622 F.3d 487 (6th Cir. 2010), 08-4013, Hoffner v. Bradshaw

Docket Nº:08-4013.
Citation:622 F.3d 487
Opinion Judge:JULIA SMITH GIBBONS, Circuit Judge.
Party Name:Timothy HOFFNER, Petitioner-Appellant, v. Margaret BRADSHAW, Warden, Respondent-Appellee.
Attorney:David L. Doughten, Cleveland, Ohio, for Appellant. Sarah L. Leatherman, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. David L. Doughten, Cleveland, Ohio, Michael Montgomery, Baker and Hostetler, LLP, Cleveland, Ohio, for Appellant. Sarah L. Leatherman, Thomas E. Madden, Offic...
Judge Panel:Before: BOGGS, GIBBONS, and SUTTON, Circuit Judges.
Case Date:September 23, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 487

622 F.3d 487 (6th Cir. 2010)

Timothy HOFFNER, Petitioner-Appellant,


Margaret BRADSHAW, Warden, Respondent-Appellee.

No. 08-4013.

United States Court of Appeals, Sixth Circuit.

September 23, 2010

Argued: Nov. 18, 2009.

Page 488

[Copyrighted Material Omitted]

Page 489

[Copyrighted Material Omitted]

Page 490

[Copyrighted Material Omitted]

Page 491


David L. Doughten, Cleveland, Ohio, for Appellant.

Sarah L. Leatherman, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.


David L. Doughten, Cleveland, Ohio, Michael Montgomery, Baker and Hostetler, LLP, Cleveland, Ohio, for Appellant.

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

Before: BOGGS, GIBBONS, and SUTTON, Circuit Judges.



Petitioner-appellant Timothy Hoffner appeals the district court's order denying his petition for habeas corpus. Hoffner was convicted of aggravated murder, aggravated kidnapping, and robbery and was sentenced to death. In his petition, he claims that the trial court improperly weighed aggravating and mitigating circumstances, that he received ineffective assistance of trial and appellate counsel, that statements were admitted at trial in violation of his Miranda rights, and that the cumulative effect of the errors at trial violated his constitutional rights. For the reasons set forth below, we now affirm the district court's decision and deny Hoffner's habeas petition.


The Ohio Supreme Court summarized the facts of the case as follows:

{¶ 1} On September 22, 1993, Timothy L. Hoffner, defendant-appellant, and Archie Dixon kidnapped and robbed Christopher Hammer, then drove Hammer to a remote area where they buried him alive in a shallow grave and left him to die.

{¶ 2} Hoffner was convicted of the aggravated murder, aggravated robbery, and kidnapping of Hammer, and he was sentenced to death.

{¶ 3} Hoffner and Hammer met in August 1993. For a short period of time in mid-August 1993, Hoffner, Hammer, and Dixon lived at the Toledo home of Kirsten Wilkerson, Dixon's girlfriend.

{¶ 4} In early September 1993, Michael Elting, a friend of Hammer, Hoffner, and Dixon, borrowed Hammer's car, a 1987 Dodge Daytona, to go to the movies with Hoffner and Dixon. According

Page 492

to Elting, Hoffner and Dixon discussed " how to get rid of [Hammer's] car," and Hoffner said that he knew a place where he could take the car, presumably after Hammer was killed. Approximately one month after Hammer's disappearance, Elting discovered Hammer's car at a used car lot in Toledo.

{¶ 5} On the afternoon of September 21, Dixon told Wilkerson that he and Hoffner were going to " get [Hammer] tonight." Wilkerson understood this to mean that Dixon and Hoffner were going to kill Hammer.

{¶ 6} In the early morning of September 22, Hoffner, Dixon, and Hammer went to Wilkerson's house. Once there, Hoffner and Dixon attacked Hammer. Hoffner restrained Hammer in a headlock while Dixon beat him. Hoffner tried to break Hammer's neck, and Dixon struck Hammer in the head with a wine bottle. Hoffner and Dixon then tied Hammer to a bunk-bed ladder, and Dixon went through Hammer's wallet, taking out his money, birth certificate, and Social Security card. Then Hoffner and Dixon discussed how they should dispose of Hammer's body.

{¶ 7} While Hammer remained tied to the bunk-bed ladder, Hoffner and Dixon left Wilkerson's house to dig a grave. Hoffner and Dixon returned to Wilkerson's house and they, along with Wilkerson, drove Hammer, blindfolded, to the gravesite in Hammer's car. Wilkerson stayed at the car while Hoffner and Dixon walked Hammer into the woods, where they permitted Hammer to smoke a cigarette. Then they gagged and again blindfolded Hammer, tied his hands and feet behind his back, grabbed him by his arms and legs, and dropped him into the grave, still alive. At one point, Hammer was able to remove the gag from his mouth and free one of his legs. Hoffner jumped into the grave and placed his foot over Hammer's mouth when Hammer yelled for help. Hoffner and Dixon then held Hammer down and covered him with dirt. After Hammer was completely buried, Hoffner and Dixon walked back and forth across the grave, packing down the dirt. Hoffner, Dixon, and Wilkerson then returned to Wilkerson's house in Hammer's car.

