Sheppard v. Bagley

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0265p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

-

BOBBY T. SHEPPARD,

-

Petitioner-Appellant,

-

-

No. 09-3472

v.

,

>

-

Respondent-Appellee. -

MARGARET BAGLEY, Warden,

-

N

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 00-00493—Gregory L. Frost, District Judge;

Michael R. Merz, Magistrate Judge.

Argued: March 9, 2011

Decided and Filed: September 13, 2011

Before: BATCHELDER, Chief Judge; MERRITT and KETHLEDGE, Circuit

Judges.

_________________

COUNSEL

ARGUED: Melissa J. Jackson, FEDERAL PUBLIC DEFENDER’S OFFICE,

Columbus, Ohio, for Appellant. Robert E. Prather, OFFICE OF THE OHIO

ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Melissa J.

Jackson, Carol A. Wright, Allen L. Bohnert, FEDERAL PUBLIC DEFENDER’S

OFFICE, Columbus, Ohio, for Appellant. Robert E. Prather, Charles L. Wille, OFFICE

OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

KETHLEDGE, J., delivered the opinion of the court, in which BATCHELDER,

C. J., joined. BATCHELDER, C. J. (pp. 14–16), delivered a separate concurring

opinion. MERRITT, J. (pp. 17–22), delivered a separate dissenting opinion.

1

No. 09-3472 Sheppard v. Bagley Page 2

_________________

OPINION

_________________

KETHLEDGE, Circuit Judge. Sixteen years ago, an Ohio jury convicted Bobby

Sheppard of aggravated murder and sentenced him to death. He now asks us to grant

him a writ of habeas corpus ordering the state of Ohio to redo the penalty phase of his

trial. The district court denied Sheppard’s petition. We affirm.

I.

On August 19, 1994, Sheppard walked into a Cincinnati liquor store wearing a

mask and carrying a gun. He was eighteen years old at the time. With him was his

fourteen-year-old accomplice, Antwan Little, who had a t-shirt pulled over his head.

Sheppard grabbed the store’s owner, Dennis Willhide, and forced him to the ground.

Willhide did not resist. Little opened the register, grabbed the cash inside, and ran out

the door. Sheppard lingered for a moment, and then fired a single shot into the back of

Willhide’s head. The store’s security camera recorded the entire robbery.

Meanwhile, a store employee, Darren Cromwell, escaped out the back door.

He eventually managed to call the police. The police brought a tracking dog, who

followed the robbers’ scent to Sheppard’s nearby house. They promptly arrested

Sheppard and Little. After obtaining a warrant, the police searched the house and found

numerous loose bills in a kitchen closet and a black mask under a bed. The next day, the

police found the murder weapon and more cash in a bush at the house next door to

Sheppard’s.

Immediately after being arrested and read his rights, Sheppard exclaimed that he

“didn’t do a robbery.” Later at the police station, however, he admitted that he had gone

to the store and shot Willhide. At first, he said he acted in self-defense—Sheppard and

Little had tried to buy beer, Willhide pulled out something that Sheppard mistook for a

gun, and Sheppard shot him. But Sheppard eventually abandoned that story too and

confessed to a version of events similar to the one caught on tape. He insisted that he

No. 09-3472 Sheppard v. Bagley Page 3

did not intend to shoot Willhide and that he wasn’t “in [his] right mind” at the time, but

also admitted that he shot Willhide because he did not want Willhide to identify him.

Sheppard was charged with aggravated robbery and murder. He pled not guilty.

A jury convicted him as charged. During the penalty-phase trial, Sheppard argued that

his crime did not warrant the death penalty because he was paranoid schizophrenic, was

only eighteen, and had no significant criminal record. The jury thought otherwise,

concluding beyond a reasonable doubt that the aggravating circumstances of Sheppard’s

crime outweighed any mitigating factors. Thus, the jury recommended the death

penalty.

Shortly after reporting that verdict to the court, one of the jurors, Stephen Fox,

told a member of the prosecutor’s office that he had consulted an outside source, Dr.

Helen Jones, during the penalty phase of the trial. The prosecutor immediately brought

the matter to the trial court’s attention. The court and Sheppard’s counsel examined Fox

during an in camera hearing. Fox said that he had asked Jones for a brief definition of

paranoid schizophrenia, but that her answer had played no role in his deliberations.

After hearing Fox testify, the court found that Sheppard had suffered no prejudice from

Fox’s misconduct. The court thereafter sentenced Sheppard to death, as the jury had

recommended. Sheppard moved for a new trial, but the court denied the motion.

Sheppard appealed, advancing numerous claims under both state and federal law.

The Ohio Supreme Court rejected them all. State v. Sheppard, 703 N.E.2d 286 (Ohio

1998). Sheppard also filed a state collateral attack, which was likewise unsuccessful.

State v. Sheppard, 744 N.E.2d 770 (Ohio 2001) (per curiam).

Sheppard then filed this federal habeas petition. The district court sent the case

to a magistrate judge. Over the objections of the Warden, the magistrate held an

evidentiary hearing regarding Sheppard’s juror-misconduct claim. Numerous witnesses

testified at that hearing, including Fox, Jones, and Dr. Jeffrey Smalldon, Sheppard’s

mental-health expert from his original trial. The district court ultimately concluded that

none of Sheppard’s claims merited relief and denied the petition.

