Widmer v. Warden, Correctional Reception Center

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RYAN WIDMER, : Case No. 1:14-cv-303

:

Petitioner, : District Judge Timothy S. Black

: Magistrate Judge Michael R. Merz

vs. :

:

WARDEN, CORRECTIONAL :

RECEPTION CENTER, :

:

Respondent. :

DECISION AND ENTRY:

(1) ADOPTING THE REPORTS AND RECOMMENDATIONS OF THE

UNITED STATES MAGISTRATE JUDGE (Docs. 35, 40); and

(2) DENYING WRIT OF HABEAS CORPUS

This case is before the Court on Ryan K. Widmer’s petition for a writ of habeas

corpus. (Doc. 1). Pursuant to this Court’s Order of General Reference, this case was

referred to United States Magistrate Judge Michael R. Merz. The Magistrate Judge

reviewed the pleadings, including Widmer’s Petition, Respondent Warden’s Return of

Writ, and Widmer’s reply. (Docs. 1, 22, 25). The Magistrate Judge also held oral

arguments. (Doc. 31).

On February 2, 2017, the Magistrate Judge submitted a Report and

Recommendations to this District Judge, recommending that Widmer’s petition for a writ

of habeas corpus be denied with prejudice. (Doc. 35). Widmer filed extensive objections

to the Report and Recommendations on April 17, 2017. (Doc. 37). The Warden filed a

response to those objections. (Doc. 39). This District Judge issued an Order of

Recommittal to the Magistrate Judge with instructions to file a supplemental report,

analyzing the objections and making recommendations based on that analysis. (Doc. 38).

On June 29, 2017, the Magistrate Judge submitted a Supplemental Report and

Recommendations, again recommending that Widmer’s petition be denied with

prejudice. (Doc. 40). Widmer filed additional objections to the Supplemental Report and

Recommendations on July 13, 2017. (Doc. 41). The Warden filed a response to those

supplemental objections on August 16, 2017. (Doc. 44).1

I. BACKGROUND

The factual and procedural background of this case spans multiple trials and

appeals. Widmer asserts twelve grounds for relief in this habeas petition, each with a

1 This Judge acknowledges that it has taken a long time to resolve this case in this Court.

The history of Widmer’s case is anything but simple. Widmer was arrested on August

13, 2008 and he was indicted two days later. (Doc. 17-1, Ex. 3). His state court

proceedings lasted over five years, culminating in the Supreme Court of the United States

denying Widmer’s second petition for writ of certiorari on October 24, 2013. (Doc. 20-1,

Ex. 174). The state court proceedings consisted of three separate jury trials (totaling over

45 days of pretrial, post-trial, and trial transcripts (Docs. 21-1–21-18, PageID# 2785–

10050)), three appeals (one with a cross-appeal), and over 174 filings and state court

orders and decisions (Docs. 17-1, 18-1, 19-1, 20-1, PageID# 226–2782). Widmer then

filed the instant habeas corpus action, asserting twelve grounds for relief, resulting in

extensive briefing, an oral argument, a Report and Recommendations, a Supplemental

Report and Recommendations, lengthy objections and supplemental objections, and

responses to each set of objections. The habeas briefing, oral argument, and collateral

briefing alone totaled nearly 1,100 pages on the docket. And the state court record, as

presented to this Court by the Respondent, totaled over 7,200 pages, none of which are

appropriately bookmarked or indexed, and the vast majority of which are not even text

searchable. This District Court took no part in any of the state court proceedings.

Therefore, the Court was required to undertake an exhaustive review of Widmer’s state

court record, before beginning its analysis and consideration of Widmer’s habeas

petition. Having conducted fulsome review, and upon thorough consideration, the Court

concludes Widmer is not entitled to habeas relief and his conviction must stand.

nuanced factual and procedural history. With this in mind, and for ease of the reader, the

Court provides additional factual background when addressing the grounds for relief, as

necessary. To set the scene, the following is a short summary:2

On August 11, 2008, Petitioner Ryan Widmer called 9-1-1 for emergency

assistance. (Doc. 17-1, Ex. 2 at ¶ 2). Widmer stated that his wife, Sarah, had fallen

asleep in the bathtub at their home and he thought she was dead. (Id.). Widmer then

drained the bathtub, pulled Sarah out, and attempted CPR. (Id. at ¶ 3). Paramedics and

emergency medical technicians were called to the scene. (Id. at ¶ 5). First responders

tried to resuscitate Sarah, including five separate and unsuccessful intubation attempts.

(Id. at ¶¶ 5–7). While at the scene, Widmer admitted to law enforcement he had been

drinking. (Id. at ¶ 7).

Sarah was taken to the hospital and the treating room physician successfully

intubated Sarah and continued treatment. (Id. at ¶ 8). At the hospital, Widmer also told a

nurse that he had found Sarah in the bathtub, face-up, and not breathing. (Id.). After 20

minutes of treatment in the emergency room, and about one hour after Widmer first

called 9-1-1, Sarah was pronounced dead. (Id. at ¶ 9).

2 The Report and Recommendations provides a thorough recitation of the facts and procedural

posture of this case, citing the Ohio Court of Appeals for the Twelfth District’s description of

facts and circumstances leading to Widmer’s indictment, trials, conviction, and sentencing

during his direct appeal. (Doc. 35 at 2–12). (See also, Doc. 17-1, Ex. 2, State v. Widmer, 2012-

Ohio-4342, at ¶¶ 2–38 (Ohio Ct. App. Sept. 24, 2012)). When answering the Petition, the

Warden relies on the same facts. (Doc. 22 at 2–11). Widmer’s Petition also provides a detailed

statement of facts, including facts that came to light after his trials. (Doc. 1-1 at 31–56). The

Court references these facts throughout this Decision and Entry.

At the hospital, Widmer consented to a search of his home. (Id. at ¶ 10).

Detective Lieutenant Jeff Braley with the Hamilton Township Police Department led the

initial search of the scene and collection of evidence. (Id. at ¶¶ 11–14).

Widmer was arrested on charges of aggravated murder on August 13, 2008, a little

over a day after Sarah died. (Id. at ¶ 18). That same day, a warrant was issued to search

the Widmer residence. (Id.). Pursuant to that warrant, the bathtub where Sarah was

found was seized and taken to a crime lab. (Id.).

Widmer’s first trial occurred in March 2009. (Id. at ¶ 22). He was found guilty of

murder and sentenced to 15 years to life. (Id.). After the trial, it was discovered that jury

members engaged in improper discussions of personal and external matters, and a new

trial was granted. (Id.).

Widmer’s second trial in May 2010 resulted in a mistrial. (Id.). Before the second

trial, Widmer issued subpoenas for employment records of the State’s lead investigator,

Lt. Braley, contending Braley’s application with Hamilton Township contained false

information. (Id. at ¶¶ 117–27). Widmer argued that the false information was relevant

to Braley’s qualifications and credibility. The trial court quashed the subpoenas. (Id. at ¶

127). Widmer also moved to suppress the bathtub and related evidence, contending the

bathtub was seized in violation of his Fourth Amendment rights. (Id. at ¶ 42). The trial

court denied the motion as untimely. (Id.).

Widmer’s third trial – the operative trial for this habeas petition – occurred in

January 2011. (Id. at ¶ 27). After four weeks and testimony from more than 40

witnesses, the jury found Widmer guilty of murder. (Id. at ¶¶ 27, 38). He was sentenced

to 15 years to life in prison. (Id. at ¶ 38).

After the third trial, Widmer moved for a new trial and for judgment of acquittal,

which were denied after a hearing. (Doc. 19-1, Ex. 133). Widmer filed a direct appeal

on multiple grounds, many at issue in this petition.3 (Doc. 19-1, Exs. 138–39). The Ohio

Court of Appeals for the Twelfth District affirmed Widmer’s conviction. (See Doc. 17-1,

Ex. 2, State v. Widmer, 2012-Ohio-4342, 2012 WL 4350275 (Ohio Ct. App. Sept. 24,

2012)). Both the Supreme Court of Ohio and the Supreme Court of the United States

declined review. (Doc. 19-1, Ex. 146; Doc. 20-1, Ex. 149).

During the pendency of the direct appeal, Widmer also moved the trial court for

postconviction relief, a new trial, and an evidentiary hearing, based on the discovery of

new evidence about lead investigator Braley’s background. Widmer also sought to test

Sarah’s DNA and to compel production of the grand jury testimony of lead investigator

Braley and Deputy Coroner Russell Uptegrove. (Doc. 20-1, Exs. 150–53). The trial

court denied Widmer’s requests. (Id. at Ex. 159). Widmer appealed these postconviction

decisions as well, and the postconviction appellate court affirmed. (See id. at Ex. 167,

State v. Widmer, 2013-Ohio-62, 2013 WL 142041 (Ohio Ct. App. Jan. 14, 2013)). Both

the Supreme Court of Ohio and the Supreme Court of the United States declined review.

(Id. at Exs. 171, 174).

3 Widmer also filed a motion to preserve biological samples and materials obtained from Sarah

Widmer and physical evidence collected at the scene, which was granted by the trial court.

(Doc. 19-1, Exs. 134, 137).

On February 20, 2014, Widmer commenced this federal case by filing a petition

for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, and presenting twelve grounds

for relief. (Doc. 1).

II. STANDARD OF REVIEW

A. District Court’s Review of the Reports and Recommendations

Pursuant to 28 U.S.C. § 636(b), the District Court may refer dispositive motions,

including motions of postconviction relief, to a United States Magistrate Judge. Upon

such reference, the Magistrate Judge must submit a Report and Recommendations,

providing a recommended disposition of the motion, as well as proposed findings of fact.

Id.; Fed. R. Civ. P. 72(b). Upon service of a Magistrate Judge’s Report and

Recommendations, the parties may serve and file specific written objections to the Report

and Recommendations for the District Judge’s consideration. Id.

If objections are filed, the District Judge “must determine de novo any part of the

magistrate judge’s disposition that has been properly objected to…[and] may accept,

reject, or modify the recommended disposition….” Fed. R. Civ. P. 72(b)(3). Thus, the

District Judge is not required to review de novo every issue raised in the original motion

or habeas petition, but only those matters from the Report and Recommendations that

received proper objections. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986).

B. Federal Habeas Corpus Review

For the federal courts to consider a petition for writ of habeas corpus, the

petitioner must be subject to a state court judgment that is alleged to be “in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The

petitioner must also have exhausted any available state court remedies, such as the state

appeals process. 28 U.S.C. § 2254(b).

In reviewing a habeas petition, the federal court must presume that the state

court’s determination of the facts is correct, unless the petitioner shows otherwise by

clear and convincing evidence. 28 U.S.C. § 2254(e). Additionally, the federal court

cannot overturn a state criminal conviction unless: (1) the state court unreasonably

applied United States Supreme Court precedent; or (2) the conviction turned on

unreasonable factual findings. Stewart v. Trierweiler, 867 F.3d 633, 636 (6th Cir. 2017)

(citing 28 U.S.C. § 2554(d)).

In other words, federal law specifically limits this Court’s authority to grant relief

in a habeas case unless the state court’s judgment:

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established federal

law, as determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts considering the evidence

presented in the state court proceeding.

28 U.S.C. § 2254(d). Apart from these two exceptions, “[b]y its terms § 2254(d) bars

relitigation of any claim ‘adjudicated on the merits’ in state court.” Harrington v.

Richter, 562 U.S. 86, 98 (2011).

If, however, the claim set forth in the habeas petition has not been adjudicated by

the state court, “on the merits,” then a more plenary standard of review applies. Cone v.

Bell, 556 U.S. 449, 472 (2009). As set forth in Marion, the district court must review

questions of law under a de novo standard and questions of fact under a clear error

standard. Marion v. Woods, 663 F. App’x 378, 381 (6th Cir. 2016) (citing Robinson v.

Howes, 663 F.3d 819, 823 (6th Cir. 2011)).4

Moreover, it is “well settled that the fact that constitutional error occurred in the

proceedings that led to a state-court conviction may not alone be sufficient reason for

concluding that a [petitioner] is entitled to the remedy of habeas.” Williams v. Taylor,

529 U.S. 362, 375 (2000) (collecting cases). However, “errors that undermine

confidence in the fundamental fairness of the state adjudication certainly justify the

issuance of the federal writ.” Id.

