Bethel v. Warden Ohio State Penitentiary
Filing
73
SUPPLEMENTAL OPINION ON PETITIONER'S MOTION FOR DISCOVERY - Upon reconsideration of the Motion for Discovery in light of the Objections, the Magistrate Judge again concludes Bethel has not shown good cause to pursue this discovery. Signed by Magistrate Judge Michael R Merz on 6/19/2014. (kpf1)
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
DISCOVERY
This capital habeas corpus case is before the Court on Petitioner=s Objections (Doc. No.
70) to the Magistrate Judge’s Decision and Order Denying Discovery (“Decision,” Doc. No. 69).
District Judge Barrett has recommitted the matter to the Magistrate Judge for reconsideration in
light of the Objections (Doc. No. 72). Although Respondent took an extension of time to
respond to the Objections (Doc. No. 71 and notation order granting), none has been filed.
The discovery sought by Bethel was described in the Decision as follows:
1.
Depositions of Donald Langbein, Shannon Williams (a.k.a. “Puff”), and Daniel F. Ozbolt
in support of the Fifteenth Ground for Relief;
2.
Records deposition to obtain all files in the possession of the
Franklin County
Prosecutor’s Office concerning Donald Langbein;
3.
Records deposition to obtain all files in the possession of the Franklin County Sheriff’s
Office and the Columbus Police Department concerning Donald Langbein;
4.
Records deposition to obtain all files in the possession of the Federal Bureau of Alcohol,
1
Tobacco, and Firearms concerning Donald Langbein;
5.
Records deposition to obtain all files in the possession of the Franklin County
Prosecutor’s Office concerning Shannon Williams (a.k.a. “Puff);
6.
Records deposition to obtain all files in the possession of the Franklin County Sheriff’s
Office and the Columbus Police Department concerning Shannon Williams (a.k.a. “Puff);
7.
Records deposition to obtain all files in the possession of the Federal Bureau of Alcohol,
Tobacco, and Firearms concerning Shannon Williams (a.k.a. “Puff);
8.
Access to all materials that the State’s experts relied upon in conducting ballistics
Analyses;
9.
Access to all materials that the State’s experts relied upon in conducting forensics
Analyses; and
10.
The information requested in Doc. No. 50 and ordered preserved in Doc. No. 53.
These items were described in the Decision as Requests No. 1-10 and these same
references will be used here. Request No. 10 is no longer in issue.
Standard of Review
As Petitioner notes, a motion for discovery in a habeas corpus case is a non-dispositive
pretrial motion which a magistrate judge has authority to decide, subject to review by the District
Judge to whom the case is assigned. Fed. R. Civ. P. 72(a) provides “[t]he district judge in the
case must consider timely objections and modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” Whether to grant discovery in a habeas case is neither a fact
question, reviewable for clear error, nor a purely legal question, reversible if “contrary to law.”
2
Rather a habeas petitioner is not entitled to discovery as a matter of course, but only upon a factspecific showing of good cause and in the Court’s exercise of discretion. Rule 6(a), Rules
Governing § 2254 Cases; Bracy v. Gramley, 520 U.S. 899 (1997); Harris v. Nelson, 394 U.S.
286 (1969); Byrd v. Collins, 209 F.3d 486, 515-16 (6th Cir. 2000). “An abuse of discretion
occurs if the [deciding judge] relies on clearly erroneous findings of fact, applies the wrong legal
standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear
error of judgment.” In re Whirlpool Corp. Front-Loading Washer Prods. Liability Litig., 678
F.3d 409, 416 (6th Cir. 2012). A reviewing court will reverse for abuse of discretion only if it is
left with a definite and firm conviction that the trial court committed a clear error of judgment.
Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir. 1996); Logan v. Dayton Hudson Corp., 865
F.2d 789, 790 (6th Cir. 1989).
In deciding a nondispositive matter, the magistrate judge is exercising the discretion
granted the court under either statute or rules, review is for abuse of discretion. Snowden v.
Connaught Laboratories, 136 F.R.D. 694, 697 (D. Kan. 1991); Detection Systems, Inc. v.
