Turner v. Warden

Filing 152

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON THE MERITS; REPORT AND RECOMMENDATIONS ON CERTIFICATE OF APPEALABILITY - It is therefore respectfully recommended that this ground for relief be denied on the basis the precedent cited in the Report, but that a certificate of appealability 149 be granted. Objections to R&R due by 3/5/2012. Signed by Magistrate Judge Michael R Merz on 02/15/2012. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MICHAEL R. TURNER,
Petitioner,
‐vs‐
STUART HUDSON, Warden,
Respondent.

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     Case No.  2:07‐cv‐595
     District Judge Michael R. Barrett
     Magistrate Judge Michael R. Merz

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON THE MERITS;
REPORT AND RECOMMENDATIONS ON CERTIFICATE OF APPEALABILITY

This capital habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 144)
to the Magistrate Judge’s Report and Recommendations on the merits (the “Report,” Doc. No. 135).
The Warden has filed a Response to the Objections (Doc. No. 148). The General Order of
Reference for the Dayton location of court permits a magistrate judge to reconsider decisions or
reports and recommendations when objections are filed.
The case is also before the Court on Petitioner’s Motion for Certificate of Appealability
(Doc. No. 149) which the Warden opposes (Doc. No. 150) and as to which Petitioner has filed a
Reply in support (Doc. No. 151). Previously this Magistrate Judge has considered motions for
certificates of appealability in capital cases after the District Judge has ruled on the merits of the
petition. However, that practice has been modified in this and other capital cases to comply with
the amendment to Habeas Rule 11, effective December 1, 2009, providing that the “district court
must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”
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(See Order, Doc. No. 138; District Judge Barrett’s Order overruling objections Doc. No. 146).

Standard for Certificate of Appealability

As provided in 28 U.S.C. §2253, a petitioner seeking to appeal an adverse ruling in the
district court on a petition for writ of habeas corpus or on a § 2255 motion to vacate must obtain a
certificate of appealability before proceeding. The statute contemplates issuance by a circuit judge,
but Rule 11(a) of the Rules Governing § 2254 cases provides:
The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant. Before entering
the final order, the court may direct the parties to submit arguments
on whether a certificate should issue. If the court issues a certificate,
the court must state the specific issue or issues that satisfy the
showing required by 28 U.S.C. § 2253(c)(2). If the court denies a
certificate, the parties may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of Appellate
Procedure 22. A motion to reconsider a denial does not extend the
time to appeal.

The Rule codifies prior practice in the Sixth Circuit. Lyons v. Ohio Adult Parole Authority, 105 F.3d
1063 (6th Cir. 1997); Kincade v. Sparkman, 117 F.3d 949 (6th Cir. 1997)(adopting analysis in Lozada
v. United States, 107 F.3d 1011, 1017 (2nd Cir. 1997).
To obtain a certificate of appealability, a petitioner must show at least that “jurists of reason
would find it debatable whether the petition states a valid claim of denial of a constitutional right.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). That is, it must find that reasonable jurists would find
the district court’s assessment of the petitioner’s constitutional claims debatable or wrong or because
they warrant encouragement to proceed further. Banks v. Dretke, 540 U.S. 668, 705 (2004); Miller-

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El v. Cockrell, 537 U.S. 322, 336 (2003). If the district court dismisses the petition on procedural
grounds without reaching the constitutional questions, the petitioner must also show that jurists of
reason would find it debatable whether the district court was correct in its procedural ruling. Slack,
529 U.S. at 484. The procedural issue should be decided first so as to avoid unnecessary
constitutional rulings. Slack, 529 U.S. at 485, citing Ashwander v. TVA, 297 U.S. 288, 347
(1936)(Brandeis, J., concurring). The first part of this test is equivalent to making a substantial
showing of the denial of a constitutional right, including showing that reasonable jurists could
debate whether the petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further, Slack v. McDaniel, 529 U.S.
473, 484 (2000), quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983). The relevant holding in
Slack is as follows:
[W]hen the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying constitutional
claim, a COA should issue (and an appeal of the district court's order
may be taken) if the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the
denial of a constitutional right, and that jurists of reason would find
it debatable whether the district court was correct in its procedural
ruling.

529 U.S. at 478.
The standard is higher than the absence of frivolity required to permit an appeal to proceed
in forma pauperis. Id. at 893.
[O]bviously the petitioner need not show that he should prevail on
the merits... . Rather, he must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are 'adequate to
deserve encouragement to proceed further.'

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Id. n.4. Accord, Miller-El v. Cockrell, 537 U.S. 322 (2003). A certificate of appealability is not to
be issued pro forma or as a matter of course. Id. at 1040. Rather, the district and appellate courts
must differentiate between those appeals deserving attention and those which plainly do not. Id. A
blanket certificate of appealability for all claims is improper, even in a capital case. Frazier v.
Huffman, 348 F.3d 174 (6th Cir. 2003), citing Porterfield v. Bell, 258 F.3d 484 (6th Cir. 2001).

Application of Cullen v. Pinholster

The Report in this case was filed April 22, 2011. About two weeks earlier, the Supreme
Court decided Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388, 1400-01(2011). The Magistrate
Judge had already held an evidentiary hearing in this case, based on an understanding of the AEDPA
which Pinholster rejected. On this point the Report stated:
In granting the evidentiary hearing in this case, the Magistrate Judge
proceeded on a reading of the Antiterrorism and Effective Death
Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the
“AEDPA”) which has now been held to be erroneous in Cullen v.
Pinholster, 563 U.S. ___, 2011 U.S. LEXIS 2616 (Apr. 4, 2011). In
the analysis that follows, none of the evidence presented at the
evidentiary hearing is relied upon to determine that the state courts’
rulings on any federal constitutional claim were contrary to or an
unreasonable application of clearly established federal law, a process
prohibited by Cullen. The Magistrate Judge does not understand
Cullen to prohibit reliance on such evidence, taken before Cullen was
decided, for other purposes.
(Report, Doc. No. 135, PageID 3765.)
Petitioner raises four objections to this Court’s application of Pinholster, each of which is
considered in turn.

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Pinholster Objection 1:
Turner first attempts to distinguish Pinholster by claiming that he was diligent in attempting
to develop facts in state court, but the petitioner in Pinholster was not. The express holding in
Pinholster precludes that distinction and is as follows:
[W]e . . . hold that evidence introduced in federal court has no
bearing on § 2254(d)(1) review. If a claim has been adjudicated on
the merits by a state court, a federal habeas petitioner must overcome
the limitation of § 2254(d)(1) on the record that was before that state
court.
Pinholster, 131 S. Ct. at 1400. The Supreme Court did not recognize an exception for cases where
the petitioner had been diligent in state court. Petitioner’s quotation of the phrase “insufficient
effort” from page 1401 of Pinholster at PageID 3906 of the Objections is taken completely out of
context. They are not part of any distinction drawn by the Supreme Court allowing evidentiary
hearings to those habeas petitioners who were diligent in state court. Instead, they are part of a
twenty-six word quotation from the Court’s prior decision in Michael Williams v. Taylor, 529 U.S.
420 at 427-429 (2000). Whether or not Turner’s efforts to gather or present evidence in state court
were diligent, Pinholster makes it clear that this Court must make its review under § 2254(d)(1) on
the basis of the record before state courts as to any claim those courts decided on the merits.

Pinholster Objection 2:
Turner’s second objection to application of Pinholster is that the evidence taken in this Court
should be considered “because the state courts unreasonably applied clearly established federal law
by denying discovery and insufficiently analyzing Turner’s constitutional claim under Strickland,
satisfying § 2254(d)(1).” (Objections, Doc. No. 144, PageID 3908.) However, no Supreme Court

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precedent commands discovery or any particular form of analysis in state post-conviction process.
Turner’s argument seems to be that the state courts’ adjudication of his ineffective assistance
of counsel claims was unreasonable because those courts did not allow gathering and presentation
of the necessary evidence of ineffective assistance. He asserts
a federal habeas petitioner may satisfy the “unreasonableness”
inquiry of § 2254(d)(1) by demonstrating that the state court’s
pur por t ed merits adjudication and decision was
unreasonable––whether procedurally, substantively, or some
combination of both. See id.[Pinholster at 1399]; see also Panetti v.
Quarterman, 551 U.S. 930, 948 (2007) (finding a state court’s failure
to provide proper procedures “an unreasonable application of clearly
established Supreme Court law,” satisfying §2254(d)).
(Objections, Doc. No. 144, PageID 3909). Pinholster at page 1399 does not even begin remotely
to suggest that a habeas prisoner can satisfy § 2254(d)(1) by showing that a state court determination
on the merits was procedurally unreasonable. In Panetti, the Supreme Court held that failure to
provide a habeas petitioner with “the procedures mandated by Ford [v. Wainwright, 477 U.S. 399,
106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986)] constituted an unreasonable application of clearly
established law as determined by this Court.” 551 U.S. at 948. The procedure mandated by Ford
and found missing in Panetti was, in an incompetency to be executed case, “adequate means by
which to submit expert psychiatric evidence in response to the evidence that had been solicited by
the state court.” Id. There is no clearly established Supreme Court precedent mandating any
particular procedure for the state courts to follow in adjudicating ineffective assistance of counsel
claims.
Turner relies heavily on Massaro v. United States, 538 U.S. 500 (2003), for the proposition
that ineffective assistance claims should be decided on a record developed for that purpose, rather
than on a direct appeal record (Objections, Doc. No. 144, PageID 3911). The Magistrate Judge
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agrees as a matter of judicial policy and before Pinholster routinely granted both discovery and
evidentiary hearings on those claims when there were extra-record facts which might be material,
e.g., when trial counsel’s strategy was in issue. That is one of the reasons an evidentiary hearing
was granted in this case. But Massaro establishes practice only for ineffective assistance of counsel
claims in federal prosecutions. The Supreme Court has never suggested that this process is
constitutionally mandated.
Barnes v. Elo, 231 F.3d 1025 (6th Cir. 2000), and Moss v. Hoffbauer, 286 F.3d 851 (6th Cir.
2002), both cited by Petitioner for the necessity of evidentiary hearings ( PageID 3911), are both
pre-Pinholster.

Pinholster Objection 3:
Petitioner’s third objection under Pinholster, to wit, that the Report contains references to
evidence taken at the evidentiary hearing despite Pinholster, is well taken. Those references are
inconsistent with the general statement that the Report does not consider any such evidence. Any
reliance on such evidence will be reconsidered and eliminated in this Supplemental Report and
Recommendations.

Pinholster Objection 4:
Turner’s fourth Pinholster objection is that the decision should not be read as precluding
consideration of evidence introduced in federal habeas for the purpose of overcoming the
presumption of correctness of state court findings of fact found in 28 U.S.C. § 2254(e)(1). The

