Bey v. Bagley

• Decision Date: 25 September 2007
• Docket Number: No. 04-4289.,04-4289.
• Citation: 500 F.3d 514
• Parties: Gregory L. BEY, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

500 F.3d 514

Gregory L. BEY, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee.

No. 04-4289.

United States Court of Appeals, Sixth Circuit.

Argued: December 5, 2006.

Decided and Filed: September 25, 2007.

ARGUED: Richard M. Kerger, Kerger & Associates, Toledo, Ohio, for Appellant. Stephen E. Maher, Attorney General's Office of Ohio, Columbus, Ohio, for Appellee. ON BRIEF: Richard M. Kerger, Kimberly A. Conklin, Kerger & Associates, Toledo, Ohio, Ann M. Baronas, Law Offices of Ann M. Baronas, Toledo, Ohio, for Appellant. Stephen E. Maher, Attorney General's Office of Ohio, Columbus, Ohio, for Appellee.

Before: BATCHELDER, ROGERS, and SUTTON, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Petitioner Gregory L. Bey appeals the district court's dismissal of his petition for a writ of habeas corpus. Bey argues that the state trial court violated the United States Constitution by admitting certain "other acts" evidence at trial, over his objection. We find Bey's claim meritless and AFFIRM the judgment of the district court.

I.

In August 1992, police officers in Toledo, Ohio, responded to the scene of an apparent murder/robbery. At the scene, the body of Dale Pinkelman was lying on the floor of his store, Pinkelman's Collectibles, dead from a single stab wound to the chest. Pinkelman's body was in a peculiar state—his pants and shoes had been removed, such that he was lying in his underwear and socks. His shoes were placed neatly next to his body, but his pants were missing and, in fact, were never recovered. The police discovered valuable items on Pinkelman's person, including a gold necklace, rings, and two watches, but there were other items of value for which the police could not account, including merchandise from the store, cash from the register, and Pinkelman's car from the parking lot. The police also discovered a fingerprint and a palm print on a glass display case approximately three feet from Pinkelman's body, for which they could not identify an owner. Despite the peculiar circumstances of the crime and the promising discovery of the finger- and palm prints, the police had no suspect for the apparent murder/robbery and no solid leads.

A few months later, in November 1992, the police found the body of Peter Mihas on the ground outside his restaurant, the Boardroom Restaurant, dead from several stab wounds to the chest. Mihas's pants had been removed and his shoes were placed neatly next to his body. His jewelry remained on his person. Toledo Detective William Gray immediately recognized the similarities between the Mihas murder/robbery and the unsolved Pinkelman case.¹

An informant alerted police of Bey's possible involvement with the Mihas murder and when the police confronted Bey with evidence of his guilt, he confessed to murdering and robbing Mihas. Due to the unusual similarities of the crime scenes, the police compared Bey's finger-and palm prints to the unidentified prints found on the glass display case in Pinkelman's store. The prints matched. The police also found Pinkelman's car less than two blocks from Bey's residence. Armed with this evidence, the police questioned Bey concerning the Pinkelman murder. Bey initially denied that he knew Pinkelman and denied having ever been in his store, but later, Bey admitted that he had purchased a watch from Pinkelman's store on credit. Bey also told the police that he had returned to the store and asked Pinkelman for more time to pay for the watch, but Pinkelman had refused and demanded payment. When the officers asked Bey if he had ever harmed Pinkelman or taken his car, Bey replied that he did not remember and asked to terminate the questioning.

The grand jury returned a four-count indictment, charging two counts of aggravated murder and two counts of aggravated robbery. The aggravated-murder charges each contained the same specification, namely, aggravated murder in the course of an aggravated robbery, which, if found beyond a reasonable doubt, would render Bey eligible for the death penalty under Ohio law. See Ohio Rev.Code § 2929.04(A)(7). Bey moved to sever the trials, so that the Mihas charges (he had confessed to) would be tried separately from the Pinkelman charges. The court granted the motion.

