The opinion of the court was delivered by: District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
This matter is before the Court on Petitioner Michael Webb's Second Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus By a Person in State Custody ("Second Amended Petition") (doc. 41); Magistrate Judge Merz's Report and Recommendation on the Second Amended Petition ("R&R") (doc. 74) issued on March 4, 2005; Petitioner Webb's Objections to the R&R ("First Objections") (doc. 79); and the Warden's Memorandum in Response to Petitioner's First Objections (doc. 82); as well as Judge Merz's Supplemental Report and Recommendation ("Supplemental R&R") (doc. 83) issued August 9, 2005; Petitioner Webb's Objections to the Supplemental R&R ("Second Objections") (doc. 85); and the Warden's Memorandum in Response to Petitioner's Second Objections (doc. 86).
In both his R&R and Supplemental R&R, Judge Merz recommended that this Court deny Webb's habeas petition. Having reviewed the case, the Court hereby OVERRULES Petitioner Webb's First Objections and Second Objections; ADOPTS both Judge Merz's R&R as modified by his Supplemental R&R, and his Supplemental R&R, and DENIES WITH PREJUDICE Petitioner Webb's Second Amended Petition.
I. FACTUAL AND PROCEDURAL HISTORY
The factual history of the events surrounding Petitoner Webb's conviction are set forth at length by Magistrate Judge Merz in the R&R. It suffices here to summarize that Webb was accused of intentionally setting fire to his family residence in the early morning hours of November 21, 1990, at which time his wife, two daughters, and two sons were at home. Webb's son, three year-old Michael Patrick Webb died in the blaze. Following a jury trial, Petitioner Webb was convicted on June 25, 1991 of two counts of aggravated murder with death penalty specifications, four counts of attempted aggravated murder, and six counts of aggravated arson. The jury recommended a sentence of death on the two counts of aggravated murder and the trial court adopted the recommended sentence on July 18, 1991.
The full procedural history of this case is also set forth by Magistrate Judge Merz in the R&R. Petitioner Webb pled fifteen claims for relief in his habeas petition. The Warden has contended that a number of Petitioner Webb's claims are procedurally barred, but concedes that Petitioner Webb has exhausted his remedies in state court. In the R&R, Magistrate Judge Merz recommended denying Petitioner's claims and dismissing the habeas petition with prejudice. This Court reviews de novo those portions of Magistrate Judge Merz's R&R and Supplemental R&R to which Petitioner Webb objected. See 28 U.S.C. § 636(b)(1)(C). Petitioner Webb has stated that he raised no objections to Magistrate Judge Merz's proposed disposition of the Third, Seventh, Ninth, Eleventh, Thirteenth, and Fourteenth Claims. (Doc. 79 at 5.)*fn1 Thus, the Court need not review Magistrate Judge Merz's findings as to the those claims. See 28 U.S.C. § 636(b)(1)(C).
A. First and Fourth Claims for Relief
Petitioner Webb's First and Fourth Claims involved various instances of alleged prosecutorial misconduct during the opening statement, presentation of evidence, and final argument of the culpability portion of his trial, and also during the penalty or mitigation phase of his trial. In the R&R, Magistrate Judge Merz held that both claims should be denied as procedurally defaulted based upon his same conclusion in his earlier Report and Recommendations On Petitioner Webb's Motion for Partial Summary Judgment ("R&R on Summary Judgment") (doc. 35), which this Court adopted (doc. 36). In his First Objections, however, Petitioner Webb argued that Magistrate Judge Merz had erred in that finding in the R&R on Summary Judgment, and so had erred again in the R&R. Petitioner Webb argued that, as such, this Court should consider "the following errors on direct appeal which could be broadly construed as claims of prosecutorial misconduct:
Comment on Petitioner's failure to testify in closing argument at the guilt phase (first assignment of error); Taunting the Petitioner (first assignment of error); Argument in the penalty phase that the terror and horror felt by the victims was an aggravating circumstance (third assignment of error); Argument for the death penalty after having offered a non-capital plea bargain (tenth assignment of error); and Adducing evidence of the bad character of Petitioner (sixteenth assignment of error). (Doc. 79 at 12.)
In the Supplemental R&R, Magistrate Judge Merz held that Petitioner Webb was correct that the R&R was in error as to the First and Fourth Claims being procedurally defaulted, and that those claims were in fact preserved for review. Magistrate Judge Merz then reviewed on the merits Petitioner Webb's sub-claims of "prosecutorial misconduct based on allegations of 1) comments on the Petitioner's failure to testify, 2) taunting of Petitioner, and 3) adducing evidence of the bad character of the defendant."*fn2 (Doc. 83 at 2.) After such review, Magistrate Judge Merz concluded that Petitioner Webb's claims were without merit.
