Smith v. Warden of Toledo Correctional Institution

Filing 125

DECISION AND ENTRY adopting the Report and Recommendation of the United States Magistrate Judge (Doc. 115 ) as modified herein. Signed by Judge Timothy S. Black on 4/9/2020. (rrs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
CHRISTOPHER SMITH,
Petitioner,
vs.
WARDEN, Toledo Correctional
Institution,
Respondent.

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Case No. 1:12-cv-425
Judge Timothy S. Black
Magistrate Judge Michael R. Merz

DECISION AND ENTRY ADOPTING
THE REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE (Doc. 115)
AS MODIFIED HEREIN
This case is before the Court pursuant to the Order of General Reference to United
States Magistrate Judge Michael R. Merz.
Pursuant to such reference, the Magistrate Judge reviewed the pleadings and, on
November 7, 2019, issued a Report and Recommendation, recommending that this Court
issue a conditional writ of habeas corpus as to Petitioner Christopher Smith
(“Petitioner”). (Doc. 115).
On November 20, 2019, Respondent filed objections to the Report and
Recommendation. (Doc. 116). And, on November 26, 2019, Petitioner filed a response
in opposition to the objections. (Doc. 117). The Court also has before it the relevant trial
court documents relating to Petitioner’s criminal conviction.1

1

The transcripts of the state trial proceedings are filed on the docket of this case at Doc. 12-2
through 12-12. Additionally, the state court record is filed on the docket of this case at Doc. 75.

I. BACKGROUND2
A. State Trial Proceedings
In 2007, the Hamilton County Grand Jury returned an indictment, charging
Petitioner with the following offenses: aggravated robbery in violation of Ohio Revised
Code § 2911.01(A)(1) with specifications (Count 1); robbery in violation of Ohio
Revised Code § 2911.02(A)(2) (Count 2); and having weapons while under disability in
violation of Ohio Revised Code § 2923.13(A)(2) (Count 3). (Doc. 75 at 7–10).
In 2008, Petitioner’s case proceeded to a bench trial, conducted by Judge Robert P.
Ruehlman.3 (See Doc. 12-2). At the bench trial, evidence was presented that, on October
17, 2007, an armed robber, wearing sunglasses, a facemask, and a wig, took $700 to $800
from a wireless telephone store in Cincinnati, Ohio. (Doc. 12-3 at 10–14, 28–32, 36).
Evidence was also presented that, after the robbery was complete, the robber ran to a
Ford Expedition, parked at a nearby apartment complex, and climbed into the passenger
seat. (Id. at 49–52).
Two eyewitnesses identified Petitioner as the alleged robber.
The first eyewitness was an individual named Thomas Moore (“Moore”). (Id. at
46). Moore testified that he noticed the robbery in progress while passing by the wireless
telephone store, and that he followed the Ford Expedition from the nearby apartment
complex. (Id. at 47–52, 62–65). Moore further testified that he saw Petitioner in the

Smith v. Warden, Toledo Corr. Inst., 780 F. App’x 208 (6th Cir. 2019), contains a full recitation
of the facts applicable to this case. This Court incorporates those facts herein by reference.
2

3

Petitioner waived his right to a jury trial. (Doc. 75 at 40).

2

passenger side of the vehicle while in pursuit. (Id. at 62–67, 72–77). Moore testified that
he called 911 while the robbery was ongoing to provide the police with a partial license
plate number. (Id. at 77–78).
The second eyewitness was an individual named Charles Allen (“Allen”).4 (Doc.
12-8 at 2). Allen testified that he rode with Petitioner to the nearby apartment complex,
unaware of Petitioner’s alleged intent to rob the wireless telephone store, then waited in
the Ford Expedition while Petitioner made a “phone call.” (Id. a 26–27, 77–78). Allen
further testified that, after about five minutes, Petitioner ran back to the car, and told
Allen to “drive, drive.” (Id. at 26–29). Allen testified that he obliged (i.e., drove), then
left Petitioner and the vehicle at a different apartment complex.5 (Id. at 26–29, 37–38).
The State also proffered the testimony of Tracy Sundermeier (“Sundermeier”), a
serologist employed by the Hamilton County Coroner’s Crime Laboratory, who
presented a DNA lab report at the bench trial. (Doc. 12-4 at 9–10, 14). Sundermeier
testified that she had swabbed a wig found near the Ford Expedition; had created a profile
from the DNA recovered; and had compared the DNA profile created to Petitioner’s and
Allen’s DNA. (Id. at 27, 45–46). Further, Sundermeier testified that, based on her
analysis: Petitioner was excluded from the DNA profile; Allen could not be excluded
from the DNA profile; and the portion of the population that could not be excluded from

4

In exchange for his testimony, the State promised Allen that he would not be prosecuted for this
crime. (Doc. 12-8 at 2–3).
The Ford Expedition was later determined to belong to Petitioner’s girlfriend, and the
apartment complex at which it was left, along with the wireless telephone store, were in the
vicinity of Petitioner’s home. (Doc. 12-3 at 96–99, 155–62).
5

3

the DNA profile was 1 in 3.44 million. (Id. at 45–46). In other words, Sundermeier
testified that, based on her analysis, while Petitioner’s DNA was not on the wig, in all
likelihood, Allen’s was.6 (See id. at 45–49).
Petitioner maintained his innocence throughout the criminal proceedings,
including the bench trial. (See Doc. 12-9 at 95–96). At trial, the defense’s position was
that Petitioner was not involved in the robbery and that Allen was in fact the robber. (Id.
at 21–27, 75–76, 88). Indeed, Petitioner asked the State to “run the [DNA] test” in an
effort to prove that he played no part in the crime. (Id. at 29–30).
At the conclusion of the bench trial, the state trial court commented on the DNA
evidence presented by Sundermeier as follows:
[W]hen you touch something, sometimes your cells come off,
sometimes they don’t, you know, sometimes—I don’t have a
problem with the fact that [Petitioner] put the wig on but his
DNA was not found on it but [] Allen’s was, because he was in
the car, too, he touched it also.
(Id. at 91).
After commenting on the DNA evidence, and notwithstanding the defense’s
theory that Allen, rather than Petitioner, was the real culprit, the state trial court found
Petitioner guilty on all counts, and sentenced Petitioner to 26 years in prison. (Id. at 118–
19). The state trial court asserted that, when Moore’s testimony, Allen’s testimony, and

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Sundermeier also tested a t-shirt and sunglasses, both of which were found with the wig, at the
apartment complex where the Ford Expedition was left. (Doc. 12-4 at 20, 28). Sundermeier
obtained a DNA profile from the t-shirt. (Id. at 19–20). Petitioner was excluded from the DNA
profile; Allen could not be excluded from the DNA profile. (Id.) Sundermeier claimed that she
could not recover any DNA from the sunglasses. (Id. at 28).

