Caulley v. Warden Belmont Correctional Institution

Filing 19

ORDER granting 10 Motion for Leave to File; granting 11 Motion to Stay. Signed by Judge George C Smith on 3-7-12. (ga)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT J. CAULLEY,
Petitioner,

CASE NO. 2:11-CV-00195
JUDGE SMITH
MAGISTRATE JUDGE ABEL

v.
MICHELE MILLER, WARDEN,
Respondent.

OPINION AND ORDER
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. This matter is before the Court on the instant petition, Respondent’s Return of
Writ and Supplemental Response, and the exhibits of the parties. For the reasons that follow, the
Petitioner’s Motion for Leave to Amend the Petition, Doc. 10, is GRANTED. Petitioner’s Request
for a Stay, Doc. 11, also is GRANTED.
Petitioner is DIRECTED to keep the Court advised of the status of state court proceedings.

FACTS and PROCEDURAL HISTORY
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this
case as follows:
Charles and Lois Caulley were found bludgeoned and stabbed to death
in their home on Stringtown Road in Grove City, Ohio, on Sunday,
January 16, 1994. The deaths were reported in a 9–1–1 telephone call
made by appellant, who explained that he had gone to his parents
house and found them dead. At the time of the elder Caulleys' death,
appellant was employed by his father in the family plumbing business,
C.J. Caulley Plumbing. A lengthy and extensive investigation by the
Franklin County Sheriff's office was unable to develop any physical
evidence from which to conclusively link anyone to the murder. No

fingerprints were found on the knives used in the slayings, no
footprints detected other than those of the EMT personnel, and no
witnesses were found. Investigating officers pursued several leads
provided by tipsters, without success.
The investigating officers, however, remained suspicious of appellant
even while the investigation otherwise stalled for nearly three years.
The suspicions developed because of several perceived inconsistencies
between statements given by appellant after the murders. In addition,
several persons had noted that after the murders, appellant had a
scratch on his face and a bruise on his neck which looked like a thumb
print. Appellant explained the scratch by stating that his young son
had caused it. Authorities further concluded that appellant had both
the opportunity and motive to commit the crime, based upon
disagreements with his father over the future of the plumbing business,
the fact that appellant had, along with his two sisters, inherited
substantial amounts of money upon his parents' death, and that
appellant's sole alibi on the presumed night of the murder was
provided by his wife.
Almost three years after the murders, in December 1996, Franklin
County Sheriff's Detective Zachary Scott and Sergeant Tony Rich
flew to Houston, Texas, where appellant was employed as an
aeronautical engineer with Continental Airlines. They went to
appellant's workplace and requested that he voluntarily come to the
Harris County (Houston) Sheriff's office for an interview. Appellant
was transported in the officers' car and the interview began at
approximately 3:20 p.m. on the afternoon of December 3, 1996. After
a lengthy interview, which was punctuated by the arrival of appellant's
wife, appellant, over the vigorous protestations of his wife, produced
an incriminating statement which was tape-recorded by the officers.
Appellant stated that he had gone to his parent's home after attending
a hockey game on the night of Friday, January 14, 1994, where a
discussion with his father deteriorated into a confrontation, during
which his father pushed appellant causing him to fall onto and break
a table. According to appellant's statement, the argument thereafter
escalated until appellant hit his father with a baseball bat and then
stabbed him. When appellant's mother intervened, he struck and
stabbed her as well.
After appellant made his statement in Houston, the interviewing
officers telephoned Franklin County Assistant Prosecutor Dan Hogan,
who advised them that appellant could be arrested based upon his
2

statement. Appellant waived extradition and was returned to
Columbus the following day.

