Calvert v. Wilson, 00-3713.

• Decision Date: 24 April 2002
• Docket Number: No. 00-3713.,00-3713.
• Citation: 288 F.3d 823
• Parties: Vincent L. CALVERT, Petitioner-Appellant, v. Julius WILSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

288 F.3d 823

Vincent L. CALVERT, Petitioner-Appellant, v. Julius WILSON, Warden, Respondent-Appellee.

No. 00-3713.

United States Court of Appeals, Sixth Circuit.

Argued: October 31, 2001.

Decided and Filed: April 24, 2002.

COPYRIGHT MATERIAL OMITTED

David H. Bodiker (briefed), Siobhan R. O'Keeffe (argued and briefed), Public Defender's Office, Ohio Public Defender Commission, Columbus, OH, for Petitioner-Appellant.

Stuart A. Cole, Asst. Attorney General (argued), Todd R. Marti, Stuart W. Harris, Office of the Attorney General Corrections Litigation Section, Columbus, OH, for Respondent-Appellee.

Before SILER and COLE, Circuit Judges; STAFFORD, District Judge.^*

OPINION

STAFFORD, District Judge.

Petitioner, Vincent L. Calvert ("Calvert"), appeals the denial of his petition for writ of habeas corpus by a person in state custody. We reverse.

I. THE EVIDENCE

In February of 1996, the grand jury of Guernsey County, Ohio, returned an indictment charging Calvert and Erwin Mallory ("Mallory") with one count of aggravated robbery and one count of aggravated murder with a death penalty specification. Although charged in the same indictment with the same offenses, Calvert and Mallory were tried separately. Calvert went to trial first.

At Calvert's trial, the prosecutor introduced a statement given by Calvert to police officers after his arrest. According to Calvert, on the afternoon of February 4, 1996, he spent three or four hours playing cards and drinking whiskey with Robert Bennett ("Bennett") in Bennett's apartment. When he left Bennett's apartment at four or five o'clock in the afternoon, Calvert first went to the apartment of Paul Bates, from whom he borrowed some money, then went to the apartment of an acquaintance, Cindy Chalfant ("Chalfant"), who lived in the apartment next to Bennett's. Mallory soon after knocked on Chalfant's door and asked Calvert to go next door with him to see Bennett, who — Mallory said — had ripped Mallory off the previous night for one hundred dollars. When Bennett, a white man, saw Mallory at his door, he immediately began yelling at Mallory, using a racial epithet and telling him to get out. All three men were intoxicated.

Calvert told police officers that, not thirty seconds after Mallory and Calvert entered Bennett's apartment, Mallory pulled a hatchet from under his field jacket and started hitting Bennett on the back of the head. After several hits, Mallory stopped the beating and even helped Bennett into a chair at the kitchen table. He began the beating again, however, this time with a stick, when he heard Bennett ask Calvert to help him get Mallory out of his house. When the stick broke, Mallory picked up a butcher knife and — approaching Bennett from behind — slashed Bennett across the throat. Calvert, who was sitting at the table facing Bennett when blood started flying, got up from his chair, told Mallory he was crazy, and ran from the scene, leaving Mallory and Bennett — still alive at the time — in the apartment.

Calvert explained that, after leaving Bennett's apartment, he took a cab to a bar in Byesville, Ohio. He stayed at the bar until closing, at which time friends took him to his home, which was also in Byesville. The next morning, he took a cab to Chalfant's apartment where police officers soon after found him still dressed in the blood-spattered clothes he was wearing the evening before. Calvert told the officers that he neither killed Bennett nor knew anything about Mallory's plan to kill him. Calvert was placed under arrest and taken to the police department where he gave the statement that was later heard by the jury at trial.

The prosecutor called Mallory as a witness, but Mallory asserted his Fifth Amendment privilege against self-incrimination and refused to testify. Over defense counsel's objection, the trial court then admitted a tape-recorded confession given by Mallory to the police after his arrest. In that confession, Mallory described a different version of the events that resulted in Bennett's death.

Mallory admitted that he and Bennett argued on February 3, 1996, the day before the murder, about some money Mallory claimed he had won from Bennett in a card game. A neighbor broke up the argument, telling Mallory — among other things — to put down the ax he was using to threaten Bennett. Mallory did not explain to the officers why he had taken an ax to Bennett's apartment.

