*1 self-evidently greater or less is not amount-in-controversy re the federal than removing defendant must
quirement,” a of the evi by “preponderance
prove controversy ex that the amount in
dence” threshold. jurisdictional ceeds Gafford LANGFORD, Petitioner- Mark (6th Co., F.2d v. Elec. Gen. Appellee/Cross-Appellant, Cir.1993), grounds by abrogated on other Friend, v. Corp. Hertz 1181, 175L.Ed.2d 1029 WARDEN, CORRECTIONAL ROSS burden, Bank satisfy its Attempting INSTITUTION, Respondent- showing that points America to records Appellant/Cross-Appellee. bank currently owes Nowieki $66,577.04 to the According 13-3855, on her loan. Nos. 13-3857. “[t]herefore, bank, if were to [Nowieki] Appeals, United States Court of claim], of contract her breach [on succeed Sixth Circuit. be re- only America] would [Bank $66,577.04 ..., to write off the but quired Nov. 2014. damages ‘in an subject it could also be $25,000.’” amount in excess of But the figures
bank cannot be liable for both time; either Nowieki owes
the same loan,
$66,577.04 on the or it owes her $25,000 In in credit on the loan.
excess event, $66,577.041 falls figure $75,000
short of the threshold.
Because the bank fails to demonstrate
by preponderance of the evidence controversy exceeded amount removal,
$75,000 at the time of the district jurisdiction. subject
court lacked
matter
Gafford,
See
Accordingly, we VACATE the district judgment and REMAND with in-
court’s remand the action to state
structions to
court. Moreover, $66,577.04 subject-matter ju- propriety we claimed Bank assess risdiction “at the time of removal.” William- of America includes interest fees assessed Co., through September v. Aetna Ins. 2014—well after the son Life Cir.2007). (6th The bank offers no evidence to federal court in bank removed this case concerning time. February acknowledges, the value of the loan at that 2011. As the bank
ment in Jones’ murder. *5, WL In *7. about February 2006, law reopened enforcement the case as a result of this information. Id. at *2. DONALD, BEFORE: BOGGS and Law enforcement located Nichole Smith in HOOD, Judges; Circuit Judge.* District they also interviewed the two
prisoners claiming to have information OPINION Langford. about Id. On October an Ohio grand jury again indicted DONALD, BERNICE BOUIE Circuit ford on two counts relating to Jones’ Judge. murder, death: aggravated in violation Petitioner Mark Langford, an Ohio state 2903.01, Ohio § Rev.Code Ann. and mur- prisoner, filed writ of habeas corpus der, § in violation of *4 2903.02. Id. Each pursuant 2254, § to 28 claiming U.S.C. count included what Ohio “spec- law calls a grounds several for relief from his state ification,” charging Langford that pos- trial court conviction for murder. The dis- sessed a during firearm the offense. The granted trict court and petition denied the firearm specification exposed Langford to in part, and both appealed. sides For the a mandatory minimum sentence under follow, reasons that we AFFIRM the dis- 2929.14(B)(1)(a). § trict court in respects. all
Langford moved the state trial court to I. BACKGROUND dismiss the indictment ground on the that pre-indictment delay violated his state 1995, In Langford Mark and Marlon and federal due process rights and his Jones were members of rival gangs. State right present Langford, defense. 9AP-1140, Langford, No. 3042185, Langford WL argued (Ohio 3042185, 2010). 5, at *6 Ct.App. Aug. key that several including Paul witnesses— In rivalry, the course of this Langford was Mike”) Michael (“Big Ross Don Gentry retaliation, up. beaten Id. In July (also Mike”), “Big known as and Deshaun 1995, Langford, friends, possibly and his Williams —were now deceased. Id. at *2- shot at the they individuals whom believed 3. Additionally, evidentiary at an hearing, *1, had attacked Langford. Id. at *6. a detective testified that law enforcement gunfire. *1, Jones died in the Id. at *6. destroyed had two pieces of forensic evi- 4, 1995, On August the State of Ohio in- dence: the bullet that killed Jones and a dicted Langford for Jones’ murder. Id. at cartridge containing box Langford’s fin- trial, *1. At witness Nichole Smith did not gerprint. Id. at *2. On June subpoena honor her and appear testify. court, judge, trial in open denied Lang- Subsequently, Id. on November ford’s Langford motion to dismiss because indictment, the state dismissed the and the did not demonstrate that that pre-indict- court entry ordered an of nolle prosequi. delay ment caused him prejudice. actual In prisoners, 2005 two federal Ar- Jason Id. at *3. Jackson, nold and Isaac informed law en- forcement they that heard while On October proceeded the case incarcerated, he was confess to involve- to trial. The presented State of Ohio two * Hood, Page Michigan, Honorable Denise sitting by designation. United Judge States District for the Eastern District finding Lang- Lang- required that murder at trial. The first was that
