The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ANTHONY K. BOLLING,
Petitioner, : Case No. 3:20-cv-167
- vs - District Judge Walter H. Rice
Magistrate Judge Michael R. Merz
NORM ROBINSON, Warden,
London Correctional Institution
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner Anthony Bolling pursuant to 28
U.S.C. § 2254, is before the Court for decision on the Petition (ECF No. 4), the State Court Record
(ECF No. 8), the Return of Writ (ECF No. 9), and the Petitioner’s Reply (ECF No. 13).
Jurisdiction
Bolling seeks relief from his conviction in the Montgomery County Court of Common
Pleas in its Case No. 2003-CR-0073 on four counts of forcible rape of a child under thirteen and
one count of felonious sexual penetration of the same victim (Petition, ECF No. 4, PageID 32).
Our habeas corpus jurisdiction is found in 28 U.S.C. § 2241, but is limited by 28 U.S.C. § 2244(b)
which provides that a petitioner must receive circuit court permission before we can consider a
second or successive habeas petition related to the same conviction.
Bolling has twice before unsuccessfully sought federal habeas relief from this 2003
conviction in Bolling v. Warden, Case 3:10-cv-114 and Bolling v. Morgan, Case No. 3:13-cv-116.
However, the Common Pleas Court entered an amended nunc pro tunc judgment of conviction
February 5, 2018, solely to impose post-release control should Bolling ever be released from his
life sentences (State Court Record, ECF No. 8-1, PageID 840-43). Respondent concedes that this
new judgment re-starts the statute of limitations and the second-or-successive counter under
binding Sixth Circuit precedent (Return, ECF No. 9, PageID 2348, citing In re Stansell, 828 F.3d
412 (6th Cir. 2016) and Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016). This Court therefore has
jurisdiction to consider the instant Petition.
Litigation History1
On January 15, 2003, a Montgomery County, Ohio grand jury indicted Bolling on four counts
of violating Ohio Revised Code § 2907.02(A)(1)(b) by rape by force of a person less than 13 years of
age, and one count of violating Ohio Revised Code § 2907.12(A)(1)(b) by felonious sexual penetration
by force of a person less than 13 years of age. (Indictment, State Court Record, ECF No. 8, PageID
66-69). A jury convicted Bolling on all five counts and he was sentenced to life imprisonment on each
count with the first three counts concurrent, the latter two counts concurrent, but the two groups
consecutive to each other.
On direct appeal the convictions were affirmed. State v. Bolling, 2005-Ohio-2509 (Ohio
App. 2d Dist. May 25, 2005). The Supreme Court of Ohio accepted review but later dismissed the
1 Respondent has filed a detailed litigation history as part of the Return, the accuracy of which Bolling does not contest.
This portion of the Report summarizes the litigation history.
review as improvidently granted. In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313
(2006), cert. den. sub nom. Bolling v. Ohio, 549 U.S. 852 (2006).
Bolling’s motion for leave to file a delayed motion for new trial, filed July 5, 2006, was
unsuccessful at all levels of the Ohio court system. Decision and Entry, State Court Record, ECF
No. 8, Ex. 35; State v. Bolling, 2007-Ohio-5976 (Ohio App. 2nd Dist. Nov. 9, 2007), appellate
jurisdiction declined, 117 Ohio St. 3d 1440 (2008).
On January 31, 2011, Bolling filed a pro se motion to dismiss for speedy trial violation, speedy
sentencing violation, and lack of final appealable order which was also unsuccessful at all stages of the
state court process. Decision and Entry, State Court Record, ECF No. 8, Ex. 64; State v. Bolling, 2011-
Ohio-6487 (Ohio App. 2nd Dist. Dec. 16, 2011), appellate jurisdiction declined, 131 Ohio St.3d 1511
(2012).
On July 27, 2017, Bolling filed a motion for resentencing and a motion for a final appealable
order. (Motion, ECF No. 8-1, Ex. 78). The State conceded that Bolling was entitled to an amended
judgment but not de novo re-sentencing. Id. at Ex. 79. The trial court accepted the State’s position
and entered the judgment at issue in this proceeding. Id. at Exs. 84, 85. The Second District affirmed.
