Bays v. Warden Ohio State Penitentiary

Filing 137

REPORT AND RECOMMENDATIONS ON CERTIFICATE OF APPEALABILITY - It is respectfully recommended that a certificate of appealability be issued on Ground Five but otherwise denied. Objections to R&R due by 11/19/2012. Signed by Magistrate Judge Michael R Merz on 10/31/2012. (kpf1)

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

Case No. 3:08-cv-076
:

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vsWARDEN, Ohio State Penitentiary,
:
Respondent.

REPORT AND RECOMMENDATIONS ON CERTIFICATE OF
APPEALABILITY
This capital habeas corpus case is before the Court on Petitioner=s Motion for a
Certificate of Appealability (Doc. No. 128). The Warden has filed a Response in Opposition
(Doc. No. 133) and Petitioner has filed a Reply in support (Doc. No. 135).
Bays’ original Petition pled eleven Grounds for Relief. Ground Nine and portions of
Ground Four were dismissed as procedurally defaulted; Ground Ten was dismissed as not yet
ripe (Entry and Order, Doc. No. 34). On a Report and Recommendations to that effect (the
“Report,” Doc. No. 109), Judge Rose dismissed the remaining Grounds (Entry and Order, Doc.
No. 134). Over the Warden’s objections, Bays filed an Amended Petition on May 11, 2012,
adding two lethal injection claims which have not yet been addressed on the merits (Doc. No.
122) and are not before the Court on the instant Motion.
Bays seeks a certificate of appealability on all his Grounds for Relief except Ground Ten
and on the denial of his motion to reconvene the evidentiary hearing. The Warden opposes any
certificate of appealability.
1

Standard for Certificate of Appealability
As provided in 28 U.S.C. § 2253, a petitioner seeking to appeal an adverse ruling in the
district court on a petition for writ of habeas corpus or on a § 2255 motion to vacate must obtain
a certificate of appealability before proceeding. The statute contemplates issuance by a circuit
judge, but Rule 11(a) of the Rules Governing § 2254 cases provides:
The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant. Before
entering the final order, the court may direct the parties to submit
arguments on whether a certificate should issue. If the court issues
a certificate, the court must state the specific issue or issues that
satisfy the showing required by 28 U.S.C. § 2253(c)(2). If the
court denies a certificate, the parties may not appeal the denial but
may seek a certificate from the court of appeals under Federal Rule
of Appellate Procedure 22. A motion to reconsider a denial does
not extend the time to appeal.
The Rule codifies prior practice in the Sixth Circuit. Lyons v. Ohio Adult Parole Authority, 105
F.3d 1063, 1073 (6th Cir. 1997), overruled in part on other grounds by Lindh v. Murphy, 521
U.S. 320 (1997); Kincade v. Sparkman, 117 F.3d 949, 953 (6th Cir. 1997)(adopting analysis in
Lozada v. United States, 107 F.3d 1011, 1017 (2nd Cir. 1997).
To obtain a certificate of appealability, a petitioner must show at least that “jurists of
reason would find it debatable whether the petition states a valid claim of denial of a
constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). That is, it must find that
reasonable jurists would find the district court’s assessment of the petitioner’s constitutional
claims debatable or wrong or because they warrant encouragement to proceed further. Banks v.
Dretke, 540 U.S. 668, 705 (2004); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). If the district
court dismisses the petition on procedural grounds without reaching the constitutional questions,
the petitioner must also show that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling. Slack, 529 U.S. at 484. The procedural issue should
2

be decided first so as to avoid unnecessary constitutional rulings. Slack, 529 U.S. at 485, citing
Ashwander v. TVA, 297 U.S. 288, 347 (1936)(Brandeis, J., concurring). The first part of this test
is equivalent to making a substantial showing of the denial of a constitutional right, including
showing that reasonable jurists could debate whether the petition should have been resolved in a
different manner or that the issues presented were “adequate to deserve encouragement to
proceed further.” Slack, 529 U.S. at 484 (2000), quoting Barefoot v. Estelle, 463 U.S. 880, 893
(1983). The relevant holding in Slack is as follows:
[W]hen the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying constitutional
claim, a COA should issue (and an appeal of the district court's
order may be taken) if the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right, and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.
529 U.S. at 484.
The standard is higher than the absence of frivolity required to permit an appeal to
proceed in forma pauperis. Barefoot, 463 U.S. at 893.
. . . [O]bviously the petitioner need not show that he should prevail
on the merits... Rather, he must demonstrate that the issues are
debatable among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are 'adequate
to deserve encouragement to proceed further.'
Id. n.4; accord, Miller-El, 537 U.S. at 330 (citations omitted). A certificate of appealability is
not to be issued pro forma or as a matter of course. Id. at 337. Rather, the district and appellate
courts must differentiate between those appeals deserving attention and those which plainly do
not. Id. A blanket certificate of appealability for all claims is improper, even in a capital case.
Frazier v. Huffman, 343 F.3d 780, 788 (6th Cir. 2003), citing Porterfield v. Bell, 258 F.3d 484
(6th Cir. 2001).
3

