501 F.3d 743 (6th Cir. 2007), 05-4023, Girts v. Yanai

Docket Nº:05-4023.
Citation:501 F.3d 743
Party Name:Robert GIRTS, Petitioner-Appellant, v. Chris YANAI, Warden, Respondent-Appellee.
Case Date:September 05, 2007
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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501 F.3d 743 (6th Cir. 2007)

Robert GIRTS, Petitioner-Appellant,


Chris YANAI, Warden, Respondent-Appellee.

No. 05-4023.

United States Court of Appeals, Sixth Circuit.

Sept. 5, 2007

Argued: June 6, 2007.

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 02-00264-Kathleen McDonald O'Malley, District Judge.

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Hope E. Redmond, Thompson Hine, Cleveland, Ohio, for Appellant.

Thelma T. Price, Office of the Attorney General, Columbus, Ohio, for Appellee.


Hope E. Redmond, Robert F. Ware, Thompson Hine, Cleveland, Ohio, for Appellant.

Bruce D. Horrigan, Office of the Attorney General, Cleveland, Ohio, for Appellee.

Before: MARTIN, BATCHELDER, and CLAY, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which MARTIN, J., joined. BATCHELDER, J. (pp. 761-62), delivered a separate dissenting opinion.


CLAY, Circuit Judge.

Petitioner Robert Girts appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner argues that his conviction for aggravated murder violated his Fifth and Sixth Amendment rights because the prosecution improperly commented on his right to remain silent during closing argument, and his trial counsel was ineffective in failing to object to the prosecutor's statements. For the reasons that follow, we REVERSE the district court's decision, conditionallyGRANT the writ of habeas corpus petition, and REMAND this case to the district court.


I. Procedural History

On February 9, 1993, Petitioner was indicted for aggravated murder, under Ohio Revised Code ("O.R.C.") § 2903.01

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by a grand jury in Cuyahoga County, Ohio. At the ensuing trial, Petitioner testified in his defense. Petitioner was convicted of aggravated murder by a jury in the Cuyahoga County Court of Common Pleas ("trial court") on June 3, 1993. The Ohio Court of Appeals, Eighth District ("Eighth District") reversed the conviction. State v. Girts, No. 65750, 1994 WL 393678, at *12 (Ohio Ct.App. 8th Dist. July 28, 1994) (holding that "[t]he state's questioning [on cross-examination] ... was not founded in good faith and materially prejudiced the defense"). The case was re-tried before a different judge. Petitioner did not testify during the second trial.

During the second trial, the prosecution made three statements concerning Petitioner's failure to testify in his closing argument. The prosecutor stated:

Again these are his words. And the words that you heard from these folks supplied by him are unrefuted, and they are uncontroverted. There has been no evidence offered to say that these people are incorrect. None at all.

(J.A. 1284). The prosecution asserted that "with respect to the source [of the cyanide], the defendant had no less than three occasions to tell the police that he had ordered the cyanide." (J.A. 1285) Last, the prosecutor stated:

Ladies and gentlemen, we don't have to tell you how it was introduced into her system. We know that it was ingested. And there is only one person that can tell you how it was introduced, and that's the defendant.

(J.A. 1287) Petitioner's counsel did not object to the prosecutor's statements. Petitioner was again convicted of aggravated murder by a jury on August 9, 1995.

Petitioner filed two notices of appeal with the Eighth District challenging his conviction. The two appeals were consolidated, and the Eighth District affirmed the trial court's judgment on June 12, 1997. Petitioner filed a motion for reconsideration with the Eighth District, which was denied on July 24, 1997. State v. Girts, 121 Ohio App.3d 539, 700 N.E.2d 395 (Ohio Ct.App. 8th Dist.1997). On July 25, 1997, Petitioner filed a pro se motion for leave to appeal which the Ohio Supreme Court denied on October 15, 1997. State v. Girts, 80 Ohio St.3d 1424, 685 N.E.2d 237 (1997). Petitioner's motion for reconsideration was denied on December 10, 1997. State v. Girts, 80 Ohio St.3d 1472, 687 N.E.2d 299 (1997).

