Pound v. Warden, Lebanon Correctional Institution

Filing 6

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - The Magistrate Judge again recommends that the Petition be dismissed with prejudice, that Pound be denied a certificate of appealability, and that this Court certify to the Sixth Circuit that an appeal would not be taken in objective good faith. Objections to R&R due by 7/5/2013. Signed by Magistrate Judge Michael R Merz on 6/17/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
NICKEY LEE POUND, SR.,
Petitioner,

:

Case No. 3:13-cv-083

- vs -

District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

WARDEN, Lebanon Correctional
Institution,
Respondent.

:

SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on Petitioner’s Objections (Doc. No. 4) to the
Magistrate Judge’s Report recommending dismissal with prejudice under Rule 4 of the Rules
Governing § 2254 Cases (Doc. No. 2). Upon initial consideration of the Objections, Judge Rice
has recommitted the case under Fed. R. Civ. P. 72(b) (Doc. No. 5).

Use of Rule 4

Pound first objects to the application of Rule 4 to this case, “rather than the traditional
process of Return of Writ and Traverse.” (Objections, Doc. No. 4, PageID 47.) Rule 4 of the
Rules Governing § 2254 Cases (the “Habeas Rules”) reads in its entirety:
The clerk must promptly forward the petition to a judge under the
court's assignment procedure, and the judge must promptly
examine it. If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition and direct the clerk to
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notify the petitioner. If the petition is not dismissed, the judge must
order the respondent to file an answer, motion, or other response
within a fixed time, or to take other action the judge may order. In
every case, the clerk must serve a copy of the petition and any
order on the respondent and on the attorney general or other
appropriate officer of the state involved.

The Advisory Committee Notes on the adoption of Rule 4 in 1976 note that it is carrying out the
requirement of 28 U.S.C. § 2243 to determine if the Petitioner is not entitled to relief before
ordering an answer. The Committee went on to note “under § 2243 it is the duty of the court to
screen out frivolous applications and eliminate the burden that would be placed on respondent by
ordering an unnecessary answer.” Thus although obtaining a return of writ and a traverse (called
“answer” and “reply” in the Habeas Rules) may be more usual or “traditional,” the Habeas Rules
themselves contemplate that there will be cases which can and should be adjudicated on initial
review. The Supreme Court has recently endorsed this view: “[F]rivolous petitions should
occasion instant dismissal.” McQuiggin v. Perkins, 569 U.S. ___, 133 S. Ct. 1924, 185 L. Ed. 2d
1019, 1035 (2013).

Actual Innocence Claim:

Pound is asserting a claim of actual innocence. He believes that the fact he is making that
particular kind of claim excuses all of the procedural defaults found by the Magistrate Judge in
the Report.
Pound was convicted in the Montgomery County Common Pleas Court on August 29,
1997, of aggravated murder, attempted murder, felonious assault, improperly discharging a
firearm into a habitation (all with firearm specifications) and having weapons under disability.

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(Petition, Doc. No. 1, PageID 1-2.) The convictions were affirmed on direct appeal in State v.
Pound, 1998 Ohio App. LEXIS 4364 (Ohio App. 2nd Dist. 1998). The Ohio Supreme Court then
declined to conduct further review. (Petition, Doc. No. 1, ¶ 9. The case became final on direct
review ninety days later when Petitioner’s time to apply to the United States Supreme Court for a
writ of certiorari expired.
Petitioner filed a new trial motion in the Common Pleas Court which was construed as a
petition for post-conviction relief and denied April 15, 1999. Id. at ¶ 11. Pounds filed additional
petitions for post-conviction relief in that court on February 1, 2008; June 29, 2009; and January
3, 2011. Id. at PageID 4, 6.
Pound’s claim that Elvis Wooliver perjured himself at trial was raised by Pound for the
first time in his new trial motion in 1999. The Second District Court of Appeals found he had
procedurally defaulted that claim by (1) not raising it on direct appeal to the extent it was
supported by evidence of record and (2) by Pound’s failure to appeal from denial of the new trial
motion. State v. Pound, 2012 Ohio 3392, 2012 Ohio App. LEXIS 2983 ¶¶ 9-10 (Ohio App. 2nd
Dist. 2012). As noted in the Report, both of those procedural defaults are based on Ohio
procedural rules which have been found by the federal courts to be adequate and independent
bases for state court decisions, thereby satisfying the standard for enforceable procedural
defaults. (Report, Doc. No. 2, PageID 37 citing Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir.), cert. denied sub nom, Eley v. Hauk,
__ U.S. __, 131 S.Ct. 822 (2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02
(6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001)).
The court of appeals found additional procedural defaults in the fact that Pound’s second,

