Alvarado v. Ohio State Penitentiary

Filing 80

Order. Petitioner's Motion for Leave to File an Amended Petition or in the Alternative to File an Amended Traverse (Doc. No. 73 ) is granted in part and denied in part as set forth in this Order. Petitioner's motion to expand the record (Doc. No. 72 ) is granted in part and denied in part. Given the personal identifiers in deposition exhibits 4A, 43, 44, 45, 66, and 73, the Court SEALS Doc. No. 72-7. Petitioner shall file promptly the deposition exhibits with the persona l identifiers redacted. Petitioner shall file his amended Petition by March 4, 2020. Respondent shall file a Return to the Amended Petition no later than 60 days from the filing of the amended Petition; i.e., May 4, 2020. Petitioner shall file a Traverse no later than 30 days from the filing of the Return; i.e., June 3, 2020. Respondent may file a sur-reply no later than 15 days from the filing of the Traverse; i.e., June 18, 2020. Given the passage of time in this case, the parties should not expect any extensions of these deadlines. Signed by Magistrate Judge Jonathan D. Greenberg on 2/3/2020. (S,S)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRCT OF OHIO
EASTERN DIVISION
HECTOR ALVARADO,

)
)
)
)
)
)
)
)
)
)
)

Petitioner,
vs.
OHIO STATE PENITENTIARY,
Respondent.

CASE NO. 3:16-CV-02563

JUDGE PATRICIA A. GAUGHAN

MAGISTRATE JUDGE
JONATHAN D. GREENBERG
ORDER

This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the
Petition of Hector Alvarado (“Alvarado” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28
U.S.C. § 2254. Currently pending are Alvarado’s (1) Motion for Leave to File an Amended Petition or in
the Alternative to File an Amended Traverse (Doc. No. 73); and (2) Motion to Expand the Record (Doc.
No. 72). Respondent filed briefs in opposition to both motions, to which Alvarado replied.
For the following reasons, Alvarado’s Motion for Leave to File an Amended Petition or in the
Alternative to File an Amended Traverse (Doc. No. 73) is GRANTED IN PART and DENIED IN PART.
Alvarado’s Motion to Expand the Record (Doc. No. 72) is also GRANTED IN PART and DENIED IN
PART.
I. Summary of Facts
Alvarado’s habeas petition challenges the constitutionality of his conviction and sentence for
murder in the case of State v. Alvarado, Lucas County Court of Common Pleas Case No. G-4801-CR201301381. The state appellate court summarized the facts underlying Alvarado’s conviction as follows:
{¶ 2} In the early morning hours of New Year’s Day, 2013, a fight broke out at
the South Beach Bar on Alexis Road in Toledo, Lucas County, Ohio. Christine
Henderson suffered a fatal wound to her neck and her fiancée, Stacy Bowen,
1

suffered a non-fatal laceration to his upper arm. Appellant, Hector Alvarado, was
indicted on one count of murder in violation of R.C. 2903.02(B) and R.C.
2929.02, and one count of felonious assault in violation of R.C. 2903.11(A)(2).
The case proceeded to trial by jury. The following is a summary of the evidence
presented.
{¶ 3} Megan Gibson, an employee at the South Beach Bar and Grill, testified that
she was working the door in the early morning hours of New Year’s Day 2013
when “the bar broke out into a riot.” She did not witness the assault on Bowen or
Henderson. She did, however, clean-up a large amount of blood in the area
Henderson was standing before she walked outside and died in the bar’s parking
lot.
{¶ 4} A bar patron, Charles Wells, testified that he and three of his friends were
on the bar’s back patio “smoking weed and drinking beer” when the violent, yet
short-lived, fight began. He entered the bar, but never engaged in the fighting.
Instead, he stood back and observed the commotion, keeping his eye on appellant
because he was “the biggest guy in the bar.”
{¶ 5} Wells explained that during the fight appellant had “an object” in his hand.
He observed appellant swing the object and noted that “everybody he swung on
hurried up and got away from him.” Wells admitted that his view was obstructed
at times because “bodies was [sic] moving, chairs was [sic] flying, people was
[sic] swinging.”
{¶ 6} At one point, Wells observed appellant near Henderson. He explained, “I
seen him swing on her and she walk [sic] away, she grabbed her neck and walk
[sic] away. But I didn’t know what had happened right then and there.” Wells
explained that appellant had the object in his hand when he “swung on”
Henderson.
{¶ 7} Before the fight completely subsided, Wells and his friends left the bar
through the front door. Wells explained what he observed when he stepped
outside:
A:

All I seen was cars, but I immediately spinned around because it was a
crowd of people coming out, there was some people coming out, so
then when I seen who was coming out, I turned around and started
walking backwards and tripped off the curve.

Q:

Did you see [appellant]?

A:

He came out right behind me.

Q:

What did you see him with?

A:

I seen him with a Mexican girl in one hand. I seen him with a knife in
another hand.
2

Q:

Sure it was a knife?

A:

Clearly I seen the knife. I wouldn’t turn my back to him because I just
seen him get into it with all these black people and I didn't want him to
stab me too. I had my brother and them in the car. They made it in the
car. I was walking backwards and my brother and them kept saying,
Chuck, get in the car; Chuck, get in the car. I said fuck that. I’m
watching him. He got a knife.

Q:

How long did you watch him?

A:

All the way until I got in the car.

{¶ 8} Wells explained that he and his friends came back to the bar later that
morning so they could give another friend, a bouncer, a ride home. It was then
that he heard Henderson had died and that Bowen had killed her with a bottle. He
explained, “I said, hell, no, [appellant] did it.”
{¶ 9} Wells did not talk to the police in the early morning hours of New Year’s
Day 2013. He did, however, receive a phone call from Detective Goodlet on
January 8, 2013. He told the detective what he saw and agreed to come down to
the station and give a recorded statement. He explained,
A:

* * * And the only reason why I really, really went down there,
because like I say, I know the family and they was saying that the
girlfriend’s boyfriend was the one that stabbed her with a bottle and I
said, hell no, huh-uh, no. And then I called my friend Dave which [sic]
was the bouncer there that night and he asked me was I going down
there and I said I'm going to go down there and talk to him.

Q:

Did you ever voluntarily talk to the police before?

A:

Never in my life. Where I come from that’s a snitch.

