*1 funds 32.1(b). total he received from the R. sum, In because there is not a funds received from financial advisors’ “radical increase in the maxi- statutory (Tr. 5) clients. 135 at R. Trial Vol. mum sentence” when we compare the stat- 2167). (Page ID # These commissions utory maximum sentences for money laun- were paid “for bringing the business to dering and mail fraud, or wire under this 2212). NFOA.” Id. at (Page ID # In- present Circuit’s law I must concur deed, promotional Olive created a video to judgment. advisors, show financial advertising that
“[e]xchang[ing] client’s annuity indexed
for a annuity new at the accumulated val-
ue” had two benefits: “Your client receives
a tax you deduction and earn 9%.” R. 131 (Tr. 1)
at 104-05 Trial Vol. ID (Page 1128-29).
# Thus, depended upon NFOA
these financial advisors bring NFOA clients, the commission payments to the TRIMBLE, James Petitioner- part advisors were of the scheme to de- Appellee/Cross-Appellant, fraud, and those commissions were “essen- tial expenses” of the scheme. Because this is a classic example of “the merger prob- BOBBY, Warden, David Respondent-
lem,” the fraud and money-laundering con-
Appellant/Cross-Appellee.
victions
merge,
should
and there is no
need to consult the legislative
history
13-3381,
Nos.
13-3455.
these
Garland,
statutes. See
The majority and I therefore agree that Sixth Circuit. Olive’s money-laundering fraud convic- Argued: Dec. 2014. present tions a merger problem. I would also conclude that the charging double Decided and Oct. Filed: 2015. plain error government because the quite clearly indicted Olive in the money-laun-
dering count for the payment of essential
expenses of his fraud scheme and never
presented evidence that paid Olive Heuer-
mann commission profits with the of his
fraud addition, scheme. I believe that charging double affected Olive’s sub-
stantial rights because exposed Olive was
to the possibility of an additional ten-year
prison term as a result of the money- conviction,
laundering and the district
court actually used the money-laundering
conviction to add sixty months to Olive’s
sentence.
Crosgrove,
See
Nevertheless, I am bound Kratt and its
progeny until Supreme Court or this
court sitting en bane overrules it. 6th Cir.
ment of a female college student, held her hostage, and eventually killed her with a handgun. Overwhelming evidence estab- lished guilt, including his admis- guilt sions of to two family members and the police, significant forensic ty- evidence ing murders, him to the eyewitness testimony. A jury convicted him of the three murders and the trial judge, upon the jury’s recommendation, imposed three death sentences. The district court condi- tionally granted Trimble habeas relief be- it cause determined that an juror alternate who was later empaneled during the penal- ty phase of Trimble’s trial could not set ARGUED: Madden, E. Thomas Office aside his personal views on the pen- General, Ohio Attorney Columbus, alty and apply the law. Because we con- Ohio, for Appellant/Cross-Appellee. Jo- clude that the alternate was not an seph Wilhelm, E. Office of the Federal *5 automatic-death-penalty juror, and that Defender, Public Cleveland, Ohio, for Ap- Trimble’s claims other meritless, are we pellee/Cross-Appellant. ON BRIEF: REVERSE the district court’s granting of Madden, Thomas E. Stephen Maher, E. the on writ the claim bias AF- and Office of the Attorney General, Ohio Co- FIRM the district court’s denial of habeas lumbus, Ohio, for Appellant/Cross-Appel- relief on claims Trimble’s of prejudicial lee. Joseph Wilhelm, E. Rossman, Alan C. admission of weapons and prosecutorial Office of the Federal Defender, Public misconduct. Cleveland, Ohio, Kathryn Sandford, L. Of- fice of the Defender, Ohio Public Colum-
bus, Ohio, I. for Appellee/Cross-Appellant. 21, 2005, On January James Earl Trim- SILER, Before: BATCHELDER, and ble shot and killed his live-in girlfriend,
CLAY, Circuit Judges. Bauer, Renee and her seven-year-old son, Bauer, Dakota with an AR-15 rifle. assault BATCHELDER, J., delivered the shot Trimble Renee once in the head and opinion of the in SILER, J., court which eleven times in hand, the back and the and joined, CLAY, J., joined and part. head, Dakota six times in neck, the CLAY, 784-91), (pp. J. delivered a torso. Soon the shootings, after separate opinion concurring part mother called him at the house he had dissenting in part. victims, shared with two the con- he fessed to the killings. Trimble’s mother OPINION called Trimble’s brother and asked him to BATCHELDER, M. ALICE Circuit contact Trimble. Trimble again confessed Judge. killing to Dakota, Renee and this time to James Earl Trimble shot and his Upon brother. hearing this informa- killed then-girlfriend tion, and her seven- Trimble’s brother told Trimble to re- year-old son with an assault rifle. Later main in the house while he the called night, same he broke into the apart- police. jail, Trimble being transported After not heed did
Unfortunately, Trimble confessed rights and his Miranda foot waived left his home He advice. brother’s he Although murders. three residence, to the where nearby at a up and ended killing not remember he did claimed that at of the home occupants held two he Bauer, he admitted Dakota Renee and minutes, eventually but few gunpoint else was “no one have because he must Leaving this go unharmed. them let that because woods, He later asserted there.” nearby the house, through ran he deprivation sleep a combination upon the stumbling apartment randomly control addiction, had simply lost drug col- Positano, twenty-two-year-old Sarah he had Trimble contended himself. hostage. student, he then took whom lege Positano, that the but kill intended to not PM, pre- 11:18 at called 9-1-1 Positano po- when the accidentally discharged gun in order request, at Trimble’s sumably him. startling apartment, lice entered re- police; she to the demands relay his trial, however, Overwhelming evidence her home entered had Trimble ported that police had entered' that the indicated police attempted shoot her and would once, when SWAT only apartment operator told She apartment. raid body and arrested Positano’s team found no a “9-mm had pistol that Trimble AR-15 assault found the Trimble. Police phone Po- Trimble took safety.” handgun at the 9-mm Siga Sauer rifle and ham- declared, got “I have sitano and residences, respective- Positano Bauer and pulled. So trigger back and mer held the crime casings at matched ly. Police attempt or even shoot me cops if the weapons. two these scenes to trigger here, go of the I will let break murder apparent dispute does During the girl will die.” innocent him. belonged to weapons Trimble, you “could call, asked Positano on three A indicted grand my head?” gun to put *6 murder, all with aggravated of counts perime- a Meanwhile, police established three well as as death specifications, re- and apartment Positano’s ter around of feloni- two counts kidnapping, of counts phone on the with Trimble connected assault, aggravated count of and one ous talking with hostage negotiators, through Trim- specifications. firearm battery with call last topics. The Trimble about various trial, the state guilty. At pleaded ble Positano telling in Trimble’s culminated of Trimble’s evidence extensive presented cops if the home going she would be that confes- including the guilt, aforementioned A seconds up few not “come here.” did evidence, eyewitness sions, forensic nego- whom later, another Positano —with on defense focused testimony. phone contact-^ maintained tiator had suggested killings occurred why the started shot” and “I’ve been screamed jury found culpability. decreased thereafter, Shortly breath. gasp for charges. on all guilty Trimble lost the authorities midnight, the around pro- guilt, case finding After the the hos- Apparently, phone connection. mitiga- In phase. shouting ceeded to not hear the tage did negotiator that he tion, evidence introduced breath, Trimble throughout because gasping or for drug bipolar disorder to believe suffered continued night police addiction, good was morn- and alcohol The next was alive. Positano worker, gave that he assis- dependable raided the however, team ing, SWAT church elderly of his members ar- tance body, and found Positano’s apartment, mother, remorse- and that he was and his rested Trimble. ful. provided The state aggrava- several juror-bias on claim, the admission-of- ting factors: that he murdered his victims weapons claim, and the prosecutorial-mis- part a course of conduct involving the conduct claim. The appeals Warden purposeful killing of two or people, more district grant court’s of habeas relief on that he killed a child under the age of juror-bias claim, while Trimble cross- thirteen, and that he murdered Positano appeals the district court’s denial of habeas while committing the kidnap- offenses of relief on the other two claims.
