United States District Court, S.D. Ohio, Eastern Division
ADAM C. POULTON, Petitioner,
TIM BUCHANAN, WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.
Elizabeth P. Deavers, Magistrate Judge
OPINION AND ORDER
A. SARGUS, JR. Chief United States District Judge
April 30, 2018, the Magistrate Judge issued a Report and
Recommendation recommending that the Petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be dismissed. (ECF No. 44.) Petitioner has filed an
Objection to the Magistrate Judge's Report
and Recommendation. (ECF No. 45.) Pursuant to 28 U.S.C.
§ 636(b), this Court has conducted a de novo
review. For the reasons that follow,
Petitioner's Objection (ECF No. 45) is
OVERRULED, The Report and
Recommendation (ECF No. 44) is ADOPTED
and AFFIRMED. This action is hereby
Court DECLINES to issue a certificate of
challenges his convictions after a jury trial in the
Muskingum County Court of Common Pleas on charges of
aggravated robbery, felonious assault, theft, and having a
weapon while under disability, with firearm and repeat
violent offender specifications. He asserts that he was
denied due process by admission of statements he made during
plea negotiations (claim one); that he was denied due process
because die trial court refused to permit his attorney to
withdraw after a breakdown in the attorney-client
relationship (claim two); and that he was denied the
effective assistance of counsel because his attorney failed
to investigate and interview potential witnesses (claim
three). The Magistrate Judge recommended dismissal of the
foregoing claims as without a basis for relief.
objects to the Magistrate Judge's recommendation of
dismissal of his claim of the denial of the effective
assistance of counsel. Specifically, Petitioner complains
that his attorney failed to subpoena Officer Ross, who could
have impeached the testimony of Randy Clapper, who denied
that he had told police that Petitioner requested a ride from
the lighthouse in South Zanesville. Also, Petitioner contends
that Joseph Roth, a co-defendant, would have testified that
Petitioner was innocent, and did not participate in the
crimes charged. Petitioner claims that Detective Hittle
threatened prosecution witnesses into testifying against him.
Petitioner requests this Court's consideration of the
Affidavits of Jim Barnard, Amy Poulton, and Linda Sowers,
which he has attached, in support. Petitioner states that the
state courts must have lost or misplaced Barnard's
Affidavit, and that and that he could not earlier obtain
Poulton's Affidavit in support.
Petitioner does not refer to, and the Court is unable to
locate, any record documentation indicating that Officer Ross
would have impeached Clapper's trial testimony. The
record reflects, however, that Petitioner first asserted that
his attorney performed in a constitutionally ineffective
manner by failing to subpoena Officer Ross in his post
conviction appeal, see Merit Brief of Appellant (ECF
No. 40-1, PAGEID # 1329), but he did not raise it in the
trial court below, and the state appellate court did not
address the issue. See State v. Poulton, No.
CT2016-0023, 2016 WL 90630 (Ohio App. 5th Dist. March 14,
2014). Petitioner therefore has waived this claim for review
in these proceedings. SeeAdamsv, Burton, No.
16-1476, 2016 WL 661219, at *2 (6th Cir. 2016) (petitioner
procedurally defaulted his claim by failing to raise it in
the trial or intermediate appellate court); Johnson v.
Parker, No. 3:08-cv-806, 2011 WL 4625579, at *9 (M.D.
Tenn. Sept. 30, 2011) (claims waived due to petitioner's
failure to comply with state procedural rules for preserving
claims in the state trial court). Additionally, Petitioner
failed to raise the issue on direct appeal, where he was
represented by new counsel. Petitioner likewise has
procedurally defaulted the claim on this basis. See
Johnson v. Warden, Ross Correctional Inst., No.
2;17-cv-0121, 2018 WL 388079, at *26 (S.D. Ohio Jan. 11,
2018) (the failure to raise on-the-record claims on direct
appeal waives them for purposes of federal habeas corpus
review). The record does not indicate that Petitioner can
establish cause and prejudice to excuse his procedural
default. See Murray v. Carrier, 477 U.S. 478, 485
(1986). Further, in view of the substantial evidence of guilt
- including the testimony of Amy Johnson, Chad Bocook, and
Petitioner's own admission to police - the record does
not indicate that this proposed impeachment testimony would
have assisted the defense. Additionally, this Court cannot
consider the Affidavits of Barnard or Poulton, because
consideration of Petitioner's claim is limited to the
record presented to the state appellate court. Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (review under 28
U.S.C. § 2254(d) is limited to the record that was
before the state court that adjudicated the claim on the
merits). Nothing in the record supports Petitioner's
allegation that state actors lost or misplaced Barnard's
Affidavit. To the contrary, the record does not indicate that
Petitioner referred to Barnard's proposed testimony in
his post conviction petition, or in any subsequent filings
related to that action. (See ECF Nos. 33, 39, 41,
43, 45, 48, 50, 53.) The record likewise does not indicate
that any potential defense witnesses or further investigation
would have assisted the defense such that his attorney
performed in a constitutionally ineffective manner under the
test set forth in Strickland v, Washington,
466 U.S. 668 (1984). The Affidavit of Amy Poulton
recanting her trial testimony is dated March 6, 2018 (ECF No.