State v. Bolling, 2019-Ohio-227 (Ohio App. 2nd Dist. Jan. 25, 2019), appellate jurisdiction declined,
155 Ohio St. 3d 1439 (2019).
Bolling then timely filed his instant Petition, pleading the following grounds for relief:
Ground One: The Petitioner was denied his right to confront and
cross examine his accuser and another witness in violation of the
Fifth and Sixth Amendment to the United States Constitution.
Supporting Facts: The Petitioner was denied the opportunity to
test the credibility of the accusing witness in front of the jury and he
was further denied the opportunity to question the lead detective
regarding the lack of investigation prior to arrest. The trial court held
that questioning the accuser on her propensity for lying could only
be done outside of the presence of the jury, denying the defendant a
meaningful opportunity at adversarial testing. The Defendant was
additionally prohibited from questioning the accusing witness as to
whether she had tampered with a key piece of evidence. Petitioner's
Confrontation rights were further violated when the trial court
restricted his ability to question the lead detective as to why he had
destroyed audio tapes of witness interviews prior to trial. Petitioner
was further restricted from questioning Detective Charles about
inconsistencies in the accuser's story in further violation of his right
to confront and cross examine his accuser.
Ground Two: The State committed prosecutorial misconduct and
violated the Plaintiff’s (sic) right to Due Process and a Fair Trial.
Supporting Facts: The State prosecutor referred to the State' s
witness, Josh Hodson, as an expert witness and the State told the
jury that Hudson was an expert when Hudson was never certified as
an expert and was in fact a lay witness. The State deliberately
misrepresented Hodson's status in order to give him the imprimatur
of an expert witness without demonstrating that he had any expert
knowledge and without having the court declare him to be an expert.
Ground Three: Petitioner was denied Due Process and his right to
a fair trial because the indictment against him failed to put him on
notice of the charges against him.
Supporting Facts: The vague and generalized indictment
precluded the Defendant from being able to present a meaningful
defense. The indictment failed to set forth any specific act at any
specific time and the Defendant had to wait until mid-trial to learn
the specifics of the accusations against him. Petitioner was unable
to present an alibi defense or any meaningful defense because he
was not put on fair notice of the crime charged in violation of his
right to due process and a fair trial.
Ground Four: The Petitioner was denied his right to Due Process
and a Fair Trial pursuant to the Fifth and Sixth Amendment to the
United States Constitution when he was prohibited from cross
examining his accuser for bias, but the prosecution was permitted to
address the issue on rebuttal.
Supporting Facts: During the trial the Defendant proffered that his
accuser had fabricated the claims against him because Petitioner
had raised issues regarding her sexual involvement with Sean Hastv.
an adult friend of the family. Petitioner attempted to demonstrate
that the allegations against him had been fabricated in retaliation for
Petitioner exposing this relationship to the accuser's mother. The
trial court prohibited the cross examination on the grounds that it
violated the state’s rape shield law. Then on rebuttal the State
directly asked the accuser about the nature of her relationship with
Sean Hasty, the same relationship that the Petitioner was prohibited
from discussing by order of the Court. The rape shield law was used
to benefit one party and to the detriment of another and its unequal
application denied the Petitioner his Confrontation rights as well as
denied him his right to due process and a fair trial.
Ground Five: Petitioner was denied the effective assistance of
counsel as guaranteed by the Sixth Amendment when his trial
counsel failed to investigate his case and failed to retain an expert
witness to examine the State’s confrontation tape.
Supporting Facts: The retention of an expert witness to examine
the authenticity of the State's tape recording would have provided
the Defendant with a viable defense and it would have permitted him
to impeach the State's witnesses. Post-trial Defendant retained an
expert witness who discovered a previously undisclosed
conversation on the tape which proves that the accusing witness was
lying when she asserted that she had taped the entire conversation
and the lead detective lied when he asserted that he kept all of the
recorded conversations. Further, retention of an expert witness
would have made clear that the state's expert was not a qualified
expert and he did not, as the State claimed. authenticate the tape.
Bolling was prejudiced because the jury relied on unauthenticated
evidence that has since been refuted by a qualified expert.
Ground Six: The Petitioner was denied his right to Due Process and
a Fair Trial as guaranteed by the 5th, 6th, and 14th Amendment to
the United States Constitution.
