Conway, III v. Houk

Filing 316

DECISION AND ORDER DENYING MOTION TO STAY 313 . Signed by Magistrate Judge Michael R. Merz on 9/26/2023. (kpf)

Case: 3:07-cv-00345-TSB-MRM Doc #: 316 Filed: 09/26/23 Page: 1 of 15 PAGEID #: 21690

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES T. CONWAY III,
Petitioner,

:

- vs -

Case No. 3:07-cv-345
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

MARC C. HOUK, Warden,
Correctional Institution,
:
Respondent.

DECISION AND ORDER DENYING MOTION TO STAY

This capital habeas corpus case is before the Court on Petitioner’s Motion to Hold These
Proceedings in Abeyance Pending the Exhaustion of State Court Remedies. (ECF No. 313.) A
motion to hold the proceedings in abeyance is a non-dispositive motion on which a Magistrate
Judge may render a decision, rather than a recommendation. For the reasons that follow, the
Court DENIES Petitioner’s motion.
I.

BACKGROUND
Petitioner was convicted and sentenced to death for the September 2001 aggravated

murder of Andrew Dotson. State v. Conway, 109 Ohio St.3d 412 (2006). Following direct
appeal and state postconviction proceedings, Petitioner initiated the instant habeas action on
August 1, 2007, by filing a notice of intent to file a habeas petition, as well as motions to proceed
in forma pauperis and for the appointment of counsel. (ECF Nos. 1-4.) Petitioner filed his initial
habeas petition on June 1, 2008, raising nineteen claims for relief. (ECF No. 15.) On February
19, 2013, and with leave of Court, Petitioner filed an Amended Petition. (ECF No. 180.)
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In the early stages of this habeas action, the Court permitted considerable factual
development.

Petitioner filed with this Court the transcripts of the depositions and other

documents obtained as part of the discovery process. (ECF Nos. 56-61, 65-81.) Petitioner also
conducted discovery in his other capital habeas case. See Conway v. Houk, Case No. 3:07cv345
(S.D. Ohio). On April 29, 2011, Petitioner filed a motion to hold these proceedings in abeyance
so he could return to state court to file a new postconviction action in order to exhaust claims and
evidence developed during federal habeas discovery. (ECF No. 121.) These claims pertained to
Attorney Christopher Cicero’s conflict of interest and the State’s alleged suppression of Brady
material. With respect to the Brady claim, Petitioner alleged the discovery he obtained in habeas
corpus established the prosecution suppressed evidence with respect to 1) the non-fatal shooting
of Jesse James and James’s initial identification of the shooter, 2) Attorney Cicero’s cooperation
with investigators, and 3) Ronald Trent’s failure to provide accurate information in another
murder case. (Id., at PAGEID # 3198-3200.) On September 6, 2011, the Court issued a
Decision and Order granting Petitioner’s motion and holding the proceedings in abeyance (ECF
No. 133.)
In November 2011, Petitioner filed his second postconviction petition with the state trial
court, pleading five claims for relief. (ECF No. 231-1, at PAGEID # 15708.) Specifically,
Petitioner alleged the State suppressed exculpatory Brady material, his initial attorney (Cicero)
suffered a conflict of interest, trial counsel were ineffective during both the penalty and
mitigation phases, and cumulative error resulted in the denial of his constitutional rights. (Id. at
PAGEID # 15729-15740.)
Ohio imposes stringent jurisdictional requirements for pursuing an untimely and/or
successive postconviction action, and the state courts in Petitioner’s case determined he failed to