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Magistrate Judge agrees. Pinholster itself recognizes that evidence introduced at a hearing permitted
under 28 U.S.C. § 2254(e)(2) can be considered “where § 2254(d)(1) does not bar federal habeas
relief.” 131 S. Ct. at 1401. This reading is consistent with the canon of statutory construction which
requires that a statute be interpreted “so as not to render one part inoperative,” Colautti v. Franklin,
439 U.S. 379, 392 (1979), challenge though that is with the AEDPA.
However, it is also clear from Pinholster that a petitioner cannot rely on evidence introduced
in federal court to show that a state court decision is based on an unreasonable determination of the
facts under § 2254(d)(2); that determination must be base solely on consideration of “the evidence
presented in the State court proceeding.” Thus this Court cannot fully adopt Petitioner’s argument
that “[w]hen subsidiary findings are disproved under § 2254(e)(1), they “fall away” for purposes of
§ 2254(d) analysis, thus narrowing the foundation that the state court’s decisions and determinations
rely upon.” Objections, Doc. No. 144, PageID 3917, citing Lambert v. Blackwell, 387 F.3d 210 at
235-36 (3rd Cir. 2004); and Williams v. Beard, 637 F.3d 195, 204, n.7 (3d Cir. 2011) (holding that
a federal court considers only the remaining, unrebutted, factual findings when assessing a
state-court decision for reasonableness under § 2254(d)(2)). Both cited opinions are pre-Pinholster.
In this portion of the Objections (PageID 3915-3919), Petitioner does not point to any
portion of the Report which is inconsistent with this reading of Pinholster. The Magistrate Judge
will consider below any particularized objections which rely on this reading. See Howard v. Sec.
of HHS, 932 F.2d 505 (6th Cir. 1991).

Ground One

In his first ground for relief, Turner contends that his statements to police following his arrest
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were neither knowing, intelligent, nor voluntary on account of his intoxication, need for
“medication,” and because he was suffering the effects of withdrawal from alcohol and cocaine at
the time of his interrogation. (Petition, Doc. No. 20 at PAGEID 529-533.) Respondent argued this
claim was both procedurally defaulted and without merit (Return of Writ, Doc. No. 25, at PageID
730-737). The Report and Recommendations agreed with both of Respondent’s arguments (Report
and Recommendations, Doc. No. 135, PageID 3737-3744.)

Procedural Default Analysis
Turner objects to the Report’s conclusion that this first ground for relief was procedurally
defaulted under Ohio’s criminal res judicata doctrine. Acknowledging that the state courts relied
on this doctrine, he argues that (1) their reliance was misplaced and (2) the default is excused by
ineffective assistance of trial counsel and ineffective assistance of appellate counsel (Objections,
Doc. No. 144, PageID 3920-3926).
The record shows that the Franklin County Common Pleas Court adopted the State’s res
judicata argument as presented (Appendix, Vol. 8 at 377). The State’s argument was merely that
this issue could have been presented on direct appeal but was not. On appeal, the court held the
evidence outside the record which was presented was not sufficient to defeat the application of res
judicata. State v. Turner, No. 04-AP-1143, 2006 WL 391820 at *3, 2006-Ohio-761 at ¶14 (Ohio
App. 10 Dist. Feb. 21, 2006)(unpublished). Thus it acknowledged that there was evidence outside
the record presented, but held it was not of sufficient quality.
Turner’s Objections correctly note as a general matter that a federal habeas court can bypass
a state court res judicata conclusion if the State courts have misapplied their own law. (Objections,

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Doc. No. 144, PageID 3925, citing, inter alia, Hill v. Mitchell, 400 F.3d 308, 314 (6th Cir. 2005), and
Greer v. Mitchell, 264 F.3d 663, 673 (6th Cir. 2001)). However, Turner has failed to demonstrate,
or even attempt to demonstrate, how the Ohio courts’ res judicata analysis was a misapplication in
this case.
Even if the Ohio courts’ misapplied Ohio res judicata doctrine, Ground One is still
procedurally defaulted because Turner has not shown excusing cause and prejudice. Assuming
arguendo that it was deficient performance to fail to move to suppress his post-arrest admissions to
the police, he can show no prejudice because the statements were not admitted in evidence against
him. Faced with overwhelming evidence of guilt and advised by experienced capital counsel, he
pled guilty.

Merits Analysis:
For the same reason that he cannot show excusing prejudice, Turner also cannot demonstrate
any merit in this claim.
It is therefore again respectfully recommended that the first ground for relief be dismissed
with prejudice as procedurally defaulted and without merit. Reasonable jurists would not disagree
with this conclusion and the Court should therefore deny a certificate of appealability.

Ground Two

In his second ground for relief, Turner contends his repeated requests for counsel during his
interrogation by the Reynoldsburg police officers were ignored in violation of his federal

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constitutional rights. (Petition, Doc. No. 20 at PageID 534-38.) Respondent argued the claim is
both procedurally defaulted and meritless. (Return of Writ, Doc. No.25 at PageID 738-44.)
The Report agrees with the procedural default analysis, expressly finding that this claim was
based on facts of record and therefore could have been presented on direct appeal. (Report, Doc. No.
135, PageID 3746.) The Report also concludes Ground Two is without merit on the same basis as
Ground One.
Turner objects to both the procedural default and merits analysis (Objections, Doc. No. 144,
PageID 3931-3940). Having reviewed those objections, the Magistrate Judge concludes they do not
require additional analysis beyond what is given in the Report. Because reasonable jurists would
not disagree with the Report’s conclusions, Turner should be denied a certificate of appealability
on this second ground for relief.

Grounds Three and Four

Turner’s third and fourth grounds for relief read as pled:
3.

The trial court’s failure to obtain a proper jury waiver and to
conduct a proper guilty plea colloquy deprived Turner of due
process of law in violation of the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.

4.

Michael Turner’s jury waiver was not knowing, voluntary
and intelligent and violated the Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution.