No. 09-3472 Sheppard v. Bagley Page 4

This appeal followed.

II.

We review de novo the district court’s denial of Sheppard’s petition. Tibbetts v.

Bradshaw, 633 F.3d 436, 441 (6th Cir. 2011). Sheppard filed his federal petition after

the effective date of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), so that statute governs his case. See Williams v. Taylor, 529 U.S. 420, 429

(2000).

A.

Sheppard first claims that we should grant the writ because Fox consulted an

outside source—Dr. Helen Jones—about the definition of paranoid schizophrenia during

the penalty phase of his trial. Sheppard presented a similar claim to the Ohio Supreme

Court, which rejected it. 703 N.E.2d at 291. A threshold question is whether we review

that decision under the standards set forth in 28 U.S.C. § 2254(d). That provision says

that we may not grant the writ with respect to a claim “adjudicated on the merits” in state

court unless the court’s decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law” or rested on an “unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” Id.

Although Sheppard’s claim was adjudicated on the merits in state court, he

argues that § 2254(d) does not apply here because he has presented new evidence in

support of his claim. In state court, the relevant evidence comprised Fox’s testimony

during the in camera hearing before the trial judge and two affidavits obtained from

Jones shortly thereafter. Based on that record, the Ohio courts found that what Jones had

told Fox did not influence him and was consistent with the evidence Sheppard presented

at trial. Sheppard now contends that he disproved these points at the federal evidentiary

hearing. There, Jones testified that she told Fox that schizophrenics were “out of touch

with reality” and that the disease was a “communication disorder.” According to the

testimony of Sheppard’s expert, Smalldon, those statements were wrong. And Fox

No. 09-3472 Sheppard v. Bagley Page 5

himself, after extensive cross-examination, finally said that he was “influenced” by

Jones’s explanation. Because none of this testimony was presented to the Ohio courts,

Sheppard argues that we should review his claim de novo rather than under the more

deferential standards set forth in § 2254(d).

Sheppard’s argument assumes that his new evidence was properly presented

under § 2254(e)(2). That section provides in relevant part:

If the applicant has failed to develop the factual basis of a claim in State

court proceedings, the court shall not hold an evidentiary hearing on the

claim unless the applicant shows that—

...

(B) the facts underlying the claim would be sufficient to establish

by clear and convincing evidence that but for constitutional error,

no reasonable factfinder would have found the applicant guilty of

the underlying offense.

Id. This provision “imposes a limitation on the discretion of federal habeas courts to

take new evidence in an evidentiary hearing.” Cullen v. Pinholster, 131 S. Ct. 1388,

1400-01 (2011). As interpreted by the Supreme Court, a petitioner who was not diligent

in developing the factual basis of his claim cannot obtain a federal evidentiary hearing

with respect to that claim unless he meets the conditions set forth in § 2254(e)(2)(B).

See Williams, 529 U.S. at 437. Sheppard does not contend he can meet those conditions,

so the question whether his federal evidentiary hearing was permissible under AEDPA

depends on whether he was diligent in developing the factual basis for his claim in state

court.

He plainly was not. To be diligent, a petitioner must make “a reasonable attempt,

in light of the information available at the time, to investigate and pursue claims in state

court.” Id. at 435. Sheppard did not do that here. All of the witnesses he presented in

the federal evidentiary hearing were available to Sheppard when his case was still

pending in the state trial court seven years before. Fox actually testified then, as noted

above; Smalldon was Sheppard’s own expert witness; and that Sheppard obtained an

affidavit from Jones after the in camera hearing and presented it to the trial court shows

that she too was available to testify. That Sheppard lacked subpoena power over these

No. 09-3472 Sheppard v. Bagley Page 6

witnesses does not matter, since they were plainly willing to testify without compulsion.

In short, Sheppard did virtually nothing to present to the Ohio courts the evidence he

presented to the federal courts seven years later.

“[F]ederal courts sitting in habeas are not an alternative forum for trying facts

and issues which a prisoner made insufficient effort to pursue in state proceedings.”

Pinholster, 131 S. Ct. at 1401. That is precisely the situation we have here. The

testimony in Sheppard’s federal evidentiary hearing was taken in violation of

§ 2254(e)(2). We therefore will not consider it. And we further note—contrary to a

second assumption underlying Sheppard’s argument—that there is no reason to think

that testimony given seven years after the relevant events is necessarily more accurate

or truthful than testimony given promptly after those events.

