Smith v. Coleman, 040413 FED6, 10-3280

Docket Nº:10-3280
Opinion Judge:CLAY, Circuit Judge.
Party Name:GAREY SMITH, Petitioner-Appellant, v. JOHN COLEMAN, Warden, Respondent-Appellee.
Judge Panel:BEFORE: CLAY and WHITE, Circuit Judges; HOOD, District Judge. HELENE N. WHITE, Circuit Judge, concurring.
Case Date:April 04, 2013
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

GAREY SMITH, Petitioner-Appellant,


JOHN COLEMAN, Warden, Respondent-Appellee.

No. 10-3280

United States Court of Appeals, Sixth Circuit

April 4, 2013



BEFORE: CLAY and WHITE, Circuit Judges; HOOD, District Judge. [*]

CLAY, Circuit Judge.

In 2002, an Ohio jury found Petitioner Garey Smith guilty of murder, attempted murder, and numerous felonious assaults arising out of the shooting of three men and the shooting death of a fourth. Following an Ohio appellate court's reversal of his convictions based on the denial of Petitioner's right to self-representation, the case was remanded for a new trial. Petitioner then filed this petition for a writ of habeas corpus, purportedly under 28 U.S.C. § 2254, claiming violations of his rights under the Double Jeopardy Clause. The district court stayed the resolution of the petition until the end of Petitioner's state court proceedings. After the conclusion of the state court proceedings, the district court denied Petitioner his requested habeas relief. On a motion for reconsideration, however, the district court granted Petitioner a certificate of appealability on his double jeopardy claims. For the reasons that follow, we AFFIRM the district court's denial of a writ of habeas corpus to Petitioner.


Petitioner Garey Smith was indicted on eleven counts stemming from a shooting incident involving four victims that occurred on May 14, 2001. Petitioner was charged with the murder of Jimmie Gordon; attempted murder and two counts of felonious assault as to Jeffrey King; attempted murder and two counts of felonious assault as to Steven Franklin; attempted murder and two counts of felonious assault as to Andre Ridley; and, finally, a weapons charge. The jury found Petitioner guilty on all charges except the attempted murder of King.

Central to one of his claims in this appeal, Petitioner claims prosecutorial misconduct from his first trial. Specifically, the prosecutor elicited testimony from Franklin about his non-use of drugs when the prosecutor knew that Franklin had previously dealt crack cocaine. See State v. Fears, 715 N.E.2d 136, 143–46 (Ohio 1999); State v. Grant, No. C-9710001, 2001 Ohio App. LEXIS 1388, at *7 (Ohio Ct. App. Mar. 23, 2001)). Next, the prosecutor elicited testimony that Franklin had been shot from behind when his medical records, to which the prosecutor stipulated, indicated that all of his bullet wounds were on the front of his body. Third, the prosecutor told the jury in his closing argument that Gordon was seventeen years old, but he had previously elicited testimony from a witness that Gordon was twenty-nine at the time of his death. Fourth, the prosecutor told the jury that Petitioner had lied to them and elaborated: "It was one of the biggest bold-faced lies I ever have heard in a courtroom. He looked at you, right in the eye, lied to you and never batted an eye . . . ." (R. 126-14, at PID# 3473.) Additionally, the prosecutor claimed that had another bystander, Nick Grant, been present when Petitioner came across Gordon, Franklin, King, and Ridley, Petitioner would have shot Grant as well. Finally, the prosecutor attempted to bait Petitioner into losing his temper.

MR. KRUMPELBECK [(Prosecutor)]: He gives you not one single reason. Did you hear a reason why he went back over there?

THE DEFENDANT [(Petitioner)]: I lived there.

MR. KRUMPELBECK: On the evening of the fourteenth, did you? Are you mad at me now?

THE DEFENDANT: You said you didn't hear a reason. I live there.

THE COURT: Mr. Smith, please. Go ahead, Mr. Krumpelbeck.

MR. KRUMPELBECK: I knew that was going to happen. I thought it was going to happen yesterday. I was surprised it didn't. What I was showing, a little bit of the anger, I was trying to bait him. I knew this would happen. I knew he would respond. He couldn't keep his mouth shut. That's what this is all about. He is an uncontrollable rage.

(Id. at 3480–81 (emphasis added).) At no point, however, did Petitioner move for a mistrial because of the prosecutor's conduct.

During sentencing, the state trial judge merged, pursuant to Ohio Rev. Code § 2941.25(A), Petitioner's two felonious assault convictions into his attempted murder conviction with respect to Franklin; his two felonious assault convictions with respect to King into each other; and his two felonious assault convictions into his attempted murder conviction with respect to Andre Ridley. Therefore, Petitioner was sentenced on two counts of attempted murder and one count each of murder, felonious assault, and unlawful possession of a weapon, for which he received a total prison term of forty-seven years to life.

Petitioner appealed his convictions to the Ohio Court of Appeals, asserting various bases, including the denial of his right to self-representation and prosecutorial misconduct. In that appeal, however, Petitioner did not challenge the sufficiency of the evidence with respect to any of his convictions. The Ohio Court of Appeals found Petitioner's self-representation claim meritorious and ordered a new trial on that basis. State v. Smith (Smith I), No. C-020610, 2004 WL 102285, at *7 (Ohio Ct. App. Jan. 23, 2004). However, that court saw fit to comment on Petitioner's prosecutorial misconduct claim as well:

Although not central to the disposition of this appeal, we feel compelled to comment on Smith's allegations of prosecutorial misconduct during closing argument. We agree that the prosecutor's comments on the veracity of Smith, his admitted attempts to bait Smith into losing his temper, and his comments on facts not in evidence were improper. The prosecutor's actions under other circumstances may have provided a basis for reversal and the order of a new trial, but given our disposition of the first assignment of error, this issue has been rendered moot.


On remand, Petitioner was recharged with the ten counts of which he had been found guilty at his first trial. Petitioner filed a motion to dismiss these charges with the second state trial court based, in part, on the prosecutorial misconduct from his first trial; however, he did not argue in that motion that there was insufficient evidence in the first trial. Following a denial of that motion by the second state trial court but prior to the commencement of the second state trial, Petitioner, then proceeding pro se, filed this habeas petition in the United States District Court for the Southern District of Ohio. The petition was styled as seeking relief under 28 U.S.C. § 2254. Proceedings on the petition were stayed pending the termination of the state court proceedings.1 Petitioner appealed that decision to this Court, and we reinstated the case because Petitioner had since exhausted available state-court remedies. Smith v. Jackson, 229 F.App'x 405, 407 (6th Cir. 2007) (per curiam).

Following our 2007 Smith decision, the district court reinstated Petitioner's habeas petition. The petition was referred to a magistrate judge, who recommended denying Petitioner habeas relief. See Smith v. Warden, S. Ohio Corr. Facility, No. 1:04cv579, 2009 WL 6698609 (S.D. Ohio Jan. 5, 2009). As to Petitioner's misconduct-based double jeopardy claim, the magistrate judge recommended denying it based on the lack of clearly established law. As to his merger-based double jeopardy claim, the magistrate judge recommended finding it moot. The district court...

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