INTERIM REPORT AND RECOMMENDATIONS

MICHAEL R. MERZ, Magistrate Judge.

This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the merits.

Upon review of the Petition (ECF No. 1), Magistrate Judge Litkovitz, to whom this case was initially referred, ordered the Warden to answer (ECF No. 2). In due course the Warden filed the state court record ("SCR," ECF No. 8) and a Return of Writ (ECF No. 16). Judge Litkovitz thereafter granted motions to expand the record and to file under seal (ECF Nos. 17, 18, 19). The reference was transferred to the undersigned to help balance the Magistrate Judge workload in the Western Division (ECF No. 20).

Mr. Blankenburg pleads the following grounds for relief:

(Petition, ECF No. 1, PageID 2-3.)

Procedural History

Mr. Blankenburg was indicted by the Butler County grand jury on March 6, 2009, on fifty-four counts: four counts of corruption of a minor, eight counts of corruption another with drugs, nine counts of pandering sexually-oriented matter involving a minor, two counts of aggravated trafficking in drugs, six counts of trafficking in drugs, three counts of bribery, six counts of money laundering, six counts of gross sexual imposition, six counts of illegal use of a minor in a nudity-oriented material of performance, two counts of engaging in a pattern of corrupt activity, one count of compelling prostitution, one count of complicity to compelling prostitution, and one count of complicity to bribery. Blankenburg waived his right to trial by jury as to some counts, but all counts were tried at the same time. The jury found him guilty of four counts of corruption of a minor, six counts of gross sexual imposition, three counts of compelling or complicity of prostitution, and three counts of pandering sexually oriented matter involving a minor. The trial court found him guilty of four counts of drug trafficking, one count of money laundering and one count of aggravated drug trafficking. He was then sentenced to an aggregated sentence of twenty-one to twenty-seven years. On twelve counts that had been severed, he pleaded guilty to two and the rest were merged. The court sentenced him to twelve months on each count, to be served concurrently with the sentences already imposed.

Blankenburg appealed and his convictions were affirmed. State v. Blankenburg, 197 Ohio App.3d 201 (12th Dist. 2012) ("Blankenburg I"), appellate jurisdiction declined, 132 Ohio St.3d 1514 (2012). While the appeal was pending, Blankenburg filed a petition for post-conviction relief under Ohio Revised Code § 2953.21. The trial court denied relief, but the Twelfth District reversed and remanded. State v. Blankenburg, 2012-Ohio-6175, 2012 Ohio App. LEXIS 5321 (12th Dist. Dec 28, 2012) ("Blankenburg II"). On appeal after remand, the Twelfth District affirmed denial of the petition. State v. Blankenburg, 2014-Ohio-4621, 2014 Ohio App. LEXIS 4519 (Oct 20, 2014) ("Blankenburg III"), appellate jurisdiction declined, 142 Ohio St.3d 1465 (2015). Blankenburg, with the assistance of counsel, then filed his Petition in this Court April 29, 2016.

Analysis

Ground One: Insufficient Notice and Double Jeopardy1

In his First Ground for Relief, Blankenburg contends that the indictment, the bill of particulars, and the manner of eliciting evidence at trial deprived him of fair notice of the charges against which he was required to defend and violated his right to be free of double jeopardy.

The nine counts of the indictment at issue in Ground One are Counts 15, 16, 17, 18, 37, 38, 39, 40, and 41 which read as follows:

COUNT THIRTY SEVEN (37) GROSS SEXUAL IMPOSITION

(Indictment, SCR 8.) Blankenburg avers that two victims were involved in these counts of the indictment, M.K. for counts 15-18 and B.L.B. for counts 37-41.

Blankenburg raised his First Ground for Relief as his first assignment of error on direct appeal and the Twelfth District decided it as follows:

Blankenburg I, supra.

When a state court decides on the merits a federal constitutional claim later presented to a federal habeas court, the federal court must defer to the state court decision unless that decision is contrary to or an objectively unreasonable application of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).