{¶ 10} Wells was able to identify himself on surveillance video and various still
photos taken from the video. On cross examination, Wells testified that he and
Bowen were not “friends” but that he knew Bowen from the neighborhood and
had played basketball with him. He also admitted that he knew Henderson
because she drove a recognizable vehicle, a “hot pink truck * * * with cartoon
characters on it.”
{¶ 11} Dr. Diane Scala–Barnet, a deputy coroner for Lucas County, performed an
autopsy on Henderson. She classified Henderson’s death as a homicide and
determined that a stab wound to the left side of her neck caused a complete
transection of the carotid artery. In her opinion, the fatal wound was caused by an
instrument with one sharp edge and one dull edge. She ruled out any suggestion
that a broken bottle could have caused the wound.
3

{¶ 12} Dr. Scala–Barnet described the wound track as “lateral to medial and
downward.” In her opinion, Henderson likely received the wound from a frontal
attack but she could not rule out the possibility that the wound was received from
an assailant standing behind her. When asked whether it was possible for
Henderson to have received the wound while bent over, Dr. Scala–Barnet stated,
“[t]hat would be harder to get the downward trajectory * * * It’s not impossible,
but it’s harder to get in there.” Dr. Scala–Barnet agreed that if Henderson did
receive the wound while bent over, “the assailant would almost certainly have to
be lower than her.” However, she added that it all depended on where the
assailant was positioned relative to the Henderson’s body.
{¶ 13} Dr. Scala–Barnet indicated that immediately after being stabbed, blood
would have started spurting from Henderson’s wound and death would have
occurred within a matter of minutes. She indicated that Henderson would have
been able to walk after being stabbed, but that she would have felt light headed
very quickly.
{¶ 14} Bowen testified that he became involved in the melee after he noticed
several of his male friends fighting with people he had never seen before. He
didn't know why the fight started and indicated he had no success in trying to
break things up. He did not recall fighting with appellant.
{¶ 15} Bowen identified himself, Henderson, and appellant on surveillance
footage taken at the bar during the fight. He did not see appellant stab Henderson
but he recalled—and the surveillance footage corroborated—that the three of
them were in close proximity to each other in the moments before Henderson
grabbed her neck and walked away from the melee. However, a table lifted-up
and thrown during the fight, obscured the camera at the exact moment Henderson
likely received the fatal stab wound to her neck.
{¶ 16} Detective William Goodlet of the Toledo Police Department testified that
he interviewed Bowen shortly after the fight. While Bowen admitted to
participating in the fight, he was unable to identify anyone he was fighting.
{¶ 17} Detective Goodlet went to a local hospital after receiving information that
another potential witness, Basilia Smith, was being treated for injuries she
received during the fight. When questioned, Smith admitted to being at the bar
and receiving injuries during the melee. However, she was too intoxicated to
provide any additional information helpful to the detective’s investigation.
{¶ 18} A few hours after he interviewed Smith, Detective Goodlet received
surveillance video from the bar’s numerous interior and exterior cameras. The
time frame of the preliminary video spanned from 1:39:00 a.m. through 2:15:00
a.m. The detective and his team watched the video in real time but found it grainy
and “really tough to follow.” Detective Goodlet and his team of investigating
officers made a determination to start analyzing footage of the back lot where
Henderson’s body was found and work back in time in an effort to determine
4

where and when she was injured. At the time, they knew the identities of very few
people in the bar. During this period of the investigation, appellant’s identity was
unknown, but he was one of several “persons of interest” because of his proximity
to the victims during the melee.
{¶ 19} A short time later, Detective Goodlet obtained additional surveillance
video. After the Detective and his team watched the additional footage, they
invited Bowen back in to the station and showed him still shots of the footage.
Bowen was able to identify himself, but was not able to identify any of the
suspects.
{¶ 20} About a week after the incident, Detective Goodlet received a call from
one of the men who had been working security inside the bar. Based upon that
conversation, Detective Goodlet made contact with Wells. Detective Goodlet
described his first phone conversation with Wells, as follows:
He told me what he had seen, where he was at, he stated he was at the bar with his
brother. He’s—he’s having a good time. There’s somebody yelling, security,
security, security. He comes out, sees just fighting. People fighting everywhere.
He states he runs out of the bar and while he’s outside the bar, he sees a large
Hispanic male come out of the bar. He’s got a girl in his right hand and he’s got a
knife in his left hand. He said he saw this Hispanic male run, run from the scene,
and he said that's the guy, he did it.
A week later Wells came down to the station. During a recorded interview, but
after Wells identified a “big Mexican with tattoos on his head,” Detective Goodlet
showed Wells still shots from the surveillance video. Wells was able to point out
the appellant.
{¶ 21} At trial, Detective Goodlet indicated that the majority of Wells’ recorded
statement was consistent with Wells’ testimony in court, with one exception;
during the recorded interview, Wells did not indicate that “he observed [appellant]
punching or making some striking movement at Miss Henderson.”
{¶ 22} Video footage from outside the bar demonstrated that appellant arrived at
12:46 a.m. with three women. A few moments later, video footage from inside
the bar depicted the three women walking past the bouncer without being patted
down. Detective Goodall testified that the video showed appellant entering the bar
after being given a “cursory pat down * * * at best.” Detective Goodall pointed
out that the bouncer did not pat appellant down towards his ankles or around his
back.
{¶ 23} Video footage demonstrates that appellant was on the bar’s back patio
until approximately 1:55 a.m. At that time, appellant moved into the view of
camera 3, inside the bar. At 1:55:58 a.m., appellant is seen on footage from
camera 3 and camera 12, seated, taking a brief phone call. There is no sign of any
fighting. At 1:59:29 a.m., appellant abruptly stands up. At the same time, camera
5

11 depicts a fight on the dance floor. In the moments that follow, appellant walks
out of and then back into the view of camera 12. Bowen is in the middle of the
ruckus, but appellant is not engaged in the fight.
{¶ 24} At 2:00:32 a.m., appellant is seen speaking with one of the women he
came into the bar with. Thereafter, appellant moves away from the camera and
out of view. At 2:01:42 a.m., Bowen is depicted on camera 12; his shirt and hat
are off, and he is picking up and throwing a chair towards the ruckus. At the
same time, appellant moves back into view on the far side of the screen. The
video footage on camera 12 depicts no fewer than 17 individuals participating in
or in close proximity to the ruckus.
{¶ 25} At 2:01:51 a.m., Henderson is depicted on the left front side of camera 12.
Appellant is depicted on the center back of the camera’s footage. No one appears
to be attacking appellant, although a chair is thrown in his general direction. At
2:01:54 a.m., Bowen engages with an unidentified individual. At 2:01:55 a.m.,
appellant moves toward Bowen and the unidentified individual. Two frames
later, appellant and Bowen are depicted near an exit door, arms swinging. At the
same time, two individuals in the forefront of the screen pick up chairs, while a
third individual picks up a table. At 2:01:58 a.m., Henderson can be seen on the
edge of the screen just to the left of Bowen. The table obscures the camera's view
of appellant, Bowen, and Henderson.
{¶ 26} Detective Goodall identified both Bowen and Henderson at 2:01:59 a.m.
fully engaged in the ruckus. Ms. Henderson appears to be bending over and
moving away from the ruckus while Bowen remains engaged with two other
individuals. Henderson then stands up and backs away from the commotion. At
2:02:00 a.m., Henderson puts her left hand up to the left side of her neck. She
then exits the view of camera 12 while Bowen continues to engage in the ruckus.
The view of appellant is obscured for four or five frames. At 2:02:05 a.m.,
Bowen throws a chair towards appellant and runs out of the view of camera 12.
Appellant pushes a few individuals out of the exit door, grabs one of the girls he
came in with and exits the bar at 2:02:17 a.m.
{¶ 27} Meanwhile, at 2:02:07 a.m., on camera 3, Henderson is seen walking
across the lobby area of the bar towards the bouncer’s chair. Detective Goodall
points to what he describes as “discoloration” on her shirt and explains that
Henderson appears with her left hand on the left side of her neck, under her long
dark hair. At 2:02:12 a.m., Wells is seen exiting the bar from the main lobby
area. At 2:02:27 a.m., Bowen exits. A dark circle is visible on his upper left
bicep in the area of his stab wound.

