The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROSALIE N. KENNEDY,
Petitioner, :
Case No. 2:20-cv-2979
v.
Judge Sarah D. Morrison
Magistrate Judge Michael R.
Merz
WARDEN, MARYSVILLE
REFORMATORY FOR WOMEN, :
Respondent.
OPINION AND ORDER
This habeas corpus case was brought pro se by Petitioner Rosalie Kennedy to
obtain relief from her conviction for murder in the Logan County Court of Common
Pleas. The case is before the Court on Petitioner’s Objections1 (Objs., ECF No. 52)
to the Magistrate Judge’s Report and Recommendations (R&R, ECF No. 37) which
recommended that the Amended Petition be dismissed with prejudice.
Under Fed. R. Civ. P. 72(b)(3), the referring District Judge must review de
novo any portion of a Magistrate Judge’s report on a dispositive motion to which
substantial objection has been made. This Opinion and Order contains the results
of that de novo review.
1 Because Petitioner’s Objections contain the private information of non-
parties, the Court ordered the original (ECF No. 53) sealed and a redacted copy
(ECF No. 52) to be filed on the open docket (Notation Order, ECF No. 51). PageID
references in this Decision are to the redacted copy.
I. General Objection
Petitioner begins by objecting generally to the Magistrate Judge’s
recommendation of dismissal. (Objs., PageID # 3179–85.) She accuses the Common
Pleas Court, the prosecutor, and her trial attorneys of conspiring to deprive her of
her rights under the Constitution in violation of 18 U.S.C. §§ 241 and 242. These
are criminal statutes; alleged violations can only be considered by the Court after a
federal grand jury has returned an indictment which has not occurred.
Petitioner repeats these conspiracy charges throughout her Objections, but
has produced no proof of any agreement among the trial participants to deprive her
of her rights. The fact that the other participants agreed on many points in the
course of the trial does not by itself prove they agreed in order to injure Petitioner
or deprive her of her rights. This Decision therefore provides no further analysis of
the § 241 and § 242 claims.
Petitioner asserts the trial judge, Judge William Goslee, should have
disqualified himself from presiding in the case because twenty years prior he had
been the prosecutor in a misdemeanor domestic violence case against her husband,
the deceased in this case, and thus knew of his propensity to violence. On its face
this suggests Judge Goslee knew facts favorable to Petitioner’s position, but her
argument is that he let her husband off too lightly by letting him plead to disorderly
conduct.
The Report deals with the disqualification issue in its analysis of Ground
Ten. (R&R, PageID # 3125.) The Magistrate Judge concluded that the record
disclosed no basis for disqualifying Judge Goslee and the Court agrees. In any
event this claim is procedurally defaulted because it was not presented to the Chief
Justice of Ohio as a basis for disqualification before trial.
Petitioner also asserts that the Magistrate Judge is biased against her,
demonstrated by the Judge accusing her “of pointing the gun and firing it three
times.” (Objs., PageID # 3180, citing R&R, PageID # 3114.) As the Report notes at
that point, Petitioner admitted firing the gun when she made the initial 911 call to
report that her husband had been shot. On direct appeal, the Third District Court
of Appeals found that the evidence showed three shots had been fired from the .22
caliber revolver. State v. Kennedy, 2018-Ohio-4172 ¶ 27 (Ohio App. 3rd Dist. Oct.
15, 2018). The Magistrate Judge did not make any accusations, but simply reported
what the state courts had found to be the facts. This Court is bound to accept
findings of fact by the state courts unless the petitioner overcomes that presumption
of correctness by clear and convincing evidence. As noted below in reviewing
Ground Ten, Petitioner has not met that burden.