Ground One

In his first Ground for Relief, Bays claimed he received ineffective assistance of trial
counsel in several respects in the way his counsel handled the motion to suppress his confession.
The Report recommended rejecting this claim because the underlying substantive claim, raised
as Ground Five for Relief, had no merit and Bays could therefore not show prejudice resulting
from his counsels’ conduct as require by Strickland v. Washington, 499 U.S. 688 (1984)(Report,
Doc. No. 109, PageID 1576).
Bays objected to that recommendation (Objections, Doc. No. 127, PageID 2081-2082)
and incorporates his objections in his Motion for Certificate of Appealability (Doc. No. 128,
PageID 2132-2133). One of those objections is that the “Magistrate Judge failed to consider all
of the evidence that was submitted in the state post-conviction proceedings in support of this
claim and instead limited his inquiry to the record that was before the Ohio Supreme Court on
direct review.” (Motion, Doc. No. 128, PageID 2132). That is inaccurate. In the Report, the
Magistrate Judge quoted at length the summary of the post-conviction evidence as reported in the
court of appeals’ opinion affirming denial of post-conviction relief. (See Report, Doc. No. 109,
PageID 1575-1576, quoting State v. Bays, No. 2003 CA 4, 2003 WL 21419173 at ¶ 2 (Ohio App.
2nd Dist. June 20, 2003)).
The second objection is that “AEDPA is inapplicable to Strickland’s prejudice
requirement in Bays’ case because no Ohio state court has ever considered the cumulative
prejudice resulting from all of trial counsel’s errors.” (Motion, Doc. No. 128, PageID 21322133.) As authority for the proposition that the state courts must consider cumulative prejudice
resulting from all of trial counsels’ errors, Bays cites Cargle v. Mullin, 317 F.3d 1196, 1212 (10th

4

Cir. 2003), which in turn relies on Strickland’s “repeatedly stating prejudice inquiry in aggregate
terms.” The full opinion of the Second District Court of Appeals on the ineffective assistance
claim is as follows:
Bays claims that trial counsel was ineffective in addressing several
issues at his suppression hearing and at trial: his drug use and
borderline intellect as affecting the voluntariness of his confession,
his drug use shortly before his confession, coercion of his wife to
get him to confess, and the credibility of an inmate who testified
against him. General evidence regarding Bays' drug use and
borderline intellect has been thoroughly addressed in prior
proceedings. We will briefly address each of the other issues raised
under this assignment of error.
At the hearing on the petition for postconviction relief, Bays'
stepson, Ryan Scott Pleukharp, testified that he had seen Bays
using crack cocaine in the bathroom at their house just before the
police arrived to take him in for questioning on November 19,
1993. Bays confessed to Weaver's murder a short time later. Bays'
wife partially corroborated Pleukharp's testimony by testifying that
Pleukharp had told her of his observation the next day. Martha
Bays also testified that she had later found drug paraphernalia on
the ledge above the bathroom door. Martha Bays claimed that she
had relayed all of this information to Bays' attorney at their first
meeting but that he had not used it at the suppression hearing.
The trial court found the testimony of Pleukharp and Martha Bays
to be lacking in credibility, and, in our view, this conclusion was a
reasonable one. On cross-examination, Martha Bays appeared to
concede that, in an unrelated case, she had encouraged her son to
deny involvement in a crime to which he had already confessed.
Moreover, it had been determined in earlier proceedings in this
case that the police had not engaged in coercive conduct and that
any alleged impairment on Bays' part was not apparent to the
officers. See Bays, 87 Ohio St.3d 15, 23, 1999–Ohio–216. Even if
Bays had used crack cocaine at the time alleged, the voluntariness
of his confession was not implicated if the police officers did not
know of and take advantage of that fact. State v. Smith, 80 Ohio
St.3d 89, 112, 1997–Ohio–355, citing Colorado v. Connelly
(1986), 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473.
Bays also offered testimony from his wife that police officers had
encouraged her to convince Bays to confess in exchange for an
eight-year sentence. As discussed supra, the trial court could have
5

