Petition for Writ of Certiorari — William T. Montgomery, Petitioner v. Ohio

NO.

(CAPITAL CASE)

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________

WILLIAM T. MONTGOMERY,

Petitioner,

v.

STATE OF OHIO,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the Supreme Court of Ohio

__________________________

PETITION FOR WRIT OF CERTIORARI

__________________________

John Q. Lewis

*Counsel of Record

Jon W. Oebker

Amanda N. Johnson

TUCKER ELLIS LLP

950 Main Avenue, Suite 1100

Cleveland, Ohio 44113

(216) 696-5325

john.lewis@tuckerellis.com

jon.oebker@tuckerellis.com

amanda.johnson@tuckerellis.com

Counsel for Petitioner

3587146.1

QUESTION PRESENTED (CAPITAL CASE)

The State of Ohio is poised to execute an innocent man. Petitioner William T.

Montgomery, (“W.T. Montgomery”) is going to be executed on April 11, 2018 for the

aggravated murders of Debra Ogle (“Ogle”) and Cynthia Tincher (“Tincher”). At

trial, the prosecution argued a very fact specific timeline of events wherein W.T.

Montgomery murdered both girls on March 8, 1986. The prosecution’s timeline

specifically argued that Ogle was murdered first, and then Tincher was murdered

second in order to cover up the tracks of Ogle murder.

This timeline was the

centerpiece of the prosecution’s case and was derived from Glover Heard (“Heard”),

a co-defendant who made a deal with the prosecution.

In 2007, the federal district court granted W.T. Montgomery’s habeas petition

and ordered a new trial because the prosecution withheld exculpatory evidence (a

police report in which a classmate of Debra Ogle reported seeing her alive prior to

1:20 a.m. on March 12) that could challenge the accuracy of the prosecution’s

timeline and sequence of the murders. On appeal, the original panel of the U.S.

Court of Appeals for the Sixth Circuit affirmed, but upon en banc review, a divided

court (10-5) held that the withheld police report was not substantially material to

warrant reversal.

But the district court opinion that was reviewed by the Sixth Circuit was

incomplete. After the Sixth Circuit reversed the district court’s grant of habeas

relief, W.T. Montgomery, for the first time, obtained crucial scientific evidence – an

expert forensic report – that confirmed that the prosecution’s trial timeline was

false.

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Because it would have also shattered the prosecution’s timeline, this new

piece of evidence would have confirmed the materiality of the withheld police report.

In describing the impact of this expert report, the state prosecutors recently stated:

Establishing at trial that Ogle was not killed on March 8th would have

delivered a severe blow to the State’s case because it would have

directly contradicted Heard’s testimony, it would have contradicted the

prosecution’s time line of the murders and it would have eliminated

defendant’s motivation for killing Tincher to cover up his murder of

Ogle.

(Appellee brief at p. 15).

Armed with this expert report, W.T. Montgomery attempted to come back

and have an Ohio court look at this exculpatory evidence for the first time, but even

though the state appellate court determined that W.T. Montgomery was

“unavoidably prevented” from developing the expert report sooner, the Ohio courts

refused to even consider this new evidence that confirmed W.T. Montgomery was

convicted on a false set of facts. Instead of reviewing the merits of this new expert

report and the fact that it confirmed the materiality of the withheld police report,

the Ohio courts relied on a new arbitrarily created barrier to Ohio criminal

defendants seeking a new trial.

Specifically, the Ohio court of appeals held that, even though this case had

been pending for 30 years, W.T. Montgomery’s attorney waited too long (nine

months) to file the motion for new trial in state court. In other words, even in the

absence of any prejudice to the prosecution, a defendant—who was cheated by the

prosecution at trial, was “unavoidably prevented” from developing evidence that

confirms the materiality of withheld evidence, and was sentenced to death on a false

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set of facts—now faces a judicially-created, uncodified and arbitrary statute of

limitations dictating when a motion for new trial to rectify an unfair trial must be

filed.

Based on this narrative, the question presented for review is:

Does Ohio’s arbitrary, undefined standard for filing delayed motions for new

trial violate the Due Process and Equal Protection Clauses of the United States

Constitution?

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PARTIES TO THE PROCEEDINGS BELOW

The parties are the same as those listed in the caption.

RULE 29.6 STATEMENT

Petitioner is not a corporate entity.

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TABLE OF CONTENTS

QUESTION PRESENTED (CAPITAL CASE) .............................................................. i

PARTIES TO THE PROCEEDINGS BELOW ............................................................ iv

RULE 29.6 STATEMENT ............................................................................................ iv

TABLE OF CONTENTS ................................................................................................ v

TABLE OF AUTHORITIES ......................................................................................... vi

OPINIONS BELOW ...................................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 1

CONSTITUTIONAL PROVISIONS.............................................................................. 6

STATEMENT OF THE CASE ....................................................................................... 6

I.

PROCEDURAL BACKGROUND ...................................................................................... 6

II.

STATEMENT OF FACTS ............................................................................................ 11

A.

The Murders and Subsequent Investigation ............................................................... 11

B.

Heard’s Story .............................................................................................................. 13

C.

The Police Report Withheld by the State. .................................................................. 14

D.

Debra Ogle’s Body ..................................................................................................... 15

E.

Expert Report .............................................................................................................. 16

REASONS FOR GRANTING THE WRIT .................................................................. 18

CONCLUSION............................................................................................................. 27

INDEX OF APPENDICES

Appendix A - State v. Montgomery, 2017-Ohio-8371,151 Ohio St. 3d 1425, 84 N.E.3d

1063 (November 1, 2017).

Appendix B - State v. Montgomery, Lucas App. No. L-15-1282, 2016-Ohio-7527 (Oct.

28, 2016).

Appendix C - State v. Montgomery, No. CR86–5450, slip. op. (Ohio Ct. of Common

Pleas, Sept. 30, 2015).

