Petition for Writ of Certiorari — Scott Group, Petitioner v. Norm Robinson, Warden

Capital Case

Case No. _ _ __

October Term, 2017

IN THE

SUPREME COURT OF THE UNITED STATES

SCOTT GROUP, PETITIONER,

vs.

NORM ROBINSON, WARDEN, RESPONDENT.

On Petition For Writ Of Certiorari To

The United States Court Of Appeals For The Sixth Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Group v. Robinson, 158 F.Supp.3d 632 (2016)

Petition denied.

158 F.Supp.3d 632

United States District Court,

N.D. Ohio, Western Division.

Attorneys and Law Firms

Joseph E. Wilhelm, Alan C. Rossman, Vicki R.A.

Werneke, Office of the Federal *640 Public Defender,

Cleveland, OH, for Petitioner.

Scott A. Group, Petitioner,

v.

Norm Robinson, Warden, Respondent.

David M. Henry, Columbus, OH, for Respondent.

Case No. 4:13CV1636

Opinion

I

Signed January 20, 2016

MEMORANDUM OPINION AND ORDER

Synopsis

Background: Following affinnance of his conviction in

state court for aggravated murder, attempted aggravated

murder, aggravated robbery, and intimidation of a

witness, and his death sentence, 98 Ohio St.3d 248,

petitioner filed federal petition for writ of habeas corpus.

JACK ZOUHARY, UNITED STATES DISTRICT

JUDGE

INTRODUCTION

A jury convicted Petitioner Scott Group of the 1997

murder of Robert Lozier. On the jury's recolllll1endation,

the court sentenced Group to death. Group now petitions

for a writ of habeas corpus under 28 U.S.C. § 2254 (Doc.

16). Respondent Warden Norm Robinson filed a Return

of Writ (Doc. 24), and Group filed a Traverse (Doc. 34).

For the following reasons, this Court denies the Petition.

Holdings: The District Court, Jack Zouhary, J., held that:

[l] petitioner was not entitled to habeas relief on claim

that trial counsel were ineffective in failing to secure expert

to testify about DNA blood evidence found on shoes

petitioner wore when he voluntarily surrendered to police;

[2] petitioner was not entitled to habeas relief on claim that

trial counsel were ineffective in cross-examining state's

DNA expert;

[3] petitioner was not entitled to habeas relief on claim

that trial counsel were ineffective in failing to properly

investigate defense DNA expert;

FACTUAL BACKGROUND

On direct appeal from Group's conviction and sentence

in State v. Group, 98 Ohio St.3d 248, 249-53, 781 N.E.2d

980 (2002), the Ohio Supreme Court set out the following

account of Group's crimes:

[4] petitioner was not entitled to habeas relief on claim

that trial court improperly excused for cause prospective

juror who stated that she was opposed to death penalty

but would follow law;

[5] petitioner was not entitled to habeas relief on claim that

trial court erred in removing alternate juror who expressed

reservations about jury's verdict; and

[6] convictions for attempted aggravated murder and

intimidated were supported by sufficient evidence.

A-1

Robert Lozier's wife, Sandra Lozier, owned the

Downtown Bar in Youngstown, Ohio. In late

September 1996, the Loziers began buying wine and

other merchandise from Ohio Wine Imports Company.

Group, who was then employed as a deliveryman for

Ohio Wine, made weekly deliveries to the Downtown

Bar. Group never asked the Loziers to sign or initial a

copy of the invoice when they took delivery, a practice

Mrs. Lozier characterized as unusual.

On December 12, 1996, Group brought his cash

receipts to the Ohio Wine warehouse manager's office

to be counted and compared against his invoices.

Group's cash receipts were approximately $1,300 short.

Group v. Robinson, 158 F.Supp.3d 632 (2016)

Although the police were notified, Group was never

charged with stealing the missing money.

into the restroom at gunpoint and made them put their

hands against the wall.

About a week before Robert Lozier's murder, Group

went to the Downtown Bar and asked Mrs. Lozier to

show him the bar's copies of invoices from Ohio Wine.

Group stated that "he was the brother of the girl that

was missing." Mrs. Lozier interpreted this as a reference

to Charity Agee, a murder victim who had last been seen

at the Downtown Bar on New Year's Eve. The Loziers

turned around, but Group ordered them to face the

wall. Then he shot them both. He shot Robert Lozier

once in the head. He shot Sandra Lozier twice: once in

the back of the neck and once near her temple.

Less than a week before Robert Lozier's murder, two

Ohio Wine employees saw Group with a revolver at

work. They told him to take the gun out of the building,

since possessing a firearm in the warehouse was illegal.

The day before the murder, Group quit his job at Ohio

Wine. That night, two witnesses saw Group at the

Downtown Bar. One of them, Robert Genuske, who

worked at the bar, recalled that a few weeks earlier,

Group had come to the bar looking for Mr. or Mrs.

Lozier because he wanted to talk to them about an

invoice.

The next day, January 18, the Loziers arrived at the

Downtown Bar around 10:00 a.m. It was a cold day and

Robert Lozier went upstairs to see whether the pipes

had frozen. Sandra Lozier went to an office, opened

a safe, removed five bags containing approximately

$1,200 to $1,300 in cash, and set them on her desk.

As she counted the cash, Mrs. Lozier heard a knock

at the bar's front door. She went to the door, looked

through the peephole, and saw Group. Mrs. Lozier

recognized Group and let him in. She noted that he

was wearing tennis shoes, jeans, a dark blue sweatshirt,

and an undershirt. She particularly noticed that he wore

both a sweatshirt and an undershirt because Group

"never dressed that warmly."

Group told Mrs. Lozier that he wanted to check the

invoices again. Mrs. Lozier led him to the office. As

Mrs. Lozier and Group searched through the invoices,

*641 Robert Lozier came into the office, sat at the

desk, and took over counting the money. As Mrs.

Lozier later testified, "[Group] just kept going through

[the invoices], and it was like he just kept staring at

them."

Asking to use the restroom, Group left the office briefly.

When he returned, he had a gun. Group ordered the

Loziers to put their hands up and get into the restroom.

Mrs. Lozier told Group to take the money, but Group

replied, "This isn't about money." He forced the Loziers

A-2

Mrs. Lozier lost consciousness. She woke to find her

husband dead on the floor. Mrs. Lozier thought she was

dying, so she tried to write "Ohio Wine" on the floor

in her own blood as a clue for the police. At the time,

she did not know Group's name. She then crawled to

the office, where she managed to dial 911. She told the

operator that "the delivery man from Ohio Wine" had

shot and robbed her and her husband. The 911 call was

recorded; a voice timestamp on the tape established that

the call was received at 11 :05 a.m.

The first Youngstown police officer to anive at the

crime scene was Detective Sergeant Joseph Datko. Mrs.

Lozier told Datko: "The Ohio Wine man shot me. The

Ohio Wine man. Our delivery man shot us." The money

the Loziers had been counting before the shootings was

gone and so was the box of invoices that Group had

been looking through.

At trial, Group, his family, and a family friend gave

a different account of Group's whereabouts. Group

testified that, after driving his foster son to work around

7:30 a.m., he went back to his apartment, gathered some

dirty laundry, and went to his mother's house to wash

it, arriving around 9:00 or 9:30 a.m. He testified that

he did not know what time he had left his mother's

house. Group's mother, grandmother, and sister were

at Group's mother's house that morning, along with

Francisco Morales, a friend of the Group family. The

accounts given by these witnesses generally indicated

that Group had arrived at his mother's house by 9:00

a.m. and had left between 11:30 and 11:40 a.m.

According to Group, after leaving his mother's house,

he drove to the Diamond Tavern in Campbell, Ohio.

Group testified that he did not know how long he was

at the tavern but that he had left at noon.

Group v. Robinson, 158 F.Supp.3d 632 (2016)

Hispanics. The testing also revealed that Group was

excluded as the source of the blood.

There were about eight customers at the Diamond

Tavern. Group bought at least two rounds of drinks for

all of the customers. A fellow patron thanked Group

and said, "I'll see you," but Group replied, "You aren't

going to see me anymore." He had a similar exchange

with the bartender, Bonnie Donatelli.

Group then drove to the VFW post, which took

about five minutes. The manager, Maria Dutton, was a

friend of Group's. According to Dutton, Group arrived

slightly after noon and left at 12:55 p.m. While there,

Group bought a round of drinks for everyone.

Group then drove to a grocery store and telephoned his

mother. According to his mother, she received the call

between *642 1:00 and 1:30 p.m. Mrs. Group told her

son that Youngstown police were looking for him in

connection with a shooting downtown.

According to Group, he knew that he had not·

been downtown, so he surmised that his mother

misunderstood the situation and that the police were

actually looking for him because of some unpaid

parking tickets. Group told his mother that he would

go to the police station. Group's mother and sister

intercepted him en route and went to the station with

him.

When Group arrived at the police station, he spoke with

Captain Robert Kane, chief of detectives, and Detective

Sergeant Daryl Martin. Kane and Martin noticed what

looked like blood on one of Group's tennis shoes. When

questioned about it, Group told Kane that he had cut

his finger. He showed Kane the finger, and there was

a cut on it, but it "looked like a superficial old cut" to

Kane.

After brief questioning, Sergeant Martin arrested

Group. Group said, "You better check out Sam Vona,"

a former driver for Ohio Wine. But Mrs. Lozier did not

recognize Vona's picture when Martin later showed it

to her.

Group's shoe was sent to Cellmark Diagnostics for

DNA testing. An expert from Cellmark testified that

the DNA pattern of the blood on the shoe matched the

DNA pattern of a known sample of Robert Lozier's

blood. She further testified that the same DNA pattern

occurs in approximately 1 in 220,000 Caucasians, 1

in 81 million African-Americans, and 1 in 1.8 million

A-3

Lisa Modarelli, an Ohio Wine sales representative, was

a friend of Group's. According to Modarelli, Group

confided to her that police had swabbed his hands to

test for gunshot residue and that he was concerned that

the test might be positive because he had been shooting

a gun the day before the murder with "a friend." Later,

Group told Modarelli that he had been shooting with

his foster son, but Group's foster son denied that he had

gone shooting with Group.

Group contacted Bonnie Donatelli from jail and asked

her to contact Darryl Olenick for him. Olenick was a

regular at the Diamond Tavern; his hobbies were gun

collecting and target shooting. Group told Donatelli

that the police had found gunshot residue on his hands

and asked Donatelli to get Olenick to tell police that

he and Group had been target shooting together the

day before the murder. In fact, Olenick and Group did

not associate outside the tavern and had never gone

shooting together. Donatelli promised to "see what

[she] could do," but instead, she told Sergeant Martin

about Group's request.

Robert Clark was an inmate at the Mahoning County

Jail with Group. Clark mentioned to Group that he

"was familiar with the people in the [Downtown] [B]ar."

Group asked Clark whether he would "be willing to

help [Group] out." Group then made up a story for

Clark to tell police. Clark was to say that he had been

near the Downtown Bar on the morning of the murder

and had seen a man leave the bar carrying a large beer

bottle box. In return, Group promised to help Clark

"any way he could." Clark later received an anonymous

$50 contribution to his commissary account.

Adam Perry was another Mahoning County Jail inmate

at the time of Group's pretrial incarceration. Awaiting

trial on pending charges, Perry was incarcerated with

Group from December *643 1997 to May 1998. Perry

was released on bond in May 1998.

In a letter postmarked March 20, 1998, before Perry's

release, Group begged for Perry's help with his case:

"If you do bond out, let me know.

There's something you may be able

to do to help me with concerning

my case. And I'm telling you, I need

Group v. Robinson, 158 F.Supp.3d 632 (2016)

.

***Theres [sic] $300,000.00 in a wall of a certain house

***.Half goes to you to do what you like."

all the help I can get. * * * But

seriously man, and this is no joke,

I need your help with something if

you get out. Please don't leave me

hanging? We've known each other

a long time and if anyone in your

family needs help, you know I'll be

there."

The second page of State's Exhibit 37 contains Mrs.

Lozier's address and describes the house as ranch-style.

It also lists the following items: "Cheap key chain or ID

bracelet-name (Charity)" and "3 liter wine jug-mix

gas & dish soap."

Before Perry was released, Group asked him to

firebomb Mrs. Lozier's house. Group assured Perry that

Mrs. Lozier no longer lived there. However, he told

Perry that "[h]e didn't want Sandy Lozier to testify

against him," and he wanted Perry to "firebomb the

lady's house to either scare her from testifying or to lead

the police into investigating others."

In June 1998, Perry knocked on Mrs. Lozier's door.

When she answered, he asked her whether a "Maria

something lived there." Mrs. Lozier said no, and Perry

left. Perry testified that he did not want to hurt Mrs.

Lozier and so, after finding her at home, he took no

further action. Perry later told the prosecutor about

Group's plan.

Group told Perry that he had $300,000 hidden away.

He offered Perry half of it in exchange for his help.

Group also offered to dissuade a witness from testifying

in Perry's trial.

PROCEDURAL HISTORY

State-Court Proceedings

In January 1997, a Mahoning County grand jury indicted

Group on three counts. The first, for the aggravated

murder of Robert Lozier, carried with it two death- *644

penalty specifications: murder during an aggravated

robbery and purposeful attempt to kill two persons. The

remaining counts charged Group with aggravated robbery

and the attempted aggravated murder of Sandra Lozier on

January 18. Each count included a firearm specification

(Doc. 21-1 at 54--56).

Group explained to Perry how to make a firebomb by

mixing gasoline with dish soap in a bottle, with a rag in

the neck for a fuse. He instructed Perry to light the rag

and throw it through the front window and then to drop

a key chain with the name "Charity" on it on the front

lawn. "[W]hat he wanted to do," Perry explained, "was

to mislead the police into thinking that the firebomb

and the murder [sic] was all involved as far as Charity's

abduction and murder."

In a letter postmarked May 6, 1998, Group wrote to

Perry: "So I need to know on everything if that party is

still on where your sister lived. The party has to happen

and happen the way we last talked. I've got to know

bro, so I can figure some other things out in the next

few weeks." Perry understood "the party" to refer to the

planned firebombing of Mrs. Lozier's house.

Group also corresponded with Perry after Perry's

release. State's Exhibit 37, a letter from Group to Perry,

contains the following passage: "[Y]ou said you would

take care of that flat tire for me and now that your [sic]

out, I hope you do because it's a matter of life or death

(mine)[.]" In the next sentence, Mrs. Lozier's address

appears next to the name "Agee."

Group then wrote: "If you take care of the flat, please

take care of it with that two step plan we talked about.

The grand jury returned a superceding indictment in June

1998 after Perry told the prosecutor about Group's plan

to firebomb Sandra's house. It added two new counts: the

attempted aggravated murder of Sandra "on or about or

between April 1, 1998 and June 5, 1998"; and intimidating

a witness (Sandra) "on or about or between December 1,

1997 and June 5, 1998" (id. at 333-36).

Group went to trial in March 1999. The jury convicted

him on all counts and specifications (Doc. 21-2 at 295).

Following the mitigation phase, the jury recommended

Group be sentenced to death for murdering Robert (id. at

324). The trial court accepted the jury's recommendation

and imposed the following additional sentences, to run

consecutively: a ten-year prison term on the attempted

aggravated murder charge; a ten-year prison term on the

aggravated robbery charge; a ten-year prison term on the

attempted aggravated robbery charge; a five-year prison

\J\/rnks.

A-4

Group v. Robinson, 158 F.Supp.3d 632 (2016)

term on the intimidation charge; and a three-year prison

term for the merged firearm specifications (id. at 324-26).

8. It is error for the trial court to fail to instruct the

jury pursuant to the request of Appellant on law

pertinent to the case[,] all in violation of Appellant's

rights as guaranteed in the Fifth, Sixth, Eighth[,]

and Fourteenth Amendments to the United States

Constitution.

In June, with new counsel, Group timely appealed his

convictions and sentence to the Ohio Supreme Court

(Doc. 21-3 at 5). He raised sixteen propositions of law,

stated as follows:

9. It is prejudicial error for the trial court to remove [a]

juror for expressing reservations [about] the verdict.

1. Appellant's due process rights protected by

Amendment [XIV], United States Constitution[,] are

violated when the trial court dismisses for cause

jurors who express views against capital punishment.

10. The trial court commits prejudicial error in failing

to instruct the jury as requested by the Appellant

in the second phase of th[e] trial in violation of the

Appellant's Fifth, Sixth, Eighth[,] and Fourteenth

Amendment rights to the United States Constitution.

2. It is error for the trial court to overrule [Group's]

motion to prohibit the use of peremptory challenges

to exclude jurors who express concerns about capital

punishment, in violation of[Group's rights under the]

Fifth, Sixth, Eighth and Fourteenth Amendments to

the United States Constitution.

11. [Ohio Rev. Code §] 2929.04(B)(7) is

unconstitutionally vague and may be understood by

jurors as [a] reason[] for imposing the death sentence.

3. A trial court's refusal to excuse a juror who expressed

a preference for the death penalty, and the inability to

consider mitigation evidence and the corresponding

requirements placed upon a capital defendant to

excuse such a juror through the use of peremptory

challenges, amounts to a denial of a fair and impartial

jury and results in a denial of due process and equal

protection of the laws under U.S. Const. amend. XIV

and Ohio Const. art. I,[§§] 2 [,] 16.

12. The Due Process Clause is violated by a jury charge

which pennits a criminal conviction on proof less

than beyond a reasonable doubt.

4. The trial court's granting of the State's motion to

excuse prospective Juror Number 389 for cause where

the juror appears to be impartial and agrees to follow

the judge's instructions, constituted a denial of a fair

and impartial jury[,] which resulted in the denial of

due process and the equal protection of the laws of

the U.S. Const.[] amend. IV [and] the Ohio Const[.]

art. I, [§§] 2[,] 16.

