JACK ZOUHARY, District Judge.
A jury convicted Petitioner Edward Lang of the 2006 murders of Jaron Burditte and Marnell Cheek, recommending that Petitioner be sentenced to death for Cheek's murder and life imprisonment without the possibility of parole for Burditte's murder. He now challenges the constitutionality of his convictions and sentence, pursuant to 28 U.S.C. § 2254. For the reasons below, this Court denies the Petition for Writ of Habeas Corpus (Doc. 16).
On direct appeal from his convictions and sentence, the Ohio Supreme Court described Lang's crimes as follows:
The defense presented no evidence during the guilt phase.
State v. Lang, 129 Ohio St.3d 512, 513-516 (2011) (footnote omitted).
In December 2006, a grand jury charged Lang with the murders of Burditte and Cheek, returning an indictment with two counts of aggravated murder in violation of Ohio Rev. Code § 2903.01(B), and one count of aggravated robbery in violation of Ohio Rev. Code § 2929.04(A)(7). For each aggravated-murder charge, the grand jury returned two capital specifications. First, the grand jury charged that each murder was part of a course of conduct involving the purposeful killing of two or more persons in violation of Ohio Rev. Code § 2929.04(A)(5). Second, the grand jury charged that each murder was committed in the course of an aggravated robbery in violation of Ohio Rev. Code § 2929.04(A)(7). All counts included a firearm specification under Ohio Rev. Code § 2941.145 (Doc. 17-1 at 47-52).
Lang's trial began on July 10, 2007 (Doc. 22-2 at 348). Attorneys Frank Beane and Anthony Koukoutas served as Lang's trial counsel. On July 14, 2007, a jury found Lang guilty of all charges and specifications. Lang's mitigation hearing ended four days later, with the jury recommending the death penalty for Cheek's murder, and life imprisonment, without the possibility of parole, for Burditte's murder. The trial court adopted the jury's sentencing recommendation on July 26, 2007 (Doc. 17-5 at 1362-73). The court also sentenced Lang to a ten-year term of imprisonment for the aggravated-robbery count, and merged the gun specifications imposing an additional three-year term of imprisonment (id.).
Lang, represented by Joseph Wilhelm, Rachel Troutman, Benjamin Zober, and Jennifer Prillo, timely appealed his convictions and sentence to the Ohio Supreme Court raising twenty-one propositions of law:
(Doc. 18-1 at 1519-21). On November 1, 2010, with leave of court, Lang presented an additional proposition of law, arguing that the trial court erred by failing to properly notify him of the penalty for noncompliance with the terms of post-release control (Doc. 18-3 at 2028-35).
The Ohio Supreme Court affirmed Lang's convictions and sentence on August 31, 2011, but remanded his case to the trial court to impose the appropriate term of post-release control pursuant to Ohio Rev. Code § 2929.191. State v. Lang, 129 Ohio St.3d 512 (2011). Lang filed a motion for reconsideration, which the court denied on November 2, 2011 (Doc. 18-3 at 2107-16).
Lang next filed an application to reopen his direct appeal on January 27, 2012, asserting five propositions of law:
(Doc. 18-3 at 2146, 2147, 2149, 2150, 2152). The Ohio Supreme Court denied the application on September 5, 2012 (Doc. 18-4 at 2158).
While his direct appeals were pending, Lang filed a petition for postconviction relief in the trial court on May 15, 2008, now represented by Richard Vickers and Tyson Fleming. He presented the following fourteen grounds for relief:
(id. at 2210, 2212, 2215, 2218, 2220, 2223, 2226, 2228, 2231, 2234, 2237, 2239, 2242, 2245). Lang requested discovery and an evidentiary hearing on all grounds (see id. at 2247).
On May 23, 2008, Lang filed amendments to two of his postconviction claims with additional exhibits (Doc. 19-3 at 2647-55). Lang also moved for funds for a neurological examination (id. at 2656-65). On June 15, 2009, the trial court issued a thirty-one page decision granting the State's motion to dismiss Lang's petition, and denying the petition and motion regarding the neuropsychological examination (Doc. 19-5 at 2873-2903).
Lang, represented by Troutman and Fleming, appealed the trial court's denial of postconviction relief. He asserted the following assignments of error:
(Doc. 20-1 at 2953). The Ohio court of appeals affirmed the trial court judgment on August 23, 2010. State v. Lang, 2010-Ohio-3975 (Ct. App.).
Lang then appealed to the Ohio Supreme Court, presenting two propositions of law:
(Doc. 20-1 at 3097). The court declined to accept jurisdiction to hear the appeal on March 21, 2012 (Doc. 20-2 at 3149).
On November 27, 2012, Lang filed a notice of intent to initiate this habeas action, and requested appointment of counsel and leave to proceed in forma pauperis (Docs. 1-3). This Court granted both motions and appointed Laurence Komp and Michael Benza to represent Lang (Docs. 7-8).
On September 16, 2013, Lang filed his Petition for Writ of Habeas Corpus (Doc. 16), the State of Ohio ("the State") filed a Return of Writ (Doc. 23), and Lang filed his Traverse (Doc. 33).
In May 2014, Lang filed three motions. First, he asked to supplement the record with certain missing portions of the state-court record (Doc. 36 at 1). Second, he sought discovery on his first through fourth, seventh, eighth, fourteenth, and sixteenths grounds for relief, and discovery of facts concerning whether his fifth, tenth, eleventh, and thirteenth grounds for relief had been procedurally defaulted (Doc. 37 at 9). Third, he requested an evidentiary hearing regarding his postconviction claims and his procedural default arguments (Doc. 38 at 4-6).
On October 23, 2014, this Court denied Lang's motions for evidentiary hearing and discovery as to his first through fourth, eighth, and fourteenth claims without prejudice, and denied with prejudice all remaining requests for discovery. This Court granted Lang's motion to supplement the record (see Doc. 47).
Lang asserts seventeen grounds for relief. They are:
(Doc. 16 at 32, 45, 50, 61, 70, 76, 80, 82, 84, 86, 88, 95, 98, 103, 108, 112, 115).
Filed in 2012, Lang's Petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 336 (1997); Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). AEDPA, which amended 28 U.S.C. § 2254, was enacted "to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases, and `to further the principles of comity, finality, and federalism.'" Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting (Michael) Williams v. Taylor, 529 U.S. 420, 436 (2000)). AEDPA "recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights." Burt v. Titlow, 134 S.Ct. 10, 15 (2013). The Act "erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Id.
Section 2254(d) forbids a federal court from granting habeas relief with respect to a "claim that was adjudicated on the merits in State court proceedings" unless the state-court decision either:
Habeas courts review the "last explained state-court judgment" on the federal claim at issue. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (emphasis omitted). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784-85 (2011).
A state-court decision is contrary to "clearly established Federal law" under § 2254(d)(1) only "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." (Terry) Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011). "Clearly established Federal law" for purposes of the provision "is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). See also White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (explaining that "only the holdings, as opposed to the dicta, of Supreme Court decisions" qualify as clearly established Federal law for purposes of § 2254(d)) (internal quotation marks and citations omitted). "And an `unreasonable application of' those holdings must be `objectively unreasonable,' not merely wrong; even `clear error' will not suffice." Woodall, 134 S. Ct. at 1702 (quoting Lockyer, 538 U.S. at 75-76). "The critical point is that relief is available under§ 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no `fairminded disagreement' on the question." Id. at 1706-07 (quoting Harrington, 131 S. Ct. at 786).
A state-court decision is an "unreasonable determination of the facts" under § 2254(d)(2) only if the court made a "clear factual error." Wiggins v. Smith, 539 U.S. 510, 528-29 (2003). This Court's review of state court factual findings is limited to "the evidence presented in the State court proceeding," and the petitioner bears the burden of rebutting the state court's factual findings "by clear and convincing evidence." Burt, 134 S. Ct. at 15; Rice v. White, 660 F.3d 242, 250 (6th Cir. 2011). See also 28 U.S.C. § 2254(e)(1). "[I]t is not enough for the petitioner to show some unreasonable determination of fact; rather, the petitioner must show that the resulting state court decision was `based on' that unreasonable determination." Rice, 660 F.3d at 250. "`[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.'" Burt, 134 S. Ct. at 15 (quoting Wood, 558 U.S. at 301).
Section 2254(d) "reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems" and does not function as a "substitute for ordinary error correction through appeal." Harrington, 131 S. Ct. at 785 (internal quotation marks omitted). Thus, a petitioner "must show that the state court's ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87.
But AEDPA "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Id. "[E]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Rather, "under AEDPA standards, a federal court can disagree with a state court's factual determination and `conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.'" Baird v. Davis, 388 F.3d 1110, 1123 (7th Cir. 2004) (quoting Miller-El, 537 U.S. at 340). Moreover, the deference AEDPA demands is not required if (for example) § 2254(d) does not apply to a claim. Federal habeas courts may review de novo an exhausted federal claim that was not adjudicated on the merits in state court. See Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir. 2005).
Section 2254(b)(1) provides that a federal court may not grant habeas relief to an applicant in state custody "unless it appears that the applicant has exhausted the remedies available in the courts of the State . . . or there is an absence of available State corrective process . . . or circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1); see also Rose v. Lundy, 455 U.S. 509 (1982). "[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). "This requirement, however, refers only to remedies still available at the time of the federal petition." Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982). A habeas court cannot review a federal claim if the petitioner can still present the claim to a state court for merits consideration. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). And res judicata bars an Ohio court from considering any issue that a petitioner could have, but did not, raise on direct appeal from his conviction or sentence. State v. Perry, 10 Ohio St.2d 175 (1967).
For good cause, a habeas court may stay the action so that the petitioner may present his unexhausted claim to state court, then return to federal court for review of his perfected petition. Rhines v. Weber, 544 U.S. 269, 277 (2005). But if the habeas court determines a return to state court would be futile, it need not wait for exhaustion to occur. Lott v. Coyle, 261 F.3d 594, 608 (6th Cir. 2001). Where appropriate, § 2254(b)(2) also allows a habeas court to deny an unexhausted federal claim on the merits. See also Hanna v. Ishee, 694 F.3d 596, 610 (6th Cir. 2012) (denying petitioner's claim on the merits "notwithstanding a failure to exhaust" the claim).
Further, a federal court may not consider "contentions of general law which are not resolved on the merits in the state proceeding due to petitioner's failure to raise them as required by state procedure." Wainwright v. Sykes, 433 U.S. 72, 87 (1977). If a "state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). A procedural bar is "independent" when a state court applies the rule without relying on federal law, id. at 732-33, and "adequate" when the procedural rule is "firmly established and regularly followed" by state courts, Beard v. Kindler, 558 U.S. 53, 60-61 (2009). If a petitioner fails to fairly present a federal habeas claim to the state courts and no longer can present that claim to a state court, the claim is procedurally defaulted. O'Sullivan, 526 U.S. at 848; Rust, 17 F.3d at 160.
This Court employs a four-step analysis to assess procedural default, examining the last explained state-court decision. See Ylst, 501 U.S. at 805; Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000):
Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001) (internal citations omitted). If the last state court rendering a reasoned opinion on a federal claim "clearly and expressly states that its judgment rests on a state procedural bar," then the claim is procedurally defaulted and barred from consideration on federal habeas review. Harris v. Reed, 489 U.S. 255, 263 (1989).
Even if a claim is procedurally defaulted, a federal court may excuse the default and consider the claim on the merits if the petitioner demonstrates either (1) cause for the petitioner not to follow the procedural rule and prejudice from the alleged constitutional error, or (2) that a fundamental miscarriage of justice would result from denying federal habeas review. Coleman, 501 U.S. at 750.
A petitioner can establish cause to excuse procedural default in two ways. A petitioner may "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Objective impediments include an unavailable claim or interference by state officials that made compliance with state procedural rules impracticable. Id. If the procedural default can be attributed to counsel's constitutionally inadequate representation, that failing can serve as cause, so long as the ineffectiveassistance-of-counsel claim was presented to the state courts. Id. at 488-89. If the ineffectiveassistance claim was not presented to the state courts in the manner that state law requires, that claim is itself procedurally defaulted and only can be used as cause for the underlying defaulted claim if the petitioner demonstrates cause and prejudice with respect to the ineffective-assistance claim. Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).
To establish prejudice, a petitioner must demonstrate that the constitutional error "`worked to his actual and substantial disadvantage.'" Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis in original). "When a petitioner fails to establish cause to excuse a procedural default, a court does not need to address the issue of prejudice." Simpson v. Jones, 238 F.3d 399, 409 (6th Cir. 2000).
A narrow exception to the cause-and-prejudice requirement exists where a constitutional violation "probably resulted" in the conviction of one who is "actually innocent" of the crime for which the person was convicted in state court. Dretke v. Haley, 541 U.S. 386, 392 (2004) (citing Murray, 477 U.S. at 495-96). The petitioner must show "`by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.'" Id. (quoting Sawyer v. Whitley, 505 U.S. 333, 336 (1992)).
Lang claims that his trial counsel's performance denied him his Sixth Amendment right to effective assistance of counsel. Specifically, he complains that counsel:
(Doc. 33 at 12-45, 59-74, 119-26). Because Lang presented each of these claims to a state court, which adjudicated each claim on its merits, each claim is preserved for federal habeas review.