III. ANALYSIS5

This Court has before it the United States Magistrate Judge’s Initial and

Supplemental Reports and Recommendations.

4 It is unnecessary for this Court to use a plenary standard of review in this decision. All

Widmer’s grounds for relief were either: (1) precluded or not cognizable in habeas, so no

standard of review applies; or (2) adjudicated on the merits by the direct appellate court or

postconviction appellate court. Thus, in this case, the AEDPA’s highly deferential standard

applies.

5 Citations to the record in this case are complicated by the sheer volume of the record, the lack

of clear identifiers on the docket, the inconsistent page numbering, and the lack of any clear

indexing or search functionality (particularly as it pertains to the transcripts). To offer some

clarity, the Court will include a footnote at the beginning of each analysis subsection, identifying

the most pertinent and frequently cited documents for purposes of that particular ground for

relief, and will provide a full record citation to pinpoint the locations of each document in the

following format: (Doc. [#], [Ex. #] at [document page #]; [PageID #]). The Court will use

paragraph numbers in lieu of page numbers when citing to Ohio state court decisions, given that

Ohio state courts use paragraph numbers. The Court will then use shorter citations in the body of

the Order.

This District Judge’s role is now to review those Reports and Recommendations,

and, specifically, to review de novo all objections properly raised by Widmer and to

“accept, reject, or modify, in whole or in part, the findings or recommendations made by

the magistrate judge.” 28 U.S.C. § 636 (b)(1); Fed. R. Civ. P. 72(b)(3).

The Court will address Widmer’s proper objections when addressing the related

ground for relief, providing background facts and procedural history as necessary. As

discussed, infra, after an extensive review of the pleadings, state court record, Magistrate

Judge’s recommendations, and Widmer’s objections, this Court finds that Widmer is not

entitled habeas relief.

A. Ground 1 – Body Mark Testimony6

The state courts unreasonably determined the facts and ruled

contrary to or unreasonably applied clearly established

Supreme Court precedent concerning Widmer’s constitutional

rights to due process, a fair trial, and confrontation by

permitting the admission of impermissible expert opinion

testimony that: (1) reached beyond the expert’s purported

expertise; (2) lacked scientific foundation; and (3) was based

on a methodology that has been proven unreliable.

(Doc. 1-1 at 40).

6 The following are full citations to frequently cited entries in the Court’s analysis of Ground 1:

Petition (Doc. 1-1 at 41–60; PageID# 57–76); Report and Recommendation (Doc. 35 at 30–

48; PageID# 10512–30); Petitioner’s Objections (Doc. 37 at 3–26; PageID# 10658–81);

Supplemental Report and Recommendation (Doc. 40 at 3–18; PageID# 10774–89);

Petitioner’s Supplemental Objections (Doc. 41 at 4–24; PageID# 10831–51); Widmer Direct

Appellate Court Decision (Doc. 17-1, Ex. 2 at ¶¶ 62-78, PageID# 270–78); Third Trial -

Testimony of City of Cincinnati Senior Criminalist William Hillard (Doc. 21-17 at 111-53;

PageID# 8943–85); Third Trial - State’s Closing (Doc. 21-17 at 1045–1161; PageID# 9877–

95).

In Ground 1, Widmer argues that his constitutional rights were violated when the

trial court allowed improper expert testimony related to body mark impressions found in

the Widmer’s bathtub. (Id. at 40–60). The direct appellate court concluded Widmer’s

Confrontation Clause and due process rights were not violated when the jury heard this

evidence. (Doc. 17-1, Ex. 2 at ¶¶ 75–77).

The Magistrate Judge recommends denying relief on this ground. (Doc. 35 at 30–

48; Doc. 40 at 3–18). Widmer asserts one proper objection to Ground 1: Objection 1.

(Doc. 37 at 3–18).7 Accordingly, this Court conducted a de novo review of this ground,

and, for the foregoing reasons, Widmer is not entitled to relief under Ground 1.

1. Factual Background

When initially searching the Widmer residence, Lt. Braley tested the bathtub for

prints. (Doc. 17-1, Ex. 2 at ¶ 18). Braley saw marks he believed to be made by human

hands, so he contacted the Miami Valley Crime Lab. (Id.). The crime lab tested the

bathtub at the scene, but was unable to visualize any latent fingerprints of value. (Id.).

The bathtub was subsequently seized from the Widmer residence. (Id.). The crime lab

again tested the bathtub for prints, but was unable to visualize or identify any latent prints

of value. (Id.).

7 Objections 2 and 3 also relate to Ground 1. (Doc. 37 at 18–23). The Magistrate Judge

withdrew the conclusions for the basis of Objection 2; thus, Objection 2 is overruled as moot.

(Doc. 40 at 15). For Objection 3, Widmer asserts the Magistrate Judge independently concluded

that Hillard was an expert. The Magistrate Judge did not make this finding, but merely

interpreted the direct appellate court’s decision. (Doc. 35 at 42). Objection 3 is not well-taken.

Months later, criminalist Bill Hillard was called to test the bathtub. (Id. at ¶ 19).

Hillard, like the crime lab, also did not visualize any latent fingerprints of value. (Id.).

Hillard, however, found marks along the top of the tub that indicated it had been wiped

down. (Id.). Hilliard also found two separate sets of body mark impressions: (1) a

forearm impression, which impression Hillard believed was a male forearm based on the

presence of hair follicles, and which impression Hillard concluded was “overlaying,” or

made, after circular impressions of bath product bottles; and (2) fingertip streaks made in

a downward position and made by a person of small stature, like a child, female, or a

small male. (Id. at ¶¶ 19, 62).

Prior to the third trial, Widmer filed a motion in limine to preclude Hillard from

testifying about the size and sex of the individuals who made the forearm or fingertip

impressions. (Id. at ¶ 63). The trial court did not rule on the motion prior to trial, and it

was presumed denied. (Id.).

During the third trial, Hillard was offered as an expert in the areas of crime scene

analysis, fingerprint analysis, and crime scene photography, based on his thirty years of

experience as a criminalist. (Id.). Widmer did not object to Hillard’s qualifications as an

expert; however, Widmer objected to the content of Hillard’s body impression testimony,

which objections were overruled. (Id.).

Hillard testified as an expert witness to the various markings. (See Doc. 21-17 at

111–53). He testified that there is no scientific methodology to identifying body mark

impressions, but that his findings were based on his thirty years as a criminalist. (Doc.

17-1, Ex. 2 at ¶ 70–71). Hilliard did not specifically name Widmer as the source of the

forearm nor Sarah as the source of the fingertips. (Id. at ¶ 71). During closing, the State

used Hillard’s testimony to create a narrative that Widmer violently killed Sarah in the

bathtub – leading to the fingertip impressions – and then tried to clean up his mess and

stage Sarah’s death as an accident – leading to the forearm impression made after bottle

marks around the bathtub. (See Doc. 21-17 at 1055–56).

2. Last Explained State Court Decision

On direct appeal, Widmer argued that the trial court improperly permitted

Hillard’s “expert” testimony because it was based on unreliable methodology, violating

his due process rights and running afoul to the Confrontation Clause. (Doc. 17-1, Ex. 2 at

¶ 62). The direct appellate court denied this error. First, the direct appellate court

analyzed Hillard’s testimony under Ohio Evid. R. 702 (expert testimony), and concluded

that the trial court did not abuse its discretion by permitting Hillard to testify as an expert

on the body mark impressions because: (1) his testimony was based on his thirty years of

experience as a criminalist; (2) he never testified that he relied on any scientific

methodology when reaching his conclusions, only his experience; and (3) he was

“explicit in stating that he could not identify the specific individual who made the

markings, that person’s gender, or when the markings had been left on the bathtub.” (Id.

at ¶¶ 63–74).

Second, the direct appellate court discussed Widmer’s constitutional arguments,

finding “that the admission of Hillard’s testimony did not violate Widmer’s due process

rights or his constitutional rights under the Sixth Amendment.” (Id. at ¶ 75). The direct

appellate court reached this conclusion because Hillard’s “testimony about the forearm

impression and fingertip markings he found on the bathtub were subject to cross-

examination by Widmer. [Moreover,] Widmer was given the express opportunity to

challenge and cast doubt on Hillard’s conclusions about the forearm impression and the

fingertip marks.” (Id. at ¶ 77).

In this habeas petition, Widmer properly brings the same constitutional issues.

3. Confrontation Clause and Due Process

The Court starts with Widmer’s Confrontation Clause claim. The Supreme Court

articulates the Confrontation Clause as follows:

The Sixth Amendment to the United States Constitution, made

applicable to the States via the Fourteenth Amendment,

Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d

923 (1965), provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right…to be confronted with the

witnesses against him.” In Crawford, after reviewing the

Clause’s historical underpinnings, we held that it guarantees a

defendant’s right to confront those “who ‘bear testimony’”

against him. 541 U.S., at 51, 124 S.Ct. 1354. A witness’s

testimony against a defendant is thus inadmissible unless the

witness appears at trial or, if the witness is unavailable, the

defendant had a prior opportunity for cross-examination. Id.,

at 54, 124 S.Ct. 1354.

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009).

At trial, Widmer was able to cross-examine Hillard and confront Hillard about the

reliability of his testimony. Thus, the direct appellate court’s analysis regarding the

Confrontation Clause was not unreasonable or contrary to Supreme Court precedent.

Turning to Widmer’s due process challenge, which is a challenge to the trial

court’s evidentiary ruling admitting Hillard’s testimony pursuant to Ohio Evid. R. 702.

“A federal court may not issue the writ on the basis of a perceived error of state

law.” Pulley v. Harris, 465 U.S. 37, 41 (1984). A trial court’s alleged evidentiary error

“is thus not cognizable on federal habeas review unless the state court’s ruling was so

fundamentally unfair that it amounted to a due process violation.” Roby v. Burt, No. 17-

2043, 2018 WL 1176512, at *2 (6th Cir. Feb. 14, 2018) (citing Estelle v. McGuire, 502

U.S. 62, 67–68 (1991); Moreland v. Bradshaw, 699 F.3d 908, 923 (6th Cir. 2012)). See

also Marshall v. Lonberger, 459 U.S. 422, 438, n.6 (1983) (reaffirming Spencer v. Texas,

385 U.S. 554 (1967)) (“Due Process Clause does not permit the federal courts to engage

in a finely-tuned review of the wisdom of state evidentiary rules.”).

“[D]ue process is violated, and thus habeas relief warranted, only if an evidentiary

ruling is ‘so egregious that it results in a denial of fundamental fairness.’” Ege v. Yukins,

485 F.3d 364, 375 (6th Cir. 2007) (quoting Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir.

2003)). “These principles have their roots in the Supreme Court decision of Chambers v.

Mississippi, which held that trial errors cannot ‘defeat the ends of justice’ or otherwise

deprive a defendant of h[is] right to a fair trial.” Id. (quoting Chambers v. Mississippi,

410 U.S. 284, 302–03 (1973)). The ultimate question is whether the evidentiary ruling

“so infected the entire trial that the resulting conviction violates due process.” Estelle,

502 U.S. at 72 (quotation omitted).

The crux of Widmer’s federal arguments and objections on his due process claim

is that due process rights are violated when a conviction is based on unreliable scientific

evidence, i.e., testimony like Hillard’s body mark impression testimony. As the

Magistrate Judge correctly recognized, there is no Supreme Court case that clearly

establishes that due process is violated when unreliable evidence is admitted.8 (Doc. 40

at 12). Rather, the question is whether, assuming Hillard’s testimony was unreliable and

should not have been admitted, admitting the testimony so infected the entire trial that

Widmer’s conviction violated due process. Estelle, 502 U.S. at 72 (quotation omitted).

