Hand v. Houk

Filing 144

REPORT AND RECOMMENDATIONS ON MOTION FOR CERTIFICATE OF APPEALABILITY - It is respectfully recommended that Petitioner be granted a certificate of appealability on the fair presentation issue in Ground Two; on sub-claim two of Ground Four; on sub-cl aims 2, 6, and 7 of Ground Five; on Grounds Six and Eight; and on the merits only of subclaim 2 of Ground Nine. All other requests for a certificate of appealability should be denied. Objections to R&R due by 1/21/2014. Signed by Magistrate Judge Michael R Merz on 1/3/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS

GERALD HAND,

:
Case No. 2:07-cv-846
Petitioner,

-vs-

:
:

District Judge Sandra A. Beckwith
Magistrate Judge Michael R. Merz

:
MARC HOUK, Warden,
:
Respondent.

:

REPORT AND RECOMMENDATIONS ON MOTION FOR
CERTIFICATE OF APPEALABILITY

This capital habeas corpus case is before the Court on Petitioner’s Motion for Certificate
of Appealability (Doc. No. 142) which the Warden opposes (Doc. No. 143). Petitioner’s time to
file a reply in support expired December 23, 2013, and the Motion is therefore ripe for decision.
District Judge Sandra S. Beckwith, to whom this case is assigned, entered an Order on
May 29, 2013, dismissing Petitioner Hand’s Petition for Writ of Habeas Corpus including all
claims made in the Petition (Doc. No. 118).1 On November 18, 2013, Judge Beckwith denied
Hand’s Motion to Alter the Judgment (Order, Doc. No. 141). Thus the case is ripe for appeal
after decision of the instant motion.

1

Judge Beckwith’s decision is publicly reported at 2013 U.S. Dist. LEXIS 75378 and 2013 WL 2372180, but is
cited hereinafter to the place where it appears on the docket of this Court.

1

Standard for Certificate of Appealability

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. 28 U.S.C. '2253 as amended by the Antiterrorism and Effective Death Penalty Act
of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), provides in pertinent part:
(c)
(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals
from-(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court;
or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if
the applicant has made a substantial showing of the denial of a
constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate
which specific issue or issues satisfy the showing required by
paragraph (2).
District courts have the power to issue certificates of appealability under the AEDPA in '2254
cases. Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063 (6th Cir. 1997); Hunter v. United
States, 101 F.3d 1565 (11th Cir. 1996)(en banc). Likewise, district courts are to be the initial
decisionmakers on certificates of appealability under '2255. 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). Issuance of blanket grants or denials of certificates of appealability is error, particularly if
done before the petitioner requests a certificate. Porterfield v. Bell, 258 F.3d 484(6th Cir. 2001);
Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001).
2

To obtain a certificate of appealability, a petitioner must show at least that Ajurists 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-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 at 484, 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.
3

Obviously 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.'

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). Because the decisions of a district court may be debatable among reasonable jurists as to
some issues but not as to others, a court should consider appealability on an issue-by-issue basis.
See 28 U.S.C. § 2253(c)(3).
Both parties recite the relevant standard in terms not inconsistent with what is set out
here. Hand cites authority from other circuits that the severity of the penalty may be considered
in resolving any doubt on whether to issue a certificate. (Motion, Doc. No. 142, PageID 15715,
citing Miller v. Johnson, 200 F.3d 274, 280 (5th Cir. 2000), and Petrocelli v. Angelone, 248 F.3d
877, 884 (9th Cir. 2001).) This Court agrees that consideration is appropriate in capital cases.

Analysis

The Petition contains fifteen grounds for relief. Hand seeks a certificate of appealability
on Grounds One, Two, Four, Five, Six, Eight, Nine, and Eleven (Motion, Doc. No. 142, PageID
15713). The Warden opposes a certificate on each of these Grounds (Opposition, Doc. No. 143,
PageID 15796-97). Thus the Grounds for Relief will be considered seriatim.
4

Ground One: Denial of Confrontation Clause and Due Process Rights

The murdered victims in this case were Jill Hand, Petitioner’s fourth wife, and Lonnie
Welch. In his First Ground for Relief, Hand asserts his due process and Confrontation Clause
rights were violated when the trial court admitted testimony from eight different witnesses about
statements Welch had made to them before he himself was killed by Hand.
In denying habeas relief on this claim, Judge Beckwith adopted the Magistrate Judge’s
analysis that admission of this testimony did not violate the Confrontation Clause because
Welch’s statements were not testimonial or, alternatively, that Hand had forfeited his right to
confront Welsh by killing him (Order, Doc. No. 118, PageID 2824-28). Although Hand claims
reasonable jurists could disagree with these two conclusions, he has cited no case in which any
judge has found statements such as those admitted in this case to have been testimonial. In fact,
under the Due Process prong of this claim, Hand argues the testimony about Welch’s statements
is unreliable because made by Hand’s friends and relatives. That logic completely undercuts
Hand’s assertion that Welch’s statements were testimonial. Welch was not trying to get Hand
convicted, he was boasting to friends and relatives how he made money helping Hand kill his
wives for the insurance.
Most of Hand’s argument on the First Ground is directed to the asserted Due Process
violation in admitting supposedly unreliable testimony. On that claim, Judge Beckwith noted
that the Supreme Court of Ohio “rejected the substance of Hand’s due process challenge when it
thoroughly reviewed the reliability of the challenged testimony and the veracity of the witnesses,
in affirming the trial court’s admission of the testimony. That decision is not contrary to clearly

5

established federal law.” Id. at PageID 2830.
To show this conclusion is debatable among reasonable jurists, Hand cites Ege v. Yukins,
485 F.3d 364 (6th Cir. 2007); Manson v. Brathwaite, 432 U.S. 98 (1977); and United States v.
Hamad, 495 F.3d 241 (6th Cir. 2007) (Motion, Doc. No. 142, PageID 15716-19). These cases
are completely inapposite.
In Ege, the only testimony that purported to identify Ege as the murderer was the opinion
of a bite mark expert that the Ege was the only person among 3.5 million people in the greater
Detroit area who could have made the bite mark found on the victim. The district court had
found the statistical portion of the testimony “carried an aura of mathematical precision pointing
overwhelmingly to the statistical probability of guilt, when the evidence deserved no such
credence.” Quoted at 485 F.3d 376.
In Manson, the Supreme Court did indeed confirm the inadmissibility under the Due
Process Clause of unreliable identification testimony and listed factors to be considered in
determining reliability.

However, it reversed the grant of the writ, finding no substantial

likelihood of irreparable misidentification in that case. In Hamad, the Sixth Circuit ruled on
direct appeal that Fed. R. Crim. P. 322 prohibited a district judge’s reliance on undisclosed ex
parte evidence in increasing a sentence.
None of these cases involve the reliability of witness testimony about out-of-court
statements by a deceased co-conspirator who has become a victim. Most of them were friends or
relatives of Lonnie Welch and Hand emphasizes their motive to punish him for Welch’s murder
(Motion, Doc. No. 142, PageID 15722.) But Hand has not presented a single case in which a
judge has found that a witness’s motive to lie was so great as to make his or her testimony

2

The court avoided a due process ruling by construing Fed. R. Crim. P. 32 to avoid constitutional doubt. 495 F.3d
at 247-48.

6

unconstitutionally unreliable.
There is no doubt this testimony was very damaging to Hand because it tended to prove
the existence of a long-term conspiracy between Hand and Welch to murder not just Hand’s
current wife, Jill, but two of his prior wives. But the fact that evidence is very strong does not
make it “prejudicial.”
Hand’s Motion for a certificate of appealability on Ground One should be denied.

Ground Two: Character and Other Acts Evidence

In his Second Ground for Relief, Hand asserts that admission of character and other acts
evidence deprived him of due process, a fair trial, and a reliable determination of his guilt and
sentence.

