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Wade v. Timmerman-Cooper

United States Court of Appeals, Sixth Circuit

May 8, 2015

DAVID E. WADE, Petitioner-Appellant,
v.
DEBORAH TIMMERMAN-COOPER, Respondent-Appellee

Argued October 9, 2014

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:09-cv-00632--Algenon L. Marbley, District Judge.

ARGUED:

Eric T. Werlinger, WINSTON & STRAWN LLP, Washington, D.C., for Appellant.

William H. Lamb, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Cincinnati, Ohio, for Appellee.

ON BRIEF:

Eric T. Werlinger, WINSTON & STRAWN LLP, Washington, D.C., for Appellant.

William H. Lamb, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Cincinnati, Ohio, for Appellee.

Before: BOGGS, SUTTON, and STRANCH, Circuit Judges.

OPINION

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BOGGS, Circuit Judge.

Petitioner-Appellant David E. Wade, a state prisoner in Ohio, appeals from the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Wade was tried in Ohio state court for several offenses, including rape, kidnapping, aggravated robbery, and certain firearm specifications, stemming from his attack on a woman in her apartment. The jury in Wade's first trial convicted him of, inter alia, rape and kidnapping, which each included " force" as an essential element, but acquitted him of aggravated robbery and all firearm specifications. Wade's convictions were subsequently overturned for reasons not relevant here, and Wade was retried for rape and kidnapping. Over the objections of defense counsel, the State reintroduced testimony suggesting that Wade possessed a firearm during the attack, and the trial court denied Wade's request for a limiting instruction regarding that evidence. Wade was again convicted of the rape and kidnapping offenses.

On direct appeal, Wade raised as error the readmission of the firearm evidence and the trial court's failure to provide a limiting instruction. The Ohio Court of Appeals agreed with Wade that the jury in his first trial determined that he did not possess a firearm.[1] The court also concluded that while the doctrine of collateral estoppel did not bar the readmission of the firearm evidence, the principles underlying that doctrine required a limiting instruction informing the jury that it could not consider that evidence in finding the element of force. After noting a significant danger that the jury in Wade's second trial did in fact consider the firearm evidence in finding force, the Court of Appeals overturned all of Wade's convictions.

The State filed an application for reconsideration, stressing that Wade's trial counsel requested a limiting instruction regarding the firearm evidence only as to the rape count and not as to the kidnapping count, and that the failure to provide the instruction on the rape count did not necessarily implicate Wade's other convictions. Upon reconsideration, the Ohio Court of Appeals held that because Wade only requested a limiting instruction regarding the element of force for rape, Wade forfeited review of the failure to provide such an instruction for kidnapping except for plain error. Under Ohio's plain-error standard, the state court determined that it could not say that the outcome of Wade's kidnapping conviction clearly would have been different had there been a limiting instruction, and therefore reinstated Wade's conviction on that count.

In this federal habeas proceeding, Wade makes two central contentions. First, Wade argues that principles of collateral estoppel embodied in the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution barred state prosecutors in the second trial from reintroducing the firearm evidence that did not convince the jury in Wade's first trial. Second, Wade argues that even if the firearm evidence were otherwise admissible, the absence of a limiting instruction on the kidnapping count resulted in a fundamentally unfair trial in violation of due process.

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Wade admits that this due-process claim was not raised before the Ohio courts, but contends that this procedural default is excused by ineffective assistance of trial and appellate counsel. The district court denied Wade's petition after determining that evidence regarding Wade's use of a firearm was constitutionally admissible in the second trial and that Wade failed to demonstrate ineffective assistance of counsel to excuse the procedural default of his due-process claim.

Under the framework established by the Supreme Court in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), we hold that the firearm evidence was not an issue of ultimate fact in Wade's second trial such that principles of collateral estoppel required its exclusion. In addition, we hold that the lack of a limiting instruction regarding that evidence did not " so infec[t] the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). We therefore affirm the district court's denial of Wade's petition.

