Tyler v. Anderson

• Decision Date: 13 May 2014
• Docket Number: No. 13–4036.,13–4036.
• Citation: 749 F.3d 499
• Parties: Arthur TYLER, Petitioner–Appellant, v. Carl S. ANDERSON, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

749 F.3d 499

Arthur TYLER, Petitioner–Appellant,

v.Carl S. ANDERSON, Warden, Respondent–Appellee.

No. 13–4036.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 29, 2014.

Decided and Filed: April 15, 2014.

Rehearing En Banc Denied May 13, 2014.^*

ARGUED:Alan C. Rossman, Office of the Federal Public Defender/Capital Habeas Unit, Cleveland, Ohio, for Appellant. Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF:Alan C. Rossman, Vicki Ruth Adams Werneke, Lori B. Riga, Office of the Federal Public Defender/Capital Habeas Unit, Cleveland, Ohio, for Appellant. Charles L. Wille, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: GIBBONS, ROGERS, and SUTTON, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Arthur Tyler, an Ohio inmate sentenced to death for the 1983 murder of Sander Leach, filed in the district court in 2013 an amended motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). The judgment from which Tyler sought relief was entered in 2002. In his amended motion, Tyler requested relief from the denial of his petition for a writ of habeas corpus, alleging the district court's failure to adjudicate two subclaims presented in his petition and his habeas counsel's inexcusable neglect to alert the district court to its alleged omission. The district court denied Tyler's motion but granted a certificate of appealability. For the following reasons, we affirm.

I.

The facts underlying Tyler's conviction are fully recounted in the Ohio Supreme Court's decision on direct appeal. See State v. Tyler, 50 Ohio St.3d 24, 553 N.E.2d 576, 580–82 (1990), cert. denied,498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 334 (1990). We have previously summarized those facts. See Tyler v. Mitchell, 416 F.3d 500, 501 (6th Cir.2005). A very brief summary will suffice here. On March 12, 1983, Sander Leach was shot to death in the van from which he sold produce at the corner of East 66th Street and Zoeter Avenue in Cleveland. Both Tyler and Leroy Head were involved. A Cuyahoga County grand jury indicted Tyler and Head on one count of aggravated murder and one count of aggravated robbery. Head pled guilty to aggravated murder and aggravated robbery, and the death-penalty specification was dismissed. Tyler went to trial. He was convicted of aggravated murder and sentenced to death. State v. Tyler, No. 47533, 1984 WL 6408, at *4 (Ohio Ct.App. Dec. 27, 1984). His conviction was reversed on appeal. Id. at *19. Tyler was retried and convicted of all charges. Tyler, 553 N.E.2d at 582. At both trials, Head testified against Tyler. Id. at 580–82, 588–89;Tyler, 1984 WL 6408, at *2.

On Monday afternoon, December 16, 1985, Tyler's case was submitted to the jury for penalty-phase deliberations. On Tuesday afternoon, after a full day of deliberation, the jury presented the court with a question:

If one group of jurors is positive that the aggravating factors outweigh the mitigating factors and wishes to recommend the death penalty, but the remaining jurors are just as positive that the mitigating factors are strong enough not to recommend the death penalty—and neither group is willing to change that decision, what is the proper procedure to follow at that point?

The court responded:

Well, we can't help you a whole lot on that. I'm going to read something to you that we can do. It is not going to solve any of your problems, but it may give you some cause to consider.

Ladies and gentlemen of the jury, the Court is advised that you have indicated difficulty in reaching the verdict. Now the Court suggests to you that since the trial of this case means a great deal to the parties and to the public and has been expensive in time, efforts and money, the Court urges you to make every reasonable effort to agree on a verdict. You may consider that this case must at some time be decided and that you were selected in the same manner and from the same sources from which any future jury must be selected. There is no reason to suppose that the case would ever be submitted to twelve individuals more intelligent, more impartial or more competent to decide it, or that additional evidence will be produced by either side. It is your duty to make every reasonable effort to decide the case if you can conscientiously do so.

The Court instructs you to return to the jury room and continue your deliberations. So, that is it. I mean, what it says essentially, is that you know-I mean, you can do it as well as anybody. You can just go back there and deliberate.

