Petition for Writ of Certiorari — Felix O. Brown, Jr., Petitioner v. Ohio

Supreme Court briefJan 27, 2025

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No.

Supreme Court, U.S.

FILED

IN THE

JAN 2 7 2025

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

FELIX 0. BROWN JR. - PETITIONER

VS.

STATE OF OHIO - RESPONDENT

ON THE PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF

APPEALS, FOR THE ELEVENTH APPELLATE DISTRICT, TRUMBULL

COUNTY, OHIO

PETITION FOR WRIT OF CERTIORARI

FELIX O. BROWN JR.

GRAFTON CORRECTIONAL INSTITUTION

2500 SOUTH AVON-BELDON ROAD

GRAFTON, OHIO, 44044

QUESTIONS PRESENTED

1. Can newly discovered material evidence which revealed an unauthorized

communication had with a deliberating jury, in the jury room, by/or through a

Baihff, in violation of a Petitioner’s 6th and 14th Amendment rights under the

United States Constitution during a critical stage of the criminal proceedings:

a) rise to the level of a Brady violation where said communication was

suppressed by the state?

b) or - if such intrusion does not qualify as a Brady violation - does the state’s

willful suppression of all evidence pertaining to said communication absolved a

prisoner from showing that he could not have discovered the evidence by

reasonable diligence?

2. Where, under a state’s constitution, a convicted defendant is entitled to a direct

appeal as of right: does a Brady violation occur where newly discovered material

evidence clearly establishes that an omission of evidence in the trial transcript

prevented a defendant-appellant from addressing a reversible misconduct on

direct appeal with a supporting record?

3. Is Due Process, under the 14th Amendment of the United States Constitution,

offended when a state applies res judicata to a claim supported by newly

discovered material evidence that was either unknown, or previously made

unavailable by the state, to the prisoner during direct appeal?

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED CASES

State v. Brown, 2000 Ohio App. LEXIS 143 (Ohio App. Dist. 2000) Direct Appeal

State v. Brown, 89 Ohio St. 3d 1455, 731 N.E.2d 1141, 2000 Ohio LEXIS 1802 (July

19, 2000) Discretionary appeal not allowed

State v. Brown, 91 Ohio St. 3d 1482, 744 N.E.2d 1195, 2001 Ohio LEXIS 962 (Apr.

4, 2001) Dismissed by, Discretionary appeal not allowed

Brown v. Bagley, 2003 U.S. Dist. LEXIS 29724 (N.D. Ohio, June 25, 2003) Habeas

corpus proceeding denied

Brown v. Bagley, 2003 U.S. Dist. LEXIS 29723 (N.D. Ohio, Aug. 5, 2003)

Brown v. Morganstern, 2004-0hio-2930, 2004 Ohio App. LEXIS 2571 (Ohio Ct.

App., Trumbull County, June 4, 2004) Related proceeding

Brown v. Hah, 2009-Ohio-1349, 2009 Ohio App. LEXIS 1161 (Ohio Ct. App., Stark

County, Mar. 23, 2009) Writ of habeas corpus denied

State v. Brown, 2012-Ohio-4465, 2012 Ohio App. LEXIS 3975 (Ohio Ct. App.,

Trumbull County, Sept. 28, 2012) Decision reached on appeal

State v. Brown, 2017-Ohio-4241, 2017 Ohio App. LEXIS 2299, 2017 WL 2570032

(Ohio Ct. App., Trumbull County, June 12, 2017) Decision reached on appeal

Brown v. Foley, 2020 U.S. Dist. LEXIS 252312 (N.D. Ohio, Feb. 10, 2020)

Brown v. Foley, 2020 U.S. App. LEXIS 23753 (N.D. Ohio, July, 27, 2020)

Brown v. Foley, 2020 U.S. App. LEXIS 30454 (6th Cir., Sept. 23, 2020) Rehearing

denied by, En banc

Brown v. Foley, 2021 U.S. LEXIS 1431 (U.S., Mar. 22, 2021) US Supreme Court

certiorari dismissed

iii

i ■

State v. Brown, 2023-T-0064, 2024-Ohio-792 (Ohio Mar. 4, 2024) Appeal Appealing

the denial of Crim. R. 33(B) affirmed

State v. Brown, 2024-Ohio-^927, 2024 Ohio LEXIS 1675 (Ohio, Aug. 6, 2024)

Discretion Appeal not allowed.

State v Brown, 175 Ohio St. 3d 1474, 2024-Ohio-4761, 2024 Ohio LEXIS 2104 (Oct.

1, 2024) Motion for Leave to file Revised Motion for Reconsideration granted

State v. Brown., 2024-Ohio-5529, 2024 Ohio LEXIS 2607 (Ohio, Nov. 26, 2024)

Reconsideration denied

TABLE OF CONTENTS

OPINIONS BELOW,

(

1,2

JURISDICTION,

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

;

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

Question(s) 1

. 19

Question 2

Question 3

CONCLUSION,

CERIFICATE OF SERVICE

MAILING DECLARATION,

28, 29

INDEX TO APPENDICES

APPENDIX A Judgment Entry of Appeals for the Eleventh Appellate District

APPENDIX B

Judgment Entry of Trumbull County, Ohio, Court of Common Pleas

APPENDIX C

Entry of Ohio Supreme Court Denying Review

APPENDIX D

Entry of Ohio Supreme Court Granting Motion for Leave to File

Motion for Reconsideration

APPENDIX E

Reconsideration Entry of Ohio Supreme Court Denying Revised

Motion for Reconsideration

APPENDIX F

Judgment Entry of Court of Appeals for the Eleventh Appellate

District on petitioner’s motion for the reconsideration of Opinion

affirming denial of Petitioner’s Crim. R. 33(B) Motion

APPENDIX G

Judgment on the Verdict; issued by Trumbull County Court of

Common Pleas

TABLE OF AUTHORITIES CITED

CASES

PAGE NUMBER

Banks v. Dretke, 540 U.S. 668, 695, (2004)......... ...............................

Bostic v. Connor, 37 Ohio St.3d 144, 149(1988)................................

