Dennis v. Mitchell

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Dennis v. Mitchell No. 99-4460 ELECTRONIC CITATION: 2003 FED App. 0458P (6th Cir.) File Name: 03a0458p.06 OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, for Appellant. Henry G. Appel, ATTORNEY GENERAL’S OFFICE OF OHIO, Columbus, Ohio, for UNITED STATES COURT OF APPEALS Appellee. FOR THE SIXTH CIRCUIT _________________ _________________ OPINION ADREMY DENN IS, X _________________ Petitioner-Appellant, - SUHRHEINRICH, Circuit Judge. Petitioner Adremy - - No. 99-4460 Dennis was convicted by an Ohio jury of the aggravated v. - murder of Kurt Kyle and sentenced to death. After > exhausting his direct appeals and state post conviction , remedies, Dennis sought a writ of habeas corpus in federal BETTY MITCHELL , Warden, - Respondent-Appellee. - court pursuant to 28 U.S.C. § 2254. The district court dismissed the petition. For the following reasons, we affirm N the district court’s dismissal of Dennis’s habeas petition. Appeal from the United States District Court for the Northern District of Ohio at Akron. I. Background No. 98-01155—James Gwin, District Judge. A. Facts Argued: December 2, 2003 The Ohio Supreme Court made the following factual Decided and Filed: December 29, 2003 findings on direct review: During the early morning hours of June 5, 1994, Before: SUHRHEINRICH, SILER, and DAUGHTREY, defendant-appellant, Adremy L. Dennis, and Leroy Circuit Judges. “Lavar” Anderson stopped Dean R. Pizer in the Highland _________________ Square area of Akron and demanded money. Pizer escaped, even though a shotgun blast was fired at him as COUNSEL he fled. Shortly thereafter, Dennis shot and killed Kurt O. Kyle during a robbery in front of Kyle’s home at 818 ARGUED: John F. McCaffrey, McLAUGHLIN & Bloomfield Road. Dennis later admitted he shot Kyle McCAFFREY, Cleveland, Ohio, for Appellant. Henry G. during a robbery, and he was subsequently convicted of Appel, ATTORNEY GENERAL’S OFFICE OF OHIO, aggravated murder, attempted aggravated murder and Columbus, Ohio, for Appellee. ON BRIEF: John F. aggravated robbery, and sentenced to death. McCaffrey, McLAUGHLIN & McCAFFREY, Cleveland, Ohio, Linda E. Prucha, PUBLIC DEFENDER’S OFFICE, Late on Saturday, June 4, and in the early morning hours of Sunday, June 5, Dennis and Anderson decided

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to go to a bar and “meet some chicks.” Anderson spoke pockets and told Dennis that he had no money with him. of “robbing somebody,” and the pair armed themselves Dennis then pulled out a sawed-off shotgun and shot with weapons: Dennis with a sawed-off shotgun and Kyle in the head at point-blank range. Kyle died Anderson with a .25 caliber handgun. As the pair instantly of hypovolemic shock (loss of blood) due to a proceeded to the bar, the shotgun, according to Dennis, gunshot wound that severed both carotid arteries. accidently went off. Dennis then reloaded the weapon. According to Eberhart, the two assailants ran away Before arriving at the bar, the two smoked marijuana. together “sprinting very fast.” After some drinks, Anderson and Dennis left the bar Anita Foraker, who lived in the neighborhood, was out and encountered Dean Pizer in an alley near West Market walking her dog at around 1:30 a.m. that morning and Street and South Highland Avenue. The “taller one” of heard a “loud pop type of sound.” About a minute later, the two, whom Pizer identified as Dennis, was wearing she observed two young black males headed in the a long black leather coat and told Pizer, “Give me your opposite direction running by her on the other side of money. * * * Don’t try and run, don’t try and run. You Bloomfield Road. She heard one say to the other, “Did are going to die tonight, you are going to die.” Pizer you get it?” testified that he went backwards, slid and rolled down a hill, then ran away unharmed. He heard a gunshot “just A few days after the murder, Akron police received an left of me. There was a trash can or something got hit.” anonymous phone call stating that someone at 371 Grand Avenue knew about the homicide that past weekend. That same night, Kurt Kyle had raced at Barberton Detective Donald L. Gaines and another detective went Speedway and afterwards hosted several friends and to the address, where they met Shirley Morgan and told family members at his home for a cookout and her that a possible suspect was staying at her house. socializing. Later, as one of his guests, Martin Eberhart, Morgan invited the detectives in and gave them was leaving, Kyle walked with him to his car where the permission to look around the house and to speak to her two continued conversing for a short time. While son, seventeen-year-old Lavar Anderson. When the Eberhart was seated in his car talking with Kyle, they detectives went down to the basement, they noticed a heard a loud noise, which Kyle told Eberhart was a Miami Hurricanes jacket and a long, dark overcoat gunshot. About three minutes later, two black males hanging up in the far corner on a bedrail. At that time, approached them in the driveway, out of the view of they took Anderson into custody, and he provided Kyle’s other guests. The man Eberhart identified as detectives information about the location of the murder Anderson was wearing a green and orange Miami weapon. Hurricanes Starter jacket, and demanded money while pointing a gun a Eberhart’s neck. Eberhart slowly After procuring a search warrant, police seized several reached under the car seat for his wallet and handed items from Morgan’s basement, including the two coats, Anderson $15. a .25 caliber pearl handle handgun, a 20 gauge sawed-off shotgun, and seven shotgun shells. At that time, Dennis, whom Eberhart described as wearing a long, three-quarter-length dark coat, asked Upon completing the search of Morgan’s home, Kyle for money. However, Kyle searched through his Gaines received a call from two officers at 120 Burton

