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McNeill v. Bagley

United States District Court, N.D. Ohio, Eastern Division

August 26, 2019

Freddie McNeill, Jr., Petitioner,
v.
Margaret Bagley, Warden, Respondent.

          MEMORANDUM OF OPINION AND ORDER

          Dan Aaron Polster, United States District Judge

         Introduction

         Petitioner Freddie McNeill, Jr., was convicted and sentenced to death in an Ohio state court for the aggravated murder of Blake Fulton. McNeill has now filed a petition and amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions and sentence. (Docs. 21, 137.)[1] Respondent Warden Margaret Bagley has filed a return of writ to the amended petition. (Doc. 141.) McNeill has filed an amended traverse. (Doc. 144.) And Respondent has filed a sur-reply. (Doc. 145.) For the reasons stated below, the Court denies McNeill's amended petition.

         Factual History

         The Ohio Supreme Court set forth the following facts underlying McNeill's convictions:

On the evening of May 13, 1994, Blake Fulton and Robert Rushinsky drove about the city of Lorain seeking to purchase crack cocaine. Seeing several men they believed to be crack dealers at the corner of Massachusetts Avenue and G Street, the two stopped. As was customary, the first dealer to the car, McNeill, got the sale.
Fulton and Rushinsky knew McNeill from prior drug transactions. Rushinsky, who was riding in the front passenger seat of the two-door car, let McNeill into the back. As McNeill directed, Fulton drove south on Massachusetts Avenue and headed for McNeill's residence, where McNeill stated he kept the crack cocaine. As they drove, McNeill asked Fulton for twenty dollars. Fulton replied: “No. * * * You know how it works. I want to see [the crack] first.” Fulton and McNeill continued to argue about the money. When the trio reached McNeill's house, Fulton stopped the car. McNeill produced a gun, saying, “This is a stickup, ” and “I want the money.” Fulton jumped from the car and ordered McNeill out. As Rushinsky leaned forward and opened his door, McNeill grabbed the keys from the ignition and jumped out.
McNeill aimed his gun at Rushinsky and asked if he had any money. Rushinsky replied he had none. McNeill then pointed the gun at Fulton, saying, “You don't think this gun's real?” and “You don't think this thing's loaded?” Fulton told McNeill to return his keys. After further argument, McNeill walked away. Fulton, who was a locksmith, got into his car and attempted to start it using his locksmith's tools.
While Fulton was trying to start the car, McNeill returned. McNeill put his gun to Fulton's head, said, “Played me for a bitch, ” and shot Fulton. Fulton died several hours later.

State v. McNeill, 83 Ohio St.3d 438, 438-39 (Ohio 1998).

         Procedural Background

         A. State-Court Proceedings

         1. Trial Court

         In May 1994, the Lorain County Grand Jury indicted McNeill for aggravated murder under Ohio Rev. Code § 2903.01(B) with a firearm specification and a death penalty specification that the murder occurred in the course of an aggravated robbery. (Doc. 116-1 at 14.)[2] McNeill, represented by Joseph Grunda and Robert Nagy, entered pleas of not guilty to all charges. (Id. at 19.)

         McNeill's trial began on April 10, 1995. (See Doc. 117-1 at 63.) He was still represented by Attorneys Grunda and Nagy. (See id.) On April 14, 1995, the jury convicted McNeill of aggravated murder and both specifications. (Doc. 116-1 at 184-85.) The penalty phase of the trial began on May 1, 1995, and on May 3, 1995, the jury recommended that McNeill be sentenced to death. (Id. at 178-79.) On May 12, 1995, the trial court accepted the jury's recommendation and imposed a death sentence. (See id. at 184-85.)

         2. Direct Appeal

         On June 21, 1995, McNeill, represented by new counsel David Bodiker, Kevin Fahey, and Joseph Wilhelm of the Office of the Ohio Public Defender, timely appealed his convictions and sentence to the Ninth Judicial District Court of Appeals. (Id. at 209-10.)

         In his appellate brief, he raised sixteen assignments of error, stated as follows:

