Klein v. Leis

• Decision Date: 25 November 2008
• Docket Number: No. 06-3950.,No. 06-3949.,No. 06-4039.,06-3949.,06-3950.,06-4039.
• Citation: Klein v. Leis, 548 F.3d 425 (6th Cir. 2008)
• Parties: Thomas KLEIN, Petitioner-Appellant, v. Simon LEIS, Jr., Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

548 F.3d 425

Thomas KLEIN, Petitioner-Appellant, v.Simon LEIS, Jr., Respondent-Appellee.

No. 06-3949.

No. 06-3950.

No. 06-4039.

United States Court of Appeals, Sixth Circuit.

Argued: September 18, 2008.

Decided and Filed: November 25, 2008.

ARGUED:

Mark G. Arnzen, Jr., Dinsmore & Shohl, Cincinnati, Ohio, for Appellant.Philip R. Cummings, Hamilton County Prosecutor's Office, Cincinnati, Ohio, for Appellee.

ON BRIEF:

Mark G. Arnzen, Jr., Michael J. Newman, Dinsmore & Shohl, Cincinnati, Ohio, for Appellant.Philip R. Cummings, Hamilton County Prosecutor's Office, Cincinnati, Ohio, for Appellee.Thomas Klein, Lucasville, Ohio, pro se.

Before: DAUGHTREY and GILMAN, Circuit Judges; MILLS, District Judge.^*

OPINION

MILLS, District Judge.

Thomas Klein seeks habeas relief based on an alleged Double Jeopardy violation.

Posit: Did the state trial judge fail to exercise "sound discretion" by granting a mistrial without allowing the defendant to argue against the motion?

No.

In the circumstances of this case, we hold that the trial judge exercised the requisite "sound discretion" and affirm the district court's denial of habeas relief.

I.BACKGROUND

A. Klein's State Court Trial

In April 2005, an Ohio grand jury indicted Klein for a variety of offenses, including aggravated burglary, kidnaping, receiving stolen property, and having a weapon while under a disability.After making several attempts to pick the locks of his shackles and cell doors, Klein was declared a maximum security risk and required to wear an electronic stun belt concealed under his shirt.

In February 2006, Klein went to trial.Proceeding pro se, Klein launched into an invective opening statement that repeatedly misstated the law and maligned both the prosecution and, to a lesser extent, the trial judge.

Klein began by telling the jurors that they were "not constrained by what you think someone else wants you to do, tells you you must do.You do as you see fit.You have ultimate power.You control this machine.You can make your decision based on the instinct, common sense, because you don't like someone's shoes."The prosecution objected, and the trial judge agreed that such statements were improper because they told the jury how to reason.Klein persisted and, following more objections, the trial court re-instructed Klein on opening statements, explaining that the "[o]pening statement is the opportunity you have to tell the jury what evidence you're going to put on."

Nevertheless, Klein continued on his original trajectory, telling the jurors about their "presumption of guilt" and describing his prosecution as "a pinata party ... with me being the pinata."Klein further complained that "[m]y lawyer, if I had one, or me, does not get to be at the indictment hearing."The trial judge interjected: "It sounds like ... somebody denied you the right to an attorney.Not true."

Klein continued: "Now, the prosecutor's dream is to turn you into a rubber stamp ... and have you do his bidding....He is not in the business of searching for truth.His mission is to convict.Pure and simple."The prosecution objected, and the judge sustained.

Klein then began repeatedly referencing the death penalty, although his case was non-capital.First, he stated that he was representing himself "rather than letting one of their lackeys lead me to the gas chamber."Next, he opined that the prosecution was "wildly looking around for victims to drag to the guillotine."Following objections, the Court warned Klein to "keep [his] opening statement in ... proper perspective" or he would "have to sit down."Undeterred, Klein told the jury that if they had a reasonable doubt, "then that's insufficient to take my life or take my liberty."The Court repeated that the case was not a capital one and warned Klein: "I will declare a mistrial and we'll start all over.I have warned you just like I would an attorney.You have gone right past me six or seven times.Do it again, it's a mistrial, and we'll start all over."

Following this admonition, Klein misdefined "reasonable doubt" and described the witnesses for the trial as either "innocent" or "bad guys," earning more objections.Klein responded by accusing the prosecutor of having "destroyed a crucial piece of evidence," even though such evidence was destroyed in the ordinary course of business after Klein failed to take steps to discover and preserve it.The prosecution objected and threatened to ask for a mistrial.The court, which had previously barred any mention of a recorded conversation, chided Klein for bringing up the subject.

