Phillips v. Warden, Noble Correctional Institution
OPINION AND ORDER denying as moot 7 Motion to Stay; denying 10 Motion to Stay. Petitioner is ORDERED to advise the Court within ten (10) days how he wishes to proceed. Signed by Magistrate Judge Kimberly A. Jolson on 4/21/2017. (ew)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Case No. 2:16-cv-00763
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Kimberly A. Jolson
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 Joint Motion to Stay (Doc.
7); Petitioner’s Motion To Amend (Doc. 9); Petitioner’s Motion To Stay (Doc. 10);
Respondent’s Response In Opposition (Doc. 11); Petitioner’s Reply (Doc. 14) and the exhibits of
the parties. For the reasons that follow, the Joint Motion To Stay (Doc. 7) is DENIED AS
MOOT 1 and Petitioner’s Motion To Stay (Doc. 10) is DENIED.
FACTS AND PROCEDURAL HISTORY
State Court Proceedings
Petitioner challenges his December 2013 convictions after a jury trial in the Franklin
County Court of Common Pleas on one count of possession of cocaine with an accompanying
firearm specification, and having a weapon while under disability. The Ohio Tenth District
Court of Appeals summarized the facts and procedural history of the case as follows:
By indictment filed July 20, 2012, plaintiff-appellee, the State of Ohio, charged
appellant with one count of possession of cocaine, in violation of R.C. 2925.11, a
first-degree felony with an accompanying firearm specification, and one count of
Respondent has withdrawn the Joint Motion To Stay. See Response in Opposition (Doc. 11, PAGEID #: 39, n.1.)
having a weapon while under disability, in violation of R.C. 2923.13, a felony of
the third degree.
At trial, the state presented evidence that a trash pull conducted on January 27,
2012 at appellant’s residence produced a trace amount of cocaine and packaging
materials consistent with cocaine trafficking. A subsequent search warrant issued
on January 31, 2012, based in part on the result of the trash pull, yielded
approximately $5,000 in cash and a digital scale with a trace amount of cocaine
on it. The next day, February 1, 2012, appellant rented a storage unit at 5275
Two days later, on February 3, 2012, appellant was a passenger in his own vehicle
being driven by Bruce Wiggins. During a traffic stop and search of the vehicle,
police arrested appellant for possession of marijuana and cocaine. Police
conducted a search incident to arrest of appellant’s person and found an access
card for the storage unit. Later that day, police located the storage unit, and a
police canine alerted to the presence of a narcotics odor inside the unit. While
police waited for a search warrant to issue, two plain-clothes police officers
guarding the unit saw appellant driving his vehicle toward the unit. Two other
men, Wiggins and Deandre Green, were in the vehicle with appellant. The three
men attempted to flee the scene, but police eventually apprehended appellant.
Once the search warrant for the storage unit issued, police officers opened the unit
and found that it was largely empty. The only items in the storage unit were an
empty box and a black duffel bag. The duffel bag contained 138 grams of cocaine,
two firearms, and cash.
Following the trial, the jury returned guilty verdicts as to all counts. After a
sentencing hearing, the trial court sentenced appellant in a January 13, 2014
judgment entry to a term of imprisonment totaling 13 years. Appellant timely
appealed his conviction to this court, and that appeal is still pending. State v.
Phillips, 10th Dist. No. 14AP–79. 2
On January 13, 2014, appellant filed a motion for a new trial based on newly
discovered evidence pursuant to Crim. R. 33(A)(6). Appellant included with his
motion an affidavit from Green. The trial court conducted a hearing on appellant’s
motion on February 21 and March 28, 2014. Green, appellant’s only witness at
the hearing, testified that he approached appellant’s counsel after appellant’s
sentencing to inform him that the drugs found in appellant’s storage unit actually
belonged to Wiggins.
