Hendrix v. Warden, Lebanon Correctional Insititution

Filing 126

DECISION AND ORDER - Petitioner's Motion for Stay and Abeyance (ECF No. 117) is DENIED. Signed by Magistrate Judge Michael R. Merz on 3/14/2024. (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
D’JANGO HENDRIX,
Petitioner,

:

- vs -

Case No. 1:17-cv-623
District Judge Douglas R. Cole
Magistrate Judge Michael R. Merz

WARDEN, Lebanon Correctional
Institution,
:
Respondent.

DECISION AND ORDER

This habeas corpus case, brought pro se by Petitioner D’Jango Hendrix under 28 U.S.C. §
2254, is before the Court on Petitioner’s Motion for Stay and Abeyance (ECF No. 117), filed and
served January 26, 2024. On the Court’s order, the parties have briefed the Motion (Response in
Opposition, ECF No. 120; Reply, ECF No. 125), making it ripe for decision.

Petitioner’s Motion

Hendrix seeks a stay in order to exhaust his Third Ground for Relief1 by litigating a delayed
motion for new trial. Hendrix had not filed that motion as of the date of filing his Motion for Stay

1

Hendrix claims in his Third Ground that he received ineffective assistance of trial counsel when his trial attorney
failed to present medical and forensic ballistics evidence (Motion, ECF No. 117, PageID 2731, n. 1).

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and has not done so as of the filing of this Order. Instead, he requested that he be given sixty days
“from District Judge Cole’s Decision and Order” to do so (ECF No. 117, PageID 2736).
Presumably he means sixty days from whenever Judge Cole decides any objections Hendrix may
file to a Magistrate Judge’s order denying the stay. He says he will file a Motion for Leave to File
New Trial [Motion] Instanter pursuant to Crim. R. 33 (A)(1), [and] (E)(5), in the Hamilton County
Common Pleas Court and present in that new trial motion the following Grounds for Relief:
One: Trial counsel was ineffective for failing to present medical and
ballistic forensic witnesses.
Two: Trial Counsel was ineffective for failure to Investigate,
Compel the testimony of Dr. Timothy Pritts.
Three: Trial Counsel was ineffective for failure to Discover,
Investigate, Compel the testimony of Dr. Bryce Robinson.
Three:[sic] Trial Counsel was ineffective for failure to Discover,
Investigate, Compel the testimony of Dr. Alex Chang.
Four: Trial Counsel was ineffective for failure to Discover,
Investigate, Compel the testimony of Dr. D A Millar.
Five: Trial Counsel was ineffective for failure to Discover,
Investigate, Compel the testimony of Dr. Priya S. Prakas.
Six: Trial counsel was ineffective for failing to investigate and
present expert on bullet trajectories
(Motion, ECF No. 117, PageID 2735). Hendrix relies on State v. Bethel, 167 Ohio St. 3d 362
(2022), as the case that makes available the remedy he now seeks to exhaust.

The Warden’s Response in Opposition

The Respondent opposes the Motion for Stay. He acknowledges that Bethel “recently
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cleared away some of the procedural hurdles to having new evidence considered in a delayed
motion for a new trial.” (Response, ECF No. 120, PageID 2782). However, he asserts Hendrix
cannot meet the remaining hurdles because his motion for new trial will be meritless and he cannot
meet the remaining timeliness standard under Ohio law.

Petitioner’s Reply

Hendrix replies in support of his Motion for Stay that his new evidence has merit and that
he was unavoidably prevented from discovering this evidence by the ineffective assistance of his
trial counsel (ECF No. 125).

