Bowling v. House
MEMORANDUM OPINION & ORDER: Petitioners objections are OVERRULED and Judge Smiths report and recommended disposition R. 20 is ADOPTED. Petitioners writ of habeas corpus is construed as a petition brought under 28 U.S.C. § 2241 and is DENIED. A Certificate of Appealability is DENIED and this action shall be STRICKEN from the active docket of the clerk. Signed by Judge Amul R. Thapar on 9/13/2011.(RC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
OSCAR GAYLE HOUSE,
Civil Action No. 10-174-ART
MEMORANDUM OPINION &
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On June 25, 2010, Brock Bowling filed a petition for the writ of habeas
corpus, claiming that the Commonwealth of Kentucky convicted him on insufficient
evidence and that retrial would violate his rights under the Double Jeopardy Clause of
the Fifth Amendment. Magistrate Judge Candace J. Smith considered the matter and
issued a thorough Report and Recommendation (“R&R”) advising that the Court deny
Bowling’s petition, to which Bowling objected. Judge Smith is right. The petition
should be denied.
In her R&R, Judge Smith describes the facts of the case in detail. See R. 20 at
2-4. The following background is drawn from her summary:
Drug dealer Jimmy Mills was no stranger to violence. Before his own death,
Mills shot and wounded David Hoskins in Clay County, Kentucky, then fled to
Mexico for two weeks with his girlfriend, Angela Fox. Upon his return to the United
States, police arrested Mills at the Atlanta airport and took him back to Kentucky,
where he was charged. Mills posted bond to secure his release, at which point he
returned to his home in Clay County and spent the night with his wife Donna.
The next day, according to Donna, Jimmy planned to meet his attorney in
London at 2:00 p.m. and then drive to Cincinnati, where airport authorities were
holding the luggage from his Mexico trip. He told Donna that he wanted Brock
Bowling to go with him on the trip. Before Jimmy left, Donna recalled that he said he
was heading to Brock’s house, and added “I think they’ve robbed me.” Donna also
remembered Jimmy left at 7:45 a.m. wearing sweatpants, which she took as a sign he
intended to return home before meeting his attorney in London.
Jimmy did not return home.
The next day, Donna Mills’s cousin found
Jimmy’s body at the bottom of a ravine in Big Double Creek Park. Jimmy had been
shot three times and his body was wrapped in a tablecloth and covered with a garbage
bag. When the police arrived, they also found an area rug nearby. The officers
concluded that the body had been wrapped in the rug, which came loose as it rolled
down the ravine. The police had few leads to go on; DNA evidence from the scene
matched only Donna Mills and Jimmy himself. But one witness testified that the area
rug looked “similar” to one owned by Dennis Bowling, Brock’s brother.
Five days later, Dennis Bowling’s trailer caught fire at four o’clock in the
morning. Brock Bowling was present at the trailer, fully dressed, but because the
trailer was not insured, the fire department did not conduct an arson investigation.
A month later, two horseback riders discovered Jimmy Mills’s vehicle at the
top of an abandoned ATV trail near the Clay County-Ulysses County line. Neither
fingerprints nor trace samples of hair and fabric matched any of the police’s suspects,
but one witness, Ronald Collins, said he had seen Brock Bowling walking near the
Clay County-Ulysses County line on the morning that Jimmy Mills’s body was found.
The investigation then stalled for six months, until police interrogated
Christine Gibson. At trial, she testified that she and her husband saw Brock Bowling,
Shannon Finley, and Timothy Finley in a pick-up truck at the Double Creek Park
entrance at 3:00 a.m. on the day Mills’s body was found. The Gibsons followed the
truck into the park so Christine could use the restroom. As she exited her vehicle,
Christine said she got a closer look at the pick-up truck and saw there was an area rug
rolled up in the back of the truck, with something inside the rug. J.C. Gibson
corroborated her testimony and added that Brock Bowling and Timothy Finley asked
him the next day whether “the law” had been in the park that morning. The Gibsons
disagreed, however, on who had been driving their vehicle that night—Christine said
it was J.C., while J.C. said it was Christine—and both admitted to using cocaine and
other prescription drugs earlier that day.
Two months later, a Clay County grand jury indicted eight individuals for their
involvement with Mills’s death: Brock Bowling, Dennis Bowling, Timothy Finley,
Shannon Finley, Angela Fox, Shane Wagers, Joseph Collins, and J.C. Gibson.
Collins and Wagers pled guilty to conspiracy to commit arson and tampering with
evidence, while prosecutors dismissed the charges against Gibson and Fox in
exchange for their testimony.
