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Michael Dean Scott v. Mark Houk

November 18, 2011

MICHAEL DEAN SCOTT, PETITIONER,
v.
MARK HOUK, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Judge John R. Adams

MEMORANDUM OF OPINION AND ORDER

[RESOLVING DOC. 12]

Petitioner, Michael Dean Scott ("Scott" or "Petitioner"), has filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. (Doc. 12). He challenges his convictions by a Stark County Jury and sentence of death. In addition to reviewing Scott's Petition, the Court has reviewed the Respondent, Mark Houk's ("Respondent"), Return of Writ (Doc. 15), the Petitioner's Traverse, (Doc. 47), and the Respondent's Sur-Reply, (Doc. 48).

For the following reasons, Scott's Petition for Writ of Habeas Corpus is DENIED. Furthermore, as will be explained below, Scott's motion to amend the petition is also DENIED.

I. Factual Background

On September 24, 1999, Scott was indicted by a Stark County Grand Jury, charging him with the following seven counts: (1) aggravated murder of Dallas Green; (2) aggravated murder of Ryan Stoffer with prior calculation and design; (3) aggravated murder of Ryan Stoffer while committing kidnapping and/or aggravated robbery; (4) aggravated robbery of Ryan Stoffer; (5) kidnapping of Ryan Stoffer; and (6)-(7) carrying a firearm while under disability. The two counts of aggravated murder each contained the following three death penalty specifications: (1) the aggravated murder occurred while committing or attempting to commit an aggravated robbery; (2) the aggravated murder occurred while committing or attempting to commit kidnapping; (3) the aggravated murder was part of a course of conduct involving the purposeful killing of two or more persons. Ohio Rev. Code 2929.04(A)(5) & (A)(7).

Scott pled guilty to two counts of possession of a firearm while under a disability prior to trial. A jury trial on the remaining counts began with jury selection on March 21, 2000. Return, Trial Tr., Vol. 2, at 1. The presentation of evidence began on March 27, 2000. Return, Trial Tr. Vol. 6, at 14. The facts as stated by the Ohio Supreme Court are as follows:

The circumstances that gave rise to these convictions began during the early morning hours of August 24, 1999, as Scott, then 22 years of age, and his friends Michael Wilson and Ryan Allen walked from the Canton Centre Mall toward the apartment of Amber Harsh, one of Scott's girlfriends. Dallas Green, who did not know Scott or his friends, drove past them, and Scott shouted "Hey," prompting Green to stop his vehicle. Green exited his vehicle and waited for the three to join him.

The four men began talking. Green told them "about the party he was going to at his girl friend's, stuff like that." As their conversation continued, Green started talking as if the others "were his girlfriends." He pointed at Scott, Allen, and Wilson, telling each, "[Y]ou are my bitch."

After talking for about a half hour, Green returned to his vehicle and got inside. Scott approached Green and asked for a ride. Green responded that "he couldn't do it." Scott then asked Green for the time. When Green turned his head to look at the clock on the dashboard, Scott pointed a .22 caliber handgun at him, said, "[N]ow who the bitch mother fucker," and then shot Green twice in the back and once in the left cheek.

Green drove off, but after traveling a few blocks, collided with a parked vehicle near the Old-Timer's Club on Tenth and Ross Streets. He later died at Mercy Medical Center from the gunshot wounds inflicted by Scott.

After shooting Green, Scott fled the scene with Wilson and Allen and went to Harsh's apartment. There, Scott emptied the shell casings from the handgun and threatened Wilson and Allen that he would shoot them if they told anybody about the shooting.

Allen and Wilson later explained that they had failed to report the crime because they feared for their safety.

Thereafter, Scott asked his friend Todd Jewell if he had ever heard of Dallas Green, and Jewell said that he had not. Jewell asked Scott if Green had been killed and Scott said, "Yeah." On a later occasion, as Jewell and Scott drove near the Old-Timer's Club, Scott pointed and stated, "[T]his is where I killed Dallas at."

