United States District Court, S.D. Ohio, Western Division, Cincinnati
ROSCOE T. CAMPBELL, Petitioner,
TOM SCHWEITZER, Warden, Lebanon Correctional Institution, Respondent.
Timothy S. Black, District Judge
REPORT AND RECOMMENDATIONS
MichaeClL Merz, United States Magistrate Judge
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
magistrate judge reference in the case has been transferred
to the undersigned to help balance the magistrate judge
workload in the Western Division.
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
(Motion to Amend, ECF No. 11-1, PagelD 409.)
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.
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
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).
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
One: Prosecutorial Misconduct: Withholding Exculpatory
Two: Trial Court Error in Denying Brady
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
[*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
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).
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] 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).
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.
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.
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