Gapen v. Bobby

Filing 173

SUPPLEMENTAL OPINION ON PETITIONER'S MOTION FOR LEAVE TO FILE A THIRD AMENDED PETITION. Signed by Magistrate Judge Michael R Merz on 1/8/2013. (kpf1)

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

:

Case No. 3:08-cv-280

- vs District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
DAVID BOBBY, Warden,
Respondent.

:

SUPPLEMENTAL OPINION ON PETITIONER’S MOTION FOR
LEAVE TO FILE A THIRD AMENDED PETITION
This capital habeas corpus case is before the Court on Petitioner Gapen’s Objections
(Doc. No. 170) to the Magistrate Judge’s Decision and Order Granting in Part and Denying in
Part Petitioner’s Motion for Leave to File a Third Amended Petition (the “Decision and Order,”
Doc. No. 169). The Warden has filed a Response to the Objections (Doc. No. 172) and District
Judge Rice has recommitted the matter for additional analysis.
Petitioner’s Motion for Leave to File a Third Amended Petition (Doc. No. 148) sought to
add six new grounds for relief. The Magistrate Judge granted1 the Motion as to five of those
grounds (Grounds 26, 27, 28, 28, and 30), but denied the Motion as to Ground 31. The Warden
filed no objections as to adding Grounds 26, 27, 28, 29, and 30 (although he had opposed the
Motion as to those Grounds), so that leave to file as to those five Grounds is final, as noted by
Judge Rice in the Recommittal Order (Doc. No. 171, PageID 4697).
1

A motion to amend under Fed. R. Civ. P. 15 is a nondispositive pretrial motion on which a Magistrate Judge may
enter a ruling, as opposed to recommending a disposition.

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Gapen’s present Objections concern only his proposed thirty-first Ground for Relief:
Thirty-First Ground for Relief: Gapen’s rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution were violated when the jurors violated the trial court’s
instructions regarding the handling of physical evidence during
deliberations.
606. Gapen’s constitutional rights were violated when the jurors
violated the trial court’s instructions relating to physical evidence.
607. The trial court instructed the jury to not open, during their
deliberations, several containers or bags in which several items of
bloody, inflammatory evidence were sealed.
608. Prior to guilt phase deliberations, the trial court gave the jury
the following instruction:
THE COURT: One admonition which I almost
overlooked, and I’m glad that it was mentioned to
me. There are several bags here that are marked
biohazard. The ones that you are permitted to open
are on the top. All the ones you are not permitted to
open with biohazard on them are in the bottom rack
of this thing, (cart) If you do see a bag, and it says
you may open, you may do so, if you wish to do so
as part of it. You have seen all these exhibits and
know what they are presumably, but to look at
them, you may. The ones in the biohazard bags that
are marked “do not open” are there. They are
numbered so that if you can recall the numbers and
the like, that information will be available to you for
consideration, but you are not to open those bags.
The other ones, even though they are marked
biohazard, you may open them if you wish. I would
recommend rubber gloves. Rubber gloves will be
supplied for you in the jury room. Thank you.
(ROW Apx. Vol. 17 at 3873-74.)
609. Many of the items of evidence were never opened or removed
from their sealed containers during the trial or presented in open
court in any form other than as they appeared in sealed bags or
containers. (See, e.g., ROW Tr. Vol. 12, 2823-40, 2921.)
610. The record clearly indicates that the jurors nevertheless
opened some of the bags that were supposed to stay sealed,
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removed the evidence inside, and examined it. (See ROW Tr. Vol.
15 at 3470-80 and compare with Exhibit D, Flournoy Deposition
II, May 31, 2012, p. 29-31, 33-38, 43.)
611. “‘[O]ur system of trial by jury is premised on the assumption
that jurors will scrupulously follow the court’s instruction[.]’”
United States v. Riccio, 529 F.3d 40, 45-46 (1st Cir. 2008) (quoting
United States v. Owens, 167 F.3d 739 (1st Cir. 1999)). Gapen had
a constitutional due process right to be tried by a panel of jurors
who would follow the court’s instructions, and his rights were
violated when the jurors failed to do so.
612. Also, the jury’s actions changed the essential nature of the
evidence from that which was presented at trial to that which the
jury considered. Evidence that appeared before the jury only as
sealed in plastic bags took on a dramatically different character
when removed from a sealed container and handled in the jury
room.
613. The jury’s consideration of this changed evidence after it
failed to follow the trial court’s instructions violated Gapen’s
rights under the Federal Constitution, including the Fifth, Sixth,
Eighth and Fourteenth Amendments.
614. “[A]mong the protections that the Sixth Amendment provides
is the right to an impartial jury that arrives at a verdict based upon
the evidence developed at trial.” Fullwood v. Lee, 290 F.3d 663,
682 (4th Cir. 2002) (citation and internal quotation marks omitted).
The Sixth Amendment prohibits the jury from considering
“extraneous prejudicial information.” Id. (citations omitted). The
Eighth Amendment and due process likewise prohibit the jury
from considering inadmissible evidence in its capital sentencing
calculus.
615. The Supreme Court has long held that “the evidence
developed against a defendant shall come from the witness stand in
a public courtroom where there is full judicial protection of the
defendant’s right of confrontation, of cross-examination, and of
counsel.” Parker v. Gladden, 385 U.S. 363, 364-65 (1966) (per
curiam) (internal quotation marks omitted); see also Crawford v.
Washington, 541 U.S. 36, 68 (2004); Turner v. Louisiana, 379
U.S. 466, 472-73 (1965); Doan v. Brigano, 237 F.3d 722, 733 n.7
(6th Cir. 2001), overruled on other grounds by Wiggins v. Smith,
539 U.S. 510 (2003); Gall v. Parker, 231 F.3d 265, 334 (6th Cir.
2000).