reasonably concluded that Martha Bays' testimony lacked
credibility. However, even if her testimony had been credible,
Martha Bays conceded that, although she had told her husband to
tell the police the truth, she had never told him of the alleged offer
of leniency prior to his confession. As such, there is no likelihood
that this evidence would have affected the outcome of a
suppression hearing on the voluntariness of Bays' confession, and
counsel was not ineffective in failing to present it.
Finally, Bays contends that his attorney was ineffective in failing
to present the testimony of Richard Henson, Jr. about a fellow
inmate, Larry Adkins. Adkins had testified at Bays' trial that Bays
had admitted to Adkins his involvement in Weaver's murder. At
the evidentiary hearing, Henson testified that Adkins had talked
with him about his plan to get a deal from the state in exchange for
testifying against Bays. Henson further testified that he had not
been interviewed by Bays' attorney prior to trial and, although
present at the courthouse, had not been called to testify on Bays'
behalf. Even if we assume, for the sake of argument, that Bays'
attorney should have interviewed Henson and did not do so, we
would nonetheless conclude that counsel did not act ineffectively.
Henson's testimony did not suggest that Adkins' statements were
untruthful, only that he hoped to get a favorable deal from
revealing his conversations with Bays. In other words, Henson's
testimony related to Adkins' motivation in coming forward but not
the truthfulness of his statements. As such, we are confident that
Henson's testimony would not have affected the outcome of the
trial.
The first assignment of error is overruled.
Bays, 2003 WL 2141913, ¶¶ 7-12. To summarize, the court of appeals found no deficient
performance in failing to offer Martha Bays and Ryan Pleukarp’s testimony because it was not
credible and no prejudice from failing to offer Richard Henson’s testimony because it would not
have affect the outcome, assuming it was deficient performance not to interview Henson. The
court of appeals found it unnecessary to re-discuss claims of ineffective assistance of trial
counsel raised on direct appeal, but were clearly aware of them and rendered a final decision on
the merits of the ineffective assistance of trial counsel claim taken as a whole.
Bays cites only Tenth Circuit law for the proposition that prejudice from counsels’
6

deficiencies must be considered cumulatively. Assuming that the Sixth Circuit would apply the
same standard, there is no reason to issue a certificate of appealability on the First Ground for
Relief because a fair reading of the Second District Court of Appeals opinion shows that it did
consider all the claims of ineffective assistance of trial counsel together.

Ground Six1

In his Sixth Ground for Relief, Bays contends his jury waiver was constitutionally invalid
because it was not knowing, intelligent, and voluntary. In recommending dismissal of this claim,
the Report notes that it was raised on direct appeal and rejected by the Ohio Supreme Court in a
decision which the Report found was neither contrary to nor an objectively unreasonable
application of clearly established Supreme Court precedent (Report, Doc. No. 109, PageID 16011610.)
Bays objected to this conclusion on two bases which are incorporated in his Motion (Doc.
No. 128, PageID 2133-2134). His first objection is that the Report only addressed the jury
waiver decision of the Ohio Supreme Court and not the separate decision made by the court of
appeals on post-conviction (Objections, Doc. No. 127, PageID 2089-2091.)
It is correct that Bays raised his jury waiver claim in his petition for post-conviction
relief. On appeal from dismissal of that claim, the court of appeals held:
We note that Bays advances this same argument in his Fourth
Assignment of Error in his direct appeal from his conviction and
sentence-Montgomery App. No. 96-CA-118. Virtually his entire
argument relies on evidence in the record, which permits this court
to decide the issue in the direct appeal. The only evidence dehors
the record regarding this matter is an affidavit signed by Bays
1

Petitioner’s Grounds for Relief are addressed in the order which Petitioner uses in his Motion for Certificate of
Appealbility.

