Hirsch v. Brigano

74 F. App'x 486
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 12, 2003
DocketNo. 01-4289
StatusPublished

This text of 74 F. App'x 486 (Hirsch v. Brigano) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hirsch v. Brigano, 74 F. App'x 486 (6th Cir. 2003).

Opinion

OPINION

GILMAN, Circuit Judge.

Following a jury trial in Ohio state court, Jonathan Hirsch was found guilty of aggravated murder and sentenced to life in prison without eligibility for parole for 20 years. After his conviction and sentence were affirmed on direct appeal, Hirsch filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio, asserting seven claims for relief. The district court denied the writ, but granted a certificate of appealability as to two of Hirsch’s claims: (1) that he was denied due process when the trial court permitted the prosecutor to introduce evidence of prior had acts to attack his character, and (2) that the prosecutor’s improper remarks during opening statement and closing argument resulted in a denial of due process. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

On October 27, 1994, Caroline Jones, Hirsch’s mother-in-law, was found dead near her garage. Jones had been attacked and stabbed numerous times in the chest and neck. Police officers arrived on the scene and collected blood samples, as well as hair samples from a baseball cap found near Jones’s body. The police had no immediate leads, and the case remained unsolved for over a year. They then received an inquiry from a Florida private investigator hired by Stephen Cantwell, [488]*488one of Hirsch’s former business partners. The investigator’s call led the police to interview Cantwell and Hans Cone, another former business partner of Hirsch. Both Cantwell and Cone reported that Hirsch had bragged to them about murdering his mother-in-law, providing details that only the killer would know. Hirsch’s two former business partners had not previously been acquainted.

According to Cantwell and Cone, Hirsch drove from Florida to Ohio in a friend’s car the day before the murder. Hirsch had told Cone that he was going on vacation, asked Cone to feed his dogs, and left Cone a note requesting that he make two long-distance telephone calls from Hirsch’s home. Cone reported that he made these calls, which showed up on Hirsch’s telephone bill, at 10:30 p.m. the night before the murder.

Hirsch told Cantwell and Cone that he had arrived in Ohio early on the morning of the murder and had hidden in the yard behind Jones’s apartment waiting for her. When Jones left her apartment. Hirsch attacked her with a knife and killed her. During the attack, Jones stabbed her attacker in the arm with her keys. Cone recalled seeing Hirsch’s arm bandaged shortly after the murder, and Cantwell observed scars on Hirsch’s arm sometime later. Hirsch filed after the attack, leaving his baseball cap behind. Hirsch reportedly was not concerned about leaving hair samples at the scene because he had a crew cut.

Upon returning home, Hirsch informed Cantwell that he regretted telling Cone about the murder. Hirsch and Cone had been involved in a fraudulent check scheme, and Hirsch feared that if Cone were arrested he would tell thé police about the murder as part of a plea-bargain agreement. Hirsch therefore decided to kill Cone. With the help of an accomplice. Hirsch subsequently beat Cone, shot him with a stun gun, and hit him in the head with a carbon dioxide cannister. The police, after being called by an eyewitness, arrived to find Cone barely conscious and covered in blood.

Hirsch was convicted of attempting to murder Cone. The attempted murder caused Cantwell to fear for his own safety. At this point Cantwell hired a private investigator to see if Hirsch’s story about murdering his mother-in-law was true. It was this private investigator who contacted the police in Ohio and provided the lead that eventually led to Hirsch’s arrest.

After speaking with Cantwell and Cone, the police arrested Hirsch in Florida and subsequently confirmed that the hair on the cap found at the scene was consistent with Hirsch’s hair. Hirsch put on an alibi defense at trial, but the jury found Hirsch guilty after hearing all of the evidence.

II. ANALYSIS

A. Standard of review

The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), applies to Hirsch’s case because he filed his habeas corpus petition after the effective date of AEDPA. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). A federal court is authorized to grant a writ of habeas corpus to a person in custody pursuant to a state-court judgment, but only if the adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the [489]*489facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

The Supreme Court has declared that “a federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In its discussion of the term “objectively unreasonable,” the Court stated that “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411, 120 S.Ct. 1495. A district court’s denial of the writ is subject to de novo review. Rogers v. Howes, 144 F.3d 990, 992 (6th Cir.1998).

B. Admission of prior-bad-acts evidence

Hirsch alleges that his due process rights were violated by the admission of certain evidence introduced for the alleged purpose of demonstrating that he had the propensity to murder his mother-in-law. Specifically, Hirsch takes issue with the admission of (1) a detañed account of his attempt to murder Cone, (2) evidence that he pled no contest to the attempted-murder charge, was placed on probation, and was ordered to pay Cone restitution, (3) an account of Hirsch’s and Cone’s fraudulent scams, (4) evidence of Hirsch’s military training and interest in weapons, (5) testimony relating Hirsch’s nicknames of “Psycho Jonny” and “Rambo,” (6) testimony describing Hirsch’s home as surrounded by barbed wire and vicious dogs, and (7) testimony that Hirsch had a bad temper, as demonstrated by his yelling at his wife and mother and shoving his employees.

State-law evidentiary errors are not generally cognizable in habeas corpus proceedings. Walker v. Engle, 703 F.2d 959, 962 (6th Cir.1983). But “[w]hen an evidentiary ruling is so egregious that it results in a denial of fundamental fairness, it may violate due process and thus warrant habeas relief.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Donnelly v. DeChristoforo
416 U.S. 637 (Supreme Court, 1974)
Lindh v. Murphy
521 U.S. 320 (Supreme Court, 1997)
Williams v. Taylor
529 U.S. 362 (Supreme Court, 2000)
United States v. Richard Carroll
26 F.3d 1380 (Sixth Circuit, 1994)
Fred Harry Rogers v. Carol Howes
144 F.3d 990 (Sixth Circuit, 1998)
United States v. Roquel Allen Carter
236 F.3d 777 (Sixth Circuit, 2001)
Richard Bugh v. Betty Mitchell, Warden
329 F.3d 496 (Sixth Circuit, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
74 F. App'x 486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hirsch-v-brigano-ca6-2003.