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Avenue, which was in the same general neighborhood. B. Procedural History The police surrounded the house on Burton and thereafter apprehended Adremy Dennis. Dennis was charged with one count of aggravated murder, one count of attempted murder, three counts of aggravated At the police station, Dennis was advised of his robbery, and one count of possession of dangerous ordnance. Miranda rights, which he waived. Dennis told several All of the counts carried a firearms specification, and the versions as to his whereabouts on June 4-5, 1994 to dangerous ordnance charge also carried a physical-harm Detectives Gaines, Lacy, and Offret. After Dennis’s specification. The aggravated murder count also carried two second statement, Gaines produced a sawed-off shotgun, death specifications: murder during an aggravated robbery, which Dennis immediately claimed was his own. In his where Dennis was the principal offender (Ohio Rev. Code fourth statement to detectives, Dennis admitted that he § 2929.04(A)(7)); and murder committed as a course of and Anderson had planned some robberies that night and conduct involving the killing or attempt to kill two or more admitted holding up Pizer, Eberhart and Kyle. However, persons (Ohio Rev. Code § 2929.04(A)(5)). Id. at 1101. while Dennis admitted aiming the sawed-off shotgun at Kyle, he also claimed the gun went off accidentally. Dennis’s trial began on December 12, 1994. The jury Dennis agreed to allow detectives to tape his statement. convicted him of all charges. After a mitigation hearing, the jury recommended the death penalty. On December 29, 1994, In his taped statement, Dennis said that he and the court agreed and sentenced Dennis to death. Id. Anderson had smoked marijuana and then drank at a bar before the robberies and murder. While Dennis admitted Dennis appealed. On May 8, 1996, the Ohio Court of he fired the sawed-off shotgun three times that night, he Appeals rejected his claims. See State v. Dennis, No. 17156, asserted that each shot was accidental and that he “could 1996 WL 233501 (Ohio Ct. App. May 8, 1996). Dennis barely focus” when they came upon Kyle and Eberhart. appealed to the Ohio Supreme Court. On September 24, After shooting Kyle, Dennis claimed he almost fell down 1997, that court affirmed Dennis’s conviction and sentence. and that Anderson had to help him flee the scene. See State v. Dennis, 683 N.E.2d 1096 (Ohio 1997). The United States Supreme Court denied certiorari. See Dennis v. Yellow shotgun shell casings were found a few days Ohio, 522 U.S. 1128 (1998). after the murder. One was found in the area where Pizer was accosted, the other was discovered in front of Kyle’s Dennis also exhausted his post-conviction remedies, to no home. Nancy E. Bulger, a forensic scientist with the avail. See State v. Dennis, No. 18410, 1997 WL 760680 Bureau of Criminal Identification and Investigation (Ohio Ct. App. 1997) (affirming denial of post-conviction (“BCI”), determined that the two casings were fired from relief); State v. Dennis, No. 98-13, 690 N.E.2d 1287 (Ohio the sawed-off shotgun that Dennis identified as his own. March 11, 1998).

State v. Dennis, 683 N.E.2d 1096, 1099-1101 (Ohio 1997). On June 30, 1998, Dennis field a petition for writ of habeas corpus. On October 1, 1999, the district court denied his petition and denied Dennis’s request for a certificate of appealability. This Court granted Dennis a certificate of appealability as to six issues.

