Bethel v. Warden Ohio State Penitentiary

Filing 96

DECISION AND ORDER - Petitioner's Motion for anEvidentiary Hearing (ECF No. 88) is DENIED. Signed by Magistrate Judge Michael R. Merz on 5/1/2017. (kpf)

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

Case No. 2:10-cv-391
:

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

-vsDAVID BOBBY, Warden,
:
Respondent.

DECISION AND ORDER

This capital habeas corpus case is before the Court on Petitioner’s Motion for an
Evidentiary Hearing (ECF No. 88). The Warden opposes the Motion (Opposition, ECF No.
90) and Petitioner has filed a Reply Memorandum in support (Reply, ECF No. 91).
Petitioner seeks an evidentiary hearing on his Fifteenth Ground for Relief which
reads: “Bethel 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 defense.” (First Amended Petition, ECF No. 48, PageID 650.) The claim arises under
Brady v. Maryland, 373 U.S. 83 (1963), and relates to a report from Agent Ozbolt of the
federal Bureau of Alcohol, Tobacco, and Firearms that Donald Langbein told Agent Ozbolt
that Langbein told Shannon Williams, while an inmate of the Franklin County Jail, that
Langbein “was involved in a homicide with an individual who is now incarcerated in the
Federal Penitentiary at Ashland, Kentucky, where the victim was shot seventeen times.” Id.
at ¶ 212, PageID 650-51. The First Amended Petition further avers that Jeremy Chavis, who

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was Petitioner’s co-defendant in this case, was at the time of the statement incarcerated at
FCI Ashland. Id. at ¶ 213. Petitioner’s inference is that Langbein admitted killing the victims
in this case with Jeremy Chavis. Id.
The Ozbolt Report was the focus of Petitioner’s prior Motion for Discovery in this
case (ECF No. 60). The Magistrate Judge denied that Motion in part because the Ohio courts
had decided the Ozbolt Report was not Brady material (Decision and Order, ECF No. 69,
PageID 8303). That determination had been made as part of the decision of Judge Richard
Frye of the Franklin County Court of Common Pleas on Bethel’s Motion for New Trial
which was heavily based on the Ozbolt Report. The Magistrate Judge’s decision recited key
portions of Judge Frye’s decision and concluded:
When a state court decides on the merits a federal constitutional
claim later presented to a federal habeas court, the federal court
must defer to the state court decision unless that decision is
contrary to or an objectively unreasonable application of clearly
established precedent of the United States Supreme Court. 28
U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. ___, 131 S.
Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005);
Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v.
Taylor, 529 U.S. 362, 379 (2000). Bethel has not demonstrated that
Judge Frye’s application of Brady is objectively unreasonable.
(ECF No. 679, PageID 8303, aff’d., ECF No. 85.)
Petitioner’s Motion recognizes that there are substantial limitations on evidentiary
hearings in federal habeas corpus, limitations arising from the AEDPA as codified at 28 U.S.C. §
2254(e)(2) and Cullen v. Pinholster, 563 U.S. 170 (2011). His basic premise for an evidentiary
hearing here is his claim that “the state court’s rulings on Bethel’s 15th ground for relief are
unreasonable under § 2254(d)(1) and/or § 2254(d)(2) [and] therefore this court must review them
under the de novo standard of review.” (Motion, ECF No. 88, PageID 8468.) He asserts this

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removes Pinholster as a barrier. Id., citing Harris v. Haeberlin, 752 F.3d 1054, 1058 (6th Cir.
2014). Bethel separates his argument between § 2254(d)(1) and (d)(2) and this Decision will
analyze them separately.

I.

The Ohio Courts Reasonably Decided the State Did Not Violate Brady

Asserted Unreasonable Application of Clearly Established Federal Law

The standard for habeas review under 28 U.S.C. § 2254(d)(1) of a state court decision on
a federal constitutional claim is not whether the state court was wrong, but whether it was so
wrong that there is no possibility for “fairminded disagreement.” White v. Woodall, 134 S. Ct.
1697 (2014), quoting Harrington v. Richter, 562 U.S. 86 (2011); see also Woods v. Etherton, 578
U.S. ___, 136 S. Ct. 1149 (2016).