1. Mr. McNeill was wrongfully convicted of violating Ohio Rev. Code Ann. § 2903.01(B) (Anderson 1996) and of the specification of violating O.R.C. § 2929.04(A)(7), in violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 9 and 16 of the Ohio Constitution.
2. There was insufficient evidence of aggravated robbery to support the conviction, in violation of the Eighth and Fourteenth Amendments to the United States Constitution, Article I, §§ 9 and 16 of the Ohio Constitution, and Ohio Rev. Code Ann. §§ 2901.05(A), 2903.01(B), and 2929.04(A)(7) (Anderson 1996).
3. Appellant was denied his rights to a fair trial, to due process and to a reliable death sentence in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when the State presented and the trial court admitted prejudicial “other acts” evidence.
4. State misconduct during the trial denied Mr. McNeill his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, as well Article I, §§ 2, 9, 10, and 16 of the Ohio Constitution.
5. The trial court violated Appellant McNeill's rights to the assistance of counsel and to due process as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution when it denied Appellant's motion to dismiss trial counsel.
6. Appellant McNeill's right to the effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution was violated.
7. The trial court erred when it ruled that [redacted names] were competent to testify at the trial phase. This error violated Appellant McNeill's rights to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution, to due process under the Fifth and Fourteenth Amendments to the United States Constitution and to a reliable capital sentencing determination under the Eighth and Fourteenth Amendments to the United States Constitution.
8. The trial court erred when it death-qualified Appellant McNeill's jury. The death qualification of Appellant's jury violated his right to a fair and impartial sentencing jury as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Appellant's right to a reliable capital sentencing determination under the Eighth and Fourteenth Amendments to the United States Constitution.
9. The trial court erred to Appellant McNeill's prejudice because it removed for cause jurors with concerns about capital punishment under an incorrect standard. Appellant's right to due process under the Fourteenth Amendment to the United States Constitution was violated.
10. Mr. McNeill's death sentence is in violation of Ohio Rev. Code Ann. § 2929.05(A) (Anderson 1996), as well as the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Secs. 9 and 16 of the Ohio Constitution, in that aggravation does not outweigh mitigation and the death sentence is disproportionate.
11. Appellant McNeill's right against cruel and unusual punishment under the Eighth and Fourteenth Amendments and his right to due process under the Fifth and Fourteenth Amendments were violated by the trial court's erroneous review of this death sentence pursuant to Ohio Rev. Code Ann. § 2929.03(F) (Anderson 1993).
12. Ohio Rev. Code Ann. § 2929.03(D)(1) (Anderson 1993 & Supp. 1995) and Ohio Rev. Code Ann. § 2929.04 are unconstitutionally vague in violation of Appellant McNeill's right against cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution.
13. The definition of mitigating factors under Ohio Rev. Code Ann. § 2929.04(B)(7) (Anderson 1996) is misleading and results in unreliable capital sentencing in violation of the Eighth and Fourteenth Amendments to the United States Constitution, as well as Article I, Sections 9 and 16 of the Ohio Constitution.
14. The Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10 and 16, Article I of the Ohio Constitution establish the requirements for a valid death penalty scheme. O.R.C. Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, Ohio's statutory provisions governing the imposition of the death penalty, do not meet the prescribed constitutional requirements and are unconstitutional, both on their face and as applied.
15. The trial court erred when it charged the jury on the statutory definition of reasonable doubt in Ohio Rev. Code Ann. § 2901.05 (Anderson 1993).
16. The trial court erred when it denied Appellant McNeill's challenge to the jury panel on the ground of under representation of African-Americans in violation of the Sixth and Fourteenth Amendments to the United States Constitution.

(Id. at 325-31 (capitalization altered and citations to trial transcript omitted).) The State filed a responsive brief. (Id. at 546-601.)

         The appellate court affirmed McNeill's convictions and sentence on April 1, 1997. State v. McNeill, No. 95CA006158, 1997 WL 186348 (Ohio Ct. App. Apr. 1, 1997). McNeill, now represented by Attorneys Annette Powers and Renee Green, filed a timely notice of appeal to the Ohio Supreme Court. (Doc. 116-1 at 668-69.) In his brief, he presented the following seventeen propositions of law, stated as:

1. Aggravated murder is not committed “while” the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to commit aggravated robbery, under R.C. 2903.10(B) and 2929.04(A)(7), when the two acts are not part of the same transaction.
2. A conviction of the specification of having committed aggravated murder while committing or attempting aggravated robbery, R.C. 2929.04(A)(7), may not stand when as a matter of law, there is insufficient evidence to support it.
3. It is prejudicial error to admit evidence of other criminal acts previously committed by the defendant to show the defendant acted in conformity therewith.
4. Pronounced, persistent state misconduct which so infects the trial as to destroy its fundamental fairness amounts to a denial of due process and calls for a reversal.
5. A motion to replace appointed counsel must be granted when there is a break down in the attorney-client relationship of such magnitude as to jeopardize the defendant's right to the effective assistance of counsel.
6. The defendant's right to the effective assistance of counsel is denied when the defendant is prejudiced by counsel's deficient performance.
7. It is an abuse of discretion and a violation of the United States Constitution to allow children under the age of ten to testify when they cannot receive accurate impressions of facts, recall facts known to them or appreciate their responsibility to tell the truth.
8. The presumption of innocence is destroyed when prospective jurors are asked whether they could impose the death penalty upon this defendant.
9. A prospective juror in a capital case is subject to a challenge for cause only if he or she is unequivocally opposed to capital punishment and if the juror refuses to consider capital punishment under any circumstances.
10. A death sentence is disproportionate[ly] severe when given for a crime whose facts are far less heinous than those in similar cases where the death penalty was imposed.
11. A capital defendant has a protected liberty interest in a reliable review of his death sentence by the trial court.
12. R.C. 2929.03(D)(1) and R.C. 2929.04 are unconstitutionally vague in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
13. R.C. 2929.04(B)(7) is unconstitutionally vague and may be understood by jurors as reasons for imposing the death penalty.
14. Ohio's capital sentencing law is unconstitutional on its face and as applied to Appellant.
15. The Due Process Clause is violated by a jury charge which permits a criminal conviction on proof of less than beyond a reasonable doubt.
16. Substantially [sic] underrepresentation of African-Americans on a jury establishes a prima facie case of purposeful exclusion of African-Americans from the panel.
17. Failure to charge the jury properly on a lesser included offense in a capital murder sentencing phase requires reversal of the death penalty.

