264 F.3d 663 (6th Cir. 2001), 98-4330, Greer v Mitchell

Docket Nº:98-4330
Citation:264 F.3d 663
Party Name:Paul W. Greer, Petitioner-Appellant, v. Betty Mitchell, Warden, Respondent-Appellee.
Case Date:September 04, 2001
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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264 F.3d 663 (6th Cir. 2001)

Paul W. Greer, Petitioner-Appellant,


Betty Mitchell, Warden, Respondent-Appellee.

No. 98-4330

United States Court of Appeals, Sixth Circuit

September 4, 2001

Argued: October 23, 2000

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 96-00796, John M. Manos, District Judge.

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Roger M. Synenberg, SYNENBERG & MAREIN, Cleveland, Ohio, Michael J. Benza, Cleveland, Ohio, for Appellant.

Michael L. Collyer, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Cleveland, Ohio, for Appellee.

Before: KENNEDY, NORRIS, and MOORE, Circuit Judges.


ALAN E. NORRIS, Circuit Judge.

Paul W. Greer appeals from the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. After careful consideration of the numerous issues raised by petitioner, we affirm the orders of the district court denying relief with one exception. Petitioner contends that appellate counsel rendered constitutionally ineffective assistance in presenting his direct appeals to the Ohio courts. Because the record has not been sufficiently developed for us to make a final determination concerning the merits of this claim, we shall remand to the district court with instructions that it conduct an evidentiary hearing on this one issue.


The facts that gave rise to this case can be summarized briefly by quoting, as did the district court, the synopsis preceding the opinion of the Ohio Supreme Court:

On Tuesday afternoon, January 29, 1985, the body of Louis A. Roth was discovered on his kitchen floor. It was determined that he had been stabbed or otherwise wounded twenty-two times, several of which stab wounds punctured the left lung and right ventricle of the heart. The time of death was established as approximately between 11:00 p.m. Sunday night and 1:00 a.m. Monday morning. There was no sign of any struggle and it was apparent that Roth

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had been stabbed while he sat at his kitchen table. Roth's home had been thoroughly searched. Bloodstains were also found throughout the home.

Police officers began to question Roth's neighbors, including appellant, Paul W. Greer. Eventually their canvassing efforts led back to appellant. This was because a neighbor had observed two cuts on appellant's fingers on Monday afternoon. Since the murder had been committed by means of a knife, investigators began to question appellant more closely concerning his wounds and his relationship to the victim. It was established that Roth had rented a home to appellant, who was unemployed, and allowed him to make repairs in lieu of paying rent. Also, Roth had, during the time of appellant's tenancy, provided, inter alia, food, money and a hot plate for appellant and his girlfriend. It was established that Roth was contemplating eviction of appellant. After hearing about cuts on appellant's fingers, police requested appellant to accompany them to the police station, which he did.

Police, with the permission of appellant's girlfriend, performed a search of the couple's residence. Therein police discovered various articles of bloody clothing and a wristwatch belonging to the victim. Eventually appellant confessed to having gone through the victim's home in search of valuables, but he insisted that he had not done so until Monday morning when Roth was already dead. Neighbors established that appellant had gone to see Roth at approximately 10:00 p.m. the night of the murder.

On February 6, 1985, appellant was indicted on the following charges: one count of aggravated murder in violation of R.C. 2903.01(A); one count of aggravated murder in violation of R.C. 2903.01(B), and one count of aggravated robbery in violation of R.C. 2911.01(A)(1). The state included an aggravated robbery specification to the second murder charge pursuant to R.C. 2929.04(A)(7), thus seeking the death penalty for the crime. Appellant pled not guilty and gave notice of his alibi defense. Following a trial on the merits, appellant was convicted of all counts, including the specification on the second count. At the sentencing phase, appellant presented evidence in mitigation. The jury thereupon recommended that a sentence of death be imposed. The trial court then sentenced appellant to death. By its opinion dated March 4, 1987, wherein it conducted its independent analysis and review, the court of appeals affirmed both the trial court's judgment of conviction and the sentence of death.

