Littlepage v. Warden, Chillicothe Correctional Institution

Filing 34

ORDER adopting Report and Recommendations re 24 29 Report and Recommendations; the Petition is dismissed with prejudice. Signed by Judge Michael R. Barrett on 7/13/20. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Daniel Littlepage,
Petitioner,
v.

Case No. 1:16cv1005

Warden,
Chillicothe Correctional Institution,

Judge Michael R. Barrett

Respondent.
ORDER
This matter is before the Court on the Magistrate Judge’s December 20, 2017
Report and Recommendation (“R&R”) (Doc. 24) and February 9, 2018 Order Denying
Motion for Stay and Abeyance; Supplemental R&R (Doc. 29).

Petitioner has filed

objections to the Magistrate Judge’s R&Rs. (Docs. 27, 31).
I.

BACKGROUND

Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254. In the
underlying state court proceedings, Petitioner was indicted for one count of murder and
one count of aggravated murder, both with firearm specifications, arising out of the death
of his brother Larry Littlepage. Petitioner plead guilty to aggravated murder and one
firearm specification.

Petitioner was sentenced to life imprisonment with parole

eligibility at twenty years, plus three consecutive years for the firearm specification.
Petitioner claims three grounds for relief: (1) his guilty plea was invalid; (2)
ineffective assistance of appellate counsel; and (3) cumulative error. Petitioner also
claims that he is actually innocent of the murder of his brother Larry because the murder
was committed by his other brother, Gary.

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In the December 20, 2017 R&R, the Magistrate Judge recommends denying the
petition with prejudice. In the February 9, 2018 Order, the Magistrate Judge denied
Petitioner’s Motion for Stay and Abeyance. 1 In the Supplemental R&R, the Magistrate
Judge again recommends that the Petition be dismissed with prejudice. The Magistrate
Judge also recommends that Petitioner be denied a certificate of appealability, and that
this Court certify to the Sixth Circuit that any appeal would be objectively frivolous and
should not be permitted to proceed in forma pauperis.
II.

ANALYSIS
A. Standard of review

When timely objections to a magistrate judge’s order are received on a dispositive
matter, the assigned district judge “must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). After
review, the district judge “may accept, reject, or modify the recommended decision;
receive further evidence; or return the matter to the magistrate judge with instructions.”
Id.; see also 28 U.S.C. § 636(b)(1). General objections are insufficient to preserve any
issues for review: “[a] general objection to the entirety of the Magistrate [Judge]’s report
has the same effect as would a failure to object.” Howard v. Sec'y of Health & Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991). Nevertheless, the objections of a petitioner
appearing pro se will be construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94
(2007) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

1

This Motion was never filed as a separate docket entry and only appears in the record as
an attachment to the Petition.
2

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B. Guilty Plea
Petitioner makes a number of arguments related to his guilty plea.

The

Magistrate Judge explained that on appeal in the state court proceedings, Petitioner had
already claimed that his plea was not made knowingly, intelligently, and voluntarily. As
part of the appeal of his post-conviction petition, the First District Court of Appeals
concluded that there was no support for Petitioner’s claim that his guilty plea was the
unknowing, involuntary, or unintelligent product of his trial counsel's ineffectiveness, the
trial judge's predisposition against him, prosecutorial misconduct, or any medication that
he was taking. The Magistrate Judge found that this conclusion was not based on an
unreasonable determination of the facts based on the evidence presented.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §
2254 only permits habeas relief if the state court judgment “resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established federal
law, as determined by the Supreme Court of the United States” or “resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d). Clearly established
federal law “refers to the holdings, as opposed to the dicta, of [the Supreme Court's]
decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S.
362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
In his Objections, Petitioner argues that there is evidence that he overdosed on
medications on two occasions which demonstrates that his guilty plea was not made
knowingly, intelligently, and voluntarily.
3