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third, and fourth petitions were untimely under Ohio Revised Code § 2953.21(A)(2). State v.
Pound, 2012 Ohio 3392, 2012 Ohio App. LEXIS 2983 ¶10 (Ohio App. 2nd Dist. 2012). Finally,
the court found an additional procedural bar in Pound’s failure to appeal the trial court judgment
of March 3, 2010. Id.
Pound asserts his actual innocence “will excuse an untimely Petition filed beyond the
one-year Statute of Limitations period, as this Petitioner clearly is.” (Objections, Doc. No. 4,
PageID 47, citing Souter v. Jones, 395 F.3d 577 (6th Cir. 2005).) The Souter precedent has been
displaced by the Supreme Court’s decision in McQuiggin, supra.
[A]ctual innocence, if proved, serves as a gateway through which a
petitioner may pass whether the impediment is a procedural bar, as
it was in Schlup and House, or, as in this case, expiration of the
statute of limitations. We caution, however, that tenable actualinnocence gateway pleas are rare: “[A] petitioner does not meet the
threshold requirement unless he persuades the district court that, in
light of the new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt.” Schlup, 513
U. S., at 329, 115 S. Ct. 851, 130 L. Ed. 2d 808; see House, 547 U.
S., at 538, 126 S. Ct. 2064, 165 L. Ed. 2d. 1 (emphasizing that the
Schlup standard is “demanding” and seldom met). And in making
an assessment of the kind Schlup envisioned, “the timing of the
[petition]” is a factor bearing on the “reliability of th[e] evidence”
purporting to show actual innocence. Schlup, 513 U. S., at 332,
115 S. Ct. 851, 130 L. Ed. 2d. 808.
***

[A] federal habeas court, faced with an actual-innocence gateway
claim, should count unjustifiable delay on a habeas petitioner’s
part, not as an absolute barrier to relief, but as a factor in
determining whether actual innocence has been reliably shown.
185 L. Ed. 2d at 1027.
The threshold question for this Court, then, is whether Pound has presented a persuasive
case of actual innocence. In support of his Petition, Pound offers first his own Affidavit of
December 22, 2010, which asserts that

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3)
he did not, at any time, have or fire the assault rifle which
was responsible for the death of Mr. Krimm; . .
.
5)
the girl-friend of the perjurer called the trial judge during
the trial to inform him that the testimony given by her boyfriend
was perjured;
6)

this fact is part of the trial transcripts;

(Attached to Petition, Doc. No. 1, PageID 17.) Pound then offers summaries of testimony in the
trial transcript, although the actual transcript pages are not tendered. Id. at PageID 18. Next is an
undated unsworn letter from someone who signs himself “Elvis,” purportedly to a John W.
Coile, an inmate at Ohio’s Lebanon Correctional Institution. Id. at PageID 21-22. Elvis purports
to love “Dogg” (an alias of Pound’s) like a father and to be working to get him out, but he does
not confess to perjuring himself at trial.
Next is an unsworn letter dated November 23, 1997, to “Dad” and signed “Blue,” an alias
for Pound’s son. Id. at PageID 23-24. This letter also does not, even if it were sworn, provide
any proof of Wooliver’s purported perjury or of Pound’s innocence.
Next is another letter from Blue to Dad dated November 10, 1997. Id. at PageID 25-27.
Blue apologizes for what he did to his father, to wit, putting him in prison for life. He does not
say what that was, nor does he say anything about any perjured testimony.
Next is a October 12, 1999, Affidavit from William Hefner who avers that he was in
prison with Elvis Wooliver in July-August, 1988.

