The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JOHN WILLIAM LONG,
Petitioner, : Case No. 1:23-cv-714
- vs - District Judge Matthew W. McFarland
Magistrate Judge Michael R. Merz
WARDEN, Pickaway Correctional
Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This is a habeas corpus case, filed pro se by Petitioner John William Long pursuant to 28
U.S.C. § 2254 to obtain relief from his conviction for murder in the Hamilton County Court of
Common Pleas. Relevant pleadings are the Amended Petition (ECF No. 15), the State Court
Record (ECF No. 20) and Return of Writ (ECF No. 21) filed by Respondent, Petitioner’s Reply
(ECF No. 25), Respondent’s Amended Return (ECF No. 28) and Supplemental State Court Record
(ECF No. 29). Petitioner has waived his opportunity to file an amended reply (ECF No. 32).
Litigation History
On April 14, 2004, almost twenty-one years ago, a Hamilton County grand jury indicted
Long on one count of murder (Indictment, State Court Record ECF No. 20, Ex. 1). The case was
tried to a jury which convicted Long, who was then sentenced to a term of imprisonment of fifteen
years to life (Judgment, State Court Record, ECF No. 20, Ex. 4). Represented by different counsel,
he appealed to the Ohio First District Court of Appeals which affirmed the conviction. State v.
Long, Case No. C-040643 (Ohio App. 1st Dist. Oct. 26, 2005)(unreported; copy at State Court
Record, ECF No. 20, Ex. 8). The Ohio Supreme Court declined to exercise jurisdiction over a
subsequent appeal. Id. at Ex. 11.
On January 10, 2006, Long filed an application pursuant to Ohio App. R. 26(B) to reopen
his direct appeal (State Court Record, ECF No. 20, Ex. 12) which the court of appeals found barred
by res judicata. Id. at Ex. 18. The Ohio Supreme Court declined to exercise jurisdiction over a
subsequent appeal. Id. at Ex. 20.
This Court dismissed Long’s first habeas corpus petition with prejudice. Long v. Jackson,
Case No. 1:06-cv-787 (State Court Record, ECF No. 20, PageID 474, et seq.). He was denied a
certificate of appealability both by this Court and by the Sixth Circuit.
Long next sought to have his sentence vacated because he asserted it was void for inclusion
of a term of post-release control. The First District agreed and on January 6, 2011, Long was
resentenced consistent with the state appellate court’s decision. (ECF No. 20, Ex. 34). He did not
appeal.
On January 14, 2013, Long, pro se, filed a petition to vacate and or set aside the judgment
of conviction in the trial court. (ECF No. 20, Ex. 60). That court dismissed the petition for lack of
jurisdiction under Ohio Revised Code § 2953.23, finding the petition to be untimely (ECF No. 20,
Ex. 63). The First District dismissed an appeal for failure to file a transcript (ECF No. 20, Ex. 66).
The Ohio Supreme Court again declined jurisdiction (ECF No. 20, Ex. 70).
After a number of other unsuccessful state court actions, Petitioner filed his second habeas
corpus petition in this Court (ECF No. 3). Petitioner recites that he placed the Petition in the prison
mailing system on October 9, 2023, but it was not received and docketed until November 1, 2023.
This Court then transferred the case to the Sixth Circuit as a second or successive habeas petition
(ECF No. 4). The circuit court determined its permission was unnecessary because the Petition
was not second or successive within the meaning of 28 U.S.C. § 2244. In re Long, 2024 U.S.App.
LEXIS 21423 (6th Cir. 2024)(copy at ECF No. 8). It remanded the case for further proceedings
and the Court ordered Respondent to answer (ECF No. 9).
Long pleads the following grounds for relief:
Ground One (a): The State of Ohio and/or it's agents intentionally
suppressed exculpatory evidence, in violation of Brady v. Maryland,
373 U.S. 83 (1963(parallel citations omitted) and this resulted in a
violation of Petitioner's Fourteenth Amendment due process rights
to a fair trial.
(b) Supporting Facts: In 2019, after Petitioner obtained a court
order granting leave to request public records, See State v. Long,
2018 Ohio 4194, Defendant was able to obtain public records from
the Cincinnati Police and the Hamilton Co. Coroners' Office. The
files obtained contained favorable evidence that had been
intentionally and strategically suppressed. It has been determined by
the Ohio First District Court of Appeals that petitioner was
"unavoidably prevented" from discovering the evidence that his
motion for a new trial was supported with. See State v. Long, 2021
Ohio 2835. On October 17, 2019 Petitioner filed a motion for a new
trial pursuant to Crim. R. 33(B) and attached to that motion were
copies of the newly discovered evidence that Petitioner was using to
demonstrate his right to a fair trial were violated.