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TABLE OF AUTHORITIES

Cases

Ayestas v. Davis, 137 S.Ct. 1433 (2017) ..................................................................... 22

Brady v. Maryland, 373 U.S. 83 (1963)....................................................................... 25

Donnelly v. DeChristoforo, 416 U.S. 637 (1974). ........................................................ 26

Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). ............... 19

Fullan v. Comm’r of Corr. of N.Y., 891 F.2d 1007, 1010 (2d. Cir. 1989) ................... 21

Griffin v. Illinois, 351 U.S. 12 (1956) .......................................................................... 21

Martel v. Clair, 565 U.S. 648, 659 (2012). ............................................................ 22, 23

Matthews v. Ishee, 486 F.3d 883 (2007). .................................................................... 25

McFarland v. Scott, 512 U.S. 849, 855, 859 (1994) .................................................... 23

Montgomery v. Bagley, 482 F. Supp. 2d 919, 939 (N.D. Ohio 2007). ................ 4, 9, 15

Montgomery v. Bagley, 581 F.3d 440 (6th Cir. 2009)......................................... 4, 9, 15

Montgomery v. Bobby, 654 F.3d 668 (6th Cir. 2011). ......................................... 4, 9, 15

Montgomery v. Ohio, 502 U.S. 1111, 112 S.Ct 1215, 117 L.Ed.2d 452 (1992). ....... 2, 8

State v. Anderson, 10th Dist. No. 12AP–133, 2012-Ohio-4733, 2012 WL 4848949, ¶

17............................................................................................................................... 21

State v. Montgomery, 2016-Ohio-7527. .................................................................. 5, 10

State v. Montgomery, 2017-Ohio-8371, 151 Ohio St. 3d 1425, 84 N.E.3d 1063..... 1, 6,

10

State v. Montgomery, 61 Ohio St.3d 410, N.E.2d 410 (1991). ................................. 2, 8

State v. Montgomery, 67 Ohio St.3d 1487, 621 N.E.2d 409 (Table) (Oct. 27, 1993). . 3,

8

State v. Montgomery, 86 Ohio St.3d 1402, 711 N.E.2d 231 (Table) (1999). ............ 3, 8

State v. Montgomery, Lucas App. No. L-15-1282, 2016-Ohio-7527 (Oct. 28, 2016)... 1,

5

State v. Montgomery, Lucas App. No. L-86-395, 1988 WL 84427 (Aug. 12, 1988) . 2, 7

State v. Montgomery, Lucas App. No. L-86-395, 1993 WL 110901 (March 3, 1993) . 3,

8

State v. Montgomery, Lucas App. No. L-98-1026, 1999 WL 55852 (Feb. 5, 1999).. 3, 8

State v. Montgomery, No. CR86–5450, slip op. (Ohio Ct. Common Pleas, Aug. 23,

1996) ........................................................................................................................... 8

State v. Montgomery, No. CR86–5450, slip. op. (Ohio Ct. of Common Pleas, Dec. 31,

1997), ...................................................................................................................... 3, 8

State v. Montgomery, No. CR86–5450, slip. op. (Ohio Ct. of Common Pleas, Sept. 30,

2015). ...................................................................................................................... 1, 5

State v. Montgomery, No. L–96–308, slip. op. (Ohio Ct.App. Oct. 24, 1997). ......... 3, 8

U.S. ex rel. Payton v. Rundle, 472 F.2d 36, 40 (3d Cir. 1972) ................................... 21

United States v. Bagley, 473 U.S. 667 (1984). ............................................................ 25

Williams v. Oklahoma City, 395 U.S. 458, 459 (1969) ............................................... 21

Statutes

18 U.S.C § 3599(f) .................................................................................................. 29, 30

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18 U.S.C. § 3599(d) ...................................................................................................... 30

28 U.S.C. §1254(1). ...................................................................................................... 13

Rules

Ohio R. Crim. P. 33(A)(6)............................................................................................. 17

Constitutional Provisions

U.S. CONST. amend. V. ................................................................................................. 13

U.S. CONST. amend. XIV .............................................................................................. 14

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PETITION FOR A WRIT OF CERTIORARI

__________________________

OPINIONS BELOW

The Order of the Ohio Supreme Court summarily denying Petitioner William

Montgomery’s memorandum in support of jurisdiction on November 1, 2017, and is

attached as Appendix A. State v. Montgomery, 2017-Ohio-8371,151 Ohio St. 3d

1425, 84 N.E.3d 1063 (November 1, 2017).

The Opinion of the Ohio Sixth District Court of Appeals affirming the denial

of Petitioner Montgomery’s Motion for Leave to File a Motion for New Trial on

October 28, 2016, and is attached as Appendix B. State v. Montgomery, Lucas App.

No. L-15-1282, 2016-Ohio-7527 (Oct. 28, 2016).

The Memorandum of Opinion and Order of the trial court, in which the court

denied Petitioner Montgomery’s Motion for Leave to File a Motion for New Trial on

October 1, 2015, and is attached as Appendix C. State v. Montgomery, No. CR86–

5450, slip. op. (Ohio Ct. of Common Pleas, Sept. 30, 2015).

STATEMENT OF JURISDICTION

In March 1986, a Lucas County grand jury charged William T. Montgomery

and Glover Heard with the aggravated murders of Debra Ogle and Cynthia Tincher

in Case No. CR865450. After being charged with aggravated murder, Heard made

a deal with the prosecutors.

In exchange for Heard’s testimony against W.T.

Montgomery, the State of Ohio agreed to drop Heard’s two counts of aggravated

murder down to one count of complicity to murder. Additionally, the State of Ohio

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agreed to drop altogether an unrelated charge of gross sexual imposition against

Heard involving a five-year-old child. (Tr. 1765).

The case against W.T. Montgomery proceeded to trial on September 29, 1986.

Relying on Heard’s testimony, the State argued W.T. Montgomery shot and killed

Ogle and Tincher on March 8, 1986. The State’s theory was that Ogle was shot first

in a robbery and Tincher was shot second because she could place the two men with

Ogle. (Tr. 1164). The jury found W.T. Montgomery guilty of murder for purposely

causing the death of Tincher.

The jury also found W.T. Montgomery guilty of

aggravated murder for purposely causing the death of Ogle with two specifications:

(1) the murder was part of a course of conduct involving the purposeful killing of

two or more person; and (2) the murder was committed while committing or

attempting to commit aggravated robbery.

