Chinn v. Warden Mansfield

Filing 86

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Chinn's Objections are unpersuasive. The Magistrate Judge accordingly again respectfully recommends that the Petition be dismissed with prejudice, but that Chinn be granted a certificate of appealability on Grounds One, Three, Five A, and Thirteen. Objections to R&R due by 7/15/2013. Signed by Magistrate Judge Michael R Merz on 6/28/2013. (kpf1)

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

Case No. 3:02-cv-512
:

District Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

-vs-

WARDEN, Mansfield Correctional
Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This capital habeas corpus case is before the Court on Petitioner’s Objections (Doc. No.
63) to the Magistrate Judge’s Report and Recommendations on the merits of the case as it stood
before the 2012 Amended Petition (the “Original Report,” Doc. No. 60). The Warden has filed a
Response to the Objections (Doc. No. 66) and Judge Sargus has recommitted the matter to the
Magistrate Judge for a supplemental report and recommendations in light of the Objections and
Response (Doc. No. 76).

Procedural Status of the Case

The murder in this case occurred January 30, 1989. The case was in the Ohio courts
continuously from the time Chinn was indicted on March 3, 1989, until he filed his Petition here
November 4, 2002. As filed, the Petition included twenty claims for relief (Doc. No. 3). On
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Respondent’s Motion, Judge Sargus dismissed Claims for Relief 5(C), 7, 11, 14, 17, and 19 as
procedurally defaulted and Claims for Relief 9(D) and 9(I) on the merits (Opinion and Order,
Doc. No. 30). The Original Report recommended that the remaining claims be dismissed with
prejudice and that a certificate of appealability issue as to Claims for Relief One, Three, Five(A)
and Thirteen (Doc. No. 60, PageID 923). The Warden filed no objections on the certificate of
appealability issues, but Chinn objects to the recommended disposition of all the claims covered
in the Original Report (Objections, Doc. No. 63).
After the present Objections became ripe, Chinn filed an Amended Petition adding
Grounds for Relief Twenty-One and Twenty-Two relating to Ohio’s current lethal injection
protocol (Doc. No. 72). The Warden filed a Return to the Amended Petition (Doc. No. 79),
Chinn filed a Reply (Doc. No. 81) and the Warden has filed a Sur-Reply (Doc. No. 84). The
issues raised by the Amended Petition have not yet been the subject of a report and
recommendations and are not dealt with in this Supplemental Report, pending determination that
those claims are ripe for decision.

Background Facts

The background facts of this case, as recited by the Ohio Supreme Court, are as follows:
On the evening of January 30, 1989, Davel “Tony” Chinn,
appellant, completed a midterm examination at Cambridge
Technical Institute in Dayton. Later that night, fifteen-year-old
Marvin Washington saw appellant near Courthouse Square in
downtown Dayton. Washington, who had known appellant for
approximately one year, knew him only by the name of “Tony.”
Washington and appellant spent part of the night drinking beer and
loitering around the downtown area. At some point, appellant
showed Washington a .22 caliber nickel-plated revolver and
suggested that they look for someone to rob. At approximately
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11:00p.m., Washington went into an adult bookstore on South
Ludlow Street and was ejected from the store because of his age.
Thereafter, Washington and appellant loitered in the area of South
Ludlow Street looking for someone to rob.
Meanwhile, Gary Welborn and Brian Jones had pulled their cars
into a parking lot at the corner of South Ludlow Street and Court
Street and had parked side-by-side in opposite directions to
converse with each other through their driver’s side windows.
Appellant and Washington spotted the two men and decided to rob
them. Washington approached Jones’s vehicle from the rear, and
appellant approached Welborn’s car from the rear. Appellant
pulled out a small silver revolver, pressed it against the side of
Welborn’s head, and demanded money. Welborn saw
Washington’s face, but he was unable to see the face of the
gunman. Welborn handed his wallet to Washington, and Jones
handed his wallet to the gunman. According to Welborn, “the guy
with the gun said we’d better have at least a hundred dollars
between us or he’d kill us both.” After emptying the victims’
wallets of money, the two assailants began discussing which car
they wanted to steal. Following a brief discussion, they decided to
steal both cars. Washington got into the driver’s side of Jones’s car
and forced Jones into the passenger’s seat. Appellant instructed
Welborn to remain still. As appellant began walking toward the
back of Welborn’s vehicle, Welborn seized the opportunity to
escape. At trial, Welborn testified, “The guy, he comes around. He
starts walking around my car, telling me not to touch my keys. He
still has the gun pointed at me. I watch him in my rearview mirror
and sideview mirror. As soon as he gets behind my car, I duck
down. I thought he was going to kill me now or later anyway so I
ducked down in my car seat, threw it in drive, and took up off [sic]
Ludlow the wrong way, straight to the police station.” Welborn
arrived at the station at approximately 11:30 p.m., and reported the
incident to police.
After Welborn had escaped, appellant got into the back seat of
Jones’s car and held the revolver to Jones’s neck while
Washington drove the car away from Dayton and toward an area in
Jefferson Township. At some point, appellant instructed
Washington to turn the vehicle around and to pull over to the side
of the road. Washington complied with appellant’s instructions.
After Washington had stopped the car, he leaned forward in the
driver’s seat so that appellant could exit the two-door vehicle from
the driver’s side. According to Washington, appellant got out of
the car and walked around to the passenger’s side. Appellant then
got Jones out of the car and shot him. Appellant and Washington
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drove away from the scene in Jones’s automobile. While fleeing
from the scene, appellant told Washington that he shot Jones
because Jones could have identified them and because Jones
“didn’t have enough money.” Appellant told Washington that he
had shot Jones in the arm.
Stacy Ann Dyer lived at 5500 Germantown Pike in Jefferson
Township. Dyer witnessed the shooting but did not see the
gunman’s face. Dyer testified that on January 30, 1989, at
approximately 11:30 p.m., she had just arrived home and parked in
her driveway facing the street. At that time, Dyer saw a black twodoor Chevrolet Cavalier pull off to the side of the road on
Germantown Pike. Dyer observed a man get out of the driver’s
side of the vehicle and walk over to the passenger’s side. She also
saw the silhouette of a person exiting the vehicle from the
passenger’s side. The two people then walked to the back of the
car. At that moment, Dyer heard a gunshot and a scream. The
victim ran through Dyer’s yard and fell to the ground in her
neighbor’s yard. Dyer then saw the black car speed away from the
scene. Dyer ran inside her house and informed her father and her
sister what had happened. Dyer’s sister called police, and Dyer and
her father went outside to check on the victim. They found the
victim, Brian Jones, on his knees with his face to the ground. Dyer
asked the victim whether he was injured, but Jones did not
respond. When police and paramedics arrived at the scene, Jones
was still breathing but was unconscious. He never regained
consciousness and was pronounced dead on arrival at the hospital.
Dr. David M. Smith performed the autopsy. Smith found that Jones
had died as a result of a massive acute hemorrhage due to a
gunshot wound to his arm and chest. Smith found that the
projectile had entered through Jones’s left arm, had proceeded
directly into Jones’s chest, and had perforated the main pulmonary
artery. Smith recovered the .22 caliber lead projectile from an area
near the base of Jones’s heart. Carl H. Haemmerle, an expert in
firearms, examined the .22 caliber projectile and determined that it
had been fired from a revolver. He also examined the sweatshirt
that Jones had been wearing at the time of the shooting. Evidence
revealed that the muzzle of the weapon had been in direct contact
with the garment at the time the shot was fired.
Following the shooting, Washington and appellant drove in Jones’s
car to 5214 Lome Avenue in Dayton. There, Washington
introduced appellant to Christopher “Bay” Ward. Ward testified
that, on January 31, 1989, at approximately 12:30 or 1:00 a.m.,
Washington had pulled up to 5213 Lome Avenue in the black
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Chevrolet Cavalier and had introduced Ward to a man named
“Tony,” who was seated in the front passenger’s seat. Ward spoke
to Washington for approximately thirty to forty-five minutes until
Washington and the man he was with drove away. Later that night,
Washington returned to Lome Avenue and told Ward that “Tony”
had shot someone in Jefferson Township.
On February 5, 1989, police arrested Washington based on
information they had received from Ward. Washington confessed
to police and named Tony as the killer. However, Washington was
unable to give police the suspect’s last name and address. On
February 7, Washington helped police prepare a composite sketch
of Tony. Later, after police had nearly exhausted all leads in their
search for Tony, the composite sketch was released to the news
media. On Wednesday, February 22, 1989, a Dayton area
newspaper printed the composite sketch along with an article
indicating that the suspect’s name was Tony.
Shirley Ann Cox worked as a receptionist in her husband’s law
office. On Thursday, February 23, two men walked into the office.
One of the men identified himself as Tony Chinn and requested to
see Cox’s husband. Cox informed the man that her husband was
not available. That night, while Cox was reading the previous
day’s newspaper, she saw the composite sketch of the suspected
killer. She said to her husband, “My God, I don’t believe this.”
“This Tony Chinn that was in [the office] this morning is in the
paper.” On Friday, February 24, Cox called police to inform them
that she had seen the suspect and that his name was Tony Chinn.
After speaking to Cox, police obtained a photograph of appellant
and placed it in a photo array with the pictures of five other men.
On February 24, police showed the photo array to Washington and
to Ward. Washington positively identified appellant as the killer.
Additionally, Ward identified appellant as the man he had seen in
the passenger’s seat of the victim’s car-the man Washington had
referred to as “Tony.” That same day, on February 24, police
arrested appellant in connection with murder.
On February 27, police conducted a lineup. Washington, Ward,
Cox, Dyer, and Welborn all viewed the lineup. Dyer and Welborn
could not identify appellant. Welborn attempted to make a
selection based on the voices of the subjects but chose someone
other than appellant. Ward and Cox were able to positively
identify appellant. Washington initially indicated that the killer
was not in the lineup. However, after leaving the room where the
lineup was conducted, Washington summoned Detective David
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Lantz into an interview room and told him that number seven in
the lineup (appellant) was the killer. Washington explained to the
detective that he had previously indicated that appellant was not in
the lineup out of fear that appellant was able to see him through the
screen in the room where the lineup was conducted.
State v. Chinn, 85 Ohio. St. 3d 548, 553 (1999).

Analysis

First Ground for Relief: Failure to Disclose Brady Material

In his first claim for relief Chinn argues that his conviction must be reversed because the
State failed to disclose impeaChinng evidence about its witness Marvin Washington, specifically
that Washington was moderately retarded with neuropsychological deficits which might have
impacted his credibility. (Petition, Doc. No. 3 at 8); (Traverse, Doc. No. 27, PageID 285.)
The Ohio Second District Court of Appeals decided this claim on the merits, applying
Brady v. Maryland, 373 U.S. 83 (1963). State v. Chinn, 2001 Ohio App. LEXIS 3127 (2nd Dist.
2001). Because the state courts decided this claim on the merits, the Original Report concluded
our review was required to be deferential under 28 U.S.C. § 2254(d)(1)(Original Report, Doc.
No. 60, PageID 783).
For the most part Petitioner’s Objections reiterate what was argued in his Petition and
Traverse (Objections, Doc. No. 63, PageID 944-952). He takes exception to the holding that,
although the material could have been used to impeach Washington, it failed to meet the other
Brady prongs. “It does not follow that the impeachment of the State’s key witness would be
immaterial, although the Magistrate Judge somehow came to that conclusion.” (Objections, Doc.
No. 63, PageID 945.)

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Under Brady, evidence is material if there is a Areasonable probability that, had the
evidence been disclosed, the result of the proceeding would have been different.@ Cone v. Bell,
556 U.S. 449, 469-470 (2009). Reasonable probability means the likelihood of a different result
is great enough to Aundermine confidence in the outcome of the trial.@ Kyles v. Whitley, 514 U.S.
419, 434 (1995).

