Petition for Writ of Certiorari — Walter Raglin, Petitioner v. Tim Shoop, Warden
Supreme Court briefNov 21, 2022
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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
______________________________________________________________________________
APPENDIX TO 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
TABLE OF CONTENTS
Page
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
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
ii
APPENDIX A
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No. 19-3361
FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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WALTER RAGLIN,
Petitioner-Appellant,
v.
TIM SHOOP, Warden,
Respondent-Appellee.
Jun 01, 2022
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE SOUTHERN
DISTRICT OF OHIO
OPINION
Before: BOGGS, KETHLEDGE, and THAPAR, Circuit Judges.
KETHLEDGE, Circuit Judge. During an armed robbery, Walter Raglin pointed a gun at
Michael Bany, looked him in the eye, and shot him in the neck, killing him. An Ohio jury
convicted Raglin of aggravated murder and sentenced him to death. Ohio courts denied all of
Raglin’s challenges to his conviction and sentence. The district court likewise denied him habeas
relief. We affirm.
I.
Late one night in December 1995, Walter Raglin and Darnell Lowery walked the streets of
Cincinnati looking for someone to rob. Raglin carried a .380 caliber pistol. Lowery suggested
they “hit” a drug runner or taxicab; Raglin disagreed, saying they should target someone less
dangerous. Around 2 a.m., musician Michael Bany left a bar after his performance, walking from
the bar to the parking lot, his bass guitar in one hand and his equipment in the other. As he reached
his car, he set down his belongings, took out his keys, and began to unlock the car.
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A voice behind Bany demanded all his money. He turned around and saw Raglin pointing
a gun at him; Lowery stood watching nearby. Bany handed over the three $20 bills he had in his
wallet. Raglin decided he wanted to steal Bany’s car as well, but could not drive a stick shift—so
he repeatedly asked Bany whether the car was automatic or manual. Bany said nothing and turned
away from Raglin to pick up his equipment. As Bany turned back around, Raglin looked him in
the eye and then shot him. Raglin and Lowery fled to a nearby house, where Raglin wiped his
fingerprints off the gun and gave it to Lowery.
Five days later, an anonymous caller told Cincinnati police that Raglin had been involved
in Bany’s death. Police arrested Raglin, put him in an interview room, advised him of his Miranda
rights, and began asking him questions. Raglin initially denied any involvement in Bany’s killing.
During a break in the questioning—during which the officers had left the room—Raglin broke
down emotionally, called the officers back, and told them he had shot Bany. Raglin then repeated
his confession on tape, saying “I looked at ’im in his eye an’ he looked at me an’ then I jus’ shot
’im an’ I ran.”
A grand jury charged Raglin with aggravated murder with a death-penalty specification.
A jury convicted Raglin and recommended the death penalty, which the trial court imposed. The
Ohio Supreme Court affirmed Raglin’s conviction and sentence. Raglin then moved to reopen
that decision, arguing that his appellate counsel were ineffective. The Ohio Supreme Court
summarily denied that motion.
Raglin thereafter filed a petition for a writ of habeas corpus in federal district court. The
court stayed the case while Raglin pursued additional claims in state court; after those efforts
failed, the district court reopened the case and allowed Raglin to amend his petition. There the
case remained for another 13 years, as the district court denied Raglin’s petition, certified several
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questions therein for appeal, and denied Raglin’s request to amend his petition to include a
challenge to Ohio’s lethal-injection protocol. In March 2018, the court entered judgment for the
Warden, but overlooked Raglin’s request for a certificate of appealability as to the denial of his
method-of-execution claim. See In re Campbell, 874 F.3d 454, 461 (6th Cir. 2017); 28 U.S.C.
§ 2253(c). Raglin moved to alter or amend that judgment under Civil Rule 59(e), asking the court
for a decision as to that request. The district court granted that certificate in March 2019. This
appeal followed.
II.
A.
As an initial matter, the Warden argues that this appeal is untimely because Raglin filed it
in April 2019—over a year after the district court denied him leave to amend his petition and
entered judgment. Suffice it to say that we disagree: the district court’s order granting Raglin’s
Rule 59(e) motion afforded him another 30 days to file a notice of appeal, which Raglin timely
did. See Fed. R. App. P. 4(a)(4)(A)(iv).
B.
We review de novo the district court’s denial of Raglin’s habeas petition. See Cowan
v. Stovall, 645 F.3d 815, 818 (6th Cir. 2011). To obtain habeas relief, as relevant here, Raglin
must show that the state court decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1). For purposes of habeas review, a state court’s decision is “unreasonable”
only when it is “so obviously wrong that its error lies beyond any possibility for fairminded
disagreement.” Shinn v. Kayer, 141 S. Ct. 517, 523 (2020) (per curiam) (internal quotation marks
omitted).
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1.
Raglin’s first argument concerns his questioning by Cincinnati homicide detectives Bill
Couch and Dan Argo. Specifically, he argues that, after he asked to see a lawyer, the detectives
manipulated him to resume answering questions without one. See generally Michigan v. Harvey,
494 U.S. 344, 350 (1990).
The detectives questioned Raglin on the night of January 3, 1996, five days after the
murder. Initially the questioning was not recorded; later, as noted above, Raglin began to cry and
called the officers back from a break to confess that he had shot Bany. Shortly thereafter, at 10:57
p.m., the officers began a recorded session of questioning, first reading Raglin his rights and
expressly telling him that “[i]f you cannot afford a lawyer one will be appointed for you before
any questioning if you wish”; that “[i]f you decide to answer questions now without an attorney
present you still have the right . . . to stop answering at anytime until you talk to a lawyer”; and
that “[i]f you want a lawyer you’re allowed to have a lawyer at anytime that you want to.” Raglin
said, “can I jus’ talk to one? I mean just for a minute?” Couch answered, “We can attempt to get
a hold of an attorney, yes[,]” and assured Raglin that “it’s no trouble at all, Walter.” Raglin said,
“I jus’ wanna, yeah I wanted to talk to ‘im”; Couch promptly ended the questioning and turned off
the tape.
That was at 11:02 p.m. Three minutes later the officers turned the tape back on, explaining
that Raglin wanted to resume answering questions. Then the officers again went over Raglin’s
rights with him and told him that “he can call an attorney” and that “he does not have to talk to
us.” Raglin said he understood those rights, and said that “ya’al didn’ promise me nuttin’[,]” that
“[n]obody tricked me, nuttin’ like that[,]” and that “I don’ want no attorney.” Raglin then
proceeded to confess that he shot Bany.
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Raglin’s claim now is that—when Couch told Raglin that he could “call an attorney” and
when the officers apparently offered to provide him a phonebook—the officers implied that Raglin
himself would need to pay for the lawyer. But that argument cherry-picks a sentence or two from
the transcript and ignores the rest. The officers assured Raglin again and again that he could stop
answering questions and be provided with a lawyer anytime he liked; and Couch specifically told
him that “[i]f you cannot afford a lawyer one will be appointed for you[.]”
The Ohio Supreme Court looked at these same conversations and found “no evidence
whatsoever that police said or did anything” to coerce Raglin into resuming the interview. State
v. Raglin, 699 N.E.2d 482, 491 (Ohio 1998). That assessment of the record was reasonable, which
means Raglin is not entitled to relief on this claim.
2.
Raglin argues that his trial counsel and his appellate counsel were constitutionally
ineffective. To prevail on those claims, Raglin must show that his counsel’s performance was
constitutionally deficient and that “the deficient performance prejudiced the defense.” Strickland
v. Washington, 466 U.S. 668, 687 (1984). And as for the performance prong, “counsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. at 690.
a.
Raglin argues that his trial counsel was ineffective for several distinct reasons. We “cut to
the merits” of those claims, since the unavoidably convoluted analysis as to whether those claims
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are procedurally defaulted “adds nothing but complexity to the case.” Babick v. Berghuis,
620 F.3d 571, 576 (6th Cir. 2010).
(i)
By way of background, trials in capital cases are divided into a guilt phase and penalty
phase—the latter being where the jury hears aggravating and mitigating evidence and decides
whether to recommend a sentence of death. Here, the principal reason why Raglin thinks his trial
counsel was ineffective is that counsel largely conceded Raglin’s guilt of aggravated murder in
favor of a more vigorous defense in the penalty phase. We accept the premise of Raglin’s
argument: during voir dire, for instance, Raglin’s counsel told the venire that “basically . . . we
will get to the second phase in this case. We will get to the mitigation phase. Which will mean
that you will have already found Walter guilty of aggravated murder and aggravated robbery.”
And counsel chose not to have Raglin himself testify at trial or otherwise to present evidence that
he killed Bany accidentally.
But Raglin’s conclusion—that his counsel was ineffective—does not follow. Raglin
overlooks the difference between capital cases and other kinds of trials. The Supreme Court has
explained:
Although such a concession [i.e., of guilt] in a run-of-the-mine trial might present
a closer question, the gravity of the potential sentence in a capital trial and the
proceeding’s two-phase structure vitally affect counsel’s strategic calculus.
Attorneys representing capital defendants face daunting challenges in developing
trial strategies, not least because the defendant’s guilt is often clear. . . . Counsel
therefore may reasonably decide to focus on the trial’s penalty phase, at which time
counsel’s mission is to persuade the trier that his client’s life should be spared.
Florida v. Nixon, 543 U.S. 175, 190–91 (2004).
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That is what Raglin’s trial counsel did here. Indeed his counsel was candid with the venire
about it:
This involves an aggravated robbery and an aggravated murder during the course
of the robbery. And you’re going to hear testimony and part of that testimony will
be a statement that was given by Walter Raglin to the police. And we can’t dispute
that. So what I was trying to explain to you is, and there is a kind of method to my
madness, if you will, that I don’t believe I lost my way, but we weren’t going to try
to say something that was just absurd, you know, and where you may be more
offended, you know, after the fact and say, well, gosh, if you know all of these
things why in the world are you doing this. Because that can be offensive. Can
you see my point?
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.
Meanwhile, Raglin’s conduct was less egregious than the conduct in other cases where Ohio
prosecutors have sought the death penalty. See, e.g., In re Ohio Execution Protocol, 860 F.3d 881,
884 (6th Cir. 2017) (en banc). And Raglin was only 18 years old at the time of the offense, after
“an extremely difficult and troubled childhood.” Raglin, 699 N.E.2d at 497–98. His trial counsel
therefore could have “reasonably decide[d] to focus on the trial’s penalty phase[.]” Nixon,
543 U.S. at 191. Raglin has shown no basis for relief on this ground.
(ii)
Raglin’s remaining arguments concerning the effectiveness of his trial counsel are likewise
meritless. Raglin argues that counsel should have struck from the venire a juror who had seen
Bany perform on the night when Raglin later shot him. But that juror repeatedly and specifically
stated that she would be impartial in considering the evidence at trial. Counsel therefore was not
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ineffective in choosing not to strike her. See Allen v. Mitchell, 953 F.3d 858, 865 (6th Cir. 2020).
Nor has Raglin shown any prejudice from that decision. Nor, for some of the same reasons recited
above, do we think that the Constitution compelled Raglin’s counsel to retain a firearms expert for
trial. Nor has Raglin shown any prejudice from that decision. Raglin’s claim that his trial counsel
was constitutionally ineffective for failing to object to certain parts of the prosecution’s closing
argument is likewise meritless. Nor do we think that Raglin’s trial counsel performed deficiently
at the mitigation phase. The performance of Raglin’s trial counsel affords him no basis for relief
here.
b.
Raglin also argues that his appellate counsel was ineffective for failing to make all the
arguments (regarding the putative ineffectiveness of his trial counsel) that we just rejected above.
We reject this claim as well.
3.
Raglin argues that the trial court should have instructed the jury on the lesser-included
charge of involuntary manslaughter. In a capital case, a court must instruct the jury about a lesserincluded offense if the evidence leaves “some doubt” about an element of the capital offense. See
Beck v. Alabama, 447 U.S. 625, 637 (1980). In Ohio, a jury can convict a defendant of aggravated
murder only if the defendant acted with the “purpose to cause the death of another.” State
v. Jackson, 836 N.E.2d 1173, 1197 (Ohio 2005).
The Ohio Supreme Court rejected this argument on the ground that, “[u]nder any
reasonable view of the evidence, the killing of Bany was purposeful.” Raglin, 699 N.E.2d at 488.
We think that, on this record, a fairminded jurist could agree with that assessment.
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4.
Raglin argues that the prosecutors’ comments during closing arguments at both phases of
his trial violated due process. A prosecutor’s remarks violate due process only if they render the
trial “fundamentally unfair.” Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974). And during
closing argument a prosecutor may “argue the record, highlight any inconsistencies or
inadequacies of the defense, and forcefully assert reasonable inferences from the evidence.”
Cristini v. McKee, 526 F.3d 888, 901 (6th Cir. 2008).
Again we cut to the merits of this claim (as opposed to disputes as to which objections the
trial court did or did not sustain). Raglin focuses on several comments in particular. First, the
prosecutor told the jury that, when a person points a gun at another and demands all of the other
person’s money, “[t]he natural and reasonable inference from that is give me all your money or
I’ll kill you.” That was simply an argument about what a jury might reasonably infer from the
facts of the case, and thus does not amount to prosecutorial misconduct. See id. Second, the
prosecutor suggested that if Raglin had fired the gun accidentally, he would have said as much in
his recorded statement. That too was an argument about a reasonable inference from the other
evidence in the case. Raglin also complains about a number of other comments by the prosecutor;
but as to many of those comments, Raglin presents no developed argument; and the remaining
arguments he makes in this vein are likewise meritless.
5.
Raglin also challenges the district court’s dismissal of two of his claims as untimely. We
review that decision de novo. See Wooten v. Cauley, 677 F.3d 303, 306 (6th Cir. 2012).
Raglin did not assert these claims until he filed his first amended petition—which he
concedes made these claims facially untimely. See 28 U.S.C. § 2244(d). But Raglin contends that
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these claims “relate back” to his original habeas petition, which was timely. For claims to relate
back, however, they must share a “common core of operative facts” with a timely claim in the
original petition. Watkins v. Deangelo-Kipp, 854 F.3d 846, 850 (6th Cir. 2017). A new claim
meets that test when, for example, it arises from the same body “of facts supporting” a ground for
relief in the original petition and the petitioner seeks to refine their legal theory by way of
amendment. See Mayle v. Felix, 545 U.S. 644, 661 (2005). So too when a petitioner merely seeks
to add factual detail through an amended petition, such that the facts in the two documents differ
“not in kind, but in specificity.” Cowan, 645 F.3d at 819. But when the original petition does not
contain the “operative facts out of which the amended claim could also be deemed to have arisen,”
the new claim does not relate back. Hill v. Mitchell, 842 F.3d 910, 925 (6th Cir. 2016). Mere
factual overlap between old and new claims is therefore insufficient. See id.
Here, both of the untimely claims were based on police reports that two witnesses—
Natasha Lowery and Ronnell Mumphrey—had said that, on the night of the shooting, Raglin came
to Lowery’s sister’s apartment and was crying, vomiting, and asking whether the Lord would
forgive him. The first untimely claim was that Raglin’s trial counsel had rendered ineffective
assistance by failing to interview Lowery and Mumphrey and to present their testimony at trial.
As a basis for relation back, Raglin cites claims 3 and 23 of his original petition. Those claims
both concerned the prosecutor’s comments—in closing argument during the penalty phase—that
Raglin had been “bragging and laughing” after the murder. Claim 3 included allegations that
Raglin’s trial counsel rendered ineffective assistance when he failed to object to these comments
because facts about Raglin “bragging and laughing” after the murder were not in evidence. Claim
23 included allegations that the prosecutor engaged in misconduct when he made those same
comments because, in effect, he “asked the jury to speculate on facts not in evidence.” Those
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claims contained a “common core of operative facts” with each other, but they share no common
facts with the failure-to-investigate claim. Watkins, 854 F.3d at 850. Claims 3 and 23 thus do not
contain the “operative facts out of which the amended claim could also be deemed to have arisen.”
Hill, 842 F.3d at 925. Raglin counters that the new claim and the older ones all concern “the issue
of Raglin’s remorse.” Br. at 34. But a new claim must share a common core of operative facts—
not merely a common “issue” or theme—to relate back to an earlier claim. See Watkins, 854 F.3d
at 850.
