JAMES G. CARR, Senior District Judge.
This is a capital habeas corpus case under 28 U.S.C. § 2254.
In 2000, a jury in the Common Pleas Court of Cuyahoga County, Ohio, convicted the petitioner, Quisi Bryan, of the aggravated murder of Wayne Leon, an Officer of the Cleveland Police Department. The jury recommended that Bryan receive a death sentence, and the trial court adopted the recommendation and sentenced Bryan to death.
Bryan now seeks habeas relief on sixteen grounds.
For the following reasons, I grant the petition on Bryan's claim that the prosecution
In August, 2000, the Cuyahoga County grand jury indicted Bryan on three counts of aggravated murder, two counts of attempted murder, and multiple counts of firearms-related offenses.
Each aggravated-murder count carried four death-penalty specifications that, if proved, would make Bryan eligible for a death sentence.
The specifications alleged Bryan had killed Officer Leon: 1) while Leon was engaged in his official duties as a police officer, see O.R.C. § 2929.04(A)(6); 2) with the specific purpose to kill a police officer, see id.; 3) to escape detection, apprehension, trial, or punishment for another offense, see O.R.C. § 2929.04(A)(3); and 4) as part of a "course of conduct" in which Bryan had killed or attempted to kill two or more people, see O.R.C. § 2929.04(A)(5).
With the assistance of two lawyers qualified to handle capital cases, Bryan went to trial on these charges in October, 2000, less than three months after Officer Leon's murder. According to the Ohio Supreme Court, whose factual determinations are presumptively correct on habeas review, 28 U.S.C. § 2254(e)(1), the prosecution's evidence showed that:
State v. Bryan, 101 Ohio St.3d 272, 274-77, 804 N.E.2d 433 (2004).
Bryan did not dispute that he killed Officer Leon.
Rather, Bryan claimed he fired the fatal shot as part of a "reflexive motion" Bryan made after seeing Officer Leon reach for his police radio. That claim, and the evidence the defense adduced to support it, led the trial court to issue a lesser-included-offense instruction on voluntary manslaughter.
According to the Ohio Supreme Court:
Bryan, supra, 101 Ohio St.3d at 277-78, 804 N.E.2d 433.
After hearing this evidence, the jury rejected Bryan's manslaughter defense and convicted Bryan on all counts, save for one count of aggravated murder (which alleged Bryan killed Officer Leon with prior calculation and design (see Doc. 58 at 206)) and one count of improperly discharging a firearm.
At the penalty phase, the jury unanimously recommended that Bryan receive a death sentence, and the court adopted the recommendation and sentenced Bryan to death. O.R.C. § 2929.03(D)(2), (3) (defining when jury may recommend death sentence and when court may adopt that recommendation).
Bryan appealed to the Ohio Supreme Court, raising nineteen claims:
(Doc. 31 at 38-193).
In a decision entered in March, 2004, the Ohio Supreme Court affirmed Bryan's convictions and death sentence. Bryan, supra, 101 Ohio St.3d at 278-306, 804 N.E.2d 433. The court denied Bryan's ensuing motion for reconsideration. State v. Bryan, 102 Ohio St.3d 1449, 808 N.E.2d 399 (2004).
After obtaining new counsel, Bryan filed, in August, 2004, an application to reopen his appeal under Ohio Supreme Court Rule of Practice XI, § 6. That Rule permits a condemned defendant to request the state high court to reopen his appeal and consider whether his appellate counsel was ineffective.
Bryan's application alleged appellate counsel had been ineffective for not raising twenty additional claims:
(Doc. 31 at 451-58).
The Ohio Supreme Court denied Bryan's application to reopen because Bryan did not file the application within ninety days after the court had entered its judgment on the merits, as the court's rules required. (Doc. 31 at 488); see OH Sup.Ct. Prac. R. XI, § 6(A).
While his direct appeal was pending, Bryan filed, in December, 2001, a postconviction petition in the Cuyahoga County Common Pleas Court. With the assistance of counsel, Bryan raised two claims:
(Doc. 33 at 98-131; Doc. 35 at 35-45).
In May, 2009, the state trial court denied the petition without holding an evidentiary hearing. (Doc. 35 at 132-44; Doc. 36 at 54-57).
Bryan appealed to the Eighth District Court of Appeals, raising the same claims he had raised in the trial court. He also contended the postconviction trial court should have: 1) permitted him to conduct discovery; and 2) appointed a neuropsychologist.
Bryan then petitioned the Ohio Supreme Court for leave to appeal, seeking to press the same claims he had raised in the appellate court. On December 15, 2010, the court declined jurisdiction. State v. Bryan, 127 Ohio St.3d 1461, 938 N.E.2d 363 (2010).
Bryan filed his § 2254 petition on August 15, 2011, raising sixteen grounds for relief:
In 2013, I denied Bryan's motion to conduct discovery and expand the record. (Doc. 71). Now, after further study of the petition, the Warden's return, and Bryan's traverse, this case is ripe for decision.
The habeas corpus statute "bars relitigation" of those claims a state court adjudicated on the merits, unless the "state court's decision was contrary to federal law then clearly established in the holdings of" the United States Supreme Court, "involved an unreasonable application of such law," or "was based on an unreasonable determination of the facts." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 785, 178 L.Ed.2d 624 (2011); 28 U.S.C. § 2254(d).
A state court's decision is "contrary to" clearly established federal law only if the court "applies a rule that contradicts the governing law set forth in [Supreme] Court cases" or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
Bryan's first claim is that the trial court violated his right to a fair trial by: 1) having ex parte communications with Juror Bross regarding Bross's concerns about serving on the jury; and 2) removing Bross from the jury during trial after concluding his views on capital punishment impaired his ability to serve as an impartial juror.
On October 30, 2008 — the first day of evidence — Bross approached the trial court and, during an off-the-record exchange, "expressed concern that his photograph had appeared" in a recent edition of the Cleveland Plain Dealer. Bryan, supra, 101 Ohio St.3d at 282, 804 N.E.2d 433.
The photo depicted the jurors attending a jury-view of the gas station where the murder occurred. Id. at 283 n. 1, 804 N.E.2d 433. (Although the Ohio Supreme Court described the photo as depicting only the jurors' backs, which suggests their faces were not visible, Bross would later testify his stepfather and coworkers had identified him in the photo.).
The judge "briefly talked to Bross and told him not to mention it to any fellow jurors, that [the judge] would look into the matter and discuss it with him sometime later." Id. at 283, 804 N.E.2d 433. Immediately after its exchange with Bross, the court obtained a copy of the Plain Dealer and — contrary to repeated misstatements in Bryan's pleadings (e.g., Doc. 64 at 3) — notified counsel for both sides of his colloquy with Bross. Bryan, supra, 101 Ohio St.3d at 283, 804 N.E.2d 433.
When the trial court spoke with Bross the next day, October 31 — again outside the presence of counsel — Bross again "expressed reservations about continuing as a juror." Id.
The court therefore conducted an in-chambers voir dire of Bross the next day, November 1, at which both sides were present. According to the Ohio Supreme Court, at that hearing:
Bryan, supra, 101 Ohio St.3d at 283, 804 N.E.2d 433.
The Ohio Supreme Court held that the trial court acted properly in removing Bross from the jury, given his professed inability to sign a death verdict. It also concluded Bryan procedurally defaulted his claim regarding the court's ex parte communication with Bross:
Bryan, supra, 101 Ohio St.3d at 284-85, 804 N.E.2d 433.
"[A] criminal defendant 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." Uttecht v. Brown, 551 U.S. 1, 9, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007). Therefore, a court may not excuse a veniremember "simply because [he] voiced general objections to the death penalty or expressed conscientious moral scruples against its infliction." Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
But the State, too, "has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes." Uttecht, supra, 551 U.S. at 9, 127 S.Ct. 2218.
To balance these competing interests, the Supreme Court established the "substantial impairment" test, which asks "whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).
Here, the Ohio Supreme Court did not "appl[y] a rule that contradicts" Witherspoon, Witt, or any other Supreme Court precedent. Williams, supra, 529 U.S. at 405, 120 S.Ct. 1495.
Rather, the state court recognized Bryan's right to a jury that included persons who, despite their personal opposition to capital punishment, could nevertheless apply the law fairly, but concluded Bross's removal was consistent with that right. Bryan, supra, 101 Ohio St.3d at 284, 804 N.E.2d 433. For that reason, the state court's decision was not "contrary to ... clearly established Federal law." 28 U.S.C. § 2254(d)(1).
Nor was the state court's judgment that the trial court properly excluded Bross "so lacking in justification" as to be unreasonable. Harrington, supra, 131 S.Ct. at 786-87.
Bross testified unequivocally that he could not "sign a verdict form that would call for the imposition of the death penalty in this case," even if he believed the facts warranted such a sentence. (Doc. 56 at 445).
Near the end of the in-chambers voir dire, moreover, after the defense had had an opportunity to rehabilitate Bross, Bross reiterated he could not, or would not, follow the law:
(Id. at 457).
Given this testimony, there was no error in excluding Bross.
The premise of Bryan's claim to the contrary is that Bross's views on capital punishment had merely "evolved" since the trial began. (Doc. 18 at 48). Bryan notes that Supreme Court precedent contemplates that jurors hearing capital cases may change their opinions on the death penalty, given that many jurors likely have not grappled with that issue. E.g., Adams v. Texas, 448 U.S. 38, 50-51, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980).
I of course accept Bryan's contention that some jurors are likely to come to a capital case with fluid opinions about the death penalty, and that those opinions may "evolve" during trial. But Bryan's characterization of Bross's views on capital punishment as having merely evolved is simply not accurate, let alone the only reasonable interpretation of the record.
Under questioning by defense counsel, Bross testified that his inability or reluctance to vote for the death penalty stemmed from a concern that, after his photo had appeared in the Plain Dealer, people in the community — whether at work, in his personal life, or elsewhere — would recognize him as having been a juror in Bryan's case. (Doc. 56 at 446-56).
There is no evidence, moreover, suggesting Bross reached that conclusion after some sort of principled internal debate about the propriety of capital punishment generally or in Bryan's case specifically. Rather, Bross essentially acknowledged he could not prevent outside influences — primarily the reaction of his friends, family, or coworkers — from affecting his deliberations, and in particular his decision as to the proper penalty.
These comments, and the remainder of his testimony at the in-chambers voir dire, demonstrate Bross was not fit to serve on the jury.
Finally, Bryan contends the trial court's decision constituted a "tremendous abuse[ ] of discretion" because: 1) it occurred after jury selection concluded; and 2) Bross was "an ideal juror" from the defense's perspective.
There is, however, no prohibition on removing a juror mid-trial — let alone a juror whom the court determines, after a full hearing in which attorneys for both sides participated, is no longer qualified to serve. At bottom, Bryan's argument is — as the Warden aptly notes — that "since Juror Bross was originally accepted onto the jury, he should always remain a juror." (Doc. 59 at 42). As there is no foundation for that argument in any clearly established Supreme Court precedent, I reject it.
For these reasons, Bryan is not entitled to relief on his claim the trial court erred in removing Bross from the jury.
Concurring in Rushen v. Spain, 464 U.S. 114, 125-26, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (Stevens, J., concurring in judgment), Justice Stevens observed:
But "[w]hen an ex parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties." Id. at 118, 104 S.Ct. 453. The court should also conduct a hearing, "with all interested parties permitted to participate," to "determine the circumstances [of the ex parte communication], the impact thereof upon the juror, and whether or not it was prejudicial[.]" Remmer v. U.S., 347 U.S. 227, 230, 74 S.Ct. 450, 98 L.Ed. 654 (1954).
The defense has the burden of demonstrating the ex parte communication caused actual prejudice. Smith v. Phillips, 455 U.S. 209, 215-17, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
As noted above, the Ohio Supreme Court rejected this claim because Bryan failed to object in the trial court (thereby forfeiting the claim under state law) and, alternatively, did not show the trial court's ex parte communication with Bross prejudiced him.
Those holdings prompt two questions: 1) did Bryan procedurally defaulted this claim; and 2) if not, what standard of review — AEDPA's deferential standard or de novo — applies to my review of the merits of the claim.
I can bypass the first question because, despite the state court's clear invocation of a procedural bar to reject this claim, the Warden did not argue procedural default. Accordingly, the Warden forfeited that defense. Baze v. Parker, 371 F.3d 310, 320 (6th Cir.2004).
The second question may be academic, as Bryan has effectively conceded § 2254(d) governs my review of the ex parte communication claim.
In pressing this claim in his traverse, Bryan contends "the Ohio Supreme Court's decision upholding the trial court's finding ... was both and [sic] unreasonable application of law as well as an unreasonable determination of fact[.]" (Doc. 63 at 41). Nowhere does Bryan present a specific argument I should review the ex parte communication claim de novo. (Id. at 41-45).
In any event, I conclude that, under Fleming v. Metrish, 556 F.3d 520, 530-32 (6th Cir.2009), the Ohio Supreme Court's review of Bryan's claim for plain error was an adjudication on the merits.
In Fleming, the Sixth Circuit held that where a state court had reviewed a Miranda claim for "plain error," after first determining the Miranda claim was forfeited under state law, the state court's holding that any Miranda violation did not amount to plain error was an adjudication on the merits for purposes of § 2254(d).
The Sixth Circuit explained that a state court's "[u]se of the plain-error standard of review, as opposed to the clearly erroneous
A review of the Ohio Supreme Court's decision here confirms the Sixth Circuit's observation in Fleming that plain-error review entails, at least some times, a review of a claim's merits.
