Chinn v. Warden Mansfield

Filing 213

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Motion to Alter or Amend the judgment (ECF No. 210) be denied. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied a certificate of appealability on the issues raised on the Motion. Objections to R&R due by 8/7/2020. Signed by Magistrate Judge Michael R. Merz on 7/24/2020. (kpf)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVEL CHINN,
Petitioner,

:

- vs -

Case No. 3:02-cv-512
District Judge Sarah D. Morrison
Magistrate Judge Michael R. Merz

CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This capital habeas corpus case is before the Court on Petitioner’s Motion to Amend the
Judgment (ECF No. 210). Respondent opposes the Motion (Memo. in Opp., ECF No. 211) and
Petitioner has filed a Reply Memorandum in support (ECF No. 212).
As a post-judgment motion, the Motion to Amend is deemed referred under 28 U.S.C. §
636(b)(3) for a report and recommendation. Ultimate decision of the Motion is reserved to
District Judge Morrison.

Authority vs. Propriety

Petitioner’s Motion begins with a discussion of the authority of the Court to amend its
judgment, focusing on the recent Supreme Court decision in Banister v. Davis (Motion, ECF No.
210, PageID 10493, citing ___ U.S. ____, 140 S.Ct. 1698 (2020). There, the Supreme Court
held: “The Rule enables a district court to ‘rectify its own mistakes in the period immediately
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following’ its decision.” Banister, 140 S.Ct.at 1703 , quoting White v. New Hampshire Dep’t of
Emp’t Sec., 455 U.S. 445, 450 (1982); accord: Browder v. Dir., Dep’t of Corr. of Ill., 434 U.S.
257, 270-71 (1978). The Supreme Court noted the historical derivation of the rule: “Rule 59(e)
derives from a common-law court’s plenary power to revise its judgment during a single term of
court, before anyone could appeal,” and it is a “one-time effort to bring alleged errors in a justissued decision to a habeas court’s attention, before taking a single appeal.” Banister, 140 S. Ct.
at 1709, 1710.
Banister was a habeas case, and the question on which certiorari was granted was
whether a Rule 59(e) motion constituted a second or successive habeas petition subject to the
strictures of 28 U.S.C. § 2244(b). Banister, 140 S. Ct. at 1702. 1 Because Banister’s motion was
held by the Court not to be a second or successive habeas petition, it stopped the running of the
time for appeal, with the thirty-day limit beginning again when the Rule 59(e) motion was
decided. Banister noted that Rule 59(e) practice in habeas cases was traditional long before the
AEDPA. 140 S.Ct. at 1706, citing Browder, 434 U.S. at 258, 271.
But the Banister Court did nothing to broaden the scope of matters to be considered on a
59(e) motion, noting:
[A] prisoner may invoke the rule only to request “reconsideration
of matters properly encompassed” in the challenged judgment.
White, 455 U.S. at 451, 102 S.Ct. 1162, 71 L.Ed.2d 325. And
“reconsideration” means just that: Courts will not entertain
arguments that could have been but were not raised before the justissued decision.

140 S. Ct. at 1708. Chinn contests this conclusion, arguing “[w]hen addressing Rule 59 just this
term, the Supreme Court did not adopt the stringent standard proposed by the old cases the
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“We granted certiorari to resolve a Circuit split about whether a Rule 59(e) motion to alter or amend a habeas
court’s judgment counts as a second or successive habeas application. 588 U. S. ____, 139 S.Ct. 2742, 204 L.Ed.2d
1130 (2019). We hold it does not, and reverse.” Banister, 140 S. Ct. at 1705.

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Warden cites.” (Reply, ECF No. 212, PageID 10508). But the Supreme Court had before it the
question of the authority of a District Court to deal with a Rule 59(e) motion in a habeas case 2,
rather than the propriety of its granting relief within that authority.
Thus, Banister confirms the authority of a district court to entertain a Rule 59(e) motion
in a habeas case, but reaffirms rather than broadening the scope of matters to be considered on
such a motion. The proper scope of a Rule 59(e) motion is as set forth in the United States Court
of Appeals for the Sixth Circuit precedent cited below, whether the standard be regarded by
Chinn as “stringent” or not.
Respondent does not question the authority of the Court to amend the judgment, but
argues Petitioner has not shown he is entitled to relief under traditional application of the Rule,
which Banister did not change (Response, ECF No. 211, PageID 10504-06). Indeed, it is
undisputed on what matters a district court may consider on a Rule 59(e) motion: “To grant a
motion filed pursuant to Rule 59(e) . . . , ‘there must be ‘(1) a clear error of law; (2) newly
discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent
manifest injustice.’” Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6th Cir. 2009), quoting
Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2006).
Motions to alter or amend judgment may be granted if there is a
clear error of law, see Sault Ste. Marie Tribe, 146 F.3d at 374,
newly discovered evidence, see id., an intervening change in
controlling constitutional law, Collison v. International Chem.
Workers Union, Local 217, 34 F.3d 233, 236 (4th Cir. 1994);
Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 90-91 n.3 (1st Cir.
1993); School District No. 1J v. ACANDS, Inc., 5 F.3d 1255, 1263
(9th Cir. 1993), or to prevent manifest injustice. Davis, 912 F.2d at
133; Collison, 34 F.3d at 236; Hayes, 8 F.3d at 90-91 n.3. See also
North River Ins. Co. v. Cigna Reinsurance Co., 52 F.3d 1194, 1218
(3d Cir. 1995).
2

Had the Supreme Court adopted the Fifth Circuit’s position that Bannister’s 59(e) motion was a second or
successive petition, the District Court would have lacked jurisdiction to consider it. Burton v. Stewart, 549 U.S. 147
(2007); Franklin v. Jenkins, 839 F.3d 465(6th Cir. 2016).

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Gencorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999), accord, Nolfi v.
Ohio Ky. Oil Corp., 675 F.3d 538, 551-52 (6th Cir. 2011), quoting Leisure Caviar, LLC v. United
States Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010).
Petitioner claims the judgment embodies a clear error of law in that it applied the
incorrect standard for assessing the materiality of evidence suppressed in violation of Brady v.
Maryland (Motion, ECF No. 210, PageID 10594-95, citing 373 U.S. 83 (1963). The District
Court’s decision is reported at Chinn v. Warden, Chillicothe Corr. Inst., No. 3:02-cv-512, 2020
U.S. Dist. LEXIS 94062 (S.D. Ohio May 29, 2020) (Morrison, J.). The conclusions which
Petitioner states contain a “clear error of law” are in the following paragraph:
This Court finds that the additional impeachment information, had
counsel even chosen to use it, would not have so conclusively
undermined Washington’s testimony at the trial that it would have
created a reasonable probability that the result of the trial would
have been different. A Brady violation will not result in a new trial
for a criminal defendant unless a court concludes that the
improperly withheld evidence “could reasonably be taken to put
the whole case in such a different light as to undermine confidence
in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct.
1555, 131 L.Ed.2d 490 (1995). Here, it is not apparent whether or
to what extent trial counsel would have used the juvenile records.
Additionally, the jury was made aware of discrepancies in
Washington's account, but still found him to be a credible witness.
The jury was made aware that Washington sometimes had
difficulty remembering details accurately such as Petitioner’s
number in the lineup, Petitioner’s height, which hand Petitioner
held the gun, and how he had initially met Petitioner. Additionally,
there was testimony that Washington could not read and write in
cursive. Although the juvenile records may have been helpful to
counsel, the Court cannot conclude that there was a reasonable
probability that had they been disclosed, the result of the
proceedings would have been different.
Chinn, 2020 U.S. Dist. LEXIS 94062 at *37-38. Petitioner claims this is clear error because
“Chinn should not lose merely if ‘the jury could have’ been unmoved by the suppressed
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evidence; only if it is convinced ‘that [the jury] would have’ discounted that evidence may the
Court find the withheld evidence to be immaterial.” (Motion, ECF No. 210, PageID 10495
(emphasis in original), quoting Smith v. Cain, 565 U.S. 73, 76 (2012); citing Wearry v. Cain, 136
S.Ct. 1002, 1007 (2016)). Petitioner criticizes the Court’s decision for failure to discuss these
cases and apply them. Id. at PageID 10495-96
The flaw in this argument is that neither Smith nor Wearry is applicable to this case.
Because the state courts decided Chinn’s Brady claim on the merits, this Court’s task in habeas
was to decide if the state court’s decision was contrary to or an objectively unreasonable
application of clearly established Supreme Court precedent. The relevant state court decision is
that of the Ohio Second District Court of Appeals. State v. Chinn, No. 18535, 2001 Ohio App.
LEXIS 3127 (Ohio App. 2nd Dist. Jul. 31, 2001). Smith was not decided until almost eleven
years later and Wearry another five years after that. State court decisions on the merits of federal
constitutional questions are to be measured by Supreme Court precedent existing at the time of
the state court decision. Clearly established law means the law that existed at the time of the last
state court adjudication on the merits. Williams (Terry) v. Taylor, 529 U.S. 362, 412 (2000).
Smith and Wearry were not clearly established federal law at the time the Second District
rejected Chinn’s Brady claim. Therefore, it was not a clear error of law to fail to apply them to
evaluating Chinn’s Brady claim, even assuming they adopt a more liberal materiality standard
than the Second District applied.
Without purporting to do so, Petitioner essentially asks this Court, in the person of one of
its newest judges, for a de novo consideration of his Brady claim: “Chinn implores this Court to
review the suppressed evidence and consider the following information contained within.”
(Motion, ECF No. 210, PageID 10497 (emphasis added)). While the Court has authority to