Supporting Facts: The State of Ohio denied the Petitioner Due
Process – when it withheld the unedited and unaltered tape recording
from the Defendant prior to trial. The tape the State turned over to
the defense and presented the jury had been “enhanced” by the
State’s expert. Petitioner attempted for more than 10 years to get the
unedited tape and succeeded in getting a copy of an 8-minute portion
in 2017 and sent it to an expert for analysis. That analysis revealed
the presence of an underlying previously undisclosed conversation
that proves that the tape that was presented to the jury was not
authentic and that witness testimony presented to the jury was not
authentic and that witness testimony presented to the jury that the
tape contained the entire conversation between the parties was a
materially false statement.
(Petition, ECF No. 4, PageID 36-45.)
Analysis
In his direct appeal from the judgment challenged in this case, Bolling raised the following
four assignments of error:
THE DEFENDANT'S RIGHTS TO CONFRONTATION AND
CROSS-EXAMINATION WERE VIOLATED WHEN THE
TRIAL COURT RESTRICTED HIS ABILITY TO CROSS-
EXAMINE HIS ACCUSER AND THE LEAD DETECTIVE IN
VIOLATION OF THE FIFTH AND SIXTH AMENDMENTS TO
THE U.S. CONSTITUTION AND ARTICLE I, SECTION 10 OF
THE OHIO CONSTITUTION.
THE STATE COMMITTED PROSECUTORIAL MISCONDUCT
WHEN IT MISLED THE JURY TO BELIEVE THAT JOSH
HODSON WAS AN EXPERT WITNESS WHEN HE WAS
NEVER CERTIFIED AS AN EXPERT BY THE TRIAL COURT.
THE APPELLANT'S RIGHT TO DUE PROCESS AND A FAIR
TRIAL WERE VIOLATED BECAUSE THE INDICTMENT WAS
INSUFFICIENT TO PUT THE DEFENDANT ON FAIR NOTICE
OF THE CHARGES AGAINST HIM.
THE DEFENDANT WAS DENIED THE RIGHT TO DUE
PROCESS OF LAW AND A FAIR TRIAL WHEN HE WAS
PROHIBITED FROM ASKING THE ACCUSER ANY
QUESTIONS ABOUT ANOTHER RELATIONSHIP AS
EVIDENCE OF BIAS, BUT THE PROSECUTION WAS
ALLOWED TO EXAMINE THE WITNESS ABOUT THE
RELATIONSHIP ON REBUTTAL.
Bolling, 2019-Ohio-227, ¶ 14. These Assignments of Error map to Petitioner’s First, Second,
Third, and Fourth Grounds for Relief respectively. The Second District Court of Appeals declined
to reach these four Assignments of Error on the merits because it found
[*P15] Upon review, we find res judicata applicable to these
arguments. The doctrine bars re-litigation of matters that either were
raised in a prior appeal or could have been raised in a prior appeal.
State v. McCoy, 2d Dist. Greene No. 04CA112, 2005-Ohio-6837, ¶
15. Even if Bolling's remaining four assignments of error addressed
new arguments that he did not raise previously, he could have raised
them in his direct appeal in Bolling I. Therefore, any issues
regarding the original indictment and the admission and/or
exclusion of evidence by the trial court are barred by res judicata.
Furthermore, res judicata applies to all of the other aspects of the
merits of Bolling's convictions, including the determination of guilt
and the lawful elements of the ensuing sentence. See Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph three
of the syllabus.
Id. at ¶ 15. Respondent relies on this res judicata holding to assert that Bolling’s First, Second,
Third and Fourth Grounds for relief have been procedurally defaulted.
