Padilla-Torres v. Warden, London Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

OMAR E. PADILLA-TORRES,

Petitioner, : Case No. 2:24-cv-4274

- vs - District Judge Algenon L. Marbley

Magistrate Judge Michael R. Merz

WARDEN, London Correctional

Institution,

:

Respondent. :

DECISION AND ORDER ON PETITIONER’S MOTION FOR

DISCOVERY

This habeas corpus case, brought pro se by Petitioner Omar Padilla-Torres under 28 U.S.C.

§ 2254, is before the Court upon Petitioner’s Motion for Discovery which asks the Court “to order

the respondent, by and through the State of Ohio, to furnish documents Audio Recordings along

with a bite back [?] to the attached interrogatories and Written Depositions.” (ECF No. 11, PageID

1221).

Petitioner’s Motion seeks evidence in support of his First Ground for Relief which reads:

GROUND ONE: The cumulative effect of the State’s failure to

provide certain discoverable evidence resulted in a violation of Mr.

Padilla-Torres [sic] right to due process required by the U.S. and

Ohio Constitutions.

Supporting Facts: There was favorable evidence that was not

provided to the defendant. As the brief relates 2 categories of

suppressed evidence was identified by the Petitioner. These

recordings are favorable and potentially useful to Padilla-Torres.

Petition (ECF No. 1, PageID 5).

Violations of the Ohio Constitution are not cognizable in a federal habeas corpus

proceeding. Federal habeas corpus is available only to correct federal constitutional violations.

28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780

(1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is

not the province of a federal habeas court to reexamine state court determinations on state law

questions. In conducting habeas review, a federal court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62,

67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.);

Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar, J. concurring). It follows that

discovery is not warranted on claims of violation of the Ohio Constitution.

However, the Magistrate Judge reads Ground One as raising primarily a claim of violation

of the Due Process Clause of the Fourteenth Amendment. Under Brady v. Maryland, 373 U.S. 83

(1963), the State has a duty to produce exculpatory evidence in its possession in a criminal case.

If the State withholds evidence and it is material, the conviction must be reversed.

Padilla-Torres raised a Brady claim as his first assignment of error on direct appeal and the

Ohio Tenth District Court of Appeals decided it as follows:

{¶ 60} In his first assignment of error, appellant argues the state

suppressed evidence—recordings of conversations between A.C.

[Petitioner’s ex-wife] and appellant—in violation of his

constitutional right to due process and Brady v. Maryland, 373 U.S.

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). (Appellant's Brief at 14-

19.) He explains why he believes additional recordings were

withheld, destroyed, or lost and suggests the trial court erred in

admitting the six recordings over defense counsel's objection

under Brady.

1. Controlling Law

{¶ 61} The crux of appellant's arguments begins with Brady,

wherein the Supreme Court of the United States held that due

process requires the prosecution to provide to the defense any

evidence favorable to the accused that is material either to guilt or

punishment. 373 U.S. at 83, 87-88, 83 S.Ct. 1194. See also Smith v.

Cain, 565 U.S. 73, 75, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012) (a

criminal defendant's due process rights are violated when the state

“withholds evidence that is favorable to the defense and material to

the defendant's guilt or punishment”). The Supreme Court

subsequently held that such obligation includes evidence affecting

the credibility of a prosecution witness, including impeachment

evidence. See Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct.

763, 31 L.Ed.2d 104 (1972). A Brady violation occurs when: (1) the

state suppresses evidence, either willfully or inadvertently; (2) the

evidence is favorable to the defendant as either exculpatory

(material) or impeachment evidence; and (3) prejudice has resulted

to the defendant. State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-

783, 192 N.E.3d 470, ¶ 19, citing Strickler v. Greene, 527 U.S. 263,

281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Prejudice occurs

when there is a reasonable probability that the result of the trial

would have been different had the evidence been disclosed to the

defense. Id., citing Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct.

