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Carusone v. Warden, North Central Correctional Institution

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

August 2, 2018

RALPH CARUSONE, Petitioner,
v.
WARDEN, NORTH CENTRAL CORRECTIONAL INSTITUTION, Respondent.

          Black, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge.

         Petitioner has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 with the assistance of counsel. (Doc. 1). This matter is before the Court on the petition, respondent's return of writ, and petitioner's reply. (Docs. 1, 10, 12).

         I. PROCEDURAL HISTORY

         In 2006, the Hamilton County, Ohio, grand jury returned an indictment against petitioner, charging him with one count of purposeful murder in violation of Ohio Rev. Code § 2903.02(A) and one count of felony murder in violation of Ohio Rev. Code § 2903.02(B). (Doc. 9, Ex. 5, Page ID 52-54). The predicate offense for the felony-murder charge was felonious assault. (Id., at PageID 53). Petitioner pled not-guilty. (Id., Ex. 6, at PageID 55). In 2007, a jury convicted petitioner of felony murder, but acquitted him of purposeful murder. (Id., Ex. 15, at PageID 106-07). He was sentenced to a term of fifteen years of imprisonment. (Id., Ex. 17, at PageID 110).

         On December 10, 2008, the Ohio Court of Appeals affirmed petitioner's conviction and sentence on direct appeal, but remanded the case for correction of petitioner's judgment to properly reflect his jail-time credit.[1] (Id., Ex. 21, at PageID 189-96). The Ohio Supreme Court denied further review on April 22, 2009. (Id., Ex. 26, at PageID 243).

         In the meantime, on April 8, 2009, petitioner, through his current habeas counsel, filed a “Motion to Properly Preserve all Physical Evidence.” (Id., Ex. 27, at PageID 244-46). The trial court granted the motion on May 4, 2009. (Id., Ex. 28, at PageID 247). Counsel filed, on July 13, 2010, a “Motion for Release of Photographs” (Id., Ex. 29, at PageID 268), which the trial court granted on July 26, 2010 (Id., Ex. 30, at PageID 269).

         On June 4, 2012, petitioner filed a “Motion for Leave to File Motion for New Trial” on the basis of newly discovered evidence (id., Ex. 31, at PageID 270-83), which the trial court denied without an evidentiary hearing (id., Ex. 34, at PageID 388). On November 15, 2013, the Ohio Court of Appeals reversed the judgment of the trial court, finding that the trial court abused its discretion in denying leave to file a new-trial motion without a hearing. (Id., Ex. 40, at PageID 434-49). The Ohio Supreme Court denied further review on March 26, 2014. (Id., Ex. 43, at PageID 484).

         On September 15, 2014, on remand and following a hearing, the trial court granted petitioner leave to file a motion for new trial. (Id., Ex. 46, at PageID 496). In the motion, filed on September 19, 2014, petitioner argued that he was actually innocent of felony murder based on evidence that he claimed the State had failed to disclose in violation of Brady v. Maryland, 272 U.S. 83 (1963), and other newly discovered evidence that he claimed was unavailable at trial. (Id., Ex. 47, at PageID 497-511). On December 10, 2014, the trial court denied the new-trial motion, finding that the evidence underlying the motion was not material under Brady and/or was available to petitioner before trial through due diligence. (Id., Ex. 50, at PageID 518-31).

         On October 23, 2015, the Ohio Court of Appeals affirmed the trial court's denial of petitioner's motion for a new trial. (Id., Ex. 54, at PageID 586-97). The Ohio Court of Appeals determined that petitioner had not demonstrated either that he was actually innocent of felony murder or that the undisclosed evidence “might reasonably be said to undermine confidence in the jury's verdict finding him guilty of felony murder.” (Id., at PageID 595-97). Petitioner unsuccessfully sought en banc consideration and reconsideration of the Ohio Court of Appeal's decision. (Id., Ex. 60, at PageID 632-34). On May 18, 2016, the Ohio Supreme Court denied further review. (Id., Ex. 64, at PageID 670).

         In July 2016, petitioner commenced the instant habeas corpus action, asserting a single ground for relief:

THE STATE VIOLATED [PETITIONER'S] CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY WITHHOLDING EVIDENCE MATERIAL TO HIS INNOCENCE IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS AS GUARANTEEED BY BRADY.

(Doc. 1, at PageID 18).

         Respondent opposes the petition, arguing that petitioner's claim fails on the merits and is barred by the statute of limitations. (Doc. 10, at PageID 2144-2160). For the reasons below, the Court finds that the petition should be DENIED.

         II. FEDERAL HABEAS STANDARD

         In this federal habeas case, the applicable standard of review governing the adjudication of the constitutional claim that was raised to and decided by the Ohio courts is set forth in 28 U.S.C. § 2254(d). Under that provision, a writ of habeas corpus may not issue with respect to any claim adjudicated on the merits by the state courts unless the adjudication either:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d).

         “A decision is ‘contrary to' clearly established federal law when ‘the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). “A state court's adjudication only results in an ‘unreasonable application' of clearly established federal law when ‘the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'” Id. at 599-600 (quoting Williams, 529 U.S. at 413).

         The statutory standard, established when the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600. As the Sixth Circuit explained in Otte:

Indeed, the Supreme Court has been increasingly vigorous in enforcing AEDPA's standards. See, e.g., Cullen v. Pinholster, [563] U.S. [170], 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (holding that AEDPA limits a federal habeas court to the record before the state court where a claim has been adjudicated on the merits by the state court). It is not enough for us to determine that the state court's determination is incorrect; to grant the writ under this clause, we must hold that the state court's determination is unreasonable. . . . This is a “substantially higher threshold.”. . . To warrant AEDPA deference, a state court's “decision on the merits” does not have to give any explanation for its results, Harrington v. Richter, [562] U.S. [86, 98-99], 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor does it need to cite the ...

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