James H. Brown, Iii, Petitioner-Appellant/ Cross-Appellee v. Michael O'dea, Warden, Eastern Kentucky Correctional Complex, Respondent-Appellee

187 F.3d 572, 1999 U.S. App. LEXIS 18230, 1999 WL 587209

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 5, 1999
• Docket: 97-6355, 97-6425
• Status: Published

Opinions

DUGGAN, D. J., delivered the opinion of the court. MERRITT (pp. 580-83), and MOORE (pp. 583-87), JJ., delivered separate concurring opinions.

DUGGAN, District Judge.

This matter is before the Court on petitioner’s appeal from the district court’s dismissal of his 28 U.S.C. § 2254 petition for writ of habeas corpus. Petitioner is currently incarcerated at the Eastern Kentucky Correctional Complex.

Petitioner filed a § 2254 petition for writ of habeas corpus in the United States District Court for the Eastern District of Kentucky, challenging his conviction in Kentucky state court for murder, for which he was sentenced to twenty years imprisonment. The district court denied the petition; however, it granted a certificate of appealability so that petitioner could appeal the court’s denial of the writ. This appeal ensued.

Petitioner and his brother, Mark Brown, were convicted in 1976 of the murder of Bryant Dudley. Petitioner was sentenced to twenty years imprisonment on October 15, 1976 but released on a state court bond pending appeal on October 30, 1976. On October 5, 1977, the Kentucky Supreme Court dismissed petitioner’s direct appeal as untimely. On October 31, 1977, petitioner filed a petition for writ of habeas corpus contending that the dismissal of his direct appeal was in error. On February 6, 1978, the district court denied petitioner’s application due to his failure to exhaust his state court remedies, but retained the case on its docket pending exhaustion of those remedies.

The Kentucky Supreme Court granted petitioner’s motion for a belated appeal on March 17,1978, but dismissed it on August 22, 1978. On August 24, 1978, petitioner filed a motion to reconsider his petition for writ of habeas corpus in the district court. The state court resenteneed petitioner to twenty years imprisonment on September 5, 1978. On June 27, 1979, the district court granted petitioner a conditional writ of habeas corpus, but stayed the writ for a period of sixty days so that petitioner’s appeal to the Kentucky Supreme Court could be reinstated. The district court order stated that if petitioner’s appeal were not reinstated, petitioner’s conviction would be set aside. This Court affirmed that judgment and the United States Supreme Court denied Brown’s petition for writ of certiorari. Brown v. Smith, 633 F.2d 213 (6th Cir.1980), cert. denied, 451 U.S. 1002, 101 S.Ct. 2341, 68 L.Ed.2d 858 (1981).

The Kentucky Supreme Court ultimately affirmed Brown’s conviction on August 31, 1982, but remanded the case to the state trial court for resentencing following a presentence investigation. Resentencing never took place, however, because Brown, who was still free on appeal bond, became a fugitive from justice in Australia for more than ten years. In January 1993, the Commonwealth of Kentucky filed a motion for a bench warrant, which was executed by Brown’s arrest in May 1993 when he was extradited. On June 23, 1993, petitioner filed a motion pursuant to Kentucky Civil Rule 60.02(f) to vacate the seventeen-year old judgment against him based upon the allegedly improper admission of expert testimony at trial. In July 1993, a state trial court denied the motion. The Kentucky Court of Appeals affirmed the trial court’s denial of Brown’s Rule 60.02(f) motion in December 1994. The Supreme Court of Kentucky granted discretionary review and also affirmed the trial court’s decision.

On July 20, 1994, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Commonwealth moved to dismiss the petition for failure to exhaust all available state court proceedings on the issue of the admission of certain controversial testimony at trial. The Commonwealth noted that the appeal from the denial of petitioner’s Rule 60.02(f) motion regarding this testimony was pending in the Kentucky Court of Appeals and requested that the petition be dismissed without prejudice.

