Bies v. Bagley
Filing
173
SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is respectfully recommended that Bies be granted a Certificate of Appealability on his fourth ground for relief, as it is clear that reasonable jurists could disagree as to whether that part of Bies' ; petition states a valid claim of a denial of a constitutional right. In addition, a Certificate of Appealability should be issued as to Bies' sixth ground for relief as reasonable jurists may find the Magistrate Judges conclusions on the proc edural and substantive issues debatable. As for Bies' first, second, third, and fifth grounds for relief, it is recommended that no Certificate of Appealability be issued. Objections to R&R due by 2/27/2012. Signed by Magistrate Judge Michael R Merz on 2/10/2012. (kpf1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MICHAEL BIES,
:
Petitioner,
Case No. 1:00‐cv‐682
:
Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
‐vs‐
MARGARET BAGLEY, Warden,
:
Respondent.
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This capital habeas corpus case is before the Court on Petitioner Michael Bies’ Objections
(Doc. No. 171) to the Magistrate Judge’s Report and Recommendations recommending that the
habeas corpus petition be denied (Doc. No. 167). Respondent has filed a Response opposing Bies’
Objections (Doc. No. 172). The General Order of Reference for the Dayton location of court permits
a Magistrate Judge to reconsider decisions or reports and recommendations when objections are
filed.
Grounds One, Two, and Three: Involuntary Statements, Involuntary Waiver of Rights, and
Improper Admission of Involuntary Statements
In his first, second, and third grounds for relief, Bies contended that his statements to police
during interrogation should not have been admitted into evidence at his trial because they were
not voluntarily made. He argued that his mental retardation and functional illiteracy made him
particularly vulnerable to the interrogating officers’ interrogating techniques, that he does not have
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the intellectual ability to knowingly and voluntarily waive his Miranda rights, and that his
statements made without having been advised of his Miranda rights should not have been admitted
into evidence. No further analysis is needed on these grounds for relief beyond what appears in
the original Report and Recommendations.
Ground Four: Brady Claim
Bies claimed in his fourth ground for relief that the prosecutors in his case withheld
exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The Magistrate Judge
recommended that the claim be denied because “[m]uch of the material [Bies] claims should have
been disclosed consists of inadmissible hearsay, inadmissible polygraph test results, supposition,
and conjecture, and he has not indicated how any of that information would have led to material
evidence that could have been presented at his trial.” (Doc. No. 167 at PAGEID 1720.)
Bies points out that in his co‐defendant Darryl Gumm’s case, a nearly identical Brady claim
was presented in habeas corpus. In that case also, the undersigned Magistrate Judge recommended
that the Brady claim, which relates to much of the same information withheld in this case, be
dismissed. The District Judge assigned to Gumm’s case disagreed. Judge Rice held in pertinent
part:
Petitioner objects to the Magistrate Judgeʹs finding concerning the
materiality of the undisclosed evidence. He notes that the
prosecution has a duty to turn over all favorable exculpatory
evidence. Petitioner argues that even if the evidence itself was not
admissible at trial, it could prompt defense counsel to pursue other
investigative leads and could ultimately lead to other admissible
evidence. See United States v. Phillip, 948 F.2d 241, 249 (6th Cir. 1991)
(ʺinformation withheld by the prosecution is not material unless the
information consists of, or would lead directly to, evidence
admissible at trial for either substantive or impeachment purposes.ʺ).
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The Court sustains Petitionerʹs objection on this claim. The Court
agrees with the Magistrate Judge that much of the undisclosed
evidence was itself inadmissible, but that does not necessarily mean
that it would not lead to admissible evidence or that it was not
subject to disclosure.
