Petition for Writ of Certiorari — Walter Raglin, Petitioner v. Tim Shoop, Warden

CAPITAL CASE

No. _______

October Term, 2022

IN THE SUPREME COURT OF THE UNITED STATES

_________

WALTER RAGLIN,

v.

Petitioner,

TIM SHOOP, WARDEN,

Respondent.

______________________________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

______________________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________________________

November 21, 2022

DEBORAH L. WILLIAMS

Federal Public Defender

by:

ALLEN L. BOHNERT

(Supreme Court Bar No. 280600)

*Counsel of Record

Assistant Federal Public Defender

Jacob A. Cairns

(Supreme Court Bar No. 267790)

Assistant Federal Public Defender

Office of the Federal Public Defender

for the Southern District of Ohio

Capital Habeas Unit

10 W. Broad Street, Suite 1020

Columbus, Ohio 43215

(614) 469-4116

(614) 469-2999 (Fax)

allen_bohnert@fd.org

jacob_cairns@fd.org

Counsel for Petitioner Walter Raglin

CAPITAL CASE – NO EXECUTION DATE

QUESTIONS PRESENTED

The Questions Presented are as follows:

1.

Whether a capital defendant is deprived of the effective assistance of trial

counsel when his lawyers repeatedly concede guilt of aggravated murder during voir

dire and opening arguments, and then ask the jury to acquit the defendant of

aggravated murder during culpability phase closing arguments.

2.

Whether Ohio’s res judicata doctrine is an adequate and independent state

procedural bar as applied to claims of ineffective assistance of trial counsel.

ii

PARTIES TO THE PROCEEDINGS

Petitioner, Walter Raglin, a death-sentenced Ohio prisoner, was the

petitioner-appellant in the United States Court of Appeals for the Sixth Circuit.

Respondent, Warden Tim Shoop, was the respondent-appellee in the United

States Court of Appeals for the Sixth Circuit.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......................................................................................... ii

PARTIES TO THE PROCEEDINGS .......................................................................... iii

TABLE OF CONTENTS .............................................................................................. iv

TABLE OF AUTHORITIES .................................... Error! Bookmark not defined.

PETITION FOR WRIT OF CERTIORARI .................................................................. 1

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

JURISDICTION............................................................................................................ 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...................... 3

INTRODUCTION ......................................................................................................... 4

STATEMENT OF THE CASE...................................................................................... 5

REASONS FOR GRANTING THE PETITION ......................................................... 10

I.

This Court should grant certiorari to provide further guidance

on the Sixth Amendment’s requirements in cases where trial

counsel concedes to the jury that the defendant is guilty of a

capital offense ........................................................................................ 10

II.

This Court should grant certiorari and hold that Ohio’s res

judicata doctrine is not an adequate and independent state

procedural bar as applied to claims of ineffective assistance of

trial counsel ........................................................................................... 14

CONCLUSION............................................................................................................ 18

APPENDIX:

APPENDIX A: Opinion, United State Court of Appeals for the Sixth

Circuit, Raglin v. Shoop, No. 19-3361, 2022 WL 1773719 (6th Cir. Jun. 1,

2022) ............................................................................................................................. 1a

APPENDIX B: Opinion & Order, United States District Court for the

Southern District of Ohio, Raglin v. Mitchell, No. 1:00-cv-767, 2018 WL

1417325 (S.D. Ohio Mar. 22, 2018) ........................................................................... 15a

APPENDIX C: Opinion & Order, United States District Court for the

Southern District of Ohio, Raglin v. Mitchell, No. 1:00-cv-767, 2013 WL

5468227 (S.D. Ohio Sep. 29, 2013) ............................................................................ 19a

iv

APPENDIX D: Amended Supplemental Report and Recommendations,

United States District Court for the Southern District of Ohio, Raglin v.

Mitchell, No. 1:00-cv-767, 2006 WL 2711674 (S.D. Ohio Jun. 29, 2006) ................. 80a

APPENDIX E: Report and Recommendations, United States District

Court for the Southern District of Ohio, Raglin v. Mitchell, No. 1:00-cv767, 2006 WL 7136085 (S.D. Ohio Feb. 2, 2006) .................................................... 101a

APPENDIX F: Opinion, Supreme Court of Ohio, State v. Raglin, 699

N.E.2d 482 (Ohio 1998) ........................................................................................... 160a

APPENDIX G: Decision, Ohio Court of Appeals for the First District, State

v. Raglin, No. C-980425, 1999 WL 420063 (Ohio App. Jun. 25, 1999) .................. 178a