Pittway Corp., 96 F.R.D. 152, 154 (W.D.N.Y. 1982); Doe v. Marsh, 899 F. Supp. 933, 934
(N.D.N.Y. 1995); Commodity Futures Trading Comm’n v. Standard Forex, Inc., 882 F. Supp.
40, 42 (E.D.N.Y. 1995); Bass Public Ltd. Co. v. Promus Cos., Inc., 868 F. Supp. 615, 619
(S.D.N.Y. 1994); In re Application for Order for Judicial Assistance in Foreign Proceedings,
147 F.R.D. 223, 225 (C.D. Cal. 1993); Schrag v. Dinges, 144 F.R.D. 121, 123 (D. Kan. 1992).
Specific Objections
Effect of the State Court Rulings on Bethel’s Brady v. Maryland Claim
3
Bethel’s Requests No. 1-7 are in support of his Fifteenth Ground for Relief made under
Brady v. Maryland, 373 U.S. 83 (1963).
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.
(Amended Petition, Doc. No. 48, PageID 650). A document known as the Ozbolt Report
prepared by ATF Special Agent Daniel Ozbolt was obtained by Bethel through a public records
demand in November 2008. Based on a claim that the Ozbolt Report constitutes Brady material,
Bethel filed a new trial motion in the Franklin County Common Pleas Court which was denied
September 3, 2009 (Doc. No. 11-1, PageID 199-208). Judge Frye decided both that Bethel’s
new trial claim was untimely1 and that the Ozbolt Report was not Brady material. Id. at PageID
206. The court of appeals affirmed this decision. State v. Bethel, 2010-Ohio-3837, ¶ 3, 2010
Ohio App. LEXIS 3242 (10th Dist. 2010)(in the Decision and hereinafter Bethel New Trial
Appeal).
Bethel claims both that the Ozbolt Report is Brady material and that the material he will
discover if Requests No. 1-7 are granted will also be Brady material. The Decision held that
Judge Frye’s conclusion that the Ozbolt Report was not Brady material was entitled to AEDPA
deference and that precluded relying on it to support additional discovery (Decision, Doc. No.
69, PageID 8303).
Bethel asserts, without showing any of the reasoning behind the assertion, that requiring
him to show Judge Frye’s decision is objectively unreasonable subjects him to a “higher
standard” than the good cause standard of Habeas Rule 6 (Objections, Doc. No. 70, PageID
1
Bethel had not shown by clear and convincing evidence that he was prevented from discovering the Ozbolt Report
between trial and November 2008 or when the new trial motion was filed in April 2009. Id. PageID 203.
4
8310). Not so. The good cause standard under Habeas Rule 6 cannot be extracted from its
context to stand alone. There can only be good cause to discover evidence in support of a claim
which ultimately can prevail in habeas corpus. Bracy v. Gramley, 520 U.S. 899 (1997), itself,
holds that 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 essential elements of a Brady claim
are that the State has withheld material exculpatory evidence from a criminal defendant. Bethel
relies on his claim that the Ozbolt Report is Brady material both substantively and as a premise
for asserting that more Brady material will be found if he is permitted to search in places
associated with the Ozbolt Report. The Decision merely holds that his premise is wrong: since
the Ozbolt Report is not Brady material, its nondisclosure does not support an inference that
there is other Brady material where it was found (Decision, Doc. No. 69, PageID 8303). This is
not applying a “higher standard” than good cause, it is elucidating one way in which Bethel has
failed to show good cause.
Bethel also objects to the Decision’s reliance on Judge Frye’s opinion rather than that of
the Tenth District affirming Judge Fry (Objections, Doc. No. 70, PageID 8311-12). As the
Decision notes, Judge Frye found that Bethel’s new trial claim was procedurally barred and also
without merit.
Bethel appealed on both grounds and the court of appeals found the first
assignment of error, dealing with the procedural default, was moot because it affirmed his ruling
on the merits. Bethel New Trial Appeal, supra, at ¶ 16.
