Dennis v. Mitchell

• Decision Date: 29 December 2003
• Docket Number: No. 99-4460.,99-4460.
• Citation: 354 F.3d 511
• Parties: Adremy DENNIS, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

354 F.3d 511

Adremy DENNIS, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.

No. 99-4460.

United States Court of Appeals, Sixth Circuit.

Argued December 2, 2003.

Decided and Filed December 29, 2003.

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Linda E. Prucha (briefed), Public Defender's Office, Ohio Public Defender's Com'n, Columbus, OH, John F. McCaffrey (argued and briefed), McLaughlin & McCaffrey, Cleveland, OH, for Appellant.

Jonathan R. Fulkerson, Henry G. Appel (argued and briefed), Attorney General's Office of Ohio, Columbus, OH, for Appellee.

Before SUHRHEINRICH, SILER, and DAUGHTREY, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

Petitioner Adremy Dennis was convicted by an Ohio jury of the aggravated murder of Kurt Kyle and sentenced to death. After exhausting his direct appeals and state post conviction remedies, Dennis sought a writ of habeas corpus in federal court pursuant to 28 U.S.C. § 2254. The district court dismissed the petition. For the following reasons, we affirm the district court's dismissal of Dennis's habeas petition.

I. Background

A. Facts

The Ohio Supreme Court made the following factual findings on direct review:

During the early morning hours of June 5, 1994, defendant-appellant, Adremy L. Dennis, and Leroy "Lavar" Anderson stopped Dean R. Pizer in the Highland Square area of Akron and demanded money. Pizer escaped, even though a shotgun blast was fired at him as he fled. Shortly thereafter, Dennis shot and killed Kurt O. Kyle during a robbery in front of Kyle's home at 818 Bloomfield Road. Dennis later admitted he shot Kyle during a robbery, and he was subsequently convicted of aggravated murder, attempted aggravated murder and aggravated robbery, and sentenced to death.

Late on Saturday, June 4, and in the early morning hours of Sunday, June 5, Dennis and Anderson decided to go to a bar and "meet some chicks." Anderson spoke of "robbing somebody," and the pair armed themselves with weapons: Dennis with a sawed-off shotgun and Anderson with a .25 caliber handgun. As the pair proceeded to the bar, the shotgun, according to Dennis, accidently went off. Dennis then reloaded the weapon. Before arriving at the bar, the two smoked marijuana.

After some drinks, Anderson and Dennis left the bar and encountered Dean Pizer in an alley near West Market Street and South Highland Avenue. The "taller one" of the two, whom Pizer identified as Dennis, was wearing a long black leather coat and told Pizer, "Give me your money. * * * Don't try and run, don't try and run. You are going to die tonight, you are going to die." Pizer testified that he went backwards, slid and rolled down a hill, then ran away unharmed. He heard a gunshot "just left of me. There was a trash can or something got hit."

That same night, Kurt Kyle had raced at Barberton Speedway and afterwards hosted several friends and family members at his home for a cookout and socializing. Later, as one of his guests, Martin Eberhart, was leaving, Kyle walked with him to his car where the two continued conversing for a short time. While Eberhart was seated in his car talking with Kyle, they heard a loud noise, which Kyle told Eberhart was a gunshot. About three minutes later, two black males approached them in the driveway, out of the view of Kyle's other guests. The man Eberhart identified as Anderson was wearing a green and orange Miami Hurricanes Starter jacket, and demanded money while pointing a gun a Eberhart's neck. Eberhart slowly reached under the car seat for his wallet and handed Anderson $15.

At that time, Dennis, whom Eberhart described as wearing a long, three-quarter-length dark coat, asked Kyle for money. However, Kyle searched through his pockets and told Dennis that he had no money with him. Dennis then pulled out a sawed-off shotgun and shot Kyle in the head at point-blank range. Kyle died instantly of hypovolemic shock (loss of blood) due to a gunshot wound that severed both carotid arteries. According to Eberhart, the two assailants ran away together "sprinting very fast."

Anita Foraker, who lived in the neighborhood, was out walking her dog at around 1:30 a.m. that morning and heard a "loud pop type of sound." About a minute later, she observed two young black males headed in the opposite direction running by her on the other side of Bloomfield Road. She heard one say to the other, "Did you get it?"

A few days after the murder, Akron police received an anonymous phone call stating that someone at 371 Grand Avenue knew about the homicide that past weekend. Detective Donald L. Gaines and another detective went to the address, where they met Shirley Morgan and told her that a possible suspect was staying at her house. Morgan invited the detectives in and gave them permission to look around the house and to speak to her son, seventeen-year-old Lavar Anderson. When the detectives went down to the basement, they noticed a Miami Hurricanes jacket and a long, dark overcoat hanging up in the far corner on a bedrail. At that time, they took Anderson into custody, and he provided detectives information about the location of the murder weapon.