W.T. Montgomery was sentenced to 15

years to life for the murder of Tincher. Following the mitigation phase of the trial,

the jury recommended and the trial judge imposed a sentence of death for the

murder of Ogle.

On direct appeal, the Ohio court of appeals and the Supreme Court of Ohio

affirmed his conviction and sentence. State v. Montgomery, Lucas App. No. L-86395, 1988 WL 84427 (Aug. 12, 1988); State v. Montgomery, 61 Ohio St.3d 410, 575

N.E.2d 410 (1991). The United States Supreme Court denied W.T. Montgomery’s

petition for writ of certiorari. Montgomery v. Ohio, 502 U.S. 1111, 112 S.Ct 1215,

117 L.Ed.2d 452 (1992).

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The Ohio appellate court denied his application for delayed reconsideration

claiming ineffective assistance of appellate counsel. State v. Montgomery, Lucas

App. No. L-86-395, 1993 WL 110901 (March 3, 1993) and the Supreme Court of

Ohio affirmed. State v. Montgomery, 67 Ohio St.3d 1487, 621 N.E.2d 409 (Table)

(Oct. 27, 1993).

On March 7, 1993, Montgomery filed a post-conviction petition in the trial

court. The court summarily dismissed the petition without an evidentiary hearing,

State v. Montgomery, No. CR86–5450, slip op. (Ohio Ct. Common Pleas, Aug. 23,

1996).

The appellate court reversed and remanded the case to allow Montgomery

to respond to the State’s motion for summary judgment. State v. Montgomery, No.

L–96–308, slip. op. (Ohio Ct.App. Oct. 24, 1997). The trial court again dismissed the

petition on December 31, 1997. State v. Montgomery, No. CR86–5450, slip. op. (Ohio

Ct. of Common Pleas, Dec. 31, 1997), and the appellate court affirmed. State v.

Montgomery, Lucas App. No. L-98-1026, 1999 WL 55852 (Feb. 5, 1999). The Court

refused jurisdiction. State v. Montgomery, 86 Ohio St.3d 1402, 711 N.E.2d 231

(Table) (1999).

On June 13, 2000, W.T. Montgomery filed a Petition for Writ of Habeas

Corpus in the United States District Court for the Northern District of Ohio.

On

March 31, 2007, Federal District Judge Solomon Oliver granted W.T. Montgomery’s

petition based on the prosecution’s failure to turn over exculpatory evidence to W.T.

Montgomery’s trial lawyers. (The exculpatory evidence consisted of a police report

that undercut the prosecution timeline of events.) Judge Oliver ordered: “The

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Respondent shall either: (1) set aside Montgomery’s conviction for aggravated

murder and the death sentence attendant thereto; or (2) conduct another trial. The

Respondent shall retry Montgomery, or set aside his conviction and sentence for

aggravated murder within 180 days from the effective date of this Opinion.”

Montgomery v. Bagley, 482 F. Supp. 2d 919, 939 (N.D. Ohio 2007).

On appeal, the Sixth Circuit originally affirmed Judge Oliver’s judgment.

Montgomery v. Bagley, 581 F.3d 440 (6th Cir. 2009).

The State of Ohio, however,

sought and received en banc review of the original appellate panel’s decision. After

en banc review, the Sixth Circuit reversed with five circuit judges dissenting.

Montgomery v. Bobby, 654 F.3d 668 (6th Cir. 2011).

After the Sixth Circuit reversed the district court but while W.T.

Montgomery’s petition for certiorari was pending in this Court, W.T. Montgomery

obtained, for the first time, an expert report from a forensic pathologist which

corroborated the exculpatory police report and opined the time of death presented to

the jury for one of the victims was scientifically impossible.

The Sixth Circuit

denied a motion to supplement because the expert report had not first been

presented to the state courts.

During the time when his petition for writ of

certiorari was pending before the United States Supreme Court, W.T. Montgomery

tried to supplement the record with this newly-acquired expert report. In response,

the State of Ohio indicated the proper vehicle for the submission of this record was

in a motion for new trial in the state court.

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W.T. Montgomery’s prior counsel did what the State recommended. On

February 13, 2013, W.T. Montgomery’s prior counsel filed a motion for a new trial.

The trial court dismissed the motion for new trial without a hearing. State v.

Montgomery, No. CR86–5450, slip. op. (Ohio Ct. of Common Pleas, Sept. 30, 2015).

In affirming the dismissal without a hearing, the appellate court criticized the

approach taken by the trial court:

{¶ 52} In denying Montgomery's motion, the trial court did not separately

consider (1) whether he was unavoidably prevented from discovering the

evidence before the 120-day deadline expired, and (2) whether he filed his

motion within a reasonable time after discovering the evidence.

State v. Montgomery, Lucas App. No. L-15-1282, 2016-Ohio-7527 (Oct. 28, 2016) at

¶ 52.

Instead of remanding the case to the trial court, so it could do its job

correctly, the appellate court stepped into the role of the trial court. As to the first

point, the appellate court found “Montgomery arguably presented clear and

convincing evidence that he was unavoidably prevented from filing a motion for new

trial within 120 days of the verdict.” Id. at ¶ 53. The appellate court, continuing to

act as the trial court, went on to identify a mere “almost nine month” delay by W.T.

Montgomery’s attorneys in filing the motion for new trial and went on to conclude

that “Montgomery did not file his motion for leave to file a delayed motion for new

trial within a reasonable time after discovering the evidence supporting the

motion.” Id. ¶ 56.

A Memorandum in Support of Jurisdiction for discretionary appeal in the

Ohio Supreme Court was filed on December 12, 2016. The court denied jurisdiction

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in a summary order on November 1, 2017. State v. Montgomery, 2017-Ohio8371,151 Ohio St. 3d 1425, 84 N.E.3d 1063 (November 1, 2017).

Jurisdiction is appropriate under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS

United States Constitution, Fifth Amendment

“No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual service in time of War or

public danger; nor shall any person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without just compensation.

U.S. CONST. amend. V.

United States Constitution, Fourteenth Amendment

“No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV.

STATEMENT OF THE CASE

I.