(Doc. 116-2 at 68-70 (capitalization altered).) The Stated filed a responsive brief. (Id. at 310-61.) The court affirmed the judgment of the appellate court on October 28, 1998. McNeill, 83 Ohio St.3d at 438. McNeill moved for reconsideration, which the court denied. (Doc. 116-2 at 392-95.)

         McNeill filed a petition for writ of certiorari in the United States Supreme Court. (Id. at 408.) The Court denied the petition on May 24, 1999. (Id. at 410.)

         3. Application to Reopen Direct Appeal

         Meanwhile, on June 30, 1997, McNeill, represented by David Bodiker, Laurence Komp, and Jennifer Hite of the Office of the Ohio Public Defender, filed an application for reopening pursuant to Ohio Appellate Rule 26(B). (Id. at 4-17.) Rule 26(B) permits defendants to request to reopen the appeal from a judgment to present claims of ineffective assistance of appellate counsel within ninety days from issuance of the court's direct-appeal mandate, or later for “good cause.” See Ohio R. App. P. 26(B); see also State v. Murnahan, 63 Ohio St.3d 60 (Ohio 1992). In his application, McNeill asserted that he was denied the effective assistance of appellate counsel for failing to raise on direct appeal the following assignments of error:

1. The trial court erred in admitting the victim impact testimony of Jeremiah Fulton during the mitigation phase of Appellant McNeill's trial.
2. Appellant McNeill's right to effective assistance of counsel was violated during the voir dire stages of his trial.

(Doc. 116-2 at 5, 10 (capitalization altered).) The State filed a brief in response. (Id. at 18-21.) The appellate court denied the application on August 5, 1997. (Id. at 26-27.)

         McNeill filed a timely appeal of the appellate court's judgment in the Ohio Supreme Court. (Doc. 116-3 at 3-6.) He presented three propositions of law, stated as:

1. An appellate court commits constitutional error when it refuses to consider whether an appellant had presented colorable appellate ineffectiveness claims because the court has an incomplete record before it and relies on an inapplicable App. R. in denying a request to ensure the consideration of the complete record.
2. The admission of the victim impact testimony during the mitigation phase of a capital trial prejudices a capital defendant's right to a fair determination of his sentence.
3. The performance of trial counsel falls below the level of competence contemplated by the Sixth Amendment where counsel failed to question jurors about their views on the death penalty.

(Id. at 22-24 (capitalization altered).) The State filed a brief in response. (Id. at 81-85.) The Ohio Supreme Court affirmed the appellate court's judgment on October 28, 1998. (Id. at 93-99.) McNeill moved for reconsideration, which was denied. (Id. at 101-10.) McNeill then filed a petition for writ of certiorari in the United States Supreme Court, which also was denied, on June 14, 1999. (Id. at 111.)

         4. Post-Conviction Proceedings

         Meanwhile, on September 20, 1996, McNeill, represented by David Bodiker, Laurence Komp, and Kevin Fahey of the Ohio Public Defender's Office, filed a petition for post-conviction relief with the trial court. (Id. at 115-624.) He asserted eighteen claims, stating:

