SARA LIOI, District Judge.
Petitioner, John Drummond ("Drummond" or "Petitioner"), has filed an Amended Petition for Writ of Habeas Corpus ("Amended Petition") pursuant to 28 U.S.C. § 2254. (ECF No. 45.) He challenges his convictions by a Mahoning County jury and the sentence of death recommended by the jury and adopted by the judge. In addition to reviewing Drummond's petition, the Court has reviewed the Return of Writ
For the reasons set forth below, Drummond's Amended Petition for Writ of Habeas Corpus is
On April 3, 2003, Drummond was indicted by a Mahoning County grand jury, charging him with the following eight counts: (1) aggravated murder of Jiyen
A jury trial on the remaining counts began with jury selection on January 12, 2004. (ECF No. 35, Trial Tr., Vol. 2, at 101.) The presentation of evidence began on February 2, 2004. (Id., Vol. 12, at 2392.) The facts as stated by the Ohio Supreme Court are as follows:
State v. Drummond, 111 Ohio St.3d 14, 15-16, 854 N.E.2d 1038 (2006).
At the conclusion of the proceedings, the jury convicted Drummond on all counts and specifications. (ECF No. 34, App. Vol. 2, at 95-112.) The penalty phase of the trial began on February 19, 2004. (ECF No. 35, Trial Tr., Vol. 18, at 3723.) Drummond presented the testimony of five witnesses during the mitigation hearing: his mother, father, the mother of his twin children, a neighbor, and Dr. John Fabian, a clinical psychologist.. Additionally, Drummond made a brief, unsworn statement to the jury. Further facts will be set forth as necessary to resolve the claims raised in the Amended Petition.
Drummond filed a timely notice of appeal to the Ohio Supreme Court on April 8, 2004, challenging his convictions and sentence of death. (ECF No. 34, App. Vol. 3, at 5.) In a brief filed December 21, 2004, Drummond raised the following fourteen propositions of law:
(ECF No. 34, App. Vol. 3, at 44-47.) On November 4, 2005, the Ohio Supreme Court sua sponte asked the parties to file additional briefs addressing two specific issues:
(ECF No. 34, App. Vol. 3, at 219.) Drummond filed his supplemental brief addressing these issues. (ECF No. 34, App. Vol. 3, at 235.) The Ohio Supreme Court affirmed the convictions and sentences, including the sentence of death, on October 18, 2006. State v. Drummond, 111 Ohio St.3d 14, 854 N.E.2d 1038 (2006).
Drummond filed a petition for post-conviction relief on January 28, 2005. He asserted the following 21 grounds for relief:
(ECF No. 34, App. Vol. 5, at 35-99.) On February 14, 2006, the trial court granted the State's motion for summary judgment. Drummond filed a timely notice of appeal with the Seventh District Court of Appeals. He raised the following four assignments of error:
Drummond filed a timely application to reopen his direct appeal ("application to reopen" or "Murnahan appeal") with the Ohio Supreme Court on January 16, 2007. He alleged that his appellate counsel had been ineffective for failing to raise the following four propositions of law, as alleged below:
Drummond filed a notice of intent to file a habeas corpus petition on June 15, 2007. (ECF No. 1.) Although the Court initially appointed counsel to represent Drummond, appointed counsel filed a Motion to Withdraw as Attorney and Request for New Counsel on September 12, 2007. (ECF No. 13.) The Court initially denied the request but later reconsidered its decision, allowing Drummond fourteen (14) days to decide whether he wished to retain his current counsel or request that the Court appoint new counsel. (ECF No. 19.) Drummond indicated that he wished to be represented by new counsel. (ECF No. 23.) The Court granted Drummond's request and, on November 16, 2007, appointed Timothy C. Ivey of the Office of the Federal Public Defender ("FPD") and David L. Doughten to represent him. (ECF No. 28.)
Drummond also requested discovery, which the Court denied in part and granted in part. Specifically, the Court permitted Drummond to obtain a ballistics expert to examine the trajectory of the bullets that caused the murder. The Court also permitted habeas counsel to depose defense psychologist Dr. John Fabian and trial counsel James Gentile and Ron Yarwood. (ECF No. 42.) Additionally, the Court granted Drummond's motion to unseal state court records. (ECF No. 46.) Drummond also made three requests to expand the record pursuant to Habeas Rule 7, to include materials he had obtained during discovery. (ECF Nos. 53, 55, 56.) On October 16, 2008, in three non-document orders, the Court granted each request.
Respondent filed his Return of Writ on July 7, 2008. (ECF No. 49.) After requesting and receiving permission for an extension of time, Drummond filed a Traverse on September 22, 2008. (ECF No. 57.) Respondent thereafter filed a Sur-Reply (ECF No. 58), to which Drummond filed a Sur-Sur-Reply (ECF No. 59).
In the Amended Petition, Drummond raises the following 13 grounds for relief:
(ECF No. 45, passim.)
Upon reviewing the parties' briefs, on January 26, 2010, the Court issued an Order
The depositions of Dr. Fabian and trial counsel Gentile and Yarwood presented competing pictures of the defense team's mitigation investigation and preparation. While both parties conceded that Dr. Fabian did not perform well during his mitigation testimony, Dr. Fabian faulted counsel for his failures. He maintained that counsel did not provide him with adequate time to prepare, did not obtain a gang expert despite his request for one, and failed to provide him with information regarding Drummond's half-brother, Michael Brooks.
Trial counsel disputed most of Dr. Fabian's allegations. First, counsel claimed that Dr. Fabian indicated he could testify about Drummond's involvement with gangs. Counsel also disputed that Dr. Fabian ever asked them for additional time to prepare for his testimony. Counsel also were unaware of any documents or information that Dr. Fabian believed he lacked, including information regarding Michael Brooks. The Court therefore issued the Order to Show Cause for Respondent to explain why an evidentiary hearing was not necessary to resolve these factual disputes.
When neither party articulated a reason why the Court should not hold a hearing, the Court set a hearing date for May 20, 2010. (ECF No. 66.) After habeas counsel requested and received two continuances, the Court re-set the evidentiary hearing for July 19 and 20, 2010. (ECF No. 75.) Thereafter, the parties filed a Joint Motion to Clarify Scope of Evidentiary Hearing. (ECF No. 83.) Habeas counsel argued that Drummond's family members should be permitted to testify to demonstrate the prejudice necessary to establish an ineffective assistance claim. Conversely, Respondent believed that the purpose of holding an evidentiary hearing was to resolve the factual disputes between Dr. Fabian and Petitioner's trial counsel, and the hearing therefore should be limited to their testimony alone. The Court determined that it would allow the testimony of Drummond's family members, if only to obviate the need for it at some later date and to create a full record for appellate purposes. (ECF No. 85.) Thereafter, the Court held the evidentiary hearing. The pertinent testimony and outcome of this evidentiary hearing is discussed below under Section VI(H), which addresses Petitioner's Eighth Ground for Relief.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which amended 28 U.S.C. § 2254, was signed into law on April 24, 1996. In Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court held that the provisions of AEDPA apply to habeas corpus petitions filed after that effective date. See also Woodford v. Garceau, 538 U.S. 202, 210, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir.1999) ("It is now well settled that AEDPA applies to all habeas petitions filed on or after its April 24, 1996 effective date."). Because Drummond's petition was filed on October 12, 2007, AEDPA governs this Court's consideration of his petition.
AEDPA was enacted "to reduce delays in the execution of state and federal
28 U.S.C. § 2254(d). This legal standard establishes a multi-faceted analysis involving a consideration of both the state court's statement and/or application of federal law and its finding of facts.
With respect to Section 2254(d)(1), "clearly established federal law" refers to the holdings, as opposed to dicta, of the Supreme Court's decisions as of the time of the relevant state-court decision. Williams, 529 U.S. at 412, 120 S.Ct. 1495; Barnes v. Elo, 231 F.3d 1025, 1028 (6th Cir.2000). The "contrary to" and "unreasonable application" clauses of Section 2254(d)(1) are independent tests and must be analyzed separately. Williams, 529 U.S. at 412-13, 120 S.Ct. 1495; Hill v. Hofbauer, 337 F.3d 706, 711 (6th Cir.2003). A state court decision is "contrary to" federal law only "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13, 120 S.Ct. 1495.
Even if the state court identifies the "correct governing legal principle," a federal habeas court may still grant the petition if the state court makes an "unreasonable application" of "that principle to the facts of the particular state prisoner's case." Williams, 529 U.S. at 413, 120 S.Ct. 1495. A state court decision also involves an unreasonable application if it unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Hill, 337 F.3d at 711 (citing Williams, 529 U.S. at 407, 120 S.Ct. 1495). As the Supreme Court has advised, "[t]he question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable—a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) (citing Williams, 529 U.S. at 410, 120 S.Ct. 1495). The reasonableness of the application of a particular legal principle depends in part on the specificity of the relevant rule. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). While the application of specific rules may be plainly correct or incorrect, courts may have more leeway in reasonably
As to the "unreasonable determination of the facts" clause in Section 2254(d)(2), the Supreme Court's application of that section in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), provides guidance. In Wiggins, the Court noted that a "clear factual error," such as making factual findings regarding the contents of social service records contrary to "clear and convincing evidence" presented by the defendant, constitutes an "unreasonable determination of the facts in light of the evidence presented." Id. at 528-29, 123 S.Ct. 2527. In other words, a state court's determination of facts is unreasonable under Section 2254(d)(2) if its findings conflict with clear and convincing evidence to the contrary. This analysis mirrors the "presumption of correctness" afforded factual determinations made by a state court which can only be overcome by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir.2003); Clark v. O'Dea, 257 F.3d 498, 506 (6th Cir.2001) ("[R]egardless of whether we would reach a different conclusion were we reviewing the case de novo, the findings of the state court must be upheld unless there is clear and convincing evidence to the contrary."). This presumption only applies to basic, primary facts, and not to mixed questions of law and fact. See Mitchell, 325 F.3d at 737-38 (holding ineffective assistance of counsel is mixed question of law and fact to which the unreasonable application prong of Section 2254(d)(1) applies).
By its express terms, however, Section 2254(d)'s constrained standard of review only applies to claims that were adjudicated on the merits in the state court proceeding. See Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir.2004). When a state court does not assess the merits of a petitioner's habeas claim, the deference due under AEDPA does not apply. In such a case, the habeas court is not limited to deciding whether the state court's decision was contrary to or involved an unreasonable application of clearly established federal law, but rather conducts a de novo review of the claim. See Morales v. Mitchell, 507 F.3d 916, 929 (6th Cir.2007) (citations omitted); Newton v. Million, 349 F.3d 873, 878 (6th Cir. 2003); Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003). However, if the state court conducts a harmless error analysis but does not indicate whether its finding is based on state or federal constitutional law, a habeas court, while conducting an independent review of the facts and applicable law, must nonetheless determine "whether the state court result is contrary to or unreasonably applies clearly established federal law." Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir.2005) (citing Harris v. Stovall, 212 F.3d 940, 943 (6th Cir.2000)).
A state prisoner must exhaust his state remedies before bringing his claim in a federal habeas corpus proceeding. 28 U.S.C. § 2254(b), (c); see Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Exhaustion is fulfilled once a convicted defendant seeks review of his or her claims on the merits from a state supreme court. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). A habeas petitioner satisfies the exhaustion requirement when the highest court in the state in which the petitioner has been convicted has had a full and fair opportunity to rule on the claims. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994) (citing Manning v. Alexander, 912 F.2d 878,
A petitioner "`cannot obtain federal habeas relief under 28 U.S.C. § 2254 unless he has completely exhausted his available state court remedies to the state's highest court.'" Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir.2001) (quoting Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir.2001)). Rather than dismiss certain claims the court deems unexhausted, however, a habeas court need not wait for exhaustion if it determines that a return to state court would be futile. See Lott v. Coyle, 261 F.3d 594, 608 (6th Cir.2001). In circumstances where the petitioner has failed to present a claim in state court, a habeas court may deem that claim procedurally defaulted because the Ohio state courts would no longer entertain the claim. See Buell, 274 F.3d at 349. To obtain a merit review of the claim, the petitioner must demonstrate cause and prejudice to excuse his failure to raise the claim in state court, or that a miscarriage of justice would occur were the habeas court to refuse to address the claim on its merits. Seymour v. Walker, 224 F.3d 542, 550 (6th Cir.2000) (citing Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)).
In general, a federal court may not consider "contentions of federal law which are not resolved on the merits in the state proceeding due to petitioner's failure to raise them as required by state procedure." Sykes, 433 U.S. at 87, 97 S.Ct. 2497. If a "state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To be independent, a state procedural rule and the state courts' application of it "must rely in no part on federal law." Fautenberry v. Mitchell, No. C-1-00-332, 2001 WL 1763438, at *24 (S.D.Ohio Dec. 26, 2001) (citing Coleman, 501 U.S. at 732-733, 111 S.Ct. 2546). To be adequate, a state procedural rule must be "`firmly established and regularly followed'" by the state courts at the time it was applied. Beard v. Kindler, ___ U.S. ___, 130 S.Ct. 612, 618, 175 L.Ed.2d 417 (2009) (quoting Lee v. Kemna, 534 U.S. 362, 375, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002)). If a petitioner failed to timely present any federal habeas claims to the state courts but has no remaining state remedies, then the petitioner has procedurally defaulted those claims. See Boerckel, 526 U.S. at 848, 119 S.Ct. 1728; Rust, 17 F.3d at 160.
In Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), the Sixth Circuit outlined the now familiar test to be followed when the State argues that a habeas claim is defaulted because of a prisoner's failure to observe a state procedural rule. The Circuit later summarized the Maupin four-part test as follows:
Williams v. Coyle, 260 F.3d 684, 693 (6th Cir.2001) (citing Maupin, 785 F.2d at 138) (further citations omitted).
In determining whether the Maupin factors are met, the federal court looks to the "last explained state-court judgment." Ylst v. Nunnemaker, 501 U.S. 797, 805, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Combs v. Coyle, 205 F.3d 269, 275 (6th Cir.2000). "`[A] procedural default does not bar consideration of a federal claim on habeas corpus review unless the last state court rendering a reasoned opinion in the case clearly and expressly states that its judgment rests on a state procedural bar.'" Morales, 507 F.3d at 937 (quoting Frazier v. Huffman, 343 F.3d 780, 791 (6th Cir.2003)). Conversely, if the last state court to be presented with a particular federal claim reaches the merits, then the procedural bar is removed and a federal habeas court may consider the merits of the claim in its review. See Ylst, 501 U.S. at 801, 111 S.Ct. 2590.
If the first three Maupin factors are met, the claim is procedurally defaulted. However, the federal court may excuse the default and consider the claim on the merits if the petitioner demonstrates that (1) there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error, or (2) a fundamental miscarriage of justice would result from a bar on federal habeas review. See Maupin, 785 F.2d at 138; Hutchison v. Bell, 303 F.3d 720, 735 (6th Cir.2002); Combs, 205 F.3d at 274-275 (citing Coleman, 501 U.S. at 750, 111 S.Ct. 2546).
A petitioner can establish cause in two ways. First, a petitioner may "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); Mohn v. Bock, 208 F.Supp.2d 796, 801 (E.D.Mich. 2002). Objective impediments include an unavailable claim or interference by officials that made compliance impracticable. Murray, 477 U.S. at 488, 106 S.Ct. 2639; Mohn, 208 F.Supp.2d at 801. Second, constitutionally ineffective assistance of counsel constitutes cause. Murray, 477 U.S. at 488-489, 106 S.Ct. 2639; Rust, 17 F.3d at 161; Mohn, 208 F.Supp.2d at 804-05.
If a petitioner asserts ineffective assistance of counsel as cause for a default, that ineffective assistance claim must itself be presented to the state courts as an independent claim before it may be used to establish cause. Murray, 477 U.S. at 488-489, 106 S.Ct. 2639. If the ineffective assistance claim is not presented to the state courts in the manner that state law requires, that claim is itself procedurally defaulted and can only be used as cause for the underlying defaulted claim if the petitioner demonstrates cause and prejudice with respect to the ineffective assistance claim. Edwards v. Carpenter, 529 U.S. 446, 452-53, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000).
Because "the cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice," the Supreme Court has recognized "a narrow exception to the cause requirement where a constitutional violation has `probably resulted' in the conviction of one who is `actually innocent' of the substantive offense." Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (quoting Murray v. Carrier, 477 U.S. at 495-96, 106 S.Ct. 2639). When the Supreme Court extended this exception to claims of capital sentencing error, it limited the exception in the capital sentencing context to cases in which the petitioner could show "`by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.'" Id. (quoting Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992)).
Drummond asserts that his Sixth Amendment right to a public trial was violated when the trial court closed the courtroom for portions of his trial on February 4 and February 5. This issue was addressed by the Ohio Supreme Court on direct appeal and, therefore, this Court may review this ground for habeas relief.
On February 4, 2004, the direct examination of James "Cricket" Rozenblad during Drummond's trial took place. (ECF. No. 35, Trial Tr. Vol. 14 at 2933-2951.) At the start, Rozenblad testified that he was nervous. (Id. at 2933.) Before his cross-examination began and immediately following the luncheon recess, outside the presence of the jury, the trial court announced:
(ECF No. 35, Trial Tr., Vol. 14, at 2967-68.)
After the courtroom was cleared of spectators, and still outside the presence of the jury, the trial court explained the reasons for the partial closure:
Id. at 2968-71 (ellipses added). Following this explanation, the jurors were brought in and the trial continued with only the parties, attorneys, court staff, and members of the media. The trial court memorialized its order in an entry dated February 5, 2004, stating, in full:
(ECF No. 34, App. to Return, Vol. 2, at 81.) The clearing of the courtroom occurred for the testimony of three witnesses for the prosecution: James "Cricket" Rozenblad (cross-examination only), Nathaniel Morris, and Yaraldean Thomas, who were the last three witnesses for the day. See Drummond, 111 Ohio St.3d at 22, 854 N.E.2d 1038. After Rozenblad and Morris testified, they, too, were directed by the Court to "leave the building." (ECF No. 35, Trial Tr., Vol. 14, at 2993 (Rozenblad) 3061, (Morris).)
The next day, on February 5, 2004, prior to calling witness Leonard Schroeder, the prosecuting attorney asked for a side bar, after which the trial court announced in front of the jury:
(ECF No. 49, App. to Return, Vol. 2, at 82.)
Drummond appealed his conviction and sentence to the Ohio Supreme Court as of right. On November 4, 2005, the Ohio Supreme Court ordered supplemental briefing on the issue of whether the partial closures deprived Drummond of his Sixth Amendment right to a public trial. Drummond, 111 Ohio St.3d at 19, 854 N.E.2d 1038. The Ohio Supreme Court ultimately determined that Drummond's right to a public trial was not violated, and it affirmed his conviction and sentence. See id. at 24, 854 N.E.2d 1038; infra.
Drummond alleges in his Amended Petition that he was deprived of his right to a public trial.
Drummond contends that the February 4 and February 5 partial closures each violated his Sixth Amendment right to a public trial. Drummond procedurally defaulted his claim with respect to the February 5 partial closure. As to the February 4 partial closure, this Court finds that the Ohio Supreme Court's rejection of Drummond's claim was objectively unreasonable. Each will be discussed seriatim.
The Ohio Supreme Court held that Drummond failed to object to the February 5 partial closure, and thus his claim of right to a public trial was waived with respect to that partial closure. Drummond, 111 Ohio St.3d at 24, 854 N.E.2d 1038. "The failure to object contemporaneously is a generally recognized, firmly established independent and adequate state law ground for refusing to review trial errors." Burton v. Bock, 187 Fed.Appx. 465, 470 (6th Cir.2006) (citing Coleman, 501 U.S. at 747, 111 S.Ct. 2546). Because Drummond failed to comply with a state procedure to have his February 5 partial closure claim heard by the state courts, he has procedurally defaulted this claim. Edwards, 529 U.S. at 451, 120 S.Ct. 1587. Thus, for his claim to be cognizable in this Court, Drummond must show cause and prejudice for his procedural default. Id.
Drummond argues that his trial counsel were ineffective for failing to object to the February 5 partial closure, and that this constitutes cause for his procedural default. As stated above, ineffective assistance of counsel can constitute cause and prejudice excusing a procedural default of an underlying claim. Beuke v. Houk, 537 F.3d 618, 631 (6th Cir.2008) (citing Franklin v. Anderson, 434 F.3d 412, 418 (6th Cir.2006)). However, a claim of ineffective assistance of counsel, asserted as cause for procedural default, can itself be procedurally defaulted. Edwards, 529 U.S. at 452-53, 120 S.Ct. 1587. In his briefing, Drummond never presented to the Ohio Supreme Court the issue of ineffective assistance
Drummond argues that a closed, off-record, in-chambers discussion preceded the trial judge's decision to close the courtroom on February 5, 2004, and that, as a result, "there is no indication in the transcript as to whether or not Drummond or his defense counsel did object in chambers to the subsequent closure." (ECF No. 57, at 10 (emphasis in original).) Put another way, Drummond argues that, because there was no record as to whether his trial counsel objected to the February 5 partial closure, his appellate counsel were unable to raise ineffective assistance for failure to object, which constitutes "cause" for his failure to raise the issue on appeal. Drummond's argument lacks merit. Although he is correct that the in-chambers discussion was not recorded, a February 5, 2004 entry by the trial court stated that the February 5 partial closure was "without objection from either party." Drummond, 111 Ohio St.3d at 21, 854 N.E.2d 1038. The trial court's entry placed Drummond's appellate counsel on notice that trial counsel failed to object to the February 5 partial closure, and thus there was no "objective factor external to the defense [that] impeded counsel's efforts" to raise the issue on appeal. Coleman, 501 U.S. at 752, 111 S.Ct. 2546.
Drummond also argues that he made "efforts in state court to address his counsel's ineffectiveness for allowing the closure of the courtroom in the only way he could," namely, ineffective assistance for failing to request that all sidebar conferences be recorded. (ECF No. 57, at 10.) This does not rescue Drummond from procedural default. Even if it is true that one of the unrecorded sidebar conferences involved matters pertaining to the February 5 partial closure, "[i]t is not enough that all the facts necessary to support the federal claim were before the state courts [. . .]." Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); see also Lott, 261 F.3d at 607. Rather, a petitioner must present "the same claim under the same theory" to the state courts. Caver v. Straub, 349 F.3d 340, 346 (6th Cir.2003) (citation omitted). As Drummond did not present to the Ohio courts the theory of ineffective assistance for failure to object to the February 5 partial closure, he failed to exhaust that claim before the Ohio courts.
Drummond's ineffective assistance claim with respect to the failure to object to the February 5 partial closure is procedurally defaulted and, therefore, so is his claim that the February 5 partial closure violated his Sixth Amendment rights.
Drummond also asserts that he is entitled to habeas relief because the February 4 partial closure violated his right to a public trial. The right to a public trial is guaranteed by the Sixth Amendment, and a violation of such a fundamental right constitutes structural error. Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). That is, because the "defect affect[s] the framework within which the trial proceeds," Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), it "def[ies] analysis by `harmless-error' standards." Id. at 309, 111 S.Ct. 1246.
As stated above, the finding by a majority of the Ohio Supreme Court that the trial court did not commit structural error in ordering the partial closure of the courtroom and that Drummond's right to a public trial was not violated by the February 4 partial closure is subject to AEDPA's deferential standard of review.
The United States Supreme Court began its review of the Georgia Supreme Court's ruling by noting that "the right to an open trial" is not absolute, and "may give way in certain cases to other rights or interests [...]." Id. at 45, 104 S.Ct. 2210. The Court cautioned, however, that there is a "presumption of openness" and, therefore, the "balance of interests must be struck with special care." Id. It then applied precedent of the First Amendment courtroom closure cases, specifically "the tests set out in Press-Enterprise and its predecessors" under which: (1) "the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced" if the courtroom remains open; (2) "the closure must be no broader than necessary to protect that interest[;]" (3) "the trial court must consider reasonable alternatives to closing the proceeding[;]" and (4) "it must make findings adequate to support the closure." Id. at
Applying this test, the Supreme Court first noted that the purported interest of "protecting the privacy of persons not before the court [...] may well justify closing portions of a suppression hearing to the public." Id. at 48, 104 S.Ct. 2210. The Court found, however, that the prosecution, in seeking the closure, "was not specific as to whose privacy interests might be infringed, how they would be infringed, what portions of the [evidence] might infringe them," and, "[a]s a result, the trial court's findings were broad and general, and did not purport to justify the closure of the entire hearing." Id. Further, the trial court "did not consider alternatives to immediate closure of the entire hearing" and, consequently, "the closure was far more extensive than necessary." Id. at 48-49, 104 S.Ct. 2210. Accordingly, the Supreme Court held that the Georgia trial court had violated petitioner's Sixth Amendment right to a public trial.
In Drummond, the Ohio Supreme Court relied on Waller in reviewing the trial court's February 4 closure but adopted a modified version of the test articulated by the United States Supreme Court. The court explained:
Drummond, 111 Ohio St.3d at 22, 854 N.E.2d 1038 (citing Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir.1992); United States v. Sherlock, 962 F.2d 1349, 1357 (9th Cir.1989); Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir.1989); Douglas v. Wainwright, 739 F.2d 531, 533 (11th Cir.1984)).
The Ohio Supreme Court properly noted that Waller addressed a total closure of a courtroom, while the trial court in Drummond only partially closed the courtroom. At the time the Ohio Supreme Court decided Drummond, the United States Supreme Court had not analyzed the extent of a petitioner's Sixth Amendment right to a public trial when the courtroom was only partially closed either to a particular person or for a limited duration. Indeed, the Court did not conduct such a review until very recently. See Presley v. Georgia, ___ U.S. ___, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010). In Presley, the Court reviewed the Georgia Supreme Court's determination that there was no violation of the defendant's Sixth Amendment right to a public trial when the trial court totally excluded the public from observing the voir dire portion of petitioner's criminal trial. In its analysis, the Court applied the four-part Waller test. Id. at 724 (quoting Waller, 467 U.S. at 48, 104 S.Ct. 2210).
