smith diagnosed phillips as suffering from a mixed personality disorder with for postconviction relief upon a claim of ineffective assistance of trial court's conduct was not contrary to or an unreasonable application of smith v. phillips phillips raped sheila on the morning of her death was supported by sufficient evidence; (3) no. 06-4418 phillips v. bradshaw page 22 context." id. at 494 (quotation marks and citations omitted). the aedpa standard of review only applies to claims that were "adjudicated on the merits in state court failed to provide dr. brown at the penalty phase, offers a compelling argument as to why in addition to the csb reports, phillips's three half-siblings submitted affidavits contacted by phillips's trial counsel. tracy confirmed in her affidavit that phillips's father phillips, 656 n.e.2d at 661 (internal citations omitted). on habeas review, the district disorder beyond his personality disorder, such as bipolar disorder or post traumatic stress who had been sexually abused as children, that phillips had been sexually abused investigationsunnecessary. inanyineffectivenesscase,aparticulardecision any previously introduced mitigation evidence, that theaggravatingcircumstancesofthe sweeney, law office of timothy farrell sweeney, cleveland, ohio, ruth l. third, he claims that the evidence does not support a finding that he intended to kill (finding deficient performance where counsel failed to read files obtained from a state phillips on four occasions, interviewed his parents, and administered supreme] court has on a set of materially indistinguishable facts.'" howard, 405 f.3d been a "fatal injury if left untreated." however, dr. cox opined that the beating sheila pumped in the butt." perella responded that "not everybody who gets disorder. id. this body of evidence is not materially different from the evidence in crime, a world in which violence, criminal activity, and physical and sexual abuse of uncomfortable and confused and frightened by some of the things she the prosecutor and a csb attorney and was given access to only five files, none of which he generally, to obtain review of a defaulted claim, a petitioner must demonstrate cause for - at a result different from [that] precedent.'" id. at 493-94 (quoting williams v. taylor, 529 was attending sheila's autopsy at the time [phillips's] call was received and a viable mitigation strategy. see rompilla, 545 u.s. at 393 (finding prejudice where the information on mr. phillips. he avers that, had a mitigation specialist been a nice boy he was. [the crime] was so completely totally out of character. so then how controlling his hostility but no personality disorder or mental illness. 538 f.3d at 499. no. 06-4418 phillips v. bradshaw page 44 at 705. circumstances, applying a heavy measure of deference to counsel's development." id. at 499-500. similarly, in hamblin, we found that the petitioner was mitigating evidence" adduced at trial and in post-conviction proceedings. wiggins, 539 u.s. crowe's remarks and their own obligation to be fair. first, when crowe prior injuries would have led to sheila's death by themselves if they had not been this requires showing that counsel made errors so serious that counsel was there is concern about reprisal within the family. oftentimes, the child 714 n.e.2d 905 [(1999)]; see, also strickland, 466 u.s. at 687 []. phillips's counsel, kerry o'brien and michael edminister, were alerted to the "frustrated very easily[,]" lived with feelings of insecurity, inadequacy, and inferiority, and (but i hit shelia [sic] a lot) i was very mad at shelia [sic] because she phillips's father, william, sr., testified that phillips was a good child with many previous day. the detectives questioned [phillips] as to why he had wholly unbelievable picture phillips's counselpresented, the jury should have heard that information been obtained by his counsel, a reliable psychological no. 06-4418 phillips v. bradshaw page 7 only. aggravating evidence presented in this case includes the particularly heinous way in which deficient investigation failed to uncover evidence of "harries's traumatic childhood, decision `was contrary to, or involved an unreasonable application of, clearly established evidence, the majority of the additional evidence contradicts the theory that his counsel the effect of the positive pieces of mitigation evidence, such as the fact that phillips had itappearsincontestible that the jurors would have viewed phillips differently had juror would have reached a different result. see id. at 537. in analyzing the aggravating cir. 2005). and his brother suffered as a way of life, and where evidence of the defendant's abusive siblings. we know that the household is involving [sic] alcohol and drug investigation failed to reveal that the petitioner functioned only slightly above the his decision to call phillips's father to testify at the penalty phase, "we were grasping, the law; relationships, especially his sexual relations, strongly suggest that he was and witnessing this abuse undoubtedly would have left its mark. but, in a household of provides no reason to disbelieve, that the trial judge merely provided the jury with a generated amounts to constitutionally deficient performance. see williams v. taylor, after phillips raised this issue again in his post-conviction petition, the ohio court deficient if he committed errors so serious that he was not performing at a reasonable decided and filed: june 1, 2010 disobedient. on cross-examination, he admitted that he had been convicted for obstruction experienced repeated frustrations in his life," which caused his "anger [to] build[] up so that no. 06-4418 phillips v. bradshaw page 20 testified that sheila's anus was penetrated with an object significantly larger than a health professional with this information would not have supplied the court with a reasonable probability of a different sentencing outcome is simply untenable. "in assessing prejudice, we reweigh the evidence in aggravation against the totality of the been introduced as mitigating evidence: (1) csb records that indicated physical abuse of where, taken as a whole, the available mitigating evidence `might well have influenced the another. it is for precisely this reason, however, that knowledge of phillips's appalling inexplicable fact that phillips, with encouragement from evans, had raped a three-year- the children in one's care. viewed in relation to this evidence, phillips's crime, 1 remarks: he had followed this course on this occasion. the record therefore shows, and phillips hudson v. jones, 351 f.3d 212, 216 (6th cir. 2003). at some point during the interview, [phillips] was informed that sheila bruised her eye and cut her lip when she fell down a flight of stairs. (1997), 80 ohio st.3d 390, 399, 686 n.e.2d 1112. a review of the record penetrated by a penis rather than by a finger or some other foreign object. bipolar disorder, but stated that, before he could "complete a valid and old girl. finally, he could have testified, based on clinical experience, to the likelihood in determiningwhether sufficientevidenceexistedtosupportajury'sconviction, (alteration in original). "a state adjudication is not `unreasonable' `simply because [a penetration. based upon the presence ofcontusions and lacerations, dr. cox they had been beaten badly. however, the caller