Ryan v. Clarke

• Decision Date: 29 October 2004
• Docket Number: No. 03-3642.,03-3642.
• Citation: 387 F.3d 785
• Parties: Michael W. RYAN, Petitioner—Appellant, v. Harold W. CLARKE, Director, State of Nebraska Department of Correctional Services Respondent—Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 785

387 F.3d 785

Michael W. RYAN, Petitioner—Appellant, v. Harold W. CLARKE, Director, State of Nebraska Department of Correctional Services Respondent—Appellee.

No. 03-3642.

United States Court of Appeals, Eighth Circuit.

Submitted: June 17, 2004.

Filed: October 29, 2004.

Rehearing and Rehearing En Banc Denied December 13, 2004.

Appeal from the United States District Court, Richard G. Kopf, Chief Judge.

Steven E. Achelpohl and Michael A. Nelsen, argued, Omaha, NE, for appellant.

J. Kirk Brown, argued, Asst. Atty. Gen., Lincoln, NE (Kimberly A. Klein, Asst. Atty. Gen., on the brief), for appellee.

Before BYE, BOWMAN, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Petitioner-Appellant Michael W. Ryan, a state prisoner under a sentence of death, appeals the district court's¹ denial of habeas relief. On appeal, Ryan argues that ex parte meetings with members of the victims' families by the state judge who presided over his capital murder trial deprived him of a fair sentencing hearing. Ryan also alleges that he was not competent to stand trial or proceed with his habeas corpus proceeding. However, since the Nebraska courts did not make "an unreasonable determination of the facts in light of the evidence presented in the State court proceedings," 28 U.S.C. § 2254(d)(2), nor apply "clearly established Federal law, as determined by the Supreme Court of the United States" in an unreasonable manner, 28 U.S.C. § 2254(d)(1), we affirm.

I. Background

On April 10, 1986, a jury convicted Ryan of first degree murder in the death of James Thimm. Thimm died April 29, 1985, after Ryan and four others tortured him for three days. The state of Nebraska also charged Ryan with the murder of Luke Stice. Ryan entered a plea of nolo contendere to the second degree murder of Stice. The Nebraska Supreme Court set forth the underlying facts of the crimes in its opinion on direct appeal, State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989) (Ryan I), and on appeal of Ryan's first motion for post conviction relief, State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995) (Ryan II). We granted a certificate of appealability as to three issues: 1) the application of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA); 2) Ryan's competency; and 3) the effect of any misconduct by the trial court in holding the ex parte meeting with the victims' families prior to sentencing. We address in detail only facts that are relevant to these issues.

Judge Robert T. Finn presided over Ryan's trial. Judge Finn was to sentence Ryan for both the first degree murder of Thimm and the second degree murder of Stice. On September 10, 1986, following Ryan's conviction for the Thimm murder, one of Ryan's trial attorneys, Richard Goos, filed a motion asking Judge Finn to disqualify himself from Ryan's sentencing. Goos argued that an ex parte August meeting between Judge Finn and Stice's family required Judge Finn to disqualify himself.

On September 15, 1986, Judge Finn considered the motion to disqualify himself. Goos expressed concern that Thimm's sentencing had been discussed during the meeting with the Stice family. Judge Finn overruled the motion and stated that he had not discussed Thimm's sentencing at the ex parte meeting. The sentencing hearing took two days, concluding on September 16, 1986. On October 16, 1986, Judge Finn sentenced Ryan to death for the murder of Thimm. Ryan had already been sentenced to life imprisonment for the murder of Stice.

Ryan appealed his conviction and sentence. In his appeal, he raised the issue of judicial misconduct based on the ex parte meeting, the fact that Judge Finn turned his back on Ryan during Ryan's testimony at trial, and Judge Finn's failure to disqualify himself from sentencing. The Nebraska Supreme Court affirmed Ryan's conviction and sentence on direct appeal. Ryan I, 444 N.W.2d at 656.

On October 19, 1990, Ryan filed his first motion in the Nebraska trial court for post conviction relief, which included Ryan's claims of judicial misconduct in sentencing. The case was referred to retired Judge Dewayne Wolf. Ryan's appointed attorney, Robert Creager, investigated the issue of possible ex parte meetings between Judge Finn and members of both victims' families. As part of this investigation, Creager met with Judge Finn. Judge Finn told Creager that he had not held any ex parte meetings with the Thimm family. On April 27, 1993, Judge Finn signed an affidavit attesting to the fact that he had not held any ex parte meetings with the Thimm family. Judge Wolf denied Ryan's first motion for post conviction relief.