(c) The newly discovered evidence (NDE hereinafter) Petitioner
obtained was a Homicide Unit Narrative Report, suppressed
statements of Brandy Jones, Steve Wyatt, Shelise Gilmore and
Patrina Crawford, a Cincinnati Police Investigative Log and the
Hamilton Co. Coroner's Chain of Custody. This evidence supported
the assertion that the assailant was injured during the commission of
the offense and left blood at the crime scene, that was collected by
investigators; an eyewitness (Shelise Gilmore) had identified John
E. Long from a photo array and homicide detective Jennifer Luke
committed perjury by misleading the defense and jury about the
existence of evidence suggesting that an injured perpetrator had left
a "blood trail" over material pieces of evidence found at the crime
scene; Detective Luke also committing perjury by testifying that no
eyewitness ever identified the "wrong John Long" from a photo
array, when in actuality evidence was discovered that the State were
poised to indict John E. Long in December of 2003, based on the
November 7, 2003 eyewitness identification of John E. Long by
Shelise Gilmore. These were suppressed pretrial witness statements
that had impeachment value. Also, uncovered in the case file was
the photo array statement of Patrina Crawford who selected
Petitioner from a photo array on June 15, 2004, sixty days after
Petitioner was indicted. At trial, this fact was concealed by the State.
The suppressed evidence impeded petitioner's ability to defend
himself against the indicted charges. See Defendant Request for
Probable Cause Hearing, In Re: ORC 2935.09/10 Affidavit of
Accusation, filed on 4.20.21 filed in the Hamilton County Court of
Common Pleas in case number B-0402803.
The NDE obtained from the Hamilton County Coroner's Office was
a Case History Report and the Chain of Custody Report. These
reports were suppressed and provided impeachment material in
regards to forensic scientist Joan Burke trial testimony, who
testified, for the State, that she did not conduct any definitive DNA
tests on any on items of evidence discovered at the crime scene that
had blood evidence on them. The Chain of Custody established
Burkes' testimony to be inaccurate and false because the Chain of
Custody Report indicates what items of evidence had electronic
"DNA records" created in connection to the blood found on items of
the victims clothing found at the crime scene (Dl#03015672, ltem4-
5, Chain of Custody Report). This report clearly establishes that
examinations and tests were conducted on biological evidence found
at the crime scene and the results of that testing was suppressed from
the defense. This suppressed report withheld favorable and material
evidence that the perpetrator left his blood at the scene, petitioners'
DNA was tested against the DNA found at the scene and an
"exclusion result" was obtained that was material to petitioner's guilt
or innocence. This evidence when considered in conjunction with
the suppressed statements of Steve Wyatt and Brandy Jones
establishes that the perpetrator was injured during the commission
of the offense and this evidence was intentionally and strategically
suppressed.
Ground One(B): Longs' due process rights were violated when the
State knowingly used false testimony at trial and allowed that false
testimony to go uncorrected, in violation of the holdings in Napue
v. Illinois, 360 U.S. 264, 269 (1959), and the Fourteenth
Amendment right to a fair trial.
Supporting Facts: In 2019, when Long obtained the case file from
the CPD and the Chain of Custody Report from the Hamilton
County Coroner's Office it was discovered that the State, in their
case in chief, had used the false testimony of Jennifer Luke when
evidence proved that Luke committed perjury when she testified to
such because Shelise Gilmore had identified John E. Long as the
perpetrator of this murder and the state was poised to indict John E.
Long in December of 2003. Hamilton County Prosecutor Mark
Piepmeier allowed this false testimony go uncorrected at trial. At
trial, Joan Burke from the Hamilton County Coroner's Office
testified that (1) no conclusive testing was performed on Items 4-5
(victims blue jeans). Long's DNA was collected and compared to
the DNA found on the victims blue jeans, testing was conducted on
that item of evidence and the results of that testing was intentionally
and strategically suppressed.
Ground Two: Petitioner received ineffective assistance of counsel
and this violated petitioner's 6th amendment right to effective
assistance of counsel and his 14th amendment right to due process.
(a) Supporting Facts: Trial counsel was ineffective for failing to
investigate any potential pretrial statements made by witnesses
Shelise Gilmore, Patrina Crawford, Melissa Howell, and Ruby
Gentry. These witnesses were at the scene the night of the offense
and after receiving the case file from the Cincinnati Police it became
evident that these witnesses' pretrial statements were material to
preparing an effective defense. Prior to trial, defense counsel was
made aware that there was a problem with Brandy Jones possible
trial testimony and the state conceded that Brandy Jones was a
potential defense witness. Trial counsel failed to secure Jones'
testimony at trial.
(Amended Petition, ECF No. 15, PageID 170-73).
Analysis
Statute of Limitations
Respondent asserts Long’s Petition is barred by the statute of limitations.
The Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat.
1214)(the "AEDPA") adopted for the first time a statute of limitations for habeas corpus petitions
which is now codified at 28 U.S.C. § 2244(d) which provides:
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from
the latest of —
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of the United States is removed, if the applicant was prevented
from filing by such State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence.
(2) The time during which a properly filed application for State post-
conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.
The judgment on which Petitioner is now imprisoned is that of January 6, 2011 (State Court
Record, ECF No. 20, Ex. 34). Petitioner took no appeal from that judgment, so it became final
thirty days later, February 5, 2011, the last day on which any appeal could have been taken.
Measured under § 2244(d)(1)(A), the Petition here, not filed until October 9, 2023, is untimely by
more than twelve years.
As anticipated by Respondent, Long defends the timeliness of his Petition under 28 U.S.C.
