Wogenstahl v. Warden, Chillicothe Correctional Institution

Filing 26

SECOND SUPPLEMENTAL REPORT - Wogenstahl's Objections are unpersuasive. The Court should overruled them and transfer this case to the Sixth Circuit for a determination under 28 U.S.C. § 2244(b) of whether or not it can proceed. Objections to R&R due by 8/22/2017. Signed by Magistrate Judge Michael R. Merz on 8/8/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JEFFREY A. WOGENSTAHL,
Petitioner,

:

- vs -

Case No. 1:17-cv-298
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

CHARLOTTE, JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.

SECOND SUPPLEMENTAL REPORT

This capital habeas corpus case is again before the Court on the question of whether the
Petition must be transferred to the Sixth Circuit as a second-or-successive habeas application.
After the Magistrate Judge filed a Supplemental Report in support of transfer, Petitioner again
objected (ECF No. 23).

The Warden as responded (ECF No. 25) and Judge Rose has

recommitted the matter (ECF No. 24).

Why the Second-or-Successive Issue is Important and to Whom

Wogenstahl fights very hard against transfer. At this point in time he has filed 156 pages
of briefing on the issue. This is consistent with the behavior of other counsel from the Ohio
Public Defender Death Penalty Department and the Capital Habeas Unit of the Federal Public
Defender for this District. These counsel refuse to acknowledge the dilemma this Court faces in
dealing with second-in-time habeas petitions: if we conclude the applications are not second-or1

successive and litigate them, probably for a number of years, and the circuit court disagrees on
an eventual merits appeal, the time in district court will have been wasted, because we will have
acted without subject matter jurisdiction and everything we have done will be void. Franklin v.
Jenkins, 839 F.3d 465 (6th Cir. 2016); Burton v. Stewart, 549 U.S. 147 (2007). This would be an
obvious waste of scarce judicial resources and would further defeat the State’s interest in
promptly executing the sentence.1 Only the petitioner would benefit from the delay.
On the other hand, if this Court erroneously decides the Petition is second-or-successive,
the Sixth Circuit will quickly correct that error and dismiss the transfer as unnecessary. Jackson
v. Sloan, 800 F.3d 260, 261 (6th Cir. 2015), citing Howard v. United States, 533 F.3d 472 (6th
Cir. 2008); In re: Cedric E. Powell, Case No. 16-3356, 2017 U.S. App. LEXIS 1032 (6th Cir.
Jan. 6, 2017). In the Cedric Powell case, for example, this Court entered the Transfer Order on
April 4, 2016, and the Sixth Circuit had already remanded the case by January 9, 2017. The
Sixth Circuit is even faster on this issue in capital cases. District Judge Dlott filed a transfer
order in the Raymond Tibbetts capital case. In re Raymond Tibbetts, 2017 U.S. Dist. LEXIS
83416 (S.D. Ohio May 30, 2017)(Dlott, J.) The Sixth Circuit decided the second-or-successive
issue in less than sixty days. In re: Raymond Tibbetts, 2017 U.S. App. LEXIS 13664 (6th Cir.
Jul. 24, 2017).
In sum, denial of transfer risks several years of intense litigation which will be useless if
the circuit court decides transfer was required. On the other hand, transferring the case in error
gets quickly corrected by the circuit court.

1

Jeffrey Wogenstahl murdered Amber Garrett in November 1991; his execution is presently scheduled for April 17,
2019, nearly twenty-eight years after the murder.

2

First Objection: Lack of Magistrate Judge Authority to Enter Order
This issue is adequately dealt with in the Supplemental Report (ECF No. 22). The
Magistrate Judge agrees the standard of review is de novo.

Second Objection: The Petition is Not Second of Successive
Subpart 1: Abuse of the Writ Doctrine

Wogenstahl argues his second-in-time Petition is not an abuse of the writ and criticizes
the Magistrate Judge for not applying the abuse of the writ doctrine (Objections, ECF No. 23,
PageID 1299-1300).
The Supplemental Report noted that the Sixth Circuit has employed the abuse of the writ
doctrine in analyzing second-or-successive questions, but noted that § 2244(b), adopted as part
of the AEDPA, “does not codify the old abuse-of-the-writ doctrine.” (ECF No. 22, PageID
1291.) There is new law on this question since the Supplemental Report was filed. In In re:
Raymond Tibbetts, supra, the Sixth Circuit again noted that the abuse of writ doctrine is
generally applied to the second-or-successive issue. Id. at *5. It went on, however, to reject
Tibbetts’ assertion that his lethal injection claims were newly-arising.
Wogenstahl’s claims are not lethal injection grounds for relief, but purport to be for
suppression of favorable evidence under Brady v. Maryland, 373 U.S. 83 (1963)(First Claim);
presentation of perjured testimony under Napue v. Illinois, 360 U.S. 264, 269 (1959)(Second
Claim); and ineffective assistance of trial counsel under Strickland v. Washington, 466 U.S. 668
(1984)(Claim Three).2 All of these claims arose at the time of trial. The fact that Wogenstahl

2

Claim Four is for cumulative error. Wogenstahl has conceded this ground does not state a claim for relief in
habeas at the present time, but is being pleaded in the hope that law will change.

