Bethel v. Warden Ohio State Penitentiary

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

ROBERT BETHEL,

:

Petitioner, Case No. 2:10-cv-391

: District Judge Michael R. Barrett

-vs- Magistrate Judge Michael R. Merz

DAVID BOBBY, Warden,

:

Respondent.

DECISION AND ORDER ON PRO SE MOTIONS TO WITHDRAW BRADY

CLAIM

This capital habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner

Robert Bethel’s Pro Se Motion of Waiver Re: Amended Habeas Petition Claim (ECF No. 200);

Second Motion Re: Waiver of Habeas Petition Claim (ECF No. 203); and Third Motion Re:

Waiver of Habeas Petition Claim (ECF No. 208). For the following reasons, the motions are

DENIED.

Petitioner is represented in this case by counsel from both the Capital Habeas Unit of the

Federal Public Defender’s Office for this District: Justin Thompson, who is designated as trial

attorney; Jordan Berman from the same office; and Rachel Troutman of the Death Penalty Division

of the Ohio Public Defender’s Office. Petitioner has a history of filing unsuccessful pro se motions

in this matter. (ECF Nos. 160, 161, 165, 166, 168, 175, 176).

In the motions now before the Court, Petitioner takes issue with the way his counsel pled

Claim Fifteen in his Amended Petition. Claim Fifteen seeks relief pursuant to Brady v. Maryland,

373 U.S. 83 (1963), alleging that the prosecution failed to disclose police reports to the defense.

These reports allegedly demonstrate that the state’s “star witness,” Donald Langbein, who

provided the sole proof of the specifications for capital murder, was actually the principal offender

of the crime. ECF No. 186-1 at PageID 10374-10382. Petitioner objects to, and seeks to withdraw

the following two paragraphs in Claim Fifteen (ECF No. 200):

{237} Ronald Janes, who was one of Bethel’s first set of trial

counsel, also expressed that he is “positive” that he never received

Summary 86 concerning Withers. (Janes Affidavit, ECF 124-2,

PageID 8849.) Janes was clear that he had not received this police

summary or the police report about Williams and found it “very

upsetting ... that they were never turned over” because they “are the

most helpful pieces of evidence in Bethel’s defense that I have seen

to date in the case.”(Id.) Janes stated that the suppressed reports

“shed a whole different light on this case” and would have prevented

him from “allow[ing] the plea deal and the proffer to have taken

place as they happened.” (Id. at PageID 8850.)

{247} Bethel has exhausted this Brady claim. He exhausted the

information concerning Shannon Williams in 2010. See State v.

Bethel, Ohio Ct. App. No. 09AP-924, 2010 WL 323948(Aug. 17,

2010); State v. Bethel, 974 N.E.3d 112 (Ohio 2010) (discretionary

appeal not accepted). He exhausted the remaining evidence in a

Motion for New Trial in 2018, which the Ohio Supreme Court

denied on March 22, 2022. State v. Bethel, Ohio No. 2020-0648, ---

N.E. 3d ---, 2022 WL 838337 (Mar. 22, 2022). That Court found

that the affidavits from Bethel’s

prior counsel are sufficient to “establish a prima facie claim that the

prosecution suppressed Summary 86” but that he “has not shown by

clear and convincing evidence that no reasonable fact-finder would

have found him guilty or eligible for the death sentence but for

constitutional error at trial.” Id. at *5, 7. Two judges dissented,

writing that “Bethel made an adequate showing that he may be

entitled to a new trial.” Id. at *14 (Donnelly, J., dissenting). In

particular, in light of prior counsel’s affidavits, “the suppressed

evidence might have served to

deprive the state of Bethel's confession, a confession that the

majority concedes was the most significant evidence of Bethel's

guilt at trial.” Id. at *13 (Donnelly, J., dissenting).

