White v. Mitchell

• Decision Date: 07 December 2005
• Docket Number: No. 02-3073.,02-3073.
• Citation: 431 F.3d 517
• Parties: Maxwell D. WHITE, Jr., Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 517

431 F.3d 517

Maxwell D. WHITE, Jr., Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.

No. 02-3073.

United States Court of Appeals, Sixth Circuit.

Argued: March 24, 2005.

Decided and Filed: December 7, 2005.

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ARGUED:

Michael J. Benza, Cleveland, Ohio, for Appellant. Henry G. Appel, Attorney General's Office of Ohio, Columbus, Ohio, for Appellee.

ON BRIEF:

Michael J. Benza, Cleveland, Ohio, Alan C. Rossman, Cleveland, Ohio, for Appellant. Henry G. Appel, Attorney General's Office of Ohio, Columbus, Ohio, for Appellee.

Before: MERRITT, DAUGHTREY, and GIBBONS, Circuit Judges.

GIBBONS, J., delivered the opinion of the court, in which DAUGHTREY, J., joined.

MERRITT, J. (p. 543), delivered a separate concurring opinion.

OPINION

GIBBONS, Circuit Judge.

In 1996, an Ohio state jury convicted Maxwell D. White, Jr. of aggravated murder with two death penalty specifications, having a weapon while under a disability and abduction. White was sentenced to death. White sought a writ of habeas corpus in federal district court. The district court denied the petition in its entirety. The district court granted a certificate of appealability on two claims: (1) whether one of the seated jurors lacked sufficient impartiality to serve on the jury; and (2) whether prosecutorial theatrics denied White a fundamentally fair trial. A panel of this court granted a certificate of appealability on the following additional issues: (3) whether the prosecution improperly used its peremptory challenges to exclude women from the jury; (4) whether White received ineffective assistance of counsel during the mitigation phase of trial; (5) whether pretrial publicity resulted in undue prejudice; (6) whether the jury instructions violated White's due process rights; (7) whether the trial court improperly considered future dangerousness as an aggravating factor; (8) whether White's Fifth Amendment right against self-incrimination was violated by the introduction at trial of statements made by White during a competency evaluation, and (9) whether White was entitled to discovery and an evidentiary hearing in district court. White appeals these issues.

For the following reasons, we affirm the district court's denial of White's petition with regard to all of the issues raised with regard to his conviction. However, because the state court's conclusion that one of the seated jurors, Susanne Sheppard, was believable as an impartial juror was contrary to or an unreasonable application of Supreme Court precedent, we reverse the decision of the district court and remand the case to the district court for purposes of granting a conditional writ of habeas corpus on the issue of juror impartiality as to the sentencing phase of the trial.

I.

At approximately 5:00 pm on January 18, 1996, White arrived at the condominium that he shared with his mother, Jean White, and told her that he was not going to his job at Kroger's warehouse. He left the condominium and did not return until approximately 12:00 am. When he returned, White was intoxicated and wanted to be left alone. He began screaming at his mother after she asked him to quiet down because she was concerned that someone might call the police due to the noise. White was afraid of a confrontation with the police because he was on probation for carrying a concealed weapon and believed that the police had harassed him on prior occasions. Upon learning that his mother had called his sister, White pulled the phones off the wall and told his mother not to call the police. White got a gun out of the gun cabinet and, when his sister arrived at the apartment, ordered his mother and sister at gunpoint to pack two bags for him with clothing and guns. White then tied his mother and sister to a pole in the basement. While White was struggling with a clip for a gun, the gun discharged in his hands and hit his mother in the foot.

White left the apartment, got in his car, and began speeding down Interstate 71. A few motorists reported a brown automobile traveling erratically on the highway in the early morning hours of January 19. Trooper James Gross received these reports and left the dispatching area in order to investigate. Within a few minutes of his search, Trooper Gross spotted the described automobile and pursued it. While following the automobile, Trooper Gross called in the car's license plate number and learned that the car was registered to White and that White did not have driving privileges due to a prior drunk driving conviction. Trooper Gross pulled White's vehicle over to the side of the road.

