Bethel v. Warden Ohio State Penitentiary
Filing
128
DECISION AND ORDER DENYING MOTIONS FOR DISCOVERY AND TO STAY - The Court DENIES Petitioner's Renewed Motion for Leave to Conduct Discovery (ECF No. 120) and Petitioner's Motion to Stay (ECF No. 125). Petitioner's Amended Petition for Writ of Habeas Corpus (ECF No. 48) remains pending before this Court. Signed by Magistrate Judge Michael R. Merz on 11/13/2018. (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.
DECISION AND ORDER DENYING MOTIONS FOR DISCOVERY
AND TO STAY
This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner Robert
Bethel’s Renewed Motion for Leave to Conduct Discovery (Motion for Leave, ECF No. 120) and
a Motion to Stay Federal Habeas Proceedings (Motion to Stay, ECF No. 125). The Respondent
Warden opposes BOTH (Memos. in Opp., ECF Nos. 122) and Petitioner has filed replies in support
(ECF Nos. 123, 127). For the reasons set forth below, Petitioner’s Motion for Discovery and
Motion to Stay are DENIED.
RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner previously filed a Motion for Evidentiary Hearing as to his Fifteenth Ground for
Relief—that he “was denied due process and a fair trial under the Sixth and Fourteenth
Amendments when the state failed to provide him with favorable evidence that was material to his
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defense.” (Decision and Order, ECF No. 96, Page ID 8535, quoting First Amended Petition, ECF
No. 48, PageID 650, citing Brady v. Maryland, 373 U.S. 83 (1963)). On May 1, 2017, the
Magistrate Judge denied that motion, finding the Fifteenth Ground to be procedurally defaulted.
Id., Page ID 8545. On July 27, 2017, the Magistrate Judge issued a Supplemental Opinion (ECF
No. 106), noting that Ohio state courts—specifically, the Franklin County, Ohio, Court of
Common Pleas and the Tenth District Court of Appeals—had reached the merits of Petitioner’s
Brady claim. Id., Page ID 8650, citing State Court Record, ECF No. 11-2, Page ID 206. Common
Pleas Judge Richard Frye found that Petitioner had not been diligent in discovering the report of
Bureau of Alcohol, Tobacco, and Firearms (“ATF”) Special Agent Daniel F. Ozbolt (“Ozbolt
Report” or “ATF Report”); moreover, he found no “evidence that the ATF Report was either
intentionally suppressed or in a file where it simply was overlooked by the prosecutors or
Columbus Police. The ATF Report did not mention Mr. Bethel at all.” (State Court Record, ECF
No. 11-2, Page ID 206). Finally, the trial court concluded that the Ozbolt Report was not material,
as “[n]o new avenue was suggested by the ATF Report on how to convincingly attack [police
informant Donald] Langbein1[,]” and that
Considering the entire record, including Bethel’s own statements admitting to
killing Reynolds and Hawks and the material variance 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., Page ID 206, 207 (emphasis added). The Tenth District affirmed the trial court’s decision.
State v. Bethel, 10th Dist. Franklin No. 09-AP-924, 2010-Ohio-3837 (Aug. 17, 2010).
1 Langbein, in exchange for a more lenient sentence, agreed to cooperate with police by wearing a wire while speaking with Bethel, who made inculpatory statements that he killed
James Reynolds (“Reynolds”) and Shannon Hawks (“Hawks”) with a 9 mm handgun (State Court Record, ECF No. 11-2, Page ID 206). Bethel “was convicted of the aggravated
murders of Reynolds and Hawks and was sentenced to death.” State v. Bethel, 110 Ohio St. 3d 416, 2006-Ohio-4853, ¶ 1.
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“The Magistrate Judge found that the premise of the Motion for Discovery was that the
Ozbolt Report was Brady material[,] and that [that] premise was undermined by the Ohio courts’
decision that it was not, a conclusion entitled to [Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132, 110 Stat. 1214 (‘AEDPA’)] deference.” (Supp. Opinion, ECF No. 106,
Page ID 8651, citing Decision and Order, ECF No. 69, Page ID 8303). He also reiterated his
earlier finding that Petitioner’s Brady claim was procedurally defaulted, based on the trial court’s
finding that he had not demonstrated due diligence, as he waited almost five years from the date
of his conviction to make the public records request for the Ozbolt Report, and more than five
months from the time he got the report (November 2008) before moving for a new trial (April
2009). Id., Page ID 8655, citing State Court Record, ECF No. 11-2, Page ID 203-06; Decision
and Order ECF No. 96, Page ID 8545.
Petitioner objected to both the initial and supplemental decisions, ECF Nos. 100, 111, and
on March 18, 2018, Judge Barrett sustained in part and overruled in part Petitioner’s objections
(Opinion & Order, ECF No. 118, Page ID 8718). The Court noted the Tenth District’s recitation
of the evidence introduced against Petitioner, including his statement to his then-girlfriend,
Theresa Cobb Campbell, that he and co-defendant Jeremy Chavis had killed Reynolds and Hawks,
and his proffer, made as part of a (subsequently-voided) plea agreement, in which he described in
detail his commission of the murders (along with Chavis). Id., Page ID 8722-23, citing State Court
Record, ECF No. 11-4, Page ID 236-37, 243. In light of: (a) that strong evidence; (b) vigorous
cross-examination of Langbein by Petitioner’s counsel; and (c) the fact that the Ozbolt Report did
not contain statements in which Langbein actually admitted involvement in the murders, the Tenth
District found that the Ozbolt Report was not material (State Court Record, ECF No. 11-4, Page
ID 243-44; see also Eakes v. Sexton, No. 14-5017, 592 F. App'x 422, 427-28 (6th Cir. 2014),
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quoting United States v. Sipe, 388 F.3d 471, 478 (5th Cir. 2004) (impeachment evidence is material
for Brady purposes only if it “would seriously undermine the testimony of a key witness on an
essential issue or there is no strong corroboration[.]”). The Magistrate Judge concluded that the
state court decision was not an unreasonable application of clearly established federal law
(Decision and Order, ECF No. 96, Page ID 8539, citing 28 U.S.C. § 2254(d)(1)), and Judge Barrett
found “that the Magistrate Judge’s order was not clearly erroneous or contrary to law.” (Opinion
& Order, ECF No. 118, Page ID 8724).