Bolling argues that res judicata does not apply because the State could have foregone the
changes it made to his judgment (adding post-release control, the reasons for consecutive
sentences, and noting that conviction was based on a jury verdict), but that it did not so and is
therefore precluded from relying on res judicata. (Reply, ECF No. 13, PageID 2427, citing
Arizona v. California, 460 U.S. 605 (1983)). Moreover, he asserts, “when a state court declines to review
the merits of a Petitioner's claim on the ground that it has done so already, it creates no bar to federal habeas
review. Cone v. Bell, 556 U.S. 449, 466-67 (2009).” Id.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786
F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th
Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261
F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner
can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
Ohio criminal law has a relevant procedural rule: an issue which was presented on direct
appeal and decided or which could have been presented on direct appeal but was not will not later
be considered on the merits by the Ohio courts; it is barred by res judicata. State v. Perry, 10 Ohio
St. 2d 175 (1967). The Second District Court of Appeals applied that rule to Bolling’s Second,
Third, Fourth, and Fifth Assignments of Error, enforcing the Perry res judicata rule. The Sixth
Circuit has repeatedly upheld the Perry res judicata rule as an adequate and independent state
ground of decision. Durr v. Mitchell, 487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274
F.3d 337 (6th Cir. 2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209
F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted);
Van Hook v. Anderson, 127 F. Supp. 2d 899, 913 (S.D. Ohio 2001).
Bolling does not offer any excusing cause and prejudice or any new evidence of actual
innocence so as to excuse his procedural default. Instead he relies on the two cited Supreme Court
cases.
Arizona v. California, 460 U.S. 605 (1983), was an original action in the Supreme Court between
Arizona and California over water rights. The Court held that the federal doctrine of res judicata as applied
to original actions in the Supreme Court prohibited relitigation of the factual issue of the amount of irrigable
land on five Indian reservations.
It is clear that res judicata and collateral estoppel do not apply
if a party moves the rendering court in the same proceeding to
correct or modify its judgment. 1B Moore para. 0.407, pp. 931-
935; R. Field, B. Kaplan, & K. Clermont, Materials on Civil
Procedure 860 (4th ed. 1978). Nevertheless, a fundamental precept
of common-law adjudication is that an issue once determined by a
competent court is conclusive. Montana v. United States, 440 U.S.
147, 153 (1979); Federated Department Stores, Inc. v. Moitie, 452
U.S. 394, 398 (1981); Cromwell v. County of Sac, 94 U.S. 351, 352-
353 (1877). "To preclude parties from contesting matters that they
have had a full and fair opportunity to litigate protects their
adversaries from the expense and vexation attending multiple
lawsuits, conserves judicial resources, and fosters reliance on
judicial action by minimizing the possibility of inconsistent
decisions." Montana v. United States, supra, at 153-154.
460 U.S. at 619. As shown in bold face in this quotation, the opinion in Arizona v. California does
include the language quoted by Bolling, but it is in the context of a general discussion of res
judicata, not in deciding whether a State may adopt res judicata as a bar to relitigation of issues in
criminal cases. As noted above, the Sixth Circuit has repeatedly upheld the res judicata doctrine
of State v. Perry and the Supreme Court has never held to the contrary.
Cone v. Bell, 556 U.S. 449 (2009), was a capital habeas corpus case from Tennessee.
Analyzing Tennessee’s law on prior litigation of issues in criminal cases, Justice Souter wrote:
Under Tennessee law in effect at the time, a criminal defendant was
entitled to collateral relief if his conviction or sentence violated "any
right guaranteed by the constitution of [Tennessee] or the
Constitution of the United States." Tenn. Code Ann. § 40-30-105
(1982); see also § 40-30-102. Any hearing on a petition for
postconviction relief was limited, however, to claims that had not
been "waived or previously determined." See § 40-30-111. A ground
for relief was "previously determined" if "a court of competent
jurisdiction ha[d] ruled on the merits [of the claim] after a full and
fair hearing." § 40-30-112(a). The claim was waived "if the
petitioner knowingly and understandingly failed to present it for
determination in any proceeding before a court of competent
jurisdiction in which the ground could have been presented." § 40-
30-112(b)(1).
556 U.S. at n. 8. Thus Tennessee law is different from Ohio law. Tennessee courts will not
consider the merits of a constitutional claim on collateral attack if (1) they have already ruled once
on the merits or (2) the defendant has voluntarily waived such a determination. Under Ohio law,
in contrast, a defendant loses (forfeits) an opportunity for a state court decision on the merits of a
claim if he could have raised it on direct appeal but failed to do so. Ohio law does not require that
the opportunity be waived by a defendant’s knowing and voluntary act.2
Because Bolling could have but did not present his First, Second, Third, and Fourth
Grounds for Relief on direct appeal, they are procedurally defaulted and should be dismissed with
prejudice on that basis.