The Sixth Amendment right to the effective assistance of counsel at trial "is a bedrock principle in our justice system." Martinez v. Ryan, 132 S.Ct. 1309, 1317 (2012). The Court announced a two-part test for claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984). First, a petitioner must demonstrate that counsel's errors were so egregious that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id at 687. Counsel's performance must fall "below an objective standard of reasonableness." Id. at 688. A reviewing court must "reconstruct the circumstances of counsel's challenged conduct" and "evaluate the conduct from counsel's perspective at the time." Id. at 689.
Second, a petitioner must show that he or she was prejudiced by counsel's errors with "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. "It is not enough to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693 (citation and quotation marks omitted). Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. Because ineffective-assistance-of-counsel claims are mixed questions of law and fact, id. at 698, a habeas court reviews such claims under AEDPA's "unreasonable application" prong, § 2254(d)(1), see, e.g., Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir. 2003).
Prevailing on an ineffective-assistance-of-counsel claim is no easy task. See Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 788 (2011):
The Supreme Court has observed that the standards imposed by Strickland and § 2254(d) are both "highly deferential;" applying both standards together results in review that is "doubly" deferential. Harrington, 131 S. Ct. at 788.
In his first ground for relief, Lang complains that his trial counsel were ineffective for failing to adequately investigate, develop, and present mitigating evidence. On postconviction review, the Ohio court of appeals was the last court to address this claim on its merits. Lang submitted forty-one exhibits with his petition to support the claim, comprising nearly 300 pages (Docs. 18-4, 18-5, 19-1, 19-2, 19-3 at 2248-2508, 2608-39; Doc. 19-3 at 2553-2655).
Lang, 2010-Ohio-3975, at ¶¶ 31-46 (internal citations omitted).
Counsel in capital cases has an "obligation to conduct a thorough investigation of the defendant's background" for mitigation purposes. Williams, 529 U.S. at 396. In Strickland, the Court noted that a capital sentencing proceeding "is sufficiently like a trial in its adversarial format and in the existence of standards for decision" such that counsel's role in the two proceedings is comparable: "to ensure that the adversarial testing process works to produce a just result under the standards governing decision." Strickland, 466 U.S. at 686. See also Wiggins v. Smith, 539 U.S. 510, 525 (2003) (counsel ineffective where petitioner had an "excruciating life history" but counsel focused exclusively on defendant's direct responsibility for murder). But, "the duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste." Rompilla v. Beard, 545 U.S. 374, 383 (2005). "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691.
Lang claims the state court of appeals decision denying his ineffective-assistance failure-toinvestigate claim was contrary to, or an unreasonable application of, Strickland. Thus, this Court must examine whether the Ohio court of appeals acted unreasonably in finding that Lang: had not overcome the strong presumption of competence by proving his counsel's deficient performance in his preparation for, and presentation during, the sentencing phase of the trial; or failed to demonstrate a reasonable probability that a jury presented with this additional mitigating evidence would have recommended a different sentence. See Pinholster, 131 S. Ct. at 1403.
First, as the Ohio court of appeals noted, Lang's claim is speculative, and the record fails to show a constitutionally inadequate investigation. Rather, the record demonstrates that trial counsel, Crates, and Smalldon, did a substantial amount of mitigation investigation well before the trial began. As the Ohio court noted, shortly after their appointment, trial counsel filed a request for discovery and a motion for funds to hire a defense investigator, a psychological expert, and a mitigation expert, which the court granted. Within two months, trial counsel had filed thirty-seven motions on Lang's behalf. And by the end of trial, they had filed over eighty-two motions, including a motion to permit the defense to admit all relevant mitigating evidence (Doc. 17-1 at 1-23).
Moreover, Crates' first invoice indicates that he began reviewing documents as soon as he was hired, on January 8, 2007. He made consistent efforts to obtain records beginning with his "[i]nitial contact with Baltimore" on February 6, 2007. But on June 14, he wrote a memo regarding "difficulties in [r]etrieval" (Doc. 17-3 at 807-09). Similarly, Smalldon's invoice demonstrates that he spent several hours reviewing "discovery" soon after he was hired, repeatedly consulted with Crates and trial counsel from January through July, reviewed records in June, and interviewed and assessed Lang twice, in January and June, for more than eighteen hours (Doc. 17-5 at 1398).
Finally, the trial court confirmed with trial counsel during pretrial hearings that the mitigation experts had "everything they need[ed]" to proceed to trial, and that the mitigation specialist in particular was "on top of everything" (Doc. 22-1, Tr. of June 27, 2007 hearing at 30; Tr. of June 13, 2007 hearing at 24). In addition, after the parties rested in the mitigation phase, the trial court questioned trial counsel about their preparation efforts for this phase of the trial:
(Doc. 22-3, Mitig. Tr., at 85-86.)
Therefore, the Ohio court did not unreasonably decide that trial counsel's efforts to prepare for the mitigation phase of trial were constitutionally adequate.
This Court "begin[s] with the premise that `under the circumstances, the challenged action[s] might be considered sound trial strategy.'" Pinholster, 131 S. Ct. at 1404 (quoting Strickland, 466 U.S. at 689). Indeed, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690. Thus, the Court has held that counsel is not ineffective for deciding to offer little or no mitigation evidence where that decision is based on sound professional judgment. See, e.g., Bell v. Cone, 535 U.S. 685, 702 (2002); Burger v. Kemp, 483 U.S. 776, 793-95 (1987); Darden v. Wainwright, 477 U.S. 168, 184 (1986); Strickland, 466 U.S. at 699-700.
Here, the Ohio court accepted the trial court's determination that trial counsel's decision to offer the testimony of only Lang's mother and step-sister was based on sound trial strategy. It concluded that counsel sought "to treat [Lang's] mother as a sympathetic character and not to portray her in a negative light" and to "humanize [Lang's] difficulties, rather than present them in detailed scientific terms." Lang, 2010-Ohio-3975, at ¶ 45 (quotation marks omitted).
A court may infer from record trial counsel's strategic basis for presenting (or not presenting) certain evidence in mitigation:
Harrington, 131 S. Ct. at 790 (internal citations omitted). Trial counsel articulated their strategy for the mitigation phase of the trial during opening arguments:
(Doc. 22-3, Mitig. Tr., at 31.). Trial counsel reiterated the same strategy during closing argument:
(Doc. 22-3, Mitig. Tr., at 95-96). The record supports the Ohio court's conclusion that trial counsel pursued a "humanizing" strategy.
Moreover, as the Ohio court reasoned, much of the evidence Lang claims should have been presented to the jury in mitigation would have been cumulative of other evidence that was presented. The Ohio court carefully examined and summarized the evidence Lang presented during postconviction review. It concluded that Lang's mother and step-sister presented "a detailed picture" of Lang's mental illness and the "horrors of his life growing up." Lang, 2010-Ohio-3975, at ¶¶ 43-44. "`[T]he failure to present additional mitigating evidence that is merely cumulative of that already presented does not rise to the level of a constitutional violation.'" Eley v. Bagley, 604 F.3d 958, 968 (6th Cir. 2010) (quoting Nields v. Bradshaw, 482 F.3d 442, 454 (6th Cir. 2007)).
The Ohio court also reasonably concluded that the mitigating evidence Lang argues should have been presented at trial may have exposed him to potentially devastating rebuttal and crossexamination. See, e.g., Wong v. Belmontes, 130 S.Ct. 383, 391 (2009) (rejecting petitioner's "`moreevidence-is-better' approach to mitigation" where it would have opened door to evidence of past murders); Strickland, 466 U.S. at 699 ("Restricting testimony on respondent's character to what had come in at the plea colloquy ensured that contrary character and psychological evidence and respondent's criminal history, which counsel had successfully moved to exclude, would not come in.").
The records trial counsel did not offer in mitigation are replete with references to Lang's violent and defiant behavior. For example, Lang's postconviction expert psychologist summarized hospital records from 2001 as indicating that:
(Doc. 18-4 at 2299). She wrote that in July 2003, Lang "act[ed] out so severely that he was denied a placement at the Chesapeake Youth Center, a residential treatment center for violent and behaviorally disturbed youth[,] because he was considered too violent for placement at that site" (id.). In addition, in 2003 a school psychologist reported:
(Doc. 18-5 at 2372). And in December 2006, Lang pled guilty to a felonious assault while in county jail awaiting his capital murder trial (Doc. 19-3 at 2610-20).
The records also contain a substantial amount of information about Lang's mother that could have undermined her credibility and the jury's sympathy for her. Numerous governmental agencies documented how she neglected, abused and abandoned Lang and his siblings (see, e.g., Doc. 19-3 at 2627-39).
Thus, Lang has not "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quotation marks omitted).
Lang asserts several claims regarding trial counsel's performance during the guilt phase of his trial. He first argues that trial counsel were ineffective for failing to mount a "forceful" challenge to the State's DNA evidence and "incorrectly conceding [during closing argument] that there was a DNA `match' that identified Lang as the principal offender" (Doc. 16 at 51). He contends that trial counsel's deficient performance regarding the DNA evidence prejudiced him because it undermined his otherwise strong defense that Walker was the shooter (id. at 51-53).
The Ohio Supreme Court rejected this claim:
Lang, 129 Ohio St. 3d at 538-39.
Lang argues the Ohio court acted unreasonably by finding trial counsel's cross-examination of the State's DNA expert adequate. The expert's testimony, Lang argues, was "worthless, unreliable, unscientific, and junk science" (Doc. 33 at 60). But he does not specify what trial counsel should have done differently in his cross-examination or explain why the State's expert's testimony was "junk science," as opposed to just weak evidence. Lang only states that trial counsel should have moved to suppress the DNA evidence and objected to Foster's testimony (Doc. 16 at 52). The Ohio Supreme Court reasonably concluded that a motion to suppress or objections at trial would not have been successful.
With regard to trial counsel's DNA-related remarks during closing argument, Lang first argues the Ohio Supreme Court assumption that trial counsel's conduct was deficient is a "binding" determination under AEDPA, or, alternatively, allows de novo review in this Court because no state court adjudicated the issue on its merits (Doc. 33 at 60). But aside from providing no authority for this assertion, and aside from the rule that even summary adjudications by state courts are considered adjudications on the merits for purposes of AEDPA, see Harrington, 131 S. Ct. at 784-85, Lang must still satisfy both prongs of Strickland to prevail on an ineffective-assistance claim, Strickland, 466 U.S. at 687. (Lang asserts this argument in connection with many of his ineffective-assistance subclaims; this Court rejects the argument as it relates to those claims as well.)
Lang further asserts that the Ohio court's conclusion that Lang suffered no prejudice as a result of counsel's remarks during the closing argument is predicated on an unreasonable determination of fact. He argues that the Ohio court "found that the absence of Walker's DNA was the critical fact but a review of the evidence and the prosecutor's arguments reveal that the critical fact was Lang's DNA and Foster's junk science testimony" (Doc. 33 at 61). He points to the following statement of the prosecutor during his closing argument:
(id. at 61, quoting Doc. 22-3 at 1273-74). This statement does not contradict the state court's conclusion that the key issue in the case with respect to DNA evidence was the absence of Walker's DNA on the gun pointing to Lang as the principal offender, not the possible presence of Lang's DNA on the gun.
Moreover, as the State notes, while trial counsel may have misstated the expert's conclusion regarding the DNA on the gun as being "conclusively Eddie Lang's," trial counsel never conceded that the DNA identified Lang as the principal offender (Doc. 23 at 59-60). The distinction is important. The Ohio court could reasonably conclude that, during closing argument, trial counsel dismissed as unimportant the presence of Lang's DNA on his own gun.
Lang further claims that his attorney lost credibility and alienated the jury when he compared the jury to a lynch mob. He argues the all-white jury could have perceived the argument as accusing them of racial bias against Lang (Doc. 16 at 54-55).
The Ohio Supreme Court addressed this claim on the merits:
Lang, 129 Ohio St. 3d at 539-40 (internal citations omitted).
The right to effective assistance of counsel extends to closing arguments. Yarborough v. Gentry, 540 U.S. 1, 5 (2003). "[C]ounsel has wide latitude in deciding how best to represent a client," and counsel's tactical decisions in closing argument are accorded deference "because of the broad range of legitimate defense strategy at that stage." Id. at 5-6. "Judicial review of a defense attorney's summation is therefore highly deferential and doubly deferential when it is conducted through the lens of federal habeas." Id. at 6.
Lang argues that the Ohio Supreme Court's decision was unsupported by the record and that trial counsel's remarks "could have no genesis in tactic" (Doc. 33 at 62). Here, the state court reasonably determined that defense counsel's lynch-mob argument was a strategic attempt to emphasize to the jury their obligation to view the evidence carefully and critically. This strategy falls "well within the range of professionally reasonable judgments." Strickland, 466 U.S. at 699.
Lang next asserts that trial counsel were ineffective because they did not request permission from the court to question each juror about their possible discussions with a juror who was removed from the jury because she was related to Cheek (though not by blood) (Doc. 16 at 55-58). The Ohio Supreme Court summarily rejected this claim, reasoning that even if it were to assume deficient performance by counsel, Lang suffered no prejudice. Lang, 129 Ohio St. 3d at 542. As this Court finds no merit in Lang's underlying claims regarding the trial court's failure to question each juror, Lang cannot show prejudice for purposes of this Sixth Amendment claim.
