MICHAEL R. MERZ, Magistrate Judge.
This habeas corpus case is before the Court on Petitioner's Objections (Doc. No. 14) to the Magistrate Judge's Report and Recommendations (the "Report," Doc. No. 10). Judge Rose has recommitted the case for reconsideration in light of the Objections (Recommittal Order, Doc. No. 16). On the same day he filed his Objections, Jackson also moved to expand the record (Doc. No. 13), a motion the Warden opposes (Doc. No. 17) and on which Jackson has filed a Reply in support (Doc. No. 18).
In his First Motion to Expand the Record (Doc. No. 8), which was denied as part of the Report, Jackson sought to add the following documents:
In his Second Motion to Expand the Record (Doc. No. 13), Jackson seeks to add the following documents to the record:
Jackson argues that these documents show his actual innocence and a Brady violation in this case (Motion, Doc. No. 13, PageID 2059). The Warden opposes the Motion on the grounds consideration of these documents is precluded by Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388 (2011), and in any event they are not sufficient new evidence of actual innocence to satisfy the "gateway" innocence standard of Schlup v. Delo, 513 U.S. 298, 316 (1995). Because the ruling on the First Motion to Expand was made as part of the Report and the Report has now been recommitted, the Magistrate Judge considers all of these tendered exhibits together.
In his Reply, Jackson argues first that Pinholster does not preclude an evidentiary hearing on whether a petitioner has met the Schlup standard (Reply, Doc. No. 18, PageID 2141). The Court agrees; Pinholster only applies to the determination of whether the state court judgment is contrary to or an unreasonable application of clearly established Supreme Court precedent.
Jackson next argues that Pinholster does not limit a habeas court's authority under 28 U.S.C. § 2254(a) to release a prisoner being held in violation of the Constitution. Actually, a federal court's power to grant the writ is conferred by 28 U.S.C. § 2241. Section 2254(a) limits that power in cases where a person is confined on judgment of a state court to custody that is unconstitutional; the balance of § 2254 provides further procedural limitations on that power. In other words, § 2254(a) does not create authority to decide state prisoner habeas cases on evidence not before the court pursuant to all of § 2254.
Detrich v. Ryan, 677 F.3d 958 (9
Jackson further argues, in opposition to the Warden's position, that his tendered exhibits are "new" within the meaning of Souter v. Jones, 395 F.3d 577, 596, n.9 (6
133 S. Ct. at 1928, 185 L. Ed. 2d at 1027.
The Warden argues that Jackson has not shown the tendered documents are part of the state court record. Respondent is incorrect as to Exhibit J. With the exception of the handwritten notations on this exhibit, which are minimal and which the Court will ignore, Exhibit J is the genuine docket of the Montgomery County Clerk of Courts on this case, at least through the date on which it shows it was generated by the Clerk's online system, August 10, 2011 (available at
As to the remaining tendered exhibits, while they were not part of the record before the jury, they appear to be authentic official documents and they are within the description of documents permitted to be used to expand the record under Rule 7(a) of the Rules Governing § 2254 Cases. Under Pinholster, they cannot be considered in deciding the question presented by 28 U.S.C. § 2254(d)(1), but the Court can consider them in determining whether Jackson has met the Schlup gateway innocence standard.
The question before the Court is whether the tendered exhibits, when considered with the record that was before the jury, satisfy the Schlup standard, reiterated in Souter, supra:
Id. at 590.
Jackson argues that these exhibits satisfy the Schlup standard as follows:
(Objections, Doc. No. 14, PageID 2151-52.) Jackson gives the Court no reference to which exhibits purportedly show these facts.
Id. at PageID 2152. Docket No. 6-6, at PageID 73 is Tom Horn's motion to be allowed to testify by deposition. The provided citation of PageID 152 is page 12 of Jackson's Brief on Appeal. PageID 824 is part of detective Pigman's testimony at the motion to suppress hearing held July 7, 2010. Two of these places contain no testimony of Pigman at all and the third location says nothing about Brandon Harris, but rather that Horn told Pigman he recognized the shooter, not that the shooter was Brandon Harris.
(Objections, Doc. No. 14, PageID 2153.) The referenced DNA report shows that there was a mixed DNA profile on a swab of the watch with the broken band or buckle found at the scene and the victim, Antione West, is excluded as a contributor.
