Turner v. Warden
SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON ISSUES RAISED BY RECENT SUPREME COURT DECISIONS - Upon reconsideration in light of the Martinez Objections, the Magistrate Judge concludes they do not require modification of the recommendations already made in this case. Objections to R&R due by 1/22/2013. Signed by Magistrate Judge Michael R Merz on 1/3/2013. (kpf1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
MICHAEL R. TURNER,
Case No. 2:07-cv-595
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz
-vsSTUART HUDSON, Warden,
SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON
ISSUES RAISED BY RECENT SUPREME COURT DECISIONS
This capital habeas corpus case is before the Court on Petitioner=s Objections (the
“Martinez Objections,” Doc. No. 192) to the Magistrate Judge’s Report and Recommendations
on Issues Raised by Recent Supreme Court Decisions (the “Martinez Report,” Doc. No. 188).
The Warden has responded to those Objections (Doc. No. 194) and Judge Black has recommitted
the matter to the Magistrate Judge for reconsideration in light of the Objections and Response
(Recommittal Order, Doc. No. 193).
The Supreme Court cases from the 2011 Term which Petitioner argues make a difference
in this case are 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), dealing with, respectively, ineffective
assistance of post-conviction counsel as excusing cause for procedural default of an ineffective
assistance of trial counsel claim and ineffective assistance of trial counsel in plea negotiations.
Martinez v. Ryan
Since Coleman v. Thompson, 501 U.S. 722 (1991), it has been the rule that ineffective
assistance of post-conviction counsel was not excusing cause for failure to present claims in state
post-conviction proceedings. In Martinez v. Ryan, supra, the Supreme Court created a narrow
exception to that rule:
[W]hen a State requires a prisoner to raise an ineffective
assistance-of-trial-counsel claim in a collateral proceeding, a
prisoner may establish cause for a default of an ineffective
assistance 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).
132 S. Ct. at 1318-1319.
To Which Ineffective Assistance of Trial Counsel Claims Does Turner Assert Martinez
The Martinez Report first attempted to determine to which claims of ineffective
assistance of trial counsel Turner was arguing Martinez applied. The Report states “[i]n 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 PostConviction Relief had ten claims for the penalty phase and five for the guilt/innocence phase.”
(Martinez Report, Doc. No. 188, PageID 5445, citing Supplemental Memorandum, Doc. No.
174, PageID 5266). Turner objects “The Magistrate [sic] is incorrect.” (Martinez Objections,
Doc. No. 192, PageID 5491.) However, Turner’s counsel then fail to cite to any place in the
Supplemental Memorandum where they did enumerate the claims of ineffective assistance of
trial counsel to which they think Martinez applies. They noted that post-conviction counsel
made “ten separate claims of the denial of the effective assistance of counsel at the penalty phase
and five claims of the denial of the effective assistance of counsel at the “trial” and earlier
stages,” but they did not say which of those claims they thought were affected by the Martinez
decision (Supplemental Memorandum, Doc. No. 174, PageID 5266-5267).
Turner now says Martinez applies to all fifteen claims of ineffective assistance of trial
counsel made in post-conviction. (Martinez Objections, Doc. No. 192, PageID 5491.) However,
the Amended Petition in this case only includes thirteen claims of ineffective assistance of trial
counsel, not fifteen. (See Grounds for Relief Six and Nine, quoted verbatim in the Martinez
Report at PageID 5444-5445.) Of those thirteen, only ten were raised in postconviction.
The claims of ineffective assistance of trial counsel actually made in post-conviction as
ruled on by the Tenth District and the parallel claims made in the Amended Petition are as
Third and fourth claims for relief – “trial counsel was [sic] ineffective for failing to guarantee
that he could withdraw his jury trial waiver and guilty plea if the three-judge panel imposed the
death penalty” – dismissed as barred by res judicata – State v. Turner, No. 04AP-1143, 2006 WL
391820, ¶ 22 (Ohio App. 10th Dist. Feb. 21, 2006). The parallel claim in the Amended Petition is
Ground Six, Sub-claim 3, “failed to ensure that he could withdraw his guilty pleas should he
receive a death sentence.”
Tenth claim for relief – “trial counsel failed to properly investigate and prepare for the
mitigation phase of his trial” – dismissed on the merit – Id. at ¶¶ 24-25. The parallel claim in the
Amended Petition is Ground Nine, Sub-claim C, “failure to reasonably and competently
investigate, prepare and present available mitigating evidence.”
Fifth claim for relief – failure to introduce “evidence of his good behavior in the Franklin
County Jail” – dismissed on the merits – Id. at ¶ 26. The parallel claim in the Amended Petition
is apparently1 Ground Nine, Sub-claim D, “failure to present Skipper evidence regarding
Turner’s adaptability to prison life.”