stated that the children were afraid to tell confirmed the regular beatings that william, sr. inflicted on his children, stating that he that there's any abuse in the home. they are filled with guilt, shame, subjects made him difficult to assess. in his initial written report, smith noted that phillips cir. 1995) (concluding that counsel's failure "to make any significant preparations for sheila's death. detective ronald perella, a detective assigned to the case, would have discovered the mitigating evidence that would have allowed the jury to phillips's siblings made for an unpleasant living environment, they do not tip the had struck her in the face. in 1988, a caller informed the csb that a drug raid was occurring _________________ phillips's siblings, unsanitary conditions of the phillips' home, drug abuse by phillips's no. 06-4418 phillips v. bradshaw page 47 decision not to introduce evidence of phillips's abusive childhood environment because grandmother, mother, father, brother and neighbor described appellant as a reversing the state court's decision. sufficient evidence from which a jury could reasonably find a purpose to kill." id. the for the foregoing reasons, we affirm the district court's denial of phillips's court. federal law, as determined by the supreme court of the united states.'" murphy, 551 f.3d allegation that phillips's father, william sr., was sexually abusing tanya, phillips's abused, find various inappropriate behavior very arousing and many of the individual with below average intelligence, who was unable to cope with the no. 06-4418 of her death he became sexually aroused when he realized she was not wearing the new evidence that phillips could have introduced is the opposite of phillips's father physically disciplined phillips, along with the three step-children. she also verbally confessed. shortly after he completed the written statement, actions. who, as he described it, is very very, intriguing but he's sort of the acts or omissions of counsel that are alleged not to have been the result of reasonable children who come from an abusive home, their first response is to deny lot, hit hard, when hitting her i hit all over her body, and also threw her described it, she would fondle him as he would touch sheila so that would for three reasons, this conclusion was an objectively unreasonable application of the stated that phillips "came off much more like a 12-year old." brown testified that it was "a was provided with food, beverages, and several breaks. psychologist, dr. james brown, to evaluate phillips, and the court allowed phillips's counsel hemorrhaging on microscopic sections of sheila's anal region, uterus, and urinary their own backgrounds, their own history of being physically and sexually specialist did not address mr. phillips' case but rather described effective third, the state court was objectively unreasonable in finding that the mitigation occurred. the testimony of a fully-informed psychologist who could attest that phillips was nothing to work with, nothing. i mean, you know, everybody we talked to said . . . what himself acknowledged, "i suspect that i may have failed [phillips] in not being more [sentencer's] appraisal of [the petitioner's] moral culpability.'" jells v. mitchell, 538 f.3d sheila was transported to the operating room after spending approximately because of the dysfunction they experience so they become reactionary, displayed a "level of defensiveness [that] is indicative of severe family dysfunction and an 492 u.s. 302, 319 (1989) ("evidence about the defendant's background and character of alternative or additional mitigation theories generally does not establish paramedics from the city of akron responded to the 911 call within disorder, the jury would have been offered an explanation for this "shocking atrocity"--for this otherwise games. counsel also introduced evidence that, despite being raised in a high with chores. she stated that phillips never drank, smoked, or used drugs. while he had no presented at trial, that he purposely caused sheila's death while "committing or parents, and an overall hostile living environment; (2) affidavits fromphillips's half-siblings of habeas corpus on this score. they would have heard that prostitution was common on the street in front of phillips's around, by trying to cool down. not knowing how many times i hit her. years old and her step-father exposed his erect penis to her. she stated that he "used to grab "`without extended discussion,'" we apply a modified form of aedpa review. see psychological tests, testified that mr. phillips was an emotionally immature issued with the federal habeas court's permission, the trial judge stated that he did not sustained two days later, on january 18, "ended up rupturing this already necrotic speculation--speculation that is not only without factual support in the record, but is actually contrary to court rejected phillips's arguments, ruling that sudden rage does not negate an intent to phillips'smitigationwitnesses,includinghisconvicted-felonparents, admitted on cross- caseworker made a visit to investigate, she could not verify any abuse, but she described hitting her, throwing her against the walls, and dragging her by her hair. defendant has the burden of proving actual juror bias; and (4) juror testimony at the assistance-of-counsel claims, we must first determine whether counsel's performance professional judgment.'" williams v. coyle, 260 f.3d 684, 703 (6th cir. 2001) (en banc) medical evidence presented at trial supported the jury's finding that this beating tkacz, ohio public defender's office, columbus, ohio, for appellant. sarah a. absent trial counsel's allegedly deficient performance, the sentencer would vomited several times. of a defendant's background was deficient, see williams, 529 u.s. at 396, defense first, the defendant must show that counsel's performance was deficient. no. 06-4418 phillips v. bradshaw page 16 support for subsection seven. this would arguably have been inconsistent with some of the under ohio revised code 2903.01(b). he challenges the sufficiency of the evidence gathering records to a private investigator--one who, because of counsel's limited dr. brown, whom counsel provided with a summary of the case and phillips's who, according to counsel, was the only available option with the resources available. 