Babos v. Welch

Filing 52

Order Adopting Report and Recommendation. This Court overrules Babos' Objection 51 and adopts the R&R 48 . The Petition is dismissed. This Court certifies an appear from this decision could not be taken in good faith and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c). Judge Jack Zouhary on 5/7/2018. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Eric Babos,

Case No. 3:09 CV 908
Petitioner,

ORDER ADOPTING
REPORT AND RECOMMENDATION

-vsRobert Welsh, Warden,

JUDGE JACK ZOUHARY
Respondent.
INTRODUCTION

Petitioner Eric Babos, a state prisoner, filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 (Doc. 1). After this case was reactivated in January 2016, Babos filed an
Amended Petition (Doc. 33). The case was referred to Magistrate Judge James Knepp for a Report
and Recommendation (R&R). Respondent Robert Welsh moved to dismiss the Amended Petition
as untimely (Doc. 36).

After additional briefing (Docs. 38, 42, 45, 47), the Magistrate Judge

recommended this Court grant the Motion to Dismiss.

Babos timely objected (Doc. 51).

Accordingly, this Court has reviewed de novo those portions of the R&R challenged in the
Objection. 28 U.S.C. § 636(b)(1)(B) & (C); Hill v. Duriron Co., 656 F.2d 1208, 1213 (6th Cir.
1981).
BACKGROUND
As Babos does not meaningfully object to the procedural history and facts set forth in the
R&R (Doc. 48 at 1–14), this Court incorporates them by reference and briefly summarizes the
timeline of Babos’ state court appeals and federal habeas proceedings.

