Glover v. Morgan ona Kelly

Filing 23

Memorandum Opinion and Order Adopting Report and Recommendation re 20 dismissing 1 Petitioner's Petition for Writ of Habeas Corpus (2254). Judge Christopher A. Boyko on 3/4/2013. (R,D)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

LAURESE GLOVER,
Petitioner,
Vs.
DONALD MORGAN, Warden,
Respondent.

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CASE NO. 1:12CV267
JUDGE CHRISTOPHER A. BOYKO

MEMORANDUM OF OPINION

CHRISTOPHER A. BOYKO, J:
This matter comes before the Court on Petitioner Laurese Glover’s Petition under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF #1).
Respondent filed a Motion to Dismiss (ECF#7). For the following reasons, the Court
accepts and adopts the Magistrate Judge’s Report and Recommendation, grants
Respondent’s Motion to Dismiss and dismisses Petitioner’s Petition.
FACTS
The following is a factual synopsis of Petitioner’s claims. The Magistrate Judge’s
Report and Recommendation, adopted and incorporated, provides a more complete and

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detailed discussion of the facts.
On June 13, 1995, a Cuyahoga County Grand Jury issued an Indictment charging
Petitioner and two co-defendants, Derrick Wheat and Eugene Johnson, with one count of
Aggravated Murder each, including a Firearm Specification. All three defendants entered
a plea of not guilty to the Indictment and a joint trial commenced on January 8, 1996. At
the close of the State’s case, all three defendants moved for acquittal pursuant to Ohio
Crim.R. 29. The trial court found insufficient evidence to establish prior calculation and
design, and amended the Indictment to the lesser charge of Murder with respect to each
defendant. On January 18, 1996, the jury found Petitioner guilty of Murder, without the
Firearm Specification. On January 22, 1996, the court sentenced Petitioner to a term of
fifteen years to life imprisonment.
Petitioner filed a timely Notice of Appeal to the Eighth District Court of Appeals. On
January 16, 1997, the Court of Appeals affirmed the judgment of the trial court. Meanwhile,
co-defendant Johnson appealed his conviction and sentence. On January 27, 1997, the
Court of Appeals denied Johnson’s Appeal and affirmed the judgment of the trial court.
Johnson did not file a timely appeal to the Ohio Supreme Court, and on May 14,
1997, his Motion for Leave to File a Delayed Appeal was denied. On January 23, 2004,
Johnson filed a Motion for Leave to File a Motion for a New Trial, and a Motion for a New
trial in the Cuyahoga County Court of Common Pleas. On January 29, 2004, the court
granted leave to file the Motion for a New Trial. On February 25, 2004, the court struck the
Motion for a New Trial as Johnson failed to file his new evidence within seven days of the
order. On March 16, 2004, Johnson filed a Motion for an Evidentiary Hearing based on
newly discovered evidence. Johnson had an affidavit from the identifying witness recanting
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her testimony. On July 27, 2004, Johnson filed his Motion for a New Trial. On September
17, 2004, the court granted Johnson a new trial. On August 4, 2005, the Court of Appeals
issued a journal entry and opinion concluding the judgment of the trial court was not
reasonable and the trial court abused its discretion by granting a new trial, thereby
reversing the trial court’s judgment. Johnson timely appealed to the Ohio Supreme Court
on September 19, 2005.