The direct appellate court said no, instead finding that the trial court did not abuse

its discretion by admitting the testimony. And this Court cannot say that the direct

appellate court’s conclusion was contrary to or an unreasonable application of Supreme

Court precedent.9 Even taking Hillard’s testimony as unreliable, Widmer’s counsel had

the opportunity to, and did in fact, cross-examine Hillard about his methodology and

observations. (Doc. 21-17 at 133–49, 152–5). Moreover, Hillard’s testimony was but

one aspect of the state’s presentation. As the Magistrate Judge described when

8 Widmer cites Han Tak Lee v. Houtzdale SCI, 798 F.3d 159, 163 (3d Cir. 2015) for the

proposition that a conviction based on unreliable scientific evidence is a due process violation.

(E.g., Doc. 37 at 16-17). First, Han Tak Lee is not binding; this Court must consider whether the

direct appellate court unreasonably applied Supreme Court precedent, not Third Circuit

precedent. Second (and interestingly), the Third Circuit’s decision does not cite a single

Supreme Court case when affirming the District Court’s grant of habeas relief based on

unreliable evidence. Id. at 166-168. And finally, Han Tak Lee does not explicitly hold that a

conviction based on unreliable scientific evidence is a due process violation. Rather, Han Tak

Lee asked whether the admission of unreliable evidence, in the form of unreliable expert

testimony, “undermined the fundamental fairness of the entire trial.” Id. at 162.

9 In Objection 4, Widmer argues that his due process claim should be reviewed de novo and

without AEDPA deference because the direct appellate court did not address the claim. As noted

by the Magistrate Judge, although the direct appellate court did not expressly address the claim,

it was nevertheless addressed along with Widmer’s Confrontation Clause claim, warranting

deference. (Doc. 40 at 16–17). See also Johnson v. Williams, 568 U.S. 289, 301 (2013) (“When

a state court rejects a federal claim without expressly addressing that claim, a federal habeas

court must presume that the federal claim was adjudicated on the merits—but that presumption

can in some limited circumstances be rebutted.”)). Indeed, a reasonable interpretation of the

direct appellate court’s decision is that Widmer’s due process rights were not violated because

there was no error when admitting the testimony. Thus, Objection 4 is not well-taken.

discussing Widmer’s insufficient evidence arguments (see Grounds 4 and 5, infra), the

state introduced the testimony of many other witnesses to support its conclusion that

Widmer murdered Sarah. (Doc. 35 at 76–77). Thus, even if Hillard’s testimony was

unreliable, Widmer has not demonstrated that the trial court’s evidentiary ruling was so

egregious as to deny fundamental fairness.10

Accordingly, Objection 1 is overruled, and the Magistrate Judge’s

recommendations are adopted on this ground. Ground 1 is rejected.

B. Ground 2 – The Bathtub: Unreasonable Search and Seizure11

The state courts unreasonably determined the facts and ruled

contrary to or unreasonably applied clearly established

Supreme Court precedent concerning Widmer’s constitutional

rights to be free from unlawful and unreasonably [sic] seizures

of his real property by permitting the State to seize the bathtub

from his house pursuant to a general “evidence or

instrumentality of the crime” or “latent fingerprint” provision

of a search warrant when the tub’s significance was known to

law enforcement at the time the search warrant is obtained and

executed, yet the tub was not particularly described in the

search warrant as an item to be seized. Seizure of real property

10 Moreover, the Court finds that Widmer has not shown that the direct appellate court’s

conclusion resulted in a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceedings. Contrary to Widmer’s assertion,

the direct appellate court did not uphold the trial court “based on the false premise that Hillard

provided testimony rooted in the same verified, established methodology as latent fingerprint

analysis.” (Doc. 41 at 16). Rather, the direct appellate court quoted Hillard’s testimony, noted

that Hillard never claimed that there was a recognized scientific process for identifying the

impressions, and found that Hillard’s testimony was based on his experience, not science. (Doc.

17-1, Ex. 2 at ¶¶ 70–74).

11 The following are full citations to frequently cited entries in the Court’s analysis of Ground 2:

Petition (Doc. 1-1 at 61–74; PageID# 77–90); Report and Recommendation (Doc. 35 at 48–

55; PageID# 10530–37); Petitioner’s Objections (Doc. 37 at 56–76; PageID# 10711–31);

Widmer Direct Appellate Court Decision (Doc. 17-1, Ex. 2 at ¶¶ 42–57; PageID# 261–69).

is unreasonable under the Fourth Amendment without

particularized, court-sanctioned authority.

(Doc. 1-1 at 60).

In Ground 2, Widmer asserts that his Fourth Amendment rights were violated

when the bathtub was seized from his home.12 (Id. at 60–74).13 The Magistrate Judge

recommends rejecting this ground because it is precluded under Stone v. Powell, 428 U.S.

465 (1976). (Doc. 35 at 48–55).

The Supreme Court in Stone held: “In sum, we conclude that where the State has

provided an opportunity for full and fair litigation of a Fourth Amendment Claim, a state

prisoner may not be granted federal habeas corpus relief on the ground that evidence

obtained in an unconstitutional search or seizure was introduced at his trial.” Stone, 428

U.S. at 494.

In Objection 13, Widmer disagrees with the Magistrate Judge’s recommendation,

suggesting that Stone stands for the proposition that a habeas corpus petition based on a

violation of Fourth Amendment rights is not precluded “when the integrity of the

evidence and judicial proceedings are at stake, and/or when the petitioner’s personal

12 The facts underlying Grounds 2 and 3 are the same, but are unnecessary for resolution of

Ground 2. Accordingly, the relevant facts are set forth in the Court’s analysis of Ground 3, infra.

13 In Objection 14, Widmer generally contends that Grounds 2 and 3 are also due process

challenges and the Magistrate Judge should have reviewed his due process claim de novo. (Doc.

37 at 75). Widmer does not articulate how this is a due process violation or cite case law to

support this point. This objection is not well-taken. The Court will consider Ground 2 and 3 as a

Fourth Amendment challenge and ineffective assistance of counsel challenge, respectively.

constitutional rights are at stake.” (Doc. 37 at 58–75 (citing Good v. Berghuis, 729 F.3d

636 (6th Cir. 2013) (interpreting Stone))). This is an erroneous reading of Stone.

Stone is clear that a habeas claim is precluded when the petitioner had a full and

fair opportunity to litigate a Fourth Amendment claim. As explained by the Sixth Circuit

in Good, this is for two reasons. First, the “key purpose” of habeas corpus is to free

innocent prisoners, and a Fourth Amendment violation “has no veering on whether a

defendant is guilty.” Good, 729 F.3d at 637 (citing Stone, 428 U.S. at 490). Second, the

purpose of excluding evidence for Fourth Amendment violations at the trial or appellate

level is for deterrence. “Any deterrence produced by an additional layer of habeas review

is small,” given its distance from the actual violation, “but the cost of undoing final

convictions is great.” Id. (citing Stone, 428 U.S. at 493).

Thus, the “‘opportunity for full and fair consideration’ [under Stone] means an

available avenue for the prisoner to present his claim to the state courts, not an inquiry

into the adequacy of the procedure actually used to resolve that particular claim.” Good,

729 F.3d at 639 (emphasis added). In other words, “[o]ur approach, and the majority

rule, asks a more basic and readily administrable question: Did the state courts permit the

defendant to raise the claim or not?” Id. at 640.

Here, the answer is yes. The procedural history indicates Widmer raised the

bathtub issue before the second trial through a motion to suppress and renewed those

same arguments when objecting to the bathtub’s admission into evidence at the third trial.

(Doc. 17-1, Ex. 2 at ¶ 42). The direct appellate court also fully considered the merits of

the bathtub seizure. (Id. at ¶¶ 39–59).

Therefore, under Stone, Widmer’s Fourth Amendment claim is precluded because

Widmer was provided the opportunity for a full and fair litigation of the claim. However,

it bears noting that this Court considers the merits of the bathtub seizure under Ground 3,

infra, and concludes that there is no merit to Widmer’s Fourth Amendment seizure claim.

Accordingly, the Magistrate Judge’s recommendations are adopted on this ground.

Ground 2 is rejected.

C. Ground 3 – The Bathtub: Ineffective Assistance of Counsel14

Trial counsel provided ineffective assistance by failing to

timely prosecute what would have been a successful motion to

suppress the bathtub and all related evidence about said tub

discovered following its unconstitutional seizure (including

Bill Hillard’s “body part impression” analysis and testimony).

In finding otherwise, the state courts unreasonably determined

the facts and ruled contrary to or unreasonably applied clearly

established Supreme Court precedent concerning the effective

assistance of counsel and the Fourth Amendment’s

“particularity” and “reasonableness” requirements.

(Doc. 1-1 at 74).

In Ground 3, Widmer contends that his trial counsel was ineffective for failing to

move to suppress the bathtub. (Id. at 74–79). The direct appellate court concluded there

was no ineffective assistance of counsel because the Fourth Amendment did not require

suppression of the bathtub, thus, any motion to suppress would have been futile. (Doc.

14 The following are full citations to frequently cited entries in the Court’s analysis of Ground 3:

Petition (Doc. 1-1 at 74–79; PageID# 90–95); Answer (Doc. 22 at 59–70; PageID# 10109–20);

Report and Recommendation (Doc. 35 at 55–66; PageID# 10537–48); Petitioner’s

Objections (Doc. 37 at 56–58, 75–76; PageID# 10711–14, 10730–31); Supplemental Report

and Recommendation (Doc. 40 at 29–41; PageID# 10800–12); Petitioner’s Supplemental

Objections (Doc. 41 at 38–49; PageID# 10866–76); Widmer Direct Appellate Court Decision

(Doc. 17-1, Ex. 2 at ¶¶ 39–59; PageID# 261–69).

17-1, Ex. 2 at ¶¶ 45–57). The Magistrate Judge recommends rejecting this ground

because the direct appellate court’s decision was not based on an unreasonable

application of Supreme Court precedent. (Doc. 35 at 64–66). To this, Widmer asserts

three proper objections to Ground 3: Objections 12, 13, and 28. (Doc. 37 at 56–75; Doc.

41 at 39). Having reviewed Ground 3 de novo, the Court finds these objections are not

well-taken. The Court expands on the Magistrate Judge’s reasoning as discussed, infra.

1. Factual Background

After Sarah’s death, investigators came to Widmer’s house in search of evidence.

(Doc. 17-1, Ex. 2 at ¶¶ 11–15). On August 13, 2008, the same day as Widmer’s arrest, a

warrant was issued, authorizing police to search for the following:

Goods, chattels, or articles, and to retrieve any evidence of

criminal activity which may be found, to wit: the wallet of

Sarah A. Widmer (Deceased); calendars; computers; computer

perherials [sic], including external hard drive(s), modums [sic],

mediums for the electronic storage of data; calendar ID(s);

safe(s) and/or lock box(es); video and/or audio recording

device(s); financial records, including credit card statements,

certificate of deposit(s), checking account record(s), saving

account record(s); birth control devices including pills and

condoms; and latent fingerprints.

(Id. at ¶ 46 (emphasis added)). A first responding officer, Officer Short, submitted an

affidavit in support of the warrant, describing his knowledge of Widmer finding Sarah in

the bathtub and the preliminary cause of death as drowning. (Id.). Officer Short also

described how injuries on Sarah’s body and inconsistent statements made by Widmer led

him to believe a crime had occurred and that evidence would be found at the home. (Id.).

Officers, led by Lt. Braley, searched Widmer’s house, including the master

bedroom and bathroom, where Widmer had found Sarah in the bathtub. (Id. at ¶ 18).

Braley dusted the bathtub for fingerprints and found streaks he thought were made by

human hands. (Id.). Braley contacted the Miami Valley Crime Lab. (Id.). The crime lab

tested the bathtub at the scene and observed fingermarks and smear marks. (Id.).

However, the crime lab could not visualize any latent fingerprints of value. (Id.).

The bathtub was then seized from the Widmer residence and sent to the crime lab

for further testing. (Id.). With further testing, the crime lab found fragmented prints.

(Id.). However, the prints lacked identifying characteristics and were deemed of no

value. (Id.). Months later, Hillard tested the bathtub, finding the body mark impressions

as discussed in Ground 1, supra. (Id. at ¶ 19).

Widmer did not move to suppress the bathtub before his first trial. (Id. at ¶ 42).