Where there has been one reasoned state court judgment rejecting a federal claim, there is a rebuttable presumption that later unexplained orders upholding the judgment or rejecting the same claim rest on the same ground. Ylst v. Nunnemaker, 501 U.S. 797 (1991). The district court must look at the last state court disposition providing reasons for the decision. Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). A state court's noncommittal denial of review is not controlling. McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). The last reasoned opinion on the relevant issues is Blankenburg I.

In this case Petitioner asserts "[a] close reading of the court's decision, however, reveals that it failed to adjudicate Blankenburg's specific due process and double jeopardy claims." He adds:

(Traverse, ECF No. 16, PageID 3229.)

The Warden has not had an opportunity to respond to this argument because the argument is made in the Traverse and habeas corpus pleading does not anticipate such a response.

The Court finds Petitioner's argument is not well taken. The argument depends on the Twelfth District's citation of cases which, Petitioner says, do not address his fair notice and double jeopardy claims. The question, however, about whether a state court had decided a matter on the merits does not depend on whether the cases it cites are in point on the issues raised by an appellant.

A state court decision can constitute an "adjudication on the merits" entitled to deference under 28 U. S.C. § 2254(d)(1) even if the state court does not explicitly refer to the federal claim or to relevant federal case law. In Harrington v. Richter, 562 U.S. 86 (2011), the Supreme Court held:

Id. at 784. "This Court now holds and reconfirms that § 2254(d) does not require a state court to give reasons before its decisions can be deemed to have been `adjudicated on the merits.'" Id. at 785. "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 the merits in the absence of any indication or state-law procedural principles to the contrary." Brown v. Bobby, 656 F.3d 325, 329 (6th Cir. 2011), quoting Harrington, 131 S. Ct. at 784-85. When the state court is silent as to its reasoning in denying a claim, "a habeas court must determine what arguments or theories supported or . . . could have supported the state court's decision." Walker v. McQuiggan, 656 F.3d 311, 318 (6th Cir. 2011), vacated on other grounds Howes v. Walker, 132 S.Ct. 2741, 183 L. Ed. 2d 32 (2012), quoting Harrington, 131 S. Ct. at 786. When the state court gives no explanation of its decision, "a habeas petitioner may meet his or her burden `by showing there was no reasonable basis for the state court to deny relief.'" Carter v. Mitchell, 693 F.3d 555, 562 (6th Cir. 2012), quoting Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784 (2011); Moore v. Mitchell, 708 F.3d 760, 776-77 (6th Cir. 2013). When a state court rules against a defendant in an opinion that rejects some of the defendant's claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289 (2013).

In his Brief on appeal, Blankenburg's First Assignment of Error asserted that his "constitutional rights were violated by a duplicitous indictment and by duplicitous charging." (SCR, ECF No. 8, PageID 136.) He argued that assignment of error in terms of Ohio Criminal Rule 8(A), the Sixth and Fifth Amendments to the United States Constitution, Article I, §§ 5 and 10 of the Ohio Constitution, and ten cited cases, one from a federal district court in New York, three older Ohio cases, two cases from Arizona, and one case each from Maryland, New York, New Hampshire, and Rhode Island. Id.

In deciding the first assignment of error, the Twelfth District understood it had multiple federal and state law claims combined in this one assignment. Its very first case citation is to United States v. Murray, 618 F.2d 892 (2nd Cir. 1980), on the definition of a duplicitous indictment. Blankenburg I at ¶ 8. For the sufficiency requirements for an indictment, it cites Hamling v. United States, 418 U.S. 87, 117-118 (1974). Finally, at ¶ 33, it expressly ruled on the fair notice and double jeopardy claims.

Therefore, Petitioner has not overcome the presumption that that Twelfth District decided his federal constitutional claims on the merits. That court's opinion is therefore entitled to deference under the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214) (the "AEDPA").

This Court looks, then, to Petitioner's Traverse for an argument about how the Twelfth District's decision is contrary to or an objectively unreasonable application of clearly established Supreme Court precedent. Blankenburg emphasizes he is not raising a claim under Valentine v. Konteh, 395 F.3d 626, 631 (6th Cir. 2005) (Traverse, ECF No. 16, PageID 3230). He is certainly correct that the problem with the indictment in Valentine — multiple "carbon copy" counts with a wide time frame but charging separate offenses — is not present here.