Analysis

Ohio Rule of Criminal Procedure 33 provides in pertinent part:
A) Grounds. A new trial may be granted on motion of the defendant
for any of the following causes affecting materially his
substantial rights:
(1) Irregularity in the proceedings, or in any order or ruling of the
court, or abuse of discretion by the court, because of which the
defendant was prevented from having a fair trial; . . .
(6) When new evidence material to the defense is discovered which
the defendant could not with reasonable diligence have discovered
and produced at the trial. When a motion for a new trial is made
upon the ground of newly discovered evidence, the defendant must
produce at the hearing on the motion, in support thereof, the
affidavits of the witnesses by whom such evidence is expected to be
given, and if time is required by the defendant to procure such
affidavits, the court may postpone the hearing of the motion for such
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length of time as is reasonable under all the circumstances of the
case. The prosecuting attorney may produce affidavits or other
evidence to impeach the affidavits of such witnesses.
(B) Motion for new trial; form, time. Application for a new trial shall
be made by motion which, except for the cause of newly discovered
evidence, shall be filed within fourteen days after the verdict was
rendered, or the decision of the court where a trial by jury has been
waived, unless it is made to appear by clear and convincing proof
that the defendant was unavoidably prevented from filing his motion
for a new trial, in which case the motion shall be filed within seven
days from the order of the court finding that the defendant was
unavoidably prevented from filing such motion within the time
provided herein.
Motions for new trial on account of newly discovered evidence shall
be filed within one hundred twenty days after the day upon which
the verdict was rendered, or the decision of the court where trial by
jury has been waived. If it is made to appear by clear and convincing
proof that the defendant was unavoidably prevented from the
discovery of the evidence upon which he must rely, such motion
shall be filed within seven days from an order of the court finding
that he was unavoidably prevented from discovering the evidence
within the one hundred twenty day period.
(E) Invalid grounds for new trial. No motion for a new trial shall be
granted or verdict set aside, nor shall any judgment of conviction be
reversed in any court because of: . . .
(5) Any other cause, unless it affirmatively appears from the record
that the defendant was prejudiced thereby or was prevented from
having a fair trial.
Crim. R. 33 in this form was adopted by the Ohio Supreme Court pursuant to its authority
to make rules under the Modern Courts Amendment and became effective July 1, 1973. It has
remained in effect in its original form since adoption. Nonetheless a number of Ohio courts had
engrafted onto this language a requirement that a motion for new trial must be presented within a
“reasonable time” after verdict. Respecting that “reasonable time” requirement, the Supreme
Court held in Bethel:
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{¶ 51} Another preliminary issue is whether Bethel waited too long
to file his motion for leave. As noted above, Bethel's counsel
acknowledges that Bethel may have obtained Summary 86 in 2008.
At the latest, Bethel discovered the document in May 2017, when
Withers provided him with an affidavit reiterating the statement
Withers had made to investigators. This means that there was a delay
of at least 16 months—and perhaps much longer—between the
discovery of Summary 86 and the filing of the motion for leave.
{¶ 52} The court of appeals held that it was within the trial court's
discretion to deny Bethel's motion for leave because this delay was
unreasonable. 2020-Ohio-1343 at ¶ 24. In so holding, the court of
appeals followed a rule adopted by most other courts of appeals—
that under Crim.R. 33(B), a defendant seeking leave to file a motion
for a new trial must do so within a reasonable period of time after
discovering the new evidence on which he relies. Id. at ¶ 19; see also
State v. Thomas, 2017-Ohio-4403, 93 N.E.3d 227, ¶ 8 (1st Dist.)
(collecting cases).
{¶ 53} Crim.R. 33(B) does not give a deadline by which a defendant
must seek leave to file a motion for a new trial based on the
discovery of new evidence. The rule states only that a defendant
must show that he was “unavoidably prevented from the discovery
of the evidence upon which he must rely.” Courts nevertheless have
