586 F.3d 383 (6th Cir. 2009), 06-4606, Webb v. Mitchell

Docket Nº:06-4606.
Citation:586 F.3d 383
Opinion Judge:SUTTON, Circuit Judge.
Party Name:Michael D. WEBB, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
Attorney:Keith A. Yeazel, Law Office, Columbus, Ohio, for Appellant. Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. Keith A. Yeazel, Law Office, Columbus, Ohio, James D. Owen, The Owen Law Firm, Columbus, Ohio, for Appellant. Robert E. Prather, Office of the Ohio Atto...
Judge Panel:Before: ROGERS, SUTTON and GRIFFIN, Circuit Judges.
Case Date:November 05, 2009
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 383

586 F.3d 383 (6th Cir. 2009)

Michael D. WEBB, Petitioner-Appellant,

v.

Betty MITCHELL, Warden, Respondent-Appellee.

No. 06-4606.

United States Court of Appeals, Sixth Circuit.

November 5, 2009

Argued: June 10, 2009.

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ARGUED:

Keith A. Yeazel, Law Office, Columbus, Ohio, for Appellant.

Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

ON BRIEF:

Keith A. Yeazel, Law Office, Columbus, Ohio, James D. Owen, The Owen Law Firm, Columbus, Ohio, for Appellant.

Robert E. Prather, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: ROGERS, SUTTON and GRIFFIN, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

A jury convicted Michael D. Webb of the aggravated murder of his son, Michael (" Mikey" ) Patrick Webb, and at the jury's recommendation a state trial court sentenced him to death. The Ohio courts affirmed his convictions and sentence on direct review and denied postconviction relief. Webb sought a writ of habeas corpus, which the district court denied. We affirm.

I.

Webb lived in a modest home in Goshen, Ohio, with his wife Susan, two teenage daughters, Tami and Amy, and two young sons, Charlie and Mikey. State v. Webb, 70 Ohio St.3d 325, 638 N.E.2d 1023, 1026 (1994). Early on the morning of November 21, 1990, Tami awoke in her basement bedroom to the smell of gasoline. Id. at 1027. Webb soon came into her room and told a frightened Tami that he smelled gasoline and that he thought someone had " rigged" the house. Id. Without telling Tami to get out of the house, Webb proceeded upstairs while Tami hid under her covers. Id.

Soon after Webb went upstairs, an explosion occurred on the main floor of the house, throwing Webb from the hall outside the master bedroom into the bathroom. Id. at 1027-28. Webb's wife and youngest son were asleep in the master bedroom at the time, and Mikey slept in his bedroom across the hall. Id. Tami and Amy safely escaped the resulting fire through the exterior basement door as soon as they heard the explosion. Id. at 1027. Webb escaped the house by breaking through the bathroom window, cutting himself and bloodying his hands in the process. Id. Firefighters rescued Webb's wife and youngest child from the master bedroom. Id. Mikey died from smoke inhalation, apparently while hiding under his bed to seek refuge from the flames. Id.

Law enforcement investigated the cause of the fire. Fire Chief Murphy discovered a plastic gasoline can from Webb's garage in the front foyer as well as a " very definite pour pattern or trailer" leading down the hallway from the foyer to the main floor bedrooms. Id. From there, trailers led into both bedrooms, including over Mikey's bed to the rear wall of his bedroom. Id. An unignited gasoline trailer also led downstairs to the basement, where gasoline

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had been poured on Tami's and Amy's beds. Id. Several pieces of physical evidence linked Webb to the fire: a two-liter soda bottle containing gasoline found downstairs, which had Webb's fingerprints on it; Webb's partial bloody fingerprints on a matchbook outside, with the prints corresponding to the " peculiar way" Webb held a matchbook when lighting matches; and a plastic gas can from Webb's garage found in the foyer. Id. Webb, it turns out, had a motive as well: He began an extramarital affair in 1990 and told his mistress he planned to leave his wife so he could be with her, id.; and he had just finished draining $102,000 (plus interest) from his daughters' trust accounts within the past year, a theft that would be hidden by their deaths because he was their heir.

