reversed the judgment of the district court, holding that (1) Ohio law did not allow the doctrine of transferred intent to satisfy the mens rea element of the crime of aggravated felony murder; and (2) Richey was deprived of the effective assistance of counsel as a result of his counsel’s mishandling of the scientific evidence.
We agree with the parties that the Supreme Court’s remand instructions are not entirely clear. To begin, there is an ambiguity regarding whether the Court has conclusively determined that we erred with respect to the three procedural issues it delineates, or whether it has simply recited the State’s assertions as to how we erred and instructed us to undertake further analysis in light of the State’s claims of error. Unsurprisingly, the State argues that the Court has held that we did in fact err, while Richey argues that the Court has merely reiterated the State’s claims of error without resolving them against him.
The second, and more problematic, ambiguity involves the last three sentences of the Court’s remand instructions (beginning with “Respondent, however, contends”), referring to whether the State preserved its Holland argument. Once again, there are two possible interpretations of this language. One interpretation, and that advanced by Richey, is that the Supreme Court is saying that if we determine that the State failed to object to our consideration of the evidence developed for the first time in the district court, then the State is precluded from arguing that we are limited by statecourt factual findings, or that any aspect of Richey’s claim is procedurally defaulted (issues two and three, respectively, enumerated by the Court). On the other hand, a second interpretation, the one urged by the State, is that the Supreme Court’s statements about whether the State preserved its Holland objection are applicable only to the first issue identified by the Court, namely, whether we improperly relied on evidence that was not presented to the state courts.. . .
Under either interpretation—Richey’s or the State’s—we conclude once again that the state courts unreasonably applied Strickland in determining that Richey was not deprived of his constitutional right to the effective assistance of counsel
The Supreme Court remanded this case with instructions for us to re-consider the procedural propriety of our ruling that the state courts unreasonably applied Strickland in determining that Richey had received constitutionally adequate representation at his trial. Richey and the State have advanced different interpretations of the Supreme Court’s remand language. Under either interpretation, we conclude that we properly reached and considered the merits of Richey’s ineffective-assistance claim in our prior disposition. Moreover, because the deficient performance of Richey’s counsel undermines our confidence in the outcome of his trial, and because we believe that the Ohio state courts unreasonably applied Strickland in determining otherwise, we reverse the judgment of the district court and remand with instructions to enter a conditional writ of habeas corpus, giving the State of Ohio ninety days to retry Richey or release him.
I agree that the issue is not totally procedurally defaulted, but I disagree with the majority on the question of deficient performance.