In early September, Scott mentioned to Jewell that he wanted to test drive a vehicle and kill the owner. Despite Jewell's protest that Scott did not have to kill anyone in order to steal a car, Scott reiterated his idea during a later conversation with Jewell and another friend, Dustin Hennings. Hennings also told Scott that he could steal the car without killing anyone.

After these conversations, on Friday, September 10, 1999, Scott, one of his girlfriends, Kerry Vadasz, and Jewell saw a Ford Probe with a "for sale" sign in the window parked in the front yard of Ryan Stoffer's grandmother on Dryden Avenue in Canton, Ohio. Scott wrote down the telephone number and told Jewell that he wanted to call the owner, take the car for a test drive, have Vadasz drive, and shoot the owner from the back seat. Scott then called the number and arranged to test drive the vehicle the next day. As Jewell drove Scott to test drive the vehicle, Scott again mentioned that he wanted to follow through with his plan to kill the owner and steal the car. Scott asked Jewell to drive the Probe, but he declined, stating that he did not know how to operate a standard transmission vehicle.

Nevertheless, Scott and Jewell met Stoffer, who took them for a test drive that afternoon. Scott then told Stoffer that he wanted his girlfriend to look at the car and that he would call him on Sunday to make arrangements.

The following Sunday afternoon, Vadasz called Stoffer from the home of Scott's brother Anthony Scott and arranged to meet Stoffer at Stoffer's grandmother's house in Canton, Ohio. Jewell then drove Scott and Vadasz to Canton but did not accompany them on the test drive. Brenda Stoffer, Ryan Stoffer's mother, watched her son, Scott, and Vadasz get into the car, thinking that they would return after a short test drive.

Vadasz drove the Probe, Stoffer sat in the front passenger seat, and Scott rode in the back seat. She drove the car for the next hour and a half. As time passed, Stoffer provided directions on how to return to his grandmother's house, but ostensibly because Vadasz had little experience with driving a standard transmission, Scott told her to keep driving until she got used to it.

Scott eventually removed a .22 caliber handgun from his pants pocket and placed it on the seat. According to his confession to the police, "[a]fter about ten minutes, [he] just lifted [the gun] up and sat it back behind the head rest of [Stoffer's] chair. And just left it sittin' there for like two more minutes." Scott then fired six shots into the back of Stoffer's head.

Afterward, Scott and Vadasz dumped Stoffer's body in a secluded, wooded area and then drove to a friend's home to clean up. They placed plastic trash bags on the front passenger seat so that Vadasz would not get blood on her, and then Scott drove to her home in Akron, where they parked Stoffer's car in her garage. Later that evening, Scott telephoned Jewell and reported killing Stoffer and dumping his body in the woods. According to Jewell, Scott said that "he shot him once, and afterwards he kind of freaked out and he put the other five bullets in the gun into his head." Scott then asked Jewell to "help him bury the body," but Jewell refused.

Later that evening, Scott and Vadasz returned to Canton in Stoffer's Probe. While there, Scott talked about the shooting with Jewell and Hennings. Hennings remembered Scott saying that "he just put the gun behind the boy's head and pulled the trigger once, and he said then he emptied the whole clip in the same hole in the back of his head through the padding of the seat." Scott also mentioned that he had left the gun at Vadasz's home in Akron. Scott and Vadasz eventually returned to Akron, and on Monday morning, Scott drove the Probe to work.

When Stoffer did not return from the test drive Sunday evening, his mother called the police. Her husband had informed her that the people who took the test drive had called and said that "they don't want the car; they don't have the money." The Stoffer family heard nothing further about Stoffer until the following Wednesday when the sheriff's department informed them that his body had been found.

On Monday, the day after Stoffer's murder, Jewell telephoned Scott and advised him that he had seen a news report about Stoffer's disappearance on television. In response, Scott stated, "I am going to get rid of this thing, I'll call you back." Scott and Vadasz then cut the bloody seatbelt out of the Probe and threw it into a sewer across the street from Vadasz's apartment. They also put on latex gloves and tried to "wipe everything off" the Probe.