ping
aggravated
burglary. Ultimate-
ly,
recommended death sentences
II.
for each of the killings, which the trial
We review de novo a district
court imposed.
court’s legal conclusions and mixed ques
timely
appealed. The Ohio Su
fact,
tions of law and
and review its factual
preme Court denied relief
all grounds
on
findings for
O’Dea,
clear error. Lucas v.
and affirmed Trimble’s death sentences.
(6th
412,
Cir.1999).
F.3d
Under
Trimble,
State v.
297,
122 Ohio St.3d
911 the Antiterrorism and Effective Death
(2009).
N.E.2d 242
The United States Su Penalty
(“AEDPA”),
Act
a district court
preme Court denied certiorari. Trimble v. may
grant
petition
habeas
with re
Ohio,
130 S.Ct.
175 spect to any claim that
adjudicated
(2009).
L.Ed.2d 526
Trimble also sought
the merits in the state courts unless the
post-conviction relief, which the trial court
adjudication of the claim
“resulted
denied. The Ohio Court
Appeals
af
to,
contrary
decision
or involved
firmed,
Trimble,
State
774 asking words, I’m what Q. In other court in the State presented the evidence you just because that 2254(d)(2). you do believe you, To § 28 U.S.C. proceeding.” that stage the trial guilty him found relief, prisoner “a state habeas obtain to the subject automatically now he’s ruling on court’s state that the show must death penalty? court in federal being presented the claim that there justification lacking in was so guilty? him A. If I find compre understood well an error you now be- stage do trial Q. At the any possi beyond law existing hended to the automatically subjected he’s lieve ' Har disagreement.” fairminded bility for death penalty? 86, Richter, 131 S.Ct. v. rington A. Yeah. (2011). This 786-87, 624 178 L.Ed.2d Q. do? You recently re standard, Supreme Court should. people he If killed three A. circuit, to meet.” is “difficult minded the law in Ohio you Q. understand Do — U.S.-, Woodall, v.White that decision you don’t make is that (2014) (quot L.Ed.2d that? time, you understand do — -, Lancaster, U.S. ing Metrish Yeah, I understand. it? A. isHow 185 L.Ed.2d 133 S.Ct. omitted). (internal (2013)) marks quotation asked Juror then prosecutor The on death opinion personal
about his thought juror said that he The penalty. III. “if be there” because should “the habe- granted court district The be allowed why you take a life should you par- that a it determined as relief because himto explained prosecutor to live?” pen- “automatic death juror was an ticular you Ohio, is that again the' law “in juror.” The Warden contends alty to live” you may be allowed take a life this claim defaulted procedurally Ju- sentencing phase again. explained alternative, the district or, in the “yeah” several answered ror then analysis. AEDPA in its erred to wheth- prosecutor as from the questions judge’s instructions he would follow er A. he could vote and whether sentencing on penalty. death dire, judge the trial During voir its cross-examination began The defense juror asked for both sides counsel person- by following up on his of Juror 139, many questions about Juror question, penalty. the death Juror al views of and the role on the death his views really thought “never he had noted that start, affirmed to Juror 139 juror. To penalty be- views about” his on the death his views judge that the trial had ever time” he “is the first cause this substantially impair his penalty would He then them. speak about been called duty perform ability as a without guilty, “if you’re *8 volunteered on the the evidence could consider doubt, you if some- then take a reasonable mitigating circumstances aggravating go you your life should body’s life — ques- began his prosecutor The factors. Fur- to live allowed either.” shouldn’t be the dual- juror by explaining tioning of the on this by the defense questioning ther in Ohio. sentencing structure capital phase exchange: following point elicited that he understood how Juror affirmed things that of the Q. that is one Then, And following process worked. that, if you felt I—I a note of made exchange place: took you a person’s take you life shouldn’t be A. You mean— able to live. Q. Whatever the Court would you tell A. An eye for eye, an all that. is, the law you can follow the law if the Q. your That is feeling? Court you would tell what is, the law can A. Yeah. you follow that? ' Q. That is you how look at your posi- A. Yeah. juror tion aas particular this case? Q. Okay.