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The Magistrate Judge addressed the first overdose, which occurred on July 20,
2013. Petitioner was found unconscious in the chapel of Mt. Airy Hospital. Next to
Petitioner was a digital recorder which contained a lengthy confession to his brother’s
murder. The Magistrate Judge noted that Petitioner did not plead guilty until five months
later in December of 2013. As to the second overdose, it appears that Petitioner is
referring to an overdose on the morning of his arraignment. (Doc. 31-1, PAGEID #
1354). However, that arraignment took place on July 22, 2013. (Id.) Therefore, the
same rationale applies to the second overdose as applies to the first overdose. As the
Magistrate Judge explained, Petitioner’s conviction was not based upon the confessions
which took place before or after his overdose, but was based upon his statements on the
record during his plea colloquy on December 10, 2013.

As the Magistrate Judge

pointed out, Petitioner specifically stated that he was not under the influence of drugs and
alcohol when he entered his plea.

(Doc #: 13-2, PAGEID # 1088). 2

Therefore,

Petitioner’s own statements in the transcript show that he knowingly and voluntarily
chose to plead guilty. A plea-proceeding transcript which suggests that a plea was
made voluntarily and knowingly creates a “heavy burden” for a petitioner seeking to
overturn his plea. Garcia v. Johnson, 991 F.2d 324, 326–28 (6th Cir. 1993). Petitioner
has not met that burden here. Accordingly, even if Petitioner could have shown that his
confessions were made while he was under the influence of drugs, and were therefore
constitutionally inadmissible, Petitioner nevertheless cannot prevail on his habeas claim
since the record established that his guilty plea was in fact voluntary. Accord Reed v.
2

The Magistrate Judge stated that Petitioner’s statements were sworn. (Doc. 29,
PAGEID# 1293). However, there is nothing in the record showing that Petitioner was sworn in
during the plea hearing.
4

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Henderson, 385 F.2d 995, 997 (6th Cir. 1967).
Similarly, while Petitioner argues that his guilty plea was coerced by his attorneys
with the threat of the death penalty, a solemn plea of guilty presents a “formidable barrier”
to a subsequent claim to the contrary. Blackledge v. Allison, 431 U.S. 63, 73, 97 S.Ct.
1621, 52 L.Ed.2d 136 (1977). Petitioner explains that he never received discovery or
Brady material from the prosecutors, so he had to trust the advice of his attorneys. 3
However, the Sixth Circuit has held that “a prosecutor's failure to disclose arguably
exculpatory Brady material prior to plea bargaining did not render the defendant's guilty
plea involuntary where a factual basis for the plea was established at the plea
proceeding.” Robertson v. Lucas, 753 F.3d 606, 621 (6th Cir. 2014) (citing Campbell v.
Marshall, 769 F.2d 314, 318, 323-24 (6th Cir.1985)).
Next, Petitioner claims that his plea was invalid because Ohio Rule of Criminal
Procedure 11 requires that during the plea colloquy he plead guilty separately to
aggravated murder and the firearm specification. However, as the Magistrate Judge
explained, the First District found that a separate plea to the gun specification was not
necessary under Rule 11. (See Doc. 13, PAGEID# 552). 4 Citing State v. White, 2002

3

Petitioner also accuses Judge Nadel—who presided over his criminal proceedings—of
judicial bias and committing fraud upon the court by withholding or encouraging the withholding
of this discovery or Brady material from him. Petitioner has not provided anything more than this
unsupported allegation to support his claim of bias. While Petitioner does argue that Judge
Nadel’s denial of his Motion for Delayed Appeal demonstrates bias, the Magistrate Judge
explained that Petitioner was ultimately granted his delayed appeal by an appropriate judge.
4

Petitioner also argued in his objections that his guilty plea was not valid because the plea
was not accepted by a three-judge panel. As the Magistrate Judge explained in his
Supplemental R&R, Petitioner’s argument relies on State v. Parker, 95 Ohio St. 3d 524, 525, 769
N.E.2d 846, 848 (Ohio 2002), in which the Ohio Supreme Court held a “defendant charged with a
crime punishable by death who has waived his right to trial by jury must . . . have his case heard
5