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II. Standard of Review (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly We review a district court’s legal conclusions in habeas established Federal law, as determined by the Supreme actions de novo and its factual findings for clear error. Miller Court of the United States. v. Francis, 269 F.3d 609, 613 (6th Cir. 2001). If, however, (2) resulted in a decision that was based upon an the district court bases its decision on the state trial court unreasonable determination of the facts in light of the transcript, and makes no findings of fact, we review the evidence presented in the State court proceeding. district court’s fact findings de novo as well. Id. 28 U.S.C. § 2254(d). III. AEDPA In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Dennis’s petition was filed on June 30, 1998, after the Court explained the meaning of “contrary to” and effective date of the Antiterrorism and Effective Death “unreasonable application.” A state court’s legal decision is Penalty Act. Pub.L. 104-132, 110 Stat. 1214 (“AEDPA”). Its “contrary to” clearly established federal law under provisions therefore apply. Id. § 2254(d)(1) if the state court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law or “Congress enacted AEDPA to reduce delays in the if the state court decided a case differently than the Supreme execution of state and federal criminal sentences, . . . and to Court’s decisions on materially indistinguishable facts. Id. at further the principles of comity, finality, and federalism.” 412-13. An “unreasonable application” occurs when the state Woodford v. Garceau, 123 S. Ct. 1398, 1401 (2003) (internal court correctly identified the correct legal principle from citations and quotation marks omitted). One of the Supreme Court precedent but unreasonably applied that mechanisms for accomplishing these goals was an amended principle to the facts of the case before it. Id. version of 28 U.S.C. § 2254(d)(1), which places “new constraint[s] on the power of a federal habeas court to grant “[C]learly established Federal law, as determined by the a state prisoner’s application for a writ of habeas corpus with Supreme Court of the United States,” refers to “the holdings, respect to claims adjudicated on the merits in state court.” as opposed to the dicta, of [the Supreme] Court’s decisions as Williams v. Taylor, 549 U.S. 362, 412 (2000).1 of the time of the relevant state-court decision.” Id. at 412. The state court decision need not cite Supreme Court The Act provides in relevant part as follows: precedent, or even reflect awareness of Supreme Court cases, “so long as neither the reasoning nor the result of the state- (d) An application for a writ of habeas corpus on behalf court decision contradicts them.” Early v. Packer, 537 U.S. of a person in custody pursuant to the judgment of a State 3, 8 (2002) (per curiam).2 court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim–

1 2 The district court issued its opinion on Septem ber 3 0, 19 99, p rior to Dennis contends that the AEDP A does not apply to several issues the Supreme Court’s dec ision in William s v. Taylor, su pra, and did not in this case because the state court did not cite to any United Supreme have the benefit of that decision in resolving this case. Court precedent. This argument is without merit in light of Early, supra.

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Similarly, a federal habeas court may not grant habeas violent would not be violent.” She further explained that her relief under § 2254(d)(2) merely because it disagrees with a answer was based strictly on the definition of murder. The state trial court’s factual determination. Rather, the state trial court indicated that gross sexual imposition is considered court’s factual determination must be “objectively a violent crime, but that it understood how Harris had unreasonable” in light of the evidence presented during the interpreted it, and “that it might not have been clear as it state proceedings. Furthermore, a state court’s factual probably should have.” determinations are presumed correct, and can only be rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). The trial court also asked Harris if she thought the fact that she was a victim would interfere with her ability to evaluate IV. Analysis this case. Harris responded: A. Failure to Exclude Juror Harris Absolutely not. I feel that I am a professional and I feel that what happened to me has nothing to do with Dennis contends that the trial court violated his what happened to the Kyle family or Adremy Dennis. constitutional right to a fair trial in violation of the Sixth and Fourteenth Amendments because the trial court failed to I feel that I can handle it professionally and there is excuse Juror Terri Harris for cause. During voir dire, parts to everyone’s personality and I feel very strongly potential jurors were asked whether any had been the victim that I can separate myself from that. of a crime of violence. Harris answered “no.”3 After the jury began penalty phase deliberations, a police detective You asked me to do a job and I’m doing a job. contacted the prosecutor, asking that Harris be allowed to take a break from deliberations in order to sign a criminal When asked by the trial court whether she could “separate out complaint along with her two sisters. Although defense your experience as a victim from this particular case and not counsel and the prosecutor knew that Harris was going to be let anything carry over that would cause you to identify more a witness in a case where the defendant was charged with the with victims,” Harris responded that the two cases were not crime of gross sexual imposition, they did not know until the comparable. Finally, the court asked Harris whether she penalty phase that she was a victim. Upon learning that foresaw any possible problem. She responded that she did Harris was actually a victim, the prosecutor promptly not, and stated that she was able to separate her emotions informed defense counsel and the court. from her duty, just as the trial court had instructed. The trial judge then asked counsel if they had “anything.” Defense The trial court called Harris into chambers and questioned counsel responded “[t]hat’s fine.” The prosecutor indicated her. Harris explained that, when asked if she had ever been that he had no questions. At that point the trial judge directed a victim of a violent crime, she in turn asked the judge’s Harris to return to the jury room. bailiff, Alys, about the definition of violent crime, and “decided that what happened to me by your definition of After Harris returned to the jury room, the trial court asked counsel if they wanted to put anything on the record. Defense counsel replied no. The prosecutor informed the trial court that, although they knew prior to trial that Harris was a 3 The question posed was: “Violent crime; any experience witness, they had just learned that Harris was a victim. whatsoever?” Juror Harris responded: “No.”