The same analysis holds for the second untimely claim, which alleged that the prosecutor
knowingly made a false argument when he said Raglin was “bragging and laughing” after the
shooting. Lowery’s and Mumphrey’s statements were in the trial file; thus, Raglin argues, the
prosecutor knew that Raglin was in fact remorseful. As a basis for relation back, Raglin again
identifies claims 3 and 23 from the original petition, and argues that the old and new claims have
in common “that the prosecution had engaged in misconduct with respect to Raglin’s remorse for
Bany’s death.” Br. at 78. But the question is whether the new claim could have “arisen” out of
the facts in the original petition. Hill, 842 F.3d at 925. A showing that the prosecutor knowingly
made a false argument depends upon the statements by Lowery and Mumphrey, as well as the
prosecutor’s mental state, knowledge of those statements, and other contents of the trial file
(including an interview with an individual who stated that Raglin was in fact “laughing” and
“showing off” after the shooting). See Giglio v. United States, 405 U.S. 150, 153 (1972). None
of those alleged facts are recited in the original petition. Although the new claim has in common
with the old claims the prosecutor’s same statement, the similarity ends there; a mere factual point
in common between old and new claims is not enough for the new claim to relate back. See Hill,
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842 F.3d at 924. We therefore affirm the district court’s dismissal of Raglin’s new claims as
untimely.
6.
We also reject Raglin’s remaining claims—that the trial court’s jury instructions during the
guilt phase were improper, that the admission of testimony by rebuttal witnesses for the
prosecution denied Raglin a fair trial, and that “cumulative” error did the same—for substantially
the reasons stated by the district court. Indeed, we doubt that any reasonable jurist would debate
the district court’s denial of those claims—which means that Raglin likely should not have been
granted a certificate of appealability as to them. See Moody v. United States, 958 F.3d 485, 488
(6th Cir. 2020).
C.
Raglin challenges the district court’s denial of his motion to reopen discovery, which we
review for an abuse of discretion. See Cornwell v. Bradshaw, 559 F.3d 398, 410 (6th Cir. 2009).
A district court may permit discovery “if the petitioner presents specific allegations showing
reason to believe that the facts, if fully developed, may lead the district court to believe that federal
habeas relief is appropriate.” Johnson v. Mitchell, 585 F.3d 923, 934 (6th Cir. 2009) (quotation
marks omitted).
To prove that Raglin intended to fire the gun and kill Bany, the prosecution hired an expert
to examine Raglin’s gun. That expert testified that the gun lacked a hair trigger. Raglin now
asserts that his trial counsel never saw two statements that, in his view, suggest that the
prosecution’s expert examined the wrong gun—which in turn would leave open the possibility that
the murder weapon did have a hair trigger. Raglin thus argues that the actual gun and the witness
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statements could be material evidence that the state should have disclosed under Brady
v. Maryland, 373 U.S. 83 (1963).
Evidence is material “when there is a reasonable probability that, had the evidence been
disclosed, the result of the proceeding would have been different.” Smith v. Cain, 565 U.S. 73, 75
(2012) (cleaned up). Raglin does not meet that standard because his assertions regarding these
statements are speculative at best. One of the statements comes from a witness who saw someone
in the parking lot outside the bar that night put down a silver handgun, pick it back up, and take
off running, which matches the story Raglin told to police. The other statement is from a then
seventh-grader, who told police that Darnell Lowery gave him a gun after the murder. That
statement lines up with the testimony of a Cincinnati policeman at trial, who found a .380 revolver
that the youth had thrown aside while running from police. Raglin has not explained how these
statements establish a “reasonable probability” that the prosecution’s expert examined the wrong
gun. Nor is there reason to think such a mistake would have made a difference at trial. Raglin
never claimed to have shot Bany accidentally; instead, he repeatedly said that he looked Bany in
the eye and shot him. The district court did not abuse its discretion when it denied Raglin
additional discovery.
D.
Finally, Raglin argues that the district court should have granted him leave to amend his
petition to include a claim challenging the method of his execution. We review that denial for an
abuse of discretion. Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998).
Here, the district court applied In re Campbell, 874 F.3d 454 (6th Cir. 2017) (per curiam),
to hold that it could not hear Raglin’s proposed method-of-execution challenge on habeas review.
Raglin does not challenge the court’s application of Campbell; instead, he says that we should
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revisit Campbell after the Supreme Court’s decision in Bucklew v. Precythe, 139 S. Ct. 1112
(2019). But Bucklew did not decide what claims a petitioner can bring on habeas review. Indeed,
the Court’s only mention of habeas was a single statement: that, “if the relief sought in a 42 U.S.C.
§ 1983 action would foreclose the State from implementing the [inmate’s] sentence under present
law, then recharacterizing a complaint as an action for habeas corpus might be proper.” 139 S. Ct.
at 1128 (cleaned up). That dicta as to what the Court “might” do does not permit us to depart from
our precedent. The district court did not abuse its discretion when it denied Raglin leave to amend
his petition.
*
*
*
The district court’s judgment is affirmed.
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APPENDIX B
Case: 1:00-cv-00767-MRB-MRM Doc #: 295 Filed: 03/22/18 Page: 1 of 4 PAGEID #: 4148
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Walter Raglin,
Petitioner,
Case No.: 1:00-cv-767
v.
Judge Michael R. Barrett
Betty Mitchell, Warden
Respondent.
OPINION & ORDER
This capital habeas case is before the Court on the Magistrate Judge’s
November 13, 2017 Decision and Order Vacating Prior Decision and Denying Motion to
Amend. (Doc. 287). Petitioner filed objections to the Decision and Order (Doc. 289),
and Respondent filed a Response in Opposition to those objections (Doc. 291).
Following an order recommitting the matter, the Magistrate Judge entered his
December 29, 2017 Supplemental Opinion on Motion to Amend. (Doc. 292). Petitioner
filed objections to the Supplemental Opinion.
(Doc. 293), and Respondent filed a
Response in Opposition to those objections (Doc. 294).
This Court shall consider objections to a magistrate judge's order on a
nondispositive matter and “shall modify or set aside any portion of the magistrate
judge's order found to be clearly erroneous or contrary to law.” Fed. R. Civ. P. 72(a);
see also 28 U.S.C. § 636(b) (explaining that a judge of the court may reconsider any
pretrial ruling by the magistrate judge “where it has been shown that the magistrate
judge's order is clearly erroneous or contrary to law.”).
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In his November 13, 2017 Decision and Order (Doc. 287), the Magistrate Judge
sua sponte corrected a previous order pending on objections. The Magistrate Judge
concluded that in light of the Sixth Circuit's decision in In re Campbell, 874 F.3d 454 (6th
Cir. 2017), the Magistrate Judge's prior Decision and Order allowing Petitioner to file a
Third Amended Petition pleading lethal injection invalidity claims (Doc. 275) is clearly
mistaken as a matter of law and vacated that Order.
The December 29, 2017
Supplemental Opinion on Motion to Amend (Doc. 292) reaches the same conclusion.
The Magistrate Judge’s November 13, 2017 Decision and Order and December
29, 2017 Supplemental Opinion address two issues: (1) whether In re Campbell, 874
F.3d 454 (6th Cir. 2017), cert. den. sub nom. Campbell v. Jenkins, 199 L.Ed. 2d 350
(2017) bars lethal injection invalidity claims to be pleaded in habeas corpus cases; and
(2) whether Petitioner’s claim under Hurst v. Florida, 136 S. Ct. 616, 193 L. Ed. 2d 504
(2016) is barred by In re Coley, 871 F.3d 455 (6th Cir. 2017).
With regard to the first issue, this Court has already adopted the Magistrate
Judge’s analysis in dismissing similar claims in two other capital habeas cases.
McKnight v. Bobby, No. 2:09-cv-059, 2018 WL 524872, at *2 (S.D. Ohio Jan. 24, 2018);
Bays v. Warden, Ohio State Penitentiary, No. 3:08-cv-76, 2017 WL 6731493, *1 (S.D.
Ohio Dec. 29, 2017). The Court finds no reason for a different outcome in this case,
and concludes there is no error in the Magistrate Judge’s ruling.
As to the second issue, the Magistrate Judge explained that the analysis in
Teague v. Lane, 489 U.S. 288 (1989) governs whether Hurst applies retroactively. The
Magistrate Judge concluded that Hurst does not apply retroactively, and explains that
this conclusion is confirmed by In re Coley, 871 F.3d 455, 457 (6th Cir. 2017). The
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Magistrate Judge acknowledges that the main issue in Coley was whether another Ohio
death row inmate should be permitted to file second-or-successive habeas petition
raising a claim under Hurst -- an issue which is not present in this case because this is
Petitioner’s first habeas application.
However, the Magistrate Judge notes that in
denying the inmates application under 28 U.S.C. § 2244(b)(2)(A), the Sixth Circuit noted
that the Supreme Court had not made Hurst retroactive to cases on collateral review.
See In re Coley, 871 F.3d 455, 457 (6th Cir. 2017) (“But even if we assume that Hurst
announced ‘a new rule of constitutional law,’ the Supreme Court has not ‘made [Hurst]
retroactive to cases on collateral review.’”) (quoting Tyler v. Cain, 533 U.S. 656, 662-63,
121 S.Ct. 2478, 150 L.Ed.2d 632 (2001)). The Magistrate Judge also noted that this
conclusion was in keeping with other decisions within this district. See, e.g., Gapen v.
Robinson, No. 3:08-cv-280, 2017 WL 3524688, at *4 (S.D. Ohio Aug. 15, 2017)
(“Amendment would also be futile because Hurst does not apply retroactively to cases
on collateral review.”); Davis v. Bobby, No. 2:10-CV-107, 2017 WL 4277202, at *4 (S.D.
Ohio Sept. 25, 2017) (finding amendment based on Hurst would be futile). The Court
sees no error in the Magistrate Judge’s conclusion that Hurst does not apply
retroactively to cases on collateral review.
Based on the foregoing, Petitioner’s objections to the Magistrate Judge’s
November 13, 2017 Decision and Order Vacating Prior Decision and Denying Motion to
Amend (Doc. 287); and December 29, 2017 Supplemental Opinion on Motion to Amend
(Doc. 292) are OVERRULED. Accordingly, Petitioner is denied leave to add lethal
injection invalidity claims, but that denial is without prejudice to Petitioner pursuing them
in In re Ohio Execution Protocol Litig., Case No. 2:11-cv-1016, where he is a plaintiff.
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Based on this Court’s decision of September 29, 2013 (Doc. 198), this matter is
CLOSED and TERMINATED from the active docket of this Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
JUDGE MICHAEL R. BARRETT
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APPENDIX C
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Walter Raglin,
Petitioner,
Case No. 1:00cv767
v.
Judge Michael R. Barrett
Betty Mitchell,
Respondent.
ORDER & OPINION
This matter is before the Court upon a number of Report and Recommendations
(“R&Rs”) and a Decision of the Magistrate Judge. These documents can be grouped in
three categories.
The first category contains those documents related to the Magistrate Judge’s
R&R regarding Petitioner’s First Amended Petition.
(Doc. 89).
Petitioner filed
objections to that R&R (Doc. 95), and Respondent filed a Response to the Objections
(Doc. 98). The Magistrate Judge then entered an Amended Supplemental R&R. (Doc.
100). Petitioner filed objections to the Amended Supplemental R&R, and Respondent
filed a Response to the Objections (Doc. 102). Later, Petitioner was permitted to file
Supplemental Objections (Doc. 142), to which Respondent filed a Response (Doc. 145).
The second category contains documents related to the Magistrate Judge’s R&R
regarding Petitioner’s Certificate of Appealability.
(Doc. 169).
Petitioner filed
Objections. (Doc. 170). The Magistrate Judge then filed a Supplemental R&R. (Doc.
176). Petitioner filed Objections to the Supplemental R&R (Doc. 182), to which the
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Respondent filed a Response (Doc. 186).
The third category contains documents related to the Magistrate Judge’s
Decision and Order granting Petitioner’s Motion for Leave to File a Second Amended
Petition. (Doc. 177). This Order allows Petitioner to add new claims to his Petition in
which Petitioner argues that his execution under Ohio’s lethal injection protocol will
violate the Eighth and Fourteenth Amendment. Respondent filed Corrected Objections.
(Doc. 180). Petitioner filed a Response. (Doc. 185). The Warden then filed a Notice of
Supplemental Authority.
(Doc. 195).
This Court recommitted the matter to the
Magistrate Judge (Doc. 187), who then issued a Supplemental Opinion and
Recommendations (Doc. 188).
The Warden filed Objections to the Supplemental
Opinion and Recommendations (Doc. 191), to which Petitioner filed a Response (Doc.
192).
I.
BACKGROUND
Petitioner Walter Raglin was convicted in Hamilton County, Ohio, and sentenced
to death for the murder and robbery of Michael Bany. A more detailed description of the
factual background of this case has been covered elsewhere and for the sake of brevity
will not be repeated here.
Following the conclusion of his direct appeals and exhaustion of his state
avenues for post-conviction relief, Petitioner filed the instant petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
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II.
ANALYSIS
A. Standard of Review
If a party files timely objections to a magistrate judge’s report and
recommendation, the Court “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.”
28 U.S.C. § 636(b)(1)(C). With regard to orders on non-dispositive matters, Federal
Rule of Civil Procedure 72(a) provides that a district judge shall consider a party=s
objections to a magistrate=s order and Ashall modify or set aside any portion of the
magistrate=s order found to be clearly erroneous or contrary to law.@
The “clearly
erroneous” standard applies to the magistrate judge's factual findings and the “contrary
to law” standard applies to the legal conclusions. Sheppard v. Warden, Chillicothe
Corr., Inst., 1:12-CV-198, 2013 WL 146364, *5 (S.D. Ohio Jan. 14, 2013).
Legal
conclusions should be modified or set aside if they “contradict or ignore applicable
precepts of law, as found in the Constitution, statutes, or case precedent.” Gandee v.
Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992).
The Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214
(“AEDPA”) governs the standards or review for state court decisions. Petitioner filed his
Petition for Habeas Corpus (Doc. 14) on September 13, 2000, and therefore it is subject
to the Act’s provisions. The AEDPA provides that federal courts cannot grant a habeas
petition for any claim that the state court adjudicated on the merits unless the
adjudication: “(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 (2) resulted in a decision that was based upon
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an unreasonable determination of the facts in light of the evidence presented in the
state court proceeding.” 28 U.S.C. §2254(d); see also Miller v. Francis, 269 F.3d 609,
614 (6th Cir. 2001).
B. First Amended Petition
In his First Amended Petition, Petitioner raises thirty-eight grounds for relief. In
his R&R (Doc. 89) and Amended Supplemental R&R (Doc. 100), the Magistrate Judge
recommends dismissing all grounds for relief in Petitioner’s First Amended Petition. 1
Petitioner does not object to the Magistrate Judge’s R&R as to Grounds Three,
Five, Seven, Twelve, Thirteen, Fourteen, Fifteen, Sixteen, Eighteen, Nineteen, Twenty,
Twenty-One, Twenty-Two, Twenty-Five, Twenty-Seven, Twenty-Nine, and Thirty-Four.
Therefore, the Court will not discuss those grounds in detail here. The Grounds which
are at issue are as follows:
First Ground for Relief:
Walter Raglin was denied his right to the effective assistance of counsel at
the pretrial and trial phases of his capital trial in violation of the Fifth, Sixth,
Eighth, Ninth and Fourteenth Amendments.
...
B. Trial counsel was ineffective for failing to conduct voir dire in a manner
sufficient to choose a fair and impartial jury
...
4. Failure to adequately voir dire and remove Juror Veesart
1
The Magistrate Judge explained that in his First Amended Petition Petitioner
abandoned Claims A.1, A.2, A.3, A.4, B.1, B.2, B.3, and D.2.b from the First Ground for Relief,
Claims A, B, and C from the Second Ground for Relief and the Fifth, Seventh, Tenth, Eleventh,
Twentieth, Twenty-Second, Twenty-Fourth, Twenty-Sixth, Twenty-Eighth, Thirty-First, ThirtyThird, and Thirty-Fifth Grounds for Relief in their entirety. (Doc. 89, at 12-13). The Magistrate
Judge also explained that Petitioner added subpart D of the Second Ground for Relief and
Grounds for Relief Thirty-Seven and Thirty-Eight, but those newly-added claims were dismissed
as barred by the statute of limitations. (Id. at 13).
