LANDRUM v. MITCHELL

625 F.3d 905

Lawrence LANDRUM, Petitioner-Appellee/Cross-Appellant,

v.Betty MITCHELL, Respondent-Appellant/Cross-Appellee.

Nos. 06-4194, 06-4251.

United States Court of Appeals,Sixth Circuit.

Argued: April 21, 2009.

Decided and Filed: Nov. 4, 2010.

Rehearing and Rehearing En Banc Denied Jan. 5, 2011.

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ARGUED: Laurence R. Snyder, Office of the Ohio Attorney General, Cleveland, Ohio, for Appellant. Gerald W. Simmons, Cincinnati, Ohio, for Appellee. ON BRIEF: Laurence R. Snyder, Office of the Ohio Attorney General, Cleveland, Ohio, for Appellant. Gerald W. Simmons, Cincinnati, Ohio, Randall L. Porter, Ohio Public Defender's Office, Columbus, Ohio, for Appellee.

Before: BATCHELDER, Chief Judge; BOGGS and GIBBONS, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Warden Betty Mitchell appeals the district court's order granting Lawrence Landrum's petition for a writ of habeas corpus on the basis of guilt-phase ineffective assistance of counsel. Landrum cross-appeals the district court's denial of his other claims. Because we find that Landrum has procedurally defaulted his claim of guilt-phase ineffective assistance of counsel, we reverse the district court's grant of habeas on that ground and affirm the district court's decision in all other respects.

I.

The Ohio Supreme Court summarized the facts of this case as follows:

On September 19, 1985, Harold White, Sr., the eighty-four-year-old victim, left his second floor apartment where he lived alone to dine at Sir Richard's, a restaurant just north of Chillicothe. After dinner, he went home around 9:15 or 9:30 p.m. When he arrived home, White found burglars in his apartment. Appellant-defendant, Lawrence (“Larry”) Landrum, was searching drawers in the kitchen. White, shining a flashlight on him, asked Landrum: “What the hell are you doing in my apartment?” Landrum replied: “I'm going to get all the money and stuff I can.” Then White told Landrum to leave immediately: “If you don't get out, I will call the police.”

While White and Landrum were talking, Grant Swackhammer, Landrum's fourteen-year-old accomplice, came up behind White and struck White on the head five or six times with a large railroad bolt. He struck some blows after White had fallen. Grant then said: “I killed him.” Landrum, joining in, sat astride White and wrestled with him. In the struggle, White tore Landrum's surgical gloves. Landrum then told Grant that White was still alive and to go get the biggest knife that he could from the kitchen. Grant responded and handed Landrum a large kitchen knife.

Landrum has given different versions of exactly what he did next. At trial, Landrum testified that he did not kill White. He denied asking Grant for the knife but admitted Grant handed it to him. Landrum testified that he only threatened White with the knife: “Told him not to move, to stay still and he wouldn't get hurt.” Landrum then went through White's pockets, taking his keys and wallet. Landrum further testified that he told Grant to watch White, then laid the knife down and went to another room to search for valuables. Later, Landrum heard hollering and screaming and shouted to Grant to keep White down. Only when Landrum came back did he notice that White's throat was slit. However, Landrum told several witnesses that night that he, and not Grant, had cut White's throat.

Landrum took about $80 and over two hundred nerve pills (Placidyls and Librium) from White's apartment. Landrum kept all the money and pills. When Landrum and Grant left the apartment, they went to Grant's house, separated, and Landrum then went to the house of his friend, Rick Perry.

At Perry's house, then at a railroad yard, and later at a first floor apartment below White's, Landrum told several juveniles that night the details of the burglary and murder. Landrum told Michael Drew, a seventeen-year-old runaway, that he had just done a job and then described the burglary and murder. He told Drew that he had nodded his head, telling Grant to hit White with the railroad bolt. Landrum showed Drew a bunch of money and also told him that “he slit his [White's] throat from ear to ear.” Landrum also warned Drew and the others: “If you guys go to the law, I'll cut your throat just like I did Mr. White's.” Drew also described Landrum changing clothes that evening.

Rick Perry, age nineteen, a good friend of Landrum's, testified that he saw Landrum around 11:30 p.m. on September 19 at Perry's house. Landrum told him: “I've got money.” “I did a job.” “I killed some old man.” “I cut his throat.” Landrum told Larry Perry, Rick's brother, that: “he had to get out of town because he had just gutted [someone].” He also showed Larry around one hundred thirty Placidyl pills and about the same quantity of Libriums. Landrum counted the pills at the house.