The decision of the Ohio Supreme Court in Drummond, however, was decided a little over three years before Presley when there was no clearly established federal law concerning partial courtroom closures.
While Presley now makes it clear that there must be an "overriding interest," as pronounced in Waller, to justify even a partial courtroom closure, this Court may only address whether the Ohio Supreme Court's requirement of "a substantial interest" rather than "an overriding interest" was, at that time, an unreasonable application of Waller, not whether it was incorrect. See 28 U.S.C. § 2254(d)(1); see also Renico v. Lett, ___ U.S. ___, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010) (citing Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). In light of the existing disagreement about the precedent created by Waller at the time the Ohio Supreme Court decided Drummond, this Court cannot say that it was objectively unreasonable for it to apply a modified Waller test.
Before turning to the Waller analysis, however, it should be noted that, although the Sixth Amendment right to a public trial is the right of the accused alone,
Gannett Co. v. DePasquale, 443 U.S. 368, 383, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Or, in the words of Justice Harlan: "Essentially, the public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings. A fair trial is the objective, and `public trial' is an institutional safeguard for attaining it." Estes v. Texas, 381 U.S. 532, 588, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring) (citing In re Oliver, 333 U.S. 257, 266-73, 68 S.Ct. 499, 92 L.Ed. 682 (1948)).
The Ohio Supreme Court in Drummond held that the inclusion of the media served to protect these societal interests and stated: "media presence helped safeguard Drummond's right to a public trial. Indeed, the witnesses' awareness of the media minimizes the risk that they would alter their testimony when the proceeding was partially closed." 111 Ohio St.3d at 22, 854 N.E.2d 1038. It continued: "Moreover, the transcript of the trial became a public record. In sum, we find none of the secrecy prohibited by the Sixth Amendment." Id. at 22-23, 854 N.E.2d 1038 (citing Sherlock, 962 F.2d at 1358). As one circuit court noted, however, the fact that a trial court permitted the media to be present during a partial closure of the courtroom does not guarantee media presence and thus, in and of itself, does not automatically cure Sixth Amendment deficiencies:
Douglas v. Wainwright, 714 F.2d 1532, 1542-43 (11th Cir.1983) (citation omitted; final emphasis added), vacated and remanded, 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 874 (1984), reaffirmed 739 F.2d 531 (11th Cir.1984). The court in Douglas concluded: "The determination of the degree of press coverage, therefore, is necessary to a determination of the extent to which the public trial was infringed." Id. at 1543.
Here, no evidence of media presence during the entire closure was presented by the State, nor did it present any evidence that the closed portions of the trial were reported by the media, much less reported accurately.
Concerning the first part of the Waller test, the Ohio Supreme Court found that "the trial court's interest in maintaining courtroom security and protecting witness safety supported the trial court's limited closure of the courtroom." Drummond, 111 Ohio St.3d at 22, 854 N.E.2d 1038. The court concluded the advanced interest was "substantial" because the trial court noted that there had been "a physical altercation between a spectator and courtroom deputies, and a second incident occurred in the judge's chambers[,]" and that "fear of retaliation [was] expressed by various witnesses [...]." Id. The Ohio Supreme Court additionally, and without reference to any finding of the trial court, found a substantial interest because of "the dangerous nature of gang violence and the genuine need to protect witnesses testifying against gang members from the deadly threat of retaliation." Id. As discussed above, given the state of the law at the time, this Court finds that the Ohio Supreme Court's application of Waller to require a "substantial," as opposed to an "overriding," interest was not unreasonable. It must determine, however, whether it was unreasonable for the Ohio Supreme Court to conclude that there was a "substantial reason" for the closure on February 4.
The Supreme Court has held unconstitutional under the First Amendment at least one statute that issued a blanket closure. See, e.g., Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982). In Globe Newspaper, the Court held unconstitutional a Massachusetts statute that required trial courts to automatically exclude the press and the general public from the courtroom during testimony of minors who were victims of sexual abuse. The Court agreed with the State that its interest in safeguarding the physical and psychological well-being of minors was a compelling one, "[b]ut as compelling as that interest is," the Court held that it did "not justify a mandatory closure rule, for it is clear that the circumstances of the particular case may affect the significance of the interest. A trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim." Id. at 607-08, 102 S.Ct. 2613. Courts, relying on Globe Newspaper, have held that trial
In short, a substantial interest cannot be advanced without being defined. A substantial interest may, therefore, be found where the trial court makes specific inquiries concerning the reason for closure, such as inquiring about a particular witness's fear of testifying. See, e.g., Woods, 977 F.2d at 75 (affirming denial of habeas relief where trial court learned from prosecution that eye witness was threatened by at least one member of accused's family, justifying exclusion of all of accused's family members for duration of her testimony); Nieto, 879 F.2d at 749 (affirming denial of habeas relief where trial court learned witness "worried about testifying since two of the assailants were still at large"). On the other hand, a substantial interest cannot be found if the trial court makes no inquires about a particular witness's alleged fear. E.g., Guzman v. Scully, 80 F.3d 772, 775-76 (2d Cir.1996). In sum, if a witness's fear is the advanced interest, the trial court must inquire as to which witness is afraid and as to the nature of his or her fears.
Here, the trial court made no specific inquiries on the record about who was feeling threatened by whom, but only generally stated that "some of the jurors—or witnesses feel threatened by some of the spectators in the court." Drummond, 111 Ohio St.3d at 19, 854 N.E.2d 1038. Similarly, the trial court's order closing the courtroom that was issued the following day did not identify who was threatening whom but merely cited "the behavior of some of the Courtroom spectators and the fear of retaliation expressed by various witnesses" as the reason for the closure. Id. at 20, 854 N.E.2d 1038 (emphases added). Indeed, nowhere in the trial record is it discussed by any party which witnesses were frightened or which spectators were threatening witnesses.
While the witnesses cannot be identified by review of the trial record, in contrast, the "jurors" also referenced by the trial court at the time it issued the closure can be identified. At the time of the closure, the trial court generally stated "when we were seating the jury [...] Drummond
Likewise, as the dissent in Drummond pointed out, the two incidents mentioned by the trial court concerning general courtroom security also could not justify the closure on February 4 because they "had occurred the previous day." Id. at 52, 854 N.E.2d 1038 (Moyer, C.J., dissenting) (emphasis in original). Even if those incidents occurred at the end of February 3, the trial proceeded the following morning without any reference to them and, apparently, without any security concerns. (ECF No. 35, Trial Tr., Vol. 13, at 2844.) In other words, it is not evident from the trial transcript how these disturbances could constitute an immediate threat to courtroom security on the afternoon of February 4. Moreover, the perpetrators of each incident were known by the trial court and could have easily been excluded from the remaining proceedings to address any security threat that those individuals posed. Drummond, 111 Ohio St.3d at 20, 854 N.E.2d 1038. The trial judge made no such exclusionary order. This Court finds no basis upon which it may find that either incident posed an immediate threat to courtroom security. In sum, given the trial record, neither incident may reasonably be said to constitute a substantial interest justifying the closure on February 4.
Accordingly, this Court finds that it was an unreasonable application of Waller for the Ohio Supreme Court to find that the prosecution had advanced a substantial interest to justify the closure on February 4.
The Ohio Supreme Court also found that "the closure was no broader than necessary," applying the second part of the Waller test. Drummond, 111 Ohio St.3d at 22, 854 N.E.2d 1038. The court reasoned that closure was sufficiently tailored because
Drummond, 111 Ohio St.3d at 22, 854 N.E.2d 1038. In short, the Ohio Supreme Court held that because the closure lasted for one cross-examination and two full examinations (as opposed to the entire trial), the media was present, and the trial transcript became public record, the closure was no broader than necessary. Yet, nowhere does it explain the basis of this holding.
The United States Supreme Court has noted: "Our cases have uniformly recognized the public trial guarantee as one created for the benefit of the defendant." Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). But the Court has never specified whose presence, at a minimum, must be allowed to ensure a defendant a constitutionally guaranteed public trial. But see In re
Here, petitioner's counsel explicitly argued that the closure should not extend to Drummond's family. Drummond, 111 Ohio St.3d at 20, 854 N.E.2d 1038 ("I don't disagree that there has been some sort of misconduct here that has been brought to my attention. However, that has not been attributable to the defendant, to Mr. Drummond, and we, therefore, don't think that he should be punished in terms of not having the support, people—his family, that in the nature of this case, a capital case, that he would require making.") Nonetheless, the trial court did not permit Drummond's family to attend and made no findings explaining why Drummond's family should be excluded.
Habeas courts generally require lower courts to offer some rationale justifying the extent of the closure to determine whether it was sufficiently tailored. E.g., Woods, 977 F.2d at 77 ("Having determined that the trial judge adequately assessed the scope of [the testifying eyewitness's] fear, we disagree with [petitioner's] contention that the closure order was broader than necessary"). Such rationale is particularly important where the exclusion extends to petitioner's family members. E.g., LaPlante v. Crosby, 133 Fed. Appx. 723, 726 (11th Cir.2005) (finding second part of Waller test met where petitioner "objected to the exclusion of members of his family, the trial court found that the protection of the [witness, a child who was a victim of sexual abuse] (a compelling state interest under Globe Newspaper) required the family members to be excluded along with the general public"); English v. Artuz, 164 F.3d 105, 109 (2d Cir.1998) (finding second part of Waller test not met where trial court failed to justify exclusion of accused's family members).
Here, the trial court offered no specific rationale justifying the extent of its closure. For example and as discussed above, there were no findings that any particular witness felt threatened by any particular spectator. Likewise, there were no findings that Drummond's family posed any threat. Under such circumstances, a reviewing court cannot assess whether the trial court's closure was narrowly tailored. See, e.g., Guzman, 80 F.3d at 776 ("With the interest in favor of closure merely alleged but not established, there could be no compliance with the second requirement that the closure be `no broader than necessary to protect' the interest.") (quoting
Furthermore, this Court disagrees with the Ohio Supreme Court's assumption that because the closure was of a "limited" duration, one cross-examination and two full examinations, it was necessarily sufficiently tailored. 111 Ohio St.3d at 22, 854 N.E.2d 1038. Crucially, the Ohio Supreme Court neglected to consider the importance of the testimony of these witnesses. See, e.g., Judd v. Haley, 250 F.3d 1308, 1317 (11th Cir.2001) (finding Waller test not met and noting that "the record reflects a total closure of the courtroom during the testimony of a critical witness"); English, 164 F.3d at 108 ("The extent of the closure takes into consideration the duration of the closure and importance of the testimony rendered while the courtroom was closed [...].") (citation omitted); cf. Tillman v. Bergh, No. 2:06cv11555, 2008 WL 6843654, at *12 (E.D.Mich. July 2, 2008) (finding no Sixth Amendment violations and noting the triviality of the closure because it lasted the duration of a single witness, a 911 operator whose testimony "lasted only four minutes, and was limited to whether the clocks on patrol car cameras and computers are synchronized with the clock on the computers at Central Dispatch.") As the dissent in Drummond pointed out:
Drummond, 111 Ohio St.3d at 53, 854 N.E.2d 1038 (Moyer, C.J., dissenting) (alterations in original). Although, for reasons discussed under Ground Two below, this Court does not agree with the characterization of these witnesses as key witnesses, it does find that they were important witnesses and disagrees that closure during such important testimony could be considered "limited." By extension, it also cannot agree that the closure was, thus, inherently narrowly tailored.
Accordingly, this Court finds that the Ohio Supreme Court's holding that the closure was no broader than necessary was an unreasonable application of Waller.
The Ohio Supreme Court acknowledged that the trial court did not explicitly consider alternatives to the partial closure, as required by the third part of Waller, but nonetheless found this part of the test was met because "the partial closure of the courtroom [. . .] is narrower than full closure for the entire trial." Drummond, 111 Ohio St.3d at 23, 854 N.E.2d 1038. At best, the Ohio Supreme Court implied that, in ordering a partial closure, the trial court must have considered and rejected the more rigid alternative of a complete closure. Nothing in the trial record, however, reflects that the trial court considered any alternatives. Under Waller, the trial court should have considered alternatives on a reviewable record,
In his dissent in Presley, Justice Thomas, joined by Justice Scalia, contests the majority's characterization of Press-Enterprise and Waller as requiring the trial courts to sua sponte consider alternatives and asserts that neither decision "`explicit[ly]' places on trial courts the burden of sua sponte suggesting alternatives to closure `absent an opposing party's proffer of some alternatives.'" 130 S.Ct. at 727 (Thomas, J., dissenting) (quoting majority opinion, id. at 724; alterations in original); see also Ayala v. Speckard, 131 F.3d 62, 71 (2d Cir.1997) ("[W]e see nothing in [. . .] Waller to indicate that once a trial judge has determined that limited closure is warranted as an alternative to complete closure, the judge must sua sponte consider further alternatives to the alternative deemed appropriate."); accord Bell v. Jarvis, 236 F.3d 149, 169-70 (4th Cir.2000); Gibbons v. Savage, 555 F.3d 112, 117-18 (2d Cir.2009). This Court need not address whether the Ohio Supreme Court should have held that the trial court was required to considered alternatives sua sponte because as explained above, the trial court was presented with at least one alternative by Drummond's counsel, i.e., that Drummond's family be permitted to attend. Drummond, 111 Ohio St.3d at 19, 854 N.E.2d 1038. There is no indication in the record that the trial court considered this alternative or, if it did, why the alternative was rejected. This Court finds that this flat rejection, without explanation, cannot constitute proof that the trial court actually considered the proposed alternative, and thus does not meet the third part of the Waller test.