During that conversation, Wooliver

purportedly admitted to Hefner that
1)
He, Pound, and Pound’s son Nick Pound, Jr. [Blue] were
co-defendants in the case.
2)
“Nick Pound, Jr., was the person who had the assault rifle
that night. He also said that there was no plan to hurt anyone, only

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to shoot the house and it was an accident that the people were shot,
as Nick Pound Sr. testified at trial.
3)
Elvis also said that he had lied at Nick Pound Sr.’s trial and
said that he and Nick Pound Jr. would testify that the assault rifle
was in the hands of Nick Pound Sr. that night.
4)
Elvis said that if Nick Pound Jr. got an appeal that he
would tell the story truthfully and not lie as he did at trial.
Id.. at PageID 28. PageID 29 is another affidavit which cannot be read, but appears to be from
inmate Gary Houtz, who also signed the Affidavit which appears at PageID 30. He states that he
celled with Wolliver in the Montgomery County Jail in October-December, 1996, and Wooliver
told him:
5)
It was an accident that the people were shot and the other
two defendants, who had not yet been arrested were Dog and
Dog’s son Blue.
6)
“He then told me that Blue had the assault rifle and that
Dog has [sic] the 22 cal. rifle and he had the shotgun.
Id.
Next is the June 23, 1999, Affidavit of Darren Freeman, then incarcerated at the Madison
Correctional Institution. Freeman avers:
(2) In November 1997, Nick Pound Sr, and I were standing in the
chow line at the correction receiving center, waiting to be feed
[sic], when out of nowhere inmate Elvis, approaches Nick Pound
Sr, and begines [sic] saying “I am really sorry about what
happened at your trial,” and elvis further stated that he should have
told the truth that Nick Pound Jr. was the one who killed Tim
Krimn, but he felt that nick pound jr, deserved his loyalty because
of there [sic] long standing friendship, so he (elvis) said he chose
to lie and say that nick sr, did it.
(3) Elvis went on to say that if nick sr, got an appeal he would tell
the truth, and why he lied which led to the conviction of nick
pound sr.

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Id. at PageID 31.
Next is a February 5, 2009, Affidavit of inmate Mark Layman. Layman avers that at
some undisclosed time he talked to Wooliver in Dayton, presumably at Dayton Correctional
Institution and
Elvis Wooliver, Jr. told me that he lied at Nick Pound Sr.’s trial.
Stating that Pound Sr. had the assault rifle which Elvis said it was
Pound Junior that had the assault rifle. Pound Sr. had a 22 caliber
rifle and he himself had the shotgun, and that it was an accident
anyone was shot. He also said he was the only one that could get
Pound Sr. a new trial because he lied at the trial. He also stated that
he was threatened by the detectives and the prosecutor into saying
Pound Sr. had the assault rifle. He also said that he stated this
Pound Sr.’s trial.

