Bryan v. Bobby

• Decision Date: 15 December 2016
• Docket Number: Nos. 15-3778/3834,s. 15-3778/3834
• Citation: 843 F.3d 1099
• Parties: Quisi BRYAN, Petitioner–Appellee/Cross–Appellant, v. David BOBBY, Warden, Respondent–Appellant/Cross–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

843 F.3d 1099

Quisi BRYAN, Petitioner–Appellee/Cross–Appellant,

v.David BOBBY, Warden, Respondent–Appellant/Cross–Appellee.

Nos. 15-3778/3834

United States Court of Appeals, Sixth Circuit.

Argued: August 2, 2016

Decided and Filed: December 15, 2016

Rehearing En Banc Denied January 24, 2017

ARGUED: Katherine E. Mullin, Office of the Ohio Attorney General, Cleveland, Ohio, for Appellant/Cross–Appellee. Lori B. Riga, Office of the Federal Public Defender, Cleveland, Ohio, for Appellee/Cross–Appellant. ON BRIEF: Katherine E. Mullin, David M. Henry, Charles L. Wille, Office of the Ohio Attorney General, Cleveland, Ohio, for Appellant/Cross–Appellee. Lori B. Riga, Alan C. Rossman, Vicki R. A. Werneke, Office of the Federal

Public Defender, Cleveland, Ohio, Kathryn L. Sandford, Office of the Ohio Public Defender, Columbus, Ohio, for Appellee/Cross–Appellant.

Before: SILER, ROGERS, and DONALD, Circuit Judges.

SILER, J., delivered the opinion of the court in which ROGERS, J., joined, and DONALD, J., joined in part. ROGERS, J. (pg. 1116–17), delivered a separate concurring opinion. DONALD, J. (pp. 1117–19), delivered a separate opinion dissenting from Part II of the majority opinion.

OPINION

SILER, Circuit Judge.

Warden David Bobby ("the Warden") appeals a district court judgment partially granting the petition of Ohio death-row prisoner Quisi Bryan for a writ of habeas corpus. See 28 U.S.C. § 2254. Bryan cross-appeals the judgment to the extent it denied habeas relief.¹ For the following reasons, we AFFIRM IN PART AND REVERSE IN PART .

FACTUAL BACKGROUND

Bryan supported himself selling drugs and "hitting licks"—robbing other drug sellers. State v. Bryan , 101 Ohio St.3d 272, 804 N.E.2d 433, 444, ¶ 8 (2004). In 1995, Bryan was convicted of attempted robbery. Since being paroled in 1998, Bryan was indicted for theft and receiving stolen property. Arrest warrants were issued for him for parole violation.

In 2000, when Bryan's vehicle was stopped at a gas station, police officer Wayne Leon pulled behind him. Both men got out of their cars. The officer looked at Bryan's temporary tag, noticed it had been altered, and then took Bryan's driver's license so that he could run a police check on both Bryan and the car. When Leon radioed the police station, Bryan pulled his handgun from his coat and shot the officer in the face. Officer Leon died instantly. Bryan retrieved his driver's license and fled in his car.

Other people were present at the gas station during this incident. In addition to the individuals at the station, Kenneth Niedhammer was waiting at the traffic light next to the gas station. Niedhammer owned a private security agency and was working that day. He did not see the shooting, but heard it. Then (as he would later testify) he saw the officer "lying in the gas station"—"very bloody," "obviously an officer down"—and "at almost the same time" saw "a white Pontiac Grand Prix start to erratically leave the gas station almost running into people."

Niedhammer activated his siren and flashing lights and gave chase. Twice, Bryan stopped his car, got out, and fired at Niedhammer. Both times Niedhammer returned fire. Eventually, Bryan lost control of his car and crashed.

Bryan fled on foot. At some point, Bryan threw his handgun into a dumpster. He eventually fled to Columbus where he was arrested that same day.

PROCEDURAL HISTORY

Later that year, the trial jury convicted Bryan of two counts of aggravated murder, two counts of attempted murder (of Niedhammer), the two firearm specifications attached to each of those four counts, and the four death-penalty specifications attached to each aggravated murder. The jury also convicted Bryan of one count of carrying a concealed weapon, one count of carrying a firearm while under disability (being a convicted felon), and one count of tampering with evidence (throwing the handgun into the dumpster).

In the penalty phase, the trial court, for each aggravated murder, merged the first two death specifications (murder of a police officer engaged in his duties and murder for the purpose of killing a police officer) into one (the "killing an officer" aggravator), leaving a total of three death specifications on each aggravated-murder count: 1) killing an officer, 2) escaping arrest, and 3) course of conduct. The jury recommended a death sentence. The trial court sentenced Bryan to death and 33 1/2 years.

