Fulcher v. Motley, No. 03-6216.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtCook
Citation444 F.3d 791
PartiesElem Ray FULCHER, Petitioner-Appellant, v. John MOTLEY, Warden, Respondent-Appellee.
Docket NumberNo. 03-6216.
Decision Date18 April 2006
444 F.3d 791
Elem Ray FULCHER, Petitioner-Appellant,
v.
John MOTLEY, Warden, Respondent-Appellee.
No. 03-6216.
United States Court of Appeals, Sixth Circuit.
Argued: December 2, 2005.
Decided and Filed: April 18, 2006.

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ARGUED: Chad A. Readler, Jones Day, Columbus, Ohio, for Appellant. Ian G. Sonego, Office of the Attorney General, Frankfort, Kentucky, for Appellee. ON BRIEF: Chad A. Readler, Marc A. Fulkert, Jones Day, Columbus, Ohio, for Appellant. Ian G. Sonego, Office of the Attorney General, Frankfort, Kentucky, for Appellee. Gerald L. Gulley, Jr., Gulley Oldham, PLLC, Knoxville, Tennessee, for Amicus Curiae.

Before: CLAY and COOK, Circuit Judges; OLIVER, District Judge.*

COOK, J., delivered the opinion of the court, in which OLIVER, D. J., joined.

CLAY, J. (pp. 811-830), delivered a separate concurring opinion.

OPINION

COOK, Circuit Judge.


Elem Ray Fulcher, currently serving a life sentence for murder, burglary, and robbery, appeals the denial of his petition for a writ of habeas corpus. The evidence against Fulcher included statements from a police station interview with his then girlfriend, Patricia Sue Ash, taped soon after the crime. The couple later married; Ash invoked marital privilege under Kentucky law1 and was thus unavailable for cross-examination at Fulcher's trial. Fulcher contends that the admission of Ash's statements violated his rights under the Sixth Amendment's Confrontation Clause, according to both the clearly established law at the time and the later case of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which he argues should apply retroactively. We find that the admission of Ash's statements did violate Fulcher's clearly established rights and that the error was not harmless. We thus REVERSE and REMAND to the district court for entry of the writ.

I. Factual and Procedural Background
A. Factual History

On December 22, 1991, Charlie Bramer was found beaten and stabbed to death in his home in Jefferson County, Kentucky. In April 1994, Fulcher was convicted of burglary, robbery, and Bramer's murder. The prosecution's case substantially consisted of the testimony of Terry Wright, Fulcher's friend and alleged accomplice, the police interview with Ash, the testimony of two inmates to whom Fulcher admitted committing the murder, and the testimony of a third inmate, to whom Fulcher offered $500 to provide an alibi. No murder weapon was found, and Fulcher's fingerprints were not discovered at the crime scene.

Wright's testimony supplied the bulk of the facts. He and Fulcher were drinking and watching football at Fulcher's house on the day of the crime. The two then went for a drive and decided to go to the home of Charlie Bramer to steal some money. They entered the home while Bramer lay asleep on the couch; Wright watched Bramer, and Fulcher searched the bedroom. Wright then heard a car come down the driveway. He went to the front door to look out and accidently hit the security chain on the door, waking

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Bramer. Wright ran out, taking the front door key with him, and got into Fulcher's car. Fulcher joined him. Bramer came out, walked over to the car, reached inside, and smacked Fulcher on the head.

Fulcher asked Bramer if he could talk to him for a minute, and the two walked back into the house. Wright initially stayed in the car but then went inside to find Fulcher hitting Bramer in the head with a hammer. Wright testified that there was nothing he could do to stop Fulcher. Wright again ran out, wiped his fingerprints off of the front door, and returned to the car. Three or four minutes later, Fulcher returned covered in blood. He told Wright, "This makes us tighter than anybody," and then drove Wright home. Fulcher told Wright that he killed Bramer because Bramer would otherwise have been able to identify them.

