                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0586n.06

                                        Case Nos. 13-3855/3857
                                                                                                FILED
                             UNITED STATES COURT OF APPEALS                               Oct 31, 2016
                                  FOR THE SIXTH CIRCUIT                              DEBORAH S. HUNT, Clerk


MARK LANGFORD,                                           )
                                                         )
        Petitioner-Appellee/Cross-Appellant,             )
                                                         )        ON REMAND FROM THE UNITED
v.                                                       )        STATES SUPREME COURT
                                                         )
WARDEN, ROSS CORRECTIONAL                                )        OPINION
INSTITUTION,                                             )
                                                         )
        Respondent-Appellant/Cross-Appellee.             )
                                                         )


BEFORE: BOGGS and DONALD, Circuit Judges; HOOD, District Judge.*

        BERNICE BOUIE DONALD, Circuit Judge. Petitioner Mark Langford, an Ohio state

prisoner, filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming several grounds

for relief from his state trial court conviction for murder. The district court conditionally granted

and denied the petition in part, and both sides appealed. We affirmed the district court’s decision

in all respects. This decision was remanded from the Supreme Court in light of the Supreme

Court’s decision in Davis v. Ayala, 576 U.S. _, 135 S. Ct. 2187 (2015). Because the Supreme

Court’s decision in Ayala is procedurally different than this case, we continue to AFFIRM the

district court’s decision.



        *
           The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan,
sitting by designation.
Nos. 13-3855/3557, Langford v. Warden


        Langford petitioned in federal district court for a writ of habeas corpus, seeking relief on

several grounds: (1) pre-indictment delay violated his rights to due process and a fair trial; (2) the

trial judge failed to instruct the jury on the mens rea for complicity; and (3) his appellate counsel

was ineffective for failing to raise several issues to the state court of appeals. See Langford v.

Warden, Ross Corr. Inst., No. 2:12-CV-0096, 2013 WL 459196 (S.D. Ohio Feb. 7, 2013).

The district court granted Langford relief on the jury instruction issue and dismissed Langford’s

other claims. See Langford v. Warden, Ross Corr. Inst., No. 2:12-CV-96, 2013 WL 3223379

(S.D. Ohio June 25, 2013). This Court affirmed the district court’s decision in Langford v.

Warden. Langford v. Warden, Ross Correctional Inst., 593 Fed.Appx. 422, 427-33 (6th Cir.

Nov. 12, 2014), finding that the trial judge failed to instruct the jury on the mens rea for

complicity and the state court’s decision to the contrary was unreasonable in light of the

language of the jury instructions and the record as a whole.

        The crux of the Supreme Court’s decision in Ayala is that courts on collateral review

have to give a heightened degree of deference to the state court’s review of a harmless error

decision. Ayala, at 2197. Thus, habeas petitioners, under Ayala, are not entitled to habeas relief

based on trial court error unless they can establish that it resulted in “actual prejudice.” Id.

Since there was no state court review of harmless error in this case, Ayala does not apply to the

facts of this case because this Court could not give deference to the state court’s determination of

harmless error. Therefore, we uphold our decision granting Langford habeas relief and affirming

the district court’s decision.




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Nos. 13-3855/3557, Langford v. Warden


       BOGGS, Circuit Judge, concurring in part and dissenting in part.    While the majority

correctly reads the Supreme Court’s holding in Davis v. Ayala, 576 U.S. __, 135 S. Ct. 2187

(2015), it incorrectly concludes that it has no application to this case. Ayala stands for the

proposition that federal courts must give heightened deference to a state court’s harmless-error

determination when evaluating that decision on habeas review. Id. at 2197. Where a state court

has “adjudicated on the merits” a prisoner’s alleged constitutional error and found it harmless, a

federal court may not grant habeas relief unless the state court decision was “contrary to, or

involved an unreasonable application of” the Supreme Court’s holding in Chapman v.

California, 366 U.S. 18 (1967). Id. at 2198 (quoting the Antiterrorism and Effective Death

Penalty Act of 1996, 28 U.S.C. § 2254(d)). This is a substantially more deferential standard than

the one we employed when we initially affirmed the district court’s grant of habeas relief in

Langford v. Warden, 593 F. Appx. 422, 427–33 (6th Cir. 2014).

       Recognizing that its announcement in Ayala would have potential ramifications for this

case, the Supreme Court vacated our decision in Langford and remanded the case to us for

further consideration. See Hooks v. Langford, 135 S. Ct. 2888 (2015) (mem.). The Supreme

Court frequently engages in this practice in order to “call[] the panel’s attention to [Supreme

Court] opinions highlighting the necessity of deference to state courts in § 2254(d) habeas

cases.” Cavazos v. Smith, 132 S. Ct. 2, 7 (2011). The majority ignores this directive, instead

concluding that Ayala does not apply because there was no state review of harmless error.

As the Ohio Court of Appeals makes clear, however, it did adjudicate the harmless-error issue.

The court’s opinion plainly states that “[t]he jury could not have been misled by the charge

given, nor could it have found Langford guilty based upon an error in the jury charge.” State v.

Langford, 2010 WL 3042185, at *5 (Ohio Ct. App. Aug. 5, 2010) (emphasis added). Thus, the



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Nos. 13-3855/3557, Langford v. Warden


Ohio court concluded, “[n]o reversible error is present with respect to the jury charge or

complicity.” Ibid. That the state court’s treatment of the issue is brief has no bearing on whether

or not it reached the merits—we are required to “presume[] that the state court adjudicated the

claim on the merits in the absence of any indication or state-law procedural principles to the

contrary.” Jackson v. Smith, 745 F.3d 206, 210 (6th Cir. 2014) (quoting Harrington v. Richter,

562 U.S. 86, 99 (2011)). That presumption can only be overcome “when there is reason to think

some other explanation for the state court’s decision is more likely.” Richter, 562 U.S. at 99–

100. As the Ohio court’s language demonstrates, Langford cannot make this showing.

       Thus, so long as “fairminded jurists could disagree” on the correctness of the state court’s

decision, we are required to give it deference, even if we might decide the case differently on de

novo review. Id. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). As my

dissent in our initial decision in Langford demonstrates, see 593 F. App’x at 438–41, Langford

cannot overcome this deferential standard on appeal. Therefore, I respectfully dissent.




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