Mackey v. Russell

148 F. App'x 355
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 9, 2005
Docket02-4237
StatusUnpublished
Cited by22 cases

This text of 148 F. App'x 355 (Mackey v. Russell) 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
Mackey v. Russell, 148 F. App'x 355 (6th Cir. 2005).

Opinions

OPINION

R. GUY COLE, Jr., Circuit Judge.

Petitioner-Appellant Maurice Mackey was convicted of murder and attempted murder. He now appeals the district court’s denial of habeas corpus relief. Mackey alleges that he was denied his Sixth Amendment right to effective assistance of counsel, and that he was denied due process by the government’s use, for impeachment purposes, of both Mackey’s prior misconduct and his invocation of his Miranda right to remain silent following his arrest. Because we find that the state appeals court failed to consider the cumulative effect of Mackey’s attorney’s errors, and because Mackey’s attorney’s errors likely prejudiced the jury’s verdict given the paucity of evidence as to who drew his gun first, we VACATE the judgment of the district court and REMAND with instructions to issue a conditional writ of habeas corpus, giving the State of Ohio 180 days within which to retry Mackey or release him from state custody.

I.

On the night of April 14, 1999, Maurice Mackey and his girlfriend Stephanie Whit-more were at a bar known as the Office Lounge in Cleveland. Also there were off-duty out-of-uniform Cleveland Police Officer David Smith and his friend Edward Wright, an off-duty mall security guard. Officer Smith’s girlfriend, Bridget Jackson, worked as a dancer at the lounge. When Whitmore walked over to Smith, Wright, and Jackson to ask Jackson if she would perform a “lap dance” for Mackey, Smith made a remark which Whitmore interpreted as hostile. When Whitmore returned to the table she and defendant Mackey were sharing, Mackey asked her what Smith had said, and she said she had not heard. Smith and Mackey then exchanged several hostile stares, but never spoke to each other. After fifteen to thirty minutes of hostile glances, Mackey and Whitmore decided to leave to avoid trouble. Smith and Wright decided to leave at the same time.

In the parking lot, Mackey and Whit-more heard the door to the lounge open behind them. Wright testified that Mackey turned around and asked if Smith and Wright had a problem with him. Mackey testified that Smith asked if Mackey had something to say to him. Either way, it is undisputed that both men then drew handguns. It is also undisputed that Mackey shot Smith, killing him instantly, and then shot Wright, injuring him, as he turned to [359]*359flee. Mackey testified at trial that he had seen Smith begin to draw his gun, and that in response, Mackey drew his weapon in self-defense. Neither Whitmore nor Wright were in a position to see which man drew first, and there were no other witnesses to the shooting.

Neither man had any reason to know the other was carrying a firearm; Mackey was carrying his gun illegally, Smith was not in uniform, and the men had never met each other before. The coroner testified that forensic evidence showed Smith had indeed drawn his gun at the time he was shot; the gun was found gripped in his hand away from the holster, with a bullet in the chamber. In addition, there was laboratory evidence that Smith was legally intoxicated at the time of the shooting. No other direct physical or testimonial evidence was introduced that would tend to show who drew first.

Immediately after the shooting, Mackey fled with Whitmore to their house in Solon, Ohio. From there, Whitmore called a friend who worked at the lounge. When she found out that one of the victims was not expected to live, she told the friend not to mention the call. The friend informed the police, who came to the Solon house and knocked on the door. Mackey and Whitmore did not answer, but later that morning, on the advice of their attorney, they surrendered to the police.

Mackey was convicted of murder in the Cuyahoga County Court of Common Pleas, and properly exhausted all required state court review of the claims now before us. The parties agree that the only disputed issue at trial was who drew first, Mackey or Smith. Mackey alleges three errors at trial that strongly prejudiced the jury against him on this question. First, he argues that the prosecutor’s portrayal of Mackey as a violent person through prior bad acts constitutes reversible error. Next, he claims that his due process rights were violated when the court repeatedly allowed the prosecutor to mention Mackey’s post-arrest silence. Finally, he claims that his appointed counsel, John Luskin, was constitutionally ineffective, because he (a) called Whitmore as a witness when she had nothing to add to his case; (b) failed to request a hmiting instruction to limit the use of facts regarding Mackey’s prior bad acts that were used to impeach Whit-more; (c) failed to object to the use of Whitmore’s prior bad acts, which, Mackey argues, worked to prove guilt by association; (d) failed to object to the introduction of evidence that Mackey maintained an “arsenal” of guns at his house; (e) failed to object to prosecutorial statements that could imply that Mackey was guilty solely because he was carrying a gun illegally; and (f) failed to object to the prosecutor’s repeated reference to Mackey’s post-arrest silence as evidence of his guilt.

II.

We review the decision of a district court to grant or deny a writ of habeas corpus de novo, but review factual findings by that court for clear error, except where the district court has made factual determinations based on its review of trial transcripts and other court records; in such cases we review such findings de novo. Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir.2000). However, both we and the district court may grant a writ of habeas corpus vacating a state court conviction only if we conclude that the state courts’ decisions are “contrary to, or involved an unreasonable application of, clearly established law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(b).

A. Prior Bad Acts Evidence

Mackey first claims that the prosecutor’s portrayal of Mackey as a violent person, [360]*360through Whitmore’s testimony as to Mackey’s prior bad acts, was reversible error. At trial, on cross-examination, the prosecutor asked Whitmore if Mackey was a jealous or violent type of person. When she answered in the negative, the prosecution then proceeded to ask her about several previous times when Mackey had been violent, including once towards Whitmore and another time towards a man who had been harassing her. After extensive voir dire, the trial court decided to allow the introduction of these prior acts for the purpose of impeaching Whitmore. Mackey claims that the trial court erred in allowing this testimony, basing this claim on the Ohio Rules of Evidence, as well as on fundamental due process concerns under the Fifth Amendment of the U.S. Constitution.

Mackey argues that the admission of the prior bad act evidence violated the Ohio Rules of Evidence in two ways: First, he claims, its admission violated the rule against collateral impeachment. Ohio R. Evid. 404(A)(3), 608(B). In addition, Mackey argues that Whitmore’s testimony was not proper as evidence of Mackey’s “motive or intent,” and was thus not relevant to his case. See Ohio R. Evid. 404(B). However, since we are “highly circumscribed in [our] ability to second-guess state ... court rulings on state law in order to grant habeas relief,” Baze v. Parker,

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148 F. App'x 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mackey-v-russell-ca6-2005.