Further, as the dissent pointed out: "Damian Williams and Michael Peace were identified by the trial court as having been involved in the disturbances the previous day. Thus, the trial court could have barred Williams and Peace from the courtroom as an alternative to closing the court to all spectators except the media." Drummond, 111 Ohio St.3d at 54, 854 N.E.2d 1038 (Moyer, C.J., dissenting) (citing State v. Sanders, 130 Ohio App.3d 92, 98, 719 N.E.2d 619 (1998) (trial court erred by failing to consider alternative of identifying spectators responsible for disturbances and expelling them)). This Court could find nothing in the record to indicate that the trial court considered and then rejected this other evident alternative.
In sum, the record is devoid of any indication that the trial court considered alternatives when ordering the closure. Because the Ohio Supreme Court acknowledged this deficiency, it was an unreasonable application of Waller for it to hold that the requirement of considering alternatives was met.
Finally, the Ohio Supreme Court held that the trial court made adequate findings to support the partial closure, as required by the fourth prong of Waller. Drummond, 111 Ohio St.3d at 23, 854 N.E.2d 1038. Specifically, the Supreme Court found that:
Id. The Ohio Supreme Court further stated that, while additional findings should
This Court disagrees with the characterization of the closure as "limited." As noted above and as explained more fully in the discussion of Ground Two, the witnesses were important to the prosecution's case; the entire public was excluded, including Drummond's family; and there is no evidence in the record that the media was present for the entire duration of the closure or that it made any reports about what occurred during the closure. Under such circumstances, this Court simply cannot say that the closure on February 4, while partial, was also limited. But even if it was limited, the trial court was nonetheless required, under Waller, to make specific factual findings to justify the closure.
Habeas courts, relying on Waller, repeatedly find the Sixth Amendment violated where the trial court failed to articulate specific, reviewable findings to justify a partial courtroom closure. E.g., Judd, 250 F.3d at 1318 (affirming grant of habeas relief where motion for courtroom closure took place off record, in part because there were no reviewable findings of trial court justifying closure); English, 164 F.3d at 109 (affirming grant of habeas relief where "trial judge failed to use the colloquy to arrive at meaningful findings adequate to justify the exclusion of [the accused's] family"); Guzman, 80 F.3d at 776 (reversing and granting habeas relief in part because there was "no finding that the mere presence of [the four persons excluded from the trial] would instill fear in the witness"); Davis, 890 F.2d at 1112 (affirming grant of habeas relief because "trial court improperly violated [petitioner's] Sixth Amendment right to a public trial by failing to articulate specific, reviewable findings"); Mason v. Schriver, 14 F.Supp.2d 321, 325 (S.D.N.Y.1998) (granting habeas relief because the trial court's "conclusory statement is plainly insufficient under Press-Enterprise I, Waller, and their progeny as it falls far short of the `explicit' and `specific' recorded findings necessary to support closure"); accord United States v. Galloway, 937 F.2d 542 (10th Cir.1991) (remanding to trial court to making factual findings supporting closure and noting that, if case had proceeded on habeas review, the proper remedy would be reversal of conviction); United States v. Doe, 63 F.3d 121 (2d Cir.1995) (remanding to trial court to make factual findings supporting closure).
The dissent in Drummond properly characterized the findings of the trial court:
Drummond, 111 Ohio St.3d at 55, 854 N.E.2d 1038 (Moyer, C.J., dissenting) (citing State v. Morris, 157 Ohio App.3d 395, 811 N.E.2d 577 (2004)). Indeed, the only "findings" articulated by the trial court, i.e., witnesses or jurors' fear and the disturbances on February 3, as explained
Here, as described above in relation to other parts of the Waller test, this Court's review of the trial record revealed: (1) no witness testified as to any specific threat; (2) the only potential juror who felt threatened by Drummond was dismissed for cause during jury selection; (3) Michael Peace and Damian Williams caused disturbances on February 3, but nothing in the record suggests they were specifically excluded from attending the trial on the morning of February 4; and (4) nothing in the record suggests that there were any disturbances in the courtroom on the morning of February 4. Taken together, this Court finds nothing in the trial record that the Ohio Supreme Court may have relied upon to supplement the trial court's findings that would justify the closure.
Accordingly, this Court finds it was unreasonable, under Waller, for the Ohio Supreme Court to have found that the trial court set forth reviewable findings justifying the closure and met the fourth part of the test.
For the reasons discussed above, this Court finds that the trial court's partial closure of the courtroom on February 4 resulted in structural error and, therefore, Drummond's Sixth Amendment right to a public trial was violated. Accordingly, Drummond's first ground for relief is granted in part.
Drummond asserts that his Sixth Amendment Confrontation right was violated when the trial court limited the scope of defense counsel's cross-examination of three State witnesses. Drummond raised this issue on direct appeal to the Ohio Supreme Court and, therefore, this Court may review this ground for relief on the merits.
During trial, the court denied defense counsel's request to question Morris, Thomas, and Rozenblad regarding prior or pending criminal charges. Defense counsel sought to introduce evidence that Morris had been charged, but not convicted, of escape in Columbus. Defense counsel proffered that he was entitled to cross-examine Morris regarding the escape charge, reasoning as follows:
(ECF No. 35, Trial Tr., Vol. 14, at 3036-37.)
When the trial court questioned the relevance of the escape charge in Columbus
(Id. at 3037.) Thereafter, the trial court ruled that defense counsel could not cross-examine Morris on the Columbus escape charge but counsel could cross-examine him regarding a previous conviction for false reports. (Id. at 3041-42.)
Defense counsel also sought to cross-examine Thomas regarding a 1992 drug charge that remained pending during the time of trial. The State proffered that, because of the age of the charge and the consequent lack of evidence, it was going to dismiss the charge. The trial court questioned both Thomas and his attorney, Michael Rich, about whether the State had made any promises to Thomas in exchange for his testimony. Both responded that the State had made no promises in exchange for Thomas's testimony against Drummond. Thereafter, the trial court ruled that defense counsel could not use the drug charge pending against Thomas during cross-examination. (ECF No. 35, Trial Tr., Vol. 14, at 3121-27; Vol. 17, at 3676-83.)
Finally, Drummond argues that the trial court erred when it prohibited defense counsel from cross-examining Rozenblad regarding pending marijuana trafficking charges. Defense counsel sought to cross-examine Rozenblad to ascertain whether the pending charges had induced him to testify for the State. Counsel argued as follows:
(Id. at 2958-59; 2959-60.) The trial court responded that it would not permit cross-examination on the pending charges because it had no proof before it that Rozenblad actually had been indicted. (Id. at 2960.)
Addressing this issue, the Ohio Supreme Court held that the trial court did not abuse its discretion in prohibiting defense counsel from questioning Thomas and Morris about pending criminal charges. Although it found that the trial court erred in ruling that counsel could not cross-examine Rozenblad regarding his pending criminal charges, it determined that the error was harmless. It reasoned as follows:
Drummond, 111 Ohio St.3d at 30-31, 854 N.E.2d 1038 (parallel citations omitted).
The Sixth Amendment affords a criminal defendant "the right [...] to be confronted with the witnesses against him." U.S. Const. Amend. VI. As the Sixth Circuit recently acknowledged, "[t]his right is incorporated against the states through the Due Process Clause of the Fourteenth Amendment." Miller v. Stovall, 608 F.3d 913, 918 (6th Cir.2010) (citing Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)).
Because cross-examination is a powerful defense tool used to undercut the credibility of a state witness, the right to confront a witness includes the right to cross-examine him or her regarding possible biases. Permitting defense counsel to cross-examine a state witness about prior convictions "afford[s] the jury a basis to infer that the witness's character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).
A trial court has the authority to limit the scope of cross-examination for purposes of curtailing harassment, prejudice, or confusion. Miskel v. Karnes, 397 F.3d 446, 452 (6th Cir.2005). The extent (or limitation) of cross-examination is within the sound discretion of the trial court. Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931). When a trial court merely limits the extent of cross-examination, rather than barring it altogether, the trial court is afforded wider latitude. Dorsey v. Parke, 872 F.2d 163, 167 (6th Cir.1989). In these circumstances, the test is "whether the jury had enough information, despite the limits placed on otherwise permitted cross-examination, to assess the defense theory." Id. (citations omitted). The impetus for this test is to permit the defense to "`plac[e] before the jury facts from which bias, prejudice or lack of credibility of a prosecution witness might be inferred[.]'" Id. (quoting United States v. Garrett, 542 F.2d 23, 25 (6th Cir.1976)). Where a trial court limits the cross-examination of the government's "star" witness, a reviewing court must analyze the claim with heightened scrutiny. Dorsey, 872 F.2d at 166.
In Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), the Supreme Court held that, when a reviewing court determines that a trial court unconstitutionally limited the scope of a defense cross-examination, it should apply the harmless error test articulated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Court in Van Arsdall advised:
Id. at 684, 106 S.Ct. 1431 (citations omitted).
Pursuant to the standard set forth above, this Court must now decide whether
The Ohio Supreme Court did not contradict or unreasonably apply Supreme Court precedent when it reviewed the Morris and Thomas cross-examinations. As it observed, the charges against Morris already had been dropped by the time he testified. Thus, there was no incentive for Morris to curry favor with the State by altering his testimony. Similarly, the charges against Thomas were twelve years old at the time of trial and the parties were aware that the prosecution intended to dismiss them because the evidence supporting them had disappeared. On these grounds, the Ohio Supreme Court determined that the trial court did not abuse its discretion by prohibiting defense counsel from cross-examining on these charges.
This decision was a reasonable one. The purpose of defense counsel's ability to cross-examine state witnesses about pending criminal charges is to uncover any possible motivations the witness might have to testify favorably for the state. Here, Morris's charges already were dismissed and the charges against Thomas were going to be dropped because of their age. Neither Morris nor Thomas had any incentive to alter their testimony. Thus, the Ohio Supreme Court's ruling that the trial court had authority to limit this aspect of defense counsel's cross-examination was not unreasonable.
On direct appeal, the Ohio Supreme Court held that the trial court should have permitted counsel to cross-examine Rozenblad regarding the pending drug charges because, "if the defense had been permitted the opportunity to question Rozenblad about the pending charges, the jury could have tested his credibility." Drummond, 111 Ohio St.3d at 31, 854 N.E.2d 1038. The Ohio Supreme Court thereafter held that any error was harmless because defense counsel questioned Rozenblad about the events on the night of the murder, elicited that he had consumed large quantities of drugs and alcohol on that evening, along with the fact that he disliked Drummond. Counsel also elicited that Rozenblad was, like Drummond, friends with Schroeder and thus had the identical motive to shoot at the Rutledge Avenue home as Drummond.
When reviewing the Ohio Supreme Court's harmless error analysis with the Van Arsdall factors, it appears that the court addressed only one of the factors, i.e., the extent of cross-examination otherwise permitted. The court did not comment on the importance of Rozenblad's testimony to the State's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting Rozenblad's testimony, or the overall strength of the State's case.
When a state court does not assess the merits of a petitioner's habeas claim, the deference due under AEDPA does not apply. In such a case, the habeas court is not limited to deciding whether that court's decision was contrary to or involved an unreasonable application of clearly established federal law, but rather conducts a de novo review of the claim. Morales, 507 F.3d at 930 (citations omitted); Newton, 349 F.3d at 878; Maples, 340 F.3d at 436-37. If the state court conducts a harmless error analysis but does not indicate whether its finding is based on state or federal constitutional law, however, a habeas court, while conducting
Because the Ohio Supreme Court did not address the remaining factors of the Van Arsdall test, this Court presumes, based on the above precedent, that it must conduct a de novo review of them and determine whether the Ohio Supreme Court's result was unreasonable.
In the Traverse, Drummond argues that Rozenblad's testimony was essential to the State's case. He maintains that Rozenblad established Drummond's presence at the party on Duncan Lane in which he overheard Drummond, Gilliam, and one other individual talking about a newcomer to the neighborhood who may have been involved in Schroeder's death. Drummond notes that it was Rozenblad who connected Drummond to the Lincoln Knolls Crips gang and who had connected Drummond to Schroeder. Rozenblad also testified that he saw Drummond with a gun at the party.
Respondent counters that Rozenblad's testimony was cumulative of other witnesses, thereby diminishing its importance. He asserts that other witnesses testified regarding Drummond's gang activity, his connection to Schroeder, his presence at the party, and his possession of a gun while there. In fact, other witnesses did testify about Drummond's gang involvement. Thomas testified that he knew that Drummond was a member of the Lincoln Knolls Crips. (ECF No. 35, Trial Tr., Vol. 14, at 3079-80.) Sergeant Michael Lambert of the Youngstown Police Department's Gang Unit also testified that Drummond's picture and name were in a book partially devoted to Schroeder.