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reconsider, the costs of doing so must be remembered. As Chief Judge Marbley has written in a
published opinion, reconsideration consumes scarce judicial resources. Meekison v. Ohio Dep't
of Rehabilitation & Correction, 181 F.R.D. 571, 572 (S.D. Ohio 1998).
Very considerable judicial resources have already been devoted to this case. The murder
of which Petitioner was convicted occurred January 30, 1989. The “adult” bookstore behind
which the victim was kidnapped before being executed was demolished so long ago that most
Daytonians do not remember it. The Common Pleas Judge who tried the case, William
McMillan, has long since retired.

The distinguished panel of Second District Judges who

decided the Brady claim – Frederick Young, William Wolff, and James Brogan – have also long
since retired; indeed, Judge Wolff’s successor will retire at the end of 2020. This habeas case
was filed here in 2002.

Like the Chancellors who presided seriatim over Jaryndyce v.

Jaryndyce 3, Judge Morrison inherited this case upon assuming office (ECF No. 199) and
promptly decided it. But even if she denies the Rule 59(e) Motion, the case will not be over
because this Court has granted a certificate of appealability on the Brady claim. Chinn, 2020
U.S. Dist. LEXIS 94062 at *212-13. Should the Sixth Circuit take the usual amount of time it
does to consider capital cases without an imminent execution date, it is unlikely the undersigned
will still be on the bench should it order a remand. In contrast, all three of the attorneys who
signed the Motion were admitted to practice more than ten years after the crime in suit.
Our American legal system’s current manner of handling capital cases, with its
permission for continual demands for reconsideration, erodes public confidence in the judiciary,
both by keeping cases from finality for decades and then producing middle-of-the-night Supreme
Court decisions. See Gomez v. U.S.D.Ct., N.D. Cal., 503 U.S. 653 (1992), superseded on other
grounds by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat.
3

CHARLES D ICKENS, BLEAK HOUSE (1852-53).

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1214; Barr v. Purkey, 2020 U.S. LEXIS 3576 (Jul. 16, 2020). This Court should not encourage
repeated demands for reconsideration by reconsidering Chinn’s Brady claim de novo.

Conclusion

It is respectfully recommended that the Motion to Alter or Amend the judgment (ECF
No. 210) be denied. Because reasonable jurists would not disagree with this conclusion, it is also
recommended that Petitioner be denied a certificate of appealability on the issues raised on the
Motion.

July 24, 2020.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. A party may
respond to another party’s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal.

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