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the DNA results were considered cumulatively, all the evidence “add[ed] up to one
thing[—]that [Petitioner] did in fact commit this offense.” (Id. at 92).
B. State Post-trial Proceedings
After the conclusion of the bench trial, the State disclosed new evidence to
Petitioner: the laboratory notes underlying Sundermeier’s DNA testing. (Doc. 75 at 93).
Upon receipt of the laboratory notes, Petitioner moved for a new trial under Ohio Rule of
Criminal Procedure 33.7 (Doc. 75 at 92–96). In his new trial motion, Petitioner
explained that, while the State had disclosed Sundermeier’s laboratory report to Petitioner
prior to trial, the State had failed to disclose Sundermeier’s laboratory notes to Petitioner
prior to trial. (See id.). And Petitioner argued that, by failing to so disclose the
laboratory notes, the State had withheld material evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). (Doc. 75 at 92–96). Petitioner also sought relief on
various other grounds. (Id. at 54–78).
On August 11, 2009, the state trial court held a hearing on Petitioner’s new trial
motion. (Doc. 12-11). Dr. Julie Heinig (“Dr. Heinig”), a DNA expert, testified for
Petitioner. (Id. at 3). Dr. Heinig explained that, while the laboratory report was
sufficient to show the type of DNA on the wig, the laboratory notes were necessary to
determine the amount of DNA on the wig. (Id. at 6–10, 32–34, 39–40). Dr. Heinig
explained that, only by reviewing the laboratory notes, was she able to determine that

7

To be precise, Petitioner moved to supplement a previous motion for a new trial under Ohio
Rule of Criminal Procedure 33. (Doc. 75 at 54, 93).

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alleles consistent with Allen’s DNA were present at almost every locus tested on the
wig.8 (Id. at 15).
Dr. Heinig testified that the amount of DNA found on the wig was likely not
consistent with Allen briefly touching the wig, but actually wearing it. (Id. at 17–18, 32–
34). And Dr. Heinig asserted that, while it was possible that Petitioner had worn the wig
without leaving behind DNA, and while it was possible that someone else’s DNA had
“masked” Petitioner’s DNA (such as in a “quick touch situation”), the longer someone
wears an item, the more likely it is that he/she will deposit identifiable DNA. (Id. at 23–
27, 37–38, 47).
At the end of the new trial hearing, Petitioner’s counsel presented an extensive
oral argument, citing both Dr. Heinig’s testimony and analogous cases, which focused
“[f]irst, and most importantly” on Petitioner’s Brady claim. (Id. at 48–58). In response,
the state trial court presented the following thoughts:
[Y]ou might have an argument if you’re trying [the case] to a
jury, but you’re trying the case to me, and I’m also deciding
this motion for [a] new trial. I think I made it clear in my
findings initially that when I talked about this, I have no doubt
that both these guys were involved in this.
[. . .]
[I]t could very possibly be that [] Allen wore this outfit and had
this on numerous occasions on other robberies, or even that day
wore it and gave it to [Petitioner] to wear, that’s why he has a
8

In addition to examining the laboratory notes, Dr. Heinig conducted her own DNA testing of
the wig, t-shirt, and sunglasses. (Doc. 12-11 at 10–11). Dr. Heinig’s DNA testing largely
aligned with Sundermeier’s. (See id.). However, unlike Sundermeier, Dr. Heinig was able to
obtain a DNA profile from the sunglasses. (Id. at 21). Petitioner was excluded from that DNA
profile; Allen was not. (Id.)

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heavy presence of DNA on it, and that would mask
[Petitioner’s] DNA when he wore it.
(Id. at 58–59, 61).
The state trial court then informed the parties that it needed “a couple weeks to
look this [all] over” and adjourned the hearing on Petitioner’s new trial motion. (Id. at
64, 68). Subsequently, on September 10, 2009, the state trial court denied Petitioner’s
new trial motion in a written entry stating in full as follows: “The defendant’s Rule 33
motion for New Trial is hereby denied.” (Doc. 75 at 102).
On September 15, 2009, Petitioner filed a notice of direct appeal to the First
District Court of Appeals (the “First District”). (Id. at 103). Petitioner’s direct appeal did
not include any reference to the alleged Brady violation. (Id. at 104–23). On review, the
First District affirmed the state trial court’s judgment but remanded for resentencing. (Id.
at 146–51).
On August 3, 2010, Petitioner filed a Rule 26(B) application to reopen his direct
appeal. (Id. at 182). The Rule 26(B) application asserted that Petitioner’s appellate
counsel was ineffective for, inter alia, failing to raise on appeal the state trial court’s
rejection of Petitioner’s Brady claim, in its denial of Petitioner’s motion for a new trial.
(Id. at 182–92).
Thereafter, of February 7, 2011, the First District entered a decision, finding that
Petitioner had failed to present a colorable ineffective assistance of appellate counsel
claim. (Id. at 200–02). Specifically, the First District found that the state trial court had
not abused its discretion in denying Petitioner’s motion for a new trial and noted that,

