MICHAEL R. MERZ, Magistrate Judge.
This habeas corpus case is before the Court on Petitioner's Objections (Doc. No. 46) to the Magistrate Judge's Report and Recommendations recommending the Amended Petition be dismissed with prejudice (Doc. No. 45, the "Report"). Judge Spiegel has recommitted the case for reconsideration in light of the Objections (Doc. No. 47). The Warden has not filed a response to the Objections and the time for doing so under Fed. R. Civ. P. 72(b) has expired.
Chaz Minor, before his incarceration, was a drug dealer. As a jury concluded, on April 1, 2005, Minor and his business partner, Larry Lewis, jointly murdered Kevin Berry, a competing drug dealer, for intruding on their "territory" in the Fay Apartments complex in Cincinnati, Ohio. Having been convicted, he was sentenced to fifteen years to life for the murder, plus three years on a firearm specification. He now seeks vindication by way of habeas corpus.
Minor pleads two grounds for relief; (1) prosecutorial misconduct in closing argument, and (2) prosecutorial misconduct by failing to disclose impeaching evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The First Ground for Relief was pled when the Petition was filed on August 28, 2008 (Petition, Doc. No. 2). The Report recommends dismissing this claim as procedurally defaulted and Petitioner raises no objection (Report, Doc. No. 45, PageID 1513-22). The Report may thus be adopted as to Ground One without further analysis.
Petitioner argues only Ground Two, his Brady claim, which was added January 13, 2014, after Minor had presented it unsuccessfully to the Ohio courts in a delayed motion for new trial (Amendment to Petition, Doc. No. 40). The Report recommends that Ground Two be dismissed as barred by the statute of limitations (Report, Doc. No. 45, PageID 1525), and as barred by Minor's procedural default in timely presenting the claim to the Ohio courts (Id. at PageID 1526). The Report also finds Minor's evidence of actual innocence unpersuasive and therefore insufficient to excuse the procedural default. Id. at PageID 1526-29.) Minor objects to each of these conclusions which will be discussed seriatim.
28 U.S.C. § 2244(d)(1) imposes a 1-year period of limitation running from the latest of:
Magistrate Judge Hogan, to whom this case was referred prior to his retirement, was called upon to decide Petitioner's Motion to Amend to add his Brady claim. Judge Hogan found that the conviction became final on September 4, 2007, the last date on which Minor could have sought review on certiorari from the United States Supreme Court (Report and Recommendations, Doc. No. 29, PageID 1248, n. 4.) The original Petition was therefore timely because it was filed less than a year later, on August 28, 2008. However, the Motion to Amend was not filed until July 1, 2009. As Judge Hogan noted, "the Sixth Circuit has held that `a motion to amend a habeas corpus action to include "entirely new arguments" filed after the statute of limitations has expired is futile' because `such claims do not relate back to the date the initial habeas petition was filed.'" Id. at PageID 1248-49. He concluded that the Brady claim would not relate back and would therefore be barred if § 2244(d)(1)(A) applied to the case. He also rejected Minor's attempt to bring this case within § 2244(d)(1)(B), noting that the Sixth Circuit had held this section was not applicable to Brady claims. Id. at PageID 1251, citing Wood v. Spencer, 487 F.3d 1, 6 (6
The case was stayed December 11, 2009, and reinstated in September 2013, after the state courts refused relief (Order, Doc. No. 34). The Court allowed the Motion to Amend so that the Brady claim could be decided on the merits unless barred by the statute of limitations or procedural default (Order, Doc. No. 38, PageID 1433-34).
The Report concluded that Minor had made little use of the opportunity Judge Hogan had given him to show due diligence:
(Report, Doc. No. 45, PageID 1524.) The First District Court of Appeals also found Minor had not displayed the requisite due diligence to permit a new trial:
State v. Minor, Case No. C-120424 (1
In his Objections, Minor relies on Jefferson v. United States, 730 F.3d 537 (6
Minor also relies on United States v. Tavera, 719 F.3d 705 (6
In this case, the date on which Minor alleges he discovered relevant facts so as to come within § 2244(d)(1)(D) is April 2009 when Minor learned from Dante Graves that Graves' sister, Jamita Weaver, had a juvenile adjudication for falsely reporting that she had been sexually assaulted. That juvenile adjudication was not revealed to Minor at the time of trial, either by the State or by Dante Graves.
Minor argues he was entitled to rely on the State's response to his discovery demand in the underlying criminal case. The demand reads in its entirety "[t]he Defendant by and through counsel moves this Honorable Court to order the Prosecutor to disclose to this Defendant's counsel all evidence, known or which may become known to the Prosecutor, which is favorable to the Defendant and material either to guilt or punishment." (Doc. No. 32-1, PageID 1286.) The response, made by Assistant Prosecuting Attorney Michael Bachman on November 18, 2005, states "[t]he State is unaware of evidence favorable to the Defendant. If the State becomes aware of additional discoverable information, this discovery response will be supplemented accordingly." (Copy at Motion to Reopen, Doc. No. 32-1, PageID 1287.)