Britt v. North Carolina, (1971) 404 U.S. 226, 227.............. :.............

Brown I. 2000 Ohio App. LEXIS 1430, (ll*h App. Dist.)..................

Brown v. Morganstern, 2004 Ohio 2930, (11* App. Dist)................

6, 8

Boumediene v. Bush, 553 U.S. 723, 780, 786 (2008).......................

Burrell v. Swartz, 558 F. Supp. 91, 92 (S.D.N.Y. May 19, 2009)....

12, 27

Carpenter v. Vaughn, 296 F.3d 138 (3rd Cir. 2002)..........................

Caver v. Straub, 349 F.3d 340, 349-50(6* Cir. 2003).....................

Dunbar v. Curtis, 2005 U.S. Dist. LEXIS 33561,[*29](E. D. Mich.)

Evitts v. Lucey, 469 U.S. 387 (1985)..............................

Fillippon v. Albion Vein Slate Co., (1919), 250 U.S. 76

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

11, 23

Holmes v. United States (C.A. 4, 1960), 284 F. 2d 716,..... .

Houston v. Lack, 487 U S'. 266..................................................

Kyles v. Whitley, 514 U.S. 419, 433, (1995)..............

Maxwell v. Conway, 2009 U.S. Dist. LEXIS 129999

(S.D.N.Y. May 19, 2009)................................................

McKane v. Durston, 153 U.S. 684 (1894)

Parker v. Gladden, 385 U.S. 363 (1966)

vii

Payton v. Crow, 2022 U.S. Dist. LEXIS 119698 (N.D. Okla).............

Remmer v. United States, 347 U.S. 227, 229, (1954)..........................

Rushen v. Spain, (1983) 464 U.S. 114,..................................................

State ex rel. Ames v. Portage Cty. Bd. of Comm'rs, 2020-Ohkr3932

State v. Abrams, 39 Ohio St.2d 53, 55-56 (1974);

State y. Adams (1943), 141 Ohio St. 423, 48 N.E.2d 861

State v. Bethel, (2022), 167 Ohio St. 3d 362

State v. Brown, 2024-Ohio-792, (11* App. Dist.)

1, 2, 8, 16, 20

State v. Brown, 2000 Ohio LEXIS 1802....

1,9

State v. Brown, 2000 Ohio App. LEXIS 1430 (11th App. Dist.)

1,9

State v. Foster, 1995 Ohio App. LEXIS 4812,(8th App. Dist.)..

State v. Keene, 1996 Ohio App. LEXIS 4048,(2nd. App. Dist.).

State v. Keene, (1998) 81 Ohio St. St. 3d 646,...........................

State v. King (1983), 10 Ohio App. 3d 93,..................................

State v Maddox, 2002 Ohio App. LEXIS 1202,(11th App. Dist.)

State v. Murphy, 65 Ohio St.3d 554, 575, (1992)

State v. Poling, 1991 Ohio App. LEXIS 2294, (llth App. Dist.)

State v. Ricard, 2008-Ohkr3742,(11th App. Dist.)........................

State v. Schiebel (1990), 55 Ohio St. 3d 71, 81...........................

State v. Walden, 19 Ohio App. 3d 141(10* App. Dist, 1984)

Strickler v. Greene, 527 U.S. 263, 282-285 (1999)

Tedford v. Hepting, 990 F.2d 745 (3rd Cir. 1993)

viii

;

United States v. Cronic, (1984), 466 U.S.648

21, 23

United States v. Finley, 301 F.3d 1000, 1014-15(9th Cir. 2001)

25 '

STATUTE AND RULES

Art. 1, § 2 of the Ohio Constitution

3, 13, 14, 15

Art. 1, §16 of the Ohio Constitution

3, 14, 15

Art. IV, § 1, 2, 3, of the Ohio Constitution

28 U.S.C. § 1257(a)

Fourteenth Amendment of the United States Constitution

Sixth Amendment of the United States Constitution

Ohio App. R. 9(E)

3, 14,15, 22, 23, 26

3, 20, 22, 23

3,7,12, 25

Ohio Crim. R, 24(H)(4)

3, 13, 14

Ohio Crim. R. 33(A)

13, 22

Ohio Crim. R. 33(B)

2, 3, 10, 12, 13, 14, 15

Ohio Evid. R. 606(B)(1)

Ohio Evid. R. 704

OTHER

Ohio Revised Code 2945.33

3, 15, 16, 17, 22

IN THE

THE SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issues to review judgment

below.

OPINIONS BELOW

For cases from state courts:

• The opinion of the highest state court to review the merits - Court of

Appeals for the Eleventh Appellate District — appears at Appendix A to

the petition and is reported at State v. Brown, 2024-Ohio-792.

•

The opinion of the Court of Common Pleas for Trumbull County, Ohio,

appears at Appendix B to the petition and is unpublished.

• The opinion of the Supreme Court of Ohio appear at Appendix C to the

petition and is reported at State v. Brown, 2024 Ohio LEXIS 1675.

•

The decision of the Supreme Court of Ohio on petition’s motion for motion

for leave to revise motion for reconsideration - appear at Appendix D to

the petition and is reported at State v. Brown, 2024 Ohio LEXIS 2104.

Page 1 of 29

•

The decision of the Supreme Court of Ohio on petitioner’s revised motion

for reconsideration — appear at Appendix E to the petition and is

Reported at State v. Brown, 2024 Ohio LEXIS 2607.

•

The judgment entry of the Court of Appeals for the Eleventh Appellate

District, on petitioner’s for the reconsideration of review Opinion

affirming denial of petitioner’s Crim. R. 33(B) motion — appears at

Appendix F to the petition and is unpublished.

•

The Judgment Entry Trumbull County Court of Common Pleas

containing Conviction and Sentence — appears at Appendix G to the

petition and is unpublished.

Page 2 of 29

JURISDICTION

For cases from state courts:

The date on which the highest state court decided petitioner’s

case was

August 6, 2024. A copy of that decision appears at Appendix C.

