Jackson v. Bradshaw

Filing 104

ORDER denying 97 Motion for Independent Relief ; denying 100 Motion to Dismiss for Lack of Jurisdiction; denying 103 Motion for Leave to File Sur-Reply. Signed by Judge Gregory L. Frost on 9/28/15. (kn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KAREEM JACKSON,
Petitioner,
v.

Case No. 2:03-cv-983
JUDGE GREGORY L. FROST
Magistrate Judge Terence P. Kemp

MARGARET BRADSHAW, Warden,
Respondent.

OPINION AND ORDER
On September 28, 2007, this Court entered final judgment dismissing Petitioner’s capital
habeas corpus action. (ECF No. 57.) This matter is before the Court for consideration of
Petitioner’s Motion For Independent Relief on Behalf of Petitioner, Kareem Jackson, Pursuant to
Fed. R. Civ. P. 60(d)(1). (ECF No. 97.) Also before the Court are Respondent’s Motion to
Dismiss (ECF No. 100), Petitioner’s Brief in Opposition (ECF No. 101), Respondent’s Reply
(ECF No. 102), and Petitioner’s Motion for Leave to File Sur-Reply (ECF No. 103).
Petitioner requests relief from the portion of this Court’s September 28, 2007 Opinion
and Order (ECF No. 56) denying relief on Petitioner’s claim of ineffective assistance of counsel
for the failure to zealously represent Petitioner by failing to call accomplice Michael Patterson as
a defense witness. (ECF No. 56, at Page ID # 730-43.) Petitioner asserts that relief is necessary
to prevent a grave miscarriage of justice. According to Petitioner, this Court’s reasoning was
based on an erroneous presumption of critical facts that are now known through Patterson’s
statement to police that was not a part of the record before this Court and that Petitioner has
attached. (ECF No. 98-1.) “Had the District Court addressed this claim based upon a full

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record,” Petitioner argues, “the resolution of this claim would have been reasoned otherwise and
the result would have been favorable to Mr. Jackson such that upon a grant of habeas relief, he
would not be subject to a death sentence as the principal offender.” (ECF No. 97, at Page ID #
1213.)
In his first ground for relief, Petitioner raised numerous claims of ineffective assistance of
counsel. Subpart I-A asserted that Petitioner’s trial counsel were ineffective for failing to call
Michael Patterson as a witness. (ECF No. 18-1, at Page ID # 145-147.) The Court sets forth
Petitioner’s claim verbatim below:
2.
Michael Patterson participated in the robberies and deaths of the victims.
As a result, Mr. Patterson was charged with involuntary manslaughter and
aggravated robbery. (Vol. XI, page 125). Mr. Patterson entered into a plea
agreement (Joint Exhibit 2) with the prosecution requiring him to testify on behalf
of the State. Mr. Patterson was ultimately sentenced to 15 years. (Tr. Vol. XI,
page 108).
3.
Prior to trial, defense counsel learned that Mr. Patterson sent a letter
(Defense Exhibit A) to the defendant indicating his [Patterson’s] willingness to
tell the truth about what happened. (Tr. Vol. X, page 96).
4.
After learning that Michael Patterson might be a helpful witness, Defense
counsel provided the prosecutor with a [copy of the] letter Mr. Patterson had
written and contacted Mr. Patterson’s lawyer to set up a meeting. (Tr. Vol. X,
page 97). At that meeting, Mr. Patterson indicated that he did not want to speak
with Mr. Jackson’s counsel because he understood that he was in jeopardy of
losing his plea agreement. (Tr. Vol. X, pages 96-97). Mr. Patterson further
indicated that if called he would invoke his privilege against self-incrimination.
Due to Mr. Patterson voicing his intention to invoke his privilege against selfincrimination, defense counsel declined to call him as a witness. (Tr. Vol. X,
page 100).
5.
Defense counsel had no duty to turn over Mr. Patterson’s letter to the
prosecution unless and until Mr. Patterson testified. Ohio R. Crim. P.
16(C)(1)(d). The decision to inform the prosecutor about the letter had no
strategic purpose, and it significantly prejudiced Mr. Jackson. Because the
prosecution learned of the letter, Mr. Patterson was pressured that he could lose
his plea agreement if he testified for the defense. This caused the defense to lose
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a valuable witness. (See Sixth Ground for Relief).
6.
Trial counsel should have called Mr. Patterson as a witness so that the trial
court could voir dire him as to the bona fides of his claim of privilege.
7.
Once the privilege against self-incrimination is asserted in a judicial
proceeding, the trial court must determine if the claim is valid. In Hoffman v.
United States, 341 U.S. 479, 486-87 (1951), the test was delineated as follows:
The witness is not exonerated from answering merely because he
declares that in so doing he would incriminate himself – his say so
does not itself establish the hazard of incrimination. It is for the
court to say whether his silence is justified…and to require him to
answer if it clearly appears to the court that he is mistaken. To
sustain the privilege, it need only be evident from the implications
of the question, in the setting in which it is asked, that a responsive
answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could
result.
8.
A guilty plea is a waiver of a witness’s constitutional privilege against
self-incrimination. Boykin v. Alabama, 395 U.S. 238, 243 (1969). The waiver
relative to a guilty plea is operative only with respect to the crime for which the
witness is charged. United States v. Damiano, 579 F.2d 1001 (6th Cir. 1978).
Since Mr. Patterson had pleaded guilty to involuntary manslaughter, he had
waived his privilege with respect to his involvement in that offense. There is no
indication from the letter that Mr. Patterson was being compelled to be a witness
against himself. Rather, he was going to be a witness as to the level of Mr.
Jackson’s involvement. Under such circumstances, Mr. Patterson had no
privilege to assert. Therefore, defense counsel violated an essential duty owed to
Mr. Jackson, that being the duty to zealously obtain favorable evidence. See
Williams v. Taylor, 529 U.S. 362 (2000). Mr. Jackson was prejudiced because
favorable evidence would have been placed before the jury.
(ECF No. 18-1, at Page ID # 145-47.)
In a May 10, 2005 Opinion and Order, this Court denied Petitioner’s motion for leave to
conduct discovery on this claim. (ECF No. 41, at Page ID # 559-62.)
In its September 28, 2007 Opinion and Order, this Court rejected Petitioner’s claim on
the merits, stating:

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In Part I of his first ground for relief, Petitioner submits in sub-part (A)
that his defense counsel abrogated their duty to zealously represent Mr. Jackson
when they failed to call Michael Patterson as a witness. (Amended Petition, Doc.
# 18, at ¶¶ 2-8.) Mr. Patterson participated in the planning and robberies of the
victims and, as a result, was charged with involuntary manslaughter and
aggravated robbery. He entered into a plea agreement that, among other things,
required him to testify truthfully if called by the State, and ultimately he received
a fifteen-year prison sentence. At some point prior to or during Petitioner’s trial,
defense counsel learned that Mr. Patterson purportedly had sent a letter to
Petitioner offering “to tell the truth” about what had happened during the incident.
(J.A. Vol. II, D.A., OSC, Part B, at 121.) Petitioner’s defense counsel provided
the prosecutors with a copy of the letter and contacted Mr. Patterson’s attorney for
the purpose of setting up a meeting with Mr. Patterson. When defense counsel
met with Mr. Patterson, Mr. Patterson indicated that he no longer was willing to
speak to them because he understood that he was in jeopardy of losing his plea
agreement and that he intended, on his counsel’s advice, to invoke his Fifth
Amendment privilege against self-incrimination if called to testify at Petitioner’s
trial. He also apparently failed to authenticate the letter. Subsequently, over
Petitioner’s objection, defense counsel declined to call Mr. Patterson as a witness
or to attempt to introduce the letter into evidence. (Tr. Vol. X, at 103-104.)
Petitioner argues that his attorneys performed unreasonably because they
had no obligation or strategic reason for informing the prosecutors about Mr.
Patterson’s letter and that by doing so, they gave the prosecutors an opportunity to
pressure Mr. Patterson into backing out of his offer to assist Petitioner. Petitioner
further argues that counsel had no strategic reason for declining to call Mr.
Patterson to the stand so that, at the very least, the trial court could determine
whether Mr. Patterson even was entitled to invoke his Fifth Amendment privilege
against self-incrimination. Petitioner argues that Mr. Patterson’s guilty plea
effectively operated as a waiver of his Fifth Amendment privilege regarding these
offenses and that there was no indication from his letter that he was being
compelled to incriminate himself or intended to testify as to anything other than
Petitioner’s involvement in the offense. Petitioner argues that counsel’s deficient
performance was prejudicial because it deprived Petitioner of the opportunity to
present a favorable witness.
Petitioner raised this allegation of ineffective assistance of counsel on
direct appeal to the Ohio Supreme Court. (J.A. Vol. II, D.A., OSC, Part A, at
146-48.) Citing Strickland v. Washington, 466 U.S. 668, 687 (1984), the Ohio
Supreme Court prefaced its discussion of all of Petitioner’s claims of trial counsel
ineffectiveness by stating that “[r]eversal of a conviction based upon ineffective
assistance of counsel requires that the defendant show, first, that counsel’s
performance was deficient and, second, that the deficient performance prejudiced
the defense so as to deprive the defendant of a fair trial.” Jackson, 92 Ohio St. 3d
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at 445-46. The Ohio Supreme Court went on to reject Petitioner’s claim
challenging his trial counsel’s refusal to call Michael Patterson, holding that
Petitioner had not established either deficient performance or prejudice. Citing
Hoffman v. United States, 341 U.S. 479, 486-87 (1951), the Ohio Supreme Court
recognized that when a witness asserts the privilege against self-incrimination, it
is for the trial court to determine whether the witness’s refusal to answer is
justified. Jackson, 92 Ohio St. 3d at 447. Although that did not happen in this
case, due to counsel’s decision not to call Mr. Patterson, the Ohio Supreme Court
explained that “counsel’s decision in not calling Mr. Patterson as a defense
witness could well have been a tactical decision and therefore cannot be
considered as rising to the level of ineffective assistance of counsel.” Jackson, 92
Ohio St. 3d at 447. “Furthermore,” the Ohio Supreme Court explained,
“[Jackson] has not proven that but for his counsel’s actions, the result of the case
would have been different.” Id. Specifically, the Ohio Supreme Court concluded,
Petitioner made no showing that Mr. Patterson’s testimony would have aided
Petitioner in his defense. Id.
Petitioner argues herein that he is entitled to relief under 28 U.S.C. §
2254(d)(2) because the Ohio Supreme Court’s decision involved an unreasonable
determination of the facts and law in light of the evidence presented in state court.
(Traverse, Doc. # 42, at 16.) Petitioner further argues that he is entitled [to] relief
because, although Strickland holds that a Petitioner is prejudiced if counsel’s
deficient performance undermines confidence in the outcome of his trial, the Ohio
Supreme Court in this case incorrectly employed an outcome-determinative test
for examining whether prejudice existed. (Id.)
The right to counsel guaranteed by the Sixth Amendment is the right to the
effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970). The standard for demonstrating a claim of ineffective assistance of
counsel is composed of two parts:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Strickland, 466 U.S. at 687. Scrutiny of defense counsel’s performance must be
“highly deferential.” Id. at 689.
With respect to the first prong of the Strickland test, “[b]ecause of the
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difficulties inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. To establish the second prong of the Strickland test,
prejudice, a Petitioner must demonstrate that there is a reasonable probability that,
but for counsel’s errors, the result of the proceedings would have been different.
Id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. Because Petitioner must satisfy both prongs of
the Strickland test to demonstrate ineffective assistance of counsel, should the
court determined that Petitioner has failed to satisfy one prong, it need not
consider the other. Id. at 697.
For the reasons that follow, the Court is not persuaded either that counsel
performed deficiently or that, but for counsel’s performance, there is a reasonable
probability that the outcome of Petitioner’s trial would have been different.
Further, the Court is not persuaded that the Ohio Supreme Court’s decision
rejecting Petitioner’s claim involved either an unreasonable application of clearly
established Supreme Court precedent or an unreasonable determination of the
facts.
To demonstrate deficient performance sufficient to satisfy the first prong
of the Strickland standard, Petitioner must show that counsel’s performance “fell
below an objective standard of reasonableness.” Strickland, 466 U.S. at 688;
Wiggins v. Smith, 539 U.S. 510, 521 (2003). The decision of which witnesses to
call and what evidence to present generally is reserved for counsel’s discretion
and judgment. See, e.g., United States v. Foreman, 323 F.3d 498, 504 (6th Cir.
2003). Regarding the deference that a reviewing court owes to counsel’s
discretion and judgment, the Supreme Court has instructed that “[s]trategic
choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.” Strickland, 466
U.S. at 690; Wiggins, 539 U.S. at 521.
In rejecting Petitioner’s claim that his trial attorneys were ineffective for
not calling Michael Patterson to the stand, the Ohio Supreme Court observed that
“counsel’s decision in not calling Patterson as a defense witness could well have
been a tactical decision and therefore cannot be considered as rising to the level of
ineffective assistance of counsel.” Jackson, 92 Ohio St. 3d at 447. This Court
cannot disagree with that assessment, much less find it unreasonable. If anything,
this Court is of the view that counsel’s decision not to call Mr. Patterson
unequivocally was a tactical decision.
Unlike ineffective assistance claims in many cases, where the
determination of what was or was not a tactical decision is largely a matter of
6

speculation, the record as to this ineffective assistance claim is relatively well
developed on the issue of counsel’s reasons for not calling Michael Patterson as a
defense witness. A few weeks into Petitioner’s trial, just before the defense called
its final witness during its case-in-chief, Petitioner’s trial attorneys placed on the
record facts concerning Petitioner’s receipt of a letter purporting to be from codefendant Michael Patterson and defense counsel’s reasons, ultimately, for
declining to call Mr. Patterson as a defense witness. Defense counsel Mr.
Schumacher explained that Petitioner had, at some point during the pendency of
his trial, received and shown to counsel a letter from Mr. Patterson indicating his
willingness “to tell the truth” about what had happened. This version of the
events was contrary to what he had told the State to obtain his plea agreement.
(Tr. Vol. X, at 95-96.) The letter was marked as defendant’s exhibit A, not to be
shown to the jury, but for purposes of appellate review. (Id. at 96.) Recognizing
that the letter could be beneficial to Petitioner’s case, according to Mr.
Schumacher, defense counsel provided the letter to the prosecutors in compliance
with discovery and then contacted Mr. Patterson’s attorney, David Kentner, in
order to set up a meeting. Mr. Kentner, in turn, spoke to Mr. Patterson and then
relayed to Petitioner’s defense attorneys that Mr. Patterson was amenable to
meeting them. When Mr. Schumacher, co-counsel Mr. Rigg, and Mr. Kentner
went to talk to Mr. Patterson at the county jail where, apparently, Mr. Patterson
had been transported due to the prosecution’s intention to call him to testify
against Petitioner (Tr. Vol. X, at 99), Mr. Patterson indicated that he no longer
wished to discuss the case with Petitioner’s defense attorneys because he
understood that he was in jeopardy of losing his plea agreement. Mr. Patterson
refused to say anything to authenticate the letter or its contents, and declined to
discuss what he would say in court beyond invoking his Fifth Amendment
privilege against self-incrimination. (Id. at 97.)
To this, prosecuting attorney Mr. Stead added that Michael Patterson had a
plea agreement that required him to cooperate and provide truthful testimony if
the State needed him. According to Mr. Stead, the prosecution had already
brought Mr. Patterson from the Lebanon Correctional Institute to the Franklin
County jail so the prosecution could call him to testify at Petitioner’s trial when
Mr. Stead learned “there was a potential problem” regarding Mr. Patterson’s
testimony. (Id. at 99.) Mr. Stead, accompanied by co-counsel Ms. Kurilchick and
Detective Larry Winters, met with Mr. Patterson, at which point Mr. Patterson
refused to discuss the case. Mr. Stead stated that he informed Mr. Patterson that
he (Stead) was of the view that Mr. Patterson was not living up to his plea
agreement and that Mr. Patterson should talk to his lawyer. Mr. Stead stated that
he, too, spoke to Mr. Patterson’s lawyer, Mr. Kentner, to inform him that the
prosecution was of the view that Mr. Patterson was not living up to his end of the
bargain and that the prosecution had a basis for seeking to have the plea
agreement set aside. Mr. Stead stated to Mr. Kentner that the prosecution had not
decided for certain whether it would, in fact, seek to have Mr. Patterson’s plea
7

agreement set aside.
(Id. at 99-100.)
Mr. Kentner substantiated the
representations by Mr. Schumacher and Mr. Stead. (Id. at 98, 100.)
Mr. Schumacher then explained, on the record, defense counsel’s reasons
for declining to call Mr. Patterson as a defense witness over their client’s
objection. First, according to Mr. Schumacher, defense counsel were of the view
that it would be unethical to call Mr. Patterson to the stand solely for the purpose
of having the jury hear him invoke his privilege against self-incrimination. (Id. at
100-101.) Beyond that, Mr. Schumacher continued, defense counsel decided “as
a tactical reason” not to call to the stand a witness who was on record with the
prosecution with a statement that involved Petitioner in the crime. (Id. at 101.)
[fn.3 Patterson’s statement was marked as defendant’s exhibit B, not to be shown
to the jury, but for purposes of appellate review. (Tr. Vol. X, at 101.) That
statement is not part of the record before this Court.] Mr. Schumacher
emphasized that defense counsel would have considered calling Mr. Patterson if
they had had any inkling that he might say something contrary to his previous
statement to authorities, but that with “absolutely no idea what” Mr. Patterson
would say, defense counsel would have been “foolhardy” to have called Mr.
Patterson. (Id. at 101-102.) Co-counsel Mr. Rigg emphasized that Mr. Patterson
would not tell defense counsel what he would say if called to the stand and that
Mr. Rigg was reluctant to call a witness without knowing what that witness would
say, “especially since had said damaging things against Mr. Jackson before.” (Id.
at 103.) Finally, at the trial court’s invitation, Petitioner Jackson stated on the
record that he did not understand why his attorneys could not put the letter into
evidence, to which Mr. Schumacher responded that defense counsel were of the
view that the Rules of Evidence precluded admission of the letter, not only
because it had not been authenticated but also because of hearsay rules. (Id. at
103-104.)
In arguing that his attorneys performed deficiently, Petitioner asserts that
Mr. Patterson’s announced intention to invoke his Fifth Amendment privilege
against self-incrimination did not justify counsel’s decision not to call him as a
defense witness and that counsel violated their duty to represent zealously
Petitioner when they provided Mr. Patterson’s letter to the prosecutor, thereby
giving the prosecution an opportunity to coerce Mr. Patterson into backing out of
his offer to testify for Petitioner. Both arguments miss the mark. First, contrary
to Petitioner’s assertion, Mr. Patterson’s announced intention to invoke his
privilege against self-incrimination was not the sole, or even primary, reason that
trial counsel declined to call him as a defense witness. As detailed above,
Petitioner’s trial attorneys provided several tactical reasons why, beyond Mr.
Patterson’s intention to invoke his privilege against self-incrimination, they did
not wish to call Mr. Patterson as a defense witness. Notwithstanding Mr.
Patterson’s purported letter to Petitioner stating his willingness to “tell the truth”
(J.A. Vol. II, D.A., OSC, Part B, at 121), Mr. Patterson refused to discuss with
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Petitioner’s trial attorneys not only the events of March 24-25, 1997, but also
what he would say if called as a defense witness. Counsel had no idea what Mr.
Patterson would say if called as a defense witness but of the three possible
scenarios, the one that might have been beneficial to Petitioner was the least
probable. Not knowing whether Mr. Patterson would “take the Fifth” and say
absolutely nothing, testify consistent with his purported letter and contrary to his
statement to authorities, or testify consistent with his statement to authorities and
plea agreement, counsel chose not to take the risk. (Tr. Vol. X, at 102-03.) At
best, given the substantial unlikelihood that Mr. Patterson would have jeopardized
his favorable plea agreement by testifying consistent with his purported letter and
contrary to the statement he had given authorities (a statement that presumably
implicated Petitioner as the shooter), Mr. Patterson could have invoked his
privilege against self-incrimination, thereby providing nothing of value to
Petitioner’s case. At worst, he could have testified consistent with his plea
agreement and statement to authorities, providing additional, damaging evidence
against Petitioner. This Court is of the view that counsel were reasonable in
deciding not to risk putting Mr. Patterson on the stand.
Petitioner focuses much of his argument here, as he did in the state courts,
on the premise that counsel were obligated to call Mr. Patterson as a defense
witness so that, at the very least, the trial court could determine whether he was
entitled to refuse to answer questions on the basis of his privilege against selfincrimination. See Hoffman v. United States, 341 U.S. 479, 486-87 (1951) (“The
witness is not exonerated from answering merely because he declares that in
doing so he would incriminate himself—his say so does not itself establish the
hazard of incrimination.”) Petitioner reasons that because Mr. Patterson had
pleaded guilty to involuntary manslaughter and because Mr. Patterson gave no
indication in his letter that he was being compelled to be a witness against
himself, Mr. Patterson was not entitled to invoke his privilege against selfincrimination and could not have refused to answer questions about the level of
Petitioner’s involvement in the offenses. (Traverse, Doc. # 42, at 15-16.) Even if
trial counsel were mistaken in their belief that they could not ethically call a
witness to the stand solely for the purpose of that witness “taking the Fifth,” as
Petitioner suggests and contrary to what Hoffman seems to say about the fact that
it is for the trial court to say whether a witness may invoke the Fifth Amendment
privilege, the fact remains that, as discussed above, Petitioner’s trial counsel
voiced other, more substantial tactical reasons for not calling Mr. Patterson as a
defense witness and those reasons justify their decision.
Regarding Petitioner’s argument that defense counsel had no obligations
to disclose Mr. Patterson’s letter to the prosecution and that doing so gave the
prosecution an opportunity to coerce Mr. Patterson into not testifying, that
argument fails because it finds no support in the record. The Ohio Supreme
Court, in rejecting a related claim by Petitioner of prosecutorial misconduct,
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found no evidence in the record that the prosecution had unduly coerced Mr.
Patterson not to testify on Petitioner’s behalf. (J.A. Vol. II, D.A., OSC, Part B, at
100.) Petitioner asserts that the Supreme Court’s finding, which it referenced in
rejecting Petitioner’s claim that his trial attorneys were unreasonably deficient for
providing Mr. Patterson’s letter to the prosecution, constitutes an unreasonable
determination of the facts in light of the evidence presented in the state courts.
(Traverse, Doc. # 42, at 16.) But Petitioner offers nothing beyond pure
speculation to cast doubt on that finding, much less the “clear and convincing
evidence” necessary to rebut the presumption of correctness to which state court
findings are entitled in habeas corpus. 28 U.S.C. §§ 2254(d)(2) and (e)(1).
Regardless of whether defense counsel had a duty under state discovery
rules to provide Mr. Patterson’s letter to the prosecution, Petitioner’s argument
that their doing so gave the prosecution an opportunity to coerce Mr. Patterson
into backing out of his offer to help Petitioner rings hollow. Petitioner’s argument
suggests that defense counsel’s decision to provide Mr. Patterson’s letter to the
prosecution alerted the prosecution to meet with Mr. Patterson before defense
counsel had a chance to meet him for the purpose of coercing him into backing
out of his offer to testify for Petitioner. The record, however, indicates that the
prosecution would have talked to Mr. Patterson regardless of whether they had
been informed about his letter to Petitioner. The prosecution had brought Mr.
Patterson from the correctional facility where he was incarcerated to the county
jail for the purpose of calling him to testify against Petitioner, consistent with his
plea agreement wherein he had promised to cooperate with the State and provide
testimony in any trial in which the State called him. (Tr. Vol. X, at 99.) When
lead prosecutor Mr. Stead learned that “there was a potential problem,”—when he
learned of Mr. Patterson’s letter to Petitioner—Mr. Stead met with Mr. Patterson,
who refuse to discuss the case at all. (Id.) It was at that point that Mr. Stead
advised Mr. Patterson that his refusal to cooperate could result in the revocation
of his plea agreement. (Id. at 99-100.)
The Ohio Supreme Court thus found no indication that the prosecution had
threatened or prevented Mr. Patterson from testifying as a defense witness and
found that the prosecution had merely reiterated the terms of Mr. Patterson’s plea
agreement. Petitioner has not shown, and this Court is not otherwise persuaded
after its own review of the record, that the Ohio Supreme Court’s determination
of the facts was unreasonable in light of the evidence presented.
Even assuming that Petitioner’s trial counsel had performed deficiently
with respect to the manner in which they handled Mr. Patterson’s letter to
Petitioner or their decision not to call Mr. Patterson as a defense witness—a
notion that this Court absolutely rejects—the fact remains that Petitioner fails
entirely to demonstrate that he was prejudiced by counsel’s allegedly deficient
performance. Petitioner has not shown that there is a reasonable probability that,
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but for counsel’s errors, the result of the proceedings would have been different.
Strickland, 466 U.S. at 694. If demonstrating prejudice under Strickland requires
a showing that counsel “was so manifestly ineffective that defeat was snatched
from the hands of probable victory,” United States v. Morrow, 977 F.2d 222, 229
(6th Cir. 1992) (en banc) (emphasis in original), Petitioner falls considerably
short. The Ohio Supreme Court concluded with respect to the prejudice prong of
Strickland that “there was no showing that the testimony of Patterson would have
aided [Jackson] in his defense.” Jackson, 92 Ohio St. 3d at 447. This Court
agrees.
In his purported letter to Petitioner, Mr. Patterson stated, among other
things, that “I got to tell the truth,” and “I got to tell them that Boone did it.” (J.A.
Vol. II, D.A., OSC, Part B, at 121.) Mr. Patterson’s letter was never
authenticated, and Petitioner has never offered a shred of evidence beyond that
letter, such as an affidavit or postconviction testimony, to demonstrate what Mr.
Patterson might have testified to or substantiate the cryptic reference in the letter
“that Boone did it.” That being so, this Court cannot find unreasonable the Ohio
Supreme Court’s conclusion that Petitioner failed to show that Mr. Patterson’s
testimony would have been favorable to his defense.
Petitioner argues that the Ohio Supreme Court erred in its application of
Strickland’s prejudice standard by employing a more stringent “outcome
determinative” test. (Doc. # 42, at 16.) Petitioner’s argument is unpersuasive.
This Court is of the view that, in holding that “[Jackson] has not proven that but
for his counsel’s actions, the result of the case would have been different,”
Jackson, 92 Ohio St. 3d at 447, the Ohio Supreme Court was simply making an
abbreviated reference to Strickland’s prejudice standard by omitting the
“reasonable probability” modifier, not requiring a more stringent “outcome
determinative” showing. Such “shorthand reference[s]” to Strickland’s prejudice
standard do not result in a decision that contravenes or unreasonably applies
clearly established Supreme Court precedent, especially where, as here, the state
court prefaced its discussion of all of Petitioner’s ineffective assistance claims by
citing Strickland and correctly stating the prejudice standard as set forth in
Strickland. Urban v. Ohio Adult Parole Authority, 116 F. App’x 617, 627 (6 th
Cir. 2004) (citing Woodford v. Visciotti, 537 U.S. 19, 23-24 (2002) (per curiam),
and Holland v. Jackson, 542 U.S. 649 (2004) (per curiam).
It is true that failure to investigate or call a particular witness can
constitute ineffective assistance in violation of the Sixth Amendment. See, e.g.,
Clinkscale v. Carter, 375 F.3d 430, 443 (6th Cir. 2004) (collecting cases). But
cases in which courts have found ineffective assistance under those circumstances
involved not only a complete failure on the part of counsel to investigate the
witness or even explain the failure to investigate, but also a showing that the
witness or witnesses whom counsel failed to investigate did, in fact, have
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favorable testimony to offer. See Stewart v. Wolfenbarger, 468 F.3d 338, 356-57
(6th Cir. 2006); Towns v. Smith, 395 F.3d 251, 258-59 (6th Cir. 2005); Clinkscale
v. Carter, 375 F.3d at 443. The instant case, on the other hand, involves none of
those elements. See, e.g., Goldsby v. United States, No. 04-3340, 152 F. App’x
431, 436 (6th Cir. 2005) (finding no ineffectiveness for failure to call witness who
was unlikely to provide helpful testimony and more likely to support
government’s case and for choice to focus on more promising avenues of
investigation).
For the foregoing reasons, the Court denies sub-part (A) of Petitioner’s
first ground for relief regarding trial phase ineffectiveness. Petitioner has not
shown, and it does not otherwise appear to this Court, that the Ohio Supreme
Court’s decision rejecting that ineffective assistance claim contravened or
unreasonably applied controlling Supreme Court precedent or involved an
unreasonable determination of the facts in light of the evidence presented.
(ECF No. 56, at Page ID # 730-43.)
Petitioner asserts in the instant request for relief that the content of Patterson’s March 28,
1997 statement to police (ECF No. 98-1), which was not a part of the record before this Court
and which this Court did not order the parties to produce before the Court denied Petitioner’s
claim, “not only supports Mr. Jackson’s IAC claim, it supports that Mr. Jackson is innocent of
the death penalty.” (ECF No. 97, at Page ID # 1245.)
Petitioner styles the instant pleading as a motion for independent relief pursuant to Fed.
R. Civ. P. 60(d)(1). That provision is a “savings clause” component of Fed. R. Civ. P. 60. Rule
60, entitled “Relief From a Judgment of Order,” provides as follows:
(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The
court may correct a clerical mistake or a mistake arising from oversight or
omission whenever one is found in a judgment, order, or other part of the record.
The court may do so on motion or on its own, with or without notice. But after an
appeal has been docketed in the appellate court and while it is pending, such a
mistake may be corrected only with the appellate court’s leave.
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On
motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
12

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic
misrepresentation, or misconduct by an opposing party;

or

extrinsic),

(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on
an earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be made within a reasonable
time—and for reasons (1), (2), and (3) no more than a year after the entry
of the judgment or order or the date of the proceeding.
(2) Effect on Finality. The motion does not affect the judgment’s finality
or suspend its operation.
(d) Other Powers to Grant Relief. This rule does not limit a court’s power to:
(1) entertain an independent action to relieve a party from a judgment,
order, or proceeding;
(2) grant relief under 28 U.S.C. § 1655 to a defendant who was not
personally notified of the action; or
(3) set aside a judgment for fraud on the court.
(e) Bills and Writs Abolished. The following are abolished: bills of review,
bills in the nature of bills of review, and writs of coram nobis, coram vobis, and
audita querela.
Fed. R. Civ. P. 60.
Petitioner argues that he qualifies for relief under Rule 60(d) because there is no current

13

remedy available to Petitioner—in other words, because he does not qualify for relief under the
provisions of Rule 60(b). Petitioner asserts that because of the extraordinary circumstances
stemming from this Court’s erroneous presumption of critical facts and because Petitioner has an
execution date scheduled for September 21, 2016, “this equitable pleading should be granted to
correct the District Court’s error and ensure the integrity of the judicial process rendered in Mr.
Jackson’s case.” (ECF No. 97, at Page ID # 1245-246 (citations omitted).)
In the Sixth Circuit, the “indisputable elements” of an independent action are as follows:
(1) a judgment which ought not, in equity and good conscience, []be enforced; (2)
a good defense to the alleged cause of action on which the judgment is founded;
(3) fraud, accident, or mistake which prevented the defendant in the judgment
from obtaining the benefit of this defense; (4) the absence of fault or negligence
on the part of the defendant; and (5) the absence of any adequate remedy at law.
Mitchell v. Rees, 651 F.3d 593, 595 (6th Cir. 2011) (citations omitted); see also Barrett v. Sec’y
of Health & Human Servs., 840 F.2d 1259, 1263 (6th Cir. 1987); Marcelli v. Walker, 313 F.
App’x 839, 842 (6th Cir. 2009); Buell v. Anderson, 48 F. App’x 491, 498 (6th Cir. 2002).
“Moreover,” the Sixth Circuit in Mitchell noted, “an independent action is available only to
prevent a grave miscarriage of justice.” Mitchell, 651 F.3d at 595 (internal quotation marks and
citations omitted); see also Marcelli, 313 F. App’x at 842; Buell, 48 F. App’x at 498. To that
point, the Sixth Circuit in Mitchell echoed the observation voiced by other circuits that the
standard set forth above is, and was meant to be, stringent and demanding. Id. Finally, the Sixth
Circuit noted that when brought in the context of a habeas corpus action, a viable Rule 60(d)
independent action requires a strong showing of actual innocence. Mitchell, 651 F.3d at 596; see
also Washington v. Howes, No. 2:08-cv-11341, 2013 WL 5245075, at *2 (6th Cir. Sep. 18,
2013).

14

The essence of Petitioner’s argument is as follows:
When it is realized that nowhere in Patterson’s statement to the authorities
does he make any suggestion that Mr. Jackson was the shooter, there is no
legitimate reason offered in the record to support either the Prosecution’s feigned
threat to withdraw Patterson’s plea agreement for testifying truthfully or defense
counsel’s refusal to call Patterson was requested by their client. Thus, Rule 60(d)
relief is warranted because the District Court’s reasoning is only sound when it
proceeds upon the erroneous “presumption” that Patterson’s original statement to
the police “implicated Petitioner as the shooter.” Said presumption was made in
place of a full review of Mr. Jackson’s IAC claim based on a complete and
accurate record.
(ECF No. 97, at Page ID # 1229.)
Petitioner begins his arguments by recounting the state’s theory of the case and the
manner in which Patterson’s March 28, 1997 statement allegedly contradicts that theory.
Specifically, according to Petitioner, although the state’s theory was that of the four accomplices
inside the apartment during the incident, Petitioner was the only one responsible for the
shootings, nowhere in the March 28, 1997 statement did Patterson “ever identify or even suggest
that [Petitioner] was the actual shooter.” (ECF No. 97, at Page ID # 1221.)
Petitioner next describes the alleged “fallout” from Patterson’s conflicting account of the
events and defense counsel’s decision not to call Patterson as a defense witness. In doing so,
Petitioner suggests that the prosecution intimidated Patterson into not taking the stand to testify
that Derrick Boone was the shooter by threatening to withdraw Patterson’s plea agreement when,
according to Petitioner, the prosecution had no authority to do so. (Id. at Page ID # 1222-224.)
Petitioner also argues that if the plea agreement only required Patterson to testify truthfully, and
Patterson twice indicated in his letter to Petitioner that “the truth was that ‘Boone did it,’ there
could be no breach of the agreement.” (Id. at Page ID # 1223.)
Petitioner proceeds to the crux of his argument—namely that this Court denied the
15

ineffective assistance claim set forth in ground I-A with respect to counsel’s decision not to call
Michael Patterson by assuming, incorrectly as it turns out, facts that were not, but should have
been made, part of the record, to wit: Patterson’s March 28, 1997 statement. (Id. at Page ID #
1225-227.) Petitioner asserts that the now-revealed contents of Patterson’s statement undermine
this Court’s conclusion that defense counsel made a reasonable tactical decision not to call
Patterson and that defense counsel’s decision did not prejudice Petitioner. (Id. at Page ID #
1229-1230.) According to Petitioner:
[B]ecause Patterson’s statement did not implicate Mr. Jackson as the shooter,
because the statement questioned whether Mr. Jackson even had a gun, and
because the State’s theory of prosecution placed Patterson inside the house at the
time of the shooting, the note to Mr. Jackson twice indicating the truth was that
“Boone did it,” was potentially of great help to the defense had they called Mr.
Patterson as a witness.
(Id. at Page ID # 1230.)
“The three scenarios suggested by the District Court as demonstrative of trial counsel’s
strategic reasoning,” Petitioner continues, “play out very differently when considering the true
contents of Patterson’s statement to police.” (Id.) With respect to defense counsel’s not
knowing whether Patterson would “take the Fifth” and say absolutely nothing, Petitioner asserts
that Patterson would not have been jeopardizing his plea agreement requiring him to testify
truthfully because the “truth,” as revealed by Patterson’s March 28, 1997 statement and letter to
Petitioner, was that Petitioner was not the shooter. (Id. at Page ID # 1231.)
With respect to the defense counsel’s not knowing whether Patterson would testify
consistent with his letter and contrary to his statement to authorities, Petitioner asserts that
because the complete record reveals that Patterson’s March 28, 1997 statement did not implicate
Petitioner as the shooter, this scenario posed no risk for defense counsel. Petitioner reasons that
16

if Patterson had testified consistent with his letter stating “Boone did it,” prompting the
prosecution to impeach Patterson with his March 28, 1997 statement, defense counsel would
have been able to advocate to the jury: that the prosecution never believed parts of Patterson’s
statement and nonetheless offered him a favorable plea deal; that once the prosecution learned of
Patterson’s letter to Petitioner, the prosecution went out of its way to ensure that the jury never
heard from Patterson; and that when two accomplices who both received favorable plea
agreements (Patterson and Boone) give significantly contradictory accounts of the incident,
reasonable doubt exists as to which one to believe. (Id. at Page ID # 1232-234.)
Finally, with respect to defense counsel’s not knowing whether Patterson would testify
consistent with his statement to authorities and plea agreement, Petitioner argues that a complete
record demonstrates that this scenario “actually presented no downside for defense counsel.”
(Id. at Page ID # 1234.) If Patterson had testified consistent with his statement that he had not
been in the house during the shootings, Petitioner argues that defense counsel could have pointed
out to the jury that even though the prosecution never believed that to be true, the prosecution
nonetheless gave Patterson a favorable plea deal. Petitioner argues that defense counsel also
could have confronted Patterson first with his plea agreement requiring him to testify truthfully
and then, with his letter in which he twice indicated that the truth was that “Boone did it.” (Id. at
Page ID # 1234-235.) Petitioner also asserts that defense counsel could have had Patterson tell
the jury how the prosecution, upon learning of his letter to Petitioner, “confront[ed]” Patterson
and “threat[ened]” to withdraw his plea agreement. (Id. at Page ID # 1235.) Petitioner further
argues that if Patterson had testified consistent with his letter and contrary to Derrick Boone’s
testimony, defense counsel could have argued that reasonable doubt existed sufficient to spare

17

Petitioner’s life. (Id. at Page ID # 1235-236.) But if, Petitioner continues, Patterson had testified
contrary to his letter and consistent with Derrick Boone’s testimony, defense counsel could have
impugned Patterson’s credibility by arguing to the jury that the only reason he was testifying that
way, as opposed to what he had stated in his letter, was because he feared losing his favorable
plea deal.
Petitioner concludes that defense counsel, in possession of both Patterson’s March 28,
1997 statement and Patterson’s letter to Petitioner, “lacked any strategic reason for refusing Mr.
Jackson’s request to call Patterson as a defense witness.” (Id. at Page ID # 1236.) Petitioner
further argues that this Court erred in finding that Petitioner was not prejudiced by defense
counsel’s decision not to call Patterson because in light of the actual content of the now-revealed
March 28, 1997 statement, it is clear that all three scenarios envisioned by the Court undermined
the credibility of Derrick Boone’s testimony or the integrity of the prosecutors. (Id. at Page ID #
1237-241.)
Respondent moves the Court, pursuant to 28 U.S.C. §§ 2244(b)(1) and 2244(b)(3)(A), to
dismiss Petitioner’s application as an unauthorized second Petition. (ECF No. 100.) Respondent
argues that Petitioner’s application is in fact “a merits-based attack on the disposition of the prior
habeas petition that must first be presented to the Sixth Circuit Court of Appeals.” (Id. at Page
ID # 1275.) Respondent reasons that Petitioner’s rationale for requesting relief—namely that
this Court’s prior denial of the claim is void due to the failure of the Court to consider
Patterson’s now-known statement to authorities—is a “claim” within the meaning of Gonzalez v.
Crosby, 545 U.S. 524, 530 (2005). As such, Respondent asserts, Petitioner’s application is not a
“true 60(b)” motion that would be exempt to rules governing second or successive petitions.

18

(ECF No. 100, at Page ID # 1276.) Petitioner characterizes the failure of this Court to consider
Patterson’s statement as “ordinary trial error,” rather than the extraordinary grounds that would
warrant Rule 60 relief. (Id.) Respondent notes that without an order by the Sixth Circuit
authorizing the filing of a second petition, this Court lacks jurisdiction over Petitioner’s
application. (Id. at Page ID # 1275.) Respondent next challenges the substance of Petitioner’s
arguments, although noting that that is not necessary to the determination that the instant
pleading is an unauthorized second petition rather than a Rule 60(b) motion. (Id. at Page ID #
1277-278.)
Petitioner opposes Petitioner’s motion to dismiss, arguing that Petitioner’s reliance on
Gonzalez and its progeny is misplaced because “it completely ignores the fact that Mr. Jackson’s
application for relief is not a 60(b) motion at all.” (ECF No. 101, at Page ID # 1280.) Relying
on Buell v. Anderson, 48 F. App’x 491, 492 (6th Cir. 2002), Petitioner first argues that “an
independent action brought pursuant to Rule 60(d) may prevail notwithstanding that it would be
barred as a successive petition if brought pursuant to Rule 60(b).” (ECF No. 101, at Page ID #
1281.)
Petitioner proceeds to offer arguments why the instant Application is neither a second
petition nor even a Rule 60(b) motion, but rather a legitimate independent action pursuant to
Rule 60(d). First, according to Petitioner, because Rule 60(d) relief is intended to ensure the
integrity of a state’s judicial process, “particularly when that may culminate in a defendant’s
execution[,]” a Rule 60(d) application “embodies the type of application for relief that is not
barred as successive.” (Id. at Page ID # 1282.) Petitioner asserts that his request is a Rule 60(d)
motion because he has been subjected to a judgment that ought not, in equity and good

19

conscience, be enforced because he is actually innocent of the relevant death penalty
specification. He continues that he was prevented from obtaining the benefit of a good defense
based on actual innocence by virtue of this Court’s erroneous presumption of critical facts.
Petitioner also notes that he is without any other remedy at law.
Petitioner next argues that even assuming the Court construes the instant request as a
Rule 60(b) motion for relief from judgment, rather than a Rule 60(d) motion for independent
relief, Gonzalez and its progeny do not preclude relief. (Id. at Page ID # 1283-286.) Petitioner
reasons that Gonzalez and the rules governing the pursuit of a second or successive petition
apply only when the pleading at issue asserts a new ground for relief or argues that a ruling on a
previously raised ground was in error. Gonzalez does not apply, Petitioner emphasizes, when the
pleading at issue attacks not the substance of the federal court’s resolution of a claim, but an
alleged defect in the integrity of the federal habeas proceedings. Petitioner thus insists that he
does not argue that this Court should revisit its denial of ground I-A due to a mistake by counsel
or in light of new evidence. “Rather,” Petitioner asserts, “Mr. Jackson’s motion highlights a
serious defect in the integrity of his prior habeas proceedings.” (Id. at Page ID # 1285.)
Specifically, Petitioner argues that this Court’s prior denial of ground I-A “is only sound based
on a factual assumption made by the Court, which assumption turned out to be false.” (Id.)
Petitioner continues, “[r]endering a decision based upon an incomplete record and assumed facts
undermined the integrity of Mr. Jackson’s habeas proceedings and rendered said proceedings
arbitrary insofar as the decision is unsupported by the record.” (Id.) Petitioner argues that this
went well beyond “ordinary trial error.” (Id. at Page ID # 1286.) Petitioner concludes that if this
Court construes the instant request as a 60(b) motion, the Court should construe it as a request

20

targeting the integrity of the prior habeas proceedings (which would not be governed by
successive petition procedures), not a request raising a new claim or challenging this Court’s
prior denial of ground I-A, which would be governed by successive petition rules.
Petitioner next challenges Respondent’s alleged “mischaracterization” of Petitioner’s
underlying ineffective assistance claim and Rule 60(d) argument. Petitioner insists that his
ineffective assistance claim concerning Patterson’s letter and testimony has never been based on
defense counsel’s failure to force Patterson to assert his Fifth Amendment privilege. “Rather,”
Petitioner states, “the underlying IAC claim concerns defense counsel’s unreasonable and
incorrect assumption that Patterson had a viable Fifth Amendment right to assert.” (Id. at Page
ID # 1287.)
Respondent argues in reply that even assuming there exists “a motion for independent
relief” that lies outside the reach of second petition rules, the instant pleading does not qualify.
(ECF No. 102, at Page ID # 1291.) Specifically, Respondent charges that Petitioner’s pleading
fails to assert, or otherwise state facts supporting a finding of, “extrinsic fraud.” (Id.)
Respondent also argues that Petitioner’s pleading scarcely goes to the integrity of the prior
habeas proceedings because “it would make no difference to the outcome of the Michael
Patterson IAC claim whether or not this Court read Patterson’s statement to the police.” (Id. at
Page ID # 1292.) Respondent’s reasoning appears to hinge on an allegation that Petitioner has
recast the focus of his ineffective assistance claim on whether Patterson, by virtue of his guilty
plea, even had a right to assert a Fifth Amendment privilege. Respondent asserts that under this
alleged reformulation of the ineffective assistance claim, the content of Patterson’s now-known
statement to police was irrelevant. As such, Respondent reasons, no defect resulted from this

21

Court’s assumption about the content of the statement because knowing the content of
Patterson’s statement would not have altered this Court’s prior denial of the claim. (Id.)
Petitioner seeks leave to file a sur-reply “to address the State’s misrepresentations
regarding the requirements of an independent action and the basis of the instant Rule 60(d)
motion.” (ECF No. 103, at Page ID # 1295.) Specifically, Petitioner asserts, “extrinsic fraud is
not a required element of an independent action.” (Id.) Petitioner states that “the State’s
argument overlooks the fact that accident or mistake may also give rise to an independent
action.” (Id. at Page ID # 1295-1296.) Because the Court deems itself capable of gleaning from
relevant case law the elements of a motion for independent relief, the Court DENIES
Petitioner’s motion for leave to file a sur-reply. (ECF No. 103.)
Upon examination of the specific arguments Petitioner makes in an attempt to satisfy the
“indisputable elements” for Rule 60(d) relief, the Court concludes that Petitioner satisfies almost
none of them. Petitioner argues that the judgment “in equity and good conscience” ought not be
enforced because this Court resolved the ineffective assistance claim set forth in ground I-A
“based upon a mistakenly erroneous presumption about what Patterson had told the authorities.”
(ECF No. 97, at Page ID # 1227.) Petitioner also argues that “[t]his mistake prevented Petitioner
from receiving the benefit of a proper review of his IAC claim based on a full record.” (Id.)
Petitioner states in support of these arguments that when this Court agreed with the Ohio
Supreme Court’s assessment that defense counsel’s decision not to call Patterson was a virtually
unchallengeable tactical decision, “the District Court’s conclusion was premised on the mistaken
assumption that the version of the events indicated in Patterson’s letter that “Boone did it” was
contrary to what he had previously told State authorities in order to obtain his plea agreement.

22

(Id. at Page ID # 1227-228 (emphasis in original).) But that is not the case.
This Court’s conclusion unmistakably hinged on defense counsel’s express and repeated
representations on the record that a central reason counsel were reluctant to call Patterson,
despite the possibility that he could provide testimony favorable to Petitioner, was because
counsel had no idea what Patterson would say. Patterson would not tell them what he would
testify to or discuss the letter. It bears emphasizing that defense counsel were in possession of
Patterson’s March 28, 1997 statement and fully aware of its contents. Knowing the contents of
Patterson’s statement would not have changed this Court’s conclusion about the reasonableness
of defense counsel’s tactical decision not to call Patterson.
Even if Patterson’s statement unquestionably contained information favorable to
Petitioner, if defense counsel could not be sure that Patterson would testify consistent with such a
statement, counsel could still make a reasonable tactical decision not to call him. Petitioner goes
to great lengths to explain all of the ways that defense counsel could have used whatever
testimony Patterson might have offered, along with the March 28, 1997 statement and letter to
Petitioner, to impugn either Patterson himself, Derrick Boone, or the prosecutors. Review of
Petitioner’s arguments, however, reveals that they are premised on one speculative assumption
after another—none of which change the critical fact that defense counsel had no idea what
Patterson would testify to and that is the reason they elected not to call him.
This is also why any arguments by Petitioner about whether defense counsel were
mistaken as to whether Patterson actually had the right to assert a Fifth Amendment privilege are
unpersuasive. It was Patterson’s refusal to tell defense counsel what he would testify to,
favorable or unfavorable, and not whether Patterson would or could invoke the Fifth

23

Amendment, that made defense counsel leery of calling Patterson. That was a reasonable tactical
decision. More importantly, nothing about the now-known contents of Patterson’s March 28,
1997 statement undermines this Court’s agreement with the Ohio Supreme Court’s conclusion
that it was a reasonable tactical decision.
Similarly, whatever effect the now-known contents of Patterson’s statement might have
on the three scenarios this Court hypothesized as demonstrative of trial counsel’s strategic
reasoning, the statement does not alter the Court’s conclusion that counsel made a reasonable
tactical decision not to call Patterson. It bears repeating that the contents of Patterson’s
statement do not address the fact that defense counsel did not know what Patterson would testify
to and that is why they decided not to call him.
Because the basis of defense counsel’s tactical decision not to call Patterson was the fact
that counsel did not know what Patterson would testify to, the now-known contents of his March
28, 1997 statement are irrelevant. That said, having now seen the statement, this Court agrees
with Respondent that Petitioner “grossly mischaracterizes the import of Patterson’s statement to
police.” (ECF No. 100, at Page ID # 1278.) It is true, as Petitioner, asserts, that Patterson did
not implicate Petitioner. Petitioner glosses over the fact, however, that Patterson did not
implicate anyone else as the shooter either. Petitioner is also dismissive of the fact that Patterson
was being evasive about any specifics in an obvious effort to deny that he was present in the
apartment during the shootings and to otherwise downplay his involvement in the incident.
(ECF No. 98-1.) That undermines attaching any significance to details Patterson omitted, such
as who the shooter was. Petitioner nonetheless offers up Patterson’s failure in his March 28,
1997 statement to identify Petitioner as the shooter or place a gun in Petitioner’s hand, along

24

with Patterson’s letter to Petitioner cryptically stating that Patterson wanted to tell the truth that
“Boone did it,” as compelling evidence demonstrating Petitioner was not the principal offender
and is accordingly innocent of this death penalty specification.
Petitioner insists that Patterson was in the apartment, and therefore in a position to
identify whether “Boone did it.” To this point, Petitioner encourages the Court to disregard any
suggestion Patterson also made in his statement that he was not in the apartment during the
shootings because the prosecution’s theory of the case proved that Patterson was inside the
apartment during the shootings. Petitioner relies on Malaika Williamson’s testimony placing
Patterson inside the apartment at the time she heard the shots. That is a mischaracterization of
Ms. Williamson’s testimony. Ms. Williamson conceded more than once that from where she
was parked along the side of the building, she could not see the front door of the apartment
where the shootings took place. (Tr. Vol. VIII, at 201, 227.) Any testimony by Ms. Williamson
placing anyone inside the apartment was an assumption on her part based on the fact that she
could not see them. Petitioner appears to want it both ways with respect to Patterson’s March
28, 1997 statement: Petitioner stresses the parts that he deems favorable and urges the Court to
accept them without question, while dismissing any parts that would not help him or were
untrue. That seems a dubious position to take when seeking equitable relief.
Also dubious is Petitioner’s assumption, in urging why Patterson’s previously unknown
statement was so critical to this Court’s denial of ground I-A, that the March 28, 1997 statement
constitutes the only information that Patterson ever gave to police. Even if the March 28, 1997
statement is the only statement by Patterson referenced in the record, it seems implausible that
Patterson did not provide authorities any information beyond that statement. Up until Patterson

25

sent his letter to Petitioner claiming that “Boone did it,” the prosecution had intended to honor a
favorable plea agreement with Patterson and to call Patterson as a witness against Petitioner.
That strongly suggests that the prosecution believed that Patterson would testify consistent with
their case that Petitioner had planned the robberies and/or was the shooter.
In an effort to satisfy the Sixth Circuit’s admonition in Mitchell that any Rule 60(d)
motion raised in the context of habeas corpus should make a strong showing of actual innocence,
Petitioner asserts that the omission of Patterson’s testimony prevented Petitioner from
establishing that he is actually innocent of the relevant death penalty specification by preventing
Petitioner from suggesting that someone else was responsible for or participated in the shootings.
(ECF No. 97, at Page ID # 1237-244.) For example, Petitioner argues that without Patterson,
defense counsel presented no independent witness to challenge the testimony of Derrick
Boone—the only eyewitness to the shootings who expressly identified Petitioner as the sole
shooter. (Id. at Page ID # 1240.) Petitioner’s argument assumes that Patterson would have
testified that Derrick Boone was the shooter or that Patterson would not have identified
Petitioner as the shooter. That assumption is supported only by the cryptic letter that Patterson
would not discuss with defense counsel or even admit to having written. In finding that
counsel’s tactical choice not to call Patterson did not prejudice Petitioner, this Court noted that
Petitioner had presented no evidence establishing what Patterson would testify to. Petitioner still
has not. Petitioner’s arguments thus do not make the “strong showing of actual innocence” that
Mitchell demands.
Continuing with the elements of a Rule 60(d) independent action, Petitioner states in his
conclusion that there is no current remedy at law and that this Court’s incorrect assumption about