Judge Barrett also held that the Magistrate Judge’s conclusion that the Tenth District
properly found that the Ozbolt Report was not suppressed by the State of Ohio “was not an
unreasonable determination of the facts.” (Opinion & Order, ECF No. 118, Page ID 8724). In its
decision, the Tenth District noted that the Ozbolt Report was “titled ‘CHAVIS, Jeremy’ and
ma[de] no reference whatsoever” to Petitioner, and there was no evidence of when, if ever, the
Report was transferred from ATF to the Columbus Police and placed in Petitioner’s file. The State
had no duty to disclose information that was only in the possession of federal authorities. Thus,
Petitioner had presented no evidence that the State actually suppressed the Report. Id., quoting
State Court Record, ECF No. 11-4, Page ID 242. Further, the Tenth District held, even if the
Ozbolt Report had been suppressed, there was no reasonable probability that its disclosure would
have resulted in “a different trial outcome[.] . . . Thus, we find no Brady violation[.]” State Court
Record, ECF No. 11-4, Page ID 242.
Moreover, Judge Barrett affirmed the Magistrate Judge’s conclusion that the Ozbolt
Report’s double hearsay—i.e., Williams’s recitation to Ozbolt of what Langbein had told
Williams—weighed against finding that the Report was material (Opinion & Order, ECF No. 118,
Page ID 8725-26, citing Decision and Order, ECF No. 96, Page ID 8539). Further, the District
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Court adopted the Tenth District’s recitation of “other evidence in the record which undermined
the reliability of the Ozbolt [R]eport[.]” Id., Page ID 8726. However, Judge Barrett found as
contrary to law the Magistrate Judge’s conclusion that Petitioner’s Brady claim was procedurally
defaulted, sustained Petitioner’s objections as to that conclusion, and modified the original and
supplemental decisions accordingly. Id., Page ID 8728-29, citing Decision & Order, ECF No. 96;
Supp. Opinion, ECF No. 106. Importantly for the present purposes, the portions of Magistrate
Judge’s decisions denying Petitioner an evidentiary hearing and leave to conduct discovery
remained in effect and unchanged.
On May 1, 2018, Petitioner filed the instant Renewed Motion for Leave to Conduct
Discovery (ECF No. 120).
Therein, he argues that he had discovered new evidence that
corroborates the subject matter of the Ozbolt Report. Id., Page ID 8737, citing Opinion & Order,
ECF No. 118, Page ID 8726. Petitioner claims to have discovered the statements of a Ronald
Withers, who told Ozbolt on July 1, 2001, that Chavis had told him that Langbein (Chavis’s cousin)
was the shooter. Id., citing Informational Summary, ECF No. 95-9, Page ID 8533; Aff. of Ronald
Withers, ECF No. 120-1. Petitioner also obtained a Columbus Police memorandum entitled
“Police Progress of Investigation Informational Summary 85.”
Id., Page ID 8744.
The
memorandum listed eleven tapes in the possession of the police that contained twenty-seven
conversations involving Chavis and/or Langbein, all of which took place “between July 22, 2000[,]
and August 19, 2000, shortly before Langbein—then charged with an unrelated federal firearms
violation—agreed to wear a concealed recorder during conversations with Bethel, and Bethel’s
subsequent arrest in this case.” Id., Page ID 8738. Despite making public records requests,
Petitioner was able to obtain only four of the tapes, which contained twelve of the twenty-seven
phone calls. The State still refuses to turn over the remaining recordings or other statements, in
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derogation, Petitioner argues, of a continuing obligation to do so. Id., Page ID 8738, 8740-41,
citing Ohio Crim. R. 16(B)(1)(a). Nonetheless, in one of the calls, Chavis told an unidentified
female that he had “taken the rap” for Langbein with respect to the murders. Id., Page ID 8738.
Had the memorandum and recordings been produced in pretrial discovery, Petitioner
argues, his trial counsel could have investigated further Langbein’s involvement in the murders of
which Bethel was convicted. He claims the evidence is material because the Supreme Court of
Ohio found Langbein’s testimony to be “key evidence supporting Bethel’s conviction.”
(Discovery Motion, ECF No. 120, Page ID 8739, quoting State v. Bethel, 110 Ohio St. 3d 416,
2006-Ohio-4853, ¶ 101). Petitioner argues that this corroborating evidence, once introduced on
cross-examination, would have implicated Langbein as a potential culprit, and thus, would have
caused at least one juror to have reasonable doubt about Petitioner’s culpability. Id., Page ID 8740.
He claims that, in light of the materials he has been able to obtain thus far, he has demonstrated
sufficient knowledge of suppressed evidence to show that his Motion for Leave is not “a fishing
expedition masquerading as discovery.” Id., Page ID 8741, quoting Stanford v. Parker, 266 F.3d
442, 460 (6th Cir. 2001).