7

attached to his motion to amend the petition for post-conviction
relief.
State v. Bays, No. 96-CA-118, 1998 WL 31514 *3 (Ohio App. 2nd Dist. Jan. 30, 1998). Bays
asserts this was an unreasonable determination of the facts because Bays also relied on the
affidavit of his wife Martha to support his jury waiver claim. The referenced affidavit is six
pages single-spaced and covers topics from Martha Bays’ mother’s emotional problems (Bays
Apx. Vol. 8, page 125, ¶ 7) to her own adultery with Bays while she was still married to her first
husband (Id. at ¶ 15) to her interaction with the detectives when they first came to question Bays
about the instant murder (Id. at ¶ 33). Out of these six pages, the sole paragraph which Bays
now contends should have resulted in an evidentiary hearing on his post-conviction petition is ¶
29:
I talked to Rick‘s lawyer and told Rick‘s lawyer at the beginning
that Rick was very slow. This occurred after Rick would call me
after his lawyer had talked to him, and didn‘t understand what his
lawyer was saying. I would have to try to explain to Rick what it
was his lawyer was saying. When I explained this to Mr. Keller,
Mr. Keller seemed only irritated at the fact that Rick needed to be
explained something when he had tried to explain something to
Rick on several occasions.
(Bays Apx. Vol. 8, page 127.) Bays’ counsel interpret this paragraph as “clearly call[ing] the
legitimacy of Bays’ jury waiver into question . . .” (Traverse, Doc. No. 108, PageID 1529). This
Court disagress with that characterization. Nothing in this paragraph or elsewhere in the Martha
Bays’ Affidavit discusses the jury waiver or the jury trial right at all. While Martha Bays’
observations about her husband’s slowness might be relevant to whether he understood the jury
waiver, nothing in the Affidavit suggests ¶ 29 was offered for that purpose. Therefore the
determination of the Second District Court of Appeals that this was not evidence on the jury
waiver validity question is not an unreasonable determination of the facts in light of the evidence

8

presented. While the Report should have contained the analysis just offered, reasonable jurists
would not find the dismissal of the Sixth Ground for Relief debatable either because the analysis
was omitted from the Report as adopted or on the merits of this claim.
Bays also argues (Motion, Doc. No. 128, PageID 2134, n. 2) that the Ohio Supreme
Court’s disposition of the jury waiver claim on direct appeal was both an objectively
unreasonable application of Supreme Court precedent and based on an unreasonable
determination of the facts. He cites no authority, but references his argument in the Traverse,
Doc. No. 108, at PageID 1523-1527. At those pages of the Traverse, Bays cites Adams v. United
States ex rel McCann, 317 U.S. 269 (1942); and Irvin v. Dowd, 366 U.S. 717 (1961).2
Irvin v. Dowd is cited for the general proposition that “[i]mpartiality is central to the right
of trial by jury.” In asserting his jury waiver was not knowing and intelligent, Bays had claimed
that he did not understand he was entitled to a fair and impartial jury and the Ohio Supreme
Court, in rejecting this claim, had held he did not have a right to be specifically told that he had a
right to an impartial jury. Irvin did not involve a jury waiver3 and the Supreme Court offered no
opinion therein about what was required for a valid jury waiver. In Adams the Supreme Court
upheld the defendant’s uncounseled jury waiver. While asserting the general rule that a waiver
had to be “freely and intelligently made,” the Court made no ruling on what must be shown to
establish those facts. The holding of Adams is that a layman can validly waive a jury without the
assistance of counsel and Bays has made no argument about how the Ohio Supreme Court
decision in this case is an unreasonable application of that holding.
As best this Court understands it, Bays’ argument that the Ohio Supreme Court made an

2

He also cites Williams v. Taylor, 529 U.S. 362, 410-11 (2000), for the general law on the meaning of
“unreasonable application” in 28 U.S.C. § 2254(d).
3
Irvin’s central ruling was that adverse publicity could be sufficiently great to require a change of venue to insure
impartiality.

9

unreasonable determination of the facts from the evidence is directed to that court’s conclusion
that Bays’ following his attorneys’ advice to waive a jury somehow proves the act was
involuntary (See Traverse, Doc. No. 108, PageID 1523-1524). The Ohio Supreme Court quite
reasonably concluded that following an experienced attorney’s advice does not prove one is
acting involuntarily. There was no evidence that the attorneys made any threats or promises to
Bays to get him to waive a jury.
Regarding whether the waiver was knowing and intelligent, Bays argues “[a] jury waiver
obviously cannot be knowing and intelligent if the defendant believes that the state is free to try
him before a panel of jurors who are predisposed to convict.” (Traverse, Doc. No. 108, PageID
1524-1525). But where is the proof that Bays believed a jury could be biased?

