Levingston v. Warden, Warren Correctional Institution
ORDER granting 46 Respondents' motion to reconsider the portion of the Court's Order granting a blanket certificate of appealability on all fourteen grounds; The certificate of appealability granted by the Court in its previous Order adopting the supplemental report and recommendations of the United States Magistrate Judge 43 is RESCINDED; A certificate of appealability shall issue with respect to grounds 11 and 12 of petitioner's [2 9] amended petition for writ of habeas corpus ; A certificate of appealability shall not issue with respect to grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, and 14 of petitioner's 29 amended petition for writ of habeas corpus ; Petitioner's pending motion for extension of time 48 is DENIED AS MOOT. Signed by Judge Timothy S. Black on 5/31/17. (sct)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 1:12-cv-724
Judge Timothy S. Black
ORDER GRANTING RESPONDENT’S MOTION TO
RECONSIDER THE PORTION OF THE COURT’S ORDER
GRANTING A BLANKET CERTIFICATE OF
APPEALABILITY ON ALL FOURTEEN GROUNDS (Doc. 46)
This civil action is before the Court regarding Respondent’s motion to reconsider
the portion of the Court’s Order granting a blanket certificate of appealability on all
fourteen grounds. (Doc. 46).
On November 6, 2015, the Magistrate Judge assigned to this case issued a report
and recommendations recommending that Petitioner Marty Livingston’s petition for
habeas corpus be denied. (Doc. 36). Following Petitioner’s objections to the report and
recommendations (Doc. 39), this Court ordered the Magistrate Judge to supplement his
report and recommendations. (Doc. 40). The Magistrate Judge’s supplemental report
and recommendations were filed January 7, 2016, and again recommended dismissal of
the petition for writ of habeas corpus. (Doc. 41). Following Petitioner’s objections to the
supplemental report and recommendations (Doc. 42), this Court entered an Order on
February 6, 2017, largely adopting the report and recommendations of the Magistrate
Judge and dismissing the petition. (Doc. 43).
The Court’s Order closing this civil action adopted the report and
recommendations of the Magistrate Judge in all ways save one: while the Magistrate
Judge recommended that a certificate of appealability (COA) should not issue with
respect to the grounds in Petitioner’s petition for writ of habeas corpus, this Court
determined that a COA was appropriate, and accordingly issued a COA for all of the
claims in the petition. The Order did not individually evaluate each claim of the petition
to determine whether a COA was warranted, but instead issued a “blanket” COA
indicating that Petitioner was free to appeal any of the grounds in his petition.
On February 16, 2017, Respondent filed the motion for reconsideration of the
Court’s previous Order dismissing the petition for writ of habeas corpus. (Doc. 46).
Respondent’s motion asks the Court to reconsider only the portion of its Order granting a
COA to the Petitioner. Respondent argues that the issuance of a “blanket” COA was
improper, as the Court was required to evaluate each individual ground of the petition to
determine if a COA was warranted for that ground. Respondent further argues that none
of the 14 grounds enumerated in the petition merit the Court’s granting a COA.
STANDARD OF REVIEW
While the Federal Rules of Civil Procedure “do not recognize a ‘Motion for
Reconsideration[,]’ [t]he Sixth Circuit has held…that a court may treat a motion to
reconsider under the standard of Rule 59(e) of the Federal Rules of Civil Procedure.”
Solar X Eyewear, Case No. 1:11cv763, 2011 U.S. Dist. LEXIS 100421, at *3 (N.D. Ohio
Sept. 7, 2011) (citing Smith v. Hudson, 600 F.2d 60, 62–63 (6th Cir. 1979) (“[A] motion
which asks a court to vacate and reconsider, or even to reverse its prior holding, may
properly be treated under Rule 59(e) as a motion to alter or amend a judgment.”)). The
Sixth Circuit has determined, however, that a motion for reconsideration may be granted
only: “(1) to correct a clear error of law; (2) to account for newly discovered evidence or
an intervening change in the controlling law; or (3) to otherwise prevent manifest
injustice.” CGH Transp. Inc. v. Quebecor World, Inc., 261 Fed. App’x 817, 823 (6th Cir.
2008) (citing GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir.
1999)). Such a motion is extraordinary and is seldom granted because it contradicts
notions of finality and repose. Wells Fargo Bank v. Daniels, No. 1:05cv2573, 2007 U.S.
