Woodall v. Simpson, s. 09–5352

• Decision Date: 12 July 2012
• Docket Number: 09–5406.,Nos. 09–5352,s. 09–5352
• Parties: Robert Keith WOODALL, Petitioner–Appellee/Cross–Appellant, v. Thomas L. SIMPSON, Warden, Respondent–Appellant/Cross–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

685 F.3d 574

Robert Keith WOODALL, Petitioner–Appellee/Cross–Appellant,

v.Thomas L. SIMPSON, Warden, Respondent–Appellant/Cross–Appellee.

Nos. 09–5352, 09–5406.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 29, 2011.

Decided and Filed: July 12, 2012.

ARGUED: Susan Roncarti Lenz, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellant/Cross–Appellee. Laurence E. Komp, Manchester, Missouri, for Appellee/Cross–Appellant. ON BRIEF: Susan Roncarti Lenz, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellant/Cross–Appellee. Laurence E. Komp, Manchester, Missouri, David H. Harshaw III, Department of Public Advocacy, LaGrange, Kentucky for Appellee/Cross–Appellant.

Before: MARTIN, COOK, and GRIFFIN, Circuit Judges.

MARTIN, J., delivered the opinion of the court, in which GRIFFIN, J., joined. COOK, J. (pp. 581–88), delivered a separate dissenting opinion.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Warden Thomas L. Simpson appeals from a district court judgment granting in part Robert Keith Woodall's petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Woodall is a Kentucky prisoner under sentence of death. Woodall cross-appeals the part of the judgment denying his remaining claims. Woodall pled guilty to capital murder, capital kidnapping, and first-degree rape. After a penalty trial, the trial court adopted the recommendation of the jury and sentenced Woodall to death on the murder conviction and life imprisonment for the remaining convictions. Woodall unsuccessfully appealed his sentence to the Kentucky Supreme Court and then filed a writ of habeas corpus in federal district court. The district court granted Woodall's petition for a writ of habeas corpus because the trial court denied him his Fifth Amendment right against self-incrimination and made a constitutional error during jury selection. For the following reasons, the judgment of the district court is AFFIRMED.

I.

The facts of this case have been set forth by the Kentucky Supreme Court, Woodall v. Commonwealth, 63 S.W.3d 104, 114 (Ky.2001), and need not be restated in detail. The victim was a sixteen-year-old female. On January 25, 1997, the night of the murder, she left her family home between 7:30 p.m. and 8:00 p.m., heading to a nearby convenience store. When she had not returned home several hours later, her family contacted the police. The victim's unclothed body was found floating in a lake, about one-half mile from the convenience store. Her throat had been slashed twice and her windpipe was totally severed; officials determined the actual cause of death to be drowning.

Woodall pled guilty to capital murder, capital kidnaping, and first-degree rape. At the penalty trial, Woodall cross-examined each of Kentucky's eleven witnesses and called fourteen of his own witnesses who testified about Woodall's life and upbringing. Woodall did not testify and requested that the trial judge instruct the jury that it should not draw any adverse inference from his decision not to testify. The trial judge concluded that Woodall was not entitled to the requested instruction, determining that, by entering a guilty plea, Woodall had waived his right to be free from self-incrimination. The jury recommended that Woodall be sentenced to death for the murder of the victim. The jury recommended that Woodall be punished to two consecutive life sentences for the kidnaping and rape. The trial court adopted these recommendations.

On direct appeal, the Kentucky Supreme Court affirmed Woodall's convictions and sentences, with two justices dissenting. Id. at 134–35. Woodall filed a motion for relief from judgment and a motion to vacate his sentence. The trial court denied both motions and the Kentucky Supreme Court affirmed those decisions. Woodall v. Commonwealth, No. 2003–SC–000475–MR, 2005 WL 3131603 (Ky. Nov. 23, 2005); Woodall v. Commonwealth, No. 2004–SC–0931–MR, 2005 WL 2674989 (Ky. Oct. 20, 2005).

