Nature of the Case
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Facts
P, Wesley, and Edmonds stopped their car along I-70 and, leaving Edmonds in the car, P and Wesley walked to a nearby house under the pretense of needing to make a phone call. The house was owned and occupied by Norman and Mary Jane Stout. Stout admitted P and Wesley into his home and allowed them to use the phone. When they had completed the call, P and Wesley produced pistols and announced a robbery. P held the Stouts at gunpoint in a back bedroom while Wesley searched the house for items to steal. Stout moved toward P, and P shot him between the eyes with his pistol. The shot was not fatal. Stout pushed P into the next room. Stout was struck on the head with a pistol and shot in the head a second time. He became semi-conscious. Stout heard four gunshots. Mary Jane Stout was shot and killed during the course of this robbery, although there is a dispute as to whether P or Wesley fired the fatal shots. P and Wesley stole the Stout's car and fled. P was arrested several days later, and after initially denying any knowledge about these crimes and then being told that Stout had survived, he confessed to being involved. The two were not tried together as Wesley was awaiting extradition from Texas. Subsequent to P's having pleaded guilty and having been sentenced to death, Wesley was convicted of aggravated murder by a jury and received a sentence of life imprisonment without the possibility of parole for 20 years. The State introduced evidence at Wesley's trial that Wesley and not P fired the shots that killed Stout. A ballistics expert testified that there were eight spent cartridges found at the scene, that seven of them had been fired by one gun, and one was fired by a different gun. Dye also said that the black pistol, which had been recovered by the police, fired one bullet, while the other seven bullets were all fired by the same gun. That gun could have been the chrome Raven and P and Wesley threw away as they drove on the highway. At P's plea proceeding, the prosecutor argued that the ballistics evidence supported the conclusion that P had shot Stout. During Wesley's trial, the same prosecutor put Eastman, Wesley's cellmate, on the witness stand, to repeat Wesley's confession to him. According to Eastman, Wesley told him that after P had shot Stout in the face, he dropped the chrome Raven and ran, at which point Wesley picked up the pistol and shot Stout. This version of the crime was also supported by the ballistics evidence that the black pistol had a tendency to jam after firing just one round, which may have led Wesley to discard it after shooting it only once. Wesley was still detained in Texas when P pleaded guilty to the aggravated murder. After Wesley was also convicted, by a jury, of Stout's murder P filed a motion for leave to withdraw his guilty plea or, in the alternative, to have the trial court set aside his death sentence and grant him a new sentencing hearing. The motion was denied. The Ohio Supreme Court affirmed the order and P filed a petition for post-conviction relief. The petition and an appeal were dismissed. P filed a petition for a writ of habeas corpus in federal court, in that his guilty plea was not knowing and intelligent, that his waiver of the right to a jury trial was invalid, and that he received ineffective assistance of counsel at the penalty phase. All were denied and P appealed. P argues, in part, that the prosecutor's use of two conflicting theories concerning the identity of the shooter to convict both him and Wesley constitutes a due process violation.
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