Opinion
Case No. 1:00-CV-023.
December 12, 2008
ORDER GRANTING IN PART AND DENYING IN PART CERTIFICATE OF APPEAL
This matter is before the Court on Petitioner's Motion for Issuance of a Certificate of Appealability ("Motion for COA") (doc. 151), the Report and Recommendations on Motion for COA ("R R on Motion for COA") (doc. 155), and Petitioner's Objections to the R R on Motion for COA (doc. 156).
I. PROCEDURAL HISTORY
On January 18, 2008, this Court issued an Order Granting in Part and Denying in Part Supplemental Petition for Writ of Habeas Corpus (doc. 145) ("the Habeas Order"). In the Habeas Order, the Court conditionally granted the Second (subclaim B), Sixth, and Sixteenth (paragraph 264 of the Supplemental Petition) Grounds for Relief stated in Petitioner Lee E. Moore's Supplemental Petition for Writ of Habeas Corpus. The Court denied all other Grounds for Relief.
Subsequently, the Warden filed a Notice of Appeal (doc. 147) and the Petitioner filed a Notice of Cross-Appeal (doc. 149). Petitioner then moved for the Court to issue a certificate of appealability ("COA"). The Warden opposed the Motion for COA.
In the R R on Motion for COA, the Chief Magistrate Judge recommended issuing a COA to Petitioner on the Second (subclaims A and C), Seventh (subclaims A and D), Thirteenth (subsection D), Sixteenth, Eighteenth (subclaims C and D), Nineteenth, and Twenty-First (subclaim A) Grounds for Relief. The Chief Magistrate Judge recommended denying a COA to Petitioner as to the First, Third (subsection B), Seventh (subsection C), Fifteenth, and Eighteenth (subclaim A) Grounds for Relief.
Petitioner has filed Objections to the R R on Motion for COA insofar as the Chief Magistrate Judge recommended denying the COA as to the First, Seventh (subclaim C), and Fifteenth Grounds for Relief. The Warden has not filed a response to Petitioner's Objections.
II. ANALYSIS A. Standard for Issuing Certificates of Appealability
The Court begins its analysis by examining the standards for issuing COAs in cases governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The relevant statute provides that an appeal may not be taken from a final order in an AEDPA case unless a certificate of appeal is issued:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
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(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from —
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).28 U.S.C. § 2253. District courts have the authority to issue COAs pursuant to this section. Castro v. United States, 310 F.3d 900, 903 (6th Cir. 2002).
The United States Supreme Court has explained that where the district court has denied a constitutional claim on the merits, a COA should issue if the petitioner demonstrates that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The analysis is more complicated if the district court has denied the claim on procedural grounds:
When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. . . . Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. In such a circumstance, no appeal would be warranted.Id. Ordinarily, courts should determine the procedural issues before the substantive issues. Id. at 485.
"[I]ssuance of a COA must not be pro forma or a matter of course." Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). The petitioner must prove something more than a good faith belief in his claims or the mere absence of frivolity. Id. at 338. On the other hand, a court should not deny a COA "merely because it believes the applicant will not demonstrate an entitlement to relief." Id. at 337.
A. Grounds for Relief Upon Which the Chief Magistrate Judge Recommended Issuing a COA
The Chief Magistrate Judge recommended issuing a COA as to seven Grounds for Relief. The Warden has not filed objections to the R R on Motion for COA as to these recommendations. The Court finds the Chief Magistrate Judge's recommendations and reasons therefore to be persuasive. Accordingly, the Court will issue a COA to Petitioner on the Second (subclaims A and C), Seventh (subclaims A and D), Thirteenth (subsection D), Sixteenth, Eighteenth (subclaims C and D), Nineteenth, and Twenty-First (subclaim A) Grounds for Relief.
B. Grounds for Relief Upon Which the Chief Magistrate Judge Recommended Denying a COA
Petitioner Moore's mitigation specialist, Chuck Stidham, had an undisclosed, actual conflict of interest when he simultaneously represented Petitioner Moore and one of Petitioner Moore's co-defendant [sic] on his appeal of convictions and sentences for the same crime. This conflict violated Petitioner Moore's rights, including his right to counsel, due process, equal protection, a fair proceeding, and a reliable sentence. (Doc. 29 at 4.)
