Woods v. Warden, Southeastern Correctional Institution
SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Upon reconsideration, the Magistrate Judge adheres to his initial conclusion in this case: The Petition should be dismissed with prejudice. Because the Magistrate Judge's conclusions on the First and Third Grounds for Relief would be debatable among reasonable jurists, Woods should be granted a certificate of appealability on those claims. Because reasonable jurists would not disagree with the conclusions on Grounds Two, Four, Five, Six, Seven, Eight, Nine, Ten, and Eleven, Petitioner should be denied a certificate of appealability on those Grounds. Objections to R&R due by 8/29/2017. Signed by Magistrate Judge Michael R. Merz on 8/15/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
- vs -
Case No. 1:16-cv-643
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
TERRY A. TIBBALS, Warden,
Allen Oakwood Correctional Institution,
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case, brought by Petitioner Ricardo Woods pursuant to 28 U.S.C. §
2254 with the assistance of counsel, is before the Court on Petitioner’s Objections (ECF No. 20)
to the Magistrate Judge’s Report and Recommendations on the merits (“Report,” ECF No. 19).
The Warden has not responded to the Objections and his time to do so under Fed. R. Civ. P.
72(b) expired August 11, 2017. Judge Barrett has recommitted the case for reconsideration in
light of the Objections (Recommittal Order, ECF No. 21).
Petitioner’s Objections are thirty-five pages long, but beginning at PageID 4176 they
repeat verbatim Petitioner’s Reply to the Return of Writ (Compare Reply, ECF No. 17, PageID
3969-3997 with Objections, ECF No. 20, PageID 4176-4204). Since the Magistrate Judge has
already analyzed the Reply in writing the original Report, this Supplemental Report will be
confined to the new matter included in the Objections. Petitioner raises six objections which are
First Objection: Error in Deciding Dying Declaration Claim
In his First Ground for Relief, Woods claims the trial court violated his rights under the
Confrontation Clause when it admitted into evidence an identification of him as the offender
produced by having the murder victim, Chandler, blink his eyes in response to certain stimuli.
Chandler had died by the time of trial and was not available for cross-examination. The Report
noted this claim was presented on direct appeal to the First District Court of Appeals and decided
on the merits, meaning that decision was to be reviewed in habeas under the AEDPA deferential
standard of 28 U.S.C. § 2254(d)(1). Petitioner conceded that was the correct standard but argued
the First District’s decision was contrary to Giles v. California, 554 U.S. 353 (2008).
Giles was concerned with whether the common law hearsay exception for testimony from
a witness whose absence was procured by the defendant would satisfy the Confrontation Clause
where the defendant had killed the witness. Justice Scalia wrote for the Court as he often did on
Confrontation Clause issues after his seminal opinion in Crawford v. Washington, 541 U.S. 36
(2004). He stated the issue before the Court as being “whether a defendant forfeits his Sixth
Amendment right to confront a witness against him when a judge determines that a wrongful act
by the defendant made the witness unavailable to testify at trial.” Giles was the but-for cause of
the witness’s absence because he killed her; that was enough for the California Supreme Court,
but not for Justice Scalia. In Crawford, the Court had held that the Confrontation Clause is
“most naturally read as a reference to the right of confrontation at common law, admitting only
those exceptions established at the time of the founding.” 554 U.S. at 358, citing Crawford, 541
U.S. at 54. Justice Scalia noted that the Crawford Court had concluded “that two forms of
testimonial statements were admitted at common law even thought they were unconfronted,” to
wit, the dying declaration and forfeiture by wrongdoing exceptions. No party had asserted the
dying declaration exception was involved in Giles, so the Court analyzed only the forfeiture by
wrongdoing exception and concluded it was not available unless the prosecution could show that
Giles killed the witness with the intention or design of making him unavailable. Giles, 554 U.S.
359-60. Justice Scalia makes it very clear throughout his opinion that he is discussing only the
forfeiture by wrongdoing exception and not the dying declaration exception.
The Report concluded there was no holding in Giles about the constitutional scope of any
dying declaration exception to the Confrontation Clause (Report, ECF No. 19, PageID 4132).
Petitioner objects that although
Giles involved the forfeiture by wrongdoing exception to the
Confrontation Clause, the Court was clear in its pronouncement –
as a matter of historical precedent – that there exists a dying
declaration exception to the Confrontation Clause as well, and that
the exception requires objectively imminent death. Id. at 358. The
Court did so by relying upon centuries-old precedent defining the
dying declaration exception in objective, rather than subjective
terms. Id. (defining dying declaration as a statement “made by a
speaker who was both on the brink of death and aware that he was
dying”) (citing King v. Woodcock, 1 Leach 500, 501–504, 168 Eng.