478, 498 (6th cir. 2008) (quoting williams v. taylor, 529 u.s. 362, 398 (2000)) (alterations furthermore, when a defendant challenges a death sentence, the appropriate rational trier of fact could have found the essential elements of the crime beyond a resuscitation to [phillips]. [phillips] in turn attempted to revive sheila until kill, that phillips's attempt to save sheila came more than an hour after the beating and that on the day of her death she suffered numerous internal and external injuries from margaret bradshaw, warden, smith stated his belief in his initial report that "mr. phillips's disorders were directly related relevant to plausible options are virtually unchallengeable; and strategic to find that phillips was prejudiced by counsel's failure to present to the jury the violent no. 06-4418 phillips v. bradshaw page 17 occurred on the assurances of phillips's parents, as the abusers themselves cannot be police station in order to speak with the detectives who were investigating attesting to the violence and sexual abuse committed against them. mary phillips stated that shame, difficulty with impotence, confusion about the role of sex- enmeshed due to intraperitoneal hemorrhage, hemorrhage into the soft tissue of the believing that the defendant's grandmother raised him properly and provided him with provocation; _________________ to the few naked pleas for mercy actually put before the jury"); morales v. mitchell, 507 background, his counsel attempted to show he deserved a second chance at life. in contrast, already-injured intestine. phillips, 656 n.e.2d at 656. the district court reached the little surprising" that phillips had committed this crime, since he had managed to avoid any no. 06-4418 phillips v. bradshaw page 8 the investigation supporting counsel's decision not to introduce mitigating evidence of motionless, pale and cold. he then lifted sheila and carried her downstairs if it "fell below an objective standard of reasonableness." id. at 688. strickland held that: recall receiving this note but that his usual response to such a request is to provide the he explained that evans then encouraged phillips to begin molesting and eventually rape during the beating, [phillips] noticed that sheila was not wearing bowel." this testimony does not conflict with dr. izsak's testimony, and the jury was testified that phillips's borderline personality disorder inclined him toward both anger and no. 06-4418 phillips v. bradshaw page 38 phase. thisuntimelinessfurthersupportsthe conclusion that counsel's performance was conclusion of his examination of the jurors, the trial judge stated that he death. detective ronald perella of the akron police department testified that phillips in the household were repeatedly and brutally subjected, growing up in this environment law and facts relevant to plausible options are virtually unchallengeable.") (emphasis no. 06-4418 phillips v. bradshaw page 3 conducted an autopsy on sheila. during his external examination of sheila, could not outweigh the aggravating evidence in the minds of the jury. even were it to in sum, this case is well within the range of this court's precedent finding present this mitigating evidence to the jury, phillips's counsel failed to meet the defendant's background or make a reasonable decision that such investigation is the defendant's life). had counsel fulfilled their constitutional duty, the jury would have mitigating evidence adduced at trial and in post-conviction proceedings. wiggins, 539 u.s. sure what it means. . . . what they end up doing is reacting in a sort of inferiority and feelings of incompetence," "psychological inadequacy," and an "extremely no. 06-4418 phillips v. bradshaw page 36 abdomen. at the time, sheila's mother, fae evans, was dating and defendant's criminal proceedings; such an absence is constitutional error even without they failed to learn of it. see wiggins, 529 u.s. at 521, 528, 533; williams, 529 u.s. at phillips's counsel had met these professional standards, they would have learned of the some csb records relating to the phillips family. at the csb office, edminister met with jury instructions does not. see hudson, 351 f.3d at 217. providing the jury with a phillips further demonstrates the unreasonableness of accepting his assurances--despite antisocial, narcissistic, and obsessive features," nor of the likelihood he had organic at 493 (quoting 28 u.s.c. 2254(d)(1)). "a state-court decision is contrary to clearly _________________ in reviewing claims of juror bias in the habeas context, we bear in mind that: (1) second, the knowledge that csb had come to the phillips home to investigate an , abuse the[y] suffer and fail to recognize that the behavior of their parents is post-traumatic-stress disorder, although phillips's refusal or inability to discuss certain recalled anything helpful or damaging" contained in the file.); harries, 417 f.3d at 638 on the other hand, mr. phillips' petition subscribes to an alternative inexplicable brutal rape and murder of a three-year old girl. in our opinion, this reasoning suffers from for the sixth circuit 395; strickland, 466 u.s. at 689-91. second, even had counsel learned of the evidence, parents, grandparents, siblings, and children.'" see hamblin v. mitchell, 354 f.3d 482, constitutional responsibilities, at least one member of the jury would have found that the parents' home, his resulting personality disorder, his violent and sexually deviant undertook a much more thorough examination than dr. izsak, who merely examined have placed greater reliance on dr. cox's opinion. counsel's performance was deficient. see smith v. spisek, -- u.s.-- , 130 s.ct. 676, 685-88 at 534-36; see rompilla v. beard, 545 u.s. 374, 393 (2005). "prejudice is established to establish prejudice, phillips must show that a reasonable probability exists that, common on the street in front of his childhood home and that he was exposed to drug use to his grandmother's apartment. hazel phillips, [phillips]'s grandmother, dr. brown testified that phillips came across as "a rather simple, emotionally consequences of not obeying authority were clearly delineated. brown opined that phillips mitigation that edminister would have discovered had he pursued the leads of which he physical and sexual abuse going on. as a child, you're watching all of that, smith opined in his report that that the abuse johnson suffered caused his mental illness and that such a psychologist evidence about his childhood because his counsel failed to investigate the red flags as the majority notes, to obtain relief under the prejudice prong of strickland, the jury that recommended phillips be sentenced to death, however, heard little smith also testified that it is common for men, even well into adulthood, to deny - forth in jackson, the ohio supreme court's denial of this claim was not unreasonable. finding was not an unreasonable application of or contrary to the sufficiency-of-the- abuse. we know there's drugs being sold out of the home. we know there's during the penalty phase of trial, mr. phillips' counsel presented the standard . . . was unreasonable or its decision contrary to the standard." williams v. coyle, their awareness of prior csb involvement with the phillips family--that no abuse had the murder was committed, that is, the brutal beating and anal rape of a three-year-old girl. (6) if the offender was a participant in the offense but not the principal good character and called dr. brown to testify about phillips's "character deficiencies." phillips's mother and father. however, the records are less conclusive as to the presence aggravating circumstances of phillips's crime did not outweigh the mitigating met this burden. there would have been no strategic benefit to choosing not to present it. informing the walked into the girls' bedroom and found sheila lying on her bed file name: 10a0155p.06 also detailed that the blows to sheila's abdomen had resulted in severe toindependently investigate."). o'brien andedminister's admissionthattheydistrusted phillips' family history was less than ideal, counsel chose to downplay those no. 06-4418 phillips v. bradshaw page 4 at approximately 3:00 p.m. on the day sheila died, detective jan sexual abuse of phillips's siblings, namely, his half-siblings. there was evidence that "an`unreasonableapplication'occurs when`the state court identifies the correct the csb records indicate that phillips's half-siblings were physically abused by - abuse to mary and tracy, and possible sexual abuse of phillips's sister tanya; and (3) a mitigating evidence phillips's counsel already presented under this factor. while this recommended for full-text publication "fell below an objective standard of reasonableness" and so was constitutionally 526. dr. smith testified that a clear connection existed between phillips' abusive life in his operative facts establishing that there was a reasonable probability that, many of these behaviors. materially indistinguishable froma decision of [the supreme] court and nevertheless arrives crime area and having immediate family members with criminal begun preparing significant portions of their mitigation case until during or after the guilt he been provided "a more complete picture of [the defendant's] background--namely, court found that the ohio supreme court had reasonably applied federal law in denying from schizophrenia and psychosis. 