§ 2244(d)(1)(D). He states in his Reply:
Respondent has asserted incorrectly that Long's petition is time
bared [sic] under the provisions of 28 USC 2244(d)(l)(D). When the
appellate court reversed and remanded the trial court[‘]s denial of
Long's Crim.R.33(B) motion for leave to file a new trial motion
based on newly discovered evidence, the appellate court found that,
(1) "The record on appeal shows that, despite his diligent efforts
thereafter to gain access to those records, Long did not receive his
case file until May 2019 and (2) "the common pleas court's decision
denying Long's motion for leave was not supported by the record.
To the contrary, the record provides clear and convincing proof that
Long had been "unavoidably prevented" from timely discovering
and presenting in a new-trial motion the evidence upon which his
new trial motion depended, and that under the circumstances, a 90-
day delay in filing the motion after that evidence was discovered
was understandable and not unreasonable." (Emphasis added) State
v. Long, 2021 Ohio 2835, (Doc.20:PAGEID#1387-96).
For the purposes of 2244(d)(l)(D) the appellate court determined
May 14, 2019 as the date that the factual predicate of Long's claims
were discovered, therefore the AEDPA clock begun to run on that
date and stopped on the date Long's properly filed Crim.R.33(B)
Motion for Leave to File a New Trial Motion which was August 9,
2019. (Doc.20:PAGEID#l407) This period totaled (86) days, but the
court of appeals cited (90) days so for the sake of uniformity, Long's
concedes the (90) days. See (Doc. 20- l:PAGEID#1401- l407) The
clock was tolled until Long had exhausted his state court remedies,
which was April 24, 2024, the date the Ohio Supreme Court
declined to accept jurisdiction of Long's case. (Doc. 20-1 :PAGEID#
1812) The time from April 24, 2024 until November 1, 2024 is (191)
days plus the (90) days the appellate court calculated (191 + 90 =
281), well within the 2244(d)(l)(D) statute of limitations, therefore
Long's petition is timely.
(Reply, ECF No. 25, PageID 2915-16). This argument requires unpacking.
In the cited 2021 decision, Long’s case was before the First District Court of Appeals on
appeal from a denial in the Hamilton County Court of Common Pleas of Long’s motion under
Ohio R. Crim. P. 33(B) for leave to file a delayed motion for new trial. State v. Long, 2021-Ohio-
2835, ¶1. That Rule provides that a motion for new trial based on newly-discovered evidence must
be filed within 120 days after the verdict unless “it is made to appear by clear and convincing
evidence that the defendant was unavoidably prevented from the discovery of the evidence upon
which he must rely . . ..” (emphasis supplied)
Thus the question before the First District was a question of fact – what prevented Long
from discovering the evidence that he submitted with his motion for new trial? – and applying
Ohio law to those facts: did they show by clear and convincing evidence that Long had been
unavoidably prevented from discovering his proposed new evidence? Note that the ultimate
question is one of Ohio law and relates to the discovery of evidence, not claims or “factual
predicates.”
The First District Court of Appeals decided Long had met the Ohio Crim. Rule 33(B)
standard. In part it noted that Long as a criminal defendant could not use the Ohio Public Records
Act to obtain records until after the Supreme Court of Ohio decided the exception in that statute
for criminal defendants “does not extend past the completion of the criminal procedure for which
the requested information had been gathered.” State v. Long, supra, at ¶ 14, citing State ex rel.
Caster v. Columbus, 151 Ohio St.3d 425, 2016-Ohio-8394, 89 N.E.3d 598, ¶ 47, overruling in part
State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994), and State ex rel.
WLWT–TV5 v. Leis, 77 Ohio St.3d 357, 673 N.E.2d 1365 (1997). That is, Long could not use the
Public Records Act to gather evidence before the Caster decision in 2016.
The First District’s decision does not record when Long made his public records request,
but notes he did not receive his case file until May 14, 2019. State v. Long, supra, at ¶ 14. He
then filed his Motion for Leave to File a Delayed Motion for New Trial in August 2019. Id. The
First District held the delay in filing from May until August was not “unreasonable.”1 It ordered
the Common Pleas Court to grant leave to file and then to consider the motion for new trial on the
1 For reasons not material here, the Ohio Supreme Court has, since the First District’s decision in this case,
substantially altered the law on delay in filing a motion for leave to file a delayed motion for new trial. See State v.
Bethel, 167 Ohio St. 3d 362 (2022); State v. McNeal, 169 Ohio St. 3d 47 (2022); State v. Hatton, 169 Ohio St. 3d 446
(2022).
merits. State v. Long, supra, at ¶ 16.
The First District thus decided a question of Ohio law: had Long shown by clear and
convincing evidence that he was unavoidably prevented from filing his motion for new trial within
120 days of verdict? The First District did not decide the federal law question presented by Long’s
reliance on § 2244(d)(1)(D): whether the factual predicate of the claim or claims presented could
have been discovered sooner through the exercise of due diligence. Nor did the First District have
occasion to decide the federal law question. The question before that court was not whether Long’s
filing satisfied the federal statute of limitations, but rather whether Long’s filing of the newly-
discovered evidence on which he relied in seeking a new trial had been “unavoidably prevented.”
