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McGuire v. Mitchell

July 2, 2007

DENNIS MCGUIRE, PETITIONER,
v.
BETTY MITCHELL, RESPONDENT.



The opinion of the court was delivered by: District Judge Susan J. Dlott

ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS

In this case, Chief Magistrate Judge Michael R. Merz has recommended that Petitioner Dennis McGuire's Amended Petition for Writ of Habeas Corpus (doc. 28) be dismissed with prejudice. Pending before the Court are Chief Magistrate Judge Michael R. Merz's Report and Recommendations ("the R&R") (doc. 91), Petitioner's Objections to the R&R (doc. 94), Petitioner's Reply Objections to the R&R (doc. 96, doc. 98 ), Chief Magistrate Judge Merz's Supplemental Report and Recommendations ("the Supp. R&R") (doc. 99), and Petitioner's Objections to the Supp. R&R (doc. 100). Respondent has filed Memoranda Opposing the Objections (docs. 95 and 101). For the reasons that follow, the Court will OVERRULE Petitioner's Objections and DENY the Amended Petition for Writ of Habeas Corpus.

I. FACTUAL AND PROCEDURAL HISTORY

A. Factual Background of the Crime

The Ohio Supreme Court described the facts and circumstances leading to Petitioner McGuire's indictment, trial, convictions, and sentence of death as follows:

Dennis McGuire, appellant, was convicted of the kidnapping, rape and aggravated murder of twenty-two-year-old Joy Stewart of West Alexandria, Ohio. He was sentenced to death.

Joy Stewart was last seen alive on February 11, 1989. That morning, she had breakfast with her neighbors between 9 and 10. She went there alone that morning because her husband, Kenny Stewart, a truck driver, worked that day from approximately 7:00 a.m. to 5:00 p.m. After breakfast, Joy went to visit Juanita Deaton, the mother of her friend Chris Deaton. Mrs. Deaton and her son lived next to each other in a duplex in West Alexandria.

McGuire had been hired by Chris Deaton to clean the ice out of his gutters that day. According to Chris, McGuire started around 9 or 10 a.m., and finished around noon. Mrs. Deaton testified that Joy arrived at around 9:30 or 10:00, while McGuire was working.

Mrs. Deaton saw Joy talking to two unidentified males in a dark-colored car before she left. As Joy was leaving, she told Mrs. Deaton that "she was going to catch a ride somewhere," although Mrs. Deaton did not actually see Joy leave in the car. Mrs. Deaton was unsure whether McGuire was one of the men in the car. A few minutes later, however, Mrs. Deaton asked whether McGuire had finished working on the gutters, and her son stated that McGuire had been paid and left. Jerry Richardson, McGuire's brother-in-law, testified that McGuire later came over to his house that afternoon. While they were in Richardson's garage, Joy came in and said she wanted some marijuana. Richardson further testified that McGuire offered to get her some, and the two left in McGuire's car.

The following day, February 12, two hikers found the body of Joy Stewart in some woods near Bantas Creek. The front of her shirt was saturated with blood. One deputy sheriff at the scene, Larry Swihart, also noted that there appeared to be a "blood wipe mark" on her right arm. The body was taken to the Montgomery County Coroner's Office, where an autopsy was performed. The autopsy revealed that Joy had been stabbed twice. One wound, located above the left collarbone, caused no significant injury. The critical wound was a four-and-a-half-inch-deep cut in the throat, which completely severed the carotid artery and jugular vein. The doctor determined that Joy was alive when she received the wound, and that such a wound could have been caused by a single-edged blade shorter than four and a half inches, due to "how soft and moveable the tissues are in the neck." The autopsy also revealed abrasions around the neck, impressed with the cloth pattern of Joy's shirt.