On August 5, 2005, an Ohio jury found Babos guilty of murdering John Riebe. Babos moved
for a new trial, but the motion was denied. He was then sentenced to eighteen years to life in prison.
He appealed. While his direct appeal was pending, Babos filed a second motion for a new trial.
After a hearing, that motion too was denied. He appealed the trial court’s denial, and the appeal
was consolidated with his direct appeal (id. at 3–5). In the consolidated appeal, Babos asserted a
single assignment of error: the trial court erred in denying his motion for a new trial. The appellate
court affirmed the trial court decision in May 2007, and the Ohio Supreme Court denied leave to
appeal in December 2007 (id. at 5–6).
While his consolidated appeals were pending with the Ohio Supreme Court, Babos filed an
application to reopen his direct appeal, arguing his appellate counsel was ineffective. In August
2007, the application was denied. Babos did not appeal to the Ohio Supreme Court (id. at 9–10).
Babos also filed a pro se motion for relief from judgment while his consolidated appeals were
pending. He raised several arguments, including that his constitutional rights were violated when
he was convicted against the weight of the evidence and that the State failed to disclose evidence.
The trial court denied the motion in June 2007. The appellate court affirmed. The Ohio Supreme
Court denied leave to appeal in June 2008 (id. at 6–9).
In April 2009, Babos timely filed a Petition for Writ of Habeas Corpus with this Court (Doc.
1). In February 2010, Babos filed a Motion to Hold Proceedings in Abeyance while he returned to
state court to exhaust his claims (Doc. 27). The Motion cited to Rhines v. Weber, 544 U.S. 269
(2005), and provided that Babos would “notify this court within thirty days of the exhaustion of his
state claims” (Doc. 27 at 6–7). The Motion was marginally granted in March 2010 (Doc. 28). In
December 2011, this Court entered an Order staying the case “pending the resolution of a related
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case pending in the state court of appeals” (Doc. 31). The Order instructed counsel to “advise the
Court, by filing a Notice, when there has been a ruling by the state appellate court, at which time
the Court will hold a status conference. In addition, counsel may reactivate this case at any time
by filing a Request to Reactivate” (id.).
After the case was stayed, Babos returned to state court and moved for leave to file a motion
for a new trial and for post-conviction relief. He argued the State failed to disclose evidence; the
jury heard faulty scientific testimony regarding gunshot residue; and new voice analysis expert
evidence indicates there is a voice in the background of a voicemail Riebe left his estranged wife
on the day of the murder, and it is not Babos. Both motions were denied. The appellate court
affirmed. In September 2013, the Ohio Supreme Court declined jurisdiction (Doc. 48 at 11–13).
Babos did not file a Notice with this Court as instructed, but instead waited for more than two years
before filing a Request to Reactivate his case and for leave to file an Amended Petition (Doc 32).
DISCUSSION
The Amended Petition asserts two grounds for relief: Brady violations and ineffective
assistance of trial counsel (Doc. 33). The R&R recommends this Court grant the Motion to Dismiss
the Amended Petition as time-barred, finding Babos failed to establish an actual innocence claim
excusing his noncompliance with AEDPA. In his Objections, Babos makes several conclusory
criticisms of the R&R as a whole. However, he does not offer any specific factual or legal basis
for many of these statements. “A general objection to the entirety of the magistrate’s report has the
same effects as would a failure to object. The district court’s attention is not focused on any specific
issues for review, thereby making the initial reference to the magistrate useless.” Howard v. Sec’y
of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). “[V]ague, general, or conclusory
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objections” do not trigger this Court’s de novo review. See Cole v. Yukins, 7 F. App’x 354, 356
(6th Cir. 2001). Thus, this Court will address only Babos’ specific objections.
Ground One: Time Bar
Babos concedes that his claims ultimately “rest upon an actual innocent finding” because he
has procedurally defaulted several aspects of his claim (Doc. 51 at 8; see also Doc. 38 at 1–2, 17).
Still, he objects to the finding that his claims are also time barred and that his delay in returning to
federal court was unreasonable. Babos now argues that his Petition “was timely filed and never
withdrawn” (Doc. 51 at 8). Without citing any legal authority, he asserts that even if his delay in
moving to reactivate the case was unreasonable in a “non-actual innocence matter,” “actual
innocence cases are different” and Jurado v. Burt, 337 F.3d 638 (6th Cir. 2003), does not apply (id.
at 7–8). He also disagrees that his failure to argue the reasonableness of the delay was a “tacit
admission” (id. at 8).
This Court agrees with the R&R that the decision to proceed “without arguing whether the
reactivation was requested in a timely-manner” (Doc. 38 at 1) was a tacit admission that the
Amended Petition was “untimely unless tolling due to actual innocence applies” (Doc. 48 at 17).
Babos waived the argument that his delay was reasonable by failing to present it to the Magistrate
Judge, and instead choosing to proceed on actual innocence grounds alone. Absent compelling
reasons, a party may not raise, at the district court stage, issues that were not presented to the
Magistrate Judge. Glidden Co. v. Kinsella, 386 F. App’x 535, 544 (6th Cir. 2010); Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 534–35 (6th Cir. 2001); Murr v. United States, 200 F.3d 895,
902 n.1 (6th Cir. 2000). The timeliness objections are overruled.
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The remainder of Babos’ objections relate to his actual innocence claim. If proven, an actual
innocence claim “serves as a gateway through which a petitioner may pass whether the impediment
is a procedural bar . . . or . . . expiration of the statute of limitations.” McQuiggen v. Perkins, 569
U.S. 383, 386 (2013). The gateway is narrow and only available in “rare” cases. Id. To succeed
on an actual innocence claim, a petitioner must show that “it is more likely than not that no
reasonable juror would have convicted him” in light of “new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—
that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). A court must
consider all the evidence, both old and new, and “without regard to whether it would necessarily be
admitted . . . at trial.” House v. Bell, 547 U.S. 518, 537–38 (2006) (internal quotation and citation
omitted). But a court must also give “due regard” to the “unreliability” of any of the evidence.
Schlup, 513 U.S. at 328.