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satisfy those requirements. (ECF No. 231-3, at PAGEID # 16123, 16330.) On April 10, 2012,
the trial court denied the successive postconviction petition without a hearing, finding “[b]ecause
R.C. 2953.23 is constitutional and defendant provides no exception to the limitations contained
therein, the Court is barred from consideration of the merits.” (Id. at PAGEID # 16123.) The
trial court also noted that “defendant’s challenges in this motion are identical to those presented
in his first petition and in his direct appeals” and “[h]e does not allege new facts or rights under
R.C. 2953.23(A)(1)(a) and (b).” (Id. at PAGEID # 16122.)
The Tenth District Court of Appeals affirmed. (ECF No. 231-3, at PAGEID # 16330);
State v. Conway, No. 12AP-412, 2013-Ohio-3741, 2013 WL 4679318 (Ohio App. 10th Dist.
Aug. 29, 2013). The Court of Appeals determined that Petitioner “arguably” satisfied the
requirement of R.C. § 2953.23(A)(1)(a) that he was unavoidably prevented from discovering the
documents and facts relied upon in the successor petition, because the State did not provide the
documents until federal habeas discovery.

(ECF No. 231-3, at PAGEID # 16320-16321.)

Nevertheless, the court of appeals agreed the trial court lacked subject matter jurisdiction to hear
the successor petition, because Petitioner failed to show by clear and convincing evidence that
but for constitutional error at trial, no reasonable juror would have found him guilty. (Id. at
PAGEID # 16330.) With respect to the allegations concerning Attorney Cicero’s disclosure of
privileged information to law enforcement, the court of appeals noted that Attorney Cicero was
removed as counsel at an early stage of the proceedings and Petitioner failed to identify any
specific information or evidence that was derived in violation of the attorney-client privilege.
(Id. at PAGEID # 16325.) As to the alleged Brady violation, the court concluded Petitioner
failed to establish that but for the Brady violation, the outcome of his trial would have been
different.

(Id. at PAGEID # 16325-16327.) The Ohio Supreme Court declined to accept

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jurisdiction over Petitioner’s appeal. State v. Conway, 143 Ohio St.3d 1464 (2015); (ECF No.
231-3, at PAGEID # 16489.)
On March 19, 2013, Petitioner, acting pro se, filed a third postconviction petition, raising
four claims for relief, as well as a motion for the appointment of counsel. (ECF No. 276-1, at
PAGEID # 18963-19028.)

The state trial court denied the motion to appoint counsel.

Subsequently, this Court authorized federal habeas counsel to expand the scope of their
representation to include the state court successor postconviction proceedings. (ECF No. 201.)
On January 4, 2016, and represented by counsel, Petitioner filed an amended successor
postconviction petition setting forth nine claims for relief. (ECF No. 276-2, at PAGEID #
20739-20788.) Petitioner challenged the adequacy of Ohio’s postconviction review process and
asserted several instances of ineffective assistance of trial counsel and initial postconviction
counsel. The trial court dismissed the amended petition, finding “res judicata bars the majority
of Defendant’s claims as the claims in the Amended Third Post-conviction Petition are identical
or substantially similar to those presented in his first and second post-conviction petitions.” (Id.
at PAGEID # 20891.). Additionally, the trial court concluded:
Assuming arguendo that the Amended Third Post-Conviction
Petition satisfies R.C. 2953.23(A)(1)(a) and Defendant was
somehow, “unavoidably prevented” from discovering the facts
upon which his amended third petition relies, this Court finds the
petition nevertheless fails because it is barred by res judicata, and
Defendant has failed to prove, by clear and convincing evidence,
that any constitutional error deprived him of a fair trial.
(ECF No. 276-2, at PAGEID # 20890.)
On June 6, 2019, the Tenth District Court of Appeals affirmed the decision of the trial
court. (ECF No. 276-3, at PAGEID # 21212); State v. Conway, No. 17AP-504, 2019 WL
2404897 (June 6, 2019).

The court of appeals held that Petitioner failed to clear the
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jurisdictional bar:
Conway has not demonstrated he was entitled to have the trial
court review his successive petition for post-conviction relief
because he did not satisfy both prongs of R.C. 2953.23(A)(1), as
required for the trial court to have jurisdiction over his claims.
(ECF No. 276-3, at PAGEID # 21227.)