Before the second trial, Widmer’s counsel moved to suppress the bathtub. (Id.). The trial

court denied the motion to suppress, finding the motion was untimely. (Id.). Counsel did

not move to suppress the bathtub before the third trial. (Id.). Rather, during the third

trial, counsel objected to the admission of the bathtub as evidence, “preserving

[Widmer’s] objection on the motion to suppress the tub.” (Id.). The objection was

overruled, and the bathtub admitted into evidence. (Id.).

2. Last Explained State Court Decision

On direct appeal, Widmer argued his counsel was ineffective for failing to

prosecute a meritorious motion to suppress the bathtub. (Id. at ¶ 40). When considering

his ineffective assistance of counsel claim, the direct appellate court discussed the merits

of the bathtub seizure. (Id. at ¶¶ 45–57).

On the merits of the seizure, the direct appellate court concluded the seizure was

constitutional for three reasons. (Id.). First, the bathtub was within the scope of the

warrant under the “latent fingerprints” provision. (Id. at ¶¶ 48–50). Second, the bathtub

was properly seized as an instrumentality of the crime. (Id. at ¶¶ 51–54). Third, the

exclusionary rule did not apply because there was no evidence the police seized the

bathtub in bad faith. (Id. at ¶¶ 55–57). Thus, the direct appellate court concluded that,

because the seizure was not unconstitutional, trial counsel was not ineffective for failing

to bring a meritless motion to suppress. (Id. at ¶ 58).

In his petition, Widmer asserts the same ineffective assistance of counsel claim.

3. Ineffective Assistance of Counsel

Ineffective assistance of counsel claims are governed by the two-pronged

Strickland test, which requires defendants to show that: (1) counsel’s representation fell

below an objective level of reasonableness; and (2) there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 694 (1984). “Judicial scrutiny of

counsel’s performance must be highly deferential.” Id. at 689. “[A] court must indulge a

strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under

the circumstances, the challenged action might be considered sound trial strategy.” Id.

(quotation omitted). Thus, a federal court considering an ineffective assistance of

counsel claim must “use a ‘doubly deferential’ standard of review that gives both the

state court and the defense attorney the benefit of the doubt.” Burt v. Titlow, 571 U.S. 12,

15 (2013).

Ground 3 for ineffective assistance of counsel rests on the merits of the bathtub

seizure.15 Therefore, if the bathtub was unconstitutionally seized and a motion to

suppress meritorious, there is a reasonable probability that the result of the proceeding

would have been different, because the jury would not have heard the Hillard testimony

nor would the State have been able to rely on that testimony to illustrate its theory of the

offense. Conversely, if the bathtub seizure was constitutional, there is no ineffective

assistance because any motion to suppress would have been meritless.

4. Merits of the Bathtub Seizure

As mentioned, the direct appellate court found the bathtub properly seized for a

number of reasons: (1) the bathtub was within the scope of the warrant issued; (2) the

bathtub was properly seized as the instrumentality of the crime; and (3) the exclusionary

rule did not apply. (Doc. 17-1, Ex. 2 at ¶¶ 48–57).

The Magistrate Judge focused on the first reason, agreeing that the warrant was

sufficiently specific and that the police properly seized the bathtub under the warrant’s

15 At points throughout this petition, the parties disputed whether habeas counsel was also trial

co-counsel; thus, habeas counsel was essentially arguing her own ineffective assistance at trial.

In Objection 11, Widmer argues that the Magistrate Judge incorrectly concluded that habeas

counsel and trial counsel were the same. (Doc. 35 at 54–56). In the Supplemental Report, the

Magistrate Judge corrected this error. (Doc. 40 at 29). Accordingly, Objection 11 is moot.

authorization to search for “latent fingerprints.”16 (Doc. 35 at 64–66). In Objection 12,

Widmer argues this is an erroneous conclusion because the warrant was too general and

no latent prints were visualized at the scene. (Doc. 37 at 56–58). Overall, this objection

is not well-taken.

General warrants are prohibited by the Fourth Amendment.

Andresen v. Maryland, 427 U.S. 463, 479, 96 S.Ct. 2737, 49

L.Ed.2d 627 (1976). “The Fourth Amendment requires

warrants to ‘particularly describ[e] the place to be searched,

and the persons or things to be seized.’” United States v.

Blakeney, 942 F.2d 1001, 1026 (6th Cir. 1991) (citing U.S.

Const. amend. IV). “A general order to explore and rummage

through a person’s belonging is not permitted,” rather “[t]he

warrant must enable the searcher to reasonably ascertain and

identify the things which are authorized to be seized.” Id.

(citations and quotations omitted). “The degree of specificity

required depends on the crime involved and the types of items

sought.” Id.

United States v. Gardiner, 463 F.3d 445, 471 (6th Cir. 2006). The direct appellate court

cited Maryland v. Garrison, 480 U.S. 79, 84 (1987) for the same propositions and found

that the body mark impressions observed in the bathtub warranted the seizure as “latent

fingerprints.” (Doc. 17-1, Ex. 2 at ¶ 58).

As the Magistrate Judge correctly concluded, the direct appellate court’s

application of the Fourth Amendment and related precedent was not unreasonable.

Although officers could not visualize latent fingerprints at the scene, officers noticed

16 In Objection 12, Widmer first objects to the Magistrate Judge’s statement that: “Widmer does

not dispute that during the execution of the search warrant, officers dusted the bathtub and found

what appeared to be handprints inside of the tub.” (Doc. 37 at 56–58). The Court finds this part

of his objection well-taken because Widmer has disputed whether prints were found in the tub.

However, this does not change outcome of Ground 3. The remainder of Objection 12 is not

well-taken, as discussed infra.

smear and streak marks. Particularly given the location of the markings (i.e., in the

bathtub) and the nature of the investigation (i.e., an alleged bathtub drowning), this Court

cannot conclude that it was unreasonable or outside the scope of the warrant for the

officers to seize the bathtub to determine if, with further testing, latent fingerprints could

be identified.

However, even if the warrant was too general, the direct appellate court’s

conclusion that the bathtub seizure was proper as an instrumentality of the crime was not

unreasonable. (Id. at ¶ 51–52 (citing United States v. Wright, 343 F.3d 849, 863 (6th Cir.

2003) (holding “evidence not described in a search warrant may be seized if it is

reasonably related to the offense which formed the basis for the search”))). Here, the

suspected offense was an alleged homicide by drowning in the bathtub. The search

warrant specifically authorized the officers “to retrieve any evidence of criminal activity

which may be found….” (Id. at ¶ 46). It was not unreasonable for officers to consider

the bathtub, in a suspected bathtub drowning case, to be an instrument of the crime and

thereby constitute “evidence of criminal activity.”

Finally, even if the warrant was too general and even if the bathtub was not an

instrument of the crime, the direct appellate court did not unreasonably apply Supreme

Court precedent when determining that the exclusionary rule did not apply because of the

Leon good faith exception. (Id. at ¶¶ 55–57 (citing United States v. Leon, 468 U.S. 897

(1984))).

“The exclusionary rule prohibits the admission of evidence seized in searches and

seizures that are deemed unreasonable under the Fourth Amendment, as well as

derivative evidence acquired as a result of an unlawful search.” United States v.

Kennedy, 61 F.3d 494, 497 (6th Cir. 1995) (citing Wong Sun v. United States, 371 U.S.

471, 484–85 (1963)). The purpose of the exclusionary rule is to deter law enforcement

from obtaining evidence through unconstitutional means. Nix v. Williams, 467 U.S. 431,

442–43 (1984).

However, “[t]he fact that a Fourth Amendment violation occurred—i.e., that a

search or arrest was unreasonable—does not necessarily mean that the exclusionary rule

applies.” Herring v. United States, 555 U.S. 135, 140 (2009). Indeed, “[t]he Fourth

Amendment contains no provision expressly precluding the use of evidence obtained in

violation of its commands….” Leon, 468 U.S. at 906. The Supreme Court has

“repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth

Amendment violation.” Herring, 555 U.S. at 141 (noting that “exclusion ‘has always

been our last resort, not our first impulse’”) (quoting Hudson v. Michigan, 547 U.S. 586,

591 (2006)). Thus, “courts could reject suppression motions posing no important Fourth

Amendment questions by turning immediately to a consideration of the officers’ good

faith.” Leon, 468 U.S. at 925.

The direct appellate court considered these rules and concluded there was no

evidence of bad faith on the part of the officers, nor was there evidence that police “acted

with deliberate, reckless, or grossly negligent disregard of Widmer’s Fourth Amendment

rights by seizing the tub.” (Doc. 17-1, Ex. 2 at ¶ 57). In response to this conclusion,

Widmer argues that no “reasonably well-trained officer” could have believed that that the

bathtub either constituted “latent fingerprints” or was an instrumentality of the crime.

(Doc. 1-1 at 88–89).

The Court is not persuaded by Widmer’s general assertion. As the direct appellate

court recognized, there was nothing in the record to indicate bad faith on the part of the

officers. If anything, common sense dictated seizing the bathtub after: (1) visualizing the

unidentifiable marks, which markings might have contained usable fingerprints upon

further inspection; and (2) recognizing this was an alleged drowning case that occurred in

the bathtub at issue. The direct appellate court’s application of the Leon good faith

exception was not unreasonable.

Consequently, the Court now turns back to Widmer’s ineffective assistance of

counsel claim related to the bathtub. In this instance, because the bathtub seizure was not

unreasonable, any motion to suppress the bathtub would have been futile. (Doc. 17-1,

Ex. 2 at ¶ 58). Therefore, the direct appellate court did not unreasonably apply Supreme

Court precedent by concluding that Widmer’s trial counsel was not ineffective for failing

to file a futile motion. (Id.).17

Accordingly, in addition to the Court’s conclusions supra, the Court adopts the

Magistrate Judge’s recommendations on Ground 3. Ground 3 is rejected.

17 In Objection 28, Widmer argues that the Magistrate Judge erred when “adopting” the direct

appellate court’s ineffective assistance of counsel conclusion because the motion to suppress was

futile. (Doc. 41 at 39). For the reasons explained, supra, this Court independently concludes

that the motion would have been futile, and Objection 28 is overruled.

D. Ground 4 – Insufficient Evidence18

Widmer’s conviction is based on insufficient evidence in

violation of his constitutional rights to due process and a fair

trial. At most, the state presented sufficient evidence to sustain

a conviction of involuntary manslaughter or reckless homicide.

The state courts unreasonably determined the facts and ruled

contrary to or unreasonably applied clearly established

Supreme Court precedent in finding that the state presented

sufficient evidence to prove Widmer guilty of murder beyond

a reasonable doubt.

(Doc. 1-1 at 79).

The crux of Widmer’s argument for Ground 4 is that, based on all the evidence

presented at his trial, no rational juror could have found that the State proved murder

under Ohio law. (Id. at 79–82). At most, Widmer concedes, the State proved involuntary

manslaughter or reckless homicide.

For an insufficient evidence claim, the Court is required to view all the evidence

presented at trial in the light most favorable to the prosecution and, based on that

evidence, must determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. See, e.g., Jackson v. Virginia, 443 U.S.

307, 319 (1979).

The Magistrate Judge recommends rejecting this ground because, when viewing

the evidence presented at trial in favor of the prosecution, a rational trier of fact could

18 The following are full citations to cited entries in the Court’s analysis of Ground 4:

Petition (Doc. 1-1 at 79–82; PageID# 95–98); Report and Recommendation (Doc. 35 at 66–

80; PageID# 10548–62); Petitioner’s Objections (Doc. 37 at 79–80; PageID# 10734–35);

Supplemental Report and Recommendation (Doc. 40 at 45–46; PageID# 10816–17);

Petitioner’s Supplemental Objections (Doc. 41 at 51; PageID# 10878).

find the essential elements of murder under Ohio law. (Doc. 35 at 74–79). In reaching

this conclusion, the Magistrate Judge provided a detailed description of the evidence both

the State and Widmer presented at trial. (Id.).

Widmer raises two objections to this recommendation: Objections 16 and 31.

