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Warman v. Buchanan

United States District Court, S.D. Ohio, Eastern Division, Columbus

August 1, 2019

CHARLES F. WARMAN, Petitioner,
v.
TIM BUCHANAN, Warden, Noble Correctional Institution Respondent.

          Sarah D. Morrison District Judge.

          SECOND 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. 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).

         Ground One: Ineffective Assistance of Trial Counsel: Failure to Object to Perjury

         In his 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).

         The 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 this claim.

         Warman 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.

         Second, 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 (1967).

Id. at PageID 297.

         Having 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. ...


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