Further, Petitioner argues that State ex rel Caster v. The City of Columbus, in which the
Supreme Court of Ohio held “that the exemption that shielded law enforcement investigatory files
from disclosure under Ohio’s public records law did not extend beyond completion of the relevant
trial[,]” applies retroactively (Discovery Motion, ECF No. 120, Page ID 8742-43, citing 151 Ohio
St. 3d 425, 2016-Ohio-8394, ¶¶ 19, 44, 47; State v. Larkins, 8th Dist. Cuyahoga No. 85877, 2006Ohio-90, ¶¶ 11-13 (Jan. 12, 2006). Petitioner claims that, as soon as Caster was issued, he made
public records requests to the Franklin County, Ohio, Sheriff’s Office, which represented that it
had no relevant or responsive records. Id., Page ID 8744 (citing Public Records Requests, ECF
6
No. 95-1, Page ID 8524; ECF No. 95-2, Page ID 8525). On January 9, 2017, Petitioner submitted
a public records request to the Columbus Police, which “resulted in additional documents disclosed
to Bethel for the first time that contained information relevant to his Brady claim, which prompted
Bethel to submit additional requests on March 16, 2017, to the Columbus Division of Police for
all records relating to Cheveldes Chavis, Jeremy Chavis, and Donald Langbein.” Id. (citing Public
Records Requests, ECF 95-6, PageID 8529; ECF 95-7, PageID 8530; ECF 95-8, PageID 8531).
That request, in turn, yielded the memorandum detailing the phone calls. On April 25, 2017,
Petitioner submitted a new request to the Columbus Police, requesting “all cassette tapes
mentioned in informational summary 85[,]” and on May 18, 2017, the police department provided
the four tapes discussed above. Id., quoting Public Records Request, ECF No. 97-2, Page ID 8558.
In response to a final request by Petitioner on May 24, 2017, the police department represented
that it did not possess the remaining tapes. Id., Page ID 8744-45.
Most importantly for this Motion, Petitioner argues, the evidence that the State supposedly
suppressed was material and sufficiently exculpatory as to undermine confidence in the verdict.
Langbein was one of the State’s key witnesses, having provided police with the identities of Bethel
and Chavis, their manner in which they supposedly committed the murders, and his (Langbein’s)
knowledge of the murders after the fact (Reply, ECF No. 123, Page ID 8769-70, citing Return of
Writ App’x, ECF No. 54-9, Page ID 3017-18). The suppressed evidence, Petitioner claims,
undermines Langbein’s credibility, which makes it probative both for its substance and for
impeachment purposes, and thus, would be admissible as non-hearsay. Id., Page ID 8769, 8774,
8775, citing Wearry v. Cain, --- U.S. ----, 136 S. Ct. 1002, 1006 (2016); Smith v. Cain, 565 U.S.
73, 76 (2012); Banks v. Dretke, 540 U.S. 668, 700-01 (2004); Strickler v. Greene, 527 U.S. 263,
293-94 (1999); United States v. Agurs, 427 U.S. 97, 112-13 n.21 (1976); Giglio v. United States,
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405 U.S. 150, 154-55 (1972); Napue v. Illinois, 360 U.S. 264, 269 (1959); Bies v. Sheldon, 775
F.3d 386, 400 (6th Cir. 2014); Gumm v. Mitchell, 775 F.3d 345, 369 (6th Cir. 2014); Ohio R. Evid.
613, 616(A). Had counsel been in possession of the evidence, Petitioner argues, he “could have
used the suppressed report where Chavis implicated Langbein to suggest Langbein’s guilt and
argue that [Langbein] attempted to frame Bethel.” Id., Page ID 8770, citing D'Ambrosio v. Bagley,
527 F.3d 489, 498-99 (6th Cir. 2008). In support, he claims, Chavis’s statement that he “took the
rap” is consistent with Langbein’s and Chavis’s implicating each other as the shooters, and
Langbein’s previously confessing to the homicide. Id., Page ID 8773, citing Interview of Shannon
Williams, ECF No. 60-1, Page ID 7942; Discovery Motion, ECF No. 120, Page ID 8738. Although
“the Warden again counters that ‘the defense already had ample reason to investigate Langbein as
a possible alternate suspect[,]’ . . . this incentive to counter Langbein’s testimony is exactly why
the suppressed documents and information are material, where trial counsel tried and failed to
impeach Langbein[.]” Id., Page ID 8771, quoting Memo. in Opp., ECF No. 122, Page ID 8759;
citing Robinson v. Mills, 592 F.3d 730, 737 (6th Cir. 2010). In sum, Petitioner argues, the inability
or unwillingness of governmental entities to produce relevant, responsive materials, to which he
is entitled and which are germane to his Brady claim, necessitates Court-ordered discovery.
(Discovery Motion, ECF No. 120, Page ID 8745-46).
On October 9, 2018, Petitioner filed the Motion to Stay, arguing that the materials that he
had obtained since filing his Amended Petition gave rise to a new Brady claim, which he is required
to exhaust before this Court may consider the claim on its merits (ECF No. 125, Page ID 8868).
LEGAL STANDARDS
A.
Brady Claim
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The State has a duty to produce exculpatory evidence in a criminal case. If the State
withholds evidence and it is material, the conviction must be reversed. Brady v. Maryland, 373
U.S. 83 (1963). To achieve this goal, “Brady held ‘that the suppression by the prosecution of
evidence favorable to an accused . . . 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.’” Kyles v.
Whitley, 514 U.S. 419, 432 (1995), quoting Brady, 373 U.S. at 87. To meet his prima facie burden
under Brady, Petitioner must show that: (a) the State suppressed evidence, in derogation of its
ongoing duty to produce evidence favorable to Petitioner, even in the absence of a specific request,
id. at 433-34 (citations omitted); (b) the suppressed evidence was favorable to Petitioner, either
because it is exculpatory or it undermines the prosecution’s case, Strickler, 527 U.S. at 281-82;
and (c) the evidence was material, with a reasonable probability of a different outcome; in other
words, its absence deprived Petitioner of “a understood as a trial resulting in a verdict worthy of
confidence.
A reasonable probability of a different result is accordingly shown when the
government’s evidentiary suppression undermines confidence in the outcome of the trial.” Kyles,
514 U.S. at 434 (internal quotation marks and citation omitted). In determining whether a Brady
violation has occurred, the Court must evaluate the favorability and materiality of the suppressed
evidence in light of the entire state court record. Id. at 436.
B.
Motion to Stay
Due to principles of comity and judicial economy, federal courts have long been precluded,
as a general rule, from adjudicating claims raised in habeas corpus that have not been exhausted
in the state courts. Keeney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992); Coleman v. Thompson, 501
U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 522 (1982). The decision on whether to hold
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habeas proceedings in abeyance, so that a petitioner may raise claims based on newly discovered
evidence to the state court (the proper venue for hearing the claims in the first instance), is within
the district court’s sound discretion. Rhines v. Weber, 544 U.S. 269, 277-78 (2005); Cowan v.
Stovall, 645 F.3d 815, 820-21 (6th Cir. 2011). The petitioner must “[1)] show good cause for
failing to present the claims before the state court in the first instance, and 2) show that his
unexhausted claims are not ‘plainly meritless.’” Wagner v. Smith, 581 F.3d 410, 419 (6th Cir.
2009), quoting Rhines, 544 U.S. at 277.
C.
Motion for Leave to Conduct Discovery
A habeas petitioner is not entitled to discovery or an evidentiary hearing as a matter of
course, but only after the Court determines that Petitioner has made a showing of good cause to
do so. Rule 6(a), Rules Governing § 2254 Cases; Bracy v. Gramley, 520 U.S. 899, 901 (1997);
Harris v. Nelson, 394 U.S. 286, 295-96 (1969). Before determining whether discovery is
warranted, the Court must first identify the essential elements of the claim on which discovery is
sought. Bracy, 520 U.S. at 904, citing United States v. Armstrong, 517 U.S. 456, 468 (1996). “The
burden of demonstrating the materiality of the information requested is on the moving party.”
Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001), citing Murphy v. Johnson, 205 F.3d 809,
813-15 (5th Cir. 2000). “Even in a death penalty case, bald assertions and conclusory allegations
do not provide sufficient ground to warrant requiring the state to respond to discovery[,]” or for
the Court to “require an evidentiary hearing.” Id., quoting Zettlemoyer v. Fulcomer, 923 F.2d 284,
301 (3rd Cir. 1991).
In order to obtain an evidentiary hearing in federal court on a claim on which he has not
fully developed the factual basis in state court, a habeas corpus petitioner must show cause and
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prejudice. Keeney v. Tamayo-Reyes, 504 U.S. 1, 2, 11 (1992), superseded by statute on other
grounds as stated in Williams v. Taylor, 529 U.S. 420, 432 (2000), citing Wainwright v. Sykes,
433 U.S. 72, 87-88 & n.12 (1977). Logically, there is no good reason to gather evidence which
one will not be permitted to present because one cannot satisfy the Keeney standard. Therefore, if
there are items of evidence sought in discovery which could have been obtained and presented
during the state court process but were not, a petitioner should make the required Keeney showing
before being authorized to conduct discovery to obtain the evidence.
ANALYSIS – MOTION TO STAY
Petitioner asks this Court to “stay the proceedings and hold them in abeyance pending the
outcome of a new trial motion filed in the Franklin County Court of Common Pleas. The new trial
motion provides the state court with its first opportunity to review newly discovered exculpatory,
material evidence that the State improperly suppressed[.]” (Motion to Stay, ECF No. 125, Page
ID 8868, citing Notice of State Court Litigation, ECF No. 124-1, 124-2). In support, Petitioner
notes that he received from the Columbus, Ohio, Police Department, as the result of a 2008 public
records request, the transcript of a conversation between a Donald Langbein, an inmate, the State’s
main witness against Petitioner at trial, and the cousin of Petitioner’s co-defendant Jeremy Chavis,
and a Shannon Williams (also known as “Puff”), a fellow inmate and also a government informant.
Id. The transcript contained a statement in which Langbein told Williams that “he was involved
in a homicide with an individual who is now incarcerated at the Federal Penn.[sic], Ashland, KY,
where the victim was shot seventeen times.” Id., quoting Return of Writ App’x, ECF No. 55-7,
Page ID 4593. Chavis was incarcerated at the Federal Correctional Institution - Ashland at the
time Langbein made the statement to Williams, and “[b]ased on this report,” Petitioner argues, “it
11
appears that Langbein admitted that he and Chavis, not Bethel, killed Shannon Hawks and James
Reynolds.” Id. This report was never disclosed to Petitioner’s counsel, despite repeated requests
for all Brady material. Upon discovery, Petitioner obtained leave of this Court to stay the
proceedings with respect to his initial Petition so that he could return to state court and exhaust his
Brady claim via a motion for a new trial. The motion was denied, and on March 4, 2013, after the
Supreme Court of Ohio declined jurisdiction, Petitioner filed his Amended Petition. Id., Page ID
8869-70 (citations omitted).
Petitioner subsequently discovered a report (“Summary 86”) of a July 1, 2001,
conversation among Withers, Ozbolt, and Columbus Police Detective Edward K. Kallay, Jr., in
which Withers told Ozbolt that Chavis had told him “that his cousin, who was also incarcerated,
was the other shooter. Withers provided an affidavit confirming that Chavis told him this
information, and that Withers relayed it to detectives from the Columbus Police Department in
2001.” (Motion to Stay, ECF No. 125, Page ID 8870, citing Aff. of Ronald Withers, ECF No. 124,
Page ID 8800-01). Despite the exculpatory statements therein and repeated requests for all Brady
material, Summary 86 was never provided to Petitioner’s counsel. Id., Page ID 8870-71.