The instances complained of were (1) Hand’s repeated tax cheating (failing to

withhold on employees’ wages, failing to file a personal return), (2) Hand’s reported lack of grief
in reaction to news of the deaths Donna, Lori, and Jill Hand, (3) Hand’s lack of sexual
satisfaction in his marriage to Lori, (4) Hand’s interest in “true crime” stories, and (5) Hand’s
harsh treatment of his father.
In dismissing this Ground for Relief, Judge Beckwith accepted the Magistrate Judge’s
conclusion that Hand failed to fairly present this claim as a constitutional claim to the Supreme
Court of Ohio (Order, Doc. No. 118, PageID 2834-37). The question whether an issue has been
fairly presented as a constitutional claim to the state courts is often a close one in the case law.
(Note the competing precedent cited by Judge Beckwith.)

While the Magistrate Judge is

persuaded this Court has correctly decided this question, he agrees that reasonable jurists could
find it debatable. Hand should be granted a certificate of appealability on the fair presentation

7

issue.
In the alternative, assuming fair presentation arguendo, Judge Beckwith found Hand had
failed to show a deprivation of due process or that Hand had procedurally defaulted on all but
one of these claims by failure to object. Id. at 2837-40.
In his Motion for Certificate of Appealability, Hand argues that much of this bad
character evidence was found to be of questionable relevance by the Ohio Supreme Court. Judge
Beckwith found that, when considered in the context of a trial with seventy-five witnesses, “the
five incidents Hand cites, when considered within the totality of the evidence presented at
Hand’s trial, are not the sort of damaging and prejudicial testimony that was involved in Mackey
[v. Russell, 148 Fed. Appx. 355 (6th Cir. 2005)].” (Order, Doc. No. 118, PageID 2838.)
Hand can obtain relief on this claim only if he can show admission of this testimony
violated clearly established Supreme Court precedent. The Sixth Circuit has held “[t]here is no
clearly established Supreme Court precedent which holds that a state violates due process by
permitting propensity evidence in the form of other bad acts evidence.” Bugh v. Mitchell, 329
F.3d 496, 512 (6th Cir. 2003), noting that the Supreme Court refused to reach the issue in Estelle
v. McGuire. 502 U.S. 62 (1991). Nowhere in the instant Motion does Hand cite any law to the
contrary.
Nor does Hand cite any law to show Judge Beckwith’s procedural default holding would
be debatable among reasonable jurists. On all the complained-of instances but one, the Supreme
Court of Ohio found lack of a contemporaneous objection and conducted plain error review. The
Sixth Circuit has repeatedly upheld Ohio’s contemporaneous objection requirement as an
adequate and independent state ground of decision. See, e.g., Hinkle v. Randle, 271 F.3d 239,
244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456

8

U.S. 107, 124-29 (1982). It has also held a state appellate court’s review for plain error is
enforcement, not waiver, of a procedural default. Wogenstahl v. Mitchell, 668 F.3d 307, 337 (6th
Cir. 2012); Jells v. Mitchell, 538 F.3d 478, 511 (6th Cir. 2008); Lundgren v. Mitchell, 440 F.3d
754, 765 (6th Cir. 2006); White v. Mitchell, 431 F.3d 517, 525 (6th Cir. 2005); Biros v. Bagley,
422 F.3d 379, 387 (6th Cir. 2005).
It is therefore recommended that Hand be granted a certificate of appealability on his fair
presentation claim, but denied a certificate on the merits of his Second Ground for Relief and on
the Court’s finding of procedural default.

Ground Four: Ineffective Assistance of Trial Counsel in the Guilt Phase

In his Fourth Ground for Relief, Hand claims he was denied the effective assistance of
trial counsel during the guilt phase of his trial in eleven particular ways, each treated by Judge
Beckwith as a sub-claim. Hand seeks a certificate of appealability on each of these sub-claims,
although he does not separately argue the cumulative ineffectiveness eleventh sub-claim. The
sub-claims will be treated here seriatim.

Sub-claim One: Failure to Object to Testimony from Hand’s Bankruptcy Attorney that
was Protected by Attorney-Client Privilege

In the first sub-claim, Hand asserts his trial attorney was ineffective for failing to object
to testimony by his bankruptcy attorney that was protected by the attorney-client communication
privilege.
Judge Beckwith found this sub-claim was procedurally defaulted under Ohio’s criminal

9

res judicata rule because it depended on evidence of record on direct appeal and therefore had to
be raised in that proceeding, but was not in fact raised until Hand moved for the second time to
reopen the direct appeal (Order, Doc. No. 118, PageID 2843-44). She also found the res judicata
rule was an adequate and independent state ground of decision. Id.
Hand acknowledges that this was a claim that could have been raised on direct appeal but
was not. He then asserts it was ineffective assistance of appellate counsel not to raise the claim
on direct appeal. Ineffective assistance of appellate counsel can act as cause to excuse a
procedural default at the appellate level, but only if that claim itself is not procedurally defaulted.
Edwards v. Carpenter, 529 U.S. 446 (2000).
Hand was represented on direct appeal by Assistant Ohio Public Defenders Stephen
Ferrell, Pamela Prude-Smithers, and Wendi Dotson (See Doc. No. 133, PageID 5182). Counsel
who filed his petition for post-conviction relief under Ohio Revised Code § 2953.21 was
Assistant Ohio Public Defender Susan Roche. She was joined in filing the first application for
reopening in the Ohio Supreme Court on April 28, 2006, by Assistant Ohio Public Defender
Veronica Bennu. Together they pled three claims of ineffective assistance of appellate counsel
on direct appeal against their colleagues Ferrell, Prude-Smithers, and Dotson. (App. Vol. 9 at
28-39.) However they omitted the ineffective assistance of appellate counsel claim at issue here;
it was never raised in the Ohio courts until pled in the second application for reopening filed by
current counsel on September 24, 2007, after Hand had filed his Petition for Writ of Habeas
Corpus in this Court.
The Supreme Court of Ohio summarily denied both of Hand’s applications for reopening.
State v. Hand, 110 Ohio St. 3d 1435 (table)(2006)(2006 application); State v. Hand, 116 Ohio St.
3d 1435 (table)(2007)(2007 application). Ohio S.Ct.Prac.R. XI(6) only permits one application

10

for reopening. Jones v. Bradshaw, 489 F.Supp.2d 786, 795 (N.D. Ohio 2007), citing State v.
Jones, 108 Ohio St. 3d 1409 (2006)(table); Issa v. Bradshaw, No. 1:03-cv-280, 2007 WL
7562139 at *12-13 (S.D. Ohio Dec. 20, 2007) and Issa v. Bradshaw, No. 1:03-cv-280, 2008 WL
8582098 at *49 (S.D. Ohio Nov. 5, 2008), both citing State v. Issa, 106 Ohio St. 3d 1407
(2005)(table). Furthermore, under the same Rule, any such application must be filed within
ninety days of issuance of the mandate by the Supreme Court of Ohio. In Hand’s case, that
mandate was issued January 18, 2006 (Judgment Entry, Doc. No. 133-9, PageID 6184). Thus
the first application for reopening was timely, but the second application, raising the claim at
issue here, was not. Thus Hand committed two procedural defaults in presenting this claim to
the Ohio courts, missing the time deadline and presenting the claim in a second application.
Where a state court is entirely silent as to its reasons for denying requested relief, as
when the Ohio Supreme Court denies leave to file a delayed appeal by form entry, the federal
courts assume that the state court would have enforced any applicable procedural bar. Bonilla v.
Hurley, 370 F.3d 494, 497 (6th Cir. 2004), citing Simpson v. Sparkman, 94 F.3d 199, 203 (6th Cir.
1996).
Hand claims he comes within an exception to the res judicata rule based on the identity
of the lawyers involved: “Hand could not exhaust the [claim of] the ineffectiveness of his
appellate counsel because his post-conviction counsel were members of the same law office, and
attorneys are not expected to raise their own ineffectiveness nor that of their colleagues.”
(Motion, Doc. No. 142, PageID 15731-32, citing State v. Cole, 2 Ohio St. 3d 112, 113 n. 1
(1982); Combs v. Coyle, 205 F.3d 269, 276 (6th Cir. 2000); Jamison v. Collins, 100 F. Supp. 2d
521, 572 (S.D. Ohio 1998); and State v. Lentz, 70 Ohio St. 3d 527 (1994)).
The source of the criminal res judicata doctrine in Ohio is State v. Perry, 10 Ohio St. 2d