We turn to the merits of Sheppard’s juror-misconduct claim. Under

§ 2254(d)(1), we may grant the writ if the Ohio Supreme Court’s rejection of this claim

was contrary to clearly established Supreme Court precedent. Sheppard presents two

arguments as to why it was. First, Sheppard faults the court for not applying the

objective standard for juror-misconduct claims that we set out in Gall v. Parker, 231

F.3d 265 (6th Cir. 2000). That standard asks whether “a reasonable juror would likely

have considered” the extraneous evidence. Id. at 335. But that standard was not

Supreme Court precedent at the time of Sheppard’s direct appeal, nor had this circuit yet

announced that standard. That means we cannot grant the writ based on the Ohio

Supreme Court’s failure to apply it. See Pinholster, 131 S. Ct. at 1399. Instead, at the

time of the court’s decision, this circuit applied four principles for adjudicating juror-

misconduct claims. Those principles were: “‘(1) when a defendant alleges that an

unauthorized contact with a juror has tainted a trial, a hearing must be held; (2) no

presumption of prejudice arises from such a contact; (3) the defendant bears the burden

of proving actual juror bias; and (4) juror testimony at the [hearing] is not inherently

suspect.’” United States v. Walker, 1 F.3d 423, 431 (6th Cir. 1993) (quoting United

States v. Zelinka, 862 F.2d 92, 95-96 (6th Cir. 1988)). The Ohio Supreme Court cited

No. 09-3472 Sheppard v. Bagley Page 7

and applied all of those principles correctly here. So we cannot grant relief based on

Sheppard’s first argument in support of this claim.

His second argument is based on the Ohio Supreme Court’s observation that,

“[u]nder [Ohio] Crim.R. 33(A)(2), juror misconduct must materially affect an accused’s

substantial rights to justify a new trial.” 703 N.E.2d at 290. But that is merely a

statement of the state-law standard for a juror-misconduct claim; and since Sheppard

asserted this claim under both state and federal law, the court was entitled to cite both

state and federal law in its opinion. Thus, Sheppard is not entitled to relief under

§ 2254(d)(1).

Section 2254(d)(2) provides that we may grant the writ if the Ohio Supreme

Court’s decision “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” Sheppard apparently concedes that

the Ohio court’s decision was reasonable based on the state-court record, arguing instead

that it was unreasonable in light of the evidence presented in the federal proceeding.

That argument is contrary to the plain text of (d)(2), which looks only to the evidence

presented in the state-court proceeding. See Pinholster, 131 S. Ct. at 1400 n.7. And, as

already explained, we cannot consider the federal-hearing evidence at all. Sheppard is

not entitled to relief on his juror-misconduct claim.

B.

Sheppard next claims that the state court violated due process during the penalty

phase of his trial by excluding evidence regarding his family’s history of mental illness.

Sheppard sought to introduce medical records for his mother and his Uncle Darryl. The

trial court admitted approximately two pages of records for each relative, which

summarized their respective medical conditions. The court excluded the remainder of

the records. Sheppard now argues that the excluded records were relevant to his

mitigation argument, and that he had a constitutional right to present them to the jury.

Although Sheppard included this claim in his brief to the Ohio Supreme Court,

the court’s opinion did not specifically address it. Sheppard says that means we review

No. 09-3472 Sheppard v. Bagley Page 8

the claim de novo. But the Ohio court expressly stated that it was only addressing the

“issues that warrant discussion” and “summarily reject[ing]” the rest. 703 N.E.2d at 290.

This claim was among the rest; and “[w]here a state court’s decision is unaccompanied

by an explanation, the habeas petitioner’s burden still must be met by showing there was

no reasonable basis for the state court to deny relief.” See Harrington v. Richter, 131

S. Ct. 770, 784 (2011). So that is the showing Sheppard must make here.

The excluded records for Sheppard’s mother merely show that she was obese and

depressed, neither of which was a relevant mitigating fact. Moreover, the excluded

records are virtually identical to the records that were admitted. The exclusion did not

violate due process.

Darryl’s medical records were relevant, since they show that he suffered from

paranoid schizophrenia. That condition has a genetic component, so the fact that

Sheppard’s uncle was schizophrenic makes it somewhat more likely that Sheppard is too.

But that does not mean we can grant his petition. The admitted portion of

Darryl’s medical records plainly indicated that he suffered from chronic paranoid

schizophrenia, including auditory and visual hallucinations. Moreover, Smalldon

testified extensively regarding Darryl’s schizophrenia. Thus, the jury was fully aware

that Sheppard’s uncle had the condition that Sheppard himself claimed to have.

What the excluded records did say was that Darryl had some violent episodes

while in prison. Unlike his proofs with respect to schizophrenia itself, however,

Sheppard presented zero scientific evidence that a propensity for violence has some

genetic component. Thus, on the record before the state trial court, the excluded records

of Darryl’s violence were irrelevant to the issues presented in the penalty phase of

Sheppard’s trial.

Sheppard also contends that the excluded records could have rebutted the

prosecution’s cross-examination of Smalldon. But the prosecution never denied Darryl’s

schizophrenia. Instead, the prosecution challenged Smalldon for relying on anecdotal

accounts, provided by Sheppard’s mother, of other relatives’ mental problems. The

No. 09-3472 Sheppard v. Bagley Page 9

prosecution merely pointed out that those accounts may have been unreliable. The

excluded records would not have defeated that challenge.