PROCEDURAL BACKGROUND

In March 1986, a Lucas County grand jury charged William T. Montgomery

and Heard with the aggravated murders of Debra Ogle and Cynthia Tincher in

Case No. CR86-5450. The aggravated murder counts carried three specifications:

(1) the murders were committed for the purpose of escaping detention,

apprehension, trial or punishment; (2) the murders were part of a course of conduct

involving the purposeful killing of two or more persons; and (3) the murders were

committed while attempting to commit aggravated robbery.

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After being charged with aggravated murder, co-defendant Glover Heard

(“Heard”) made a deal with the prosecutors. In exchange for Heard’s testimony

against W.T. Montgomery, the State of Ohio agreed to drop Heard’s two counts of

aggravated murder down to one count of complicity to murder. Additionally, the

State of Ohio agreed to drop altogether an unrelated charge of gross sexual

imposition against Heard involving a five-year-old child. (Tr. 1765).

The case against W.T. Montgomery proceeded to trial on September 29, 1986.

Relying on Heard’s testimony, the State argued W.T. Montgomery shot and killed

Ogle and Tincher on March 8, 1986. The State’s theory was that Ogle was shot first

as part of a robbery and Tincher was shot second because she could place the two

men with Ogle. (Tr. 1164). The jury found W.T. Montgomery guilty of murder for

purposely causing the death of Tincher. The jury also found W.T. Montgomery

guilty of aggravated murder for purposely causing the death of Ogle with two

specifications: (1) the murder was part of a course of conduct involving the

purposeful killing of two or more person; and (2) the murder was committed while

committing or attempting to commit aggravated robbery. W.T. Montgomery was

sentenced to 15 years to life for the murder of Tincher. Following the mitigation

phase of the trial, the jury recommended and the trial judge imposed a sentence of

death for the murder of Ogle.

W.T. Montgomery appealed to this Court which affirmed his conviction and

sentence. State v. Montgomery, Lucas App. No. L-86-395, 1988 WL 84427 (Aug. 12,

1988). The Ohio Supreme Court affirmed as well. State v. Montgomery, 61 Ohio

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St.3d 410, 575 N.E.2d 410 (1991). The United States Supreme Court denied W.T.

Montgomery’s petition for writ of certiorari. Montgomery v. Ohio, 502 U.S. 1111,

112 S.Ct 1215, 117 L.Ed.2d 452 (1992).

This Court also denied Montgomery's application for delayed reconsideration

claiming ineffective assistance of appellate counsel. State v. Montgomery, Lucas

App. No. L-86-395, 1993 WL 110901 (March 3, 1993). The Ohio Supreme Court

affirmed the denial of the application. State v. Montgomery, 67 Ohio St.3d 1487,

621 N.E.2d 409 (Table) (Oct. 27, 1993).

On March 7, 1993, Montgomery filed a post-conviction petition in the trial

court. The trial court summarily dismissed the petition without an evidentiary

hearing, State v. Montgomery, No. CR86–5450, slip op. (Ohio Ct. Common Pleas,

Aug. 23, 1996).

The Court of Appeals reversed the trial court's denial of post-

conviction relief and remanded the case to allow W.T. Montgomery the opportunity

to respond to the State's motion for summary judgment. State v. Montgomery, No.

L–96–308, slip. op. (Ohio Ct.App. Oct. 24, 1997). The trial court again dismissed

the petition on December 31, 1997. State v. Montgomery, No. CR86–5450, slip. op.

(Ohio Ct. of Common Pleas, Dec. 31, 1997). This Court affirmed the dismissal of the

post-conviction petition. State v. Montgomery, Lucas App. No. L-98-1026, 1999 WL

55852 (Feb. 5, 1999). The Ohio Supreme Court dismissed Montgomery's appeal.

State v. Montgomery, 86 Ohio St.3d 1402, 711 N.E.2d 231 (Table) (1999).

On June 13, 2000, W.T. Montgomery filed a Petition for Writ of Habeas

Corpus in the United States District Court for the Northern District of Ohio. On

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March 31, 2007, Federal District Judge Solomon Oliver granted W.T. Montgomery’s

petition based on the prosecution’s failure to turn over exculpatory evidence to W.T.

Montgomery’s trial lawyers. (The exculpatory evidence consisted of a police report

that undercut the prosecution timeline of events.) Judge Oliver ordered: “The

Respondent shall either: (1) set aside Montgomery's conviction for aggravated

murder and the death sentence attendant thereto; or (2) conduct another trial. The

Respondent shall retry Montgomery, or set aside his conviction and sentence for

aggravated murder within 180 days from the effective date of this Opinion.”

Montgomery v. Bagley, 482 F. Supp. 2d 919, 939 (N.D. Ohio 2007).

On appeal, the Sixth Circuit originally affirmed Judge Oliver’s judgment.

Montgomery v. Bagley, 581 F.3d 440 (6th Cir. 2009). The State of Ohio, however,

sought and received en banc review of the original appellate panel’s decision. After

en banc review, the Sixth Circuit reversed Judge Oliver’s judgement with five

circuit judges dissenting. Montgomery v. Bobby, 654 F.3d 668 (6th Cir. 2011).

While pursuing certiorari review in the United States Supreme Court, W.T.

Montgomery obtained an expert report from a forensic pathologist which

corroborated the exculpatory police report and opined the time of death presented to

the jury for one of the victims was scientifically impossible. The Sixth Circuit,

however, denied a motion to supplement because the expert report had not first

been presented to the state courts. In opposing the motion to supplement, the State

of Ohio indicated the proper vehicle for the submission of this record was in a

motion for new trial in the state court.

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If Montgomery wishes to pursue claims based on this new report, he can

move the State Court for a new trial based on new evidence. See Ohio R. Crim. P.

33(A)(6).

W.T. Montgomery’s counsel did what the State recommended. On February

13, 2013, W.T. Montgomery filed a motion for a new trial under Ohio R. Crim. P.

33(A)(6). The trial court, however, denied the motion for new trial without holding

a hearing.

