Allen v. Mitchell

• Decision Date: 24 March 2020
• Docket Number: No. 02-4145,02-4145
• Citation: 953 F.3d 858
• Parties: David Wayne ALLEN, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

953 F.3d 858

David Wayne ALLEN, Petitioner-Appellant,

v.Betty MITCHELL, Warden, Respondent-Appellee.

No. 02-4145

United States Court of Appeals, Sixth Circuit.

Argued: October 15, 2019

Decided and Filed: March 24, 2020

JOHN K. BUSH, Circuit Judge.

David Wayne Allen was convicted of aggravated robbery and aggravated murder in 1991. He was sentenced to death. Allen’s present appeal seeks review of the district court’s denial of a writ of habeas corpus under 28 U.S.C. § 2254. Allen argues that the trial court in the Ohio state proceedings violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments by failing to excuse a juror who demonstrated she could not be fair and unbiased. Because our review of a denial of habeas corpus under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254, imparts a great level of deference to state court factual determinations, and because the determination of whether to seat a juror is an exercise of discretion by the trial court, we AFFIRM the district court’s denial of Allen’s petition for a writ of habeas corpus.

I.

David Wayne Allen was convicted of aggravated robbery and aggravated murder for the death of 84-year-old Chloie English, whom he knew through a prison ministry program. English was found stabbed, beaten, and strangled to death in her home. Allen’s thumbprint was found on the inside of one of the lenses of England’s glasses, and cigarette butts consistent with Allen’s brand (Dorals) and saliva (type O secretor) were found in English’s trash can. The coroner put English’s time of death at between midnight and six a.m. on January 25, 1991. A bus driver remembered picking up Allen near English’s home a little after six in the morning on that same date. Later that year Allen was convicted of all charges and sentenced to death. The Ohio Court of Appeals affirmed Allen’s convictions and sentence in 1993, State v. Allen , No. 62275, 1993 WL 366976 (Ohio Ct. App. Sept. 9, 1993), and the Ohio Supreme Court affirmed in 1995, State v. Allen , 73 Ohio St.3d 626, 653 N.E.2d 675 (1995). The Ohio Supreme Court denied Allen’s application to reopen his direct appeal. State v. Allen , 77 Ohio St.3d 172, 672 N.E.2d 638 (1996) (per curiam). Allen filed a petition for post-conviction relief in September 1996. The trial court denied the petition without an evidentiary hearing, and the Ohio Court of Appeals affirmed. State v. Allen , No. 72427, 1998 WL 289418 (Ohio Ct. App. June 4, 1998).

Allen first filed a petition for a writ of habeas corpus in 1999. The district court denied the petition in 2002, and granted Allen a certificate of appealability as to his claim that a biased juror served on the jury. In April 2006, Allen filed a motion to hold briefing in abeyance pending the completion of DNA analysis. This court granted the motion. The state court proceedings concluded in 2017, when the Ohio Supreme Court denied review of the denial of Allen’s motion for a new trial. State v. Allen , 150 Ohio St.3d 1442, 82 N.E.3d 1175 (2017) (table).

We denied Allen’s motion to expand the certificate of appealability to include a Brady claim and a claim for ineffective assistance of counsel. We also denied Allen’s petition for rehearing, and set a briefing schedule. Allen v. Mitchell , 757 F. App'x 482 (6th Cir. 2018).

Allen’s habeas petition now before us alleges that he was denied the right to a fair trial and due process of law because Patricia Worthington, one of the jurors who sat at his capital trial, initially indicated during voir dire that she was not sure that she could be fair and impartial. To address Allen’s argument, we review the full context of Worthington’s statements to the trial court.

Before voir dire, the trial court told prospective jurors to let the bailiff know if they had a specific problem with serving on the jury. Worthington told the trial court her brother had been shot and killed two years earlier. The trial court explained that it was inquiring about issues like physical disabilities or other reasons someone could not serve, and that it would address other issues—such as moral or philosophical reasons as to why one could not serve on the jury—in general voir dire.

The trial court then conducted a general voir dire to determine if any potential jurors had any moral or philosophical beliefs that would impair their ability as jurors at the sentencing phase. When Worthington was called, the trial court asked her if she had "any philosophical, moral, or religious beliefs that would prevent or substantially impair her ability to accept the court’s instructions of law with regard to sentencing," and, if Allen was convicted, to recommend the death penalty, or life imprisonment without parole for twenty or thirty years. Worthington responded no to this inquiry.