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616. The Supreme Court has also long held that a defendant such
as Gapen has a right to the presence of counsel during critical
stages of trial, including the jury’s receipt of evidence. See, e.g.,
United States v. Cronic, 466 U.S. 648, 659-60 & nn. 25-26 (1984),
Holloway v. Arkansas, 435 U.S. 475, 489 (1978); Penson v. Ohio,
488 U.S. 75, 88-89 (1988); Van v. Jones, 475 F.3d 292, 312 (6th
Cir. 2007).
617. The Supreme Court has also long held that a defendant such
as Gapen has a right to a verdict and sentence that is based solely
on the evidence presented at trial and the court’s instructions as to
the applicable law. Turner v. Louisiana, 379 U.S. 466, 472-73
(1965); see also Sheppard v. Maxwell, 384 U.S. 333, 351 (1966)
(counting among essential legal procedures “the requirement that
the jury’s verdict be based on evidence received in open court, not
from outside sources”); Irvin v. Dowd, 366 U.S. 717, 722 (1961)
(stating that a juror’s verdict “must be based upon the evidence
developed at the trial”).
618. The Supreme Court has also long held that a defendant such
as Gapen has a right to a fair, impartial, and unbiased jury that
considers his case solely on the evidence presented in open court
subjected to the procedural protections that are constitutionally
required, and a right to a jury that is free from extraneous
influences such as “private communication, contact, or tampering”
in its deliberations. Remmer v. United States, 347 U.S. 227, 229
(1954); Turner, 379 U.S. at 472-73; Irvin v. Dowd, 366 U.S. 717,
721-22 (1961); Mattox v. United States, 146 U.S. 140, 149 (1892);
Parker, 385 U.S. at 364; see also Gardner v. Florida, 430 U.S.
349, 362 (1977); Doan v. Brigano, 237 F.3d 722, 733 n.7 (6th Cir.
2001) (“As a matter of law, clearly established Supreme Court
precedent requires that a criminal defendant be afforded the right .
. . to a jury that considers only the evidence presented at trial.”
(citing Turner, 379 U.S. at 472-73)); Gall v. Parker, 231 F.3d 265,
334 (6th Cir. 2000) (citations omitted).
619. The Supreme Court has also long held that a defendant such
as Gapen has the right to have his capital jury give full, meaningful
consideration to all relevant mitigating evidence in determining the
sentencing verdict. See, e.g.¸ Abdul-Kabir v. Quarterman, 550 U.S.
233, 246 (2007), Penry v. Lynaugh, 492 U.S. 302, 321 (1989)
(“Penry I”), Hitchcock v. Dugger, 481 U.S. 393, 398–99 (1987),
Skipper v. South Carolina, 476 U.S. 1, 4 (1986), Eddings v.
Oklahoma, 455 U.S. 104 (1982), and Lockett v. Ohio, 438 U.S.
586, 604 (1978).

