313 F.3d 948 (6th Cir. 2002), 01-3737, Ritchie v. Rogers

Docket Nº:01-3737.
Citation:313 F.3d 948
Party Name:Therressa Jolynn RITCHIE, Petitioner-Appellant, v. Shirley ROGERS, Warden, Respondent-Appellee.
Case Date:December 18, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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313 F.3d 948 (6th Cir. 2002)

Therressa Jolynn RITCHIE, Petitioner-Appellant,


Shirley ROGERS, Warden, Respondent-Appellee.

No. 01-3737.

United States Court of Appeals, Sixth Circuit

December 18, 2002

Argued: Sept. 20, 2002

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 21, 2003.

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David H. Bodiker (briefed), Theresa G. Haire (argued and briefed), Public Defender's Office, Ohio Public Defender Commission, Columbus, OH, for Petitioner-Appellant.

M. Scott Criss (argued and briefed), Office of the Attorney General, Corrections Litigation Section, Columbus, OH, for Respondent-Appellee.

Before: KENNEDY and MOORE, Circuit Judges; DOWD, Senior District Judge. [*]


DOWD, Senior District Judge.


This is an appeal from the denial of petitioner's action under 28 U.S.C. § 2254 seeking habeas relief from her Ohio state conviction in Montgomery County Common Pleas Court for the murder of her 4-year-old daughter. On July 18, 1995, petitioner made a 911 call to report her daughter missing. The report set off a massive search by many volunteers in the Dayton community where petitioner and her daughter lived. Several days later, on July 22, 1995, search dogs discovered the missing daughter's body in a pool of water in a nearby foundry. Intense publicity accompanied the search, subsequent discovery of the body, and the child's funeral. Grief turned to public scorn when, approximately two weeks after the initial report of the missing child, petitioner was first charged with involuntary manslaughter and ultimately indicted for the murder of her child.

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On August 3, 1995, the Dayton Police Chief announced that petitioner had confessed to the killing. Subsequently, petitioner's boyfriend pled guilty to related charges and it was publicly disclosed in the guilty plea colloquy that petitioner killed the child after the child wandered into the room where petitioner and the boyfriend were engaged in sexual relations.

The continuing publicity concerning the story of the child's murder was massive. At the end of 1995, Dayton Daily News, the principal newspaper in Dayton, called the homicide story the Number 1 news story for that calendar year.

On January 12, 1996, just seventeen days before the jury voir dire commenced, petitioner's counsel supplemented an initial motion for change of venue. 1 Citing State v. Herring, 21 Ohio App.3d 18, 486 N.E.2d 119 (1984), petitioner, while conceding that a careful and searching voir dire provides the best test for determining whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality, submitted considerable material in support of her claim that the trial court should review the pretrial publicity to determine whether it "was so pervasive and prejudicial that an attempt to seat a jury would be a vain act." 2 The trial court did not rule on the motion to change the venue until after a jury had been seated following the voir dire.

The jury trial began on January 29, 1996 and concluded on February 14, 1996, with convictions of petitioner for murder and additional crimes, resulting in a sentence of 22 years to life. On appeal, the Second District Court of Appeals for Ohio affirmed and the Ohio Supreme Court declined appellate review.

In the district court, petitioner sought habeas relief on the claim that her constitutional right to due process was violated, first, by the state trial court's refusal to change the venue for the trial based on "presumed prejudice" and, second, by the process by which the subsequent voir dire proceedings were conducted. The parties consented to the jurisdiction of a magistrate

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judge who, on May 30, 2001, denied the petition for a writ, concluding that "[t]he Ohio Court of Appeals' application of controlling Supreme Court precedent to the facts of this case was objectively reasonable." J.A. at 557. Petitioner appealed.


A federal court is authorized to grant a writ of habeas corpus to a state prisoner who is held "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). This Court reviews a district court's decision in a habeas proceeding de novo. See Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000).

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), amended federal habeas law by, among other things, changing § 2254(d) of the habeas statute to provide 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 proceedings 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 on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Thus, the role of federal courts in the context of habeas review has been significantly modified.

In Staley v. Jones, 239 F.3d 769, 775 (6th Cir. 2001), the Sixth Circuit noted:

In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court explained the proper application of § 2254(d) (1). The Court held that a decision of a state court is "contrary to" clearly established federal law "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 case differently than this Court has on a set of materially indistinguishable facts." Id., 120 S.Ct. at 1523. The Court also held that an "unreasonable application" occurs when "the state court identifies the correct legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. A state adjudication in not "unreasonable" "simply because [the federal] court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 1522.


Our recent decision in Nevers v. Killinger, 169 F.3d 352 (6th Cir. 1999) 3 teaches, in the context of 28 U.S.C. § 2254(d) (1), "that

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there is clearly established Supreme Court precedent distinguishing between cases involving presumed prejudice--when the 'setting of the trial [is] inherently prejudicial,'--and actual prejudice--when review of both the jury voir dire testimony and the extent and nature of the media coverage indicates 'a fair trial [was] impossible.' " Id. at 364 (quoting Murphy v. Florida, 421 U.S. 794, 798, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975)).

The well-known trilogy of "presumed prejudice" cases includes Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), and Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). The opinions in this trilogy did not separate or identify the two concepts of "presumed prejudice" and "actual prejudice." Rather, that distinction was first identified in Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). 4 Just two years later, in Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), 5 Associate Justice Rehnquist, relying on Murphy and writing for the majority, opined:

There was, understandably, extensive pretrial publicity concerning several aspects of this case. We accept petitioner's assertion ... that there was substantial media coverage, including a number of television and radio stories regarding the various aspects of the case.

* * *

Petitioner's argument that the extensive coverage by the media denied him a fair trial rests almost entirely upon the quantum of publicity which the events received. He has directed us to no specific portions of the record, in particular the voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected. But under Murphy, extensive knowledge in the community of either the crimes or the putative criminal is not sufficient by itself to render a trial constitutionally unfair. Petitioner in this case has simply shown that the community was made well aware of the charges against him and asks us on that basis to presume unfairness of constitutional magnitude at his trial. This we will not do in the absence of a "trial atmosphere ... utterly corrupted by press coverage," Murphy v. Florida, supra, at 798. One who is reasonably suspected of murdering his children cannot expect to remain anonymous....

Dobbert, 432 U.S. at 301-03, 97 S.Ct. 2290.

Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) is another

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decision revisiting the issue of a denied motion for change of venue in an extensive pretrial publicity setting. The defendant, a high school teacher, murdered a female student, but his conviction was reversed by the Pennsylvania Supreme Court. The re-trial started four years later, in the same county and with substantial newspaper coverage, which included the fact that the defendant's confession introduced to obtain his conviction in the first trial had been ruled inadmissible by the Pennsylvania Supreme Court. The Third Circuit, in a habeas setting following...

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