{¶ 8} After killing Hammer, Hoffner and Dixon carried out their plan to sell his car. On September 25, Dixon obtained a state of Ohio identification card with his photograph but in Hammer's name. On September 30, Hoffner and Dixon went to the automobile title bureau, where Dixon obtained a duplicate certificate of title for Hammer's car using the fraudulent ID card. Hoffner and Dixon then took Hammer's car to a used car lot, where they sold the car for $2,800.

{¶ 9} By November 8, 1993, police officers investigating Hammer's disappearance had located his Dodge Daytona at a used car lot in Toledo, had confirmed its unauthorized sale on September 30, and had identified Dixon as the prime suspect in the vehicle transaction. On November 9, police went to Wilkerson's home and arrested Dixon for forgery. The police also executed a search warrant at Wilkerson's home. During the search, police questioned Hoffner regarding Hammer's disappearance. Hoffner denied involvement but made statements implicating Dixon. Hoffner agreed to accompany police detectives downtown to make a statement. On the way to the station, Hoffner told police that Dixon had shown him the location of Hammer's body, and he then led police to the gravesite.

{¶ 10} Once at the station, police read Hoffner his Miranda rights, but Hoffner was not placed under arrest. Hoffner waived his rights and gave a taped account of Dixon's involvement in Hammer's

Page 493

murder. After Hammer's body was discovered, Dixon confessed to Hammer's murder and also implicated Hoffner. Police subsequently arrested Hoffner on November 10 at his mother's home. At police headquarters, detectives read Hoffner his Miranda rights, and Hoffner signed a waiver-of-rights form. Hoffner then gave a taped statement confessing to his part in Hammer's death.

{¶ 11} Cynthia Beisser, Deputy Coroner of Lucas County, performed an autopsy and concluded that Hammer had died of asphyxiation. According to Dr. Beisser, Hammer likely died within five minutes of being buried alive, and he might have remained conscious during the first two to three minutes.

{¶ 12} A grand jury indicted Hoffner, Dixon, and Wilkerson for the aggravated murder, kidnapping, and aggravated robbery of Hammer. Hoffner was indicted on three counts of aggravated murder. Count One of the indictment charged Hoffner with aggravated murder involving prior calculation and design. [Ohio Rev.Code Ann. § ] 2903.01(A). Count Two charged Hoffner with aggravated murder while committing kidnapping, and Count Three charged Hoffner with aggravated murder while committing aggravated robbery, both pursuant to [Ohio Rev.Code Ann. § ] 2903.01(B). Hoffner was additionally indicted for kidnapping in Count Four, aggravated robbery in Count Five, and three counts of forgery in Counts Six, Seven, and Eight.

{¶ 13} The three counts of aggravated murder each contained two [Ohio Rev.Code Ann. § ] 2929.04(A)(7) death penalty specifications. The first specification charged aggravated murder during a kidnapping, and the second charged aggravated murder during an aggravated robbery.

{¶ 14} The jury convicted Hoffner as charged and recommended the death penalty. Thereafter, the trial court sentenced Hoffner to death for the murder, to ten to 25 years each for kidnapping and aggravated robbery, and to 18 months for each forgery charge. On appeal, the court of appeals affirmed Hoffner's convictions and death sentence.

State v. Hoffner (Hoffner II), 102 Ohio St.3d 358, 811 N.E.2d 48, 51-52 (2004).

After considering the thirteen propositions of law Hoffner raised on direct appeal, the Supreme Court of Ohio rejected each of them and affirmed Hoffner's conviction and sentence on July 14, 2004. Id. at 67. The Supreme Court denied Hoffner's petition for a writ of certiorari. Hoffner v. Ohio, 543 U.S. 1058, 125 S.Ct. 870, 160 L.Ed.2d 784 (2005). While his direct appeal was pending, Hoffner also sought state post-conviction relief under Ohio Revised Code § 2953.21 on three grounds. His petition was dismissed by the trial court, and the dismissal was affirmed by the Ohio Court of Appeals on September 30, 2002. State v. Hoffner (Hoffner III), No. L-01-1281, 2002 WL 31162813 (Ohio Ct.App. Sept. 30, 2002). The Ohio Supreme Court denied leave to appeal. State v. Hoffner, 103 Ohio St.3d 1425, 814 N.E.2d 489 (2004). On June 6, 2006, Hoffner applied to reopen his appeal under Ohio Appellate Rule 26(B) in order to assert a claim of ineffective assistance of appellate counsel. As Hoffner filed the petition roughly five years after his conviction became final-long after the ninety-day window provided for by statute, see Ohio App. R. 26(B)(1)-the Ohio Court of Appeals recognized that the petition was untimely but nonetheless denied the petition on the merits. State v. Hoffner (Hoffner IV), No. L-95-181, slip op. at 3, 15, 2001 WL 279768 (Ohio Ct.App. Aug. 24, 2006). The Ohio Supreme Court affirmed

Page 494

the lower court's judgment but did so on untimeliness grounds only. State v. Hoffner (Hoffner V), 112 Ohio St.3d 467, 860 N.E.2d 1021, 1023 (2007).

On January 6, 2006, Hoffner filed a habeas petition in federal district court raising thirteen grounds for relief. Hoffner v. Bradshaw (Hoffner VII), No. 3:05-cv-00687, slip op. at 6 (N.D.Ohio July 23, 2008). On February 8, 2006, the district court held the case in abeyance to allow Hoffner...

To continue reading