Jackson v. Bradshaw, s. 07–4326

• Citation: 681 F.3d 753
• Decision Date: 25 July 2012
• Docket Number: Nos. 07–4326,10–4592.,s. 07–4326
• Parties: Kareem JACKSON, Petitioner–Appellant (07–4326), Petitioner–Appellee (10–4592), v. Margaret BRADSHAW, Warden, Respondent–Appellee (07–4326), Respondent–Appellant (10–4592).
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

681 F.3d 753

Kareem JACKSON, Petitioner–Appellant (07–4326), Petitioner–Appellee (10–4592),

v.Margaret BRADSHAW, Warden, Respondent–Appellee (07–4326), Respondent–Appellant (10–4592).

Nos. 07–4326, 10–4592.

United States Court of Appeals,Sixth Circuit.

Argued: Jan. 19, 2010.

Decided and Filed: June 1, 2012.

Rehearing and Rehearing En Banc Denied July 25, 2012.

ARGUED:Kathryn L. Sandford, Ohio Public Defender's Office, Columbus, Ohio, for Appellant. Morgan A. Linn, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF:Kathryn L. Sandford, Robert K. Lowe, Ohio Public Defender's Office, Columbus, Ohio, for Appellant. Morgan A. Linn, Stephen E. Maher, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: MERRITT, MARTIN, and CLAY, Circuit Judges.

OPINION

CLAY, Circuit Judge.

In case number 07–4326, Petitioner Kareem Jackson appeals the district court's dismissal of the petition for writ of habeas corpus he filed pursuant to 28 U.S.C. § 2254. Additionally, in case number 10–4592, Respondent appeals an order entered by the district judge in response to a limited remand ordered by this Court, in which the district court recommended we grant the writ on the basis of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Mitts v. Bagley, 620 F.3d 650 (6th Cir.2010), rev'd sub. nom Bobby v. Mitts, ––– U.S. ––––, 131 S.Ct. 1762, 179 L.Ed.2d 819 (2011). For the reasons set forth below, we AFFIRM the district court's original decision in case number 07–4326 denying the petition for writ of habeas corpus, REVERSE the district court's order in case number 10–4592, and DENY the petition.

BACKGROUND

The following facts and procedural history were recounted in the Ohio Supreme Court's opinion denying Petitioner's direct appeal in state court. See State v. Jackson, 92 Ohio St.3d 436, 751 N.E.2d 946 (2001).

On March 24, 1997, Petitioner, Derrick Boone, Michael Patterson, and a man called “Little Bee” decided to rob an apartment in Columbus, Ohio. Just past midnight on March 25, 1997, Malaika Williamson drove the four men to the target apartment. Inside the apartment were residents Antorio Hunter and Terrance Walker, along with their friends Nikki Long and Becky Lewis. Walker and Long were in the back bedroom when Petitioner and Little Bee knocked on the front door. Hunter answered the door and allowed both men to enter the apartment. Walker came out of the back bedroom, recognizing Petitioner, and said “I haven't seen you in a long time.” Petitioner and Little Bee then purchased some marijuana.

Boone and Patterson then burst into the apartment armed with shotguns. The men searched the apartment for money and drugs. Petitioner, who had a handgun, hit Lewis on the head with his handgun, placed a pillow behind her head, and threatened to kill her. Petitioner led Lewis into the kitchen. Long was also in the kitchen. Little Bee and Patterson left the apartment, leaving Petitioner and Boone inside.

According to Boone, Hunter and Walker were lying on the living room floor. Petitioner ordered one of them to crawl next to the other so that his head would be next to the other's head. While on the floor, one of the men stated that he “didn't have no money or weed” and that he would not call the police. Nonetheless, according to Boone, Petitioner said, “They know my name. I have to kill them.” Petitioner then grabbed a pillow, hesitated, and shot one of the men in the back of the head. The other, still lying on the floor, said “Please don't kill me. I ain't going to say nothing.” Petitioner placed a pillow behind the man's head and, after again hesitating, shot the man in the back of the head. Petitioner and Boone exited the apartment and joined Little Bee, Patterson, and Williamson in the car. Williamson drove the men back to her apartment, where they divided the robbery proceeds—about $40 in cash, $60 worth of marijuana, and a cellular phone.

In the interim, Lewis and Long, who heard the gunshots, waited until they felt it was safe to leave. They called Hunter's name, and when there was no response, they entered the living room. Upon seeing that Hunter and Walker had been shot and fearing the men might come back, Long and Lewis fled the apartment through a bedroom window. They called the police from another apartment.

