99 F.3d 1302 (6th Cir. 1996), 93-5854, McQueen v. Scroggy

Docket Nº:93-5854, 94-6116.
Citation:99 F.3d 1302
Party Name:Harold McQUEEN, Jr., Petitioner-Appellant, v. Gene SCROGGY, Warden, Respondent-Appellee.
Case Date:November 04, 1996
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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99 F.3d 1302 (6th Cir. 1996)

Harold McQUEEN, Jr., Petitioner-Appellant,


Gene SCROGGY, Warden, Respondent-Appellee.

Nos. 93-5854, 94-6116.

United States Court of Appeals, Sixth Circuit

November 4, 1996

Argued April 12, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Dec.

30, 1996.[*]

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Melissa D. Bellow, Asst. Public Advocate (briefed), Northpoint Training Center, Dept. of Public Advocacy, Burgin, KY, Randall L. Wheeler (argued and briefed), Kentucky Capital Litigation Resource Center, Frankfort, KY, for Petitioner-Appellant.

Elizabeth A. Myerscough, Asst. Attorney Gen., David A. Smith Asst. Attorney Gen. (argued and briefed), Office of the Attorney General, Frankfort, KY, for Respondent-Appellee.

Before: KEITH, KENNEDY, and BOGGS, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which KENNEDY, J., joined. KEITH, J. (pp. 1336-40), delivered a separate opinion concurring in part and dissenting in part.

BOGGS, Circuit Judge.

Harold McQueen appeals from the district court's denial of his petition for a writ of habeas corpus (No. 93-5854) and from the district court's denial of his subsequent motion for relief from judgment under Fed.R.Civ.P. 60(b) (No. 94-6116). A Kentucky court convicted McQueen of capital murder and sentenced him to death in 1981. For the reasons set out more fully below, we find no merit in any of McQueen's contentions and therefore affirm the district court's denial of the petition for a writ of habeas corpus and the district court's denial of the Rule 60(b) motion.


A jury convicted Harold McQueen of capital murder on March 29, 1981. The charge stemmed from the execution-style slaying of 22-year-old Rebecca O'Hearn in Richmond, Kentucky on January 17, 1980. The murder

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was part of an armed robbery of the "Minit Mart" convenience store where O'Hearn was working. McQueen, 27 at the time of the murder, apparently spent most of January 17 drinking and taking drugs. McQueen does not dispute that he was in the habit of drinking, taking valium, and smoking marijuana, often contemporaneously. On the date of the murder, McQueen and his girlfriend Linda Rose picked up McQueen's half-brother and accomplice William Burnell, who was 19 at the time. The group went to the Minit Mart at 11:00 p.m. where, according to Ms. Rose, McQueen said "he had some business to take care of." McQueen, armed with a .22 caliber pistol, left Rose in the car and he and Burnell entered the store. Several minutes later, Rose heard shots.

Burnell and McQueen emerged from the store, Burnell carrying a bag with the store's surveillance camera, and McQueen carrying three small bags. Rose testified that McQueen told her that he shot O'Hearn twice, and stated that "I know the bitch is dead." McQueen and Burnell then disposed of the surveillance camera in a nearby pond. Apparently, Burnell then left McQueen and Rose, who retired to a motel room for the evening.

At approximately 11:30 p.m., Michael Rhodu, a park ranger, stopped at the Minit Mart for a soda. He found Rebecca O'Hearn kneeling and slumped forward with her hands over her face, on the floor behind the counter. Officer Brock arrived at the scene in response to Rhodu's call for assistance. Brock recalled driving past the Minit Mart at about 11:15 p.m. and seeing Rebecca O'Hearn wave to him. He also recalled seeing two white males at the scene, one of whom he later identified as Harold McQueen.

Rebecca O'Hearn was barely alive when the police arrived at the scene and was dead on arrival at the hospital. The evidence, including the pathologist's report, disclosed that McQueen shot O'Hearn in the face from a distance of three to six inches with a .22-caliber handgun. The shot was not fatal and may not have even induced unconsciousness. McQueen delivered the fatal shot to the back of O'Hearn's neck and head, either after he made O'Hearn kneel on the floor or after she fell in a kneeling position.

Three days later, on January 20, 1980, police arrested Burnell for driving with a revoked operator's license. The next day, police arrested McQueen and Rose on an unrelated theft charge when they went to the Madison County Jail to visit Burnell.