A timely petition for rehearing was thereafter denied on the following date;

November 26, 2024. A copy of the order denying rehearing

appears at

Appendix E.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Art. 1, § 2 of the Ohio Constitution

Art. 1, §16 of the Ohio Constitution

Art. IV, § 1, 2, 3, of the Ohio Constitution

Fourteenth Amendment of the United States Constitution

Sixth Amendment of the United States Constitution

Ohio App. R. 9(E)

Ohio Crim. R. 24(H)(4)

Ohio Crim. R. 33(B)

Ohio Revised Code 2945.33

Page 3 of 29

STATEMENT OF THE CASE

On March 16, 1995, Petitioner was indicted by the Trumbull County Grand Jury

on one count of murder with a firearm specification and one count of having

weapons while under disability. On September 25,1995, a jury trial was commenced

whereas on September 29, 1995, the testimony of witnesses and submission of

evidence to the jury was concluded. And after receiving final instruction from the

trial judge, Mitchell Shaker, informed them from this time on, you will be in charge

of the bailiff. You will follow her instructions in every regard. If you desire to

communicate with the Court, you should do so in writing, only after the careful

consideration of the language used so that the same does not necessarily disclose

the status of your deliberations. The jury retired from the courtroom to deliberate

uPon its verdict at BIO p.m. Transcript page(s) (T.pg’s.) 579-582.

At 6:33 p.m. the deliberating jury made several inquiries of the court. The first

question, “we’re noticing discrepancies in evidence of a second shell casing found in

Apartment Number 238 and not Apartment 278. Are we to assume that this only an

error in apartment numbers, or was this found (by Private Investigator, Ben

DiGiovonne) in Felix Brown’s dad’s apartment?” The second question, same time, is

the stipulation of the murder charge, the word purposely, “in other words, if it was

not a purposely committed act, is he not guilty?” T.pg’s. 584-585. At 6:50 p.m. the

court refused to specifically respond to the jurors’ two inquires: instead Judge

Shaker informed them that they’ would have to rely on their memory regarding the

evidence pertaining to the recovery location of the shell casing. And in regard to

Page 4 of 29

their second inquiry, Judge Shaker stated: “There is no way a Judge can answer

that question except to give you the charge that I gave you (regarding) Purposely...”

T.pg’s. 585-587. At 8:00 p.m. the deliberating jury submitted the following question

to the Court. “We all agree on the second count (having a weapon while under

disability). Should we sign the Verdict on Count Two?” At 8:03 p.m. the Judge had

them returned to the courtroom where he delivered a supplemental “Allen Charge”

instruction. And asked the following: “I am interested in knowing whether or not

there is a possibility of reaching an agreement within a reasonable time?” And after

not receiving a definitive answer from the Forelady, Judge Shaker instructed them

“to continue their’ deliberations until 9:00 p.m. and see what happens.” At 8;10 p.m.

the jury retired from the courtroom to continue their deliberations. T.pg’s. 587-591.

And approximately 9:00 p.m. the jury announced that they had arrived at a guilty

verdict on both counts. And at 9T8 p.m. Brown was escorted from the Trumbull

County Jail to the Courthouse: where he was pronounced guilty on both counts.

T.pg’s. 591-592.

The sentencing hearing was held in October 3, 1995, where, therein, Brown

informed the Court that he would like to appeal. A Notice of Appeal was filed per

Brown’s request on October 31, 1995.

•k"krk

“After appellant's convictions, (Michael A.) Partlow was assigned as

appellant's counsel. Partlow was of counsel to the firm of Morganstern, MacAdams

Page 5 of 29

and DeVito, L.P.A. (the firm). Partlow reviewed the trial transcript and forwarded

it to appellant.” Brown v. Morganstern, 2004 Ohio 2930, [*P3](llth App. Dist).

Upon petitioner receiving the copy of his trial transcript from Atty. Partlow,

petitioner immediately began to notice, therein, that there were omitted and altered

sections of actual testimony of several of the defense and state witnesses. Petitioner

then informed Atty. Partlow of the material inaccuracies.

Atty. Partlow then discovered that the Trumbull County Court of Common

Pleas audiotaped important criminal trials, including trials for murder. Atty.

Partlow, then forwarded a written transcript of the audiotapes to Petitioner,

enabling Petitioner to then specify which part or parts of the trial transcript he

claimed were materially inaccurate.

Petitioner provided Atty. Partlow with a very detailed comparison of the trial

transcript and the written transcript from trial court's audiotape-of the trial, via

certified mail, wherein Petitioner outlined differences he claimed existed between

the trial transcript and the transcript of the audiotapes and between the trial

transcript and the testimony he recalled given during trial. Id. Brown v.

Morganstern, 2004 Ohio 2930, [*P3].

Petitioner then instructed Atty. Partlow to pursue the prescribed court

procedure to address the intentionally altered sections of the record. Id Brown v.

Morganstern, 2004 Ohio 2930, [*P4],

Atty. Partlow then petitioned the Eleventh District Court of Appeals for a

limited remand hearing so as to properly address said omissions and inaccuracies,

Page 6 of 29

whereas the appellate court, after requesting and receiving from him an exhaustive

list of the omissions and inaccuracies and explanation of how the correction of those

errors would be material to the specific assignments of error, remanded appellant’s

criminal appeal pursuant to App. R. 9(E) to determine whether the trial transcript

must be corrected.

However, prior to said limited remand, Common Pleas Court Judge Andrew

Logan (who was not the judge whom presided over petitioner’s criminal trial) ruled,

off the record and in the absence of petitioner — prior to having petitioner returned

from prison for the limited remand hearing - “that the trial witnesses would not

testify at the hearing to their trial testimony”.

Once Atty. Partlow informed petitioner of this, over the phone, days prior to

petitioner being transferred from the prison back to Trumbull County for the App.

R. 9(E) hearing, petitioner voiced his dislike for this decision in writing to Partlow

and requested that Partlow object on the record, by any legal means possible, to this

ruling’ so to make the trial judge's decision part of the record so that the off the

record ruling could be addressed during direct appeal. Partlow did not follow these

instructions.