Police Officer Henry Crist found that watch at the crime scene. Exhibit L is page five of Officer Crist's report that shows he recovered the watch from the floor at the crime scene (See Motion, Doc. No. 13-3, Ex. L at PageID 2074). Exhibit K is page six of that report and includes Crist's hypothesis that the watch was torn from the victim's arm during the struggle which ended in his death and the band was broken at that time (Motion, Doc. No. 13-2, Ex. K at PageID 2073). Jackson claims Crist's report could have been used to cross-examine him at trial and show that he had "falsely reported such watch was torn from victims
Crist testified at trial that he is a Trotwood Police Officer with duties of road patrol and as an evidence technician. (Trial Tr. Doc. No. 6-7, PageID 1097-98.) He arrived at the crime scene, Unit 4716 at 716 Kelford Place in Trotwood, at about 12:55 A.M., on March 20, 2010. The responding officers were Officers Davis and Douglas whom he contacted when he first arrived. Id. at PageID 1101. There was only one door to the crime scene apartment which was neither locked nor damaged. Id. at PageID 1105. Officer Crist did not testify at trial at all about the watch.
Exhibit M purports to be an email exchange between Brandon Henderson and Detective Pigman on March 26, 2010 (Motion, Doc. No. 13-4, Ex. M, PageID 2075). In his response to Pigman's email, Henderson states the victim, Antione West, is his cousin and Thomas Horn is his brother. Henderson claims he sold West his watch the same day West was killed. Jackson asserts this proves Henderson was at the crime scene and dropped his watch, but needed to exculpate himself by explaining to Pigman why his watch was there (Objections, Doc. No. 14, PageID 2157). Jackson notes that testimony from the DNA analyst excluded him as a contributor to the DNA on the watch. (Objections, Doc. No. 14, PageID 2157, citing Trial Tr., Doc. No. 6-9, PageID 1437-38.)
Henderson also states in the email that he had a conversation with Shevonda Leslie, the mother of one or more children of the victim, the day before the shooting in which she "said to us yall should beat him up 4 me, but she and us was all playing around because they [Leslie and West] go through [sic] this all the time." (Motion, Doc. No. 13-4, Ex. M, PageID 2075.) Henderson's statement about Leslie and West "getting into it a lot that week" is corroborated by Exhibit A, the police report of Leslie's complaint of domestic violence against West on March 19, 2010 (Motion, Doc. No. 8-1, Ex. A, PageID 1985-89).
Jackson claims this email shows Pigman perjured himself at trial when he says "His [Henderson's] name was never mentioned being at the apartment to me. Q. That night? A. That night, yes." (Objections, Doc. No. 14, PageID 2156, quoting Trial Tr. Doc. No. 6-10, PageID 1730-31.) This does not at all prove Pigman was perjuring himself. Henderson does not claim in the email that he was present during the shooting. Instead, he tells Pigman he came to 716 Kelford after he had been told his brother was shot. He does not say he identified himself to the police. Of course, both his brother (Horn) and his cousin (West) were there and it was the cousin, not the brother who was shot.
Defense counsel also asked Detective Pigman if cell phone records showed Henderson was in the area that night and Pigman responded that he had no "intel" about Mr. Henderson. Given the question that was asked, the answer should be read as saying that Pigman did not have any cell phone intelligence about Henderson. Earlier in the cross-examination he admitted having Henderson's name in connection with the investigation.
Jackson's theory apparently is that Henderson is the one who shot his cousin, Antione West, and that his email to Pigman, properly read, inculpates Henderson while Henderson is trying to exculpate himself. There is of course no testimony from Henderson and Pigman understood he was in Michigan and not coming back, so he could not be interviewed further. Jackson gives no account of how he came into possession of the email exchange between Pigman and Henderson.
Exhibit B is a report of Trotwood Police Officer Troy Dexter of his interviews with Brandon Harris and Phil Benson on the morning after the murder. Harris admitted being intimate with Leslie (Motion, Doc. No. 8-2, Ex. B, PageID 1990-91). Benson reported he was with Harris shortly after midnight when he got a phone call from Leslie reporting that West (identified in the report as Shevonda's baby's daddy) got shot. Assuming the truth of the contents of this report, it does nothing to exculpate Jackson.
Exhibit C is an Incident Report of a conversation between Trotwood Police Officer Yaney and an unnamed informant (allegedly one of west's best friends) on the morning of March 21, 2010, that the informant had heard from an unidentified third party that Leslie had admitted to another unidentified person that she set West up for a robbery of his drugs by Horn and Harris (Motion, Doc. No. 8-3, Ex. C, PageID 1992). This is of course at least triple hearsay. The unidentified third party could probably have testified to Leslie's admission because it was against her penal interest, but there is no way of assessing that third party's reliability.
Exhibit D reports conflicting statements by Thomas Horn to Detective Pigman, first that he could identify the shooter and it was Brandon Harris, then that it was an unidentified male who used to date Horn's cousin Brenda Harris (Motion, Doc. No. 8-4, Ex. D, PageID 1993). Between those two statements, Horn failed to pick Harris out of a photo array that included his picture.