A. Yeah. goes What around comes A. is, Whatever the yeah. law around. At point, this the trial judge released Ju- Q. you So if were seated juror as a ror 139 from the courtroom. this particular you ease would come into Defense counsel process immediately whole objected set, mind Juror 139 as an you is what automatic death penalty believe regarding the juror. The penalty? overruled defense coun- objection, sel’s finding juror that “the indi- A. If he’s guilty. cated a willingness to follow the Court’s After counsel for the again defendant de- instructions to the law as provided,” and tailed the two-step sentencing structure juror that “the indicated he will consider for Juror the following exchange took and weigh the factors in mitigation [and] place: require the prove State to beyond a rea- Q. you After have made that determi- sonable doubt the aggravating circum- nation in the stage, first you then move stances.” to the second stage, you understand Each that? side had six peremptory chal- lenges for jury empaneling. The A. de- Right. We him guilty, found now we fense used five its six peremptory go to second, see which sentence he strikes, passed but on using the sixth. gets. jury After the seated, the trial judge Q. Right. agreed empanel four alternate jurors A. If he knew what he doing at the each gave side two peremptory strikes time, had a head, clear knew exactly, for the jurors. alternate The used defense planned out, then he get should its two peremptory strikes for alternate death penalty. But if he was under the jurors on jurors, two other causing Juror influence or something, or not quite 139 to be substituted as the first alternate. right head, in the you prove that, can then maybe it shouldn’t be so empaneled harsh. as sat during the way Either is bad but you guilt then get phase and found guilty prison time. three murders. During phase, one jurors of the twelve ill became and was Finally, prosecutor and defense excused the trial judge. Juror as counsel stopped asking questions and the alternate, first replaced the ill trial judge asked questions a few just to part of the jury for phase. “make sure”: The penalty phase jury subsequently rec- Q. just You’re just about done. I want ommended death sentences the three to make sure. They have you asked murders. lot of long questions, hard to follow. you Can my follow instructions at the On direct appeal to the Ohio Supreme ' *9 sentencing phase? Court, argued the trial 776 ” Kindler, 558 v. Beard judgment.’ jurors the cause for excuse failure court’s 612, 417 175 L.Ed.2d 55, 53, 130 S.Ct. U.S. for the death automatically vote
who would
creates some uncertainty as to appro priate standard of review given the seem In a penalty case, ju “a ingly inconsistent cases from this circuit on may ror not be challenged for cause based *11 juror’s of a estimation judge’s un- the trial punishment capital about views is appraisal that judge’s for impartiality, substan- prevent would those views
less
factors
host of
influenced
ordinarily
of his duties
performance
impair
tially
fully in the record—
capture
to
impossible
instruc-
accordance
in
juror
as a
inflec
juror’s
them,
prospective
Texas,
among
448 U.S.
v.
Adams
and oath.”
tions
candor, body lan
demeanor,
tion, sincerity,
2521,
581
65 L.Ed.2d
38, 45, 100 S.Ct.
duty.” Skill
of
apprehension
guage, and
auto-
who will
However,
(1980).
juror
“[a]
386-87,
358,
States, 561 U.S.
ing v. United
in
penalty
death
for the
matically vote
(2010).
619
2896,
L.Ed.2d
177
130 S.Ct.
to consid-
faith
good
in
fail
every ease will
“it is
mind that
Further,
keep in
we must
mitigat-
aggravating
er the evidence
them
express
jurors to
for
not uncommon
re-
instructions
as the
ing circumstances
ambiguous
contradictory and
Illinois,
in
selves
504
Morgan v.
to
him do.”
quire
court
unfamiliarity with
due
2222,
ways,
to
L.Ed.2d
both
729,
119
719,
112 S.Ct.
U.S.
and cross-examination
room
juror
proceedings
is
one such
(1992). “If even
492
jury pool runs
and because
im-
tactics
is
sentence
the death
empaneled
experi
of education
in terms
spectrum
execute
to
is disentitled
the State
posed,
White,
F.3d at 537.
of a
impaneling
“The
ence.”.
Id.
the sentence.”
trial” because
newa
juror warrants
biased
as bookends
serve
of our cases
Two
cannot be
juror
a biased
presence
“[t]he
the one
On
of this claim.
analysis
our
States, 258
v. United
Hughes
harmless.”
F.3d 932
Bagley, 380
hand,
v.
Williams
in
Cir.2001) (internal quo-
(6th
453, 463
F.3d
challenged
Cir.2004),
(6th
held that
we
omitted).
marks
tation
penalty
death
not an automatic
juror was
“did not stake
juror
that
Although
juror.
AEDPA, which
Even without
stance,” she
penalty’
‘pro-death
a firm
Supreme Court’s
the Ohio
provide
line”
“bottom
that her
eventually declared
layer of defer
an extra
adjudication with
death
for the
would “vote
she
was that
pierce
must still
ence,
claim
juror-bias
pa-
for
eligibility
there’s
because
penalty
to a trial
accorded
deference”
“special
(internal
marks
quotation
at
role.” Id.
juror’s
given
on a
determination
court’s
however,
omitted).
indi-
later
juror,
Mitchell, 431
v.
See White
impartiality.
her person-
set aside
“that she could
cated
Cir.2005)
(6th
Pat
(quoting
517, 538
F.3d
follow the
concerning parole
al beliefs
1025, 1038, 104
Yount,
S.Ct.
ton v.
the sentenc-
and that
instructions”
court’s
(1984));
also
see
2885,
81 L.Ed.2d
equally”
out
“start
ing options would
Witt,
U.S.
Wainwright v.
(internal
marks
quotation
Id.
her mind.
(1985) (noting
L.Ed.2d
omitted).
juror would
heldWe
are “enti
determinations
juror-bias
the death
automatically apply
review”).
on direct
even
tled to deference
a lack
“evinced
every case because she
judge’s
a trial
can overturn
A federal
all
bloodthirst,
a dislike for
professed
only where
impartiality
juror
finding of
to her
and attested
options,
sentencing
Patton, 467 U.S.
shown.
is
error
manifest
instructions
the court’s
ability to follow
review
“[O]ur
2885.
104 S.Ct.
at
at 959.
parole.”
Id.
despite her aversion
judge’s
the trial
deferential,
respecting
White,
hand,
431 F.3d
other
On the
the determina
venire and
to the
proximity
juror was
challenged
we held
that voir
demeanor
credibility and
tions
juror. The
an automatic
Brigano, 232 F.3d
involves.”
dire
Wolfe
cursory statements
made
in that case
Cir.2000).
“Reviewing courts
(6th
499, 502
while also
law
follow the
could
that she
second-guessing
resistant
properly
are
stating
“repeatedly
she had doubts as
allowing the challenged juror to sit on the
she
whether
law,”
could follow the
and penalty-phase jury.
Id.
that “she did not think it would be fair to
Trimble argues that our case is
defendant
her to sit on
jury.”
True,
Williams.
but
it is also not
Id. We highlighted three particularly trou-
White. Juror 139 never expressed doubts
bling
1)
elements of her voir dire:
*12
that she
as to whether he could follow the law and
had already decided what punishment was never
stated
it would be unfair to
2)
appropriate;
that she “relished taking Trimble for him to sit on the jury. Al
part in
imposition
of the death penalty
though he personally believed in
death
in
particular
this
case”;
3)
that she penalty in
abstract,
there is no indica
“believed that her anticipated outcome of
tion that he had already decided that the
the case was the true
one,
and honest
thus
penalty
death
was appropriate in
par
this
reflecting an inherent bias.” Id. We held ticular case. Juror 139 was not relishing
juror
would automatically apply his participation in
imposition
of Trim-
the death penalty in this case because
ble’s death sentence because of some per
“[tjhese statements not only indicate that
sonal animosity toward Trimble. Unlike
juror]
[the
had a strong inclination toward
the juror White,
in
Juror 139 specifically
imposing the death penalty, they also indi-
said that he knew very little about Trim-
cate that she was looking
par-
forward to
ble’s case. White is a particularly egre
ticipating in
imposition
particu-
gious situation in which an individual de
lar defendant’s sentence.” Id.
sired to participate on a jury because she
wanted to provide one of the twelve votes
Occupying the vast
space between
for death
a
against
particular defendant.