Lang complains that trial counsel failed to contest prejudicial testimony that Lang's nickname was "Tech," and that Lang vomited after the murders and said "every time I do this [i.e., commit violence or murder someone], this same thing happens" (Doc. 16 at 58-59). The Ohio Supreme Court denied this claim, finding the statements did not prejudice Lang. Lang, 129 Ohio St. 3d at 542. This Court agrees. The supposed connection between the name "Tech" and gangs and gun violence was never explained to the jury, nor is there an indication that the jurors were aware of the connection. Similarly, there were no additional references during the trial to other acts of violence committed by Lang, so it would be speculative to assume the jury gave any weight to the vomit comments, either.
Lang also argues that trial counsel were ineffective because they failed to secure a forensic expert to independently test the clothes Walker wore during the murder. Lang asserts such testing would have produced evidence to support his claim that Walker was the principal offender (Doc. 16 at 59-60). The Ohio Supreme Court addressed this claim:
Lang, 129 Ohio St. 3d at 540-41 (internal citations omitted). This decision does not unreasonably apply Strickland.
Shifting his focus to postconviction proceedings, Lang contends that "[t]he failure of postconviction counsel to conduct this testing constitutes ineffective assistance of postconviction counsel and serves as cause and prejudice permitting this Court to grant discovery and an evidentiary hearing on this matter." He cites for support Martinez v. Ryan, 132 S.Ct. 1309 (2012), Trevino v. Thalor, 133 S.Ct. 1911 (2013), and Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014) (Doc. 33 at 70). These cases, however, are inapposite.
In Martinez, the Supreme Court held that the "[i]nadequate assistance of counsel at initialreview collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. at 1315. The Court emphasized that its holding in Martinez represents a "narrow exception" to the procedural-default bar. Id. at 1319. In Trevino, the Supreme Court expanded the scope of Martinez to apply when a state, by reason of the "design and operations" of its procedural framework, permits but "makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal." Trevino, 133 S. Ct. at 1921. And in Sutton, the Sixth Circuit applied Trevino to Tennessee ineffective-assistance claims. Sutton, 745 F.3d at 790. These cases apply only to excusing the procedural default of ineffective-assistance-of-trial-counsel claims in federal habeas actions; they have no bearing on discovery or evidentiary hearings relating to such claims.
Lang also argues that the state postconviction court's denial of his request for discovery "means that the state courts did not adjudicate this claim on the merits and therefore the limitations of the AEDPA do not apply" (Doc. 33 at 68). Lang cites no authority for this proposition, which also fails.
Lang contends that trial counsel were ineffective because they failed to ask the trial court to seal the prosecutor's file for appellate review (Doc. 16 at 60). The Ohio Supreme Court rejected this claim:
Lang, 129 Ohio St. 3d at 542 (internal citations omitted).
Lang argues this decision contradicts State v. Brown, 115 Ohio St.3d 55 (2007) (Doc. 33 at 68-69). In Brown, the trial court granted a defense motion to seal the prosecutor's files and make the files part of the record for appellate review. Brown, 115 Ohio St. 3d at 63. The Ohio Supreme Court later determined that several documents in the file satisfied the Brady standard for exculpatory evidence that should have been disclosed to the defense. Id. at 63-65. It vacated the judgment against the defendant and remanded the case for a new trial. Id. at 69-79.
Brown does not help Lang. "[F]ederal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990). See also Estelle v. McGuire, 502 U.S. 62, 68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). "[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." Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
Lang complains that trial counsel failed to object to numerous instances of prosecutorial misconduct and the improper admission of evidence during the guilt phase of trial (Doc. 16 at 60-61). The Ohio Supreme Court summarily rejected this claim on the ground that even if it were to assume deficient performance by counsel, trial counsel's performance would not have prejudiced Lang. Lang, 129 Ohio St. 3d at 542. As this Court finds no merit in Lang's underlying claims regarding prosecutorial misconduct and trial error, Lang cannot show prejudice for purposes of this Sixth Amendment claim.
Lang contends that trial counsel were ineffective for failing to object to admission of Walker's prior consistent statement (Doc. 16 at 61). The Ohio Supreme Court again summarily rejected this claim on the ground that even if it were to assume deficient performance by counsel, it would not have prejudiced Lang. Lang, 129 Ohio St. 3d at 542. This Court finds no merit in Lang's underlying claim regarding Walker's testimony. As a result, Lang cannot show prejudice on this Sixth Amendment claim.
Lang asserts trial counsel was ineffective for remarking in closing argument that Lang had a "pretty normal childhood up until he was ten." He argues the comment was a "gross misrepresentation of the record and detrimental to [Lang]'s interest" (Doc. 16 at 106). The Ohio Supreme Court addressed this claim:
Lang, 129 Ohio St. 3d at 551-52 (internal citations omitted).
Considering all the evidence — including the evidence presented on postconviction review — Lang did not have a "normal" life before age ten. But the Ohio court reasonably determined that trial counsel's comment during closing did not misrepresent the testimony presented in mitigation. That evidence centered on Lang's experiences at the hands of his father who, as Lang's mother testified, was absent until Lang was ten years old.
Lang complains that trial counsel were ineffective because they failed to carry through on a promise made during opening argument to present certain mitigating evidence (Doc. 16 at 106-07). Specifically, trial counsel promised to provide evidence that the neighborhood in which Lang grew up was "one of the most dangerous ones in the State of Maryland" (Doc. 16 at 107(quoting Doc. 22-3, Mitig. Tr., at 96)). Trial counsel also promised to offer evidence that Lang suffered from suicidal thoughts (Doc.16 at 107). Lang claims that this evidence would have "explained where Lang came from, his emotional state, and shed light on whether death was the appropriate sentence in this case" (id.). He further argues that trial counsel's failure to present this evidence "hampered their credibility in the jurors' eyes [and] weaken[ed] Lang's overall mitigation case" (id.).
The Ohio Supreme Court addressed this claim:
Lang, 129 Ohio St. 3d at 552. The Ohio Supreme Court's decision is neither contrary to, nor an unreasonable application of, Strickland.
Lang complains that trial counsel failed to object to various instances of prosecutorial misconduct during the mitigation phase of trial (Doc. 16 at 107). The Ohio Supreme Court denied this claim because it found no merit in the underlying prosecutorial-misconduct claims. Lang, 129 Ohio St. 3d at 552-53. This Court rejects the claim for the same reasons.
Lang contends that the cumulative effect of his trial counsel's performance violated his right to effective assistance of counsel (Doc. 33 at 74). However, Lang has not overcome the strong presumption that trial counsel's performance lies within the wide range of reasonable professional conduct. Strickland, 466 U.S. at 689. Nor has he shown prejudice from trial counsel's conduct. Id. at 694. Because Lang has not shown that any of the alleged instances of ineffective assistance of counsel deprived him "of a fair trial, a trial whose result is reliable," id. at 687, he cannot show that the cumulative effect of these alleged deficiencies amounted to ineffective assistance of counsel, see, e.g., Campbell v. United States, 364 F.3d 727, 736 (6th Cir. 2004) (concluding the accumulation of non-errors cannot establish constitutionally ineffective assistance of counsel).
Lang contends he received ineffective assistance from his appellate counsel. He complains that appellate counsel did not present the following issues on direct appeal to the Ohio Supreme Court:
(Doc. 16 at 62-70).
Because Lang presented these claims in a timely application to reopen his direct appeal before the Ohio Supreme Court, an application that was summarily denied (Doc. 18-4 at 2158), he preserved the claims for federal habeas review.
A criminal defendant is entitled to effective assistance of counsel in the defendant's first appeal as a matter of right. See Evitts v. Lucey, 469 U.S. 387, 396 (1985). Strickland analysis applies to claims of ineffective assistance of appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285 (2000). Thus, Lang must demonstrate that appellate counsel's performance was deficient, and that the deficient performance so prejudiced the appeal that the appellate proceedings were unfair and the result unreliable. See Strickland, 466 U.S. at 687.
But a criminal defendant does not have a constitutional right to have every non-frivolous issue raised on appeal, Jones v. Barnes, 463 U.S. 745, 750-54 (1983), and tactical choices regarding issues to raise on appeal are left to the sound professional judgment of counsel, United States v. Perry, 908 F.2d 56, 59 (6th Cir. 1990). "[O]nly when issues are clearly stronger than those presented[] will the presumption of effective assistance of [appellate] counsel be overcome." Joshua v. DeWitt, 341 F.3d 430, 441 (6th Cir. 2003) (internal quotation marks and citations omitted).
On direct appeal, appellate counsel did not argue that (1) Lang's trial counsel was ineffective for failing to request a limiting instruction related to the proper use of Walker's plea of guilty to complicity to commit murder, or (2) the trial court erred by failing to sua sponte provide such an instruction (Doc. 16 at 62-64). For all of Lang's ineffective-assistance-of-appellate-counsel claims relating to failure to raise arguments regarding his trial counsel's performance, the State argues it is "apparent" that appellate counsel reviewed the record to identify viable ineffective-assistance-of-trialcounsel arguments; indeed, appellate counsel raised other Strickland arguments. The State argues appellate counsel reasonably could have concluded that omitted Strickland claims were less likely to succeed than were the Strickland claims that were raised on direct appeal (Doc. 23 at 61). The State does not address the standalone claim of error regarding the trial court's failure to sua sponte issue a jury instruction regarding the jury's use of the Walker plea.
"To warrant habeas relief because of incorrect jury instructions, [a petitioner] must show that the instructions, as a whole, were so infirm that they rendered the entire trial fundamentally unfair." Murr v. United States, 200 F.3d 895, 906 (6th Cir. 2000). Lang notes the well-established principle that the guilty plea of a co-defendant cannot be used as substantive evidence of a defendant's guilt, and that any use of a co-defendant's guilty plea to impeach a witness must be paired with a limiting jury instruction. See, e.g., United States v. Dougherty, 810 F.2d 763, 767-68 (8th Cir. 1987); United States v. Bright, 1995 WL 98816, at *4 (6th Cir. 1995). But Lang does not cite any controlling Supreme Court precedent finding constitutional error in the failure to give a limiting instruction in these circumstances. Cf. Carey v. Musladin, 549 U.S. 70, 76 (2006) ("Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators' courtroom conduct of the kind involved here, it cannot be said that the state court `unreasonably appli[ed] clearly established Federal law.'").
Moreover, even if AEDPA deference did not apply because the state courts unreasonably applied clearly established federal law in failing to grant a limiting instruction, Lang cannot establish this error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). "If [the court] is sure that the error had no or very slight effect or influence on the jury's decision, the verdict and judgment must stand." Murr, 200 F.3d at 906 (citing O'Neal v. McAninch, 513 U.S. 432, 436-38 (1995)). Given the overwhelming weight of the evidence of Lang's guilt, Lang has not established that the absence of the limiting instruction he proposes had a substantial effect on the jury's verdict.
The Ohio Supreme Court did not contravene or unreasonably apply clearly established federal law in denying Lang's claim of ineffective assistance of appellate counsel based on the trial court's failure to instruct the jury regarding Walker's plea or trial counsel's failure to object to the jury instructions on that ground.
Lang's next sub-claim is based on Batson v. Kentucky, 476 U.S. 79 (1986), which bars a party from striking potential jurors on the basis of race. Lang asserts appellate counsel should have raised on direct appeal claims that (1) the trial court violated the Equal Protection Clause when it excused an African-American man from serving on the jury, and (2) trial counsel was ineffective for failing to object on that ground (Doc. 16 at 64-66). The State did not specifically address this claim.
Under the Equal Protection Clause of the Fourteenth Amendment, "no State shall . . . deny to any person within its jurisdiction the equal protection of the law." U.S. CONST. amend. XIV, § 1. The Equal Protection Clause prohibits a state from trying a defendant before a jury from which members of his race purposefully have been excluded. See, e.g., United States v. Harris, 192 F.3d 580, 586 (6th Cir. 1999) (citing Strauder v. West Virginia, 100 U.S. 303 (1879)). The "harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. [Such procedures] undermine public confidence in the fairness of our system of justice." Batson, 476 U.S. at 87.