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WL 31169182 (Ohio Ct. App. 2002), the First District explained that Ohio Criminal Rule
11(C)(3) only requires a defendant to enter a separate plea to a death-penalty
specification. (Id.) This Court must respect this determination unless there was a
violation of due process. Riggins v. McMackin, 935 F.2d 790, 795 (6th Cir. 1991).
Therefore, the sole inquiry is whether Petitioner’s guilty plea comported with the
protections of due process. Id.
At the plea hearing, the judge reviewed the Entry Withdrawing Plea of Not Guilty
and Entering Plea of Guilty, which was signed by Petitioner. (Doc. 13-2, PAGEID#
1087). The judge also had the following exchange with Petitioner:
THE COURT: And you understand that by pleading guilty, you make a
complete admission of your guilt. Do you understand that? The only
thing left to do will be to sentence you, which could be as I just indicated.
You understand that?
THE DEFENDANT:

Yes, sir.

THE COURT: And by pleading guilty, you waive the following rights. By
pleading guilty, you waive the following rights: Again, you waive your
right to a jury trial. You waive your right to confront witnesses against
you. You waive your right to have subpoenaed witnesses to testify in your
favor. And you waive your right to require the state to prove your guilt
beyond a reasonable doubt at a trial in which you cannot be compelled to
testify against yourself.
Do you understand the rights you waive, or give up, by pleading guilty?
THE DEFENDANT:

Yes, sir.

(Doc. 13-2, PAGEID# 1087-88). Finally, the judge reviewed the potential penalties for

and decided by a three-judge panel even if the state agrees that it will not seek the death
penalty.” As the Magistrate Judge also explained, a three-judge panel is not required where the
defendant is not charged with a death penalty specification. See State v. Butler, 2018 WL
4232369, *3 (Ohio Ct. App. 2018). Here, Petitioner was charged with firearm specifications, not
a death penalty specification.
6

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both the aggravated murder and the gun specification. (Doc. 13-2, PAGEID# 1086).
This Court concludes that the plea colloquy supports the state court’s determination that
Petitioner’s plea was knowing and voluntary. Therefore, the Court finds no error in the
Magistrate Judge’s conclusion that Petitioner’s First Ground for Relief is without merit.
Accordingly, Petitioner’s Objections on this point are OVERRULED.
C. Ineffective assistance of appellate counsel
Claims of ineffective assistance of appellate counsel are subject to the two-prong
Strickland test. Evans v. Hudson, 575 F.3d 560, 564 (6th Cir. 2009). First, Petitioner
must demonstrate that, considering all of the circumstances, counsel’s performance was
so deficient that the attorney was not functioning as the “counsel” guaranteed by the
Sixth Amendment.

Strickland v. Washington, 466 U.S. 668, 687 (1984).

Second,

Petitioner must show that such performance prejudiced his defense. Id. Counsel's
failure to raise an issue on appeal could only be ineffective assistance if there is a
reasonable probability that inclusion of the issue would have changed the result of the
appeal. McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir. 2004) (citing Greer v. Mitchell,
264 F.3d 663, 676 (6th Cir. 2001).
The Magistrate Judge noted that in deciding Petitioner’s ineffective assistance of
appellate counsel claim, the First District found that by his knowing, voluntary and
intelligent

guilty

plea,

Petitioner

waived

his

proposed

actual-innocence,

diminished-capacity, and weight-and-sufficiency claims, which he maintains his
appellate counsel should have raised on appeal. As a result, the First District concluded
that his appellate counsel cannot be said to have been ineffective in failing to raise the
7

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claims on appeal. The Magistrate Judge determined that this conclusion was not an
objectively unreasonable application of clearly established Supreme Court precedent.
The Court finds no error in the Magistrate Judge’s conclusion that Petitioner’s Second
Ground for Relief is without merit.
D. Cumulative error
As the Magistrate Judge explained, under the Antiterrorism and Effective Death
Penalty Act, a claim of cumulative error is not cognizable in habeas corpus.