A[E]vidence impeaChinng an eyewitness may not be material if the State=s

other evidence is strong enough to sustain confidence in the verdict.@ (Objections, Doc. No. 63,
PageID 944) citing Smith v. Cain, ___ U.S. ___, 132 S. Ct. 627, 630 (2012)(emphasis added).
Petitioner argues that the State=s evidence against him was not strong and the jury=s
verdict was dependent on the testimony of Marvin Washington. As support he cites to the Ohio
Supreme Court’s opinion that A[t]he state=s case against [him] hinged on the testimony of Marvin
Washington. If the jury accepted Washington=s testimony, the jury was certain to convict
appellant, but if the jury did not believe Washington, it was certain to acquit appellant of all
charges.@ State v. Chinn, 85 Ohio St. 3d 548, 561 (1999). Chinn maintains that in the Original
Report, A[t]he Magistrate Judge listed reasons the jury might still believe Washington=s testimony
[if they had had the additional impeachment evidence], but gave no reasons that show the jury
would have still believed Washington.@ (Objections, Doc. No. 63, PageID at 945.) Additionally,
Chinn objects that the Original Report listed the evidence available at trial to support the
conviction, but other than the testimony of Washington, fails to specify what evidence was
considered.
Chinn cites to various discrepancies within Washington’s testimony, to wit; that he had
difficulty remembering details accurately, specifically as to Chinn’s number in the photo array
and police lineup and that he had met Chinn through Henry Walker and Stephanie Woods.
(Objections, Doc. No. 63, PageID 946-49.) He also notes discrepancies in various reports as to

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the height of the man with Washington and Jones, all of which place the shooter closer to the
height of the victim (about 5'10) whereas Chinn is only about 5'6. Id. Finally, he reiterates that
he had an alibi on the night of the murder.
The evidence cited above by Chinn was before the jurors and trial judge. As quoted in
the Original Report, the evidence relied on by both the state courts and this Court included:
From the time of his interview to the time of his trial testimony,
Washington’s version of events remained consistent, coherent, and
plausible. When making his subsequent identifications of Chinn,
Washington identified him from a second photo spread after
stating that the defendant was not present in the first spread. He
later identified Chinn after a line-up. There was a corroboration of
events and identification by other witnesses. Additionally, there
was testimony as to Washington’s high level of adaptive
functioning. Finally, defense counsel himself testified that he
might have used the information contained within the records for
impeachment purposes, but he did not feel Washington would have
met the criteria for mental retardation. (Trial Tr. Vol. VI at 129134.) The juvenile records were not material to guilt, nor is there a
reasonable probability that had they been disclosed, the result of
the proceeding would have been different.
(Original Report, Doc. No. 60 at PageID 788-89.) The corroboration included detailed testimony
from Christopher Ward, who spoke with Washington and ATony@ for about half an hour on the
night of the murder. In addition, the depiction of the sequence of events from Stacy Dyer
corroborated the testimony of Washington. Information was before the jury as to Washington’s
identification of Chinn, and initial lack thereof, in the police lineup, as well as the discrepancy as
to what number he selected from the photo array. Likewise, the jury was made aware through
the trial testimony of Detective Lantz that Washington told him that he met Chinn through Henry
Walker and Stephanie Woods, but when questioned, both Walker and Woods denied knowing
Chinn. It is up to the trier of fact to make a determination on both credibility and as to how
much weight each piece of evidence should be afforded.
When determining whether the withheld information was material and therefore
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prejudicial, habeas courts consider it in light of the evidence available for trial that supports the
petitioner’s conviction. See Towns v. Smith, 395 F.3d 251, 260 (6th Cir. 2005); Clinkscale v.
Carter, 375 F.3d 430, 445 (6th Cir. 2004). As stated in the Original Report, Petitioner has
established the first prong of a Brady violation, that the omitted records could have been used for
impeachment purposes. However the remaining prongs have not been established: that the
evidence was material to the outcome of his trial, and that there was prejudice resulting from the
omission of this evidence. Given the evidence presented at trial, the juvenile records showing
neuropscychological defects were not material, nor is there a reasonable probability that had they
been disclosed, the result of the proceeding would have been different. The decision of the state
court of appeals was therefore neither contrary too, nor an unreasonable application of Brady.
The Magistrate Judge again concludes the First Ground for Relief should be denied on
the merits but deserves the encouragement to proceed further which would be implicit in
granting a certificate of appealability.

Second Ground for Relief: Prosecutorial Misconduct

In his Second Ground for Relief, Chinn asserts he was deprived of a fair trial, in both the
guilt and penalty phases, by pervasive prosecutorial misconduct (Petition, Doc. No. 3, PageID
669-673; Traverse, Doc. No. 27, PageID 302). This claim was decided on the merits in the state
courts, and the Original Report concluded that the state courts’ decision was neither contrary to
nor an objectively unreasonable application of United States Supreme Court precedent (Original
Report, Doc. No. 60, PageID 814). The Original Report recommended that the claim for relief
be denied on the merits and that a certificate of appealability also be denied. Id.

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Asserted Guilt Phase Misconduct

In his Objections, Chinn again challenges the prosecutor’s conduct by arguing that he
vouched for credibility of witness Marvin Washington; he vouched for the police by misstating
evidence; he urged the jurors to consider that Avictims have rights too@; and he challenged
Petitioner’s alibi evidence by making references to a witness who did not testify. (Objections,
Doc. No. 63, PageID 953.) Chinn specifically argues that the State was offering opinions as to
the credibility of the witnesses and the strength of their case, taking exception to the trial judge’s
finding that the prosecutor only Aasked the jury to assess the credibility of these witnesses.@ Id.
The only addition Chinn makes in the Objections to the arguments made in the Petition
and Traverse is that he disagrees with the Court’s findings that the prosecutor was asking the
jurors to assess the credibility of witnesses, as the evidence shows that the State was actually
offering an opinion as to the credibility and strength of the witnesses. Id. He relies on Caldwell
v. Russell, 181 F.3d 731, 737 (6th Cir. 1999), abrogated on other grounds by Mackey v. Dutton,
217 F.3d 399, 406 (6th Cir. 2000), for the proposition that a prosecutor may not express personal
opinions as to these matters. Id., citing Caldwell. He argues that the prosecutor’s comments here,
as in Caldwell, go beyond merely arguing the case and imply that the prosecutor knows
something that is not being presented, thus jeopardizing the defendant’s right to be tried solely
on the evidence presented before the court. (Objections, Doc. No. 63, PageID 954.) However,
the Caldwell court continued in its analysis and held that, A[b]y contrast, a state’s attorney is free
to argue that the jury should arrive at a particular conclusion based upon the record evidence,
including the conclusion that the evidence proves the defendant’s guilt.@ Caldwell v. Russell, 181

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F.3d 731, 737 (6th Cir. 1999).
As the state courts recognized, prosecutorial misconduct will warrant habeas relief only if
the relevant misstatements were so egregious as to render the entire trial unfair to a degree
tantamount to a deprivation of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 643-45
(1974). See State v. Chinn, 85 Ohio St. 3d 548 (1999), holding “[t]he instances of alleged
misconduct, taken singly or together, did not substantially prejudice appellant or deny him a fair
trial and a fair and reliable sentencing determination.” Id. at 559.
Chinn next argues that the Court failed to consider the cumulative impact of the
prosecutorial misconduct at the culpability phase of trial (Objections, Doc. No. 63, PageID 955,
citing United States v. Trujillo, 376 F.3d 593 (6th Cir. 2004), holding that Aerrors that might not
be so prejudicial as to amount to a deprivation of due process when considered alone . . . may
cumulatively produce a trial setting that is fundamentally unfair.@ Id. at 614, quoting United
States v. Hernandez, 227 F.3d 686, 697 (6th Cir. 2000) and Walker v. Engle, 703 F.2d 959, 963
(6th Cir. 1983).
The Original Report rejected each of the guilt-phase prosecutorial misconduct claims on
the merits, holding
1.

There was no misconduct on the claim the prosecutor was vouChinng for the credibility

of witnesses (Original Report, Doc. No. 60, PageID 799 – 800).
2.

There was no prejudice from the brief reference in closing argument to testimony which

had not been given (Original Report, Doc. No. 60, PageID 801).
3.

There was no prosecutorial misconduct violating the United States Constitution in

reference to the absent alibi witness, Darryl Chinn (Original Report, Doc. No. 60, PageID 802803).

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4.

The prosecutor’s comment that it was the defense which asked for an involuntary

manslaughter instruction, while improper, was not prejudicial (Original Report, Doc. No. 60,
PageID 804).
5.

The prosecutor’s comment that “victims have rights to” was not misconduct (Original

Report, Doc. No. 60, PageID 804-805).
6.

There was no prosecutorial misconduct in calling Shirley Cox as a witness (Original

Report, Doc. No. 60, PageID 805).
Trujillo, relied on by Chinn in his Objections, is not an application of Donnelly or other
Supreme Court precedent on evaluating the cumulative effect of prosecutorial misconduct.
Rather, it states the test for reviewing cumulative error made by a trial judge in a criminal case
tried in federal court.
The Original Report did not expressly state the Magistrate Judge’s conclusion, stated
now, that the two instances of prosecutorial misconduct in the guilt phase did not render the trial
fundamentally unfair. The state courts’ conclusion to that effect is neither contrary to nor an
objectively unreasonable application of Donnelly.

Asserted Penalty Phase Misconduct
The Original Report also rejected Chinn’s claims of prosecutorial misconduct in the
penalty phase of the trial (Doc. No. 60, PageID 805-814).
Chinn objected to the prosecutor’s comment on the absence of proof by Chinn of one of
the statutory mitigating factors, to wit, that he was underprivileged.

The Original Report

concluded there was no constitutional violation in the comment. Id. at PageID 810-811.
Chinn objects that somehow the comment precludes the jury from considering “any

12

relevant mitigating factor,” (Objections, Doc. No. 63, PageID 956, citing Eddings v. Oklahoma,
455 U.S. 104, 114 (1982). The prosecutor’s comment here was that there was evidence which
showed the absence of a mitigating factor, that is, showing that Chinn was not underprivileged.
There is no law known to this Court which permits a jury to speculate on the possibility of a
mitigating factor when evidence has been produced that that factor is not present in a case.
Eddings and its progeny make clear that mitigating evidence must be admitted, but the absence
of evidence of a statutorily prescribed mitigating factor focuses the jury’s attention on the
evidence, not on speculation.
The Original Report also concluded that, if there was any error here, it was cured by
appellate reweighing (Original Report, Doc. No. 60, PageID 811, citing Clemons v. Mississippi,
494 U.S. 738 (1990). Chinn objects (Objections, Doc. No. 63, PageID 956). He concedes that
Lundgren v. Mitchell, 440 F.3d 754 (6th Cir. 2006) is to the contrary, but argues that Lundgren
“is an incorrect statement of law and Chinn reserves the right to challenge it on appeal.” Id. Any
right to challenge the Lundgren on appeal depends on Chinn’s receiving a certificate of
appealability on this issue. In the Original Report, the Magistrate Judge recommended denying a
certificate on this claim and Chinn makes no new argument in his Objections (see particularly
PageID 958-959).
The Magistrate Judge again respectfully recommends that the Second Ground for Relief
be denied and that Chinn be denied a certificate of appealability on these claims.

Third Ground for Relief: Admission of Testimony of Shirley Cox

In his Third Ground for Relief, Chinn asserts he was denied a fair trial by admission of

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the testimony of Shirley Cox. Ms. Cox worked in the downtown Dayton law office of her
husband, Bobby Joe Cox. On the morning of February 23, 1989, Chinn came into that office,
identified himself as “Tony Chinn,” and spoke to her for about fifteen minutes. That evening she
saw in the newspaper a police composite sketch of the perpetrator of the Jones shooting and
identified him to the Dayton Police as the person she had met that morning. The entirety of Ms.
Cox’s brief testimony is reproduced in the Original Report at PageID 817-823.
Chinn claims this testimony illogically bolstered the identity evidence and allowed the
jury to infer that he was seeking legal advice. Both the Second District Court of Appeals and the
Ohio Supreme Court found that the portion of Ms. Cox’s testimony about where she met Chinn
should have been excluded, but the Ohio Supreme Court concluded its admission was harmless
beyond a reasonable doubt. State v. Chinn, 85 Ohio St. 3d 548, 560-561 (1999). The Original
Report found this conclusion was neither contrary to nor an objectively unreasonable application
of clearly established Supreme Court precedent. (Doc. No. 60, PageID 827.)
Chinn objects that this Court is required to review the admission of this evidence de novo
under the standard of Brecht v. Abrahamson, 507 U.S. 619 (1993)(Objections, Doc. No. 63,
PageID 964, citing Ruelas v. Wolfenbarger, 580 F.3d 403 (6th Cir. 2009).) The Original Report
noted that the Ohio Supreme Court had found the admission of this testimony was harmless
beyond a reasonable doubt (Doc. No. 60, PageID 827).