Scott then drove the Probe toward Hartville and "ditched the car" near a vacant building. Before leaving, he squirted lighter fluid on the front seat, back seat, and dashboard but could not set the car ablaze, as neither he nor Vadasz had matches. The two then walked back to Akron.

On Tuesday, September 14, the police obtained Stoffer's telephone records showing that on the day of the test drive, a telephone call had been made to the Stoffer home from Anthony Scott's residence. When the police contacted him, Anthony reported that Scott and Vadasz had used his phone on that date. Anthony later told Scott what he had told the police, and Scott replied that "he was thinking about killing [Anthony] and [his] girlfriend and [his] kids."

On the same day, the police received an anonymous telephone call linking Scott to Green's murder. Until they received that call, Scott had not been a suspect in that murder.

The next day, a representative from the Stark County Sheriff's Office and the Canton Police Department arrested Scott. Vadasz cooperated with law enforcement by leading them to Stoffer's body and his car and by consenting to a search of her home. During that search, police recovered a .22-caliber Smith & Wesson revolver, a box of .22-caliber ammunition, and bloodstained clothing belonging to Scott. They also recovered the seatbelt from the Probe that had been thrown into the sewer.

Police Lieutenant Michael Firth interviewed Scott about Stoffer's murder. Scott provided a detailed confession consistent with the facts outlined herein. Detectives then asked him about Green's murder. He initially denied any involvement but then blurted out, "[O]kay, I did it," and provided a detailed account of Green's murder. State v. Scott, 101 Ohio St.3d 31, 32-35 (2004).

Jury selection began on March 21, 2000. Return, Trial Tr., Vol. 2, at 1. At the conclusion of the proceedings, the jury convicted Scott on all counts and specifications. Id. at Apx. Vol. 7, 147-61. The penalty phase of trial began on April 4, 2000. Scott presented testimony regarding his neglectful mother, placement into a foster home, and subsequent adoption. Dr. Robert Smith also testified about Scott's psychological ailments. Further facts will be set forth as necessary to resolve the claims raised in the Petition.

II. Procedural History

A. Direct Appeal

Scott filed a timely notice of appeal to the Ohio Supreme Court on May 26, 2000. Return, Apx. Vol. 8, at 4-6. In a brief filed November 16, 2000, Scott raised the following ten propositions of law:

1. The capital specifications convictions for the charge of aggravated murder are against the manifest weight of the evidence. The evidence was insufficient as a matter of law to support appellant's capital convictions and should be reversed.

2. It is error for a trial court to impose a death sentence when the death penalty law as currently applied in Ohio violates R.C. 2929.05(A) by requiring appellate courts and the Supreme Court, in conducting their R.C. 2929.04(A) review of "similar cases" for proportionality, to examine only those cases in which a death sentence was imposed and ignore those in which a life sentence with parole eligibility after twenty full years or life with a parole eligibility after thirty full years was imposed. The current method also violates the rights to a fair trial and due process, results in cruel and unusual punishment, and implicates others of appellant's protected rights as well, all as set forth in the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and in Sections 1, 2, 5, 9, 10, 16 and 20, Article I of the Ohio Constitution.

3. It is prejudicial error for a trial court to sentence Defendant to the death penalty, when, based upon the law and the record of this case, the sentence of death herein is inappropriate and is disproportionate to the penalty imposed in similar cases, in violation of Defendant's rights as guaranteed to him by the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution and Sections 5, 9, 10, and 16 of Article One of the Ohio Constitution.

4. The proportionality review that this court must conduct in the present capital case pursuant to Ohio Revised Code 2929.05 is fatally flawed and therefore the present death sentence must be vacated pursuant to the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, Sections 5 and 10, Article I of the Ohio Constitution and Ohio Revised Code 2929.05, in violation of Defendant's rights as guaranteed to him by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 5, 9, 10 and 16 of Article One of the Ohio Constitution.