In deciding whether Bryan had shown plain error, the state court addressed three issues bearing on the merits of Bryan's claim: 1) the scope of the ex parte communications between the trial judge and Bross; 2) the presence of Bryan's counsel at the Remmer hearing; and 3) the resulting prejudice, if any. Bryan, supra, 101 Ohio St.3d at 284-85, 804 N.E.2d 433.
All of these considerations go directly to the merits of Bryan's claim — namely, whether he showed the challenged communications caused actual prejudice. Smith, supra, 455 U.S. at 215, 102 S.Ct. 940.
I therefore conclude the Ohio Supreme Court's no-plain-error determination was an adjudication on the merits. Fleming, supra, 556 F.3d at 532; see also Frazier v. Jenkins, 770 F.3d 485, 506 (6th Cir.2014) (Sutton, J., concurring in part and concurring in judgment) (opining that Fleming "makes clear as day that a state court's plain-error review of an issue may receive AEDPA deference when the state court addresses the merits of the federal claim").
Under that standard, Bryan's claim about improper ex parte communications fails.
The ex parte communications related to a significant aspect of the trial: Bross's concerns about continuing to serve, and doing so impartially, on the jury. Appropriately, then, the trial court immediately apprised counsel for both sides of this development and held a hearing at which both sides could — and did — inquire into the matter.
But given the record the parties developed at that hearing, the Ohio Supreme reasonably determined Bryan had not proved prejudice.
It is undisputed Bryan's lawyers did not ask "Bross about his ex parte communications with the trial judge or the effect such communications had upon Bross's ability to continue as a juror." Bryan, supra, 101 Ohio St.3d at 284, 804 N.E.2d 433. Rather, defense counsel focused on what they apparently believed to be the more pressing task: rehabilitating Bross — their "ideal"
Finally, the Ohio Supreme Court found that the conversations between the trial court and Bross concerned only Bross's ability or willingness about serving on the jury after the Plain Dealer published his photograph. The record reflects the conversations were brief, and that "once the trial judge became aware of Bross's concerns, a hearing with both counsel was conducted." Id. at 285, 804 N.E.2d 433.
In these circumstances, it was objectively reasonable for the Ohio Supreme Court to find the ex parte communication between the trial court and Bross did not prejudice Bryan. I therefore deny Bryan's first claim for relief.
In his second ground for relief, Bryan contends the trial court should have dismissed Juror McClellan for cause because her views on capital punishment substantially impaired her ability to serve on the jury.
The Ohio Supreme Court rejected this claim on direct appeal, holding that the record supported the trial court's finding that McClellan was not biased in favor of the death penalty:
Bryan, supra, 101 Ohio St.3d at 285, 804 N.E.2d 433.
Bryan contends the state court's decision involved an unreasonable application of the law and an unreasonable determination of the facts. He argues that
These contentions lack merit.
Taken as a whole, Juror McClellan's responses permitted the trial court to find her initial answers were the product of confusion, rather than a sincerely held belief that, no matter what the law might require, a death sentence was the only appropriate punishment for murder.
After both parties and the court had had an opportunity to question her, Juror McClellan told the court she was "still confused" about the legal framework that applied at the penalty phase. (Doc. 52 at 247-248).
The trial court therefore explained that, "to apply the death penalty, the aggravating circumstances must outweigh the mitigating factors," and McClellan responded, "That's right." (Id. at 248). The court then asked whether "what you [are] saying is you could follow the law," and McClellan said, "Yes." (Id. at 249).
Instead of stopping there, the trial court gave Bryan's attorneys another opportunity to prove McClellan's bias. But in response to defense counsel's questions, McClellan repeated her understanding of the law and her commitment to following it:
(Id. at 249-51).
This evidence shows unambiguously that McClellan understood the law, was willing to consider mitigating evidence, and was not committed to imposing a death sentence. It also establishes that McClellan's initial statements that she would not consider a penalty other than death was due to her confusion about the governing law.
It was therefore reasonable for the Ohio Supreme Court to affirm the trial court's decision permitting McClellan to sit on the jury.
Bryan nevertheless claims the trial court misstated the law in questioning McClellan.
As Bryan notes, a death sentence is proper under Ohio law only if the jury finds, beyond a reasonable doubt, "that the aggravating circumstances the offender was found guilty of committing outweigh
In attempting to gauge McClellan's understanding of that standard, the trial court asked what McClellan would do if she "thought there was more mitigation than aggravating circumstances. Could you then impose life or life with parole at 30 or 25?" (Doc. 52 at 248). McClellan's response was "I could." (Id.).
Bryan contends this was a misstatement of the law because "under Ohio law there is no statutory scenario which specifically requires or discusses the defendant having to demonstrate that the mitigating factors outweigh the aggravators." (Doc. 63 at 52) (emphasis omitted).
Yet the trial court never said Bryan could avoid a death sentence only if he proved the mitigating factors outweighed the aggravating factors. Rather, the court's question homed in on one basic corollary of the proposition that a death sentence was proper only if the jury found the aggravating circumstances outweighed the mitigating circumstance.
Even Bryan allows that, "as a practical matter, the circumstances the trial court described would mean that the state had not met its statutory burden of proving beyond a reasonable doubt that the aggravating circumstances outweighed the factors in mitigation, rendering a death sentence... legally forbidden." (Doc. 63 at 52-53) (emphasis in original).
Finally, Bryan makes much of the unfortunate circumstance that Juror McClellan's husband had been murdered. He argues that, given her husband's murder, McClellan would likely adhere to her belief, expressed earlier during voir dire, "that if a person takes a person's life, and they are found guilty beyond a reasonable doubt ... they should get the death penalty." (Doc. 52 at 237).
The short answer is that the trial court, after conducting a thorough voir dire of McClellan, credited her testimony she would follow the law and vote for a lesser penalty if the aggravating circumstances did not outweigh the mitigating evidence.
In other words, while McClellan may have held an opinion that death was the only appropriate sanction for murder, the trial court believed her testimony she would set that opinion aside and follow the law in fixing Bryan's sentence. On habeas review, I presume that credibility finding correct, 28 U.S.C. § 2254(e)(1), and Bryan has offered no evidence — let alone the required clear and convincing evidence — to overturn it.
For these reasons, the Ohio Supreme Court neither unreasonably applied the law nor unreasonably determined the facts in upholding the trial court's decision allowing McClellan to sit on the jury.
In his third ground for relief, Bryan argues the trial court excluded veniremembers Hawkins and Bailey after erroneously determining they were biased against capital punishment.
During voir dire, veniremember Matilda Hawkins testified she adhered to a philosophy of "thou shalt not kill. If we killed [Bryan], then we no better. Why not just let him repent maybe for life or something?" (Doc. 53 at 300).
When the court asked whether she could impose a death sentence if she found the aggravating circumstances to outweigh the mitigating evidence, Hawkins evaded the question, saying only that "I just don't want to be part of the killing." (Id. at 301).
(Doc. 53 at 303-07).
Thereafter, in response to defense counsel's question whether Hawkins could follow the law even if she might disagree with it, Hawkins said, "Oh yes, I can [follow the law]." (Id. at 310).
Before Hawkins's voir dire concluded, she had a final exchange with the trial court:
(Id. at 317-20).
The trial court disqualified Hawkins, remarking that "I don't think that she can in good faith follow the law." (Id. at 320).
After excluding Hawkins, the trial court questioned veniremember Dorothy Bailey. Bailey initially denied being "morally, ethically or religiously opposed" to capital punishment (id. at 323) and agreed she could considering imposing a death sentence in Bryan's case.
During questioning by defense counsel, however, Bailey acknowledged stating on her juror questionnaire that she did "not support the death penalty and/or capital punishment[.]" (Id. at 324). When defense counsel asked whether her opposition to the death penalty extended to "all circumstances," Bailey — after "paus[ing] a long time" — said, "I really do believe I cannot support the death penalty." (Id. at 325).
In an effort to clarify Bailey's responses, defense counsel asked Bailey about a scenario where she "found that the aggravating circumstances did outweigh the mitigating factors by evidence beyond a reasonable doubt," and asked whether Bailey "[w]ould ... go along with that." (Id. at 327). Bailey's response was "I really don't know." (Id.).
During the prosecution's examination of Bailey, she expressed further misgivings about her ability to consider sentencing Bryan to death:
(Id. at 331-38).
After this exchange, the court removed Bailey over a defense objection.
On direct appeal, the Ohio Supreme Court upheld the trial court's removal of Hawkins and Bailey:
Bryan, 101 Ohio St.3d at 286, 804 N.E.2d 433.
Bryan contends that decision was unreasonable because the trial court never made "the factual finding ... Hawkins was substantially impaired such that she could not follow the law." (Doc. 63 at 62). He also emphasizes that even "the Ohio Supreme Court ... found that `Hawkins was willing to follow the law[.]'" (Id.) (quoting Bryan, supra, 101 Ohio St.3d at 286, 804 N.E.2d 433).
Regarding Bailey's removal, Bryan argues that, while Bailey testified she did not favor capital punishment, she also testified she could follow the law. Bryan observes Bailey never said she could not impose a death sentence, only that she would "have a hard time" doing so. (Doc. 63 at 64).
These arguments are insufficient to show the Ohio Supreme Court contradicted or unreasonably applied federal law.
First, there is overwhelming evidence in the record that Hawkins's opposition to the death penalty substantially impaired her ability to serve on the jury.
Time and again, Hawkins testified to her religious conviction that the death penalty was immoral. She also told the court and the parties she did not "want to be part of the killing" and did not "want to sign the death" verdict. (Doc. 53 at 299-300, 301, 304, 305).
Although the trial court did not expressly say it found Hawkins "substantially impaired," its statement that "I don't think that [Hawkins] can in good faith follow the law" (Id. at 320) adequately expressed its finding Hawkins was substantially impaired. Uttecht, supra, 551 U.S. at 7, 127 S.Ct. 2218 ("Deference is owed regardless of whether the trial court engages in explicit analysis regarding substantial impairment; even the granting of a motion to excuse for cause constitutes an implicit finding of bias.").
Nothing in the Ohio Supreme Court's decision, moreover, supports Bryan's claim that that court "found" that Hawkins would consider sentencing Bryan to death. Rather, the court acknowledged Hawkins's testimony to that effect, but concluded the trial court had an adequate basis to reject it as incredible. Bryan, supra, 101 Ohio St.3d at 286, 804 N.E.2d 433.
Second, veniremember Bailey repeatedly expressed her opposition to capital punishment, and she did so on one occasion after "pausing a long time" to consider whether her opposition was categorical. (Doc. 53 at 325). Pressed by the prosecutor for a clear answer whether she could follow the law by signing a death verdict if the evidence warranted that sentence, Bailey could not say yes; instead, she said "I do not support the death penalty."
The trial court gave Bailey another chance to say whether she could sign a death verdict in appropriate circumstances, but Bailey could only say "I doubt it." (Id. at 338).
Given Bailey's professed opposition to the death penalty and her inability to give a yes or no answer when asked whether, if the circumstances warranted it, she could vote for a death sentence, the trial court found Bailey could not follow the law.
Bryan next alleges the Ohio courts violated his liberty interest in having those courts apply the test established in Witherspoon, supra, — rather than the Witt test — in death-qualifying the jury.
He contends the Ohio General Assembly codified, in O.R.C. § 2945.25(C), the Witherspoon standard for excusing veniremembers based on their opposition to capital punishment. That codification, Bryan argues, gave him a liberty interest in having the state courts apply only the Witherspoon test — rather than the more relaxed standard announced in Witt — to determine which jurors were qualified to serve. And because the Ohio courts applied Witt, his argument concludes, the state courts deprived him of his protected liberty interest.
Bryan raised this argument on direct appeal, but the Ohio Supreme Court summarily rejected it on the basis of its decision in State v. Rogers, 17 Ohio St.3d 174, 478 N.E.2d 984 (1985), vacated on other grounds, 474 U.S. 1002, 106 S.Ct. 518, 88 L.Ed.2d 452 (1985). Bryan, supra, 101 Ohio St.3d at 286, 804 N.E.2d 433.
Bryan is not entitled to relief on this claim, primarily because his argument rests on the false premise that an Ohio trial judge cannot exclude a juror for cause under the Witt standard.
More than thirty years ago, in Rogers, supra, 17 Ohio St.3d at 178, 478 N.E.2d 984, the Ohio Supreme Court held that "the Witt standard was applicable in Ohio through R.C. 2945.25(O)." State v. Herring, 2002 WL 33958156, *6 (Ohio App.).
Section 2945.25(O) permits a court to exclude a venire member who is "otherwise... unsuitable for any other cause to serve as a juror." O.R.C. § 2945.25(O). As the Ohio courts have explained, "[i]f a potential capital juror satisfies the Witt standard, that juror is unsuitable to serve a juror" and therefore removable in accordance with § 2945.25(O). Herring, supra, 2002 WL 33958156, at *6 (emphasis in original); accord State v. Buell, 22 Ohio St.3d 124, 139, 489 N.E.2d 795 (1986) ("R.C.2945.25(O) would allow, if found appropriate, a challenge for cause in such a case in light of Wainwright"); State v. Adams, 2011 WL 4923522, *45 (Ohio App.) (same).
For that reason, there is no merit to Bryan's claim the trial court violated his rights by using the Witt test to determine which veniremembers were qualified to sit on the jury.
Bryan next alleges the prosecution violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), when it used a peremptory strike to remove Crystal Jones, an African-American veniremember.
Jury selection began on Monday, October 23, with a pool of one hundred prospective jurors. Before coming to court, each veniremember had filled out a lengthy, seventy-two-question questionnaire.