I

A. Wade's Criminal Conduct and Indictment

On August 20, 2002, Wade knocked on the door of the apartment belonging to " C.B." and asked to borrow her phone. After C.B. lent Wade the phone and he finished using it, C.B. opened the door slightly to get the phone back. Wade, who was much taller and heavier than C.B., then pushed his way into the apartment, allegedly pulled a gun, told C.B. to take off her clothes and lie on the living room floor, lay on top of her, and raped her. Following the attack, Wade stole C.B.'s purse, laptop, phone, and car keys, and drove away in C.B.'s car. The entire incident lasted between 20 and 30 minutes.

Soon after, C.B. went to a hospital where a physical examination corroborated that she was assaulted. She also later identified Wade as the man who attacked her. Two weeks later, Wade was arrested after fleeing from the police in C.B.'s car. He was in possession of a bag of cocaine at the time of arrest, but no gun was found.

A Franklin County Grand Jury indicted Wade on one count each of rape, aggravated burglary, kidnapping, and aggravated robbery, and two counts of theft. Each of these counts also included a firearm specification. Wade was also charged with one count of receiving stolen property, failure to comply with a police officer, and possession of cocaine. The rape and kidnapping charges are most relevant for purposes of this appeal.

An individual is guilty of rape under Ohio law if he " engage[s] in sexual conduct with another when [he] purposely compels the other person to submit by force or threat of force." Ohio Rev. Code § 2907.02(A)(2). Additionally, an individual is guilty of kidnapping if he " restrain[s] the liberty of" another person " by force, threat, or deception" to, inter alia, " facilitate the commission of any felony" or " engage in sexual activity." Id. § 2905.01(A). " Force," which is an element of both rape and kidnapping as charged in this case, is defined as " any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." Id. § 2901.01(A)(1). Moreover, under Ohio's firearm-specification statute, an individual charged with an offense is subject to an additional, mandatory prison term if he " had a firearm on or about [his] person or under [his] control while committing the offense and displayed the firearm, brandished the firearm, indicated that [he] possessed

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the firearm, or used it to facilitate the offense." Id. § 2941.145(A).

B. Wade's First Trial and Appeal

In his initial trial, Wade admitted that he stole items from C.B.'s apartment and fled from police in her car, but denied both that he had a gun and that he raped C.B. Instead, he asserted that they had consensual sex. The prosecution introduced evidence that Wade possessed a gun during the attack, including C.B.'s testimony that Wade " pulled a silver gun out" and held it in his hand while he forced her to remove her clothes and raped her, and that C.B. " didn't want to be killed" and would not have complied with Wade's demands if he did not have the gun. The jury convicted Wade of rape and kidnapping, which, as the offenses were charged, each included " force" as an essential element, but acquitted him of all firearm specifications. Wade was also acquitted of aggravated robbery, which is defined as " [having] a deadly weapon on or about the offender's person or under the offender's control and either display[ing] the weapon, brandish[ing] it, indicat[ing] that the offender possesses it, or us[ing] it," or " [inflicting], or attempt[ing] to inflict, serious physical harm on another," while " attempting or committing a theft offense." Ohio Rev. Code § 2911.01.

Wade appealed his convictions to the Ohio Court of Appeals, arguing, among other things, that there was insufficient evidence to support his convictions and that he was deprived of his right to counsel due to his lawyer's absence during the preparation and submission of responses to jury questions during deliberations. See State v. Wade [ Wade I ], 2004-Ohio-3974, 2004 WL 1688434 (2004). The Court of Appeals rejected Wade's claim of insufficient evidence, but found that the procedure for responding to the jury's questions was " deficient." 2004-Ohio-3974, Id. at *7-8. Wade's convictions were vacated and the case was remanded for a new trial.