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with regard to the Brady claim, the undisclosed laboratory notes “could not ‘reasonably
be taken to put the whole case in such a different light as to undermine confidence in the
verdict.’” (Id. at 201 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995))).
C. Federal Habeas Proceedings
While his state court proceedings were ongoing, Petitioner applied for a writ of
habeas corpus in this Court. (Doc. 1). Petitioner raised seven grounds for relief, only
two of which—Grounds I and VII—remain relevant to this Order. (Doc. 80 at 1–2). The
first ground asserted that the State had committed a Brady violation by failing to disclose
the laboratory notes to Petitioner prior to the commencement of the bench trial (“ground
one” or the “Brady claim”). (Id. at 1). The seventh ground asserted that Petitioner’s
appellate counsel had rendered ineffective assistance by failing to raise, inter alia, a
Brady claim on direct appeal (“ground seven” or the “IAAC claim”). (Id. at 2, 22).
On August 29, 2016, the Magistrate Judge issued a Report and Recommendation,
recommending that this Court dismiss Petitioner’s petition in its entirety. (Id. at 26). The
Magistrate Judge concluded that grounds one through six of Petitioner’s petition were
either procedurally defaulted or not cognizable. (See id. at 10–22). And the Magistrate
Judge concluded that, to the extent that it was not procedurally defaulted, ground seven of
Petitioner’s petition failed on the merits. (See id. at 22–26).
On February 8, 2017, this Court issued a Decision and Entry, adopting the Report
and Recommendation. (Doc. 85). However, the Court also issued a certificate of
appealability. (Doc. 98). With regard to ground one (the Brady claim), the certificate of
appealability encompassed “whether the Court was correct in finding a procedural
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default, whether the Court was correct in finding no excuse to the procedural default
exists, and whether the Court was correct in not considering the merits of this claim.”
(Id. at 13). With regard to ground seven (the IAAC claim), the certificate of appealability
also included “whether the Petition state[d] a valid claim for ineffective assistance of
appellate counsel.” (Id. at 17).
On March 10, 2017, Petitioner filed a notice of appeal with the United States
Court of Appeals for the Sixth Circuit. (Doc. 92). And thereafter, on June 18, 2019, the
Sixth Circuit issued an Opinion on Petitioner’s appeal. (Doc. 99).
In its Opinion, the Sixth Circuit concluded that grounds one through six of
Petitioner’s petition were procedurally defaulted. (Id. at 17). However, the Sixth Circuit
also concluded that ineffective assistance of appellate counsel excused the procedural
default with regard to ground one (the Brady claim). (Id. at 32).
In reaching this conclusion, the Sixth Circuit performed an initial analysis of
Petitioner’s Brady claim, and the Sixth Circuit concluded that Petitioner’s Brady claim
was “significant,” “obvious,” and material. (Id. at 30–32; see also id. at 31(“In a case
with stronger evidence, the suppressed evidence might not be enough to create a
reasonable probability of a different outcome. But, here, it is sufficient to undermine[]
confidence in the outcome of the trial.” (quotation marks and citation omitted)).
Moreover, the Sixth Circuit noted that, by denying Petitioner’s Brady arguments, posttrial, the state trial court likely “misapprehend[ed] and misappl[ied] Supreme Court
precedent.” (Id. at 30).

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After setting forth this analysis, the Sixth Circuit remanded the case to this Court
for a merits-based consideration of Petitioner’s Brady and IAAC claims. (Id. at 32, 35).
With regard to Petitioner’s Brady claim, the Sixth Circuit stated as follows:
We . . . remand [Petitioner]’s Brady claim to the district court
to consider on the merits. In so doing, the district court is first
required to determine whether this claim was “adjudicated on
the merits in [s]tate court proceedings.” 28 U.S.C. § 2254(d).
If it was, the district court must review the adjudication of this
claim under the deferential standard required by AEDPA. See
id.
(Id. at 32).
And, with regard to Petitioner’s IAAC claim, the Sixth Circuit stated as follows:
[Petitioner] made only the most barebone of arguments for why
he should prevail on th[e] [IAAC] claim on the merits. . . .
Because this issue was not adequately briefed before us and its
analysis will necessarily overlap with the analysis required for
the Brady claim, we remand the IAAC claim for the district
court to address in light of the above discussion.
(Id. at 34–35).
In short, the Sixth Circuit instructed this Court to engage in three points of inquiry
on remand: (A) a consideration of whether the state courts had adjudicated Petitioner’s
Brady claim on the merits; (B) a consideration of the merits of Petitioner’s Brady claim;
and (C) a consideration of the merits of Petitioner’s IAAC claim. (Id. at 32, 35).
On November 7, 2019, the Magistrate Judge issued a Report and
Recommendation, addressing each of the Sixth Circuit’s points of inquiry. (Doc. 115).
At the end of the Report and Recommendation, the Magistrate Judge recommended that
this Court issue a conditional writ of habeas corpus, requiring the State to release

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Petitioner unconditionally or retry Petitioner within six months of the date of judgment.
(Id. at 13).
Thereafter, on November 20, 2019 Respondent filed objections to the Report and
Recommendation. (Doc. 116). And, on November 26, 2019, Petitioner filed a response
in opposition to the objections. (Doc. 117). This case is now ripe for this Court’s review.
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs
habeas applications. 28 U.S.C. § 2254. A habeas application does not provide a
petitioner with an opportunity to retry his state court conviction in federal court. Herrera
v. Collins, 506 U.S. 390, 401–02 (1993). Instead, a habeas application provides a
petitioner with an opportunity to show that his state court conviction violates federal law.
28 U.S.C. § 2254(a).
If the claim set forth in the habeas application has already been adjudicated by the
state courts “on the merits,” then a highly deferential standard of review applies. 28
U.S.C. § 2554(d). As set forth in AEDPA, the district court can only grant habeas relief
if the state court conviction (1) unreasonably applied Supreme Court precedent; or
(2) turned on unreasonable factual findings. Stewart v. Trierweiler, 867 F.3d 633, 636
(6th Cir. 2017) (citing 28 U.S.C. § 2554(d)).
If, however, the claim set forth in the habeas petition has not been adjudicated by
the state court, “on the merits,” then a more plenary standard of review applies. Cone v.
Bell, 556 U.S. 449, 472 (2009). As set forth in Marion, the district court must review
questions of law under a de novo standard and questions of fact under a clear error
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standard. Marion v. Woods, 663 F. App’x 378, 381 (6th Cir. 2016) (citing Robinson v.
Howes, 663 F.3d 819, 823 (6th Cir. 2011)).
III. ANALYSIS
On review, this Court agrees, in large part, with the Magistrate Judge’s Report and
Recommendation and ultimate conclusions. (Doc. 115). For purposes of this Order, the
Court will analyze each of the Sixth Circuit’s points of inquiry. (Doc. 99). Thereafter,
this Court will address the remaining objections submitted by Respondent, as well as
whether it is appropriate to issue a conditional versus an unconditional writ of habeas
corpus. (Doc. 116).
A. Decision on the Merits
First, the Sixth Circuit instructed this Court to consider whether the state courts
adjudicated Petitioner’s Brady claim on the merits. (Doc. 99 at 32). This threshold
inquiry determines whether the deferential standard set forth in AEDPA will govern this
Court’s subsequent analysis. 28 U.S.C. § 2554(d); Marion, 663 F. App’x at 381.
In the Report and Recommendation, the Magistrate Judge concluded that the First
District’s February 7, 2011 decision did not adjudicate Petitioner’s Brady claim on the
merits. (Doc. 115 at 4–6). This Court concludes that, while the Magistrate Judge’s
thoughtful analysis of the First District’s February 7, 2011 decision is correct, there is
nonetheless more work to be done. (Id.) This is because, while the First District did not
decide Petitioner’s Brady claim on the merits, the state trial court did. (Doc. 75 at 102).
“When a federal claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated the claim on the merits
12