When the first round of voir dire concluded, at the close of business on Wednesday the 25th, the court and the parties had questioned seventy-three veniremembers. According to its tally, the court had: 1) excused seventeen veniremembers because of their views on the death penalty; 2) removed thirteen veniremembers for cause unrelated to the death penalty; and 3) excused one veniremember because of a medical condition.
The court was left with forty-two qualified veniremembers with which to impanel a jury. (Doc. 54 at 3-4, 151).
The second round of voir dire began on Thursday, October 26.
At this stage, the parties took turns addressing a panel of twelve veniremembers. After each side had had an opportunity to question the panel (the prosecution preferred to question each panel member individually, while the defense opted to question the whole panel at once and engage in a few exchanges with individual jurors), the court allowed both sides to make for-cause challenges to the panel members.
Thereafter, the parties took turns exercising peremptory strikes.
Whenever one side exercised a strike, the court called a new veniremember from the pool of qualified jurors to replace the stricken panel member. The court then gave the prosecution and defense a brief opportunity to question the new veniremember and challenge him or her for cause. If the parties passed the new veniremember for cause, the parties resumed exercising their peremptory strikes.
As the trial court noted, this method permitted the parties to see which veniremember "is coming up from" the pool of qualified veniremembers to take the place of a peremptorily challenged juror. (Id. at 152).
Each side could exercise up to six peremptory strikes. (Doc. 53 at 4).
Odessa Williams, whom the parties and court referred to as "Juror No. 14" (because she was the fourteenth qualified veniremember the court accepted during the first round of voir dire) failed to report on time for the second round of voir dire.
When the court determined to strike Williams for not appearing, the defense did not object. (Id. at 176). At that juncture, the prosecutor pointed out that Williams was "an African-American individual." (Id. at 178). He continued:
(Id.).
During the first round of voir dire, Jones testified she was "a little tired" after "sitting" during a "long" day at court. (Doc. 52 at 383). In response, the prosecutor acknowledged it had been "a long day for all of us." (Id.). Jones also testified she was a cousin of a former Prosecuting Attorney of Cuyahoga County, but that this relationship would not affect her impartiality.
When the questioning turned to the death penalty, Jones said she was not "religiously or ethically or morally opposed
Her exchange with the prosecutor continued:
(Id. at 384-85).
From there, Jones's voir dire proceeded unremarkably. She testified, inter alia, she would: 1) follow the law; 2) vote for a death sentence if she determined the aggravating factors outweighed the mitigating evidence; and 3) consider a sentence other than death if the prosecution did not satisfy its burden of proof at the penalty phase. (Id. at 387-388).
During the second round of voir dire, the prosecutor questioned Jones about a statement she had made on her juror questionnaire.
On that questionnaire, Jones wrote, in response to the question whether she believed "an African-American can receive a fair trial in our Criminal Justice System," that "if there isn't a system at all then the general public would take matters in their own hands ie. `The Ox-Bow Incident.'" (Doc. 47 at 28). Jones had answered an earlier question about the fairness of the justice system generally by stating "without this system — no one would have a chance! Their [sic] would be random justice or none at all." Id.
The prosecutor asked Jones about The Ox-Bow Incident:
(Doc. 54 at 269-272).
The prosecutor had the right to exercise the first peremptory strike, and he used his strike to remove Jones. (Id. at 349). After using his second peremptory to remove a white veniremember, the prosecutor used his third strike to remove Reginald Flowers, another African-American veniremember. (Id. at 362, 372).
This prompted a Batson objection from the defense. Defense counsel argued that, although "there was a Caucasian juror who was challenged in the interim ... it is our belief that those two jurors, the African-American jurors, were challenged as a result of their race." (Id. at 374).
Defense counsel also commented on the racial makeup of the venire.
He pointed out there were "only three blacks in the initial 12. Two of them have now been struck. So we are down to one African-American. And looking at the jurors who are coming up, your Honor, it appears that there probably won't be another African-American seated." (Id. at 374-75).
As the prosecutor started to explain why he struck Jones and Flowers, his partner objected there was no need to do so until the court found that Bryan made out a prima facie case. Nevertheless, the court asked the prosecutor to place his reasons on the record:
(Id. at 377-83).
Bryan renewed his Batson claim on direct appeal,
Bryan, supra, 101 Ohio St.3d at 287-288, 804 N.E.2d 433.
"Batson held that the Equal Protection Clause of the Fourteenth Amendment prohibits prosecutors from exercising peremptory challenges on the basis of race." Davis v. Ayala, ___ U.S. ___, 135 S.Ct. 2187, 2199, 192 L.Ed.2d 323 (2015).
"When adjudicating a Batson claim, trial courts follow a three-step process." Id.
"First, the opponent of the peremptory strike must make a prima facie case that the challenged strike was based on race." U.S. v. Lawrence, 735 F.3d 385, 443 (6th Cir.2013).
"The burden then shifts to the proponent of the peremptory strike to articulate a race-neutral explanation." Id.
"Finally the trial court must determine whether the opponent of the strike has proven purposeful discrimination." Id. "[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." Rice v. Collins, 546 U.S. 333, 338, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006).
"The critical question in determining whether a defendant has proved purposeful discrimination is the persuasiveness of the prosecutor's justification for his peremptory strike." Braxton v. Gansheimer, 561 F.3d 453, 459 (6th Cir.2009) (internal quotation marks and ellipses omitted).
In determining the credibility of the prosecutor's explanation, a court may consider "the [proponent's] demeanor," "how reasonable, or improbable, the explanations are," and "whether the proffered rationale has some basis in accepted trial strategy." Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
"[T]he trial court's decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference" on direct appeal. Hernandez v. New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). "Under AEDPA," however, "even more must be shown. A federal court must accept a state-court finding unless it was based on `an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Ayala, supra, 135 S.Ct. at 2199 (quoting 28 U.S.C. § 2254(d)).
I first reject Bryan's claim the state trial court contradicted Batson by "fail[ing] to elaborate on why Bryan failed to present a prima facie case of racial discrimination." (Doc. 63 at 79).
As Bryan notes, the trial court did not decide whether the defense made a prima facie case before requiring the prosecutors to give reasons for their strikes of Jones and Flowers. But as the Supreme Court held in Hernandez, supra, 500 U.S. at 369, 111 S.Ct. 1859, "[o]nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court
There is no dispute the prosecutor offered race-neutral reasons for the strikes, and the trial court ruled on the ultimate issue of purposeful discrimination. For that reason, there is no merit to Bryan's claim the state courts contradicted Batson in failing to decide whether the defense made out a prima facie of purposeful discrimination.
For the sake of completeness, I add there is no question Bryan made out a prima facie case. First, like Jones and Flowers, Bryan is African-American.
Second, Officer Leon was white. (Doc. 37 at 412).
Third, as defense counsel noted, there were only three African-Americans in the initial twelve-person panel of veniremembers. Counsel also stated that, based upon the location of other African-Americans in the remaining pool of veniremembers, "it appears that there probably won't be another African-American seated." (Doc. 54 at 375).
Fourth, the prosecution exercised two of its first three peremptory challenges against African-Americans to exclude two-thirds of the available African-American veniremembers from the jury. The prosecution then waived its remaining peremptories. (Doc. 54 at 394).
Finally, there were no African-Americans on the jury. Bryan, supra, 101 Ohio St.3d at 288, 804 N.E.2d 433, (Doc. 31 at 271) (prosecution's direct-appeal brief recognizing lack of African-Americans on jury).
For these reasons, Bryan made out a prima facie case. E.g., Moore v. Mitchell, 708 F.3d 760, 802 (6th Cir.2013) (petitioner made out prima facie case "because he and juror Freeman are both African-American").
Bryan alleges it was unreasonable for the state trial court to credit the prosecutor's race-neutral reasons for the strike, and for the Ohio Supreme Court to affirm that finding on appeal.
First, Bryan contends the prosecutor's reliance on Jones's demeanor — i.e., that she appeared "offended" by certain of the prosecutor's questions, and allegedly viewed jury service as an inconvenience — is suspect.
He notes the trial court did not, after hearing the prosecutor's reasons, endorse them or engage in an on-the-record analysis of Jones's demeanor (let alone of how her demeanor compared with white veniremembers whom the prosecutor did not strike). Bryan further contends a comparison of Jones's responses with those of white juror shows that the white jurors, too, did not want to serve on the jury.
Second, Bryan contends the record refutes the prosecutor's claim that Jones's answers were "generally" yes-or-no type answers. Rather, Jones gave short, declarative answers only to questions that were leading or otherwise called for a yes-or-no answer. In that respect, Bryan continues, Jones's responses were no different from those of many whites on the jury.
Third, Bryan contends the prosecutor mischaracterized Jones's statements on her jury questionnaire when he claimed those responses demonstrated Jones believed the criminal justice system was unfair. In any event, Bryan notes the prosecutor did not object to the white jurors
Fourth, Bryan contends the prosecutor injected race into the equation when relying on Jones's statements about The Ox-Bow Incident.
On this point Bryan emphasizes that, while the prosecutor was explaining why Jones's feelings about that fictional work made her an unsuitable juror, the prosecutor erroneously contended The Ox-Bow Incident involved "an African-American [who] was wrongfully accused in a horrendous crime in a community[.]"
As Bryan points out, that film, and the novel on which it is based, involved the lynching of three innocent men, two of whom were white and one of whom was Mexican.
Bryan contends the prosecutor's mischaracterization of The Ox-Bow Incident revealed the prosecutor's belief that the work perturbed Jones, an African-American, because it involved a racial miscarriage of justice: the lynching of an innocent African-American by a group of whites bent on doing "justice" regardless of the truth. According to Bryan, however, Jones's race-neutral comments about The Ox-Bow Incident demonstrate only that she was concerned about miscarriages of justice, and the perils of rushing to judgment, in general and without regard to race.
Finally, Bryan asserts the prosecutor mischaracterized the record when he said Jones nodded affirmatively in response to a question whether "the jurors ... felt they were under a particularly enormous amount of pressure to return a certain verdict due to community beliefs or community views."
That nod by Jones was unremarkable, Bryan contends, because it came in response to defense counsel's statement to the jury that "I think we can all kind of agree" that the members of the twelvemember panel felt a great deal of pressure about serving on the jury and returning a certain verdict. Bryan also reiterates that feeling pressure was not uncommon among the white veniremembers whom the prosecutor did not strike.
For his part, the Warden neither acknowledges nor responds to any of Bryan's arguments.
Rather, after quoting from Jones's voir dire and the Ohio Supreme Court's decision, the Warden asserts "the trial judge viewed Jones and the prosecution ... and found that there was no discriminatory intent." (Doc. 59 at 73-74).
The question is whether, given the evidence before the Ohio Supreme Court, its decision that Bryan failed to prove intentional discrimination was "based on an unreasonable determination of the facts[.]" 28 U.S.C. § 2254(d)(2).
In denying Bryan's claim, the Ohio Supreme Court found that Bryan "offer[ed] no evidence of discriminatory intent." Bryan, supra, 101 Ohio St.3d at 288, 804 N.E.2d 433.
For the reasons set forth below, I conclude that finding lacks any reasonable basis in the record. On the contrary, the record contains a wealth of evidence establishing the prosecutor removed Jones because she was African-American.
One of the most significant pieces of evidence Bryan offered, and which neither the trial court nor the Supreme Court accounted for, was the prosecutor's belief that one of the innocent victims in The Ox-Bow Incident was African-American. (Doc. 54 at 381-83).
In citing Jones's comments about The Ox-Bow Incident as a basis for striking her, the prosecutor asserted that that work was about "a lynching" of "an African-American
Although there is no dispute that the prosecutor's identification of the victim's race in The Ox-Bow Incident was incorrect, the reference to an African-American lynching victim would be probative evidence of discrimination even if the victim had been African-American.
This is so, because the prosecutor's statement directly and unilaterally injected a racial component into the equation, and one that was absent from Jones's race-neutral responses.
Taken on their own merits, Jones's comments about The Ox-Bow Incident reflect her concern about the impact community pressure can have on the fairness of the criminal justice system.
One can imagine how a reasonable prosecutor might have viewed with favor the kind of circumspection Jones expressed, as it may have led her to consider the evidence carefully and hew closely to the law. Viewed objectively, and in light of The Ox-Bow Incident's actual scenario and themes as Jones appears to have understood them, her concerns reflect a desire simply to put the prosecution to its proof, and an intent to avoid the effects of public pressure in reaching a verdict.
But one can also imagine a prosecutor being suspicious of Jones, as her concerns with miscarriages of justice suggest she would have decided the case, not with an eye toward reaching the appropriate verdict in light of the evidence and the law, but by applying her own understanding of how to prevent a "miscarriage of justice."
Yet that was not the reason the prosecutor gave when citing The Ox-Bow Incident to justify the strike. Instead, the prosecutor referred to the "lynching" of an innocent "African-American," and claimed that "that was a concern" of Jones's. (Doc. 54 at 381).
This statement, which distorted Jones's actual responses, supports — at a minimum — a fair inference that, to the prosecutor's mind, The Ox-Bow Incident bothered Jones because it dealt with racial miscarriages of justice — among which lynching is of special resonance. And, the prosecutor's comment implies, he believed Jones's concern with such race-based miscarriages of justice made her unable or unlikely, as an African-American sitting in judgment on another African-American accused of killing a white man, to decide the case on its merits.
The prosecutor's failure to recite the facts of The Ox-Bow Incident accurately, and his express reliance on the race of the victim in that fictional work to justify his strike of Jones, are significant, uncontested indicia that Jones's race played a role in his striking her from the jury.
