Garner v. Mitchell

• Decision Date: 11 September 2007
• Docket Number: No. 02-3552.,02-3552.
• Citation: 502 F.3d 394
• Parties: William GARNER, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

502 F.3d 394

William GARNER, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.

No. 02-3552.

United States Court of Appeals, Sixth Circuit.

Argued: March 7, 2007.

Decided and Filed: September 11, 2007.

ARGUED: Kyle E. Timken, Public Defender's Office, Columbus, Ohio, for Appellant. Lisa Marie Stickan, Office of the Attorney General, Cleveland, Ohio, for Appellee. ON BRIEF: Kyle E. Timken, Kelly L. Culshaw, Public Defender's Office, Columbus, Ohio, for Appellant. Lisa Marie Stickan, Office of the Attorney General, Cleveland, Ohio, for Appellee.

Before: MARTIN, MOORE, and ROGERS, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which MARTIN, J., joined. ROGERS, J. (pp. 417-25), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Petitioner-Appellant William Garner ("Garner") appeals from the district court's order denying his petition for a writ of habeas corpus. In 1992, Garner was convicted and sentenced to death in Ohio state court on five counts of aggravated murder, one count of aggravated burglary, two counts of aggravated arson, one count of theft, and one count of receiving stolen property. His convictions and death sentence were affirmed on direct appeal and collateral review in state court. Garner then filed a petition for a writ of habeas corpus in the federal district court raising twenty-three grounds for relief. Garner raises four of those issues here on appeal, arguing that: (1) he did not knowingly and intelligently waive his Miranda rights before speaking with the police; (2) his state trial counsel were ineffective for failing to investigate and argue his Miranda claim; (3) the state trial court erred by not providing Garner with experts to assist with his Miranda claim; and (4) the process by which his petit jury venire was selected discriminated against African-Americans. Because we conclude that Garner did not knowingly and intelligently waive his Miranda rights, we REVERSE the judgment of the district court and GRANT Garner a conditional writ of habeas corpus.

I. BACKGROUND

A. Facts

On the night of January 25, 1992, William Garner found a purse near a pay telephone in the emergency room area of a hospital in Cincinnati, Ohio. Inside, Garner found food stamps, keys, and the identification information of Addie F. Mack ("Mack"), a woman who was being treated at the hospital. Garner called a cab and directed the driver to take him to the address that he found inside the purse, an apartment at 1969 Knob Court in Cincinnati that was Mack's home, intending to steal whatever he found inside the apartment.

Garner went inside Mack's apartment while the cab driver, Thomas J. Tolliver ("Tolliver"), waited outside. Garner went through the rooms of the apartment, including two bedrooms in which he noticed four girls and two boys sleeping. While Garner was inside, one of the girls woke up and asked Garner for a glass of water, which he gave her, and then the child watched television for a few minutes before going back to sleep. Garner removed a number of items from the apartment including a television set, a VCR, a portable telephone, and a Sony "boom box." Garner put these items in the cab, telling the driver that he and his girlfriend had a fight and that he was moving out his belongings.

Garner went back inside the apartment and set three fires. Two of the fires, set in the mother's unoccupied bedroom and another unoccupied bedroom, smoldered but went out. The third fire was set on the living room couch. That fire quickly consumed the living room and filled the entire apartment with heavy smoke. Mack's oldest son, Rod, was awakened by the smoke and saw fire in the hallway outside his bedroom. Rod escaped out his bedroom window, but the other five children died inside.

Garner left in the cab and directed Tolliver to take him to a convenience store, where Tolliver waited while Garner purchased several items. Garner then had Tolliver take him home to 3250 Burnet Avenue. Tolliver helped Garner unload the cab and carry everything into Garner's home. Garner did not have enough cash to pay the cab fare, but Tolliver accepted a television set as payment.

Based on information provided by two police officers in the area, the police located Tolliver and interviewed him on the morning of January 26. Tolliver told the police that he had driven a man from the hospital emergency room to 1969 Knob Court, waited while the man went inside and returned with several items, driven the man to the convenience store, and driven him to 3250 Burnet Avenue. The police showed Tolliver still photographs from the convenience store's surveillance tape, and Tolliver identified his previous night's fare based on the man's clothing. The police also showed Tolliver three photo arrays, two of which contained photographs of Garner, and Tolliver identified Garner as his passenger from the night before.