26

facts critical to its denial of ground I-A constitute “extraordinary circumstances” in view of the
fact that Petitioner faces a set execution date. (ECF No. 97, at Page ID # 1245-246.) The Court
disagrees that Petitioner has no current remedy at law in view of the fact that he is not precluded
from requesting authorization to file a second or successive habeas corpus petition. The Court’s
discussion above also undermines a determination that the instant case presents “extraordinary
circumstances” or a “grave miscarriage of justice.” With respect to the element of an “absence
of fault or negligence on the part of the defendant,” Mitchell, 651 F.3d at 595, it appears to the
Court that Petitioner shares in the blame for the fact that Michael Patterson’s March 28, 1997
statement was not made a part of the record if the statement is as critical as Petitioner asserts.
Petitioner states in his motion that it was only after being appointed on February 27, 2013 to
prepare for Petitioner’s clemency proceedings that “the factual basis for this pleading was
discovered.” (ECF No. 97, at Page ID # 1218.) This strongly suggests that Petitioner has been
in possession of Patterson’s statement all along.
Having determined that Petitioner fails to satisfy the “indisputable elements” for a Rule
60(d) independent action and crediting Petitioner’s insistence that his application for relief “is
not a 60(b) motion at all” (ECF No. 101, at Page ID # 1280), the Court construes this motion as
an unauthorized second petition. Petitioner asserts that his arguments target the integrity of the
prior habeas proceedings, but Petitioner is actually asking this Court to revisit its consideration
of the ineffective assistance claim set forth in ground I-A and resolve that claim in Petitioner’s
favor. Gonzalez v. Crosby and its progeny define that as a second or successive petition.
In Gonzalez, the Supreme Court provided parameters for determining whether a request
for relief styled as a Rule 60(b) motion for relief from judgment is in fact a second or successive

27

petition within the meaning of 28 U.S.C. § 2244(b). The Supreme Court explained:
A motion that seeks to add a new ground for relief, as in Harris, supra, will of
course qualify. A motion can also be said to bring a “claim” if it attacks the
federal court’s previous resolution of a claim on the merits, since alleging that the
court erred in denying habeas relief on the merits is effectively indistinguishable
from alleging that the movant is, under the substantive provisions of the statutes,
entitled to habeas relief. That is not the case, however, when a Rule 60(b) motion
attacks, not the substance of the federal court’s resolution of a claim on the merits,
but some defect in the integrity of the federal habeas proceedings.
Gonzalez, 545 U.S. at 532 (emphasis in original). To that last point, the Supreme Court clarified
that an attack based on the movant’s own conduct or habeas counsel’s omissions “ordinarily does
not go to the integrity of the proceedings, but in effect asks for a second chance to have the
merits determined favorably.” Id. at n.5. In the instant case, Petitioner persistently casts his
request for relief as going to the integrity of the prior habeas corpus proceedings by targeting this
Court’s assumption as to the previously unknown contents of Michael Patterson’s statement to
authorities. In effect, Petitioner is asking for a second chance to have the ineffective assistance
claim set forth in ground I-A decided in his favor.
In Post v. Bradshaw, 422 F.3d 419 (6th Cir. 2005), the Sixth Circuit rejected a
petitioner’s motion to remand his case so that the district court could consider a Rule 60(b)
motion because the Sixth Circuit found that Rule 60(b) motion to be second or successive
petition. According to the Sixth Circuit:
[P]ost’s Rule 60(b) motion seeks to advance, through new discovery, claims that
the district court previously considered and dismissed on substantive,
constitutional grounds: i.e., on the merits. The motion is therefore a second or
successive habeas petition. It makes no difference that the motion itself does not
attack the district court’s substantive analysis of those claims but, instead,
purports to raise a defect in the integrity of the habeas proceedings, name his
counsel’s failure—after obtaining leave to pursue discovery—actually to
undertake that discovery; all that matters is that Post is “seek[ing] vindication of”
or “advance[ing]” a claim by taking steps that lead inexorably to a merits-based
28

attack on the prior dismissal of his habeas petition.
Id. at 424-25. See also Thompkins v. Berghuis, 509 F. App’x 517, 519 (6th Cir. 2013)
(“Although the Supreme Court indicated that fraud on the federal habeas court was an acceptable
reason to bring a Rule 60(b) motion because it attacks a defect in the integrity of the proceedings,
the Court [in Gonzalez] noted that attacks that ‘in effect, ask[ ] for a second chance to have the
merits determined favorable’ do not go to the integrity of the proceeding and should instead be
characterized as a second or successive habeas petition.” (emphasis added)).1 That is precisely
what Petitioner is doing here.
First, the Court is not persuaded that Petitioner has identified a defect in the integrity of
the prior habeas proceedings sufficient to warrant Rule 60(b) relief. Even if the better course of
action might have been for this Court to have ordered the production of Patterson’s March 28,
1997 statement, the Court cannot agree that its failure to do undermines the integrity of the prior
habeas proceedings with respect to the Court’s denial of Petitioner’s ineffective assistance claim.
That is especially so in view of the relatively inconsequential import of the now-known March
28, 1997 statement. (ECF No. 98-1.)
More importantly, although Petitioner attempts to characterize his instant request for
relief as going to the integrity of the prior habeas corpus proceedings, Petitioner is unmistakably
asking the Court to revisit its previous denial of ground I-A and resolve that claim in his favor.
“Had the District Court addressed this claim based upon a full record,” Petitioner states in the
introduction of his motion, “the resolution of this claim would have been reasoned otherwise and

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The Court recognizes that Petitioner is asserting this Court’s assumption as to the
contents of Michael Patterson’s previously undisclosed March 28, 1997 statement to
authorities—not fraud—as the defect in the integrity of the prior habeas proceedings.
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the result would have been favorable to Mr. Jackson such that upon a grant of habeas relief, he
would not be subject to a death sentence as the principal offender.” (ECF No. 97, at Page ID #
1213 (emphasis added).) As in Gonzalez, Post, and Thompkins, Petitioner in effect is “ask[ing]
for a second chance to have the merits determined favorably.” Gonzalez, 545 U.S. at 532 n.5.
As the instant request for relief is a second or successive petition, this Court has
jurisdiction over it only if the Sixth Circuit has issued an order authorizing it. 28 U.S.C. §
2244(b)(3). Petitioner has neither sought nor obtained that authorization. The Court will
accordingly transfer the pleading to the Sixth Circuit to determine whether such authorization is
warranted. See, e.g., In re Bowling, 422 F.3d 434, 440 (6th Cir. 2005); see also In re Marsch,
209 F. App’x 481, 482-83 (6th Cir. 2006).
For the foregoing reasons, the Court DENIES Petitioner’s Motion for Independent Relief
(ECF No. 97), DENIES the Warden’s Motion to Dismiss (ECF No. 100), and DENIES
Petitioner’s Motion for Leave to File Sur-Reply (ECF No. 103). The Court further DIRECTS
the Clerk to TRANSFER Petitioner’s Motion for Independent Relief (ECF No. 97) to the Court
of Appeals for the Sixth Circuit as an unauthorized second or successive Petition.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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