Hicks v. Collins

• Decision Date: 15 September 2004
• Docket Number: No. 01-3764.,01-3764.
• Parties: John R. HICKS, Petitioner-Appellant, v. Terry COLLINS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 204

384 F.3d 204

John R. HICKS, Petitioner-Appellant, v. Terry COLLINS, Warden, Respondent-Appellee.

No. 01-3764.

United States Court of Appeals, Sixth Circuit.

Argued: March 9, 2004.

Decided and Filed: September 15, 2004.

Appeal from the United States District Court for the Southern District of Ohio, Herman J. Weber, J.

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Jarrod M. Mohler (briefed), Robbins, Kelly, Patterson & Tucker, Mark D. Mezibov (argued and briefed), Mezibov & Jenkins, Cincinnati, OH, for Petitioner-Appellant.

Charles L. Wille (argued and briefed), Attorney General's Office of Ohio, Capital Crimes Section, Columbus, OH, for Respondent-Appellee.

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

OPINION

SILER, Circuit Judge.

Petitioner John R. Hicks was convicted after a trial by jury of two counts of aggravated murder, Ohio Revised Code (O.R.C.) § 2903.01(B), and one count of aggravated robbery, O.R.C. § 2911.01. He was sentenced to death. O.R.C. §§ 2929.04(A)(3), (A)(5), and (A)(7). After unsuccessful direct appeals and state post-conviction proceedings, Hicks filed a petition for a writ of habeas corpus in accordance with 28 U.S.C. § 2254. The district court denied the petition and he appeals to this court. For the following reasons, we AFFIRM.

I. BACKGROUND

On August 2, 1985, Hicks acquired some cocaine in Cincinnati, Ohio. After ingesting the drug, he desired more and took the videocassette recorder (VCR) from the home he shared with his wife, Ghitana, and stepdaughter, Brandy Green. Hicks gave the VCR to a drug trafficker as security for a cocaine purchase. After consuming the cocaine, Hicks realized he had no money with which to redeem the VCR. Recognizing that the missing VCR would lead to problems with Ghitana, he decided to rob Maxine Armstrong, who was Ghitana's mother and his mother-in-law. He knew that "if [he] robbed her he would have to kill her." State v. Hicks, 43 Ohio St.3d 72, 538 N.E.2d 1030, 1032 (1989). Hicks went to Armstrong's apartment, where he found Brandy asleep on the couch. He woke her, put her to bed, and prepared to kill Armstrong, telling himself, "you go do it or you don't." Id. at 1033.

Hicks killed Armstrong by strangling her with a clothes line he had brought with him. He stole approximately $300 and some credit cards from her apartment. He then retrieved the VCR from the drug dealer and purchased more cocaine. Around 12:30 a.m. on August 3, after injecting the cocaine, he "got to thinking again" and realized that Brandy could identify him as the last person to visit Armstrong. Therefore, he decided to return to the apartment to kill Brandy.

Upon returning to Armstrong's apartment he tried to smother Brandy with a pillow. As Brandy was "bucking" and "fighting," he tried to choke her with his hands. When she continued to make breathing sounds, he affixed duct tape over her nose and mouth. After killing Brandy, Hicks moved Armstrong's body into the bathtub so that he could dismember it for easier disposal. After nearly severing one of her legs with a kitchen knife, however, he gave up and returned to the bedroom where Brandy's body was located. He removed her underwear and digitally penetrated her vagina. He then stole other items from the apartment, returned to his own apartment, and fled Cincinnati. On August 4, he surrendered to police in Knoxville, Tennessee, where he confessed to both murders. Hicks was returned to Cincinnati and made additional incriminating statements to Cincinnati homicide detectives Robert Hennekes and Joe Hoffman.

After Hicks was indicted, he filed a suggestion of incompetence to stand trial. The trial court conducted evidentiary hearings and found him competent to stand trial. While the trial court denied the majority of Hicks's pre-trial motions, it deferred ruling on his motion for funding to hire experts until he could "provide more specific information as to the identity and qualification of said expert or experts, the relationship of the expert's expected testimony ... and the cost of said expert."

