Levingston v. Warden, Warren Correctional Institution
DECISION AND ENTRY ADOPTING THE SUPPLEMENTAL REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 41 ). Signed by Judge Timothy S. Black on 2/6/2017. (mr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 1:12-cv-724
Judge Timothy S. Black
Magistrate Judge Michael R. Merz
DECISION AND ENTRY
ADOPTING THE SUPPLEMENTAL REPORT AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 41)
This case is before the Court pursuant to the Order of General Reference in the
United States District Court for the Southern District of Ohio Western Division to United
States Magistrate Judge Michael R. Merz. Pursuant to such reference, the Magistrate
Judge reviewed the pleadings filed with this Court and, on November 6, 2015, submitted
a Report and Recommendations. (Doc. 36). Following Petitioner’s objections (Doc. 39),
this Court ordered the matter recommitted to the Magistrate Judge for a supplemental
Report and Recommendations. (Doc. 40). The Magistrate Judge submitted the
supplemental Report and Recommendations on January 7, 2016. (Doc. 41). Petitioner
filed objections to the supplemental Report and Recommendations on January 21, 2016.
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 does
determine that such Report and Recommendations should be and is hereby adopted in its
entirety (but for the recommended denial of a certificate of appealability).
The analysis in the supplemental Report and Recommendations speaks for itself—
the Court need not repeat the findings of the Magistrate Judge verbatim. However, the
Court will analyze the issues raised in Petitioner’s objections and outline why they are
Petitioner’s petition for writ of habeas corpus contains fourteen alleged grounds
for relief. (Doc. 1). The original Report and Recommendations recommended dismissal
of all grounds—grounds 1–4, 6–10, 13, and 14 for procedural default, and grounds 5, 11,
and 12 on the merits. (Doc. 36). The procedural default doctrine in habeas corpus is
described by the Supreme Court as follows:
In all cases in which a state prisoner has defaulted his federal claims in state
court pursuant to an adequate and independent state procedural rule, federal
habeas review of the claims is barred unless the prisoner can demonstrate
cause of the default and actual prejudice as a result of the alleged violation
of federal law; or demonstrate that failure to consider the claims will result
in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner does not dispute that the
claims identified by the Report and Recommendations were defaulted but claims those
defaults can be overcome in two ways. First, Plaintiff alleges he is actually innocent of
the crime for which he was convicted. Second, Petitioner alleges that cause and prejudice
exist for each defaulted claim such that the Court should evaluate them on their merits.
The supplemental Report and Recommendations reevaluated each of the alleged grounds
for relief in Petitioner’s petition for writ of habeas corpus and recommended dismissal of
the petition. For the reasons outlined below, the Court agrees.
A. Petitioner has not demonstrated “actual innocence” sufficient to overcome
Petitioner’s objections claim that his procedurally defaulted claims should be
evaluated on the merits because new evidence not presented at trial demonstrates he is
actually innocent of the murder for which he was convicted. Actual innocence can serve
as a “gateway” to avoid the bar of procedural default: “To be credible, such a claim
requires petitioner to support his allegations of constitutional error with new reliable
evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence – that was not presented at trial.” Schlup v. Delo,
513 U.S. 298, 324 (1995). “Because such evidence is obviously unavailable in the vast
majority of cases, claims of actual innocence are rarely successful.” Id. The Report and
Recommendations accurately cited Schlup’s holding that a district court involved in
deciding an actual innocence gateway claim will have to make credibility assessments
and should accept the actual innocence claim only if “in the light of the new evidence, no
reasonable juror would have found the defendant guilty.” Schlup, 513 U.S. at 329-30.
The new evidence presented by Petitioner in support of his actual innocence
argument is the revised testimony of Suriyah Dukes, who lived in the area in which the
murder in question occurred. Ms. Dukes initially told investigating police that she was
not a witness to the murder. However, two days after the jury returned a verdict against
Petitioner, Ms. Dukes signed an affidavit stating that her initial testimony was false.
