557 F.3d 257 (6th Cir. 2009), 02-3552, Garner v. Mitchell

Docket Nº:02-3552.
Citation:557 F.3d 257
Party Name:William GARNER, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
Case Date:March 03, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 257

557 F.3d 257 (6th Cir. 2009)

William GARNER, Petitioner-Appellant,

v.

Betty MITCHELL, Warden, Respondent-Appellee.

No. 02-3552.

United States Court of Appeals, Sixth Circuit.

March 3, 2009

Argued: June 4, 2008.

Page 258

ARGUED:

Kelly L. Schneider, Ohio Public Defender's Office, Columbus, Ohio, for Appellant.

Benjamin C. Mizer, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

ON BRIEF:

Kelly L. Schneider, Ohio Public Defender's Office, Columbus, Ohio, Kyle E. Timken, Law Office, Columbus, Ohio, for Appellant.

Benjamin C. Mizer, William P. Marshall, Jonathan R. Fulkerson, Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, McKEAGUE, and GRIFFIN, Circuit Judges.[*]

ROGERS, J., delivered the opinion of the court, in which BOGGS, C.J., BATCHELDER, GILMAN, GIBBONS, SUTTON, McKEAGUE, and GRIFFIN, JJ., joined. DAUGHTREY, J. (pp. 271-73), delivered a separate opinion concurring in result only. COLE, J. (p. 273), delivered a separate opinion concurring in part and dissenting in part. MOORE, J. (pp. 273-84), delivered a separate dissenting opinion, in which MARTIN and CLAY, JJ., joined.

OPINION

ROGERS, Circuit Judge.

Habeas corpus relief was properly denied in this case because William Garner validly waived his Miranda rights, notwithstanding expert testimony-based in part on a test administered six years later-to the effect that Garner mentally could not have sufficiently understood the scope of what Miranda protects. In 1992, Garner burglarized and set fire to an apartment in Cincinnati, Ohio, killing five children who he knew were sleeping inside. After he was arrested and advised of his Miranda rights, Garner agreed to speak with police officers and confessed on tape to setting the fire. The confession was admitted at trial and Garner was eventually convicted by a jury on, among other charges, five counts of aggravated murder, and sentenced to death. The Ohio state courts affirmed Garner's convictions and sentence on direct and collateral review, and Garner filed this 28 U.S.C. § 2254 action in federal district court, raising twenty-three grounds for relief. The district court denied Garner's habeas petition on all twenty-three grounds, and Garner now raises four grounds on appeal, three of which relate to the Miranda waiver. Because the record shows that Garner knowingly and intelligently waived his Miranda rights before he confessed to his crimes, and because Garner's other claims lack merit, Garner is not entitled to habeas relief.

I.

On January 25, 1992, Addie F. Mack visited a local hospital emergency room in Cincinnati, Ohio for treatment. While in the hospital waiting area, Mack called her son to update him on her status, and accidentally left her purse unattended by the

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pay telephone. Defendant Garner took the purse and removed Mack's keys, driver's license, and wallet. Using the address listed on Mack's driver's license, Garner directed a taxicab to Mack's apartment at 1969 Knob Court. When the taxicab arrived at the apartment, Garner asked the driver, Thomas J. Tolliver, to wait while Garner went inside. Garner provided Tolliver with Mack's wallet as collateral for payment of the cab fare.

Using the keys found in Mack's purse, Garner entered the apartment and noticed four girls sleeping in one bedroom and two boys sleeping in a second bedroom. The children ranged from ten to thirteen years of age. At one point, one of the girls woke up and asked Garner for a glass of water. Garner provided her with water, and the girl watched television for a short time before going back to sleep. Garner carried several items from the apartment to the taxicab, including a VCR, television set, portable telephone, and a " boom box" radio. As he brought the items to the taxicab, Garner explained to Tolliver that he was removing the items because his girlfriend " threw him out" during a fight.

After removing the stolen property, Garner returned to the apartment and set three fires, two in upstairs bedrooms and one on a couch in the living room. Although the two upstairs fires smoldered and eventually went out, the couch fire completely destroyed the contents of the living room and filled the entire apartment with heavy smoke. Mack's oldest child awoke during the fire and was able to escape through a window. The five other children died of smoke inhalation. Upon leaving the apartment, Garner instructed Tolliver to take him to a convenience store, where Garner purchased snacks. The pair then drove to Garner's home at 3250 Burnet Avenue. Tolliver helped Garner carry the stolen items into Garner's home and accepted Mack's television set as payment for the cab fare.