{¶ 28} At 2:02:31 a.m., on footage from camera 16, appellant is seen running
through the parking lot with a woman, a second woman following close behind.

6

Appellant and both women climb into a pick-up truck, appellant in the passenger
seat, and drive towards the entrance to the bar.
{¶ 29} Before the conclusion of Detective Goodall’s direct examination, he
indicated that to his knowledge, only two individuals received stab wounds during
the fight: Henderson and Bowen. A third individual, Smith, was treated at the
hospital for injuries inconsistent with a knife wound.
{¶ 30} On cross examination, Detective Goodall confirmed he did not find a knife
associated with appellant nor did he find any blood stained clothes in appellant’s
possession.
{¶ 31} Detective Goodall also confirmed that when he spoke with Wells on
January 15, 2013, Wells did not mention that he saw appellant strike Henderson
in the neck.
{¶ 32} A recording of appellant’s interview with police was shown to the jury.
During the interview, appellant indicated he went to the bar with a few girls and
he wasn't there long before the fight broke out. He denied seeing any weapons
other than beer bottles and chairs. When asked whether he stabbed Henderson, he
shook his head “no.”
{¶ 33} Following the presentation of evidence, the jury found appellant guilty of
murder in violation of R.C. 2903.02(B) and 2929.02, an unspecified felony.
Alvarado was found not guilty of felonious assault. The trial court sentenced
Alvarado to 15 years to life in prison.
State v. Alvarado, 2015 WL 139519 (Ohio App. 6th Dist. Jan. 9, 2015).
II.
A.

Procedural History

State Court Proceedings
1.

Trial Court

The January 2013 session of the Lucas County Grand Jury issued an indictment charging Alvarado
with one count of murder in violation of Ohio Rev. Code § 2903.02(B) and 2929.02; and one count of
felonious assault in violation of Ohio Rev. Code § 2903.11(A)(2). (Doc. No. 12-1, Ex. 1.) Alvarado
entered a plea of not guilty. (Doc. No. 12-1, Ex. 2.)
The matter proceeded to jury trial. On August 23, 2013, the jury found Alvarado guilty of murder,
but not guilty of felonious assault or the lesser included offense of aggravated assault. (Doc. No. 12-1, Ex.

7

3.) On September 10, 2013, the trial court sentenced Alvarado to a prison term of 15 years to life. (Doc.
No. 12-1, Ex. 4.)
2.

Direct Appeal

On October 3, 2013, Alvarado, through the same counsel, filed a notice of appeal to the Sixth
District Court of Appeals of Ohio (“state appellate court”). (Doc. No. 12-1, Ex. 5.) In his merit brief,
Alvarado raised the following four assignments of error:
I.

Prosecutorial misconduct occurred in the State’s rebuttal closing when the State
impermissibly referred to the content of Appellant’s character and the Appellant
acting in conformity with that character.

II.

The trial court abused its discretion by not sanctioning State for a discovery
violation over the objection of defendant.

III.

Appellant’s conviction was against the manifest weight of the evidence.

IV.

There was insufficient evidence to sustain Appellant’s conviction.

(Doc. No. 12-1, Ex. 6.) The State filed a brief in opposition. (Doc. No. 12-1, Ex. 7.) The state appellate
court affirmed Alvardo’s conviction and sentence on January 9, 2015.

State v. Alvarado, 2015 WL

139519 (Ohio App. 6th Dist. Jan. 9, 2015).
On February 20, 2015, Alvarado, through new counsel, filed a notice of appeal to the Ohio
Supreme Court. (Doc. No. 12-1, Ex. 9.) In his Memorandum in Support of Jurisdiction, Alvarado raised
the following five Propositions of Law:
I.

Defective jury instructions that deprive a defendant of substantive rights
constitute plain error as described in Crim. R. 52(B) and may be considered by the
reviewing court although the error was not objected at trial.

II.

When a prosecutor makes impermissible and prejudicial statements in reference to
a defendant’s character during closing arguments, such comments are improper
and prejudicially affect the defendant’s constitutional right to a fair trial.

III.

Defendant is effectively denied his constitutional right to assistance of counsel
where counsel’s performance is deficient and there is a reasonable probability that
counsel’s deficient performance prejudiced defendant, depriving him of his due
process right to a fair trial.
8

IV.

An appellate court has a duty to reverse the conviction and order a new trial
where a trial court’s verdict is against the manifest weight of the evidence.

V.

A judgment may be reversed if the cumulative effect of multiple errors deprives a
defendant of his constitutional rights even though, individually, the errors may not
rise to the level of prejudicial error or cause for reversal.

(Doc. No. 12-1, Ex. 10.) The State filed a brief in opposition. (Doc. No. 12-1, Ex. 11.) On July 22, 2015,
the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to S.Ct. Prac. R. 7.08(B)(4).
(Doc. No. 12-1, Ex. 12.)
3.

Application to Reopen Appeal

Meanwhile, on April 7, 2015, Alvarado, through counsel, filed an Application to Reopen his
Appeal pursuant to Ohio App. R. 26(B). (Doc. No. 12-1, Ex. 13.) Alvarado argued appellate counsel was
ineffective for failing to raise the following arguments on direct appeal:
I.

Defendant was effectively denied his constitutional right to effective assistance of
counsel during trial.

II.

Defective jury instructions deprived Defendant of his right to a fair trial.

III.

Prosecution’s impermissible and prejudicial statements during closing arguments
denied Defendant his Constitutional Right to a Fair Trial.

IV.

The Cumulative Prejudicial Effect of the Multiple Errors Defendant Suffered
During Trial Deprived Him of Constitutional Rights and Warrant Reversal.

(Doc. No. 12-1, Ex. 13.) The State filed a brief in opposition. (Doc. No. 12-1, Ex. 14.)

The state

appellate court denied Alvarado’s Application on June 8, 2015 on the merits. (Doc. No. 12-1, Ex. 15.)
On July 17, 2015, Alvarado, through counsel, filed a notice of appeal to the Ohio Supreme Court.
(Doc. No. 12-1, Ex. 16.) In his Memorandum in Support of Jurisdiction, Alvarado raised the following
Propositions of Law:
I.

When reviewing an application to re-open an appeal, the appellate court owes
Appellant the right to consider the merits of a claim where it is apparent in the
record that there is genuine issue with regard to counsel’s effectiveness, in
violation of Appellant’s constitutionally guaranteed right to the effective
assistance of counsel.
9

II.

When considering an application to re-open an appeal, when presented with
genuine issue of with regards to counsel’s effectiveness, the appellate court
should be required to entertain arguments previously waived as evidence of
counsel’s alleged ineffectiveness.

(Doc. No.12-1, Ex. 17.) The State filed a brief in opposition. (Doc. No. 12-1, Ex. 18.) On September 30,
2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to S.Ct.Prac.R.
7.08(B)(4). (Doc. No. 12-1, Ex. 19.)
4.