5. The conviction of the Appellant for the charge of

aggravated murder in this case is against the manifest

weight of the evidence. The evidence was insufficient

as a matter of law to support Appellant's conviction

for aggravated murder and should be reversed.

6. The Appellant's right to effective assistance of counsel

[was] prejudiced by counsel's deficient performance.

*645 7. It is an abuse of discretion for the trial court

to deny Appellant's Rule 29 motion for acquittal

regarding the attempted aggravated murder charge.

A-5

13. It is prejudicial error to sentence Defendant to the

death penalty, when, based upon the law and the

record of this case, the sentence of death herein is

inappropriate and is disproportionate to the penalty

imposed in similar cases, in violation of Defendant's

rights as guaranteed to him by the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the U. S.

Constitution and Sections 5, 9, 10, and 16 of Article

One of the Ohio Constitution.

14. [Ohio Rev. Code §§] 2903.01, 2929.02, 2929.021,

2929.022, 2929.023, 2929.03, 2929.04 and 2929.05[,]

as read together and as applied in this case[,]

violate the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution and

Sections 2, 9, 10, and 16 of Article I of the Ohio

Constitution.

15. The proportionality review that this Court must

conduct in the present capital case pursuant to Ohio

Revised Code Section 2929.05 is fatally flawed and

therefore the present death sentence must be vacated

pursuant to the Fifth, Eighth, and Fourteenth

Amendments to the United States Constitution,

Sections 5 and 10, Article I of the Ohio Constitution

and Ohio Revised Code Section 2929.05, in violation

Group v. Robinson, 158 F.Supp.3d 632 (2016)

of [Group's] rights as guaranteed to him by the Fifth,

Eighth, and Fourteenth Amendments to the U. S.

Constitution and Sections 5, 9, 10[,] and 16 of Article

One of the Ohio Constitution.

2. [Defense counsel was] totally unprepared for a

motion hearing [on a motion for a gag order] ....

[C]ounsel were ineffective for failing to prepare

adequately for hearings.

16. It is error for a trial court to impose a death

sentence when the death penalty law as currently

applied in Ohio violates [Ohio Rev. Code §]

2929.05(A) by requiring appellate courts and the

[Ohio] Supreme Court, in conducting their [OHIO

REV. CODE§] 2929.04(A) review of "similar cases"

for proportionality, to examine only those cases in

which a death sentence was imposed and ignore

those in which a sentence of life with a parole

eligibility after twenty full years or life with a parole

eligibility after thirty full years was imposed. The

current method also violates the rights to a fair trial

and due process, results in cruel and unusual '~646

punishment, and implicates others of Appellant's

protected rights as well, all as set forth in the Fifth,

Sixth, Eighth, Ninth[,] and Fourteenth Amendments

to the United States Constitution and in Sections

1, 2, 5, 9, 10, 16[,] and 20, Article I of the Ohio

Constitution.

3. Defense counsel was ineffective under the Sixth

Amendment of the United States Constitution for

misleading the jury on the material issue of the DNA

identity of the blood found on Scott Group's shoe ....

The failure of Petitioner's trial counsel to obtain

a defense DNA expert, to have promised that one

would testify and then not produce one, and to fail

to cross-examine the State's expert effectively, fell

below objective standards of performance for counsel

in capital cases.

4. Defense [counsel] prejudicially failed to obtain an

expert on the issue of the physical impairment of

Scott Group's right hand.

(Doc. 21-3 at 45---48). The Ohio Supreme Court affirmed

Group's convictions and sentence in December 2002.

Group, 98 Ohio St.3d at 275, 781N.E.2d980.

5. Petitioner's convictions, death sentence, and. other

sentences are void or voidable because the trial court

used an anonymous juror system.

Group petitioned for post-conviction review while his

direct appeals were pending. In June 2003, Group

amended his post-conviction petition to assert the

following claims:

1. [Group] did not receive effective assistance of counsel

during the trial phase of his capital trial. ... [Counsel

was] unprepared for a hearing on counsel's own

motion [to disqualify the Prosecutor's Office.] ...

[O]ne of his lawyers, Jerry McHenry, repeatedly

dosed off. ... [T]he defense lawyers failed to prepare

Petitioner to testify .... [D]efense lawyers failed to call

a witness from Ohio BCI, who [could] have testified

about negative test results, including a negative

gunshot residue test. ... [D]efense lawyers told him

that they did not want to litigate vigorously pretrial

motions for fear of angering the judge and the

prosecutors .... [O]ne of Petitioner's lawyers, Andrew

Love, kept calling Petitioner Fred, and he called other

people by the wrong name as well.

A-6

6. [T]rial counsel failed to prepare their client to

testify and thereby opened the door to devastating

impeachment of Petitioner when he testified, "I never

robbed anybody in my life."

7. [D]efense counsel created a situation permitting

further devastating impeachment of Petitioner. ...

Defense counsel opened the door to the use of [ ]

letters [Group had written and sent from jail] with

Petitioner's testimony.

8. Petitioner did not receive effective assistance

of counsel during the trial phase of his

Group v. Robinson, 158 F.Supp.3d 632 (2016)

capital trial [because] [m]itigation was incongruent,

inconsistent[,] and incomplete.

denied appointment of an expert (Doc. 21-8 at 20--55).

Group timely appealed to the Mahoning County Court of

Appeals (Doc. 21-9 at 10). He raised two assignments of

error:

*647 9. Counsel's failure to voir dire the jury effectively

1. The trial court erred and abused its discretion

by granting summary judgment to the State, and

dismissing Appellant's petition for post-conviction

relief.

regarding mitigating factors and counsel's failure to

rehabilitate jurors violated Petitioner's rights under

the United States Constitution's Fifth, Sixth, Eighth,

and Fourteenth Amendments and Petitioner was

prejudiced.

10. Counsel's failure to file a motion for a change of

venue and to voir dire the jury effectively regarding

pretrial publicity violated Petitioner's rights under

U.S. Const.[] amend[s]. VI and XIV and Ohio Const.

[]art. I,§§ 1, 2, 5, 10, and 16.

2. The trial court erred and abused its discretion

in denying the petition without conducting an

evidentiary hearing or permitting discovery, thus

depriving Appellant of liberties secured by U.S.

Const. amend. XIV and Ohio Const. art. I,§§ 1, 2, 10,

and 16, including meaningful access to the courts of

this State.

(id. at 110). The appellate court affirmed (id. at 259).

Group then appealed to the Ohio Supreme Court, raising

one proposition of law:

11. Petitioner's trial counsel ... failed to cross-examine

Mrs. Lozier effectively, denying Petitioner the twin

liberties protected by the Sixth and Fourteenth

Amendments of confrontation and the effective

assistance of counsel.

12. Petitioner was denied compulsory process, due

process oflaw, and the effective assistance of counsel

... [w]hen his trial counsel failed to subpoena and call

to the stand scientific witnesses from the Ohio Bureau

of Criminal Identification & Investigation.

13. [P]etitioner's trial counsel did nothing to investigate

the possibility of Ferguson as a suspect or present

him to the jury as a source of reasonable doubt. ...

Further, Petitioner's trial counsel did not prepare

Petitioner's witnesses to testify according to the

norms employed by trial lawyers.

(Doc. 21-6 at 59, 74, 76-77, 80-84, 88, 90, 93, 95, 98, 100,

105-06, 111 (citations omitted)).

The State moved for summary judgment (Doc. 21-7

at 1-44). Group opposed the motion and alternatively

moved for the appointment of an expert (id. at 116-48).

The court granted the summary-judgment motion and

To deny a post-conviction capital

defendant who makes a colorable

showing that discovery will aid

in presenting constitutional errors

is a denial of due process and

meaningful access to the courts of

this State.

(Doc. 21-10 at 4, 8). The court declined to accept

jurisdiction (id. at 222) .

Federal Habeas Proceedings

In July 2013, Group filed a notice of intent to initiate this

habeas action and moved for appointment of counsel and

leave to proceed in forma pauperis (Docs. 1-3). This Court

granted both Motions and *648 appointed the Capital

Habeas Unit of the Federal Public Defender's Office to

represent him (Docs. 4-5).

Group moved for discovery in January 2015. The State

opposed, and Group replied (Docs. 40, 41 & 44). This

Court denied the Motion with prejudice as to certain

discovery requests and without prejudice as to others

(Doc. 49).

Group also moved for leave to amend his Petition and add

another claim for relief, which the State also opposed, and

to which Group replied (Docs. 45-4 7). This Court granted

A-7

Group v. Robinson, 158 F.Supp.3d 632 (2016)

the Motion (Doc. 50). Some three months later, the State

moved for leave to respond to the additional claim (Doc.

51), but this Court denied the Motion as untimely (Doc.

53).

7. Petitioner Scott Group was convicted on evidence

insufficient to sustain essential elements of attempted

aggravated murder, and intimidation in violation of

Petitioner's rights as guaranteed by the Fifth, Sixth,

Eighth[,] and Fourteenth Amendments.

8. Trial counsel rendered ineffective assistance in the

culpability phase because trial counsel failed to

conduct a proper investigation to determine the

content of the defense DNA expert's testimony and,

consequently, trial counsel falsely promised the jury

it would hear important testimony from a defense

DNA expert.

PETITIONER'S GROUNDS FOR RELIEF

Group asserts eight grounds for relief. They are:

1. Trial counsel rendered ineffective assistance m

the culpability phase because counsel's crossexamination of the State's key witness, Sandra Lozier,

was inadequate.

(Doc. 16 at 34, 40, 50, 63, 75, 80, 83; Doc. 45-1 at 1

(citations omitted)).

2. Trial counsel rendered ineffective assistance in the

culpability phase as trial counsel failed to present

a cogent defense to create reasonable doubt that

Petitioner was the offender because trial counsel

failed to prepare Petitioner's alibi witnesses or present

evidence of another suspect.

STANDARD OF REVIEW

3. Trial counsel rendered ineffective assistance in the

culpability phase because counsel failed to utilize

an expert to rebut the State's DNA evidence and

trial counsel's cross-examination of the State's DNA

expert was ineffectual.

4. Trial counsel rendered ineffective assistance m

the culpability phase because counsel failed to

present objective evidence demonstrating a serious

physical impairment to Petitioner's hands making

it improbable that Petitioner could fire a gun, and

trial counsel failed to present evidence to show that

microscopic tests for gunshot residue on Petitioner's

hands were negative.

5. The trial court's dismissal for cause of a properly

qualified non-biased juror from the panel deprived

Petitioner Scott Group of his Fifth, Sixth, Eighth

and Fourteenth Amendment rights under the United

States Constitution.

[1] The Antiterrorism and Effective Death Penalty Act

of 1996 ("AEDPA") governs Group's Petition. *649

Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138

L.Ed.2d 481 (1997). AEDPA, which amended 28 U.S.C.

§ 2254, was enacted "to reduce delays in the execution of

state and federal criminal sentences, particularly in capital

cases, and 'to further the principles of comity, finality, and

federalism."' Woodford v. Garceau, 538 U.S. 202, 206, 123

S.Ct. 1398, 155 L.Ed.2d 363 (2003) (quoting (Michael)

Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146

L.Ed.2d 435 (2000)) (citations omitted).

AEDPA Deference

Section 2254(d) forbids a federal court from granting

habeas relief with respect to a "claim that was adjudicated

on the merits in State court proceedings" unless the statecourt decision either:

1. resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of

the United States; or

6. The trial court's dismissal for cause of a properly

qualified non-biased alternate juror who expressed

reservations about the verdict deprived Petitioner

Scott Group of his Fifth, Sixth, Eighth[,] and

Fourteenth Amendment rights under the United

States Constitution.

2. resulted in a decision that was based on an

unreasonable detennination of the facts in light of the

evidence presented in the State court proceeding.

[2]

[3] Habeas courts review the "last explained statecourt judgment" on the federal claim at issue. Ylst v.

A-8

Group v. Robinson, 158 F.Supp.3d 632 (2016)

Nunnemaker, 501 U.S. 797, 805, 111 S.Ct. 2590, 115

L.Ed.2d 706 (1991) (emphasis omitted). "When a federal

claim has been presented to a state court and the state

court has denied relief, it may be presumed that the state

court adjudicated the claim on the merits in the absence

of any indication or state-law procedural principles to the

contrary." Harrington v. Richter, 562 U.S. 86, 99, 131 S.Ct.

770, 178 L.Ed.2d 624 (2011).

bears the burden of rebutting the state court's factual

findings "by clear and convincing evidence." Burt v.

Titloiv, -U.S. - - , 134 S.Ct. 10, 15, 187 L.Ed.2d

348 (2013); see also 28 U.S.C. § 2254(e)(l). "[I]t is not

enough for the petitioner to show some unreasonable

determination of fact; rather, the petitioner must show

that the resulting state court decision was 'based on' that

unreasonable determination." Rice v. White, 660 F.3d 242,

250 (6th Cir.2011). "[A] state-court factual determination

[4]

[5]

[6]

[7] [8] A state-court decision is contrariy not unreasonable merely because the federal habeas

to "clearly established Federal law" under Section 2254(d)

court would have reached a different conclusion in the first

(1) only "ifthe state court arrives at a conclusion opposite

instance." Woodv. Allen, 558 U.S. 290, 301, 130 S.Ct. 841,

to that reached by [the Supreme] Court on a question

175 L.Ed.2d 738 (2010).

of law or if the state court decides a case differently

than [the Supreme] Court has on a set of materially

[13] Section 2254(d) "reflects the view that habeas corpus

indistinguishable facts." (Terry) Williams v. Taylor, 529

is a guard against extreme malfunctions in the state

U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

criminal justice systems" and does not function as a

"[R]eview under [Section] 2254(d)(l) is limited to the

"substitute for ordinary error correction through appeal."

record that was before the state court that adjudicated

Harrington, 562 U.S. at 102-'--03, 131 S.Ct. 770 (internal

the claim on the merits." Cullen v. Pinholster, 563 U.S.

quotation marks omitted). Thus, Petitioner "must show

170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). "Clearly

that the state court's ruling ... was so lacking in

established Federal law" for purposes of the provision

justification that there was an error well understood and

"is the governing legal principle or principles set forth

comprehended in existing law beyond any possibility for

by the Supreme Court at the time the state court renders

fairminded disagreement." Id. at 103, 131 S.Ct. 770.

its decision." Lockyer v. Andrade, 538 U.S. 63, 71-72,

123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); see also White v.

[14]

[15]

[17] But AEDPA "stops short of

[16]

Woodall,-U.S.--, 134S.Ct. 1697, 1702, 188L.Ed.2d

imposing a complete bar on federal court relitigation of

698 (2014) (explaining that "only the holdings, as opposed

claims already rejected in state proceedings." Id. at 102,

to the dicta, of [Supreme] Court[ ] decisions" qualify as

131 S.Ct. 770. "Even in the context of federal habeas,

"clearly established Federal law" for purposes of Section

deference does not imply abandonment or abdication of

2254(d) (citations and internal quotation marks omitted)).

judicial review. Deference does not by definition preclude

"And an 'unreasonable application of those holdings must

relief." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct.

be 'objectively unreasonable', not merely wrong; even

1029, 154 L.Ed.2d 931 (2003). Moreover, the deference

'clear error' will not suffice." Woodall, 134 S.Ct. at 1702

AEDPA demands is not required if Section 2254(d) does

(quoting Lockyer, 538 U.S. at 75-76, 123 S.Ct. 1166).

not apply to a claim. Federal habeas courts may review de

"The critical point is that relief is available under [Section]

novo an exhausted federal claim that was not adjudicated

2254(d)(l)'s unreasonable-application clause if, and only

on the merits in state court. See Hill v. Mitchell, 400 F.3d

if, it is so obvious that a clearly established rule applies

308, 313 (6th Cir.2005).

to a given set of facts that there could be no 'fairminded

disagreement' on the question." Id. at 1706-07 (quoting

Procedural Default

Harrington, 562 U.S. at 102, 131 S.Ct. 770).

[18]

[19]

[20]

[21] A federal court may not consider

an"

contentions

of

general

law which are not resolved on the

[9]

[10]

[11]

[12] A state-court decision is

merits in the state proceeding due to petitioner's failure

"unreasonable determination of the facts" under Section

to raise them as required by state procedure." Wainwright

2254(d)(2) only if the court made a "clear factual error."

v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d

Wiggins v. Smith, 539 U.S. 510, 528-29, 123 S.Ct. 2527,

594 (1977). If a "state prisoner has defaulted his federal

156 L.Ed.2d 471 (2003). This Court's *650 review of

claims

in state court pursuant to an independent and

state-court factual findings is limited to "the evidence

adequate

state procedural rule, federal habeas review of

presented in the State court proceeding," and Petitioner

the claims is barred unless the prisoner can demonstrate

A-9

Group v. Robinson, 158 F.Supp.3d 632 (2016)

cause for the default and actual prejudice as a result of

the alleged violation of federal law, or demonstrate that

failure to consider the claims will result in a fundamental

miscarriage of justice." Coleman v. Thompson, 501 U.S.

722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). A

procedural bar is "independent" when a state court applies

the rule without relying on federal law, id. at 732-33,

111 S.Ct. 2546, and "adequate" when the procedural rule

is "firmly established and regularly followed" by state

courts, Beard v. Kindler, 558 U.S. 53, 60-61, 130 S.Ct.

612, 175 L.Ed.2d 417 (2009) (internal quotation marks

omitted). If a petitioner fails to fairly present a federal

constitutional claim to the state courts and no longer

can present that claim to a state court, the claim is

procedurally defaulted. O'Sullivan v. Boerckel, 526 U.S.