Petitioner further objects that the Magistrate Judge’s recommendation of
denial of a certificate of appealability is a denial of due process. (Objs., PageID
# 3179.) There is no constitutional due process right to appeal from an adverse
decision in a habeas corpus case. Rather, Congress has conditioned any appeal on
proof that, as to any issue appealed, reasonable jurists would disagree with the trial
court’s decision. 28 U.S.C. § 2244(b). In Rule 11 of the Rules Governing § 2254
Cases, the Supreme Court requires district courts to consider the appealability
issue in any final decision of a habeas corpus case. The Sixth Circuit has recently
reminded District Courts to take this question seriously:
In short, a court should not grant a certificate without some substantial
reason to think that the denial of relief might be incorrect. Crucially, in
applying this standard, a court must consider not only the merits of the
underlying constitutional claim but also any procedural barriers to
relief. Buck v. Davis, 137 S. Ct. 759, 777, 197 L. Ed. 2d 1 (2017); Slack
[v. McDaniel], 529 U.S. at 484–85; see also Dufresne v. Palmer, 876 F.3d
248, 254 (6th Cir. 2017). To put it simply, a claim does not merit a
certificate unless every independent reason to deny the claim is
reasonably debatable.
[T]he standards for a certificate are no mere technicality. Quite the
contrary. By authorizing extra appeals, improper certificates add to the
“profound societal costs” of habeas litigation while sapping limited
public resources. Calderon v. Thompson, 523 U.S. 538, 554, 118 S. Ct.
1489, 140 L. Ed. 2d 728 (1998) (quoting Smith v. Murray, 477 U.S. 527,
539, 106 S. Ct. 2661, 91 L. Ed. 2d 434 (1986)). For one, they divert our
time and attention from the cases Congress actually meant us to hear,
often leading us to appoint counsel and schedule argument in cases that
we later find to be insubstantial. For another, they require state and
federal government attorneys to devote their time and attention to
defending appeals that should never have existed. Plus, they may even
harm those habeas petitioners whose claims really do merit an appeal
because it could “prejudice the occasional meritorious [claim] to be
buried in a flood of worthless ones.” Brown v. Allen, 344 U.S. 443, 537,
73 S. Ct. 397, 97 L. Ed. 469 (1953) (Jackson, J., concurring). In short, it’s
critical that courts follow the rules Congress set.
Moody v. United States, 958 F.3d 485 (6th Cir. 2020). To show entitlement to a
certificate of appealability, an unsuccessful habeas petitioner must show that
reasonable jurists would disagree as to one or more decisions of the District Court.
A general plea of “due process” is insufficient.
Petitioner also complains of the Magistrate Judge’s recommendation that she
not be allowed to appeal in forma pauperis because, she says, her lack of funds has
been unquestioned. (Objs., PageID # 3179.) But it is not Petitioner’s indigent status
that is in question. Rather, Congress has provided that pro se appellants be exempt
from the filing fee only if there is an issue that is appealable in objective good faith.
28 U.S.C. § 1915(a)(3). The Sixth Circuit Court of Appeals requires that district
courts determine, in all cases where the appellant seeks to proceed in forma
pauperis, whether the appeal is frivolous. Floyd v. United States Postal Service, 105
F.3d 274 (6th Cir. 1997).
Though Petitioner may disagree with the Magistrate Judge’s
recommendations on these two issues, his recommendations do not show bias.
Finally, Petitioner complains that the Magistrate Judge ignored all the new
evidence about the old domestic violence case. (Objs., PageID # 3180.) However, the
Magistrate Judge was bound not to consider that new evidence on the merits of the
case because it was never presented to the state courts as a basis for relief from
conviction. Cullen v. Pinholster, 563 U.S. 170 (2011).
II. GROUND ONE: INEFFECTIVE ASSISTANCE OF COUNSEL FOR
FAILURE TO FILE A MOTION TO SUPPRESS PETITIONER’S
STATEMENT TO DETECTIVE WATSON
In her First Ground for Relief, Petitioner asserts she received ineffective
assistance of trial counsel when her attorney did not move to suppress her
statement to Detective Watson. The Report recommends that the Court defer to the
Third District Court of Appeals’ decision that allowing the statement to be admitted
in evidence was a reasonable tactical decision of her attorney to get her version of
events before the jury without having her take the stand. (R&R, PageID # 3097.)
