Coley v. Bagley

• Decision Date: 28 March 2013
• Docket Number: No. 10–3469.,10–3469.
• Parties: Douglas L. COLEY, Petitioner–Appellant, v. Margaret A. BAGLEY, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

706 F.3d 741

Douglas L. COLEY, Petitioner–Appellant,

v.Margaret A. BAGLEY, Warden, Respondent–Appellee.

No. 10–3469.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 3, 2012.

Decided and Filed: Feb. 8, 2013.

Rehearing and Rehearing En Banc^* Denied March 28, 2013.

ARGUED:Kevin M. Cafferkey, Cleveland, Ohio, for Appellant. Ashon L. McKenzie, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF:Kevin M. Cafferkey, John B. Gibbons, Cleveland, Ohio, for Appellant. Ashon L. McKenzie, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: MERRITT, SILER, and SUTTON, Circuit Judges.

OPINION

SILER, Circuit Judge.

Douglas Coley, an Ohio state prisoner, was convicted in Lucas County of aggravated murder, attempted murder, kidnapping, aggravated robbery and firearm specifications. He was sentenced to death on the aggravated murder charges. Coley then petitioned for state postconviction relief, but was turned down at all levels of the state judiciary. He subsequently sought habeas corpus relief in federal court. The district court denied his petition for a writ of habeas corpus. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual Background

1. Kidnapping, Aggravated Robbery and Attempted Murder of David Moore

On December 23, 1996, around 7:30 p.m., while David Moore was unloading his light blue, four-door Ford Taurus at his residence, Joseph Green asked Moore for directions. As Moore obliged, Coley appeared. When Moore moved to leave, Coley and Green held pistols on Moore and forced him into the car. Coley then drove the car away, demanded Moore's cash, and eventually told Moore to get out of the car. While Moore backed out, Coley shot him in the stomach. Moore then ran away, but one of the men chased him, other shots were fired, and Moore fell down. Moore pretended that he was dead, and his assailant walked away.

Moore had been shot in the head, stomach, arms, and twice in the hand. A gun identified as Coley's had ejected the shell casings found on Green Street and fired the bullet removed from Moore's wrist.

On an evening shortly before Christmas, Tyrone Armstrong, a cousin of both Coley and Green, saw Coley and Green in a light blue, four-door Ford Taurus. That same evening, Armstrong witnessed Coley and Green with the same .25 caliber semiautomatic pistols that Armstrong had seen each of them previously carry, and heard Green make up a rap song with the words “I shot him five times and he had dropped.” Green also pointed his gun at Coley and said, “You better never snitch on me.” Coley mimicked the action to Green, repeating, “Better never snitch on me.”

Armstrong identified State Exhibit 32 as the pistol Coley previously carried and also State Exhibit 33 as a pistol belonging to Green. Coley's girlfriend also recognized State Exhibit 32 as a gun she had seen around her house. On December 27, 1996, police recovered Moore's car in an area near the residence of Coley's girlfriend.

2. Kidnapping, Aggravated Robbery, and Murder of Samar El–Okdi

Samar El–Okdi was found dead in an alley behind West Grove Place on January 7, 1997. She had been shot with a .25 caliber bullet from a gun fired at a distance of approximately twelve to eighteen inches. She was wearing the same white shirt, black shoes, and black trousers that she wore to work on January 3. At the scene, police found a live .25 caliber bullet and a .25 caliber shell casing near her body.

El–Okdi had last been seen around 8 p.m. on January 3, 1997. That same day, around 8:45 p.m., as Rosie Frusher left a friend's house at West Grove Place, she heard two gunshots and saw a car nearby in an alley. The car had taillights similar to a Pontiac 6000, the vehicle driven by El–Okdi. Frusher saw a man outside the car bending over and another man sitting in the driver's seat.

That same weekend, Armstrong saw Coley driving a gray Pontiac 6000 that he later identified as El–Okdi's car. On the night his cousins were arrested, Armstrong bought for Green and Coley some cigars and two bottled drinks, which police later found in the Pontiac. Armstrong also admitted that Green and Coley had keys for the Pontiac.

On January 6, El–Okdi's friend was parked on a street waiting to distribute missing-person flyers for El–Okdi and saw El–Okdi's car. The friend identified the car by its dented rear fender and a distinctive bumper sticker, although the license plate was different. The friend followed the Pontiac until the driver parked at an apartment complex and two men got out. Then, after talking with police, the friend and a Toledo detective returned to where the stolen Pontiac was parked. It bore an Ohio license plate which had been stolen from another Pontiac 6000 on January 4, 1997. Police staked out the car until Green, Coley and a woman with a baby got into the Pontiac and drove away. Police forced the Pontiac to stop and arrested Green and Coley.