5. R.C. 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05 as read together and as applied in this case violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16 of Article I of the Ohio Constitution.

6. The due process clause is violated by a jury charge which permits a criminal conviction on proof less than beyond a reasonable doubt.

7. R.C. 2929.04(B)(7) is unconstitutionally vague and may be understood by jurors as reasons for imposing the death sentence.

8. R.C. 2941.25 is violated when the court imposes sentences consecutive to a death penalty sentence.

9. The Appellant's right to effective assistance of counsel is prejudiced by counsel's defective performance.

10. Spectator's misconduct that prejudices Appellant and creates undue victim sympathy with the jury is cause for reversal.

Return, Apx. Vol. 8, at 47-9. The State filed its merit brief on February 5, 2001. Return, Apx. Vol. 8, at 217. The Ohio Supreme Court affirmed Scott's convictions and sentences in an opinion issued January 14, 2004. State v. Scott, 101 Ohio St.3d 31 (2004).*fn1 Scott filed a Petition for a Writ of Certiorari with the Unites States Supreme Court, but that Court denied the Petition on June 14, 2004. Scott v. Ohio, 542 U.S. 907 (2004).

B. Post-Conviction Proceedings

Scott also filed a petition for post-conviction relief with the Stark County Court of Common Pleas. He filed an amended petition on February 5, 2001, raising the following seven grounds for relief:*fn2

1. Petitioner Scott's convictions and sentences are void and/or voidable because pretrial publicity denied Scott his right to a fair and impartial jury as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, Article I, Sections 5 and 10 of the Ohio Constitution. Irvin v. Dowd, 366 U.S. 717 (1961).

2. Petitioner Scott's convictions and sentences are void and/or voidable because he was denied the effective assistance of counsel when his trial attorneys failed to file a motion for a change of venue, thus depriving Scott of his rights as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution. Strickland v. Washington, 466 U.S. 668 (1984).

3. Petitioner Scott's convictions and sentences are void and/or voidable because victim impact evidence in the form of family and media demands for the death sentence contaminated the jury, thus denying Scott the right to have the sentencing decision made by the jury and judge as guaranteed by the Eighth Amendment to the United States Constitution, and Article I, Section 10 of the Ohio Constitution.

4. Petitioner Scott's convictions and/or sentences are void and/or voidable because he was denied the effective assistance of counsel at the penalty phase of his capital trial as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16 of the Ohio Constitution. Strickland v. Washington, 466 U.S. 668 (1984).

5. Petitioner's death sentence is void or voidable because the trial court excluded relevant testimony from his mitigation hearing, thereby violating Petitioner's rights under the Eighth, Ninth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution.

6. The judgment and sentence against Petitioner are void or voidable because the death penalty as administered by lethal injection in the State of Ohio violates his constitutional rights to protection from cruel and unusual punishment and to due process of law. U.S. Const. Amends. VIII, IX, XIV; Ohio Const. Art. I §§ 9, 10, 16; Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998)(five justices holding that the Due Process Clause protects the "life" interest at issue in capital cases).

7. Petitioner Scott's judgment and sentence are void or voidable because, assuming arguendo that none of the Grounds for Relief in his Post-Conviction Petition individually warrant the relief sought from this court, the cumulative effects of the errors and omissions as presented in the Petition's foregoing paragraphs have been prejudicial and have denied Petitioner his rights as secured by the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

Return, Apx. Vol. 9, at 29-47. The post-conviction court denied relief on December 21, 2004. State v. Scott, No. 1999-CR-1154, slip op. (Ohio Ct. Common Pleas Dec. 21, 2004); Return, Apx. Vol. 9, at 467-9.

Scott filed a notice of appeal to the Fifth District Court of Appeals on January 19, 2005. In a brief filed thereafter, he raised the following six assignments of error:

1. The trial court erred by adopting verbatim the prosecution's response to the post-conviction petition and failing to make its own findings of fact and conclusions of law.

