Conway, III v. Warden Houk

Filing 229

ORDER denying 226 Petitioners motion to stay and to authorize his habeas counsel to represent him in connection with state court successive postconviction proceedings. The Court GRANTS Petitioners request for an extension of time to file the Traverse. The Traverse shall be filed within 30 days of the date of this Opinion and Order. Signed by Chief Judge Algenon L. Marbley on 3/15/2023. (cw)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES T. CONWAY, III,
Petitioner,
Case No. 2:07cv947
CHIEF JUDGE MARBLEY
Magistrate Judge Jolson

v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
Petitioner Conway, a prisoner sentenced to death by the State of Ohio, has pending before
this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court
on Petitioner’s Motion to Hold These Proceedings in Abeyance Pending the Exhaustion of State
Court Remedies. (ECF No. 226.) For the reasons that follow, the Court DENIES Petitioner’s
motion.
I.

BACKGROUND
Petitioner was convicted and sentenced to death for the January 19, 2002, shooting death

of Jason Gervais, which occurred at a Columbus, Ohio club called Dockside Dolls. Mandell
Williams was also shot and wounded. State v. Conway, 108 Ohio St.3d 214 (2006). Following
direct appeal and state postconviction proceedings, Petitioner initiated the instant habeas action
on January 29, 2007, by filing a notice of intent to file a habeas petition, as well as motions to
proceed in forma pauperis and for the appointment of counsel. (ECF No. 1.) Petitioner filed his
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initial habeas petition on October 2, 2007. (ECF No. 16.) Subsequently, and with leave of
Court, Petitioner filed an Amended Petition, (ECF No. 95), a Second Amended Petition, (ECF
No. 141), and a Third Amended Petition. (ECF No. 217.)
In the early stages of this habeas action, the Court permitted considerable factual
development. On March 17, 2010, the Court granted Petitioner’s request to conduct a records
deposition of the Columbus Police Department and the original police investigation of the
shootings. (ECF No. 33.) The Court expanded the record with documents from that records
deposition, as well as documents obtained as part of the discovery in Petitioner’s other unrelated
capital habeas corpus case. (ECF No. 51.) See Conway v. Houk, Case No. 3:07cv345 (S.D.
Ohio).
On March 1, 2016, and following discovery, this Court granted Petitioner’s request to
stay and hold the proceedings in abeyance so he could return to the state courts to file a
successive postconviction action in order to exhaust a newly discovered Brady claim, a newly
discovered conflict of interest claim pertaining to his original trial attorney Christopher Cicero,
and additional factual support for his claims of ineffective assistance of trial and appellate
counsel. (ECF No. 161.) With respect to the Brady claim specifically, Petitioner asserted that
documents he obtained through the records deposition of the Columbus Police Department
“reveal[ed] that the prosecution suppressed three categories of evidence that were both favorable
and material 1) prior inconsistent statements of its witnesses, 2) witness statements that indicated
that a specific person other than Petitioner committed the crime, and 3) witness statements that
conflict with the prosecution’s theory of the case.” (ECF No. 132, at PAGEID # 9804.)
Petitioner also pointed to previously undisclosed statements concerning Attorney Cicero that he
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claimed established an actual conflict of interest. (Id. at PAGEID # 9811.)
Ohio imposes stringent jurisdictional requirements for pursuing an untimely and/or
successive postconviction action, and the state courts in Petitioner’s case determined he failed to
satisfy those requirements. (ECF No. 187-12, at PAGEID # 13492-13513; ECF No. 187-13, at
PAGEID # 13940-13967.) On January 6, 2017, the state trial court denied the successive
postconviction petition without a hearing, finding “all of Petitioner’s grounds for relief are barred
by the prohibition against successive petitions under R.C. 2953.23(A), or by the doctrine of res
judicata.” (ECF No. 187-12, at PAGEID # 13499-13500.) The Tenth District Court of Appeals
affirmed. State v. Conway, No. 17AP-90, 2019-Ohio-382, 2019 WL 480342 (Ohio App. 10th
Dist. Feb. 7, 2019); (ECF No. 187-13, at PAGEID # 13940.) The Court of Appeals addressed
Petitioner’s claims in detail but ultimately held Petitioner failed to demonstrate that the trial court
had jurisdiction under § 2953.23(A)(1). Id. The Ohio Supreme Court declined to accept
jurisdiction over Petitioner’s appeal. State v. Conway, 156 Ohio St.3d 1464 (2019); (ECF No.
187-14, at PAGEID # 14180.)
On August 13, 2019, and following completion of the state court proceedings, this case
was reinstated to the Court’s active docket. (ECF No. 190.) On September 24, 2021, Petitioner
filed a Third Amended Petition, (ECF Nos. 216, 217), setting forth the Brady claim he attempted
to litigate in the successive state court postconviction proceeding as his Eighteenth Claim for
Relief. On January 13, 2022, Respondent filed a Return of Writ arguing any claims raised in the
successive postconviction action were procedurally defaulted, because the state appellate court
determined it lacked jurisdiction to hear the successive petition. (ECF No. 221.)
Citing the Ohio Supreme Court’s recent decision in State v. Bethel, 167 Ohio St.3d 362
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(2022), Petitioner now moves to stay and hold the proceedings in abeyance, so he may return to
the state courts for a second time in order to pursue the same Brady, ineffective assistance of
counsel and conflict of interest claims the state courts dismissed. (ECF No. 226.) Petitioner also
moves the Court to authorize his federal habeas counsel to represent him during his anticipated
state court proceedings. The Warden opposes Petitioner’s motion. (ECF No. 227.)
II.

DISCUSSION
Petitioner contends the Ohio Supreme Court’s recent decision in State v. Bethel, 167

Ohio St.3d 362 (2022), “expands the scope of the remedies afforded by the filing of a successive
state court petition and a motion for a new trial,” and “renders unexhausted three of the
constitutional claims raised in Conway’s pending third amended habeas petition.” (ECF No.
226, at PAGEID # 16029.) Respondent opposes Petitioner’s motion to stay and abey, arguing
that Petitioner has already exhausted the “new” claims set forth in his Third Amended Petition.
(ECF No. 227, at PAGEID # 16042.)
The Court’s analysis of this issue must necessarily begin with a discussion of the Ohio
Supreme Court’s Bethel decision.
A. State v. Bethel
In State v. Bethel, 167 Ohio St.3d 362 (2022), and more recently, State v. McNeal, 169
Ohio St.3d 47 (2022) and State v. Hatton, __ N.E.3d __, 2022 WL 16841856 (Nov. 10, 2022),
the Ohio Supreme Court considered when a trial court has subject matter jurisdiction to consider
a post-trial Brady claim set forth in either a successive postconviction petition or a Criminal Rule
33 motion for leave to file a motion for a new trial. The issue before the Ohio Supreme Court
was whether a timeliness or due diligence requirement could be imposed upon a petitioner after
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discovering (or after the point when a petitioner should have discovered) that the state withheld
Brady material.
Section 2953.23(A)(1) of the Ohio Revised Code conditions trial court jurisdiction over
untimely or successive postconviction petitions on a petitioner’s showing (a) that he was
“unavoidably prevented from discovery of the facts” underlying his claim, and (b) that no
reasonable factfinder would have found him guilty or eligible for a death sentence but for the
constitutional error at trial. In Bethel, the Supreme Court of Ohio held that a petitioner asserting
a claim under Brady v. Maryland, 373 U.S. 83 (1963), “satisfies the ‘unavoidably prevented’
requirement contained in R.C. 2953.23(A)(1)(a) by establishing that the prosecution suppressed
the evidence on which the defendant relies.” 167 Ohio St.3d at 368. Bethel made clear that
petitioners are not required to show they could not have discovered suppressed evidence by
exercising reasonable diligence, because that “burden” is “inconsistent with Brady.” Id.
Quoting Banks v. Dretke, 540 U.S. 668, 695 (2004), the Bethel court reminded prosecutors and
lower courts alike that criminal defendants “have no duty to ‘scavenge for hints of undisclosed
Brady material.’” Id. (quoting Dretke, 540 U.S. at 695). The Ohio Supreme Court also
interpreted the “no reasonable factfinder” requirement contained in § 2953.23(A)(1)(b) as
coterminous with Brady materiality, by considering the merits of Bethel’s Brady claim in its
determination of jurisdiction over the successive petition. The Ohio Supreme Court advised that
the § 2953.23(A)(1)(b) requirement “goes to the heart of Brady’s third prong, which requires
Bethel to show that ‘there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.’” Bethel, 167 Ohio St.3d at 36970 (quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)). Bethel, the court concluded, was “not
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require[d] to show that disclosure of the [] information would have resulted in his acquittal.” Id.
The Ohio Supreme Court also determined that Criminal Rule 33 does not contain a
“reasonable time” filing requirement in connection with motions for leave to file a motion for a
new trial when the basis for the motion is newly discovered evidence. The lower courts denied
Bethel’s motion for leave to file a motion for a new trial because of “unreasonable delay”
between the time of discovery of the evidence and the time Bethel filed his motion. The Ohio
Supreme Court explained that although Criminal Rule 33 requires a petitioner to show that he
was “unavoidably prevented from the discovery of the evidence upon which he must rely,” the
Rule “does not give a deadline by which a defendant must seek leave to file a motion for a new
trial based on the discovery of new evidence.” Id. at 375. Ultimately, the Ohio Supreme Court
declined to remand the case on this basis, finding that “even assuming arguendo that Bethel
would be entitled to a hearing on his motion for a new trial, the hearing would be an exercise in
futility, because we have concluded that Bethel’s Brady claim, which is the basis of his motion,
is without merit.” Id. at 377.
B. The Instant Motion
Petitioner advances two reasons why this Court should stay the proceedings so he may
return to state court in order to reassert the claims he raised in his second postconviction petition.
First, Petitioner argues that the Ohio Supreme Court’s Bethel decision has expanded the state
court remedies available to him, by opening the door to the filing of a motion for leave to file a
motion for a new trial based on the Brady allegations and newly discovered evidence presented
in his prior successive postconviction petition. (ECF No. 226, at PAGEID # 16029.) Petitioner
characterizes Criminal Rule 33 as a “more viable remedy” now that he is no longer required to
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move for leave to file a motion for a new trial within a reasonable time after discovering the new
evidence. (Id. at PAGEID # 16031.) Secondly, Petitioner claims that Bethel eliminated the “no
reasonable juror” gatekeeping requirement contained in Section 2953.23(A)(1)(b) governing
successive postconviction actions, and “in its place inserted the well-known standard for the
evaluation of Brady claims, which is arguably a ‘lower standard of proof’ than the ‘no reasonable
juror’ gatekeeping rule.” (ECF No. 228, at PAGEID # 16052.)
In response, the Warden argues that stay and abeyance is inappropriate here, because
Petitioner has already exhausted the constitutional claims he seeks to reassert, and Petitioner has
no unexhausted claims in his petition. (ECF No. 227, at PAGEID # 16042.) Respondent also
argues that Petitioner does not have an available state court remedy under Criminal Rule 33,
because the state courts determined in connection with the gatekeeping requirement set forth in §
2953.23(A)(1)(b) that Petitioner’s Brady claim lacks merit. (Id.) In that vein, Respondent cites
the Ohio Supreme Court’s determination in Bethel that even if a petitioner is entitled to leave to
file a motion for a new trial, remand for a hearing is not required if the hearing would be an
“exercise in futility,” because the Brady claim at issue is without merit. (Id.) (citing Bethel, 167
Ohio St.3d at 377.) Finally, Respondent argues that Bethel did not change the “no reasonable
juror” requirement set forth in § 2953.23(A)(1)(b).
C. Exhaustion and Petitioner’s Prior Proceedings
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which governs
federal habeas corpus petitions, requires that state prisoners exhaust all federal claims before
those claims may be reviewed by district courts on habeas review. 28 U.S.C. 2254(b)(1). This
entails giving state courts “one full opportunity to resolve any constitutional issues by invoking
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one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999). The exhaustion requirement is satisfied once the petitioner has fairly
presented all of his claims to the highest court in the state in which he was convicted, thus giving
the state a full and fair opportunity to rule on those claims before the petitioner seeks relief in
federal court. Id. at 842. Fair presentment requires the petitioner to raise the same factual and
legal basis for the claim in state court that he seeks to raise in federal habeas corpus. Gray v.
Neverland, 518 U.S. 152, 162–63 (1996); Williams v. Anderson, 460 F.3d 789, 806 (6th Cir.
2006).
Federal district courts may not adjudicate a mixed habeas petition that contains both
exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 518–19 (1982) (finding that
comity requires that state courts have the first opportunity to review unexhausted claims).
District courts have the discretion, however, to stay habeas proceedings and hold them in
abeyance to allow a petitioner with a mixed petition to return to state court to exhaust his
unexhausted claims. Rhines v. Weber, 544 U.S. 269, 275–76 (2005). A stay is appropriate only
when the unexhausted claims are not plainly meritless, and the petitioner has shown good cause
for his failure to exhaust the claims earlier. Id. at 277. Stay-and-abeyance is only available in
limited circumstances at the discretion of the district court and must be conditioned on time
limits so as not to undermine the AEDPA’s objectives of streamlining habeas proceedings and
encouraging finality. Id. at 276–78. Thus, a stay is inappropriate “if a petitioner engages in
abusive litigation tactics or intentional delay.” Id. at 278.
Here, this Court stayed these proceedings to permit Petitioner to return to state court in

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order to litigate a successive postconviction petition asserting, in part, a Brady claim developed
during the discovery authorized as part of these habeas corpus proceedings. The Ohio Tenth
District Court of Appeals did not reach the merits of the claim. Instead, that court determined
that Petitioner’s clams were either barred by res judicata or did not meet the gatekeeping
requirements of O.R.C § 2953.23(A)(1). Because the Ohio Supreme Court declined to exercise
jurisdiction over Petitioner’s appeal, the decision by the Court of Appeals constitutes the last
reasoned state court decision addressing Petitioner’s successive petition for postconviction relief.
See Hughbanks v. Hudson, 2 F.4th 527, 535-36 (6th Cir. 2021) (citing Barton v. Warden, 786
F.3d 450, 462 (6th Cir. 2015) (per curiam) (holding that a state court’s explicit application of a
procedural rule to bar the adjudication of a claim on the merits counts as a “last reasoned
opinion”).
In determining that Petitioner failed to satisfy the jurisdictional requirements of O.R.C.
2953.23(A)(1), the Court of Appeals held as follows:
D. Fourth Assignment of Error
{¶ 33} In the fourth assignment of error, Conway argues that the trial court erred
by dismissing the fourth ground of relief presented in his petition, in which he
asserted that his due process rights under the Fourteenth Amendment were violated
when the prosecution withheld information favorable to his defense. (Appellant’s
Brief at 21.)
{¶ 34} Under Brady v. Maryland, 373 U.S. 83, 87 (1963), “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution.” “The evidence is material only if there
is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the outcome.” United States v.
Bagley, 473 U.S. 667, 682 (1985).
{¶ 35} Three elements must be met to show a Brady violation. Beuke v. Houk, 537
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F.3d 618, 633 (6th Cir.2008), citing Strickler v. Greene, 527 U.S. 263, 280 (1999).
First, the evidence must be either exculpatory or impeaching, and therefore
favorable to the accused. Id. Second, the prosecution must have suppressed the
evidence in question, whether intentionally or not. Id. Third, the defendant must
have suffered prejudice as a result to the suppression. Id.
{¶ 36} Conway identifies four categories of undisclosed information that he
believes would have been favorable to his defense, each of which we consider in
turn.
{¶ 37} First, Conway argues that the prosecution suppressed prior inconsistent
statements of Brian McWhorter and Ronald Trent, both of whom testified against
him. In his petition for relief, Conway identifies several police reports and
interviews with McWhorter during which McWhorter denied seeing Conway in the
parking lot of the shooting and denied seeing him with a gun. (Petition at 30-31.)
Conway argues that those statements were inconsistent with McWhorter's trial
testimony, during which he stated that (1) he saw Conway immediately obtain a
gun from the trunk of a car after Conway's brother stated that he had just been
stabbed, and (2) he saw Conway lowering his hand with a gun in it after shots were
fired. (Petition at 31.)
{¶ 38} The police reports and interviews with McWhorter memorialize two initial
interviews conducted with him early on January 24, 2002, during which McWhorter
admitted that Conway was at the bar at the time of the shooting but denied knowing
any other details. (Petition Ex. Nos. 5, 22 & 23.) A third interview occurred the
same day, after McWhorter called the detectives himself and said that he wanted to
tell them what really happened the night of the shooting. During the interview,
McWhorter stated that on the night of the shooting, he heard Conway's brother Jeff
tell Conway that he had just been stabbed, after which Conway left his view.
Thereafter, McWhorter heard gunshots. He told the detectives that he did not see
Conway with a gun. (Petition Ex. No. 24.)
{¶ 39} Even if these interviews were not available to Conway because the state
withheld them, they do not amount to a violation under Brady because they are not
inconsistent the statements that McWhorter made at trial. During his testimony,
McWhorter stated that he had lied to the detectives during the initial two interviews
because he had been “scared.” (Jan. 23, 2003 Tr. Vol. X at 1759.) McWhorter was
cross-examined about these interviews by Conway's attorney at trial, during which
he stated that he went to the police for the third interview after being “jumped” by
Conway’s friends. (Tr. Vol. X at 1781.) Thus, the interview reports were consistent
with McWhorter's testimony and would not have provided grounds for impeaching
McWhorter. In addition, even if McWhorter's trial testimony stating that he saw
Conway with a gun were inconsistent with a previous statement, such inconsistency
could not have prejudiced Conway, who admitted at trial that he fired the
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shots. Conway II at ¶ 19.
{¶ 40} Conway also asserts that a Brady violation occurred because the state
withheld a letter from Ronald Trent to prosecutors in which Trent stated that he
wanted to testify in exchange for a deal. (Petition at 31.) Attached to the petition is
a letter from Trent to the Franklin County Prosecutor dated March 12, 2002, in
which Trent states that he has “detailed information on this case” and is “willing to
work out a deal with your office.” (Petition Ex. No. 26.) According to Conway, this
statement was inconsistent with Trent's testimony at trial, where he stated that his
motivation for testifying against Conway was “because he laughed at someone
else's pain from another killing.” (Petition at 31; Tr. Vol. X at 1825.)
{¶ 41} The purported inconsistency cited by Conway would not have had an
impeaching effect on Trent at trial. During his testimony, Trent admitted that he
went to his initial meeting with the prosecutor hoping to make some kind of deal in
exchange for providing information. (Tr. Vol. X at 1830.) In addition, Trent stated
that he did make a deal allowing him to obtain work release while in prison in
exchange for working with the Franklin County Sheriff’s office to gather
information. (Tr. Vol. X at 1831). Thus, the letter's contents were not inconsistent
with Trent's testimony, would not have had an impeaching effect, and do not
support Conway's claim of a Brady violation.
{¶ 42} Second, Conway argues that the state suppressed statements made by
eyewitnesses that identified individuals other than Conway as the shooter.
(Appellant's Brief at 22.) The statements in question were part of reports prepared
by police investigators describing initial leads obtained from interviewing persons
who had been at the scene of the shooting, including the surviving victim. (Petition
Ex. Nos. 5, 27-38, 41-43.) Many of the witness statements do not identify the
shooter by name, and many fit Conway’s physical description at the time of the
shooting. Conway fails to connect any of these statements to the testimony of
particular witnesses whose credibility they would have impeached. Furthermore,
none of these statements were exculpatory because Conway, while testifying on his
own behalf, admitted to the shooting at trial. Accordingly, we reject the contention
that they support his allegation of a violation under Brady.
{¶ 43} Third, Conway argues that a Brady violation resulted from the prosecution’s
suppression of evidence that he believes contradicted its theory of the case.
(Appellant’s Brief at 23.) He again mentions the witness statements, which, for the
reasons just discussed, do not demonstrate a Brady violation. Id.
{¶ 44} Conway also cites to what he describes as “the statement of the security
guard” in exhibit Nos. 54-56. A security guard working at an apartment complex
next to the bar where the shooting occurred heard gunfire, saw people running, and
saw one man get into a silver Chevrolet that he then drove onto the apartment
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complex premises. He witnessed the car strike another car before the driver got out
and ran into one of the buildings. The security guard reported the license number
of the car to the police. (Petition Ex. Nos. 55-56.) The police interviewed the person
to whom the car was registered, who claimed not to be at the bar that night. (Petition
Ex. No. 54.) It is not clear how this report contradicts the state's theory of the case,
and Conway does not elaborate on the assertion that it does. Many people were
involved in the fight that immediately preceded the shooting, and it is logical that
many of them would flee at the sound of shots being fired.
{¶ 45} Conway also cites to a police interview with an employee of the club named
Christopher Laney. (Appellant's Brief at 24; Petition Ex. No. 60.) Laney recounts
attempting to separate individuals after a physical assault that occurred inside the
club, escorting the victim out, and then witnessing the melee in the parking lot. At
that time, an individual who did not match Conway’s description pulled what Laney
believed to be a gun out of his pocket and pointed it at him. Laney then heard five
or six gunshots. (Petition Ex. No. 60.) Once again, Conway does not explain how
this information contradicts the state's case. Laney did not state that the man he saw
fired the shots he heard. In fact, Laney's narrative suggests that the man he saw did
not fire the shots because the encounter with the man holding the gun was nearly
contemporaneous with the sound of gunshots and Laney did not report that the man
fired the weapon. The interview is merely evidence that another individual besides
Conway had a firearm that night. Finally, it must be noted once again that neither
Laney's statement nor the security guard's statements exculpate Conway, who
admitted to firing the shots that struck the victims.
{¶ 46} In addition, Conway also cites to exhibit No. 61 of his petition with the
conclusory assertion that it contains “statements of other witnesses whose
statements impeached the prosecution's case.” (Appellant's Brief at 24.) The exhibit
contains an interview with one witness, Michael Nolasco, conducted on January
19, 2002, who witnessed the shooting and saw the shooter flee in an SUV. It is not
clear how Nolasco's statement contradicts the state’s case. Troy Ankrum, a bouncer,
testified at trial that the shooter and others fled in an SUV. (Tr. Vol. VIII at 1250.)
Furthermore, during his testimony, Conway admitted fleeing the scene in a vehicle.
(Tr. Vol. XIII at 1250.) Thus, Nolasco's statement appears consistent with the
state’s case.
{¶ 47} Fourth, Conway cites to the evidence discussed in the previous assignment
of error pertaining to his first attorney, Christopher Cicero, and asserts that this
evidence was suppressed by the state. Conway does not explain how any of the
evidence concerning Cicero was impeachable or exculpatory. For the reasons
previously discussed, Cicero’s statements were far from exculpatory, and because
the state never actually called Cicero as a witness, they could not have been used
to impeach him.
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{¶ 48} For the foregoing reasons, the trial court did not err when it dismissed the
fourth ground for relief in Conway’s petition. Accordingly, the fourth assignment
of error is overruled.
State v. Conway, No. 17AP-90, 2019 WL 480342, *7-10 (Feb. 7, 2019).
The allegations forming the basis of the Brady claim asserted in the Third Amended
Petition as Petitioner’s Eighteenth Claim for Relief are nearly identical to the allegations raised
in the successive state postconviction petition. It is evident from a comparison of the two Brady
claims that Petitioner presented both the factual and legal basis of his federal constitutional claim
to the state courts. Accordingly, the Court agrees with Respondent that Petitioner’s Brady claim
is exhausted for purposes of habeas corpus review. Further, the Court finds that the Third
Amended Petition does not constitute a mixed petition and therefore a stay of the proceedings is
inappropriate.
The Court rejects Petitioner’s argument that Bethel expands the scope of remedies
available to him and therefore justifies a stay of these proceedings so that he may return to state
court in order to litigate not only his Brady claim, but his trial counsel ineffectiveness claims, as
well as his claims regarding Attorney Cicero’s conflict of interest. Bethel considered when a
trial court has subject matter jurisdiction to entertain a successive postconviction petition in the
limited context where the state is alleged to have withheld material evidence from the accused.
With respect to untimely Criminal Rule 33 motions for leave to file a motion for a new trial,
Bethel made clear that a “reasonable time” filing requirement is not contained within that Rule.
Perhaps this may present a “more viable” course of action than was previously thought available,
but the hypothetical feasibility of filing such a motion does not mandate a stay of federal habeas
proceedings when the essential factual and legal basis of Petitioner’s claims have already been
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presented to the state courts. For purposes of exhaustion, it is not necessary for Petitioner to
present the same claim for relief in postconviction and a motion for leave to file a motion for a
new trial, because “[w]here several alternative State remedies are available to a defendant,
exhaustion of one of those alternatives on a particular issue is all that is necessary. Section 2254
does not require repetitious applications to State courts for relief.” Keener v. Ridenour, 594 F.2d
581, 584 (6th Cir. 1979) (citing Brown v. Allen, 344 U.S. 443, 73 (1953)). See also O’Sullivan v.
Boerckel, 526 U.S. 838, 844 (1999) (finding that “[a]lthough [the language of § 2254] could be
read to effectively foreclose habeas review by requiring a state prisoner to invoke any possible
avenue of state court review, we have never interpreted the exhaustion requirement in such a
restrictive fashion” and “we have not interpreted the exhaustion doctrine to require prisoners to
file repetitive petitions”); Francisco v. Gathright, 419 U.S. 59, 62-63 (1974) (holding that when
a petitioner has previously exhausted his state remedies, the petitioner is not required to reexhaust state remedies due to a change in state law); Roberts v. LaVallee, 389 U.S. 40, 42 (1967)
(finding “Congress had not intended to require repetitious applications to state courts”). In sum,
Bethel does not render Petitioner’s previously exhausted claims unexhausted.