Since the Ohio Supreme Court did not interpret the Ohio Public Records Act so as to allow Long
to discover the “newly discovered evidence” until it decided Caster in 2016, obviously it could
not have been done within 120 days of the verdict which was handed down before sentencing in
September, 2004.
Respondent argues that, regardless of when he obtained the evidence relied on in his new
trial motion, Long knew the factual predicates of his claims long before he obtained his case file
in May, 2019 (Amended Return, ECF No. 28, PageID 3026-28). That is, in documents prepared
and filed by Long well before he obtained his case file, he adverted to the existence of documents
which would establish his claims – Brady/Napue violations and ineffective assistance of trial
counsel -- even though he had not yet been able to obtain copies of those documents.
Respondent’s cited record references are strong proof Long knew the factual predicates of
his claims as much as ten years before he received his case file in May, 2019. Long does not offer
rebuttal to these references in is Reply2, insisting May, 2019, is the relevant date for assessing his
2 Long argues instead that the State intentionally thwarted his attempts to obtain post-conviction relief (Reply, ECF
No. 25, PageID 2916). Whether or not the State defended the conviction it had obtained simply does not speak to the
knowledge. The Magistrate Judge, however, accepts Respondent’s argument: Long knew the
factual predicate for his claims long before he received his case file which included his “newly
discovered evidence” in May 2019. As the Sixth Circuit has held, “[d]iscovering the ‘factual
predicate’ of a claim is not the same as proving a claim [i.e. by submitting evidence].” Deaton v.
Hildebrand, 2024 U.S. App. LEXIS 2417 at *6 (6th Cir. 2024).
As early as June, 2009, Long knew of the existence of human blood on physical evidence
at the Hamilton County Crime Lab (Request for Court Order to Preserve Evidence, State Court
Record, ECF No. 20, Ex. 35). Long has persisted in his assertion of this fact. In his Petition for
Post-Conviction Relief filed in January 2013, he evinced knowledge of many of the claims he now
makes (ECF No. 20, PageID 726, et seq.). In his June 21, 2018, DNA testing application, he refers
to blood evidence being withheld in violation of Brady v. Maryland, 373 U.S. 83 (1963)(ECF No.
20, PageID 919, et seq.).
By Long’s account the statute does not begin to run until May 14, 2019 (Reply, ECF No.
25, PageID 2915). It then runs eight-six days until it is tolled by the filing of Long’s motion for
leave to file a delayed motion for new trial. Id. Long asserts it remains tolled “until Long had
exhausted his state court remedies, which was April 24, 2024, the date the Ohio Supreme Court
declined to accept jurisdiction of Long's case.” Id. at PageID 2916.
Long relies on 28 U.S.C. § 2244(d)(2) which provides “(2) The time during which a
properly filed application for State post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted toward any period of limitation under
this subsection.” However, not every state court post-conviction filing tolls the statute. Instead,
to toll the statute, the filing must be (1) properly filed and (2) seeking relief from the pertinent
question whether Long knew he had claims to make and what their factual predicates were.
judgment.
The First District’s decision reversing the trial court’s denial of leave to file a motion for
new trial was entered August 1, 2021 (ECF No. 20, Ex. 134). That court’s eventual decision
affirming denial of the new trial motion was entered January 18, 2023 (ECF No. 20-1, Ex. 158).
Long timely appealed from the First District’s affirmance of denial of his motion for new trial, but
the Ohio Supreme Court declined jurisdiction on April 11, 2023 (ECF No. 20-1, Ex. 164). At that
point the statute began to run again and expired 279 days later on January 15, 2024, unless again
tolled. If time is measured from the Supreme Court’s denial of review of denial of the new trial
motion, the Petition was timely filed on October 9, 2023. However, because Long had previous
knowledge of the factual predicates of his claims, May 2019 is not the appropriate starting date.
Long asserts the statute did not begin to run again until April 24, 2024, which he says is
the date the Ohio Supreme Court “declined to accept jurisdiction of Long's case.” However, for
that proposition he cites Doc. 20-1, PageID 1812 (Reply, ECF No. 25, PageID 2916) which is the
Supreme Court entry of April 11, 2023, not April 24, 2024.
In sum, the statute of limitations ran many years before Long received his case file on May
14, 2019, and the Petition should be dismissed as time-barred.
Merits
In the alternative, if the Court overrules the limitations defense and reaches the merits, the
Petition should still be dismissed.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86 (2011);
Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams
(Terry) v. Taylor, 529 U.S. 362, 379 (2000); Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018).
Deference is also due under 28 U.S.C. § 2254(d)(2) unless the state court decision was based on
an unreasonable determination of the facts in light of the evidence presented in the State court
proceedings.
Prosecutorial Misconduct Claim
In affirming the Common Pleas Court’s denial of the motion for new trial, the First District
Court of Appeals decided Long’s suppression of evidence and ineffective assistance of trial
counsel claims on the merits. As to the suppression of evidence claim, the First District held:
{¶14} Prosecutorial misconduct in failing to disclose, upon request,
evidence “material either to guilt or to punishment” violates the fair-
trial guarantee of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. Brady at 87. This
principle extends to wrongfully withheld evidence undermining a
witness's credibility. Giglio v. United States, 405 U.S. 150, 154, 92
S.Ct. 763, 31 L.Ed.2d 104 (1972). The Brady rule applies regardless
of whether the evidence is suppressed by the state willfully or
inadvertently. Strickler v. Greene, 527 U.S. 263, 280, 199 S.Ct.