On January 25, 2006, the Ohio Supreme Court declined

jurisdiction and dismissed the case. Johnson’s Motion for Reconsideration was denied on
March 29, 2006.
On November 22, 2004, Petitioner and co-defendant Wheat filed a Joint Motion for
Leave to File Motion for a New Trial. On April 19, 2005, Petitioner’s Motion was denied due
to res judicata. On May 6, 2005, the trial court granted Petitioner leave to file a Motion
for a New Trial. Petitioner filed his Motion for a New Trial on May 12, 2005. On July 28,
2005, the court denied the Motion.
On November 21, 2006, co-defendant Johnson filed a federal habeas corpus
petition. The Magistrate Judge found Johnson’s Petition was time-barred, but that he was
entitled to equitable tolling based on newly discovered evidence: the identification witness’
alleged recantation, and new gunshot testing procedures, thus creating a credible claim of
actual innocence. An evidentiary hearing was held on October 22, 2008. On August 3,
2009, the Magistrate Judge issued a Report and Recommendation recommending
that Johnson’s Petition for a writ of habeas corpus be denied. The Report and
Recommendation was adopted on September 21, 2009.
On January 12, 2009, Petitioner filed a second Motion for Leave to File a Motion for
a New Trial. The trial court granted the Motion for Leave on February 26, 2009 and
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Petitioner filed his Motion for New Trial on March 12, 2009. On June 23, 2009, the trial
court denied Petitioner’s Motion. Petitioner appealed the denial of his Motion for a New
Trial to the Eighth District Court of Appeals. On September 2, 2010, the Eighth District
Court of Appeals affirmed the judgment of the trial court. Petitioner filed a Notice of Appeal
to the Ohio Supreme Court. On February 2, 2011, the Ohio Supreme Court declined
jurisdiction.
Petitioner filed the instant Petition on February 2, 2012, asserting the following
grounds for relief:
GROUND ONE: Laurese Glover is actually innocent of Clifton Hudson’s murder.
His conviction violates the U.S. Constitution.
GROUND TWO: The new evidence presented is so compelling that it would be a
violation of fundamental fairness embodied in the Due Process Clause of the U.S.
Constitution not to afford Laurese Glover a new trial where new evidence would be
considered.
GROUND THREE: Laurese Glover’s conviction was based on a pretrial
identification procedure that was so “impermissibly suggestive as to give rise to the
likelihood of irreparable misidentification” in violation of Glover’s Due Process
rights in violation of the U.S. Constitution. The pretrial identification procedure
rendered the in court identification unusable-the subsequent use of the in court
identification was in violation of Glover’s due process rights in violation of the U.S.
Constitution.
GROUND FOUR: Laurese Glover’s Due Process Rights embodied in the U.S.
Constitution were violated when the State failed to disclose to Petitioner’s trial
counsel that (1) they informed Ms. Harris prior to her viewing of the three photos
that they had the suspects in custody and asked her which one was the shooter, (2)
the police officer administering the line-up pointed at Eugene Johnson, and (3)
police “confirmed” to Ms. Harris that the identification was “correct” by informing her
that “the other two” had “gunpowder” on them.
GROUND FIVE: Laurese Glover’s conviction was based on a pretrial identification
procedure that was so “impermissibly suggestive as to give rise to the likelihood of
irreparable misidentification” in violation of Glover’s due process rights. The
evidence not disclosed, listed in Petitioner’s Fourth Ground for Relief, rendered the
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pretrial identification so impermissibly suggestive that it is clear that a
misidentification took place in violation of Glover’s Due Process Rights in the U.S.
Constitution, U.S. Const. Amend. V and XIV.
GROUND SIX: Laurese Glover’s Due Process rights under Brady v. Maryland were
violated when the three pieces of evidence listed out in Petitioner’s Third Ground for
Relief were not disclosed to trial counsel as they were impeachment material of the
State’s sole eyewitness.
GROUND SEVEN: The Eighth District Court of Appeals overturned the trial court’s
granting of a new trial for Eugene Johnson, which was granted, in part, based on
Tamika Harris’s testimony regarding the suggestiveness of the line-up procedure.
The Eighth District Court of Appeals, in its reversal, failed to consider Tamika
Harris’s post-conviction testimony, and simply relied on the original opinion in the
direct appeal of Eugene Johnson. State v. Johnson, 1997 Ohio App. LEXIS 100
(Ohio Ct. App., Cuyahoga County Jan. 16, 1997). The trial court denied Petitioner’s
Motion for New Trial based on the Eighth District Court of Appeals reversal of the
trial court in State v. Johnson, 2005 Ohio 3724 (Ohio Ct. App., Cuyahoga County
July 21, 2005). Petitioner was denied Due Process when the Eighth District Court
of Appeals failed to consider the three pieces of evidence, not disclosed to
Petitioner’s trial counsel, listed in Petitioner’s Third Ground for Relief and wholly
failed to reevaluate the line-up procedures in light of this evidence.
GROUND EIGHT: Laurese Glover’s trial counsel rendered unconstitutionally
deficient representation during pre-trial and trial phases of Petitioner’s trial when
they (1) failed to request a suppression hearing to suppress an unconstitutional
line-up procedure, and (2) failed to object to a private meeting with a juror and failed
to conduct voir dire of the juror when that juror raised safety concerns when either
Glover, Johnson, or Wheat (the Juror couldn’t tell which one it was) said “hi” to the
juror in the cafeteria at lunchtime.
GROUND NINE: The State committed prosecutorial misconduct during voir dire, and
opening and closing arguments, when the State discussed “gang activity” of the
defendants but failed to present any evidence, and engaged in unconstitutional
burden shifting when the State commented on the Petitioner’s failure to call an
expert on gunshot residue.
GROUND TEN: Glover was deprived of a fair trial and due process rights when a
juror who feared for their personal safety when an unidentifiable defendant said hi
in the cafeteria, was permitted to deliberate on Petitioner’s jury.
GROUND ELEVEN: The cumulative constitutional error in Grounds for Relief 1-10
deprived Glover of a fair trial in violation of due process.

