Dalmida v. Warden, Toledo Correctional Institution

Filing 21

DECISION AND ORDER DENYING MOTION FOR DISCOVERY 19 . Signed by Magistrate Judge Michael R. Merz on 3/26/2019. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
GRADY DALMIDA,
Petitioner,

:

- vs -

Case No. 1:17-cv-488
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

Warden,
Toledo Correctional Institution
:
Respondent.

DECISION AND ORDER DENYING MOTION FOR DISCOVERY

Upon transfer of the Magistrate Judge reference in this case, the undersigned ordered
petitioner to particularize the formal requests made in the Petition for discovery and an evidentiary
hearing (ECF No. 18). Petitioner has responded with his Motion for Discovery Permissible for
Consideration Under Cullen v. Pinholster, 563 U.S. 170 (2011) (ECF No. 19). Respondent
opposes the Motion (ECF No. 20) and Petitioner has not filed a reply memorandum within the
time allowed by S. D. Ohio Civ. R. 7.2. Accordingly, the Motion for Discovery is ripe for decision.
Dalmida seeks production of “the case notes, particle images, and X-ray spectra from the
State’s gunshot residue testing.” (ECF No. 19, PageID 1426.) He believes those materials may
be evidence the State should have turned over before trial because of its obligations under Brady
v. Maryland, 373 U.S. 83 (1963). He hypothesizes that if the particles removed from his hands
after the crime are definitively shown not to have been gunshot residue, they are exculpatory or at
least would have provided significant impeachment of the State’s gunshot residue expert.

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Respondent notes the general good cause standard for discovery in habeas (ECF No. 20,
PageID 1429, citing Bracy v. Gramley, 520 U.S. 899 (1997); Byrd v. Collins, 209 F.3d 486, 51516 (6th Cir. 2000); and Stanford v. Parker, 266 F.3d 442 (6th Cir. 2001)).
Respondent also notes that Petitioner’s Brady claim was presented to the Ohio courts and
decided adversely to him by both the Hamilton County Court of Common Pleas and the First
District Court of Appeals. In post-conviction, Dalmida presented the opinion of former FBI agent
John Kilty (Affidavit of John W. Kilty, attached to Supplement to Petition for Post-Conviction
Relief, State Court Record ECF No. 13, PageID 434-38). At the time of his Affidavit in 2015,
Kilty had been retired from the FBI for approximately twenty-eight years. Prior to retirement, he
had worked at the FBI Laboratory for twenty-two years; since retirement his practice has been
limited to consultation and expert testimony. He read the report of Hamilton County Coroner’s
Crime Laboratory trace evidence examiner Michael Trimpe in this case, but not any of the
background work product behind it (the materials now sought in discovery), without which he
averred Trimpe’s conclusion that particles lifted from Dalmida’s hands “looked like gunshot
residue” cannot be verified. Id. at ¶ 11, PageID 436. Kilty noted that Trimpe had eliminated
fireworks and brake pads as possible sources of the particles, but opined that “[e]liminating two
possible sources does not eliminate other possible sources, even if such elimination was [sic] a
possibility.” A key paragraph reads:
9. In the absence of any three-component particles or additional
two-component (lead-antimony, barium-antimony) particles, it is
not scientifically supportable to say that the "several particles" lifted
from Mr. Dalmida's hands were "gunshot residue." It is also not
scientifically supportable to say that that this minimal population of
lead-barium particles "looks like gunshot residue." While leadbarium particles can be a part of a population of gunshot residue, the
absence of three-component particles and the other two-component
particles (lead-antimony, barium-antimony) is, in my opinion,
seriously inconclusive in determining if such a minimal population
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should be considered as looking like gunshot residue or primer
residue. ["Gunshot residue" and "primer residue" are used
interchangeably in this affidavit as they are in the Laboratory
Report.]
(ECF No. 13 at PageID 435.) In addition, Kilty criticized Trimpe’s language as expressing more
scientific certainty than was possible and how difficult it would be to come to scientific
conclusions without examining the work product behind Trimpe’s report.
The First District Court of Appeals rejected Dalmida’s Brady claim. State v. Dalmida,
Case No. C-160674 (1st Dist. Dec. 29, 2017)(unreported; copy at State Court Record, ECF No. 13,
Ex. 32, PageID 523, et seq.), appellate jurisdiction declined, 152 Ohio St. 3d 1480 (2018). It
acknowledged the Kilty Affidavit, but concluded it did not show that the underlying work product
was Brady material.
Moreover, the forensics expert's affidavit leaves unaffected the other
evidence adduced at trial showing Dalmida's participation in the
assault, armed robbery, and shooting of the victim, including the
presence of the victim's blood on Dalmida's clothing and the victim's
testimony that Dalmida had, as his accomplice displayed a handgun,
demanded drugs and money, torn the victim's clothing, taken the
victim's cell phone, and urged his accomplice to shoot the victim.
See Dalmida at ¶ 11, 14-19 and 29.[1] Thus, Dalmida could not be
said to have been denied a fair trial by the state's alleged failure to
disclose the documents underlying the gunshot-residue analysis,
because that evidence was not "material," when it could not
"reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict[s]." See Kyles v. Whitley,
514 U.S. 419, 434-436, 115S.Ct. 1555, 131 L.Ed. 490 (1995); see
also State v. Johnston, 39 Ohio St.3d 48, 529 N.E.2d 898 (1988),
paragraph five of the syllabus.
Dalmida, supra, at ECF No. 13, PageID 524.
When a state court decides the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision is
1

Referring to State v. Dalmida, 1st Dist. Hamilton No. C-140517, 2015-Ohio-4995, appeals not accepted, 145
Ohio St.3d 1458, 2016-Ohio-2807, 49 N.E.3d 320.

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contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86,
100(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002);
Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
To prevail on a Brady claim, the petitioner must show that the withheld exculpatory
evidence was material; that is, it “could reasonably be taken to put the whole case in such a
different light as to undermine the confidence in the verdict.” VanHook v. Bobby, 661 F.3d 264,
267, (6th Cir. 2011), quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995).
Respondent is incorrect in claiming the withheld evidence is irrelevant.

However,

Petitioner has failed to show that the First District’s decision here is an objectively unreasonable
application of Kyles. There was a great deal of other evidence of Dalmida’s guilt beyond the trace
examiner’s testimony. The Kilty Affidavit does not contradict the trial testimony of the trace
examiner, but rather questions its appropriateness as scientific testimony. If the materials sought
were produced and tested and gunshot residue could then be definitively eliminated as a source for
the particles on Mr. Dalmida’s hands, that would at most cause the gunshot residue testimony to
drop out of the case. That would not be enough to undermine confidence in the verdict.
Accordingly, the Motion for Discovery is DENIED.

March 26, 2019.
s/ Michael R. Merz
United States Magistrate Judge

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