1936, 144 L.Ed.2d 286 (1999).
{¶15} In order to establish a due-process violation under Brady, the
defendant must demonstrate that: “(1) the prosecution failed to
disclose evidence upon request; (2) the evidence was favorable to
the defendant; and (3) the evidence was material.” State v. Goney,
2d Dist. Greene No. 2017-CA-43, 2018-Ohio-2115, ¶ 66. Evidence
is favorable to the accused when it is exculpatory or impeaching.
State v. McNeal, Slip Opinion No. 2022-Ohio-2703, ¶ 20, citing
Strickler at 281-282.
“Favorable evidence is material, and constitutional error
results from its suppression by the government, ‘if there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.’ ” Kyles [v. Whitley, 514 U.S. 419,] at 433, [115
S.Ct. 1555, 131 L.Ed.2d. 490 (1995)], quoting United States
v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481
(1985). A different result is reasonably probable “when the
government's evidentiary suppression ‘undermines
confidence in the outcome of the trial.’ ” Id. at 434, quoting
Bagley at 678.
McNeal at ¶ 20.
Alleged Brady Violations
{¶16} In reviewing Long's alleged Brady violations, we keep in
mind that, at trial, (1) the only issue in dispute was the identity of
the murderer, (2) there was physical evidence connecting Long to
the crime scene, namely the victim's blood on his denim shorts found
at the crime scene and a bus-ticket receipt in Long's name found in
those shorts, and (3) there was testimony from an eyewitness who
knew Long from the neighborhood and identified him from a photo
array as the man she saw fleeing from the loading dock where the
victim was murdered. We evaluate Long's claimed Brady violations
to see if, considering the evidence introduced at trial and in the
record before us, whether this new evidence undermines confidence
in the outcome of the trial.
{¶17} Officer Coombs's report. With respect to Long's argument
that Officer Coombs committed perjury when he testified at trial that
he was the one who had found the denim shorts in the alley, we hold
that that Police Officer Coombs's report indicating that he
“recovered” nothing from the crime scene is not favorable evidence
that undermines confidence in the outcome of the trial, and thus, its
suppression is not a Brady violation. Officer Coombs only testified
at trial that he had been the one to spot the denim shorts but had told
the jury that a different officer “recovered” the denim shorts and
removed them to the police's property room prior to submitting the
evidence to the coroner's lab for forensic testing.
{¶18} Patrina Crawford's statements. Next, Long argues that
Crawford's statements made to police prior to her identification of
Long demonstrate how her testimony changed or evolved over time
to “fit what the State needed her to say” in order to secure a
conviction. Specifically, Long points to Crawford's August 18, 2003
statement where she described the suspect as having “no hair,
baldheaded * * * small head * * * funny shaped head.” While this
statement is favorable to Long because he is not bald, the jury heard
testimony from Crawford that she initially thought the suspect was
bald, but then presumed that Long must have been wearing a
“stocking cap” the night of the murder. Pictures of Long from
roughly the late 1990s to 2003, the year of the murder, show Long
with dreadlocks, but the pictures closer to 2003 demonstrate that
Long's hair was cut shorter, closer to his head. Because the jury was
aware that Crawford initially thought the suspect looked bald, these
statements, which are consistent with Crawford's testimony at trial,
do not undermine confidence in the outcome of the trial, and the
failure to turn over these statements does not constitute a Brady
violation.
{¶19} Shelise Gilmore's November 2003 statement. Long argues
that the lead detective “lied” when she testified no one identified
John E. Long from the photo lineup. He contends that Gilmore
identified John E. Long from a photo array as the man she saw
fleeing from the loading dock the night Spikes was murdered. In her
November 7, 2003 statement to police, which was her second time
talking with police, Gilmore said that there were two men standing
near her and Crawford on the street corner the night Spikes was
murdered. She identified John E. Long from a photo array as one of
those men but said she had not known his name at the time. When
the detective asked Gilmore if John E. Long “was the same person
running from that scene,” Gilmore responded, “It was dark but it
looked like him.” Although this statement is favorable to the
defendant, and should have been disclosed to him, when viewed in
context with Gilmore's other statements and evidence presented at
trial, and the fact that the victim's blood was found on Long's denim
shorts at the crime scene, we cannot say that this evidence
undermines confidence in the outcome of the trial, and thus, it does
not satisfy the materiality component of a due-process violation
under Brady.
{¶20} Gilmore gave three statements to police. In her first
statement, shortly after the murder, she and Crawford were
questioned separately but both gave a similar description of the
suspect they saw fleeing from the scene. Crawford had a better view
of the suspect because she was closer to the loading-dock ramp and
Gilmore was across the street on the phone reporting the crime.