“A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as “fair-minded jurists could disagree”
on the correctness of the state court decision,” Harrington v.
Richter, 562 U.S. 86, 101 (2011)(quoting Yarborough v. Alvarado,
541 U.S. 652, 664 (2004). The state court decision must be “so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” White v. Woodall, 572 U.S. ___, ___
(2014), slip op. at 4.
Woods, 136 S. Ct. at 1151.
Bethel begins his § 2254(d)(1) argument with the unexceptionable premise that Brady
extends to impeachment evidence as well as exculpatory evidence (Motion, ECF No. 88, PageID
8475, citing Youngblood v. West Virginia, 547 U.S. 867, 869 (2006)). The Supreme Court

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adopted that proposition well before Youngblood. Strickler v. Greene, 527 U.S. 263, 281-82
(1999); Brooks v. Tennessee, 626 F.3d 878, 890 (6th Cir. 2010). The Supreme Court has in fact
rejected any distinction between impeachment evidence and exculpatory evidence in the Brady
context. Connick v. Thompson, 563 U.S. 51, 99, n. 16 (2011), quoting United States v. Bagley,
473 U.S. 667, 676 (1985).
But Bethel does not argue Judge Frye ignored this law and indeed he did not. At page
seven of his Decision,1 he recites the governing Brady standard, including impeachment
evidence as embodied in Irick v. Bell, 565 F.3d 315 (6th Cir. 315):
In Brady [v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215], the 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." Id. at 87, 83 S.Ct. 1194. '"There are three
components of a true Brady violation: the evidence at issue must
be favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must have been suppressed
by the State, either willfully or inadvertently; and prejudice must
have ensued."' Owens [v. Guida (6th Cir. 2008)], 549 F.3d [399]
at. 415 (quoting Strickler v. Greene, 527 U.S. 263, 281-82, 119
S.Ct. 1936, 144 L.Ed.2d 286 (1999)). A defendant is prejudiced
when there is "a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different." Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct.
1555, 131 L.Ed.2d 490 (1995) (quoting United States v. Bagley,
473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)).
(ECF No. 11-2, PageID 205.)
Bethel’s argument instead is that the Ohio courts “unreasonably downplayed the
importance of the suppressed evidence, reasoning that Langbein had already been cross1 Judge Frye’s Decision does not recie all the relevant contextual facts for undersanding his Decision. Instead”[f]Familiarity with the Supreme Court's opinion in State v. Bethel,
110 Ohio St. 3d 416, 2006-0hio-4853, 854 N.E.2d 150, with Judge Miller's sentencing opinion rendered pursuant to R.C. 2929.03(F), and with the prior decisions by this court and
the Tenth District Court of Appeals is assumed.

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examined with an inference that he committed the murders.” (Motion, ECF No. 88, PageID
8475.)
This Court disagrees. A critical question with any Brady claim is materiality – how
impeaching is the suppressed evidence? The Ozbolt Report is not a statement by Langbein upon
which he could have been cross-examined. It is a statement by Shannon Williams and therefore
double hearsay as to anything Langbein said. Bethel argues that “[q]uestions of credibility are
properly for the jury . . .” (ECF No. 88 at PageID 8475), but post-trial Brady claims face a
materiality hurdle. As Judge Frye found, “Bethel’s 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.” (Decision, ECF No.
11-2, PageID 206.) Judge Frye notes that the purported statement by Langbein to Williams
occurred in the same short time period when Bethel made a proffer and made statements to his
girlfriend Theresa Cobb Campbell “unequivocally admit[ing] killing Reynolds and Hawks with a
9 mm handgun.” Id. at PageID 207.
The Franklin County Court of Appeals also found the Ozbolt Report lacked materiality.
State v. Bethel, 2010 Ohio App. LEXIS 3242 (10th Dist. Aug. 17, 2010), appellate jurisdiction
declined, 2012 Ohio 4021, citing Kyles v. Whitely, 414 U.S. 419 (1995), the governing Supreme
Court precedent on materiality.
Once again, Bethel has failed to persuade this Court that the state court decisions are
objectively unreasonable beyond the possibility of fairminded disagreement.

