Gapen v. Bobby

Filing 196

DECISION AND ORDER ON MOTIONS TO HOLD PETITION IN ABEYANCE AND EXPAND SCOPE OF REPRESENTATION - Petitioner's Motion to hold Petition for Writ of Habeas Corpus in Abeyance Pending Exhaustion of Newly Discovered Claims Being Presented in State Court (Doc. No. 191) is DENIED. Petitioner's Request for Authorization Allowing Federal Habeas Corpus Counsel to Conduct State Court Litigation (Doc. No. 192) is GRANTED. Signed by Magistrate Judge Michael R Merz on 10/8/2013. (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.

:

DECISION AND ORDER ON MOTIONS TO HOLD PETITION IN
ABEYANCE AND EXPAND SCOPE OF REPRESENTATION

This case is before the Court on Petitioner’s Motion to hold Petition for Writ of Habeas
Corpus in Abeyance Pending Exhaustion of Newly Discovered Claims Being Presented in State
Court (Doc. No. 191) and Petitioner’s Request for Authorization Allowing Federal Habeas
Corpus Counsel to Conduct State Court Litigation (Doc. No. 192). The Motions were filed
September 30, 2013, and opposed the next day by the Warden (Doc. No. 193). Consistent with
this Court’s prior expressed intention to expedite the decision of this case (see Order Regarding
Case Scheduling, Doc. No. 187), the Magistrate Judge ordered that Petitioner file any reply
memorandum by noon on October 4, 2013, and Petitioner has done so (Doc. No. 195).
The relevant recent procedural history is set forth in the Order Regarding Case
Scheduling and need not be repeated. Since that Order was entered, the Third Amended Petition
was filed on July 15, 2013 (Doc. No. 188) and the Return of Writ was filed on September 30,
2013 (Doc. No. 194), in addition to the instant Motions.
1

Motion for Abeyance

Petitioner desires abeyance to exhaust his Ohio remedy of a delayed motion for new trial
and has filed a copy of that motion in proposed form (Exhibit A to Doc. No. 191). Ohio R.
Crim. P. 33(B) provides that a motion for new trial in an Ohio criminal case must be filed within
fourteen days of the verdict or, if based on newly discovered evidence, within 120 days of the
verdict. The Rule recognizes an exception to these time limits:
If it is made to appear by clear and convincing proof that the
defendant was unavoidably prevented from the discovery of the
evidence upon which he must rely, such motion shall be filed
within seven days from an order of the court finding that he was
unavoidably prevented from discovering the evidence within the
one hundred twenty day period.

The text of the Rule, which is unchanged since its adoption in 1973, sets no time limit on filing a
motion for leave to file a delayed motion for new trial. In State v. Pinkerman, 88 Ohio App. 3d
158 (4th Dist. 1993), the court refused to infer any time limit on such a motion. In State v. Davis,
131 Ohio St. 3d 1, 6-7 (2011), the Ohio Supreme Court noted the time limits in the Rule and held
Crim.R. 33 does not otherwise limit the time for filing a motion for a new trial based on newly
discovered evidence. Id. at ¶ 27.
The text of Ohio R. Crim. P. 33 also does not state the standard on which a trial court
should decide a motion for leave to file a delayed motion for new trial.

In State v.

Ambartsoumov, 2013 Ohio 3011, 2013 Ohio App. LEXIS 3057 (10th Dist. 2013), the court
opined
"[A] party is unavoidably prevented from filing a motion for new
trial if the party had no knowledge of the existence of the ground
supporting the motion for new trial and could not have learned of
the existence of that ground within the time prescribed for filing
2

the motion for new trial in the exercise of reasonable diligence."
State v. Walden, 19 Ohio App.3d 141, 145-46, 19 Ohio B. 230,
483 N.E.2d 859 (10th Dist.1984). Further, "[m]ost courts * * *