During the investigation of the fire, the police located Tolliver based on information provided by two officers who had observed a person loading items into a taxicab near Mack's apartment shortly before the fire was reported. Tolliver told the officers that he picked up Garner at the hospital emergency room, drove to 1969 Knob Court, and waited outside while Garner entered the apartment and brought several items to the taxicab. Tolliver stated that, thereafter, he drove Garner to the convenience store and then to 3250 Burnet Avenue. After police presented to Tolliver still photographs generated from surveillance video taken at the convenience store, Tolliver identified Garner based on Garner's clothing. Tolliver also identified Garner in two photo arrays that included Garner's photograph, and officers recovered from Tolliver Mack's television set.

Based on the information provided by Tolliver, police obtained a search warrant and searched Garner's Burnet Avenue residence. Officers recovered several items that matched the descriptions given by Tolliver, including a VCR, " boom box" radio, and portable telephone. Officers also recovered Mack's keys and copies of Mack's children's birth certificates. During the search, officers arrested Garner and advised him of his Miranda rights. Garner was transported to police headquarters, where he was again advised of his Miranda rights and presented with a waiver form. Garner agreed to waive his Miranda rights and provided a taped statement recounting the events described above.

In the taped statement, Garner admitted finding Mack's purse and to taking a taxicab to Mack's apartment with the intent to " take her things." Garner stated that he noticed the children sleeping in the apartment

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and admitted carrying a number of items from the apartment to the taxicab. Garner confirmed having watched the couch catch fire and explained that he started the fire to cover fingerprints that he had left on the couch. Garner told officers that he believed that the children would smell the smoke and leave the apartment because one child had already been awake and because all of the children were old enough to escape.

On February 3, 1992, Garner was indicted and 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. Garner pleaded no contest to the theft and receipt-of-stolen-property counts, and the trial court found him guilty on those counts. On October 1, 1992, the jury convicted Garner on the remaining counts and specifications. Following a sentencing hearing, the jury recommended imposition of the death sentence. The state trial court accepted the jury's recommendation and sentenced Garner to death on the aggravated murder counts and to consecutive terms of imprisonment on all other counts.

On direct review in state court, Garner raised twenty-three assignments of error. The Ohio Court of Appeals and Ohio Supreme Court both affirmed Garner's convictions and sentence, State v. Garner, No. C-920864, 1994 WL 466508 (Ohio Ct.App. Aug.31, 1994); State v. Garner, 74 Ohio St.3d 49, 656 N.E.2d 623 (1995), and the United States Supreme Court denied certiorari, Garner v. Ohio, 517 U.S. 1147, 116 S.Ct. 1444, 134 L.Ed.2d 564 (1996). Thereafter, Garner filed two petitions for post-conviction relief in state court. Both petitions were denied by the state trial court, and the denials were affirmed by the state court of appeals. State v. Garner, No. C-960995, 1997 WL 778982 (Ohio Ct.App. Dec.19, 1997); State v. Garner, No. C-990659, 2000 WL 492074 (Ohio Ct.App. Apr.28, 2000). The Ohio Supreme Court declined to exercise jurisdiction to hear both cases. State v. Garner, 81 Ohio St.3d 1497, 691 N.E.2d 1058 (1998); State v. Garner, 90 Ohio St.3d 1404, 734 N.E.2d 835 (2000).

On November 18, 1998, Garner filed a petition for a writ of habeas corpus in federal district court, raising twenty-three grounds for relief. The district court ultimately denied all of Garner's claims and dismissed the petition. The district court granted Garner a certificate of appealability on three related claims: (1) that Garner did not knowingly and intelligently waive his Miranda rights before speaking with police; (2) that Garner's state trial counsel were ineffective for failing to investigate and argue his Miranda claims; and (3) that the state trial court erred by not providing Garner with experts to assist with his Miranda claim. After Garner filed a notice of appeal, this court issued him a certificate of appealability on a fourth claim: that the process by which the petit jury venire was selected discriminated against African-Americans.

II.

A.

The record indicates that Garner knowingly and intelligently waived his Miranda...

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