APPENDIX H: Findings of Fact, Conclusions of Law, and Entry

Dismissing Petition to Vacate, Court of Common Pleas, Hamilton County,

State v. Raglin, No. B-9600135, April 17, 1998 ...................................................... 190a

APPENDIX I: Order, United State Court of Appeals for the Sixth Circuit,

Raglin v. Shoop, No. 19-3361, June 30, 2022 ......................................................... 202a

v

TABLE OF AUTHORITIES

Page(s)

Cases

Buck v. Davis, 137 S. Ct. 759 (2017) ........................................................................... 14

C.f. Smith v. Robbins, 528 U.S. 259 (2000)................................................................. 17

Douglas v. Alabama, 380 US 415 (1965) .................................................................... 17

Fairchild v. Trammell, 784 F.3d 702 (10th Cir. 2015) ............................................... 17

Florida v. Nixon, 543 U.S. 175 (2004) ................................................................... 10, 11

Johnson v. Williams, 568 U.S. 289 (2013) .................................................................. 13

Lee v. Kemna, 534 U.S. 362 (2002) .............................................................................. 17

Massaro v. United States, 538 U.S. 500 (2003) ...................................................passim

McCoy v. Louisiana, 138 S. Ct. 1500 (2018) ......................................................... 10, 11

Raglin v. Mitchell, No. 1:00-cv-767, 2006 WL 2711674 (S.D. Ohio Jun.

29, 2006).................................................................................................................... 1

Raglin v. Mitchell, No. 1:00-cv-767, 2006 WL 7136085 (S.D. Ohio Feb.

2, 2006)...................................................................................................................... 1

Raglin v. Mitchell, No. 1:00-cv-767, 2013 WL 5468227 (S.D. Ohio Sep.

29, 2013).............................................................................................................. 1, 17

Raglin v. Mitchell, No. 1:00-cv-767, 2018 WL 1417325 (S.D. Ohio Mar.

22, 2018).................................................................................................................... 1

Raglin v. Shoop, No. 19-3361, 2022 WL 1773719 (6th Cir. Jun. 1, 2022) ......... 1, 9, 12

State v. Blanton, No. 2021-0172, Slip op. No. 2022-Ohio-3985, 2022

Ohio LEXIS 2326 .................................................................................................... 18

State v. Raglin, 699 N.E.2d 482 (Ohio 1998) ...................................................... 1, 6, 13

State v. Raglin, No. C-980425, 1999 WL 420063 (Ohio App. Jun. 25,

1999).......................................................................................................... 2, 9, 14, 15

Strickland v. Washington, 466 U.S. 668 (1984) .................................................... 10, 15

vi

Trevino v. Thaler, 569 U.S. 413 (2013) ................................................................. 17, 18

Ylst v. Nunnemaker, 501 US 797 (1991) ..................................................................... 13

Statutes

28 U.S.C. § 1291 ............................................................................................................. 2

28 U.S.C. § 2241(a) ........................................................................................................ 3

28 U.S.C. § 2253 ........................................................................................................... 14

28 U.S.C. § 2254(a) ........................................................................................................ 3

28 U.S.C. § 2254(d) ...................................................................................................... 13

Rules

Ohio Crim. R 33(B) ...................................................................................................... 18

S.Ct.R. 10(c) ............................................................................................................. 4, 10

Constitutional Provisions

U.S. Const. amend. V..................................................................................................... 3

U.S. Const. amend. VI ............................................................................................... 3, 4

U.S. Const. amend. XIV ................................................................................................. 3

vii

IN THE SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner Walter Raglin respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The Sixth Circuit’s opinion affirming the denial of Raglin’s petition for a writ

of habeas corpus is unpublished and is available at Raglin v. Shoop, No. 19-3361,

2022 WL 1773719 (6th Cir. Jun. 1, 2022). It is reproduced as Appendix A at A-1. Raglin’s

petition for rehearing en banc was denied without comment. The District Court’s

opinion dismissing Raglin’s petition is unpublished and available at Raglin v.

Mitchell, No. 1:00-cv-767, 2018 WL 1417325 (S.D. Ohio Mar. 22, 2018). It is

reproduced as Appendix B at 15a. The District Court’s opinion denying Raglin’s claim

of ineffective assistance of trial counsel is unpublished and available at Raglin v.

Mitchell, No. 1:00-cv-767, 2013 WL 5468227 (S.D. Ohio Sep. 29, 2013). It is

reproduced as Appendix C at 19a. The Magistrate Judge’s amended supplemental

report and recommendation is unpublished and available at Raglin v. Mitchell, No.