Under Batson, a three-step process applies to evaluate a claim that a prosecutor used peremptory challenges to strike a potential juror on the basis of race. Id. at 96-98. First, the court must determine if the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge on the basis of race. Id. at 96-97. Second, if the defendant makes such a prima facie showing, the prosecutor must present a race-neutral explanation for the strike. Id. at 97-98. "Although the prosecutor must present a comprehensible reason, `[t]he second step of this process does not demand an explanation that is persuasive, or even plausible'; so long as the reason is not inherently discriminatory, it suffices." Rice v. Collins, 546 U.S. 333, 338 (2006) (quoting Purkett v. Elem, 514 U.S. 765, 767-68 (1995)). Indeed, "[t]he fact that a prosecutor's reasons may be founded on nothing more than a trial lawyer's instincts about a prospective juror does not diminish the scope of acceptable invocation of peremptory challenges, so long as they are the actual reasons for the prosecutor's actions." United States v. Power, 881 F.2d 733, 740 (9th Cir. 1989). Third, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. See Batson, 476 U.S. at 98. "This final step involves evaluating `the persuasiveness of the justification' proffered by the prosecutor, but `the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.'" Rice, 546 U.S. at 338 (quoting Purkett, 514 U.S. at 768). "`[T]he court presumes that the facially valid reasons proffered by the [party exercising the peremptory challenge] are true.'" Braxton v. Gansheimer, 561 F.3d 453, 459 (6th Cir. 2009) (quoting Lancaster v. Adams, 324 F.3d 423, 433 (6th Cir. 2003)). Therefore, a Batson challenge ultimately "comes down to whether the trial court finds the prosecutor's race-neutral explanations to be credible." Miller-El v. Cockrell, 537 U.S. 322, 339 (2003). "Credibility can be measured by, among other factors, the prosecutor's demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy." Id.
Trial-court findings on the issue of discriminatory intent must be afforded "great deference." See Hernandez v. New York, 500 U.S. 352, 364-66 (1991).
Id. at 365 (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)). "The credibility of the prosecutor's explanation goes to the heart of the equal protection analysis, and once that has been settled, there seems nothing left to review." Id. at 367. Thus, "in the absence of exceptional circumstances, [habeas courts should] defer to state-court factual findings." Id. at 366.
Lang argues the trial court improperly excused Juror 405, an 81-year-old African-American man. The prosecutor offered a race-neutral reason for the peremptory challenge: Juror 405's apparent confusion during questioning, confusion that deputies and the jury commissioner confirmed (Doc. 22-2 at 746-47). Lang's counsel objected on the ground that Juror 405 was one of only four African-Americans left on the venire panel (id. at 747). The judge then questioned the man as follows:
(Id. at 748-49). The prosecutor again stated the basis for his challenge, adding Juror 405's concerns about his wife and his own physical condition. The trial court agreed that it had noticed the potential juror was "a little unstable on his feet." The trial court explained that it questioned Juror 405 to confirm the jury commissioner's account of his confusion, and not because the trial court doubted the prosecutor's basis for the challenge (id. at 751). The trial court then granted the prosecutor's challenge (id.).
Apparently believing the trial court addressed the Batson challenge in too cursory a fashion, Lang argues the decision to excuse Juror 405 was constitutional error. Not so. The trial court adhered to Batson's three-step burden-shifting framework. The prosecutor presented a reasonable rationale for challenging the juror, grounded in record facts. "Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot." Hernandez, 500 U.S. at 359. See also United States v. McAllister, 693 F.3d 572, 579 (6th Cir. 2012). The trial court confirmed the prosecutor's reasons for the challenge, and independently concluded that Lang had failed to meet his burden of proving intentional discrimination. This is sufficient under Batson. "[A] state court need not make detailed findings addressing all the evidence before it" to reach a proper Batson ruling. Miller-El, 537 U.S. at 322. See also Purkett, 514 U.S. at 766, 769-70 (holding that a federal court failed to adequately defer to the state trial court's factual finding of no racial motive, even though the trial court rejected the Batson objection "without explanation"); Braxton, 561 F.3d at 462 ("In the absence of clearly established Supreme Court authority requiring further elaboration," the state trial court, "albeit in abbreviated fashion, adequately and reasonably conveyed its decision.").
Further, Lang has not demonstrated that "exceptional circumstances" exist in this case that would permit this Court to reject the trial court's Batson findings. See Hernandez, 500 U.S. at 365-66. The Ohio Supreme Court did not contravene or unreasonably apply Batson nor make an unreasonable determination of fact when it rejected Lang's ineffective-assistance-of-appellate-counsel claim based on Juror 405's removal.
On direct appeal, Lang's appellate counsel argued the trial court erred when it failed to release certain grand jury transcripts that led to Walker's indictment. Lang now argues appellate counsel was ineffective for failing to argue the grand jury transcripts contained relevant mitigating evidence (Doc. 16 at 66-67). The State counters that Lang essentially argues appellate counsel failed to make convincing arguments in support of the transcript-disclosure claim, not that appellate counsel failed to raise that claim. "[A]ppellate counsel's choice of arguments should be deemed virtually unchallengeable," the State argues, especially "given the lack of any indication that counsel failed to fully review the record or conduct necessary research" (Doc. 23 at 61-62). This Court agrees. Moreover, the claim is speculative. Counsel could not have argued that the transcripts provided any particular evidence, much less mitigating evidence, when appellate counsel had no access to the sealed transcripts.
Lang contends that appellate counsel failed to cite the "seminal Supreme Court authority" in support of his argument, raised on direct appeal, regarding admission of evidence that suggested Lang was a gang member (Doc. 16 at 67-68). But Lang has not demonstrated that counsel's failure to cite a particular case was objectively unreasonable, or that the citation failure so prejudiced Lang's appeal that the appellate proceedings were unfair and the result unreliable. Strickland, 466 U.S. at 687.
Lang argues he received ineffective assistance of appellate counsel because appellate counsel did not argue trial counsel was ineffective for failing to request that the trial court individually question jurors about whether an excused juror spoke to them about her relation to one of the victims (Doc. 16 at 68-70). For reasons described below, this Court finds the trial court did not err by failing to conduct juror-by-juror questioning on this topic. Therefore, trial counsel was not ineffective for not requesting juror-by-juror questioning, and appellate counsel was not ineffective for failing to raise a losing argument regarding trial counsel's performance.
Lang argues he was denied a fair and impartial jury in violation of the Sixth and Fourteenth Amendments, raising juror-bias and jury-composition claims. His juror-bias claim argues the trial court erred in the way it removed a juror who was related to Cheek, one of the murder victims (Doc. 16 at 48). His jury-composition claim finds error in the trial court's failure to seat African-American jurors (id. at 112).
Lang raised the juror-bias claim on direct appeal to the Ohio Supreme Court, which adjudicated the claim on the merits. Lang, 129 Ohio St. 3d at 520-23. He preserved the claim for federal habeas review.
The State argues Lang procedurally defaulted his jury-composition claim because the "Ohio courts" found res judicata barred review of the claim (Doc. 23 at 92-94). Lang raised the jurycomposition claim in his postconviction petition (Doc. 18-4 at 2239-41), and submitted three exhibits to support the claim: (1) information from the Stark County Jury Commissioner's Office explaining its juror selection process; (2) the report of the Ohio Commission on Racial Fairness, Commissioned by the Supreme Court of Ohio, published in 1999; and (3) information from the U.S. Census Bureau regarding Stark County's population (Doc. 19-2 at 2509-85; Doc. 19-3 at 2586-2607). He asserted that trial counsel were ineffective for failing to ensure that the jury included African-Americans (see Doc. 18-4 at 2239, ¶ 125). Ruling on Lang's postconviction petition, the trial court found it "unclear" whether Lang was asserting an ineffective-assistance-of-trial-counsel claim or a trial-error claim (Doc. 19-5 at 2898). But it concluded that in either case res judicata barred both claims because the issues could have been raised on direct appeal, but were not (see id. at 2899).
Lang then appealed the denial of his postconviction petition to the Ohio court of appeals, raising both the ineffective-assistance and trial-error claims (see Doc. 20-1 at 2953-54). The Ohio court of appeals addressed only the ineffective-assistance-of-trial-counsel claim (see id. at 3087-88), affirming the trial court's application of res judicata to that claim. The court noted that the Ohio Commission on Racial Fairness report Lang offered in support of his postconviction claim was published in 1999, "well before [Lang's] . . . trial, and [that Lang] point[ed] to no part of the report that would have made a difference in his case" (id.). The Ohio court of appeals' decision is the lastexplained state-court judgment regarding procedural default of the jury-composition claim, and is therefore the focus of this Court's review for procedural default. See Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000).
Under Ohio law, res judicata precludes postconviction relief on "any defense or any claimed lack of due process that was raised or could have been raised by the defendant at trial, which resulted in that judgment or conviction, or on an appeal from that judgment," State v. Cole, 2 Ohio St.3d 112, 113 (1982) (emphasis in original), unless the petition presents extra-record evidence to support a postconviction-review claim, see, e.g., State v. Smith, 17 Ohio St.3d 98, 101 n.1 (1985); State v. Perry, 10 Ohio St.2d 175, 179 (1967) (concluding that if defendant "had no means of asserting the constitutional claim there asserted until his discovery, after the judgment of conviction, of the factual basis for asserting that claim," then the claim "was not one that could have been raised . . . before the judgment of conviction, and hence could not reasonably be said to have been . . . waived").
However, extra-record evidence will not overcome the res judicata bar when "the allegations outside the record upon which [a petitioner] relies appear so contrived, when measured against the overwhelming evidence in the record . . . as to constitute no credible evidence . . . justify[ing] the trial court's application of the principles of res judicata" despite the extra-record evidence. Cole, 2 Ohio St. 3d at 114. Ohio courts have limited this "new evidence" exception to extra-record evidence that "demonstrate[s] that the petitioner could not have appealed the constitutional claim based upon information in the original record." State v. Lawson, 103 Ohio App.3d 307, 315 (Ct. App. 1995). The extra-record evidence must be "competent, relevant and material," and meet a "threshold standard of cogency; otherwise it would be too easy to defeat the holding of Perry by simply attaching as exhibits evidence which is only marginally significant and does not advance the petitioner's claim beyond mere hypothesis and a desire for further discovery."
If res judicata applies to a claim, it serves as an adequate and independent state ground to bar review of the claim by a habeas court. See, e.g., Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000). But, "an incorrect application of a state res judicata rule does not constitute reliance on an adequate and independent state ground." Wogenstahl v. Mitchell, 668 F.3d 307, 341 (6th Cir. 2012) (citing Durr, 487 F.3d at 434-35, and Richey v. Bradshaw, 498 F.3d 344, 359 (6th Cir. 2007) (noting the Sixth Circuit has "declined to observe Ohio's procedural bar and instead [has] proceeded to the merits of an ineffective-assistance claim when we have concluded that Ohio improperly invoked its res judicata rule")).
Lang argues that his jury-composition claim is not procedurally defaulted because the Ohio postconviction court improperly applied the res judicata rule to the claim. He points to Hill v. Mitchell, 400 F.3d 308 (6th Cir. 2005), for the proposition that "[u]nder Ohio law, a petitioner properly presents a claim in postconviction when the claim relies on evidence de hors the record" (Doc. 33 at 134).
But it is clear in Hill and related cases that a habeas court cannot circumvent Ohio's res judicata doctrine and reach the merits of any claim dismissed on res judicata grounds because a petitioner presented some supporting, extra-record evidence on postconviction review. Rather, a habeas court may disregard the procedural bar only where the extra-record evidence is competent, relevant, and material. In Hill, a capital habeas case, the petitioner presented an affidavit of an addiction specialist who testified during the mitigation phase of petitioner's trial. The addiction specialist stated that trial counsel contacted him only after the guilt phase of the trial; he did not meet the petitioner until the morning he testified; and, had he earlier evaluated the petitioner, he could have testified about the petitioner's specific addictions, not simply addiction in general. Hill, 400 F.3d at 314.
This Court has thoroughly examined the extra-record evidence Lang submitted with his postconviction petition in support of his jury-composition claim. For the reasons explained more fully below, this Court finds that the extra-record evidence would not have materially changed the jurycomposition claim that Lang could have presented on direct appeal without the evidence. Because the Ohio courts properly applied res judicata to the jury-composition claim, it is procedurally defaulted. See Wogenstahl, 668 F.3d at 342.
Lang further argues that his postconviction review counsel's ineffective assistance should excuse procedural default of the jury-composition claim, asserting counsel failed "to fully and exhaustively develop the factual predicate, including rebuttal of facts that were only to be created by the court of appeals" (Doc. 33 at 135). He cites to Martinez v. Ryan, 132 S.Ct. 1309 (2012), in which, as explained above, the Supreme Court held that the "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. at 1315. Martinez applies only to claims of ineffective assistance of trial counsel. See Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013) ("The Court in Martinez purported to craft a narrow exception to Coleman [v. Thompson, 501 U.S. 722 (1991))]. We will assume that the Supreme Court meant exactly what it wrote.").
Finally, Lang claims that the procedural posture of this case makes procedural default "inappropriate." He contends that because he filed his postconviction petition before completion of his direct appeal, the postconviction court "suggest[ed] that the petitioner brought this claim too soon, not too late" (Doc. 33 at 135). There is no authority for this argument. Lang procedurally defaulted his jury-composition claim.
The Sixth Amendment commands that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury" U.S. CONST. amend. VI. The Sixth Amendment "reflect[s] a profound judgment about the way in which law should be enforced and justice administered. . . . Providing an accused with the right to be tried by a jury of his peers g[ives] him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968). Indeed, the right to a trial by an impartial jury "lies at the very heart of due process." Smith v. Phillips, 455 U.S. 209, 224 (1982). Due process requires "a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Id. at 217.
The Ohio Supreme Court addressed on direct appeal Lang's second ground for relief, predicated on juror bias. It first provided the following summary of the relevant facts:
Lang, 129 Ohio St. 3d at 520-21 (paragraph numbers omitted).