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C. Trial counsel was ineffective for repeatedly conceding Mr. Raglin’s guilt
and then after such concession presenting conflicting arguments to the
jury
1. Trial counsel’s concession of Mr. Raglin’s guilt
2. Conflicting arguments presented to the jury
D. Trial counsel was ineffective for failing to adequately present a defense,
including failing to support counsel’s request for a manslaughter
instruction with evidence sufficient to warrant the instruction, failing to
secure the assistance of experts, and failing to object to prosecutorial
misconduct.
1. Failure to put on evidence in support of manslaughter instruction
2. Failure to secure the assistance of experts
a. Firearms expert
...
3. Failure to object to prosecutorial misconduct
Second Ground for Relief:
Walter Raglin was denied his right to the effective assistance of counsel at
the mitigation phase of his capital trial in violation of the Fifth, Sixth,
Eighth, Ninth and Fourteenth Amendments.
...
D. Trial counsel failed to adequately investigate and present significant
evidence of remorse.
Third Ground for Relief:
Walter Raglin was denied his right to the effective assistance of counsel
under the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the
United States Constitution.
Fourth Ground for Relief:
Walter Raglin was denied his right to the effective assistance of counsel
on his direct appeals in violation of the Sixth and Fourteenth Amendments
to the United States Constitution.
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Sixth Ground for Relief:
Walter Raglin’s rights under the Fifth, Sixth and Fourteenth Amendments
to the United States Constitution were violated when the trial court failed
to suppress his statement made to members of the Cincinnati Police
Department on January 3, 1996, because his statement was made during
a custodial interrogation following an unfulfilled request for counsel.
Miranda v. Arizona, 384 U.S. 436 (1966); Edwards v. Arizona, 451 U.S.
477 (1981); Minnick v. Mississippi, 489 U.S. 146 (1990).
Eighth Ground for Relief:
Walter Raglin’s Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendment
Rights were violated when the judge refused to instruct the jury at the end
of the trial phase that it could find Mr. Raglin guilty of involuntary
manslaughter, a lesser included offense of aggravated murder.
Ninth Ground for Relief:
Walter Raglin’s Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendment
rights were violated when the judge erroneously instructed the jury at the
end of the trial phase on the issues of causation, forseeability [sic], intent,
and purpose.
Seventeenth Ground for Relief:
Walter Raglin’s Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment
rights were violated when the judge instructed the jury at the end of the
mitigation phase in such a manner that the jury could conclude that it had
to consider and reject a recommendation as to the imposition of death
before it could consider either life sentence option.
Twenty-Third Ground for Relief:
Walter Raglin was denied his constitutional rights to a fair and impartial
trial under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth
Amendments as a result of prosecutorial misconduct during both phases
of his capital proceedings.
Thirtieth Ground for Relief:
Walter Raglin was denied his constitutional rights under the Fifth, Sixth,
Seventh, Eighth, Ninth and Fourteenth Amendments during the mitigation
phase because the trial court permitted the prosecutor to introduce
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inadmissable rebuttal evidence that was unfairly prejudicial to Mr. Raglin’s
rights to a fair trial and impartial jury.
Thirty-Second Ground for Relief:
Walter Raglin’s rights as guaranteed by the Fifth, Sixth, Seventh, Eighth,
Ninth and Fourteenth Amendments were violated when the trial court
committed multiple errors during the pretrial, trial and mitigation phases of
his capital case.
Thirty-Sixth Ground for Relief:
Walter Raglin’s conviction and death sentence are invalid under the
federal constitutional guarantees of due process, equal protection, the
effective assistance of counsel, and a reliable sentence due to the
cumulative errors in the admission of evidence and instructions, and gross
misconduct of state officials in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.
Thirty-Seventh Ground for Relief:
Brady Claim
Thirty-Eighth Ground for Relief:
Giglio Claim
For the reasons that follow, the Court finds that Petitioner’s Objections to the
Magistrate Judge’s R&Rs regarding Petitioner’s First Amended Petition are not well
taken and are overruled.
1. First Ground for Relief
Petitioner argues that the Magistrate Judge erred in concluding that his claims of
ineffective assistance of counsel were procedurally defaulted.
In the Sixth Circuit, a four-part analysis is used to determine whether a claim has
been procedurally defaulted: (1) whether there is a state procedural rule that is
applicable to the petitioner's claim; (2) whether the petitioner failed to comply with that
rule; (3) whether the rule was actually enforced in the petitioner's case; and (4) whether
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the state procedural forfeiture is an adequate and independent state ground on which
the state can rely to foreclose review of a federal constitutional claim. Maupin v. Smith,
785 F.2d 135, 138 (6th Cir. 1986).
In applying this analysis, the Magistrate Judge explained that Petitioner’s claims
of ineffective assistance of counsel were not raised in the state courts until Petitioner
filed for post-conviction relief. The Magistrate Judge explained that the state courts
applied Ohio’s doctrine of res judicata, which barred consideration of the ineffective
assistance of counsel claims by the state courts because the claims could have been
raised on direct appeal. See State v. Cole, 443 N.E.2d 169 (1982) (syllabus) (“Where a
defendant, represented by new counsel upon direct appeal, fails to raise therein the
issue of competent trial counsel and said issue could fairly have been determined
without resort to evidence dehors the record, res judicata is a proper basis for
dismissing defendant's petition for postconviction relief.”). 2
The Magistrate Judge
concluded that Ohio’s doctrine of res judicata is an adequate and independent state
ground, and therefore the ineffective assistance of counsel claims were procedurally
defaulted.
In his Objections, Petitioner cites Greer v. Mitchell, 264 F.3d 663, 674-75 (6th
Cir. 2001), cert. denied, 535 U.S. 940 (2002), which states that “when the record
reveals that the state court's reliance on its own rule of procedural default is misplaced,
we are reluctant to conclude categorically that federal habeas review of the purportedly
defaulted claim is precluded.” Petitioner argues that the Ohio courts misapplied the res
judicata doctrine because when he presented his ineffective assistance of counsel
2
Petitioner had new counsel appointed on appeal. (Doc. 15, Vol. VI, Tr. 768).
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claims in the post-conviction proceedings, his claims were supported with evidence
dehors the record which was not available to support the claims on direct appeal.
The Magistrate Judge addressed this same argument, and began by explaining
that when the Ohio First District Court of Appeals addressed Petitioner’s ineffective
assistance of counsel claims during the post-conviction proceedings, the court
explained in “meticulous detail” why the ineffective assistance of counsel claims could
have been raised on direct appeal by Petitioner’s new attorneys and why the additional
evidence submitted with the post-conviction petition did not materially change the case
which could have been presented on appeal. See State v. Raglin, 1999 WL 420063 at
*3-6 (Ohio Ct. App. June 25, 1999).
The Magistrate Judge then explained that
Petitioner has not demonstrated that the court’s reliance on res judicata was misplaced,
and therefore distinguished this case from the situation described by the Sixth Circuit in
Greer. The Court finds no error in this conclusion.
Under Ohio law, “[t]he presentation of competent, relevant, and material
evidence dehors the record may defeat the application of res judicata.”
State v.
Lawson, 659 N.E.2d 362, 367 (Ohio 1995). However, in this case, as the Magistrate
Judge explained, the Ohio Court of Appeals found that the issue of trial counsel’s
incompetence could have been fairly determined without evidence dehors the record
because the claimed errors were evident from the record, and therefore Petitioner’s
proffered evidence dehors the record was of no consequence.
See, e.g., State v.
Raglin, 1999 WL 420063 at *5 (“Because this claim challenged conduct that was
evident in the record, it should have been brought on direct appeal. Raglin's attempt to
support the claim with evidence dehors the record, such as Porter's affidavit and
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newspaper articles, did not change this fact.”). Accordingly, the Court finds the state
court’s reliance on Ohio’s res judicata rule was not misplaced.
Next, Petitioner asserts that Ohio’s res judicata rule is not applicable because his
ineffective assistance of counsel claims were raised on direct appeal by filing an
application to re-open his direct appeal in the Ohio Supreme Court. However, as the
Magistrate Judge pointed out, under Ohio law an application to reopen is not part of a
direct appeal. See Morgan v. Eads, 818 N.E. 2d 1157, 1162 (2004) (holding that the
parallel rule found in Ohio R. App. P. 26(B) “represents a collateral postconviction
remedy and is not part of the original appeal.”); see also Lopez v. Wilson, 426 F.3d 339,
352 (6th Cir. 2005) (application to reopen under Rule 26(B) is a collateral matter rather
than part of direct review). Because an application to reopen is a collateral matter
rather than part of direct review, there is no federal constitutional right to assistance of
counsel at that stage. Lopez, 426 F.3d at 352. Absent a constitutional right, dismissal
of the federal habeas claim is proper. Id. at 353.
Finally, Petitioner argues that even if he did violate a state procedural rule, there
was cause and prejudice sufficient to excuse the alleged procedural defect. However,
as the Magistrate Judge pointed out in his Amended Supplemental R&R, Petitioner only
raised this argument in his Objections to the initial R&R:
Petitioner argues he can excuse his procedural default in presenting these
claims on direct appeal by showing of cause and prejudice and that the
ineffectiveness of his appellate counsel can constitute such cause
(Objections, Doc. 95, at 6-7). He fails to mention that he had asserted he
would need an evidentiary hearing to show such cause and prejudice
(Traverse, Doc. No. 16, at 51), but then never moved for a hearing. It was
for this reason that the Report treated the cause and prejudice claim as
abandoned (Report, Doc. No. 89, at 17).
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(Doc. 100, at 5). Petitioner did not address this point in his Objections to the Amended
Supplemental R&R, 3 and the Court finds no error in the Magistrate Judge’s
recommended disposition.
However, even if the Court were to address Petitioner’s argument, the Court
would find that Petitioner has not established cause for the procedural default. The
ineffective assistance of appellate counsel may constitute cause for a procedural
default.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
To establish ineffective
assistance of counsel, the petitioner must show both that his counsel made errors that
were so serious that “counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment;” and that counsel's deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). However,
as explained below under the Fourth Ground, Petitioner has failed to establish that he
was denied the right to effective assistance of appellate counsel based on appellate
counsel’s failure to raise trial counsel’s errors.
In a Supplemental R&R on Petitioner’s Motion for Certificate of Appealability, the
Magistrate Judge concluded that the Supreme Court’s recent decision in Martinez v.
Ryan, 132 S.Ct. 1309 (2012) did not permit Petitioner to rely on ineffective assistance of
post-conviction counsel as cause for procedural default. (Doc. 176). The Magistrate
Judge noted that the only claim of ineffective assistance of trial counsel which was not
3
However, Petitioner does raise an objection on the issue of cause and prejudice under
Ground Three, which the Court will discuss below.
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raised in the post-conviction proceedings was the claim in Ground One, subpart D.3
(the failure to object to prosecutorial misconduct). 4
In Martinez, the Supreme Court analyzed Arizona law, which expressly required
a defendant to raise a claim of ineffective assistance of counsel in an initial collateral
review proceeding. The Court held that “[i]nadequate assistance of counsel at initialreview collateral proceedings may establish cause for a prisoner's procedural default of
a claim of ineffective assistance at trial.” 132 S.Ct. at 1315. The Court explained that
this holding is a “limited qualification” to its prior decision, Coleman v. Thompson, 501
U.S. 722 (1991), in which the Court held that an attorney's negligence in a postconviction proceeding does not establish cause to excuse procedural default.
The
Court explained the exception to Coleman was narrow:
The rule of Coleman governs in all but the limited circumstances
recognized here. The holding in this case does not concern attorney
errors in other kinds of proceedings, including appeals from initial-review
collateral proceedings, second or successive collateral proceedings, and
petitions for discretionary review in a State's appellate courts. . . . It does
not extend to attorney errors in any proceeding beyond the first occasion
the State allows a prisoner to raise a claim of ineffective assistance at trial,
even though that initial-review collateral proceeding may be deficient for
other reasons.
Id. at 1320 (citations omitted).
4
There is no dispute that Petitioner’s failure to present his ineffective assistance of
counsel claim in Ground One, subpart D.3 to the Ohio courts in a timely fashion has resulted in
a procedural default of this claim. See Coleman v. Thompson, 501 U.S. 722, 731-732 (1991).
However, Petitioner’s ineffective assistance of post-conviction counsel was never presented to
the Ohio courts. As the Ninth Circuit has observed in applying Martinez, “the Supreme Court
did not find the claim barred for not being presented to the state courts. Therefore, there seems
to be no requirement that the claim of ineffective assistance of P[ost-]C[onviction]R[elief]
counsel as cause for a ineffective-assistance-of-sentencing-counsel claim be presented to the
state courts.” Dickens v. Ryan, 688 F.3d 1054, 1072 (9th Cir. 2012); but see Martinez v.
Schriro, CV 08-785-PHX-JAT, 2012 WL 5936566, *4, n.5 (D. Ariz. Nov. 27, 2012) (recognizing
in dicta the argument that “Dickens is mistaken on the facts of Martinez because in Martinez
Petitioner did present his ineffective-assistance-of-first-PCR-counsel claim to the state court
arguing it was cause to overcome the untimeliness of his second PCR petition (which argued
that trial counsel was ineffective).”).
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After the Magistrate Judge issued the Supplemental R&R, the Sixth Circuit
addressed the applicability of Martinez to a federal habeas case arising out of Ohio.
Moore v. Mitchell, 708 F.3d 760 (6th Cir. 2013). The Sixth Circuit declined to expand
Martinez, noting that the Supreme Court “repeatedly emphasized the ‘limited nature’ of
its holding, which ‘addresse[d] only the constitutional claims’ present where the state
has banned a defendant from raising his ineffective assistance of trial counsel claim on
direct appeal.” Id. at 784-85 (quoting Martinez, 132 S.Ct. at 1320). The Sixth Circuit
found that Martinez did not apply under the circumstances of the case: “Not only does
Ohio permit ineffective assistance of trial counsel claims to be made on direct appeal,
[the petitioner] raised this claim on direct appeal and the Ohio Supreme Court rejected it
on the merits.” Id.
However, the Supreme Court recently clarified that the exception to Coleman
allows a federal habeas court to find “cause,” thereby excusing a defendant's procedural
default, where:
(1) the claim of ‘ineffective assistance of trial counsel’ was a ‘substantial’
claim; (2) the ‘cause’ consisted of there being ‘no counsel’ or only
‘ineffective’ counsel during the state collateral review proceeding; (3) the
state collateral review proceeding was the ‘initial’ review proceeding in
respect to the ‘ineffective-assistance-of-trial counsel claim’; and (4) state
law requires that an ‘ineffective assistance of trial counsel [claim] . . . be
raised in an initial-review collateral proceeding.’
Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (quoting Martinez, 132 S.Ct. at 1318).
In Trevino, the Court analyzed Texas law, which on its face appeared to permit—
but not require—the defendant to raise a claim of ineffective assistance of trial counsel
on direct appeal. After analyzing the Texas procedural system, the Court concluded
that Texas procedure does not offer most defendants a meaningful opportunity to
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present an ineffective assistance of counsel claim on direct review. Id. at 1921. The
Court held that in such an instance, Martinez applies and “a procedural default will not
bar a federal habeas court from hearing a substantial claim of ineffective assistance of
counsel at trial if, in the initial-review collateral proceeding, there was no counsel or
counsel in that proceeding was ineffective.” Id. (quoting Martinez, 132 S. Ct. at 1320). 5
This Court has found that the Martinez exception applies to “a case where,
because of the way Ohio post-conviction review law is structured, the ineffective
assistance of trial counsel claim had to be brought in post-conviction.” Henness v.
Bagley, 2:01-CV-043, 2013 WL 4017643 * 3 (S.D. Ohio Aug. 6, 2013). This Court has
explained that under Ohio law, there are two categories of ineffectiveness claims which
must be raised in post-conviction proceedings: (1) ineffective assistance claims that rely
on evidence outside the trial record or (2) ineffective assistance claims where trial
counsel also served as appellate counsel, as counsel is not expected to assert his or
her own ineffectiveness. Sheppard v. Robinson, 1:00-CV-493, 2013 WL 146342 *12
(S.D. Ohio Jan. 14, 2013). Here, Petitioner’s trial counsel did not serve as appellate
counsel. 6 Therefore, Petitioner can only make an ineffective assistance claim within the
first category. 7
5
Petitioner was represented by counsel in his post-conviction proceedings. (Doc. 15,
Vol. VII, Tr. 1080). Therefore, this is not a situation described in Martinez and Trevino where
there was “no counsel.”
6
At trial, Petitioner was represented by attorneys John Keller and Robert Ranz. (See
Doc. 15, Vol. I). On appeal, Petitioner was represented by attorney Fred Hoefle. (See Doc. 15,
Vol.VI, at 774).