Dist. LEXIS 80694, at *1 (N.D. Ohio Oct. 22, 2007). “Further, under Rule 59(e), parties
cannot use a motion for reconsideration to raise new legal arguments that could have
been raised before a judgment was issued.” Roger Miller Music v. Sony/ATV Publ’g, 477
F.3d 383, 395 (6th Cir. 2007). 1
The main thrust of Respondent’s motion is that this Court erred when it chose to
grant a COA for each of the grounds in the petition for writ of habeas corpus without
evaluating each ground individually. Respondent argues that “[i]t is well settled that a
See also U.S. v. Limited Inc., 179 F.R.D. 541, 547 (S.D. Ohio 1988) (motions for
reconsideration are not intended to “regurgitate arguments previously presented or present[ing]
arguments which originally could have been argued.”).
blanket certificate of appealability for all claims is improper, even in a capital case.”
(Doc. 46, at 5 (citing Frazier v. Huffman, 348 F.3d 174 (6th Cir. 2003), citing Porterfield
v. Bell, 258 F.3d 484 (6th Cir. 2001); Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001)).
The Court has reviewed the cases offered by Respondent in support of its motion
and the law is clear. The rule articulated in the cases cited by Respondent is applicable to
the blanket order granting a COA previously granted by the Court in this case. The
issuance of such a blanket COA was therefore a “clear error of law” that merits the
granting of Respondent’s construed Rule 59(e) motion. The Court must reevaluate each
of Petitioner’s grounds for relief separately to determine which grounds merit a COA and
which do not. Accordingly, the Court will evaluate each of Petitioner’s grounds for relief
Procedurally defaulted claims
In its previous Order adopting the magistrate judge’s report and recommendations
and denying Petitioner’s motion for writ of habeas corpus, the Court found that grounds
1, 2, 3, 4, 6, 7, 8, 9, 10, 13, and 14 of Petitioner’s motion were procedurally defaulted,
and accordingly denied each ground. (Doc. 43). The Supreme Court has outlined the test
a district court should use to evaluate whether a COA is warranted for a habeas claim that
was denied on procedural grounds:
[W]hen the district court denies a habeas petition on procedural grounds
without reaching the prisoner's underlying constitutional claim, a COA
should issue (and an appeal of the district court's order may be taken) if the
prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional
right, and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 478 (2000). The Court shall apply this standard to each
of the procedurally defaulted grounds for habeas relief from Petitioner’s habeas petition.
a. Ground 1
In ground 1, Levingston claimed that trial counsel had rendered ineffective
assistance by failing to learn of Suriyah Dukes’s changed testimony. This claim was
procedurally defaulted. The Court determined that, in light of Dukes’s contradictory
statements and the other evidence against Levingston—including evidence of his
admission to his cellmate—the omission of the information in Dukes’s post-trial affidavit
(that she had seen the perpetrator, whom she could not identify, and that it was not
Levingston) was not prejudicial. Jurists of reason would not find the procedural ruling
debatable, and they would not find debatable the conclusion that Levingston had not been
deprived of a constitutional right.
Accordingly, a certificate of appealability is not warranted in regards to ground 1
of Petitioner’s petition for writ of habeas corpus.
b. Ground 2
In ground 2, Levingston complained that trial counsel had rendered ineffective
assistance by failing to investigate his alibi that he was with his mother at the time of the
murder. This ground too was procedurally defaulted. The Court rejected the claim
saying, “[a]s 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.” (Doc. 43, at 7–8). Again, the
Court concluded that there was no prejudice. Id. Again, jurists of reason would find
debatable neither the absence of a constitutional violation nor the correctness of the
Accordingly, a certificate of appealability is not warranted in regards to ground 2
of Petitioner’s petition for writ of habeas corpus.
c. Grounds 3, 4, 6, 7, 8, and 9
Grounds 3, 4, 6, 7, 8, and 9 of Petitioner’s petition were procedurally defaulted
because Petitioner failed to appeal those grounds to the Ohio Supreme Court. Petitioner
argued that procedural default should be excused for each of these claims due to
ineffective assistance of appellate counsel. For each of these grounds, Petitioner cited
Gunner v. Welch, 749 F.3d 511 (6th Cir. 2014) for the proposition that appellate counsel
was ineffective for “failing to pursue postconviction relief.” The Court determined that
Gunner contained no such requirement—the most Gunner requires is notification of 1)
the transcript’s filing, and 2) the beginning of the time for an R.C. 2953.21 petition to
run. (Doc. 43, at 8–10). The Court reasoned that reading into Gunner a requirement that
appellate counsel pursue postconviction relief to the Ohio Supreme Court would create a
guarantee to counsel past a defendant’s first appeal, which is not required by the Sixth
Amendment. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Ross v. Moffitt, 417
U.S. 600 (1974).
