Smith v. Coleman, 122111 FED6, 09-4543

Docket Nº:09-4543
Opinion Judge:MARTHA CRAIG DAUGHTREY, Circuit Judge.
Party Name:GAREY SMITH, Petitioner-Appellant, v. JOHN COLEMAN, Warden, Respondent-Appellee.
Judge Panel:Before: DAUGHTREY, CLAY, and STRANCH, Circuit Judges.
Case Date:December 21, 2011
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

GAREY SMITH, Petitioner-Appellant,


JOHN COLEMAN, Warden, Respondent-Appellee.

No. 09-4543

United States Court of Appeals, Sixth Circuit

December 21, 2011



Before: DAUGHTREY, CLAY, and STRANCH, Circuit Judges.


Petitioner Garey Smith, an Ohio prisoner proceeding pro se, appeals the district court's judgment denying his request for relief under the federal habeas statute, 28 U.S.C. § 2254. In the district court, Smith raised various claims, but the only issue certified by the district court for our review concerns Smith's contention that he was denied due process based on prosecutorial misconduct – specifically, improper comments made during the rebuttal portion of the state's closing argument. The district court adopted the report and recommendation of the magistrate judge, who reviewed the petitioner's claims de novo, an exercise we find unnecessary, given that the Ohio Court of Appeals had already reviewed the issue on direct appeal and resolved it appropriately. We nevertheless affirm the denial of relief, concluding that the result reached by the district court was correct.

The charges against Smith were based on a 2001 shooting incident that resulted in the death of one victim, Jimmy Gordon, and serious injury to three others. Smith never denied that he shot the four men, but he claimed that he acted in self-defense after the victims had advanced on him in a threatening manner. As it turned out, however, Smith was the only one armed, and all the shots fired came from his weapon. Because the three wounded victims were available to testify, along with several bystanders and police officers who arrived on the scene, it became necessary to destroy the credibility of virtually all the state's witnesses at trial in order to maintain Smith's theory of self-defense. The prosecutor's response to that trial strategy produced the legal dispute now before us. It arose during the second trial in a convoluted path of litigation that resulted in three trials in state court, two direct appeals, a state postconviction hearing and appeal, two federal habeas proceedings, and at least three appeals filed in this court, one other of which is still pending, bearing case number 10-3280.1

The habeas petition now before us, charging prosecutorial misconduct occurring in Smith's second state trial, is governed by provisions of the Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132, 110 Stat. 1214 (1996) (AEDPA), which directs the federal courts to review constitutional claims decided by the state courts on the merits under the following standards:

An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of the state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim

(1)resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2)resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

* * * * *

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. §§ 2254(d)(1), (d)(2), and (e)(1).

In this case, the district court adopted the magistrate judge's report and recommendation, including the magistrate's determination that the merits of...

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