The remaining defendants, Brock Bowling, Dennis Bowling, Timothy Finley,
and Shannon Finley, were tried jointly. At the close of evidence, Dennis Bowling
moved for a directed verdict of acquittal, which the court granted. As for Brock
Bowling and the Finleys, the prosecutor requested and the judge delivered two sets of
instructions to the jury. The first set informed the jury that it could convict Bowling
on either a principal or accomplice theory of liability (the “individual” instructions),
and the second set stated that it could convict him of a combination of the two
theories without specifying one (the “combination” instructions). The jury found
Bowling guilty on the combination instructions, but was silent on the individual
instructions. In January 2006, Bowling was sentenced to twenty years in prison for
murder and one year for evidence tampering, to be served concurrently.
Bowling and his codefendants appealed their convictions to the Kentucky
Supreme Court, arguing, among other things, that there was insufficient evidence to
support their convictions and that the trial court gave the jury erroneous instructions.
That court found the evidence was sufficient to support the conviction of Bowling
under the principal theory, but not sufficient to support the convictions of Bowling’s
codefendants. Bowling could not be an accomplice to a murder without a principal,
so there was also insufficient evidence for the accomplice theory. As a result, the
Kentucky Supreme Court concluded that the trial court erred in giving the combined
instructions to the jury, because these instructions required sufficient evidence of guilt
under both the principal and accomplice theories. The court then reversed Bowling’s
conviction and remanded it for a new trial on the principal theory of liability.
On remand, Bowling moved to dismiss the new indictment, arguing that the
Double Jeopardy Clause prohibited his retrial on the murder charge. The trial court
denied the motion, and, before his retrial, Bowling filed a writ of prohibition with the
Kentucky Court of Appeals on the same grounds. That court denied the writ, and the
Kentucky Supreme Court affirmed the denial in September 2009. As Magistrate
Judge Smith noted in her R&R, R. 20 at 5 n.4, this denial exhausted Bowling’s state
court remedies and opened the door for his federal habeas claim.
Bowling filed his claim under 28 U.S.C. § 2254, but this statute applies only to
individuals “in custody pursuant to the judgment of a State court.” A petitioner, who,
like Bowling, is free on bond pending a new trial is “in custody,” see Justices of
Boston Mun. Court v. Lydon, 466 U.S. 294, 300-01 (1984), but not pursuant to a state
court judgment. Bowling therefore cannot bring a § 2254 petition. Rather, the Sixth
Circuit has established that 28 U.S.C. § 2241 is the proper vehicle for the habeas
claims of defendants who are out on bond awaiting trial. See Klein v. Leis, 548 F.3d
425, 430 n.4 (6th Cir. 2008); Atkins v. Michigan, 644 F.2d 543, 546 n.1
(6th Cir. 1981). Judge Smith properly construed Bowling’s petition as filed under
§ 2241. See Fisher v. Rose, 757 F.2d 789, 792 n.2 (6th Cir. 1985) (treating petition
brought under § 2254 as seeking relief pursuant to § 2241).
Standard of Review
The Antiterrorism and Effective Death Penalty Act (AEDPA) requires, among
other things, that federal courts give deference to state court judgments when
considering habeas petitions. As was the case in Klein, neither party here argues that
AEDPA should not control. See Klein, 548 F.3d at 430 n.4 (citing Ross v. Petro, 515
F.3d 653, 660 (6th Cir. 2008) (applying AEDPA to petitioner’s pretrial § 2254
petition that the court construed as a § 2241 petition)); see also Johnson v. Karnes,
198 F.3d 589, 593 (6th Cir. 1999); Harpster v. Ohio, 128 F.3d 322, 326
(6th Cir. 1997) (applying AEDPA to pretrial Double Jeopardy habeas claims).
Courts only grant habeas petitions under AEDPA if the state court’s decision
was “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d). State court decisions are contrary to clearly established federal law only if
they apply a rule that contradicts Supreme Court holdings, or confront a set of facts
“materially indistinguishable” from a Supreme Court decision and reach a different
result. Bray v. Andrews, 640 F.3d 731, 737(6th Cir. 2011) (quoting Williams v.
Taylor, 529 U.S. 362, 413-14). Similarly, a state court decision is an unreasonable
application of federal law only if it applies a governing legal rule “unreasonably” to
the facts of a case or if it “unreasonably extends” a principle from Supreme Court
precedent to a new context. Id. at 738 (quoting Williams, 529 U.S. at 413).
Sufficiency of the Evidence
Bowling claims that the prosecution did not present sufficient evidence to
convict him of any theory of murder. If Bowling is correct, the “trial court should
have entered a judgment of acquittal” rather than submit his case to the jury.