1. Petitioner's convictions and/or sentences are void or voidable because death by electrocution constitutes a blatant disregard for the value of human life, entails unnecessary and wanton infliction of pain and diminishes the dignity of man.
2. Petitioner McNeill's conviction and/or sentences are void or voidable because the prosecutor suppressed material and exculpatory evidence, to wit:
A. A statement of Robert Rushinsky which conflicts with his trial testimony, Exhibit 12; B. A description of the clothing worn by Mr. Fulton's assailant which indicates a second or another person was at the crime scene. Exhibit 13; C. A tape recorded statement of Kimberly Sanford which was not disclosed to trial attorneys as required by Crim. R. 16. Exhibit 14.
3. Petitioner McNeill's conviction and/or sentences are void or voidable because the State of Ohio has interfered with McNeill's attempt to investigate and prepare his post-conviction petition. McNeill had requested all records maintained by the Lorain Police Department. Exhibit 15. The Lorain Police Department delivered documents which it relayed was the entire collection of materials it possessed on McNeill. Exhibits 16 and 17. McNeill has discovered other documents which refute this claim and show the claim to be patently false. Exhibits 12, 13 and 14.
4. Petitioner McNeill's conviction and/or sentences are void or voidable because trial counsel were deficient in their failure to investigate and present available mitigating evidence. More specifically, trial counsel failed to investigate and present testimony from his family and friends which details his family history, character and background. Exhibits 18-22. This should be read in the context that the defense presented only one (1) witness from McNeill's family.
5. Petitioner McNeill's conviction and/or sentences are void or voidable because the trial court erred in not sua sponte granting, and McNeill's counsel were ineffective in failing to move for, a mistrial after the stirring testimony of Jeremiah Fulton.
6. Petitioner McNeill's conviction and/or sentences are void or voidable because the death penalty is disproportionately meted out to those defendants who are racial minorities and/or those defendants who are accused of killing white victims.
7. Petitioner McNeill's conviction and/or sentences are void or voidable because death sentences in Ohio are racially biased against African-Americans.
8. Petitioner McNeill's conviction and/or sentences are void or voidable because the trial court failed to fully investigate and examine the breakdown of the attorney[-]client relationship. In addition, trial counsel were ineffective in failing to disclose the extent of their problems with McNeill.
9. Petitioner McNeill's conviction and/or sentences are void or voidable because his trial attorneys were deficient in failing to obtain the services of competent clinical psychologists to rebut the improper arguments of the State.
10. Petitioner McNeill's conviction and/or sentences are void or voidable because his trial attorneys were deficient at the culpability and sentencing phases.
11. Petitioner McNeill's conviction and/or sentences are void or voidable because his trial attorneys were ineffective in requesting a pre-sentence report.
12. Petitioner McNeill's conviction and/or sentences are void or voidable because he was shackled at the sentencing hearing before the trial court judge.
13. Petitioner McNeill's conviction and/or sentences are void or voidable because the jury venire from which McNeill's jury was selected under-represented African-Americans and other minorities.
14. Petitioner McNeill's conviction and/or sentences are void or voidable because the investigator employed by McNeill's trial attorneys was drunk while performing the McNeill investigation. Exhibit 25. The investigator was also charged with a drunk driving offense prior to McNeill's trial. Exhibit 36.
15. Petitioner McNeill's conviction and/or sentences are void or voidable because trial counsel were deficient in their failure to investigate and present a defense. More specifically, trial counsel failed to investigate and present testimony from friends and family regarding McNeill's childhood and teen years.
16. The Ohio courts have not performed any meaningful proportionality review, instead the courts simply have failed to follow the spirit and intent of the statutory requirement.
17. Petitioner McNeill's conviction and/or sentences are void or voidable because the prosecutor instructed Robert Rushinsky not to talk with defense counsel prior to McNeill's trial.
18. Petitioner McNeill's conviction and/or sentences are void or voidable because the cumulative effects of the errors and omissions as presented in this petition . . . have been prejudicial to the petitioner and have denied the petitioner his rights as secured by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.

(Id. at 118, 138, 139-40, 141, 142, 144, 145, 147, 148, 149, 150, 151, 152, 153, 154, 155, 158, 162, 163.) The State opposed the petition. (Doc. 116-4 at 67-117.)

         On April 28, 1997, McNeill moved to amend his petition by adding a new eighteenth claim and making his original eighteenth claim a nineteenth claim. (Id. at 145-50.) The new eighteenth claim was stated as: “Petitioner McNeill's conviction and/or sentences are void or voidable because the trial court and the court of appeals failed to give effect to the mitigating factors presented by defense counsel during the sentencing proceedings of Mr. McNeill's trial.” (Id. at 127.) The State opposed the motion to amend. (Id. at 151-53.) The court denied the motion. (Id. at 154.) The trial court denied McNeill's petition for post-conviction relief on January 27, 1998. (Id. at 155-62.)