Page 7 of 29

At the limited remand hearing, the trial court heard testimony from

appellant, appellant'sdather, appellant's trial counsel1, and the court reporter.

During this time, appellant contends he urged Partlow, during his cross-examine of

the court reporter, to confront her with the material inaccuracies in the trial

transcript. Atty. Partlow failed to do so. Brown v. Morganstern, 2004-0hio-2930, at

[*P4]

“In its February 27, 1999 judgment entry, the trial court stated that ‘upon

full and final review of [appellant's] motion, this Court finds it to be, in all respects,

bordering on frivolous. [Appellant's] recollections were generally self-serving and

without any basis in fact. *** This Court finds the official transcript of this Court to

have been completed in a true, accurate and professional manner.’” [Emphasis

added.] Id. Brown v. Morganstern, 2004-0hio-2930, at [*P5].

The Court of Appeals in affirming petitioner’s conviction and sentence on

direct appeal in State v. Brown, 2000 Ohio App. LEXIS 1430 did so without the

documented evidence of Judge Logan’s off the record App. R. 9(E) ruling — which

only surfaced in 2004; within the Eleventh District Court’s Opinion affirming the

1 “App. R. 9(E) states in part, ‘If any difference arises as to whether the record truly discloses what

occurred in the trial court, the difference shall be submitted to and settled by the court and the

record made to conform to the truth.’ Thus,.‘it is within the province of the trial court to resolve

disputes about the record on appeal.’ State v. Schiebel (1990), 55 Ohio St. 3d 71, 81, 564 N.E.2d 54,

66. Here, the trial court did resolve the dispute; it found the year-old recollection of the former

counsel for an interested party insufficiently persuasive to impeach the stenographic record. State v.

Keene, 81 Ohio St. 3d 646, 665 (1998)” Id, Appellant Brief, Fn. 7

Page 8 of 29

Trumbull County Court of Common Pleas’ dismissal of petitioner’s legal malpractice

suit lodged against Atty. Michael A. Partlow.

To wit:

In the instant case, the trial court reviewed the audio tapes of the trial and

listened to the witnesses at the evidentiary hearing. We have no reason to

doubt the trial court's assessment of the audio tapes, and the record of the

evidentiary hearing supports the trial court's conclusion that appellant's

testimony was self-serving. Because the trial court's decision concerning the

record was supported by competent, reliable evidence, we will not reverse its

decision.”

Id, State v. Brown, 2000 Ohio App. LEXIS 1430, [*3l]

The State Supreme Court declined to accepted jurisdiction. Id, State v. Brown,

2000 Ohio LEXIS 1802

In October of 2021, years after numerous state and federally collateral attacks,

several members of petitioner’s family agreed to hire a private investigator in hope

of uncovering newly discovered evidence. And as a result, the following newly

discovered material evidence was obtained:

•

“A member of the jury, Adriane Perritti, first being sworn according to law,

deposed and stated the following within an affidavit that she specifically

recalls that during their’ (the jurors) deliberations: an individual came into

the jury room during deliberations and asked them how it was going? And

upon being informed that they were deadlocked 10-2 on Count One (the

Page 9 of 29

murder charge), that individual then: ‘told them to stay until they reached

a decision.’2 And soon thereafter, they arrived at a guilty verdict on all

charges.”

•

“A member of the jury, Cathy Brunstetter, first being sworn according to

law, deposed and stated the following within her affidavit, that she

specifically recalls that during Dr. (William) Cox’s testimony, he informed

them that ‘the defendant placed the weapon against the victim’s head and

intentionally pulled the trigger! he pushed that gun into her head!’ (Yet,

nowhere contained within the entirety of the alleged official trial transcript

is it documented that Dr. Cox testify that ‘the defendant... intentionally

pulled the trigger and/or he pushed that gun into her head!)

On 12/27/2022, Petitioner filed a Motion for Leave to File a Motion for a New Trial,

under Ohio Crim. R. 33(B) - in conjunction with his Ohio Crim. R. 33(A) New Trial

Motion - based upon such newly discovered material evidence. And, therein, he

presented irrefutable documented evidence to satisfy and/or overcome the reasonable

2 “Bailiff misconduct in communicating to a deliberating jury will be presumed prejudicial where

after such communication a verdict is returned. See State v. King-(1983), 10 Ohio App. 3d 93, 460

N.E.2d 1143, citing State v. Adams(1943), il4:l Ohio St. 423, 48 N.E.2d 861, where a bailiff standing

inside the doorway of the jury room after being informed the jury could not reach a decision replied,

Tou can't do that. You must reach a decision if you have to stay here for three mohths.’ State v.

Foster, 1995 Ohio App. LEXIS 4812, [*5](8th App. Dist.)” Id, Defendant’s Crim. R. 33(B) motion, fn.

16; Appellant Brief, Fn. 6.

Page 10 of 29

diligence prerequisite of Crim. R. 33(B); via, proof that: (l) the trial transcript had

not being provided to him, as an indigent defendant in prison3 until well after the

120‘day timehne prescribed in Crim. R.33(B); (2) that the evidence documenting

Judge Logans off the record App. R. 9(E) ruling had been previously unavailable to

the prisoner until 2004 - when a panel of the Eleventh District Court of Appeals had

itself somehow uncovered, and then revealed, such within its’ 06/04/ 2004 Opinion in

Brown v. Morgansterff\ and (3) the improper communication had with the jury,

during deliberations, was untranscribed and only known by the state. Petitioner

further, presented, therein, the following case law in support:

Griffin v. Illinois and its progeny establish the principle that the State must,

as a matter of equal protection, provide indigent prisoners with the basic tools

of an adequate defense or appeal, when those tools are available for a price to

other prisoners. While the outer limits of that principle are not clear, there

can be no doubt that the State must provide an indigent defendant with a

3 [T]he Supreme Court of Ohio again held that the clerk of courts is under no duty to provide an

indigent defendant with a copy of a trial transcript in addition to the copy filed with the court of

appeals. State ex rel. Greene v. Enright (1992), 63 Ohio St.3d 729, 732, 590 N.E.2d 1257, ***Clearly,

the duty to provide a transcript at the state's expense extends only to providing one free transcript

for the entire judicial system, not to sending an additional transcript to an indigent defendant in

prison. State vMaddox, 2002 Ohio App. LEXIS 1202, [*P17-*P18] (11th App. Dist.).” Id, Appellant

Brief, Fn. 9.