No reasonable jurist would disagree with this Court’s ruling regarding Petitioner’s
flawed interpretation of Gunner. Since the ruling in Gunner was issued, the Sixth Circuit
Court of Appeals has confirmed that Gunner did not create any obligation that would
give a petitioner the right to counsel in a proceeding where counsel was not previously a
constitutional requirement. See McClain v. Kelley, 631 F. App’x 422, 431, 437 (6th Cir.
2015). With this guidance from the Sixth Circuit Court of Appeals, no jurist could
reasonably argue that Petitioner’s appellate counsel was obligated to pursue his
postconviction relief to the Ohio Supreme Court.
Accordingly, a certificate of appealability is not warranted in regards to grounds 3,
4, 6, 7, 8, or 9 of Petitioner’s petition for writ of habeas corpus.
d. Ground 10
In Ground 10, Levingston argued that the procedural default of his prosecutorial
misconduct claim should be excused due to ineffective assistance of appellate counsel.
Although Levingston filed a Rule 26(B) application to reopen, he did not raise appellate
counsel’s failure to argue prosecutorial misconduct as an assignment of error. A ground
that is itself procedurally defaulted cannot be used as “cause” to excuse the default of
another procedurally defaulted claim. See Edwards v. Carpenter, 529 U.S. 446, 450–51
(2000) (procedurally defaulted claim of ineffective assistance of appellate counsel cannot
serve as the “cause” component of “cause and prejudice” to excuse a procedural default);
Abshear v. Moore, 354 Fed. Appx. 964 (6th Cir. 2009); Barkley v. Konteh, Warden, 240
F. Supp.2d 708, 713–14 (N.D. Ohio Dec. 13, 2002). Although Levingston sought to
argue that Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S.Ct. 1911
(2013), excuse the procedural default, the Court noted that the Sixth Circuit has held that
neither of these cases applies to defaulted claims of ineffective assistance of appellate
counsel. (Doc. 43, at 5–6). Again, jurists of reason would not find the Court’s
conclusions on the constitutional or procedural issues debatable.
Accordingly, a certificate of appealability is not warranted in regards to ground 10
of Petitioner’s petition for writ of habeas corpus.
e. Grounds 13 and 14
In Grounds 13 and 14, Levingston asserted that he was deprived of his
constitutional rights when the trial judge failed to give an appropriately strong “snitch”
instruction. These claims were procedurally defaulted as they were never presented on
direct appeal to the Ohio Supreme Court. In the supplemental Report and
Recommendation that was adopted by the Court, the Magistrate Judge repeated that the
claims were never argued as federal constitutional claims in the state court and, again,
Levingston failed to appeal the claim to the Ohio Supreme Court. (Doc. 41, at 13–15).
Although Levingston sought to blame ineffective assistance of appellate counsel, the
Magistrate Judge noted that, because there is no constitutional right to appointed counsel
on a discretionary appeal, deficient performance by counsel in such an appeal cannot
excuse a procedural default in pursuing that appeal. Id. at 14. Jurists of reason would not
debate these constitutional and procedural conclusions.
Accordingly, a certificate of appealability is not warranted in regards to grounds
13 and 14 of Petitioner’s petition for writ of habeas corpus.
Merits adjudicated claims
A certificate of appealability shall issue with respect to a particular ground for
relief alleged in the petition that was adjudicated on the merits if the 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.22(b).
a. Ground 5
In Ground Five, Levingston raises a stand-alone claim of actual innocence. As
even Levingston himself admits, the claim is noncognizable in federal habeas corpus. In
Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court made it clear that “[c]laims
of actual innocence based on newly discovered evidence have never been held to state a
ground for federal habeas relief absent an independent constitutional violation occurring
in the underlying state criminal proceedings.” Id. at 400 (quoting Townsend v. Sain, 372
U.S. 293, 317 (1963)). Because the Supreme Court has yet to recognize a freestanding
actual innocence claim, the Sixth Circuit has repeatedly ruled that, particularly in the
context of a non-capital case such as this, such claims are not cognizable on federal
habeas review. See, e.g., Cress v. Palmer, 484 F.3d 844, 854 (and Sixth Circuit cases
cited therein); Thomas v. Perry, F. App’x 485, 487 (6th Cir. 2014); Sitto v. Lafler, 279 F.