Petitioner’s Objections stand on her claim that she was not advised during
the Miranda warnings that anything she said could be used against her. (Objs.,
PageID # 3186–87.) The Third District and the Magistrate Judge acknowledged
this, but concluded that allowing the statement was a reasonable tactical decision.
Petitioner does not speak to this conclusion at all, and instead raises claims of
conspiracy, evidence tampering, etc.
Strategic choices by defense counsel are “virtually unchallengeable.” Buell v.
Mitchell, 274 F.3d 337, 359 (6th Cir. 2001) (quoting Meeks v. Bergen, 749 F.2d 322,
328 (6th Cir. 1984)). Although the ultimate decision whether to testify rests with
the defendant, when counsel decides not to have his or her client testify, the
defendant’s consent is presumed. Gonzales v. Elo, 233 F.3d 348, 356 (6th Cir. 2000).
A defendant who insists on testifying against his attorney’s desires must, at a
minimum, alert the trial court that he wishes to do so or that there is a
disagreement with his attorney. Id. at 357. Petitioner does not claim she did so, but
blames Judge Goslee for not reminding her of her right to testify. (Objs., PageID
# 3187.)
The question presented in Ground One is not whether the interrogating
officer strictly complied with Miranda or whether the statement was hearsay.2 The
question rather is whether the trial attorney’s strategic decision to get Petitioner’s
version of the events before the jury by allowing the statement to be admitted was
within the range of strategic decisions made by competent counsel and whether the
Third District’s decision that it was within that range is a reasonable application of
2 The contents of the recording were not hearsay. Statements by an opposing
party are excluded from the definition of hearsay by Ohio R. Evid. 801.
Strickland v. Washington, 466 U.S. 668 (1984). The Court finds it was. Only two
people were present at the shooting and the victim was dead. One way to get
Petitioner’s story before the jury would have been to have her testify, but virtually
all defense attorneys prefer alternatives to having defendants take the stand.
Particularly here, where Petitioner gave officers inconsistent accounts of what
happened, vigorous and effective cross-examination would have been expected. The
Court therefore defers to the Third District; its decision on this question is a
reasonable application of Strickland.
III. GROUND TWO: VIOLATION OF FIFTH AMENDMENT BY
ADMITTING THE RECORDING
In her Second Ground for Relief, Petitioner argues it was plain error to admit
her recorded statement. The Report recommends that the Court defer to the Third
District’s decision rejecting this claim because the defense stipulated to admission
of the recording. (R&R, PageID # 3099.)
Petitioner objects that admitting this recording and then not letting her
testify violated her rights under the Confrontation Clause to confront herself, i.e.,
her statements made in the recording. The Confrontation Clause protects the right
to confront adverse witnesses and is not applicable to explaining one’s own prior
statements to a jury. Petitioner did have the right to testify in her own behalf, but
did not bring her desire to testify to Judge Goslee’s attention.
The Third District was correct that Attorney McFall had the authority to
waive the Fifth Amendment violation and did so. The Report correctly recommends
deference to the Third District on this issue.
IV. GROUND THREE: INEFFECTIVE ASSISTANCE OF COUNSEL FOR
FAILURE TO CHALLENGE STATEMENTS RECORDED IN THE
POLICE CAR
In her Third Ground for Relief, Petitioner asserts she received ineffective
assistance of trial counsel when her trial attorney failed to move to suppress the
audio recordings of statements she made while waiting in the rear of a police car for
police to finish their initial inspection of the murder scene.
The Third District denied this claim on the merits, finding no basis on which
the recordings could have been suppressed. The Report recommends deferral to the
Third District. (R&R, PageID # 3102.)
Petitioner objects that she has shown from the record that Deputy Dixon was
lying about the heat in the cruiser. (Objs., PageID # 3190.) Credibility, however, is
for the trier of fact to decide. Rather than suggest how her recorded speech which
was not in response to interrogation would have violated the Fourth or Fifth
Amendment, Petitioner contends it was cruel and unusual punishment to hold her
in custody for an hour and thirty-seven minutes. (Id.) Even assuming the truth of
her testimony about being subjected to very cold conditions, the conditions
themselves did not force her to curse (which she says is out of character) or to make
incriminating statements. As the Third District and Magistrate Judge held, it is
difficult to see how counsel could have suppressed this recording.