The coroner's office also took vaginal, oral, and anal swabs. The coroner found an abundant amount of sperm on the anal swab, some sperm on the vaginal swab, and none on the oral swab. The coroner indicated that sperm could be detected in the vagina for days or sometimes weeks after ejaculation; however, sperm in the rectum could be detected for a lesser time "because the environment is fairly hostile for sperm, and * * * a bowel movement * * * usually will purge the rectum of any sperm."

Investigator David Lindloff of the Preble County Prosecutor's Office investigated the murder, but to no immediate avail. However, in December 1989, Lindloff was notified that McGuire wanted to talk to him about information concerning a murder in Preble County. McGuire was in jail at the time on an unrelated offense and told a corrections officer that he needed to talk to Investigator Lindloff and Deputy Swihart.

Joseph Goodwin, the corrections officer McGuire initially talked to, took appellant to a private room to talk, where McGuire told him that he knew who had killed Joy Stewart. McGuire stated that Jerry Richardson, McGuire's brother-in-law, had killed Joy with a knife, and appellant could lead investigators to it. McGuire explained to Officer Goodwin that Richardson had wanted to have sex with Joy, but she had refused. McGuire claimed that Richardson then pulled a knife on her, and forced her to have oral sex with him. McGuire then said Richardson anally sodomized her because he "couldn't have regular sex with her because she was pregnant." He also said Richardson stabbed her "in the shoulder bone" and "cut her throat."

Based on these details, Goodwin contacted Investigator Lindloff, who talked to McGuire on December 22, 1989. McGuire told Lindloff that Richardson committed the murder, that he stabbed Joy twice in the neck, and that "the first time it didn't go in. He pulled the knife back out and stuck her again." Lindloff was interested, since the fact that Joy had been stabbed twice in the neck and anally sodomized had not been revealed to the public at that time. The appellant also described in detail the area where Joy's body had been found.

McGuire then led Lindloff and deputies to the murder weapon, on a local farm where he and Richardson had occasionally worked. McGuire led the officers to the hayloft and showed them where a knife was hidden behind a beam.

A subsequent audiotaped interview by Deputy Swihart elicited further details from McGuire. McGuire claimed that Richardson choked Joy before stabbing her and wiped his bloody hands off on her, both of which actions were consistent with the state of Joy's body at the crime scene. Again, Swihart felt that these details were significant, since they had never become a matter of public knowledge. Furthermore, McGuire stated that he was pretty sure that Richardson was driving his mother's blue Ford Escort the day of the murder. However, Richardson's mother later testified at trial that she had traded that car in 1988, a year before the murder, and Richardson did not have access to her car on the day of the murder, since she had driven it to work.

While in prison on December 24, 1989, McGuire received a visit from his childhood friend Shawn Baird. At the time, McGuire told Baird that he knew about a murder that happened in Preble County in February. When Baird asked who did it, the appellant stated that he and Jerry Richardson had done it, and he was going to blame it all on Jerry.

A fellow inmate at the Preble County Jail, Jack Stapleton, testified that he had overheard a conversation between McGuire and another inmate, in which McGuire claimed that he had seen his brother-in-law rape and murder Joy. However, at one point, McGuire apparently slipped and implicated himself when telling the story. While describing the murder, Stapleton testified that McGuire "had his hand like this describing [sic], telling the guy how she was killed. And he said I--he goes I mean he. Stabbed her like this. Hit a bone. It didn't kill her. So he stabbed her again."

McGuire was later transferred to Madison Correctional Institute. An inmate there, Willie Reeves, testified that McGuire told him that while he was cleaning gutters, Joy showed up asking whether McGuire had any marijuana. McGuire offered to share some with her, and they left in his car. At one point McGuire asked whether she wanted to have sex, and she refused. McGuire then told Reeves he did it anyway. He then explained that because she was so pregnant, it was difficult to engage in sex with her, so instead he anally sodomized her. Joy then became "hysterical," which made McGuire nervous. He ended up killing Joy for fear that he would go to jail for raping a pregnant woman.