Although that court did not cite

Chapman v. California, 386 U.S. 18 (1967). it was obviously applying the Chapman test:
harmlessness beyond a reasonable doubt. The Original Report concluded “[b]ecause the Ohio
Supreme Court’s finding of harmless beyond a reasonable doubt would have satisfied the
Chapman standard, a fortiori it satisfies Brecht.” (Doc. No. 60, PageID 827.)
That conclusion is completely consistent with Ruelas. In that case, Judge Martin wrote:

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[I]n Fry [v. Pliler, 551 U.S. 112 (2007)] the Justices also told us
that Brecht's "substantially injurious" test "obviously subsumes"
the question whether Chapman was reasonably applied: How could
the determination that something was harmless beyond a
reasonable doubt be unreasonable if it did not also have a
"substantially injurious" effect on the jury? Moreover, because "it
certainly makes no sense to require formal application of both tests
(AEDPA/Chapman and Brecht)," Fry, 551 U.S. at 120, Fry, as a
practical matter, "subsumes" Esparza. [Mitchell v. Esparza, 540
U.S. 12, 17-18 (2003)]. But again: Esparza was not overruled.
Per that case, a habeas court remains free to, before turning to
Brecht, inquire whether the state court's Chapman analysis was
reasonable. If it was reasonable, the case is over. But in Fry the
Justices also emphatically stated (there was no dissent regarding
this point), that a habeas court may go straight to Brecht with full
confidence that the AEDPA's stringent standards will also be
satisfied.
Ruelas, 580 F.3d at 412-413.
The next sentence of the Original Report reads “[a]nd this Court cannot say that it [the
Ohio Supreme Court’s decision] is contrary to or an unreasonable application of Brecht.” (Doc.
No. 60 at 827.) It should have read and is hereby amended to read that the Ohio Supreme
Court’s decision was neither contrary to nor an objectively unreasonable application of
Chapman. The Ohio Supreme Court’s reasoning in this regard is persuasive. Ms. Cox was not
permitted to testify what it was that Chinn wanted to consult her husband about. An error is
harmless if it played such an inconsequential role in the actual trial in which it occurred that it
assuredly had no impact on the trial's verdict. Wilson v. Mitchell, 498 F.3d 491 (6th Cir. 2007),
citing 2 R. Hertz & J. Liebman, FEDERAL HABEAS CORPUS PRACTICE & PROCEDURE § 31.4d (5th
ed. 2005). She had to give context to her meeting with Chinn and all are agreed that, if she had
merely said it was at her husband’s business, there would have been no difficulty. Although Mr.
Cox is known to this Court as having a practice concentrated in criminal defense, that was not
disclosed to the jury. There is nothing per se incriminating about consulting an attorney and the

15

visit to Mr. Cox’s office was nearly a month after the crime in suit was committed.
Chinn’s Objections as to the Third Ground for Relief are not persuasive and the
Magistrate Judge again recommends it be denied on the merits. Because the Ohio courts found
constitutional error here, albeit harmless error, the Original Report recommended that a
certificate of appealability issue on this Ground for Relief and Respondent has not objected.

Fourth Ground for Relief: Restriction of Cross-Examination of Christopher Ward

In his Fourth Ground for Relief, Chinn asserts his Confrontation Clause rights were
violated when he was prevented from cross-examining Christopher Ward about a statement he
allegedly made to Major McKeever of the Jefferson Township Police regarding how much
attention he had paid to Chinn when he saw him on the night of the murder. Chinn’s counsel
wanted to ask the following questions: Did Ward make an oral statement to Major McKeever on
February 5, 1989? If so, did he say that he did not pay “any attention to the other man in the car
whose name was Tony?” Trial counsel’s basis for the question was Major McKeever’s police
report, not a statement signed by Ward at the time of his interview which apparently also exists.
The court of appeals found error in the refusal to permit this cross-examination, but that
the error was not prejudicial. State v. Chinn, 1991 Ohio App. LEXIS 6497 (Ohio App. 2nd Dist.
1991). The Ohio Supreme Court on further direct appeal1 concluded that “the error, if any, . . .
did not unfairly prejudice appellant.” State v. Chinn, 85 Ohio St. 3d 548, 571 (1999). The court
expressly applied the Chapman test, concluding “The error, if any, was harmless beyond a
reasonable doubt.” Id. at 573.

1

Because the crime in suit occurred before January 1, 1995, Chinnn was entitled to direct appellate review at both
the intermediate court of appeals and in the Ohio Supreme Court.
16

The Original Report recommended dismissal of this Ground for Relief with prejudice
because “Petitioner has not shown prejudice arising from the inability to cross-examine this
witness on this statement.” (Doc. No. 60, PageID 834.)
In his Objections, Chinn argues that his Confrontation Clause right “encompasses the
right to impeach adverse witnesses with their own prior statements,” (Doc. No. 63, PageID 968,
citing Lewis v. Wilkinson, 307 F.3d 413, 419 (6th Cir. 2002)). At issue in that case was an entry
in the diary of the complaining witness in a rape case which went directly to the issue of consent
and motive for pressing charges. The statement was unquestionably that of the victim. The trial
court had excluded the diary entry from use on cross-examination under the Ohio rape shield
law, Ohio Revised Code § 2907.02(D). In Lewis, the Sixth Circuit relied on its prior decision in
Boggs v. Collins, 226 F.3d 728 (6th Cir. 2000). In Boggs the court recognized as a general matter
that a trial court has discretion “to impose limits [on cross-examination] based on concerns about
harassment, prejudice, confusion of the issues, witness safety, or interrogation that is only
marginally relevant.” 228 F.3d at 736, citing Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986).
In this case the trial judge refused to permit defense counsel to question Ward about a
purported prior statement of his because it was reported in a police report, i.e., it was a purported
prior oral statement which the witness had not adopted. The trial judge’s ruling, quoted in the
Ohio Supreme Court opinion, was “The Court: Police reports are inherently inaccurate and that
is the very reason why under criminal rule 16 they are not to be made available and not to be
used on cross-examination of any witnesses. On that basis, the Court sustains the objection,”
quoted at 85 Ohio St. 3d 548, 571. The court of appeals found the ruling was error because
“[t]he question propounded by Appellant did not concern a police report, but a prior statement of

17

the witness to a police officer. Any constraints on the use or introduction of a police report in
which the same matter might appear were not in issue.” State v. Chinn, 1991 Ohio App. LEXIS
6497 *86 (Ohio Ct. App., Montgomery County Dec. 27, 1991). The Ohio Supreme Court
declined to decide if it was error and held there was “no prejudicial impact whatsoever.” Chinn,
85 S. Ct. at 573. Both courts were presented with Confrontation Clause claims and decided them
without citing to any United States Supreme Court precedent.
On the underlying question of whether it is a violation of the Confrontation Clause to
prevent cross-examination about a purportedly inconsistent prior statement, the Objections rely
on Giles v. Maryland, 386 U.S. 66 (1967)(Objections, Doc. No. 63, PageID 968). There was no
majority opinion in Giles. The petitioners had claimed state suppression of favorable evidence
and knowing use of perjured testimony. Without deciding those constitutional questions, the
Court remanded the cases for the Maryland courts to consider two police reports made part of the
record at the Supreme Court level. Plainly, Giles does not include a holding of the Supreme
Court that the Confrontation Clause is violated whenever questioning about a purported prior
inconsistent statement is prevented. And a state court decision on a constitutional issue can be
reversed in habeas corpus only if it is contrary to or an objectively unreasonable application of
the holding of a Supreme Court decision. The fact that the Ohio court did not explain this
portion of its decision does not preclude AEDPA deference. Harrington v. Richter, 562 U.S.
___, 131 S.Ct. 770, 785 (2011).
The other constitutional decision made by the Ohio Supreme Court on this Ground for
Relief is that any error in preventing the questioning was harmless beyond a reasonable doubt.
As with the Third Ground for Relief, the state court was clearly applying the Chapman test,
although it again did not cite Chapman.

18

The Ohio Supreme Court’s application of Chapman was not objectively unreasonable.
First of all, it is unclear from the record that Ward actually made the statement about which
defense counsel wished to ask him2. When the author of the report, Major McKeever, was
himself questioned about the report, he indicated that the purported statement by Ward was
really more his own observation than Ward’s statement. That admission by McKeever is lent
credibility by the fact that its content was contrary to the State’s interest, i.e., it diminished the
credibility of Ward’s identification of Chinn.
Secondly, as the Ohio Supreme Court also noted, there were a number of other
identifications of Chinn by Ward. Chinn, 85 Ohio St. 3d at 573. Finally, as the Ohio Supreme
Court also found, “the alleged inconsistent statement, even if Ward had made it, was not
inconsistent with any of Ward’s trial testimony.” Id. Chinn argues in his Objections both that
this was Ward’s prior statement (there is no evidence to that effect) and that it has a “glaring
inconsistency” with his trial testimony (Objections, Doc. No. 63, PageID 969). The record does
not support either of those conclusions.
The Ohio Supreme Court’s decision on the question presented in the Fourth Ground for
Relief is neither contrary to nor an objectively unreasonable application of clearly established
Supreme Court precedent. The Magistrate Judge again respectfully recommends it be denied on
the merit and Petitioner be denied a certificate of appealability.

Fifth Ground for Relief: Admission of Hearsay

In his Fifth Ground for Relief, Chinn argues the trial court violated his constitutional
rights when, on three occasions, it allowed hearsay testimony into evidence. Sub-claim C was
2

This observation in no way implies that there was not a good faith basis for the question.
19

dismissed by Judge Sargus as procedurally defaulted.
Sub-claim A asserts error in allowing Detective Lantz to testify that Shirley Cox picked
Chinn from a line-up. The Ohio Supreme Court rejected this claim on the merits and the
Original Report concluded this was not an objectively unreasonable application of Supreme
Court precedent (Doc. No. 60, PageID 842).
Ms. Cox testified but was not asked about her line-up identification of Chinn on direct.
She could have been asked about it on cross,3 but it would not have made good sense for the
defense to introduce that identification to the jury. After she testified, the State called Detective
David Lantz who was permitted to testify, over objection, to Ms. Cox’s identification. The Ohio
Supreme Court held Lantz’s testimony about Ms. Cox’s identification is excluded from the Ohio
Rules of Evidence definition of hearsay as a statement of “identification of a person soon after
perceiving the person, if the circumstances demonstrate the reliability of the prior identification
and the declarant testifies at trial and is subject to cross-examination.”

Ohio R. Evid.

801(D)(1)(c).
The Objections do not quarrel with the finding in the Original Report that Ms. Cox did
not become unavailable when she was excused, because she worked less than two blocks from
the courthouse; she could have been recalled by the defense if there was any reason to believe
she would recant her identification.
Instead, the Objections assert that admission of this testimony does not come within the
then-governing rule of Ohio v. Roberts, 448 U.S. 56 (1980), which required as a matter of
Confrontation Clause law that, as to an unavailable declarant, hearsay could be admitted if it (1)
bears particularized guarantees of trustworthiness or (2) falls within a firmly-rooted hearsay

3

The permissible scope of cross-examination under Ohio law is “all relevant matters and matters affecting
credibility.” Ohio R. Evid. 611(B).
20

exception (Objections, Doc. No. 63, PageID 973, citing Miller v. Stovall, 608 F.3d 913 (6th Cir.
2010)). To show that “an out-of-court identification at a police lineup does not fall within either
one of these exceptions,” the Objections rely on Mitchell v. Hoke, 930 F.2d 1 (2nd Cir. 1991).
However, Mitchell v. Hoke says nothing about the exclusion of an out-of-court identification
from the definition of hearsay. It holds that a lineup identification does not come within the
residual hearsay exception codified in Fed. R. Evid. 803(24), even assuming that exception is
“firmly rooted.” 930 F.2d at *2-3. It was admitted that the declarant was available, but had
recanted his identification, which undercut any notion it was highly probative as required by Fed.
R. Evid. 803(24). Id. The case nowhere holds that out-of-court lineup identifications are
inherently unreliable.
Even if Mitchell were in point, which it is not, it is also not a decision of the United
States Supreme Court. A lower court may not use circuit precedent “to refine or sharpen a
general rule of Supreme Court jurisprudence into a specific rule that” the Supreme Court has not
announced. Marshall v. Rodgers, 569 U.S. ___ 133 S. Ct. 1446; 185 L. Ed. 2d 540 (2013)(per
curiam).
In sum, Ms. Cox was available for cross-examination. Had she been prepared to discredit
Detective Lantz’s testimony in any way, she could have been recalled to the stand. In any event,
Lantz’s testimony fits squarely within the definition of non-hearsay in Ohio R. Evid. 8014 and
no United States Supreme Court precedent holds that the admission of such a state violates the
Confrontation Clause. The Magistrate Judge again respectfully recommends that Sub-claim A
be denied on merits but that a certificate of appealability be issued.
Sub-claim B asserts error in allowing Detective Lantz to present hearsay testimony of a
statement by witness Marvin Washington that he could make an identification from the lineup
4

The Ohio Rule is not esoteric. See Fed. R. Evid. 801(d)((1)(C).
21

but had not done so because he was frightened that Chinn could see him. Sub-claim B is without
merit for the same reasons as Sub-claim A. In addition, Washington testified to the same facts at
trial and was subject to cross-examination about them, so there is no “unavailability” issue.
Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a
certificate of appealability on this sub-claim.

Sixth Ground for Relief: Ineffective Assistance of Trial Counsel: Expert Witnesses

In his Sixth Ground for Relief, Chinn claims his trial counsel provided ineffective
assistance by not calling an expert witness on the potential fallacies of eyewitness identification
and on the likely effects of mental retardation on testimony. These claims were presented first to
the state courts in post-conviction where the trial court decided them after an evidentiary hearing
at which two experts and trial counsel testified. The trial court’s denial of relief was affirmed by
the court of appeals after a thorough discussion of the evidence. State v. Chinn, 2001 Ohio App.
LEXIS 3127 (2nd Dist. 2001)(quoted at length in the Original Report, Doc. No. 60, PageID 843854). Since the Ohio Supreme Court declined jurisdiction over a requested appeal, the court of
appeals’ decision is the last reasoned state court judgment on this claim.
In the Original Report, the Magistrate Judge concluded that the court of appeals’ decision
was neither contrary to nor and objectively unreasonable application of Strickland v.
Washington, 466 U.S. 668 (1984).
As regards presentation of an expert on the potential fallacies of eyewitness
identification, Chinn relies in his Objections on Ferensic v. Birkett, 501 F.3d 469 (6th Cir. 2007).