Motion for Leave to File Motion for New Trial

On December 18, 2015, Alvarado, through counsel, filed a Motion for Leave to File a Motion for
New Trial in the state trial court. (Doc. No. 12-1, Ex. 21.) Therein, Alvarado argued he was entitled to a
new trial based on newly acquired evidence that supported his claims of innocence, ineffectiveness of trial
counsel, and prosecutorial misconduct both before and after trial. Most notably, Alvarado attached an
affidavit dated November 11, 2015 from the State’s key witness, Charles Wells, in which Mr. Wells
averred, in relevant part, as follows:
3.

The reason I am here is to clear my conscious. I feel bad. I was coached by the
prosecutor and persuaded to lie on the stand. I did not know at the time that I
would be their only witness and my testimony was material to their case. Now
Hector is serving a life sentence due to my testimony. I am here today to go on
the record and set things straight.
***

5.

What happened that night was that we were at the bar, me and a few of my
brothers and friends. A fight jumped off and there was a commotion, ripping,
running, and people standing off in the cut. I seen the fight and I seen my friend
the bouncer trying to break the fights up. After the fight was over, I left the club
with my brothers and friends.

6.

I didn’t really see nobody with no knife. When I got outside, all I knew was the
police was pulling up. We were waiting on my friend Dave, the bouncer, to see if
he needed a ride. He told me a girl got stabbed but he didn’t need no ride.

7.

A couple of days later, me and my friend Dave was talking and he told me the girl
died and it was flashing across the news. My friend Dave reminded me of who
Christina Henderson was. Dave used to mess around with her mother. I

10

remember the girl. I spent a lot of time in the house when she was young, and her
mother always treated us like family. She used to cook for us and stuff.
8.

Everyone was mad, I couldn’t believe she was dead. The family was so upset, I
knew I had to help.

9.

Next thing I know, Dave told me a bunch of people had been subpoenaed and a
bunch of people had already talked. Detectives asked if I would come down and
talk too.

10.

When I got down there, I already had a case pending. My house got raided for
cocaine, heroin, weed, pills, etc. so I was thinking “what can you do for me?”
When I first talked to the Prosecutor, they ran the screen the showed me the
[surveillance] tape.

11.

There was so much commotion, I couldn’t really identify the man they wanted me
to identify. The prosecutor pointed him straight out to me and I just rolled with it.
The Prosecutor talked him so bad and told me he just got out on felonious assault.
He said “I just want that fucker back in there so bad” and that was when he
pointed him out to me. I did remember seeing Hector, he is noticeable, but I
didn’t even know who he was and couldn’t see him on the video.

12.

Even when the Prosecutor pointed Hector out on video, I didn’t see any knife in
his hand. I did see him fighting, but there was a whole lot of people fighting.
There was so much commotion going on I don’t think anyone saw who had a
knife.

13.

Later, I seen Hector in the parking lot leaving, I still didn’t see a knife.

14.

The Prosecutor said “I will do everything I can to make it go away.” [it being the
pending charges]. After he promised me that he would make everything go away,
he disappeared. I could never get ahold of him and I ended up doing time.

15.

The family was so upset I thought I was doing the right thing. It’s been on my
conscious, it’s been weighing on me.
***

17.

In addition, I want to go on the record and say that [Alvarado’s trial counsel]
Attorney John Thebes owes me money for a case. He promised to represent me
on a charge in 2012, on CRB-12-01061-0202 and appeared twice on my behalf,
but never saw the case through. The whole trial with Hector, he never acted like
we knew each other and never refunded any of my money.

(Doc. No. 12-1, Ex. 21 at Page ID#s409-410.)

11

In his motion, Alvarado argued “Wells’ affidavit shows that the prosecution, in bad faith, failed to
disclose material evidence favorable to defendant, violating Alvarado’s due process rights and denying
him the right to a fair trial.” (Id. at Page ID# 387.) Alvarado also asserted “the prosecution’s failure to
disclose Wells’ prospective deal constitutes a Giglio [v. United States, 405 U.S. 150 (1972)] claim and
Brady [v. Maryland, 373 U.S. 83 (1963)] error.” (Id. at Page ID# 389.) Finally, Alvarado argued “Wells’
affidavit, in conjunction with Alvarado’s affidavit, shows that Alvarado was effectively denied his
constitutional right to assistance of counsel.” (Id. at Page ID# 396.)
Also on December 18, 2015, Alvarado filed a Petition for Post-Conviction Relief pursuant to Ohio
Rev. Code § 2953.23. (Doc. No. 12-1, Ex. 22.) The Petition incorporated by reference Alvarado’s
Motion for Leave to File Motion for New Trial and supporting affidavits. (Id.) The Petition raised the
following sole ground for relief:
I.

Freestanding actual innocence mandating relief under the Federal and
Ohio Constitutions.

(Id.) The State moved to dismiss Alvarado’s Motion for Leave and Post-Conviction Petition primarily on
the grounds they were untimely filed. (Doc. No. 12-1, Exhs. 23, 24.)
On March 16, 2016, the state trial court denied Alvarado’s Motion and Petition on the grounds
Alvarado had “failed to establish that he was unavoidably prevented from timely discovering the evidence
on which he now relies, and that [Alvarado] has not submitted sufficient evidence of unavoidable delay to
merit a hearing on the matter.” (Doc. No. 12-1, Ex. 25.)
On April 14, 2016, Alvarado, through counsel, filed a notice of appeal to the state appellate court.
(Doc. No. 12-1, Ex. 26.) In his merit brief, Alvarado raised the following grounds for relief:
I.

The trial court abused its discretion when it denied Mr. Alvarado’s motion for
leave to file a motion for new trial, without holding a hearing on the issue of
whether Mr. Alvarado was unavoidably prevented from discovery of the key
witness’s recantation.

12

II.

The trial court erred as a matter of law in denying Mr. Alvarado’s petition for
post-conviction relief without holding a hearing on the issue of whether Mr.
Alvarado was unavoidably prevented from discovery of the key witness’s
recantation.