Exhibit E is a handwritten statement of Thomas Horn on March 20, 2010. He recounts the shooting incident but says nothing that exculpates Jackson (Motion, Doc. No. 8-5, Ex. E, PageID 1994).
Exhibit F is Trotwood Police Officer Troy Dexter's March 22, 2010, Report of his interview with Donna Hayden, West's mother, around 2:00 A.M. on March 20, 2010 (Motion, Doc. No. 8-6, Ex. F, PageID 1995-96). She knew of the domestic dispute between Leslie and West, but did not believe it was connected Id. at PageID 1996. Dexter also reports finding the murder weapon.
Exhibit G is a report of police contact with Leslie and West on March 18, 2010, which explains more of the background of the domestic dispute (Motion, Doc. No. 8-7, Ex. G, PageID 1997). It does nothing to exculpate Jackson.
Exhibit H is Detective Pigman's report of March 22, 2010, of his interview with Brandon Harris at around 10:00 a.m. on March 20, 2010 (Motion, Doc. No. 8-8, Ex. H, PageID 1998-2000). He reports that Harris gave a confused account of his whereabouts on March 19-20 in the late evening and early morning. He admitted knowing Leslie, having met her when he got out of prison April 18, 2009, and having had oral sex from her during that evening. He had no visible signs of having been in a struggle. When the interview was over, several people had appeared to provide alibi statements for him.
Exhibit I is an additional report by Officer Quigley about the domestic violence report which, per West's sister Cassey, identifies a "Brandon" as having been at Leslie's residence on March 19, 2010 (Motion, Doc. No. 8-9, Ex. I, PageID 2001).
This "new" evidence as tendered by Jackson must be considered in light of the evidence actually presented at trial. The Second District Court of Appeals summarized the evidence in deciding Jackson's fourth and fifth assignments of error on direct appeal. It held
State v. Jackson, 2012-Ohio-2335, 2012 Ohio App. LEXIS 2057 (2
In addition to the weakness of the newly tendered evidence in itself, it does nothing to undermine the strong evidence against Jackson. In particular, it does nothing to rebut the testimony of Dion Sims that he loaned the firearm shown to be the murder weapon to Jackson several hours before the murder and that after the murder Jackson offered to pay for it instead of returning it. Jackson had the murder weapon when the murder happened, having acquired it the same day and having disposed of it the next morning.
Secondly, the newly tendered evidence does nothing to explain Jackson's suborning a perjured alibi from his girlfriend.
Admittedly, the newly-tendered evidence further undermines the credibility of Thomas Horn. However, trial counsel made extensive use of other material to attack Horn's credibility with the jury and ultimately it was for the jury to decide if he was credible or not.
Jackson has not shown he is entitled to pass through the actual innocence gateway recognized in Schlup.
In the Report, the Court analyzed Grounds One, Four, Five, Six, and Ten together as presenting one undefaulted claim under Jackson v. Virginia, 443 U.S. 307 (1979), that his conviction was supported by insufficient evidence (Report, Doc. No. 10, PageID 2028). Jackson objects and contends the Grounds for Relief must be read and analyzed separately. In this Supplemental Report, the Court proceeds on that basis.
The First Ground for Relief as pled in the Petition is:
(Petition, Doc. No. 1, PageID 8.)
In his Objections, Jackson states this is not a claim of insufficient evidence but, as supplemented by the Reply,
The Respondent's objection that Ground One as set forth in the Petition does not state a cognizable claim under the Constitution and it is also true that a habeas petition cannot "amend" his petition by incorporating by reference language from his appeal to the Ohio Supreme Court.
Rather than decide this claim on a pleading basis, however, the Court notes Jackson raised this claim as his first assignment of error on direct appeal. The Second District Court of Appeals decided that assignment as follows:
State v. Jackson, 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. ___, 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).
Jackson argues Ground One at PageID 2154-58 of his Objections, but much of this argument is devoted to the actual innocence claim. On the identification claim, he notes that Horn admitted he was very intoxicated during the shooting and this was confirmed by another eyewitness, Jeremy White (Objections, Doc. No. 14, PageID 2154). Nothing in this section of the Objections shows or even argues that the photo arrays were unduly suggestive. The fact that Horn was admittedly very intoxicated, which the jury heard, undermines his credibility in picking Jackson out in the photo array, but it does not prove the array itself was unduly suggestive.
The Second District properly cited the applicable Supreme Court precedent, Neil v. Biggers, supra, and Manson v. Brathwaitre, supra. Jackson merely asserts the application is unreasonable without saying why. The Court finds the Second District's conclusion on this Ground for Relief is neither contrary to nor an objectively unreasonable application of the relevant Supreme Court precedent.