Ground Five: Ineffective Assistance of Trial Counsel
In his Fifth Ground for relief, Bolling claims he received ineffective assistance of trial
counsel when his trial attorney did not adequately investigate his case and, in particular, did not
hire an expert to forensically analyze a tape recording of a conversation between Bolling and the
victim.
Respondent asserts Bolling failed to exhaust this claim in the state courts and thereby
procedurally defaulted it (Return, ECF No. 9, PageID 2395). Bolling claims, however, that he
2 The distinction between waiver and forfeiture is explained by the Supreme Court as follows: N. 4: “We note here
the distinction between defenses that are ‘waived’ and those that are ‘forfeited.’ A waived claim or defense is one
that a party has knowingly and intelligently relinquished; a forfeited plea is one that a party has merely failed to
preserve. Kontrick v. Ryan, 540 U.S. 443, 458, n. 13 (2004); United States v. Olano, 507 U.S. 725, 733 (1993).
appropriately presented this claim in the petition for post-conviction relief he filed after the 2018
judgment (Reply, ECF No. 13, PageID 2443, citing State Court Record, ECF No. 8-1, Ex. 99).
The trial court dismissed the petition on grounds that it was untimely, concluding the February
2018 judgment did not re-set the Ohio statute of limitations on petitions for post-conviction relief.
Id. at Ex. 102. On appeal the Second District held that the new judgment did not re-set the statute
of limitations and that the trial court did not have jurisdiction to consider the petition under Ohio
Revised Code § 2953.23 because Bolling had not shown he was unavoidably prevented from
obtaining the evidence on which he relied, i.e., the forensic expert’s analysis of the audiotape.
State v. Bolling, 2019-Ohio-4093 (Ohio App. 2nd Dist. Oct. 4, 2019), appellate jurisdiction
declined, 2020-Ohio-122 (2020).
Bolling argues:
The state courts denial on timeliness grounds is misplaced and is a
result of the state court's refusal to acknowledge the 2018
Termination Entry as the binding judgment in this case. Bolling filed
within one year of that decision. The Judgment was file on February
5, 2018 and the petition for post conviction relief was filed on
October 25, 2018, well within the one-year statute of limtations
[sic].
(Reply, ECF No. 13, PageID 2443-44.)
Questions of the interpretation of the Ohio post-conviction statute, including its limitations
period, are questions of state law on which this Court is bound by state court decisions. Bradshaw
v. Richey, 546 U.S. 74 (2005). Although federal law treats the new judgment as restarting the
federal statute of limitations and the second-or-successive counter for purposes of federal court
jurisdiction, state courts are under no federal constitutional obligation to do the same.
State statutes of limitations are adequate and independent state grounds for decisions of
constitutional questions. Here the Second District enforced the limitations provisions in Ohio
Revised Code § 2953.21 and .23 against Bolling and he has offered no excusing cause and
prejudice. In fact, as the Second District pointed out, Bolling had had the allegedly tampered-with
audiotape before trial in 2003. Ground Five should therefore be dismissed with prejudice as
procedurally defaulted.
Ground Six: Denial of Discovery of Exculpatory Material
In his Sixth Ground for Relief, Bolling claims his right to a fair trial and due process of law
were violated by the State’s failure to produce the original audiotape before trial in violation of
Brady v. Maryland, 373 U.S. 83 (1963). In reply to Respondent’s defenses, Bolling makes it very
clear that he is raising a Brady claim:
The Respondent alleged defenses lack merit. Respondent asserts
that a federal constitutional claim was not presented to the state court
or exhausted . This claim was presented to the state court. (Doc. 8-
1, PageID #947-958). It was also presented on appeal to the Ohio
Court of appeals and the Supreme Court of Ohio. (Doc. 8-1, PageID
#1019-1035, 1074-89). Contrary to Respondent's assertion, the
claim was clearly presented to each court as a federal constitutional
claim. Respondent also cites to Cress v. Palmer, 484 F.3d 644, 853
(6th Cir. 2007) and Kirby v. Dutton, 794 F.2d 245 (6th Cir. 1 986)
and claims that they stand for the proposition that any claim
presented in a collateral attack cannot be presented in a habeas
petition. While a creative argument, neither case goes that far.