According to Green’s testimony, Wiggins called Green a week before appellant’s
arrest to tell Green that he “had came [sic] up on some stuff like and he was going
On November 20, 2014, the appellate court affirmed the judgment of the trial court. State v. Phillips, No. 14AP79, 2014 WL 6482778 (Ohio Ct. App. Nov. 20, 2014). On May 20, 2015, the Ohio Supreme Court declined to
accept jurisdiction of the appeal. State v. Phillips, 142 Ohio St.3d 1466 (2015).
to make a lot of money off of it.” (Feb. 21, 2014 Tr. Vol. I, 15–16.) Green
understood the “stuff” to mean drugs that Wiggins had stolen from someone else.
Green further testified that, on February 3, 2012, Wiggins called Green after
appellant’s arrest for drug possession. According to Green’s testimony, in this
conversation, Wiggins informed Green that appellant was going to jail, and
Wiggins said he needed to “find something to do with this other stuff that I got.”
(Feb. 21, 2014 Tr. Vol. I, 20.) Green then testified that, when he accompanied
Wiggins and appellant to the storage unit, it was Wiggins who yelled for appellant
to “pull off” and to “get out of here” after spotting the plain-clothes police
officers. (Feb. 21, 2014 Tr. Vol. I, 18.) When asked why he did not come forward
with this information before or during appellant’s trial, Green testified he “was
scared, and * * * didn’t want to get in no trouble also.” (Sic.) (Feb. 21, 2014 Tr.
Vol. I, 22.) Green also testified he did not realize appellant would face such a
severe sentence for these crimes.
In a decision and entry dated April 2, 2014, the trial court denied appellant’s
motion for a new trial. Appellant timely appeals.
State v. Phillips, No. 11AP-362, 2014 WL 5768688, at *1–2 (Ohio Ct. App. Nov. 6, 2014). On
November 6, 2014, the appellate court affirmed the trial court’s judgment. Id. On May 20,
2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Phillips,
142 Ohio St.3d 1466 (2015).
On March 14, 2016, Petitioner filed in the state trial court a Motion For Declaration That
Defendant Was Unavoidably Prevented From Discovering New Evidence Within 120-Day Time
Limit And For Leave To File A New Trial Motion. (Doc. 11-1, PAGEID #: 48). In the Motion,
Petitioner stated that the prosecutor notified him on February 24, 2016 that Detective Tye
Downard, formerly with the Reynoldsburg Police Department, had been charged with possession
with intent to distribute a controlled substance and subsequently committed suicide while in jail.
(Id. at PAGEID #: 49). Petitioner argued that Detective Downard worked as a lead investigator
in his case, and this newly-discovered evidence called into question the validity of the criminal
charges against him. (Id. at PAGEID #: 50, 53).
Petitioner argued further that the trial court should grant him a hearing on the Motion For
A New Trial to address this information and related issues. (Id. at PAGEID #: 54). Specifically,
It is long established that that the State has an independent obligation to disclose
exculpatory evidence. Brady v. Maryland, 373 U.S. 83 (1963). Further, a
conviction obtained through the use of false or tainted evidence, known to be such
by the State, must fail under the 14th Amendment. Napue v. Illinois, 360 U.S. 264
(1959). The only way to flesh out these issues is to grant a hearing on a motion
for a new trial.
On April 28, 2016, Petitioner filed a Supplement to his Motion For Leave To File New
Trial, indicating that he learned on April 27, 2016 that Detective Shane Mauger, another former
Reynoldsburg police officer involved in his case, agreed to plead guilty to federal charges
involving conspiracy to deprive persons of civil rights and federal program theft relating to his
misconduct as a Reynoldsburg police officer. (Id. at PAGEID #: 83–84). Detective Mauger
subsequently pleaded guilty to the charges against him, which involved his admission to
conspiring with Detective Downard between November 2006 and February 2016 to steal money
and property during and in the execution of police warrants. (See Doc. 2-1 in United States v.
Mauger, Case No. 2:16-cr-91, PAGEID #: 10–11).
Detective Mauger also admitted to
participating knowingly in the execution of search warrants containing false information as a part
of the conspiracy. (See id.).