The Ohio Supreme Court first addressed Lang's claim that Juror 386's presence on the panel tainted the rest of the jury. It ruled:
Id. at 521 (paragraph numbers omitted).
The Sixth Amendment "guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961) (quoting In re Murchison, 349 U.S. 133 (1955)). An impartial jury is one in which every juror is "`capable and willing to decide the case solely on the evidence before [the juror]." McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984). However, the Constitution "does not require a new trial every time a juror has been placed in a potentially compromising situation." Smith v. Phillips, 455 U.S. 209, 217 (1982). "Qualified jurors need not . . . be totally ignorant of the facts and issues involved." Murphy v. Florida, 421 U.S. 794, 799-800 (1975). The Supreme Court has explained:
Irvin, 366 U.S. at 723. Moreover, in addition to AEDPA's statutory presumption that state-court factual findings are correct, the Court has emphasized that habeas courts must give "special deference" to a trial court determination of juror credibility. See, e.g., Darden v. Wainwright, 477 U.S. 168, 176-78 (1986); Patton v. Yount, 467 U.S. 1025, 1038 (1984).
McDonough involved a products liability claim based on a lawnmower accident. During voir dire, plaintiffs' counsel asked prospective jurors, as a group, whether anyone in the jurors' immediate family had sustained "severe" injuries. A three-week trial resulted in a defense verdict. Soon thereafter, plaintiffs discovered a juror failed to disclose during voir dire that the juror's son suffered a broken leg when a tire exploded. Plaintiffs moved for a new trial, in part because the court had denied their motion to approach the jury (a motion not specifically based on the juror's failure to respond to questioning about family member injuries). The district court denied the motion for a new trial, finding the trial had been fair in all respects. The Tenth Circuit reversed the district court's judgment and ordered a new trial, holding the juror's failure to respond to questioning about a family member's injuries prejudiced the plaintiffs' right to a peremptory challenge. The Supreme Court reversed, holding that the plaintiffs were "not entitled to a new trial unless the juror's failure to disclose denied [them] their right to an impartial jury." McDonough, 464 U.S. at 549.
McDonough thus recognized that a litigant "is entitled to a fair trial but not a perfect one, for there are no perfect trials." Id. at 553 (internal quotation marks and citations omitted). Harmless error rules, the Court explained, embody the principle "that courts should exercise judgment in preference to the automatic reversal for `error' and ignore errors that do not affect the essential fairness of the trial." Id. The Court also observed that voir dire is designed "to protect [the right to an impartial jury] by exposing possible biases, both known and unknown, on the part of potential jurors." Id. at 554. But on balance, the Court concluded the "important end of finality" would be ill served if it were "[t]o invalidate the result of a three-week trial because of a juror's mistaken, though honest, response to a question, [as that would] insist on something closer to perfection than our judicial system can be expected to give." Id. at 555. "[T]o obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." Id. at 556. "The motives for concealing information may vary," the Court explained, "but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial." Id.
The Sixth Circuit has interpreted the rule announced in McDonough to apply only in cases where the juror's failure to disclose information was deliberate, not merely a mistake. Zerka, 49 F.3d at 1185; see also Dennis v. Mitchell, 354 F.3d 511, 520 (6th Cir. 2003). In cases where a juror's failure to respond to voir dire questioning is the result of an honest mistake, the pre-existing rule applies, requiring proof of actual juror bias or, in exceptional circumstances, implied bias. Zerka, 49 F.3d at 1186 n.7. This view is supported by Justice Blackmun's concurring opinion in McDonough, joined by Justices Stevens and O'Connor, in which he noted:
McDonough, 464 U.S. at 556-57 (Blackmun, J., concurring).
Lang argues that he is entitled to relief under McDonough. First, Lang claims Juror 386 "lied" about her relationship to Cheek during voir dire by not answering the questions posed to her "fully, fairly or truthfully," and that "her dishonesty was neither a result of a misunderstanding nor a technical falsehood." Second, Lang claims that if Juror 386 had been honest, Juror 386 would have been challenged for cause (Doc. 33 at 47-48). But the Ohio Supreme Court made no finding of deliberate concealment; it determined only that Juror 386 "failed to disclose" the information. See Lang, 129 Ohio St. 3d at 520. And Lang offers no evidence of the juror's deliberate dishonesty other than conclusory assertions.
Moreover, the record does not establish that Juror 386 intentionally withheld information about her relationship to Cheek. As noted by the Ohio court, many questions posed to the jurors through questionnaires and voir dire focused on the depth and source of the jurors' knowledge about the victims' deaths and the criminal case arising from their deaths (see, e.g., Doc. 22-1 at 142-48). The jurors also were asked if they had any relationship to the judge, witnesses, or counsel in the case (see, e.g., id. at 26, 54, 56-57, 59). This Court reviewed the voir dire proceedings and questionnaires, but found no question specifically asking jurors if they were related to either Burditte or Cheek. However, the trial court did ask if any of the potential jurors or "someone [who] is very close to [them]" had any involvement in the criminal justice system, including as a victim or offender (id. at 63-64). However, as explained below, based on Juror 386's responses to the trial court's questions after the parties learned of Juror 386's relationship to Cheek, Juror 386 apparently did not consider Cheek someone "very close" to her. Thus, Lang has not demonstrated that Juror 386 deliberately concealed information, and McDonough does not apply to this case.
Implied bias is found only in "certain `extreme' or `exceptional' cases." Johnson v. Luoma, 425 F.3d 318, 326 (6th Cir. 2005) (quoting United States v. Frost, 125 F.3d 346, 379 (6th Cir. 1997)). A finding of implied bias is appropriate "only `where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.'" Id. (quoting Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988)).
However, the implied-bias doctrine is not supported by clearly established Supreme Court precedent. In Smith, the defendant discovered after his trial that, while the trial was pending, the prosecutors handling his case had learned (but not disclosed) that a juror applied for a job in the prosecutor's office. Smith, 455 U.S. at 212-24. The Court held neither the juror's conduct nor the prosecutor's failure to disclose the juror's job application denied the defendant due process. Id. at 220-21. It refused to impute bias to the juror, explaining:
Id. at 217.
Further, the Sixth Circuit repeatedly has expressed doubt over the continued viability of the implied-bias doctrine since Smith. See Johnson, 425 F.3d at 326 ("Courts that have reviewed the Smith decision, including this circuit, have suggested that the majority's treatment of the issue of implied juror bias calls into question the continued vitality of the doctrine."); see also Treesh v. Bagley, 612 F.3d 424, 437 (6th Cir. 2010) (same).
Moreover, even if the implied-bias doctrine were clearly established federal law, Lang has not demonstrated the doctrine applies here. When the trial court questioned Juror 386 about her relationship to Cheek, she immediately admitted her stepfather was Cheek's brother (Doc. 22-2 at 940). She explained to the court that she lived with her grandparents in Ohio, not with her mother and stepfather in Florida, and does not "really talk to her [mother] that much" (id. at 941); "[i]t had been a while" since she had seen Cheek (id. at 942); while she attended Cheek's funeral with her stepfather, she denied knowing anything about her death or the case, other than what she read in the newspaper (id. at 943-46); and she did not talk to anyone in her family about the case (id. at 944). She assured the court that her relationship to Cheek did not "cause [her] any personal problem" or prevent her from being impartial (id. at 943).
Juror 386's relationship to Cheek is not the type of close relationship that permits application of the implied-bias doctrine. See United States v. Weir, 2014 WL 5002080, at *4 (6th Cir. 2014) (unpublished) ("Even assuming implied bias is still a basis for finding juror disqualification (a question we do not answer), the relationship at issue in this case (where the juror's sister's husband's brother had been married to the victim's daughter) is not sufficiently close to warrant the doctrine's application."); Hedlund, 750 F.3d at 808 n.11 (9th Cir. 2014) (finding that even if implied bias doctrine were clearly established federal law, doctrine would not apply where one of the victims had been married to a cousin of the juror's stepfather).
The Ohio court could reasonably conclude that Juror 386's brief presence on the jury did not affect the fundamental fairness of Lang's trial by denying him the right to an impartial jury. Juror 386's relationship to Cheek was brought to the trial court's attention on July 12, 2007, only hour into the trial and long before the start of jury deliberations (Doc. 22-2 at 864). The trial court found "no risk" that Juror 386 would talk to other jurors prior to the first break on July 12, when Juror 386 was questioned about her relationship to Cheek (id. at 866). Juror 386 readily confirmed her relationship to Cheek and admitted to attending Cheek's funeral with her stepfather (id. at 940, 943-44). She denied saying anything to the other jurors about the relationship (id. at 944-45). The trial court then granted the parties' joint motion to exclude Juror 386 (id. at 948, 950), and questioned, as a group, the remaining jurors about whether Juror 386 had spoken to them about her relationship to Cheek. The remaining jurors were silent (id. at 953). Trial counsel did not object to trial resuming or move for a new trial on the ground of juror bias at any time.
Lang next contends that "[t]he state courts could not make a credibility determination because no evidence was taken about the impact of Juror 386 on the remaining jurors" (Doc. 33 at 50). But as discussed below, the Ohio Supreme Court reasonably determined that the trial court conducted a hearing that comported with due process, a hearing in which "[t]he other jurors . . . indicated . . . that they had had no conversations with [Juror 386] about this matter." Lang, 129 Ohio St. 3d at 521.
Accordingly, in rejecting this claim, the Ohio Supreme Court did not contravene or unreasonably apply clearly established Supreme Court precedent, nor did it make an unreasonable determination of fact. Lang's juror-bias claim fails.
Lang, 129 Ohio St. 3d at 521 (paragraph numbers omitted).
Lang does not explain why the trial court's decision violates § 2254(d)(1) or (d)(2). See, e.g., United States v. Crosgrove, 637 F.3d 646, 663 (6th Cir. 2011) ("Because there is no developed argumentation in these claims, the panel declines to address [the defendant's] general assertions of misconduct in witness questioning and closing statements."). Moreover, as discussed below, the Ohio Supreme Court reasonably decided that the trial court's actions with regard to Juror 386 comported with due process. This sub-claim fails.
Lang, 129 Ohio St. 3d at 521-23 (paragraph numbers and internal citations omitted).
"[T]rial judges are afforded considerable discretion in determining the amount of inquiry necessary, if any, in response to allegations of jury misconduct," United States v. Logan, 250 F.3d 350, 378 (6th Cir. 2001) superseded by rule on other grounds as recognized in McAuliffe v. United States, 514 F. App'x 542, 549 (6th Cir. 2013), because "`the trial judge is in the best position to determine the nature and extent of the alleged jury misconduct,'" United States v. Griffith, 17 F.3d 865, 880 (1994) (quoting United States v. Shackelford, 777 F.2d 1141, 1145 (6th Cir. 1985)).
In Remmer, a criminal tax evasion case, the Court observed that "[t]he integrity of jury proceedings must not be jeopardized by unauthorized invasions." Remmer, 347 U.S. at 229. Thus, once a jury in a criminal case is empaneled, "any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial." Id. While the presumption is not conclusive, the Court in Remmer held that the government bears the burden of showing the contact with the juror was harmless to the defendant. Id. When informed of any improper communication with a juror, the trial court "should determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate." Id. at 229-30.
Lang contends that the Ohio court unreasonably applied Remmer by shifting the burden to Lang to prove prejudice when Juror 386's conduct was "presumptively prejudicial" (Doc. 33 at 49). Lang is mistaken. The Supreme Court modified the Remmer rule in Smith v. Phillips, placing the burden on the defendant to show actual prejudice from juror misconduct. Smith, 455 U.S. at 215 ("This Court has long held that the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias."). See also Sheppard v. Bagley, 657 F.3d 338, 348-49 (6th Cir. 2011) (Batchelder, J., concurring) ("Remmer was abrogated in part by the Supreme Court in Smith v. Phillips, which held that the defendant has the burden to show that there has been actual prejudice.") (emphasis in original). The Court explained in Smith, "due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. . . . [I]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote." Smith, 455 U.S. at 217. The Court also noted that state-court findings are presumptively correct in habeas actions. Id. at 218.
Lang also argues that the Ohio Supreme Court improperly applied Remmer by failing to question Juror 386 more extensively, or to question each juror individually to determine bias (Doc. 16 at 48; Doc. 33 at 48-49). This Court disagrees. The Ohio Supreme Court complied with Remmer and Smith when it decided that the trial court's inquiry into Juror 386's potential misconduct and its effect on the other jurors was sufficient to comport with due process. The Ohio court also reasonably determined the facts supporting its decision.
"[T]he selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial." Taylor v. Louisiana, 419 U.S. 522, 528 (1975).
Lang alleges the following facts to support this claim:
(Doc. 16 at 112). The only evidence Lang offers to support these allegations or to demonstrate racial disparity is the Ohio Commission on Racial Fairness's 1999 report. The 1999 report is insufficient evidence to meet the Duren test or otherwise establish that the racial composition of Lang's jury violated his constitutional rights. In relevant part, the 1999 report merely notes various comments made at Commission public hearings and lists recommendations for improving minority representation in jury pools, like the use of "driver's license records[ or] state identification records" as additional sources for potential jurors (Doc. 16 at 112-13). Lang does not cite to portions of the 1999 report showing "systemic exclusion" in Stark County, Ohio. Indeed, the 1999 report recommends further research to "determine accurately the pattern of minority under-representation in juries in Ohio state courts" (id. at 113).
