Bethel v. Warden Ohio State Penitentiary

Filing 118

ORDER OVERRULING in PART and SUSTAINING in PART 96 Opinion and 106 Supplemental Opinion and are modified in a manner not inconsistent with this Order. Signed by Judge Michael R. Barrett on 3/28/18. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Robert Bethel,
Petitioner,
Case No.: 2:10-cv-391
v.
Judge Michael R. Barrett
David Bobby, Warden
Respondent.
OPINION & ORDER
This matter is before the Court on the Magistrate Judge’s May 1, 2017 Decision
and Order denying Petitioner’s Motion for an Evidentiary Hearing. (Doc. 96). Petitioner
filed objections to the Decision and Order (Doc. 100); and the Warden filed a response
to Petitioner’s objections (Doc. 101). This Court then recommitted the matter for a
supplemental opinion, which the Magistrate Judge entered on July 27, 2017. (Doc.
106). Petitioner filed objections to the Magistrate Judge’s Supplemental Opinion. (Doc.
111).
For the reasons stated below, the Court OVERRULES in PART and SUSTAINS
in PART Petitioner’s Objections to the Magistrate Judge’s May 1, 2017 Decision and
Order and July 27, 2017 Supplemental Opinion.
I. BACKGROUND
This is a capital habeas petition brought pursuant to 28 U.S.C. § 2254. In 2003,
Petitioner was found guilty of murdering James Reynold and Shannon Hawks. The
Magistrate Judge has set forth the factual background and the procedural history of

Petitioner’s claims. (See Doc. 106, PAGEID #8647-8652). The Court will not repeat the
same here, except to the extent necessary to address Petitioner’s objections.
Petitioner filed a Motion for an Evidentiary Hearing on his Fifteenth Ground for
relief. In his Fifteenth Ground, Petitioner claims that he “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.” This claim is centered on
a report obtained by a private investigator following a public records request on the
Columbus Police “for any and all records in the possession of the Columbus Division of
Police concerning Robert Bethel’s case.” (Doc. 55-7, PAGEID #4610). This report was
authored by Daniel Ozbolt, a Alcohol, Tobacco, and Firearms (“ATF”) Special Agent. In
Petitioner’s state court proceedings, the Franklin County Court of Appeals explained:
In the report entitled “CHAVIS, Jeremy,” Agent Ozbolt indicates he was
contacted by Shannon Williams (“Williams”), an inmate at the Franklin
County Jail. According to the report, Williams stated fellow inmate
Langbein told Williams that “he was involved in a homicide with an
individual who is now incarcerated at the Federal Penn., Ashland, KY,
where the victim was shot seventeen times” and that “the other individual
who was arrested was the driver following the homicide.” Williams stated
he knew of no other details, but would “keep his ears open for further
information.” Because Chavis was incarcerated in the federal prison in
Kentucky at this time, appellant contends this statement amounts to a
“confession” that Langbein, not appellant, was the person who committed
the murders with Chavis.
(Doc. 11- 4, PAGEID #238).
Petitioner claims that the Ozbolt report should have been disclosed to his trial
attorneys under Brady v. Maryland, 373 U.S. 83 (1963). The Ozbolt report was the
basis of a previous Motion for Discovery, which the Magistrate Judge denied. (Docs.
69, 85). The denial of that Motion and the current Motion for an Evidentiary Hearing
rest on the Ohio courts’ rejection of Petitioner’s Brady claim. In denying the Motion for

2

an Evidentiary Hearing, the Magistrate Judge explained that the Ohio courts’ decision
that the Ozbolt report was not Brady material was entitled to AEDPA deference.
Accordingly, the Magistrate Judge in both that decision and the decision on the Motion
for Evidentiary Hearing analyzed whether the state court judgment “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States” or
“resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).
The Magistrate Judge concluded that the Ohio courts’ decision was neither an
unreasonable application of clearly established federal law, nor an unreasonable
determination of the facts. The Magistrate Judge also found that based on the Ohio
courts’ denial of Petitioner’s Motion for New Trial Based on Newly Discovered Evidence,
Petitioner’s Brady claim was procedurally defaulted and his Fifteenth Ground should
eventually be dismissed.
II. ANALYSIS
A. Applicable standards
This Court shall consider objections to a magistrate judge's order on a
nondispositive matter and “shall modify or set aside any portion of the magistrate
judge's order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a). “A
finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a mistake
has been committed.”