Specifically, the court noted that much of the

information presented was known to Petitioner all along, particularly the evidence relating to his
own conversations with informant Ronald Trent.

(ECF No. 276-3, at PAGEID # 21219.)

Moreover, the appellate court concluded that “[g]iven the overwhelming evidence of the scheme
that the jury considered, the purported inconsistencies that Conway points to do not amount to
clear and convincing evidence under R.C. 2953.23(A)(1) that would have cast doubt on the
conspiracy to murder Arthurs, much less alter the ultimate result of his trial.” (Id. at PAGEID #
21220.) On October 29, 2019, the Ohio Supreme Court declined to exercise jurisdiction over
Petitioner’s appeal. (Id. at PAGEID # 21368); State v. Conway, 157 Ohio St.3d 1465 (2019).
Upon return to these habeas proceedings, and on April 3, 2020, Petitioner filed a motion
for leave to file a second amended habeas petition. (ECF No. 281.) In the proposed second
amended petition, Petitioner included portions of the claims for relief contained in the two
successive postconviction petitions as part of his proposed second, tenth, and eleventh claims for
relief. (ECF No. 282.) The undersigned denied the motion to amend because the proposed
amended petition also included two additional claims asserting cumulative error and a
constitutional challenge to Ohio’s lethal injection method of execution (claims seventeen and
eighteen), both of which are not cognizable in habeas corpus. (ECF No. 292.) Objections to the
Decision and Order denying leave to amend, as well as to the undersigned’s subsequent
Supplemental Memorandum on the Motion to Amend, (ECF No. 304), remain pending. (ECF

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Nos. 297, 301, 308.) In the Supplemental Memorandum, the undersigned clarified that Petitioner
should be permitted to amend or refine his statement of his other claims for relief and directed
Petitioner to re-submit his proposed amended petition once the objections are resolved. (ECF
No. 304, at PAGEID # 21625.)

II.

MOTION TO STAY
Citing the Ohio Supreme Court’s recent decision in State v. Bethel, 167 Ohio St.3d 362

(2022), Petitioner now moves to stay and hold the proceedings in abeyance once again, so he
may return to the state courts for a third time in order to pursue the same Brady and conflict of
interest/ineffective assistance of counsel claims the state courts previously dismissed. (ECF No.
313.) Petitioner also moves the Court to authorize his federal habeas counsel to represent him
during his anticipated state court proceedings. The Warden opposes Petitioner’s motion. (ECF
No. 314.) Petitioner has filed a Reply. (ECF No. 315.)
Petitioner contends the Ohio Supreme Court’s decision in Bethel expands the scope of the
successive postconviction remedies that Petitioner previously pursued, and opens the possibility
of pursuing a motion for a new trial, thus rendering portions of his second, tenth, and eleventh
claims for relief unexhausted. (ECF No. 313, at PAGEID # 21664.) Specifically, Petitioner
argues that Bethel lowered the standard of proof for satisfying Ohio’s successor postconviction
jurisdictional prerequisites set forth in Ohio Rev. Code § 2953.23(A)(1), and also removed a
time limitation for seeking a new trial based on newly discovered evidence pursuant to Ohio
Crim. R. 33.
Respondent opposes Petitioner’s motion to stay, arguing that Petitioner has already
exhausted the new claims set forth in his Amended Petition and there are no additional state