However, during her individual voir dire, Worthington initially expressed some hesitation as to whether she could be an impartial juror. She told the trial court that the man charged with murdering her brother was acquitted and she did not feel justice was done. She agreed with the trial court’s suggestion that she had some feelings of bitterness and resentment because of the outcome of the trial. The trial court asked her if she could set aside those feelings and reach a verdict based solely on the evidence that came out in open court, and Worthington said she could.

She also disclosed that two of her friends were police officers, and that she got to know a detective and the prosecutor from her brother’s case. The detective and the prosecutor from her brother’s case kept in contact with her mother. Worthington told the prosecutor she would try to set aside the experience of her brother’s case and evaluate Allen’s case solely on the evidence, follow the law as instructed, and come to a fair and impartial verdict. Allen’s counsel stated that witnesses from the coroner’s office who testified at her brother’s trial would testify at Allen’s trial, and asked Worthington whether she would be able to hold back an emotional response to their testimony. Worthington said she did not know whether she could, because her brother’s trial was too recent. She agreed that she was a little bit anxious but denied that her reaction to hearing some of the same kind of evidence from some of the same witnesses might substantially impact her ability to concentrate on Allen’s case.

Allen—who had exhausted the last of his peremptory strikes—challenged Worthington for cause. He argued that, because the trial of the person accused of murdering her brother was close in time to Allen’s trial and Worthington was familiar with the witnesses and type of testimony, she would be emotionally involved and was not detached. The trial court found that Worthington "unequivocally stated that she could be fair and impartial. ... [T]he jury [sic] was very straightforward. She understands the responsibility here and I don’t see a problem with her serving." R. 189-15, at *219. The trial court denied Allen’s motion, and Worthington was called to fill the twelfth spot on the jury.

The Ohio Supreme Court, in a four-to-three ruling, affirmed the trial court’s decision to seat Worthington. Allen , 653 N.E.2d at 681. The court held that the trial court’s finding that Worthington was unbiased was supported by her testimony, and that the trial court could legitimately validate her statements because it saw and heard her. Id . Three justices dissented, asserting that Worthington should have been excused for cause. Id. at 691–92 (Wright, J., dissenting).

The district court denied Allen’s habeas claim on the merits. The court found that Worthington showed some reluctance about being a juror, but stated repeatedly that her brother’s murder and trial would not impact her decision in Allen’s case. R. 189-23 at PageID 45. The court concluded that, because nothing in the record overtly indicated bias against Allen or an inability to act impartially, it was required to defer "to the trial judge who sees and hears the juror." Id. at 45–46 (quoting Wainwright v. Witt , 469 U.S. 412, 426, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) ). The district court held that the Ohio Supreme Court did not unreasonably apply established Supreme Court precedent. Id. at 46. Allen filed a timely appeal.

II.

We review a district court’s denial of a habeas petition de novo. See Cleveland v. Bradshaw , 693 F.3d 626, 631 (6th Cir. 2012). The district court’s findings of fact are reviewed for clear error, and its legal conclusions on mixed questions of law and fact are reviewed de novo. See Gumm v. Mitchell , 775 F.3d 345, 359–60 (6th Cir. 2014). "[T]he habeas petitioner has the burden of rebutting, by clear and convincing evidence, the presumption that the state court’s factual findings were correct." Henley v. Bell , 487 F.3d 379, 384 (6th Cir. 2007) (citing 28 U.S.C. § 2254(e)(1) ) (other citations omitted).

We review this case through two deferential lenses. First, because the determination of juror impartiality is "essentially one of credibility, ... the trial court’s resolution of such questions is entitled ... to special deference." Patton v. Yount , 467 U.S. 1025, 1038, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984) (internal quotations omitted). Second, review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, if a state court has adjudicated the petitioner’s claims on the merits, a writ of habeas corpus may not be granted unless the state court’s 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.

28 U.S.C. § 2254(d).

"For purposes of 28 U.S.C. § 2254(d)(1), clearly established law as determined by [the Supreme] Court ‘refers to...