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620. Similarly, the Supreme Court has long held that a defendant
such as Gapen has the right to have his capital jury give full,
meaningful effect to all relevant mitigating evidence in
determining the sentencing verdict. See, e.g.¸ Abdul-Kabir v.
Quarterman, 550 U.S. 233, 246 (2007), Penry v. Lynaugh, 492
U.S. 302, 321 (1989) (“Penry I”), Hitchcock v. Dugger, 481 U.S.
393, 398–99 (1987), Skipper v. South Carolina, 476 U.S. 1, 4
(1986), Eddings v. Oklahoma, 455 U.S. 104 (1982), and Lockett v.
Ohio, 438 U.S. 586, 604 (1978).
621. The Supreme Court has also long held that a fundamentally
fair trial is also guaranteed by a due process right that is separate
and distinct from these other rights outlined above. Morgan v.
Illinois, 504 U.S. 719, 727 (1992) (“[D]ue process alone has long
demanded that, if a jury is to be provided the defendant . . . the jury
must stand impartial and indifferent to the extent commanded by
the Sixth Amendment.”) (emphasis added); Smith v. Phillips, 455
U.S. 209, 217 (1982) (“Due process means a jury capable and
willing to decide the case solely on the evidence before it, and a
trial judge ever watchful to prevent prejudicial occurrences and to
determine the effect of such occurrences when they happen.” );
Gardner v. Florida, 430 U.S. 349, 362 (1977) (finding a due
process violation when a “death sentence was imposed, at least in
part, on the basis of information which [a defendant] had no
opportunity to deny or explain.”); Sheppard, 384 U.S. at 351;
Turner, 379 U.S. at 472 (“The requirement that a jury’s verdict
‘must be based upon the evidence developed at the trial’ goes to
the fundamental integrity of all that is embraced in the
constitutional concept of trial by jury.”); Irvin, 366 U.S. at 721-22;
In re Murchison, 349 U.S. 133, 136 (1955) (“A fair trial in a fair
tribunal is a basic requirement of due process.”); Gall v. Parker,
231 F.3d 265, 334 (6th Cir. 2000).
622. Each and all of these constitutional rights were violated when
the jury dramatically changed the nature of the evidence when
Forewoman Flournoy removed bloody items of evidence from
sealed containers as they were presented in open court. And the
jury proceeded to examine, handle, and consider the now-changed
evidence in their deliberations during both phases of Gapen’s trial,
in violation of Gapen’s constitutional rights.
623. All of this altered evidence constituted extraneous prejudicial
information that was considered by the jurors at Gapen’s trial. The
evidence was considered during a critical stage of a criminal
proceeding, was received by the jury without the opportunity for
cross-examination or confrontation and with a complete absence of
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counsel. The scope and nature of the altered evidence was also
such that it meant the jury was unable to give full, meaningful
effect to all of Gapen’s relevant mitigating evidence.13 Due process
was violated by the jury’s receipt and consideration of the altered
evidence.
13