In his Second Objections, Petitioner Webb again objected to Magistrate Judge Merz's recommendations regarding his First and Fourth Claims. Petitioner Webb's argument as to these claims in the Second Objections appears to be limited to his subclaims that the prosecution improperly commented on Webb's failure to testify and that a prosecutor taunted Webb during a break in the proceedings. Specifically, Petitioner Webb alleged that during the lunch recess between the state's initial closing argument the defense's closing argument, the prosecutor commented to Webb, outside the presence of his counsel, that he couldn't believe Petitioner Webb would stoop so low as to blame his daughters. Petitioner Webb had raised this incident in his second proposition of law on his appeal to the Ohio Supreme Court. State v. Webb, 70 Ohio St.3d 325, 329, 632 N.E. 2d 1023, 1029 (Ohio 1994). The Ohio Supreme Court rejected the argument that the prosecutor engaged in misconduct by taunting Webb into "interrupting the prosecutor's argument, then used the interruption as an excuse to comment on Webb's failure to testify." 70 Ohio St.3d at 329. Although Magistrate Judge Merz did not, in the Supplemental R&R, specifically address the prosecutor's alleged comments to Webb during the lunch break, it appears that Magistrate Judge Merz nevertheless considered Webb's allegation regarding taunting, because Magistrate Judge Merz mentioned both Webb's claim that the prosecutor taunted him into speaking and the Ohio Supreme Court's analysis, described above, of Webb's prosecutorial misconduct claim. (Doc. 83 at 4, 6-7.) Magistrate Judge Merz found that the Ohio Supreme Court's opinion was neither unreasonable nor contrary to federal law. This Court agrees. Petitioner Webb's objection raises no other new point, nor any legal or factual error in Magistrate Judge Merz's analysis; he simply disagrees with the outcome. This Court therefore finds upon de novo review that Magistrate Judge Merz's analysis in the Supplemental R&R of Petitioner Webb's First and Fourth claims regarding prosecutorial misconduct was correct. The Courtoverrules Petitioner Webb's objections and DENIES the First and Fourth Claims for Relief.
B. Second Claim for Relief
In his second claim for relief, Petitioner Webb states almost thirty issues he contends demonstrate that he was denied the effective assistance of his trial counsel during the culpability phase of trial. Petitioner Webb admits that he did not raise these issues on direct appeal, but rather raised them for the first time in the post-conviction relief proceedings ("PCRP") as part of his eighteenth, twentieth, and twenty-first claims. (Doc. #17, Appx. To Return of Writ, Tab S at 55-56, 60-66.)
The trial court denied the eighteenth and twenty-first PCRP claims as barred by res judicata and on the merits. (Id., Tab U at 24-27; 29-30.) The trial court denied the twentieth PCRP claim as barred by res judicata to the extent that Petitioner Webb relied on the record for the claim. (Id., Tab U at 28.) The trial court denied the twentieth claim on the merits to the extent that Petitioner Webb relied on the de hors evidence, a letter from Larry Dehus to his attorney, regarding the point of origin of the fire. (Id., Tab U at 29.) It also denied Petitioner Webb's motion for summary judgment, filed on the issue of the ineffective assistance of counsel and supported by four additional affidavits. (Id., Tab U at 44-55.) The court of appeals denied all three PCRP claims as barred by res judicata and upheld the denial of summary judgment. (Id., Tab X at 12-14.) It stated that the dehors evidence offered did not contain new information or evidence that was not available at the time of the trial. (Id.)
In these proceedings, Magistrate Judge Merz held in the R&R (doc. 74) and the Supplemental R&R (doc. 83) that Petitioner Webb's Second Claim was barred as procedurally defaulted. Magistrate Judge Merz pointed out that he had found previously in the R&R on Summary Judgment that a federal court could not re-examine the Ohio courts' application of their own res judicata doctrine. (Doc. 35 at 54.) Petitioner Webb did not file objections to the R&R on Summary Judgment and this Court issued an Order Adopting the R&R on Summary Judgment (doc. 36). Petitioner Webb now argues that habeas review should not be precluded because the state court erred in holding that the claims were barred by res judicata to the extent that he had submitted evidence dehors the record. (Doc. 79 at 13-14.)
A review of Ohio res judicata is necessary. The Ohio Supreme Court set forth Ohio's res judicata rule in 1967 as follows:
7. Constitutional issues cannot be considered in post-conviction proceedings under Section 2953.21 et seq., Revised Code, where they have already been or could have been fully litigated by the prisoner while represented by counsel, either before his judgment of conviction or on direct ...