Blankenburg argues that

(Traverse, ECF No. 16, PageID 3232.) He recognizes that these are general standards and as such, to prevail, he must show that their application by the Twelfth District was so unreasonable as to be "beyond any possibility for fairminded disagreement." Id., citing Thomas v. Heidle, 615 Fed. Appx. 271, 279 (6th Cir. 2015). To the same effect, see White v. Wheeler, 577 U.S. ___, 136 S.Ct. 456, 193 L. Ed. 2d 384 (2015) (per curiam), quoting White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697, 188 L. Ed. 2d 698 (2014), quoting Harrington v. Richter, 562 U.S. 86, 103 (2011).

Having set out this standard, Blankenburg fails to meet it.

He first urges that the indictment and bill of particulars "combined specific-act and course-of-conduct language within single counts." (Traverse, ECF No. 16, PageID 3232, citing the Indictment, ECF No. 8, PageID 23, 24, 28, 40, 44, and 45.) But at the first-cited page, Count 15 alleges Blankenburg engaged in a course of conduct for the three-year period May 1, 1990, through April 30, 1993, which constituted gross sexual imposition. It does not allege a specific act, but only a course of conduct including ongoing acts of sexual contact. At the other end of the indictment counts complained of, Count 41 on PageID 45 alleges "an ongoing course of criminal conduct" involving "repeated instances" of sexual contact. It also does not charge a criminal offense involving a specific act.

In upholding this pleading against his first assignment of error, Blankenburg argues the Twelfth District "applied the sufficient-notice law in an unreasonable manner" because "[it] is impossible to defend against `unspecified' incidents." (Traverse, ECF No. 16, PageID 3233.) In essence Blankenburg is arguing that prosecution on a course of conduct count of an indictment is per se unconstitutional. But where is that proposition in clearly established Supreme Court precedent? Blankenburg relies on Jackson v. Virginia, 443 U.S. 307 (1979); Cole v. Arkansas, 333 U.S. 196 (1948); In re Oliver, 333 U.S. 257 (1948); Price v. Georgia, 398 U.S. 323 (1970); Abney v. United States, 431 U.S. 651 (1977); United States v. Dixon, 509 U.S. 688 (1993); and Hamling v. United States, 418 U.S. 87 (1974) (Traverse, ECF No. 16, PageID 3234-35).

The holding in Jackson, as is well known, is that lack of evidence at trial which could have persuaded a reasonable factfinder beyond a reasonable doubt states a due process claim cognizable in habeas corpus. As a matter of dictum, Justice Stewart noted "a broader premise that has never been doubted in our constitutional system: that a person cannot incur the loss of liberty for an offense without notice and a meaningful opportunity to defend." But Jackson does not involve any holding by the Supreme Court on what notice is required.

Both Blankenburg and Justice Stewart in Jackson cite to Cole v. Arkansas, supra. There the defendants had been tried and convicted under § 2 of Act 193 of the 1943 Arkansas Legislature, but the Arkansas Supreme Court treated the case as having arisen under § 1 of that Act, despite the fact that information and the trial judge cited § 2. Justice Black wrote

333 U.S. at 201. That general principle is of course well established, but the decision says nothing about whether a State can charge a course of conduct crime.

Both Blankenburg and Justice Black cite to In re Oliver, supra, decided the same day as Cole. Oliver is a famous contempt of court case. Oliver was sentenced for contempt for having lied to a Michigan judge sitting as if a one-man grand jury on the basis of non-conformity of Oliver's testimony with that of at least one other witness. The judge believed the other witness and, without disclosing his testimony to Oliver, sentenced Oliver to sixty days in jail for contempt. With appropriate references to abolition of the Court of Star Chamber, the Supreme Court held that Oliver could not be tried in secret. That is clearly established. But nothing in Oliver speaks to the required contents of indictments.

In Price v. Georgia, 398 U.S. 323 (1970), a man was tried and acquitted of murder, but convicted of the lesser included offense of voluntary manslaughter. When the manslaughter conviction was reversed because of an erroneous jury instruction, the State attempted a retrial on the murder charge, which the Supreme Court held was barred by res judicata. The original indictment charged an act of murder; there was no issue about course of conduct language.

