Wheeler v. Simpson

852 F.3d 509

Roger L. WHEELER, Petitioner-Appellant,

v.Thomas L. SIMPSON, Warden, Respondent-Appellee.

No. 11-5707

United States Court of Appeals, Sixth Circuit.

Argued: October 1, 2014

Decided and Filed: March 23, 2017

Rehearing Denied April 12, 2017

ARGUED: Joseph T. Flood, SHELDON, FLOOD & HAYWOOD, PLC, Fairfax, Virginia, for Appellant. David W. Barr, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: Joseph T. Flood, SHELDON, FLOOD & HAYWOOD, PLC, Fairfax, Virginia, David M. Barron, KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant. David W. Barr, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

Before: MERRITT, GRIFFIN, and WHITE, Circuit Judges.

GRIFFIN, J., delivered the opinion of the court in which MERRITT and WHITE, JJ., joined. MERRITT, J. (pg. 521), delivered a separate concurring opinion.

OPINION

GRIFFIN, Circuit Judge.

This habeas case returns to us on remand from the Supreme Court. Previously, this court granted habeas relief to petitioner Roger Wheeler based on the state trial court's decision to remove a juror who could not give sufficient assurance of neutrality or impartiality in considering whether to impose the death penalty. See Wheeler v. Simpson , 779 F.3d 366, 374–75 (6th Cir.), rev'd sub nom. White v. Wheeler , ––– U.S. ––––, 136 S.Ct. 456, 193 L.Ed.2d 384 (2015) (per curiam). Our majority opinion also addressed and rejected petitioner's other claims relating to the guilt phase of the state trial proceedings, but left unresolved other claims relating to the penalty phase. See id. at 375. Both Wheeler and respondent Thomas Simpson ("Warden") filed petitions for certiorari. The Supreme Court denied Wheeler's petition, Wheeler v. White , ––– U.S. ––––, 136 S.Ct. 688, 193 L.Ed.2d 519 (2015), but granted the Warden's, reversing our decision to issue the writ and remanding for further proceedings, White , 136 S.Ct. at 462. We now address petitioner's remaining claims certified for appeal. After doing so, we affirm the judgment of the district court.

I.

In 2001, a jury convicted petitioner of two counts of intentional murder. Petitioner's victims were Nigel Malone and his girlfriend, Nairobi Warfield. The jury recommended a death sentence after finding one aggravating circumstance: that petitioner's "act ... of killing [was] intentional and resulted in multiple deaths[.]" Ky. Rev. Stat. § 532.025(2)(a)(6). The trial court followed the jury's recommendation and imposed a death sentence for each conviction. On direct appeal, the Kentucky Supreme Court made the following findings of fact:

On October 2, 1997, Louisville police discovered the bodies of [Malone and Warfield] in the apartment the victims shared. The male victim was found in a hallway near the bathroom. He had suffered nine stab wounds. Two stab wounds to the chest were considered the fatal wounds by the medical examiner. She described the crime scene as having blood spatters on the floor, walls, furniture and appliances. The medical examiner believed that the main struggle occurred in the kitchen and progressed to the hallway where the body of the male victim was found.

The female victim died as a result of manual strangulation. The medical examiner testified that she believed the struggle between the female and her assailant occurred in the bedroom where she was found. The female victim had multiple abrasions on the left side of her neck and lacerations with a bruise on her mouth and several bruises on her lips. Her body was found in a seated position, leaning against a bedroom wall. She was covered with a blanket or quilt and a [pair of] scissors was protruding from her neck. The medical testimony determined that she had been stabbed with the scissors after she was already dead. During the autopsy, the medical examiner discovered that the female victim was pregnant.

There was blood on the floors and walls in nearly every room in the apartment. Numerous blood samples were also collected at the scene and were subject to laboratory testing. No fingerprints were found on the scissors.