A series of searches of the trailer where McQueen and Rose lived, some based on consent by Rose, some on search warrants, turned up a significant body of incriminating evidence. 1 In particular, officers found a bundle of cash (the evidence showed that the robbers had made off with $1500), a white bag with two pistols, and a bundle of food stamps taken from the Minit Mart. One food stamp bore notations from the manager of the Minit Mart, another bore notations made by O'Hearn. A dollar bill taken from the trailer bore a handwritten notation by the manager of the Minit Mart, and another dollar bill bore handwritten notations made by O'Hearn. A ballistic test revealed that one of the firearms recovered from the bag was the murder weapon. Finally, Rose led police to the pond where Burnell and McQueen dumped the video camera, which police divers recovered.

McQueen and Burnell were tried jointly for robbery and capital murder, beginning on March 16, 1981, before a Madison County Jury. The prosecution introduced the physical evidence, as well as testimony from Rose. The jury found both men guilty on March 29, 1981. The jury convicted Burnell and the judge sentenced him to two twenty-year terms, in light of the jury's refusal to recommend the death penalty. However, as recommended by the jury, the trial court sentenced McQueen to twenty years in prison for the robbery and to death for the murder. The Kentucky Supreme Court affirmed the conviction and sentence on direct appeal. McQueen v. Commonwealth, 669 S.W.2d 519(Ky.), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984).

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McQueen then filed a state collateral attack in the Madison Circuit Court, pursuant to Kentucky Rule of Criminal Procedure 11.42. The court held an evidentiary hearing, as well as two other hearings, before denying relief. The Kentucky Supreme Court affirmed the denial of post-conviction relief. McQueen v. Commonwealth, 721 S.W.2d 694 (Ky.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987).

McQueen then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on June 8, 1987. On July 21, 1988 a magistrate filed proposed findings of fact and recommended that the district court deny the petition. After a series of motions requesting evidentiary hearings and expert fees, the district court dismissed the habeas petition on June 24, 1991. McQueen then filed a motion pursuant to Fed.R.Civ.P. 59 for a new trial on July 9, 1991.

On September 18, 1991, while the Rule 59 motion was pending in federal district court, McQueen filed a petition in the Kentucky Supreme Court seeking "relief from a judgment affirmed on appeal, or to reinstate an appeal," on the ground of ineffective assistance of appellate counsel. This motion raised alleged deficiencies in the performance of appellate counsel for the first time, and was filed in light of purported new remedies created in the Kentucky Supreme Court's preliminary opinion in Hicks v. Commonwealth, 89-sc-213-tg (decided September 6, 1990).

On the same day (September 18, 1991), McQueen filed a motion in the federal district court to hold in abeyance any further proceedings, particularly his Rule 59 motion, pending resolution of the Kentucky Supreme Court petition. Although warden Scroggy filed papers in opposition, the district court granted the motion on March 6, 1992.

The Kentucky Supreme Court denied the petition to reinstate the appeal on August 28, 1992, based on the final opinion in Hicks v. Commonwealth, 825 S.W.2d 280 (1992). The Kentucky Supreme Court then denied McQueen's petition for rehearing on October 20, 1992. The United States Supreme Court denied a petition for certiorari on April 5, 1993. McQueen v. Kentucky, 507 U.S. 1020, 113 S.Ct. 1820, 123 L.Ed.2d 450 (1993).

McQueen and Scroggy filed status reports in federal district court on April 15 and 16, 1993. On May 5, 1993, the district court denied McQueen's Rule 59 motion. It vacated the stay of execution and, in accord with its June 24, 1991 decision, noted the matter as stricken from the docket. On May 17, 1993, McQueen filed a motion for reconsideration. The district court denied this motion on May 21, 1993. McQueen then filed an appeal in this court, docketed as No. 93-5854, from the denial of the habeas petition.

While this appeal was pending, McQueen filed a motion in this court seeking a remand to the district court. The purported goal of the motion was to allow the habeas petition to be amended to include the ineffective assistance of appellate counsel issues raised and rejected by the Kentucky Supreme Court. McQueen then filed a second motion seeking to supplement the initial motion to remand to the district court. The goal of the second motion was to allow further amendment of the habeas petition to include claims that McQueen has brain damage. On February 8, 1994, this panel denied the motion to remand and, in doing so, called McQueen's attention to Fed.R.Civ.P. 60(b).

On May 5, 1994, McQueen filed a motion in the district court pursuant to Fed.R.Civ.P. 60(b). McQueen also filed an accompanying motion asking the district court to, in effect, request a remand of the case from this court to the district court under First Nat'l Bank of Salem v. Hirsch, 535 F.2d 343 (6th Cir.1976). Scroggy opposed both motions. Specifically, Scroggy...

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