REPORT AND RECOMMENDATIONS ON REMAND

MICHAEL R. MERZ, Magistrate Judge.

This habeas corpus case is before the Court on remand from the United States Court of Appeals for the Sixth Circuit. In an unpublished opinion, that court affirmed in part and reversed in part this Court's dismissal of Smith's Petition. Smith v. Warden, Toledo Corr. Inst., ___ F. App'x ___, 2019 U.S. App. LEXIS 18196 (6th Cir. Jun. 18, 2019). This Court had denied relief on all six of Petitioner's claims. Smith v. Warden, 2017 U.S. Dist, LEXIS 17883 (S.D. Ohio Feb. 8, 2017) (Black, J.). The circuit court reversed our conclusion that Smith's claim under Brady v. Maryland, 373 U.S. 83 (1963), was barred by Smith's procedural default in presenting it to the state courts, concluding instead that the default was excused by ineffective assistance of appellate counsel. 2019 U.S. App. LEXIS 18196 at *51-52. The court remanded for our consideration of the merits of the Brady claim and Smith's seventh ground for relief, a freestanding ineffective assistance of appellate counsel claim. The remand was effective as of the issuance of the circuit court's mandate, which was received on July 10, 2019 (ECF No. 100). Thus, jurisdiction of the case has now been returned to this Court.

District Judge Black, to whom this case is assigned, has confirmed that it remains referred to the undersigned. Since the remanded issues are post-judgment, the reference is governed by 28 U.S.C. § 636(b)(3), requiring a report and recommendations.

Once this Court received the circuit court's mandate (ECF No. 100), it ordered the parties to brief the remanded issues (ECF No. 101). In doing so, the Magistrate Judge noted:

Id. at PageID 3192, quoting Smith, 2019 U.S. App. LEXIS 18196 at *47-48. The requested briefing has been filed (ECF Nos. 102, 103, 113, 114) and Petitioner has filed, upon leave granted over Respondent's Objection, a Reply Brief (ECF No. 110). The remanded issues are therefore ripe for decision.

Analysis

Prior Course of these Habeas Proceedings

The Magistrate Judge's initial Report and Recommendations was based on the pleadings, the State Court Record, oral argument, and post-argument briefing (Report, ECF No. 80, PageID 2984). Among the pleaded grounds for relief were two that are at issue on remand:

(Report, ECF No. 80, at PageID 2984, 2985, quoting Petition, ECF No. 1-1, PageID 29-36, 50).

The Warden had defended Ground One by claiming it was procedurally defaulted "because Smith never presented it to the Ohio Supreme Court on direct appeal." (Report, ECF No. 80, PageID 2993, citing Return of Writ, ECF No. 12, PageID 100: "Smith never presented any of his assignments of error in the state Court of Appeals to the Ohio Supreme Court.")

In the Report and Recommendations, the Magistrate Judge found Smith's response to this defense unavailing1 and recommended Ground One be dismissed with prejudice as procedurally defaulted (Report, ECF No. 80, PageID 3001). District Judge Black adopted the Report (ECF No. 85) and later issued a certificate of appealability as to Ground One:

(Order Granting Motion to Clarify, ECF No. 93, PageID 3118). On Respondent's Motion to Alter Judgment (ECF No. 94), Judge Black amended the certificate of appealability on Ground One to read:

(Order, ECF No. 98, PageID 3148). This is the certificate on which the Sixth Circuit acted. Smith, 2019 U.S. App. LEXIS 18196, *47 n.4. Because it had never expanded the certificate itself to include the merits of the Brady claim, the circuit court did not formally decide the merits. Instead, it remanded

Id. at *47-48. The circuit court also remanded Smith's freestanding ineffective assistance of appellate counsel for failing to raise the Brady claim on direct appeal, with the caveat that this "claim is subject to AEDPA deference." Id. at *50.

In obedience to the mandate, this Report considers these three issues in turn.

1. Did the Ohio First District Court of Appeals decide the Brady claim on the merits?

Petitioner asserts the state courts did not decide his Brady claim on the merits (Brief Answering Questions on Remand, ECF No. 102, PageID 3193-99). In response to this position, the Warden quotes the First District Court of Appeals' decision on Smith's first application to reopen the direct appeal under Ohio R. App. P. 26(B):

(Response on Remand, ECF No. 103, PageID 3225-26, quoting State v. Smith, 1st Dist. Hamilton No. C-090645 (Feb. 7, 2011) (unreported; copy at State Court Record, ECF No. 75, PageID 2634-35.)