838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

[22] This Court employs a four-step analysis to assess

procedural default:

First, the federal court must

determine whether there is a state

procedural rule *651 that is

applicable to the petitioner's claim

and whether the petitioner failed

to comply with that rule. Second,

the federal court must determine

whether the state courts actually

enforced the state procedural

sanction - that is, whether the

state courts actually based their

decisions on the procedural rule.

Third, the federal court must decide

whether the state procedural rule is

an adequate and independent state

ground on which the state can rely to

foreclose federal review of a federal

constitutional claim .... Fourth, if

the federal court answers the first

three questions in the affirmative,

it would not review the petitioner's

procedurally defaulted claim unless

the petitioner can show cause for

not following the procedural rule

and that failure to review the claim

would result in prejudice or a

miscarriage of justice.

the default and consider the claim on the merits if the

petitioner demonstrates either (1) cause for the petitioner

not to follow the procedural rule and prejudice from the

alleged constitutional error, or (2) that a fundamental

miscarriage of justice would result from denying federal

habeas review. Coleman, 501 U.S. at 750, 111 S.Ct. 2546.

[23]

[24]

[25) A petitioner can establish cause by

"show[ing] that some objective factor external to the

defense impeded counsel's efforts to comply with the

State's procedural rule." Murray v. Carrier, 477 U.S. 478,

488 (1986). Objective impediments include an unavailable

claim or interference by state officials that made

compliance with state procedural rules impracticable. Id.

If the procedural default can be attributed to counsel's

constitutionally inadequate representation, that failing

can serve as cause so long as the ineffective-assistance-ofcounsel claim was presented to the state courts. Id at 48889. If the ineffective-assistance claim was not presented

to the state courts in the manner that state law requires,

that claim is itself procedurally defaulted and can only

be used as cause for the underlying defaulted claim if the

petitioner demonstrates cause and prejudice with respect

to the ineffective-assistance claim, Edwards v. Carpenter,

529 U.S. 446, 452-53, 120 S.Ct. 1587, 146 L.Ed.2d 518

(2000).

[26]

[27] To establish prejudice, a petitioner must

demonstrate that the constitutional error "worked to his

actual and substantial disadvantage, infecting his entire

trial with error of constitutional dimensions." United

States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71

L.Ed.2d 816 (1982). "When a petitioner fails to establish

cause to excuse a procedural default, a court does not need

to address the issue of prejudice." Simpson v. Jones, 238

F.3d 399, 409 (6th Cir.2000).

Williams v. Coyle, 260 F.3d 684, 693 (6th Cir.2001). If a

claim is procedurally defaulted, a federal court may excuse

[28] [29] A narrow exception to the cause-and-prejudice

requirement exists where a constitutional violation

"probably resulted" in the conviction of a person who

is "actually innocent" of the crime for which he was

convicted in state court. Dretke v. Haley, 541 U.S. 386,

392, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004) (citing

Murray, 477 U.S. at 496). The petitioner must show

"by clear and convincing evidence that, but for a

constitutional error, no reasonable juror would have

found the petitioner eligible for the death penalty under

the applicable state law." Sawyer v. Whitley, 505 U.S. 333,

336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

A-10

Group v. Robinson, 158 F.Supp.3d 632 (2016)

"It is not enough to show that the errors had some

conceivable effect on the outcome of the proceeding."

Id. at 693, 104 S.Ct. 2052. Counsel's errors must be

"so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable." Id. at 687, 104 S.Ct.

2052. Because ineffective-assistance-of-counsel claims

are mixed questions of law and fact, id. at 698, 104 S.Ct.

2052, a habeas court reviews such claims under AEDPA's

"unreasonable application" prong, see, e.g., Mitchell v.

Mason, 325 F.3d 732, 737-38 (6th Cir.2003).

DISCUSSION

First, Second, Third, Fourth,

and Eighth Grounds for Relief

/11ejfective Assistance of T1•ial Cou11sel

Group claims trial counsel's performance denied him

his Sixth Amendment right to *652 effective assistance

of counsel. Specifically, he complains counsel failed

to adequately: (1) cross-examine Sandra; (2) prepare

Group's alibi witnesses and develop his defense concerning

an alternate suspect; (3) investigate and present DNA

evidence and related expert testimony; and (4) present

evidence of Group's impaired hand and inform the jury

that tests performed to detect gunshot residue on Group's

hands were negative (Doc. 16 at 34, 40, 48, 50, 63-64; Doc.

45-1at1).

·Ineffective Assistance of Counsel: Standard

[30] The Sixth Amendment right to the effective

assistance of counsel at trial "is a bedrock principle in our

justice system." Martinez v. Ryan, -U.S.--, 132 S.Ct.

1309, 1317, 182L.Ed.2d272(2012). The Court announced

a two-part test for claims of ineffective assistance of

counsel in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984).

[31] First, a petitioner must show counsel's errors were

so egregious that "counsel was not functioning as

the 'counsel' guaranteed the defendant by the Sixth

Amendment." Id. at 687, 104 S.Ct. 2052. Counsel's

performance must fall "below an objective standard of

reasonableness." Id. at 688, 104 S.Ct. 2052. A reviewing

court must "reconstruct the circumstances of counsel's

challenged conduct" and "evaluate the conduct from

counsel's perspective at the time." Id. at 689, 104 S.Ct.

2052.

[32] Second, a petitioner must show he was prejudiced

by counsel's errors with "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 undermine

confidence in the outcome." Id. at 694, 104 S.Ct. 2052.

[33]

[34]

[35] Prevailing on an ineffective-assistanceof-counsel claim through habeas review is no easy task.

"Judicial scrutiny of counsel's performance must be highly

deferential" and "every effort [must] be made to eliminate

the distorting effects of hindsight." Strickland, 466 U.S.

at 689, 104 S.Ct. 2052. "Strickland specifically commands

that a court 'must indulge [the] strong presumption' that

counsel 'made all significant decisions in the exercise

of reasonable professional judgment'," recognizing "the

constitutionally protected independence of counsel and ...

the wide latitude counsel must have in making tactical

decisions." Cullen, 563 U.S. at 195, 131 S.Ct. 1388

(quoting Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052).

And because the standards imposed by Strickland and

Section 2254(d) are both "highly deferential," applying

both standards together results in "doubly" deferential

review. Harrington, 562 U.S. at 105, 131 S.Ct. 770. The

question for a habeas court "is simply whether there is 'any

reasonable argument' " that counsel's performance was

professionally reasonable. Davis v. Carpenter, 798 F.3d

468, 474 (6th Cir.2015) (quoting Harrington, 562 U.S. at

105, 131 S.Ct. 770).

Procedurally Defaulted Claims (First and Second Grounds

for Relief)

Group claims in his First Ground for Relief that

trial counsel provided ineffective *653 assistance by

not adequately cross-examining Sandra. Specifically,

he complains trial counsel failed to: (1) drive home

inconsistencies between Sandra's description of her

shooter and Group's physical appearance; (2) use medical

records to impeach Sandra's statement that she lost

consciousness after the shooting; and (3) emphasize that

she could not recall Group's name, even though Group's

name was visible on the Ohio Wine uniform he wore

during deliveries to the bar (see Doc. 16 at 34-39). Group

claims in his Second Ground for Relief that trial counsel

were ineffective for failing to present a "cogent" alibi

A-11

Group v. Robinson, 158 F.Supp.3d 632 (2016)

defense or offer evidence pointing to a different suspect,

Brian Ferguson (see Doc. 34 at 33).

Group at that time had no objection to using Lifecodes;

they were satisfied that the two testing facilities were

independent of each other.

The state appellate court, the last state court to provide

a reasoned judgment on these claims, found them barred

by res judicata. See State v. Group, 201 l-Ohio-6422, at

iii! 126, 134-35 (Ct.App.). This Court analyzed the effect

of those rulings at length in the context of Group's

motion for discovery, and concluded that these claims are

procedurally defaulted (see Doc. 49 at 8-16). This Court

also found Group has not shown good cause to excuse the

default because the claims lack merit. This Court adopts

and incorporates that analysis here.

At trial, Group had counsel different from those

representing him on appeal. Trial counsel represented

to the court that Dr. Baird, the Lifecodes expert, had

read the Cellmark report and that his "cursory * * *

evaluation" was that contamination may have taken

place so as to render DNA testing "useless." (Baird did

not test the blood sample because Cellmark's testing

had used it up.) According to defense counsel, Baird

subsequently refused to testify, because "they are both

in the same company, and * * * he did not want to

challenge a coworker." Counsel tried to enlist Roche

*654 Laboratories, but Roche refused to get involved

in the case at such a late date.

DNA Evidence and Expert Testimony (Third and Eighth

Grounds for Relief)

Group asserts in his Third and Eighth Grounds for

Relief that trial counsel were constitutionally deficient

in their handling of DNA evidence and related expert

testimony. He specifically complains they failed to: (1)

present an expert to testify regarding DNA blood evidence

found on the shoes Group wore when he voluntarily

surrendered to police; (2) adequately cross-examine the

State's DNA expert; and (3) sufficiently investigate their

chosen DNA expert's availability and willingness to

testify, while promising the jury it would hear testimony

from a DNA expert (Doc. 34 at 51; Doc. 45-1 at 1). The

Ohio Supreme Court adjudicated the first two claims on

the merits, preserving them for habeas review. The Ohio

court of appeals found the third barred by res judicata, but

alternatively ruled on the merits.

Defense DNA Expert. Group faults trial counsel for failing

to secure an expert to testify about DNA blood evidence

found on his shoes (Doc. 34 at 60-64).

In rejecting this claim, the Ohio Supreme Court reasoned:

Group contends that defense counsel never had

independent tests performed on the DNA evidence.

The record indicates that Cellmark Diagnostics

performed DNA testing for the prosecution in this

case. The defense was allotted funds for its own

DNA testing and submitted DNA samples to Lifecodes

Corporation. Before trial, one of the prosecutors

advised the trial court that, due to an acquisition,

Celhnark and Lifecodes were now part of the same

corporation. However, the defense counsel representing

The record does not show either deficient performance

or prejudice. Group's original counsel apparently

satisfied themselves that Cellmark and Lifecodes were

independent. That situation did not change until later,

when the DNA expert from Lifecodes backed out.

When that happened, defense counsel tried to line up

a replacement. Nothing in the record indicates that

Group's counsel were at fault.

As to prejudice, no one can say how a DNA expert from

a different laboratory would have testified. Moreover,

defense counsel cross-examined the Cellmark expert on

the subject of contamination.

Group, 98 Ohio St.3d at 269-70, 781N.E.2d980.

Group claims the court incorrectly excused counsel for

failing to obtain a DNA expert because Dr. Baird refused

to testify at the last minute and a replacement could not be

found. He maintains that counsel's deficient performance

lies not in the last-minute predicament, but in how they

got into that situation in the first place: by not recognizing

the conflict of interest between the State and defense

experts' laboratories and consulting with Dr. Baird in time

to either confirm his participation or retain a new expert

(Doc. 34 at 52, 60-63). Group stresses that counsel knew

of the conflict and Group himself had "warned" them Dr.

Baird could not testify (id. at 62).

The State responds that the Ohio Supreme Court's

findings were fully supported by the record (Doc. 24 at 43).

A-12

Group v. Robinson, 158 F.Supp.3d 632 (2016)

This Court agrees. At a hearing held nine months before

the trial began, the prosecutor explained to the trial court:

[T]he company that is performing

the defense analysis [Lifecodes] has

been acquired by the company

that is to perform the State's

analysis [Cellmark]. They're two

independent companies but it is

my understanding that they would

have the same shareholders. It is

two operations. One doesn't have

anything to do with the other except

for our company ... acquired the

defense's company ....

(Doc. 22-1 at 48-49). Group's counsel added that the

companies were located in different states (id. at 49). The

parties then both represented to the court that despite the

two companies' new relationship, there was no conflict of

interest. Group's counsel stated:

It was disclosed to me immediately

on the telephone .... [I]t is our belief

that they are separate. It is also

our belief that a scientific test is

a scientific test and the only thing

we're going to check on is the

protocols they use, each lab, to do

the test. We don't feel that there is a

problem.

(Id. at 49-50). The prosecutor agreed:

I don't feel there is a problem either. I wanted it to be

a matter of record that we all agree on that, that there

is no potential conflict of interest that I see from my

standpoint and likewise from the defense's standpoint.

[W]e all acknowledged the situation as it exists and we

understand it is two separate facilities, nonetheless, two

separate testing procedures and there is no conflict with

regard to the tests that are being performed by their

company.

(Id. at 50-51). The trial court was satisfied the issue had

been resolved (id. at 51).

[36] Group misstates the record in claiming trial counsel

did not adequately "engage" with Dr. Baird before

trial (Doc. 34 at 61-63). At a hearing held prior to

the scheduled testimony of the State's DNA expert,

Group's counsel explained to the court that they had

"done everything *655 [they] could possibly do to get

a DNA expert in here," but "were essentially hung

out to dry" (Doc. 22-5 at 652). When trial counsel

first began to work on Group's case, Group's former

counsel gave them the Celhnark and Lifecodes reports

and explained the connection between the two companies.

Trial counsel then contacted Dr. Baird, who offered his

initial impression of the Cellmark report and agreed to

testify on Group's behalf about possible contamination

of the blood evidence. Counsel sent Dr. Baird a contract

guaranteeing his fee and agreed to pay for his travel

expenses. After that, counsel claimed Dr. Baird "became

almost impossible to reach." Trial had already begun by

the time Dr. Baird informed counsel he was no longer

willing to testify for Group because "he did not want

to challenge a coworker, co-DNA expert." Counsel then

tried to find another expert, but could not (id. at 549-53).

On these facts, this Court cannot conclude the Ohio

Supreme Court's decision was unreasonable. Dr. Baird's

personal refusal to testify for Group because he did not

want to challenge a coworker does not prove a conflict

of interest between Cellmark and Lifecodes. And, since

counsel had no reason to believe Dr. Baird would back out

at the last minute when the parties had previously agreed

there was no conflict and Dr. Baird had agreed to testify,

there was nothing more counsel should have done. "The

Supreme Court has never reached the specific question[]"

of "how hard" an attorney must try to secure an expert.

Davis, 798 F.3d at 473. Perhaps Group wishes counsel

had done more to ensure that Baird or another expert was

available and willing to testify at trial. "In the absence

of any guidance from the Supreme Court as to how hard

an attorney must work to find an expert, however, a

fairminded jurist could conclude that [counsel]'s efforts

fell in the permissible zone between 'best practices' and

outright incompetence." Id. at 474 (citing Harrington, 562

U.S. at 102, 131 S.Ct. 770).

The Ohio Supreme Court also reasonably determined that

Group was not prejudiced by his trial counsel's failure

to secure a DNA expert. Group argues the state court

did not adjudicate this issue on the merits because Ohio

law dictates that "the Ohio Supreme Court does not

A-13

Group v. Robinson, 158 F.Supp.3d 632 (2016)

adjudicate claims ifthe defendant must resort to evidence

outside the appellate record to show prejudice," and

extra-record evidence would have refuted the state court's

observation that "no one can say how a DNA expert from

a different laboratory would have testified" (Doc. 34 at

63-64). He thus urges this Court to review the decision

de novo. Regardless of whether Group accurately states

Ohio law on this point, as discussed below, this Court

agrees with the Ohio court's second basis for finding no

prejudice: Group's counsel adequately cross-examined the

State's expert on the contamination issue. The state court's

application of Strickland to this ineffective-assistance

claim, therefore, was not an unreasonable application of

clearly established federal law.

[37] Cross-exami11atio11 ofState DNA Expert. Group also

claims in his third ground for relief that his counsel was

ineffective in cross-examining the State's DNA expert,

Dr. Reynolds. He contends counsel was not adequately

prepared (Doc. 34 at 69-70), and provides numerous

examples where counsel's questions were confusing,

convoluted, or inexact, leaving Dr. Reynolds "lost" and

"befuddled" (see id. at 65-71). The court rejected this

claim, reasoning:

Group also suggests that his counsel

did not prepare adequately before

cross-examining the state's DNA

expert witness. However, the record

indicates that defense *656 counsel

researched the subject of DNA

thoroughly before cross-examining

the Cellmark expert. Group does

not identify any mistakes made

by defense counsel as a result of

allegedly inadequate preparation.

strategy"). "[T]he Confrontation Clause guarantees an

opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to

whatever extent, the defense might wish." Delaware v. Van

Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674

(1986) (internal quotation marks omitted).

The Ohio Supreme Court reasonably concluded counsel's

cross-examination of Dr. Reynolds was thorough and

effective. Counsel told the court that Dr. Baird had

rec01mnended preparation material and counsel worked

"feverishly" to prepare, reading several books and

consulting with people familiar with DNA testing (Doc.

22-5 at 652). The court also assured Group that because

he had lost his expert, defense counsel had "wide

latitude" in cross-examining Dr. Reynolds (id. at 654).

Finally, although counsel's questioning at times was

not as artful or exact as it could have been, in nearly

every instance Group cites, Dr. Reynolds was able to

provide a comprehensive and meaningful answer after

brief clarification (see, e.g., id. at 701 ("I think what

you're asking me is sometimes, with PCR, there are

some substrates that don't amplify well.")). And in

many other instances, Dr. Reynolds agreed with counsel's

characterization of the technology or evidence (see, e.g.,

id. at 684--85 (repeatedly answering "[t]hat's right" and

"that is correct")).

