Ogle v. Ohio Department of Rehabilitation and Correction

Filing 57

SUPPLEMENTAL OPINION ON MOTIONS FOR EVIDENTIARY HEARING AND TO EXPAND THE RECORD - Because Petitioner has not tendered new evidence of the quality required by Schlup, supra, it is inappropriate to grant her an evidentiary hearing or expansion of the record to allow the evidence she has tendered. Her Objections to the Decision and Order should be OVERRULED. Signed by Magistrate Judge Michael R. Merz on 4/14/2016. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
MELANIE A. OGLE,
Petitioner,

:

- vs -

Case No. 2:15-cv-776
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

GARY C. MOHR, DIRECTOR,
Ohio Department of Rehabilitation
And Correction
:
Respondent.

SUPPLEMENTAL OPINION ON MOTIONS FOR EVIDENTIARY
HEARING AND TO EXPAND THE RECORD

In this habeas corpus action, Petitioner, who is represented by counsel, filed Motions for
an Evidentiary Hearing (ECF No. 49) and to Expand the Record (ECF No. 50). Respondent
opposed both Motions (ECF Nos. 51, 52) and the Magistrate Judge filed a Decision and Order
denying both Motions (ECF No. 53). Petitioner has objected to the Decision and Order (ECF
No. 54) and Chief Judge Sargus has recommitted the matter for additional analysis of the
Objections (Recommittal Order, ECF No. 56). This Supplemental Opinion will deal with the
Objections seriatim as they are raised in Petitioner’s filing.
As a general matter, Petitioner had written in the Motions that she was making a habeas
claim that she had been “wrongfully convicted.” (Motion, ECF No. 49, PageID 3439.) The
Decision and Order noted that “wrongful conviction” is not a cognizable claim in habeas corpus
(ECF No. 53, PageID 3490). Petitioner’s counsel now “correct[s] the pleadings” to indicate that
Petitioner is attempting to show actual innocence within the meaning of that term in Schlup v.
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Delo, 513 U.S. 298 (1995). Such a showing of actual innocence would entitle Petitioner to avoid
any procedural default she may have committed in presenting her claims to the Ohio courts. See
McQuiggin v. Perkins, 569 U.S. ___, 133 S. Ct. 1924, 185 L. Ed. 2d 1019, 1035 (2013); House v.
Bell, 547 U.S. 518 (2006); Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005). Petitioner’s
correction of the pleadings is apt and the Magistrate Judge will consider the Objections in that
light.

Motion for Evidentiary Hearing

Objection No. 1: Regarding Ineffective Assistance of Counsel

In the Decision and Order, the Magistrate Judge noted that the Traverse purported to
plead eight grounds for relief, although no seventh ground was actually stated (Decision and
Order, ECF No. 53, PageID 3489-90, quoting Traverse, ECF No. 40, PageID 3134-46). The
Traverse is not a pro se pleading entitled to liberal construction under Haines v. Kerner, 404
U.S. 519, 520-21 (1972), as it was filed after Ms. Ogle retained counsel in this case. Nowhere in
those quoted seven grounds for relief is there any mention of ineffective assistance of trial
counsel. However, in the Motion for Evidentiary Hearing, counsel characterized the claims on
which she wanted to present evidence as “(1) wrongful conviction [now corrected to “actual
innocence] and (2) ineffective assistance of appellate and trial counsel.” (Decision and Order,
ECF No. 53, PageID 3490, quoting Motion, ECF No. 49, PageID 3439.)
In her Objections, Ms. Ogle claims she “had plead [sic] ineffective assistance of counsel
in the Amended Petition for Habeas Corpus” (Objections, ECF No. 54, PageID 3500, citing

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Amended Petitioner [sic], R.21, at PageID 2816). Ground Five as written at the cited location
reads “GROUND FIVE: Petitioner was denied effective assistance of appellate counsel rising to
Constitutional infringement under the Sixth and Fourteenth Amendments.”

Thus what is

actually pled in the Amended Petition is a claim of ineffective assistance of appellate counsel,
not trial counsel. As it happens, the claim of ineffective assistance of appellate counsel is based
at least in part on appellate counsel’s having failed to raise on appeal claims of ineffective
assistance of trial counsel. To the extent such claims must be proved in order to prevail on the
ineffective assistance of appellate counsel claim, it is correct that such ineffective assistance of
trial counsel claims are referred to in the Amended Petition, but no such ineffective assistance of
trial counsel claims are pled as free-standing claims.