Rep. 352, 353–354 (1789); State v. Moody, 3 N.C. 31 (Super. L. &
Eq. 1798); United States v. Veitch, 28 F. Cas. 367, 367–368 (No.
16,614) (CC DC 1803); King v. Commonwealth, 4 Va. 78, 80–81
(Gen.Ct.1817). As such, whether the Court relied upon the dying
declaration exception to resolve the issues in Giles is immaterial.
(Objections, ECF No. 20, PageID 4170-71.) What Justice Scalia did in the cited portion of Giles was
indeed to describe the dying declaration exception as it existed at common law at the time of the
But that description of the common law dying declaration exception is dictum,
unnecessary to the decision of the constitutional scope of the forfeiture by wrongdoing exception.
28 U.S.C. § 2254(d)(1) says a habeas court must defer to a state court decision of a
constitutional issue unless it is contrary to “clearly established law Federal law, as determined by the
Supreme Court of the United States.” The Supreme Court itself has made it clear that this phrase
refers to holdings of Supreme Court cases, and not dicta. “‘[C]learly established Federal law’” for
purposes of §2254(d)(1) includes only “‘the holdings, as opposed to the dicta, of this Court’s
decisions.’” Howes v. Fields, 565 U. S. 499, 505, 132 S.Ct. 1181, 182 L. Ed. 2d 17, 25 (2012)
(quoting Williams v. Taylor, 529 U. S. 362, 412, 120 S.Ct. 1495, 146 L. Ed. 2d 389 (2000));
White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697, 188 L. Ed. 2d 698 (2014).
There is no United States Supreme Court holding on the parameters of the dying
declaration exception to the Confrontation Clause, as the Sixth Circuit recognized in Walker v.
Harry, 462 Fed. Appx. 543, 545-46 (6th Cir. 2012).
Second Objection: Further Error in Deciding Dying Declaration Claim
In his second objection (ECF No. 20, PageID 4171), Petitioner argues the Magistrate
Judge “should have considered whether the victim’s death was objectively imminent before
denying Woods’ Confrontation Clause claim.” For the reasons given above as to the First
Objection, this objection is irrelevant. This Court could consider that question only if the
Supreme Court had held that objective imminence was a constitutional requirement for the dying
declaration exception to the Confrontation Clause. It has not done so.
Third Objection: Error in Deciding the Batson Issue
The First District and the Report concluded the trial judge committed error in her
application of Batson v. Kentucky, 476 U.S. 79 (1986), by requiring Defendant to show a pattern
of race-based peremptory challenges before raising a Batson claim (Report, ECF No. 19, PageID
4138, et seq.). When the prosecutor made a peremptory challenge to a second African-American
venireperson, the trial judge required him to make a race-neutral explanation as to both excluded
persons and found he failed to do so with respect to Ms. Laury, the first person excused. An
obvious remedy would have been to seat Ms. Laury at that point, but she had already been
excused and apparently1 been permitted to depart from the courthouse. Both the First District
and the Magistrate Judge put the responsibility for allowing the trial to continue on Woods’
shoulders. Petitioner objects that “[t]o the contrary, it was the trial court’s responsibility to
ensure that Woods’ guilt or innocence was judged by a racially balanced jury, and the trial court
committed reversible, structural error in failing to uphold its duty.” (Objections, ECF No. 20,
There is no constitutional right to a “racially balanced” jury. The right protected by the
Fourteenth Amendment as interpreted in Batson is the right not to be tried by a jury from which a
potential juror has been intentionally removed on the basis of race.
However, it is clear in this case that Woods’ rights under the Fourteenth Amendment
were violated when Ms. Laury was removed. Judge Myers found as much when she concluded
the prosecutor’s reasons were not race neutral and upheld the Batson challenge. (Report, ECF
No. 19, PageID 4141, citing Trial Tr., ECF No. 10-26, PageID 1533.)
Once the violation was found, the question was what remedy should be applied.
Petitioner now argues that only two constitutional remedies were available: reseating Ms. Laury
or summoning a new venire. The Report hypothesized that Ms. Laury had been excused to the
point that she was no longer physically available, although the record does not show that
Assuming Ms. Laury could not have been reseated, the Report concluded the only
The record is incomplete on this point.
appropriate remedy would have been to move for a new venire (Report, ECF No. 19, PageID
4142). The Report concluded it was invited error for defense counsel to allow the trial to go
forward with the Batson error in place. Id. at PageID 4142-43. Petitioner objects that Judge
Myers was constitutionally obliged to summon a new venire sua sponte. (Objections, ECF No.
20, PageID 4172-74, relying on Drain v. Woods, 595 Fed. Appx. 558 (6th Cir. 2014).