See

Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006) (“[T]he law of this Circuit is that
cumulative error claims are not cognizable on habeas because the Supreme Court has
not spoken on this issue.”); Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005) (“[W]e
have held that, post-AEDPA, not even constitutional errors that would not individually
support habeas relief can be cumulated to support habeas relief.”). Therefore, the Court
finds no error in the Magistrate Judge’s conclusion that Third Ground for Relief is without
merit. Accordingly, Petitioner’s Objections on this point are OVERRULED.
E. Actual innocence
In his Objections, Petitioner claims that the Magistrate Judge attempts to preclude
a letter from Linda Freeman dated July 22, 2013 which shows that he is actually
innocent. However, as the Magistrate Judge explained, the letter is unsworn and was
not made a part of the state court record. 5 The Magistrate Judge concluded that this
Court is precluded from considering the letter by Cullen v. Pinholster, 563 U.S. 170, 182,
131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).
5

While the Magistrate Judge stated that this letter was already in existence months before
Petitioner waived his right to present evidence and plead guilty on December 10, 2013, it appears
that the letter was not sent to Petitioner until June 23, 2015. (Doc. 31-1, PAGEID# 1361).
8

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In Pinholster, the Supreme Court held that “review under § 2254(d)(1) is limited to
the record that was before the state court that adjudicated the claim on the merits.” 131
S.Ct. at 1398.

Thus, “evidence introduced in federal court has no bearing on §

2254(d)(1) review. If a claim has been adjudicated on the merits by a state court, a
federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that
was before that state court.” Id. at 1400.
As this Court has recognized, district courts which have addressed the issue have
unanimously held that Pinholster’s limitation on new evidence does not apply to claims of
actual innocence when it is used to excuse a procedural default of another claim.
Johnson v. Warden, Chillicothe Corr. Inst., No. 2:16-CV-985, 2018 WL 9669761, at *5
(S.D. Ohio June 26, 2018), objections overruled, No. 2:16-CV-985, 2018 WL 9662539
(S.D. Ohio Sept. 20, 2018) (citing Vinson v. Mackie, Case No. 14-cv-14542, 2016 WL
6595021, at *1 (E.D. Mich. Nov. 8, 2016) (collecting cases)).

However, as the

Magistrate Judge explained, in this case, Petitioner has not presented this type of
“gateway” innocence claim. Instead, Petitioner brings a freestanding innocence claim.
As the Sixth Circuit has noted, the Supreme Court has yet to determine whether a
federal habeas court may entertain a freestanding innocence claim. Stojetz v. Ishee,
892 F.3d 175, 208 (6th Cir. 2018), cert. denied, 139 S. Ct. 1262 (2019) (citing House v.
Bell, 547 U.S. 518, 554-55 (2006)). However, the Sixth Circuit explained that if such a
claim were cognizable, “the showing required for such a hypothetical claim would be
greater than that required for a gateway-innocence claim.” Id. (citing House, 547 U.S. at
555). Accordingly, if a petitioner cannot “meet the standard for a gateway-innocence
9

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claim—viz., establishing that ‘it is more likely than not that no reasonable juror would
have found [him] guilty beyond a reasonable doubt[,]’”—he cannot meet the higher
burden which would apply to a free-standing claim. Id. (quoting Schlup v. Delo, 513
U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)).
Here, Petitioner cannot meet the lower standard for a gateway-innocence claim
based on the letter from Linda Freeman dated July 22, 2013. In the letter, Freeman
states that she and her husband were parked outside Larry Littlepage’s house on the
night of his murder. (Doc. 31-1, PAGEID# 1363). Freeman writes that she heard
arguing and three “pops” which sounded like gun shots. (Id.) Freeman states that she
and her husband observed a woman and man come in and out of the house several
times; and then leave and return to the house in a silver car. (Id.) Freeman also states
that she observed the man and woman load things into the silver car and throw things
into the woods next to the house. (Id.) Freeman explained that she did not come
forward with this information sooner because her husband was concerned they would be
retaliated against. (Id.) However, there is nothing in the letter which would constitute
“substantial evidence pointing to a different suspect.”