(Doc. 10-1, at 70). This affidavit claimed that she had seen the perpetrator, and while she
could not identify that man, it was not Petitioner, whom Ms. Dukes had known since
The Report and Recommendations weighed this new affidavit against the evidence
used to convict Petitioner and determined that a reasonable juror still could have found
Petitioner to be guilty even had he or she heard Ms. Dukes testify as she did in the
affidavit. (Doc. 41, at 5). The Court agrees with this assessment. Ms. Dukes’ new
testimony, balanced against her inconsistent previous statements and the additional
testimony used to convict Petitioner, including the testimony of a prison informant who
testified that Petitioner admitted to the murder, is not sufficient to demonstrate actual
innocence as required to excuse procedural default.
B. Petitioner has failed to demonstrate the cause and prejudice necessary to
excuse any of his procedurally defaulted claims.
The supplemental Report and Recommendations found that Petitioner had failed to
demonstrate cause and prejudice as required to prevent procedural default of his untimely
filed claims. The Court agrees, and will accordingly address Petitioner’s objections to
each portion of the Report and Recommendations.
Petitioner argues that his procedurally defaulted claims were caused by ineffective
assistance of counsel, either at the trial level or appellate level (depending on the claim).
Petitioner further argues that, despite failing to preserve his claims of ineffective
assistance of counsel, those claims should be heard on the merits based on the Supreme
Court’s rulings in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133
S. Ct. 1911 (2013). The Supreme Court in Martinez held that, in states where claims of
ineffective assistance of trial counsel were required to be brought at a collateral review
hearing as opposed to on direct appeal, ineffective assistance of counsel at the collateral
review hearing could establish cause for procedural default of ineffective assistance of
trial counsel claims. In Trevino, the Supreme Court extended Martinez to the Texas postconviction system where a defendant is practically, but not legally, forced to present
ineffective assistance of trial counsel claims in a collateral attack.
The Report and Recommendations noted that the Sixth Circuit has not yet decided
whether Martinez and Trevino apply to the Ohio system of adjudicating ineffective
assistance of trial counsel claims (ECF No. 36, quoting McGuire v. Warden, 738 F. 3d
741, 751-52 (6th Cir. 2013)). Ohio requires ineffective assistance of trial counsel claims
that can be demonstrated from the trial record to be raised on direct appeal, while
ineffective assistance of trial counsel claims that rely on evidence outside the record on
direct appeal must be raised in a collateral petition for post-conviction relief.
Several of the counts in Petitioner’s 28 U.S.C. § 2254 petition are procedurally
defaulted regardless of whether Trevino applies to 28 U.S.C. § 2254 claims from Ohio
state convictions. The Sixth Circuit Court of Appeals has held that “[u]nder Martinez’s
unambiguous holding . . . ineffective assistance of post-conviction counsel cannot supply
cause for procedural default of a claim of ineffective assistance of appellate counsel.”
Hodges v. Colson, 727 F.3d 517, 531 (6th Cir. 2013) (emphasis added). Therefore, a
reviewing court “cannot apply the narrow Martinez exception to save [Petitioner] from
his default of an ineffective-assistance-of-appellate-counsel claim.” McClain v. Kelly,
631 F. App’x 422, 433 (6th Cir. 2015) (emphasis in original). Thus, in Ohio, claims of
ineffective assistance of appellate counsel must be preserved through a petition to reopen
an appeal as required by Ohio Rule of Appellate Procedure 26(B). Petitioner filed such a
petition, but failed to preserve certain claims of ineffective assistance of appellate
counsel; those claims are procedurally defaulted, and neither Martinez nor Trevino
excuse that default.
Certain grounds for relief in Petitioner’s petition for writ of habeas corpus were
based off alleged failures of trial counsel, and should Martinez and Trevino apply to the
Ohio post-conviction system, Petitioner’s procedural default of those claims may be
excusable based on alleged ineffective assistance of counsel at the collateral review stage.
However, the Court need not decide here in the first instance whether Martinez and
Trevino are applicable. As detailed in the following section, the issue is mooted by the
lack of demonstrated prejudice in those grounds that may arguably have demonstrated
adequate cause for default.