3

has new evidence to support these claims does not make them newly-arising claims. See In re:
Raymond Tibbetts, supra.
Wogenstahl objects that a number of courts have acknowledged that “newly discovered
Brady Material may create a new claim” (Objections, ECF No. 23, PageID 1301, citing Carter v.
Mitchell, 828 F.3d 455, 467 (6th Cir. 2016)3; Gonzales v. Wong, 667 F.3d 965 (9th Cir. 2011). See
also, In re Bowling, 6th Cir. No. 06-5937, 2007 U.S. App. LEXIS 30397, *10 (Sept. 12, 1997)
(the Court determined that three of the five claims raised in Bowling’s petition were not subject
to the 28 U.S.C. § 2244(b) conditions); Tillman v. State, 2005 UT 56, 128 P.3d 1123, 1145
(2005); U.S. ex rel. Reese v. Peters, 713 F. Supp. 1178 (N.D. Ill. 1989).
In Carter the Sixth Circuit affirmed this Court’s denial of a stay and abey order to allow
Carter to “exhaust” new evidence. It specifically disclaimed any adoption of the Ninth Circuit’s
Gonzalez decision. 829 F.3d at 467. It specifically did not find that Carter had a newly-arising
Brady claim based on his new evidence.
In Bowling the Sixth Circuit found that the petitioner could not have brought his Atkins v.
Virginia claim while his first petition was pending because the factual basis for the claim – the
Kentucky courts’ ruling on his Atkins claim – did not exist when he filed his first petition.
Analyzing his five claims individually, it found three were not second or successive and two
claims were. The opinion contains no criticism at all of the district court’s decision to transfer
what turned out to be a mixed petition. In contrast, of course, if the district court had retained
jurisdiction and adjudicated Claims 2 and 5 which were found in Bowling to be second-orsuccessive, its eventual judgment on those claims would have been void for lack of subject
matter jurisdiction.

3

This citation is erroneous. Carter v. Mitchell is reported at 829 F.3d 455.

4

Subpart 2: The Claims in the Petition are New, not Just Old Claims Supported by New
Evidence

Wogenstahl claims in part that his claims are newly-arising because the Department of
Justice concluded in August 2013 that some of the expert testimony at his trial “exceeds the
limits of the science.” (Objections, ECF No. 23, PageID 1302-04.) He argues that the State
should have known this at the time of trial in 1991. No authority is offered for that proposition.
It is certainly true that a great deal of progress has been made in forensic science in the twentyplus years since Wogenstahl was tried.4 But how can the Court credit the claim that the State, at
the time of trial, knew that the forensic science on which it relied would be brought into question
by subsequent research? The “deliberate deception of a court and jurors by the presentation of
known false evidence is incompatible with the rudimentary demands of justice.” Workman v.
Bell, 178 F.3d 759, 766 (6th Cir. 1998), quoting Giglio v. United States, 405 U.S. 150, 153
(1972).

This rule applies to both the solicitation of false testimony and the knowing

acquiescence in false testimony. Workman, 178 F.3d at 766, citing Napue v. Illinois, 360 U.S.
264, 269 (1959). However, to prevail on such a claim, a petitioner must show that the statement
in question was false, that the prosecution knew it was false, and that it was material. Wogenstahl
v. Mitchell, 668 F.3d 307, 323 (6th Cir. 2012), citing Rosenkrantz v. Lafler, 568 F.3d 577, 583-84
(6th Cir. 2009); Brooks v. Tennessee, 626 F.3d 878, 894-95 (6th Cir. 2010); Byrd v. Collins, 209
F.3d 486 (6th Cir. 2000), citing United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989);
United States v. O’Dell, 805 F.2d 637, 641 (6th Cir. 1986).

4

Ironically, because DNA technique had advanced, Wogenstahl asked for re-testing of the blood spot found in his
car which he believed would show the blood was not Amber Garrett’s. Instead, the new DNA testing confirmed the
identification.

5

Subpart 3: Wogenstahl was Diligent in Discovering the New Evidence

The Magistrate Judge has no quarrel with Wogenstahl’s claim, accepted by the Ohio
courts, that he pursued relief on the basis of the new science with due diligence (Objections, ECF
No. 23, PageID 1303-04). But § 2244(b)(2)(B) allows the circuit court (and not this Court) to
consider proven diligence in fact gathering only if
the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.

Wogenstahl does not purport to meet this standard.