Lockhart v. Nelson, 488 U.S. 33, 39 (1988). A judge’s directed acquittal is no
different from a jury acquittal, so the Double Jeopardy Clause prevents a state from
retrying a defendant whose conviction is reversed because of insufficient evidence.
See Patterson v. Haskins, 470 F.3d 645, 651-52 (6th Cir. 2006).
Bowling is successful, Kentucky cannot retry him.
Because AEDPA applies, this Court’s review is limited to whether the
Kentucky Supreme Court acted contrary to clearly established federal law when it
denied Bowling’s sufficiency of the evidence claim. It did not. Federal law holds
that evidence is sufficient to support a criminal conviction when, “after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of a crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Bowling can therefore only be successful if the
Kentucky Supreme Court “unreasonably applied the Jackson standard” to his claim.
Stewart v. Wolfenbarger, 595 F.3d 647, 653 (6th Cir. 2010).
A two-step analysis determines whether the Kentucky Supreme Court acted
unreasonably: if there was sufficient evidence to support the conviction, the federal
court’s inquiry ends; if not, the federal court must, ask whether the state court was
objectively unreasonable in concluding a rational trier of fact could find the defendant
guilty beyond a reasonable doubt. Id. This analysis requires “deference at two
levels”—the federal court must defer to the jury’s verdict, and then again to the state
court’s appellate review of that verdict.
Tucker v. Palmer, 541 F.3d 652, 656
(6th Cir. 2008). Finally, in this review, any factual findings the state court made are
“presumed correct” and can only be rebutted by clear and convincing evidence.
Tinsley v. Million, 399 F.3d 796, 801-02 (citing 28 U.S.C. § 2254(e)(1)).
Sufficient evidence supports Bowling’s conviction for murder. In Kentucky,
the essential elements of murder are that the defendant intentionally acted to cause the
death of another in order. Ky. Rev. Stat. § 507.020(1)(a). Bowling argues the
Kentucky Supreme Court relied on the testimony of Angela Fox—who did not appear
before the jury—to establish that Bowling and Jimmy Mills were involved in the
same drug trafficking ring and that Jimmy kept his drug profits at Bowling’s house.
But Donna Mills testified that when Jimmy left the house on the morning of his death,
he said he was going to visit Brock Bowling, and that Jimmy thought he had been
Donna’s testimony, when viewed in the light most favorable to the
prosecution, could have allowed the jury to reach the inferences identical to Fox’s
testimony: Jimmy and Brock were involved in dealing drugs and had a dispute over
Bowling also argues that the prosecution presented no evidence that Mills
actually did visit Bowling, R. 22 at 4-5, but the Jackson standard does not require
proof or corroboration. A rational juror, viewing the evidence in the light most
favorable to the prosecution, could infer that Jimmy Mills did in fact visit Bowling
The juror could therefore conclude that the two were together
immediately before the murder.
Moreover, other strong circumstantial evidence
linked Bowling to the murder. Christine Gibson testified that Bowling attempted to
conceal Mills’s body, and another witness placed Bowling near the location of Mills’s
body on the day it was discovered. Finally, Mills was shot three times at close range.
A jury could easily infer from this fact that the murder was intentional.
The evidence against Bowling was largely circumstantial, but it was sufficient
See United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010)
(“[c]ircumstanial evidence alone is sufficient to sustain a conviction”); see also
United States v. McAuliffe, 490 F.3d 526, 537 (6th Cir. 2007) (“We afford the same
weight to both circumstantial and direct evidence.”). If a jury drew all reasonable
inferences in favor of the prosecution, it would find that Bowling was with Mills on
the day of his murder, that Bowling had a motive to kill Mills, and that Bowling
attempted to conceal evidence of the crime after the fact. Combined, this evidence
could allow a rational tier of fact to find the essential elements of murder beyond a
reasonable doubt. This Court’s inquiry therefore ends, see Stewart, 595 F.3d at 653,
and there is no need to question whether it was reasonable for the Kentucky Supreme
Court to conclude the evidence was sufficient.
Bowling’s second claim is that the Kentucky Supreme Court acted contrary to
clearly established federal law when it denied his writ of prohibition and allowed the
state to try him again. He argues that the trial judge’s individual instructions gave the
jury the chance to convict him of principal liability, so its silence under the individual
instructions was tantamount to an implied acquittal. By this logic, his retrial would
violate the Double Jeopardy Clause of the Fifth Amendment. See R. 1-2 at 8.
Bowling is wrong. The Kentucky Supreme Court’s decision to allow a second
trial was not an unreasonable application of federal law. The Double Jeopardy Clause
only bars the government from retrying a defendant after some event, that is, an
acquittal, “terminates the original jeopardy.” Richardson v. United States, 468 U.S.