(Petition, Doc. No. 20.)
The Report analyzed these two Grounds for Relief together (Report, Doc. No. 135, PageID
3748-3755). The state courts considered the jury waiver claim on the merits. The Magistrate Judge
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therefore considered this claim under § 2254(d)(1) and concluded that the state courts’ decision was
not an objectively unreasonable application of clearly established federal law. (Report, Doc. No.
135, PageID 3751). When the claim was raised anew in post-conviction, the state courts rejected
it procedurally on res judicata grounds and the Report concluded this was appropriate. Id. at 3752.
As to the guilty plea colloquy, Turner’s claim was that the plea was invalid because he was
not informed that a single juror could prevent a capital sentence (Traverse, Doc. No. 32, PageID
974). The Report concluded that the state court decision rejecting this claim was not objectively
unreasonable. (Report, Doc. No. 135, PageID 3755.)
Turner objects that the written waivers were “vague” and the colloquys on both the jury
waiver and guilty plea were “inadequate.” (Objections, Doc. No. 144, PageID 3942.) While the
Objections speak at length of the importance of the jury trial right in capital cases, Turner does not
cite to any United States Supreme Court precedent to the effect that the jury waiver in this case was
constitutionally insufficient (See Objections, Doc. No. 135, PageID 3941-3945) or that the guilty
plea colloquy was inadequate. Id. at PageID 3945-3952).
Turner’s Fourth Ground for Relief asserts his jury waiver was not knowing, intelligent, and
voluntary, but also repeats the claim that the colloquy was insufficient. No further analysis is
needed on this Ground for Relief beyond what is given in the Report.
The circumstances of both jury waiver and guilty plea in a capital case are sufficiently
unusual and the case law therefore relatively sparse that the Magistrate Judge recommends granting
a certificate of appealability on these two grounds for relief.

Ground Five

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In his fifth ground for relief, Turner contends that the trial court failed to examine witnesses
and hear evidence before making a determination as to his guilt in violation of Ohio R. Crim. Proc.
11 and Ohio Rev. Code § 2945.06. (Petition, Doc. No. 20 at PAGEID 548-9.) Respondent asserted
that this was purely a matter of state law and Turner replied that Ohio’s violation of its own rules
of criminal procedure deprived him of due process (Return of Writ, Doc. No. 25, PageID 764-72;
Traverse, Doc. No. 32, PageID 994-97.) Because the State did not plead a procedural default
defense, however, the Report reaches the merits. On the merits, however, the Magistrate Judge
concluded “Turner has not stated a claim cognizable in habeas corpus. . . .” (Report, Doc. No. 135,
PageID 3761).
Upon review of the Objections, the Magistrate Judge does not believe this Ground for Relief
requires further analysis. No certificate of appealability should be issued on this claim.

Ground Six

In his sixth ground for relief, Turner claims he was denied effective assistance of counsel at
the guilt phase of his trial court proceedings in four respects: (1) failure to move to suppress postarrest statements to the police on intoxication/involuntariness grounds; (2) failure to move to
suppress post-arrest statements to the police on failure to provide counsel grounds; (3) failure to
ensure Turner could withdraw his guilty plea if a death sentence was imposed; and (4) failure to
inform Turner of the consequences of the jury waiver (Petition, Doc. No. 20 at PAGEID 74).
As to the first two of these sub-claims, the Magistrate Judge concluded Turner had not shown
prejudice as required by the second prong of Strickland v. Washington, 466 U.S. 668 (1984), and

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the state courts’ decision to that effect was neither contrary to nor an objectively unreasonable
application of federal law (Report, Doc. No. 135, PageID 3767).
In his Objections, Turner relies on his affidavit in post-conviction, but the quotation refers
to the jury trial waiver, not failure to file a motion to suppress. No factual support is offered to show
prejudice and in fact, as emphasized many times, the evidence of guilt was literally overwhelming.1
The State did not need Turner’s post-arrest admissions to police to convict him; their suppression
would not have significantly damaged their case.
In objection, Turner argues “[a]ny prosecution of aggravated murder, regardless of the
strength of the remaining evidence, is infinitely strengthened if the state has inculpatory statements
from the defendant.” (Objections, Doc. No. 144, PageID 3979.) Of course, the 911 dispatcher had
already recorded inculpatory statements by Turner before the police arrived. The Court must weigh
the actual evidence in this case, not conclusory allegations about what present counsel says any
competent death penalty attorney would do.
In considering the objections on these two sub-claims, the Magistrate Judge has not relied
on any evidence from the evidentiary hearing.
Turner’s next claim is that counsel provided constitutionally ineffective assistance of counsel
by not ensuring Turner had the right to withdraw his guilty plea if a death verdict was returned. The
Magistrate Judge rejected Respondent procedural default defense to this claim (Report, Doc. No.
135, PageID 3768-3770). On the merits, the Magistrate Judge found that the record made in postconviction did not support the existence of a practice in Franklin County to permit withdrawal of

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In the many capital habeas cases this Court has heard, this is the only one where the
dying pleas of the victim were recorded by the 911 dispatcher and would have been available for
a jury to hear.
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a guilty plea in a capital case if death was imposed. Ohio law on its face does not support such a
practice and there is no proof that trial counsel could have negotiated such an agreement. The
Magistrate Judge also found that the evidence submitted on that point in the habeas evidentiary
hearing did not support the existence of such a practice (Report, Doc. No. 135, PageID 3772).
Because the state courts did not decide this claim on the merits, Pinholster does not preclude
considering that evidence.
In the Objections, Turner again asserts that it was standard practice in Franklin County,
Ohio, in 2002, to permit a withdrawal of the jury trial waiver and guilty plea if a death sentence was
imposed. While the evidence presented on this point in post-conviction was competent, it was not
conclusive proof that such a practice existed in Franklin County and certainly not any proof that
such a condition would have been accepted by the prosecutors in this case. This sub-claim should
be denied on the merits, but Turner should be allowed a certificate of appealability if the District
Court dismisses it.
Turner’s next sub-claim of ineffective assistance of trial counsel is that his counsel did not
ensure that Turner was fully informed of the consequences of his jury waiver. The state courts
decided this claim on the merits, concluding that Turner’s self-serving affidavit in post-conviction
did not establish that his jury trial waiver was not knowing, intelligent, and voluntary. The
Objections do not require modification of this conclusion, but Turner should be allowed a certificate
of appealability if the District Court dismisses this claim.

