Anderson v. Warden Chillicothe Correctional Institution

Filing 20

ORDER AND REPORT AND RECOMMENDATIONS. The Motion to Expand the Record, Doc. No. 7 is DENIED. It is RECOMMENDED that Petitioner's Motion for Summary Judgment and Bail, Doc. No. 16 and Motion for Judgment of the Pleading, Doc. 19 , be DENIED. Signed by Magistrate Judge Norah McCann King on 6/20/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KIM L. ANDERSON,
Petitioner,
v.

CASE NO. 2:13-CV-00622
JUDGE SMITH
MAGISTRATE JUDGE KING

NORMAN ROBINSON,
ORDER AND
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on Petitioner’s Motion to Expand the Record,
Doc. No. 7, Motion for Summary Judgment and Bail, Doc. No. 16, and Motion for Judgment of
the Pleading, Doc. No. 19. For the reasons that follow, the Motion to Expand the Record is
DENIED and it is RECOMMENDED that Petitioner’s Motion for Summary Judgment and
Bail, and Motion for Judgment of the Pleading be DENIED.
This case involves Petitioner’s October 6, 2008, convictions, following a jury trial in the
Franklin County Court of Common Pleas, on one count of engaging in a pattern of corrupt
activity, one count of theft, five counts of forgery, five counts of money laundering, and one
count of identity fraud related to his participation in a mortgage-fraud scheme. See State v.
Anderson, No. 12AP-516, 2013 WL 2965253 (Ohio App. 10th Dist. June 13, 2013). The trial
court sentenced Petitioner to an aggregate term of fifteen years’ imprisonment. On December
15, 2009, the state court of appeals affirmed Petitioner’s convictions. State v. Anderson, 2009
WL 4809869. On January 25, 2011, the Ohio Supreme Court affirmed the judgment of the Court
of Appeals. In re Cases Held for Decision in State v. Hodge, 128 Ohio St.3d 234, 2011–Ohio–

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228, ¶ 6. Petitioner filed a motion for a new trial and pursued various collateral actions, without
success.
The Petition, Doc. No. 3, alleges that the trial court improperly imposed consecutive
sentences without making the findings required by O.R.C. § 2929.14(E) (claim one); that his
convictions violate Ohio’s statute on allied offenses of similar import based on the imposition of
consecutive terms of incarceration (claim two); that the evidence is constitutionally insufficient
to sustain his convictions (claim three); that Petitioner was denied a fair trial due to the State’s
violation of discovery rules (claim four); that Petitioner’s trial counsel functioned under a
conflict of interest (claim five); and that the trial court violated Ohio’s Criminal Rule 16,
improperly created its own jury questionnaire, and abused its discretion in not granting the
request for a change of venue (claims six through eight).1
Motion to Expand the Record
Petitioner seeks to expand the record to include documents from the Offices of the
Fairfield and Delaware County Auditors and other documents (i.e., a copy of the Corrected
Entry of sentence and what appears to be a portion of the trial transcript). Petitioner contends
that these records, which were allegedly improperly withheld by the prosecution, establish his
innocence on the charges against him and support his claims of prosecutorial misconduct,
ineffective assistance of counsel and insufficiency of the evidence. Petitioner also contends that
the documents will assist the Court in determining whether an evidentiary hearing is required.

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  This is Petitioner’s second habeas corpus action filed in this Court. Petitioner’s first action, Anderson v.Warden
Chillicothe Correctional Institution, 2:12-CV-00130 (S.D. Ohio July 12, 2012), was dismissed by the Court without
prejudice – at Petitioner’s request – for failure to exhaust state court remedies.

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Respondent opposes Petitioner’s request as premature2 and because, Respondent
contends, at least some of Petitioner’s claims are procedurally defaulted. Respondent also
complains that one proffered document is illegible. Respondent’s Opposition to Motion to
Expand the Record, Doc. No. 11.
To the extent that Petitioner’s request to expand the record refers to the Corrected Entry
of sentence and what appears to be a portion of the trial transcript in this case, the motion is
DENIED.