4 Id. 2004-0hio-2930, at [*P4]

Page 11 of 29

transcript of prior proceedings when that transcript is needed for an effective

defense or appeal.’ Britt v. North Carolina, (1971) 404 U.S. 226, 227.5

[T]he state must afford defendants with a fair and adequate procedure [s] for

settling transcripts.’ Maxwell v. Conway, 2009 U.S. Dist. LEXIS 129999, at

*7 (S.D.N.Y. May 19, 2009). To demonstrate a due process violation arising

out of transcript inaccuracies, a Petitioner must show; that either the

available settlement procedures were unfair or the existence of intentional

tampering; and (2) that the errors prejudiced his right to appeal. See, Burrell

v. Swartz, 558 F. Supp. 91, 92 (S.D.N.Y. May 19, 2009).6

Brown has, thereby been adversely affected by the denial of his rights under,

both, the United States, and the Ohio Constitution where he was deprived of;

(1) a full and fair criminal jury trial proceeding; (2) an impartial jury; (3) an

adequate App. R. 9(E) corrective process in which to fully address the

intentional omissions and altered sections contained in the trial transcript;

and (4) a full and fair direct appeal.

In Holmes v. United States (C.A. 4, 1960), 284 F. 2d 716, Judge Haynsworth

stated that there are two types of newly discovered evidence^ (l) evidence

bearing upon the substantive issue of guilt; and (2) evidence bearing upon the

integrity of the trial.”

5 Id. Crim. R. 33(B), p. 8

6 Id. Crim. R. 33(B), p. 6

Page 12 of 29

State v. Walden, 19 Ohio App. 3d 141,145 (10th App. Dist. 1984) ,”7

In refusing to grant petitioner’s Crim. R. 33(B) motion for leave to proceed the

trial court — Judge Logan — pronounced: in direct regard to the contents of Juror

Cathy Brunsetter’s affidavit recounting the actual material content of testimony

of several trial witnesses:

•

“The first juror, Cathy Brunstetter, attests to her recollections regarding

testimony from two witnesses at the trial. The juror’s recollections are not

evidence that would or could have been produced at the trial had they been

discovered earlier, and are therefore outside the scope of Crim. R. 33.

Further, testimony from Brunstetter regarding her recollections would be

prohibited by Evid. R. 606(B)(1)”8

Therein, Judge Logan, also, held: in direct regard to the content of Juror Adriane

Perritti’s affidavit - involving the unauthorized communication, had in the jury

room, with the then deliberating jury:

•

That there was ‘no evidence this was . a court official, and rejected the

evidence, further claiming that Appellant had not shown ‘by clear and

convincing evidence’ that he was ‘unavoidably prevented’ from discovering

this evidence within 120 days of the verdict,.9

7 Id. Crim. R. 33(B), p. 5

Id. Appendix B, p. 3

9 Id. Appendix B, p. 3

Page 13 of 29

Within petitioner appeal, appealing the denial of his Crim. R. 33(B) motion,

petitioner raised the following: “ISSUES PRESENTED FOR REVIEW AND

ARGUMENT”:

•

Did the trial court err as a matter of law by ruling contrary to clear and

unambiguous law of ORC Ann. 2945.33 and Ohio Crim. R. 24(H)(4) during

its assessment of the content of Juror Adriana Perretti affidavit: in violation

of Appellant s right to Equal Protection of Law and Due Process under Art. 1,

§ 2 and Art. 1, §16 of the Ohio Constitution,: and under the Fourteenth

Amendment of the United States Constitution?”10

•

“Judge Logan disregarded clearly established law where he held: that the

petitioner was not entitled to the same level of basic procedural-due_p rocess

protections to satisfy the unavoidably prevented requirement of Crim. R.

33(B) that the law afforded a petitioner that had evidence suppressed by the

prosecutor- because it was the bailiff, not the prosecutor, whom suppressed

the evidence petitioner relied upon.”11

•

Did the trial court err as a matter of law by ruling contrary to clear and

unambiguous statutory, and constitutional, law when it held: the affidavit of

Juror Cathy Brunsetter attesting her recollection regarding the testimony

from two witnesses had at trial is not evidence that would or could have been

produced at the trial had they been discovered earlier, and are therefore

10 Id, Appellant Brief, pgs. ii and 9-12; Appellant Reply Brief, pgs. 3-4

11 Id, Appellant Brief, Pgs. 8 and 15-17; Appellant Reply Brief, pgs. 6-7

Page 14 of 29

outside the scope of Grim. R. 33: in violation of Appellant’s right to Equal

Protection of Law and Due Process under Art 1, § 2 and Art. 1, §16 of the Ohio

Constitution.: and under the Fourteenth Amendment of the.United States

Constitution?”12

The court of appeals in affirming the trial court’s denial of Petitioner’s Criih.

R. 33(B) Motion for Leave to File a Motion for New Trial, issued the follow

pronouncement:.

Under his first assignment of error,, appellant argues that the trial court

misapplied the law regarding the affidavit submitted by Juror Perretti who

sat on his trial. The juror averred that a person entered the jury room during

deliberations to see how deliberations were going; the person allegedly

indicated that the jury needed to continue deliberating until they reached a

decision. Appellant asserted, without substantiation, the individual described

m the affidavit was a court official. Appellant claims the trial court failed to

give proper weight to the juror's affidavit. In, appellant's view, this

interruption in deliberation occurred in violation of R.C. 2945.33, which

requires the jury to be under the charge of an officer and that officer shall

not

allow communications to the jury nor shall he or she make communications

to the jury except to ask if the jury has agreed on a verdict.

The trial court determined that the foregoing argument lacked merit because

appellant failed to demonstrate, by clear and convincing evidence, that he

12 Id, Appellant Brief, Pgs. V and 17-22; Appellant Reply Brief, pgs. 1-2

Page 15 of 29

was unavoidably prevented from obtaining the evidence. We agree with the

trial court.

