Simpson v. Warden, Warren Correctional Institution, 060216 FED6, 15-3260

Docket Nº:15-3260
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:DONOVAN SIMPSON, Petitioner-Appellee, v. WARDEN, WARREN CORRECTIONAL INSTITUTION, Respondent-Appellant.
Judge Panel:Before: DAUGHTREY, MOORE, and GRIFFIN, Circuit Judges.
Case Date:June 02, 2016
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

DONOVAN SIMPSON, Petitioner-Appellee,



No. 15-3260

United States Court of Appeals, Sixth Circuit

June 2, 2016



Before: DAUGHTREY, MOORE, and GRIFFIN, Circuit Judges.



In Simpson v. Jackson, 615 F.3d 421 (6th Cir. 2010), cert. granted, judgment vacated sub nom. Sheets v. Simpson, 132 S.Ct. 1632 (2012), this court granted in part Donovan Simpson's 28 U.S.C. § 2254 petition, holding that three statements Simpson gave to law-enforcement officials investigating a deadly arson were obtained in violation of Miranda. Simpson gave two of those statements while he was incarcerated for an unrelated offense; he gave the third statement in a police station while out on a recognizance bond. Because the original panel determined that the trial court's admission of those three statements was not harmless error, it vacated Simpson's convictions for the three most serious crimes of which he was found guilty: aggravated murder, murder, and attempted murder. The Warden sought certiorari.

In 2012, the Supreme Court decided Howes v. Fields, 132 S.Ct. 1181 (2012), reversing this court's habeas grant to a prisoner who claimed that his jailhouse confession was obtained in violation of Miranda. Shortly thereafter, the Supreme Court granted the Warden's petition for certiorari in Simpson's case, vacated the Simpson panel's judgment, and remanded Simpson's case for reconsideration in light of Howes. After we then remanded to the district court for reconsideration, the district court determined that Howes did not affect the outcome of Simpson's case, and issued a partial habeas grant consistent with the 2010 panel's opinion. For the reasons set forth below, we AFFIRM.


A. Facts

1. The fire at 151 South Wheatland Avenue.

On October 27, 1997, 151 South Wheatland Avenue in Columbus, Ohio caught fire. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 2) (Page ID #808). Six people were inside the house: Aleta Bell; three of Bell's children-Shenequa (five years old), Elijah (three years old), and Myesha (five months); and two men, Terrance Hall and Gary Williams. Hall woke up to the sound of crashing glass; the fire spread quickly. Bell, Myesha, Hall, and Williams escaped, but Elijah was seriously injured, and Shenequa died from her injuries. The Columbus Fire Department determined that the fire started when someone threw a Molotov cocktail through the home's living-room window. Id. ¶¶ 5–7 (Page ID #810–11).

2. Simpson makes four statements to law enforcement in April and June 2000.

Columbus Police Department Detective Edward Kallay, Jr. led the investigation into the 151 South Wheatland fire. Id. ¶ 8 (Page ID #811). In January 2000, informant Adiyat Diggs told Kallay that Simpson "might have information" about the crime. Id.; R. 79-1 (Trial Tr. (Kallay) at 105:24–106:7) (Page ID #1236–37). Kallay and other law-enforcement officers interviewed Simpson on four dates: April 24, April 27, June 16, and June 20, 2000.

a. Simpson's April 24, 2000 statement.

Kallay and Federal Special Agent Dan Ozbolt interviewed Simpson at the Southeastern Correctional Center in Lancaster, Ohio, where Simpson was then incarcerated. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 8) (Page ID #811); R. 79-1 (Trial Tr. (Kallay) at 107:7–14) (Page ID #1238). Guards took Simpson from the prison's general population and brought him to a conference room in the prison warden's office. Simpson, 615 F.3d at 426–27. Kallay and Ozbolt recorded the interrogation. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 8) (Page ID #811).

Kallay and Ozbolt did not Mirandize Simpson on April 24. Id. ¶ 4 (Page ID #809). They "accused Simpson of being with" Daryl Kelly-whom the officers considered a suspect-"at the time of the incident." Simpson, 615 F.3d at 427; R. 79-1 (Trial Tr. (Kallay) at 109:3–7) (Page ID #1240). However, nothing Simpson told Kallay and Ozbolt on April 24 led them to consider Simpson a suspect. R. 79-1 (Trial Tr. (Kallay) at 109:11–16) (Page ID #1240).

Simpson told Kallay and Ozbolt that he met up with Kelly the day before and the day of the fire. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 9) (Page ID #811–12). The day before the fire, Simpson drove Kelly to a bar, where Kelly met with a woman named Leah Smith. Id. A few months before the fire, Smith got into a dispute with Bell, broke into Bell's half of the building, and was ultimately convicted of burglary. Id. ¶ 9 n.1 (Page ID #812–813). Simpson didn't enter the bar that night; when Kelly and Smith exited, Simpson overheard Smith "tell Kelly to 'take care of this for [her].'" Id. ¶ 9 (Page ID #812).

Simpson recounted that the next day (the day of the fire), Kelly called Simpson and asked for another ride. Id.; R. 79-1 (Trial Tr. (Kallay) at 109:22–110:1) (Page ID #1240–41). Simpson told Kallay and Ozbolt that he smelled gasoline on Kelly when he picked him up. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 9) (Page ID #812).