The Sixth District Court of Appeals affirmed the denial of the motion for new

trial on October 28, 2016. State v. Montgomery, 2016-Ohio-7527, appeal not

allowed, 2017-Ohio-8371, 151 Ohio St. 3d 1425, 84 N.E.3d 1063. The appellate

court found “Montgomery arguably presented clear and convincing evidence that he

was unavoidably prevented from filing a motion for new trial within 120 days of the

verdict.” Id. at ¶ 53. The appellate court, continuing to act as the trial court, went

on to identify a mere “almost nine month” delay by W.T. Montgomery’s attorneys in

filing the motion for new trial and went on to conclude that “Montgomery did not

file his motion for leave to file a delayed motion for new trial within a reasonable

time after discovering the evidence supporting the motion.” Id. ¶ 56.

A Memorandum in Support of Jurisdiction for discretionary appeal in the

Ohio Supreme Court was filed on December 12, 2016. The court denied jurisdiction

in a summary order on November 1, 2017. State v. Montgomery, 2017-Ohio-8371,

151 Ohio St. 3d 1425, 84 N.E.3d 1063.

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This decision was erroneous and violated W.T. Montgomery’s rights under

the United States Constitution.

II.

STATEMENT OF FACTS

A.

The Murders and Subsequent Investigation

On the evening of March 7, W.T. Montgomery, Heard, an associate, Bruce

Ellis, and Montgomery's then girlfriend, Lauren Kyser, went out clubbing. (Tr.

1443-7; 1189-90). The group stayed out until the club closed in the early morning of

March 8th. (Tr. 1446). W.T. Montgomery was employed, always had money on him,

and paid for the admission and beverage charges for the entire group. (Tr. 1189-90,

1146-7, 1454-55).

After leaving the bar in the early morning hours of March 8th, W.T.

Montgomery, Lauren Kyser, and Heard went to Randolph Randleman’s (W.T.

Montgomery's uncle) house, where W.T. Montgomery argued with Lauren Kyser

until Randleman broke it up. (Tr. 1463–66; Tr. 1767). After defusing the argument,

W.T. Montgomery’s pistol, clip, and holster were placed on top of the refrigerator by

Randleman. (Tr. 1466).

residence.

W.T. Montgomery and Heard then left the Randleman

As they left, both W.T. Montgomery and Heard passed through the

kitchen where the pistol was located on top of the refrigerator. (Tr. at 1488).

On March 8, 1986, between 7:00 a.m. and 7:30 a.m., Cynthia Tincher was

found dead with a gunshot wound to the head. (Tr. 1298-1300). Her body was found

in her car located near an intersection at the corner of Angola and Wenz Roads in

Toledo, Ohio. (Tr. 1298-1300). That same day, Tincher’s roommate, Debra Ogle did

not show up at her job.

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On March 11, 1986, acting on a tip from a jailhouse informant, the police

located and questioned Heard in connection with the murder of Tincher and the

disappearance of Ogle. At approximately 2:30 p.m. on the afternoon of March 11,

the police brought Heard to the station house where he provided an initial

statement, offering the name of an alibi witness (Bruce Ellis). When the police

interviewed Ellis on March 11, he gave the police the name of William Montgomery.

Around noon on March 12, 1986, while Debra Ogle remained missing, the

police located W.T. Montgomery at Randleman’s home. The police arrested W.T.

Montgomery pursuant to an outstanding forgery warrant and brought him to the

police station where he was questioned about the death of Tincher and

disappearance of Ogle. W.T. Montgomery did not testify at trial nor did he make a

formal statement to the police. According to police, W.T. Montgomery maintained

his innocence. W.T. Montgomery was formally charged with the murder of Tincher

on the evening of March 12.

There was conflicting evidence as to who directed the

police to the location where Ogle’s body was found. By 11:30 p.m. on March 12, the

police located Ogle’s body in a wooded area near Hill Avenue.

During a search of W.T. Montgomery’s residence, no property of Ogle or

Tincher was found, however during a search of Heard’s residence, the police found

Ogle's grey wallet, credit cards, and personal identification card, in Heard’s dresser

drawer. (Tr. 1348-1349, Tr. 1660-1774). The police also found Ogle's car in an alley

six houses away from Heard’s residence.

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B.

Heard’s Story

After making a deal with the prosecutors, Heard pointed his finger at W.T.

Montgomery as the killer. Prior to trial, Heard told the police four different stories

about the murders. (Tr. 1780-84). First, he denied any knowledge of the murders.

(Tr. 1780-81). Second, after being confronted with information from a jailhouse

informant, Heard admitted to bragging about seeing two girls get killed. (Tr. 1781).

Third, Heard told police he saw a known drug dealer driving Ogle’s car down an

alleyway. (Tr. 1782). Fourth, Heard said Bruce Ellis dropped him off after the night

of partying and later, an unknown black male at a car wash told Heard that two

white girls had been killed. (Tr. 1783).

At trial, Heard told the jury a fifth version. Heard testified both he and W.T.

Montgomery took a cab to Ogle and Tincher’s apartment. (Tr. 1769). Ogle agreed to

give W.T. Montgomery and Heard a ride to W.T. Montgomery’s apartment on

Airport Road. (Tr. 1770). W.T. Montgomery, sitting in the front seat, gave Ogle the

directions and eventually told her to stop on the side of the road on Hill Avenue. (Tr.

1770–72). Heard went on to testify that Ogle and W.T. Montgomery got out of her

car and walked roughly forty yards into a field or wooded area off Hill Avenue. (Tr.

1771–72). Once in that area, Ogle was in the squat position. (Tr. at 1772) Even

though there were three gunshot wounds to Debra Ogle’s body, Heard testified he

heard two gunshots and he then saw Ogle's body lying on the ground. (Id.) Heard

further claimed W.T. Montgomery walked back to Ogle's car and motioned for

Heard to get in the front passenger's seat as Montgomery got into the driver's seat.

(Id.). W.T. Montgomery drove Ogle's car back to the victims' apartment complex.

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(Tr. at 1774). W.T. Montgomery picked a pistol up off the floor of the car, exited the

vehicle, and told Heard to take the car. (Id.) Heard then left in the car and took

Ogle's wallet as he abandoned the car roughly one block from his home. (Tr. at

1774–75).

C.

The Police Report Withheld by the State.

At trial, the State argued a definite timeline of events to the jury. The State’s

timeline relied on Heard’s testimony that Ogle was murdered on March 8, 1986.

