Bethel v. Warden Ohio State Penitentiary

Filing 106

SUPPLEMENTAL OPINION ON PETITIONER'S MOTION FOR AN EVIDENTIARY HEARING signed by Magistrate Judge Michael R. Merz on 7/27/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
ROBERT BETHEL,
:
Petitioner,

Case No. 2:10-cv-391
:

District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

-vsDAVID BOBBY, Warden,
:
Respondent.

SUPPLEMENTAL OPINION ON PETITIONER’S MOTION FOR AN
EVIDENTIARY HEARING
This capital habeas corpus case is before the Court on Petitioner=s Objections (ECF No.
100) to the Magistrate Judge’s Decision and Order denying an evidentiary hearing on Mr.
Bethel’s Fifteenth Ground for Relief (the “Decision,” ECF No. 96)(reported at Bethel v. Bobby,
2017 U.S. Dist. LEXIS 65856 (S.D. Ohio May 1, 2017)). District Judge Barrett has recommitted
the matter for a supplemental opinion on the question whether to grant an evidentiary hearing
(ECF No. 103).
In the Decision, the Magistrate Judge concluded that the Ohio courts’ rejection of
Bethel’s claim under Brady v. Maryland, 373 U.S. 83 (1963), was neither an objectively
unreasonable application of Supreme Court precedent nor a decision based on an unreasonable
determination of the facts. The decision was therefore found to be entitled to AEDPA deference
under both 28 U.S.C. § 2254(d)(1) and (d)(2). The Magistrate Judge also concluded the Brady
claim was procedurally defaulted.

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Standard of Review

A motion for an evidentiary hearing in a habeas corpus case is a non-dispositive pre-trial
matter on which an assigned Magistrate Judge has authority to enter a decision and that is what
was done here. 28 U.S.C. § 636(b)(1)(B).1
The standard of review of nondispositive matters is clearly erroneous as to factual
findings and contrary to law as to legal conclusions. United States v. Curtis, 237 F.3d 598, 603
(6th Cir. 2001), citing United States v. Raddatz, 447 U.S. 667, 673 (1980).

Procedural History

James Reynolds and Shannon Hawks were shot to death with a 9 mm firearm sometime
before June 26, 1996, when their bodies were discovered in a field near Columbus, Ohio. In
November 2000, Bethel was indicted for the murders. In August 2001 in return for agreement to
drop the capital specifications, Bethel agreed to cooperate and provide truthful testimony.
Pursuant to that agreement, Bethel made a proffer in which he admitted the shooting. Then on
November 13, 2001, he refused to testify against Jeremy Chavis and the court vacated the plea
agreement on the State’s motion. At trial in June 2003 the jury heard Bethel’s admissions made
during the proffer, found him guilty on all counts and specifications, and recommended a death
sentence which the court imposed on August 2, 2003.
The conviction was affirmed on direct appeal. State v. Bethel, 110 Ohio St. 3d 416
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Petitioner’s request that the District Judge “should overrule the Magistrate Judge’s Report and Recommendations”
(ECF No. 100, PageID 8593) mischaracterizes the status of the case.

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(2006). While the direct appeal was pending, Bethel filed for post-conviction relief under Ohio
Revised Code § 2953.21 which the Franklin County Common Pleas Court denied August 31,
2007. The Tenth District affirmed and the Ohio Supreme Court declined jurisdiction. That court
also denied a motion to reopen for ineffective assistance of appellate counsel.
On April 13, 2009, Bethel moved for leave to file a delayed motion for new trial which
Judge Frye denied September 3, 2009. That decision was affirmed on appeal and the Ohio
Supreme Court again declined jurisdiction. Bethel sought leave to proceed in forma pauperis on
his habeas petition in this Court April 30, 2010.
On August 30, 2013, Bethel sought leave to conduct discovery on his Fifteenth and
Eighteenth Grounds for Relief (ECF No. 60). The Magistrate Judge denied that Motion on
December 23, 2013 (ECF No. 69). District Judge Barrett overruled Petitioner’s Objection on
September 16, 2016 (ECF No. 85). Petitioner then filed the instant Motion for Evidentiary
Hearing December 30, 2016 (ECF No. 88).

