612 F.3d 424 (6th Cir. 2010), 07-3524, Treesh v. Bagley

Docket Nº:07-3524.
Citation:612 F.3d 424
Opinion Judge:SILER, Circuit Judge.
Party Name:Frederick TREESH, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee.
Attorney:S. Adele Shank, Law Office of S. Adele Shank, Columbus, Ohio, for Appellant. Thomas E. Madden, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. S. Adele Shank, Law Office of S. Adele Shank, Columbus, Ohio, Timothy F. Sweeney, Law Office of Timothy Farrell Sweeney, Cleveland, Ohi...
Judge Panel:Before: SILER, CLAY, and GRIFFIN, Circuit Judges. SILER, J., delivered the opinion of the court, in which GRIFFIN, J., joined. CLAY, J. (pp. 439-40), delivered a separate concurring opinion. CLAY, Circuit Judge, concurring.
Case Date:July 13, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 424

612 F.3d 424 (6th Cir. 2010)

Frederick TREESH, Petitioner-Appellant,

v.

Margaret BAGLEY, Warden, Respondent-Appellee.

No. 07-3524.

United States Court of Appeals, Sixth Circuit.

July 13, 2010

         Argued: March 4, 2010.

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         ARGUED:

         S. Adele Shank, Law Office of S. Adele Shank, Columbus, Ohio, for Appellant.

         Thomas E. Madden, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

         ON BRIEF:

         S. Adele Shank, Law Office of S. Adele Shank, Columbus, Ohio, Timothy F. Sweeney, Law Office of Timothy Farrell Sweeney, Cleveland, Ohio, for Appellant.

         Thomas E. Madden, Seth P. Kestner, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

          Before: SILER, CLAY, and GRIFFIN, Circuit Judges.

          SILER, J., delivered the opinion of the court, in which GRIFFIN, J., joined. CLAY, J. (pp. 439-40), delivered a separate concurring opinion.

         OPINION

          SILER, Circuit Judge.

         A state court jury convicted Frederick Treesh of aggravated murder and several other charges, and the court sentenced him to death. The Ohio courts upheld his conviction and sentence on direct review and in post-conviction proceedings. Treesh petitioned the U.S. District Court for the Northern District of Ohio for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied the petition but granted Treesh a certificate of appealability (" COA" ) on two of his claims. Treesh appeals those claims and requests that we grant a COA as to a third claim. For the following reasons, we AFFIRM the district court's denial of Treesh's petition, and DENY his request for an expanded COA.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On direct appeal, the Ohio Supreme Court related the facts of the case in State v. Treesh, 90 Ohio St.3d 460, 739 N.E.2d 749, 756-58 (2001), which will not be fully repeated herein.

         A. Direct Appeal

          Before trial, Treesh filed a motion to suppress his statements as violating Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After a suppression

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hearing, the trial court summarily denied Treesh's motion in a one-sentence order. The jury found Treesh guilty of five counts: aggravated felony murder, aggravated robbery, felonious assault of a peace officer, and two counts of attempted aggravated murder. Each of the five counts included a firearm specification and Treesh pleaded guilty to one count of carrying a weapon under disability. The trial court adopted the jury's sentence recommendation of death.

         The Ohio Eleventh District Court of Appeals affirmed Treesh's conviction and sentence. In particular, it rejected Treesh's arguments that the trial court erred in not suppressing his statements and that trial counsel was ineffective by failing to challenge for cause the jurors at issue here. State v. Treesh, No. 95-L-057, 1998 Ohio App. LEXIS 4886, at *25-45, 123-25 (Ohio Ct.App. Oct. 16, 1998). Treesh appealed to the Supreme Court of Ohio raising, inter alia, the two claims presented here. The Ohio Supreme Court rejected both claims, Treesh, 739 N.E.2d at 763-67, 779, and the United States Supreme Court denied Treesh's petition for a writ of certiorari, Treesh v. Ohio, 533 U.S. 904, 121 S.Ct. 2247, 150 L.Ed.2d 234 (2001).