Ground Two as pled in the Petition states:
(Petition, Doc. No. 1, PageID 9.)
Respondent argues this claim as pled does not state a claim for relief under the United States Constitution (Return of Writ, Doc. No. 7, PageID 1932). In his Reply, Jackson asserts that he has pled a claim of selective prosecution (Reply, Doc. No. 9, PageID 2005-06, citing Yick Wo v. Hopkins, 118 U.S. 356 (1886). On its face, Ground Two says nothing about selective prosecution.
In his Reply Jackson accuses the State of taking "it upon itself to overlook or just out right attempt to omit [sic] the Petitioner's claim of Double Jeopardy." Id. at PageID 2006. However, one combs the Petition in vain for any mention of the Double Jeopardy Clause. It is hardly surprising that, examining the Petition, Respondent did not understand Jackson was making a Double Jeopardy claim.
Jackson has done the same thing on Ground Two that he did on Ground One: treating his Petition as "amended" by his Traverse. This is unfair to the State because it does not advise them, in the one pleading they have a right to respond to, of what the actual claim is.
However, rather than decide this claim on the basis of this pleading difficulty, the Court proceeds to consider it on the merits because Jackson did raise a Double Jeopardy claim on direct appeal. The Second District decided it along with the related speedy trial claim as follows:
State v. Jackson, supra.
In his Reply, Jackson argues a second trial was precluded because he sought the mistrial "after the prosecutor has asked a witness [Dion Sims] a prejudicially improper question." (Reply, Doc. No. 9, PageID 2006.)
Jackson argues in his Objections that Sims' statement about why he changed attorneys — i.e., because he had taken a lie detector test — was false, the State knew it was false, but the State failed to correct the falsity and allowed Judge Tucker to rely on it in declaring a mistrial and finding no prosecutorial misconduct (Objections, Doc. No. 14, PageID 2159-65).
As proof of the "real" reason why Sims changed lawyers, Jackson refers the Court to Docket No. 6-2 at PageID 564 which is yet another Trotwood Police Report, this time of Detective Pigman's March 29, 2010, interview with Sims. Id. In that report Pigman says Cynthia Thompson told him Sims had not kept his appointment with her on the preceding Friday. David Mesaros, who was representing Sims during the interview, stated Sims changed lawyers because Thompson was his cousin. There is no record in that document of any statement by Sims himself as to why he changed lawyers. Furthermore, the report in question is attached to Jackson's pro se Motion for Leave to File a Delayed Motion for New Trial filed in the Common Pleas Court May 17, 2013, in which Jackson makes the same argument about prosecutorial misconduct made in his Objections.
Jackson's argument is that the first trial was not going well for the State so they essentially provoked the mistrial by asking a question and then not correcting the materially false answer.
Jackson has not proven that Sims' testimony about why he changed lawyers is materially false. All it has proven is that attorneys Thompson and Mesaros gave reasons different from one another and different from what Sims testified to in open court. This is insufficient to undermine Judge Tucker's conclusion that the mention of the lie detector test came out without any misconduct by the prosecutor. Moreover, whatever the police report shows, it was not before the court of appeals when it considered the direct appeal because the appellate decision was handed down almost a year before Jackson filed the delayed new trial motion. Indeed, that claim was never before the court of appeals because Judge Tucker denied the motion for new trial and Jackson never appealed.
"Once jeopardy attaches, prosecution of a defendant before a jury other than the original jury, excluding any contemporaneously empaneled and sworn alternates, is barred unless (1) there is a `manifest necessity' for a mistrial or (2) the defendant either requests or consents to a mistrial." Watkins v. Kassulke, 90 F.3d 138, 141 (6
In United States v. Jorn, 400 U.S. 470 (1971), the Court had held that a mistrial brought about with the consent of the defendant would bar reprosecution if the circumstances prompting the mistrial motion were brought about by prosecutorial or judicial overreaching. What would be necessary to constitute such overreaching was specified by the Court in Oregon v. Kennedy, 456 U.S. 667, 676 (1982), where the Court held that "[o]nly where the governmental conduct in question is intended to `goad' the defendant into moving for a mistrial" will the Double Jeopardy Clause bar retrial. There was no evidence before Judge Tucker or the court of appeals of any "goading" conduct by the prosecutor.
As to the evidence, such as it is, in the police report regarding the Sims' interview, Jackson has procedurally defaulted on any such claim by not appealing to the Second District from the denial of his Motion for Leave to File a Delayed Motion for New Trial. Failure to raise a constitutional issue at all on direct appeal is subject to the cause and prejudice standard of Wainwright. Murray v. Carrier, 477 U.S. 478, 485 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6
Jackson's Second Ground for Relief should be dismissed with prejudice.