House, 547 U.S. at 554.

Freeman merely saw other people at Larry Littlepage’s house on the day he died. This
evidence does not exclude the possibility that Petitioner was also at the house at some
point. The Court concludes that the evidence does not demonstrate that “it is more
likely than not that no reasonable juror would have found [the] petitioner guilty beyond a
reasonable doubt.”
Therefore, the Court finds no error in the Magistrate Judge’s conclusion that even
10

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if such a claim were permissible, Petitioner has not established a claim of actual
innocence. Accordingly, Petitioner’s Objections on this point are OVERRULED.
F. Stay and Abeyance
The Magistrate Judge noted that there was never a ruling on Petitioner’s Motion
for Stay and Abeyance, which was filed as an attachment to his Petition (Doc. 1-3). The
Magistrate Judge explained that Petitioner’s request for stay and abeyance would need
to be premised on a finding by this Court that any claim was truly unexhausted. 6
However, the Magistrate Judge found that Petitioner has not brought a claim which
cannot be decided due to lack of exhaustion.
In his Objections, Petitioner argues that there is no basis to deny his Motion for
Stay and Abeyance. Petitioner maintains that there are documents which were a part of
the state court record which should have been made a part of the record in this case, so
therefore there are claims which have not been exhausted. This issue regarding the
completeness of the record was addressed by the Magistrate Judge. (See Doc. 20,
PAGEID# 1189).

However, the issue here is the application of the exhaustion doctrine.

“Before a federal court may grant habeas relief to a state prisoner, the prisoner must
exhaust his remedies in state court.” O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999). “In other words, the state prisoner must give the state
courts an opportunity to act on his claims before he presents those claims to a federal
court in a habeas petition.” Id. As the Magistrate Judge explained, there is no dispute

6

Under Rhines v. Weber, 544 U.S. 269 (2005), a petition should be stayed and held in
abeyance only where (1) the petitioner’s unexhausted claims are not plainly meritless, and (2)
there was good cause for failing to present the claims to the state court before petitioning for
habeas corpus relief in this Court.
11

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that Petitioner’s claims have been exhausted; and therefore, a stay of his Petition is
unnecessary. Therefore, the Court finds no error in the Magistrate Judge’s denial of
Petitioner’s Motion for Stay and Abeyance as moot.
G. Certificate of appealability
Petitioner argues that a certificate of appealability should issue because in
reviewing his in forma pauperis motion, the Magistrate Judge determined the Petition
was not too frivolous to order an answer.
A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When a court denies a habeas claim on the merits, the substantial showing threshold is
met if the petitioner demonstrates that reasonable jurists would find the court’s
assessment of the claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473,
484-85 (2000). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court's resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029, 1034, 154
L. Ed. 2d 931 (2003).
As the Magistrate Judge explains, the question of whether a petition is sufficient to
warrant an answer and the question whether, after the case has been decided, an appeal
should be permitted to proceed in forma pauperis are different questions. The Court
finds no error in the Magistrate Judge’s conclusion that Petitioner should be denied a
certificate of appealability.
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Accordingly, it is hereby ORDERED that:
1. Petitioner’s objections are OVERRULED and the Magistrate Judge’s December
20, 2017 R&R (Doc. 24) and Supplemental R&R (Doc. 29) are ADOPTED;
2. The Petition is DISMISSED with PREJUDICE;
3. Petitioner’s Objections to the February 9, 2018 Order Denying Motion for Stay and
Abeyance (Doc. 31) are OVERRULED;
4. Because reasonable jurists would not disagree with this conclusion, Petitioner is
denied a certificate of appealability; and
5. With respect to any application by Petitioner to proceed on appeal in forma
pauperis, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of
this Order would not be taken in “good faith,” and, therefore, Petitioner is DENIED
leave to appeal in forma pauperis upon a showing of financial necessity. See
Fed. R. App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett
United States District Judge

13