Lang v. Bobby, 15-3440

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtSILER, Circuit Judge.
Citation889 F.3d 803
Parties Edward LANG, Petitioner–Appellant, v. David BOBBY, Warden, Respondent–Appellee.
Docket NumberNo. 15-3440,15-3440
Decision Date11 May 2018

889 F.3d 803

Edward LANG, Petitioner–Appellant,
David BOBBY, Warden, Respondent–Appellee.

No. 15-3440

United States Court of Appeals, Sixth Circuit.

Argued: March 6, 2018
Decided and Filed: May 11, 2018
Rehearing En Banc Denied June 28, 2018*

ARGUED: Michael J. Benza, THE LAW OFFICE OF MICHAEL J. BENZA, INC., Chagrin Falls, Ohio, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Michael J. Benza, THE LAW OFFICE OF MICHAEL J. BENZA, INC., Chagrin Falls, Ohio, Laurence E. Komp, Manchester, Missouri, Karl Schwartz, LAW OFFICE OF KARL SCHWARTZ, Elkins, Pennsylvania, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Before: SILER, MOORE and GIBBONS, Circuit Judges.

SILER, J., delivered the opinion of the court in which GIBBONS, J., joined. MOORE, J. (pp. 816–27), delivered a separate dissenting opinion.


SILER, Circuit Judge.

Edward Lang, an Ohio prisoner under a death sentence, appeals from the district court's denial of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. The district court granted Lang a Certificate of Appealability (COA) on his first and second grounds for relief, and we granted an expansion of the COA to include three additional claims.1 These claims can be reduced to two main issues. The first involves a juror who was related through marriage to one of the victims of the homicide, whom the trial court removed from the jury prior to deliberations. The second concerns the nature and volume of mitigation evidence presented by Lang's defense counsel. For the reasons that follow, we AFFIRM the denial of relief by the district court.

I. Factual Overview

In 2006, Lang shot and killed Jaron Burditte and Marnell Cheek during a botched drug deal turned robbery in Canton, Ohio.2 Lang was indicted on two counts of aggravated murder and one count of aggravated robbery with firearm

889 F.3d 806

specifications. In 2007, the case was tried before a jury.

Juror 386

After the jury had been empaneled and the first two witnesses had testified, the prosecutor notified the trial court that Cheek's father recognized Juror 386 as the daughter of the woman married to Cheek's brother. The trial court decided to address the issue at the next break, after two more witnesses testified. The court later noted that, because the jurors were in the courtroom, they did not have the opportunity to interact with each other. During the break, the trial court and counsel questioned Juror 386 outside the presence of the other jurors. Juror 386 acknowledged her connection to Cheek and said she had met her once and had attended her funeral. The juror said she learned of Cheek's death from her grandfather and from what she had read in the newspaper; however, she denied talking to her mother, step-father, or family members about the case or learning anything about it. The trial court also questioned Juror 386 about her contact with the other jurors. She denied telling any of them about her connection to Cheek. Juror 386 was excused by agreement of the parties.

Before dismissing her, the trial court confirmed that Juror 386 had not spoken with other jurors and instructed her to have no contact with other jurors:

Trial Court: You cannot discuss this at all with any of the other jurors. You have not done so. Is that correct?

Juror 386: No.

Trial Court: No? You cannot discuss this with them. You cannot call them on the phone and talk to them about this. If you would see them on the street or at a store while this case is still going on, you can't discuss with them why you were removed from jury service or anything else about this case whatsoever. Do you understand that?

Juror 386: Yes.

Trial Court: Have you talked to any of them about this whatsoever up until this very moment? Have you talked to any of the other jurors about this at all?

Juror 386: No.

Trial Court: Okay thank you.

The trial court then summoned the jurors and told them that Juror 386 was excused because "it was determined that she may have had a relationship with either a witness or a party or somebody that was involved in the case." The trial court asked the jurors as a group whether Juror 386 had talked to them about knowing someone involved in the case. The judge stated: "I take it by your silence that she did not." Neither Lang's counsel nor the prosecutor asked to question the jurors individually. Juror 386 was replaced, and the trial resumed. State v. Lang , 954 N.E.2d at 613. Lang does not claim a motion for a mistrial was made. When the prosecution rested, Lang presented no evidence. The jury returned a guilty verdict on all counts. Thereafter, the trial court held a separate hearing for mitigation evidence and sentencing.