7
As to the first category, Magistrate Judge Merz has explained:
Ohio requires—mandates—that ineffective assistance of trial counsel claims
dependent on evidence dehors the appellate record be brought in post14
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In this case, the only possible application of the Martinez exception would be to
Petitioner’s claim in Ground One, subpart D.3, which is based on trial counsel’s failure
to object during the prosecutor’s closing argument in which the prosecutor re-enacted
the shooting using the alleged murder weapon. All of Petitioner’s other claims were
presented in his initial collateral review proceedings.
However, as this Court has
explained elsewhere, under Ohio law Petitioner was barred from litigating his claim of
ineffective assistance of trial counsel in post-conviction if he could have litigated it on
direct appeal. Sheppard v. Robinson, 1:00-CV-493, 2012 WL 3583128, *6 (S.D. Ohio
Aug. 20, 2012) report and recommendation adopted, 1:00-CV-493, 2013 WL 146342
(S.D. Ohio Jan. 14, 2013) (citing State v. Perry, 226 N.E.2d 104, 105 (Ohio 1967)). As
the Magistrate Judge pointed out, Petitioner has not made any actual argument as to
how this claim falls within the Martinez exception. 8 Without more, this Court must
conclude that direct appeal counsel could have argued ineffective assistance of trial
counsel based on the record. Therefore, Ohio’s doctrine of res judicata would have
barred Petitioner from raising it in his initial-review collateral proceeding. “Because it
would have been barred from consideration, it cannot have been ineffective assistance
conviction. For a petitioner who can only establish his ineffective assistance of
trial counsel claims with evidence dehors the record, the constitutional guarantee
of effective assistance of counsel on direct appeal is of no assistance. It was
avowedly to close this gap between guaranteed effective assistance on direct
appeal and possible complete default of a substantial ineffective assistance of
trial counsel claim in post-conviction by incompetent counsel that the Court
decided in Martinez to create the exception to Coleman.
Turner v. Hudson, 2:07-CV-595, 2013 WL 55660, *4 (S.D. Ohio Jan. 3, 2013).
8
Instead, Petitioner argues that Martinez supports his argument that Ohio’s res judicata
rule is not an adequate and independent state ground as applied to claims of ineffective
assistance of counsel. This argument is rejected, but will be addressed within the context of
Petitioner’s Certificate of Appealability.
15
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in the Martinez-incorporating-Strickland sense for initial post-conviction counsel to have
failed to raise it.” Sheppard, 2012 WL 3583128, at *6.
Therefore, the Court concludes that Petitioner has procedurally defaulted these
ineffective assistance of counsel claims and federal habeas review is precluded.
2. Second Ground for Relief
In the First Amended Petition, Petitioner added subpart D of the Second Ground
for Relief. Petitioner argues that the Magistrate Judge erred in determining that this
claim is barred by the statute of limitations. However, this Court has already adopted
the Magistrate Judge’s recommendation on this claim, without objection by Petitioner.
(See Doc. 87). Nevertheless, because the Magistrate Judge has addressed Petitioner’s
argument that his claim is timely filed, the Court will also reconsider the issue.
In subpart D of the Second Ground for Relief, Petitioner claims ineffective
assistance of counsel during the mitigation phase of his capital trial. Petitioner claims
that trial counsel failed to adequate investigate and present significant evidence of his
remorse in the hours immediately following the shooting. Petitioner argues that this
claim relates back to the Third and Twenty-Third Grounds for Relief in his original
Petition.
In Mayle v. Felix, the Supreme Court held that claims raised in an amendment to
a habeas petition did not automatically relate back merely because they arose out of the
same trial and conviction.
545 U.S. 644, 650 (2005).
The Court explained that
amendments do not relate back if they assert “a new ground for relief supported by facts
that differ in both time and type from those the original pleading set forth.” Id.
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In the original Petition, Petitioner set forth the following grounds for relief in the
Third and Twenty-Third Grounds for Relief:
Third Ground for Relief:
Walter Raglin was denied his right to the effective assistance of counsel
under the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments when his
attorneys failed to object and properly preserve numerous errors.
Twenty-Third Ground for Relief:
Walter Raglin was denied his constitutional rights to a fair and impartial
trial under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth
Amendments as a result of prosecutorial misconduct during both phases
of his capital proceedings.
(Doc. 14). The Magistrate Judge found that the original Petition does not include any
facts relative to lack of investigation about remorse, failure to disclose evidence, or a
claim of false argument by the prosecutors—facts which are used to support the subpart
D claim in the Amended Petition. (Doc. 86. at 4). This Court finds no error in this
conclusion.
In the original Petition, under the Third Ground for Relief, Petitioner argued that
counsel was ineffective because counsel failed to object at several critical stages. (Doc.
14, at 54). As one example, Petitioner explained that counsel failed to object during the
prosecutor’s closing argument during the mitigation phase when the prosecutor invited
the jury to look at Petitioner and see him bragging and laughing about Bany’s murder in
the hours after it occurred.
As another example, the prosecutor invited the jury to
speculate where Petitioner would have gone or what he would have done if he had
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successfully escaped from the Hamilton County Justice Center. 9 The prosecutor told
the jury:
[I]s he going to the Baneys [sic] to apologize? Is that why he jumped out
that window? He’s back on the streets. Back to hustling again. He’s
going to get some more and he’s going to do what he has to do to take it.
(Id. at 55).
In the Twenty-Third Ground for Relief in the original Petition, Petitioner argues
that the same facts demonstrate prosecutorial misconduct which resulted in a violation
of his constitutional rights.
The Court finds that while these facts address the issue of remorse, these facts
are not the same type of facts used to support Petitioner’s claim in subpart D. The facts
in subpart D were based on newly discovered testimony of two witnesses who were with
Petitioner immediately after the shooting.
These witnesses described Petitioner as
crying, vomiting and asking for God’s forgiveness. Petitioner argued that counsel was
ineffective for failing to investigate because counsel failed to talk to these witnesses,
who were listed in the State’s discovery.
A claim based on the failure to investigate and discover evidence of remorse is
different from a claim based on counsel’s failure to object to statements the prosecutor
made about Petitioner’s remorse, or prosecutorial misconduct based on those same
statements. Because the claims do not share a “common core of operative facts,” the
claim in subpart D does not relate back to the Third or Twenty-Third Grounds for Relief
in the original Petition.
Accordingly, the Court finds that subpart D of the Second
Ground for Relief is barred by the statute of limitations.
9
While incarcerated Petitioner attempted to escape from the fifth floor of the Hamilton
County Justice Center by jumping out of a window that had been temporarily removed by
workers. State v. Raglin, 699 N.E.2d 482, 489-90 (Ohio 1998).
18
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3. Third Ground for Relief
To repeat, in his Third Ground for Relief, Petitioner claims ineffective assistance
of trial counsel based on the failure to object and properly preserve critical errors for
appeal. In his R&R, the Magistrate Judge concluded that this claim was procedurally
defaulted on the same basis as the First Ground: it was not presented on direct appeal,
but was only presented in the petition for post-conviction relief, where it was held barred
by Ohio’s criminal res judicata rule.
(Doc. 89, at 18).
However, in the briefing of
Petitioner’s Motion for Certificate of Appealability, Petitioner points out for the first time
that this claim was first raised in his second petition for post-conviction relief. (Doc.
165). Petitioner explains that the trial and appeals court denied the claim because he
failed to satisfy the requirements of Ohio Revised Code § 2953.23 for a successive
post-conviction petition, and not based on res judicata. The Magistrate Judge found
that this argument was waived because Petitioner failed to previously object on this
basis. Petitioner objects to this conclusion. (Doc. 170, at 11).
The Sixth Circuit has explained: “As long as a party was properly informed of the
consequences of failing to object, the party waives subsequent review by the district
court and appeal to this court if it fails to file an objection.” Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995) (citing United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.
1981)). There is no dispute that Petitioner was properly informed of the consequences
of failing to object. With regards to the Third Ground, the Magistrate Judge gave notice
in both the R&R (Doc. 89, at 29) and the Amended Supplemental R&R (Doc. 100, at
21). Petitioner filed objections to the R&R and the Amended Supplemental R&R, and
19
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was later permitted to file Supplemental Objections. At no time did Petitioner raise this
factual error.
However, even if the Court were to consider Petitioner’s objection, the Court
would still reach the same conclusion after the correction of the factual error.
Under Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), Petitioner’s Third Ground
remains procedurally defaulted, albeit for a different reason. Ohio Revised Code §
2953.23 bars successive petitions for post-conviction relief unless certain criteria have
been met. The Sixth Circuit has recognized that Ohio Revised Code § 2953.23 is an
adequate and independent state procedural rule. Davie v. Mitchell, 547 F.3d 297, 311
(6th Cir. 2008) (citing Broom v. Mitchell, 441 F.3d 392, 399-401 (6th Cir. 2006)).
However, Petitioner argues that Respondent failed to raise Ohio Revised Code §
2953.23 as a basis for finding procedural default and this Court should not raise it sua
sponte. 10
The Supreme Court has explained: “Our precedent establishes that a court may
consider a statute of limitations or other threshold bar the State failed to raise in
answering a habeas petition.” Wood v. Milyard, 132 S. Ct. 1826, 1835, (2012) (citing
Granberry v. Greer, 481 U.S. 129, 134 (1987) (exhaustion defense); Day v.
McDonough, 547 U.S. 198, 202 (2006) (statute of limitations defense)). The Supreme
Court has recognized that “the Courts of Appeals have unanimously held that, in
appropriate circumstances, courts, on their own initiative, may raise a petitioner's
10
Respondent did not raise any arguments with regard to the Third Ground in the
Amended Return of Writ.
20
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procedural default.” 11 Day v. McDonough, 547 U.S. 198, 206 (2006); see, e.g., Sowell
v. Bradshaw, 372 F.3d 821, 830 (6th Cir. 2004).
However, the Supreme Court has instructed that a federal habeas court “does
not have carte blanche to depart from the principle of party presentation basic to our
adversary system.”
Wood, 132 S.Ct. at 1834.
Instead, a federal court may only
consider a defense on its own initiative where the State has not strategically withheld
the defense or chosen to relinquish it; and the petitioner is accorded a fair opportunity to
present his position. Wood, 132 S.Ct. at 1834-35 (citing Day, 547 U.S. at 210–211).
“Further, the court must assure itself that the petitioner is not significantly prejudiced by
the delayed focus on the [affirmative defense] issue, and ‘determine whether the
interests of justice would be better served” by addressing the merits or by dismissing
the petition [ ].’” Day, 547 U.S. at 210 (quoting Granberry, 481 U.S. at 136).
Here, it does not appear from the record that Respondent strategically withheld
the procedural bar defense or chose to relinquish it. Instead, the failure to raise the
defense in the Amended Return of Writ stemmed from “inadvertent error.” See Day,
547 U.S. at 211.
Petitioner has not been prejudiced by the delayed focus on the
procedural bar issue. The issue of the procedural bar to the claim raised in the Third
Grounds has been repeatedly addressed by the Magistrate Judge and the parties.
Petitioner himself has filed three rounds of objections on the issue.
While this
discussion was grounded on a procedural bar stemming from res judicata, Petitioner
has not argued that his response would have been any different had there been a
11
However, the Supreme Court has not decided the issue. 547 U.S. 206 (citing Trest v.
Cain, 522 U.S. 87, 89, 90 (1997) (holding that Court of Appeals was not obliged to raise
procedural default on its own initiative, but declined to decide whether courts have discretion to
do so).
21
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clarification that the procedural bar stemmed from a failure to satisfy the requirements of
Ohio Revised Code § 2953.23.
The Court will address those arguments now.
Petitioner repeats the same
arguments he made with respect to the First Ground for Relief: (1) Petitioner did present
this claim on direct appeal by presenting the claim in his application to re-open his direct
appeal in the Ohio Supreme Court; and (2) there was cause and prejudice to excuse the
alleged procedural default.
As to the first argument, as stated above, under Ohio law an application to
reopen is not part of a direct appeal. See Morgan v. Eads, 818 N.E. 2d 1157, 1162
(2004); Lopez v. Wilson, 426 F.3d 339, 352 (6th Cir. 2005). Therefore, Petitioner has
not presented this claim on direct appeal.
As to the second argument, the Court once again notes that Petitioner claimed
that he could demonstrate cause and prejudice to excuse this procedural default, but
stated he would need an evidentiary hearing in which to do so. However, no motion for
evidentiary hearing was ever filed. The Court finds that the Magistrate Judge correctly
concluded that the cause and prejudice argument should be treated as abandoned.
However, in his Objections to the Amended Supplemental R&R, for the first time,
Petitioner argues that a failure to request an evidentiary hearing on a claim cannot be
deemed an abandonment of a claim. Petitioner also argues that his claim of ineffective
assistance of appellate counsel is supported by the affidavits of attorneys Laney
Hawkins and Joseph E. Wilhelm. (See Doc. 15, Vol. XI, at 2809 & 2884).
The ineffective assistance of appellate counsel may constitute cause for a
procedural default.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
22
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explained below, Petitioner has failed to establish that he was denied the right to
effective assistance of appellate counsel.
Therefore, regardless of whether the
procedural default was based on res judicata or failure to satisfy the requirements of
Ohio Revised Code § 2953.23, the Court concludes that Petitioner’s claim of ineffective
assistance of trial counsel in the Third Ground was procedurally defaulted and Petitioner
has not demonstrated cause and prejudice to excuse this procedural default.
4. Fourth Ground for Relief
Petitioner claims he was denied his right to the effective assistance of appellate
counsel because counsel failed to raise the following issues in his direct appeal:
1. Trial counsel failed to challenge a prospective juror for cause or utilize
a pre-emptory challenge to remove a juror who had personal
knowledge of the crime alleged and personal relationships with those
affected by the crime alleged.
2. Trial counsel repeatedly conceded the issue of guilt at the trial phase
of his capital trial.
3. Trial counsel repeatedly conceded the issue of guilt during voir dire
and opening statement, but then argued in closing that the State had
failed to prove the element of purpose beyond a reasonable doubt.
4. Trial counsel failed to procure reasonable and necessary experts to
present forensic evidence, including evidence as to the operability of
the murder weapon.
5. Trial counsel failed to put on a defense case-in-chief targeting a lesser
included offense.
6. Trial counsel failed to investigate and present substantial mitigating
evidence of remorse during the sentencing phase hearing.
7. Trial counsel failed to raise as error trial instructions which
undermined the State’s burden of proof beyond a reasonable doubt
and shifted the burden of proof to the defendant.
23
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8. Trial counsel failed to object to the prosecutor’s closing argument
which was presented in a manner to inflame the jurors against the
defendant.
Petitioner does not object to the Magistrate Judge’s conclusion that the sixth
assignment of error is barred by the statute of limitations. However, Petitioner does
object to the Magistrate Judge’s recommendation that the remaining seven assignments
of error should be dismissed with prejudice.
As to these seven, the Magistrate Judge explained in the R&R:
Petitioner makes no argument as to why these omitted assignments of
error are meritorious or how they are more meritorious than the
assignments of error which actually were presented on direct appeal. In
other words, Petitioner merely asserts these were meritorious without
making any argument.
(Doc. 89, at 22). In his Objections, Petitioner argued that the affidavits of attorneys
Laney Hawkins and Joseph E. Wilhelm supported his claims. 12
In his Amended Supplemental R&R, the Magistrate Judge reviewed the affidavits
of Hawkins and Wilhelm to determine whether the affidavits would support Petitioner’s
claim of ineffective assistance of appellate counsel. 13 (See Doc. 100, at 10-12). The
Magistrate Judge noted that to the extent that Hawkins addressed the performance of
appellate counsel, Hawkins’ statements are set forth in a conclusory fashion. The Sixth
Circuit has explained that conclusory assertions fall far short of showing actual
prejudice. Cross v. Stovall, 238 Fed. App'x 32, 39-40 (6th Cir. 2007). In addressing
Wilhelm’s affidavit, the Magistrate Judge noted that Petitioner failed to argue why the
12
In his Amended Supplemental R&R, the Magistrate Judge notes that this is the first
time that Petitioner has cited to these affidavits. (Doc. 100, at 10). These affidavits were part of
Petitioner’s application for reopening filed with the Ohio Supreme Court.
13
The Court notes that the Magistrate Judge inadvertently referred to Hawkins as
“Haney” in several places in the R&R.