Also undermining the Ohio Supreme Court's judgment is the lack of record support for the prosecutor's claim that Jones "generally" answered questioned in a yes-or-no fashion. To the contrary, Jones gave appropriately detailed, non-yes-or-no to questions calling for such answers.
For example, some of the topics on which Jones did not confine herself to yes-or-no answers were:
To be sure, Jones did answer "yes" or "no" to more than a few of the questions the court and counsel posed. But the majority those answers came in response to the prosecutor's leading questions, or questions that otherwise called for a yes-or-no answer. For example, Jones answered "yes," "correct," "that's right," or "no" to questions like:
Finally, I note that, to the extent the prosecutor may have complained about Jones's yes-or-no answers during the second round of voir dire, the prosecutor himself was responsible, at least in part, for producing the cabined responses.
After asking Jones a handful of questions, the prosecutor told her "[y]ou are probably thinking I'm beating a dead horse with a lot of these questions and `Let's move on.' I'll try to do that. I've got five minutes to cut to the c[h]ase." (Doc. 54 at 268). This was hardly a signal the prosecutor was interested in hearing Jones elaborate as she answered his questions.
For these reasons, there is no reasonable basis in the record for the prosecutor's claim Jones's answers were "generally" in a yes-or-no fashion. (Doc. 52 at 381).
Although the prosecutor "detected in the way that [Jones] was answering the questions that she was somewhat offended by the nature of the questions," it is unclear from the record which questions he believed gave Jones offense. (Doc. 54 at 380). Nor, with only a cold record before me — and one that contains no contemporaneous analysis by the trial court or scrutiny of this issue by the Ohio Supreme Court — can I possibly verify Jones's reaction to that question or questions showed she was, in fact, offended.
I will therefore accept this reason as some slight evidence supporting the state
Furthermore, some of the grounds the prosecutor gave for excusing Jones apply equally to white venire members who sat on the jury.
Yes-or-No Answers. The occasions on which white jurors answered questions like Jones did — providing short, direct, yes-or-no answers when called to do so, and giving more detailed answers when appropriate — are too numerous to count. Suffice it to say nearly all white jurors gave answers in this "generally" yes-or-no manner, and the prosecutor's reliance on that ground to excuse Jones was likely pretextual.
As the Supreme Court has explained, "[i]f a prosecutor's proffered reasons for striking a black panelist applies just as well to an otherwise similar non-black who is permitted to serve, that is evidence tending to prove purposeful discrimination[.]" Miller-El v. Dretke, 545 U.S. 231, 241, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).
Fairness of the Criminal Justice System. Another reason the prosecutor gave for excusing Jones was that certain statements on her questionnaire, and some of her answers during voir dire, suggested she did not believe the criminal justice system was fair.
As Bryan notes, Jones did not say in so many words that she thought the criminal justice system was unfair. But her answers about the fairness of the criminal justice system were qualified, at best.
Although she answered "yes" to the question whether a defendant can receive a fair trial, Jones added that, "without this system — no one would have a chance! Their [sic] would be random justice or none at all." (Doc. 47 at 28). And while Jones allowed that African-Americans can receive a fair trial, she appeared to qualify that opinion by saying, "Again, if there isn't a system at all then, the general public would take matters in their own hands ie. `The Ox-Bow Incident.'" (Id.).
During voir dire, moreover, she did not directly answer the prosecutor's question whether there was a system in place to ensure fair, non-abusive use of the death penalty. Instead, Jones said she hoped such a system was in place.
These responses reflect qualified rather than wholehearted confidence in the fairness of the criminal justice system. The prosecutor could therefore properly, and sincerely, view these responses as manifesting something less than complete confidence in the fairness of Cuyahoga County's justice system.
The problem, however, is that three whites who served on the jury expressed similar opinions.
Juror McClellan, for example, told the prosecutor that she believed that "[i]n some instances justice fails," and that "juries and the justice system" judge African-Americans differently than non-African-Americans. (Doc. 54 at 209-10).
On her questionnaire, Juror Cook answered the question whether she believed the justice system was fair by saying "I hope it works." (Doc. 48 at 61). Cook also stated that "a person can receive a fair trial" in the criminal justice system only "if the right jury is chosen." (Id. at 62).
Juror Schwartz, responding to the question what her opinion of the criminal justice system was, wrote that "[i]t doesn't always do the job but it is the best we have." (Id. at 95). Responding to the question whether African-Americans can receive a fair trial, Schwartz wrote that "[b]y all the Court standards and our laws
Despite this skepticism, the prosecution raised no objection to McClellan, Cook, or Schwartz serving on the jury. Accordingly, his satisfaction with white jurors who expressed qualified support for the criminal justice system, and his disapproval of Jones on the same ground, "is evidence tending to prove purposeful discrimination[.]" Miller-El, supra, 545 U.S. at 241, 125 S.Ct. 2317.
Inconvenience of Jury Service. The prosecutor justified his strike of Jones, in part, because she stated during voir dire that she was "tired of being herded around" during voir dire. The prosecutor explained that he took that statement to mean Jones viewed jury service as an inconvenience.
But there was no meaningful difference between Jones's comments and those of Jurors Cook and Schwartz two white veniremembers who served on the jury, neither of whom were pleased to be serving on the jury.
Juror Schwartz, for example, testified during voir dire that she did not like sitting in the jury box, and that she felt "the tension" there. (Doc. 53 at 98-99).
Likewise, Juror Cook agreed with the prosecutor when he asked whether it was "a tough situation you are in right now." (Id. at 72). Then, when defense counsel asked Cook how she was "doing today," Cook responded she was merely "fair." (Id.). Finally, when defense counsel asked whether Cook wanted to serve on the jury, she said, "I don't think so." (Id. at 78).
Because two white jurors expressed their reluctance to serve on the jury — and did so at least as explicitly as Jones had — the prosecutor's reliance on that ground to remove Jones smacks of pretext. Miller-El, supra, 545 U.S. at 241, 125 S.Ct. 2317.
Rush to Judgment. Like Jones, Juror McClellan acknowledged that social pressure on juries to convict concerned her. During the second round of voir dire, defense counsel said:
(Doc. 54 at 314-15).
Although both Jones and McClellan expressed a concern about rushing to judgments and pressure to convict, the prosecutor struck only Jones.
Pressure to Return a Certain Verdict. Finally, the prosecutor cited Jones's affirmative nod when she was asked if she felt pressure to return a certain verdict as a basis for striking her. The nod at issue came in response to this statement from defense counsel during the second round of voir dire:
(Doc. 54 at 320).
After telling the panel "you don't always have to nod" (id.), defense counsel had an exchange with two veniremembers, Todd and Watson, who had demurred to counsel's statement. But Watson, who served on the jury (Doc. 44 at 7) immediately thereafter agreed with Bryan's lawyer that he could see that "in some cases there may be pressure" on a jury to convict. (Doc. 54 at 321).
Addressing the entire twelve-person panel, defense counsel continued:
(Id. at 32).
The only reasonable reading of this exchange is that, after Jones had nodded to acknowledge there is often pressure on juries, in general — and not specifically in this case — to convict, she also nodded — or at least did not demur — when defense counsel asked whether the panelists could set aside any such pressure they might feel.
Moreover, four other white jurors — McClellan, Gorsuch, Eisner, and Barry (Doc. 44 at 7) — were members of the panel to whom defense counsel posed these questions. That none openly demurred or gave defense counsel any indication but that they would set aside whatever pressure they might feel to reach a certain verdict in deciding Bryan's fate undermines the legitimacy of the prosecutor's explanation.
Finally, this component of the prosecutor's explanation highlights the importance of the Sixth Circuit's admonition in Braxton, supra, 561 F.3d at 461, that "when the purported race-neutral justification is predicated on subjective explanations like body language or demeanor, an on-the-record analysis of each of the elements of a Batson challenge is especially important."
But the state trial court failed to conduct such an analysis, and the prosecutor did not use follow-up questions to clarify whether Jones would be able to set aside any improper pressure she might have felt to return a guilty verdict in Bryan's case. Miller-El, supra, 545 U.S. at 246, 125 S.Ct. 2317 ("the State's failure to engage in any meaningful voir dire examination on a subject the State alleges it is concerned about is evidence suggesting that the explanation is a sham and a pretext for discrimination").
Having considered the totality of the evidence supporting and undermining the grounds for the prosecutor's strike, and mindful of my fundamental duty to defer, whenever it is reasonable to do so, to the state trial court who presided over voir dire, I conclude the Ohio Supreme Court's rejection of Bryan's Batson claim represents an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).
Most importantly, the prosecutor injected a racial component into what were otherwise race-neutral concerns Jones had expressed about rushes to judgment and miscarriages of justice.
Rather than taking her answers at face value, the prosecutor claimed that had what concerned Jones about The Ox-Bow Incident was the "lynching" of an innocent "African American." As already noted, this evidence supports the inference the prosecutor did not trust Jones to view the evidence fairly because, as an African-American, she was particularly concerned
Second, four of the bases the prosecutor cited for removing Jones — her yes-or-no answers, the supposed inconvenience to her of serving on the jury, her skepticism about the fairness of the criminal justice system, and the pressure on juries to return a certain verdict — applied equally to white jurors to whom the prosecutor raised no objection.
Third, while Jones may have nodded to indicate there was pressure on juries generally to convict, the record also shows she apparently agreed to set aside and ignore that pressure. In any event, the absence of a contemporaneous, on-the-record analysis of this demeanor-based reason for striking Jones casts even more doubt on the credibility and reliability of the prosecutor's reasons for striking Jones.
Given this evidence, a reasonable judge simply could not conclude Bryan failed to prove intentional discrimination. While I must pay great deference to the trial court's finding the prosecutor exercised the strike for race-neutral reasons, in the end there is no evidence on which to base that finding. The evidence points clearly and convincingly to the conclusion the prosecutor struck Jones because she was African-American. 28 U.S.C. § 2254(e)(1).
Because the Ohio Supreme Court's judgment rests on an unreasonable determination of the facts, Bryan is entitled to habeas relief.
Bryan next alleges prosecutorial misconduct at the guilt phase denied him a fair trial.
He contends the prosecutor erred by: 1) impeaching him with the facts underlying his prior conviction for attempted robbery; 2) inviting the jury, during summation, to base its verdict on sympathy for Officer Leon and his survivors; and 3) characterized Bryan's defense as revolving around the claim Bryan had "accidentally" shot Leon.
The Warden disputes the merits of these allegations. He also contends Bryan failed to argue on direct appeal that the prosecutor improperly called the defense theory an accident, and thus procedurally defaulted that part of his claim.
A habeas petitioner "may procedurally default a claim by failing to raise a claim in state court, and pursue that claim through the state court's ordinary appellate review procedures." Carter v. Mitchell, 693 F.3d 555, 563 (6th Cir.2012). A habeas court may not review a defaulted claim absent a showing of cause and prejudice, or that failing to review the claim will result in a fundamental miscarriage of justice. Wallace v. Sexton, 570 Fed.Appx. 443, 452 (6th Cir.2014).
Here, the record shows Bryan did not argue on direct appeal that the prosecutor mischaracterized the defense theory as an "accident" during closing argument.
Because Bryan did not present that component of his prosecutorial-misconduct claim to the state courts, and because he does not present any basis on which I could excuse the default, this part of his claim is procedurally defaulted.
To prevail on a claim of prosecutorial misconduct, "it is not enough that the prosecutor's remarks were undesirable or even universally condemned[;]" rather, "the relevant question is whether the prosecutor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).
In deciding whether any misconduct was flagrant, I consider: 1) the likelihood the prosecutor's remarks misled the jury; 2) whether the remarks were isolated or extensive; 3) whether the remarks were deliberately or accidentally made; and 4) the total strength of the evidence against the defendant. Bates v. Bell, 402 F.3d 635, 641 (6th Cir.2005).
"[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, supra, 455 U.S. at 219, 102 S.Ct. 940.
On direct appeal, the Ohio Supreme Court rejected Bryan's claim of prosecutorial misconduct:
Bryan, supra, 101 Ohio St.3d at 291-292, 293-294, 804 N.E.2d 433.
First, it was reasonable for the Ohio Supreme Court to conclude that "the prosecutor's misconduct ... was harmless in view of the overwhelming evidence of his guilt." Bryan, supra, 101 Ohio St.3d at 292, 804 N.E.2d 433.
The court recognized the prosecutor had flouted basic tenets of Ohio evidence law, and did so repeatedly. Bryan has therefore carried his burden of showing the prosecutor's action were improper.
But Bryan had to do more than highlight the prosecutor's wrongdoing; he had to show how the misconduct affected the integrity of the trial. He has failed to do so.
The line of questioning to which Bryan objects — though it contains multiple and seemingly deliberate instances of improper questioning — was brief, comprising only three pages of a trial transcript than runs to more than 3,300 pages.
Moreover, as the Ohio Supreme Court reasonably concluded, the evidence of Bryan's guilt was indeed overwhelming.
The record shows that Officer Leon parked his patrol car behind Bryan's vehicle at the Sunoco gas station. At the time, Bryan knew there were outstanding warrants for his arrest, both for violating the parole term attached to his attempted-robbery conviction and on charges of theft and receiving stolen property in Euclid, Ohio.
Bryan, unlawfully armed with a .45 caliber Glock pistol, got out of his car and met Officer Leon near the rear of the car.
The officer asked whether Bryan knew the temporary license tags on his car had expired; Bryan knew the tags were "fictitious," but he did not respond. (Doc. 57 at 449, 451). After Officer Leon took a closer look at the tags and recognized them as "fictitious." (Id. at 452). He then asked to see Bryan's driver's license, but Bryan told him he did not have it with him.