On January 2, 1992, Patricia Sue Ash was pulled over in a car matching the description of Fulcher's vehicle. The police took her to the station for questioning, at which point she provided the taped interview that lies at the heart of this appeal. Ash stated in the interview that sometime before Christmas Fulcher asked her to wash a pair of grey sweatpants that had blood on them — the result, Fulcher said, of a fight in which he and Wright had been involved. She stated that later Wright asked her to dispose of a key that she did not think belonged to her, Wright, or Fulcher. Ash could not recall whether Fulcher was present for the discussion, but Wright later testified that he was. Ash admitted that she threw the key into a sewer, where it was recovered by the police.

William Mucker and Nick Mantilli, state inmates, testified that Fulcher admitted to each of them that he killed Bramer. In addition, Mucker, who had known Fulcher before the murder and who was an inmate with Fulcher, testified that Fulcher told him to see him after Mucker's release. Fulcher would then tell Mucker where the murder weapons were located, and Mucker would dispose of them. Another inmate, Norman Lewis, testified that Fulcher offered him $500 to provide an alibi.

B. Litigation History

Basic Procedural History. Fulcher was convicted of murder, first degree robbery, and first degree burglary. He directly appealed his conviction to the Kentucky Supreme Court, arguing that (1) the trial court denied him a fair trial by not granting a mistrial after Wright volunteered from the stand that he had taken a polygraph test; (2) the trial court denied him due process by failing to instruct the jury on lesser offenses, including manslaughter, second degree burglary, and theft by unlawful taking; and (3) the trial court denied him a fair trial and violated his Sixth Amendment right to confront witnesses by admitting Ash's tape-recorded statements.

The Kentucky Supreme Court rejected all of Fulcher's arguments on the merits. The court affirmed the conviction on June 20, 1996, and it denied his petition for rehearing on August 26. On August 15, 1997, Fulcher moved in the state trial court to vacate his sentence pursuant to Kentucky Rule of Criminal Procedure 11.42, alleging various instances of ineffective assistance of counsel. The trial court denied the motion, and on May 25, 2001, the Kentucky Court of Appeals affirmed the denial. Fulcher then petitioned the Court of Appeals for a rehearing. The Court of Appeals denied his petition on August 10, 2001. A year later, on August 14, 2002, the Kentucky Supreme Court denied his motion for discretionary review of the Court of Appeals's decision. On November 7, 2002, he filed this petition for a writ of habeas corpus in the United

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States District Court for the Western District of Kentucky.

Fulcher raised the same three arguments in his habeas petition as he had on direct review: lack of a fair trial stemming from Wright's "lie detector" statement; lack of a fair trial and due process violations from failure to instruct the jury on the lesser offenses; and, most relevant to this appeal, lack of a fair trial and violation of his Sixth Amendment confrontation right by the admission of Ash's statements. A federal magistrate judge recommended denying Fulcher's petition. He found that although Fulcher had preserved his Sixth Amendment challenge, habeas relief was inappropriate because the Kentucky Supreme Court's decision was neither "clearly contrary to" nor "an unreasonable application of" the United States Supreme Court precedent in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The district court accepted the magistrate's recommendations, dismissed Fulcher's petition, and denied his request for a certificate of appealability.

On September 3, 2003, Fulcher filed his notice of appeal, followed by a request for a certificate of appealability from this court. On August 19, 2004, this court granted Fulcher the certificate "regarding the issue of whether his rights under the Confrontation Clause were violated when a tape-recorded statement was admitted into evidence."

Preservation of his Sixth Amendment Argument. Because Kentucky contends that Fulcher has waived the Confrontation Clause challenge he raises in this appeal, we consider his filings with respect to the issue.