Petitioner argued that the filing of criminal charges against these two police officers
warranted a new trial. (Doc. 11-1 at PAGEID #: 85). On December 14, 2016, however, the trial
court denied Petitioner’s Motion For A Declaration That He Was Unavoidably Prevented From
Discovering New Evidence Within The 120-Day Time Limit And For Leave To File A New
Trial Motion, finding that the detectives’ involvement in his case was minimal. (Id. at PAGEID
#: 141–42). Petitioner states that he filed a timely Notice of Appeal on January 11, 2017, in
which he raises a claim under Brady. (Doc. 14 at PAGEID #: 146). Petitioner’s appeal has not
been made a part of this Court’s record.
The Instant Petition And Related Motions
On August 4, 2016, Petitioner filed the instant Petition For A Writ Of Habeas Corpus
pursuant to 28 U.S.C. § 2254. Petitioner asserts that he was denied the right to the effective
assistance of counsel when his attorney failed to challenge the legality of the traffic stop and
qualifications of the canine or canine handler (claim one); that he was denied a fair trial based on
prosecutorial misconduct because the prosecutor improperly commented on his right to remain
silent (claim two); and that the evidence is constitutionally insufficient to sustain his
conviction(s) (claim three). (See Doc. 1). On August 15, 2016, the Court ordered Respondent to
make a return to the Petition within 20 days (Doc. 2), a deadline which the Court extended (See
Docs. 4, 6).
From there, this habeas case took an atypical procedural turn. On November 10, 2016,
the parties filed a Joint Motion To Stay the proceedings. (Doc. 7). Specifically, the parties
jointly sought to stay the proceedings pending Petitioner’s appeal of the denial of his Motion For
Leave To File A Motion For A New Trial. (Id.). Upon review of the Joint Motion, the Court
promptly scheduled a status conference.
During that conference, the Court explained to counsel that they may not simply agree to
a stay; rather, the relevant analysis is governed by the United States Supreme Court’s decision in
Rhines v. Weber, 544 U.S. 269 (2005). As discussed during the conference, Rhines pertains to
the analogous situation where a petition is mixed, in that it contains exhausted and unexhausted
claims. Hence, at the Court’s request, the parties agreed to submit supplemental briefing on the
Motion. (See Doc. 8).
Thereafter, the parties changed their positions. Trying to make this case fit more squarely
within the Rhines decision, Petitioner filed a Motion to Amend his Petition to add the following
ground for relief:
GROUND FOUR: A defendant is deprived of due process and his right to a fair
trial, when the State fails to disclose materially exculpatory evidence. Fifth, Sixth
and Fourteenth Amendments to the United States Constitution.
Supporting Facts: Malcolm Phillips was convicted based on the testimony of
two detectives who were subsequently indicted for crimes they committed while
in the line of duty during the time they were investigating and arresting Mr.
Phillips. This information was not disclosed to Mr. Phillips.
(Doc. 9 at 2). Petitioner also filed a Motion to Stay proceedings concurrent with the Motion to
Amend. (Doc. 10). In the Motion to Stay, Petitioner relied on Rhines to argue that proceedings
related to the mixed Petition should be stayed. (Id. at 2–3).
For its part, Respondent filed an Opposition to both the Motion to Amend and the Motion
to Stay the proceedings. (Doc. 11). As an initial matter, Respondent argues that Petitioner has
failed to show that his claim is potentially meritorious, which is required to warrant a stay under
Rhines. (Id. at 9). Respondent further argues that
[s]ince Phillips does not qualify for a stay, an amendment will create a mixed
petition, necessitating deletion of the Brady claim for the court to move ahead to
resolve the remaining claims. Alternatively, if the Brady claim is included in the
federal petition, the petition could be dismissed in its entirety as unexhausted.
(Id.). Respondent also argues that Petitioner’s claim was not fairly presented to the trial court, so
it “could ultimately be considered procedurally defaulted and therefore waived in the federal
habeas proceeding.” (Id. at n.2).