The state court correctly concluded that Group has

not identified any specific mistakes counsel made

during cross-examination that prejudiced his case, or

any additional information that counsel should have

uncovered that would have benefitted his case. On

the particular issue of whether the blood evidence was

contaminated, Dr. Reynolds was adamant in her position

that the State's DNA test results were "extraordinarily

clean" (id. at 695). "Again," she testified, "there's no

Group, 98 Ohio St.3d at 270, 781 N.E.2d 980.

indication of any kind of mixture that would cause me to

feel that these samples were contaminated in any way" (id.

[38] [39] '"[D]ecisions about 'whether to engage in crossat 695-96). Group may be dissatisfied with counsel's

examination, and if so to what extent and in what manner,

inability to impeach Dr. Reynolds and cast doubt on

are ... strategic in nature' and generally will not support

the DNA test results, especially on the contamination

an ineffective assistance claim."' Davie v. Mitchell, 291

issue, but that does not mean counsel's performance

F.Supp.2d 573, 604 (N.D.Ohio 2003) (quoting Dunham

was deficient under Strickland's exacting standard. See

v. Travis, 313 F.3d 724, 732 (2d Cir.2002)); see also

Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431. The Ohio

United States v. Steele, 727 F.2d 580, 591 (6th Cir.1984)

Supreme Court did not contravene or misapply Supreme

(concluding cross-examination fell "within the area of

Court precedent in rejecting this claim.

trial tactics and strategy that should not be subjected to

second guessing and hindsight by this Court" and noting

"an attorney must be free to determine questions of trial

A-14

Group v. Robinson, 158 F.Supp.3d 632 (2016)

Group's shoe that matched the DNA

of Mr. Lozier, the murder victim;

the fact that, while in prison, Group

tried to enlist several others to

falsify evidence and to eliminate or

intimidate Mrs. Lozier; and the fact

that the box of Ohio Wine invoices

was missing from the Downtown

Bar after the shootings.

[40] Pmmise to Jury Regarding Defense DNA Expert.

Group asserts in his Eighth Ground for Relief that trial

counsel failed to properly investigate Dr. Baird and falsely

promised the jury that the defense would present a DNA

expert to prove the blood evidence was contaminated

(Doc. 45-1 at 1). He contends that counsel's "empty

promise eviscerated the defense team's credibility with the

jury and *657 created an adverse inference against the

defense presented, thereby prejudicing" Group (id. at 2).

Group raised this claim on post-conviction review. The

trial court dismissed it as barred by res judicata, and the

Ohio court of appeals affirmed. Group, 201 l-Ohio-6422,

at if 92. The appellate court ruled:

In his third ground for relief, Group argues that

trial counsel was ineffective for "misleading" the

jury, during opening statements, into believing that

defense would present a DNA expert at trial. Group

specifically asserts: "The failure to provide the promised

DNA expert caused the defense to lose all credibility

because the DNA results were material and outcome

determinative. The State's DNA results, if scientifically

valid, place Petitioner at the scene of Mr. Lozier's

murder." Again, Group cites directly to the record in

support of this claim. He also cites to Powers' affidavit.

For all of the aforementioned reasons, the trial court

correctly concluded this claim is barred by res judicata.

Id. The appellate court alternatively ruled that even if

the claim were not procedurally barred, it lacked merit,

because Group could not prove prejudice given the weight

of the evidence of Group's guilt. Id. The court explained:

[T]he evidence of the guilt of Scott

Group is overwhelmingly persuasive

- a constellation of both direct and

circumstantial evidence pointing

convincingly and powerfully to

Scott Group as the perpetrator,

one who shot his victims in cold

blood, and then later - from his

jail cell - attempted to hire a

hit man in order to eliminate and

thereby silence the sole survivor.

This evidence includes: Mrs. Lozier's

eyewitness identification of Group,

which was reliable considering that

Group, as her wine deliveryman,

was no stranger to her; blood on

Id. at if 88 (internal quotation marks omitted).

Group acknowledges his claim may be procedurally

defaulted, barred by res judicata, but he argues he should

be excused by the ineffective assistance of post-conviction

counsel (Doc. 45-1at10-18). The State, however, has not

raised the procedural default defense, and it is waived.

See, e.g., Trest v. Cain, 522 U.S. 87, 89, 118 S.Ct. 478,

139 L.Ed.2d 444 (1997) ("Procedural default is normally

a 'defense' that the State is 'obligated to raise' and

'preserv[e]' if it is not to 'lose the right to assert the defense

thereafter."' (quoting Gray v. Netherland, 518 U.S. 152,

166, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996))).

[41] Where federal habeas courts disregard a proceduralbar ruling, the state court's alternative merits ruling

receives AEDPA deference under Section 2254(d)(l).

See, e.g., Brooks v. Bagley, 513 F.3d 618, 624--25 (6th

Cir.2008) ("[A]n alternative procedural-bar ruling does

not alter the applicability of AEDPA."). Given the

·overwhelming evidence of Group's guilt, including the

victim's consistent identification of Group as the shooter,

it was not unreasonable for the state appellate court

to discount the effect counsel's unfulfilled promise had

on the jury's verdict. Further, while Group describes

counsel as promising the jury would hear "game-changing

DNA evidence" (Doc. 45-1 at 18), counsel in fact

peppered his statement with suppositions (see Doc. 224 at 450 ("In all likelihood we anticipate that *658

this expert ... will determine, we anticipate, that these

artifacts are contaminates and ... render any DNA testing

moot.")). Group's speculation that the jury must have

"expect[ed] a major evidentiary development" based on

these comments does not show the state court's prejudice

determination was objectively unreasonable (Doc. 451 at 19). And, in any event, counsel thoroughly crossexamined the State DNA expert regarding contamination,

even if counsel did not impeach the expert to the extent

Group may have wished. This sub-claim is meritless. See

Lundgren v. Mitchell, 440 F.3d 754, 770 (6th Cir.2006) ("If

A-15

Group v. Robinson, 158 F.Supp.3d 632 (2016)

Petitioner fails to prove either deficiency or prejudice, then

Petitioner's ineffective assistance of counsel claims must

fail.").

Officer Lou Ciavarella testified that he performed

a gunshot residue test on Group's hands on the

afternoon of January 18, 1997. However, Ciavarella's

test took place at 3:25 p.m., more than four hours after

the shooting. According to Ciavarella's unchallenged

testimony, the Bureau of Criminal Identification and

Investigation ["BCI"] recommends that any gunshot

residue test be done within two hours after a gun is fired

because the residue tends to rub off a person's hands

over time. Thus, a negative test would have been devoid

of probative value.

Firearm-Related Evidence (Fourth Ground for Relief)

Group claims in his Fourth Ground for Relief that trial

counsel failed to develop evidence showing: (1) Group's

physical impairments made it "improbable" that he could

have fired a gun; and (2) his hands lacked gunshot residue

at the time of the arrest (Doc. 34 at 73). Only the latter

sub-claim, however, is preserved for habeas review.

Physical lmpail'ment Evidence. At t1ial, Group testified

about physical impairments that he claims affected his

ability to hold and fire a gun, including a gunshot wound

affecting his right hand and arm, a broken right thumb

that was later re-broken, and lacerations to his left arm

from putting his left hand through a glass window (Doc.

16 at 66-67). Group faults trial counsel for failing to

develop additional evidence at trial suggesting he was

physically incapable of holding and firing a gun. The

post-conviction court found this claim barred by res

judicata, and the court of appeals affirmed. Group, 20110hio-6422, at iJiJ 93-95. As with Group's First and Second

Grounds for Relief, this Court incorporates its previous

analysis finding this sub-claim procedurally defaulted

without good cause to excuse the default (see Doc. 49 at

17-18).

Group, 98 Ohio St.3d at 269, 781 N.E.2d 980. Group

claims the state court's determination that "no valid test

was possible" *659 because more than two hours had

passed is an unreasonable determination of the facts under

Section 2254(d)(2) (Doc. 34 at 86). The testimony to which

Group refers is this:

Q. Do you know why BCI recommended a two-hour

limit?

A. For the most part they recommended a two-hour

limit because as time goes on, there is an ever

more probable - it's ever more probable that the

individual will have wiped some or the majority of

the debris off his hands. Any time you are rubbing

your hands together, putting your hands in your

pockets, washing your hands, driving a car, rubbing

your hands on the 'steering wheel, winding a window,

all of these things make that debris disappear.

(42] Gunshot Residue Evideuce. Group faults trial counsel

for failing to present a witness who could have explained

the "exculpatory" test results showing no gunshot residue

was present on Group's hands when he was arrested (Doc.

34 at 86-87, 90-91).

Group raised this claim on direct appeal to the Ohio

Supreme Court, which rejected it on the merits. The court

opined:

Group further contends that counsel did not employ

"a scientific investigation unit" to show that Group did

not fire a gun on January 18, 1997. But Group fails

to show either prejudice or deficient performance. As

to prejudice, there is no way for us to tell whether the

results of such testing would have helped Group's case.

As to performance, counsel's performance cannot be

characterized as deficient, because the record indicates

that no valid test was possible.

Q. How about if you go into a restroom and wash your

hands?

A. Exactly.

(Doc. 22-5 at 28). He contends that Ciavarella's testimony

implied it is in fact possible to detect gunshot residue when

a hand is swabbed after the BCI's recommended twohour time period, and therefore his negative test result

was "exculpatory" evidence (Doc. 34 at 86 (citing Doc.

22-5 at 28)). He criticizes the court for "misconstru[ing]

BCI's two hour recommendation as the equivalent of a

scientific impossibility" and posits that the police must

have considered the gunshot residue test worthwhile or

they would not have conducted the test (id.).

Group has not met his burden of rebutting the

Ohio court's factual findings "by clear and convincing

A-16

Group v. Robinson, 158 F.Supp.3d 632 (2016)

evidence." 28 U.S.C. § 2254(e)(l); see also Burt, 134 S.Ct.

at 15. Ciavarella may have implicitly acknowledged it

is possible some gunshot residue may remain on hands

longer than two hours after firing a gun, but he also

explained BCI recommends a two-hour limit because the

likelihood of a false negative increases thereafter. Group

fails to show it was objectively unreasonable for the Ohio

Supreme Court to conclude the negative test result carried

minimal probative value.

Group further argues the Ohio court did not adjudicate

the merits of Stricklands prejudice prong for this claim

because, under Ohio law, "the Ohio Supreme Court

does not adjudicate a claim if the defendant must

resort to evidence outside the appellate record to show

prejudice" (Doc. 34 at 87 (citing State v. Kirkland,

140 Ohio St.3d 73, 83, 15 N.E.3d 818 (2014); State v.

Mammone, 139 Ohio St.3d 467, 501, 13 N.E.3d 1051

(2014); State v. Keith, 79 Ohio St.3d 514, 535-36, 684

N.E.2d 47 (1997))). He maintains this Court should

therefore review his claim de novo. Group misstates the

law. In the cases he cites, the court simply recognized

that defendants sometimes need extra-record evidence to

prove their claims, and because the court is precluded

from considering such evidence, the claims are more

appropriately presented post-conviction. The court went

on, however, to rule on the claims. See, e.g., Keith, 79

Ohio St.3d at 536, 684 N.E.2d 47 ("Regardless, we find

that appellant has failed to prove prejudice."). The Ohio

Supreme Court reasonably concluded that Group could

not show that he was prejudiced by counsel's failure

to present additional evidence concerning the negative

gunshot residue test.

to a speedy and public trial, by an impartial jury" U.S.

CONST. amend. VI. The Sixth Amendment "reflect[s] a

profound judgment about the way in which law should

be enforced and justice administered. ... Providing an

accused with the right to be tried by a jury of his peers

g[ives] him an inestimable safeguard against the corrupt

or overzealous prosecutor and against the compliant,

biased, or eccentric judge." Duncan v. Louisiana, 391 U.S.

145, 155-56, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Due

process requires "a jury capable and willing to decide

the case solely on the evidence before it, and a trial

judge ever watchful to prevent prejudicial occurrences and

to determine the effect of such occurrences when they

happen." Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct.

940, 71 L.Ed.2d 78 (1982).

Juror Disqualification (Fifth Ground for Relief)

[46] Group claims the trial court improperly excused for

cause a prospective juror, Juror No. 389, who stated that

she was opposed to the death penalty but would follow

the law (Doc. 16 at 75-80). In adjudicating this claim, the

Ohio Supreme Court reasoned:

Group contends that it was improper to dismiss jurors

for cause because they expressed reservations about

capital punishment. ... He contends that prospective

juror No. 389 was improperly excused for cause because

of her opposition to the death penalty. Prospective juror

No. 389 stated that although she did not believe in

capital punishment, she could vote for it "[w]hen the

state proves it to me." She also stated that in order for

the state to prove it to her, it would have to present more

than one eyewitness to the crime:

"Q. What kind of proof do you think you would want?

Fifth and Sixth Grounds for Relief

A. Hard evidence that he really did this.

Q. Like what?

Jury Challenges

[43] Group argues in his Fifth and Sixth Grounds for

Relief that the trial court denied him a fair and impartial

jury by excusing two properly qualified jurors (Doc. 16 at

75, 80). Group raised these claims on direct appeal to the

Ohio Supreme Court, which adjudicated them on *660

the merits. The claims are therefore preserved for federal

habeas review.

[44] [45] The Sixth Amendment commands that "[i]n all

criminal prosecutions, the accused shall enjoy the right

A-17

A. Like what?

Q. Yeah.

A. I don't know.

***

Q. How about an eyewitness?

A. A couple. Not one. I will need more than one.

Group v. Robinson, 158 F.Supp.3d 632 (2016)

as a juror in accordance with his

instructions and oath."

***

Q. If I only had one eyewitness, that would not be

The trial judge here determined that the prospective

juror did not understand the concept of "proof beyond

a reasonable doubt" and would not follow the law

in that regard. We must defer to that finding if the

record supports it, and, in this case, the record does.

Prospective juror No. 389 said that she would hold

the state to an extraordinarily high burden of proof

in the guilt phase of a capital case, requiring the state

to produce two eyewitnesses and the murder weapon

before she would vote to convict. Her opinion persisted

despite the best efforts of defense counsel to explain

what the state's burden actually was. Because the

record supports the trial judge's decision to grant the

challenge for cause, we overrule Group's first and fourth

propositions oflaw.

enough?

A. That's his word against my word. Like, I'd have to

weigh it. I really need more than one."

The prosecutor also asked the prospective juror, "What

ifl told you that we don't have the gun that was used to

kill Mr. Lozier." The prospective juror's response was

"How can you prove that he - that he did something

if you don't have the gun?"

The state challenged prospective juror No. 389 for

cause. In ruling on the challenge, the trial judge

expressed her concern that, although the prospective

juror had indicated that she would follow the law in the

penalty phase, she would not follow the law in the guilt

phase but would hold the state to a higher burden of

proof than the law prescribed. The judge concluded: "I

don't think that she understands the law, and I don't

think she'll follow the law in that regard."

The defense then requested a further opportunity to

question the prospective juror. The judge granted the

request. During this additional voir dire, defense *661

counsel tried to explain the difference between proof

beyond a reasonable doubt and proof beyond all doubt.

Counsel then asked the prospective juror whether

she would use the reasonable-doubt standard if so

instructed, and the prospective juror answered, "Yes."

But when the prosecutor asked the prospective juror

what "beyond a reasonable doubt" meant to her, she

gave confused responses: "They have to prove to me

all the evidence, everything that comes in, prove to me

beyond a reasonable doubt." She went on to explain,

"They have to prove to me. Make my mind up* * *with

all of the evidence they have." The prosecutor asked,

"With two eyewitnesses and a gun?" "Yes," said the

prospective juror.

"The

proper

standard

for

determining when a prospective

juror may be excluded for cause

based on his views on capital

punishment is whether the juror's

views would prevent or substantially

impair the performance of his duties

Group, 98 Ohio St.3d at 254--55, 781 N.E.2d 980 (citations

omitted).

[47] [48] [49] [50] In Witherspoon v. Illinois, 391 U.S.

510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the Supreme

Court recognized the Sixth Amendment's guarantee of

an impartial jury provides capital defendants the right

to a jury not "uncommonly willing to condemn a man

to die." Id. at 521, 88 S.Ct. 1770. At the same time,

the State has a "legitimate interest in excluding those

jurors whose opposition to capital punishment would not

allow them to view the proceedings impartially, and who

therefore might frustrate administration of a State's death

penalty scheme." Wainwright v. Witt, 469 U.S. 412, 416,

105 S.Ct. 844, 83 L.Ed.2d 841 (1985). During voir dire,

therefore, a prosecutor may probe into prospective jurors'

views of the death penalty, and may challenge for cause a

potential juror who appears unwilling to return a capital

sentence. Id. at 423-24, 105 S.Ct. 844. Only "a juror who

is substantially impaired in his or her ability to impose

the death penalty under the state-law framework can be

excused for cause." Uttecht v. Brown, 551 U.S. 1, 9, 127

S.Ct. 2218, 167 L.Ed.2d 1014 (2007). A juror is properly

excused "where the trial judge is left with the definite

impression that a prospective juror would be unable to

faithfully and impartially apply the law." Witt, 469 U.S.

at 425-26, 105 S.Ct. 844.

[54] Federal habeas courts accord

[51]

[52]

[53]

"special deference" to state trial courts in applying these

standards, because trial judges are in the best position to

A-18

Group v. Robinson, 158 F.Supp.3d 632 (2016)

assess the demeanor and credibility of the jurors. See, e.g.,

Darden v. Wainwright, 477 U.S. 168, 175-78, 106 S.Ct.

2464, 91L.Ed.2d144 (1986). "The question is not whether

the trial judge was wrong or right in his determination of

impartiality, but merely whether his decision was 'fairly

supported by the ·1:662 record."' Bowling v. Parker, 344

F.3d 487, 519 (6th Cir.2003) (quoting Witt, 469 U.S. at

433, 105 S.Ct. 844). A trial court's finding "may be upheld

even in the absence of clear statements from the juror that

he or she is impaired." Uttecht, 551 U.S. at 7, 127 S.Ct.

