*1 520 1446(b). However, we affirm because § defense, proceeded to the court
raise the “(1) remanding arose from case] court’s order [the the district analyze whether (2) of the claim is resolution case, or is moot. the CBA the timeliness issue analysis of on an substantially dependent CBA, inextricably or is
the terms CONCLUSION it.” Id. at 903. Similar- intertwined treat did not ly, reasons, here the district AFFIRM we foregoing For the disposi- as non-signatory status Cottrell’s opinion. the district court’s alongside it tive; considered properly factors, “proof the fact that including
other law Plaintiffs’ state to establish
required not involve CBA”
claims does independent of “duties exist
Cottrell’s owed to members are duties
CBA and a matter state law.” as noteworthy that in addition to
It is DRUMMOND, case, Petitioner- John in this Cott- court’s decision district rejected Appellee/Cross-Appellant, have been now rell’s removals cases.9 These decisions 17 federal other v. attempted re- issued after Cottrell’s were case, so Cottrell could in this moval HOUK, Warden, Respondent- Marc in its basis them into account have taken Appellant/Cross-Appellee. However, the fact that Cott- for removal. 11-3024, 11-3039. Nos. been remanded so removals have rell’s insight offers some into many instances Appeals, States Court of United of the removals. reasonableness Sixth Circuit. sum, is an abundance of case In there Argued: April 2013. preempt 301 does not law light of clear case tort law claims. state Aug. Filed: 2013. Decided and law, objectively had no reasonable Cottrell for removal. basis
D. Timeliness argue that Cottrell’s re-
Plaintiffs also untimely under 28 U.S.C.
moval was
Cottrell,
al.,
11CV1076S,
Cottrell,
et
No.
van v.
Inc.
McNary v.
No.
3:11-cv-01106-JPG-
Cottrell,
Cottrell,
(S.D.Ill.);
(W.D.N.Y.);
v.
No. 11-
v.
Belleville
WL 694825
PMF
Huff
(S.D.Ill.); Davenport
al,
(W.D.Mo.);
v.
cv-1114-JPG-PMF
et
No. 1-01270-CV-WGAF
Sales, USA, Inc.,
Toyota
No. 11-cv-
Cottrell, Inc.,
al.,
Motor
et
No.: 11-1273-CV-
Hale v.
(S.D.Ill.);
v.
Henderson Auto
1108-JPG-DGW
Cottrell, Inc.,
(W.D.Mo.); Longstreet v.
WSOW
11-1118-GPM,
WL
Handling Corp.,
No.
23, 2012);
(S.D.Ill. Apr.
Hernan
11-CV-1125
Cottrell,
(S.D.Ill.);
No. 11-cv-
Smith v.
Cottrell,
Inc.,
OPINION COLE, Judge. Circuit John Drummond was convicted of the aggravated Dent, Jiyen murder of Jr. and sentenced to death. He unsuccessfully pursued post-conviction pro- state habeas ceedings subsequently a petition filed for a writ of corpus habeas in federal district court. district court condi- .The tionally granted, the in part, holding writ *4 that the state trial violated his Sixth court Amendment right to a trial and that of unreasonably Ohio applied clearly established Supreme Court when it held otherwise. The district law. court petition denied as to all other grounds Houk, for relief. Marc a warden Ohio, for the appeals state of the district partial grant court’s of the writ. Drum- cross-appeals mond the district court’s de- (1) nial of grounds: the. writ on two state trial court proceedings his violated Confrontation right Clause to cross-exam- (2) witnesses, ine and his counsel was inef- fective during penalty phase of his ARGUED; Wille, L. Charles Office of follow, trial. For the reasons that af-we Attorney General, Columbus, the Ohio firm the judgment of the district court. Ohio, for AppellanVCross-Appellee. Alan Rossman, C. Federal Public Defender’s I. Office, Cleveland, Ohio, Appel- for lee/Cross-Appellant. ON BRIEF: Justin approximately At p.m. 11:25 on March Lovett, Leikala, Morgan Brenda S. Office 24, 2003, Drummond fired eleven shots General, Columbus, of Attorney the Ohio Jiyen into the Youngs- home of Dent Sr. in Ohio, for Appellant/Cross-Appellee. Alan town, during drive-by Ohio a shooting. Rossman, C. Federal Public Defender’s One of the shots killed three-month-old Office, Cleveland, Ohio, Dought- David L. Jiyen Dent Jr. en, Cleveland, Ohio, Appellee/Cross- Appellant. 