642 Fed.Appx. 498 (6th Cir. 2016), 14-3070, Clement v. Kelly

Docket Nº:14-3070
Citation:642 Fed.Appx. 498
Opinion Judge:MARTHA CRAIG DAUGHTREY, Circuit Judge.
Party Name:REGINALD CLEMENT, Petitioner-Appellant, v. BENNIE KELLY, Warden, Respondent-Appellee
Attorney:For REGINALD CLEMENT, Petitioner - Appellant: Paul A. Mancino, Jr., Mancino, Mancino & Mancino, Cleveland, OH. For BENNIE KELLY, Warden, Respondent - Appellee: Thelma T. Price, Assistant Attorney General, Office of the Attorney General of Ohio, Columbus, OH; Hilda Rosenberg, Office of the Attorne...
Judge Panel:BEFORE: DAUGHTREY, COOK, and WHITE, Circuit Judges.
Case Date:February 16, 2016
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 498

642 Fed.Appx. 498 (6th Cir. 2016)

REGINALD CLEMENT, Petitioner-Appellant,

v.

BENNIE KELLY, Warden, Respondent-Appellee

No. 14-3070

United States Court of Appeals, Sixth Circuit

February 16, 2016

NOT RECOMMENDED FOR PUBLICATION

Editorial Note:

Sixth Circuit Rule 28(g) limits citation to specific situations. Please see Rule 28(g) before citing in a proceeding in a court in the Sixth Circuit. If cited, a copy must be served on other parties and the Court.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO.

For REGINALD CLEMENT, Petitioner - Appellant: Paul A. Mancino, Jr., Mancino, Mancino & Mancino, Cleveland, OH.

For BENNIE KELLY, Warden, Respondent - Appellee: Thelma T. Price, Assistant Attorney General, Office of the Attorney General of Ohio, Columbus, OH; Hilda Rosenberg, Office of the Attorney General of Ohio, Cincinnati, OH.

BEFORE: DAUGHTREY, COOK, and WHITE, Circuit Judges.

OPINION

Page 499

MARTHA CRAIG DAUGHTREY, Circuit Judge.

Petitioner Reginald Clement is an Ohio state prisoner seeking federal habeas corpus relief based on the allegedly improper admission of an involuntary statement he made while in the hospital and an alleged Confrontation Clause violation, both of which occurred during his trial for the murder of Gregory Williams. A jury convicted Clement of aggravated murder, aggravated robbery, kidnapping, and having a weapon while under disability, and the trial judge imposed a life sentence. The district court dismissed Clement's habeas petition, concluding that relevant rulings by the Ohio state courts were neither contrary to nor unreasonable applications of established federal law. We agree and affirm.

Page 500

FACTUAL AND PROCEDURAL BACKGROUND

The events leading to Gregory Williams's death began with a phone call to Williams, asking him to bring marijuana to the home of brothers Dominic and Alfred Rodgers to sell to them and their cousin, Demetrius Williams, who was also present at the house. In point of fact, the trio planned to rob Gregory Williams, and they invited Lavonte Green and petitioner Reginald Clement to join them in the robbery. Both Green and Clement had guns.

In the meantime, Gregory asked his friend Tramel Wallace to drive him to the Rodgerses' house. When Wallace and Gregory pulled into the driveway, Green jumped into the back seat of the car and pointed a gun at Gregory, who then climbed over the seat into the back of the car and began to wrestle with Green for the gun. As they wrestled, the gun discharged, but no one was hurt. Wallace quickly backed the vehicle out of the driveway, but when he stopped backing up in order to drive forward, Clement stuck his arm in the passenger-side window and shot Gregory in the chest as he struggled with Green. As Wallace drove away, Green jumped out of the car. Wallace drove to a nearby police station to get help for Gregory, who later died from his wound. Several days later, police questioned Clement in a local hospital, where he was being treated for a gunshot wound to his leg, and took a statement from Clement, who denied shooting Gregory.

An Ohio jury found Clement guilty of aggravated murder, aggravated robbery, kidnapping, and having a weapon while under disability. He was sentenced to life imprisonment with parole eligibility after 36 years.

