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Campbell v. Schweitzer

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

June 7, 2017

ROSCOE T. CAMPBELL, Petitioner,
v.
TOM SCHWEITZER, Warden, Lebanon Correctional Institution, Respondent.

          Timothy S. Black, District Judge

          REPORT AND RECOMMENDATIONS

          MichaeClL Merz, United States Magistrate Judge

         This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the merits. Petitioner Roscoe Campbell filed an original Petition (ECF No. 3) in response to which the Warden filed the State Court Record ("SCR", ECF No. 6) and a Return (ECF No. 7). Magistrate Judge Bowman granted Mr. Campbell's Motion to Amend to add a seventh ground for relief (ECF No. 9, 11). The Warden then filed a Supplemental Return of Writ (ECF No. 16) and Petitioner filed a Response, appropriately docketed by the Clerk as a Reply under Rule 5 of the Rules Governing § 2254 Cases (ECF No. 18).

         The magistrate judge reference in the case has been transferred to the undersigned to help balance the magistrate judge workload in the Western Division.

         Mr. Campbell pleads the following grounds for relief:

Ground One: Petitioner was denied his fundamental right to a fair trial and due process of law as guaranteed by the 5th, 6th, and 14thAmendments of the United States Constitution and Article I, § 16 of the Ohio Constitution when the Prosecution withheld exculpatory evidence both germane and favorable to petitioner's defense.
Ground Two: Trial Court abused its discretion when it denied petitioner his fundamental right to a fair trial and due process of law guaranteed by the 5th and 14th Amendments of the United States Constitution and Article I, § 16, of the Ohio Constitution when it determined there were no Brady materials in the sealed records and denied petitioner's motion for a new trial.
Ground Three: The trial court erred in resentencing petitioner to consecutive prison terms.
Ground Four: Petitioner was deprived of his right to effective assistance of counsel and an impartial jury as guaranteed by the 6thAmendment of the United States Constitution, Article I, and Article III, § 2 of the Ohio Constitution.
Ground Five: Petitioner was deprived of his due process right guaranteed by the 5th, 6th, and 14th Amendments of the United States Constitution and Article I § 16 of the Ohio Constitution when the trial court abused its discretion.
Ground Six: Petitioner was deprived of a fair and impartial trial when prosecution engaged in prejudicial conduct that tainted and/or prejudiced his jury.

(Petition, ECF No. 3-1, PagelD 42-43.)

Ground Seven: Petitioner was denied his fundamental right to due process when the trial court imposed a consecutive sentence grossly disproportionate to the offense.

(Motion to Amend, ECF No. 11-1, PagelD 409.)

         Procedural History

         The Adams County grand jury indicted Campbell on December 6, 2012, on one count of rape of a child under ten and another count of first degree rape. Campbell sought production by subpoena duces tecum of Adams County Children Services documents pertaining to himself and his daughter, T.S. Upon in camera review, the trial judge concluded these records contained no Brady material and he sealed them. Campbell was convicted at trial on both counts and on the under-ten specification. He was sentenced to life imprisonment on the under-ten count, and to a consecutive eight year term on the other rape charge.

         Campbell appealed to the Fourth District Court of Appeals which denied his first two assignments of error, but held as to the third that the trial court had erred in imposing consecutive sentences without making the findings required by Ohio Revised Code § 2929.14(C)(4), and remanded for resentencing. State v. Campbell, 2014-Ohio-3860, 2014 Ohio App. LEXIS 3787 (Aug 26, 2014) ("Campbell F); appellate jurisdiction declined, 142 Ohio St.3d 1410 (2015).

         On remand the trial court reimposed the same sentence. This time the Fourth District affirmed. State v. Campbell, 2016-Ohio-415, 2016 Ohio App. LEXIS 359 (4thDist. Feb. 3, 2016) (“Campbell II), appellate jurisdiction declined, 146 Ohio St.3d 1416 (2016).

         In an application for reopening his direct appeal under Ohio R. App. P. 26(B), Campbell made a claim of ineffective assistance of appellate counsel on December 15, 2014. The Fourth District declined to reopen and the Ohio Supreme Court also denied relief. Campbell then filed the instant habeas corpus petition.