         McNeill filed a timely appeal of that judgment in the Ninth District Court of Appeals. (Id. at 180-81.) In his appellate brief regarding his post-conviction petition, McNeill raised the following eight (misnumbered) assignments of error, stated as:

1. The trial court erred in denying Appellant's post-conviction petition without considering the record in violation of the Eighth and Fourteenth Amendments to the United States Constitution, Art. I, §§ 2, 6, and 10, and Ohio Rev. Code § 2953.21.
2. The trial court erred in denying Appellant's second claim for relief in violation of the Fifth and Fourteenth Amendments to the United States Constitution, Art. I, § 10 of the Ohio Constitution and Brady v. Maryland, 373 U.S. 83 (1963).
3. The trial court erred in denying Appellant's motion for a definite statement in violation of the Eighth and Fourteenth Amendments to the United States Constitution, Art. I, §§ 2, 6, and 10, and Ohio Rev. Code § 2953.21.
4. The ineffective assistance of counsel provided to Appellant violated his rights to a fair and impartial trial and sentence, as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 5, 9, 10 and 16 of the Ohio Constitution.
5. The trial court erred in denying Appellant's first, sixth, seventh, eighth, twelfth, thirteenth, sixteenth and seventeenth claims for relief in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
6. Ohio post-conviction procedures do not afford an adequate corrective process[, ] nor do they comply with due process or equal protection under the Fourteenth Amendment.
12. The trial court erred in applying the doctrine of res judicata to some of Appellant's claims in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution, Article I, §§ 1, 2, 9, 10, and 16 of the Ohio Constitution.
14. The cumulative error of Appellant's substantive claims merit reversal or remand for a proper post-conviction process.

(Doc. 116-5 at 82, 83-84, 86, 89, 92-93, 103, 107, 108 (capitalization altered).) The State also filed a brief. (Id. at 198-256.)

         While this appeal was pending, McNeill filed in the trial court a motion for relief from the judgment on his post-conviction petition pursuant to Ohio Civil Rule 60(b)(5). (Doc. 116-4 at 163-76.) The State opposed the motion. (Id. at 177-79.) The trial court denied it on August 17, 1998. (Id. at 184.) McNeill appealed that judgment as well to the Ninth District Court of Appeals. (Id. at 185-86.)

         In his appellate brief regarding his motion for relief from judgment, McNeill presented two assignments of error, stated as:

1. The trial court erred in ruling upon Appellant's 60(B) motion because the trial court was divested of jurisdiction when Appellant filed a notice of appeal to this court from the denial of his post-conviction petition.
2. The trial court erred in denying Appellant's 60(B) motion where Appellant established that the trial court failed to review the entire record when dismissing Appellant's post-conviction petition.

(Doc. 116-5 at 366.) The State filed a responsive brief. (Id. at 393-410.)

         On September 23, 1999, the court of appeals ruled that the trial court lacked jurisdiction to rule on McNeill's Rule 60(B) motion while his appeal of the denial of his post-conviction petition was pending, and reversed its order denying the motion. (Id. at 424-25.)

         On March 8, 2000, the appellate court denied in part and affirmed in part the trial court's judgment dismissing McNeill's post-conviction petition. State v. McNeill, 137 Ohio App.3d 34 (Ohio Ct. App. 2000). It held that the trial court could not rule on McNeill's fourth and ninth claims that his trial counsel were ineffective in failing to present certain mitigating evidence during the penalty phase while the trial record remained in the possession of the Supreme Court in connection with his direct appeal, but that the remaining claims were properly dismissed. Id. at 42-43, 45. The court therefore remanded the case to the trial court on claims four and nine. Id. at 43.

         McNeill filed a timely appeal of the appellate court's judgment in the Ohio Supreme Court. (Doc. 116-6 at 159-61.) In his memorandum in support of jurisdiction, he presented the following propositions of law, stated as:

1. The trial court erred in denying Appellant's post-conviction petition without considering the record in violation of the Eighth and Fourteenth Amendments to the United States Constitution, Art. I, §§ 2, 6, and 10, and Ohio Rev. Code § 2953.21.
2. The trial court erred in denying Appellant's second claim for relief in violation of the Fifth and Fourteenth Amendments to the United States Constitution, Art. I, § 10 of the Ohio Constitution and Brady v. Maryland, 373 U.S. 83 (1963).
3. The trial court erred in denying Appellant's motion for a definite statement in violation of the Eighth and Fourteenth Amendments to the United States Constitution, Art. I, §§ 2, 6, and 10, and Ohio Rev. Code § 2953.21.
4. The trial court erred in denying Appellant's tenth, eleventh, fourteenth, and fifteenth claims for relief in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
5. The trial court erred in denying Appellant's fifth claim for relief in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
6. The trial court erred in denying Appellant's third claim for relief in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
7. The trial court erred in denying Appellant's eighth claim for relief in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
8. The trial court erred in denying Appellant's seventeenth claim for relief in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
9. The trial court erred in denying Appellant's sixth and seventh claims for relief in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
10. The trial court erred in denying Appellant's thirteenth claim for relief in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
11. The trial court erred in denying Appellant's twelfth claim for relief in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
12. The trial court erred in denying Appellant's first claim for relief in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
13. The trial court erred in denying Appellant's sixteenth claim for relief in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
14. The trial court erred in denying Appellant's eighteenth claim for relief in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
15. Ohio post-conviction procedures do not afford an adequate corrective process[, ] nor do they comply with due process or equal protection under the Fourteenth Amendment.
16. The trial court erred in denying Appellant an evidentiary hearing on all his claims for relief in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments of the United States Constitution, Article I, §§ 2, 9, 10 and 16 of the Ohio Constitution.
17. The trial court erred in applying the doctrine of res judicata to some of Appellant's claims in violation of the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments of the United States Constitution, Article I, §§ 1, 2, 9, 10, and 16 of the Ohio Constitution.
18. The cumulative error of Appellant's substantive claims merit reversal or remand for a proper post-conviction process.