Based on the information provided by Tolliver, police obtained a search warrant and searched the house at 3250 Burnet Avenue. Police recovered, among other things, a VCR, a Sony "boom box," a portable telephone, a pair of gloves, a set of keys later identified as Mack's, and copies of Mack's children's birth certificates. During the search, the police arrested Garner and advised him of his Miranda rights.

Garner was taken to police headquarters, where he was interviewed and where he, after telling police that he would waive his Miranda rights, provided a taped statement describing the events of the previous night. When asked why he had set the couch on fire, Garner told the police that he was attempting to cover fingerprints that he had left on the couch. Garner told the police that he believed the children would smell the smoke and get out of the apartment, especially because at least one child was awake and all of the children were old enough to escape.

B. Procedural History

On February 3, 1992, Garner was charged with five counts of aggravated murder, each with three death-penalty specifications, one count of aggravated burglary, two counts of aggravated arson, one count of theft, and one count of receiving stolen property. On September 25, 1992, Garner pleaded no contest to the charges of theft and receiving stolen property. The case proceeded to trial on the remaining charges, and on October 1, 1992, a jury convicted Garner on all counts and specifications. On October 16, after a mitigation hearing, the jury found that the aggravating factors outweighed the mitigating factors and recommended that Garner be sentenced to death. On November 5, 1992, the state trial court accepted the jury's recommendation and sentenced Garner to death on each of the five counts of aggravated murder. The trial court also sentenced Garner to ten to twenty-five years in prison for aggravated burglary and aggravated arson and two years in prison for theft and receiving stolen property, to be served consecutively.

On direct appeal, Garner raised twenty-three assignments of error. The Ohio Court of Appeals affirmed Garner's convictions and sentence, State v. Garner, No. C-920864, 1994 WL 466508 (Ohio Ct.App. Aug.31, 1994), as did the Ohio Supreme Court, State v. Garner, 74 Ohio St.3d 49, 656 N.E.2d 623 (1995). The United States Supreme Court denied Garner's petition for a writ of certiorari. Garner v. Ohio, 517 U.S. 1147, 116 S.Ct. 1444, 134 L.Ed.2d 564 (1996).

On September 18, 1996, Garner filed a petition for post-conviction relief in the state trial court, raising eight claims. On October 18, 1996, the trial court denied the petition, and Garner appealed. The Ohio Court of Appeals affirmed, State v. Garner, No. C-960995, 1997 WL 778982 (Ohio Ct.App. Dec.19, 1997), and the Ohio Supreme Court declined to exercise discretion to hear the case, State v. Garner, 81 Ohio St.3d 1497, 691 N.E.2d 1058 (1998). On August 6, 1999, Garner filed a second petition for post-conviction relief, which was also denied by the state trial court. The Ohio Court of Appeals once again affirmed, State v. Garner, No. C-990659, 2000 WL 492074 (Ohio Ct.App. Apr.28, 2000), and the Ohio Supreme Court again declined to hear the case, State v. Garner, 90 Ohio St.3d 1404, 734 N.E.2d 835 (2000).

On November 18, 1998, following the denial of his first petition for post-conviction relief in state court, Garner filed a petition for a writ of habeas corpus in the federal district court raising twenty-three grounds for relief. On July 29, 1999, the state filed a return of writ, and on February 28, 2001, Garner filed a traverse. On April 19, 2002, the district court denied all of Garner's claims and dismissed the petition. On July 19, 2002, the district court granted Garner a certificate of appealability on three claims: Claim 3, whether Garner knowingly and intelligently waived his Miranda rights and confessed to the crimes charged; Claim 7(E), whether Garner's trial counsel were constitutionally ineffective for failing to investigate and to argue that Garner did not knowingly and intelligently waive his Miranda rights and that Garner did not have the specific intent to kill the children; and Claim 11, whether Garner was afforded reasonable and necessary experts during the guilt and mitigation phases of his trial.

On May 17, 2002, Garner timely filed a notice of appeal. On July 26, 2002, we granted Garner's motion to hold the appeal in abeyance while he pursued a claim in state court that he is mentally retarded and therefore, pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), cannot be lawfully executed. On June 27, 2005, Garner voluntarily dismissed his Atkins claim in state court. On September 8, 2006, we granted Garner a certificate of appealability on one additional claim: whether the process for selecting the petit jury venire in his trial was unconstitutional.

II. ANALYSIS

Garner argues that the district court erred in denying him habeas relief because: (1) he...