“‘Actual innocence’ means factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). Babos recognizes that the R&R
identifies the correct legal standard, but disputes aspects of the analysis and findings (Doc. 51 at 8–
12).
Ground Two: Scope of New Evidence
Babos objects to the “conclusion that the new evidence establishes only that someone else
was present when the key phone calls were placed” (Doc. 51 at 10). He argues that the R&R fails
to consider the new evidence “in the context that Babos was at his brothers [sic] house” at the time
of Riebe’s murder (id.). Further, he contends that the R&R improperly “filled in the blanks” of the
State’s case by agreeing, in a footnote, that nothing in the new evidence establishes that the voice,
in the background of the voicemail, was the voice of a live person rather than a radio or television
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(id.). “[W]hat are the odds,” Babos argues, “that a radio would be playing with an AfricanAmerican voice stating he was ‘Eric’” (id.).
Babos muddles the evidence introduced at trial as well as the scope of the proffered voice
analysis evidence. At trial, evidence of six key phone calls was introduced linking Babos to the
scene of the murder. The first two calls were from Riebe to Lisa Richman, his estranged wife, at
approximately 2:58 and 2:59 PM. State v. Babos, 2007 WL 1452844, at *1 (Ohio App. Ct. 2007).
See also Doc. 13-1 at 319–21, 330. These calls resulted in two brief voicemails. In the first
message, Riebe asked Richman to pick up his check from A-1 Heating. Babos, 2007 WL 1452844,
at *1. See also Doc. 13-1 at 320. In the second message, Riebe asked her to hurry and stated he
had “someone” there waiting for his money. Babos, 2007 WL 1452844, at *1. See also Doc. 13-1
at 320.
The next two calls were from Riebe’s home phone to A-1 Heating’s service line around 3 PM.
Daniel Boyle, A-1 Heating’s manager, answered the calls. Babos, 2007 WL 1452844, at *1. See
also Doc. 13-1 at 248–53. Boyle testified that during the first call, he spoke with Riebe, and Riebe
asked him about money A-1 Heating owed him for a finished project. Babos, 2007 WL 1452844,
at *1. See also Doc. 13-1 at 248–50. During the second call, the caller identified himself as “Eric,
[Riebe]’s helper” and stated that he wanted his “fucking money.” Babos, 2007 WL 1452844, at *1.
See also Doc. 13-1 at 250–53. Boyle explained to him that only Riebe could pick up his check.
A few minutes later, another call was made from Riebe’s home phone to A-1 Heating’s service
line. Robert Pfeifer, A-1 Heating’s owner, answered the call. Babos, 2007 WL 1452844, at *1.
See also Doc. 13-1 at 272. Pfeifer testified that the caller identified himself as “Eric” and demanded

