United States District Court, S.D. Ohio, Eastern Division, Columbus
CHARLES F. WARMAN, Petitioner,
TIM BUCHANAN, Warden, Noble Correctional Institution Respondent.
D. Morrison District Judge.
SECOND SUPPLEMENTAL REPORT AND
Michael R. Merz United States Magistrate Judge.
habeas corpus case is before the Court on Petitioner's
Objections (ECF No. 24) and his Motion for Certificate of
Appealability (ECF No. 25). The case was reassigned to
District Judge Morrison upon her taking office (ECF No. 21)
and she has recommitted the case for reconsideration in light
of the objections and motion (ECF No. 26).
One: Ineffective Assistance of Trial Counsel: Failure to
Object to Perjury
First Ground for Relief, Petitioner alleges the key witness
against him, Felicia Warman, perjured herself and trial
counsel should have exposed the perjury. The original Report
found this claim was procedurally defaulted because, although
it could have been raised in a petition for post-conviction
relief under Ohio Revised Code § 2953.21, Warman never
filed such a petition (Report and Recommendations
(“Report'), ECF No. 15, PageID 830). It was not
required to be raised on the original direct appeal because
Warman had the same counsel there as at trial. Id.
However, once the Fifth District granted Warman's
Application to Reopen under Ohio R. App. P. 26(B), his new
appellate attorney could have raised this claim but did not.
Id. at PageID 831. Because it is a claim capable of
being decided on the direct appeal record and not raised
there, it is barred from further consideration in the Ohio
courts by Ohio's res judicata doctrine from
State v. Perry, 10 Ohio St. 2d 175 (1967). The claim
is therefore procedurally defaulted, as Respondent asserts
(Return of Writ, ECF No. 10).
Report also concluded, after extended analysis, that the
procedural default was not excused by ineffective assistance
of appellate counsel (ECF No. 15, PageID 834-41). The
Supplemental Report found that Warman had not attempted to
excuse this procedural default in his Objections (ECF No. 20,
PageID 866). In his most recent Objections, Warman asserts
that “the knowing use of false testimony requires a new
trial if it in any likelihood affected the judgment of the
jury.” (Objections, ECF No. 24, PageID 900, citing
Giglio v. United States, 405 U.S. 150 (1972)). But
that is completely off the point. Warman's First Ground
for Relief accuses his trial attorney of failing to expose
Felicia Warman's false testimony. It has nothing in
substance to do with Warman's claim of prosecutorial
misconduct for use of false testimony, which is Ground Two.
Even if Ground Two were meritorious, its merits would not
excuse a procedural default of Ground One. Warman explains
that he inadvertently failed to cite Brecht v.
Abrahamson, 507 U.S. 619 (1993), and says
“[s]urely this Honorable Court would not deny relief
due from a constitutional violation based on clerical mistake
by a pro se litigant.” Id. Brecht
establishes the standard for determining when a
constitutional error is harmless. Neither prior Report found
a constitutional error as pleaded in Ground One at all.
Instead, the found that Warman had procedurally defaulted on
again argues the merits of his ineffective assistance of
appellate counsel claim for not raising this ineffective
assistance of trial counsel claim (Objections, ECF No. 24,
PageID 901). He notes that the Fifth District Court of
Appeals found this claim also procedurally defaulted, but
Warman asserts “the appellate court did not clearly and
expressly rest on the procedural bar because they proceeded
to discuss the merits.” Id., citing State
v. Warman, No. 16-CA-30 (5th Dist. Jan. 25,
2018) (unreported, copy at State Court Record, ECF No. 9,
PageID 295 et seq.) Examination of that decision shows the
Fifth District rested its decision on two procedural
defaults. First of all, they found Warman's relevant
pleading was a second application to reopen under Ohio App.
R. 26(B) and Ohio law allows only one such application:
In the case at bar, Appellant is again attempting to reopen
the appellate judgment that was rendered by this court.
Appellant's second application to reopen is not well
taken because there is no right to file successive
applications for reopening pursuant to App.R. 26(6).
State v. Richardson, 74 Ohio St.3d 235,
1996-Ohio-258. 658 N.E.2d 273; State v. Cheren, 73
Ohio St.3d 137, 1995-Ohio-28, 652 N.E.2d 707; State v.
Peeples, 73 Ohio St.3d 149, 1995-Ohio-36, 652 N.E.2d
717. See, also, State v. Cooey, 99 Ohio St.3d 345,
2003-Ohio-3914, 792 N.E.2d 720, ¶ 5, quoting
Williams. 99 Ohio St.3d 179, 2003-Ohio-3079, 790
N.E.2d 299, ¶ 10 (“‘Neither App.R. 26(B) nor
State v. Murnahan (1992), 63 Ohio St.3d 60, 584
N.E.2d 1204, provides a criminal defendant the right to file
second or successive applications for reopening'”).
Id. at PageID 296.
they found Ohio's criminal res judicata doctrine
was a bar.
Furthermore, the doctrine of res judicata prohibits this
court from considering Appellant's second application for
reopening because his new claims could have been raised in
his initial application to reopen. See State v.
Cheren, 73 Ohio St.3d 137, 652 N.E.2d 707 (1995);
State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104
Id. at PageID 297.
invoked those two procedural defaults, the Fifth District did
not proceed to discuss the merits of his ineffective
assistance of trial counsel claim, but rather addressed his
assertion that they had not discussed his underlying claim
that the victim was lying. Id. at PageID 297. ...