Notably, Gilmore and Crawford were both shown a photo array
within a few days of the murder, which contained a picture of John
E. Long, but neither identified John E. Long as the suspect they saw
fleeing that night. Gilmore gave her November 2003 statement, her
second statement, prior to the police determining that the bus-ticket
receipt, found in the pocket of the denim shorts at the crime scene,
belonged to defendant. After the investigation began to focus on
defendant, Gilmore was stopped by police on an unrelated matter,
brought into the station, and shown a photo array, which included a
picture of the defendant. At first, Gilmore said she did not recognize
anyone but when the officers picked up the array, Gilmore started
crying, and identified Long as the person she had seen fleeing that
night. After Gilmore identified Long, the lead detective explained to
Gilmore that the police could not believe anything Gilmore said
because she kept changing her story.
{¶21} Gilmore did not testify at trial because she was incapacitated
from a beating. Thus, she did not identify Long at trial. Nor was her
pretrial identification of Long admitted into evidence. Thus, the jury
did not hear that there was another eyewitness who identified Long.
{¶22} Because she did not testify, Gilmore could not have been
cross-examined about her prior identification of John E. Long. Long
argues, however, that the lead detective could have been confronted
on cross-examination after she testified that no one had identified
John E. Long from a photo array. The jury would have also heard
that the police had concluded that Gilmore's statements were
unreliable and, perhaps, that she had identified Long too.
{¶23} We first note that a fair interpretation of the lead detective's
testimony is that no one identified John E. Long from the first photo
array. This is true. Neither Crawford nor Gilmore identified him.
But beyond that we agree that Gilmore's second identification
should have been turned over. As Long points out, it could only have
been used to impeach the lead detective. Based on this record, there
is no suggestion that Long would have done anything further with
respect to investigating John E. Long. His identity, and his
identification as a suspect, were known to Long and were covered
fully during the trial.
{¶24} Therefore, as noted above, viewing Gilmore's November
2003 statement in context with her other statements, and considering
the evidence admitted at trial of Long's guilt, we hold that Gilmore's
November 2003 statement, while it should have been disclosed to
the defense, ultimately does not constitute a due-process violation
under Brady because it does not undermine confidence in the
outcome of the trial.
{¶25} Statements of Brandy Jones and Steve Wyatt. Long claims
that Jones's and her boyfriend Steve Wyatt's statements to police
demonstrate that the “bloodied man” who had tried to enter the
apartment building the night of the murder had cut his hand. Long
contends that this is evidence that the killer cut himself while
stabbing Spikes and left his blood, and thus, the killer's DNA, at the
crime scene. Long also argues that this proves the lead detective
covered up the fact that “unknown blood” had been found at the
crime scene. But upon reviewing Jones's and Wyatt's statements to
police, we hold that they are not favorable to Long. First, neither
Jones nor Wyatt had seen a cut on the person trying to enter the
building. Wyatt only said that the man's hand was bloody. And Jones
had told the lead detective that the man's hands had looked
yellowish, like bruises or as if his hands had been burned like
“somebody who uses crack cocaine.” In explaining why she did not
call the police after her encounter with this “bloodied man,” she
stated that she thought the man may have been drunk and maybe had
blood on him not because he had just killed someone but because he
had cut himself. She did not see any cuts on this person. Also, her
description of the “bloodied man”—a man with a slim build and
“short braids”—somewhat matches Long's physical appearance.
Finally, in her January 14, 2004 statement, Jones viewed a photo
array that contained Long's picture, and identified Long as the man
who had tried to enter the apartment building that night. Contrary to
Long's argument, these statements were not favorable to Long and
do not amount to a Brady violation.
{¶26} Witness statements of Shelise Gilmore, Ruby Gentry and
Melissa Howell. Long claims that these witnesses’ statements,
which described the fleeing suspect with differing heights, and
Gentry's statement, where she said that she had overheard Gilmore
say that her friend had killed the victim, should have directed the
investigation away from him. But the police did investigate other
people at first, including John E. Long, prior to learning that the bus-
ticket receipt found in the pocket of the denim shorts, which had the
victim's blood on it, belonged to Long. Long has not shown how
these statements are relevant to the issue of whether he received a
fair trial. It was clear from the evidence admitted at trial that
detectives investigated several people prior to focusing their
investigation on Long. Further, Ruby Gentry and Gilmore both
eventually identified Long as the suspect they saw fleeing the night
of the murder. These witnesses’ statements are not exculpatory and
do not constitute a Brady violation.
{¶27} The lead detective's “Request for Bank Records, John E.
Long III, Murder of Amerrintha Spikes.” The bank-records request
included the lead detective's statement that Gilmore and Crawford
had described the suspect as “a short, stocky built black man with a
light complexion [who] was ‘naked’ and had a very funny shaped
head.” Long contends Gilmore and Crawford's description of him
should have kept police from considering him as a suspect because
he is not stocky, but slim, and does not have a funny shaped head.
While the statements could have been used to challenge Crawford's
testimony at trial, we cannot say that this evidence undermines
confidence in the outcome of the trial where Crawford identified
Long as the man she saw fleeing the scene the night of the murder,
and where other witnesses, namely Jones and Howell, both
described the suspect as “slim” in their statement to police. The
state's failure to disclose this evidence to defense does not rise to a
Brady violation.