The State prosecuted the Mihas murder first. The jury convicted Bey of both counts—aggravated murder with the corresponding specification, and aggravated robbery—and recommended life imprisonment with eligibility for parole after thirty years. The court adopted the recommendation and entered judgment. See State v. Bryant-Bey, No. L-93-184, 1995 WL 96783 (Ohio Ct.App. March 10, 1995). The State then prosecuted the Pinkelman murder. Prior to trial, Bey moved, pursuant to Ohio R. Evid. 404(B), to exclude "other acts" evidence regarding the Mihas murder. The State opposed the motion and the trial court issued a written, pre-trial order in which it considered Bey's 404(B) argument but denied the motion. The court explained:

The probative value of the Mihas homicide to prove identity has been clearly established by the State. Both victims were male business owners who were confronted in or near their place of business. In both cases, the perpetrator directed violence to the two men through the use of a knife and inflicted the fatal stab wound to the chest. Further[,] the uniqueness of the removal of the trousers and the shoes of the two men supports the admissibility of the evidence pursuant to Evidence Rule 404(B). . . . The State has established the probative value of the other-act evidence by the strong quality of its proof. The `other act' evidence relating to the homicide of . . . Mihas tends to show . . . `identity[.'] Said evidence shall be admitted at trial. However, before evidence of the Mihas homicide is introduced at trial and at the close of all the evidence, the Court shall instruct the jury as to the limited purpose of this evidence.

At trial, the State introduced evidence of the Mihas murder. At the request of Bey's trial counsel, the trial court gave curative instructions, instructing the jurors that they were to consider that evidence only for the purpose of determining the identity of the person who had committed the offense for which Bey was being tried. At the conclusion of the evidence, the jury convicted Bey on all counts and specifications, and recommended a sentence of death. The trial court adopted the recommendation and entered judgment. Bey unsuccessfully appealed his conviction and sentence to the court of appeals, see State v. Bey, No. L-94-003, 1997 WL 586693 (Ohio Ct.App. Sept. 19, 1997), and to the Ohio Supreme Court, see State v. Bey, 85 Ohio St.3d 487, 709 N.E.2d 484 (1999). Thereafter, Bey filed petitions for post-conviction relief in the state courts, and, at least with regard to the Ohio R. Evid. 404(B) issue before us in this appeal, exhausted his state-court remedies.

In October 2001, Bey filed his petition for writ of habeas corpus with the federal district court, asserting twenty-five grounds for relief. In September 2004, the district court denied the petition and refused to grant a certificate of appealability. In November 2005, we granted a certificate of appealability on one issue, namely, Bey's claim that:

Petitioner's conviction and sentence are in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution in that the trial court erred to the prejudice of Petitioner when it permitted the State to introduce `other acts' evidence without first conducting an analysis of whether the prejudicial impact of the evidence outweighed its probative value.

In his appellate brief, however, Bey restates the issue thus:

ISSUE ON APPEAL: Petitioner's conviction and sentence are in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution in that the trial court erred to the prejudice of Petitioner when it permitted the State to introduce `other acts' evidence which denied him due process of law.

II.

"We review de novo the district court's denial of . . . [a] petition for a writ of habeas corpus." Clinkscale v. Carter, 375 F.3d 430, 435 (6th Cir.2004). Because Bey filed his habeas petition after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we review his claim under the standards set forth in that statute. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA a federal court may grant a writ of habeas corpus only where the state court's adjudication "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." 28 U.S.C. § 2254(d)(1). "A federal habeas court may issue the writ under the `contrary to' clause if the state court applies a rule different from the governing law set forth in [Supreme Court] cases, or if it decides a case differently than [the Supreme Court has] on a set of materially indistinguishable facts." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). "The [federal] court may grant relief under the `unreasonable application' clause if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case." Id.

Bey's statement of the sole issue on appeal differs from the issue on which we granted the certificate of appealability, and from the issues he raised in his habeas petition. Notwithstanding, we will address the claim Bey now puts before us, and, finding it baseless, lay it to rest.

In reconstructing his issue, Bey has separated it into two distinct claims: (1) "The Trial Court Erred to the Prejudice of Petitioner [w]hen It Permitted the Jury to Hear Other Acts Evidence of Petitioner's Previous Homicide Conviction"; and (2) "The State's Use of Other Acts Evidence...