Tinsley v. Million

• Decision Date: 22 February 2005
• Docket Number: No. 02-5796.,02-5796.
• Citation: 399 F.3d 796
• Parties: Scott Lee TINSLEY, Petitioner-Appellant, v. George MILLION, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

399 F.3d 796

Scott Lee TINSLEY, Petitioner-Appellant, v. George MILLION, Warden, Respondent-Appellee.

No. 02-5796.

United States Court of Appeals, Sixth Circuit.

Argued: December 2, 2004.

Decided and Filed: February 22, 2005.

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ARGUED:

Howard J.C. Nicols, Squire, Sanders & Dempsey, Cleveland, Ohio, for Appellant. Perry T. Ryan, Office of the Attorney General, Frankfort, Kentucky, for Appellee.

ON BRIEF:

Howard J.C. Nicols, Steve A. Delchin, Squire, Sanders & Dempsey, Cleveland, Ohio, for Appellant. Perry T. Ryan, Office of the Attorney General, Frankfort, Kentucky, for Appellee.

Before: GILMAN and SUTTON, Circuit Judges; McKEAGUE, District Judge.^*

OPINION

SUTTON, Circuit Judge.

Scott Lee Tinsley challenges the district court's denial of his petition for habeas corpus relief following his conviction and 75-year sentence for the murder of Tammy Marie Brier. For the reasons that follow, we affirm the judgment in all respects but one — whether Tinsley's counsel provided ineffective assistance at the penalty phase by failing to give an opening and closing argument — which we remand to the district court to consider in the first instance.

I.

On October 30, 1987, Brier was beaten and shot to death after a violent struggle in her home. Police found blood in more than one room of the house, including evidence of a pool of blood in a room separate from where the body was found. Brier had multiple blunt trauma wounds to the face and multiple "defensive wounds," JA 536, including bruises, abrasions and lacerations on her hands and arms. More critically, the assailant shot her three times. Investigators concluded that she was shot first in the chest, probably in a different room from where her body was found. She was then shot in the side of the head, which would have incapacitated and possibly killed her. Finally, she was shot at point blank range through the nostril, presumably after she was unconscious because such a shot is inconsistent with "a person who is awake and alert and struggling." JA 542.

The evidence produced at trial showed that Brier's live-in boyfriend, Scott Lee Tinsley, had been playing cards with friends that night. At some point during the evening, he left the card game and returned home, armed with a .380 automatic pistol. A short time later, Tinsley returned to the site of the card game holding an infant child, Simon, who was his and Tammy's son. Tinsley and Simon both had blood on their clothes, including a fine mist of blood spatters on Tinsley's shirt and blood smears on Tinsley's clothes.

Police at the scene located six spent .380 cartridges on the floor of the home and found gunshot residue on Tinsley's hands. The police also placed Tinsley's car in the driveway and determined that a bullet hole in his car matched the angle of a bullet hole in his house, suggesting that Tinsley's car was present when a shot was fired from within the house.

On November 2, 1987, a Kentucky grand jury indicted Tinsley for the murder of Brier. Tinsley pleaded not guilty, maintaining that he came home from a card game to find intruders leaving the home and that he and the intruders had exchanged gunfire outside the home. He claimed that he entered the home to find Brier already dying of her injuries, and her blood ended up on his clothes when he picked her up and held her. Tinsley Br. at 7. He also claimed that he had been working on and firing guns earlier that day, which explained the presence of gunshot residue on his hands.

Tinsley's initial trial was held in May 1989. On the third day of the trial, Tinsley moved for a mistrial on the ground that the prosecution had failed to disclose exculpatory evidence, a bloodstained "sleeper" that Simon had been wearing on the night of the murder. The trial court agreed that the sleeper was exculpatory — because it could show that Tinsley had Brier's blood on his clothes only because he picked up Simon at which point the blood on the sleeper transferred to Tinsley's clothes — and granted the mistrial. Tinsley filed a writ of prohibition to bar a second trial on double-jeopardy grounds, but the state courts (ultimately the Kentucky Supreme Court) rejected the claim on the ground that the prosecution had not acted in bad faith in failing to disclose the sleeper. Tinsley v. Jackson, 771 S.W.2d 331 (Ky.1989).