Williams and White is Bowling v. Parker,
It evinces a true example
(6th
of what Morgan
Cir.2003).
F.3d 487
case,
In that
juror
forbids: a
who
apply
the death
juror
we held
a
with marked similari-
penalty in every case.
Juror 139
ties to
is not
Juror 139 was not an automatic
juror.
such a
Compare Morgan,
death
penalty juror.
juror
That
“did ini-
defendant] juror. head, exactly, knew time, had clear the death get out, should then he planned IV. influ “under if he but penalty,” in the right quite something, ence or Su- that the Ohio also contends that, maybe it then head, prove can you unreasonably determined preme Court statement is This be so harsh.” Trim- guns shouldn’t owned that the admission rudimentary un inartful, captures of the but in the commission used ble but including phase, a fair trial. him of derstanding deprive did not murders Bowl court ad- evidence. trial mitigating guilt phase, During the role Cf. (“I that when a firearms feel nineteen at 520 F.3d into evidence ing, 344 mitted life, pun safe gun be he should in a locked kept another that Trimble man takes *13 admittedly not But, takes someone’s that were if he but that. for his basement ished mind, prosecution then I The right murders. in his in the is not used he life and long on two sequentially options.”). the firearms ... the other lined consider would jury box. the near placed them that were express to tables jurors require not We do the weapons, admitting the attorneys. Shortly after they trained were selves the and removed for lunch adjourned court sitting. to afternoon prior of the the firearms our own evaluation While other exhibits Then, with the along is relevant, relevant the more record to the firearms trial, judge allowed the the Juror 139 that determination trial court’s during delib- jury the room to brought be this We will overturn rehabilitated. was phase. guilt the erations in if “the cold record only determination persuasive and so so extensive alone is rejected sev- Supreme Court Ohio The defer presumptive outweighs our that it reasons proffered of state’s eral the Anderson, 434 v. Franklin See ence.” the of admission of the propriety the Cir.2006). Here, (6th the 412, 427 F.3d calcula- showing prior including weapons, about statements contains confused weapons, record access to ready design, tion and declarations Trimble, structure dual-phase the 911 weapons. familiarity with or the noted, about death how- personal eventually of beliefs It 263. N.E.2d at fol ability to of trial affirmances coupled argument ever, the state’s that evidence, the that claims law and consider rebutted low the the firearms that un rough a had accidentally that shows killed Positano a statement Trimble final very at the did trial court derstanding process, of and so the the “some merit” fire- admitting the by claim that Juror 139 the undermines discretion least abuse its Further, held the that court automatically vote for arms. Id. allowing compared weapons of the every displaying in When case. during accompany in situation egregious firearms particularly “highly deliberations, questiona- situation while strikingly similar and the White an abuse decision, exten was are not so still facts ble” Bowling, these not. way, both Either Id. at outweigh our 264. as to discretion. persuasive sive and weap- admitting displaying judge trial deference presumptive be- error only harmless in-the- amounted ons that we overturn and dictate overwhelming evidence cause of impartiality. determination moment The dis- 263-64. Id. at guilt. granting Trimble’s by erred thus The district “sharply AEDPA court, noting trict ground on the Trimble relief to habeas
781 claim, limits” review this did not find cededly relevant evidence to lure the fact- the Ohio Supreme Court’s determination finder into declaring guilt on a ground to be unreasonable. different from proof specific to the offense charged.” Old States, v. United Chief The Warden argues first 172, 180, U.S. 117 S.Ct. 136 L.Ed.2d fairly present did this claim to (1997). Trimble contends that the ad- the state courts. Before seeking a federal mission and display of the firearms rose to writ of corpus, habeas prisoner state prejudice. level of fairly must present his claim to each ap Payne standard, The however, propriate by gen state court is a alerting that court rule, eral and “evaluating to the whether federal nature of the rule claim. Bald application Reese, win requires v. unreasonable 27, 29, con U.S. 124 S.Ct. sidering the rule’s (2004). specificity. 158 L.Ed.2d more general rule, clearly presented more leeway this claim to courts the state have in reaching courts. argument His about outcomes case-by-case the firearms presented determinations.” separate Yarborough Alvarado, two propositions 652, 664, of law U.S. before the one, state court. (2004). L.Ed.2d
claimed that
the admission of
weapons
Trimble has the un
violated
right
task
to a fair
enviable
of proving
guaran
trial as
the Ohio
Fifth,
Supreme
teed
Sixth,
Court
reached
Fourteenth
an outcome that
*14
to
falls
Amendments
the
outside this
United
broad leeway.
States Consti
He fails to
other,
tution.
In the
meet
standard,
this
cited four Su
because he has shown
preme Court cases
us
support
to
no
proposi
this
caselaw to support
contention,
his
tion. Like the Court in Dye
while the
Hofbauer,
v.
point
Warden can
to at least one
we are convinced that
this
case
support
foundation
in
of her position. See United
enough
satisfy
to
the fair presentment
Perrotta,
S
re
tates
v.
155,
289 F.3d
quirement.
(1st
1, 3-4,
Cir.2002)
U.S.
126 S.Ct.
(upholding on direct review
(2005)
members evidence overwhelming of Positano, the context shot Trimble the time during call against balanced factors aggravating of him to tying evidence forensic of a wealth evidence. mitigating unremarkable rather testimony. murders, eyewitness harm- significance 277-78. Id. at evidence, impact this face of In the ultimately convinced arguments less-error at best had on these firearms claim reject Trimble’s court the district properly court The district de minimis. as well. claim. this relief on Trimble habeas denied argues again once The Warden
y.
this
fairly present
did not
the state
Before
courts.
to the state
contends
claim
Finally, Trimble
cumulative
that the
during
courts,
argued
prosecutor
by the
questions
certain
during
misconduct
prosecutorial
prosecutorial
effect
constituted
phase
his
him of
deprived
phase
spe
three
highlights
mitigation
misconduct. Trimble
by the
guaranteed
trial.
fair trial
to a
phase
right
portions
cific
Amend
Fourteenth
Fifth, Eighth,
elicit
attempted
First,
prosecutor
Constitution.
