Shoop v. Cunningham

143 S.Ct. 37 (Mem)

214 L.Ed.2d 241 (Mem)

Tim SHOOP, Warden v. Jeronique D. CUNNINGHAM.

No. 21-1587

Supreme Court of United States

Decided November 14, 2022

The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is denied.

Justice THOMAS, with whom Justice ALITO and Justice GORSUCH join, dissenting from denial of certiorari.

In 2002, respondent Jeronique Cunningham concluded an armed robbery of his drug dealer with a spray of bullets that killed a teenager and a toddler. An Ohio jury convicted him of capital murder, and the trial court sentenced him to death. Twenty years later, the Sixth Circuit ordered an evidentiary hearing to determine whether the foreperson's presence on the jury deprived Cunningham of due process—either because the foreperson received prejudicial outside information about Cunningham or because she was biased by an undisclosed relationship with the victims' families. In analyzing the first claim, the Sixth Circuit once again flouted the deferential standard of review demanded by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In analyzing the second claim, the Sixth Circuit applied an incorrect framework to justify a fishing expedition based on allegations with no admissible factual foundation.

To correct these manifest abuses of the Sixth Circuit's habeas jurisdiction, I would grant Ohio's petition and summarily reverse the judgment below. Therefore, I respectfully dissent from denial of certiorari.

I

On January 3, 2002, Cunningham and his half-brother, Cleveland Jackson, purchased crack cocaine from Shane Liles in Lima, Ohio. That evening, Cunningham and Jackson returned to Liles' apartment to rob him. Both were armed with handguns. Liles was not home when the would-be robbers arrived, so Liles' girlfriend, Tomeaka Grant, called him to let him know he had visitors. Cunningham and Jackson waited for Liles in the living room, where three teenagers—Leneshia Williams, Coron Liles, and Dwight Goodloe, Jr.—were watching The Fast and the Furious. In the meantime, Tomeaka Grant returned to the kitchen, where she was playing cards with James Grant (her brother) and Arnetta Robinson (a family friend). James Grant's 3-year-old daughter, Jala Grant, was also present.

When Liles got home, Jackson pretended to be interested in another drug buy until Cunningham drew his gun. Cunningham then herded the teens into the kitchen, where he held everyone at gunpoint. Meanwhile, Jackson walked Liles upstairs at gunpoint while demanding drugs and money, tied his hands behind his back, and finally forced him to join the group in the kitchen.

The two robbers ordered the assembled victims, now eight in total, to place their valuables on the kitchen table. When Liles said he had none left, Jackson shot him in the back. Both robbers then fired into the huddled group until their guns were empty. All eight victims were shot. Two died: 17-year-old Leneshia and 3-year-old Jala, both killed by bullets to the head. Jala's father, James Grant, was shot five times as he vainly attempted to shield his young daughter. Robinson was comatose for 47 days, and Tomeaka Grant lost an eye.

In June 2002, a jury found Cunningham guilty of aggravated murder, attempted murder, and aggravated robbery. After a penalty hearing, the jury recommended and the trial court imposed the death sentence for the murders. The Ohio Supreme Court affirmed Cunningham's convictions and sentence. State v. Cunningham, 105 OhioSt.3d 197, 2004-Ohio-7007, 824 N.E.2d 504.

Cunningham filed a state postconviction motion, asserting (among other claims not relevant here) that the jury foreperson's presence on the jury had deprived him of a fair trial. Cunningham based this claim on a postverdict interview that the foreperson had given to a private investigator working for Jackson's defense team. The investigator's notes reflect that the foreperson discussed the evidence in the case and what she and the other jurors had thought about it in detail. Then, near the end of the interview, she stated that "'some social workers worked with Jeronique [Cunningham] in the past and were afraid of him.'" State v. Cunningham, 2004-Ohio-5892, ¶60, 2004 WL 2496525 (App.). Latching onto that statement, Cunningham alleged that the foreperson, who worked at Allen County Children Services, had received extraneous prejudicial information about him from her colleagues.

