Dixon v. Houk

• Decision Date: 29 January 2014
• Docket Number: No. 08–4019.,08–4019.
• Parties: Archie DIXON, Petitioner–Appellant, v. Marc C. HOUK, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

737 F.3d 1003

Archie DIXON, Petitioner–Appellant,

v.Marc C. HOUK, Warden, Respondent–Appellee.

No. 08–4019.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 17, 2013.

Decided and Filed: Dec. 12, 2013.

Rehearing and Rehearing En Banc Denied Jan. 29, 2014.^*

ARGUED:Michael J. Benza, Law Office of Michael J. Benza, Chagrin Falls, Ohio, for Appellant. Thomas E. Madden, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF:Michael J. Benza, Lawrence J. Whitney, Burdon & Merlitti, Akron, Ohio, for Appellant. Thomas E. Madden, David M. Lieberman, Alexandra T. Schimmer, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

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

SILER, J., delivered the opinion of the court, in which COLE, J., joined. MERRITT, J. (pp. 1013–17), delivered a separate dissenting opinion.

AMENDED OPINION

SILER, Circuit Judge.

Twenty years ago, Archie Dixon and his accomplice brutally attacked Christopher Hammer and buried him alive. Dixon was convicted of aggravated murder, robbery, kidnaping, and forgery, and the state trial court sentenced him to death. He sought to vacate his conviction and sentence, asserting that his confession was obtained in violation of his Miranda rights and alleging numerous errors in his trial. We ruled that his confession was coerced, deeming his remaining claims regarding effectiveness of trial counsel, the instructions to the jury, and the exclusion of certain mitigating evidence pretermitted. On review, the Supreme Court reversed our ruling, see Bobby v. Dixon, ––– U.S. ––––, 132 S.Ct. 26, 181 L.Ed.2d 328 (2011), and we must now review his remaining claims for ineffective assistance of counsel, improper jury instruction, and the exclusion of certain mitigating evidence at his penalty hearing. For the following reasons, we AFFIRM the district court's ruling and DENY Dixon's petition for a writ of habeas corpus.

I.

Dixon and his accomplice, Timothy Hoffner, were friends with Hammer. In 1993, Dixon and Hoffner beat Hammer, tied him to a bed, stole the contents of his wallet and his automobile, and then drove him into a remote area and buried him alive. One month into the ensuing investigation, Hoffner led police to Hammer's body and Dixon provided a tape-recorded account of the kidnaping, robbery, and murder.

Dixon was indicted for aggravated murder, kidnaping, and aggravated robbery. At trial, the defense presented no evidence and cross-examined only three of the prosecution's 15 witnesses. The jury convicted Dixon on all charges and recommended the death penalty, which the court imposed. Dixon appealed his conviction to the Ohio Court of Appeals and, while that appeal was pending, he filed a post-conviction petition with the trial court, arguing ineffective assistance of counsel. The latter was denied, and Dixon appealed that decision to the Ohio Court of Appeals. The Ohio Court of Appeals consolidated Dixon's direct appeal and post-conviction appeal and affirmed his conviction. He then appealed to the Ohio Supreme Court, which also affirmed, State v. Dixon, 101 Ohio St.3d 328, 805 N.E.2d 1042, 1063 (2004).

Dixon proceeded to file a federal habeas petition alleging ineffective assistance of counsel, improper jury instructions, improper exclusion of mitigating evidence at sentencing, and a violation of his Miranda rights. ¹ The district court denied the petition, and Dixon appeals.

II.

Under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a habeas corpus application which includes a claim that was previously adjudicated on the merits in state court proceedings will 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.” Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011). This standard is “difficult to meet,” “highly deferential,” and “demands that state-court decisions be given the benefit of the doubt.” Id. (quoting Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam)). Dixon carries the burden of meeting this high bar.