Mitigation Hearing

At the mitigation hearing, the jury heard evidence, chiefly from Lang's mother and half-sister, about Lang's difficult and dysfunctional childhood. In his opening statement, Lang's defense counsel, Anthony Koukoutas, said, "I am not here to make excuses." He continued to say, "I want to show you that [Lang] [i]s not just a name on a case file or a name that appears in the newspaper, that he's an actual human being." Counsel then previewed what he expected Lang's mother, Tracie Carter, and Lang's half-sister, Yahnene Robinson, to testify. He emphasized

889 F.3d 807

Lang's father's negative qualities and how he abducted, abused, and neglected Lang. He also referred to evidence of Lang's psychiatric problems and the fact that Lang was severely withdrawn and emotionally scarred after living with his father for two years.

The Ohio Court of Appeals summarized Carter's and Robinson's testimony:

{¶ 315} Yahnena Robinson, the defendant's half-sister, had a close relationship with Lang before he was ten years old. She described it as a "typical brother sister relationship." Lang was also a "good student."

{¶ 316} Robinson testified that Lang's father, Edward Lang Sr., abused their mother and was on drugs. Their mother would not allow Edward to visit Lang very often because of "his history and his anger problems."

{¶ 317} After Lang graduated from elementary school, Lang visited his father in Delaware. The visit was supposed to last for two weeks, but Edward did not allow Lang to return home. Two years later, their mother found Lang and brought him home.

{¶ 318} Lang was happy when he first came home, but later, his mood changed. According to Robinson, "he would be sad sometimes, quiet * * * [and] other times he would look real hurt or be angry." Subsequently, Lang received counseling, went to a psychiatric facility, and spent time in a residential facility for his mental-health problems.

{¶ 319} Robinson also testified that Lang has a two-year-old daughter whose name is Kanela Lang.

{¶ 320} Tracy Carter, the defendant's mother, testified that Lang is the third of her four children. Carter met Edward Lang Sr. when he was her landlord. Carter did not have money to pay the rent, and she slept with him in exchange for lodging. Carter and Edward then developed a relationship.

{¶ 321} Carter stated that Edward became violently abusive when he was intoxicated and using drugs. After Lang was born, Edward went to jail for stabbing Carter and setting her apartment on fire. Edward was also incarcerated for child molestation.

{¶ 322} Carter would not allow Lang to visit his father until a court order ordered her to do so. Carter lived in Baltimore, Maryland, and Edward lived in Delaware. When he was ten years old, Lang went to see his father in Delaware for a two-week visit. However, Edward did not allow Lang to return home after the two weeks ended, and Carter did not see her son for the next two years. Carter made repeated attempts to find Lang in Delaware, but was unsuccessful. Finally, Carter found Lang and brought him home.

{¶ 323} Carter stated that her son was malnourished when she found him and was wearing the same clothing that he had been wearing when he left. Lang also had a burn on his shoulder, a gash on his hand, and other bruises. Lang told his mother that the burn was a cigarette burn.

{¶ 324} Before he saw his father, Lang had been treated with Depakote, Lithium, and Risperdal for depression and other conditions. Carter made sure that he took these medications on a regular basis. However, Lang did not continue to take them when he was with his father, because Edward did not obtain refills for the prescriptions.

{¶ 325} After returning home, Lang was withdrawn. Lang told Carter that he was fine and did not want to talk to her about what had happened. But Carter learned from her son, Mendez, that Edward had sexually abused Lang.
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{¶ 326} Lang has received extensive psychiatric and other treatment. Carter testified, "He stayed in the Bridges Program twice for 90 days. He stayed at Woodburn Respiratory [sic] Treatment Center for a year. And he stayed off and on at * * * [the] Sheppard Pratt Center [a crisis center] 28 times."

{¶ 327} Lang has one child, Kanela. Carter states, "He has taken care of his daughter ever since the mother was pregnant. * * * [There] was nothing that he wouldn't do

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