The term “altered” evidence is being used to
describe the items that were opened and unsealed
contrary to the trial court order and therefore
improperly considered, and so as not to be confused
with the term unadmitted evidence ( e.g. the gun
receipt, envelope with teeth) that is used in
discussion with respect to other claims.
624. The jury’s failure to follow the court’s instructions also
violated Gapen’s constitutional rights because it denied him and
his counsel the ability to address whatever theories and inferences
could be drawn from the opened, unsealed bloody evidence,
contrary to the Sixth Amendment right to be notified of the
evidence against him.
625. The facts, theories and inferences that could be drawn from
the evidence as it appeared sealed in plastic bags or containers,
presented in open court with all the attendant procedural
protections including the presence of counsel and the opportunity
to examine the evidence, were dramatically different than the facts,
theories and inferences that could be drawn from the evidence
when it was opened, removed from the containers and considered
in the jury room.
626. A trial cannot be fair unless the nature of the charges and
evidence against a defendant are adequately made known to him or
her in a timely fashion, and the jury’s actions here violated those
rights. See Strickland v. Washington, 466 U.S. 668, 685 (1984) (a
fair trial is “one in which evidence subject to adversarial testing is
presented to an impartial tribunal for resolution of issues defined in
advance of the proceeding”) (emphasis added); see also Cole v.
Arkansas, 333 U.S. 196 (1948); see also Gray v. Raines, 662 F.2d
569, 571 (9th Cir. 1981) (“A person’s right to reasonable notice of
a charge against him, and an opportunity to be heard in his defense
-- a right to his day in court -- are basic in our system of
jurisprudence. . . .” (quoting In re Oliver, 333 U.S. 257, 273
(1948))).
627. The jury’s actions also directly implicated Gapen’s right to
counsel. Gapen’s counsel could not prepare or develop a proper
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defense to the theories and inferences that arose with the opened
evidence when counsel was working with the understanding that
the evidence would only be presented to and considered by the jury
as it appeared in open court.
628. The right to counsel “is meaningless unless counsel knows
and has a satisfactory opportunity to respond” to the charges and
evidence against which he or she must defend. See Sheppard v.
Rees, 909 F.2d 1234, 1237 (9th Cir. 1990); see also Strickland, 466
U.S. at 685.
629. Gapen’s counsel had no occasion to defend against the
evidence in the nature and character that it appeared as removed
from sealed containers and displayed in the jury room. This denied
Gapen’s right to effective assistance of counsel guaranteed by the
Sixth Amendment.

(Proposed Third Amended Petition, Doc. No. 148-1, PageID 4302-4308.)
The asserted factual basis of this claim is that the jurors opened containers of physical
evidence during deliberations which they had been instructed by the trial judge not to open. This
is asserted to entitle him to habeas corpus relief because he had a due process right to be tried by
jurors who followed instructions and opening the containers “changed the essential nature of the
evidence from that which was presented at trial. . . .” (Proposed Third Amended Petition, Doc.
No. 148-1, PageID 4303-4304).
The Magistrate Judge denied the Motion as to Ground Thirty-One, holding:
Proposed Ground for Relief Thirty-One does not state a claim upon
which habeas corpus relief can be granted. There are thirty-six
citations to United States Supreme Court decisions in the ThirtyFirst Ground for Relief. None of them stand for the proposition
that a criminal defendant’s constitutional rights are violated when
jurors examine actual physical evidence instead of the tagged
containers in which that evidence has been preserved. The
Magistrate Judge is unaware of any system of metaphysics in
which the “essential nature” of something is changed by taking it
out of a package.