         Analysis

         Ground One: Prosecutorial Misconduct: Withholding Exculpatory Evidence

         Ground Two: Trial Court Error in Denying Brady claim

         Mr. Campbell's first two grounds for relief depend on his claim under Brady v. Maryland, 373 U.S. 83 (1963), that the State violated his constitutional rights by withholding exculpatory information which, under Brady, should have been revealed. The Fourth District Court of Appeals decided these claims in ruling together on Campbell's first two assignments of error:

[*P1] A jury convicted Roscoe T. Campbell of two counts of rape of a minor child less than thirteen years of age and sentenced him accordingly. On appeal Campbell asserts he was denied his right to a fair trial and due process of law when the state failed to disclose exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He also asserts the court erred in failing to grant him a new trial on this basis.
[*P2] Campbell claims that the state violated Brady by failing to disclose that an Adams County Children Services investigation determined another of the victim's claims of sexual abuse by Campbell was "unsubstantiated." Campbell is correct that the state's Brady obligation extends to information held by state or local agencies involved in the investigation or prosecution at issue. But it does not impose a duty on the prosecutor's office to discover and disclose that unrelated allegations were not pursued. The materials and sealed records that Campbell contends contain Brady material address claims by the child that are different from the ones supporting this prosecution. Therefore, the state did not violate Brady by refusing to disclose these materials, nor did the court err in refusing to grant a new trial. We overrule Campbell's first and second assignments of error.
* * * A. Brady & Exculpatory Evidence [*P10]

         In his first assignment of error, Campbell claims he was denied his right to a fair trial and due process of law when the state withheld favorable evidence from him. In his second assignment of error, Campbell contends that the trial court denied him his right to a fair trial and due process of law when it determined that there were no Brady materials in the sealed records and denied his motion for new trial. Because these assignments are interrelated and raise similar issues of law, we consider them jointly. See, e.g., State v. Fox,2012-Ohio-4805, 985 N.E.2d 532, ¶ 28 (4th Dist.) ("Whether evidence is materially exculpatory is a question of law"); State v. Ogle, 4th Dist. Hocking Nos. 11CA29, 11CA32, 12CA2, 12CA11, 12CA12, and 12CA19, 2013-Ohio-3420, ¶ 61-63 (although the abuse-of-discretion standard of review is generally used in reviewing a trial court's ruling denying a motion for new trial, it is inapplicable when material, exculpatory evidence is withheld by the prosecution in a criminal proceeding).

[*P11] "Due process requires that the prosecution provide defendants with any evidence that is favorable to them whenever that evidence is material either to their guilt or punishment." State v. Brown,115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 30, citing Brady,373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215; Fox at ¶ 25 ("A criminal defendant's due process right to a fair trial is violated when the prosecution withholds materially exculpatory evidence"). "Evidence is considered material when 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Brown at ¶ 40, quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87L.Ed.2d481 (1985).

         [*P12] The state claims that the prosecution had no duty under Brady to disclose the subpoenaed materials from the Adams County Children Services because it never possessed these confidential records. As Campbell counters, however, "[p]rosecutors have 'a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.'" (Emphasis sic.) State v. Sanders,92 Ohio St.3d 245, 261, 2001 Ohio 189, 750 N.E.2d 90 (2001), quoting Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Consequently, "[t]he Brady obligation thus extends to information held by state or local agencies involved in the investigation or prosecution at issue." Id., citing United States v. Morris,80 F.3d 1151, 1169 (7th Cir.1996); State v. Cunningham, 10th Dist. Franklin No. 06AP-145, 2006-Ohio-6373, ¶ 8.

