Beuke v. Houk

• Decision Date: 13 August 2008
• Docket Number: No. 96-3050.,96-3050.
• Citation: 537 F.3d 618
• Parties: Michael BEUKE, Petitioner-Appellant, v. Marc C. HOUK, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

537 F.3d 618

Michael BEUKE, Petitioner-Appellant, v. Marc C. HOUK, Warden, Respondent-Appellee.

No. 96-3050.

United States Court of Appeals, Sixth Circuit.

Argued: March 14, 2007.

Decided and Filed: August 13, 2008.

ARGUED: Ken F. Murray, Office of The Federal Public Defender, Phoenix, Arizona, for Appellant. Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Ken F. Murray, Megan B. Moriarty, Office of the Federal Public Defender, Phoenix, Arizona, for Appellant. Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: MARTIN, NORRIS, and BATCHELDER, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court, in which NORRIS, J., joined. MARTIN, J. (pp. 655-60), delivered a separate dissenting opinion.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Petitioner-Appellant Michael Beuke ("Beuke") appeals the district court's dismissal of his petition for writ of habeas corpus. On appeal, Beuke raises thirteen issues for our review. Because Beuke filed his habeas petition prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), we apply pre-AEDPA standards of review. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). After careful consideration, we find Beuke's arguments to be without merit and therefore AFFIRM the judgment of the district court.

I.

On May 14, 1983, Gregory Wahoff offered a ride to Michael Beuke who was walking along the side of the road. Once inside Wahoff's car, Beuke produced a .38 caliber revolver and demanded that Wahoff drive to a rural area in Hamilton County, Ohio. When they reached a sufficiently secluded area, Beuke led Wahoff into the woods; Wahoff eventually charged towards Beuke, attempting to wrestle the gun away from him. After this effort was unsuccessful, Wahoff began to run away, but Beuke shot him in the back, lodging a bullet in his spine and paralyzing him. Beuke then placed the gun against Wahoff's face and fired a second shot, which passed through Wahoff's cheek and lodged in the ground. Wahoff was fully conscious at this point, but he pretended to be dead and apparently succeeded in fooling Beuke, who returned to the car and drove off. Later that day, the police found Wahoff and took him to the hospital for emergency treatment; Wahoff survived Beuke's brutal attack.

A few weeks later, on June 1, 1983, the police discovered Robert Craig's body in a ditch on the side of a rural road in Clermont County, Ohio. Craig worked as a deliveryman supplying fresh fish to local restaurants, and during these travels, he would often offer rides to hitchhikers in the area. Beuke allegedly told Michael J. Cahill, a man with whom Beuke worked, that he killed Craig after Craig picked him up along the side of the highway. An autopsy on Craig's body revealed that he was shot twice in the head and once in the chest, and the police found his abandoned car in the parking lot of a local shopping mall.

Two days later, on June 3, 1983, Bruce Graham saw Beuke walking down the highway with a red gas can in hand. In an effort to help the apparently stranded traveler, Graham offered Beuke a ride to the nearest gas station. As he had done with Wahoff, Beuke brandished a short-barreled revolver and instructed Graham to drive to a rural area. When they arrived at the secluded destination, Beuke immediately fired at Graham. The bullet grazed Graham's forehead, inflicting a minor but bloody wound. After an unsuccessful effort to wrestle the gun from Beuke, Graham sought refuge in a nearby farmhouse. As Graham fled, Beuke fired several shots, one of which struck Graham in the shoulder. After Beuke realized that Graham had escaped to safety, he got into the car and left the scene of the shooting.

Sometime thereafter, Beuke's co-worker, Cahill, told the police what he knew of Beuke's involvement in the "mad hitchhiker" shootings. The police obtained a warrant and searched the car that Beuke had been driving, which he had borrowed from Cahill. The police discovered a cup that had been removed from Wahoff's car, a red gas can, and a blood-stained football jersey. The officers arrested Beuke who, at the time of his arrest, was in possession of a .38 caliber revolver—the same type of weapon he used to shoot Wahoff in the back.

In July 1983, an Ohio grand jury returned a ten-count indictment against Beuke, charging him with one count of aggravated murder, two counts of attempted aggravated murder, three counts of aggravated robbery, three counts of kidnaping, and one count of carrying a concealed weapon. The aggravated murder charge included two specifications, either of which, if proven beyond a reasonable doubt, would make Beuke eligible for the death penalty under Ohio law: (1) committing aggravated murder as part of a course of conduct involving the purposeful attempt to kill two or more persons, and (2) committing aggravated murder in the course of an aggravated robbery.

