Opinion
Case No. C-3-94-459
October 16, 2002
REPORT AND RECOMMENDATIONS ON PETITIONER'S MOTION FOR CERTIFICATE OF APPEALABILITY
This is a habeas corpus case brought pursuant to 28 U.S.C. § 2254 by Petitioner Rhett Gilbert Depew. Mr. Depew seeks relief from his conviction on three counts of aggravated murder with capital specifications and consequent sentence of death in the Butler County Common Pleas Court. Chief Judge Rice has granted relief on Petitioner's First Claim and denied the remainder. Depew v. Anderson, 104 F. Supp.2d 879 (S.D.Ohio 2000). Petitioner has appealed and now seeks a certificate of appealability on this Court's having recognized a presumption of correctness as to the state court's factual findings and on the following other claims made in the Petition:
Respondent has also appealed, but does not require any certification from the Court to do so.
Chief Judge Rice granted a certificate of probable cause, following the Sixth Circuit's decision in Norris v. Schotten, 146 F.3d 314 (6th Cir.), cert. denied, 119 S.Ct. 348 (1998), that the AEDPA did not apply to cases filed before but appealed after its effective date. The supervening decision in Slack v. McDaniel, 120 S.Ct. 1595(2000), requires instead that Petitioner obtain a certificate of appealability.
Second Ground for Relief: Petitioner's statement was improperly introduced against him because it was obtained in violation of his rights under Miranda v. Arizona, it was obtained in violation his right to counsel, and the statement was not voluntarily obtained
1. Petitioner's privilege against self-incrimination and his right to counsel as guaranteed by the Fifth and Sixth Amendments to the United States Constitution were violated.
2. Petitioner's confession was obtained in violation of his right to the assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution.
3. Petitioner's confession was involuntary and its admission was therefore in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution.
Third Ground for Relief: The death sentence imposed upon Petitioner is unreliable because the jury did not have a proper understanding of its role in the sentencing process and of the standards that it was to apply
1. The jury was told by the court and prosecutor that its death penalty verdict was only a "recommendation" and not binding on the trial judge, which violated Petitioner's rights under the Eighth and Fourteenth Amendments to the United States Constitution.
2. The jury was told about mitigating factors which Petitioner failed to raise, which violated Petitioner's rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
3. The judge instructed the jury not to be influenced by any consideration of sympathy, depriving Petitioner of his right to a fair sentencing hearing and privilege against cruel and unusual punishment under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
Fourth Ground for Relief: The death sentence imposed on Petitioner is unreliable because the government was permitted to exclude jurors for cause without having to demonstrate that they could not follow the court's instructions on the law denying Petitioner his right to trial by jury guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
Seventh Ground for Relief: The death sentence imposed on Petitioner is unreliable because the trial judge did not exercise neutral judicial authority in resolving the motion to suppress violating Petitioner's rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.
Eighth Ground for Relief: Petitioner's right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and to effective assistance as guaranteed by the Fourteenth Amendment to the United States Constitution was violated because his counsel did not have adequate assistance from the psychologist and because his counsel did not properly object to and raise issues at trial and on appeal.
Ninth Ground for Relief: The review of the death sentence imposed on Petitioner is unreliable because of the failure to provide for a verbatim transcript of the proceedings in the trial court, thus violating Petitioner's rights to a fair process and Petitioner's right to counsel guaranteed by the Fourteenth and Sixth Amendments to the United States Constitution.
Tenth Ground for Relief: The death sentence imposed on Petitioner is unreliable because the government introduced gruesome photographs in violation of Petitioner's rights guaranteed by the Fourteenth Amendment to the United States Constitution.
Eleventh Ground for Relief: The death sentence imposed on Petitioner is unreliable because the conviction is based upon testimony obtained in violation of Petitioner's privileged communications with his spouse in violation of the Fourteenth Amendment to the United States Constitution.
Twelfth Ground for Relief: The death sentence imposed on Petitioner is unreliable and inappropriate due to numerous errors that occurred throughout the trial, including an erroneous mitigation weighing process, in violation of Petitioner's rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
Thirteenth Ground for Relief: Ohio's statutory provisions governing its capital punishment scheme violate the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. These provisions are unconstitutional on their face and as applied to Petitioner.
Petitioner's Motion for Certificate of Appealability, Doc. #153.
28 U.S.C. § 2253 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.L. No 104-132, 110 Stat. 1214) (the "AEDPA"), provides in pertinent part:
(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).
A person in custody upon a state conviction seeking to appeal an adverse ruling on a petition for writ of habeas corpus in the district court must obtain a certificate of appealability before proceeding. 28 U.S.C. § 2253; Fed.R.App.P. 22. To obtain a certificate of appealability, a petitioner must show at least that "jurists of reason would find it debatable whether the petition states a valid claim of denial of a constitutional right." Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000) If the district court dismisses the petition on procedural grounds without reaching the constitutional questions, the petitioner must also show that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 120 S.Ct. at 1604. The procedural issue should be decided first so as to avoid unnecessary constitutional rulings. Slack, 120 S.Ct. at 1604, citing Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). The first part of this test is equivalent to making a substantial showing of the denial of a constitutional right, including showing that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further, Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000), quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).