App’x 381, 382 (6th Cir. 2008); Wright v. Stegall, 247 F. App’x 709, 711 (6th Cir. 2007);
see also Speer v. United States, No. 2:12cv277, 2014 WL 1367076, at *2 (S.D. Ohio Apr.
7, 2014) (and Sixth Circuit cases cited therein) (holding that the petitioner was unable to
obtain habeas relief based on a freestanding claim of actual innocence because the
Supreme Court has never recognized such a claim). Again, jurists of reason would not
find the rejection of this claim debatable.
Accordingly, a certificate of appealability is not warranted in regards to ground 5
of Petitioner’s petition for writ of habeas corpus.
b. Grounds 11 and 12
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). These grounds were properly preserved for merit review, but the
Court held that the Ohio First District Court of Appeals’s decision was not an objectively
unreasonable application of controlling law. (Doc. 43, at 10–11).
Petitioner acknowledges federal precedent holding that the use of a prior
inconsistent statement as substantive evidence is permitted so long as the witness appears
at trial and is available for cross examination. However, Petitioner cites United States v.
Leslie, 542 F.2d 285 (5th Cir. 1976), for the proposition that
a prior inconsistent statement could be constitutionally admitted as
substantive evidence where: (1) the declarant was available for crossexamination; (2) the statement was made shortly after the events related and
was transcribed promptly; (3) the declarant knowingly and voluntarily
waived the right to remain silent; (4) the declarant admitted making the
statement; and (5) there was some corroboration of the statement's
(Doc. 39, at 20 (citing United States v. Leslie, 542 F.2d 285, 290–91 (5th Cir. 1976))).
Petitioner claimed that Ms. Sorrell’s prior statement failed on the second and fifth
grounds and therefore that the admittance of the prior statement was a violation of due
The opinion in Leslie is not binding upon this Court, and this Court found that the
Ohio First District Court of Appeals’s admission of Ms. Sorrell’s prior statement was not
unreasonable given the Supreme Court’s guidance in California v. Green, 339 U.S. 149
(1970). (Doc. 43, at 10–11). However, upon review, the Court finds that a reasonable
jurist may agree that the admission of a prior inconsistent statement can implicate due
process based on the circumstances surrounding the collection of the prior statement,
even in circumstances where the witness is available at trial for cross examination.
Should a reasonable jurist find that a factor based interpretation of a prior inconsistent
statement was necessary to ensure that due process was afforded through the statement’s
admission (as did the Fifth Circuit Court of Appeals in Leslie), that same jurist could
reasonably determine that the particular circumstances surrounding Ms. Sorrell’s
statement made the admission of that statement at trial a violation of Petitioner’s right to
due process. The Court therefore believes that these two grounds of the petition are
“adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S.
473, 475 (2000).
Accordingly, the Court finds that the issuance of a certificate of appealability for
grounds 11 and 12 of Petitioner’s petition for writ of habeas corpus is warranted.
Accordingly, for the reasons stated:
1) Respondents’ motion to reconsider the portion of the Court’s Order granting a
blanket certificate of appealability on all fourteen grounds. (Doc. 46) is
2) The certificate of appealability granted by the Court in its previous Order
adopting the supplemental report and recommendations of the United States
Magistrate Judge (Doc. 43) is RESCINDED;
3) A certificate of appealability shall issue with respect to grounds 11 and 12 of
petitioner’s amended petition for writ of habeas corpus (Doc. 29);
4) A certificate of appealability shall not issue with respect to grounds 1, 2, 3, 4,
5, 6, 7, 8, 9, 10, 13, and 14 of petitioner’s amended petition for writ of habeas
corpus (Doc. 29);
5) Petitioner’s pending motion for extension of time (Doc. 48) is DENIED AS
IT IS SO ORDERED.
Timothy S. Black
United States District Judge
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