Raglin v. Mitchell

Filing 176

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON PETITIONER'S MOTION FOR CERTIFICATE OF APPEALABILITY - Nothing in the Notice of Additional Authority persuades the Magistrate Judge that changes are needed in the recommendation already made. Objections to R&R due by 4/23/2012. Signed by Magistrate Judge Michael R Merz on 4/3/2012. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
WALTER RAGLIN,
:
Petitioner,

Case No. 1:00-cv-767
:

District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

-vsBETTY MITCHELL, Warden,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON PETITIONER’S
MOTION FOR CERTIFICATE OF APPEALABILITY

This capital habeas corpus case is pending on Petitioner’s Objections (Doc. No. 170) to the
Magistrate Judge’s Report and Recommendations recommending that Petitioner’s Motion for
Certificate of Appealability (the “COA Motion”) be granted in part and denied in part (Doc. No.
169). On March 30, 2012, Petitioner filed a Notice of Supplemental Authority, advising the Court
of the Supreme Court’s decision in Martinez v. Ryan, 566 U.S. ___, 2012 U.S. LEXIS 2317 (Mar.
20, 2012), and suggesting it supports Petitioner’s position in several respects.
Petitioner asserted in his COA Motion that “he had a right under the Federal Constitution
to the effective assistance of counsel in his state post-conviction proceedings.” Id. at PageID 1108.
The Supreme Court declined to extend the Sixth Amendment constitutional right to counsel to
collateral relief proceedings. It did, however, hold:
[W]hen a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim in a collateral
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proceeding, a prisoner may establish cause for a default of an
ineffective-assistance claim in two circumstances. The first is where
the state courts did not appoint counsel in the initial-review collateral
proceeding for a claim of ineffective assistance at trial. The second
is where appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was ineffective
under the standards of Strickland v. Washington, 466 U. S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome the default, a
prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim has
some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322, 123 S. Ct. 1029,
154 L. Ed. 2d 931 (2003) (describing standards for certificates of
appealability to issue).

Martinez, 2012 U.S. LEXIS 2317, at 22-23.
In Arizona, the State from which Martinez arose, ineffective assistance of trial counsel
claims can only be raised in a collateral attack on the judgment. Id. at *7. In Ohio, in contrast,
ineffective assistance of trial counsel claims which can be shown from the appellate record must be
raised on direct appeal or they are barred by Ohio’s criminal res judicata doctrine from being
presented later in post-conviction proceedings under Ohio Revised Code § 2953.21. State v. Perry,
10 Ohio St. 2d 175 (1967). See also State v. Cole, 2 Ohio St. 3d 112 (1982); State v. Duling, 21
Ohio St. 2d 13 (1970). Of course, claims of ineffective assistance of trial counsel which depend on
material dehors the record and and must be raised by petition for post-conviction relief. Ohio
Revised Code § 2953.21(I)(1) mandates appointment of counsel for filing a post-conviction petition
in a case in which a death sentence has been imposed. Unless that mandate was not followed in this
case, counsel was appointed.
Because the record in this case was filed before adoption of the CM/ECF filing system, the
record has not been filed electronically. The paper record is not presently housed in Dayton, Ohio,

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so the Magistrate Judge cannot examine that portion of the record which would indicate who
represented Petitioner in the post-conviction proceedings. He was represented on appeal from
denial of post-conviction relief by the Ohio Public Defender.
As best the Magistrate Judge can tell, the only claim of ineffective assistance of trial counsel
which was not raised in post-conviction is claim D.3 in Ground One: failure to object to
prosecutorial mis-conduct (See Report and Recommendations on Certificate of Appealability, Doc.
No. 169, PageID 1216.) Petitioner has not made any actual argument as to how he could satisfy the
Martinez standard as to this claim.
Petitioner’s second point in the Notice of Supplemental Authority is that:
Martinez supports Raglin’s allegation that Ohio’s res judicata rule
is not an adequate and independent state ground as applied to claims
of ineffective assistance of counsel. See Martinez, 2012 WL 912950
at *8. Martinez suggests that claims of ineffective assistance of
counsel cannot be fairly adjudicated on direct appeal unless there is
time given for an adequate investigation into trial counsel’s
performance, along with a mechanism for expanding the record to
include extraneous evidence in support of the claim. See id. Ohio
does not provide a process of this nature.
(Doc. No. 174, PageID 1287).
The relevant language from Martinez reads:
This is not to imply the State acted with any impropriety by reserving
the claim of ineffective assistance for a collateral proceeding. See
Massaro v. United States, 538 U.S. 500, 505, 123 S.Ct. 1690, 155
L.Ed.2d 714 (2003). Ineffective-assistance claims often depend on
evidence outside the trial record. Direct appeals, without evidentiary
hearings, may not be as effective as other proceedings for developing
the factual basis for the claim. Ibid. Abbreviated deadlines to expand
the record on direct appeal may not allow adequate time for an
attorney to investigate the ineffective-assistance claim. See Primus,
Structural Reform in Criminal Defense, 92 Cornell L.Rev. 679, 689,
and n. 57 (2004) (most rules give between 5 and 30 days from the
time of conviction to file a request to expand the record on appeal).
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Thus, there are sound reasons for deferring consideration of
ineffective-assistance-of-trial-counsel claims until the
collateral-review stage, but this decision is not without consequences
for the State's ability to assert a procedural default in later
proceedings. By deliberately choosing to move trial-ineffectiveness
claims outside of the direct-appeal process, where counsel is
constitutionally guaranteed, the State significantly diminishes
prisoners' ability to file such claims. It is within the context of this
state procedural framework that counsel's ineffectiveness in an
initial-review collateral proceeding qualifies as cause for a
procedural default.
Martinez, 2012 WL 912950 at *8.
The Magistrate Judge reads this passage as actually supportive of the Ohio process of
allowing evidence dehors the record to be supplied on ineffective assistance of trial counsel claims
in the trial court, so long as that process is properly implemented. The judge who tried the case is
in a much better position to evaluate ineffective assistance of trial counsel claims which depend on
additional evidence, particularly on the question of prejudice, the second prong of the Strickland v.
Washington test. Reasons of that sort have pushed ineffective assistance of trial counsel claims in
the federal courts into § 2255 proceedings. See Massaro v. United States, 538 U.S. 500 (2003).
However, as already noted in the Report and Recommendations on Certificate of Appealability,
there is no suggestion from the Supreme Court that Massaro is constitutionally mandated.
Nothing in the Notice of Additional Authority persuades the Magistrate Judge that changes
are needed in the recommendation already made.
April 3, 2012.
s/ Michael R. Merz
United States Magistrate Judge

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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 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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