McCarley v. Kelly, 091015 FED6, 12-3825

Docket Nº:12-3825
Opinion Judge:BERNICE BOUIE DONALD, Circuit Judge.
Party Name:Willard McCarley, Petitioner-Appellant, v. Bennie Kelly, Warden, Respondent-Appellee.
Attorney:Melissa M. Prendergast, OHIO PUBLIC DEFENDER'S OFFICE, Columbus, Ohio, for Appellant. Mary Anne Reese, OFFICE OF THE OHIO ATTORNEY GENERAL, Cincinnati, Ohio, for Appellee.
Judge Panel:Before: DAUGHTREY, GIBBONS, and DONALD, Circuit Judges.
Case Date:September 10, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Willard McCarley, Petitioner-Appellant,


Bennie Kelly, Warden, Respondent-Appellee.

No. 12-3825

United States Court of Appeals, Sixth Circuit

September 10, 2015

On Remand from the Supreme Court of the United States. No. 5:09-cv-02012 Benita Y. Pearson, District Judge.

Melissa M. Prendergast, OHIO PUBLIC DEFENDER'S OFFICE, Columbus, Ohio, for Appellant.

Mary Anne Reese, OFFICE OF THE OHIO ATTORNEY GENERAL, Cincinnati, Ohio, for Appellee.

Before: DAUGHTREY, GIBBONS, and DONALD, Circuit Judges.



This is an appeal from the district court's denial of Petitioner Willard McCarley's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. McCarley argued in his petition that the Ohio Court of Appeals unreasonably applied clearly established Sixth Amendment law by allowing a child psychologist to read into evidence the testimonial hearsay statements of a three-and-a-half-year-old declarant, where the declarant was not subject to any prior cross-examination. The district court held that although the Ohio state courts unreasonably applied the rule of Crawford v. Washington, 541 U.S. 36 (2004), the Sixth Amendment violation was harmless error under Brecht v. Abrahamson, 507 U.S. 619 (1993), because it could not have substantially influenced the jury's verdict. On July 10, 2014, applying de novo review, we reversed the district court's judgment and remanded with instructions to grant McCarley a conditional writ of habeas corpus. McCarley v. Kelly, 759 F.3d 535, 549-50 (6th Cir. 2014).

On June 29, 2015, the United States Supreme Court vacated our opinion and remanded the case to us for further consideration in light of Davis v. Ayala, 135 S.Ct. 2187 (2015). Kelly v. McCarley, 135 S.Ct. 2887 (2015). The import of Davis is that our prior application of de novo review was erroneous. See 135 S.Ct. at 2198-99 ("[A] prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA."). But even under the appropriate deferential standard of review, we conclude that the state court unreasonably applied clearly established federal law, and that the error was not harmless under Brecht. Accordingly, we REVERSE the judgment of the district court and REMAND the case with instructions to grant McCarley a conditional writ of habeas corpus.


On direct appeal, the Ohio Court of Appeals described the factual background of McCarley's trials and convictions as follows:

{¶ 2} Charlene Puffenbarger filed a paternity suit naming McCarley as the father of her two year old son in November of 1991. Charlene filed the suit to obtain child support from McCarley, who initially denied paternity. McCarley did not wish to pay Charlene child support as he was already paying child support to Kim Pennington, his former girlfriend and the mother of his six year old son. McCarley threatened Charlene to drop the suit and stated that he would kill her before paying her child support.

{¶ 3} On January 20, 1992[, ] at approximately 10:00 a.m., a neighbor came to Charlene's apartment and found her on the couch. Charlene had several scalp lacerations, defensive wounds on her hands, and a leather strap wrapped twice around her neck. The coroner later estimated that Charlene had died sometime between 12:30 and 1:30 a.m. Both of Charlene's two children were at home when her murder occurred.

{¶ 4} When the police arrived at Charlene's apartment, her three year old son ("D.P.") repeatedly looked at the uniformed officers and stated: "It was him. He hurt mommy." Four days later, he made related statements in the presence of Phyllis Puffenbarger, D.P.'s grandmother. D.P. picked up a toy telephone and said things such as:

"I am going to get the belt. A policeman. Go kick that window. Phone. Get the stick. I am going to shoot you. *** A policeman. My mom seen the policeman. *** What you do that to my mom. *** Policeman hit my mommy. Put tape on her."

Phyllis testified that D.P. had tears in his eyes and was looking at a picture of his mother when he made the statements. As a result of this incident, Phyllis contacted the police and took D.P. to a child psychologist at their suggestion. Dr. Dawn Lord was able to elicit several similar statements from D.P. during her sessions with him.

