NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0870n.06
No. 09-4543 FILED
Dec 21, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
GAREY SMITH, )
)
Petitioner-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) SOUTHERN DISTRICT OF OHIO
JOHN COLEMAN, Warden, )
)
Respondent-Appellee. )
Before: DAUGHTREY, CLAY, and STRANCH, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. Petitioner Garey Smith, an Ohio
prisoner proceeding pro se, appeals the district court’s judgment denying his request for
relief under the federal habeas statute, 28 U.S.C. § 2254. In the district court, Smith raised
various claims, but the only issue certified by the district court for our review concerns
Smith’s contention that he was denied due process based on prosecutorial misconduct –
specifically, improper comments made during the rebuttal portion of the state’s closing
argument. The district court adopted the report and recommendation of the magistrate
judge, who reviewed the petitioner’s claims de novo, an exercise we find unnecessary,
given that the Ohio Court of Appeals had already reviewed the issue on direct appeal and
No. 09-4543
Smith v. Coleman
resolved it appropriately. We nevertheless affirm the denial of relief, concluding that the
result reached by the district court was correct.
The charges against Smith were based on a 2001 shooting incident that resulted
in the death of one victim, Jimmy Gordon, and serious injury to three others. Smith never
denied that he shot the four men, but he claimed that he acted in self-defense after the
victims had advanced on him in a threatening manner. As it turned out, however, Smith
was the only one armed, and all the shots fired came from his weapon. Because the three
wounded victims were available to testify, along with several bystanders and police officers
who arrived on the scene, it became necessary to destroy the credibility of virtually all the
state’s witnesses at trial in order to maintain Smith’s theory of self-defense. The
prosecutor’s response to that trial strategy produced the legal dispute now before us. It
arose during the second trial in a convoluted path of litigation that resulted in three trials
in state court, two direct appeals, a state postconviction hearing and appeal, two federal
habeas proceedings, and at least three appeals filed in this court, one other of which is still
pending, bearing case number 10-3280.1
1
In 2002, a jury found Smith guilty of a single count of murder, two counts of
attempted murder, six counts of felonious assault with firearm specifications, and
possession of a weapon while under a disability. The Ohio Court of Appeals reversed the
convictions and remanded the case for a new trial because Smith was denied the right to
represent himself. State v. Smith, No. C-020610, WL 102285 (Ohio Ct. App. Jan. 23,
2004). At a second trial, the jury found Smith guilty of six counts of felonious assault and
possession of a weapon under a disability; but the jury could not reach a verdict on the
murder charge. The Ohio Court of Appeals reversed two of the assault convictions and
remanded for re-sentencing. State v. Smith, 168 Ohio App.3d 141, 858 N.E. 2d 1222
(2006). It is the second trial and conviction that is the subject of the current habeas
-2-
No. 09-4543
Smith v. Coleman
The habeas petition now before us, charging prosecutorial misconduct occurring in
Smith’s second state trial, is governed by provisions of the Antiterrorism and Effective
Death Penalty Act of 1996, P.L. 104-132, 110 Stat. 1214 (1996) (AEDPA), which directs
the federal courts to review constitutional claims decided by the state courts on the merits
under the following standards:
An application for writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of the 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.
* * * * *
In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination
of a factual issue made by a State court shall be presumed to be correct.
The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.
28 U.S.C. §§ 2254(d)(1), (d)(2), and (e)(1).
litigation.
The question in No. 10-3280 is unrelated to the claim raised here. It involves the
Double Jeopardy Clause, which Smith invoked both before, during, and after his second
trial, claiming that his retrial after reversal of his initial conviction by the Ohio Court of
Appeals violated the constitutional protection against twice being placed in jeopardy.
At a third trial, Smith was acquitted of murder.
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No. 09-4543
Smith v. Coleman
In this case, the district court adopted the magistrate judge’s report and
recommendation, including the magistrate’s determination that the merits of Smith’s claim
should be reviewed de novo because the state court had analyzed the constitutional issues
under state rather than under federal law. However, our study of the state court record
indicates that the Ohio Court of Appeals, the last court to review the matter, did, in fact, rely
at least in part on United States Supreme Court precedent, specifically applying the
reasoning of Smith v. Phillips, 455 U.S. 209, 219 (1982), for the proposition that
“[prosecutorial] misconduct review focuses on