in the absence of any indication or state-law procedural principles to the contrary.”
Harrington v. Richter, 562 U.S. 86, 99 (2011) (citing Harris v. Reed, 489 U.S. 255, 265
(1989)); Richardson v. Palmer, 941 F.3d 838, 848 (6th Cir. 2019) (same). This
presumption applies regardless of whether the state court articulated the rationale
underlying its decision. Harrington, 562 U.S. at 98–99. But this “presumption may be
overcome when there is reason to think some other explanation for the state court’s
decision is more likely.” Id. at 99–100.
Here, the state trial court adjudicated Petitioner’s Brady claim on the merits.
Petitioner presented his Brady claim to the state trial court in a new trial motion.
(Doc. 75 at 92–96). Thereafter, the state trial court denied Petitioner’s Brady claim,
along with the rest of his new trial motion, in a September 10, 2009 decision. (Id. at
102). The September 10, 2009 decision does not explain why the state trial court denied
Petitioner’s Brady claim. (Id.) To the contrary, it states in full as follows: “The
defendant’s Rule 33 motion for New Trial is hereby denied.” (Id.) Nonetheless,
Supreme Court precedent requires this Court to presume that the state trial court denied
Petitioner’s Brady claim on the merits. Harrington, 562 U.S. at 99 (presuming that a
summary order constituted an adjudication on the merits for AEDPA purposes); Hynes v.
Birkett, 526 F. App’x 515, 519 (6th Cir. 2013) (same).
On this Court’s review, no evidence in the record overcomes the presumption set
forth in Harrington. 562 U.S. at 99. To the contrary, the new trial hearing, which took
place prior to the issuance of the September 10, 2009 decision, strongly indicates that a
merits-based decision occurred. At the new trial hearing, Petitioner’s counsel presented
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an extensive oral argument, focusing “most importantly” on Petitioner’s Brady claim.
(Doc. 12-11 at 48–58). After the oral argument, the state trial court addressed the merits
of the case, including the Brady claim, and told the parties that it needed “a couple weeks
to look this [all] over[.]” (Id. at 58–64). These proceedings therefore show that the
merits of Petitioner’s Brady claim, rather than its procedural nature, were at issue leading
up to the September 10, 2009 decision.9 (Doc. 75 at 102).
Based upon the foregoing, with regard to the Sixth Circuit’s first point of inquiry,
this Court concludes that the state courts adjudicated Petitioner’s Brady claim on the
merits.
B. Merits of the Brady Claim
Next, the Sixth Circuit instructed this Court to consider the merits of Petitioner’s
Brady claim. (Doc. 99 at 32). As the state courts—specifically, the state trial court—
adjudicated Petitioner’s Brady claim on the merits, the deferential standard set forth in
AEDPA governs this Court’s analysis of the same. 28 U.S.C. § 2554(d).
In the Report and Recommendation, the Magistrate Judge concluded that
Petitioner’s Brady claim was meritorious, and that habeas relief was appropriate. (Doc.
115 at 6–13). The Magistrate Judge reached this conclusion after noting that the Sixth

In his briefing on remand, Petitioner claims that this Court should analyze the First District’s
February 7, 2011 decision to determine whether the state courts have adjudicated Petitioner’s
Brady claim on the merits. (Doc. 102 at 1 n.1 (citing the “last explained decision” rule set forth
in Ylst v. Nunnemaker, 501 U.S. 797 (1991)). But this Court disagrees. As the Magistrate Judge
correctly noted in the Report and Recommendation, Petitioner’s Brady claim was not actually
before the First District in the February 7, 2011 decision—Petitioner’s IAAC claim was. (Doc.
115 at 4–6). Thus, it makes little sense to this Court to look to that decision to see whether a
merits-based adjudication of Petitioner’s Brady claim occurred.
9