1:00-cv-767, 2006 WL 2711674 (S.D. Ohio Jun. 29, 2006). It is reproduced as

Appendix D at 80a. The Magistrate Judge’s initial report and recommendation is

unpublished and available at Raglin v. Mitchell, No. 1:00-cv-767, 2006 WL 7136085

(S.D. Ohio Feb. 2, 2006). It is reproduced as Appendix E at 101a.

The Supreme Court of Ohio’s opinion affirming Raglin’s convictions and

death sentence on direct review is published as State v. Raglin, 699 N.E.2d 482

1

(Ohio 1998). It is reproduced as Appendix F at 160a. The opinion of the Ohio Court

of Appeals affirming the dismissal of Raglin’s petition for post-conviction relief is

unpublished and available at State v. Raglin, No. C-980425, 1999 WL 420063 (Ohio

App. Jun. 25, 1999). It is reproduced as Appendix G at 178a. The opinion of the

Hamilton County Court of Common Pleas dismissing Raglin’s petition for postconviction relief is unpublished and is reproduced as Appendix H at 190a. The Sixth

Circuit’s order denying Raglin’s petition for rehearing and suggestion for rehearing

en banc is unpublished and is reproduced as Appendix I at 202a.

JURISDICTION

The Sixth Circuit’s judgment against Raglin was rendered on June 1, 2022.

Raglin filed a timely petition for rehearing and suggestion for rehearing en banc,

which was denied on June 30, 2022. On July 27, 2022, Justice Kavanaugh granted

Raglin’s unopposed application to extend the time for filing Raglin’s petition for a

writ of certiorari until November 27, 2022. This Court’s jurisdiction is timely

invoked under 28 U.S.C. § 1291

2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the following Amendments to the United States

Constitution:

A.

Sixth Amendment, which provides in relevant part:

“In all criminal prosecutions, the accused shall enjoy the right . . . to have the

assistance of counsel for his defense.”

B.

Fourteenth Amendment, which provides in relevant part:

“No state shall . . . deprive any person of life, liberty, or property, without due

process of law.”

C.

28 U.S.C. § 2241(a), which provides, in relevant part:

“Writs of habeas corpus may be granted by the Supreme Court, any justice

thereof, the district courts and any circuit judge within their respective

jurisdictions.”

D.

28 U.S.C. § 2254(a), which provides in relevant part:

“The Supreme Court, a Justice thereof, a circuit judge, or a district court

shall entertain an application for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States.”

3

INTRODUCTION

This case will provide the Court with a timely opportunity to consider two

“important question[s] of federal law that [have] not been, but should be, settled by

this Court[.]” S.Ct.R. 10(c). Walter Raglin was convicted of aggravated murder in

Ohio state court and sentenced to death. Raglin’s lawyers repeatedly conceded that

he was guilty of aggravated murder during voir dire and opening arguments at the

culpability phase of trial. During closing arguments at the culpability phase,

however, Raglin’s lawyers completely changed course and asked the jury to acquit

Raglin of aggravated murder. There is no conceivable explanation for this course of

action other than sheer incompetence. The Sixth Circuit nevertheless concluded

that Raglin’s trial lawyers did not perform deficiently. This Court should grant

certiorari to consider the requirements of the Sixth Amendment in these

circumstances.

Certiorari is also warranted to determine whether Ohio’s res judicata

doctrine is an adequate and independent state procedural bar as applied to claims

of ineffective assistance of trial counsel. The last reasoned state court decision in

Raglin’s case concluded that his claim of ineffective assistance of trial counsel was

barred by res judicata because it supposedly could have been fairly litigated on

direct review. In Massaro v. United States, 538 U.S. 500 (2003), however, this Court

rejected an identical procedural bar for claims of ineffective assistance of trial

counsel arising out of a federal prosecution. This Court should grant certiorari to

determine if the state court’s continued use of that rejected doctrine is an adequate

4

and independent state procedural bar as applied to claims of ineffective assistance

of trial counsel.

STATEMENT OF THE CASE

This is a case about whether it’s acceptable for a capital trial lawyer to

essentially admit their client’s guilt of aggravated murder during voir dire and

during the opening stages of trial, but then take the opposing position during

closing arguments by arguing for complete acquittal, thereby conceding guilt and

simultaneously undermining any and all credibility with the jury.

