Were v. Warden Ohio State Penitentiary
Filing
205
OPINION and ORDER signed by Judge Michael H. Watson on 2/14/2024. (jk)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES WERE
N. K.A. NAMIR ABDUL MATEEN,
Petitioner,
Case No. 1:10-cv-698
Judge Michael H. Watson
Magistrate Elizabeth P. Deavers
V.
DAVID BOBBY, Warden,
Respondent.
OPINION AND ORDER
Petitioner, a prisoner sentenced to death by the State of Ohio, has pending
before this Court a habeas corpus action pursuant to 28 U. S. C. § 2254. This
matter is before the Court following an Order directing the parties to brief whether
Ohio Revised Code Section 2953. 23 ("Section 2953. 23") is an independent and
adequate
state
ground,
sufficient to
procedurally default Petitioner's Braafy1 claim,
following the Ohio Supreme Court'sopinion in State v. Bethel, 167 Ohio St. 3d
362 (2022). ECF No. 192. Forthe following reasons, the Court concludes that
Section 2953. 23 is not independent of federal law and does not procedurally
default Brady claims that were dismissed by the Ohio state courts after Bethel.
For Petitioner's Brady claim, which was barred by the Ohio state courts based on
Brady v. Maryland, 373 U. S 83 (1963).
Section 2953. 23 before the Bethel decision, any putative procedural default will
be excused if Petitioner can show that his Brady claim is meritorious.
I.
RELEVANT PROCEDURAL HISTORY
On October 8, 2010, Petitioner initiated the instant habeas proceedings.
ECF Nos. 1 & 2. Petitioner filed his Petition, an Amended Petition, a Second
Amended Petition, a Third Amended Petition, and a Fourth Amended Petition.
ECFNos. 23, 28, 67, 92, 199.
In the midst of those filings, Petitioner returned to state court with a
successive postconviction petition filed in the Hamilton County Court of Common
Pleas. ECF No. 175-1 at PAGEID ## 23894-24057; ECF No. 175-7 at PAGEID
## 27616-27809. Petitioner asserted a Braafy claim therein that he also asserted
in this matter (as Claim Three). ECF No. 92 at PAGEID##2731-2777; ECF No.
199 at PAGEID ## 30380-30418. The Hamilton County Court of Common Pleas
granted summary judgment for the state, dismissing Petitioner's successive
postconviction petition for failing to meet the jurisdictional requirements of
Section 2953. 23. ECF No. 175-9 at PAGEID ## 29249-29250.
The Court of Appeals for the First Appellate District of Ohio ("appellate
court") affirmed the dismissal. ECF No. 175-10 at PAGEID## 29610-29618.
The appellate court found that the dismissal was appropriate because
Petitioner's claims could not satisfy Section 2953. 23 (A)(1)(b), which requires an
outcome-determinative constitutional violation. Id. at PAGEID # 29614. It
elaborated that the Supreme Court of Ohio, when rejecting Petitioner's
Case No. 1:10-cv-698
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sufficiency of evidence claim on direct appeal, characterized the evidence of guilt
at trial as "extensive. " Id. at PAGEID # 29615.
The Supreme Court of Ohio declined to accept jurisdiction over Petitioner's
appeal, ECF No. 175-10 at PAGEID # 30121, and the United States Supreme
Court denied certiorari, ECF No. 151.
Petitioner moved for a stay and abeyance of the federal proceeding,
arguing that the Supreme Court of Ohio's 2022 Bethel opinion rendered his
federal Bra(/y claim unexhausted because of the opinion's expansive
interpretation ofSection 2953. 53(A)(1) and Criminal Rule 33.2 ECF No. 182.
This Court denied Petitioner's Motion to Stay and Abey. ECF No. 192. It
concluded that Bethel did not render Petitioner's Brady claim unexhausted and
that resubmission of a claim to the state courts was unnecessary when the state
courts already had a full opportunity to determine the federal constitutional
issues. The Order also recognized, however, that Bethel may impact this Court's
treatment of Section 2953. 23 as an independent and adequate state ground for
purposes of procedural default because it appears to rely on and be inextricably
interwoven with federal law. Id. at PAGEID ## 30327-30329.