theories shooter, actual and therefore caused the death of anoth- “purposely ford was the ford offender in the homicide. principal Finally, the court instructed er.” theory was that was an second as a could be “convicted accomplice. Nichole Smith testified complicitor or as a or an principal offender spend time with “De- in she would or all counts and aider and abetter that in She further testified boys.” troit in The in- specifications the indictment.” “F boys” “Detroit and the July 1995 the stated: structions (named for Fairwood and group” and L guilty the defendant you Before can find Roads), was a of which Jones Livingston complicitor of a crime as a or aider drugs.” had a feud over “territorial part, abettor, beyond a reason- you must find boys” L “beat that the “F and She testified ... aided able doubt that pretty bad.” Smith testi- [up Langford] commit- purposely or abetted another July she night fied that on the The defendant ting the offenses.... alleys,” “hanging out guilty complicity cannot be found un- get it was “time to [the ford told her that committed, actually less the offense was boys].” F and L Smith also testified may guilty complicity be found but he confederates had three Langford and his of- attempt in an to comit [sic] (two rifle), handguns and one but weapons .... is one fense An aider or abettor Langford did not have the rifle. *5 aids, assists, supports, encourages, who boys walked with the Detroit Smith with, advises, or incites an- cooperates F L and she group, direction of the and crime, partici- to comit a and other [sic] boys witnessed the Detroit with the rifle in the commission of the offense pates group. at the F and L Smith testi- shoot act, word, gesture. by some Langford fied that she also witnessed shooting group. at the F and L The two 2009, 27, jury On returned October prisoners, Jason Arnold and Isaac federal One, jury ac- its verdict. On Count Jackson, con- also testified quitted Langford aggravated of murder in Jones’ death. fessed to his involvement but convicted specification and the firearm charged On October 2009 the court of mur- him of the lesser included offense One, in- jury. On Count the court Two, jury convicted der. On Count jury that in order to convict structed acquitted him Langford of murder but of murder, aggravated of it needed specification. the firearm The court sen- Langford “purposely and with to find Langford, only, Two to tenced Count design and caused the prior calculation years imprisonment. fifteen to life Jones,” provided Marlon and it a death of Appeals, the Ohio appeal On Court Ohio Rev. “purposely.” definition of See assignments five of er- Langford raised (“A pur- § acts person Code Ann. 2901.22 rors, only one of which was sustained. See specific when it is his intention to posely at *1. The ”). Langford, cause a certain result.... accept Lang- did not Supreme Ohio Court murder, also instructed on the elements 127 (as appeal. Langford, ford’s See State v. a lesser charged in both Count One (2011) offense) N.E.2d 1266 Two, Ohio St.3d 939 included and and was Count (table). Appeals The Ohio denied Court in the “purposely” told that the word used Langford’s application reopening, for definition of that crime had the same again did not Supreme the Ohio meaning previously explained. as the court appeal for review. accept Langford’s stated Specifically, State v. 128 Ohio St.3d facts light presented evidence (2011)(table). N.E.2d in the State court proceeding. Langford petitioned in federal district 2254(d). § 28 U.S.C. The “unreasonable court for a writ of corpus, habeas seeking application” clause authorizes federal (1)
relief on grounds: several pre- courts grant the writ when a “state- indictment delay rights violated his to due court decision unreasonably applies the (2) process trial; and a fair the trial judge law of Supreme [the Court] to the facts of failed to instruct on the rea mens prisoner’s case.” Williams v. Taylor, (3) complicity; for his appellate coun 529 U.S. 120 S.Ct. sel was ineffective failing sev raise (2000). L.Ed.2d 389 The state-court appli- eral issues to the state court of appeals. A cation of federal law must be “objectively magistrate judge recommended that unreasonable.” Id. grant district court relief on the second claim and deny relief on the others. See III. ANALYSIS Langford Warden, Inst., v. Ross Corr. No. A. Jury Instruction
2:12-CV-0096,
(S.D.Ohio
instruction issue Langford’s and dismissed “The gives Constitution a criminal other Warden, claims. See Langford v. defendant the right to have a deter Inst., 2:12-CV-96, Ross Corr. No. mine, doubt, beyond reasonable guilt his (S.D.Ohio 2013). WL 3223379 June every element of the crime with which charged.” he is Gaudin, United States Respondent appeals Warden the district 506, 522-23, court’s decision granting Langford a condi- L.Ed.2d 444 law, Under Ohio tional writ of corpus habeas on the jury defendant can be convicted under a theory instruction claim. Langford appeals the *6 of accomplice liability if he with “act[s] the district court’s dismissal of pre-indict- his kind of culpability required for the com delay ment claim and his ineffective assis- mission of an offense.” Ohio Rev.Code tance of counsel claim. 2923.03(A). § Ann. A person guilty of II. complicity STANDARD OF prosecuted “shall be pun REVIEW ished as if he principal were a offender.” We review the district court’s legal con- 2923.03(F). § Id. support a “[T]o convic regarding Langford’s clusions peti- habeas tion for complicity ... the evidence must de tion novo. Lafler, v. Davis 658 F.3d show ... that the defendant shared the (6th Cir.2011) (en banc). A feder- criminal intent of the principal.” State v. al may court grant not a petition for a writ Johnson, 93 Ohio St.3d 754 N.E.2d of corpus habeas “any for claim was Langford argues that the adjudicated on the merits State court trial court’s failure to so instruct violates proceedings,” unless the state proceedings: Supreme Court law. (1) resulted in a decision that con- to, trary or involved an unreasonable Here, the trial court instructed the of, application clearly established Feder- that it could Langford convict anas accom- law, al by determined the Supreme plice if it found that he “aided or abetted States; of the Court or United another in purposely committing the of- (2) resulted in a decision that was based fenses.” The trial court did not instruct on an unreasonable determination of the the jury that complicity required that review, then, is at 785. Our Id. culpability required with the
Langford act
decision that
i.e.,
Appeals’
Ohio
of
murder,
The
Ohio Court
purposely.