A new trial was held on August 28 and 29, 1989, at the end of which the jury found Tinsley guilty of Brier's murder. After the bifurcated penalty phase of the trial in which the prosecution sought a 90-to-100-year sentence, the jury sentenced Tinsley to a 75-year prison term.

Tinsley sought two forms of relief from his conviction and sentence in the state courts — first a direct appeal, then a post-conviction challenge — both unsuccessfully. Having exhausted these state-court options, Tinsley filed a federal habeas petition on June 26, 2000. He raised the following claims: ineffective assistance of counsel, double jeopardy, denial of due process, right to a properly empaneled grand and petit jury, right to be tried by indictment, right to a trial by an impartial jury and right to be free from compulsory self-incrimination. After an evidentiary hearing concerning the penalty phase, a magistrate recommended denying habeas relief on all claims. With one exception (the addition of another ground on which habeas relief should be denied), the district court accepted the magistrate's report and recommendation, denying Tinsley's petition on June 11, 2002.

II.

Under the Anti-Terrorism and Effective Death Penalty Act, we may grant relief on a federal constitutional claim decided by the state courts on the merits only if the state court's adjudication of the claim "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); see Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Findings of fact made by the state court are presumed correct, and this presumption may be rebutted only by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir.2003).

A.

Tinsley first argues that his trial counsel, Harry Hellings, provided ineffective assistance in violation of the Sixth (and Fourteenth) Amendment in a variety of ways. To establish ineffective assistance of counsel, a petitioner must show (1) that his lawyer's performance was deficient and (2) that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In satisfying the first requirement, the petitioner must establish that his lawyer's performance "fell below an objective standard of reasonableness" as measured by "prevailing professional norms." Id. at 687-88, 104 S.Ct. 2052. Judicial review of the lawyer's performance must be "highly deferential," with "a strong presumption" that a lawyer's conduct "falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."); see also Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Bigelow v. Williams, 367 F.3d 562, 570 (6th Cir.2004).

In satisfying the second requirement — prejudice — the petitioner must demonstrate a "reasonable probability" that the result of the trial would have been different but for counsel's mistakes. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. A "reasonable probability" is a probability "sufficient to undermine confidence in the outcome," id., but something less than a showing that the outcome more likely than not would have been different, id. at 693, 104 S.Ct. 2052. While the claimant need not conclusively demonstrate his "actual innocence," compare Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (requiring petitioner to establish more likely than not that no reasonable juror would have convicted him), with Strickland, 466 U.S. at 693, 104 S.Ct. 2052 ("we believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case"), the focus should be on whether the result of the trial was "fundamentally unfair or unreliable," Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

1.

Tinsley initially claims that Hellings provided ineffective assistance during the voir dire, pointing to what the Kentucky Court of Appeals described as Hellings'"unusual" strategy, JA 167, of allowing potential jurors to volunteer to be removed with seven of the defense's nine peremptory challenges. But "unusual" or not, this strategy came at the end, not the beginning, of considerable other information gathering about the jury pool, came after considerable consultation with his client about the jury pool and, placed in the context of the rest of the voir dire, was not merely an invitation for volunteers to leave the jury but an inquiry about whether prospective jurors could be fair in deciding Tinsley's case. Under these circumstances, ineffective assistance of counsel did not occur.

First, Tinsley and Hellings were not starting from a clean slate; they had already picked one jury from the same community before. In view of the mistrial that was declared three days into the first trial, Tinsley and Hellings had already had an opportunity to share considerable information about the prospective juror pool, and notably Tinsley has registered no complaints that his counsel took an overly casual approach to voir dire when they picked their first jury. Indeed, as he points out in his double...