States
the United
that Trimble
ments of
mother
from Trimble’s
issue
raise
federal
wishing
litigant
Force
“A
the Air
from
discharged
for
basis
federal law
easily
hard
indicate the
to six months
can
sentenced
martial and
brief,
or
petition
however,
in a
mother,
assert
claim
state-court
labor. Trimble’s
conjunction
by citing
example,
circum
know the
she did not
ed
law on
source
the federal
departure
the claim
surrounding
stances
deciding such a
or
case
Second, in
relies
questioning which he
Air Force.
by simply
attempt
grounds,
mother,
on federal
prosecutor
claim
” Baldwin, 541
*15
claim ‘federal.’
labeling
violence
of domestic
evidence
to admit
ed
Here, although
32,
1347.
Again,
124
S.Ct.
marriage.
U.S.
previous
in Trimble’s
employing
cases
only
that she did
cited
Trimble
mother asserted
the'
before
briefing
his
analysis
in the
any
violence
state law
domestic
know about
courts,
grounded his
specifically
failing to extract
state
relationship. Finally,
on three
claim
mother,
pros
prosecutorial-misconduct
from Trimble’s
evidence
Consti
to the United States
a clinical
elicit from
Amendments
attempted to
ecutor
must
Supreme Court
violence
The Ohio
tution.
of domestic
evidence
psychologist
Trim-
basis for
re
the federal
recognized
In
have
previous marriage.
in Trimble’s
a United
claim,
it cited
because
testified
ble’s
psychologist
sponse,
its discus
case in
rela
Court
Supreme
in the
of violence
States
evidence
there was
Trimble, 911
See
the claim.
of
sion
tionship.
Phillips,
v.
(citing Smith
N.E.2d at
analyzed each
Supreme Court
The Ohio
940,
219,
209,
102 S.Ct.
455 U.S.
individually and concluded
statement
(1982)).
therefore
Trimble
L.Ed.2d 78
any error
or that
no error
either
there was
the state
claim to
this
fairly presented
questions
prosecutor’s
The
was harmless.
courts.
be-
were harmless
mother
to Trimble’s
merits,
contends
On
than a
nothing more
they elicited
cause
determination
Court’s
Trimble,
Supreme
the Ohio
her.
response from
negative
claim was
prosecutorial-misconduct
his
ques-
prosecutor’s
275-76.
N.E.2d at
Darden v.
of
application
an unreasonable
court con-
psychologist,
tioning of
Wainwright,
106 S.Ct.
mined by a state court to be insignificant
(1986).
Here, the mitigating Trimble evi cites to no Supreme Trimble, dence. Court case N.E.2d at besides 285. The Darden in support of district court argument. correctly his denied habeas relief Although prosecutor’s the on questions prosecutorial-misconduct Trimble’s may have been improper, no Su- claim. preme Court case authorizes this court to
grant habeas relief for prosecutorial mis-
conduct
questions
based on
YI.
posed wit-
to
nesses about discharge from the military
For
the foregoing reasons, we RE-
prior
and
abuse,
domestic
questions deter- VERSE the district court’s grant of habe-
139’s
of
death
nature
Juror
predetermined
and
claim
juror-bias
Trimble’s
on
as relief
Part III.C of
from
vote, I dissent
penalty
ha-
of
denial
court’s
district
the
AFFIRM
opinion.
majority
the
admission-of-weapons
the
on
relief
beas
claims.
prosecutorial-misconduct
and
BACKGROUND
concurring
part
Judge,
CLAY, Circuit
evening of
Trimble, on the
Earl
James
part.
dissenting
and
2005, senselessly killed
January
son,
a complete
and
minor
her
girlfriend,
on defen-
confers
Amendment
Sixth
The
of
the lives
altering irrevocably
stranger,
impartial
an
to
right
an absolute
dants
their
loss of
the
endured
many others who
this constitutional
to
Adherence
jury.
night.
on that fateful
ones
of life
loved
matter
literally a
guarantee is
aggravated
of
case,
counts
on three
indicted
capital
a
of
context
in the
death
penalty
a
murder,
including
death
each
impose a death
not
may
a state
where
child
of a
under
(e.g., murder
of the
specification
single member
if even
sentence
two or more
killing of
age, the
to
of
years
impartial due
not
jury was
empaneled
calcula
prior
of a
as part
people, murder
punishment.
capital
her views
his or
in connection
murder
design, and
tion
“automatic
concerning the
issue
The
trial was
Trimble’s
kidnapping).
awith
in this case
juror does
penalty”
death
phase
guilt
segments:
the
into two
split
rightfully
that
is
deference
turn on the
In the first
sentencing phase.
the
credibility determi-
court’s
to
trial
owed
all
guilty on
found
phase,
the
questioning
is
nation,
party
as neither
specifi
death
including the
counts
views on
sincerity respecting
juror’s
jury was
phase,
second
In the
cations.
issue
pertinent
The
penalty.
the death
ag
decide,
weighing
instructed
juror, given
case is whether
this
with each
associated
gravating factors
testimony, could
voir dire
totality of his
(ie.,
specifications)
the murders
fairly apply
expected
reasonably be
evidence,
mitigation
Trimble’s
against
court.
by the
do so
law when asked
be sen
Trimble should
whether or
instructs
precedent
Court
Supreme
found
to death.
tenced
alone, irre-
affirmative assurance
juror’s
miti
outweighed
factors
aggravating
dispositive,
credibility, is not
spective
accordingly vot
gating circumstances
could, in
that a
may be
“[i]t
because
At issue in
sentence.
ed for
law
uphold the
conscience,
swear
good
empaneled
one
is
appeal whether
maintaining such
yet be unaware
sentencing phase
during the
jurors
the death
about
dogmatic beliefs
impartial
as an
serve
trial could
Trimble’s
doing so.”
her from
him or
prevent
con
fairly
law and
following
juror by
719, 735,
Illinois,
U.S.
Morgan
evidence.
mitigation
sidering
(1992).