2218. And "when there is ambiguity in the prospective

juror's statements, 'the trial court ... [is] entitled to resolve

it in favor of the State."' Id. (quoting Witt, 469 U.S.

at 434, 105 S.Ct. 844). Thus, federal habeas courts,

in reviewing Witherspoon-Witt claims, like ineffectiveassistance claims, must be "doubly deferential." White v.

Wheeler, U.S. - - , 136 S.Ct. 456, 460, 193 L.Ed.2d

384 (2015) (internal quotation marks omitted).

Group emphasizes that Juror No. 389 should not have

been excused for cause because she stated fourteen times

that she would follow the court's instructions on the law

(Doc. 16 at 76 (citing Doc. 22-3 at 733, 737, 742-43,

745, 748, 751, 760-61, 766--69)). But the record shows the

juror's assurances that she could follow the law were belied

by her consistent position that she would impose a higher

standard of proof than the law requires. As the Ohio

Supreme Court noted, Juror No. 389 repeatedly affirmed

the State would need to present at least two eyewitnesses

and the murder weapon to convince her of Group's guilt

(see Doc. 22-3 at 748-50, 770). She also agreed the proof

should show Group's guilt "beyond all doubt" because

it was a capital crime (id. at 752). It is her views on

the standard of proof for capital defendants, rather than

the death penalty itself, that "substantially impaired" her

ability to follow the law. Witt, 469 U.S. at 434, 105 S.Ct.

844. The trial judge conducted a "'diligent and thoughtful

voir dire"'; "considered with care the juror's testimony;

and ... was fair in the exercise of her 'broad discretion' in

determining whether the juror was qualified to serve in this

capital case." Wheeler, 136 S.Ct. at 461 (quoting Uttecht,

551 U.S. at 20, 127 S.Ct. 2218).

Group contrasts the trial court's treatment of Juror No.

389 with that of another juror, Juror No. 318, whom

the court refused to remove for cause after the defense

challenged her on the ground that she was biased in favor

of the death penalty (Doc. 16 at 76-78). Group points out

that Juror No. 318 stated under oath that she thought

the death penalty should be imposed for every murder;

could not presume Group innocent until proven guilty;

thought Group should testify if he had nothing to hide;

and believed mitigation evidence to be nothing more than

excuses (id. (citing Doc. 22-1 at 660, 669-70; Doc. 22-2

at 22, 26--30)). Group argues that "[n]either side, nor the

court, were able to move her off of those positions[,] [but]

because she said she could follow the law, the court refused

to excuse her for cause" (id. at 78).

First, the trial court's treatment of Juror No. 318 has

no bearing on the constitutionality of Juror No. 389's

dismissal. Second, Juror No. 318 qualified her positions

on most of the issues Group cites. For example, after

stating her belief that "if [defendants] go out and murder

someone, they deserve to die," she continued, "I think

that there might be reasons - there might not be reasons,

but certain circumstances where I wouldn't feel that

way" (Doc. 22-1at660). She also confirmed, "I believe in

the death penalty, but, again, I think I'm fair enough that I

could make a different opinion if [the State] did not prove

[its] case to me" (id. at 669).

Group finally argues the trial court's removal of Juror

No. 389 violated state law (Doc. 16 at 80). However, the

Supreme Court has "repeatedly held that a state court's

interpretation of state law, including one announced on

direct appeal of the *663 challenged conviction, binds

a federal court sitting in habeas corpus." Bradshaw v.

Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407

(2005) (citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112

S.Ct. 475, 116 L.Ed.2d 385 (1991)).

In short, the Ohio Supreme Court reasonably determined

that the trial court's decision to excuse Juror No. 389

for cause was fairly supported by the record and not

"so lacking in justification that there was an error well

understood and comprehended in existing law beyond any

possibility for fairminded disagreement." Harrington, 562

U.S. at 103, 131 S.Ct. 770.

Juror Removal (Sixth Ground for Relief)

[55] Group argues the trial court erred when it removed

an alternate juror who expressed reservations about the

jury's verdict (Doc. 16 at 80-82). In rejecting this claim,

the court stated:

A-19

Group contends that the trial judge abused her

discretion by removing an alternate juror who did not

Group v. Robinson, 158 F.Supp.3d 632 (2016)

her statement suggests that her reservations would in

fact have affected her judgment as to the sentence:

"[F]or a sentence as serious as this, * * * it's kind of

bothersome to me* * *."

agree with the jury's verdict of guilt on the aggravated

murder charge.

After the jury returned its verdicts, the trial court

asked each of the four alternate jurors whether they

could "accept" the verdicts rendered by the jury on the

aggravated murder charge and its specifications. Each

one said that he or she could.

Before the penalty phase, a juror was dismissed and

replaced with the first alternate juror. However, as soon

as the alternate learned that she was to sit on the jury

in the penalty phase, she advised the trial judge that

she was "emotional and a little shook up" and that she

wanted to address the court.

In chambers, the fonner alternate - now designated

juror No. 10- said that, while she felt that the evidence

tended to show guilt, she was "bothered by a lot of

things that the police didn't do." She stated, "[F]or a

sentence as serious as this, it's kind of bothersome to

me, because I think he should have had the advantage

of whatever investigating the - the police did and

there just were too many things that weren't done."

She further said, "I accept [the verdict], but with

reservations." She admitted that she had a reasonable

doubt of Group's guilt and would "[p]robably not"

have voted to convict. Although she had previously told

the court that she could accept the verdict, she later

explained that she thought she "had no choice." The

trial judge excused juror No. 10 and replaced her with

the second alternate.

Group contends that excusing this juror was

"manifestly arbitrary," and therefore an abuse of

discretion, because the juror's "reservations" as to the

verdict did not indicate an inability to be impartial.

We disagree. The trial court's decision was supported

by the juror's persistent reservations as to the verdict.

The jury's right to recommend a sentence is predicated

on the jury's finding of the defendant's guilt beyond a

reasonable doubt. It would be difficult for a juror who

could not accept the jury's finding of guilt to consider

the penalty with impartiality.

We further note that the juror raised the issue with the

court. The trial judge could reasonably interpret that

fact as an indication that the juror doubted her own

ability to serve in the penalty phase. Moreover, the juror

appears to have felt strongly about the issue. Finally,

*664 Group, 98 Ohio St.3d at 257-58, 781 N.E.2d 980

(citations omitted).

Group argues the trial court erred in removing Juror No.

10 from the jury because, although the juror expressed

reservations about Group's guilt, she never said that she

could not accept the jury's verdict (Doc. 16 at 82). The

trial judge's detennination, however, was fully supported

by the record. When the court asked Juror No. 10

whether she would have entered a guilty verdict during the

culpability phase, she answered "[p]robably not" (Doc.

22-7 at 294). She also expressly confirmed she had "a

reasonable doubt that the State did not prove their

case" (id. at 303). On these facts, the Ohio Supreme Court's

decision neither contravened nor misapplied federal law.

Seventh Ground for Relief

Sufficiency of the Evidence

Group argues in his Seventh Ground for Relief that the

State failed to produce sufficient evidence supporting

his convictions for attempted aggravated murder under

OHIO REV. CODE§ 2903.0l(B) and intimidation under

OHIO REV. CODE§ 2921.03(A) (Doc. 16 at 83). Group

raised this claim on direct appeal to the Ohio Supreme

Court, which addressed it on the merits.

[56] [57] [58] [59] [60] [61] The Due Process Clause

of the Fourteenth Amendment requires a state to prove

every element of a crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979). A habeas court must determine

"whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential *665 elements of the crime

beyond a reasonable doubt." Id. at 319, 99 S.Ct. 2781.

"[T]he Jackson inquiry does not focus on whether the trier

of fact made the correct guilt or innocence determination,

but rather whether it made a rational decision to convict

or acquit." Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct.

853, 122 L.Ed.2d 203 (1993). This Court must limit its

review to evidence adduced during trial. Herr era, 506 U.S.

A-20

Group v. Robinson, 158 F.Supp.3d 632 (2016)

at 402, 113 S.Ct. 853. Sufficiency-of-the-evidence claims

are assessed "with explicit reference to the substantive

elements of the criminal offense as defined by state law."

Jackson, 443 U.S. at 324 n. 16, 99 S.Ct. 2781. Because both

Jackson and AEDPA apply to Group's sufficiency claim,

this Court's review requires deference at two levels. "First,

deference should be given to the trier-of-fact's verdict,

as contemplated by Jackson; second, deference should be

given to the [state court's] consideration of the trier-offact's verdict, as dictated by AEDPA." Davis v. Lafler, 658

F.3d 525, 531 (6th Cir.2011) (internal quotation marks

omitted).

Attempted Aggravated Murder

Group claims the evidence adduced at trial was

insufficient to satisfy the elements of attempted

aggravated murder (Doc. 16 at 83-84). He argues that

his only intent was to solicit Perry to firebomb Sandra's

house, not to murder her, and "[m]ere solicitation does

not rise to the level of attempt" under Ohio law (id. at 84

(citing State v. Dapice, 57 Ohio App.3d 99, 566 N.E.2d

1261 (1989))).

The Ohio Supreme Court, in rejecting this claim,

reasoned:

Group contends that the state introduced insufficient

evidence to prove him guilty of attempted aggravated

murder. When a defendant challenges the legal

sufficiency of the state's evidence, "the relevant question

is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt."

The state's evidence showed that Group had asked

Adam Perry to firebomb Mrs. Lozier's house. In

exchange, Group said he would give Perry $150,000

and would dissuade a witness from testifying in Perry's

trial. Group gave Perry Mrs. Lozier's address, gave him

instructions for making a firebomb, and instructed him

to drop a key chain with the name "Charity" on it.

However, Perry took no further action in furtherance

of the plan against Mrs. Lozier after knocking on her

door and finding that she was still living in her house.

Perry testified that he had no intention of killing Mrs.

Lozier and that Group had assured him that the house

was vacant.

A-21

Group argues that "based upon [Perry's] testimony

there is absolutely no evidence of an attempted

aggravated murder of Sandra Lozier at the time of this

incident." The state contends that Group's actions in

this case - repeatedly asking Perry to firebomb the

house, giving him the address and the firebomb recipe,

offering to reward him, instructing him to leave a false

trail - were enough to permit the jury to find him guilty

of attempted aggravated murder.

The crime of attempt is defined by [OHIO REV. CODE

§] 2923.02(A), which provides: "No person, purposely

or knowingly, and when purpose or knowledge is

sufficient culpability for the commission of an offense,

shall engage in conduct that, if successful, would

constitute or result in the offense."

We have elaborated on the statutory definition as

follows: "A 'criminal attempt' is when one purposely

does or omits to do anything which is an act or omission

constituting a substantial step in a course of conduct

planned to culminate in his commission of the crime."

A "substantial step" requires conduct that is "strongly

corroborative of the actor's criminal purpose." "[T]his

standard does properly direct attention to overt acts

of the defendant which convincingly demonstrate a

firm purpose to commit a crime, while allowing police

intervention* * *in order to prevent the crime when the

criminal intent becomes apparent."

Two Ohio courts have concluded that merely soliciting

another person to commit a crime does not constitute

an attempt. That also appears to be the majority view

nationally.

However, Group did more than merely solicit the

firebombing of Mrs. Lozier's house. He took all action

within his power, considering his incarceration, to

ensure that the crime would be committed. He offered

Perry a large monetary reward and a reciprocal favor.

He gave Perry Mrs. Lozier's address and told him how

to make the bomb. He repeatedly wrote to Perry urging

him to complete the act.

"The federal courts have generally rejected a rigid or

formalistic approach to the attempt offense. Instead

Group v. Robinson, 158 F.Supp.3d 632 (2016)

they commonly recognize that '[t]he determination

whether particular conduct constitutes * * * [an

attempt] is so dependent on the particular facts of

each case that, of necessity, there can be no litmus

test to guide the reviewing courts.' * * * Following

this analysis, which we consider the better reasoned

approach, several federal courts have concluded that

a solicitation accompanied by the requisite intent may

constitute an attempt."

We agree with the federal courts that "a rigid or

formalistic approach to the attempt offense" should be

avoided. Nothing in the language of [ *666 OHIO

REV. CODE§] 2923.02(A), or in our own precedents,

compels such an approach. [OHIO REV. CODE §]

2923.02(A) defines attempt broadly as "conduct that, if

successful, would constitute or result in the offense." In

State v. Woods, supra, 48 Ohio St.2d 127, 357 N.E.2d

1059 (1976), paragraph one of the syllabus, we defined a

"criminal attempt" as "an act or omission constituting

a substantial step in a course of conduct planned to

culminate in [the actor's] commission of the crime." A

"substantial step" requires conduct that is "strongly

corroborative of the actor's criminal purpose."

With reference to "overt acts," we said in Woods that the

"substantial step" standard "properly direct[ s] attention

to overt acts of the defendant which convincingly

demonstrate a fim1 purpose to commit a crime, while

allowing police intervention * * * in order to prevent

the crime when the criminal intent becomes apparent."

Thus, we conclude that an "overt act" is simply an act

that meets the "substantial step" criterion enunciated in

Woods.

Group's acts - offering Perry $150,000 to throw a

firebomb through the window of Mrs. Lozier's house,

providing him with her address, repeatedly importuning

him to commit the crime, and instructing him how to

make the bomb and how to misdirect any subsequent

police investigation - strongly corroborate Group's

criminal purpose, and therefore constitute a substantial

step in a course of conduct planned to culminate in the

aggravated murder of Mrs. Lozier. We therefore find

that the evidence presented was sufficient to prove the

essential elements of attempted aggravated murder.

Group, 98 Ohio St.3d at 261-63, 781N.E.2d980 (citations

and footnote omitted).

[62]

[63] As he did before the Ohio Supreme Court,

Group argues that solicitation does not rise to the

level of attempt under Ohio law. But "it is not the

province of a federal habeas court to reexamine statecourt determinations on state-law questions." Estelle

v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116

L.Ed.2d 385 (1991). This Court thus limits its review to

"determining whether the evidence was so overwhelmingly

in favor of the petitioner that it compelled a verdict in

his or her favor." Thompson v. Bock, 215 Fed.Appx. 431,

436 (6th Cir.2007); see also Moore v. Duckworth, 443 U.S.

713, 714--15, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979) ("The

Court of Appeals properly deferred to the Indiana law

governing proof of sanity" in determining a sufficiencyof-the-evidence claim.).

[64] Here, the Ohio Supreme Court expressly rejected a

"rigid or more formalistic approach" to attempt offenses,

in which "merely soliciting another person to commit a

crime does not constitute an attempt," distinguishing the

very case Group cites to support his petition. See Group,

98 Ohio St.3d at 262, 781 N.E.2d 980 (citing Dapice,

57 Ohio App.3d at 104, 566 N.E.2d 1261). Instead, the

court endorsed a "substantial step" standard, in which

solicitation is sufficient to establish attempt if "strongly

corroborative of the actor's criminal purpose." Applying

that standard, the court concluded that Group's actions,

which were "more than merely solicit[ing] the firebombing

of Mrs. Lozier's house," strongly corroborated his

criminal intent to murder Sandra. Group, 98 Ohio St.3d

at 263, 781 N.E.2d 980. This Court defers to the Ohio

Supreme Court's analysis of state law, and agrees with

the court that, based on the record evidence, a "rational

trier of fact could have found the essential elements

of [attempted aggravated murder] beyond a reasonable

doubt." Jackson, 443 at 319, 99 S.Ct. 2781.

*667 Intimidation

Group also claims the evidence adduced at trial was

insufficient to satisfy the elements of intimidation (Doc.

16 at 83-84). He argues there was no evidence that he or

Perry "threatened, or took any action to put Mrs. Lozier

in fear to prevent her from testifying" (id. at 84.)

The Ohio Supreme Court rejected this claim as well,

stating:

A-22

Group v. Robinson, 158 F.Supp.3d 632 {2016)

Group ... also contends that the state failed to prove him

guilty of intimidation, which is defined in [OHIO REV.

CODE§] 2921.03(A). We disagree.

The state presented the following evidence to support

this charge: Group hired Perry to firebomb Mrs.

Lozier's house so that she would not testify against

him. In June 1998, Perry knocked on Mrs. Lozier's

door and asked her whether a "Maria something lived

there." When Mrs. Lozier said no, Perry thanked her

and left. Mrs. Lozier saw Perry looking around at the

neighboring houses, which gave her a "little bit of a

scare." She watched Perry drive away and noted that

he did not stop at any nearby houses. When she looked

up the name Perry had given her, she found that no

such person lived on her street. She described Perry's car

to a neighbor and asked her to watch for it. Two days

later, Sergeant Martin told Mrs. Lozier that someone

had been hired to kill her. She told Martin about the

incident with Perry, whereupon he advised her to move

out of her house right away. She followed this advice.

On these facts, the state presented sufficient evidence

to permit the jury to find Group guilty of intimidation.

[OHIO REV. CODE §] 2921.03(A) provides: "No

person, knowingly and by force [or] by unlawful threat

of harm to any person or property, * * * shall attempt

to influence, intimidate, or hinder a * * * witness in the

discharge of the [witness's] duty."

There is no question that Group intended to influence,

intimidate, or hinder Mrs. Lozier in discharging her

duties as a witness. Moreover, given Mrs. Lozier's

reaction to Perry's visit, the jury could reasonably find

that Perry's words and actions constituted a threat

within the meaning of the statute.