Refusing to

make that finding on the record before them was not an objectively unreasonable determination
of the facts by the Ohio Supreme Court.
Bays has not demonstrated that reasonable jurists would disagree with this Court’s
decision on the Sixth Ground for Relief and he should be denied a certificate of appealability on
Ground Six.

Ground Two

In his Second Ground for Relief, Bays claims his attorneys provided ineffective
assistance of trial counsel when they advised him to waive a jury trial and then failed to ensure
that the waiver was knowing, intelligent, and voluntary. The Report recommended denial of this
Ground for Relief on the basis that there was no prejudice from the advice, if it was deficient,
because the waiver itself was knowing, intelligent, and voluntary as held with respect to Ground

10

Six.
In his Motion, Bays notes that the Report applied “Strickland’s traditional prejudice
inquiry to this claim,” in contrast to the standards applied in Miller v. Dormine, 310 F.3d 600 (8th
Cir. 2002), and Torres v. Small, No. 00-10388, 2008 WL 1817243 (C.D. Cal. Apr. 21,
2008)(Doc. No. 128, PageID 2134). He further notes that the Sixth Circuit has applied the
Strickland prejudice standard to similar claims, but asserts the decisions do not squarely address
the issue and thus en banc review would not be required. Id. at PageID 2135. In Miller, the
Eighth Circuit found a structural error occurred when the petitioner was tried without a jury as a
result of an attorney’s constitutionally deficient performance. Miller is inapposite because in that
case the jury waiver was based entirely on statements by counsel and without any colloquy with
the defendant; Miller’s assent to the waiver was presumed from his silence.
In Spytma v. Howes, 313 F.3d 363, 372 (6th Cir. 2002), the court held that an attorney’s
performance in failing to raise a jury waiver issue on appeal was subject to harmless error
analysis. In Jells v. Mitchell, 538 F.3d 478 (6th Cir. 2008), the Sixth Circuit found that there was
no deficient performance in advising a capital defendant to waive a jury and that even if the
performance had been deficient, petitioner would have to show prejudice as required by
Strickland, i.e., that there was a reasonable probability the outcome would have been different.

Id. at 510-511. Jells appears to this Court to be directly on point and controlling precedent
against Bays’ position.

Therefore reasonable jurists would not disagree with this Court’s

disposition of Ground Two. The Court of Appeals, should it wish to consider reversing Jells on
this point, is itself empowered to issue a certificate of appealability, but this Court should not do
so.
Bays’ counsel assert that it would not be ethically improper for them to seek reversal of

11

Jells on appeal. The Magistrate Judge takes no position on that point, but notes that it does not
constitute any part of the standard for granting a certificate of appealability.

Ground Three

In his Third Ground for Relief, Bays claims his trial counsel were ineffective for (1)
failure to introduce testimony of Richard Henson, Jr., to rebut the testimony of jailhouse
informant Larry Adkins and (2) failure to introduce testimony from James Dalton, Hope Purdue,
and Carrie Moore. This claim was raised in post conviction and the court of appeals remanded
for an evidentiary hearing on this evidence. Bays, 1998 WL 31514 at *7. As the Report notes,
Bays failed to introduce any evidence regarding Dalton, Purdue, or Moore on remand and also
did not raise any claims relating to them on appeal to either the court of appeals or the Ohio
Supreme Court. Because respondent had not raised a procedural default defense on this subclaim, the Report reviewed it de novo.
As to the omitted Richard Henson testimony, the court of appeals held, on the second
post-conviction appeal, that it was not deficient performance to fail to call Henson. Bays, 2003
WL 21419173 at *2-3. Given the content of what Henson would have testified to, the decision
of the court of appeals was not an objectively unreasonable application of Strickland. Bays has
offered no authority for the proposition that reasonable jurists would disagree with this
conclusion.
As with Ground One, Bays asserts that the Report applies the wrong standard in failing to
consider the cumulative prejudice from all of counsel's errors. For the reasons given with respect
to the First Ground for Relief, that standard has not been adopted by the Sixth Circuit as yet and,

12

in any event, the Ohio Court of Appeals' decision on the second post-conviction relief appeal is
correctly read as evaluating all the prejudice cumulatively, to the extent any errors of counsel
were found.
Bays should be denied a certificate of appealability on his Third Ground for Relief.