218 f.3d 581, 600 (6th cir. 2000). in coleman, we tracy in the face." also in 1983, eddie reported to csb that his stepfather had twice pushed reasonable doubt. see jackson v. virginia, 443 u.s. 307, 319 (1979); tucker v. palmer, see maldonado v. wilson, 416 f.3d 470, 476 (6th cir. 2005) (quoting harris v. stovall, pub. l. no. 104-132, 110 stat. 1214 ("aedpa"), we may grant the writ "with respect to a [sic] he's aroused or finds it sexually interesting, but he's still confused and relationship and where he was called the "the moron" and surrounded by "pimps, bagley, 544 f.3d 592, 599 (6th cir. 2008). "[i]n judging the reasonableness of the no. 06-4418 phillips v. bradshaw page 46 dissent telling the truth. i don't think you snapped. i think you are some underlying psychotic "eddie" (born in 1968). she then married phillips's father, william, sr., with whom she had standard for determining whether prejudice resulted "is whether there is a testimony of mr. phillips' grandmother, mother, father, brother, and abused. likewise, the affidavits of phillips's half-siblings indicate that they were the within the rectum, dr. cox further concluded that sheila had been anally > by habeas counsel and described above, there was a wealth of material available for police, he admitted that he: children were the status quo--is critical in assessing his culpability and determining the crime lay in phillips's psychological condition, no reasonable counsel in edminister's and thrown him onto a bench, causing a red mark and difficulty moving the arm. at that county child services bureau ("csb") records beyond the five files that edminister excuse counsel from performing an independent investigation. see rompilla v. beard, "we had absolutely nothing to work with, nothing." see johnson, 544 f.3d at 604 the penises of the male children in the home while wrestling with them. he stated his belief along well together and routinely went on family camping trips and played phillips alleges its omission was due to ineffective assistance of counsel. fights with phillips and was emotionally abusive toward him. mary stated that she was never phillips's counsel did perform some investigation into potential mitigating factors. littered with dog feces and crawling with cockroaches. they would have heard that his falcone, an officer with the juvenile bureau of the akron police is not a requirement of effective assistance of counsel. state v. mcguire established federal law `if the state court applies a rule that contradicts the governing law set rampant and indiscriminate violence, it beggars belief to suggest that phillips was so unreasonable application of strickland under the modified-aedpa standard. "a actions in this case reveal that they understood both the impropriety of d. comments by a grand juror we ask whether, viewing the evidence in the light most favorable to the prosecution, any petition after the effective date of the antiterrorismand effective death penalty act of 1996, we found prejudice based upon evidence that jells's counsel had failed to present that (1997), 79 ohio st.3d 514, 530, 684 n.e.2d 47. moreover, debatable trial is not substantially different from the evidence presented during the penalty phase. see sheila, [phillips] stated he put vaseline on her anus and inserted his fingers. clayton, 62 ohio st.2d at 49, 402 n.e.2d 1189 [(1980)]. this court must have been sexually abused by his father and that this caused him to suffer from a borderline personality alternative mitigation strategy. in making this conclusion, the state appeals court [phillips] then confessed that on the morning of january 18, 1993, he "lost or alcohol and who cared a great deal for all of fae evans's children"; (4) evidence of choices made after less than complete investigation are reasonable precisely a juror; (2) no presumption of prejudice arises from the unauthorized contact; (3) the 18 caused her death majority, in weighing the aggravating evidence against phillips, can describe his crimes as mr. phillips contended, and failed to support a claim of ineffective but granted him a certificate of appealability ("coa") on six claims. phillips v. bradshaw, the extent of the abuse he endured. this protection of "family secrets" is v. conduct an investigation that would have uncovered extensive records graphically satisfaction." according to mary, phillips's father "used to beat my sister, tracy, and me immature, psychologically inadequate person" who harbored "a lot of anger[,]" felt bleeding. based upon his observations, dr. klein determined that the injury and delinquency adjudications; prepared a handwritten statement detailing the events to which he had may trigger it . . . ." such evidence was useless to a jury seeking to understand why a because he was denied the effective assistance of trial counsel in the affidavits of phillips's half-siblings reveal: that he was surrounded by violence, without fulness [sic] of his opportunity to defend against the charge. . . . [the] of physical abuse of phillips's full siblings. most importantly, in over fifteen years of psychological evaluation of mr. phillips and his attorneys could have developborderlinepersonalitydisorder,andthat "[phillips]had the same code ofsilencethat (internal quotation marks omitted). in harries, we found prejudice where counsel's had frequently beaten her. counsel's absence during this event. the ohio supreme court's decision denying this bladder. phillips argues that this testimony was implausible. he also relies on testimony "anger [to] build[] up so that it comes out and it seems way out of proportion to what previous occasions. he recalled one incident in which sheila fell on a caused the already necrotic and gangrenous duodenum to rupture. dr. cox court agreed. see phillips, 2006 wl 2855077, at *20-21. aggravated murder was supported by sufficient evidence; (2) whether the jury's finding that beating her on the day of her death members of the petit jury in his case deprived him of due process and a fair trial. in relationship with evans, and, eventually, his crime. beuke v. houk, 537 f.3d 618, 645 (6th cir. 2008). by dr. izsak, who concluded that sheila had been anally raped in the past but could not no. 06-4418 phillips v. bradshaw page 10 phillips may suffer from a variety of psychological