[65] [66] This Court must determine whether to grant a

Certificate of Appealability ("COA'') for any of Group's

grounds for relief. Group may not appeal this Court's

denial of any portion of his Petition "[u]nless a circuit

justice or judge issues a certificate of appealability," which

"may issue ... only ifthe applicant has made a substantial

showing of the denial of a constitutional right." 28 U.S.C.

§ 2253(c). Group must show "that reasonable jurists could

debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement

to proceed further." Slack v. McDaniel, 529 U.S. 473, 484,

120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (internal quotation

marks omitted). With respect to Group's procedurally

defaulted claims, Group must show "jurists of reason

would find it debatable whether the petition states a valid

claim of the denial of a constitutional right and that jurists

of reason would find it debatable whether the district court

was correct in its procedural ruling." Id.

[67]

*668 This Court concludes reasonable jurists

could not debate (I) the finding that Group procedurally

defaulted certain claims without good cause to excuse

the default or (2) the disposition of those claims Group

preserved for habeas review. The Ohio courts thoroughly

considered Group's arguments and rejected them with

considerable record support. This Court thus denies

Group a COA as to all claims.

CONCLUSION

For the foregoing reasons, this Court denies Group's

Petition for Writ of Habeas Corpus (Doc. 16). This Court

further certifies that there is no basis upon which to issue

a certificate of appealability. 28 U.S.C. § 2253(c).

Group, 98 Ohio St.3d at 263-64, 781 N.E.2d 980.

IT IS SO ORDERED.

Again, the Ohio court's decision is supported by the

record and is neither contrary to, nor an unreasonable

application of Jackson.

All Citations

158 F.Supp.3d 632

CERTIFICATE OF APPEALABILITY ANALYSIS

End of Document

© 2018 Thomson Reuters. No claim to original U.S. Government Works.

A-23

Case: 4:13-cv-01636-JZ Doc#: 55 Filed: 01/20/16 1of1. PagelD #: 8820

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Scott A. Group,

Case No. 4:13 CV 1636

Petitioner,

mDGMENT ENTRY

-vsmDGE JACK ZOUHARY

Norm Robinson, Warden,

Defendant.

This Court denies Group's Petition for Writ of Habeas Corpus (Doc. 16). This Court further

certifies thatthere is no basis upon which to issue a certificate ofappealability. 28 U.S.C. §2253(c).

IT IS SO ORDERED.

s/ Jack Zouhary

JACK ZOUHARY

U. S. DISTRICT JUDGE

January 20, 2016

A-24

Case: 16-3726

Document: 21-1

Filed: 05/25/2017

Page: 1

No. 16-3726

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

)

)

)

)

)

)

)

)

)

)

SCOTT A. GROUP,

Petitioner-Appellant,

v.

NORM ROBINSON, Warden,

Respondent-Appellee.

ORDER

Before: COLE, Chief Judge; BOGGS and SILER, Circuit Judges.

Scott A. Group, an Ohio death-row prisoner, appeals a district-court judgment denying

his petition for a writ of habeas corpus. See 28 U.S.C. § 2254. The district court denied a

certificate of appealability ("COA"). Group seeks it here. See 28 U.S.C. § 2253(c); Fed. R.

App. P. 22(b)(l)-(2). He also moves this court to authorize his federal habeas counsel to pursue

certain state-court litigation. See 18 U.S.C. § 3599 (a)(2) and (e).

The jury convicted Group of aggravated murder, two counts of attempted aggravated

murder, aggravated robbery, and intimidating a witness. The trial court sentenced him to death

and 38 years in prison.

He unsuccessfully sought relief on direct appeal and in state

postconviction proceedings, then filed a federal habeas corpus petition in 2014. As amended, it

raised eight claims: 1) counsel rendered ineffective assistance in the guilt phase by inadequately

cross-examining the State's key witness, Sandra Lozier; 2) counsel were ineffective in the guilt

phase because they failed to prepare the alibi witnesses or present evidence of another suspect;

3) counsel were ineffective in the guilt phase because they failed to use an expert to rebut the

State's DNA expe1i and ineffectually cross-examined that expert; 4) counsel were ineffective in

the guilt phase because they failed to present evidence that Group's hands were seriously

impaired and tested negative for gunshot residue; 5) the trial court improperly dismissed for

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Case: 16-3726

Document: 21-1

Filed: 05/25/2017

Page: 2

No. 16-3726

-2cause a properly qualified, unbiased juror; 6) the trial court improperly dismissed for cause a

properly qualified, unbiased alternate juror who expressed reservations about the guilty verdict;

7) the evidence of intimidation and of the second attempted aggravated murder was

constitutionally insufficient; and 8) counsel were ineffective in the guilt phase because they

failed to interview their own DNA expert properly, yet promised the jurors-falsely, as it turned

out-that they would hear important testimony from him. The district court denied discovery,

the petition, and a COA. Group moved to alter or amend the judgment pursuant to Federal Rule

of Civil Procedure 59(e) and, under Federal Rule of Civil Procedure 15, moved to amend the

federal petition by adding a ninth claim. The district court denied both motions. Group timely

appealed. He seeks a COA on Claims 1-3 and 8 and on the denials of his motions to alter or

amend the judgment, to amend the federal petition, and for discovery.

A COA shall issue "only if the applicant has made a substantial showing of the denial of

a constitutional right." 28 U.S.C. § 2253(c)(2). If the district court denied the habeas petition on

the merits, the applicant must show that "jurists of reason could disagree with the district court's

resolution of his constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327

(2003).

If the district court denied the petition on procedural grounds without reaching the

petitioner's underlying constitutional claim, a COA should issue when the applicant shows that

jurists ofreason would find debatable (a) whether the petition states a valid claim of the denial of

a constitutional right and (b) whether the district court was correct in its procedural ruling. Slack

v. McDaniel, 529 U.S. 473, 484 (2000).

Upon consideration, we DENY the COA application because Group has failed to make

the required showing. We also DENY Group's request that we authorize federal habeas

counsel's pursuit of the suggested state-court litigation.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

A-26

Case: 16-3726

Document: 26-1

Filed: 12/21/2017

Page: 1

No. 16-3726

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SCOTT A. GROUP,

)

)

Petitioner-Appellant,

)

)

v.

)

)

NORM ROBINSON, WARDEN,

)

)

)

)

Respondent-Appellee.

)

Before: COLE, Chief Judge; BOGGS and SILER, Circuit Judges.

Scott A. Group petitions for rehearing en bane of this court's order, entered on May 25,

2017, denying his application for a certificate of appealability. The petition was initially referred

to this panel, on which the original deciding judge does not sit. After review of the petition, this

panel issued an order announcing its conclusion that the original application was properly

denied. The petition was then circulated to all active members of the court, none of whom

requested a vote on the suggestion for an en bane rehearing. Pursuant to established court

procedures, the panel now denies the petition for rehearing en bane.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

A-27

Case: 16-3726

Document: 11

Filed: 08/29/2016

Page: 1

In The United States Court Of Appeals

For The Sixth Circuit

Scott A. Group,

Petitioner-Appellant,

-v-

Norm Robinson, Warden

Respondent-Appellee.

)

)

)

)

)

)

)

)

)

Case No. 16-3726

Death Penalty Case

Petitioner-Appellant's Motion for a Certificate of Appealability

Petitioner-Appellant Scott A. Group now moves this Court for a Certificate

of Appealability [COA] to appeal the district court's order denying habeas relief.

Habeas Judgment Entry, Doc. #: 55. No COA was issued by the district court.

Habeas Memorandum Opinion and Order, Doc. #: 54, PageID#: 8818-19. Group

must obtain a COA in order to appeal to this Court. 28 U.S.C. § 2253 (c). For the

reasons stated in the attached Memorandum in Support, Group is entitled to a COA

on his habeas claims and procedural issues because the district comi's resolution of

the case is debatable among reasonable jurists.

Respectfully submitted,

Isl Joseph E. Wilhelm

JOSEPH E. WILHELM (0055407)

joseph wilhelm@fd.org

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Case: 16-3726

Document: 11

Filed: 08/29/2016

Page: 2

Isl Alan C. Rossman

ALAN C. ROSSMAN (0019893)

alan rossman@fd.org

Isl Vicki Ruth Adams Werneke

VICKI RUTH ADAMS WERNEKE

(0088560)

vicki wemeke@fd.org

Assistant Federal Public Defenders

Capital Habeas Unit

Office of the Federal Public Defender

1660 West Second Street, Suite 750

Cleveland, Ohio 44113

(216) 522-4856

(216) 522-1951 (fax)

Counsel for Petitioner-Appellant

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Case: 16-3726

Document: 11

Filed: 08/29/2016

Page: 3

TABLE OF CONTENTS

Memorandum in Support ........................................................................................... 3

I.

Background information ...................................................................... .4

A.

Trial ............................................................................................ 5

B.

Review in state courts ................................................................ 8

C.

Habeas petition .......................................................................... 9

D.

Civil 59 inotion . ....................................................................... 10

E.

Second motion to amend habeas petition................................. 10

F.

District court's final order ......................................................... 11

II.

Standard of review for issuance of COA ............................................ 11

III.

A COA should issue on procedural grounds ...................................... 13

A.

B.

Group's First Ground is not procedurally defaulted ................. 13

1.

Ineffective post-conviction counsel.. .............................. 14

11.

Application of Slack standard to Trevino

argu1nent. ........................................................................ 19

111.

Group's underlying claim is substantial. ........................ 21

It's debatable if Group's Second Ground is procedurally

defaulted ............................................................... 26

1.

Group's post-conviction evidence and state court

review ............................................................................. 27

11.

Procedural bar inadequate to preclude habeas

review ............................................................................. 29

A-30

Case: 16-3726

C.

D.

IV.

Document: 11

Filed: 08/29/2016

Page: 4

111.

Ineffective alibi defense .................................................. 31

1v.

Deficient performance .................................................... 35

v.

Prejudice ......................................................................... 37

A COA should issue for Group's two post-judgment

motions .................................................................................... 39

1.

Proceedings in district court .......................................... 39

11.

Considerations for appealing post-judgment

motions ........................................................................... 40

111.

COA should issue for Group's motion to amend .......... .42

1v.

COA should issue for Rule 59 motion .......................... .44

a.

Funk report differs in kind from Powers'

affidavit ................................................................. 45

b.

Funk's report is valid evidence for Rule 59

motion ................................................................... 47

c.

Group was not dilatory ........................................ .48

d.

State's proof not overwhelming ........................... 50

COA should issue on denial of discovery under

Trevino ....................................................................................... 51

Merit denials: A COA should issue on Grounds Three and Eight. .... 52

A.

Trial proceedings relevant to DNA-based, Strickland

clailns ......................................................................................... 54

1.

Lifecodes appointed as defense expe1i .............................. 56

11.

Trial counsel promised a defense expert to the

jury.................................................................................... 56

A-31

Case: 16-3726

111.

Filed: 08/29/2016

Page: 5

Cross-examination of Dr. Reynolds ..................................... 58

B.

New evidence changes the picture and law............................. 59

C.

Group's new evidence ............................................................... 61

1.

Documentary evidence and Dr. Baird's

affidavit. ................................................................................ 61

11.

Attorney expert Christine Funk's report ............................. 64

Group's DNA-based, Strickland claims warrant

COA ........................................................................................... 68

D.

V.

Document: 11

1.

Reasonable jurists could debate deficient performance ...... 68

11.

Reasonable jurists could debate prejudice .......................... 71

Conclusion ......................................................................................... 77

A-32

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Filed: 08/29/2016

Page: 6

TABLE OF AUTHORITIES

Anderson v. Butler,

858 F.2d 16 (1st Cir. 1988) .............................................................................. 72

Barefoot v. Estelle,

463 U.S. 880 (1983) .......................................................................................... 12

Bedford v. Collins,

567 F.3d 225 (6th Cir. 2009) ........................................................................... 21

Bonin v. Calderon,

59 F.3d 815 (9th Cir. 1995) ...................................................................... .47, 48

Bracy v. Gramley,

520 U.S. 899 (1997) .................................................................................... 51, 52

CMF Communications, LLC v. Mitts Telecasting Co.,

424 F. Supp. 2d 1229, (E.D. Cal. 2005) .......................................................... .47

C.P. Interests, Inc. v. California Pools, Inc.,

238 F.3d 690 (5th Cir. 2001) .......................................................................... .47

Clark v. United States,

764 F.3d 653 (6th Cir. 2014) .................................................................. 40-42, 44

Crawford v. Washington,

541 U.S. 36 (2004) ............................................................................................ 54

Cullen v. Pinholster,

563 U.S. 170 (2011) .................................................................................... 51, 61

Dennis v. Sec'y. Penn. Dept. Corrections,

F.3d. - , 2016 WL 4440925 *39-54 (3rd Cir. 8/23/16, en banc) ................. 22

District Attorney's Office for the Third Judicial District, et al. v. Osborne,

557 U.S. 52 (2009) ............................................................................................ 72

Douglas v. Alabama,

380 U.S. 415 (1965) ......................................................................................... 29

A-33

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Filed: 08/29/2016

Page: 7

English v. Romanowski,

602 F.3d 714 (6th Cir. 2010) ........................................................................... 72

Ferensic v. Birkett,

501F.3d469 (6th Cir. 2007) ............................................................................ 22

Glenn v. Tate,

,

71 F.3d 1204 (6th Cir. 1995) ............................................................................ 68

Goff v. Bagley,

601F.3d445 (6th Cir. 2010) ............................................................................ 21

Greer v. Mitchell,

264 F.3d 663 (6th Cir. 2001) ............................................................... .18, 30, 68

Haliym v. Mitchell,

492 F.3d 680 (6th Cir. 2007) ............................................................................. 15

Hamblin v. Mitchell,

354 F.3d 482 (6th Cir. 2003) ............................................................................ 68

Harris v. Nelson,

394 U.S. 286 (1969) ........................................................................................... 51

Hill v. Mitchell,

400 F.3d 308 (6th Cir. 2005) ......................................................................... 18, 30

Huddleston v. Maclean,

640 F.2d 534 (5th Cir. 1981) ........................................................................... .47

Karis v. Calderon,

283 F.3d 1117 (9th Cir. 2002) ................................................................... .47, 49

Lee v. Kenma,

534 U.S. 3625 (2002) ........................................................................................ 29

Leisure Caviar, LLC v. US. Fish and Wildlife Service,

616 F.3d 612 (6th Cir. 2010) ............................................................................. .41

A-34

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Document: 11

Filed: 08/29/2016

Page: 8

Loza v. Mitchell,

766 F.3d 466 (6th Cir. 2014) ............................................................................ 15

Martin v. Ind. Mich. Power Co.,

292 F. Supp. 2d 947 (W.D. Mich. 2002) ......................................................... .47

Martinez v. Ryan,

566 U.S. 1, 132 S. Ct. 1309 (2012) ....................................................... 14, 18-21

Maupin v. Smith,

785 F.2d 135, 138 (6th Cir. 1986) ..................................................................... 29

Mayle v. Felix,

545 U.S. 644 (2005) ................................................................................ 9, 43, 44

McGuire v. Warden, Chillicothe Correctional Institution,

738 F.3d 741 (6th Cir. 2013) ............................................................................ 18

Moore v. Mitchell,

708 F.3d 760 (6th Cir. 2013) ............................................................................ 19

Moreland v. Robinson,

813 F.3d 315 (2016) ....................................... :..................................... 19, 41, 42

Morris v. Carpenter,

802 F.3d 825 (6th Cir. 2015) ..................................................................... 19, 59

Murphy v. Ohio,

263 F.3d 466 (6th Cir. 2001) ............................................................................ 11

Duber v. Guarino,

293 F.3d 19 (7th Cir. 2002) ............................................................................... 73

Plummer v. Jackson,

491 Fed. Appx. 671 (6th Cir. 2012) .............................................................. 73, 74

Porter v. McCollum,

558 U.S. 30 (2009) .............................................................................................. 51

A-35

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Filed: 08/29/2016

Page: 9

Ramseyer v. Wood,

64 F.3d 1432 (9th Cir. 1995) .............................................................................. 71

See Hovey v. Ayers,

458 F.3d 892 (9th Cir. 2006) ............................................................................. .47

Slack v. McDaniel,

529 U.S. 473 (2000) .................................................................................... passum

State v. Calhoun,

714 N.E.2d 905 (Ohio 1999) ......................................................................... 16, 30

State v. Cole,

443 N.E.2d 169, syl. (Ohio 1982) ....................................................................... 16

State v. Group,

781N.E.2d980 (Ohio 2002) ................................................................................. 6

State v. Ishmail,

423 N.E.2d 1068 (Ohio 1981) ....................................................................... 16, 59

State v. Jackson,

413 N.E.2d 819 (Ohio 1980) ............................................................................... 16

State v. Keith,

684 N.E.2d47 (Ohio 1997) ........................................................................... 17, 19

State v. Kirkland,

15 N.E.3d 818 (Ohio 2014) ................................................................................. 17

State v. Lentz,

639 N.E.2d 784 (Ohio 1994) ............................................................................... 16

State v. Madrigal,

721 N.E.2d 52 (Ohio 2000) ................................................................................. 17

State v. Mammone,

13 N.E.3d 1051(Ohio2014) ............................................................................... 17

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State v. Perry,

226 N.E.2d 104 (Ohio 1967) ............................................................................... 16

Strickland v. Washington,

466 U.S. 668 (1984) .................................................. :................................. passum

Toliver v. Pollard,

688 F.3d 853 (7th Cir. 2012) ........................................................................... 51

Trevino v. Thaler,

U.S._,

133 S. Ct. 1911(2013) ...................................................................... 14,18-21, 26

United States, ex. rel. Hampton v. Leibach,

347 F.3d 219 (7th Cir. 2003) .............................................................................. 72

United States v. Wade,

388 U.S. 218 (1967) ............................................................................................ 22

Watkins v. Sowders,

449 U.S. 341 (1981) ............................................................................................ 22

White v. Mitchell,

431F.3d517 (6th Cir. 2005) .............................................................................. 18

Whorton v. Bockting,

549 U.S. 406 (2007) ............................................................................................ 54

Ylst v. Nunnemaker,

501 U.S. 797, 803 (1991) .............................................................................. 15, 29

Federal Statutes

28 U.S.C. § 2253( c) ................................................................................................. 12

28 U.S.C. § 2255 ...................................................................................................... 40

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Memorandum in Support1

At first blush, this may appear to be an open-and-shut case. Scott Group

was convicted of robbing a bar owned by a married couple, Sandra and Robert

Lozier. He supposedly shot them both killing Robert and leaving Sandra alive. She

identified Group and DNA evidence supposedly sealed Group's fate as the culprit.