Rozenblad's testimony was also cumulative and corroborative of the testimony of other State witnesses. Similar to Rozenblad's testimony, Williams testified that he saw Drummond get in the passenger side of Gilliam's car driving towards the Dent home. (Id., Vol. 13, at 2706.) On direct examination, Thomas testified that, while at the party, he observed Drummond and Gilliam whispering shortly before the shooting occurred:
(Id., Vol. 14, at 3101-02.) Chauncey Walker, a fellow inmate of Drummond's, also provided corroborating testimony when he stated that Drummond had told him that he shot into the Dent home because he believed Dent was involved in Schroeder's death. (Id., Vol. 15, at 3196.)
The defense did present contradictory testimony from Elisa Rodriguez, who identified another individual, rather than Drummond, as the shooter at the Dent home. In fact, she affirmatively stated that Drummond was not at the crime scene. (Id., Vol. 16, at 3449.) This latter testimony was certainly available for consideration by the jury. Thus, this factor weighs in favor of a finding of harmless error.
Although the State had a solid case, it was not unassailable. Several witnesses testified regarding Drummond's motive, his gang involvement and association with Schroeder, as well as his whereabouts on the night of the murder. While the State presented ballistic evidence that the bullets shot into the Dent home were compatible with a weapon Drummond reportedly carried on the night of the murder, it never actually recovered the murder weapon. Moreover, the closest eyewitness to the shooting, Elisa Rodriguez, testified that she did not see Drummond, but saw another individual at the scene. Thus, this factor weighs neither for nor against a finding of harmless error.
As described above, the Ohio Supreme Court applied the final Van Arsdall factor in finding the error harmless. The court found that, because Rozenblad was cross-examined about his extensive alcohol and drug use on the night of the murder, his dislike of Drummond, and his friendship with Brett Schroeder, the jury was aware of factors other than the pending drug charges that may have similarly biased Rozenblad's testimony. See Drummond, 111 Ohio St.3d at 31, 854 N.E.2d 1038. This Court holds that the Ohio Supreme Court's implicit determination that this factor weighs in favor of finding a harmless error was not unreasonable.
Having conducted a de novo review of the Van Arsdall factors that the State court omitted, this Court ultimately concludes that the Ohio Supreme Court's finding that the error was harmless was not unreasonable. Although Drummond claims that Rozenblad was the key witness who "anchored for the State the motive attributed to Drummond," that conclusion is not clearly reflected in the trial transcripts. (ECF No. 57 at 39.) While Rozenblad certainly was an important witness for the State because he testified that he overheard Drummond talking at the party about a newcomer to the neighborhood who might have had something to do with Schroeder's death, the testimony of others was also important to the State's case and corroborative of much of Rozenblad's other testimony.
While information about Rozenblad's pending criminal charges may have been helpful to the jury in assessing Rozenblad's credibility, when weighing all the factors, this Court agrees with the Ohio Supreme Court's conclusion that any error in restricting the cross-examination was harmless, particularly given Rozenblad's admission on cross-examination that he did not like Drummond and had been friends with Schroeder. Accordingly, the Ohio Supreme Court's disposition of the issue was not contrary to nor an unreasonable application of Van Arsdall. As such, Drummond's second ground for relief is not well-taken.
In this ground, Drummond contends that the trial court erred when it admitted gang and weapon evidence during trial. In the Traverse, Drummond concedes that he cannot meet the standard required under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and he withdraws this ground for relief. This Court therefore will not review it.
Drummond argues that the trial court erred when it retained two venire members and placed them on the jury and excused a third panel member from jury service. The trial court's actions, Drummond maintains, violate his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. In his Return of Writ, Respondent asserts that this claim is procedurally defaulted because Drummond failed to raise it on direct appeal.
In State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), the Ohio Supreme Court held that a final judgment of conviction bars a convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial on the merits, or on appeal from that underlying judgment. Id. at 180, 226 N.E.2d 104; see also State v. Roberts, 1 Ohio St.3d 36, 39, 437 N.E.2d 598 (1982) (holding policy behind Perry bars post-conviction petitioners from raising issues that could have been raised on direct appeal in a collateral proceeding to avoid reversal of conviction based on collateral, rather than constitutional, issues). Thus, unless a claim is based on evidence dehors the record, it must be raised during direct appeal, or be deemed waived.
In his Traverse, Drummond concedes that this claim is based on evidence contained within the trial record and is therefore procedurally defaulted under the Perry doctrine. Furthermore, Drummond does not assert cause and prejudice to excuse the procedural default.
Accordingly, the Court finds this claim to be procedurally defaulted and will not review it on the merits.
In Drummond's fifth ground for relief he asserts that the evidence the State presented during trial is insufficient to support his conviction.
On direct appeal, the Ohio Supreme Court reviewed the evidence the State presented during trial and found that Drummond could not support his insufficiency claims. After citing Jackson and its Ohio analog, it held:
Drummond, 111 Ohio St.3d at 39-40, 854 N.E.2d 1038.
Drummond claims in this ground for relief that the trial judge was biased or erred in several respects. First, he asserts that the trial court erred when it presided over both his trial and co-defendant Gilliam's trial. Drummond also claims that the trial court failed to require that several sidebar conferences be placed on the record. He maintains that the trial judge made inappropriate comments regarding witnesses and defense counsel during trial. Drummond argues that the trial court did not rule on the defense's objections during the State's closing argument. He also claims the trial court erred when it denied his request for new counsel, denied his motion for a change of venue, overruled counsel's objections regarding prosecutorial misconduct, and questioned whether Drummond was truly remorseful over killing a baby.
Respondent asserts that all of the sub-claims Drummond raises here are procedurally defaulted because Drummond never raised them on direct appeal. Drummond raised one of these sub-claims (trial judge presiding over co-defendant's trial) in his postconviction petition and others in his application to reopen his direct appeal.
This Court finds Drummond's many sub-claims to be procedurally defaulted on various grounds. First, as Respondent notes, these claims are contained in the trial record and, pursuant to State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), could have been raised on direct appeal. Moreover, the sub-claims raised as part of Drummond's application to reopen direct appeal were raised as part of an ineffective assistance of appellate counsel claim. The Sixth Circuit has held that to exhaust a claim, a petitioner must present it to the state under the same theory in which it is later presented in federal court. See Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir.2004) (holding that "the exhaustion doctrine requires the petitioner to present `the same claim under the same theory' to the state courts before raising it on federal habeas review") (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)); Wong v. Money, 142 F.3d 313, 322 (6th Cir.1998). This Court finds that these sub-claims are procedurally defaulted because they were not presented to the Ohio courts under the same theory as they are raised in the Amended Petition. Accordingly, this Court will not review these sub-claims on the merits.
In this ground for relief, Drummond alleges several instances in which defense counsel was ineffective during the culpability phase of his trial. Specifically, he asserts that counsel was constitutionally ineffective when they failed to:
(ECF No. 45, at 53-67.)
To succeed on an ineffective assistance of counsel claim, a petitioner must satisfy the familiar two-prong test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the petitioner must demonstrate that counsel's errors were so egregious that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. 2052. To determine if counsel's performance was "deficient" pursuant to Strickland, a reviewing court must find that the representation "falls `below an objective standard of reasonableness.'" Murphy v. Ohio, 551 F.3d 485, 496 (6th Cir.2009) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. 2052).
Second, the petitioner also must demonstrate that he or she was prejudiced by counsel's errors. "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687, 104 S.Ct. 2052. A petitioner must point to "specific errors" in counsel's performance. United States v. Cronic, 466 U.S. 648, 666, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Thereafter, a reviewing court must subject the allegations to rigorous scrutiny, determining "whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. 2052. A reviewing court must strongly presume that counsel's conduct was reasonable and might be part of a trial strategy. Id. at 689, 104 S.Ct. 2052. "`Judicial scrutiny of a counsel's performance must be highly deferential' and [...] `every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" Bell v. Cone, 535 U.S. 685, 698, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052; second alteration in original).
If a petitioner "fails to prove either deficiency or prejudice, then [the] ineffective assistance of counsel claims must fail." Lundgren v. Mitchell, 440 F.3d 754, 770 (6th Cir.2006) (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052).
In his Traverse, Drummond concedes that he cannot meet the Strickland standard in several of the sub-claims he raises in the petition. (See ECF No. 57, at 67-68.) Drummond therefore withdrew all sub-claims except trial counsel's failure to request that all sidebar conferences be placed on the record and counsel's failure to object to the improper acts of the trial court and prosecutor. This Court addresses these sub-claims pursuant to Strickland and its progeny.
Drummond contends that counsel were ineffective for failing to request that the trial court record several sidebar conferences during trial.
Rule 22 of the Ohio Rules of Criminal Procedure requires all proceedings to be recorded in all serious offense cases, and Ohio Appellate Rule 9(A) requires, "[i]n all capital cases the trial proceedings shall include a written transcript of the record made during the trial by stenographic means." Ohio App. R. 9(A). When a proceeding has not been preserved, counsel may invoke procedures set forth in Ohio App. R. 9(C) or 9(E) to reconstruct the record. "In the absence of an attempt to
Drummond's counsel were not ineffective for failing to have all sidebar conferences recorded. Drummond fails to set forth any evidence to support a finding that counsel were ineffective simply because they did not request all sidebar conferences be placed on the record. Other than mere assertion, he does not provide this Court with specific information that would support a claim that he was prejudiced by trial counsel's failure to request these recordings. Moreover, during trial counsel Gentile's habeas deposition, he stated that there were no sidebar conferences that he had wanted to be on the record that were not.
Drummond maintains that counsel were constitutionally ineffective for failing to object to the trial judge's inappropriate behavior and to prosecutorial misconduct. The Court addresses the factual underpinnings of these sub-claims in Drummond's sixth and tenth grounds for relief. Because the Court finds they have no merit, it necessarily follows that Drummond cannot establish the prejudice prong of the Strickland test here. See Lundgren, 440 F.3d at 770 (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052). Accordingly, this sub-claim has no merit.
In this ground for relief, Drummond contends that defense counsel were ineffective during the penalty phase of trial for failing to:
Respondent alleges that sub-claim 1, failure to use a qualified gang expert, is procedurally defaulted because Drummond
Drummond first asserts that the Seventh District Court of Appeals addressed this sub-claim on the merits. While that court did, in fact, address the merits of counsel's failure to hire a gang expert, it also held that Drummond should have raised this claim on direct appeal. State v. Drummond, 2006 WL 3849295, at *10 ("although an affidavit of a gang expert is attached, the fact that the state's case revolved around gang motives and the fact that the psychologist used was not a `gang expert' was on the record and thus the failure to use a gang expert could have been raised on direct appeal"). The Sixth Circuit held that "[c]ontrolling precedent in our circuit indicates that plain error review does not constitute a waiver of state procedural default rules." Seymour, 224 F.3d at 557. Thus, the Seventh District's review of the merits of the claim does not waive its finding of res judicata.
Drummond also contends that sub-claim 1 is an inextricable part of his comprehensive ineffective assistance during mitigation claim. This assertion is belied by the fact that Drummond's post-conviction counsel separated this claim from the others in the petition. Although the Seventh District addressed them together in its holding on the merits, that fact alone does not render this sub-claim incapable of separate procedural default review.
In his third argument, Drummond alleges that the Seventh District erred when holding that this sub-claim could have been raised on direct appeal. He contends that any decision regarding whether a gang expert was necessary requires an expert to highlight Dr. Fabian's deficiencies. This information, Drummond asserts, can be developed only through evidence outside the trial record. While this assertion has some merit, the fact that the defense team did not hire a "gang expert"—a fact that Dr. Fabian openly stated during his testimony—was patently clear from the record. Thus, this argument is not well-taken.
Finally, Drummond claims that ineffective assistance of appellate counsel can serve as cause and prejudice to remove the procedural bar. Drummond cannot use ineffective assistance of appellate counsel to excuse the default of this sub-claim because he cannot demonstrate that counsel's actions were unreasonable.
Although finding sub-claim 1 to be procedurally defaulted, in an abundance of caution, the Court will address it on the merits below, along with the other sub-claims that are not defaulted.
In its independent sentence evaluation, the Ohio Supreme Court outlined the testimony Drummond presented during the mitigation hearing:
Drummond, 111 Ohio St.3d at 48-50, 854 N.E.2d 1038.
In addition to the facts as set forth above, the Court highlights some additional areas of Dr. Fabian's mitigation testimony during the penalty phase of the trial.
On direct examination, defense counsel inquired whether Dr. Fabian had assessed youths with gang involvement. Dr. Fabian responded that he had. He indicated that, as part of the evaluation process, he had encountered some juvenile offenders who had gang involvement. He therefore appeared qualified to discuss gang affiliation. When counsel probed further, querying about the environmental factors in a gang atmosphere, Dr. Fabian responded that he was "not a gang expert." (ECF No. 35, Trial Tr., Vol. 18, at 3820). Nevertheless, when asked about the reason for Drummond's gang involvement, Dr. Fabian responded that, despite witnessing violence, Drummond did not suffer from post-traumatic stress disorder. He then made the following statements:
(Id. at 3825.)
