Plaintiff-Appellee, Case No

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1 IN THE SUPREME COURT OF OHIO STATE OF OHIO, Plaintiff-Appellee, Case No V. JOHN DAVID STUMPF,. THIS IS A DEATH PENALTY CASE Defendant-Appellant. JOHN DAVID STUMP'F'S MEMORANDUM IN OPI'OSITION TO MO`TION TO SET EYECL'TION DATE DAVII) C. STEBBINS ( ) SHARON A. HICKS ( ) Assistant Federal Defenders Capital Habeas Unit Federal Public Defezlder's Office Southern District of Ohio 10 W. Broad Street, Ste Columbus, Ohio (614) (614) (Fax) David_Stebbins@fd.org Sharon IIicks@z, fd.org COUNSEL FOR JOHN DAVID STtJMPF DANIEL G. PADDEN ( ) Guernsey County Prosecuting Attorney 139 West 8"' Street P.O. Box 640 Cambridge, C7H (740) (740) FAX d.an.padden(^guernseyprosecutor.com COUNSEL FOR THE STATE OF OxIO....,. ;; `'. -.,._..^..!^ 0`. ^.^. ; i I?'^J b ^f^ ite ".:,...,:;...^. if. _......,, r':,^

2 IN I'HE SUPREME COURT OF OHIO STATE OF OHIO, V. Plaintiff-Appellee, Case No JOHN DAVID STUMPF, THIS IS A DEATH PENALTY CASE Defendant-Appellant. JOHN STUMPF'S MEMORANDUM IN OPPOSITION TO MOTION TO SET EXECUTION DATE On April 28, 2014, the State of Ohio prematurely moved this Court to set an execution date for Jolua Stumpf. John Stumpf, through counsel, opposes that request because there remain state and federal remedies to be investigated and exhausted. Undersigned counsel were newly appointed to assume representation of John Stumpf by the United States Court of Appeals for the Sixth Circuit on February 25, Uidersigned counsel have begun to review the voluminous pleadings and record generated in the lengthy litigation of this case. Undersigned counsel for Stumpf are ethically bound to explore whether there are additional challenges to be made in state or federal court - especially in light of recent rulings by the Supreme Court of the tjnited States in Martinez v. Ryan, 132 S. Ct (2012) and Trevino i.y. Thaler, 133 S. Ct (2013). Both of those cases impose a duty upon successor counsel to review the work of prior counsel to determine whether the procedural default of any sttbstantial federal constitutional claims may be excused because to the denial of the effective assistance of counsel during initial-review state post-conviction. litigation. Coiu-isel has begun but not completed that assessment. 2

3 `I'he State presents a very brief outline vfthe facts of the case and a lengthy outline of the procedural history of the litigation in thec,ase. The State relies on this Court's 1994 opinion in State v. S'teffera, 79 Ohio St, 3d 399, 412 (1994) for the proposition that a death sentenced defendant is only entitled to one round of appeals through federal habeas corpus before ' this Court should set an execution date. The Steffen case, however, predates the 1Vaf tinez/trevino line of cases by almost twenty years. The ivartinez/tnevino line of cases make clear that -vvhere substantial claims of the denial of the effective assistance of trial counsel were found to be defaulted because of the denial of the effective assistance of state post-conviction counsel, that default may be excused. At trial, Stumpf waived a trial by jury and entered a plea of guilty to a three judge panel. - without gaining any benefit from his waiver of rights and entry of a guilty plea. The penalty phase was then tried to a three judge panel --- everl though counsel repeatedly demonstrated the need for additional time to investigate mitigating evidence. The three judge panel sentenced Stumpf to death. Stumpf was represented on his post-conviction litigation by private counsel retained by the Ohio Public Defenders Office who may have lacked the time and resources to adequately and thoroughly investigate his case for post-conviction litigation - subsequently causing many of his claims of the denial of the effective assistance of trial counsel to be defaulted in federal court. Stumpf therefore is entitled to have tl-iose claims investigated by current counsel, However, given the extensive record in this case, newly appointed counsel requires some period of time to review the record and to complete additional investigation. Expediting the setting of an execution date would leave insufficient time for current counsel to investigate the facts and issues of this case at a time when in depth knowledge of the case is critical. 3

4 As witli any client facing an execution date, there is likely to be end stage litigation simultaneous to the preparation for a request for executive clemency. Capital counsel owes a substantial duty to a death-senteneed inmate, even in preparation for his clemency proceedings. "In addition to assembling the most persuasive possible record for the decision maker, counsel must carefully examine the possibility of pressing legal claims asserting the right to a fuller and fairer process." ABA Guidelines for the Appointn7ent andperformanee of Counselira Death Peraalty! Cases (rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913, 937 (2003) (footnote omitted). In order to effectively discharge counsel's duties, the ABA Guidelines require counsel to: "be familiar with the procedures for and permissible substantive content of a request for clemency; to "conduct an investigation in accordance with Guideline 10.7; to "ensure that clemency is sought in as timely and persuasive a manner as possible, tailoring the presentation to the characteristics of the particular client, case and jurisdiction"; and to"ensure that the process governing consideration of the client's application is substantively and procedurally just, and, if it is not, should seek appropriate redress. Guideline , 31 Hofstra L. Rev. at Curre.nt counsel are in the process of determining whether or not Stumpf can establish cause and prejudice for any of his otherwise-defaulted claims under Martinez. As with any capital appeal, this case has a very lengthy record which undersigned counsel are still in the process of reviewing. Accordingly, the State's Motion to Set an Execution Date should be denied. 4

5 Respectfully submitted, ^,, ^-^^G^ I3A.VTD C. STEBBINS ( ) SHARON A. HICKS ( ) Assistant Federal Defenders Capital Habeas Unit Federal Public Defender's Office Southern District of Ohio 10 W. I3road Street, Ste Columbus, Ohio (614) (614) (Fax) David_StebbinsCa)fd> org Sha.ron_IIicksL fd.org COUNSEL FOR JOIIN DAVID STUMPF CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was sent by regular U.S. Mail to Daniel G. Padden, Guernsey County Prosecuting Attorney, 139 West 8t" Street, P.O. Box 640, Cambridge, OF , on this 6th day of May, DAVID C. STEBBINS ( ) COUNSEL FOR JOI-IN DAVID STUMPF