24
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issues identified by Wilhelm were stronger than the issues actually raised or why it
would have likely changed the outcome. See McFarland v. Yukins, 356 F.3d 688 (6th
Cir. 2004) (explaining that counsels’ failure to raise an issue on appeal could only be
ineffective assistance if there is a reasonable probability that inclusion of the issue
would have changed the result of the appeal); Smith v. Robbins, 528 U.S. 259, 288
(2000) (a petitioner must show that appellate counsel ignored issues which are clearly
stronger than those presented).
Moreover, as the Magistrate Judge explained, the Ohio Supreme Court rejected
Petitioner’s ineffective assistance of appellate counsel claim on the merits by refusing to
reopen. See State v. Raglin, 706 N.E.2d 789 (Ohio 1999) (table) (denying application
for reopening under Ohio S. Ct. Prac. R. XI). When a state court adjudicates on the
merits a claim which is later presented to a federal habeas court, the federal court must
defer to the state court decision unless that decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). “Establishing that a state
court's application of Strickland was unreasonable under § 2254(d) is all the more
difficult.” Harrington v. Richter, 131 S. Ct. 770, 788 (2011). As the Supreme Court has
explained, “[t]he standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id. (citations
omitted). However, this Court will “apply only modified deference because the Ohio
Supreme Court's adjudication of the ineffective assistance claim provided ‘little analysis
on the substantive constitutional issue.’” Moore v. Mitchell, 708 F.3d 760, 792 (6th Cir.
2013) (quoting Davie v. Mitchell, 547 F.3d 297, 315 (6th Cir. 2008)).
25
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modified approach, this Court must “conduct a careful and independent review of the
record and applicable law, but cannot reverse unless the state court's decision is
contrary to or an unreasonable application of federal law.” Id.
The Magistrate Judge noted that Wilhelm’s affidavit identifies three ways in which
appellate counsel provided ineffective assistance: (1) failure to claim error in the trial
court’s definition of reasonable doubt; (2) failure to claim error in the trial court’s
instructing the jury that it had to decide Petitioner’s guilt or innocence; and (3) failure to
claim error in the trial court’s instruction on “purpose.”
To begin, the Court notes that even though Petitioner’s claim of ineffective trial
counsel has been procedurally defaulted, “an examination of trial counsel's performance
[i]s required in order to determine whether appellate counsel had been constitutionally
ineffective.” See Greer v. Mitchell, 264 F.3d 663, 675-76 (6th Cir. 2001) (citing Mapes
v. Coyle, 171 F.3d 408, 419 (6th Cir.), cert. denied, 528 U.S. 946 (1999)). The Sixth
Circuit has compiled a non-exhaustive list of “considerations that ought to be taken into
account in determining whether an attorney on direct appeal performed reasonably
competently:”
A. Were the omitted issues “significant and obvious?”
B. Was there arguably contrary authority on the omitted issues?
C. Were the omitted issues clearly stronger than those presented?
D. Were the omitted issues objected to at trial?
E. Were the trial court's rulings subject to deference on appeal?
F. Did appellate counsel testify in a collateral proceeding as to his appeal
strategy and, if so, were the justifications reasonable?
G. What was appellate counsel's level of experience and expertise?
26
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H. Did the petitioner and appellate counsel meet and go over possible
issues?
I. Is there evidence that counsel reviewed all the facts?
J. Were the omitted issues dealt with in other assignments of error?
K. Was the decision to omit an issue an unreasonable one which only an
incompetent attorney would adopt?
Mapes v. Coyle, 171 F.3d at 427–28.
In light of these considerations, the Court finds that the claimed errors do not
demonstrate that Petitioner suffered from ineffective assistance of appellate counsel.
The Court notes that the Magistrate Judge addressed the merits of Petitioner’s
underlying claim regarding the instruction on purpose. In his Ninth Ground for Relief,
Petitioner claimed that the trial court gave an erroneous instruction on the issue of the
issues of causation, foreseeability, intent and purpose.
The Magistrate Judge
concluded that the claim has no merit, and as discussed below, the Court finds that this
conclusion is not in error. As to the claim that the trial court erred by instructing the jury
that it had to decide Petitioner’s guilt or innocence, the Supreme Court has rejected
similar claims that such an instruction improperly shifts the burden of proof. State v.
Diar, 900 N.E.2d 565, 590 (Ohio 2008). As to the claim that the instruction regarding
reasonable doubt was unconstitutional, Petitioner raised that claim in his Tenth Ground
for Relief, but later abandoned that claim.
The Sixth Circuit has instructed that “[i]f the underlying substantive claims have
no merit, the applicant cannot demonstrate that counsel was ineffective for failing to
raise those claims on appeal.” Davie v. Mitchell, 547 F.3d 297, 312 (6th Cir. 2008).
Therefore, the Court concludes that Petitioner has not met the burden of establishing
27
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that the Ohio Supreme Court’s decision is contrary to or an unreasonable application of
federal law. Ground Four is dismissed with prejudice.
5. Sixth Ground for Relief
Petitioner claims that his Fifth, Sixth and Fourteenth Amendment Rights were
violated when the trial court failed to suppress his statement made to members of the
Cincinnati Police Department on January 3, 1996 because his statement was made
during a custodial interrogation following an unfulfilled request for counsel.
The
Magistrate Judge recommends dismissing this claim because Petitioner has not shown
that the Ohio Supreme Court’s decision to uphold the denial of the motion to suppress is
an unreasonable application of Edwards v. Arizona, in which the Supreme Court held
that an accused “having expressed his desire to deal with the police only through
counsel, is not subject to further interrogation by the authorities until counsel has been
made available to him, unless the accused himself initiates further communication,
exchanges, or conversations with the police.”
451 U.S. 477, 484-85 (1981).
The
Magistrate Judge explained:
Mr. Raglin, given his Miranda warnings, made a complete confession to
the police before any audiotaping occurred. Once the police evinced a
desire to put the confession on tape, he hesitated about getting an
attorney. However, once the police brought him a telephone book to
enable him to do that, he changed his mind and said he wanted to go
ahead and put the confession on tape. 14 The interchange between Mr.
Raglin and the interrogating police officer which Petitioner’s counsel
characterize as “hounding” is just as reasonably read as conversation
about what Mr. Raglin wanted to do. There is no evidence of any effort by
the police to talk Mr. Raglin out of calling an attorney nor evidence to
14
Petitioner argues that there is evidence in the record that the officers never brought
Petitioner a phone book. (Doc. 142, at 9) (citing Doc. 15, Vol. I, at 66). The Court finds that this
error in the recitation of facts has no effect on the determination as to whether the Ohio
Supreme Court’s adjudication of Petitioner’s claim was an unreasonable application of clearly
established federal law.
28
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contradict the state court findings that it was Mr. Raglin who re-initiated
the audiotaping.
Moreover, no evidence has been offered which suggests that there are
any material differences in the content of the taped and untaped
confessions. While the audiotape would probably be more persuasive to a
jury and would forestall attempts to repudiate the confession, which
otherwise would only have come to the jury through an officer’s testimony,
that does not eliminate the fact that the police had a Mirandized
confession before any talk of an attorney occurred. Thus a full confession
would have been admissible entirely apart from the audiotape.
(Doc. 89, at 26).
In his Supplemental Objections (Doc. 142), Petitioner argues that the Magistrate
Judge’s conclusion is in error because evidence presented to the state court shows that
the officers never ceased custodial interrogation after Petitioner requested counsel. In
the alternative, Petitioner argues that even if interrogation ceased, Petitioner did not
evince a willingness to discuss the investigation without influence by authorities. See
Davie v. Mitchell, 547 F.3d 297, 305 (6th Cir. 2008) (explaining the general rule that “an
Edwards initiation occurs when, without influence by the authorities, the suspect shows
a willingness and a desire to talk generally about his case.”) (quoting United States v.
Whaley, 13 F.3d 963 (6th Cir. 1994)). Petitioner relies on the following testimony from
one of the officers during the suppression hearing:
Q [Defense counsel Keller]: All right. And, in fact, he – you asked him on
more than one occasion whether he wanted an attorney?
A [Officer Argo]: On tape is that?
Q: Yes, on tape?
A: Yes, clarifying the fact that he wanted an attorney.
Q: And at that point you turned the tape off?
A: That is correct.
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Q: And that was at approximately 11:02 p.m. on January 3rd?
A: Yes, it was.
Q: But at that point you didn’t stop talking with him, did you?
A: No, we did not.
(Doc. 15, App. Vol. I at 61-62). However, the same officer also testified that after
Petitioner requested an attorney:
A: We advised Mr. Raglin that he would be able to call any attorney that
he wished, that we would get the phone book for him and he could find
one of his choosing. He - - at that point he - - Mr. Raglin was very
talkative that evening and he kept talking about not wanting to
inconvenience us, put us to any trouble. We assured him that it was no
trouble as far as we were concerned. At that point he said he changed his
mind and stated he wanted to go ahead and put it on tape so that we
would have his words.
...
Q. Did you ever ask him to change his mind or did he just say, I change
my mind, I don't want an attorney?
A. He stated he wanted to change his mind and put it on tape.
Q. And how did you respond to that?
A. We advised him at that point that we would do it, but we would have to
go through the rights again to make sure that he understood that he could
have an attorney and he agreed to do that.
Q. And at that point is the tape turned back on?
A. Yes, it is …
(Id. at 48-49). Therefore, while the officers continued to talk to Petitioner, the Ohio
Supreme Court made a reasonable determination that the record revealed that the
officers ceased questioning and that:
it was appellant himself who, after invoking the right to counsel, initiated
further conversations or communications with police concerning his wish
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to confess, and that appellant fully understood his right to counsel and
voluntarily, knowingly, and intelligently abandoned that right before the
custodial interrogation resumed.
State v. Raglin, 699 N.E.2d 482, 491 (Ohio 1998). In support of this conclusion, the
Ohio Supreme Court noted that:
When asked to repeat his statement on tape, appellant agreed and was
once again advised of his Miranda rights. However, at that point,
appellant informed police that he wished to speak to an attorney before
proceeding further. Therefore, police ceased questioning appellant and
turned the recorder off. The record indicates that police offered to get
appellant a telephone book and to assist him in obtaining counsel.
Appellant told police that he did not want to “put [the police officers] to any
trouble,” but the officers assured him that his request for counsel was no
trouble. Appellant then told police that he had changed his mind
concerning counsel and that he wanted to “put it [his confession] on tape,”
and “get it off his chest.” There is no evidence whatsoever that police said
or did anything to change appellant's mind, and appellant changed his
mind after only two or three minutes. Police then turned the recorder on
and proceeded to ask appellant a series of questions regarding his waiver
of the right to counsel. In response to these questions, appellant indicated
that he fully understood his rights, that no threats or promises had been
made to induce or coerce him into confessing, and that he wanted to put
his confession on tape without talking to an attorney or having one present
during questioning.
699 N.E.2d at 491. Accordingly, the Court concludes that Petitioner has not met the
burden of establishing that the Ohio Supreme Court’s decision is contrary to or an
unreasonable application of federal law. Ground Six is dismissed with prejudice.
6. Eighth Ground for Relief
Petitioner claims that his Fifth, Sixth, Seventh, Eighth, and Fourteenth
Amendment Rights were violated when the judge refused to instruct the jury at the end
of the trial phase that it could find Petitioner guilty of involuntary manslaughter, a lesser
included offense of aggravated murder. Petitioner argues that there is evidence that he
did not intend to cause Bany’s death, but that the killing resulted from the commission of
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an aggravated robbery. Petitioner points to evidence that he had been drinking and
smoking marijuana the day of the shooting. Petitioner also relies on the manner of
death, arguing that the single gunshot wound to the neck shows that he did not intend to
kill Bany.
In finding that the trial court properly refused Petitioner’s request for an
instruction on involuntary manslaughter, the Ohio Supreme Court explained:
The facts of this case are clear. Appellant and his accomplice, Darnell
Lowery, wandered the streets of Cincinnati looking for a victim to rob.
Appellant was carrying a loaded .380 caliber semiautomatic pistol. The
men considered two potential classes of victims to rob, but decided to
search for easier prey. While appellant and Lowery were searching for a
defenseless person to rob, appellant's unfortunate victim, Michael Bany,
arrived on the scene. Appellant approached Bany and demanded money.
Bany complied with appellant's demands. The record clearly indicates
that Bany presented no threat to appellant and that appellant and Bany
never argued. Bany never spoke a single word to appellant. While
appellant was asking questions concerning Bany's car, Bany bent down
and picked up what appellant referred to as a “suitcase,” i.e., either the
guitar case or the case containing Bany's music equipment. Bany turned
to look at appellant, and appellant looked at Bany. Appellant then pointed
the pistol at Bany and shot him in the neck in a manner that was certain to
(and did) cause Bany's death.
Appellant told police, “I, I fired the gun at [Bany]. I didn't know where I hit
[him] at. I wasn'[t] tryin' to kill [him].” Appellant also claimed to have
“panicked” at the time he shot and killed Bany. Appellant told police that
he had been “scared” by Bany's movements because appellant “didn'[t]
know what * * * was in the suitcase.” However, appellant never claimed
that the shot had been accidentally or unintentionally fired, and the
evidence clearly establishes that the shooting was not accidental or
unintentional. Appellant's claims of panic and fright are not reasonably
supported by the evidence. Appellant had a loaded weapon, he was
pointing that weapon at Bany, and he fired that weapon into the neck of
his defenseless victim. Appellant told police that he had fired the weapon
directly at Bany. He told police that Bany was not trying to “fiddle” with the
suitcase or anything of that nature and that Bany had simply “picked it up.”
Appellant also admitted to police, “I didn'[t] have to shoot that man.” The
direct and circumstantial evidence in this case, and all reasonable
inferences to be drawn therefrom, lead to one inescapable conclusion, to
wit, appellant purposely killed Bany during the commission of an
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aggravated robbery when he pointed the gun at Bany and pulled the
trigger.
State v. Raglin, 699 N.E.2d at 488. The Magistrate Judge found that the Ohio Supreme
Court properly applied the Supreme Court’s decision in Beck v. Alabama, 447 U.S. 625
(1980). In Beck, the Court held that a defendant is entitled to “‘an instruction on a lesser
included offense if the evidence would permit a jury rationally to find him guilty of the
lesser offense and acquit him of the greater.’” Id. at 635 (quoting Keeble v. United
States, 412 U.S. 205, 208 (1973)).
The Supreme Court later clarified Beck by
explaining that that “due process requires that a lesser included offense instruction be
given only when the evidence warrants such an instruction.” Hopper v. Evans, 456 U.S.
605, 610 (1982) (emphasis in original).
Accordingly, no lesser included offense
instruction is required where the evidence not only supported the claim that the
defendant intended to kill the victim, “but affirmatively negated any claim that he did not
intend to kill the victim.” Id. at 613.
In this case, based on the above recitation of the facts, the Ohio Supreme Court
found “no evidence in this case to reasonably suggest that appellant lacked the purpose
to kill his victim.” 699 N.E.2d at 488. This Court finds that this was not an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding, and therefore Ground Eight is dismissed with prejudice.
7. Ninth Ground for Relief
Petitioner claims that his Fifth, Sixth, Seventh, Eighth, and Fourteenth
Amendment rights were violated when the judge erroneously instructed the jury at the
end of the trial phase on the issues of causation, forseeability, intent, and purpose.
Specifically, Petitioner objects to the following portions of the jury instructions:
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. . .when the death is the natural and foreseeable result of the act. . . .
“Result” occurs when the death is naturally and foreseeably caused by the
act. . . .
The causal responsibility of the defendant for an unlawful act is not limited
to its most obvious result. The defendant is responsible for the natural,
logical and foreseeable results that follow, in the ordinary course of
events, from an unlawful act.
As part of Petitioner’s direct appeal, the Ohio Supreme Court addressed these
jury instructions, and explained:
Appellant contends that the trial court's instructions to the jury in the guilt
phase that defined “causation” in terms of foreseeability permitted a
conviction for aggravated murder without proof of purpose to kill.
Appellant makes a similar argument with respect to the trial court's
instruction to the jury that “[i]f a wound is inflicted upon a person with a
deadly weapon in a manner calculated to destroy life, the purpose to
cause the death may be inferred from the use of the weapon.” Appellant's
arguments are not persuasive. The trial court's instructions to the jury,
viewed as a whole, made it clear that a finding of purpose (and specific
intent) to kill was necessary in order to convict appellant on the charge of
aggravated murder. The jury in this case returned its verdicts in
accordance with the overwhelming evidence on the issue. Accordingly,
we find no reversible error here.