United States v. Mabry, 518 F.3d 442, 449 (6th Cir.2008)

3

(quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525,
92 L.Ed. 746 (1948)).
The Supreme Court has explained that in deciding whether to grant an
evidentiary hearing:
a federal court must consider whether such a hearing could enable an
applicant to prove the petition’s factual allegations, which, if true, would
entitle the applicant to federal habeas relief. Mayes v. Gibson, 210 F.3d
1284, 1287 (10th Cir. 2000)).
Because the deferential standards
prescribed by § 2254 control whether to grant habeas relief, a federal
court must take into account those standards in deciding whether an
evidentiary hearing is appropriate. See id., at 1287–1288 (“Whether [an
applicant's] allegations, if proven, would entitle him to habeas relief is a
question governed by [AEDPA]”).
It follows that if the record refutes the applicant's factual allegations or
otherwise precludes habeas relief, a district court is not required to hold an
evidentiary hearing.
Schriro v. Landrigan, 550 U.S. 465, 474, 127 S. Ct. 1933, 1940, 167 L. Ed. 2d 836
(2007) (footnote omitted).
B. Brady claim
Under its analysis of whether the Ohio courts’ decision was an unreasonable
application of clearly established federal law, the Magistrate Judge noted that a critical
question with any Brady claim is materiality. 1
Petitioner argues that the state court ignored the materiality of the evidence and
instead relied upon a “sufficiency-of-the-evidence test” in its materiality determination.
However, as the Sixth Circuit has explained: “The materiality of Brady evidence

1

A claim under Brady requires a three-part showing: (1) that the evidence in question be
favorable; (2) that the state suppressed the relevant evidence, either purposefully or
inadvertently; (3) and that the state's actions resulted in prejudice.” Bell v. Bell, 512 F.3d 223,
231 (6th Cir. 2008) (citing Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144
L.Ed.2d 286 (1999)). Prejudice can be demonstrated by showing that the suppressed evidence
is “material.” Eakes v. Sexton, 592 F. App'x 422, 427 (6th Cir. 2014).
4

depends almost entirely on the value of the undisclosed evidence relative to the other
evidence produced by the state.” Eakes v. Sexton, 592 F. App'x 422, 427-28 (6th Cir.
2014) (citing United States v. Sipe, 388 F.3d 471, 478 (5th Cir. 2004)). Therefore, the
materiality analysis necessarily involves weighing the value of the undisclosed evidence
against other evidence produced by the state.
Petitioner explains that Langbein was a key witness for the prosecution at his trial
and the Ozbolt report is both exculpatory and impeaching.
The Franklin County Court of Appeals explained that “most importantly,” the
evidence against Petitioner consisted more than just the Ozbolt Report: “The evidence
also consisted of appellant's statements to Campbell and his own admission as
contained in his proffer.”

(Doc. 11-4, PAGED ID #243).

These “statements to

Campbell” are a reference to the trial testimony of Theresa Cobb Campbell, who was
Petitioner’s girlfriend at the time of the murders.

(Doc. 11-4, PAGEID #237). The

Franklin County Court of Appeals explained that Campbell’s testimony was that after the
murders, she and Petitioner had a conversation at her mother's house in which
Petitioner told her he killed Reynolds and Hawks:
He said that [he], Jeremy, and these two people went to go practice
shooting guns. And he said when they got there, he said that he had a
feeling to shoot, and he said, “So I did.”
And he said that he called Jeremy to come and look to see what he had
done, and he said that Jeremy went, and he started crying.
And then he said that he reloaded and - the clip and fired.
(Doc. 11-4, PAGEID #237).
The “own admission” referenced by the Franklin County Court of Appeals is a
proffer made by Petitioner in which he admitted to the shooting. In 2001, Petitioner

5

entered into a plea agreement in which he agreed to cooperate and provide truthful
testimony, and in return the state would drop the capital specifications.

However,

Petitioner later refused to testify against Jeremy Chavis, and the plea agreement was
vacated.

The proffer was introduced at trial and was summarized by the Franklin

County Court of Appeals as follows:
According to the proffer, killing Reynolds had been Chavis's idea, and
before the murders, appellant and Chavis discussed what they were going
to do. Appellant stated he and Chavis drove Reynolds and Hawks to a
field belonging to Chavis's grandfather to do some shooting. After walking
to a clearing, appellant, using a 9mm handgun, and Chavis, using a
shotgun, fired at Reynolds and Hawks who were standing together;
Reynolds with his arm around Hawks. Specifically, appellant stated that
after the couple fell to the ground, he wanted to leave, but Chavis handed
appellant another loaded clip and indicated he wanted to make sure the
couple was dead. Appellant explained that he then emptied the other clip
into the bodies at close range. After the shooting, appellant drove to an
alley where he threw his shirt into a dumpster, and then the pair drove to a
body of water where Chavis separated the barrel from the shotgun and
disposed of it in the body of water. Appellant described that he and
Chavis proceeded to Chavis's house where they changed clothes and
threw their clothes in a dumpster.
(Doc. 11-4, PAGEID #236).
Turning to the Oxbolt report as impeachment evidence, impeachment evidence is
material if the evidence “would seriously undermine the testimony of a key witness on
an essential issue or there is no strong corroboration.” Eakes v. Sexton, 592 F. App'x
422, 427-28 (6th Cir. 2014) (citing United States v. Sipe, 388 F.3d 471, 478 (5th Cir.
2004)). The Franklin County Court of Appeals explained the Oxbolt report was not
material impeachment evidence:
Langbein was extensively cross-examined at trial, wherein defense
counsel tried to portray Langbein as one implicating appellant only to get a
better deal on his federal firearms charge. Langbein was also questioned
about having a grudge against appellant and being one of the persons
involved in the planning of Reynolds' murder. Additionally, Langbein was

6

questioned about a confrontation between Reynolds and another
individual, Joey Green, in which Green threatened Reynolds causing
Reynolds to expose a gun to Green. Thus, Langbein's cross-examination
inferred that others, or even he, was the person who committed the
homicides.
Lastly, we note the ATF report indicates that Langbein stated he was
"involved" in a homicide. Assuming Langbein was referring to the
Reynolds-Hawks murders, Langbein's statement still does not amount to a
"confession" of murder as appellant claims. Langbein was involved in this
matter as he had been working as an informant with auhoritities as early
as July 2000. Langbein even wore a wire on several occasions in an
attempt to obtain incriminating statements from appellant, and all of these
meetings occurred prior to Williams contacting Agent Ozbolt on November
9, 2000.
(Doc. 11-4, PAGEID #243-44).
Based on this other evidence in the record, the Magistrate Judge found that the
Ohio courts’ finding that the Oxbolt report was not material was not an unreasonable
application of clearly established federal law. On this point, the Court finds that the
Magistrate Judge’s order was not clearly erroneous or contrary to law.
The Magistrate Judge also concluded that the Ohio courts’ decision on
Petitioner’s Brady claim was not an unreasonable determination of the facts.

The

Magistrate Judge concluded that the Ohio courts properly determined that the Oxbolt
report was not “suppressed.” This issue was addressed as an initial matter by the
Franklin County Court of Appeals, which explained:
Initially, we note it is not clear that the ATF report was "suppressed" by
either the prosecution or the Columbus police. As noted by the trial court,
there is no indication as to when this report, titled "CHAVIS, Jeremy" and
making no reference whatsoever to appellant, came into the possession of
the police department or when it was placed in connection with the file on
appellant.
However, assuming arguendo that the prosecution
"suppressed" the report within the meaning of Brady, we find no
reasonable probability of a different trial outcome had the defense
received this report. Thus, we find no Brady violation and further find that
appellant failed to meet the standard for a new trial.

7

(Doc. 11-4, PAGEID # 242).
As the Magistrate Judge explained, before the Ozbolt report was placed in
connection with the file on Petitioner, the Ozbolt report was in the files of a federal
investigative agency and the prosecutors had no duty or even ability to search those
files for Brady material. The problem – recognized by the Franklin County Court of
Appeal – is that the record is silent as to how and when the Ozbolt report made its way
from the federal agency to the prosecution or the Columbus police. Even if the Court
were to find that this conclusion is erroneous, the Court has already found that the Ohio
courts alternative finding – that the Ozbolt report is not material – was not erroneous.
Therefore, the Court finds that the Magistrate Judge’s order was not clearly erroneous
or contrary to law on this point.
Petitioner makes an additional argument regarding hearsay. The hearsay issue
stems from a statement by the Magistrate Judge that since the Ozbolt report records a
statement by Williams to Ozbolt of what Lanbein to Williams, the report was double
hearsay as to anything Langbein said. 2 (Doc. 96, PAGEID #8539). However, as the
Magistrate Judge explained, the hearsay observation is not an evidentiary ruling, but
instead is a consideration in deciding whether the Ozbolt report is material.
2

The trial court made the same observation in deciding Petitioner’s Brady claim:
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.

(Doc. 11-2, PAGEID #206)

8

Petitioner points to Sixth Circuit decisions where similar “double-hearsay”
statements were found to be sufficiently reliable Brady evidence as prior inconsistent
statements under Ohio Rule of Evidence 613, or as statements against interest under
Rule 804(B)(3). See, e.g., Bies v. Sheldon, 775 F.3d 386, 401 n.9 (6th Cir. 2014);
Gumm v. Mitchell, 775 F.3d 345, 369 (6th Cir. 2014). However, what is missing in this
case is the “corroborating circumstances” which would indicate the trustworthiness of
the statement. As the Franklin County Court of Appeals explained, there was other
evidence in the record which undermined the reliability of the Ozbolt report:
it is wholly speculative as to whether Langbein's statements are referring
to the homicides at issue here. Williams said Langbein stated he was
involved in a homicide where the victim was shot 17 times. Here, there
were two-victims; one shot ten times, and the other shot four times. Also,
Williams said Langbein stated the other person who was arrested was the
driver after the homicide; however, according to appellant, Chavis was not
a driver but an actual participant in the shootings. Appellant's version of
events, that he used a 9mm while Chavis used a shotgun, correlates with
the evidence presented at trial that the victims suffered wounds consistent
with those caused by a 9mm and a shotgun. Additionally, multiple 9mm
shell casings and 12-guage shotgun casings were recovered from the
scene.
(Doc. 11-4, PAGEID #243). Therefore, the Court finds that the Magistrate Judge’s order
was not clearly erroneous or contrary to law on this point.
C. Procedural default
Petitioner first presented his Brady claim to the Ohio courts in his Motion for New
Trial Based on Newly Discovered Evidence. Petitioner simultaneously filed a Motion for
Leave to File a Delayed Motion for New Trial because under Ohio Rule of Criminal
Procedure 33, a defendant must first obtain permission to file a motion for a new trial if
more than 120 days have elapsed since judgment. The state trial court concluded that
Petitioner had procedurally defaulted his claim. (Doc. 11-2, PAGEID #205). However,

9

the trial court also addressed the merits of Petitioner’s Brady claim.

