Boyce v. Warden, Chillicothe Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

RAMON BOYCE,

Petitioner, : Case No. 3:21-cv-216

- vs - District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

TIM SHOOP, Warden,

Chillicothe Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS ON MOTION TO

AMEND THE JUDGMENT

This habeas corpus case, brought pro se by Petitioner Ramon Boyce under 28 U.S.C. §

2254, is before the Court on Petitioner’s Motion to Alter or Amend the Judgment under

Fed.R.Civ.P. 59(e)(ECF No. 101). As a post-judgment motion, it is referred to the Magistrate

Judge for a report and recommended decision under 28 U.S.C. § 636(b)(3).

For a district court to grant relief under Rule 59(e), “there must be ‘(1) a clear error of law;

(2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to

prevent manifest injustice.’” Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6th Cir. 2009)

(quoting Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2006)).

Motions to alter or amend judgment may be granted if there is a clear

error of law, see Sault Ste. Marie Tribe, 146 F.3d at 374, newly

discovered evidence, see id., an intervening change in controlling

constitutional law, Collison v. International Chem. Workers Union,

Local 217, 34 F.3d 233, 236 (4th Cir. 1994); Hayes v. Douglas

Dynamics, Inc., 8 F.3d 88, 90-91 n.3 (1st Cir. 1993); School District

No. 1J v. ACANDS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), or to

prevent manifest injustice. Davis, 912 F.2d at 133; Collison, 34 F.3d

at 236; Hayes, 8 F.3d at 90-91 n.3. See also North River Ins. Co. v.

Cigna Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995).

To constitute "newly discovered evidence," the evidence must have

been previously unavailable. See ACandS, 5 F.3d at 1263; Javetz v.

Board of Control, Grand Valley State Univ. 903 F. Supp. 1181, 1191

(W.D. Mich. 1995)(and cases cited therein); Charles A. Wright, 11

Federal Practice and Procedure § 2810.1 at 127-28 (1995).

Gencorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999), accord, Nolfi v.

Ohio Ky. Oil Corp., 675 F.3d 538, 551-52 (6th Cir. 2011), quoting Leisure Caviar, LLC v. United

States Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010).

A motion under Fed. R. Civ. P. 59(e) is not an opportunity to reargue a case. Sault Ste.

Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)(citation omitted).

Thus, parties should not use them to raise arguments which could and should have been made

before judgment issued. Id.; McBride v. Skipper, 76 F.4th 509 (6th Cir. Aug. 4, 2023). Howard v.

United States, 533 F.3d 472, 475 (6th Cir. 2008) (“[A] petitioner fil[ing] a Rule 59(e) motion . . . may

request only that the district court reconsider matters actually raised before it. This is because, as this

court has repeatedly held, Rule 59(e) motions cannot be used to present new arguments that could have

been raised prior to judgment.”).

Motions under Rule 59(e) must establish either a manifest error of law or must present

newly discovered evidence. Id. In ruling on an Fed.R.Civ.P. 59(e) motion, “courts will not address

new arguments or evidence that the moving party could have raised before the decision issued.

See 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2810.1, pp. 163-164

(3d ed. 2012) (Wright & Miller); accord, Exxon Shipping Co. v. Baker, 554 U. S. 471, 485-486, n.

5 (2008) (quoting prior edition).” Banister v. Davis, 140 S. Ct. 1698, 1703, 207 L.Ed. 2d 58

(2020).

Petitioner claims he is entitled to relief under the “manifest injustice” branch of Rule 59(e)

jurisprudence:

The court’s ruling above if left undisturbed results in a clear

manifest injustice to Petitioner. Federal courts have found that

manifest injustice generally indicates that a court has overlooked

some dispositive factual or legal matter that was presented to it.”

(ECF No. 101, PageID 5368, citing Rose v. Alternative Ins. Works,

LLC, 2007 WL 2533894, at *1 (D.N. J. Aug. 31, 2007). It has also

been expanded to indicate an error in the Court’s decision that is

direct, obvious, and observable. Citing Greene v. Virgin Islands

Water Power Auth., 2012 WL 4755061, at *2 (D.V.I. Oct. 5, 2012)

quoting Tenn. Prot. & Advocacy, Inc. v. Wells, 371 F.3d 342, 348

(6th Cir. 2004).