(Doc. No. 12-1, Ex. 27.) The State filed a brief in opposition, to which Alvarado replied. (Doc. No. 12-1,
Ex. 28; Doc. No. 26, Ex. 36.)
On May 12, 2017, the state appellate court affirmed the trial court’s denial of Alvarado’s Motion
for New Trial and Petition for Post-Conviction Relief. (Doc. No. 26, Ex. 37.) The state appellate court
explained as follows:
{¶28} Here, appellant was convicted in August 2013, and he filed his motion for
leave to file a motion for new trial and petition for postconviction relief -in
December 2015, well beyond the120-day limit in Crim.R. 33 and the 360-day
limit set forth in R.C. 2953.23(A). Thus, appellant was required to establish that
he was unavoidably prevented from timely discovering the evidence upon which
he relies. Moreover, in order for appellant to be entitled to a hearing on his
motion for leave or petition for postconviction relief, the evidence submitted to
the trial court by appellant must have, on its face, supported his claim that he was
unavoidably prevented from timely discovering the evidence upon which he now
relies.
{¶29} As an initial matter, we note no argument or issue was raised by appellant
at the trial court level or in his briefs before us concerning the timeliness of
discovery of the information in the affidavits of Basilia Smith, Nolberto Armenta,
DeAna and Mario Parraz and the Toledo Police Department Supplemental Crime
Report of Detective Rider, which sets forth a summary of Wells’ interview with
Detective Goodlet, all of which were filed by appellant in support of his motion
for leave and petition for postconviction relief. We will therefore only concern
ourselves with whether the affidavits of appellant and Wells, on their face,
support the claim that appellant was unavoidably prevented from timely
discovering the new evidence on which he relies.
{¶ 30} A review of appellant’s affidavit and Wells’ affidavit reveals no indication
as to why or when Wells had a change of conscience and decided to cooperate
and recant his trial testimony. There is no averment in either affidavit as to what
prompted Wells to contact appellant's current counsel, or when or how Wells
became aware of appellant’s current counsel. In addition, neither affidavit
mentions why appellant nor his counsel did not or could not contact Wells prior to
November 2015, when Wells executed his affidavit, to secure Wells’ cooperation.
{¶31} In light of the foregoing, we find the affidavits on their face fail to establish
that appellant was unavoidably prevented from discovering the new evidence
13

upon which he now relies. Thus, the trial court did not abuse its discretion in
denying both appellant’s motion for leave to file a motion for new trial and
petition for postconviction relief without holding a hearing. Accordingly,
appellant’s assignments of error are not well-taken.
(Id. at PageID# 1303-1304.)
On June 23, 2017, Alvarado, through counsel, filed a notice of appeal to the Ohio Supreme Court.
(Doc. No. 26, Ex. 38.) In his Memorandum in Support of Jurisdiction, Alvarado raised the following four
Propositions of Law:
I.

A defendant’s due process rights are violated and he is unavoidably prevented
from discovering new evidence when the prosecution (1) withholds material,
exculpatory evidence, and (2) knowingly presents false evidence at trial. 5th and
14th Amendments to the United States Constitution; Article I, Section 16, Ohio
Constitution; Crim. R.33(B).

II.

The requirement in Criminal Rule 33(B) that a defendant show by clear and
convincing proof that he was "unavoidably prevented from the discovery of the
evidence upon which he must rely" before he may file a motion for new trial
based on newly discovered evidence does not require the defendant to contact the
prosecution's witnesses and implore them to recant their trial testimony. Crim. R.
33(B). U.S. Const. 6th and 14th Amend.

III.

A defendant is denied his right to the effective assistance of counsel when his trial
and appellate attorney has an undisclosed conflict of interest that prevents him
from timely discovering exonerating evidence, failed to investigate corroborating
witnesses, and failed to properly advise on plea. U.S. Const. 6th Amend.; Article
I, Section 10, Ohio Constitution.

IV.

The conviction and incarceration of an innocent person violates the United States
Constitution. U.S. Const. 8th and 14th Amend.

(Doc. No. 26, Ex. 39.) The State filed a brief in opposition. (Doc. No. 26, Ex. 40.) On January 30, 2018,
the Ohio Supreme Court declined to accept jurisdiction of the appeal pursuant to S.Ct.Prac.R. 7.08(B)(4).
(Doc. No. 26, Ex. 41.)

14

B.

Proceedings in this Court
On October 20, 2016, Alvarado, through counsel, filed the instant Petition, raising the following

nine grounds for relief:
I.

The prosecutor violated Petitioner’s right to a fair trial by improper and
prejudicial statements.

II.

The State violated Petitioner’s rights to due process and fair trial when it
suppressed favorable, material evidence. Brady v. Maryland, 373 U.S. 83 (1963).

III.

The State violated Petitioner’s right to due process and fair trial when it presented
false evidence or allowed it to go uncorrected.

IV.

The evidence against Petitioner is insufficient to sustain his conviction, thus
violating Petitioner’s due process rights under the 14th Amendment.

V.

Petitioner is actually innocent of the crime for which he was convicted, and his
convictions violate the 14th Amendment.

VI.

The trial court violated Petitioner’s rights to due process and fair trial by
erroneously instructing the jury and relieving the State from its burden of proving
every element of the offense charged beyond a reasonable doubt.

VII.

Petitioner was denied his constitutional right to assistance of counsel provided by
the Sixth Amendment.

VIII.

Petitioner was denied his right to effective assistance of appellate counsel. U.S.
Const. Amends. VI and XIV.

IX.

Petitioner was denied his constitutional right to conflict free counsel when his
attorney had both represented Petitioner and the State’s main witness against
Petitioner.

(Doc. No. 1.)1
Shortly thereafter, on October 28, 2016, Alvarado filed a Motion for Stay and Abeyance. (Doc.
No. 5.) In his Motion, Alvarado argued his Second, Third, Fifth, Seventh and Ninth Grounds for Relief
were not yet exhausted because they were raised in his Motion for Leave to file Motion for New Trial and
Petition for Post-Conviction Relief, both of which were the subject of his then- pending appeal in the state
appellate court. Alvarado maintained his habeas petition should be stayed because “there is good cause
1

In his Traverse, Alvarado withdrew his Sixth Ground for Relief. (Doc. No. 32 at 38.)
15

for his failure to exhaust his claims, his claims are potentially meritorious, and he has not intentionally
engaged in dilatory tactics.” (Id. at 4.) Respondent filed a cursory opposition to Alvarado’s Motion to
Stay on November 17, 2016, in which it principally argued the Motion was “premature.” (Doc. No. 9.)
On December 27, 2016, Respondent filed its Return of Writ, along with portions of the state court
record. (Doc. No. 12.) Therein, Respondent argued the majority of Alvarado’s claims (including those
that were the subject of his Motion to Stay) were procedurally defaulted. (Id.) Respondent further
maintained Alvarado had failed to establish cause and prejudice, or actual innocence, to excuse the
default. (Id.)
On February 7, 2017, the undersigned issued a Report & Recommendation that Alvarado’s Motion
to Stay be granted in order to allow him to exhaust his Second, Third, Seventh and Ninth Grounds for
Relief. (Doc. No. 17.) No objections were filed, and, on March 3, 2017, the Report & Recommendation
was adopted, and the instant matter was stayed. (Doc. No. 18.) Alvarado was instructed to (1) file
quarterly status reports in this Court regarding the progress of his state court appeal; and (2) seek
reinstatement on this Court's active docket within thirty days of fully exhausting his state court remedies.
(Id.)
Alvarado filed Quarterly Status Reports on March 28, June 28, September 29, and December 29,
2017. (Doc. Nos. 19, 20, 21, 22.) On February 26, 2018, Alvarado filed a Notice that he had exhausted
his claims in state court, and requested the Petition be reinstated to the Court’s active docket. (Doc. No.
23.) Alvarado’s request was granted shortly thereafter, and this matter was referred to the undersigned for
further proceedings. (Doc. No. 24.)
On March 2, 2018, the undersigned ordered Respondent to supplement the state court record to
reflect proceedings occurring during the stay of the instant Petition. (Doc. No. 25.) Respondent filed a
Supplemental State Court Record on April 2, 2018. (Doc. No. 26.)

