Cunningham v. Shoop

23 F.4th 636

Jeronique D. CUNNINGHAM, Petitioner-Appellant,

v.Tim SHOOP, Warden, Respondent-Appellee.

Nos. 11-3005/20-3429

United States Court of Appeals, Sixth Circuit.

Argued: May 12, 2021

Decided and Filed: January 10, 2022

ARGUED: Michael J. Benza, LAW OFFICE OF MICHAEL J. BENZA, Chagrin Falls, Ohio, for Appellant. Margaret Moore, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Michael J. Benza, LAW OFFICE OF MICHAEL J. BENZA, Chagrin Falls, Ohio, Karl Schwartz, WISEMAN & SCHWARTZ, LLP, Philadelphia, Pennsylvania, for Appellant. Margaret Moore, Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Before: MOORE, KETHLEDGE, and WHITE, Circuit Judges.

MOORE, J., delivered the opinion of the court in which WHITE, J., joined. KETHLEDGE, J. (pp. 678–86), delivered a separate opinion concurring in the judgment in part and dissenting in part.

KAREN NELSON MOORE, Circuit Judge.

Jeronique Cunningham and his half-brother Cleveland Jackson robbed and shot several friends and their family members. A three-year-old girl, Jala Grant, and a seventeen-year-old woman, Leneshia Williams, were killed; six others were injured. Cunningham was indicted and tried on two aggravated-murder counts, an aggravated-robbery count, and six attempted-aggravated-murder counts. The aggravated-murder charges carried death-penalty and firearms specifications. Cunningham and Jackson were tried separately. The jury found Cunningham guilty on all counts and specifications and sentenced him to death. See State v. Cunningham (Cunningham II ), 105 Ohio St.3d 197, 824 N.E.2d 504, 510–13 (2004).

We consider eight issues in this habeas case. The first and second issues are juror-bias claims involving Cunningham's jury foreperson Nichole Mikesell. Cunningham argues that Mikesell's colleagues at the county's children-services agency improperly relayed external information about Cunningham to her. He also argues that Mikesell's relationship with the victims’ families affected the jury's impartiality. He seeks a hearing to investigate jury bias on both fronts. Third, we consider whether Cunningham's counsel ineffectively failed to investigate and present mitigating evidence. Fourth, we review whether Cunningham's trial counsel ineffectively failed to investigate, obtain, and present expert testimony about ballistics. Fifth, we evaluate whether the trial court improperly restricted Cunningham's ability to question prospective jurors during voir dire. Sixth, we decide whether the trial court failed to instruct the jury that it must determine Cunningham's personal culpability before imposing a death sentence. Seventh, we determine whether the prosecution improperly failed to turn over witness statements to the defense. Finally, we consider whether the prosecution made improper closing arguments during the guilt and sentencing phases. CA6 No. 11-3005 R. 50 (7/27/11 Order at 2); R. 71 (10/13/11 Order at 1); R. 187 (7/28/20 Order at 3).

We cannot grant Cunningham relief for issues three through eight. But we conclude that Cunningham is entitled to proceed on his juror-bias claims. We therefore REVERSE and REMAND so that the district court can conduct an evidentiary hearing to investigate juror bias.

I. ISSUES #1 & #2: JUROR BIAS

A. Background

1. Trial

Nichole Mikesell served as the jury foreperson for Cunningham's trial. R. 194-2 (Trial Tr. at 1498) (Page ID #10708). On her jury questionnaire, Mikesell indicated that she worked as a child-abuse investigator at Allen County Children Services and as a crisis counselor at Crime Victims Services. R. 192-4 (Mikesell Questionnaire) (Page ID #5301, 5306). She wrote that she worked closely with the Allen County sheriff's office, the Lima police department, and the juvenile court. Id. (Page ID #5302–04). To the prompt "[d]o you know of any reason you could not sit as a juror and be absolutely fair to the Defendant and the State of Ohio and render a verdict based solely upon the evidence presented you[,]" Mikesell checked "no." Id. (Page ID #5308). At voir dire, the judge asked the prospective jurors "do any of you have any personal knowledge of the facts of this case?" R. 194-1 (Voir Dire at 13) (Page ID #9181). Mikesell said nothing. Id. at 14 (Page ID #9182). The court, the prosecution, and defense counsel confirmed that Mikesell knew several of the prosecutors and a defense lawyer from work, that she worked at children services, and that she had friends "on the police department," but Mikesell assured the court that she would be impartial. Id. at 24–25, 37, 72, 207–09 (Page ID #9192–93, 9205, 9240, 9375–77).

The jury found Cunningham guilty on all counts and specifications and sentenced him to death. See Cunningham II , 824 N.E.2d at 512–13. Cunningham appealed his conviction and sentence to the Ohio Supreme Court. See id. at 513.