(Id. at 164-67 (capitalization altered).) The State filed a memorandum in opposition. (Id. at 237-63.) The court declined jurisdiction over the appeal on July 19, 2000. (Id. at 264.)

         On February 6, 2001, the trial court again denied the remanded ineffective-assistance claims. (Doc. 116-4 at 217-21.)

         McNeill appealed the trial court's denial of his post-conviction claims four and nine. (Doc. 116-5 at 430-31.) In his appellate brief, he presented the following assignment of error, stated as:

The ineffective assistance of counsel provided to Appellant violated his rights to a fair and impartial trial and sentence, as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 5, 9, 10 and 16 of the Ohio Constitution.

(Id. at 464.) The State filed a responsive brief. (Id. at 511-53.) The court of appeals affirmed the trial court's judgment on August 22, 2001. (Id. at 601-13.)

         McNeill filed a timely notice of appeal in the Ohio Supreme Court. (Doc. 116-7 at 3-6.) In his memorandum in support of jurisdiction, he asserted the following proposition of law, stated as:

The ineffective assistance of counsel provided to Appellant violated his rights to a fair and impartial trial and sentence, as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, §§ 5, 9, 10 and 16 of the Ohio Constitution.

(Id. at 15.) The State filed a memorandum in opposition. (Id. at 52-96.) The court declined jurisdiction on December 5, 2001. (Id. at 97.)

         Meanwhile, on January 25, 2001, McNeill, represented by Attorneys Bodiker and Hite, filed a motion in the trial court for an order declaring Ohio's post-conviction statute unconstitutional. (Doc. 116-4 at 208-15.) The court denied the motion on February 26, 2001. (Id. at 226-27.)

         McNeill appealed that judgment to the Ninth District Court of Appeals. (Doc. 116-6 at 4-8.) In his appellate brief, he asserted the following assignment of error:

         The trial court erred in its denial of Appellant's motion to declare Ohio's postconviction statute unconstitutional to a successor postconviction petition. (Id. at 27.) The State filed a responsive brief. (Id. at 111-31.) The appellate court affirmed the trial court's judgment on October 24, 2001. (Id. at 153-57.)

         B. Federal Habeas Corpus Proceedings

         McNeill filed a notice of intent to initiate this habeas action on August 21, 2002. (Doc. 1.) He requested appointment of counsel and permission to proceed in forma pauperis. (Docs. 5, 15.) This Court appointed Robert Dixon and Laurence Komp to represent him. (Doc. 6.)

         McNeill filed his original petition for writ of habeas corpus on December 4, 2002. (Doc. 21.) Respondent filed the return of writ on February 3, 2003. (Doc. 40.) After requesting and receiving an extension of time, McNeill filed his traverse on July 1, 2003. (Doc. 50.)

         That same day, McNeill moved for discovery and an evidentiary hearing. (Doc. 51.) He requested permission to conduct depositions of eleven individuals and records depositions of five agencies to support his claims regarding his right to counsel of choice, ineffective assistance of counsel, jury composition, prosecutorial misconduct, suppression of exculpatory evidence, improper shackling, and improper admission of “other acts” evidence. (See id. at 4.) Respondent opposed the motion. (Doc. 52.) On April 15, 2005, this Court granted McNeill's request to develop his ineffective-assistance claims regarding counsel's mitigation investigation, request for a pre-sentence report and psychological evaluation, and preparation of certain mitigation witnesses, and denied the remaining requests. (Doc. 57.)

         On April 14, 2006, McNeill filed a brief in support of his habeas petition; a renewed motion for discovery and/or evidentiary hearing regarding trial counsel's preparation of mitigation witnesses, the Lorain Police Department's (LPD) possession of a taped statement of a State witness and other records previously requested, and trial counsel's strategy in questioning venire members; and a motion for expansion of the record to include his affidavit regarding his relationship with trial counsel. (Doc. 68.) Respondent opposed the motions. (Doc. 69.) On May 25, 2007, the Court granted McNeill's requests to expand the record to include his affidavit and to conduct a records deposition of the LPD, and denied the remaining requests. (Doc. 80 at 9-10.)