As the State argued in the new trial proceedings, Jamita Weaver's juvenile delinquency adjudication at age twelve for falsification is not evidence which could have been used to impeach her at trial. Under Ohio law, a juvenile adjudication is not admissible in evidence. Ohio R. Evid. 609(D). This rule is not overcome by the Confrontation Clause as explicated in Davis v. Alaska, 415 U.S. 308 (1974), because it does not go to Weaver's bias or interest in the outcome of the case.
The burden of showing due diligence to come within the later starting date of the statute of limitations in § 2244(d)(1)(D) is on the habeas petitioner. Judge Hogan found as of the time of the stay in 2009 that Minor had not satisfied that burden, but gave him an opportunity to do so on remand. The Report found that Minor had added "virtually no additional evidence" on this point (Report, Doc. No. 45). Minor's counsel tries to turn this around and put the onus for the lack of evidence on the Magistrate Judge: "The record is not developed to the satisfaction of the Magistrate Judge. He could order discovery on issues to resolve his questions. A hearing could be held on the Brady claim." (Objections, Doc. No. 46, PageID 1535.) But ours is not an inquisitorial system of justice where judges order discovery to answer their questions. Rather, in our adversarial system, it is for the parties to produce evidence. Moreover, Minor has never moved for discovery or an evidentiary hearing in this Court and Habeas Rule 6 provides for discovery only on motion and for good cause shown.
Whatever he may or may not have known before trial, Minor knew at trial that Jamita Weaver had testified she saw Minor shoot Kevin Berry and that Minor had come to her apartment with her brother, Dante Graves, shortly after the shooting to try to get her to take the gun. He was a close enough friend of Dante Graves at the time to ask his assistance with the weapon. And yet he and Graves did not have the conversation about Jamita's juvenile adjudication until April 2009. Why not?
Minor says that is fully explained by Graves Affidavit which says he was out of town at the time of the trial (Objections, Doc. No. 46, PageID 1535). That is not what Graves' Affidavit says. Instead, he avers he was out of town from March 17, 2005, to April 4, 2005 (Graves' Affidavit, Motion to Reopen, Doc. No. 32-1, PageID 1275). The trial during which Jamita Weaver testified began on December 7, 2005, and Weaver testified that day (Trial Tr., Return of Writ, Doc. No. 13-6, PageID 214). Graves' Affidavit says nothing about his being out of town during the trial. In fact, he claims (on June 9, 2009) that Jamita Weaver admitted to him she "lied about her knowledge of the shooting of Kevin Berry because she told me so on or about January 4, 2006. She told me she lied to the police to get back at me and my friend Chaz Minor for my beating her during our confrontation." (Graves Affidavit, Doc. No. 32-1, PageID 1275.) Graves' "friend," Chaz Minor, had been sentenced to life imprisonment on January 3, 2006, the day before this revelation, and yet Graves did not tell Minor he had been sentenced to life imprisonment on the perjured testimony of Graves' sister until more than three years later. And Minor, who presumably was surprised and outraged about Weaver's perjured testimony, did not talk to Graves about it for more than three years? This just does not add up to due diligence within the meaning of § 2244(d)(1)(D).
The Report also recommends, independent of the statute of limitations question, that Minor's Brady claim be found procedurally defaulted by his failure to timely file his new trial motion in the state courts (Report, Doc. No. 45, PageID 1525-26).
Minor objects that Judge Martin's decision denying the new trial motion does not state a reason for the denial (Objections, Doc. No. 46, PageID 1538). That is true; the denial was summary, although the State relied on the lack of timely filing (Entry, Motion to Reopen, Doc. No. 32-8, PageID 1334). What counts, of course, is the last reasoned state court decision on the point. 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 (6
The court of appeals explained:
State v. Minor, Case No. C-120424 (1
Minor complains that this is not enough explanation: "[t]he Court of Appeals never noted what aspect Minor's obligation was lacking: timing, diligence or the persuasive nature of the evidence." (Objections, Doc. No. 46, PageID 1538.) The explanation seems clear enough to this Court: Minor had the burden of proving diligence and "failed to sustain this burden. . ."
Minor objects further that this holding of the First District Court of Appeals is contrary to the Supreme Court's holding in Banks v. Dretke, 540 U.S. 668 (2004), and is therefore not entitled to AEDPA deference under 28 U.S.C. § 2254(d)(1) (Objections, Doc. No. 46, PageID 1539). But that is not the proper analysis. Under Maupin v. Smith, 785 F.2d 135, 138 (6
The Report concluded Minor had not shown persuasive new evidence of actual innocence sufficient to overcome the bar of the statute of limitations or his procedural default in state court (Report, Doc. No. 45, PageID 1526-29).
While Minor objects, the Magistrate Judge does not believe additional analysis is needed beyond what is offered in the Report.
Based on the foregoing analysis, it is again respectfully recommended that the Petition herein be dismissed with prejudice as barred by the statute of limitations and Minor's procedural default.