Ground Seven

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In his seventh ground for relief, Turner asserts his convictions on the death penalty
specifications attached to each count of aggravated murder were not supported by sufficient
evidence. (Petition, Doc. No. 32 at PageID 575-78.) The Magistrate Judge concluded this ground
with its three sub-claims was decided on the merits by the state courts and thus preserved for habeas
merits review, but that the state courts’ decision was not objectively unreasonable (Report, Doc. No.
135, PageID 3777-3782).
An allegation that a verdict was entered upon insufficient evidence states a claim under the
Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.
Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987,
991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order for a
conviction to be constitutionally sound, every element of the crime must be proved beyond a
reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt . . . . This familiar standard gives full play to the responsibility
of the trier of fact fairly to resolve conflicts in the testimony, to weigh
the evidence and to draw reasonable inferences from basic facts to
ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006).

First sub-claim: Jennifer’s “testimony”
The first sub-claim here is that there was insufficient evidence to support the guilty finding
on the specification that Jennifer was killed to prevent her testimony against Turner or in retaliation
for past testimony. The Ohio Supreme Court on direct appeal found that the facts supporting this

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specification were to be found in a statement of facts (State’s Exhibit 8) to which the defense
stipulated with exceptions which are not material to this claim. State v. Turner, 105 Ohio St. 3d 331,
¶ 36 (2005). The court concluded that there was no live testimony because a stipulation is “a
substitute for evidence, in that it does away with the need for evidence.” Id. ¶ 40, citing 9 Wigmore,
Evidence (Chadbourn Rev.1981) 821, Section 2588. Turner does not object to this conclusion – that
a stipulation can substitute for live evidence – for Jackson v. Virginia purposes.
Turner denies that there were sufficient facts from which the required elements of the
specification under Ohio law could be found. Before the Ohio Supreme Court, Turner claimed there
was no evidence that Jennifer Turner had ever given “testimony” against Michael Turner. The Ohio
Supreme Court, however, found that it had in the past interpreted the testimony element as including
the filing of a criminal complaint. Id. at ¶ 54. The stipulation showed that Jennifer had filed
criminal complaints against Turner in March, April, and May, 2001. Id. at ¶ 55.
In the Report the Magistrate Judge accepted, as he was bound to do, the Ohio Supreme
Court’s interpretation of “testimony” in the relevant statute. Under Winship and Jackson, supra,it
is for the States to decide what constitute the elements of crimes and then the Fourteenth
Amendment requires those elements be proved beyond a reasonable doubt. The definition of
testimony referred to by the Ohio Supreme Court in this case was not adopted for this case, but had
been handed down in a prior capital case, State v. Filiaggi, 86 Ohio St.3d 230, 248 (1999). The
Report concluded that finding the existence of this element was not contrary to or an unreasonable
application of Jackson. (Report, Doc. No. 135, PageID 3779.)
Turner’s objection is “[w]ords in a statute are to be given their plain and ordinary meaning
unless it is otherwise clearly indicated. Crane v. Commr. of Internal Revenue, 331 U.S. 1, 6 (1947),”

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(Objections, Doc. No. 144, PageID 3998). Crane is a straight statutory interpretation case dealing
with § 111(a) of the Internal Revenue Code of 1938. It in no way suggests there is a constitutional
mandate on the States to interpret their own statutes in accordance with that maxim.
Moreover under Ohio law a criminal complaint must be sworn to by the complainant. Ohio
R. Crim. P. 3. A complaint must be under oath if it is to support issuance of an arrest warrant.
Gerstein v. Pugh, 420 U.S. 103 (1975). Thus there is nothing esoteric in the Ohio Supreme Court’s
determination that filing a criminal complaint constitutes giving testimony. Of course there was
ample evidence that Turner’s killing of Jennifer was motivated by her filing the complaints: he told
at least two people he intended to kill her for taking him to court for harassment. State v. Turner,
105 Ohio St. 3d 331, ¶ 56 (2005). Turner’s statement in his Objections that “[t]here was no evidence
that Jennifer Turner had or intended to provide “testimony” against Michael Turner for a crime that
he committed and that she witnessed” (PageID 3998, repeated virtually verbatim at PageID 4000)
is blatantly false. The Court should deny this sub-claim on the merits and also deny a certificate of
appealability because no reasonable jurist would disagree with this conclusion.

Second sub-claim: Course of conduct specification
In the second sub-claim, Turner attacks the course of conduct specification finding with the
assertion that “the evidence before the state trial court ‘clearly demonstrates that he had no reason
to and no purpose to kill Ronald Seggerman . . . until Seggerman attacked him.’” (Traverse, Doc.
No. 32 at PageID 1041-42.) On this claim, the Ohio Supreme Court held
As to the R.C. 2929.04(A)(5) course-of-conduct specification, Turner
contends that the stipulated facts are insufficient to prove that he
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purposefully killed Ronald Seggerman and therefore to prove that he
purposefully killed two or more persons. We disagree. After disabling
and disarming Seggerman, Turner beat him, forced him to back up
100 yards, then stabbed him at least four times. As we said in
discussing Turner's third proposition, these facts are sufficient to
permit a finding that Turner harbored a purpose to kill.
105 Ohio St. 3d at ¶ 57.
In a case such as this to which the AEDPA applies, a habeas court must give two levels of
deference to the state courts’ decisions:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine whether,
viewing the trial testimony and exhibits in the light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d
560 (1979). In doing so, we do not reweigh the evidence, re-evaluate
the credibility of witnesses, or substitute our judgment for that of the
jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993).
Thus, even though we might have not voted to convict a defendant
had we participated in jury deliberations, we must uphold the jury
verdict if any rational trier of fact could have found the defendant
guilty after resolving all disputes in favor of the prosecution. Second,
even were we to conclude that a rational trier of fact could not have
found a petitioner guilty beyond a reasonable doubt, on habeas
review, we must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In other words, in a a sufficiency of the
evidence habeas corpus case, deference should be given to the trier-of-fact's verdict under Jackson
v. Virginia and then to the appellate court's consideration of that verdict, as commanded by the
AEDPA. Tucker v. Palmer, 541 F.3d 652 (6th Cir. 2008). Giving that deference in the Report, the

