371 F.3d 310 (6th Cir. 2004), 03-5112, Baze v. Parker

Docket Nº:03-5112.
Citation:371 F.3d 310
Party Name:Ralph Stephens BAZE, Jr., Petitioner-Appellant, v. Philip PARKER, Warden, Kentucky State Penitentiary, Respondent-Appellee.
Case Date:June 09, 2004
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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371 F.3d 310 (6th Cir. 2004)

Ralph Stephens BAZE, Jr., Petitioner-Appellant,

v.

Philip PARKER, Warden, Kentucky State Penitentiary, Respondent-Appellee.

No. 03-5112.

United States Court of Appeals, Sixth Circuit

June 9, 2004

Argued: Dec. 10, 2003.

Rehearing En Banc Denied Aug. 27, 2004.

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Timothy T. Riddell (argued and briefed), Milton Coburn Toby (briefed), Perch & Toby, Lexington, KY, for Petitioner-Appellant.

David A. Smith (argued and briefed), Asst. Atty. General, Brian T. Judy (briefed), Asst. Atty. General, Frankfort, KY, for Respondent-Appellee.

Before: BOGGS, Chief Judge; and COLE and COOK, Circuit Judges.

OPINION

BOGGS, Chief Judge.

Petitioner Ralph Baze, Jr. was convicted of the 1992 murders of Sheriff Steven Bennett and Deputy Sheriff Arthur Briscoe, whom he shot in the back when they attempted to arrest him pursuant to an outstanding Ohio multiple-felony arrest warrant. The jury sentenced Baze to death. The Kentucky Supreme Court affirmed his conviction and sentence on direct appeal, and it denied relief in state post-conviction proceedings. Baze petitioned for federal habeas relief, pursuant to 28 U.S.C. § 2254, which the United States District Court for the Eastern District of Kentucky denied in a series of exhaustive opinions. For the reasons elaborated upon below, we affirm the district court's denial of Baze's petition.

I

Ralph Baze lived in Powell County, Kentucky, in a mountain hollow known as Little Hardwick's Creek, with his wife. Some of his other relatives lived on another ridge of the same mountain. His cabin was at the end of gravel road, heavily wooded on both sides, approximately 1,000 feet up the mountain, in a small clearing that made maneuvering a vehicle very difficult. By January 1992, the time of the shootings, Baze was a twice-convicted felon and was wanted in Ohio for felonious assault of a police officer, jumping bail, receiving stolen property, and flagrant non-support.

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On January 15, 1992, authorities from the Lucas County Sheriff's Office in Toledo, Ohio notified the Powell County authorities that they wished to extradite Baze on the felony counts. At that time, Baze was in Ohio, and his wife, Becky Baze, informed the police that she did not know where he was when they came to arrest her husband in mid-January. She then phoned Baze to warn him that the police were looking for him. Baze left Ohio for Michigan, where he bought a SKS assault rifle and ammunition, which he ultimately used to kill the two police officers.

Baze returned to his brother-in-law's house in nearby Bath County, Kentucky, on January 28 and decided to move to Florida. He returned to his cabin on January 30 with his wife, and his siblings-in-law, Wesley and Sophie McCarty, intending to hold a yard sale to lighten their load and then to leave for Florida that evening. Deputy Sheriff Briscoe heard that Baze was back in town and proceeded to Baze's cabin to arrest him. When Briscoe arrived, Baze was inside; however, he could hear Briscoe announce his intention to Becky to arrest her husband. While Briscoe returned to his cruiser, Baze left the cabin through a trapdoor in the bedroom floor, retrieved his SKS assault rifle from behind the cabin, and then walked around the cabin to inform Briscoe that he would not allow himself to be arrested. Wesley McCarty intervened to avoid a confrontation, during which Briscoe put his hand on or near his holster. Becky grabbed Briscoe's arm, and Baze used the opportunity to leave the immediate area. Briscoe then left in his cruiser to recruit additional officers to effect the arrest.