Thus, the excluded records were cumulative regarding Darryl’s schizophrenia

and irrelevant regarding Darryl’s violence. Sheppard contends that he had a right to

admit them nonetheless, citing the Supreme Court’s decisions in Eddings v. Oklahoma,

455 U.S. 104 (1982), Green v. Georgia, 442 U.S. 95 (1979), and Tennard v. Dretke, 542

U.S. 274 (2004). Tennard is inapposite here because it was decided after the Ohio

Supreme Court decision in this case. See Pinholster, 131 S. Ct. at 1399. And we do not

think the other two cases should be so broadly read. In Eddings, the Court held that a

sentencing judge cannot categorically refuse to consider a capital defendant’s

background and upbringing; and in Green, the Court held that a capital defendant cannot

be barred from presenting his alibi evidence to a sentencing jury. Both of these cases

concerned the exclusion of an entire category of relevant mitigating evidence. They do

not impose on state courts a constitutional imperative to admit cumulative or irrelevant

evidence. (Neither does Tennard, for that matter.) And that is what the state court

excluded here. This claim too is meritless.

C.

Sheppard next claims that he is entitled to relief because the prosecutor engaged

in “widespread” misconduct during the penalty phase of his trial. Specifically, Sheppard

says that the prosecutor improperly criticized Sheppard’s choice not to testify, personally

disparaged Sheppard’s mental-health expert, and encouraged jurors to make their own

diagnosis of Sheppard’s mental condition from the surveillance video.

The Ohio Supreme Court characterized the prosecutor’s comments as

“troublesome.” 703 N.E.2d at 294. We have no quarrel with that characterization; but

what is more important is that the Ohio Supreme Court independently determined

whether the aggravating factors in Sheppard’s case outweighed the mitigating ones

beyond a reasonable doubt. It concluded that they did, and thus affirmed his sentence.

See id. at 296.

No. 09-3472 Sheppard v. Bagley Page 10

As Sheppard himself concedes, this reweighing of the relevant factors, if properly

done, cures any prosecutorial misconduct. See generally Lundgren v. Mitchell, 440 F.3d

754, 783 (6th Cir. 2006). Sheppard says that the reweighing was improper here.

Specifically, he argues that the court assigned insufficient weight to his youth, which he

says was contrary to Eddings v. Oklahoma, 455 U.S. 104 (1982). Under Eddings, in

considering whether to impose a death sentence, a court cannot “refuse to consider, as

a matter of law, any relevant mitigating evidence”; but the court can find such evidence

“wanting as a matter of fact” and discount it accordingly. See 455 U.S. at 114 (emphasis

in original).

Here, the Ohio Supreme Court determined that Sheppard’s age—eighteen at the

time of the crime—offered “little mitigation” because he was a “man of full legal age”

and an “adult with all the privileges and responsibilities of an adult.” Sheppard, 703

N.E.2d at 296. That is not a refusal to consider Sheppard’s youth “as a matter of law”;

it is a decision on how to weigh the factor.

Sheppard contends that it was unreasonable for the court to assign “little” weight

to his youth, since he could not have been any younger and still be eligible for the death

penalty. But this contention assumes that, for purposes of this factor, youth must be

measured strictly by chronological age. The Ohio courts see the factor as more

complicated than that. See, e.g., State v. Slagle, 605 N.E.2d 916, 931 (Ohio 1992)

(collecting cases). That is their prerogative; and that is what the Ohio courts did here.

In explaining the grounds for Sheppard’s sentence, the trial court noted that he was

“certainly not a typical 18 year old” because he had abused drugs, dropped out of school,

and planned the robbery and murder for which he was convicted. The Ohio Supreme

Court apparently agreed. None of this reasoning is contrary to Eddings.

To the extent that Sheppard is complaining about the brevity of the court’s

discussion of his youth, the U. S. Supreme Court has made clear that Sheppard still must

show that the state court’s bottom-line determination—here, that Sheppard’s youth did

not preclude a death sentence—was contrary to clearly established federal law. See

No. 09-3472 Sheppard v. Bagley Page 11

Richter, 131 S. Ct. at 784. Sheppard has not made that showing. The Ohio Supreme

Court’s reweighing cured whatever misconduct the prosecutor engaged in at trial.

D.

Sheppard next claims that the trial court improperly excused a prospective juror,

Joyce Wells. As an initial matter, the Warden contends that Sheppard defaulted this

claim by presenting only a state-law version of it to the Ohio Supreme Court. In his

brief to that court, however, Sheppard said, “[t]he trial court erred in imposing the death

sentence because the jury that convicted the appellant and recommended the death

sentence was improperly constituted in violation of appellant’s right to a fair trial under

the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United

States[.]” That reference was enough to avoid default, so we proceed to the merits. See

West v. Bell, 550 F.3d 542, 557-58 (6th Cir. 2008).

A trial court may exclude a juror for cause if her views on capital punishment

would prevent or substantially impair the performance of her duties as a juror in

accordance with her instructions and her oath. Wainwright v. Witt, 469 U.S. 412, 424

(1985). Sheppard contends that Wells displayed no such impairment during voir dire,

so the trial court violated his right to an impartial jury by excluding her. For good

reasons, however, we defer to the trial judge’s view unless it is “not fairly supported by

the record as a whole.” Gall, 231 F.3d at 330. Moreover, since the Ohio Supreme Court

summarily rejected this claim as well, AEDPA imposes a second layer of deference here.