During trial, however, the State possessed information that undercut their timeline.

During the police investigation, David Ingram and several friends of Ogle reported

to the police they saw Ogle alive in the early morning hours of March 12, 1986.

(Motion to Supplement, Ex. 1). These eyewitnesses, who obviously personally knew

Ogle, were so certain of their observation they not only identified Ogle, but also

described the person driving the car in which she was riding as being a "white male

with long sideburns." (Id.) These eye witnesses went on to observe "she did not

appear distressed." (Id.) Notably, Mr. Ingram had to go out of his way to make this

police report. He had to drive to his mother's house, call the police, and then drive

back to the apartment complex to meet with the officer who completed the report.

The prosecution never turned this police report over to W.T. Montgomery’s

trial defense lawyers. (Motion for New Trial at p. 6-7). W.T. Montgomery obtained

this report only after filing a Freedom of Information Act request years later.

During the federal habeas litigation, Federal Judge Solomon Oliver of the

Northern District of Ohio, determined this police report was exculpatory and, as a

result, W.T. Montgomery was entitled to a new trial because the State of Ohio

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withheld the report. Montgomery v. Bagley, 482 F. Supp. 2d 919, 939 (N.D. Ohio

2007).

On appeal to Sixth Circuit Court of Appeals, the initial three-judge panel

agreed with Judge Oliver and ordered a new trial for W.T. Montgomery.

Montgomery v. Bagley, 581 F.3d 440 (6th Cir. 2009). The State of Ohio, however,

sought en banc review of the Sixth Circuit’s panel decision. After en banc review,

the Sixth Circuit reversed Judge Oliver’s decision to award W.T. Montgomery a new

trial. Montgomery v. Bobby, 654 F.3d 668 (6th Cir. 2011). Significantly, five federal

circuit judges (Judges Merritt, Martin, Clay, Moore, and Cole) dissented from the en

banc decision because they believed W.T. Montgomery was denied a fair trial

because exculpatory evidence was withheld from W.T. Montgomery’s trial lawyers.

Thus, even though W.T. Montgomery’s conviction and sentence have been affirmed

on appeal to this point, the State of Ohio cannot deny that, at a minimum, there is

disagreement among federal judges as to whether W.T. Montgomery should receive

a new trial based solely on the police report questioning the time of death of one of

the victims.

D.

Debra Ogle’s Body

The State’s theory at trial was that Ogle was killed first and that she was

murdered on the morning of March 8th. The State also argued to the jury that

Ogle’s body was left in a wooded area and was not found until the evening of March

12th. The officer who found Ogle's body testified she was lying face down when he

found her. (Tr. 1606). The picture of Ogle entered into evidence shows she was

moved by officers at the crime scene; she was rolled over onto her left side. (See

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Trial Exhibits, State's Exhibit 32). Ogle's autopsy also indicated "there is moderate

posterior fixed lividity and slight fixed lividity of the left anterior surface of the

body." (Autopsy of Debra Ogle, p. 1). The autopsy further indicated that there was

no sign of insect or animal activity on Ogle’s body.

E.

Expert Report

Notably, while the case was pending in the Sixth Circuit, the State of Ohio’s

response to this withheld police report was to challenge the substance of the

information contained in the police report. Even though the report, on its face,

indicated that, while Debra Ogle was missing, her friends contacted the police to

report they saw her alive on March 12, the State of Ohio claimed over twenty-five

years later that these friends must have been mistaken about seeing their friend

alive on March 12, 1986.

In response during the Sixth Circuit litigation, W.T. Montgomery sought and

obtained an expert forensic pathology report from Independent Forensic Services,

LLC (S. Eikelenboom-Schieveid, M.D., Forensic Medical Examiner, and Jon J.

Nordby, Ph.D., D-ABMDI, Final Analysis Forensics) regarding the time of death for

Ogle. (See, Report Attached to the Motion for New Trial).

This expert report

stated that it was scientifically impossible that Ogle could have been murdered on

March 8 and left in the woods for four days as the State argued at trial. The report

opined:

1.

Warming of her body should have led to decomposition, but none was

noted.

2.

The lividity found in her body shifted as she was moved. This could

not have happened if she had lain dead in the woods for four days.

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3.

There was no damage to her body from animal activity or insects and

this would also have occurred had she been dead in the woods for four

days.

The expert report noted the testimony of the pathologist who performed the

autopsy on Ms. Ogle made absolutely no mention of any decay or degradation of her

body. At that time, the weather reports indicated the temperatures in Northwest

Ohio ranged from a little below freezing to well above it. The median temperature

for those days was always above freezing. But there is no indication Ogle’s body

had been exposed to the elements for any length of time. The report went on to

opine that the State's theory was contrary to science because, within three days

there would have been substantial changes in a corpse, much less a corpse left in a

field.

There would have been changes in the color of the skin, and attacks by

wildlife would have marked the corpse. None of these observations were reported

by the pathologist which contradicts the conclusion that her body lay in the woods

for four days.

The expert report also focused on the concept of lividity.

Lividity is the

reddish purple discoloration of the skin after death. Influenced by gravity, blood

seeks the lowest levels within the vascular system. For example, when a dead body

lies on its back, the blood sinks into the back, buttocks, thighs, calves, and back of

the neck. If the body is turned over in the early postmortem interval, some or all of

the lividity will move to the altered most lower areas. When movement does not

occur after the passage of time, lividity becomes “fixed.” In general, lividity is fixed

around 12 hours after death.

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As noted by the expert report, even though Ogle was found lying face down,

the coroner described lividity on the front left side of her body and on the back.

Thus, since it is clear the body was found face down, lividity could not have fixed on

the back of Ogle's body. The only explanation is that lividity was not fixed when

she was found, and it became fixed after she was moved by officers at the scene and

then taken to the coroner's office. This had to occur within as little as six but no

more than 12 hours of her death. If she had laid face down more than 12 hours,

lividity would have fixed in that manner and could not have been changed when her

body was turned. State's Trial Exhibit 46 clearly shows that there was no lividity

on the front of Ogle's body. Therefore, the expert report explained it is scientifically

impossible for Ogle to have been killed on March 8, 1986 as the prosecution claimed.