Petitioner claims she had a right to be alone in the rear of a police cruiser
and the deputy’s recording of her statements violated her right of privacy. (Id. at
PageID # 3192.) She claims the recording was unauthorized without approval from
the Attorney General, citing 18 U.S.C. § 2518. That is the statute governing
wiretaps. Here there was no interception of a wire or electronic communication
between Petitioner and any other person.
The Report correctly recommends deferral to the Third District on this
Ground for Relief.
V. GROUND FOUR: FAILURE TO INSTRUCT ON NEGLIGENT
HOMICIDE
In her Fourth Ground for Relief, Petitioner asserts the trial court violated her
right to present a complete defense by refusing to instruct the jury on the lesser-
included offense of negligent homicide. The Third District decided both that
negligent homicide is not a lesser included offense of murder under Ohio law and
the facts did not support an instruction on negligent homicide.
The Report recommends dismissal on the merits because failure to give a
lesser-included instruction in a non-capital case is not a violation of the
Constitution. (R&R, PageID # 3103–04.) The Report further recommends this claim
be dismissed as non-cognizable in habeas corpus and “[a]lternatively, it should be
dismissed on the merits because the right to present a complete defense does not
include getting a jury instruction that the evidence does not justify.” (Id. at PageID
# 3104.)
Petitioner objects that “it is every person’s right [when charged with murder]
to have the jury vote on negligent homicide also.” (Objs., PageID # 3193.) This
Court is bound, however, by the Third District’s conclusion that negligent homicide
is not a lesser included offense of murder. Bradshaw v. Richey, 546 U.S. 74 (2005).
Incidentally, Petitioner cites no Ohio case law to the contrary.
Petitioner objects to the Third District’s reliance on Judge Goslee’s finding
that there might be negligence with one shot fired, but not with three. (Objs.,
PageID # 3194.) Her objection, however, is based on his asserted disqualification
and not on any record evidence that it was fewer than three shots fired.
The Court agrees with the Magistrate Judge that this claim is not cognizable
in habeas corpus.
VI. GROUND FIVE: DENIAL OF COMPLETE DEFENSE BY
PRECLUDING OFFER TO TAKE A POLYGRAPH TEST
In her Fifth Ground for Relief, Petitioner asserts her right to present a
complete defense was violated when the trial court excluded her offer to take a
polygraph examination. The Report recommended this claim be dismissed as non-
cognizable in habeas or, in the alternative, without merit as a complete defense
argument. (R&R, PageID # 3106.) Petitioner makes no objection.
VII. GROUND SIX: CONVICTION ON INSUFFICIENT EVIDENCE
In her Sixth Ground for Relief, Petitioner asserts she was convicted on
insufficient evidence. The Third District recited the evidence at length and,
applying the correct federal standard as enunciated in Jackson v. Virginia, 443 U.S.
307 (1979), found that it was sufficient. (R&R, PageID # 3106–11.) The Report
recommended deference to this decision both on the facts and the law. (Id. at
PageID # 3113–14.)
In her Objections, Petitioner reargues the weight of the evidence. (Objs.,
PageID # 3195–97.) She then reargues her claim that the cruiser recordings should
have been excluded. (Id. at PageID # 3197–98.) She then inserts a claim that the
State’s withholding of the victim’s confession in the twenty-year-old domestic
violence case violated Brady v. Maryland, 373 U.S. 83 (1963).
The Report correctly recommended that the Court defer to the Third
District’s decision on the sufficiency of the evidence claim as an objectively
reasonable application of Jackson.
