Were v. Warden Ohio State Penitentiary

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES WERE

N.K.A. NAMIR ABDUL MATEEN,

Petitioner, Case No. 1:10-cv-698

V. Judge Michael H. Watson

DAVID BOBBY, Warden, Magistrate Judge Deavers

Respondent.

OPINION AND ORDER

Petitioner, a prisoner sentenced to death by the State of Ohio, has pending

before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This

matter is before the Court on Petitioner's motion to stay these proceedings and

hold them in abeyance to permit him to return to state court for the second time.

Petitioner contends that recent developments in Ohio case law have now

rendered some of his habeas claims unexhausted, his petition is now “mixed,”

and he must return to state court to exhaust his state court remedies. ECF No.

182. Respondent opposes the motion. ECF No. 185. Petitioner has filed a

Reply, ECF No. 186, and notices of additional authority. ECF Nos. 187, 189,

1490. Respondent replied to Petitioner’s notices of additional authority. ECF Nos.

188, 191. For the foregoing reasons, the Court DENIES Petitioner's motion.

I. PROCEDURAL HISTORY

On November 17, 1995, following a jury trial, Petitioner was sentenced to

death in Hamilton County, Ohio, for the aggravated murder of Corrections Officer

Robert Vallandingham, which occurred during the 1993 prison riot at the

Southern Ohio Correctional Facility in Lucasville, Ohio. On February 6, 2002, the

Supreme Court of Ohio reversed Petitioner’s convictions, finding that the trial

court violated Petitioner’s statutory and constitutional right to a competency

hearing. State v. Were, 94 Ohio St. 3d. 173, 761 N.E.2d 591 (2002). A new trial

began on June 6, 2003, and Petitioner was again sentenced to death for the

aggravated murder of Officer Vallandingham.

On September 30, 2005, while his direct appeal was pending, Petitioner

filed a postconviction action. The trial court granted the State’s motion to

dismiss. On September 2, 2009, the Court of Appeals for the First Appellate

District affirmed the decision of the trial court, and the Supreme Court of Ohio

declined to exercise jurisdiction over the matter. State v. Were, No. C-080697,

2009 WL 2768021 (Ohio App. 1st Dist., Sept. 2, 2009).

On October 8, 2010, Petitioner initiated the instant habeas proceedings.

ECF Nos. 1, 2. Petitioner filed his Petition on January 21, 2011, an Amended

Petition on February 23, 2011, a Second Amended Petition on April 15, 2013,

and a Third Amended Petition on November 18, 2014. ECF Nos. 23, 28, 67, 87,

92.

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Meanwhile, on February 13, 2008—prior to the filing of the instant habeas

case—Petitioner obtained leave to intervene in a related Lucasville Riot death

penalty habeas corpus case—Robb v. Ishee, Case No. 2:02-cv-535 (S.D.

Ohio)}—for the limited purpose of conducting discovery. Robb, Order, ECF No.

104.

On December 1, 2014, Petitioner filed his first motion to stay and hold

these proceedings in abeyance. ECF No. 90. Petitioner argued that he should

be allowed to return to state court to exhaust his second, third, tenth, and twenty-

first grounds for relief because additional supporting facts for these claims were

identified during the discovery process in this matter and in Robb v. Ishee, Case

No. 2:02-cv-535 (S.D. Ohio). On September 23, 2015, the Court granted

Petitioner's motion over Respondent's objection, finding that the factors set forth

in Rhines v. Weber, 554 U.S. 269 (2005), for a stay and abeyance were met.

ECF No. 108.

