United States District Court, S.D. Ohio, Eastern Division, Columbus
A. Sargus, Jr. Chief Judge.
REPORT AND RECOMMENDATIONS ON MOTION TO AMEND
FINDINGS AND JUDGMENT
Michael R. Merz United States Magistrate Judge.
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.
Motion is made under Fed.R.Civ.P. 52(b) which permits such a
motion within twenty-eight days of judgment.
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?
made that assertion, however, Lytle points to no record facts
which suggest a finding one way or the other.
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).
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.)
trial judge denied the post-conviction petition in the
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 ...