1. First Ground for Relief
The Court denied this Ground for Relief in the Habeas Order holding that the claim was procedurally barred and that Petitioner had not established that his appellate counsel were constitutionally ineffective for failing to raise the claim on appeal. As to the facts of the underlying claim, the Court held that Petitioner had not established that Stidham had an actual conflict of interest which affected his performance. (Doc. 145 at 14-19.)
The Court is not persuaded that Petitioner has made a substantial showing of a denial of his Constitutional rights sufficient to obtain a COA. Petitioner had the burden to establish "a factual showing of inconsistent interests and must demonstrate that the attorney made a choice between possible alternative courses of action, such as eliciting evidence helpful to one client but harmful to the other." Thomas v. Foltz, 818 F.2d 476, 481 (6th Cir. 1987) (internal quotations and citations omitted). Reasonable jurists could not conclude that Petitioner has met this burden because he offers only unsubstantiated speculation to support the claim. For example, the portions of Stidham's deposition cited by Petitioner do not demonstrate that Stidham actively participated in the selection of Dr. Chiappone as the mitigation expert. Petitioner has not demonstrated that Stidham acted or failed to act, because of his actual conflict of interest, in a way that was prejudicial to Petitioner and advantageous to his other client. See McFarland v. Yukins, 356 F.3d 688, 705-06 (6th Cir. 2004). In sum, the Court adopts the well-reasoned analysis of the Chief Magistrate Judge on this issue.
2. Seventh Ground for Relief
The prosecutor's misconduct at the mitigation phase closing argument when, among other things, he urged the sentencers to identify with the victim, violated Petitioner Moore's rights, including his rights to due process, equal protection, a fair hearing, and a reliable sentence. (Doc. 29 at 39.)
The remaining issue in regards to the Seventh Claim for Relief is whether Petitioner is entitled to a COA on subclaim C. In subclaim C, Moore contends that the prosecutor improperly argued that the jury should consider non-statutory aggravating circumstances, including suggesting that Moore placed more value on the items he purchased with Melvin Olinger's credit card than he placed on Olinger's life, and requesting that the jury focus on the terror Olinger felt when he was kidnapped. (T.p. 1193-94, 1231-32.) The Court denied relief on this subclaim on the basis that the re-weighing of the aggravating circumstances and mitigating factors by the Ohio Court of Appeals and the Ohio Supreme Court cured the prosecutorial error. (Doc. 145 at 56-58.) The Chief Magistrate Judge recommended denying a COA on this subclaim because reasonable jurists would not disagree with this conclusion.
In the Habeas Order, this Court relied on Clemons v. Mississippi, 494 U.S. 738, 745-46 (1990), to support its holding. The Court distinguished Brown v. Sanders, 546 U.S. 212 (2006), to the extent that the Court found the specific language in Sanders cited by Petitioner applied only in non-weighing states, but not in weighing states like Ohio. The Court found that other language in Sanders supported its denial of the Ground for Relief: "In a weighing State, therefore, the sentencer's consideration of an invalid eligibility factor necessarily skewed its balancing of aggravators with mitigators and required reversal of the sentence (unless a state appellate court determined the error was harmless or reweighed the mitigating evidence against the valid aggravating factors)."Sanders, 546 U.S. at 217 (citations omitted). Courts in this Circuit have differed on how to apply Sanders in weighing states.Compare Slagle v. Bagley, 457 F.3d 501, 521 n. 3 (6th Cir. 2006) (stating in dicta that the Supreme Court in Sanders "decided to no longer distinguish between weighing and non-weighing states when an eligibility factor has been held to be invalid"); Jones v. Bradshaw, 489 F. Supp. 2d 786, 817 n. 16 (N.D. Ohio 2007) (opining in dicta that the Supreme Court in Sanders ended the distinction between weighing and finding states) with Wilson v. Mitchell, 498 F.3d 491, 507 (6th Cir. 2007) (finding that the Supreme Court in Sanders modified the analysis for non-weighing states, but left intact the analysis for weighing states); Adams v. Bradshaw, 484 F. Supp. 2d 753, 788 n. 6 (N.D. Ohio 2007) (instructing in dicta that Sanders applies only in non-weighing states). The Court, therefore, will grant a COA on subclaim C of the Seventh Ground for Relief.