Id. at PageID 10379, 10382. Citing Robertson v. Lucas, 753 F.3d 606 (6th Cir. 2014), a civil rights

case addressing qualified immunity, Petitioner argues that “clearly established law” limits Brady

to a trial right only, he cannot obtain relief under the Antiterrorism and Effective Death Penalty

Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA") for a plea-bargain Brady claim,

and ¶237 and ¶247 of Claim Fifteen should be withdrawn. ECF Nos. 200 at PageID 11494; 200-

2; 202 at PageID 11515; 208 at PageID 11537.

The Court issued an Order to Show Cause on March 14, 2023, directing Petitioner’s

counsel to respond to his motion to withdraw the selected paragraphs of his Brady claim. ECF No.

202. Counsel sought and obtained permission to file their response under seal. ECF Nos. 204-206.

The sealed pleading explains counsel’s position on this issue, including their legal position that

the portions of Claim Fifteen that Petitioner seeks to strike are not a separate Brady claim, but

various arguments about how the Petitioner was prejudiced by the prosecution’s failure to disclose

the suppressed documents.

By way of relevant background, the Petitioner makes the following allegations with respect

to the events that occurred during his plea bargain that was subsequently withdrawn:

{35} Because of the lack of investigation, and pressure from his

defense team and mother, Bethel believed his only choice was to

plead guilty, or he would get a death sentence. (Tr. Vol. XIII at 68–

71.) He knew that the deal was contingent on an agreement from

him to give a statement and to testify against Chavis. (Tr. Vol. IV at

67, 69, 94.) He also knew that he would not testify against Chavis,

but was left with the impression by his attorneys that if he later

refused to testify, his statement could not be used against him unless

he testified at his own trial. (Tr. Vol. IV at 77–81, 113; Vol. XIII at

77, 81.) The plea agreement and proffer letter supported his

impression. (Def.’s Exs. 2, 3.)

{36} To prepare for the proffer, prosecutors provided Bethel with

several videotapes of State’s witnesses. (Tr. Vol. IV at 128, 174,

176–77; Vol. X at 179.) Bethel had also reviewed the coroners’

reports, pictures, witness statements, and police summaries that had

been provided to his counsel. He implicated himself and Chavis in

the murders. (Tr. Vol. III at 2.)

{37} On November 13, 2002, the trial of co-defendant Chavis began.

(Tr. Vol. III at 3.) When Bethel ultimately refused to testify against

Chavis, the State moved to withdraw the guilty plea. (Id. at 3–4.)

The trial court granted the State’s motion. (Id. at 8–9.)

{38} On December 18, 2001, the State moved to declare the plea

contract null and void. (Motion No. 110.) The trial court granted the

motion. (Entry No. 111, filed Dec. 18, 2001.)

{39} With new counsel appointed, Bethel moved to suppress his

proffer statement. (Motion No. 158.) The trial court determined that

the plea agreement was a contract, and characterized the conflicting

provisions as “inartfully stated.” (Tr. Vol. V at 5, 8.) But the court

held that Bethel understood, agreed to, and then breached the plea

agreement. (Id. at 5, 6, 8.) The proffer statement was ruled

admissible at Bethel’s trial. (Id. at 9.)

ECF 186-1 at PageID 10324-10325. Claim Fifteen in Petitioner’s Amended Petition argues that

Petitioner was prejudiced by the alleged suppression of exculpatory police reports because

disclosure would have prevented the plea, and thus prevented the incriminating plea proffer that

was introduced at trial. ECF No. 186-1 at PageID 10379-10382.

In United States v. Ruiz, 536 U.S. 622 (2002), the United States Supreme Court held that

the Constitution does not require the government to disclose impeachment information prior to

entering into a plea agreement with criminal defendant. However, Ruiz left open the government’s

duty with respect to pre-plea disclosure of exculpatory evidence which spawned a circuit split that

persists to date. See United States v. Mathur, 624 F.3d 498, 507 (1st Cir. 2010) (“the right

memorialized in Brady is a trial right”); Friedman v. Rehal, 618 F.3d 142, 154 (2d Cir. 2010)

(“[t]he government's obligation [under Brady] is pertinent not only to an accused's preparation for

trial but also to his determination of whether or not to plead guilty.”); United States v. Moussaoui,