Drain is parallel to the instant case in many respects. There the trial judge, having raised
the Batson question sua sponte, found a Batson violation but did nothing adequate to cure it:
Despite finding that the prosecutor's strikes were racially
motivated, the trial court failed to cure the Batson violations that
had already occurred, requiring only that the prosecutor approach
the court for permission before striking any more African
American or minority venire persons. Petitioner's counsel
remained silent, failing to raise any objection to this plainly
595 Fed. Appx. at 561. Drain was cited to this Court for the first time in the Objections; it was
not cited in Petitioner’s Reply (ECF No. 17). In discussing the trial court’s failure to remedy the
Batson violation, Judge Clay wrote that “[i]n the absence of any remedial action undertaken by
the trial court, the existence of an unmitigated Batson violation requires that the conviction be
vacated,” Id. at 581, citing Rice v. White, 660 F.3d 242 (6th Cir. 2011), which itself relied on
Batson for this proposition of law. While Judge Clay does not say so explicitly, a fair inference
from the Drain decision is that failure to remedy a Batson violation by reseating the improperly
challenged juror or summoning a new venire results in a conviction that violates the Fourteenth
Amendment as interpreted in clearly established federal law from the Supreme Court. Although
Drain is unpublished, it relies on a holding from Batson.
The difficulty with Petitioner’s present position on the Batson violation is that it is raised
too late. Woods’ present claim is that it was unconstitutional to proceed with trial with a Batson6
infected jury. But that claim is not made in the Petition. The Third Ground for Relief asserts
only that a Batson violation occurred when Judge Myers “require[ed] Woods to demonstrate a
pattern of race-based jury strikes before shifting the burden to the state to offer a race-neutral
explanation.” (Petition, ECF No. 1, PageID 9).
More importantly, Woods never raised on direct appeal the claim he now makes. His
Second Assignment of Error on direct appeal presented only one issue for review: “Batson does
not require a pattern of discrimination to set forth a prima facie case or to require a race-neutral
explanation from the state.” (Appellant’s Brief, State Court Record Ex. 24, ECF No. 10, PageID
249). Nowhere does Woods assert that Judge Myers was constitutionally required to sua sponte
dismiss the venire. Id. at PageID 267-68. Nowhere in the First District’s decision is there any
indication it was presented with the claim now made.
Instead, it understood the Second
Assignment of Error as it was written, to wit, that the trial judge erred in requiring a pattern of
discrimination. State v. Woods, 2014-Ohio-3892, 2014 Ohio App. LEXIS 3820¶¶ 28-31 (1st
Dist. Sept. 10, 2014).
Although the Respondent recited general law on procedural default in the Return (ECF
No. 11, PageID 3904-06), it did not specifically apply that defense as to this Third Ground for
Relief, presumably because the Batson claim was phrased in the Petition in exactly the same
language that was used in the Second Assignment of Error on direct appeal.
It is not
inappropriate for the Court to raise a procedural default defense sua sponte. Sowell v. Bradshaw,
372 F.3d 821, 830 (6th Cir. 2004); Lorraine v. Coyle, 291 F.3d 416 (6th Cir. 2002)(§ 2254 capital
case); White v. Mitchell, 431 F.3d 517, 514 (6th Cir. 2005)(capital case); Elzy v. United States,
205 F.3d 882 (6th Cir. 2000)(§ 2255 case). It is appropriate to raise the procedural default
defense here where the claim now argued (Judge Myers was constitutionally required to summon
a new venire sua sponte) was not made in the Petition. Certainly the State did not affirmatively
waive the defense by not raising it when not called on to do so by the wording of the Petition.
“A claim may become procedurally defaulted in two ways.”
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a
claim is procedurally defaulted where state-court remedies have
been exhausted within the meaning of § 2254, but where the last
reasoned state-court judgment declines to reach the merits because
of petitioner’s failure to comply with a state procedural rule. Id.
Second, a claim is procedurally defaulted where the petitioner
failed to exhaust state court remedies, and the remedies are no
longer available at the time the federal petition is filed because of a
state procedural rule. Id.
Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013). Failure to raise a constitutional issue at all
on direct appeal is subject to the cause and prejudice standard of Wainwright v. Sykes, 433 U.S.
72 (1977); Murray v. Carrier, 477 U.S. 478, 485 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6th
Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th
Cir. 1985), cert denied, 474 U.S. 831 (1985).
It would be arguable that failure to raise the claim now made on direct appeal was the
result of ineffective assistance of appellate counsel.2 However, such a claim would have to be
presented first to the First District Court of Appeals on a delayed application for reopening under
Ohio R. App. 26(B) and itself would be subject to procedural default analysis. Edwards v.