Id. at PageID 32.
In affirming the conviction on direct appeal, the Second District Court of Appeals found
the following facts:
Nickey Lee Pound, Sr., a.k.a. "Dog," was tried and convicted of
aggravated murder, attempted murder, felonious assault, and
improperly discharging a firearm at or into a habitation, each with
firearm specifications. He also pleaded guilty to having weapons
while under disability. The trial court sentenced him accordingly,
and Pound appeals.
The indictment stated that, on July 13, 1996, Pound had committed
the offenses of aggravated murder, in violation of R.C.
2903.01(A), against Tim Krimm; attempted murder, in violation of
R.C. 2903.02(A) and 2923.02(A), against Mark Krimm; felonious
assault, in violation of R.C. 2903.11(A)(2), against Patrick
Nuckles; improperly discharging a firearm at or into an occupied
structure, in violation of R.C. 2923.161(A); and having weapons
while under disability, in violation of R.C. 2923.13(A)(2). The trial
court entered a plea of not guilty on Pounds' behalf. On August 19,
1997, the first day of trial, Pound withdrew the prior plea of not
guilty to the offense of having weapons while under disability and
pleaded guilty to that offense.
The evidence presented at trial established the following facts.
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Two weeks prior to the date of the charged offenses, Pound and
Tim Krimm were arguing in the parking lot of Slammers, a bar in
Huber Heights, Ohio where Tim Krimm worked as a "bar back."
Pound approached Tim Krimm, who backed away and then hit
Pound in the head with a flashlight, causing his eyeglasses to
break. Pound subsequently attempted to contact Tim Krimm at
Slammers to get money for his glasses. At approximately 1:00 a.m.
on July 13, 1996, Pound, his son, Nickey Lee Pound, Jr., a.k.a.
"Blue" ("Blue"), and Elvis J. Wooliver went to Slammers. Blue
and Wooliver started playing pool while Pound sat down nearby
and drank beer. Wooliver pointed out to Pound that Tim Krimm
was behind the bar. Pound approached Tim Krimm and asked him
for money, but Tim Krimm ignored him. On Pound's behalf,
Nuckles also asked Tim Krimm to pay for the broken glasses, but
Tim Krimm refused. At closing time, Tim Krimm walked out the
back door of Slammers to avoid further confrontation with Pound.
Tim and Mark Krimm, their girlfriends, Nuckles, Donald Vanover,
and Sue Lannom went back to Tim Krimm's house, located at 713
Hart Street in Dayton, Ohio. Everyone except Tim Krimm was
sitting on the porch when Pound, Blue, and Wooliver arrived at
713 Hart Street. Pound got out of the car and walked up onto the
porch. Tim Krimm, who had been inside his house, came to the
front door with a gun, pointed it at Pound, and ordered him to get
off his property. Pound backed up, walked to the car, and got
inside. Tim Krimm continued to point the gun in the direction of
the car as it was driven away. Pound, Blue, and Wooliver stopped
the car at a gas station, and Pound telephoned his friend Carl Burba
to inquire about borrowing some guns. They drove to Burba's
house, and Burba provided them with three guns: a .223 caliber
semiautomatic rifle ("the assault rifle"), a .22 caliber
semiautomatic rifle ("the .22 caliber rifle"), and a shotgun. Burba
loaded the clips of the assault rifle and the .22 caliber rifle. He also
supplied ammunition for the shotgun and disposable gloves.
With the guns in the trunk, Pound, Blue, and Wooliver headed
back to Tim Krimm's house. They parked the car in a nearby alley
and walked toward the house, each carrying a gun. At that time,
Tim and Mark Krimm and Nuckles were outside on Tim Krimm's
porch, while their friends were inside the house. Although the
evidence was in dispute over who had carried and fired which gun,
the person with the assault rifle fired several rounds of shots in the
direction of the front porch and hit Tim Krimm, who had been
standing on his porch steps. A bullet wound to the head caused
Tim Krimm's death. Mark Krimm was shot in the leg, and Nuckles
escaped physical injury. The person with the .22 caliber rifle stood
in the alley and fired shots toward the east wall of the house, and
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bullets penetrated that wall but did not injure anyone inside the
house. After the shooting had stopped, Pound, Blue, and Wooliver
ran back to the car, drove away, and took the guns to a friend's
apartment. With the help of Pound's friend Smokey, they invented
an alibi for their whereabouts at the time of the shooting.
State v. Pound, 1998 Ohio App. LEXIS 4364, *1-4. (2nd Dist. 1998)(Wolff, J.). Blue and
Wooliver obtained plea agreements and pleaded guilty to involuntary manslaughter, felonious
assault, and (in Wooliver’s case) obstructing justice. Id. at *4-5. Part of the plea agreements
was that each of them would testify truthfully at trial. The court of appeals’ analysis shows that
it was Pound who had the running feud with Tim Krimm and the announced intention to shoot at
Krimm’s house after Krimm, armed with a gun, told Pound to get off his property. Id. at *10-11.
None of the facts recited by the court of appeals is disputed by Pound except the finding
that he was the one who fired the assault rifle, a bullet from which killed Tim Krimm. Pound’s
claim of actual innocence, as the Court understands it, is that, while he was a co-conspirator with
Blue and Wooliver in the shooting, he did not fire the assault rifle which expelled the fatal bullet.
Pound’s claim of actual innocence is completely unpersuasive. From the facts found by
the court of appeals which are not contradicted by anything presented by Pound with his Petition,
it was he who had the grudge with Krimm, he who went to Krimm’s house and was confronted
with a firearm, he who procured all three weapons from someone named Burba, and he who
went back to Krimm’s house and fired at it with some kind of firearm. At trial Blue and
Wooliver both testified Pound had the assault rifle. Neither one of them has provided an
affidavit repudiating his trial testimony. Even Pound’s affidavit does not say Blue had the
assault rifle, but only that Pound did not.
"To be credible, such a claim [of actual innocence] requires petitioner to support his
allegations of constitutional error with new reliable evidence -- whether it be exculpatory