A small drop of Robert's blood was allegedly found on Group's gym shoe.

The state courts and the district readily accepted the notion that the evidence

against Group was overwhelming because of Sandra's identification and the DNA

evidence. But the notion that this is an open-and-shut case with overwhelming

proof of guilt is sophistry. Group's new evidence significantly undercuts Lozier's

identification testimony and the force of the DNA evidence.

For the first time on habeas review, Group supplied information that

seriously calls into question the Lozier's purported identification of him. Serious

doubts arise over her identification of him based on documents showing

discrepancies between the shooter and Group.

Lozier also gave inconsistent

accounts as to whether she lost consciousness after she was shot. This calls into

question her capacity to recall information accurately after she was traumatized by

gunshot wounds to the head, and her exposure to her husband's murder.

1

Group's motion is lengthy, but necessarily so. Without a COA from the

district court, Group must discuss the detailed facts and complicated procedural

issues at more length than would be necessary if the district court had granted a

COA for some of the issues.

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Additionally, the trial testimony reveals inconsistencies in her testimony as to

whether money bags in the Lozier's bar were in fact taken.

Nor does the DNA conclusively put Robert's blood on one of Group's shoes.

Group's new evidence demonstrates that the tested genetic material was derived

from a "mixed sample" meaning that another person's DNA was present. The

frequency with which Robert's DNA profile would be found was also

misrepresented at trial by the state. Contrary to what the jury was told, it cannot be

scientifically proven that Robert's DNA was in fact found on Group's gym shoe.

Robert's genetic profile is hardly unusual within the population.

Group's trial counsel failed miserably in their attempts to impeach either the

identification testimony or the DNA evidence. The representation provided by his

post-conviction counsel's was also abysmal.

At the heart of this appeal lies

Group's attempt to use new evidence to bring important new facts into view. In

order for Group to do that, he must meet the "cause and prejudice" exception to

procedural default based on the ineffective assistance of post-conviction counsel.

In this appeal, this Court must finally decide whether that exception for finding

"cause and prejudice" is applicable to Ohio's system of review.

I.

Background information.

This case involves a robbery with two associated shootings at the Downtown

Bar in Youngstown, Ohio in 1997. The proprietors of the Downtown Bar were

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also the victims, a married couple named Sandra and Robert Lozier. Sandra

survived after being shot in the head. She purportedly identified Scott Group as

the assailant.

The state offered DNA evidence to bolster Sandra Lozier's

identification of Group. As demonstrated below, both Lozier's identification and

the state's DNA evidence could have been successfully challenged to create

reasonable doubt over the identity of the shooter. But that opportunity was missed

due to the ineffective assistance rendered by Scott Group's trial counsel. See

Strickland v. Washington, 466 U.S. 668 (1984).

A. Trial.

On January 18, 1997 the Lozier's were counting the previous night's receipts

when there was a knock at the door. Sandra Lozier testified that the man at the

door that morning was the delivery person for the Ohio Wine company.

The man asked to look through the Lozier's invoices for Ohio Wine. After

parsing the invoices for a while, the man asked to use the restroom. When the man

returned, he brandished a pistol and ordered the Loziers to go into the men's

restroom. The man said that he was the brother of a young woman who was last

seen in the Downtown Bar. That young woman was later found to have been

murdered. The Loziers tried to assure the man that they were cooperating with the

police to help find the missing woman. Despite the Loziers' assurances, the man

shot Robert in the head, killing him. He also shot Sandra in the head twice.

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Sandra Lozier survived. She managed to call 911 at 11 :05 am. She said the

bar's Ohio Wine delivery person had shot her. Scott Group became the focal point

of the investigation because, at that time, he was the Ohio Wine company's

delivery person for the Downtown Bar. At trial, Lozier identified Group as the

perpetrator of the Downtown Bar crimes. See State v. Group, 781 N.E.2d 980,

985-87 (Ohio 2002).

Her testimony was vulnerable to impeachment, however, due to inconsistencies

in her identification of Group and as the result of the serious head trauma she

sustained. Group stridently denied any involvement, he presented several alibi

witnesses, and it was undisputed that he did not know the young woman who

disappeared from the Downtown Bar. There was evidence that a week prior to

these crimes, Group went to the Downtown Bar for a delivery and to look at some

invoices. (See Doc. #: 22-4, PageID#: 6024-28). That is, Sandra Lozier may have

conflated the prior date that Group came to the bar with the day of the crimes due

to her serious head trauma.

Discrepancies are apparent on the record regarding Lozier's testimony about

money bags that were purportedly stolen from the Downtown Bar. Lozier was

asked about the money that she claimed was taken ouring the shooting incident.

Lozier said she took the money out of the safe. Doc. #: 22-4, PageID #: 6030.

There were two safes but she opened just one of them. Id. at PageID #: 6031. That

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safe required a key and a combination. Id. Only one safe had money in it, and the

second was empty. Id. at PageID #: 6073-74.

Lozier said there were four bags of register money in the safe. She took out

all four bags from the safe-one bag for each register-and she put them on the

office desk. Id. at PageID#: 6031. One of those bags was "start-up" money. Id.

Lozier said she took all the money out of all the bags, totaling in her estimation,

about $1,200-1,300 dollars and some rolls of coins. Id. at PageID #: 6031-32.

Lozier reiterated that all the money was laying out on her desk when the assailant

was allowed into the bar. Id. at PageID #: 6033. After the shooting, there were still

some rolls of coins on the desk, but all the other money and the bags were gone. Id.

at PageID #: 604 7.

On cross-examination, Lozier testified that there were actually five bags of

money that she removed from the safe. Id. at PageID #: 6072, 6073. She claimed

that each bag was opened on her desk. Id. at PageID #: 6073. After the shooting,

Lozier did not return to the bar for ten days. Id. at PageID #: 6074. During that

time only her son, Robert Lozier, Jr. and the manager, Mark Chapman, had access

to the bar. Id. When asked ifLozier's son had removed the money and bags from

the bar and given them to the police, she answered, "I don't know." Id. at PageID

#: 6080.

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Officer Datko was in the first police car to arrive on the scene. Id. at PageID

#: 5998. Althought he spoke to Lozier twice, Datko was not able to ascertain if any

money was taken. Id. at PageID #: 5993-94. He observed the safe and it was

open. Id. at PageID #: 6006-6007. Significantly, Datko saw money bags inside the

open safe while he was with Officer Ciavarella. Id. at PageID #: 6007 He

confirmed that there was indeed money inside those bags, which he and Ciavarella

removed from the safe and examined. Id. at PageID 6007. He found a bag of small

bills and some rolls of coins. Id. at PageID 6007-08.

Despite issues with Lozier's identification of Group, the jury returned guilty

verdicts for the following charges:

[T]he aggravated murder of Robert Lozier under R.C. 2903.0l(B).

The aggravated-murder count had two death specifications: R.C.

2929.04(A)(5) (purposeful attempt to kill two persons) and R.C.

2929.04(A)(7) (murder during aggravated robbery). The indictment also

contained a count charging Group with the attempted aggravated murder of

Mrs. Lozier on January 18, 1997, and a count charging aggravated robbery,

R.C. 2911.0l(A)(l). Each count had a firearm specification, R.C.

2941.145(A) ....

Group, 781 N.E.2d at 989. "After a penalty hearing, [Group] was sentenced to,

death." Id.

B. Review in state courts.

The Ohio Supreme Court affirmed Group's convictions and death sentence

on direct review. Id. at 1006. Group did not petition for a writ of certiorari in the

Supreme Comi on direct review.

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Group also sought relief on state post-conviction review. O.R.C. §2953.21.

The. trial court denied his post-conviction petition, the Ohio Court of Appeals

affirmed, and the Ohio Supreme Court declined to exercise jurisdiction over

Group's post-conviction appeal. See Trial Court, Doc. #: 21-8, PageID #: 2457;

Ohio Court of Appeals, Doc.#: 21-9, PageID#: 2809; Ohio Supreme Court, Doc.#:

21-10, PageID #: 3090.

C. Habeas petition.

Group timely petitioned the district court for habeas relief raising seven grounds

for relief. Habeas Petition, Doc. #: 16, PageID #: 76. The district court denied

Group's request for discovery. Doc. 49, PageID #: 8729. Group moved to amend

his petition with an Eighth Ground, alleging ineffective trial counsel based on

counsel's false promise to the jury that it would hear testimony from a defense

DNA expert. Doc. #: 45, PageID #: 8617. The district court permitted that

amendment because Group's new claim related back to a core set of facts pleaded

in the "original, timely filed petition." Doc.#: 50, PageID #: 8749 (citing Mayle v.

Felix, 545 U.S. 644, 659 (2005)). The district court denied Group's petition on

January 21, 2016. Doc#: 54, PageID #: 8777; Doc.#: 55.

D. Civil 59 motion.

Group then timely moved to alter or amend the judgment under Rule 59, by

offering the opinion of Christine Funk an attorney expert on forensic, DNA issues.

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Doc. #: 56, PageID #: 8821. Funk's report explained how Group's trial counsel

performed in a professionally unreasonable manner in confronting the state's DNA

evidence. Doc.#: 56-1, PageID #: 8864-65.

Group then moved to stay the case to allow him the opportunity to "offer the

expert opinions of Dr. Dan E. Krane, Ph. D., of the Department of Biological

Sciences at Wright State University in Dayton, Ohio." Doc. #: 62, PageID #: 8928.

Group explained that he had entered into a contract for Dr. Krane's services on

March 5, 2016, and habeas counsel asked the district court to stay the case until

April 15, 2016, the date when habeas counsel could offer Dr. Krane's opinions to

the court. Id. at PageID #: 8929, 8931.

E. Second motion to amend habeas petition.

On April 15, Group filed Dr. Krane's sworn declaration in support of his Eighth

Ground, his Ninth Ground, proffered with his second motion to amend the petition,

and also his Motion to Alter or Amend the Judgment. Doc.#: 66, PageID #: 8957.

Group asserted that Dr. I<rane's declaration supported his ineffective trial counsel

claim in two important respects.

First, the prosecution misrepresented the

statistical significance of the population frequency statistic provided by the state's

DNA expert. Second, the evidence showed "[t]he presence of an additional allele

... consistent with the proposition that the results obtained from A8-1 [a blood spot

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on Group's shoe] are from a mixture of two or more individuals." Id. at PageID #:

8957-58.

F. District court's final order.

The district court denied Group's two post-judgment motions on May 27. Doc.

#: 67, PageID #: 8965; Doc. #: 68, PageID #: 8973. Group timely appealed that

judgment. Doc.#: 69, PageID #: 8974. He moved this Court for an order to stay

his appeal for exhaustion of his ninth ground in the state courts, but this Court

denied that motion. This Court set a briefing schedule for Group to request a COA

by August 29. Document: 8-1, Page: 1. Group now moves for a COA from this

Court.

II.

Standard of review for issuance of COA.

A district court must supply its reasoning when determining which claims

merit a COA, "which ideally should separate the constitutional claims that merit

the close attention of counsel and this court from those claims that have little or no

viability." Porterfield v. Bell, 258 F.3d 484, 487 (6th Cir. 2001); see also Murphy

v. Ohio, 263 F.3d 466 (6th Cir. 2001) (remanding motion for certificate of

appealability for district court's analysis of claims). The district court did not

supply that analysis in its final order, Doc. #: 54, PageID #: 8818-19. This Court

now must consider whether to grant a COA for Group's habeas claims under the

standard set forth in 28 U.S.C. § 2253(c).

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In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court held that §

2253 codified the standard it set forth in Barefoot v. Estelle, 463 U.S. 880 (1983),

but for the substitution of the word "constitutional" for "federal" in the statute. Id.

at 483. The Supreme Court reasoned that for claims denied on the merits the

habeas petitioner "must make a substantial showing of the denial of a

constitutional. right, a demonstration that, under Barefoot, includes showing that

reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues presented were

"'adequate to deserve encouragement to proceed further."' Id. at 483-84 (quoting

Barefoot, 463 U.S. at 893, n.4).

The Slack standard applies to the denial of a habeas claim on either the merits

or on a procedural ground.

See id. at 478.

If the district court denied the

petitioner's claim on procedural grounds, a habeas appeal should be taken "if the

petitioner shows, at least, that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right, and that jurists of

reason would find it debatable whether the district court was correct in its

procedural ruling." Id.

In the following section, Group argues that the district court's procedural

rulings are debatable among reasonable jurists such that a COA should issue.

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After discussing why a COA should issue on procedural grounds, Group then

argues why he is entitled to a COA on the merits of other constitutional claims ..

III.

A COA should issue on procedural grounds.

It is debatable among reasonable jurists whether the district court correctly

determined that Scott Group's First and Second habeas grounds were procedurally

defaulted. See id.

The district court also issued procedural rulings denying

Group's Motion to Alter/Amend the Judgment, his Motion to Amend the Petition,

and his Motion for Discovery. Those procedural rulings are also debatable among

reasonable jurists. See id.

A. Group's First Ground is not procedurally defaulted.

In Group's First Ground, he asserted that trial counsel rendered prejudicially

deficient performance because counsel failed to competently cross-examine Sandra

Lozier, the state's key witness. Doc.#: 16, PageID #: 109. The district court denied

this claim as procedurally defaulted on the basis of Ohio's res judicata rule. Doc.

#:54, PageID #: 8796 (Citing Doc. #:49, PageID #: 8734-40).

A COA should issue as to whether Group's first habeas ground is defaulted.

Reasonable jurists would debate the adequacy of Ohio's res judicata rule to

Group's first ground.

Reasonable jurists would debate whether Group can

demonstrate cause to excuse the state's procedural bar due to the ineffective

assistance rendered by his post-conviction counsel when Group was before the

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Ohio Court of Common Pleas during state post-conviction review. See Trevino v.

Thaler,_ U.S. _, 133 S. Ct. 1911 (2013); Martinez v. Ryan, 566 U.S. 1, 132 S.

Ct. 1309 (2012). After finding the district court's procedural rulings debatable,

reasonable jurists would also find it debatable whether Group pleaded a valid,

underlying Strickland claim. See Slack, 529 U.S. at 484.

i.

Ineffective post-conviction counsel.

Group's post-conviction counsel failed to append any cogent evidence de

hors the record to support this Strickland claim. Post-conviction counsel alleged

that trial counsel ineffectively cross-examined Sandra Lozier. Counsel noted that

Lozier's descriptions of her assailant were inconsistent and they did not fit with

Group's physical characteristics.

Counsel also asserted that Lozier's medical

records showed she did not lose consciousness after she was shot, which

contradicted her testimony. Doc.#: 21-6, PageID #: 2175.

Post-conviction counsel explained that Lozier's medical records were being

filed under seal to the amended petition as Exhibit H. Id. at PageID #: 2177. But

counsel did not file those medical records with the amended petition. The Ohio

Court of Appeals sua sponte considered a police report with a specific description

of the assailant from Lozier and photographs of Group. Id. at 2834.

That police report is hand-written. It notes this description taken by the

police from Sandra: "Shakes, 5'9" thin Blond short, clean shaven." Doc. #: 21-6,

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PageID #: 2254. The photographs were attached to Ruth Group's affidavit and

were marked separately as Exhibits 1, 2, and 3. The photograph marked as Exhibit

1 depicts Scott wearing his Ohio Wine work shirt with the name "Scott" visible on

the right breast of his shirt. Doc.#: 21-6, PageID #: 2263.

This Court looks to the opinion issued by the Ohio Court of Appeals to

determine whether Group's post-conviction claim is procedurally defaulted. See

Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991);

Loza v. Mitchell, 766 F.3d 466,

473 (6th Cir. 2014); Haliym v. Mitchell, 492 F.3d 680, 691 (6th Cir. 2007). The

Ohio Court of Appeals found that the claim was barred by res judicata. Doc. #: 219, PageID #: 2834. That finding is the result of post-conviction counsel's

ineffective representation of Group.

Professionally reasonable post-conviction

counsel would have supported this claim with evidence de hors the trial record.

The way post-Group's counsel raised this claim doomed it to certain failure in light

of established Ohio procedural law.

Ohio law was clear when post-conviction counsel filed Group's amended

petition. A claim that can be fully litigated on the trial record must be raised on

direct appeal. See State v. Ishmail, 423 N.E.2d 1068, 1070 (Ohio 1981); State v.

Perry, 226 N.E.2d 104, 105-06, syl. if 7 (Ohio 1967). To surmount the application

of res judicata to this claim, it was necessary for post-conviction counsel to attach

supporting evidence beyond the trial record when the petition was filed. See State

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v. Calhoun, 714 N.E.2d 905, 910 (Ohio 1999) (quoting State v. Jackson, 413

N.E.2d 819, 823 (Ohio 1980); State v. Lentz, 639 N.E.2d 784, 786 (Ohio 1994)

(Quoting State v. Cole, 443 N.E.2d 169, syl. (Ohio 1982).