Petitioner claims the Magistrate Judge “failed to resolve” Petitioner’s latest set of

objections, made at ECF No. 98. But those objections were not given to the Magistrate Judge to

resolve. District Judge Rose had recommitted the case for consideration of Petitioner’s Objections

to the Substituted Report and Recommendations and the Supplemental Report and

Recommendations, but chose not to recommit the case after the Magistrate Judge filed his Second

Supplemental Report and Recommendations. It is certainly within a District Judge’s discretion

whether or not to recommit a case; a second recommittal as happened here is unusual. That the

District Judge chose to resolve those Objections himself is not a manifest error of law or a manifest

injustice to Petitioner.

Turning to the Magistrate Judge’s Reports and Recommendations generally, Petitioner

complains that the Magistrate Judge’s “resolutions of Petitioners arguments were not favorable to

justice but instead has [sic] favored finality over justice.” By “favorable to justice,” of course,

Petitioner means “favorable to Petitioner”. And because every habeas corpus case is a collateral

attack on a criminal judgment already entered in state court and affirmed, any decision in favor of

the State “favors” finality over the petitioner’s interests. American judges are not commissioned

to do justice in the abstract, but rather justice under the law. It is therefore inappropriate for a

judge to choose to favor finality or “justice” as a petitioner sees it, but to apply the law, which will

sometimes favor a petitioner (e.g. the actual innocence exception to procedural default) and

sometimes the State (e.g., the statute of limitations). The question to ask is whether a judge has

faithfully followed the law, rather than whether he has “favored” one side or the other.

But Petitioner claims the undersigned does not intend to follow the law but has other

motives:

Regardless if the Magistrate Judge is politically motivated or has

disfavor toward prisoners or the Grate [sic] Writ itself, Petitioner

should enjoy a constitutional right to have his grounds actually

considered, with material recommendations even if unfavorable to

him, but not simply foreclosed because of him having the status of

prisoner or being convicted of a crime.

(Motion, ECF No. 101, PageID 5370). Petitioner’s grounds have been actually considered. The

Second Substituted Report and Recommendations (ECF No. 71) is no summary rejection of the

Petition because it is brought by a prisoner1, but a thirty-seven page consideration of every claim

Boyce has made. Boyce objected and the undersigned wrote another sixteen pages considering all

of those objections (ECF No. 86). Boyce objected again and the undersigned wrote another

thirteen pages considering those objections (ECF No. 91). In addition to extended analysis of the

merits of Boyce’s arguments, the undersigned has extended his time to make those arguments ten

times (ECF Nos. 22, 30, 47, 62, 64, 72, 74, 92, 94, 96) which does not give the appearance of

favoring “finality” over Petitioner’s interests. Finally, the Magistrate Judge has given considerable

time to considering Petitioner’s ancillary motions to expand the record, to redact, and so forth.

1 Of course, only a person in custody can bring a writ of habeas corpus.

Over the last few decades, the law itself has become less favorable to habeas corpus cases.

In 1963, requiring a method to enforce all of the new constitutional rights it had recognized, the

Warren Court expanded the Great Writ to its furthest extent ever under American law. See Fay v.

Noia, 372 U.S. 391 (1963), and Townsend v. Sain, 372 U.S. 293, 313 (1963), decided on the same

day. Since then the Supreme Court has steadily reduced the reach of habeas relief: Stone v. Powell,

428 U.S. 465 (1976)(excluding Fourth Amendment cases);Wainwright v. Sykes, 433 U.S. 72, 86-

87 (1977)(procedural default); Rose v. Lundy, 455 U.S. 509 (1982)(dismissal of “mixed”

petitions); Herrera v. Collins, 506 U.S. 390 (1993)(actual innocence claim not cognizable); Cullen

v. Pinholster, 563 U.S. 170 (2011), and Shinn v. Ramirez, 596 U.S. ___, 142 S.Ct. 2037