1555, 131 L.Ed.2d 490 (1995), quoting United States v. Bagley, 473

U.S. 667, 678, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

{¶ 62} If a defendant cannot demonstrate that undisclosed or lost

evidence is materially exculpatory, then, to establish a due process

violation, the defendant must demonstrate the police or prosecution

lost, destroyed, or failed to preserve the “potentially useful”

evidence in bad faith. State v. Geeslin, 116 Ohio St.3d 252, 2007-

Ohio-5239, 878 N.E.2d 1, ¶ 10; Arizona v. Youngblood, 488 U.S.

51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). “The term ‘bad

faith’ generally implies something more than bad judgment or

negligence.” (Citations omitted.) State ex rel. Horton v. Kilbane,

167 Ohio St.3d 413, 2022-Ohio-205, 194 N.E.3d 288, ¶ 31. It

“imports a dishonest purpose, moral obliquity, conscious

wrongdoing, breach of a known duty through some ulterior

motive[,] or ill will partaking of the nature of fraud.” (Citations

omitted.) Id. See also State v. Wolf, 154 Ohio App.3d 293, 2003-

Ohio-4885, 797 N.E.2d 109, ¶ 14 (7th Dist.), quoting Hoskins v.

Aetna Life Ins. Co., 6 Ohio St.3d 272, 276, 452 N.E.2d 1315 (1983).

A continuing cavalier attitude toward preservation of evidence with

an abundantly apparent evidentiary value can, under certain facts

and circumstances, amount to “bad faith.” See, e.g., State v.

Durnwald, 163 Ohio App.3d 361, 2005-Ohio-4867, 837 N.E.2d

1234, ¶ 31-36 (6th Dist.); State v. Benson, 152 Ohio App.3d 495,

2003-Ohio-1944, 788 N.E.2d 693, ¶ 14-15 (1st Dist.).

2. Trial court proceedings related to potentially missing

recordings

{¶ 63} Although trial counsel knew about the six recorded

conversations before trial began, neither the prosecutor nor

appellant's defense counsel knew A.C. would testify she recorded

these conversations at the request of law enforcement. (See, e.g., Tr.

Vol. II at 299; Tr. Vol. III at 438.) After A.C. testified that Detective

Haas asked her to record her conversations with appellant,

appellant's trial counsel moved for either a continuance or a mistrial

pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966). (Tr. Vol. II at 299-302.) These oral motions

were predicated on the argument that such statements were

unconstitutionally obtained by a third-party actor on behalf of the

state because “[n]o Miranda rights were given when these

statements were elicited from [appellant].” (Tr. Vol. II at 300.) Had

such information been known prior to trial, appellant's counsel

argued, the defense would have moved to suppress the recordings

before trial commenced. (Tr. Vol. II at 300.) In denying those

motions, the trial court noted that nothing in the record suggested

appellant's statements to A.C. were obtained while he was “in

custody,” which is necessary for purposes of Miranda. (Tr. Vol. II

at 301.) See, e.g., Cleveland v. Oles, 152 Ohio St.3d 1, 2017-Ohio-

5834, 92 N.E.3d 810, ¶ 9-24. Appellant does not challenge that

ruling on appeal.

{¶ 64} After the six recorded conversations were played at trial

(without objection), A.C. testified on cross-examination that,

between August and October 2018, she recorded “probably 100”

conversations with appellant. (Tr. Vol. II at 335-37. See also Tr.

Vol. II at 295-96.) Some of those recordings were lost when her

phone malfunctioned, while others (beyond the six played at trial)

may have been deleted by her, not turned over to police, or provided

to police but not produced in discovery to appellant's counsel.

(See Tr. Vol. II at 337-38; Appellant's Brief at 14-19. See also Tr.

Vol. II at 296.) The record shows that the prosecutor and appellant's

counsel were surprised by A.C.’s mid-trial revelation about the

possible existence of more than six recordings, including potentially

two more recordings she gave to law enforcement. (See Tr. Vol. II

at 337-38; Tr. Vol. III at 438.) Yet, appellant's trial counsel did not

move the trial court for any remedial action—mistrial, continuance,

exclusion of evidence, or otherwise—based on Crim.R.

16 or Brady at that time.