The officer started to reach for his police radio to call in a check on Bryan's license. That is when, Bryan testified, he pulled out his gun, pointed it at Leon's face, and told Leon, "Don't do that." (Id. at 458). Bryan admitted that "if [Leon] went to his mike, he was going to ultimately find out who I was." (Id.).
At that point — again, according to Bryan's own testimony — Officer Leon stepped back and reached for his own gun. Bryan immediately fired his gun into
Bryan did not dispute any of this evidence. The only question the jury had to decide was whether Bryan acted intentionally.
His testimony — that he knew about the pending warrants, that Officer Leon would discover who he was if he made the call on his police radio, and that he did not want to go back to prison — all but compelled the jury to find Bryan committed intentional murder, not involuntary manslaughter.
Finally, Bryan's manslaughter defense was hardly convincing. After all, it asked the jury to find he had not acted intentionally, even though he had pulled a gun on Leon, tried to use it to coerce Leon not to perform a lawful function of his office, and fired it when Leon reached for his own weapon.
In these circumstances, I conclude the prosecutor's improper remarks posed absolutely no danger of misleading the jury in its evaluation of the evidence. Accordingly, the Ohio Supreme Court did not unreasonably apply Supreme Court precedent in rejecting Bryan's claim the prosecutor improperly impeached him.
The Ohio Supreme Court ruled the prosecutor's closing argument did not "prejudicially affect the substantive rights of Bryan in this case in view of the overwhelming evidence of his guilt." Bryan, supra, 101 Ohio St.3d at 294, 804 N.E.2d 433.
It is unclear from that passage whether the court concluded the prosecutor's remarks were proper. If so, that would have been an unreasonable application of Darden and like cases.
The Ohio Supreme Court characterized the prosecutor's argument as an appeal "for the jury to deliver a verdict that would search for the truth and had faith in the law," which suggests the court may have concluded the argument was within the bounds of fair comment. Id. at 293, 804 N.E.2d 433.
While the court's description may have been accurate as to some of the prosecutor's remarks, it does not account for the prosecutor's blatant appeals to the jury's sympathy for Officer Leon's survivors.
Specifically, the prosecutor invited the jury to consider that "Officer Leon's small children will go on a journey of their own to find out what kind of a father they had," and reminded the jury that "that journey will take them [i.e., Leon's children] here to this courtroom." Id. He then asked the jurors to sympathize with Leon's family members, all of whom had "been left with nothing, devastated." Id.
The prosecutor also suggested the jury should return a verdict that would "[l]et Wayne Leon's children know" that "there is an accounting for the senseless killing and that their father will be remembered as a hero[.]" Id. at 294, 804 N.E.2d 433.
These comments had little to do with what the state court called a "search for truth," and much to do with inciting passions against Bryan. Indeed, the Ohio Supreme Court held that similar arguments by the prosecutor during the penalty phase were improper. Id. at 299, 804 N.E.2d 433.
Nevertheless, I conclude the state court's further determination — that the argument was not prejudicial, given the substantial evidence of guilt — was reasonable.
Although some of the prosecutor's remarks were deliberate — they were a prelude to a "poem" the prosecutor had memorized and recited — they were but a
I conclude the Ohio Supreme Court's bottom-line judgment on this issue was not contrary to, or an unreasonable application of, federal law.
In ground seven, Bryan alleges the prosecutor engaged in further misconduct during the penalty phase.
Bryan claims the prosecutor: 1) urged the jury to impose the death penalty to protect the community, satisfy community outrage, deter future killings, and protect policemen; 2) argued that the lack of mitigating circumstances surrounding the murder was, in fact, an aggravating circumstance; and 3) emphasized the effect of the murders on Officer Leon's survivors.
The Ohio Supreme Court rejected this claim
Bryan, supra, 101 Ohio St.3d at 297-300, 804 N.E.2d 433.
At first blush, Bryan's argument, which focuses on certain pieces of the prosecutor's argument, has much appeal. It suggests the prosecutor devoted his entire argument at the penalty phase to inflaming the jury's passion, rather than appealing for a reasoned and impartial assessment of the asserted grounds for a capital verdict.
But after reading the prosecutor's argument in its entirety, I concur in the Ohio Supreme Court's thorough — and reasonable — determinations that much of the prosecutor's argument was proper, and those parts that exceeded the boundaries of fair comment were not prejudicial.
First, as that court noted, the prosecutor's reference to Bryan as a "running time-bomb" was a fair comment on the evidence.
There were multiple warrants for Bryan's arrest pending at the time of the murder, Bryan believed the authorities were after him, and the jury heard Bryan's statement to his girlfriend Janie Winston, that he would submit to the authorities only on his own terms. That permitted the prosecutor to argue that Bryan was a potential danger to anyone who encountered him. The time-bomb metaphor was, under the circumstances, apt.
Second, the record refutes Bryan's claim the prosecutor argued that the lack of mitigating evidence surrounding Bryan's crimes counted as an aggravating factor.
At the penalty phase, the prosecutor need not limit his arguments in support of a capital verdict to aggravating factors; he may also highlight the lack of mitigating evidence. This is what the prosecutor did in going through the circumstances surrounding Bryan's crimes and asking the jury whether there was anything mitigating about them.
In any event, the record shows defense counsel had a full and fair opportunity to argue there was, in fact, some mitigating evidence in the crimes themselves (he pointed, for example, to the jury's acquittal of Bryan on the aggravated-murder count alleging he killed Officer Leon with prior calculation and design as some mitigating evidence).
Accordingly, even if the Ohio Supreme Court had unreasonably determined this part of the prosecutor's closing was proper, Bryan suffered no prejudice.
Third, the prosecutor acted appropriately in asking the jury to consider whether Bryan's expression of remorse — introduced via his unsworn statement — truly reflected remorse for the killing or simply regret for the predicament Bryan found himself in. This was a direct answer to "the defense argument that Bryan had
Fourth, the prosecutor's use of the term "swindle" in reference to the implausibility of the manslaughter defense approached the borderline of fair comment, as it cast doubt, and unfairly so, on the professionalism of defense counsel. But the thrust of that argument was proper, for the reasons, quoted above, in the Ohio Supreme Court's opinion.
Finally, I agree with the Ohio Supreme Court that the prosecutor engaged in an entirely improper argument in urging the jury to sentence Bryan to death because: 1) any other sentence would tell the community "it's okay to shoot a policeman now"; 2) the community demanded that penalty; and 3) Bryan's mitigation evidence, from his mother Cassandra, was entitled to no weight because, like Bryan, "Wayne Leon had a mom" and "I'm sure that Wayne Leon's children ask their mom, `Where is daddy?'"
Why the prosecutor stooped to such heavy-handed and improper tactics defies explanation, given the strength of the evidence in aggravation and the unambiguous legal prohibitions against such arguments. As the Ohio Supreme Court accurately stated: "Such emotionally charged comments did not properly rebut any mitigating evidence or previous defense arguments." Bryan, supra, 101 Ohio St.3d at 299, 804 N.E.2d 433.
But, like the Ohio Supreme Court, I am mindful that even egregious misconduct, standing alone, does not justify vacating a death sentence. Rather, Bryan is entitled to a new sentencing hearing on this ground only if the prosecutor's wrongful arguments so infected the fairness of the penalty-phase proceedings as to make the ensuing death sentence a violation of due process.
Given the substantial aggravating circumstances I cannot draw that conclusion — let alone find the Ohio Supreme Court's decision was unreasonable.
The aggravating evidence shows Bryan, merely to avoid arrest, murdered a police officer engaged in his lawful duties. He compounded the gravity of the situation by engaging in a gunfight on the streets of Cleveland with, and attempting to kill, Kenneth Niedhammer while fleeing from the scene.
In these circumstances, the Ohio Supreme Court reasonably concluded the prosecutor's deplorable conduct at the penalty phase was harmless "in view of the proven lack of significant mitigating evidence." Bryan, supra, 101 Ohio St.3d at 299, 804 N.E.2d 433.
Bryan alleges his trial lawyers performed ineffectively at the guilt phase because they failed to: 1) request the appointment of a firearms expert; 2) prevent the prosecution from introducing evidence of Bryan's conviction for attempted robbery and his status as a parole violator; and 3) recover and view the dashboard videotape from Officer Leon's patrol car.
The Warden contends Bryan has defaulted the second and third components of this claim because he did not raise them in state court. Bryan counters he preserved the claims by raising them in his application to reopen his direct appeal.
In his application to reopen, Bryan argued appellate counsel was ineffective for not raising a claim that trial counsel were ineffective vis-a-vis the "bad acts" evidence and the dashboard camera.
But that was insufficient to preserve the trial-counsel claim itself for habeas review, because an application to reopen preserves
To the extent Bryan argues he could not have properly raised, on direct appeal, a claim that counsel were ineffective vis-a-vis the videotape (because the claim depended on evidence outside the record on direct appeal), that provides no basis for avoiding a default. This is so because Bryan nevertheless failed to raise this ineffective-assistance claim in his postconviction petition.
Because Bryan presents no other argument for excusing these defaults, I hold that he defaulted the second and third components of his ineffective-assistance-of-trial-counsel claim.
For the sake of completeness, I will also address these contentions on the merits.
To prevail on his ineffective-assistance claim, Bryan must "show both that his counsel provided deficient assistance and that there was prejudice as a result." Harrington, supra, 131 S.Ct. at 787.
The performance prong calls for "an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind." Id. My review of counsel's performance is highly deferential, and I am "required not simply to give [counsel] the benefit of the doubt, but to affirmatively entertain the range of possible reasons counsel may have had for proceeding as [they] did." Pinholster, supra, 131 S.Ct. at 1407.
"With respect to prejudice, a challenger must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Harrington, supra, 131 S.Ct. at 787.
"This does not require a showing that counsel's actions more likely than not altered the outcome, but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters only in the rarest case." Id. at 792.
"Surmounting Strickland's bar is never an easy task," but "[e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Id. at 788.
Detective Thomas Lucey, of the Cleveland Police Department, testified at trial about the amount of pressure — known as the "trigger pull" — one would have to exert to fire the Glock .45 caliber pistol that killed Officer Leon:
(Doc. 57 at 149).
Detective Lucey did not suggest whether this was a significant amount of pressure. But presumably the prosecution introduced this testimony to rebut Bryan's claim that he fired the gun only "reflexively," and without the intent to kill Officer Leon.
During postconviction review, however, Bryan introduced evidence refuting Lucey's testimony. Contrary to the detective's belief, the trigger pull for the Glock.45 was only five-and-a-half pounds.
The Ohio Court of Appeals rejected Bryan's claim his trial lawyers were ineffective
Bryan II, supra, 2010-Ohio-2088, at ¶¶ 17-18.
As Bryan observes, the court of appeals apparently misunderstood the nature of Bryan's claim. Bryan never contended at trial he shot — and in fact disavowed shooting — Leon accidentally. Likewise, in his postconviction petition, Bryan did not contend the expert's testimony "would have supported the defense theory that Bryan accidentally pulled the trigger when he shot Officer Leon." Bryan II, supra, 2010-Ohio-2088, at ¶ 17.
There was therefore no basis to reject the claim on the ground Bryan was, in essence, trying to contradict his testimony at trial.
Nevertheless, while the state court's reasoning was flawed, its bottom-line judgment was not unreasonable. Cf. Lopez v. Thurmer, 573 F.3d 484, 495-96 (7th Cir. 2009) (denying habeas relief where state's court's "methodology" was unreasonable but its "result" did not involve unreasonable application of Supreme Court precedent).
As discussed above, the evidence of Bryan's guilt was overwhelming.
Although a firearms expert could have provided some evidence consistent with Bryan's claim that he acted reflexively (and the gun went off due to light trigger pull), that evidence was not so powerful as to create a reasonable probability of a different result.
Most importantly, it does not tend to negate any of the most powerful evidence supporting the jury's finding Bryan acted intentionally: Bryan's knowledge of the pending warrants, his unwillingness to submit to the authorities unless it was on his own terms, and his awareness that Officer Leon would have, had he made the call on his police radio, in all probability discover Bryan was a wanted parole violator.
The state court's decision that Bryan could not prevail on this component of his Strickland claim was therefore reasonable.
The record refutes Bryan's claim that counsel "failed" to prevent the prosecution from introducing evidence of his prior conviction and parole violations.
Bryan's attorneys litigated this issue vigorously before trial. They filed several motions seeking to exclude evidence of Bryan's criminal history: one styled "Motion to Exclude References to Accused's
The trial court, however, declined to rule on those motions before trial. Instead, the court urged the parties to "work on a solution." (Doc. 52 at 99-100).
Thereafter, defense counsel and the prosecution stipulated Bryan had been "convicted of attempted robbery ... and was sentenced to a term of incarceration of two to ten years in prison," and that Bryan "was indicted ... for theft and receiving stolen property, and that a warrant for his arrest was issued December 1st, 1999." (Doc. 57 at 2805).
More to the point, this evidence was relevant to Bryan's motive for killing Officer Leon, and also to prove his eligibility for the death penalty on the ground he killed Leon to escape detection for another offense.
So stipulating was an appropriate course of action, as the trial court was unwilling to exclude the evidence, the evidence was plainly admissible, and the defense opted to limit the scope of the evidence that came in — and thus the damage it might cause Bryan.
Detective Michael O'Malley testified that, although there was a video camera in Leon's patrol car, "the camera was inoperative and, in fact ... there was nothing on the videotape concerning anything." O'Malley further explained that, had the camera been functioning, it may have captured the shooting. But O'Malley viewed the tape and determined there was "really nothing on this tape." (Doc. 57 at 368-71).