2 Were also argued that Claims Two and Ten were subject to a stay due to State v.
Bethel. He does not contend in his brief, ECF 302, nor does the Court find, that State v.
Bethel applies to any type of claim other than a Brady claim.
Case No. 1:10-cv-698
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II.
POSITIONS OF THE PARTIES
In response to the Court's directive, the parties briefed the issue. EOF
Nos. 202, 203. Petitioner argues that Section 2953. 23 is a state procedural rule
"coexistent with the elements of a Brady claim"and, thus, is not independent of
federal law. ECF No. 202 at PAGEID # 30594. Respondent argues that the
issue is purely academic because Respondent has not yet asserted a procedural
default defense. ECF No. 203 at PAGEID ## 30598, 30601-30602. Respondent
further argues that Bethel did not negate the independence and adequateness of
the state procedural rule because it held that only part of the statuteSection 2953. 23(A)(1)(a)-was coterminous with Brady. Id. at PAGEID
## 30601-30606.3
III.
ANALYSIS
The questions here are whether Section 2953. 23 remains an independent
and adequate state ground for purposes of procedural default following the
Bethel decision, and how the section should apply to Petitioner's Claim Three.
As an initial matter, it is not premature to address the issue now. The
parties jointly requested that the Court address this issue before Respondent
responds to Petitioner's Fourth Amended Petition. ECF No. 193. Furthermore,
3 Respondent also argues that Petitioner conceded during state court proceedings that
he could not meet the requirements of Section 2953. 23. Id. at PAGEID # 30606.
Petitioner's state-court concessions are not pertinent to the Court's analysis of whether,
under federal law, Section 2953. 23 is an independent and adequate state ground. See
Lee v. Kemna, 534 U. S. 362, 375 (2002) (finding that the determination of whether a
particular state procedure is "independent" of federal law is a question offederal law).
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while Respondent may not have formally asserted procedural default yet,
Respondent does not suggest an intention to waive the defense. The Court
therefore proceeds to the issues.
A federal habeas court "will not review a question of federal law decided by
a state court if the decision of that court rests on a state law ground that is
independent of the federal question and adequate to support the judgment."
Coleman v. Thompson, 501 U. S. 722, 729 (1991). This principle is commonly
referred to as the adequate and independent state ground doctrine, and it applies
to procedural and substantive state rules. Walker v. Martin, 562 U. S. 307, 315
(2011).
There are, however, circumstances when a state's procedural rule does
not constitute an "independent" ground that will bar a federal habeas court's
consideration of a federal claim. "When application of a state law bar 'depends
on a federal constitutional ruling, the state-law prong of the court's holding is not
independent of federal law, and [] jurisdiction is not precluded. '" Foster v.
Chatman, 578 U. S. 488, 497-98 (2016) (citing Ake v. Oklahoma, 470 U. S. 68, 75
(1985)). When the "state has made application of the procedural bar depend on
an antecedent ruling on federal law, that is, on the determination of whether
federal constitutional error has been committed .... [the procedural bar]
consequently does not present an independent state ground for the decision
rendered. " Ake, 470 U S. at 75.
Case No. 1:10-cv-698
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The Supreme Court applied this principle in Foster v. Chatman, where it
held that Georgia's application of resjudicata to the petitioner's Batson4 claim
was not independent of federal law. 578 U. S. at 498. The Supreme Court
reached this conclusion because the state court engaged in a lengthy analysis of
the merits of the underlying Batson claim before determining whether to apply the
procedural bar. Id.; see also, Brecheen v. Reynolds, 41 F.3d 1343, 1354 (10th
Cir. 1994) (holding that the petitioner's prosecutorial misconduct claim was not
barred "because th[e] state procedural ruling is dependent on an antecedent
ruling of federal law, the state-law prong of the court's holding is not independent
offederal law. " (internal quotation marks and citations omitted)); Green v. Travis,
414 F. 3d 288 (2d. Cir. 2005) (holding that the petitioner's claim was not
foreclosed because the state appellate court merged the claim preservation issue
with the test for a prima facie Batson claim); Borden v. Alien, 646 F. 3d 785, 816
(11th Cir. 2011) (holding that the petitioner's ineffective assistance of counsel
claim was not procedurally defaulted because the "Alabama court's consideration
of the sufficiency of the pleadings ... necessarily entails a determination on the
merits of the underlying claim[. ]").