See § 2254(d)(1); Richter, 131 S. Ct. at 784.

The Warden does not need that extra deference to prevail. Wells said repeatedly

that she could not impose the death penalty upon a defendant who repented of his crime.

As a result, the trial judge concluded that she had “set in advance the standards by which

she would refuse to impose the death penalty.” Sheppard asserts that this conclusion

was wrong because Wells eventually said that, “[i]f one of [the mitigating factors] would

be remorse or not, then I could deal with it in that way.” The trial court reasonably

interpreted that answer to mean that Wells would still treat repentance, standing alone,

as outcome determinative, rather than as one factor in the balancing process that Ohio

No. 09-3472 Sheppard v. Bagley Page 12

law requires. We have no basis to disturb the trial court’s first-hand judgment on this

point.

E.

Sheppard next argues that we should consider several claims that he failed to

raise on direct appeal. Sheppard must show cause and prejudice as to these claims

because they are procedurally defaulted. See Lundgren, 440 F.3d at 763. Some of these

claims relate to additional comments that the prosecutor made during the penalty phase;

but Sheppard cannot prove prejudice as to those claims in light of the Ohio Supreme

Court’s reweighing. So these claims fail.

Another omitted claim was that the trial court erroneously excluded certain

testimony from his mother and social worker. But Sheppard cannot show prejudice as

to this claim either. The two witnesses would have told the jury that Sheppard did not

deserve the death penalty, that he did not intend to kill Willhide, and that it was unfair

to sentence Sheppard to death when his accomplice, Little, only received seven years in

prison. But the testimony these witnesses did give at trial made clear to the jury that

they did not think Sheppard should receive the death penalty; and the jury was otherwise

fully aware of what Little’s sentence was. There is no reason to think that the jury would

have changed course based on the excluded testimony.

Sheppard next argues that his counsel on direct appeal was constitutionally

inadequate for failing to raise these claims. He previously raised this claim in his state

collateral attack, and the Ohio Supreme Court rejected it. 744 N.E.2d 770. The court

discussed the relevant Strickland standard, and held that Sheppard had not met it. See

id. at 771. For the reasons stated above, that decision was not unreasonable.

F.

Sheppard also argues that the jury instruction during the penalty phase of his trial

was contrary to Beck v. Alabama, 447 U.S. 625 (1980). The Supreme Court recently

upheld a similar jury instruction to the one given here and in doing so confirmed that

No. 09-3472 Sheppard v. Bagley Page 13

Beck does not apply to penalty instructions. See Bobby v. Mitts, 131 S. Ct. 1762 (2011).

So this claim is meritless.

G.

Finally, Sheppard argues that the cumulative effect of these errors rendered his

trial fundamentally unfair. Post-AEDPA, that claim is not cognizable. See Moore v.

Parker, 425 F.3d 250, 256 (6th Cir. 2005).

* * *

The district court’s judgment is affirmed.

No. 09-3472 Sheppard v. Bagley Page 14

_______________________

CONCURRENCE

_______________________

ALICE M. BATCHELDER, Chief Judge, concurring. I concur with the majority

opinion and write separately only to emphasize two points.

I. United States v. Remmer was abrogated by Smith v. Phillips

The dissent begins by stating “the law is clear, the facts are clear and our Court

is clearly mistaken in its view that defense counsel were not ‘diligent’”; he then asserts

that in Remmer the Supreme Court established “a clear procedure to deal with this kind

of ex parte communication.”

In a criminal case, any private communication, contact, or tampering,

directly or indirectly, with a juror during a trial about the matter pending

before the jury is, for obvious reasons, deemed presumptively prejudicial,

if not made in pursuance of known rules of the court and the instructions

and directions of the court made during the trial, with full knowledge of

the parties. The presumption is not conclusive, but the burden rests

heavily upon the Government to establish, after notice to and hearing of

the defendant, that such contact with the juror was harmless to the

defendant.

Remmer v. United States, 347 U.S. 227, 229 (1954). The dissent would accordingly

place the burden on the prosecutor to show that there was no bias, and bias is presumed

absent such a showing.

As the district court recognized, however, Remmer was abrogated in part by the

Supreme Court in Smith v. Phillips, which held that the defendant has the burden to show

that there has been actual prejudice. 455 U.S. 209, 215-17 (1982) (stating that “[t]his

Court has long held that the remedy for allegations of juror partiality is a hearing in

which the defendant has the opportunity to prove actual bias”; that Dennis v. United

States, a pre-Remmer case, “rejected [a] claim of implied bias” and held that

“[p]reservation of the opportunity to prove actual bias is a guarantee of a defendant’s

right to an impartial jury”; and that Chandler v. Florida, a post-Remmer case, held that

No. 09-3472 Sheppard v. Bagley Page 15

the “appropriate safeguard” against juror bias is the “defendant’s right to demonstrate”

that the ability of the jury to fairly adjudicate the case was compromised) (internal

citations and quotations omitted); see R. 131 (Op. & Order) at 62 (following Sixth

Circuit precedent that holds that Smith v. Phillips changed the Remmer rule); see also

United States v. Corrado, 227 F.3d 528, 536 (6th Cir. 2000) (recognizing that Smith v.