Bryan contends trial counsel were ineffective for failing to obtain a copy of the videotape while preparing the defense case.
This claim is meritless for at least two reasons.
First, Bryan has no evidence that counsel, in fact, failed to seek out or examine the videotape during discovery. On the contrary, the record shows defense counsel actively pursued pretrial discovery. (Doc. 29 at 37-38) (initial discovery motion seeking, inter alia, "[a]ny ... recording ... or copies thereof, available to or within the possession, custody, or control of the State"). In particular, they sought to examine all materials the authorities generated while investigating Officer Leon's death. (Id. at 67-68, 81-82)
I therefore conclude Bryan has not rebutted the strong presumption that counsel performed competently in seeking and handling discovery matters.
Second, there is no evidence that the videotape is anything other than what Detective O'Malley claimed it was: blank. Thus, even assuming that counsel erred in failing to recover the tape, there is no basis to conclude playing the tape would have created a reasonable probability of a different result.
Finally, even if there were a recording of the encounter leading to Officer Leon's death, there is no reason whatsoever to believe that it would depict the stop and shooting in any way other than how Bryan described it. Accordingly, Bryan cannot show any error on counsel's part was prejudicial.
Bryan also alleges that counsel performed ineffectively at the penalty phase.
He argues that his attorneys failed to: 1) present "any substantive mitigating evidence"; 2) prepare Bryan's mother to testify effectively; 3) obtain and present Bryan's prison records; 4) secure the services of a neuropsychologist; 5) retain a
After the jury handed down its verdicts at the guilt phase on November 7, the court had a brief exchange with the parties about the penalty phase. The court ordered, inter alia, the defense to produce to the prosecution any expert reports prepared by their mitigation witnesses. The exchange suggests the defense was considering calling at least one expert at the penalty phase.
But when the penalty phase began two days later, defense counsel represented they intended to present no expert testimony, and only a short mitigation case:
(Doc. 58 at 226-31).
Thereafter, the prosecution introduced all evidence that the parties had introduced at the guilt phase. (Id. at 253-54).
The defense called Bryan's mother Cassandra. She testified that "she `would feel very devastated if Bryan were executed,'" and that "`executing him * * * is just going to widen the circle of grief and violence * * * and the suffering that everyone is going through.'" Bryan, supra, 101 Ohio St.3d at 301, 804 N.E.2d 433. Bryan also took the stand to read an unsworn statement in which he expressed remorse, and took responsibility, for Leon's death.
The Ohio courts adjudicated this claim twice. First, on direct appeal, the Ohio Supreme Court rejected the claim based on counsel's failure to present "`viable' mitigating evidence":
Bryan, supra, 101 Ohio St.3d at 300-01, 804 N.E.2d 433.
Bryan renewed his ineffective-assistance claim on postconviction review, this time armed with the mitigating evidence his trial attorneys had generated but declined to present at the penalty phase. After the postconviction trial court reviewed this evidence, it held Bryan could not prove counsel performed deficiently, or that there was a reasonable probability of a different result. (Doc. 35 at 132-44; Doc. 36 at 54-57). The Ohio Court of Appeals affirmed:
Bryan II, supra, 2010-Ohio-2088, at ¶¶ 23-42.
"Defense attorneys in capital cases have a responsibility to investigate their client's background and to consider mitigating evidence." Scott v. Houk, 760 F.3d 497, 508 (6th Cir.2014). "The scope of the investigation required will vary from case to case[.]" Id.
"In assessing whether a defendant's counsel was ineffective at a mitigation hearing for failing to introduce certain evidence, the focus must be on whether the investigation supporting counsel's decision not to introduce mitigating evidence of the defendant's background was itself reasonable." Loza v. Mitchell, 766 F.3d 466, 488 (6th Cir.2014).
To measure the reasonableness of counsel's investigation, "a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further." Wiggins v. Smith, 539 U.S. 510, 527, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
"When a defendant challenges a death sentence, the question is whether there is a reasonable probability that, absent the errors, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland v. Washington, 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Bryan faults counsel for introducing no "substantive mitigating evidence." (Doc. 18 at 108). To resolve this claim, I must consider the reasonableness of counsels' investigation supporting the decision to present only a limited mitigation case. Loza, supra, 766 F.3d at 488.
There is no question counsel conducted a constitutionally adequate investigation.
The record establishes counsel had the assistance of a mitigation specialist, a psychologist, and an investigator. Together the defense team generated "close to half a dozen three-ring binders full [of] mitigating materials." (Doc. 58 at 229).
Bryan concedes, moreover, the investigation uncovered evidence regarding his: 1) troubled childhood; 2) his involvement in car accidents that left him, for a period of time, unconscious and led to a neurological evaluation; 3) interest in the Muslim faith; 4) record of adjusting well to prison; 5) successful work experience in a Community Re-entry Program; and 6) dependence on, or at least heavy use of, drugs and alcohol. (Doc. 18 at 110-11).
Bryan's claim is therefore a direct attack on the strategic decision counsel made after generating this evidence and estimating its likely impact on the jury. He contends that, "[w]ithout giving the jury some means by which to understand [Bryan's] life and how it evolved into the shooting of a police officer, the jury was left with nothing else but to define him by that one act." (Id.). Consequently, Bryan argues, counsel had no choice but to present the mitigating evidence detailed above.
Because the state courts adjudicated this claim on the merits, Bryan is not entitled relief if there is "any reasonable argument that counsel satisfied Strickland's deferential standard." Pinholster, supra, 131 S.Ct. at 1426.
A review of the record establishes that defense counsels' strategy throughout the trial was to show Bryan had taken responsibility for killing Officer Leon. This is clear, first, from the defense's reliance on an involuntary-manslaughter theory, which permitted Bryan to admit firing the fatal shot while also contending he lacked the mental state needed for a conviction on the aggravated-murder counts.
Likewise, at the penalty phase, Bryan took the stand to read a statement expressing his remorse for the officer's death, acknowledging his responsibility for Leon's death, and lamenting the consequences of actions, both for Officer Leon's survivors and his own family.
Thereafter, defense counsel devoted his summation to highlighting other evidence that would have supported a sentence other than death: 1) Bryan's continual expression of sorrow and remorse for Officer Leon's death, beginning shortly after his arrest and continuing through his trial testimony (Doc. 58 at 293, 295); 2) the absence of any prior calculation and design on Bryan's part (id. at 293); 3) the value of Bryan's life (id. at 296); 4) Bryan's involvement in the lives of his stepchildren (id.); 5) the fact that, if the jury spared his life, Bryan would spend the rest of his life in prison (id.); and 6) Bryan's interest in mentoring his fellow prisoners (id.).
Counsel also reminded the jury that a single juror's vote could prevent the court from imposing a death sentence. (Id. at 287, 290).
In these circumstances, emphasizing Bryan had accepted responsibility and expressed remorse for the death of Officer Leon was an objectively reasonable strategy. E.g., Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) ("The relevant question is not whether counsel's choices were strategic, but whether they were reasonable."). The
Having elected to pursue that strategy, a reasonable attorney could conclude the mitigating evidence Bryan's lawyers did not present — in particular the evidence relating to Bryan's childhood and upbringing, alleged drug and alcohol dependency, and potential brain damage — undermined, or at the very least was in obvious tension with, Bryan's attempt to take responsibility for the crime.
That is, defense counsel could plausibly imagine the jury being skeptical of Bryan attempting to claim, on the one hand, he had accepted responsibility for Leon's death and, on the other, he murdered Leon essentially because of the unfortunate circumstances of his childhood, his drug and alcohol habit (a habit that, at trial, Bryan denied having), and brain damage (which no evidence in the record suggests Bryan actually has).
For that reason, counsel could reasonably conclude — as he explained to the trial court before the penalty phase began — the mitigation evidence he generated "would not be beneficial" to Bryan. (Doc. 58 at 231). While not necessarily harmful in the abstract, the proposed mitigation evidence risked undermining the plausibility of Bryan's claim to have accepted the consequences of his actions.
Equally important, moreover, to defense counsel's calculus was the fact that the mitigating evidence at issue, though it suggested Bryan lived a life few would desire for themselves, was not so grave, harrowing, or substantial that any reasonable attorney would have be duty-bound to present it. E.g., Wiggins, supra, 539 U.S. at 525, 535, 123 S.Ct. 2527 (evidence of petitioner's "excruciating life history" included "suffer[ing] physical torment, sexual molestation, and repeated rape" during childhood); Moore, supra, 708 F.3d at 789 ("The mitigation evidence in favor of Moore was not strong ... there were no accounts of parental abuse or neglect, no history of witnessing violence, no indication of low intelligence"); Strouth v. Colson, 680 F.3d 596, 604 (6th Cir.2012) ("Strouth's upbringing, forlorn though it was in several respects, does not reflect the kind of extreme abuse and deprivation found in other cases").
In light of all this, the question is whether Bryan has proved any fairminded judge reviewing his Strickland claim would conclude the only reasonable way to defend Bryan without violating the Constitution was to introduce the mitigation evidence Bryan's lawyers forwent. Cf. Dixon, supra, 132 S.Ct. at 27; Pinholster, supra, 131 S.Ct. at 1426.
As the Supreme Court has said time and again, there are "countless ways to provide effective assistance in any given case." Harrington, supra, 131 S.Ct. at 788; see also Strickland, supra, 466 U.S. at 689, 104 S.Ct. 2052.
This case proves that observation, as a reasonable defense lawyer could have decided — contrary to the path Bryan's attorney chose — to de-emphasize the responsibility defense and rely on the mitigating evidence that was not presented. Yet that path was not without its bumps, either: the mitigating evidence was hardly compelling — especially when balanced against the weighty evidence in aggravation — and its introduction was sure to prompt rhetorical questions from the prosecution about the countless individuals who, despite the hardships of their upbringing, did not become, like Bryan, a cop killer.
But a competent defense lawyer could, for the reasons already discussed, also
Bryan next contends his attorneys were ineffective for failing to prepare his mother, Cassandra Bryan, to testify effectively at the penalty phase. He argues counsel met with Cassandra only once before she testified, and likely for that reason Cassandra was ill-prepared to handle the prosecutor's cross-examination.
Bryan also alleges the defense should have objected to Cassandra's testimony on cross-examination as misleading because it wrongly suggested Bryan had a positive childhood.
This claim lacks merit.
As the Ohio Supreme Court explained on direct appeal, "the defense made a legitimate tactical decision to call Cassandra," whose testimony "helped to humanize Bryan before the jury." Bryan, supra, 101 Ohio St.3d at 301, 804 N.E.2d 433. This was a plausible course of action, as it complemented the responsibility defense, and Cassandra's testimony brought home the gravity of the jury's decision to impose a death sentence.
Contrary to Bryan's argument, Cassandra's testimony on cross-examination was not prejudicial, as Strickland defines that term. Indeed, it too comported with the defense strategy. As the Ohio Supreme Court observed, "testimony that Bryan was brought up in a good home with strong values can be viewed in a favorable light" because it could "show that Bryan's crimes were an aberration and that he has rehabilitation potential." Id.
For these reasons, Bryan has not shown the state court's rejection of this part of his ineffective-assistance claim was unreasonable.
Bryan also contends counsel should have introduced evidence of his ability to adjust well to life in prison.
The Ohio Court of Appeals rejected that claim because Bryan could not show prejudice. It found not only that the aggravating evidence was overwhelming, but also that the record contained evidence "that Bryan did not adjust well to prison life as he would continually break confinement and committed criminal acts while in prison." Bryan II, 2010-Ohio-2088, at ¶ 39.
Even accepting Bryan's claim some evidence showed he could adjust well to life in prison, there was also evidence suggesting he could not. Trial counsel was thus not deficient for declining to introduce this evidence, and, given the overwhelming evidence adduced against Bryan at the penalty phase, the state court reasonably concluded Bryan could not show prejudice.
Bryan further contends that, because defense counsel were aware of his involvement in two car accidents when he was a child, they should have retained a neuropsychologist to help establish whether Bryan had any "neurological damage." (Doc. 18 at 117).
Like testimony about Bryan's drug alcohol abuse and difficult childhood, the proposed evidence would have been inconsistent with Bryan's mitigation phase theme of acceptance of responsibility and remorse. But, even assuming defense counsel was deficient for not retaining a neuropsychologist, and assuming further (without any evidence in the present record), that such an expert would have produced
Finally, Bryan faults counsel for not retaining two additional experts: 1) a cultural mitigation expert, who could have explained to the jury Bryan's struggles growing up an African-American; and 2) a substance abuse expert who would have opined on the difficulties Bryan's dependency on drugs and alcohol caused.
I reject this claim on the same basis I rejected Bryan's claim regarding the failure to introduce "any substantive mitigation evidence": the evidence arguably detracts from the defense effort to have Bryan accept responsibility for his actions and express remorse for Officer Leon's death, and thus a reasonable defense lawyer could properly decline to seek it out or introduce it.
Like the other mitigation evidence counsel chose not to present, this evidence could have suggested to the jury that, contrary to Bryan's unsworn statement and the arguments of defense counsel, Bryan had not accepted responsibility for his conduct, but rather blamed his actions on a substance-abuse problem — which, notably, Bryan denied he had — and on his upbringing.
Furthermore, Bryan has not shown this evidence would have created a reasonable probability the result of the penalty phase would have been different.
For these reasons, I reject Bryan's claim that trial counsel performed ineffectively at the penalty phase.
