546 US 74 Bradshaw v Richey

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Case TextPer Curiam

BRADSHAW, WARDEN v. RICHEY

on petition for writ of certiorari to the united
states court of appeals for the sixth circuit

No. 05—101. Decided November 28, 2005

Respondent was convicted in Ohio state court of aggravated murder,
based on a theory of transferred intent, and he was sentenced to death.
His petition for federal habeas relief was denied, but the Sixth Circuit
reversed, holding (1) that transferred intent was not a permissible theory
for aggravated felony murder under Ohio law at the time of his
conviction, and (2) that the performance of respondent’s trial counsel
had been constitutionally deficient under Strickland v. Washington, 466

U. S. 668.

Held: The Sixth Circuit erred in holding that the transferred intent doctrine
was inapplicable under state law and that respondent was entitled
to relief under Strickland. The Ohio Supreme Court’s interpretation of
the relevant state statute, as announced in its review of respondent’s
case, directly contradicts the Sixth Circuit’s analysis. The State Supreme
Court’s perfectly clear and unambiguous explanation that the
transferred intent doctrine “ ‘is firmly rooted in Ohio law’ ” is binding
on a federal court sitting in habeas. See Estelle v. McGuire, 502 U. S.
62, 67—68. The Sixth Circuit also erred in its adjudication of the Strickland
claim by, inter alia, relying on evidence not properly presented to
the state habeas courts. Respondent contends that the State failed to
preserve that objection before the Sixth Circuit. Because the relevant
errors had not yet occurred, the Sixth Circuit has had no opportunity to
address this argument, and it is better situated to do so in the first
instance.

Certiorari granted; 395 F. 3d 660, vacated and remanded.

Per Curiam.

In 1987, respondent Kenneth T. Richey was tried in Ohio
for aggravated murder committed in the course of a felony.
Evidence showed that respondent set fire to the apartment
of his neighbor, Hope Collins, in an attempt to kill his exgirlfriend
and her new boyfriend, who were spending the
night together in the apartment below. The intended victims
escaped unharmed, but Hope Collins’ 2-year-old daugh

Per Curiam

ter Cynthia died in the fire. At trial, the State presented
evidence of respondent’s intent to kill his ex-girlfriend and
her boyfriend, but not of specific intent to kill Cynthia Collins.
The State also offered expert forensic evidence to
show that the fire had been started deliberately. Respondent
did not contest this forensic evidence at trial because his
retained arson expert had reported that the State’s evidence
conclusively established arson. Respondent was convicted
of aggravated felony murder on a theory of transferred intent
and sentenced to death. His conviction and sentence
were affirmed on direct appeal, where he was represented
by new counsel.

Respondent sought postconviction relief in state court.
The state trial court denied his request for an evidentiary
hearing and denied relief on all claims, and the state appellate
court affirmed. Respondent then sought federal habeas
relief. The District Court permitted discovery on certain
issues, but ultimately denied all of respondent’s claims. The
Sixth Circuit reversed, holding that respondent was entitled
to habeas relief on two alternative grounds. First, that
transferred intent was not a permissible theory for aggravated
felony murder under Ohio law, and that the evidence
of direct intent was constitutionally insufficient to support
conviction. Second, that the performance of respondent’s
trial counsel had been constitutionally deficient under Strickland
v. Washington, 466 U. S. 668 (1984), in his retaining
and mishandling of his arson expert and in his inadequate
treatment of the State’s expert testimony.

We now grant the State’s petition for writ of certiorari and
vacate the judgment below.

I

The Sixth Circuit erred in holding that the doctrine of
transferred intent was inapplicable to aggravated felony
murder for the version of Ohio Rev. Code Ann. § 2903.01(B)
(Anderson 1982) under which respondent was convicted.