This Court's March 15, 2023, Order described the impact of Bethel on
Ohio's application of Section 2953. 23;
The Supreme Court of Ohio found in Bethel that, to meet the
"unavoidably prevented" jurisdictional requirement of Ohio Revised
Code § 2953. 23(A)(1 )(a), the petitioner need only show that the claim
4 Batson v. Kentucky, 476 U. S. 79 (1986).
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was based on information suppressed by the prosecution. The
Supreme Court of Ohio concluded that the trial court erred when it
imposed a diligence standard on Bethel that was inconsistent with
Brady.
The Supreme Court of Ohio also found that the second
jurisdictional requirement, Ohio Revised Code § 2953. 23(A)(1)(b),
"goes to the heart of Brady's third prong, which requires [the
petitioner] to show that there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different. " Bethel was not required to show that the
evidence would have resulted in acquittal; only that it would have
undermined the confidence in the outcome of his trial.. ..
The Supreme Court of Ohio found that Ohio Revised Code
§ 2953. 23 set the jurisdictional bar so high that certain meritorious
Brady claims would never be heard through Ohio's postconviction
process. To remedy this problem, Bef/7e/concluded that Ohio Revised
Code §2953. 23(A)(1) should be interpreted coextensively with
Brady.
ECF No. 192 at PAGEID ## 30320-30321 (internal citations omitted); Were v
Bobby, No. 1:10-CV-698, 2023 WL2522837 (S. D. Ohio Mar. 15, 2023).
The Supreme Court of Ohio unquestionably relied on a federal Brady
analysis as controlling the outcome of the state procedural bar. It did so for both
Sections 2953 "(A)(1)(a)" and "(A)(1)(b). " Thus, Section 2953. 23 is not
independent of federal law and does not default Brady claims dismissed by Ohio
state court decisions rendered after Bethel. It is less clear, however, whether the
same conclusion applies to Brady claims in Ohio that were dismissed pursuant to
Section 2953 before Bethel was decided.
As noted in this Court's March 15, 2023, Order, nearly four years before
the Supreme Court of Ohio decided Bethel, the First District Court of Appeals
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held that jurisdiction was lacking over Petitioner's successive postconviction
claims based on his inability to satisfy the "outcome determinative" prong of
Section 2953. 23(A)(1)(b):
Thus, Were's intellectual-disability, prosecutorial-misconduct, and
ineffective-counsel claims, when considered with the files and records
of the case cannot be said to demonstrate by clear and convincing
evidence that, but for the constitutional errors alleged in those claims,
no reasonable factfinder would have found him guilty of aggravated
murder or kidnapping or eligible for the death sentence. Because with
respect to those claims, Weredid not satisfythe RC. 2953. 23(A)(1 )(b)
jurisdictional requirement, the common pleas court had no jurisdiction
to entertain them.
ECF No. 175-10 at PAGEID ## 29615-29616. This quotation demonstrates that
the last reasoned state-court decision that determined Petitioner's Brady claim
was barred by Section 2953. 23 does not appear to apply the statute in such a
way that is interwoven or coextensive with federal law.
Although Bethel did not expressly overrule State v. Were (or any other
case that was decided on the "outcome-determinative" prong of Section 2953. 23
"(A)(1)(b)"), it appears to have effectively overruled those cases by holding that
Section 2953. 23(A)(1)(b) "goes to the heart of Brady's third prong .. . . " Bethel,
167 Ohio St. 3d at 369-370. In Bethel, the Supreme Court of Ohio went on to
stress that a petitioner asserting a Brady claim is not required to show that
disclosure of the suppressed evidence would have resulted in an acquittal;
rather, the petitioner must show only that the suppression of the evidence
"undermines the confidence in the outcome of the trial. " Id. at 370 (citing Ky/es v.
l^7/Y/ey, 514U. S. 419, 434).