In his tenth claim for relief, Bryan argues that his appellate lawyer was ineffective for not arguing the prosecution failed to prove beyond a reasonable doubt one of the capital specifications alleged in the indictment.
The specification at issue is O.R.C. § 2929.04(A)(3), which, as charged in Bryan's case, alleged Bryan had killed Officer Leon "for the purpose of escaping detection, apprehension, trial, and/or punishment for another offense committed by him, to-wit: Attempted Robbery and/or Receiving Stolen Property and/or Theft."
Bryan contends that, at most, the prosecution proved he committed the murder to escape detection for a parole violation. But because a parole violation is not an "offense" under Ohio law, Bryan argues, the evidence was insufficient to prove the (A)(3) specification. He further asserts the jury's consideration of that invalid aggravating factor skewed the jury's weighing of the aggravating and mitigating evidence. E.g., Brown v. Sanders, 546 U.S. 212, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006).
Finally, Bryan contends that the (A)(3) specification was unconstitutionally vague as charged in his case.
The Warden contends Bryan defaulted this claim by omitting it from his application to reopen his direct appeal.
A review of that pleading, however, refutes the Warden's argument: Bryan raised precisely these arguments in seeking to reopen his direct appeal on account of appellate counsel's ineffectiveness. (Doc. 31 at 452-53, 462-71).
I further note that, although the Ohio Supreme Court denied Bryan's application to reopen because it was untimely, the Warden failed to assert the claims contained
Bryan argues I can excuse the default under Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), which holds that the "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's default of a claim of ineffective assistance at trial." Id. at 1315.
That argument lacks merit, as Martinez — which does not apply in Ohio in any event, Williams v. Mitchell, 792 F.3d 606, 615-16 (6th Cir.2015) — permits a court to excuse a default only of claim that trial counsel was ineffective. Atkins v. Holloway, 792 F.3d 654, 657-59 (6th Cir.2015); Hodges v. Colson, 727 F.3d 517, 531 (6th Cir.2013).
Bryan also asserts that Ohio's application-to-reopen procedure does not afford the attorney preparing the application sufficient to time to review the record of a capital trial and draft a proper application. For that reason, Bryan continues, the Ohio Supreme Court's denial of his application to reopen is not an "adequate" bar to federal habeas review. See generally Lee v. Kemna, 534 U.S. 362, 375-78, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002).
This argument is unavailing, as the Sixth Circuit has held repeatedly that an Ohio court's denial of an application to reopen on timeliness grounds is an independent and adequate ground of decision that blocks federal habeas review. Parker v. Bagley, 543 F.3d 859, 862 (6th Cir.2008); see also Baker v. Bradshaw, 495 Fed. Appx. 560, 565 (6th Cir.2012).
For these reasons, I conclude Bryan's appellate-counsel claim is procedurally defaulted.
In any event, Bryan has not shown his appellate lawyer was ineffective for raising this sufficiency-of-the-evidence challenge.
As Bryan notes, to prove the (A)(3) specification, the prosecution had to establish Bryan killed Officer Leon to avoid apprehension, detection, or punishment for an "offense." That Bryan committed the murder to escape detection for an "offense" was thus an element of the capital-murder charge. State v. Jones, 91 Ohio St.3d 335, 347, 744 N.E.2d 1163 (2001); cf. Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).
There is no dispute Bryan committed the "offense" of attempted robbery: Bryan so stipulated at trial. Nor is there any dispute that, after Bryan was paroled on the attempted-robbery conviction, he violated his parole term. Nor, finally, is there any dispute a reasonable jury could infer from Bryan's testimony that he killed Officer Leon to avoid being detected as a parole violator.
The question is whether a rational jury could conclude from this evidence that Bryan had killed Officer Leon to avoid detection, punishment, or apprehension for the attempted-robbery offense to which the parole term attached.
Under Ohio law, when a parolee violates the terms of his parole, authorities may arrest the parolee and return him to prison to serve the remainder of the sentence for the underlying offense. According to the Ohio Supreme Court:
State v. Clark, 119 Ohio St.3d 239, 246, 893 N.E.2d 462 (2008); see also In re Long, 24 Ohio App.3d 32, 36, 492 N.E.2d 878 (1985) ("a parolee, upon revocation of parole, is returned to serve the remainder of his original sentence, not a new sentence").
Of course, Bryan is correct that the prosecution argued Bryan's immediate motive in the killing was to escape detection, apprehension, or punishment for a parole violation, rather than for the underlying attempted-robbery conviction.
But this was merely a rhetorical tactic, not a failure in the proof.
The evidence was sufficient to permit a jury to find Bryan murdered Officer Leon to avoid apprehension, detection, or punishment for his parole violation.
In making that finding, the jury necessarily found that Bryan's sought to elude capture or punishment for the "offense" underlying the parole term — and to which it attached as a matter of Ohio law: attempted robbery. Bryan's own statements to his girlfriend sufficed to persuade the jury that he killed Officer Leon to avoid detection, arrest, parole revocation, and the ensuing punishment of being returned to prison on the attempted-robbery conviction.
Finally, there is no merit to Bryan's claim the (A)(3) specification was unconstitutionally vague.
He contends that, because the prosecution charged the specification in the disjunctive — using a series of "and/or's" in listing the offenses for which Bryan sought to avoid detection — the jury may not have been unanimous "as to the presence of the offense element." (Doc. 18 at 141).
Contrary to Bryan's contention, "it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission." Schad v. Arizona, 501 U.S. 624, 649, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) (Scalia, J., concurring in part and concurring in judgment); see also id. at 631-33, 111 S.Ct. 2491 (plurality opinion).
Here, the (A)(3) specification charged Bryan with capital murder for killing Officer Leon to avoid detection, apprehension, or punishment for an offense. In resolving that charge, the jury had the option of finding which of three offenses, or which combination of them, motivated Bryan's conduct. Under Schad, there was no requirement the jury had to agree on the offense for which Bryan sought to avoid detection, apprehension, or punishment.
For these reasons, Bryan is not entitled to relief on his claim that appellate counsel was ineffective.
For his eleventh ground for relief, Bryan argues the trial court should have
According to Bryan, "[t]he killing of officer Leon is also an element to of [sic] the A(5) specification course of conduct specification [sic]. The judge [thus] charged the jury there existed three separate and distinct aggravating factors, where only two existed." (Doc. 18 at 142).
For that reason, Bryan contends, the jury's process of weighing the aggravating circumstances against the mitigating circumstances "was rendered invalid by the consideration of two improper aggravating factors." (Id.).
The Ohio Supreme Court rejected this claim on direct appeal, holding not only that Bryan forfeited the claim by failing to request a merger, but also that state law did not require merger in the first place:
Bryan, supra, 101 Ohio St.3d at 302, 804 N.E.2d 433.
Although the Ohio Supreme Court held that Bryan forfeited this claim, the Warden failed to assert a procedural default in this proceeding.
Regardless, Bryan's claim is meritless under any standard of review because the Ohio Supreme Court determined — as a matter of Ohio law — that the capital specifications at issue "did not arise from the same act or [an] indivisible course of conduct," and thus that Bryan was not entitled to a merger. Id.
That interpretation of state law is binding on me, Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), and I have no authority to second-guess it. Because Bryan's claim depends on a non-reviewable interpretation of Ohio law, he is not entitled to habeas relief on this ground.
In any event, I fully concur in the Ohio Supreme Court's ruling the two specifications are divisible. The specifications depended on different evidence and focused on the unique harms Bryan's conduct caused: one focused on Bryan's killing of a police officer, while the other focused on the danger Bryan posed when, after he had killed Officer Leon, he tried to murder another person.
Accordingly, the prosecution needed different evidence to prove each specification, and in proving one specification, the prosecution did not necessarily prove the other. There was therefore no bar, under Ohio
Finally, even assuming the Ohio Supreme Court's application of Ohio law were insufficient to resolve this claim, Bryan has identified no Supreme Court authority for the proposition that improper weighing occurs when a jury weighs two aggravating factors that overlap only in part. Cf. Scott, supra, 760 F.3d at 506 ("Scott's argument cannot succeed because he does not cite any precedent from the United States Supreme Court indicating that two or more aggravating factors must be merged when they are based on the same underlying conduct.").
Bryan next alleges the trial court violated his right to be present during a "critical stage" of the proceedings when the court answered, outside his presence, nine questions from the jury during their guilt-phase deliberations.
The Warden contends the claim is procedurally defaulted and meritless.
As the Warden points out, Bryan failed to raise this claim in state court.
Although Bryan argued, in his motion to re-open his direct appeal, that appellate counsel had been ineffective for failing to raise a right-to-be-present claim, that was insufficient to preserve the right-to-be-present claim itself for habeas review. Davie, supra, 547 F.3d at 312.
I also reject, as I did earlier in this opinion, Bryan's claim that I can excuse this default under Martinez, supra, 132 S.Ct. at 1311. Because the defaulted claim is not an ineffective-assistance-of-trial-counsel claim, and because Martinez is inapplicable in Ohio, that case provides no basis to excuse the default.
In the alternative, this claim fails on the merits.
The Constitution guarantees a criminal defendant the right to be present at trial. U.S. v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985).
But the right is not absolute. Rather, "a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to the outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). "[T]his privilege of presence is not guaranteed `when presence would be useless, or the benefit but a shadow.'" Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-106, 54 S.Ct. 330, 78 L.Ed. 674 (1934)).
I consider the record as whole to determine whether Bryan's absence from any critical stage of the trial was constitutionally improper. Snyder, supra, 291 U.S. at 115, 54 S.Ct. 330.
Having done so, I cannot accept Bryan's claim that the trial court violated his right to be present. The record shows the trial court advised counsel for both parties of each question the jury submitted. Thereafter, the court permitted counsel to argue their respective positions and told counsel what answer the court would give the jury.
Furthermore, each question — save for the first — concerned a straightforward legal issue.
In these circumstances, Bryan has not proved the trial court violated his constitutional right to be present. Buell v. Mitchell, 274 F.3d 337, 363-64 (6th Cir.2001) (no violation of petitioner's right to be present where petitioner was absent from conference where court and counsel discussed how to answer jury's question).
Bryan next claims the trial court violated his due-process rights.
He argues the trial court did so by admitting: 1) testimony from Donnell Wingfield that (a) Bryan and his friends were known to rob drug dealers, and (b) three people had threatened Wingfield, via telephone, before he testified; and 2) testimony from Bryan's girlfriend Janie Winston that Bryan served time in prison, carried weapons, and sold drugs.
Bryan also argues the trial court erred by informing the jury that "ultimately the imposition of the death penalty rests upon my shoulders." According to Bryan, that statement misled the jury into thinking the court, rather than the jurors themselves, had the final say whether Bryan would receive a death sentence.
The Ohio Supreme Court held on direct appeal that, while the trial court erred in admitting some of this evidence (while also properly admitting most of it), the error was harmless:
Bryan, supra, 101 Ohio St.3d at 291-92, 804 N.E.2d 433.
Bryan contends the Ohio Supreme Court failed to adjudicate his federal constitutional challenge to the admission of this evidence. According to Bryan, I should therefore review this claim de novo, rather under § 2254(d).
This contention is unpersuasive.
"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, supra, 131 S.Ct. at 784-85. And "[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits[.]" Johnson v. Williams, ___ U.S. ___, 133 S.Ct. 1088, 1096, 185 L.Ed.2d 105 (2013).
The petitioner may rebut the presumption where "there is reason to think some other explanation for the state court's decision is more likely." Harrington, supra, 131 S.Ct. at 785.
Bryan argues the "more likely" explanation for the state court's failure to refer to his federal claim is that the court "misinterpreted [his] appeal as raising only a state claim or mistakenly believed the analysis of the [state] evidentiary [claim] in and of itself adjudicated his federal claim." (Doc. 63 at 178).
But this contention is purely speculative: Bryan provides no evidence or argument, aside from the lack of an express reference to this claim in the state court's opinion, demonstrating that the state court overlooked his due process claim.
More to the point, review of Bryan's brief provides a more plausible explanation for the state court's decision: Bryan made but one reference to the federal constitution in presenting this claim to the Ohio Supreme Court.
Bryan devoted nearly seven pages of his opening brief to discussing why the admission of the complained-of evidence violated Ohio law. The last line in this section of the brief stated, without elaboration, that "the use of such prejudicial material is violative of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution." (Doc. 31 at 113). This presentation of the federal claim, which was hardly substantial or developed, suggests Bryan himself believed the state and federal claims were interchangeable. He did not signal how, if at all, the federal component of his claim differed from the claim's state-law component.
It is more likely the court did not provide a separate analysis of Bryan's federal claim — as opposed to carelessly overlooking that claim — because of Bryan's insubstantial presentation of that claim suggested none was needed, or because the court believed its disposition of the state-law claim necessarily disposed of any corresponding federal claim. Johnson, supra, 133 S.Ct. at 1095-96.
First, the Supreme Court has never held that a state law or rule of evidence permitting the introduction of "bad acts" or "other acts" evidence to establish the defendant's character or propensity to commit such acts violates the Due Process Clause. Estelle, supra, 502 U.S. at 65, 112 S.Ct. 475; Bugh v. Mitchell, 329 F.3d 496, 512-13 (6th Cir.2003); Gaffney v. Sherry, 2010 WL 432279, *9 (W.D.Mich.)
Because there is no Supreme Court authority on point, the Ohio Supreme Court's decision could not have been contrary to, or an unreasonable application of, such precedent. Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006).
Second, the Ohio Supreme Court reasonably held that any error in admitting Wingfield's testimony about Bryan's bad character was harmless.