Appellant's wife also flew to Columbus shortly thereafter. Again on
the advice of Assistant Prosecutor Hogan, she was subsequently
arrested by the investigating officers for obstruction of justice, based
upon her prior statements providing an alibi for appellant on the night
of the murders. The investigating officers attempted to use Celeste
Caulley's arrest as leverage to encourage appellant, who in the interim
had refused to give a more detailed statement, to resume his dialogue
with the investigating officers. Celeste Caulley was soon thereafter
released and the charges against her dropped upon the personal
intervention of Assistant Prosecutor Hogan. No further incriminating
statements by appellant appear to have emerged from this particular
phase of the investigation.
Appellant was initially charged with two counts of aggravated murder
with death penalty specifications and one count of aggravated
robbery. Counsel for appellant duly filed a motion to suppress the
incriminating statement made by appellant in the Houston interview,
based upon violation of the right to counsel and the generally coercive
nature of the interview. The trial court held an extensive suppression
hearing prior to trial and ruled that the statement was admissible.
The matter thereafter proceeded to trial before a jury. The evidence
introduced by the prosecution consisted first and foremost of
appellant's confession given to the investigating detectives in Houston,
in the form of an audiotape and a transcript. In addition, the
prosecution presented testimony and other evidence intended to
buttress the confession by demonstrating that the physical
characteristics of the crime scene conformed to appellant's description
in his confession as to how he committed the killings, and to
demonstrate that appellant's personal, financial and career
circumstances, as well as his strained relationship with his father and
mother, gave him a motive to commit the murders.
The principal witness for the prosecution was Detective Scott, who
testified extensively regarding the circumstances surrounding
appellant's confession when interviewed in Houston. Detective Scott
also testified generally about the course of the investigation
immediately after the murders and over the three years that intervened
between the crimes and appellant's confession. On cross-examination,
3

Detective Scott agreed that during the course of his lengthy
investigation he had been unable to establish any physical evidence
linking appellant or anyone else to the crime, and that his continued
suspicion of appellant was based principally upon apparent financial
motive and appellant's reportedly strained relationship with his father.
This belief on the part of Detective Scott had been reinforced when he
sought assistance from the FBI in developing a profile of the killer.
The state also presented the testimony of former Assistant Prosecutor
Dan Hogan, who, in the interim, had taken a seat on the bench of the
Franklin County Common Pleas Court. Judge Hogan testified
extensively in order to explain his interaction with the investigating
detectives during appellant's interview, arrest, and subsequent
detention upon being transported to Columbus.
In addition, the state presented testimony of former employees of C.J.
Caulley Plumbing, who generally described appellant as not
particularly suited for the physical side of the plumbing business. Steve
Young, a former employee and master plumber, stated that he had left
the business when appellant returned to Columbus and began working
for his father full time. Young testified that he had previously turned
down an offer to buy the business himself and did not care to “carry”
appellant if appellant took over the business.
Several friends of the victims also testified regarding the generally
peaceful and well-regulated lives of the deceased couple, and their
sometimes strained relationship with their children, including appellant
and his wife. Friends also testified about the activities of the victims
on the night of Friday, January 14, 1994, the night on which the
prosecution postulated that the murders occurred, upon the victims
returning to their home at approximately midnight.
Forensic Pathologist Patrick Fardal, of the Franklin County Corner's
office, testified that he examined the victims on Sunday, January 16,
1994, the day they were found dead. Dr. Fardal concluded that both
victims died from a combination of stab wounds and blunt instrument
trauma to the head, although the precise cause of death could not be
isolated in either case, as any number of individual blows or wounds
could have proved fatal. Dr. Fardal's best estimate of the time of
death, however, did not completely coincide with the prosecution's
theory that the victims had been killed late Friday or early Saturday
morning prior to being found; with respect to Mr. Caulley, Dr. Fardal
concluded that he had died eight to twelve hours before examination
4