(Doc. 37 at 79–80; Doc. 41 at 51). First, he argues that the Magistrate Judge failed to

consider Ground 4 under federal law. This is simply not true. (Doc. 35 at 75–79).

Second, Widmer merely restates his prior arguments and offers a blanket rejection of the

Magistrate Judge’s recommendation. This is an improper objection. See, e.g., Howard v.

Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991) (a general statement

that the magistrate judge erred “has the same effect as would a failure to object”).

As Widmer has failed to raise any proper objection, the Court adopts the

Magistrate Judge’s recommendation on Ground 4. Ground 4 is rejected.

E. Ground 5 – Manifest Weight of Evidence19

Widmer’s conviction is against the manifest weight of

evidence. The state courts unreasonably determined the facts

and ruled contrary to or unreasonably applied clearly

established Supreme Court precedent in finding that the jury

properly weighed the evidence and resolved conflicts in the

evidence such that the State proved Widmer guilty of murder

beyond a reasonable doubt.

(Doc. 1-1 at 99).

19 The following are full citations to cited entries in the Court’s analysis of Ground 5:

Petition (Doc. 1-1 at 83; PageID# 99); Report and Recommendation (Doc. 35 at 66–80;

PageID# 10548–62).

In Ground 5, Widmer asserts that his conviction was against the manifest weight

of the evidence. (Id. at 99). The Magistrate Judge recommends rejecting this ground

because “manifest weight of evidence” is solely a state law issue and not a cognizable

habeas corpus claim. (Doc. 35 at 80). Widmer did not object. Accordingly, the Court

adopts in its entirety the Magistrate Judge’s recommendations and rejects Ground 5.

F. Grounds 6 and 7 – Braley Evidence20

GROUND 6

The state courts unreasonably determined the facts and ruled

contrary to or unreasonably applied clearly established

Supreme Court precedent by concluding: (1) that the State had

no knowledge of material information that it withheld from the

defense; and (2) that the withheld evidence pertained to a

collateral matter about which Braley never testified falsely,

thus even if disclosed, it would not have created prejudice or

affected the outcome of Widmer’s trial.

(Doc. 1-1 at 84).

GROUND 7

The state courts unreasonably determined the facts and ruled

contrary to or unreasonably applied clearly established

20 Because Grounds 6 and 7 rely on the same background, the Court will provide a single

recitation of all pertinent facts and then address the merits of the two claims in separate

subsections, infra. The following are full citations to frequently cited entries in the Court’s

analysis of Grounds 6 and 7:

Petition (Doc. 1-1 at 84–121; PageID# 100–137); Report and Recommendation (Doc. 35 at

80–132; PageID# 10562–614); Petitioner’s Objections (Doc. 37 at 26–42; PageID# 10681–97);

Supplemental Report and Recommendation (Doc. 40 at 18–22; PageID# 10789–93);

Petitioner’s Supplemental Objections (Doc. 41 at 25–37; PageID# 10858–64); Widmer

Direct Appellate Court Decision (Doc. 17-1, Ex. 2 at ¶¶ 111–38, PageID# 289–300); Widmer

Postconviction Appellate Court Decision (Doc. 20-6, Ex. 167 at ¶¶ 4–106; PageID# 2551–84);

May 5th Pretrial Hearing Transcript (Doc. 21-6 at 1–218; PageID# 4045–262); DD&M

Report (Doc. 30-2 at 1–18; PageID# 10349–66); Third Trial Testimony of Jeff Braley (Doc.

21-17 at 155–217; PageID# 8987–9049).

Supreme Court precedent by: (1) concluding that Widmer’s

postconviction petition failed to point out material information

known to the State that was withheld from the defense prior to

or during trial; and (2) denying Widmer’s due process and

confrontation claims wherein he contends that, due to the

State’s failure to disclose the information about Braley

contained in the DD&M Report, he was denied the ability to

raise a Kyles v. Whitley defense at trial challenging the integrity

of the State’s investigation and confronting Braley about the

information contained in the DD&M Report.

(Id. at 114).

In Grounds 6 and 7, Widmer contends that his constitutional rights were violated

when the State obtained a conviction using Braley’s pretrial, perjured testimony (Ground

6), and when the State failed to disclose evidence regarding Braley’s past (Ground 7).

(Id. at 84–121).

The Magistrate Judge recommends denying both grounds. (Doc. 35 at 80–132).

Widmer asserts four proper objections: Objections 5, 6, 7, and 24. (Doc. 37 at 26–42;

Doc. 41 at 25–36). Accordingly, this Court has conducted a de novo review and, for the

foregoing reasons, adopts the Magistrate Judge’s recommendations, overrules the

objections, and rejects these grounds.

1. Factual Background

Former Detective Lieutenant Jeff Braley was the lead investigator of Sarah’s

death, called to the scene on the night of her death. (Doc. 17-1, Ex. 2 at ¶ 11). Sarah’s

death was Braley’s first case as the lead investigator of a death ruled homicide. (Doc. 21-

17 at 199). As the lead investigator in charge of Sarah’s case, Braley maintained a

constant presence and some level of control in all aspects of the investigation, from

beginning to end. (E.g., Doc. 17-1, Ex. 2 at ¶¶ 11–18).

Before the second trial, Widmer’s counsel obtained copies of Braley’s 1996

employment application with Hamilton Township. (Id. at ¶ 117). This 1996 application

related to Braley’s first position with Hamilton Township as a volunteer chaplain. (Doc.

21-6 at 165). Braley was subsequently promoted to human resources in 2000, before

eventually becoming a police officer. (Id.).

Based on the employment application, Widmer’s counsel issued subpoenas to

Braley’s current and former employers, believing there were inconsistencies with

Braley’s credentials. (Id. at ¶ 118). Braley and the State moved to quash the subpoenas

and the trial court held a hearing (“the May 5th Hearing”). (Id.; see also Doc. 21-6).

At the May 5th Hearing, held one week before the opening arguments of Widmer’s

second trial, Braley testified about his 1996 employment application. (Doc. 21-6).

Specifically, Braley testified that he did not hold a master’s degree or attend college in

Florida, despite this information appearing in the application. (Doc. 17-1, Ex. 2 at ¶ 124).

Rather, Braley testified that he did not recall filling out the application, or any application

when he applied with Hamilton Township, and that most of the information on the

application about him was inaccurate. (Id. at ¶ 123). The trial court granted the motion

to quash, finding that the authenticity of the employment application was questionable

and that allowing further information at trial regarding Braley’s employment records

would mislead the jury. (Id. at ¶¶ 123–27).

Before the third trial, Widmer obtained a copy of a forensic report of Braley’s

1996 employment application which concluded that, based on handwriting analysis,

Braley’s handwriting and the handwriting on the application matched. (Id. at ¶ 131).

Widmer filed a motion to confront the lead investigator, seeking to use the 1996

employment application as a specific instance of conduct demonstrating Braley’s

character for untruthfulness. (Id.). The trial court denied the motion, concluding that any

probative value related to such questioning was outweighed by the danger of misleading

the jury or causing confusion of the issues.21 (Id. at ¶ 132).

The day after Widmer’s conviction, the Hamilton Township Trustees hired a law

firm to investigate Braley and memorialize its findings in a written report (the “DD&M

Report”).22 (Doc. 20-1, Ex. 167 at ¶ 16). The DD&M Report concluded that Braley

freely admitted that the information in the 1996 employment application contained false

information, that Braley was the author of the application, and that the application was

dated from when Braley first applied to work for Hamilton Township. (Doc. 30-2).

The DD&M Report also found that Braley repeatedly lied to colleagues about

serving in the Special Forces in the military. (Doc. 20-1, Ex. 167 at ¶ 18). The DD&M

Report found that those in the police department understood that Braley’s touted (and

21 After his conviction and on direct appeal, Widmer argued that his due process and Sixth

Amendment rights were violated when the trial court quashed his subpoenas and denied his

motion to confront Braley. The direct appellate court found no error, concluding that under Ohio

law, the trial court did not abuse its discretion by precluding Widmer from questioning Braley

about the 1996 employment application. (See Doc. 17-1, Ex. 2 at ¶¶ 135–37). It is unnecessary

for this Court to analyze that decision because it is not the last explained state court decision.

22 DD&M stands for the law firm hired to investigate Braley: Donnellon, Donnellon, & Miller.

A copy of the report is included in the record. (Doc. 30-2).

now confirmed to be false) military background earned him a lead position in the

township’s THOR Unit (the swat team), as a civilian and prior to being commissioned as

a police officer. (Id.). During the DD&M investigation, Braley denied having ever told

others that he was in Special Forces, contrary to the recollection of numerous individuals.

(Id.). The DD&M Report concluded that, although Braley’s false application and

statements about his background did not have a particular impact on the Township and

never subjected the Township to liability, his conduct provided enough “evidence for the

Township to move forward with a pre-disciplinary hearing.” (Id. at ¶ 19).23

2. Last Explained State Court Decision

The last explained state court decision on the Braley evidence and related to these

grounds comes from Widmer’s postconviction appeal. (Id. at ¶¶ 38–103). During his

postconviction appeal, Widmer argued that the State violated his due process rights by

attaining a conviction through the use of Braley’s perjured May 5th Hearing testimony,

violating Napue v. Illinois. 360 U.S. 264 (1959), as well as failing to turn over evidence

related to Braley and favorable to the defense, violating Brady v. Maryland, 373 U.S. 83

(1963). The postconviction appellate court denied both claims. (Id.).

On the Napue claim, the postconviction appellate court determined that Braley’s

statements at the May 5th Hearing were not actually false, but at most mere

23 In his postconviction petition, Widmer obtained a police practices expert, Dennis Waller, who

concluded Braley lacked qualifications and asserted undue influence over the Widmer

investigation. (Doc. 30-3). The postconviction appellate court declined to consider the affidavit,

finding it merely restated the information in the DD&M Report in a manner more favorable to

Widmer. (Doc. 20-1, Ex. 167 at ¶ 52). This Court does not rely on the Waller affidavit to reach

its conclusions.

inconsistencies or lack of memory, and, even if his statements were false, the statements

made at the May 5th Hearing were not material to the judgement of the jury at the third

trial. (Id. at ¶¶ 41, 77, 85).

When the postconviction appellate court considered Widmer’s Brady claim, the

court concluded that: (1) the evidence related to Braley’s background was not

exculpatory, or had too little impeachment value to be material; (2) the prosecution did

not suppress any evidence because the DD&M report was produced after the third trial;

and (3) the evidence was not material because Widmer had the opportunity to cross

Braley. (Id. at ¶¶ 93, 96, 101–2).

In this habeas petition, Widmer asserts the same constitutional arguments.

3. Napue Claim (Ground 6)

Widmer argues he is entitled to relief under the Supreme Court’s decision in

Napue. (Doc. 1-1 at 84). Widmer contends that Braley’s testimony at the May 5th

Hearing was false, thus, the prosecution violated Napue because it knew the testimony

was false, did not correct it, and attained a conviction through the use of Braley’s

perjured testimony.

Under Napue, due process is violated when the government attains a conviction

using perjured or false testimony. Explained further by the Supreme Court:

As long ago as Mooney v. Holohan (1935), this Court made

clear that deliberate deception of a court and jurors by the

presentation of known false evidence is incompatible with

rudimentary demands of justice. … In Napue, we said, the

same result obtains when the State, although not soliciting false

evidence, allows it to go uncorrected when it appears.

Thereafter Brady held that suppression of material evidence

justifies a new trial irrespective of the good faith or bad faith

of the prosecution. When the reliability of a given witness may

well be determinative of guilt or innocence, nondisclosure of

evidence affecting credibility falls within this general rule. We

do not, however, automatically require a new trial whenever a

combing of the prosecutor’s files after the trial has disclosed

evidence possibly useful to the defense but not likely to have

changed the verdict. A finding of materiality of the evidence

is required under Brady. A new trial is required if the false

testimony could in any reasonable likelihood have affected the

judgment of the jury.

Giglio v. United States, 405 U.S. 150, 153–54 (1972) (quotations and citations omitted).