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Circuit’s June 18, 2019 Opinion had effectively analyzed Petitioner’s Brady claim—
albeit in the context of an ineffective assistance of appellate counsel analysis. (Id.) Thus,
the Magistrate Judge adopted the Sixth Circuit’s conclusions as his own under the law of
the case doctrine. (Id.) On review, this Court agrees with the Magistrate Judge’s
ultimate conclusion. And, as set forth infra, this Court reaches that same ultimate
conclusion upon review of Petitioner’s Brady claim, even under the deferential standard
set forth in AEDPA.
In this case, Petitioner asserts that, while the State disclosed Sundermeier’s
laboratory report timely, the State failed to disclose Sundermeier’s laboratory notes until
after the bench trial concluded and Petitioner was convicted. (Doc. 75 at 92–96). And
Petitioner argues that, by failing to disclose the laboratory notes to Petitioner, the State
committed a Brady violation. (See id.).
On review, as explained infra, this Court agrees. In response to the Sixth Circuit’s
inquiry, the Court will first consider the merits of the Brady claim, then the Court will
consider the state trial court’s decision under the AEDPA standard.
1. Brady
Under Brady, the State’s failure to disclose “evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at
87. Disclosure of impeachment evidence, as well as exculpatory evidence, is required
under Brady. Bagley, 473 U.S. at 676. Further, “there are situations in which evidence is
obviously of such substantial value to the defense that elementary fairness requires it to
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be disclosed even without a specific request.” United States v. Agurs, 427 U.S. 97, 110
(1976).
As an initial matter, the Court finds that the State withheld material evidence from
Petitioner. Evidence is “material” when “there is a reasonable probability that, had the
evidence been disclosed, the result of the proceeding would have been different.” Cone,
556 U.S. at 469–70. A reasonable probability exists “when the government’s evidentiary
suppression ‘undermines confidence in the outcome of the trial.’” Kyles, 514 U.S. at 434
(quoting Bagley, 473 U.S. at 678).
Here, the laboratory notes were material to Petitioner’s case.
At the bench trial, the state trial court concluded that Petitioner, rather than Allen,
was the wig-clad robber who held up the wireless telephone store on October 17, 2007.
(Doc. 12-9 at 92). The state trial court reached this conclusion notwithstanding the fact
that, according to the laboratory report, DNA consistent with Allen, rather than
Petitioner, was on the wig. (Doc. 12-4. at 45–49). In rationalizing its verdict, the state
trial court stated as follows: “I don’t have a problem with the fact that [Petitioner] put the
wig on but his DNA was not found on it but [] Allen’s was, because [Allen] was in the
car, too, [Allen] touched [the wig] also.” (Doc. 12-9 at 91 (emphasis added)).
While the state court’s rationale may have been consistent with the evidence in the
laboratory report, the state court’s rationale falls apart when considered in light of the
evidence in the laboratory notes. Dr. Heinig’s testimony at the new trial hearing confirms
this point. Specifically, Dr. Heinig testified that, while the laboratory report was
sufficient to show the type of DNA on the wig, the laboratory notes were necessary to
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show the amount of DNA on the wig. (Doc. 12-11 at 6–10, 32–34, 39–40). Dr. Heinig
explained that, based on the laboratory notes, alleles consistent with Allen’s DNA were
present at almost every locus tested on the wig. (Id. at 15). And Dr. Heinig testified that,
when the amount, not just the type, of DNA on the wig was considered, it became clear
that Allen had most likely worn the wig, not just touched it. (Id. at 17–18, 32–34). This
evidence directly undercuts the rationale articulated by the state trial court at the bench
trial.
To be sure, the laboratory notes do not conclusively prove that Allen, rather than
Petitioner, wore the wig on the day of the robbery. Dr. Heinig, herself, testified that it
was possible for Petitioner to have worn the wig without leaving behind any identifiable
DNA. (Id. at 23–27, 37–38). But when the fact that DNA consistent with Allen was
heavily present on the wig, is considered together with the fact that DNA consistent with
Petitioner was completely absent from the same, a natural inference arises—that Allen,
rather than Petitioner, was the wig-clad robber who held up the wireless telephone store
on October 17, 2007. (See id. at 15, 17–18, 32–34; Doc. 12-4. at 45–49). Of course, this
natural inference strongly supports Defendant’s theory of the case: that Allen rather than
Petitioner committed the crime.10
The Court concludes that, had the laboratory notes been disclosed, there is a
reasonable probability that the result of the proceeding would have been different. Cone,

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And, of course, this natural inference gains even greater force when it is considered in light of
the fact that Petitioner was also excluded as a contributor to the DNA found on the t-shirt and
sunglasses, whereas Allen was not. (Doc. 12-4 at 20; Doc. 12-11 at 10–11, 21).

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556 U.S. at 469–70; see also Kyles, 514 U.S. at 434. Accordingly, the laboratory notes
constitute material evidence, and the State’s failure to disclose them pre-trial amounts to
a Brady violation.11
2. AEDPA
Having found that Petitioner’s Brady claim has merit, this Court must still
consider whether the state trial court’s rejection of the same survives the highly
deferential standard set forth in the AEDPA. Harrington, 562 U.S. at 105. A federal
court can only grant habeas relief under the AEDPA if the state court conviction:
(1) unreasonably applied Supreme Court precedent; or (2) turned on unreasonable factual
findings. Stewart, 867 F.3d at 636 (citing 28 U.S.C. § 2554(d)).
Here, the state trial court unreasonably applied both law and facts.12
As an initial matter, based on the transcript of the new trial hearing, the state trial
court misapplied Brady. (See Doc. 12-11). At the new trial hearing, Petitioner’s counsel
presented an extensive oral argument, focusing “most importantly” on Petitioner’s Brady
claim. (Id. at 48–58). In response, the state trial court stated as follows: “[Y]ou might
have an argument if you’re trying [the case] to a jury, but you’re trying the case to me,

11

Were this Court reviewing the Brady claim under a de novo standard, the Court’s
consideration would end here, having found that a meritorious Brady claim exists. Thus, even if
this Court should have considered the First District’s decision—which did not adjudicate the
Brady claim on the merits (see Doc. 115 at 4-6)—Petitioner would still prevail.
As the state trial court rejected Petitioner’s Brady claim in a summary entry (Doc. 75 at 102),
the state trial court’s comments at the new trial hearing present the sole explanation of the
rationale underlying its decision. (Doc. 12-11 at 58–59, 61); cf. Harrington, 562 U.S. at 102
(confirming that, “[u]nder § 2254(d), a habeas court must determine what arguments or theories
supported or, as here, could have supported, the state court’s decision” (emphasis added)).
12

18

and I’m also deciding this motion for [a] new trial. . . . I have no doubt that both these
guys were involved in this.” (Id. at 58–59). In other words, the state trial court indicated
that, while an average juror might find the withheld evidence material, the presiding
judge was not persuaded. (See id.).
But Brady does not ask whether the withheld evidence persuades a particular
judge; it asks whether “there is a reasonable probability that, had the [withheld] evidence
been disclosed, the result of the proceeding would have been different.” Cone, 556 U.S.
at 469–70. And whether such a reasonable probability exists does “not depend on the
idiosyncrasies of the particular decisionmaker . . . .” Strickland v. Washington, 466 U.S.
668, 695 (1984) (elaborating on Brady standard) (emphasis added). Moreover, “[a]
reasonable probability does not mean that the defendant ‘would more likely than not have
received a different verdict with the evidence,’ only that the likelihood of a different
result is great enough to ‘undermine[ ] confidence in the outcome of the trial.’” Smith v.
Cain, 565 U.S. 73, 75–76 (2012) (quoting Kyles, 514 U.S. at 434).
Here, the state trial court expressly admitted that the withheld evidence might have
been sufficient to result in a different outcome before a jury. Nonetheless, the state trial
court judge denied Petitioner a new trial, on the basis that the withheld evidence did not
personally persuade him. By analyzing Petitioner’s Brady claim under a subjective rather
than an objective standard, the state trial judge misapplied federal law on Petitioner’s
post-conviction Brady claim. This finding alone warrants habeas relief.
Additionally, however, based on transcript of the new trial hearing, the state trial
court’s decision relied on facts that were not in evidence. At the new trial hearing, Dr.
19