Lang claims the trial court committed numerous errors, including:
1. Admitting unreliable scientific evidence (fifth ground for relief);
2. Denying access to grand jury transcripts (eighth ground for relief);
3. Admitting prior consistent statements (ninth ground for relief);
4. Admitting prejudicial evidence (tenth ground for relief), including
5. Trivializing mitigating evidence (fifteenth ground for relief).
(See Doc. 16 at 70, 82, 84, 86-88, 95-98, and 108). Lang claims each of these errors (or all the errors together) violated his constitutional rights.
The Ohio Supreme Court addressed on the merits claims 2, 4.a and 4.f, and 5, as enumerated above. Lang preserved these claims for federal habeas review. See Lang, 129 Ohio St. 3d at 518-20, 529-30, 531-32, 554-55.
However, Lang procedurally defaulted the remaining trial-error claims (see Doc. 23 at 69-70, 72, and 84). The Ohio Supreme Court found Lang waived these claims because his trial counsel failed to object to the evidence at trial. See Lang, 129 Ohio St. 3d at 523, 528, 530-31, 532. Failure to adhere to Ohio's well-established "contemporaneous objection rule" is an independent and adequate state ground that bars federal habeas review. See, e.g., Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006). The procedural bar remains even if the state appellate court affirmed the trial court's ruling on plain-error review. See, e.g., Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006) ("[A] state court's plain error analysis does not save a petitioner from procedural default"); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000) ("[P]lain error review does not constitute a waiver of state procedural default rules[.]").
Lang responds that because he received ineffective assistance of trial counsel, this Court must excuse the procedural defaults (Doc. 33 at 87-88, 99-100, 105). Even considered on their merits, this Court finds the trial court either did not err in admitting certain evidence, or committed only harmless error. Therefore, Lang cannot show trial counsel's failure to object to the evidence prejudiced him.
"[F]ederal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990). The Supreme Court declared in Estelle v. McGuire, 502 U.S. 62 (1991):
Id. at 67-68. Generally, "alleged errors in evidentiary rulings by state courts are not cognizable in federal habeas review." Moreland v. Bradshaw, 699 F.3d 908, 923 (6th Cir. 2012). Evidentiary rulings made by state courts may "rise to the level of due process violations [if] they `offend[] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)).
An erroneous evidentiary ruling is subject to harmless-error review. A habeas petitioner may be entitled to relief based on a constitutional error at trial only if the petitioner "can establish that [constitutional error] resulted in `actual prejudice.'" Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). A petitioner suffers actual prejudice when an error has a "substantial and injurious effect or influence in determining the jury's verdict." Id. at 623. "The proper standard by which to gauge the injurious impact of the admission of constitutionally infirm evidence is to consider the evidence before the jury absent the constitutionally infirm evidence." Brumley v. Wingard, 269 F.3d 629, 646 (6th Cir. 2001).
This Court reviews this claim de novo. As noted above, the Ohio Supreme Court found that Lang waived this claim and conducted a plain-error review of the issue. The Sixth Circuit has held that a state court's review of a procedurally barred claim for plain error does not constitute an "adjudication on the merits" under AEDPA. Because AEDPA deference does not apply to such a claim, a federal court reviews the claim de novo. See, e.g., Frazier v. Jenkins, 770 F.3d 485, 496 n.5 (6th Cir. 2014) (collecting cases); Benge v. Johnson, 474 F.3d 236, 246 (6th Cir. 2007) ("Because Benge could have met his burden under Strickland despite not being able to demonstrate plain error, this analysis did not constitute an `adjudication on the merits' of Benge's ineffective-assistance-ofcounsel claim."); Lundgren, 440 F.3d at 765 ("Plain error analysis is more properly viewed as a court's right to overlook procedural defects to prevent manifest injustice, but is not equivalent to a review of the merits.").
The Ohio Supreme Court provided the following factual account:
Lang, 129 Ohio St. 3d at 523 (paragraph numbers omitted).
Lang complains that Foster's opinion was unreliable, and the trial court erred in admitting it. First, Lang argues that the DNA evidence's admission violated the Equal Protection Clause of the Fourteenth Amendment. He asserts that Ohio evidentiary rules and governing case law allow a scientific expert to testify in a criminal case in terms of "possibility." In civil cases, an expert must express opinions in "probability" terms. By lowering the standard of admissibility for expert opinions in criminal cases, he argues, Ohio's expert-opinion evidentiary rules undermine the reliability of evidence and infringe on a criminal defendant's right to a fair trial (Doc. 16 at 71-73).
The Ohio Supreme rejected this claim on plain-error review, reasoning:
Lang, 129 Ohio St. 3d at 525 (paragraph numbers and internal citations omitted). This Court agrees with the state court's analysis.
The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). Thus, "[t]he threshold element of an equal protection claim is disparate treatment; once disparate treatment is shown, the equal protection analysis to be applied is determined by the classification used by government decision-makers." Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006).
As the Ohio Supreme Court reasoned, Lang cannot prevail on this claim because he cannot show that criminal defendants and civil litigants are similarly situated. Criminal prosecutions and civil litigation are governed by different laws and separate rules of evidence and procedure; they implicate and protect entirely distinct rights and interests. Indeed, the Supreme Court has observed that "the equal protection clause [does not] exact uniformity of procedure. The legislature may classify litigation and adopt one type of procedure for one class and a different type for another." Dohany v. Rogers, 281 U.S. 362, 369 (1930). See also Glatz v. Kort, 650 F.Supp. 191, 198-99 (D. Colo. 1984) (finding individual committed pursuant to criminal procedures not similarly situated to those committed involuntarily pursuant to civil procedures); Higgs v. Neven, 2013 WL 5663127, at *16 (D. Nev. 2013) ("Because [p]etitioner, a criminal defendant, is not similarly situated to a civil litigant, the fact that different state rules exist in criminal and civil contexts provides no basis for an equal protection claim."); Harris v. Ashby, 2001 WL 863601, at *6 (N.D. Tex. 2001) ("For equal protection purposes, it is clear from the purpose and nature of the penalties that civil contemnors are not similarly situated with criminal contemnors.").
Lang further argues that the admission of Foster's testimony violated his Sixth Amendment right to confrontation because "[n]o amount of cross-examination could remedy the improper admission of this evidence and the subsequent argument of the prosecutor" (Doc. 33 at 93). The Sixth Amendment's Confrontation Clause protects a defendant's right "to be confronted with the witnesses against him." U.S. CONST. amend. VI. Lang's counsel effectively cross-examined Foster, eliciting favorable testimony. Lang is entitled to nothing more. "`[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis in original)). See Lang, 129 Ohio St. 3d at 525.
Finally, Lang argues this evidence should have been excluded under due process principles because the prosecutor used it in an unfair manner during closing arguments to show that Lang was the principal offender (Doc. 16 at 73-76). "Unfair prejudice does not mean the damage to a defendant's case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest decision on an improper basis." United States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993) (internal quotation marks and citations omitted). Nothing in Foster's testimony was improper. She did not "tell the jury that Lang's DNA was on the gun" as Lang argues (Doc. 16 at 73). Rather, she clearly and accurately explained to the jury the results of her testing, which showed that Lang "could not be excluded" as a source of the DNA on the weapon.
Lang, 129 Ohio St. 3d at 518-19 (paragraph numbers and internal citations omitted).
Lang claims that AEDPA does not apply to this claim because the Ohio Supreme Court did not refer to or discuss "federal standards" (Doc. 16 at 83). As already discussed, a state court need not cite any federal law for AEDPA deference to apply. Lang argues in the alternative that the Ohio court's decision rejecting this claim violates both § 2254(d)(1) and (d)(2) (Doc. 16 at 84).
There is no clearly established Supreme Court precedent recognizing a constitutional right to obtain access to grand jury transcripts under any circumstances. "Of course, the standard practice since approximately the 17th century has been to conduct grand jury proceedings in secret, without confrontation, in part so that the defendant does not learn the State's case in advance." Giles v. California, 554 U.S. 353, 371 (2008) (parentheses omitted) (citing S. Beale, W. Bryson, J. Felman, & M. Elston, Grand Jury Law and Practice § 5.2 (2d ed. 2005)). Lang also does not specify any unreasonable state court factual findings.
The Ohio Supreme Court explained the context of the testimony at issue. It recounted:
Lang, 129 Ohio St. 3d at 528 (emphasis in original). Defense counsel's suggestion that Walker may have a motive to lie in exchange for a favorable plea agreement, the state court explained, allowed the State to introduce Walker's prior consistent statements to rehabilitate his testimony. It summarized:
Id. at 527.
Lang agues that Walker's prior consistent statement violated his right to confrontation because Walker was not subject to cross-examination when he made the earlier statement to the police. He cites Crawford v. Washington, 541 U.S. 36 (2004), arguing hearsay statements, including prior consistent statements, are inadmissable unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant with respect to the hearsay statement (Doc. 16 at 84-85).
Lang misstates Crawford's holding. As the Ohio Supreme Court noted in its plain-error analysis of this claim, the Court in Crawford held that the Confrontation Clause bars "testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford, 541 U.S. at 53-54. However, the Court also noted, "[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . . The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." Id. at 59 n.9 (citing California v. Green, 399 U.S. 149, 162 (1970)). Walker testified at trial and was subject to cross-examination. Therefore, admission of his prior statement to police did not violate the Confrontation Clause.
The Ohio Supreme Court addressed this claim on the merits:
Lang, 129 Ohio St. 3d at 529-30.
Lang argues that evidence regarding a defendant's gang involvement is "inherently prejudicial." He cites Dawson v. Delaware, 503 U.S. 159, 165 (1992), which found constitutional error in a stipulated admission that the defendant belonged to a white racist prison gang. The evidence was irrelevant at the punishment phase of his trial (Doc. 33 at 104).
Here, the Ohio court found the gang evidence of which Lang complains irrelevant and inadmissable, but went on to find the error harmless, a conclusion not contrary to, or an unreasonable application of, Dawson. The majority opinion in Dawson concluded by stating, "The question whether the wrongful admission of the Aryan Brotherhood evidence at sentencing was harmless error is not before us at this time, and we therefore leave it open for consideration by the Supreme Court of Delaware on remand." 503 U.S. at 168-69. Justice Blackmun, in a concurring opinion, noted his "understanding that the Court . . . does not require application of harmless-error review on remand." Id. at 169 (Blackmun, J., concurring) (emphasis in original).
As courts have noted since Dawson, the Supreme Court has yet to resolve whether harmless error applies in this context. See, e.g., United States v. Kane, 452 F.3d 140, 143 n.1 (2nd Cir. 2006); Watts v. Quarterman, 448 F.Supp.2d 786, 813 (W.D. Tex. 2006). In light of absence of clearly established federal law, § 2254(d)(1) bars relitigation of this issue. Further, the Ohio court's finding of harmless error was reasonable.
As the Ohio court explained in its plain-error analysis, this testimony was irrelevant and should have been excluded. But the error was harmless, because Dittmore never testified that Lang was involved in a gang. Dittmore also testified that he worked closely with narcotics investigators, testimony that provided an alternative explanation for his involvement in this murder investigation. See Lang, 129 Ohio St. 3d at 530.
Lang, 129 Ohio St. 3d at 531. This Court agrees.
Lang, 129 Ohio St. 3d at 531 (internal citation omitted). This claim also fails.
Lang, 129 Ohio St. 3d at 531-32 (emphasis in original) (paragraph numbers and internal citation omitted).
Lang does not explain how the Ohio Supreme Court's reasoning was contrary to, or an unreasonable application of, clearly established federal law. The state court's decision is reasonable, and Lang's claim fails.
The Ohio Supreme Court addressed this claim on the merits, explaining:
Lang, 129 Ohio St. 3d at 554-55 (paragraph numbers and internal citations omitted).
Lang first argues that the Ohio Supreme Court's conclusion that the trial court properly assessed his youth was an unreasonable application of Lockett v. Ohio, 438 U.S. 586 (1978), Eddings v. Oklahoma, 455 U.S.104 (1982), and Graham v. Collins, 506 U.S. 461 (1993). He contends the trial court effectively "failed to consider his youth or age" when it discounted the fact that he committed the crime just three days after his nineteen birthday because he was a "street-hard[ened] individual." He posits, "Regardless of the offender's sophistication, it is their actual age that is most significant in their adjudication" (Doc. 33 at 129-30). In Lockett, the Supreme Court held:
Id. at 604. In Eddings, the Court held that the sentencer may not "refuse to consider, as a matter of law, any relevant mitigating evidence." Eddings, 455 U.S. at 115 (emphasis in original). "The sentencer . . . may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration." Id. The Court noted that "the chronological age of a minor is itself a relevant mitigating factor of great weight," but stressed that "the background and mental and emotional development of a youthful defendant [must also] be duly considered in sentencing." Id. at 116. In Graham, the Court found that the Texas death penalty statute
Graham, 506 U.S. at 472.