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On February 6, 2012, this Court referred Petitioner’s Petition to the Magistrate
Judge for a Report and Recommendation. On September 9, 2012, the Petition was
referred to a different magistrate judge for a Report and Recommendation. The Magistrate
Judge issued his Report and Recommendation on January 25, 2013. On February 22,
2013, Petitioner filed Objections to the Magistrate Judge’s Report and Recommendation.
STANDARD OF REVIEW
When a federal habeas claim has been adjudicated by the state courts, 28 U.S.C.
§ 2254(d)(1) provides the writ shall not issue unless the state decision “was contrary to, or
involved an unreasonable application of, clearly established federal law as determined by
the Supreme Court of the United States.” Further, a federal court may grant habeas relief
if the state court arrives at a decision opposite to that reached by the Supreme Court of the
United States on a question of law, or if the state court decides a case differently than did
the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-406 (2000). The appropriate measure of whether or not a state court
decision unreasonably applied clearly established federal law is whether that state
adjudication was “objectively unreasonable” and not merely erroneous or incorrect.
Williams, 529 U.S. at 409-411.
Pursuant to 28 U.S.C. § 2254(e)(1), findings of fact made by the state court are
presumed correct, rebuttable only by clear and convincing evidence to the contrary.
McAdoo v. Elo, 365 F. 3d 487, 493-494 (6th Cir. 2004). Finally, Rule 8(b)(4) of the Rules
Governing §2254 states:
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the
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court may accept, reject, or modify in whole or in part any
findings or recommendations made by the magistrate.
ANALYSIS
Petitioner does not dispute that the instant Petition is time-barred, as asserted by
Respondent. Rather, Petitioner argues he is entitled to an actual innocence finding
because another district court found co-defendant Johnson met the actual innocence
standard set forth in the Antiterrorism and Effective Death Penalty Act (AEDPA).
Petitioner argues that he has a credible claim of actual innocence based on new
evidence. Respondent asserts that Petitioner has not presented a valid claim of actual
innocence. Under the doctrine of equitable tolling, this Court has the authority to
excuse late filed habeas claims in limited circumstances. McSwain v. Davis, 287 Fed.
Appx. 450, 456 (6th Cir. 2008) (quoting Solomon v. United States, 467 F. 3d 928, 933
(6th Cir. 2006) (The Sixth Circuit “repeatedly caution[s] that equitable tolling should be
granted ‘sparingly’”). While the initial burden of raising the statute of limitations defense
is on the state, the burden of proof is on the habeas petitioner to persuade the court he
or she is entitled to equitable tolling. McSwain, 287 Fed. Appx. at 456. One form of
equitable tolling recognized by the Sixth Circuit is the claim of “actual innocence.”
Souter v. Jones, 395 F.3d 577, 588-89 (6th Cir. 2005).
Petitioner contends that he has met the actual innocence exception to the statute
of limitations. The two primary pieces of evidence that Petitioner claims demonstrates
his actual innocence are the recantation of the only identification witness, and new
science and scientific studies in the area of gunshot residue. Respondent asserts that
Petitioner’s actual innocence claims are meritless, thus all grounds for relief are
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procedurally defaulted.
To demonstrate actual innocence, the petitioner must present new evidence of
innocence that is so strong that a court cannot have confidence in the outcome of the
trial. Schlup v. Delo, 513 U.S. 861, 861 (1995). The petitioner must show that it is more
likely than not that no reasonable juror, in light of the new evidence, would have voted
to find him guilty beyond a reasonable doubt. Schlup, 513 U.S. 298, 327 (1995). The
Magistrate Judge determined that while the parties in this case are certainly linked,
each played different roles, with different pieces of evidence linking them to the crime.
The Magistrate Judge concluded that all the testimony and evidence relating to
Petitioner remains the same.
On January 12, 1996, the now-recanting witness testified at the murder trial,
after which Petitioner, Johnson, and co-defendant Wheat were convicted. In 2000, the
witness expressed misgivings about her trial testimony to her mother after reading a
magazine article about inmates that were innocent of the crimes for which they were
convicted. The witness then emailed the website and communicated that she may have
been incorrect in her statement and testimony. In 2003, the witness met with an