concluded that a convicted defendant must file a motion for leave
within a reasonable period of time after discovering the new
evidence, to prevent defendants from deliberately delaying filing the
motion “in the hope that witnesses would be unavailable or no
longer remember the events clearly, if at all, or that evidence might
disappear.” State v. Stansberry, 8th Dist. Cuyahoga No. 71004, 1997
WL 626063, *3 (Oct. 9, 1997). Bethel offers several reasons why
we should reject this rule. He argues that the rule discourages
defendants from conducting full investigations before seeking a new
trial, ignores the fact that defendants often lack the resources
necessary to seek relief promptly after discovering new evidence,
and wrongly assumes that defendants will delay filing a motion
simply to gain an evidentiary advantage at a potential new trial.
{¶ 54} We need not weigh the pros and cons of requiring defendants
to seek leave to file a delayed motion for a new trial within a
reasonable time after discovering new evidence. We instead must
examine whether the Rules of Criminal Procedure permit trial courts
to impose this additional hurdle on criminal defendants. In doing so,
we apply general principles of statutory construction. See State ex
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rel. Office of Montgomery Cty. Pub. Defender v. Rosencrans, 111
Ohio St.3d 338, 2006-Ohio-5793, 856 N.E.2d 250, ¶ 23. Those
principles instruct that our role is to apply the language in Crim.R.
33(B) as written “without adding criteria not supported by the text.”
State v. Taylor, 161 Ohio St. 3d 319, 2020-Ohio-3514, 163 N.E.3d
486, ¶ 9.
{¶ 55} Crim.R. 33(B), again, does not establish a time frame in
which a defendant must seek leave to file a motion for a new trial
based on the discovery of new evidence. Courts have justified
imposing a reasonable-time filing requirement by relying on
Crim.R. 1(B) and 57(B). See, e.g., Thomas, 2017-Ohio-4403, 93
N.E.3d 227, at ¶ 8; State v. York, 2d Dist. Greene No. 2000 CA 70,
2001 WL 332019, *3-4 (Apr. 6, 2001). But neither of those rules
supports the imposition of a reasonable-time filing requirement.
{¶ 56} Crim.R. 1(B) provides that the Rules of Criminal Procedure
“shall be construed and applied to secure the fair, impartial, speedy,
and sure administration of justice, simplicity in procedure, and the
elimination of unjustifiable expense and delay.” Requiring a
defendant to seek leave to file a motion for new trial within a
reasonable period of time after discovering the new evidence could
help to further some of these objectives, most notably the
elimination of delay. But that does not mean that Crim.R. 1(B)
authorizes a court to narrow a defendant's opportunity to seek a new
trial. Crim.R. 1(B) instructs courts to construe Crim.R. 33(B)—that
is, to explain its meaning. In requiring defendants to seek leave
within a reasonable time after discovering new evidence, courts
have not construed Crim.R. 33(B); they have simply added a
requirement that makes sense to them. Crim.R. 1(B) does not
authorize the creation of a new requirement that has no foundation
within Crim.R. 33(B) itself.
{¶ 57} Crim.R. 57(B) also does not support the creation of a
reasonable-time filing requirement. Crim.R. 57(B) provides that
“[i]f no procedure is specifically prescribed by rule, the court may
proceed in any lawful manner not inconsistent with these rules of
criminal procedure, and shall look to the rules of civil procedure and
to the applicable law if no rule of criminal procedure exists.”
Crim.R. 33(B), of course, already prescribes the circumstances
under which a defendant may seek leave to file a motion for a new
trial. Crim.R. 57(B) does not authorize a court to establish a new
procedure when a rule of criminal procedure already governs.
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{¶ 58} We hold that the court of appeals erred when it held that it
was within the trial court's discretion to deny Bethel's motion for
leave based on Bethel's failure to file the motion within a reasonable
time after discovering Summary 86.
Bethel, supra. Based on Bethel, Hendrix’s proposed Motion for Leave to File a Delayed Motion
for New Trial Instanter will not have to satisfy a “reasonable time” standard.
However, it will have to satisfy the “unavoidably prevented from discovery” standard
which is in the text of Rule 33 and reinforced by Bethel. Hendrix has done little in his current
motion papers to show he can meet that standard and Respondent argues he has not succeeded.
