Carter v. Mitchell

• Decision Date: 13 July 2016
• Docket Number: No. 13-3996,13-3996
• Citation: 829 F.3d 455
• Parties: Cedric Carter, Petitioner–Appellant, v. Betty Mitchell, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

829 F.3d 455

Cedric Carter, Petitioner–Appellant

v.Betty Mitchell, Warden, Respondent–Appellee.

No. 13-3996

United States Court of Appeals, Sixth Circuit.

Argued: April 20, 2016

Decided and Filed: July 13, 2016

ARGUED: Keith A. Yeazel, Columbus, Ohio, for Appellant. Thomas E. Madden, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Keith A. Yeazel, Columbus, Ohio, for Appellant. Thomas E. Madden, Jocelyn S. Kelly, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: COLE, Chief Judge; CLAY and SUTTON, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Petitioner Cedric Carter, who was convicted and sentenced to death by an Ohio jury in 1992, appeals the order of the district court denying him a writ of habeas corpus, which he had sought pursuant to 28 U.S.C. § 2254, and denying him a stay of the federal habeas proceedings. For the reasons that follow, we AFFIRM.

BACKGROUND

Factual Background

In its decision affirming Carter's conviction and sentence on direct appeal, the Ohio Supreme Court described the facts giving rise to this case as follows:

In the early morning hours of April 6, 1992, Frances Messinger was murdered while working alone as a clerk at a United Dairy Farmers convenience store (“UDF”) in Cincinnati. A grand jury returned an indictment charging appellant, Cedric Carter, in two counts, with aggravated murder in violation of R.C. 2903.01(B) and aggravated robbery in violation of R.C. 2911.01 based on the events surrounding Messinger's death. The indictment included a felony-murder death specification pursuant to R.C. 2929.04(A)(7), charging Carter with causing death while committing or attempting to commit aggravated robbery, and being the principal offender in an aggravated murder, or alternatively with committing a murder with prior calculation and design. Both counts also contained gun specifications. A jury found Carter guilty as charged and recommended that he be sentenced to death. The death sentence was subsequently imposed by the trial court.

At approximately 2:15 a.m. on April 6, 1992, Carol Blum, a waitress working directly across the street from the UDF, dialed 911 and reported that she had just seen two black males running from the UDF. At trial, Blum testified that immediately prior to calling 911, she saw two men inside the UDF—one man in front of the counter with both arms extended toward the register with hands together pointing to something, and the second man behind the counter near the register. She saw the man behind the counter bend down, and then observed both men run out. The waitress did not see Messinger standing at any time while she was observing the incident. When Messinger's body was discovered shortly thereafter, an unmelted ice-cream cone was found on the floor of the UDF in the area in front of the counter near the exit doors.

On April 7 one Kenny Hill surrendered himself to authorities in connection with the Messinger murder. Based on information provided by Hill, police obtained a search warrant for an apartment at which Carter was temporarily residing. Carter was arrested in the early morning hours of April 8, 1992 during the course of the search which followed. During the search the police recovered the murder weapon, a .38 caliber Smith & Wesson five-shot revolver manufactured between 1877 and 1891, the hammer of which must be pulled back manually prior to the firing of each round.

Following his arrest, Carter was taken to police headquarters to be interviewed. At approximately 3:50 a.m. Carter signed a waiver of rights form, which recited his rights as delineated in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. During the tape-recorded statement which followed, Carter admitted being present at the UDF during the course of the robbery, but initially identified Hill as the shooter. The police then discontinued taping the interview, and told Carter his statement was inconsistent with statements police had obtained from other witnesses. Upon resumption of the taping, Carter admitted that he was the shooter at the UDF robbery.

At trial the state and the defense agreed to many of the facts surrounding the robbery. Both parties are in accord that three men were involved: Carter, Hill (who also entered the UDF store), and Virgil Sims (who drove the car used by Carter and Hill before and after the murder). It is undisputed that Carter shot two times and that one bullet lodged in a carton of cigarettes in a cabinet behind the cash register, while the second struck Messinger in her forehead, killing her.

Carter testified at the trial and admitted involvement in the crime. Carter testified that he entered the UDF first (without a gun) and that Hill followed shortly thereafter, carrying with him the .38 caliber Smith & Wesson revolver. Carter ordered an ice cream cone, and while Messinger was standing at the cash register to accept payment for the cone, Hill passed the gun to Carter. Carter denied, however, that he had intended to kill Messinger. He testified that he had been a heavy user of crack cocaine; that he used significant amounts of alcohol, marijuana and crack cocaine during the period leading up to the murder; and that Hill was his supplier. Although Carter admitted that he entered the store with the intent to rob it, he testified that he and Hill had not talked about robbing the store until immediately prior to the robbery. He further testified that he never intended to be the one to hold the gun during the robbery. He admitted, however, that he knew the gun had bullets, and that Hill had showed him earlier in the day how to shoot it. He further admitted that before robbing the UDF the three had participated in “a lot” of robberies of drug dealers that same evening, and that only Hill had used the gun to threaten the victims in those robberies while Carter remained in the car. Carter testified that he first fired the gun at the floor to scare Messinger as she pushed the gun away and shut the register drawer. Carter testified he told Messinger to open the cash register, but she refused. He stated that Hill then suggested leaving, and that as they turned to leave, he fired a second shot when Messinger began fumbling in an apparent attempt to push an alarm button. Carter maintained consistently that he did not aim at Messinger, but instead aimed to fire a shot by her to scare her, and never intended to shoot her.

Medical testimony established that Messinger was killed as a result of a bullet wound which entered her forehead slightly left of the midline. The bullet traveled sharply left to right, and front to rear, with a slight upward angle. No stippling or gunpowder burns were found on Messinger's skin, indicating that the gun had been fired from a distance greater than one foot.

State v. Carter , 72 Ohio St.3d 545, 651 N.E.2d 965, 969–70 (Ohio 1995).

Procedural History

Carter's trial

A jury in the Court of Common Pleas of Hamilton County, Ohio found Carter guilty of aggravated murder on July 11, 1992. Four days later, the jury recommended a death sentence. The trial court adopted the jury's recommendation and sentenced Carter to death on July 30, 1992.

Prior to trial, Carter was referred to specialists to determine whether he was competent to stand trial, or was not guilty by reason of insanity. The evaluations, which were sent to the prosecution as well as the defense by order of the trial court, indicated “malingering to avoid prosecution” and mentioned Carter's drug use and past abuse of women and included graphic descriptions of his cruelty to animals. (J.A. vol. 3, p. 938.) The defense requested the appointment of Dr. David Chiappone, a psychologist affiliated with the court clinic, as a mitigation expert. Dr. Chiappone's assistant, a social worker named Edward Wantuck, conducted extensive interviews with Carter's family and friends, but the summaries of these conversations (the “Wantuck reports”), were never given to the jury or introduced in any state proceeding. By the time of his mitigation presentation at the sentencing phase of the trial, Dr. Chiappone had been in contact with trial counsel for some two months, and had spent approximately five hours with Carter. Dr. Chiappone estimated that he had previously testified as a mitigation expert in six or seven capital trials.

At the sentencing phase, trial counsel called Richard Spaulding, Carter's stepfather, who had known Carter for about three years, as a mitigation witness, but did not call Carter's mother. Carter then read an unsworn statement expressing remorse. Dr. Chiappone was the final witness for the defense. On direct examination, trial counsel had Dr. Chiappone present a psychological portrait that included some of the trauma that Carter had experienced during childhood, but also touched on his drug use, abuse of women, interest in violence, and animal cruelty. Dr. Chiappone evidently was hard to hear, at least initially. At various points early in his testimony, jurors raised their hands to signal to the court that they could not hear the witness. During deliberations, the jury requested a transcript of Dr. Chiappone's testimony, which the court denied. The jury recommended a death sentence on July 15, 1992.

Post-trial state court proceedings

Carter took his initial direct appeal to the Ohio Court of Appeals, which affirmed his conviction and sentence. State v. Carter , No. C–920604, 1993 WL 512859 (Ohio Ct. App. Nov. 3, 1993). The Ohio Supreme Court also affirmed Carter's conviction and sentence. Carter , 651 N.E.2d at 980. The United States Supreme Court subsequently denied certiorari. Carter v. Ohio , 516 U.S. 1014, 116 S.Ct. 575, 133 L.Ed.2d 498 (1995).

Carter filed his first state post-conviction petition in 1996, which was denied. The Ohio Court of Appeals affirmed the denial of relief, State v. Carter , No. C–960718, 1997 WL 705487 (Ohio Ct. App. Nov. 14, 1997), and the Ohio Supreme Court declined to hear the case because it did not...