It
119 L.Ed.2d
excerpts a
majority
few
Although
objective
any
to fathom
truly difficult
139’s
Juror
passages
the relevant
in this
testimony
review the
could
party
*17
to
fails
opinion
majority
the
testimony,
reached
conclusion
at the
and arrive
case
of his voir
context and flow
the full
in- offer
repeatedly
Juror
majority;
by the
necessary
is
detailed review
A more
dire.
any-
that
and belief
his preference
dicated
to
required
reviewing
a
murder,
a because
ofwas
committed
one who
surrounding”
context
[entire]
the
so,
to
“examine
they did
deserved
mind when
sound
Dar
juror’s questioning.
prospective
of
the
death.
view
put-to
and should be
die
168, 176, Wainwright,
the
den
respecting
unambiguous record
the
' (1986).
mary Juror 139’s dire voir testimony. prosecutor The thereafter explained to (the Juror 139 for the third time prosecu- outset, At the the district court ex- tor’s second attempt) Ohio, that in sentenc- plained Ohio’s bifurcated sentencing ing is after guilt decided the phase of the scheme to Juror 189. The judge asked if trial. Juror 139 asked number ques- Juror could vote for a death sentence tions that indicated his Yet, confusion. the aggravating the outweighed factors the prosecutor pressed forward stating, mitigation evidence, and Juror 139 re- ‘You’re that understanding right one or sponded, (App’x “Yes.” Vol. Voir Dire the other [meaning life or death] and 1312.) Tr.—Part at He then asked if something that happens after trial, the Juror 139 could instead vote for a life (Id. okay?” 1316.) at Juror 139 assented sentence, if the true, was reverse tó which that he understood that much. But imme- (Id.) Juror 139 responded, ‘Yeah.” He also diately following this exchange, Juror 139 affirmed that would, he general, be able further demonstrated that he would be an to follow the judge’s instructions. automatic penalty death juror. When It was then prosecutor’s the asked for his opinion turn to on the ask death penalty, questions. He began also by acknowledged that explaining, it a purpose served time, for a then, second the separate unprompted, phases of a he asked rhetori- cally, death first, trial in you “Because if guilt take a life why Ohio— phase, you by should (Id. followed be sentencing to phase. allowed live?” at 1317.) 139, again, Juror initially prosecutor responded said that he by un- re- (Id. minding derstood the process. Juror 139 that (“Yes, person at I convicted that.”).) might understand murder However, be entitled to Juror live 139’s under Ohio responses law. to Juror 139 prosecutor’s responded, by questioning asking, “Depending why offered the first [the indication might defendant] that he did it[ (Id.) be able to follow murder]?” the law or —committed It was judge’s plain from instructions, this exchange but that Juror instead an be auto- remained confused ignorant death penalty juror. matic his ob- When Juror ligation weigh mitigation 139'indicated that he evidence. For might be confused reason, that prosecutor about the carefully sentencing phase, ex- the prosecutor plained to Juror 139 directly asked whether time Juror thought fourth (his third attempt) that that death ... “automatically sub- only appropriate ject if the had decid- death penalty,” if he was found ed during the (Id. sentencing phase 1314-15.) guilty. at recognized As aggravating factors outweighed the majority, Trimble’s Maj. see Op. at mitigation evidence. Juror again, responded, I “If find him guilty,” “Yeah,” very words, few indicated that he suppos- and “If he killed three people he should edly understood the information being [get con- (Id. the death 1315.) penalty].” veyed to him by prosecutor. Despite unequivocal response to a di- rect question that indicated his misconcep- The prosecutor next told Juror 139 that tion respecting duties, Juror again it was “job ... you convince asserted that he understood “in Ohio to not vote for the death sentence and [he] the law is you don’t make [the a right ha[s] present that evidence.” penalty] decision at time,” ie., (Id. *18 1318.) imme- at The judge sustained an trial penalty a death that in Ohio attempt) editorializing, prosecutor’s to the objection jury, neces- stages, and that two involved prosecutor the defense believed as the Trimble whether only decide could sarily, that Juror 139 to suggesting impermissibly jury after the to death sentenced be should favor of presumption abe there would aggravat- guilty him already found had finding Trimble after penalty death the specifi- penalty the death with ed murder asking rephrased, prosecutor guilty. determination cations, that the later and miti- to the listen Juror
whether and separate penalty the regarding “make to wait and could evidence gation The defense guilt. from Trimble’s apart (Id.) penalty.” [the] about mind] up [his the through walked meticulously counsel answered, “Yeah,” ques- to both Juror to Ju- explaining the guilt phase trial — asked (Id.) Finally, prosecutor the tions. guilty to find order that in ror 139 judge’s the could follow the whether find have to counts, jury would the all on a recommendation return and instructions its burden met prosecution the that if is what that a life sentence for penalty death of the establishing each an- again Juror supported. evidence or more of two killing specifications: affirmatively. swered of a part murder was that people; to turn counsel’s Next, defense it was one and that design; calculation prior re- However, 139’s Juror questions. ask course of in the happened murders plainly revealed questions those to sponses thereafter Defense counsel kidnapping. ato respect with ignorance persistent his point, only at it was that explained evi- mitigating consider duty to juror’s guilty had found jury after remarks, re- he unprompted dence, penalty the death murder aggravated applying for preference affirmed weigh could that specifications, found anyone who was to penalty death miti- against specifications those being to response of murder. guilty be if he should and decide gation evidence called had ever been he whether asked if he asked When to death. sentenced penalty, death on the to views discuss explana- step of the each after understood ques- answering by responded he ‘Yeah,” or replied, tion, simply Juror view, “I stating his clearly by tion, but 1322-25.) (Id. end of At the at huh.” “Uh a reasonable without just, you’re guilty, if understanding offered his dialogue he somebody’s life you take doubt, if then of process: al- be go you shouldn’t your life should saying, — are you guys knew—what he If 5, Voir Vol. (App’x live either.” lowed doing, he was what already knew he if 1321.) response This at Tr.