“Misconduct of a court officer in communicating to the jury, in violation of

R.G. 2945.33, during its deliberations ‘will be presumed to be prejudicial to a

defendant against whom, after such communication, a verdict is returned by

such jury.’ State v. Adams, 141 Ohio St. 423, 430-431, 48 N.E.2d 861 (1943),

paragraph three of the syllabus. Hence, as a general rule, a court officer's

communication with the jury in the defendant's absence may be grounds for

a new trial. State v. Abrams, 39 Ohio St.2d 53, 55-56, 313 N.E.2d 823 (1974);

Bostic v. Connor, 37 Ohio St.3d 144, 149, 524 N.E.2d 881 (1988) (superseded

by statute on other grounds). The presumption of prejudice, however, is not

conclusive. Rather, the burden shifts and ‘rests heavily upon the Government

to establish, after notice to and hearing of the defendant, that such contact

with the juror was harmless to the defendant.’ State v. Murphy, 65 Ohio St.3d

554, 575, 605 N.E.2d 884 (1992), quoting Remmer v. United States, 347 U.S.

227, 229, 74 S. Ct. 450, 98 L. Ed. 654, 1954-1 C.B. 146 (1954).

“Initially, Juror Perretti did not aver that the alleged individual entering the

jury-deliberation room, was a court officer. In fact, she averred she did not

recall "the identity, sex, or role of this person." Appellant accordingly

assumes, without supportive evidence, that the individual was a court officer.

This is problematic because without an averment that the individual was a

Page 16 of 29

member of court personnel, it is unclear what, if any impact the statements

made by the individual would have had on the jury's deliberations.

One obvious, if not the primary, bane R.C. 2945.33 is designed to avoid is

contaminating the jury's deliberations. If an individual, who appears to be

;

operating under the cloak of the court's authority, interrupts deliberations

and provides improper direction to the jury outside of the court's, the

defendant's, as well as defense counsel's presence, a defendant's due process

right to a fair trial is presumed to be compromised. Because, however,

appellant did not establish the individual at issue was a court officer or

employee, it is not clear that the presumption of prejudice would necessarily

attach.

“Even assuming this point is insufficient to fully undermine appellant's

argument, appellant failed to aver or set forth any material facts that he was

unavoidably prevented from obtaining the information elicited from Juror

Perretti's affidavit. To establish eligibility to obtain leave to file, a party must

establish a firm belief or conviction in the facts sought to be established.

Appellant concedes he retained Private Investigator Tom Pavlish on October

23, 2021, some 16 years after his conviction. The information could have

reasonably been obtained by appellant prior to the expiration of the 120 days

set forth in Crim.R. 33 with the exercise of reasonable diligence. Appellant's

argument therefore lacks merit.”

Appendix A, at\kP12- ''PI7]

Page 17 of 29

{

The court of appeal, also, held: in direct regard to the contents of Juror Cathy

Brunsetter s affidavit — involving her recollections of the actual material content of

testimony of several trial witnesses:

Under his fifth, sixth, and seventh assignments of error, appellant claims

the trial court erred in denying him leave to file his motion for new trial based

upon Juror Cathy Brunstetter's affidavit, In her affidavit, Juror Brunstetter

averred she recalled] Dr. William Cox testifying that Mr. Brown put the

weapon against [the victim's] head and intentionally pulled the trigger. I

recall Dr. Cox testifying that Mr. Brown pushed the gun into her head.’

Appellant maintains, however, this aspect of the trial testimony was omitted

from the trial transcript. He therefore maintains he was denied due process

because, on appeal, the trial transcript was incomplete. We disagree.

Appellant mistakenly claims that that Juror Brunstetter's averments

indicate the trial transcript was altered. The content of the affidavit, however,

merely indicates the juror's recollection of some of the substantive content of

one expert witness. While irregularities in the transcript were at issue in this

case, these points were raised on appellant's direct appeal and resolved by

this court in Brown I. 2000 Ohio App. LEXIS 1430, 2000 WL 522339, at *1011. Accordingly, the due process issue identified by appellant is barred by the

doctrine of res judicata.”

Appendix A, at [*P25-*P27].

Page 18 of 29

REASON FOR GRANTING THE PETITION

A STATE COURT HAS DECIDED IMPORTANT QUESTIONS OF FEDERAL

LAW THAT HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT.

1. Question V Can newly discovered material evidence which revealed an

unauthorized communication had with a deliberating jury, in the jury room, by/or

through a Bailiff, in violation of a Petitioner’s 6^ and 14^ Amendment rights

under the United States Constitution during a critical stage of the criminal

proceedings:

a) rise to the level of a Brady violation where said communication was

suppressed by the state?

b) or - if such intrusion does not qualify as a Brady violation - does the state’s

willful suppression of all evidence pertaining to said communication absolved

a prisoner from showing that he could not have discovered the evidence by

reasonable diligence?

The Court of Appeals for the Eleventh Appellate District of Ohio has, and

thereby has sanctioned the Trumbull County Court of Common Pleas to, answerted]

this Brady designation, and suppression of evidence, question in the negative. To

wit:

“Appellant neither avers nor offers a compelling basis regarding why the

evidence could not have been discovered with reasonable diligence. There is

nothing to indicate that appellant undertook any efforts to discover the

Page 19 of 29

evidence prior to October 2021, when the private investigator who

interviewed the jurors was hired. Although appellant may have been

unaware of the information resulting from the investigator's interviews, it

does not follow he was unavoidably prevented from discovering the evidence

within 120 days ofthe verdict. Accordingly, the trial court properly concluded

appellant had offered "no evidence, much less clear and convincing proof, of

any efforts made to obtain information from jurors in the 120"day period after

the verdict.”

Id. Appendix A, at [*P20] [Italic print added.]

