Cooey v. Coyle

Decision Date16 April 2002
Docket NumberNo. 98-3050.,98-3050.
Citation289 F.3d 882
PartiesRichard COOEY, Petitioner-Appellant, v. Ralph COYLE, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Margery Malkin Koosed (argued and briefed), South Euclid, OH, Nathan A. Ray (briefed), Akron, OH, for Appellant.

Michael L. Collyer (argued and briefed), Office of the Attorney General of Ohio, Capital Crimes Section, Cleveland, OH, for Appellee.

Before: SUHRHEINRICH, SILER, and GILMAN, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

This is an appeal from a judgment denying Petitioner Richard Cooey's petition for writ of habeas corpus under 28 U.S.C. § 2254. We determine that Cooey is entitled to a certificate of appealability on only two of his claims. We also decide on the merits that Cooey is not entitled to relief as to either issue.

I. Background
A. Facts

On the night of August 31, 1986, Appellant, Richard Wade Cooey II, on leave from the army, and two of his friends, Clint Dickens and Kenneth Horonetz, threw a large chunk of concrete over the side of a bridge just as Wendy Offredo and Dawn McCreery were passing below along Interstate 77 in Akron, Ohio. The concrete hit Wendy's car, forcing her to pull over. The men went down and offered a ride so the women could call for help. After driving them to a nearby mall to use a telephone, the men took the women to a field where they were raped, beaten, and murdered by Cooey and Dickens. The men also stole Wendy's jewelry.

The bodies were found on September 1. The Summit County Coroner concluded that Wendy and Dawn had died of multiple blows to the head—Wendy received at least three blows and Dawn at least eleven — with strangulation also contributing to Wendy's death. He also concluded that both women had oral and vaginal intercourse before death.

B. Procedural History

Cooey was indicted on September 8, 1986, with two counts of aggravated murder in violation of Ohio Rev.Code §§ 2903.01(A) and 2903.01(B), including three specifications of aggravating circumstances in violation of Ohio Rev.Code §§ 2929.04(A)(3), 2929.04(A)(5), and 2929.04(A)(7). Cooey was also charged with two counts of kidnapping with the purpose of engaging in nonconsensual sexual activity, in violation of Ohio Revised Code § 2907.02(A); and two counts of aggravated robbery, in violation of Ohio Rev. Code §§ 2911.01(A)(1) and 2911.01(A)(2). Lastly, he was charged with one count of felonious assault, in violation of Ohio Rev. Code § 2903.11(A)(2), for dropping the chunk of concrete on Wendy's car.

Cooey entered a not guilty plea. Cooey waived his right to trial by jury and was tried by a three-judge panel according to Ohio Rev.Code §§ 2945.05 and 2945.06. The panel found Cooey guilty of all counts and specifications.

On December 5, 1986, the panel conducted a mitigation hearing, pursuant to Ohio Rev.Code § 2929.03(C)(2)(b). The panel returned a unanimous verdict, finding beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors, and recommended the death penalty. The two aggravated murders under § 2903.01(A) were merged into the two convictions under Ohio Rev.Code § 2903.01(B). Cooey was sentenced to death for each murder and to imprisonment for the seven other felonies.

Cooey timely appealed, setting forth thirteen assignments of error. The Ohio Court of Appeals upheld Cooey's conviction and sentence on December 23, 1987. See State v. Cooey, 1987 WL 31921 (Dec. 23, 1987). Cooey appealed to the Ohio Supreme Court, raising thirty-three issues. On October 11, 1989, the Ohio Supreme Court affirmed Cooey's conviction and death sentence. See State v. Cooey, 46 Ohio St.3d 20, 544 N.E.2d 895 (1989). The United States Supreme Court denied certiorari on April 1, 1991.

Cooey then sought state post-conviction relief. He filed a petition to vacate or set aside his sentence pursuant to Ohio Rev. Code § 2953.21, in the Court of Common Pleas of Summit County, Ohio, raising sixty-five claims for relief. On July 31, 1992, the Summit County Common Pleas Court denied Cooey's petition. See State v. Cooey, No. 86-09-1109A (Com. Pl. Summit Cty. July 21, 1992). Cooey appealed, raising eight assignments of error. State v. Cooey, 1994 WL 201009 (Ohio Ct.App. May 25, 1994). The Ohio Court of Appeals found that most of Cooey's claims were barred by res judicata. Id. It did, however, address Cooey's claims of ineffective assistance of counsel on the merits. Cooey appealed to the Ohio Supreme Court, but that court declined to take jurisdiction of Cooey's post-conviction appeal.