Wheeler denied killing the two victims but he changed his story on several occasions. Originally, he denied ever being inside of the apartment on the night the murders occurred but then later admitted being in the apartment on that night. He claimed that Nigel Malone was already stabbed, but that he did not see Nairobi Warfield. He also asserts that the assailant was already inside the apartment and he and that person fought which was why he was wounded.

Wheeler v. Commonwealth , 121 S.W.3d 173, 178 (Ky. 2003). The court affirmed petitioner's convictions and sentences. Id . at 189. Following his direct appeal, petitioner sought post-conviction relief in the state courts, which was denied. See Wheeler v. Commonwealth , No. 2006-SC-000901-MR, 2008 WL 5051579, at *11 (Ky. Nov. 26, 2008) (unpublished).

Wheeler filed the instant petition for a writ of habeas corpus in 2009. A magistrate judge recommended granting the Warden's motion for summary judgment and denying the habeas corpus petition. The district court agreed with the magistrate judge and denied the petition. The district court granted a COA as to ten claims, and we later expanded the COA to include two additional claims.

Having previously decided petitioner's guilt-phase claims, and the Supreme Court having denied his certiorari petition, our decision regarding those claims is law-of-the-case. See, e.g. , Bowles v. Russell , 432 F.3d 668, 676 (6th Cir. 2005), aff'd, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) ("[O]nce an appellate court either expressly or by necessary implication decides an issue, the decision will be binding upon all subsequent proceedings in the same case.") (citation omitted). It also goes without saying that we cannot revisit petitioner's juror-bias claim, the Supreme Court having reversed our holding as to that claim. We turn then to petitioner's remaining penalty-phase claims.

II.

The Antiterrorism and Effective Death Penalty Act of 1996 limits federal habeas review of state court proceedings and provides that an application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

A state court adjudication is "contrary to" Supreme Court precedent under § 2254(d)(1)"if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law [,]" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [an opposite result]." Williams v. Taylor , 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the "unreasonable application" clause of § 2254(d)(1), habeas relief is available if "the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case [.]" Harris v. Haeberlin , 526 F.3d 903, 909 (6th Cir. 2008) (citations omitted). "In order for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,’ the state court's decision must have been more than incorrect or erroneous," but rather "must have been ‘objectively unreasonable.’ " Wiggins v. Smith , 539 U.S. 510, 520–21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (citations omitted). That means

even clear error will not suffice. Rather, as a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement .

White v. Woodall , ––– U.S. ––––, 134 S.Ct. 1697, 1702, 188 L.Ed.2d 698 (2014) (emphasis added, citations, quotation marks, and alterations omitted). In short, the standard for obtaining federal habeas relief is "difficult to meet." Id. (citation omitted).

On appeal, we review "de novo a district court's legal conclusions and mixed questions of law and fact and review[ ] its factual findings for clear error." Moore v. Mitchell , 708 F.3d 760, 774 (6th Cir. 2013).

III.

Petitioner first argues that the trial court improperly admitted evidence as to the availability of prison furloughs in the future. Specifically, petitioner asserts that, through this evidence, the jury was led to believe that "unless [it] imposed a sentence of death, [petitioner] might one day be released into the community on furloughs," which petitioner argues was "irrelevant speculation that unfairly tilted the evidence in favor of a death sentence in violation of [his] constitutional right to a reliable capital sentencing determination."

This claim is procedurally defaulted.

A habeas petitioner procedurally defaults a claim if: (1) the petitioner fails to comply with a state procedural rule; (2) the state courts enforce the rule; (3) the state procedural rule is an adequate and independent state ground for denying review of a federal constitutional claim; and (4) the petitioner cannot show cause and prejudice excusing the default.

Guilmette v. Howes , 624 F.3d 286, 290 (6th Cir. 2010) (citation omitted).

Petitioner acknowledges that he failed to raise this claim on direct appeal, asserting it for the first time in his state post-conviction proceeding. Thus, petitioner "fail[ed] to comply with [Kentucky's] procedural rule[,]" id. namely that a post-conviction proceeding is not the place for a "convicted defenda...