Smith v. Mitchell

• Decision Date: 05 June 2009
• Docket Number: No. 05-4211.,05-4211.
• Citation: 567 F.3d 246
• Parties: Kenneth W. SMITH, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

567 F.3d 246

Kenneth W. SMITH, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.

No. 05-4211.

United States Court of Appeals, Sixth Circuit.

Argued: March 10, 2009.

Decided and Filed: June 5, 2009.

ARGUED:

Kyle E. Timken, Law Office, Columbus, Ohio, for Appellant. Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

ON BRIEF:

Kyle E. Timken, Law Office, Columbus, Ohio, S. Scott Haynes, Hallowes, Allen & Haynes, Reynoldsburg, Ohio, for Appellant. Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Ohio death-row inmate Kenneth Smith ("Smith") appeals the district court's denial of his petition for habeas corpus relief from his state-court convictions and sentence. In 1996, Smith was convicted on two counts of aggravated felony murder and was sentenced to death for each aggravated-murder count. After Smith exhausted his remedies in the Ohio state courts, he filed this petition for habeas corpus pursuant to 28 U.S.C. § 2254. After the district court denied his petition, a certificate of appealability ("COA") was granted on five issues: (1) whether the prosecutor committed misconduct at trial by arguing that Smith lacked remorse and by improperly questioning Smith on cross-examination; (2) whether trial counsel provided ineffective assistance of counsel in challenging Smith's confession to police; (3) whether Smith was sentenced to death for a murder he did not commit; (4) whether the Ohio death penalty is unconstitutional as applied to Smith; and (5) whether Ohio's adoption of a one-tier system of appellate review for capital cases denied Smith due process under the United States Constitution. For the reasons discussed below, we AFFIRM the district court's denial of Smith's petition for habeas relief under 28 U.S.C. § 2254.

I. BACKGROUND

A. Factual Background

The underlying facts were set forth by the Ohio Supreme Court on Smith's direct appeal:

On May 12, 1995, sometime around 11:00 p.m., defendant-appellant, Kenneth W. Smith ("defendant"), and his brother, Randy Smith ("Randy"), brutally murdered Lewis Ray and Ruth Ray in their Hamilton, Ohio home. Lewis was severely beaten, his skull was fractured, and his throat was slit, severing his windpipe and carotid arteries. Ruth died from manual strangulation. Their home was ransacked, and money and jewelry were taken. The following morning, David L. Lester, Ruth's son, discovered the bodies of his mother and stepfather and called the police.

In the Rays' home, police observed signs of a struggle, blood on the kitchen floor, and bloody footprints throughout the house. Police found a damaged white ceramic coffee pot covered with blood stains in the trash can and a green army camouflage hat on the floor. A knife had recently been removed from a butcher block set. Police found Lewis lying on the kitchen floor and Ruth lying in the doorway between the hall and bedroom. The Rays' bedroom had been ransacked, and the contents of dressers were strewn about the floor.

Earlier in the evening of May 12, 1995, defendant and Randy had gone to the Crystal Lounge, a.k.a. Crystal Bar, with a friend, Russell C. Baker. At approximately 10:20 p.m., defendant borrowed Baker's car allegedly to pick up his wife, Brenda Smith, and some friends. By midnight, defendant had not returned Russell's car. At about that time, Brenda and Lillian Canafax, Randy's live-in girlfriend, arrived at the Crystal Lounge also looking for the Smith brothers. About forty-five minutes later, Russell and the two women decided to go to Chasteens Bar. Defendant eventually showed up at Chasteens Bar at approximately 1:30 a.m. When Russell questioned defendant about the car, defendant claimed that he was late because he had been in a fight at a gas station. Defendant showed Russell a bump on his head. At the time, Russell also noticed that defendant had changed his clothes.

At approximately 2:00 a.m., defendant left Chasteens Bar in his Monte Carlo automobile with Brenda, Randy, Lillian, and Russell. Defendant drove to his house, handed his car keys to Randy, and instructed Randy to take a stuffed pillowcase from a nearby blue automobile and put it into the trunk of the Monte Carlo. Russell accused the Smith brothers of being "out thieving with my car." Defendant replied, "Russell, I wouldn't do that." The group then drove to Buckeye Street, where Russell's brother, James, was staying. Russell soon went home and to bed.