on Sunday, and with respect to Mrs. Caulley, more than two and less
than twelve hours before examination. For both victims this would
have put the time of death between late Saturday night and early
Sunday morning.
The prosecution also presented, over objection, the testimony of Todd
Elkins, a prisoner formerly held in the Franklin County Jail with
appellant. Elkins testified that appellant had stated that he wished to
kill the assistant prosecutor in his case and had offered Elkins $10,000
to do so. Elkins testified that appellant planned to profit from the
resultant delay in trial to obtain bond and flee.
Defendant testified on his own behalf, stating that he had not gone to
his parents' home between leaving work Friday afternoon and
discovering the bodies on Sunday morning, when he went to their
home to borrow a tool. He stated that he had gone straight home after
the hockey game Friday night, and subsequent testimony by his wife
Celeste supported this alibi. Appellant described his interview with
Detective Scott and Sergeant Rich in Houston, and stated that his
confession in Houston was completely untrue and that he had only
told the deputies what they seemed to want to hear in order to gain
time to consult an attorney and avoid being indicted on aggravated
murder charges, as the deputies had threatened to do.
The defense also presented the testimony of Dr. Richard Ofshe,
described as an expert on the field of interrogation, and particularly on
the production of false or unreliable confessions induced by certain
interrogation techniques. Dr. Ofshe even-tually opined that the
techniques employed by the investigating officers in the present case
produced a strong likelihood of unreliable or false confession.
The jury ultimately rejected the aggravated murder charges, but
returned verdicts finding appellant guilty of murder in the death of his
mother and voluntary manslaughter in the death of his father. The jury
found appellant not guilty of aggravated robbery. Appellant was
sentenced to fifteen years to life on the murder conviction and ten to
twenty-five years imprisonment on the manslaughter conviction, to be
served consecutively.
Since appellant's sentencing on October 20, 1997, the present appeal
has been considerably delayed by disputes over whether appellant is
entitled to appointed counsel due to his alleged indigency. These
questions were addressed by this court in State v. Caulley (Sept. 9,
5

1999), Franklin App. No. 98AP–74, unreported, and the matter is
now finally before us on appellant's direct criminal appeal.
State v. Caulley, No. 97AP-1590, 2002 WL 392191, at *1-4 (Ohio App. 10th Dist. March 14, 2002).
Petitioner raised the following assignments of error on appeal:
ASSIGNMENT OF ERROR ONE
(a) WHEN TESTIMONY AT A MOTION TO SUPPRESS
HEARING SHOWS THE ACCUSED REQUESTED AN
ATTORNEY DURING CUSTODIAL INTERROGATION, AND
NONE WAS PROVIDED, THE TRIAL COURT ERRED IN
DENYING THE MOTION TO SUPPRESS THE STATEMENT,
CONTRA THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION.
(b) WHEN TESTIMONY AT A MOTION TO SUPPRESS
HEARING SHOWS THE ACCUSED INVOKED HIS RIGHT TO
COUNSEL DURING INTERROGATION BY LAW
ENFORCEMENT OFFICIALS, THE TRIAL COURT ERRED IN
DENYING THE MOTION TO SUPPRESS THE STATEMENT,
CONTRA THE FIFTH, SIXTH AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION.
ASSIGNMENT OF ERROR TWO
WHEN AN ASSISTANT PROSECUTOR TESTIFIES IN THE
CASE IN CHIEF, AND DETAILS THE ADVICE HE GAVE
DETECTIVES DURING THE ARREST STAGES OF THE CASE,
THE RESULTING EFFECT WAS CONTRA THE FAIR TRIAL
RIGHTS OF THE ACCUSED, UNDER THE FOURTH, FIFTH,
SIXTH AND FOURTEENTH AMENDMENTS TO THE
CONSTITUTION.
ASSIGNMENT OF ERROR THREE
(a) WHEN TESTIMONY IS INTRODUCED BY THE
PROSECUTION THAT CLAIMS THE ACCUSED WAS
INVOLVED IN A CONSPIRACY TO HARM THE ASSISTANT
PROSECUTOR, AND THAT CLAIM IS SHOWN TO BE
UTTERLY GROUNDLESS, THE ACCUSED DOES NOT
RECEIVE A FAIR TRIAL, CONTRA THE FOURTH, FIFTH,
6

SIXTH AND FOURTEENTH AMENDMENTS
CONSTITUTION.

