Hand v. Houk, Case No. 14-3148 (BOGGS, Clay, Rogers).

Hand v. Houk, Case No. 14-3148 (BOGGS, Clay, Rogers).

The defendant-appellant is on death row in Ohio after being convicted of two counts of aggravated murder stemming from a decades-long scheme to hire a friend to kill his wives in order to collect their insurance policies. The opinion sets out the detailed facts of the investigation and procedural history, which ultimately ended with the defendant losing on direct appeal and state post-conviction relief. In 2007, the defendant filed a writ for habeas corpus, which was denied. He then appealed, arguing that the petition should have been granted because there were problems with the trial court’s voir dire, ineffective assistance of counsel, evidentiary problems at trial, and insufficient evidence to convict on one of the charges.

The Sixth Circuit affirmed the district court’s denial of the defendant’s petition. The Court held that a number of the defendant’s claims were barred because Ohio requires a claim based only on evidence contained within the trial record to be raised on direct appeal or else the claim is barred by res judicata. Only claims involving evidence outside the trial record may first be raised in a petition for state post-conviction relief. The defendant in this case first raised many of the arguments in his state post-conviction relief action, and therefore the Court held that they were barred under Ohio law. The Sixth Circuit noted that Ohio courts’ application of res judicata is an adequate and independent state ground that bars federal habeas relief. The defendant argued that his procedural default on the claims should be excused because his appellate counsel was ineffective for not raising the grounds in the direct appeal. The Court noted that ineffective assistance can excuse procedural default, but found that here the appellate counsel was not ineffective under the Strickland because “counsel need not raise every non-frivolous claim on direct appeal” and “only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.” The Court noted that the defendant’s counsel had raised a number of claims that were much stronger than those raised in the habeas petition, and therefore counsel’s failure to raise the claims did not fall outside the wide range of professionally competent assistance. The Court found the defendant's remaining claims either procedurally barred or otherwise meritless.