In June 1992, the Montgomery County Coroner's Office sent the vaginal, anal, and oral swabs collected from Joy's body, along with a cutting from her underpants, to Forensic Science Associates, a private laboratory, for DNA testing using the PCR technique.*fn1 A forensic scientist there compared DNA extracted from the samples with blood samples taken from Dennis McGuire, Jerry Richardson, Joy Stewart, and Joy's husband, Kenny Stewart. The scientist determined that McGuire could not be eliminated as a source of the sperm. Kenny Stewart and Richardson, however, could be eliminated, unless there were two sperm sources, e.g., multiple assailants. This was because the sperm analyzed contained a DQ Alpha type 3, 4, with a trace amount of DQ Alpha type 1.1, 2. McGuire's DNA was the DQ Alpha type 3, 4, whereas Richardson, Stewart, and the victim's DNA was the DQ Alpha type 1.1, 2. The forensic scientist testified that the trace amount of 1.1, 2 could have resulted either from Joy's epithelial cells taken in the swab, or from a secondary sperm source. The sperm DNA analyzed had characteristics that appear in about one in one hundred nineteen males in the white population.

On December 22, 1993, McGuire was indicted on one count of aggravated murder under R.C. 2903.01(B) with one felony-murder specification for rape under R.C. 2929.04(A)(7). McGuire was also indicted on two counts of rape (vaginal and anal) and one count of kidnapping.

On December 8, 1994, the jury returned a guilty verdict on the aggravated murder and specification charge. McGuire was also convicted of anal rape and kidnapping. After a sentencing hearing, the jury recommended a sentence of death for the aggravated murder. The trial judge sentenced the appellant to death, and the court of appeals affirmed.

Ohio v. McGuire, 80 Ohio St.3d 390, 391-94, 686 N.E.2d 1112 (1997).

B. State Court Proceedings

As noted above, on December 22, 1993, the Preble County, Ohio, grand jury indicted McGuire on one count of aggravated murder under Ohio Revised Code ("O.R.C.") § 2903.01(B), with one felony-murder specification for rape under O.R.C. § 2929.04(A)(7). (Doc. 17 ex. 1.)*fn2

The grand jury also indicted McGuire on two counts of rape (vaginal and anal) and one count of kidnapping. Id.

The guilt phase of the trial began on November 28, 1994, and the jury heard closing arguments on December 7, 1994. (T.p., Voir Dire at 1; id., Jury Trial at 953-1030.) After being instructed by the trial judge, the jury began its deliberations. (T.p., Jury Trial at 1058.) On December 8, 1994, the jury returned its verdict finding McGuire guilty of aggravated murder in violation of O.R.C. § 2903.01(B) and of committing aggravated murder while he was committing, attempting to commit, or fleeing immediately after committing rape and as the principal offender of the aggravated murder. (Id. at 1067-68.) The jury also found McGuire guilty of anal rape and kidnapping, but not guilty of vaginal rape. (Id. at 1068.)

The penalty phase of the trial commenced on December 12, 1994, and the jury began its deliberations on that same day. (T.p., Jury Trial Penalty Phase at 1, 141.) The jury completed its deliberations on December 13, 1994, and returned its verdict recommending that the sentence of death be imposed. (Id. at 159.)

On December 23, 1994, the court merged the kidnapping charge into the rape charge and sentenced McGuire to an indeterminate term of imprisonment of not less than ten (10) nor more than twenty-five (25) years on the conviction of rape. (T.p., Misc. Hearings at 23-24.) In addition, the court imposed upon McGuire the sentence of death. (Id. at 24-25.) On that same date, the court filed its written Sentencing Opinion in which it engaged in an independent weighing of the aggravating circumstances and mitigating factors. (Doc. 17 ex. 68.)