591 F.3d 263, 285 (4th Cir. 2010), as amended (Feb. 9, 2010), as amended (Feb. 9, 2010), as

amended (Feb. 9, 2010) (“The Brady right, however, is a trial right”); Alvarez v. City of

Brownsville, 904 F.3d 382, 392 (5th Cir. 2018) (“[the defendant's] guilty plea precludes her from

claiming that the government's failure to disclose ... was a Brady violation.”); Miller v. Gettel,

2023 WL 2945340, at *7 (6th Cir. Apr. 14, 2023), citing Robertson v. Lucas, 753 F.3d 606, 621–

22 (6th Cir. 2014)(“In the § 1983 context, however, we have held that there is no ‘clearly

established obligation [for state and federal law enforcement officers] to disclose exculpatory

Brady material to the prosecutors in time to be put to effective use in plea bargaining.’”); McCann

v. Mangialardi, 337 F.3d 782, 788 (7th Cir. 2003) (“Ruiz indicates a significant distinction between

impeachment information and exculpatory evidence… it is highly likely that the Supreme Court

would find a violation of the Due Process Clause if prosecutors…fail to disclose such information

to a defendant before he enters into a guilty plea.”); Smith v. Baldwin, 510 F.3d 1127, 1148 (9th

Cir. 2007) (recognizing the applicability of Brady to plea bargains); United States v. Ohiri, 133 F.

App'x 555, 562 (10th Cir. 2005) (“The Government's obligation to disclose Brady materials is

pertinent to the accused's decision to plead guilty; the defendant is entitled to make that decision

with full awareness of favorable [exculpatory and impeachment] evidence known to the

Government.”). Matters are further complicated by Petitioner’s case, which does not involve the

voluntariness of a plea, but the effect of non-disclosure on the use of the plea proffer at Petitioner’s

subsequent trial.

Petitioner has already been advised, on multiple occasions, that he has no right to represent

himself in these proceedings. See ECF Nos. 161, 168, 176. As a general matter, a party represented

by counsel may not file papers pro se. 28 U.S.C. § 1654 provides that “parties may plead and

conduct their own cases personally or by counsel.” The disjunctive “or” in the statute means that

a litigant must choose between proceeding pro se and proceeding with the assistance of counsel.

United States v. Jimenez-Zalapa, No. 06-20369-B, 2007 WL 2815563 (W.D. Tenn. Sept. 25, 2007)

(Breen, D.J.); see also United States v. Mosely, 810 F.2d 93, 97–98 (6th Cir. 1987); McKaskle v.

Wiggins, 465 U.S. 168 (1984) (holding there is no constitutional right to hybrid representation).

Petitioner’s lack of formal legal education creates a disadvantage to his ability to foresee a

successful result for Claim Fifteen in the manner it has been plead by his counsel. Indeed,

Petitioner’s case presents unique and nuanced issues, yet to be determined by the Court, because

the factual basis for his withdrawn plea was used as confession evidence against him at trial.

Petitioner is facing the death penalty and his counsel has a duty to make reasonable efforts to spare

his life, including good faith arguments that Brady extends to the evidence that was allegedly

suppressed by the prosecution, both during the plea-bargaining process and prior to trial. Petitioner

believes that any Brady claim associated with his plea bargain will not ultimately be successful

but fails to identify how he would be prejudiced if the Court denies his motion. To the contrary,

due to the intertwined nature of the factual basis with both the plea and the trial, unintended

consequences prejudicial to Petitioner’s pursuit of Claim Fifteen may occur if the Court permits

him to withdraw ¶237 and ¶247 of the Amended Complaint.

For the foregoing reasons, Petitioner’s Pro Se Motion of Waiver Re: Amended Habeas

Petition Claim (ECF No. 200); Second Motion Re: Waiver of Habeas Petition Claim (ECF No.

203); and Third Motion Re: Waiver of Habeas Petition Claim (ECF No. 208) are DENIED.

May 17, 2023.

s/ Michael R. Merz

United States Magistrate Judge