Smith v. Bradshaw

• Decision Date: 19 January 2010
• Docket Number: No. 07-4305.,07-4305.
• Citation: 591 F.3d 517
• Parties: Steven SMITH, Petitioner-Appellant, v. Margaret BRADSHAW, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

591 F.3d 517

Steven SMITH, Petitioner-Appellant, v. Margaret BRADSHAW, Respondent-Appellee.

No. 07-4305.

United States Court of Appeals, Sixth Circuit.

Argued: July 29, 2009.

Decided and Filed: January 19, 2010.

ARGUED:

Joseph E. Wilhelm, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

ON BRIEF:

Joseph E. Wilhelm, Federal Public Defender's Office, Cleveland, Ohio, Henry F. DeBaggis, Assistant United States Attorney, Cleveland, Ohio, for Appellant. Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: BATCHELDER, Chief Judge; and BOGGS and GILMAN, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which BATCHELDER, C.J., joined. GILMAN, J. (pp. 527-30), delivered a separate concurring opinion.

OPINION

BOGGS, Circuit Judge.

Steven Smith is an Ohio inmate sentenced to death for raping and murdering a six-month-old baby. We affirm the district court's denial of a writ of habeas corpus.

I. Background

On September 28, 1998, Smith was living with his girlfriend, Keysha Frye, and her two young daughters, two-year-old Ashley and six-month-old Autumn. That evening, Smith drank three beers while he, Frye, and the children visited a friend. On the way home, Smith bought a twelve-pack of beer and drank one in the car. Once back at Frye's apartment, Smith and Frye put the children to bed, then watched television and had sex. Frye went to bed around 11:00 p.m., but Smith stayed up drinking.

At approximately 3:22 a.m., Smith woke Frye by placing Autumn's naked body next to her. Frye realized that Autumn was not breathing and accused Smith of killing her; Smith threw an alarm clock and said that she was not dead. Frye quickly took Autumn's body and Ashley to a neighbor's apartment, screaming that Smith had killed her baby. Smith followed, exclaiming that he "didn't do anything" and asking "why was she fucking lying," but the neighbor did not let him in. A short while later, another neighbor observed Smith throw a trash bag in the dumpster and heard Smith say that he did not do anything and that he was leaving. This neighbor convinced Smith not to leave.

When the police arrived, they saw no signs of forcible entry in Frye's apartment, and they found the television on and extremely loud. They discovered Autumn's pink baby sleeper under the coffee table and Smith's cutoffs and jeans near the couch. They also found whitish-colored material, later determined to be pieces of shredded diaper, scattered on the floor in the same area, and piles of Autumn's hair were found on the coffee table. The police also retrieved a garbage bag from the outside trash dumpster that contained a torn baby diaper, Smith's t-shirt, and ten empty beer cans.

When approached by an officer, Smith preemptively exclaimed, "I didn't do it, I didn't do it"; he smelled of alcohol and swayed back and forth while speaking. At the police station, Smith told detectives that he had drunk four beers that night. He stated that he and Frye had gone to bed at midnight and that he was awakened by Frye, who was accusing him of killing Autumn. A month later, Smith changed his story, telling police that he had consumed nine beers, and that he awoke downstairs at 3:25 a.m. and, believing that something was wrong with Autumn, carried her upstairs. He also denied putting trash in the dumpster.

Smith was charged with aggravated murder for raping and killing a child under the age of thirteen. At trial, the coroner who performed the autopsy testified extensively, using autopsy photographs and slides. He explained that Autumn died from compression asphyxia and blunt trauma to the head. The injuries to her head and the abrasions on her forehead, cheek, and chin indicated that she was lying on her abdomen and that her face had been forced into a pillow. Contusions to her buttocks indicated that they were subject to pressure from the weight of another person. Other bruising and abrasions revealed that Autumn had resisted the attack. She also suffered subarachnoid and retinal hemorrhages consistent with shaken baby impact syndrome, indicating that she had been restrained, and she was missing hair from the back of her head, suggesting that the attacker had forcefully grasped it. Furthermore, her clitoris was red, her vagina was ten times the normal size for a baby her age, and there was a hemorrhage in her anus, all indicative of attempted penetration. Additionally, Autumn's blood was found on two seat cushions and on her pink sleeper. No semen was found.