         B. State Post-Conviction Proceedings

         The state trial court summarily dismissed Treesh's petition for post-conviction relief without an evidentiary hearing. On appeal, the Ohio Eleventh District Court of Appeals affirmed the trial court's denial of post-conviction relief. State v. Treesh, No. 97-L-080, 1998 WL 964528, at *9 (Ohio Ct.App. Dec. 18, 1998). The Ohio Supreme Court summarily dismissed Treesh's appeal, concluding that it did not present a substantial constitutional question. State v. Treesh, 85 Ohio St.3d 1476, 709 N.E.2d 848 (1999).

         C. Federal Habeas Corpus Proceedings

         In 2002, Treesh filed the instant petition for writ of habeas corpus. The district court denied Treesh's petition, Treesh v. Bagley, No. 1:02 CV 462, 2007 WL 1039081, at *64 (N.D.Ohio Mar.31, 2007), and granted a COA as to Claims 2 (the introduction of Treesh's statements were obtained in violation of his constitutional rights) and 15(c) (he was denied the effective assistance of counsel by trial counsel's failure to exclude certain jurors), id. at *67-69. We denied Treesh's request to certify additional claims for appeal.

         II. ANALYSIS

         A. Standard of Review

          We review the district court's decision to grant or deny a habeas petition de novo. Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir.2009). Because Treesh filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (" AEDPA" ), we may grant the writ " with respect to a ‘ claim that was adjudicated on the merits in state court proceedings' if the state court's decision ‘ was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ " Murphy, 551 F.3d at 493 (quoting § 2254(d)(1)). " A state-court decision is contrary to clearly established federal law ‘ if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or ‘ if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent.’ " Id. at 493-94 (quoting Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). " A state-court decision is an unreasonable application

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of clearly established federal law if it correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case, or if it either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context." Id. at 494 (quotation marks and citations omitted).

         " [C]learly established Federal law, as determined by the Supreme Court of the United States," refers to " the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412, 120 S.Ct. 1495. Moreover, " [t]he state court decision need not cite Supreme Court cases, or even evince an awareness of Supreme Court cases, ‘ so long as neither the reasoning nor the result of the state-court decision contradicts them.’ " Williams v. Bagley, 380 F.3d 932, 942 (6th Cir.2004) (quoting Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam)).

         B. Miranda Violation

         Treesh argues that the trial court admitted statements obtained from him in violation of Miranda. Specifically, he contends that he was never fully apprised of his Miranda rights, he did not knowingly and intelligently waive those rights, his request for counsel was ignored, his statements were not voluntary, and the state court's conclusions to the contrary were contrary to or involved an unreasonable application of clearly established federal law.

         1. Sufficiency of Warnings

          In Miranda, the Supreme Court established " certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation." Duckworth v. Eagan, 492 U.S. 195, 201, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). In particular, Miranda prescribed the following four warnings:

[A suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Miranda, 384 U.S. at 479, 86 S.Ct. 1602. Although these precise words do not have to be used, " the warnings [must] reasonably convey to a suspect his rights as required by Miranda. " Florida v. Powell, __ U.S. __, 130 S.Ct. 1195, 1204, __ L.Ed.2d __ (2010) (internal quotation marks and alterations omitted).

          When Officer Janusczak arrested Treesh around 12:15 a.m. on August 28, 1994, he recited a full set of Miranda warnings. He then asked Treesh if he understood his rights. After Treesh failed to respond, Janusczak began to repeat the warnings, but Treesh interrupted him and said " Yeah, yeah, I know." The Cleveland Police Department held Treesh in a cruiser at the scene of his arrest until the Euclid Police Department took over custody. Treesh was then transported to the Euclid City Jail, where he showered before being transported to the Eastlake police station around 1:30 to 2:30 a.m. When Treesh arrived at the station, he was immediately taken into a booking room where Lieutenant Doyle gave Treesh the following version of the Miranda warnings:

You understand you're under arrest? You've been arrested before.

Do you understand your Miranda rights? I'm going to ask you some questions over the next hour or so, two

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hours or three hours. You have a right to answer the questions that I ask, or you can stop me at any time. If you can't afford an attorney, one will be appointed.

Do you understand me? Okay.

         According to Doyle, Treesh twice indicated during this interview that he understood his rights. He did not affirmatively request an attorney or invoke his right to remain silent. Instead, Treesh agreed to talk to Doyle and was then interrogated for approximately one hour and forty-five minutes. Sometime during the interview, Doyle asked Treesh...

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