Upon approaching the vehicle, police noticed that Coley had a metallic object in his hand. Later, on the Pontiac's rear floor, they found a loaded .25 caliber pistol (State Exhibit 32) near where Coley had been sitting. Inside the trunk, police found a black crochet purse that El–Okdi had with her on January 3 when she disappeared. Police also found one of El–Okdi's license plates underneath the stolen rear plate, and they found her other license plate in the car trunk.

A firearms expert examined the .25 caliber bullet removed from El–Okdi's brain, the .25 caliber bullet removed from Moore's wrist, three .25 caliber shell casings from the two crime scenes, and Coley's .25 caliber semiautomatic pistol recovered from the rear floor of El–Okdi's Pontiac. The firearms expert concluded that Coley's pistol was in operating condition and had fired the bullets into Moore and El–Okdi and had ejected the three crime-scene shell casings. After police searched Green's residence, they found an empty box that had contained .25 caliber ammunition.

While in jail, Coley admitted to Armstrong, who was being held on unrelated charges, that he “did it.” Armstrong understood Coley to mean that Coley had shot El–Okdi. Coley also asked Armstrong to lie for him by claiming that Coley had obtained his weapon and the Pontiac from someone named Denny. Additionally,Moore recognized Green and Coley as the men who had shot him. See also State v. Coley, 93 Ohio St.3d 253, 754 N.E.2d 1129, 1134–37 (2001).

B. Procedural Background

In 1997, Coley was indicted by a grand jury on eight counts, including charges of kidnapping, aggravated robbery, and attempted murder of Moore, and three counts of aggravated murder, kidnapping, and aggravated robbery of El–Okdi.

In 1998, Coley was convicted by a jury as charged. The jury found both that Coley was the principal offender in the aggravated murder of El–Okdi and that he committed the offense with prior calculation and design. The trial court sentenced Coley to 58 years in prison for the noncapital counts, and followed the jury's recommendation of death for the aggravated murder of El–Okdi. Coley unsuccessfully sought relief via direct appeal, see State v. Coley, 93 Ohio St.3d 253, 754 N.E.2d 1129 (2001), and an application to reopen that appeal pursuant to Ohio Sup.Ct. Prac. R. 11, § 5(A) (West 2004). See State v. Coley, No. 98–1474, 94 Ohio St.3d 1483, 763 N.E.2d 1182 (Ohio Mar. 4, 2002) (unpublished). While Coley was appointed counsel to assist him in post-conviction proceedings, no post-conviction petition was timely filed on his behalf.

In 2003, Coley sought habeas relief in federal court under 28 U.S.C. § 2254. See Coley v. Bagley, No. 1:02CV0457, 2010 WL 1375217, at *1, 2010 U.S. Dist. LEXIS 33063, at *1 (N.D.Ohio Apr. 5, 2010). The district court denied relief, but granted a certificate of appealability (“COA”) for the following issues: (1) ineffective assistance of trial counsel for failure to object to the indictment; (2) ineffective assistance of trial counsel for failure to request that the trial judge recuse herself; (3) prosecutorial misconduct for using inconsistent theories to convict; (4) ineffective assistance of counsel during mitigation; (5) ineffective assistance of counsel during mitigation for failing to request that trial judge recuse herself based on Moore's letter; (6) ineffective assistance of appellate counsel for failing to raise on appeal the issue of the trial court's review of the letter; (7) the trial court and jury did not consider mitigating evidence; and (8) the trial court's decisions to not provide Coley with grand jury transcripts and to not sever the Moore counts from the El–Okdi counts. See id. at *65–68, 2010 U.S. Dist. LEXIS 33063 at *185–92.

II. ANALYSIS

A. Standard of Review

“In a habeas corpus appeal, we review the district court's legal conclusions de novo, but will not set aside its factual findings unless they are clearly erroneous.” Ivory v. Jackson, 509 F.3d 284, 291 (6th Cir.2007) (citation omitted). The standard for reviewing state-court determinations, by contrast, is governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Frazier v. Huffman, 343 F.3d 780, 787 (6th Cir.2003) (citing Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). Under AEDPA, a writ of habeas corpus should be denied unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented to the state courts. See Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir.2006) (citing 28 U.S.C. § 2254(d)). The petitioner carries the burden of proving that this standard has been met. Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011).

A state court's decision is “contrary to” Supreme Court precedent if (1) “the state court arrives at a conclusion opposite...