Farmer v. Warden, Marion Correctional Institution

Filing 10

REPORT AND RECOMMENDATIONS ON MOTION TO AMEND THE JUDGMENT - It is respectfully recommended that Petitioner's Motion to Alter or Amend the Judgment (ECF No. 9) be DENIED. Because reasonable jurists would not disagree with this conclusion, Pe titioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 1/28/2016. Signed by Magistrate Judge Michael R. Merz on 1/11/2016. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVID A. FARMER,
Petitioner,

:

- vs -

Case No. 3:15-cv-389
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

JASON BUNTING, Warden,
Marion Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS ON MOTION TO AMEND
THE JUDGMENT

This habeas corpus case is before the Court on Petitioner David Farmer’s Motion to Alter
or Amend the Judgment (ECF No. 9). As a post-judgment matter, the Motion is deemed referred
to the Magistrate Judge for report and recommendations under 28 U.S.C. § 636(b)(3).
The Motion does not contain a representation of its mailing date, but was purportedly
signed on December 28, 2015. Id. at PageID 36. That makes the Motion timely under Fed. R.
Civ. P. 59 because judgment was entered on December 22, 2015 (ECF No. 8).
A motion under Fed. R. Civ. P. 59(e) is not an opportunity to reargue a case. Sault Ste.
Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)(citation omitted).
Thus, parties should not use them to raise arguments which could and should have been made
before judgment issued. Id. Motions under Rule 59(e) must establish either a manifest error of
law or must present newly discovered evidence. Id. Petitioner does not present any new
evidence, so the Motion must be evaluated under the manifest error of law branch of the Engler
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test.
Petitioner’s motion for leave to file a delayed motion for new trial in the Montgomery
County Common Pleas Court was grounded in his claim that his trial was unfair because he was
not given impeachment evidence related to the State’s DNA expert in the case, Amy Rismiller.
In recommending dismissal, the Magistrate Judge noted that Farmer had admittedly discovered
the existence of this evidence – that Rismiller was previously disciplined for mishandling of
DNA evidence in another case – when he read State v. Scott, 2010-Ohio-1919, 2010 Ohio App.
LEXIS 1576 (2nd Dist. Apr. 30, 2010)(Report, ECF No. 3, PageID 17). As the Ohio courts
noted, that decision was publicly released more than three years before Farmer filed his motion
in the trial court. They found that to be an unreasonably long time to wait to file the delayed
motion for new trial. Id. The Report concluded that the Ohio rule requiring a motion for new
trial to be filed without unreasonable delay was a clearly established independent state
procedural rule that had been enforced against Farmer. Id. at PageID 17-18. It also concluded
that Farmer’s excuses for the delay were insufficient and recommended dismissal with prejudice.
Id. at PageID 20. After Farmer objected and Judge Rose recommitted the case, the Magistrate
Judge reached the same conclusion on reconsideration (Supplemental Report, ECF No. 6). Judge
Rose adopted both Reports in the judgment Farmer now seeks to alter (ECF No. 8).
Farmer claims Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d 272
(2012), excuses his procedural default (Motion, ECF No. 9, PageID 34). In Martinez the
Supreme Court held, with respect to the adjudication of ineffective assistance of trial counsel
claims in Arizona, that:
[W]hen a State requires a prisoner to raise an ineffectiveassistance-of-trial-counsel claim in a collateral proceeding, a
prisoner may establish cause for a default of an ineffectiveassistance claim in two circumstances. The first is where the state
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courts did not appoint counsel in the initial-review collateral
proceeding for a claim of ineffective assistance at trial. The second
is where appointed counsel in the initial-review collateral
proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v. Washington, 466 U.
S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome the
default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim
has some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003) (describing standards for
certificates of appealability to issue).
132 S. Ct. at 1318-1319.

In Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911, 185 L. Ed. 2d

1044 (2013), the Court extended Martinez to the Texas system. The Sixth Circuit has not yet
decided whether Martinez and Trevino apply to the Ohio post-conviction process. See McGuire
v. Warden, 738 F.3d 741 (6th Cir. 2013).
Assuming they do apply, they are of no assistance to Farmer. Ohio distinguishes between
ineffective assistance of trial counsel claims which are provable from the record on direct appeal
and those which depend on evidence outside the appellate record. The former class of claims
must be brought in the direct appeal while the latter must be brought in a petition for postconviction relief under Ohio Revised Code § 2953.21. See McGuire, 738 F.3d at 751-52.
Martinez and Trevino do not speak to Farmer’s delay in bringing his delayed motion for new trial
because there is no constitutional right to the assistance of counsel in preparing for and filing
such a motion.
Farmer argues this Court has failed to follow House v. Bell, 547 U.S. 518 (2006), but
does not say how. The Supplemental Report compared the evidence of actual innocence in
House with what Farmer has presented here and concluded Farmer had not made a persuasive
claim of actual innocence (ECF No. 6, PageID 27-28). Farmer has not shown how that analysis
constitutes a “manifest error of law.”
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As an alternative to amending the judgment to grant habeas relief, Farmer argues for a
certificate of appealability (ECF No. 9, PageID 35). A certificate was denied by Judge Rose
upon finding that reasonable jurists would not disagree with the conclusions in the Report and
Supplemental Report. While Farmer recites the standards for a certificate of appealability, it
does not show how any other jurists have disagreed with the conclusion reached.
Farmer relies on Castleberry v. Brigano, 349 F.3d 286 (6th Cir 2003), as somehow critical
of the process followed here. Castleberry raised habeas corpus claim under Brady v. Maryland,
373 U.S. 83 (1963), about three sets of witness statements withheld from him by the State. The
Sixth Circuit found that only conflicting witness testimony was presented at Castleberry’s
murder trial, “no physical or forensic evidence was introduced to link Castleberry to the crime.”
349 F.3d at 289. Given that state of the trial evidence, the court concluded the withheld
statements were material and issued the writ.
In Castleberry, the Sixth Circuit ruled on the merits of the Brady claims. The opinion
does not suggest there was any procedural default issue in the case. Thus Castleberry does not
show any manifest error of law in this Court’s decision, which focuses on Farmer’s procedural
default and not the materiality of the Rismiller impeachment evidence.
Therefore it is respectfully recommended that the Motion to Alter or Amend the
judgment be DENIED. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and therefore should not be permitted to

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proceed in forma pauperis.

January 11, 2016.
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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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