Were v. Warden Ohio State Penitentiary

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES WERE

N.K.A. NAMIR ABDUL MATEEN,

Petitioner,

Case No. 1:10-cv-698

Vv. Judge Michael H. Watson

Magistrate Elizabeth P. Deavers

DAVID BOBBY, Warden,

Respondent.

OPINION AND ORDER

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

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

matter is before the Court following an Order directing the parties to brief whether

Ohio Revised Code Section 2953.23 (“Section 2953.23”) is an independent and

adequate state ground, sufficient to procedurally default Petitioner’s Brady’ claim,

following the Ohio Supreme Court’s opinion in State v. Bethel, 167 Ohio St. 3d

362 (2022). ECF No. 192. For the following reasons, the Court concludes that

Section 2953.23 is not independent of federal law and does not procedurally

default Brady claims that were dismissed by the Ohio state courts after Bethel.

For Petitioner's Brady claim, which was barred by the Ohio state courts based on

1 Brady v. Maryland, 373 U.S. 83 (1963).

Section 2953.23 before the Bethel decision, any putative procedural default will

be excused if Petitioner can show that his Brady claim is meritorious.

I. RELEVANT PROCEDURAL HISTORY

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

ECF Nos. 1 & 2. Petitioner filed his Petition, an Amended Petition, a Second

Amended Petition, a Third Amended Petition, and a Fourth Amended Petition.

ECF Nos. 23, 28, 67, 92, 199.

In the midst of those filings, Petitioner returned to state court with a

successive postconviction petition filed in the Hamilton County Court of Common

Pleas. ECF No. 175-1 at PAGEID ## 23894-24057; ECF No. 175-7 at PAGEID

## 27616-27809. Petitioner asserted a Brady claim therein that he also asserted

in this matter (as Claim Three). ECF No. 92 at PAGEID ## 2731-2777; ECF No.

199 at PAGEID ## 30380-30418. The Hamilton County Court of Common Pleas

granted summary judgment for the state, dismissing Petitioner's successive

postconviction petition for failing to meet the jurisdictional requirements of

Section 2953.23. ECF No. 175-9 at PAGEID ## 29249-29250.

The Court of Appeals for the First Appellate District of Ohio (“appellate

court’) affirmed the dismissal. ECF No. 175-10 at PAGEID ## 29610-29618.

The appellate court found that the dismissal was appropriate because

Petitioner's claims could not satisfy Section 2953.23 (A)(1)(b), which requires an

outcome-determinative constitutional violation. /d. at PAGEID # 29614. It

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

Case No. 1:10-cv-698 Page 2 of 11

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

at trial as “extensive.” /d. at PAGEID # 29615.

The Supreme Court of Ohio declined to accept jurisdiction over Petitioner's

appeal, ECF No. 175-10 at PAGEID # 30121, and the United States Supreme

Court denied certiorari, ECF No. 151.

Petitioner moved for a stay and abeyance of the federal proceeding,

arguing that the Supreme Court of Ohio’s 2022 Bethel opinion rendered his

federal Brady claim unexhausted because of the opinion’s expansive

interpretation of Section 2953.53(A)(1) and Criminal Rule 33.2 ECF No. 182.

This Court denied Petitioner's Motion to Stay and Abey. ECF No. 192. It

concluded that Bethel did not render Petitioner's Brady claim unexhausted and

that resubmission of a claim to the state courts was unnecessary when the state

courts already had a full opportunity to determine the federal constitutional

issues. The Order also recognized, however, that Bethe! may impact this Court's

treatment of Section 2953.23 as an independent and adequate state ground for

purposes of procedural default because it appears to rely on and be inextricably

interwoven with federal law. /d. at PAGEID ## 30327-30329.

2 Were also argued that Claims Two and Ten were subject to a stay due to State v.

Bethel. He does not contend in his brief, ECF 302, nor does the Court find, that State v.

Bethel applies to any type of claim other than a Brady claim.

Case No. 1:10-cv-698 Page 3 of 11

ll. POSITIONS OF THE PARTIES

In response to the Court's directive, the parties briefed the issue. ECF

Nos. 202, 203. Petitioner argues that Section 2953.23 is a state procedural rule

“coexistent with the elements of a Brady claim” and, thus, is not independent of

federal law. ECF No. 202 at PAGEID # 30594. Respondent argues that the

issue is purely academic because Respondent has not yet asserted a procedural

default defense. ECF No. 203 at PAGEID ## 30598, 30601-30602. Respondent

further argues that Bethel did not negate the independence and adequateness of

the state procedural rule because it held that only part of the statute—

Section 2953.23(A)(1)(a}—was coterminous with Brady. Id. at PAGEID

## 30601-30606.°

lll. ANALYSIS

The questions here are whether Section 2953.23 remains an independent

and adequate state ground for purposes of procedural default following the

Bethel decision, and how the section should apply to Petitioner's Claim Three.

As an initial matter, it is not premature to address the issue now. The

parties jointly requested that the Court address this issue before Respondent

responds to Petitioner's Fourth Amended Petition. ECF No. 193. Furthermore,

3 Respondent also argues that Petitioner conceded during state court proceedings that

he could not meet the requirements of Section 2953.23. Id. at PAGEID # 30606.