These documents are either already before the Court,3 Anderson v. Warden

Chillicothe Correctional Institution, 2:12-cv-130, Exhibits 5-8 attached to Motion to Dismiss,
Doc. No. 8, PageID# 97-112, or are undecipherable, see PageID# 191-92, and therefore will not
assist either the parties or the Court in resolving Petitioner’s claims.
The remaining documents attached to Petitioner’s Motion to Expand the Record include a
document captioned “Data for Parcel 0360568100,” Exhibit A-1, and what purports to be a
transfer record from the Delaware County Auditor on Parcel ID# 31942501023000, Exhibit A-2.
Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts
provides:
(a) In General. If the petition is not dismissed, the judge may
direct the parties to expand the record by submitting additional
materials relating to the petition. The judge may require that
these materials be authenticated.
(b) Types of Materials. The materials that may be required include
letters predating the filing of the petition, documents, exhibits,
and answers under oath to written interrogatories propounded
by the judge. Affidavits may also be submitted and considered
as part of the record.

2

 The Motion to Expand the Record was filed prior to the filing of the Return of Writ, Doc. No. 14. 
Exhibits 5, 6 attached to Motion to Dismiss, Doc. No. 8, Anderson v. Warden Chillicothe Correctional Institution,
2:12-cv-130. These exhibits have been incorporated by reference into the Return of Writ in this case. Return of
Writ, Doc. No. 14, PAGEID 205.
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(c) Review by the Opposing Party. The judge must give the party
against whom the additional materials are offered an
opportunity to admit or deny their correctness.
The purpose of this rule is not only to enable the court to consider the merits of claims without
an evidentiary hearing, but also to assist the court in determining whether an evidentiary hearing
is warranted. Blackledge v. Allison, 431 U.S. 63, 81 (1977).
In Cullen v. Pinholster, – U.S. –, 131 S.Ct. 1388, 1398 (2011), the United States Supreme
Court held that federal review under 28 U.S.C. § 2254(d) of a claim adjudicated on the merits by
a state court is limited to the factual record that was before the state court. See 28 U.S.C. §
2254(e)(2); Holland v. Jackson, 542 U.S. 649, 652 (2004) (“[W]hether a state court's decision
was unreasonable must be assessed in light of the record the court had before it”). See also
Ballinger v. Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013) (“[D]istrict courts are precluded from
conducting evidentiary hearings to supplement existing state court records when a state court has
issued a decision on the merits with respect to the claim at issue”); Sheppard v. Bagley, 657 F.3d
338, 343–44 (6th Cir. 2011) (refusing to consider evidence not considered by the state courts in
light of Pinholster). The United States Supreme Court has explained the reasoning behind this
limitation:
Although state prisoners may sometimes submit new evidence in
federal court, AEDPA's statutory scheme is designed to strongly
discourage them from doing so. Provisions like §§ 2254(d)(1) and
(e)(2) ensure that “[f]ederal courts sitting in habeas are not an
alternative forum for trying facts and issues which a prisoner made
insufficient effort to pursue in state proceedings.” Id., at 437, 529
U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435; see also Richter, 562
U.S., at ––––, 131 S.Ct., at 787 (“Section 2254(d) is part of the
basic structure of federal habeas jurisdiction, designed to confirm
that state courts are the principal forum for asserting constitutional
challenges to state convictions”); Wainwright v. Sykes, 433 U.S.
72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (“[T]he state trial on
the merits [should be] the ‘main event,’ so to speak, rather than a