Carpenter, 529 U.S. 446 (2000).
Because Petitioner’s Batson claim as it is now made was procedurally defaulted by
failure to fairly present it to the First District Court of Appeals, it should be dismissed with
Present counsel could not make that argument because she represented Woods on direct appeal.
Fourth Objection: General Error in Denying Claims Two, Four, Five, Six, Seven, Eight,
Nine, Ten, and Eleven
In his Fourth Objection, Petitioner states in conclusory form that the Magistrate Judge
erred in denying claims Two, Four, Five, Six, Seven, Eight, Nine, Ten, and Eleven (Objections,
ECF No. 20, PageID 4175). Petitioner makes no argument as to any of these claims, merely
stating “[t]his objection is made to preserve the record and to avoid waiver of arguments for
possible appeal.” Id. at n. 2.
This general objection is unavailing to preserve unstated issues for appeal.
Under the Walters rule [United States v. Walters, 638 F.2d 947 (6th
Cir. 1981)], only specific objections to the Report will be
preserved for appellate review. Smith v. Detroit Fed'n of Teachers,
Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). This is because
our "function is to review the case presented to the district court,
rather than a better case fashioned after a district court's
unfavorable order." Hall v. Warden, Lebanon Correctional Inst.,
662 F.3d 745, 753 (6th Cir. 2011) (internal quotation marks and
Henson v. Warden, 2015 U.S. App. LEXIS 13444 *7 (6th Cir. 2015); Willis v. Sullivan, 931 F.2d
390, 401 (6th Cir. 1991).
Fifth Objection: Certificate of Appealability Error
In his Fifth Objection, Woods claims, again in conclusory terms, that the Magistrate
Judge erred in not recommending a certificate of appealability on Grounds Two, Four, Five, Six,
Seven, Eight, Nine, Ten, and Eleven. (Objections, ECF No. 20, PageID 4176). The only
argument made on this Objection is “[r]easonable jurists could disagree as to the merits of these
claims, and the Court should issue a certificate of appealability allowing Woods to raise them on
That is a purely conclusory statement of the standard for a certificate of
appealability; it does not even purport to show which reasonable jurists in which cases have
disagreed. It is therefore an unavailing general objection as is the Fourth Objection supra.
Sixth Objection: Failure to Clarify Scope of Record
Petitioner’s Sixth Objection is that the Magistrate Judge did not address a discrepancy
between the state court record and the federal habeas record before deciding the case
(Objections, ECF No. 20, PageID 4176).
While this case was pending on direct appeal, Petitioner filed a Motion to Expand the
Appellate Record on March 13, 2014. That Motion and the two items sought to be added are
attached to the Reply (ECF No. 17-1). Those items are l) a transcript of the trial court's
September 22, 2011, oral ruling on Woods' motion to suppress,
and 2) a motion for
reconsideration of the trial court's ruling on a motion in limine that was docketed with the
Common Pleas Court on December l8, 2012. Id. at PageID 3999.
Petitioner represents that those items were not included in the State Court Record as filed
by the Respondent and asks that “[t]he Magistrate Judge . . . clarify that this portion of Woods’
state court transcript is a part of the federal habeas record before resolving the merits of Woods’
case.” (Objections, ECF No. 20, PageID 4176.)
Judge Litkovitz’s Order for Answer required the State to file “those portions of the state
court record needed to adjudicate this case (ECF No. 4, PageID 26). The state court record as
filed comprises 3, 857 pages (ECF No. 10, with Attachments 1 through 37). Rule 7 of the Rules
Governing § 2254 Cases permits a party to move to expand the record, but it does not give
Petitioner authority to sua sponte expand the record by attaching materials to his reply.
Petitioner here never moved for expansion of the record, but merely attached these materials to
the Reply. Petitioner asserts the First District granted his motion to expand and cites to PageID
405 which is a copy of the docket on appeal.
Respondent has nowhere objected to the
genuineness of these documents or their inclusion in the record. Accordingly, Petitioner’s
implicit motion to expand the record to include these items is GRANTED. Petitioner makes no
argument in the Objections as to their materiality.
Upon reconsideration, the Magistrate Judge adheres to his initial conclusion in this case:
The Petition should be dismissed with prejudice. Because the Magistrate Judge’s conclusions on
the First and Third Grounds for Relief would be debatable among reasonable jurists, Woods
should be granted a certificate of appealability on those claims. Because reasonable jurists
would not disagree with the conclusions on Grounds Two, Four, Five, Six, Seven, Eight, Nine,
Ten, and Eleven , Petitioner should be denied a certificate of appealability on those Grounds.
August 15, 2017.
s/ Michael R. Merz
United States Magistrate Judge
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. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
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