Several motorists traveling on Interstate 71 testified at trial that they saw Trooper Gross step out of his vehicle, walk toward White's vehicle, and lean toward the driver's side window to speak with White. The witnesses testified that they heard a pop and saw a flame, at which point Trooper Gross spun around and fell as he attempted to run back to his vehicle. The witnesses then saw White lean out of the car and fire shots at Trooper Gross's back. White then fled in his vehicle. A UPS driver and a deputy sheriff attempted to revive Trooper Gross, but he could not be revived. He died of a gun shot wound to his heart. The bullet had entered Gross's back, just beneath his bullet-proof vest.

Motorists who had witnessed the shooting began following White's vehicle. After a high-speed chase involving both truck drivers and the police, White was apprehended when he crashed his vehicle into an exit ramp. Police retrieved a semiautomatic pistol from the vehicle and took White into custody.

The Ashland County Grand Jury issued a three count indictment against White on January 25, 1996, charging him with (1) aggravated murder of Trooper Gross with a specification pursuant to Ohio Revised Code § 2929.04(A)(3) for acting with the purpose of escaping detection, apprehension, trial or punishment for another offense and one specification pursuant to Ohio Revised Code § 2929.04(A)(6) for committing the murder against a peace officer whom White knew or had reasonable cause to know was engaged in his duties; (2) possession of weapons while under disability; and (3) abduction of Jean White with one specification for possessing a firearm on or about his person while committing the offense of abduction. White was arraigned on January 23, 1996. White entered a plea of not guilty by reason of insanity. The trial court conducted a competency hearing on April 22, 1996. Dr. James F. Sunbury. a psychologist, prepared a written psychological evaluation of White, in which Dr. Sunbury stated that White was, in Sunbury's opinion, competent to stand trial. The parties then stipulated to White's competency to stand trial. White did not pursue the insanity defense further.

White's trial began on June 10, 1996. The jury returned a verdict of guilty on all counts on June 19, 1996. The mitigation phase of trial began on June 24, 1996, and on June 29, 1996, the jury returned a recommendation of a death sentence for the aggravated murder charge. The trial court accepted the recommendation and sentenced White to death on July 10, 1996. The trial judge also sentenced White to eighteen months on the firearm charge and five to ten years on the abduction charge, to run consecutively to the death sentence.

White filed a notice of appeal on August 14, 1996. The Ohio Court of Appeals dismissed this appeal for want of jurisdiction on September 24, 1996. White filed an unsuccessful motion for reconsideration. White then appealed the decision to the Ohio Supreme Court. The Ohio Supreme Court affirmed White's conviction and death sentence on May 20, 1998. State v. White, 82 Ohio St.3d 16, 693 N.E.2d 772 (1998). White unsuccessfully sought post-conviction relief. State v. White, No. 97COA01229, 1998 WL 515944 (Ohio Ct.App. Aug.7, 1998). White then filed a motion to reopen his direct appeal, but this motion was denied. State v. White, 89 Ohio St.3d 1467, 732 N.E.2d 999 (2000) (Table).

In November, 1999, White filed a petition for writ of habeas corpus in federal district court, setting forth twenty-one claims for relief. The district court denied White's petition in its entirety in an order dated December 18, 2001. The district court nonetheless granted a certificate of appealability on two claims: (1) whether Susanne Sheppard, one of the seated jurors, lacked sufficient impartiality to serve on the jury; and (2) whether prosecutorial theatrics denied White a fundamentally fair trial. A panel of this court granted a certificate of appealability on the following additional issues: (3) whether the prosecution improperly used its peremptory challenges to exclude women from the jury; (4) whether White received ineffective assistance of counsel during the mitigation phase of trial; (5) whether pretrial publicity resulted in undue prejudice; (6) whether the jury instructions violated White's due process rights; (7) whether the trial court improperly considered future dangerousness as an aggravating factor; (8) whether White's Fifth Amendment right against self-incrimination was violated by the introduction at trial of statements made by White during a competency evaluation; and (9) whether White was entitled to discovery and an evidentiary hearing in district court.

II.

White's petition is subject to the requirements of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Under the AEDPA, a writ may not be granted unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established" Supreme Court precedent or "was based on an unreasonable determination of facts in light of the evidence presented" during the state court proceedings. 28 U.S.C. § 2254(d)(1)-(2). A state court decision is contrary to federal law when it "arrives at a conclusion opposite to that...