43-1, PAGEID # 1480). In it, Poulton says that she lied when
she testified against Petitioner, because she was threatened
by police, and afraid she would lose her children, who are
now adults. (PAGEID # 1479.) That being the case,
counsel did not perform in a constitutionally ineffective
manner by failing to earlier obtain her recantation of her
testimony against Petitioner. In any event, courts view these
types of recanting affidavits with suspicion:
Recantation testimony, particularly when it is belatedly
submitted, is considered "of httle value" and
"viewed with great suspicion." See Carter v.
Mitchell, 443 F.3d 517, 539 (6th Cir. 2006) (and cases
cited therein). See also Herrera v Collins,
506 U.S. 390, 423 (1993) (O'Connor, J., concurring)
(holding that the petitioner had failed to demonstrate a
credible claim of actual innocence "under the demanding
Schlup standard" given that "recanting
affidavits are always viewed with 'extreme suspicion'
" and "new statements from witnesses years after
the crime are inherently suspect" and "are to be
viewed with a 'degree of skepticism' ");
Byrd v. Collins, 209 F.3d 486, 508 n. 16 (6th Cir.
2OOO)(" 'Recanting affidavits and witnesses are
viewed with extreme suspicion by the courts.' ")
(quoting Spence v. Johnson, 80 F.3d 989, 997 (5th
Cir. 1996))- Gray v Hudson, 2008 WL
1995362, at *7 (N.D. Ohio May 5, 2008) (Boyko, J.)(stating
that "the inherent suspiciousness of the recanting
affidavits [of prosecution witnesses] coupled with their late
filing more than three years after conviction and the lack of
explanation as to why they were filed so late" failed to
demonstrate "new reliable evidence" of the
petitioner's actual innocence); Cleveland, 65
F.Supp.3d at 523 ("[A] recantation must be looked upon
with the utmost suspicion")(quoting Ortega v.
Duncan, 333 F.3d 102, 107 (2nd Cir. 2003)). This is
particularly so where a "recantation is repudiated and a
new one substituted." Campbell v. Curtis, 2008
WL 4104346 at *6 (E.D. Mich. Aug. 29, 2008) (quoting U.S.
v. Brown, 417 F.Supp. 340, 343 (E.D. Pa. 1976)).
Davis v. Bradshaw, No. 1:14-cv-2854, 2016 WL
8257676, at *29 (N.D. Ohio June 16, 2016).
foregoing reasons, and for the reasons detailed in the
Magistrate Judge's Report and Recommendation,
Petitioner's Objection (ECF No. 45) is
OVERRULED. The Report and Recommendation (ECF No.
44) is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court now considers
whether to issue a certificate of appealability. "In
contrast to an ordinary civil litigant, a state prisoner who
seeks a writ of habeas corpus in federal court holds no
automatic right to appeal from an adverse decision by a
district court." Jordan v. Fisher, ___
U.S. ___. ___, 135 S.Ct. 2647, 2650 (2015);
28 U.S.C. § 2253(c)(1) (requiring a habeas petitioner to
obtain a certificate of appealability in order to appeal).
claim has been denied on the merits, a certificate of
appealability may issue only if the petitioner "has made
a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). To make a
substantial showing of the denial of a constitutional right,
a petitioner must show "that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were 'adequate to deserve encouragement
to proceed further.'" Stack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelte, 463 U.S. 880, 893, n.4 (1983)). When a
claim has been denied on procedural grounds,
a certificate of appealability may issue if the petitioner
establishes that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling. Id.
Court is not persuaded that reasonable jurists would debate
the dismissal of Petitioner's claims as waived and
without merit. The Court therefore DECLINES
to issue a certificate of appealability.
Clerk is DIRECTED to enter ...