317, 325 (1984). Bowling can show his jeopardy terminated in one of two ways: by
an acquittal by the jury or by a reversal due to insufficient evidence. A reversal
because of trial error, by contrast, does not terminate jeopardy. See Burks v. United
States, 437 U.S. 1, 15-16 (1978). The Kentucky Supreme Court reversed Bowling’s
trial because of defective jury instructions, which “plainly fall” into the category of
trial error. Groseclose v. Bell, 130 F.3d 1161, 1171 (6th Cir. 1997). As a result,
reversal did not end Bowling’s jeopardy.
An implied acquittal also did not end Bowling’s original jeopardy. A jury
impliedly acquits a defendant when it has the opportunity to reach a verdict on a
charge and instead remains silent. The case of Green v. United States, 355 U.S. 184
(1957), provides a helpful illustration. In Green, the trial court instructed the jury that
it could convict the defendant of either first or second degree murder. Because under
the jurisdiction’s laws, second degree murder was included within first degree, Green
could not be guilty of both first and second degree murder—only one of the two. The
jury found the defendant guilty of second degree murder, but said nothing about first
degree. Because the jury declined to speak after the court gave it “a full opportunity
to return a verdict” of first degree murder, the defendant’s jeopardy ended for that
offense and he could not be retried for it. Id. at 190-91.
Unlike the jury in Green, the jury that convicted Bowling did not embrace one
theory of the crime at the expense of the other. Rather, the jury convicted Bowling on
instructions that encompassed both principal and accomplice liability for murder,
giving no answer as to which theory it embraced Cf. United States v. Garcia, 938
F.2d 12, 14-15 (2d Cir. 1991) (finding no implicit acquittal occurred when a jury
convicted a defendant on combination instructions without adopting a particular
theory). Bowling himself concedes that “[i]t is impossible to say . . . what the jury
intended by finding all three defendants guilty as either principals or accomplices.”
R. 1-2 at 15. If the jury had embraced one theory over the other—finding Bowling
guilty as an accomplice, but not as a principal, for instance—it would have implied an
acquittal on the other theory. But it did not. Without knowing which theory the jury
adopted, its silence on the individual theories signifies nothing. As the Kentucky
Supreme Court and Judge Smith correctly concluded, the jury did not reach an
implied acquittal of Bowling on principal liability for murder.
Bowling nevertheless argues that his case is analogous to Saylor v. Cornelius,
845 F.2d 1401 (6th Cir. 1988) because “[h]ere the Commonwealth deliberately
invited the inconclusive result” by requesting both individual and combination jury
instructions. R. 22 at 13. But the facts of Saylor are very different from Bowling’s
circumstances. See also United States v. Davis, 873 F.2d 900, 906 (6th Cir. 1989)
(recognizing that the holding of Saylor is “limited by the unusual situation we were
addressing in that case.”). The defendant in Saylor was charged with two separate
offenses and the prosecutor neglected to propose a jury instruction on one of them.
Because the trial judge did not instruct the jury on that offense, the Sixth Circuit
concluded jeopardy terminated and the defendant could not be retried.
By contrast, the prosecutor’s error in this case was to submit confusing
instructions on the murder charge, rather than no instructions. Bowling was charged
with one offense, murder, of which he was convicted. The ambiguity in the jury’s
verdict stems from the uncertainty as to which theory the jury used to convict
Bowling, not whether he was convicted at all. Saylor is therefore inapplicable here.
Because Bowling’s original jeopardy did not end, the Kentucky Supreme Court did
not act contrary to federal law when it rejected Bowling’s Double Jeopardy claim.
CERTIFICATE OF APPEALABILITY
Bowling requires a Certificate of Appealability (COA) before he can seek
appellate review of his petition. A district court will issue a COA only if a petitioner
has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). When the district court has denied a petitioner’s claims on the merits, the
petitioner must show that “reasonable jurists would find the district court’s
assessment of the constitutional claim . . . debatable or wrong.”
Cockrell, 537 U.S. 322, 338 (2003). Judge Smith recommends the Court not issue a
COA because jurists of reason would not find it debatable that Bowling’s habeas
claim does not state a valid claim of the denial of a constitutional right.
R. 20 at17-18. This Court agrees.
Accordingly, it is ORDERED that the petitioner’s objections are
OVERRULED and Judge Smith’s report and recommended disposition, R. 20, is
ADOPTED. Petitioner’s writ of habeas corpus is construed as a petition brought
under 28 U.S.C. § 2241 and is DENIED. A Certificate of Appealability is DENIED
and this action shall be STRICKEN from the active docket of the clerk.
This the 13th day of September, 2011.
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