Delawder v. Warden Ross Correctional Institution
SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reviewed the Report in light of the Objections, the Magistrate Judge again respectfully recommends that the Petition be dismissed with prejudice. Because the Magistrate Judge is not persuaded that r easonable jurists would disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitte d to proceed in forma pauperis. Objections to R&R due by 2/22/2018. Signed by Magistrate Judge Michael R. Merz on 2/8/2018. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
RODNEY E. DELAWDER,
- vs -
Case No. 1:16-cv-743
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
Ross Correctional Institution
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 28) to the
Magistrate Judge’s Report and Recommendations which recommended dismissing the Petition
with prejudice (ECF No. 27). Judge Barrett has recommitted the case for reconsideration in light
of the Objections (Order, ECF No. 29).
Argument that the Return was Untimely Filed
Petitioner had argued that Respondent’s Return of Writ was untimely filed and therefore
could not be considered by the Court. The Report concluded that there was no date set by
Magistrate Judge Bowman for filing the Return (considering that a motion to dismiss intervened)
and that the Return was therefore not untimely (Report, ECF No. 27, PageID 1296-97). Petitioner
objects with a recalculation of the due date and again asserts that the Court is prohibited from
considering the Return because it was untimely filed.
The argument about whether the Return was untimely is ultimately immaterial. No law
cited by Petitioner or known to the Court prohibits a habeas court from considering a “late” return
of writ. Federal law has a strong preference for considering cases on their merits. Even where a
defendant has been formally declared to be in default, Fed. R. Civ. P. 55 allows the court to set
aside the default so that the case can be heard on the merits. There was no formal declaration of
default here; Petitioner did not seek one. But even if a default had been declared, the Court would
be inclined to set it aside so as to hear the merits of the case.
Argument that the Return is Barred by the Law of the Case
Petitioner argued that, by virtue of the law of the case doctrine, the defenses raised in the
Return of Writ were barred because they had not been raised in the Motion to Dismiss. The Report
explained that law of the case is about not changing decisions of the court already made in a case;
“[l]aw of the case does not act to bar consideration of arguments not made at an earlier stage of the
case, so long as they are properly raised later.” (Report, ECF No. 27, PageID 1298).
Delawder objects that a federal habeas court must follow the state law of the case doctrine
when deciding a § 2254 case, on analogy to application of state law in diversity actions (Objections,
ECF No. 28, PageID 1312.) But state substantive law is applicable in diversity actions because the
state law provides the substantive cause of action. 28 U.S.C. § 1652. In habeas, the substantive cause
of action is provided by the United States Constitution. And even in diversity cases in federal court,
federal procedural law applies. Sibbach v. Wilson, 312 U.S. 1, 14 (1940).
The defense raised in the Motion to Dismiss was lack of exhaustion of state court remedies.
As pointed out in that Motion, district courts are not permitted to adjudicate “mixed” habeas
petitions – petitions containing both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S.
509, 510, 522 (1982)(ECF No. 11, PageID 528). Fed. R. Civ. P. 12(b)(6) permits a defendant to
raise by motion matters such as lack of exhaustion. While the exhaustion doctrine is, strictly
speaking, not a jurisdictional requirement, it does limit the power of a habeas court to decide a
case when a mixed petition is filed. Hence it is in the interest of judicial economy to decide the
exhaustion issue first.
The Return was not untimely and the law of the case doctrine does not prevent the Court
from considering the Return of Writ.
Ground One: Failure to Suppress DNA Evidence
In his First Ground for Relief, argues that the DNA evidence implicating him in the
shooting death of John McKnight should have been suppressed. His DNA was found in many
places on the murder weapon, but not on the shell casing. His trial attorney filed a motion to
exclude the DNA evidence altogether because he had been advised, incorrectly that any DNA on
the shell casing from the murder round had been contaminated and could not be tested. On the
fourth day of trial it was determined this was incorrect. The trial judge then granted a defense
motion to test the swab from the shell casing which showed there was no DNA on it, consistent
with the forensic scientist’s testimony that firing a shell will destroy and DNA present and that she
had never recovered a DNA profile from a fired shell, despite testing thousands (Quoted in Report
from appellate decision, ECF No. 27, PageID 1300).
The Report concluded that this claim – that the DNA evidence should not have been
admitted – was a claim under Ohio evidentiary law, not a federal constitutional claim. Id. at PageID
1301. Delawder objects that some violations of state law are actionable in habeas if they “are of
Constitutional magnitude.” (Objections, ECF No. 28, PageID 1312-13.) The only Sixth Circuit
case relied on by Delawder is Walker v. Engle, 703 F.2d 959 (6th Cir. 1983), in which the court
held that the cumulative effect of many errors in the admission of evidence denied Walker a fair
trial. The Walker court noted the general rule:
Bell v. Arn, 536 F.2d 123 (6th Cir. 1976); Reese v. Cardwell, 410
F.2d 1125 (6th Cir. 1969). Yet, errors of state law, including
evidentiary rulings, which result in a denial of fundamental fairness
will support relief in habeas corpus. Handley v. Pitts, 491 F. Supp.
597, 599 aff'd., 623 F.2d 23 (6th Cir.1980); Maglaya v. Buchkoe,
515 F.2d 265 (6th Cir.), cert. denied, 423 U.S. 931, 46 L. Ed. 2d
260, 96 S. Ct. 282 (1975); Gemmel v. Buchkoe, 358 F.2d 338 (6th
Id. at 962. Since Walker was decided in 1983, the federal courts have held that cumulative error
is no longer to be considered a basis for habeas corpus relief. “Post-AEDPA 1, that claim is not
cognizable.” Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011), cert. denied, 132 S.Ct. 2751
(2011), citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005), cert. denied sub nom. Moore v.
Simpson, 549 U.S. 1027 (2006).
Moreland argues that the cumulative effect of counsel's errors
should be considered in determining whether he has demonstrated a
reasonable probability of a more favorable outcome. However,
"post-AEDPA, not even constitutional errors that would not
individually support habeas relief can be cumulated to support
habeas relief." Hoffner v. Bradshaw, 622 F.3d 487, 513 (6th Cir.
2010) (quoting Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)).
Moreland v. Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012), cert. denied sub nom. Moreland v.
The Antiterrorism and Effective Death Penalty Act was effective April 24, 1996.
Robinson, 134 S. Ct. 110 (2013). See also Ahmed v. Houk, 2014 U.S. Dist. LEXIS 81971, *332
(S.D. Ohio 2014).
Perhaps more importantly, Delawder has not demonstrated that the admission of the DNA
evidence against him was in any way a violation of Ohio law. The state court of appeals found no
such violation and its conclusion on that point is binding in federal court.
Delawder also objects that he asked for an evidentiary hearing to rebut the presumption of
correctness attaching to the state court findings (Objections, ECF No. 28, PageID 1313). However,
the Supreme Court has held that district courts may not conduct evidentiary hearings unless they
have previously found, on the basis of the state court record, that the state courts’ findings are
unreasonable in light of the evidence presented in the state courts. Cullen v. Pinholster, 563 U.S.
Finally, Delawder object to denial of a certificate of appealability based generally on the
number of federal cases he has cited. But he has failed to show reasonable jurists would disagree
on the particular issues he has raised.
Having reviewed the Report in light of the Objections, the Magistrate Judge again
respectfully recommends that the Petition be dismissed with prejudice. Because the Magistrate
Judge is not persuaded that reasonable jurists would disagree with this conclusion, Petitioner
should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that
any appeal would be objectively frivolous and therefore should not be permitted to proceed in
February 8, 2018.
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. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days
because this Report is being served by mail. 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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