In the early hours of May 13, 1995, defendant admitted to his friend, James Baker, that he had killed Lewis Ray and that his brother, Randy, had strangled Ruth Ray. James testified that on May 12, 1995, he was staying at his mother's apartment, when defendant and Randy arrived at approximately 1:30 a.m. in Russell's automobile. The Smiths had been to the apartment earlier in the evening before going to the Crystal Lounge. Defendant told James that he had been in a fight, and James noticed that defendant had cleaned up and changed clothes. Defendant was wearing a sweater and boots instead of tennis shoes. He was not wearing a hat. James further testified that defendant left the apartment again at 1:35 a.m. to go to Chasteens Bar.

When defendant returned to James's mother's apartment at approximately 2:45 a.m., he began to tell James about the murders. James testified that defendant told him that he had taken a hammer and "struck Louie Ray between his eye[s]," and that during this time, defendant had winked at his brother, Randy, who followed Ruth into a bedroom and strangled her. Defendant also told James that they took gold and jewelry in a pillowcase from the Rays' home.

James testified that when he asked defendant why he killed the Rays, defendant replied that they had killed them to prevent the Rays from identifying them. James testified that defendant "was talking how he sliced Lewis Ray's throat from ear to ear and just laughing about it." Defendant also told James that after he killed Lewis, he "kicked Ruth's brain in" to make sure she was dead. James testified that defendant brought a pillowcase stuffed with jewelry inside the apartment, but James asked him to take it back to the car.

Later that morning, James was driving around with defendant and Brenda. They stopped to buy cigarettes and marijuana. Defendant mentioned to James that he was concerned because he lost his green army camouflage hat in the struggle with Lewis. Eventually they drove to Russell's home. There, out of defendant's presence, James told Russell what defendant had admitted. Defendant then suggested to James that he hide the remaining jewelry. This prompted Russell to contact the police. Police later recovered the jewelry in the attic of a garage.

In addition to the testimony of James Baker, Lillian Canafax testified that she was outside Chasteens Bar arguing with Randy when he showed her a gun. She testified that she saw the same gun in her bedroom the following morning. Several days later, after she found the gun and money under the bed, she authorized police to search the apartment. Lillian also turned over to police three money orders she had purchased for Randy the day after these crimes occurred.

Another witness testified that around 11:15 or 11:30 p.m., he saw Randy standing outside a pizza parlor about a block from the Rays' residence. The witness testified that Randy had a hammer in his hand as he ducked behind the building. Russell testified that a hammer was missing from his car after he had loaned his car to defendant.

That afternoon, the police detained defendant for questioning. At the time, police observed cuts and scratches on defendant's face, and a long cut and bruises near his right collarbone. Police also searched Brenda's purse and discovered a cellophane bag containing rings, two $100 bills, and a quantity of nonsequentially numbered food stamps. Police knew that Lewis sold similar jewelry and suspected that he may have dealt in food stamps as currency.

At the police station, defendant waived his Miranda rights and admitted that he and Randy had killed Lewis and Ruth. Defendant said that while at the Crystal Bar, he and Randy had talked about going to rob the Rays, and decided that they would have to kill the Rays because they did not want the Rays to be able to identify them. Defendant told police that after arriving at the Rays' house, he and Lewis began to argue about money that defendant supposedly owed Lewis. Defendant further admitted that he picked up an object from the kitchen counter and struck Lewis, eventually overpowering him. Defendant claimed that Lewis said, "I'm going to kill you, Kenny," so defendant grabbed a knife and cut Lewis's throat. He then rolled Lewis on his side and took his wallet. Defendant said he walked to the bedroom and saw Ruth's body on the floor. Randy had choked her to death. The two men ransacked the bedroom and left in Russell's automobile.

Police apprehended Randy Smith. They found $344 in bloodstained currency on him. Randy initially denied any knowledge of the murders. Police allowed Randy to speak with his brother, who said, "They got us brother, everybody is telling on us, tell the truth, that's what I did." Randy then explained to the police his involvement in the crimes.

Later, after again being advised of his Miranda rights, defendant gave the police a written confession. In his statement, defendant said that while playing pool at the Crystal Lounge, he talked with Randy about robbing Lewis. He borrowed Russell's car and drove to a pool hall about half a block from the Ray home. Defendant stated that he and his brother walked to the Rays' house. Lewis invited the Smiths into his home. Defendant and Lewis began to argue about $2,500 that defendant owed Lewis. The men began to fight in the kitchen and defendant grabbed something from the counter and...