Fautenberry v. Mitchell

• Decision Date: 25 January 2008
• Docket Number: No. 05-3568.,05-3568.
• Parties: John FAUTENBERRY, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

515 F.3d 614

John FAUTENBERRY, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.

No. 05-3568.

United States Court of Appeals, Sixth Circuit.

Argued: July 26, 2007.

Decided and Filed: January 25, 2008.

ARGUED:

Dennis Lyle Sipe, Buell & Sipe Co., Marietta, Ohio, for Appellant. Steven W. Schierholt, Attorney General's Office of Ohio, Columbus, Ohio, for Appellee.

ON BRIEF:

Dennis Lyle Sipe, Buell & Sipe Co., Marietta, Ohio, for Appellant. Matthew C. Hellman, Attorney General's Office of Ohio, Columbus, Ohio, Lisa M. Stickan, Attorney General's Office of Ohio, Cleveland, Ohio, for Appellee.

Before: BATCHELDER, MOORE, and GILMAN, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court, in which GILMAN, J., joined. MOORE, J. (pp. 643-53), delivered a separate dissenting opinion.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

Petitioner John Fautenberry ("Fautenberry"), a prisoner in the state of Ohio awaiting execution, appeals the district court's denial of his petition for writ of habeas corpus. Fautenberry raises eight issues on appeal. Finding no merit in any of them, we AFFIRM the judgment of the district court.

I.

In November 1990, Fautenberry, who had recently quit his job as a cross-country truck driver, met Donald Nutley at a truck stop outside Portland, Oregon, and the two men went target shooting together. After they had finished and were leaving the range, Fautenberry shot Nutley in the head and stole $10,000 from him. Fautenberry then drove to Cincinnati, Ohio, where he stayed with his sister for a short time before traveling to Connecticut to visit an old friend. In February 1991, while en route back to Cincinnati, Fautenberry—out of money and in need of gasoline to continue his travels—stopped at a truck stop in New Jersey. There he met Gary Farmer, who, after learning of Fautenberry's need for money, offered to buy Fautenberry breakfast and give him money in exchange for sex. Fautenberry got into the cab of Farmer's truck, shot Farmer in the head, and took his wallet. Fautenberry then returned to his sister's residence in Cincinnati,

On February 17, 1991, after another brief stay in Cincinnati, Fautenberry again left his sister's residence, this time on foot, in search of money. Fautenberry walked down Highway 125, in the eastern suburbs of Cincinnati, stopped at the on-ramp to Interstate 275, and began hitchhiking. Joseph Daron offered to give Fautenberry a ride. Daron intended to travel only ten miles north to his home in Milford, Ohio, but, upon learning that Fautenberry wanted to go north to Columbus, Ohio, he drove Fautenberry an extra ten miles and dropped him near the intersection of Interstate 275 and Interstate 71, which goes directly to Columbus. As he exited Daron's vehicle, Fautenberry reached back into the car and shot Daron twice in the chest. Fautenberry then drove Daron's car south to Cincinnati, and threw Daron's body into a wooded area on the north bank of the Ohio River, where it was eventually found more than a month later by the local authorities. Fautenberry took Daron's car, wallet, briefcase, wristwatch, and Bible, and returned to Oregon.

Fautenberry arrived in Portland on February 24, 1991, and spent the next few days at the Oregon coast with some old friends and acquaintances, including a woman named Christine Guthrie. Guthrie accompanied Fautenberry back to Portland from the coast, and along the way, they stopped on an old logging road. Fautenberry escorted Guthrie to a secluded portion of the woods, shot her three times in the back of the head, and stole her bank card. A few days later, after withdrawing cash from her bank account, Fautenberry traveled to Juneau, Alaska, where he began working aboard a fishing boat. On March 13, 1991, Fautenberry met Jefferson Diffee at a local bar, and the two men went to Diffee's, apartment. While there, Fautenberry beat Diffee, handcuffed him, and stabbed him seventeen times, which resulted in his death. The local police discovered Fautenberry's fingerprints at the scene of the crime, and on March 16, 1991, they arrested him for the murder of Diffee. The police then searched Fautenberry's storage locker and hotel room, where they found Daron's briefcase, wristwatch, and Bible.

On March 17, 1991, while in police custody, Fautenberry called Federal Bureau of Investigation ("FBI") Agent Larry Ott and left a message indicating that he wanted to talk. Agent Ott went to the jail, informed Fautenberry of his Miranda rights (which Fautenberry subsequently waived), and recorded Fautenberry's confession to the murders of Nutley, Farmer, Daron, and Guthrie. Fautenberry accurately described the wounds inflicted upon each victim, and indicated that robbery was the motive for each killing. A few days later, Fautenberry called his old girlfriend, Olivia Priest-Herndon, and told her that he was "only after ... money" and that he "did it[,] so [he] gotta pay the price now." Fautenberry also confessed to Tom Nelson of the Portland Police Department, informing Nelson where the bodies of Nutley and Guthrie were located. In August 1991, Fautenberry pleaded guilty in an Alaskan state court to the murder of Jefferson Diffee, and the court sentenced him to 99 years' imprisonment.