disorders, including sara. evans returned to the apartment at approximately 11:25 a.m. and supreme court has used in determining whether penalty-phase counsel's investigation by sufficient evidence. see parker v. renico, 506 f.3d 444, 448 (6th cir. 2007). the id. (citing woodford v. visciotti, 537 u.s. 19, 24-25 (2002)). since the state court's criminal record and was nineteen years old at the time of the murder. behaviors. related charges, and various drugs and weapons were seized from the house. csb reported no. 06-4418 phillips v. bradshaw page 37 present here. . . . old food and dirt." the children "looked hungry and not very well nourished." (id.) apsychologist'sspeculativeexplanationwouldhavebeen so mitigating of phillips's culpability as to create at phillips's mitigation hearing before the jury, counsel called several witnesses to containing sufficient operative facts that demonstrate a substantial violation criminality of his conduct or to conform his conduct to the requirements of describingwilliams' nightmarish childhood, not because of any strategic calculation but in original). there is no prejudice if the newly available evidence is merely cumulative or person. ronald is still living at home, still attending high school, has had phillips claims that comments made during a court recess by a grand juror to in three ways: first, he claims that the evidence does not support a finding that his telephoned the 911 emergency operator, reported that sheila was not crowe. the court concluded, based on the jurors' actions and assurances, that they mitigation specialist, who would have gathered complete background claim was neither contrary to nor an unreasonable application of gagnon, 470 u.s. at his] family was enmeshed in this criminal element and served as role models for violent the penalty phase of phillips's trial because we see this as the central issue in this appeal. argued: timothy f. sweeney, law office of timothy farrell sweeney, mitigation theories generally does not establish ineffective assistance of appeals [in post-conviction proceedings] for compliance with aedpa." see johnson v. the quantum of evidence known to counsel should have led to further investigation). decision of the state court is `contrary to' clearly established federal law `if the state illegally selling the prescription drug ritalin. both parents and mary were arrested on drug- backgrounds, mr. phillips made a conscious choice to abstain from drug and aedpa review, i find that the state court unreasonably applied strickland when it failed rights guaranteed by the fifth, sixth, eighth, ninth, and fourteenth psychological evaluation of a psychologist who was provided with more phillips's counsel admitted regarding the evidence they presented at the penalty stage, mitigation evidence would have led to a different result. wiggins, 539 u.s. at 537. "a siler, j., delivered the opinion of the court, in which mckeague, j., joined. had felony convictions. the report stated that phillips showed signs of "character 212 f.3d 940, 943 n.1 (6th cir. 2000)). the modified-aedpa standard of review snapped did not make sense. the falsity of this story became even more apparent when found [phillips] sitting in the kitchen. soon thereafter, evans called out to raped sheila in the course of the killing. see phillips, 656 n.e.2d at 656. the district no. 06-4418 phillips v. bradshaw page 40 [phillips] also told falcone that sheila had been injured on several (3) whether, at the time of committing the offense, the offender, because of areas including sheila's head, and that the "severe, protracted nature of the beating also evident." petition. time of the crime, and that he suffered from dyssocial reaction and mixed personality the abuse of her own child, and that her sway over phillips was due to his own childhood report summarizing his findings. it noted that four of phillips's siblings "exhibit rather before: siler, cole, and mckeague, circuit judges. even assuming that he could show cause, he identifies no prejudice stemming from his fromcounsel'sineffectiveness.[statev.]calhoun, 86 ohiost.3d[279,]289, that "[t]he use of such substantial force by an adult on a three-year-old victim is certainly hearing in addition to appellant's unsworn statement. appellant's as open to various sexual activities and that they may take advantage of that." deserves." one thought she said: "the worst case that i was on was the in turn, to his crime. he testified: him, had pulled his hair, and had beaten him. on a visit to the phillips home in 1983, a csb jury of the disadvantages phillips faced in his everyday life only could have increased because he thought there was no chance of such a motion being granted: in his words, a stable life, when in fact both she and the defendant's mother provided the defendant edminister did not "remember even talking to dr. brown until he walked into the neighbor. through their testimonies, counsel attempted to show that mr. evidence actually presented at sentencing."2 phillips is not excused from showing prejudice because the incident at issue was strickland, 466 u.s. at 690 ("[s]trategic choices made after thorough investigation of judgments. the evidence adduced with the petition supports this alternative mitigation issue, which requires us to assess "whether the ohio court's application of the strickland picture of his culpability. by failing to investigate these leads and to discover and it" and repeatedly hit sheila. [phillips] explained that he had called sheila edminister himself acknowledged that the portrayal of phillips as a good kid who slapped, hit, you get beat because you do what you're told to do. (quoting taylor, 529 u.s. at 411) (alteration in original). "instead, the state court's such that "`[r]ecords should be requested concerning not only the client, but also his two years later, in 1980, when phillips was six years old, csb received a call was at a loss as to what strategy he could pursue: "in this kid's case, we had absolutely grader he watched as his parents and half-sister were arrested in a drug raid at his home. person could have done what phillips did. and abusive childhood revealed by the csb records and his half-siblings' affidavits, or sometimes needs to be used, that people are constantly attempting to exploit others, and decision applied clearly established federal law erroneously or incorrectly.'" id. dr. smith noted the existence of circumstances which, when viewed in light of other sexual abuse victims' assumed to be forthcoming about their own past crimes; nor did phillips's own reticence 534-36. phillips demonstrates prejudice if a reasonable probability exists that at least one had occurred approximately forty-eight hours prior to her death. during that as previously stated, we are applying a modified form of aedpa review on this sexual relationship. she becomes pregnant and they now are forming this substantive violation of his trial counsel's essential duties. see calhoun, 86 "`without extended discussion,'" this court applies a modified form of aedpa review. embarrassment. there's concerns about what other people will think. injury if they reported the abuse to csb. the complainant told csb that the "children are would have given rise to a viable mitigation theory where none otherwise existed. yet reporting that the three step-children were "always being beaten" and that the previous day did not "feel particularly connected with any people[.]" brown told the jury that "phillips was not mentally ill and did not suffer from a personality disorder; (2) expert testimony from or sexual abuse, a violent upbringing, or abject poverty"). the evidence withheld from students. on cross-examination, donna admitted that phillips had been suspended from phillips to death on the aggravated murder conviction and to life imprisonment on each of phillips contends that the trial court erroneously gave the jury supplemental who breaks the code of silence will be rejected and shunned by other found that phillips manifested a poor tolerance for stressful situations. he explained that time, phillips's father was living at the home sporadically, and a total of fifteen people were the victim of sexual abuse. the research has identified several his counsel; and (6) whether trial counsel rendered ineffective assistance during the contrary to this evidence, phillips argues that sheila's death was caused by an mitigating factors beyond a reasonable doubt. 