Mallory told the officers that Bennett invited both Mallory and Calvert to play cards with him the very next evening, February 4, 1996. After playing cards for approximately fifteen minutes, Mallory and Calvert left Bennett to go to Mallory's apartment where they armed themselves with knives and a hammer for the purpose of killing Bennett. The two men soon after returned to Bennett's apartment, where — according to Mallory — they both attacked Bennett, Calvert using the hammer and a paring-type knife, Mallory using a butcher knife and Bennett's walking stick. Mallory said that after he and Calvert had beaten and stabbed Bennett multiple times, Calvert slashed Bennett's throat. The two then left Bennett's apartment.

While Calvert returned to Chalfant's apartment to call a cab, Mallory returned to his own apartment to change clothes. Mallory admitted that, while he was there, he disposed of the murder weapons. He threw the hammer out a window in his apartment and he dropped the knives in the storm sewer in front of his apartment building. Mallory explained that a third knife, which was found by police officers inside Mallory's building on the ground floor, was not used on Bennett.

Responding to Calvert's call, a Round the Clock Cab Company cabdriver picked up both Calvert and Mallory, taking them to a bar in Byesville. Mallory said that he left the bar about thirty minutes later to go back to his apartment. He was arrested the next day at home.

Bennett's grandson, Brian Bennett, testified that, when he visited his grandfather early on the evening of February 4, 1996, his grandfather was upset not only about having lost some money but also about Mallory's having threatened him with a butcher knife. The grandson said that he had known Mallory for three or four months before his grandfather's death but had never met or seen Calvert.

Dr. Patrick Fardal testified that Bennett died as a result of multiple stab wounds to his trunk, chest and abdomen. He did not die from trauma to the head.

II. THE PROCEEDINGS

The jury found Calvert guilty as charged. The trial court followed the jury's recommendation and sentenced Calvert to life imprisonment, with parole eligibility after thirty full years, for the aggravated murder. The judge sentenced Calvert to a consecutive term of ten to twenty-five years in prison for the aggravated robbery.

Calvert appealed his conviction to the Guernsey County Court of Appeals, arguing, among other things, that the trial court erred by allowing Mallory's tape-recorded statement into evidence, contrary to the Confrontation Clause of the Sixth Amendment to the United States Constitution. The Guernsey County Court of Appeals affirmed Calvert's conviction, finding that Mallory's statement was properly admitted as a statement against the declarant's interest under Rule 804(b)(3) of the Ohio Rules of Evidence. The appellate court also found that Mallory's statement "was collaborated [sic] by other evidence and witnesses" and was, therefore, trustworthy. Calvert's appeal for discretionary review in the Ohio Supreme Court was dismissed on April 1, 1998, as not involving any substantial constitutional question.

On February 19, 1999, Calvert filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. He again raised the Confrontation Clause issue. The district court found that the trial court's admission of Mallory's statement was error, constituting a violation of Calvert's right to confront witnesses. Calvert was nonetheless denied relief because the district court found the error to be harmless. Calvert filed a timely notice of appeal, and the district court granted leave to proceed in forma pauperis and a certificate of appealability on the Confrontation Clause issue.

III. STANDARD OF REVIEW

We review a district court's legal conclusions in a habeas proceeding de novo and its factual findings for clear error. Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir.1999). Because Calvert's habeas petition was filed after April 24, 1996, our review is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP1A"), 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996). As amended, AEDPA provides, in relevant part, that a federal court may not grant a petition for writ of habeas corpus unless the state court adjudication of the claim "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).

In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court explained that a state court acts "contrary to" clearly established Supreme Court precedent if it "arrives at a conclusion opposite to that reached by this Court on a question of law" or if it "decides a case differently than this Court has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413, 120 S.Ct. 1495 (Justice O'Connor's Part II majority opinion). The Court also explained that a state court's decision involves an "unreasonable application" of clearly established federal law if it either (1) correctly identifies the governing legal principle from the Supreme Court's decisions but then unreasonably applies that principle to the facts of the prisoner's case, or (2) unreasonably extends, or unreasonably declines to extend, a clearly established legal principle to a new context. Notably, an "unreasonable" application is an "objectively unreasonable" application. Williams, ...