An Ohio jury convicted Webb of the aggravated murder of Mikey and eleven other counts not relevant to this appeal. Id. After a mitigation hearing, the jury recommended the death penalty, and the trial court agreed. Id. On direct review, the state court of appeals and the Ohio Supreme Court affirmed Webb's conviction and death sentence. Id. at 1028, 1038. Webb sought state post-conviction relief, which the Ohio courts denied. See State v. Webb, No. CA96-12-108, 1997 WL 656312 (Ohio Ct.App. Oct. 20, 1997), appeal denied, State v. Webb, 81 Ohio St.3d 1443, 690 N.E.2d 15 (1998). He also filed a motion for reconsideration and another motion seeking reopening of his direct appeal, both to no avail. See State v. Webb, 85 Ohio St.3d 365, 708 N.E.2d 710, 711 (1999); State v. Webb, 70 Ohio St.3d 1472, 640 N.E.2d 845, 845 (1994).

In 1998, Webb filed a federal petition for habeas corpus, which (as amended) raised fifteen claims for relief. The district court rejected the petition because Webb had procedurally defaulted several claims and the remainder failed on the merits. The district court granted a certificate of appealability on seven claims.

II.

Because Webb filed his federal habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act, we may grant the writ with respect to claims " adjudicated on the merits in State court proceedings" only if the state-court adjudication " resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or " resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2).

A.

Webb claims that Ohio violated his due process rights by failing to disclose a police report issued five days after the fire. See Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The report says that Tracy Jordan, a student at Goshen High School, thought that Bob Gambrell, another student and Amy Webb's ex-boyfriend, smelled like gasoline the morning of the fire. The report does not say who told this to the police. When officers spoke with Jordan, according to the report, she denied that Gambrell smelled like gasoline the morning of the fire. But she did tell police that Gambrell said he " hoped it was Amy's house that burnt up," and that Gambrell did not wear his red letterman's jacket to school that morning, as he often did. App'x 3202.

The report also recounts the officer's conversation with Gambrell. Gambrell at first denied even being at school that day, but then " changed his mind" and disputed Jordan's recollection of their conversation

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that morning. App'x 3203. According to Gambrell, he said " I hope it wasn't Amy's house that burnt up." Id. (emphasis added). Gambrell also claimed he left his jacket in a friend's car and would bring it in for examination in a few days. The record does not disclose what happened to the jacket or whether the police ever investigated Gambrell further.

Webb claims that this information, together with other evidence, shows that Gambrell committed the crime. Gambrell was the ex-boyfriend of Amy Webb; he " practically liv[ed]" at the Webb household prior to the fire, eating dinner with the family " [a] couple of times a week" according to Webb's then-wife, App'x 3510-11; he knew the layout of the house; Webb believed that Gambrell " cannot stand him" because Webb " ran him out of the house" after catching him fooling around with Amy, R.37, Ex. 2788; and Tami saw someone wearing a red sweatshirt " staring" at her just before the explosion. App'x 1868. Webb claims that, when these facts are added to the information in the police report-that Gambrell may have smelled like gasoline that morning, that Jordan allegedly heard Gambrell say he " hoped it was Amy's house that burnt up," App'x at 3202, and that Gambrell did not wear his red letterman's jacket to school that morning-it undermines confidence in the jury's verdict.

Webb did not raise his Brady claim in the state proceedings, but the district court excused his procedural default and reviewed the claim on the merits because Webb did not learn of the police report until federal habeas discovery. Because this claim was not " adjudicated on the merits in State court proceedings," we give fresh review to the merits of this claim-as the State concedes we should. See Danner v. Motley, 448 F.3d 372, 376 (6th Cir.2006).

A Brady claim contains three elements: (1) the evidence " must be favorable to the accused" because it is exculpatory or impeaching; (2) the State must have suppressed the evidence, whether willfully or inadvertently, and (3) the evidence must be material, meaning " prejudice must have ensued" from its suppression. Strickler v. Greene, 527 U.S. 263, 282, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). The key question here is the last one: Did the failure to turn over the police report prejudice Webb's case? Put another way, is there " a reasonable probability that" the report " would have produced a different verdict" ? Id. at 281, 119 S.Ct. 1936.

The 1991 police report does not satisfy this standard. Webb's theory that Gambrell, not he, set the fire rests on an implausible chain of events. If Webb is right, here is what happened: Gambrell retrieved Webb's gasoline container from Webb's garage, entered the house through the basement door and doused two floors of the house with gasoline. Gambrell hid from view while Webb and Tami talked. Gambrell stared at Tami in her basement bedroom without being identified (even though Tami knew Gambrell as her sister's ex-boyfriend), then sneaked back upstairs. Gambrell entered the hallway connecting the upstairs bedrooms, opened the closet near the foyer and started a fire in that closet...

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