The “prejudice” prong of the “cause-and-prejudice” standard necessarily requires
a showing that had the defaulted claim been presented to the state court, relief should
have been awarded. This analysis is akin to a merits determination. Accordingly, the
supplemental Report and Recommendations evaluated the merits of each of Petitioner’s
14 grounds for relief and found them lacking. The Court agrees with the analysis of the
Report and Recommendations, and will address the arguments in Petitioner’s objections
a. Ground One
Petitioner’s first ground for relief was that trial counsel rendered ineffective
assistance of counsel by failing to learn of Suriyah Dukes’s changed testimony.
Petitioner’s objections claim that the supplemental Report and Recommendations was
incorrect in finding no prejudice on this ground, given that the Ohio “First District Court
of Appeals explicitly held that the existence of Ms. Dukes could have been discovered by
trial counsel through the use of due diligence.” (Doc. 42, at 6). Despite this fact, the
Court agrees with the finding in the supplemental Report and Recommendations that
Petitioner has not demonstrated prejudice. The impact of Ms. Dukes’ testimony was
examined in the previous section outlining Petitioner’s argument regarding actual
innocence, and as the Court explained there, the omission of that testimony was not
prejudicial. See supra Part II.A.
b. Ground Two
The supplemental Report and Recommendations also correctly identified no
prejudice from ground two of petitioner’s petition for habeas corpus, which focused on
trial counsel’s alleged failure to investigate Petitioner’s alibi that he was with his mother
at the time of the murder. As the Report and Recommendations explains, “[i]n his
untimely Petition for Post-Conviction Relief, Levingston included no evidentiary
materials to support this claim, neither an affidavit from Levingston about his supposed
communication with [trial counsel] nor any affidavit from the mother about what she
would have testified to.” (Doc. 41, at 8). Petitioner’s objections do not rebut this.
Accordingly, ground two of Petitioner’s petition is denied.
c. Ground Three
Petitioner’s third ground for relief was that appellate counsel was ineffective
because his appellate attorney “failed to pursue postconviction relief,” citing Gunner v.
Welch, 749 F.3d 511 (6th Cir. 2014). However, Gunner only requires an appellate
attorney to notify his or her client when the transcript is filed and the statute of limitations
on an Ohio Revised Code § 2953.21 petition begins to run. There is no allegation that
Petitioner’s appellate counsel failed to so notify petitioner. Accordingly, ground three of
Petitioner’s petition is denied.
d. Ground Four
Petitioner’s fourth ground for relief was that there was insufficient evidence to
sustain his conviction. The supplemental Report and Recommendations recommended
this claim be dismissed as defaulted because the claim was not preserved upon appeal to
the Supreme Court of Ohio. Petitioner argues in his objections that the rationale in
Gunner requires the Court to hold that appellate counsel is required to pursue all claims
“to the extent needed to constitute exhaustion,” which would include an appeal to the
Supreme Court of Ohio. (Doc. 42, at 8). This argument is without merit. The Sixth
Amendment’s guarantee of effective assistance of counsel only applies to proceedings in
which one is constitutionally entitled to counsel. The right to appointed counsel extends
to the first appeal of right and no further. Pennsylvania v. Finley, 481 U.S. 551, 555
(1987); Ross v. Moffitt, 417 U.S. 600 (1974). Accordingly, ground four of Petitioner’s
petition for writ of habeas corpus is denied.
e. Ground Five
Petitioner’s fifth ground for relief is a stand-alone claim on the basis of actual
innocence. Actual innocence is not recognized as the basis for a stand-alone habeas
claim. Petitioner acknowledges that McQuiggin v. Perkins, 133 S. Ct. 1924 (2013),
“does not, itself, recognize actual innocence as a standalone basis for habeas relief . . .
however, [it] demonstrate[s] that five justices of the Supreme Court are ready to so rule
when the question is squarely presented.” (Doc. 42, at 8). As Petitioner himself admits
that controlling law does not recognize this claim for habeas relief, the Court agrees with
the Magistrate Judge’s recommendation and denies this claim on the merits.
