Barton v. Warden, Southern Ohio Correctional Institution

Filing 42

DECISION AND ORDER - The Order granting in part Petitioner's motion for an evidentiary hearing (Doc. No. 29) is VACATED and Respondent's appeal (Doc. No. 31) is moot. The record in this case is now complete. Counsel shall advise the Court not later than June 20, 2011, whether they desire to file additional briefing on the merits. If so, the Court requests counsel agree, if possible on a briefing schedule. Signed by Magistrate Judge Michael R Merz on 6/8/2011. (kpf1)

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

Case No. 1:09-cv-353
:

District Judge S. Arthur Spiegel
Magistrate Judge Michael R. Merz

-vsWARDEN, Southern Ohio
Correctional Facility,
:
Respondent.

DECISION AND ORDER

This case is presently pending before Judge Spiegel on Respondent’s Appeal (Doc. No. 31)
of the Magistrate Judge’s Decision and Order granting in part Petitioner’s motion for an evidentiary
hearing (Doc. No. 29). On April 4, 2011, the United States Supreme Court decided Cullen v.
Pinholster, 563 U.S. ___, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011), and the Magistrate Judge
ordered further briefing on the evidentiary hearing issue in light of Cullen (Doc. No. 38). That
briefing is now complete (Doc. Nos. 40, 41), particularly because Respondent had called the case
to the Court’s attention by way of a Notice of Supplemental Authority (Doc. No. 37).
In granting the evidentiary hearing, the Magistrate Judge focused on Petitioner’s diligence
in developing in state court the evidence he wished to present here, a requirement imposed by
Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), and Michael Williams v. Taylor, 529 U.S. 420 (2000).
Respondent’s Appeal also focuses on the diligence question (Doc. No. 31).
Respondent initially asserts that Cullen proscribes a federal evidentiary hearing, at least
-1-

inferentially, because the Ohio courts decided Barton’s ineffective assistance of trial counsel claim
on the merits and this Court is therefore limited by 28 U.S.C. § 2254(d)(1) to considering the record
that was before the state courts when they made that decision (Notice, Doc. No. 37).
Petitioner responds by conceding that “[t]o satisfy Cullen and to justify the evidentiary
hearing, Barton must establish that his ineffective-assistance claim was never adjudicated on the
merits, as contemplated under § 2254(d), in the state court” (Brief, Doc. No. 40, PageID 2376). He
attempts to do just that, relying on Benge v. Johnson, 474 F.3d 236 (6th Cir. 2007).
Petitioner asserts “the state court refused to apply the Strickland test on either direct appeal
or collateral review.” (Memorandum, Doc. No. 40, PageID 2377.) On this Court’s reading, that is
not so. On direct appeal, the court of appeals wrote:
[*P172] Assignment of Error No. 3:
[*P173]
"APPELLANT RECEIVED THE INEFFECTIVE
ASSISTANCE OF COUNSEL."
[*P174] Appellant argues that his trial counsel provided him with
constitutionally ineffective assistance of counsel. We disagree with
this argument.
[*P175] In order to prevail on an ineffective assistance of counsel
claim, a criminal defendant must make the two-pronged showing set
forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct.
2052, 80 L. Ed. 2d 674. First, a defendant must show that his
counsel's performance was deficient. Id. at 687. This requires
showing that his counsel's performance "fell below an objective
standard of reasonableness." Id. at 687-688. Judicial review of
counsel's performance must be "highly deferential," and a reviewing
court must indulge a strong presumption that counsel's conduct is
professionally reasonable and, under the circumstances, might be
considered sound trial strategy. Id. at 689.
[*P176] Second, a defendant must show that his defense counsel's
deficient performance prejudiced him. Id. at 687. This requires the
defendant to "show that there is a reasonable probability that, but for
-2-