In Abney v. United States, 431 U.S. 651 (1977), the court held that denial of a motion to dismiss an indictment on Double Jeopardy grounds before a second trial was an appealable final order under 28 U.S.C. § 1291 because the Double Jeopardy Clause protects against a second trial, not just a second conviction. The indictment charged two offenses — conspiracy and attempt — in one count and the defendants were convicted. The convictions were reversed on evidentiary grounds and the defendants pled double jeopardy in bar of a second trial. The Supreme Court held there was no Double Jeopardy bar to the retrial despite the wording of the indictment.

In United States v. Dixon, 509 U.S. 688 (1993), the Court held that where a subsequent criminal prosecution requires proof of the same elements as had been used to prove a prior criminal contempt matter, the Double Jeopardy Clause proscribes the second prosecution, applying the test derived from Blockburger v. United States, 284 U.S. 299 (1932).

Finally, in Hamling v. United States, 418 U.S. 87 (1974), an obscenity case, the Court upheld an indictment in the words of the statute, which had previously been held not to be unconstitutionally vague. On the fair notice question, the Court held that the language of the statute "must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged." 418 U.S. at 117-18, quoting United States v. Hess, 124 U.S. 483, 487 (1888). Hess was not a constitutional case, discussing what a State indictment must contain to satisfy the federal Constitution, but apparently based on federal criminal common law.

In sum Blankenburg has not shown that charging course of conduct crimes limited to particular time periods, victims, and locations is unconstitutional under any of the precedent he cites.

If this Court were to consider Blankenburg's arguments apart from Supreme Court precedent, it would not find them persuasive. Blankenburg was given notice of what he had to defend against, to wit, that over different periods of time he had engaged in courses of conduct with two different victims which involved specific sexual acts. The victims were named separately and the locations of the alleged offenses were specified. The Twelfth District noted that charging these offenses as course of conduct offenses was favorable to the defendant, as compared with charging the acts separately and subjecting him to punishment for each act of sexual abuse.

The holding of the Twelfth District that sexual abuse of a minor offenses can be charged as a course of conduct is a holding on a question of Ohio law binding on this Court. Applying AEDPA deference to the constitutional portions of Blankenburg I, this Court concludes Blankenburg has not shown they were an objectively unreasonable application of Supreme Court precedent on either the fair notice or the Double Jeopardy basis.

Ground Two: Juror Bias

In his Second Ground for Relief, pleaded in ¶ 16 of the Petition, Blankenburg claims his right to a fair and impartial trial by jury was violated in three ways: by actual juror bias, by implied juror bias, and by deliberate juror concealment during voir dire.

Cognizability

The Warden argues this Ground for Relief is not cognizable in habeas corpus. She asserts that defects in state post-conviction procedure cannot be reviewed in habeas, citing Kirby v. Dutton, 794 F.2d 245 (1986). She asserts the trial judge's crediting of the juror as against post-conviction witnesses is an exercise of discretion, not reviewable in habeas. And she claims Ohio R. Crim. P. 24(C)(9), allowing a person to serve as a juror if the trial judge is satisfied with his or her impartiality, was applied here and its application may not be second-guessed by this Court (Return, ECF No. 9, PageID 3186-87).

Blankenburg does not respond to these three assertions in his Traverse, but the Court finds them unpersuasive. Petitioner's claim here is that he was convicted by a jury which included a member who was actually biased against him. That claim arises directly under the Sixth Amendment which is applicable to the States by incorporation into the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145 (1968). Petitioner does not seek to have this Court order some change in the Ohio post-conviction process, either for this case or in general. He does not ask us to reverse any of the Ohio trial judge's decisions on the grounds they were an abuse of discretion.