Phillips changed the Remmer rule and placed the burden on the defendant to show actual

prejudice from ex parte juror communication); Kowolak v. Scutt, 712 F. Supp. 2d 657,

691-92 (E.D. Mich. 2010) (same). Given the clear holding of Smith v. Phillips—and the

recognition by the district court and other 6th Circuit cases that Smith v. Phillips changed

the Remmer rule—it is clear that the district court did not unreasonably apply the

applicable Supreme Court precedent.

II. Cullen v. Pinholster provides an alternative bar to the consideration of

“new” evidence

The Supreme Court in Cullen v. Pinholster held for the first time that federal

habeas corpus “review under § 2254(d)(1) is limited to the record that was before the

state court that adjudicated the claim on the merits.” 131 S. Ct. 1388, 1398 (2011).

Although the majority opinion does briefly mention that Cullen v. Pinholster restricts

federal courts to the record considered by the state court in its merits review, I think a

more in-depth look at Pinholster would be helpful here. In Pinholster, the defendant had

twice adjudicated state habeas corpus petitions based on ineffective assistance of

counsel all the way to the state supreme court, and twice the state supreme court denied

the petitions on the “substantive” ground that they lacked merit. Id. at 1396-97. The

defendant filed a writ of habeas corpus in federal district court and was granted an

evidentiary hearing; he presented two new medical experts who offered new diagnoses

of the defendant’s mental state. Id. at 1397. The district court granted habeas relief

based on the new evidence and the 9th Circuit affirmed, holding that the new evidence

made the state court’s application of the Strickland standard objectively unreasonable.

Id. The Supreme Court reversed, reasoning that § 2254(d)(1) is “backward-looking” and

thus review under that provision “is limited to the record in existence at that same time

i.e., the record before the state court.” Id. at 1398. The Court further reasoned that “[i]t

No. 09-3472 Sheppard v. Bagley Page 16

would be strange to ask federal courts to analyze whether a state court’s adjudication

resulted in a decision that unreasonably applied federal law to facts not before the state

court.” Id. at 1399.

Pinholster directly controls the resolution of the juror misconduct ground under

§ 2254(d)(1). The Ohio Supreme Court considered Sheppard’s argument that Juror

Fox’s ex parte communications prejudiced Sheppard’s trial and rejected it on the merits,

holding that under Smith v. Phillips and Ohio law Sheppard had suffered no prejudice

from the juror misconduct. Ohio v. Sheppard, 703 N.E.2d 286, 290-91 (Ohio 1998).

The Ohio Supreme Court was not presented with evidence that Juror Fox had been

influenced by his ex parte communication, which indeed did not come to light until a

later federal district court evidentiary hearing. This Court is limited to those same

facts—that Juror Fox was not influenced by his ex parte contact—before the state court

in its review on the merits. Since even Sheppard does not appear to argue that the state

court’s analysis was “contrary to” or an “unreasonable application of” established United

States Supreme Court precedent based on the facts before it, affirmance of the district

court’s denial of habeas relief on the juror misconduct ground is clearly warranted.

No. 09-3472 Sheppard v. Bagley Page 17

_________________

DISSENT

_________________

MERRITT, Circuit Judge, dissenting. On the primary issue regarding the Fox-

Jones ex parte or extra-judicial conversation about “paranoid schizophrenia,” the law is

clear, the facts are clear and our Court is clearly mistaken in its view that defense

counsel were not “diligent” but were derelict or delinquent in pursuing the issue

zealously and intelligently. The fact is that both Fox and Jones told one story about their

conversation and its effect at a post-conviction hearing in state court and the opposite

story in federal court. And state law prevented the truth from coming out thereafter in

state court so that only the federal forum was available to hear the truth. My colleagues

have rendered the federal court powerless to do justice so that no court is now available

to enforce the Constitution.

On the law, in Parker v. Gladden, a habeas case arising from a state murder, 385

U.S. 363, 364 (1966), a bailiff, instead of a psychologist, discussed the case ex parte

with a juror. The Court outlined the law:

We believe that the statements of the bailiff to the jurors are

controlled by the command of the Sixth Amendment, made applicable to

the States through the Due Process Clause of the Fourteenth Amendment.

It guarantees that “the accused shall enjoy the right to a . . . trial, by an

impartial jury . . . [and] be confronted with the witnesses against

him. . . .” As we said in Turner v. Louisiana, 379 U.S. 466, 472-473

(1965), “the ‘evidence developed’ against a defendant shall come from

the witness stand in a public courtroom where there is full judicial

protection of the defendant’s right of confrontation, of cross-

examination, and of counsel.”