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court remedies available to Petitioner. (ECF No. 314, at PAGEID # 21670.)
The Court’s analysis of this issue must necessarily begin with a discussion of the Ohio
Supreme Court’s Bethel decision.
A. State v. Bethel
In State v. Bethel, 167 Ohio St.3d 362 (2022), and more recently, State v. McNeal, 169
Ohio St.3d 47 (2022), and State v. Hatton, 169 Ohio St.3d 446 (2022), the Ohio Supreme Court
considered when a trial court has subject matter jurisdiction to consider a post-trial Brady claim
set forth in either a successive postconviction petition or a Criminal Rule 33 motion for leave to
file a motion for a new trial. The issue before the Ohio Supreme Court was whether a timeliness
or due diligence requirement could be imposed upon a petitioner after discovering (or after the
point when a petitioner should have discovered) the State withheld Brady material.
Ohio Revised Code § 2953.23(A)(1) conditions trial court jurisdiction over untimely or
successive postconviction petitions on a petitioner’s showing that (a) he was “unavoidably
prevented from discovery of the facts” underlying his claim, and (b) no reasonable factfinder
would have found him guilty or eligible for a death sentence but for the constitutional error at
trial. In Bethel, the Supreme Court of Ohio held that a petitioner asserting a claim under Brady
v. Maryland, 373 U.S. 83 (1963), “satisfies the ‘unavoidably prevented’ requirement contained
in Ohio Revised Code § 2953.23(A)(1)(a) by establishing that the prosecution suppressed the
evidence on which the defendant relies.” 167 Ohio St.3d at 368.

Bethel made clear that

petitioners are not required to show they could not have discovered suppressed evidence by
exercising reasonable diligence, because that “burden” is “inconsistent with Brady.”

Id.

Quoting Banks v. Dretke, 540 U.S. 668, 695 (2004), the Bethel court emphasized that criminal
defendants “have no duty to ‘scavenge for hints of undisclosed Brady material.’” Id. (quoting

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Dretke, 540 U.S. at 695).

The Ohio Supreme Court also interpreted the “no reasonable

factfinder” requirement contained in Ohio Revised Code § 2953.23(A)(1)(b) as coterminous
with Brady materiality, by considering the merits of Bethel’s Brady claim in its determination of
jurisdiction over the successive petition.

The Ohio Supreme Court advised that the §

2953.23(A)(1)(b) requirement “goes to the heart of Brady’s third prong, which requires Bethel to
show that ‘there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’” Bethel, 167 Ohio St.3d at 369-70
(quoting Kyles v. Whitley, 514 U.S. 419, 433 (1995)). Bethel, the court concluded, was “not
require[d] to show that disclosure of the [] information would have resulted in his acquittal.” Id.
The Ohio Supreme Court also determined that Criminal Rule 33 does not contain a
“reasonable time” filing requirement in connection with motions for leave to file a motion for a
new trial when the basis for the motion is newly discovered evidence. The lower courts denied
Bethel’s motion for leave to file a motion for a new trial because of “unreasonable delay”
between the time of discovery of the evidence and the time Bethel filed his motion. The Ohio
Supreme Court explained that although Ohio R. Crim. P. 33 requires a petitioner to show that he
was “unavoidably prevented from the discovery of the evidence upon which he must rely,” the
Rule “does not give a deadline by which a defendant must seek leave to file a motion for a new
trial based on the discovery of new evidence.” Id. at 375. Ultimately, the Ohio Supreme Court
declined to remand the case on this basis, finding that “even assuming arguendo that Bethel
would be entitled to a hearing on his motion for a new trial, the hearing would be an exercise in
futility, because we have concluded that Bethel’s Brady claim, which is the basis of his motion,
is without merit.” Id. at 377.

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B. Exhaustion and Petitioner’s Prior Proceedings
The Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the "AEDPA") requires that state prisoners exhaust available state court remedies on
all federal claims before those claims may be reviewed by district courts on habeas review. 28
U.S.C. 2254(b)(1).