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In the Sixth Circuit, a district court must undertake a four-part analysis
when the state argues that a federal habeas claim is barred by the petitioner's
failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138
(6th Cir. 1986). "First, the court must decide that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner failed to comply
with the rule. " Id. Second, the court must determine whether the state courts
actually enforced the state procedural sanction. Id. Third, it must decide
whether the state procedural forfeiture is an adequate and independent state
ground upon which the state can rely to foreclose review of a federal
constitutional claim. Id. Finally, if the court has determined that a petitioner did
not comply with a state procedural rule, and that the rule was an adequate and
independent state ground, then the petitioner must demonstrate that there was
cause for him not to follow the procedural rule and that he was actually
prejudiced by the alleged constitutional error. Id.
Arguably, the First District Court of Appeals' opinion dismissing Petitioner's
Brac/y claim on Section 2953. 23(A)(1)(b) grounds fails the first part of the Maupin
test. If the First District Court of Appeals used the incorrect analysis, then
Petitioner may not have "failed to comply" with the statute. See Greer v. Mitchell,
264 F. 3d 663, 675 (6th Cir. 2001) ("[W]hen the record reveals that the state
court's reliance upon its own procedural default is misplaced, we are reluctant to
conclude categorically that federal habeas review of the purportedly defaulted
claim is precluded. "). Moreover, if the First District Court of Appeals had applied
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Section 2953. 23, as that section was described four years later in Bethel, then
the section would not have been an adequate and independent state ground that
would procedurally bar Petitioner's Brady claim. 5 This is a reasonable
interpretation of how Section 2953. 23 should be treated with respect to Ohio
state decisions that dismissed Brady claims before Bethel.
However, there is another method for Petitioner to receive a merits review.
If Petitioner can demonstrate a meritorious Brac/y violation, he will also have
made the requisite showing to excuse any putative procedural default, allowing
the Court to grant habeas relief. Hughbanks v. Hudson, 2 F. 4th 527, 535 (6th
Cir. 2021). That is because the Supreme Court has held that "two of the three
elements of an alleged Brady violation, whether the evidence was suppressed by
the State and whether such suppressed evidence was material, constitute the
required cause and prejudice to excuse procedural default. " Id. at 535 (citing
Strickler v. Greene, 527 U. S. 263, 282 (1999)).
Since a meritorious Brady claim is, /pso facto, excused from any
procedural default, it is not necessary for the Court to decide whether
5 Additionally, it could be argued that O. R. C. § 2953. 23, as applied by the First District
Court ofAppeals to Petitioner's Brac/yclaim, was not "adequate" to preclude federal
review because it frustrates the assertion of a federal right without significantly
advancing any important state policy. See generally, James v. Kentucky, 466 U. S. 341,
343-44 (1984); Staubv. City of Baxley, 355 U. S. 313, 320 (1958); Brown v. Western
Ry. of Ala., 338 U. S. 294, 295 (1949); Hoffman v. Arave, 236 F. 3d 523, 531 (9th Cir.
2001). Forthe same reasons explained herein, the Court need not determine the
"adequateness" of O. R. C. § 2953. 23.
Case No. 1:10-cv-698
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Section 2953. 23, as it was applied to Petitioner's Claim Three, is independent of
federal law.
IV.
CONCLUSION
For the foregoing reasons, the Court concludes that Section 2953. 23 is not
independent of federal law and does not procedurally default Brady claims that
were dismissed by the Ohio state courts after the Supreme Court of Ohio
decided Bethel. Because any putative procedural default of claims dismissed
before Bethel is excused through a meritorious Bracfy claim, the Court will not
decide whether Section 2953. 23, as applied to Petitioner's Brady claim before
Bethel was decided, is independent of federal law.
IT IS SO ORDERED.
MICHAEL H. W
SON, JUDGE
UNITED STATES DISTRICT COURT
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