TO THE

(b) EVIDENCE OF THREATS CLAIMED TO BE MADE BY THE
ACCUSED AGAINST THE ASSISTANT PROSECUTOR, SHOWN
TO BE GROUNDLESS, ARE IMPROPER AS A MATTER OF
LAW, CONTRA THE FOURTH, FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS TO THE CONSTITUTION.
ASSIGNMENT OF ERROR FOUR
WHERE THE RECORD AT PRE–TRIAL SHOWS THE DEFENSE
SPECIFICALLY REQUESTED CERTAIN EX–CULPATORY
MATERIAL FROM THE PROSECUTION, AND IT IS
SUBSEQUENTLY DETERMINED THE PROSECUTION DID
NOT SUPPLY SAID MATERIAL, THE EFFECT IS TO DENY
THE ACCUSED A FAIR TRIAL UNDER THE FOURTH, FIFTH,
SIXTH AND FOURTEENTH AMENDMENTS TO THE
CONSTITUTION.
ASSIGNMENT OF ERROR FIVE
EVIDENCE OF PLEA NEGOTIATIONS IS INADMISSIBLE IN A
JURY TRIAL; WHERE THE PROSECUTION INTRODUCES
DETAILED TESTIMONY OF PLEA NEGOTIATIONS, THE
EFFECT IS CONTRA THE FOURTH, FIFTH, SIXTH AND
FOURTEENTH AMENDMENTS AND EVID. R. 410(a)(5).
ASSIGNMENT OF ERROR SIX
WHERE THE RECORD REVEALS THAT THE CONFESSION
WAS INVOLUNTARY, THE ERROR IN ADMITTING IT AT
TRIAL RESULTED IN A VIOLATION OF THE FOURTH, FIFTH,
SIXTH AND FOURTEENTH AMENDMENTS TO THE
CONSTITUTION.
ASSIGNMENT OF ERROR SEVEN
DURING DELIBERATIONS THE TRIAL COURT COMMITS
ERROR IN ALLOWING THE TAPE TO BE VIEWED ON
NUMEROUS OCCASIONS BY THE JURY, OVER THE
OBJECTIONS OF THE DEFENSE, THEREBY UNDULY
EMPHASIZING THAT PARTICULAR EXHIBIT CONTRA THE
7

SIXTH AMENDMENT.
Id. at *4. On March 14, 2002, the appellate court affirmed the judgment of the trial court. Id. On
August 7, 2002, the Ohio Supreme Court dismissed Petitioner’s appeal. State v. Caulley, 96 Ohio
St.3d 1467 (2002).
On June 12, 2002, defendant-appellant, Robert J. Caulley, filed an
application to reopen his appeal and the judgment of this court
rendered in State v. Caulley (Mar. 14, 2002), Franklin App. No.
97AP-1590.
State v. Caulley, 97AP-1590, 2002 31839216, at *1 (Ohio App. 10th Dist. Dec. 19, 2002). In Rule
26(B) proceedings, Petitioner asserted he had been denied effective assistance of appellate counsel
because his attorney failed to raise on appeal a claim that he was denied a fair trial because the trial
court refused to permit him to call Christie Tackett, Jason Friend, or Kim Kelson as defense
witnesses; and that he was denied effective assistance of trial counsel because his attorney failed to
request the trial court to call Ricky Nelson as a witness and failed to object to testimony of Judge
Hogan. See id. On December 19, 2002, the appellate court denied Petitioner’s Rule 26(B)
application. Id. On April 2, 2003, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal.
State v. Caulley, 98 Ohio St.3d 1515 (2003).
Petitioner also pursued post conviction relief.
Defendant filed the present petition for post-conviction relief on July
27, 2001. The state did not respond until March 19, 2004, apparently
due to a failure of service. Defendant then filed an application for
DNA testing under R.C. 2953 .71 et seq. The court granted in part the
application for DNA testing on some of the suggested items from the
crime scene, but denied defendant's request that (1) a private
laboratory, rather than the State Bureau of Criminal Investigation
(“BCI”), perform the test, and (2) an independent expert observe
testing at BCI.
The DNA testing results from BCI eventually proved inconclusive.
8