This entails giving state courts “one full opportunity to resolve any

constitutional issues by invoking one complete round of the State’s established appellate review
process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The exhaustion requirement is
satisfied once the petitioner has fairly presented all of his claims to the highest court in the state
in which he was convicted, thus giving the state a full and fair opportunity to rule on those
claims before the petitioner seeks relief in federal court. Id. at 842. Fair presentment requires
the petitioner to raise the same factual and legal basis for the claim in state court that he seeks to
raise in federal habeas corpus. Gray v. Neverland, 518 U.S. 152, 162–63 (1996); Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006).
Federal district courts may not adjudicate a mixed habeas petition that contains both
exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 518–19 (1982) (finding comity
requires that state courts have the first opportunity to review unexhausted claims). District
courts have the discretion, however, to stay habeas proceedings and hold them in abeyance to
allow a petitioner with a mixed petition to return to state court to exhaust his unexhausted claims.
Rhines v. Weber, 544 U.S. 269, 275–76 (2005). A stay is appropriate only when the unexhausted
claims are not plainly meritless, and the petitioner has shown good cause for his failure to
exhaust the claims earlier.

Id. at 277.

Stay-and-abeyance is only available in limited

circumstances at the discretion of the district court and must be conditioned on time limits so as
not to undermine the AEDPA’s objectives of streamlining habeas proceedings and encouraging

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finality. Id. at 276–78. Thus, a stay is inappropriate “if a petitioner engages in abusive litigation
tactics or intentional delay.” Id. at 278.
C. The Instant Motion
On the day Petitioner filed his Reply in support of his motion to hold the proceedings in
abeyance, two important decisions were issued in this District considering and rejecting the
arguments Petitioner raises herein. See Were v. Bobby, 2023 U.S. Dist. LEXIS 44146, 2023 WL
2522837 (S.D. Ohio Mar. 15, 2023) (Watson, D.J); Conway, III v. Warden, 2023 U.S. Dist.
LEXIS 44142, 2023 WL 2527252 (S.D. Ohio Mar. 15, 2023) (Marbley, C.J.)

In denying the

motion to stay in Petitioner’s other death penalty habeas corpus case, Chief Judge Marbley
opined:
The Court rejects Petitioner’s argument that Bethel expands the
scope of remedies available to him and therefore justifies a stay of
these proceedings so that he may return to state court in order to
litigate not only his Brady claim, but his trial counsel
ineffectiveness claims, as well as his claims regarding Attorney
Cicero’s conflict of interest. Bethel considered when a trial court
has subject matter jurisdiction to entertain a successive
postconviction petition in the limited context where the state is
alleged to have withheld material evidence from the accused. With
respect to untimely Criminal Rule 33 motions for leave to file a
motion for a new trial, Bethel made clear that a “reasonable time”
filing requirement is not contained within that Rule. Perhaps this
may present a “more viable” course of action than was previously
thought available, but the hypothetical feasibility of filing such a
motion does not mandate a stay of federal habeas proceedings
when the essential factual and legal basis of Petitioner’s claims
have already been presented to the state courts. For purposes of
exhaustion, it is not necessary for Petitioner to present the same
claim for relief in postconviction and a motion for leave to file a
motion for a new trial, because “[w]here several alternative State
remedies are available to a defendant, exhaustion of one of those
alternatives on a particular issue is all that is necessary. Section
2254 does not require repetitious applications to State courts for
relief.” Keener v. Ridenour, 594 F.2d 581, 584 (6th Cir. 1979)
(citing Brown v. Allen, 344 U.S. 443, 73 (1953)). See also
O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (finding that
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“[a]lthough [the language of § 2254] could be read to effectively
foreclose habeas review by requiring a state prisoner to invoke any
possible avenue of state court review, we have never interpreted
the exhaustion requirement in such a restrictive fashion” and “we
have not interpreted the exhaustion doctrine to require prisoners to
file repetitive petitions”); Francisco v. Gathright, 419 U.S. 59, 6263 (1974) (holding that when a petitioner has previously exhausted
his state remedies, the petitioner is not required to re-exhaust state
remedies due to a change in state law); Roberts v. LaVallee, 389
U.S. 40, 42 (1967) (finding “Congress had not intended to require
repetitious applications to state courts”). In sum, Bethel does not
render Petitioner’s previously exhausted claims unexhausted.
Conway, *22-23 (S.D. Ohio Mar. 15, 2023) (Marbley, C.J.) Judge Watson reached the same
conclusion in Were (n.k.a. Mateen).