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The trial court then made the following findings of fact: conclusion after asking the trial judge’s bailiff during jury selection for a definition of “violent crime.” Harris I think that she did give it some thought. She was not indicated that at that time, she concluded that her intentionally trying to conceal anything. She just did not experience was not “violent” when compared to murder, recognize what we recognize, that a sexual abuse victim and therefore, did not bring it to the court’s attention. is to us a violent crime and I gather that is not terribly clear in the way we ask it. The court questioned Harris extensively, and she was adamant that her status as a victim of sexual abuse had And so she did make that inquiry of Alys and Alys’ nothing to do with what happened to the Kyle family or response was, well, when she says are they talking about Dennis, and that she could separate the two experiences murder, violent, she said I would imagine so, that she and be impartial. The court asked defense counsel if they just dismissed it as not being something that would be had anything they wished to put on the record, and covered under violent crime. defense counsel indicated they did not. After Harris returned to the jury room, counsel for both sides I was also satisfied with her answer as to her ability to informed the court that just prior to trial they became handle it. aware of the fact that Harris had been a witness to sexual abuse. Counsel for both parties agreed that it probably Upon this ruling, defense counsel did not ask that Harris be wasn’t necessary for them to act upon it. However, at the removed. However, after the jury returned and recommended end of the trial, defense counsel filed a motion for to the court that Dennis be sentenced to death, Dennis moved mistrial upon learning that Harris was a victim of sexual for a mistrial, claiming that Harris was biased. The trial court abuse, and not just a witness. denied the motion, ruling that Harris was voir dired by the court, the prosecutor, and by defense counsel, and thereafter A trial court enjoys broad discretion in determining a passed to continue on with her service. juror’s ability to be impartial. State v. Williams (1983), 6 Ohio St.3d 281, 288, 6 OBR 345, 351, 452 N.E.2d The Ohio Supreme Court held that the trial court had not 1321, 1331. The trial court’s decision to allow Harris to abused its discretion by concluding that Harris was impartial remain on the jury did not amount to an abuse of and could remain on the jury. discretion, especially in light of the court’s voir-dire examination of Harris conducted in chambers during During the jury’s penalty-phase deliberations, the trial penalty-phase deliberations. See State v. Maurer, (1984), court learned that Harris had been a victim of sexual 15 Ohio St.3d 239, 250-251, 15 OBR 379, 389, 473 abuse as a child, when a detective asked the court to N.E.2d 768, 781. Accordingly, Proposition of Law No. momentarily excuse Harris from deliberations in order to 5 is overruled. sign a criminal complaint. The court brought Harris into chambers before the parties and conducted a voir-dire State v. Dennis, 683 N.E.2d at 1103. examination of her at that time. Harris explained that she had decided not to mention the sexual abuse during the On habeas review, the district court held that the Ohio original voir-dire examination because she did not feel it Supreme Court’s opinion was not an unreasonable application fit the definition of violent crime. She reached this of clearly established federal law, namely McDonough Power

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Equip., Inc. v. Greenwood, 464 U.S. 548 (1984). See Dennis The McDonough test governs cases where it is alleged that v. Mitchell, 68 F. Supp.2d 863, 885-89 (N.D. Ohio 1999). a juror intentionally concealed information. Zerka v. Green, 49 F.3d 1181, 1185 (6th Cir. 1995).4 In McDonough, the The Sixth Amendment provides that “[i]n all criminal Supreme Court held that, in order to obtain a new trial based prosecutions, the accused shall enjoy the right to a speedy and on a juror’s non-disclosure during voir dire, the defendant public trial, by an impartial jury.” U.S. Const. amend. VI. “must first demonstrate that a juror failed to answer honestly The right to an impartial jury is applicable to the states via the a material question on voir dire, and then further show that a Fourteenth Amendment. See Turner v. Louisiana, 379 U.S. correct response would have provided a valid basis for a 466 (1965); Irvin v. Dowd, 366 U.S. 717, 722 (1961). See challenge for cause.” Id. at 556. The McDonough court also Morgan v. Illinois, 504 U.S. 719, 726 (1992)(discussing explained that “[t]he motives for concealing information may Irvin and Turner). Furthermore, “due process alone has long vary, but only those reasons that affect a juror’s impartiality demanded that, if a jury is to be provided the defendant, can truly be said to affect the fairness of a trial.” Id. regardless of whether the Sixth Amendment requires it, the jury must stand impartial and indifferent to the extent In McDonough, a juror failed to reveal during voir dire in commanded by the Sixth Amendment.” Morgan, 504 U.S. at a products liability case that his son had broken his leg as a 727. The voir dire is designed “to protect [this right] by result of an exploding tire when asked whether anyone in his exposing possible biases, both known and unknown, on the immediate family had ever sustained a severe injury. part of potential jurors.” McDonough, 464 U.S. at 554. McDonough, 464 U.S. at 549-50. In holding that the Therefore, “[t]he necessity of truthful answers by prospective respondents were not entitled to a new trial, the Supreme jurors if this process is to serve its purpose is obvious.” Id. Court found that the juror “apparently believed that his son’s broken leg sustained as a result of an exploding tire was not When a juror’s impartiality is at issue, the relevant question such an injury.” Id. at 555. The Court noted that jurors “may is “did a juror swear that he could set aside any opinion he be uncertain as to the meaning of terms which are relatively might hold and decide the case on the evidence, and should easily understood by lawyers and judges.” Id. the juror’s protestation of impartiality have been believed.” Patton v. Yount, 467 U.S. 1025, 1036 (1984). A trial court’s We agree with the district court that the Ohio Supreme determination of a juror’s credibility is entitled to “special Court’s ruling is not contrary to the rule of McDonough. As deference.” Id. at 1038; Wainwright v. Witt, 469 U.S. 412, the district court noted, Harris explained that under the court’s 426 (1985) (noting that in determining whether a juror is definition, she believed that she had not been a victim of a biased, “deference must be paid to the trial judge who sees violent crime. Further, as the district court observed, upon and hears the juror”). As previously noted, a trial court’s hearing her explanation and observing her demeanor, the trial finding that a juror was impartial is entitled to a presumption judge accepted Harris’s explanation, and acknowledged that of correctness, rebuttable only upon a showing of clear and the court’s definition of violent crime was not entirely clear. convincing evidence. See 28 U.S.C. § 2254(e)(1); Patton, 467 U.S. at 1036 (noting that juror impartiality is a question 4 of historical fact). Further, the question for this Court is As we recently noted in an unpublished habeas decision, the simply whether the state trial court’s decision was “fairly McDonough test is not the exclusive test for determining whether a new supported by the record,” not whether it was right or wrong trial is warranted o n the basis of juror bias. See Baker v. Craven, No. 02- 5252, 2003 WL 2 2455420, at *6 n.1 (6th Cir. Oct. 28, 2003) (and cases in its determination of impartiality. Witt, 469 U.S. at 424. cited therein).