The Ohio Supreme Court's resolution of Lang's claim regarding the mitigating factor of his youth is consistent with these cases: it found the trial court properly considered Lang's age a mitigating factor, but assigned Lang's age minimal weight because Lang was a "street-hard[ened] individual."
The Sixth Circuit has rejected arguments like Lang's. In Sheppard v. Bagley, 657 F.3d 338 (6th Cir. 2011), the Ohio Supreme Court assigned little mitigation weight to the petitioner's youth (he was eighteen-years-old at the time of his crime) because he was a "man of full legal age" and an "adult with all the privileges and responsibilities of an adult." Id. at 346. The Sixth Circuit found the state court's conclusion complied with Eddings. The Ohio Supreme Court's analysis was "not a refusal to consider [the petitioner's] youth `as a matter of law'; it [was] a decision on how to weigh the factor." Id. (citing Eddings, 455 U.S. at 115). The Sixth Circuit rejected the petitioner's contention that the state court decision was unreasonable because "he could not have been any younger and still be eligible for the death penalty [because that contention]. . . assume[s] that, for purposes of this factor, youth must be measured strictly by chronological age." Id. "Ohio courts see the factor as more complicated than that," the court continued. "That is their prerogative . . . ." Id. Lang, too, argues for a strict application of chronological age in mitigation, a rule that is not supported by Eddings or its progeny.
Lang next argues that the Ohio Supreme Court unreasonably concluded that the trial court did not err in considering the nature and circumstances of the offense, even though trial counsel never raised offense factors as a mitigating evidence. He contends that, in doing so, the trial court violated Ohio law and Gardner v. Florida, 430 U.S. 349 (1977) (Doc. 33 at 130-31). This argument fails because Ohio law requires trial courts to "consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense" in assessing a death sentence. Ohio Rev. Code § 2929.04(B). This statute provided sufficient notice to Lang and his counsel, and the state court did not misapply Gardner.
Finally, Lang argues that the Ohio Supreme Court unreasonably applied Eddings and Porter v. McCollum, 130 S.Ct. 447 (2009) (per curiam), when it rejected his argument that the trial court "reduced to irrelevance and inconsequence" his history, character and background (Doc. 33 at 131-32). In Porter, the Supreme Court found petitioner's trial counsel ineffective for failing to present mitigating evidence regarding the petitioner's mental health, family background, or military service. The Court further found that the Florida Supreme Court's decision that the petitioner was not prejudiced by counsel's deficient performance at the mitigation phase of trial was an unreasonable application of federal law; the finding "either did not consider or unreasonably discounted the mitigation evidence adduced in the post-conviction hearing." Id. at 454. That is not the case here. The Ohio Supreme Court reasonably found that the trial court carefully considered the mitigating evidence (see Doc. 17-5 at 1385-92).
Furthermore, the Ohio Supreme Court conducted a thorough, independent review of the mitigating and aggravating circumstances presented at the penalty phase of Lang's trial. Lang, 129 Ohio St. 3d at 556-60. It concluded:
Id. at 560. Lang does not object to the Ohio Supreme Court's reweighing of the evidence. The Ohio Supreme Court's review of Lang's sentence cured any constitutional error the trial court may have made in its sentencing opinion. See, e.g., Sheppard, 657 F.3d at 347; Hoffner v. Bradshaw, 622 F.3d 487, 498 (6th Cir. 2010); McGuire v. Ohio, 619 F.3d 623, 630 (6th Cir. 2010).
Lang argues in his sixth ground for relief that the State failed to produce sufficient evidence demonstrating that Lang murdered Burditte and Cheek while "committing, attempting to commit, or fleeing immediately after committing or attempting to commit kidnaping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and . . . was the principal offender in the commission of the aggravated murder" (Doc. 16 at 76-80 (citing Ohio Rev. Code § 2929.04(A)(7))). Lang raised this claim on direct appeal to the Ohio Supreme Court, which addressed it on the merits. Lang, 129 Ohio St. 3d at 542-45. Lang preserved this claim for federal habeas review.
The Due Process Clause of the Fourteenth Amendment requires a state to prove every element of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315-16 (1979). A habeas court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. at 319 (emphasis in original). "[T]he Jackson inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Herrera v. Collins, 506 U.S. 390, 402 (1993). This standard "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. This Court must limit its review to evidence adduced during trial. Herrera, 506 U.S. at 402. Sufficiency-of-the-evidence claims are assessed "with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n.16. Because both Jackson and AEDPA apply to Lang's sufficiency claim, this Court's review requires deference at two levels. "`First, deference should be given to the trier-of-fact's verdict, as contemplated by Jackson; second, deference should be given to the [state court's] consideration of the trier-of-fact's verdict, as dictated by AEDPA.'" Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011) (quoting Tucker v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008)).
The Ohio Supreme Court addressed this claim on the merits:
Lang, 129 Ohio St. 3d at 542-45 (paragraph numbers and internal citations omitted).
Lang argues that the Ohio court's decision was contrary to, or an unreasonable application of, Jackson, and was based on an unreasonable determination of the facts. Lang contends that the evidence presented at his trial did not prove that he was the principal offender, or "actual killer," because it consisted primarily of Walker's and Seery's testimony, which was not credible, and unreliable DNA evidence (Doc. 16 at 79). This claim fails.
This Court already has rejected Lang's claims regarding the reliability of the DNA evidence. Consistent with Jackson, the Ohio Supreme Court rejected attacks on Walker and Seery's credibility. See, e.g., Johnson v. Mitchell, 585 F.3d 923, 931 (6th Cir. 2009) (explaining that a habeas court reviewing a state-court judgment for sufficiency of the evidence "do[es] not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute [the habeas court's] judgment for that of the jury"). The Ohio Supreme Court's analysis Jackson analysis was not an unreasonable application of clearly established federal law. And Lang identifies no unreasonable factual determinations on the part of the state courts.
Lang claims the State violated his constitutional rights by hiding exculpatory evidence and improperly destroying potentially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). He contends the police did not fully investigate Walker, Lang's accomplice. And in ending their investigation "prematurely," Lang argues, the police "prevented the preservation of any other evidentiary materials; the effect was the equivalent of spoliation of collected evidence" (Doc. 16 at 80-81).
The State argues that Lang did not present this claim to state courts. The claim is unexhausted but procedurally defaulted (Doc. 23 at 79). Lang replies that he did in fact raise this claim as his fifth proposition of law on direct appeal to the Ohio Supreme Court. However, he argues that because the Ohio Supreme Court "refused to order the prosecutor to deliver the files so that Brady material could be discovered . . . . he could not develop this claim in that forum." (Doc. 33 at 96).
The State is correct. The claim to which Lang refers challenged the sufficiency of the evidence offered at trial to convict him as the principal offender; it was not a Brady claim (see Doc. 18-1 at 1519-21, 1576-84). Although Lang's sufficiency-of-the-evidence claim is related to his habeas Brady claim in that they both concern evidence regarding Walker's role in the murders, they are different claims with distinct legal theories. Lang did not present a Brady claim to a state court.
A federal habeas claim that was not raised in state court may be deemed unexhausted "if the state still provides a remedy for the habeas petitioner to pursue, thus providing the state courts an opportunity to correct a constitutionally infirm state court conviction." Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). On the other hand, "if a state remedy is no longer available at the time of the federal petition, the exhaustion doctrine poses no bar to federal review." Wagner v. Smith, 581 F.3d 410, 415 (6th Cir. 2009) (citing 28 U.S.C. § 2254(b)(1)(B) and Engle v. Isaac, 456 U.S. 107, 125 n.28 (1982)). Brady claims generally rely on new evidence not found in the trial record, so a return to state court to litigate those claims is possible in some situations under Ohio law. See Ohio Criminal Rule 33(B) (defendant may be entitled to new trial after deadline for filing motion for new trial if he was "unavoidably prevented" from filing motion or there is "newly discovered evidence"); Ohio Rev. Code § 2953.21(A)(1) (second, successive, or untimely postconviction petition permitted if petitioner shows: (1) that he was "unavoidably prevented from discovery of the facts" of the claim, or the claim is based on a new federal or state right the Supreme Court has recognized that applies retroactively; and (2) but for constitutional error at trial, no reasonable factfinder would have found petitioner guilty of an offense or eligible for a death sentence); Hanna v. Ishee, 694 F.3d 596, 613-14 (6th Cir. 2012) (recognizing that Ohio's postconviction statute codifies Ohio's res judicata rules, which generally bar courts from considering any issue that could have been, but was not, raised on direct appeal, unless the claim relies on evidence outside the record).
However, in this case Lang does not offer any evidence outside the record. Instead he notes the absence of evidence, an argument that could have been made in his original postconviction petition. Lang has no available state remedy for this claim in state court, therefore, and habeas review of this claim is not barred by the exhaustion doctrine. Moreover, even if this claim were unexhausted, § 2254(b)(2) permits courts to deny unexhausted habeas claims on the merits where appropriate. See Hanna, 694 F.3d at 610 (denying petitioner's claim on the merits "notwithstanding a failure to exhaust" the claim).
As the State argues, this claim also is procedurally defaulted because Lang has no remaining avenues of relief in state court (Doc. 23 at 79). See O'Sullivan, 526 U.S. at 848 (if a petitioner fails to fairly present any federal habeas claims to the state courts but has no remaining state remedies, then the petitioner has procedurally defaulted those claims); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001) (Ohio's doctrine of res judicata, barring courts from considering any issue that could have been, but was not, raised on direct appeal, is an "independent and adequate state ground" upon which to find habeas claim procedurally defaulted).
Lang argues this Court should excuse procedural default of this claim because of ineffective assistance of his postconviction counsel, who failed "to fully and exhaustively develop the factual predicate, including rebuttal of facts that were only to be created by the court of appeals" (Doc. 33 at 97-98). As with his procedurally defaulted jury-composition claim, he relies on Martinez. As explained above, Martinez is inapt. Lang identifies no other grounds for excusing default of his Brady claims.
Lang's Brady claim also lacks merit. "[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. To establish a Brady violation "[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Lang argues here that the police possibly failed to preserve key evidence that may have shown Walker was the principal offender. He provides no evidence to support these allegations. Lang's claim is speculative. See, e.g., United States v. Aleman, 548 F.3d 1158, 1164 (8th Cir. 2008) ("[The defendant] only speculates that interviews of [the undisclosed] individuals would have provided evidence favorable to his defense, however, and mere speculation is not sufficient to sustain a Brady claim." (internal ellipses and quotation marks omitted)); Cunningham v. City of Wenatchee, 345 F.3d 802, 812 (9th Cir. 2003) (bad faith is not established when the exculpatory value of unpreserved evidence is entirely speculative).
Lang alleges prosecutorial misconduct rendered his trial fundamentally unfair because the prosecutor:
(Doc. 16 at 88-95, 98-102).
The State argues that "insofar as the Supreme Court of Ohio invoked Ohio's contemporaneous objection rule," Lang's prosecutorial-misconduct claims are procedurally defaulted because Lang's counsel did not object to the alleged misconduct at trial (Doc. 23 at 81-82, 95). Lang responds that the State has waived a procedural default claim — the State does not identify the prosecutorialmisconduct sub-claims it claims are defaulted (Doc. 33 at 104-05). Lang cites to Slagle v. Bagley, 457 F.3d 501, 514 (6th Cir. 2006), in which the Sixth Circuit noted that because the warden had "not identified with specificity which [prosecutor] statement[ claims] are allegedly defaulted," the warden waived her procedural default defense. Id. at 514. In addition to the warden's "vague assertion" of the procedural default defense, the court in Slagle could not determine if the relevant state court decision reached the merits of the prosecutor statement claims, or instead denied the claims by relying on a procedural bar. Id. at 515. But in Lang's case, the Ohio Supreme Court identified the prosecutorial-misconduct sub-claims — specifically, all sub-claims except sub-claims 1, 6, and 7 (as numbered above) — Lang had waived due to the contemporaneous objection rule.
Lang further agues that if this Court finds that he defaulted any of his prosecutorialmisconduct sub-claims, the default should be excused based on ineffective assistance of trial counsel (Doc. 33 at 105). Because Lang's allegations of prosecutorial misconduct lack merit, he cannot show prejudice under Strickland.
"Although the State is obliged to `prosecute with earnestness and vigor,' it `is as much [its] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" Cone v. Bell, 556 U.S. 449, 469 (2009) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). A prosecutor's "improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none." Berger, 295 U.S. at 88.
Darden v. Wainwright, 477 U.S. 168 (1986), controls this Court's analysis of Lang's prosecutorial misconduct claims. There, the Court held that to prevail on such claims, "it is not enough that the prosecutors' remarks were undesirable or even universally condemned. . . . The relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Id. at 181 (internal quotation marks omitted). See also United States v. Young, 470 U.S. 1, 11 (1985) ("Nevertheless, a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial."). "[T]he appropriate standard of review for such a claim on writ of habeas corpus is `the narrow one of due process, and not the broad exercise of supervisory power.'" Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 642). "[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). The Darden standard "is a very general one, leaving courts `more leeway . . . in reaching outcomes in case-by-case determinations.'" Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (quoting Yarlborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The Ohio Supreme Court rejected this claim on the merits:
Lang, 129 Ohio St. 3d at 535 (paragraph numbers and internal citation omitted).