With these principles in mind, the Sixth Circuit has outlined a three-part test that a

petitioner must satisfy to demonstrate his conviction was attained through the use of false

testimony: “(1) ‘the statement was material;’ (2) ‘the statement was actually false’; and

(3) ‘the prosecution knew it was false.’” Woods v. Booker, 450 F. App’x 480, 486 (6th

Cir. 2011) (quoting Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998)).

The postconviction appellate court applied this test, finding: (1) Braley’s

statements at the May 5th Hearing were not actually false, but at most mere

inconsistencies; and (2) even if his statements were false, the statements made at the May

5th Hearing were not material to the judgement of the jury at the third trial. (Doc. 20-1,

Ex. 167 at ¶¶ 41, 77, 85). The postconviction appellate court did not determine whether

knowledge of Braley’s statements could be imputed on the State, finding the other two

elements unsatisfied, but had “serious doubts” of imputed knowledge. Id. at ¶ 86.

After review, the Court cannot conclude that the postconviction appellate court

unreasonably applied Napue or that Widmer has shown that the Napue finding was the

result of an unreasonable determination of the facts in light of the evidence presented in

the state court proceedings. Even taking Braley’s testimony at the May 5th Hearing as

false—which Widmer argues is the reasonable determination of facts—there is no

evidence that the prosecution attained a conviction using that false testimony at trial. The

jury was not presented with the May 5th Hearing testimony, nor any false testimony

regarding Braley’s background.24 Therefore, it cannot be said that the State used

Braley’s perjured testimony to attain a conviction.

Accordingly, Ground 6 is rejected.

4. Brady Claim (Ground 7)

Next, Widmer argues that the postconviction appellate court erred when

concluding that the State’s failure to disclose the Braley evidence did not amount to a

violation of Brady, leading to a violation of Widmer’s due process or Confrontation

Clause rights. (Doc. 1-1 at 114).

“Under the Due Process Clause of the Fourteenth Amendment, criminal

prosecutions must comport with prevailing notions of fundamental fairness,” which

includes the defendant’s right to a “meaningful opportunity to present a complete

defense.” California v. Trombetta, 467 U.S. 479, 485 (1984). To safeguard that right,

the Supreme Court has developed “what might loosely be called the area of

24 The Court would be remiss if it did not point out the prosecution’s seemingly sharp tactics to

avoid a Napue violation. Specifically, the prosecution effectively omitted any discussion of

Braley’s background, asking him a total of three background questions and shutting the door on

Braley’s perjured testimony. (Doc. 21-17 at 155). Indeed, these three questions were

outstandingly minimal compared to background questions elicited from other officers. (E.g.,

Doc. 21-16 at 81–82, 333–36, 1067–68). And, although this Court does not condone such

tactics, the Court cannot conclude that such tactics give rise to a Napue violation.

constitutionally guaranteed access to evidence.” Id. (quoting United States v. Valenzuela-

Bernal, 458 U.S. 858, 867 (1982)). “Taken together, this group of constitutional

privileges delivers exculpatory evidence into the hands of the accused, thereby protecting

the innocent from erroneous conviction and ensuring the integrity of our criminal justice

system.” Id.

Within this context, the Supreme Court held in Brady that “the suppression by the

prosecution of evidence favorable to an accused upon request violates due process where

the evidence is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.” Brady, 373 U.S. at 87. Disclosure of impeachment

evidence, as well as exculpatory evidence, is required under Brady. United States v.

Bagley, 473 U.S. 667, 676 (1985). Indeed, the Supreme Court has held that “suppression

of material evidence justifies a new trial irrespective of the good faith or bad faith of the

prosecution.’ … When the ‘reliability of a given witness may well be determinative of

guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this

general rule.” Giglio, 405 U.S. at 153–54 (citations omitted).

Additionally, the Supreme Court has held that the duty to disclose “encompasses

evidence ‘known only to police investigators and not to the prosecutor.’” Strickler v.

Greene, 527 U.S. 263, 280–81 (1999) (quoting Kyles v. Whitley, 514 U.S. 419, 438

(1995)). Therefore, to comply with Brady, “the individual prosecutor has a duty to learn

of any favorable evidence known to the others acting on the government’s behalf

including the police.” Id. at 281 (quoting Kyles, 514 U.S. at 437) (emphasis added).

However, “[t]he mere possibility that an item of undisclosed information might

have helped the defense, or might have affected the outcome of the trial, does not

establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. 97,

109 (1976). Evidence is “material” within the meaning of Brady “only if there is a

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

the proceeding would have been different.” Bagley, 473 U.S. at 682. “The question is

not whether the defendant would more likely than not have received a different verdict

with the evidence, but whether in its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434. Therefore, if “the

favorable evidence could reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict,” the evidence is material and thus

satisfies Brady. Strickler, 527 U.S. at 290 (quoting Kyles, 514 U.S. at 435).

Through extensive arguments and objections, the Court summarizes Widmer’s

Brady claim as follows: Had Widmer possessed and been able to use evidence related to

Braley’s dishonest background, memorialized by the DD&M report, there is a reasonable

probability that the outcome of Widmer’s trial would have been different because

Widmer would have been able to mount what he terms a “Kyles defense,” i.e., he would

have been able to sully the credibility of Braley as the lead investigator, casting doubt on

the reliability of the entire police investigation, and leading to a different outcome. (E.g.,

Doc. 1-1 at 114-15; Doc. 37 at 38-42).

The postconviction appellate court discussed this argument when analyzing

Widmer’s Brady claim. (Doc. 20-1, Ex. 167 at ¶¶ 99–102). Specifically, assuming that

the Braley evidence was both favorable and suppressed, the postconviction appellate

court determined that, “even if the allegedly suppressed evidence in the DD&M report

could have helped the defense cast some doubt on the police investigation under Kyles, it

[was] not enough to establish materiality” because, “even without this information,

Widmer had the opportunity to cross-examine Braley and the numerous other witnesses

about the investigation from start to finish.” (Id. at ¶ 101). According to the

postconviction appellate court, “it [was] simply untenable to believe that the suppression

was the reason for Widmer’s scant questioning on this matter, or that disclosing Braley’s

alleged misconduct would have cast sufficient doubt in the jury’s mind about the

investigation so as to generate a reasonable probability of a different result.” (Id.) And

similarly, to the extent the Braley evidence was “severely impeaching,” “there [was] no

reasonable probability that impeaching Braley would have resulted in a different

outcome,” given all the other evidence and witnesses in the case. (Id. at ¶ 102).

The postconviction appellate court concluded:

In sum, even if we assume that the information on Braley

should have been disclosed, when we review the record as a

whole, we cannot conclude that our confidence in the verdict

has been undermined. See Bagley, 473 U.S. at 682. In other

words, there is not a reasonable probability that the outcome of

Widmer’s trial would have been different, had the evidence in

the DD&M report been disclosed. Id.

(Id. at ¶ 103).

Given the foregoing, this Court cannot say that the postconviction appellate

court’s adjudication of this claim was contrary to or an unreasonable application of

Supreme Court precedent. Moreover, to the extent Widmer makes a factual argument, he

has not shown that the postconviction appellate court’s adjudication of the claim resulted

in a decision based on an unreasonable determination the facts in light of the evidence

presented in the state court proceedings. Indeed, the postconviction appellate court made

numerous factual assumptions in Widmer’s favor when reaching its Brady, including

assuming that the evidence was favorable and that the prosecution suppressed it.

Accordingly, the Court adopts the Magistrate Judge’s recommendations on

Ground 7. Ground 7 is rejected.

G. Ground 8 – Braley Evidence, Ineffective Assistance of Counsel25

The state courts unreasonably determined the facts and ruled

contrary to or unreasonably applied clearly established

Supreme Court precedent by concluding that no prejudice to

Widmer resulted from the newly discovered evidence about

Braley from the DD&M Report, and thus that the trial counsel

provided constitutionally effective assistance despite failing to

raise at trial the new evidence about Braley (if in fact such

evidence was disclosed to counsel prior to or during trial).

(Doc. 1-1 at 122) (emphasis added).

Ground 8 poses a hypothetical – if, prior to the third trial, Widmer’s trial counsel

was provided with all of the evidence regarding Braley’s background (i.e., the

information subsequently memorialized in the DD&M report), then trial counsel was

ineffective for failing to act on the Braley evidence. (Id.).

25 The following are full citations to cited entries in the Court’s analysis of Ground 8:

Petition (Doc. 1-1 at 122; PageID# 138); Report and Recommendation (Doc. 35 at 133–34;

PageID# 10615–16).

The Magistrate Judge recommends rejecting this ground. (Doc. 35 at 133–34).

Widmer did not object. Accordingly, given Widmer’s failure to object and because

Ground 8 is posed as a hypothetical, the Court concurs with the Magistrate Judge’s

recommendations. Ground 8 is rejected.

H. Grounds 9 – Postconviction DNA Testing26

The state courts unreasonably determined the facts and ruled

contrary to or unreasonably applied clearly established

Supreme Court precedent by denying Widmer’s

postconviction request for genetic DNA testing of Sarah

Widmer’s biological remains to determine if she suffered from

a genetic disorder, particularly when testing was necessary to

fairly adjudicate Widmer’s state postconviction claim of

ineffective assistance of trial counsel for failure to pursue

testing. Additionally, the state courts unreasonably determined

the facts and ruled contrary to or unreasonably applied clearly

established Supreme Court precedent by concluding that

genetic DNA test results suggesting that Sarah suffered from a

genetic disorder that may have caused her to drown in the

bathtub would not establish a reasonable probability of a

different outcome at trial.

(Doc. 1-1 at 123).

In Ground 9, Widmer argues that his due process and equal protection rights were

violated when the trial court denied his postconviction request to test Sarah’s DNA,

26 The following are full citations to frequently cited entries in the Court’s analysis of Ground 9:

Petition (Doc. 1-1 at 123–38; PageID# 139–154); Report and Recommendation (Doc. 35 at

134–54; PageID# 10616–36); Petitioner’s Objections (Doc. 37 at 43–54; PageID# 10698–709);

Supplemental Report and Recommendation (Doc. 40 at 22–29; PageID# 10793–800);

Petitioner’s Supplemental Objections (Doc. 41 at 37; PageID# 10864); Widmer

Postconviction Appellate Court Decision (Doc. 20-1, Ex. 167 at ¶¶ 110–47, PageID# 2585–

96).

which decision the postconviction appellate court affirmed. (Id. at 123–35). The

Magistrate Judge recommends rejecting this ground. (Doc. 35 at 146–52).

Widmer asserts two proper objections: Objections 8 and 9. (Doc. 37 at 43–54).

Having reviewed the argument de novo, the Court agrees with the Magistrate Judge’s

conclusion and finds that the postconviction appellate court’s decision was not an

unreasonable application of federal law. The Court expands on the Magistrate Judge’s

reasoning, infra.

1. Factual Background

At trial, Widmer presented testimony from friends and family that Sarah had a

history of constantly being tired, falling asleep often, and taking naps throughout the day.

(Doc. 17-1, Ex. 2 at ¶ 28). Sarah also suffered from a heart murmur and a cleft pallet as a

child. (Id. at ¶ 32). Widmer contends that this medical background, coupled with

Sarah’s narcolepsy-like symptoms, suggests that Sarah suffered from a genetic syndrome

called Long QT. (Doc. 1-1 at 124).

Before trial, Sarah’s DNA was not tested for Long QT. (Doc. 20-1, Ex. 167 at

¶ 112). Widmer’s counsel did, however, elicit testimony from multiple experts about

Long QT at the third trial. Specifically, the experts testified that Sarah’s symptoms could

indicate that she suffered from Long QT. (Id. at ¶ 135; Doc. 35 at 152–53).

Additionally, the experts testified that individuals with Long QT may be more susceptible

to sudden cardiac arrest and death. (Doc. 20-1, Ex. 167 at ¶ 135, fn. 13).

Postconviction, the trial court granted Widmer’s motion to preserve Sarah’s DNA,

pursuant to Ohio Rev. Code § 2933.82. (Id. at ¶ 112). At this stage, Widmer provided

the affidavit of an expert who opined that there is a high association between accidental

drowning and Long QT. (Doc. 20-1, Ex. 152 at 23). However, the trial court denied

Widmer’s postconviction request to test Sarah’s DNA for Long QT. (Id.).