McGuire appealed to the Ohio Twelfth District Court of Appeals, and he raised eleven (11) assignments of error. Ohio v. McGuire, Case No. CA95-01-001, 1996 WL 174609 at *4 (Ohio App. 12th Dist. April 15, 1996). On April 15, 1996, the court of appeals affirmed McGuire's convictions for aggravated murder and rape as well as his death sentence. McGuire, 1996 WL 174609 at *14.

McGuire appealed to the Ohio Supreme Court raising eighteen (18) propositions of law. McGuire, 80 Ohio St.3d at 394. On December 10, 1997, the Ohio Supreme Court affirmed McGuire's conviction. Id. at 404. The court also independently reviewed McGuire's death sentence as required by O.R.C. § 2929.05(A) and affirmed the death sentence. Id. at 402-04.

McGuire filed a motion for reconsideration on December 22, 1997 which the Ohio Supreme Court denied. Ohio v. McGuire, 81 Ohio St.3d 1433, 689 N.E.2d 52 (1998) (Table). On October 5, 1998, the United States Supreme Court denied certiorari. McGuire v. Ohio, 525 U.S. 831 (1998).

During this period of time, specifically on October 21, 1996, McGuire filed his Petition to Vacate or Set Aside Sentence pursuant to O.R.C. § 2953.21. (Doc. 17 ex. 81.) In that Petition for post-conviction relief, McGuire raised eighteen (18) causes of action. (Id.) In a decision issued on May 15, 1997, the common pleas court granted the state's motion for summary judgment and denied McGuire's petition for post-conviction relief. (Doc. 17 ex. 92.)

McGuire appealed the denial of his post-conviction petition and raised ten (10) assignments of error. Ohio v. McGuire, Case No. CA97-06-015, 1998 WL 191415 (Ohio App. 12th Dist. Apr. 20, 1998). The Court of Appeals affirmed the trial court, id., and the Ohio Supreme Court did not allow the appeal, Ohio v. McGuire,83 Ohio St.3d 1428, 699 N.E.2d 945 (1998) (Table).

McGuire filed a second or successive post-conviction petition in the trial court on July 20, 2000. (Doc. 62, ex. A.) In that petition, McGuire brought a claim of ineffective assistance of trial counsel based on the failure to properly investigate and present mitigation evidence. (Id.) On September 29, 2000, the trial court denied McGuire's second petition for post-conviction relief. (Doc. 62, ex. C.)

McGuire appealed the denial of his second post-conviction relief petition raising two (2) assignments of error. Ohio v. McGuire, Case No. CA2000-10-011, 2001 WL 409424 at *4, 9 (Ohio App. 12th Dist. Apr. 23, 2001). The court of appeals affirmed the trial court's dismissal of McGuire's second petition for post-conviction relief. Id. at *10. The Ohio Supreme Court did not allow the appeal. Ohio v. McGuire, 93 Ohio St.3d 1411 (2001).

C. District Court Proceedings

McGuire filed his Notice of Intention to file his habeas Petition on January 27, 1999. (Doc. 2.) He filed his Petition on March 30, 1999. (Doc. 8.) On October 5, 1999, McGuire filed an Amended Petition raising twenty-one (21) Grounds for Relief. (Doc. 28.)

On August 16, 2000, Chief Magistrate Judge Merz granted McGuire's Motion for Appointment of Kathleen Burch as a neuropsychologist and his Motion for Appointment of Cellmark Diagnostics as a DNA expert. (Doc. 50.) In addition, the Chief Magistrate Judge granted in part and denied in part McGuire's Amended Motion for Discovery. (Id.) On March 14, 2002, Chief Magistrate Judge Merz granted McGuire's Motion to Expand the Record to include the state court pleadings with respect to McGuire's second or successive post-conviction petition. (Doc. 70; Doc. 62 and Exhibits thereto.) On February 3, 2003, Chief Magistrate Judge Merz denied McGuire's second Motion to Expand the Record and his Motion for Evidentiary Hearing. (Doc. 81.) On December 15, 2003, this Court overruled McGuire's Objections to the Chief Magistrate Judge's denials of his second Motion to Expand the Record and his Motion for Evidentiary Hearing. (Doc. 85.) Pursuant to the Court's December 16, 2003 Briefing Schedule, McGuire filed his Trial Brief (doc. 87) on March 15, 2004 and the Respondent filed her Brief (doc. 88) on April 14, 2004.