The Ohio Supreme Court's analysis is correct. "[A] criminal defendant [in a capital case] has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause." Witherspoon v. Illinois, 391 U.S. 510, 521 (1968). At the same time, the State has a "legitimate interest in excluding those jurors whose opposition to capital punishment would not allow them to view the proceedings impartially, and who therefore might frustrate administration of a State's death penalty scheme." Wainwright v. Witt, 469 U.S. 412, 423 (1985). Therefore, during voir dire, a prosecutor may probe into prospective jurors' views of the death penalty, and may challenge for cause a potential juror who appears unwilling to return a capital sentence. Id. at 423-24. The prosecution's conduct here, therefore, was proper, and this claim is meritless.
Lang, 129 Ohio St. 3d at 536 (paragraph number omitted). Because, as explained above, this Court agrees that the DNA evidence was properly admitted, the prosecutor's arguments about the DNA evidence were proper.
Lang, 129 Ohio St. 3d at 536-37 (paragraph numbers and internal citations omitted).
This Court agrees. "The prosecution necessarily has `wide latitude' during closing argument to respond to the defense's strategies, evidence and arguments." Wogenstahl v. Mitchell, 668 F.3d 307, 329 (6th Cir. 2012) (quoting Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009)). The scope of permissible prosecution comments depends on the circumstances of the case and "what the defense has said or done (or likely will say or do)." Id. "To avoid impropriety . . .[the prosecutor's] comments must reflect reasonable inferences from the evidence adduced at trial." Id. at 331 (internal quotation marks and citations omitted). Here, the prosecutor's comments were not speculative; they constituted reasonable inferences from evidence in the record. See id.
Lang, 129 Ohio St. 3d at 537 (paragraph numbers and internal citations omitted).
Lang argues that the Ohio Supreme Court's decision violates § 2254(d)(1) and (d)(2) (Doc. 16 at 89). This Court disagrees.
"Improper vouching occurs when a prosecutor supports the credibility of a witness by indicating a personal belief in the witness's credibility thereby placing the prestige of the [government] behind the witness." Wogenstahl, 668 F.3d at 328 (internal quotation marks omitted).
United States v. Young, 470 U.S. 1, 18 (1985). But "[a] state's attorney is free to argue that the jury should arrive at a particular conclusion based upon the record evidence." Wogenstahl, 668 F.3d at 329 (internal quotation marks and citations omitted). "Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding." Young, 470 U.S. at 11.
Even assuming the prosecutor's closing argument statements were improper, the statements were not so flagrant as to render Lang's trial fundamentally unfair. The prosecution's comments were made in closing argument in the context of an extensive trial record. References to Walker, Seery, and Short were supported by evidence that had been presented in court and demonstrated no special knowledge of the prosecution. Finally, the prosecutor's comments were isolated and unlikely to mislead the jury or prejudice Lang. The Ohio Supreme Court's decision rejecting this claim did not unreasonably apply clearly established federal law or rest on an unreasonable determination of fact.
Lang cites only DePew v. Anderson, 311 F.3d 742 (6th Cir. 2002), in support of this claim (Doc. 33 at 107). There, the Sixth Circuit observed, "When a prosecutor's actions are so egregious that they effectively `foreclose the jury's consideration of . . . mitigating evidence,' the jury is unable to make a fair, individualized determination as required by the Eighth Amendment." DePew, 311 F.3d at 748 (quoting Buchanan v. Angelone, 522 U.S. 269, 277 (1998)). This claim fails because none of the prosecutor's actions during the guilt phase were "egregious" or otherwise constituted misconduct.
Lang, 129 Ohio St. 3d at 548-49 (paragraph numbers and internal citations omitted).
Lang argues that because the Ohio Supreme Court applied the wrong legal standard to this claim (i.e., by failing to consider the cumulative effect of the challenged statements), AEDPA deference does not apply (Doc. 33 at 115). AEDPA deference does not apply to this claim for a different reason: the Ohio Supreme Court reviewed the claim for plain error.
Lang first challenges the prosecutor's statements that "until the age of 10 life seemed to be pretty good" and that "there [was] absolutely no evidence" supporting Lang's half-sister and mother's testimony about Lang's time living with his father (Doc. 16 at 99 (quotation marks omited)). Lang points to Washington v. Hofbauer, 228 F.3d 689 (6th Cir. 2000), in which the court stated that "[m]isrepresenting facts in evidence can amount to substantial error because doing so `may profoundly impress a jury and may have a significant impact on the jury's deliberations.'" Id. at 700 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 646 (1974)). "This is particularly true when a prosecutor misrepresents evidence," the court explained, "because a jury generally has confidence that a prosecuting attorney is faithfully observing his obligation as a representative of a sovereignty." Id. (citing Berger, 295 U.S. at 88). The Supreme Court in Donnelly distinguished the "`consistent and repeated misrepresentation' of a dramatic exhibit in evidence," like calling an exhibit "blood-stained" when the prosecutor knew the exhibit was stained with paint, from "[i]solated passages of a prosecutor's argument, billed in advance to the jury as a matter of opinion not of evidence." 416 U.S. at 646.
This Court agrees with the Ohio Supreme Court that the prosecutor's statement concerning Lang's childhood was supported by evidence in the record and therefore rested on a "reasonable inference[] from the evidence adduced at trial." Wogenstahl, 668 F.3d at 331. This Court also agrees with the Ohio Supreme Court's finding that the prosecutors' remarks regarding the speculative nature of Lang's evidence concerning his time with his father are troubling. Lang's step-sister and mother's testimony did, in fact, constitute evidence of this period of Lang's life, even if the State questions the weight this evidence should be given.
Nevertheless, these comments were isolated, spanning only seven sentences of the prosecution's 15-transcript-page-long closing argument (see Doc. 22-3, Mit. T., at 92, 102). Viewed in context, the prosecutors' comments did not "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181 (internal quotation marks omitted).
Lang also asserts that the prosecutor improperly "faulted Lang" for not taking his medications when he was a child (see Doc. 16 at 99 (quoting Doc. 22-3, Mit. T., at 92)). Lang argues this statement misrepresented facts in the record, turned mitigating circumstances into aggravating circumstances, and urged the jury to consider non-statutory aggravating factors. In doing so, the prosecutor misled the jury and prejudiced Lang (Doc. 16 at 100).
This Court disagrees. The prosecutor did not misrepresent the evidence. Lang's mother testified that her son "did not [take his medication] all the time" (Doc. 22-3, Mit. T., at 74). Nor was Lang denied due process by the prosecutor's argument. The prosecution may offer, and the jury is free to consider, "a myriad of factors to determine whether or not death is the appropriate punishment" once statutory aggravating factors are met. Barclay v. Florida, 463 U.S. 939, 950 (1983). And the "consideration of a non-statutory aggravating circumstance, even if contrary to state law, does not violate the Constitution." Smith v. Mitchell, 348 F.3d 177, 210 (6th Cir. 2003) (citing Barclay, 463 U.S. at 939).
Lang, 129 Ohio St. 3d at 549 (paragraph numbers omitted).
This Court again agrees with the Ohio Supreme Court. Because there was no evidence offered at either phase of trial regarding the meaning Lang now ascribes to his nickname — a nickname mentioned only three times in the prosecutor's brief opening statement, (Doc. 22-3, Mit. T., at 28-30) — it is speculative to assume the jury understood the nickname in the same manner.
Lang, 129 Ohio St. 3d at 550 (paragraph numbers and internal citations omitted).
In Young, the Supreme Court found error in a prosecutor's request that the jury "do its job." Young, 470 U.S. at 1047-48. However, the Court found this comment did not "influence[ the jury] to stray from its responsibility to be fair and unbiased." Id. at 1048. This Court finds the prosecutor's remark did not undermine the jury's ability to fairly judge the evidence.
Viewing all of Lang's allegations of prosecutorial misconduct cumulatively and in the context of the entire trial, this Court concludes Lang's claims do not entitle him to habeas relief. This Court finds only a few instances of possibly improper conduct among these claims. Even if those acts were improper, and this Court considered the misconduct as a whole, Lang has failed to demonstrate that the misconduct was "so pronounced and persistent that it permeate[d] the entire atmosphere of the trial." See Wogenstahl, 668 F.3d at 335.
Lang complains the trial court erred by accepting the jury's recommended sentence of death for Cheek's murder but only life without the possibility of parole for Burditte's murder. He argues that because he was convicted of the same charges for both crimes, with the same aggravating factors, the jury and trial court "improperly weighed who the victim was as an aggravating circumstance" in violation of the Eighth and Fourteenth Amendments and Ohio law (Doc. 16 at 95-98).
Lang raised this identical claim on direct appeal (see Doc. 18-1 at 1519-20). In his Petition, he implicitly concedes that the Ohio Supreme Court adjudicated the claim on the merits for purposes of AEDPA by arguing that the Ohio Supreme Court's decision violates § 2254(d)(1) and (d)(2) (Doc. 16 at 98). However, in his Traverse, Lang argues the Ohio Supreme Court did not adjudicate this claim on the merits because it "misrepresented Lang's claim" as an inconsistent-verdict claim (Doc. 33 at 111). As Harrington makes clear, the substance of a state court's analysis is irrelevant in determining whether the claim was "adjudicated on the merits" under AEDPA. Harrington, 131 S. Ct. at 784-85. Lang raised this claim in state court and the Ohio Supreme Court ruled on the claim.
Therefore, AEDPA applies.
In rejecting Lang's claim, the Ohio Supreme Court reasoned:
Lang, 129 Ohio St. 3d at 553 (paragraph numbers and internal citations omitted).
Neither Lang nor the State identify clearly established federal law governing Lang's argument comparing his sentences for the murders of Burditte and Cheek, respectively. See White v. Woodall, 134 S.Ct. 1697, 1706-07 (2014) ("The critical point is that relief is available under § 2254(d)(1)'s unreasonable-application clause if, and only if, it is so obvious that a clearly established rule applies to a given set of facts that there could be no fairminded disagreement on the question."). Dunn v. United States, 284 U.S. 390 (1932), on which the State relies (Doc. 23 at 87), governs a jury verdict with inconsistent findings of guilt on separate counts that involve the same evidence. See Dunn, 284 U.S. at 393-94. Furman v. Georgia, 408 U.S. 238 (1972), and Gregg v. Georgia, 428 U.S. 153 (1976), on which Lang relies (Doc. 33 at 108-09), govern challenges to state sentencing procedures which a defendant argues result in the arbitrary imposition of a capital sentence. See, e.g., Godfrey v. Georgia, 446 U.S. 420, 428 (1980).
Lang also argues that his death sentence is arbitrary and capricious because the jury and trial court must have improperly considered the non-statutory aggravating circumstance that Cheek was not a drug dealer, which Lang claims is the only factor distinguishing her from Burditte (Doc. 33 at 111-12). But the Ohio Supreme Court, addressing this very argument, found the sentences complied with state law, and "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." Bradshaw v. Richey, 546 U.S. 74, 76 (2006). And as a matter of federal law, in Barclay v. Florida, 463 U.S. 939, 950 (1983), the Court held that "[o]nce the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty, . . . the jury then is free to consider a myriad of factors to determine whether or not death is the appropriate punishment." The Court continued:
Lang asserts the cumulative effect of all the constitutional errors he alleges deprived him of a fair trial and penalty-phase hearing (Doc. 33 at 137-38). Because Lang raised his cumulative-error claim in state postconviction proceedings, he preserved the claim for federal habeas review. But "cumulative error claims are not cognizable on habeas because the Supreme Court has not spoken on this issue." Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006).
This Court must determine whether to grant a Certificate of Appealability ("COA") for any of Lang's grounds for relief. The blanket grant or denial of a COA "undermine[s] the gate keeping function of certificates of appealability, which ideally should separate the constitutional claims that merit the close attention of counsel and this court from those claims that have little or no viability." Porterfield v. Bell, 258 F.3d 484, 487 (6th Cir. 2001). Lang may not appeal this Court's denial of any portion of his Petition "[u]nless a circuit justice or judge issues a certificate of appealability," which "may issue . . . only if the applicant has make a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). Lang must show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks omitted). With respect Lang's procedurally defaulted claims, Lang must show "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.
Applying these standards, this Court denies a COA for grounds for relief 3, 4, 6, 8, 10 (only sub-claims regarding Lang's red clothing and recorded statement), 11 (sub-claims A, F, and G), 12, 14, 15, and 17. Similarly, this Court denies a COA for Lang's plainly defaulted grounds for relief, specifically grounds 5, 7, 9, 10 (except sub-claims relating to Lang's red clothing and recorded statement), 11 (sub-claims B, C, D, and E), 13, and 16. This Court grants a COA for Lang's ineffective assistance of trial counsel claim regarding mitigating evidence (ground 1) and his juror bias claim (ground 2).
For the foregoing reasons, this Court denies Lang's Petition for Writ of Habeas Corpus. This Court further certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could be taken in good faith as to Lang's first and second grounds for relief, and this Court issues a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal Appellate Rule 22(b) as to those claims only. As to all remaining claims, this Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability, 28 U.S.C. § 2253(c).
IT IS SO ORDERED.