Petitioner returned to state court in a successive postconviction petition

filed in the Hamilton County Court of Common Pleas. ECF No. 175-1 at PAGEID

Ht 23894-24057; ECF No. 175-7 at PAGEID ## 27616-809. Petitioner asserted

allegations identical to those in his federal Third Amended Petition, including

prosecutorial misconduct (the second, third, and tenth grounds for relief in the

federal petition) and ineffective assistance of counsel (the twenty-first ground for

relief in the federal petition). ECF No. 92 at PAGEID ## 2726-30; 2731-77;

2812-26: 2888-2906. The Hamilton County Court of Common Pleas granted the

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State’s motion for summary judgment on December 29, 2016, dismissing

Petitioner's successive petition for failing to meet the jurisdictional requirements

of Ohio Revised Code § 2953.23. ECF No. 175-9 at PAGEID ## 29249-50. On

June 27, 2018, the Court of Appeals for the First Appellate District of Ohio

affirmed the dismissal. ECF 175-10 at PAGEID ## 29610-18. The appellate

court found that the dismissal was appropriate because Petitioner's claims could

not satisfy Ohio Revised Code § 2953.23 (A)(1)(b), which requires an outcome-

determinative constitutional violation. /d. at PAGEID # 29614. The appellate

court elaborated that the Supreme Court of Ohio, when rejecting Petitioner's

sufficiency of the evidence claim on direct appeal, characterized the evidence of

guilt at trial as “extensive.” /d. at PAGEID # 29615. The Supreme Court of Ohio

declined to accept jurisdiction over Petitioner's appeal on December 12, 2018.

ECF No. 175-10 at PAGEID # 30121. The United States Supreme Court

subsequently denied certiorari. ECF No. 151.

Petitioner resumed his federal habeas proceedings in January of 2019 by

seeking reinstatement of the case to the active docket. ECF No. 143. The

motion was granted, ECF No. 144, and a new Scheduling Order was entered on

November 12, 2020. ECF No. 163. One of the items in the new Scheduling

Order was a deadline for Petitioner to file an amended petition. On May 26,

2022, Petitioner moved for an extension of time to file his amended petition, ECF

No. 180, and the instant motion for a stay and abeyance. ECF No. 182.

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Petitioner's motions were prompted by the Supreme Court of Ohio’s March

22, 2022 opinion in a capital postconviction case, State v. Bethel, 167 Ohio St.

3d 362 (2022). Petitioner contends that the Bethel opinion renders the

prosecutorial misconduct claims in his Third Amended Complaint unexhausted

because of its expansive interpretation of Ohio Revised Code § 2953.53(A)(1)

and Criminal Rule 33. He further seeks authorization for his counsel to appear in

state court on his behalf. ECF No. 182. Respondent opposes a stay, arguing it

would be futile because Petitioner cannot meet the jurisdictional requirements for

a successive petition under the Bethe! standard. ECF No. 185 at PAGEID

## 30276-78.

ll. ANALYSIS

A. State v. Bethel

In State v. Bethel, the Supreme Court of Ohio examined the application of

Ohio’s jurisdictional statute for successive postconviction petitions, Ohio Revised

Code § 2953.23 (A)(1), and the statute governing motions for a new trial,

Criminal Rule 33, with respect to claims brought pursuant to Brady v. Maryland,

373 U.S. 83 (1963). In 2005, Robert Bethel was convicted in Franklin County of

two counts of capital murder for the deaths of James Reynolds and Shannon

Hawks. Bethel, 167 Ohio St. 3d. at 363. Bethel’s direct appeal and first

postconviction petition were denied. /d. at 363-64. In 2018, Bethel filed a

successive postconviction petition and a motion for leave to file a motion for a

new trial, relying on law enforcement reports allegedly suppressed by the

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prosecution, which indicated that a third person admitted to the murders. /d. at

365-66. The trial court denied Bethel’s motion for a new trial as untimely under

Criminal Rule 33 and his successive postconviction petition for failing to comply

with the requirements of Ohio Revised Code § 2953.23(A)(1). The court of

appeals affirmed. /d. at 366.