2. The trial court erred in denying Scott's motion to strike the prosecutor's response when that response was filed over two years past the statutory and court-set deadlines.

3. The trial court erred in granting the State summary judgment when there were genuinely disputed issues of material fact and summary judgment was inappropriate as a matter of law.

4. The trial court erred when it denied Scott's post-conviction petition without first affording him the opportunity to conduct discovery.

5. The trial court erred by applying the doctrine of res judicata to bar Scott's grounds for relief one, five, and six.

6. The trial court erred in dismissing Scott's post-conviction petition when he presented sufficient operative facts to merit relief or, at minimum, an evidentiary hearing.

Return, Apx. Vol. 10, at 19. The Fifth District Court of Appeals affirmed the trial court's decision on January 23, 2006. Return, Apx. Vol. 10, at 420-50. Scott filed a memorandum in support of jurisdiction with the Ohio Supreme Court, but that court declined to accept jurisdiction on June 21, 2006. Return, Apx. Vol. 11, at 100.

C. Murnahan Appeal*fn3

Scott filed a timely application to reopen with the Ohio Supreme Court on April 13, 2004. He alleged that his appellate counsel had been ineffective in nine instances, as alleged below:

1. A capital defendant has a remedy under the Eighth and Fourteenth Amendments when a court fails to apply the required narrowing constriction to a "course-of-conduct" aggravating circumstance specification in a capital case. U.S. Const. Amends. V, VI, XIV; Ohio Const. Art. I §§ 1, 2, 5, 10, 16.

2. It is prejudicial error for a trial court to deny a motion to sever pursuant to Ohio R. Crim. P. 14 when the defendant has met the burden of proof, thus prejudicing Appellant in violation of his constitutional protections. U.S. Const. Amends. V, VIII, XIV; Ohio Const. Art. I §§ 1, 2, 5, 10, 16.

3. Trial counsel rendered prejudicially ineffective assistance when they conceded guilt in the opening statement of Appellant's capital trial without the consent of the Appellant thereby violating his constitutional rights. U.S. Const. Amends. V, VI, VIX; Ohio Const. Art. 1 §§ 1, 5, 10, 16, 20.

4. Trial counsel rendered prejudicially ineffective assistance when they failed to move for mistrial after the victim's family wore inappropriate clothing and made outbursts in the courtroom in the presence of the jury. U.S. Const. Amends. V, VI, XIV; Ohio Const. Art. 1 §§ 1, 10, 16.

5. It was prejudicial error for the trial court to exclude relevant mitigating evidence at the mitigation phase of Appellant's capital trial. U.S. Const. Amends. V, VIII, XIV; Ohio Const. Art. I §§ 1, 2, 5, 10, 16.

6. Trial counsel rendered prejudicially ineffective assistance by not proffering improperly excluded mitigating evidence at the mitigation phase of his capital trial. U.S. Const. Amends. V, VI, XIV; Ohio Const. Art. 1 §§1, 2, 5, 10, 16.

7. Trial counsel rendered prejudicially ineffective assistance by erroneously advising Appellant regarding his unsworn statement at the mitigation phase of his capital trial. U.S. Const. Amends. V, VI, VIII, XIV; Ohio Const. Art. 1 §§ 1, 2, 5, 10, 16.

8. Trial counsel rendered prejudicially ineffective assistance by not challenging for cause a juror who had worked with the victim's family thereby depriving Appellant of a fair and impartial trial. U.S. Const. Amends. V, VI, XIV; Ohio Const. Art. I §§ 1, 2, 5, 10, 16.

9. It is prejudicial error for a trial court not to dismiss the alternate jurors when the jury retired to consider its verdict, and the court thereby violated Appellant's right to a fair trial, due process of law, and Crim. R. 24(F). U.S. Const. Amends. V, VIII, XIV; Ohio Const. Art. I §§ 1, 2, 5, 10, 16.