Dr. Fabian further testified that Drummond came from an "intact" home in which
Dr. Fabian conceded that he was unprepared to testify. When defense counsel asked him what records he had reviewed to prepare himself, Dr. Fabian responded:
(Id. at 3810.) Thus, without even being asked about how much time he had to conduct his evaluation, Dr. Fabian offered up testimony that it was insufficient.
As noted previously, this Court granted Petitioner's request for an evidentiary hearing with respect to this ground for relief. The hearing was conducted on July 19-20, 2010.
Drummond's habeas counsel set out to show that there was a significant amount of information about Drummond that his trial counsel had simply failed to discover and present to the jury due to a combination of poor pre-trial investigation and the complete failure to hire a "gang expert"— which, it is argued, amounts to ineffective assistance of counsel at the penalty phase of the trial.
Because the defense mitigation theme turned upon Petitioner's gang activity, Drummond argues that it was imperative that trial counsel obtain a strong expert on gangs to show the jury (1) how, between the ages of 13 and 16, Drummond's life and family experience had driven him into a gang; (2) how that gang then filled the void in his life caused by his dysfunctional family; and (3) how the gang's influence led him to commit the crimes for which he had been convicted. Drummond argues that, because his trial counsel failed to interview key family members (e.g., his half-brother Michael Brooks and his parents), his life was grossly misrepresented to the jury, who ultimately heard Dr. Fabian, the defense expert during the penalty phase of the trial, testify that Drummond came from an "intact" family and had, essentially, "made a choice" to run the streets.
At the evidentiary hearing before this Court, habeas counsel called Michael Brooks, who testified that he was incarcerated at the time of Drummond's trial and was never contacted by trial counsel. (ECF No. 96, Hr'g Tr., at 12, 14.) He further explained that Drummond came to live with him when Drummond was 14 years old, after having an altercation with his father. (Id. at 14, 15-16.) Brooks testified that, during the time Drummond was living in his apartment, Brooks was dealing drugs and was rarely home. In fact, he did not actually live in the same apartment with Drummond, leaving the teenager essentially unsupervised. (Id. at 16, 17-18, 20, 33.) It was at this time, according to Brooks, that Drummond became involved with members of the Lincoln
John Drummond Sr., Petitioner's father, testified at the hearing that he never really talked to defense counsel or prepared for his testimony during the penalty phase of the trial. (Id. at 197, 199.) He did recall going to Mr. Gentile's office as a family for a pre-trial meeting, but he claims that no one spoke to him specifically at that time. (Id. at 198-99.)
When asked about his relationship with his former wife, Petitioner's mother, Drummond Sr. indicated that she used drugs and had a drinking problem, that she did not get along that well with her sons and did not encourage their education or care what they did in school. (Id. at 200, 201.) Drummond Sr. became aware that Drummond Jr. was "running the streets" somewhere around the age of 12 or 13. (Id. at 201-02.) He stated that, when he admonished him for getting in trouble at school, his wife informed him that Petitioner was going to go live with his brother. (Id. at 202.) After that happened, Drummond Sr. saw a change in Drummond. Not long after, Drummond told his father that they were no longer family and that the gang was his family; they then drifted apart. (Id. at 202-03.) By then, communication had also broken down between Drummond Sr. and his wife, who had a rocky relationship. They later divorced, after 24 years of marriage, but continued to live together. Drummond Sr. acknowledged that this was hard on their children. (Id. at 203-04.) Drummond Sr. conceded on cross-examination that he would do anything to save his son. (Id. at 210.)
Habeas counsel also called trial counsel James Gentile.
Gentile testified that he knew about Drummond leaving home to live with Brooks. (Id. at 84.) Gentile knew Brooks was incarcerated at the time of Drummond's trial. The defense team discussed Brooks at length but ultimately determined he was not an important witness. (Id. at 82-83.) If he were important, Gentile asserted, "I don't care if he was in California, we would have interviewed him." (Id. at 83.) On cross-examination,
(Id. at 122-23.)
Habeas counsel queried how Gentile came to learn of Dr. Fabian. Gentile responded that Mr. Heimbaugh of the Forensic Center suggested that counsel use Dr. Fabian. (Id. at 92, 95.) On cross-examination, Gentile testified that he decided to utilize Dr. Fabian because he both had a law school degree and had published in the field of death penalty mitigation. Gentile also thought Dr. Fabian would be beneficial to the defense because he had worked with gang members in juvenile court in Cleveland. (Id. at 106-07.) Gentile spoke with Dr. Fabian directly regarding his expertise on gangs, and Dr. Fabian told Gentile that he could testify about gangs generally and make the nexus between an individual's dissatisfaction with his or her personal life and the subsequent decision to join a gang. (Id. at 114.)
Gentile testified that neither Hrdy nor Dr. Fabian ever relayed that they needed more time to prepare for mitigation. (Id. at 125.) Gentile was unaware that Dr. Fabian had contacted the Office of the Ohio Public Defender ("OPD") to allegedly express his concerns regarding whether he had sufficient time to prepare for the mitigation hearing. Gentile stated that neither Dr. Fabian nor the OPD contacted him after the alleged conversation. (Id. at 129-30.) On the contrary, Gentile testified that Dr. Fabian never expressed any concerns regarding the case; in particular, he never told Gentile that he was having any trouble getting information from family members. Gentile stated that expressions of such concerns would have been "red flags," but that he had no recollection of any such concerns in this case. (Id. at 132-33.)
Habeas counsel also called Dr. Fabian, who testified that, after feeling time-pressured, he called the OPD for advice. When the OPD responded that Dr. Fabian should tell counsel he needed more time, Dr. Fabian stated that he relayed this information to counsel. (Id. at 140.) He testified that Gentile responded: "Those people down there in Columbus worry too much, they're appellate lawyers, they worry too much. Don't worry about it." (Id. at 141.) Dr. Fabian asserted that he expressed his concerns regarding insufficient preparation three or four times to defense counsel. (Id. at 164.)
Dr. Fabian indicated that he had evaluated juvenile defendants for competency or disposition who had previously affiliated with gangs. (Id. at 144.) He stated that, aside from this experience, he had no degree or formal training about gangs, that he was not a gang expert, and that he had informed counsel of this fact. (Id.)
Dr. Fabian testified that, during the investigation, he and Hrdy "had difficulties
(Id. at 171.) Thus, Dr. Fabian was clearly apprised of this information in advance of his trial testimony. At a later point in his testimony at the hearing before this Court, Dr. Fabian became confused about his testimony from earlier that day:
(Id. at 176-77.)
Trial counsel Yarwood also testified at this Court's evidentiary hearing. He did not recall either Dr. Fabian or Hrdy requesting more time to prepare for trial. (Id. at 186-87.) Yarwood stated that he was impressed with Dr. Fabian. He recalled that there had been some discussion regarding procuring a gang expert but that, once counsel procured Dr. Fabian, the defense no longer needed a gang expert. (Id. at 187-88.)
On the second day of the evidentiary hearing, habeas counsel called Thomas Hrdy to testify. Hrdy recalled that there was some talk of procuring a gang expert from Case Western Reserve University
Following the testimony of these witnesses, both sides rested, concluding the hearing.
The Supreme Court has expounded on the Strickland standard relative to claims that trial counsel failed to investigate and present mitigating evidence regarding a defendant's background. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). In Wiggins, the Court held that counsel's failure to investigate and present mitigating evidence to the jury was unreasonable. Specifically, the Court held that trial counsel's failure to discover evidence of the petitioner's difficult childhood, after learning that the petitioner's mother was an alcoholic and petitioner was placed in several foster homes, was a Sixth Amendment violation.
The Court in Wiggins cautioned, however, that "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." Id. at 527, 123 S.Ct. 2527. While Strickland established that strategic decisions can be virtually unchallengeable, the Court in Wiggins emphasized that these decisions are not immune from attack if they are founded upon an unreasonable investigation. Id. Finding that the information the petitioner's trial counsel already reviewed triggered a duty to investigate the petitioner's background further, the Court in Wiggins held that trial counsel's actions were objectively unreasonable under Strickland.
To discern whether a petitioner was prejudiced by counsel's actions, a habeas court must determine "whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (internal quotation marks and citations omitted).
The Supreme Court has recently opined further on the Strickland/Wiggins standard in the penalty phase of a capital trial. Bobby v. Van Hook, ___ U.S. ___, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009). Regarding counsel's duty to investigate, the Court in Van Hook held that counsel is not required to interview every possible witness to be constitutionally effective. Although the Sixth Circuit found that information counsel discovered should have prompted a need to interview additional relatives, the Supreme Court rejected this premise. It held: "[T]here comes a point at which evidence from more distant relatives can reasonably be expected to be only cumulative, and the search for it distractive from more important duties." Id. at 19.
Conversely, in Porter v. McCollum, ___ U.S. ___, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009), the Supreme Court reversed the Eleventh Circuit's decision to deny a writ of habeas corpus where counsel failed to investigate and present evidence of Porter's military service in two Korean war battles, as well as evidence of a troubled childhood and brain dysfunction. Because counsel made no attempts to uncover this information even though it was obtainable, the Supreme Court held that the state court had unreasonably concluded that Porter had failed to meet his burden of proving ineffective assistance. Id. at 454-56.
The Sixth Circuit also has weighed in on ineffective assistance of counsel during mitigation. In Clinkscale v. Carter, 375 F.3d 430 (6th Cir.2004), the court explained that the State could not simply assert that Clinkscale's counsel, who had failed to file a timely notice of alibi, had done so as part of a trial strategy. Instead, the court held that, "even if Clinkscale's attorneys subjectively believed that failing to file an alibi notice on time was in some way strategic—which is doubtful— such a `strategy' cannot, under the circumstances presented in this case, be considered objectively `sound' or `reasonable.'" Id. at 443 (citing Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000)) (footnote and further citations omitted). The Sixth Circuit has explained that whether or not counsel's strategic decisions deserve deference is "directly proportional to the adequacy of the investigations supporting such judgments." Jells v. Mitchell, 538 F.3d 478, 492 (6th Cir.2008) (citing Wiggins, 539 U.S. at 521, 123 S.Ct. 2527).
In these sub-claims Drummond asserts that trial counsel Gentile and Yarwood were ineffective for failing to hire a "gang expert," for failing to prepare Dr. Fabian for testimony, and for failing to conduct a complete and timely investigation. The Court groups them together here as each relates to Dr. Fabian's mitigation testimony.
During the evidentiary hearing before this Court, both parties questioned defense counsel regarding their reasons for not hiring a "gang expert." In short, Gentile and Yarwood testified that, based upon Dr. Fabian's representations regarding his credentials and experience, they believed he could testify about crucial mitigating factors as effectively as any "gang expert." Dr. Fabian's testimony, however, directly contradicted defense counsel's. He stated during the evidentiary hearing, "I told them I was not a gang expert. I could testify to my involvement in gangs in my evaluations but, you know, to my knowledge
After observing the demeanor of the witnesses, and reviewing the evidence presented, the Court finds the testimony of trial counsel credible, and finds the testimony of Dr. Fabian suspect. As the Court previously noted, Dr. Fabian struggled to recall his own testimony from earlier that day at the evidentiary hearing, and requested that the transcript be read back to him, suggesting to the Court (and the Court so finds) that he was not being completely truthful in his testimony. Dr. Fabian was not credible when he testified regarding his recollection about what he told Drummond's trial counsel seven years prior regarding his ability to testify about gangs. Instead, the Court finds it quite believable that (as trial counsel indicated) Dr. Fabian would have convincingly represented to Drummond's trial counsel—given his credentials and experience—that he was qualified to present the necessary expert testimony regarding gangs and Drummond's involvement with gangs. Moreover, despite the fact that the Court had a separation of witnesses order in effect during the hearing, defense counsel were both consistent and credible in testifying that Dr. Fabian never expressed concerns about having sufficient time to prepare for his testimony. It is inconceivable that neither of Drummond's trial counsel would recall Dr. Fabian making a request for more time to prepare had such a request been made (which the Court finds it had not), particularly because Gentile stated during the evidentiary hearing that, had Dr. Fabian articulated such a concern, he "wouldn't have gotten [sic] in [the courtroom] if he needed more time. Nobody would have forced me to go in there. I would have appealed to the judge and the judge would have granted it." (Id. at 125.)
In believing the testimony of defense counsel over Dr. Fabian, this Court finds that the decision of trial counsel relative to retaining Dr. Fabian to testify regarding Drummond's involvement in gangs and in not hiring a different "gang expert" was not unreasonable. The Court also finds that trial counsel's decision relative to the investigation, preparation and presentation of mitigation testimony as it relates to Dr. Fabian's testimony was not unreasonable. Specifically, the Court finds that, prior to taking the witness stand, Dr. Fabian never relayed to counsel (or Hrdy) that he needed more time to investigate or that he was unable to testify about gang life and its effects on the individuals who join them. On the contrary, this Court finds that it was reasonable for counsel to rely on Dr. Fabian's self-described experience with gang members and to presume that Dr. Fabian had sufficient time to prepare for his trial testimony absent any credible assertions to the contrary. See, e.g., Campbell v. Coyle, 260 F.3d 531, 551 (6th Cir. 2001) ("an ineffective-assistance-of-counsel claim cannot survive so long as the decisions of a defendant's trial counsel were reasonable, even if mistaken") (citing White v. McAninch, 235 F.3d 988, 995 (6th Cir.2000)). Here, counsel cannot be held responsible for the misrepresentations or omissions of Dr. Fabian. Accordingly, sub-claims 1, 2, and 7 are not well-taken.