Simpson's April 24 interview lasted just under an hour. Id. ¶ 24 (Page ID #818). During the interview, Kallay and Ozbalt told Simpson that they could get him released from prison if he cooperated with them. R. 79-1 (Trial Tr. (Kallay) at 136:11–24) (Page ID #1267). Simpson had four to six months left on his sentence, and had a release application pending before the Licking County Common Pleas Court. Id. at 135:21–136:1 (Page ID #1266–67); R. 79-12 (Trial Tr. (Kallay) at 28:8–12) (Page ID #3510). Simpson had also just fathered a child. R. 79-1 (Trial Tr. (Kallay) at 136:2–10) (Page ID #1267). The officers promised Simpson that they would secure his release from prison if he helped them with the arson investigation. Id. at 136:25–137:6 (Page ID #1267–68).

b. Simpson's April 27, 2000 statement.

Kallay and Ozbolt returned to the Southeastern Correctional Center to interview Simpson on April 27. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 10) (Page ID #812). Simpson was then in the infirmary. Simpson, 615 F.3d at 427. Once again, Kallay and Ozbolt did not Mirandize Simpson. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 4) (Page ID #809). During this interview- which lasted about half an hour-Simpson reiterated what he had told Kallay and Ozbolt on April 24: that Smith and Kelly were involved in setting the fire at 151 South Wheatland. Id. ¶¶ 9, 24 (Page ID #812, 818); R. 79-1 (Trial Tr. (Kallay) at 117:4–6) (Page ID #1248).

Kallay and Ozbolt followed through on their April 24 promise. The officers obtained a recognizance bond for Simpson, and Simpson was released from prison on probation. R. 79-12 (Trial Tr. (Kallay) at 29:3–30:11) (Page ID #3511–12). In exchange, Simpson agreed to help the officers with their investigation. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶ 10) (Page ID #812).

c. Simpson's June 16, 2000 statement.

Simpson did not cooperate with the arson investigation. R. 79-12 (Trial Tr. (Kallay) at 32:12–21) (Page ID #3514). Kallay arrested Simpson on June 16 for violating the terms of his probation, and subsequently brought Simpson to a Columbus police station for a videotaped interview. R. 78-1 (7/23/02 Ohio Ct. App. Op. ¶¶ 10–11) (Page ID #812).

Ozbolt gave Simpson a "Miranda rights waiver form, " which Simpson signed. Id. ¶ 4 (Page ID #810); R. 79-1 (Trial Tr. (Kallay) at 141:23–142:7) (Page ID #1272–73). Kallay told Simpson that because he had failed to report on his recognizance bond, he could be charged with a felony. R. 79-11 (Trial Tr. (6/16/00 Recording) 42:11–21) (Page ID #3180). Then Kallay started pressing Simpson on his April statements. Id. at 44:16–23 (Page ID #3182). At first, Simpson maintained that he wasn't involved with the arson, id. at 44:23–45:3 (Page ID #3182– 83), but Kallay pushed harder, id. at 45:11–25, 47:11–15, 50:3–10 (Page ID #3183, 3185, 3188). Ozbolt counseled Simpson to tell the truth, but added that Kelly and Smith were the prime suspects. Id. at 48:7–10 (Page ID #3186).

Simpson relented; he told Kallay and Ozbolt that he was more involved with the arson than he had initially let on. The day before the fire, Smith asked Simpson if he could drive Kelly somewhere that evening. Id. at 64:14–65:3 (Page ID #3202–03). Simpson was high on crack cocaine; Smith gave him more crack in exchange for driving Kelly. Id. at 64:6–11, 65:8–13 (Page ID #3202–03). That night, Simpson and Kelly bought two fifths of alcohol, id. at 68:18– 23, 70:7–8 (Page ID #3206, 3208), and they drove around Columbus drinking, id. at 70:10–16 (Page ID #3208). Eventually, Simpson parked in front of a house which Kelly entered, but Simpson stayed in the car. Id. at 70:20–71:9 (Page ID #3208–09). When Kelly emerged, he was carrying the two alcohol bottles, filled with gasoline. Id. at 71:9–17 (Page ID #3209).1

Kelly told Simpson to drive to South Wheatland Avenue. Id. at 76:11–17 (Page ID #3214). On the way over, Kelly grabbed a towel from the backseat of the car and started tearing it into strips. Id. at 76:17–23 (Page ID #3214). Kelly told Simpson that he was "gonna blow that bitch up." Id. at 76:24–25 (Page ID #3214).

Simpson drove to an alley behind 151 South Wheatland, id. at 79:21–22 (Page ID #3217), where he smoked more crack with Kelly, id. at 79:24–25 (Page ID #3217). Kelly exited the car carrying the two gasoline-filled bottles and told Simpson to meet him at a nearby corner in ten seconds. Id. at 82:25–83:12 (Page ID #3220–21). As Simpson headed to the corner, he heard the sound of glass shattering. Id. at 83:25–84:2 (Page ID #3221–22).

Simpson told Kallay and Ozbolt that he didn't know what Kelly and...

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