Turner v. Warden

Filing 188

REPORT AND RECOMMENDATIONS ON ISSUES RAISED BY RECENT SUPREME COURT DECISIONS - Having reconsidered the Report and Recommendations and Supplemental Report and Recommendations in light of Turner's Supplemental Memorandum, the Magistrate Judge finds no occasion to modify the analysis or conclusions in those Reports. Objections to R&R due by 11/5/2012. Signed by Magistrate Judge Michael R Merz on 10/18/2012. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MICHAEL R. TURNER,
:
Petitioner,

Case No. 2:07-cv-595
:

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vsSTUART HUDSON, Warden,
:
Respondent.

REPORT AND RECOMMENDATIONS ON ISSUES RAISED BY
RECENT SUPREME COURT DECISIONS
Status of the Case
This is a capital habeas corpus case. The pleadings were complete on February 8, 2008,
when Turner’s Reply (Doc. No. 32) was filed. An evidentiary hearing was held in February,
2010 (See Minute Entry, Doc. No. 123). The case became ripe for decision after briefing was
completed August 24, 2010 (See Doc. No. 131). The Report and Recommendations on the
merits was filed April 22, 2011 (Doc. No. 135). When extending the time for objections, I
ordered the parties to brief, pre-judgment, the question whether a certificate of appealability
should issue (Doc. No. 138). Turner objected, but Judge Barrett overruled those objections
(Doc. No.46). I filed a Supplemental Report on the merits and a Report on the certificate of
appealability issue on February 15, 2012 (Doc. No. 152). The case was transferred to Judge
Black on March 9, 2012 (Doc. No. 156).
The day before the transfer, Petitioner moved (Doc. No. 155) to amend to add claims
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relating to Ohio’s lethal injection protocol which parallel amendments made to many pending
Southern District capital habeas cases. I granted that Motion on May 3, 2012 (Doc. No. 165).
The Warden has objected to that Order (Doc. No. 167). After recommital, I filed a Supplemental
Opinion (Doc. No. 175). The question of whether the amendment should be allowed is now ripe
for District Court consideration on further Objections by the Warden (Doc. No. 183) and
Response by Turner (Doc. No. 185).
Turner sought and received permission to file a supplemental memorandum in support of
his Objections to address the applicability of Martinez v. Ryan, 132 S. Ct. 1309 (2012), Missouri
v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012). Turner’s
Supplemental Memorandum was filed July 2, 2012 (Doc. No. 174), the Warden responded on
July 20, 2012 (Doc. No. 179), and Turner filed a Reply July 27, 2012 (Doc. No. 181). The case
was recommitted October 12, 2012, for consideration of these supplemental memoranda (Doc.
No. 187).

Analysis

Ineffective Assistance of Post-Conviction Counsel:
The Decision in Martinez v. Ryan

The first branch of Turner’s Supplemental Memorandum relies on Martinez v. Ryan,
supra. In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court had held that an
attorney’s ignorance or inadvertence in a postconviction proceeding did not qualify as cause to

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excuse a procedural default. Coleman remained the law for twenty years and the District Court
in Martinez and the Ninth Circuit on appeal in that case applied Coleman to bar consideration of
an ineffective assistance of trial counsel claim which had been procedurally defaulted by failure
to raise the claim by the first attorney who could have raised it. The Supreme Court reversed,
holding:
To protect prisoners with a potentially legitimate claim of
ineffective assistance of trial counsel, it is necessary to modify the
unqualified statement in Coleman that an attorney's ignorance or
inadvertence in a postconviction proceeding does not qualify as
cause to excuse a procedural default. This opinion qualifies
Coleman by recognizing a narrow exception: Inadequate assistance
of counsel at initial-review collateral proceedings may establish
cause for a prisoner's procedural default of a claim of ineffective
assistance at trial.

132 S. Ct. at 1315. The Court noted that Arizona “does not permit a convicted person alleging
ineffective assistance of trial counsel to raise that claim on direct review. Instead, the prisoner
must bring the claim in state collateral proceedings.” Id. at 1313. As the Court noted, citing
Massaro v. United States, 538 U.S. 500 (2003), Arizona parallels the federal system in this
regard: federal court claims of ineffective assistance of trial counsel cannot be raised on direct
appeal even if they depend on the record; they must be raised by motion to vacate under 28 U.
S.C. § 2255. Because a collateral petition was the only proceeding in which an ineffective
assistance of trial counsel claim could be raised in Arizona, the Supreme Court thought it should
be made more like the situation where a claim of ineffective assistance of trial counsel can be
raised on direct appeal, where a defendant is constitutionally guaranteed the effective assistance
of counsel so that a defective representation on direct appeal can provide excusing cause. See
discussion, Martinez, 132 S. Ct. at 1317.
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The precise holding in Martinez is
[W]hen a State requires a prisoner to raise an ineffectiveassistance-of-trial-counsel claim in a collateral proceeding, a
prisoner may establish cause for a default of an ineffectiveassistance claim in two circumstances. The first is where the state
courts did not appoint counsel in the initial-review collateral
proceeding for a claim of ineffective assistance at trial. The second
is where appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v. Washington, 466 U.
S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome the
default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim
has some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003) (describing standards for
certificates of appealability to issue).

Id. at 1318-1319. The Court emphasized the narrowness of the new rule. “Coleman held that an
attorney's negligence in a postconviction proceeding does not establish cause, and this remains
true except as to initial-review collateral proceedings for claims of ineffective assistance of
counsel at trial.” Id. at 1319. “The rule of Coleman governs in all but the limited circumstances
recognized here.” Id. at 1320.

Application of Martinez to this Case

In his Petition for Writ of Habeas Corpus, Michael Turner raised the following claims of
ineffective assistance of trial counsel:
Ground Six: Michael Turner was denied the effective assistance
of counsel in the innocence‐guilt determination phase of his capital
trial in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution.
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Sub-claims: Trial counsel (1) failed to move to suppress his
statements to police; (2) failed to move to suppress his statements
because the interrogating officers ignored his request for counsel;
(3) failed to ensure that he could withdraw his guilty pleas should
he receive a death sentence; and (4) failed to inform Turner of the
consequences of his jury waiver.
Ground Nine: Michael Turner was denied the effective assistance
of counsel in the penalty phase of his capital trial in violation of
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United
States Constitution.
Sub-claims: (A) failure to contest the course of conduct
specification, (B) failure to contest the prior conviction
specification, (C) failure to reasonably and competently
investigate, prepare and present available mitigating evidence, (D)
failure to present Skipper evidence regarding Turner’s adaptability
to prison life, (E) failure to investigate and present psychological
and physiological mitigating evidence regarding the effects of low
serotonin, (F) failure to present testimony from available lay
witnesses as to Turner’s alcohol abuse and addiction, (G) failure to
utilize readily available documentary evidence to demonstrate
Turner’s extreme intoxication at the time of the offense, (H) failure
to investigate and utilize an expert in drug and alcohol dependence,
and (I) failure to investigate and present evidence of Turner’s
remorse and acceptance of responsibility.
(Amended Petition, Doc. No. 20, PageID 496-499.)
In his Supplemental Memorandum, Turner never enumerates to which claims of
ineffective assistance of trial counsel he believes Martinez applies, merely mentioning that the
Petition for Post-Conviction Relief had ten claims for the penalty phase and five for the
guilt/innocence phase (Supplemental Memorandum, Doc. No. 174, PageID 5266). However,
Martinez only applies to excuse a procedural default of an ineffective assistance of trial counsel
claim. It has no applicability to claims on which the habeas court reaches the merits.

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The Report and Recommendations recommends finding that the Sixth Ground for Relief
is without merit and should be dismissed on that basis (Doc. No. 135, PageID 3767, 3770, 3776.)
Nothing in Martinez impacts the analysis of the Sixth Ground for Relief.
On the Ninth Ground for Relief, the Report recommends as follows:
1. Deny the first and second sub-claims (failure to challenge aggravating circumstances) on
the merits (Doc. No. 135, PageID 3783).
2. Deny the first and sixth sub-claims (failure to conduct an adequate mitigation
investigation) on the merits. Id. at PageID 3800.
3. Deny the fourth sub-claim (failure to present evidence of Turner’s adaptability to prison)
on the merits. Id. at PageID 3803.
4. Deny the fifth sub-claim (failure to present evidence of low serotonin) on the merits. Id.
at PageID 3804.
5. Deny his seventh sub-claim (failure to document Turner’s extreme intoxication) on the
merits. Id. at PageID 3811.
6. Deny his eighth sub-claim (failure to obtain a drug/alcohol dependence expert) on the
merits. Id. at PageID 3815.
7. Deny his ninth sub-claim (failure to present evidence of remorse) as barred by Ohio’s
criminal doctrine of res judicata and also as without merit. Id. at PageID 3818-3819.
Thus the Magistrate Judge found only one of the fifteen claims of ineffective assistance of trial
counsel to be procedurally defaulted.

On that sub-claim, the Magistrate Judge offered an

alternative merits analysis; on all of the other sub-claims, only a merits analysis was given.
Martinez is inapplicable to the fourteen sub-claims on which the Court reached the merits. The
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Supreme Court did not in Martinez create a right to effective assistance of post-conviction
counsel. Rather, it only provided that such ineffectiveness can be proven as excusing cause for a
procedural default. But only one sub-claim was found to be procedurally defaulted; all the rest
were found to be without merit.
As to the sub-claim where a procedural default was found, Martinez is also inapplicable.
Martinez only applies to claims of ineffective assistance of trial counsel which must, under state
law, be raised on collateral review. In Arizona, as in the federal system, that is all claims of
ineffective assistance of trial counsel.

Ohio is different, providing that those claims of

ineffective assistance of trial counsel which can be raised on direct appeal must be raised on
direct appeal or be barred by res judicata. In Williams v. Anderson, 460 F.3d 789, 799 (6th Cir.
2006), the Sixth Circuit described Ohio law generally on the subject:
Ohio law requires criminal defendants to bring ineffective
assistance of counsel claims on direct review if the defendant has
new counsel on appeal, and the trial court record contains
sufficient evidence to support the claim. State v. Cole, 2 Ohio St.
3d 112, 443 N.E.2d 169, 171 (1982). Where the trial court record
does not contain sufficient evidence to support the claim, however,
the defendant must instead bring the claim in post-conviction
proceedings. See State v. Cooperrider, 4 Ohio St. 3d 226, 4 Ohio
B. 580, 448 N.E.2d 452, 454 (Ohio 1983). Unlike on direct review,
in post-conviction proceedings a petitioner may introduce evidence
outside the trial court record to support the claim. See id. If a
defendant chooses to bring an ineffective assistance of counsel
claim on direct review, however, Ohio's "res judicata" rule
precludes the defendant from re-raising the claim in postconviction proceedings. Id.
In the instant case, Petitioner chose to bring his ineffective
assistance of counsel claim on direct review, thereby foregoing the
opportunity to present evidence outside the trial court record to
support his claim. Ohio has finality and judicial economy interests
in enforcing its prohibition on re-litigation of ineffective assistance
of counsel claims in post-conviction proceedings. State v. Saxon,
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846 N.E.2d 824, 109 Ohio St. 3d 176, 2006 WL 759668, at *5
(2006). Thus, normally, we would respect the Ohio court's decision
to enforce "res judicata" and decline to consider a petitioner's
evidence where the petitioner chose to raise his or her ineffective
assistance of counsel claim on direct review. Cf. Coleman v.
Thompson, 501 U.S. 722, 730-31, 111 S. Ct. 2546, 115 L. Ed. 2d
640 (1991) (stating that procedurally defaulted claims are not
reviewed for comity and federalism reasons).

460 F.3d at 799. For reasons discussed in the Report at PageID 3817, the state court of appeals
did not misapply Ohio res judicata doctrine in holding that this sub-claim could have been raised
on direct appeal and was procedurally defaulted because it had not been thus presented. By its
terms, Martinez is not applicable to situations where an ineffective assistance of trial counsel
claim can be raised on direct appeal.
In sum, Martinez does not provide a basis for any relief in this case.

Ineffective Assistance in Plea Negotiations:
Missouri v. Frye and Lafler v. Cooper

This last term, the Supreme Court held there is a constitutional right to the effective
assistance of counsel in the plea bargain process which includes the duty of an attorney to
communicate an offered plea bargain. Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399, 182 L.
Ed. 2d 379 (2012); Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012).
In Frye counsel was found ineffective for failure to communicate a written plea and sentence
offer to the defendant. In Lafler, decided the same day, counsel was found ineffective for
recommending that his client reject a plea offer and stand trial instead. The Court noted that it

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had held in Montejo v. Louisiana, 556 U.S. 778 (2009) that the right to effective assistance of
counsel applies to all critical stages of criminal proceedings and in Padilla v. Kentucky, 559 U.S.
___, 130 S. Ct. 1473 (2010), that negotiation of a plea bargain is a critical stage of the
proceedings.
As far as this case goes, however, neither case breaks new ground. There never was a
plea offer and there never was going to be one. Petitioner quotes the testimony of the prosecutor
from the evidentiary hearing held in this case:
Well, this was a case that wasn't going to be pled to anything short
of death. And we made it clear to Tully and Blaise from the get-go
that that's what we were going for. We were going for death. We
weren't going for life without parole. There was no chance at any
time, unless the case completely fell apart, there was no chance at
any time that this was going to be anything less than what I
perceived as a trial for the death penalty.

(Quoted at Doc. No. 174, PageID 5286.)
As opposed to plea negotiation, the Report already accepts the broader proposition for
which Turner cites these cases, to wit, that a criminal defendant is entitled to effective assistance
in the preparation for trial generally. (See Report, Doc. No. 135, PageID 3761, 3782). Both the
state courts and the Magistrate Judge treated Turner’s claims of ineffective assistance of trial
counsel as raising cognizable federal constitutional claims and decided them on the merits.
Nothing decided by the Supreme Court in Lafler or Frye persuades the Magistrate Judge that a
different result is called for or even any different analysis.

Conclusion

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Having reconsidered the Report and Recommendations and Supplemental Report and
Recommendations in light of Turner’s Supplemental Memorandum, the Magistrate Judge finds
no occasion to modify the analysis or conclusions in those Reports.
October 18, 2012.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
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(e), this period is automatically
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)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. 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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