Ground Four
In his Fourth Ground for Relief, Bays asserts his trial counsel were ineffective in their conduct of
the mitigation phase of the trial.
The Magistrate Judge found all of this claim procedurally defaulted except for the claim
of failure adequately to investigate Bays' family history and background (Report and
Recommendations, Doc. No. 23). Judge Rose adopted this Report over Petitioner's objections
(Entry and Order, Doc. No. 34).
On the merits of the remaining failure to investigate claim, the Report concluded that the
decision of the Ohio Court of Appeals on the first post-conviction relief appeal finding no
deficient performance in this regard was neither contrary to nor an objectively unreasonable
application of clearly established federal law (Report, Doc. No. 109, PageID 1590). As noted in
the Report, the three-judge panel heard the substance of all the mitigation evidence which Bays
claimed in post-conviction had been omitted; most of the mitigation evidence was presented by
way of expert testimony of three psychologists who were able to interpret for the panel the "raw
data" of facts about Bays' childhood injuries and limited learning ability. Bays has not shown
how reasonable jurists could differ with the conclusion that presenting the evidence in this way
was a prudent strategic choice. No certificate of appealability should issue on the Fourth Ground
for Relief.

13

Ground Five

In his Fifth Ground for Relief, Bays claims his constitutional rights were violated when
his inculpatory statements to the police were admitted against him at trial. The Report
recommended finding that the Ohio Supreme Court's decision on this ground for Relief was
entitled to deference under 28 U.S.C. § 2254(d)(l)(Report, Doc. No. 109, PageID 1590-1601.)
While the Magistrate Judge remains persuaded that the analysis by the trial judge and the
Ohio Supreme Court is correct, reasonable jurists could disagree and a certificate of appealability
should issue on the Fifth Ground for Relief.

Ground Seven

In his Seventh Ground for Relief, Bays contends that, if his confession is found to be
inadmissible (Ground Five), then the remaining evidence is constitutionally insufficient for
conviction under Jackson v. Virginia, 443 U.S. 307 (1979). The Ohio Supreme Court declined to
consider this question, raised as the ninth proposition of law, on grounds of mootness, since it
had held the confession was admissible. State v. Bays, 87 Ohio St. 3d 15,24 (1999).
In his Motion for Certificate of Appealability, Bays acknowledges Supreme Court
precedent establishing that inadmissible evidence must be considered in determining whether the
Jackson standard has been satisfied (Motion, Doc. No. 128, PageID 2139, citing McDaniel v.
Brown, 568 U.S. 20 (2010), and Lockhart v. Nelson, 488 U.S. 33 (1988)). Bays' counsel believe
McDaniel and Lockhart should be overruled and assert they have a good faith basis within the
bounds of required professional conduct to make that argument, based on Justice Marshall's

14

dissent in Nelson (Objections, Doc. No. 127, PageID 2116; Motion, Doc. No. 128, PageID
2139).
Reasonable jurists could not disagree that, if the confession is admissible, there is
sufficient evidence to convict. Reasonable jurists also could not disagree that courts are to apply
Jackson considering evidence ruled inadmissible, as held in McDaniel and Nelson. If the Sixth
Circuit finds the confession inadmissible, it can itself conduct the Jackson analysis under the
McDaniel and Nelson standards. This will leave the case in a posture such that, if the United
States Supreme Court grants certiorari on the confession issue, it can also reconsider McDaniel
and Nelson. But reasonable jurists could not disagree with this Court’s disposition of the Seventh
Ground for Relief on the law as it now stands, so no certificate of appealability should issue on
this Ground for Relief.

Ground Eight

In his Eighth Ground for Relief, Bays asserts he was denied his right to a fair trial when
the trial court refused to compel disclosure of the confidential informant who told police where
Bays had discarded evidence. The Ohio Supreme Court rejected this claim on the merits when it
was raised on direct appeal as the sixth proposition of law. State v. Bays, 87 Ohio St. 3d 15, 2426 (1999). The Report recommended dismissing the claim because the Ohio Supreme Court
decision was neither contrary to nor an objectively unreasonable application of clearly
established federal law, particularly Roviaro v. United States, 353 U.S. 53 (1957).
The informant in question made an anonymous call to Detective Savage, the investigator
who also took Bays' inculpatory statement. Bays alleged that the information given was so