In Remmer v. United States, 347 U.S. 227, 229 (1954), a clear procedure to deal with this

kind of ex parte communication is set out to eliminate the danger of jury reliance on

extra-judicial evidence:

In a criminal case, any private communication, contact, or

tampering, directly or indirectly, with a juror during a trial about the

matter pending before the jury is, for obvious reasons, deemed

No. 09-3472 Sheppard v. Bagley Page 18

presumptively prejudicial, if not made in pursuance of known rules of the

court and the instructions and directions of the court made during the

trial, with full knowledge of the parties. The presumption is not

conclusive, but the burden rests heavily upon the Government to

establish, after notice to and hearing of the defendant, that such contact

with the juror was harmless to the defendant.1

These legal principles strictly forbidding ex parte contacts and extra-judicial

evidence, like the Fox-Jones telephone conversation, are also strictly enforced in trials

in other countries in the Western world. Such unconfronted, uncross-examined

statements are recognized as particularly unreliable. As in this country, the reasons to

forbid extrinsic information from consideration by the jury also have to do with all of

the dangers (perception, sincerity, misunderstanding, etc.) of relying on uncross-

examined extra-judicial statements. See, e.g., Farhi v. France, 48 Eur. Ct. H. R. 34

(2007) (right to a hearing by an impartial jury had been violated under Article 6 (1) of

the European Convention on Human Rights by ex parte or extra-judicial contacts and

1

I find no language whatever in Smith v. Phillips, 455 U.S. 209 (1982), that supports the statement

of our concurring colleague that the Remmer case is no longer good law. As the D.C. Circuit said in

United States v. Butler, 822 F.2d 1191, 1195 (1987), the Supreme Court and the Courts of Appeals, except

for the Sixth Circuit, are in accord:

The proper legal standard for evaluating the effect of an alleged juror exposure to

extra-judicial information, both sides here seem to agree, is that “[i]rrespective of the

source of the alleged taint, it is the burden of the government to demonstrate that the

jury was impartial, and that extrinsic information did not contribute to the verdict.”

Brief for Appellee at 12.*

*This traditional approach was laid down in Remmer v. United States,

347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (1954). In United

States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984), cert. denied, 469

U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985), the Sixth Circuit

held that the Supreme Court’s subsequent opinion in Smith v.

Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982),

reinterpreted Remmer so as to shift the burden of showing prejudice

to the defendant. No other federal appellate court, however, has

departed from Remmer’s statement of the legal standard for

evaluating the effect of an improper judicial contact. See, e.g.,

United States v. Littlefield, 752 F.2d 1429, 1431-32 (9th Cir. 1985)

(criticizing Pennell); Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir.

1984); United States v. Webster, 750 F.2d 307, 338 (7th Cir. 1984);

cert. denied, 471 U.S. 1106, 105 S.Ct. 2340-41, 85 L.Ed.2d 855-56

(1985); United States v. Delaney, 732 F.2d 639, 642 (8th Cir. 1984);

United States v. Hines, 696 F.2d 722, 730-31 (10th Cir. 1982);

Hobson v. Wilson, 737 F.2d 1, 47-49 (D.C. Cir. 1984); (civil case);

cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985);

Haley v. Blue Ridge Transfer Co., 802 F.2d 1532, 1535 & n.5 (4th

Cir. 1986) (civil case) (distinguishing Phillips). We think that

Remmer’s allocation of the burden remains the law.

No. 09-3472 Sheppard v. Bagley Page 19

applicant granted a new trial); Gregory v. United Kingdom, 25 Eur. Ct. H.R. 577, 578

(1997) (same). That a jury must deliberate in private, free from outside interference, is

a principle with deep roots in English common law. The jury should decide the case

exclusively on the evidence presented in the course of the trial, otherwise the verdict

may be tainted. See R. v. Pan, [2010] 2 S.C.R. 344 (Can.).

* * *

The facts associated with the Fox-Jones ex parte conversation are that on

May 18, 1995, the jury returned its death sentence against Sheppard. On May 30, 1995,

the trial court conducted an in- chambers hearing when it learned from the prosecution

that, during the trial, Fox had called Jones, a psychologist, to discuss the meaning and

characteristics of “paranoid schizophrenia,” the defendant’s main defense against a death

sentence. At that hearing, Fox testified that the conversation did not influence him in

any way; when asked whether he discussed the psychological testimony with the other

jurors, Fox answered, “I may have, but like I said, it was, there were a lot of other

things.” Thus, at this hearing he testified that his conversation had no effect on his vote

for the death penalty and that he “may” have discussed the conversation with other

jurors. On motion for a new trial, the state court accepted Fox’s testimony that the

communication with Jones had no effect or influence on his vote, while recognizing that

the ex parte conversation was highly improper. The court denied the motion for a new

trial, and the Ohio appellate courts accepted and affirmed this ruling on the ground that

it had no influence. As will be explained below, under Ohio law this ruling in the

appellate courts was final and defense counsel could not attack it collaterally in state

court.

When the case came to federal court on Sheppard’s request for federal habeas

relief, Fox completely changed his no-influence testimony. He testified as follows:

Q. I don’t believe you answered my question. You do agree with

me that the information that Ms. Jones gave to you influenced your

verdict, is that correct?

A. I’m sure to some degree, small degree.

No. 09-3472 Sheppard v. Bagley Page 20

Q. So the answer’s yes?

A. Yes.

Q. And, again, to use your words, you agree that it contributed

to your verdict of death; is that correct?

A. If that’s, yeah, if that’s what I said.

Q. Well, irrespective whether that’s what you said, as you sit

here today you agree it contributed to your verdict?