3, 2003, April On the state in- of Ohio aggra- dicted Drummond on seven counts: COLE, GRIFFIN, Before: and prior vated murder with calculation and KETHLEDGE, Judges. Circuit design; aggravated an murder of individu- COLE, J., al years age; under thirteen of two counts opinion delivered court, GRIFFIN, J., murder; joined. attempted of which two counts of feloni- KETHLEDGE, 534-85), assault; (pp. improperly discharging J. delivered ous and a separate dissenting opinion. a aggravated firearm. The two counts of jury guilty A found Drummond on all penalty death each contained two
murder (1) The trial specifications. in- and a of conduct counts course specifications: death, and of, Drummond to or at- sentenced purposeful killing volving the his Court of affirmed con- Ohio kill, Ohio persons, two or more tempt to (2) appeal. and on direct viction sentence See 2929.04(A)(5), § Ann. Rev.Code Drummond, 14, v. 111 Ohio St.3d State of years thirteen a child under murder 1038, (2006). Drummond 854 N.E.2d 2929.04(A)(9). age, id. petition re- post-conviction then filed jury trial at the of evidence Presentatio'n court, in state trial which was denied lief trial; February 2, At began on summary judgment. The Seventh Dis- on Rozenblad, Yaraldean James “Cricket” affirmed the trial Appeals trict Court Thomas, testified for Nathaniel Morris arid decision, Drummond, State Rozenblad testified prosecution. 3849295, at No.05 MA *23 WL Gilliam, Drummond, Wayne overhearing (Ohio 2006), and the Ct.App. Dec. Su- discussing party another man accept preme Court Ohio declined moving neighborhood into “guy [their] case for .review. State had to do with something could have [who] (Table) Ohio St.3d 866 N.Ed.2d Crips Lincoln Knolls [fellow the death (Ohio 2007). Thomas testi- Brett Schroeder.” member] *5 petition Drummond then filed a for a seeing whisper Drummond fied to corpus writ of habeas federal district Gilliam, at the of their dis- and conclusion 2007, alleging court October thirteen cussion, say, “It’s on.” hearing Drummond 2010, grounds for relief. In December the. Thomas, Drummond left According to granted in part, district court the writ1 shortly thereafter párty reappeared and that the state trial court violated rifle. minutes la- with an assault Fifteen right Drummond’s Sixth Amendment to a Morris, ter, an the fatal shots were fired. Houk, trial. v. Drummond 761 Drummond inmate in the same cellbloek as 2010). 638, F.Supp.2d (N.D.Ohio, 680 Mahoning jail, testified County in the district court denied the writ as all a fellow he had overheard Drummond' tell grounds other relief. Id. kill that “he [sic] inmate didn’t meant appeals now Houk the district court’s at some- baby; trying get he was grant of the writ. Drummond ” body else.... cross-appeals the court’s district denial of (1) other A number of witnesses testified grounds the' writ on state of prosecution. Although for the some trial court his proceedings violated consti- gun- reported hearing witnesses, right these witnesses tutional to cross-examine (2) shots, Drummond, Gilliam, seeing and Gil- and his was ineffective during counsel shooting, sentencing phase. liam’s car near scene no oth- seeing gun, and Drummond with II. reported hearing Drummond
er witnesses or oth- any incriminating make statements We the district review erwise indicate that he participated- novo, grant corpus of a writ of de habeas planning of -the A search of findings offense. but we review factual Bell, ammunition yielded 581, Drummond’s house clear error. Carter v. 218 F.3d Cir.2000). variety (6th shooting with the and a findings consistent 590 The factual tying 'him to Lincoln Knolls court presumed [to be] items the state “are cor may only by be Crips -and to Schroeder. rect and rebutted clear
525
convincing
Bray
unreasonably
and
evidence.”
v. An-
court
...
refuses to extend
(6th Cir.2011)
drews,
731,
640 F.3d
legal principle] to a new
[a
context where
omitted).