Here, the Ohio Courts, even in light of the presentation of clear material evidence

establishing that an untranscribed communication had with the then deliberating

jury in the jury room by/or through the bailiff was performed in a clandestine fashion

so as to prevent petitioner from becoming aware of such

which also deprived

petitioner of his basis fundamental rights to representation of counsel during a

critical stage of his criminal trial proceedings1,5, and due process right to be personally

present therein - deemed it a requirement for the petitioner to have gained

knowledge of such evidence through some type of bare hook fishing expedition within

the 120 day period after the verdict. In other words, Ohio courts rewards prosecutors

13 Commanding the jury, during deliberation, after learning that two of the jurors remained

undecided, that they “had to stay until they reached a (unanimous^ decision” surely qualified as a

supplemental jury instruction.

Page 20 of 29

who successfully conceal their Brady, and other fundamental Sixth and Fourteenth

Amendment, violations until after a particular post-trial timeliness deadline has

expired- with a win — that is, the continued incarceration of a person whose trial was

fundamentally unfair (and unconstitutional).

The State willful act of unauthorized communication was material where it

;

interfered with the jurors duty to adjudge petitioner’s innocence or guilt based

exclusively from the evidence introduced in open court... Thus, the suppression of

;

the unlawful communication was/is a clear violation of Brady, wherein, had this

favorable (exculpatory) evidence been revealed to the defense as soon as it occurred

then the result of the proceeding would have been different - a new trial mandated.

See, Parker v. Gladden, (1966) 385 U.S.363; Rushen v. Spain, (1983) 464 U.S. 114;

United States v. Cronic, (1984), 466 U.S.648, 659; Fillippon v. Albion Vein Slate Co.,

(1919), 250 U.S. 76; Lewis v. United States, (1892) 146 U.S. 370, 372.

In Banks v. Dretke, 540 U.S. 668, 695 (2004), this Court explained that

criminal defendants have no duty to “scavenge for hints of undisclosed Brady

material. Since the decision in Banks, multiple federal circuit courts and other

state supreme courts have repudiated the imposition of any due-dilige nee

requirement on defendants in Brady cases. See, e.g., United States v. Tavera, 719

F.3d 705, 711-712 (6th Cir.2013); Bracey v. Superintendent Rockview SCI, 986 F.3d

274, 280 (3d Cir.202l); Amado v. Gonzalez, 758 F.3d 1119, 1136-1137 (9th

Cir.2014); State v. Bethel, 167 Ohio St. 3d 362, 369 (2022); State v. Wayerski, 2019

WI 11, 385 Wis.2d 344, 922 N.W.2d 468,

51; People v. Bueno, 218 CO 4 409 P.3d

Page 21 of 29

320, H 39; State v. Reinert, 2018 MT 111, 391 Mont. 263, 419 P.3d 662, t 17, fn. l;

People v. Chenault, 495 Mich. 142, 152, 845 N.W.2d 731 (2014).

An individual prosecutor has a duty to learn of any favorable evidence known

to others acting on the government’s behalf, including the police. Kyles v. Whitley,

514 U.S. 419, 437 (1995).

Ohio Revised Code Ann. 2945.33 — Keeping and conduct of jury after case

submitted - is clear and unambiguous. To wit:

“When a cause is finally submitted the jurors must be kept together in a

convenient place under the charge of an officer until they agree upon a

verdict, or are discharged by the court. The court, except in cases where the

offense charged may be punishable by death, may permit the jurors to

separate during the adjournment of court overnight, under proper cautions,

or under supervision of an officer. Such officer shall not permit a

communication to be made to them, nor make any himself except to ask if

they have agreed upon a verdict, unless he does so by order of the court..”

Id. [Italic print added.]

Moreover, here, as a result of the suppression of said unauthorized

communication (supplemental jury instruction by/or through the bailiff), petitioner

was also unknowingly deprived of his fundamental constitutional rights, under the

Sixth and/or Fourteenth Amendment: (a) to representation of counsel during a

Page 22 of 29

critical stage of his criminal trial! and (b) to be personally present during a critical

stage of his criminal proceedings.

Id. Defendant’s Crim. R. 33(A), pgs. 29-34; and Appellant Brief, pg. 12.

“Is jury re-instruction a ‘critical stage’ under Cronic? While the Supreme

Court has not expressly considered whether jury reinstruction, as it is

understood in this matter, is a critical stage, this court recently determined

- in a decision squarely on-point and founded on the U.S. Supreme Court's

decision in Cronic - that it is. On remand from the Supreme Court, which

had vacated the original appellate opinion in French and remanded for

reconsideration in light of the Supreme Court's decision in Bell v. Cone, 535

U.S. 685, 152 L. Ed. 2d 914, 122 S. Ct. 1843 (2002), this court reiterated its

previous decision holding that jury re-instruction was indeed a ‘critical

stage’ as described in Cronic and that prejudice could be presumed.” Caver

v. Straub, 349 F.3d 340, 349-50(6th Cir. 2003)

But see, Payton v. Crow, 2022 U.S. Dist. LEXIS 119698, (N.D. Okla,)(“The

Supreme Court has not specifically recognized mid-deliberation

communication with a jury as a critical stage of criminal proceedings... And

the Supreme Court has cautioned the lower courts about framing its cases

at ‘a high level of generality.’”) Id.

Page 23 of 29

A STATE COURT HAS DECIDED AN IMPORTANT QUESTION OF FEDERAL

LAW THAT HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT.

Question 2- Where, under a state’s constitution, a convicted defendant is entitled to

a direct appeal as of right: does a Brady violation occur where newly discovered

material evidence clearly establishes that an omission of evidence in the trial

transcript prevented a defendant-appellant from addressing a reversible misconduct

on direct appeal with a supporting record?

“Almost a century ago, the Court held that the Constitution does not require

States to grant appeals as of right to criminal defendants seeking to review

alleged trial court errors. McKane v. Durston, 153 U.S. 684 (1894).

Nonetheless, if a State has created appellate courts as ‘an integral part of the

. . . system for finally adjudicating the guilt or innocence of a defendant,’

Griffin v. Illinois, 351 U.S., at 18, the procedures used in deciding appeals

must comport with the demands of the Due Process and Equal Protection

Clauses of the Constitution. In Griffin itself, a transcript of the trial court

proceedings was a prerequisite to a decision on the merits of an appeal.”