On September 22, 1994, a federal magistrate judge advised the district court in a Report and Recommendation that the Commonwealth’s request should be granted. The district court entered a judgment adopting the magistrate judge’s report on October 18, 1994, and this Court affirmed the district court’s denial of a certificate of probable cause to appeal on January 23, 1995. On November 21, 1996, all available state court proceedings were exhausted pertaining to the issue of the controversial testimony when the Supreme Court of Kentucky denied Brown’s petition for rehearing and its earlier opinion became final.

Petitioner’s current petition for writ of habeas corpus was filed on February 12, 1997. In response, the Commonwealth filed a Motion for Summary Judgment.

The district court adopted, as its decision, the Report and Recommendation of the magistrate judge in which he construed the instant petition as a second or successive petition, concluded that such a filing constituted an abuse of the writ, and recommended dismissal of the petition. Petitioner asserts two points of error with respect to the conclusions of the magistrate judge. First, petitioner contends that the district court erred in sua sponte dismissing the petition for abuse of the writ because the instant petition does not constitute a second or successive petition. Second, petitioner claims that the district court erred in determining that the statute of limitations in the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) (“AED-PA”) is applicable to the petition. We find that the district court erred in dismissing the petition on procedural grounds.

The district court construed the petition as a second or successive petition because petitioner’s initial application for writ of habeas corpus filed on July 20, 1994, was dismissed without prejudice for failure to exhaust the second issue on which petitioner sought habeas relief. In Carlson v. Pitcher, 137 F.3d 416 (6th Cir.1998) we addressed the proper characterization accorded a second petition filed subsequent to a dismissal without prejudice for failure to exhaust.

We join with every other court to consider the question, and hold that a habe-as petition filed after a previous petition has been dismissed on exhaustion grounds is not a “second or successive” petition implicating the pre-filing requirement of obtaining an order of authority from the court of appeals.

Carlson, 137 F.3d at 420.

Applying the holding of Carlson to the instant petition, we conclude that it is not a second or successive petition. The 1994 petition was dismissed without prejudice for failure to exhaust available state remedies. Petitioner subsequently exhausted his available state remedies on November 21, 1996 when the Supreme Court of Kentucky denied his petition for rehearing. Thus, the petition is not barred as a second or successive petition.

We further find that petitioner's application is not barred by the statute of limitations contained in the AEDPA. 28 U.S.C. § 2244 provides:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation shall run from the latest of-

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1). The district court, applying 28 U.S.C. § 2244(d)(1)(A), concluded that petitioner's time for direct review expired on March 21, 1983, the date on which the Supreme Court denied review of the Kentucky Supreme Court's opinion affirming petitioner's conviction. We disagree and hold that the applicable statute of limitations under the AEDPA is one year from the effective date of the AEDPA, to wit April 24, 1996.

Courts have employed several approaches in applying the statute of limitations provisions of the AEDPA. Some courts have accepted a literal reading of the statute and applied the one-year period of limitations to all cases filed after the date of enactment of the statute. See United States v. Smith, 966 F.Supp. 408, 409 (E.D.Va.1997) ("[TJhe Court must measure one year from the most recent date provided by subsections (1) through (4) of Section 2255"); Clarke v. United States, 955 F.Supp. 593, 595 (E.D.Va.1997). The Second Circuit has held that the Act requires petitions to be filed within a "reasonable" time following the statute's enactment, which, in some cases, may be less than one year. See Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir.1997) (holding that petition filed approximately one year after completion of state court direct review but within seventy-two days after the effective date of the AEDPA was filed within "reasonable time"). A third approach, embraced by the Third and Fifth Circuits, has emerged wherein the courts determined that a "one year" grace period from the effective date of the AEDPA is applicable. See United States v. Flores, 135 F.3d 1000, 1006 (5th Cir.1998); Burns v. Morton, 134 F.3d 109, 111-12 (3d Cir.1998); Calderon v. United States Dist. Ct., 128 F.3d 1283, 1287 (9th Cir.1997), cert. denied - U.S. -, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998); Duarte v. Hershberger, 947 F,Supp. 146, 148-49 (D.N.J.1996); Martin v. Jones, 969 F.Supp. 1058, 1061 (M.D.Tenn.1997).