VIII. GROUND SEVEN: CONVICTION AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE
In her Seventh Ground for Relief, Petitioner asserts her conviction is against
the manifest weight of the evidence presented. The Report recommended
dismissing this claim for failure to state a claim cognizable in habeas. Petitioner
combines her objections on Grounds Six and Seven and does not respond to this
non-cognizability point.
IX. GROUND EIGHT: FAILURE TO DISCLOSE FAVORABLE EVIDENCE
AND UNCONSTITUTIONAL SEIZURE OF EVIDENCE
In her Eighth Ground for Relief, Petitioner asserts that the failure to disclose
prior to trial that Deputy Dixon recorded her statements made in the back of his
cruiser on a personal recording device violated her Fifth and Fourteenth
Amendment rights. Further, she asserts, using personal equipment was so far
outside the policies of the Logan County Sheriff’s Department that it violated
her Fourth Amendment right to privacy.
Respondent claimed this Ground for Relief should be dismissed as
procedurally defaulted. After considering at length Petitioner’s asserted excuses,
the Magistrate Judge recommended dismissal on that basis. (R&R, PageID # 3122.)
Petitioner objects that the procedural default is excused by evidence she does
not identify but that she alleged received from Respondent on December 29, 2020.
(Objs., PageID # 3201.) The Court assumes this is part of the State Court Record,
which was served on her at that time, but because she does not identify the
evidence to which she refers, the Court cannot evaluate her argument.
The Magistrate Judge found that the fact Deputy Dixon was using a
personally owned recording device was revealed on the record at trial and was
therefore available for direct appeal. That finding is correct. Whatever additional
(yet undescribed) evidence Petitioner now has that attacks the admissibility of the
recording was not presented in post-conviction. The Court therefore agrees that
Ground Eight is procedurally defaulted.
X. GROUND NINE: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
BY DENIAL OF THE RIGHT TO TESTIFY IN HER OWN DEFENSE
In her Ninth Ground for Relief, Petitioner claims her defense lawyer
prevented her from testifying at trial. However, in her supporting facts, she admits
that this was a matter of trial strategy with her lawyer advising her strongly not to
expect to testify and in fact not to talk about her version of events with others who
might “snitch” on her.
The Report recommends this claim be dismissed as procedurally defaulted
because it was never fairly presented to the Ohio courts. (R&R, PageID # 3123.) In
her Objections, Petitioner again claims that all the other trial actors conspired to
keep her off the stand so she would not reveal the victim’s confession in the twenty-
year-old domestic violence case. She claims this would have caused the news media
to have a “field day” and would have ruined Judge Goslee’s new judicial career.
(Objs., PageID # 3203.) This does not speak at all to the finding of procedural
default, which the Court adopts.
XI. GROUND TEN: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL:
FAILURE TO PRESENT PHOTOGRAPHS
In her Tenth Ground for Relief, Petitioner asserts her trial attorney provided
ineffective assistance when she “failed to submit as evidence photos from the Logan
County Sheriff Department showing petitioner’s badly bruised wrists and forearms
and bruising on her back” as well as testimony from jail staff as witnesses to her
difficulty speaking and swallowing during the four or five days she was incarcerated
there, a recording showing how hoarse Petitioner was in the aftermath of the
shootings, and evidence of the broken ribs she believed that she had.
The Magistrate Judge found this claim was based on evidence which was not
in the appeal record. Because it was not presented in Petitioner’s post-conviction
petition, it is barred by res judicata. (R&R, PageID # 3126.)
Petitioner’s Objections merely repeat her theory that all the other trial actors
conspired to keep out evidence from the old domestic violence case. This does not
refute the Magistrate Judge’s procedural default conclusion because this assertedly
new evidence has never been presented to the Ohio courts in a collateral attack on
the judgment here.
XII. GROUND ELEVEN: INEFFECTIVE ASSISTANCE OF COUNSEL FOR
FAILURE TO SUBPOENA EVIDENCE
Petitioner makes no objection to the Report’s recommendation that this claim
should be dismissed as procedurally defaulted.