The trial court dismissed the claim without discovery or an evidentiary hearing, and the Ohio Court of Appeals affirmed. See id., ¶¶67-71. The Ohio Court of Appeals explained that the investigator's notes did not suggest that the foreperson had obtained any information from her fellow social workers prior to Cunningham's trial. After all, the court noted, the record did not show when the investigator had interviewed the foreperson, and the foreperson had been thoroughly examined in voir dire with no indication that she could not be fair and impartial. Id., ¶61. The court further reasoned that the foreperson's negative "impression of Cunningham's character ... was likely shaped during the trial" and that the rest of the interview notes showed that the foreperson "followed the law and carefully considered the evidence in the case." Id., ¶62.

In 2006, Cunningham filed a federal habeas corpus petition in the District Court for the Northern District of Ohio, reasserting his outside-information claim. Although Cunningham's claim had been adjudicated on the merits in state court, the District Court decided in 2008 that he was entitled to discovery about "when [the foreperson] acquired [the outside] information, who she learned it from, whether she told any other jurors and whether this information influenced her or any other jurors to convict Cunningham and/or vote for the death penalty."¹ Cunningham v. Hudson, 2008 WL 2390777, *7 (June 9, 2008). The District Court thus authorized Cunningham to depose the foreperson, all seated and alternate jurors, Allen County Children Services employees, and the investigator who had interviewed the foreperson.

Cunningham obtained affidavits from two other jurors, neither of whom recalled hearing the foreperson discuss any outside information about Cunningham. The jurors did, however, attest to a statement by the foreperson regarding the victims' families during deliberations. According to one juror, the foreperson said, "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." App. to Pet. for Cert. 101a. According to the second juror, the foreperson "told the young woman [the first juror] and the jury that the young woman did not have to work in the local community." Id., at 102a.

The foreperson was deposed in January 2009. She confirmed that she had not spoken to any of her colleagues about Cunningham prior to his trial. Rather, she only "looked through [his] files" after the trial and sentencing were "completely over." Cunningham v. Hudson, No. 3:06-cv-00167 (ND Ohio, Feb. 15, 2009), ECF Doc. 107, p. 4. Cunningham's counsel also asked the foreperson if she knew the victims, but the presiding Magistrate Judge sustained the State's objection that the question was beyond the scope of Cunningham's bias claim. Soon afterward, the District Court allowed Cunningham to amend his juror-bias claim to add an allegation that the foreperson was biased by a relationship with the victims' families.

The two other jurors were deposed in October 2009. The first juror substantially repeated the statements in her affidavit, while acknowledging that she was merely paraphrasing the foreperson's words and that her memory was not very good. The second juror testified that the foreperson "stated she may in the future be working with the families," but "not that she had been." App. to Pet. for Cert. 103a. The District Court again permitted Cunningham to amend his claim to include these statements as related in the depositions.

The case was then assigned to a different District Judge, who dismissed all of Cunningham's claims as procedurally defaulted, meritless, or both, and denied a certificate of appealability (COA) in 2010.

But the Sixth Circuit granted a COA on seven claims, including the claim that the foreperson's presence on the jury had deprived Cunningham of a fair trial. In 2014, three years after granting the COA, the Sixth Circuit concluded that it was unclear whether Cunningham's family-relationship claim was exhausted, and it remanded for the District Court to grant a stay and abeyance while Cunningham presented the claim to the state courts. Cunningham v. Hudson, 756 F.3d 477 (per curiam). The Ohio courts ultimately confirmed that Cunningham had no further state-law avenue for review. See State v. Cunningham, 2016-Ohio-3106, ¶¶10-26, 65 N.E.3d 307, 311-316 (App.). In 2019, the District Court (essentially repeating its analysis from nine years earlier) again dismissed Cunningham's habeas claims as procedurally defaulted, meritless, or both.

Just over two years later, in the decision below, a divided Sixth Circuit panel reversed and remanded, ordering the District Court to "conduct an evidentiary hearing to investigate Cunningham's two juror-bias claims." 23 F.4th 636, 678 (2022). First, the majority held that the Ohio postconviction courts unreasonably applied Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), by rejecting Cunningham's outside-information claim without conducting a hearing. 23 F.4th at 650. Drawing heavily on Circuit precedent, the majority reasoned that any "colorable claim" of outside influence entitles a defendant to a "Remmer hearing," and it held that Cunningham's claim met that standard. Id., at 651 (citing Ewing v. Horton, 914 F.3d 1027, 1030 (C.A.6 2019); Garcia v. Andrews, 488 F.3d 370, 376 (C.A.6 2007); United States v. Herndon, 156 F.3d 629, 635 (C.A.6 1998)).

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