1977, when phillips was three years old, csb received a complaint that phillips's father was would have described to the jury "the cycles of generational abusive and neglectful csb to warn that "[w]hile living in pittsburgh, the three older children were frequently that, at this time, the phillips home was in "an extremely filthy condition" with "a rancid b. ineffective assistance of counsel about her head, face, upper and lower torso, arms, legs, and genitalia. he application of federal law, williams v. coyle, 260 f.3d at 704. for the following reasons, a normal boy who was generally obedient and helped her with chores around the house. intense abdominal pain, an inability to eat, vomiting, a high temperature, and do you develop mitigation . . . ?" (ja vol. 10 at 5614.) as edminister stated regarding a willingness to engage in deviant sexual activities encouraged by evans: phillips's claim. demonstrated any juror bias. the ohio supreme court's decision affirming the trial finger on the day of her death. he was able to determine this by examining the signs of no. 06-4418 phillips v. bradshaw page 45 on direct appeal, the ohio supreme court recited these facts: the only evidence in the record of sexual abuse of phillips was the testimony of dr. smith, who considerations above. respondent-appellee. that her step-father "used to sexually fondle tracy and me. once, he took tracy with him to the extent that reasonable professional judgments support the limitations f.3d 916, 951 (6th cir. 2007) (noting that we have "found prejudice when the jury was and vein, associated with compromise of the superior the caller also believed that there were knives and guns in the house. when a csb complete mitigating evidence. tactics generally do not constitute ineffective assistance of counsel. [state v.] main recipients of abuse by phillips's father. only minor accounts by phillips's half- indicted appellant, although she had not. all five of the jurors indicated duodenum, complicated by perforation of the superior mesenteric artery beating his step-children, grabbing them by the throat, and threatening them with additional no. 06-4418 phillips v. bradshaw page 34 for example, counsel presented mitigation evidence focusing on the petitioner's quiet, evidence; (4) whether members of the jury were inflamed by the statements of a grand juror; to hire a mitigation specialist. counsel retained the services of a former akron police officer the default and prejudice resulting from it. see murphy, 551 f.3d at 502. however, in deciding to retain the jurors and proceed with the trial. id. the ohio supreme court the state court, in concluding that counsel's performance was not deficient, concluded that the jurors were unbiased by the contact, and had not abused its discretion the area and reported the contact to the bailiff. thereafter, each juror phillips was a kind and caring person, who was always trying to help his f.3d 478, 478 (6th cir. 2008) (finding deficient performance where counsel failed to while he thought about raping sheila on the day of her death, he did not do so. dr. cox (2010) (assuming counsel's performance was deficient, but holding that it did not result in [a] juror's belief in his or her own impartiality is not inherently suspect sheila, and therefore knew everything that had happened to her. criminal acts that are attributable to a disadvantaged background . . . may be less siler, circuitjudge. ronald phillips was convicted of rape and aggravated murder bears a striking similarity to that at issue here: jells's mother was an alcoholic; jells saw or lessen the client's culpability for the underlying offenses.'" johnson, 544 f.3d at 599 evidence that counsel failed to discover would have provided only an additional or committing or attempting to commit rape. o.r.c. 2903.01(b). i. counsel's performance was deficient half-sisters against the wall to punish them and grabbed phillips's half-brother by the to the instant offense." in his testimony, he elaborated, explaining that "[a]n individual with the ohio supreme court rejected this claim, concluding that dr. cox's testimony was b. affidavits of phillips's half-siblings their houses with the proceeds of drug sales and purchased shoplifted food, clothing, and phase was not handled properly by defense counsel. the capital litigation counsel should consider introducing evidence "`that would be explanatory of the in recess, was already outside when the jurors in the instant action of what might otherwise have seemed impossible to the jury: that evans, like other . . . ceased after that exchange, and [phillips] left the police station. in total, the written confession, interviewed phillips on four occasions and performed at least two psychological tests on him. he also interviewed phillips's parents. he prepared a five-page reasons, we affirm the district court's denial of phillips's petition. in sum, the state court's determination that phillips's representation was the difficulties mr. phillips has experienced with his interpersonal files to dr. brown, the psychologist charged withexamining phillips. in fact, edminister outcome." strickland, 466 u.s. at 694. thus, if there is a reasonable probability that a accurate picture of phillips's background, dr. smith also could have testified, as he did prejudiced when his counsel failed to present evidence of an unstable and deprived lack of prejudice an unreasonable application of strickland. see williams v. coyle, 260 f.3d it's very unfortunate, but in working with [homeless, chemically dependent, the trial court examined each of the jurors and crowe. two jurors heard 487 n.2 (6th cir. 2003) (quoting aba guideline 10.7 commentary at 80-83). if from the severe, blunt force trauma to her abdomen, and the numerous denied his petition for a writ of habeas corpus under 28 u.s.c. 2254. for the following that illegal activities are often to be admired." 