Jackson's Third Ground for Relief as pled in the Petition reads:
(Petition, Doc. No. 1, PageID 11.)
Respondent asserted this Ground for Relief failed to state a cognizable constitutional claim, but the Report read it as a claim that the State had used Horn's testimony even though it knew the testimony was false (Report, Doc. No. 10, PageID 2025). This is consistent with Jackson's argument in his Reply (Doc. No. 9, PageID 2007-08). It is here that Jackson most concisely states his theory of actual innocence: "Petitioner contends that Thomas (Tom Tom) Horn and his cousin Brandon Henderson conspired with Shevonda Leslie, the deceased Antione West's girlfriend, to rob her boyfriend Antione West, something went wrong during the robbery and Antione ended up getting killed." Id. at PageID 2007.
The Report found that Jackson had made no such claim in the state courts (Report, Doc. No. 10, PageID 2035). It found instead that the only claims made in the state courts with any parallel were the Tenth and Eleventh Assignments of Error on direct appeal. The Report then quoted the Second District's opinion on these two assignments of error and concluded it was not an objectively unreasonable application of clearly established Supreme Court precedent Id. at PageID 2042.
Jackson's argument in his Tenth Assignment of Error was that the State should not have been permitted to impeach Thomas Horn with his prior statements which were inconsistent with his deposition testimony which was played at trial. The court of appeals decided that question purely as a matter of Ohio evidence and trial procedure law; it was not fairly presented to that court as a claim that the State knowingly used Horn's perjured testimony in violation of Giglio v. United States, 405 U.S. 150, 153 (1972), or Napue v. Illinois, 360 U.S. 264, 269 (1959).
The Eleventh Assignment of Error was broader, claiming prosecutorial misconduct by
State v. Jackson, supra, ¶ 88.
The Second District found there was not improper bolstering because, while the impeaching questions posed to Horn, "brought Horn's prior statements to the jury's attention, it did not vouch for them" Id. at ¶ 91. Respecting Tahira Elamin's testimony, the Second District actually found it was improper defense counsel conduct to suggest she committed perjury. Id. at ¶ 94. Obviously not every witness's misdescription of another person is perjured. Defense counsel had an ample opportunity to cross-examine on Elamin's physical description of the person she saw running from the building after the shooting. The court of appeals found the prosecutor did not make the argument attributed to the prosecutor in this Assignment of Error. Id. at ¶ 95. And finally, Judge Tucker had sustained a defense objection to the closing argument statement about why the jury had not heard the content of Dion Sims' 911 call and instructed the jury not to speculate about it. The Second District concluded "[i]n our view, there is no possibility that this comment affected the outcome of the trial." Id. at ¶ 97.
Jackson objects first that the record refutes the prosecutor's claim of surprise and affirmative damage made in support of its request to impeach its own witness. The critical point here is that there is no prohibition in the United States Constitution on a party impeaching its own witness and Jackson points to no Supreme Court precedent holding such impeachment to be prosecutorial misconduct.
With respect to the decision on the Eleventh Assignment of Error, Jackson repeatedly cites Giglio and Napue, supra, as if they hold that a prosecutor commits unconstitutional misconduct if the prosecutor does not call to a jury's attention all the inconsistencies in a witness's testimony. Supreme Court precedent requires no such thing. Exposure of inconsistencies in a witness's in court testimony or between that testimony and the prior statements of the witness is the responsibility of defense counsel. Weighing those inconsistencies is the responsibility of the jury. Failure of a prosecutor to point out inconsistencies does not amount to suborning perjury.
The Second District's decision on this claim for relief is not an objectively unreasonable application of the relevant Supreme Court precedent, which it cites, to wit, Smith v. Phillips, 455 U.S. 209 (1982), and Darden v. Wainwright, 477 U.S. 168 (1986). Jackson's Third Ground for Relief should be dismissed with prejudice.
While Jackson quarreled with the Report's lumping in Ground One, he agrees in his Objections that Grounds Four, Five, Six, and Ten should be considered together as establishing his claim that his convictions are based on insufficient evidence (Objections, Doc. No. 14, PageID 2170).
An allegation that a verdict was entered upon insufficient evidence states a claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6
Jackson, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6
In cases such as Petitioner's challenging the sufficiency of the evidence and filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), two levels of deference to state decisions are required:
Brown v. Konteh, 567 F.3d 191, 205 (6
Coleman v. Johnson, 566 U.S. ___, ___, 132 S.Ct. 2060, 2062 (2012)(per curiam).
A habeas court cannot consider post-trial evidence in deciding a Jackson v. Virginia claim. McDaniel v. Brown, 558 U.S. 120 (2010).