XIII. GROUND TWELVE: INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL: FAILURE TO SUBPOENA CHARACTER WITNESSES
In her Twelfth Ground for Relief, Petitioner asserts Attorney McFall provided
ineffective assistance of trial counsel when she failed to subpoena character
witnesses. The Report found this claim was procedurally defaulted because it was
not presented in post-conviction. (R&R, PageID # 3127.)
In fact, the Report noted that Petitioner offered no excuse for not presenting
these witnesses in post-conviction. In her Objections, Petitioner now claims she
“raised a lot of issues for post-conviction attorney to present to present to the courts,
[but] he failed to raise them. . . . The Martinez/Trevino rule should apply.” (Objs.,
PageID # 3206.) Because Petitioner never made a Martinez/Trevino claim before
the Magistrate Judge, the Court could properly disregard it now, but will consider it
in the interest of completeness.
There is no constitutional right to counsel in state post-conviction
proceedings. However, in Martinez v. Ryan, 566 U.S. 1 (2012), the Court held:
[W]hen a State requires a prisoner to raise an ineffective-assistance-of-
trial-counsel claim in a collateral proceeding, a prisoner may establish
cause for a default of an ineffective-assistance claim in two
circumstances. The first is where the state courts did not appoint
counsel in the initial-review collateral proceeding for a claim of
ineffective assistance at trial. The second is where appointed counsel in
the initial-review collateral proceeding, where the claim should have
been raised, was ineffective under the standards of Strickland v.
Washington, 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To
overcome the default, a prisoner must also demonstrate that the
underlying ineffective-assistance-of-trial-counsel claim is a substantial
one, which is to say that the prisoner must demonstrate that the claim
has some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322, 123 S. Ct. 1029,
154 L. Ed. 2d 931 (2003) (describing standards for certificates of
appealability to issue).
132 S. Ct. at 1318–19. In Trevino v. Thaler, 569 U.S. 413 (2013), the Court
extended Martinez to the Texas system and in White v. Warden, Ross Corr. Inst.,
940 F.3d 270 (6th Cir. 2019), the Sixth Circuit held the Martinez/Trevino exception
applies in Ohio where the ineffective assistance of trial counsel claim could not be
properly raised on direct appeal for lack of a sufficient record. Because the
character witness testimony was not in the appellate record, this particular
ineffective assistance of trial counsel claim had to be raised in post-conviction.
Petitioner offers absolutely no proof of what she told her post-conviction
attorney, relying instead on a vague claim that she raised “lots of issues.” Thus, she
has not shown her post-conviction attorney, Assistant State Public Defender
Stephen Hardwick, performed incompetently to the level required by Strickland, a
prerequisite to application of Martinez/Trevino.
As to whether the underlying claim of ineffective assistance of trial counsel
was substantial, another requirement of Martinez/Trevino, Petitioner claims her
trial attorney only talked with one neighbor, who was not called to testify, and there
was a long list of people who were prepared to testify on her behalf but were never
called. (Objs., PageID # 3206.) Who were these people and what were they prepared
to testify to? As the Report notes, Petitioner provides no answer to these critical
questions. (R&R, PageID # 3127.) As to why these witnesses were not called,
Petitioner falls back on her conspiracy theory. (Objs., PageID # 3206.)
The Court concludes that Petitioner’s Martinez/Trevino claim fails for lack of
proof. The Court therefore accepts the Magistrate Judge’s conclusion that Ground
Twelve is barred by procedural default.
XIV. GROUND THIRTEEN: DENIAL OF COUNSEL OF CHOICE
In her Thirteenth Ground for Relief, Petitioner claims she was denied
representation by her counsel of choice, Sarah Schregardus, who was forced by co-
counsel Tina McFall to withdraw. The Report concluded this claim was
procedurally defaulted because it was available to argue on direct appeal, but was
not. (R&R, PageID # 3128.)
Petitioner objects that Attorney Schregardus was forced out to prevent her
from bringing up the old domestic violence case and moving to disqualify Judge
Goslee, again arguing a conspiracy among all the other trial actors.