As noted in the report, this means the victim did not die on March 8, 1986 and, in

fact, likely died around March 12, 1986. Thus, this expert report corroborated the

withheld police report and further undercut the State’s timeline.

REASONS FOR GRANTING THE WRIT

Does Ohio’s arbitrary, undefined standard for filing delayed motions

for new trial violate the Due Process and Equal Protection Clauses of

the United States Constitution?

If a procedural rule could have the effect of denying vital post-conviction

review in a capital case, Due Process requires that such be well-defined, as opposed

to a rule created and applied on an ad hoc basis. However, in this case, W.T.

Montgomery was denied relief based on an arbitrary and undefined standard.

Herein, the state court’s ad hoc invocation of a nine-month statute of limitations

prevented review of evidence that, in the recent words of the state prosecutor,

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“would have delivered a severe blow to the State’s case.” Thus, the State of Ohio’s

application of uncodified, arbitrary procedural rules will result in the execution of

an innocent man.

It is well-settled that states are under no obligation to provide mechanisms

for post-conviction relief, but if they do, the procedures they employ must comport

with the demands of the Due Process Clause, see Evitts v. Lucey, 469 U.S. 387, 393,

105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Herein, Ohio provides an opportunity for

criminal

defendants

who

were

“unavoidably

prevented”

from

discovering

exculpatory evidence at the time of trial, to file a delayed motion for new trial. The

undefined question in Ohio is what is the statute of limitations for when a

defendant must file such a motion once it comes in possession of the exculpatory

evidence.

To be clear, the exculpatory evidence possessed by W.T. Montgomery is

striking.

Previously in W.T. Montgomery’s journey through the legal system, a

single, withheld police report was significant enough that a federal district judge

and five circuit judges believed W.T. Montgomery was denied a fair trial and should

not be executed. Unfortunately, the en banc majority determined that the withheld

police report—that undercut the prosecution’s trial timeline—did not warrant a new

trial.

However, the Sixth Circuit was determining whether the withheld police

report warranted a new trial, the court did not consider a new forensic report that

confirmed the prosecution’s trial timeline was false and that W.T. Montgomery was

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denied a fair trial. In describing the impact of this expert report, the state

prosecutors recently stated:

Establishing at trial that Ogle was not killed on March 8th would have

delivered a severe blow to the State’s case because it would have directly

contradicted Heard’s testimony, it would have contradicted the prosecution’s

time line of the murders and it would have eliminated defendant’s motivation

for killing Tincher to cover up his murder of Ogle.

(Appellee brief at p. 15).

And notably, the state appellate court found that

Montgomery was “unavoidably prevented” from discovering the forensic report

sooner. This should have ended the discussion of whether there was a procedural

barrier to the mere consideration of W.T. Montgomery’s exculpatory evidence and

motion for new trial.

But with an execution looming and the fact that no court has ever looked at

this new exculpatory evidence, the state courts ultimately did not even consider this

forensic report. Instead, the state appellate court erected an uncodified arbitrary

rule to prevent this evidence – which is the difference between life and death for

W.T. Montgomery – from any review at all. The state’s actions surely violated W.T.

Montgomery’s due process rights.

But the rule foisted by the Ohio courts to deny review of W.T. Montgomery’s

new trial motion, essentially sending him to the death chamber, has never been

codified or explained by the Supreme Court of Ohio. Specifically, neither the Ohio

legislature nor the Supreme Court of Ohio has ever explained the time restriction

on filing the motion for new trial once the evidence has been discovered.

Without

the necessary guidance, Ohio appellate courts have claimed to apply, on an ad hoc

basis, a reasonableness standard indicating that a defendant must file his motion

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“within a reasonable time after discovering the evidence.” State v. Anderson, 10th

Dist. No. 12AP–133, 2012-Ohio-4733, 2012 WL 4848949, ¶ 17.

Obviously, states are entitled to devise and enforce their own procedural

rules regarding delayed motions for new trial. Surely the Constitution provides

that when a state provides a potential avenue for relief for a capital defendant,

those rule must be clear and known. See Williams v. Oklahoma City, 395 U.S. 458,

459 (1969) (citing Griffin v. Illinois, 351 U.S. 12 (1956)) (“This Court has never held

that the States are required to establish avenues of appellate review, but it is now

fundamental that, once established, these avenues must be kept free of unreasoned

distinctions” (emphasis added)); U.S. ex rel. Payton v. Rundle, 472 F.2d 36, 40 (3d

Cir. 1972) (stating that when a state provides a right to appeal, denial of that right

based on arbitrary and capricious reasoning constitutes a denial of due process);

Fullan v. Comm’r of Corr. of N.Y., 891 F.2d 1007, 1010 (2d. Cir. 1989) (stating that

once a state establishes a right of appeal, a defendant is entitled to “adequate

appellate review”). Due Process certainly requires that rules that could mean the

difference between life and death are not rules that a state can make up on the fly.

Here, the Ohio courts violated W.T. Montgomery’s due process rights when

they invoked their uncodified and undefined standard to deny W.T. Montgomery’s

motion for new trial.

Notably, the timing of when W.T. Montgomery filed the

motion for new trial demonstrates the arbitrary nature of the state court’s

procedural hurdle. When defense counsel came into possession of the expert report,

the issue of the withheld police report was being litigated in federal court. Thus, in

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order to avoid duplicative, parallel litigation, W.T. Montgomery pursued the issue

first in federal court before presenting the report to the state court as part of the

motion for new trial. This case has been pending for almost 30 years and, at worst,

habeas counsel waited six months after the end of federal habeas and certiorari

review before filing the motion for new trial in state court.

Notably, the

prosecution has never alleged, nor have they suffered any prejudice in the time

period between W.T. Montgomery obtaining the expert report and W.T.

Montgomery filing the motion for new trial in state court.

Furthermore, the new expert report obtained by W.T. Montgomery is

evidence that is reasonable necessary for W.T. Montgomery to receive a fair trial.