Defendant then filed a motion for leave to amend his post-conviction
petition, a submission of supplemental exhibits, and a motion for
additional DNA testing. Defendant also sought additional discovery
of the data results supporting BCI's summary DNA report. Without
conducting an evidentiary hearing, the trial court dismissed the
pending motions and the post-conviction petition itself.
State v. Caulley, No. 07AP-338, 2007 WL 4532671, at *1 (Ohio App. 10th Dist. Dec. 27, 2007).
Petitioner timely appealed, raising the following assignments of error:
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED BY APPLYING THE DOCTRINE
OF RES JUDICATA TO BAR CAULLEY'S FIRST, THIRD,
FORTH [sic] SIXTEENTH [sic], SEVENTEENTH [sic], AND
EIGHTEENTH [sic] GROUNDS FOR RELIEF.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED IN DISMISSING CAULLEY'S
POST-CONVICTION PETITION WHEN HE PRESENTED
SUFFICIENT OPERATIVE FACTS TO MERIT RELIEF OR, AT
MINIMUM, AN EVIDENTIARY HEARING.
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ERRED IN DISMISSING CAULLEY'S
MOTION FOR LEAVE TO FILE AMENDMENTS TO HIS
POST-CONVICTION PETITION AS UNTIMELY WHEN HE
DEMONSTRATED GOOD CAUSE FOR ANY DELAY AS WELL
AS PREJUDICE TO CAULLEY.
ASSIGNMENT OF ERROR NO. IV
THE TRIAL COURT ERRED WHEN IT DENIED CAULLEY'S
POST-CONVICTION PETITION WITHOUT FIRST AFFORDING
HIM THE OPPORTUNITY TO CONDUCT DISCOVERY.
ASSIGNMENT OF ERROR NO. V
THE TRIAL COURT ERRED BY DENYING CAULLEY'S
MOTION FOR ADDITIONAL DNA TESTING BASED ON BCI'S
DNA TEST RESULTS ON THE FIRST SET OF ITEMS.
9

Id. at *1-2. On December 27, 2007, the appellate court affirmed the judgment of the trial court. Id.
On May 21, 2008, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v.
Caulley, 118 Ohio St.3d 1411 (2008).
On February 6, 2008, defendant filed another application for DNA
testing of “all of blood evidence and hair evidence that was collected
at the scene,” with a supporting memorandum listing 21 items for
DNA testing. After the parties briefed the issue, the state filed a
supplemental response stating that the hair found in Lois Caulley's
hand at the crime scene, previously ordered to be DNA tested, had
been discovered. The parties agreed further DNA testing was
appropriate, and the state on May 8, 2008 filed a motion requesting
an order for DNA testing of the discovered hair and “limited further
testing of additional evidence in this case.”
Pursuant to the parties' agreement, the trial court on May 12, 2008
ordered Orchid Cellmark to conduct DNA testing on the discovered
hair and up to four representative human hairs from a sweatshirt in
evidence. The court further ordered, pursuant to the parties'
agreement, that BCI conduct DNA analysis of six items on defendant's
list: the sweatshirt, an H & R 20-gauge shotgun, a table leg, cartons
or packs of cigarettes, or both, a White Castle cup, and swabs
previously taken from an H & R .410 shotgun. Results from the tests
were filed with the court on August 15, 2008 and October 2, 2008.
The test results again were inconclusive but did reveal a partial DNA
profile from an “unknown male” on the 20-gauge H & R shotgun,
which had been found at the crime scene stacked with other items by
the victims' front door.
Based upon the test results, defendant on October 15, 2008 filed a
“Motion for an Order Requiring Alternate Suspects to Submit Oral
Samples Suitable for DNA Testing” in order to compare the DNA
profiles of two individuals, who defendant claimed were potential
suspects, to the “unknown male” DNA profile on the 20-gauge H &
R shotgun. Defense counsel contended at trial that one or both of the
individuals was involved in killing the victims in this case, but neither
“alternate suspect” was a defendant in the action against defendant,
and the trial court did not have personal jurisdiction over them.
According to defendant, the first “suspect,” who lived with his parents
next door to the victims, exhibited suspicious behavior before and
after the victims' murders; the second “suspect” purportedly bragged
10

to several people about committing the murders and being a “burglar
for a living” who broke into residences and stacked items in one spot
before removing them. Defendant contended the “alternate suspects”
would have touched or handled the shotgun in question only if one of
them committed the murders. Thus, defendant argued, if the
“unknown male” DNA profile on the 20-gauge H & R shotgun
matches a DNA profile of one of the alternate suspects, it proves that
individual was the real killer and exonerates defendant,
notwithstanding his confession that he killed his parents. At the trial
court's urging, defendant attempted to have the “alternate suspects”
voluntarily submit oral samples for DNA testing. Although both of
them verbally agreed to provide samples, neither individual submitted
a biological sample for DNA testing.
On December 9, 2008, defendant filed a supplemental memorandum
with the trial court detailing his efforts to have the two alternate
suspects submit samples for DNA testing and renewing his request for
a court order requiring their cooperation. By judgment entry filed
January 20, 2009, the trial court denied defendant's motion for an
order requiring the alternate suspects to submit samples for DNA
testing and dismissed defendant's second application for DNA testing.
State v. Caulley, No. 09AP-172, 2009 WL 3633815, at *1-3 (Ohio App. 10th Dist. Nov. 3, 2009).
Petitioner timely appealed, raising the following assignments of error:
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED BY DENYING CAULLEY'S
MOTION FOR AN ORDER REQUIRING ALTERNATE
SUSPECTS TO SUBMIT ORAL SAMPLES SUITABLE FOR DNA
TESTING WHEN THESE ORAL SAMPLES WERE NECESSARY
TO VINDICATE CAULLEY'S CONSTITUTIONAL RIGHT TO
ESTABLISH HIS INNOCENCE THROUGH DNA TESTING.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT ERRED BY DENYING CAULLEY'S
SECOND APPLICATION FOR DNA TESTING WHEN
ADDITIONAL DNA TESTING WOULD YIELD OUTCOME
DETERMINATIVE RESULTS.
Id. at *3. On November 3, 2009, the appellate court affirmed the judgment of the trial court. Id.

11

On May 3, 2010, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v.
Caulley, 124 Ohio St.3d 1494 (2010).
Represented by the Ohio Public Defender, on March 3, 2011, Petitioner filed the instant
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody
of the Respondent in violation of the Constitution of the United States based upon the following
grounds:
1. Caulley is actually innocent of the crimes for which he is convicted.
His convictions violate the U.S. Constitution. . . .
2. Caulley’s rights to counsel, a fair trial, and due process were
violated when the trial court admitted his confession into evidence,
when that confession was involuntary and inadmissible. . . .
3. Caulley’s constitutional right to due process was violated when the
trial court erroneously prohibited Caulley from introducing
exculpatory evidence. . . .
4. Caulley is entitled to habeas relief because the State suppressed
material, exculpatory evidence in violation of Brady v. Maryland, 373
U.S. 83 (1963) and despite assurances to the contrary, the trial court
failed to review the State’s investigation file for exculpatory evidence.
...
5. Caulley’s right to a fair trial was violated when a judge, who was
a former prosecutor, was allowed to testify and present irrelevant,
prejudicial testimony. . . .
6. Caulley’s right to a fair trial was violated when the trial court
admitted testimony concerning threats made by the defendant, when
that testimony was inadmissible. . . .
7. Caulley is entitled to habeas relief because of trial counsel’s
ineffectiveness. . . .
8. Caulley’s due process rights were violated because appellate
counsel failed to render effective assistance in his first appeal of right.
...