22

Ferensic is not an ineffective assistance of trial counsel case, but rather one where a proffered
expert on eyewitness identification was excluded because the expert’s report was produced in an
untimely manner. In that case, the Sixth Circuit emphasized the utility of eyewitness expert
testimony in dispelling common misunderstandings about the reliability of eyewitness
identification testimony and noted that the jury in that case seemed hesitant about identification.
501 F.3d at 482. However, nothing in the Ferensic decision suggests it is ineffective assistance
of trial counsel to fail to present such an expert. Nor is there anything in the appellate court
decision here which suggests a categorical rejection of such experts. Instead, the court compared
the testimony on this subject in post-conviction of Dr. Solomon Fulero5 with the actual
eyewitness identifications in this case. Chinn notes two points on which an expert might have
dispelled common misperceptions. He says most people do not realize that a witness’ memory
can be changed after the event or that a witness’s certainty is not a guaranty of accuracy
(Objections, Doc. No. 63, PageID 979).
In rejecting this portion of the ineffective assistance of trial counsel claim, the court of
appeals wrote:
The factors about which Fulero testified were not particularly
relevant to the testimonies of Cox and Ward. Cox testified that
Chinn was in her presence for ten to fifteen minutes. Thus, she
apparently had sufficient time to view his face. Ward testified that
he had been in Chinn's presence for thirty to forty-five minutes.
Thus, he had sufficient time to view his face. Neither Cox nor
Ward testified about the presence of any salient detail and neither
reported that they had been in fear while in Chinn's presence.
Although Cox's race is unknown from the record, both Ward and
Washington were black. There was no evidence that Cox or Ward
were mentally retarded. There was no evidence that Cox was
alcohol-impaired at the time she witnessed "Tony." Ward testified
that he had not been drinking or smoking marijuana on the night he
5

Dr. Fulero, resident in the Dayton area until his untimely death April 29, 2011, was a nationally-recognized expert
on the potential fallacies of eyewitness testimony and frequently appeared as an expert witness and continuing legal
education lecturer on that subject.
23

had met Chinn. Further, there was no evidence presented that
would support the conclusion that either Cox or Ward had received
post-event information which would have changed their
identifications of Chinn. Thus, pursuant to the record, none of the
factors discussed by Fulero were relevant to the testimonies of Cox
or Ward.
The main witness against Chinn was Washington. On the night of
the crime, Washington was with "Tony" from approximately 7:00
p.m. to midnight, a significant length of time. Further, Washington
knew "Tony" before the night of the crime because he had
previously met and "partied" with him. In fact, the two were
together awhile before they decided to rob someone and ultimately
spent the entire evening together. Washington knew that Chinn
was carrying a gun before the crime was committed, but it
apparently was not visible to him during most of the evening.
Washington did not report being in fear at any time during the
night. Although he might have experienced fear or stress during
the actual crime, he was not the victim of the crime.
Both Washington and Chinn were black. Washington testified that
when he had met Chinn on the evening of the crime, Chinn had
been drinking alcohol. Washington, who had not had any alcohol
before meeting Chinn, then began drinking with Chinn and the two
eventually purchased more beer and consumed it before
committing the crime. Washington testified that he had felt
intoxicated by the time he had arrived at the scene where the crime
had been committed. Although Washington might have been
alcohol-impaired at the time of the crime, he had not had alcohol at
the time he originally saw and recognized Chinn.
There is no evidence that Washington acquired post-event
information about the crime that altered his memory. In fact,
Detective Lantz testified that at the time Washington gave his first
account of the events of that evening, Lantz had not given him any
information about the crime. Lantz also said that until Washington
had implicated "Tony," investigators had never suspected anyone
linked to that name. Further, Lantz testified that Washington's
testimony at Chinn's trial had been consistent with his original
story. Thus, none of the factors discussed above would have been
particularly relevant to Washington's testimony.
State v. Chinn, 2001 Ohio 1550, 2001 Ohio App. LEXIS 3127 *21-24 (2nd Dist. 2001). The court
of appeals applied the correct standard under Strickland v. Washington, 466 U.S. 668 (1984), and
24

Chinn has not demonstrated its application to the proposed expert eyewitness identification
testimony is contrary to or an unreasonable application of Strickland. Indeed, Chinn has pointed
to no case finding ineffective assistance of trial counsel for failure to present a witness such as
Dr. Fulero.
Chinn also claims it was ineffective assistance of trial counsel to fail to present an expert
on the effects of mental retardation on a witness’s testimony. The Original Report also rejected
this claim on the basis of the court of appeals’ opinion on appeal from denial of post-conviction
relief (Original Report, Doc. No. 60, PageID 859-860). In dealing with this sub-claim, the court
of appeals wrote:
The only factor that might have been relevant was the effect of
mental retardation on Washington's ability to perceive and
remember information.
At the post-conviction relief hearing, Everington testified that
Washington had suffered from moderate range mental retardation,
had had a limited ability to comprehend, had been easily swayed
by others, had been eager to please authority figures, could have
been easily distracted, had had significant weakness in long-term
recall, and had distorted and confused new information. Fulero
testified that mentally retarded people show a decreased accuracy
rate in making later identifications and are also more suggestible
and often have desires to please authority and to hide their mental
retardation.
On the other hand, Monta, an experienced criminal attorney,
testified that, after meeting Washington, he had thought
Washington probably would have passed psychological "muster."
He also stated that the case was probably not centered solely on
Washington's identification of Chinn because other witnesses who
testified had implicated Chinn in the commission of the crime.
Although DeVoss testified positively about Washington's
characteristics and abilities, we note that she met Washington in
April 1989 and thought he was a "blooming idiot" at that time.
During her contact with him between April 1989 and 1992, she
decided otherwise, but Chinn's trial was in August 1989, so
DeVoss most likely would not have been available to testify
positively about Washington's characteristics at the time of Chinn's
25

trial.
Lantz testified that Washington had understood questions and had
appropriately answered them. He said that in his interactions with
Washington, nothing had led him to think that Washington had
been mentally retarded or had been unable to give a truthful
account of the events in question. Dr. Martin testified that little can
be known by looking solely at a person's IQ scores and that IQ
scores do not give information about a person's level of adaptive
functioning.
Considering all of this evidence, we cannot conclude that there is a
reasonable probability that the result of the trial would have been
different had Chinn's counsel called experts to testify about
eyewitness identification and Washington's mental retardation. The
only eyewitness identification factor that was relevant in the case
was Washington's alleged mental retardation and the effects of that
retardation were disputed. Although Everington could have
testified as to her beliefs about Washington, such testimony was
contradicted by the testimonies of Monta, Lantz, and Martin.
Further, we have carefully reviewed Washington's testimony at
Chinn's trial. His testimony is remarkably coherent and consistent.
We do not agree with Everington's testimony that, during Chinn's
trial, Washington had been unable to recall important facts from
the night of the crime, had not understood questions, and had given
inconsistent and inappropriate answers. Although Washington was
unable to give times for many of the events during the evening, he
testified that he had not been wearing a watch. While Washington
was unable to remember some facts about the evening of the crime,
such as with which hand Chinn had held the gun, Washington did
remember other very specific facts, such as what he had worn on
the night of the crime, the general type of clothing that Chinn had
worn, that Jones' car had had a digital clock, and that Chinn had
been drinking a sixteen ounce "big mouth Micky" when he had
first seen him. Further, although Washington admitted during his
testimony that he could not read or write in cursive, we do not
believe that such abilities were required for Washington to
accurately identify Chinn.
Washington picked Chinn from a photo spread, after not picking
suspects from earlier photo spreads that had not contained Chinn's
photograph. Thus, although mentally retarded people might be
eager to please authorities, assuming Washington was mentally
retarded, he must not have been eager enough to please authorities
to immediately pick a suspect from the first photo spread or to
26

immediately identify Chinn during the police lineup. Finally,
although mentally retarded people might generally have a
decreased accuracy rate in making later identifications, such
decreased accuracy rate does not mean Washington's identification
of Chinn was wrong. In fact, Washington's familiarity with Chinn
prior to the night of the crime likely increased his accuracy rate in
identifying him. As Martin testified, a person's level of adaptive
functioning is not apparent from his IQ scores. The witnesses who
came in contact with Washington prior to Chinn's trial thought
that, while Washington might not have been especially bright, he
would have passed "muster" and that his story was consistent and
plausible.
Considering all of the evidence on the record, we cannot conclude
that there is a reasonable probability that had Chinn's counsel
called experts on eyewitness identification and mental retardation,
the result of the trial would have been different. Thus, we will not
conclude that the trial court erred in concluding that Chinn's
counsel was not ineffective for failing to call experts on eyewitness
identification and mental retardation.

State v. Chinn, supra, at *24-28. Here again Chinn has failed to demonstrate that this decision is
an unreasonable application of Strickland.
The Magistrate Judge again respectfully recommends this Ground for Relief be denied
and a certificate of appealability be denied.

Seventh Ground for Relief: Failure to Define “Principal Offender”

In his Seventh Ground for Relief, Chinn claims he was denied due process when the trial
judge failed to give the jury a definition of “principal offender.” The Original Report noted this
claim had been dismissed as procedurally defaulted and that ruling remained the law of the case.
Chinn has made no objection to that conclusion.

27

Eighth Ground for Relief: Failure to Provide Brady Material and Follow the Local “Case
Management” Plan

Equal Protection Sub-claim

The first part of Chinn’s Eighth Ground for Relief is that he was denied equal protection
of the laws when the trial court refused to enforce the local rule of the Montgomery County
Common Pleas Court providing for “open file” discovery in criminal cases. On direct appeal the
Ohio Supreme Court put to one side the question of the value of “open file” discovery and
concluded Chinn actually had much of the material he would have obtained from the
prosecutor’s file and had failed “utterly” to show any prejudice from failure to receive the
balance of the information. State v. Chinn, 85 Ohio St. 3d 548, 569 (1999).
The Original Report found this claim not to be cognizable in habeas corpus because it
sought enforcement of a local rule which was not constitutionally compelled (Doc. No. 60,
PageID 862). In his Objections, Chinn emphasizes that this is a constitutional claim under the
Equal Protection Clause, to wit, that treating Chinn differently from other criminal defendants in
the Montgomery County Common Pleas Court was constitutionally invidious discrimination
(Objections, Doc. No. 63, PageID 986-988). Although this claim is cognizable in habeas corpus,
it is without merit.
Chinn argues that “[w]hen state action interferes with a fundamental right, the Court
should evaluate the equal protection challenge to that action under a strict scrutiny standard of
review.” (Objections, Doc. No. 63, citing San Antonio School District v. Rodriquez, 411 U.S. 1
(1973).) As a general proposition of law, that is certainly correct. See, e.g., Plyler v. Doe, 457

28

U.S. 202, 216-17 (1982). The question then is whether the particular decision complained of
interfered with a “fundamental right.” Chinn identifies the right in question as the “right to a fair
trial.” (Objections, Doc. No. 63, PageID 986.) That is far too general a description. That way of
characterizing failure to enforce this particular local rule would elevate every local criminal rule
to the level of a “fundamental right.” Chinn cites no authority for the proposition that local
criminal discovery rules rise to the level of fundamental rights. It would be hard to reconcile
such a characterization with the well-established rule that there is no constitutional right to
discovery at all in a criminal case. Weatherford v. Bursey, 429 U.S. 545, 559 (1977); Lorraine v.
Coyle, 291 F.3d 416, 441 (6th Cir. 2002).
The Objections criticize the Report for “apparently” requiring Chinn to show that there
were similarly-situated person who were granted this discovery (Doc. No. 63). On the contrary,
it was Chinn who suggested the need for such proof by alleging that there were such similarlysituated person and then providing no examples. (See Original Report, Doc. No. 60, PageID
861, n. 6.)
Since there is no fundamental right to discovery in a criminal case, the trial judge’s action
in denying Chinn application of the “Case Management Plan” must be judged on rational basis
scrutiny. Vacco v. Quill, 521 U.S. 793, 799 (1997). The states cannot make distinctions which
either burden a fundamental right, target a suspect class, or intentionally treat one differently
from others similarly situated without any rational basis for the difference. Id.; Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); Radvansky v. City of Olmsted
Falls, 395 F.3d 291, 312 (6th Cir. 2005).
Rational-basis review in equal protection analysis "is not a license for courts to judge the
wisdom, fairness or logic of legislative choices." FCC v. Beach Communication, Inc., 508 U. S.