Asserted Unreasonable Determination of the Facts

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Bethel also asserts the state court decision was based on an unreasonable determination
of the facts in light of the evidence presented in state court.
First of all, Bethel asserts the Franklin County Court of Appeals unreasonably determined
that the Ozbolt Report was not suppressed because “the State did not even dispute it.” (Motion,
ECF No. 88, PageID 8478.) That is a mischaracterization of the Tenth District’s decision. That
court did say, as Bethel claims, “it is not clear that the ATF report was ‘suppressed’ by either the
prosecution or the Columbus police.” State v. Bethel, supra, at ¶ 19. But as the court’s
subsequent discussion indicates, “suppression” in the Brady context is a mixed question of law
and fact. What Judge Frye had found was that the State conceded the Ozbolt Report was not
produced in discovery at trial, but that does not equate to an admission that it was suppressed.
As both state courts found, the Ozbolt Report as eventually obtained by Bethel’s investigator
came from the file of Bethel’s co-defendant Jeremy Chavis and does not contain Bethel’s name.
The State never conceded that the Report was “suppressed” as Bethel argues (Motion, ECF No.
88, PageID 8478).
Second, Bethel argues the state courts were incorrect in concluding Bethel’s counsel
could have investigated Shannon Williams, Agent Ozbolt’s source. Judge Frye found that
Williams’ name was “listed by the State in pretrial discovery in this case as a witness, but one
without a known address.” (Decision, ECF No. 11-2, PageID 202.) Bethel does not dispute the
accuracy of this finding by Judge Frye. Rather, he claims the court of appeals went astray when
it concluded, on the basis of the trial court record, that “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.” State v. Bethel, supra, ¶ 20.
Bethel objects that the investigator for his first set of attorneys, Gary Phillips, testified at

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trial that he did no investigation (Motion, ECF No. 88, PageID 8479, citing Tr. Vol. 14, ECF No.
56-15, PageID 7289). That is an accurate characterization of Phillips’ testimony. According to
Bethel, his second set of attorneys tried but was unable to obtain addressed for witnesses before
they withdrew and his third set of attorneys also did not know of the content of the Ozbolt
Report. It appears to this Court unlikely that Bethel’s second or third set of attorneys spoke to
Williams, because he flat out refused to speak to Bethel’s habeas counsel or the State in 2008.
Thus the Tenth District’s “entirely possible” is speculative if it refers to finding Williams of no
value to the defense after interviewing him. But this speculation by the Tenth District does not
prove a violation of § 2254(d)(2) because the Tenth District did not base its decision on that
possible fact; the court gave many other reasons for affirming Judge Frye.
Third, Bethel objects to the Tenth District’s finding that “it is wholly speculative as to
whether Langbein’s statements are referring to the homicides at issue here.” (Motion, ECF No.
88, PageID 8480, quoting State v. Bethel, supra, at ¶ 21.) Bethel argues “It is objectively
unreasonable for an appellate court to doubt the connection to Bethel’s case when it was the
Columbus Division of Police that made the connection.” (Motion, ECF No. 88, PageID 8480,
emphasis sic). As Bethel’s argument plainly implies, the Columbus Police made the connection
in 2008 in response to a public records request. The request itself has not been furnished to this
Court. As to its content, the record contains the Affidavit of Martin Yant who avers that he
“filed a public records request on September 25, 2008, for any and all records in the possession
of the Columbus Division of Police concerning Robert Bethels’ case.” (ECF No. 55-7, PageID
4610.) Assuming without knowing that this is what was requested, it is a fair inference that in
2008 the person producing records from Columbus Police made the connection.

But the

argument is misleading – it does not show that anybody at Columbus Police made that

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connection in 2001 at the time of pre-trial discovery. That is the relevant time for the Brady
claim.
Besides production of the document in 2008, Bethel points to other facts in the state court
record which he says demonstrate that the Ozbolt Report was connected to the Bethel case (ECF
No. 88, PageID 8481). However, he points to no place in the state court record where he called
this evidence to the attention of the court of appeals. Whether or not the connection is “wholly
speculative,” Bethel does not dispute the underlying findings of act by Judge Frye that
undermine the connection: Bethel’s name is not on the Report, it was stored in the Chavis file,
and inconsistencies between the murders as described at trial and the murders as Langbein
allegedly described them to Williams.
Lastly, Bethel criticizes the court of appeals’ statement
[*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.

