Sheppard v. Bagley

• Decision Date: 15 November 2011
• Docket Number: No. 09–3472.,09–3472.
• Citation: 657 F.3d 338
• Parties: Bobby T. SHEPPARD, Petitioner–Appellant,v.Margaret BAGLEY, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

657 F.3d 338

Bobby T. SHEPPARD, Petitioner–Appellant,

v.Margaret BAGLEY, Warden, Respondent–Appellee.

No. 09–3472.

United States Court of Appeals, Sixth Circuit.

Argued: March 9, 2011.Decided and Filed: Sept. 13, 2011.Rehearing and Rehearing En Banc Denied Nov. 15, 2011.*

ARGUED: Melissa J. Jackson, Federal Public Defender's Office, Columbus, Ohio, for Appellant. Robert E. Prather, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Melissa J. Jackson, Carol A. Wright, Allen L. Bohnert, Federal Public Defender's Office, Columbus, Ohio, for Appellant. Robert E. Prather, Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.Before: BATCHELDER, Chief Judge; MERRITT and KETHLEDGE, Circuit Judges.KETHLEDGE, J., delivered the opinion of the court, in which BATCHELDER, C.J., joined. BATCHELDER, C.J. (pp. 348–50), delivered a separate concurring opinion. MERRITT, J. (pp. 350–53), delivered a separate dissenting opinion.

OPINION

KETHLEDGE, Circuit Judge.

Sixteen years ago, an Ohio jury convicted Bobby Sheppard of aggravated murder and sentenced him to death. He now asks us to grant him a writ of habeas corpus ordering the state of Ohio to redo the penalty phase of his trial. The district court denied Sheppard's petition. We affirm.

I.

On August 19, 1994, Sheppard walked into a Cincinnati liquor store wearing a mask and carrying a gun. He was eighteen years old at the time. With him was his fourteen-year-old accomplice, Antwan Little, who had a t-shirt pulled over his head. Sheppard grabbed the store's owner, Dennis Willhide, and forced him to the ground. Willhide did not resist. Little opened the register, grabbed the cash inside, and ran out the door. Sheppard lingered for a moment, and then fired a single shot into the back of Willhide's head. The store's security camera recorded the entire robbery.

Meanwhile, a store employee, Darren Cromwell, escaped out the back door. He eventually managed to call the police. The police brought a tracking dog, who followed the robbers' scent to Sheppard's nearby house. They promptly arrested Sheppard and Little. After obtaining a warrant, the police searched the house and found numerous loose bills in a kitchen closet and a black mask under a bed. The next day, the police found the murder weapon and more cash in a bush at the house next door to Sheppard's.

Immediately after being arrested and read his rights, Sheppard exclaimed that he “didn't do a robbery.” Later at the police station, however, he admitted that he had gone to the store and shot Willhide. At first, he said he acted in self-defense—Sheppard and Little had tried to buy beer, Willhide pulled out something that Sheppard mistook for a gun, and Sheppard shot him. But Sheppard eventually abandoned that story too and confessed to a version of events similar to the one caught on tape. He insisted that he did not intend to shoot Willhide and that he wasn't “in [his] right mind” at the time, but also admitted that he shot Willhide because he did not want Willhide to identify him.

Sheppard was charged with aggravated robbery and murder. He pled not guilty. A jury convicted him as charged. During the penalty-phase trial, Sheppard argued that his crime did not warrant the death penalty because he was paranoid schizophrenic, was only eighteen, and had no significant criminal record. The jury thought otherwise, concluding beyond a reasonable doubt that the aggravating circumstances of Sheppard's crime outweighed any mitigating factors. Thus, the jury recommended the death penalty.

Shortly after reporting that verdict to the court, one of the jurors, Stephen Fox, told a member of the prosecutor's office that he had consulted an outside source, Dr. Helen Jones, during the penalty phase of the trial. The prosecutor immediately brought the matter to the trial court's attention. The court and Sheppard's counsel examined Fox during an in camera hearing. Fox said that he had asked Jones for a brief definition of paranoid schizophrenia, but that her answer had played no role in his deliberations. After hearing Fox testify, the court found that Sheppard had suffered no prejudice from Fox's misconduct. The court thereafter sentenced Sheppard to death, as the jury had recommended. Sheppard moved for a new trial, but the court denied the motion.

