Scott v. Mitchell

• Decision Date: 24 January 2000
• Docket Number: RESPONDENT-APPELLANT,CROSS-APPELLAN,CROSS-APPELLEE,98-4321,PETITIONER-APPELLEE,Nos. 98-4272,V,s. 98-4272
• Citation: 209 F.3d 854
• Parties: (6th Cir. 2000) JAY D. SCOTT,/BETTY MITCHELL, WARDEN,/ Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 854

209 F.3d 854 (6th Cir. 2000)

JAY D. SCOTT, PETITIONER-APPELLEE/ CROSS-APPELLANT,

V.

BETTY MITCHELL, WARDEN, RESPONDENT-APPELLANT/ CROSS-APPELLEE.

Nos. 98-4272, 98-4321

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: January 24, 2000

Decided and Filed: April 19, 2000

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 95-02037--Kathleen McDonald O'Malley, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] John S. Pyle, Gold, Schwartz & Co., Cleveland, Ohio, Timothy F. Sweeney, Law Office OF Timothy Farrell Sweeney, Cleveland, Ohio, for Appellee.

Stuart A. Cole, Jonathan R. Fulkerson, Office Of The Attorney General OF Ohio, Capital Crimes Section, Columbus, Ohio, for Respondent-Appellant/Cross-Appellee.

Before: Boggs, Siler, and Batchelder, Circuit Judges.

OPINION

Alice M. Batchelder, Circuit Judge.

Respondent Betty Mitchell ("the Warden") appeals the district court's grant of a writ of habeas corpus under 28 U.S.C. § 2254 to Ohio death row inmate Jay D. Scott. The district court granted the writ on the basis of only one of the grounds raised in his petition, finding all of the other grounds either defaulted or meritless. Scott cross-appeals the court's rejection of his remaining arguments. After having the benefit of lengthy oral argument, and having given the careful consideration to the record and the parties' arguments that the gravity of the question before us demands, we are convinced that the district court erred in holding that the ground on which it granted the writ was not procedurally barred. Because we conclude that the district court correctly held that the other grounds raised by Scott's petition were either defaulted or without merit, we will reverse the issuance of the writ.

I. Factual and Procedural Background

A. Factual History

The facts of the underlying crime are not in significant dispute, except to the extent that Scott challenges the sufficiency of the evidence presented at trial to prove these facts. The following summary is largely taken from the district court's Order, which in turn quoted it from the opinion of the Ohio Supreme Court.

On May 6, 1983, Vinnie Prince, owner and operator of the V&E Delicatessen at East 86th Street and Quincy Avenue in Cleveland, was shot and killed during an attempted robbery of her shop. An autopsy revealed that Prince died from a gunshot wound to the chest.

Octavia Hickman, who lived near the delicatessen, testified that on the day of the shooting, while walking back to her home after shopping at the nearby Sav-More Market, she noticed a greenish-blue Cadillac without a rear license plate pull up across from her house. She observed two black males inside the car, one behind the wheel and the other in the back seat. She later observed another black male come over a nearby fence and dive through the open window of the Cadillac. The car then drove away.

Another witness near the deli when the incident occurred was Clifford Roberson. Roberson was heading toward the store with a female companion when they heard a shot fired inside the store. He immediately grabbed his friend and pushed her up against the wall of the building, in an effort to protect her. When he heard a screen door slam, he turned around and saw two black males running from the store. Roberson testified that the taller man was about 5'11" tall, wearing "some type of rag around his head," and holding a long-barreled pistol. Upon opening the store's door, Roberson observed Prince lying "almost to the door as if she was trying to chase them or something." Roberson flagged down a nearby police car and informed the officers of the situation.

Solomon Smith, another witness to this incident, testified that he saw "two men run across the street, and run down to the corner of Mr. Cooper's house, and turn through the alley, and jump the fence." He described the assailants as two black males, one 5'10 " tall, the other "a little shorter." Smith did not observe anything in the fleeing men's hands.

Sometime after this incident, Detective Robert Moore received a telephone call from Ricky Tramble, and arranged to meet with him. Tramble testified that, at this meeting, he informed Officer Moore that on the day Prince was killed, Tramble was with Edward O'Neal, Michael Streeter, Danny Jones, and Scott; they were all at O'Neal's girlfriend's house "to get high." Tramble said he overheard Scott say, "Well I did what I had to do. She shouldn't have made me move like that. F__k it. It's over with." Tramble testified that, later that day, Scott told Tramble, "[t]hese niggers don't know what they're doing. [T]hey get to crying about this and crying about that. This is what I do." Scott professed to Tramble that he was "a stick-up man." Tramble related further that the next day O'Neal informed him that Scott and O'Neal were involved in the V&E Deli incident, including the shooting of Prince.