Even more recently, Judge Watson reiterated this

determination in Kinley v. Bradshaw, 2023 WL 6057368, *4 (S.D. Oh. Sept, 18, 2023), finding
Bethel did not render Kinley’s exhausted claims unexhausted, because a habeas litigant is not
“required (or permitted, the Court would add) to repetitively present his federal claims to the
state courts once he had done so in one full round of the state’s established procedures”).
Here, this Court stayed these proceedings to permit Petitioner to return to state court in
order to litigate a successive postconviction petition asserting, in part, a Brady claim developed
during the discovery authorized as part of these habeas corpus proceedings. The state courts
determined that Petitioner’s claims were either barred by res judicata or did not meet the
gatekeeping requirements of § 2953.23(A)(1). Because the Ohio Supreme Court declined to
exercise jurisdiction over Petitioner’s appeals, the decisions of the Court of Appeals constitute
the last reasoned state court decisions addressing Petitioner’s successive petitions for
postconviction relief.

See Hughbanks v. Hudson, 2 F.4th 527, 535-36 (6th Cir. 2021) (citing

Barton v. Warden, 786 F.3d 450, 462 (6th Cir. 2015) (per curiam) (holding that a state court’s

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explicit application of a procedural rule to bar the adjudication of a claim on the merits counts as
a “last reasoned opinion”).
Importantly, in determining Petitioner failed to satisfy Ohio’s jurisdictional prerequisites
for consideration of a successor postconviction petition, the state courts assumed, at least in
connection with his Brady and conflict of interest claims, that Petitioner satisfied the
“unavoidably prevented” hurdle of the § 2953.23(A)(1)(a) inquiry. Thus, the main issue in
Bethel – i.e. whether a timeliness or due diligence requirement could be imposed upon a
petitioner in connection with the discovery of Brady material – was not at issue during
Petitioner’s first attempt at filing a successive postconviction petition. The state appellate court’s
decision regarding jurisdiction rested on Petitioner’s inability to demonstrate a potentially
meritorious Brady claim, in order to satisfy the “no reasonable factfinder” requirement of §
2953.23(A)(1)(b).
Petitioner argues that Bethel lowered the “no reasonable factfinder” requirement of §
2953.23(A)(1)(b) by replacing that onerous standard with what he considers a less demanding
standard used to determine Brady materiality – i.e. that “a post-conviction petitioner could meet
the second prong of O.R.C. § 2953.23(A)(1)(b) by demonstrating that a reasonable probability
exists that the outcome of the proceedings would be different as opposed to having to
demonstrate that no reasonable juror would have found the defendant guilty or eligible for the
death penalty.” (ECF No. 313, at PAGEID # 21657.) In support of this argument, Petitioner
cites to another recent decision from the Southern District of Ohio noting that “[a]lthough less
clear, it also appears that the [Bethel] court interpreted the ‘no reasonable factfinder’ requirement
as coterminous with Brady materiality.” Pickens v. Shoop, 2022 WL 2802411 *2 (S.D. Ohio
July 18, 2022) (Sargus, D.J).