As I have detailed above, the prosecution introduced compelling, and overwhelming, evidence that Bryan intentionally murdered Officer Leon.
Moreover, as the Ohio Supreme Court pointed out, Wingfield's testimony that Bryan robbed mostly drug dealers was cumulative of Bryan's admission, which the prosecution introduced via Janie Winston, that he "hit licks" — slang for robbing drug dealers. The jury knew, because of the parties' stipulation, that Bryan had been convicted of, and served time in prison for, attempted robbery.
Third, the state court reasonably determined Winston's testimony about Bryan's prison record and ongoing criminal behavior, in conjunction with the evidence of the outstanding arrest warrants, was admissible to prove motive. The evidence provides some, though perhaps only slight and tangential, support for the prosecution's theory Bryan murdered Leon to escape detection and apprehension for his past crimes.
For these reasons, the state court's decision was not contrary to, or an unreasonable application of, Supreme Court precedent.
Bryan did not present in state court, and thus procedurally defaulted, his claim that the court misled the jury into believing that the court had ultimate responsibility for imposing a death sentence.
Furthermore, the claim has no merit.
"[I]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been lead to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Caldwell v. Mississippi, 472 U.S. 320, 328-29, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985).
"To establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law." Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989).
Ohio law provides that, if the sentencing jury finds "that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed[.]" O.R.C. § 2929.03(D)(2). The court may adopt that recommendation and impose the death sentence only if it "finds, by proof beyond a reasonable doubt ... that the aggravating circumstances ... outweigh the mitigating factors[.]" O.R.C. § 2929.03(D)(3).
Given this legal framework, the Sixth Circuit has held that no Caldwell
These cases control here. Because the trial court's statement to the jury that it had ultimate authority to impose a death sentence was accurate, no Caldwell violation occurred.
In his first claim attacking his death sentence, Bryan contends the Ohio Supreme Court violated Ohio law by failing to conduct a proportionality review of his sentence that an Ohio statute, O.R.C. § 2929.05, requires. Because state law guaranteed him the right to such review, Bryan maintains the state court's failure to conduct that review deprived him of a constitutionally protected liberty interest.
This claim rests on a misunderstanding of Ohio law.
Section 2929.05(A) provides that the Ohio Supreme Court must review any death sentence to determine whether it is "excessive or disproportionate to the penalty imposed in similar cases."
According to Bryan, the phrase "similar cases" means not only murder cases in which the defendant received a death sentence, but also murder cases in which the prosecutor: 1) sought, but did not obtain, the death penalty; and 2) could have sought the death penalty but declined, for whatever reason, to do so.
But the Ohio Supreme Court has long rejected this reading of § 2929.05(A).
In State v. Steffen, 31 Ohio St.3d 111, 123-24, 509 N.E.2d 383 (1987), the court concluded the statute requires a review of only "those cases already decided by the reviewing court in which the death penalty has been imposed." Consequently, proportionality review under § 2929.05(A) does not include "any case where the death penalty was sought but not obtained or where the death sentence could have been sought but was not." Id. at 124, 509 N.E.2d 383.
Because Bryan's claim rests on an interpretation of Ohio law that the Ohio Supreme Court has rejected, his claim is meritless.
Moreover, the Sixth Circuit "has held repeatedly that Ohio's system of proportionality review complies with the dictates of the Due Process Clause." Williams v. Bagley, 380 F.3d 932, 962 (6th Cir.2004).
Because "proportionality review is not required by the Constitution, states have great latitude in defining the pool of cases used for comparison." Id. In "limiting proportionality review to other cases already decided by the reviewing court in which the death penalty has been imposed, Ohio has properly acted within the wide latitude it is allowed." Id.; see also Buell, supra, 274 F.3d at 368-69.
For this reason, too, I reject Bryan's fourteenth claim.
For his fifteenth claim, Bryan contends "Ohio's lethal injection protocol, practice and procedure" violate the Eighth Amendment.
Although Bryan is not explicit on this point, his claim appears to be that, regardless of the protocols and procedures Ohio might adopt to implement lethal injection, those procedures will be insufficient to ensure Bryan's execution comports with the Eighth Amendment. (Doc. 63 at 229) ("This Court should grant habeas relief by vacating the death sentence if it can be demonstrated through a fully developed
In resolving this claim, I am mindful Bryan is one of the plaintiffs in In re Ohio Execution Protocol Litigation, Case No. 2:11CV1016 (S.D.Ohio), a case pending before Judge Frost in which the plaintiffs — more than 100 condemned Ohio inmates — claim Ohio's execution protocol will, as applied in their individual cases, violate their rights under the Equal Protection Clause.
Respondent raises two procedural objections to this claim, neither of which has merit. First, the Warden contends Bryan failed to raise this claim in state court.
On direct appeal, Bryan raised essentially the same Eighth Amendment objection he now raises, but he directed it at Ohio's then-prevailing method of execution: electrocution. It was not until 2001, after the trial court sentenced Bryan to death and while his direct appeal was pending, that lethal injection became Ohio's sole method of execution. Cooey v. Strickland, 479 F.3d 412, 416 (6th Cir.2007).
I assume for present purposes this was insufficient to exhaust Bryan's current claim.
Nevertheless, dispensing with the exhaustion requirement is appropriate here, see 28 U.S.C. § 2254(b)(1)(B)(I), because the Ohio courts provide no means for a condemned prisoner to raise an Eighth Amendment challenge to the execution protocol. Scott v. Houk, 127 Ohio St.3d 317, 318-19, 939 N.E.2d 835 (2010).
Second, the Warden contends Bryan's claim would be cognizable only in a suit under 42 U.S.C. § 1983.
As my colleague Sr. District Judge David A. Katz has recently and correctly pointed out, this argument "oversimplifies and misstates the law." Jones v. Bradshaw, 2015 WL 1383830, *13 (N.D.Ohio).
In Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir.2011), the Sixth Circuit recognized that the Supreme Court has never held "that a method-of-execution challenge is not cognizable in habeas or that a federal court `lacks jurisdiction' to adjudicate such a claim in a habeas action."
On the contrary, the Sixth Circuit also explained in Scott, supra, 760 F.3d at 512, that a habeas petitioner can prevail on a lethal injection claim if he can "gather facts showing that Ohio is unable to administer lethal injection in a constitutionally permissible manner."
Recent decisions from my Ohio district court colleagues have held, contrary to the Warden's position, that method-of-execution claims are cognizable on habeas review. E.g., Jones, supra, 2015 WL 1383830, at *13-14; Sheppard v. Warden, Chillicothe Corr. Inst., 2013 WL 146364, *8 (S.D.Ohio) (Frost, J.); Smith v. Pineda, 2012 WL 6021471, *1 (S.D.Ohio) (Merz, J.).
For example, in Phillips v. Robinson, 2013 WL 3990756 (N.D.Ohio), Judge Lioi concluded that a claim similar to the one Bryan presses here was cognizable.
The petitioner in that case alleged that Ohio's current execution protocol "create[d] a substantial risk of harm and/or an objectively intolerable risk of harm[.]" Id., at *1. He also maintained "that Ohio is not able, regardless of the policy, protocols, and procedures in effect at any given time to administer the lethal injection in a way that satisfies the Eighth and Fourteenth Amendments." Id., at *2.
After reviewing the Supreme Court's decisions in Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), and Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) — both of which permitted method-of-execution
Because the petitioner in Phillips contended Ohio could not constitutionally execute him, regardless of any changes it might make in its execution protocol, Judge Lioi held the claim was cognizable.
I follow that approach here in concluding Bryan's claim is also cognizable.
Like the petitioner in Phillips, Bryan challenges Ohio's lethal injection protocol in its entirety, and does not concede the existence of a safe alternative.
At its core, Bryan's claim includes not only "specific complaints [about the execution protocol] that could be remedied without necessarily precluding lethal injection altogether," but also broader challenges suggesting that "the State's administration of that protocol, as a whole, poses an `objectively intolerable risk of harm' such that it could be `seen as barring the execution of [Bryan's] sentence.'" Id., at *6 (quoting Hill, supra, 547 U.S. at 581, 126 S.Ct. 2096) (emphasis in original).
For these reasons, Bryan's claim is cognizable.
Although Bryan's claim is cognizable and ripe for review, it lacks merit under Glossip v. Gross, ___ U.S. ___, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015), Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), and, more particularly, Cooey v. Strickland, 589 F.3d 210 (6th Cir.2009) (Cooey II).
In Baze, supra, 553 U.S. at 50, 128 S.Ct. 1520, the Supreme Court held that, to prevail on a claim that an execution protocol poses an unconstitutional risk of harm, the prisoner must show that "the conditions presenting the risk must be sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers." (emphasis in original).
Accordingly, "a condemned prisoner cannot successfully challenge a State's method of execution merely by showing a slightly or marginally safer alternative." Id. at 51, 128 S.Ct. 1520. Rather, the prisoner's proposed alternative "must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain." Id. at 52, 128 S.Ct. 1520.
The Court reiterated and reaffirmed these principles in Glossip, supra, 135 S.Ct. at 2736-38.
The Sixth Circuit applied the Baze standard in Cooey II, supra, 589 F.3d at 223-32, to hold that Ohio's single-drug execution protocol and the back-up contingency protocol comply with the Eighth Amendment.
Cooey II rejected many of the same arguments Bryan presses here.
First, the court held that "[t]he majority of claims regarding the one-drug" protocol "are foreclosed by Baze and its progeny." Id. at 223; see also id. at 225 ("Permitting constitutional challenges to lethal injection protocols based on speculative injuries and the possibility of negligent administration is not only unsupported by Supreme Court precedent but is also beyond the scope of our judicial authority.").
Second, the court rejected the prisoner's claim that "Ohio's protocol is constitutionally
Third, the court held that the Ohio protocol contained constitutionally adequate provisions for supervising staff and the inmate during an execution.
Like the Kentucky protocol upheld in Baze, Ohio's protocol "calls for the medical team to administer the drug remotely by IV while the Warden and Director of [the Ohio Department of Rehabilitation and Corrections] remain in the execution room to visually inspect the prisoner to determine if he is unconscious, needs further injections, or exhibits any problems with the IV catheters and tubing[.]" Id. at 227.
Finally, the court rejected all challenges to Ohio's contingency protocol. Id. at 229-32.
In light of these precedents, which Bryan neither acknowledges nor attempts to distinguish, his challenge to Ohio's execution protocol lacks merit. Bryan argues, for example, that there is a risk state officials will not follow the protocol or the written guidelines implementing them. He also contends there is no empirical data showing a single dose of five grams of pentobarbital — or, for that matter, the whole of Ohio's contingency protocol — can effect an execution free of substantial risk of severe pain or injury.
But as my discussion of Cooey II shows, the Sixth Circuit has already held these arguments are insufficient to prove an Eighth Amendment violation.
While Bryan cannot obtain habeas relief on this claim, Sixth Circuit precedent suggests he may pursue a similar claim in the Ohio Execution Protocol Litigation case. Frazier, supra, 770 F.3d at 505 (concluding that, because petitioner was party to In re Ohio Execution Litigation Protocol, "that litigation is the proper avenue ... to bring this constitutional challenge" alleging Ohio is unable to administer its lethal injection protocol in constitutionally permissible manner); Scott, supra, 760 F.3d at 512 (same).
Finally, in his sixteenth claim, Bryan argues the death penalty is unconstitutional.
He alleges that Ohio authorities "impose[ ] the death penalty in a racially discriminatory manner" because "[b]lacks and those who kill white victims are much more likely to get the death penalty." (Doc. 18 at 174). Bryan observes that, even though African-Americans constitute less than twenty percent of Ohio's population, "about half of Ohio's death row inmates are African-American." (Id.).
He also contends the death penalty violates international law.
Contrary to the Warden's argument, Bryan raised these claims on direct appeal and thus preserved them for habeas review. But Bryan is not entitled to relief because the Ohio Supreme Court's decision rejecting these claims, Bryan, supra, 101 Ohio St.3d at 305, 804 N.E.2d 433, was reasonable.
First, the Sixth Circuit has consistently rejected claims that Ohio's death penalty regime operates in a racially discriminatory fashion. Coleman v. Mitchell, 268 F.3d 417, 441 (6th Cir.2001) (rejecting claim that Ohio's death penalty was unconstitutional because of "striking racial discrepancy between African American representation in the Ohio population generally (9%), and such representation on Ohio's death row (49%)"); see also Keene v. Mitchell, 525 F.3d 461, 463-65 (6th Cir. 2008); Smith v. Mitchell, 348 F.3d 177, 211-12 (6th Cir.2003).
It is, therefore,
ORDERED THAT: Bryan's petition for a writ of habeas corpus (Doc. 1) be, and the same hereby is granted. The State of Ohio must release Bryan from custody on the conviction at issue in this case unless, within 120 days of the entry of this order, it begins proceedings to afford Bryan a new trial.
So ordered.
In so concluding, the Sixth Circuit relied on five of its prior decisions. But in Fleming, supra, 556 F.3d at 530-32, the court explained why some of those cited decisions did not address whether a state court's review of a claim only for plain error qualified as a merits adjudication. Moreover, two of the cases cited in Frazier held only that a state court's decision on the merits of a claim did not erase the state court's earlier ruling a claim was procedurally barred under state law. Girts v. Yanai, 501 F.3d 743, 755 (6th Cir.2007); Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir.2006).
What happened in Bryan's case appears most analogous to what happened in Fleming: although the Ohio Supreme Court invoked a procedural bar in denying relief on the ex parte communications claim, it also addressed, and directly so, whether Bryan suffered prejudice from those communications.