Bolling is not presenting errors in a collateral proceeding, such as
lack of counsel in Kirby or hearing requirements in Cress to this
Court. Rather, the claim presented here is a Brady violation, a
violation that clearly can be presented in a habeas petition.
(Reply, ECF No. 13, PageID 2448). The cited pages of the trial court record (PageID 947-58) are
to Bolling’s most recent motion for leave to file a delayed motion for new trial. Bolling’s claim
there is that the expert opinion of his retained audio forensic expert is “newly discovered” so as to
satisfy the test in Ohio R. Crim. P. 33 for a delayed motion for new trial. There is a passing citation
to Brady as part of a claim that the State, at the time of trial, had destroyed “potentially exculpatory
evidence” by not maintain the audiotape in its “original” condition, but the constitutional claim
being made in that filing is not a Brady claim, but an ineffective assistance of trial counsel claim.
Bolling raised denial of his motion for leave to file a delayed motion for new trial as his
first assignment of error on appeal and the Second District decided it as follows:
First Assignment of Error
[*P17] Under his first assignment of error, Bolling contends that
the trial court erred in overruling his motion for new trial without
first ruling on his motion for leave to file a delayed motion for new
trial. Bolling also contends that, even if this court finds that the trial
court properly addressed his motion for leave, the trial court
nevertheless erred in overruling it. We disagree.
[*P18] As previously noted, Bolling simultaneously filed a motion
for leave to file a delayed motion for new trial and a motion for new
trial based on newly discovered evidence. Pursuant to Crim.R.
33(A)(6), a convicted defendant is permitted to file a motion for new
trial on grounds that "new evidence material to the defense has been
discovered that the defendant could not with reasonable diligence
have discovered and produced at trial." State v. Parker, 178 Ohio
App.3d 574, 2008-Ohio-5178, 899 N.E.2d 183, ¶ 15 (2d Dist.).
There is, however, a specific time limitation in which a motion for
new trial based on newly discovered evidence must be filed.
Pursuant to Crim.R. 33(B), "[m]otions for new trial on account of
newly discovered evidence shall be filed within one hundred twenty
days after the day upon which the verdict was rendered[.]"
[*P19] "In order to file a motion for new trial beyond the 120-day
time limitation specified in Crim.R. 33(B), a defendant must first
seek leave of the trial court to file a delayed motion." (Citations
omitted.) State v. Moore, 2d Dist. Clark No. 2017-CA-49, 2018-
Ohio-318, ¶ 16. Crim.R. 33(B) does not prescribe a specific
timeframe for when a motion for leave must be filed, but this court
has held that it must be filed "within a reasonable time" after a
defendant discovers the new evidence on which his motion for new
trial is based. (Citations and emphasis omitted.) State v. York, 2d
Dist. Greene No. 2000 CA 70, 2001-Ohio-1528, 2001 WL 332019,
*4 (Apr. 6, 2001). Accord State v. Warren, 2d Dist. Montgomery
No. 28092, 2019-Ohio-3522, ¶ 72 and 74.
[*P20] "To obtain leave to file a delayed motion for new trial, the
defendant 'must demonstrate by clear and convincing evidence that
he or she was unavoidably prevented from timely filing the motion
for a new trial or discovering the new evidence within the time
period provided by Crim.R. 33(B).'" Moore at ¶ 17, quoting State v.
Warwick, 2d Dist. Champaign No. 01CA33, 2002-Ohio-3649, 2002
WL 1585663, *2 (July 19, 2002). Clear and convincing evidence is
"'that measure or degree of proof which is more than a mere
"preponderance of the evidence," but not to the extent of such
certainty as is required "beyond a reasonable doubt" in
criminal cases, and which will produce in the mind of the trier of
fac[t] a firm belief or conviction as to the facts sought to be
established.'" State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54
(1990), quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118
(1954), paragraph three of the syllabus. (Other citation omitted.)
"'[A] party is unavoidably prevented from filing a motion
for new trial if the party had no knowledge of the existence
of the ground supporting the motion for new trial and could
not have learned of the existence of that ground within the
time prescribed for filing the motion for new trial in the
exercise of reasonable diligence.'"