{¶ 5} On December 19, 1995, police officers made a surprise visit to McCarley's home on an unrelated matter. While speaking with McCarley in his garage, police officer Dennis Balogh saw a deputy sheriff's jacket and sheriff's cap strewn across a moving dolly. Officer Balogh remembered D.P.'s statements from years before and confiscated the jacket and cap as contraband.

{¶ 6} On May 21, 2004, a grand jury indicted McCarley on one count of aggravated murder, a special felony embodied in R.C. 2903.01(A). The jury ultimately found McCarley guilty, but an error during trial caused this Court to reverse the jury's verdict on appeal and remand the case. McCarley's second trial commenced on January 16, 2007. On January 25, 2007, the jury found McCarley guilty of aggravated murder. He was sentenced to life imprisonment with the possibility of parole in twenty years.

McCarley alleges that the admission of the testimony of Dr. Lord, the child psychologist, violated his Sixth Amendment right to confront the witnesses against him. Dr. Lord read to the jury, over counsel's contemporaneous objection, three letters she wrote to Lieutenant John Karabatsos ("Lt. Karabatsos") detailing her therapy sessions with the murder victim's minor son, D.P. The first letter to Lt. Karabatsos, prepared by Dr. Lord on January 30, 1992, stated:

Thank you for referring [D.P.] to me. On January 30th, 1992, I had the opportunity to meet with [D.P.] for a diagnostic interview . . . .

At that time he presented himself as a talented boy with many strengths. However, signs of anxiety and depression were noted. Also, some mild developmental delays were evidenced. It is important to realize that [D.P.] has experienced a number of recent psychosocial stressors. These included the following: Change in residency, death of his mother, and alleged witnessing of his mother's death. On the Parent Rating Scale of the behavior rating profile, [D.P.'s] maternal grandmother indicated that [D.P.] is shy, clings to parents, and is overly sensitive to teasing. It is important to realize that the maternal grandparents appear to be very concerned about [D.P.] and his behavior. Also, they were in the process of grieving the loss of their daughter.

During the clinical interview, [D.P.] initially appeared fearful and guarded. When discussing this area, he reported that the alleged murderer of his mother threatened him with violence. He stated that the man told him he would kill him if he told about the homicide. This area was discussed with [D.P.] as well as safety issues were presented. Then [D.P.] became very verbal and open concerning his mother's death. It is imperative to realize that [D.P.] reported that he had witnessed the death -- I am sorry. When discussing this area, he said two guys, referring to two men, were in the house at mom's. When asked further about this, he stated these men had been there before and that the one man had a gun. When asked further about the situation, [D.P.] reported that the two men were white men and that the one man wore clothes that resembled a uniform. He stated that the one man began to become verbally assaultive with his mother and that an argument broke out. He said they are arguing, they were yelling, arguing, loud, louder, hit her. I am done. [D.P.] indicated that not only did verbal abuse occur, but that the man allegedly began to hit and beat his mother. He reported that this was one of his mother's boyfriends. He states that the man's name was Tim and that the man had been at the home two or three times previously. He was not able to provide the last name for this man.

During the consultation with the maternal grandfather, he stated that the mother did know a man by the name of Tim Greene who had worked on her car. The maternal grandmother stated that her daughter had dated a man by the name of Tim before dating Willard, the alleged father of [D.P.'s] sibling. It is important to realize that there are limitations to the clinical interview and the testing process due to [D.P.'s] young age. However, it is felt that he did witness his mother's death and the alleged crime. Without question, this has had an adverse impact on [D.P.], and he is very confused and fearful concerning the loss of his mother. [D.P.] does need individual psychotherapy, and his maternal grandmother --grandparents, excuse me, need parent counseling in order to help them deal with the recent loss. Also, [D.P.] does need a dental examination and possible dental care.

His next appointment is scheduled for February 6th, 1992. If you need any further information or if I can ever be of any help to you, please do not hesitate to contact me. Thank you for your time and consideration in this matter.

The second letter, prepared by Dr. Lord on May 14, 1992, stated:

It is always a pleasure to work with you. I greatly appreciated the opportunity to see [D.P.] and his young brother . . . . [D.P.] has been seen at my office on four different occasions. At each time, he was very consistent in the details surrounding his mother's death. He reports that two men came to his mother's home and that both were Caucasian. He felt that both of the men were dressed in some form of uniform. He consistently stated that the uniforms were black. Also, he indicated that one man had a gun. He reported that his mother knew the men and let them into the home without a struggle. He stated that the two men and his mother had been talking for quite some time, about the length of a TV program such as Sesame Street....

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