{¶ 65} When the state moved to admit the six recordings as evidence

the day after A.C. testified, appellant's trial counsel objected,

citing Brady. (See Tr. Vol. II at 437-38.) In response, the prosecutor

represented that he had not been made aware of any other possible

recordings until A.C. testified at trial. (Tr. Vol. III at 438.)

Appellant's counsel did not refute this representation; instead, he

requested a jury instruction concerning missing evidence, which is

the subject of appellant's second assignment of error. (Tr. Vol. II at

438.)

{¶ 66} The trial court ultimately admitted the six recordings over

the defense's objection, but suggested that if the defense “end[ed] up

calling the detective or anything like that, that [issue relating to

potentially withheld or destroyed evidence] could be explored as

well.” (Tr. Vol. II at 438-39.)

{¶ 67} During the defense's case-in-chief, appellant's trial counsel

called Detective Haas as a witness. Detective Haas testified that

Detective McGuire handled this portion of the investigation and she

did not review or receive A.C.’s recordings. (Tr. Vol. III at 473-74.)

And although Detective McGuire was subpoenaed for trial (May 28,

2021 Subpoena), neither the state nor defense counsel elected to call

him as a witness.

3. Analysis

{¶ 68} Appellant argues in his first assignment of error that

additional recordings of conversations he had with A.C. existed (at

least at some point) and would have supported his testimony and

weakened the inculpatory value of the six recordings played for the

jury and admitted into evidence at trial.

{¶ 69} Appellant and A.C. both testified about having many in-

person conversations after R.S. reported sexual abuse to police.

(See, e.g., Tr. Vol. III at 500-03, 528; Tr. Vol. II at 293-96.)

Appellant testified that he repeatedly denied R.S.’s allegations

during these conversations. (Tr. Vol. III at 517-22, 528-29, 534-36.)

The recordings played for the jury did not, however,

include adamant or unequivocal denials by appellant.

{¶ 70} During his testimony, Appellant claimed the recordings

played for the jury depicted conversations that took place after A.C.

had “been hammering” him for months about R.S.’s allegations and

suggested what he said in those recordings was what he believed

was necessary for “her to stop.” (Tr. Vol. III at 518-19, 528-29.)

Appellant described A.C. questioning him about R.S.’s allegations

while threatening to harm herself with a razor on one occasion. (Tr.

Vol. III at 520-21.) But that conversation was not among the six

played at trial, and it is unclear precisely what impact he purports

that interaction had on any subsequent conversations. (See Tr. Vol.

III at 520-21.) Appellant also proffered in his trial testimony that,

when the inculpatory recordings were made, he was in a bad mindset

and was desperate to see his children (which A.C. facilitated, on

some occasions when they met). (Tr. Vol. III at 518, 520-22, 532-

36.) At trial, appellant expressly denied engaging in any sexual acts

with R.S., and speculated that his repeated denials of the allegations

during conversations with A.C. would be reflected on the other

possible recordings A.C. may have made. (Tr. Vol. III at 517-21,

522-23, 534-36.)

{¶ 71} Appellant's Brady claim fails, however, at its inception.

Although he speculates about the nature of the conversations that

would have been on other potential recordings that may have, at

some point, existed, it is well-established that mere speculation—

without more—is insufficient to support a

claimed Brady violation. See, e.g., State v. Sullivan, 10th Dist. No.

13AP-861, 2014-Ohio-1260, 2014 WL 1347100, ¶ 20, citing State

v. Moore, 10th Dist. No. 11AP-1116, 2013-Ohio-3365, 2013 WL

3968166, ¶ 43, and State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-

2221, 767 N.E.2d 678, ¶ 60. Everything appellant claims on appeal

about possible recordings of conversations he had with A.C.—from

the number, content, and whether the state knew (or should have

known) about them—is based on speculation.

{¶ 72} A.C. testified she was not sure how many conversations she

recorded, but conjectured “probably 100.” (Tr. Vol. II at 337.) Some

of those recordings, she testified, were lost because her “one phone

burnt up after a few months of recording.” (Tr. Vol. II at 296.)

Nothing in the record indicates, however, precisely (or even

approximately) how many recordings were lost as a result. If

anything, the record suggests most of A.C.’s recordings were lost

due to the malfunctioning of her phone. (See Tr. Vol. II at 337-38.)