460 f.3d at 804-05. the other evidence sheila was not breathing and had no pulse. the first physician to examine his counsel's failure to request summit county children's services records introduced the fact that appellant did not have a juvenile or criminal record, numerous other decisions support the conclusion that counsel's deficient psychologists provided with an accurate description of jells's history concluded, jells's i. background several characteristics of victims of sexual abuse (e.g., feelings of guilt and themselves, [their] abilities and their role and misperceptions about other people and their phillips admitted to the police that he severely beat sheila on the day of her - abuse, neglect and hunger were normal," in addition to evidence that petitioner suffered phillips also argues that no rational jury could have found, based on the evidence phillips may not have shared this information. in his words, fact that he suffered from a mental illness that may have been bipolar disorder, anxiety dr. cox documented more than one hundred twenty-five bruises, many of no. 06-4418 phillips v. bradshaw page 13 most of the additional evidence was not cumulative, see beuke, 537 f.3d at 645, it would not 2002). the ohio supreme court denied phillips's request for further review. state v. i was grasping at straws in an attempt to try and pull together any live bodies that could at the habeas phase, that phillips suffered from at least borderline personality disorder, remarks fatally compromised the jury's impartiality. in 1984, a caller reported to csb that in addition to physically abusing the older no. 06-4418 phillips v. bradshaw page 5 came out inquiring about possible sexual abuse of william, sr. on daughter tanya," but about two days before her death that compressed her duodenum, a part of the intestine, death."). attempted to resuscitate sheila show that he lacked the intent to kill. the ohio supreme "used to throw tracy, mary, and me up against the wall." he recounted an incident when home and that he was exposed to drugs and sexual activity at a young age because of v. phillips, 455 u.s. at 217. interpreting smith v. phillips and remmer, we have held not to investigate must be directly assessed for reasonableness in all the the sentencing phase until after the conclusion of the guilt phase . . . was objectively no. 06-4418 phillips v. bradshaw page 39 ii. analysis see hill v. mitchell, 400 f.3d 308, 319 (6th e. phillips's claim that the trial court instructed the jury in his absence simplistic and immature view of the world." however, dr. brown concluded that phillips common among children of abuse. they tend to blame themselves for the at that point, [phillips] asked sergeant dye to leave the room so that cleveland, ohio, for appellant. adam michael van ho, office of the ohio [phillips] complied, was driven to the juvenile bureau of the police environment in which he was raised and 2) neglected to request funds for a phillips's counsel presented evidence on the mitigating factors listed in subsection we conclude that phillips has not met this burden. the petitioner were more severe than in this case, we found prejudice because the jury plausible: "you tell me how you explain to your client that . . . i don't believe you're step-daughter admitted that william, sr. had physically abused her in the past, but she denied suggests, like sex with her sister and sex with her cousin. he doesn't denies a. child services bureau records themselves, or observed their partner or encouraged their partner to be theory presented to the jury). the mitigation evidence that counsel failed to discover borderline and paranoid traits, and opined that phillips might also suffer from bipolar or well as the fact he spent much of his childhood in violent and unsanitary institutions; the fliped [sic] out and i beat up sheila by fist, stomach, (hit in stomach). a (1) whether the victim of the offense induced or facilitated it; furthermore, this court holds that mr. phillips failed to adduce sufficient up. ron saw things he should never have seen." he stated that phillips's father would grab unreasonable application of federal law." id. the six claims certified for appeal are: (1) whether phillips's conviction for clenched after hearing sheila scream, "don't beat me." the interview his lack of knowledge may have been due to his never previously having worked on the appeals affirmed. state v. phillips, no. 20692, 2002 wl 274637 (ohio ct. app. feb. 27, a two-part inquiry when reviewing ineffective-assistance-of-counsel claims: no. 5:03 cv 875, 2006 wl 2855077 (n.d. ohio sept. 29, 2006). cole, circuit judge, dissenting. phillips's crime is heinous. reading the facts 1. state court decisions didn't respond to me. i pulled shelia [sic] by her hair. inhiseffortstoacquiremitigatingevidence,edministertalkedwithphillips'smother a crime-infested neighborhood, he avoided drinking and using drugs. he tried to be helpful u.s. at 396 (reasoning that counsel's "failure to introduce the comparatively voluminous buck naked even when we were of high school age," that he "left black and blue marks on diagnosed phillips with a borderline personality disorder. degree of the offender's participation in the acts that led to the death of the complicated by brain swelling with herniation. further proceedings. state v. phillips, no. 18949, 1999 wl 58961 (ohio ct. app. feb. 3, sheila. [phillips] responded that the night before sheila's death, he had otherwitnesses,includingphillips'smother,father,brother,grandmother,andneighbor,who of the proceeding until a week before the trial"); glenn v. tate, 71 f.3d 1204, 1207 (6th the undisclosed evidence showed that phillips grew up in a less than ideal environment, have been less persuasive." id. this conclusion cannot stand in light of the prostitutes and drug dealers." 453 f.3d 690, 698-99 (6th cir. 2006). in carter v. bell, phillips, 2002 wl 274637, at *9-11. cumulative. rather, it would have provided counsel, who was "grasping at straws," with conclusion of the report: "it is believed that mr. phillips suffers from a severe psychological mr. phillips' personal background and presented the expert testimony of a federal habeas court] concludes in its independent judgment that the relevant state-court what [phillips] wanted to talk about, that [perella] couldn't promise him children and engaged in normal activities, such as fishing, swimming, and camping. he also perella and his supervisor, sergeant dye, drove to south alternative school, petitioner-appellant, testified that he was "completely unaware of any familial violence" or that the csb no. 06-4418 phillips v. bradshaw page 29 explained that phillips was generally a good student without disciplinary problems and was on wednesday, january 19, 1993, [phillips] telephoned the akron survival way to their environment and they often misinterpret and overreact be arousing. no. 06-4418 phillips v. bradshaw page 35 that the burden rests upon the defendant to demonstrate prejudice. see united states v. relied on the fact that trial counsel presented several witnesses attesting to phillips's there is also a reasonable probability that, had counsel not failed to meet their of justice and receipt of stolen property. donna phillips, phillips's mother, testified that further explained: edward stated in an affidavit that "[t]he home that ron and i grew up in was screwed she reassures him and takes on a maternal role. they develop a ct. app. aug. 31, 1994); phillips, 656 n.e.2d at 673. strategy-a strategy that may actually have been less persuasive. phillips's youthfulness when the crime was committed (nineteen); (5) phillips's lack of a at 467 (quoting williams v. taylor, 529 u.s. 362, 413 (2000)) (alterations in original). dr. cox also discovered during the autopsy evidence of acute anal 466 u.s. at 694. because the state court decided this constitutional issue in cursory fashion been surgically removed, and determined that the injury to the duodenum she falsely told csb that they were divorced. argued: july 29, 2009 was not informed that abuse was "a way of life" during the petitioner's childhood. 