Sheppard appealed, advancing numerous claims under both state and federal law. The Ohio Supreme Court rejected them all. State v. Sheppard, 84 Ohio St.3d 230, 703 N.E.2d 286 (1998). Sheppard also filed a state collateral attack, which was likewise unsuccessful. State v. Sheppard, 91 Ohio St.3d 329, 744 N.E.2d 770 (2001) (per curiam).

Sheppard then filed this federal habeas petition. The district court sent the case to a magistrate judge. Over the objections of the Warden, the magistrate held an evidentiary hearing regarding Sheppard's juror-misconduct claim. Numerous witnesses testified at that hearing, including Fox, Jones, and Dr. Jeffrey Smalldon, Sheppard's mental-health expert from his original trial. The district court ultimately concluded that none of Sheppard's claims merited relief and denied the petition.

This appeal followed.

II.

We review de novo the district court's denial of Sheppard's petition. Tibbetts v. Bradshaw, 633 F.3d 436, 441 (6th Cir.2011). Sheppard filed his federal petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so that statute governs his case. See Williams v. Taylor, 529 U.S. 420, 429, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).

A.

Sheppard first claims that we should grant the writ because Fox consulted an outside source—Dr. Helen Jones—about the definition of paranoid schizophrenia during the penalty phase of his trial. Sheppard presented a similar claim to the Ohio Supreme Court, which rejected it. 703 N.E.2d at 291. A threshold question is whether we review that decision under the standards set forth in 28 U.S.C. § 2254(d). That provision says that we may not grant the writ with respect to a claim “adjudicated on the merits” in state court unless the court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law” or rested on an “unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id.

Although Sheppard's claim was adjudicated on the merits in state court, he argues that § 2254(d) does not apply here because he has presented new evidence in support of his claim. In state court, the relevant evidence comprised Fox's testimony during the in camera hearing before the trial judge and two affidavits obtained from Jones shortly thereafter. Based on that record, the Ohio courts found that what Jones had told Fox did not influence him and was consistent with the evidence Sheppard presented at trial. Sheppard now contends that he disproved these points at the federal evidentiary hearing. There, Jones testified that she told Fox that schizophrenics were “out of touch with reality” and that the disease was a “communication disorder.” According to the testimony of Sheppard's expert, Smalldon, those statements were wrong. And Fox himself, after extensive cross-examination, finally said that he was “influenced” by Jones's explanation. Because none of this testimony was presented to the Ohio courts, Sheppard argues that we should review his claim de novo rather than under the more deferential standards set forth in § 2254(d).

Sheppard's argument assumes that his new evidence was properly presented under § 2254(e)(2). That section provides in relevant part:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that—

...

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Id. This provision “imposes a limitation on the discretion of federal habeas courts to take new evidence in an evidentiary hearing.” Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1400–01, 179 L.Ed.2d 557 (2011). As interpreted by the Supreme Court, a petitioner who was not diligent in developing the factual basis of his claim cannot obtain a federal evidentiary hearing with respect to that claim unless he meets the conditions set forth in § 2254(e)(2)(B). See Williams, 529 U.S. at 437, 120 S.Ct. 1479. Sheppard does not contend he can meet those conditions, so the question whether his federal evidentiary hearing was permissible under AEDPA depends on whether he was diligent in developing the factual basis for his claim in state court.

He plainly was not. To be diligent, a petitioner must make “a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.” Id. at 435, 120 S.Ct. 1479. Sheppard did not do that here. All of the witnesses he presented in the federal evidentiary hearing were available to Sheppard when his case was still pending in the state trial court seven years before. Fox actually testified then, as noted above; Smalldon was Sheppard's own expert witness; and that Sheppard obtained an affidavit from Jones after the in camera hearing and presented it to the trial court shows that she too was available to testify. That Sheppard lacked subpoena power over these witnesses does not matter, since they were plainly willing to testify without compulsion. In short, Sheppard did virtually nothing to present to the Ohio courts the evidence he presented to the federal courts seven years later.

“[F]ederal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings.” Pinholster, 131 S.Ct. at 1401. That is precisely the situation we...