(internal quotation marks
apply.”).
it should
pe
Because Drummond’s habeas
In conducting our review the
2007,
tition
was filed in
Antiterrorism
inquiry” is “whether
“proper
the state
Penalty
Death
Act of
Effective
objectively
court decision was
unreason
(“AEDPA”),
§
applies
28 U.S.C.
simply
able and not
erroneous or incor
...
may
grant
we
relief “unless
Mitchell,
rect.”
Keith
455 F.3d
contrary
... state court’s decision was
to”
(6th Cir.2006)
Williams,
(citing
529 U.S. at
then
established
Court 409-11,
1495.)
words,
120 S.Ct.
In other
law;
...
“or
involved an unreasonable
“in applying the
application’
‘unreasonable
r
law;
application of
o
such
it was
clause, a
reviewing
must be careful
based on an unreasonable
determination
not to substitute
judgment
its own
for that
in light
the facts
of the record before the
Haeberlin,
of the state court.” Harris v.
—
Richter,
court.” Harrington
state
(6th Cir.2008).
526 F.3d
U.S.-,
770, 785,
178 L.Ed.2d
(2011) (citations omitted) (internal quo-
III.
omitted);
tation marks
see also 28 U.S.C.
The state trial court closed the court-
2254(d).
§
Supreme Court cases decided
separate
room on two
during
occasions
may
after the state court decision
not be
during part
Drummond’s trial:
day
reviewing
considered
court. See
February
during
on
4th and
part of the
362, 412,
Taylor,
Williams v.
529 U.S.
day
February
on
5th. The trial closure
(2000).
1495, 146
L.Ed.2d 389
relevant to
appeal occurred on Febru-
2254(d)(1),
may
Under
we
ary
approximately
4th from
p.m.
1:30
until
grant
the writ if we find that
the state
*6
adjourned
the
day.
that
The trial
court came to “a
opposite to
conclusion
court explained:
by
Supreme
that reached
[the
on a
Court]
gentlemen
Ladies and
that are here to
question of law or if the state court de
trial,
watch the
going
the Court is
to
differently
a case
than
cide^]
Su
[the
clear the courtroom for the-remainder of
preme
on a set of materially
Court]
indis
the afternoon. You are invited back
Williams,
tinguishable facts.”
529 U.S. at
morning
tomorrow
at 9
in
o’clock
the
412-13, 120
“clearly
S.Ct. 1495. The
es
Okay?
morning.
Deputies, clear the
tablished Federal
language
law”
of
building,
courtroom. And leave the
2254(d)(1)
“refers to the holdings, as
only to leave the courtroom but leave
dicta,
opposed to the
of’
Supreme
the
building.
everybody
the
See
tomorrow
Court.
