Dillingham v. Warden Chillicothe Correctional Institution

Filing 37

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is again respectfully recommended that the Petition be dismissed with prejudice and that Petitioner be denied a certificate of appealability. Objections to R&R due by 8/14/2014. Signed by Magistrate Judge Michael R Merz on 7/28/2014. (kpf1)

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

CHARLES DILLINGHAM,
Petitioner,

:

Case No. 1:13-cv-468

- vs -

Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

WARDEN, CHILLICOTHE CORRECTIONAL
INSTITUTION,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 35) to
the Magistrate Judge’s Report and Recommendations recommending the Petition in this case be
dismissed with prejudice (the “Report,” Doc. No. 33). Chief Judge Dlott has recommitted the
case for reconsideration in light of the Objections (Doc. No. 36).

Ground One: Sufficiency of the Evidence

In his First Ground for Relief, Dillingham asserts he was convicted on insufficient
evidence of his identity as the person who did the shooting at the Grub Pub. As noted in the
Report, this states a claim for relief under the Fourteenth Amendment as applied in Jackson v.
Virginia, 443 U.S. 307 (1979). It was raised on direct appeal from the conviction. However, the
Twelfth District Court of Appeals considered the testimony of a number of witnesses who
identified Dillingham as the shooter. Applying the correct constitutional standard, the court of
1

appeals found there was sufficient evidence from which a reasonable factfinder could have found
beyond a reasonable doubt that Dillingham was the shooter. State v. Dillingham, 2011-Ohio6348, 2011 Ohio App. LEXIS 5210 (12th Dist. Dec. 12, 2011)(“Dillingham I”). The Report
recommended deference to this decision under 28 U.S.C. § 2254(d)(1).
Dillingham objects that neither the court of appeals nor the Report recites the crossexamination testimony of Natasha Ness, a bartender at the location where the shooting occurred,
in which her identification testimony is impeached. He asserts failure to discuss this testimony
means he did not receive a fair adjudication of this claim. However, there is no due process right
to have certain testimony specifically quoted in an appellate decision and the fact it was not
quoted does not imply it was not considered by either this Court or the court of appeals, or for
that matter the trial judge. This case was tried to the bench. Whatever value the crossexamination had in impeaching Ms. Ness was for the trial judge to decide. The quoted crossexamination does not consist of her withdrawal or repudiation of her direct examination, nor is
the direct testimony so inherently incredible that no reasonable fact finder could believe it. The
fact that witnesses could not identify Dillingham from the surveillance tapes alone does not
negate their ability to identify him based on other acquaintance. Ness had known him for years.
Detective Erb had spent considerable time with him on the night of the shooting before it
happened. Taken together, this evidence is constitutionally sufficient.
Ground for Relief should be dismissed with prejudice.

2

Therefore the First

Ground Two: Double Jeopardy

In his Second Ground for Relief, Dillingham contends his conviction for both felonious
assault and having a weapon while under a disability is precluded by the Double Jeopardy Clause
because Ohio Rev. Code § 2941.25 makes these two offenses allied offenses of similar import
for which only one conviction can be obtained. This claim was raised on direct appeal and
decided adversely to Dillingham under the prevailing Ohio Supreme Court precedent, State v.
Johnson, 128 Ohio St.3d 153 (2010).

This Court is bound by the Twelfth District’s

interpretation of Johnson and in any event that interpretation is not contrary to nor an
unreasonable application of any clearly established United States Supreme Court law.
Accordingly the Report recommended dismissing the Second Ground with prejudice.
Dillingham objects to the Twelfth District’s interpretation of Johnson, but his objection
makes it clear he does not understand what the Twelfth District decided. Under Ohio Rev. Code
§ 2941.25, a person may be convicted and sentenced for two offenses if they are committed with
a separate animus as to each. Here the Twelfth District found that Dillingham chose to carry a
firearm sometime earlier on the day of the shooting and then, having the gun, decided to use it to
shoot the two victims. He could have been convicted and sentenced for having a firearm while
under a disability if he had been stopped by police for a traffic infraction earlier in the evening
and the gun had been found on him.
Separately from the Ohio Rev. Code § 2941.25 analysis, the constitutional test under the
Double Jeopardy Clause is “whether each offense contains an element not contained in the
other.” United States v. Dixon, 509 U.S. 688, 696 (1993); Blockburger v. United States, 284 U.S.
299, 304 (1932). The two offenses of which Dillingham was convicted have elements which

3

they do not share. One can be convicted of felonious assault with a firearm without being
prohibited from having the firearm by virtue of a felony conviction; one can be convicted of
having a weapon while under a disability without any proof the firearm was used to inflict harm
on someone.
Ground Two is therefore without merit and should be dismissed with prejudice.