3. Fifteenth Ground for Relief
The sentencers failed to give any weight to the uncontradicted mitigating evidence presented by Petitioner Moore in violation of Petitioner Moore's rights, including his rights to due process, equal protection, a fair proceeding, a reliable sentence, and to be free from cruel and unusual punishment. (Doc. 29 at 65.)
The Court denied relief on this Ground for Relief on the basis that the trial court had not refused to consider any evidence offered in mitigation. Instead, the trial court only had limited the weight that it gave to particular mitigating evidence. Additionally, the Court held that any trial court error in this regard would have been cured by appellate re-weighing. (Doc. 145 at 78-83.) The Chief Magistrate Judge recommended denying Petitioner a COA on this Ground for Relief on the basis that reasonable jurists would not have disagreed with this Court's conclusion.
Petitioner seeks a COA on the basis that it would be debatable among reasonable jurists whether in fact the trial judge did not consider the proffered mitigating factors. However, Petitioner disregards those portions of the trial court record indicating that the trial judge did consider the mitigating evidence to which Petitioner refers. The Court agrees with the Chief Magistrate Judge Merz that a COA should not issue on this Grounds for Relief.
C. Objection Regarding Whether a COA is Necessary Because Petitioner is a Prevailing Party and the Government Has Filed an Appeal.
Finally, Petitioner contends that a COA is not required here because the Court granted his Supplemental Petition in part and the Government has filed an appeal. Petitioner cites Rule 22(b)(3) of the Federal Rules of Appellant Procedure to support his claim. Appellate Rule 22 states in relevant part:
(b) Certificate of Appealability.
(1) In a habeas corpus proceeding in which the detention complained of arises from process issued by a state court, or in a 28 U.S.C. § 2255 proceeding, the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c). If an applicant files a notice of appeal, the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue. The district clerk must send the certificate or statement to the court of appeals with the notice of appeal and the file of the district-court proceedings. If the district judge has denied the certificate, the applicant may request a circuit judge to issue the certificate.
(2) A request addressed to the court of appeals may be considered by a circuit judge or judges, as the court prescribes. If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals.
(3) A certificate of appealability is not required when a state or its representative or the United States or its representative appeals.
Fed.R.App.P. 22 (emphasis added). Petitioner contends that although Rule 22(b)(1) requires a habeas applicant to obtain a COA to "take an appeal," Rule 22(b)(3) obviates that requirement if the Government has taken an appeal. Petitioner contends that because the Goverment has taken an appeal, he is permitted to take a cross-appeal without obtaining a COA.
The Court is authorized to issue a COA regarding issues where Petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). It is not evident to the Court that it has authority to issue a COA on this statutory interpretation question. The Court acknowledges Petitioner's argument here only insofar as it might be necessary to preserve the issue for appeal. The Court notes that while the statutory language does not foreclose Petitioner's argument, other federal courts either have determined that a COA is needed for a petitioner's cross-appeal, see Miller v. Dretke, 404 F.3d 908, 912 (5th Cir. 2005), or have assumed that a COA was needed for a cross-appeal, see Ainsworth v. Woodford, 268 F.3d 868, 873 (9th Cir. 2001); Lurie v. Wittner, 228 F.3d 113, 121 (2d Cir. 2000);Williams v. Cain, 125 F.3d 269, 273 (5th Cir. 1997).
III. CONCLUSION
For the foregoing reasons, Petitioner's Motion for COA (doc. 151) is GRANTED IN PART AND DENIED IN PART, the R R on Motion for COA (doc. 155) is ADOPTED IN PART AND MODIFIED IN PART, and Petitioner's Objections to R R on Motion for COA (doc. 156) are GRANTED IN PART AND DENIED IN PART. The Court ORDERS that COA be issued to Petitioner on the Second (subclaims A and C), Seventh (subclaims A, C, and D), Thirteenth (subsection D), Sixteenth, Eighteenth (subclaims C and D), Nineteenth, and Twenty-First (subclaim A) Grounds for Relief.
IT IS SO ORDERED.