Cary Leasure, age sixteen, was also at the Perry house and later at the railroad yard. Cary testified that Landrum said he encountered White, “and then gave the signal, waved his hand and told his buddy to hit him [White] in the head.” When White fell down, Landrum got on top of him and then “told his buddy to go get a knife out of the kitchen drawer.” After his buddy gave him the knife, Landrum said, he then “cut the guy's throat.”

Karen Hughes Brown, age sixteen, also was at the Perry house and at the railroad yard. Karen said that Landrum told them he and his buddy, Grant, had “broke into Mr. White's house and Grant was supposed to have hit [him] over the head and Larry sliced his throat.” Landrum said they had been planning the burglary for a couple of days. Karen went that evening with Larry back to an apartment on the first floor of the same building. Landrum had to get a sweater and pair of pants that he had left. There, Landrum told Karen, “Oh, by the way, there's a dead body above you.” Karen testified that Landrum “asked me what I would do if blood started dripping on me from the ceiling and after he did that he asked if I wanted to go upstairs and see the body.” That evening, Landrum threatened all the juveniles, “if we told anybody, that he'd slice our throat. He said he sliced one person's throat, so he'd slice another.”

On September 20, an anonymous caller phoned the police, and that afternoon, the police forcibly entered Mr. White's second floor apartment. Inside they found White, his throat slit, lying in a pool of blood. Closet doors were ajar or open, drawers were pulled open with some contents dumped on the floor, and a wooden locked cabinet had been pried open. Police also found two pieces of material later determined to be pieces of gloves.

On September 21, police arrested Landrum for White's murder. On his person, police found a one-way bus ticket to Michigan purchased on September 20. When Landrum was arrested, the tennis shoes he was wearing bore traces of human blood. On September 23, after a grid search, police found a large kitchen knife in a wooded area. Police also found that day in the woods a paper sack containing a bloody towel and washcloth, surgical gloves, a pair of other rubber gloves, and the victim's wallet. At trial, Landrum admitted throwing away the towel and gloves. The knife, towel and washcloth, and one glove, contained human blood, type O, the same blood type as White's. Two fragments of gloves found in the apartment matched torn rubber gloves from the sack in the woods.

A pathologist testified that White suffered multiple lacerations to his head caused by a relatively blunt instrument, possibly the railroad bolt. He found six distinct wounds on White's right forehead, right side of the scalp and back left side. One blow caused a depressed skull fracture which might have proved fatal. White died of massive bleeding from a gaping neck wound. The neck wound, five inches in length, extended to the spine itself; the right carotid artery, windpipe, neck muscles and veins were all severed. At least two cutting episodes were involved. The evidence indicated that the kitchen knife found in the woods could have caused that wound.

At trial, the evidence showed Landrum planned the burglary. Carolyn Brown lived in an apartment below White. Landrum, while visiting Brown on September 17, told her that he was in trouble, needed money and might rob White to get some money. Brown asked Landrum: “What if you rob him and he comes in on you?” Landrum replied: “I'll kill him.” Landrum also said that he would use surgical gloves so they could not take fingerprints. In his own testimony, Landrum claimed to have told Brown he would only knock White unconscious. On September 18, Landrum went upstairs to visit White's apartment to “case the joint.” Landrum told White he was looking for an apartment to rent and White showed him through his apartment.

Grant Swackhammer had found a railroad bolt, and Grant and Landrum kept the bolt to use later as a weapon. On September 19, Landrum, along with Grant, visited Landrum's girlfriend, Wendy, who had delivered their baby the day before. At the hospital, Landrum showed Wendy some surgical gloves and told her those gloves may make him some money.

At trial, Landrum admitted essential details of planning and executing the burglary, including the confrontation with White. Although he admitted wrestling with White, he denied he cut White's throat, claiming only to have threatened him with the knife. Landrum did not recall telling various juveniles that he had cut White's throat.

To support his testimony, Landrum relied heavily on two facts. First, the shorts he wore and clothes he was carrying when arrested on September 21 showed no traces of blood. Some witnesses testified he wore those same clothes the night of the murder. Other testimony indicated that he changed clothes.

Second, Landrum raised intoxication as interfering with his intent. Landrum testified that he took some pills and drank six to eight beers...