This does not explain why the issue was not raised on direct appeal when
Petitioner had a new attorney. The Magistrate Judge’s recommendation to dismiss
this claim as procedurally defaulted is therefore adopted.
XV. GROUND FOURTEEN: INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL: FAILURE TO CALL PSYCHIATRIC EXPERT
In her Fourteenth Ground for Relief, Petitioner claims she received
ineffective assistance of trial counsel when Attorney McFall failed to call or even
hire an expert to explain “the psychiatric and trauma aspects of petitioner on the
night in question.” The Report recommended Ground Fourteen be dismissed as
procedurally defaulted because it had not been raised either on direct appeal or in
post-conviction. (R&R, PageID # 3129.) The Report also recommended dismissal on
the merits because Petitioner’s hypothesis about what a psychiatrist would have
said is completely speculative. (Id.)
In her Objections, Petitioner again raises the Martinez/Trevino exception,
which is unavailing for the reasons given above as to Ground Twelve. Her response
on the merits provides nothing more than further speculation.
XVI. GROUND FIFTEEN: SEARCH WITHOUT A WARRANT
In her Fifteenth Ground for Relief, Petitioner claims her Fourth and
Fourteenth Amendment rights were violated when Sheriff’s Deputies took
photographs inside her home on the night of Gary Kennedy’s death.3
The Report recommended that the Fifteenth Ground for Relief be dismissed
as not cognizable in habeas corpus on the basis of Stone v. Powell, 428 U.S. 465
(1976). (R&R, PageID # 3130.) The Warden relied on Stone in the Return and
Petitioner made no response to that authority.
In her Objections, Petitioner again makes no response to Stone. Instead, she
attempts to re-cast this claim as one for ineffective assistance of trial counsel for not
moving to suppress the photographs. (Objs., PageID # 3209.) A habeas corpus
petitioner cannot litigate a claim in one form, then completely change it when
objecting to a report and recommendations.
The Court concludes Ground Fifteen as pleaded is barred by Stone.
3 Although the Magistrate Judge did not discuss the merits of this claim, the
deputies’ entry into the home was in response to Petitioner’s call about her husband
being shot. Once they found what appeared to be a homicide scene, preservation of
evidence justified their taking photographs.
XVII. GROUND SIXTEEN: INEFFECTIVE ASSISTANCE OF COUNSEL:
FAILURE TO REVEAL POTENTIAL CONFLICT OF INTEREST
In her Sixteenth Ground for Relief, Petitioner complains that one of her trial
attorneys, Marc Triplett, did not tell her until “just days” before her trial began that
he had represented her husband in the domestic violence misdemeanor case twenty
years before. Respondent asserted this claim is procedurally defaulted because it
was never presented to the Ohio courts. The Magistrate Judge agreed. (R&R,
PageID # 3131.)
In her Objections, Petitioner repeats her conspiracy accusations. (Objs.,
PageID # 3210.) They remain unpersuasive.
XVIII. GROUND SEVENTEEN: FAILURE TO DISCLOSE
EXCULPATORY DNA TEST RESULTS
In her Seventeenth Ground for Relief, Petitioner claimed that DNA testing of
the murder weapon revealed it had been handled by someone else. In her Reply,
however, she admitted that there was no such test result. She attempted to change
her Seventeenth Ground to ineffective assistance of trial counsel for not obtaining
fingerprints from the murder weapon. The Report recommended rejecting the
original claim as procedurally defaulted and against allowing the amendment.
(R&R, PageID # 3132.) Petitioner makes no objection.
XIX. GROUND EIGHTEEN: INEFFECTIVE ASSISTANCE OF POST-
CONVICTION COUNSEL
The Report recommended dismissal of this claim as non-cognizable because
Martinez/Trevino does not recognize a constitutional right to effective assistance of
counsel in post-conviction. Petitioner makes no objection.