{¶ 73} Appellant contends in his brief that “[A.C.] claims she

provided at least two additional recordings to detectives.”

(Appellant's Brief at 17.) But that claim is itself a speculative

extrapolation of her actual testimony, which is set forth, in relevant

part, below:

[DEFENSE:] And of those 100 -- or hundreds of

recordings, you turned over six to the Columbus police,

correct?

[A.C.:] Actually, no, there are more. Like, there were more.

I'm not sure why there's only six here.

* * *

[DEFENSE:] How many more were not turned over?

[A.C.:] There's probably two more that weren't. Well, they

should have been turned over. I don't know why they

weren't.

(Tr. Vol. II at 337.)

Based on this testimony, it is not entirely clear whether A.C. meant

there were two additional recordings in her possession that she did

not turn over to police or that she gave two additional recordings to

police that were not played by the state at trial. The defense did not

attempt to clarify her testimony, and Detective Haas was not able to

offer additional information because Detective McGuire took A.C.’s

call and dealt with the recordings. (Tr. Vol. III at 473-74. See

also Tr. Vol. II at 332, 340.)

{¶ 74} Moreover, Detective McGuire was not called to testify at

trial. Thus, there is no testimony in the record from the detective

who received and reviewed the recordings about the number and

content of the recordings that appellant now argues on appeal were

unconstitutionally withheld. And, of note, A.C. was not asked to

describe the conversations she recorded but, for whatever reason,

were not played at trial.

{¶ 75} Without some evidence beyond appellant's hypotheses—that

additional recordings actually existed and contained material

exculpatory evidence—appellant cannot prove the state

violated Brady. As such, we find appellant failed to prove the

recordings at issue would have provided material exculpatory

evidence.

{¶ 76} Because the content of the possible additional recordings is

unknown and only potentially useful, appellant must establish bad

faith on the state's part to succeed with a due process

claim. See Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878

N.E.2d 1 at ¶ 10; Youngblood, 488 U.S. at 57-58, 109 S.Ct. 333. The

evidence appellant argues was unconstitutionally suppressed falls

into three categories: (1) recordings in the possession of law

enforcement that were not given to the defense; (2) recordings lost

due to the malfunction of A.C.’s phone; and (3) recordings A.C. may

have intentionally deleted.

{¶ 77} As to the first category, we reiterate that, as described above,

appellant has not provided compelling proof that any of these

recordings existed or were available to the state. It is true that

the Brady rule “encompasses evidence ‘known only to police

investigators and not to the prosecutor.’ ” Strickler, 527 U.S. at 280-

81, 119 S.Ct. 1936, quoting Kyles, 514 U.S. at 438, 115 S.Ct. 1555.

And, “[i]n order to comply with Brady, therefore, ‘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., quoting Kyles at 437, 115 S.Ct. 1555. But the record

does not clearly establish that any additional recordings were, in

fact, provided to law enforcement. Further, without evidentiary

support or any legal argument, appellant contends that we should

somehow infer bad faith by either the police or the prosecutor. We

decline to speculate about malfeasance by the state when the defense

did not adequately attempt to develop the record below by, for

instance, calling Detective McGuire as a witness or attempting to

clarify A.C.s testimony on this matter. Accordingly, the arguments

appellant makes with respect to this first category of suppressed

evidence are not well-taken.

{¶ 78} As to the second and third categories of suppressed

evidence—lost or deleted recordings—appellant does not point to

any authority for the proposition that Brady requires the state to

secure and ensure the preservation of evidence not in its possession

from third parties. We recognize A.C. claimed Detective Haas asked

her to start recording her conversations with appellant. (See, e.g., Tr.

Vol. II at 294, 327, 334.) And while Detective Haas had no

recollection of telling A.C. to do this, it is true that Detective Haas

acknowledged “it would not be unusual” for her to endorse a

witness's offer to try to obtain recorded admissions from a suspect

in a case such as this one. (Tr. Vol. III at 466-67.) But we do not

find this evidence sufficiently establishes that A.C. was acting on

behalf of the state when she recorded her conversations with

appellant.

