LaMar v. Houk

• Decision Date: 18 August 2015
• Docket Number: Nos. 11–3131,11–3153.,s. 11–3131
• Citation: 798 F.3d 405
• Parties: Keith LaMAR, Petitioner–Appellant/Cross–Appellee, v. Marc C. HOUK, Warden, Respondent–Appellee/Cross–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

798 F.3d 405

Keith LaMAR, Petitioner–Appellant/Cross–Appellee

v.Marc C. HOUK, Warden, Respondent–Appellee/Cross–Appellant.

Nos. 11–3131

11–3153.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 2, 2014.

Decided and Filed: Aug. 18, 2015.

Rehearing En Banc Denied Oct. 21, 2015.^*

ARGUED:David L. Doughten, Cleveland, Ohio, for Appellant/Cross–Appellee. Stephen E. Maher, office of the Ohio Attorney General, Columbus, Ohio, for Appellee/Cross–Appellant. ON BRIEF:David L. Doughten, Cleveland, Ohio, Kathleen McGarry, McGarry Law Office, Glorieta, New Mexico, for Appellant/Cross–Appellee. Stephen E. Maher, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee/Cross–Appellant. James L. Hardiman, American Civil Liberties Union of Ohio Foundation, Inc., Cleveland, Ohio, Staughton Lynd, American Civil Liberties Union of Ohio Foundation, Inc., Niles, Ohio, for Amicus Curiae.

Before: CLAY, ROGERS, and KETHLEDGE, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Keith LaMar appeals a district court judgment denying his habeas corpus petition. LaMar was convicted of murdering five fellow inmates during a prison riot in Ohio; he received death sentences for four of the killings and a life sentence for the fifth. On appeal, LaMar argues that the State withheld favorable evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He also argues that the state trial court denied him due process by refusing to sever one count from the remaining charges, that there was insufficient evidence for one of the capital sentencing aggravators, and that he was denied due process by prosecutorial misconduct during his trial. The Warden, Marc Houk, cross-appeals, arguing that LaMar's petition was time-barred. The district court properly denied habeas relief.

I.

The facts leading to LaMar's convictions were summarized by the Ohio Supreme Court as follows:

On the afternoon of April 11, 1993, a group of Muslim inmates seized control of cellblock “L” (“L–Block”) at SOCF [, the Southern Ohio Correctional Facility]. The rioting inmates took several guards hostage and locked inmates considered “snitches” into various cells in the L–6 section of L–Block. The Muslim inmates maintained control of unit L–6 while two other dominant groups—the Aryan Brotherhood (a racist group of white inmates) and the Black Gangster Disciples (a prison gang)—controlled other units within L–Block.

On the day of the riot, LaMar was an SOCF inmate serving a sentence of eighteen years to life for a 1989 murder conviction. LaMar, who was not a Muslim, did not plan or participate in the prison takeover and was in the prison recreation yard when the riot began. But after the commotion began, LaMar and two other inmates, Louis Jones and Derek Cannon, went back inside L–Block to check the personal belongings in their respective cells. When the three were unable to get back outside because the Muslims had closed access to and from L–Block, LaMar said to Jones and Cannon, “Ain't no need in us staying in here getting caught up in something we're not a part of. Let's kill all the snitches and get out to the yard.”

LaMar approached Cecil Allen, a leader of the Muslim group of inmates, and asked, “if we kill the snitches, could we be let out to the yard so we don't be a part of this?” Allen consulted with the Muslim leadership and returned a few minutes later to tell LaMar that the “orders has [sic] been granted to kill the snitches.”

After Allen granted permission to “kill the snitches,” LaMar, Jones, and Cannon walked around the L–Block corridor to enlist other inmates to help them. Eventually, the group recruited Hiawatha Frezzell (a.k.a. “Pittsburgh”), Eric Scales (a.k.a. “Tiger”), Derrick Mathews, Rasheem Matthews, Albert Young (a.k.a. “Da–Da”), and Gregory Curry to join the newly formed death squad. LaMar's group proceeded to unit L–2, where they retrieved bats, shovels, and weight bars to use as weapons. The men also wore masks fashioned from T-shirts, towels, and bandannas.

After arming and disguising themselves, LaMar and his group returned to L–6. Inmate Timothy Grinnell was operating the console that controlled the cell doors within L–6. LaMar led his group to the upper tier of the cellblock and instructed Grinnell to open a cell occupied by Andre Stockton. After Grinnell complied with the demand, LaMar and Curry entered the cell and beat Stockton with a shovel and a baseball bat. Other members of the group dragged Stockton from the cell and participated in the beating.