As to Ohio R. Crim. P. 24(C)(9), the Warden argues that making a trial judge's finding as to impartiality conclusive is a legislative2 choice of Ohio and its application cannot be reviewed in habeas corpus. To the extent this argument claims that a merely formal declaration of impartiality by a trial judge is preclusive of any further inquiry into jury impartiality, it is plainly wrong. The Sixth Amendment guarantee of jury trial cannot be so summarily displaced. Moreover, the Warden cites no Ohio case law reading Rule 24(C)(9) as having that effect.

Procedural Default

The Warden asserts in the alternative that Ground Two is procedurally defaulted in that it was not fairly presented to the Ohio courts as a constitutional claim (Return, ECF No. 9, PageID 3193). Blankenburg's counsel claims to be flabbergasted by this assertion. He writes:

(Traverse, ECF No. 16, PageID 3237, n. 10.)

Blankenburg's Ground B for relief in post-conviction reads:

(SCR, ECF No. 8-1, PageID 432.)

The trial judge dismissed the post-conviction petition on the State's motion for summary judgment, concluding it was barred by Ohio's criminal res judicata doctrine and the facts in the co-worker affidavits, even if construed as true, would not entitle Blankenburg to relief (Order Denying Petition for Post-Conviction Relief, SCR, ECF No. 8-1, PageID 440, et seq.). On appeal, in addition to raising procedural assignments of error about the way the trial court disposed of the Petition, Blankenburg plainly stated

(Brief of Appellant, SCR, ECF No. 8-1, PageID 456.) Considering the co-worker affidavits, the Twelfth District reversed and remanded. Blankenburg II, supra. On remand the trial court again granted summary judgment (Order, SCR, ECF No. 8-1, PageID 557). On appeal Blankenburg raised two procedural assignments of error, but pleaded as an issue under the second assignment that the juror in question had concealed information during voir dire (Brief, SCR, ECF No. 8-1, PageID 589). This time the Twelfth District affirmed and Blankenburg appealed to the Ohio Supreme Court. Two of his three proposed propositions of law relate to his claim of entitlement to a hearing on a "colorable claim of juror impartiality [sic]" and a colorable claim of misleading on voir dire (Memorandum in Support of Jurisdiction, SCR, ECF No. 8-1, PageID 668).

Based on the cited portions of the State Court Record, this Court concludes Blankenburg fairly presented his federal constitutional claims to the Ohio courts.

The Merits

The State Courts' Decisions on the Merits

Blankenburg's jury partiality claim focuses on seated juror T.M. In post-conviction, Blankenburg submitted affidavits from two of T.M.'s former co-workers at a Kroger pharmacy. Affiant D.M. stated3 that T.M. was a pharmacist at Kroger and told him before the trial that her son had been a patient of Blankenburg's and that she was "obsessed with becoming a juror in the case" and wanted to become the foreperson in order to deliver a guilty verdict. D.M. also stated it was not uncommon for T.M. to fill prescriptions sent to the pharmacy by Blankenburg.

Affiant T.B. averred that he was also a pharmacist at Kroger who had worked with T.M. where he and T.M. would regularly fill prescriptions written by Blankenburg. He had heard her say that her child was a patient of Blankenburg and that she was determined to get on the jury in the criminal case to make Blankenburg "fry" for his actions.

The trial judge first considered these Affidavits in his decision granting summary judgment the first time. He found that the affidavits "are comprised of inadmissible hearsay," citing Ohio R. Evid. 606(B) (Order, SCR, ECF No. 8-1, PageID 443). He also found that "even if the Court construed all of the facts contained in the affidavits as true, it would still not entitle Petitioner to relief." Id. The judge went on to find Blankenburg's claims were barred by Ohio's criminal res judicata doctrine as enunciated in State v. Perry, 10 Ohio St.2d 175 (1967), and its progeny. Id. at PageID 443-44. The judge concluded that "Blankenburg has failed to meet his burden to show that the evidence is more than marginally significant and that it advances his claim beyond a mere hypothesis that the result would be different if this evidence had been submitted at trial."

On appeal the Twelfth District held that application of res judicata was improper because the affidavits, if true, were "more than marginally relevant to supports appellant's claim that he did not received a fair trial" and there was "no evidence in the original trial record" showing this information was known at the time of the direct appeal.4 Blankenburg II, ¶ 14. The court found "a hearing on appellant's petition should be held." Id. The Twelfth District also concluded the trial judge had not made a credibility determination regarding the affidavits as permitted in Ohio post-conviction practice under State v. Calhoun, 86 Ohio St.3d 279 (1999). Id. at ¶ 18.