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner must
first exhaust his claims in the state courts before presenting them in federal court. 28 U.S.C.
§ 2254(b); see Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000). Additionally, a district
court has discretion to stay a mixed petition containing exhausted and unexhausted claims in
certain limited circumstances. Rhines, 544 U.S. at 269.
Given the procedural posture of this case, this Court is not faced with a “typical scenario
of a ‘mixed petition’ that includes both exhausted and unexhausted claims.” Santana v. Ryan,
No. 14-cv-14097, 2015 U.S. LEXIS 99672, at *9 (D. Mass. July 30, 2015). That is, as discussed
below, because the claims in the Petition are exhausted and the proposed claim is unexhausted,
this case does not fit the more typical scenario addressed in Rhines. Nevertheless, courts faced
with similar circumstances have found Rhines applicable. See, e.g., Santana, No. 14-cv-14097,
2015 U.S. Dist. LEXIS 99672, at *9 (finding the “stay-and-abeyance analysis is the same”
despite the fact that the unexhausted claim was not in the petition); Womack v. Saba, No. 1140138-FDS, 2012 U.S. Dist. LEXIS 26713, at *6 (D. Mass. Mar. 1, 2012) (same). Consistent
with those decisions, Rhines guides this Court’s analysis. Thus, the Court first examines the
exhaustion and timeliness of Petitioner’s claims and next considers if the limited circumstances
that warrant a stay are present here.
Exhaustion And Timeliness
As stated previously, a state prisoner must exhaust his available remedies in the state
courts before a federal habeas court may grant relief. Silverburg v. Evitts, 993 F.2d 124, 126 (6th
Cir. 1993). If a habeas petitioner has the right under state law to raise a claim by any available
procedure, the claim is not exhausted. 28 U.S.C. § 2254(b), (c). Additionally, a constitutional
claim for relief must be presented to the state’s highest court in order to satisfy the exhaustion
requirement. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); Manning v. Alexander, 912 F.2d
878, 881 (6th Cir. 1990). A habeas petitioner bears the burden of demonstrating that exhaustion
of the available state court remedies with respect to the claims presented for federal habeas
review. Prather v. Rees, 822 F.2d 1418, 1420 n.3 (6th Cir. 1987).
AEDPA also provides a limitations period and tolling provision intended to “promote[ ]
the exhaustion of state remedies while respecting the interest in the finality of state court
judgments.” Carey v. Saffold, 536 U.S. 214, 220 (2002) (quoting Duncan v. Walker, 533 U.S.
167, 178 (2001)). Relevant to the claims in the Petition, AEDPA provides that:
(d) (1) A 1–year period of limitation 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 limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
28 U.S.C. § 2244(d)(1)(A); see also Pierce v. Warden, No. 3:10cv00132, 2012 WL 5511220, at
*8 (S.D. Ohio Nov. 14, 2012) (noting that if a petitioner’s habeas petition “raises claims
connected to his trial and convictions, he knew or should have known about such claims during
the pendency of his initial attempt to directly appeal his convictions in state court”).
Pursuant to § 2244(d)(1)(A), the judgment of conviction became final on the three claims
in the Petition on August 18, 2015, ninety days after the Ohio Supreme Court’s May 20, 2015
dismissal of the appeal; i.e., when the time expired to file a petition for a writ of certiorari with
the United States Supreme Court. See Weese v. Sloane, No. 1:15-cv-122, 2016 WL 614001, at
*2–3 (N.D. Ohio Feb. 16, 2016) (“[F]or petitioners who seek review on direct appeal in the
Supreme Court of Ohio, ‘the one-year statute of limitations does not begin to run until the time
for filing a petition for a writ of certiorari for direct review in the United States Supreme Court
has expired.’”) (citations omitted). Consequently, the statute of limitations began to run the
following day and ran for a period of 209 days, until March 14, 2016. On that day, Petitioner
filed his Motion For Leave To File A Motion For A New Trial, which, as explained below, tolled
the running of the statute of limitations under 28 U.S.C. § 2244(d)(2).