Return, Apx. Vol. 8, at 323-32. On July 14, 2004, the Ohio Supreme Court denied Scott's application to reopen. Return, Apx. Vol. 8, at 338.

III. Federal Habeas Corpus Proceeding

Scott filed a Notice of Intent to File a Habeas Corpus Petition on March 15, 2007. (Doc. 1). Concurrently, he filed a Motion for Appointment of Counsel, (Doc. 2), which the Court granted on April 13, 2007, appointing David L. Doughten and Jeffrey J. Helmick to represent Scott. (Doc. 4). He filed a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 on June 11, 2007. (Doc. 12). The Respondent thereafter filed a Return of Writ, (Doc. 15), to which Scott filed a Traverse on September 24, 2007. (Doc. 47). The Respondent thereafter filed a Sur-Reply, rendering this matter ripe for disposition. (Doc. 48).

In the Petition, Scott raises the following 15 grounds for relief:*fn4

1. Petitioner Scott's convictions and sentences are void and/or voidable because pretrial publicity denied Scott his right to a fair and impartial jury as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Irvin v. Dowd, 366 U.S. 717 (1961).

2. Petitioner Scott's convictions and sentences are void and/or voidable because victim impact evidence in the form of family and media demands for the death sentence contaminated the jury, thus denying Scott the right to have the sentencing decision made by the jury and as guaranteed by the Eighth Amendment to the United States Constitution.

3. Petitioner's rights were violated by the joinder of two unrelated murders: one count of murder for the killing of Dallas Green and two counts of aggravated murder for the killing of Ryan Stoffer. Trial counsel filed a timely motion to sever these counts and provided information sufficient to demonstrate the prejudice to Petitioner. The trial court denied Petitioner's motion, and this joinder and denial of severance cause him prejudice and violated his rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.

4. Petitioner Scott's conviction and/or sentence are void or voidable because he was inappropriately charged, convicted and sentenced under a "court-of-conduct" aggravator arising from the deaths of Ryan Stoffer and Dallas Green. Eligibility for the death penalty in Ohio, and any other state, requires that the class of offenses be sufficiently narrowed. In this case, application of the "course-of-conduct" aggravator was improper and violated Petitioner's rights under the Eighth and Fourteenth Amendments to the United States Constitution.

5. The failure of defense counsel to adequately represent the Petitioner at the culpability phase or guilt-innocence determination phase of trial resulted in a sentence of death that does not comply with the minimum constitutional standards of reliability required for a conviction or the imposition of a death sentence, thus depriving Scott of his rights as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution. Strickland v. Washington, 466 U.S. 668 (1984).

6. The trial court committed prejudicial error by failing to dismiss the alternate jurors as mandated by Ohio law, in violation of Petitioner's rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution. Ohio Crim. R. 24(F) mandates that alternate jurors be dismissed at the commencement of trial phase deliberations. Ohio v. Gross, 97 Ohio St.3d 121 (2002). Dismissal of jurors under the Ohio criminal rules protects the right to a fair trial and to due process of law.

7. Petitioner Scott's convictions and/or sentences are void and/or voidable because he was denied the effective assistance of counsel at the penalty phase of his capital trial as guaranteed by the Fifth, Sixth, Eight, Ninth and Fourteenth Amendments to the United States Constitution. Strickland v. Washington, 466 U.S. 668 (1984).

8. Petitioner's death sentence is void or voidable because the trial court excluded relevant testimony from his mitigation hearing, thereby violating Petitioner's rights under the Eighth, Ninth and Fourteenth Amendments to the United States Constitution.

9. The definition of "reasonable doubt" provided to the jury during Scott's capital murder trial violated his due process rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

10. Petitioner Scott was denied effective assistance of appellate counsel. Once a state has provided the right to appeal to a criminal defendant, that defendant is afforded the right to effective assistance of appellate counsel. Evitts v. Lucey, 469 U.S. 587 (1985). This right was effectuated in Ohio through the rule of Ohio v. Murnahan, 63 Ohio St.3d 60 (1992), which established that Ohio recognizes that the right to effective assistance of counsel continues through the first appeal of right.