C. Wade's Second Trial and Appeal, and the State's Application to Reconsider

The State retried Wade for rape and kidnapping (as well as other charges not including aggravated robbery or the firearm specifications), again offering C.B.'s testimony that Wade pushed his way into her apartment, pulled out a gun, made her remove her clothes, and raped her. Wade's new counsel filed a motion in limine with the trial court seeking to exclude testimony regarding the firearm, arguing that introducing such evidence would be contrary to the jury verdict in Wade's first trial. Specifically, Wade's counsel argued that because Wade was acquitted of aggravated robbery and all firearm specifications, the jury in his first trial concluded that he did not have a gun. Thus, counsel argued, collateral estoppel prevented the State from introducing testimony suggesting that Wade " did posses[s] a firearm when it has been determined by a jury that he did not." The trial judge agreed that the first jury found that the prosecution did not prove that Wade had a firearm; however, because use or possession of a firearm was " not an element of rape [or] kidnapping," he ruled that the State was not barred from introducing testimony regarding the presence of a firearm on those counts. The judge later denied a motion for reconsideration and a motion for acquittal that raised the same issue.

At the close of the prosecution's case, Wade's counsel requested a limiting instruction stating that the jury " can't find [Wade] guilty of possessing a deadly weapon for the force that's used in the rape." In making his request, Wade's counsel cited C.B.'s testimony about how Wade used

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a gun to make her comply. Counsel did not, however, request a limiting instruction for the kidnapping charge, nor did he specifically raise a due-process challenge regarding the limiting instruction. The judge denied the request based on his prior rulings, and the jury later convicted Wade of all counts.

With the assistance of new counsel in his second appeal, Wade raised eight points of error, including claims regarding the admission of the firearm evidence and the failure to provide a limiting instruction. However, Wade's appellate counsel did not raise " trial counsel's failure to preserve [a] due-process claim on the kidnapping jury instruction. Nor did he raise a claim of ineffective assistance predicated on trial counsel's failure to preserve the error." Appellant Br. 11. The Ohio Court of Appeals recognized that the doctrine of collateral estoppel, which is incorporated into the Double Jeopardy Clause, " prohibits the government from relitigating an issue of ultimate fact that was determined by a valid and final judgment." State v. Wade [ Wade II ], 2008-Ohio-543, 2008 WL 366143, at *4 (2008). And it agreed with Wade that " the first jury actually decided that [he] did not possess a gun during the offenses and it is not conceivable that a rational jury could have grounded its verdict on any other issue." 2008-Ohio-543, Id. at *5. However, because the State did not need to prove that Wade had a gun in order to convict on the rape and kidnapping charges, the first jury's conclusion that Wade did not possess a firearm was not an issue of ultimate fact in the second trial. 2008-Ohio-543, Id. at *5-6. In its ruling, the Court of Appeals noted that the firearm testimony " could be used to prove the force element of both rape and kidnapping," but recognized that " [t]here are other ways to establish the element of force for these offenses," including the size disparity between Wade and his victim and Wade's use of force in entering the apartment. 2008-Ohio-543, Id. at *6. Indeed, the court recognized that " although the first jury determined that appellant did not have a gun, it nevertheless found appellant guilty of rape and kidnapping, thereby finding the element of force beyond a reasonable doubt even without a gun." Ibid.

Although it rejected Wade's argument that collateral estoppel barred admission of the firearm evidence, the Ohio Court of Appeals did initially conclude that " the principle underlying that doctrine requires a limiting instruction such as the one [Wade] requested" --i.e., that the jury not consider the firearm testimony in determining whether he used force in committing rape. 2008-Ohio-543, Id. at *6-7. " Absent a limiting instruction," the court reasoned, " there was a significant danger that the jury in the second trial would find the element of force for rape based upon evidence that the appellant had a gun, even though the jury in the first trial necessarily found that appellant did not possess a gun during the offenses." 2008-Ohio-543, Id. at *7. The Court of Appeals held that the trial court's abuse of discretion in refusing the instruction was not harmless because although the court " previously referred to evidence other than the gun testimony that could support a finding of force in this case, that evidence was minimal," 2008-Ohio-543, id. at *7 n.7, and the trial court's error ...


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