2. State Postconviction Proceedings

During the pendency of Cunningham's direct appeal, Jackson's investigator endeavored to interview Cunningham's jurors. The investigator secured interviews with six members of Cunningham's jury, including foreperson Mikesell and jurors Staci Freeman and Roberta Wobler, and an alternate. R. 192-4 (Investigator Rep.) (Page ID #5122). The investigator prepared a report of these seven interviews, and he swore to their veracity in an affidavit dated July 16, 2003. R. 192-4 (Ericson Aff.) (Page ID #5121). The investigator wrote—

[Mikesell] said that there was nothing in Jeronique's life that could have possibly explained his participation in the instant offense. She said that Jeronique is an evil person. She said that some social workers worked with Jeronique in the past and were afraid of him. She also said that if you observe one of the veins starting to bulge in his head, watch out and stay away because he might try to kill you. She also said that Jeronique had no redeeming qualities. ... She said that the defense knew what she did at children's services but did not ask her if she had any direct information regarding the instant offense. As it turned out, she did not have any pertinent information regarding the instant offense but said that the defense would not be aware of this.

R. 192-4 (Investigator Rep.) (Page ID #5132) (emphasis added). Freeman relayed that she voted last for finding Cunningham guilty of aggravated murder. Id. (Page ID #5125). "After a while," the report provides, "[Freeman] was convinced by the other jurors that Jeronique had in fact been guilty of aggravated murder as opposed to murder." Id.

Cunningham timely petitioned for state postconviction relief on August 1, 2003, raising a jury-bias claim based on the investigator's affidavit and report. R. 192-4 (2003 Postconviction Pet.) (Page ID #5047, 5085–91). Pointing to Mikesell's interview, Cunningham asserted that Mikesell's colleagues told her "extraneous" and "highly prejudicial information" that Mikesell had failed to divulge during voir dire or in her jury questionnaire. Id. (Page ID #5087). Asserting that his Sixth Amendment right to a trial by an impartial jury and his Fifth and Fourteenth Amendment due-process rights were violated, Cunningham requested a new trial or, at a minimum, discovery and an evidentiary hearing. Id. (Page ID #5088, 5090–91).

The state trial court denied Cunningham's postconviction petition without permitting discovery or an evidentiary hearing, and the Ohio Court of Appeals affirmed, reasoning that

Cunningham asserted that the presence of Juror Number 21, Nichole Mikesell, on the jury was prejudicial to him and violated his rights to a fair and impartial jury. ...

The only comment made by Mikesell that would have any bearing on Cunningham's assertion is that she was provided information by some social workers regarding Cunningham. However, the investigator's interview summary of Mikesell does not indicate whether Mikesell obtained this information from the social workers prior to, during, or subsequent to Cunningham's trial. The record also does not provide when the investigator conducted these interviews with the jurors. However, the record does provide that Mikesell was thoroughly examined during the voir dire process and that she informed the court regarding the information she had about the case. Mikesell never indicated that she could not be a fair and impartial juror.

State v. Cunningham (Cunningham I ), 2004 WL 2496525, at *15 (Ohio Ct. App. 2004).

The Ohio Supreme Court denied Cunningham's claims on direct appeal, Cunningham II , 824 N.E.2d at 532, and later declined to review Cunningham's postconviction petition, State v. Cunningham , 105 Ohio St.3d 1464, 824 N.E.2d 92 (2005).

3. Federal Habeas Proceedings

In 2006, Cunningham petitioned for habeas relief. He reasserted that his constitutional rights were violated by Mikesell's knowledge of extrajudicial information about Cunningham. R. 19-2 (Habeas Pet. at 7) (Page ID #243). The district court allowed Cunningham to depose the jurors, Mikesell's colleagues at Allen County Children Services, and Jackson's investigator. R. 79 (4/18/08 Mot. at 2–3) (Page ID #1501–02); R. 86 (6/9/08 Order at 10–12) (Page ID #1861–63).

Cunningham acquired affidavits from Freeman and Wobler. R. 104-1 (Freeman Aff. at 1) (Page ID #1955); R. 103-1 (Wobler Aff. at 1) (Page ID #1952). Freeman averred that during guilt-phase deliberations, Mikesell told the other jurors that she worked at the county's children-services agency. R. 104-1 (Freeman Aff. at 1) (Page ID #1955). When Freeman expressed that the ballistic evidence pointed to Jackson's—not Cunningham's—gun, Mikesell apparently responded: "[y]ou don't understand. I know the families of the people that were shot in the kitchen. The families know me and I am going to have to go back and see them. These families are my clients." Id. at 1–2 (Page ID #1955–56). Freeman "interpreted Mikesell's comments as pressure to vote guilty." Id. at 2 (Page ID #1956). Wobler attested that "[o]ne young woman on the jury was adamant that...