State v. Greer, 39 Ohio St. 3d 236, 236-37; 530 N.E.2d 382, 387-88 (Ohio 1988).

Represented by new counsel, petitioner appealed to Ohio's Ninth District Court of Appeals, raising twenty-four assignments of error. On March 4, 1987, the Court of Appeals upheld petitioner's conviction and sentence. State v. Greer, No. 12258, 1987 WL 7769 (Ohio Ct. App. Mar. 4, 1987). The Ohio Supreme Court affirmed. State v. Greer, 39 Ohio St. 3d 236; 530 N.E.2d 382 (Ohio 1988), reh'g denied, 40 Ohio St. 3d 711, 534 N.E.2d 851 (Ohio 1988), cert. denied, 490 U.S. 1028 (1989).

On November 15, 1989, petitioner filed a petition for post-conviction relief pursuant to Ohio Rev. Code § 2953.21. The trial court denied the petition in a one-page journal entry based upon the doctrine of res judicata. Journal Entry, June 22, 1990 (J.A. at 2408). The Court of Appeals reversed and remanded, however, in order to afford the trial court the opportunity to

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issue a more detailed opinion. State v. Greer, No. 14696, 1991 WL 21548 (Ohio Ct. App. Feb. 20, 1991). The Ohio Supreme Court subsequently declined to accept jurisdiction. State v. Greer, 61 Ohio St. 3d 1422, 574 N.E.2d 1093 (Ohio 1991) (unpublished table decision).

On June 11, 1991, the court of common pleas complied with the directive of the Court of Appeals, once again denying relief on all grounds largely based upon its finding of res judicata. Findings and Order, June 11, 1991 (J.A. at 2939). The Court of Appeals affirmed. State v. Greer, No. 15217, 1992 WL 316350 (Ohio Ct. App. Oct 28, 1992). The Ohio Supreme Court declined to accept jurisdiction. State v. Greer, 66 Ohio St. 3d 1446, 609 N.E.2d 172 (Ohio 1993) (unpublished table decision).

Petitioner then filed an application for delayed consideration pursuant to State v. Murnahan, 63 Ohio St. 3d 60, 584 N.E.2d 1204 (Ohio 1992), which alleged, inter alia, that appellate counsel had rendered ineffective assistance by failing to raise thirty-four assignments of error on direct appeal. The Court of Appeals denied the application, concluding that petitioner had failed to meet the high standard required by Strickland v. Washington, 466 U.S. 668, 687 (1984), for claims of ineffective assistance. State v. Greer, No. 12258 (Ohio Ct. App. Feb. 5, 1993) (unreported), Journal Entry (J.A. at 3802). The Ohio Supreme Court affirmed. State v. Greer, 67 Ohio St. 3d 1485, 621 N.E.2d 407 (Ohio 1993) (unpublished table decision), and the United States Supreme Court denied certiorari. Montgomery v. Ohio, 511 U.S. 1078 (1994).

After exhausting his state-court avenues of redress, petitioner initiated the habeas corpus proceeding now before us on December 2, 1996, raising twenty-eight grounds for relief. The district court denied the petition on August 7, 1998 and thereafter denied a motion to alter or amend the judgment.


A. Standard of Review

This court reviews a district court's legal conclusions in a habeas proceeding de novo and its factual findings for clear error. See Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir. 1999). Because petitioner filed his habeas petition on December 2, 1996, review of the state court's decision is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997). As amended, 28 U.S.C. § 2254(d) provides as follows:

(d)An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court unless the adjudication of the claim --

(1)resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2)resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). In Williams v. Taylor, 529 U.S. 362 (2000), the Court explained the effect of this section in these terms:

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In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under §2254(d)(1), the writ may issue only if one of the following two conditions is satisfied -- the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2)"involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a...

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