United States District Court, S.D. Ohio, Western Division, Cincinnati
RODNEY E. DELAWDER, Petitioner,
Warden, Ross Correctional Institution Respondent.
Michael R. Barrett District Judge.
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.
habeas corpus case, brought pro se by Petitioner Rodney
Delawder, is before the Court for adjudication on the Amended
Petition (ECF No. 21), the State Court Record (ECF No. 22),
the Return of Writ (ECF No. 23), and Petitioner's Reply
(ECF No. 24) and Information to the Court (ECF No. 25). The
Magistrate Judge reference in the case was recently
transferred to the undersigned to help balance the Magistrate
Judge workload in the Western Division (ECF No. 26).
February 16, 2013, Petitioner was indicted by the Lawrence
County grand jury on charges of murder with a firearm
specification, improperly discharging a firearm into a
habitation, and felonious assault. The case was tried to a
jury after Petitioner's motion to suppress was denied,
and he was convicted on all counts and sentenced to an
aggregate term of twenty-two years to life imprisonment. He
appealed to the Fourth District Court of Appeals which
affirmed the trial court's judgment. State v.
Delawder, 2015-Ohio-1857, 2015 Ohio App. LEXIS 1774
(4th Dist. May 12, 2015), appellate jurisdiction
declined, 143 Ohio St.3d 1448 (2015). Delawder filed his
Petition for habeas corpus in this Court on July 10, 2016,
and later amended it with court permission. His Amended
Petition pleads the following grounds for relief:
Ground One: Trial court committed reversible
error in denying motion to suppress DNA testing by allowing
the State to present evidence of defendant's DNA on the
shotgun shell, when the State incorrectly advised counsel
that the DNA was contaminated and not tested, when it in fact
was preserved but not tested by the State until day four of
Supporting Facts: The trial court denied a
motion to suppress evidence of DNA taken from a shotgun
shell, where said DNA was not produced by the State until day
four of the trial, and the State had previously lied to
defense counsel and stated that the DNA was not tested
because the shell was contaminated. Not only does this give
rise to a right to suppress, but also is indicative of clear
evidence that the DNA results ultimately used to obtain
conviction was in fact “contaminated” and thus
inadmissible, and accordingly, petitioner Delawder has not
been proven guilty of all elements of the offense beyond a
Ground Two: Trial counsel's refusal to
call expert witnesses and character witnesses, amounted to
ineffectiveness to the extent to deprivation of the right to
a fair trial.
Supporting Facts: The defense counsel was
deficient in failing to call an expert, in light of the above
Ground One. Because an expert could have actually re-examined
the DNA of the shotgun shell, and make the finding that
prosecutions claims all along (until day four of trial) that
the shell was “contaminated”, was actually the
correct conclusion, and therefore, it is inadmissible and
said conviction cannot stand as a matter of law. It was
further ineffectiveness to fail to call character witnesses
for petitioner, which could have attested to character of
Delawder which is contrary to that of a murderer. This was a
[jury]-trial, and the jurors were presented with
“contaminated” evidence, and said jurors did not
even know about the contamination, all due to ineffective
counsel at trial.
(Amended Petition, ECF No. 21, PageID 570, 572.)
Objections to Consideration of the Return of Writ
It was untimely filed.
makes no substantive response to the Return. Instead he
argues the Court should ignore the Return because it was
filed late and the law of the case doctrine bars the
arguments made in the Return (ECF No. 24).
calculation that the Return was filed late is based on his
belief that the time for its filing is controlled by 28
U.S.C. § 2243. The time limits set in that statute are
adjustable by the Court. When she initially ordered the State
to answer, Magistrate Judge Bowman gave the State sixty days
from July 15, 2016, to do so (Order, ECF No. 4, PageID 206).
In lieu of an answer, the State initially filed, within the
time Judge Bowman had allowed and then extended, a Motion to
Dismiss (ECF No. 11). Because a motion to dismiss is a
dispositive motion on which a Magistrate Judge may not make a
final ruling in the absence of consent of the parties, that
Motion was not finally disposed of until August 21, 2017 (ECF
No. 20). The Amended Petition contains a Certificate of
Service that it was mailed June 23, 2017 (ECF No. 21, PageID
581), and a notation that it was scanned at the prison on
June 26, 2017, and received by the Clerk of Court on July 5,
2017, Id. at PageID 565. However, it could not be
formally filed until Judge Barrett had granted permission for
the filing, which occurred on August 21, 2017. Neither Judge
Barrett nor Judge Bowman set a new date for a return of writ,
nor had Petitioner asked the Court to set a new date. The
Return was actually filed November 3, 2017, seventy-four days
after the Amended Petition was formally docketed. Since there
was no set deadline, the Return was not untimely filed.
relies on Curtis v. Perini, 301 F.Supp. 444 (N. D.
Ohio 1968), aff'd, 413 F.2d 546 (6th Cir.
1969). In that case Judge Young refused to consider a return
of writ that was filed several days late. This did not result
in an issuance of the writ, however; Curtis's petition
was dismissed. Petitioner relies on Cristini v.
McKee, 526 F.3d 888 (6th Cir. 2008), and
Dickens v. Jones, 203 F.Supp.2d 354 (E.D. Mich.
2002), for the proposition that any well-pleaded allegations
in a habeas petition not timely opposed must be deemed
admitted. Neither case stands for that proposition.
asserts the Motion to Dismiss was improper in lieu of an
answer because the Court had not ordered it. The Rules
Governing § 2254 Cases do not preclude motions to
dismiss raising affirmative defenses, and this Court
regularly entertains such motions, even in capital cases.
Unlike a civil defendant, the respondent in a habeas case
does not get notice of the Petition until the Court issue an
order for answer or to show cause, so respondents have no
occasion until then to raise defenses which may dispose of
It is Barred by the Law of the Case Doctrine
next argues that Respondent's arguments in the Return of
Writ are barred by the law of the case doctrine because they
were not previously raised in the Motion to Dismiss (Reply,
ECF No. 24, PageID 1290).
the doctrine of law of the case, findings made at one point
in the litigation become the law of the case for subsequent
stages of that same litigation. United States v.
Moored, 38 F.3d 1419, 1421 (6th Cir. 1994),
citing United States v. Bell, 988 F.2d 247, 250
(1st Cir. 1993). "As most commonly defined,
the doctrine [of law of the case] posits that when a court
decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same
case." Arizona v. California, 460 U.S. 605, 618
(1983), citing 1B Moore's Federal Practice
¶0.404 (1982); Patterson v. Haskins, 470 F.3d
645, 660-61 (6th Cir. 2006); United States v.
City of Detroit, 401 F.3d 448, 452 (6th Cir.
2005). “If it is important for courts to treat like
matters alike in different cases, it is indispensable that
they ‘treat the same litigants in the same case the
same way throughout the same dispute.'” United
States v. Charles, 843 F.3d 1142, 1145 (6th
Cir. 2016)(Sutton, J.), quoting Bryan A. Garner, et
al., The Law of JudiciaL Precedent 441 (2016).
argument misapplies the law of the case doctrine. Under law
of the case, earlier judicial decisions in a case are settled
law for later stages of the same case. If this Court had
decided earlier that Respondent's arguments for dismissal
were mistaken, the doctrine would apply to attempted
resurrection later of the same arguments. Law of the case
does not act to bar ...