Slagle v. Bagley

• Decision Date: 08 August 2006
• Docket Number: No. 04-3490.,04-3490.
• Citation: 457 F.3d 501
• Parties: Billy SLAGLE, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

457 F.3d 501

Billy SLAGLE, Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee.

No. 04-3490.

United States Court of Appeals, Sixth Circuit.

Argued: January 26, 2006.

Decided and Filed: August 8, 2006.

ARGUED:

Kelly L. Culshaw, Public Defender's Office, Ohio Public Defender Commission, Columbus, Ohio, for Appellant. Stephen E. Maher, Attorney General's Office of Ohio, Capital Crimes Section, Columbus, Ohio, for Appellee.

ON BRIEF:

Kelly L. Culshaw, Joseph E. Wilhelm, Robert K. Lowe, Public Defender's Office, Ohio Public Defender Commission, Columbus, Ohio, for Appellant. Stephen E. Maher, Attorney General's Office of Ohio, Capital Crimes Section, Columbus, Ohio, for Appellee.

Before: BOGGS, Chief Judge; MOORE and ROGERS, Circuit Judges.

ROGERS, J., delivered the opinion of the court, in which BOGGS, C. J., joined.

MOORE, J. (pp. 529-34), delivered a separate dissenting opinion.

OPINION

ROGERS, Circuit Judge.

Petitioner Billy Slagle, who was sentenced to death by an Ohio jury for the 1987 aggravated murder of Mari Anne Pope, appeals the judgment of the district court denying his petition for post-conviction relief brought pursuant to 28 U.S.C. § 2254. Slagle broke into his neighbor Pope's house on August 13, 1987, because he wanted to steal something for the following day's drinking. Pope was babysitting two neighborhood children. Ultimately, Slagle went into Pope's bedroom and, after she woke up, stabbed her seventeen times in her chest with her sewing scissors. The two children escaped, called for help, and identified Slagle. The police found Slagle at the scene holding the bloody scissors, and Slagle later described his actions that night in detail. Although Slagle admitted at trial that he killed Pope, he argued that, due to his voluntary intoxication from alcohol and marijuana, he did not have the requisite intent for aggravated murder. The jury, nevertheless, sentenced him to death for aggravated murder.

After the Ohio courts affirmed Slagle's sentence and denied Slagle post-conviction relief, Slagle petitioned the federal district court for habeas relief in December 2001. The court denied his petition. A certificate of appealability (COA) has been granted to consider the following four issues: (1) prosecutorial misconduct, (2) ineffective assistance of trial counsel at the guilt phase of trial for failure to object to certain comments of the prosecution, (3) ineffective assistance of counsel at the penalty phase of trial for failure to object to the prosecution's alleged use of nonstatutory aggravating factors, and (4) ineffective assistance of appellate counsel for failure to challenge trial counsel's decision not to object to the prosecution's closing arguments. Slagle also argues that this court improperly refused to extend his COA to include two additional issues. We affirm.

I.

A. Facts and Trial

When reviewing Slagle's case on direct appeal, the Supreme Court of Ohio considered the trial record and made the following factual findings, which, according to 28 U.S.C. § 2254(e)(1), are presumed correct unless rebutted by clear and convincing evidence:

In the early morning hours of August 13, 1987, the victim Mari Anne Pope was awakened in her home by appellant. Two children, who she had agreed to watch for her neighbors, were also awakened. The children awoke to the voice of Mari Anne inquiring as to who this person was that had entered her home. A man's voice angrily threatened her and ordered her to roll onto her stomach. The man asked if there were others in the house, to which she replied that there were two children upstairs. The man told the victim not to move and that he had a knife at her back. The children then heard Mari Anne begin to pray. The man responded by ordering her to stop praying.

The children recognized the voice and knew the man as Billy Slagle, who lived next door. They first sought to hide, and then to escape. They scurried through the hall and out the back door. One of the children looked into the bedroom and observed Slagle sitting on top of the victim, who was lying upon her stomach. Slagle had on only his underwear. As the children exited, the victim could be heard screaming.

The children were admitted into a neighbor's home and police were called. Police officers arrived momentarily and as they moved around the house, shining a flashlight into the windows, one officer observed a man standing in the rear bedroom. The officer entered and observed appellant attempting to hide in the dining room, armed with blood-covered scissors. After ordering appellant to discard the scissors and lie face down on the floor, the officer placed handcuffs on him.