Jackson's whole argument on these combined Grounds for Relief asserts inconsistencies in the testimony of various State's witnesses. For example, he notes that his physical description does not match the description Tahira Elamin gave to police of the person she saw fleeing the scene (PageID 2170-72). He makes much of the fact that witnesses testified both of the victim's pockets were pulled inside out whereas Evidence Technician Crist's report says only that the right pocket was pulled inside out. Of course, the Crist report cannot be used to show there should be no deference under 28 U.S.C. § 2254(d)(1) because it was not before the Second District. McDaniel, supra. But more fundamentally that is an appropriate argument to make to a jury or to an Ohio appellate court on a manifest weight claim, but inconsistencies in the evidence are not inconsistent with there being sufficient evidence to convict. So long as there is admissible evidence on each element which the jury could believe, the evidence is sufficient to withstand a challenge under Jackson v. Virginia, supra. The evidence recited by the Second District in denying the Fifth Assignment of Error, quoted at length in the Report, meets that standard.
At the end of this section of the Objections, Jackson asserts: "Finally, petitioner contends that the magistrate judge in his finding [did] not respond to the claim jury not being given any instructions orally or written and the record supports such facts." (Objections, Doc. No. 14, PageID 2178.)
There is no ground for relief in the Petition which pleads that the jury was not instructed. In his Reply in the section devoted to the Fifth Ground for Relief, Jackson writes: "Petitioner contends that the failure of the trial court to give a [sic] oral jury instruction deprived him of due process and the equal protection of the law under the Fourteenth Amendment to the United States Constitution." (Reply, Doc. No. 9, PageID 2010.) Here again Jackson is trying to add a claim to the Petition by inserting it as an argument in the Reply, depriving the State of an opportunity to respond under the Habeas Rules.
This claim was certainly not fairly presented to the state courts. None of the eleven assignments of error pled in the Second District Court of Appeals mentions a failure to give instructions. The trial transcript reflects an extensive jury charge conference (Trial Tr., Doc. No. 6-10, PageID 1788-1803) which apparently continued off the record. Id. at PageID 1803, ll. 22-23. The transcript also reflects Judge Tucker's charge as a court exhibit. Id. at PageID 1815. At PageID 1816, defense counsel says he has no objection to the written instructions as agreed on in the conference. Judge Tucker's oral instructions are transcribed at PageID 1859-1884. There is no factual substance to the claim the jury was not instructed. Jackson's Fourth, Fifth, Sixth, and Tenth Grounds for Relief should be dismissed with prejudice.
In his Seventh Ground for Relief, Jackson asserts his right to a speedy trial was violated. The Warden asserted that this claim was both non-cognizable and not fairly presented to the state courts (Return of Writ, Doc. No. 7, PageID 1934-36). In his Reply, Jackson asserted a speedy trial right under Ohio Revised Code § 2945.71, Article I, § 10 of the Ohio Constitution, and the Sixth Amendment to the United States Constitution (Reply, Doc. No. 9, PageID 2011).
The Report construed the Seventh Ground as raising a federal Sixth Amendment claim and recommended that it be found to be procedurally defaulted because it was not fairly presented to the state courts (Report, Doc. No. 10, PageID 2042-44).
Jackson objects that he did fairly present this claim as a constitutional claim to the state courts in three places: (1) his pro se motion to dismiss of November 4, 2010; (2) his direct appeal on the speedy trial claim (by referencing the motion to dismiss); and (3) his memorandum in support of jurisdiction in the Ohio Supreme Court (again by referencing the motion to dismiss and also by explicitly referencing the Sixth Amendment)(Objections, Doc. No. 14, PageID 2181).
In his pro se Motion to Dismiss, Jackson wrote:
(Doc. No. 6-1, PageID 67.)
In his Brief on Appeal prepared by counsel, the argument is entirely in terms of Ohio Revised Code § 2945.71. While the November 4, 2010, motion is mentioned, the word "constitution" is not even used.
On his pro se appeal to the Supreme Court of Ohio, Jackson included as his Seventh Proposition of Law, "[w]as this Appellant's 6th Amendment right to a fast and speedy trial violated after the first trial ended in a mistrial?" (Doc. No. 6-2, PageID 382.)