At about 12:42 a.m., an officer responded to the dispatcher's call. Upon arriving at the apartment, the officer found the apartment door ajar and discovered the bodies of Walker and Hunter face down on the living room floor. A cushion with bullet holes was laying next to the victims.

Later that morning, Long met with an agent from the Bureau of Criminal Identification and Investigation and gave the agent enough information to create a composite sketch of Boone. Police distributed the composite sketch to the sheriff's department and the media. Boone subsequently turned himself in to the Franklin County Sheriff's Department. Boone cooperated with authorities and made a statement implicating Petitioner and the others involved in the shootings. Lewis subsequently identified Petitioner from a photo array lineup as the “guy with the little gun” who hit her over the head and threatened to kill her.

Police began collecting physical evidence related to the shootings. They retrieved a handgun from Williamson's apartment, which testing revealed was used to shoot Antorio Hunter. A firearms expert was unable to say conclusively that the same gun was used to shoot Terrance Walker, but the bullet did have some characteristics matching Petitioner's handgun and matched the caliber of his weapon. Police also searched the apartment Petitioner shared with his girlfriend, Ivana King, and found a shotgun in a closet and two rifles concealed under the molding in the kitchen sink cupboard. The police also recovered nine .38 caliber bullets from the apartment. During a police interview, Ivana King stated that Petitioner told her he had “done two people.”

Petitioner was arrested on March 28, 1997 and was subsequently indicted on six counts of aggravated murder for the deaths of Walker and Hunter. Each count of murder included two death penalty specifications for multiple murder and murder during an aggravated robbery in violation of Ohio Revised Code (“R.C.”) § 2929.04(A)(5) and (A)(7). Petitioner was also charged with four counts of aggravated robbery, four counts of kidnapping, and one count of felonious assault. Each count carried a firearm specification.

Petitioner's trial commenced in Franklin County, Ohio. The trial court granted Petitioner's motion for acquittal on the count charging him with the aggravated robbery of Lewis, because Lewis testified that Petitioner did not demand or take money from her. The jury returned a guilty verdict on the remaining charges. At the conclusion of the penalty phase of the trial, the jury recommended that the court impose a death sentence. The trial court accepted the jury's recommendation and sentenced Petitioner to death. On direct appeal, the Ohio Supreme Court affirmed the trial court's decision.

On April 19, 1999, Petitioner filed a post-conviction petition in the trial court, raising 26 grounds for relief. On June 18, 2001, Petitioner's post-conviction petition was denied. In denying relief, the Ohio Court of Common Pleas concluded that many of the claims were barred as res judicata and that all of the claims lacked merit. Petitioner subsequently submitted an application to reopen his direct appeal, which was denied on January 16, 2002. Petitioner appealed the denial of post-conviction relief and the Ohio Court of Appeals affirmed. Petitioner sought review from the Ohio Supreme Court, which was denied on October 30, 2002.

In 2003, Petitioner filed an amended 28 U.S.C. § 2254 petition in federal district court, raising 18 grounds for relief.¹ Respondent moved to dismiss several of Petitioner's claims as procedurally defaulted. The district court granted in part and denied in part Respondent's motion on September 27, 2004. After the parties litigated Petitioner's remaining claims, the district court concluded that those claims lacked merit and dismissed the petition on September 28, 2007. The district court certified several of Petitioner's claims for appeal, and we granted Petitioner's motion to expand his certificate of appealability. Shortly after we heard oral argument, we ordered supplemental briefing on whether the instruction given to the jury after the penalty phase of Petitioner's trial violated Beck v. Alabama.Later still, we remanded the case to the district court for findings of fact and conclusions of law on that issue. See28 U.S.C. § 2106. The district court concluded that the penalty-phase instruction was inconsistent with Beck and recommended that we grant Petitioner relief on that basis. Respondent appealed that recommendation.

DISCUSSION

I. Legal Framework

On appeal of a denial of a petition for a writ of habeas corpus, we review the district court's conclusions of law de novo and its factual findings for clear error. Lovell v. Duffey, 629 F.3d 587, 593–94 (6th Cir.2011). We accept the state court's determination of a factual issue unless the petitioner upsets the presumption by clear and convincing evidence. Moss v. Hofbauer, 286 F.3d 851, 858–59 (6th Cir.2002) (citing 28 U.S.C. § 2254(e)(1)).

Since Petitioner sought habeas relief in October 2003, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs his petition. Under AEDPA, an application for a writ of habeas corpus will not be granted with respect to claims adjudicated on the merits in state-court proceedings unless the adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence...