Stites v. Dayton Correctional Institute

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 13 Report and Recommendations. Accordingly, Petitioners request to amend is denied. This renders her request for a stay moot.Having reviewed Petitioners Objections de novo, the Court finds they are without merit and are hereby overruled. The Report is adopted and the Clerk is directed to enter judgment dismissing the Petition with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner is denied a certificate of appealability and the Court certifies to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Signed by Judge Susan J. Dlott on 1/6/2022. (wam)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 1:21-cv-00224-SJD-MRM Doc #: 15 Filed: 01/07/22 Page: 1 of 5 PAGEID #: 244

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ANGELA M. STITES,
Petitioner,

:

- vs -

Case No. 1:21-cv-224
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

SHELBIE SMITH, Warden,
Dayton Correctional Institution,
:
Respondent.

DECISION AND ORDER

This habeas corpus case, brought pro se by Petitioner Angela Stites under 28 U.S.C. §
2254, is before the Court on Petitioner’s Objections (ECF No. 14)1 to the Magistrate Judge’s
Report and Recommendations recommending that the Petition be dismissed with prejudice (ECF
No. 13).
A litigant who is the subject of an adverse report from a Magistrate Judge is entitled to de
novo review by the assigned District Judge of any portion of the report to which substantial
objection is made. The Court has conducted that review and its conclusions are embodied in this
Decision.
Petitioner does not dispute the accuracy of the litigation history recounted in the Report

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Petitioner’s Objections were signed December 20, 2021. She claims they were timely because she only received the
Report on December 11, 2021 (ECF No. 14, PageID 237). The Report was mailed to petitioner on the same day it
was filed, December 1, 2021. For litigants who are served by mail, the date of service is the date of mailing, not the
date of receipt. Fed.R.Civ.P. 6. Objections were therefore due to have been filed by December 18. Nevertheless, the
Court will excuse the two-day delay and consider the objections on the merits.

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which noted that Stites was convicted, along with her paramour Herman See, of multiple serious
sexual crimes against her own daughter and two step-daughters. Ultimately she was sentenced to
seventy-six years imprisonment.

Co-defendant See was sentenced to four consecutive life

sentences plus 221 years. State v. See, 2020-Ohio-2923 ¶ 1 (Ohio App. 1st Dist. May 13, 2020).
Stites pleaded only one ground for relief:
Ground One: The introduction of the Grand Jury witness list and
nature of witness testimony by the State in its case in chief without
notice to the Defendant violates a defendant’s right to due process
and a fair trial.
Supporting Facts: The evidence against Angela was weak but for
the improperly introduced Grand Jury testimony. The 2013 and
2018 Grand Jury content tipped the scales against Angela. If the
State is permitted to ambush the defense with evidence that is not
obtainable through the discovery process, the constitutional rights
of criminal defendants to a fair trial and due process in the State of
Ohio are at jeopardy.
(Petition, ECF No. 1, PageID 7).
There was no contemporaneous objection to the testimony, so the Ohio First District Court
of Appeals reviewed Petitioner’s grand jury claim only for plain error. Moreover, the claim was
presented to the First District solely as an abuse of discretion claim, rather than as a federal
constitutional claim. The Magistrate Judge recommended dismissal of the claim with prejudice
on the basis of these two procedural defaults (Report, ECF No. 13, PageID 226-29, PageID 22932). He also found the claim to be without merit because there is no constitutional right to pretrial discovery of adverse testimony in a criminal case and recommended dismissal on that basis.
Id. at PageID 233-35.
Petitioner offers no rebuttal of the Report. Instead, she notes that dismissal with prejudice,
which means she cannot bring another habeas corpus case, is “very harsh.” (ECF No. 14, PageID
238). In the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
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Stat. 1214)(the "AEDPA"), Congress provided that a second or successive habeas corpus petition
attacking the same conviction can be brought with permission of the circuit court of appeals under
limited circumstances. 28 U.S.C. § 2244(d). If Petitioner meets those conditions, she would be
allowed to bring a second petition.
Instead of rebutting the Magistrate Judge’s analysis, Petitioner seeks to amend her Petition
to add a claim of ineffective assistance of trial counsel with nine sub-claims. If the amendment
were allowed, the Petition would then become a “mixed” petition with both exhausted and
unexhausted claims. If the amendment is granted, she then seeks a stay under Rhines v. Weber,
544 U.S. 269 (2005), to pursue those claims in a petition for post-conviction relief in the Ohio
courts under Ohio Revised Code § 2953.21.
Under 28 U.S.C. § 2242, a habeas corpus petition can be amended by following the
procedure prescribed in Fed.R.Civ.P. 15. The general standard for considering a motion to amend
under Fed. R. Civ. P. 15(a) was enunciated by the United States Supreme Court in Foman v. Davis,
371 U.S. 178 (1962):
If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits. In the absence of any
apparent or declared reason -- such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of any allowance of the amendment,
futility of amendment, etc. -- the leave sought should, as the rules
require, be "freely given."
371 U.S. at 182.

See also Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997)(citing Foman

standard).
In considering whether to grant motions to amend under Rule 15, a court should consider
whether the amendment would be futile, i.e., if it could withstand a motion to dismiss under Rule

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12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir. 1992); Martin v.
Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v. Centran Corp., 747 F.2d
1536 (6th Cir. 1984); Communications Systems, Inc., v. City of Danville, 880 F.2d 887 (6th Cir.
1989); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th

Cir. 1983);

Neighborhood Development Corp. v. Advisory Council, 632 F.2d 21, 23 (6th Cir. 1980); United
States ex rel. Antoon v. Cleveland Clinic Found., 978 F. Supp. 2d 880, 887 (S.D. Ohio 2013)(Rose,
J.); William F. Shea, LLC v. Bonutti Reseach Inc., 2011 U.S. Dist. LEXIS 39794, *28 (S.D. Ohio
March 31, 2011) (Frost, J.).
For a number of reasons, the proposed amendment would be futile.
First of all, some of the sub-claims could have been adjudicated on the appellate record
and are procedurally defaulted for failure to present them to the First District.
Second, a petition for post-conviction relief to raise claims based on evidence outside the
appellate record is barred by the statute of limitations applicable to that remedy. Ohio Revised
Code § 2953.23 provides such a petition must be filed within 365 days of the date the record is
filed on appeal. Petitioner’s Brief in the First District was filed October 23, 2019, after the record
on appeal was complete, so it is clear that more than a year has elapsed since the record was
available. Ohio Revised Code § 2953.23 imposes a jurisdictional limit, so that the Common Pleas
Court could not excuse Petitioner’s delay.
Because any amendment would be futile, Petitioner’s request to amend is denied. This
renders her request for a stay moot.

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Conclusion

Having reviewed Petitioner’s Objections de novo, the Court finds they are without merit
and are hereby overruled. The Report is adopted and the Clerk is directed to enter judgment
dismissing the Petition with prejudice. Because reasonable jurists would not disagree with this
conclusion, Petitioner is denied a certificate of appealability and the Court certifies to the Sixth
Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in
forma pauperis.

January 6th, 2022.
S/Susan J. Dlott___________
Susan J. Dlott
United States District Judge

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