29

307 (1993). See also, e.g., Dandridge v. Williams, 397 U. S. 471, 486 (1970). Nor does it
authorize "the judiciary [to] sit as a super legislature to judge the wisdom or desirability of
legislative policy determinations made in areas that neither affect fundamental rights nor proceed
along suspect lines." New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam). For these
reasons, a classification neither involving fundamental rights nor proceeding along suspect lines
is accorded a strong presumption of validity. See, e.g., Beach Communications, supra, at 508
U.S. 307 (slip op., at 7); Kadrmas v. Dickinson Public Schools, 487 U. S. 450, 462 (1988); Hodel
v. Indiana, 452 U. S. 314, 331-332 (1981); Massachusetts Bd. of Retirement v. Murgia, 427 U. S.
307, 314 (1976) (per curiam). Such a classification cannot run afoul of the Equal Protection
Clause if there is a rational relationship between the disparity of treatment and some legitimate
governmental purpose. See, e.g., Nordlinger v. Hahn, 505 U. S. 1 (1992); Dukes, supra, at 303.
Further, a legislature that creates these categories need not "actually articulate at any time the
purpose or rationale supporting its classification." Nordlinger, supra, at 505 U.S. 1 (slip op., at
13). See also, e.g., United States R. Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980); Allied
Stores of Ohio, Inc. v. Bowers, 358 U. S. 522, 528 (1959). Instead, a classification "must be
upheld against equal protection challenge if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification." Beach Communications, supra. See also,
e.g., Nordlinger, supra; Sullivan v. Stroop, 496 U.S. 478, 485 (1990); Fritz, supra, at 174-179;
Vance v. Bradley, 440 U. S. 93,111 (1979); Dandridge v. Williams, supra, at 484-485.
A State, moreover, has no obligation to produce evidence to sustain the rationality of a
statutory classification. "[A] legislative choice is not subject to courtroom fact finding and may
be based on rational speculation unsupported by evidence or empirical data." Beach
Communications, supra,. See also, e.g., Vance v. Bradley, supra, at 111; Hughes v. Alexandria

30

Scrap Corp., 426 U. S. 794, 812 (1976); Locomotive Firemen v. Chicago R.I. & P.R. Co., 393
U. S. 129, 139 (1968). A statute is presumed constitutional, see supra, at 6, and "the burden is on
the one attacking the legislative arrangement to negative every conceivable basis which might
support it," Lehnhausen v. Lake Shore Auto Parts Co., 410 U. S. 356, 364 (1973), whether or not
the basis has a foundation in the record. Finally, courts are compelled under rational-basis review
to accept a legislature's generalizations even when there is an imperfect fit between means and
ends. A classification does not fail rational-basis review because it "'is not made with
mathematical nicety or because in practice, it results in some inequality."' Dandridge v. Williams,
supra, at 485, quoting Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78 (1911). "The
problems of government are practical ones and may justify, if they do not require, rough
accommodations-illogical, it may be, and unscientific." Metropolis Theatre Co. v. Chicago, 228
U.S. 61, 69-70 (1913). See also, e.g., Burlington Northern R. Co. v. Ford, 504 U. S. 648 (1992);
Vance v. Bradley, supra, at 108, and n. 26; New Orleans v. Dukes, supra, at 303; Schweiker v.
Wilson, 450 U. S. 221, 234 (1981). We have applied rational-basis review in previous cases
involving the mentally retarded and the mentally ill. See Cleburne v. Cleburne Living Center,
Inc., 473 U. S. 432 (1985); Schweiker v. Wilson, supra. In neither case did we purport to apply a
different standard of rational-basis review from that just described. True, even the standard of
rationality as we so often have defined it must find some footing in the realities of the subject
addressed by the legislation. In an equal protection rational basis review, the burden is on the
one attacking the governmental arrangement to negative every conceivable basis which might
support it, whether or not the basis has a foundation in the record. Heller v. Doe, 509 U.S. 312
(1993).
Here the trial judge, a part of the court which adopted the Case Management Plan,

31

articulated its purpose – to promote settlement of criminal cases. Noting that this case was
headed for trial in any event, he found that applying the Case Management Plan would not
further the state purpose for which it was adopted. That is surely a rational basis for declining to
apply the local rule. Chinn has therefore not demonstrated an Equal Protection violation as to
this part of his Eighth Ground for Relief.6

Brady v. Maryland sub-claim

Chinn’s claim under Brady v. Maryland, 373 U.S. 83 (1963), in his Eighth Ground for
Relief is that the delayed disclosure of Gary Welborn’s statement that he saw a third person
(other than Washington) with Chinn prior to the crime, i.e., in the vicinity of Ludlow and Court
Streets in Dayton.
The Original Report noted defense counsel had been able to cross-examine Welborn
about this third person and quoted the court of appeals’ decision that there was no Brady
violation (Doc. No. 60, PageID 864-66). Chinn objects “to the Magistrate Judge’s reliance on
‘[t]he Court of Appeals’ conclusion that there was no prejudice from the delay in disclosure of
this information’ because the state court of appeals never made that conclusion with regard to the
Welborn statement.” (Objections, Doc. No. 63, PageID 988.) However, the relevant language
from the court of appeals’ opinion quoted in the Original Report was “we see no reasonable
possibility that Chinn would have been acquitted if he had known this information.” (Doc. No.
63, PageID 866, quoting State v. Chinn, 1991 Ohio App. LEXIS 6497, *74 (2nd Dist.1991). That
is precisely the standard to be applied in deciding if there is prejudice from a failure to disclose:
6

The Magistrate Judge passes over without comment Chinnn’s claim that “Bush v. Gore, 531 U.S. 98, 104-105
(2000), is instructive.” (Objections, Doc. No. 63, PageID 987.) Bush v. Gore was decisive, but has never again
been cited by the Supreme Court, and drawing any “instruction” from it is extremely hazardous.
32

To establish prejudice, Belmontes must show "a reasonable
probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Strickland, 466
U.S., at 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674. That showing
requires Belmontes to establish "a reasonable probability that a
competent attorney, aware of [the available mitigating evidence],
would have introduced it at sentencing," and "that had the jury
been confronted with this . . . mitigating evidence, there is a
reasonable probability that it would have returned with a different
sentence." Wiggins v. Smith, 539 U.S. 510, 535, 536, 123 S. Ct.
2527, 156 L. Ed. 2d 471 (2003).

Wong v. Belmontes, 558 U.S. 15, 19-20 (2009).
The Original Report concluded that Chinn had not shown prejudice (Doc. No. 63, PageID
867). Chinn objects that, if the defense had had the description of the third person and his car
earlier, they might have been able to track him down and he might have impeached Washington.
But this is all speculative. With the descriptions, the third person had not been found nor had his
statement been taken by the time of the post-conviction process, which took many years, in part
because of a remand for an evidentiary hearing. The court of appeals’ conclusion that prejudice
had not been shown is not an unreasonable application of Brady and the Eighth Ground for
Relief should be dismissed on the merits.

Ninth Ground for Relief: Ineffective Assistance of Trial Counsel

In his Ninth Ground for Relief, Chinn asserts he was deprived of the effective assistance
of trial counsel in in nine different ways, making sub-claims 9(A) through 9(I).

Chinn’s

objections to the proposed dispositions of the sub-claims are dealt with seriatim.
Sub-claim A: Failure to Object to Instructions on Both “Principal Offender” and “Prior
Calculation and Design” Components of the Felony Murder Capital Specification
Ohio Revised Code § 2929.04 provides as a possible capital specification that the offense
33

of aggravated murder was committed in connection with certain designated felonies and “either
the offender was the principal offender in the commission of the aggravated murder or, if not the
principal offender, committed the aggravated murder with prior calculation and design.” Subclaim 9(A) asserts ineffective assistance of trial counsel for failure to object to the fact that the
trial judge instructed on both “principal offender” and “prior calculation and design”
components. The Original Report found there was no prejudice in the failure to object because
the Ohio Supreme Court considered the asserted trial court error on the merits and did not find it
defaulted for failure to object (Doc. No. 63, PageID 874).
The Ohio Supreme Court found no error in the disjunctive instruction on these two
elements actually given by the trial judge. State v. Chinn, 85 Ohio St. 3d 548, 558-59 (1999).
Chinn’s position is premised on the notion that if counsel had objected, the trial judge would
have chosen some other instruction which would have been more easily understandable to the
jury and on that instruction the jury would not have recommended a capital sentence (Objections,
Doc. No. 63, PageID 996). However, it cannot be deficient performance for a lawyer to fail to
object to a legally correct jury instruction even if an instruction more favorable to the defendant
can be imagined and would have also been lawful.

Sub-claim B: Failure to Object to the Failure of the Trial Court to Merge Kidnapping and
Aggravated Robbery Aggravating Circumstances

In Sub-claim 9(B), Chinn claims ineffective assistance of trial counsel from counsel’s
failure to object to the trial court’s failure to merge the kidnapping and aggravated robbery
aggravating circumstances. While finding error in the lack of merger, both the court of appeals
and the Ohio Supreme Court independently re-weighed the aggravating circumstances and

34

mitigating factors and merged these two components for that purpose. The Original Report
concluded that this reweighing was sufficient to cure the error (Doc. No. 60, PageID 875-76). In
his Objections, Chinn concedes that the Sixth Circuit has approved re-weighing as a cure for
ineffective assistance of trial counsel in Post v. Bradshaw, 621 F.3d 406 (6th Cir. 2010). Chinn
asserts “Post is an incorrect statement of law. . . .” Be that as it may, it is binding on this Court.
Furthermore, it is unclear that re-weighing as a cure for ineffective assistance of trial
counsel is what is involved here. Both the court of appeals and the Ohio Supreme Court engaged
in reweighing the aggravators and mitigators after merging these two components even though
the court of appeals found the claim procedurally defaulted. State v. Chinn, 1991 Ohio App.
LEXIS 6497, *37 (2nd Dist. 1991). If the Ohio courts did not enforce the default but proceeded
to consider the asserted error on the merits, Chinn suffered no prejudice from counsel’s failure to
object.

Sub-claim C: Failure to Object to Jury Instruction Which Could Have Led the Jury to
Treat a Firearm Specification as an Aggravating Circumstance

In Sub-claim 9(c), Chinn claims he received ineffective assistance of trial counsel when
his attorney did not object to a penalty phase instruction which, he claims, permitted the jury to
treatment a firearm specification which it had found as to one of the underlying felonies as if it
were an aggravating circumstance on the aggravated murder.
Chinn raised the underlying claim of trial court error in Proposition of Law No. 1 in the
Ohio Supreme Court. State v. Chinn, 85 Ohio St. 3d 548, 554 (1999). The Ohio Supreme Court
found there was no trial court error because
The firearm specifications were submitted to the jury only in the
guilt phase and were not even identified as “specifications” on the
35

verdict forms that were returned by the jury at the conclusion of
the guilt phase. The only specifications that were identified as
such on the verdict forms in the guilt phase of appellant’s trial
were the three death penalty specifications that had been submitted
to the jury in connection with Count One of the indictment, i.e., the
R.C. 2929.04(A)(3) specifications and the two R.C. 2929.04(A)(7)
specifications.

Id. at 557.
The Original Report concluded that if there was no trial court error, there could not have
been ineffective assistance of trial counsel from failure to object (Doc. No. 63, PageID 878).
Chinn objects that the “plain language of the supplemental instruction clearly invited the jury to
consider the noncapital firearm specifications as aggravating circumstances that could support a
death sentence.” (Objections, Doc. No. 63, PageID 998.) This, says Chinn, is because the jury
was told that the aggravating circumstances are those that you have found in the previous
specifications.

However, the only “specifications” which the jury had found were the

specifications that qualified Chinn for the death sentence. In other words, although the guilt
phase verdicts had firearms findings, they were not labeled “specifications.” Because there was
no trial court error, there is no prejudice from counsel’s failure to object.

Sub-claim D: Dismissed by Judge Sargus.

Sub-claim E: Failure to Object to Instruction on Nature and Circumstances.
The Original Report found this claim was barred by the decision in Cooey v. Coyle, 289
F.3d 882 (6th Cir. 2002). Chinn objects that, although that is the holding in Cooey, “Cooey is an
incorrect statement of the law.” (Objections, Doc. No. 63, PageID 999). “Correct” or not,
Cooey is binding on this Court.
36

Sub-claim F: Failure to Object to Victim Impact Testimony
In Sub-claim 9(F), Chinn asserts that the victim impact statement made by the victim’s
mother was improper and it was ineffective assistance of trial counsel not to object. The
Original Report found this sub-claim barred by Payne v. Tennessee, 501 U.S. 808 (1991)(Doc.
No. 60, PageID 878-79). Chinn objects that the testimony here went beyond Payne and the Sixth
Circuit’s allowance of cure by appellate re-weighing in Post v. Bradshaw, 621 F.3d 406 (6th Cir.
2010), is not a correct statement of the law. It is nonetheless governing precedent.