On the basis of this information, the police apprehended and arrested Danny Jones and confiscated Jones's automobile, an older model, blue, turquoise-bottom Cadillac with a white top, bearing a thirty-day tag but no license plate. Jones signed a typewritten statement stating that he and O'Neal, Streeter, and Scott had been driving around looking for a place to rob. After selecting the V&E Deli as a target, Scott requested "front money" in order to fabricate a purchase, and asked for someone to go into the store with him. O'Neal finally agreed to accompany Scott into the store. At this time, Jones observed that Scott was armed with a .38-caliber pistol that looked like a police revolver, and O'Neal was carrying a .25-caliber automatic handgun. Jones pulled his car around the corner from the V&E Deli, and O'Neal and Scott got out of the car while Jones and Streeter waited for them. Shortly thereafter, Scott and O'Neal came running through a yard and climbed over a fence. O'Neal ran to the car and got in and Scott dived into the car through a window. Jones was told to "pull off." Later, Jones asked O'Neal what happened and O'Neal replied "that J.D. [Scott] shot her [...] cause she went for her [gun]." When Jones asked Scott if he had killed her, Scott replied, "naw she was still standing up when we ran out the door." At trial, Jones repudiated the part of his typewritten statement in which he acknowledged their intent to rob the V&E Deli, contending instead that Scott and O'Neal had gone into the store to get cold beer.

The police also apprehended O'Neal, who also gave them a typewritten statement. O'Neal stated that he, Jones, Streeter and Scott were driving around in Jones's Cadillac. They stopped in front of the V&E Deli because Scott told them he wanted to get some bologna and crackers. O'Neal followed Scott into the store. Scott asked for bologna and crackers and, when the old woman minding the store turned to obtain them, Scott pulled out a pistol. Scott told the woman to "freeze" and when the woman began to "holler" and "yell," Scott fired a single shot at the woman, striking her. O'Neal related that he was momentarily stunned by this occurrence and it was not until Scott grabbed him and pulled him out of the store that he began to run. They jumped the fence and ran to the car. O'Neal stated that he did not see the old woman in the store reach for a weapon.

At trial, O'Neal's testimony differed somewhat from this written statement in that he testified it was he--rather than Scott--who ordered the bologna and crackers in the store. O'Neal further testified that he was unarmed throughout this ordeal and that it was Michael Streeter who had the .25-caliber weapon in his possession while waiting in the car. O'Neal confirmed that he had talked with Tramble about what happened at the V&E Deli.

Barbara Campbell, a trace-evidence analyst with the Cuyahoga County Coroner's Office, testified that the results of a "Walker Nitrate Test" revealed that the muzzle of the gun which killed Prince was approximately 12 inches from her body when it was fired. Campbell further testified that a trace metal test conducted on the victim's hands indicated that Prince did not handle or fire a weapon prior to her death. Detective David Hicks, however, testified that Prince had a fully loaded .38-caliber revolver on her person when she was found.

On May 17, 1983, the grand jury returned its indictments. Scott was apprehended six months later in Philadelphia by Detective James Svekric of the Cleveland Police Department. During the trip back to Cleveland, Scott inquired who was using his name in connection with a homicide and robbery. Up to that point, the arresting officers had informed Scott only that he was wanted in connection with a homicide; they had made no mention that Scott was also charged with aggravated robbery. Scott maintained that he had been in Reading, Pennsylvania, when the incident occurred.

B. Procedural History

Scott and his three accomplices¹ were indicted by the Cuyahoga County Grand Jury on two counts: (1) aggravated robbery in violation of Ohio Rev. Code § 2911.01, and (2) aggravated murder in violation of Ohio Rev. Code § 2903.01. The grand jury added two specifications to the murder count: (1) a death-penalty specification for violation of Ohio Rev. Code § 2929.04(A)(7),² and (2) a firearm specification for violating Ohio Rev. Code § 2941.141.

Scott pled not guilty, proceeded to trial, and was convicted. The trial court then held a sentencing hearing as prescribed by Ohio Rev. Code § 2929.022(A) and 2929.03, and the jury recommended the death penalty. The trial judge adopted the recommendation and sentenced Scott to death for his murder conviction. Scott was also sentenced to 7-25 years of imprisonment for his aggravated robbery conviction and 3 years of imprisonment for the firearm specification.

Scott timely appealed his convictions and death...