15

detailed that the informant must have been an accomplice or eyewitness, but the Ohio Supreme
Court noted that in neither his statement to Detective Savage or to the jailhouse informant, Larry
Adkins, had Bays ever mentioned an accomplice and the crime took place inside Mr. Weaver's
home where he and Bays were alone.
Bays also speculated that the information may have come from a family member, but
since all the Bays family were collaborating in the defense, receipt of such information by the
police would be "the functional equivalent of a state agent infiltrating the defense team."
(Objections, Doc. No. 127, PageID 2120). This is, of course, rank speculation.
Bays argues this Court’s conclusion on this Ground for Relief is debatable among
reasonable jurists on the basis of Wilson v. O’Dea, 1994 U.S. App. LEXIS 673 (6th Cir. Jan. 10,
1994). In that case, the circuit court explained:
The Supreme Court has held that the government has a "privilege
to withhold from disclosure the identity of persons who furnish
information of violations of law to officers charged with
enforcement of that law." Roviaro v. United States, 353 U.S. 53,
59, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957). The privilege furthers
the public interest in effective law enforcement, recognizes the
obligations of citizens to communicate knowledge of the
commission of crimes to law enforcement officials, and
encourages such obligations by preserving the anonymity of such
informants. United States v. Whitley, 734 F.2d 1129, 1137 (6th Cir.
1984). The privilege is not absolute, however. It '"is limited where
the disclosure of an informer's identity, or of the contents of [an
informer's] communication, is relevant and helpful to the defense
of an accused, or is essential to a fair determination of a cause."' ld.
(quoting Roviaro, 353 U.S. at 60).
There is no fixed rule regarding disclosure. United States v. Moore,
954 F.2d 379, 381 (6th Cir. 1992). Rather, on a case-by-case basis,
the courts must '"balance the public interest in protecting the flow
of information against the individual's right to prepare a defense."'
Id. (quoting Roviaro, 353 U.S. at 62). "In balancing those
competing interests in the context of a criminal case, courts must
consider 'the crime charged, the possible defenses, the possible
16

significance of the informer's testimony, and other relevant
factors."' Holman v. Cayce, 873 F.2d 944, 946 (6th Cir. 1989)
(quoting Roviaro, 353 U.S. at 62).
The identity of "an informant must be disclosed only upon a
showing by the defendant that disclosure is essential to a fair trial."
Moore, 954 F.2d at 381. Where the informant is not a participant
or witness to the events underlying the defendant's potential
criminal liability, the balance is heavily in favor of nondisclosure.
Holman, 873 F.2d at 946 (citing United States v. Sharp, 778 F.2d
1182, 1186 n.2 (6th Cir. 1985), cert. denied, 475 U.S. 1030, 89 L.
Ed. 2d 342, 106 S. Ct. 1234 (1986)). In cases involving "tipsters"
who merely convey information to the government but neither
witness nor participate in the offense, disclosure is generally not
material to the outcome of the case and is therefore not required.
United States v. Harrington, 951 F.2d 876, 878 (8th Cir. 1991);
Phillips v. Cardwell, 482 F.2d 1348, 1349-50 (6th Cir. 1973)(per
curiam). Where the informant is not a participant or witness to the
offense, disclosure occurs only in exceptional circumstances where
the defendant demonstrates "some concrete circumstance that
might justify overriding both the public interest in encouraging the
flow of information, and the informant's private interest in his or
her own safety." United States v. Martinez, 922 F.2d 914, 921 (1st
Cir. 1991).

Id. at *9-12. In Wilson, the Sixth Circuit reversed the trial court based on a failure to disclose where
the informant had important exculpatory testimony to give. There is no such showing in this case. A
certificate of appealability should be denied on the Eighth Ground for Relief.

Ground Nine

In his Ninth Ground for Relief, Bays asserts that "[t]he state appellate courts' arbitrary
refusal to review life sentences imposed in similar cases as part of a statutorily mandated
proportionality review denied Bays due process of law under the Fourteenth Amendment."
(Petition, Doc. No. 16.) On the Warden's Motion, the Magistrate Judge recommended that this
Ground for Relief be dismissed as procedurally defaulted (Report, Doc. No. 23, PageID 24517

247). District Judge Rose adopted this recommendation over Bays' objections (Doc. No. 34).
Because the law on what is required to "fairly present" a claim to the state courts is not rigidly
established, the Magistrate Judges agrees that reasonable jurists could dispute whether that
standard was met in this case.
However, reasonable jurists would not dispute that Bays is not entitled to relief on the
merits of this claim. State courts are not constitutionally required to conduct a proportionality
analysis when imposing or affirming a capital sentence. Pulley v. Harris, 465 U.S. 37, 45
(1984).
Therefore no certificate of appealability should be issued on the Ninth Ground for Relief.