In reaching this conclusion, the First District was not deciding Smith's Brady claim on the merits, but rather the merits of his claim of ineffective assistance of appellate counsel for failing to raise a Brady claim on direct appeal. Of necessity the First District had to consider, as a threshold matter, the merits of the underlying Brady claim, because it cannot be ineffective assistance of appellate counsel to fail to raise a claim that would have had no merit in any event. But it is well understood in Ohio law that raising a claim of ineffective assistance of appellate counsel does not bring the underlying claim before the court of appeals on the merits. An Ohio App.R. 26(B) application "preserves for habeas review only the [ineffective assistance of appellate counsel] arguments, not the underlying substantive arguments." Wogenstahl v. Mitchell, 668 F.3d 307, 338 (6th Cir. 2012), citing Lott v. Coyle, 261 F.3d 594, 612 (6th Cir. 2001). To reach the merits of the underlying claim, the appellate court would first have to vacate its prior decision and require inclusion of the new claim in the reopened appeal. It did not do so, so the merits of the Brady claim were not formally decided by the First District.

2. Is Smith's Brady Claim Meritorious?

The State has a duty to produce exculpatory evidence in a criminal case. If the State withholds evidence and it is material, the conviction must be reversed. Brady v. Maryland, 373 U.S. 83 (1963). To achieve this goal, "Brady held `the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.'" Kyles v. Whitley, 514 U.S. 419, 432 (1995), quoting Brady, 373 U.S. at 87.

"There are three components of a true Brady violation: [(1) t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [(2)] that evidence must have been suppressed by the State, either willfully or inadvertently; and [(3)] prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

Petitioner argues that the Sixth Circuit

(Brief, ECF No. 102, PageID 3199.) Despite the awkwardness of the citations, the Sixth Circuit did make the findings Petitioner summarizes. Smith argues these findings constitute the law of the case and are therefore binding on this Court. Id. at PageID 3201, citing Edmonds v. Smith, 922 F.3d 737, 739 (6th Cir. 2019); Scott v. Churchill, 377 F.3d 565, 569-70 (6th Cir. 2004); United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990); 15 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FED. PRAC. & PROC. §3867 (4th ed.).

Respondent disagrees, asserting that "[i]f the law of the case were so clear, there would not be a remand."

(Warden's Brief, ECF No. 103, PageID 3227-28).

The Sixth Circuit gave its reason for not deciding the Brady claim on the merits itself: Judge Black's certificate of appealability did not encompass that issue and the circuit court had not expanded the certificate to include that issue. Smith, 2019 U.S. App. LEXIS 18196, *47. The court was, in this Court's reading, merely being careful of its jurisdiction, as a circuit court has appellate jurisdiction only over issues specified in a certificate of appealability. 28 U.S.C. § 2253. Federal courts must be especially careful not to exceed their jurisdiction to the point of noting lack of jurisdiction sua sponte. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908).

Although the Sixth Circuit formally returned the Brady claim to this Court for decision, it made a number of specific findings on issues that underlie the Brady claim. In concluding that appellate counsel's performance was objectively unreasonable, it found "[t]he Brady claim was both significant and obvious." Smith, 2019 U.S. App. LEXIS 18196, *39. As to materiality it noted: "even the trial judge admitted that a jury might find the suppressed lab notes persuasive." Id. at *39-40. On the prejudice prong of the Strickland analysis, it noted that the standard for establishing a Brady claim is "relatively lax," requiring only proof that the government's suppression of evidence "`undermines confidence in the outcome of the trial." Id. at *42, quoting Kyles, 514 U.S. at 434; United States v. Bagley, 473 U.S. 667, 678 (1985). It noted that the materiality test does not depend on the idiosyncrasies of the particular factfinder in the case and suggested the trial judge may have misconstrued Brady in denying the motion for new trial when he appeared to make the decision turn on the fact that the case was tried to him, sitting as the finder of fact, rather than to a jury. Id. at *43-44.

The circuit court then determined "there was a reasonable probability of a different outcome had the lab notes been disclosed to the defense" and then provided its rationale for how the evidence might have been viewed. Smith, 2019 U.S. App. LEXIS 18196, *44-46. Assessing the evidentiary value of the lab notes against the record as a whole, which Brady requires, it concluded:

Id. at *46-47. Thus, the circuit court, without formally deciding the Brady claim, reached conclusions on every element of the claim.

How binding are these conclusions on remand? Petitioner asserts

(Brief, ECF No. 102, PageID 3202.) While that is an accurate description of Judge Stranch's words, it does not provide any analysis of how the law of the case doctrine should apply here, except for arguing a distinction between this case and Mapes v. Tate. Id. at PageID 3201-02 n.4, citing 388 F.3d 187 (6thCir. 2004).