In 2006, Woodall filed his section 2254 petition in federal court. The district court granted habeas relief for two of Woodall's thirty claimed grounds for relief; the court denied Woodall's remaining claims as meritless. Specifically, the district court granted Woodall's petition for habeas on his claim that the trial court violated his Fifth Amendment right against self-incrimination by failing to instruct the jury to draw no adverse inference from Woodall's decision not to testify, despite Woodall's request for such an instruction. The district court also found that the trial court violated Woodall's Fifth, Eighth, and Fourteenth Amendment rights during jury selection when the trial court allowed Kentuckyto use a peremptory challenge to strike an African–American member of the jury without holding a hearing pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The warden appeals both of these decisions. Woodall appeals the district court's denial of his claim that the trial court improperly instructed the jury that they had to find any mitigating circumstances unanimously, and the district court's denial of his motion for the appointment of a mental retardation expert. Because the failure to instruct the jury that it could not draw an adverse inference from Woodall's decision not to testify was a violation of Woodall's Fifth Amendment rights, and because we are in “grave doubt as to the harmlessness” of this violation's impact on the jury's decision to sentence Woodall to death, see O'Neal v. McAninch, 513 U.S. 432, 445, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995), we affirm the district court's grant of the writ of habeas on this basis and do not reach the other questions presented in this appeal.

II.

When considering a petition for a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996, this Court may not grant the writ unless it finds that the state court's decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law,” or (2) “based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d); see also Ruelas v. Wolfenbarger, 580 F.3d 403, 408 (6th Cir.2009). Under the “contrary to” clause, a federal habeas court may grant the writ “if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court on materially indistinguishable facts.” Boykin v. Webb, 541 F.3d 638, 642 (6th Cir.2008) (citing Williams v. Taylor, 529 U.S. 362, 412–13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Under the “unreasonable application” clause, “a federal habeas court may grant the writ if the state court identifies the correct legal principle from the Supreme Court's decisions but unreasonably applie[d that principle to] the petitioner's case.” Id.

The warden challenges the district court's grant of habeas corpus based on the district court's conclusion that the state courts unreasonably applied clearly established federal law. Woodall's principal argument is that the state court violated his Fifth Amendment right against self-incrimination when it refused to give a requested jury instruction that the jurors draw no adverse inference from his decision not to testify.

The Fifth Amendment, made applicable to the states through the Fourteenth Amendment, “forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.” Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The Supreme Court has concluded that the Fifth Amendment requires a trial judge to give a “no adverse inference” instruction when requested by a defendant during the guilt phase of a trial. See Carter v. Kentucky, 450 U.S. 288, 303, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981) (“No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum.”). In Estelle v. Smith, the Supreme Court held that a defendant's entitlement to the Fifth Amendment's protection against self-incriminationextends from the guilt phase to the penalty phase of a bifurcated capital trial. 451 U.S. 454, 462–63, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (“We can discern no basis to distinguish between the guilt and penalty phases of respondent's capital murder trial so far as the protection of the Fifth Amendment privilege is concerned.”). More recently, in Mitchell v. United States, the Supreme Court held that the “rule against negative inferences at a criminal trial appl[ies] with equal force at sentencing,” even where a defendant has pled guilty. 526 U.S. 314, 329, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999); id. at 326, 119 S.Ct. 1307 (“Where the sentence has not yet been imposed a defendant may have a legitimate fear of adverse consequences from further testimony.”).

We are faced with the question of whether Woodall has a clearly established constitutional right to a requested “no adverse inference” instruction during the penalty phase of a capital trial where he declined to testify. “The rule against adverse inferences is a vital instrument for teaching that the question in a criminal case is not whether the defendant committed the acts of which he is accused. The question is whether the Government has carried its burden to prove its allegations while respecting the defendant's individual rights.” Id. at 330, 119 S.Ct. 1307. Woodall's Fifth Amendment rights survived his guilty plea, id. at 326, 119 S.Ct. 1307, and he was entitled to receive a “no adverse inference” instruction once he requested it. Cf. Finney v. Rothgerber, 751 F.2d 858, 863–64 (6th Cir.1985) (finding that the “due process clause requires a trial court, if requested, to instruct the jury...