Currently, this Court is considering the question of whether 18 U.S.C § 3599(f) can

deny a claimant “reasonably necessary” resources to investigate and defend a postconviction claim, where the claimant’s existing evidence does not meet the ultimate

burden of proof. See Ayestas v. Davis, 137 S.Ct. 1433 (2017). While the present

case asks a different question of law, the purpose of the statute at issue in Ayestas

is relevant as to what a person threatened with capital punishment requires in

order to receive due process.

Section 3599 was enacted by Congress to grant

persons facing the death penalty with enhanced rights of representation “with due

consideration to the seriousness of the possible penalty and to the unique and

complex nature of the litigation.” 18 U.S.C. § 3599(d); see also Martel v. Clair, 565

U.S. 648, 659 (2012). Section 3599(f) further provides petitioners facing the death

penalty with more funding for investigative and expert services. These services

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“’reflec[t] a determination that quality legal representation is necessary’ in all

capital proceedings to foster ‘fundamental fairness in the imposition of the death

penalty.’” Martel, 565 U.S. at 659 (quoting McFarland v. Scott, 512 U.S. 849, 855,

859 (1994)).

These principals show that a new expert report is even more

significant to a petitioner facing execution in order to guarantee fundamental

fairness.

As a result of the application of this arbitrary procedural rule, a man will be

executed – an execution that will be shrouded with questions regarding the guilt of

W.T. Montgomery and whether the proceeding that resulted in his death sentence

was fair.

o The prosecution’s timeline is false. W.T. Montgomery was sentenced to

death based on a specific timeline presented by the prosecution at trial

through the testimony of co-defendant Glover Heard. This set of facts

claimed that Debra Ogle was murdered first on March 8 and left in a

wooded field for four days until her body was discovered on March 12.

Further, the prosecution’s timeline posited that Tincher was killed

second in order to cover the tracks of the Ogle murder.

Based on the

withheld police report and the expert forensic report, we know that the

timeline that sentenced W.T. Montgomery to death is false.

o Evidence pointed to the co-defendant who cut a deal as the murderer.

W.T. Montgomery and another individual, Heard, were both initially

charged with the aggravated murder of these women. Prior to trial,

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however, Heard made a deal with the prosecutors and agreed to testify

against W.T. Montgomery in exchange for Heard avoiding the death

penalty and pleading guilty to lesser charges. Circumstantial evidence

pointed to both W.T. Montgomery and Heard. In fact, there was some

evidence (for example, Heard had possession of Ogle’s wallet and her

car was found in an alley six houses from Heard’s residence) that

indicated Heard was the one who robbed and murdered the girls.

Heard however cut a deal with the prosecutors and testified that it was

W.T. Montgomery who shot the two girls. W.T. Montgomery never

testified, but in his statement to the police indicated that he did not

witness the murders but Heard told Montgomery that Heard shot and

killed the girls. Thus, aside from Heard’s testimony which was the

result of a plea deal; the evidence pointed equally, if not more, to

Heard as the killer.

o The prosecution did not disclose a plea deal with Michael Clark in

exchange for his testimony against W.T. Montgomery. Michael Clark

called Crime Stoppers on March 27, 1986 and said he had a phone

conversation with Glover Heard on March 8 while Clark was being

held in the local county jail.

Clark claimed that he was told by

Heard that "[Heard] saw two girls aged 19 and 20 shot." ( R. 36, Ex.

36, p: TT 1149). Clark explained in an affidavit that the prosecutor

was willing

to drop all charges

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against

him if he would testify

against Heard and Montgomery. (R. 36, Ex. 44, Ex. B) In April of 1986

all the charges against Clark were dismissed and he agreed to testify.

Subsequently Clark would not testify against or implicate W.T.

Montgomery, because he would not support the State's theory about

the killings thus he was never called as a witness. The deal was never

disclosed to the defense. This failure to disclose the deal with Clark

was yet another a violation of Brady v. Maryland, 373 U.S. 83 (1963)

and United States v. Bagley, 473 U.S. 667 (1984). See also Matthews

v. Ishee, 486 F.3d 883 (2007).

o The trial court did not excuse a biased and incompetent juror. As the

jury began to deliberate whether to impose the death penalty, one of

the jurors sent a note to the trial judge. (R. 35, Vol. VI, p: 2317) It read

as follows:

"Dear Judge Abood, After I saw Dr. Briskin [Montgomery's

mitigation psychiatric expert] on the stand, I decided I should

ask you if I'm allowed to be a juror because I am a psychiatric

patient and early in 1964 I had a dream after shock treatments.

I saw Dr. Briskin in a dream. He was fat, carried a briefcase and

a clock. I thought he looked like Satan. I never recall having

seen this man in person."

The judge interviewed the woman and discovered this juror was at

that time a psychiatric patient. Rather than incur a mistrial, the

trial judge allowed a long-term psychiatric patient – who felt that the

recollection of a two decade-old dream had relevance in her decision

– to determine whether W.T. Montgomery would live or die.

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o The jury venire was tainted by pretrial publicity. Eighty percent of the

venire was exposed to pretrial publicity coverage. Of the entire 79

member venire, 57 knew of the case from media coverage while only 10

claimed not to have been exposed. Twelve of the venire was excused for

cause before the questions were asked about media exposure so the

number might have been even higher. Thus, W.T. Montgomery was

facing a fundamentally unfair trial before it even began. Donnelly v.

DeChristoforo, 416 U.S. 637 (1974).

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CONCLUSION

The Court should grant certiorari in this case to address the due process

parameters of state laws regulating delayed motions for new trial for capital

defendants. While this case would affect a discreet set of capital defendants, the

impact would be important and significant. W.T. Montgomery requests that the

Court issue an Order staying the execution of his sentence of death pending the

disposition of this petition, grant this petition to allow full briefing and oral

argument, ultimately granting the writ, and any other relief the Court deems

appropriate.

Respectfully Submitted,

/s/ John Q. Lewis

John Q. Lewis

*Counsel of Record

Jon W. Oebker

Amanda N. Johnson

TUCKER ELLIS LLP

950 Main Avenue, Suite 1100

Cleveland, Ohio 44113

(216) 696-5325

john.lewis@tuckerellis.com

jon.oebker@tuckerellis.com

amanda.johnson@tuckerellis.com

Counsel for Petitioner

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