In the early morning hours of December 29, 1995, Walter Raglin, an 18-yearold boy who had endured a lifetime of wretched trauma that began before he was

born, robbed a prominent local musician in Cincinnati named Michael Bany, During

the robbery, the gun that Raglin pointed at Bany from at least three feet away

discharged, the bullet striking Bany in the neck. The gun introduced as evidence at

trial may not have been the gun used in the crime, and the gun that was

introduced was a cheap firearm, a Bryco Arms 38 pistol—a gun notorious for

shoddy manufacturing and having a hair-trigger that often resulted in

accidental discharges.

Testimony at trial established that if the bullet had impacted just millimeters

above or below where it did, Bany would have likely survived. But sadly the bullet

hit the precise spot to damage a blood vessel, and Bany died as a result of the

injuries he sustained. Under questioning from law enforcement, Raglin requested to

speak with an attorney, but when questioning resumed Raglin made clear to the

5

officers conducting the interrogation that he did not intend to kill Bany. As Raglin

explained, he simply panicked before the shot was fired, he’d never shot anyone else

before, he didn’t know exactly where the shot had struck Bany, he didn’t intend to

kill Bany, and that he wasn’t even aware that Bany had died until he saw it later on

the news.

Raglin’s lawyers moved to suppress Raglin’s confession, but the court denied

the motion. As a result, Raglin’s trial lawyers were aware that the jury would hear

Raglin’s assertions that he did not intend to kill Bany. Furthermore, a specific

intent to kill is an essential element of aggravated murder under Ohio law. State v.

Raglin, 699 N.E.2d 482, 492 (Ohio 1998).

Despite this knowledge, Raglin’s trial lawyers repeatedly conceded during

voir dire and opening arguments that Raglin was guilty of aggravated murder. For

example, at the outset of the proceedings, trial counsel told the entire venire “. . . I

would suggest to you is that it’s very likely that you that are picked as jurors will be

in a second phase, a mitigation phase.” While conducting individualized voir dire

with a juror who was eventually seated, counsel stated “rest assured I think that

there will be a second phase and that you’ll move on to the mitigation phase[.]”

Counsel told another juror who was later seated “[w]e will probably get to a second

phase in this trial” and that “once we get to the second phase that means you’ve

found Walter Raglin guilty of the crimes with which he’s charged.” Counsel told yet

another juror who was seated that “neither Mr. Keller or I or Walter Raglin are

here to lie to you. We feel that we will probably get to a second phase in this case

6

which is why we’re concentrating on that and on questions on that part.” Still

another seated juror was asked “And you understand we’ve been talking about the

fact that there are going to be actually two separate trials here?” Similarly, during

opening arguments at the culpability phase, counsel stated there was “no dispute

there was a murder” and that the culpability phase was “the first of presumably

two trials[.]”

But following the presentation of evidence at the culpability phase, trial

counsel completely reversed course. Instead of retaining any credibility and good

will with the jury they might have created by conceding Raglin’s guilt of aggravated

murder at the outset, they devoted their closing argument to asking the jury to

acquit Raglin of aggravated murder. Trial counsel urged the jury to believe Raglin’s

statements in his confession and conclude that Raglin did not act purposefully in

causing Bany’s death as required under Ohio law for an aggravated murder

conviction; counsel explained to the jury that “what I would suggest to you is that

Walter Raglin when he gave that taped statement was truthful” and “[w]hat I’m

suggesting to you is what Walter told them is truthful.” Trial counsel argued “if you

put together the pieces and the parts of this puzzle you find out that each and every

statement that Walter made in that taped statement which you will have an

opportunity to listen to is truthful. He told them that he never intended to kill

anyone.” Counsel complained that the prosecution was asking the jury to believe

everything in Raglin’s confession except Raglin’s assertion that he did not intend to

7

kill Bany, and expressly requested that the jury find Raglin not guilty of

aggravated murder:

What the officers and what the State of Ohio want you to

believe is that everything that was beneficial to the State

of Ohio was truthful, but when it came to the issue of I

panicked, I didn’t intend to kill him, now they want you to

turn around and say we’re not going to believe that. Well,

I’d suggest to you that you’re going to have to grapple

behind those doors what the purpose was. You’re going to

have to grapple with the facts and I challenge you to find

that anything that Walter said to the police was not

inconsistent [sic] with what their own criminal

investigation showed.

***

What I would suggest to you is that when you do that and

the Judge gives you the instructions you are going to be

hard pressed to find that there was a purpose to take the

life. And the facts are harsh and it would be an instance

where it’s so harsh, but you can’t convict him as presently

charged so you’d have to acquit him because he didn’t

purposely take the life of him. That’s what this is all

about.