(Doc. 11-2,

PAGEID #205) (“Even if this court ignored the procedural default and, at this late date,
considered the substantive argument for a new trial, Mr. Bethel has not convinced this
court a hearing is necessary before the request for a new trial is denied.”).
On appeal, the Franklin County Court of Appeals was presented with two
assignments of error: (1) the trial court should have allowed the motion for new trial to
be filed; and (2) the trial court should have granted the motion for new trial.

The

Franklin County Court of Appeals found no merit to the second assignment of error, and
therefore found the first assignment of error to be moot:
In his first assignment of error, appellant contends the trial court erred in
denying his motion for leave to file a motion for a new trial. However, as
we have already stated, the trial court addressed not only the motion for
leave to file a motion for new trial, but also the merits of the motion for new
trial based on newly discovered evidence. Because, as will be explained
infra, we affirm the trial court's judgment in this respect, appellant's first
assignment of error is moot. See State v. Brown, 7th Dist. No. 1O MA 17,
201O-Ohio-405.
(Doc. 11-4, PAGEID #241).
The Magistrate Judge relied upon Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct.
2590, 115 L.Ed.2d 706 (1991) to conclude that the trial court’s decision on the
procedural default issue was the last reasoned decision, and therefore the state courts
invoked the procedural bar. The Sixth Circuit has explained the application of Ylst as
follows:
To determine whether state courts have clearly and expressly invoked a
state procedural bar, a federal habeas court looks to the last state court to
be presented with the federal claim. Ylst v. Nunnemaker, 501 U.S. 797,
801, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Thus, even where a state
trial court or appellate court expressly invokes a state procedural bar,
federal habeas review may not be precluded if the state's highest court
instead reaches the merits of the claim without expressly ruling on the

10

procedural question. Id. However, where the last state-court judgment is
an “unexplained” order upholding a prior judgment or rejecting the same
claim, a federal court applies a presumption that gives the unexplained
judgment “no effect” and “simply ‘looks through’ ... to the last reasoned
decision.” Id. at 804, 111 S.Ct. 2590.
Stokes v. Scutt, 527 F. App'x 358, 364–65 (6th Cir. 2013). The Supreme Court in Ylst
defined the term “unexplained” order as “an order whose text or accompanying opinion
does not disclose the reason for the judgment.” 501 U.S. at 802.
This Court finds that the Franklin County Court of Appeals’ order is not
“unexplained.”

The language cited above makes clear that the appeals court

understood that the trial court found the Brady claim procedurally defaulted, but in the
alternative ruled on the merits of the Brady claim. The court then expressly decided to
address the merits of the claim, rendering moot the trial court’s ruling on the procedural
question.

Therefore, the procedural bar does not prevent this Court from hearing

Petitioner’s habeas claim. Accord Madrigal v. Bagley, 276 F. Supp. 2d 744, 765 (N.D.
Ohio 2003), aff'd, 413 F.3d 548 (6th Cir. 2005) (“Because the appellate court, the last
court to make a reasoned decision, did not clearly and expressly rest its decision on the
res judicata doctrine, Madrigal's twelfth claim is not procedurally barred.”). To the extent
that the Magistrate Judge concluded that Petitioner’s Brady claim is procedurally
defaulted, the Court finds that the Magistrate Judge's order is contrary to law.
Accordingly, Petitioner’s objections are sustained on this issue.
III. CONCLUSION
Based on the foregoing, Petitioner’s objections to the Magistrate Judge’s May 1,
2017 Decision and Order (Doc. 96) and July 27, 2017 Supplemental Opinion (Doc. 106)
are OVERRULED in PART and SUSTAINED in PART. The Magistrate Judge’s May 1,

11

2017 Decision and Order (Doc. 96) and July 27, 2017 Supplemental Opinion (Doc. 106)
are modified in a manner not inconsistent with this Order.
IT IS SO ORDERED.
/s/Michael R. Barrett
JUDGE MICHAEL R. BARRETT

12