Caldwell v. Russell

• Decision Date: 18 March 1999
• Docket Number: No. 96-3581,96-3581
• Citation: 181 F.3d 731
• Parties: (6th Cir. 1999) Tony Caldwell, Petitioner-Appellant, v. Harry K. Russell, Respondent-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 731

181 F.3d 731 (6th Cir. 1999)

Tony Caldwell, Petitioner-Appellant, v. Harry K. Russell, Respondent-Appellee.

No. 96-3581

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: March 18, 1999

Decided and Filed: June 2, 1999

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 94-00077--Herman J. Weber, District Judge.

John H. Forg, FORG & FORG, Cincinnati, Ohio, for Appellant.

Charles L. Wille, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee.

Tony Caldwell, Lebanon, Ohio, pro se.

OPINION

KRUPANSKY, Circuit Judge.

The petitioner-appellant, Tony Caldwell ("Caldwell" or "the petitioner"), a state prisoner convicted of murder under Ohio law, has challenged the district court's denial of his application for a writ of habeas corpus under 28 U.S.C. 2254.¹ He has contended that the lower federal court erroneously rejected his claims that the Ohio state courts had denied him constitutionally guaranteed due process because his jury trial had purportedly been infected by an unfairly prejudicial prosecutorial closing argument and by the state's alleged failure to preserve potentially exculpatory evidence, and because the trial evidence was allegedly insufficient to prove his criminal culpability of murder beyond a reasonable doubt.

On the evening of November 13, 1987, the petitioner, a resident of a rooming house situated in Wellston, Ohio, became involved in an altercation at that location. Caldwell overheard his sister Joyce Reynolds ("Reynolds") admonishing Rick Henry ("Henry"), a fellow boarder at the residential inn, to keep away from her young son, after an intoxicated Henry had engaged the boy in conversation on the boarding home's front porch. A commotion followed, which prompted Caldwell to appear on the porch, physically seize Henry, and instruct him to leave his sister alone. He further invited Henry to fight him if he wanted to fight someone. Reynolds intervened by asking her brother to stay out of "her fight." Caldwell then returned to his upstairs room.

Shortly thereafter, Henry entered Caldwell's dwelling in an effort to resume their confrontation. After Henry resisted Caldwell's instruction to depart his lodging, Caldwell fired a warning volley from his single-shot shotgun over Henry's head. Despite the pleas of Reynolds, and Henry's cohabitating girlfriend Rhonda Tiller ("Tiller"), to desist, Henry continued to harass Caldwell. Caldwell then inflicted a knife wound upon him, which persuaded Henry to return to his apartment, with Tiller's assistance.

Almost immediately upon his return to his chambers, an enraged and inebriated Henry bolted once again for Caldwell's quarters. Armed with a board with protruding nails which he had found in the hallway, Henry burst into Caldwell's room a second time. Caldwell testified at trial that Henry threatened to kill him, and despite Caldwell's warning orders to depart his apartment, Henry advanced towards him. Caldwell fired his shotgun once into Henry's abdomen, inflicting a mortal wound. Although paramedics arrived promptly, Henry expired at a local hospital within several hours. Eyewitnesses, including a paramedic and two police officers, testified at trial that, immediately following the fatal incident, Caldwell repeatedly made statements to the effect that he shot Henry in anger because Henry had invaded his home and was annoying him, and that he disliked him. At trial, no witness at the post-shooting scene testified that Caldwell had then stated that fear for his bodily safety had motivated the shooting, although Caldwell testified that he in fact had acted in self-defense.

On November 27, 1987, an Ohio grand jury returned a two-count indictment against Caldwell for (1) murder, with firearm and prior conviction specifications, under Ohio Rev. Code Ann. 2903.02 & 2941.14,² and (2) possession of a weapon under a disability in violation of Ohio Rev. Code Ann. 2923.13. In 1988, following a jury trial before an Ohio Commons Pleas Court, Caldwell was convicted on both charges. On May 12, 1988, the state trial judge sentenced Caldwell to prison for fifteen years to life for the murder conviction; three years of actual incarceration for the firearm specification to be served consecutive to the murder penalty; and eighteen months to five years of imprisonment for the count of possession of a firearm while under a legal disability, to run concurrently with the murder sentence but consecutively with the punishment imposed for the firearm specification.