Petitioner argues that Langbein’s statement to Puff (in the Ozbolt Report) and Withers’s
statement to Ozbolt and Kallay strongly implicate “[t]he existence of a legitimate suspect other
than [Petitioner.]” (Motion to Stay, ECF No. 125, Page ID 8878, citing Bies, 775 F.3d at 400). He
claims that Summary 86 is so probative that the State’s withholding of it, and the consequent
inability of Petitioner to introduce it, resulted in a verdict not worthy of confidence, and thus,
Summary 86 satisfies the materiality prong of Brady. Id., citing Kyles v. Whitley, 514 U.S. 419,
435, 440 (1995). Finally, he claims, the statements provide independent corroboration of the
Ozbolt Report as to Langbein’s involvement (and Petitioner’s lack thereof) in the murders “that
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this Court indicated could support further relief.” Id., Page ID 8879, citing Opinion & Order, ECF
No. 118, Page ID 8726.
For several reasons, the Court is dubious that Summary 86 can form the basis for a viable
Brady claim. First, the statements in Summary 86 are inadmissible hearsay by themselves.
However, Petitioner, in his Motion for Discovery, offered the affidavit of Ronald Withers, who
averred that he recounted Chavis’s statements during his interview with the Columbus Police
Department in July 2001 (Withers Aff., ECF No. 120-1, ¶¶ 7-9, Page ID 8749-50). Thus, Withers
may be able to attest to the statements that he made. Second, the supposedly exculpatory
statements made by Withers to Ozbolt and Kallay were not his personal opinions or impressions,
but rather, Withers relaying what Chavis told him. Id., ¶ 8, Page ID 8750. Thus, there exists a
second level of hearsay, and Petitioner does not identify any exclusion or exception that would
have permitted the statements to be introduced at trial for the truth of the matters asserted. Ohio
R. Evid. 801, 803, 804. While Summary 86 itself need not be admissible for a stay to be granted,
Petitioner has failed to articulate how Summary 86 demonstrates that further discovery might
reasonably be expected to lead to the discovery of admissible evidence such that a stay is
warranted. Third, the inadmissibility of the statements for the truth of the matters asserted limit
their ability to be “the ‘corroborating circumstances which would indicate the trustworthiness of
the statement” contained in the Ozbolt Report, which, as Judge Barrett held previously, was a
prerequisite to taking further discovery (Opinion & Order, ECF No. 118, Page ID 8726).
In his memorandum contra, the Warden presents an additional argument as to why the
Motion to Stay is not well-taken, because Petitioner does not present a “mixed petition” of
exhausted and unexhausted claims, for which stay and abeyance while a petitioner returns to state
court is appropriate (Memo. in Opp., ECF No. 126, Page ID 8884-85, citing Rhines v. Weber, 544
13
U.S. 269, 271-77 (2005)). Rather, the Motion is an attempt to buttress the Brady claim at issue in
his Amended Petition, which is already exhausted. Id., Page ID 8885, citing Order, ECF No. 13.
While the Sixth Circuit has flatly rejected the premise that “Rhines permits stays for a petitioner
to ‘exhaust evidence’—in other words, to return to state court to submit additional evidence to
buttress claims already exhausted,”
the Court did acknowledge that “potential exculpatory
evidence discovered in federal habeas proceedings could constitute a new claim outside the bar to
new evidence announced by the majority [in Cullen v. Pinholster, 563 U.S. 170 (2011)], and the
majority left open the possibility that this could constitute a new claim.” Carter v. Mitchell, 829
F.3d 455, 466, 467 (6th Cir. 2011) citing Pinholster, 563 U.S. at 186 n.10 (2011). The petitioner
in Carter was not claiming that the State had failed to disclose any evidence; rather, “Carter simply
neglected to submit relevant documents to the jury or attach much additional information to his
post-conviction petition.” Id. Consequently, the Carter court held, the petitioner was attempting
“to use Rhines as an end-run around Pinholster, with the added benefit that a return to state court
might delay his impending death sentence for a substantial period.” Id. at 467.
Petitioner attempts to distinguish Carter by claiming that he did not discover Summary 86
until after his Brady claim was exhausted, and he filed his Amended Petition (Motion to Stay, ECF
No. 125, Page ID 8870; Reply, ECF No. 127, Page ID 8889). Yet, even if the discovery of
Summary 86 were to create a new, unexhausted Brady claim, the Motion to Stay would still be
unavailing. While Petitioner states that the “Warden does not challenge Bethel’s assertions that
the ‘Summary 86’ police report was suppressed[,]” (Reply, ECF No. 127, Page ID 8887), that
statement is inconsistent with the standard that Petitioner bears the prima facie burden to “show
good cause for failing to present the claims before the state court in the first instance[.]” Id., citing
Wagner, 581 F.3d at 419. Petitioner offers only the following conclusory statement in his attempt
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to show good cause: “Subsequent to the filing of the Amended Petition, Bethel discovered another
police report, captioned ‘Summary 86.’” Id., citing Police Progress of Investigation, ECF No. 959. Petitioner gives no indication of when he discovered Summary 86 or how he obtained it.
Without more, he has not demonstrated good cause as to why, five years after filing his Amended
Petition, he is just now seeking to return to state court. Further, while Summary 86 lists Kallay as
the interrogating detective, it is signed by Ozbolt, who is not a member of the Columbus Police
(Police Progress of Investigation, ECF No. 95-9, ECF No. 8532, 8534), and Petitioner offers no
insight as to when, if ever, Summary 86 came into the possession of the State. Without such
information, the Court cannot determine whether the State even suppressed the material.
Further, Summary 86 could have been used only for a very narrow purpose, and the
statements contained therein are of limited probative or corroborative value. In his Reply,
Petitioner claims that the Warden does not “challenge the evidence on the favorability or
materiality prongs of Brady.” (ECF No. 127, Page ID 8887). Yet, for the reasons discussed above,
Petitioner has not met either the favorability or materiality prong with respect to Summary 86.
Finally, the Court must be mindful of the “AEDPA’s purpose of achieving finality . . . when
deciding the propriety of a stay.” Carter, 829 F.3d at 467. In light of the above, the Court
concludes that Petitioner has still not demonstrated good cause to stay this proceeding and return
to state court, and the Motion to Stay is denied.
ANALYSIS – MOTION FOR DISCOVERY
A.
Applicability of Pinholster
The Warden argues that the State Court’s adjudication of Petitioner’s Brady claim on its
merits means that the Court may not review any materials outside of the state court record (Memo.
15
in Opp., ECF No. 122, Page ID 8755, citing Pinholster, 563 U.S. at 185 (2011); Loza v. Mitchell,
766 F.3d 466, 494 (6th Cir. 2014)). He claims that, even though Pinholster “did not address the
availability of discovery in federal habeas proceedings,” the majority of courts, including within
the Sixth Circuit, “are applying Pinholster to discovery in habeas proceedings and denying
petitioners’ requests for discovery of evidence that Pinholster would bar from their review.” Id.,
Page ID 8755-56, quoting Broom v. Bobby, 2018 U.S. Dist. LEXIS 57564, at *9 (N.D. Ohio Apr.
4, 2018); citing Caudill v. Conover, 871 F. Supp. 2d 639, 646-47 (E.D. Ky. 2012); Davis v. Bobby,
No. 2:10-cv-107, 2017 U.S. Dist. LEXIS 90624, at *5 (S.D. Ohio Jul. 13, 2017) (Jolson, Mag. J.),
report and recommendations adopted at 2018 U.S. Dist. LEXIS 67993 (S.D. Ohio Apr. 23, 2018)
(Sargus, C.J.); Blevins v. Warden, Ross Corr. Inst., No. 1:05-cv-38, 2011 U.S. Dist. LEXIS
142011, at *8-9 (S.D. Ohio Dec. 9, 2011) (Merz, Mag. J.)); but see Group v. Robinson, 132 F.
Supp. 3d 954, 960 (N.D. Ohio 2015), citing Conway v. Houk, No. 2:07-cv-947, 2011 U.S. Dist.
LEXIS 57228 (S.D. Ohio May 26, 2011) (McCann King, Mag. J.) (“The Supreme Court and the
Sixth Circuit have not declared whether a habeas petitioner can stage discovery in this way”).
Petitioner argues that Pinholster “did not eradicate the possibility of factual development
in habeas (Reply, ECF No. 123, Page ID 8764, citing Brumfield v. Cain, --- U.S. ----, 135 S.Ct.
2269, 2273 (2015)). He claims that when, as here, the state court makes evidentiary findings
without giving petitioner the chance to develop the facts, then those findings are unreasonable
determinations of the facts under 28 U.S.C. § 2254(d)(2), and “permitting discovery beyond the
state court record does not go against ‘Congress’[s] intent to channel prisoners’ claims first to the
state courts.’” Id., Page ID 8765, quoting Pinholster, 563 U.S. at 182; citing Taylor v. Maddox,
366 F.3d 992, 1001 (9th Cir. 2004,) overruled on other grounds by Murray v. Schriro, 745 F.3d
984, 999–1000 (9th Cir. 2014). Moreover, Petitioner claims to have made a “sufficient effort to
16
develop and present evidence in state court, but [was] unreasonably thwarted,” making federal
discovery the only avenue by which he can obtain the evidence necessary to prosecute his Brady
claim. Id. In support, he notes the following language from Pinholster: “[28 U.S.C.] § 2254(e)(2)
should be interpreted in a way that does not preclude a state prisoner, who was diligent in state
habeas court and who can satisfy § 2254(d), from receiving an evidentiary hearing.” Id., Page ID
8767 (emphasis in original), quoting Pinholster, 563 U.S. at 184 n.5.
The Warden is correct that the trend among district courts, particularly within the Sixth
Circuit, has been to apply Pinholster to bar discovery and evidentiary hearings regarding evidence
that cannot properly be considered by this Court. Nonetheless, Judge Barrett concluded that
Petitioner’s Brady claim was not procedurally defaulted for failure to comply with the state law
limitations on time to file a motion seeking a new trial (Opinion & Order, ECF No. 118, Page ID
8728). Moreover, Petitioner’s efforts to obtain the materials, as described above, suggested that
he has been diligent in attempting to obtain all materials supporting his Brady claim. If he was
unable to do so because of improper suppression by the State, then the Pinholster limitation is
inapplicable, and the Court must review Petitioner’s Brady claim with new evidence.
B.
Suppression
Petitioner argues that neither the memorandum nor the tapes were ever turned over to him;
nor were their respective existences disclosed by the State (Discovery Motion, ECF No. 120, Page
ID 8737-39). Moreover, the Ozbolt Report was never disclosed to him, despite its coming into the
possession of the Columbus Police Department, and despite the State’s ongoing obligation to learn
of and produce exculpatory evidence, even if the State was not aware of such evidence prior to or
at the time of trial. Id., Page ID 8740-41, citing Kyles, 514 U.S. at 437, Ohio Crim. R. 16(B)(1)(a).
17
The Warden argues that the State did not suppress any such evidence, as the Ozbolt Report
was not “the type of material, exculpatory evidence which the Due Process Clause requires the
prosecution to disclose[,]” and neither are the materials sought in discovery (Memo. in Opp., ECF
No. 122, Page ID 8756). This argument is premature, as the Court must first determine whether
the evidence was material and exculpatory before it can determine whether it was wrongfully
withheld for Brady purposes. Nonetheless, the evidence must have been in the State’s possession
for the Court to reasonably conclude that it was suppressed. Pennsylvania v. Richie, 480 U.S. 39,
57 (1987). While Petitioner obtained the Ozbolt Report after the trial, he has not set forth evidence
that the report was in the State’s possession at any time prior to or during trial. Indeed, he has
presented no evidence as to how or when this federal report came into the State’s possession. The
Tenth District found that:
[I]t 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.