Subpart 4: Martinez Excuses Any Failure to Gather Evidence Sooner

Wogenstahl’s fourth subpart relies on Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino
v. Thaler, ___ U.S. ___, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013). In Martinez the Supreme
Court held:
[W]hen a State requires a prisoner to raise an ineffectiveassistance-of-trial-counsel claim in a collateral proceeding, a
prisoner may establish cause for a default of an ineffectiveassistance claim in two circumstances. The first is where the state
courts did not appoint counsel in the initial-review collateral
proceeding for a claim of ineffective assistance at trial. The second
is where appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v. Washington, 466 U.
S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome the
default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim
6

has some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003) (describing standards for
certificates of appealability to issue).
132 S. Ct. at 1318-1319. In Trevino the Court extended Martinez to the Texas system. The
Sixth Circuit has not yet decided whether Martinez and Trevino apply to the Ohio system of
litigating ineffective assistance of trial counsel claims, but this Court “assumes they do”
(Supplemental Report ECF No. 22, PageID 1295). Despite that assumption, the Supplemental
Report found that Martinez and Trevino did not support relief here. Id.
In his Objections, Wogenstahl points to an affidavit of post-conviction counsel, Joseph
Edwards, stating he had neither time nor funds to hire a psychologist, a forensic pathologist, a
crime scene expert, or an eyewitness identification expert.

The Magistrate Judge fails to

understand the relevance of these facts. Martinez and Trevino provide a non-constitutional
exception to the holding in Coleman v. Thompson, 501 U.S. 722, 750 (1991), that ineffective
assistance in post-conviction proceedings will not excuse a procedural default; the exception
applies only to substantial claims of ineffective assistance of trial counsel. Wogenstahl pleads an
ineffective assistance of trial counsel claim, with many, many sub-claims, as his Third Claim for
Relief in this second-in-time petition (ECF No. 1-1, PageID 148-64). Martinez and Trevino
would be applicable, if at all, to excuse post-conviction counsel Edwards’ failure to raise any of
these sub-claims in post-conviction. But Martinez and Trevino have nothing to do with
whether a second-in-time petition is second-or-successive.

If the circuit court allows

Wogenstahl to proceed and the Warden pleads that any of the sub-claims in the Third Claim for
Relief are procedurally defaulted, at that point it will be pertinent to consider whether Mr.
Edwards’ failure to raise any of these sub-claims was ineffective assistance.
Wogenstahl also criticizes the Supplemental Report for not giving weight to the Affidavit
7

of Gregory Meyers, Assistant Ohio Public Defender who became habeas counsel to Wogenstahl
while his first petition was pending a report and recommendations on the merits (Affidavit, ECF
No. 19-1). Most of the Affidavit reports Meyers’ opinion of the performance of his habeas cocounsel, John Gideon. If Meyers’ statements are accepted as true,5 Gideon performed deficiently
in representing Wogenstahl for part of the time he represented Wogenstahl on his fist petition.
Again, the Magistrate Judge does not understand what relationship this has to Martinez and
Trevino.

It does not involve any proof that Wogenstahl’s failure to raise any particular

ineffective assistance of trial counsel claim in post-conviction was the result of ineffective
assistance of post-conviction trial counsel, who was Joseph Edwards, not John Gideon.
Wogenstahl’s present counsel posit the finding of exhibits now tendered in support of his
Third Claim for Relief at a time when his first habeas petition was on appeal and assert that he
would have had no options at that point, that his “claims would have been [procedurally]
defaulted until Martinez and Trevino were decided.” (Objections, ECF No. 23, PageID 1310.)
Wogenstahl could have presented the new evidence to the Sixth Circuit and asked for a remand
and an opportunity to reopen the judgment; if that relief had been granted, there would be no
second-or-successive question in the case.
In support of the proposition that his ineffective assistance of trial counsel claim is
substantial, Wogenstahl points to the February 13, 2015, Affidavit of Carl J. Schmidt (ECF No.
23, PageID 1328-31) and March 13, 2014, report of Forensic Science Consultant Gary Rini (ECF
No. 23, PageID 1332-1338), and asks “How can it be that trial counsel (and in turn postconviction counsel) were not ineffective for failing to bring forth evidence that contradicted the

5

This judge has deep respect for Mr. Meyers and his work on behalf of death row inmates over many years and has
no reason to doubt his observations.

8

State’s entire theory at trial?” (Objections, ECF No. 23, PageID 1311.) Whether or not there is a
substantial claim of ineffective assistance of trial counsel is not at issue at this juncture in the
case. Martinez and Trevino in no way speak to the second-or-successive question; they only
address ineffective assistance of post-conviction counsel as an excusing cause to allow an
otherwise defaulted ineffective assistance of trial counsel claim to be presented. The argument
about Martinez and Trevino is a red herring at this point in the case – Wogenstahl has presented
no authority even suggesting those cases can help a habeas petitioner avoid the second-orsuccessive bar.
Conclusion
Wogenstahl’s Objections are unpersuasive.

The Court should overruled them and

transfer this case to the Sixth Circuit for a determination under 28 U.S.C. § 2244(b) of whether
or not it can proceed.

August 8, 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
9

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).

10