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scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not
presented at trial." Schlup, 513 U.S. at 324. Pound presents none of these things. His claim is
that Wooliver has admitted perjuring himself to a number of other prison inmates and, in the last
affidavit presented with the Petition1, that he was pressured to do so by detectives and the
prosecutor. Despite the inference Pound wants the Court to draw, we do not know that Blue was
apologizing to his father for saying Pound had the assault rifle; he may have been apologizing for
agreeing to testify at all. In any event, he has not given an affidavit admitting either perjury or
firing the assault rifle.
In MsQuiggin the Supreme Court instructs trial courts to consider the timeliness of a
petitioner’s filing an actual innocence claim as part of weighing its credibility.

Like the

petitioner in McQuiggin, Pound waited many years to file his habeas petition: the crime here
occurred July 13, 1996, and the petition was not filed until March 18, 2013, nearly seventeen
years later. Pound explains his delay by stating that the trial court took three years to rule on his
post-conviction petition (Objections, Doc. No. 4, PageID 48). But he does not explain why he
filed four separate post-conviction petitions in the Ohio courts when Ohio has a limit on
successive post-conviction petitions and his second, third, and fourth petitions were found to be
untimely. That is, he does not explain why he did not come to federal court when he had
exhausted his available state court remedies.
Although the delay is unexplained, it does little to detract from the rest of the evidence of
actual innocence because that evidence is so slim. The Court is not informed of whether the
various affiants are all still in prison and therefore available or whether their recollection of

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Pound presents the April 16, 2013, Affidavit of inmate Robert Shane Ritchie recounting a January, 2012,
conversation with Wooliver to the same effect as prior affidavits. Pound offers no explanation as to why he could
not have obtained this Affidavit in time to submit it with the Petition. Considering that Affdiavit now, it adds
nothing of substance to the actual innocence claim.
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Wooliver’s admissions may have dimmed. The bottom line is that, if neither Blue nor Wooliver
has retracted his trial testimony under oath, the evidence that it was Pound who had the assault
rifle is sufficient to convict.
Even if Pound had persuasive evidence that he did not fire the shot that killed Tim
Krimm, it is not clear that this would exonerate him of Krimm’s murder. As Judge Wolff noted
on direct appeal, it was Pound who had the motive and Pound who devised the scheme to acquire
lethal weapons and then, along with Wooliver and Blue, discharged them into an occupied
structure, killing the person against who the scheme was directed, as well as wounding another.
This is sufficient evidence under Ohio law for Pound to be convicted as an aider and abettor of
his son, assuming Blue had the assault weapon.
Pound also faults the Court for not giving him an evidentiary hearing on his actual
innocence claim (Objections, Doc. No. 4, PageID 49). In McQuiggin, the Supreme Court does
not discuss the interaction between that decision and its holding in Cullen v. Pinholster, 563 U.S.
___, 131 S.Ct. 1388 (2011). However, it strongly suggests that a habeas petitioner who claims
actual innocence must present at least a colorable actual innocence claim to pass through the
Schlup gateway. McQuiggin, 185 L. Ed. 2d at 1033. Were this not so, a habeas petitioner could
plead actual innocence in completely conclusory terms (e.g. “I didn’t do it.”) and obtain a full
trial of that claim in federal court. This would turn habeas corpus jurisprudence on its head and
be inconsistent with the Supreme Court’s observation in McQuiggin and Schlup that persuasive
actual innocence claims will be rare.
Pound has not presented a persuasive claim of actual innocence. Therefore, he has not
excused either his state court procedural defaults which are enumerated in the Report or his
failure to file within the statute of limitations.

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The Magistrate Judge therefore again

recommends that the Petition be dismissed with prejudice, that Pound be denied a certificate of
appealability, and that this Court certify to the Sixth Circuit that an appeal would not be taken in
objective good faith.
June 17, 2013.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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