[*P13] Nevertheless, "Brady and its prodigy [sic][1] do not 'impos[e] a duty on the prosecutor's office to learn of information possessed by other government agencies that have no involvement in the investigation or prosecution at issue.'" Goffv. Bagley,601 F.3d 445, 476 (6th Cir.2010), quoting Morris at 1169. Consequently, investigations by other agencies on other potential offenses are not subject to disclosure in an unrelated criminal investigation and prosecution of a case. See Goff (petitioner "has pointed to no federal authority requiring a state prosecutor to inquire into the federal prosecution of a witness that is unrelated to the state case and that does not involve any persons acting on behalf of the state prosecutor"); State v. Lacey, 7th Dist. Mahoning No. 11 MA 68, 2012-Ohio-1697, ¶ 29 (no Brady violation in failing to disclose an incident report from a township bordering the county in which the criminal investigation and prosecution occurred); State v. Hessler, 10th Dist. Franklin No. 01AP-1011, 2002-Ohio-3321, ¶ 62 ("the state's failure to contact the involved mental health agencies and the National Guard in order to obtain exculpatory evidence did not violate Brady because the agencies in possession of the challenged evidence are independent agencies who were not acting on the government's behalf in the investigation or prosecution of defendant's case"); Cloud v. United States, N.D.Ohio Nos. 1:03CR486 and 1:07CV3704, 2012 U.S. Dist. LEXIS 52117, 2012 WL 1252957, *2 (Apr. 13, 2012) (memorandum prepared by FBI special agent does not constitute Brady material because it was not possessed by the prosecution or other government agencies involved in the investigation or prosecution at issue).

         [*P14] At oral argument Campbell's counsel contended that the sealed Adams County Children Services records contain evidence of the same incidents for which he was convicted and sentenced in this case. However, a review of the sealed subpoenaed records from the Adams County Children Services indicates that they are not related to the investigation of the rape incidents, which occurred between February 2004 - August 2005 and November 2009-May 2009, that form the basis of this prosecution.

[*P15] Instead, these sealed records primarily relate to a separate incident involving the child, her father, Campbell, and her stepfather, Beau Campbell, that allegedly occurred at her father's house after the rapes at her mother's house at issue in this case. Campbell's reliance on the agency's April 2010 dispositional letter, which he attached to his motion for new trial, is misplaced. That letter relates to the investigation of a sexual abuse incident involving Campbell and Beau Campbell that allegedly occurred in the fall of 2009 at Campbell's home, i.e. after the incidents for which he was indicted and tried.

         [*P16] The sealed records also contain summary pages concerning other allegations made by the child against other individuals, but not specifically against appellant, who appears to be designated by his full name of Roscoe Timothy Campbell by the agency for the allegation concerning him and Beau Campbell. Even assuming that the agency's summary lists appellant by the shorter name of "Tim Campbell, " it lists only neglect allegations against that person, not sexual abuse allegations. In addition the summary in the sealed records indicates other allegations of sexual abuse involving the child, with the agency's disposition that most of them were "substantiated" or that the sexual abuse was "indicated"; but there is one against another individual that was "unsubstantiated." Thus, we do not determine the potential relevance of a series of multiple prior false allegations of sexual misconduct because the sealed records do not contain such information. However, that situation could raise more complex issues concerning the state's obligations under Brady and the applicable provisions of the rape-shield law. Because Campbell does not specifically request an expansion of Kyles,514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490, and Sanders,92 Ohio St.3d 245, 261, 2001 Ohio 189, 750 N.E.2d 90, to require the disclosure of information held by state or local agencies that are not related to the investigation and prosecution of the crimes that are the subject of the specific case, we do not address that issue either.

[*P17] Because the records at issue are unrelated to the state's investigation or prosecution of the rape charges at issue in this case, the trial court correctly ruled that Campbell was not entitled to these confidential records pursuant to Brady; and the trial court also properly denied his motion for new trial based on this claim.

         [*P18] Finally, even if we assume the state's nondisclosure of the alleged Brady evidence was improper, we conclude that this constitutional error was harmless beyond a reasonable doubt. 'A constitutional error can be held harmless if we determine that it was harmless beyond a reasonable doubt.'" State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 123, quoting State v. Conway,108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 78.

[*P19] Ordinarily, in cases in which the appellant complains about the erroneous admission of evidence, the dispositive issue is whether there is a ...

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