State v. Bethel, 10th Dist. Franklin No. 09AP-924, 2010-Ohio-3837, ¶ 19 (Aug. 17, 2010). The
issue of the alleged suppression of the Ozbolt Report was conclusively litigated in this Court (ECF
Nos. 106, 118), and Petitioner has not introduced new evidence that would cause the Magistrate
Judge to re-evaluate his decision. Thus, the Court does not conclude that the Ozbolt Report was
suppressed, and the report cannot be part of a viable Brady claim.
However, the memorandum and recordings were, unlike the Ozbolt Report, originally
created and maintained by state authorities, and presumably should have been disclosed upon the
proper request by Petitioner, yet were not. Thus, for the purposes of this Motion only, the Court
considers the memorandum and recordings described in the Motion as having been suppressed.
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C.
Favorability
The Warden argues that, even if the State possessed and suppressed the memorandum and
tape recordings described above, and its failures to disclose that information violated Rule 16, the
failures do not, by themselves, constitute grounds for granting leave to conduct discovery. Rather,
the Court must have “reason to believe that if the facts are fully developed, the prisoner will be
able to show that he is entitled to habeas corpus relief.” (Memo. in Opp., ECF No. 122, Page ID
8757, citing Harris v. Nelson, 394 U.S. 286, 300 (1969)).
The Warden argues that, for several reasons, Petitioner cannot make a prima facie showing
of favorability under Brady. First, he claims that, in light of the Court’s concerns about lack of
“corroborating circumstances which would indicate the trustworthiness of the statement” in the
Ozbolt Report (Opinion & Order, ECF No. 118, Page ID 8726, citing State Court Record, ECF
No. 11-4, Page ID 243), the new documents do nothing to assuage those concerns (Memo. in Opp.,
ECF No. 122, Page ID 8758). Rather, he argues, “the Columbus Police Report gives rise to
numerous discrepancies which thoroughly undermine its relevance.” Id. The report contained the
following alleged statements from Chavis:
(1)
(2)
(3)
(4)
“[H]ow much time he’d [sic] get on a homicide if he makes a deal;"
“[W]hen [Chavis] shot the individual he was already dead;”
“[B]allistics will show that his bullet was not the fatal shot;” and
“[H]is cousin was the other shooter.”
Id., citing Police Progress of Investigation, ECF No. 95-9, Page ID 8533. The Warden argues that
“[t]hose statements are inconsistent with both the established facts and Langbein’s reported
statements.” Id. Specifically, the Warden notes that the report contained no statement about the
fact that Chavis and Bethel were charged with double homicide, in which the victims were shot
numerous times. “It seems highly unlikely[,]” the Warden opines, “that in asking for an opinion
19
on what sentence he might get, Chavis would neglect to mention” that he was charged with killing
two individuals. Id., Page ID 8758. Further, the Warden argues, “[i]t is undisputed that the victims
were shot multiple times, and that more than one of the shots could have been fatal. It is not likely
that Chavis would think ballistics tests would come into play in such circumstance.” Id., Page ID
8758-59.
Second, Chavis, as a co-defendant, did not testify against Petitioner, and hearsay rules
would have barred Withers or Petitioner himself from testifying as to Chavis’s statements. Thus,
the statements, and any related evidence that would have been reasonably discoverable, could not
have been introduced at trial (Memo. in Opp., ECF No. 122, Page ID 8759). Finally, the Warden
notes that Petitioner has failed to identify the female with whom Chavis is discussing Langbein’s
purported culpability, and provides no other information regarding the recordings. Id., citing
Discovery Motion, ECF No. 120, Page ID 8738. Thus, the Warden claims that Petitioner’s
descriptions of Chavis’s phone calls “do[] not describe specifically any of the allegedly material
conversations, rendering it impossible for the Court to determine whether in law or fact the
conversations are or could reasonably lead to material, exculpatory evidence[,]” id., Page ID 8759,
and consequently, the Motion should be denied.
Petitioner argues that the evidence obtained, when viewed in the context of Langbein’s
importance to the case, is highly favorable toward him (Reply ECF No. 123, Page ID 8766, 8769).
He notes that Langbein provided police with the identities of Bethel and Chavis, their motive, and
specific details about the murders. Id., Page ID 8769-70, citing Return of Writ App’x, ECF No.
54-9, Page ID 3017-18. Thus, the memorandum and recordings, Petitioner argues, provide
corroboration to his argument with respect to the Ozbolt Report: that Langbein, despite being the
State’s “star witness,” whose wire recordings and testimony constituted much of the inculpatory
20
evidence against Bethel, actually committed the murders with Chavis. Id., Page ID 8766. Thus,
he claims, he has met the favorability prong in Brady. Id., PageID 8769.
Evidence is to be considered “‘favorable to an accused,’” when, “if disclosed and used
effectively, it may make the difference between conviction and acquittal.” United States v. Bagley,
473 U.S. 667, 676 (1985), quoting Brady, 373 U.S. at 87; citing Napue v. Illinois, 360 U.S. at 269.
Of the four statements by Chavis in the memorandum detailed above, the Court agrees with the
Warden that the first three, in which he inquired how much time he would serve if he made a deal,
and stated that he did not fire the fatal shot, are not favorable to Petitioner, as they do not support
Petitioner’s argument that he was not involved in the murders. However, Chavis’s fourth
statement—that Langbein was the other shooter—is favorable to Petitioner, as Chavis and
Petitioner were the only two people tried for the murders. Moreover, that statement is consistent
with the statements on the recordings, in which Chavis and another individual identified Langbein
as the person who actually killed the victims. Thus, Petitioner has met the favorability prong of
Brady as to: (a) the fourth statement in the memorandum; and (b) the recordings themselves.