—Part Dire get whatever, should then he or that Juror third time constituted some like for But he’s penalty. death indi- unequivocal statement an had made whatever, maybe then off reason automatic be an that he would cating that, something like just prison up confirm- juror. He followed you mean? what juror would be mindset ing that his 1325.) state- from this (Id. It is evident at goes eye” “[w]hat for an eye “[a]n counsel’s after defense that even ment (Id. 1322.) Ju- comes around.” around explana- thorough explanation fifth —the ambiguous terms in no made clear ror 139 received—Juror 139 had that Juror tion die, long as so Trimble deserved guilt to conflate continued guilty. was found comprehend He failed phases. was distinct evidence mitigation explained counsel point, defense thisAt aggravat- (his affirmative defenses potential first time to Juror fifth *19 ed murder guilt at the phase trial, jury pool as an automatic death penalty such insanity as or mental incapacity. Ju- juror. ror 139 previously stated as much during At point, the judge explained to his voir dire to screen for bias pre- Juror 139 the seventh time the distinc- for trial publicity: “From what I understand tion between the two phases of the trial that he’s already guilty, but just he’s try- “just because he want[ed] make sure” ing figure out if he’s—if insanity it’s that Juror 139 truly pro- understood the not.” (App’xVol. Voir Dire Tr.—Part (Id.) cess. He then asked whether Juror 1303.) at Juror 139’sview was simply 139 knew that it was obligation his
if Trimble was guilty aggravated mur- follow the court’s instructions. Juror 139 der then he should be sentenced to death. replied affirmatively, just as he had at the Defense counsel amade attempt final to very beginning of his voir dire testimony. resolve Juror 139’s misconceptions. He The judge found that Juror 139’s testimo- explained to Juror 139 the sixth time ny overall supported a finding that Juror (and at great length) the distinctions be- 139 would consider the mitigation evidence guilt tween the and penalty phases of a and that he would follow the court’s in- capital specifically identifying to Ju- trial — structions, and bases, on those the judge ror 139 what was so troubling about his overruled defense objection counsel’s previous explanation of the penalty phase. Juror 139 should be excused for cause as Defense counsel highlighted for Juror 139 an automatic death penalty juror. There the jury would necessarily have to reading no of these facts under any find that the murders planned were standard review that should lead rea- purposeful prior to the penalty phase, if sonable objective person to conclude the jury then being asked weigh that Juror 139 would be able to faithfully mitigation evidence in consideration of the execute his on duties by impartial- death penalty. Juror 139 thereafter made ly sitting judgment and following the a final attempt to explain his understand- law, which require him to consider ing respect to whether he would anbe the possibility of a life sentence even after automatic death penalty juror at- —that he found that the murders were committed tempt just failed clearly as had his by an individual who of a sound mind earlier attempt at offering his understand- and who planned had the killings in ad- ing role the jury. He stated: vance. If he knew what he was doing at the
time, had a head, clear knew exactly, planned out, DISCUSSION then he get should death penalty. But if he was under the I. Standard of Review influence or something, quite or not head, right you that, can prove matter, As an initial it is worth address- maybe then it shouldn’t so be harsh. ing the standard review. Despite the Either way is bad but you then get the majority’s contentions, the law of this Cir- prison time. clearly cuit commands that de novo review (App’x Vol. Voir Dire Tr.—Part applies to a case such one, as this where added).) 1329 (emphasis Defense counsel the state court did not consider the claim shortly thereafter concluded question- on the merits because it only applied plain ing; presumably believing that he could error review after incorrectly finding that easily have Juror 139 removed from the the claim was procedurally defaulted. *20 to majority by on only case relied The Death Effective Antiterrorism Metrish, v. Fleming suggest habeas to (“AEDPA”) applies otherwise — Act
Penalty (6th Cir.2009) not control- re- has 520 court 556 F.3d a state where —is only cases time, later in merits. it decided ling on the claim because petitioner’s viewed the over- 86, cannot 131 this Court Richter, panel 562 of U.S. and one v. Harrington (2011); prior pan- a see of decision published 624 L.Ed.2d rule the 770, 784, 178 609, 206, Smith, 209 Moody, 206 F.3d 745 F.3d v. v. States el. United also Jackson ‘adjudicated (“[T]he Cir.2014) (“[C]laims Cir.2000) (6th not earlier determi- (6th 615 given are a deci- court unless by authority the state binding merits’ on the nation is court, habeas Supreme a Court federal review States plenary the United sion applies.”); sitting otherwise AEDPA Court where or this even modification mandates (6th Renico, 764, decision.”). 770 F.3d 391 v. the prior Burton overrules en banc majority case, Cir.2004). as the ma- and the inapplicable plainly is AEDPA its incorrectly applied concedes, state into ambiguity' injecting at attempt jority’s ap- It therefore rule. default procedural uncon- completely is precedent our Circuit the trial reviewing error plied plain judg- to the is due No deference vincing. for 139 remove Juror to failure court’s courts appellate the state’s ment of cause. error. plain for only the issue reviewed to at 765. 440 F.3d equivalent Lundgren, not review “is error
Plain
rather,
more
merits”;
“is
it
review
apply
impartially
ability to
juror’s
A
over
right to
aas
court’s
viewed
properly
v.
issue, Franklin
a factual
law is
mani
prevent
to
defects
procedural
look
Cir.2006),
(6th
412,
Anderson,
426
434 F.3d
Mitchell, 440
Lundgren v.
injustice.”
fest
im-
juror
findings of
“trial
and the
court’s
Cir.2006);
Frazi
(6th
accord
754, 765
F.3d
for
only
may ‘be overturned
partiality
(6th
485, 496 n. 5
Jenkins, 770 F.3d
”’
er v.
Virginia,
v.
Mu’Min
error.”
“manifest
held
Cir.2014) (“We
repeatedly
have
1899,
428-29,
114
415,
111 S.Ct.
U.S.
500
ad
equivalent
is not
review
plain-error
(1991)
v.
Patton
(quoting
493
L.Ed.2d
trig
merits, which would
on
judication
2885,
104 S.Ct.
Yount, 467 U.S.
v.
deference.”);
State
see also
ger AEDPA
(1984)
v.
Irvin
(quoting
847
81 L.Ed.2d
467, N.E.3d
Mammone,
13
St.3d
Ohio
139
1639, 6
717, 723,
Dowd,
81 S.Ct.
(“We
plain
(2014)
notice
take
1051, 1070
However,
(1961))).
manifest
751
L.Ed.2d
caution,
ex
under
utmost
with the
error
is
there
clear
means that
simply
error
only
prevent
circumstance
ceptional
trial
evidence
convincing record
(internal quota
justice.”
miscarriage of
Irvin, 366
incorrect.
court’s decision
Thus,
omitted)).
this Court
marks
tion
724-25,
S.Ct. 1639.
at
U.S.
of declin
precedent
has a well-established
being procedurally
claims
ing to review
Analysis
II.
only
has
court
state
when
defaulted
the law are
apply
cannot
who
“Jurors
error, relying
plain
for
the claim
reviewed
Franklin,
at 427.
F.3d
impartial.”
never
that the state
the rationale
automatically
Thus,
juror who would
“[a]
See,
the merits.
claim on
reviewed
penal-
of the death
imposition
vote for
McKee,
450-51
649 F.3d
v.
Taylor
e.g.,
aggravating
weighing the
ty without
Yanai,
F.3d
Cir.2011);
(6th
Girts v.
must be re-
presented
evidence
Mitchell, mitigating
Cir.2007);
(6th
Keith v.