The Supreme Court of Ohio found that the lower courts had incorrectly

interpreted Ohio Revised Code § 2953.23(A)(1) and Criminal Rule 33. Ohio

Revised Code § 2953.23(A)(1) conditions trial court jurisdiction over untimely or

successive postconviction petitions on a petitioner’s showing: (a) that he was

“unavoidably prevented from discovery of the facts” underlying his claim, and

(b) that no reasonable factfinder would have found him guilty or eligible for a

death sentence but for the constitutional error at trial. The Supreme Court of

Ohio found in Bethe! that, to meet the “unavoidably prevented” jurisdictional

requirement of Ohio Revised Code § 2953.23(A)(1)(a), the petitioner need only

show that the claim was based on information suppressed by the prosecution.

Id. at 367-68. The Supreme Court of Ohio concluded that the trial court erred

when it imposed a diligence standard on Bethel that was inconsistent with Brady.

The Supreme Court of Ohio also found that the second jurisdictional

requirement, Ohio Revised Code § 2953.23(A)(1)(b), “goes to the heart of

Brady’s third prong, which requires [the petitioner] to show that there is a

reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.” /d. at 369-70 (internal

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quotations marks and citation omitted). Bethel was not required to show that the

evidence would have resulted in acquittal; only that it would have undermined the

confidence in the outcome of his trial. /d. at 370. The Supreme Court of Ohio

determined that Bethel could not meet this standard because the evidence he

relied upon was inadmissible double hearsay that would not have undermined

the verdict, especially considering the questionable nature of the statement

involved and Bethel’s detailed confession. /d. at 372.

Next, the Supreme Court of Ohio found that the lower courts erred in

imposing a requirement on Criminal Rule 33 that is not included in the statute.

The trial court denied Bethel’s motion for leave to file a motion for a new trial

because of “unreasonable delay” between the time of discovery of the supporting

evidence and the time he filed the motion. The Supreme Court of Ohio ruled that

the lower courts improperly created a non-existent deadline for motions for a new

trial. /d. 376-77. Even though the trial court improperly denied Bethel’s

motion for leave to file a new trial, the Supreme Court of Ohio found the error

was harmless because Bethel’s Brady claim would not have ultimately

succeeded. /d. at 377.

The Supreme Court of Ohio found that Ohio Revised Code § 2953.23 set

the jurisdictional bar so high that certain meritorious Brady claims would never be

heard through Ohio’s postconviction process. To remedy this problem, Bethe/

concluded that Ohio Revised Code § 2953.23(A)(1) should be interpreted

coextensively with Brady.

Case No. 1:10-cv-698 Page 7 of 16

B. Bethel’s Applicability to Petitioner’s Claims

Nearly four years before the Supreme Court of Ohio decided Bethel, the

First District Court of Appeals held that jurisdiction was lacking over Petitioner's

successive postconviction claims based on his inability to satisfy the “outcome-

determinative” prong of Ohio Revised Code § 2953.23(A)(1)(b):

The Supreme Court also rejected challenges on direct appeal to the

sufficiency of the evidence to support Were’s convictions and to

defense counsel's effectiveness in cross-examining state’s witnesses

and in presenting Were’s case during both the guilt and penalty

phases of the trial. The court characterized as “extensive” the

evidence adduced at trial showing that Were had kidnapped the

corrections officer, and as “ample” the evidence of his guilt of

aggravated murder. That evidence consisted of testimony by fellow

inmates who had witnessed the offenses, testimony by others to

whom Were had later made incriminating statements, and recordings

of inmate conversations picked up by listening devices placed by law

enforcement in tunnels under the prison. And while the defense

sought to impeach the credibility of the inmates with cross-

examination concerning favorable treatment offered and/or received

by the inmates in exchange for their testimony, the “tunnel tapes”

revealed self-incriminating statements by Were and substantially

corroborated the testimony of the witnesses to his offenses.