State v. Raglin, 699 N.E.2d at 492.
The Magistrate Judge concluded that this decision was not an unreasonable
application of federal law under Francis v. Franklin, 471 U.S. 307 (1985), explaining:
the trial judge told the jury that purpose to cause death was an essential
element and twice in the same paragraph told them that proof of purpose
required proof of specific intent to cause death. Then he went on to define
purpose in terms of intention. Because, as he told the jury, we never have
direct proof of someone’s purpose, purpose being an internal mental state,
purpose must be determined from circumstantial evidence. The Court
agrees with Petitioner that the language the trial judge used – “is
determined” – told the jury that it must decide Petitioner’s mens rea from
circumstantial evidence. But that is accurate. In criminal cases as in life
in general, we never have direct evidence of another’s person’s state of
mind, even when that person declares openly what his or her state of mind
is.
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(Doc. 89, at 34-35).
The Sixth Circuit recently reviewed a habeas claim based upon a trial court’s
causation instruction in an Ohio aggravated murder trial which was similar to the one
given in this case. That instruction read as follows:
The State charges that the act of the defendant caused the death of Peter
Copas. Cause is an act which in a natural and continuous sequence
directly produces the death of Peter Copas and without which it would not
have occurred.
The defendant's responsibility is not limited to the immediate or most
obvious result of the defendant's act. The defendant is also responsible
for the natural and foreseeable results that follow, in the ordinary course of
events from the act.
Hanna v. Ishee, 694 F.3d 596, 621 (6th Cir. 2012). The Sixth Circuit noted that “the
causation instruction stands in isolation when compared to the multiple points where the
trial court properly instructed the jury on specific intent.” Id. The Sixth Circuit cited
multiple examples where the trial court advised the jurors that they could not convict the
petitioner of aggravated murder unless they found that the state met its burden to prove
the petitioner’s specific intent to kill beyond a reasonable doubt.
Id.
The court
explained that the instructions, read in their totality, clearly place the burden of proof on
the state. Id. The court distinguished the instructions from the intent instruction in
Francis, which “specifically called upon the jury to presume that the defendant intended
the natural and probable consequences of his acts.” Id. at 622 (citing 471 U.S. at 309)
(emphasis in original). The court also noted that in Francis, “the overall instructions did
not cure this error because they charged the defendant with rebutting the inference that
he intended the foreseeable consequences of his actions.” Id. (citing 471 U.S. at 315).
The court explained:
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If anything, Francis underscores our conclusion that the state courts
properly analyzed Supreme Court precedent in this case. The challenged
instruction here is clearly distinguishable from the one in Francis because
Petitioner's jury was only told that it could infer causation from the
defendant's actions; the jury was not instructed to infer anything about
Petitioner's intent from this conduct. Moreover, the error in describing
causation, to the extent there was any, was attenuated from the essential
element in dispute at trial. Finally, and in contrast to Francis, the overall
instructions provided at Petitioner's trial were curative because they
properly charged the jury as to specific intent, whereas the broader
instructions in Francis only underscored the constitutional error.
Id.
Accordingly, the court held that state courts' rulings were not unreasonable
applications of clearly established federal law, and habeas relief was not warranted. Id.
In this case, as in Hanna, the jury was instructed: (1) that aggravated murder is
“purposely causing the death of another;” (2) to find Petitioner guilty, the jury must find
beyond a reasonable doubt that “the defendant purposely caused the death of Michael
Baney [sic];” (3) that “[a] person acts purposely when it is his or her specific intention to
cause a certain result;” (4) that “[i]t must be established in this case that at the time in
question there was present in the mind of the defendant a specific intention to cause the
death of Michael Baney [sic];” (5) that “[p]urpose is a decision of the mind to do an act
with a conscious objective of producing a specific result or engaging in specific
conduct;” (6) that “[t]o do an act purposely is to do it intentionally and not accidentally;”
and (7) that “no person may be convicted of Aggravated Murder unless he or she is
specifically found to have intended to cause the death of another.” (Doc. 15, Vol. III, at
1473, 1474, 1475). As such, the Court finds little to distinguish this case from Hanna,
and therefore concludes that the Ohio Supreme Court’s ruling is not contrary to, or an
unreasonable application of, clearly established federal law. Ground Nine is dismissed
with prejudice.
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8. Seventeenth Ground for Relief
Petitioner claims that his Fifth, Sixth, Seventh, Eighth and Fourteenth
Amendment rights were violated when the judge instructed the jury at the end of the
mitigation phase in such a manner that the jury could conclude that it had to consider
and reject a recommendation as to the imposition of death before it could consider
either life sentence option.
The Magistrate Judge found that this claim was procedurally defaulted because
when Petitioner was before the Ohio Supreme Court, the claim was phrased entirely as
a matter of state law.
“As a necessary component of the exhaustion of state remedies doctrine, a
petitioner's claim must be “fairly presented” to the state courts before seeking relief in
the federal courts.” Whiting v. Burt, 395 F.3d 602, 612 (6th Cir. 2005) (citing Baldwin v.
Reese, 541 U.S. 27 (2004)). The Sixth Circuit has identified four actions a petitioner
can take which are significant to the determination of whether a petitioner has “fairly
presented” a claim to the state courts:
(1) reliance upon federal cases employing constitutional analysis; (2)
reliance upon state cases employing federal constitutional analysis; (3)
phrasing the claim in terms of constitutional law or in terms sufficiently
particular to allege a denial of a specific constitutional right; or (4) alleging
facts well within the mainstream of constitutional law.
Whiting v. Burt, 395 F.3d 602, 613 (6th Cir. 2005) (citing McMeans v. Brigano, 228 F.3d
674, 681 (6th Cir. 2000)).
Here, on appeal to the Ohio Supreme Court, Petitioner argued under Proposition
of Law No. 9:
Where jury instructions at the penalty phase of capital proceedings
misstate the law to the jury, fail to define mitigation factors, exclude
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relevant mitigation, and is otherwise erroneous and misleads the jury, the
resulting death sentence violates the Eighth and Fourteenth Amendments,
and Art. I, secs. 9 and 16 of the Ohio Constitution, and must be reversed.
(Doc. 15, Vol. VI at 863). Then Petitioner specifically argued:
F. The trial court in effect instructed the jury that it had to consider, and
reject, the death sentence before considering either life option (R.1917).
While not stating expressly that the jury was required to consider death
before considering life, that is the clear import of the instruction. This is
error sufficient to warrant reversal of the death sentence, State v. Brooks
(1996), 75 Ohio St.3d 148, 159-160, 661 N.E.2d 1030, 1042.
Furthermore, the trial court failed to instruct that one juror could prevent
the imposition of the death penalty, as required by Brooks henceforth from
that decision (which preceded Appellant’s trial by several months),
although the trial court did instruct the jury that any verdict it returned had
to be unanimous, and the jury verdict forms also reflected the requirement
of unanimity (R.1917-1919).
(Doc. 15, Vol. VI, at 865-66).
As the Magistrate Judge noted, Petitioner’s argument before the Ohio Supreme
Court included a reference to the United State Constitution, but did not phrase any
arguments in terms of federal constitutional law or cite any federal cases.
The
Magistrate Judge also reviewed, in great detail, the Ohio Supreme Court case cited by
Petitioner in his argument, State v. Brooks, and determined that while the court cited to
Mills v. Maryland, 486 U.S. 367 (1988) and Kubat v. Thieret, 867 F. 2d 351 (7th Cir.
1989), the court did not reverse the defendant’s death sentence because it found that
such a result was compelled by federal constitutional law.
Accordingly, the Court
concludes that Petitioner did not fairly present these grounds to the state courts, and
therefore the claim is procedurally defaulted.
In the alternative, Petitioner argues that Davis v. Mitchell, 318 F.3d 682 (6th Cir.
2003), which was decided five years after the Ohio Supreme Court decided his direct
appeal, should be applied to the merits of his claim.
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applicable, that decision is not “clearly established Federal law.” As the Sixth Circuit
has explained:
In Mills v. Maryland, 486 U.S. 367, 380–81, 108 S.Ct. 1860, 100 L.Ed.2d
384 (1988), the Supreme Court held a jury instruction unconstitutional that
told the jury that it could not consider a particular mitigating circumstance
unless all 12 jurors agreed that the circumstance had been proved to
exist. Under Mills, then, courts have recognized that “ ‘each juror [must]
be permitted to consider and give effect to all mitigating evidence in
deciding whether aggravating circumstances outweigh mitigating
circumstances.’” Smith v. Spisak, 558 U.S. 139, 130 S.Ct. 676, 682, 175
L.Ed.2d 595 (2010) (edits omitted) (quoting McKoy v. North Carolina, 494
U.S. 433, 442–43, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990)). The
Supreme Court has never extended that rule to jury instructions that
suggest a jury must first unanimously reject the death penalty before
considering a life sentence. Notably, though, this circuit has done so,
thereby adopting the “acquittal-first” doctrine for habeas cases. See Davis
v. Mitchell, 318 F.3d 682, 689 (6th Cir. 2003).
But the Supreme Court has rejected this circuit's approach. In the recent
Spisak case, which arose from this circuit, the Supreme Court reviewed
acquittal-first jury instructions that are very similar to the ones [the
defendant] raises in this case. The Supreme Court explained that it had
never held such jury instructions unconstitutional and that “[w]hatever the
legal merits of the [acquittal first] rule ... [such] jury instructions [a]re not
contrary to clearly established Federal law.” 130 S.Ct. at 684. Thus, even
in 2010—when Spisak was decided—the acquittal-first rule was not
“clearly established federal law, as determined by the Supreme Court.” 28
U.S.C. § 2254(d)(1). And the Supreme Court still has not adopted that
rule. See, e.g., Bobby v. Mitts, ––– U.S. ––––, 131 S.Ct. 1762, 1765, 179
L.Ed.2d 819 (2011) (affirming Spisak-like Ohio jury instructions as “not
contrary to clearly established Federal law” (internal quotation marks
omitted)).
Moore v. Mitchell, 708 F.3d 760, 792-93 (6th Cir. 2013). Accordingly, the Court finds
that this alternative argument does not entitled Petitioner to habeas relief, and the
Seventeenth Ground for relief is dismissed with prejudice.
9. Twenty-Third Ground for Relief
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Petitioner argues that he was denied his constitutional rights to a fair and
impartial trial under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments
as a result of prosecutorial misconduct during both phases of his capital proceedings.
The Magistrate Judge found that only the claims of prosecutorial misconduct
occurring during the penalty phase of the trial were presented on direct appeal to the
Ohio Supreme Court.
Petitioner initially argued that he preserved some of the
remaining claims by raising them in his post-conviction proceedings, but later conceded
in his Supplemental Objections that these claims were procedurally defaulted. (Doc.
142, at 20). However, Petitioner still maintains that certain instances of prosecutorial
misconduct were raised in his direct appeal, and were therefore preserved for review.
Petitioner relies on following instances, which were raised in Proposition of Law Nos. 5
and 16:
(1) “The prosecutors frequently stated their opinion as to Mr. Raglin’s state of
mind during the shooting, without any evidentiary foundation. (Tr. 1450,
1457);”
(2) “The prosecutors also sarcastically mis-characterized [sic] Mr. Raglin’s
statement that the gun went off accidentally. (Tr. 1451.);”
(3) “[t]he prosecutors made impermissible statements of personal opinion to
the jury (Tr. 1900, 1901, 1904)”
As the Magistrate Judge noted, in the Ohio Supreme Court, Petitioner’s claim in
Proposition of Law No. 5 was limited to alleged misconduct in the penalty phase of the
trial. Respondent points out that the first two instances listed above occurred during the
guilty phase of the trial, and therefore could not be used to support Petitioner’s claim.
However, Petitioner instead relied on these two instances in Proposition of Law No. 16,
which read as follows:
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A prosecutor’s argument which goes beyond the facts in evidence is
improper and, even where defense objections are sustained, violates the
right of the accused to due process under the U.S. and Ohio Constitutions.
(Doc. 15, Vol. VI, at 915). Under Proposition of Law No. 16, Petitioner argued:
Here, during the guilt phase argument, the prosecutor frequently stated his
opinion as to the Appellant’s state of mind during the shooting, without any
evidentiary foundation, and defense objections were sustained (R. 1450,
1457), and also sarcastically mischaracterized Appellant’s statement as
stating the gun went off accidentally, to which argument the defense
objection was also sustained (R. 1451).
...
It has been recognized that, some arguments are so prejudicial that event
the sustaining of defense objections cannot “unring the bell,” and do not
attenuate the prejudicial error, Bruton v. United States (1968), 391 U.S.
123, 88 S.Ct. 1620. Appellant’s right to a fair trial under the Fourteenth
Amendment to the U.S. Constitution and the Ohio Constitution was
violated by the prosecutor’s argument.
(Id. at 915-16). Therefore, Petitioner did in fact preserve his claims as to the first two
instances. However, as to the third instance, the statements referenced were made
during the mitigation phase of the trial (See Doc. 15, Vol. IV, at 1900, 1901, 1904) and
not raised as part of his claim under Proposition of Law No. 16 in the Ohio Supreme
Court.
Petitioner argues that because the Ohio Supreme Court failed to address the
actions of the prosecutor to determine whether they constituted prosecutorial
misconduct as a matter of federal constitutional law, Petitioner’s claim should be
reviewed de novo.
The Ohio Supreme Court’s ruling on Petitioner’s Proposition of Law No. 16, in its
entirety, was as follows:
Appellant argues in Proposition of Law No. 16 that the prosecutor
improperly referred to facts not in evidence during closing argument in the
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guilt phase. However, as appellant acknowledges, defense objections to
these alleged incidents of prosecutorial misconduct were sustained. The
prosecution was admonished by the court, and the jury was instructed to
disregard the prosecutor's remarks. The jury is presumed to have followed
the court's instructions. State v. Goff (1998), 82 Ohio St.3d 123, 135, 694
N.E.2d 916, 926. Appellant's argument is rejected.
State v. Raglin, 699 N.E.2d at 492. Therefore, while Petitioner raised a federal due
process claim, the Ohio Supreme Court did not specifically address the constitutional
issue.
Where the “state court adjudicated the claim but with little analysis on the
substantive constitutional issue,” the Sixth Circuit applies a “modified AEDPA
deference” standard of review.
Vasquez v. Jones, 496 F.3d 564, 569 (6th Cir. 2007).
Under this standard, “a ‘careful’ and ‘independent’ review of the record and applicable
law,” is required, but reversal is not warranted unless “‘the state court's decision is
contrary to or an unreasonable application of federal law.’” Id. at 570 (quoting
Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir. 2005)).
To prove a claim of prosecutorial misconduct, a habeas petitioner must
demonstrate that the prosecutor's remarks “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416
U.S. 637, 643 (1974). The prosecutor's remarks must be considered within the context
of the entire trial to determine whether any improper remarks resulted in prejudicial
error.
Cristini v. McKee, 526 F.3d 888, 901 (6th Cir. 2008).
The petitioner must
demonstrate that the prosecution's conduct was “both improper and so flagrant as to
warrant reversal.” Bates v. Bell, 402 F.3d 635 (6th Cir. 2005) (citing Mason v. Mitchell,
320 F.3d 604, 635 (6th Cir. 2003)). Once a court finds that a statement is improper,
four factors are considered in determining whether the challenged conduct is flagrant:
(1) the likelihood that the remarks would mislead the jury or prejudice the accused, (2)
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whether the remarks were isolated or extensive, (3) whether the remarks were
deliberately or accidentally presented to the jury, and (4) whether other evidence
against the defendant was substantial. Bowling v. Parker, 344 F.3d 487, 512-13 (6th
Cir. 2003) (citing Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000)).
During closing arguments, the prosecutor made the following comments:
. . . Let me ask you this: I want you to think about this somewhat. What is
not said is just as significant as what is said. If this gun that’s in evidence,
and that you’ll see it, it’s somehow accidentally or inadvertently fired,
wouldn’t he have said that to those police officers? In fact isn’t that the
first thing he would have said when he turned on that tape and when he
[sic] started to interview him. Wouldn’t he have said something like I did
the robbery, but I didn’t mean to fire the gun? Or it accidentally went off or
wouldn’t he have said I don’t know why I fired?
Mr. Ranz: Objection, Your Honor.
The Court: Objection sustained.
evidence, sir.