mens rea did
the trial court
to instruct on
noted that
failure
Appeals
Court
meaning
right.
Langford’s jury
on
trial
did instruct
violate
reasoned:
The court
“purposely.”
is whether
question
pivotal
“The
verdict, found that
its
jury, by
The
[Supreme
application
court’s
state
intention
specific
had a
Id. “A state
was unreasonable.”
law]
Jones, either
Marlon
the death of
cause
a claim lacks
court’s determination
the tran-
or
by his own intention
relief so
habeas
federal
precludes
merit
who was
of the shooter
spired intent
disagree
jurists could
long as fairminded
Ruger .357. The
actually using the
the state court’s deci
on the correctness of
by the
misled
not have been
could
(internal
omit
quotation
sion.” Id. at 786
it have found
charge given, nor could
ted).
may grant the writ based
“[W]e
an error in
upon
based
Langford guilty
only in
jury instructions
errors in state
jury charge.
Lafler,
Daniels v.
extraordinary cases.”
The
Cir.2007)
(6th
(citing
explain
It did not
did not elaborate.
court
764, 780, 110
Jeffers,
Lewis v.
U.S.
determined
jury “by
its verdict”
how
(1990)).
As
Then, the complici- verb, instructions address fies completely different in and ty: may “The defendant be doing convicted as a so open question the leaves as to the principal offender or complicitor as a anor manner in Langford which must have “aid- aider any and abettor to or all counts and ed and abetted another.” When properly
430 per- of another “thereby causes the death abetting an- aiding and “purposely placed, accurately held the Supreme murder committing in son.” Id. other” that, as a in order to be convicted conveys on causa- court’s failure to elaborate trial have had the Langford must complicitor, judge trial was not error where “the tion to aid and abet the murder specific intent statutory lan- jury” the exact read to the placed, the improperly When of Jones. There, 153, at 97 1730. gúage. Id. S.Ct. erroneously that in order informed jury is prejudice “claim of [was] the defendant’s complicitor, as a to convict give any explana- to based on the failure another, or abetted must have aided ford statutory reading beyond tion “purpose- that the other and it is sufficient element.” the causation language itself of These two murder. fully committ[ed]” added). (emphasis 1730 Id. at 97 S.Ct. equivalents. functional are not scenarios that a trial court requirement There no is Thus, say it is insufficient the elements of do more than instruct on correct, error is or that its instruction however, Here, the trial court an offense. fully discussed more below— harmless —as language even read the did not “purposely” ap- simply because the word 2923.03, complicity § Ohio’s statute.1 in the sentence. Accord- pears somewhere “purposely” complic- the word ingly, Further, reviewing even the “totali ity reasonably cannot be read instruction trial, are ty of the circumstances” at we convey must accurately persuaded not was sufficient for complicity required act with the kind of the mens rea needed for com ly aware of underlying offense. McNeil, Middleton v. 541 plicity. Citing addition, Respondent’s reliance In 124 S.Ct. 158 L.Ed.2d Kibbe, 145, 97 on Henderson v. 431 U.S. (2004), Respondent asks us to consider (1977) is mis- S.Ct. 52 L.Ed.2d light prosecu instructions of the the facts of this case. placed applied argument at trial. In Middle closing tor’s Henderson, robbed an In the defendant ton, law does the Court found that federal him on an man and abandoned intoxicated appellate a state court from prohibit in near zero-de- unlighted night road at prosecutor’s argument that a assuming thereafter, the man gree Shortly weather. jury charge. an Mid ambiguous clarifies Id. at was hit a truck and died. dleton, charged The state the defen- S.Ct. 1730. Here, reproduces in his brief Respondent a statute that dant with murder under eight pages prosecutor’s closing of the ar circum- provided guilt when “under provides accompa but almost no gument, evincing depraved indifference to stances legal argument. Having reviewed nying life, recklessly engages in human [one] argument, we do not find prosecutor’s risk of grave conduct which creates a analysis. Respondent it alters thereby person, another death to use of suggests prosecutor’s Id. person.” the death of another causes “intend,” “intentions,” “want like words (alteration marks 97 S.Ct. ed,” them,” eight pages over omitted). “help sought The defendant habeas shows that the closing argument, somehow relief, that the trial court should arguing in the meaning prosecutor cured defect instructed the on the have 1730. A of New York’s in Henderson 1. Also relevant for the Court initially appeals first raised the chal- intermediate court of that the defendant did not from the court’s affir- sufficiency in his dissent lenge issue Henderson, id. the defendant’s conviction. See U.S. at mance of appeal. direct See *9 Respondent’s instructions. argument is principal. See Langford, 459196, 2013 WL persuasive. not hardly It needs stating at *15. the use of words like “intend” and
“wanted” in the course of discussing the
narrative of the crime do not inform a jury
Finally, Respondent argues that
that an accomplice must
share
mens
any failure to instruct on an element of the
rea of the principal.