2. Last Explained State Court Decision

In his postconviction appeal, Widmer challenged the constitutionality of Ohio’s

postconviction DNA testing statutory framework. (Id. at ¶ 137). Specifically, Ohio’s

postconviction statutory scheme permits offenders to apply for postconviction DNA

testing, in order to compare genetic material found at the crime scene, with the offenders’

own DNA. Ohio Rev. Code § 2953.71–.81. Thus, under Ohio’s statute, the parent

sample of the DNA collected from the scene must be compared to the eligible offender.

Id. at § 2954.74(C).

An Ohio state court may only accept an eligible offender’s application for

postconviction testing if either: (1) the DNA test result would have been outcome

determinative and DNA testing was not generally accepted, available, or admissible at the

time of the trial; or (2) the DNA was tested but the prior result was not definitive at the

time of trial and the new test result would be outcome determinative. Id. at § 2953.74(B).

An “outcome determinative” result means that, had the DNA test been conducted and had

the results been admitted at trial, there is a “strong probability that no reasonable

factfinder would have found the offender guilty.” Id. at § 2953.71(L).

Ohio’s postconviction DNA statutory testing scheme also recognizes that the

application process described in § 2953.71 through § 2953.81 is not the “exclusive means

by which an inmate may obtain postconviction testing.” Id. § 2953.84. Although this

section provides no alternatives, nor examples of other means to be granted testing,

Widmer argued that his postconviction request for victim DNA testing could fall under

this catch-all.

Interpreting Ohio’s collective DNA testing statutes, the postconviction appellate

court first considered whether Widmer fell under the application procedure set forth

under § 2953.71 through § 2953.81. (Doc. 20-1, Ex. 167 at ¶¶ 114–36). The court

answered “no” because those sections do not provide for postconviction testing of a

victim’s DNA, but only tests to compare the DNA of the eligible offender to evidence

from the scene, in order to prove the offender did not commit the crime.

The postconviction appellate court also concluded that Widmer did not qualify for

testing under § 2953.84, finding his request was asking for the broadest possible reading

of the statutory scheme. (Id. at ¶¶ 128–31). The court stated further that Ohio’s statutes

did not embrace victim DNA testing, that Widmer’s suggested interpretation would

disrupt the entire postconviction DNA testing framework, and that any changes to the

reading should be left to the General Assembly. (Id.).

The postconviction appellate court also considered Widmer’s argument that

Ohio’s postconviction DNA testing statutes violated due process or equal protection. (Id.

at ¶¶ 137–47). First, the court concluded there was no substantive due process violation

because the Supreme Court does not recognize a substantive due process right to

postconviction DNA testing. (Id. at ¶ 140 (citing Dist. Attorney’s Office for Third Judicial

Dist. v. Osborne, 557 U.S. 52, 68 (2009)). Second, the postconviction appellate court

concluded there was no procedural due process deprivation because, under Ohio’s

postconviction DNA testing statute, Widmer had no liberty or property interest in

postconviction victim DNA testing. (Id. at ¶¶ 141–42 (citing Olim v. Wakinekona, 461

U.S. 238 (1983)). Finally, the postconviction appellate court concluded there was no

equal protection violation because Widmer was not similarly situated to the eligible

offenders who can test DNA postconviction under Ohio statute. (Id. at ¶¶ 144–45).

Widmer presents these same constitutional challenges in his habeas petition.

3. Constitutional Rights

The crux of Widmer’s federal arguments and objections is that he should be

entitled to postconviction DNA testing of a victim’s DNA, because such a test would

vindicate his substantive right to prove himself innocent. (Doc. 1-1 at 123–35; Doc. 37 at

43–50). He argues that Ohio’s postconviction statutory scheme, as described above, does

not afford him due process or equal protection under the law despite the fact that he, like

eligible offenders under § 2953.71 through § 2953.81, is seeking postconviction testing

which has a strong probability of being outcome determinative and changing the result of

his trial. (Id.). In essence, he argues that his reasoning to test a victim’s DNA falls under

the spirit of the statute, and he should therefore be allowed to test Sarah’s DNA for Long

QT. (Id.).

Widmer’s arguments and objections are not well-taken.

To comport with due process, the Supreme Court in Osborne stated that: “Federal

courts may upset a State’s postconviction relief procedures only if they are fundamentally

inadequate to vindicate the substantive rights provided.” 557 U.S. at 69 (emphasis

added). When considering whether the postconviction procedure is fundamentally

inadequate, “the question is whether consideration of [the petitioner]’s claim within the

framework of the State’s procedures for postconviction relief ‘offends some principle of

justice so rooted in the traditions and conscience of our people as to be ranked as

fundamental,’ or ‘transgresses any recognized principle of fundamental fairness in

operation.’” Id. at 69 (quoting Medina v. California, 505 U.S. 437, 446 (1992)).

Under Osborne, if Widmer were actually able to prove himself innocent with the

postconviction testing of Sarah’s DNA, but was denied access to postconviction DNA

testing due to Ohio’s statutory limitations, Widmer would be entitled to relief. That is –

Ohio’s postconviction relief procedure would be fundamentally inadequate to vindicate

Widmer’s substantive right to prove his actual innocence.27

However, the problem with Widmer’s argument, and why this ground will be

rejected, is that Widmer’s request would not actually prove innocence. Thus, his

proposed postconviction DNA test would not vindicate a substantive right, and the

postconviction appellate court’s decision was not an unreasonable application of Supreme

Court precedent.

27 The Court notes that if the evidence proved innocence, Widmer may have been able to seek

other postconviction relief. See, e.g., Ohio Rev. Code § 2951.21 (petition for postconviction

relief when showing actual innocence and allowing reasonable discovery in postconviction

petition); Ohio Crim. R. 33 (grounds for new trial, including newly discovered evidence).

Compare Osborne, 557 U.S. at 69–70 (“We see nothing inadequate about the procedures Alaska

has provided to vindicate its state right to postconviction relief in general, and nothing

inadequate about how those procedures apply to those who seek access to DNA evidence.

Alaska provides a substantive right to be released on a sufficiently compelling showing of new

evidence that establishes innocence. It exempts such claims from otherwise applicable time

limits. The State provides for discovery in postconviction proceedings and has—through judicial

decision—specified that this discovery procedure is available to those seeking access to DNA

evidence.”).

In other words, what Widmer seeks is not evidence that conclusively shows that he

did not commit the crime. What Widmer seeks is not newly discovered evidence,

unavailable or unknown at trial, that tends to prove innocence. Instead, Widmer seeks to

determine whether Sarah might have suffered from a health condition at the time of her

death, which in turn could possibly provide another explanation for her death. However,

even assuming the DNA test proved that Sarah had Long QT, there is still no definitive

evidence that Long QT actually caused her death. In other words, a diagnosis of Long

QT would not, in any way, preclude Sarah from having been murdered, nor would it

preclude a finding that Widmer was responsible. The Court cannot upset Ohio’s

postconviction DNA testing statutory scheme, or the postconviction appellate court’s

interpretation of the statutes and reasonable application of Supreme Court precedent, for

a possible alternative theory on a victim’s cause of death.

Moreover, Widmer is not similarly situated to statutorily eligible offenders. In

Objection 10, Widmer disagrees with this conclusion, arguing there is no difference

between a wrongfully convicted offender comparing his own DNA to evidence at the

scene to prove he is actually innocent of the crime, versus a wrongfully convicted

offender using a victim’s DNA test to prove that no crime actually occurred. (Doc. 37 at

50–54). Alternatively, Widmer argues there is no legitimate state interest when drawing

a line between the two groups because both are trying to prove actual innocence. (Id.).

The Court agrees with Widmer’s overarching argument – these two groups are

similarly situated in proving actual innocence, and there would be no legitimate interest

in drawing a distinction between offenders proving that another person committed the

crime, versus offenders proving that no actual crime occurred. However, contrary to

Widmer’s assertion, he does not fall into the latter camp. As the Court just explained,

Widmer intends to use the postconviction testing to determine if Sarah suffered from an

underlying condition that might provide a possible alternative explanation for her cause

of death. Thus, Widmer’s proposed postconviction DNA testing would not prove that no

crime occurred, nor would it prove Widmer’s actual innocence.

Therefore, this Court finds that Ohio’s postconviction DNA processes are not

fundamentally inadequate to vindicate Widmer’s substantive rights, and the

postconviction appellate court’s rejection of Widmer’s due process and equal protection

claims was not an unreasonable application of Supreme Court precedent.

Accordingly, Ground 9 is rejected.

I. Ground 10 – DNA Testing and Ineffective Assistance of Counsel

The state courts unreasonably determined the facts and ruled

contrary to or unreasonably applied clearly established

Supreme Court precedent in Strickland, Wiggins, and

Chambers by concluding that trial counsel rendered

constitutionally effective assistance, despite failing to pursue

genetic DNA testing, because, according to the state courts,

test results suggesting that Sarah suffered from a genetic

disorder that caused her to drown in the bathtub would not

establish a reasonable probability of a different outcome at trial

as necessary to establish prejudice under Strickland.

(Doc. 1-1 at 135).28

28 The facts and background underlying Ground 10 are the same as Ground 9. The parties and

the Magistrate Judge also treat Grounds 9 and 10 together. The relevant facts and pertinent

record cites are set forth in the Court’s analysis of Ground 9, supra.

In essence, Ground 10 argues that Widmer’s trial counsel was ineffective for

failing to seek testing of Sarah’s DNA before the third trial. (Id. at 135–38). The

postconviction appellate court determined that Widmer’s trial counsel was not

constitutionally ineffective, because counsel elicited testimony about Long QT from

experts at the third trial. (Doc. 20-1, Ex. 167 at ¶¶ 132–36). Thus, the postconviction

appellate court reasoned that there was no ineffective assistance of counsel because the

jury heard evidence of Long QT and was simply unpersuaded by it. (Id. at ¶ 135).

The Magistrate Judge concluded that the postconviction appellate court’s decision

was not an unreasonable application of Supreme Court precedent. The Magistrate Judge

therefore recommends rejecting Ground 10, because counsel was not ineffective for

pursuing a trial strategy that alluded to the genetic syndrome as an alternate cause of

death, but did not offer a positive (or negative) test result. (Doc. 35 at 152–54).

In Objection 9, Widmer argues that the recommendation reaches an incorrect

conclusion because counsel’s decision to not test Sarah’s DNA before trial amounts to

prejudice under Strickland, 466 U.S. at 694. (Doc. 37 at 50–54). This objection is not

well-taken.

As previously set forth, supra, the Court must apply the Strickland standard to a

claim of ineffective assistance of counsel. And the Court reemphasizes that “[j]udicial

scrutiny of counsel’s performance must be highly deferential.” Id. at 689. “[A] court

must indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action might be considered sound trial

strategy.” Id. (internal quotation omitted).

Here, trial counsel elicited testimony about Long QT from three different medical

doctors. (Doc. 35 at 152–53). Thus, Widmer’s counsel did not fail to pursue an

evidentiary lead – counsel was well-aware of Long QT and elicited testimony about it.

Nevertheless, Widmer contends that counsel was ineffective for failing to test for

Long QT prior to trial, because a positive Long QT test would necessarily be material and

would have changed the outcome of the trial.

The flaw in Widmer’s argument is that he assumes the test result would have been

positive – but, what if it wasn’t? Had counsel conducted the test pretrial, and if it the test

definitively proved that Sarah did not suffer from Long QT, counsel would have been

precluded from eliciting any testimony of Long QT. Thus, by not obtaining the test

results pretrial, Widmer’s counsel was able to present the jury with an alternative theory

for Sarah’s death.

Given the strong presumption in favor of the reasonableness of counsel’s

assistance, the Court cannot say that foregoing a pretrial DNA test was counsel’s error, as

opposed to sound trial strategy.

Accordingly, the Court adopts the Magistrate Judge’s recommendations on

Ground 10. Ground 10 is rejected.