On direct appeal, Clement argued that the trial court erred (1) in admitting the written statement he provided police while he was in the hospital in significant pain and on pain killers, because it was involuntary under those circumstances and (2) in allowing the state to offer Alfred Rodgers's prior testimony from Green's trial, including his statement implicating Clement as the shooter, as substantive evidence of guilt. The Ohio Court of Appeals overruled both assignments of error. The court first found no evidence to support the assertion that Clement's statement was involuntary or made without full awareness of the consequences and a valid waiver of his rights. The court further ruled that Alfred Rodgers's prior testimony was not hearsay and could be admitted as substantive evidence of guilt at trial because it had been made at Green's trial six weeks earlier under penalty of perjury and subject to cross-examination. The Ohio Court of Appeals thus affirmed Clement's conviction, and the Ohio Supreme Court denied further review. See State v. Clement, No. 94869, 2011-Ohio-1555, 2011 WL 1168133; State v. Clement, 129 Ohio St.3d 1412, 2011-Ohio-3244, 949 N.E.2d 1005 (Table) (Ohio 2011).

After Clement's efforts to obtain relief through collateral state proceedings proved unsuccessful, he filed a petition for a writ of habeas corpus in federal district court, in which he raised 12 grounds for relief. Only two are at issue in this appeal: (1) " Petitioner was denied his constitutional rights under the Fifth and Sixth Amendment[s] where any statement that he gave to the police was involuntary and violated his constitutional rights," and (2) " Petitioner was denied his right of confrontation and cross-examination when the trial court allowed a statement from a witness to be used as substantive evidence rather than limiting the use of that evidence to impeachment only."

The matter was referred to a magistrate judge, who concluded that Clement procedurally

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defaulted his Sixth Amendment claim regarding his hospital statement, a default that was not excused by proof of actual innocence; that the state court reasonably determined that Clement's hospital statement was voluntary under the Fifth Amendment; and that the state court's admission of Alfred Rodgers's prior testimony was not contrary to or an unreasonable application of clearly established federal law. The district court adopted that recommendation, denied the petition, and issued a certificate of appealability limited to Clement's Confrontation Clause claim. We then expanded the certificate of appealability to add his claim that his hospital statement was obtained in violation of his Fifth Amendment rights.

DISCUSSION

In a habeas proceeding, we review the district court's legal conclusions de novo and its findings of fact for clear error. Davis v. Lafler, 658 F.3d 525, 530 (6th Cir. 2011) ( en banc ). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (1996), an application for a writ of habeas corpus may not be granted unless the state court adjudication on the merits of the claim " 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," or " resulted in a decision that was based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d). Section 2254(d)'s " highly deferential standard . . . demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (internal quotation marks and citations omitted).

A state court's decision is contrary to clearly established federal law " if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court unreasonably applies clearly established law if it identifies the correct legal principle but unreasonably applies it to the facts of the case. Id. " For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law." Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (internal quotation marks and citation omitted).

Involuntary Statement Claim

Three days after Gregory Williams was murdered, Clement was questioned by Detective Volek at a hospital, where Clement was being treated for a gunshot wound to his leg. Clement was under arrest at the time of questioning, and a deputy was stationed outside his room. When he arrived at the hospital that day, Volek checked with the nurses and learned that Clement was " okay for conversation." Medical records indicate that 30 minutes before Volek's visit, Clement's self-reported pain level was eight on a scale of ten and that he had been given two Percocet tablets. Nevertheless, Clement appeared alert, coherent, and engaged, and he was talking with family when Volek entered his room. He was sitting up in bed, and he did not grimace or groan during the interview. However, when asked whether he was hurting, Clement said, " Yes."

Volek asked Clement's family to leave the room, and they complied. He then read Clement a form explaining his constitutional rights, and Clement answered that he understood each of them. Clement also stated that he did not have any questions

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about the explanation of rights, and he read and signed a waiver form. After orally answering Volek's questions, Clement indicated that he would like to make a written statement. Volek gave him a printed statement form, which again explained his constitutional rights. Clement initialed the form to indicate that he understood his rights, that he wished to make a statement, and that he was not presently under the influence of alcohol, drugs, or narcotics. Clement then provided the following " very well-written" statement in " very neat" penmanship: I was riding in the car with Lavonte [Green]. Demetrius Williams called me up to his friend's house on South Green. When I got there, Demetrius and another guy was waiting on somebody to bring...

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