Sub-claim G: Failure to Request Limiting Instruction for Shirley Cox’s Testimony

In Sub-claim 9(G) Chinn argues his counsel were ineffective for failure to request a
limiting instruction regarding Shirley Cox’s testimony that she met Chinn when he came to her
husband’s law office. The Original Report noted that defense counsel had fought hard to keep
this fact away from the jury and that getting a limiting instruction would likely re-emphasize the
fact of their meeting place (Doc. No. 60, PageID 879).

Therefore the Magistrate Judge

concluded it was not deficient performance to fail to ask for the instruction. Id.
Chinn objects that the Sixth Circuit has held it is deficient performance to fail to request a
limiting instruction when the jury’s attention has already been focused on the evidence at issue
(Objections, Doc. No. 63, PageID 1001, citing Mackey v. Russell, 148 Fed. Appx. 355, 365-66
(6th Cir. 2005). Mackey, as an unpublished opinion, does not have precedential weight. Even if
Mackey stated the law on this point, that case was decided fifteen years after Chinn’s trial and
counsel cannot be expected to have anticipated its ruling. See Strickland, supra, at 689, on

37

avoiding hindsight in evaluating counsel’s performance. Finally, the Mackey court noted that
“[t]he vast majority of cases hearing ineffective assistance claims based on failure to request a
limiting instruction have determined that no prejudice resulted from counsel’s failures.” Id. at
367, citing Mitzel v. Tate, 267 F.3d 524, 538 (6th Cir. 2001).

The Objections are thus

unpersuasive on this sub-claim.

Sub-claim H: Failure to Object to Prejudicial Hearsay Testimony

In Sub-claim 9(H) Chinn claims he received ineffective assistance when trial counsel
failed to object to hearsay testimony, to wit, out-of-court statements of Marvin Washington
offered through Detective Lantz and Christopher Ward. The Original Report found this subclaim to be without merit because Washington testified to the same information in open court
(Doc. No. 60, PageID 880). Chinn objects for the reason given as to his Fifth Ground for Relief
(Doc. No. 63, PageID 1001) and the Magistrate Judge relies on the analysis given there.

Sub-claim I: Failure to Object to Prosecutorial Misconduct

In Sub-claim 9(I) Chinn alleges he received ineffective assistance when trial counsel
failed to object to “prosecutorial misconduct throughout this capital trial.” (Petition, Doc. No. 3,
PageID 695-96.) The Original Report found that this entire sub-claim had been dismissed by
Judge Sargus (Doc. No. 60, PageID 880).
The Objections note that while Judge Sargus’ opinion said that it was dismissing claim
9(I), “it is apparent from the record that the District Court was actually referring to one of the

38

components of claim 9 (H) (Objections, Doc. No. 63, PageID 1002-03). Upon examination, the
Magistrate Judge finds that there is a typographical error in Judge Sargus’ Decision and Order
(Doc. No. 30) at PageID 542-43 in the reference to “claim nine (I)” when the reference should
have been to a different sub-claim. Because of this typographical error, the Magistrate Judge did
not address Sub-claim 9(I) in the Original Report.
However, in dealing with the Second Ground for Relief, the Magistrate Judge has
concluded that the state court decision on these claims was neither contrary to nor an objectively
unreasonable application of Supreme Court precedent. Given that the state courts reached the
merits and found no error, there cannot have been ineffective assistance of trial counsel in failing
to raise these claims.

Sub-claim J: Cumulative Prejudice

Chinn claims in his Petition that the cumulative prejudice from counsel’s error is
sufficient to warrant habeas relief (Petition, Doc. No. 3, PageID 696). The Original Report
rejected this claim summarily (Doc. No. 60, PageID 880).

Chinn objects that “given the

multitude of errors that Chinn’s trial lawyers committed, there is clearly a reasonable probability
that Chinn would have received a more favorable verdict or sentence when the prejudicial effect
of the errors is considered cumulatively as required by Strickland.” (Objections, Doc. No. 63,
PageID 1003.) Having found no prejudice on any of the sub-claims, there is no prejudice to
accumulate.

Tenth Ground for Relief: Insufficient Evidence of Identity

39

In his Tenth Ground for Relief, Chinn asserts that there was constitutionally insufficient
evidence to identify him as the perpetrator of this crime. The Original Report concluded that the
Ohio Supreme Court applied the appropriate federal standard adopted in Jackson v. Virginia,
443 U.S. 307 (1979), and that its application was not objectively unreasonable (Doc. No. 60,
PageID 881-885).
Chinn objects that “the Magistrate Judge failed to examine the credibility and reliability
of [witness Marvin] Washington before relying on his testimony.” (Objections, Doc. No. 63,
PageID 1007.) Chinn notes that the court of appeals described Washington’s testimony as
“inherently suspect.” (Objections, Doc. No. 63, citing State v. Chinn, 1991 Ohio App. LEXIS
6497 *55), but this was in the context of criticizing the trial court’s weighing of mitigating
factors, not in suggestion there might have been insufficient evidence of identity.
Chinn relies on United States v. Cravero, 530 F.2d 666 (5th Cir. 1976), for the proposition
that testimony which is “unbelievable on its face” is insufficient to support a verdict. Cravero,
however, is not a case where the Court of Appeals overturned a verdict on such a basis. In fact,
the court overturned a Crim. R. 29 decision by a judge and reinstated a jury verdict precisely
because deciding credibility was for the jury:
We believe that for the testimony to be incredible it must be
unbelievable on its face. The fact that Lipsky has consistently lied
in the past, engaged in various criminal activities, thought that his
testimony would benefit him, and showed elements of mental
instability does not make his testimony incredible. Lipsky's
testimony on direct is quite plausible. This is not a case where a
witness testifies to facts that he physically could not have possibly
observed or events that could not have occurred under the laws of
nature. See, Geigy Chemical Corp. v. Allen, 224 F.2d 110, 114 (5th
Cir. 1955). To be sure Lipsky was thoroughly impeached on crossexamination, but one cannot say that his testimony could not have
been believed by a reasonable jury. [Footnote omitted.] See, e.g.,
40

United States v. Hill, 463 F.2d 235 (5th Cir. 1972); United States v.
Justice, 431 F.2d 30 (5th Cir. 1970).

530 F.2d at 670-71. In any event, Cravero was decided on direct appeal and long before the
adoption of the AEDPA which requires double deference in dealing with a sufficiency of the
evidence claim. Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per
curiam). Chinn’s Tenth Ground for Relief is without merit.

Eleventh Ground for Relief: Multiple Penalty Phase Jury Instruction Errors

The Original Report noted that this Ground for Relief had been dismissed by Judge
Sargus as procedurally defaulted (Doc. No. 60, PageID 885). Chinn makes no objection to this
conclusion.

Twelfth Ground for Relief: Improper Mitigation Jury Instructions

In his Twelfth Ground for Relief, Chinn claims that improper jury instructions created a
reasonable likelihood that the jury was not able to give “full mitigating effect” to his mitigation
evidence (Petition, Doc. No. 3 at 43). The Original Report recommended denying this Ground
for Relief on the merits (Doc. No. 60, PageID 890).
The Warden did not object to the Original Report’s failure to consider a procedural
default, but comments in response to Chinn’s Objections that the Court is permitted to consider
procedural default sua sponte. The Magistrate Judge declines to do so in the absence of an
objection by the Warden.

41

Although we ignore the procedural default, Chinn argues we should also give no AEDPA
deference to the Ohio Supreme Court’s opinion because that court did not ignore the default and
performed plain error review (Objections, Doc. No. 63, PageID 1015). However, the opinion of
a state court on plain error review is still entitled to AEDPA deference if the federal court
reaches the merits despite the procedural default, which is what this Court has done. Fleming v.
Metrish, 556 F.3d 520, 532 (6th Cir. 2009).
Chinn argues Metrish is not controlling precedent because it is subsequent in time to Jells
v. Mitchell, 538 F.3d 478 (6th Cir. 2008), relying on the well-settled rule that a subsequent threejudge panel cannot overrule the published decision of a prior panel (Objections, Doc. No. 63,
PageID 1015, citing United States v. McMurray, 653 F.3d 367 (6th Cir. 2011), and Salmi v.
Sec’y. of HHS, 774 F.2d 685 (6th Cir. 1985)).
In Fleming, Judge Gilman wrote for the court that plain error review by a state court did
not eliminate the obligation to give AEDPA deference to the merits of a decision by the state
court:
First, none of the cases cited by the dissent decide the question of
whether a claim reviewed for plain error by a state court dispenses
with our obligation to apply AEDPA deference to the merits of the
decision reached by that court. They instead discuss the
analytically prior question of whether a federal court is permitted
to hear an issue in the first place under the doctrine of procedural
default. See, e.g., Jells v. Mitchell, 538 F.3d 478, 511 (6th Cir.
2008) (holding that a claim not raised before the Ohio Court of
Appeals was procedurally defaulted even though the Ohio
Supreme Court reviewed the claim for plain error on direct
appeal); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006)
(holding that "a state court's plain error analysis does not save a
petitioner from procedural default"); Seymour v. Walker, 224 F.3d
542, 557 (6th Cir. 2000) (holding that habeas petitioners cannot
resurrect procedurally defaulted claims on the sole basis that a state
court has applied plain-error review to the issue on direct appeal).
We of course agree with these cases to the extent that they stand
for the well-established rule that a state court's application of plain42

error review does not revive a habeas petitioner's otherwise
procedurally defaulted claim on collateral review. But we disagree
with our colleague's view that they control not only this court's
ability to address a habeas petitioner's claim, but also the
appropriate standard of review to apply once we have determined
that the claim is reviewable on the merits.
Second, the question of whether a claim should be addressed on
collateral review under the judicially created doctrine of procedural
default is independent of the question of whether Congress
requires deference pursuant to AEDPA. This court declines to
review procedurally defaulted claims out of respect for state-court
enforcement of state procedural rules. Clinkscale v. Carter, 375
F.3d 430, 441 (6th Cir. 2004) (citing Coleman v. Thompson, 501
U.S. 722, 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991))
(observing that the purposes of the procedural-default rule include
concerns of comity and federalism). Similarly, Congress enacted
AEDPA "to further the principles of comity, finality, and
federalism." Williams v. Taylor, 529 U.S. 420, 436, 120 S. Ct.
1479, 146 L. Ed. 2d 435 (2000). But the fact that similar concerns
motivate both the procedural-default doctrine and AEDPA does
not permit us to ignore the latter simply because the former
doctrine is deemed inapplicable. Instead, we believe that this
court's jurisprudence is reasonably clear about when a state-court's
consideration of a claim is to be considered "adjudicated on the
merits" for the purpose of triggering our review under AEDPA.
See 28 U.S.C. § 2254(d).
Fleming v. Metrish, 556 F.3d 520, 530-531 (6th Cir. 2009). Thus Fleming does not purport to
overrule Jells, but to distinguish it. For a lower court, the question is not whether the distinction
is persuasive, but whether it was made by a majority of a Sixth Circuit panel in a published
decision. The Magistrate Judge finds Fleming is precedential. Chinn claims that Fleming is an
“incorrect statement of the law,” but it is nonetheless binding on this Court.
The portion of the instructions to which Chinn objects in this Ground for Relief reads as
follows:
You will consider all the evidence, the arguments, the statement of
the Defendant, and all of the information and reports that are
relevant to the nature and circumstances of the mitigating facts,
43

and the mitigating facts include but are not limited to the nature
and circumstances of the offense, and the history, character, and
background of the Defendant; and you may consider, I guess,
should consider any facts that are relevant to the issue of whether
the Defendant should be sentenced to death.
(Trial Tr. Vol. IV at 731, quoted in Objections, Doc. No. 63, PageID 1013.) Responding to a
request from the jury during deliberations for “a summary of the elements that make up the
mitigating and aggrevating [sic] circumstances/factors,” the judge gave this supplemental
instruction:
The aggravating circumstances are those that you have found in
previous specifications and the mitigating factors are those which
are relevant to the issue of whether the defendant should be
sentenced to death, and they include, but are not limited to, the
nature and circumstances of the offense and the history, character
and background of the defendant.
(Return of Writ, Apx. Vol. 1 at 289).
Chinn claims that these two instructions, taken together, somehow prevented the jury
from considering all of the mitigating evidence he had presented. First of all, Chinn reads the
first instruction as saying the jury was “free to completely ignore Chinn’s mitigating evidence.”
(Objections, Doc. No. 63, PageID 1014). No juror familiar with ordinary English usage would
construe those words in that way. The trial judge said “may consider” and then corrected
himself to say “should consider.” Using the words “I guess” in between would signify to the
ordinary listener that the judge had caught his mistake and corrected it. Certainly there can be no
objection to the words “should consider” taken alone. Certainly there can be no objection to the
judge’s correcting his mistake of saying “may consider.” And there is no clearly established
United States Supreme Court precedent holding that the manner in which the correction was
made somehow violates Chinn’s constitutional rights.
All the supplemental instruction does is to distinguish – accurately – between aggravating
44

circumstances (which in this and any Ohio case are only the capital specifications already found
by the jury to have been proven beyond a reasonable doubt) and mitigating factors (which
includes all evidence presented by the defendant relevant to whether he should be sentenced to
death, including without limitation the nature and circumstances of the offense and the history,
character and background of the defendant). The instructions do not comment on any of the
mitigating evidence offered by Chinn or suggest that any of it is worth less consideration than
any other or exclude any of it from consideration.
Jury instructions are not like ritual liturgical language which is required to be recited
verbatim. Chinn has failed to show, or even intelligibly argue, how a reasonable juror could
have misconstrued what the trial judge said so as to refuse to consider fully any relevant
mitigating evidence Chinn offered. Ground Twelve should be dismissed with prejudice, whether
considered after giving AEDPA deference to the Ohio Supreme Court decision or decided de
novo.

Thirteenth Ground for Relief: Issues on Remand

Refusal to Consider Additional Mitigating Evidence

In his Thirteenth Ground for Relief, Chinn asserts his constitutional rights were violated
when the trial judge refused to admit into evidence and consider additional mitigating evidence
proffered when the case was remanded for correction of the trial judge’s errors in imposing the
death sentence.
On the initial direct appeal in this case, the Ohio Court of Appeals decided that the trial
judge’s sentencing opinion did not show that it had given sufficient consideration of the

45

mitigating evidence which was presented. State v. Chinn, 191 Ohio App. LEXIS 6497, *48-56
(2nd Dist, 1991). It remanded the case not for a new sentencing trial, but for the trial judge to
“weigh the proper mitigating factors against the single aggravating circumstance . . . [and]
impose whatever lawful punishment it deems appropriate, including but not limited to a sentence
of death.” Id. at *67. On remand Chinn argued he should be allowed to present new mitigating
evidence not presented at trial, but the trial judge limited his consideration to the evidence
already presented and considered by the jury; he again imposed a death sentence. On a second
direct appeal, the court of appeals held this was proper procedure and the Ohio Supreme Court
affirmed. State v. Chinn, 1996 Ohio App. LEXIS 2530 (2nd Dist. 1996); State v. Chinn, 85 Ohio
St. 3d 548 ( (1999). On this particular issue, the Ohio Supreme Court held:
In this proposition [of law seven], appellant also argues that he had
"an absolute right to present any new mitigating evidence at his
resentencing hearing in 1994." In support of this proposition,
appellant relies on several United States Supreme Court opinions
requiring that the sentencer not be precluded from considering
relevant mitigating evidence in a capital case. See, e.g., Lockett v.
Ohio (1978), 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973;
Skipper v. South Carolina (1986), 476 U.S. 1, 106 S. Ct. 1669, 90
L. Ed. 2d 1; and Hitchcock v. Dugger (1987), 481 U.S. 393, 107 S.
Ct. 1821, 95 L. Ed. 2d 347. However, each of those cases involved
a situation where the capital sentencer was prohibited, in some
form or another, from considering relevant mitigating evidence at
trial. In the case at bar, no relevant mitigating evidence was ever
excluded from consideration during the penalty phase of
appellant's 1989 trial. Therefore, the case at bar is clearly
distinguishable from the United States Supreme Court's
pronouncements in Lockett, Skipper, and Hitchcock. Accordingly,
as was the case in State v. Davis (1992), 63 Ohio St. 3d 44, 46, 584
N.E.2d 1192, 1194-1195, we find Lockett, Skipper, and Hitchcock
to be inapplicable here. It is of no consequence that the additional
mitigating evidence in Davis involved post-trial accomplishments,
whereas appellant's additional mitigation evidence involves
matters appellant claims he could have presented but did not
present during the mitigation phase of his 1989 trial. In this case,
as in Davis, the errors requiring resentencing occurred after the
close of the mitigation phase of the trial. Under these
46

circumstances, the trial court is to proceed on remand from the
point at which the error occurred. Appellant's arguments to the
contrary are not well taken. In addressing this issue, the appellate
court stated, "In sum, Chinn was not entitled to an opportunity to
improve or expand his evidence in mitigation simply because we
[the court of appeals] required the trial court to reweigh the
aggravating circumstance and mitigating factors." Chinn,
Montgomery App. No. 15009, unreported, at 6. We agree with the
court of appeals' assessment of this issue.
Id. at 564-65.
The Original Report concluded the Ohio Supreme Court’s decision in this claim was
neither contrary to nor an unreasonable application of the relevant United States Supreme Court
precedent (Doc. No. 60, PageID 895-901).
Chinn argues the Ohio Supreme Court’s refusal to extend Skipper v. North Carolina, 476
U.S. 1 (1986), to this case was objectively unreasonable. He argues that “[t]he fact that the
evidence was available at the time of Chinn’s initial sentencing is completely irrelevant.”
(Objections, Doc. No. 63, PageID 1021.) What the Ohio Supreme Court held was that “the
errors requiring resentencing occurred after the close of the mitigation phase of the trial. Under
these circumstances, the trial court is to proceed on remand from the point at which the error
occurred.” The unspoken premise is that the State had a substantial interest in the error-free jury
verdict and recommendation of a capital sentence. The purpose of the remand was to have the
trial judge decide on a sentence on the basis of the same evidence the jury had considered, which
is completely consistent with Ohio’s capital sentencing scheme. Nothing in Skipper, Lockett, or
Eddings suggests that any of them require the evidence to be reopened when a case is remanded
for correction of errors in a sentencing opinion.
In Oregon v. Guzek, 546 U.S. 517 (2006), the Supreme Court decided that Lockett did not
prohibit a State from limiting the innocence-related evidence a capital defendant can introduce at

47

a sentencing proceeding to the evidence introduced at the original trial. Chinn argues that state
court decisions must be measured against Supreme Court precedent at the time they are handed
down, citing, correctly, Greene v. Fisher, 132 S. Ct. 38 (2011)(Objections, Doc. No. 63, PageID
1022). But Guzek did not overrule earlier Supreme Court precedent, instead refusing to extend it
in a way parallel to what Chinn seeks here. What it shows instead is that it was not objectively
unreasonable to refuse to extend Lockett or Eddings because all eight justices who participated in
Guzek – all presumably reasonable jurists -- did not think such an extension was required by
precedent.

Refusal to Void the Death Sentence Altogether

In the Thirteenth Ground for Relief Chinn also claims that the original jury’s death
penalty recommendation became void when the court of appeals remanded the case for
resentencing (Petition, Doc. No. 3 at 45). The Original Report rejected this claim on the basis
that “[n]o United States Supreme Court precedent commands a re-trial under those
circumstances,” i.e., the circumstances presented by this remand where the error occurred after
the jury made its recommendation.
Chinn objects that the Ohio Supreme Court’s decision in this case violates the Due
Process Clause because it represents “a marked and unpredictable departure from existing
precedent.” (Objections, Doc. No. 63, PageID 1023.) The previously existing precedent on
which Chinn relies is State v. Penix, 32 Ohio St. 3d 369 (1987). But the Ohio Supreme Court in
this case did not overruled Penix and the decision here is not inconsistent with Penix. As the
Ohio Supreme Court explained in State v. White, 132 Ohio St. 3d 344 (2012), it had held in

48

Penix that the trial jury which recommends the death sentence must be the same trial jury that
convicted the offender in the guilt phase. Id. at ¶ 5. That is precisely what happened here.
There is no retroactive application of an overruling of Penix which must be justified under
Supreme Court retroactivity jurisprudence. And as Rogers v. Tennessee, 532 U.S. 451 (2001),
makes clear, even a state court decision which declines to follow any longer a very well-settled
common law rule (to wit, it is not murder unless the victim dies within a year and a day), is not
void on retroactivity grounds.

Fourteenth Ground for Relief: Improper Unanimity Instruction

The Original Report noted that this Ground for Relief had been dismissed by Judge
Sargus as procedurally defaulted (Doc. No. 60, PageID 901). Chinn makes no objection to this
conclusion.

Fifteenth Ground for Relief: Ineffective Assistance in Mitigation

In his Fifteenth Ground for Relief, Chinn claims he received ineffective assistance of trial
counsel in mitigation when his defense counsel did not present certain enumerated mitigating
evidence, to wit, evidence of good behavior while incarcerated (admissible under Skipper, supra)
and additional evidence supporting a residual doubt conclusion.
The additional evidence was considered by the court of appeals on appeal from denial of
Chinn’s application for post-conviction relief.

It concluded that the Skipper evidence, if

presented, would not have changed the outcome of the sentencing proceeding and that the

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residual doubt evidence was irrelevant to “the issue of whether the defendant should be
sentenced to death.” State v. Chinn, 1998 Ohio App. LEXIS 3857 *12 (2nd Dist. 1998). The
Original Report concluded this decision was neither contrary to nor an unreasonable application
of the relevant United States Supreme Court precedent (Doc. No. 60, PageID 910-11).
Chinn objects that the Skipper evidence is persuasive (Objections, Doc. No. 63, PageID
1026). However, he presents no authority to show the court of appeals conclusion is contrary to
Supreme Court precedent.

Skipper requires that behavior while incarcerated evidence be

admitted if offered, but does not provide what weight must be given to it.
Chinn also complains that, in rejecting residual doubt as a mitigating factor, the court of
appeals was improperly applying standards of professional conduct which were adopted after the
trial, rather than those prevailing at the time of the trial (Objections, Doc. No. 63, PageID 102627). That is not what the court of appeals did. Rather, that court recognized that the Ohio
Supreme Court had allowed residual doubt evidence in mitigation prior to 1997, but had begun
excluding it as of its decision in State v. McGuire, 80 Ohio St. 3d 390 (1997). What changed in
McGuire was not professional standards for attorneys litigating capital cases, but the evidence
which is relevant in mitigation in those cases. Moreover, the timing of McGuire reinforces the
correctness of the court of appeals’ decision: while McGuire was decided after this case was
tried, it was decided well before this case was decided on direct appeal by the Ohio Supreme
Court in 1999. Thus had defense counsel presented the proffered residual doubt evidence in
mitigation at trial, it would have been disregarded as irrelevant when the case reached the Ohio
Supreme Court. It was thus not ineffective assistance of trial counsel to fail to present it.

Sixteenth Ground for Relief: Chinn’s Absence During a Critical Stage of the Trial

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In his Sixteenth Ground for Relief, Chinn claims he was absent when the trial court
clarified instructions with the jury. The Ohio Supreme Court denied this claim on the merits,
finding that the record did not show he or his attorney was absent and Ohio law required an
affirmative showing of absence to justify a new trial. State v. Chinn, 85 Ohio St. 3d 548, 568
(1999). The Original Report recommended this claim be denied on the merits, noting that there
was no record evidence that Chinn or his attorney was absent at the asserted times (Doc. No. 60,
PageID 911-15).
Chinn objects that “[t]here is absolutely no indication in the record that either Chinn or
his attorneys were present when this exchange between the judge and the jury took place”
(Objections, Doc. No. 63, PageID 1031). However, Chinn also cites to no direct evidence that he
or his lawyers were absent at the relevant time. He asks this Court instead to infer his absence
from the silent record. Id.
The Ohio rule followed by the Ohio Supreme Court in this case is that error will not be
presumed from a silent record. That rule is not esoteric; in fact it is followed by the Supreme
Court. Walker v. Johnston, 312 U.S. 275 (1941). Chinn presents no authority requiring this
Court to presume he was absent from a silent record.
Moreover, if it were the case that Chinn was absent, he has access to evidence dehors the
record which he could have presented in post-conviction, to wit, his own affidavit and/or that of
his defense counsel. The absence of any such evidence strengthens the conclusion that he was in
fact present.
But Chinn asserts the Ohio Supreme Court decision is contrary to clearly established
Supreme Court law, to wit, Johnson v. Zerbst, 304 U.S. 458 (1938). In Johnson, the Supreme

51

Court held that the waiver of a fundamental right could not be presumed from a silent record;
Johnson is the fundamental precedent which leads to careful examination of defendants and
recording of their responses any time a waiver is involved.
But Johnson is not applicable to this case because the Ohio Supreme Court did not
presume Chinn had waived his right to be present and have his counsel present at every critical
stage of the proceedings. Instead, it presumed he and his attorney(s) were present because the
record did not show the contrary. The State has not claimed that Chinn waived his right to be
present with counsel. Waiver of the right is not in question. Rather the question is one of fact:
were they present?

Because he had a constitutional right that they both be present, the

proceedings would have been “irregular” if he had not been present. But no Supreme Court
precedent holds that facts supporting the regularity of trial court proceedings cannot be presumed
from a silent record. And Johnson itself says that the regularity of a state court judgment is to be
presumed. Id. at 468
Chinn also objects that the Ohio Supreme Court never made a factual finding that Chinn
and his lawyers were present and so the decision of the state court is not entitled to the
presumption of correctness provided by 28 U.S.C. § 2254(e)(1). The Magistrate Judge agrees
that there is no factual finding that they were present, but no such finding is necessary where
they were presumed to be present in the absence of evidence to the contrary and no rule of
constitutional law prohibits that presumption.