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Magistrate Judge concluded the state courts’ conclusion that there was sufficient evidence on this
specification was not an unreasonable application of Jackson. (Report, Doc. No. 135, PageID 3780).
The Objections recite the evidence that Seggerman provoked Turner. If believed, this
evidence could have led the trier of facts (in this case, the three-judge panel weighing the
stipulation) to conclude that Turner’s killing of Seggerman was not purposeful, thereby precluding
a conviction on this specification. Giving the appropriate level of deference, the Magistrate Judge
cannot say that there was insufficient evidence to convict. However, if the District Court adopts the
recommendation to dismiss this sub-claim, it should grant Turner a certificate of appealability.

Third sub-claim: Turner’s previous conviction of purposeful attempted homicide
Turner was also convicted of a specification under Ohio Revised Code § 2929.04(A)(5)
which requires proof that “[p]rior to the offense at bar, the offender was convicted of an offense an
essential element of which was the purposeful killing of or attempt to kill another . . .” In deciding
this sub-claim on the merits, the Ohio Supreme Court found that it was “undisputed that the state
of Virginia convicted Turner of attempted murder in 1980.” 105 Ohio St. 3d 331 at ¶ 44.
Furthermore,
Contrary to Turner's argument, purpose to kill is an essential element
of attempted murder under Virginia law. The Virginia Supreme Court
has held: "To sustain a conviction of an attempted crime, the
evidence must establish a specific intent to commit the crime ***."
Howard v. Commonwealth (1981), 221 Va. 904, 906, 275 S.E.2d 602.

Accordingly, in order to sustain a conviction of attempted murder, the
evidence must establish a specific intent to kill, as the Virginia
Supreme Court has held. "[A]ttempted murder requires proof of an
intent to kill *** ." Martin v. Commonwealth (1991), 242 Va. 1, 5,
406 S.E.2d 15, 7 Va. Law Rep. 2757"[I]n order to prove the crime of
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attempted murder, the evidence must show a specific intent to kill the
victim *** coupled with some overt but ineffectual act in furtherance
of this purpose." Epps v. Commonwealth (1975), 216 Va. 150, 156,
216 S.E.2d 64. See, also, Coleman v. Commonwealth (2001), 261 Va.
196, 200, 539 S.E.2d 732; Nobles v. Commonwealth (1977), 218 Va.
548, 551, 238 S.E.2d 808; Hargrave v. Commonwealth (1974), 214
Va. 436, 437, 201 S.E.2d 597; Thacker v. Commonwealth (1922), 134
Va. 767, 770-772, 114 S.E. 504. Turner cites no Virginia case
holding that a defendant may be convicted of attempted murder
without proof of specific intent to kill.
Id. at ¶¶ 46-47. Quoting this language from the Ohio Supreme Court’s decision, the Magistrate
Judge concluded the Ohio Supreme Court’s decision was not objectively unreasonable (Report, Doc.
No. 135, PageID 3780-3781).
In his Objections, Turner asserts
There is simply no evidence presented in the record here to
demonstrate that critical element [of purposeful attempt to kill
another]. The only evidence in this record demonstrates that the prior
offense did not include an essential element of purposeful killing or
attempt to kill another.
(Objections, Doc. No. 144, PageID 4008).
Unpacking this objection, the Magistrate Judge notes first that Turner complains no
“certified copy of the journal entry” in the Virginia case was introduced (Objections, Doc. No. 144,
PageID 4006). However, the stipulation dispensed with the need for any independent evidence. See
Wigmore, supra.
Second, Turner complains there was no “proof that Virginia’s attempted murder statute
contained the language required to prove the Ohio Revised Code § 2929.04(A)(5) ‘prior offense’
specification.” Id. at PageID 4006-4007. But there is no requirement in § 2929.04(A)(5) that the
required element of purposeful appear on the face of the statute violated. As the Ohio Supreme
Court held, the Virginia Supreme Court has held purpose to kill is an essential element of attempted
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murder in Virginia. State v. Turner, 105 Ohio St. 3d 331, ¶ 47 (2005), citing Virginia Supreme
Court case law back to 1922. Turner’s counsel boldly state “[t]he Supreme Court of Ohio concluded
without citation that “Virginia’s courts have held that an attempted-murder conviction requires
proof of specific intent to kill,” but the citations are right there in ¶ 47.
This third sub-claim is without even arguable merit. The Court should dismiss it and deny
a certificate of appealability.

Ground Nine2

In his ninth ground for relief, Turner asserts he was denied effective assistance of counsel
at penalty phase of his trial court proceedings. The Report separates the sub-claims of this Ground
for analysis.

First and Second Sub-Claims: Failure to Challenge Aggravating Circumstances
These sub-claims were rejected on the merits by the court of appeals on post-conviction and
the Report found that decision was not objectively unreasonable, essentially for the same reasons
given for denial of Ground Seven (Report, Doc. No. 135, PageID 3782-3784).
Having reviewed the Objections on these two sub-claims, the Magistrate Judge again
recommends they be dismissed. However, a certificate of appealability should be issued as to the
claim that the killing of Seggerman was not purposeful but not as to the claim that attempted murder

2

As noted in the Report, Turner has withdrawn his eighth ground for relief. (Report, Doc.
No. 135, PageID 3782, citing Traverse, Doc. No. 32, PageID 1044.)
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in Virginia does not require proof of a purpose to kill.