Let’s confine ourselves to what’s in
Mr. Gibson: Listen to the tape. He gave the police a taped statement. . . .
You’ll have it in evidence. . . . Not once did he ever say in that statement
that he didn’t mean to shoot that gun. Wouldn’t he have – wouldn’t he
have said that if it somehow inadvertently fired or that gun accidentally
went off –
Mr. Ranz: Object, Your Honor.
The Court: Let’s confine to what’s in evidence.
Mr. Gibson: Well, Judge, this is in evidence.
commenting on.
This tape is what I’m
The Court: Go ahead, sir.
(Doc. 15, Vol. III, Tr. 1449-451).
The prosecutor also stated in closing
arguments:
. . . Ask yourself this: What does a person say when he points a loaded
gun? There are spoken words in the commission of a robbery. The very
word he uttered when he approached Michael Baney and give me your
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money. [sic] But that’s only half because there are unspoken words.
There are actions as well. What’s a person say when he says give me all
your money and then points a gun? The pointing of the gun and pointing it
at you and what does that say? The natural and reasonable inference
from that is give me all your money or I’ll kill you.
Mr. Ranz: Objection, Your Honor.
The Court: Ladies and gentleman of the jury, please disregard the last
conclusion.
Mr. Gibson: I think that’s a reasonable conclusion for these jurors to draw.
The pointing of the gun says something. What does the person say when
he points a gun during an armed robbery? Isn’t that the reasonable
inference to be drawn from a person’s act in pointing a loaded gun when
he’s taking someone’s property?
Mr. Ranz: Object, Your Honor.
The Court: Overruled.
(Id., Tr. 1456-457).
As a general rule, the prosecutor has “wide latitude” during closing arguments to
respond to the defendant's strategies, evidence and arguments. Bedford v. Collins, 567
F.3d 225, 233 (6th Cir. 2009). However, it is well-established law that “a prosecutor
cannot express his personal opinions before the jury.” Bates, 402 F.3d at 644 (quoting
United States v. Galloway, 316 F.3d 624, 632-33 (6th Cir. 2003)). Therefore, in this
case, because the prosecutor expressed his personal opinions in his closing argument,
those remarks were improper. However, “‘the touchstone of due process analysis . . . is
the fairness of the trial, not the culpability of the prosecutor.’” Byrd v. Collins, 209 F.3d
486, 529 (6th Cir. 2000) (quoting Serra v. Michigan Dep't of Corrections, 4 F.3d 1348,
1355 (6th Cir. 1993)).
In ruling on Petitioner’s direct appeal, the Ohio Supreme Court acknowledged
that the prosecutor improperly referred to facts not in evidence during closing argument,
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but noted that defense objections to these remarks were sustained. State v. Raglin,
699 N.E.2d at 492. The court also noted that the prosecutor was admonished by the
court, and the jury was instructed to disregard the prosecutor's remarks. Id. The court
explained that jury is presumed to have followed the court’s instruction. Id.
This Court concludes that this decision is not contrary to or an unreasonable
application of federal law. The Supreme Court has held: “We normally presume that a
jury will follow an instruction to disregard inadmissible evidence inadvertently presented
to it, unless there is an overwhelming probability that the jury will be unable to follow the
court's instructions . . .” Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (internal quotation
marks and citation omitted) (finding habeas relief not warranted where the prosecutor
asked a single question, there was an immediate objection, and the court gave two
curative instructions). There is no evidence that the jury was unable to follow the court’s
instructions and therefore, the likelihood that the remarks would mislead the jury or
prejudice the accused is low.
In addition, the remarks were not extensive.
The prosecutor’s remark about
Petitioner’s failure to make a statement about the gun accidentally firing was only made
once. After the court sustained the defense objection, the prosecutor did review the
transcript of the taped confession in detail to illustrate this omission. Regarding the
prosecutor’s statement about the inference to be drawn from the pointing of a loaded
gun, the initial defense objection was sustained, but after the prosecutor explained the
basis for his statement, the court overruled the second defense objection. Based on the
context in which these statements were made—closing argument—it does not appear
that the improper statements were made intentionally. Finally, other evidence against
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Petitioner was substantial. Petitioner did not dispute that he approached Bany, robbed
him at gun point, and then shot and killed him. Therefore, the Court concludes that the
remarks did not rise to a level which rendered Petitioner’s trial fundamentally unfair.
Accordingly, the Ohio Supreme Court’s ruling is not contrary to, or an unreasonable
application of, clearly established federal law. Ground Twenty-three is dismissed with
prejudice.
10. Thirtieth Ground for Relief
Petitioner argues that he was denied his constitutional rights under the Fifth,
Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments during the mitigation phase
because the trial court permitted the prosecutor to introduce inadmissable rebuttal
evidence that was unfairly prejudicial to Petitioner’s rights to a fair trial and impartial
jury. The evidence was a death threat Petitioner made to a corrections officer after
being asked to move to another area and Petitioner’s attempt to escape out a window of
the Hamilton County Justice Center while awaiting trial. The evidence was introduced
to rebut Petitioner’s unsworn statement expressing remorse for killing Bany.
On this issue, the Ohio Supreme Court ruled as follows:
Appellant contends that he was unfairly prejudiced by the state’s
presentation of the rebuttal witnesses and that testimony of the corrections
officers “injected evidence of a nonstatutory aggravating circumstance,
future dangerousness,” into the penalty phase. We disagree. The
prosecution was entitled to introduce relevant evidence rebutting the
existence of any statutorily defined or other mitigating factor first asserted
by the defense. Gumm, 73 Ohio St. 3d 413, 653 N.E.2d 253, syllabus.
Here, that is precisely what occurred. The testimony of the state’s rebuttal
witnesses was indeed relevant to rebut mitigating evidence that had been
offered by the defense that appellant was remorseful for the killing, that he
would help or benefit others while serving a term of life imprisonment, and
that his life should therefore be spared. The testimony of the state’s
rebuttal witnesses was not unfairly prejudicial to appellant, was not offered
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for an improper purpose, and did not inject a “nonstatutory aggravating
factor” into the mix.
State v. Raglin, 83 Ohio St.3d at 261.
The Magistrate Judge found there was no constitutional error in this ruling,
explaining:
In essence, the Ohio Supreme Court decided that this evidence was
relevant to rebut Mr. Raglin’s unsworn statement that he was remorseful
or that he would help or benefit others while in prison. The death threat to
a corrections officer who had asked him to move to another area was
indeed relevant to rebut a claim of remorse. The escape attempt was
relevant to his claim he would help or benefit others while imprisoned.
Petitioner attempted to characterize these as the introduction of an invalid
aggravating circumstance – future dangerousness. If that were a an [sic]
aggravating circumstance under Ohio law, which it is not, this evidence
might have been relevant to prove it. But the fact that evidence might be
relevant to prove one proposition does not make it irrelevant to prove
another. One might expect that a person who was sincerely remorseful
for killing another human being would be slow to threaten death to others;
the fact that Petitioner readily threatened death to a corrections officer for
what was at most a minor inconvenience casts doubt on the sincerity of
his claim of remorse and thus was properly admitted as rebuttal to that
claim.
(Doc. 89, at 55).
The Sixth Circuit has explained that no constitutional claim is stated where a
state's highest court concludes that no extra-statutory factors were considered at the
trial level or independently reweighs the aggravating and mitigating circumstances
without reference to the extra-statutory factor improperly relied upon by the lower state
courts. Fox v. Coyle, 271 F.3d 658, 667 (6th Cir. 2001) (citing Barclay v. Florida, 463
U.S. 939 (1983) and Wainwright v. Goode, 464 U.S. 78 (1983) (per curiam)); see also
Slagle v. Bagley, 457 F.3d 501, 521 (6th Cir. 2006) (“consideration of a non-statutory
aggravating circumstance, even if contrary to state law, does not violate the [Federal]
Constitution.”). Accordingly, the Ohio Supreme Court’s ruling is not contrary to, or an
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unreasonable application of, clearly established federal law. Ground Thirty is dismissed
with prejudice.
11. Thirty-Second and Thirty-Six Ground for Relief
Petitioner argues that his rights as guaranteed by the Fifth, Sixth, Seventh,
Eighth, Ninth and Fourteenth Amendments were violated when the trial court committed
multiple errors during the pretrial, trial and mitigation phases of his capital case.
Similarly, Petitioner also argues that his conviction and death sentence are invalid under
the federal constitutional guarantees of due process, equal protection, the effective
assistance of counsel, and a reliable sentence due to the cumulative errors in the
admission of evidence and instructions, and gross misconduct of state officials in
violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution.
When presented with the argument regarding the cumulative effect of errors at
the trial court level, the Ohio Supreme Court ruled that Petitioner received a fair trial and
a fair and reliable sentencing determination. State v. Raglin, 83 Ohio St.3d at 266.
In ruling on these claims, the Magistrate Judge explained that post-AEDPA, not
even constitutional errors that would not individually support habeas relief can be
cumulated to support habeas relief. In his Supplemental Objections, Petitioner has
cited examples of instances where the Supreme Court has considered certain errors in
the context of the entire proceedings. There are certainly some instances where the
Supreme Court has instructed courts to view errors during the course of trial to make a
determination regarding fundamental fairness. See, e.g., Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974) (explaining that the relevant question is whether the
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prosecutors' comments “so infected the trial with unfairness as to make the resulting
conviction a denial of due process.”). However, as the Sixth Circuit has explained, “the
Supreme Court has not held that distinct constitutional claims can be cumulated to grant
habeas relief.” Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002), cert. denied, 538
U.S. 947 (2003).
Accordingly, the Ohio Supreme Court’s ruling is not contrary to, or an
unreasonable application of, clearly established federal law. Ground Thirty-Two and
Thirty-Six are dismissed with prejudice.
12. Thirty-Seventh Ground for Relief
Petitioner argues that the trial prosecutors violated Brady v. Maryland, 373 U.S.
83 (1963) in failing to inform defense counsel that statements taken by investigating
police indicated that Petitioner expressed remorse for his involvement in the shooting
death of Michael Bany.
This claim was added by Petitioner in the First Amended Petition. Petitioner
argues that the Magistrate Judge erred in determining that this claim is barred by the
statute of limitations. However, this Court has already adopted the Magistrate Judge’s
recommendation on this claim, without objection by Petitioner.
(See Doc. 87).
Nevertheless, because the Magistrate Judge has addressed Petitioner’s argument that
his claim is timely filed, the Court will also reconsider the issue.
As was the case with the Second Ground, the Court must apply the Supreme
Court’s decision in Mayle v. Felix, 545 U.S. 644, 650 (2005), which held that
amendments do not relate back if they assert “a new ground for relief supported by facts
that differ in both time and type from those the original pleading set forth.” As part of
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this analysis, the Magistrate Judge explained that Petitioner’s Brady claim did not relate
back to Petitioner’s Third claim (ineffective assistance for failure to object to closing
arguments about lack of remorse) and Twenty-Third claim (prosecutorial misconduct for
asking the jury to imagine Petitioner laughing and bragging about the killing):
The facts on which Petitioner relies for his Brady claim must be about
when the evidence he claims was withheld was known the prosecution,
whether in fact it was turned over, whether Petitioner knew the relevant
facts without disclosure, whether there is a reasonable probability the
evidence would have affect the outcome, etc. Those are different litigative
facts from the facts necessary to support the ineffective assistance and
prosecutorial misconduct claims.
(Doc. 100, at 20).
The Court finds no error in the Magistrate Judge’s conclusion.
Accordingly, the Court finds that the Thirty-Seventh Ground for Relief is barred by the
statute of limitations.
13. Thirty-Eighth Ground for Relief
Petitioner argues that the trial prosecutors violated Giglio v. United States, 405
U.S. 150 (1972) by allowing false testimony that Petitioner had no remorse for his
crimes. Petitioner argues that the prosecutors knew the testimony was false because
they had the statements of two witnesses who were with Petitioner immediately after the
shooting which demonstrated that Petitioner was remorseful.
Like the Thirty-Seventh Ground, this claim was added by Petitioner in the First
Amended Petition.
Petitioner again argues that the Magistrate Judge erred in
determining that this claim is barred by the statute of limitations. While this Court has
already adopted the Magistrate Judge’s recommendation on this claim (See Doc. 87),
the Court will reconsider the issue.
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The Magistrate Judge concluded that under Mayle v. Felix, 545 U.S. 644 (2005),
this claim did not relate back to the original Petition for the same reasons set forth under
the Thirty-Seventh Ground.
conclusion.
The Court finds no error in the Magistrate Judge’s
Accordingly, the Court finds that the Thirty-Eighth Ground for Relief is
barred by the statute of limitations.
C. Certificate of Appealability
Petitioner seeks a certificate of appealability on his First, Second, Third, Fourth,
Sixth, Eighth, Ninth, Twenty-Third, Thirtieth, Thirty-Second, Thirty-Sixth and ThirtyEighth Grounds for Relief and on his claim that he should have been allowed to reopen
discovery on firearms issues. The Magistrate Judge recommends issuing a certificate
of appealability on the Fourth, Sixth, Eighth, 15 Ninth, Twenty-Third, Thirtieth, ThirtySecond, and Thirty-Six Grounds for Relief. (Docs. 169, 176). The Magistrate Judge
also recommends issuing a certificate of appealability on the question of reopening
discovery. The Magistrate Judge recommends denying a certificate of appealability on
all remaining grounds.
Petitioner objects to the denial of a certificate of appealability on the First,
Second (subpart D), Third, Thirty-Second, Thirty-Sixth, and Thirty-Eighth Grounds for
Relief.
The Magistrate Judge fully set forth the standards applicable to the granting of a
certificate of appealability, and the same will not be repeated here.
15
In the R&R, the Magistrate Judge inadvertently labeled this Ground for Relief as the
“Seventh” Ground for Relief. (Doc. 169, at 25).
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1. First Ground for Relief
To summarize the Magistrate Judge’s conclusions as to the First Ground: (1)
after considering the impact of Massaro v. United States, 538 U.S. 500 (2003), jurists of
reason would not find it debatable as to whether the Ohio criminal res judicata rule is an
adequate and independent state ground; (2) certificates of appealability should not
issue on the questions of whether the First District Court of Appeals misapplied Ohio’s
res judicata doctrine to the sub-claims of ineffective assistance of trial counsel; (3)
reasonable jurists would not find it debatable as to whether Petitioner has shown
ineffective assistance of appellate counsel as cause and prejudice to cure the
procedural default of his ineffective assistance of counsel claims; and (4) Petitioner
cannot rely on ineffective assistance of post-conviction counsel to excuse cause for
procedural default.
To begin, the Court concludes that jurists of reason would not find it debatable as
to whether the Ohio criminal res judicata rule as an adequate and independent state
ground. Petitioner relies on Massaro v. United States, 538 U.S. 500 (2003), which held
that a federal defendant could raise an ineffective-assistance-of-counsel claim in a
collateral proceeding under 28 U.S.C. § 2255, even though the petitioner could have
raised the claim on direct appeal.
As the Magistrate Judge explained, Massaro
addressed the post-conviction process for federal defendants.
The Supreme Court
distinguished its holding from that which would be followed by states, by acknowledging
that a “growing majority of state courts now follow the rule we adopt today.” Massaro,
538 U.S. at 508.
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While the Sixth Circuit has not specifically addressed whether Massaro sets forth
a constitutional rule applicable to the States, other federal circuit courts have concluded
that Massaro only applies to federal convictions. See Hayes v. Battaglia, 403 F.3d 935,
937 (7th Cir. 2005) (explaining that Massaro “is a rule of practice for federal judges in
federal criminal cases . . . ”); Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003)
(stating that “Massaro is not a constitutional decision, and by its own language it did not
extend its rule beyond § 2255”).
Moreover, after Massaro, the Sixth Circuit has
repeatedly held that Ohio's doctrine of res judicata in criminal cases is an adequate and
independent state ground. See, e.g, Hanna v. Ishee, 694 F.3d 596, 614 (6th Cir. 2012).
Therefore, the Court concludes that it is not debatable as to whether Massaro is
applicable in the § 2254 context.
In addition, the Court rejects Petitioner’s argument that the Supreme Court’s
decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012) casts doubt on whether Ohio’s res
judicata rule is not an adequate and independent state ground. As the Magistrate
Judge explained in the Supplemental R&R on Petitioner’s Motion for Certificate of
Appealability, Martinez actually lends support for Ohio’s procedural framework, which
allows evidence dehors the record to be supplied on ineffective assistance of counsel
claims in the trial court. (See Doc. 176, at 4).