Prior to trial, Fulcher filed a motion in limine to exclude Ash's statements, arguing, among other things, that their admission would violate his Confrontation Clause right as defined by Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (holding that the Sixth Amendment requires that hearsay statements have "indicia of reliability" — i.e., either fall into a "firmly rooted hearsay exception" or have "particularized guarantees of trustworthiness"), Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (holding that inculpatory hearsay statements by accomplices are "presumptively unreliable"), and Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (holding that to have "particularized guarantees of trustworthiness," hearsay evidence "must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial"). Fulcher also cited the Kentucky case of Taylor v. Commonwealth, 821 S.W.2d 72 (Ky.1990), which allowed an unavailable party's confession to be admitted against his alleged accomplice, for the proposition that a non-testifying codefendants's confession is presumptively unreliable. As discussed below, the more relevant holding in Taylor was that statements against penal interest may only be admitted based upon a four-factor test of trust-worthiness.2 Fulcher did not cite that test in his motion.

Next, as recounted in his brief on direct appeal before the Kentucky Supreme Court (J.A. 54), Fulcher objected to the admission of Ash's statements before and throughout the trial. The brief offers few

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152 practice notes
  • Black v. Bell, Nos. 02–5032
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 4, 2012
    ...an Atkins hearing”). We will therefore consider Coleman in our review of Black's Atkins claim under AEDPA. See Fulcher v. Motley, 444 F.3d 791, 822 (6th Cir.2006) (Clay, J., concurring) (explaining that even where a Supreme Court precedent applies retroactively, a federal court conducting h......
  • Garcia v. Eppinger, CASE NO. 1:17CV1090
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • May 11, 2020
    ...claim to be "fairly presented," the petitioner must assert both a factual and legal basis for his claim in state court. Fulcher v. Motley, 444 F3d 791, 798 (6th Cir. 2006). A petitioner "fairly" presents the substance of his federal constitutional claim to the state courts by: (1) relying u......
  • Snyder v. Buchanan, Case No. 5:12CV255
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • July 30, 2012
    ...it in passing. Rather, a petitioner must present both the factual and legal basis for his claims to the state court. Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir.2006) (quoting Newton v. Million, 349 F.3d 873, 877 (6th Cir.2003)). Even if there were "variations in the legal theory or factu......
  • Wilson v. Warden, Case No. 3:13-cv-217
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • August 27, 2015
    ...v. Mohr, 265 F.3d 407, 415 (6th Cir. 2001); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 674, 681 (6th Cir. 2000); Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006); Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004). A state prisoner ordinarily does not 'fairly present' a federal ......
  • Request a trial to view additional results
152 cases
  • Black v. Bell, Nos. 02–5032
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 4, 2012
    ...an Atkins hearing”). We will therefore consider Coleman in our review of Black's Atkins claim under AEDPA. See Fulcher v. Motley, 444 F.3d 791, 822 (6th Cir.2006) (Clay, J., concurring) (explaining that even where a Supreme Court precedent applies retroactively, a federal court conducting h......
  • Garcia v. Eppinger, CASE NO. 1:17CV1090
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • May 11, 2020
    ...claim to be "fairly presented," the petitioner must assert both a factual and legal basis for his claim in state court. Fulcher v. Motley, 444 F3d 791, 798 (6th Cir. 2006). A petitioner "fairly" presents the substance of his federal constitutional claim to the state courts by: (1) relying u......
  • Snyder v. Buchanan, Case No. 5:12CV255
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • July 30, 2012
    ...it in passing. Rather, a petitioner must present both the factual and legal basis for his claims to the state court. Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir.2006) (quoting Newton v. Million, 349 F.3d 873, 877 (6th Cir.2003)). Even if there were "variations in the legal theory or factu......
  • Wilson v. Warden, Case No. 3:13-cv-217
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • August 27, 2015
    ...v. Mohr, 265 F.3d 407, 415 (6th Cir. 2001); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 674, 681 (6th Cir. 2000); Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006); Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004). A state prisoner ordinarily does not 'fairly present' a federal ......
  • Request a trial to view additional results

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