The officer then went into the bedroom. He observed Mari Anne Pope lying across the middle of the bed. Her nightgown was pulled up around her neck. She was drenched in blood with large holes in her body. On the floor lay Mari Anne's broken rosary, and appellant's tank-top T-shirt.

The officer called to his companion, telling him to call for medical treatment and to take custody of the handcuffed man on the dining room floor. The other officer responded that there was no one on the dining room floor and both officers began to search. Appellant had gotten up and hidden himself in a hallway closet. When the officer passed the closet door in this as yet darkened home, appellant burst from the closet and sought to escape. The first officer to react testified that appellant was very quick and agile. The officer was unable to subdue appellant until two other officers entered the fray. Appellant was observed to have blood on his hands and clothing. He also had a number of superficial scratches and bruises.

Despite efforts to save her, Mari Anne Pope was pronounced dead at 6:00 a.m. The coroner reported that she had been stabbed seventeen times, with many of the stab wounds having been inflicted in and around her chest area. There were four stab wounds in her abdomen, five in the upper and lower extremities, with eight to the chest area, including wounds to the right atrium, pulmonary artery and right lung. She had also been severely beaten about her head and face.

At 10:00 a.m. the same day, Detective John J. McKibben interviewed appellant, after having first advised him of his Fifth Amendment rights. At first, appellant claimed to have no knowledge of the events of that morning. After being reminded that he had been arrested in the victim's home, appellant described his actions on the night of August 12 and the morning of August 13 in some detail.

State v. Slagle, 65 Ohio St.3d 597, 605 N.E.2d 916, 920-21 (1992).

Slagle told Detective McKibben that he entered through a window and proceeded to the basement, looking for something to steal. Slagle said that he took his shoes off and then went upstairs to the room in which the children were sleeping. He next went to Pope's bedroom. As he was searching in her purse, Pope woke up and began screaming. He placed his hands on her mouth to quiet her. Slagle said that they began fighting for the sewing scissors that were next to the bed, and that he ultimately stabbed her "maybe 3 times." JA 464. Slagle also admitted that he tried to rape Pope, but he said that he could not get an erection. After the murder, he saw a flashlight shining into the window, so he ran into a kitchen closet, where the police found him. He said that he was sorry for what had happened. Slagle provided the patrolmen with the name and address of his friend Mike Davis, and with Slagle's social security number, date of birth, and residence. Detective McKidden said that, although Slagle's eyes were glassy, McKidden smelled no alcohol on Slagle's person at the scene or the next morning.

At trial, the evidence revealed that eighteen-year-old Slagle spent the afternoon and evening of the murder with his friends Mike Davis, Kim Jones, and William Vivolo. It is unclear how much Slagle drank that night. Davis testified that he had about twenty beers that day and night and that he and Slagle "always kept up with each other." Slagle also had shots of whiskey and smoked about $50 worth of marijuana. Mike Davis's sister, Andrea, arrived later. She testified that by the early morning Slagle's eyes were bloodshot and that he was slurring his speech. Slagle, according to Mike Davis however, was not staggering, vomiting, or falling over. He left in the early morning on a bicycle and rode for two miles to get home.

Slagle chose to testify. He stated that he broke into Pope's house to steal something so that he would have money for alcohol the next day. He did not recall any events after entering Pope's house until he was fighting with her and holding bloody scissors. He only recalled stabbing Pope once, and he testified that he did not know why he killed her.

On cross-examination, the prosecution asked several questions that Slagle now challenges. The prosecution asked Slagle about his education and work history. The State then asked Slagle how he made money when he was not working. Slagle responded that he sold marijuana to anyone. The State asked whether he sold marijuana to children, and Slagle testified that he did not.

When the State asked, over defense counsel's objection, whether Slagle had ever broken into a house to get money, Slagle responded that he had done so twice. The prosecution also asked whether he supported his family or whether his family supported him. Slagle answered that he was not responsible for anyone.

The State later asked Slagle whether he knew what a rosary was, whether Pope began to pray as he attempted to rape her, whether he told her to shut up, and whether he liked and said prayers. Slagle testified that he did not remember her praying, that he saw nothing wrong with prayers, and that he says prayers.

The prosecution then asked Slagle whether he would have murdered the police officer at the scene, JA 652, murdered the children, JA 654, and taken the scissors home to ...