Smith offered the testimony of a board-certified forensic toxicologist to support his intoxication defense. The police tested Smith's blood-alcohol level at 11:00 a.m. on September 29, approximately seven hours after he was arrested, as 0.123%. The toxicologist testified that, based on this result, Smith's blood-alcohol level would have been at least 0.36% and possibly as high as 0.60% at 11:30 p.m. on September 28. Smith also offered evidence that he drank as many as fifteen beers that night, and that he was an alcoholic who drank heavily and frequently blacked out.

The jury found Smith guilty as charged and sentenced him to death. The Ohio Supreme Court affirmed Smith's conviction and sentence on direct appeal, State v. Smith, 97 Ohio St.3d 367, 780 N.E.2d 221 (2002), and the Ohio Court of Appeals denied his petition for postconviction review. The district court denied Smith's petition for a writ of habeas corpus. Smith appeals, having received a certificate of appealability on four claims: (1) that the prosecutor improperly commented on his failure to testify; (2) that the penalty-phase jury instructions were misleading; (3) that counsel was constitutionally ineffective for failing to object to the misleading penalty instructions and for not requesting clarifying instructions; and (4) that the trial court should have instructed the jury on the lesser included offense of involuntary manslaughter.

II. Standard of Review

When a state court has "adjudicated ... the merits" of a defendant's claim, we may only grant a writ of habeas corpus if the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). An adjudication on the merits is contrary to clearly established Supreme Court law if, for example, the "state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An adjudication on the merits unreasonably applies Supreme Court law if, for example, "the state court identifies the correct governing legal rule ... but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407, 120 S.Ct. 1495. The application must be "objectively unreasonable," not merely incorrect. Id. at 409-10, 120 S.Ct. 1495. When a state court's adjudication on the merits is either contrary to or an unreasonable application of clearly established Supreme Court precedent, we "must then resolve the claim without the deference AEDPA otherwise requires." Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).

III. Prosecutorial Misconduct

Smith's first claim is that the prosecutor improperly commented on his failure to testify during the guilt phase by telling the jurors to ask themselves, "[d]id [Smith] claim accident, that he didn't do this on purpose?" See Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). This claim is procedurally defaulted: counsel failed to object to the comment at trial, and the state court enforced the procedural bar by reviewing the claim only for plain error. See Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.2000).

Smith asserts that we should not enforce his default. But his claim that the state courts do not regularly enforce Ohio's contemporaneous objection rule is "squarely foreclosed" by our precedent. Nields v. Bradshaw, 482 F.3d 442, 451 (6th Cir.2007) (holding that Ohio's state courts have not "applied its contemporaneous objection rule unevenly and inconsistently" with regard to prosecutorial misconduct claims). And he cannot excuse his default through the ineffectiveness of counsel because he cannot show that counsel's failure to object to this one comment — thereby drawing attention to it — was deficient. Lundgren v. Mitchell, 440 F.3d 754, 774-75 (6th Cir.2006) ("[A]ny single failure to object [to closing arguments] usually cannot be said to have been error.... [D]efense counsel must so consistently fail to use objections, despite numerous and clear reasons for doing so, that counsel's failure cannot reasonably have been said to have been part of a trial strategy or tactical choice.").

IV. Misleading Jury Instructions

We address Smith's second and third claims together because both relate to the penalty-phase jury instructions. Smith's second claim is that the penalty instructions violated Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), because they "affirmatively misled [the jury] regarding its role in the sentencing process," Romano v. Oklahoma, 512 U.S. 1, 9, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994). Under Ohio law, the jury must unanimously recommend the death penalty; thus, "a solitary juror may prevent" it. State v. Brooks, 75 Ohio St.3d 148, 661 N.E.2d 1030, 1042 (1996). Smith contends that the instructions wrongly suggested that the jury was required to reject the death penalty unanimously, rather than to choose it unanimously.

This claim is also procedurally defaulted. Counsel did not object to the instructions as given. Smith wrongly suggests that the state court did not enforce...