***

What I would suggest to you, and you may think it’s

bizarre, that it’s ludicrous, that if you hold them to that

standard and you hold them to the standard of proving

purpose and you take that in light of what Walter said,

and he’s the only person that you have that testified in

that regard, his state of mind, what he was intending to

do, that based on those statements, his words, no one

else’s, that you would have to come back with a finding of

not guilty to the aggravated murder with the specification

as he’s expressly charged. Thank you.

Raglin’s ninth ground for relief in his state post-conviction petition alleged

that he had been deprived of the effective assistance of trial counsel when his

lawyers repeatedly conceded guilt of aggravated murder and then presented

8

conflicting arguments by arguing for an acquittal in their closing summation.

Raglin supported his post-conviction petition by, among other things, Raglin’s

affidavit in which he stated “[a]t no time did my trial lawyers obtain my consent to

concede my guilt to the jury or to the prospective jurors, nor did I agree to this

course of action.”

The Court of Common Pleas nevertheless dismissed Raglin’s claim as being

barred by res judicata, reasoning that it was based entirely on material within the

record. As Raglin explained in his state post-conviction petition, however, he

required “discovery under the Ohio Rules of Civil Procedure to fully develop and

pursue this claim.” The Ohio Court of Appeals nevertheless concluded that Raglin’s

claim was barred by res judicata and affirmed the dismissal. State v. Raglin, No. C980425, 1999 WL 420063, at *5 (Ohio App. Jun. 25, 1999). 1 The federal District

Court, on review in federal habeas corpus proceedings, concluded that Raglin’s

claim was procedurally defaulted, but the Sixth Circuit elected to overlook the

default and deny the claim on the merits. Raglin v. Shoop, No. 19-3361, 2022 WL

1773719, *3–4 (6th Cir. Jun. 1, 2022). Raglin now requests that this Court grant

certiorari to consider the questions Raglin presents.

1 The Ohio Court of Appeals’ opinion mistakenly states “In his ninth claim for relief,

Raglin contended that his trial counsel was ineffective because certain comments

made by him during the guilt and mitigation phases of the trial were in conflict.”

Raglin, 1999 WL 420063, at *5 (emphasis added). As already explained, the claim at

issue that Raglin raised in his state post-conviction related to counsel’s conduct

during voir dire and the culpability phase of trial.

9

REASONS FOR GRANTING THE PETITION

Certiorari should be granted because this case provides the Court with a

timely opportunity to consider two “important question[s] of federal law that [have]

not been, but should be, settled by this Court[.]” S.Ct.R. 10(c). First, certiorari

should be granted to give further consideration to the Sixth Amendment’s

requirements where trial counsel concedes to the jury that their client is guilty of a

capital offense. And second, this Court should also grant certiorari to determine

whether Ohio’s res judicata doctrine is an adequate and independent state

procedural bar as applied to claims of ineffective assistance of trial counsel. This

Court’s precedent establishes that Ohio’s res judicata doctrine is clearly not an

adequate and independent state procedural bar because its application fails to serve

any legitimate state interest. This Court should grant review accordingly.

I.

This Court should grant certiorari to provide further guidance on

the Sixth Amendment’s requirements in cases where trial counsel

concedes to the jury that the defendant is guilty of a capital offense

This Court has previously dealt with ineffective assistance of counsel claims

where trial counsel chose to concede that their client was guilty of a capital offense.

In Florida v. Nixon, 543 U.S. 175 (2004), this Court held that there is no

presumption of prejudice where trial counsel concedes guilt in the absence of either

the defendant’s express consent or objection; in such circumstances the traditional

standards applicable to claims of ineffective assistance of counsel under Strickland

v. Washington, 466 U.S. 668 (1984), are controlling. Nixon, 543 U.S. at 178-79. More

recently, the Court in McCoy v. Louisiana, 138 S. Ct. 1500 (2018), held that

10

conceding guilt over the defendant’s express objection is per se ineffective assistance

of trial counsel and a structural defect requiring automatic reversal. McCoy, 138 S.

Ct. at 1505, 1511.