In these sub-claims, Drummond argues that counsel were ineffective for failing to investigate and present evidence regarding Drummond's family background, particularly regarding his brother, Michael Brooks. He asserts that, had the jury known that Drummond's gang involvement began when he lived unsupervised by Brooks, it would have understood that Drummond did not come from an "intact" family, as Dr. Fabian testified. Rather, Drummond contends, the jury would have learned that Drummond was left to fend for himself during his early adolescent years.
Once again, the Court finds Dr. Fabian's hearing testimony suspect. Initially, Dr. Fabian testified that he first learned of Brooks's existence on the day of the trial. Later, he stated that he first learned of Brooks during the post-conviction relief proceedings. Respondent's counsel, however, elicited testimony during the hearing that Dr. Fabian actually knew about Brooks well ahead of his trial testimony because he was included in Dr. Fabian's report. Accordingly, Dr. Fabian's trial testimony cannot be attributed to any alleged failure by trial counsel to investigate.
Moreover, defense counsel stated that they knew of Brooks's existence but that, given his criminal record, as well as other considerations, they chose not to interview him or call him to testify. It is clear that counsel's decision not to interview or call Brooks to testify was a strategic one. Counsel chose not to interview Brooks because his incarceration and criminal record left him vulnerable to impeachment. As the Sixth Circuit explained in Jells, 538 F.3d at 493, whether counsel's strategic decisions deserve deference is directly proportional to the adequacy of the investigation that supported those decisions. Thus, this Court must determine the sufficiency of counsel's mitigation investigation.
Defense counsel's investigation was constitutionally sufficient. As Gentile stated during the hearing, he interviewed several family members including Drummond's parents and his sister, who was the next oldest sibling after Brooks. As the Court in Van Hook held, "there comes a point at which evidence from more distant relatives can reasonably be expected to be only cumulative, and the search for it distractive from more important duties." Van Hook, 130 S.Ct. at 19.
Although Brooks was not a distant relative, his criminal record and incarceration made him difficult to interview and an unlikely mitigation witness. It therefore was not unreasonable for counsel to forego interviewing him when, as Gentile stated at the hearing, the family members they interviewed were "cooperative" (ECF No. 96, Hr'g Tr., at 122), and Brooks reasonably could be expected to provide information cumulative of other family members, yielding little benefit for their efforts and distracting them from "more important duties." Because Drummond cannot establish counsel were ineffective for failing to interview and present evidence regarding Brooks and his relationship with Drummond, these sub-claims are not well-taken.
In these sub-claims, Drummond asserts that counsel were ineffective for failing to present evidence regarding his leg amputation and for failing to present evidence regarding Drummond as a parent and to object to the prosecution's statement about his parental financial responsibilities. Neither claim is well-taken.
Drummond's assertion that counsel did not present evidence that Drummond's leg was amputated is belied by a review of the trial testimony. As the Ohio Supreme Court found on direct appeal, Dr. Fabian testified that when Drummond was 16, he was shot, and his leg was amputated. Drummond, 111 Ohio St.3d at 49, 854 N.E.2d 1038. Thus, this sub-claim is factually inaccurate.
The Court addresses the factual underpinnings of sub-claim 6 in a similar sub-claim contained in Drummond's tenth ground for relief discussed below, therein finding it to be without merit. Thus, Drummond cannot prevail on an ineffective assistance claim here because he cannot demonstrate that the prosecutor's alleged improper comments prejudiced the outcome of the penalty phase of trial. See United States v. Hynes, 467 F.3d 951, 970 (6th Cir.2006) ("[w]e need not decide whether defense counsel performed deficiently if disposing of an ineffective-assistance claim on the ground of lack of sufficient prejudice would be easier") (citing Strickland v. Washington, 466 U.S. at 697, 104 S.Ct.2052).
Because this Court believes the testimony of defense counsel and Hrdy over that of Dr. Fabian, it finds that counsel's investigation and presentation during the penalty phase of trial was constitutionally sufficient. Sub-claims 1, 2, 3, 4, and 7 of Drummond's eighth ground for relief are not well-taken. Sub-claims 5 and 6 fail for reasons of factual inaccuracies and inability to demonstrate prejudice, respectively.
Drummond contends that his appellate counsel were ineffective for failing to raise several issues on his direct appeal. Specifically, he contends that counsel should have raised the following issues: (1) defense counsel's failure to object to prosecutorial misconduct that occurred when the prosecutor vouched for the credibility of a witness, to the trial court's improper humor, and to the State's prejudicial comments regarding Drummond's remorse; (2) trial court errors that occurred when the trial court used inappropriate humor, improperly vouched for a State witness with improper humor, failed to sustain defense counsel's objection to a State witness's identification of a courtroom spectator, failed to sustain defense counsel's objection to the State's use of improper evidence of remorse, failed to grant defense motions and objections, and considered lack of remorse as an aggravating circumstance; (3) prosecutorial misconduct that occurred when the prosecutor disparaged Drummond in his opening statement, used victim-impact evidence during trial, referred to Drummond's lack of remorse, asked a State witness to identify a courtroom spectator, bolstered the credibility of a State witness, elicited hearsay testimony, disparaged defense counsel for objecting during the State's rebuttal closing argument, argued facts not in evidence, and failed to provide the Ohio Supreme Court with specific cites to the record to substantiate claims of prosecutorial misconduct; and (4) the cumulative effect of the issues Drummond raised on direct appeal.
Respondent claims that one of Drummond's sub-claims is procedurally defaulted because Drummond failed to raise it in his application to reopen the direct appeal. Specifically, Respondent notes that Drummond did not assert that his appellate counsel was ineffective for not arguing that the trial court committed constitutional error when it allegedly considered lack of remorse as an aggravating circumstance. (ECF No. 49, at 91.) Because Drummond failed to raise this claim at any juncture in his state court proceedings, this claim is unexhausted. Drummond cannot return to state court and raise it now. Thus, that sub-claim is procedurally defaulted and this Court will not address it on the merits.
This Court also need not address the remaining sub-claims because the factual underpinnings of each sub-claim were raised in other grounds for relief in the Amended Petition. Thus, the Court has reviewed and rejected the underlying bases for Drummond's ineffective assistance of appellate counsel claims elsewhere in this Opinion. Because the Court finds no merit to Drummond's sixth, seventh, tenth, and twelfth grounds for relief, Drummond's assertion that counsel were ineffective for failing to raise these issues on direct appeal also is without merit because he cannot show the prejudice he must show to succeed on an ineffective assistance of appellate counsel claim. See Hynes, 467 F.3d at 970 ("Because [petitioner's] claim can be readily resolved on the prejudice prong, we will therefore forego analysis of the deficient-performance prong."). Accordingly, Drummond's ninth ground for relief is not well-taken.
Drummond maintains that prosecutorial comments rendered his trial fundamentally unfair. He asserts that he should be granted relief because the prosecutor:
To assert a successful prosecutorial misconduct claim in a habeas proceeding it "is not enough that the prosecutors' remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)); Durr v. Mitchell, 487 F.3d 423, 439 (6th Cir.2007). This question must be answered in light of the totality of the circumstances in the case. See Lundy v. Campbell, 888 F.2d 467, 474-5 (6th Cir.1989). The prosecutor's comments must be so egregious as to render the trial fundamentally unfair. See Simpson, 238 F.3d at 409.
In assessing a prosecutorial misconduct claim, a habeas court first determines whether the prosecutor's comments were improper. Raedeke v. Trombley, No. 08-1407, 2009 WL 751096, at *6 (6th Cir. Mar. 23, 2009) (quoting Boyle v. Million, 201 F.3d 711, 717 (6th Cir.2000)). Once the court finds improprieties, it must then determine whether the conduct was "flagrant," requiring reversal. See id. at *6-7 (citations omitted). The Sixth Circuit uses "a four-factor test to analyze the flagrancy of alleged instances of prosecutorial misconduct: (1) whether the prosecutor's statements tended to mislead the jury or prejudice the accused; (2) whether the misconduct was isolated or extensive; (3) whether the misconduct was deliberate; and (4) the total strength of the evidence against the accused." Id. at *6 (quoting Donnelly, 416 U.S. at 643, 94 S.Ct. 1868). Guided by this standard, the Court turns to Drummond's individual sub-claims for relief.
In the Traverse, Drummond withdrew the above sub-claims, conceding that they did not warrant habeas relief. This Court therefore will not review them.
Drummond maintains that the prosecution improperly asked its own witnesses numerous leading questions. He raised this issue on direct appeal to the Ohio Supreme Court, but that court observed that Drummond did not provide "examples of misconduct or record references showing when the misconduct occurred" for any of the prosecutorial misconduct claims he asserted. Drummond, 111 Ohio St.3d at 45, 854 N.E.2d 1038. Additionally, Drummond's counsel failed to object to the leading questions. Accordingly, this sub-claim should be procedurally defaulted under Ohio's plain error rule.
This sub-claim lacks merit in any event. In its opinion denying Drummond relief, the Ohio Supreme Court held that none of the questions that were leading resulted in plain error. A review of the citations to the record that Drummond cites reveals that the prosecution used leading questions merely to assist in the expeditious development of a witness's testimony. For example, the Ohio Supreme Court reasoned that the prosecution's use of leading questions regarding the date Morris entered the Mahoning County Jail was for purposes of "orient[ing] the witness to the time and moved the trial forward without unnecessary delay." Id. at 35, 854 N.E.2d 1038. This Court finds that there is nothing unreasonable in the Ohio Supreme Court's decision as it has, upon review of the record, come to the identical conclusion.
Drummond asserts that the prosecutor improperly told the jury that "we were so rudely interrupted" after defense counsel objected during the State's closing argument. This sub-claim was not raised with specificity on direct appeal to the Ohio Supreme Court and is therefore procedurally defaulted.
Even if ripe for habeas review, this Court would not find this sub-claim to be well-taken. While the comment regarding defense counsel's objection may not have been a model for prosecutorial behavior, it hardly "infected the trial with unfairness [so] as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 181, 106 S.Ct. 2464 (internal quotation omitted). Because it was an isolated comment that did not mislead the jury about pertinent information, this sub-claim lacks merit. See, e.g., Durr, 487 F.3d at 442 (isolated remark did not rise to level of prosecutorial misconduct).
Drummond maintains that the prosecutor mischaracterized Rozenblad's testimony by stating that he heard Drummond talking at a party and stating "some guys," rather than one "guy" had moved from the South Side into Drummond's neighborhood. (ECF No. 35, Trial Tr., Vol. 13, at 2897.) Drummond did not raise this sub-claim with specificity on direct appeal to the Ohio Supreme Court and that court did not address it on the merits. Thus, the sub-claim is procedurally defaulted.
This sub-claim also lacks merit. The prosecutor apparently misspoke on that occasion. Because of the infrequency of the remark as well as its relative insignificance, this Court finds this sub-claim is without merit.
Drummond objects to the prosecutor's references to his lack of remorse. During the testimony of Chauncey Walker, the prosecutor asked Walker if Drummond had ever expressed remorse over the death of Dent Jr. Walker responded, "He probably [sic] sorry that he in the situation that he in. I don't know about being sorry about somebody getting hurt in this situation." (Id., Vol. 15, at 3198.) The prosecutor also commented during penalty phase closing arguments that Drummond expressed "no remorse" over the baby's
In any event, neither of these remarks constitutes prosecutorial misconduct. Walker's response to the prosecutor's question clearly indicated that he did not know whether Drummond felt remorse about Dent Jr.'s death. The prosecutor's remark during closing argument, when placed in context, also was not improper. During Drummond's unsworn statement, he apologized to the Dent family for their loss but denied killing Dent Jr. During the State's rebuttal closing argument, the prosecutor suggested that by denying responsibility for Dent Jr.'s death, Drummond did not truly demonstrate remorse for it. Neither of these statements appear to be improper, let alone flagrant. Even under the flagrancy test, when taken in context of the entire trial record, both statements are insignificant and, because they were isolated, did not mislead the jury. This sub-claim lacks merit.
Drummond argues that because the prosecutor stated during closing arguments that Drummond did not pay child support for his children, a fact not proven during the trial, that he is entitled to habeas relief. Drummond did not support this allegation when he raised it to the Ohio Supreme Court and that court therefore did not address it on the merits. Thus, this sub-claim is procedurally defaulted.
Nonetheless, this sub-claim also lacks merit. While it is true that the prosecutor's comment during closing argument that the mother of Drummond's children, "had to get an order for child support," because Drummond, "doesn't pay," was an improper comment because no evidence adduced during trial established that allegation (Id., Vol. 18, at 3893-94), the trial court clearly explained to the jury that this was not evidence it could consider in its deliberations. Id. at 3921 ("[A]rguments of counsel are designed to assist you, but they are not evidence."). Thus, the jury presumably did not consider whether Drummond paid child support in its penalty phase deliberations. Moreover, the comment was an isolated one and, given the totality of evidence presented during the penalty phase of trial, the comment does not undermine the Court's confidence in the outcome of that proceeding.