In his Merit Brief, McGuire abandoned Grounds for Relief 1, 4, 7, and 21(k). (Doc. 87.) He further abandoned Grounds 2, 6, 12, 13, 14, 15, 16, 19, 20, and the remainder of 21 in his Objections to the R&R. (Doc. 94.) Additionally, McGuire made no argument concerning Chief Magistrate Judge Merz's recommended disposition of his claims in Grounds 8, 17, and 18 in his Objections to the R&R or the Objections to the Supp. R&R. He has waived objections, therefore, as to these Grounds. Accordingly, the only remaining Grounds this Court must address are Grounds 3, 5, 9, 10, and 11. Chief Magistrate Judge Merz has recommended overruling Grounds for Relief 3, 5, 9, 10, and 11.

II. STANDARD FOR HABEAS CORPUS PETITIONS

McGuire's petition was filed after April 24, 1996 so it is subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Hamilton v. Morgan, 474 F.3d 854, 857 (6th Cir. 2007). A habeas petitioner must exhaust all remedies available to him in state court before filing a habeas petition. 28 U.S.C. § 2254(b)(1)(A). The AEDPA requires federal courts to respect any determination on the merits made by a state court unless it: (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. §§ 2254(d)(1)- (2); see also Williams v. Taylor, 529 U.S. 362, 402-03 (2000). In Williams, the Supreme Court further explained the meaning of § 2254(d)(1) as follows:

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 this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. 529 U.S. at 412-13. An unreasonable application is more than simply incorrect; it must be objectively unreasonable. Id. at 409, 411; see also Rompilla v. Beard, 545 U.S. 374, 380 (2005).

"Clearly established Federal law" under § 2254(d)(1) means "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). "Under [the] AEDPA, if there is no clearly established Federal law, as determined by the Supreme Court, that supports a habeas petitioner's legal argument, the argument must fail." Miskel v. Karnes, 397 F.3d 446, 453 (6th Cir. 2005) (internal citation omitted).

Pursuant to 28 U.S.C. § 2254(e)(1), a determination of a factual issue by a state court shall be presumed correct and the applicant shall have the burden of rebutting the presumption by clear and convincing evidence. McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir. 2004). This presumption does not apply to mixed questions of law and fact. Mitchell v. Mason, 325 F.3d 732, 738 (6th Cir. 2003). Instead, the "unreasonable application" prong of § 2254(d)(1) applies to mixed questions of law and fact. Id.

A federal court will not review a question of federal law decided by an Ohio court if the decision rests "on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). This is true whether the state law ground is substantive or procedural. Id. If a state law prisoner "has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Id. at 750.

III. ANALYSIS

Third Ground for Relief:

McGuire was not permitted to introduce evidence showing that the victim's husband had anal intercourse with her and thus the semen could have come [from] two sources rather than a single source. The DNA opinion that Mr. McGuire was the source of the semen depended on the assumption that there was only a single source for the semen. His conviction and sentence violate the Eighth and Fourteenth Amendments. (Doc. 28 at 43.)

A. State Court Proceedings

In this Ground for Relief, McGuire asserts that the trial court erred in not allowing him to present evidence in the form of a hearsay statement by David Lindloff, an investigator with the Preble County Coroner's Office, that the victim's husband, Kenny Stewart, told Lindloff that he had anal intercourse with the victim three or four days before her death. McGuire asserts that this evidence is relevant because, construed broadly in his favor, it suggests that Kenny Stewart, and not McGuire, might have had intercourse with and murdered his wife. McGuire also asserts that Kenny Stewart's statement might have cast doubt as to the reliability of the DNA evidence presented at trial.