Section 2244(d)(2) provides that “[t]he time during which a properly filed application for
State post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation under this subsection.” However,
in order to toll the running of the statute of limitations under that statute, a state post-conviction
or collateral action must have been “properly filed.” See, e.g., Hall v. Warden, Lebanon Corr.
Inst., No. 1:08CV75, 2009 WL 857979, at *7 (S.D. Ohio Mar. 25, 2009) (“During the one-year
limitations period, petitioner was entitled to statutory tolling under § 2244(d)(2) based on any
pending ‘properly filed’ applications for state post-conviction relief or other collateral review.”).
A state post-conviction or collateral action is “properly filed” if “its delivery and
acceptance are in compliance with the applicable laws and rules governing filings.” Artuz v.
Bennett, 531 U.S. 4, 8 (2000) (noting that “[t]hese usually prescribe, for example, the form of the
document, the time limits upon its delivery, the court and office in which it must be lodged, and
the requisite filing fee”). Thus, a post-conviction or collateral action dismissed by the state
courts as untimely is not “properly filed” under § 2244(d)(2) and would not toll the running of
the statute of limitations. Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005); see also Gorman v.
Brunsman, No. 1:03CV865-SJD, 2006 WL 1645066, at *7 (S.D. Ohio June 7, 2006).
Here, the trial court determined that Petitioner’s Motion For Leave To File A Motion For
A New Trial was properly filed under Ohio Criminal Rule 33 to the extent that “he clearly could
not have discovered and produced the evidence submitted in his Motion during his trial.” (Doc.
11-1, PAGEID #: 140 (emphasis in original)). However, the trial court denied Petitioner’s
Motion based upon its finding that the newly-discovered information did not materially affect
Petitioner’s substantial rights. (Id., PAGEID #: 140–42) (“[T]his Court is not at all convinced
that the impeachment value relevant to those two Reynoldburg officers is sufficient to undercut
the validity of a trial in which their peripheral participation was of so little consequence.”).
Petitioner’s appeal of the trial court’s decision denying his Motion remains pending. See Ohio v.
Phillips, No. 17AP-21 (Ohio Ct. App. 10th Dist.). Based upon the foregoing, Petitioner’s
properly filed Motion For Leave To File A Motion For A New Trial tolled the running of the
statute of limitations under 28 U.S.C. § 2244(d)(2). Thus, the statute of limitations has not yet
expired, and will not bar Petitioner from re-filing this action upon the exhaustion of the proposed
Stay Of These Proceedings
Under Rhines v. Weber, 544 U.S. at 269, a court may permit a stay only in certain
circumstances. See id. For instance, the court must determine that good cause exists for the
petitioner’s failure to exhaust the claims in the state courts. Id. at 277. Further, even if good
cause exists, the court may not grant a stay if the unexhausted claims are plainly meritless. Id.
“On the other hand, it likely would be an abuse of discretion for a district court to deny a stay
and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.” Id. at 278.
In this case, Petitioner seeks a stay of these proceedings pending exhaustion of his Brady
claim based on the prosecutor’s alleged failure to disclose the criminal activity of Detectives
Mauger and Downard. Petitioner can establish “good cause” for failing to exhaust his state
remedies as to the proposed amended claim and there is no indication that he engaged in
intentionally dilatory litigation tactics. (See Doc. 11-1, PAGEID #: 140 (opinion of the trial
court noting that Petitioner could not have discovered the evidence during trial). However, the
record fails to reflect that Petitioner’s unexhausted claim is potentially meritorious so as to
warrant a stay under Rhines.
In Brady v. Maryland, 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.” Id. at 86. Evidence is material “[i]f there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different.” United States v. Bagley, 473 U.S. 667, 682 (1985). “There is never a real ‘Brady
violation’ unless the nondisclosure was so serious that there is a reasonable probability that the
suppressed evidence would have produced a different verdict.” Strickler v. Greene, 527 U.S.
263, 281 (1999). “Impeachment evidence, as well as exculpatory evidence, falls within the
Brady rule.” O'Guinn v. Dutton, 88 F.3d 1409, 1418 (6th Cir. 1996). “In the absence of
prejudice, even assuming a violation of Brady, reversal is not required.” United States v. Jones,
766 F.2d 994, 998 n. 1 (6th Cir. 1985) (citing United States v. Campagnuolo, 592 F.2d 852, 861
& n. 9 (5th Cir.1979)). “Brady generally does not apply to the delayed disclosure of exculpatory
information, only to a complete failure by the prosecutor to disclose such information. Carter v.
Harry, No. 07–12211–BC, 2010 WL 2772349, at *5 (E.D. Mich. July 13, 2010) (citing United
States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002)).
Here, the trial court found that Petitioner had failed to establish that any of the newly
discovered evidence was material in that it affected his substantial rights. (Doc. 11-1 at PAGEID
#: 140–41). The trial court stated:
The question . . . is whether the evidence discovered is actually material to the
The short answer, at this point in time, is clearly “no.” This Court has examined
the transcript of the trial, and has further noted the facts as set forth in the Court of
Appeals’ decision, which is fifty-two (52) pages in length. It is evident that the
case against the Defendant is overwhelmingly a case that was handled by the
Whitehall Police Department, and not the Reynoldsburg police. Although
Downard and Mauger have a small role in the case, mainly at the very beginning,
the evidence against the Defendant was based on a warrant obtained by Whitehall
P.D. to search a storage garage. Whitehall police officers located a storage
facility, and a Franklin County Sheriff’s K-9 unit alerted Whitehall officers to the
specific unit in that facility.
In addition, the Defendant’s case was a total denial that the weapons and drugs
found in that storage unit belonged to him. Clearly, the Defendant did drive to the
storage facility and was apprehended while trying to leave (once he and the
occupants of the car realized that the police were there).
As such, therefore, this Court is not at all convinced that the impeachment value
relevant to those two Reynoldsburg officers is sufficient to undercut the validity
of a trial in which their peripheral participation was of so little consequence.
… There is incontrovertible evidence that the Reynoldsburg Police Department
had two very bad apples working there, with one now deceased by his own hand,
and the other doing prison time in a federal penitentiary. But to include the
Whitehall Police Department, or any of its officers and/or detectives, in that
wrongdoing is, at this moment, pure speculation which does not even begin to rise
to the level of permitting a Motion for a New Trial to be filed.
(Id. at PAGEID #: 141–42). These factual findings are presumed to be correct. 28 U.S.C.
§ 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of a factual issue
made by a State court shall be presumed to be correct.”).
Further, the trial court’s findings are supported by the lengthy factual recitation provided
by the state appellate court on direct appeal, which also shows that Detectives Downard and
Mauger played a minimal role in Petitioner’s case. See Phillips, 2014 WL 6482778, at *18. The
state appellate court summarized evidence in Petitioner’s case as follows:
On January 25, 2012, Mauger received an anonymous call regarding suspected
narcotics trafficking at a residence located at 5903 Little Brook Way. The caller
reported the license numbers for two vehicles parked at the residence. Based on
this call, Mauger conducted surveillance of the residence the next day, and he
verified the accuracy of the license numbers provided by the caller. Pursuant to a
subsequent vehicle registration check, Mauger identified appellant and
McWhorter as the owners. On January 27, 2012, Mauger performed a trash pull of
trash deposited at the end of appellant’s driveway. The trash pull resulted in the
recovery of several baggies wrapped with electrical tape. One of the baggies
contained a white residue. Mauger field tested the substance and concluded that it
Based on these facts, Mauger obtained a search warrant for 5903 Little Brook
Way and the vehicles registered to appellant and McWhorter. With the aid of
Downard and the CPD, Mauger executed the search warrant on January 31, 2012.
Both appellant and McWhorter were present at the time of the search. The search
resulted in the discovery of $5,020 in cash, a 9 mm weapon, a plastic baggie
containing cocaine residue, and a digital scale containing cocaine residue. FN9
FN9: The parties stipulated, pursuant to a laboratory report generated by an Ohio
Bureau of Criminal Identification and Investigation (“BCI & I”) forensic scientist,
that the residue in both the plastic baggie and on the digital scale was cocaine.
(State’s exhibit F.)
Three days later, on February 3, 2012, Adams conducted a traffic stop of
appellant’s vehicle based on a license plate illumination violation. Appellant was
seated in the front passenger seat; Wiggins was the driver. During the traffic stop,
Adams summoned a canine unit to the scene. After appellant and Wiggins were
removed from the vehicle, the canine alerted to the scent of narcotics inside the
vehicle. A subsequent search of the vehicle revealed marijuana “shake” on the
passenger’s side floor and cocaine in a bag in the middle of the backseat. FN10
(Dec. 11, 2013 Tr. 444.) Adams placed appellant under arrest and, pursuant to a
pat-down search, discovered a business card for a public storage facility. The
card included the name and address of the storage facility, an eight-digit access
code to the facility, and the number of a particular storage unit within that facility.
Adams subsequently made a copy of the storage facility card, returned the
original to appellant, and thereafter released him.
FN10: The parties stipulated, pursuant to a laboratory report generated by a BCI
& I forensic scientist, that the substance inside the bag was cocaine. (State’s
Later that day, Grinstead was informed of the traffic stop and subsequent
discovery of the storage facility card on appellant’s person. Grinstead contacted
the storage facility and was informed by facility management that, on February 1,
2012, appellant rented a storage unit at a facility located on Gender Road.
Grinstead and Wilder traveled to the Gender Road location and spoke to facility
management, who verified that appellant leased unit # 1614. FN11 Grinstead and
Wilder then drove to unit # 1614 and summoned a canine unit to the scene. After
the narcotics dog alerted to narcotics in unit # 1614, Grinstead prepared a search
warrant affidavit for unit # 1614. He left Wilder to safeguard the storage unit
while he obtained a search warrant from a judge.
FN11: The parties stipulated that records kept by the Gender Road storage
facility in the ordinary course of business established that appellant entered into a
rental agreement for unit # 1614 on February 1, 2012. (State’s exhibit D.)
Thereafter, Wilder requested Downard’s aid in safeguarding the storage unit.
FN12 Downard thereafter met Wilder at the storage unit. Both Downard and
Wilder were dressed in plain clothes and drove unmarked police vehicles. Wilder
noticed a vehicle driving slowly in the vicinity of unit # 1614. FN13 Wilder noted
the license number and identified the vehicle as the one involved in the traffic
stop earlier that day. In addition to appellant, the vehicle contained two other male
occupants—Wiggins in the front passenger seat and Green in the back seat.
Wilder eventually positioned his vehicle “[d]river’s side window to driver’s side
window” with appellant’s vehicle, displayed his police badge, and yelled
“[p]olice. Get your hands up where I can see them.” (Dec. 11, 2013 Tr. 483.) At
trial, Downard corroborated this testimony.
FN12: Wilder testified that he enlisted Downard for safety reasons, as drug
traffickers frequently store narcotics, large amounts of cash, and firearms in
public storage units.
FN13: Because he was aware of the ongoing investigation surrounding appellant,
and due to concerns that appellant might drop off or retrieve narcotics from the
storage unit, Wilder familiarized himself with appellant’s photograph and license
number of his vehicle.