prosecutor’s
offense was harmless error. A trial
closing argument,
if anything, rendered
court’s failure to charge an element of an
applicable
law more opaque. For in- offense
subject
to harmless error analy
stance, Respondent highlights the follow-
States,
sis. See Neder v. United
527 U.S.
ing statement
made
the prosecutor at
1, 12,
1827,
L.Ed.2d 35
one point in closing argument: “It doesn’t
(1999).
Supreme
Court has further
matter who actually fired the bullet that
recognized that a trial court’s failure to
killed Marlon Jones. Everybody helped.
instruct fully and accurately
the nec
about
Anybody
helped
who
in any way is equally essary mens
for accomplice
rea
liability is
guilty, equally guilty
complicity.”
This
reviewed for harmless error. See Califor
statement, if anything, compounded the er-
v. Roy,
3-4,
nia
117 S.Ct.
ror in
instructions.
(1996).
that the false three, Jones, Langford was one short, that the erroneous Id. In immaterial. shooting a .22- was Langford the omit- that because was harmless instruction testimo- handgun. “[N]o Id. “uncontested and caliber was ted element both fa- Langford fired the ny Id. establishes that overwhelming evidence.” by supported Here, jury was Although Id. the enti- the instruc- tal shot.” 1827. at inferences and convict to its supported nor tled draw own neither uncontested tion is offender, “it at is principal as a overwhelming evidence. by so, it more likely, if not least as States, re we v. United In Dawson an aider and abettor.” him as convicted a de which petition a habeas viewed *15. at We Langford, convictions for his fendant claimed that the any conclusions about to draw decline were infirm possession firearm unlawful It jury’s conviction. actual basis for the jury the instructed the trial court because was not the evidence suffices to note that theory of con on a that it could convict Neder, “overwhelming,” alone great —let 347, 349 possession. structive 1827—that at 119 S.Ct. 527 U.S. Cir.2012). (6th giving the We found offender. The failure was a principal ford was er instruction constructive-possession complicity, mens rea of on to instruct testimony sug no there “was ror because therefore, influence in a substantial had constructive defendant] gesting [the determining jury’s verdict. firearm.” Id. at 350. ly possessed Nonetheless, the error we held that was because, “[vjiewing record harmless a recognize high bar that We whole, jury it clear the found a [wa]s re before obtaining must clear petitioner theory on a based guilty defendant]
[the
“The bur
claim.
jury
lief on a
instruction
Id.
possession.”
actual
of
an
demonstrating that
erroneous
den of
matter,
agree
we
with the
In the instant
that it will
prejudicial
was so
instruction
appears
this “case
magistrate
attack on the constitu
support a collateral
situation.”
just
opposite
present
judgment
court’s
validity of a state
tional
459196, at *15. “It
Langford, 2013 WL
showing required
greater
even
than
that,”
trial
had the
court
be said
cannot
appeal.”
on
plain error
direct
to establish
con-
that it could
instructed the
Henderson,
at
prison
the failure to instruct on an
Daniels,
element that
Additionally, in
we noted that
*11
Neder,
trial,
was uncontested at
527 U.S.
the trial court accurately stated the mens
1827;
119 S.Ct.
or an instruction
requirement
Daniels,
rea
twice.
correctly
that
thrice
stated the law and at 742. This “made clear that
the jury
it, Middleton,
incorrectly
once
stated
541 could not convict [the defendant] without
437-38, 124
finding
S.Ct. 1830.
that” he shared the mental state of
principal
the
offense.
Id. at 742-43.
This case differs even from
in-
others
arguably misleading
“[O]ne
statement of
volving claims that a trial court erred in
the
requirement,”
said,
mens rea
we
was
incorrectly instructing on the mens rea of
not “likely to have caused the jury to
complicity.
instance,
Lafler,
Daniels v.
for
ignore repeated prior statements of the
involved a defendant convicted of murder
requirement.”
correct
Here,
Id. at 743.
and assault for helping a friend burn down the trial court
properly
failed to
instruct
house,
a
killing
three children. 501
the
on the mens rea of complicity.