To understand McGuire's argument, a review of the DNA testimony is appropriate. Jennifer Mihalovich, the State's criminologist, testified at trial that assuming there was a single semen source, the DNA results demonstrated that Kenny Stewart and Jerry Richardson, McGuire's brother-in-law, could be excluded as the sources of the semen taken from Joy Stewart's rectum, but that McGuire could not be excluded as the source. (T.p., Jury Trial at 529-32.) Mihalovich also testified that if there was more than one source of the semen in the rectal sample, then neither Richardson or Kenny Stewart could be eliminated as a potential donor of that second source of semen. (Id. at 532.) Likewise, the defense's expert, Dr. Dan Krane, testified that a semen sample taken from a victim's rectum is sensitive and easily contaminated, and that if Joy Stewart's sample had been contaminated, then Kenny Stewart could not be excluded as a source of the semen. (Id. at 815-21, 825.) However, Dr. Krane also testified that assuming that there was a single donor of the semen and that there was no contamination of the sample, the analyses described by Mihalovich were performed correctly. (Id. at 845.)

The trial court prohibited Lindloff from testifying as to what Kenny Stewart had said on the grounds that it was hearsay. (Id. at 890.) McGuire had contended then, and contends now, that the hearsay evidence was admissible as a statement against penal interest under Ohio R. Evid. 804(B)(3). The trial court rejected that contention. (Id. at 889-90.)

On appeal, the Ohio Supreme Court affirmed that the Kenny Stewart's statement was inadmissible hearsay. It also held that exclusion of the statement did not deny McGuire due process under the decision of Chambers v. Mississippi, 410 U.S. 284 (1973), because the statement was not highly reliable evidence. McGuire, 80 Ohio St.3d at 399-400.

B. Clearly Established Federal Law

McGuire asserts that the Kenny Stewart statement was admissible pursuant to Supreme Court precedent whether or not it was technically hearsay under the Ohio Rules of Evidence. In Chambers, a man named Gabe McDonald had admitted to three persons on separate occasions that he committed the murder with which Chambers was charged. 410 U.S. at 287. He later repudiated these confessions. Id. at 288. The trial court allowed Chambers' counsel to call McDonald and solicit the facts that he had confessed and then repudiated his confession. Id. 410 U.S. at 291. The trial court refused to allow defense counsel to question McDonald as if on cross-examination under the common law rule that one may not impeach one's own witness, the so-called vouching rule. Id. It also refused to allow defense counsel to call the three people to whom McDonald had confessed on the grounds their testimony about his confessions would have been hearsay. Id. at 292. The Supreme Court ruled that these decisions cumulatively denied Chambers the right to a fair opportunity to assert a defense. Id. at 294, 302.

Regarding the three corroborating witnesses who would have testified that McDonald made separate confessions to each of them, the Supreme Court stated:

The hearsay statements involved in this case were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability. First, each of McDonald's confessions was made spontaneously to a close acquaintance shortly after the murder had occurred.

Second, each one was corroborated by some other evidence in the case --McDonald's sworn confession, the testimony of an eyewitness to the shooting, the testimony that McDonald was seen with a gun immediately after the shooting, and proof of his prior ownership of a .22-caliber revolver and subsequent purchase of a new weapon. The sheer number of independent confessions provided additional corroboration for each. Third, whatever may be the parameters of the penal-interest rationale, each confession here was in a very real sense self-incriminatory and unquestionably against interest. McDonald stood to benefit nothing by disclosing his role in the shooting to any of his three friends and he must have been aware of the possibility that disclosure would lead to criminal prosecution. Indeed, after telling Turner of his involvement, he subsequently urged Turner not to "mess him up." Finally, if there was any question about the truthfulness of the extra-judicial statements, McDonald was present in the courtroom and was under oath. He could have been cross-examined by the State, and his demeanor and responses weighed by the jury.