Objection 2: Regarding Impeachment Evidence

The Decision and Order is based primarily on a finding that the proffered evidence does
not qualify as appropriate proof of actual innocence under Schlup, that is, it is not scientific or
physical evidence not offered at trial, nor is it the previously-unheard testimony of a reliable
eyewitness.
Ms. Ogle disagrees, directing the Court’s attention to House v. Bell, 547 U.S. 518 (2006),
citing the holding in that case that, in determining whether a habeas petitioner has established a
Schlup actual innocence case, the habeas court must consider the new credible evidence not
presented at trial along with all the other evidence:. The relevant portion of the House opinion
reads:
For purposes of this case several features of the Schlup standard
bear emphasis. First, although "[t]o be credible" a gateway claim
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requires "new reliable evidence--whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence--that was not presented at trial," id., at 324, 115
S. Ct. 851, 130 L. Ed. 2d 808, the habeas court's analysis is not
limited to such evidence. . . .
Schlup makes plain that the habeas court must consider "'all the
evidence,'" old and new, incriminating and exculpatory, without
regard to whether it would necessarily be admitted under "rules of
admissibility that would govern at trial." See id., at 327-328, 115
S. Ct. 851, 130 L. Ed. 2d 808 (quoting Friendly, Is Innocence
Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L.
Rev. 142, 160 (1970)). Based on this total record, the court must
make "a probabilistic determination about what reasonable,
properly instructed jurors would do." 513 U.S., at 329, 115 S. Ct.
851, 130 L. Ed. 2d 808. The court's function is not to make an
independent factual determination about what likely occurred, but
rather to assess the likely impact of the evidence on reasonable
jurors. Ibid.
Second, it bears repeating that the Schlup standard is demanding
and permits review only in the "'extraordinary'" case. Id., at 327,
115 S. Ct. 851, 130 L. Ed. 2d 808 (quoting Zant, supra, at 494, 111
S. Ct. 1454, 113 L. Ed. 2d 517); see also 513 U.S., at 324, 115 S.
Ct. 851, 130 L. Ed. 2d 808 (emphasizing that "in the vast majority
of cases, claims of actual innocence are rarely successful"). At the
same time, though, the Schlup standard does not require absolute
certainty about the petitioner's guilt or innocence. A petitioner's
burden at the gateway stage is to demonstrate that more likely than
not, in light of the new evidence, no reasonable juror would find
him guilty beyond a reasonable doubt--or, to remove the double
negative, that more likely than not any reasonable juror would
have reasonable doubt.

547 U.S. at 537-38. House reiterated that, even to initiate a Schlup actual innocence inquiry, a
petitioner must present “new, credible evidence” of a certain quality – scientific or physical
evidence or reliable eyewitness testimony.
House had been convicted of murder and sentenced to death. The new evidence he
presented to establish the gateway was (1) the semen stain on the victim’s clothing came from
her husband, not House; (2) the husband had confessed; (3) the husband had abused his wife in
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the past; and (4) the victim’s blood on House’s clothing probably got there because a vial of the
victim’s blood was shipped to the laboratory with House’s clothing and broke in transit. Ogle
presents nothing like this, no scientific or physical evidence and no reliable eyewitness testimony
that was not presented at trial.
Instead, Ms. Ogle claims that “[a]ll of the evidence Petitioner seeks to hold a hearing on
here is new, credible evidence that was either suppressed or not available at trial.” If Ms. Ogle
has a credible claim that the State suppressed material exculpatory evidence, then she would be
entitled to relief on that basis alone under Brady v. Maryland, 373 U.S. 83 (1963), but no Brady
claim is pleaded. The fact that some or indeed all of the evidence was “not available at trial” is
immaterial – there is no constitutional right to a new trial because a defendant has, post-trial,
found evidence which could have been introduced at trial. If that were the law, no case would
ever be final.

Objection 3: Regarding Pinholster

As an additional basis for denying the Motion for Evidentiary Hearing, the Magistrate
Judge noted that in Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court held that a
federal court’s review of a state court decision under 28 U.S.C. § 2254(d)(1) is strictly limited to
“review of the state court record,” and that evidence acquired through use of an evidentiary
hearing may not be considered. Pinholster, 563 U.S. at 182.
Petitioner objects that she “understands the constraints and limitations of the Pinholster
decision [but] [t]he state cannot keep information from the Petitioner until after the trial, the
appeal and the start of the habeas proceedings and then claim the protection of Pinholster.
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Williams requires that the Petitioner be diligent.” (Objections, ECF No. 54, PageID 3502.) The
Court assumed Petitioner is referring to Williams v. Taylor, 529 U.S. 420 (2000), where the
Supreme Court held that proof of diligence was a necessary precondition of an evidentiary
hearing under 28 U.S.C. § 2254(e)(2). But while diligence is necessary, it is not sufficient. The
Supreme Court has never recognized a diligence exception to Pinholster and indeed held in
Pinholster that § 2254(e)(2) only remains relevant when a petitioner has met the requirements of
§ 2254(d)(1) and/or (2).

Motion to Expand the Record

Objection Regarding the Testimony Being “Non-Eyewitness”

In the Decision and Order, the Magistrate Judge noted that none of the evidence proposed
to be added by expanding the record was new eyewitness testimony. Ogle does not deny the
accuracy of that observation, but claims that, among the items offered, are two transcripts of
testimony and an affidavit of Deputy Woodgeard “that are impeachment evidence.” (Objections,
ECF No. 54, PageID 3503.) These are post-trial statements by Woodgeard about whether the
power company trucks at the scene were moved; none are recantations or even modifications of
his central trial testimony that Ogle kicked him.
Having summarized other evidence that is inconsistent with some of the trial testimony
about the details of the arrest, Ogle concludes “[a]ll of this evidence would impeach Woodgeard,
the state’s witness and provide access to the Schlup gateway.” Id. at PageID 3504. On the
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contrary, none of this evidence meets the Schlup threshold of new scientific or physical evidence
or reliable new eyewitness testimony.

Conclusion

Because Petitioner has not tendered new evidence of the quality required by Schlup,
supra, it is inappropriate to grant her an evidentiary hearing or expansion of the record to allow
the evidence she has tendered.

Her Objections to the Decision and Order should be

OVERRULED.
April 14, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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