also require defendants to file a motion for leave within a
reasonable time after discovering the evidence." State v. Peals, 6th
Dist. No. L-10-1035, 2010-Ohio-5893, ¶ 22, citing State v.
Grinnell, 10th Dist. No. 09AP-1048, 2010-Ohio-3028.
Ambartsoumov, at ¶ 12. Thus the Ohio Rule as interpreted by the Ohio courts speaks to
diligence both in discovering the new evidence and in presenting it to the trial court.
The evidence Gapen wishes to present is evidence that he discovered during these federal
habeas corpus proceedings (Proposed Motion, Doc. No. 191-1, PageID 18145-46). In January
2012, the undersigned denied a motion to amend and to expand the scope of discovery upon a
finding that Gapen’s counsel had not exercised due diligence in conducting the investigation
which uncovered the new facts, thereby allowing the one-year statute of limitations to run (Doc.
No. 110). Upon Gapen’s objections, Judge Rice overruled that finding, holding instead:
These cases illustrate the principle that if a petitioner has
absolutely no reason to suspect that a particular habeas claim
exists, he or she should not be faulted for failing to exercise due
diligence in uncovering evidence of that claim. In Gapen's case, as
with the discovery that the jurors had improperly consulted the
Missouri highway map in Helmig, Petitioner's counsel stumbled
across the new constitutional claims by "happenstance," in the
course of interviewing one of the jurors about an existing,
unrelated habeas claim. There is absolutely nothing in the trial
record that would have alerted them to the fact that Juror Maguire
may have been biased as a result of the violent shooting that took
place in his duplex, or that, during deliberations, the jurors
considered the receipt found in Gapen's wallet indicating that he
may have attempted to purchase a gun using a false Social Security
number, or that the jurors disclosed this fact to the trial judge, who
failed to notify the attorneys that the jury had considered
extraneous evidence that had not been admitted at trial.
Admittedly, if Petitioner's counsel had interviewed Maguire at an
earlier date, they may have gained earlier access to this
information. Or maybe not. Notably, Maguire and Senter were
interviewed by Gapen's post-conviction counsel in 2002, but failed
to mention anything about these matters at that time. It is not clear
3

what prompted Maguire to discuss these particular matters during
the latest interviews.
In any event, as in Helmig, this is not a case where Gapen slept on
his rights. In fact, he has diligently pursued dozens of other habeas
claims. There was nothing in the record to alert him to the possible
existence of these new constitutional claims. Because he had no
reason to suspect that Maguire might have been influenced by the
violent shooting at his neighbor's duplex, that the jury considered
extraneous evidence, or that the trial judge engaged in post-trial
judicial misconduct, it cannot be said that he failed to exercise due
diligence with respect to these claims.
In the Court's view, the Magistrate Judge's finding to the contrary
was clearly erroneous or contrary to law. The Court therefore
SUSTAINS Petitioner's objection with respect to this portion of the
Decision and Order, and concludes that the Twenty-Sixth, TwentySeventh, and Twenty-Eighth Grounds for Relief are timely filed
pursuant to 28 U.S.C. § 2244(d)(1 )(D). Petitioner is granted leave
to file a Second Amended Petition adding these three new claims,
along with the lethal injection claims (Twenty-Fourth and TwentyFifth Grounds for Relief).
(Decision and Entry, Doc. No. 122, PageID 3055-56.) Whether and to what extent Judge Rice’s
finding of due diligence is binding on the Ohio courts as a matter of issue preclusion or whether,
if not binding, it is persuasive, is a matter of Ohio law on which the Magistrate Judge offers no
opinion.
But there is another question of due diligence presented by the instant Motion: has
Gapen been diligent in presenting the new evidence to the Ohio courts since he discovered it in
this case? As Judge Rice’s Decision recites, Gapen’s counsel learned of the factual basis for the
bulk of these claims when interviewing jurors in December 2011 and January 2012. Some
additional information was learned in formal discovery in this case after Judge Rice’s finding in
March 2012 and that additional evidence formed the basis for allowing a Third Amended
Petition in December 2012 (Decision and Order, Doc. No. 169).
The United States Supreme Court has decided that district courts have authority to grant