Ground Three: Denial of New Trial/Brady v. Maryland Claim

In his Third Ground for Relief, Dillingham asserts he is constitutionally entitled to a new
trial on the basis of newly discovered evidence which was improperly withheld from him under
Brady v. Maryland, 373 U.S. 83 (1963).
The Report found that this claim was procedurally defaulted because the Twelfth District
had invoked Ohio’s criminal res judicata rule against Dillingham and, in any event, he had not
demonstrated any Brady violation.
Dillingham objects that the Roberson Affidavit on which he relies is outside the record on
direct appeal and therefore was properly presented in a post-conviction petition and is not barred
by res judicata. In making this argument, Dillingham ignores the finding of the court of appeals
that there is no proof at all of when the Roberson Affidavit was created and therefore no proof it
did not exist at the time of direct appeal. Of course if it did, it could have been added to the
appellate record by a timely motion for new trial and res judicata would apply because it was
not. The Ohio criminal res judicata doctrine applies to all issues which could have been raised
on direct appeal and the Twelfth District held Dillingham had not shown this issue could not
have been thus raised.

4

Entirely apart from the res judicata procedural default, the Twelfth District also held
Dillingham had not shown he was prevented from discovering and presenting the Roberson
Affidavit within 120 days of judgment. This was one of the bases on which it upheld the trial
court’s denial of leave to file a delayed new trial motion. The timely filing requirement is part of
Ohio R. Crim. P. 33 and it was enforced against Dillingham here, providing a dispositive
procedural default independent of the res judicata bar.
Finally, Dillingham has not shown the Twelfth District’s decision on the merits of his
Brady claim is objectively unreasonable. Roberson’s Affidavit does not say someone besides
Dillingham was the shooter, nor does it say he definitely was not. What it says instead is “I was
asked if Chuck Dillingham was the shooter and I stated on both occasions that I could not at any
time positively identify that it was him.” (Return of Writ, Doc. No. 12, Ex. 18.) This is simply
not exculpatory or impeaching evidence. While as Dillingham notes Roberson was present at the
bar and perhaps might have been able to recognize the shooter, she did not. She didn’t identify
anyone else and she definitely did not rule Dillingham out.
Dillingham essentially objects that the State has not proven it did not commit a Brady
violation because it has refused to produce Roberson’s statements to the police. However,
Roberson’s Affidavit refutes that claim by saying she was never asked to sign any statements;
the State cannot produce what does not exist. Moreover, assuming there are police officer’s
notes from the Roberson interviews (as opposed to signed statements from Roberson), they do
not constitute Brady material unless they contain something far more favorable to Dillingham
than the Roberson Affidavit, and there is no proof to that effect.
Ground Three for Relief should be dismissed with prejudice.

5

Ground Four: Ineffective Assistance of Trial Counsel

In his Fourth Ground for Relief, Dillingham claims he received ineffective assistance of
trial counsel because his trial attorney did not call Roberson as a witness. The Report rejected
this Ground for Relief both as procedurally defaulted on two bases and on the merits. The court
of appeals reached the same conclusion.
Simply put, Dillingham cannot show prejudice because Roberson’s testimony, assuming
she testified as stated in her Affidavit, would not have added anything material to the defense for
the reasons outlined under Ground Three.

Certificate of Appealability

The Report recommends that Dillingham be denied a certificate of appealability because
reasonable jurists would not disagree with the conclusions, in the Report. Dillingham objects
that this amounts to a prohibited blanket denial even before he moved for a certificate of
appealability. See Porterfield v. Bell, 258 F.3d 484 (6th Cir. 2001); Murphy v. Ohio, 263 F.3d
466 (6th Cir. 2001).
To obtain a certificate of appealability, a petitioner must show at least that Ajurists of
reason would find it debatable whether the petition states a valid claim of denial of a
constitutional right.@ Slack v. McDaniel, 529 U.S. 473, 484 (2000). That is, it must find that
reasonable jurists would find the district court=s assessment of the petitioner=s constitutional
claims debatable or wrong or because they warrant encouragement to proceed further. Banks v.
Dretke, 540 U.S. 668, 705 (2004); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

6

After the Porterfield and Murphy decisions cited above, the Supreme Court amended
Rule 11 of the Rules Governing § 2254 Cases to provide that a district judge, when entering
judgment in a habeas corpus case denying relief, must issue or deny a certificate of appealability
whether or not the petitioner has asked for one. To ensure that the assigned district judge will be
able to enter judgment, magistrate judges make a recommendation on appealability when they
recommended a disposition of a claim.
It is accurate, as Dillingham points out, that the Report recommends denying a certificate
of appealability on all issues decided in the Report, but that was done after considering each of
them separately. To make it clear, the Magistrate Judge concludes reasonably jurists would not
disagree with the recommended disposition of any of the claims or issues in the Petition.
Therefore it is again respectfully recommended that the Court deny a certificate of appealability.

X

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
7

within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

8