Does Ohio's postconviction process allow indigent defendants a substantive opportunity to develop claims that comport with Ohio's collateral review requirements where indigent defendants are denied funding for postconviction-experts

QUESTIONS PRESENTED Wayne Powell was sentenced to death following a trial where his counsel performed deficiently and failed to thoroughly investigate and prepare mitigation on his behalf. Powell pays for the cost of their mistakes with his life. Ohio law permits indigent death row inmates, like Powell, one opportunity to correct errors caused by the ineffective assistance of trial counsel: a petition for postconviction relief in the trial court. Powell asked the trial court to provide postconviction counsel with the funds to hire four experts: a mitigation specialist, a psychologist, a substance abuse expert, and a neuropsychologist. Because Ohio’s statutes do not expressly require the trial court to fund expert services in a capital postconviction case, the trial court denied funding, the appellate court affirmed, and the Ohio Supreme Court declined jurisdiction. Thus, Powell is required to navigate postconviction — the only forum for litigation of ineffective assistance of trial counsel’s mitigation efforts — without the tools essential to the task. In Hurst v. Florida, __ U.S. __, 186 S.Ct. 616 (2016), the Court overruled Spaziano v. Florida,! and Hildwin v. Florida,? invalidated Florida’s capital punishment statute, and held all facts necessary to impose a death sentence must be based on a jury’s verdict, not a judge’s fact finding. Hurst, 136 S.Ct. at 624. Under Ohio’s capital punishment statute, “[a]ll the power to impose the punishment of death 168 US. 447, 104 8.Ct. 3154 (1984). 2.490 U.S. 638, 109 S.Ct. 2055 (1989). i resides in the trial court which oversees the mitigation or penalty phase of the trial” and renders specific factual findings necessary to impose the death penalty.? The Ohio Supreme Court — invoking Spaziano v. Florida — has repeatedly held that investing capital sentencing authority solely in the trial judge does not violate the Sixth or Eighth Amendments. Powell was sentenced to death under this judge-sentencing scheme where a jury’s death verdict is merely a recommendation. The judge alone makes findings essential to impose the death penalty and decides whether to sentence a defendant to life or death. After Hurst, Powell moved the trial court to grant a new mitigation trial in conformity with the constitutional requirements this Court established in Hurst. The trial court denied the motion, the Court of Appeals affirmed, and the Ohio Supreme Court declined jurisdiction. Thus, Powell’s case raises two concerns of national importance: 1. Does Ohio’s postconviction process allow indigent defendants a substantive opportunity to develop claims that comport with Ohio’s collateral review requirements where indigent defendants are denied funding for postconviction experts? 2. Is Ohio’s death penalty scheme unconstitutional under Hurst v. Florida? 3 State v. Rogers, 28 Ohio St.3d 427, 429 (1986). ii