Id. at
through next of the in- seating jury That we the and John the courtroom. when were going clear ju- defen- family, approached potential the Drummond a cludes the victim’s jail.... spectators. and all other There’s family ror’s husband dant’s yesterday all string things.... The Court had two incidents a of would been We involving spectators permitted where he is in so agree one of that the media in disrespect by to the Court a a disinter- showed total at least we have record very a gave deputies chambers ested outside source. in con- I him
hard time. didn’t hold Yes, Your Mr. Gentile: Honor. court, just but after that then tempt of prosecu- me see The Court: Let physical another individual —there was in going press tor . (cid:127)... I’m allow altercation between that individual who at least..... came to watch the trial. His also closed, was three While courtroom ulti- Damian Who Williams.... name’s. prosecution testified: James witnesses mately charged on a got with assault to cross- “Cricket” Roz'enblad submitted objection over peace officer. So counsel, and by examination Drummond’s I’m court- clearing the defendant Morris and Yaraldean Thomas Nathaniel just today only. room Mr. Gentile? testified on direct and both cross-examina- Yes, Mr. Gentile: [Defense Counsel] tion. at 1053. N.E.2d object to your Honor. We would find that Drummond’s Because we now enti- ruling. Court’s defendant is right to trial public Sixth Amendment tled to a- the United under ’at of the established the time disagree I States don’t Constitution. of Ohio and be- decision that of miscon- there has been some sort unreasonably applied cause that law was my brought that has been duct here Ohio, we affirm However, has not been attention. judgment the district court. defendant, to the to Mr. attributable we, therefore, Drummond, and don’t A. think punished that he should be primary argument ap Houk’s on ... having support, terms of not [of] time peal that at the family, his the nature Court of decision case, case, Ohio’s re- capital that he would *7 “clearly law was not There established.” quire making. fore, Houk, according the district record, perfect I Court: Just that the Supreme erred Court do that the one believe individual who was an of Ohio’s decision unreasonable charged contempt was not of court application of that law. Peace, yesterday, Michael is in fact John Drummond’s brother. It that the rele is uncontested Attorney] Franken: [Prosecuting Mr. Supreme vant law here is Court Waller No. 39, 2210, 104 Georgia, 467 S.Ct. 81 U.S. The Court: No? (1984) L.Ed.2d 31 and the Supreme Court says applied Mr. Franken: Michael Peace he’s of Ohio this case to Drummond’s family. have 854 at 1054- appeal, Others said he isn’t. He N.E.2d Waller, Deputy family told ad Schmuck that he was 56. - (cid:127) He’s an Sixth Amendment to Drummond. not a brother dressed accused’s though. to a trial. The trial court right public
527
public, including
excluded
if necessary,
both the
closing only
parts
those
press
family,
Waller’s friends and
of the hearing that jeopardized
inter-
days
pretrial suppres-
from all seven
of a
48-49,
ests advanced.” Id. at
104 S.Ct.
Waller,
42,
hearing.
sion
may not consider
statutory
many partial
only
per-
of defer-
cases
a few
that
standard
closure
ting
“the
dupli-
complete
from
courtroom.
require[ ] a
sons were excluded
[does not]
ence
See,
Osborne,
to
respect
e.g.,
F.3d
(applying
cation of the
68
at 98
facts
issue,”
ar-
only
at
Houk nevertheless
test
one
the modified
when
Waller
that,
Presley,
courtroom);
law
federal
was
gues
person
until
was
from the
excluded
(2d
Kuhlmann,
court-
“clearly
partial
74,
on
not
established”
v.
977 F.2d
76
Woods
2254(d)(1). Cir.1992)
purposes
for
room closures
the modified Waller
(applying
only
test when
members
the defendant’s
(but
that
It is
true
after Waller
indeed
tes-
family were excluded for one witness’s
circuit
often drew a
Presley)
courts
before
contrast,
timony).
case, in
In the instant
“partial”
“full”
distinction between
and
completely
the courtroom was almost
courtroom closures.
courts reasoned
cleared;
media
were al-
only
members
partial
implicate
did not
that
closure
remain,
it is
that
lowed
and
not clear
fairness concerns that a
secrecy
same
and
view, it
actually present.
were
In our
See, e.g. Garcia v.
total closure did.
would have been unreasonable for the
(8th
Bertsch,
748,
Cir.
470 F.3d
752-53
state court
to use the
test here.
not
Waller
2006).
generally
courts
modified
These
Williams,
407,
120
See
529 U.S.
S.Ct.
of the
test and
prong
first
Waller
(holding
1495
that
it is an unreasonable
a lesser
required the
court to show
application
“precedent
Court
if
partial
standard of
reason”
“substantial
unreasonably
the state
...
refuses
closures,
stringent
opposed
as
the more
legal principle]
[a
extend
a ... context
See,
of an
interest.”
“overriding
standard
Indeed,
Su-
apply”).
where
should
Petters,
375,
e.g.,
v.
663 F.3d
United States
preme
recognized
Court of
that
Ohio
Wal-
(8th Cir.2011) (using a
383
modified Waller
applied
ler
to this case and discussed the
test);
Osborne,
v.
