Argued: April 23, 2013
Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:07-cv-1776—Sara E. Lioi, District Judge.
Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant/Cross-Appellee.
Alan C. Rossman, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellee/Cross-Appellant.
Justin Morgan Lovett, Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellant/Cross-Appellee.
Alan C. Rossman, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, David L. Doughten, Cleveland, Ohio, for Appellee/Cross-Appellant.
Before: COLE, GRIFFIN, and KETHLEDGE, Circuit Judges.
COLE, Circuit Judge.
John Drummond was convicted of the aggravated murder of Jiyen Dent, Jr. and sentenced to death. He unsuccessfully pursued post-conviction state habeas proceedings and subsequently filed a petition for a writ of habeas corpus in federal district court. The district court conditionally granted the writ in part, holding that the state trial court violated his Sixth Amendment right to a public trial and that the Supreme Court of Ohio unreasonably applied clearly established Supreme Court law when it held otherwise. The district court denied the petition as to all other grounds for relief. Marc Houk, a warden for the state of Ohio, appeals the district court's partial grant of the writ. Drummond cross-appeals the district court's denial of the writ on two grounds: (1) the state trial court proceedings violated his Confrontation Clause right to cross-examine witnesses, and (2) his counsel was ineffective during the penalty phase of his trial. For the reasons that follow, we affirm the judgment of the district court.
At approximately 11:25 p.m. on March 24, 2003, Drummond fired eleven shots into the home of Jiyen Dent Sr. in Youngstown, Ohio during a drive-by shooting. One of the shots killed three-month-old Jiyen Dent Jr.
On April 3, 2003, the state of Ohio indicted Drummond on seven counts: aggravated murder with prior calculation and design; aggravated murder of an individual under thirteen years of age; two counts of attempted murder; two counts of felonious assault; and improperly discharging a firearm. The two counts of aggravated murder each contained two death penalty specifications: (1) a course of conduct involving the purposeful killing of, or attempt to kill, two or more persons, Ohio Rev. Code Ann. § 2929.04(A)(5), and (2) murder of a child under thirteen years of age, id. § 2929.04(A)(9).
Presentation of evidence at the jury trial began on February 2, 2004. At trial, James "Cricket" Rozenblad, Yaraldean Thomas, and Nathaniel Morris testified for the prosecution. Rozenblad testified to overhearing Drummond, Wayne Gilliam, and another man at a party discussing a "guy moving into [their] neighborhood [who] could have had something to do with the death of [fellow Lincoln Knolls Crips member] Brett Schroeder." Thomas testified to seeing Drummond whisper with Gilliam, and at the conclusion of their discussion, hearing Drummond say, "It's on." According to Thomas, Drummond left the party and reappeared shortly thereafter with an assault rifle. Fifteen minutes later, the fatal shots were fired. Morris, an inmate in the same cellblock as Drummond in the Mahoning County jail, testified that he had overheard Drummond tell a fellow inmate that "he didn't meant [sic] to kill the baby; he was trying to get at somebody else . . . ."
A number of other witnesses testified for the prosecution. Although some of these witnesses reported hearing gunshots, seeing Drummond, Gilliam, and Gilliam's car near the scene of the shooting, and seeing Drummond with a gun, no other witnesses reported hearing Drummond make any incriminating statements or otherwise indicate that he participated in the planning of the offense. A search of Drummond's house yielded ammunition consistent with the shooting and a variety of items tying him to the Lincoln Knolls Crips and to Schroeder.
A jury found Drummond guilty on all counts and specifications. The trial court sentenced Drummond to death, and the Supreme Court of Ohio affirmed his conviction and sentence on direct appeal. See State v. Drummond, 854 N.E.2d 1038, 1078 (Ohio 2006). Drummond then filed a petition for post-conviction relief in state trial court, which was denied on summary judgment. The Seventh District Court of Appeals affirmed the trial court's decision, State v. Drummond, No.05 MA 197, 2006 WL 3849295, at *23 (Ohio Ct. App. Dec. 20, 2006), and the Supreme Court of Ohio declined to accept the case for review. State v. Drummond, 866 N.Ed.2d 512 (Table) (Ohio 2007).
Drummond then filed a petition for a writ of habeas corpus in federal district court in October 2007, alleging thirteen grounds for relief. In December 2010, the district court granted the writ in part, holding that the state trial court violated Drummond's Sixth Amendment right to a public trial. Drummond v. Houk, 761 F.Supp.2d 638, 680 (N.D. Ohio 2010). The district court denied the writ as to all other grounds for relief. Id.
Houk now appeals the district court's partial grant of the writ. Drummond cross-appeals the district court's denial of the writ on the grounds that (1) the state trial court proceedings violated his constitutional right to cross-examine witnesses, and (2) his counsel was ineffective during the sentencing phase.
We review the district court's grant of a writ of habeas corpus de novo, but we review any factual findings for clear error. Carter v. Bell, 218 F.3d 581, 590 (6th Cir. 2000). The factual findings of the state court "are presumed [to be] correct and may be rebutted only by clear and convincing evidence." Bray v. Andrews, 640 F.3d 731, 734 (6th Cir. 2011) (internal quotation marks omitted).
Because Drummond's habeas petition was filed in 2007, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 22 U.S.C. § 2254, applies and we may not grant relief "unless . . . the . . . state court's decision was contrary to" then clearly established Supreme Court law; "or . . . it involved an unreasonable application of such law; or . . . it was based on an unreasonable determination of the facts in light of the record before the state court." Harrington v. Richter, 131 S.Ct. 770, 785 (2011) (citations omitted) (internal quotation marks omitted); see also 28 U.S.C. § 2254(d). Supreme Court cases decided after the state court decision may not be considered by a reviewing court. See Williams v. Taylor, 529 U.S. 362, 412 (2000).
Under § 2254(d)(1), we may grant the writ if we find that the state court came to "a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decide[d] a case differently than [the Supreme Court] on a set of materially indistinguishable facts." Williams, 529 U.S. at 412-13. The "clearly established Federal law" language of § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of" the Supreme Court. Id. at 412. Relief will be granted if the state court "identifie[d] the correct governing legal principle . . . but unreasonably applie[d] that principle to the facts" of the case. Id. at 413. The facts of a relevant Supreme Court case need not be identical to the case in which the law is being applied. Id. at 407 (holding that it is an unreasonable application of Supreme Court "precedent if the state court . . . unreasonably refuses to extend [a legal principle] to a new context where it should apply.").
In conducting our review the "proper inquiry" is "whether the state court decision was objectively unreasonable and not simply erroneous or incorrect." Keith v. Mitchell, 455 F.3d 662, 669 (6th Cir. 2006) (citing Williams, 529 U.S. at 409-11.) In other words, "in applying the 'unreasonable application' clause, a reviewing court must be careful not to substitute its own judgment for that of ...