Heinig testified that, according to the laboratory notes, alleles consistent with Allen’s
DNA were heavily present on the wig, and that, based on this heavy presence, Allen had
likely worn the wig, rather than merely touched it. (Id. at 15, 17–18, 32–34). In order to
square this testimony with its previous theory of liability—that Petitioner had actually
worn the wig and Allen had merely touched the wig on the day of the robbery—the state
trial court mused as follows: “[I]t could very possibly be that [] Allen wore this outfit . . .
on other robberies . . . , that’s why [Allen] has a heavy presence of DNA on it, and that
would mask [Petitioner’s] DNA when he wore it.” (Doc. 12-11 at 61).
To be sure, Dr. Heinig testified that it is possible for one’s DNA to mask
another’s—for instance in a “quick touch situation.” (Id. at 24–27, 37–38, 47). Thus, in
theory, Allen’s use of the wig on prior robberies could explain both a heavy presence of
Allen’s DNA and could possibly account for the complete absence of Petitioner’s DNA.
But the problem is that no testimony was presented at the bench trial that Allen had worn
the wig on previous occasions. By assuming the opposite, the trial court unreasonably
relied on facts not in evidence. Thus, the state trial court’s rejection of Petitioner’s Brady
claim was unreasonable under the AEDPA standard.
3. Relief
Based upon the foregoing, with regard to the Sixth Circuit’s second point of
inquiry, this Court concludes that, upon an analysis of the merits of Petitioner’s Brady
claim, habeas relief is appropriate.

20

C. Merits of the IAAC Claim
Finally, the Sixth Circuit instructed this Court to consider the merits of Petitioner’s
IAAC claim. (Doc. 99 at 35).
With regard to this final point of inquiry, the Magistrate Judge concluded that it
was not necessary to reach the merits of both Petitioner’s Brady claim and Petitioner’s
IAAC claim:
The remedy for the Brady violation will be the issuance of a
conditional writ of habeas corpus. In obedience to that writ,
the State will either release [Petitioner] or retry and reconvict
him. In either even[t], the judgment of conviction will be
vacated. Whether it is replaced with an unconditional release
or a new judgment of conviction which will then be appealable,
the question of whether [Petitioner] received ineffective
assistance of appellate counsel on his first direct appeal will be
moot.
(Doc. 115 at 12–13).
In other words, the Magistrate Judge concluded that, as the remedy for the State’s
Brady violation is a writ of habeas corpus, and as a writ of habeas corpus will invalidate
Petitioner’s prior conviction, it is not necessary to determine whether, on appeal from that
prior conviction, Petitioner’s appellate counsel was ineffective. (See id.). On review, this
Court completely agrees with the Magistrate Judge’s conclusion. See also Wearry v.
Cain, 136 S. Ct. 1002, 1006 (2016) (“Because we conclude that the Louisiana courts’
denial of Wearry’s Brady claim runs up against settled constitutional principles, and
because a new trial is required as a result, we need not and do not consider the merits of
his ineffective-assistance-of-counsel claim.”).

21

D. Respondent’s Remaining Objections
Most of Respondent’s objections deal with the fact that the Magistrate Judge relied
on the Sixth Circuit’s June 18, 2019 Opinion and on the law of the case doctrine, as
opposed to conducting his own review, in determining whether Petitioner’s Brady claim
was meritorious. (Doc. 116 at 1 (claiming that the Magistrate Judge did not perform the
analysis required by the Sixth Circuit on remand); id. at 5 (claiming that it would be
“manifestly unjust” to apply the law of the case doctrine in this case)). However, as this
Court has conducted a thorough review of Petitioner’s Brady claim, and as this Court has
reached the same conclusion as the Magistrate Judge (and the Sixth Circuit, for that
matter), these objections are now moot.
Respondent does raise three other objections. (See id.). However, as set forth
infra, the Court does not find any of them persuasive.
First, Respondent argues that the laboratory notes are neither exculpatory nor
impeachment evidence under the standard set forth in Brady. (Id. at 2, 6–10). More
specifically, Respondent claims that neither the laboratory notes nor Dr. Heinig’s
testimony supports Petitioner’s theory of the case: “that Allen and not [Petitioner] wore
an incriminating wig to commit the offenses.” (Id. at 2).
But this Court disagrees. As an initial mater, this Court has already concluded that
both the laboratory notes and Dr. Heinig’s testimony support Petitioner’s theory of the
case for the reasons set forth in section III.B.1, supra. And, to the extent that Respondent
suggests that the laboratory notes and Dr. Heinig’s testimony must prove that Petitioner is
innocent to qualify as Brady material, Respondent misconstrues the Brady standard. See
22

Kyles, 514 U.S. at 434 (stating that the Brady standard “does not require demonstration
by a preponderance that disclosure of the suppressed evidence would have resulted
ultimately in the defendant’s acquittal” (citing Bagley, 473 U.S. at 682)).
Second, Respondent argues that the First District has already adjudicated
Petitioner’s Brady claim in its February 7, 2011 decision and found that the undisclosed
evidence was not material. (Doc. 116 at 3, 5). Respondent points to the portion of the
First District’s decision, which states that the undisclosed laboratory notes “could not
‘reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.’” (Id.; Doc. 75 at 201 (quoting Kyles, 514 U.S. at 435)).
However, as properly set forth in the Report and Recommendation, while the First
District considered the Brady issue in the resolving the IAAC claim, the First District did
not actually render a decision on Petitioner’s Brady claim. (Accord Doc. 115 at 4–6).
Indeed, as the Sixth Circuit has already noted in the context of this case: “that a state
court [has] in fact rejected an IAAC claim brought under Rule 26(B) as meritless is not
dispositive of [the merits of the underlying claim].” (Doc. 99 at 28).
Thus, as set forth in Section III.A, supra, the state trial court’s decision (not the
First District’s) is before this Court for AEDPA review. And as set forth in Section III.B,
supra, the state trial court unreasonably applied the law/facts while adjudicating
Petitioner’s Brady claim. Accordingly, Petitioner is entitled to habeas relief—regardless
of the statements, made by the First District, in passing, while adjudicating the IAAC
claim.