Respondent argues that the law of the case doctrine does not apply and that "it would work an injustice to rubber-stamp dicta from the Sixth Circuit rather than to conduct a full review." (Brief, ECF No. 103, PageID 3228). Respondent's Brief then recites the findings of fact in the First District's decision and reminds us that they are entitled to a presumption of correctness. Id. at PageID 3229-30. He then references additional testimony from the trial which supports the guilty verdict. Id. at PageID 3230-35. Rehearsing the elements of a proper Brady claim, Respondent argues Dr. Heinig's testimony regarding the DNA testing was not exculpatory because it did not endorse the defense theory about DNA at trial. Id. at PageID 3235-38. Admitting that the lab notes were not produced by the State, Respondent asserts "[t]he question really is whether the evidence was material." Id. at PageID 3239. Respondent then argues there is no materiality because there was no prejudice. Id. at PageID 3239-41.

"Under the doctrine of law of the case, findings made at one point in the litigation become the law of the case for subsequent stages of that same litigation." United States v. Moored, 38 F.3d 1419, 1421 (6thCir. 1994), citing United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993). "As most commonly defined, the doctrine [of law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618 (1983), citing 1B JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 0.404 (1980); accord: Patterson v. Haskins, 470 F.3d 645, 660-61 (6th Cir. 2006); United States v. City of Detroit, 401 F.3d 448, 452 (6th Cir. 2005). "If it is important for courts to treat like matters alike in different cases, it is indispensable that they `treat the same litigants in the same case the same way throughout the same dispute.'" United States v. Charles, 843 F.3d 1142, 1145 (6th Cir. 2016), quoting BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT 441 (2016).

White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967).

"The purpose of the doctrine is twofold: (1) to prevent the continued litigation of settled issues; and (2) to assure compliance by inferior courts with the decisions of superior courts." United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990) (citation omitted).

Howe v. City of Akron, 801 F.3d 718, 739-740 (6th Cir. 2015).

The law of the case doctrine is not an appropriate basis for denying relief when the statement of the law in an appellate opinion is both dictum and in error. Landrum v. Anderson, 813 F.3d 330, 334 n.1 (6th Cir. 2016), citing United States v. McMurray, 653 F.3d 367, 375 (6th Cir. 2011), overruled on other grounds by Voisine v. United States, 136 S.Ct. 2272 (2016).

The mandate rule is a specific application of the law-of-the-case doctrine. The basic tenet of the mandate rule is that a district court is bound to the scope of the remand issued by the court of appeals. United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999). The mandate rule is a distinct concept which preserves the hierarchy of the court system. Scott v. Churchill, 377 F.3d 565, 570 (6th Cir. 2004).

Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir. 2006). "Where there is substantial doubt as to whether a prior panel actually decided an issue, the district court should not be foreclosed from considering the issue on remand." Id. at 539, citing United Artists Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 398 (3rd Cir. 2003).

The cited authorities refer to the parts of judicial decisions which count for law of the case purposes as "findings," decisions of "issues" or "matters." This Court regards the Sixth Circuit opinion as embodying what amount to conclusions on mixed questions of law and fact. The court pronounced no new rule of law: its recitation of the elements of a Brady claim are not contested by Respondent. Instead, it applied that law to the facts of record and reached conclusions about what the law required as applied to those facts. It had the entire state court record before it and it did not assume any facts purely for the sake of argument. On remand this Court has before it exactly the same record as was before the circuit court. To reach different conclusions on the application of law to those facts would completely undermine the purpose of the law of the case doctrine. To put it another way, the Sixth Circuit has decided on the record as a whole that the lab notes are Brady material and withholding them violated the Brady doctrine. Respondent has offered no persuasive reason why this Court should not adopt those conclusions as its own.

3. Smith's Freestanding Ineffective Assistance of Appellate Counsel Claim

The Sixth Circuit also remanded for decision on the merits that portion of Smith's Ground Seven, his freestanding ineffective assistance of appellate counsel claim, that is not procedurally defaulted, to wit, his claim that his appellate attorney provided ineffective assistance of appellate counsel when she did not raise the Brady claim on direct appeal.

The remedy for the Brady violation will be the issuance of a conditional writ of habeas corpus. In obedience to that writ, the State will either release Smith or retry and reconvict him. In either even, the judgment of conviction will be vacated. Whether it is replaced with an unconditional release or a new judgment of conviction which will then be appealable, the question of whether Smith received ineffective assistance of appellate counsel on his first direct appeal will be moot. If the Court follows the Magistrate Judge's recommendation as to the Brady claim, it should also dismiss Ground Seven as moot.

Conclusion

In accordance with the foregoing discussion, it is respectfully recommended that the Court issue a conditional writ of habeas corpus requiring the State of Ohio to release Smith unconditionally or retry him within six months of the date of judgment.

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within fourteen days after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days because this Report is being served by mail. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).