Raglin’s case falls somewhere between Nixon and McCoy, and this Court

should grant certiorari to provide guidance to the lower state and federal courts

about how to properly address claims of this nature. Raglin explained in his state

court post-conviction affidavit that he never consented to trial counsel’s concession

of guilt, but he also made no claim that the concession was over his express

objections. Unlike Nixon, however, there is no indication in the record that Raglin’s

trial lawyers ever bothered to discuss with Raglin whether to strategically concede

his guilt of aggravated murder. See Nixon, 543 U.S. at 181–82. And Nixon makes

clear that “[d]efense counsel undoubtedly has a duty to discuss potential strategies

with the defendant.” Id. at 178. As previously noted, Raglin requested discovery in

his state post-conviction proceedings to develop the factual basis for his claim, but

the state courts refused to allow it. By the time Raglin deposed trial counsel in his

federal habeas corpus proceedings, they did not even recall conceding that Raglin

was guilty of aggravated murder, and were unable to offer a reasoned, strategic

justification for their actions.

11

The Sixth Circuit elected to bypass the procedural default inquiry and

rejected Raglin’s claim on the merits. Raglin, 2022 WL 1773719, at *3–4. The Sixth

Circuit’s analysis of the claim is deeply flawed, however:

This decision was obviously strategic, which means that

we strongly presume that it was reasonable. Strickland,

466 U.S. at 689. Raglin has not overcome that

presumption. His counsel knew that the jury would hear

the recording of Raglin himself saying that he had looked

Bany in the eye and then shot him at near point-blank

range. Hence counsel could reasonably conclude that the

defense would only lose credibility with the jury by

disputing the murder charge.

Raglin, 2022 WL 1773719, at *4.

Wholly absent from the Sixth Circuit’s analysis is any acknowledgment at all

that trial counsel did, in fact, dispute the aggravated murder charge after repeatedly

conceding to the jury that Raglin was guilty of it: counsel devoted their closing

argument at the culpability phase to asking the jury to acquit Raglin of aggravated

murder because he lacked the requisite intent under Ohio law. Thus, whatever

credibility counsel may achieved with the jury by conceding guilt at the outset was

completely squandered when counsel reversed course in closing arguments, asking

the jury to acquit Raglin of aggravated murder on the ground that the state failed to

prove beyond a reasonable doubt that Raglin had purposefully killed Bany. Placed

in the full context, trial counsel’s ineffective assistance becomes clear; the Sixth

Circuit’s reasoning unreasonably and erroneously considers only the guilt

concession, egregiously shorn from the critical context of counsel’s contradictory

arguments advanced during closing, and improperly considered in a vacuum.

12

Furthermore, the Sixth Circuit’s assertion that “counsel knew that the jury

would hear the recording of Raglin himself saying that he had looked Bany in the

eye and then shot him at near point-blank range” is an egregiously misleading

characterization of what Raglin actually said in his confession. As previously

explained, in his confession Raglin made clear that he simply panicked when he

fired the shot, he’d never shot anyone else before, he didn’t know exactly where the

shot had struck Bany, he didn’t intend to kill Bany, and that he wasn’t even aware

that Bany had died until he saw it later on the news. In addition, the Supreme

Court of Ohio found that the shot was fired not from “near point-blank range” as the

Sixth Circuit characterized it, but from at least three feet away. Raglin, 699 N.E.2d

at 486. In sum, the Sixth Circuit’s opinion rejecting Raglin’s claim completely

disregards the portions of the state court record that demonstrate trial counsel’s

ineffectiveness.

Furthermore, the Antiterrorism and Effective Death Penalty Act (AEDPA)

poses no bar to relief on Raglin’s claim. The last reasoned state court decision on

Raglin’s ground for relief dismissed the claim as procedurally defaulted without

reaching the merits, and as a result there is no state court merits ruling at issue.

See Ylst v. Nunnemaker, 501 US 797, 803 (1991). Because there is no state court

merits ruling to which the federal courts reviewing in habeas corpus must defer, the

restrictions on federal review in 28 U.S.C. § 2254(d) are inapplicable, and this

Court’s review is de novo. Johnson v. Williams, 568 U.S. 289, 302 (2013).

13

Accordingly, AEDPA will not preclude granting relief on Raglin’s claim. This Court

should grant certiorari.

II.