Analysis

In his Motion for Discovery, Bethel sought mostly records and deposition testimony
related to his Fifteenth Ground for Relief, e.g., depositions of Donald Langbein, Shannon
Williams, and ATF Agent Ozbolt. Ground 15 reads:
Fifteenth Ground for Relief: Bethel was denied due process and
a fair trial under the Sixth and Fourteenth Amendments when the
State failed for provide him with favorable evidence that was
material to his defense.

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(Amended Petition, Doc. No. 48, PageID 650.) In denying the Motion for Discovery, the
Magistrate Judge relied heavily on Judge Frye’s opinion denying the motion for new trial. He
found that Bethel had not been diligent in discovering the Ozbolt report or in presenting his
motion. On the merits of the Brady claim, he found “there was no evidence the Ozbolt Report
was either intentionally or negligently suppressed by the Columbus Police.” (ECF No. 11-2,
PageID 206.) He also concluded the Report was not material:
The ATF Report could not have been direct, substantive evidence.
At most, it would have provided some slight additional basis for
vigorous cross-examination of Langbein. It did not plainly
contradict what he said because of the factual variances between
the murder he described and this case. It was not good
impeachment material because of the layers of hearsay in it. But,
the more important point is that Bethel's trial lawyers already had
every incentive to portray Langbein as an untrustworthy felon who
cooperated with police only to benefit himself by wearing a wire
and coaxing Bethel to make incriminating statements. No new
avenue was suggested by the ATF Report on how to convincingly
attack Langbein.
Langbein's alleged jailhouse statement to Williams occurred more
or less contemporaneously with the taped statements by Bethel.
Events in that time period already were a key focus of Bethel's
trial. Nothing in the ATF Report negates Bethel's own statements
made in his proffer or made to Campbell, in which he
unequivocally admitted killing Reynolds and Hawks with a 9 mm
handgun. As mentioned above, closely viewed Langbein's alleged
statement described a substantially different murder, albeit
possibly also involving Bethel's co-defendant Chavis as the driver.
Bethel's trial involved two victims - one shot ten times, the other
shot four times. The crime Langbein allegedly described to
Williams involved one victim shot seventeen times. Bethel was the
driver of the victims in this case, not Chavis. 110 Ohio St.3d at
418, ¶¶ 8, 43.
Considering the entire record, including Bethel's own statements
admitting to killing Reynolds and Hawks and the material variance
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between the alleged crime memorialized in the ATF Report and the
crimes as they occurred here, a new trial for Bethel would not be
appropriate. The court's confidence in the outcome of defendant
Bethel's trial has not been undermined.
Id. at PageID 206-07.
The Magistrate Judge found that the premise of the Motion for Discovery was that the
Ozbolt Report was Brady material and that premise was undermined by the Ohio courts’ decision
that it was not, a conclusion entitled to AEDPA deference (ECF No. 69, PageID 8303). The
Magistrate Judge also accepted Judge Frye’s conclusion that the Ozbolt Report, as a federal law
enforcement report, only came into the possession of the Columbus police when someone sent it
to them between November 2000 and November 2008. Id. The District Court overruled two sets
of Objections to the Magistrate Judge’s decision on discovery (ECF No. 85).
Petitioner’s Motion for Evidentiary Hearing seeks to litigate his Fifteenth Ground for
Relief by eliciting testimony from attorneys Ronald Janes, Joseph Edwards, Dane Chavers,
Frederick Benton, and Kirk McVay who all represented Bethel at one time or another during the
trial phase of the case, ATF Special Agent Ozbolt, former Franklin County assistant prosecutors
David Devillers and Gregory Peterson who tried the case on behalf of the State, Shannon
Williams (the course of the information in the Ozbolt Report) and Donald Langbein (Motion,
ECF No. 88, PageID 8473-74). The balance of the Memorandum in Support basically argues the
merits of Bethel’s Brady claim.
In denying the Motion for Evidentiary Hearing, the Magistrate Judge essentially followed
his prior conclusion in the Motion for Discovery: because the state court decisions on the motion
for new trial decided the relevant federal question – is the Ozbolt Report Brady material? – in a
manner that was neither contrary to nor an objectively unreasonable applications of Supreme
Court precedent and did not constitute an unreasonable determination of the facts, an evidentiary
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hearing was precluded by 28 U.S.C. § 2254(e)(2) and Cullen v. Pinholster, 563 U.S. 170 (2011).
The Objections begin, as is often the case in brief writing, with a very short narrative of
the “facts,” construed as Petitioner wants them construed (ECF No. 100, PageID 8593). By
Petitioner’s summary account, a “key prosecution witness Donald Langbein” made a statement
to an informant, Shannon Williams, which inculpated Langbein and exculpated Bethel.
Williams passed that information on to ATF agent Daniel Ozbolt who put it in a report that he
gave to the Columbus Police who then put it in their file on Bethel’s case but never gave it to
Bethel. Since the Ozbolt report is impeaching of Langbein and exculpatory of Bethel, it is
obviously Brady material and Bethel is entitled to relief. That is the essence of Petitioner’s
argument, but it ignores a host of underlying historical facts found by the Ohio courts and not
shown to be incorrect in Bethel’s motion or objections.
Bethel begins by complaining that the Decision considered the initial Ohio evaluation of
the Ozbolt report, Franklin County Common Pleas Judge Richard Frye’s denial of Bethel’s
motion for new trial, rather than the ultimate decision of the Tenth District (ECF No. 100,
PageID 8594). The Decision considers both. Petitioner is correct that the ultimate state court
decision to be evaluated under 28 U.S.C. §§ 2254(d)(1) and (d)(2) is the last reasoned state court
decision. Ylst v. Nunnemaker, 501 U.S. 797 (1991). But where, as here, the appellate court
decision is heavily dependent on trial court findings, the reasonableness of the appellate decision
depends on how reasonable its assessment is of what the trial court did. Ohio courts of appeals
very rarely hear evidence independent of what appears in the record on appeal and the Tenth
District here relied entirely on the record made before Judge Frye.
Bethel continues by complaining that the Magistrate Judge “did not address Bethel’s
challenges to the way the state court applied [Supreme Court] law.” (ECF No. 100, PageID

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8595.) As a principal example, Bethel complains that “the state court refused to acknowledge
the materiality of the impeaching evidence . . . and essentially relied upon a sufficiency-of-theevidence test in its materiality determination.” Id. Judge Frye did nothing of the kind. He noted
that Bethel’s trial lawyers had every incentive to portray Langbein as an “untrustworthy felon”
who wore a wire and coaxed Bethel to make incriminating statements (Decision, ECF No. 96,
citing Judge Frye’s decision, ECF No. 11-2, PageID 206). Moreover in making the materiality
determination, Judge Frye expressly weighed whatever value the Ozbolt Report might have had
against Bethel’s own admission of guilt in the proffer he made2 and to his girlfriend (Decision,
ECF No. 96, PageID 8539, citing Judge Frye’s decision at PageID 207). That is simply not the
equivalent of applying a “sufficiency-of-the-evidence” test.
Petitioner lists ten cases3 which he says were unreasonably applied by “the state court,”
then complains the Magistrate Judge did not “address[ ] any of the ways in which the state court
unreasonably applied clearly established federal law. . .” (ECF No. 100, PageID 8596). But then
he asserts he is not questioning the materiality decision of the Tenth District because that court
“never made that finding.” (ECF No. 100, PageID 8596, emphasis sic.) To the contrary, the
Tenth District cites standards from the relevant Supreme Court case law and then writes seven
paragraphs addressing the evidence before Judge Frye in light of those standards. State v. Bethel,
2010-Ohio-3837, ¶¶ 18-24, 2010 Ohio App. LEXIS 3242 (10th Dist. Aug. 17, 2010). Bethel has
failed to show that decision was “objectively unreasonable beyond the possibility of fairminded
disagreement.” (Decision, ECF No. 96, PageID 8539, citing standard from White v. Woodall,
supra.)
Bethel faults the Magistrate Judge for an incorrect finding that the Ozbolt Report would
2 Mr. Bethel made a proffer as part of an expected plea bargain. He later recanted, but the jury heard the admission.
3 Two of these are circuit opinions and thus do not “count” as the relevant clearly established federal law which consists only of holdings of the Supreme Court. White v. Woodall,
572 U. S. ___, ___, 134 S. Ct. 1697, 1702, 188 L. Ed. 2d 698, 704 (2014).

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have been inadmissible hearsay. That is not what the Decision says. Since the Ozbolt Report
records a statement by Williams to Ozbolt of what Langbein said to Williams, the Decision
concluded it was “double hearsay as to anything Langbein said.” (ECF No. 96, PageID 8539.)
This is in the context of the materiality discussion. There is no ruling that the Ozbolt Report was
“inadmissible” and Bethel’s arguments that it is are a red herring. The Decision is not concerned
about whether the Ozbolt Report could be admitted, but about the lack of reliability of hearsay,
an appropriate consideration in deciding whether the Ozbolt Report is material.
Bethel objects to the Magistrate Judge’s conclusion that the Ozbolt Report was not
“suppressed.” (Objections ECF No. 100, PageID 8604.) He asserts “[i]t was clearly erroneous
for the Magistrate Judge to find that the State did not suppress the evidence, in light of the
record.” Id. To prove “suppression,” Bethel relies on an admission in the State’s Response to the
Motion for New Trial in which the State admitted it did not turn over the Ozbolt Report in
discovery at the time of trial. Id. But in addition to that admission, there is also the fact that the
Ozbolt Report was a report in the files of a federal investigative agency and the prosecutors had
no duty or even ability to search federal law enforcement files for Brady material. As both state
courts also found, the Ozbolt Report was eventually obtained in 2008 from the co-defendant’s
file and it does not have Bethel’s name in it. Bethel’s Objections give no deference at all to
either Judge Frye’s role as a fact finder or to that of the Magistrate Judge. Per Bethel’s
argument, any conclusion that does not agree with his version of the facts is “clearly erroneous.”
Bethel objects that “[w]hat constitutes ‘suppression’ is easily ascertained by [sic]
Supreme Court case law. It is contrary to law to conclude that ‘failure to disclose evidence’ is
not the equivalent to [sic] ‘suppression’. . . Id. at PageID 8606. The case law cited by Bethel is
Banks v. Dretke, 540 U.S. 668 (2004), and Strickler v. Greene, 527 U.S. 263 (1999). In Banks it

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was conceded that the State knew one of its witnesses was an informant but failed to disclose
that information, as well as permitting him to testify falsely.

Banks does not define

“suppression” to include failure to disclose information in the hands of a different sovereign. In
Strickler the unproduced evidence in question was in the hands of the police working on the
case, even if not known to the prosecutor. 527 U.S. at 280-81. But Ozbolt was not working on
the Bethel case with the Franklin County Prosecutor and there is no proof cited by Bethel of
when he provided his report to the Columbus Police.
Bethel also objects to the Magistrate Judge’s conclusion on the issue of procedural
default (Objections, ECF No. 100, PageID 8611, et seq.)
As Judge Frye noted in his decision on the motion for new trial, Ohio law places a very
strict time limit on motions for a new trial; motions filed after the time limit face an additional
barrier of showing good cause for the delay and due diligence in pursuing the claim. Judge Frye
found both that Bethel had not shown why he waited so long to have the public records request
made on his behalf and also why he waited from November 2008 to April 2009 to file the motion
after he obtained the Ozbolt Report (Frye Decision, ECF No. 11-2, PageID 203-206). He
expressly concluded that Bethel had procedurally defaulted his Brady claim. Id. at PageID 205.
Applying controlling Sixth Circuit procedural default analysis, the Magistrate Judge
found Judge Frye’s conclusion was correct (ECF No. 96, PageID 8545). Bethel objects that the
Tenth District did not enforce this procedural default (Objections, ECF No. 100, PageID 861112).
In the appeal from Judge Frye’s denial of a new trial, the Tenth District had before it two
assignments of error, one claiming Judge Frye should have allowed the motion for new trial to be

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filed and a second claiming he should have granted the motion for new trial.4 Because it found
no merit to the second assignment of error, it found the first to be moot. Id. at ¶ 16.
Bethel argues there is no procedural default because the Tenth District did not enforce
Judge Frye’s finding that Bethel did not exercise due diligence in obtaining the Ozbolt Report
(Objections, ECF No. 100, PageID 8611, relying on Harris v. Reed, 489 U.S. 255 (1989)). He
accuses the Magistrate Judge of “second-guessing the findings of the Ohio Court of Appeals by
disregarding them in favor of the trial court’s findings.” Id. at PageID 8612. The Decision on
this point does not “disregard” any “finding” of the Tenth District. The Tenth District did not
make a finding on Bethel’s due diligence, but found the relevant assignment of error moot. State
v. Bethel, supra, at ¶ 16. But the Decision does not purport to rely on any finding of the Tenth
District on this point. Instead, it notes that “Ohio plainly has a relevant procedural rule placing
strict time limits on motions for new trial which Judge Frye enforced against Bethel.” Bethel is
correct that that ruling was not affirmed by the Tenth District. Rather the assignment of error
related to that ruling was found moot.
Thus Judge Frye’s decision is the last reasoned decision on the procedural default issue.
Where there has been one reasoned state court judgment rejecting a federal claim, there is a
rebuttable presumption that later unexplained orders upholding the judgment or rejecting the
same claim rest on the same ground. Ylst v. Nunnemaker, 501 U.S. 797 (1991). The Tenth
District’s decision upholds Judge Frye’s judgment on this ground without deciding whether it
was error to refuse to allow the filing of the delayed motion for new trial. Harris v. Reed does
not preclude a finding that the state procedural rule was actually enforced where the state court
decision also relies on an alternative ground. Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000);

4 As the Tenth Disttrict explained , Ohio practice requires leave to file a motion for new trial based on newly-disocvered evidence if the motion is tendered more than 120 days
after verdict.. State v. Bethel, 2010 Ohio App. LEXIS 3242 ¶ 13 (10th Dist. Aug. 17, 2010).

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McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). Although a state court discusses the
merits of a claim in the alternative, there can still be procedural default if the state court rules on
the procedural ground. Coe v. Bell, 161 F.3d 320, 330 (6th Cir. 1998), cert. denied, 120 S. Ct. 110
(1999).
Bethel also objects to the actual finding of procedural default through lack of due
diligence (Objections, ECF No. 100, PageID 8613-15). He says he was “clearly prevented from
discovery of the evidence within 120 days of the verdict, since he did not received the public
records until November 4, 2008.” (Objections, ECF No. 100, PageID 8613.) This statement
completely begs the question of when he first sought the records. Judge Frye asks the question,
which the Magistrate Judge repeats, why did it take so long to hire Martin Yant and to make the
public records request? That question is unanswered.
Bethel notes that State ex rel Steckman v. Jackson, 70 Ohio St. 3d 420 (1994), prevented
use of public records requests to obtain documents like this until it was “recently amended” in
State ex rel. Caster v. Columbus, 2016-Ohio-8394 (2016). If Steckman was still the law until
2016, how did the public records request succeed in 2008? If it succeeded in 2008, why not five
years earlier, right after trial?

Bethel even asserts “[b]efore Caster, the Columbus Police

Department’s file was not subject to release,” but it was in fact released more than eight years
before Caster was decided.
Finally, Bethel argues that his delay in filing for 160 days after he received the Ozbolt
Report was not unreasonable. Since the usual rule is that motions for new trial must be filed
within 120 days of verdict, how can it be said that a finding that 160 days is unreasonable is
somehow clearly erroneous or an abuse of discretion?

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Conclusion

Bethel’s Objections to the Decision denying an evidentiary hearing are without merit and
should be overruled.

July 27, 2017.
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. 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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