Petitioner's state-court concessions are not pertinent to the Court’s analysis of whether,

under federal law, Section 2953.23 is an independent and adequate state ground. See

Lee v. Kemna, 534 U.S. 362, 375 (2002) (finding that the determination of whether a

particular state procedure is “independent” of federal law is a question of federal law).

Case No. 1:10-cv-698 Page 4 of 11

while Respondent may not have formally asserted procedural default yet,

Respondent does not suggest an intention to waive the defense. The Court

therefore proceeds to the issues.

A federal habeas court “will not review a question of federal law decided by

a state court if the decision of that court rests on a state law ground that is

independent of the federal question and adequate to support the judgment.”

Coleman v. Thompson, 501 U.S. 722, 729 (1991). This principle is commonly

referred to as the adequate and independent state ground doctrine, and it applies

to procedural and substantive state rules. Walker v. Martin, 562 U.S. 307, 315

(2011).

There are, however, circumstances when a state’s procedural rule does

not constitute an “independent” ground that will bar a federal habeas court's

consideration of a federal claim. “When application of a state law bar ‘depends

on a federal constitutional ruling, the state-law prong of the court's holding is not

independent of federal law, and [] jurisdiction is not precluded.” Foster v.

Chatman, 578 U.S. 488, 497-98 (2016) (citing Ake v. Oklahoma, 470 U.S. 68, 75

(1985)). When the “state has made application of the procedural bar depend on

an antecedent ruling on federal law, that is, on the determination of whether

federal constitutional error has been committed . . . . [the procedural bar]

consequently does not present an independent state ground for the decision

rendered.” Ake, 470 U.S. at 75.

Case No. 1:10-cv-698 Page 5 of 11

The Supreme Court applied this principle in Foster v. Chatman, where it

held that Georgia’s application of res judicata to the petitioner's Batson‘ claim

was not independent of federal law. 578 U.S. at 498. The Supreme Court

reached this conclusion because the state court engaged in a lengthy analysis of

the merits of the underlying Batson claim before determining whether to apply the

procedural bar. /d.; see also, Brecheen v. Reynolds, 41 F.3d 1343, 1354 (10th

Cir. 1994) (holding that the petitioner's prosecutorial misconduct claim was not

barred “because th[e] state procedural ruling is dependent on an antecedent

ruling of federal law, the state-law prong of the court’s holding is not independent

of federal law.” (internal quotation marks and citations omitted)); Green v. Travis,

414 F.3d 288 (2d. Cir. 2005) (holding that the petitioner's claim was not

foreclosed because the state appellate court merged the claim preservation issue

with the test for a prima facie Batson claim); Borden v. Allen, 646 F.3d 785, 816

(11th Cir. 2011) (holding that the petitioner's ineffective assistance of counsel

claim was not procedurally defaulted because the “Alabama court's consideration

of the sufficiency of the pleadings . . . necessarily entails a determination on the

merits of the underlying claim[.]’).

This Court’s March 15, 2023, Order described the impact of Bethe/ on

Ohio’s application of Section 2953.23:

The Supreme Court of Ohio found in Bethe/ that, to meet the

“unavoidably prevented” jurisdictional requirement of Ohio Revised

Code § 2953. 23(A)(1)(a), the petitioner need only show that the claim

4 Batson v. Kentucky, 476 US. 79 (1986).

Case No. 1:10-cv-698 Page 6 of 11

was based on information suppressed by the prosecution. The

Supreme Court of Ohio concluded that the trial court erred when it

imposed a diligence standard on Bethel that was inconsistent with

Brady.

The Supreme Court of Ohio aiso found that the second

jurisdictional requirement, Ohio Revised Code § 2953. 23(A)(1)(b),

“goes to the heart of Brady’s third prong, which requires [the

petitioner] to show that there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding

would have been different.” Bethel was not required to show that the

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

undermined the confidence in the outcome of his trial... .

The Supreme Court of Ohio found that Ohio Revised Code

§ 2953.23 set the jurisdictional bar so high that certain meritorious

Brady claims would never be heard through Ohio’s postconviction

process. To remedy this problem, Bethe! concluded that Ohio Revised

Code § 2953. 23(A)(1) should be interpreted coextensively with

Brady.

ECF No. 192 at PAGEID ## 30320-30321 (internal citations omitted); Were v.

Bobby, No. 1:10-CV-698, 2023 WL 2522837 (S.D. Ohio Mar. 15, 2023).

The Supreme Court of Ohio unquestionably relied on a federal Brady

analysis as controlling the outcome of the state procedural bar. It did so for both

Sections 2953 “(A)(1)(a)” and “(A)(1)(b).”_ Thus, Section 2953.23 is not

independent of federal law and does not default Brady claims dismissed by Ohio

state court decisions rendered after Bethel. It is less clear, however, whether the

same conclusion applies to Brady claims in Ohio that were dismissed pursuant to

Section 2953 before Bethe! was decided.