D.
Materiality
The Warden argues that, for the reasons discussed above regarding favorability, the
memorandum and recordings are not material, exculpatory evidence, and thus, cannot form the
basis of a Brady violation. In support, he claims that Petitioner, apart from a two-line exchange
between Chavis and an “unidentified female,” has failed to describe the substance of any of the
other conversations on the tapes he has obtained, much less explain how those conversations are
material, or are reasonably likely to lead to the discovery of material, exculpatory evidence (Memo.
in Opp., ECF No. 122, Page ID 8759, citing Discovery Motion, ECF No. 120, Page ID 8738).
21
Further, as the Petitioner “already had ample reason to investigate Langbein as a possible alternate
suspect[,]” id., and his trial counsel extensively cross-examined Langbein, it is unclear that those
isolated statements, by themselves, were so exculpatory that the jury’s conviction and death
recommendation were not worthy of confidence. Id.
Petitioner reiterates that the Court, in its materiality analysis, must consider the statement
and recordings in conjunction with the rest of the evidence of record (Reply, ECF No. 123, Page
ID 8771, citing Kyles, 514 U.S. at 436; Gumm, 775 F.3d at 364). He argues that, had his trial
counsel been in possession of the memorandum and recordings, counsel would have used them
“to suggest Langbein’s guilt and argue that he attempted to frame Bethel.” Id., Page ID 8770,
citing D'Ambrosio v. Bagley, 527 F.3d 489, 498-99 (6th Cir. 2008). At the very least, Petitioner
claims, trial counsel would have had reason to ask Langbein on cross-examination whether he, and
not Petitioner, had committed the murders for which Petitioner was convicted. Moreover,
Petitioner argues, the memorandum and recordings would have been valuable additional evidence
with which to impeach Langbein and undermine his credibility to the jury. Thus, he claims, the
evidence would be admissible for that purpose. Id., Page ID 8775, citing Ohio. R. Evid. 613; State
v. Reed, 155 Ohio App. 3d 435, 2003-Ohio-6536, ¶ 30 (2nd Dist.); Bies, 775 F.3d at 400 n.9; Gumm,
775 F.3d at 369.
In Kyles, the Supreme Court set forth its standard for the materiality prong in Brady by
holding that: “The question is not whether the defendant would more likely than not have received
a different verdict with the evidence, but whether in its absence he received a fair trial, understood
as a trial resulting in a verdict worthy of confidence.” 514 U.S. at 434. Neither the favorable
statement in the memorandum nor the recordings, as described by Petitioner, meets that standard.
Petitioner concedes that trial counsel had ample reason to investigate Langbein as a suspect, and
22
Petitioner has failed to explain how the statements contained in the memorandum and recording
were so inculpatory as to Langbein that, had they been disclosed to his trial attorneys, would have
caused them counsel to conduct a more aggressive cross-examination of the State’s “star witness.”
Nor has Petitioner explained why the statement and recordings are of such import that, had they
been disclosed, counsel’s otherwise-reasonable trial strategy in deciding not to ask Langbein if he
had committed the murders would be transformed into de facto malpractice. In sum, he has failed
to explain why his claim as to trial counsel’s not aggressively cross-examining Langbein arises
under Brady rather than under Strickland.
Moreover, even assuming that the statements would be admissible against Langbein for
impeachment purposes, their introduction still would not have undermined confidence in the
verdict, as is required under Kyles. These statements must be viewed in light of the evidence that
was introduced against Petitioner at trial. See Eakes, 592 F. App’x at 427 (“The materiality of
Brady evidence depends almost entirely on the value of the undisclosed evidence relative to the
other evidence produced by the state.”). Petitioner confessed the murders to his then-girlfriend,
Theresa Cobb Campbell, who recounted Petitioner’s confession at trial (Opinion & Order, ECF
No. 118, Page ID 8722, citing State Court Record, ECF No. 11-4, Page ID 237). Further, Petitioner
made a proffer as part of a later-vacated plea agreement, which “was introduced at trial[,]” id.,
Page ID 8723, and therein, Petitioner described his commission of the murders with Chavis in
great detail:
[K]illing 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
23
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.
(State Court Record, ECF No. 11-4, Page ID 236).
Thus, even if—(a) the State had disclosed the memorandum and recordings to Petitioner
prior to trial; (b) Petitioner’s counsel had used the evidence to impeach Langbein; and (c) the jury
found Langbein to be less credible, or even incredible, as a result of the impeachment evidence—
there was more than enough evidence presented from which the jury could have reasonably found
Petitioner to be guilty and recommended a death sentence. In sum, the evidence does not
undermine confidence in the verdict, and thus is not material under Brady. Kyles, 514 U.S. at 434.
E.
Requested Discovery
For the reasons discussed above Court cannot conclude that Petitioner has made a prima
facie showing of a Brady violation as to the exculpatory statement and the recordings, as described
by Petitioner. Given the similarities between the newly-obtained evidence and the requested
discovery materials (Discovery Motion, ECF No. 120, Page ID 8734-35), the Court does not have
“reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate
that he is confined illegally and is therefore entitled to relief[.]” Harris, 394 U.S. at 300.
Accordingly, Petitioner’s instant Motion is no more well-taken than his previous one.
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CONCLUSION
For the foregoing reasons, the Court DENIES Petitioner’s Renewed Motion for Leave to
Conduct Discovery (ECF No. 120) and Petitioner’s Motion to Stay (ECF No. 125). Petitioner’s
Amended Petition for Writ of Habeas Corpus (ECF No. 48) remains pending before this Court.
November 13, 2018.
s/ Michael R. Merz
United States Magistrate Judge
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