Thus, Were’s intellectual-disability, prosecutorial-misconduct, and

ineffective-counsel claims, when considered with the files and records

of the case cannot be said to demonstrate by clear and convincing

evidence that, but for the constitutional errors alleged in those claims,

no reasonable factfinder would have found him guilty of aggravated

murder or kidnapping or eligible for the death sentence. Because with

respect to those claims, Were did not satisfy the RC. 2953.23(A)(1)(b)

jurisdictional requirement, the common pleas court had no jurisdiction

to entertain them.

ECF 175-10 at PAGEID ## 29615-16. As the later Bethel decision recognized,

the appropriate analysis under the third prong of Brady is not sufficiency of the

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evidence, but rather whether the suppressed evidence undermines the

confidence in the outcome of the trial. Bethel, 167 Ohio St. 3d at 370.

Petitioner argues that Bethe/ has now “significantly expanded the

procedural remedy” available to him. ECF No. 182 at PAGEID # 30243.

Specifically, Petitioner contends that Bethel eliminated the “reasonable time”

requirement for him to file a motion for a new trial. He also contends that,

according to Bethel, the Ohio state courts incorrectly applied Ohio Revised Code

§ 2953.23(A)(1) to decline jurisdiction over his successive postconviction claims.

Id. at PAGEID ## 3024344. Petitioner admits that he failed to file a motion for a

new trial but claims that Bethel’s interpretation of Criminal Rule 33 has now

provided him with the ability. ECF No. 186 at PAGEID ## 30281—82. For these

reasons, Petitioner argues he should be allowed to return to state court to

exhaust his Brady and other prosecutorial misconduct claims (Grounds Two,

Three, and Ten in the Third Amended Complaint, ECF No. 92).

C. Stay Order is Inappropriate

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA’),

which governs federal habeas corpus petitions, requires that state prisoners

exhaust all federal claims before those claims may be reviewed by district courts

on habeas review. 28 U.S.C. § 2254(b)(1). The exhaustion requirement is

satisfied once the petitioner has fairly presented all his claims to the highest court

in the state in which he was convicted, thus giving the state a full and fair

opportunity to rule on those claims before the petitioner seeks relief in federal

Case No. 1:10-cv-698 Page 9 of 16

court. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This can be done by

invoking one full round of the state’s established procedures. /d. at 845.

Under Ohio law, a claim must be presented on direct appeal if all the facts

necessary to develop the claim were evident from the trial record. Otherwise, the

claim will be barred by res judicata. See Durr v. Mitchell, 487 F.3d 423, 432 (6th

Cir. 2007). Claims based on evidence wholly within the trial record must be

brought on direct appeal, while claims based on evidence outside the trial record

cannot be brought on direct review and must be raised in a petition for state post-

conviction relief. Hill v. Mitchell, 842 F.3d 910, 936 (6th Cir. 2016).

Federal district courts may not adjudicate a mixed habeas petition that

contains both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509,

518-19 (1982) (finding that comity requires that state courts have the first

opportunity to review unexhausted claims). District courts have the discretion,

however, to stay habeas proceedings and hold them in abeyance to allow a

petitioner with a mixed petition to return to state court to exhaust his unexhausted

claims. Rhines v. Weber, 544 U.S. 269, 275-76 (2005). A stay is appropriate

only when the unexhausted claims are not plainly meritless, and the petitioner

has shown good cause for his failure to exhaust the claims earlier. /d. at 277.

Stay-and-abeyance is available only in limited circumstances at the discretion of

the district court and must be conditioned on time limits so as not to undermine

the AEDPA’s objectives of streamlining habeas proceedings and encouraging

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finality. /d. at 276-78. Thus, a stay is inappropriate “if a petitioner engages in

abusive litigation tactics or intentional delay.” /d. at 278.

Here, the Court stayed these proceedings to permit Petitioner to return to

state court to litigate a successive postconviction petition asserting claims

developed during the discovery authorized as part of these habeas corpus

proceedings. The Ohio Court of Appeals did not reach the merits of those

claims. Instead, that court determined that Petitioner’s claims did not meet the

gatekeeping requirements of Ohio Revised Code § 2953.23(A)(1).

