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Lytle v. Buchanan

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

August 5, 2019

ROBERT LYTLE, JR., Petitioner,
v.
TIM BUCHANAN, Warden, Noble Correctional Institution Respondent.

          Edmund A. Sargus, Jr. Chief Judge.

          REPORT AND RECOMMENDATIONS ON MOTION TO AMEND FINDINGS AND JUDGMENT

          Michael R. Merz United States Magistrate Judge.

         This habeas corpus was dismissed May 25, 2019, and is before the Court on Petitioner's Motion to Amend Findings and Judgment (ECF No. 33). The Warden opposes the Motion (ECF No. 34) and Petitioner has, through counsel, filed a Reply in support (ECF No. 35). As a post-judgment motion, this matter is deemed referred under 28 U.S.C. § 663(b)(3) and requires a report and recommendations.

         The Motion is made under Fed.R.Civ.P. 52(b) which permits such a motion within twenty-eight days of judgment.

         Lytle argues the Court has not made a finding on “whether or not Lytle's first meaningful opportunity to raise his ineffective assistance of [trial] counsel claim was, in fact, his direct appeal.” (Motion, ECF No. 33, PageID 1174.) Lytle asserts this is the “bedrock principle” behind the Martinez v. Ryan, 566 U.S. 1 (2013), and Trevino v. Thaler, 569 U.S. 413 (2013), exception to the procedural default doctrine of Coleman v. Thompson, 501 U.S. 722 (1991). Lytle acknowledges that the Sixth Circuit has never held Martinez and Trevino applicable to Ohio, but he cites cases from other states within the Sixth Circuit where, having held they are applicable, the circuit court has remanded for a more complete record on the issue which underlies applicability, to wit, is post-conviction the first opportunity a defendant has in a particular State to raise an ineffective assistance of trial counsel claim?

         Having made that assertion, however, Lytle points to no record facts which suggest a finding one way or the other.

         To recur to fundamentals, Ohio requires that any claim of ineffective assistance of trial counsel which can be raised and decided on the direct appeal record must be raised on direct appeal or be barred by res judicata. State v. Perry, 10 Ohio St. 2d 175 (1967). On the other hand, an ineffective assistance of trial counsel claim which depends on evidence outside the appellate record must be brought in post-conviction. “[P]resentation of competent, relevant, and material evidence dehors the record may defeat the application of res judicata.” State v. Lawson, 103 Ohio App.3d 307 (12th Dist. 1995).

         In his Petition for Post-Conviction Relief, Lytle asserted none of his post-conviction claims could fairly have been decided on direct appeal (State Court Record, ECF No. 4, PageID 227). He claims he rejected a plea agreement “because . . . Mark Collins led this Defendant to believe that Alibi Witnesses would be subpoenaed to come to court to testify with respects [sic] to the Robbery count in Case No. 2014CR1663, I was home with my mom. (See Sworn Alibi Affidavits). Id. at PageID 231. As he actually pleaded his First Ground for Post-Conviction Relief, it read:

THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WAS VIOLATED ON GROUNDS THAT DEFENSE COUNSEL MISTAKENLY FAILED TO RE-SUBPOENA DEFENSE WITNESSES AND FAILED TO FILE A NOTICE OF ALIBI DEFENSE, AS REQUIRED BY CRIM R. 12.1. DEFENDANT WAS DENIED A FAIR TRIAL.

Id. at PageID 232. Whether or not witnesses were re-subpoenaed or a notice of alibi was filed is a question that could be decided on the direct appeal record. Whether such failures constituted ineffective assistance of trial counsel could possibly have depended, however, on additional evidence outside the direct appeal record, particularly what the alibi witnesses would have testified to. Lytle's principal alibi witness was his mother, Tara Truax, who was subpoenaed for the first setting of the trial, but not re-subpoenaed. Id. at PageID 234. She provided an affidavit giving Lytle an alibi for the time of the first robbery. (See Affidavit at ECF No. 4, PageID 254-55.)

         The trial judge denied the post-conviction petition in the following language:

The Defendant's Motion is DENIED. For all the reasons set forth in the prosecutor's response, including but not limited to the doctrine of res judicata. Furthermore, the transcript of the proceedings completely refutes Defendant's claims of ineffective assistance of counsel.
The Motion is DENIED in its entirety.

(Entry, State Court Record, ECF No. 4, PageID 269.) Thus, to determine the judge's reasons for denying relief, one must look to the prosecution's ...


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