Mitts v. Bagley, 05-4420.

• Decision Date: 08 September 2010
• Docket Number: No. 05-4420.,05-4420.
• Citation: 620 F.3d 650
• Parties: Harry MITTS, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

620 F.3d 650

Harry MITTS, Petitioner-Appellant,

v.Margaret BAGLEY, Warden, Respondent-Appellee.

No. 05-4420.

United States Court of Appeals,Sixth Circuit.

Argued: March 9, 2010.

Decided and Filed: Sept. 8, 2010.

ARGUED: Jeffry F. Kelleher, Jeffry F. Kelleher & Associates, Cleveland, Ohio, for Appellant. Stephen E. Maher, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Jeffry F. Kelleher, Jeffry F. Kelleher & Associates, Cleveland, Ohio, Robert A. Dixon, Cleveland, Ohio, for Appellant. Justin M. Lovett, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before MERRITT, MARTIN, and SILER, Circuit Judges.

MERRITT, J., delivered the opinion of the court, in which MARTIN, J., joined. SILER, J. (pp. 664-65), delivered a separate opinion concurring in part and dissenting in part.

OPINION

MERRITT, Circuit Judge.

This Ohio death penalty case turns on the validity of certain jury instructions that impose a mandatory death penalty that must be addressed first by the jury before consideration is given to life imprisonment. The Ohio “acquittal first” death penalty instructions in this case are the same Ohio instructions that were given in the recent case of Smith v. Spisak, 554 U.S. ----, 130 S.Ct. 676, 175 L.Ed.2d 595 (2010). In Spisak, the Supreme Court held that in light of AEDPA the instructions did not violate the mitigation-unanimity holding of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). The essential constitutional question before us now is whether we should follow Justice Stevens' concurring opinion in the Spisak case, which concludes that, although the instructions do not violate Mills, the instructions do violate the principles of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Justice Stevens, in his concurrence in Spisak, agreed that, “ Mills does not clearly establish [under AEDPA] that the instructions at issue were unconstitutional. But, in my view, our decision in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), does.”

130 S.Ct. at 689 (Stevens, J., concurring). No other justice reached this Beck issue or stated an agreement or disagreement with Justice Stevens' view. Justice Stevens in his Spisak concurrence lays out his view that the principles of the Beck case constitute clearly established law under AEDPA and should invalidate the same jury instructions in Spisak that were repeated in the instant case. In light of Justice Stevens' concurrence, we asked the parties for supplemental briefing analyzing this case in light of Beck.

In essence, the jury instructions in the case before us require the jury to first determine whether the aggravating elements necessary for a mandatory death penalty are present and to impose the death penalty if the aggravating elements predominate: “If you make such a finding then you must recommend to the court that a sentence of death be imposed on the defendant, Harry D. Mitts, Jr.” (Emphasis added.) Only if the jury first acquits the defendant of the death penalty may the jury consider life imprisonment or any lesser-included offense.

After rejecting the State's preliminary argument that Mitts has waived and procedurally defaulted his constitutional argument against the mandatory, “acquittal first” death penalty instructions, we consider and accept Justice Stevens' opinion that these death penalty instructions violate the principles announced in Beck v. Alabama, supra. We then consider two other issues raised by Mitts respecting the ineffective assistance of counsel at the trial and guilt phases of the case and find them to be without merit.

I. ¹

Mitts, an Ohio prisoner under penalty of death, appeals the district court judgment denying his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. On the evening of August 14, 1994, Mitts drank bourbon until he became intoxicated and then shot and killed Bryant, an African American man, while speaking racial epithets. During the police shoot-out that followed, Mitts shot and killed Sergeant Glivar and wounded Lieutenant Kaiser and Officer Mackey before being apprehended.

At trial, Mitts did not contest the evidence proving that he had killed Bryant and Sgt. Gliver, but he instead attempted to establish that he was too intoxicated to form the required intent to kill. After a penalty hearing, the jury recommended the death penalty on both aggravated murder counts and terms of imprisonment for the attempted murders. The trial court sentenced Mitts to death for the aggravated murders and to terms of imprisonment for the attempted murders.