In September 1991, the Alaskan authorities transferred Fautenberry to Hamilton County, Ohio, the county in which Cincinnati is located, where a grand jury had returned a five-count indictment charging Fautenberry with two counts of aggravated murder (both pertaining to the death of Daron), aggravated robbery, theft of a motor vehicle, and theft of a credit card. The aggravated murder charges included two specifications, either of which would render Fautenberry eligible for the death penalty under Ohio law: (1) killing Daron while committing aggravated robbery; and (2) killing Daron as part of a course of conduct involving the purposeful killing of two or more persons. See Ohio Rev.Code § 2929.04(A). Fautenberry waived his right to a trial by jury and later proffered a no-contest plea to all counts and specifications in the indictment.

The prosecution presented the three-judge panel¹ with evidence, including the murder weapon, various other pieces of physical evidence, and transcripts of Fautenberry's confessions to Agent Ott, Officer Nelson, and Ms. Priest-Herndon. After reviewing this evidence, the court concluded beyond a reasonable doubt that Fautenberry was guilty of all counts and specifications in the indictment, and accepted his plea. In September 1992, the three-judge panel held a sentencing hearing. The defense presented its mitigating evidence, which included testimony from Fautenberry, Dr. Nancy Schmidtgoessling, and friends who knew Fautenberry well. Those friends included Louise Corcoran (a long-time friend of Fautenberry's family), Ms. Priest-Herndon (Fautenberry's former girlfriend with whom he had lived), and Mary Theresa Slayback (a friend with whom Fautenberry lived during his early twenties). After hearing all of this evidence, as well as the testimony of the six law-enforcement officers presented during the mitigation hearing by the prosecution, the three-judge panel imposed the death penalty, finding that, despite the defense's "thorough job in presenting the[ ] mitigating factors," it was beyond a reasonable doubt that the aggravating factors sufficiently outweighed the mitigating factors.

Fautenberry appealed to the state appellate court, which affirmed his conviction and sentence in 1994. See State v. Fautenberry, No. C-920734, 1994 WL 35023 (Ohio Ct.App. February 9, 1994). The Ohio Supreme Court also affirmed on direct appeal, see State v. Fautenberry, 72 Ohio St.3d 435, 650 N.E.2d 878 (1995), and the United States Supreme Court denied Fautenberry's request for review, see Fautenberry v. Ohio, 516 U.S. 996, 116 S.Ct 534, 133 L.Ed.2d 439 (1995). In March 1996, Fautenberry filed a motion for reconsideration with the Ohio Supreme Court, arguing that he had received ineffective assistance of appellate counsel during his direct appeal to that court. That motion was summarily denied in May 1996. See State v. Fautenberry, 78 Ohio St.3d 320, 677 N.E.2d 1194 (1997). In July 1996, Fautenberry filed, pursuant to Ohio App. R. 26(B), an application for reopening (i.e., a motion for delayed reconsideration) with the state court of appeals, alleging ineffective assistance of appellate counsel during his direct appeal to that court. This application was denied because Fautenberry "failed to demonstrate that there [was] good cause for filing [ ]his application more than two years after th[e] court's judgment was journalized." The Ohio Supreme Court affirmed that decision. See State v. Fautenberry, 78 Ohio St.3d 320, 677 N.E.2d 1194 (1997). Also in July 1996, Fautenberry filed his petition for post-conviction relief. The trial court denied the petition, and the court of appeals affirmed that denial. See State v. Fautenberry, No. C-971017, 1998 WL 906395 (Ohio Ct.App. December 31, 1998). The Ohio Supreme Court then declined to review Fautenberry's petition, see State v. Fautenberry, 85 Ohio St.3d 1477, 709 N.E.2d 849 (1999), and refused Fautenberry's request for reconsideration, see State v. Fautenberry, 86 Ohio St.3d 1422, 711 N.E.2d 1015 (1999).

In May 2000, Fautenberry filed his petition for a writ of habeas corpus with the federal district court, asserting nineteen grounds for relief. The State moved to dismiss, contending that many of Fautenberry's claims had been procedurally defaulted. The district court partially granted the State's motion and dismissed some of Fautenberry's claims. In a later opinion and order, the district court addressed the substance of Fautenberry's non-defaulted claims, found them to be without merit, and denied Fautenberry's petition for habeas relief. The district court issued a certificate of appealability on nine of Fautenberry's claims (two of which relate to his claim for ineffective...