On November 3, 1994, Cooey filed an application to reopen his direct appeal. Cooey claimed that his appellate counsel was ineffective and asserted fifty-eight claims that appellate counsel failed to raise. On January 16, 1995, the Ohio Court of Appeals denied his request to reopen his direct appeal, finding that Cooey had procedurally defaulted these claims because he had failed to establish good cause for not filing the application to reopen within ninety days from the effective date of Ohio App. R. 26(B), July 1, 1993. The Ohio Supreme Court affirmed the judgment of the Ohio Court of Appeals. See State v. Cooey, 73 Ohio St.3d 411, 653 N.E.2d 252 (1995). Cooey's motion for reconsideration was also denied.

Cooey filed this petition for writ of habeas corpus in October 1996. Among other grounds for relief, Cooey claimed that he was denied the effective assistance of both trial and appellate counsel, and that he was denied a meaningful opportunity to litigate his federal claims in the state courts.

On September 4, 1997, the district court denied the writ. See Cooey v. Anderson, 988 F.Supp. 1066 (N.D.Ohio 1997). Under the procedure that pre-dated the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the district court then issued a certificate of probable cause for appeal. Petitioner then filed a notice of appeal.

On October 12, 2000, this Court entered an order ruling that the AEDPA applies to this case, and that the district court's issuance of a certificate of probable cause under the pre-AEDPA version of 28 U.S.C. § 2253(c) was ineffective. We elected to treat Cooey's brief as an application for a certificate of appealability. After expressing our tentative view that Cooey had not made a "substantial showing of the denial of a constitutional right" as required by 28 U.S.C. § 2253(c)(2) & (3) with respect to any of the issues raised, we directed Cooey to show cause why we should not deny the application for a certificate. Attached to our order was an appendix summarizing our tentative view as to each issue.

The parties filed their respective briefs responding to the show cause order, and the matter was argued on January 30, 2002.

II. Application for Certificate of Appealability

Under the AEDPA, an appeal from the denial of a writ of habeas corpus may not be taken unless a circuit justice or judge issues a certificate of appealability. A certificate of appealability may not issue unless "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). We may also reject an issue for appeal if the procedural default doctrine applies. See Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). However, this determination has two components, "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." Id. at 483, 120 S.Ct. 1595. When the district court denies a habeas petition on procedural grounds alone, the certificate of appealability should issue when the applicant "shows, at least, that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484, 120 S.Ct. 1595.

Cooey raises the following issues in his brief as broadly stated in seven categories, with numerous subissues, and asks us to grant a certificate of appealability as to the following:

I. THE STANDARDS CREATED BY THE UNITED STATES SUPREME COURT AND THE SIXTH CIRCUIT COURT OF APPEALS MANDATED AN EVIDENTIARY HEARING IN MR. COOEY'S CASE.

II. THE IMPROPER WEIGHING OF INVALID CIRCUMSTANCES, AND INADEQUATE CONSIDERATION OF MITIGATING FACTORS, REQUIRE THAT MR. COOEY'S DEATH SENTENCE BE VACATED.

III. THE IMPROPER CONSIDERATION OF INADMISSIBLE AND PREJUDICIAL MATERIAL BY THE TRIAL COURT REQUIRES THAT MR. COOEY'S DEATH SENTENCE BE VACATED.

IV. THE DISTRICT COURT ERRED WHEN IT FOUND THAT THE ERRORS WHICH OCCURRED AT THE TRIAL PHASE DID NOT DENY [MR. COOEY] HIS RIGHT TO A FAIR TRIAL.

V. THE DISTRICT COURT ERRED IN DETERMINING THAT PETITIONER COOEY HAD PROCEDURALLY DEFAULTED ON HIS CLAIMS.

VI. MR. COOEY WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO PREVENT THE IMPERMISSIBLE CUMULATION OF INVALID AGGRAVATING FACTORS AND OTHER PREJUDICIAL INFLUENCES ON THE TRIAL AND SENTENCING DECISIONS; AND FAILED TO REASONABLY INVESTIGATE MITIGATING FACTORS.

VII. OHIO'S DEATH PENALTY LAW IS UNCONSTITUTIONAL.

(Petitioner's Br. at 2; see also id. at ii-ix).

We have reviewed the parties' most recent round of briefs, and heard their arguments, and conclude that a certificate of appealability should issue as to only the two following issues:

I. Whether the Ohio Supreme Court failed on direct appeal to correct the trial court's errors in weighing the aggravating and mitigating factors; and

II. Whether Cooey's trial counsel provided ineffective assistance.

As for the remaining issues raised, we hold that none meets the standards for granting a certificate of appealability, for the reasons originally articulated in the appendix to our order dated October 12, 2000, which we reincorporate and attach as an unpublished appendix to this opinion.

III. Petition

This Court reviews a district court's decision...

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