{¶ 79} Because this case involves the potential disposal of evidence

by a third-party who was not acting on behalf of or at the direction

of the state, it is difficult for appellant to connect the destruction of

evidence to bad faith on the part of the state. Nothing in the record

suggests the state was even aware of the recordings lost on A.C.’s

phone or that A.C. may have deleted. “Without state action, the

panoply of constitutional protections generally does not

apply.” State v. Fornshell, 1st Dist. No. C-180267, 2021-Ohio-674,

2019 WL 11816608, ¶ 11, citing Bouquett v. St. Elizabeth Corp., 43

Ohio St.3d 50, 53, 538 N.E.2d 113 (1989) (appellee required to

show state action to “warrant the constitutional protection of due

process”).

{¶ 80} Our determination that A.C. was not a state actor is fatal to

appellant's arguments concerning lost or destroyed evidence. But,

even if she were a state actor, his arguments are without merit. As

to the recordings lost when A.C.’s phone malfunctioned (the second

category), appellant offers no explanation in his brief as to how A.C.

acted in bad faith. Nor do we believe the record suggests she did.

With regard to the third category, appellant contends in his brief that

A.C. “expressly stated she deleted recordings to prevent [appellant]

from gaining access to them.” (Appellant's Brief at 19, citing Tr.

Vol. II at 296.) But he mischaracterizes her testimony. A.C. stated

that she first downloaded the recordings to her daughter's

phone before deleting them from her own phone. (Tr. Vol. II at

296.) A.C. was not asked if she ever intentionally deleted recordings

before such transfer occurred.

{¶ 81} Without a showing that the evidence at issue was materially

exculpatory or that the state acted in bad faith—let alone a showing

of the existence of any suppressed evidence or state action—we

overrule appellant's first assignment of error.

State v. Padilla-Torres, 2023-Ohio-2035 (Ohio App. 10th Dist. Jun. 20, 2023).

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);

Cunningham v. Shoop, 23 F.4th 636, 650 (6th Cir. 2022); 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.

Petitioner has not shown either that the Tenth District’s decision is an objectively

unreasonable application of Brady or based on an unreasonable determination of the facts in light

of the evidence presented in the state court proceedings. In overruling Petitioner’s Miranda

objection to the content of recordings made by A.C., the court determined Petitioner was not in

custody and A.C. was not a state actor. A fortiori, evidence in A.C.’s sole possession could not

have been Brady material. The recordings known to exist and which were played to the jury were

in fact turned over in discovery. If the posited additional two recordings were turned over, the

relevant witness would have been Detective McGuire who was successfully subpoenaed, but never

called to the stand. Thus the Tenth District’s conclusion that Petitioner’s assertion of withheld

Brady material was speculative is fully supported by the record. On that basis, the Motion for

Discovery is denied.

Additionally, Petitioner apparently seeks the discovery in order to add to the record for

determining the merits of his Brady claim. But in deciding whether the Tenth District’s decision

was reasonable, this Court is limited to reviewing the record before that court. Cullen v. Pinholster,

563 U.S. 170 (2011). Pinholster bars a federal court “from admitting new evidence upon which

to assess the reasonableness of a state court's constitutional analysis.” Upshaw v. Stephenson, 97

F. 4th 365, 372 (6th Cir. 2024), quoting Mitchell v. Genovese, 974 F.3d 638, 647 (6th Cir. 2020).

Although Pinholster itself involved evidentiary hearings, it has been extended to proposed

expansions of the record under Habeas Rule 7. Moore v. Mitchell, 708 F.3d 760, 780-784 (6th

Cir. 2013). Moore also holds this restriction applies even if the record is expanded on joint motion.

There is no good cause for discovery which cannot produce evidence which the Court can consider.

Pinholster precludes the discovery Petitioner seeks.

Conclusion

For the foregoing reasons, the Court concludes there is not good cause to order the sought

discovery. Petitioner’s Motion for Discovery is DENIED.

IT IS SO ORDERED.

September 5, 2025.

s/ Michael R. Merz

United States Magistrate Judge