16

On May 8, 2018, Alvarado filed a Motion for Discovery regarding his Second, Third, Seventh and
Ninth Grounds for Relief. (Doc. No. 28.) Therein, he requested leave to conduct the depositions of
Charles Wells; defense attorney John Thebes; Toledo Police Detectives William Goodlet and Tonya
Rider; and Lucas County Prosecutors Michael Bahner, Clinton Wasserman, and Charles McDonald. (Id.
at 2.) Alvarado also sought leave to obtain copies of (1) all files concerning his own prosecution; (2) all
files concerning the prosecution of Charles Wells in Lucas County Court of Common Pleas Case Nos. G4801-CR-201302717-000 and G-201301780-000; and (3) all files “concerning the incident at the South
Beach Bar and Grill on December 31, 2012 and January 1, 2013, and the murder of Christina Henderson
and assault on Stacey Bowen, in possession of the Toledo Police Department.” (Id.) Respondent filed a
brief in opposition, to which Alvarado replied. (Doc. Nos. 30, 31.)
On May 21, 2018, Alvarado filed a Motion to Expand/Complete the Record, in which he sought an
Order requiring Respondent to submit the exhibits from his underlying state court trial. (Doc. No. 29.)
Respondent filed a brief in opposition, to which Alvarado replied. (Doc. Nos. 33, 34.)
Meanwhile, and while these Motions were pending, Alvarado filed his Traverse on June 1, 2018.
(Doc. No. 32.) Respondent filed a Sur-Reply to the Traverse on June 18, 2018. (Doc. No. 35.)
On September 18, 2018, the undersigned granted in part (as to Grounds Two and Three) and
denied in part (Grounds Seven and Nine) Alvarado’s Motion for Discovery (Doc. No. 28) and granted his
Motion to Expand/Complete the Record (Doc. No. 29).

(Doc. No. 36.)

On September 21, 2018,

Respondent filed objections to the Order granting the motion for discovery (Doc. No. 37), to which
Alvarado responded (Doc. No. 38). On November 5, 2018, the Court accepted the undersigned’s Order
granting in part and denying in part the motion for discovery and granting the motion to expand/complete
the record. (Doc. No. 39.)

17

Alvarado had until September 30, 2019 to file a motion for leave to amend his petition and/or
traverse and a motion to expand the record. (Non-document Order dated July 22, 2019.) On September
30, 2019, Alvarado filed his: (1) Motion for Leave to File an Amended Petition or in the Alternative to
File an Amended Traverse (Doc. No. 73); (2) Motion to Expand the Record under Rule 7 (Doc. No. 72);
and (3) Unopposed Motion for Order to File Exhibit Under Seal (Doc. No. 71).
On October 2, 2019, the Court granted Alvarado leave to file an exhibit under seal. (Doc. No. 74.)
On October 30, 2019, Respondent filed responses in opposition to Alvarado’s motion to amend
and motion to expand the record (Doc. Nos. 76, 77), to which Alvarado replied (Doc. Nos. 78, 79).
III.
A.

Motion for Leave to Amend

Standard

It is well established that Rule 15 of the Federal Rules of Civil Procedure applies to a habeas
petitioner’s request for leave to amend his petition. Mayle v. Felix, 545 U.S. 644, 655, 125 S.Ct. 2562,
162 L.Ed.2d 582 (2005). See also Glenn v. Coleman, 2014 WL 4983661, at *5 (N.D. Ohio Oct. 6, 2014);
Shank v. Mitchell, 2013 WL 3208554 at *3 (S.D. Ohio June 24, 2013). Under Rule 15(a), a party may
amend his or her pleadings once as a matter of course within twenty-one days after serving it or, if the
pleading is one to which a responsive pleading is required, twenty-one days after service of a responsive
pleading. Fed. R. Civ. P. 15(a). Otherwise, the party may amend only with the opposing party’s written
consent or by leave of court, which “shall be freely given when justice so requires.” Id. See also Mayle,
545 U.S. at 655.
As Respondent filed his Answer/Return of Writ on December 27, 2016, leave of court must be
obtained before Alvarado may amend his Petition. In determining whether leave should be granted, a
habeas court should consider several factors, including “[u]ndue delay in filing, lack of notice to the
opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous

18

amendments, undue prejudice to the opposing party, and futility of amendment.” Coe v. Bell, 161 F.3d
320, 341 (6th Cir.1998) (quoting Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir.1994.)) See also Powers v.
Beightler, No. 5:08CV00520, 2010 WL 649623, at *1 (N.D. Ohio Feb. 19, 2010).

If a proposed

amendment lacks merit on its face, it is deemed futile. See e.g., Moss v. United States, 323 F.3d 445, 475
(6th Cir. 2003). See also Clark v. Ohio Adult Parole Authority, Nos. 2:16-cv-00204, 2:16-cv-00413, and
2:16-cv-00414, 2017 WL 495508, at *6 (S.D. Ohio Feb. 6, 2017); Brown v. Clipper, No. 5:14CV1406,
2016 WL 5173331, at *20 (N.D. Ohio Sept. 21, 2016); Soler-Norona v. Brewer, No. 17-11357, 2018 WL
1964677, at *1 (E.D. Mich. April 26, 2018). In the Sixth Circuit, leave to amend a pleading may be
denied on grounds of futility only if the amended pleading would not withstand a motion to dismiss under
Fed. R. Civ. P. 12(b)(6). See Kottmyer v. Maas, 436 F.3d 684, 691–92 (6th Cir. 2006); Hall v. Clipper,
No. 1:10-cv-1340, 2011 WL 2671310, at *11 (N.D. Ohio July 8, 2011). “Courts have interpreted Rule
15(a) ‘as setting forth a liberal policy of permitting amendments to ensure the determination of claims on
their merits.’” Phillips v. Smith, No. 5:09CV1848, 2010 WL 2291143, at *2 (N.D. Ohio Jun. 2, 2010)
(quoting Long v. Warden, Warren Corr. Institution, 2009 WL 3169964 (S.D. Ohio Sept. 28, 2009))
(additional internal quotation marks omitted).
Following the discovery allowed regarding Grounds Two and Three, Alvarado seeks to amend his
Petition as to Grounds One, Two, Three, and Five, or in the alternative, his Traverse. (Doc. No. 73.)
Respondent opposes amendment, arguing that amendment as to each of these grounds is futile. (Doc. No.
77.)
B.

Analysis
1.