counsel's unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694. A
failure to make a sufficient showing on either the "performance" or
"prejudice" prong of the Strickland standard will doom a defendant's
ineffective assistance of counsel claim. See id. at 697.
[*P177] Appellant contends that his trial counsel's performance was
deficient in three areas. First, appellant argues that his trial counsel
erred by not challenging the hypnosis of Henson. We disagree with
this argument.
[*P178] As we have indicated in response to appellant's 11<th>
assignment of error, there is no showing that Henson's refreshed
testimony was any different than what he had told police before he
was hypnotized. Moreover, appellant's defense counsel may have
deliberately chosen not raise the issue of hypnosis as a matter of trial
strategy. As a result, the record fails to show that a hearing on the
hypnosis issue was required under Johnston, as appellant claims See
id., 39 Ohio St.3d at 54, and Cook, 65 Ohio St.3d at 520.
[*P179] Second, appellant argues that his counsel's performance
was deficient in that it opened the door to evidence of his alleged
polygraph deception. We disagree with this argument. Defense
counsel's decision to question the officers who investigated this case
whether appellant fully cooperated with them was a matter of trial
strategy that is entitled to deference. Strickland, 466 U.S. at 689.
[*P180] Third, appellant argues that his counsel's performance was
deficient in that his counsel failed to raise an objection at trial to: (1)
Henson's alleged hearsay testimony regarding what Phelps told him
about appellant's involvement in the burglary that led to the killing of
his wife, and (2) the admission of the 911 tape. However, we disagree
with these arguments for the same reasons we overruled appellant's
second and fourth assignments of error. Simply put, an objection to
this evidence would have been unsuccessful and, therefore,
appellant's defense counsel was not ineffective for failing to object to
these matters.
[*P181] Appellant's third assignment of error is overruled.
State v. Barton, 2007 Ohio 1099, 2007 Ohio App. LEXIS 1020 (Ohio App. 12th Dist. Mar. 12, 2007).

-3-

On collateral review, Barton claimed he was entitled to an evidentiary hearing on his claim
that his counsel was ineffective for failure to cross-examine Gary Henson on the issue of whether
his memory had been hypnotically refreshed before trial. The court of appeals held it was not an
abuse of discretion to deny a hearing.
... because appellant did not demonstrate substantive grounds for
relief. There is nothing in the record to support the assertion that the
defense was unaware of Henson's hypnosis. Appellant concedes that
the state provided defense counsel with the discovery document
informing them of the hypnosis. John [sic, should be “Jon”] P. Rion1,
the defense attorney responsible for cross-examining Henson, did not
submit an affidavit alleging that he was unaware of Henson's
hypnosis. The absence of an affidavit from John [sic] P. Rion does
not establish that the defense was unaware of Henson's hypnosis.
[*P14] Furthermore, the statement in John H. Rion's affidavit that
he "[had] no recollection of receiving information that Gary
Henson's testimony may have been influenced by hypnosis" was
ambiguous in two respects. First, John H. Rion's statement did not
signify that the defense never received word that Henson had been
subjected to investigative hypnosis. Rather, he contended that he "had
no recollection" of receiving the information. This is clearly different
from making the affirmative assertion that he never received the
information. Second, John H. Rion's statement that he did not recall
being informed that Henson's testimony "may have been influenced
by hypnosis" (emphasis added) was vague. In utilizing such wording,
John H. Rion was not asserting that he believed Henson's testimony
was in fact altered by hypnosis. Instead, his statement offered tenuous
conjecture about the effect of Henson's hypnosis in lieu of making an
affirmative statement that Henson's testimony was altered by the
hypnosis.
[*P15] Although appellant's attorneys failed to address the hypnosis
issue at trial, appellant was not prejudiced as a result. See id. See,
also, Strickland v. Washington (1984), 466 U.S. 668, 687-88, 693,
104 S.Ct. 2052, 80 L. Ed. 2d 674 (providing that, in order to prove
ineffective assistance of counsel, a defendant must show that

1

John H. Rion and Jon P. Rion are both respected and prominent criminal defense
lawyers in the Dayton, Ohio, area. They are respectively father and son.
-4-

