Tolliver v. Sheets

• Decision Date: 22 February 2010
• Docket Number: No. 08-3177.,08-3177.
• Citation: 594 F.3d 900
• Parties: Kevin A. TOLLIVER, Petitioner-Appellant, v. Michael SHEETS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

594 F.3d 900

Kevin A. TOLLIVER, Petitioner-Appellant, v. Michael SHEETS, Warden, Respondent-Appellee.

No. 08-3177.

United States Court of Appeals, Sixth Circuit.

Argued: January 20, 2010.

Decided and Filed: February 22, 2010.

ARGUED:

Karen E. Swanson Haan, Baker & Hostetler LLP, Cleveland, Ohio, for Appellant. M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

ON BRIEF:

Karen E. Swanson Haan, Daniel R. Warren, Baker & Hostetler LLP, Cleveland, Ohio, for Appellant. M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: SUHRHEINRICH, McKEAGUE, and KETHLEDGE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Kevin Tolliver was convicted in Ohio state court in 2002 of murdering his live-in girlfriend, Claire Schneider, in the early morning hours of December 29, 2001. On January 18, 2008, the district court dismissed Tolliver's petition for a writ of habeas corpus, but certified two issues for appeal: (1) whether Tolliver's statements to police on the night of Schneider's death were unconstitutionally obtained and thus were improperly admitted at trial; and (2) whether Tolliver established cause and prejudice for procedural default of an ineffective assistance of appellate counsel claim. We conclude that, while portions of Tolliver's interview with the police were obtained unconstitutionally, the trial court's error in admitting the unconstitutionally-obtained statements was harmless. We also conclude that Tolliver has not demonstrated good cause for procedural default of his ineffective assistance claim. Accordingly, we AFFIRM the district court's denial of the petition for a writ of habeas corpus.

I.

Shortly after 1:00 AM on December 29, 2001, Claire Schneider was shot in the mouth and bled to death on the floor of her apartment in Columbus, Ohio, where she lived with her boyfriend, Kevin Tolliver. Although Tolliver was present in the apartment, he did not call 911, but instead repeatedly called his ex-wife, as well as his voicemail, Schneider's voicemail, and a friend. Police eventually responded to a 911 call from Tolliver's ex-wife, and found Tolliver in the apartment with Schneider, almost entirely covered in blood — except for his hands, which he had washed. Following a three-week trial, a jury convicted Tolliver of murder. In its decision in State v. Tolliver, 2004 WL 625683, at *2 (Ohio Ct.App. Mar. 30, 2004), the Ohio Court of Appeals recounted much of the factual background to the case:

Claire Schneider began dating [Tolliver] in the fall of 1999. [Tolliver] was divorced from his ex-wife, Natasha Tolliver, with whom he shared custody of their young daughter. Claire, a student at The Ohio State University ("OSU") and a part-time nail technician, moved into Apartment 120 in the Olentangy Village Apartment complex located at 100 North Street, Columbus, Ohio, in January 2001. [Tolliver] began living with Claire in September 2001. Claire and [Tolliver] planned to move out of the apartment and into a house, once [Tolliver's] extensive remodeling of the house was completed in January 2002. Claire obtained a loan to purchase the house. Claire had been accepted into OSU's Program in International Development and was scheduled to study in the Dominican Republic from January 5, 2002 to February 16, 2002. [Tolliver] was scheduled to meet Claire in the Dominican Republic at the conclusion of the program and spend a week vacationing with her. Claire told both her father, Walter Schneider, and her friend and co-worker, Gail Isenberg Hayes, that she was excited about the upcoming trip. She never mentioned to either of them that she had any plans to marry [Tolliver].

In August 2001, Schneider had gone to Dr. Stanley McCloy complaining of sleeping difficulty, nightmares, panic attacks, and an inability to concentrate. Id. Dr. McCloy diagnosed moderate depression and prescribed Paxil. Id. Schneider's 30-pill prescription had last been filled on November 24, 2001 — meaning that at the time of her death, Schneider was no longer on Paxil. Id. Early in November, Schneider saw Dr. Wendy L. Summerhill, and "mentioned a history of depression and that she had been on Paxil, but that her depression was well controlled." (JA 1304.)

Timothy Flemming, a jeweler who had provided the wedding ring for Tolliver's first marriage, testified that early in December of 2001 he and Tolliver had discussed Tolliver's purchasing a specific type of diamond and platinum engagement ring. Tolliver, Flemming added, was planning to give the ring to Schneider when he went to visit her on her semester abroad. Flemming did not remember giving Tolliver a specific quote or discussing price.