In Ellis v. United States, we determined in the context of a § 2255 motion, "the reasonable time within which [petitioner] should be required to file his motion would be within one year of the enactment of the AEDPA." Ellis v. United States, No. 97-2077, 1998 WL 777995, *1 (6th Cir. Oct.21, 1998). In addition, we recently determined that a habeas petition filed on July 30, 1997, after petitioner's conviction became final on March 2, 1993, was time-barred. See Trice v. Toombs, No. 98-1099, 1998 WL 808366, *2 (6th Cir. Nov.9, 1998). Thus, we join with the Third and Fifth Circuits, and hold that a one-year grace period from the effective date of the AED-PA is applicable.

Applying the one-year rule, petitioner had one year from the effective date of the AEDPA, April 24, 1996, to file his § 2254 petition. Petitioner filed the instant petition on February 12, 1997. Thus, we conclude that petitioner’s application was timely filed within the provisions of the AEDPA. We, therefore, reverse the decision of the district court in so far as it dismissed the petition on procedural grounds.

Having concluded that the petition is not a second or successive petition, and that such petition was timely filed, we will turn to a consideration of the merits of the petition. The magistrate judge determined, if the petition were not barred on procedural grounds, petitioner would be entitled to relief on two of his habeas claims. In the Report and Recommendation, the magistrate judge concluded that the admission of Dr. Shaler’s testimony resulted in the denial of fundamental fairness to petitioner and the trial court’s denial of a continuance deprived him of a fair trial.

Under the provisions of the AED-PA, the district court must apply the following standard to the merits of petitioner’s claim:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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 facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Recently, we had occasion to settle on the following interpretation of this standard. In Nevers v. Killinger, 169 F.3d 352 (6th Cir.1999), we noted:

[Djeference to the state courts’ judgment required by the AEDPA is achieved by adopting the rule that the unreasonableness of a state court’s application of clearly established Supreme Court precedent will not be “debatable among reasonable jurists,” ..., if it is “so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes .... ”

Id. at 362 (internal citations omitted). Therefore, in the Sixth Circuit, “the writ will issue if the unreasonableness of the state court’s application of clearly established precedent is not debatable among reasonable jurists.” Tucker v. Prelesnik, 181 F.3d 747, 752 (6th Cir.1999). Under Nevers, supra, the application will not be debatable “if it is so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes.” Nevers, 169 F.3d at 362 (citation omitted).

Dr. Shaler’s Testimony

The testimony at trial revealed that petitioner’s brother, Mark Brown, believed that the victim, Bryant Dudley, had broken into Mark’s home and stolen drugs from him. Mark Brown and petitioner took the victim for a ride on May 17, 1976. The following day petitioner and his brother were seen with the victim. On May 19, 1976, the petitioner traded his boots to a friend. Those boots were stained with Type A blood, the blood type of petitioner and the victim. A short time later, the police found the victim’s body and determined that his death resulted from shotgun wounds.

The Commonwealth introduced evideuce during trial linking petitioner to the death of the victim.¹ The evidence included the expert testimony of Dr. Robert Shaler, which the Kentucky Supreme Court summarized as follows:

[T]he blood found on Appellant's [petitioner's] boots was found in only 4.6% of the population and could not have been the blood of Appellant [petitioner]. Dr. Shaler did not testify that the blood on the boots belonged to the victim and he did not rule out the possibility that the blood stain could have been the blood of a third person.

932 S.W.2d at 361. Following petitioner's conviction, counsel for petitioner obtained an affidavit from Dr. Shaler in which he conceded:

[A]dditional posttrial scientific research concerning the detection of genetic markers in dried blood indicates that the dried blood found on [petitioner's] boots indeed could have come from either [petitioner] or Dudley, and that he was mistaken when he testified that the blood could not possibly have come from [petitioner].

