Buell v. Mitchell

• Citation: 274 F.3d 337
• Decision Date: 30 January 2001
• Docket Number: No. 99-4271,99-4271
• Parties: (6th Cir. 2001) Robert A. Buell, Petitioner-Appellant, v. Betty Mitchell, Warden, Respondent-Appellee. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 337

274 F.3d 337 (6th Cir. 2001)

Robert A. Buell, Petitioner-Appellant, v. Betty Mitchell, Warden, Respondent-Appellee.

No. 99-4271

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: January 30, 2001

Decided and Filed: December 4, 2001

Appeal from the United States District Court for the Northern District of Ohio at Cleveland., No. 95-02415--Paul R. Matia, Chief District Judge. [Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Jeffry F. Kelleher, JEFFRY F. KELLEHER & ASSOCIATES, Cleveland, Ohio, Patricia A. Millhoff, Akron, Ohio, for Appellant.

Jon W. Oebker, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Cleveland, Ohio, for Appellee. Stuart A. Cole, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellee.

Before: BOGGS, SILER, and DAUGHTREY, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which SILER, J., joined. DAUGHTREY, J. (p. 59), delivered a separate opinion concurring in the judgment.

OPINION

BOGGS, Circuit Judge.

Petitioner-appellant Robert A. Buell appeals the judgment of the district court denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. For the following reasons, we affirm.

I

Buell's habeas petition relates to his 1984 conviction and death sentence for the sexual assault and murder of eleven-year-old Krista Lee Harrison. On Saturday, July 17, 1982, Krista and a schoolmate were collecting aluminum cans in a ballpark across the street from Krista's home in Marshallville, Ohio. Krista was kidnapped from the park that day. Six days later, Krista was found dead in a remote area of Holmes County, Ohio. An autopsy revealed that she had been sexually assaulted by the thrusting of a rigid object against the inlet of her vagina and then strangled to death. The remainder of the factual findings of the Ohio Supreme Court related to this case can be found in State v. Buell, 489 N.E.2d 795, 798-99 (Ohio 1986).

II

Buell was indicted on November 15, 1983. He received a jury trial. On April 4, 1984, the jury found Buell guilty of aggravated murder and the specification charging Buell as the principal offender who committed the murder of Krista Lee Harrison while kidnapping or fleeing immediately after kidnapping her. The trial court agreed with the jury's recommendation that a death sentence be imposed and on April 11, 1984, the trial court sentenced Buell to death. Buell subsequently appealed to the Ohio Court of Appeals and the Ohio Supreme Court. Both appeals were denied. On October 19, 1987, Buell filed a post-conviction petition in the Ohio trial court, which was denied. The petition was appealed to the Ohio Court of Appeals and the Ohio Supreme Court, both of which denied the petition.

On September 16, 1992, Buell filed a habeas petition in federal district court. The district court granted a stay of execution to allow the Ohio Court of Appeals to consider Buell's Application for Delayed Reconsideration relating to Buell's claim of ineffective assistance of appellate counsel. This claim was denied by the Court of Appeals and the Ohio Supreme Court.

On April 1, 1996, Buell filed a second habeas petition in federal district court, raising thirty-three grounds for relief. The petition was denied on July 22, 1999.

III

A

This court reviews the district court's judgment de novo. See Rickman v. Bell, 131 F.3d 1150, 1153 (6th Cir. 1997); Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir. 1989). The district court's factual findings are reviewed for clear error. See Rickman, 131 F.3d at 1153; McCall v. Dutton, 863 F.2d 454, 459 (6th Cir. 1988). State court determinations of fact are entitled to a presumption of correctness unless the petitioner can demonstrate by convincing evidence that the facts are erroneous on one of the eight bases listed in 28 U.S.C. 2254(d). See McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996).

The recent amendments to the habeas statutes enacted by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) do not apply to this case because Buell filed his petition for a writ of habeas corpus before the effective date of AEDPA. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337 (1997). Therefore, Buell "is entitled to have the federal habeas court make its own independent determination of his federal claim, without being bound by the determination on the merits of that claim reached in the state proceedings." Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Buell may not, however, raise "contentions of federal law which are not resolved on the merits in the state proceedings due to petitioner's failure to raise them there as required by state procedure." Ibid.