After procuring a search warrant, police seized several items from Morgan's basement, including the two coats, a .25 caliber pearl handle handgun, a 20 gauge sawed-off shotgun, and seven shotgun shells.

Upon completing the search of Morgan's home, Gaines received a call from two officers at 120 Burton Avenue, which was in the same general neighborhood. The police surrounded the house on Burton and thereafter apprehended Adremy Dennis.

At the police station, Dennis was advised of his Miranda rights, which he waived. Dennis told several versions as to his whereabouts on June 4-5, 1994 to Detectives Gaines, Lacy, and Offret. After Dennis's second statement, Gaines produced a sawed-off shotgun, which Dennis immediately claimed was his own. In his fourth statement to detectives, Dennis admitted that he and Anderson had planned some robberies that night and admitted holding up Pizer, Eberhart and Kyle. However, while Dennis admitted aiming the sawed-off shotgun at Kyle, he also claimed the gun went off accidentally. Dennis agreed to allow detectives to tape his statement.

In his taped statement, Dennis said that he and Anderson had smoked marijuana and then drank at a bar before the robberies and murder. While Dennis admitted he fired the sawed-off shotgun three times that night, he asserted that each shot was accidental and that he "could barely focus" when they came upon Kyle and Eberhart. After shooting Kyle, Dennis claimed he almost fell down and that Anderson had to help him flee the scene.

Yellow shotgun shell casings were found a few days after the murder. One was found in the area where Pizer was accosted, the other was discovered in front of Kyle's home. Nancy E. Bulger, a forensic scientist with the Bureau of Criminal Identification and Investigation ("BCI"), determined that the two casings were fired from the sawed-off shotgun that Dennis identified as his own.

State v. Dennis, 79 Ohio St.3d 421, 683 N.E.2d 1096, 1099-1101 (1997).

B. Procedural History

Dennis was charged with one count of aggravated murder, one count of attempted murder, three counts of aggravated robbery, and one count of possession of dangerous ordnance. All of the counts carried a firearms specification, and the dangerous ordnance charge also carried a physical-harm specification. The aggravated murder count also carried two death specifications: murder during an aggravated robbery, where Dennis was the principal offender (Ohio Rev.Code § 2929.04(A)(7)); and murder committed as a course of conduct involving the killing or attempt to kill two or more persons (Ohio Rev.Code § 2929.04(A)(5)). Id. at 1101.

Dennis's trial began on December 12, 1994. The jury convicted him of all charges. After a mitigation hearing, the jury recommended the death penalty. On December 29, 1994, the court agreed and sentenced Dennis to death. Id.

Dennis appealed. On May 8, 1996, the Ohio Court of Appeals rejected his claims. See State v. Dennis, No. 17156, 1996 WL 233501 (Ohio Ct.App. May 8, 1996). Dennis appealed to the Ohio Supreme Court. On September 24, 1997, that court affirmed Dennis's conviction and sentence. See State v. Dennis, 79 Ohio St.3d 421, 683 N.E.2d 1096 (1997). The United States Supreme Court denied certiorari. See Dennis v. Ohio, 522 U.S. 1128, 118 S.Ct. 1078, 140 L.Ed.2d 136 (1998).

Dennis also exhausted his post-conviction remedies, to no avail. See State v. Dennis, No. 18410, 1997 WL 760680 (Ohio Ct.App.1997) (affirming denial of post-conviction relief); State v. Dennis, No. 98-13, 690 N.E.2d 1287 (Ohio March 11, 1998).

On June 30, 1998, Dennis field a petition for writ of habeas corpus. On October 1, 1999, the district court denied his petition and denied Dennis's request for a certificate of appealability. This Court granted Dennis a certificate of appealability as to six issues.

II. Standard of Review

We review a district court's legal conclusions in habeas actions de novo and its factual findings for clear error. Miller v. Francis, 269 F.3d 609, 613 (6th Cir. 2001). If, however, the district court bases its decision on the state trial court transcript, and makes no findings of fact, we review the district court's fact findings de novo as well. Id.

III. AEDPA

Dennis's petition was filed on June 30, 1998, after the effective date of the Antiterrorism and Effective Death Penalty Act. Pub.L. 104-132, 110 Stat. 1214 ("AEDPA"). Its provisions therefore apply. Id.

"Congress enacted AEDPA to reduce delays in the execution of state and federal criminal sentences, ... and to further the principles of comity, finality, and federalism." Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 1401, 155 L.Ed.2d 363 (2003) (internal citations and quotation marks omitted). One of the mechanisms for accomplishing these goals was an amended version of 28 U.S.C. §...