The parties initially dispute whether Dixon's claims were adjudicated on the merits and, accordingly, whether AEDPA's standard of review applies and whether our review is limited to the record before the state court. “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits' in state court, subject only to the exception in §§ 2254(d)(1) and (d)(2).” Although the Supreme Court has not defined “adjudication on the merits,” we are guided by its observation that “no text in the statute requir[es] a statement of reasons.” Harrington v. Richter, –––U.S. ––––, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). Rather, the “statute refers only to a ‘decision,’ which resulted from an ‘adjudication.’ ” Id. Thus, “[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 784–85.

Each of Dixon's claims on appeal was adjudicated on the merits in state court. First, he argued that defense counsel was ineffective by cross-examining only three of the state's 15 witnesses at trial. The Supreme Court of Ohio found that “[c]ounsel's tactical decisions reflected reasonable representation.” Dixon, 805 N.E.2d at 1054. Second, Dixon argued he was denied the effective assistance of counsel during his mitigation hearing because counsel failed to present available mitigating evidence. The Supreme Court of Ohio found that, based upon the evidence before the trial court, it was impossible to determine that sufficient mitigating evidence existed to “call[ ] for a sentence less than death.” Id. at 1056. Third, Dixon argued that the trial court erred in excluding certain evidence at mitigation. Specifically, Dixon had previously been wrongfully incarcerated on a rape charge that was subsequently dismissed. The Supreme Court of Ohio found that although the trial court should have permitted the evidence, excluding it was harmless error. Id. Fourth, Dixon argued that the trial court erred in its penalty-phase instructions regarding aggravating circumstances in Dixon's actions. The Supreme Court of Ohio adjudicated this argument in detail and found the instructional error did not constitute grounds for reversal. Id. at 1059. Finally, Dixon argued that the trial court erroneously instructed the jury to assume his guilt. Here, as well, the Supreme Court of Ohio found no plain error, concluding that “the jury was properly charged on the presumption of innocence, reasonable doubt, and the burden of proof.” Id. at 1053. Because all of Dixon's arguments on appeal were adjudicated on their merits by the Supreme Court of Ohio, our highly-deferential review under AEDPA is limited to the record before that court.

A.

In order to prevail on a claim of ineffective assistance of counsel, Dixon “must show both that his counsel's performance was deficient and that the deficient performance prejudiced the defense.” Hodges v. Colson, 711 F.3d 589, 613 (6th Cir.2013) (citing Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To show deficiency, Dixon must establish that “counsel made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. To show prejudice, Dixon must establish that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. We need not address both components if we find that Dixon has failed to meet one of them. Id. at 697, 104 S.Ct. 2052.

Dixon first argues that his due process right to a fair trial was prejudiced by defense counsel's failure to cross-examine several of the prosecution's witnesses. Moreover, Dixon argues that the cross-examination which was conducted was insufficient and ineffective. Defense counsel cross-examined three witnesses at trial: Jennifer Wodarsky, Hammer's former girlfriend; Barbara Hammer, Hammer's mother; and Detective Phil Kulakoski, who questioned Dixon at the Toledo Police Department two weeks after the murder. Counsel challenged the state's portrayal of Hammer as an innocent young man by asking Wodarksi and Barbara Hammer about Hammer's involvement with drugs and misuse of a credit card, and questioned Kulakoski about the discovery of Hammer's body near the Michigan state border, a state without the death penalty, in an attempt to suggest the arbitrariness of Ohio's death penalty. The Supreme Court of Ohio found that “[c]ounsel's tactical decisions reflected reasonable representation,” and noted that courts “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Dixon, 805 N.E.2d at 1054 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Furthermore, the court found that counsel's decision not to cross-examine other witnesses resulted from his realization “that any attempt to cross-examine [them] would have merely reemphasized their damaging testimony.” Id. at 1055.

On appeal, Dixon argues that his counsel's brief and his decision to otherwise not cross-examine or call additional witnesses amounted to “defense counsel put[ting] their hands up and surrender[ing].” And, although Dixon admits that cross-examination techniques, like other matters of trial strategy, are entrusted to the professional discretion of counsel, he questions how any strategy can be “based upon asking absolutely no questions.” He specifically...