Taylor v. Warden, Lebanon Correctional Institution

Filing 18

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTION TO AMEND - Objections to R&R due by 11/14/2016. Signed by Magistrate Judge Michael R. Merz on 10/27/2016. (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
DARREN TAYLOR,
Petitioner,

:

- vs -

Case No. 3:16-cv-101
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

TOM SCHWEITZER, Warden,
Lebanon Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON
MOTION TO AMEND

Darren Taylor brought this habeas corpus action to obtain relief from a conviction he
asserts is unconstitutional because “the trial court failed to suppress the evidence obtained from
the warrantless search for and of his cell phones, including, but not limited to the GPS Data
obtained therein.” (Petition, ECF No. 1-1, PageID 12.) The original Report recommended
dismissal under Stone v. Powell, 428 U.S. 465 (1976), because Taylor’s trial attorney had filed a
motion to suppress which was overruled after a hearing and then affirmed on appeal. State v.
Taylor, 2014-Ohio-2550, 2014 Ohio App. LEXIS 2502 (2nd Dist. June 13, 2014). This meets the
Sixth Circuit criteria for a full and fair opportunity to litigate a Fourth Amendment claim under
Riley v. Gray, 674 F.2d 522 (6th Cir. 1982).
In his Objections, Taylor blamed his trial attorney for not obtaining and presenting at the
hearing (January 8, 2013) additional evidence on the suppression issues (Objections, ECF No. 5,

1

PageID 35). It was not until two and one-half years later on May 11, 2015, that Taylor submitted
“both information and affidavit attesting to the actual ownership, usage, and service, of the cell
phones in question that establishes petitioner's expectation of privacy and of which trial and
appellate counsel failed to present respectively.” Id. This information was submitted to the Ohio
Supreme Court two months after it had declined jurisdiction over his appeal. Taylor then cited
interpretations of Stone’s “full and fair opportunity” language from a number of circuit courts
other than the Sixth and asked for an evidentiary hearing under Townsend v. Sain, 372 U.S. 293
(1963).
In a Supplemental Report, the Magistrate Judge noted this Court is bound by the
standards for full and fair opportunity set in Riley, supra, and that the Sixth Circuit had held that
an evidentiary hearing was not necessary in every case to satisfy that standard (Supplemental
Report, ECF No. 7, PageID 46, citing Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013)).
The Court adopted the Reports and dismissed the case (ECF No. 11). The instant Motion
under Fed. R. Civ. P. 59(e) followed. Taylor again asserted that the “critical information” he
needed to substantiate his Fourth Amendment claim “was not made available until after October
25, 2014, . . .” (Motion, ECF No. 13, PageID 66). The Magistrate Judge recommended denying
the instant motion, noting that Taylor’s claims of ineffective assistance of trial counsel and
ineffective assistance of appellate counsel had never been presented to the state courts nor
pleaded in the Petition (ECF No. 14, PageID 71).
Mr. Taylor has now objected again (ECF No. 16) and Judge Rice has recommitted the
Motion for Reconsideration in light of the Objections (Recommittal Order, ECF No. 17). He
reminds the Court that he had previously asked for an evidentiary hearing for factual
2

development or for this Court to provide him with the state court record and stay this case until
he has exhausted available state relief (ECF No. 16, citing ECF No. 10, PageID 60). He also
seeks further findings under Fed. R. Civ. P. 52(b). Id. at PageID 76. He again emphasizes that
no court has considered the “critical and substantive information” which he filed with the Ohio
Supreme Court after it had declined jurisdiction. Id. at PageID 77. He then against cites
Townsend v. Sain, supra, about holding an evidentiary hearing in federal habeas. Id. at PageID
78.

Analysis

Petitioner wants this Court to consider his “critical and substantive” proof regarding cell
phones and then make a de novo determination of his Fourth Amendment claims. He admits that
this information was never presented to any of the state courts before final judgment declining
jurisdiction in the Ohio Supreme Court.
This Court cannot consider this new post-judgment evidence. Townsend v. Sain, supra,
on which Mr. Taylor relies, was displaced in habeas corpus practice by the Antiterrorism and
Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"). As
the AEDPA was interpreted by the Supreme Court in Cullen v. Pinholster, 563 U.S. 170 (2011),
a federal court’s review of a state court decision under 28 U.S.C. § 2254(d)(1) is strictly limited
to “review of the state court record,” and that evidence acquired through use of an evidentiary
hearing may not be considered. Id. at 182.

3

Because the evidence on which Mr. Taylor relies was not part of the record on direct
appeal, he might be able to persuade a state court to consider it as part of a petition for postconviction relief under Ohio Revised Code § 2953.21. In such a petition he could also raise his
ineffective assistance of trial counsel claim, if he can overcome the statute of limitations bar of
Ohio Revised Code § 2953.23.

But on the present Petition which raises only a Fourth

Amendment claim, Petitioner is not entitled to habeas corpus relief. Neither the Sixth Circuit nor
the Supreme Court has ever held that “full and fair opportunity” includes a right to post-appeal
consideration of new evidence. This Court’s judgment therefore contains no manifest error of
law.
October 27, 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).

4