This Court should grant certiorari and hold that Ohio’s res judicata

doctrine is not an adequate and independent state procedural bar as

applied to claims of ineffective assistance of trial counsel

As previously explained, the Ohio Court of Appeals concluded that Raglin’s

claim was procedurally defaulted under Ohio’s res judicata doctrine. Raglin, 1999

WL 420063, at *5. Procedural default will pose no bar to this Court’s review of the

merits of Raglin’s claim, however, because it is clear that Ohio’s res judicata

doctrine is not an adequate and independent state procedural bar as applied to

claims of ineffective assistance of trial counsel. This Court should grant certiorari to

consider this issue, as well. 2

In Massaro v. United States, 538 U.S. 500 (2003), this Court rejected a

federal procedural bar that was essentially identical to Ohio’s res judicata doctrine,

at least in the context of claims of ineffective assistance of trial counsel. Specifically,

this Court rejected the Second Circuit’s rule that “when the defendant is

represented by new counsel on appeal and the ineffective-assistance claim is based

solely on the record made at trial, the claim must be raised on direct appeal; failure

2 The District Court and Sixth Circuit both refused to grant Raglin a certificate of

appealability (“COA”) on this particular issue, despite the fact that the question is

obviously debatable among jurists of reason. Nevertheless, the denial of a COA in

the lower courts poses no bar to this Court addressing the issue on the merits

should the Court elect to grant certiorari. Buck v. Davis, 137 S. Ct. 759, 774–75

(2017) (“With respect to this Court’s review, § 2253 does not limit the scope of our

consideration of the underlying merits, and at this juncture we think it proper to

meet the decision below and the arguments of the parties on their own terms.”).

14

to do so results in procedural default unless the petitioner shows cause and

prejudice.” Massaro, 538 U.S. at 503. In Raglin’s case, the Ohio Court of Appeals

followed the same rule that this Court rejected in Massaro: “An ineffectiveassistance-of-counsel claim, however, may be dismissed as res judicata where the

petitioner was represented by new counsel on direct appeal, that counsel failed to

raise the issue of trial counsel’s incompetence, and the issue could fairly have been

determined without evidence dehors the record.” Raglin, 1999 WL 420063, at *3

(citation omitted).

As this Court explained in detail in Massaro, the res judicata rule as applied

to ineffective-assistance-of-trial-counsel claims fails to serve any legitimate interest.

Massaro, 538 U.S. at 504–08. “When an ineffective-assistance claim is brought on

direct appeal, appellate counsel and the court must proceed on a trial record not

developed precisely for the object of litigating or preserving the claim and thus often

incomplete or inadequate for this purpose.” Id. at 504–05. “The evidence introduced

at trial . . . will be devoted to issues of guilt or innocence, and the resulting record in

many cases will not disclose the facts necessary to decide either prong of the

Strickland analysis.” Id. at 505.

This Court explained further that “[i]f the alleged error is one of commission,

the record may reflect the action taken by counsel but not the reasons for it.” Id.

“The appellate court may have no way of knowing whether a seemingly unusual or

misguided action by counsel had a sound strategic motive or was taken because the

counsel’s alternatives were even worse.” Id. “The trial record may contain no

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evidence of alleged errors of omission, much less the reasons underlying them. And

evidence of alleged conflicts of interest might be found only in attorney-client

correspondence or other documents that, in the typical criminal trial, are not

introduced.” Id. Each of these concerns are manifestly present in Raglin’s case.

This Court in Massaro continued: “The Second Circuit’s rule creates

inefficiencies for courts and counsel, both on direct appeal and in the collateral

proceeding.” Id. at 506. “Even meritorious claims would fail when brought on direct

appeal if the trial record were inadequate to support them.” Id. “Appellate courts

would waste time and resources attempting to address some claims that were

meritless and other claims that, though colorable, would be handled more efficiently

if addressed in the first instance by the district court on collateral review.” Id. at

506–07. “The most to be said for the rule in the Second Circuit is that it will speed

resolution of some ineffective-assistance claims. For the reasons discussed, however,

we think few such claims will be capable of resolution on direct appeal and thus few

will benefit from earlier resolution.” Id. at 507. The “rule, moreover, does not

produce the benefits of other rules requiring claims to be raised at the earliest

opportunity—such as the contemporaneous objection rule—because here, raising

the claim on direct appeal does not permit the trial court to avoid the potential error

in the first place.” Id. at 508. Once again, each of these concerns are present in the

Ohio courts’ treatment of Raglin’s ineffective-assistance claim.

Applying this Court’s Massaro reasoning to the facts in Raglin’s case makes

abundantly clear that Ohio’s res judicata doctrine fails to serve any legitimate state

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interest when applied to claims of ineffective assistance of counsel. State procedural

bars may not foreclose federal review if they fail to serve a legitimate state interest.

Douglas v. Alabama, 380 US 415, 422–23 (1965). Accordingly, Ohio’s res judicata

doctrine is not an adequate and independent state ground as applied to claims of

ineffective assistance of trial counsel.