J.).
(Boggs,
F.3d at 737
On petition for
relief,
habeas
petitioner argued
the
B. Pre-Indictment Delay
passage
one
in the
might
instructions
Langford also seeks relief on the
have led the
him
convict
even if it
ground that
delay
the
between the offense
did not believe that
prosecution proved
and the indictment
right
violates his
to a
requirement
mens rea
of complicity.
fair trial
present
and to
a defense. Jones
Id. at 740.
In rejecting
petitioner’s
July
was shot on
grand
1995. A
claim, we observed that
challenged
indicted Langford on October
instruction
necessarily
was not even
inac-
Langford argues that
thirteen-year
this
curate, as it
necessary
“state[d]
condition
delay was unconstitutional.
guilt,
for
not a sufficient condition.” Id. at
Due
“[T]he
Process Clause of the Fifth
742. We also noted that
there was no
[may] require
Amendment
dismissal of
evidence
challenged
instruction
indictment if it were
[an]
shown ...
constituted an incorrect
statement of
pre-indictment
delay ... caused sub-
Here,
Michigan
contrast,
law. Id.
even
prejudice
stantial
appellees’ rights
to a
Ohio’smodel
suggest
fair trial and that the delay was an inten-
the trial court’s failure to instruct on the
tional
gain
device to
tactical advantage
mens rea of complicity
significant.
over the accused.” United States v. Mar-
The model instruction states:
ion,
307, 324,
404 U.S.
charged
The defendant is
complici-
with
(1971).
L.Ed.2d 468
It is insufficient for a
ty. in the
commission
the offense of
petitioner merely
pre-indict-
to show that
0specify offense).
you
Before
can find
delay
ment
prejudice.
caused him actual
guilty, you
defendant
must find be-
process
Due
prosecution
does not “ba[r]
yond
doubt,
a reasonable
...
whenever a defendant suffers prejudice as
(insert
culpable mental state
preindictment
a result of
delay.” United
required
one is
the commission
if
Lovasco,
States v.
principal offense)
[aided or abetted]
S.Ct.
process,
to a state court and
lapse
presented
of been
by the
prejudiced
been somewhat
relief,
may
it
be
state court has denied
n.
The trial court
Lovasco
gain
advantage
Langford.
a tactical
over
Langford did not demonstrate
cluded that
“I
delay. Lang The trial court stated:
don’t know how
from the
prejudice
actual
3042185,
proceed
why
at *3. The Ohio or
the State was
able
ford, 2010 WL
why
with its case or
or how it chose not to
Appeals, applying a four-factor
Court of
pursue
again
407
this case
until 2008.”
Wingo,
derived from Barker v.
test
2182,
Appeals
101 Ohio
did not address
33 L.Ed.2d
S.Ct.
trial
(1972),
delay
reasons for the
but affirmed the
similarly
Langford
determined that
Langford,
ruling.
of the
court’s
WL
prejudice
no
as
result
suffered
magistrate judge
at *5. The
cor-
magistrate
delay.
Id. at *3-5. As
noted,
rectly noted:
ultimate
result
correctly
“[T]he
the Ohio Court of
courts is entitled to
legal stan
reached
the state
applied the incorrect
Appeals
analytical
AEDPA deference even if the
Langford, 2013 WL
dard. See
respects.”
in some
delay
post-indict
process
was flawed
*7. “Pre-indictment
Langford,
issues.”
2013 WL
delay present
separate
ment
suggesting
offers no evidence
Schaffer,
586 F.3d
ford
States
United
(6th Cir.2009).
noted,
But,
delayed the indictment
or-
prosecution
we do
over the
gain
advantage
der to
tactical
legal
court’s
reason
not evaluate
state
Lovasco,
431 U.S. at
Harrington, 131 accused.
ing, however flawed. See
Instead,
asks us to have raised additional arguments about
presume bad
part
instructions,
faith
pros
an argument that a
only
ecution because “the
rational explana
prejudicial
witness’
comment warranted a
mistrial,
delayed
tion is that
the State
indicting
and an argument
the trial
gain
order to
a tactical
advan
court erred in failing to suppress certain
tage.” We decline to
draw
inference.
statements. Langford presented these ar-
It is incumbent on Langford
guments
to show that
to the Ohio Court of Appeals in
delay
was prompted by a desire to gain
his motion to reopen the appeal. See
a tactical advantage
trial. United
at *16-18.
Brown,
(6th
States v.
Cir.
law,
Under federal
to establish ineffec
1992). Where a
has no
direct
tive
counsel,
assistance of
a criminal defen
faith,
of bad
previously
evidence
we have
dant must first
repre
show
“counsel’s
to infer
improper prosecutorial
declined
an
sentation fell
objective
below an
standard
motive. Id.
of reasonableness.” Strickland v. Wash
a showing
prosecution
Even
*13
ington,
2052,
466 U.S.
104 S.Ct.
prepared
was
to proceed to trial earlier
(1984).