Bethel criticizes the Decision’s reliance, in part, on Judge Frye’s opinion because it was
not “the last explained state-court judgment” on the new trial motion (Objections, Doc. No. 70,
PageID 8311, citing Ylst v. Nunemaker, 501 U.S. 797, 805 (1991).) It is correct that the Bethel
5
New Trial Appeal decision is the last-reasoned state court opinion on the merits of Bethel’s
Brady claim and Bethel is correct that that is the decision which is entitled to AEDPA deference
on the merits of his Ground Fifteen. But Judge Frye’s decision is the last reasoned state court
opinion on the procedural default of that claim; the court of appeals did not reverse his decision
on that point, but found the assignment of error moot and went on to decide the merits of the
Brady claim. Because of this decision on the merits, Bethel argues, there is no procedural
default (Objections, Doc. No. 70, PageID 8312). 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). In this case we have an unreversed, explained trial court ruling on the procedural issue
and a court of appeals affirmance of the same trial court’s ruling on the merits. It does not
appear under those circumstances that the state courts have failed to enforce the relevant
procedural rule.
Bethel also criticizes the Decision for stating he had not demonstrated Judge Frye’s
application of Brady was objectively unreasonable (Objections, Doc. No. 70, PageID 8311).
Having made that correct point, Bethel then fails to even attempt to show that the court of
appeals’ decision on the merits of the Brady claim is objectively unreasonable. That decision
was as follows:
[*P17] In his second assignment of error, appellant contends the
trial court erred in denying his motion for new trial based on
evidence material to his defense that was in the possession of the
state prior to trial but not submitted to him until the fulfillment of
the public records request. In Brady v. Maryland (1963), 373 U.S.
83, 87, 83 S.Ct. 1194, 1196-97, 10 L. Ed. 2d 215, the United States
Supreme Court held that the "suppression by the prosecution of
evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution."
6
[*P18] Evidence suppressed by the prosecution is "material"
within the meaning of Brady only if there exists a "reasonable
probability" that the result of the trial would have been different
had the evidence been disclosed to the defense. Kyles v. Whitley
(1995), 514 U.S. 419, 433-34, 115 S.Ct. 1555, 1566, 131 L. Ed. 2d
490; see also United States v. Bagley (1985), 473 U.S. 667, 105
S.Ct. 3375, 87 L. Ed. 2d 481. As the United States Supreme Court
has stressed, "the adjective ['reasonable'] is important. 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." Kyles, 514 U.S. at 434, 115 S.Ct.
at 1555; see also Strickler v. Greene (1999), 527 U.S. 263, 289-90,
119 S.Ct. 1936, 1952, 144 L. Ed. 2d 286.
[*P19] 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.
[*P20] Though appellant's attorneys who ultimately tried the case
stated in their affidavits that they had not heard of Williams in the
context of appellant until seeing the ATF report, we note, as did
the trial court, that Williams was named on the state's witness
disclosure list. Thus, it is entirely possible that appellant's previous
counsel, of which there were several, did investigate Williams and
found him to be of no value to the defense.
[*P21] Additionally, 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
7
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.
[*P22] Most importantly perhaps is that the evidence presented
against appellant consisted of more than just his statements made
to Langbein. The evidence also consisted of appellant's statements
to Campbell and his own admission as contained in his proffer.
Moreover, 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
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.
[*P23] 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 authorities 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.
[*P24] In short, nothing in the ATF report "could reasonably be
taken to put the whole case in such a different light as to
undermine confidence in the verdict." Kyles, 514 U.S. at 435, 115
S.Ct. at 1555. Finding no Brady violation and finding the "newly
discovered evidence" forming the basis of appellant's motion fails
to satisfy the standard for a new trial, we find no error in the trial
court's decision denying appellant's motion for a new trial.
Accordingly, appellant's second assignment of error is overruled.
[*P25] For the foregoing reasons, appellant's second assignment
of error is overruled, appellant's first assignment of error is moot,
and the judgment of the Franklin County Court of Common Pleas
is hereby affirmed.
Bethel New Trial Appeal, supra. The Objections contain not a shred of analysis as to how this
8
decision is an objectively unreasonable application of Brady or even of how the Tenth District’s
analysis on the merits differs from Judge Frye’s.
Although conceding it is “relatively unimportant,” Bethel’s counsel think it is worth
almost a page of the Objections to argue the Decision misunderstands Ohio R. Crim. P.
33(C)(Objections, Doc. No. 70, PageID 8312-13). At footnote 2 the Decision states
Ohio law provides a 120[-]day limit on motions for new trial based
on newly discovered evidence unless the defendant was
unavoidably prevented from discovering the evidence. Ohio R.
Crim. P. 33(C). More than 120 days expired between Yant’s
discovery of the Ozbolt Report and the filing of the motion for new
trial.
The Magistrate Judge fully understands that Ohio law does not set a time limit on when a
defendant may move for a new trial on the basis of newly-discovered evidence if unavoidably
prevented from discovering it. State v. Davis, 131 Ohio St. 3d 1, 6-7 (2011). The point of the
footnote is that if Bethel had discovered the new evidence in the first 120 days after the verdict,
he would have been obliged to file by the 120th day, showing the amount of time Ohio courts
consider reasonable for finding new evidence and bringing it to the trial court’s attention. Here
Bethel was so lacking in diligence or so indifferent to the delay involved that he did not even
move for a new trial within the 120 days after he discovered Ozbolt Report, but instead waited
from November 2008 until April 2009. Of course Judge Frye found a lack of reasonable
diligence on Bethel’s part.
Federal Agency Report as Brady Material
Bethel objects to the Decision’s conclusion that “because ATF is a federal law
9
enforcement agency, nothing in its files would be Brady material.” (Objections, Doc. No. 70,
PageID 8313, quoting Decision, Doc. No. 69, PageID 8303.) Bethel asserts that because this
was one investigation involving both state authorities and the ATF, the Ozbolt Report is not
excluded from Brady (Objections, Doc. No. 70, PageID 8313-14). Bethel notes that the Ozbolt
Report was produced to him from the Columbus Police Department, so it obviously was in that
file by the time of the response to Bethel’s public records request. But as Judge Frye and the
Tenth District noted “there is no indication as to when this report, titled ‘CHAVIS, Jeremy’ and
making no references whatsoever to [Bethel], came into the possession of the police department
or when it was placed in connection with the file of [Bethel].” Bethel New Trial Appeal, supra, ¶
19.
Bethel notes that the Supreme Court “grouped FBI documents into the materials it was
considering as Brady material” (Objections, Doc. No. 70, citing Cone v. Bell, 556 U.S. 449, 464
(2009)). In footnote 11 to his opinion for the majority in that case, Justice Stephens wrote:
In the course of federal habeas proceedings, Cone had obtained
access to files from the Federal Bureau of Investigation where he
found additional previously undisclosed evidence not contained in
the state prosecutor's case file. The suppressed FBI documents
make repeated reference to Cone's drug use and corroborate his
expert's representation that he had used drugs during his prior
incarceration for armed robbery. See App., at 26-28.
The Court did not hold that these documents were Brady material, and the fact that they had not
been in the state prosecutor’s case file supports the distinction made by the Ohio courts here
between material in the prosecutor’s file and material somehow related to a habeas petitioner
which is in the files of a federal law enforcement agency. There is no indication of why the FBI
had collected information on Cone’s drug use or how that information came into the possession
of Cone’s habeas counsel.
10
Bethel relies on California v. Trombetta. 467 U.S. 479, 487-88 (1984), to collapse the
distinction between state and federal law enforcement files. Trombetta does not support this
point. The relevant language is
One case in which we have discussed due process constraints on
the Government's failure to preserve potentially exculpatory
evidence is Killian v. United States, 368 U.S. 231 (1961). In
Killian, the petitioner had been convicted of giving false testimony
in violation of 18 U. S. C. § 1001. A key element of the
Government's case was an investigatory report prepared by the
Federal Bureau of Investigation.
Id.
Killian obviously was a federal prosecution in which FBI documents, if containing
exculpatory material, would have been disclosable under Brady. Nothing is said there about any
duty of one sovereign to disclose material in the other sovereign’s law enforcement files.