Respondent notes Hendrix is not making a claim under Brady v. Maryland, 373 U.S. 83
(1963), that the State suppressed any of the evidence he now seeks to present. A Brady claim was
at the heart of Bethel, and such a claim obviously gives a petitioner a leg up on the “unavoidably
prevented” test. Hendrix does not have that advantage.
District courts have authority to grant stays in habeas corpus cases to permit exhaustion of
state court remedies in consideration of the AEDPA’s preference for state court initial resolution
of claims. Rhines v. Weber, 544 U.S. 269 (2005). However, in recognizing that authority, the
Supreme Court held:
[S]tay and abeyance should be available only in limited
circumstances. Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the state courts, stay
and abeyance is only appropriate when the district court determines
there was good cause for the petitioner's failure to exhaust his claims
first in state court. Moreover, even if a petitioner had good cause for
that failure, the district court would abuse its discretion if it were to
grant him a stay when his unexhausted claims are plainly meritless.
Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts of the
State"). . . .
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On the other hand, it likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if the
petitioner had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.
Id. at 277-278. “Staying a federal habeas petition frustrates AEDPA’s objective of
encouraging finality by allowing a petitioner to delay the resolution of federal proceedings. Id.
Hendrix has not established good cause for his delay in seeking a new trial and the docket
shows intentionally dilatory litigation tactics. He filed this case in September 2017, more than six
years ago (Petition, ECF No. 1). He filed a Motion to Hold in Abeyance the same day (ECF No.
2). On Petitioner’s motion, the case was stayed to permit exhaustion from September 15, 2018,
until April 2, 2020 (ECF Nos. 15, 20). On August 31, 2021, District Judge Black again stayed the
case to permit exhaustion (ECF No. 37). In June, 2022, the Magistrate Judge reference was
transferred to the undersigned who dissolved the stay, again at Petitioner’s request (ECF No. 40).
After a good deal more motion practice regarding timing, Petitioner finally filed his Traverse
(Reply) on April 17, 2023 (ECF No. 79). The undersigned then filed a dispositive Report and
Recommendations on May 5, 2023 (ECF No. 88), and after recommittal a Supplemental Report
reaching the same conclusion (ECF No. 107). Petitioner finally filed Objections after four
extensions of time to do so (ECF No. 116). This rendered the case ripe for decision by Judge Cole
until Hendrix filed the instant third motion for stay.
During all this time Hendrix has not filed for leave to file a new trial motion in the Common
Pleas Court. Although his most recent report from Frank Miller is dated the day before this motion,
he had an original report from Miller in 2019 and, as Respondent points out, the new report adds

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little or nothing. He has had the admissions2 from trial attorney Forg on which he relies to prove
ineffective assistance of trial counsel even longer (See Motion for Post-Conviction Relief, State
Court Record, ECF No. 24).
Whether his Motion for Leave to File a Delayed Motion for New Trial is likely to succeed
is a question which ought to be decided in the first instance by the Ohio courts which will also
have to decide if he was unavoidably prevented from filing that motion. If those courts eventually
grant him a new trial and he is acquitted, the case will be over. If they grant him a new trial and
he is again convicted, the statute of limitations will run from the finality of that judgment and he
will be able to file a new petition for habeas corpus without satisfying the second or successive
hurdle. If his Motion for New Trial is denied and this case has been decided adversely to his
claims in the meantime, he will indeed be barred by the statute of limitations from amending the
Petition in this case. But that will be a direct consequence of his own lack of diligence in pursuing
these claims. The Court is not required to protect Petitioner’s ability to litigate by granting
repeated stays.
Petitioner’s Motion for Stay and Abeyance is DENIED.
March 14, 2024.
s/ Michael R. Merz
United States Magistrate Judge

2

The purported Affidavit from Attorney Forg attached to the instant Motion is partial, unsigned, and not otherwise
authenticated.

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