These three reference points in the state court record do not constitute fair presentation of a Sixth Amendment speedy trial claim to the Ohio courts. In the Motion to Dismiss, Jackson merely uses the phrase "constitutional rights" without even specifying which part of the Constitution he is relying on. Those words do not gain in specificity when the Motion to Dismiss is later referenced on direct appeal. To preserve a federal constitutional claim for presentation in habeas corpus, the claim must be "fairly presented" to the state courts in a way which provides them with an opportunity to remedy the asserted constitutional violation, including presenting both the legal and factual basis of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6
Merely using talismanic constitutional phrases like "fair trial" or "due process of law" does not constitute raising a federal constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236 (6
But even if the Motion to Dismiss as filed with Judge Tucker were enough, there is no mention of constitutional rights at all in the body of the appellate brief. The claim must be fairly presented at every stage of the state appellate process. Wagner v. Smith, 581 F.3d 410, 418 (6
By the time the Memorandum in Support of Jurisdiction was filed, Jackson did explicitly mention the speedy trial right in the Sixth Amendment, but by then it was too late. The Ohio Supreme Court will not consider a claim which was not raised in the court of appeals.
Let us assume, however, that the claim was fairly presented to and decided by the Second District. If that be the case, Jackson must then show that the Second District's decision is contrary to or an objectively unreasonable application of United States Supreme Court precedent on the Sixth Amendment issue. This he also has not done.
Jackson is correct that the Speedy Trial Clause of the Sixth Amendment has been held to be applicable to the States through the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213 (1967).
Analysis under the Ohio Speedy Trial Act, Ohio Revised Code § 2945.71 et seq., is quite different from the Sixth Amendment analysis. The Ohio Supreme Court has fairly rigidly enforced the ninety-day limit in the statute. In contrast, the Supreme Court has developed a fourpart balancing test to use in determining whether a defendant's right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant has asserted his right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530-32 (1972).
Jackson evinces no knowledge of this separate federal constitutional standard. Indeed, his Objections do not cite Barker v. Wingo, supra, which is the controlling Supreme Court decision. Instead, he argues that the Second District's failure to enforce the Ohio Speedy Trial statute deprived him of due process (Objections, Doc. No.14, PageID 2183.)
"A mere error of state law is not a denial of due process." Rivera v. Illinois, 556 U.S. 148, 158 (2009), quoting Engle v. Isaac, 456 U.S. 107, 121, n. 21 (1982). "The Due Process Clause, our decisions instruct, safeguards not the meticulous observance of state procedural prescriptions, but `the fundamental elements of fairness in a criminal trial." Rivera, quoting Spencer v. Texas, 385 U.S. 554, 563-64 (1967). See also Levine v. Torvik, 986 F.2d 1506, 1515 (6
Moreover, the Second District found Judge Tucker did not violate state law in denying the Motion to Dismiss. The appellate court's decision on this point is set out above under Ground Two. It found that Judge Tucker did correctly start the count under Ohio Revised Code § 2945.71 on the date of arrest, that the trial began within the statutory ninety days from arrest, that the statute allows a reasonable time to recommence trial after a mistrial, and that the recommencement in this case was within a reasonable time. State v. Jackson, supra, This Court is bound by the Second District's interpretation of the Ohio statutes. "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Jackson failed to fairly present any Sixth Amendment claim to the Ohio courts and his Seventh Ground for Relief is therefore procedurally defaulted. Alternatively, nothing that Jackson has argued persuades this Court that the Second District's decision is contrary to or an objectively unreasonable application of Barker v. Wingo. The Seventh Ground for Relief should be dismissed with prejudice.
Jackson's Eighth Ground for Relief as pled states:
(Petition, Doc. No. 1, PageID 15.)
The Warden argued this claim was not cognizable in habeas corpus because it did not state a claim of violation of federal constitutional rights (Return of Writ, Doc. No. 7, PageID 1936-37). In his Reply, Jackson argues this claim solely in terms of Ohio R. Evid. 803(6) and 607; no mention is made of any federal constitutional right (Reply, Doc. No. 9, PageID 2013-14). The Report agreed that this claim was based solely on Ohio evidence law and should be dismissed as noncognizable (Report, Doc. No. 10, PageID 2025).
In his Objections, Jackson presents a number of arguments. None of these arguments were made before the Report was filed, i.e., in the Petition or Reply, and are thus waived. A habeas petitioner cannot introduce new claims in objections under Fed. R. Civ. P. 72. However, for the sake of completeness, the arguments are addressed here.
First he claims admission of hearsay in the form of telephone records violates his Confrontation Clause rights (Objections, Doc. No. 14, PageID 2184, citing Crawford v. Washington, 541 U.S. 36 (2004)). Crawford holds "[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." However, a business record is not a testimonial statement. Hearsay is admissible without violating the Confrontation Clause if it comes within a firmly rooted exception to the hearsay rule. Ohio v. Roberts, 448 U.S. 56, 66 (1980). And the business records exception is certainly firmly rooted.