B

Buell raises ten claims on appeal: (1) the district judge reviewing Buell's second habeas petition erred in not recusing himself from the case; (2) the district court erred in ruling that certain of Buell's claims were procedurally defaulted; (3) Buell's constitutional right to due process was violated by the trial court's penalty-phase jury instructions; (4) Buell's constitutional rights were denied by the trial court's refusal to permit a psychologist's testimony relating to the credibility of certain witnesses' identification testimony; (5) Buell was deprived of the effective assistance of trial and appellate counsel; (6) Buell was deprived of his right to confront the witnesses against him by the prosecution's withholding of exculpatory evidence; (7) Buell was deprived of his right to be present at all critical stages of his trial; (8) Buell was denied his constitutional right to a fair trial as a result of prosecutorial misconduct; (9) Buell was denied his constitutional right to due process as a result of errors in the trial court's guilt-phase jury instructions; and (10) the Ohio death penalty statute is unconstitutional and violates international law. We will address each of these issues in turn.

1. Refusal of District Judge to Recuse Himself

Buell argues that the district court judge reviewing his habeas petition, Judge Paul R. Matia, erred in not recusing himself after Buell filed a motion to disqualify pursuant to 28 U.S.C. 455(a). In his motion, Buell asserted that Judge Matia had a duty to recuse himself because (1) as a member of the Ohio State Senate in 1981, he had sponsored the bill restoring Ohio's death penalty and (2) he had expressed support for the death penalty while campaigning for Lieutenant Governor of Ohio in 1982. This claim has not been defaulted and has been properly preserved for appellate review.

This court reviews a district court's refusal to grant a motion for recusal for abuse of discretion. See Easley v. Univ. of Mich. Bd. of Regents, 906 F.2d 1143, 1146 (6th Cir. 1990). This court has stated that a district judge must recuse himself where "a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." United States v. Nelson, 922 F.2d 311, 319 (6th Cir. 1990). Buell provides no caselaw to support his proposition that Judge Matia should have disqualified himself for having sponsored the legislation restoring the death penalty to Ohio or for his statements while campaigning for Lieutenant Governor of Ohio. There is no allegation claiming, nor evidence in the record indicating, that Judge Matia made any statements relating in any way to Buell or Buell's prosecution. Indeed, the activities upon which Buell's motion is predicated all occurred prior to Buell's indictment and conviction.

It is well established that a judge's expressed intention to uphold the law, or to impose severe punishment within the limits of the law upon those found guilty of a particular offense, will not ordinarily satisfy the requirements of disqualification under Section 455(a). See United States v. Gigax, 605 F.2d 507, 514 (10th Cir. 1979); United States v. Haldeman, 559 F.2d 31, 134 n.302 (D.C. Cir. 1976) (citing Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir. 1956)). Judge Matia's actions and statements regarding the death penalty are not enough to demonstrate that he should have recused himself.

More generally, this court has indicated that a judge is not automatically disqualified from a case on the basis of having sponsored or voted upon a law in the state legislature that he is later called upon to review as a judge. See Leaman v. Ohio Dept. of Mental Retardation, 825 F.2d 946, 949-50 & n.1 (6th Cir. 1987).¹ This court has stated that sponsorship of a law is similar to the expression of an opinion on a legal issue, which does not create the appearance of impropriety. See id. at 949 n.1. Furthermore, in ruling on an ineffective assistance of counsel claim predicated on the assertion that a capital defendant's lawyer should have told him that his state court sentencing judge had previously voted for a statute permitting the death penalty while a South Carolina state senator, the Fourth Circuit stated that, "[o]ne who has voted as a legislator in favor of a statute permitting the death penalty in a proper case cannot thereafter be presumed disqualified to hear capital cases as a judge or predisposed to give a death sentence in any particular case." Shaw v. Martin, 733 F.2d 304, 316 (4th Cir. 1984).

Other courts have explicitly held that judges are not disqualified from hearing cases involving legislation they had voted upon or drafted before serving on the bench. See Newburyport Redevelopment Auth. v. Commonwealth, 401 N.E.2d 118, 144 (Mass. App. Ct. 1980) (rejecting contention that judge should have recused himself since he was a member of Massachusetts legislature when bill that was subject of litigation was enacted); Williams v. Mayor & Council of the City of Athens, 177 S.E.2d 581, 581 (Ga. Ct. App. 1970) (trial judge not required to recuse himself where, while previously serving as city attorney, he drafted ordinance banning possession...