* * *
In Petitionerʹs case, the State had tips and investigative files on
several other suspects, but failed to turn them over to defense
counsel. The Court is particularly troubled by the prosecutorʹs failure
to turn over tips, interview notes and other evidence concerning
suspect Roger Cordray. The police had received Crime‐Stoppers tips
that Cordray slept in the vacant building where Aaronʹs body was
found, and often drank in the building next door. Christine
Robertson told the police that Cordrayʹs coat was supposedly found
in the building where Aaronʹs body was found and Cordray had
threatened her not to say anything about it. There were rumors in
the neighborhood that Cordray had killed Aaron. However, more
significantly, the police had statements from Anthony and Theresa
Steele, who said that Cordray had confessed to them that he had
killed Aaron. Interview notes from Petitionerʹs sister indicate that
two other individuals — Donna Jones and Paul Worthington — also
heard Cordray say that he had killed Aaron. In addition, police
interviewed Roberta Shinkle, who told them that William OʹMalley
beat Cordray, because Cordray said that he and a friend had killed
Aaron.
The police located Cordray, questioned him, fingerprinted him, and
took pictures of his shoes. Cordray denied any involvement in the
murder and the police officers found him to be credible. The tread on
his shoes did not match imprints from the crime scene. His palm
print bore some similarities to prints found at the scene, but no
positive match could be made.
Even if the police considered the evidence of Cordrayʹs alleged
confessions to be unreliable, it was still favorable to Petitioner and
should have been disclosed. If this information had been turned over
by the prosecutor, defense counsel could have conducted their own
investigation and may have called Anthony and Theresa Steele,
Donna Jones, and Paul Worthington to testify at trial. ...
Cordrayʹs alleged confession obviously subjected him to criminal
liability. In the Courtʹs view, there were sufficient ʺcorroborating
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circumstancesʺ to support the trustworthiness of his confession.
Perhaps most significantly, he apparently confessed to at least four
separate individuals and was allegedly beaten up because of his
involvement in Aaronʹs murder. In addition, he was known to hang
around the vacant building where Aaronʹs body was found, and he
allegedly threatened Christine Robertson not to tell anyone that his
coat was also found in that building. Cordrayʹs palm print revealed
some similarities to prints found at the scene of the crime, and
Anthony Steele also testified that he noticed that Cordrayʹs hand and
knuckles were scraped up.
Gumm v. Mitchell, 2011 U.S. Dist. LEXIS *15‐21 (S.D. Ohio March 29, 2011)(Rice, J.) Judge Rice
concluded that
[T]he investigatory file on Roger Cordray must be considered
material evidence that was withheld by the prosecutor in violation
of Brady. There is a reasonable probability that the outcome of the
trial would have been different if this evidence, standing alone, had
been disclosed. The other evidence at issue may not have been as
likely to lead to admissible evidence. It nevertheless factors into the
Courtʹs finding that, viewed collectively, the evidence that was
withheld undermines confidence in the juryʹs verdict. The state
courtʹs decision to the contrary involved an unreasonable application
of clearly established federal law. The Court therefore sustains
Petitionerʹs objection to the Magistrate Judgeʹs Report and
Recommendations and grants the third amended petition for a writ
of habeas corpus on the Second Claim for Relief.
Id. at *21‐22.
Judge Rice’s decision in Gumm relies on United States v. Phillip, 948 F.2d 241, 249 (6th Cir.
1991), and ABA Formal Ethics Opinion 09‐454 on the prosecutor’s duty to disclose. The ABA
Opinion addresses what a prosecutor ought to do pretrial and does not address how a failure to
act then should be evaluated in habeas corpus. In Phillip the Sixth Circuit held that “information
withheld by the prosecution is not material unless the information consists of, or would lead
directly to, evidence admissible at trial for either substantive or impeachment purposes. “
The police did not have an admission from Cordray that he killed the victim which would,
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of course, have been admissible. In fact, they questioned him, he denied involvement, and they
found him credible.1 Gumm v. Mitchell, 2011 U.S. Dist. LEXIS 32842 *18 (S.D. Ohio Mar. 29, 2011).
Instead, according to Judge Rice, the police had
1.
Crime‐Stoppers tips that Cordray slept in the vacant building where Aaronʹs body was
found, and often drank in the building next door.
2.
A statement from Christine Robertson that Cordray had threatened her not to say anything
about the fact that his coat was supposedly found in the building next door.
3.
Rumors in the neighborhood that Cordray had killed Aaron.
4.
Statements from Anthony and Theresa Steele who said Cordray had confessed to them that
he had killed Aaron Raines.2
5.