80
674
L.Ed.2d
inquiry
This
looks
than it did is insufficient to meet the Lo- at whether
trial
fell
counsel
below the
Lovasco,
standard.
vasco
U.S.
standard of a competent attorney.
Id. at
C.
Ineffective Assistance
defendant’s
ineffective-assistance
claim
Appellate
of
Counsel
even when
perform
counsel failed to
A criminal
the right
defendant has
investigation before a penalty-phase hear
to effective assistance of counsel on a
ing
sentence);
first
that resulted in a death
see
appeal
right.
as of
Lucey,
Hook,
Evitts v.
Bobby
4, 9-13,
469 also
v. Van
387, 396-97,
(2009) (re
83 L.Ed.2d
that “the solely trial guilty argued based have findings counsel should allowed declining give in an instruc- [Langford’s] presence.” court erred upon may magistrate place it advising tion WL issue, testimony jail- reviewing weight on the judge, independently diminished gave made it The trial court agreed “that the house informants. instruction, peti- telling to find sufficiently clear that order general theory, he had complicity credibility on a of witnesses” guilty tioner “consider bias, any, act furtherance if to- to have committed some “interest and to consider magistrate the crime.” Id. at *19. all the facts and circumstances gether with specific testimony.” The Ohio surrounding *14 further stated: “Even the judge objected— Langford’s claim [Langford] Appeals to which denied language Court enough if it is not required ‘mere can be that Ohio does presence ground on the that of- cell- primary charge given to and does aid the to be when special a intended pres- than testify. Langford, that the more mates or fellow inmates fender’—told (ie. complicitor’s magistrate the fact that the The at *18. ence WL of- actually- primary the that this issue would not presence judge aided determined fender) convict.” on direct needed in order to succeeded if raised likely have Langford, citing State appeal. Id. Id. Nelson, 79, 303 36 Ohio St.2d N.E.2d that on our Langford relies statement (1973), a requires law claims Ohio crime at the scene of the presence “mere requested jury instruc- give trial court to a defendant enough ... not to convict [is] tion if it contains a correct statement States v. aiding abetting.” United proposi- stands for no such law. Nelson Cir.1991). (6th Head, 1361, 1373 tion. that the tri- argues Additionally, Langford incorrect instruction on gave al eourt an Prejudicial Comment The trial court instructed causation. Warranting Mistrial to act is an act or failure jury: “Cause examination, prosecu direct sequence On the natural continuous which prison of the informants tion one and without asked directly produces death his Langford discussed involvement why it not have Cause would occurred. which responded: The witness Jones’ is the natural and murder. occurs when the death me, up it to he brought first to “When he or failure result act foreseeable killed some things like he had say used to Ohio law re- Langford submits that act.” before, Ap- The Ohio Court of so.” instruction. one causation quires different peals found that the trial court “sustained statements, randa. In these objection an to the statement it sometimes acknowledged because being nearby the could be referring construed as to one scene of the or crime but denied being the more shooter. Langford, other homicides and made it clear to at they should *17. Langford did not testify consider at trial. any purpose statement The whatsoever.” Ohio of Appeals denied claim, ford’s stating: WL “Nothing *17. in the rec- trial court Langford’s denied ord motion for a before us indicates that the trial court Langford argues mistrial. should appellate have sustained the motion sup- to counsel press was ineffective for failing argue Langford’s statements or that this was error. statements actually were harmful to Lang- ford’s case.” Id. magistrate judge The Ohio Appeals Court of determined determined that even any if statements court trial was within its discre- about being near the crime scene merited tion deny a mistrial. Langford, 2013 suppression, “there was enough other evi- WL magistrate *18. The placing dence petitioner at or near noted that a trial ruling deny court’s scene of the crime any statements in mistrial be “will sustained on ‘ab- appeal ” which he conceded as much would have sent an abuse of discretion.’ Id. at *20 largely been cumulative.” Id. at 21. Treesh, (quoting State v. 90 Ohio St.3d (2001)). 739 N.E.2d Our thor- of a state After review court’s determina oughly analyzing the tion that exchange between a criminal defendant received prosecutor trial, and the witness at effective particularly assistance is deferen magistrate judge tial. apply reasoned: We do not Strickland directly. Rather, the question pivotal is whether the ambiguous
Given the
nature of the ref-
state court’s application of the Strickland
erence,
immediate objection,
the lack
standard was unreasonable. Harrington,
additional testimony
argument
counsel failing was ineffective for argue required raise all claims desired a trial court erred in suppress counsel, defendant if profes- as a matter of ing certain statements that judgment, made sional present decides not to to law Barnes, enforcement in violation of points. Mi- those v. Jones 463 of a guilty find the defendant you can 77 L.Ed.2d Straub, an aider and
