Scott v. Houk

• Decision Date: 02 October 2014
• Docket Number: No. 11–4361.,11–4361.
• Parties: Michael Dean SCOTT, Petitioner–Appellant, v. Marc HOUK, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

760 F.3d 497

Michael Dean SCOTT, Petitioner–Appellant,

v.Marc HOUK, Warden, Respondent–Appellee.

No. 11–4361.

United States Court of Appeals, Sixth Circuit.

Argued: June 26, 2014.

Decided and Filed: July 28, 2014.

Rehearing En Banc Denied Oct. 2, 2014.^*

ARGUED: David L. Doughten, Cleveland, Ohio, for Appellant. Megan Dillhoff, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: David L. Doughten, Cleveland, Ohio, John P. Parker, Cleveland, Ohio for Appellant. Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: COLE, GRIFFIN, and KETHLEDGE, Circuit Judges.

OPINION

COLE, Circuit Judge.

After his conviction in Ohio state court for two murders and the aggravated robbery and kidnapping of one of his victims, petitioner Michael Dean Scott was sentenced to death. Scott appealed and pursued post-conviction remedies in state court, to no avail. He now seeks habeas relief under 28 U.S.C. § 2254. The district court denied relief.

Scott obtained a certificate of appealability and now presents four arguments: (1) that Ohio's “course-of-conduct” capital specification was unconstitutional as applied to his case; (2) that the trial court erroneously failed to merge two other aggravating specifications, for robbery and kidnapping; (3) that his trial counsel provided ineffective assistance, first by giving him erroneous advice about the risks of making an unsworn statement, and second by failing to present certain mitigating evidence at the penalty phase of trial; and (4) that Ohio's method of execution by lethal injection is unconstitutional.

Scott did not present his first argument in state court, so it is procedurally defaulted. AEDPA's stringent standard of review applies to Scott's second and third claims, and because Scott cannot show that the Ohio courts reached a decision that contravened or unreasonably applied Supreme Court precedent, he is not entitled to relief on these claims. Finally, as to his fourth claim, Scott is currently challenging Ohio's execution procedures in federal district court, in a separate action brought under § 1983, and we conclude that consideration of this issue is properly confined to that forum. We therefore must affirm the district court's denial of relief.

I. OVERVIEW

A. Factual Background

The facts surrounding Scott's crimes are not in dispute. The relevant events began on August 24, 1999, in the early morning, as Scott and his friends Michael Wilson and Ryan Allen were walking from a mall in Canton, Ohio, to another friend's apartment. During their walk, a man named Dallas Green drove by, and Scott yelled out to him. Although Scott and Green apparently did not know each other, Green stopped his car and got out, and the group began talking. As the Supreme Court of Ohio explained it, Green then insulted Scott and his friends, “talking as if the others ‘were his girlfriends' ” and “telling each, ‘You are my bitch.’ ” State v. Scott, 101 Ohio St.3d 31, 800 N.E.2d 1133, 1137 (2004).

Green eventually returned to his vehicle. Scott asked Green for a ride, which Green refused him, and then asked for the time. “When Green turned his head to look at the clock on the dashboard, Scott pointed a .22 caliber handgun at him, said, ‘Now who the bitch mother fucker,’ and then shot Green twice in the back and once in the left cheek.” Id. Green later died from the gunshot wounds. Id.

Scott and his friends fled the scene, and Scott warned them “that he would shoot them if they told anybody about the shooting.” Id. Nevertheless, Scott told a third friend, Todd Jewell, about the murder. A week or two later, in early September, he also told Jewell that he “wanted to test drive a car and kill the owner.” Id. Jewell protested, pointing out that Scott could steal a car without killing anyone.

On Friday, September 10, 1999, Scott, along with Jewell and Scott's girlfriend Kerry Vadasz, “saw a Ford Probe with a ‘for sale’ sign in the window parked in the front yard of Ryan Stoffer's [grandmother's house] in Canton, Ohio.” Id. Scott wrote down the telephone number from the sign and again told Jewell that he planned to “call the owner, take the car for a test drive, have Vadasz drive, and shoot the owner from the back seat.” Id. Scott made the arrangements, and Jewell drove him to meet Stoffer. The three men then took a test drive, but Scott did not attempt to kill Stoffer on this occasion. Instead, he told Stoffer that he would return because he wanted his girlfriend to see the car.

