Farmer v. Warden, Marion Correctional Institution

Filing 6

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is again respectfully recommended that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealabili ty 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 12/4/2015. Signed by Magistrate Judge Michael R. Merz on 11/17/2015. (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.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus action is before the Court on Petitioner’s Objections (ECF No. 4) to
the Magistrate Judge’s Report and Recommendations recommending the Petition be dismissed
(the “Report,” ECF No. 3). Judge Rose has recommitted the case for reconsideration in light of
the Objections (ECF No. 5).
Farmer is serving a sentence of twenty years to life on his conviction for two counts of
rape and one count of gross sexual imposition on a young child. His conviction was affirmed on
appeal. State v. Farmer, 2009-Ohio-6013, 2009 Ohio App. LEXIS 5052 (2nd Dist. Nov. 13,
2009). His conviction therefore became final on direct appeal forty-five days later on December
28, 2009, when his time to appeal to the Ohio Supreme Court expired. Farmer did nothing until
three and one-half years later when he filed a motion for leave to file a delayed motion for new
trial under Ohio R. Crim. P. 33(B).
In order to be allowed to file a motion for new trial more than 120 days after verdict, a
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defendant must show “by clear and convincing proof that the defendant was unavoidably
prevented from the discovery of the evidence upon which he must rely. . . .” Ohio R. Crim. P.
33(B). The Common Pleas Court found that the relevant new evidence – prior disciplinary
history of the State’s DNA expert witness – was discoverable from the source in which Farmer
found it as of April 30, 2010, and Farmer had not explained his three-year delay. The Second
District affirmed that finding. State v. Farmer, 2014-Ohio-2812, 2014 Ohio App. LEXIS 2756
(2nd Dist. June 27, 2014). After being denied review by the Ohio Supreme Court, Farmer filed
his Petition for Writ of Habeas Corpus here October 27, 2015 (ECF No. 2).
Farmer pleads one ground for relief:
Ground One: Violation of constitutional amendments 6 and 14
that show an unreasonable application of Supreme Court law.
Supporting Facts: Petitioner’s due process rights were violated
where state prosecutor(s) breached its duty by acting in
combination with an impaired advocate to withhold exculpatory
and impeachment evidence that was invalid and unreliable, upon
which, more likely than not, no reasonable juror would have
[otherwise] convicted Petitioner, absent the unreliable evidence,
and where state court decision(s) were contrary to Supreme Court
precedent.

(Petition, ECF No. 2, PageID 6.)
The supporting facts as Farmer pleads them might be read as stating a claim for
prosecutorial misconduct under Brady v. Maryland, 373 U.S. 83 (1963), or a claim of ineffective
assistance of trial counsel under Strickland v. Washington, 466 U.S. 668 (1984). However, as
the Report notes, Farmer did not fairly present either of these constitutional claims to the state
courts and they are thus barred by his procedural default.