Baze used the interim to gather his personal belongings, and 98 rounds of ammunition, and went uphill into the woods. He later told the Louisville Courier-Journal that he circled around to hide behind a stump behind the spot where the police would have to leave their cars. Deputy Briscoe arrived back first, followed by Sheriff Bennett. Both got out of their cruisers with their guns out and they came together on the rear driver's side of Bennett's cruiser. Baze's wife Becky was yelling at them from the porch of the cabin, so that when they turned to engage her, they had their backs to the woods where Baze was hiding. All agree that at that moment gunfire began.

Baze testified that he moved out from behind a large stump and brush pile, unarmed, intending to surrender, but that Briscoe shot him in the leg with a pistol. Wesley and Sophie McCarty supported Baze's version by testifying that Baze stood up without a gun. In contrast, Baze's son-in-law, Greg Profitt, who was also at the house, testified that Baze shot first, but he admitted that he could not distinguish between rifle and pistol fire. Becky Baze also testified that Baze shot first, causing Bennett to turn his head back to his right to see where the gunfire was coming from. The policemen who were driving up the road to lend support testified that the first 6-10 shots they heard were rifle fire.

Briscoe and Bennett then turned to face the woods and took cover behind the police cruiser on the driver's side, with Briscoe shooting over the hood and Bennett over the trunk. For reasons that are unclear, Bennett moved around the rear of the cruiser and opened the back passenger door as if to get into the back seat, in fact crossing directly into Baze's line of fire. Thereupon, Baze shot him three times in the back. Baze then started to walk down the hill towards Briscoe, who continued to shoot at Baze over the hood of the police cruiser until he ran out of ammunition, and Baze was too close to give him time to reload. Briscoe then turned to attempt to

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escape and, after he had gone about ten feet, Baze shot him twice in the back. Wesley McCarty described Briscoe as "staggering away" before he fell on his face. Baze then approached the fallen officer and, allegedly thinking that he might be reaching for his gun, shot Briscoe in the head at point-blank range.

Baze then picked up the weapons and ammunition and fled on foot to adjoining Estill County. He surrendered without incident at 8 p.m. that evening at the home of the former Estill County Sheriff, where he received his Miranda warnings. Upon overhearing a query over the radio as to whether the arresting officer had the correct suspect, Baze responded: "You tell them that you got the right man. I'm the one that killed them son-of-a-bitches."

Baze was tried in Rowan County, convicted, and sentenced to death in February 1994 for shooting the officers. The Kentucky Supreme Court affirmed the sentence on direct appeal in November 1997. Baze v. Commonweath, 965 S.W.2d 817 (Ky.1997) (Baze I). The United States Supreme Court denied certiorari in April 1998. Baze filed a motion to vacate his sentence under Kentucky's post-conviction review procedure, asserting, among other things, ineffective assistance of counsel due to irregularities in the use of his peremptory challenges. The state trial court denied the motion to vacate without conducting an evidentiary hearing, a decision that the Kentucky Supreme Court affirmed in April 2000. Baze v. Commonweath, 23 S.W.3d 619 (Ky.2000) (Baze II). Certiorari was again denied, in February 2001.

Baze then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Kentucky in April 2001. The district court denied a motion for an evidentiary hearing on September 23, 2002, and denied the habeas petition four days later. The district court denied a motion to alter or amend the judgment on December 23, 2002 but "in an abundance of caution" issued a certificate of appealability on all of the issues that Baze raised. Baze then filed an appeal with this court asserting twelve points of error. Most salient for this opinion are his assertions of ineffective assistance of counsel and improper limitations on his ability to exercise his peremptory challenges. He also alleges denial of due process because of claims of: 1) trial court interference with presentation of a defense; 2) refusal to strike six jurors for cause; 3) improper jury admonition, instructions, and verdict form; 4) improper introduction of character evidence and unrelated out-of-state charges; 5) refusal to introduce Baze's federal firearms sentence; and 6) cumulative effect of errors.

II

When reviewing a denial of habeas corpus relief, this court reviews the district court's legal conclusions de novo and its factual findings under a "clearly erroneous" standard. Skaggs v. Parker, 235 F.3d 261, 266 (6th Cir. 2000). The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) governs the review of the state court decisions involved in this case and mandates additional deference to state court proceedings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998).

In AEDPA, Congress provided that:

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 an involved an unreasonable

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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).

A state court decision is "contrary to" Supreme Court precedent "if the state court arrives...

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