Parker at ¶ 16, quoting State v. Walden, 19 Ohio App.3d 141, 145-
146, 19 Ohio B. 230, 483 N.E.2d 859 (10th Dist.1984).
[*P21] This court reviews a trial court's ruling on a motion for
leave to file a delayed motion for new trial for an abuse of discretion.
State v. Risden, 2d Dist. Montgomery No. 25234, 2013-Ohio-1823,
¶ 11. "'Abuse of discretion' has been defined as an attitude that is
unreasonable, arbitrary or unconscionable." (Citation omitted.) State
v. Wilson, 2d Dist. Montgomery Nos. 24461, 24496, 24501, 2012-
Ohio-1660, ¶ 29. "It is to be expected that most instances of abuse
of discretion will result in decisions that are simply unreasonable,
rather than decisions that are unconscionable or arbitrary." AAAA
Ents., Inc. v. River Place Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). "A decision is
unreasonable if there is no sound reasoning process that would
support that decision." Id.
[*P22] In this case, almost 15 years after his verdict was rendered,
Bolling simultaneously filed a motion for leave to file a delayed
motion for new trial and a corresponding motion for new trial.
Because his motion for new trial was clearly untimely, as part of his
motion for leave, Bolling was required to demonstrate that he was
unavoidably prevented from timely filing his motion for new trial.
As previously noted, "a party is unavoidably prevented from filing
a motion for new trial if the party had no knowledge of the existence
of the ground supporting the motion for new trial and could not have
learned of the existence of that ground within the time prescribed
for filing the motion for new trial in the exercise of reasonable
diligence." Walden at 145-146.
[*P23] Here, Bolling's motion for new trial was based on newly
obtained evidence from a forensic audio expert who analyzed the
audiotaped telephone conversations between Bolling and the victim.
The pertinent portion of the expert's analysis concluded that there
were previous statements on the audio recording that had been
"deleted, erased over or otherwise omitted." However, after a
thorough review of the record, we find that even without the newly
obtained expert analysis, Bolling was aware of the fact that there
were previously recorded statements on the audiotape before his
trial.
[*P24] The record establishes that Bolling received the audiotape
from the State prior to trial. After receiving the audiotape, the record
indicates that on May 8, 2003, Bolling filed a motion in limine in
which he moved the trial court to suppress the admission of the
audiotape on grounds that the "the tape may have been tampered
with." Motion in Limine Suppressing State's Witness and Evidence
(May 8, 2003), Montgomery C.P. No. 2003-CR-0073, p. 1.
Thereafter, on July 29, 2003, Bolling also filed a pretrial motion for
an evidentiary hearing in which he argued the following:
Previously it was disclosed that the same detective left an
undisclosed number of tapes with the complaining witness
and her mother and instructed them to tape the defendant's
conversations. It is unclear how many tapes the detective
left with the complainant and her mother and it is unclear
what instructions he gave them but it is uncontroverted that
the complainant's mother and perhaps the complainant
taped a least one conversation and then used the same tape
to tape over it. The Defendant, if called to testify for the
limited purpose of this issue, would testify as to the nature
of the conversations that were probably taped and the
topics thereof. It is submitted that the Defendant's remarks
and the topics discussed during the erased conversations
were exculpatory in nature.
(Emphasis added.) Motion and Demand for Evidentiary Hearing
(July 29, 2003), Montgomery C.P. No. 2003-CR-0073, p. 2.
Therefore, the record indicates that Bolling had knowledge of the
existence of the ground supporting his motion for new trial as early
as May or July 2003.
[*P25] The fact that Bolling was aware of the issue with the
audiotape during trial was also alluded to in several of his post-
conviction motions. In his 2008 motion to access the audiotape
under R.C. 149.43, Bolling noted that "the creation of these tapes
were erased in the creation of the tape [that] was ultimately used in
evidence." was not only in dispute, but the complaining witness
almost inadvertently let slip during cross examination that, in fact,
several phone conversations were recorded and some Similarly, in
the motion for new trial at issue in this appeal, Bolling also noted
that he "testified at trial about these other conversations, in fact he
testified that there were more than 20 conversations with [the
victim's mother] during the time period in which the recording was
made" and "that there was an extensive conversation with [the
victim] in the so-called 'confrontation tape' call prior to her turning
the recorder on."
