O'Neal v. Bagley

Filing 103

ORDER granting in part and denying in part 96 Motion for Certificate of Appealability; Certificates of Appealability SHALL issue as to grounds one, two, seven, and eighteen. A Certificate of Appealability is DENIED as to ground seventeen. Adopting in part and Declining to Adopt in part Report and Recommendations re 100 Report and Recommendations.; Sustaining in part and denying in part 101 Objection to Magistrate Judge Order. Signed by Judge Michael R. Barrett on 8/22/2011. (jlw)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
James O’Neal,
Petitioner,
v.

Case No. 1:02-cv-00357

Margaret A. Bagley, Warden,

Judge Michael R. Barrett

Respondent.
ORDER
Before the Court is Petitioner James O’Neal’s Motion for Certificate of
Appealability (Doc. 96), Respondent’s Response in Opposition to Petitioner’s motion
(Doc. 98), and Petitioner’s reply (Doc. 99). Also before the Court is the Report &
Recommendation (“R&R”) of Magistrate Judge Michael R. Merz (Doc. 100), and
Petitioner’s objections to the R & R (Doc. 101).
For the reasons that follow, Petitioner’s Motion for Certificate of Appealability
(Doc. 96) is hereby GRANTED in part, and DENIED in part. Further, the Court
ADOPTS in part, and DECLINES TO ADOPT in part the Magistrate’s R & R (Doc. 100),
and SUSTAINS Petitioner’s objection to the Magistrate’s R & R (Doc. 101) as to ground
seven, and DENIES Petitioner’s request to remand ground eighteen to the Magistrate
Judge.
Therefore, a certificate of appealability (“COA”) SHALL ISSUE as to grounds
one, two, seven, and eighteen. A certificate of appealability is DENIED as to ground
seventeen.

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I.
An appeal of a final order in a habeas corpus proceeding cannot be taken unless
a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) A
certificate of appealability will issue only where the petitioner has made a substantial
showing of the denial of a constitutional right. 28 U.S.C § 2253(c)(2). A petitioner must
show that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003).
II.
In Petitioner’s Motion for Certificate of Appealability (Doc. 96), COAs were
requested for grounds one, two, seven, seventeen, and eighteen. In the Magistrate’s R
& R (Doc. 100), it was recommended that this Court issue COAs as to grounds one,
two, and eighteen, and deny them as to grounds seven and seventeen (Id. at 9).
The grounds for relief for which Petitioner requested the issuance of a COA are
as follows:
Ground One
Petitioner’s right to fair warning and due process under the
Fourteenth Amendment was denied by the change in the rule of
law with respect to a spouse’s privilege to enter the marital
residence by the Court of Appeals in its pretrial decision in O’Neal I
and by the Ohio Supreme Court in the application of its decision in
State v. Lilly.
Ground Two
Petitioner’s right to due process under the Fourteenth Amendment
was denied by his convictions on counts, specifications, and
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charges of aggravated burglary on insufficient evidence.
Ground Seven
Petitioner was denied his Sixth Amendment right to the effective
assistance of counsel by the failure of trial counsel to introduce a
complete copy of the lease listing Petitioner as husband and
occupant of the home and by their failure to introduce evidence
that locks to the home had not been changed.
Ground Seventeen
Petitioner’s right to due process under the Fourteenth Amendment
and his right to be free from cruel and unusual punishment under
the Eighth Amendment were violated by the cumulative effect of all
the errors committed during the culpability and penalty phases of
the trial and on appeal.
Ground Eighteen
The imposition of a sentence of death on Petitioner violates his
right to be free from cruel and unusual punishment under the
Eighth Amendment to the United States Constitution because he is
mentally retarded under the standards – reasonably applied –
announced in Atkins v. Virginia and in light of the facts –
reasonably determined – presented to the state courts that show
that Petitioner suffers from significantly subaverage intellectual
functioning which had its onset before he attained the age of 18
and which leaves Petitioner with significant limitations in two or
more adaptive behavior skills.
On grounds one, two, and eighteen, this Court agrees with the Magistrate
Judge’s determination that COAs should issue, and finds that reasonable jurists could
debate whether the outcome of those grounds should have been resolved differently.
The Magistrate Judge’s recommendation that a COA should not issue on ground
seventeen was not objected to by Petitioner, and this Court adopts that
recommendation.
As to ground seven, this Court declines to adopt the Magistrate’s
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recommendation that no COA should issue. The Magistrate Judge reasoned that
Petitioner had shown no prejudice from the trial counsel’s failure to introduce a
complete copy of the lease of the residence where Petitioner’s wife was killed and
evidence that the locks of the residence had not been changed (Doc. 100, p. 6). The
Magistrate Judge pointed to the state appellate court’s determination that the pages of
the “lease” at issue did not have the legal effect of giving Petitioner a right to be on the
property. Further, the Magistrate Judge found that because there was already
testimony of record as to the intention of the victim to change the locks, any additional
testimony would have been cumulative (Id.).
While the evidence at issue might not have been dispositive as to Petitioner’s
right to be on the property, in light of the state’s burden to prove that Petitioner
committed a trespass, and the evidence’s relevance as to whether “both
parties…understood that the possessory interest of one was being relinquished,” State
v. O’Neal (1995), 103 Ohio App.3d 151, 155, 658 N.E.2d 1102, 1104, this Court finds
that reasonable jurists could disagree as to whether the outcome of ground seven of
the petition should have been different. For this reason a COA as to ground seven will
issue.
Finally, the Court denies Petitioner’s request that ground eighteen be remanded
to the Magistrate Judge for determination of the supplemental appendix (Doc. 83).
While the supplemental appendix was filed after the Magistrate Judge’s Report and
Recommendations (Doc. 80), it was filed over a month before Petitioner’s objections to
the R & R, and three months before this Court’s Order Adopting Report and
Recommendations (Doc. 91).
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This Court reviews de novo “those portions of the report or specified proposed
findings or recommendations to which objection is made.” Tuggle v. Seabold, 806 F.2d
87, 92 (6th Cir. 1986); 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). Petitioner
made extensive arguments in support of his objection to the Magistrate Judge’s
recommendation as to ground eighteen (Doc. 88, pp. 17-39). Petitioner’s supplemental
appendix was a part of the record in this case at the time that this Court undertook de
novo review of the Magistrate Judge’s recommendation on ground eighteen, and
Petitioner cited specifically to the supplemental appendix in his objections. Therefore,
this Court finds it unnecessary to remand to the Magistrate Judge for further
consideration on ground eighteen.
III.
For the foregoing reasons, the Court finds as follows:
1.

Certificates of Appealability SHALL issue as to grounds one, two, seven,
and eighteen.

2.

A Certificate of Appealability is DENIED as to ground seventeen.

3.

Petitioner’s Motion for Certificate of Appealability (Doc. 96) is GRANTED
in part, and DENIED in part.

4.

Magistrate Judge’s R & R (Doc. 100) is ADOPTED in part, and
DECLINED in part.

5.

Petitioner’s objections to the R & R (Doc. 101) are SUSTAINED in part
and DENIED in part.

IT IS SO ORDERED.
s/ Michael R. Barrett
Michael R. Barrett
United States District Judge
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