{¶28} Coroner's Chain-of-Custody Report. Long argues that the
chain-of-custody report demonstrates that the state suppressed
exculpatory DNA results—specifically a result that excluded him
and the victim as contributors to the blood found on the victim's
jeans. He claims that because the report demonstrates that the
victim's clothing was submitted to the coroner's office for testing
and because the result of that testing was not included on criminalist
Joan Burke's fifth laboratory report admitted at trial, which only
stated that the victim's blood was found on Long's denim shorts and
that Long was excluded as a donor of the semen found in a condom
located at the crime scene, then this proves two things: the victim's
clothes were tested and an exclusionary DNA test result was
suppressed. First, Joan Burke, a forensic examiner with the coroner's
office testified that she had tested the victim's clothing for the
presence of blood. This is not new evidence. Second, Long's theory
that the chain-of-custody report, along with Brandy Jones's
statements, proves that the state suppressed an exculpatory DNA test
result is not supported by any evidence in the record and is purely
speculative. There was no evidence, as Long claims, that establishes
that the murderer had cut himself and left blood at the crime scene.
Further, even if Long had been excluded as a contributor to the blood
on the victim's pants or other blood recovered at the scene, this does
not mean that he is exonerated. Long applied for DNA testing on
blood recovered from the crime scene in the past but the common
pleas court denied that application, finding that any result would not
have been outcome determinative.1 This court affirmed that
judgment. See Long, 1st Dist. Hamilton No. C-120521.
{¶29} Long also argues that Burke lied at trial about testing the
victim's clothing and about the type of evidence that was labeled as
“Item 17” on the chain-of-custody report. The report indicates that
Item 17 was the victim's pants. At trial, Burke was questioned about
her fifth laboratory report which included testing on items of
evidence numbered 16 and 18. When asked what and where was
“Item 17,” Burke replied that she did not know. She stated that her
“best educated guess” was that Item 17 was the defendant's denim
shorts because his shorts had been submitted to the coroner's office
for testing more than once. But she emphasized at trial that she was
just guessing and had no record of Item 17 in her notes. The chain-
of-custody report indicating that Item 17 was the victim's pants does
not prove that Burke was lying at trial and is simply not exculpatory
evidence. The suppression of the chain-of-custody report does not
constitute a due-process violation under Brady.
State v. Long, 2023-Ohio-132, ¶¶ 14-29 (Ohio App. 1st Dist. Jan. 18, 2023).
In rejecting Long’s suppression of evidence claims, the First District applied the correct
law, to wit, the clearly established precedent of the United States Supreme Court as of the date the
case was decided. “Clearly established law” refers to the holdings, as opposed to the dicta, of
Supreme Court decisions at the time of the relevant state court decision. Thaler v. Haynes, 559
U.S. 43, 47 (2010) (citations omitted), Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004),
quoting Williams v. Taylor, 529 U.S. 362, 412 (2000); Cornwell v. Bradshaw, 559 F.3d 398, 404-
405 (6th Cir. 2009).
“The ‘unreasonable application’ clause, 28 U.S.C. § 2254(d)(1), requires the state court
decision to be more than incorrect or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
“The state court’s application of clearly established law must be objectively unreasonable.” Id.
“[A] state court’s application of federal law is unreasonable ‘only if reasonable jurists would find
it so arbitrary, unsupported or offensive to existing precedent as to fall outside the realm of
plausible credible outcomes.’” Hill v. Mitchell, 2013 U.S. Dist. LEXIS 45919 (S. D. Ohio Mar.
29, 2013), quoting Barker v. Yukins, 199 F.3d 867, 872 (6th Cir. 1999).
“[T]he AEDPA standard is ‘difficult to meet, because the purpose of AEDPA is to ensure
that federal habeas relief functions as a guard against extreme malfunctions in the state criminal
justice system, and not as a means of error correction.’” This interpretation of the AEDPA standard
appears to grant much more deference to state decisions when we review them under AEDPA than
the earlier interpretation in Williams v. Taylor . . .” Peak v. Webb, 673 F.3d 465(6th Cir.
2012)(Merritt, J., concurring), quoting Greene v. Fisher, 565 U.S. 34 (2011)(unanimous opinion);
Jackson v. Houk, 687 F.3d 723 (6th Cir. 2012), again quoting Greene.
As the lengthy quotation from the First District’s decision shows, that court did not make
a slap-dash summary rejection of Long’s Brady and Napue claims. Instead, it discussed each piece
of “newly discovered evidence” and analyzed whether it was Brady material and whether or not it
was material, i.e. whether its presentation would likely have been outcome determinative.
Long attempts to overcome the First District’s decision in his Reply by offering his own
thirteen-page competing analysis, presented in italic type between quoted paragraphs of the
appellate decision (Reply, ECF No. 25, PageID 2920-33). Taken together, Long’s critiques do not
show that the First District unreasonably determined the facts or unreasonably applied the law in
deciding Long’s suppression of evidence claim. As that court held, the only question at trial was
the identity of the murderer and compelling physical evidence – the victim’s blood on his shorts
left at the scene and a bus ticket in his name in those shorts – places Long at the scene at the time
of the murder. The weight of that physical evidence is not significantly undermined by newly-
discovered evidence which might have been used in impeachment.