On remand, Judge Spaeth again granted the State's motion for summary judgment. Reviewing the case, he wrote:

(Order, SCR, ECF No. 8-1, PageID 564-66.)

Blankenburg again appealed. The Twelfth District held that its prior decision remanding the case had not mandated an evidentiary hearing. However,

Blankenburg III, supra, at ¶ 25. In other words, the appellate court found granting summary judgment was improper, but affirmed on a different basis.

The Twelfth District found Judge Spaeth had applied Calhoun in finding the Affidavits not to be credible and that it "should not substitute its own judgment regarding credibility for that of the trial court." Id. at ¶ 29. It noted the trial judge's reference to Ohio Crim. R. 24(C)(9) and concluded

Id.

In dissent, Presiding Judge Ringland argued

Id. at ¶ 40.

The Magistrate Judge's Analysis of the Merits

The Magistrate Judge is persuaded by Judge Ringland's dissent.

A criminal defendant in any court in the United States who is charged with an offense carrying a possible penalty in excess of six months imprisonment is entitled to trial by an impartial jury.5 Duncan v. Louisiana, 391 U.S. 145 (1968). In this case the Ohio courts have determined that Petitioner was not deprived of that right and the question is whether that decision is entitled to deference under 28 U.S.C. § 2254(d) which provides:

In this case, the Magistrate Judge concludes the Ohio courts' decision was based on an unreasonable determination of the facts in light of the evidence presented.

The Court starts its analysis with voir dire. Judge Spaeth began with standard instructions reminding the venire that a trial jury must be as "free as humanly possible from bias, prejudice or sympathy and not be influenced by any preconceived ideas either as to the law or the facts. . . ." There may be something in your background or in the course of your life experiences that may disqualify you from hearing this particular case." (Trial Transcript ("Tr.Tr."), ECF No. 19-2, PageID 3402.) He indicated a juror could be excused for cause if they knew one of the parties. Id. The jurors were sworn to answer voir dire questions truthfully and to reaffirm the truth of the answers they had given on jury questionnaires.6 Id. at PageID 3404.

The venire members are identified in the transcript by an assigned number. Many of them knew Dr. Blankenburg professionally as a treating physician for themselves, their children, or their grandchildren. Id. at PageID 3458.

In his assessment of Juror T.M. from voir dire, Judge Spaeth noted she had asked to be excused, that she was questioned at length, and that he found her to be competent, honest, and forthright. However, he did not include any record references for those findings. The voir dire transcript has been filed (ECF No. 19-2) and the juror in question has been identified by her juror number, to wit, 314. During voir dire, Juror 314, answered that she knew witness Michael Jackson, a pharmacist at Kroger's, and could weigh his testimony impartially even though he was her supervisor (Tr. Tr., PageID 3436). She denied having heard or read or discussed at work any of the issues surrounding this case. Id. at PageID 3437. She responded generally that she could be a fair and impartial juror. Id.

Juror 314 also knew witness Dan Heim with whom she had worked at Walgreen's about ten years before the trial. Id. at PageID 3440. She averred that she could be fair and impartial in making a determination of his credibility. Id. She testified that she had spoken with witness Bob Mortimer on the phone a couple of times as part of his investigatory work in pharmacy cases, but not about this case. Id. at PageID 3451-52. She reiterated that his being a witness would not prevent her from being fair and impartial. Id. She agreed with the general test of weighing discrepancies among witnesses. Id. at PageID 3610.

Somewhat later Juror 314 asked to approach the bench. Id. at PageID 3624. She shared privately that a maternal aunt was a life-long drug addict, but they did not have much contact, she did not blame the criminal justice system, and it would not affect her ability to be fair and impartial. Id. at PageID 3625. She also mentioned that she and her husband would be accepting an adopted child into their home during the time set for trial. Id. at PageID 3626. She thought she would be able to focus regardless of that situation. Id. at PageID 3628. She said that, if instructed, she could put out of her mind any evidence related to the drug trafficking charges in the indictment Id. at PageID 3676.