The allegations forming the basis of Petitioner's second, third, and tenth

claims for relief in his Third Amended Petition, ECF 92, are nearly identical to the

allegations raised in his successive state postconviction petition. It is evident

from a comparison of the claims that Petitioner presented both the factual and

legal basis of his second, third, and tenth claims for relief to the state courts

through postconviction procedure while these federal proceedings were stayed.

Petitioner has never filed a motion for a new trial under Criminal Rule 33.

However, a motion for a new trial is outside of Ohio’s ordinary appellate

procedures and thus is not a required procedure to exhaust a constitutional claim

before it can be raised in a federal habeas corpus petition. See Carter v.

Mitchell, 693 F.3d 555, 564 (6th Cir. 2012) (once a federal claim has been fairly

presented at the first possible opportunity within one complete round of the

State’s established appellate review process, the claim has been exhausted).

Case No. 1:10-cv-698 Page 11 of 16

Petitioner is not required to repetitively assert his federal claims in a motion for a

new trial to satisfy the exhaustion requirement:

Although [the language of § 2254] could be read to effectively

foreclose habeas review by requiring a state prisoner to invoke any

possible avenue of state court review, we have never interpreted the

exhaustion requirement in such a restrictive fashion. See Wilwording

v. Swenson, 404 U.S. 249, 249-250 (1971) (per curiam). Thus, we

have not interpreted the exhaustion doctrine to require prisoners to

file repetitive petitions. See Brown v. Allen, 344 U.S. 443, 447 (1953)

(holding that a prisoner does not have “to ask the state for collateral

relief, based on the same evidence and issues already decided by

direct review’). We have also held that state prisoners do not have to

invoke extraordinary remedies when those remedies are alternatives

to the standard review process and where the state courts have not

provided relief through those remedies in the past. See Wilwording v.

Swenson, supra, at 249-250 (rejecting suggestion that state prisoner

should have invoked “any of a number of possible alternatives to state

habeas including ‘a suit for injunction, a writ of prohibition, or

mandamus or a declaratory judgment in the state courts,’ or perhaps

other relief under the State Administrative Procedure Act”).

O’Sullivan, 526 U.S. 838, 844 (1999).

Exhaustion is a matter of comity and not jurisdiction. O’Guinn v. Dutton,

88 F.3d 1409, 1412 (6th Cir. 1996). The Supreme Court explained the principles

of comity underpinning the exhaustion doctrine:

Because “it would be unseemly in our dual system of government for

a federal district court to upset a state court conviction without an

opportunity to the state courts to correct a constitutional violation,”

federal courts apply the doctrine of comity, which “teaches that one

court should defer action on causes properly within its jurisdiction until

the courts of another sovereignty with concurrent powers, and already

cognizant of the litigation, have had an opportunity to pass upon the

matter.”

Coleman v. Thompson, 501 U.S. 722, 731 (1991) (internal citations omitted).

Case No. 1:10-cv-698 Page 12 of 16

As noted above, the State of Ohio was given the opportunity to examine

Petitioner's successive postconviction claims and passed on the merits by

invoking a state procedural bar. Resubmission of a claim to state courts is

unnecessary when the state courts had a full opportunity to determine the federal

constitutional issues before resort was made to a federal forum, and the policies

served by the exhaustion requirement are not furthered by requiring

resubmission of the claims to the state courts. See Francisco v. Gathright, 419

U.S. 59, 63 (1974). Comity does not compel the Court to stay this matter. The

Ohio state courts were provided with a fair opportunity to address the merits of

Petitioner’s federal claims, and considerable federal judicial resources have been

invested during Petitioner's twelve-year long federal habeas case. The Court

finds that the Bethel decision does not render Petitioner's claims unexhausted,

Petitioner's Third Amended Petition does not constitute a mixed petition, and a

stay of the proceedings is inappropriate.