advocate for co-defendant Johnson and provided an affidavit regarding her trial
testimony and identification of Johnson.
Recanting witnesses are viewed with extreme suspicion. McCray v. Vasbinder,
499 F.3d 568, 574 (6th Cir. 2007). Recantation “upsets society’s interest in finality of
convictions, is very often unreliable and given for suspect motives, and most often
serves merely to impeach cumulative evidence rather than to undermine confidence in
the accuracy of the conviction.” Carter v. Mitchell, 443 F.3d 517, 539 (6th Cir. 2006)
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(citing Dobbert v. Wainwright, 468 U.S. 1231, 1233-34 (1984)).
The recanting witness’ doubts are related to her identification of one of the codefendants. Her testimony related to this Petitioner’s role has not changed. The
witness identified the vehicle, and Petitioner was the driver of that vehicle. The witness
heard the gunshots and saw the vehicle slow down after the victim was shot.
Petitioner’s vehicle was later tested and contained lead particles consistent with gunshot
residue. The Court agrees with the Magistrate Judge that the witness’ testimony
regarding her identification of Johnson is not directly related to Petitioner’s claim of
actual innocence. Petitioner was never identified by this witness; his conviction was
based on his presence in the car at the time of the shooting. The Court finds that
Petitioner has not shown that the witness’ recantation of the identification of Johnson
meets the standard of actual innocence for this Petitioner.
Petitioner also contends that the gunshot residue test performed on him and his
co-defendants was unreliable. Petitioner’s basis for this argument is that a more
accurate test has been developed since his trial. The Court agrees with the Magistrate
Judge’s conclusion that while the original testing may be outdated, it was not unreliable.
At trial, a forensic scientist testified as an expert witness concerning the gunshot residue
(“GSR”). The expert obtained samples collected from the hands and clothes of
Petitioner and his co-defendants. The test traces particles consistent with GSR for
someone who fired a gun, or was nearby a gun being discharged in close proximity.
Petitioner was the driver of the vehicle and the vehicle tested positive for GSR. The
expert testified there was no indication the samples taken were contaminated.
Respondent asserts that Petitioner has not presented a valid claim of actual
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innocence with respect to the gunshot residue test. In his Objections to the Magistrate
Judge’s Report and Recommendation, Petitioner contends that all three defendants
were exposed to GSR while in the police environment prior to their clothes and hands
being swabbed. Testing showed that the vehicle contained lead residue consistent with
particles of GSR. Petitioner was the driver of the vehicle. Petitioner argues that the
presence of lead particles is not always an indication of GSR. The Court agrees with
the Magistrate Judge’s conclusion that Petitioner only shows that new gunshot residue
testing has improved, or is more accurate.
The test used at the time of the incident was an accepted scientific test, and
simply because there is a newer, improved test, that does not mean it was previously
unreliable. The Magistrate Judge correctly points out that actual innocence must be
based on “new reliable evidence – whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence.” Schlup v. Delo, 513
U.S. 298, 324 (1995). Petitioner has failed to show that he is actually innocent based
on the scientific evidence of the gunshot residue.
For the foregoing reasons, the Court finds the Magistrate Judge’s Report and
Recommendation accurately and thoroughly addresses Petitioner’s arguments. The
Court finds that Petitioner is not “actually innocent” according to the standard set forth in
Schlup and Souter. Therefore, the Court ADOPTS and ACCEPTS the Magistrate
Judge’s well-reasoned Report and Recommendation, grants Respondent’s Motion to
Dismiss, and dismisses Petitioner’s Petition Under 28 U.S.C. §2254 for Writ of Habeas
Corpus by a Person in State Custody as time-barred. Petitioner’s remaining motions
are moot and denied
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The Court finds an appeal from this decision could not be taken in good faith. 28
U.S.C. § 1915 (a)(3). Since Petitioner has not made a substantial showing of a denial
of a constitutional right directly related to his conviction or custody, the Court declines to
issue a certificate of appealability. 28 U.S.C. § 2253 (c)(2); Fed. R. App. P. 22(b).

IT IS SO ORDERED.

Date:3/4/2013

s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge

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