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It is of course true that by handling the physical exhibits, jurors
may have deposited their own DNA, thereby possibly confounding
any post-trial DNA testing. But that is irrelevant to any claim
made by Gapen; the purpose of chain of custody requirements is to
preserve evidence for the jury, not from the jury.
Gapen is of course correct that he was entitled to jurors who
followed instructions and Judge Petzold’s instructions were
violated here. Ms. Flournoy testified at her deposition that she
opened some of the packages which were supposed to stay closed.
But it is evident from Judge Petzold’s instruction that his purpose
was to contain the biohazards presented by bloody evidence, not to
prevent jurors from appreciating the actual physical evidence
recovered and admitted into evidence. [footnote omitted.] To the
extent Gapen’s argument is that the actual bloody evidence would
weigh more heavily with jurors, he may well be right, but that also
is immaterial. A defendant who spills large amounts of blood is
not constitutionally entitled to have the weight of that facts
lessened by having jurors view the blood “through a glass, darkly.”
(Decision and Order, Doc. No. 169, PageID 4686-4687.)
Gapen objects that this part of the Decision is “clearly erroneous and contrary to law, and
should therefore be set aside under 28 U.S.C. § 636(b)(1)(A).” (Objections, Doc. No. 170,
PageID 4689, 4691, 4692.) The Decision and Order does not make or rely on any factual
findings, so the “clearly erroneous” standard of review does not apply. Instead, the District
Court should apply the less deferential “contrary to law” standard and review the Decision and
Order de novo.
The standard of review on nondispositive matters is clearly erroneous as to factual
findings or contrary to law as to legal conclusions. United States v. Curtis, 237 F.3d 598, 603 (6th
Cir. 2001), citing United States v. Raddatz, 447 U.S. 667, 673 (1980). To demonstrate that a
conclusion is contrary to law, a party must show the conclusion “contradict[s] or ignore[s]
applicable precepts of law, as found in the Constitution, statutes, or case precedent." Auto Chem
Laboratories, Inc., v. Turtle Wax, Inc., 2009 U.S. Dist. LEXIS 86126 *6 (S.D. Ohio Sept. 21,

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2009)(Rice, J.), citing Gandee v. Glaser, 785 F. Supp. 684, 686 (S.D. Ohio 1992)(Kinneary, J.),
aff’d 19 F.3d 1432 (6th Cir. 1994), quoting Adolph Coors Co. v. Wallace, 570 F. Supp. 202, 205
(N.D. Cal. 1983).
Under 28 U.S.C. § 2242, a habeas corpus petition may be amended “as provided in the
rules of civil procedure applicable to civil actions.” The Decision and Order cites this statute and
then the standard under Fed. R. Civ. P. 15 as enunciated in Foman v. Davis, 371 U.S. 178 (1962)
(Decision and Order, Doc. No. 169, PageID 4675). Gapen does not suggest there was any error
of law in choosing Foman as the governing standard.
Instead, Gapen argues adding Ground Thirty-One would not be futile because, although it
is unexhausted, it “cannot be said that the claim cannot lead to habeas relief.” (Objections, Doc.
No. 170, PageID 4692, citing Mansion v. Clark, No. CV 09-1494, 2012 WL 2577476 at *3 (C.D.
Cal. Jun. 17, 2012)).
To show that Ground Thirty-One could lead to habeas relief, Gapen makes two
arguments.
1.

Jurors Not Following Instructions
Gapen first contends that he has new evidence that the jurors did not follow Judge

Petzold instructions scrupulously. That is true: In her deposition taken in open court, Juror
Flournoy admitted opening containers of evidence during deliberations which she and the other
jurors were instructed not to open.
As authority that this act by a juror could lead to habeas relief, Gapen cites one case,
United States v. Riccio, 529 F.3d 40, 45-46 (1st Cir. 2008)(quoting United States v. Owens, 167
F.3d 739 (1st Cir. 1999)).
Before examining that precedent, the Magistrate Judge notes that in the Decision and

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Order he stated that Proposed Ground Thirty-One contained citations to thirty-six United States
Supreme Court decisions, not one of which “stand[s] for the proposition that a criminal
defendant’s constitutional rights are violated when jurors examine actual physical evidence
instead of the tagged containers in which that evidence was preserved.” (Decision and Order,
Doc. No. 179, PageID 4686.) If that is one of the Magistrate Judge’s conclusions which is
contrary to law, one would expect Gapen to point to the applicable Supreme Court precedent.
He has not.
Instead, he has directed the Court to one published opinion of the First Circuit. That
case, Riccio, supra, did not involve any alleged failure of the jury to follow instructions. Rather,
the claim on appeal was that the instructions were erroneous. The language quoted by the Riccio
court from Owens is pure dictum, not argued by the parties and not necessary to the decision in
Riccio. See Owens, 167 F.3d at 756. Owens itself involved a claim of error in the jury
instructions, and not in the failure to jurors to follow them.
In sum, Gapen has cited not a single case in which any court has held that any of a
criminal defendant’s constitutional rights are violated when jurors open sealed evidence
packages contrary to the judge’s instructions.
To prevail on this claim, Gapen must show that the jury’s acts violated the Constitution.
If the amendment is permitted and he then exhausts the claim in state court, he will have to show
that the state court adjudication of the claim was contrary to or an objectively unreasonable
application of clearly established Supreme Court precedent as of the time of trial. If there is any
law that supports that conclusion, it is not cited in either the Motion or the Objections.