(1983); complicitor v. also Caver crime as see Cir.2003). (6th Langford also abettor, ... find ... you must on ineffective-assistance prevail cannot abetted an- aided or purposely lack merit. underlying if the issues claim the offenses.”1 Be- committing other Mitchell, F.3d See Moore misplace- that the I do not believe cause Cir.2013). (6th Accordingly, Langford five “purposely” by ment of the word ground. on this obtain habeas relief cannot relief, respect- I gives words rise to habeas fully dissent. CONCLUSION IV. the defense rested On October jury that a requires law Supreme Court counsel, judge, its case. The trial defense every element of guilty
ñnd defendant preliminary then held a prosecutor and the Gaudin, 515 U.S. at charged. the crime jury instructions. discussion about law, 522-23, Ohio 2310. Under judge counsel told the Langford’s same must act with the accomplice an ver- given proposed him a prosecutor had guilty of the principal criminal intent as previous Johnson, jury of the instructions at 801. The sion 754 N.E.2d crime. jury he trial court did not instruct counsel stated that day. Langford’s a mens rea element. The complicity has version but prosecution’s reviewed the had contrary to the state court’s decision objections requested modifi- had some language of light unreasonable in judge invited defense counsel cations. and the record as a jury instructions to do a prosecutor and the into chambers whole. The state court’s decisions through sort those issues.” “preliminary claims, though perhaps Langford’s other so, to do and the agreed Both counsel unrea- questioning, from are not not free adjourned court. judge Court law. applications Supreme sonable afternoon, and resumed later that magistrate judge’s with the agree We re- parties conducted an on-the-record Report and Recommendation thorough judge view of the instructions. Ac- with the district court’s decision. prose- that defense counsel and the noted we AFFIRM the district court’s cordingly, provided judge separate cop- cutor had judgment. instructions. As the ies of BOGGS, “integrated counsel dissenting. explained, defense Judge, Circuit to include addition- those giv- that was The actual instruction like to have al instructions that he would you “Before can find the defen- en read: deletions provided to the as well as *16 complicitor or guilty dant of a crime as like for the Court to consid- that he would abettor, ... you and must find an aider originally provided er were ... aided or abetted the defendant agreed The to work from parties State.” committing the of- purposely another in preliminary in their integrated copy parties agree All that the ideal fenses.” jury “Before review of the instructions. jury instruction would have read: principal required for the commission of the model 1. This instruction tracks Ohio’s instruction, offense) you which states: "Before can in commit- abetted] or another [aided you guilty, offense).” must find be- find the defendant (specify ting offense of 2-OJI- doubt, yond that ... the defen- a reasonable CR 523.03. (insert culpable mental state if one is dant discussion, During this the judge asked judge parties and both agreed to conduct a counsel if they any objections had to the second on-the-record review of the revised complicity section of the proposed jury prior closing argu- instructions. Langford’s flys- counsel ments the following week. At the end of peeked the very issue that now forms the the discussion, Langford’s counsel as- basis Langford’s petition. habeas The sumed responsibility for e-mailing a re- following discussion among occurred vised version of the instructions to the (Mr. judge, prosecutor Lowe), and de- prosecution. judge The adjourned then (Mr. Gatterdam). fense counsel court until Monday afternoon.
THE COURT: I think that there was Court resumed as scheduled on Monday the complicity issue that was discussed afternoon. judge noted that she had in chambers. received a revised version of the in- structions prosecution. from the MR. LOWE: Okay. Judge, complici- and the parties conducted a second ty think Mr. agrees Gatterdam —I on-the-record review of instructions, and/or, we can do but I think what we including the complicity instruction. The decided to was I do think going we were following discussion occurred: to take out procured “solicited or anoth- THE else, Counsel, COURT: Anything or,” er to commit the offense and I think we need to change? we just are go going “aiding with MR. GATTERDAM: I typo have a abetting another in committing the of- page 11. I you’re don’t know if page fenses.” THE Okay. COURT: Mr. Gat- 11 now or 12. It was the full para- last terdam, you do is, see where that text or graph, with, starts you “Before can find do you have comment? the defendant of a crime complici- aas MR. I GATTERDAM: do. I guess I tor.” preliminarily just want to make sure THE Yes. COURT: That’s page still it, that-and until we see I I guess don’t MR. GATTERDAM: On or about the know whether I can respond. 18th day blah-blah, July, Agg. Mur- The complicity says section you der or or Murder aided and abetted need to culpable insert the mental state another in “knowingly committing" in- go then into the aided abetted ” stead “committed. language and definitions, and I pre- THE sume that will be done COURT: All right. we revise. Got you. Okay. MR. LOWE: Yes.