Judge Spaeth asked if any venireperson knew the defendant Id. at PageID 3458. Although Juror 314 admitted knowing several of the witnesses, she did not admit to knowing Dr. Blankenburg although according to the Affidavits submitted in post-conviction, one or more of Juror 314's male children had been his patients, which was the sort of information other venirepersons revealed in response to that question and in her presence.

Petitioner complains that Juror 314 remained mute when asked about filling prescriptions Blankenburg had written, but gives only a lengthy and non-specific record reference to questions about knowing witnesses (ECF No. 23-1, citing Voir Dire Tr. pp 34-72 and 93-99). In the absence of something more specific about this relationship — e.g., that many of Blankenburg's prescriptions were filled at this particular pharmacy — the Court does not regard any concealment about "professional relationship" as proven.

Juror 314 certainly did not disclose during voir dire that she had ever expressed the strong opinions about Blankenburg's guilt attributed to her by the Affiants. Had she disclosed that she had once held those opinions (if she had), Judge Spaeth would undoubtedly have examined her closely about how she had formed them and whether she could put them aside. If she held those opinions at the time of trial, she would clearly have been disqualified for cause.

The trial judge had the opportunity to confront Juror 314 with the accusations made against her by her former co-workers, but did not do so. Instead, he made a "paper" credibility finding. His findings about Juror 314 were based on observations during voir dire on October 9, 2009, just over four years before he credited her credibility in dismissing the post-conviction petition (SCR, ECF No. 8-1, PageID 558).

Judge Spaeth made his credibility findings on the basis of Calhoun, supra, and the Twelfth District majority affirmed on that basis. In Calhoun, the Ohio Supreme Court reiterated that post-conviction proceedings are not constitutionally required and that the defendant's rights are limited by the statute creating the remedy, Ohio Revised Code § 2953.21. 86 Ohio St. 3d at 281. Thus "a criminal defendant seeking to challenge his conviction through a petition for postconviction relief is not automatically entitled to a hearing." Id. at 282, citing State v. Cole, 2 Ohio St.3d 112 (1982). Rather, "before a hearing is granted, `the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness." (Emphasis added.)" Id. at 283, citing State v. Jackson, 64 Ohio St.2d 107 (1980), at syllabus.7

In the Calhoun case, the court of appeals had applied the usual Ohio (and indeed federal) rule for considering summary judgment motions which requires the trial court to accept affidavits submitted on such a motion as true. In the post-conviction context, the Ohio Supreme Court disagreed. It held that, because affidavits are sworn, they should be given "due deference." However, trial judges were not required to accept their truth as would be the case on a summary judgment motion, because the contrary holding "would require a hearing for every postconviction relief petition," a holding that would be at odds with the postconviction statute. Id. at 284. The court offered guidelines in evaluating postconviction affidavits:

Judge Spaeth accurately recited the content of the two affidavits Petitioner submitted (Order Denying Petition for Post-Conviction Relief, SCR, ECF No. 8-1, PageID 561). Then he spends a page discussing the State's reliance on the aliunde rule as a basis for rejecting the affidavits without expressly deciding that issue. Id. at PageID 562-63. He notes that Juror 314 had agreed to put aside whatever she may have read or heard in the media about the case. He notes his ability at the time of trial to observe Juror 314's demeanor. Id. at PageID 565. Having discussed Calhoun, he fails to expressly apply any of the factors in Calhoun to his evaluation of the affidavits, but rejects them summarily. Id.

The factors enumerated in Calhoun are certainly common sense factors to apply to judging the credibility of an affiant. Judge Spaeth was indeed the judge who tried the case, satisfying factor 1. While the two affidavits report parallel expressions by Juror 314, they do not on their fact appear to have been drafted by the same person: they are differently formatted and notarized by different notaries public.8 As to the hearsay question, T.B.'s affidavit relies heavily on what D.M. told T.B. and is therefore based on hearsay.9 D.M.'s affidavit, however, is based directly on his alleged conversation(s) with Juror 314. As to factor 4, there is no indication either of the affiants was related to Blankenburg or was otherwise interested in the outcome. As to factor 5, there was no evidence at trial about these alleged prior statements of Juror 314.