December 28-29, 2001

On December 28, 2001, Schneider attended the closing on her new house. Apparently, there were problems with some of the documentation, and it is not clear whether the transaction was completed. Tolliver, 2004 WL 625683, at *2. Hayes, Schneider's co-worker and good friend, testified that, on the 28th, Schneider had no bruises or abrasions on her hands, face, or neck. Schneider, Hayes added, was "very stressed" about "the house situation that her and Kevin were involved with," had been "a little emotional" during the previous five days, and "was upset earlier in the day [of the 28th]." (JA 1103-04.)

That evening, around midnight, Scheider and Tolliver had drinks at a restaurant with a friend and later went to the Krome nightclub. Tolliver, 2004 WL 625683, at *2. Abby Warner, one of Schneider's co-workers, testified that at Krome she had seen Schneider and Tolliver dancing with each other, "hanging onto each other, looking into each other's eyes, look[ing] like they were having fun." (JA 1406.) Later in the evening, however, Warner saw Schneider dancing, without Tolliver, in a large group of people, and Tolliver looking down at her from a higher level, "watching her with his arms across his chest" and looking "kind of angry." (JA 1407.) Collin Bumgarner, a worker at Krome, testified that on the night of Schneider's death he saw Tolliver and Schneider as they were exiting the club, and that in the parking lot they were speaking particularly loudly. While the discussion drew his attention, Bumgarner added, it was not alarming — either to him or to the police officers with whom he was standing.

[Tolliver] and Claire returned to the apartment at approximately 12:36 a.m. . . . . At 1:15 a.m., Janet Parady, who resided in Apartment 220, was awakened to a man screaming "No, No. Don't, don't. Oh, please. Please." (Vol.I, Tr. 76.) She called 911 and reported that she thought the screaming came from Apartment 320, the apartment directly above her. She further reported that the people who lived in apartment 320 had been fighting for approximately one-half hour, and that it sounded like someone had fallen down.

Tolliver, 2004 WL 625683, at *2-*3. In fact, Tolliver and Schneider lived in the apartment (120) below Parady. A police officer responded to Parady's call, but found nothing wrong at apartment 320. He did not check apartment 120.

At approximately 1:45 a.m., Natasha Tolliver received a telephone call from [Tolliver]. [Tolliver] was sobbing and told Natasha that if she ever loved him, she would come to his apartment immediately. Natasha put her daughter in her car and drove to the apartment complex at approximately 1:55 a.m. When she arrived at [Tolliver's] apartment, she saw blood smeared on the front door. [Tolliver] was dressed in a blood-stained bathrobe and had blood on his hands and legs. She also noticed blood on the living room wall and kitchen floor. Natasha told [Tolliver] she was going to take their daughter back to the car. [Tolliver] followed her outside. When she asked [Tolliver] what had happened, he told her that he was "really in trouble." (Vol.XII, Tr. 1727.) Natasha told [Tolliver] to call the police. [Tolliver] was crying so hysterically that Natasha thought he was having a breakdown. [Tolliver] said he was going to kill himself and that he wanted to see his daughter. Natasha called 911 and reported what had happened. She then drove to the other side of the parking lot because she was afraid [Tolliver] might kill himself in front of their daughter. Peter Kovarik, the resident of Apartment 215, returned to the apartment complex at approximately 2:00 a.m. As he walked inside the building, he noticed [Tolliver], dressed in a bathrobe, standing in the hallway outside Apartment 117. [Tolliver] seemed startled to see Kovarik and ducked into the alcove outside Apartment 117. Seconds later, [Tolliver] stepped out from the alcove and asked Kovarik "how's it going?" (Vol.I, Tr. 107.) In response, Kovarik asked [Tolliver] "how is it going with you?" [Tolliver] responded "good." (Vol.I, Tr. 108.) According to Kovarik, [Tolliver] did not act as if he were upset about anything and did not ask him for assistance.

Officers [David] Shots and Paul Coulter responded to Natasha's 911 call between 2:00 and 2:05 a.m. . . . [and] the officers proceeded to [Tolliver's] apartment. [Tolliver] emerged from the apartment, dressed only in a bathrobe. The bathrobe had blood on it, as did [Tolliver's] feet and legs. [Tolliver] was talking on a cell phone (later determined to be Claire's) and holding a bloody dishtowel. [Tolliver] told the officers, "[s]he shot herself." (Vol.I, Tr. 149.) According to both Shots and Coulter, the door to Apartment 117 had smeared blood on it, as if someone had tried to wipe blood off the door. There was also blood spatter on the door jamb of Apartment 117. [Tolliver] was immediately handcuffed and placed in Shots' cruiser.

Id.

Officer Shots testified that, while Tolliver was sitting in the cruiser, Tolliver, unprompted, said "I can't believe she did this. She has only held a gun — she has never even held a gun." (JA 0314.) Tolliver then "said they were at the mall earlier, something about they closed on a house or looking to buy a house," (JA 0314), and...