SUPPLEMENTAL REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, Magistrate Judge.
Petitioner Aaron Scott brought this habeas corpus action pro se under 28 U.S.C. § 2254 to seek release from his sentence of twenty-five years to life imprisonment upon his conviction in the Montgomery County Common Pleas Court for murder and aggravated robbery. After the pleadings were complete, the Magistrate Judge recommended dismissal with prejudice (the "Report, " Doc. No. 25). Petitioner has objected (Doc. No. 27) and Judge Rice has recommitted the case for reconsideration in light of the Objections (Doc. No. 28).
Ground One: Confrontation Clause
In his First Ground for Relief, Scott asserts his Confrontation Clause rights were violated when the trial court refused to permit his counsel to cross-examine (1) the State's serology expert, Amy Rismiller, about "contamination of [DNA] samples for which she had been placed on probation" and (2) State's witness Lona Westbrook "about any plea deal she might have entered into and/or whether she expected something in return when she made her statement to the police." (Petition, Doc. No. 1, PageID 34.) The Report noted that the Second District Court of Appeals had decided these claims on the merits and concluded that that court's decision was entitled to deference under 28 U.S.C. § 2254(d)(1) because it was not an objectively unreasonable application of clearly established Supreme Court law (Report, Doc. No. 25, PageID 5170).
Among these three restrictions on defense counsel, the court of appeals found two constitutional violations. The defense should have been permitted to cross-examine Ms. Rismiller about contamination of DNA samples in a prior case, even though she did not testify about the DNA in this case. State v. Scott, 2010 Ohio 1919, 2010 Ohio App. LEXIS 1576, ¶ 42 (2nd Dist. Apr. 30, 2010). And the defense should have been permitted to cross-examine Ms. Westbrook about her subjective expectation of any benefit in her pending drug cases from her testimony against Scott. Id. at ¶ 32. Because it had been established at a pretrial in limine hearing that there was no plea deal, there was, however, no good faith basis to cross-examine Westbrook on that issue and no Confrontation Clause violation in prohibiting the crossexamination. Id.
The court of appeals found the two violations harmless error because of the strength of the case against Scott, which it summarized as follows:
[O]n the whole, the evidence against Scott was quite strong. His DNA and the victim's blood were found on a red t-shirt discarded in Scott's apartment complex. Scott claimed that he had left this tshirt on his patio, where it could have been stolen, because it was moldy, but the DNA analyst testified that there was no mold on the t-shirt. Scott's saliva was also found on Stapleton's shirt. A knife that matched a set at Scott's apartment was found at the murder scene. Westbrook and her son testified that Scott came to their apartment around the time of the murder, breathless and sweaty, and asked for a new shirt. According to the son, Scott was also covered in blood. A short time later, when the police responded to the scene, Scott suddenly disappeared while walking in the apartment complex with Westbrook.
Id. at ¶ 43. The Report defers to the court of appeals harmless error finding.
Scott makes a number of objections to the harmlessness finding. The Report notes that Rismiller did not testify about the DNA results in this case, so impeaching here about her problems with handling DNA in another case would not have impeached the DNA results in this case (Report, Doc. No. 25, PageID 5169-70). Scott objects that the trial court "certified... [her] as an expert in the fields of Forensic Science Serology and DNA." (Objections, Doc. No. 27, PageID 5193, quoting Trial Tr., Doc. No. 19-4, PageID 3853.) It is accurate that the trial court accepted Ms. Rismiller as an expert in serology and DNA on motion of the State and with no objection by defense. Id. However, she did not testify about DNA in this case, but only about the serology. She was subject to cross-examination about her handling of the physical evidence in this case, and Scott does not suggest any way in which her problems with DNA in another case would have been relevant (i.e., would have made it less likely that it was Scott's DNA which was found) in this case.