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‘tryout on the road’ for what will later be the determinative federal
habeas hearing”).
Pinholster, at 1401. The limitation on evidentiary hearings in habeas corpus cases, as articulated
in Pinholster, applies as well to a motion to expand or supplement the record through Rule 7 of
the Rules Governing Section 2254 Cases. See, e.g., Caudill v. Conover, 871 F.Supp.2d 639, 646
(E.D.Ky. May 14, 2012) (“It would defy logic to preclude a petitioner from developing factual
information in an evidentiary hearing [under Pinholster ], but allow her to introduce the same
factual information via discovery and expansion of the record”).
At this stage of the proceedings, it appears that the state courts adjudicated Petitioner’s
claims on the merits. Accordingly, Pinholster requires that this Court's review of Petitioner’s
claims be “limited to the record that was before the state court that adjudicated the claim on the
merits.” Id., at 1398.
That said, the only habeas corpus claim that the tendered documents may relate to is
Petitioner’s claim of insufficiency of the evidence.4 In that claim, Petitioner argues “that he only
obtained and exerted control over $180,476.55 in proceeds from the mortgages in the five real
estate transactions” and that this amount makes his theft conviction a third degree felony, rather
than a first degree felony, which requires that the “value of the property or services stolen is one
million dollars or more.” See State v. Anderson, 2009 WL 4809869, at *4 (citing R.C. §
2913.02(B)(2)). Even if Pinholster does not preclude Petitioner from expanding the record with
these documents, Petitioner also must satisfy the requirements of 28 U.S.C. § 2254(e)(2) before

4

 Petitioner’s claim of prosecutorial misconduct involves Petitioner’s allegation that the prosecutor violated state
discovery rules by not disclosing a prosecution witness prior to trial. Petition, PageID# 99. His claim of ineffective
assistance of counsel involves his attorney’s alleged conflict of interest based on his prior representation of
Petitioner and a co-defendant, and on his alleged familiarity with other prosecution witnesses. Petition, PageID#
105. It is difficult to discern how the documents from the Fairfield and Delaware County Auditors’ Offices could
assist Petitioner in establishing either of those claims.  

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he will be permitted to proffer evidence that he failed to present to the state courts. That statute
provides as follows:
(2) If the applicant has failed to develop the factual basis of a claim
in State court proceedings, the court shall not hold an evidentiary
hearing on the claim unless the applicant shows that—
(A) the claim relies on(i)

(ii)

a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or
a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish
by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found the applicant guilty of
the underlying offense.
28 U.S.C. § 2254(e)(2). Petitioner cannot meet this standard here because none of these public
documents was unavailable to him at the time of trial.
Petitioner’s Motion to Expand the Record, Doc. No. 7, is therefore DENIED.
Motion for Summary Judgment and Bail
In his Motion for Summary Judgment and Bail, Petitioner contends that, because there is
“no real material issue of dispute” as to his claims, the Court should grant summary judgment in
his favor. PageID# 2989. Petitioner also seeks his release on bail. In his Motion for Judgment
on the Pleading, Petitioner requests a ruling on his Motion for Summary Judgment and Bail.
PageID# 3003.
Respondent contends that Petitioner’s habeas corpus claims are either procedurally
defaulted or offer no basis for federal habeas corpus relief. Return of Writ, Doc. No. 14. Under
these circumstances, summary judgment is unwarranted. Moreover, release of a habeas petitioner
on bail pending a decision on the merits of a habeas petition requires a showing of a substantial
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claim of law and circumstances making the motion for bail “exceptional and deserving of special
treatment in the interests of justice.” Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990) (citing
Aronson v. May, 85 S.Ct. 3, 5 (1964)). “There will be few occasions where a prisoner will meet
this standard.” Dotson, 900 F.2d at 79. Because a habeas petitioner “is appealing a presumptively
valid state conviction . . . it will indeed be the very unusual case where a habeas petitioner is
admitted to bail prior to a decision on the merits in the habeas case.” Lee v. Jabe, 989 F.2d 869,
871 (6th Cir. 1993). The record fails to reflect that this is such a case.
It is therefore RECOMMENDED that Petitioner’s Motion for Summary Judgment and
Bail, Doc. No. 16, and Petitioner’s Motion for Judgment of the Pleading, Doc. No. 19, be
DENIED.
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
72(b). Response to objections must be filed within fourteen (14) days after being served with a
copy thereof. Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

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magistrate judge’s report and recommendation).

Even when timely objections are filed,

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objections to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).

s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
June 20, 2014

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