23

Finally, Respondent claims that, based on the Sixth Circuit’s remand instructions,
this Court must conduct a review of Petitioner’s IAAC claim as well as Petitioner’s
Brady claim. (Doc. 116 at 2–5). And, in the course of its argument, Respondent makes
the rather cryptic statement that “this petition [cannot] be decided without reviewing the
Brady claim in the context of the [IAAC claim].” (Id. at 5).
This Court disagrees. To be sure, the Sixth Circuit remanded the case to this
Court for a consideration of the merit of Petitioner’s Brady and IAAC claims. (Doc. 99
at 32, 35). However, Petitioner’s Brady and IAAC claims are two separate grounds,
which offer two separate remedies. As Petitioner has prevailed on the first ground (the
Brady claim), there is no need to consider the merits of the seventh ground (the IAAC
claim), because the relief provided for in the first ground (a writ of habeas corpus with
the possibility of retrial), is superior to and entirely moots the relief provided for in the
seventh ground (a writ of habeas corpus unless the State reopens the appeal). (Accord
Doc. 115 at 12–13); Wearry, 136 S. Ct. at 1006 (declining to consider an ineffectiveassistance-of-counsel claim where the petitioner had already prevailed on a Brady claim
and was therefore entitled to a new trial). Thus, requiring this Court to reach a
determination as to whether Petitioner would also prevail on the IAAC claim would serve
no added purpose.13

It bears noting that this Court’s resolution of the Brady claim would drive any merits-based
decision as to the IAAC claim. See Goff v. Bagley, 601 F.3d 445, 466–67 (6th Cir. 2010)
(holding that the Supreme Court of Ohio’s conclusion that appellate counsel was not ineffective
for failing to raise “an obviously winning claim” on direct appeal was “an unreasonable
application of federal law”).
13

24

E. Conditional v. Unconditional Writ of Habeas Corpus
Having determined that a writ of habeas corpus is required, the Court must
consider whether to issue the writ conditionally or unconditionally.
By its terms, § 2254 empowers the district court to achieve a
single end: to terminate the petitioner’s unconstitutional
custody. A district court can achieve that end by granting an
absolute [i.e., unconditional] writ, which itself vacates the
unconstitutional judgment and orders the petitioner
immediately released. Satterlee v. Wolfenbarger, 453 F.3d
362, 370 (6th Cir. 2006). Or, as an “accommodation[]” to the
state, the court can grant a conditional writ, which requires the
state either to vacate the unconstitutional judgment or to
replace it with a constitutional one (by retrying him) within a
certain period of time. Id. at 369.
Gillispie v. Warden, London Corr. Inst., 771 F.3d 323, 329 (6th Cir. 2014).
To be clear, the issuance of a writ, whether conditional or not, does not bar reprosecution absent “extraordinary circumstances, such as when the state inexcusably,
repeatedly, or otherwise abusively fails to act within the prescribed time period or if the
state’s delay is likely to prejudice the petitioner’s ability to mount a defense at trial . . . .”
Satterlee, 453 F.3d at 370 (quotation marks and citation omitted); Eddleman v. McKee,
586 F.3d 409, 413 (6th Cir. 2009) (“The power to ‘release’ a prisoner under § 2254
normally is not a power to release him forever from the underlying charge. It is the
power, instead, only to release him from custody pursuant to the unconstitutional
judgment.”). Rather, the issuance of a conditional writ serves to “delay the release of a
successful habeas petitioner in order to provide the State an opportunity to correct the
constitutional violation found by the court.” Hilton v. Braunskill, 481 U.S. 770, 775
(1987) (emphasis added).
25

District courts generally favor conditional writs of habeas corpus out of a “concern
for comity among the co-equal sovereigns.” Gentry v. Deuth, 456 F.3d 687, 692 (6th Cir.
2006). Nevertheless, “federal courts have been given broad discretion in fashioning
[habeas corpus] relief.” Id. at 696 (quotation marks and citation omitted); see also Irvin
v. Dowd, 366 U.S. 717, 728–29 (1961). Indeed, “[f]ederal courts are authorized, under
28 U.S.C. § 2243, to dispose of habeas corpus matters ‘as law and justice require.’”
Hilton, 481 U.S. at 775 (emphasis added).
Here, the Magistrate Judge recommended that this Court issue a conditional writ
of habeas corpus, requiring the State to retry Petitioner within six months of the date of
judgment, or otherwise release Petitioner unconditionally. (Doc. 115 at 13). At the time
the Magistrate issued the Report and Recommendation, the proposed remedy was entirely
appropriate. (Accord Doc. 99 at 35 n.5 (citing the same remedy)).
However, after the Magistrate Judge issued the Report and Recommendation, an
unprecedented situation enveloped the country. The United States fell victim to the
COVID-19 pandemic.
On April 4, 2020, Petitioner filed a notice informing this Court that a staff member
at the Toledo Correctional Institution (“TCI”)—the correctional facility in which
Petitioner is housed—has recently tested positive for COVID-19 (the “Notice”). (Doc.
122 at 1). In the Notice, Petitioner states that he has a preexisting condition which
renders him particularly susceptible to becoming critically ill from COVID-19. (Id. at 2).
Thus, Petitioner asserts that, given his particular vulnerability to serious illness, as well as

26

“the compelling nature of his case,” his continued detention, “is not in the interests of
justice, health, or safety . . . .” (Id. at 3).
Upon receipt of Petitioner’s Notice, this Court issued a Notation Order, ordering
the parties to:
[C]onfer by telephone on the following issue: whether, if this
Court were to issue a conditional writ of habeas corpus as to
Petitioner, the parties could agree that, during the conditional
period, Petitioner would be released on the condition that he
remain on home incarceration (with any other appropriate
conditions or monitoring requirements), instead of remaining
detained at TCI.
(Not. Order, Apr. 6, 2020 (emphasis added)). The Notation Order specifically explained
that, “[s]uch a stipulation would allow the State of Ohio to have a full six-month period
(subject to reasonable extension if sought and granted by this Court) in which to
determine whether to retry Petitioner, while also affording Petitioner the benefit of a
custodial environment that would be conducive to his own health and safety during this
unprecedented pandemic.” (Id.)
The parties were given a deadline of April 8, 2020 at 12:00 p.m. by which to
complete the required telephone conference and apprise the Court as to whether some
agreement could be reached between the parties. (Id.)
On April 8, 2020 at 9:47 a.m., this Court received an email from Petitioner’s
counsel, stating that despite her many attempted calls and emails, Respondent’s counsel
had been unresponsive. In other words, notwithstanding this Court’s clear Notation
Order, Respondent’s counsel wholly failed to participate in the required telephone
conference. Regardless, Petitioner’s counsel offered the Court suggested bond
27

conditions, and alternative proposals by which the Court could release Petitioner with
appropriate bond restrictions.14
At 10:02 a.m.—i.e., within fifteen minutes of Petitioner’s counsel’s email—
Respondent’s counsel also submitted an email to the Court, stating merely that: “The
Warden will submit a response shortly.” Then, at 10:53 a.m., Respondent filed a written
response in opposition to Petitioner’s Notice (the “Response”). (Doc. 123). In the
Response, Respondent mischaracterized the Court’s Notation Order as “suggest[ing] that
the parties stipulate to the conditions of [Petitioner]’s release pending a decision on his
petition . . . .” (Id. at 1 (emphasis added)). Respondent further asserted that he could not
enter into such a stipulation, as to do so would be both unnecessary under the
circumstances and outside of his authority. (Id. at 4). Respondent also argued, inter alia:
that there have been no confirmed COVID-19 cases in TCI inmates; that TCI is taking
measures to ensure its inmates’ health; and that Petitioner would likely be safer at TCI
than on home incarceration. (See id.). At 11:05 a.m., Respondent sent the Court another
email reiterating the position proffered in the Response, i.e., that he was unable to enter