Klein also lashed out at the judge.First, he complained that "the Judge sounded kind of bored when he described his fundamental principles of law...," earning him a rebuke from the trial judge and instructions not to criticize the court or other counsel.Nevertheless, Klein complained to the jury that "the Judge spoke down on me a couple times, today ... like I was a child or some insignificant fly who's getting on his nerves."The court repeated that such criticisms were "highly inappropriate" and would have earned an attorney a fine.Klein persisted, however, suggesting that he would have requested a jury view of the crime scene, but "didn't even waste my breath."The trial judge quickly pointed out that Klein had not asked for a jury view and that any insinuation that he had prevented the jury view was improper.

Finally, Klein reached his summation:

The point I was trying to make is that they — I'm already being treated like I'm Hannibal Lector here, or you may see me fidget in my seat a little.I don't think it's because I like to fidget.I can't sit all the way back in my chair because I got this electrical shocker strapped to me.

At that point, Klein lifted his shirt to reveal the stun belt, and the prosecution moved for a mistrial:

Mr. Butler: Objection, Your Honor.

The Court: Okay.

Mr. Klein: I can't show the jury?

Mr. Butler: All right.At this point in time, the State is going to request a mistrial.He's obviously gone way past —

The Court: You want to argue?

Mr. Klein: Yes, I would like to argue.They can't know what I did?Is this some kind of secret?

The Court: Granted.Mistrial is granted.

Mr. Klein: Okay.

The Court: Try it again.

Mr. Klein: They don't want you to see the facts as reality.I didn't know it was some kind of illegal thing to show them the shocker.

B. Post-Trial Proceedings

Shortly after the mistrial, Klein moved to dismiss the indictment on Double Jeopardy grounds.On March 6, 2006, the trial judge entered a written opinion explaining his mistrial ruling.The order recounted many of Klein's improper statements and estimated that only 3-5 minutes of Klein's 25-30 minute opening statement were proper.Further, the court found that Klein was trying to mislead the jury by casting himself as the victim of a wide-ranging government conspiracy to falsely convict him.Revealing the stun belt was the "grand finale."

Under these circumstances, the trial judge concluded that a mistrial was necessary because the use of a curative instruction would have been plain error:

The situation ... was only resolvable by declaring a mistrial.If the Court overruled the motion for a mistrialthe defendant would gain an unfair advantage by contaminating the jury through his opening statement — moving them to be sympathetic to him because of the way he was being treated.On the other hand if the Court had tried to use a curative instruction to preserve the trial, it would have tainted the jury against the defendant.If the Court explained why Klein was wearing the shock belt to the jury, it would have required the Court to inform the jury that Klein had been found to be a maximum security risk for escape.

Following this opinion and the rejection of subsequent motions, a new trial date was set for June 5, 2006.

C.Habeas Proceedings

On March 23, 2006, Klein filed a habeas petition under § 2254¹ in the district court.²The magistrate judge recommended denying the petition after finding that the trial judge acted with "sound discretion."The district judge agreed and rejected Klein's assertions that the trial transcripts had been forged.³

On appeal, this Court initially declined to issue a certificate of appealability but, upon reconsideration, granted a certificate to determine whether the trial judge exercised "sound discretion."

II.APPLICABLE STANDARDS

A district court's decision to grant or deny habeas relief is reviewed de novo.Johnson v. Bell,525 F.3d 466, 473(6th Cir.2008).The underlying state court judgment is deferentially reviewed under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").⁴Id.Where a state court has adjudicated a petitioner's claim on the merits, AEDPA forbids federal courts from granting habeas relief unless the state court ruling was, inter alia,"contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States...."28 U.S.C. § 2254(d)(1).The "contrary to" clause is implicated where the court finds "`a violation of law clearly established by holdings of the Supreme Court, as opposed to its dicta, as of the time of the relevant state court decision.'"Cristini v. McKee,526 F.3d 888, 897(6th Cir.2008)(quotingMiller v. Francis,269 F.3d 609, 614(6th Cir.2001)).Relief is proper under the "unreasonable application" clause where "`the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'"Id.(quotingMiller,269 F.3d at 614).Under that clause, a petitioner must show not only an error of federal law, but also the unreasonableness of that error.Id.(citingSimpson v. Jones,238 F.3d 399, 405(6th Cir.2000)).

III.ANALYSIS: DOUBLE JEOPARDY CLAIM

The Fifth Amendment's Double Jeopardy Clause provides that no...