12

9. Caulley is entitled to habeas relief because the State and the trial
court violated his constitutional right to due process when they denied
meaningful access to the physical evidence in order to conduct DNA
tests. . . .
10. A trial court, consistent with the Due Process and Equal
Protection Clauses of the Fourteenth Amendment, cannot arbitrarily
deny petitioners the right to file pleadings timely tendered in good
faith. . . .
11. Caulley deserves habeas relief because his constitutional rights
were violated when the trial court denied his Motion for Order
Requiring Alternate Suspects to Submit Oral Samples Suitable for
DNA Testing when these oral samples were necessary to vindicate
Caulley’s constitutional right to establish his innocence through DNA
testing. . . .
12. Caulley’s constitutional rights were violated because of the
cumulative effect of multiple errors at his trial.
It is the position of the Respondent that these claims to provide a basis for federal habeas corpus
relief.
Subsequent to the filing of his federal habeas corpus petition, again represented by counsel,
on April 20, 2011, and June 21, 2011, Petitioner filed a motion for leave to file a delayed motion for
a new trial and a motion for a new trial, asserting his trial counsel acted under a conflict of interest
prior to and during trial by having a sexual relationship with Petitioner’s wife, and that Petitioner was
unable earlier to discover the basis for this claim. Exhibit 101 to Return of Writ. According to
Petitioner, he learned about the affair from his ex-wife almost fourteen years after trial. See id. On
July 11, 2011, Petitioner filed a Motion for Leave to Amend the Petition with the following additional
claim:
13. Caulley’s right to a fair trial and due process was violated when
his trial counsel was operating under a conflict of interest while
representing Caulley in his capital trial. . . .

13

Motion for Leave to Amend the Petition, Doc. 10. On the same date, Petitioner filed a motion to
stay proceedings pending exhaustion of this claim in the state courts. Doc. 11.
Respondent opposes Petitioner’s motion to amend the petition, arguing that the claim is timebarred under Mayle v. Felix, 545 U.S. 644 (2005), because it differs in time and type from those
claims raised in Petitioner’s timely habeas corpus petition. Respondent additionally contends that
Petitioner failed to exercise diligence in discovering the factual predicate for his claim so as to render
the claim timely filed under 28 U.S.C. § 2244(d)(1)(D).1 According to Respondent Petitioner has
failed to establish he exercised diligence in learning the factual predicate for his claim, because he
never asked Carey Gravelle, his ex-mother-in-law, whether his wife had been having sexual relations
with his attorney prior to and during his trial, and should have so inquired. See Respondent’s
Memorandum in Opposition, Doc. 12. Respondent similarly opposes Petitioner’s request for a stay
of proceedings, arguing Petitioner likewise has failed to establish good cause for failing to exhaust
his claim and that the record fails to reflect Petitioner’s unexhausted claim is potentially meritorious.
See Respondent’s Opposition to Motion to Stay, Doc. 13; Rhines v. Weber, 544 U.S. 269, 274
(2005)(a stay and abeyance of habeas corpus proceedings is appropriate only where the petitioner
establishes good cause for failing to exhaust his claim and his claim is potentially meritorious).

1

28 U.S.C. 2244(d)(1) provides:

A 1-year period of limitations shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitations period shall run from the latest of –
***
(D) the date on which the factual predicate of the claim or claims presented could
have been discovered through the exercise of due diligence.
14