         On March 14, 2008, McNeill's counsel advised the Court in a “Status Report Regarding Discovery” that the LPD had produced its file on the Fulton murder. (Doc. 82 at 1.) However, they explained, when counsel went to the LPD to compare the produced documents to the original records, they discovered eight audiotapes in the file that were not previously produced. (Id.) McNeill's counsel stated that the department “thereafter provided the undersigned counsel with copies of said tapes, ” and they were “reviewing them with . . . McNeill.” (Id.) Counsel further advised that they had told Respondent about the tapes and promised to provide her with copies. (Id.)

         On April 1, 2009, McNeill moved for funds to employ an investigator to further develop his claims that the LPD had suppressed exculpatory evidence because two of the audiotapes discovered in the LPD file were not disclosed to his trial counsel. (Doc. 87.) Respondent opposed the request. (Doc. 88.) On June 8, 2009, the Court granted it. (Doc. 90.)

         C. State-Court Motion for New Trial and Motion to Stay Federal Habeas Proceedings and Hold in Abeyance

         On September 23, 2011, McNeill filed with the state trial court a motion for leave to file a motion for new trial. (Doc. 118-1 at 10-27.) He sought to assert claims regarding the LPD's alleged suppression of exculpatory evidence based on the newly discovered audiotapes and LPD reports. (Id. at 15.)

         On February 10, 2012, McNeill filed a motion asking this Court to stay his habeas action and hold it in abeyance pending the exhaustion of the claims raised in his state-court motion for a new trial. (Doc. 96.) Respondent opposed the motion. (Doc. 97.) The Court granted the motion on July 30, 2012. (Doc. 99.)

         The state courts denied McNeill's motion for leave to file a motion for new trial. The trial court found the motion untimely, as McNeill did not adequately explain the reason for his delay in seeking the new trial; and, in the alternative, it found the claims lacked merit. (Doc. 118-1 at 227-32.) The state appellate court affirmed on timeliness grounds. (Id. at 358-65.) The Ohio Supreme Court declined jurisdiction of the appeal. (Id. at 458, 467.)

         Having exhausted his remedies in state court, McNeill moved to reinstate his case on this Court's docket on August 24, 2017. (Doc. 107.)

         D. Reinstated Federal Habeas Proceedings

         On March 2, 2018, McNeill filed a motion to amend his habeas petition (Doc. 120) and a motion to expand the record (Doc. 119). He sought to supplement his suppressed-evidence claim and add a new, related claim based on the three newly discovered audiotapes, and McNeill moved to expand the record to include evidence that supports those claims. (Doc. 120 at 1; Doc. 119 at 1.) Respondent opposed both motions. (Docs. 121, 125.) On July 9, 2018, the Court granted McNeill's motions. (Doc. 128.)

         McNeill filed an amended petition on September 6, 2018, . (Doc. 137.) Respondent filed a return of writ on November 13, 2018. (Doc. 141.) McNeill filed an amended traverse on February 1, 2019. (Doc. 144.) And Respondent filed a sur-reply on April 19, 2019. (Doc. 145.)

         Petitioner's Grounds for Relief

         McNeill asserts twenty-seven grounds for relief in his amended petition, stated as:

1. The trial court violated Petitioner's rights to the assistance of counsel and due process guaranteed by the Sixth and Fourteenth Amendments when it denied Petitioner's motion to dismiss trial counsel.
2. Petitioner's counsel provided ineffective assistance at the mitigation phase in violation of the Sixth and Fourteenth Amendments.
3. The trial court failed to consider and give effect to mitigating evidence, thereby violating Petitioner's rights as guaranteed by the Eighth and Fourteenth Amendments.
4. The trial court erred when it denied Petitioner's challenge to the jury panel on the ground of underrepresentation of African-Americans in violation of the Sixth and Fourteenth Amendments.
5. The trial court erred when it ruled that [C.R.] and [R.G.] were competent to testify at the trial phase[, ] thereby violating Petitioner's rights to a fair trial and to a reliable capital sentencing determination under the Sixth, Eighth and Fourteenth Amendments.
6. The State's instruction to Robert Rushinsky not to talk to defense counsel deprived Petitioner of his rights under the Fifth, Sixth and Fourteenth Amendments.
7. Petitioner Freddie McNeill's rights under the Fifth, Sixth, and Fourteenth Amendments were violated when the State of Ohio failed to provide the defense with exculpatory and favorable evidence. U.S. Const. Amends. V, VIII, XIV, Brady v. Maryland, 373 U.S. 83 (1963).
8. State misconduct during Petitioner's trial denied his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments.
9. The shackling of Petitioner at sentencing violated his Eighth and Fourteenth Amendment rights.
10. The trial court improperly death-qualified Petitioner's jury when it asked prospective jurors whether they could sentence Petitioner to death, thereby violating Petitioner's rights to a fair and impartial sentencing jury and a reliable capital sentencing determination under the Sixth, Eighth and Fourteenth Amendments.
11. Petitioner's jury could not consider and give effect to mitigating evidence due to an improper instruction requiring the acquittal first of the death penalty prior to the consideration of the life options in violation of the Sixth, Eighth and Fourteenth Amendments.
12. The definition of mitigating factors under O.R.C. § 2929.04(B)(1) is misleading and results in unreliable capital sentencing in violation of the Eighth and Fourteenth Amendments.
13. The aggravated murder provision O.R.C. § 2903.01(B) and the death penalty specification provision O.R.C. § 2929.04(A)(7), as applied in Petitioner's case violate the Eighth and Fourteenth Amendments.
14. There was insufficient evidence of aggravated robbery to support Petitioner's convictions under O.R.C. §§ 2901.05(A), 2903.01(B), and 2929.04(A)(7)[, ] thereby violating the Eighth and Fourteenth Amendments.
15. Petitioner was denied his rights to a fair trial, to due process and to a reliable death sentence in violation of the Fifth, Sixth, Eighth, and Fourteenth [Amendments] when the State presented and the trial court admitted prejudicial “other acts” evidence.
16. Petitioner's right to the effective assistance of counsel under the Sixth and Fourteenth Amendments was violated.
17. The trial court applied an incorrect standard when it removed for cause jurors with concerns about capital punishment[, ] thereby violating Petitioner's right to due process under the Fourteenth Amendment.
18. Petitioner's death sentence violates the Eighth and Fourteenth Amendments in that the aggravation does not sufficiently outweigh the mitigation.
19. O.R.C. § 2929.03(D)(1) and O.R.C. § 2929.04 are vague in violation of Petitioner's right against cruel and unusual punishment under the Eighth and Fourteenth Amendments.
20. The Fifth, Sixth, Eighth and Fourteenth Amendments establish the requirements for a valid death penalty scheme. O.R.C. §§ 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05. Ohio's statutory provisions governing the imposition of the death penalty[] do not meet the prescribed constitutional requirements and are unconstitutional, both on their face and as applied.
21. The trial court's reasonable doubt instruction failed to comport with the requirements of the Fourteenth Amendment.
22. The death penalty in Ohio is applied in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments.
23. Ohio's proportionality review violates due process.
24. The introduction of victim impact evidence at Petitioner's mitigation phase violated his rights under the Eighth and Fourteenth Amendments.
25. Ohio's procedure for raising ineffective assistance of appellate counsel violates the Fifth, Sixth, Eighth and Fourteenth Amendments.
26. Cumulative effect of error in Petitioner's case deprived Petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments.
27. The judgments and sentences against Freddie McNeill are constitutionally invalid because the Lorain County Prosecutor's Office failed to provide trial counsel with exculpatory evidence and intentionally created a materially false impression at trial. McNeill's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments were violated.

(Doc. 137 at 2-5 (capitalization altered).)

         In his amended traverse, McNeill notes that he has “abandon[ed] any claims that relate solely to his death sentence” - namely, grounds two, three, nine, ten, eleven, twelve, seventeen, eighteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, and twenty-four. (Doc. 144 at 22, 23, 94-97, 123-130.) In addition, McNeill concedes that his twenty-fifth ground for relief, challenging Ohio's post-conviction process, is not a cognizable ground for habeas corpus relief, and he has abandoned that claim as well. (Id. at 131.) He states that he reserves the right to seek the overruling of the Sixth Circuit Court of Appeals precedent regarding that issue on appeal, however. (Id.)

         Standards of Review

         A. AEDPA Review

         McNeill's petition for writ of habeas corpus is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997) (AEDPA governs federal habeas petitions filed after Act's effective date). AEDPA, which amended 28 U.S.C. § 2254, was enacted “to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases, and ‘to further the principles of comity, finality, and federalism.'” Woodford v. Garceau, 538 U.S. 202, 206 (2003) (quoting (Michael) Williams v. Taylor, 529 U.S. 420, 436 (2000)). The Act “recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights.” Burt v. Titlow, 571 U.S. 12, 18 (2013). It therefore “erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Id. at 19.

         One of AEDPA's most significant limitations on the federal courts' authority to issue writs of habeas corpus is found in § 2254(d). That provision forbids a federal court from granting habeas relief with respect to a “claim that was adjudicated on the merits in State court proceedings” unless the state-court decision either:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         Habeas courts review the “last explained state-court judgment” on the federal claim at issue. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (emphasis original). A state court has adjudicated a claim “on the merits, ” and AEDPA deference applies, regardless of whether the state court provided little or no reasoning at all for its decision. “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on ...


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