Ryan appealed. On appeal, Ryan again asserted that Judge Finn's refusal to disqualify himself from the sentencing hearing deprived Ryan of a fair sentencing procedure. Ryan also alleged that he had been deprived of his right to effective assistance of counsel because trial counsel failed to adequately raise the issue of judicial misconduct regarding Judge Finn's ex parte communications. The Nebraska Supreme Court affirmed the district court's decision, concluding that Ryan was not prejudiced by the ex parte meeting between Judge Finn and the Stice family. The court held that it had addressed the ex parte meeting issue on direct appeal and that Ryan was not entitled to relitigate the same issues in a post conviction proceeding. Ryan II, 248 Neb. at 460-61, 534 N.W.2d 766.

On November 17, 1995, Ryan filed a pro se petition for a writ of habeas corpus and stay of execution in federal court. The federal district court appointed counsel to represent Ryan. On April 1, 1996, Ryan's counsel filed an amended habeas petition. The amended petition raised claims relating to competency. Ryan did not raise issues regarding his competency in his first motion for state post conviction relief. In addition, the petition included new information and allegations regarding ex parte contact between Judge Finn and the victims' families. In a deposition taken by Ryan's appointed counsel, Thimm's foster cousin, Daneda Heppner, testified that she and another member of the Thimm family met with Judge Finn in May 1986. Heppner corroborated her information with a letter dated May 12, 1986, from Heppner to her family. In her letter, she informed them of the proceedings and her meeting with Judge Finn.

A federal magistrate judge found that Ryan had not fairly presented the factual basis for the judicial misconduct claim to the Nebraska Supreme Court. It was not evident whether Ryan had exhausted all of the state court remedies available to him regarding a meeting between Judge Finn and members of the Thimm family.² Accordingly, the district court gave Ryan the option of either withdrawing the amended petition or dismissing the action without prejudice to pursue the new judicial misconduct claim in state court. Ryan moved to dismiss his petition without prejudice, and the court granted his motion.

On November 7, 1996, Ryan filed a second motion for post conviction relief in the state trial court. Judge Gerald E. Moran was appointed to hear the motion. Judge Moran held an evidentiary hearing. Judge Finn testified that he had no recollection of an ex parte meeting, but based on the Heppner letter, such a meeting must have occurred. Judge Finn also testified that he had no recollection of the meeting when he overruled the motion to disqualify himself on September 15, 1986.

Judge Moran found that an improper ex parte meeting did occur on May 9, 1986, between Judge Finn and Thimm family members. Judge Moran concluded, however, that any claims related to the May 9 meeting were procedurally barred because Ryan and his counsel knew or reasonably should have known about the May 9 meeting during the direct appeal and the first post conviction proceedings. In the alternative, Judge Moran determined that even if the ex parte meeting claim was not procedurally barred, Ryan suffered no prejudice as a result of the meeting with the Thimm family or Finn's refusal to recuse himself.

Judge Moran also addressed Ryan's competency claims. He concluded that the competency claims were procedurally barred because Ryan could have raised the issue previously and had failed to do so. Judge Moran found, in the alternative, that Ryan was competent to stand trial, such that even if the competency claims were not barred, they did not entitle Ryan to relief.

On September 10, 1999, the Nebraska Supreme Court affirmed this denial of relief. State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999) (Ryan III). In Ryan III, the Nebraska Supreme Court rejected the trial court's determination that the claims related to the May 9 meeting between Judge Finn and the Thimm family members were procedurally barred. The Nebraska Supreme Court did conclude, however, that Judge Moran's alternative holding that there was no showing of actual bias was not clearly erroneous, and that the factual record supported that conclusion. As to the competency claim, the Nebraska Supreme Court agreed that the claim was procedurally defaulted. The Nebraska Supreme Court concluded: "Allowing Ryan to first raise the issue of competency after more than ten years of appellate litigation, during which Ryan chose not to raise the issue would make a mockery of the finality of the judicial process." Ryan III, 601 N.W.2d at 493.

Having exhausted his state remedies, Ryan filed another petition for a writ of habeas corpus. The federal district court denied his petition. We granted a certificate of appealability. We now address the issues of the applicability of the AEDPA, whether Ryan's competency claims were procedurally defaulted, whether Ryan was competent to stand trial, whether Ryan is presently competent to stand trial in his habeas proceeding and whether Judge Finn's ex parte meetings with the victims' families violated Ryan's rights to a fair sentencing.

II. Applicability of the AEDPA

The AEDPA applies only to habeas petitions filed after April 24, 1996, the date the...