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Thus, as in McDonough, juror Harris’s misunderstanding of Wainwright v. Witt (1985), 469 U.S. 412, 105 S.Ct. 844, a legal term did not denote dishonesty. 83 L.Ed.2d 841, In short, the Ohio Supreme Court’s ruling that the trial “ ‘The proper standard for determining when a court did not abuse its discretion in retaining juror Harris is prospective juror may be excluded for cause based on his not contrary to the foregoing clearly established Federal law. views on capital punishment is whether the juror’s views See 28 U.S.C. § 2254(d)(1). Consistent with Supreme Court would prevent or substantially impair the performance of precedent, the trial judge examined the witness to determine his duties as a juror in accordance with his instructions if she was impartial. The trial judge found as a matter of fact and oath.’” that Harris had not been intentionally deceitful during the original voir dire, that she could set aside her personal Prospective juror Spencer stated unequivocally during feelings, and that she was impartial. Thus, consistent with voir dire that she did not feel she could recommend the United States Supreme Court precedent, the trial judge death sentence. She further stated that she would have a established Harris’s impartiality, during his in-chambers voir “lot of trouble” imposing death, even if the court dire. Harris repeatedly indicated that she could be a fair and instructed the jury that it was worthy of consideration. impartial juror, and the trial judge made a credibility Spencer also indicated that she did not feel she could put determination that her misunderstanding of the term violence her beliefs aside and follow the law. When asked if she was honest. The trial court’s fact findings are presumed could recommend the death penalty, Spencer replied, “I correct, see 28 U.S.C. § 2254(e); Patton. The Ohio Supreme don’t feel I could really do that.” Court’s decision is also not “an unreasonable determination of the facts in light of the evidence presented” to the state trial Prospective juror Williams also indicated that based on court. religious and moral grounds, she could not follow the law and recommend the death penalty. After further Finally, it must be remembered that defense counsel was questioning, Williams insisted that “[i]t will be a big given the opportunity to question Harris directly during the problem for me to sign and say that, yes, I believe in the in-chambers voir dire and to place any objections on the death penalty or I believe this person should be given the record, but failed to do so. Apparently, defense counsel did death penalty.” not doubt her veracity at the time either. The district court properly rejected this claim. We have previously stated that where the trial court is left with a definite impression that a prospective juror B. Improper Removal of Jurors Spence and Williams would be unable to faithfully and impartially apply the law, deference must be given to the trial judge who sees Dennis contends that the trial court improperly removed and hears the prospective juror. State v. Beuke (1988), two jurors, Kathleen Spence and Ruby Williams, for cause 39 Ohio St.3d 29, 38, 526 N.E.2d 274, 284-85. The trial based on their views of the death penalty. The Ohio Supreme court did not abuse its discretion in excusing the two Court held as follows: prospective jurors for cause. Both expressed views that would prevent or substantially impair them from In State v. Frazier (1995), 73 Ohio St.3d 323, 327, 652 fulfilling their duties as jurors. State v. Tyler, (1990), 50 N.E.2d 1000, 1006, we reaffirmed the standard in