The standard is higher than the absence of frivolity required to permit an appeal to proceed in forma pauperis. Id. at 893.
Obviously the petitioner need not show that he should prevail on the merits . . . Rather, he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are `adequate to deserve encouragement to proceed further.'
Id. n. 4.
District courts have the power to issue certificates of appealability under the AEDPA in § 2254 cases. Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063 (6th Cir. 1997); Hunter v. United States, 101 F.3d 1565 (11th Cir. 1996) (en banc). Slack v. McDaniel does not speak to this point.
This Report will analyze the claims on which Petitioner seeks a certificate of appealability in the order in which Petitioner presents them.
Presumption of Correctness
Petitioner argued and continues to assert that none of the factual findings of the state trial court are entitled to deference under 28 U.S.C. § 2254(d) [pre-AEDPA] because Judge Moser was not neutral and unbiased, relying heavily on his public comments on the Gill case in which Judge Moser and two other Common Pleas Judges imposed life imprisonment instead of the death penalty. In rejecting that argument, the Magistrate Judge wrote:
In any event, making public comment on a case, whether appropriate or inappropriate, is not the same as being biased or prejudiced. Judge Moser's comments on the Gill case do not display any attitude toward the issues in this case. Judge Moser's comment on the final sentence in this case is, if anything, sympathetic to Mr. Depew's situation.
Report and Recommendations, Doc. #125, pp. 26-27. Chief Judge Rice adopted the Report and Recommendations on this point and added that it would require a "quantum leap" of logic to infer from Judge Moser's comments on one capital case that he had corruptly "[gone] into the tank" on this subsequent case. 104 F. Supp.2d at 888. He also noted that adopting Petitioner's position would establish a bright-line rule that any time a judge makes a controversial comment in a highly-publicized case, his subsequent findings and conclusions in similar cases are the product of passion rather than reason. Id.
Petitioner's response in the instant motion is to compare this situation with that the Supreme Court faced in Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). There a state trial judge had been convicted of taking bribes in a murder case from a particular lawyer. Bracy had the same lawyer but had not paid a bribe and contended the trial judge had a motive to convict him to distract attention from the other cases. The Supreme Court found this theory plausible enough to merit discovery into the other case files.
As the Court's opinion in Bracy implicitly recognizes, a judge whose decisions are corrupted by the need to conceal indictable offenses is sufficiently biased that his decisions are not entitled to a presumption of correctness. But Bracy authorizes further discovery to see if petitioner's theory is grounded in fact. Here Petitioner was allowed discovery, but was unable to demonstrate any bias, beyond arguing for an inference from Judge Moser's reaction to criticism in the Gill case. That is simply insufficient. Allowing a certificate of appealability on this issue would commit the Court to allowing one anytime there was an allegation of trial judge bias and would, as Petitioner emphasizes, undermine altogether any deference to state court fact finding.
The certificate of appealability should be denied on the issue of whether this Court should have granted a presumption of correctness to the state court fact finding.
Ground Two: Improper Admission of Confession
In his Second Ground for Relief, Petitioner asserted that his confession was involuntary and obtained in violation of his Sixth Amendment right to counsel. Petitioner's argument here is based on his prior claim that the state court judge's findings of fact are not entitled to deference. As noted above, that argument does not merit a certificate of appealability.
Ground Three: Misinstruction of the Jury
In his Third Ground for Relief, Petitioner complains of three ways in which he claims the jury was misled about its proper role in the case. The Magistrate Judge recommended that this Ground for Relief be denied on the merits and Chief Judge Rice adopted the Report and Recommendations on this ground over Petitioner's Objections without further analysis. 104 F. Supp.2d at 886-887.
Petitioner emphasizes that the jury was told its death penalty verdict was merely a recommendation. However, instruction to the jury that its verdict is a recommendation for the death sentence is not erroneous under Ohio law, nor is it unconstitutional. Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000). Accord, Mapes v. Coyle, 171 F.3d 408, 414-15 (6th Cir. 1999); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000). To establish a violation of Caldwell v. Mississippi, 472 U.S. 320 (1985), "a defendant must necessarily show that the remarks to the jury improperly described the role assigned to the jury by local law." Romano v. Oklahoma, 512 U.S. 1, 9 (1994).
Petitioner complains that the prosecutor adverted to four statutory mitigating factors on which he had introduced no evidence and argued that the prosecutor had thereby converted the absence of mitigating factors into a non-statutory aggravating factor. In the Report and Recommendations, the Magistrate Judge disagreed, noting that if the legislature had specifically agreed that some factor would be mitigating but the defendant could produce no evidence of it, that would take weight away from the mitigation side of the scales, not add weight to the aggravating side. In seeking a certificate of appealability on this ground, Petitioner points to no federal constitutional law suggesting this behavior by the prosecutor somehow violated Petitioner's right to a fair trial.
Finally, Petitioner complains that the jury was instructed not to be swayed by considerations of sympathy. The Sixth Circuit has twice recently rejected challenges to the standard Ohio instruction to disregard sympathy. Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000); Mapes v. Coyle, 171 F.3d 408, 414-15 (6th Cir. 1999); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000).
A certificate of appealability should not be granted on the Third Ground for Relief.
Ground Four: Improper Excuse of Jurors
In Ground Four Petitioner objects to the excuse of jurors who, he claims, were not shown to have been unable to follow the law. The Magistrate Judge recommended denial of this claim on the merits and Chief Judge Rice adopted that recommendation over Petitioner's Objections without further analysis. 104 F. Supp.2d at 886.
A trial judge's finding that a venire man was not biased and properly seated was a finding of fact subject to the 28 U.S.C. § 2254(d) presumption of correctness. Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2889, 81 L.Ed.2d 847 (1984). Judge Moser's decision on the two jurors in question, Patton and Wenger, was made on a record of thorough examination and requires this Court's deference, which it has received.
A certificate of appealability should be denied on the Fourth Ground for Relief.
Ground Seven: Biased Judge on Motion to Suppress
For the reasons set forth above with respect to the presumption of correctness, this ground for relief is without merit and does not deserve encouragement to proceed further. The certificate of appealability should be denied on this ground.
Ground Eight: Ineffective Assistance of Counsel
In his Eighth Ground for Relief, Petitioner argued that he received ineffective assistance of trial and appellate counsel because his trial court psychologist was ineffective and because counsel did not object to the language in the indictment which he claimed in his Fifth Ground for Relief was error. The Magistrate Judge recommended this claim be denied on the merits and Chief Judge Rice adopted that recommendation over Petitioner's Objections without further analysis. 104 F. Supp.2d 886.
The claim regarding the psychologist is totally without merit since the replacement psychologist on whom Petitioner relies would have testified he has a sadistic personality disorder.
rhetorically it seems fairly certain that telling a jury that a defendant who has stabbed three women victims over forty times has features of a sadistic personality would not be especially persuasive in mitigation.
Report and Recommendations, Doc. #125, p. 64.
With respect to the claim of ineffective assistance for failure to raise the alleged indictment error raised here in the Fifth Ground for Relief, the Magistrate Judge notes that Petitioner has not sought a certificate of appealability on the Fifth Ground. There is therefore no good basis for granting a certificate of appealability as to that claim.
Ground Nine: Failure to Provide a Verbatim Transcript
While there is a good basis for desiring a verbatim transcript of all proceedings in death penalty cases and Ohio has taken the correct steps to make this happen, there is absolutely no constitutional grounds for such a requirement when carried to the point of claiming that failure to make an error-free verbatim transcript makes the subsequent conviction and death sentence unconstitutional.
Ground Ten: Gruesome Photographs
In this tenth ground, Petitioner complains of gruesome photographs of the murder scene offered at trial. The Ohio Supreme Court held that, even though the content was gruesome, "The probative value of these photos is beyond dispute, as they are manifestly relevant to show cause of death and the killer's purpose to cause death." State v. Depew, 38 Ohio St.3d 275, 281-282, 528 N.E.2d 542, 551 (1988). This Court deferred to that finding and there is no reason to encouragement further litigation of the point.
Ground Eleven: Invasion of Marital Privilege
At trial Petitioner sought to prevent the testimony of his alleged common-law wife., Deborah Sowers. This Court has held both that the Ohio courts' determination after hearing that they were not husband and wife deserves deference and that there is no constitutional right to exclude such testimony in any event. Report and Recommendations, Doc. #125, at pp. 68-69, adopted 104 F. Supp.2d 886.
Ground Twelve: Cumulative Error
The gravamen of the twelfth claim seems to be that Judge Moser did not write an opinion explaining why the aggravating factors outweighed the mitigating factors in this case. While conceding that cumulative errors may render a trial unfair when no single one of the aggregated errors would do so, the Court is unaware of any authority requiring a written opinion in such circumstances.
Ground Thirteen: Ohio's Capital Punishment Scheme Generally
In the Thirteenth Ground for Relief, Petitioner raises a number of claims that the Ohio death penalty scheme in general and as applied to him is unconstitutional. These arguments were thoroughly considered in the Report and Recommendations (Doc. #125, pp. 70-73); the Report was adopted by Chief Judge Rice over Petitioner's Objections but without further analysis. Nothing in this Thirteenth Ground for Relief deserves further encouragement to proceed on appeal.
Conclusion
In accordance with the foregoing analysis, it is respectfully recommended that the Motion for Certificate of Appealability be DENIED.