The Ohio Court of Appeals affirmed Mitts' convictions and sentences in December 1996. State v. Mitts, No. 68612, 1996 WL 732452 (Ohio Ct.App. Dec. 19, 1996). The Ohio Supreme Court affirmed the convictions and sentences in March 1998, and it denied rehearing in June 1998. The court ruled that the trial court should have instructed the jury to merge duplicative death penalty specifications, but it held that the error did not influence the jury and was cured by re-weighing on appeal. Mitts, 690 N.E.2d at 530.

Mitts filed a petition for post-conviction relief in September 1996 and an amended petition in March 1999. The trial court denied the petition in August 1999, and the Ohio Court of Appeals affirmed that decision in September 2000. State v. Mitts, No. 76963, 2000 WL 1433952 (Ohio Ct.App. Sept. 28, 2000). The Ohio Supreme Court denied further review. In April 2001, Mitts filed an application to reopen his direct appeal, alleging ineffective assistance of appellate counsel pursuant to Rule 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992). The Ohio Court of Appeals denied the motion in May 2002. State v. Mitts, No. 68612, 2002 WL 1335629 (Ohio Ct.App. May 10, 2002). The Ohio Supreme Court affirmed that decision. State v. Mitts, 98 Ohio St.3d 325, 784 N.E.2d 698 (2003).

Mitts filed his petition for a writ of habeas corpus in the district court in October 2003, raising twelve claims. After a period of discovery, the district court dismissed the petition on all asserted claims of error in a comprehensive opinion. Mitts v. Bagley, No. 1:03CV1131, 2005 WL 2416929 (N.D.Ohio Sept. 29, 2005). Mitts timely appealed.

Mitts' federal habeas petition was filed subsequent to the passage of AEDPA in 1996, and thus its provisions govern this court's review. Under AEDPA, a federal court may not grant habeas relief unless the state court's adjudication of the claim either:

(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 presented in the State court proceeding.

28 U.S.C. § 2254(d). Under the “unreasonable application” prong of this section, the prong most relevant to the instant case, “[a] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly.” Price v. Vincent, 538 U.S. 634, 641, 123 S.Ct. 1848, 155 L.Ed.2d 877 (2003). Rather, “[i]n order for a federal court to find a state court's application ... ‘unreasonable,’ the state court's decision must have been more than incorrect or erroneous[;][it] must have been ‘objectively unreasonable.’ ” Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). As this court has stated, “a federal habeas court must ask whether the state court's application of clearly established federal law was objectively reasonable. If the federal court finds that, viewed objectively, the state court has correctly identified the governing legal principle from the Supreme Court's decisions but unreasonably applied that principle to the facts of the prisoner's case, it may grant the writ.” Millender v. Adams, 376 F.3d 520, 523 (6th Cir.2004).

In analyzing whether a state court decision is contrary to or an unreasonable application of clearly established Supreme Court precedent, a federal court may only look to the holdings of the Supreme Court's decisions as of the time of the relevant state court decision. Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); Williams, 529 U.S. at 412, 120 S.Ct. 1495. The court may look to lower court of appeals' decisions to the extent they illuminate the analysis of Supreme Court holdings to determine whether a legal principle had been clearly established by the Supreme Court. Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir.2003). Finally, the habeas petitioner has the burden of rebutting, by clear and convincing evidence, the presumption that the state court's factual findings were correct. See 28 U.S.C. § 2254(e)(1); McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir.2004).

We certified appealability of Mitts' following claims: (1) unconstitutional penalty-phase instructions; (2) ineffective assistance of counsel in the guilt phase of trial; and (3) ineffective assistance of counsel in the penalty phase of trial.

II.

The State asserts waiver and procedural default as the basis for its argument that we should not reach the merits of Mitts' constitutional claim that the jury instructions in his case are improper. The State's argument is that Mitts “has never challenged his jury instructions under Beck, and no previous court in this case has ever referred to Beck.” Supplemental Brief of Respondent-Appellee at 22. This statement is mistaken. Here the State's highest court considered on direct appeal a federal constitutional claim attacking precisely the same jury instruction and disposed of the appeal by citing one of its earlier cases that decided the same claim by reference to the same U.S. Supreme Court case, Beck v. Alabama. Thus, we have the Ohio Supreme Court in this case referring to...