11

175 (1967):

7. Constitutional issues cannot be considered in postconviction
proceedings under Section 2953.21 et seq., Revised Code, where
they have already been or could have been fully litigated by the
prisoner while represented by counsel, either before his judgment
of conviction or on direct appeal from that judgment, and thus have
been adjudicated against him. ...
9. Under the doctrine of res judicata, a final judgment of
conviction bars a convicted defendant who was represented by
counsel from raising and litigating in any proceeding except an
appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant
at the trial, which resulted in that judgment of conviction or on an
appeal from that judgment.
Perry, 10 Ohio St. 2d at 176 (syllabus)(emphasis sic). However, Ohio law has recognized for at
least forty years that a lawyer cannot be expected to raise his own ineffectiveness. State v.
Carter, 36 Ohio Misc. 170 (Mont. Cty CP 1973)(Rice, J.). The Supreme Court of Ohio then
recognized an exception to Perry: “Where a defendant, represented by new counsel on direct
appeal, fails to raise therein the issue of competent trial counsel and said issue could fairly have
been determined without resort to evidence dehors the record, res judicata is a proper basis for
dismissing defendant’s petition for post-conviction relief.” State v. Cole, 2 Ohio St. 3d 112
(1982)(syllabus, modifying State v. Hester, 45 Ohio St. 2d 71 (1976). In State v. Lentz, 70 Ohio
St. 3d 527 (1994), the court found that the res judicata exception recognized in Cole was “highly
personal,” and thus would only apply when the same person was counsel at trial and on appeal.
Lentz applied res judicata where two different attorneys from the same public defender’s office
represented the defendant at trial and on appeal. Lentz left open the possibility of an exception if
an actual conflict of interest were shown.
In Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000), a capital habeas corpus case from this

12

Court, the Sixth Circuit recognized the temporal dimensions of Ohio’s criminal res judicata rule.
The State had argued that res judicata applied where Combs was represented on direct appeal by
one of his trial attorneys and one new attorney. The state appellate court accepted that defense
on the basis of Ohio v. Zuern, 1991 Ohio App. LEXIS 5733 (1st Dist. 1991), which held:
Unless we presume . . . that new co-counsel entering upon a
criminal case at the appellate level would deliberately not exercise
his professional judgment or duty to assert the ineffectiveness of
his co-counsel at trial if the record demonstrated a basis for such a
claim, a presumption we adamantly reject, we perceive no reason
why the reference in Cole to 'new counsel' would not embrace new
co-counsel as well as new independent counsel.
Id. at * 12. The Sixth Circuit went on to note that, while the Zuern decision had been repeatedly
followed by Ohio courts since it was handed down, “Zuern was not decided until after the court
of appeals had ruled on Combs’ direct appeal.” In a footnote, the Sixth Circuit questioned
whether Zuern was firmly established even as of 2000:
Even today, it is not clear that the Zuern rule would qualify as a
firmly established state procedural rule. The Ohio Supreme Court
has never spoken on the issue, and not all the courts of appeals
agree with the outcome in Zuern. Furthermore, the reasoning in
Zuern seems to be in tension with that of the Supreme Court of
Ohio in Lentz. Lentz can be read for the proposition that if a new
attorney represents a defendant on appeal, res judicata applies
unless there is an actual conflict. There may well be an actual
conflict in a situation in which trial counsel is simply joined by a
new attorney on direct appeal, thus suggesting that the per se rule
of Zuern is the incorrect approach.
Combs, 205 F.3d at 277, n. 3.
In State v. Hutton, 100 Ohio St. 3d 176 (2003), a case not cited by Hand, the Supreme
Court of Ohio held “that the doctrine of res judicata does not apply to bar a claim of ineffective
assistance of appellate counsel not previously raised in an appeal where the defendant was
represented on appeal by the same attorney who allegedly earlier provided the ineffective

13

assistance, even where the defendant was also represented on that appeal by another attorney
who had not represented the defendant at the time of the alleged ineffective assistance.” Id. at ¶
42, adopting the position of the Ohio Sixth District Court of Appeals in Evans, supra, counter to
the Zuern rule.
In Landrum v. Mitchell, 625 F.3d 905 (6th Cir. 2010), the Sixth Circuit followed Hutton
and found that res judicata did not apply to persons in Landrum’s situation (trial counsel
continues on appeal, but new co-counsel joins the case).

Id. at 920.

Landrum had also

completed his direct appeals before Zuern was decided. Id. at 221.
Hand cannot bring his claim within the actual conflict of interest exception recognized in
Lentz because his post-conviction counsel from the Ohio Public Defender office actually did
assert the ineffective assistance of their colleagues when they filed the first application for
reopening. If there was no actual conflict of interest in bringing the three ineffective assistance
of appellate counsel claims made in the first application, there could hardly have been a conflict
of interest as to the fourth ineffective assistance of appellate counsel claim, the one relevant to
this ineffective assistance of trial counsel sub-claim.

Hand was represented in his first

application for reopening by a different lawyer from the attorneys who handled his direct appeal,
but they were all from the same office. Hand has presented no case law showing any reasonable
jurist would disagree with this analysis and therefore should be denied a certificate of
appealability on this sub-claim.
Assuming arguendo the procedural default had been excused, Judge Beckwith went on to
find on the merits that there was no actual ineffective assistance of trial counsel because Hand
had waived the attorney-client protection by himself taking the stand and testifying at length
about his bankruptcy plans and discussion of them with an attorney (Order, Doc. No. 118,

14

PageID 2845-46). Hand makes no argument that reasonable jurists would disagree with this
conclusion.
Hand should therefore be denied a certificate of appealability on this sub-claim.

Sub-claim Two: Failure to Adequately Question Prospective Jurors Regarding Their
Awareness of Pretrial Publicity.

In his second sub-claim, Hand asserts his trial counsel were ineffective for failure to ask
further questions of Jurors Ray and Finnamore.
Judge Beckwith found Hand was not prejudiced by trial counsel’s failure to ask more
questions of these two jurors nor by appellate counsels’ failure to include this as a specific subclaim on appeal (Order, Doc. No. 118, PageID 2852).
The question of whether pretrial publicity was prejudicial and whether voir dire was
sufficient to remove any taint from the jurors who actually served is very fact-specific.
Reasonable jurists could disagree with this Court’s evaluation of those facts and Hand should be
granted a certificate of appealability on sub-claim two.

Sub-claim Three: Failure to Move for a Change of Venue and Exercise All Available
Peremptory Challenges.

In his third sub-claim, Hand asserts he received ineffective assistance of trial counsel
when his counsel did not move for a change of venue in light of adverse pretrial publicity and did
not exercise all available peremptory challenges. Judge Beckwith found that these claims were
barred by res judicata as the state court of appeals had held on post-conviction (Order, Doc. No.
118, PageID 2853-54). Hand does not seek a certificate of appealability on the peremptory

15

challenges point, but asserts the default of the change of venue point is debatable among
reasonable jurists.
Ohio’s criminal res judicata doctrine, outlined above, plainly precludes raising in a postconviction petition an issue which could have been decided on the record on direct appeal. Hand
claims to come within an exception to that rule because he filed exhibits with the post-conviction
petition – newspaper articles about the case – which were not part of the direct appeal record.
A petitioner in a post-conviction proceeding is not automatically entitled to an
evidentiary hearing, but must present sufficient documentary evidence dehors the record to show
entitlement to a hearing. State v. Jackson, 64 Ohio St. 2d 107 (1980). The rule in State v.
Jackson is an adequate and independent state ground for procedural default purposes. Sowell v.
Bradshaw, 372 F.3d 821 (6th Cir. 2004), citing Lorraine v. Coyle, 291 F.3d 416, 426 (6th Cir.
2002). The state court of appeals held the newspaper articles were not sufficient because they all
existed and were all publicly available at the time of trial, so they could have been made part of
the record on direct appeal. Judge Beckwith accepted this argument (Order, Doc. No. 118,
PageID 2854) and Hand has not shown any way in which that conclusion would be debatable
among reasonable jurists. He should therefore be denied a certificate of appealability on subclaim three.

Sub-claim Four: Failure to Act Upon and Utilize Hand’s Report of an Escape Attempt at
the Delaware County Jail.

In his fourth sub-claim Hand asserts he received ineffective assistance of trial counsel
when his attorneys did not use a report he made to them about an escape attempt at the Delaware
County Jail. This claim was first raised in post-conviction and rejected by the Ohio courts on the

16

same basis as sub-claim three: lack of sufficient evidence outside the record to avoid the res
judicata bar. State v. Hand, 2006-Ohio-2028, ¶ 21, 2006 Ohio App. LEXIS 1865 (5th Dist. Apr.
21, 2006). Judge Beckwith found this sub-claim was procedurally defaulted on the basis cited by
the state court (Order, Doc. No. 118, PageID 2856).
In his Motion for Certificate of Appealability, Hand presents no basis on which
reasonable jurists could disagree with this conclusion. In particular, the court of appeals found
Hand’s affidavit only repeated his trial testimony to the same effect and stated its reasons why
such an affidavit, if accepted, would completely defeat the res judicata doctrine. Hand should be
denied a certificate of appealability on this sub-claim.

Sub-claim Five: Failure to Exclude Biased Prospective Jurors

In his fifth sub-claim, Hand asserts he received ineffective assistance of trial counsel
when his trial attorneys failed to exclude Juror Lombardo.3 The Ohio Supreme Court reached
this claim on the merits and held against Hand. Judge Beckwith found the Ohio Supreme
Court’s decision was neither contrary to nor an objectively unreasonable application of clearly
established United States Supreme Court precedent (Order, Doc. No. 118, PageID 2856-61).
Hand argues that this conclusion would be debatable among reasonable jurists, but the
Magistrate Judge disagrees. Hand argues that “[d]ue to her numerous experiences with violent
crime and her close family connection to the victim in this case, there was no reasonable strategy
for allowing Juror Lombardo to remain on the jury.” (Motion, Doc. No. 142, PageID 15740.)
This sentence grossly overstates Juror Lombardo’s connection to Jill Hand: her husband was

3

While the claim is phrased in the plural as if it related to multiple jurors, in fact only the failure to exclude Juror
Lombardo is at issue.

17

acquainted with Jill Hand because she worked at the Ohio Bureau of Motor Vehicles and he was
an investigator with the Ohio Attorney General’s Office (Trial Trans. Vol. 5 at 697). That is not
a “close family connection.”
More importantly, Juror Lombardo’s experience with violent crime was uniquely
favorable to Hand. Hand’s defense was that he had shot Lonnie Welch in self-defense. About
thirty years before the trial, Ms. Lombardo had witnessed an intruder at her place of work pull a
gun on her employer and her employer shoot the intruder. Ms. Lombardo had testified in the
employer’s defense at his murder trial, which ended in an acquittal on the basis of self-defense.
Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court’s leading case on
ineffective assistance of trial counsel, requires the lower courts to defer to strategic decisions of
trial counsel. The Sixth Circuit has recently held
When evaluated under § 2254(d), a court's review of a Strickland
claim is "doubly deferential." Knowles v. Mirzayance, 556 U.S.
111, 123, 129 S. Ct. 1411, 173 L. Ed. 2d 251 (2009). The state
court's own Strickland analysis must receive the benefit of the
doubt, and "[t]he question is whether there is any reasonable
argument that counsel satisfied Strickland's deferential standard."
Harrington v. Richter, 131 S.Ct. 770, 788, 178 L. Ed. 2d 624
(2011).
Washington v. McQuiggin, 529 Fed. Appx. 766, 770, 2013 U.S. App. LEXIS 14165 (6th Cir.
2013). Reviewed under this doubly deferential standard, it is easy to see why a trial attorney
faced with a choice like this in a capital case where self-defense was the key issue would want to
keep Ms. Lombardo. Reasonable jurists would not disagree and Hand should be denied a
certificate of appealability on this fifth sub-claim.

Sub-claim Six: Failure to Object to the Admission of Co-Conspirator Statements

18

In his sixth sub-claim, Hand asserts trial counsel was ineffective for not objecting to the
admission of statements of Welch as co-conspirator statements because, he claims, there was no
independent proof of the conspiracy’s existence.

The Ohio Supreme Court concluded the

statements were admissible under Ohio R. Evid. 804(B)(3) as statements against Welch’s penal
interest, but also that there was independent proof of the conspiracy. Therefore, it concluded,
Hand suffered no prejudice from what his trial attorneys did with respect to this evidence. State
v. Hand, 107 Ohio St. 3d 378, ¶¶ 100-102, 216.
It cannot be prejudicial ineffective assistance of counsel to fail to make a particular
objection to the admission of certain evidence if (1) the objection would not have been well
taken or (2) the evidence was admissible on another ground. The Ohio Supreme Court, applying
Ohio evidence law, found both of these points satisfied. In the absence of prejudice, there can be
no valid claim of ineffective assistance of trial counsel. Reasonable jurists would not disagree,
so Hand should be denied a certificate of appealability on this sub-claim.

Sub-claim Seven: Failure to Object to Other Bad Acts Evidence and Argument

In his seventh sub-claim, Hand asserts he suffered ineffective assistance of trial counsel
when his trial attorneys failed to object to other-acts evidence (Motion, Doc. No. 142, PageID
15742). The Supreme Court of Ohio rejected this claim on the basis that Hand had shown no
prejudice. State v. Hand, supra, at ¶ 217. Judge Beckwith agreed and also found the evidence
was admissible (Order, Doc. No. 118, PageID 2862-63).
Hand argues at some length in his instant Motion about the importance of not convicting

19

people on the basis of propensity or bad character evidence4 (Doc. No. 142, PageID 15743-45).
He offers no citation of law, however, to contravene the Sixth Circuit’s conclusion in Bugh v.
Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), quoted above with respect to Ground Two, that the
United States Supreme Court has never held the use of bad character or other acts evidence to be
unconstitutional. Furthermore, the Supreme Court of Ohio found all of the objected-to other-acts
evidence was in fact admissible under Ohio law, a conclusion which is binding on the federal
courts. It cannot be ineffective assistance of trial counsel to fail to object to evidence which is
admissible. Finally, Judge Beckwith weighed this evidence with the large amount of evidence of
guilt presented at trial and found no prejudice (Order, Doc. No. 118, PageID 2862). Hand has
not shown how reasonable jurists would disagree and should therefore be denied a certificate of
appealability on this sub-claim.

Sub-claim Eight: Failure to Present Evidence of Self-Defense at Hearsay Hearings

The trial court held three hearings in limine on the question of whether the victim Lonnie
Welch’s statements could be admitted against Hand under Ohio R. Evid. 804(B)(6). To succeed,
the prosecution had to show that Hand killed Welch to make him unavailable to testify. In this
eighth sub-claim, Hand asserts he received ineffective assistance of trial counsel when his
attorneys failed to raise the claim of self-defense at those hearings. The Supreme Court of Ohio
decided that the issue could not have been raised without Hand testifying personally at the
hearing and the record before that court did not establish whether Hand or his counsel made the
4

In the Motion, Hand states he is complaining in this sub-claim about “other-acts evidence in this case relating to
escape and the prior murders of Donna and Lori Hand.” Doc. No. 142, PageID 15742. However nothing about any
such other acts evidence is part of this sub-claim. Instead, both here and in the Supreme Court of Ohio, the claim
was about fraudulent business practices, emotional reactions to Donna and Lori’s deaths, sex-related testimony,
childhood interest in “true crime” stories, and forcing his father out of business. State v. Hand, supra, ¶¶ 110-161.

20

decision that he would not testify at the hearing. The court determined that if Hand himself
decided not to testify at that point, his ineffective assistance of trial counsel claim was
foreclosed. On the other hand, if the lawyers made the decision, this would have been an
appropriate tactical decision to avoid early cross-examination by the prosecutor. State v. Hand,
110 Ohio St. 3d at ¶¶ 218-20. Judge Beckwith found this ruling was neither contrary to nor an
objectively unreasonable application of clearly established Supreme Court precedent (Order,
Doc. No. 118, PageID 2864).
In seeking a certificate of appealability on this sub-claim, Hand argues his counsel were
“ineffective for not putting forth evidence of self-defense in rebuttal to the prosecutor’s
arguments for the admittance of multiple hearsay statements [by Welch]” (Motion, Doc. No.
142, PageID 15746). This argument begs the question on which the Ohio Supreme Court’s
decision turned: what evidence, other than Hand’s own testimony?
Hand faults the Ohio Supreme Court’s evaluation of the evidence on this point:
There were no facts in the record from which the court could have
determined that Hand refused to testify pretrial or that his attorneys
considered the decision not to have him testify as trial strategy. In
fact, it was equally as plausible that Hand’s counsel did not present
him as a witness at the hearsay hearings because they did not
recognize the need to rebut the prosecution’s theory. As such, the
Ohio Supreme Court’s opinion is buttressed by unreasonable
factual determinations which reasonable jurists could conclude
entitled Hand to relief under § 2254(d)(2).
Id. This argument elides an important part of § 2254(d)(2): to qualify for relief under that
section, the determination of the facts must be unreasonable “in light of the evidence presented in
the State court proceeding.” Hand points to no place in the record of these hearings where he
asked to testify nor to any place in the post-conviction record where he says he was prepared to
testify at that point. If, as Hand argues, it is equally plausible that the lawyers just did not think

21

about it as that they made a tactical decision, the trial attorneys are entitled to the benefit of the
doubt. The Ohio courts are also entitled to the benefit of the doubt. As has been noted above,
When evaluated under § 2254(d), a court's review of a Strickland
claim is "doubly deferential." Knowles v. Mirzayance, 556 U.S.
111, 123, 129 S. Ct. 1411, 173 L. Ed. 2d 251 (2009). The state
court's own Strickland analysis must receive the benefit of the
doubt, and "[t]he question is whether there is any reasonable
argument that counsel satisfied Strickland's deferential standard."
Harrington v. Richter, 131 S.Ct. 770, 788, 178 L. Ed. 2d 624
(2011).
Washington v. McQuiggin, 529 Fed. Appx. 766, 770, 2013 U.S. App. LEXIS 14165 (6th Cir.
2013).
And finally, the ignorance hypothesis is not equally plausible. Any trial lawyer would
have known presenting self-defense required Hand to testify – there were no other witnesses.
And no trial lawyer would have willing given the prosecutor what would have amounted to a
pre-trial deposition of his client on the crux of the defense case if he could avoid it.
Reasonable jurists would not find Judge Beckwith’s conclusion on this sub-claim
debatable and Hand should therefore be denied a certificate of appealability.

Sub-claim Nine: Failure to Call Philip Anthony as a Defense Witness

In his ninth sub-claim, Hand claims he received ineffective assistance of trial counsel
when his attorneys did not call Philip Anthony as a defense witness at trial. Anthony was a
cousin of Welch to whom Welch had made statements incriminating both himself and Hand in
the murders of all three of Hand’s deceased wives. During the in limine proceedings, the
prosecution obtained court permission to elicit Welch’s statements from Anthony but then did
not call him as a witness at trial. Hand’s attorneys attempted to have the judge call Anthony as a
22

court’s witness because they said they could not “vouch” for him.5 The trial judge refused and
counsel then declined to call Anthony.
As Judge Beckwith’s decision makes clear, Anthony had some testimony about the mode
of entry of the person who murdered Donna and Lori that might have been helpful to Hand’s
self-defense theory (Order, Doc. No. 118, PageID 2866-70). However, much of what Anthony
had to say would have been harmful to Hand’s case, particularly because he had admissions from
Welch about the murder of all three wives. Based on the doubly deferential standard cited as to
sub-claims five and eight, there is little question that the decision not to call Anthony was a
reasonable tactical decision by counsel. Judge Beckwith’s decision to defer would not be
debatable among reasonable jurists and a certificate of appealability should be denied on this
sub-claim as well.

Sub-claim Ten: Failure to Request Certain Jury Instructions

In his tenth sub-claim, Hand asserts he received ineffective assistance of trial counsel
when his counsel failed to request limiting instructions on the “other acts” evidence and a
definition of “course of conduct” as used in the capital specifications. Judge Beckwith rejected
this claim on the merits, deferring to the Ohio Supreme Court’s conclusion that Hand had not
shown prejudice from omission of these instructions or that it would have been reasonable for
counsel to call the jury’s attention to the other acts evidence by requesting an instruction (Order,
Doc. No. 118, PageID 2875). As to the omitted “course of conduct” instruction, Judge Beckwith
5

At common law, a party was said to “vouch” for the witnesses that party called and could not impeach them. IIIA
Wigmore § 896 (Chadbourn Rev. 1970). The policy behind that rule was seriously questionable, id., and it was
abolished in federal practice with the adoption of Fed. R. Evid. 607 in 1975 and in Ohio practice on adoption of
Ohio R. Evid. 607 in 1980. Hand would have been permitted to impeach Anthony had he called him, but witnesses
are still identified in the lay mind with the party that calls them and this may have been on counsel’s mind.

23

found no error in its omission and therefore no ineffective assistance of trial counsel in failing to
request it.
Hand has presented no basis on which Judge Beckwith’s conclusions would be debatable
among reasonable jurists. He should therefore be denied a certificate of appealability on this
sub-claim.

Sub-claim Eleven: Cumulative Effect of Ineffective Assistance of Trial Counsel
Hand makes no request for a certificate of appealability on this sub-claim (See Motion,
Doc. No. 142, PageID 14750).

Ground for Relief Five: Ineffective Assistance of Trial Counsel at the Sentencing Phase of
Trial
As with Ground for Relief Four, Hand presents a number of specific claims of ineffective
assistance of trial counsel at the sentencing phase of the trial. These will also be considered
seriatim.
Sub-claim Two6: Failure to Present Additional Expert Psychological Testimony

Hand’s counsel hired a forensic psychologist, Dr. Davis, who testified in mitigation that
Hand would adjust well to prison life. In this sub-claim Hand asserts his counsel should also
have elicited testimony from Davis that Hand was “truthful, open, and cooperative; that his test
results did not reveal characteristics similar to those of an antisocial personality disorder; and
that Hand’s psychiatric profile was not consistent with the typical traits of a ‘cold calculating
6

A section of the Motion labeled “1” argues generally about counsel’s lack of preparation. Id. at PageID 15752. It
is not argued as a separate sub-claim. Nevertheless, this Report retains the numbering used in the Motion for ease of
reference.

24

antisocial personality.’” (Order, Doc. No. 118, PageID 2877, quoting Petition at ¶ 86.)
On direct appeal Hand had discussed Dr. Davis in the broader context of his counsel’s
lack of preparation for mitigation. When he attempted to present this specific claim in postconviction, the Ohio court of appeals found it barred by res judicata. State v. Hand, 2006-Ohio2028, ¶ 33, 2006 Ohio App. LEXIS 1865 (5th Dist. Apr. 21, 2006). Alternatively, it found no
ineffective assistance of trial counsel Id. at ¶ 35.
In this Court, Hand objected that the Ohio court of appeals was in error in finding he did
not include material dehors the record on this claim, to wit, Dr. Davis’ Affidavit reporting his
Minnesota Multiphasic Personality Inventory (“MMPI”) test results. Judge Beckwith found that
the record showed Davis had given these results to trial counsel before testifying and the subclaim should therefore have been raised on direct appeal and was accordingly barred by
procedural default (Order, Doc. No. 118, PageID 2878). Alternatively, she found the claim was
without merit, concluding it was very unlikely the jury would have spared Hand’s life just
because he was not diagnosed with antisocial personality disorder . Id. PageID 2879-81.
In the instant Motion, Hand does not request a certificate of appealability on the res
judicata issue and none should be granted on that issue. Instead, he attempts to bring the facts of
this case within the ambit of Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1996), and Williams v. Taylor,
529 U.S. 362 (2000) (Motion, Doc. No. 142, PageID 15753-58). The omitted MMPI results here
are nowhere near the omitted evidence in those cases. Nonetheless, the appellate courts have
shown a distinct tendency to consider omitted mitigation evidence closely. See, e.g., McGuire v.
Warden, ___ F.3d ___, 2013 U.S. App. LEXIS 25767 *28-47 (6th Cir., Dec. 30, 2013). Such
detailed attention bespeaks debate among reasonable jurists.

Therefore, it is respectfully

recommended that a certificate of appealability be issued on the merits of this sub-claim.

25

Sub-claim Three: Failure to Present Evidence of Hand’s Family Dysfunction and
Abysmal Childhood Through Family and Friends

In his third sub-claim, Hand asserts he received ineffective assistance of trial counsel
when his trial attorneys failed to submit evidence concerning his dysfunctional family
background and “abysmal” childhood. This claim was raised on direct appeal where the claim
was phrased as failure to call family members to testify about the “chaotic, abusive home in
which hand was raised” and to call long-term friends to testify to his generosity. The Ohio
Supreme Court noted that Dr. Davis had testified about his alcoholic father, his placement in
Childrens’ Services, and his military service. The claim was also reviewed on the merits in postconviction.
Judge Beckwith denied this sub-claim, finding that it was a reasonable tactical decision to
present the substance of this evidence through Dr. Davis. She found the decision “comports with
a strategy of attempting to personalize Hand to the jury, and of demonstrating not only that he
could adequately respond to life in prison, but that he could also contribute to improving other
inmates’ lives.” (Order, Doc. No. 118, PageID 2883.)
In the instant Motion, Hand refers to the same evidence but contends it would have been
much more persuasively presented if it had come in through family and friends instead of Dr.
Davis. Essentially Hand quarrels not with the substance of the evidence presented, but with the
strategic use made of the evidence.
By the time this evidence was being presented, the jury had already convicted Hand in
the murders of Jill Hand and Lonnie Welch and had heard testimony from which it could
reasonably have inferred that Hand conspired with Welch to murder former wives Donna and
26

Lori. The self-defense claim had failed to persuade the jury. It was certainly not unreasonable to
attempt to persuade the jury to recommend life without parole, and both Davis’ testimony and
Hand’s unsworn statement were directed to that end. Hand has presented no case law which
persuades the Magistrate Judge that reasonable jurists would not apply the doubly deferential
standard of Harrington v. Richter to this sub-claim, on which a certificate of appealability should
be denied.

Sub-claim Four: Failure to Present Pharmacological and Lay Witness Testimony to
Explain Hand’s Demeanor While Testifying

In his fourth sub-claim, Hand argues he received ineffective assistance of trial counsel
when his trial attorneys did not present pharmacological evidence and lay witness testimony to
explain his “confusing and discombobulated manner of communicating” (Motion, Doc. No. 142,
PageID 15761).
Judge Beckwith denied this sub-claim on the merits, noting Hand had presented no proof
that this additional evidence would probably have changed the result (Order, Doc. No. 118,
PageID 2885).
In seeking a certificate of appealability on this sub-claim, Hand quotes four excerpts of
his confusing testimony, then his deficiencies in speaking clearly “were likely symptoms of the
psychotropic drugs he was administered at the time.” (Motion, Doc. No. 142, PageID 15761.)
However, as this claim was argued in post-conviction, it was that trial counsel should have
presented friends as witnesses to testify he was always a poor speaker (Appendix, Vol. 10 at
101). Which is it – a short-term effect of psychotropic drugs or long-term inability to speak?
And where is the evidence to link the psychotropic drugs actually prescribed (Buspar for anxiety

27

and Trazadone for depression) to poor ability to communicate?
Reasonable jurists would not find judge Beckwith’s disposition of this claim on the
merits to be debatable, and no certificate of appealability should be issued.

Sub-claim Five: Failure to Present Testimony Regarding Hand’s Third Wife

Hand’s third wife, Glenna, was not murdered. Instead, Hand divorced her after they had
been married several years. He claims prejudice from the failure to let the jury hear from his son
and sister about his one marriage that did not end in murder.
This claim was first raised in post-conviction and supported by affidavits from Sally
Underwood, Hand’s sister, and his son, Robert, describing Glenna’s abusive personality. Judge
Beckwith denied this sub-claim on the merits, agreeing with the Magistrate Judge that it would
be extremely speculative to conclude this testimony would have changed the result, given that
Hand himself testified about his marriage with Glenna (Order, Doc. No. 118). Reasonable jurists
would not find this conclusion debatable, and a certificate of appealability should not issue on
this sub-claim.

Sub-claim Six: Failure to Investigate and Present an Effective Mitigation Strategy and
Failure to Give a Penalty Phase Closing Argument

In his sixth sub-claim, Hand presents a more general failure to investigate mitigating
evidence claim. This claim was raised on direct appeal and rejected on the merits by the
Supreme Court of Ohio which described the investigation and preparation that had been done.
That court also found the mitigation strategy of presenting hand as a potential model inmate if

28

his life was spared was a reasonable strategic decision. State v. Hand, 107 Ohio St. 3d at ¶¶ 22429. Judge Beckwith found the state court decision was not an unreasonable application of clearly
established federal law (Order, Doc. No. 118, PageID 2894).
While the Magistrate remains persuaded of the correctness of this decision, the tendency
of the appellate courts to scrutinize trial counsels’ mitigation presentations, mentioned above,
suggests this conclusion is debatable among reasonable jurists and a certificate of appealability
should be issued on this sub-claim.

Sub-claim Seven: Failure to Object to the Admission of All Guilt-Phase Evidence at the
Sentencing Phase

At the close of the sentencing hearing, the state moved to admit all the guilt-phase
exhibits (except for those related to the escape attempt) into evidence in the sentencing phase.
Hand’s counsel did not object and the trial judge admitted the exhibits. The Ohio Supreme Court
rejected this claim on the merits. Judge Beckwith noted the failure of appellate counsel to
identify any exhibits that were irrelevant to sentencing and independently found that the
complained-of exhibits would have been relevant to sentencing.
Because this is a determination made in the first instance in this Court, reasonable jurists
could debate the issue and a certificate of appealability should be issued.

Ground Six: Inadequate Trial Court Voir Dire on Pretrial Publicity

In his Sixth Ground for Relief, Hand contends the trial judge’s voir dire regarding pretrial
publicity was constitutionally inadequate. This claim was omitted from the direct appeal. It was

29

included as an improperly omitted assignment of error in the April 2006 application for
reopening which was summarily denied. State v. Hand, 110 Ohio St. 3d 1435 (2006) (table). It
was also presented in post-conviction with copies of the newspaper coverage of the case. The
Fifth District Court of Appeals found the claim barred by res judicata. State v. Hand, 2006Ohio-2028, ¶ 23, 2006 Ohio App. LEXIS 1865 (5th Dist. Apr. 21, 2006). Judge Beckwith
agreed, the basis in the direct appeal record Hand would have had to raise this issue there (Order,
Doc. No. 118, PageID 2897-2901). She offered an alternative analysis on the merits. Id. at
PageID 2901-02.
Hand seeks a certificate of appealability only on the procedural default issue (Motion,
Doc. No. 142, PageID 15769). In contrast to the usual rule requiring federal courts to defer to
state court rulings on state law issues, when the record reveals that the state court’s reliance on
its own rule of procedural default is misplaced, federal habeas review is not be precluded. White
v. Mitchell, 431 F.3d 517, 527 (6th Cir. 2005), citing Hill v. Mitchell, 400 F.3d 308 (6th Cir.
2005); Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001).
In support of his Motion, Hand notes that the court of appeals determined that the
newspaper articles submitted in post-conviction were outside the record on direct appeal. Since
all of those clippings would have been available to include in the appeal record, this issue is one
that could have been raised on direct appeal. Nevertheless, whether the court of appeals was
correct in its res judicata ruling is debatable among reasonable jurists and a certificate of
appealability should be granted on this issue.

Ground Eight: Insufficient Evidence to Support Escape Conviction

30

In his Eighth Ground for Relief, Hand asserts there was insufficient evidence presented at
trial to support his conviction for escape. The claim was raised on direct appeal and rejected by
the Supreme Court of Ohio, applying the appropriate Fourteenth Amendment standard
enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). State v. Hand, 107 Ohio St. 3d 378, ¶¶
172-77. Judge Beckwith rejected this claim, applying the doubly deferential standard of review
required in habeas for sufficiency of the evidence claims (Order, Doc. No. 118, PageID 2907,
citing Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). See also Coleman v. Johnson, 566
U.S. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per curiam).
In seeking a certificate of appealability, Hand again emphasizes the evidence opposed to
his conviction. The gist of the argument is that the witnesses against his conviction must, as a
matter of constitutional law, be given sufficient credibility to create a reasonable doubt. The
standard under Jackson is that the evidence must be construed most strongly in favor of the
prosecution. The Magistrate Judge continues to believe this Ground for Relief was properly
rejected, but the weighing of evidence is a matter of judgment on which reasonable jurists could
disagree. Therefore it is respectfully recommended that a certificate of appealability be granted
on the Eighth Ground for Relief.

Ground Nine: Improper Jury Instructions

In his Ninth Ground for Relief, Hand asserts the trial court committed constitutional error
in its jury instructions in three particulars.

Sub-claim One: Complicity Instruction

31

With respect to the murder of Jill Hand, the State amended the bill of particulars after the
close of the evidence to allege complicity in her death as an alternative to Hand’s being the
principal offender. On the basis of this amendment, the trial judge instructed the jury on
complicity. Error with respect to both of these trial court decisions formed the basis of Hand’s
Fifth Proposition of Law on direct appeal. Relying on Ohio R. Crim. P. 7(D), the Supreme Court
of Ohio rejected both claims. State v. Hand, 107 Ohio St. 3d 378, ¶¶ 178-84 (2006). Judge
Beckwith concluded this decision was not contrary to or an objectively unreasonable application
of clearly established federal law (Order, Doc. No. 118, relying on Hill v. Perini, 788 F.2d 406
(6th Cir. 1986), and Stone v. Wingo, 416 F.2d 857 (6th Cir. 1969)).
In seeking a certificate of appealability on this Ground for Relief, Hand relies on his
Sixth Amendment right to be notified of the nature and cause of the accusation (Motion, Doc.
No. 142, PageID 15774). Essentially he complains about the timing of the notice, not its content.
Judge Beckwith noted in her decision, “Hand has not identified how the purported lack of notice
prejudiced his defense, and he failed to seek a continuance after the amendment was granted.”
(Order, Doc. No. 118, PageID 2912.) Hand has not cured that deficiency in his Motion for
Certificate of Appealability. Nor has he made any specific complaint about the content of the
complicity instruction, as opposed to the amendment to the bill of particulars. Hand has not
shown his entitlement to a certificate of appealability on this sub-claim.

Sub-claim Two: Failure to Narrow the Course-of-Conduct Specification

Hand was charged with a course-of-conduct capital specification, to wit, that Jill Hand

32

and Lonnie Welch were killed as part of a course of conduct which involved the killing of two or
more people.

In his Ninth Ground for Relief, Hand claims the jury instruction did not

sufficiently define “course of conduct” which was therefore “an unconstitutionally vague criteria
[sic] upon which to determine application of the death penalty.” (Motion, Doc. No. 142, PageID
15776.)
Ohio Revised Code § 2929.04(A)(5) provides in relevant part that a person may be
executed if the State proves beyond a reasonable doubt that “the offense at bar [aggravated
murder] was part of a course of conduct involving the purposeful killing of or attempt to kill two
or more persons by the offender.” A specification under § 2929.04(A)(5) was appended to the
counts of the indictment charging Hand with the murder of Jill Hand and Lonnie Welch. The
trial judge charged the jury on the meaning of the course-of-conduct language and Hand did not
object.

When this claim was raised on direct appeal, the Ohio Supreme Court found it

procedurally defaulted under Ohio’s contemporaneous objection rule. State v. Hand, 107 Ohio
St. 3d 378 ¶ 191 (2006). Judge Beckwith enforced this procedural default against Hand (Order,
Doc. No. 118, PageID 2912-13). Hand offers no argument as to why that ruling would be in any
way debatable among reasonable jurists and therefore no certificate of appealability should be
issued on the Court’s procedural default ruling.
Having enforced the contemporaneous objection waiver, the Ohio Supreme Court also
ruled there was no plain error. Id. ¶¶ 192-98. Judge Beckwith concluded this ruling was neither
contrary to nor an unreasonable application of Supreme Court precedent (Order, Doc. No. 118,
PageID 2919-20.) In particular, she concluded that the course-of-conduct specification here was
much more closely tied to the facts of the case as presented than were the facts in State v. Scott,
101 Ohio St. 3d 31 (2004), a case in which the defendant was also denied habeas relief (Order,

33

Doc. No. 118, PageID 2913-20, adopting the reasoning of Scott v. Houk, 2011 U.S. Dist. LEXIS
133743 (N.D. Ohio Nov. 18, 2011.)
In arguing for a certificate of appealability, Hand cites Espinosa v. Florida, 505 U.S.
1079 (1992). In that case the Supreme Court rejected as unconstitutionally vague a Florida
capital specification which permitted execution of a person found to have committed a murder
which was “especially wicked, evil, atrocious, or cruel.” Id. at 1081.
In his dissent in State v. Scott, supra, Justice Pfeiffer complained of his colleagues’
failure to adopt “an appropriate standard for determining what constitutes a course of conduct
involving the purposeful killing of or attempt to kill two or more persons.” 101 Ohio St. 3d 31 at
51.

He noted that he had voted to affirm course-of-conduct convictions on a number of

occasions and he concurred in affirming Hand’s conviction at issue here. Nevertheless, his
opinion on the vagueness of the specification shows that reasonable jurists could disagree on that
point and Hand should be granted a certificate of appealability on merits prong of Judge
Beckwith’s decision on this sub-claim.

Sub-claim Three7: Improper Instruction on Reasonable Doubt

In his third sub-claim, Hand complains of the trial court’s reasonable doubt instruction in
three particulars, to wit, inclusion of the descriptors of “willing to act,” “firmly convinced,” and
“moral evidence.” (Motion, Doc. No. 142, PageID 15780-86.) The Supreme Court of Ohio
summarily rejected this claim on the basis of stare decisis. State v. Hand, 107 Ohio St. 3d 378, ¶
261 (2006). Judge Beckwith concluded this decision was neither contrary to nor an unreasonable

7

Hand has numbered two of his Ninth Ground sub-claims as “2.” (Motion, Doc. No. 142, PageID 15776, 15780.)
The Magistrate Judge here labels the second of those sub-claims as “Three” for clarity of presentation.