The District Court found that Massaro was not a constitutional ruling that

was binding on the states. Raglin, 2013 WL 5468227, at *29–30. Consequently, the

District Court rejected, on that erroneous basis, Raglin’s argument that Ohio’s res

judicata rule was not an adequate and independent state ground as applied to

Raglin’s ineffective-assistance claim. But the adequate and independent state

ground doctrine questions whether a state procedural bar can foreclose review in

federal court, not whether a state is constitutionally obligated to adopt a particular

rule. See Lee v. Kemna, 534 U.S. 362, 375 (2002).

Ohio is free to come up with alternative procedures for adjudicating claims of

ineffective assistance of trial counsel, so long as the chosen procedure permits an

adequate inquiry into the petitioner’s allegations. C.f. Smith v. Robbins, 528 U.S.

259 (2000). If Ohio wanted to, it could require all claims of ineffective assistance of

trial counsel to be litigated on direct review; it would, however, need to allow the

constitutionally required analysis, such as by providing a meaningful opportunity to

expand the record in advance of the appeal with evidence to support the defendant’s

allegations. See Fairchild v. Trammell, 784 F.3d 702, 721–22 (10th Cir. 2015); see

also Trevino v. Thaler, 569 U.S. 413, 425 (2013) (explaining that a state fails to

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provide a meaningful opportunity to raise a claim of ineffective assistance of trial

counsel on direct appeal where there is not an adequate opportunity to expand the

record in support of the claim in advance of the appeal). 3 What Ohio cannot do is

foreclose the availability of federal habeas corpus review by forcing petitioners to

litigate their claims trapped within a framework that this Court has rejected as

being completely inadequate for ineffective assistance of trial counsel allegations. 4

This Court should grant certiorari and hold that Ohio’s res judicata doctrine is not

an adequate and independent state ground as applied to claims of ineffective

assistance of trial counsel.

CONCLUSION

This case, in which a young Black man with a background jam-packed with

trauma, abuse, and other compelling mitigation may have accidentally killed a

prominent white musician in Hamilton County, Ohio, hardly represents the worst of

the worst for which this Court and the United States Constitution reserve the

ultimate punishment. But Walter Raglin’s federal constitutional rights have been

3 Under Ohio Rule of Criminal Procedure 33(B), a motion for a new trial must be

filed within fourteen days of the verdict; this is even less time to expand the record

in advance of the direct appeal than what this Court found to be inadequate in

Trevino. See Trevino, 569 U.S. at 425 (finding that 30 days and 75 days after the

jury’s verdict was inadequate time to expand the record).

4 The Supreme Court of Ohio recently refused to modify state law to bring it in line

with this Court’s decision in Massaro, even while conceding that petitioners who

raise ineffective-assistance-of-counsel claims in direct appeal are frequently not

afforded an opportunity to have their claim “fully considered,” “meaningfully

adjudicated,” or “meaningfully reviewed.” State v. Blanton, No. 2021-0172, Slip op.

No. 2022-Ohio-3985, ¶¶ 66–67, 2022 Ohio LEXIS 2326.

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disappeared in a way that cries out for this Court’s intervention. First by counsel

who initially conceded to the jury, at the outset of trial, Raglin’s guilt of aggravated

murder, and then, during closing, took a mutually exclusive position by seeking full

acquittal. And second, by the Ohio state courts, which applied a state res judicata

procedural bar to deny adequate factual development in such a way that doomed

Raglin’s ineffective-assistance-of-counsel claim to fail. Then the Sixth Circuit

compounded the injustice when, addressing the merits of Raglin’s claim, that court

selectively omitted the entire context necessary to understand the claim, and used

that half-baked assessment to deny relief. This Court should grant certiorari with

respect to both questions presented in Raglin’s petition for a writ of certiorari, and

reverse the lower court’s ruling to protect Raglin’s federal constitutional rights.

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Respectfully submitted this 21st day of November,2022,

DEBORAH L. WILLIAMS

Federal Public Defender,

by:

L.

(Supreme Court Bar No. 280600)

*Counsel of Record

Assistant Federal Public Defender

e?

€,-:.r_s

JACOB A. CAIRNS

(Supreme Court Bar No. 267790)

Assistant Federal Public Defender

Office of the Federal Public Defender

for the Southern District of Ohio

Capital Habeas Unit

10 W. Broad Street, Suite 1020

Columbus, Ohio 43215

(614) 469-4116

(614) 469-2999 (Fax)

allen-bohnert@fd.org

jacob-cairns@fd.org

Counsel for Petitioner Walter Raglin'

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