f. Grounds Six, Seven, Eight, and Nine
Grounds six and seven of Petitioner’s petition for writ of habeas corpus relate to
Petitioner’s claim that an unduly suggestive photographic identification was used in an
eyewitness identification. Grounds eight and nine of Petitioner’s habeas motion are
related to Petitioner’s accusation that he was unfairly denied a new trial. Each of these
grounds is admittedly procedurally defaulted for failure to raise them on appeal to the
Supreme Court of Ohio. However, as with ground four, Petitioner claims that Gunner
should be read to require appellate counsel to exhaust all claims to exhaustion. As
previously explained, Petitioner did not have a Constitutional guarantee of counsel for an
appeal to the Supreme Court of Ohio, so it was not ineffective assistance of counsel to
fail to preserve post-trial claims at that level. See supra II.B.2.d.
g. Ground Ten
Ground ten of Petitioner’s petition for habeas corpus alleges prosecutorial
misconduct at the trial level. This claim is procedurally defaulted, as Petitioner failed to
raise it on direct appeal. Petitioner argues that the procedural default was due to
ineffective assistance of counsel, and that the claim should accordingly be heard on the
merits. The supplemental Report and Recommendations recommends denying this
ground for relief, as Petitioner did not raise appellate counsel’s ineffectiveness in his
application to reopen his appeal as required by Ohio Rule of Appellate Procedure 26(B)
(petitioner filed the application, but did not include prosecutorial misconduct as an
omitted assignment of error).
Petitioner’s objections claim that Martinez and Trevino excuse the requirement
that ineffective assistance of appellate counsel claims be exhausted at the state level
through an application for reopening under Rule 26(B). (Doc. 10, at 9). This argument
lacks merit. As previously discussed, the Sixth Circuit has held that Martinez and
Trevino do not apply to save procedurally defaulted claims of ineffective assistance of
appellate counsel such as this one. See supra Part II.B.1.
Accordingly, ground ten of Petitioner’s petition for habeas corpus is denied.
h. Grounds Eleven and Twelve
In grounds eleven and twelve, Petitioner asserts he was denied a fair trial when the
trial court instructed the jury to listen to a taped statement of Savana Sorrell in which she
identified Levingston as a perpetrator of the murder (Sorrell recanted that statement for
her live trial testimony). The Report and Recommendations found that this ground for
relief was properly preserved for merit review, but held that the First District Court of
Appeals decision on this claim was not an objectively unreasonable application of
controlling law. Petitioner’s objections argue that both the state court and the Magistrate
Judge based their decisions on an unreasonable application of California v. Green, 339
U.S. 149 (1970). The Court agrees with the Report and Recommendations that the state
court’s holding was not an unreasonable interpretation of the facts or the law. The Court
in Green held that
the Confrontation Clause does not require excluding from evidence the
prior statements of a witness who concedes making the statements, and who
may be asked to defend or otherwise explain the inconsistency between his
prior and his present version of the events in question, thus opening himself
to full cross-examination at trial as to both stories.
Id. at 164. This holding is consistent with the state court’s ruling regarding grounds
eleven and twelve. Accordingly, grounds eleven and twelve of Petitioner’s habeas
petition are denied.
i. Grounds Thirteen and Fourteen
Grounds thirteen and fourteen of Petitioner’s habeas petition allege that he was
denied the right to due process because of the trial court’s failure to give a specific jury
instruction he requested regarding the credibility of prison informant testimony.
Petitioner’s objections cite statistical data that he claims suggests that a high level of
uncertainty should be placed on such testimony when evaluating its credibility.
However, Petitioner’s requested instruction is heavily based on an instruction in the Ohio
Revised Code regarding accomplice testimony, and the trial court rightly found that
Petitioner’s proposed language was inappropriate in the context of a prison informant.
Petitioner has cited no legal authority that would indicate otherwise. Accordingly,
grounds thirteen and fourteen of Petitioner’s petition for habeas corpus are denied.
Accordingly, IT IS ORDERED that:
Petitioner’s petition for a writ of habeas corpus (Doc. 1) is
DISMISSED WITH PREJUDICE;
A certificate of appealability shall issue with respect to all grounds for
relief alleged in the petition because petitioner has demonstrated a “viable
claim of the denial of a constitutional right" and the issues presented are
"adequate to deserve encouragement to proceed further." See Slack v.
McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S.
880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R. App. P.
The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3), an appeal of
this Order would be taken in good faith and therefore Petitioner shall not
be denied leave to appeal in forma pauperis.
IT IS SO ORDERED.
Timothy S. Black
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?