State v. Bethel, supra, partially quoted at ECF No. 88, PageID 8482. Bethel reasons that “[if]
Langbein was merely telling Williams that he was an informant in the case against Bethel and
Chavis, then Williams would have had no reason to call Agent Ozbolt and report this to him.”
(ECF No. 88, PageID 8482-83.) Bethel also asserts the idea that Langbein would tell Williams

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that Langbein was a snitch is “incredulous.”2 But the Court has heard of far more incredible
conversations between informants and other jail inmates and Williams’ report may merely have
been an attempt to curry favor with Ozbolt.
In sum, Bethel has not proved that the Tenth District’s affirmance of Judge Frye’s
decision is based on an unreasonable determination of the facts in light of the evidence. The
Tenth District cited many facts from Judge Frye’s decision as a basis for the affirmance.
Bethel’s quibbles are at best arguments about characterization of the evidence rather than
demonstrations that the Ohio courts ignored it.

II.

Bethel’s Brady Claim is Procedurally Defaulted

Bethel’s first presentation of his Brady claim to the Ohio courts was made in his Motion
for New Trial Based on Newly Discovered Evidence, filed April 13, 2009 (ECF No. 11-13).
Judge Frye denied Bethel leave to file his new trial motion. As he noted in his Decision, Ohio
Crim. R. 33(C) provides a “strict time limitation” on motions for new trial unless a defendant can
prove by clear and convincing evidence “that he was unavoidably prevented from the discovery
of the evidence” (Decision, ECF No. 11-2, PageID 203).
Judge Frye found that Bethel had not met this burden.
The point is, how this short report even found its way into the
Bethel file produced in 2008 under a public records request has
never been shown or suggested circumstantially. Without that,
neither direct nor circumstantial evidence proves that Bethel was
unavoidably prevented from discovering the ATF Report until
November, 2008.
2 Surely “incredible” is intended.
3 Although this document is captioned “Motion for New Trial,” Judge Frye’s decision shows that it was accompanied by a Motion for Leave to File a Delayed Motion for New
Trial. Ohio practice allows for new trial motions based on newly discovered evidence, but a defendant must first obtain permission to file if more than 120 days have elapsed since
judgment. Ohio R. Crim. P. 33.

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Id. at PageID 203-04. Whether or not they talked to him before trial, Bethel’s attorneys were
aware of Shannon Williams as a potential witness at the time for trial. Although he refused to be
interviewed in April 2009, the record “does not show that he declined to be interviewed on any
occasion” prior to that. Id. at PageID 204. The record reflects that the investigator who made the
public records request that yielded the Ozbolt Report did so promptly after he was retained by
Bethel’s mother in mid-September 2008 and that he got the response from the Columbus Police
Division within less than five weeks. But Bethel was convicted in August 2003 and Judge Frye
was given no persuasive explanation of why it took so long to hire the investigator. In fact,
Judge Frye also noted that it had taken from November 2008 until April 2009 to file the motion
for leave to file a delayed motion for new trial and Bethel had not satisfactorily explained that
delay.

Based on that lack of clear and convincing evidence, Judge Frye held Bethel had

procedurally defaulted his Brady claim, although he also provided an alternative merits analysis
discussed above (Decision, ECF No. 11-2, PageID 205).
The Sixth Circuit Court of Appeals requires a four-part analysis of a possible procedural
default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc); Eley v. Bagley, 604
F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02
(6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).

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Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting
Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
Ohio plainly has a relevant procedural rule placing strict time limits on motions for new
trial which Judge Frye enforced against Bethel. In the interest of finality of litigation, Ohio’s
time limits are adequate and independent of federal law. Bethel has not demonstrated any
excusing cause and prejudice for failing to meet that time limit. Therefore his Fifteenth Ground
for Relief does not warrant an evidentiary hearing and should eventually be dismissed as
procedurally defaulted.

Conclusion

Based on the foregoing analysis, Bethel’s Motion for Evidentiary Hearing is DENIED.

May 1, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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