The next morning, December 18, 1985, Tyler was again sentenced to death. Tyler, 553 N.E.2d at 582. Tyler's conviction and sentence were affirmed on appeal. Id. at 597. Ohio appellate courts rejected Tyler's application for delayed reconsideration, State v. Tyler, 71 Ohio St.3d 398, 643 N.E.2d 1150, 1150 (1994), and post-conviction relief, State v. Tyler, No. 71785, 1998 WL 598531, at *1 (Ohio Ct.App. Sept. 10, 1998); State v. Tyler, 84 Ohio St.3d 1471, 704 N.E.2d 579 (1999) (Table).

On June 11, 1999, Tyler petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. His petition set forth sixty-four grounds for relief, each containing many subparts, two of which are pertinent to this appeal. In his twenty-second claim for relief, entitled “State's Failure to Disclose,” Tyler argued that his conviction and sentence are void because the State of Ohio failed to disclose to trial counsel information material to the guilt phase of the proceedings, specifically that Head received additional sentencing consideration for testifying at Tyler's second trial and that Head was threatened with adverse consequences at the second trial if he did not testify against Tyler. In his twenty-fourth claim for relief, entitled “Errors in Mitigation Phase Charges and Procedures,” Tyler argued that his conviction and sentence are void because the trial court improperly charged the jury during deliberation. Anderson filed a return of writ.

On April 5, 2000, the district court granted leave for Tyler's counsel to take Head's deposition. When Tyler's counsel deposed Head, however, Head invoked the privilege against self-incrimination. William Mason, Cuyahoga County Prosecutor, refused to extend immunity to Head in exchange for his testimony. Tyler then filed a motion in federal court to compel Head's testimony, which the district court denied.

On June 6, 2001, Tyler filed a traverse to Anderson's return of writ. In the traverse, Tyler reiterated the twenty-second and twenty-fourth claims for relief. Anderson filed a response to Tyler's traverse. On May 20, 2002, the district court denied Tyler's petition for a writ of habeas corpus and granted a certificate of appealability on two issues: the sufficiency of the evidence to support the conviction and death sentence and Tyler's right to waive mitigating evidence other than his own unsworn statement.

On May 25, 2002, Tyler sent a letter to his habeas counsel, informing his counsel that the district court's opinion failed to address his subclaim alleging an improper jury instruction during deliberation. Tyler wrote as follows:

And I don't know if you know it or not? But he never answered my deadlock issue claim, and we have to get back with him on that because that is the key the only key I ever banked on, cause when that jury deadlocked with no one willing to change their decision every thing was suppose to end right their except their choice of 20 or 30 years. It was illegal for them to give me the death penalty after that. The instruction he gave, “Allen charge” towards guilt and innocence only compounded the error[—]black letter law that they put in place to legitimize this death penalty.

Tyler requested that his habeas counsel alert the district court to its omission. Tyler reiterated this request in letters to his habeas counsel dated June 16, 2002, and May 12, 2004.

On June 4, 2002, Tyler filed a motion to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59 and to stay his execution. In this motion, Tyler claimed that the district court failed to allow discovery or to hold evidentiary hearings so that Tyler could discover information about Head that was never provided to defense counsel. Tyler did not, however, reassert his claim that the district court issued a coercive jury instruction during the penalty phase. The district court denied the motion. On August 14, 2002, Tyler appealed the district court's denial of his petition for a writ of habeas corpus, requesting that we expand the certificate of appealability to include numerous additional grounds for relief. In his request to expand the certificate of appealability, Tyler reasserted his claim that the prosecution failed to disclose that Head received additional sentencing consideration for testifying at the second trial. Tyler did not reassert the claim of judicial error in the jury deliberation instruction but argued in the request that his trial counsel was ineffective when counsel failed to object to the court's allegedly improper instruction to the jury during deliberation, a claim not asserted in Tyler's habeas petition. Tyler's request for an expanded COA did not mention the district court's failure to address either claim. This court denied Tyler's request on December 11, 2003, and the United States Supreme Court denied Tyler's petition for a writ of certiorari. See Tyler v. Mitchell, 416 F.3d 500, 502 (6th Cir.2005).

On July 20, 2005, we affirmed the district court's denial of habeas relief. Tyler, 416 F.3d at 501. The Sixth Circuit denied Tyler's request for rehearing and for rehearing en banc, and the United States Supreme Court denied Tyler's petition for a writ of certiorari. Tyler v. Anderson, 547 U.S. 1074, 126 S.Ct. 1774, 164 L.Ed.2d 523 (2006).

After his federal habeas litigation came to a close, Tyler returned to state court. He filed a complaint for writ of mandamus,...