Finally, Bethel relies on Kyles v. Whitley, 514 U.S. 419, 437 (1995), for the proposition
that “the individual prosecutor has a duty to learn of any favorable evidence known to the others
acting on the government's behalf in the case, including the police.” Within the context from
which the quotation is taken, Justice Souter is discussing the obligation of a state prosecutor to
obtain Brady material from state police authorities. He outlines the contention of the State of
Louisiana which the Court is rejecting:
The State of Louisiana would prefer an even more lenient rule. It
pleads that some of the favorable evidence in issue here was not
disclosed even to the prosecutor until after trial, Brief for
Respondent 25, 27, 30, 31, and it suggested below that it should
not be held accountable under Bagley and Brady for evidence
known only to police investigators and not to the prosecutor. To
accommodate the State in this manner would, however, amount to
a serious change of course from the Brady line of cases. In the
State's favor it may be said that no one doubts that police
investigators sometimes fail to inform a prosecutor of all they
know. But neither is there any serious doubt that "procedures and
regulations can be established to carry [the prosecutor's] burden
and to insure communication of all relevant information on each
case to every lawyer who deals with it." Giglio v. United States,
11
405 U.S. 150, 154, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972). Since,
then, the prosecutor has the means to discharge the government's
Brady responsibility if he will, any argument for excusing a
prosecutor from disclosing what he does not happen to know about
boils down to a plea to substitute the police for the prosecutor, and
even for the courts themselves, as the final arbiters of the
government's obligation to ensure fair trials.
Id., (footnote omitted). There is no suggestion that the state prosecutors are obliged to obtain
material from federal law enforcement.2
All of the prior discussion in this section goes to the question, decided in the negative by
the state courts, of whether the Ozbolt Report was “suppressed.” Those courts also offered
extended analysis of why the Ozbolt Report is not exculpatory, analysis which the Objections do
not address. Bethel has failed to show that the Tenth District’s analysis on this point is an
objectively unreasonable application of Brady.
The Decision characterized Bethel’s counsels’ logic as follows: since the Ozbolt Report
[which we assert is Brady material] was in the police file and was undisclosed, there must be
more Brady material in the file. (Decision, Doc. No. 69, PageID 83030. The Objections
respond, “Bethel’s argument amounts to much more than this characterization of it.” (Doc. No.
70, PageID 8314-15.) Bethel then recounts that Shannon Williams told Agent Ozbolt “he’d keep
his ears open for further information. . . Bethel seeks that ‘further information.’” Id. at 8315.
Williams’ statement is not evidence that “further information” exists, but a promise by a
jailhouse informant3 of continued cooperation. On the basis of this slim foundation, Bethel
proposes to depose Langbein, Williams, and Ozbolt and examine “all files” relating to Langbein
and Williams in the possession of the Columbus Police Department, the Bureau of Alcohol,
2
Nor does Bethel cite any authority for the proposition that federal law enforcement authorities have a duty to
disgorge their files to state prosecutors.
3
Williams was incarcerated in the Franklin County Jail at the time he made the statement. Bethel New Trial Appeal,
supra, ¶ 10.
12
Tobacco, and Firearms, the Franklin County Prosecutor, and the Franklin County Sheriff.
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), cert. denied, 537 U.S. 831
(2002), 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 require an evidentiary hearing.’” Bowling
v. Parker, 344 F.3d 487, 512 (6th Cir. 2003), cert. denied, 543 U.S. 842 (2004), quoting Stanford,
266 F.3d at 460. Bethel has not met this burden on Requests No. 1-7.
Requests No. 8 and 9
Bethel made his eighth and ninth requests in support of his Eighteenth Ground for Relief
which reads:
Eighteenth Ground for Relief: Bethel’s counsel performed
ineffectively, to his prejudice, during the culpability phase of his
capital trial, violating his rights under the Sixth and Fourteenth
Amendments.
(Petition, Doc. No. 7, PageID 112.)
Pursuant to a plea agreement, Bethel had made a proffer in which he admitted
committing the two murders in this case. When it came time for him to carry out his part of the
bargain and testify against the co-defendant, he repudiated his confession. At his trial, he
attempted to show his confession was false by showing it was inconsistent with the physical
evidence. Bethel seeks access to all materials that the State’s experts relied upon in conducting
ballistics or forensics analyses in order to prove his trial counsel were ineffective by not
13
obtaining experts to assist.