On January 22, 1996, Petitioner filed an application for post-conviction relief with the trial court alleging ineffective assistance of counsel, which was denied on November 27, 1997. The Eighth District affirmed the trial court's decision on December 4, 2000. Petitioner appealed to the Ohio Supreme Court, but the motion for leave to appeal was denied.

Petitioner filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio on February 12, 2002. Petitioner maintained that his "due process rights and [] right to a fundamentally fair trial were violated when the prosecutor improperly commented on Petitioner's right to remain silent," and that he was denied effective assistance of counsel. (J.A. 10) A magistrate judge issued a report and recommendation on May 29, 2003, recommending that the writ of habeas corpus petition be denied. Petitioner filed objections to the report and recommendation. On July 12, 2005, the district court found that the prosecutor improperly commented on Petitioner's right to remain silent and that trial counsel was ineffective in failing to object to the prosecution's statements, but held that Petitioner failed to show prejudice and denied the petition for writ of habeas corpus. See Girts v. Yanai, No.02CV0264, 2005 WL 1637862, at *1 (N.D.Ohio July 12, 2005)

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Petitioner filed a timely notice of appeal on August 3, 2005.

II. Substantive Facts

This Court relies on the facts as they were found by the state appellate court on direct review. See, e.g., Bell v. Bell, 460 F.3d 739, 743 (6th Cir.2006); see also 28 U.S.C. § 2254(e)(1) ("In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). In this case, the facts as stated by the Ohio Court of Appeals are as follows:

... [D]efendant and decedent lived in a house that adjoined the funeral home where defendant worked as a funeral director and embalmer. On the morning of September 2, 1992, defendant and several others began driving back from Chicago to Parma after having assisted in moving defendant's brother. Decedent remained at home, being scheduled to work at noon that day. When she did not arrive at work on time, a coworker telephoned the funeral home and expressed her concern over decedent's unusual tardiness. A funeral home employee noticed decedent's car in the driveway, so he checked the house. The employee found the screen door open and called into the house. When decedent failed to respond, he entered the house and discovered her body slumped over in the bathtub.

The police found no evidence of foul play nor any obvious sign of suicide. A razor floating on the bath water, a hot curling iron resting on a nearby dressing table, and the couples' dog roaming in the yard led the police to conclude that decedent had died suddenly while bathing. Because the police could not readily determine a cause of death, they transported the body to the coroner's office for an autopsy.

During the autopsy, the coroner's office noted no obvious cause of death. The coroner did find an undigested meal of pasta salad in decedent's stomach, and recognized lividity or reddening of the skin which would typically be found in a person exposed to carbon monoxide. Carbon monoxide testing, however, showed no significant levels. The coroner listed no cause of death.

Around September 20, 1992, defendant telephoned the police and told them that he had found a note, hand-written by decedent, which might explain her death. The undated note stated, "I hate Cleveland. I hate my job. I hate myself." Defendant explained that he found the note underneath some papers in his brief case. He told police that decedent had been despondent over their recent move to the Cleveland area. She had difficulty finding work and worried that she had a weight problem. Defendant also told the police that decedent suffered three miscarriages and had been trying to come to grips with the thought that she might not be able to bear children.

At about the same time, the coroner ordered department toxicologists to perform additional tests on body fluids taken from decedent, specifically asking them to detect the presence of any poisons. An initial test for the presence of potassium cyanide had to be discarded when the toxicologist discovered that reagents used in the testing process had been compromised. New reagents were obtained and the toxicologist obtained a positive result for cyanide at about twice the minimum lethal dose. The coroner verified this result by asking the Franklin

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County Coroner's Office to test for the presence of cyanide by using a different methodology. The Franklin County Coroner obtained virtually identical results. The coroner then listed the cause of death as homicide.

The police returned to defendant's house and executed a search warrant, pointedly telling defendant that they were looking for cyanide or other poisons. Defendant cooperated with the search, but the police found nothing. The police questioned the funeral home operators about the possible use of cyanide in the embalming process, but found no evidence that the funeral home had received cyanide from any of its suppliers. A funeral home director later recalled a conversation with defendant in which they...

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