J. Ground 11 – Access to Grand Jury Testimony29

The state courts unreasonably determined the facts and ruled

contrary to or unreasonably applied clearly established

Supreme Court precedent by denying Widmer access to the

grand jury testimony of Braley and Uptegrove, or at a

minimum an in camera inspection of said testimony, when

Widmer demonstrated a particularized need for access to the

testimony for a review of: (1) whether Braley made any false

statements to the grand jury which would support his Brady,

Kyles, and Napue claims; and (2) whether the testimony of

either witness reveals what information, or the extent to which,

Braley supplied information about the case to Uptegrove that

he considered in his determination that Sarah Widmer drowned

as a result of homicide. This error occurred in violation of

Widmer’s procedural and substantive due process rights under

the U.S. Constitution including meaningful access to the

courts.

(Doc. 1-1 at 139).

In Ground 11, Widmer contends that the postconviction appellate court violated

his due process rights and his rights under the Confrontation Clause when the court

affirmed the trial court’s denial of his postconviction request for the grand jury testimony

of Braley and Dr. Uptegrove (the State’s coroner). (Id. at 139–45). Widmer argues that

Braley and Dr. Uptegrove’s grand jury testimony further his Brady/Napue claims

(Grounds 6, 7) because the testimony would continue to show Braley’s dishonesty and

influence on the investigation.

29 The following are full citations to frequently cited entries in the Court’s analysis of Ground 11:

Petition (Doc. 1-1 at 139–50; PageID# 155–62); Report and Recommendation (Doc. 35 at

154–58; PageID# 10636–40); Petitioner’s Objections (Doc. 37 at 76–78; PageID# 10731–33);

Supplemental Report and Recommendation (Doc. 40 at 41–45; PageID# 10812–16);

Petitioner’s Supplemental Objections (Doc. 41 at 49–50; PageID# 10876–77); Widmer

Postconviction Appellate Court Decision (Doc. 20-1, Ex. 167 at ¶¶ 150–59, PageID# 2596–

99).

The Magistrate Judge recommends denying this ground. (Doc. 35 at 154–58).

Widmer asserts two proper objections: Objections 15 and 30. (Doc. 37 at 76–78; Doc. 41

at 49–50). Having reviewed this ground de novo, the Court agrees with the conclusions

reached by the Magistrate Judge. However, the Court expands on the Magistrate Judge’s

reasoning as discussed, infra.

1. Factual Background

At the postconviction stage, Widmer moved to compel the grand jury testimony of

Braley and Dr. Uptegrove following the revelation of Braley’s dishonest job history,

discussed supra. (Doc. 20-1, Ex. 167 at ¶ 151). Braley was, of course, the lead

investigator in the case against Widmer. Dr. Uptegrove, the Warren County Coroner who

testified at the grand jury proceeding, performed Sarah’s autopsy for the State. (Doc. 17-

1, Ex. 2 at ¶ 16). Dr. Uptegrove determined cause of death as drowning and that bruises

on Sarah’s body were inconsistent with aggressive resuscitation efforts. (Id.). Thus, he

concluded Sarah’s death was a homicide. (Id.)

Braley was also present during the autopsy. (Id.). And, at trial, Braley testified

that before beginning the investigation he already thought “something bad, really bad”

happened at the Widmer residence. (Doc. 1-1 at 144). Widmer contends that Braley

brought this mindset to Dr. Uptegrove before the autopsy and findings were complete,

thereby improperly influencing Dr. Uptegrove’s homicide conclusion. (Id.).

Accordingly, following the full revelations in the DD&M Report of Braley’s

background, Widmer moved to compel the grand jury testimony of Braley and Dr.

Uptegrove after trial, arguing that he had a particularized need for the testimony to

further evidence his Brady/Napue claim. (Doc. 20-1, Ex. 167 at ¶¶ 150–59).30

2. Last Explained State Court Decision

In his postconviction appeal, Widmer argued that the trial court violated his due

process rights and his right to access the courts. (Id. at ¶ 150).31 The postconviction

appellate court overruled Widmer’s assignment of error under Ohio Crim. R. 6(e),

determining Widmer had not shown a particularized need for the grand jury testimony

that outweighed the need to maintain secrecy. (Id. at ¶¶ 150–59). The postconviction

appellate court also determined that Widmer had not explained how the trial court’s

failure to compel production, or to conduct an in camera review of the grand jury

testimony, deprived him of a fair adjudication. (Id. at ¶ 156).

In this habeas petition, Widmer argues the same constitutional issues and further

argues that denying his access to the grand jury testimony postconviction deprived him of

his rights under the Confrontation Clause.

3. Access to Grand Jury Testimony

The Magistrate Judge recommends rejecting this ground as a state law claim,

inappropriate for a habeas petition. (Doc. 35 at 157). Alternatively, even if the ground is

30 After extensive review of the record, this Court found no evidence that Widmer requested the

grand jury testimony before the third trial or during the third trial, the operative trial in this

habeas petition.

31 The trial court did not specifically overrule Widmer’s postconviction request for grand jury

testimony; accordingly, the postconviction appellate court presumed the request denied. (Id. at ¶

150).

a federal constitutional claim, Widmer has not demonstrated an unreasonable application

of Supreme Court precedent. (Id. at 158; Doc. 40 at 42–45).

In Objections 15 and 30, Widmer argues the Magistrate Judge’s conclusion is

incorrect because the Supreme Court has established a constitutional right to grand jury

testimony upon either: (1) a showing of particularized need, under United States v.

Proctor & Gamble, 356 U.S. 677 (1958); or (2) when the ends, such as showing a Brady

violation and mounting a Kyles defense, justify the means, under Dennis v. United States,

384 U.S. 855 (1966). (Doc. 37 at 76–78; Doc. 41 at 49–50). Thus, Widmer contends, the

postconviction appellate court unreasonably applied Supreme Court precedent when

denying his request for Braley and Dr. Uptegrove’s grand jury testimony, violating his

due process and Confrontation Clause rights.

These objections are not well-taken. The problem with Widmer’s due process and

Confrontation Clause argument is that Widmer is seeking Braley and Dr. Uptegrove’s

grand jury testimony post-conviction.

Widmer did not request the testimony before or during the third trial. Had that

request been made, and had the trial court denied that request, Widmer may have been

able to present a successful due process and Confrontation Clause claim. Widmer could

have then, for example, argued that the trial court’s evidentiary ruling was an error so

egregious as to give rise to a due process violation, or that he was denied the ability to

adequately confront Braley and Dr. Uptegrove on cross-examination.

However, because Widmer did not seek the grand jury transcripts in advance of or

during his third trial, he is not arguing that the trial court erred in depriving him of a fair

trial nor that the trial court unreasonably denied him the means to mount his defense.

Rather, Widmer’s request essentially assumes that he is headed to a fourth trial, and he

asks this Court to issue an effectively advisory opinion, finding that he should have been

given Braley and Dr. Uptegrove’s testimony as Brady material, after his conviction, but

in anticipation of his future needs.

Accordingly, the Court agrees with the Magistrate Judge that Widmer is asserting

a state law claim, not cognizable in habeas, and rejects Ground 11.

K. Ground 12 – Denying Post-Conviction Hearing32

The state courts unreasonably determined the facts and ruled

contrary to or unreasonably applied clearly established

Supreme Court precedent by denying Widmer’s October 12,

2011 postconviction petition without a hearing because the

petition and material appended to it demonstrated a prima facie

case of constitutional violations, thus warranting a hearing.

This error occurred in violation of Widmer’s procedural and

substantive due process rights under U.S. Constitution

including meaningful access to the courts.

(Doc. 1-1 at 146).

Ground 12 argues that the trial court erred by denying his postconviction petition

on the Braley evidence and DNA testing without a hearing. (Id. at 146–49). The

Magistrate Judge recommends rejecting this ground because a “ground for relief that

challenged the correctness of a state judicial proceeding and does not dispute the

detention itself is not cognizable in habeas.” (Doc. 35 at 158–59 (citing Kirby v. Dutton,

32 The following are full citations to cited entries in the Court’s analysis of Ground 12:

Petition (Doc. 1-1 at 146–49; PageID# 162–65); Report and Recommendation (Doc. 35 at

158–59; PageID# 10640–59).

974 F.2d 245, 247 (6th Cir. 1986)). Widmer did not object. Accordingly, the Court

adopts the Magistrate Judge’s recommendations and Ground 12 is rejected.

L. Certificate of Appealability

After concluding that Widmer is not entitled to relief on any ground, the

Magistrate Judge recommends denying Widmer a certificate of appealability because any

appeal would be objectively frivolous. (Doc. 35 at 160; Doc. 40 at 47). In Objections 17

and 32, Widmer argues that, if relief is denied, the Court should issue a certificate of

appealability on all grounds because reasonable jurists could disagree with the Court’s

conclusions on all grounds. (Doc. 37 at 81; Doc. 41 at 51–54). Widmer suggests that

reasonable jurists could disagree because Supreme Court of Ohio justices dissented when

denying certiorari of the direct and postconviction appellate court decisions.33

Widmer has demonstrated that “jurists of reason could disagree with the district

court’s resolution of his constitutional claims or that jurists could conclude that the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473 (2000)).

Accordingly, Objections 17 and 32 are sustained in part and a certificate of appealability

shall issue as to Grounds 1, 2, 3, 6, 7, 9, and 10. The Court denies issuance for Grounds

33 When the Supreme Court of Ohio denied certiorari of the direct appellate court’s decision,

then-Chief Justice O’Connor dissented as to denying review of Proposition of Law Nos. I

(argued as Ground 2 in the Petition) and III (argued as Ground 1 in the Petition), Judge Kennedy

dissented as to Proposition of Law No. III, and Judge Pfiefer dissented. State v. Widmer, 2013-

Ohio-553, 983 N.E.2d 368 (Ohio 2013) (table). When the Supreme Court of Ohio denied

certiorari of the postconviction appellate court’s decision, Judges Lazinger and O’Neill

dissented. State v. Widmer, 2013-Ohio-2062, 987 N.E.2d 703 (Ohio 2013) (table).

4, 5, 8, 11, and 12 because Widmer did not object when the Magistrate Judge

recommended rejecting those grounds and/or those grounds are not cognizable in habeas.

M. Remaining Objections

A few objections remain to be resolved. Specifically, Widmer asserts extensive

objections that reassert his previous arguments, fail to point to specific errors of the

Magistrate Judge’s Report and Recommendations or Supplemental Report and

Recommendations, and/or simply respectfully disagree with the Magistrate Judge. (See

Objections 18-23, 25-27, 29, and 31, Doc. 41-1 at 4–24, 37–48, 59). These are improper

objections and not well-taken. See, e.g., Bradley v. United States, No. 18-1444, 2018 WL

5084806, at *3 (6th Cir. Sept. 17, 2018) (quoting Miller v. Currie, 50 F.3d 373, 380 (6th

Cir. 1995)) (“A party’s objections are not sufficiently specific if they merely restate the

claims made in the initial petition, ‘disput[e] the correctness’ of a report and

recommendation without specifying the findings purportedly in error, or simply ‘object[]

to the report and recommendation and refer[ ] to several of the issues in the case.’”).

IV. CONCLUSION

As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has

reviewed the comprehensive findings of the Magistrate Judge and considered de novo all

of the filings in this matter. Upon consideration of the foregoing:

1. The Initial and Supplemental Reports and Recommendations (Docs. 35, 40)

are ADOPTED, except for the recommendations regarding a certificate of

appealability and leave to appeal in forma pauperis.

2. Objections 17 and 32 are SUSTAINED in part. Petitioner’s Objections

(Docs. 37, 43) are otherwise OVERRULED.

3. The Petition is DISMISSED with prejudice.

4. Pursuant to 28 U.S.C. § 2253, the Court ISSUES a certificate of

appealability as to Grounds 1, 2, 3, 6, 7, 9, and 10.

5. The Court GRANTS Petitioner leave to appeal in forma pauperis. 28

U.S.C. § 1915(a)(3).

6. The Clerk shall enter judgment accordingly, whereupon this case is

TERMINATED upon the docket of this Court.

IT IS SO ORDERED.

Date: 12/29/2023 /s Timothy S. Black

Timothy S. Black

United States District Judge