The failure of post-conviction counsel to plead this claim-without

appending the necessary evidentiary support-was professionally unreasonable

given the well-established state rules mandating such evidentiary support. See

Calhoun, 714 N.E.2d at 910. Indeed, the relevant Ohio statute provides: "the court

shall determine whether there are substantive grounds for relief. In making such a

determination, the court shall consider [inter alia] ... the supporting affidavits, and

the documentary evidence .... " O.R.C. § 2953.21(C). Ohio law makes it clear that

a defendant has not even pleaded a "substantive ground[] for relief' unless his

claim is supported by evidence beyond the trial record such as "affidavits" and

"documentary evidence." See id.

Further, the defendant may not meet his initial pleading burden by simply

attaching any affidavits or documentary evidence. For example, even with

supporting affidavits, the trial court may dismiss the defendant's petition, without a

hearing, if it finds that the defendant's supporting affidavits were not credible.

Calhoun, 714 N.E.2d at 911-12. In other words, without cogent evidence beyond

the trial record, the defendant has not even pleaded a "substantive ground[] for

relief" under state law. See, O.R.C. § 2953.2l(C).

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Importantly, the Ohio Supreme Court has recognized in several cases that

some Strickland claims cannot be litigated on direct appeal if the claim depends on

evidence beyond the trial record to demonstrate prejudice for an ineffective

counsel claim. State v. Kirkland, 15 N.E.3d 818, 830 (Ohio 2014); State v.

Mammone, 13 N.E.3d 1051, 1087 (Ohio 2014); State v. Madrigal, 721 N.E.2d 52,

65 (Ohio 2000); State v. Keith, 684 N.E.2d 47, 67 (Ohio 1997) (Citation omitted).

For two reasons, those Ohio Supreme Court decisions are significant to this

procedural default discussion. First, those decisions make clear that some

Strickland claims cannot be litigated on direct appeal in the Ohio courts. Some

ineffective counsel claims can only be fully litigated in the Ohio courts on postconviction review by res01i to evidence beyond the trial record. Id.

As such,

Group had to raise this particular claim on post-conviction review-with cogent

evidence de hors the appellate record-and not on direct appeal.

Second, this Court has found, in several cases, that the Ohio courts

misapplied their own res judicata rule to cases where the habeas petitioner could

not fully litigate his Strickland claim on the trial record, and the habeas petitioner

had to resort to evidence beyond the trial record to prove his claim. Richey v.

Bradshaw, 489 F.3d 344, 360 (6th Cir. 2007); White v. Mitchell, 431F.3d517, 527

(6th Cir. 2005); Hill v. Mitchell, 400 F.3d 308, 314 (6th 2005); Greer v. Mitchell,

264 F.3d 663, 675 (6th Cir. 2001). In those cases, this Comi found the state's

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application of Ohio's res judicata rule to the respective claims was inappropriate

and it reviewed them de nova. Those cases provide strong support for the

proposition that the rule in Martinez and Trevino applies here.

In McGuire v. Warden, Chillicothe Correctional Institution, 738 F.3d 741,

743-44 (6th Cir. 2013), this Court examined the principles of Martinez and Trevino

in the context of deciding whether those cases provided a ground to support the

habeas petitioner's motion for relief under Rule 60(b)(6). The issue presented in

McGuire was whether Martinez and Trevino, as intervening law, created an

"extraordinary" circumstance to warrant relief under Rule 60(b)(6). McGuire, 73 8

F.3d. at 749-50. This court acknowledged that it had previously found the Martinez

exception inapplicable to Ohio cases "because Ohio permits ineffective assistance

of counsel claims to be made on direct appeal, [Moore v. Mitchell], 708 F.3d 760,

785 (6th Cir. 2013), but that decision was issued before Trevino." McGuire, 738

F.3d at 749. Following McGuire, it is an open question in this Court whether the

Trevino exception to default applies to an Ohio habeas petitioner's case. See id. at

751 ("Third, while we need not determine whether Trevino applies to Ohio cases, it

is not obvious that Trevino applies here."); Moreland v. Robinson, 813 F .3d 315,

327 (2016) (Citing Morris v. Carpenter, 802 F.3d 825, 844 (6111 Cir. 2015)). That

open question is now ripe for review in Group's appeal.

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Application of Slack standard to Trevino argument.

The state court's application of the res judicata rule in this case is debatable

among reasonable jurists in view of all the above-cited Ohio Supreme Court cases

declining to review underdeveloped Strickland claims on direct appeal. See

Madrigal, 721 N.E.2d at 65; Keith, 684 N.E.2d at 67 (citing Scott, 578 N.E.2d at

844). Further, it is debatable among reasonable jurists whether the district court's

procedural ruling is correct in light of this Court's cases declining to honor the

state's court's application of res judicata to cases in which the habeas petitioner

had to depend on evidence outside the record to fully develop his claim. See

Richey, 489 F.3d at 360; Hill, 400 F.3d at 314; Morris, 802 F.3d at 844 (Martinez

inapplicable to claims "fully adjudicated on the merits" in the state courts). Put

another way, it is debatable whether Group's Strickland claim is defaulted in light

of Ohio's system of review and the rules established under Martinez and Trevino.

By the "operation and design" of Ohio's system, collateral review was

Group's only "meaningful opportunity to raise [this] ineffective assistance of trial

counsel" claim. See Trevino,

U.S. at _, 133 S. Ct. at 1921. Post-conviction

counsel failed to follow the relevant state law, and thus deprived Group of any

meaningful opportunity to litigate this Sixth Amendment claim.

A policy concern underlying the Martinez decision is germane to this appeal.

In Martinez, Supreme Court recognized the "cause · and prejudice" default

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exception to ameliorate the harsh outcome of having a habeas petitioner forfeit any

merit review of his constitutional claim. See Martinez, 566 U.S. at_, 132 S. Ct. at

1316. Due to post-conviction counsel's ineffectiveness, the trial court found that

Group's Sixth Amendment claim was procedurally barred. Doc.#: 21-8, PagelD #:

2475. The Ohio Court of Appeals followed suit, depriving Group of any merit

review of his Strickland claim in the Ohio courts. Doc.#: 21-9, PageID #: 2828. In

this circumstance, Group may avail himself of the "cause and prejudice" default

exception to avoid losing any merit review of his Sixth Amendment claim. See

Martinez, 566 U.S. at_, 132 S. Ct. at 1316.

Reasonable jurists could debate whether Group demonstrates "cause and

prejudice" to excuse the default of this claim based on post-conviction counsel's

professionally unreasonable failure to present his Strickland claim to the trial court

as a valid post-conviction claim. See, Martinez, 566 U.S. at_, 132 S. Ct. at 1320;

Trevino,_ U.S. at_, 133 S. Ct. at 1921. Once post-conviction counsel accepted

the appointment to represent Group, counsel had a duty to know the relevant

procedural law regarding the pleading requirements that would distinguish a

"substantive ground for relief' from a legally feckless allegation based solely on

the record. See O.R.C. § 2953.21(C); Strickland, 466 U.S. at 688 (counsel has duty

"to bring to bear such skill and knowledge" to make the proceeding "a reliable

adversarial testing process").

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Post-conviction counsel ineffectively pleaded this claim because counsel

was ignorant of Ohio procedural law or counsel unreasonably failed to comply

with that law despite having some awareness of it. See Gojf v. Bagley, 601 F.3d

445, 464 (6th Cir. 2010); Bedford v. Collins, 567 F.3d 225, 237 (6th Cir. 2009).

Counsel's performance in litigating this claim was deficient because counsel was

ignorant of or disregarded the relevant Ohio law.

Group was prejudiced because he had a substantial Sixth Amendment claim

that was deemed procedurally barred as the result of post-conviction counsel's

failure to plead a legally valid post-conviction claim. When properly supported

with evidence beyond the trial record, Group's underlying ineffective trial counsel

claim is "substantial". See Trevino,

iii.

U.S. at

, 133 S. Ct. at 1918.

Group's underlying claim is substantial.

As the surviving witness, Sandra Lozier's testimony was the lynchpin to the

state's case against Group. Effective cross-examination of her was necessary to

effective representation by trial counsel. But trial counsel failed to use professional

skill and judgment in cross-examining Lozier. See Strickland, 466 U.S. at 688.

Counsel should have impeached her testimony by exploiting important

inconsistencies between her descriptions of the assailant and Group.

For starters, the Supreme Court has made clear that eyewitness

identifications are "peculiarly riddled with innumerable dangers and variable

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factors which might seriously, even crucially, derogate from a fair trial." United

States v. Wade, 388 U.S. 218, 228 (1967); see id at 235 (noting "dangers inherent

with eyewitness identifications[]"); Dennis v. Sec Y. Penn. Dept. Corrections,

_F.3d. _, 2016 WL 4440925 *39-54 (3rd Cir. 8/23/16, en bane) (McKee, C.J.,

concurring). Following the Supreme Court's guidance, see id., this Court has also

explained "eyewitness misidentification accounts for more false convictions in the

United States than any other factor." Ferensic v. Birkett, 501 F.3d 469, 478 (6th

Cir. 2007); see id. at 482 (quoting Watkins v. Sowders, 449 U.S. 341, 352 (1981).

Although Lozier's identification of Group was compelling, it could have been

impeached by professionally competent counsel.

Lozier testified the assailant was about the same height as her husband,

Robert, but thinner. The coroner's examination done on January 19, 1997, put

Robert at 72" tall with an estimated weight of 175 pounds. Doc. #: 16-1. The

hand-written police report and typed police report note that Sandra Lozier

described her assailant as thin with blond wavy hair. Doc. #: 21-6, PageID #:

2254; Doc.#: 16-2. A police report from January 31, 1997, put Group's height as

6'1" and his weight at 190 pounds. Doc. #: 16-3. An earlier police report from

when Group was age 18 states he was 6' tall, 185 pounds, had a "stocky" build, and

had red hair. Doc. #:16-4.

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Some reports are consistent with Lozier's testimony that Robert and the

assailant were about the same height. Yet Lozier's testimony was materially

different from reports in other respects. At 190 pounds, Group was not thinner than

Robert who was estimated to weigh 175 pounds. At 190 pounds, Group was not

even "thin." In fact, Group had a stocky build according to a 1983 police record,

and in 1997, he was heavier than he was in 1983. Unlike the assailant, Group did

not have blond wavy hair because his hair was red. Doc. #: 16-4.

Trial counsel failed to point out several other inconsistencies. Lozier

testified her assailant's height was similar to Robert's (taller than average at 6').

Trial counsel asked Lozier if she recalled telling the detective that her assailant was

5'9" (average height). Lozier said she did not recall saying that, and trial counsel

just let that answer stand without any challenge. Trial counsel thus failed to

impeach Sandra Lozier with an available police report in which Lozier said her

assailant was 5'9" to 5'10". Doc#: 21-6, PageID #: 2254.

Trial counsel could have informed the jury that Lozier's description had

evolved. The January 31, 1997, police report puts Robert's weight at 200 pounds,

and that report was prepared twelve days after the coroner's examination on

January 19, 1997, the day after Robert died. Compare Doc. #: 16-1 with Doc. #:

16-3.

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Trial counsel further failed to impeach Lozier's testimony as to whether

she lost consciousness at the Downtown Bar. The medical records state Lozier did

not lose consciousness. Doc.#: 16-5. Nor did trial counsel impeach Lozier's claim

she did not know Group's name before the crimes. Trial counsel should have

impeached Lozier's testimony with a photograph depicting Group in his company

shirt because his name was visible on the front of that shirt.

Doc. #: 21-6,

PageID #: 2263. Group was the regular Ohio Wine delivery person for the

Downtown Bar and Sandra Lozier saw him on several occasions. Even a negative

answer from Lozier could have left the jury with questions about her attentiveness

and ability to recall infonnation after sustaining head trauma.

A competent defense required trial counsel to confront Lozier and poke holes

in her story where counsel was able to do so. Lozier suffered a gunshot wound to

her head. Her memory certainly could have been affected by the trauma she

suffered. She testified Group had been to the Downtown Bar on the Saturday

preceding the crimes. Doc. #: 22-4, PagelD #: 6026. Trial counsel needed to

challenge Lozier's recall of events in order to create reasonable doubt that she may

have confused the days when Group was at the Downtown Bar.

Trial counsel was deficient. Rather than effectively cross-examining Lozier

with readily available documents, counsel instead called her motive into question

by delving into her post-crime, civil suit against Group. Doc. 22-4, PageID #:

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6079-80. The apparent suggestion was that Lozier might identify Group for

pecuniary gain. This was folly.

Sandra Lozier was a sympathetic witness who had suffered a tragic loss and

much hardship. Trial counsel's questions about her lawsuit probably alienated the

jurors. And the prosecutor saw no need to redirect Lozier's testimony because trial

counsel's cross-examination was so ineffectual; and likely counter-productive

because of the inquiry into the civil lawsuit.

Group was prejudiced because an effective challenge to Lozier's

identification was there to be made.

Trial counsel missed the opportunity to

confront Lozier about: (1) the differences between her description of the shooter's

thin build versus Group's stocky build, (2) the differences between her testimony

that Group was thinner than Robert Lozier, (3) the differences between her

description of the assailant's blond, wavy hair versus Group's red hair, (4) the

differences between her description of a tall man versus her description of a man

of average height, (5) the differences between her losing consciousness versus her

staying awake, and (6) Lozier did not recall Group's name even though it was on his

shirt when he made deliveries to her bar. And, as discussed above, trial counsel could have

fiuther undermined her credibility by highlighting discrepancies between her testimony and

Datko's about the money bags. (See section LA, above.) The cumulative weight of trial

counsel's error and omissions calls into question Lozier's ability to recall facts

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after sustaining a serious head trauma. Trial counsel squandered the opportunity to

effectively confront Sandra Lozier, the state's key witness.

It is certainly debatable among reasonable jurists whether Group can

demonstrate "cause and prejudice" resulting from the ineffective assistance of

post-conviction counsel to excuse the Ohio Court of Appeals' application of res

judicata. If the procedural bar imposed by the Ohio Court of Appeals is

inadequate, moreover, this Court would be free to reach the merits of this

Strickland claim with de nova review. See Trevino, _U.S. at_, 133 S. Ct. at

1921. And because Group's Strickland claim is "substantial" under Trevino, it is

necessarily "valid" under the less-exacting standard in Slack. See Slack, 529 U.S.

at 484. After considering the many errors and omissions in trial counsel's

confrontation of Lozier, reasonable jurists would find it debatable as to whether

Group's Strickland claim was "valid". See id.

B. It's debatable if Group's Second Ground is procedurally defaulted.

In Group's Second Ground, he asserted an ineffective counsel claim based

on trial counsel's professionally unreasonable presentation of Group's alibi

defense.

Doc. #: 16, PageID #: 115.

The district court denied this claim as

procedurally defaulted on the basis of Ohio's res judicata rule. Doc. #: 54, PageID

#: 8796 (Citing Doc. #: 49, PageID #: 8742-44). Reasonable jurists could debate,

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however, whether that procedural bar was inadequate, thereby permitting de nova

review of Group's Strickland claim on the merits. See Slack, 529 U.S. at 484.

i.

Group's post-conviction evidence and state court review.

On post-conviction review, Group alleged that trial counsel failed to

competently prepare for and present the testimony offered in support of his

defense. See Doc.#: 21-9, PageID #: 2836. In support of this claim, Group relied

on an affidavit from his mother, Ruth Group. Doc. #: 21-6, PageID #: 2259-62.

Ruth averred, "the lawyers did not pinpoint the time that my son was home

[on the morning the crime was committed], despite my having informed [trial

counsel's] investigators of those facts." Id. at PageID #: 2259. Ruth continued,

"[o]n two occasions during the preparation of the case, witness preparation

sessions were scheduled. The first was held in the basement of a McDonald's

restaurant in Canfield, and the second was held at the hotel in which the lawyers,

who are from out of town, were staying." Id. at PageID #: 2260.

"The 'witness preparation' sessions were more like social gatherings than

trial preparation sessions. Neither I nor any of the witnesses whom I was able to

observe were prepared by sitting us down and asking questions that we might

expect from my son's lawyers and also from the prosecutors. Instead, there was a

general group discussion with refreshments being served." Id.

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Group's claim was also supported by his own affidavit in support of this

claim. Doc.#: 21-6, PageID #: 2239-45. He averred: "During the pretrial portions

of my case, the defense lawyers failed to prepare me to testify on the witness

stand." Id. at PageID #: 2243. He further averred: "During the preparation and trial

of my case, one of my lawyers, Andrew Love, kept calling me Fred, and he called

other people by the wrong name as well. The trial record reflects his lack of

preparedness to vigorously defend my case." Id. at PageID #: 2244.

The Ohio Court of Appeals denied this claim on the procedural ground of

res judicata, adopting the trial court's finding that this claim was not supported by

"cogent evidence de hors the record." Doc. #: 21-9, PageID #: 2836. The court

found Group's "alibi defense was addressed by the [Ohio] Supreme Court on direct

appeal, and that Court concluded that such defense did not present an exceptional

case to outweigh the evidence of guilt. ... Thus, even assuming that trial counsel's

preparation of the alibi witnesses for trial was somehow lacking, Group cannot

demonstrate prejudice." Id. The Ohio Supreme Court declined to accept

jurisdiction over Scott's post-conviction appeal. Doc#: 21-10, PageID #: 3090.

An Ohio post-conviction court may assess an affidavit at face value to

determine if it supplies a sufficient level of cogency or credibility to supp

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