A. Yes, it must have.

(J.A. 602-03.)

Jones, the psychologist, also changed her testimony from her earlier testimony

immediately after the death verdict. She testified in state court that she had read the

testimony of Sheppard’s expert psychiatric witness, Dr. Smalldon, and that what she told

Fox about “paranoid schizophrenia” was completely consistent with the expert witness’s

testimony. At the federal hearing, she testified that this was not true and that she did not

know what the expert said in his testimony, nor did she know whether what she said

earlier was consistent with Smalldon’s testimony. Smalldon then testified at the federal

hearing that Jones’s statements to Fox in the ex parte phone conversation were

completely inconsistent with his testimony and that his statements to the jury describing

paranoid schizophrenia were quite different from what Jones told Fox. (J.A. 653-57;

J.A. 774-88.)

* * *

In deciding the Fox-Jones issue, it appears that our Court has asked a proper

question regarding juror Fox’s admission in the federal court habeas hearing, which is

completely at odds with his previous state testimony: “Whether he [defense counsel]

was diligent in developing the factual basis for his claim in state court”? (Maj. Opin.,

supra, p. 5) My colleagues recognize that the constitutional question may turn on this

diligence issue because a lack of due diligence in developing the issue in state court may

No. 09-3472 Sheppard v. Bagley Page 21

trigger procedural default.2 A lack of due diligence could prevent the federal court from

considering the admission that Fox gave in federal court that he was in fact influenced

to vote for the death penalty by the ex parte, extra-judicial conversation.

Our Court’s error is that it gives precisely the wrong answer in this question of

whether there was due diligence. It answers that defense counsel was derelict and lacked

diligence in bringing the question forward without explaining how or why it considers

post-conviction counsel to be unprofessional in this regard. The correct answer should

be that defense counsel were exceedingly diligent in bringing out this fact that renders

the death verdict unconstitutional. Defense counsel’s diligence is demonstrated by

continuing to press the point even though counsel was stuck in state court with Fox’s

statements that he was completely uninfluenced by his conversation with Jones. This

no-influence statement was accepted at all levels in the state court, and Ohio procedural

rules prohibited any further evidentiary hearings or development of a factual basis in

state court.

Defense counsel was thwarted in state court by an Ohio procedural rule of

finality. Ohio law provides that “relief under R.C. 2953.21 [post-conviction relief] is

not available where the defendant has litigated the issue by way of motion for a new trial

or upon appeal,” State v. Walden, 483 N.E.2d 859, 866, 19 Ohio App. 3d 141, 146

(1984) (a criminal case involving jury misconduct). Without a state forum, defense

counsel did not give up, however, and should be commended for diligence, not criticized

for raising and cross-examining Fox and Jones in the first federal forum available. As

it happened, only in federal court could defense counsel show the cover up by Fox and

Jones of the nature of their ex parte conversation. That is precisely the reason we have

federal habeas corpus relief established in Article I, § 9 of the Constitution, the

“suspension” of which is expressly forbidden. There is nothing in any federal statute or

case that I can find that relieves a federal habeas court in these circumstances from

considering the federal testimony and concluding that the rule of Parker v. Gladden,

2

28 U.S.C. § 2254(e)(1)(A) allows a federal evidentiary hearing to consider evidence “discovered

through the exercise of due diligence.”

No. 09-3472 Sheppard v. Bagley Page 22

supra, was violated. A federal habeas court does not have the constitutional authority

or discretion to excuse a state from complying with Due Process and Article I, § 9. In

the end, this is a rather simple case calling for the issuance of the writ requiring a new

trial at the sentencing phase of the case. A few months before Sheppard committed this

crime, the facts show that he suffered a serious injury to his head that may well have

produced the mental condition that led him to change his personality and commit this

crime. Had Fox, and perhaps other jurors, not been distracted from the actual expert

testimony by the Fox-Jones ex parte conversation, the death penalty may not have been

imposed.

* * *

Beyond and independently of this type of standard legal analytic reasoning, there

are deeper constitutional and ethical reasons to keep capital punishment, life or death,

from turning purely on the quality — the “due diligence” — of counsel for the prisoner.

The failure of counsel should ordinarily be regarded as “cause and prejudice” to

overcome procedural problems that would otherwise default lawyer error into death,

obliterating the prisoner’s right to a constitutionally correct trial. The Supreme Court

has put the constitutional “cause and prejudice” standard into the following language:

In all cases in which a state prisoner has defaulted his federal claims in

state court pursuant to an independent and adequate state procedural rule,

federal habeas review of the claims is barred unless the prisoner can

demonstrate cause for the default and actual prejudice as a result of the

alleged violation of federal law. . . .

Coleman v. Thompson, 501 U.S. 722, 750 (1991). A lawyer’s “lack of diligence” in

handling the case — if that is what led to a failure to correct a constitutionally defective

trial — meets the constitutional test of “cause and prejudice.” And surely no American

judges — no matter how much they may favor the death penalty as a matter of

retributive justice — would want an individual to be executed as the result of a

constitutionally defective trial caused by the prisoner’s lawyer.