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Ohio St.3d 24, 30, 553 N.E.2d 576, 586. Accordingly, The Ohio Supreme Court’s decision is not an unreasonable we overrule Proposition of Law No.8. application of Witt. In Witt, the Supreme Court upheld that trial court’s excusal for cause of a juror after she stated that State v. Dennis, 683 N.E.2d at 429. her personal beliefs against the death penalty would interfere with judging the defendant’s guilt or innocence. See Witt, The district court held that the Ohio Supreme Court 469 U.S. at 416. Similarly, in this case, the record reflects reasonably applied clearly established federal law. Dennis v. that both witnesses stated that they would be unable to sign a Mitchell, 68 F. Supp.2d at 889. The district court noted that death verdict, regardless of the verdict. The district court’s the Ohio Supreme Court followed the correct controlling independent review of the state court record confirms the state United States Supreme Court precedent of Witt, 469 U.S. courts’ assessment that the jurors’ views on the death penalty 412, which sets the standard for excusing jurors for cause. would substantially impair their performance. For these Witt held that “the proper standard for determining when a reasons, the Ohio Supreme Court’s ruling is not contrary to prospective juror may be excluded for cause because of his or Adams v. Texas, 448 U.S. 38 (1980) (holding that certain her views on capital punishment . . . is whether the juror’s veniremen had been improperly excluded because they views would prevent or substantially impair the performance acknowledged that their views of the death penalty might of his duties as a juror in accordance with his instructions and “affect” their deliberations, but only to the extent that they his oath.” Witt, 469 U.S. at 424. would view their task with greater gravity), and Witherspoon v. Illinois, 391 U.S. 510 (1968) (finding it improper to Based on this standard, the district court concluded that: exclude veniremen simply because they voiced general objections to the death penalty or expressed conscientious or Here, both Spencer and Williams stated that they could religious objections to its imposition), because the record not follow the law and recommend the death penalty. reflects that the jurors had more than mere qualms or moral Before trial, the prosecutor, using the Wainwright objection to the death penalty, but an inability or language, asked juror Spencer if her “moral belief against unwillingness to follow the law or obey their oaths. The the death penalty would substantially impair your ability district court properly rejected this claim. to do that, to follow the law.” Spencer then replied “Yes,” indicating that her beliefs prohibited her from C. Questioning on Specific Mitigating Factors following the law. (Trial Tr. at 351.) Dennis contends that his rights to a fair trial and fair Similarly, the trial judge asked juror Williams if she sentencing under the Eighth and Fourteenth Amendments could follow the law: “Our question to you is simply do were violated by the trial court’s refusal to permit him to ask you feel that you can go through that analysis, follow the questions about specific mitigating factors during voir dire. law and make that recommendation if the circumstances Specifically, Dennis claims that he was foreclosed from of this case warrant it?” Williams simply replied “No.” asking prospective jurors questions regarding Dennis’s age, (Id. at 368.) lack of prior criminal history, environment, and other mitigating factors. The trial judge ruled that specific Dennis v. Mitchell, 68 F. Supp.2d at 889. The district court mitigating factors shouldn’t be delved into, stating that “[t]he concluded that, based on these two exchanges, the trial court significant part is will they [the jurors] listen to what the acted properly in excluding these jurors.

