687 F.3d 723 (6th Cir. 2012), 08-3677, Jackson v. Houk

Docket Nº:08-3677.
Citation:687 F.3d 723
Opinion Judge:MERRITT, Circuit Judge.
Party Name:Cleveland R. JACKSON, Petitioner-Appellant, v. Marc C. HOUK, Warden, Respondent-Appellee.
Attorney:James A. Jenkins, Cleveland, Ohio, for Appellant. Thomas E. Madden, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. James A. Jenkins, John B. Gibbons, Cleveland, Ohio, for Appellant. Thomas E. Madden, Stephen E. Maher, Office of the Ohio Attorney General, Columbus, Ohio, for Ap...
Judge Panel:Before: MERRITT, MARTIN, and ROGERS, Circuit Judges.
Case Date:July 24, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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687 F.3d 723 (6th Cir. 2012)

Cleveland R. JACKSON, Petitioner-Appellant,

v.

Marc C. HOUK, Warden, Respondent-Appellee.

No. 08-3677.

United States Court of Appeals, Sixth Circuit.

July 24, 2012

Argued: April 20, 2011.

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ARGUED:

James A. Jenkins, Cleveland, Ohio, for Appellant.

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

ON BRIEF:

James A. Jenkins, John B. Gibbons, Cleveland, Ohio, for Appellant.

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

Before: MERRITT, MARTIN, and ROGERS, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

Cleveland R. Jackson was convicted by an Ohio jury of two murders committed in 2002. The court sentenced him to two separate death sentences, one for each murder. The Supreme Court of Ohio on direct appeal reversed and vacated the death sentence for one of the murders based on the trial judge's errors in limiting the voir dire, but it affirmed the other death sentence. Jackson later filed a federal habeas corpus petition, claiming a number of grounds of relief, all of which the district court denied. We granted a certificate of appealability as to nine of those claims, the most difficult of which concerns the claim that the trial court violated Jackson's right to due process of law when, after denying his counsel the right to question the jury concerning pretrial publicity, it then denied his motion for a change of venue premised on the extraordinary pretrial publicity present in Lima, Ohio, the small community in which he was tried. Based on Supreme Court precedent, we are required to affirm.

I. Factual and Procedural History

On the evening of January 3, 2002, Petitioner Jackson and his half-brother, Jeronique Cunningham, went to the apartment of Shane Liles in Lima, Ohio, to rob him of money and drugs. Liles had sold Cunningham crack cocaine earlier that day. Shortly after the two arrived, Liles and Jackson discussed a drug transaction on the apartment's staircase while, nearby, Cunningham sat in the living room and watched television with three teenagers who happened to be in the apartment. One of those teenagers was Leneshia Williams.

The robbery was set into motion when Cunningham stood up and ordered the three teenagers into the kitchen. It quickly turned violent when Cunningham produced a gun and struck one of the teenagers in the jaw with it after he did not immediately comply with Cunningham's order. Jackson then brandished a gun of his own, aimed it at Liles, and forced him upstairs where he robbed him of money and drugs. Jackson then tied Liles's hands behind his back and took him downstairs to the kitchen, where Cunningham was holding captive the original three teenagers and four other individuals, including one three-year-old girl named Jayla Grant.1 Jackson ordered Liles to give him the rest of the money. When Liles responded that he had given Jackson all that he had, Jackson shot him in the back.

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Jackson and Cunningham then opened fire on everyone in the kitchen. After shooting until both of their guns were emptied of ammunition, the two men fled the scene. Though all in the kitchen were shot at least once, two were killed: Leneshia Williams and Jayla Grant.