Sixth claim for relief – failure to “investigate and present psychological and physiological
mitigation evidence regarding the effects of low serotonin levels” - dismissed on the merits – Id.
at ¶ 27. The parallel claim in the Amended Petition is Ground Nine, Sub-claim E, “failure to
investigate and present psychological and physiological mitigating evidence regarding the effects
of low serotonin.”
Seventh, eighth, ninth, and fourteenth claims for relief – failure to call four mitigation
witnesses – dismissed on the merits – Id. at ¶¶ 29-33. The parallel claim in the Amended
Petition is Ground Nine, Sub-claim F, “failure to present testimony from available lay witnesses
as to Turner’s alcohol abuse and addiction.”
Eleventh claim for relief – failure to “properly place before the panel evidence of appellant’s
alleged intoxication at the time of the murders” – dismissed on the merits – Id. at ¶ 34. The
parallel claim in the Amended Petition is Ground Nine, Sub-claim G, “failure to utilize readily
These claims are only parallel if the Skipper evidence adverted to in the Amended Petition is limited to the Skipper
evidence available from Turner’s time in the Franklin County Jail and not his other periods of incarceration.
available documentary evidence to demonstrate Turner’s extreme intoxication at the time of the
Twelfth claim for relief – use of an unqualified expert witness on substance dependence –
dismissed on the merits – Id. at ¶ 35. The parallel claim in the Amended Petition is Ground
Nine, Sub-claim H, “failure to investigate and utilize an expert in drug and alcohol dependence.”
Thirteenth claim for relief – elicitation of testimony from Dr. Haskins that Turner had a history
of lying and exaggerating – dismissed on the merits – Id. at ¶ 36. There is no parallel claim in
the Amended Petition
Fifteenth and sixteenth claims for relief – failure to file a motion to suppress the statements
Turner made to the police – dismissed on the merits – Id. at ¶¶ 37-39. The parallel claims in the
Amended Petition are Ground Six, Sub-claims one and two, “[t]rial 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.”
Seventeenth claim for relief – failure to ensure that Turner “was fully informed of the
consequences of his decision to waive a jury trial – dismissed on the merits – Id. at ¶ 40. The
parallel claim in the Amended Petition is Ground Six, Sub-claim four, trial counsel “failed to
inform Turner of the consequences of his jury waiver.”
Nineteenth claim for relief – cumulative error2 – dismissed on the merits – Id. at ¶ 41. This
claim has no parallel in Ground Six or Nine and is not apparently not being “counted” by Turner
for purposes of his Supplemental Memorandum and Martinez Objections, since there are fifteen
claims of ineffective assistance of trial counsel made in the post-conviction petition and decided
by the Tenth District without counting this nineteenth claim, which does not mention ineffective
This claim for relief as decided by the Tenth District is not limited to stand alone claims, but includes all the other
eighteen claims. Id. at ¶ 41.
assistance of trial counsel.
In the Amended Petition, Ground for Relief Nine, Sub-claims A (failure to contest the
course of conduct specification), B (failure to contest the prior conviction specification), and I
(failure to investigate and present evidence of Turner’s remorse and acceptance of responsibility)
were not presented to the Tenth District Court of Appeals.
Martinez Applies Only to Excuse Procedural Default in Initial State Court Collateral
Review of Ineffective Assistance of Counsel Claims
Martinez should be extended to Ohio ineffective assistance of trial counsel claims
which are required to be raised in post-conviction.
By its very terms, Martinez is only applicable to excuse a petitioner’s procedural default
in presenting ineffective assistance of trial counsel claims on initial collateral review of a
As noted in the Martinez Report, the Martinez case arose in Arizona which “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.”
(Martinez Report, Doc. No. 188, PageID 5443, quoting Martinez, 132 S. Ct. at 1313.) Ohio is
different, requiring that ineffective assistance of trial counsel claims which can be decided on the
direct appeal record be presented there or be barred by res judicata. Only claims which depend
on evidence dehors the record can (and must) be presented in post-conviction. The distinction is
well established in Ohio law as recognized by the Sixth Circuit in Williams v. Anderson, 460
F.3d 789 (6th Cir. 2006), and by the Tenth District Court of Appeals in this case, State v. Turner,
No. 04AP-1143, 2006 WL 391820 (Ohio App. 10th Dist. Feb. 21, 2006), ¶ 8, citing State v.
Perry, 10 Ohio St. 2d 175 (1967).
While the holding in Martinez is not directly applicable to Ohio, the rationale certainly is:
Ohio requires – mandates – that ineffective assistance of trial counsel claims dependent on
evidence dehors the appellate record be brought in post-conviction. For a petitioner who can
only establish his ineffective assistance of trial counsel claims with evidence dehors the record,
the constitutional guarantee of effective assistance of counsel on direct appeal is of no assistance.
It was avowedly to close this gap between guaranteed effective assistance on direct appeal and
possible complete default of a substantial ineffective assistance of trial counsel claim in postconviction by incompetent counsel that the Court decided in Martinez to create the exception to
Coleman. This Court has previously extended Martinez to apply to Ohio cases, albeit without
approval as yet from the Sixth Circuit. See Landrum v. Anderson, 2012 U.S. Dist. LEXIS
118501 (S.D. Ohio Aug. 22, 2012).
But Martinez does not apply to any of Turner’s ineffective assistance of trial counsel
claims raised in post-conviction.
Martinez, even if extended as suggested here, does not apply to any of ineffective
assistance of trial counsel claims Turner made in post-conviction because none of them were
required to be raised in post-conviction but found barred by a procedural default. As detailed
above and in the Martinez Report, all of those claims were decided on the merits except for the
claim found to be barred by res judicata (Doc. No. 188, PageID 5446-5447).
The procedural default doctrine in habeas is an instantiation of the adequate and
independent state ground of decision rule. “If the state court decision indicates clearly and
expressly that it is alternatively based on bona fide separate, adequate, and independent grounds,
we, of course, will not undertake to review the decision.” Florida v. Powell, 559 U.S.___, 130 S.
Ct. 1195, 1198, 175 L. Ed. 2d 1009 (2009) quoting Michigan v. Long, 463 U.S. 1032 at 1041
(1983). In this case the Tenth District Court of Appeals dismissed all ineffective assistance of
trial counsel claims on the merits except for claims one and two which were held barred by res
judicata. Ohio’s criminal res judicata rule is, of course, a procedural default rule, but it applies
to omissions made on direct appeal, not on post-conviction.3 In other words, the Ohio courts did
not hold any procedural defaults against Turner except one made on direct appeal, to which
Martinez is expressly not applicable. Before there can even be a procedural default which
requires excusing under Wainwright v. Sykes, 433 U.S. 72 (1977), the state rule underlying the
procedural default must have been actually enforced against the petitioner. Maupin v. Smith, 785
F.2d 135, 138 (6th Cir. 1986), citing County Court of Ulster County v. Allen, 442 U.S. 140, 149,
The Martinez Objections argue for seventeen pages (Doc. No. 192, PageID 5501- 5517)
as if Martinez did not require a state court finding of procedural default. Turner details at length
all of the things that post-conviction counsel did not do, either because they did not think to do
them or because they were prevented from doing them by not being granted discovery and an
evidentiary hearing in the state courts. In addition, Turner says he “requires discovery and an
evidentiary hearing [in this Court] to more fully develop post-conviction counsel’s deficient
performance and the limitations placed on the investigation in the state courts.” Id. at PageID
Turner’s counsel’s apparent logic is if the state courts do not give you a procedural
default you can invoke to apply Martinez, the federal courts can independently find a procedural
The Perry res judicata rule has been repeatedly upheld in the Sixth Circuit as an adequate and
independent state rule. Mason v. Mitchell, 320 F.3d 604, 628 (6th Cir. 2003); Coleman v.
Mitchell, 268 F.3d 417, 429 (6th Cir. 2001); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Byrd
v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000), cert. denied, 531 U.S. 1082, 121 S.Ct. 786, 148
L.Ed.2d 682 (2001); Rust v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994); Van Hook v. Anderson,
127 F. Supp. 2d 899 (S.D. Ohio 2001).
default. The Court doubts the same counsel would agree with this Court’s raising a procedural
default sua sponte when it is the Warden who would benefit.
As an alternative argument, Turner insists the state courts did not decide these claims on
the merits because Turner defaulted in presenting the factual basis of these claims to the state
courts and therefore “the state courts ruled on a different claim.” (Martinez Objections, Doc. No.
192, PageID 5514.) But if these are different claims than those presented and they are supported
by newly-discovered or newly-to-be-discovered evidence, they are not exhausted in the state
Martinez does not create an independent constitutional right to effective assistance of
post-conviction counsel, but only the possibility of using ineffective assistance of such counsel to
excuse a procedural default held against a petitioner by the state courts. There are no such
procedural defaults in this case and Martinez is therefore inapplicable.
Missouri v. Frye and Lafler v. Cooper
In Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399, 182 L.Ed. 2d 379 (2012), counsel was
found ineffective for failure to communicate a written plea and sentence offer to the defendant.
In Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), counsel was found
ineffective for recommending that his client reject a plea offer and stand trial instead. The
Martinez Report notes that these cases break no new ground for Turner since there never was a
plea offer from the prosecutors which was either uncommunicated or turned down as the result
of bad advice (Martinez Report, Doc. No. 188, PageID 5449).
The Martinez Objections do not claim there was any plea offer. Instead, Turner re-argues
how bad the advice was that he actually received. This portion of the Martinez Objections does
not require any analysis beyond that already given.
Upon reconsideration in light of the Martinez Objections, the Magistrate Judge concludes
they do not require modification of the recommendations already made in this case.
January 3, 2013.
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(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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