Seventeenth Ground for Relief: Biased Trial Judge

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In his Seventeenth Ground for Relief, Chinn asserts he was denied his constitutional
rights when he was tried by a biased judge. The Original Report concluded this claim had been
dismissed by Judge Sargus and no objections have been made to that conclusion.

Eighteenth Ground for Relief: Victim Impact Statement

After the jury was discharged, the victim’s mother made a statement to the trial judge in
open court but before sentence was pronounced. In his Eighteenth Ground for Relief, Chinn
asserts that this statement violated his constitutional rights. Mrs. Jones’ statement in full is as
follows:
First of all, I want to say this is very hard and very difficult for us.
We are here for our son, Brian Jones, who cannot be here to speak
for himself, so we're here to speak on his behalf and for the rest of
our family. First of all, we would like for you and everyone to
know what a great loss that we have suffered, the pain has been
and will be beyond what words could describe. Only another
person that has lost a child to such a tragedy could begin to feel the
empty, lonely feelings. Needless to say, we have suffered the
greatest loss of our entire life. We know that nothing or no one is
going to replace that empty and void feeling and that part of our
lives are gone. Now, we must begin to try to pick up the pieces and
put our lives back together as good as we can. I really don't feel
that this will ever be possible because, first of all, we feel very
threatened by this Defendant and his family. We have not done or
said anything, your Honor, about them; but yet, we are afraid for
our safety and we feel very threatened by them. I'm afraid to leave
my home alone. I'm afraid for my daughter to leave her home
alone; and regardless of what I'm doing, if I know that she's
leaving, I will quit whatever I'm doing and go and be with her
because I fear what could happen to her. I fear of the morning
when my husband leaves for work. I stand at the window. He
leaves just before daylight. I stand at the window and watch him
until he gets in his car and pulls out our driveway. Never in my life
have I ever done this before, I've been doing this ever since our son
has been killed. Your Honor, this terrible, threatening fear that we
are living with is not a good feeling. We really do feel -- We really
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do feel very threatened by this Defendant and what he might do
our family. With his previous record, if he had been put away
where he should have been, my son may be living today. Your
Honor, this makes me feel very ill inside to think that if this
Defendant had not been out there on the streets, on January 30th,
that my son would be with us. We would not be going through all
of this pain that we’re feeling. We would not be afraid and feel
threatened as we do today. Your Honor, we feel that this
Defendant has been given every opportunity that there is. He’s
been on shock probation, and by his own actions, has chosen not to
accept any of them; and now we feel that the time has come for
him to be punished according to the law of Ohio. My family and I
thank you and the Courts for being kind to us, and for everything
you have done. Thank you a lot.
(Return of Writ, Trial Tr. Vol. V, pp. 740-42)
This claim was Chinn’s twenty-first proposition of law before the Ohio Supreme Court
which decided the claim as follows:
Proposition of Law No. XXI
Appellant's twenty-first proposition of law concerns alleged
victim-impact evidence that was heard by the trial judge after the
jury was discharged but immediately before the trial court
pronounced sentence on all of the crimes appellant was found
guilty of committing. Appellant claims that the evidence included
an expression of opinion by Brian Jones's mother that appellant
should be sentenced to death. However, Mrs. Jones never
specifically stated her opinion as to the appropriate punishment.
Rather, she stated that "now we feel that the time has come for
[appellant] to be punished according to the law of Ohio." Appellant
also complains that Mrs. Jones stated or implied that appellant was
incapable of rehabilitation. However, the record does not fully
support appellant's claims in this regard. Moreover, and in any
event, there is absolutely nothing in the record to suggest that the
trial court was influenced by irrelevant factors in sentencing
appellant for the capital crime. Therefore, we find no reversible
error here.

State v. Chinn, 85 Ohio St. 3d 548, 575-76 (1999). In the Original Report the Magistrate Judge
agreed with this decision and found no constitutional violation had been proved.

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In his Objections, Chinn relies on Payne v. Tennessee, 501 U.S. 808 (1991), for the
proposition that “[t]he Eighth Amendment prohibits the introduction of victim impact statements
consisting of the ‘victim’s family members’ characterizations and opinions about the crime, the
defendant, and the appropriate sentence.’” (Doc. No. 63, PageID 1039, citing Payne, 501 U.S. at
830, n. 2).
In Payne, while allowing some victim impact evidence, the Supreme Court left standing
the prohibition from Booth v. Maryland, 482 U.S. 496, 509 (1987), of victim statements about
“the crime, the defendant, or the appropriate sentence.” Payne, 501 U.S. 808, 825. Mrs. Jones’
statement does not speak about the crime. As to Chinn, she says she and her family feel
threatened by him and his prior opportunities for rehabilitation had not been successful, which
certainly constitute comments on the defendant. As to sentence, Mrs. Jones does not advocate
for the death penalty, but rather that he should now be punished “according to the law of Ohio,”
which at the time allowed sentence of death, life with possible parole at thirty years, and life with
possible parole at twenty years.
The Original Report held that, “even if we find a violation [of Booth and Payne], the
statements must be so prejudicial as to render the trial fundamentally unfair.” (Doc. No. 60,
PageID 918). Chinn concedes that this is the proper standard for evaluating a Due Process claim
relating to victim impact statements, but claims the proper standard for an Eighth Amendment
claim is whether the statements had “a substantial and injurious effect on the penalty phase
verdict.” (Objections, Doc. No. 63, PageID 1041, citing Hooper v. Mullins, 314 F. 3d 1162,
1174 (10th Cir. 2002). The Tenth Circuit’s opinion does not indicate it is addressing an Eighth as
opposed to Fourteenth Amendment claim. In any event, the victim impact statement in that case
expressly told the jury “that they believed Petitioner deserved to die.” Id.

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The Tenth Circuit

found a constitutional error, but held it was harmless under Brecht v. Abrahamson, 507 U.S. 619
(1993). Hooper provides no precedential support for Chinn’s argument on what prejudice must
be shown.
The Original Report relied on Fautenberry v. Mitchell, 515 F.3d 614 (6th Cir. 2008), for
the proposition that the risk of any improper influence on the sentence is severely diminished
when it is heard only by the judge. Chinn claims Fautenberry is “an incorrect statement of the
law,” but the claim is purely conclusory: Chinn cites no Sixth Circuit or Supreme Court law to
the contrary (Objections, Doc. No. 63, PageID 1040). Fautenberry is consistent with the usual
rule that judges, as opposed to juries, are presumed to disregard irrelevant or immaterial
evidence. Inadmissible evidence is presumed to be ignored by a judge in a bench trial. Harris v.
Rivera, 454 U.S. 339, 346 (1981)(per curiam); Wickline v. Mitchell, 319 F.3d 813, 823-24 (6th
Cir. 2003). Similarly, a three-judge panel in an Ohio death penalty case may be presumed to
ignore inflammatory argument and inadmissible evidence. Smith v. Mitchell, 348 F.3d 177 (6th
Cir. 2003).
In Post v. Bradshaw, 621 F.3d 406 (6th Cir. 2010), the court held error in admission of
victim impact statements could be cured on reweighing. Chinn again claims this is an “incorrect
statement of the law” and quotes from Judge Merritt’s dissenting opinion in Baston v. Bagley,
420 F.3d 632 (6th Cir. 2005), that the Ohio Supreme Court does not understand its role in capital
cases. However, neither the United States Supreme Court nor any published majority opinion of
the Sixth Circuit has held that Ohio Supreme Court decisions are not entitled to AEDPA
deference in appropriate circumstances. And of course in this case, where the crime occurred
before January 1, 1995, reweighing occurred at both the intermediate appellate and supreme
court levels.

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Chinn claims no AEDPA deference is due to the Ohio Supreme Court’s conclusion that
Chinn’s allegation that Mrs. Jones had said or implied he was incapable of rehabilitation was not
what she had said.

Actually, the Ohio Supreme Court said this allegation was “not fully

supported by the record.” 85 Ohio St. 3d at 575. That conclusion is, in the Magistrate Judge’s
opinion, a fair reading of her statement. She says Chinn has been given opportunities and shock
probation which he has not taken advantage of. That statement partially supports Chinn’s
allegation, but she did not draw the conclusion that he could never be rehabilitated. In particular,
she stated that if he had been incarcerated for his prior offenses, he would not have been on the
street to commit this murder.
Finally Chinn complains the Ohio Supreme Court improperly placed on Chinn the burden
of proving that a Payne violation did not prejudice his position instead of requiring the State to
prove the error was harmless beyond a reasonable doubt (Objections, Doc. No. 63, PageID
1044). Of course, Brecht has replaced the harmless beyond a reasonable doubt standard of under
Chapman v. California, 386 U.S. 18 (1967). And if Fautenberry is followed, no Eighth or
Fourteenth Amendment violation occurred.

Nineteenth Ground for Relief: Vagueness of the Ohio Death Penalty Statute

In his Nineteenth Ground for Relief, Chinn asserts the Ohio capital statute is vague and
therefore its application to him violates his Eighth Amendment rights (Petition, Doc. No. 3 at
62.) The Original Report found that Judge Sargues had dismissed this claim as procedurally
defaulted (Doc. No. 60 at PageID 919). Chinn has not objected to this conclusion.

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Twentieth Ground for Relief: Ineffective Assistance of Appellate Counsel

In his Twentieth Ground for Relief, Chinn claims he received ineffective assistance of
appellate counsel in that his appellate attorneys failed to assign as error on his first appeal of
right7 the following matters:
A. Counsel failed to assign as error the vagueness defect in Ohio’s
sentencing scheme. O.R.C. § 2929.03(D)(1) incorporates the
nature and circumstances of the offense, a statutory mitigating
factor under O.R.C. § 2929.04(B), into the aggravating
circumstance. Accordingly, petitioner’s death sentence is arbitrary.
Godfrey v. Georgia, 446 U.S. 420 (1980); Stringer v. Black, 503
U.S. 222 (1993).
B. Counsel failed to assign as error the trial court’s failure to
define “principal offender,” which was an essential element of the
O.R.C. § 2929.04(A)(7) aggravating circumstance in this case. See
Cabana v. Bullock, 474 U.S. 376 (1986).
C. Counsel failed to assign as error, the trial court’s erroneous
instruction on both the “principal offender” and “prior calculation
and design” components of the O.R.C. § 2929.04 (A)(7)
aggravating circumstance. Only one of those statutory alternative
applied to this case and it was improper to instruct the jury on both.
State v. Penix, 513 N.E.2d 744 (Ohio 1987). Counsel’s failure to
assign this issue as error was certainly prejudicial to petitioner
because the court of appeals vacated his death sentence, inter alia,
because the trial court considered both components in its original
sentencing calculus. State v. Chinn, No. 1991 WL 289178, 15-17
(Ohio App. 2nd Dist. 1991).
D. Last, appellate counsel were ineffective because they failed to
assign as error trial counsel’s failure to object to the errors in
paragraphs A-C, supra. Strickland, 466 U.S. 668.

(Petition, Doc. No. 3 at 65.)
The Ohio Supreme Court summarily denied this claim on the merits on the basis that,

7

As noted above, because the murder in this case occurred before January 1, 1995, the direct appeal was in the first
instance to the Second District Court of Appeals.
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because appellate counsel had obtained two reversals of the death sentence, they must have been
effective and “[n]one of the instances of alleged ineffective assistance of appellate counsel
compels reversal here.” State v. Chinn, 85 Ohio St. 3d 548, 576 (1999).
The Original Report found that Judge Sargus had effectively found no merit to the first
sub-claim when he held the Nineteenth Ground for Relief procedurally defaulted (Doc. No. 60,
PageID 921). The same analysis applied to the second sub-claim by virtue of Judge Sargus’
conclusion that the Seventh Ground for Relief was procedurally defaulted. Id. at 921-22. The
third sub-claim had been similarly decided in Judge Sargus’ dismissal of sub-claim c of the
Eleventh Ground for Relief. Id. As to the last sub-claim, Judge Sargus had decided that the
underlying claim, Ground Nine, sub-claim d, was without merit. Id. at PageID 923.
Chinn objects to the proposed disposition of Ground Twenty, but does not object to the
Original Report’s conclusion that Judge Sargus has already decided these claims (Doc. No. 63,
PageID 1046-1049.
Chinn further asserts that the Ohio Supreme Court’s decision on these claims is not
entitled to AEDPA deference because it failed to consider the cumulative effect of appellate
counsel’s errors (Objections, Doc. No. 63, PageID 1049-1051). That argument ignores the fact
that the Ohio Supreme Court found no appellate counsel errors to cumulate. A state appellate
court need not write at length to be entitled to AEDPA deference. Harrington v. Richter, 562
U.S. ___, 131 S. Ct. 770 (2011).

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Conclusion
Chinn’s Objections are unpersuasive.

The Magistrate Judge accordingly again

respectfully recommends that the Petition be dismissed with prejudice, but that Chinn be granted
a certificate of appealability on Grounds One, Three, Five A, and Thirteen.
June 28, 2013.
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. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). 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. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. 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. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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