(Report and Recommendation at 25) (quoting Brown v. Commonwealth, No. 93-CA-1861-MR, p. 5 (Ct.App.1994)). The magistrate judge further notes:

[C]ounsel's affidavit reflects that Shaler admitted that the application of GM testing to dried blood was novel and not commonly accepted in 1976, that his testimony that the test was reliable was mistaken, and that he would not have testified had he known about the problems with the anti-sera and the technique at the time.

(Id. at 25-26). Petitioner contends that the trial court improperly admitted the Shaler evidence where the GM testing of dried blood did not enjoy general acceptance in the scientific community at the time of trial. (Id. at 23).

Habeas petitioners are not entitled to relief unless an error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). A petitioner will prevail where "a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law" substantially affected a jury's verdict. O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). However, we will grant federal habeas corpus relief only where a violation of a state's evidentiary rule results in the denial of fundamental fairness, and therefore, a violation of due process. Cooper v. Sowders, 837 F.2d 284, 287 (6th Cir.1988). "The standard in determining whether the admission of prejudicial evidence constitutes a denial of fundamental fairness is whether the evidence is `material in the sense of a crucial, critical highly significant factor.'" Leverett v. Spears, 877 F.2d 921, 925 (11th Cir.1989) (quoting Redman v. Dugger, 866 F.2d 387, 390 (11th Cir.1989)). Even assuming the state court erred in permitting Dr. Shaler's testimony, this court will grant federal habeas relief only where the error rises to the level of a denial of fundamental fairness. See Wright v. Dallman, 999 F.2d 174, 178 (6th Cir.1993).

When reviewing the Kentucky Supreme Court's decision, the magistrate judge acknowledged that the issue of whether the admission of Dr. Shaler's testimony resulted in unfairness to petitioner was "admittedly a close issue." (Report and Recoin-mendation at 30). At the time of the magistrate judge's decision, he did not have the benefit of the Sixth Circuit's interpretation of the AEDPA’s standard governing review of habeas claims. Applying this standard, we cannot conclude that the Kentucky Supreme Court’s decision that petitioner was not denied a fundamentally fair trial was “so arbitrary” as to be outside the range of “plausible outcomes.”

The Supreme Court of Kentucky twice confronted the issue of the admissibility of Dr. Shaler’s testimony. On direct review in 1982, the Kentucky Supreme Court found, “the only valid argument to be made against the Shaler evidence is addressable to its credibility rather than its admissibility.” 639 S.W.2d at 760.² In discussing the evidence, the court noted that the evidence, without Dr. Shaler’s testimony, “was sufficient to justify the conviction of Jim Brown....” Id. In its 1996 decision affirming the Kentucky Court of Appeals’ denial of petitioner’s 60.02(f) motion, the Kentucky Supreme Court rejected appellant’s contention that the admission of Dr. Shaler’s testimony warranted any relief.

A review of the evidence at Appellant’s trial fails to convince us that the outcome would have been different if all of Dr. Shaler’s testimony had been excluded or if it had been admitted and Shaler’s later misgivings had been available to the jury at the time of trial.

As the summary of the evidence shows, there was ample circumstantial evidence in the record upon which the jury could have based its verdict. Indeed, as noted above, this Court has earlier concluded that the evidence at trial, absent the testimony of Shaler, was sufficient to convict Appellant Brown.

Brown, 932 S.W.2d at 362.

In so concluding, the Kentucky Supreme Court noted: “Dr. Shaler was subjected to intrepid and effective cross-examination by defense counsel.” Id. During cross-examination, counsel for defense elicited from Dr. Shaler that “his particular blood analysis was novel,” “that it had been accepted as expert evidence in only one other homicide case in the United States (and that case involved Dr. Shaler himself as the expert witness),” “that he did not know whether the blood found on Appellant’s boots belonged to the victim,” “that the blood could have belonged to a third party,” and “he had conducted testing with respect to only three blood antigens, when there are as many as 23 separate blood antigens that can be analyzed.” Id. In light of these “admissions” on the part of Dr. Shaler, we cannot conclude that the admission of Dr. Shaler’s testimony was so fundamentally unfair as to amount to a denial of due process. While admittedly Dr. Shaler’s testimony was damaging to petitioner, we are not satisfied that it rises to the level of a “crucial, critical” factor in the jury’s decision to convict petitioner. See Leverett, supra.