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The Court finds Petitioner’s arguments in favor of a stay unpersuasive. Both the factual
and legal basis of the Brady, conflict of interest, and ineffective assistance of trial counsel claims
asserted in the proposed Second Amended Petition were presented to the state courts in the
successive state postconviction petitions. The Court is not persuaded that Petitioner’s claims
have been rendered unexhausted, and the Court disagrees that abeyance is warranted. Although
it is possible the state courts could reconsider Petitioner’s substantive allegations in a renewed
successive petition or motion for a new trial, additional exhaustion is not required here and does
not justify a further delay and stay of these proceedings. See O’Sullivan v. Boerckel, 526 U.S.
838, 844 (1999) (noting the Supreme Court has “not interpreted the exhaustion doctrine to
require prisoners to file repetitive petitions”). And nothing in this Court’s Order denying a stay
prevents Petitioner from pursuing additional relief while these proceedings are underway.
With respect to Petitioner’s argument that Bethel lowers the standard for jurisdiction
under the second prong of § 2953.23(A)(1), the court of appeals, in connection with his first
successive postconviction action, characterized the relevant inquiry as follows:
{¶ 27} Pursuant to R.C. 2953.23(A)(2), appellant must provide
clear and convincing proof that, but for the constitutional error at
trial, no reasonable fact finder would have found the petitioner
guilty of the offenses for which he was convicted. Thus, the issues
with respect to his second petition are whether the new facts
support a Brady violation and, if so, whether the petition
establishes by clear and convincing evidence that, but for the
Brady violation, the outcome of the trial would have been
different.
(ECF No. 231-3, at PAGEID # 16323); State v. Conway, No. 12AP-412, 2013 WL 4679318, *6
(Aug. 29, 2013). The court of appeals first considered whether there was a Brady violation.
With respect to Petitioner’s argument that the state withheld impeachment evidence regarding
witness Ronald Trent’s history of being dishonest as an informant, the court of appeals noted
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Petitioner’s evidence showed only that Trent provided information to the Columbus Police
Department “on one other occasion, ten years before the Dotson murder.” (ECF No. 231-3, at
PAGEID # 16324-16325.)

The document revealed nothing about why the subject of that

investigation was not prosecuted. (Id.) The court also noted the statements Petitioner made to
Trent were tape-recorded and played for the jury.

Therefore, “appellant’s own recorded

statements corroborated Trent’s testimony.” (Id. at PAGEID # 16325.) Regarding the State’s
suppression of evidence regarding Attorney Cicero’s alleged involvement in the plot to kill
Dotson, the court of appeals determined the evidence was not exculpatory. Specifically, the
court noted “our review of the transcripts reveals no facts which would serve to exculpate
appellant from the offenses for which he was convicted.” (Id.) Finally, Petitioner argued the
State withheld impeachment material concerning his involvement as the “trigger man” in the
shooting of Jesse James, which was the alleged motive for the murder of Dotson. The court of
appeals characterized Petitioner’s evidence as ambiguous with limited probative value when
offered for impeachment. (Id. at PAGEID # 16327.) The court of appeals concluded its inquiry
by stating: “In the final analysis, there was no Brady violation associated with the recently
discovered evidence.” (Id.) With respect to Attorney Cicero’s conflict of interest, the state
appellate court concluded that because Cicero was removed at an early stage of the proceedings,
any potential conflict “did not manifest itself in deficient performance at trial.” (Id. at PAGEID
# 16322.) Petitioner also failed to identify any specific information that was disclosed to
investigators in violation of the attorney-client privilege.
At base, the court of appeals did not find evidence of a constitutional violation as part of
its § 2953.23(A)(1) inquiry. Thus, even assuming without deciding that Bethel “interpreted the
‘no reasonable factfinder’ requirement as coterminous with Brady materiality,” Pickens v. Shoop,

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Pickens v. Shoop, 2022 WL 2802411 *2 (S.D. Ohio July 18, 2022) (Sargus, D.J), the court of
appeals did not find materiality upon jurisdictional review of the successive petition.
For the foregoing reasons, the Court DENIES Petitioner’s motion to stay (ECF No. 313.)
Because the Court has denied Petitioner’s motion to stay the proceedings, the Court also
DENIES the motion requesting authorization for his federal habeas counsel to represent him in
state court in connection with the filing of another successive postconviction petition or a motion
for leave to file a motion for a new trial.

September 26, 2023.
s/ Michael R. Merz
United States Magistrate Judge

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