In this sub-claim Drummond maintains that the State introduced victim-impact evidence when the prosecutor asked Dent Sr. whether it was difficult being put on hold by the 911 operator after calling to obtain assistance for Dent Jr. Because Drummond did not raise this sub-claim with specificity on direct appeal to the Ohio Supreme Court, it is procedurally defaulted.
The sub-claim lacks merit in any event. During this colloquy, the prosecutor asked Dent Sr. about the 911 call immediately after it was played for the jury. He queried, "911 had you on hold for quite some time. How difficult was that?" Dent Sr. responded, "Very difficult. It was taking too long." (Id., Vol. 12, at 2527.) Drummond incorrectly contends that this exchange constituted victim-impact evidence. Dent Sr. was a witness to the events that occurred and the prosecutor was merely inquiring about the events of the shooting as Dent Sr. observed them. The fact that the prosecutor asked one question regarding how Dent Sr. felt at the moment he
In Drummond's final prosecutorial misconduct sub-claim, he asserts that the State vouched for one of its witnesses. During the testimony of Detective Sergeant Pat Kelly of the Youngstown Police Department, the prosecutor queried whether Kelly could have solved the case without the assistance of Chauncey Walker. Kelly responded, "No." (Id., Vol. 12, at 3260.) Drummond claims this statement constitutes the State's improper vouching for one of its witnesses. As with the above claims, Drummond did not raise this sub-claim with specificity on direct appeal and the Ohio Supreme Court did not address it. Thus, it is procedurally defaulted. Even if ripe for habeas review, this sub-claim would not be well-taken. The Sixth Circuit held in United States v. Trujillo, 376 F.3d 593 (6th Cir.2004), that:
Id. at 607-08 (quoting United States v. Martinez, 253 F.3d 251, 253-54 (6th Cir. 2001); further citations omitted; alterations in original). Here, the prosecutor did not personally bolster the credibility of Walker's testimony. Rather, he inquired whether Kelly believed Walker's testimony was valuable. The prosecutor therefore did not improperly vouch for a State witness.
Drummond contends that the Ohio Supreme Court did not conduct an adequate proportionality review of his case. Specifically, Drummond claims that the Ohio courts improperly excluded cases in their review in which the State sought the death penalty but did not obtain it. Drummond raised this claim on direct appeal and the Ohio Supreme Court addressed it on the merits. It is therefore preserved for federal habeas review.
A proportionality review is not constitutionally required. Pulley v. Harris, 465 U.S. 37, 50-51, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); see also McQueen v. Scroggy, 99 F.3d 1302, 1333-34 (6th Cir. 1996) ("There is no federal constitutional requirement that a state appellate court conduct a comparative proportionality review."), overruled on other grounds by, In re Abdur'Rahman, 392 F.3d 174 (6th Cir. 2004). By statute, however, Ohio requires the appellate courts to engage in a proportionality review. Ohio Revised Code § 2929.05(A) states:
Ohio Rev.Code § 2929.05(A).
Because Ohio law requires appellate courts to engage in a proportionality review, the review must be consistent with constitutional requirements. Kordenbrock v. Scroggy, 680 F.Supp. 867, 899 (E.D.Ky. 1988) (citing Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)), rev'd on other grounds, 919 F.2d 1091 (6th Cir. 1990). Nonetheless, when the state courts have engaged in a proportionality review, the federal habeas court's review is limited. The habeas court is to examine the state's proportionality review only to determine whether the imposition of death on the petitioner is patently unjust or "shocks the conscience." The court is not to second-guess the state court's comparison of other cases in which the death penalty was imposed." Id. (citing Moore v. Balkcom, 716 F.2d 1511, 1517 (11th Cir. 1983)); see also Spinkellink v. Wain-wright, 578 F.2d 582, 604 (5th Cir.1978) (same).
Moore, 716 F.2d at 1517-18 (citing Spinkellink, 578 F.2d at 602, 604). The court in Spinkellink "condemned a federal case by case analysis of the cases used by the state appellate court in its proportionality review as an unnecessary intrusion on the Florida [state] judicial system." Moore, 716 F.2d at 1518 (citing Spinkellink, 578 F.2d at 604). As the Eleventh Circuit held in reversing a district court's case-by-case proportionality review of the Georgia Supreme Court:
Moore, 716 F.2d at 1518. Moreover, when examining an Ohio capital conviction on habeas review, the Sixth Circuit has stated that, because "proportionality review is not required by the Constitution, states have great latitude in defining the pool of cases used for comparison." Buell, 274 F.3d at 369.
The Ohio Supreme Court's review of Drummond's sentence comports with constitutional requirements. It held:
Drummond, 111 Ohio St.3d at 51, 854 N.E.2d 1038.
This proportionality review does not "shock the conscience." The Ohio Supreme Court compared Drummond's case with cases in which the defendant killed a child and with other course-of-conduct murders. This Court can provide no further review.
Drummond asserts that the cumulative effect of the errors from his state court proceedings entitles him to habeas relief. Drummond raised this claim for the first time in his Murnahan appeal, and thus it was raised under a different theory (ineffective assistance of appellate counsel for failing to raise a cumulative error claim) than he raises it here. It is therefore procedurally defaulted. See Lorraine v. Coyle, 291 F.3d 416, 425 (6th Cir.2002).
Regardless of its defaulted status, this claim lacks merit. The Sixth Circuit acknowledged in Williams v. Anderson, 460 F.3d 789 (6th Cir.2006), that "the law of this Circuit is that cumulative error claims are not cognizable on habeas because the Supreme Court has not spoken on this issue." Id. at 816 (citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir.2005)); see also Gillard v. Mitchell, 445 F.3d 883, 898 (6th Cir.2006) (holding that while errors might accumulate to produce unfair trial setting, the Supreme Court has never held distinct claims can accumulate to grant habeas relief) (citations omitted); Lorraine, 291 F.3d at 447, amended on other grounds, 307 F.3d 459 (6th Cir.2002) (same). Accordingly, this claim lacks merit.
Drummond's final ground for relief is aimed at the structure of Ohio's capital punishment scheme. He asserts Ohio's capital punishment scheme is unconstitutional on its face. The Court addresses each sub-claim, but is not persuaded by any of Drummond's allegations. In summary fashion, and regardless of their defaulted status, the Court lists below these allegations, in italics, and thereafter states the reasons they are unpersuasive.
The Court now must determine whether to grant a Certificate of Appealability ("COA") for any of Drummond's claims. The Sixth Circuit Court of Appeals has determined that neither a blanket grant nor a blanket denial of a COA is an appropriate means by which to conclude a capital habeas case as it "undermine[s] the gate keeping function of certificates of appealability, which ideally should separate the constitutional claims that merit the close attention of counsel and this court from those claims that have little or no viability." Porterfield v. Bell, 258 F.3d 484, 487 (6th Cir.2001); see also Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir.2001) (remanding motion for certificate of appealability for district court's analysis of claims). Thus, in concluding this Opinion, the Court now must consider whether to grant a COA as to any of the claims Drummond presented in his Petition pursuant to 28 U.S.C. § 2253.
That statute states in relevant part:
28 U.S.C. § 2253. This language is identical to the requirements set forth in the pre-AEDPA statutes, requiring the habeas petitioner to obtain a Certificate of Probable Cause. The sole difference between the pre-and post-AEDPA statutes is that the petitioner must now demonstrate he was denied a constitutional right, rather than the federal right that was required prior to AEDPA's enactment.
The Supreme Court interpreted the significance of the revision between the pre-and post-AEDPA versions of that statute in Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In that case, the Court held that § 2253 was a codification of the standard it set forth in Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), but for the substitution of the word "constitutional" for "federal" in the statute. Slack, 529 U.S. at 483, 120 S.Ct. 1595. Thus, the Court determined
Id. at 483-84, 120 S.Ct. 1595 (quoting Barefoot, 463 U.S. at 893 n. 4, 103 S.Ct. 3383).
The Court went on to distinguish the analysis a habeas court must perform depending upon its finding concerning the defaulted status of the claim. If the claim is not procedurally defaulted, then a habeas court need only determine whether reasonable jurists would find the district court's decision "debatable or wrong." Id. at 484, 120 S.Ct. 1595. A more complicated analysis is required, however, when assessing whether to grant a COA for a claim the district court has determined is procedurally defaulted. In those instances, the Court opined, a COA should only issue if "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. (emphasis supplied).
After taking the above standard into consideration, and for the reason indicated, the Court shall issue a COA pursuant to 28 U.S.C. § 2253(c) and Fed. R.App. P. 22(b), and shall certify that an appeal could be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3), on the following ground:
The Court shall not issue a COA on the following grounds:
The Court finds, with respect to the grounds raised by Drummond in his amended petition for writ of habeas corpus, that all but one part of Ground One are not well-taken-on the merits, or because of procedural default, or both.
The Court finds meritorious that portion of Ground One that asserts a denial of Drummond's Sixth Amendment right to a public trial because of the partial closure of his trial on February 4, 2004 and, on that basis, the amended petition for writ of habeas corpus in
Accordingly, the Court issues a writ of habeas corpus as follows: The Respondent shall either (1) set aside Drummond's convictions for aggravated murder of Jiyen Dent, Jr. and the sentence of death attendant thereto; or (2) conduct another trial. The Respondent shall retry Drummond, or set aside the convictions and sentence for aggravated murder within 180 days from the effective date of this Order.
On this Court's own motion, execution of this Order and, hence, its effective date, is stayed pending appeal by the parties.
Supreme Ct. Prac. R. XI(6). Because capital defendants whose crimes were committed after January 1, 1995, appeal their conviction and sentence directly to the Ohio Supreme Court, rather than to an intermediate Ohio appellate court, this Rule was meant to provide such defendants a forum in which to assert ineffective assistance of appellate counsel.
Here, the trial court allowed venire members Martina Frost-Kim and Madeline Kerr to serve on Drummond's jury. Frost-Kim, Drummond alleges, equivocated when asked whether she would hold Drummond's decision not to testify against him. While Frost-Kim did equivocate somewhat, she also recognized that she would "have to take it as though [Drummond] was presumed innocent." (ECF No. 35, Trial Tr., Vol. 9, at 1785.) Drummond also takes issue with Kerr's initial reservations about her willingness to weigh mitigating factors. The trial court noted on the record, however, that venire member Kerr agreed to follow the law but merely became confused when both parties read the statutory mitigating factors to her. (Id., Vol. 4, at 725.) Finally, venire member Beene stated throughout his voir dire that he was uncomfortable imposing a death sentence. (Id., Vol. 8, at 1517; 1525; 1526; 1528; 1534.) The trial court therefore did not abuse its discretion in excusing him.
Although Caperton is instructive because it provides the Court with the most recent standard of review, the factual dissimilarities between Caperton and the instant case negate its applicability here. Instead, the Court finds that Gillard v. Mitchell, 445 F.3d 883 (6th Cir.2006), offers the Court greater guidance. In that case, the petitioner asserted that the trial court was biased and partial because it had presided over an ex parte hearing during which the court heard testimony regarding the petitioner's background. Id. at 892. It observed that the Supreme Court of Ohio had held that, while the trial court erred in refusing to recuse itself, the error was harmless because of the overwhelming evidence of the petitioner's guilt. Id. at 893. Citing a previous case in which it had utilized the harmless error standard of review to adjudicate a judicial bias claim, the court in Gillard accepted the Ohio Supreme Court's findings. Id. (citing Esparza v. Mitchell, 310 F.3d 414, 424 (6th Cir.2002), rev'd on other grounds, 540 U.S. 12, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003)). Additionally, the court noted that the petitioner could not demonstrate the trial court's actual bias. Id. It therefore found the petitioner's claim had no merit.
Drummond alleges here that the trial court was biased and erred in several respects, as noted above. None of these assertions, however, would withstand a harmless error review. First, the fact that the trial court presided over both Drummond's and Gilliam's trial does not constitute unconstitutional bias. Although Drummond contends that the trial court made disparaging comments about Gilliam, he cannot demonstrate that this led to any actual bias against Drummond. Moreover, the trial court's failure to record sidebar conferences and alleged inappropriate comments, if erroneous, are harmless given the evidence the State presented of Drummond's guilt. Drummond's complaints that the trial court did not rule on the defense's objections during the State's closing argument, that he was denied a request for new counsel after the trial court spoke with Drummond, denied his motion for a change of venue, and overruled counsel's objections regarding prosecutorial misconduct do not constitute evidence of bias or error, but are merely instances in which the trial court ruled against Drummond.
Q: Now, throughout the trial transcript there's a lot of areas where sidebars are put into the record. Can you explain why those aren't recorded?
A: Well, sometimes the Judge, you know, takes a hands-off approach on that. Sometimes, I mean, I know the seminars say that "Every side bar should be recorded." But sometimes you just can't control that with the judge.
Q: Was there any sidebars that you're aware of that you wanted on the record that you didn't get on the record?
A: No.
(ECF No. 55-1, Gentile Dep., at 35-36.)