The jury, having heard Dr. Shaler’s testimony and defense counsel’s subsequent cross-examination, was free to accord it the proper weight. Further, we cannot ignore that the jury ultimately viewed Dr. Shaler’s testimony in the context of the totality of the evidence adduced during the trial. Given these considerations, we do not conclude that the Kentucky Supreme Court’s decision that petitioner was not denied a fair trial was so “arbitrary” that it was outside the realm of “plausible outcomes.” Accordingly, we deny the petition on this issue.

Trial Court’s Denial of a Continuance

Petitioner next argues that the trial court’s denial of a continuance deprived him a fair trial. The Commonwealth called Dr. Shaler as its last witness on the second day of trial. Petitioner moved for a continuance so as to afford him the opportunity to examine Dr. Shaler’s report and ascertain the validity of Dr. Shaler’s conclusions. The trial court denied petitioner’s motion concluding that the Commonwealth and defense counsel were equally unfamiliar with Dr. Shaler’s testimony. The trial court’s decision forced defense counsel to conduct his cross-examination of Dr. Shaler only a few hours after receiving Dr. Shaler’s report.

With respect to the trial court’s decision to deny a continuance, we cannot say that petitioner is entitled to an issuance of the writ. “ ‘When a denial of a continuance forms a basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion but it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process.’ ” Bennett v. Scroggy, 793 F.2d 772, 774 (6th Cir.1986) (quoting Hicks v. Wainwright, 633 F.2d 1146, 1148 (5th Cir.1981)). Further, petitioner’s claim that the denial of a continuance violates his due process rights must be dismissed unless the state court’s determination of his claim was, “so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes.” See Nevers, supra.

The state court’s adjudication of such claim is found in its analysis of petitioner’s direct appeal in which it noted that it was “somewhat disturbed by the trial court’s refusal to grant a continuance.... ” Brown, 639 S.W.2d at 761. However, the Kentucky Supreme Court noted that defense counsel spoke with Dr. Shaler on Saturday before the trial commenced on Monday and at that time Dr. Shaler “indicated a hesitancy to testify, stating that his tests were inconclusive.” Id. Although defense counsel was aware that Dr. Shaler might testify, counsel made no motion for a continuance until Dr. Shaler was called by the Commonwealth as its last witness. The court further noted that “when presented with the opportunity during cross-examination, defense counsel failed to question Shaler about the doubts expressed in the Saturday conversation.” Id.

We conclude that the state court’s decision on this claim was not “so arbitrary” as to be implausible, and we further conclude that the failure to grant the continuance was not so prejudicial to petitioner’s case as to warrant habeas relief. Defense counsel consulted with Dr. Shaler during the weekend preceding the trial and learned of Dr. Shaler’s hesitancy over the results of his tests. The fact that defense counsel failed to bring this fact to the jury’s attention does not merit the conclusion that the trial court’s decision to deny a continuance was in error. Accordingly, we conclude that petitioner is not entitled to habeas relief on the basis of the trial court’s decision to deny a continuance.

Conclusion

For all of the foregoing reasons, we REVERSE the decision of the district court insofar as it concluded that the petition was procedurally barred. ’ However, for the reasons stated herein, we AFFIRM the decision of the district court dismissing the petition for writ of habeas corpus.

1 . A detailed description of the evidence in this case is set forth in the two decisions from the Kentucky Supreme Court-Brown v. Commonwealth, 639 S.W.2d 758 (1982) and Brown v. Commonwealth, 932 S.W.2d 359 (1996).

2 . In considering the admissibility of Dr. Shaler's testimony, the Kentucky Supreme Court in its 1982 decision stated:

It [Dr. Shaler's testimony] is not to be likened to the lie-detector test, the result of which depend heavily on the skill of the operator, and in which factors other than truthfulness are known to affect the result. Dr. Shaler's testimony was admissible on the same basis as any other expert opinion.

Brown, 639 S.W.2d at 760.