Respondent’s arguments are not persuasive. On September 8, 2011, the trial court issued a
Nunc Pro Tunc Entry concluding to the contrary:
The new evidence slowly came to light years after the defendant’s
conviction. The evidence was of an ambiguous nature when one
considers it in terms of showing guilt or absence thereof. . . . [T]he
evidence in this case involved a question of legal ethics, and without
a lot of investigation by the defender’s office, little or nothing to
indicate a reasonable expectation of a new trial.
Up until early this year defendant had insufficient evidence available
to him to proceed with his effort to gain a new trial. Given his
situation in prison and estranged from his ex-wife and prior lawyer,
prevention of the discovery of meaningful evidence was unavoidable.
It would seem that time considerations have never been a factor in this
matter. It took two or three years between the termination of the
active investigation of this case and the interrogation of the defendant
in Texas and many more years before the development of the details
of the affair giving rise to this issue.
Exhibit 4 to Respondent’s Supplemental Response, Doc. 18. The affidavit of Celeste (Caulley)
Bowman, Petitioner’s ex-wife, dated February 9, 2011, indicates in relevant part:
I never told Bob about the affair. Bob ultimately found out about the
affair from his sister, recently. The first time I discussed the affair
with Bob was briefly during my first visit with him in over 12 years in
June 2010. I have since learned that Bob apparently believed that the
affair was solely post-trial. Bob didn’t know until approximately one
month ago that the affair began pre-trial and lasted through the trial.
We’ve now discussed that fact over email through the prison.
My mother has been pleading with me for years to come forward
regarding the affair with Jim. After visiting Bob for the first time in
twelve years in June 2010, I had renewed feelings of guilt concerning
the affair with Jim. Because of those feelings as well as my mother’s
insistence, I decided to come forward. In January 2011, I sent an
email to Kim Rigby, Assistant State Public Defender, who currently
represents bob, explaining my and Jim’s relationship. . . .
See Exhibit 101 to Return of Writ. Petitioner indicates in his affidavit that he learned from his sister
and mother-in-law “a few years ago” that his ex-wife and attorney had an affair “[b]ut by that time,
15

the whole thing was water under the bridge. My ex-wife and I hadn’t spoken in several years, and
we had been long-divorced.” See id.
I always assumed that this affair was solely post-trial. It was not until
January, 2011 that I first heard that the affair started pre-trial and
continued during trial. I was completely shocked. . . . I never would
have guessed that Jim and Celeste were in a sexual relationship at that
time.
Id.
As noted by the state trial court, nothing in the record reflects that Petitioner had any reason
to believe his attorney and ex-wife were having a sexual relationship or ongoing affair prior to and
during the time of his trial prior to the disclosure thereof, in January 2011. This Court thus concludes
Petitioner has established his unexhausted claim is timely under 28 U.S.C. § 2244(d)(1)(D).
Petitioner’s request to amend the petition, Doc. 10, is GRANTED.
As to Petitioner’s request for a stay,
[A] stay and abeyance is only appropriate when the district court
determines there was good cause for the petitioner's failure to exhaust
his claims first in state court. Moreover, even if a petitioner had good
cause for that failure, the district court would abuse its discretion if it
were to grant him a stay when his unexhausted claims are plainly
meritless. Cf. 28 U.S.C. § 2254(b) (2) (“An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the courts
of the State”).
Rhines v. Weber, 544 U.S. at 277. Petitioner has established good cause for failing to exhaust his
claim in the state courts. He was unaware of the basis for his claim, and unable reasonably to learn
of the basis for his claim until his ex-wife disclosed the relationship, long after his convictions and
appeals had concluded. Moreover, the record fails to reflect that Petitioner’s claim is plainly
meritless. On January 10, 2012, after a hearing, the trial court granted Petitioner’s request for a new
trial. Exhibit 16 to Respondent’s Supplemental Response, Doc. 18. Respondent’s appeal currently
16

remains pending. Moreover, depending on the results of that appeal, the claims currently pending
before this Court may become moot.
Petitioner’s Motion for Leave to Amend the Petition, Doc. 10, is GRANTED. Petitioner’s
Request for a Stay, Doc. 11, also is GRANTED.
Petitioner is DIRECTED to keep the Court advised of the status of state court proceedings.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH
United States District Judge

17