Second, Jackson argues Paula Papke, the witness from Cincinnati Bell who introduced the cell phone records, was not properly subpoenaed or listed as a trial witness. In part, Jackson relies on Exhibit J which, as a post-trial exhibit, the Court can consider only on the "actual innocence" question. Pinholster, supra. No constitutional claim was made on this basis to the Ohio courts and in any event there is no federal constitutional requirement that every State's witness in a criminal trial be listed on the State's pretrial witness list.
Third, Jackson argues the cell phone records were not properly authenticated (Objections, Doc. No. 14, PageID 2184). Proper authentication is purely a question of state evidence law; the Second District's determination of this question, adverse to Jackson, is binding on this Court. State v. Jackson, supra, ¶¶ 68-76.
Fourth, Jackson argues cell phone records could only be introduced by an expert witness (Objections, Doc. No. 14, PageID 2184, citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)). Daubert is not a constitutional decision and does not purport to impose any constitutional obligation on the States. Instead, it is a decision under Fed. R. Evid. 702 which is binding only in federal courts under the Rules Enabling Act.
Fifth, Jackson relies on a memorandum submitted by an attorney in another case which supposedly disproves Ms. Papke's testimony (Objections, Doc. No. 14, PageID 2185). The citation is incomplete, no copy of the memorandum is furnished, and in any event attorneys are not expert witnesses on cell phone technology.
Ground Eight should be dismissed with prejudice.
Jackson's Ninth Ground for Relief as pled reads:
(Petition, Doc. No. 1, PageID 16.)
The Report notes that this pleading was completely conclusory and not spelled out in any detail until the Reply was filed (Report, Doc. No. 10, PageID 2026-27). The Report found that the Petition as supplemented by the Reply did state a federal claim for relief, but that the Second District's decision of the claim was neither contrary to nor an unreasonable application of the relevant Supreme Court precedent, Strickland v. Washington, 466 U.S. 668 (1984), and should therefore be dismissed (Report, Doc. No. 10, PageID 2048).
Jackson objects at great length (Doc. No. 14, PageID 2188-96). The Magistrate Judge considers his objections seriatim.
Jackson objects that his trial attorney, Michael Monta, provided ineffective assistance when he did not object to hearsay statements by Detective Pigman that Horn and Sims had identified Jackson in a photo array and that Papke was custodian of Cincinnati Bell business records. Applying the second prong of Strickland, the Second District found there was no prejudice because each of these witnesses testified to the same fact. State v. Jackson, supra, ¶ 102. The Objections offer no rebuttal.
Jackson objects that Monta did not object to Pigman's testimony about Sims' conversation with Jackson, asking for his gun back. The Second District found no deficient performance because Sims' statement to Jackson was not hearsay because not offered for the truth of the content, but merely to show the statement was made and as a predicate for Sims' later statement that Jackson did not give the gun back. State v. Jackson, supra, ¶ 103. This is plainly a correct application of the hearsay rule, Ohio R. Evid. 801, so an objection would properly have been overruled. It was therefore not ineffective assistance of trial counsel to fail to make the objection.
Jackson claims Monta should have objected to the lack of authentication of the Cincinnati Bell cell phone records (Objections, Doc. No. 14, PageID 2189-91). The Second District found no prejudice because it concluded under the Eighth Assignment of Error that admission of the records was not plain error. State v. Jackson, supra, ¶ 104. Jackson's objections are based on asserted "scientific evidence" which is not of record in this case and was not before the Second District (Objections, PageID 2190-91). Regarding Detective Pigman's testimony about what the cell phone records showed, the Second District found Monta did in fact object. State v. Jackson, supra, ¶ 106. Jackson offers no refutation.
Jackson claims Monta should have objected to Pigman's testimony about what Horn said in his third interview (Objections, Doc. No. 14, PageID 2192). The court of appeals concluded there was no ineffectiveness here because Jackson had suggested no basis on which an objection could have been sustained. State v. Jackson, supra, ¶ 107. Jackson argues about why this testimony was damaging to him, but still provides no basis on which an objection could have been sustained (Objections, Doc. No. 14, PageID 2193). He argues the Court should consider tendered exhibits A-N on this point, but they cannot be considered in determining whether to defer to the state court decision under 28 U.S.C. § 2254(d)(1). Pinholster, supra
Jackson claims Monta should have objected to various questions posed to Horn by the State during Horn's deposition. The Second District discussed the difficult strategic problems posed to both sides by Horn's credibility and concludes the decision not to object was a reasonable strategic choice. State v. Jackson, supra, ¶¶ 108-09. Jackson offers no refutation. Counsel's tactical decisions are particularly difficult to attack. O'Hara v. Wigginton, 24 F.3d 823, 828 (6
Having reconsidered the Report in light of the Objections and having further found that Jackson has not established his actual innocence so as to excuse any procedural default, the Magistrate Judge again respectfully recommends the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous.
