Carter v. Mitchell, 06–4238.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation693 F.3d 555
Docket NumberNo. 06–4238.,06–4238.
PartiesCedric CARTER, Petitioner–Appellant, v. Betty MITCHELL, Warden, Respondent–Appellee.
Decision Date06 September 2012

693 F.3d 555

Cedric CARTER, Petitioner–Appellant,
Betty MITCHELL, Warden, Respondent–Appellee.

No. 06–4238.

United States Court of Appeals,
Sixth Circuit.

Argued: Dec. 1, 2010.
Decided and Filed: Sept. 6, 2012.

[693 F.3d 558]

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, Gregory W. Meyers, Ohio Public Defender's Office, Columbus, Ohio, for Appellant. Holly E. LeClair, Charles E. Willie, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: MARTIN, CLAY, and SUTTON, Circuit Judges.

MARTIN, J., delivered the opinion of the court in which CLAY, J., joined, and SUTTON, J., joined in part.
SUTTON, J. (pp. 569–72), delivered a separate opinion concurring in part and dissenting in part.


BOYCE F. MARTIN, JR., Circuit Judge.

Cedric Carter appeals the district court's denial of his petition for a writ of habeas corpus. An Ohio jury convicted Carter of murdering a store clerk while robbing a convenience store and recommended that the court impose a sentence of death. Carter now asserts fifty grounds for relief in support of his petition for a writ of habeas corpus, all of which the district court either denied on the merits or found to be procedurally defaulted. We granted a certificate of appealability on two issues: (1) whether the state courts improperly used the “nature and circumstances” of the offense as aggravating, rather than mitigating, factors; and (2) whether the district court properly dismissed Carter's ineffective assistance of counsel claims because he procedurally defaulted those claims in state court. While the district court correctly denied habeas relief on the first issue, it erred in finding Carter's ineffective assistance of trial counsel claims to be procedurally defaulted. Therefore, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings.


We rely on the facts as determined by the state appellate court on direct review. See, e.g., Girts v. Yanai, 501 F.3d 743, 749 (6th Cir.2007); see also28 U.S.C. § 2254(e)(1) (providing that in a habeas proceeding “a determination of a factual issue made by a State court shall be presumed to be correct” unless the applicant rebuts the presumption “by clear and convincing evidence”). On direct appeal, the

[693 F.3d 559]

Ohio Supreme Court, State v. Carter, 72 Ohio St.3d 545, 651 N.E.2d 965, 969–70 (1995), set forth the following facts:

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.... 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, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 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

[693 F.3d 560]

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.

In 1992, an Ohio jury convicted Carter of aggravated murder and aggravated robbery. The trial court adopted the jury's recommendation and sentenced Carter to death. On direct appeal, the Ohio Court of Appeals affirmed Carter's convictions and sentence, State v. Carter, No. C–920604, 1993 WL 512859 (Ohio Ct.App. Nov. 3, 1993) (unpublished opinion), as did the Ohio Supreme Court, Carter, 651 N.E.2d at 980. The United States Supreme Court denied certiorari. Carter v. Ohio, 516 U.S. 1014, 116 S.Ct. 575, 133 L.Ed.2d 498 (1995). Carter raised a number of issues at all levels of his direct appeal, including that his trial counsel were constitutionally ineffective at the penalty phase by eliciting unfavorable mitigation evidence and failing to call Carter's mother to testify about his upbringing. Carter also alleged that the trial court violated his rights by failing to provide the jury with the transcript of his mitigation expert's testimony as the jury requested.

Carter subsequently filed a petition for post-conviction relief in state court, which the trial court denied. The Ohio Court of Appeals affirmed the trial court's denial of Carter's petition, State v. Carter, No. C–960718, 1997 WL 705487 (Ohio Ct.App. Nov. 14, 1997) (unpublished decision), and the Ohio Supreme Court denied Carter's request for further review, State v. Carter, 81 Ohio St.3d 1467, 690 N.E.2d 1287 (1998) (unpublished table decision). The United States Supreme Court denied certiorari. Carter v. Ohio, 525 U.S. 848, 119 S.Ct. 120, 142 L.Ed.2d 97 (1998). In these petitions Carter again asserted numerous violations of his constitutional rights including that he had been denied the effective assistance of counsel at the penalty phase of trial.

In 1998, Carter filed a petition in federal court, alleging fifty grounds for habeas relief. One of these claims asserted that Carter received constitutionally ineffective assistance of counsel during his direct appeal. Because Carter had not yet pursued this claim in the Ohio courts, in 1999 he filed an application to reopen his direct appeal under Ohio Rule of Appellate Procedure 26(B). This was several years after the filing deadline and the Ohio Court

[693 F.3d 561]

of Appeals denied his application on the basis that Carter had not demonstrated good cause for his untimely filing. State v. Carter, No. C–920604, 1999 WL 33441359 (Ohio Ct.App. Oct. 21, 1999) (unpublished opinion). Carter did not appeal that decision to the Ohio Supreme Court.

In 2000, Carter filed a...

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