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mitigating factors are and will they consider them. I think For example, the Supreme Court has required voir dire on that is the bottom line.” the issue of racial prejudice in situations of extreme racial tension, see Ham v. South Carolina, 409 U.S. 524 (1973) The Ohio Supreme Court found no error. (holding that voir dire on race was constitutionally required where defendant, a civil rights activist, claimed that he had In Proposition of Law No. 6, Dennis complains that he been framed because of his race); and interracial violence, see was denied due process when the trial court precluded Turner v. Murray, 476 U.S. 28 (1986) (holding that voir dire defense counsel from questioning prospective jurors regarding racial bias was constitutionally required in case about specific mitigating factors. However, as Dennis involving interracial violence). By contrast, the Supreme concedes, we rejected this same argument in State v. Court has ruled that the mere fact that the defendant was Wilson (1996), 74 Ohio St. 3d 381, 385-387, 659 N.E.2d black and the victim white was an insufficient basis, standing 292, 300-301. Similar to Wilson, the trial court here alone, to constitutionally require voir dire on racial bias. allowed adequate, detailed questioning of prospective Ristaino v. Ross, 424 U.S. 589, 598 (1976). In Mu-Min, the jurors to expose faults that would render a juror Supreme Court held that the defendant’s Sixth Amendment ineligible. No abuse of discretion is apparent, and, right to an impartial jury and his Fourteenth Amendment right therefore, this proposition of law is overruled. to due process were not violated by the trial judge’s refusal to question prospective jurors about specific contents of news State v. Dennis, 683 N.E.2d at 1105. reports to which they had been exposed. The Court held sufficient the trial judge’s question of whether any The district court held that the Ohio Supreme Court’s ruling information would affect the juror’s impartiality. Mu-Min, was not contrary to, or an unreasonable application of, clearly 500 U.S. at 431-32. established United States Supreme Court case law. Dennis v. Mitchell, 68 F. Supp. 2d at 890. In other words, the Constitution requires only that voir dire be conducted in a manner which ensures fundamental As the Supreme Court observed in Morgan, “[t]he fairness. Dennis has not made this showing. The record Constitution . . . does not dictate a catechism for voir dire, but reflects that, even though defense counsel were eventually only that the defendant be afforded an impartial jury.” limited in asking particularized questions, the trial court Morgan, 504 U.S. at 729. At the same time, integral to the permitted considerable latitude in the questioning of jurors Sixth Amendment right to an impartial jury “is an adequate during voir dire. Dennis’s counsel was permitted to ask a voir dire to identify unqualified jurors.” Id. (citations number of veniremen questions regarding mitigating factors omitted). Thus, the trial judge’s discretion to restrict without interference from the trial judge. The following questioning is nonetheless “‘subject to the essential demands colloquy with Juror Wiggins exemplifies counsel’s inquiry: of fairness.’” Id. (quoting Aldridge v. United States, 283 U.S. 308, 310 (1931)). See also Mu’Min v. Virginia, 500 U.S. MR. WHITNEY: Our legislature has told us– as the 415, 425-26 (1991) (stating that “[t]o be constitutionally Judge told you, Mr. Carroll told you, basically, that we compelled . . . it is not enough that such questions be helpful. have a two-part trial here. The first part has to do with Rather the trial court’s failure to ask these questions must guilt and innocence. The second part has to do with render the defendant’s trial fundamentally unfair”). penalty.

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Our legislature has told us that there are certain The trial court did not interfere with the questioning until circumstances under which, even if a person is found defense counsel’s colloquy with Juror Martin became more guilty of a capital offense, that a jury can render a verdict particularized. At that point the trial court cautioned simply for a life sentence. that “[o]nce again, without interrupting, the questions are tough. But one of the things that has to be understood here is Are you going to be able to accept what the Judge tells that the Court will instruct you on what mitigating factors you you regarding what we call mitigating factors, things like may consider.” The trial judge instructed counsel to keep age and things like mental defects, if there is any, things questioning as general as possible. like the upbringing of a person, those things? Can you take those things into consideration? In short, the record reflects that Dennis’s counsel was able to question the jurors regarding their ability and willingness JUROR WIGGINS: Yes. to follow the law in the penalty phase. The Ohio Supreme Court’s conclusion that the trial court “allowed adequate, MR. WHITNEY: Do you think they are important in detailed questioning of prospective jurors” is not an determining penalties? unreasonable determination of the facts in light of the record. Finally, Dennis failed to establish that the Ohio Supreme JUROR WIGGINS: Yes. Court’s ruling is contrary to United States Supreme Court precedent. The district court did not err in rejecting this MR. WHITNEY: What has been going on in this claim. man’s life before and how old he is and what kind of environment he came from. D. Peremptory Challenges Are those things going to be important to you in Dennis argues that the prosecutor’s use of peremptory passing on a verdict of death or life, if the Judge tells you challenges to exclude prospective jurors Dortch and they are important? McGinnis based on their views of the death penalty violated his Sixth Amendment right to an impartial jury. Both Dortch JUROR WIGGINS: Yes, I think so. and McGinnis indicated that they would be able to MR. WHITNEY: If the Judge says they are factors that recommend the death penalty if the law required it, but they you can consider, then you would consider them? also stated that they maintained religious beliefs against the death penalty. JUROR WIGGINS: Yes. The Ohio Supreme Court overruled this claim, holding that Defense counsel followed this pattern of questioning for a “apart from excluding prospective jurors based on gender or number of witnesses Later, defense counsel asked the panel race, . . . prosecutors can exercise a peremptory challenge for as a whole if any one had “any strong feelings about” any reason, without inquiry, and without a court’s control.” evidence “of a psychological nature, evidence of behavior, State v. Dennis, 683 N.E.2d at 1104 (citing state law). The social kind of evidence, psychological kind of evidence, district court agreed. Dennis v. Mitchell, 68 F. Supp. 2d at upbringing, discipline, lack of discipline.” 890-91.