4

stays in habeas corpus cases to permit exhaustion of state court remedies in consideration of the
AEDPA’s preference for state court initial resolution of claims. It cautioned, however,
[S]tay and abeyance should be available only in limited
circumstances. Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the state courts, stay
and abeyance is only appropriate when the district court
determines there was good cause for the petitioner's failure to
exhaust his claims first in state court. Moreover, even if a
petitioner had good cause for that failure, the district court would
abuse its discretion if it were to grant him a stay when his
unexhausted claims are plainly meritless. Cf. 28 U.S.C. §
2254(b)(2) ("An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State"). . . .
On the other hand, it likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if the
petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no
indication that the petitioner engaged in intentionally dilatory
litigation tactics.
Rhines v. Weber, 544 U.S. 269, 277-278 (2005). “Staying a federal habeas petition frustrates
AEDPA’s objective of encouraging finality by allowing a petitioner to delay the resolution of
federal proceedings. Id. It also directed district courts to place reasonable time limits on the
petitioner’s trip to state court and back.
The Warden strongly opposes Gapen’s Motion and argues this Court should “simply
deny the unexhausted claims.” (Warden’s Opposition, Doc. No. 193, PageID 18262.) The
asserted basis for dismissal is that “the claims are procedurally defaulted because of Gapen[‘s]
failing to present them to state court in a timely manner.” Id. at PageID 18263. The difficulty
with this argument is that procedural default doctrine requires in most instances that the state
procedural rule have been enforced against the petitioner. Maupin v. Smith, 785 F.2d 135, 138
(6th Cir. 1986). Ohio has, as outlined above, no deadline for filing a motion for leave to file a

5

delayed motion for new trial which has yet been enforced against Gapen. That cannot happen
until the motion for leave to file a delayed motion for new trial has been filed and adjudicated.
Fortunately, Rhines v. Weber does not require a stay when claims are unexhausted; it
merely permits a stay. While the federal habeas court cannot finally adjudicate a petition which
includes both exhausted and unexhausted claims, nothing in Rhines requires this Court to
suspend preparation for final adjudication until exhaustion of all claims is complete. And, as the
Warden points out, habeas jurisprudence does not require any permission from this Court for
Gapen to file his motion for leave to file a delayed motion for new trial in the Common Pleas
Court.
Accordingly, the Motion for Abeyance is DENIED without prejudice to its renewal if the
Common Pleas Court grants Gapen’s motion to leave to file a delayed motion for new trial.

Motion to Expand Scope of Representation

Gapen seeks authorization from this Court to expand the scope of representation by his
current counsel, Assistant Federal Public Defenders Sharon Hicks, Allen Bohnert, and Carol
Wright, to include filing the proposed motion for leave to file a delayed motion for new trial and
in “any state court proceedings relating to the disposition of the motion.” (Doc. No. 192, PageID
18195.)
The Warden opposes the expansion on the grounds 18 U.S.C. § 3599(e) does not permit
such an authorization for state court actions in which a habeas petitioner is entitled to counsel
appointed by the state courts (Warden’s Opposition, Doc. No. 193, PageID 18260-61.) Gapen
replies that Ohio law does not provide for such an appointment, relying on State v. Chumm, 2010

6

WL 364460 (Ohio App. 4th Dist. Jan. 28, 2010); and State v. Blankenship, 1995 WL 746232
(Ohio App. 12th Dist. 1995). In Chumm, the court held:
Ohio Courts have also held that the right to appointed counsel does
not extend to post-sentence motions filed under the Criminal
Rules. See State v. McNeal, Cuyahoga App. No. 82793, 2004Ohio-50, at ¶ 6-8 (“Ohio courts have not granted greater rights
than those in the federal constitution” and concluding that the
movant had no right to appointed counsel for his Crim.R. 32.1
motion), citing State v. Watts (1989), 57 Ohio App.3d 32, 33, 565
N.E.2d 1282.

Chumm, 2010 WL 364460, at ¶ 10. The Warden offers no law to the contrary.
The Warden opines that “in these hard economic times in the federal government, it
would be a waste of resources for the Federal Judiciary to litigate non-meritorious claims in state
court.” (Warden’s Opposition, Doc. No. 193, PageID 18261.) The Magistrate Judge agrees in
the abstract, but this Court has not yet determined that any of the claims to be presented are nonmeritorious, Judge Rice has determined that they are not barred by the statute of limitations, and
the Warden has declined to waive exhaustion. The alternative to granting the Motion would be
to require Gapen to present his motion for leave to file a delayed motion for new trial pro se.
This the Court declines to do when that motion appears to be necessary to exhaust potentially
available state court remedies and his present counsel have, by signing and filing the Motion,
made the professional representations required by Fed. R. Civ. P. 11.
The Motion to Expand the Scope of Representation is GRANTED.
October 8, 2013.
s/ Michael R. Merz
United States Magistrate Judge

7