According to Wilder, Green “frantically immediately reached down to the left of
his seat * * * as if he was maybe trying to place something there or pick
something up that he had dropped.” (Dec. 11, 2013 Tr. 485.) Because appellant
did not immediately heed Wilder’s command, Wilder believed appellant was
going to drive away. Wilder again displayed his police badge, identified himself
as a police officer, produced his service weapon, and again ordered appellant and
the other occupants to “[g]et your hands up where I can see them.” (Dec. 11, 2013
Tr. 484.) Appellant immediately drove off at a high rate of speed. Wilder pursued
the vehicle and eventually located it at the front gate. Wilder ordered appellant to
stop the vehicle. Appellant complied and Wilder approached the vehicle. As he
did so, Wilder noticed a “very strong odor of burning marijuana coming from the
vehicle.” (Dec. 11, 2013 Tr. 488.) Wilder ordered appellant and the passengers to
exit the vehicle. As Green exited, Wilder observed marijuana vegetation fall from
his lap and a cigar filled with marijuana fall to the floor. Pursuant to a search of
the vehicle, Wilder recovered a digital scale containing white residue in the
console area between the front seats. The white residue was field tested and
determined to be cocaine.
Wilder removed the keys from the ignition and found two keys to the storage unit
on the key chain. FN14 About the same time, Grinstead returned with a search
warrant for the storage unit. Wilder thereafter used the keys found on appellant’s
key chain to open two locks on the storage unit. Inside the storage unit was a
black duffel bag containing two operable firearms, a bag of loose ammunition,
$54,800 in cash, and 138 grams of powder cocaine. FN15
FN14: Each storage united contains two separate locks accessed by two separate
FN15: The parties stipulated, pursuant to laboratory reports generated by BCI & I
forensic scientists, that both firearms were operable and that the narcotics
recovered constituted 138 grams of cocaine. (State’s exhibit H.)
Appellant, Green, and Wiggins were all searched. Police recovered a storage
facility card from appellant which included the number of the storage unit, #
1614, as well as an access code to the facility. Appellant was arrested; Wiggins
and Green were released.
Id. at *18–20.
Based upon the record, it does not appear that Petitioner can establish that evidence
regarding the criminal charges against Detectives Downard and Mauger constitutes material
evidence within the meaning of Brady such that his proposed amended claim is potentially
meritorious and warrants a stay of proceedings pending exhaustion. See Rhines, 125 S. Ct. at
270. Thus, the Court in its discretion finds a stay inappropriate in this case.
Based upon this Court’s finding that a stay is inappropriate, Petitioner must decide how
he wishes to proceed. If Petitioner opts to pursue his current strategy, he may request a ruling on
a Motion to Amend, which Respondent opposes as futile. If the Court grants that Motion, the
Petition would be mixed and may be subject to dismissal under the total exhaustion requirement
established in Rose v. Lundy, 455 U.S, 509,518–19 (1982) and preserved by AEDPA, given this
Court’s determination that the stay-and-abeyance procedure is inapplicable.
On the other hand, Petitioner may opt to withdraw his Motion to Amend, deleting the
unexhausted claim and simply proceed on the exhausted claims in the Petition. If Petitioner does
so, however, he may be barred from bringing his proposed Brady claim at a later time due to
AEDPA’s limitation on second or successive petitions. See 28 U.S.C. § 2244(b).
Finally, Petitioner may choose to withdraw his habeas petition and seek dismissal of this
case without prejudice so that he may file later a fully exhausted petition containing his Brady
claim, assuming he could file any such petition prior to the expiration of the applicable statute of
Accordingly, Petitioner is ORDERED to advise the Court within ten (10) days how he
intends to proceed.
For the foregoing reasons, the Joint Motion To Stay (Doc. 7) is DENIED AS MOOT
and the Motion To Stay (Doc. 10) is DENIED. Petitioner is ORDERED to advise the Court
within ten (10) days how he wishes to proceed.
Procedure on Objections to Order
Any party may, within fourteen days after this Order is filed, file and serve on the
opposing party a motion for reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A), Rule
72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt. I., F., 5.
The motion must
specifically designate the order or part in question and the basis for any objection. Responses to
objections are due fourteen days after objections are filed and replies by the objecting party are
due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside
any part of this Order found to be clearly erroneous or contrary to law.
This Order is in full force and effect, notwithstanding the filing of any objections, unless
stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.
IT IS SO ORDERED.
Date: April 21, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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