(2022)(evidentiary hearings not available generally in habeas). Congress intervened in a massive

way with the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214)(the "AEDPA")(statute of limitations, ban on second or successive petitions, only

Supreme Court holdings count as precedent). The Supreme Court has recognized that promoting

finality of state court judgments was a major purpose of the AEDPA. Shinn, supra. Whether a

lower court judge “favors” finality or not, he or she is bound to faithfully follow Supreme Court

precedent. "Unless we wish anarchy to prevail within the federal judicial system, a precedent of

this Court must be followed by the lower federal courts no matter how misguided the judges of

those courts may think it to be." Hutto v. Davis, 454 U.S. 370, 375 (1982); Litman v.

Massachusetts Mut. Life Ins. Co., 825 F.2d 1506 (11th Cir. 1987). See Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U. S. 477, 484, (1989).

Boyce concludes his discourse on the undersigned’s bias by stating “Petitioner is unaware

of the Magistrate judge recommending the grant of a single writ under §2254 in decades.” (Motion,

ECF No. 101, PageID 5370). Petitioner’s attention is respectfully directed to Hartman v. Ohio

Adult Parole Authority, Case No. 3:19-cv-003 (S.D. Ohio); Gillispie v. Warden, Case No. 3:09-

cv- 471 (S.D. Ohio); Depew v. Ohio, Case No. 1:94-cv-459 (S.D. Ohio)(capital case); and Zuern

v. Tate, Case No. 1:92-cv-771 (S.D. Ohio)(capital case).

Having concluded his general argument in support of amendment, Boyce then turns to

argument on each of his thirteen grounds for relief.

Ground One: Improper Allowance of Evidence Related to a Prior Burglary Conviction

In his First Ground for Relief, Petitioner complained of the trial court’s allowance into

evidence of his prior 2008 burglary conviction which he claims is irrelevant to the charges in the

instant case. The Magistrate Judge recommended dismissal of this claim on the merits because

Boyce did not cite any Supreme Court precedent to which the state court’s decision was contrary

or of which it was an objectively unreasonable application (Sub. R&R, ECF No. 71, PageID 5015).

He did not respond to this point in his Objections and the Magistrate Judge again recommended

dismissal (Supp. R&R, ECF No. 86, PageID 5192). Boyce objected that arguing this claim as he

had also fairly presented an unfair trial constitutional claim. The Magistrate Judge again

recommended dismissal because Boyce had still not cited any Supreme Court precedent in point

(2nd Supp R&R, ECF No. 91, PageID 5276). The District Judge adopted all three Reports and

Recommendations.

Boyce’s instant Motion asserts:

This court[‘]s September 27, 2023 entry and order did not consider

Petitioner objections (Doc. No. 98, PageID 5299) where he

requested the Court to consider the Sixth Circuit’s ruling out of

Michigan See McGhee v. Davis, 2012 U.S. Dist. LEXIS 186707

where the McGhee Court analyzed and applied Ohio law which

mirrors Petitioner’s argument concerning his Ohio 404(B)evidence

violation amounting to Petitioner fundamental right to a fair trial

being violated.

(Motion to Amend, ECF No. 101, PageID 5371). There are a number of relevant observations.

First, the fact that the Decision and Entry did not cite McGhee does not mean that it was not

considered. When a District Judge reviews a Magistrate Judges report, he or she is under no

obligation to explain everything they considered.

Second, McGhee does not contravene anything recommended in the Reports. The cited

opinion is by The Honorable Laurie J. Michelson, a United States Magistrate Judge who sits no

higher in the judicial hierarchy than the undersigned. It is not a decision by the Sixth Circuit Court

of Appeals binding on this Court. Second, Magistrate Judge Michelson recommended denying

the writ of habeas corpus. She explicitly found that “the Supreme Court precedent reviewed by

this Court suggests that the Michigan Court of Appeals' conclusion of nonconstitutional error was

not an unreasonable application of, or contrary to Supreme Court case law.” Id. at *21. That is

exactly the position taken by the undersigned.