Per Curiam

See Richey v. Mitchell, 395 F. 3d 660, 675 (2005). The Ohio
Supreme Court’s interpretation of that section, as announced
in its review of respondent’s case, directly contradicts the
Sixth Circuit’s analysis:

“The fact that the intended victims escaped harm, and
that an innocent child, Cynthia Collins, was killed instead,
does not alter Richey’s legal and moral responsibility.
‘The doctrine of transferred intent is firmly
rooted in Ohio law.’ Very simply, ‘the culpability of a
scheme designed to implement the calculated decision to
kill is not altered by the fact that the scheme is directed
at someone other than the actual victim.’ ” State v.
Richey, 64 Ohio St. 3d 353, 364, 595 N. E. 2d 915, 925
(1992) (citations omitted).

This statement was dictum, since the only sufficiency-ofevidence
claim raised by respondent pertained to his setting
of the fire. Nonetheless, its explanation of Ohio law was
perfectly clear and unambiguous. We have repeatedly held
that a state court’s interpretation of state law, including one
announced on direct appeal of the challenged conviction,
binds a federal court sitting in habeas corpus. Estelle v.
McGuire, 502 U. S. 62, 67—68 (1991); Mullaney v. Wilbur, 421

U. S. 684, 691 (1975).

The Sixth Circuit held that the Ohio Supreme Court’s
opinion should not be read to endorse transferred intent in
respondent’s case because such a construction would likely
constitute “an unforeseeable and retroactive judicial expansion
of narrow and precise statutory language,” Bouie v.
City of Columbia, 378 U. S. 347, 352 (1964), in violation of
the Due Process Clause. 395 F. 3d, at 677 (citing United
States v. Lanier, 520 U. S. 259 (1997); Bouie, 378 U. S., at
351). It is doubtful whether this principle of fair notice has
any application to a case of transferred intent, where the
defendant’s contemplated conduct was exactly what the rel

Per Curiam

evant statute forbade, see id., at 351. And it is further
doubtful whether the doctrine of constitutional doubt permits
such a flatly countertextual interpretation of what the
Ohio Supreme Court said, see Salinas v. United States, 522

U. S. 52, 59—60 (1997). But assuming all that, Ohio law at
the time of respondent’s offense provided fully adequate
notice of the applicability of transferred intent. The relevant
mens rea provision in § 2903.01(D) required only that
“[n]o person shall be convicted of aggravated murder unless
he is specifically found to have intended to cause the death
of another.” Ohio Rev. Code Ann. § 2903.01(D) (Anderson
1982) (emphasis added). Respondent’s intention to kill his
ex-girlfriend and her boyfriend plainly came within this provision.
There was no reason to read “another” (countertextually)
as meaning only “the actual victim,” since the doctrine
of transferred intent was “firmly rooted in Ohio law.”
State v. Sowell, 39 Ohio St. 3d 322, 332, 530 N. E. 2d 1294,
1305 (1988) (citing Wareham v. State, 25 Ohio St. 601 (1874)).
Respondent could not plausibly claim unfair surprise that the
doctrine applied in his case. See Lanier, supra, at 269—270
(requiring, as adequate notice for due process purposes, only
“reasonable warning,” rather than fundamentally similar
prior cases).

The foregoing provision was in effect at the time of respondent’s
crime in 1986. The Sixth Circuit reasoned, however,
that the following subsequent clause in the version of
§ 2903.01(D) that existed in 1986 foreclosed transferred intent
in this case:

“If a jury in an aggravated murder case is instructed
that a person who commits or attempts to commit any
offense listed in division (B) of this section maybeinferred,
because he engaged in a common design with
others to commit the offense by force or violence or because
the offense and the manner of its commission
would be likely to produce death, to have intended to

Per Curiam

cause the death of any person who is killed during the
commission of . . . the offense, the jury also shall be
instructed that . . . it is to consider all evidence introduced
by the prosecution to indicate the person’s intent
and by the person to indicate his lack of intent in determining
whether the person specifically intended to cause
the death of the person killed ....” OhioRev. Code
Ann. § 2903.01(D) (Anderson 1982) (emphasis added).