Third and Sixth Sub-Claims: Failure to Conduct an Adequate Mitigation Investigation
These sub-claims were also rejected on the merits by the state court of appeals on postconviction on the basis that Turner had failed to show prejudice as required by Strickland. The
Magistrate Judge allowed discovery and an evidentiary hearing on this claim and the Report contains
an extensive analysis of that evidence. Because the state courts decided this question on the merits,
Pinholster precludes consideration of that evidence which was not, in any event, very helpful to
Turner’s case.
Turner objects that “[t]he conclusions of the Magistrate [Judge] miss the point of Turner’s
claim.” (Objections, Doc. No. 144, PageID 4025). The Objections then proceed to detail the failure
of Turner’s trial counsel to conduct an adequate investigation. But the conclusion reached by the
state court of appeals which the Magistrate Judge accepted is that all of the investigation which
Turner now insists should have been done would not have yielded evidence which was likely to
change the result, principally because in Ohio alcoholism is at best a weak mitigating factor (Report,
Doc. No. 144, PageID 3799, citing State v. Foust, 105 Ohio St. 3d 137 (2004); State v. Gapen, 104
Ohio St. 3d 358, 387 (2004); State v. Nields, 93 Ohio St. 3d 6, 43 (2001); State v. Wilson, 74 Ohio
St. 3d 381,401 (1996); and State v. Slagle, 65 Ohio St. 3d 597, 614, 605 N.E.2d 916 (1992).
Considering the state court of appeals decision solely under § 2254(d)(1) as interpreted in
Pinholster, the Magistrate Judge continues to conclude that that decision is not objectively
unreasonable. Because failure to investigate mitigating evidence has been the subject of much
recent appellate and Supreme Court jurisprudence and the standards remain fluid, Turner should be

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granted a certificate of appealability on these sub-claims.

Fourth Sub-claim: Failure to Present Skipper Evidence
Turner disclaims any objection to the recommendation that this sub-claim be dismissed
(Objections, Doc. No. 144, PageID 4067.)

Fifth Sub-claim: Failure to Present Evidence of Low Serotonin
Turner disclaims any objection to the recommendation that this sub-claim be dismissed
(Objections, Doc. No. 144, PageID 4067.)

Seventh Sub-claim: Failure to Document Turner’s Extreme Intoxication at the Time of the
Offense.
Turner disclaims any objection to the recommendation that this sub-claim be dismissed,
except for his continued assertion that the documents in question should have been presented to a
drug and alcohol dependence expert as argued in the next sub-claim (Objections, Doc. No. 144,
PageID 4067.)

Eighth Sub-claim: Failure to Employ an Expert in Drug and Alcohol Dependence.
Turner claimed in post-conviction that his counsel should have employed a drug and alcohol
dependence expert with the qualifications of the post-conviction expert, Dr. Robert Smith, who gave
an opinion to the post-conviction trial court that Turner’s “history of substance dependence directly
contributed to the commission of the murders.” State v. Turner, 2006 WL 391820 ¶ 35 (Ohio App.
10th Dist. 2006). The court of appeals held essentially that Dr. Smith’s qualifications were not so
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manifestly greater than the qualifications of Dr. Haskins, the expert who was retained, as to
demonstrate deficient performance or prejudice. The Magistrate Judge concluded that this decision
was neither unreasonable on the facts nor an unreasonable application of federal law and
recommended dismissal of this sub-claim (Report, Doc. No. 135, PageID 3815).
The Objections do not point to any information of record which calls this conclusion into
doubt in the Magistrate Judge’s mind or which requires additional analysis. It is therefore again
respectfully recommended this sub-claim be denied. Because of its close relationship to sub-claims
three and five, however, it is recommended a certificate of appealability be granted on this subclaim.

Ninth Sub-claim: Failure to Investigate and Present Evidence of Turner’s remorse and
Acceptance of Responsibility
Turner disclaims any objection to the Report’s recommendation to dismiss this sub-claim
(Objections, Doc. No. 144, PageID 4073).

Ground Ten

In his tenth ground for relief, Turner contends that, even if the previous nine errors standing
alone do not warrant habeas corpus relief, the cumulative effects of those errors do. The Report
recommended dismissing this ground for relief as barred by the holding in Williams v. Anderson,
460 F.3d 789, 816 (6th Cir. 2006), that this is not a cognizable claim in habeas (Report, Doc. No.
135, PageID 3820).

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Turner objects that, while the Sixth Circuit has not recognized this claim as cognizable,
“other Circuits do,” (Objections, Doc. No. 144, PageID 4076), citing five opinions of the Ninth
Circuit Court of Appeals, but none from any other circuit. This Court is bound by the Sixth Circuit’s
existing precedent and the claim should therefore be dismissed. It is not debatable among
reasonable jurists that existing Sixth Circuit precedent precludes the claim, and this Court should
therefore deny a certificate of appealability on the claim. If the Sixth Circuit wishes to revisit its
position, it has authority to grant a certificate of appealability on the claim after judgment.

Ground Eleven

In his eleventh ground for relief, Turner “contends his death sentence violates the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution for several reasons, as
well as violating “the various treaty and compact obligations of the United States under international
law.” (Petition, Doc. No. 20 PageID 626-629.) The Report concluded this claim should be
dismissed, in part on the merits and in part as procedurally defaulted (Report, Doc. No. 135, PageID
3820-3825).
Turner raises no objections to the proposed disposition of this claim.

Ground Twelve

In his twelfth ground for relief, Turner contends that Ohio’s statutory scheme for providing
appellate and proportionality review in capital cases is constitutionally inadequate (Petition, Doc.