Accordingly, the Court DENIES Petitioner’s motion to stay (ECF No. 226.) Because the
Court has denied Petitioner’s motion to stay the proceedings, the Court also DENIES the motion
requesting authorization for his federal habeas counsel to represent him in state court in
connection with the filing of another successive postconviction petition or a motion for leave to
file a motion for a new trial. The Court GRANTS Petitioner’s request for an extension of time
to file the Traverse. The Traverse shall be filed within 30 days of the date of this Opinion and
Order.
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D. Procedural Default
As an additional matter, the issue of exhaustion is separate from the issue of procedural
default. In the Sixth Circuit, a district court must undertake a four-part analysis when the state
argues that a federal habeas claim is waived by the petitioner’s failure to observe a state
procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “First, the court must
decide that there is a state procedural rule that is applicable to the petitioner’s claim and that the
petitioner failed to comply with the rule.” Id. Second, the court must determine whether the
state courts actually enforced the state procedural sanction. Id. Third, it must be decided
whether the state procedural forfeiture is an adequate and independent state ground upon which
the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the court
has determined that a petitioner did not comply with a state procedural rule, and that the rule was
an adequate and independent state ground, then the petitioner must demonstrate that there was
cause for him not to follow the procedural rule, and that he was actually prejudiced by the
alleged constitutional error. Id.
Bethel arguably implicates the third prong of the Maupin test. The United States
Supreme Court recently reiterated that “[t]his Court will not take up a question of federal law in
a case ‘if the decision of the state court rests on a state law ground that is independent of the
federal question and adequate to support the judgement.’” Cruz v. Arizona, 598 U.S. ___
(2023), 2023 WL 2144416, *5 (Feb. 22, 2023) (quoting Lee v. Kemna, 534 U.S. 362, 375
(2002)) (emphasis in original). After Bethel, this Court questions whether the § 2953.23(A)(1)
gatekeeping provisions governing untimely or successive postconviction petitions are
independent of federal law when applied to Brady claims. As discussed above, the Ohio
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Supreme Court recognized that lower courts have construed the successive postconviction statute
and Criminal Rule 33 inconsistently or incorrectly as applied to Brady claims. The Ohio
Supreme Court determined that the question of whether Bethel could satisfy the “no reasonable
fact-finder” prong of § 2953.23(A)(1)(b) “goes to the heart of Brady’s third prong . . . .” Id.
(quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)). By interpreting O.R.C. § 2953.23
coextensively with Brady, the state procedural rule appears to rely on and be inextricably
interwoven with federal law. See Ake v. Oklahoma, 470 U.S. 68, 75 (1985) (when resolution of
the state procedural law question depends on a federal constitutional ruling, the state law prong
of the court’s holding is not independent of federal law and jurisdiction is not precluded).
The Court notes, however, that even if the state rule of procedure is an adequate and
independent basis to enforce procedural default, this Court must necessarily still review the
merits of Petitioner’s Brady claim without the limitations imposed by 28 U.S.C. § 2254(d), in
order to determine whether cause and prejudice exists to excuse any default. See Strickler v.
Greene, 527 U.S. 263 (1999). See also Hughbanks v. Hudson, 2 F.4th 527, 535-36 (6th Cir.
2021) (reiterating that de novo review of a procedurally defaulted Brady claim is necessary in
order to determine whether cause and prejudice exist to excuse the default and noting
“if Hughbanks can demonstrate a meritorious Brady violation, he will have also made the
requisite showing of cause and prejudice, allowing us to grant habeas relief.”)
III.

CONCLUSION
For the foregoing reasons, the Court hereby DENIES Petitioner’s motion to stay and to

authorize his habeas counsel to represent him in connection with state court successive
postconviction proceedings. (ECF No. 226.) The Court GRANTS Petitioner’s request for an
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extension of time to file the Traverse. The Traverse shall be filed within 30 days of the date of
this Opinion and Order.
IT IS SO ORDERED.
_________________________________________
ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE
DATED: March 15, 2023

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