34

application of Supreme Court precedent (Order, Doc. No. 118, PageID 2923, citing Byrd v.
Collins, 209 F.3d 486 (6th Cir. 2000); Thomas v. Arn, 704 F.2d 865 (6th Cir. 1983); White v.
Mitchell, 431 F.3d 517 (6th Cir. 2005); and Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001)).
Hand has not shown this conclusion is debatable among reasonable jurists. He cites only
Victor v. Nebraska, 511 U.S. 1 (1994), where the Supreme Court approved a reasonable doubt
instruction including the moral evidence language which was qualified with “[m]oral evidence,
in this sentence, can only mean empirical evidence offered to prove such matters – the proof
introduced at trial.” (Quoted at Motion, Doc. No. 142, PageID 15785.) But it does not follow
logically from the Supreme Court’s approval of one reasonable doubt instruction that a different
instruction under a different State’s pattern jury instructions would be disapproved. A certificate
of appealability should be denied on this sub-claim.

Ground Eleven: Ineffective Assistance of Appellate Counsel

In his Eleventh Ground for Relief, Hand contends he received ineffective assistance of
appellate counsel in six particulars. Judge Beckwith denied all six and Hand seeks a certificate
of appealability as to each of them (Motion, Doc. No. 142, PageID 15786-92). The sub-claims
will be considered seriatim.

Sub-claim One: Failure to Preserve Collateral Estoppel Claim

Hand was awarded $50,000 from the Ohio victims’ compensation fund as a result of the
murder of Donna Hand. Trial counsel moved to dismiss the specification to Count Two of the

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indictment for complicity in Donna’s murder on the grounds of collateral estoppel, since the
award required a finding that Hand was not at fault for her death. The trial judge denied the
motion and raised a concern that Hand may have committed fraud on the Ohio Court of Claims
in obtaining the award. This claim was not raised on direct appeal.
Judge Beckwith found this sub-claim (as well as the next two) procedurally defaulted
because it was first raised in Hand’s second application to reopen his direct appeal in September
24, 2007, which was rejected by the Ohio Supreme Court because it was untimely (Order, Doc.
No. 118, PageID 2926-32).

She concluded the Supreme Court’s deadline for filing such

applications was firmly established and regularly followed and therefore entitled to preclusive
effect. Id.

Hand makes no argument as to why this conclusion by Judge Beckwith would be

subject to debate among reasonable jurists (see Motion, Doc. No. 142, PageID 15787-88).
Therefore no certificate of appealability should issue as to the procedural default ruling on this
sub-claim.
On the merits of this claim, Judge Beckwith found that it was in no way stronger than the
issues raised on direct appeal in that Hand had not made the required showing that the issue had
been actually litigated before the Court of Claims (Order, Doc. No. 118, PageID 2933). In his
Motion, Hand makes no attempt to show that that conclusion would be debatable among
reasonable jurists; indeed, he makes no comparison of this claim with other claims raised on
direct appeal, but merely reargues the merits of the collateral estoppel claim (Motion, Doc. No.
142, PageID 15787-88). Therefore no certificate of appealability should be issued on the merits
conclusion of this sub-claim.

Sub-claim Two: Failure to Claim Ineffective Assistance of Trial Counsel Based on the
Trial Attorney’s Failure to Protect the Attorney-Client Communication Privilege with
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Hand’s Bankruptcy Counsel.
In his second8 sub-claim on Ground Eleven, Hand claims he received ineffective
assistance of appellate counsel when his appellate attorneys failed to claim he had received
ineffective assistance of trial counsel when his trial attorney did not protect the privilege for his
communications with his bankruptcy attorney.

Judge Beckwith found this sub-claim

procedurally defaulted on the same basis as sub-claim one and Hand makes no argument to show
this conclusion would be debatable among reasonable jurists. He is accordingly not entitled to a
certificate of appealability on the procedural default ruling.
On the merits, Judge Beckwith found Hand had waived the privilege by testifying himself
about communications with the bankruptcy attorney (Order, Doc. No. 118, PageID 2933 and
discussion supra of Ground 4, sub-claim A). Since the underlying claim has no merit, a fortiori
it is weaker than claims actually raised on appeal. Hand makes no argument to show that this
conclusion is debatable among reasonable jurists and should therefore be denied a certificate of
appealability on the merits of this sub-claim.

Sub-claim Three: Failure to Challenge the Trial Court’s Denial of the Motion to Dismiss
Specifications Relating to the Murder of Hand’s First Two Wives

In sub-claim three, Hand claims it was ineffective assistance of appellate counsel to fail
to challenge the trial court’s denial of the motion to dismiss the specifications relating to the
murders of Donna and Lori Hand. Judge Beckwith dismissed this sub-claim as procedurally
defaulted on the same basis as the first two sub-claims under Ground Eleven (Order, Doc. No.
118, PageID 2932).

Hand offers no basis on which reasonable jurists would debate this

8

Hand has made two sub-claims under Ground Eleven which he has numbered “3.” The analysis here relates to the
first of those, which appears at PageID 15788 and is renumbered “second” for clarity of presentation.

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conclusion and he should therefore not receive a certificate of appealability on this procedural
default ruling.
On the merits, Judge Beckwith concluded this argument was no stronger than Hand’s
direct attack on the admission of other acts evidence (Order, Doc. No. 118, PageID 2933-34).
Hand essentially concedes this point by re-arguing the Ohio R. Evid. 404(B) claim in his Motion.
No certificate of appealability should issue on the merits of this third sub-claim.

Sub-claim Four: Failure to Challenge the Sufficiency of the Evidence on the Aggravating
Circumstances and Specifications Two through Six of Count Two

In this sub-claim Hand claims he received ineffective assistance of appellate counsel
when his appellate attorney did not challenge the sufficiency of the evidence to prove that he was
complicit in the murders of Donna and Lori.9 This sub-claim was properly preserved for
consideration on the merits, but Judge Beckwith found it was without merit because of the
evidence supporting complicity from Welch’s statements over the years to his family and friends
(Order Doc. No. 118, PageID 2935).
In seeking a certificate of appealability, Hand again claims, as he did on the merits of his
Petition, that the evidence against him “rested almost entirely upon jailhouse informants.”
(Motion, Doc. No. 142, PageID 15791.) Later in the same paragraph he refers to this informant,
Kenneth Grimes, as the “sole witness offered to prove the aggravating circumstance. . . .” Id.
Hand offers no reason why, assuming Welch’s statements were admissible, they cannot count in
the Jackson v. Virginia analysis of sufficiency. Id. No certificate of appealability should issue
on this sub-claim.

9

Hand was not charged directly with complicity in the murders of Donna and Lori, but with killing Welch to
prevent him testifying about those murders.

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Sub-claim Five: Failure to Amend the Brief on Appeal to Include Juror Bias Issues

In this sub-claim, Hand asserts he received ineffective assistance of appellate counsel
when his appellate attorneys did not seek to amend their merit brief after they had obtained leave
to supplement the appellate record with the juror questionnaires. Judge Beckwith denied this
claim on the merits, noting the separate claim of inadequate voir dire on the same issues (Order,
Doc. No. 118, PageID 2935-36). Hand makes no argument as to why this sub-claim would have
been stronger than Ground Four, sub-claim (B). A fortiori he has not shown Judge Beckwith’s
conclusion that it was not stronger would be debatable among reasonable jurists. Therefore
Hand should be denied a certificate of appealability on this sub-claim.

Sub-claim Six: Failure to Appeal the Scope of the Trial Court’s Voir Dire on Juror Bias
from Pretrial Publicity.

As with the prior sub-claim, Judge Beckwith found Hand had not shown this claim of
ineffective assistance of appellate counsel was stronger than the underlying claims of ineffective
assistance of trial counsel or trial court error (Order, Doc. No. 118, PageID 2936). A certificate
of appealability should be denied on this sub-claim on the same basis as sub-claim five.

Conclusion

In accordance with the foregoing analysis, Hand should be granted a certificate of
appealability on the fair presentation issue in Ground Two; on sub-claim two of Ground Four; on

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sub-claims 2, 6, and 7 of Ground Five; on Grounds Six and Eight; and on the merits only of subclaim 2 of Ground Nine. All other requests for a certificate of appealability should be denied.

January 3, 2014.
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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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