The Decision analyzed this as a claim that, while his trial attorneys recognized the need
for such experts, the trial court refused funding (Decision, Doc. No. 69, PageID 8304-05.) The
Objections assert this was a misreading of the claim (Doc. No. 70, PageID 8317.) To the
contrary, the Decision quoted the following language from the Motion for Discovery: “Bethel
has never obtained the expert analyses he deserves, because although he diligently asked the
state courts for funding for these experts, his requests were denied.” (Decision, Doc. No. 69,
PageID 8304-05, quoting Motion, Doc. No. 60, PageID 7931.) Immediately following this
language, the Decision chided Bethel’s counsel for failing to provide any record references to the
asserted diligent state court requests. Now, in their Objections, counsel repudiate the theory they
initially set forth (which is still there in black and white at PageID 7931) and make a new claim
that Ground Eighteen is about trial counsel “not recognizing the need for such experts.”
(Objections, Doc. No. 70, PageID 8317, emphasis in the original.) One wonders if counsel read
the Motion before writing the Objections.
As the Decision notes, the claim of ineffective assistance of trial counsel on this basis
was raised and decided against Bethel by the Ohio Supreme Court on direct appeal. (Decision,
Doc. No. 69, PageID 8305, citing State v. Bethel, 110 Ohio St. 3d 416, ¶ 168.) On direct appeal,
the Ohio Supreme Court called the claim “speculative” in the absence of additional evidence. Id.
Bethel again raised the claim in post-conviction where the Tenth District held trial counsel were
not ineffective for failing to hire the requested experts because (1) they extensively argued the
inconsistencies of Bethel’s confession with the physical evidence and (2) the inconsistencies
were expectable, given that there were many years between the killings and the confession. State
v. Bethel, 2008 Ohio 2697, ¶¶ 2, 45-47, 2008 Ohio App. LEXIS 2322 (10th Dist. 2008). The
14
court of appeals noted that no new evidence had been submitted in post-conviction.
The Objections fault the Decision for “finding that this claim should have been brought
on direct appeal.” (Objections, Doc. No. 70, PageID 8318.) To the contrary, what the Decision
found was that the claim was in fact brought on direct appeal (Doc. No. 69, PageID 8305, citing
State v. Bethel, 110 Ohio St. 3d 416, ¶ 168).4 The Objections correctly note that the Ohio
Supreme Court held a claim based on what the expert testimony would have been was not
properly raised on direct appeal.
But when Bethel pursued post-conviction relief, the Decision found he added nothing to
the record in support of these claims (See Decision, Doc. No. 69, PageID 8306). Bethel now
objects that there was new evidence from a ballistics expert, John Nixon, and a forensic
pathologist, Werner Spitz (Objections, Doc. No. 70, PageID 8318, citing Return of Writ, Appx.
Doc. No. 54-9 at PageID 3002-10.) What the court of appeals held was “[t]he record before us is
void of any new evidence or factual information that would be material to the issues raised in the
petition . . . .” State v. Bethel, 2008 Ohio 2697, ¶ 2, 2008 Ohio App. LEXIS 2322 (10th Dist.
2008). In essence, the letters from Nixon and Spitz are not new evidence, but proposals to gather
new evidence by conducting additional testing.
At this point Bethel has made no proffer of what new expert testing might be expected to
reveal. They certainly have not shown that any results of such testing would be likely to support
the Eighteenth Ground for Relief.
The results of such testing could not be introduced in
evidence here because of the bar of Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388 (2011),
so this discovery request is in essence to obtain material which could be used to file another
4
The suggestion about how the claim could have been raised on direct appeal was based on the understanding,
quoted above, that the claim was counsel has asked for and been denied funds. The Decision noted that the Motion
had given no record references to support that claim.
15
proceeding in the state courts.5
Conclusion
Upon reconsideration of the Motion for Discovery in light of the Objections, the
Magistrate Judge again concludes Bethel has not shown good cause to pursue this discovery.
June 18, 2014.
s/ Michael R. Merz
United States Magistrate Judge
5
Counsel does not discuss the Pinholster problem or what state court proceeding might be in contemplation.
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