Evitts v. Lucey, 469 U.S: 387, 393 (1985).

A petitioner’s constitutional rights, under the Sixth and Fourteenth

Amendment of the United States Constitution, are violated where inaccuracies in

the transcript adversely affected the outcome of the Criminal proceeding. And, since

the jury which convicted petitioner acted on the basis of the evidence they saw and

heard, rather than on the basis of the written transcript of the trial--which was, of

Page 24 of 29

course, non-existent until after the trial was completed.--this means that a

constitutional violation occurred if the inaccuracies in the transcript adversely

affected appellate review in the state courts.

“If there is no record supporting an appellant's arguments on appeal, the

appellate court presumes the regularity of the trial court's decision and affirms.”

State exrel. Ames v. Portage Cty. Bd. of Comm'rs, 2020-Ohio-3932 (llth App. Dist.)

;

“An accurate transcript is the lynch pin of appellate review”. State v. Ricard,

2008-Ohio-3742, [*P6](llth App. Dist.)

“In the instant case, one of the ultimate issues before the jury concerned

appellant's state of mind at the time of the incident, i.e., [his] mens rea. Since

the determination of whether a person acted

purposely

is typically

predicated upon an interpretation of the circumstances surrounding the

murder, it does not require the application of expert knowledge. Accordingly,

expert opinion testimony concerning the accused's state of mind is not

admissible under Evid. R. 704.”

State v. Poling, 1991 Ohio App. LEXIS 2294, [*27]-[*28](llth App. Dist.)14;

United States v. Finley, 301 F.3d 1000, 1014-15(9th Cir. 2001).15

14 Id. Petitioner’s Crim. R. 33(A), pgs. 19-20.

15 Id. Petitioner’s Crim. R. 33(A), p. 21

Page 25 of 29

THE STATE COURT HAS, ALSO, DECIDED AN IMPORTANT FEDERAL

QUESTION IN A WAY THAT CONFLICTS WITH A RELEVANT DECISION OF

THIS COURT, AND THAT OF SEVERAL UNITED STATES CIRCUIT COURTS.

Question 3: Is Due Process, under the 14th Amendment of the United States

Constitution, offended when a state applies res judicata to a claim supported by newly

discovered material evidence that was either unknown, or previously made

unavailable by the state, to the prisoner during direct appeal?

The Court of Appeals, for the Eleventh Appellate District, application of res

judicata to: (l) the newly discovered material evidence revealed in Juror Cathy

Brunstetter’s affidavit, and (2) the previously unavailable evidence of Judge Logan’s

off the record App. R. 9(E) ruling, conflicts with this Court’s holding in Boumediene

v. Bush, where, therein, this Court pronounced:

“There is evidence from 19th-century American sources indicating that, even

in States that accorded strong res judicata effect to prior adjudications,

habeas courts in this country routinely allowed prisoners to introduce

exculpatory evidence that was either unknown or previously unavailable to

the prisoner.

//* * *

“It also must have the authority to admit and consider relevant exculpatory

evidence that was not introduced during the earlier proceeding. Federal

habeas petitioners long have had the means to supplement the record on

Page 26 of 29

review, even in the postconviction habeas setting. Here that opportunity is

constitutionally required.”

Id. 553 U.S. 723, 780, 786 (2008) [Internal citations omitted, and italic print added.]

The Court of Appeals, for the Eleventh Appellate District, application of res

judicata to newly discovered material evidence is also in direct conflict with

relevant decisions of several United States Court of Appeals, where said material

evidence irrefutably revealed: (l) the state court’s available settlement proced ures

to address the inaccuracies in the record were rendered unfair - by the Judge

Logan’s off the record ruling! and (2) the existence of intentional tampering of the

transcript. To Wit:

If a state fails to afford a fair and adequate procedure for settling transcripts

on which to base such an appeal, or if a state official intentionally alters a

transcript in a way that prejudices a defendant's appeal, the due process

clause of the fourteenth amendment might be violated. [Internal citations

omitted.] To prove such a violation plaintiff would have to show either the

unfairness of available settlement procedures or the existence of intentional

tampering) then, he would have to prove the alleged errors and omissions in

the trial transcript prejudice his statutory right to appeal.”

Burrell v. Swartz, 558 F. Supp. 91, 92 (S.D.N.Y. 1983).16

16 Id. Crim. R. 33(B), p. 6

Page-27 of 29

“A defendant ‘does not have a constitutional right to a totally accurate

transcript of his criminal trial.’ Carpenter v. Vaughn, 296 F.3d 138, 155 (3rd

Cir. 2002), quoting Tedford v. Hepting, 990 F.2d 745 (3rd Cir. 1993). A

defendant's constitutional rights are violated only if the inaccuracies in the

transcript adversely affect the outcome of the criminal proceedings, such as

by preventing or inhibiting meaningful review.”

Dunbar v. Curtis, 2005 U.S. Dist. LEXIS 33561, [*29](E. D. Mich.).17

CONCLUSION

The petition for a writ of certiorari should be granted.

Sincerely submitted,

Felix t). 6rT5WrfJr. #3^-676

CERTIFICATE OF SERVICE

I hereby certify that a true and full copy of the foregoing Petition for Writ of

Certiorari was sent to Trumbull County Prosecutor, at 160 Main St., Warren, Ohio,

44481, via First Class U.S. Mail, on this 27th day of January, 2025.

Felix Of. BroWnJr:

2-676

MAILING DECLARATION

I, Felix O. Brown Jr., do herein swear, affirm, and attest, under the penalty

of perjury, and under the authority of Houston v. Lack, that the original and one

17 Id. Crim. R. 33(A), p. 11

Page 28 of 29

full copy of this Petition for Writ of Certiorari, with attached Appendix, was

surrendered over to the appropriate correctional institution personnel to be mailed,

via certified mail, to the United States Supreme Court at 1 1st Street, Washington,

D.C., 20543-0001, by my placing such in the prison mailbox on 01/27/2025.

Page 29 of 29

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.