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Wheeler v. Simpson

United States Court of Appeals, Sixth Circuit

March 23, 2017

Roger L. Wheeler, Petitioner-Appellant,
v.
Thomas L. Simpson, Warden, Respondent-Appellee.

          Argued: October 1, 2014

         On Remand from the United States Supreme Court. No. 3:09-cv-00336-Joseph H. McKinley Jr., Chief District Judge.

         ARGUED:

          Joseph T. Flood, SHELDON, FLOOD & HAYWOOD, PLC, Fairfax, Virginia, for Appellant.

          David W. Barr, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

         ON BRIEF:

          Joseph T. Flood, SHELDON, FLOOD & HAYWOOD, PLC, Fairfax, Virginia, David M. Barron, KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant.

          David W. Barr, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

          Before: MERRITT, GRIFFIN, and WHITE, Circuit Judges.

          OPINION

          GRIFFIN, Circuit Judge.

          This habeas case returns to us on remand from the Supreme Court. Previously, this court granted habeas relief to petitioner Roger Wheeler based on the state trial court's decision to remove a juror who could not give sufficient assurance of neutrality or impartiality in considering whether to impose the death penalty. See Wheeler v. Simpson, 779 F.3d 366, 374-75 (6th Cir.), rev'd sub nom. White v. Wheeler, 136 S.Ct. 456 (2015) (per curiam). Our majority opinion also addressed and rejected petitioner's other claims relating to the guilt phase of the state trial proceedings, but left unresolved other claims relating to the penalty phase. See id. at 375. Both Wheeler and respondent Thomas Simpson ("Warden") filed petitions for certiorari. The Supreme Court denied Wheeler's petition, Wheeler v. White, 136 S.Ct. 688 (2015), but granted the Warden's, reversing our decision to issue the writ and remanding for further proceedings, White, 136 S.Ct. at 462. We now address petitioner's remaining claims certified for appeal. After doing so, we affirm the judgment of the district court.

         I.

         In 2001, a jury convicted petitioner of two counts of intentional murder. Petitioner's victims were Nigel Malone and his girlfriend, Nairobi Warfield. The jury recommended a death sentence after finding one aggravating circumstance: that petitioner's "act . . . of killing [was] intentional and resulted in multiple deaths[.]" Ky. Rev. Stat. § 532.025(2)(a)(6). The trial court followed the jury's recommendation and imposed a death sentence for each conviction. On direct appeal, the Kentucky Supreme Court made the following findings of fact:

On October 2, 1997, Louisville police discovered the bodies of [Malone and Warfield] in the apartment the victims shared. The male victim was found in a hallway near the bathroom. He had suffered nine stab wounds. Two stab wounds to the chest were considered the fatal wounds by the medical examiner. She described the crime scene as having blood spatters on the floor, walls, furniture and appliances. The medical examiner believed that the main struggle occurred in the kitchen and progressed to the hallway where the body of the male victim was found.
The female victim died as a result of manual strangulation. The medical examiner testified that she believed the struggle between the female and her assailant occurred in the bedroom where she was found. The female victim had multiple abrasions on the left side of her neck and lacerations with a bruise on her mouth and several bruises on her lips. Her body was found in a seated position, leaning against a bedroom wall. She was covered with a blanket or quilt and a [pair of] scissors was protruding from her neck. The medical testimony determined that she had been stabbed with the scissors after she was already dead. During the autopsy, the medical examiner discovered that the female victim was pregnant.
There was blood on the floors and walls in nearly every room in the apartment. Numerous blood samples were also collected at the scene and were subject to laboratory testing. No fingerprints were found on the scissors.
Wheeler denied killing the two victims but he changed his story on several occasions. Originally, he denied ever being inside of the apartment on the night the murders occurred but then later admitted being in the apartment on that night. He claimed that Nigel Malone was already stabbed, but that he did not see Nairobi Warfield. He also asserts that the assailant was already inside the apartment and he and that person fought which was why he was wounded.

Wheeler v. Commonwealth, 121 S.W.3d 173, 178 (Ky. 2003). The court affirmed petitioner's convictions and sentences. Id. at 189. Following his direct appeal, petitioner sought post-conviction relief in the state courts, which was denied. See Wheeler v. Commonwealth, No. 2006-SC-000901-MR, 2008 WL 5051579, at *11 (Ky. Nov. 26, 2008) (unpublished).

         Wheeler filed the instant petition for a writ of habeas corpus in 2009. A magistrate judge recommended granting the Warden's motion for summary judgment and denying the habeas corpus petition. The district court agreed with the magistrate judge and denied the petition. The district court granted a COA as to ten claims, and we later expanded the COA to include two additional claims.

         Having previously decided petitioner's guilt-phase claims, and the Supreme Court having denied his certiorari petition, our decision regarding those claims is law-of-the-case. See, e.g., Bowles v. Russell, 432 F.3d 668, 676 (6th Cir. 2005), aff'd, 551 U.S. 205 (2007) ("[O]nce an appellate court either expressly or by necessary implication decides an issue, the decision will be binding upon all subsequent proceedings in the same case.") (citation omitted). It also goes without saying that we cannot revisit petitioner's juror-bias claim, the Supreme Court having reversed our holding as to that claim. We turn then to petitioner's remaining penalty-phase claims.

         II.

         The Antiterrorism and Effective Death Penalty Act of 1996 limits federal habeas review of state court proceedings and provides that an application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless 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 ...

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