[*P26] Although Bolling had longstanding knowledge of the
ground supporting his motion for new trial, Bolling provides no
reasonable excuse for why it took him over 14 years to obtain the
audiotape and have it analyzed. The record indicates that Bolling did
not request the audiotape for forensic analysis until 2008 when he
filed his R.C. 149.43 motion. Bolling therefore waited five years
after his conviction to request the audiotape. Bolling fails to explain
why he never attempted to obtain the audiotape earlier so that he
could have addressed it in his first motion for new trial, which he
filed in 2006.
[*P27] The record also indicates that in September 2010, Bolling's
brother and two other individuals successfully obtained copies of the
audiotape as part of a Freedom of Information Act request, but then
took no action on the matter for six years. It was not until September
2016, that Bolling's brother filed a subsequent motion requesting
the original audiotape on grounds that the copy provided by the
court administrator was insufficient for audio analysis. Bolling
provided no explanation for the six-year delay. Although Bolling
averred that his brother was able to obtain a sufficient copy of the
audiotape in April 2017, Bolling fails to explain why a sufficient
copy of the audiotape could not have been requested and obtained
earlier.
[*P28] For the foregoing reasons, the trial court did not abuse its
discretion in overruling Bolling's motion for leave to file a delayed
motion for new trial. More specifically, it was not unreasonable for
the trial court to find that Bolling was not unavoidably prevented
from filing his motion for new trial when, for over 14 years, Bolling
knew about the issue with the audiotape on which his motion for
new trial was based and failed to request and obtain a copy of the
audiotape for analysis within a reasonable time.
[*P29] Moreover, contrary to Bolling's claim otherwise, the fact
that the trial [court] overruled the motion for new trial, as opposed
to the motion for leave, is immaterial. It is clear from the trial court's
written decision that the court found Bolling's motion for new trial
untimely and that Bolling was not unavoidably prevented from
filing the motion. Because the trial court's holding reflects the
appropriate Crim.R. 33(B) standard for granting or denying leave,
and because the merits of Bolling's motion for new trial were never
addressed, we find that the trial court's decision properly ruled on
Bolling's motion for leave to file a delayed motion for new trial.
[*P30] Bolling's first assignment of error is overruled.
Bolling, 2019-Ohio-4093. One searches this portion of the opinion in vain for any indication the
Second District understood it was deciding a Brady claim.
To preserve a federal constitutional claim for presentation in habeas corpus, the claim must
be "fairly presented" to the state courts in a way which provides them with an opportunity to
remedy the asserted constitutional violation, including presenting both the legal and factual basis
of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d
1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by
Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir.
1991). The claim must be fairly presented at every stage of the state appellate process. Wagner v.
Smith, 581 F.3d 410, 418 (6th Cir. 2009).
Principles of comity require that we not seek to upset a state court
conviction on the basis of an alleged constitutional violation that the
state court never had an opportunity to correct. See Rose v. Lundy,
455 U.S. 509, 518 (1982). “Accordingly, we have required a state
prisoner to present the state courts with the same claim he urges
upon the federal courts.” Lyons v. Stovall, 188 F.3d 327, 331–32
(6th Cir. 1999) (quoting Picard v. Connor, 404 U.S. 270, 276
(1971)). “[I]f an unexhausted claim would be procedurally barred
under state law, that claim is procedurally defaulted for purposes of
federal habeas review.” Awkal v. Mitchell, 613 F.3d 629, 646 (6th
Cir. 2010) (en banc) (quoting Alley v. Bell, 307 F.3d 380, 385 (6th
Cir. 2002)).
Allen v. Mitchell, 953 F.3d 858 (6th Cir. 2020).
Because Bolling did not fairly present his Brady claim to the Second District Court of
Appeals on his appeal from denial of his motion for leave to file a delayed motion for new trial,
he has procedurally defaulted that claim and it should be dismissed with prejudice.
Conclusion
In accordance with the foregoing analysis, the Magistrate Judge recommends that the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that
the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should not
be permitted to proceed in forma pauperis.
September 24, 2020.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6. Such objections shall specify the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the objections. A party may respond to
another party’s objections within fourteen days after being served with a copy thereof. Failure to
make objections in accordance with this procedure may forfeit rights on appeal.