Grounds One, Two, and Three

As noted supra, Respondent argued many of the grounds presented in Alvarado’s habeas petition
were procedurally defaulted, including the third remark raised in Ground One and Grounds Two and

19

Three. (Doc. No. 12 at 19-24; Doc. No. 35 at 2-9.) Alvarado argues the information gathered during
discovery helps demonstrate cause and prejudice and actual innocence to excuse the procedurally
defaulted claims, in addition to supporting his grounds for relief. (Doc. No. 73 at 5-21; Doc. No. 79 at 314.) Respondent does not assert that there has been undue delay in Alvarado’s filing of the motion to
amend, lack of notice, that Alvarado acted in bad faith, or a likelihood of undue prejudice to Respondent if
forced to respond to the amended claims. (Doc. No. 77.) Rather, Respondent asks the Court to deny the
motion to amend because any amendment would be futile. (Id.) As to Ground One, Respondent argues:
(1) Cullen v. Pinholster bars the Court from considering Alvarado’s new evidence when reviewing the
merits relating to the first and second remarks as the state courts considered and ruled on the merits of
those claims; (2) the third remark raised in the Petition was procedurally defaulted and the information
obtained in discovery does not excuse the defaults; and (3) to the extent Alvarado alleges that the Crime
Stoppers tips were not provided in open file discovery, any claims related to those documents are
unexhausted. (Id. at 11.) As to Grounds Two and Three, Respondent appears to argue the evidence
obtained through discovery does not establish cause and prejudice or actual innocence to excuse the
procedurally defaulted claims. (Id. at 13-20.)
As this district has previously explained in a case where the Respondent opposed amendment
solely on futility grounds:
Futility, alone, can constitute a satisfactory ground for denying a motion for leave
to amend. See generally Wiedbrauk v. Lavigne, 174 Fed. Appx. 993 (6th Cir.
2006) (affirming denial of motion to amend when amendment would have been
futile). Permission to amend, however, should be granted freely when justice so
requires.
Phillips, 2010 WL 2291143, at *2. “Recognizing that these theories exist in tension rather than harmony
with one another,” the Court allowed Phillips to amend his Petition. Id.
The Court cannot conclude from the face of Alvarado’s motion to amend that the proposed
amendments as to Grounds Two and Three are clearly frivolous or legally insufficient. See McNeill v.
20

Bagley, No. 1:02 CV 1645, 2018 WL 3348876, at *8 (N.D. Ohio July 9, 2018) (“A proposed amendment,
however, must be frivolous or legally insufficient on its face to warrant denial of leave to amend on
[futility grounds].”) (internal citations omitted). Respondent’s procedural default defense should be raised
in the answer to Alvarado’s amended Petition, “allowing [Alvarado] the opportunity to respond fully and
the Court to consider all issues in light of the entire record.” Id.
In addition, Respondent fails to mention “the most critical factors in determining whether to grant
leave to amend: notice and substantial prejudice to the opposing party.” Id. (citing Coe, 161 F.3d at 341).
And the Court finds no prejudice in allowing Alvarado to amend his Petition with respect to Grounds Two
and Three. “Respondent has long been aware of” Alvarado’s Brady and Giglio claims, and “little
additional work on [Respondent’s] part should be required to address them.” Id. Therefore, the Court
grants Alvarado’s motion to amend Grounds Two and Three of his Petition. As the Court is already
allowing amendment of the Petition on other grounds, without reaching the merits in any way and out of
an abundance of caution under the circumstances presented with respect to Ground One, the Court will
allow Alvarado to amend his Petition as to Ground One as well.
2.

Ground Five

In his Fifth Ground for Relief, Alvarado asserts he is actually innocent. The Sixth Circuit,
however, has repeatedly held that actual innocence is not cognizable as a free-standing habeas claim,
particularly in the context of non-capital proceedings. See Cress v. Palmer, 484 F.3d 844, 854 (6th Cir.
2007). See also Thomas v. Perry, 553 F. App’x 485, 486 (6th Cir. 2014) (“Thomas’ freestanding claim of
actual innocence based on newly discovered evidence is not cognizable on federal habeas review”); Sitto
v. Lafler, 279 F. App’x 381, 382 (6th Cir. 2008) (“[W]e continue to adhere to the rule that a free-standing
innocence claim is not cognizable for habeas review”); Wright v. Stegall, 247 F. App’x 709, 711 (6th Cir.
2007) (“Since the Supreme Court has declined to recognize a freestanding innocence claim in habeas

21

corpus, outside the death-penalty context, this court finds that petitioner’s claim is not entitled to relief
under available Supreme Court precedent.”); Hoop v. Jackson, 2015 WL 6735895, at *22 (S.D. Ohio Nov.
4, 2015) (“Case law in the Sixth Circuit establishes that the Supreme Court of the United States has never
recognized a free-standing or substantive actual innocence claim.”); Carter v. Bradshaw, 2015 WL
5752139, at *51 (N.D. Ohio Sept. 30, 2015); Keenan v. Bagley, 2012 WL 1424751, at n.28 (N.D. Ohio
April 24, 2012); Johnson v. Kelly, 2015 WL 1298711, at *11 (N.D. Ohio March 23, 2015) (adopting
report and recommendation). Therefore, amendment of Ground Five would be futile. Alvarado’s motion
to amend Ground Five is DENIED.
IV.

Motion to Expand/Complete the Record

In his Motion to Expand the Record, Alvarado requests the Court allow him to expand the record
with the deposition transcripts and exhibits in support of his First, Second, Third, and Fifth Grounds for
Relief. (Doc. No. 72 at 4.) Alvarado asserts Rule 7 of the Rules Governing §2254 Cases permits
expansion of the record with relevant documents and exhibits, and the proposed documents and exhibits
are relevant to demonstrate cause and prejudice and to his claims. (Id. at 4-13.)
Respondent argues Alvarado’s motion should be denied because “Alvarado has not demonstrated
that he was not at fault for failing to develop the evidence in state court. Alvarado also cannot introduce
new evidence because he cannot satisfy 28 U.S.C. 2254(e)(2)(A)-(B). Alvarado has failed to demonstrate
that the factual predicates of his claims could not have been previously discovered through the exercise of
due diligence.” (Doc. No. 76 at 5.)2 Further, Respondent argues a portion of Alvarado’s First Ground for

2

In a footnote, Respondent also “notes that in considering the depositions, the Court should resolve the
objections. Additionally, Respondent notes that none of the witnesses were able to authenticate deposition
exhibits 30 and 52; thus, they are not admissible. Additionally, deposition exhibits 4A, 43, 44, 45, 66, and
73 contain personal identifiers.” (Doc. No. 76 at 1.) Alvarado did not respond to Respondent’s argument
in his reply. (Doc. No. 78.) First, suffice it to say, such important arguments should not be relegated to
footnotes. Second, in light of any specific argument by Respondent and lack of response by Alvarado, the
Court declines Respondent’s footnote invitation to rule on all objections raised in the deposition
22

Relief was reviewed on the merits, and thus Pinholster bars this Court from considering any evidence that
was not before the state court when it reviewed his claims. (Id. at 12.) In addition, Respondent argues
Alvarado’s Fifth Ground for Relief is non-cognizable. (Id. at 12-13.)
Alvarado replies that: (1) Pinholster does not prohibit this Court from expanding the record; (2)
“courts in this Circuit do not require a petitioner to meet the standards laid out in 2254(e)(2) before
expanding the record”; and (3) section 2254(e)(2) only applies to claims – therefore, the Court may
expand the record “for purposes of considering threshold issues such as procedural default and actual
innocence.” (Doc. No. 78.)
As this Court recently explained:
Motions to expand the record under Rule 7 must meet the standards of AEDPA’s
§ 2254(e)(2), although that provision is expressly directed only at evidentiary
hearings. Holland v. Jackson, 542 U.S. 649, 653 (2004) (per curiam) (“Those
same restrictions [of § 2254(e)(2)] apply a fortiori when a prisoner seeks relief
based on new evidence without an evidentiary hearing.” (emphasis original)).
Section 2254(e)(2) precludes an evidentiary hearing “[i]f the applicant has failed
to develop the factual basis of a claim in State court proceedings” unless the
applicant satisfies certain conditions.12 28 U.S.C. § 2254(e)(2).
Under AEDPA, therefore, a prisoner may introduce new evidence in support of a
claim in the district court “only if [the prisoner] was not at fault in failing to
develop that evidence in state court, or (if he was at fault) if the conditions
prescribed in § 2254(e)(2) were met.” Holland, 542 U.S. at 652–53. A prisoner is
at fault in failing to develop the evidence if there is a “lack of diligence, or some
greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v.
Taylor, 529 U.S. 420, 432 (2000). The required diligence is “a reasonable attempt,
in light of the information available at the time, to investigate and pursue claims
in state court.” Id. at 435. “Diligence will require in the usual case that the
prisoner, at a minimum, seek an evidentiary hearing in state court in the manner
prescribed by state law.” Id. at 437. “[C]omity is not served by saying a prisoner
‘has failed to develop the factual basis of a claim’ where he was unable to develop

transcripts, in addition to the specific objections to exhibits 30 and 52, at this stage of the proceeding. To
the extent Respondent has specific objections to evidence raised in Alvarado’s amended Petition,
Respondent shall properly raise and brief those objections in response to Alvarado’s amended Petition, to
which Alvarado shall respond. Regarding the personal identifiers in deposition exhibits 4A, 43, 44, 45,
66, and 73, the Court seals the deposition exhibits at Doc. No. 72-7. Alvarado shall refile the deposition
exhibits with the personal identifiers redacted.
23

his claim in state court despite diligent effort. In that circumstance, an evidentiary
hearing is not barred by § 2254(e)(2).” Id.
McNeill, 2018 WL 3348876, at **8–9.
Wells executed his recantation affidavit in November 2015.

(Doc. No. 12-1, Ex. 21.)

On

December 18, 2015, Alvarado filed a Motion for Leave to File Motion for New Trial and a Petition for
Post-Conviction Relief. (Doc. No. 12-1, Ex. 21, 22.) In his Motion for Leave to File a Motion for a New
Trial, Alvarado requested in the alternative the trial court hold a hearing before reaching a decision on his
motion. (Doc. No. 12-1, Ex. 21 at 31-33.) The trial court determined Alvarado failed to establish he was
“unavoidably prevented from timely discovering” this evidence (Doc. No. 12-1, Ex. 25), which Alvarado
strongly disputed (and continues to dispute – see Doc. Nos. 72, 78). Alvarado appealed the trial court’s
denial of his Motion for Leave to File a Motion for a New Trial and his Petition for Post-Conviction Relief
all the way up to the Ohio Supreme Court. (Doc. No. 12-1, Ex. 26; Doc. No. 26, Ex. 38.)
In the undersigned’s Report and Recommendation on Alvarado’s motion to stay-and-abey this case
to exhaust certain state court remedies, in considering the factors under Rhines v. Weber, 544 U.S. 269
(2005) as to whether stay and abeyance were proper, the undersigned found with respect to whether there
was any evidence Alvarado engaged in “intentionally deliberate litigation tactics” as follows: “Lastly, the
Court finds there is no evidence that Alvarado has engaged in intentionally dilatory litigation tactics.
Wells executed his recantation affidavit in November 2015, and Alvarado promptly filed his Motion for
Leave to file New Trial Motion and Petition for Post-Conviction Relief the following month.” (Doc. No.
17 at 23) (emphasis added). No objections were filed in response to that Report and Recommendation,
which the Court adopted on March 3, 2017. (Doc. No. 18.)
The Court finds, under the circumstances presented here, that Alvarado demonstrated the requisite
diligence in attempting to develop the factual basis of his Brady and Giglio claims, as well as his

24

prosecutorial misconduct claim,3 in state court, and he may expand the record to include the deposition
transcripts and exhibits into the record without satisfying § 2254(e)(2)’s conditions.4 McNeill, 2018 WL
3348876, at *9 (citing and quoting Getsy v. Mitchell, 495 F.3d 295, 310 (6th Cir. 2007) (“Getsy sought to
develop evidence regarding his judicial-bias claim both at trial and in his postconviction proceedings in
state court. He has thus demonstrated diligence in accordance with § 2254(e)(2).”); Greer v. Mitchell, 264
F.3d 663, 681 (6th Cir. 2001) (“In the case before us, petitioner pursued his ineffective assistance of
appellate counsel claim with proper diligence, raising it first—albeit prematurely—in his petition for postconviction relief and then in his motion for delayed reconsideration. Both of these pleadings requested an
evidentiary hearing, which was never afforded by the Ohio courts. Consistent with Williams v. Taylor,
therefore, we conclude that petitioner is not precluded from an evidentiary hearing as he exercised the
necessary diligence in attempting to establish the factual record in state court.”); and Hoffner v. Bradshaw,
No. 3:05 CV 687, 2007 WL 3171631, at *3 (N.D. Ohio Oct. 29, 2007) (Gwin, J.) (“Petitioners who
request an evidentiary hearing in the appropriate state court proceedings are sufficiently diligent, even
when the state court fails to grant the request.”) (citing Greer, 264 F.3d at 681)).
However, as the Court found above that amendment of Alvarado’s free-standing claim of
innocence in Ground Five would be futile, the Court denies Alvarado’s request to expand the record as to
Ground Five.
Alvarado’s request to expand the record to include the deposition transcripts and exhibits is
GRANTED IN PART AND DENIED IN PART.

3

In so finding, the Court does not reach the merits of any exhaustion, procedural default, or other defenses
that may be asserted with respect to these claims.
4
As discussed in n.2, supra, the Court reserves ruling on any evidentiary objections. The parties shall
address any specific evidentiary objections in their briefs.
25

IV.

Conclusion

Accordingly, and for all the reasons set forth above, Alvarado’s Motion for Leave to File an
Amended Petition or in the Alternative to File an Amended Traverse (Doc. No. 73) is GRANTED IN
PART and DENIED IN PART as set forth in this Order. Alvarado’s motion to expand the record (Doc.
No. 72) is GRANTED IN PART and DENIED IN PART.
Given the personal identifiers in deposition exhibits 4A, 43, 44, 45, 66, and 73, the Court SEALS
Doc. No. 72-7. Alvarado shall file promptly the deposition exhibits with the personal identifiers redacted.
Alvarado shall file his amended Petition by March 4, 2020. Respondent shall file a Return to the
Amended Petition no later than 60 days from the filing of the amended Petition; i.e., May 4, 2020.
Alvarado shall file a Traverse no later than 30 days from the filing of the Return; i.e., June 3, 2020.
Respondent may file a sur-reply no later than 15 days from the filing of the Traverse; i.e., June 18, 2020.
Given the passage of time in this case, the parties should not expect any extensions of these deadlines.
IT IS SO ORDERED.

Date: February 3, 2020

s/ Jonathan Greenberg
Jonathan D. Greenberg
United States Magistrate Judge

26