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As the district court observed, the United States Supreme McGinnis and Dortch were proper. Moreover, the Court has held that peremptory challenges may be used for court’s ruling was not “clearly erroneous” under any reason so long as they are not based on immutable Hernandez. The facts and circumstances underlying the characteristics like race and sex. Id. at 891 (citing Holland prosecutor’s exercise of peremptories on the two v. Illinois, 493 U.S. 474 (1990)). Indeed, in Holland, the prospective jurors in issue do not appear to be racially Supreme Court expressly rejected the petitioner’s thesis that motivated. Both prospective jurors expressed opposition a prosecutor’s use of peremptory challenges to eliminate a to the death penalty on religious grounds. While, after distinctive group in the community deprives a defendant of a defense questioning, both prospective jurors eventually Sixth Amendment right to the “fair possibility” of a opined that they thought they could impose a death representative jury. Holland, 474 U.S. at 478. The Court sentence, the fact remains that both were still opposed to stated that “[a] prohibition upon the exclusion of cognizable a death sentence, the fact remains that both were still groups through peremptory challenges has no conceivable opposed to capital punishment on religious grounds. basis in the text of the Sixth Amendment, is without support in our prior decisions, and would undermine rather than The prosecutor explained that he exercised peremptory further the constitutional guarantee of an impartial jury.” Id. challenges on McGinnis and Dortch based on their views Furthermore, the Holland Court stated that peremptory of the death penalty. In addition, the prosecutor cited the challenges “best further[] the Amendment’s central purpose” fact that Dortch stated she had a cousin who had been of jury impartiality, “by enabling each side to exclude those murdered. Thus, the prosecutor gave a race-neutral jurors it believes will be most partial toward the other side, explanation for the peremptory challenges. Hill; . . . thereby ‘assuring the selection of a qualified and unbiased Hernandez. Accordingly, Proposition of Law No. 7 is jury.’” Id. at 483-84 (quoting Batson v. Kentucky, 476 U.S. without merit. 79, 91 (1986)). Dennis’s reliance on Witherspoon is misplaced because Witherspoon dealt with the practice of State v. Dennis, 683 N.E.2d at 1104. excluding for cause jurors who expressed conscientious or religious scruples against capital punishment. The district court held that the court properly applied Batson. In short, the Ohio Supreme Court’s opinion was not contrary to, nor an unreasonable application of, clearly In this case, the prosecution offered several neutral established Untied States Supreme Court precedent. explanations for the exclusion of McGinnis and Dortch. First, the prosecutor explained that he used peremptory E. Batson Claim challenges on McGinnis and Dortch based, at least in part, on their views of the death penalty. Both Dennis also complains that the exclusion of Dortch and prospective jurors expressed opposition to the death McGinnis, both African-Americans, violated Batson, supra. penalty on religious grounds. Though both prospective The Ohio Supreme Court concluded that Dennis failed to jurors eventually said they could impose a death prove a violation of Batson. sentence, both were nevertheless opposed to capital punishment. The trial court held that “with Batson in mind,” the state’s peremptory challenges of prospective jurors

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Moreover, the prosecutor noted that prospective juror This claim is without merit. Dortch had a cousin that had been murdered and a son that had been convicted of a serious crime. Also, the F. Ineffective Assistance of Counsel prosecutor explained that a prospective juror McGinnis was consistently late and the only one confused about the Dennis argues that his counsel were ineffective for failing jury procedures. to issue timely objections to the removal for cause of jurors Spencer and Williams and the use of peremptory challenges After directly observing the voir dire questioning, the to remove jurors McGinnis and Dortch. trial judge found the use of peremptory challenges was not motivated by impermissible considerations. The trial After reciting the Strickland test [Strickland v. Washington, judge stated that when Dortch and McGinnis were 466 U.S. 668 (1984)], the Ohio Supreme Court concluded that excused: “I consciously reviewed the circumstances Dennis had not shown prejudice. State v. Dennis, 683 N.E.2d relative to each of these two ladies and having no specific at 1108-09. The district court held that “Dennis was not request at that time to place it on the record, it was the deprived of any substantive or procedural right to which the Court’s determination that with Batson in mind, that at law entitles him.” Dennis v. Mitchell, 68 F. Supp.2d at 899. least in this Court’s opinion that these were acceptable challenges on behalf of the state.” The Ohio Supreme Court’s holding was not an unreasonable application of Strickland. Because the Ohio Dennis v. Mitchell, 68 F. Supp.2d at 891. Supreme Court concluded that none of the underlying challenges had merit, there is no cause and therefore no Batson requires the defendant to show that the prosecutor prejudice. The district court did not err in rejecting this exercised a peremptory challenge on the basis of race. If that claim. showing is made, then the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the juror. V. Conclusion Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. For all of the foregoing reasons, we AFFIRM the judgment Hernandez v. New York, 500 U.S. 352, 358-59 (1991) of the district court denying Dennis’s petition for writ of (summarizing three step analysis for a Batson claim). habeas corpus.

The Ohio Supreme Court’s decision was not an unreasonable application of Batson. The Ohio Supreme Court concluded that the trial court’s ruling was not “clearly erroneous.” The main reason the prosecutor struck the two jurors was their stated position on the death penalty. The trial court concluded that this explanation was credible. This finding is not clearly erroneous. See Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (stating that, in habeas corpus proceedings, a state court decision about prosecutor’s intent is a factual decision); see also 2254(e).