United States
F.3d
analysis.
modified
test
in
four-factor
its
Cir.1995)
94,
(5th
(applying
98-99
a modi-
N.E.2d at 1054-56.
partial
fied
test for
closures after
Waller
Second,
Ninth,
noting
Eighth,
that
Carey
Houk
that
contends
under
Tenth
Eleventh
all do
Circuits
the Musladin,
549 U.S.
same).
Briley,
But see
F.3d
Walton
(2006),
“clearly
L.Ed.2d
established
Cir.2004)
(7th
431, 433
an un-
(applying
only by Supreme
federal law” is defined
closure).2
a partial
modified
test to
Waller
precedent
it is impermissible
Houk
on these circuit court distinc-
relies
us to
circuit
have in-
consider how
courts
partial
full and
tions between
closures to
Musladiri,
terpreted
Waller.
argue
clearly
that there was no
established
held that
was not
law
regarding partial
law
closures at
time
in
under circumstances
established
opinion
of the
in
Supreme Court
Ohio
-widely”
which circuit courts
in
“diverged
Drummond.
interpretations
their
law. Id.
Here, however,
This distinction between full and closures, however, opposite courts with carry does situation: circuit not Houk’s in parallel holdings, agreement all argument very Notably, points far. Houk some form of to no courts that do a Waller extends Sixth apply Waller partial Amend- Amendment fac- protection closure context—the Sixth defendants applied partial eongru- ment and form of ing some closures. While this indicated, dicta, Sherry, Pre-Presley, we we closure scenario. Johnson v. *9 439, (6th Cir.2009). would F.3d have used the unmodified Waller test in 586 445
529 among the us On the permit appeal, ence circuits does not Court vacated as au- adopt interpretation to and this holding remanded in light of Mus- thoritative, Williams, 381, see 529 U.S. Rodriguez, 1163, 549 ladin. U.S. at 127 1495 (holding only 120 that The S.Ct. 1119. Second interpret- Circuit holdings “clearly create established ed the Court’s re- directive on AEDPA purposes), law” the unanimous for only mand as an admonishment to apply court circuit consensus lends credence to Supreme holdings “clearly as estab- holding our that the of law Waller 2254(d)(1) § lished law” federal under and clearly applicable just as closures that of “the the appeals of .decisions courts divergence circuit court in Musladin the provide cannot clearly established federal that demonstrated law was II,. Rodriguez 537 law.” F.3d 109. Be- clearly not established. See id. cause the Second Circuit had relied on its precedent own differentiate Miller, Rodriguez’s also Rodriguez Houk cites 537 (2d family general from Cir.2007) public, //”), was obli- a (“Rodriguez F.3d 102 gated to that find the state court not trial case. had public original Rodri- ”) unreasonably applied (“Rodriguez Miller I the Waller on guez disposition test remand. granted (noting Circuit based Id: at 109-110 Second habeas that “Wal- interpreted on lens of ler through higher showing Waller does not demand a 68, Circuit precedent. Second F.3d 74 excluding 439 before a defendant’s friends and (2d Cir.2006). The then Supreme Court family” “AEDPA only and is concerned recon- vacated remanded the case for holding: with Waller’s that a courtroom light sideration Musladin. Miller v. test”). closure must its pass four-part 1119, 549 Rodriguez, (2007). Rodriguez
the (cid:127) Drummond, at 1054. 854 N.E.2d tion.” today. Supreme the Court It notable while is Court of Supreme At the time “gang threat of recognized the of Ohio decision, clearly applied Waller Ohio’s closure, justify violence” as reason to the closure whether closures courtroom any statement trial .court did not make or full. partial was (See in Tr. findings. effect its own to this 7274.) 35-13, . Trans., PagelD# R. B. if the next must determine that' the Su- We The district court found unreasonably ap Supreme unreasonably Court Ohio Court of Ohio had preme See 28 instant case.- plied court did the trial applied Waller because 2254(d)(1). 2254(d), § “Under U.S.C. record specific findings on the not make argu must what court determine habeas for closure. Drum- giving a reason or, ... supported could ments or theories mond, particu- F.Supp.2d at 674. decision; the state court’s supported, have lar, inqui- specific “the trial court made no it possible must is and then it ask whether feeling on the record about who ries jurists disagree that could fairminded whom,” “nowhere threatened are inconsis arguments or theories those by any party it trial record is discussed prior in a decision of tent with frightened witnesses or which which were at 786. Harrington, Court.” threatening witnesses.” spectators were enough to determine that It for us is Id. have reached a different result
we would
agree with the district court.