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No. 20, PageID 630-634).
The Report concluded this claim was procedurally defaulted because it had never been
properly presented to the state courts (Report, Doc. No. 135, PageID 3825-3826). Turner had sought
to counter the State’s procedural default defense by noting that he had raised this claim as one of the
improperly omitted propositions of law in his claim of ineffective assistance of appellate counsel.
However, submitting a claim only in that fashion does not preserve it for determination on the merits
in habeas. Wogenstahl v. Mitchell, ___ F.3d ___, 2012 U.S. App. LEXIS 1905 *74-75 (February
2, 2012), citing Lott v. Coyle, 261 F.3d 594, 612 (6th Cir. 2001). “The Lott court explained that
permitting an Ohio prisoner to raise a substantive claim in a Rule 26(B) motion "would eviscerate
the continued vitality of the procedural default rule; every procedural default could be avoided, and
federal court merits review guaranteed, by claims that every act giving rise to every procedural
default was the result of constitutionally ineffective counsel." Id. Turner objects to this conclusion
for reasons argued under his Thirteenth Ground for Relief (Objections, Doc. No. 144, PageID 4079).
Had the claim been preserved for merit review, the Report concluded it would have to be
rejected on the merits on authority of Buell v. Mitchell, 274 F.3d 337, 368-69 (6th Cir. 2001), and
other cited Sixth Circuit authority (Report, Doc. No. 135, PageID 3826). Recognizing that this
Court is bound by the cited precedent, Turner “preserves his objections.” (Objections, Doc. No. 144,
PageID 4080).
Because no persuasive argument to the contrary is presented in the Objections, the
Magistrate Judge again recommends this ground for relief be dismissed as procedurally defaulted
and alternatively on the merits. No certificate of appealability should issue.

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Ground Thirteen

In his thirteenth ground for relief, Turner contends his appellate counsel’s failure to raise six
propositions of law as error on direct appeal before the Ohio Supreme Court constituted ineffective
assistance. (Petition, Doc. No. 20 at PageID 635-64.) The Warden did not rely on the procedural
default found by the Ohio Supreme Court, but instead argued all six propositions of law were
without merit.

Treatment in the Report
As to the first sub-claim that appellate counsel should have raised Turner’s intoxicated
condition at the time of arrest as making his statements involuntary, the Magistrate Judge concluded
this claim would have had little chance of success, essentially because Turner pled guilty (Report,
Doc. No. 135, PageID 3830). As to the second sub-claim that appellate counsel should have raised
the failure to police to stop interrogating Turner when he asked for a lawyer, the Report reached the
same conclusion. Id. at PageID 3833.
The third sub-claim is that appellate counsel were ineffective for failure to plead that trial
counsel were ineffective for failure to insist on a right to withdraw the guilty plea if a death sentence
were imposed. The Report recommends dismissing this sub-claim on the basis that the underlying
claim of ineffective assistance of trial counsel is without merit (Report, Doc. No. 135, PageID
3835).3

3

In making this recommendation, the Report relies in part of testimony given at the
evidentiary hearing held in this matter. Because the state courts did not decide this claim on the
merits, this Court is not precluded by Pinholster from considering this testimony.
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The fourth sub-claim is that appellate counsel were ineffective for failure to raise on appeal
trial counsel’s ineffectiveness for failing to fully inform Turner of the consequences of his guilty
plea. The Report concluded this sub-claim was without merit because the underlying ineffective
assistance of trial counsel claim was without merit. Id.
The fifth, sixth, and seventh sub-claims are that appellate counsel was ineffective for failure
to claim ineffective assistance of trial counsel as to mitigation. The Report concluded the fifth subclaim was without merit because the underlying claim had been presented on direct appeal and the
sixth and seventh sub-claims were without merit because they depended on evidence outside the
record which could not have been presented on direct appeal. Id. at PageID 3836.
The eighth sub-claim is that appellate counsel were ineffective for failure to raise the claims
made in the twelfth ground for relief. This sub-claim was found to be without merit because the
omitted arguments had never been accepted by the Ohio Supreme Court (Report, Doc. No. 135,
PageID 3837-3838). The same is true of the ninth sub-claim on international law and treaty
grounds. Id. at PageID 3838.

Objections
Turner objects to the Report’s conclusions as to all sub-claims.4

Having reviewed the

objections, the Magistrate Judge concludes no additional analysis is needed on this ground for relief.
It should be dismissed on the merits. However, a certificate of appealability should be granted on
all sub-claims except eight and nine.

4

Turner’s counsel captions this portion of the Objections “Failure to ensure that Turner
was fully informed of the consequences of his jury waiver” but then argues it in terms of the
guilty plea. (Objections, Doc. No. 144, PageID 4092.)
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Ground Fourteen

In his fourteenth ground for relief, Turner asserts that Ohio’s post-conviction process is
constitutionally flawed because it does not allow a petitioner adequate discovery or expert and
investigative assistance with which to pursue his constitutional claims (Petition, Doc. No. 20,
PageID 665-68). The Report concluded that this claim was not cognizable in habeas corpus based
on controlling Sixth Circuit precedent (Report, Doc. No. 135, PageID 3939-3940).
Turner objects that the cited Sixth Circuit precedent has been overruled by Pinholster by
implication (Objections, Doc. No. 144, PageID 4109). That is a very broad reading of Pinholster
coming from the Capital Habeas Unit of the Southern District Federal Defender Office, which has
consistently argued for narrow readings of Pinholster, including in this case. The Magistrate Judge
agrees that Pinholster has serious and as-yet-unspecified implications for factual development of
habeas claims for relief, but does not believe Pinholster can appropriately be read as broadly as
counsel argue. It is therefore respectfully recommended that this ground for relief be denied on the
basis the precedent cited in the Report, but that a certificate of appealability be granted.
February 15, 2012.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

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Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ. P.
5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral hearing,
the objecting party shall promptly arrange for the transcription of the record, or such portions of it
as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District
Judge otherwise directs. A party may respond to another party’s objections within fourteen days
after being served with a copy thereof. Failure to make objections in accordance with this procedure
may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v.
Arn, 474 U.S. 140 (1985).

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