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There is no free-standing federal constitutional right to a new trial in a state criminal case
upon the discovery of new evidence. Instead, the relevant federal constitutional right is the right
to a fair trial. To prevail in a habeas corpus case complaining of denial of a new trial, a
petitioner must show that the trial he actually received was fundamentally unfair in the absence
of the new evidence. Pudelski v. Wilson, 576 F.3d 595, 611 (6th Cir. 2009), citing Fleming v.
Metrish, 556 F.3d 520, 535 (6th Cir. 2009); Baze v. Parker, 371 F.3d 310, 324 (6th Cir. 2004).
The “new” evidence on which Farmer relies is that the DNA expert at his trial had
previously been disciplined regarding her handling of DNA evidence in another case. The
Common Pleas Court denied Farmer’s motion for leave to file a delayed motion for new trial on
three bases:
(1) that her name and contact information were provided in
discovery and defense counsel could have questioned her about her
DNA handling practices before trial; (2) that the Scott decision was
issued on April 30, 2010 and Farmer had failed to explain why he
waited until May 23, 2013 to seek leave to file a delayed new-trial
motion; and (3) that the non-disclosure of Rismiller's past
discipline did not materially affect his substantial rights or deny
him a fair trial in any event.
State v. Farmer, supra, ¶ 6. Because a late movant for new trial must show he was unavoidably
prevented from discovering the evidence in a more timely fashion, the first of these three reasons
amounts to a finding of fact that Farmer was not unavoidably prevented from learning of the
prior discipline even prior to trial because she was disclosed as a State witness. The second of
these reasons amounts to a finding that Farmer had not shown why he waited three years after
discovering the prior discipline to file his motion. The Second District affirmed on these two
state law grounds. Those grounds are both adequate and independent state procedural grounds
for decision that are independent of federal law. Therefore on each one of these bases, Farmer
has procedurally defaulted on his claim, as the Report found (ECF No. 3. PageID 17).
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In addition, of course, there was the third Common Pleas basis, to wit, that the
nondisclosure of the prior discipline did not deprive Farmer of a fair trial. The Report concluded
that Farmer had not shown that conclusion was contrary to or an objectively unreasonable
application of any Supreme Court precedent. Id. at PageID 19.
The Report noted that Farmer “attempts to excuse his procedural defaults by claiming
actual innocence (Petition, ECF No. 2, PageID 10). However, he does nothing more to
Demonstrate actual innocence than to make the conclusory claim.” Id. at 19. The Report then
noted that credible claims of actual innocence must be supported “with new reliable evidence -whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence -- that was not presented at trial.” Id. quoting Schlup v. Delo, 513 U.S. 298,
324 (1995).
Farmer’s Objections focus on his actual innocence claim. He relies strongly on the postSchlup decision in House v. Bell, 547 U.S. 518 (2006). Farmer is correct that under House, the
new evidence must be weighed against all the other evidence in the case to determine whether
any reasonable juror could have found guilt beyond a reasonable doubt.
In determining whether an applicant has met the requirements for
establishing a cognizable claim of actual innocence, we apply the
same actual-innocence standard developed in Schlup v. Delo, 513
U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995), for reviewing
a federal habeas applicant's procedurally defaulted claim. Souter,
395 F.3d at 596. Under the Schlup standard, as adopted in Souter,
the petitioner "must show that it is more likely than not that no
reasonable juror would have found [him] guilty beyond a
reasonable doubt." Schlup, 513 U.S. at 327; see id. at 329 ("[T]he
standard requires the district court to make a probabilistic
determination about what reasonable, properly instructed jurors
would do. Thus, 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."); see also Souter, 395
F.3d at 602. "[T]o be credible a gateway claim requires new
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reliable evidence--whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence--that
was not presented at trial." House v. Bell, 547 U.S. 518, 126 S. Ct.
2064, 2077, 165 L. Ed. 2d 1 (2006) (internal quotation marks
omitted). We must consider "all the evidence, old and new,
incriminating and exculpatory, without regard to whether it would
necessarily be admitted under rules of admissibility that would
govern at trial." Id. (internal quotation marks omitted).
McCray v. Vasbinder, 499 F.3d 568, 571 (6th Cir. 2007)(Sutton, J.)

But before a habeas court reaches this weighing stage, it must first find that there is
genuinely new evidence of a certain quality – “exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence.” But Farmer offers nothing of that sort here.
His “new” evidence is only evidence to impeach the credibility of the DNA expert. In House the
new evidence was that the victim’s blood on the defendant’s pants, a critical identifying piece of
evidence at trial, had probably gotten there because the pants and the vials of the victim’s blood
were shipped to the laboratory in the same box and one of the vials broke. Farmer has not
presented new evidence of the quality required by Schlup and House and thus has not satisfied
the actual innocence gateway requirements.

Conclusion

Based on the foregoing analysis, it is again respectfully recommended that the Petition be
dismissed with prejudice. 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.

November 17, 2015.
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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