As noted in this Court’s March 15, 2023, Order, nearly four years before

the Supreme Court of Ohio decided Bethel, the First District Court of Appeals

Case No. 1:10-cv-698 Page 7 of 11

held that jurisdiction was lacking over Petitioner’s successive postconviction

claims based on his inability to satisfy the “outcome determinative” prong of

Section 2953.23(A)(1)(b):

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

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

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

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

no reasonable factfinder would have found him guilty of aggravated

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

respect to those claims, Were did not satisfy the RC. 2953. 23(A)(1)(b)

jurisdictional requirement, the common pleas court had no jurisdiction

to entertain them.

ECF No. 175-10 at PAGEID ## 29615-29616. This quotation demonstrates that

the last reasoned state-court decision that determined Petitioner's Brady claim

was barred by Section 2953.23 does not appear to apply the statute in such a

way that is interwoven or coextensive with federal law.

Although Bethel did not expressly overrule State v. Were (or any other

case that was decided on the “outcome-determinative” prong of Section 2953.23

“(A)(1)(b)”), it appears to have effectively overruled those cases by holding that

Section 2953.23(A)(1)(b) “goes to the heart of Brady’s third prong... .” Bethel,

167 Ohio St. 3d at 369-370. In Bethel, the Supreme Court of Ohio went on to

stress that a petitioner asserting a Brady claim is not required to show that

disclosure of the suppressed evidence would have resulted in an acquittal;

rather, the petitioner must show only that the suppression of the evidence

“undermines the confidence in the outcome of the trial.” /d. at 370 (citing Kyles v.

Whitley, 514 U.S. 419, 434).

Case No. 1:10-cv-698 Page 8 of 11

In the Sixth Circuit, a district court must undertake a four-part analysis

when the state argues that a federal habeas claim is barred by the petitioner's

failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138

(6th Cir. 1986). “First, the court must decide that there is a state procedural rule

that is applicable to the petitioner’s claim and that the petitioner failed to comply

with the rule.” /d. Second, the court must determine whether the state courts

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

whether the state procedural forfeiture is an adequate and independent state

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

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

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

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

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

prejudiced by the alleged constitutional error. /d.

Arguably, the First District Court of Appeals’ opinion dismissing Petitioner's

Brady claim on Section 2953.23(A)(1)(b) grounds fails the first part of the Maupin

test. If the First District Court of Appeals used the incorrect analysis, then

Petitioner may not have “failed to comply” with the statute. See Greer v. Mitchell,

264 F.3d 663, 675 (6th Cir. 2001) (“[W]hen the record reveals that the state

court’s reliance upon its own procedural default is misplaced, we are reluctant to

conclude categorically that federal habeas review of the purportedly defaulted

claim is precluded.”). Moreover, if the First District Court of Appeals had applied

Case No. 1:10-cv-698 Page 9 of 11

Section 2953.23, as that section was described four years later in Bethel, then

the section would not have been an adequate and independent state ground that

would procedurally bar Petitioner's Brady claim.° This is a reasonable

interpretation of how Section 2953.23 should be treated with respect to Ohio

state decisions that dismissed Brady claims before Bethel.

However, there is another method for Petitioner to receive a merits review.

If Petitioner can demonstrate a meritorious Brady violation, he will also have

made the requisite showing to excuse any putative procedural default, allowing

the Court to grant habeas relief. Hughbanks v. Hudson, 2 F.4th 527, 535 (6th

Cir. 2021). That is because the Supreme Court has held that “two of the three

elements of an alleged Brady violation, whether the evidence was suppressed by

the State and whether such suppressed evidence was material, constitute the

required cause and prejudice to excuse procedural default.” /d. at 535 (citing

Strickler v. Greene, 527 U.S. 263, 282 (1999)).

Since a meritorious Brady claim is, ipso facto, excused from any

procedural default, it is not necessary for the Court to decide whether

5 Additionally, it could be argued that O.R.C. § 2953.23, as applied by the First District

Court of Appeals to Petitioner's Brady claim, was not “adequate” to preclude federal

review because it frustrates the assertion of a federal right without significantly

advancing any important state policy. See generally, James v. Kentucky, 466 U.S. 344,

343-44 (1984); Staub v. City of Baxley, 355 U.S. 313, 320 (1958); Brown v. Western

Ry. of Ala., 338 U.S. 294, 295 (1949); Hoffman v. Arave, 236 F.3d 523, 531 (9th Cir.

2001). For the same reasons explained herein, the Court need not determine the

“adequateness’” of O.R.C. § 2953.23.

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

Section 2953.23, as it was applied to Petitioner's Claim Three, is independent of

federal law.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that Section 2953.23 is not

independent of federal law and does not procedurally default Brady claims that

were dismissed by the Ohio state courts after the Supreme Court of Ohio

decided Bethel. Because any putative procedural default of claims dismissed

before Bethel is excused through a meritorious Brady claim, the Court will not

decide whether Section 2953.23, as applied to Petitioner's Brady claim before

Bethel was decided, is independent of federal law.

IT IS SO ORDERED. hal Walon

MICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT

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