After beating Stockton, the group went downstairs to the lower tier of L–6. LaMar yelled at Grinnell to open the cells occupied by inmates Ellis Walker and Darrell Depina. After Walker refused to comply with LaMar's command to come out of the cell, LaMar and Curry dragged him to the main floor of the cellblock and beat him repeatedly. Other members of the death squad also participated in Walker's beating. LaMar then ordered Depina out of his cell. When Depina refused, LaMar entered the cell and hit him several times before dragging him to the main floor, as he had done with Walker. LaMar continued to beat Depina with a baseball bat, striking him several times. Other members of LaMar's group joined in beating Depina, who died from his injuries.

When LaMar finished beating Depina, he ordered Grinnell to open a cell occupied by Bruce Vitale. When Vitale refused to come out of the cell, LaMar hit him on the head with a shovel. LaMar continued beating Vitale on the head and at one point knocked a tooth out of Vitale's mouth. Vitale tried to defend himself by crawling under the bed, but LaMar and Curry dragged him out of the cell and continued the beating, joined by other members of the death squad. At one point, LaMar told Jones, “I didn't bring you all in here to stand around,” when he noticed that Jones was not participating in the assault. Vitale was still alive when the group left him but died after Frezzell and another member of LaMar's group stabbed and beat him again.

LaMar continued on to a nearby cell occupied by Thomas Taylor, another suspected snitch. Before LaMar could order Taylor's cell opened, a Muslim inmate named Harris intervened and told LaMar that Taylor was under Muslim protection. LaMar angrily pushed Harris out of the way, saying, “If he [Taylor] is in there, he's a snitch. Fuck it. Kill him.” After Taylor told LaMar that he was not a snitch, LaMar agreed to spare Taylor's life, but only if Taylor would kill Albert Staiano, who was locked in an adjacent cell. To save his own life, Taylor agreed. LaMar ordered Taylor's and Staiano's cells opened and commanded one of the other inmates to give a baseball bat to Taylor. Staiano tried to run from his cell, but fell to the ground when Frezzell tripped him. Taylor hit Staiano over the head several times with the baseball bat and then, after the bat broke, with a fire extinguisher. Other death-squad members, not including LaMar, joined in the assault and stabbed Staiano repeatedly. When the beating ended, LaMar ordered Taylor to return to his cell. Taylor eventually pleaded guilty to involuntary manslaughter for his role in Staiano's death.

The death squad's next stop was a cell occupied by Michael Trocadero and four to five other inmates. LaMar ordered Grinnell to open the cell, but Grinnell refused, saying that the Muslim leadership did not want those inmates killed. As LaMar and his group began to leave L–6, it passed the cell of William Svette, an elderly inmate who used a walker to move himself around. Svette, who appeared to have been beaten earlier, cursed the death squad with obscenities and racial epithets. On LaMar's order, Grinnell opened Svette's cell, where LaMar and Curry beat Svette over the head with a baseball bat and a shovel. LaMar started to leave the cell but returned to beat Svette again after noticing that Svette's legs were moving.

Svette remained alive after the death squad left his cell. A short time later, on Grinnell's instructions to make sure all of the victims in L–6 were dead, inmate Eric Girdy struck Svette across the head twice more with a baseball bat. Svette continued to live after Girdy's beating and was still alive after inmate Robert Bass, on orders from one of the Muslim inmates, dragged Svette's body to a ramp near a prison recreation area. Svette eventually died after yet another inmate, Freddie Frakes, beat him yet again with a baseball bat.

After finishing their rampage, LaMar and the others left L–Block and joined the large contingent of inmates gathered in the recreation yard. Many of the participants in the L–6 killings remained together and discussed what had transpired. During this time, LaMar saw inmate Dennis Weaver in the recreation yard and told Curry, “I wish Weaver was in there. I'd have killed him, too.”

Early the following morning, law enforcement officers surrounded the approximately three hundred inmates gathered in the recreation yard and herded them to a gymnasium on the SOCF grounds, where the inmates were handcuffed and taken to various cells around the prison. LaMar occupied a cell in K–Block with nine other inmates: Scales, Frezzell, Weaver, William “Geno” Washington, Jeffrey Mack, Michael Childers, Ricky Rutheford, William Bowling, and John Malveaux. These ten inmates remained in the cell without incident for the rest of the day.

The next day, however, tensions began rising in the cell. LaMar and Scales began harassing Weaver, accusing him of being a snitch and telling him that “all snitches should be killed.” Weaver denied being a snitch and urged his fellow cellmates to protest what he perceived as mistreatment of the inmates who were not involved in the riot. LaMar became incensed by Weaver's comments, yelled “shut up, snitch,” punched Weaver in the face, and relegated him to a corner of the cell. Scales and Mack also joined in the attack on Weaver. LaMar later ordered that Weaver, Malveaux, Bowling, and Childers be tied up.

Later that day, LaMar

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