Jackson was indicted for both murders and for aggravated robbery and attempted aggravated murder as to the surviving shooting victims. In a trial completed immediately prior to Jackson's trial, Cunningham was also charged with, convicted of, and sentenced to death for the same two murders. His habeas appeal is separately pending before this court. The murder counts each contained two death-penalty specifications, one alleging that the murder was committed as part of a course of conduct to kill or attempt to kill two or more persons, and one alleging that the murder was committed during an aggravated robbery and with prior calculation and design. At trial, Jackson denied committing the murders. He took the stand in his own defense, appeared to attribute the robbery principally to Cunningham, and denied all of the shootings save for that of Liles, which, Jackson maintained, only occurred when his gun accidentally went off. Jackson claimed that Cunningham's gun also malfunctioned after Cunningham attempted to shoot one of the others in the kitchen, that Cunningham then took Jackson's gun, and that Jackson heard one shot as he ran out of the apartment. He claimed to find out only later that others had been shot, though he also conceded meeting with Cunningham shortly thereafter and fleeing the scene in a car together. Unpersuaded by this account, the jury convicted Jackson of all counts and specifications, and, after a penalty-phase hearing, imposed a sentence of death for each murder count. The court followed the jury's verdict and separately sentenced Jackson to death for each murder.

The preceding factual account is drawn from Jackson's direct appeal to the Supreme Court of Ohio. State v. Jackson, 107 Ohio St.3d 53, 836 N.E.2d 1173, 1183-85 (2005). That court rejected all of Jackson's claims of error as to his guilt, but accepted one claim of error challenging one of his two death sentences: as to the murder count pertaining to three-year-old Jayla Grant, the court determined that the trial court abused its discretion in handling the jury voir dire by denying Jackson's request to inform potential jury members— some of whom had expressed tendencies toward automatic imposition of the death penalty for child killers— that one of the victims was a young child. Id. at 1187-92. It found that this error did not affect the validity of the other death sentence. Id. at 1192. Though it remanded the Grant count for resentencing, the result of the direct appeal was that Jackson's death sentence, if only for the murder of Leneshia Williams, became final.

After unsuccessfully pursuing post-conviction relief in the Ohio state courts, Jackson filed a petition for a writ of habeas corpus in federal district court, pursuant to 28 U.S.C. § 2254. His petition raised twenty claims. The district court denied them all and declined to grant a certificate of appealability on any of them. Jackson v. Houk, No. 3:07CV0400, 2008 WL 1946790 (N.D.Ohio May 1, 2008).

We then certified nine of Jackson's habeas claims for appellate review: (1) the trial court improperly limited Jackson's ability to uncover juror bias against him in connection with pretrial publicity which led it to deny his motion for a change of venue; (2) the trial court improperly prohibited trial counsel from examining prospective jurors about potential bias against someone accused of killing a young child; (3) the trial court improperly prohibited

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trial counsel from conducting a careful and searching examination of prospective jurors about potential bias against someone accused of killing a young child; (4) the trial court improperly prohibited trial counsel from examining prospective jurors about whether they could consider a life sentence for the killing of a young child; (5) the trial court improperly prohibited trial counsel from examining prospective jurors who expressed reservations about imposing the death penalty; (6) the trial court improperly excused prospective jurors who expressed reservations about imposing the death penalty; (7) the cumulative effect of the trial court's errors in voir dire amounted to a denial of a fundamentally fair trial; (8) trial counsel rendered ineffective assistance of counsel throughout trial; and (9) trial counsel rendered ineffective assistance of counsel by failing to investigate and introduce helpful and explanatory mitigating evidence at trial. We will address each in turn, beginning with Jackson's venue claim.

One final point, before turning to the merits of these claims. Jackson filed his habeas petition subsequent to the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). This fact significantly constrains our review of most of Jackson's claims. Where a claim was not overlooked but was adjudicated on the merits in a state court proceeding, we may grant the writ only if the state court adjudication " (1) 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 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). In the recent case of Greene v. Fisher, 565 U.S. __, 132 S.Ct. 38, 43-44, 181 L.Ed.2d 336 (2011), a unanimous Supreme Court observed that the AEDPA standard " is difficult to meet, because the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction." (internal quotation marks and citations omitted.)

II. The Denial of Jackson's Motion for a Change of Venue

We address first Jackson's claim that the trial court constitutionally erred when it denied his motion for a change of venue premised on the extensive pretrial publicity surrounding the murders, while at the same time denying him the right to question the jury about any specific details concerning a juror's knowledge of the publicity. Jackson presented this claim on direct appeal, but the Supreme Court of Ohio did not address it at all. Because de novo review leads to affirmance, we need not decide whether AEDPA deference applies under the rule of Harrington v. Richter,...

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