MR. added). GATTERDAM: So I will probably (emphasis Thus, Langford’s coun- objection, now, have no but as it is I’m very sel examined the that is sentence now not clear. fact, closely enough, in to catch a issue— typo. yet MR. And agree objection LOWE: We counsel made no mental state needs about the “purposely” to be there. in being word wrong place in the sentence. added). (emphasis Thus, it appears that this version of proposed jury instruc- Additionally, any error in in- omitted mens rea element tions error, structions is harmless light *17 complicity. Langford’s specifically counsel evidence that presented was at trial. A requested that the court the culpa- “insert trial court’s charge failure to an element of mental ble go state and then the into aided an offense is subject to harmless-error or abetted language and definitions.” analysis. States, The v. Neder United 527 U.S.
440 immediately the attack avenge to 1827, 35 tion and 144 L.Ed.2d 119 S.Ct. is, simply no there was has, That Langford.
(1999).
partic
in
Supreme
jury
allowed the
have
evidence that would
failure
ular,
a trial court’s
recognized that
strict-liability
under a
Langford
convict
accurately about the
fully and
to instruct
complicity.
of
liability conception
accomplice
rea for
necessary mens
error. See Cali
for harmless
reviewed
is
was
that
that the instruction
It is true
2, 3-4, 117 S.Ct.
Roy,
v.
fornia
model instruc-
track Ohio’s
does not
given
habeas,
(1996). On
136 L.Ed.2d
instruction
fact that
But “the
tion.
it “had sub
harmless unless
an error is
law is
under state
allegedly incorrect
in
influence
injurious effect or
and
stantial
relief.” Estelle
for habeas
not a basis
Brecht v.
verdict.”
determining
jury’s
71-72,
McGuire,
112 S.Ct.
502 U.S.
Abrahamson,
113 S.Ct.
(1991).
“Federal
L.Ed.2d 385
1710, 123L.Ed.2d 353
relief,
grant
do not
habeas courts therefore
court, simply
States,
might
appellate
a state
we re-
In Dawson v. United
may have been
the instruction
in
a de- because
petition
which
viewed a habeas
to the
mod-
comparison
[state]
in
deficient
his convictions
claimed that
fendant
475. The essen-
invalid el.” Id.
were
possession
firearm
unlawful
ailing
instruc-
is “whether
question
tial
instructed the
the trial court
because
the entire trial
infected
tion
itself so
theory
a
of con-
convict on
that it could
violates due
resulting conviction
that
possession.
structive
“that the
Cir.2012).
It is insufficient
(6th
giving
process.”
Ibid.
found that
We
erroneous,
undesirable,
was er-
instruction
instruction
constructive-possession
Donnelly v.
universally condemned.”
sug-
even
testimony
no
there “was
ror because
637, 643, 94 S.Ct.
DeChristoforo, 416 U.S.
constructive-
gesting
defendant]
that [the
(internal
(1974)
quo-
L.Ed.2d 431
firearm.”
Id. at 350.
ly possessed the
omitted).
citation
tation marks and
Nonetheless,
that the error was
we held
record as
“[viewing the
harmless because
may grant
“we
court has said that
Our
whole,
jury found [the
it
clear the
[wa]s
in state
writ based on errors
theory of
on a
guilty based
defendant]
extraordinary
in
cases.”
only
instructions
possession.”
actual
Ibid.
(6th
735, 741
F.3d
Lafler,
Daniels v.
Cir.2007).
Daniels,
claim
we denied a
In
Here,
evidence at trial established
though
“even
one
Langford’s
similar
boys”
up
“F
L
beat
and
contained
therefore,
had a motive
sentence
that
misleading state-
confusing
arguably
Additionally, Nichole
revenge.
to seek
Here, the
Id. at 737.
ment of the law.”
that she witnessed
Smith testified
given was not the
that was
And
instruction
group.
at the F and L
shooting
ford
been
ideally would have
exact one that
Arnold and
prisoners, Jason
two federal
wrong
not so
Jackson,
given.
It was
con-
testified
Isaac
involved,
discussions indicated
whose
death.
those
his involvement
Jones’s
fessed to
right, no-
trying
get
it
they were
to disbe-
certainly was entitled
That
of one word.
displacement
no evi-
ticed
testimony, but there was
lieve this
relief.
for habeas
provide
a basis
under a
does
support conviction
dence at all to
there is a
only “whether
must consider
Lang- We
liability where
theory
accomplice
has
likelihood
reasonable
ford,
production
in a
say, performed
way
instruction
challenged
applied
motivat-
and, thereby, unwittingly
Hamlet
Estelle,
violates the Constitution.”
ac-
purposeful
to take
ed Jones’s shooter
*18
(internal
ed). Because I do not believe there in light
such a likelihood as a record
whole, respectfully I dissent. America,
UNITED STATES of
Plaintiff-Appellee, MENDEZ,
Israel Gonzales
Defendant-Appellant.
No. 13-2148. Appeals,
United States Court of
Sixth Circuit.
Nov. COOK,
BEFORE: MOORE and Circuit STEEH, Judges; District Judge.* * Steeh, George Michigan, sitting by designation. C. Honorable United States Judge District for the Eastern District