counsel's actions fell below an objective standard of reasonableness
and that the defendant was prejudiced as a result). In fact, John H.
Rion's affidavit actually accords with the state's position that the
hypnosis did not significantly alter Henson's testimony.
[*P16] The state maintains that Henson's testimony was not notably
altered by the hypnosis, therefore no hearing on its admissibility was
required. See State v. Johnston (1988), 39 Ohio St.3d 48, 50-51, 529
N.E.2d 898; State v. Doan, Clinton App. No. CA2001-09-030, 2002
Ohio 3351, P31. Major John Newsome of the Warren County
Sheriff's Office, an investigator working on the cold case murder of
appellant's wife, testified in his affidavit that "Henson's testimony at
trial concerned only matters recalled prior to hypnosis. Henson's
testimony was substantially in conformance with his pre-hypnosis
memory." Newsome's testimony, viewed in conjunction with other
evidence in the record substantiating appellant's guilt, supports the
conclusion that defense counsel's failure to address the hypnosis issue
did not prejudice appellant. Therefore, appellant has failed to show
that there was a denial or infringement of his constitutional right to
counsel so as to warrant an evidentiary hearing on his petition for
postconviction relief.
State v. Barton, 2008 Ohio 2736, ¶¶ 13-16, 2008 Ohio App. LEXIS 2312 (Ohio App. 12th Dist. June
9, 2008). Both of these amount to adjudication on the merits of Barton’s ineffective assistance of
trial counsel claim with the Warren County Court of Appeals directly applying Strickland in both
instances.
Petitioner’s claim that “plain error” review was applied on direct appeal applied to his
Eleventh Assignment of Error, not to the Seventh Assignment, which is where ineffective assistance
of trial counsel was pled.
Petitioner’s claim that he had to satisfy an abuse of discretion standard of review on
collateral review is correct, but in this case did not prevent the final decision of the Court of Appeals
from being an adjudication on the merits for purposes of 28 U.S.C. § 2254(d)(1). While the standard
for review of a trial court denial of evidentiary hearing under Ohio Revised Code § 2953.21 is abuse
-5-

of discretion, here the Court of Appeals held there was no abuse of discretion because there was no
substantive merit to the underlying claim. There might be closer cases where an Ohio court of
appeals found arguable merit in a post-conviction claim but no abuse of discretion, but this is not
that case.
Petitioner’s reliance on Benge v. Johnson, 474 F.3d 236 (6th Cir. 2007), is unavailing because
Petitioner’s counsel misreads Benge. The Ohio Supreme Court did not apply plain error analysis
to Benge’s ineffective assistance of trial counsel claim, but rather to his claim that the jury should
have been instructed on the lesser included offense of voluntary manslaughter. 474 F.3d at 245.
The Ohio Supreme Court was not considering an ineffective assistance of trial counsel claim
directly, but on the question whether it would excuse Benge’s default in not raising the claim in the
trial court.
Having concluded that the Ohio courts decided Barton’s ineffective assistance of trial
counsel claim on the merits, this Court must re-evaluate its granting of an evidentiary hearing in
light of Cullen, supra.
In Cullen, the Supreme Court expressly held “that review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated the claim on the merits.” 131 S. Ct. at
1398. That means that any evidence which this Court would have taken at the evidentiary hearing
previously granted would have been immaterial to a decision on whether the Ohio courts’ decisions
on Barton’s ineffective assistance of trial counsel claim was contrary to or an unreasonable
application of United States Supreme Court precedent on ineffective assistance of counsel.
This Court had previously interpreted §§ 2254(d)(1) and 2254(e)(2) consistently with one
another so as to allow a habeas petitioner who had been diligent in attempting to introduce evidence

-6-

in the state courts but unsuccessful in doing so an opportunity to introduce that evidence at a hearing
in this Court. That position is consistent with the alternative ruling in Couch v. Booker, 632 F.3d
241, 245 (6th Cir. 2011)(Sutton, J.), finding no abuse of discretion in granting an evidentiary hearing
on a claim adjudicated on the merits in the state courts.2 But that reading of the two statutes,
accepted by Justices Sotomayor and Alito in Cullen, was rejected by the majority.
Therefore, the Order (Doc. No. 29) granting an evidentiary hearing is VACATED and
Respondent’s appeal (Doc. No. 31) is moot. The record in this case is now complete. Counsel shall
advise the Court not later than June 20, 2011, whether they desire to file additional briefing on the
merits. If so, the Court requests counsel agree, if possible on a briefing schedule.
June 8, 2011.
s/ Michael R. Merz
United States Magistrate Judge

2

Couch was cited by Petitioner has additional authority on appeal of the evidentiary
hearing decision to Judge Spiegel. See Doc. No. 36.
-7-