544 testify. a neighbor, lonnie bell, testified that phillips was always respectful and would help phillips is required to demonstrate a reasonable probability that the newly available of phillips's character deficiencies such as emotional immaturity, inflexible approach to he could speak with detective perella alone. dye agreed. once they were no. 06-4418 phillips v. bradshaw page 21 my butt for a month," and "used to beat us kids with a belt and smack our faces." she stated a rational jury to find beyond a reasonable doubt that he raped sheila on the day of her 227, 230 (1954), the trial court had conducted the required inquiry, had reasonably which tended to show that his father was verbally, emotionally, and refuses to cooperate); coleman v. mitchell, 268 f.3d 417, 449-50 (6th cir. 2001) assistance of counsel unless phillips was prejudiced by the performance. to satisfy this was "satisfied that they put it out of their minds, they're not going to non-violent nature and love of his family and called a psychologist who testified, like - following two interviews of phillips in 1995 and 1996. he also wrote a supplemental report established federal law if it correctly identifies the governing legal rule but applies it interviewing donna phillips. them to provide dr. brown--and the jury--with a true picture of the violent, abusive, unleashed on a helpless toddler. second, in view of the heinousness of the offense conduct, the notion that mitigation, and presented appellant in a manner that provided the jury with with a violent, abusive childhood). and if we find that the state court's conclusion was contrary to or an unreasonable which appellant repeated in his unsworn statement. a defense psychologist environment and the absence of a moral and social compass for mr. phillips. evidence against the totality of the mitigating evidence, we find that the addition of the hold a hearing to determine whether the jurors had been biased by the grand juror's no. 06-4418 phillips v. bradshaw page 11 financial resources, had no experience in mitigation-related investigation--could sheila, dr. eugene izsak, noted that she had multiple bruises on her torso, thus was unable to immediately speak with appellant. the next morning, comments to the bailiff. evidence was presented that, during mr. phillips' youth, his family got c. psychological report and testimony of dr. smith [phillips] did confess to anally penetrating sheila with his penis on two prior with his interpersonal relationships, especially his sexual relations, strongly deficient. strickland v. washington, 466 u.s. 668, 688 (1984). counsel has an (nineteen) and his expressed remorse, the evidence presented in mitigation investigator uncovered. yet the private investigator did not begin attempting to develop phillips' misplaced loyalty to his family prevented him from sharing openly phillips's counsel presented the following evidence during the mitigation phase of litigation specialist. the mitigation specialist concluded that the mitigation "we review the decision of the last state court to reach this point, the state court of was permitted to copy. edminister took handwritten notes about the contents of those files, no. 06-4418 phillips v. bradshaw page 19 treated. the ohio supreme court rejected this argument, pointing to testimony from dr. of physical abuse of phillips's half-siblings was apparent, but evidence of abuse of 1 in his petition, mr. phillips attacked his trial counsel's mitigation entitled to a new penalty-phase trial. see williams v. anderson, 460 f.3d 789, 804 (6th spanked her that hard but i told fae i would not do it any more." [phillips] criminal, that the petitioner was dependent on cocaine that induced paranoid fears at the made a conscious decision not to discuss crowe's comments with one because mitigation expert gave damaging testimony that he would not have given had sort of very dysfunctional relationship. problems and was essentially normal. see johnson, 544 f.3d at 605 (finding prejudice and may be relied upon by the trial court. furthermore, the jurors' phillips contends that the state failed to introduce sufficient evidence to allow mr. phillips claimed that his convictions are void or voidable murphy v. ohio, 551 f.3d 485, 493 (6th cir. 2009). because phillips filed his habeas and we need to develop that in some way." (ja vol. 10 at 5616.) of course, as revealed sheila marie evans case." one juror heard only the words "sheila marie no. 06-4418 phillips v. bradshaw page 25 a reasonable decision that such investigation is unnecessary. see wiggins v. smith, 539 sheila's death. he elaborated: jarring focus, when confessing his crimes to the police, not on being accused of murder c. sufficiency of the evidence and bruised." the pittsburgh caseworker described the family's situation as "deplorable." 319; 28 u.s.c. 2254(d)(1). aggravated murder, the state had to prove that he purposely caused sheila's death while unreasonably to the facts of a particular prisoner's case, or if it either unreasonably extends facts, and instead, focus on mr. phillips' character, family support, and his limitations on investigation"); johnson v. bagley, 544 f.3d 592, 600 (6th cir. 2008) of dr. cox's. furthermore, as the ohio supreme court pointed out, dr. cox, as coroner, a showing of prejudice. see united states v. cronic, 466 u.s. 648, 659 & n.25 (1984); examination that phillips had struck evans in the past and been suspended from school abusive background." smith's administration of the minnesota multiphasic personality crowe say that she hoped appellant "gets it" or "gets whatever he we choose to focus on the prejudice prong of the strickland test because it is easier comprehensive evaluation," he would need to obtain additional information. counsel, the petitioner bears the initial burden to submit evidentiary material while [phillips] admitted that he thought about anally penetrating the the court must reweigh the evidence in aggravation against the totality of the available of this case, as so vividly described in the majority's opinion, one cannot but feel a deep id. at 690-91. counsel has an obligation to perform a thorough investigation of the performance deficient that "counsel did not begin to prepare for [the sentencing] phase deficient and that counsel has a duty to pursue such investigation even if the defendant 1 not only did counsel fail to obtain these files or provide them to dr. brown, . . . would have concluded that the balance of aggravating and mitigating circumstances did the dissent posits that if dr. smith had been allowed to state his "opinion" that phillips may period of time, and that the most recent anal trauma had occurred sometime admission into the hospital. despite the significant medical efforts of sheila's death. the state court's determination that the evidence supported such a of appeals concluded that it was meritless:


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