Beuke's jury trial began on September 19, 1983. The prosecution introduced extensive evidence implicating Beuke in the "mad hitchhiker" shootings, including Wahoff's and Graham's testimony of their nearly fatal encounters with Beuke, evidence linking the bullets extracted from Wahoff and Craig to Beuke's gun, Beuke's fingerprints on Wahoff's and Craig's automobiles, and Cahill's testimony about Beuke's confession. On October 5, 1983, the jury returned a guilty verdict on all ten counts and the two specifications, making Beuke eligible for capital punishment. Beuke's counsel moved for a continuance of the penalty hearing, but the trial court granted only a short, one-day continuance and set the hearing for October 7, 1983. At the penalty hearing, Beuke introduced a presentence report and mitigation testimony from his parents. Unpersuaded by the defense's evidence, the jury found beyond a reasonable doubt that the aggravating factors outweighed the mitigating evidence and recommended that Beuke be sentenced to death. The trial court adopted the jury's recommendation and imposed the death penalty.

Beuke appealed his conviction and sentence to the Ohio First District Court of Appeals,¹ alleging twenty-six assignments of error. The appellate court denied Beuke's appeal in March 1986. See State v. Bueke, No. C-830829, 1986 WL 3750 (Ohio Ct.App. Mar.26, 1986).² Beuke then appealed to the Supreme Court of Ohio; that appeal was denied in 1988. See State v. Beuke, 38 Ohio St.3d 29, 526 N.E.2d 274 (1988). Beuke next sought a writ of certiorari from the United States Supreme Court, which was denied in 1989. See Beuke v. Ohio, 489 U.S. 1071, 109 S.Ct. 1356, 103 L.Ed.2d 823 (1989).

In November 1989, having completed his direct appeal, Beuke filed a petition for post-conviction relief in state court, asserting eighty-five errors and requesting an evidentiary hearing. Some of the newly raised claims not asserted on direct appeal included ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and a Brady claim for the withholding of exculpatory evidence. The trial court summarily denied Beuke's petition without an evidentiary hearing. In August 1991, the state appellate court affirmed the trial court's dismissal, see State v. Beuke, No. C-900718, 1991 WL 155219 (Ohio Ct. App. Aug. 14, 1991), and the Ohio Supreme Court denied discretionary review, see State v. Beuke, 62 Ohio St.3d 1496, 583 N.E.2d 968 (1992).

On June 18, 1992, Beuke filed a petition for a writ of habeas corpus with the district court, asserting ninety-two grounds for relief. The state filed a motion to dismiss, contending that Beuke had not exhausted his ineffective assistance of appellate counsel claim because he did not raise that claim in a motion for delayed reconsideration, as was required under the Ohio Supreme Court's decision in State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204, 1209 (1992). On June 30, 1992, perhaps realizing that he had yet to exhaust his state remedies, Beuke filed a motion for delayed consideration with the Ohio First District Court of Appeals, alleging that he was denied effective assistance of appellate counsel. In September 1992, the district court granted the warden's motion and dismissed Beuke's habeas petition without prejudice for failure to exhaust state remedies.

In December 1992, the Ohio First District Court of Appeals denied Beuke's motion for delayed consideration because he failed to demonstrate good cause to justify his untimely filing as required by Ohio's procedural rules. The Ohio Supreme Court affirmed that decision. See State v. Beuke, 67 Ohio St.3d 1500, 622 N.E.2d 649 (1993). In November 1993, Beuke filed with the Ohio Supreme Court a motion for delayed reinstatement of his direct appeal, alleging that he was denied the effective assistance of appellate counsel on direct review. The Ohio Supreme Court denied that motion in March 1994.

In May 1994, Beuke filed a new habeas petition with the district court, which, after it was amended, included eighty-eight grounds for relief. More than a year after he instituted these habeas proceedings, Beuke filed two motions to expand the record, and a petition for leave to conduct discovery. The district court denied all of these motions on October 18, 1995. The very next day—October 19, 1995—the district court denied Beuke's habeas petition, concluding that he had procedurally defaulted fifty-eight of his eighty-eight claims, and rejecting the remainder of his claims as lacking substantive merit. Beuke obtained a certificate of probable cause from the district court, and filed a timely notice of appeal to this court. We granted Beuke's motion to hold this case in abeyance pending the completion of (1) his second attempt at state post-conviction relief and (2) his civil suit seeking documents from the Federal Bureau of Investigation ("FBI") under the Freedom of Information Act ("FOIA...