Ground Eleven

In his Eleventh Ground for Relief, Bays argues that the cumulative effect of the constitutional
errors shown in this case violated his constitutional rights. The Report recommended denial of
this Ground because there were no constitutional errors to accumulate and the Sixth Circuit has
not recognized this cumulative error claim for relief (Report, Doc. No. 109, PageID 1616).
In seeking a certificate of appealability on this Ground for Relief, Petitioner argues that
other circuits have recognized such a claim which must mean that reasonable jurists disagree.
He also asserts that "a certificate of appealability must be granted if other federal courts have
accepted the legal argument advocated by the petitioner." (Motion, Doc. No. 128, PageID 2146,
citing Lave v. Dretke, 416 F.3d 372 (5th Cir. 2005). Petitioner's argument substantially overstates
the holding in Lave. There the Fifth Circuit found that three circuits had declined to hold
Crawford v. Washington, 541 U.S. 36 (2004), applied retroactively while one (the Ninth) had

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found the case retroactively applicable. The Fifth Circuit was considering the question of
appealability without the benefit of a lower court opinion and held merely that, on this particular
issue, reasonable jurists had disagreed. It did not purport to interpret the AEDPA to the effect
that a district court "must grant" appealability where there is a circuit split. This was in a case
where the Fifth Circuit had not yet decided the underlying issue.
In the instant case, the Sixth Circuit has decided the underlying issue. This Court should
therefore deny a certificate of appealability on Ground Eleven. The Sixth Circuit will of course
be at liberty to grant the certificate if it wishes to reconsider its position in light of that taken by
other circuits, but our duty is to follow the circuit precedent.

Denial of Reopening the Evidentiary Hearing

The Court had granted an evidentiary hearing on the First, Second, and Sixth Grounds for
Relief. The hearing commenced on January 20, 2011, and was recessed to allow Petitioner to
depose Dr. Barbara Bergman, a psychologist. Before the hearing could be reconvened, the
Supreme Court decided Cullen v. Pinholster, 563 U.S. _ , 131 S.Ct. 1388 (2011), in which it held
that a federal court's review of a state court decision under 28 U.S.C. § 2254(d)(l) is strictly
limited to "review of the state court record," and that evidence acquired through use of an
evidentiary hearing may not be considered. Id. at 1399. Based on Pinholster, the Court declined
to consider any evidence already taken at the evidentiary hearing and refused to reconvene the
hearing.
Petitioner seeks a certificate of appealability on whether that ruling was in error. He
asserts that this Court's determination that the state court decisions on Grounds One, Two, and

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Six were not objectively unreasonable applications of Supreme Court law is erroneous and
therefore Pinholster does not bar an evidentiary hearing. The Magistrate Judge agrees that if the
Sixth Circuit grants a certificate of appealability on any of these three Grounds for Relief and
reverses the 2254(d)(1) holding, it should also allow an appeal on the Pinholster question. It will
then be in a position to weigh the evidence itself or remand for consideration by this Court.
The Magistrate Judge does not agree, however, with Bays' assertion that "Pinholster is
only applicable to claims under § 22554(d)(l); [and] the decision does not preclude an
evidentiary hearing when a petitioner is challenging a state court's subsidiary factual findings
under§ 2254(d)(2)" (Motion, Doc. No. 128, PageID 2147). In Pinholster itself, the Court made
clear that review under § 2254( d)(2) is limited to the evidence presented in the state court
proceedings. Pinholster, 131 S. Ct. 1388, 1419, n. 7. Bays points to no post-Pinholster
"reasonable jurist" who disputes this point.

Conclusion

In accordance with the foregoing analysis, it is respectfully recommended that a
certificate of appealability be issued on Ground Five but otherwise denied.
October 31, 2012.
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(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
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listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. A party may respond to
another party’s objections within fourteen days after being served with a copy thereof. Failure to
make objections in accordance with this procedure may forfeit rights on appeal. See, United
States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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