On Caldwell's direct appeal, the Ohio Court of Appeals reversed his conviction and sentence, and remanded the cause for a new trial. Caldwell's second jury trial on the two-count indictment culminated on June 25, 1990 with guilty verdicts on both charges. The state trial judge then re-imposed the identical sentence which previously had been ordered following Caldwell's initial conviction, allowing full credit for time served. On April 28, 1992, the Ohio Court of Appeals rejected Caldwell's direct appeal of his second conviction. On October 21, 1992, the Ohio Supreme Court denied Caldwell's petition for leave to appeal to that forum. On February 4, 1994, acting pro se, Caldwell applied in the United States District Court for the Southern District of Ohio for a writ of habeas corpus under 28 U.S.C. 2254. Following the district court's May 7, 1996 adoption, over Caldwell's objections, of a magistrate judge's report and recommendation which had counselled rejection of each of Caldwell's three assignments of constitutional error, and the court's issuance of a certificate of probable cause authorized by former 28 U.S.C. 2253,³ Caldwell on May 28, 1996 initiated a pro se appeal to the Sixth Circuit. On March 24, 1998, this court sua sponte appointed counsel to prosecute Caldwell's appeal. Caldwell's court-sponsored attorney has briefed and argued his appeal before this forum.

A federal appellate court reviews section 2254 inmate petitions de novo; although district court findings of fact are generally reviewed for clear error, factual findings based upon the district court's review of state court records or written decisions (such as those made by the district court in the case sub judice) receive plenary review. Moore v. Carlton, 74 F.3d 689, 690-91 (6th Cir. 1996). Under the pre-April 24, 1996 version of section 2254, which governs this action (see note 3 above), federal courts generally accord a "presumption of correctness" to state court factual findings. 28 U.S.C. 2254(d) (repealed); see Marshall v. Lonberger, 459 U.S. 422, 431-32 (1983). Whereas an appellate court on habeas review decides federal law questions de novo, Marshall, 459 U.S. at 431, the federal reviewing court is generally bound by state court interpretations of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). "[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). A section 2254 habeas petitioner must prove that a state court trial error had denied him a federal constitutional right, and that such denial has caused him "actual prejudice" in that it "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). See also O'Neal v. McAninch, 513 U.S. 432 (1995) (dictating that a constitutional trial error should be deemed prejudicial if "grave doubt" exists regarding whether its effect on the jury's verdict was harmless).

At trial, Caldwell generally did not oppose the state's proof of the Ohio elements of murder. See Ohio Rev. Code Ann. 2903.02;⁴ Rhodes v. Brigano, 91 F.3d 803, 806 (6th Cir. 1996), cert. denied, 520 U.S. 1254 (1997). Instead, he relied upon the affirmative excuse or justification of self-defense. See Ohio Rev. Code Ann. 2901.05(C)(2) (defining "affirmative defense" to include "[a] defense involving an excuse or justification peculiarly within the knowledge of the accused, on which he can fairly be required to adduce supporting evidence"); State v. Martin, 488 N.E.2d 166, 167-68 (Ohio 1986) (explaining that Ohio law recognizes self-defense to comprise an affirmative defense to a murder charge), aff'd, 480 U.S. 228 (1987).⁵ In Ohio, the accused bears the burden of proving an affirmative defense by a preponderance of evidence. Ohio Rev. Code Ann. 2901.05(A); Martin, 488 N.E.2d at 167-69. In the case sub judice, the jurors, via their guilty verdict, revealed that they had not been persuaded that Caldwell had mortally wounded Henry as a justifiable defensive measure.

Through counsel, Caldwell has argued that three constitutional due process errors tainted his second state court trial. Initially, Caldwell has contended that the Ohio prosecutor's closing arguments deprived him of a fair trial by asserting facts not in evidence in opposition to Caldwell's self-defense theory, as well as by interjecting improper prosecutorial opinion regarding the accused's guilt. Prosecutorial misconduct may warrant habeas relief only if the relevant misstatements were so egregious as to render the entire trial fundamentally unfair to a degree tantamount to a due process deprivation. See Donnelly v. DeChristoforo, 416 U.S. 637, 643-45 (1974). Accord United States v. Young, 470 U.S. 1, 11-12 (1985); United States v. Blanford, 33 F.3d 685, 708 (6th Cir. 1994); United States v. Bess, 593 F.2d 749 (6th Cir. 1979).

Caldwell has faulted a passage from the government's initial closing statement:

We had a warning shot fired prior to this over the Defendant's [sic -- victim's] head. That would have required the Defendant to break this [the shotgun] down, remove this bullet or this casing, and put a fresh one in when he thought the fight was over. He didn't tell us about that did he?

The petitioner has additionally assailed...