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money he claimed A-1 Heating owed him. Babos, 2007 WL 1452844, at *1. See also Doc. 13-1
at 274.
The sixth call was made at approximately 4 PM. This call was from Babos’ cellphone to A-1
Heating’s main line. Babos, 2007 WL 1452844, at *1. See also Doc. 13-1 at 275. Pfeifer answered
the call, and the caller again identified himself as “Eric.” Babos, 2007 WL 1452844, at *1. See
also Doc. 13-1 at 275. There is no dispute that this call was placed by Babos. Babos asked if he
could pick up Riebe’s check, claiming Riebe could not pick up the check because he was “in the
hospital.” Babos, 2007 WL 1452844, at *1. See also Doc. 13-1 at 276. Pfeifer testified that he did
not believe Babos was telling the truth, Babos, 2007 WL 1452844, at *1, and that there was “[n]o
doubt in [his] mind” that the voice was the same as the earlier call he answered. Doc. 13-1 at 283.
In support of his actual innocence claim, Babos submits affidavits from two voice analysis
experts, Stephen Scharren (Doc. 36-1 at 62–64) and Robert Leobard (Doc. 36-1 at 65–70). The
experts reviewed an enhanced version of one of the voicemails Riebe left Richman. In the enhanced
version of the voicemail, a voice can be identified in the background. After comparing the enhanced
voicemail with an audio recording of Babos, both experts conclude that the background voice is not
Babos, but an African-American man.
The voice analysis experts examined only the enhanced voicemail, and their opinions relate
only to the voice in the background of that voicemail. The experts did not, and could not, provide
an opinion as to the identity of the caller(s) to A-1 Heating. Babos suggests that like the later calls
to A-1 Heating, the background voice also stated that he was Eric (Doc. 51 at 10). Not so. The
only decipherable words in the background of the voicemail are “if he don’t come do that” (Doc
36-1 at 68).
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The only person who could testify about the content of the calls to A-1 Heating is the person
who answered each call -- either Boyle or Pfeifer. Although not mentioned in the Objections,
Patrick Wainscott, a defense investigator, did aver that Boyle told him the caller he spoke with
“sounded like a black man” (Doc. 38-1 at 1). But Boyle is not a voice analysis expert. Wainscott’s
affidavit was also executed over ten years after Riebe’s murder and does not say whether Boyle
was certain, or even confident, about the race of the caller. And Babos has not submitted a sworn
statement from Boyle. Further, as Wainscott’s affidavit acknowledges, Boyle and Pfeifer were
never on the same call, and Boyle did not “hear the caller who identified himself as Eric to Mr.
Pfeifer” (id.). Thus, the new evidence does not undermine Pfeifer’s testimony that the calls he
answered were from the same caller, or otherwise call into question Pfeiffer’s credibility. It is
Pfeifer’s testimony that links the earlier calls from Riebe’s home with the later call from Babos’
cell (see Doc. 48 at 24 n.7).
In sum, as the R&R recognizes, the new evidence “lend[s] a modicum of support to the
defense theory at trial that someone else, specifically an African-American drug dealer, was the real
perpetrator in this case” (id. at 24). But this Court agrees that “[e]ven assuming the [voice analysis]
evidence is completely reliable, it does not undermine the other phone call evidence and testimony
submitted at trial” (id. at 22). The new evidence does not show that Babos did not make the later
calls from Riebe’s home to A-1 Heating, or that he was not also present at the time of the voicemail.
Babos contends this conclusion fails to consider the new evidence in the context that Babos
was at his brother’s house (Doc. 51 at 10). But Babos has not submitted any new evidence
bolstering his alibi that he was at his brother’s house at the time of the calls and Riebe’s murder.
At trial, Babos relied primarily on testimony from his brother and his father to establish his alibi.
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His brother admitted that he did not know whether Babos left the house and then came back
sometime before he picked him up (e.g., Doc. 13-2 at 381, 383–84, 394–95). His brother was not
there. Likewise, Babos’ father testified that once he dropped Babos off at his brother’s house,
Babos could have left, and he would not have known where he went, for how long, or how he got
there (id. at 452–55). His father was not there. This Court sees no reason why it must accept Babos’
alibi as true -- the jury clearly did not find it to be credible. The second objection is overruled.
Ground 3: Expert Voice Analysis and Gunshot Residue Testimony
Babos also objects to the “conclusions that the gunshot residue and voice analysis are not
exculpatory” (Doc. 51 at 11). He argues that this “scientific evidence” “debunks” the State’s theory
that Babos made the calls to A-1 Heating and that Babos had gunshot residue on his sleeve (id.).
As discussed above, the voice analysis evidence relates only to the voice in the background
of the voicemail, and therefore does not “debunk” the State’s theory that Babos made the later
phone calls to A-1 Heating.
Turning to the gunshot residue evidence, Babos continues to conflate the testimony of the two
State experts and thereby overstates the scope, and weight, of John Nixon’s affidavit (see Doc. 48
at 25–28). As explained in the R&R, the two State experts did not examine the same sample from
Babos. Daniel Davison of the Ohio Bureau of Criminal Identification and Investigation tested
samples from Babos’ sleeves, and Elana Foster of RJ Lee Group tested a sample from his hand (id.
at 27; see also Doc. 13-1 at 567, 575–77; Doc. 13-2 at 108–09). Davison testified that the left
sleeve sample tested positive. Babos, 2007 WL 1452844, at *2. See also Doc. 13-1 at 578, 581–
82. Foster testified that the hand sample tested inconclusive (Doc. 13-2 at 110).