Contrary to the Sixth Circuit’s reading, see 395 F. 3d, at 673,
this clause by its terms did not apply to every case in which
the defendant was charged with aggravated felony murder,
but rather only to those in which intent to kill was sought to
be proved from the inherent dangerousness of the relevant
felony. See State v. Phillips, 74 Ohio St. 3d 72, 100, 656

N. E. 2d 643, 668 (1995) (“R. C. § 2903.01(D) does not apply
in this case because the trial court never instructed that the
jury could infer purpose to kill from the commission of an
underlying felony in a manner ‘likely to produce death’ ”).
Here, however, intent to kill was proved directly. It was
not inferred from the dangerousness of the arson; it was
shown to be the purpose of the arson.

The Sixth Circuit also argued that dicta in a case decided
by an intermediate Ohio appellate court, prior to the Ohio
Supreme Court’s opinion here, rejected transferred intent
for respondent’s crime, and thus rendered its application in
respondent’s case unforeseeable and retroactive. 395 F. 3d,
at 675—676 (citing State v. Mullins, 76 Ohio App. 3d 633, 602

N. E. 2d 769 (1992)). But that case was decided long after
the 1986 offense for which respondent was convicted, and
thus has no bearing on whether the law at the time of the
charged conduct was clear enough to provide fair notice.
Lanier, supra; see also Marks v. United States, 430 U. S. 188,
196 (1977).

Because the Sixth Circuit disregarded the Ohio Supreme
Court’s authoritative interpretation of Ohio law, its ruling
on sufficiency of the evidence was erroneous.

Per Curiam

II

The Sixth Circuit also held that respondent was entitled
to relief on the ground that the state courts’ denial of his
Strickland claim was unreasonable. 395 F. 3d, at 688. As
petitioner contends, the Sixth Circuit erred in its adjudication
of this claim by relying on evidence that was not properly
presented to the state habeas courts without first determining
(1) whether respondent was at fault for failing to
develop the factual bases for his claims in state court, see
Williams v. Taylor, 529 U. S. 420, 430—432 (2000), or (2)
whether respondent satisfied the criteria established by 28

U. S. C. § 2254(e)(2). See Holland v. Jackson, 542 U. S. 649,
653 (2004) (per curiam). Similarly, the Sixth Circuit erred
by disregarding the state habeas courts’ conclusion that the
forensic expert whom respondent’s trial counsel hired was a
“properly qualified expert,” App. to Pet. for Cert. 347a,
without analyzing whether the state court’s factual finding
had been rebutted by clear and convincing evidence. See 28

U. S. C. § 2254(e)(1). Compare App. to Pet. for Cert. 347a
with 395 F. 3d, at 683. In addition, as petitioner contends,
the Sixth Circuit erred in relying on certain grounds that
were apparent from the trial record but not raised on direct
appeal–namely, that trial counsel (1) inadequately crossexamined
experts called by the State, (2) erred by prematurely
placing the forensic expert counsel had hired on the
witness list, and (3) failed to present competing scientific evidence
against the State’s forensic experts–without first determining
whether respondent’s procedural default of these
subclaims could be excused by a showing of cause and prejudice
or by the need to avoid a miscarriage of justice. See
App. to Pet. for Cert. 340a—341a, 351a—354a (state courts’
holding that these subclaims should have been raised on direct
appeal); id., at 109a—110a (District Court’s holding that
this default was not excusable under Coleman v. Thompson,
501 U. S. 722, 749—750 (1991)). Respondent, however, contends
that the State failed to preserve its objection to the

Per Curiam

Sixth Circuit’s reliance on evidence not presented in state
court by failing to raise this argument properly before the
Sixth Circuit. See Brief in Opposition 24—26. Because the
relevant errors had not yet occurred, the Sixth Circuit has
had no opportunity to address the argument that the State
failed to preserve its Holland argument. It is better situated
to address this argument in the first instance.

***
For the foregoing reasons, the judgment of the Sixth Circuit
is vacated, and the case is remanded for further proceedings
consistent with this opinion.

It is so ordered.

546 U.S. 74 - Bradshaw v Richey

546 US 74 Bradshaw v Richey