The guilt phase of Hicks's trial began on February 3, 1986. Hicks did not present any evidence on his insanity defense and subsequently withdrew his insanity plea. On February 12, 1986, the jury found Hicks guilty on all counts. The sentencing phase of his trial began on February 13, 1986, and Hicks presented mitigating evidence and made an unsworn statement. On February 14, 1986, the jury recommended death for the murder of Brandy Green and life imprisonment for the murder of Maxine Armstrong. Based upon its independent review of the evidence, the trial court sentenced Hicks to death for Green's murder, thirty-years' imprisonment for Armstrong's murder, and ten to twenty-five-years' imprisonment for aggravated robbery.

Hicks appealed to the Ohio Court of Appeals and asserted nine assignments of error. In 1988, the appellate court affirmed his convictions. He appealed to the Supreme Court of Ohio, asserting ten assignments of error. It rejected his arguments and affirmed his sentences. Hicks's subsequent motion for rehearing was denied by the Ohio Supreme Court in 1989. He then filed a petition for writ of certiorari in the United States Supreme Court, but it was also denied.

In 1990, pursuant to O.R.C. § 2953.21, Hicks filed a petition for post-conviction relief in the Hamilton County Court of Common Pleas, raising forty-one issues for review. The trial court denied his motion for relief from judgment. Hicks appealed to the court of appeals, raising twelve assignments of error. In 1993, the appellate court affirmed the decision of the trial court. Hicks then sought discretionary review before the Ohio Supreme Court, which dismissed his appeal on July 21, 1993, for lack of a substantial constitutional question.

In the interim, Hicks filed an application for delayed consideration in the Ohio appellate court in September 1992, submitting thirty-seven assignments of error. On December 1, 1992, the appellate court denied his application and he appealed to the Ohio Supreme Court. On October 27, 1993, the Ohio Supreme Court affirmed. On December 15, 1993, the Ohio Supreme Court denied his motion for rehearing. On March 5, 1993, Hicks filed a motion for reinstatement of direct appeal in the Ohio Supreme Court, which in turn denied his request.

In 1994, Hicks filed a petition for a writ of habeas corpus with the United States District Court for the Southern District of Ohio. An evidentiary hearing was held in 1997. In April 2001, the district court entered its thorough 171-page order denying Hicks's petition. However, it issued a certificate of appealability ("COA") on the issues of ineffective assistance of counsel during the guilt and penalty phases and prosecutorial misconduct. We granted Hicks's request for a COA on the additional issue of ineffective assistance of appellate counsel.

II. STANDARD OF REVIEW

A. Pre-AEDPA

Hicks filed his habeas petition before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). "Under pre-AEDPA analysis, `this court reviews a district court's refusal to grant a writ of habeas corpus de novo, but reviews the district court's factual findings for clear error.'" Zuern v. Tate, 336 F.3d 478, 481 (6th Cir.2003) (quoting Coe v. Bell, 209 F.3d 815, 823 n. 2 (6th Cir.2000)).

B. Procedural Default

Hicks has procedurally defaulted every claim except the ineffective assistance of trial counsel claims and one prosecutorial misconduct claim regarding an appeal to the jury to act as the community's conscience. When "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."¹ Monzo v. Edwards, 281 F.3d 568, 575 (6th Cir.2002) (citations omitted). In determining whether a claim has been procedurally defaulted, this court has applied the following four-part test: (1) the court must determine that there is a state procedural rule with which the petitioner failed to comply; (2) the court must determine whether the state courts actually enforced that state procedural rule; (3) the state procedural rule must have been an adequate and independent state procedural ground upon which the state could rely to foreclose review of a federal constitutional claim; and (4) if the court has determined that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for his failure to follow the rule and that actual prejudice resulted from the alleged constitutional error. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986).

In Ohio, res judicata bars state courts from considering constitutional claims in post-conviction collateral attacks (brought under Ohio Rev.Code Ann. § 2953.21) when those claims have already been or could have been fully litigated on direct appeal. Monzo, 281 F.3d at 576. Res judicata also bars ineffective assistance of trial counsel claims, not asserted on direct appeal, when the defendant is represented by a different counsel on direct appeal. Id. at 576-77. However, if the defendant was represented by the same counsel at trial and on direct appeal, claims of ineffective assistance of trial counsel are not defaulted because appellate counsel will rarely assert his own ineffectiveness at trial. See Buell v. Mitchell, 274 F.3d 337, 348 n. 3 (6th Cir.2001).

Hicks had the same counsel on direct appeal, so his ineffective trial counsel claims are cognizable; however, he has procedurally defaulted his other claims regarding ineffective appellate counsel and prosecutorial misconduct (other than the jury-as-community-conscience claim) because he did not assert the claims on direct...