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Contrary to Babos’ suggestion, Nixon’s affidavit (Doc. 36-1 at 41–51) does not establish that
“[t]here was no gunshot residue on the sleeves of Babos’ flannel shirt,” or that “there was no GSR
found on anything related to Babos” (Doc. 51 at 4–5). As for Davison’s testimony, the only
statement from Davison that Nixon criticizes is his statement that SEM analysis is qualitative, not
quantitative (Doc. 36-1 at 47–48; see also Doc. 13-1 at 578). He does not, and arguably could not,
contest Davison’s ultimate finding that the sample from Babos’ left sleeve contained gunshot
residue. Nixon did not have access to the sleeve sample or testing data. And although Nixon
criticizes some of RJ Lee Group’s testing procedures, such as the fact that the company categorizes
results as either positive or inconclusive rather than positive or negative, the experts ultimately
reach the same conclusion -- there was no gunshot residue in the hand sample (Doc. 36-1 at 46–
51). Although an “inconclusive” result might be misleading without further explanation, Foster
testified several times that the inconclusive result meant that no gunshot residue was found (Doc.
13-2 at 110–11, 115–16, 119).
Further, this Court agrees with the R&R, and the Ohio appellate court, that much of the other
information in Nixon’s affidavit is cumulative of information already introduced at trial, adding
little to Babos’ case (Doc. 48 at 26–27). The jury was not in the dark about how easily gunshot
residue can be transferred. Both State experts attested to this fact on direct and cross-examination
(Doc. 13-1 at 568, 575, 585–89; Doc. 13-2 at 106–08, 113, 119), and both parties attempted to use
this to bolster their cases. And as the affidavit recognizes, the State experts also testified that the
components of gunshot residue can be found in several everyday products (Doc. 13-1 at 572–74;
Doc. 13-2 at 104–05, 111). In sum, Nixon’s affidavit does not exculpate Babos.

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Ground Four: Viewing Evidence in Isolation
Finally, Babos argues the Magistrate Judge erred by “taking each piece of new evidence in
isolation, without viewing [it] in context of the established or unchallenged evidence in the record”
(Doc. 51 at 10). Although the R&R contains a two-page section titled “Cumulative Effect of New
Evidence,” Babos contends that “the evidence is not so analyzed” (id. at 11).
After carefully reviewing the R&R, the parties’ briefs, and the state court record, this Court
finds the R&R is well-reasoned and thorough, and appropriately applies the Schlup standard.
Although Schlup requires new evidence to be considered in light of old evidence, it is also necessary
to analyze each piece of new evidence independently to determine whether it is truly new and
reliable. See House, 547 U.S. at 537–38. The Sixth Circuit has applied a similar approach in several
cases. See, e.g., Freeman v. Trombley, 483 F. App’x 51, 57–65 (6th Cir. 2012); Turner v.
Romanowski, 409 F. App’x 922, 926–30 (6th Cir. 2011). This approach was especially appropriate
here due to Babos’ inaccurate description of the evidence, both old and new.
The R&R correctly determines that the new evidence, viewed cumulatively and with other
evidence in the record, “offers nothing definitively exculpatory, but rather more circumstantial
evidence in support of [Babos’] trial theory that someone else committed the crime” (Doc. 48 at
33). Although Babos only raises specific objections to the discussion of the voice analysis and
gunshot residue evidence, this Court has also reviewed the analysis of the other new evidence (id.
at 29–33), and finds it to be well-reasoned. The new evidence simply “does not bear the weight
Petitioner places on it” (id. at 33) -- some is cumulative, some is unreliable, and even with this
evidence, holes remain in Babos’ story. Further, this Court agrees that the new evidence does
nothing to bolster Babos’ alibi that he was at his brother’s house at the time of Riebe’s murder.
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Although the new evidence may make Babos’ story more likely, “it is not enough that a
petitioner shows that a reasonable doubt exists as to his guilt in light of new evidence.” Aldridge
v. Phillips, 714 F. App’x 562, 563 (6th Cir. 2017). This Court agrees with the R&R that the
evidence in this case does not fit within the “extremely narrow” actual-innocence gateway. See
Gibbs v. United States, 655 F.3d 473, 477 (6th Cir. 2011). Finally, this Court agrees that Babos has
not demonstrated an evidentiary hearing is necessary or “might realistically enhance his insufficient
showing of actual innocence” (Doc. 48 at 35).
CONCLUSION
For the foregoing reasons, this Court overrules Babos’ Objection (Doc. 51) and adopts the
R&R (Doc. 48). The Petition is dismissed. Further, this Court certifies an appeal from this decision
could not be taken in good faith and there is no basis upon which to issue a certificate of
appealability. 28 U.S.C. § 2253(c).
IT IS SO ORDERED
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
May 7, 2018

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