In sum, even considered as persuasive rather than binding precedent, McGhee supports the

Magistrate Judge’s conclusion, adopted by the District Court, that there is no United States

Supreme Court precedent holding that arguing a state evidentiary ruling on admission of a prior

bad act fairly presents an unfair trial claim.

In the same paragraph as his inapposite citation of McGhee, Boyce writes:

Nor did this Court consider or acknowledge that an evidentiary

ruling made at trial violates due process where the ruling is so

egregious that it results in a denial of fundamental fairness.” Bey v.

Bagley, 500 F.3d 514, 520 (6th Cir. 2007), quoting Bugh v. Mitchell,

329 F.3d 496, 512 (6th Cir. 2003)).

(Motion, ECF No. 101, PageID 5371). This argument demonstrates why the scope of motions to

amend the judgment is quite narrow. The Magistrate Judge did consider and cite Bey in the original

Report (ECF No. 71, PageID 5015) as well as Bugh v. Mitchell. Id. While they both repeat the

general principle that an evidentiary ruling can be so fundamental as to violate due process, Bugh

expressly holds (as the Report notes) that the Supreme Court has never found admission of a prior

bad act to violate due process. This Court has considered the general principle for which Boyce

contends, but is obliged to respect Supreme Court precedent refusing to extend that principle to

prior bad acts evidence. And in making this argument, Boyce is doing precisely what Rule 59(e)

jurisprudence forbids: restating arguments previously made and rejected by the Court.

Boyce next cites Montana v. Egelhoff, 518 U.S. 37 (1996), for the proposition that “a

misbegotten evidentiary ruling that results in a fundamentally unfair trial may violate due process

and, thus, ground federal habeas relief.” (Motion, ECF No. 101, PageID 5372, citing Egelhoff at

43). The purportedly quoted language does not appear at the cited page. Indeed, the word

“misbegotten” does not appear at all in the decision. More importantly, the Court held that right

to have a jury consider evidence of voluntary intoxication in determining whether accused

possessed the mental state required for conviction was not a “fundamental principle of justice,”

and therefore, Montana's statutory ban on consideration of such evidence did not violate due

process clause. Here again Boyce cites precedent which is in the general area of assessing state

evidence rules for constitutional violations, but does not come close to holding other acts evidence

can make a trial “fundamentally unfair.”

Perhaps the difficulty here is that lay people do not easily distinguish between the holding

of a case and dictum. A holding consists of the ‘court’s determination of a matter of law pivotal

to its decision.’” Garner, et al. “The Law of Judicial Precedent at 44, quoting Black’s Law

Dictionary 849 (Bryan A. Garner ed., 10th ed. 2014). The line between holding and dictum is a

distinction that dates from legal literature during the late 18th century. Garner at 44. “Dictum” is

defined in Garner’s Dictionary of Legal Usage as “a nonbinding, incidental opinion given by a

judge in the course of a written opinion delivered in support of a judgment.” Garner at 46. Habeas

corpus relief can be granted in a case decided on the merits by state courts only if that decision is

contrary to or an objectively unreasonable application of the holding in a Supreme Court decision.

Dicta don’t count. And Boyce has not even cited Supreme Court dictum for the proposition that

admitting prior bad acts evidence makes a trial fundamentally unfair.

Ground Two: Admission of Evidence Seized in Violation of the Fourth Amendment

In his Second Ground for Relief, Boyce argued evidence seized without a warrant from his

car was admitted in evidence in violation of the Fourth Amendment. Respondent asserted merits

review of this claim was barred by Stone v. Powell, 428 U.S. 465 (1976). In his Motion to Amend

the Judgment, Boyce asserts “The Magistrate Judge repeatedly refused to acknowledge that

Petitioner’s presentation his [F]ourth Amendment claims were frustrated by Petitioner’s trial

Judge.” (ECF No. 101, PageID 5374). That is an accurate summary of what has happened in the

case: the undersigned rejected Ground Two on the basis of Stone in the Amended Substitute

Report, the Supplemental Report, and the Second Supplemental Report.