Id. at 300-01 (emphasis added and citations omitted). The Supreme Court concluded that "[i]n these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Id. at 302. The Court stated that it was establishing "no new principles of constitutional law," but that the exclusion of McDonald's admissions to others, coupled with the refusal to permit Chambers to call McDonald, had deprived Chambers of a fair trial. Id. at 302-03.

More than 20 years later, in Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727 (2006), the Supreme Court again reiterated that evidentiary rules cannot be applied to defeat the ends of justice. "The Constitution . . . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote." 126 S.Ct. at 1732.

C. Analysis

This Court begins with an examination of whether the Kenny Stewart statement was hearsay under the Ohio Rule of Evidence. Ohio R. Evid. 804(B)(3) provides that a statement is not excluded by the hearsay rule if the declarant is unavailable to testify as a witness and it is "[a] statement that was at the time of its making . . . so far tended to subject the declarant to civil or criminal liability, . . . that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true." Ohio R. Evid. 804(B)(3). The Rule further specifies that a statement "tending to expose the declarant to criminal liability . . is not admissible unless corroborating circumstances clearly indicate the truthworthiness of the statement." Id. Applying the Rule, Kenny Stewart was not available to testify because he had died in the time between Stewart's murder and McGuire's trial. The relevant evidentiary issues, therefore, were whether the statement was against Kenny Stewart's penal interest at the time he made it and whether there were corroborating circumstances to establish the trustworthiness of the statement.

First, this Court agrees with the state courts that Kenny Stewart's statement was not necessarily against his penal interest when he made it. McGuire contends that Kenny Stewart knew he was a suspect when he admitted to having anal sex with his wife. Even if true, Kenny Stewart may have believed his statement tended to exonerate him because it provided an innocent explanation for why his semen might be found in his wife's body after she was murdered. Kenny Stewart's statement that he had intercourse with his wife three or four days before her murder is not, as McGuire seems to suggest, an admission that he had intercourse with her on the day of the murder. It certainly is not an admission that he raped her, and then stabbed her, on the day she died.*fn3

Likewise, this Court finds that there were not corroborating circumstances indicating the trustworthiness of the statement. McGuire cites to several facts that he posits corroborate Kenny Stewart's statement, but the Court cannot agree. He contends that there is evidence that suggests that (a) Stewart may have had the opportunity to murder his wife because his job as a truck driver did not require him to check in with other workers at the time of the murder; (b) the physical evidence at the scene was consistent with consensual intercourse; (c) a witness thought he saw Joy Stewart get into a brown pickup truck on the day of the murder and Stewart owned a brown pick-up truck; (d) there was evidence of discord in the Stewarts' marriage. However, none of these alleged facts about the day of the murder and the Stewarts' marriage is relevant to corroborate the hearsay statement that Kenny Stewart had anal sex with this wife three or four days before she was murdered. In sum, the Ohio court correctly concluded that the statement was inadmissible hearsay.

Moreover, this Court agrees with Chief Magistrate Judge Merz that the state court decision to disallow Kenny Stewart's hearsay statement was consistent with, and not an unreasonable application of, the clearly established law of Chambers. Chambers set forth four factors to consider when examining whether an out-of-court confession made by a person other than the defendant was reliable and admissible to help a defendant establish a defense. (1) Was the statement made spontaneously? (2) Was the statement corroborated by other evidence? (3) Was the statement self-incriminatory and against interest? (4) Was the declarant available to testify? 410 U.S. at 300-01.