11. The Petitioner was charged with capital offenses in Counts Two and Three of his Indictment, Aggravated Murder with prior calculation and design in violation of O.R.C. 2929.01(A) and felony/murder in violation of O.R.C. 2929.07(A)(7). Specification One alleged the homicide was committed during the commission of an Aggravated Robbery in violation of O.R.C. 2911.01 and Specification Two charged the homicide during the commission of Kidnapping, O.R.C. 2905.01.

12. Appellate review plays an essential role in eliminating the systemic arbitrariness and capriciousness which infected death penalty schemes invalidated by Furman v. Georgia, 408 U.S. 238 (1972). The teaching of Furman was that a state may not leave the decision of whether a defendant lives or dies to the unfettered discretion of the jury because such a scheme inevitably results in death sentences that are "wantonly and . . . freakishly imposed" and "are cruel and unusual in the same way that being struck by lightning is cruel and unusual." Id. at 309-10 (Stewart, J. concurring).

Therefore, some form of meaningful appellate review is required to assess the sentencer's imposition of the death penalty.

13. The effect of cumulative error during the trial deprived Scott of a fair trial. Pursuant to the cumulative error doctrine, the existence of multiple errors, which may not individually require reversal, may violate a defendant's right to a fair trial.

14. The judgment and sentence against Petitioner are void or voidable because the death penalty as administered by lethal injection in the State of Ohio violates his constitutional rights to protection from cruel and unusual punishment and to due process of law. U.S. Const. Amends. VIII, IX, XIV; Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998)(five justices holding that the Due Process Clause protects the "life" interest at issue in capital cases.)

15. Petitioner Scott challenges the various statutes used to convict and sentence him as violative of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.

See Petition.

IV. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"), which amended 28 U.S.C. § 2254, was signed into law on April 24, 1996. In Lindh v. Murphy, 521 U.S. 320, 336 (1997), the United States Supreme Court held that the provisions of the AEDPA apply to habeas corpus petitions filed after that effective date. See also Woodford v. Garceau, 538 U.S. 202, 210 (2003); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999)("It is now well settled that AEDPA applies to all habeas petitions filed on or after its April 24, 1996 effective date."). Because Scott's petition was filed on June 11, 2007, the AEDPA governs this Court's consideration of his Petition.

The AEDPA was enacted "to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases, and 'to further the principles of comity, finality, and federalism.'" Woodford, 538 U.S. at 206 (quoting Williams v. Taylor, 529 U.S. 362, 436 (2000)). The requirements of the AEDPA "create an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings." Uttecht v. Brown, 551 U.S.1, 10 (2007)(citations omitted). Section 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --

(1) 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; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). This legal standard establishes a multi-faceted analysis involving a consideration of both the state court's statement and/or application of federal law and its finding of facts.

With respect to Section 2254(d)(1), "clearly established federal law" refers to the holdings, as opposed to dicta, of the United States Supreme Court's decisions as of the time of the relevant state-court decision. Williams, 529 U.S. at 412; Barnes v. Elo, 231 F.3d 1025, 1028 (6th Cir. 2000). The "contrary to" and "unreasonable application" clauses of Section 2254(d)(1) are independent tests and must be analyzed separately. Williams, 529 U.S. at 412-13; Hill v. Hofbauer, 337 F.3d 706, 711 (6th Cir. 2003). A state court decision is "contrary to" federal law only "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 has on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13.

Even if the state court identifies the "correct governing legal principle," a federal habeas court may still grant the petition if the state court makes an "unreasonable application" of "that principle to the facts of the particular state prisoner's case." Williams, 529 U.S. at 413. A state-court decision also involves an unreasonable application if it unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Id. at 407; Hill, 337 F.3d at 711. As the Supreme Court recently advised, "[t]he question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable--a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007)(citing Williams, 529 U.S. at 410). The reasonableness of the application of a particular legal principle depends in part on the specificity of the relevant rule. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). While the application of specific rules may be plainly correct or incorrect, courts may have more leeway in reasonably applying more general rules in the context of a particular case. Id.

As to the "unreasonable determination of the facts" clause in Section 2254(d)(2), the Supreme Court applied that Section of 2254(d) in Wiggins v. Smith, 539 U.S. 510 (2003). In that case, the Court noted that a "clear factual error," such as making factual findings regarding the contents of social service records contrary to "clear and convincing evidence" presented by the defendant, constitutes an "unreasonable determination of the facts in light of the evidence presented." Id. at 528-29. In other words, a state court's determination of facts is unreasonable if its findings conflict with clear and convincing evidence to the contrary. This analysis mirrors the "presumption of correctness" afforded factual determinations made by a state court which can only be overcome by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Mitchell v. Mason, 325 F.3d 732, 737-38 (6th Cir. 2003); Clark v. O'Dea, 257 F.3d 498, 506 (6th Cir. 2001)("regardless of whether we would reach a different conclusion were we reviewing the case de novo, the findings of the state court must be upheld unless there is clear and convincing evidence to the contrary."). This presumption only applies to basic, primary facts, and not to mixed questions of law and fact. See Mason, 325 F.3d at 737-38 (holding ineffective assistance of counsel is mixed question of law and fact to which the unreasonable application prong of Section 2254(d)(1) applies).

By its express terms, however, Section 2254(d)'s constrained standard of review only applies to claims that were adjudicated on the merits in the state court proceeding. Clinkscale v. Carter, 375 F.3d 430, 436 (6th Cir. 2004). When a state court does not assess the merits of a petitioner's habeas claim, the deference due under the AEDPA does not apply. In such a case, the habeas court is not limited to deciding whether that court's decision was contrary to or involved an unreasonable application of clearly established federal law, but rather conducts a de novo review of the claim. Morales v. Mitchell, 507 F.3d 916, 930 (6th Cir. 2007)(citations omitted); Newton v. Million, 349 F.3d 873, 878 (6th Cir. 2003); Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir. 2003). If the state court conducts a harmless error analysis but does not indicate whether its finding is based on state or federal constitutional law, however, a habeas court, while conducting an independent review of the facts and applicable law, must nonetheless determine "whether the state court result is contrary to or unreasonably applies clearly established federal law." Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir. 2005)(citing Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000)).

V. Exhaustion and Procedural Default

A. Exhaustion

A state prisoner must exhaust his state remedies before bringing his claim in a federal habeas corpus proceeding. 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509 (1982). Exhaustion is fulfilled once a state supreme court provides a convicted defendant an opportunity to review his or her claims on the merits. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). A habeas petitioner satisfies the exhaustion requirement when the highest court in the state in which the petitioner has been convicted has had a full and fair opportunity to rule on the claims. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). If under state law there remains a remedy that a petitioner has not yet pursued, exhaustion has not occurred and the federal habeas court cannot entertain the merits of the claim. Rust, 17 F.3d at 160.*fn5

A petitioner "cannot obtain federal habeas relief under 28 U.S.C. § 2254 unless he has completely exhausted his available state court remedies to the state's highest court." Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001)(quoting Coleman v. Mitchell, 244 F.3d 533, 538 (6th Cir. 2001))(internal quotation marks omitted). Rather than dismiss certain claims the court deems unexhausted, however, a habeas court need not wait for exhaustion if it determines that a return to state court would be futile. Lott v. Coyle, 261 F.3d 594, 608 (6th Cir. 2001). In circumstances where the petitioner has failed to present a claim in state court, a habeas court may deem that claim procedurally defaulted because the Ohio state courts would no longer entertain the claim. Buell, 274 F.3d at 349. To obtain a merit review of the claim, the petitioner must demonstrate cause and prejudice to excuse his failure to raise the ...


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