We
Ohio,
Supreme
habeas
than the
an over-
neither
trial
demonstrated
granted only where the state
relief is
nor
reason to
riding interest
a substantial
objectively
is
unreason
court’s decision
courtroom,
it was unreason-
close the
able. See id.
of Ohio
find
able for
Waller,
test,
at
Applying the modified Waller
otherwise. See
2210; Petters,
that the
F.3d at 383.
Court of
found
S.Ct.
Ohio
the trial court mentioned witnesses
prongs.
court had satisfied all of the
While
“threatened,”
identify the
feeling
The first
it did not
the record to
the
to disagree
us
with the district court’s
of Ohio’s conclusion that there were “sub-
true,
determination.
It is indeed
as the
stantial reasons” for the closure and Houk Supreme
found,
Court of Ohio
that
presented any arguments
has not
closure was for a limited duration and the
alternative.
press
permitted
was
to attend. Neverthe-
Applying
less,
prong
the second
entirely
why
unclear
particu-
this
test,
Court of
found that
lar closure was necessary
Ohio
place.
first
Waller,
the closure
necessary
was no broader than
See
third factor. Waller provides Review of the record no indica
Finally,
the fourth
factor re-
tion as to which
felt
Waller
witness
threatened—
quires findings
oblique
trial court’s
be “ade-
even an
reference to some
Waller,
quate
support
of-
closure.”
characteristic
a threatened witness.
2210;
Kuhlmann,
Thus,
at
shy
U.S.
104 S.Ct.
see
the trial court fell well
findings
that
(applying
supplying
apply
like this
where some
KETHLEDGE,
Judge,
Circuit
all
spectators but not
are removed from
dissenting.
The Supreme
the courtroom.
Court’s
establish,
clearly
caselaw
for ex-
does
Court’s decisions some
ample, whether
in such cases the trial
contain
legal principles,
times
numerous
“overriding”
must
an
identify
court
inter-
are sometimes stated at different
which
closure,
Waller,
favoring
est
as in
or in-
generality.
decision
levels
Court’s
interest,
only
stead
a “substantial”
as some
39, 104
in
S.Ct.
Georgia,
Waller
inferred,
circuit courts have
or perhaps
(1984)
2210,
relevant
whose grant court’s of the writ. But here time of the closure. at the trial court made no omission: such offered for the clo-
court serious reasons in scope rough pro- and tailored
sure its
portion them. The Ohio affirmed the trial court’s decision
then it opinion agree
an with or not—was that — its application and coherent in
reasoned general rule. Drummond Waller’s What America, UNITED STATES about,'rather, complains print: is the fine' Plaintiff-Appellee, strictly that the closure than was broader necessary, findings sup- that the BOOKER, Defendant-Appellant. Felix of the closure not as careful and
port were been, they detailed as should have 11-6311. No. did not the extent make clear United of Appeals, States Court which considered other alternatives. Circuit. Sixth no frivo- complaints Those are means lous, today as the court’s decision makes Argued: 2012. Oct. clear; interesting and it would been have Aug. Decided and Filed: might done see what sought them if had direct Drummond *15 just from rather than review that Court court.
habeas review from the district But jurists,”
I think that Metrish “[f]airminded — Lancaster, -, U.S..
1781, 1792, (2013), 185 L.Ed.2d could
take a different view of Drummond’s com- today pre- than the does
plaints majority —
cisely showings necessary because the spectators some but not all from
remove clearly
the courtroom were not established the time of his trial. Accord Garcia v. (8th Cir.2006).
Bertsch, 470 F.3d then, summary, only principle Waller that established at
from
the time of the closure here was limited general one the trial court must favoring
balance the interests closure those it. The Ohio courts
against opposing they
applied principle; did so
reasonably, capacious sense of “rea-