Ineffective Assistance of Trial Counsel Claim
In his second ground for relief, Long asserts he was deprived of the effective assistance of
trial counsel when his attorney failed to investigate pretrial statements of Shelise Gilmore, Patrina
Crawford, Melissa Howell, and Ruby Gentry and when he failed to secure the trial testimony of
Brandy Jones.
The First District Court of Appeals considered this claim on Long’s appeal from denial of
his motion for new trial and held:
{¶31} Long contends that he is entitled to a new trial based on his
trial counsel's ineffectiveness by failing to secure Brandy Jones as a
witness and failing to investigate “the DNA record” as well as the
statements of potential witnesses Wyatt, Gilmore, Gentry, and
Howell.
{¶32} The decision to grant or deny a motion for a new trial based
upon a claim of ineffective assistance of counsel generally lies
within the sound discretion of the trial court. That discretion cannot
be disturbed on appeal absent a showing that the trial court acted
unreasonably, arbitrarily, or unconscionably. State v. Hedgecoth, 1st
Dist. Hamilton No. C-020480, 2003-Ohio-3385, ¶ 22. To set aside
a conviction and grant a new trial based on ineffective assistance of
counsel, a defendant must establish two things. First, the defendant
must demonstrate that his trial counsel's performance was deficient.
Second, the defendant must demonstrate that the deficient
performance resulted in prejudice; specifically, the defendant must
establish that there exists a reasonable probability that the outcome
of the trial would have been different were it not for his attorney's
ineffectiveness. Id. at ¶ 23, citing State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), and Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶33} Here, Long argues that his trial counsel was ineffective in
failing to secure Brandy Jones as a witness because an “investigator”
spoke with Jones and then sent Long's trial counsel a memo
indicating that Jones was a “material witness.” But that memo also
indicated that Jones described the man who had tried to enter the
apartment building the night of the murder as having dreadlocks,
which Long had. Further, and more importantly, Jones identified
Long from a photo array as the “bloodied” man who was trying to
enter the apartment building where she worked. Because Jones
would have likely testified consistently with the statements she gave
to police and in the memo, we cannot conclude that trial counsel's
performance was deficient. But even if it was deficient, Long cannot
demonstrate that he was prejudiced by his counsel's failure to secure
Jones as a witness. Nor can Long show how his trial counsel's
performance in any failing to investigate certain witnesses’
statements or “the DNA record” was deficient and/or prejudiced his
defense. None of the statements submitted by Long and discussed
above with respect to the alleged Brady violations, nor the “DNA
record,” which does not contain an exculpatory DNA-test result,
would have changed the outcome of Long's trial. Accordingly, Long
cannot demonstrate ineffective assistance of counsel.
State v. Long, 2023-Ohio-132, ¶¶ 31-33 (Ohio App. 1st Dist. Jan. 18, 2023).
Because the First District decided this claim on the merits, Long’s burden in habeas is to
show that the decision is an objectively unreasonable application of Supreme Court precedent or
is based on an unreasonable determination of the facts.
Regarding witness Brandy Jones, Long posits certain facts she might have testified to and
the First District posited that she might well have testified consistently with the statement she made
to the investigator which would have been unfavorable to Long. Although not noted by the First
District, Long admits that his counsel caused a trial subpoena to be served on Jones which she did
not honor. Long argues his trial counsel provided ineffective assistance when he “failed to ensure
the Jones honored her subpoena.” (Reply, ECF No. 25, PageID 2934). How was he supposed to
have done that? By getting the trial judge to stop the trial in the middle and issue an arrest warrant
for Jones? This argument is symptomatic of the sort of speculative hindsight from twenty years
later that habeas courts are admonished to avoid. It is very unlikely a trial judge of a busy
metropolitan general jurisdiction court would require a jury to sit and wait on the execution of a
contempt warrant.
Regarding alleged deficient performance from failure to investigate the pretrial statements
of other witnesses, the First District considered each of these witnesses and found that failure to
disclose their pretrial statements was not a Brady violation so that Long suffered no prejudice from
the asserted failure to investigate. Long’s response lumps these witnesses together and asserts
“[d]efense counsel also failed to conduct a thorough investigation even after he received
information that should have compelled one. Therefore, Long was denied the effective assistance
of counsel that was predicted [sic] on the State intentional suppression of evidence.” (Reply, ECF
No. 25, PageID 2935).
The governing standard for ineffective assistance of counsel claims is found in Strickland
v. Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel was
not functioning as the "counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction
or death sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at
the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a 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."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,
supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of
a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,
379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a more-
probable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
The First District correctly cited Strickland as providing the clearly established Supreme
Court precedent on ineffective assistance of trial counsel. Long has failed to show its application
of Strickland was objectively unreasonable, either as to deficient performance or as to prejudice.
Long’s ineffective assistance of trial counsel claim should therefore be dismissed on the merits.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Amended Petition be dismissed with prejudice. Because reasonable jurists would not disagree
with this conclusion, it is also recommended that Petitioner be denied a certificate of appealability
and that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and
should not be permitted to proceed in forma pauperis.
March 19, 2025.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is recetved. Such
objections shall specify the portions of the Report objected to and shall be accompanied by a
memorandum of law in support of the objections. A party may respond to another party’s
objections within fourteen days after being served with a copy thereof. Failure to make objections
in accordance with this procedure may forfeit rights on appeal. #
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