Having read the same affidavits, on the first post-conviction appeal, the Twelfth District found them sufficiently persuasive to remand for an evidentiary hearing. On the second appeal they did not enforce that ruling, but concluded Judge Spaeth had not properly granted summary judgment. Blankenburg II, supra. Instead, they relied in affirming on a trial judge's discretion not to conduct an evidentiary hearing.

In dissent, Judge Ringland emphasized that the trial judge, by denying an evidentiary hearing, did not have the opportunity to evaluate the demeanor and credibility of either the affiants or of Juror 314 when confronted with the affidavits. This Court concludes that such an opportunity is necessary to ensure the fairness of the jury trial Blankenburg received.

In doing so, the Court does not purport to conclude that Judge Spaeth abused his discretion in not holding an evidentiary hearing. The Twelfth District decided that he had not and its decision is not reviewable in habeas. Sinistaj v. Burt, 66 F.3d 804 (6th Cir. 1995). Rather, the question over which we do have jurisdiction is whether his decision, as affirmed by the Twelfth District, embodies an unreasonable determination of the facts based on the evidence that was before him.

First of all, there is no reason prima facie to doubt the veracity of the affiants. The affiants are not related to Blankenburg in any way that has been shown, except for filling prescriptions he had written. There is nothing in the record to suggest they are sympathetic with the conduct he was convicted of committing. Their recount of the circumstances in which Juror 314 spoke are consistent with truth: co-workers sharing reactions to a local case.

Second, the trial judge's crediting of Juror 314 was on the basis of a four-year-old impression, formed in the midst of voir dire in which many veniremen were questioned. She actually had a basis on which the judge would have excused her, to wit, knowing the defendant at least through having children who were patients. Most importantly, she was credited without being confronted with the strong evidence against her.

The Court is not saying that, ultimately, Juror 314 must be found to have been biased. After an evidentiary hearing at which all three of these witnesses testify, it may be that the Ohio courts' decision is sustainable. All that is required at this stage is to decide that the evidence before Judge Spaeth does not sustain the conclusion he reached.

This is not a situation where the state court error could be found to be harmless or not material. Errors of a structural nature cannot be harmless. Arizona v. Fulminante, 499 U.S. 279 (1991). Examples include judicial bias (Railey v. Webb, 540 F.3d 393 (6th Cir. 2008), citing Washington v. Recuenco, 548 U.S. 212 (2006), and Sullivan v. Louisiana, 508 U.S. 275, 283 (1993)), Tumey v. Ohio, 273 U.S. 510 (1927)). A trial jury which includes a juror who is determined to convict and who fails to disclose her prior bias cannot return a verdict which can stand. The Supreme Court has recently reminded us that even exposure of a jury to testimony tending to produce a conviction or sentence based on a defendant's race requires correction even through the extraordinary measure of granting a motion for relief from judgment under Fed. R. Civ. P. 60(b)(6). Buck v. Davis, 580 U.S. ___, 137 S.Ct. 759, 197 L. Ed. 2d 1 (2017).

Having concluded that the Ohio courts' decision is not a reasonable determination of the facts on the basis of the evidence of record, this Court is authorized to conduct an evidentiary hearing to determine the facts as they relate to this claim. Cullen v. Pinholster, 563 U.S. 170 (2011), precludes such a hearing only if the state court decision satisfies 28 U.S.C. Sec. 2254(d)(2) which is not the case here.

Conclusion

It is therefore respectfully recommended that Blankenburg's First Ground for Relief be DISMISSED WITH PREJUDICE and the Second Ground for Relief be GRANTED to the extent of concluding that the state courts' decision is not a reasonable determination of the facts on the basis of the evidence presented. A final recommendation on Ground Two and on any certificate of appealability must await the outcome of an evidentiary hearing. Counsel for Petitioner shall promptly file a motion for such a hearing, stating which witnesses he would call and what their expected testimony would be.