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Esparza v. Sheldon

United States Court of Appeals, Sixth Circuit

August 28, 2014

GREGORY ESPARZA, Petitioner-Appellant,
v.
ED SHELDON, Warden, Respondent-Appellee

Argued, July 30, 2014

Page 616

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 3:96-cv-07434--Christopher A. Boyko, District Judge.

ARGUED:

Lori B. Riga, OFFICE OF THE FEDERAL PUBLIC DEFENDER/CAPITAL HABEAS UNIT, Cleveland, Ohio, for Appellant.

Ashon L. McKenzie, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

ON BRIEF:

Lori B. Riga, Alan C. Rossman, Vicki Ruth Adams Werneke, OFFICE OF THE FEDERAL PUBLIC DEFENDER/CAPITAL HABEAS UNIT, Cleveland, Ohio, Jeffry F. Kelleher, JEFFRY F. KELLEHER & ASSOCIATES, CO., Cleveland, Ohio, for Appellant.

Ashon L. McKenzie, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Before: SILER, SUTTON and KETHLEDGE, Circuit Judges.

OPINION

Page 617

SUTTON, Circuit Judge.

Three decades ago, Gregory Esparza murdered Melanie Gerschultz for just over a hundred dollars in cash. An Ohio jury sentenced him to death. After the Ohio state courts refused to alter his sentence, Esparza unsuccessfully sought habeas relief in federal district court. Because the Ohio courts reasonably rejected his claims, we affirm.

I.

On February 12, 1983, Melanie Gerschultz and James Barailloux were working

Page 618

the night shift at a Toledo restaurant when Gregory Esparza walked inside. Wearing a ski mask and brandishing a gun, he ordered someone to open the register. Melanie complied, but James escaped through the back door and found help. When he returned, Esparza had fled, $110 was missing from the register's cash drawer, and Melanie lay dying on the floor from a bullet wound in her neck.

In October 1983, an Ohio grand jury indicted Esparza on one count of aggravated robbery and one count of aggravated murder with a capital specification. The trial court appointed Thomas Stebbins and Norman Zemmelman as Esparza's lawyers and scheduled trial for January 23, 1984. When his lawyers asked for more time to interview potential witnesses, the court delayed the trial until March 5. And when both of them withdrew--Zemmelman citing a conflict of interest, Stebbins a dearth of experience--the court again delayed the trial until replacement counsel could familiarize themselves with the case. Jury selection eventually started on April 30, 1984, and opening arguments began four days later. After hearing that Esparza had confessed to a fellow inmate and to one of his siblings, among other evidence, the jury convicted on both counts.

In connection with the penalty phase of the trial, Esparza's lawyers moved for an " independent expert at state expense." J.A. 270. They invoked two state statutes: Ohio Rev. Code § 2929.024, which provides independent expert services to indigent defendants, and Ohio Rev. Code § 2929.03(D)(1), which provides court-appointed expert services to capital defendants. The court denied the first request but granted the second, appointing the Court Diagnostic and Treatment Center. Upon reading the Center's report and finding it wanting, Esparza's lawyers asked the court to undo their § 2929.03 request, to keep its results from the jury, to appoint an independent expert, and to grant a continuance of unspecified duration. The court granted a one-day continuance to permit argument over the motion but ultimately denied all four requests.

During the penalty phase, Esparza's lawyers focused the jury's attention on his troubled youth. Esparza's grandfather, Richard DeLa Rosa, testified that Esparza's father Frank deserted his mother Beatrice and " all the[ir eight] kids" when Esparza was young. J.A. 7450. Beatrice started " going out again" shortly afterwards, often abandoning her children and leaving them in her ten-year-old daughter's care. Id. at 7453. The family " didn't have no food," " money," or " shoes to go to school," and the children were sometimes sent home " because their hair was full of lice." Id. at 7450. Eventually, the police " load[ed] the whole bunch" into a " paddy wagon" and placed them in a Children's Home. Id. at 7454. DeLa Rosa took in most of Beatrice's children, but he left Esparza behind.

Esparza's aunt, Virginia Gonzales, testified that Beatrice died when Esparza was young. She reported that Frank would whip Esparza with a wire hanger and would force his children to sit outside in ...


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