Sheppard v. Bagley

Citation604 F.Supp.2d 1003
Decision Date04 March 2009
Docket NumberCase No. 1:00-cv-493.
PartiesBobby T. SHEPPARD, Petitioner, v. Margaret BAGLEY, Warden, Respondent.
CourtU.S. District Court — Southern District of Ohio

Carol Ann Wright, Melissa J. Callais, Steven Scott Nolder, Federal Public Defenders Office, Columbus, OH, for Petitioner.

Charles L. Wille, Justin M. Lovett, Ohio Attorney General's Office, Criminal Justice Section Capital Crimes Unit, Columbus, OH, for Respondent.

OPINION AND ORDER

GREGORY L. FROST, District Judge.

Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action under 28 U.S.C. § 2254. This matter is before the Court upon the Magistrate Judge's Report and Recommendation of June 1, 2004 (Doc. # 94), in which the Magistrate Judge recommended granting relief on the allegations of prosecutorial misconduct during penalty phase closing arguments set forth in Petitioner's fifth ground for relief and certain allegations of ineffective assistance of appellate counsel set forth in Petitioner's tenth ground for relief.1 Also before the Court are Respondent's objections (Doc. # 95), Petitioner's limited objections (Doc. # 100), Respondent's response to Petitioner's limited objections (Doc. # 102), Petitioner's memorandum in opposition to respondent's response (Doc. # 103), and Petitioner's reply in support of his limited objections (Doc. # 106).

This matter is also before the Court on upon the Magistrate Judge's Supplemental Report and Recommendation of December 16, 2004 (Doc. # 108), in which the Magistrate Judge essentially rescinded his recommendation to grant relief on certain allegations of appellate counsel ineffectiveness set forth in Petitioner's tenth ground for relief and stood by the original recommendation to grant relief on the allegations of prosecutorial misconduct during penalty phase arguments set forth in Petitioner's fifth ground for relief. Also before the Court are Respondent's objections (Doc. # 110), Petitioner's objections (Doc. # 112), Petitioner's response to Respondent's objections (Doc. # 113), and Respondent's response to Petitioner's objections (Doc. # 114).

I. Standards of Review

This Court reviews de novo those portions of the Report and Recommendations to which the parties objected. See, e.g., Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D.Mich.2002). In that regard, Fed. R.Civ.P. 72(b)(3) provides:

The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Fed.R.Civ.P. 72(b)(3). Further, although "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings," Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), this Court has reviewed both Report and Recommendations de novo. See, e.g., Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir.1986).

Because this is a habeas corpus case, provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") that became effective prior to the filing of the instant petition, apply to this case. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under the AEDPA, a federal court shall not issue a writ of habeas corpus on a claim that the state courts adjudicated on the merits unless the state court adjudication "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," 28 U.S.C. § 2254(d)(1), or "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)(2). Section 2254(d)(1) circumscribes a federal court's review of claimed legal errors, while § 2254(d)(2) places restrictions on a federal court's review of claimed factual errors.

Under § 2254(d)(1), a state court decision is "contrary to" Supreme Court precedent "when the state court confronts facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent" or "when the state court `applies a rule that contradicts the governing law set forth in' Supreme Court cases." Williams v. Coyle, 260 F.3d 684, 699 (6th Cir.2001) (quoting Williams v. Taylor, 529 U.S. 362, 406-07, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). A state court decision involves an unreasonable application of Supreme Court precedent if the state court identifies the correct legal principle from the decisions of the Supreme Court but unreasonably applies that principle to the facts of the petitioner's case. Coyle, 260 F.3d at 699. A federal habeas court may not find a state adjudication to be "unreasonable" simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Id. Rather, a state court's application of federal law is unreasonable "only if reasonable jurists would find it so arbitrary, unsupported or offensive to existing precedent as to fall outside the realm of plausible credible outcomes." Barker v. Yukins, 199 F.3d 867, 872 (6th Cir.1999).

Further, § 2254(d)(2) prohibits a federal court from granting an application for habeas relief on a claim that the state courts adjudicated on the merits unless the state court adjudication of the claim "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)(2). In this regard, § 2254(e)(1) provides that the findings of fact of a state court are presumed to be correct and that a petitioner bears the burden of rebutting the presumption of correctness by clear and convincing evidence.

II. Petitioner's Claims
A. Ground One: Improper Exclusion of Prospective Juror for Cause.

In his first ground for relief, Petitioner argued that the trial court erred by excluding for cause a prospective juror who had stated that a defendant's expression of remorse would be an important factor to her in determining whether to recommend a death sentence. (First Amended Petition, Doc. # 77, at ¶¶ 1-16.)

The Magistrate Judge recommended denying Petitioner's claim as procedurally defaulted and without merit. (Doc. # 94, at 1071-73.) Specifically, the Magistrate Judge concluded that Petitioner had procedurally defaulted this claim because he had argued in the state courts that the State violated his Fourteenth Amendment rights by failing to abide by its own statutory standard governing the exclusion of jurors who express scruples about the death penalty, while arguing in this habeas corpus proceeding that the State violated his Sixth, Eighth, and Fourteenth Amendment rights by failing to abide by clearly established federal law governing the exclusion of jurors who express scruples against the death penalty. In so doing the Magistrate Judge acknowledged his unusual, albeit not inappropriate, action in raising sua sponte a procedural default that Respondent failed to raise. But the Magistrate Judge concluded that it was particularly appropriate to do so "where the petitioner explicitly argued in the state courts that state law provided him with more protections tha[n] the corresponding federal law, and where he rested his state claims exclusively on state law...." (Id. at 1072-73.)

The Magistrate Judge went on to recommend denying Petitioner's claim on the merits. Specifically, the Magistrate Judge explained:

Although the prosecutor and judge interrupted [prospective juror number 23] and prevented her from fully answering some of the questions they themselves had asked her, she stated that she could not impose the death penalty on someone who was repentant, and conversely, could only impose it on someone who was not sorry for what he had done. (Trial Tr. at 327-31.) Given the deference the trial judge's credibility determinations are due, this Court could not say that the judge's decision to excuse PJ-23 for cause "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or that it "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).

(Id.) Quoting from State v. Williams, 99 Ohio St.3d 493, 499-500, 794 N.E.2d 27, 39 (2003), the Magistrate Judge further concluded that even assuming that Petitioner had presented to this Court an argument that the State had violated his Fourteenth Amendment right to due process by not following its own law, the argument would have been unavailing because it was based upon an incorrect interpretation of the state law.

Subsequently, in a Supplemental Report and Recommendations, the Magistrate Judge reiterated his initial finding that Petitioner's claim was procedurally defaulted. (Doc. # 108, at 1124-26.) Specifically, the Magistrate Judge concluded that Petitioner had not fairly presented to the state courts the federal claim that he advanced in his habeas petition because Petitioner had explicitly and deliberately eschewed federal cases employing constitutional analysis and terms particular to federal constitutional rights in favor of state constitutional and statutory law. By arguing that state law afforded him greater protection than federal law, the Magistrate Judge concluded, Petitioner actually deprived rather than provided the state courts an opportunity to remedy the constitutional violation...

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