743, 755
trial
cause, and a failure
Cir.2006).
moved
(6th
Lund-
662, 673
F.3d
constitu-
the level
rises to
do so
court to
plain error
any notion
forecloses
gren
relief.”
grant
error
sufficient
tional
merits.
on the
a review
analysis constitutes
Mitchell,
(6th
White
F.3d
And
majority’s
contention that Juror
Cir.2005). This Court has no choice
but
139 was not an automatic death penalty
reverse a sentence
juror
where
biased
juror simply because he “never expressed
Franklin,
has been seated.
at
F.3d
doubts as to whether he could follow the
427. Furthermore, attempts to rehabili-
law,” Maj. Op.
clearly
incompati-
tate a
will
suffice when it is clear ble with the Supreme Court’s guidance in
*21
juror
the
has failed to comprehend his Morgan. Because credibility
not
is
at is-
responsibilities,
id, because this Court’s
sue, no special
is
deference
due to the trial
inquiry “does not end with a mechanical
court’s judgment.
In
case,
this
panel
the
recitation of
single
question and answer.” was only called on to decide whether there
Darden,
176,
meanor” and language.” Maj. Op. ment of out-of-context quotations from at 778-79. That contention is unpersua- cases that it designates as the metes and sive in the context of this case. Demeanor bounds of Sixth Circuit death penalty ju body language only are relevant when risprudence. Relying on Bowling v. Par juror’s credibility issue, is at typically, ker, (6th F.3d Cir.2003) as the because the testimony inconsistent, is linchpin comparator case of its indepen juror’s answers are ambiguous, or because dent analysis, the majority contrasts Juror judge trial has indicated that credibili- 139’s plainly deficient explanation of his ty is an issue. None of those factors are duties (conflating mitigation evidence with present in this case. The judge trial did mental incapacity) to a strikingly similar not invoke credibility as issue; at being he explanation by offered juror in Bowl simply determined that Juror 139’s at- ing who was found not be an automatic tempts to explain his understanding of the death penalty juror. Maj. See Op. 779-80. sentencing procedure, along with his affir- However, the majority conveniently omits mation that he would judge’s follow the from opinion its that in Bowling instructions, were sufficient to overcome clarified himself immediately following the his statements indicating a prefer- clear troubling statement testifying that he ence for the death penalty. This determi- would consider all of the mitigating fac nation, to credit certain snippets of testi- tors, all of possible sentences, and that mony reflecting Juror 139’s willingness to he “definitely [did want not] ... see [to] follow instructions over his clear un- someone take the penalty.” death equivocal expression of justice on views F.3d at 520. Juror 139’s views meaning eye “[a]n eye,” for an (App’xVol. death were in polar opposition to Voir Dire 1322), Tr.-—Part at does not expression this of understanding by the reflect a credibility determination. See juror in Bowling. Morgan, 504 U.S. at 112 S.Ct. 2222 (“It may be that juror could, ease, good all the evidence indicates conscience, swear to uphold the law and that Juror 139 single-mindedly favored the yet be unaware that maintaining dog- such and that he would possibly matic beliefs about the death penalty consider a life only sentence if the defense prevent him so.”). or her doing prove could that Trimble “was under whether asked responses when tive right quite or something,
influence evidence mitigation consider Dire would Vol. Voir (App’x head.” in the in- the court’s follow he would 1329.) whether state- This artless 9, at Tr.—Part However, 139’s affirma- Juror attempt structions. final ment, best 139’s Juror an questions are rote law, responses tive prevailing to the his views conform trial uphold the alone to basis that Juror insufficient any indication entirely devoid Darden, miti- See judgment. court’s any of consider 139 would a re- (affirming that Moreover, 139’s 176, 106 S.Ct. Juror evidence. gation not end inquiry “does circum- court’s only viewing clear make responses question single a life of a recitation consider he would a mechanical in which stance Franklin, F.3d Trimble, by answer”); defi- also see one where sentence (“While judge’s mur- aggravated appreciate we nition, guilty at 428 *22 had juror, he this specifications. penalty attempts to rehabilitate the death der with juror who of his prospective a recitation duty incorrect to dismiss a plainly This law.”). to When opposition follow duties, direct could not stands which whole, readily is impar- it to as a right an viewed testimony is constitutional Trimble’s an before 139 constituted the issue resolves that Juror squarely apparent jury, tial There Franklin, penalty juror. 434 F.3d automatic panel. follow all of could consider Juror (“[T]hat that juror] no indication [the by juror impartial fact that as an not and serve remove law does the evidence evidence, mitigation expect some considering to seemed also she affirming by defendant] responses [the than his laconic come other to evidence innocence.”). “yeah,” case understanding e.g., This purported of his way proof — that.” “I huh,” in that understand “right,” Juror Franklin “uh is controlled 9.)& under- Dire Tr.—Parts could [he] Vol. Voir (App’x “was biased because hand, particu- had [he] because Juror law rather than the other On stand expressed defen- he [the about when opinion larly forthcoming preexisting Frank- in no uncertain like stance penalty Id. Much pro-death dant].” a bur- he placed people killed three lin, impermissibly “If he terms:1 Juror death]”; “Because to to prove defense sentenced [be den on should Vol. (App’x be al- Compare you why live. should right to a life you had the if take (“But if eye, at 1329 all live”; for an eye Dire Tr.—Part “An Voir lowed something, around”; or the influence comes under around that”; goes he was “What head, you can right in the without quite “Yeah, you’re guilty, or not just, I if if penalty] that, maybe [the then doubt, take some- prove you then reasonable added)), harsh.”) (emphasis go you be shouldn’t so your life should life body’s — (“If the Franklin, at 424 either”; 434 F.3d “[I]f with allowed live be shouldn’t lawyers, to both doing, would listen or' what he already knew had they evidence know, and whatever you the death get whatever, then he should here I’d sit guilty, him prove reason like for some But if he’s penalty. added). it.”) (emphasis prison listen maybe just whatever, then off and (App’x Vol. that.” something like the most contends majority 9.) undis- These & Tr.—Parts 8 Dire trial Voir is that to consider thing important no demonstrate statements puted rehabili- had been thought Juror judge debate serious for-ambiguity or room affirma- he offered because simply tated chronological order. presented are following statements 1. The the trial judge made a manifest error in
judgment that cannot withstand constitu-
tional scrutiny. The evidence is beyond
clear convincing that Juror 139 consti-
tuted an automatic death penalty juror
because he expressed pro-death
stance proved incapable of recognizing
his duty to consider mitigation evidence at phase of Trimble’s trial.
Seeing no rational basis for overturning
the district court’s judgment granting ha- relief,
beas I respectfully dissent. *23 LONG,
William individually and on be J.L.;
half of Long, Barbara individu
ally and on behalf J.L.; Jonathan
Long; Long, Melissa Plaintiffs-Ap
pellants,
INSIGHT COMMUNICATIONS
OF OHIO, CENTRAL LLC,
Defendant-Appellee.
No. 14-3996.
United States Court of Appeals,
Sixth Circuit.
Argued: June 2015.
Decided and Filed: Oct. 2015.