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Goldblum v. Warden, Chillicothe Correctional Institution

United States District Court, S.D. Ohio, Western Division

May 16, 2017

KEITH DONALD GOLDBLUM, Petitioner,
v.
WARDEN, Chillicothe Correctional Institution, Respondent.

          Walter Herbert Rice District Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This habeas corpus case is before the Court on Petitioner's Objections[1] (ECF No. 24) to the Magistrate Judge's Report and Recommendations recommending that the Petition for Writ of Habeas Corpus be dismissed with prejudice (ECF No. 16). Judge Rice has recommitted the matter for reconsideration in light of the Objections (ECF No. 25).

         Mr. Goldblum pleaded seven Grounds for Relief, but objects as to the proposed disposition only of Grounds One, Two, and Seven.

         Petitioner Procedurally Defaulted in Grounds One and Two to the Ohio Courts

         Mr. Goldblum's first two grounds for relief are the subject of his first objection. He pleaded:

GROUND 1: Petitioner's due process rights were violated under the 14th Amendment based on insufficient evidence in Counts One, Two, and Three.
Supporting Facts: There were no witnesses and no evidence of invasion of privacy. There was no secretive or surreptitious activity. There was no evidence, including testimony, of the element, “for the purpose of sexually arousing or gratifying (one's) self.”
GROUND 2: Petitioner's due process rights were violated under the 14th Amendment based on insufficient evidence in Counts 4 and 6-14.
Supporting Facts: There was no physical or psychological evidence of abuse; no blood, no injury, no DNA, no psychological markers of abuse. There were no complaints before the February 18, 2011, allegation. The physical condition limitations of the petitioner on February 18, 2011, were inconsistent with the alleged act. There were no witnesses to the allegedly hundreds of assaults over many years, always in the presence of at least one other, including co-complainants.

(Petition, ECF No. 1, PageID 5-7.)

         The Warden asserted these two Grounds for Relief were procedurally defaulted because they had not been presented to the Ohio Supreme Court on direct appeal (Return of Writ, ECF No. 8, PageID 1777-78). In his Reply Goldblum conceded this default but argued it was excused because his conviction is a miscarriage of justice (Reply, ECF No. 15, PageID 1801). The Report found that Mr. Goldblum had presented no new evidence of actual innocence, but instead was requesting the Court to review the evidence presented at trial Jackson v. Virginia, 443 U.S. 307 (1979), and find it is insufficient. Id. at PageID 1802.

         The Report rejected this argument, concluding that under Supreme Court precedent there was no separate “fundamental miscarriage of justice” exception to procedural default doctrine, but that this label was synonymous for the actual innocence gateway exception recognized in Schlup v. Delo, 513 U.S. 298 (1995) and required presentation of “new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial." Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005), quoting Schlup, 513 U.S. at 324 (Report, ECF No. 16, PageID 1810-11).

         In his Objections, Goldblum cites Justice O'Connor's use of the phrase “fundamental miscarriage of justice” in Murray v. Carrier, 477 U.S. 478, 496 (1986). He says nothing about the later Supreme Court decisions cited in the Report which clarify that the miscarriage of justice exception to procedural default requires a strong showing of actual innocence (Report, ECF No. 16, PageID 1810-11, citing Dretke v. Haley, 541 U.S. 386, 393 (2004); Calderon v. Thompson, 523 U.S. 538 (1998); and Sawyer v. Whitley, 505 U.S. ...


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