Two days later, Vadasz contacted Stoffer to set up a second test drive. Scott and Vadasz met Stoffer at his grandmother's house, and Stoffer's mother watched as he got in the car with Scott and Vadasz. Vadasz took the driver's seat, Stoffer sat next to her in the passenger seat, and Scott sat in the back. Vadasz then proceeded to drive “for the next hour and a half. As time passed, Stoffer provided directions on how to return to his grandmother's house, but ostensibly because Vadasz had little experience with driving a standard transmission, Scott told her to keep driving until she got used to it.” Id. at 1138.

Eventually, Scott “removed a .22 caliber handgun from his pants pocket and placed it on the seat.” Id. Scott later explained in his confession to police that, “ ‘after about ten minutes, [he] just lifted [the gun] up and sat it back behind the head rest of [Stoffer's] chair. And just left it sittin’ there for like two more minutes.' Scott then fired six shots into the back of Stoffer's head.” Id.

Scott and Vadasz disposed of Stoffer's body, dumping it in a wooded area. Scott reacted to the murder by boasting to Jewell and another friend about the shooting, and by driving Stoffer's car to work the next day. Over the following week, however, police received an anonymous phone call linking Scott to Stoffer's death. They also obtained telephone records showing that the Stoffer household had received a call from the residence of Anthony Scott, the petitioner's brother. Scott was arrested, and Vadasz cooperated with the investigation by leading police to Stoffer's body and to the car. Police located other physical evidence as well.

Ultimately, Scott confessed to Stoffer's murder, providing a detailed account to police. When asked about Green's murder, “[h]e initially denied any involvement but then blurted out, ‘Okay, I did it,’ ” and again provided a detailed summary of the events. Id. at 1139.

B. Procedural History1. State Court Proceedings

Scott was tried for the murders of both Green and Stoffer, and all other associated offenses, in one proceeding held in the Stark County Court of Common Pleas in the spring of 2000. He was convicted and sentenced to death. While the state presented Scott's confession, eyewitness testimony, and forensic evidence, Scott's counsel did not put forth any evidence during the guilt phase of trial, instead conceding that the evidence of guilt was overwhelming. Id. Counsel did, however, call thirteen witnesses during the penalty phase and offered documentary evidence of various mitigating circumstances. Id. The jury found Scott guilty and recommended a sentence of death after concluding that three aggravating factors applied. The court accepted this recommendation and sentenced Scott to death for Stoffer's murder, and to additional terms of imprisonment for his other convictions, including Green's murder and the aggravated robbery and kidnapping of Stoffer. Id. at 1140.

Scott appealed to the Supreme Court of Ohio in May 2000. Among other points, Scott argued that (1) the “course-of-conduct” aggravating circumstance was based on insufficient evidence and was against the manifest weight of the evidence; (2) the separate specifications for aggravated robbery and kidnapping were based on insufficient evidence and against the manifest weight of the evidence; and (3) Scott's trial counsel performed ineffectively by failing to object to certain evidence. The court affirmed Scott's conviction and sentence in January 2004. Id. at 1133, 1151. One justice dissented on the basis that Ohio's course-of-conduct specification was unconstitutionally vague as applied, although Scott had not presented that argument to the court. Id. at 1151–52, (Pfeifer, J., dissenting).

Next, Scott filed a petition for post-conviction relief in the Stark County Court of Common Pleas in January 2001. Scott again argued that his trial counsel was ineffective and also claimed that death by lethal injection violates the Eighth Amendment. The trial court denied Scott's petition; Scott appealed, and the Court of Appeals for the Fifth District affirmed. State v. Scott, No. 2005CA00028, 2006 WL 173171 (Ohio Ct.App. Jan. 23, 2006). The Supreme Court of Ohio declined jurisdiction over the appeal in June 2006.

Lastly, in April 2004, Scott sought relief in state court one final time through a proceeding known as a Murnahan or Rule 26(B) appeal,¹ which permits defendants to re-open their direct appeal if they can first show ineffective assistance of appellate counsel. Scott's Murnahan application alleged that his appellate attorney had committed several errors, including failing to argue that the course-of-conduct aggravating factor was unconstitutional under the Eighth and Fourteenth Amendments. In July 2004, the Supreme Court of Ohio summarily denied his application. State v. Scott, 102 Ohio St.3d 1528, 811 N.E.2d 1148 (2004) (table).

2. Federal Habeas Proceedings

Scott filed his habeas corpus petition in the Northern District of Ohio in June 2007, raising fifteen grounds for relief. The district court issued a memorandum opinion and order denying relief on all grounds, but then granted Scott a certificate of appealability to pursue his claim that trial counsel had provided ineffective assistance during the penalty phase. This court expanded the scope of the certificate to include the following additional claims:

1. [W]hether the “course-of-conduct” aggravating...