United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
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).
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).
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. (Id., Ex. 21, at PageID 189-96).
The Ohio Supreme Court denied further review on April 22,
2009. (Id., Ex. 26, at PageID 243).
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).
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).
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).
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).
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).
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.
FEDERAL HABEAS STANDARD
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
(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).
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.
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,  U.S. , 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,  U.S. [86, 98-99], 131 S.Ct. 770, 784, 178
L.Ed.2d 624 (2011), nor does it need to cite the ...