And then so did Judge Rose when he adopted those Reports. The Motion to Amend in

relation to Ground Two complains that the District Judge did not “address” this or that precedent

or “resolve” this or that issue and then proceeds to reargue those issues as they were previously

argued before the Reports were filed. Nothing in the law requires a District Judge to discuss every

issue raised or precedent cited by a litigant, particularly when the issues have been dealt with by

extensive reports and recommendations. Petitioner’s Motion to Amend does not show the Court

made a mistake of law and it is not a “manifest injustice” to refuse to give a litigant in a final

decision the extensive discussion that a Magistrate Judge has already given. To hold otherwise

would undermine the value of referring cases to Magistrate Judges in the first place.

Ground Three: Conviction Based on Insufficient Evidence

In his Third Ground for Relief, Boyce claimed he was convicted on insufficient evidence.

Respondent asserted this claim was procedurally defaulted because it has not been raised on direct

appeal. Boyce countered that the default was excused by ineffective assistance of appellate

counsel. The Report noted that he had raised an ineffective assistance of appellate counsel claim

in an Application for Reopening under Ohio R. App. P. 26(B) and the Second District Court of

Appeals had decided it against him on the merits. Because that decision was entitled to AEDPA

deference under 28 U.S.C. § 2254(d)(2), Boyce could not rely on his ineffective assistance of

appellate counsel claim to excuse the default.

Boyce claimed the Second District’s decision was an unreasonable application of

Strickland v. Washington, 466 U.S. 668 (1984), because fourteen months after the Second District

decided his 26(B) Application, the Supreme Court of Ohio clarified the manner in which 26(B)

applications were to be decided in State v. Leyh, 166 Ohio St.3d 365 (2022). The Magistrate Judge

found Leyh inapplicable because (1) it changed the process by which 26(B) applications were to

be decided, but not the standard for deciding and (2) the Ohio Supreme Court has never held Leyh

is to be applied to 26(B) decisions completed before Leyh was handed down.

Boyce’s argument on this Ground follows the structure of his arguments on Grounds One

and Two: he claims the Decision and Entry of September 27, 2023, “does not address Petitioner’s

objection with the Magistrate Judge’s Report merging Strickland for consideration of excusing

procedural default and the Second District’s resolution of the underlining [sic] ground, which was

counsel’s ineffective for failing to raise the claim amounting to a misapplication of the Strickland

standards.” (ECF No. 101, PageID 5380). On the contrary, the Decision does address that

objection by overruling it, albeit without the further discussion Boyce seems to believe is required.

That simply is not the law. No rule or precedent cited by Boyce requires that amount of detail in

a District Judge’s decision adopting a Magistrate Judge’s Report. Boyce is here, once again,

rearguing points made before judgment and rejected by the Court.

The balance of Boyce’s argument on Ground Three consists of pointing out inconsistencies

in the testimony (ECF No. 101, PageID 5381-91). This again amounts to reargument of points

made before judgment which, again, is not the purpose of Fed.R.Civ.P. 59(e).

Grounds Four, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, and Thirteen

Boyce’s argument on Ground Three ends at PageID 5391, merely halfway through his

fifty-two page motion. While this Report could continue cataloging the many ways in which

Boyce believes the Decision and Entry did not “address” his various objections to the Reports, this

would serve no useful purpose. The Reports dealt extensively with Boyce’s claims and his

objections to the recommendations on those claims. Boyce objected, but District Judge Rose

overruled those objections in summary fashion. Boyce has now reargued the same objections in

his Motion to Amend, but that is outside the purpose of Rule 59(e).

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the

Motion to Alter or Amend (ECF No. 101) be denied. 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.

October 25, 2023.

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, but service is complete when the document is mailed, not when it is recetved. 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. #

s/ Michael R. Merz

United States Magistrate Judge

12