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Maloney v. Robinson

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

June 13, 2019

LINDRELL E. MALONEY, Petitioner,
v.
NORM ROBINSON, Warden, London Correctional Institution Respondent.

          Walter H. Rice, District Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE

         This habeas corpus case is before the Court on Petitioner's Objections (ECF No. 7) to the Magistrate Judge's Report and Recommendations recommending dismissal (the “Report, ” ECF No. 3). Judge Rice has recommitted the case for reconsideration in light of the Objections (ECF No. 8).

         The Report was filed March 27, 2019, which made Petitioner's Objections due seventeen days later on April 13, 2019, extended to Monday, April 15, 2019, by Fed.R.Civ.P. 6. When Maloney had filed nothing by April 22, 2019, Judge Rice adopted the Report (ECF No. 4). On April 23, 2019, Maloney mailed a request for extension of time (ECF No. 5) which the Magistrate Judge found to be moot because Judge Rice had already filed his Order (ECF No. 6). Nevertheless, Judge Rice had not entered judgement and therefore it is proper to consider the Objections.

         The Report found that Maloney had been convicted of two counts of rape of a child under thirteen and two counts of sexual battery on the same victim, his natural daughter. He was sentenced to an aggregate term of fifteen years to life imprisonment. The convictions were affirmed on appeal. State v. Maloney, No. C.A. 27269, 2018-Ohio-316 (2nd Dist. Jan. 26, 2018), appellate jurisdiction declined, 152 Ohio St.3d 1482 (2018).

         Maloney has filed six objections which will be considered seriatim.

         Objection One: Ineffective Assistance of Trial Counsel: Failure to Communicate Plea Offer

         In his Second Ground for Relief, Maloney claims he received ineffective assistance of trial counsel in a number of ways, one of which was failure to communicate a plea offer. Maloney raised this claim on direct appeal and the Second District rejected it because there was nothing in the record to support it. Maloney, 2018-Ohio-316 ¶ 57. The Report concluded any claim based on material outside the record was procedurally defaulted because such material must “be presented with a petition for post-conviction relief under Ohio Revised Code § 2953.21 and Maloney has not filed such a petition.” (Report, ECF No. 3, PageID 32).

         Maloney objects that he has sworn affidavits from persons to whom attorney Michael Thompson communicated the existence of a plea offer which Maloney claims he only learned about after trial (Objections, ECF No. 7, PageID 39-40). However, he does not claim that he ever filed a petition for post-conviction relief to enter those affidavits into the state court record. He attaches them to his Objections, but he cannot introduce them here for the first time. Cullen v. Pinholster, 563 U.S. 170 (2011). Maloney's First Objection should be overruled.

         Objection Two: Ineffective Assistance of Trial Counsel: Failure to Subpoena Witnesses

         In his Second Objection Maloney complains of Attorney Thompson's failure to subpoena Amy Dallaire, Dr. Charlotte Hanna, and Liz Roode, all of whom he believes would have given dispositive exculpatory testimony. However, this claim is also barred by Maloney's procedural default in failing to file a petition for post-conviction relief: since these witnesses did not testify at trial, what they would have testified to must be presented to the Ohio courts in a petition for post-conviction relief, which Maloney has never filed. The Second Objection should be overruled.

         Third Objection: Brady Violation

         Maloney complains in his Third Objection of the State's failure to provide the results of DNA testing performed by the Ohio Bureau of Criminal Identification in violation of Brady v. Maryland, 373 U.S. 83 (1963). In his Petition, however, he pleaded that his attorney was ineffective for failing to object to the State's disclosure of those results. The Petition does not raise a straight Brady claim and no such claim was raised on direct appeal. Claiming ineffective assistance of trial counsel for failure to raise a Brady claim is not the same thing as accusing the State of misconduct for failing to disclose. Maloney claims he has those results now, but does not say how he obtained them

         Because Maloney did not raise a straight Brady claim either on direct appeal or in his Petition, his ...


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