Bryan unsuccessfully sought relief on direct appeal, see State v. Bryan , 101 Ohio St.3d 272, 804 N.E.2d 433, 443, ¶ 1 (2004) ; id. at 471, ¶ 229 (affirming convictions and death sentence). He then tried but failed to reopen the direct appeal, see State v. Bryan , 103 Ohio St.3d 1490, 816 N.E.2d 1078 (2004) (denying reopening as untimely); State v. Bryan , 103 Ohio St.3d 1529, 817 N.E.2d 891 (2004) (striking motion for reconsideration), and tried but failed to obtain relief in state postconviction proceedings, see State v. Bryan , No. 87482, 2006 WL 2773646, at *1–2 (Ohio Ct. App. Sept. 28, 2006) (unpublished) (dismissing for lack of a final appealable order); State v. Bryan , No. 93038, 2010 WL 1918606, at *1, *12 (Ohio Ct. App. May 13, 2010) (unpublished) (affirming dismissal of postconviction petition), juris. denied , 127 Ohio St.3d 1461, 938 N.E.2d 363 (2010) (Brown, C.J., dissenting).

In 2011, Bryan timely filed his federal habeas corpus petition with sixteen claims. The district court granted Bryan's petition on his fifth claim (Batson ), Bryan v. Bobby , 114 F.Supp.3d 467 (N.D. Ohio 2015), but otherwise denied relief on the other fifteen claims.

The Warden timely appealed. The district court granted a COA on Claims 1 (death-qualifying juror Bross), 3 (improperly dismissing potential jurors for their views on the death penalty), 6 (guilt-phase prosecutorial misconduct), 7 (penalty-phase prosecutorial misconduct), 8 (ineffective assistance of counsel ("IAC") in the penalty phase), 9 (guilt-phase IAC), 15 (lethal injection),² and 16 (unconstitutional death-penalty scheme). Bryan timely filed his notice of cross-appeal. Both appeals were consolidated and are presently before us.

STANDARD OF REVIEW

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") constrains "the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court" by strengthening the presumption of correctness given to state court determination. Williams v. Taylor , 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A federal court cannot grant habeas relief unless the state court's rejection of the claim: (1) was contrary to or involved an unreasonable application of clearly established federal law, or (2) was based on an unreasonable determination of the facts. Davis v. Ayala , –––U.S. ––––, 135 S.Ct. 2187, 2198, 192 L.Ed.2d 323 (2015) ; 28 U.S.C. § 2254(d).

In analyzing whether a state-court decision is contrary to or an unreasonable application of clearly established Supreme Court precedent, a federal court may look only to the holdings of the Supreme Court's decisions, not the dicta.

White v. Woodall , ––– U.S. ––––, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014). A state-court decision on the merits is contrary to clearly established Supreme Court precedent only if the reasoning or the result of the decision contradicts that precedent. Early v. Packer , 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). A state-court decision unreasonably applies that precedent when the state court correctly identifies the governing legal rule but applies it unreasonably to the facts. Woodall , 134 S.Ct. at 1705–06. The application must have been "objectively unreasonable, not merely wrong; even clear error will not suffice." Id. at 1702 (quoting Lockyer v. Andrade , 538 U.S. 63, 75–76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (internal quotation marks omitted)).

When discerning the reasonableness of factual determinations, the "central inquiry is whether the state court decision was objectively unreasonable and not simply erroneous or incorrect." Braxton v. Gansheimer, 561 F.3d 453, 458 (6th Cir. 2009) (citing Harris v. Haeberlin , 526 F.3d 903, 910 (6th Cir. 2008) ). "[A] state-court decision is not unreasonable if ‘fairminded jurists could disagree’ on its correctness." Ayala , 135 S.Ct. at 2199 (quoting Harrington v. Richter , 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ). Ultimately, the habeas petitioner must show that the state court's decision to reject his claim was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. "[A] reviewing court must be careful not to substitute its own judgment for that of the state court by equating the more stringent standard of ‘objectively unreasonable’ with the more lax standard of ‘clear error.’ " Braxton, 561 F.3d at 458.

DISCUSSION

I. Claims 1 and 3: Juror Death Qualification

a. Legal Standard

The test for determining whether veniremembers may be excused because of their views about the death penalty is whether those views would prevent or substantially impair the performance of their duties as jurors in accordance with their instructions and oath. Wainwright v. Witt , 469 U.S. 412, 420–24, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). "[A] juror who in no case would vote for capital punishment, regardless of his or her instructions, is not an impartial juror and must be removed for cause." Morgan v. Illinois , 504 U.S. 719, 728, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). A state-court determination that a veniremember's views fall afoul of Witt is a factual finding, state-court resolution of which is presumed correct. Witt , 469 U.S. at 428–29, 105 S.Ct. 844.

b. Claim 1: Juror Bross

Bryan argues that the trial court erred in having ex parte communications with juror Edward U. Bross and then sua sponte death-qualified him again, midtrial, even though he had already been...