Scott also argues that the jury should have been allowed to hear what Ms. Westbrook would have said about her motivation to testify against Scott. He argues at some length about what her motivation would have been because of being under indictment at the time. However, he has no proof that she would have admitted a motivation to help the police in hope she would get a benefit with her pending case. The issue was thoroughly explored at the motion in limine hearing where Westbrook was examined under oath and denied any such motivation. She may not have been telling the truth, but there is no evidence she would not have given the same testimony at trial. Scott would then have been stuck with her denial because, as the trial judge concluded, Scott's counsel knew "ahead of time you're not going to be able to disprove her denial from anybody else involved in the case." Quoted at ¶ 27 of the court of appeals' decision. While she certainly had reasons "not to disappoint the prosecutor's office" or to "curry favor with law enforcement, " Judge Langer thoroughly explored at the motion in limine hearing whether there had been any communication with her by the police or the prosecutor about any expectation of favorable treatment and there was no testimony to support any such communication. (Objections, Doc. No. 27, PageID 5196) The most that Scott has is a hope that Westbrook would have changed her testimony from the in limine hearing and that hope is not enough to show that prohibiting the question was not harmless error.
The Report was cursory in noting the strength of the case against Scott aside from the Westbrook testimony (Report, Doc. No. 25, PageID 5169-70). The court of appeal summarized the evidence against Scott as follows:
[*P2] The State's evidence established the following facts:
[*P3] On the evening on May 21, 2004, Chad Stapleton and Greg Credlebaugh got together to watch a Reds game on television at Credlebaugh's apartment and at the Centerville Inn, where they drank beer until about 1:00 a.m. They then walked back to Credlebaugh's nearby apartment. Credlebaugh testified that Stapleton left the apartment at 1:10 or 1:15 a.m. and that Stapleton's drive home would have taken about twelve minutes.
[*P4] Stapleton lived with his girlfriend, Mara Jones, at the Barclay Square apartment complex in Moraine. In the early morning hours of May 22, 2004, Jones heard Stapleton screaming her name from the parking lot of the apartment complex. Jones went outside and saw Stapleton near the parking lot, being held with his back against a wall by a man with short brown hair and wearing a red t-shirt. Stapleton told her to call the police, which she did. The man in the red t-shirt ran across Lamme Road, and Stapleton collapsed to the ground.
[*P5] Stapleton died a short time later. He had been stabbed several times, including a fatal wound to his chest. His wallet was not found on his body. In the nearby parking lot, the door to Stapleton's car door was open; blood was on Stapleton's car and a car parked next to it. Keys, a FILA baseball hat, a broken utility knife, money, and a pocket ripped from Stapleton's shirt were also found near his car.
[*P6] Jones and a neighbor who witnessed some of the events in the parking lot described the person who had held Stapleton against the wall as a white male with very short hair, 5'9" or 5'10" tall, approximately 140 pounds, wearing a red t-shirt and jeans or dark shorts. The neighbor also saw the man drive by the complex as a passenger in a vehicle a short time later. After daybreak, a red shirt with blood on it was found on the ground at the Cobblegate Apartments, which are across Lamme Road from the Barclay Square Apartments.
[*P7] In May 2004, Lona Westbrook lived in the Cobblegate Apartments. She had known Aaron Scott for four years at that time. According to Westbrook, Scott came to her apartment at 1:00 or 2:00 a.m. on May 22, 2004, sweating, breathing heavily, and talking fast. Scott claimed that someone had tried to beat him up, and he asked Westbrook to walk him home. He also asked for a new shirt. Westbrook agreed to walk Scott home but, while they were walking, he disappeared shortly after they saw police cruisers nearby. Westbrook did not know where Scott had gone. After he disappeared, Westbrook continued to Scott's apartment, angry that he had awoken her. Scott's roommate and partner, John Jackson, Jr., was at the apartment, but Scott was not.
[*P8] Westbrook heard about the homicide the next morning, but she did not talk to the police until seventeen months later when a police officer knocked on her door to ask about it. She said that Scott did not fit the initial description that she heard of the suspect. When Westbrook initially talked to the police, she stated that Scott had been covered in blood when he came to her apartment, but at trial she testified that he had not been covered in blood.
Westbrook's adult son, who was also present at the apartment in the early morning hours of May 22, 2004, testified that Scott had ...