Petitioner’s counsel also suggested that, in absence of a stipulation between the parties, this
Court could consider Petitioner’s release in the context of a motion for bond (following
appropriate briefing). Based on this Court’s decision to issue an unconditional writ of habeas
corpus, infra, Petitioner’s suggestion is moot. Nonetheless, the Court will note that, having
considered the factors applicable to a motion for release on bond under Federal Rule of
Appellate Procedure 23, the Court concludes that Petitioner’s would very likely prevail on such a
motion, separate and apart from the analysis set forth infra. See O’Brien v. O’Laughlin, 557 U.S.
1301, 1302 (2009) (“There is a presumption of release pending appeal where a petitioner has
been granted habeas relief,” which can only be overcome if the party opposing release prevails
on the following factors: (1) whether the party opposing release has made a strong showing that
he is likely to succeed on the merits; (2) whether the party opposing release will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure the petitioner; and
(4) where the public interest lies. (citing Hilton, 481 U.S. at 774)).
14

28

into such a stipulation and that Petitioner’s “release is not necessary, and not legally
justified.”15
Finally, on April 8, 2020 at 12:00 p.m., Petitioner filed a reply in support of
Petitioner’s Notice (the “Reply”). (Doc. 124). In the Reply, Petitioner disputed
Respondent’s contentions regarding Petitioner’s safety at TCI, and asked this Court to
order Petitioner’s release from TCI within 24 hours. (See id.).
As the Court has decided that it is proper to issue a writ of habeas corpus as to
Petitioner (see Section III.B, supra), and as the parties have not been able to reach an
agreement as to home incarceration, this Court must now decide whether it is appropriate,
under the exigent circumstances posed by the COVID-19 pandemic, to issue a
conditional or an unconditional writ of habeas corpus.
Here, the Court concludes that the issuance of an unconditional writ of habeas
corpus is proper and wholly warranted. The COVID-19 pandemic presents a real and
substantial risk to the health and safety of every person, not just in Ohio or the United
States, but all over the world.16 And the threat is particularly significant—indeed,

Notably, neither Respondent’s filed response nor his emails to the Court fulfill the obligation
to abide by this Court’s duly entered Notation Order, which required the parties to confer by
telephone on whether, if this Court were to issue a conditional writ of habeas corpus, the parties
could agree that Petitioner would remain on home incarceration during the conditional period.
Respondent’s failure to abide by this Court’s Order could effectively be construed as a waiver of
any argument that the issuance of an unconditional, as opposed to a conditional, writ of habeas
corpus is appropriate. (Not. Order, Apr. 6, 2020). Nonetheless, given this Court’s ultimate
decision under the law, as set forth infra, the Court need not reach the waiver issue.
15

16

As of April 8, 2020, there were at least 1.4 million confirmed cases globally, with at least
86,000 deaths resulting—suggesting a fatality rate of approximately 6%. Coronavirus Map:
Tracking the Spread of the Outbreak, The New York Times (April 8, 2020), available at
https://www.nytimes.com/interactive/2020/world/coronavirus-maps.html (updated regularly).

29

critical—as to those individuals who suffer from preexisting conditions—including
Petitioner, who has hypertension.17 (Doc. 122 at 2). Indeed, Petitioner states that his
health results in him being “designated as a ‘critical care’ inmate at TCI, which means
that he is evaluated by medical staff at TCI twice a month.” (Id.)
While the Court appreciates that TCI is doing all it can to maintain the safety of all
inmates and staff, there is no question that any close-quartered environment, particularly
prisons, poses a significantly heightened risk for the spread of infectious diseases.18
For these reasons, the Court concludes that, under the unique circumstances of this
case, and pursuant to the Court’s broad discretion to “dispose of habeas matters ‘as law
and justice require,’” Petitioner’s unconditional release from custody is required. Gentry,
456 F.3d at 696 (quoting 28 U.S.C. § 2243).
In granting this relief, this Court by no means precludes the State from recharging
and retrying Petitioner in accordance with the applicable law.

17

See, e.g., New data on New York coronavirus deaths: Most had these underlying illnesses;
61% were men, USA Today, available at https://www.usatoday.com/story/news/health/
2020/04/07 new-york-coronavirus-deaths-data-shows-most-had-underlyingillnesses/2960151001/ (last updated April 7, 2020) (“The majority of New York’s more than
4,700 deaths due to coronavirus were among men, and 86% of all deaths were among people
who had underlying illnesses, such as hypertension and diabetes, new state data shows. . . . The
leading underlying illness was hypertension, which showed up in 55% of the deaths.”).
18

See, e.g., Prisons And Jails Change Policies To Address Coronavirus Threat Behind Bars,
NPR, available at https://www.npr.org/2020/03/23/818581064/prisons-and-jails-change-policiesto-address-coronavirus-threat-behind-bars (March 23, 2020) (stating that “jails and prisons are
considered perfect incubators for the coronavirus to potentially take hold”).

30

IV. CONCLUSION
As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
of the filings in this matter. Upon consideration of the foregoing, the Court finds that the
Report and Recommendation should be and is hereby adopted, subject to the
modifications stated herein.
Accordingly:
1.

Respondent’s Objections (Doc. 116) are OVERRULED;

2.

The Report and Recommendation (Doc. 115) is ADOPTED as modified,
supra; and

3.

The Court ISSUES an unconditional writ of habeas corpus, requiring the State
to immediately release Petitioner from custody, whereupon the State can
decide whether to retry Petitioner in accordance with applicable law.
IT IS SO ORDERED.

Date: April 9, 2020
Timothy S. Black
United States District Judge

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