Kaeding v. Warden, Lebanon Correctional Institution

Filing 70

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTION TO EXPAND THE RECORD - Objections to R&R due by 1/31/2014. Signed by Magistrate Judge Michael R Merz on 1/14/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI

MARK H. KAEDING,
:
Petitioner,

Case No. 1:11-cv-121
:

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

-vsWARDEN, Lebanon Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON
MOTION TO EXPAND THE RECORD
This habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 68) to the
Magistrate Judge’s Report and Recommendations on Motion to Expand the Record (the “Report,”
Doc. No. 67). Upon initial consideration of the Objections, District Judge Barrett has ordered the
Motion to Expand recommitted to the Magistrate Judge for further analysis (Doc. No. 69).
The Motion to Expand seeks to have this Court order the Hamilton County Common Pleas
Court to have the grand jury proceedings in this case transcribed and filed here as part of the
record. Kaeding’s theory is that the prosecutor did not present certain exculpatory evidence to the
grand jury which, if the grand jury had seen it, they would never have indicted.
The Magistrate Judge recommended denying the Motion to Expand as moot because this
Court has already entered judgment dismissing the Petition with prejudice.

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Assuming the Court reaches the merits of the Motion, Kaeding says the transcript will
show the Complaints initially charging Kaeding in the Hamilton County Municipal Court (PageID
2122 and 2123) were not presented to the grand jury. Kaeding argues the prosecutor had a
constitutional duty to present exculpatory evidence to the grand jury and if he did not, “it is logical
to conclude” he also violated his duty under Brady v. Maryland to provide them to defense
counsel. These Complaints are said to be exculpatory because they alleged sexual conduct with
the minor victim on two dates in 2002 when Kaeding was in prison; the charge in the Indictment is
for a date in 2003.
The Report concluded the Complaints were not Brady material because they were on file in
the Hamilton County Common Pleas Court and therefore readily available to Kaeding’s counsel to
use in cross-examining the victim (Report, Doc. No. 67, PageID 2132). Kaeding makes no
objection on this point.
The Magistrate Judge opined the prosecutor had no duty to present these Complaints to the
grand jury, distinguishing the case on which Kaeding relies, United States v. Ciambrone, 601 F.2d
616 (2nd Cir. 1979). Kaeding objects that Ciambrone stands for the proposition that a prosecutor
may not obtain an indictment on evidence known to him to be perjurious (Objections, Doc. No.
68). Kaeding’s point is that the prosecutor knew the day before the indictment that the dates in
the Complaints were wrong. But the prosecutor did not obtain an indictment on the basis of those
wrong dates1. Instead, he obtained an indictment for the date in 2003. In other words, once he
was told that the 2002 dates were wrong, he did not present that “false” evidence to the grand jury.

1 Kaeding repeatedly refers to the Complaints as “perjurious.” The Complaints were sworn to on June 30, 2005, and
not immediately after the criminal misconduct occurred. The dates may easily have been mistaken rather than
perjurious.

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As further proof of the prosecutor’s misconduct, Kaeding notes that Judge Norbert Nadel
recused himself the day after the conference in chambers over the incorrect dates. Kaeding
admits that Judge Nadel gave no reason for his recusal, but Kaeding argues his recusal the very
next day is too much of a coincidence to have been based on anything else (Objections, Doc. No.
67, PageID 2141). He admits he has no “concrete proof” and that his many requests to Judge
Nadel “have been ignored.” Id. Kaeding says if we don’t believe him, we should just call Judge
Nadel and ask him why he recused himself. Id. at PageID 2141-42. That request is denied.
Judges are under no duty to explain recusals and the notion that Judge Nadel recused himself out of
upset with the prosecutor’s conduct is purely speculative.
Finally, Kaeding argued consideration of the grand jury transcript is not barred by Cullen v.
Pinholster, 563 U.S. ___, 131 S.Ct. 1388 (2011), because it was part of the state court record on
appeal. The Report noted Kaeding had offered no proof of this claim. Kaeding objects “Why
would they not have been?” (Objections, Doc. No. 68, PageID 2142.) The answer is, contrary to
what Kaeding assumes, that grand jury proceedings, which are secret, are rarely transcribed for
purposes of appeal because they almost never form a part of the evidence on any assignment of
error. What counts on appeal is the evidence at trial, not what was submitted to the grand jury.
In his Objections, Kaeding also chides the Magistrate Judge for not deciding his renewed
requests for all the other motions to expand the record previously made. All such motions have
previously been ruled on and will not be reconsidered at this point, judgment having already been
entered.
January 14, 2014.
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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