Next, Petitioner argues that the Magistrate Judge did not address his argument
that Ohio’s res judicata rule violates Strickland v. Washington, 466 U.S. 668 (1984)
because it deprives post-conviction petitioners of the opportunity to demonstrate that
the cumulative prejudice resulting from all of counsel’s errors warrants relief. This Court
has previously rejected a similar argument:
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Bays next claims “[t]here is no indication that the Ohio Court of Appeals
ever considered Strickland's prejudice requirement in cumulative terms.”
(COA Objections, Doc. No. 139, PageID 2299.) As proof of this
proposition, Bays criticizes the appellate court for splitting its consideration
of Bays' ineffective assistance of trial counsel claims into those based on
the trial court record and those dependent on evidence dehors the record
when it decided his direct appeal and his first post-conviction appeal on
the same day. Id. at PageID 2300. That is, of course, precisely what Ohio
law requires: claims which can be decided based on the direct appeal
record must be raised on direct appeal or they are forfeited under Ohio's
criminal res judicata doctrine. State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967). That doctrine has been repeatedly held to be an
adequate and independent state basis of decision. Durr v. Mitchell, 487
F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir.
2001); Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins,
209 F.3d 486, 521–22 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160–61
(6th Cir. 1994) (citation omitted); Van Hook v. Anderson, 127 F.Supp.2d
899, 913 (S.D. Ohio 2001).
Bays v. Warden, Ohio State Penitentiary, 3:08-CV-076, 2012 WL 6728346, *6 (S.D.
Ohio Dec. 28, 2012) report and recommendation adopted, C-3:08-CV-076, 2013 WL
361062 (S.D. Ohio Jan. 29, 2013).
Moreover, Petitioner’s case is distinguishable from the Tenth Circuit case upon
which he relies: Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003). In Cargle, the state
court rejected one of the petitioner’s ineffective assistance of counsel claims on the
merits. Id. at 1212. While the state court found that counsel's performance fell below
acceptable levels of professionalism, the court denied relief because the petitioner could
not show that this error would likely have had an effect on the outcome of the
proceeding.
Id.
Upon habeas review, the Tenth Circuit found that this prejudice
determination was neither contrary to nor an unreasonable application of Strickland, but
that “[g]iven the [state appeal court’s] procedural rejection of nearly all of petitioner's
allegations of ineffectiveness, an adequate assessment of prejudice arising from the
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ineffectiveness of petitioner's counsel has never been made in the state courts, so we
have no state decision to defer to under § 2254(d) on this issue.” Id.
Here, in contrast, there was no finding of deficient performance. On collateral
review the Ohio Court of Appeals held that all of Petitioner's ineffective assistance of
counsel claims were barred by res judicata and did not reach the merits of any claim.
State v. Raglin, 1999 WL 420063, at *3-6. Petitioner argued to the court that “the
cumulative effect of his counsel's ineffective representation rendered his trial
unconstitutional.” Id. at *6. However, the Ohio Court of Appeals held: “Insofar as we
have rejected each of Raglin's claims of ineffective assistance of counsel, we also reject
this claim.” Id.
The Court concludes that jurists of reason would not find it debatable as to
whether this is an unreasonable application of Strickland. As the Sixth Circuit has
explained, the two-part test for evaluating ineffective assistance of counsel under
Strickland, is not a set of “mechanical rules, [but] rather principles to guide the process
of deciding whether the challenged proceeding was fundamentally fair.”
Smith v.
Mitchell, 348 F.3d 177, 199 (6th Cir. 2003) (citing Strickland, 466 U.S. at 696). “Thus,
the court deciding an ineffective assistance claim need not approach the inquiry in the
same order or even address both prongs if the defendant fails to establish one.” Id. at
199-200. Therefore, it was not unreasonable for the Ohio Court of Appeals reject the
claim that cumulative prejudice resulted from the claimed errors.
Next, Petitioner argues that the Ohio Court of Appeals misapplied the res
judicata doctrine, because Petitioner supported his claims with evidence outside the
record and thus could not have raised the claims in his direct appeal. However, the
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Magistrate Judge addressed this argument for each of the subclaims and concluded
that no certificate should be issued because Petitioner has not shown that the Ohio
Court of Appeals misapplied Ohio’s doctrine of res judicata.
Turning to Petitioner’s arguments regarding ineffective assistance of appellate
counsel as cause and prejudice to cure the procedural default of his ineffective
assistance of trial counsel claims, the Magistrate Judge noted that Petitioner effectively
abandoned this claim by failing to move for an evidentiary hearing. Petitioner points out
that the Magistrate Judge has recommended granting a certificate of appealability on
his freestanding claim of ineffective assistance of appellate counsel.
The Court
recognizes that this argument has some merit. See Martin v. Mitchell, 280 F.3d 594,
606 (6th Cir. 2002) (“Inasmuch as the merits of the ineffective assistance of appellate
counsel arguments are hopelessly intertwined with the procedural default arguments
regarding the merit claims upon which we granted review, our grant of review on
procedural default encompasses these claims.”). The Court finds 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, the Court grants a certificate of appealability on the decision finding the
First Ground, subparts B.4, C.1, C.2, D.1, and D.2.a are procedurally defaulted.
As to the claim of ineffective assistance of trial counsel in subpart D.3 (the failure
to object to prosecutorial misconduct), which was not raised in any state court
proceeding, the Court concludes that it is not debatable as to whether Martinez v. Ryan,
132 S.Ct. 1309 (2012) permits Petitioner to rely on ineffective assistance of post-
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conviction counsel as cause for procedural default of his claim of ineffective assistance
of trial counsel.
Therefore, the Court grants a certificate of appealability on the decision finding
the First Ground, subparts B.4, C.1, C.2, D.1, and D.2.a as procedurally defaulted, but
does not grant a certificate of appealability on the decision finding the First Ground,
subpart D.3 is procedurally defaulted.
2. Second Ground for Relief, subpart D
The Magistrate Judge recommended dismissing this claim as being barred by the
statute of limitations under Mayle v. Felix, 545 U.S. 644 (2005). Without objection from
Petitioner, the Court adopted that recommendation. However, in the alternative, the
Court found that this claim does not relate back to the Third and Twenty-Third Grounds.
Petitioner argues that both the conclusion that he waived review and whether the claim
relates back to the original Petition are debatable among reasonable jurists. 16
In support of his argument that a certificate of appealability should issue on the
issue of whether his waiver should be excused, Petitioner points to the strained
relationship between himself and his former counsel. Petitioner also explains that while
he initially failed to object, on subsequent occasions, he has filed objections and the
issue has been fully briefed.
The Court adopts the Magistrate Judge’s conclusion that it is not debatable
among reasonable jurists that Petitioner waived his objections; but also adopts the
Magistrate Judge’s conclusion that a certificate of appealability should issue on the
question of whether the claim in Second Ground, subpart D shares a “common core of
16
Petitioner also argues that the merits of subpart D are debatable among reasonable
jurists, but there has not been a ruling on the merits of the claim.
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operative facts” with the claims in the Third or Twenty-Third Grounds. The Court finds
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.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
3. Third Ground for Relief
The Magistrate Judge recommended dismissing this claim as being procedurally
defaulted.
While Petitioner objects to the Court raising the defense of procedural
default sua sponte, the Court finds that jurists would not find it debatable as to whether
the Court properly considered Petitioner’s procedural default.
However, as with the First Ground, the Court recognizes that the procedural
default argument is intertwined with the merits of Petitioner’s ineffective assistance of
counsel claim in the Fourth Ground. Because the Court has granted a certificate of
appealability in the Fourth Ground, the Court also grants a certificate of appealability as
to whether Petitioner has established cause and prejudice to excuse the procedural
default. The Court finds that “jurists of reason would find it debatable as to whether the
petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether this Court was correct in its procedural ruling.”
See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
4. Thirty-Eighth Ground for Relief
Along with the Second Ground, subpart D, the Magistrate Judge recommended
dismissing this claim as being barred by the statute of limitations under Mayle v. Felix,
545 U.S. 644 (2005).
Like the Second Ground, subpart D, the Court adopts the
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Magistrate Judge’s conclusion that reasonable jurists would find it debatable as to
whether the Thirty-Eighth Ground shares a “common core of operative facts” with the
claims in the Third or Twenty-Third Grounds.
D. Second Amended Petition
In his Motion to Amend, Petitioner seeks to add the following Grounds to the First
Amended Petition:
Thirty-Ninth Ground for Relief: Raglin’s execution will violate the Eighth
Amendment because Ohio’s lethal injection protocol will result in cruel and
unusual punishment.
Fortieth Ground for Relief: Raglin’s execution will violate the Fourteenth
Amendment because Ohio’s lethal injection protocol will deprive him of
equal protection of the law.
(Doc. 172).
The Magistrate Judge granted Petitioner’s Motion.
(Doc. 177).
Respondent objects to that ruling, arguing that Petitioner’s claims are not cognizable in
habeas and any claims are barred by the statute of limitations.
The Court finds that the Magistrate Judge’s decision is not contrary to law. The
Sixth Circuit has held that challenges to Ohio's legal injection procedures are cognizable
in a habeas petition. Adams v. Bradshaw, 644 F.3d 481, 482-83 (6th Cir. 2011); see
also Shank v. Mitchell, 2:00-CV-17, 2013 WL 3208554 (S.D. Ohio June 24, 2013)
(concluding that petitioner's claims properly sound in habeas corpus); but see Treesh v.
Robinson, 1:12cv2322, 2012 WL 5617072 (N.D. Ohio Nov. 15, 2012) (finding claims not
cognizable in habeas). This Court has also recognized that “[t]he Sixth Circuit has
taken the position that the statute of limitations governing method-of-execution
challenges brought via § 1983 begins anew any time Ohio adopts a new written
protocol.”
Chinn v. Bradshaw, 3:02-CV-512, 2012 WL 2674518 (S.D. Ohio July 5,
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2012) (citing Cooey v. Strickland, 604 F.3d 939, 942 (6th Cir. 2010)). This Court has
applied this reasoning to method-of-execution challenges brought in habeas. Id. Here,
Petitioner claims that his claims could not have been raised previously because Ohio
adopted its latest written execution policy on September 18, 2011.
This Court
concludes that because Petitioner’s Motion to Amend was filed on March 8, 2012,
Petitioner filed his claims within the one-year statute of limitations found at 28 U.S.C. §
2244(d)(1)(D).
Accordingly, Respondent’s Objections to the Magistrate Judge’s
Decision and Order (Doc. 177) and Supplemental Opinion and Recommendations (Doc.
188) granting Petitioner’s Motion for Leave to File a Second Amended Petition are
OVERRULED.
E. Conclusion
Pursuant to 28 U.S.C. 636(b) and Fed. R. Civ. P. 72(b) the Court has conducted
a review of the record in this case and finds that Petitioner’s and Respondent’s
Objections are not well taken. Accordingly, it is hereby ORDERED that:
1. The Magistrate Judge’s R&R (Doc. 89) and Amended Supplemental R&R
(Doc. 100) regarding Petitioner’s First Amended Petition are ADOPTED;
2. The Magistrate Judge’s R&R (Doc. 169) and Supplemental R&R (Doc.
176) regarding Petitioner’s Certificate of Appealability is ADOPTED in
PART. Upon Petitioner’s objections, a Certificate of Appealability shall
issue as follows:
a. a certificate of appealability shall issue on the decision finding the
First Ground, subparts B.4, C.1, C.2, D.1, and D.2.a is procedurally
defaulted;
b. a certificate of appealability shall not issue on the decision finding
the First Ground, subpart D.3 is procedurally defaulted;
c. a certificate of appealability shall issue on the decision finding that
the claim in the Second Ground, subpart D does not share a
“common core of operative facts” with the claims in the Third or
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Twenty-Third Grounds;
d. a certificate of appealability shall issue on the decision finding the
Third Ground as procedurally defaulted;
e. a certificate of appealability shall issue on the Fourth, Sixth, Eighth,
Ninth, Twenty-Third, Thirtieth, Thirty-Second and Thirty-Six
Grounds
f. a certificate of appealability shall issue on the decision finding that
the claim in the Thirty-Eighth Ground does not share a “common
core of operative facts” with the claims in the Third or Twenty-Third
Grounds;
g. a certificate of appealability shall issue on the question of reopening
discovery;
3. Respondent’s Objections to the Magistrate Judge’s Decision and Order
(Doc. 177) and Supplemental Opinion and Recommendations (Doc. 188)
granting Petitioner’s Motion for Leave to File a Second Amended Petition
are OVERRULED; and
4. Petitioner shall file his Second Amended Petition within fourteen (14)
days of entry of this Order. The Second Amended Petition shall only
include those claims previously identified as:
Thirty-Ninth Ground for Relief: Raglin’s execution will violate the
Eighth Amendment because Ohio’s lethal injection protocol will
result in cruel and unusual punishment.
Fortieth Ground for Relief: Raglin’s execution will violate the
Fourteenth Amendment because Ohio’s lethal injection protocol will
deprive him of equal protection of the law.
5. All other grounds for relief are DISMISSED.
IT IS SO ORDERED.
s/Michael R. Barrett
JUDGE MICHAEL R. BARRETT
61
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APPENDIX D
Case: 1:00-cv-00767-MRB-MRM Doc #: 100 Filed: 06/29/06 Page: 1 of 21 PAGEID #: 519
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
WALTER RAGLIN,
:
Petitioner,
Case No. 1:00-cv-767
:
District Judge Walter Herbert Rice
Chief Magistrate Judge Michael R. Merz
-vsBETTY MITCHELL, Warden,
:
Respondent.
AMENDED SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Because of the Magistrate Judge’s error in the Supplemental Report and Recommendations
in characterizing Petitioner’s Objections as untimely filed,1 the Supplemental Report and
Recommendations are withdrawn and the following substituted. The time for objection to this
Amended Supplemental Report and Recommendations will run from its date of filing.
This capital habeas corpus case is before the Court for decision on the merits. On February
2, 2006, the undersigned filed a Report and Recommendations recommending that the First
Amended Petition be dismissed on the merits (Doc. No. 89). Petitioner has now objected (Doc. No.
95) and Respondent has replied to those Objections (Doc. No. 98). The General Order of
Assignment and Reference for the Dayton location of court permits the magistrate judges to
1
The Magistrate Judge is advised by the Clerk of Courts that Petitioner’s Objections were
timely filed on May 26, 2006, but stricken and re-filed on May 30, 2006, because counsel had used
the incorrect CM/ECF filing event on May 26, 2006. Because the original filing was deleted, the
Magistrate Judge has been unable to examine it.
-1-
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Case: 1:00-cv-00767-MRB-MRM Doc #: 100 Filed: 06/29/06 Page: 2 of 21 PAGEID #: 520
reconsider decisions or reports and recommendations when objections are filed.
Ground One: Ineffective Assistance of Trial Counsel
Many subportions of the first Ground for Relief were abandoned when the First
Amended Petition was filed. As finally briefed:
In his First Ground for Relief as amended, Petitioner asserts he was
denied effective assistance of counsel in that counsel failed to
adequately voir dire and remove Juror Tara Veesart (Claim B.4),
conceded Petitioner’s guilt and then made conflicting arguments to
the jury (Claim C), failed to put on evidence which would have
justified a jury instruction on manslaughter (Claim D.1), failed to
procure the assistance of a firearms expert (Claim D.2.a), and failed
to object to prosecutorial misconduct (Claim D.3).
(Report and Recommendations, Doc. No. 89, at 15.)
These claims were not raised in the state courts until Petitioner filed for post-conviction
relief, whereupon the state courts enforced the res judicata rule of State v. Perry, 10 Ohio St. 2d
175, 226 N.E. 2d 104 (1967), against Petitioner. The undersigned concluded that was an adequate
and independent state ground and that Ground One was therefore procedurally defaulted. (Report
and Recommendations, Doc. No. 89, at 17.)
Petitioner asserts this analysis is wrong for three reasons.
First, he asserts, the Ohio courts misapplied the Ohio criminal res judicata doctrine in this
case. He argues that Ohio courts allow ineffective assistance of trial counsel claims to be brought
initially on petitions for post-conviction relief if those petitions are supported by substantial
-2-
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evidence dehors the record which was not available to support the claim on direct appeal and asserts
he did precisely that (Objections, Doc. No. 95, at 3-5).
The First District Court of Appeals began its discussion of the ineffective as
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