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2.

Changing the “Essential Nature” of the Evidence

Gapen’s second argument as to how his Thirty-First Ground could “lead to habeas relief”
is that “the jurors’ conduct arguably changed the essential nature of the evidence. . . .”
(Objections, Doc. No. 170, PageID 4692.)
The Decision and Order states “[t]he Magistrate Judge is unaware of any system of
metaphysics in which the ‘essential nature’ of something is changed by taking it out of a
package.” (Decision and Order, Doc. No. 169, PageID 4686-4687.) All that Gapen says in his
Objections in response is that that proposition is “arguable.” However, he makes no such
argument. Moreover, he cites no legal authority at all in support of this proposition. It remains
true that the trial exhibits are the contents of the evidence containers and not the containers
themselves.
In sum, Gapen has not shown that his Thirty-First Ground for Relief is cognizable in
habeas at all. It is therefore respectfully recommended that his Objections be overruled.

Applicability of Fed. R. Civ. P. 11 in Habeas Corpus

Rule 12 of the Rules Governing § 2254 Cases provides that “[t]he Federal Rules of Civil
Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules,
may be applied to a proceeding under these rules.” Fed. R. Civ. P. 11, which is in no way
inconsistent with any statute or the Habeas Rules, provides in pertinent part:

(b) By presenting to the court (whether by signing, filing,
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submitting, or later advocating) a pleading, written motion, or
other paper, an attorney or unrepresented party is certifying that to
the best of the person's knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such
as to harass or to cause unnecessary delay or needless
increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein
are warranted by existing law or by a nonfrivolous
argument for the extension, modification, or reversal of
existing law or the establishment of new law;
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified, are
likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably
based on a lack of information or belief.

Far too much needless delay occurs in capital habeas corpus litigation.
In capital cases, as recent studies have shown, habeas litigation too
often drags on for years, even decades. One important reason is
that, unlike most noncapital prisoners seeking release from
custody, most death row inmates have no inherent incentive to try
to speed up the pace of habeas litigation. Delay is almost always
preferable to the alternative, which is timely enforcement of the
death sentence.

King and Hoffman, Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the
Great Writ at 150 (2011).2 Rule 11 provides the district courts with a tool with which to combat
needless delay. When delay is occasioned by argument which is not even made, much less
“nonfrivolous,” as is the case with Gapen’s “essential change” argument, the Court may well
suspect that delay is the motivation.

Sanctions are appropriate when “an attorney . . .

2

(Based on King, Cheesman, and Ostrom, Final Technical Report: Habeas Litigation in U.S. District Courts
(2007)(available at http://www.ncjrs.gov/pdffiles/nij/grants/219559.pdf.)

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intentionally abuses the judicial process or knowingly disregards the risk that his actions will
needlessly multiply proceedings.” Red Carpet Studios Div. of Source Advantage, Ltd. v. Sater,
465 F.3d 642, 646 (6th Cir. 2006). A district court may impose a Rule 11 sanction on an attorney
and prohibit reimbursement from any source. Derechin v. State University of New York, 963
F.2d 513, 519 (2nd Cir. 1992).
While vigorous advocacy is expected in capital litigation, counsel are cautioned that the
Court considers Rule 11 fully applicable to these proceedings.

January 8, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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