These Chambers factors counsel against the admission of Kenny Stewart's statement. First, Kenny Stewart's statement was not spontaneous as it was made to a law enforcement official investigating the crime at a time when Kenny Stewart might have believed he was a suspect. Second, as discussed earlier, there is no significant evidence corroborating that Kenny Stewart had anal sex with his wife three or four days before the murder. Third, there was nothing inherently incriminating about Kenny Stewart's statement that he had anal sex with his wife several days before she died. Finally, Kenny Stewart was deceased at the time of trial and could not testify nor have his credibility judged by the jury. The Court concludes that the facts in this case are distinguishable in material respects from those in Chambers. The state court decision to exclude the evidence at the culpability and penalty phases was not an unreasonable application of federal law.

Turning next to the Holmes decision, the second Supreme Court precedent relied upon by McGuire, the Supreme Court reiterated in this 2006 case that state rules of evidence which act to exclude evidence from criminal trials cannot arbitrarily impede on a defendant's right to present a defense. 547 U.S. 319, 126 S.Ct. at 1731. This recent decision simply is not relevant to the issue at hand. The standard is whether the Ohio Supreme Court's decision was contrary to or an unreasonable application of the law as it existed at the time the state court rendered its decision. Carey v. Musladin,--- U.S. ----, ----, 127 S.Ct. 649, 653, (2006); Lockyer, 538 U.S. at 71-72. Holmes was not decided until many years after the state court proceedings were completed.

For all these reasons, the Court finds it was not an unreasonable application of federal law for the state court to have prohibited the Kenny Stewart hearsay statement during culpability and sentencing phases of trial. The Third Ground for Relief is DENIED.

Fifth Ground for Relief:

The jury was not instructed in a manner that allowed them to take into consideration Mr. McGuire's history, character, and background. Thus his sentence violates the Eighth and Fourteenth Amendments. (Doc. 28 at 54.)

A. Relevant State Law

O.R.C. § 2929.04(B)*fn4 provides that in a capital case the jury shall weigh the aggravating circumstances proved beyond a reasonable doubt against "the nature and circumstances of the offense, the history, character, and background of the offender," plus a list of specific factors when determining whether to recommend a sentence of death. Id. One of the specified factors is a catch-all provision: "Any other factors that are relevant to the issue of whether the offender should be sentenced to death." O.R.C. § 2929.04(B)(7).*fn5 The trial court, and the appellate courts that follow, cannot impose a sentence of death under Ohio law if the jury votes for life. See O.R.C. § 2929.03. However, if the jury recommends and the trial court imposes a sentence of death, then the appeals court and the Ohio Supreme Court are to review a sentence of death and "independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the case, and whether the sentence of death is appropriate." O.R.C. § 2929.05(A).

B. State Court Proceedings

At the sentencing phase of trial, defense counsel presented evidence about McGuire's history and character through the testimony of his mother, his half-sister, a licensed psychologist, and McGuire's own unsworn statements to the jury. Relevant to this Ground for Relief, the jury heard that McGuire started abusing marijuana at the age of nine years old, that he smoked marijuana with teenagers twice his age, and that he had a habit of smoking marijuana until the time he was incarcerated. The jury also heard about McGuire's unstable childhood, including that his mother endured several abusive relationships which McGuire witnessed, and that his father and older brother were largely absent from his life. Finally, they heard about McGuire's difficulties in school, including that he dropped out of school days after starting the tenth grade, that he could not read or write well, and that he stuttered as a child. (T.p., Jury Trial--Penalty Phase at 14-102.)

After defense counsel presented the mitigation testimony, the trial court instructed the jury as follows:

Now, you are going to proceed to weigh the aggravating circumstances which you have already found, against the mitigating factors which you will consider and find.

The aggravating circumstances which you have already found is as follows: The offense was committed while the Defendant was committing, or attempting to commit, or fleeing immediately after committing or attempting to commit rape and was the principal offender in the commissioner of the aggravated murder. Now, weighing against the aggravating circumstance will be the following mitigating factors:

1) Any residual or lingering doubts about the Defendant's guilt of the offense charged or an aggravating circumstance.

2) The Defendant's potential for rehabilitation.

3) The Defendant's ability to make a well-behaved and peaceful ...


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