D. Procedural Default

As an additional matter, the issue of exhaustion is separate from the issue

of procedural default. In the Sixth Circuit, a district court must undertake a four-

part analysis when the state argues that a federal habeas claim is waived by the

petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d

135, 138 (6th Cir. 1986). “First, the court must decide 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.” /d. Second, the court must determine whether the

Case No. 1:10-cv-698 Page 13 of 16

state courts actually enforced the state procedural sanction. /d. Third, it must be

decided whether the state procedural forfeiture is an adequate and independent

state ground upon which the state can rely to foreclose review of a federal

constitutional claim. /d. Finally, if the court has determined that a petitioner did

not comply with a state procedural rule, and that the rule was an adequate and

independent state ground, then the petitioner must demonstrate that there was

cause for him not to follow the procedural rule and that he was actually

prejudiced by the alleged constitutional error. /d.

Bethel arguably implicates the third prong of the Maupin test. The United

States Supreme Court recently reiterated that “[t]his Court will not take up a

question of federal law in a case ‘if the decision of the state court rests on a state

law ground that is independent of the federal question and adequate to support

the judgement.” Cruz v. Arizona, 598 U.S.___ (2023), 2023 WL 2144416 at *5

(Feb. 22, 2023) (quoting Lee v. Kemna, 534 U.S. 362, 375 (2002) (emphasis in

original)). After Bethel, this Court questions whether the § 2953.23(A)(1)

gatekeeping provisions governing untimely or successive postconviction petitions

are independent of federal law when applied to Brady claims. As discussed

above, the Supreme Court of Ohio recognized that lower courts have construed

the successive postconviction statute and Criminal Rule 33 inconsistently or

incorrectly as applied to Brady claims. The Supreme Court of Ohio determined

that the question of whether Bethel could satisfy the “no reasonable fact-finder”

prong of § 2953.23(A)(1)(b) “goes to the heart of Brady's third prong ....” /d.

Case No. 1:10-cv-698 Page 14 of 16

(quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)). By interpreting Ohio

Revised Code § 2953.23 coextensively with Brady, the state procedural rule

appears to rely on and be inextricably interwoven with federal law. See Ake v.

Oklahoma, 470 U.S. 68, 75 (1985) (when resolution of the state procedural law

question depends on a federal constitutional ruling, the state law prong of the

court’s holding is not independent of federal law and jurisdiction is not

precluded).

The Court notes, however, that even if the state rule of procedure is an

adequate and independent basis to enforce procedural default, this Court must

necessarily still review the merits of Petitioner's Brady claim without the

limitations imposed by 28 U.S.C. § 2254(d), to determine whether cause and

prejudice exists to excuse any default. See Strickler v. Greene, 527 U.S. 263

(1999). See also Hughbanks v. Hudson, 2 F.4th 527, 535-36 (reiterating that de

novo review of a procedurally defaulted Brady claim is necessary in order to

determine whether cause and prejudice exist to excuse the default and noting

“if Hughbanks can demonstrate a meritorious Brady violation, he will have also

made the requisite showing of cause and prejudice, allowing us to grant habeas

relief.”)

A separate briefing order will be issued on whether Petitioner's claims

remain procedurally defaulted pursuant to the independent and adequate state

ground doctrine in light of the Bethe/ decision.

Case No. 1:10-cv-698 Page 15 of 16

lll. CONCLUSION

For the foregoing reasons, the Petitioner's Motion to Stay, ECF No. 182, is

DENIED. The Court also DENIES the motion requesting authorization for his

federal habeas counsel to represent him in state court in connection with the

filing of another successive postconviction petition or a motion for leave to file a

motion for a new trial. The Clerk shall terminate ECF No. 182 as a pending

motion.

IT IS FURTHER ORDERED that the parties are to file a joint proposed

scheduling order within fourteen (14) days of the date of entry of this Order.

IT IS SO ORDERED. | eFon~

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT JUDGE

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