Statements from Gumm’s sister that Donna Jones and Paul Worthington heard Cordray say
he had killed Aaron.
6.
A statement from Roberta Shinkle who told police that William O’Malley beat Cordray
because Cordray said he and a friend had killed Aaron.
Id.
The burden is on a Brady petitioner to show that the withheld information was, or would
have led directly to, admissible evidence. Phillip, supra. But that portion of the police investigatory
file related to Cordray fails that test.
1
The tread on Cordray’s shoes did not match imprints from the crime scene and his palm
print had no points upon which it could be identified with a palm print from the scene. (Report and
Recommendations, Doc. No. 167, PageID 1701.)
2
Both Steeles admitted being under the influence of drugs or alcohol at the time the
confession was made to them. (Report and Recommendations, Doc. No. 167, PageID 1702.)
Anthony Steele also stated that Cordray denied having committed the murder. Id. at PageID 1702.
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1.
Crime Stopper tips are understood by the Court to be anonymous,3 so they would not have
led to admissible evidence.
2.
Christine Robertson’s testimony to the same effect as her statement to the police (about
Cordray’s coat) would have been admissible as an inculpatory act of Cordray, but it is
remote from proof he was the perpetrator because (1) the building in question was
abandoned and open to anyone who wished to enter and (2) Cordray knew he was under
suspicion and presumably would have wanted to avoid additional police attention even if
he were not guilty but had merely left a coat in a suspicious place.
(3)
The rumors are obviously not admissible, but they might have led an investigator to
someone who had admissible evidence.
(4)
Testimony by the Steeles that Cordray confessed to them would have been admissible
despite being hearsay because the statements were against Cordray’s penal interest.4
(5)
Testimony by Donna Jones and Paul Worthington that Cordray confessed to them would
have been admissible on the same basis.
(6)
Roberta Shinkle’s testimony that William O’Malley beat Cordray would have been
admissible to show the beating if she saw it or O’Malley admitted it to her. But unless
Cordray made the admission to O’Malley in Shinkle’s presence and the beating followed
immediately, she would not have been able to testify that Cordray said he and a friend had
3
The website for Cincinnati Northern Kentucky Crime Stoppers states “Crime Stoppers
provides a means of communication for members of the public to anonymously provide law
enforcement agencies with information on crimes or suspects.” www.crimestoppers.us/ visited
February 9, 2012.
4
This assumes Cordray would have been unavailable for some reason, e.g., because he pled
his privilege against self-incrimination. It also assumes the trial judge would have found adequate
indicia of reliability, despite the Steeles’ admission of intoxication.
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killed Aaron.
Thus it is possible to hypothesize that some useful admissible evidence could have been
found by a diligent investigator who had this part of the police file. The difficulty with Petitioner’s
Brady claim is that he has had that portion of the file for more than ten years, since he discovered
it in federal habeas, and he has failed to show that it has in fact led to any admissible evidence.
Where are the affidavits from the Steeles, Jones, Worthington, and Shinkle that show what they
would have testified to if called? Petitioner discovered the relevant information from the
prosecutor’s file in federal discovery as shown by his Motion on September 4, 2001, to stay these
proceedings to allow him to exhaust in state court based on the information he had discovered in
these proceedings (Doc. No. 28).
Judge Rice in Gumm found Roger Cordray’s alleged confession(s) to be Brady material that
could have led to admissible evidence that could have established reasonable doubt in the minds of
the jurors. Under de novo review5 in federal habeas corpus, however, it was incumbent upon Bies
to demonstrate that those “could haves” were changed into “would haves,” or at a minimum, had
a reasonable probability of (1) becoming or leading to admissible evidence that (2) created a
reasonable probability that the result of his trial would have been different. See United States v.
Bagley, 473 U.S. 667, 682 (1985). That the information “could have” led to admissible evidence and
“could have” created reasonable doubt in the mind of one or more jurors does not meet that
requirement. In other words, Bies should have performed during preparation of this habeas case
the work he argues his trial counsel would have performed had they known about the rumors
5
In the original Report and Recommendations, the Magistrate Judge determined that the state supreme court
had misapplied its own procedural rule to Bies’ claim, requiring de novo review in these habeas corpus proceedings.