XX. GROUND NINETEEN: FAILURE TO INSTRUCT ON LESSER
INCLUDED OFFENSES
In her Nineteenth Ground for Relief, Petitioner claims the trial court’s failure
to instruct on the lesser-included offenses of involuntary manslaughter and reckless
homicide violated her Sixth and Fourteenth Amendment rights. The Report
recommended dismissing this claim as procedurally defaulted because it was never
presented to the Ohio courts, and also as non-cognizable since there is no
constitutional right to a lesser-included offense instruction. (R&R, PageID # 3134–
35.)
In her Objections, Petitioner relies on Brewer v. Overberg, 624 F.2d 51 (6th
Cir. 1980), for the proposition that failure to instruct on a lesser-included offense is
a cognizable claim in habeas. Brewer does stand for that proposition. Much more
recently, the Sixth Circuit noted that the Supreme Court has never held that a
lesser-included offense instruction is required in non-capital cases. McMullan v.
Booker, 761 F.3d 662, 667 (6th Cir. 2014).
Even assuming cognizability, Petitioner has offered no proof that either of
her two proffered lesser-included offenses count as lesser included offenses under
Ohio law. Nor has she excused her failure to raise this claim on direct appeal.
XXI. GROUND TWENTY: JUDICIAL BIAS
In her Twentieth Ground for Relief, Petitioner claims her conviction should
be set aside because the trial judge, William Goslee, was prejudiced against her.
She sets forth the multiple bases of these claims in Grounds Twenty A through
Twenty I. The Report recommended denying this claim because Petitioner made no
request for disqualification, either by motion to Judge Goslee himself or by request
to Chief Justice O’Conner, before trial. (R&R, PageID # 3139.)
Petitioner’s objection seems to be that the victim’s commission of domestic
violence against her twenty years before was key to her battered woman defense
and Judge Goslee had a duty to bring that evidence forward. She claims that when
a judge conceals evidence that could have exonerated her from murder, that shows
extreme prejudice.
Judge Goslee did not “conceal” the fact that Gary Kennedy committed
domestic violence on Rosalie Kennedy. The Petitioner knew of the prior case and
was competent to testify to its facts, as well as of any incidents of domestic violence
that had occurred at any time during the marriage. A trial judge has no duty to
investigate either side of a case over which he or she is presiding; that duty falls on
the attorneys for each side.
The record establishes that it was the defense that moved to exclude
documents from the old cases. (Motion in Limine, State Court Record, ECF No. 20,
PageID # 681–85.) Petitioner attempts to turn this on its head by claiming her trial
attorney, Tina McFall, was part of the conspiracy to get her convicted. Again, this
is speculative at best.
The balance of Petitioner’s sub-claims under Ground Twenty argue that
Judge Goslee was disqualified because of various errors he allegedly made. The
remedy for judicial error is appeal, not retrospective disqualification. As the Report
correctly found (R&R, PageID # 3142), each of the sub-claims was procedurally
defaulted by failure to object and also fails on the merits because it does not provide
a valid basis for disqualification even if it had been objected to.
XXII. GROUND TWENTY-ONE: FAILURE TO EXCUSE A BIASED
JUROR
In her Twenty-First Ground for Relief, Petitioner claims she is entitled to
habeas corpus relief because Judge Goslee did not excuse a biased juror, Mr. Sita.
The Report recommended dismissing this claim because it is procedurally defaulted:
after the trial judge’s examination of Mr. Sita, defense counsel withdrew their
objection. (R&R, PageID # 3142–43.)
Petitioner objects that her attorneys did not object to Mr. Sita because they
were involved in the conspiracy to get her convicted. The undersigned has already
said enough to reject that claim.
XXIII. CONCLUSION
Having considered the Magistrate Judge’s Report and Recommendation de
novo in light of Petitioner’s Objections, the Court ADOPTS the Report and
Recommendation (ECF No. 37) and OVERRULES (ECF No. 52) Petitioner’s
Objections. The Clerk will enter judgment dismissing the Amended Petition with
prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner is denied a certificate of appealability and the Court certifies to the Sixth
Circuit that any appeal would be objectively frivolous and should not be permitted
to proceed in forma pauperis.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE