Bays v. Warden, Chillicothe Corr. Inst.

RICHARD BAYS, Petitioner-Appellant, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent-Appellee.

No. 18-3101

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

March 30, 2020

NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0183n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: GIBBONS, KETHLEDGE and DONALD, Circuit Judges.

JULIA S. GIBBONS, Circuit Judge. In December 1995, Bays was convicted of aggravated murder and aggravated robbery and sentenced to death by a three-judge panel in Greene County, Ohio. After exhausting his state remedies, in 2008 Bays filed a habeas corpus petition with the United States District Court for the Southern District of Ohio. The district court denied Bays's petitions on all claims but granted Bays a certificate of appealability on five issues.

On appeal to this court, Bays argues that his confession was involuntary and his lethal injection claims are cognizable in a habeas corpus proceeding. We disagree. First, the officer's accurate recitation of potential penalties faced by Bays did not constitute an implied promise of leniency that might cause Bays to involuntarily confess, and the Supreme Court of Ohio's factual determinations regarding his confession were not unreasonable. Second, this court's precedent in In re Campbell, 874 F.3d 454 (6th Cir. 2017), forecloses Bays's argument that his lethal injection claims are cognizable in habeas rather than as a claim under 42 U.S.C. § 1983.

We affirm the district court's denial of Bays's petition.

I.

In 1995, Bays was convicted of aggravated robbery and aggravated murder of Charles Weaver. A three-judge panel in Greene County, Ohio sentenced him to death. On direct appeal, State v. Bays, 716 N.E.2d 1126, 1131-33 (Ohio 1999), the Ohio Supreme Court made the following findings of fact:

On November 15, 1993, appellant, Richard Bays, robbed and murdered Charles Weaver. Bays was convicted of aggravated murder with a death specification and sentenced to death.

Seventy-six-year-old Charles Weaver lived in Xenia with his wife Rose. On November 15, 1993, Weaver's daughter, Betty Reed, went to her parents' house to see if they needed anything. Betty Reed and Rose Weaver decided to do some shopping and left the house together sometime between noon and 12:30 p.m. Between 1:30 and 2:30 that afternoon, Iris Simms (who lived near the Weavers' house) saw a slim man in his late twenties, with shoulder-length brown hair, walk onto Weaver's porch and approach the door.

Howard Hargrave, an acquaintance of Richard Bays, was standing around with two other people on Xenia's Main Street that afternoon when Bays approached him, out of breath, and asked whether Hargrave "knew anyone that had any drugs." According to Hargrave, Bays appeared "nervous" and "kept looking around." Hargrave noticed a red stain on Bays's T-shirt that looked like blood.

Betty Reed drove her mother home at about 5:30 p.m., accompanied by her son Michael. Dusk had fallen, and Betty noticed that no lights were on in the house, not even "a flicker of a television set." This was unusual enough that she and her son decided to escort Mrs. Weaver inside.

Michael Reed went in first. Turning on a light, he saw his grandfather's wheelchair standing empty. He then entered the kitchen. There he found Mr. Weaver lying on the floor. Michael told his mother to call 911.

Paramedics arrived in response to the 911 call, found Mr. Weaver dead, and summoned Xenia police officers to the scene. Officers found a shattered plastic tape recorder and a large, square-shaped battery charger with blood on it. The bedroom was in extreme disarray—a "total shambles," Betty Reed later testified—with drawers pulled out and their contents dumped on the floor. The bedroom hadnot been in that condition when Betty Reed and Mrs. Weaver left the house that afternoon.

Weaver's body was taken to the Montgomery County Coroner's Office. The ensuing autopsy showed that Weaver had suffered two stab wounds to the chest and three incised wounds on the neck. He also had several contusions, abrasions, and lacerations on top of his head, consistent with blows from a square, blunt object. The deputy coroner conducting the autopsy concluded that Weaver died of "a stab wound to the chest and blunt impact injuries to the head."

On November 16, the day after the murder, Xenia police detective Daniel Savage decided to interview Richard Bays.

At first, Bays told Savage that he had not been at Weaver's house on the day of the murder. However, Savage told Bays that someone had seen him there and that "if his [Bays's] prints matched the ones on Mr. Weaver's front door, then I [Savage] would be asking him to explain it." Bays then admitted that he had been at Weaver's house around 2:00 p.m. on November 15. He said he had coffee with Weaver, chatted, and left by 2:15.

However, an inconsistency in Bays's statement aroused Savage's curiosity. Bays told Savage that Weaver had been sitting in his wheelchair during Bays's visit and had not taken out his wallet. Yet Bays had also said that Weaver had the wallet in his back pocket during the visit. If Weaver was sitting in the wheelchair, Savage wondered, how could Bays have known that the wallet was in Weaver's back pocket?

On November 19, an informant told Savage that Weaver's killer had dropped the wallet, along with some clothing he had worn during the crime, into a storm sewer near Bays's house. Based on this information, Savage and Detective Daniel Donahue interviewed Bays again on November 19. During this interview, Bays confessed to killing Weaver.

Bays told the detectives that he went to Weaver's house after smoking some crack. He asked Weaver to lend him $30, but Weaver said he had no money. So Bays picked up the battery charger and hit Weaver on the head with it twice. When the battery charger's handle broke off, Bays started to run away, but then Weaver shouted that he was going to call the police. Bays then picked up a portable tape recorder and went back to hit Weaver on the head with it. The blow shattered the recorder, so Bays dropped it and attacked Weaver with a sharp kitchen knife. Bays admitted that he cut Weaver's throat and thought that he stabbed him in the chest.

Weaver fell out of his wheelchair, and Bays took the wallet from Weaver's back pocket. Weaver's wallet contained $25 cash and $9 worth of food stamps. Bays then went into the bedroom and dumped out the contents of the drawers. Then he fled. He subsequently bought crack with Weaver's $25.

Bays told the detectives that he threw Weaver's wallet down the storm sewer at the northwest corner of Second and Monroe Streets, along with the T-shirtand glove he had worn during the murder. At the end of Bays's statement, Savage placed him under arrest.

When detectives searched the storm sewer at Second and Monroe, they found the T-shirt, glove, and wallet, just as Bays had said. Betty Reed, who had given that wallet to her father, identified it in court.

While held in the county jail, Bays discussed his crime with another inmate, Larry Adkins. Adkins testified that Bays had told him that he "hit [Weaver] with a battery charger" and when Weaver fell from his chair, Bays "took his wallet and * * * stabbed him in the chest. Then he was almost on his way out and he turned around and cut [Weaver's] throat * * * to make sure he wasn't alive."

The Ohio Supreme Court affirmed Bays's conviction and sentence and held that his confession to police was voluntary. Bays, 716 N.E.2d at 1137. Bays filed several post-conviction petitions for relief. See State v. Bays, No. 2014-CA-24, 2015 WL 2452324 (Ohio Ct. App. May 15, 2015).

In 2008, Bays filed his first habeas corpus petition under 28 U.S.C § 2254. The petition raised numerous claims including, as relevant to this appeal, that Bays's confession was involuntary and should have been suppressed. A magistrate judge held an evidentiary hearing and determined that the petition should be denied. The district court granted Bays's certificate of appealability ("COA") on his claim that his confession was involuntary. Bays filed for leave to file a second amended habeas petition. The district court granted the motion, and Bays filed an amended petition raising four claims challenging the constitutionality of Ohio's lethal injection protocol. The district court denied Bays's lethal injection claims, finding them precluded by In re Campbell, 874 F.3d 454 (6th Cir. 2017), but it expanded the COA to include these claims. We denied Bays's request to expand the COA.

II.

"We review a district court's denial of a habeas petition de novo." Mitchell v. MacLaren, 933 F.3d 526, 531 (6th Cir. 2019) (citing Cleveland v. Bradshaw, 693 F.3d 626, 631 (6th Cir. 2012)). "The district court's findings of fact are reviewed for clear error, and its legal conclusionson mixed questions of law and fact are reviewed de novo." Id. (citing Gumm v. Mitchell, 775 F.3d 345, 359-60 (6th Cir. 2014)).

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), "a court considering a habeas claim must defer to any decision by a state court concerning the claim, unless the state court's judgment: (1) resulted in a decision that was contrary to clearly established federal law as determined by the United States Supreme Court; (2) involved unreasonable application of clearly established federal law as determined by the United States Supreme Court; or (3) was based on an unreasonable determination of the facts in light of the evidence presented in the state court." Schreane v. Ebbert, 864 F.3d 446, 450 (6th Cir. 2017) (citing 28 U.S.C. § 2254(d)(1), (2)). "A state court's decision involves an unreasonable application of federal law if the state-court decision identifies the correct governing legal principle in existence at the time, but unreasonably applies that principle to the facts of the [petitioner's] case." Pouncy v. Palmer, 846 F.3d 144, 158 (6th Cir. 2017) (internal quotations omitted) (quoting ...