(Doc. 167 at PAGEID 1694-1700.)
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about and alleged confession of Cordray.6 Bies did nothing to develop the information concerning
Cordray into a form that would be admissible in court.
This Court is constrained by the stringent standard of the AEDPA, which places upon a
petitioner the burden of demonstrating, rather than suggesting, entitlement to the writ of habeas
corpus. Having learned about Cordray’s alleged admissions, Bies’ counsel have done nothing to
show what competent trial counsel would have done with that information, how they would have
developed it into admissible evidence. Judge Rice’s discussion of the same evidence in Gumm does
not deal with the question dealt with here, to wit, proof in habeas that the withheld material in fact
would have turned up admissible evidence.
No further analysis is needed on Bies’ fourth ground for relief beyond what appears in the
original Report and Recommendations.
Ground Five: Prosecutors Knowingly Presented Perjured Testimony
In his fifth ground for relief, Bies argued that prosecutors in his case knowingly elicited false
testimony from witness Steven Clark. (Doc. No. 167 at PAGEID 1720‐27.) The Magistrate Judge
recommended denial of that ground, and no further analysis is needed beyond what appears in the
original Report and Recommendations.
Ground Six: Ineffective Assistance of Trial Counsel
In his sixth ground for relief, Bies alleged his trial counsel were ineffective for a variety of
reasons. The Magistrate Judge found much of Bies’ claim procedurally defaulted, and the entire
claim meritless as well. No further analysis is needed on this ground for relief beyond what
6
Following the United States Supreme Court’s holding in Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct.
2951 (2011), of course, the federal habeas corpus court could not consider whatever admissible evidence might have
been developed until after Bies returned to the state court to present it there.
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appears in the original Report and Recommendations.
Request for a Certificate of Appealability
In each of his six objections, Bies requests that if the objection is denied, he be granted a
Certificate of Appealability to pursue an appeal to the Sixth Circuit Court of Appeals. To obtain
a Certificate of Appealability, a petitioner must show at least that “jurists of reason would
find it debatable whether the petition states a valid claim of denial of a constitutional
right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). That is, it must find that reasonable
jurists would find the district court’s assessment of the petitioner’s constitutional claims
debatable or wrong or because they warrant encouragement to proceed further. Banks v.
Dretke, 540 U.S. 668, 705 (2004); Miller‐El v. Cockrell, 537 U.S. 322, 336 (2003). If the district
court dismisses the petition on procedural grounds without reaching the constitutional
questions, the petitioner must also show that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484. The
procedural issue should be decided first so as to avoid unnecessary constitutional rulings.
Slack, 529 U.S. at 485, citing Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J.,
concurring). The first part of this test is equivalent to making a substantial showing of the
denial of a constitutional right, including showing that reasonable jurists could debate
whether the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further, Slack, 529 U.S. at
484, quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983). The relevant holding in Slack is as
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follows:
[W]hen the district court denies a habeas petition on
procedural grounds without reaching the prisonerʹs
underlying constitutional claim, a COA should issue (and an
appeal of the district courtʹs order may be taken) if the
prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial
of a constitutional right, and that jurists of reason would find
it debatable whether the district court was correct in its
procedural ruling.
529 U.S. at 478.
Given Judge Rice’s decision in Gumm, the Magistrate Judge now recommends that Bies be
granted a Certificate of Appealability on his fourth ground for relief, as it is clear that reasonable
jurists could disagree as to whether that part of Bies’ petition states a valid claim of a denial of a
constitutional right. In addition, a Certificate of Appealability should be issued as to Bies’ sixth
ground for relief as reasonable jurists may find the Magistrate Judge’s conclusions on the
procedural and substantive issues debatable. As for Bies’ first, second, third, and fifth grounds for
relief, it is recommended that no Certificate of Appealability be issued.
February 10, 2012.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after being
served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period
is extended to seventeen days because this Report is being served by one of the methods
of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the
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portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendations are based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within fourteen days after being
served with a copy thereof. Failure to make objections in accordance with this procedure
may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas
v. Arn, 474 U.S. 140 (1985).
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