Brown v. Warden, London Correctional Institute

Filing 47

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Brown's Objections do not show that the Report contains clearly erroneous findings of fact or errors of law. It is therefore respectfully recommended that the Objections be overruled and that the Peti tion be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and that the Court certify to the Sixth Circuit that any appeal wo uld be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 8/20/2021. Signed by Magistrate Judge Michael R. Merz on 8/6/2021. (srb)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 3:20-cv-00113-MJN-MRM Doc #: 47 Filed: 08/06/21 Page: 1 of 8 PAGEID #: 2212

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LARRY E. BROWN, II,
Petitioner,

:

- vs -

Case No. 3:20-cv-113
District Judge Michael J. Newman
Magistrate Judge Michael R. Merz

NORMAN ROBINSON, Warden,
London Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Larry Brown under 28 U.S.C. § 2254,
is before the Court on Petitioner’s Objections (ECF No. 44) to the Magistrate Judge’s Report and
Recommendations recommending dismissal of the case (the “Report,” ECF No. 43). The Warden
has responded to the Objections (ECF No. 45) and District Judge Newman has recommitted the
case for reconsideration in light of the Objections (ECF No. 46).
The Report concluded that all Brown’s Grounds for Relief were procedurally defaulted
except his claim that he received ineffective assistance of trial counsel when his trial attorney,
James Thomas, failed to present evidence related to barium poisoning (Report, ECF No. 43,
PageID 2116-17).
Petitioner’s Objections proceed for seventy-three pages without any subheads or other
organizing features, but are primarily devoted to claiming error in the Report’s procedural default
analysis. This Supplemental Report thus proceeds to consider the Objections seriatim.
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Brown begins his Objections by asserting the Court should accept all the factual allegations
he has made about deficient attorney performance because those facts “were never attacked as not
being true” (ECF No. 44, PageID 2125). As authority for this proposition, he relies on Agan v.
Dugger, 835 F.2d 1337 (11th Cir. 1987), which Brown says held a district court must accept all
well-pleaded facts in a complaint as true. The language which Brown purports to quote from Agan
does not appear anywhere in that opinion. And it has never been the law that a habeas court must
accept as true all factual allegations made by a petitioner in post-conviction proceedings. Rather
we are bound to accept findings of fact made by the state courts unless a petitioner rebuts the
presumption those findings are correct by clear and convincing evidence. 28 U.S.C. § 2254(e).
Petitioner continues with innumerable assertions of fact which are not backed up by any
reference to the State Court Record. For example, on the second page of the Objections, he asserts
“Petitioner was ordered to give Nicole all of his SSDI, $1,250.00 a month, and the children’s check
of $750.00.” (PageID 2126). No record reference at all is given for this factual assertion. If a
litigant relies on factual assertions shown by the State Court Record, the local Rules of this Court
require that he provide a citation to the record. S. D. Ohio Civ. R. 7.2(b)(3). On the other hand if
factual assertions are not backed up by record citations and are essentially new factual allegations
a litigant wants the Court to accept as fact, we cannot receive new evidence on the merits in habeas
corpus cases. Cullen v. Pinholster, 563 U.S. 170 (2011).
The Report concluded Brown had procedurally defaulted his direct appeal claims by not
appealing to the Ohio Supreme Court (ECF No. 43, PageID 2106). Brown again asserts, as he did
in his Reply, that Attorney Christopher Pagan was paid and instructed to do so, but he offers no
proof, just his own bare allegation.

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The Report concluded Brown’s claims of ineffective assistance of appellate counsel made
in his Application for Reopening were procedurally defaulted because the Twelfth District Court
of Appeals found the Application was extremely untimely (ECF No. 43, PageID 2112). Brown
objects by citing 1994 Ohio appellate decisions saying the Ohio courts had not reached a consensus
on what constituted good cause for filing late (Objections, ECF No. 44, PageID 2130). While that
may have been true in 1994, the situation had changed by the time Brown’s 26(B) application was
filed in July 2019 and indeed many years before that. The Sixth Circuit has held:
This court's precedents guide our application of the Maupin test for
procedural default when a Rule 26(B) motion has been denied for
untimeliness. By the time Hoffner filed his Rule 26(B) motion in
June 2006, "it was well established that claims of ineffective
assistance of appellate counsel must be raised in a motion for
reconsideration before the Ohio Court of Appeals." Monzo v.
Edwards, 281 F.3d 568, 577 (6th Cir. 2002) (considering whether
Rule 26(B) was an independent and adequate state procedural rule
as of May 1998). Since at least 1996, Ohio law has provided
sufficient guidance on what constitutes a "good cause" for a late
filing under Rule 26(B). Id. at 578. Furthermore, as of January 1996,
"the time constraints of Rule 26(B) were firmly established and
regularly followed." Parker v. Bagley, 543 F.3d 859, 861 (6th Cir.
2008) (discussing Fautenberry v. Mitchell, 515 F.3d 614, 641 (6th
Cir. 2008)) (emphasis omitted). Although we have, in prior cases,
found Rule 26(B) not to be an adequate and independent ground on
which to find procedural default, those precedents are not applicable
here because Rule 26(B) was firmly established and regularly
followed by June 2006. n4 See id. at 862 (applying the "firmly
established and regularly followed" requirement "as of the time Rule
26(B) was to be applied"). Thus, we conclude that Hoffner has
procedurally defaulted his claims of ineffective assistance of
appellate counsel.
Hoffner v. Bradshaw, 622 F.3d 487, 504-505 (6th Cir. 2010).
Brown also argues the State waived any timeliness objection by not responding to the 26(B)
Application, but cites only precedent about the waiver of affirmative defenses by not pleading
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them (Objections, ECF No. 44, PageID 2130). While it is true generally that an affirmative defense
to a claim in a complaint is lost by not timely filing it, that is not true of the enforcement of other
deadlines. Put another way, lack of timely filing of a 26(B) application is not an “affirmative
defense.” Brown cites no precedent to the effect that Ohio courts of appeals may not enforce time
limits on filing 26(B) applications in the absence of State opposition.
Brown then spends the next five pages arguing how asserted inconsistencies between the
victim’s oral testimony and her notebooks prove he is actually innocent (PageID 2131-35). The
victim was vigorously cross-examined. Thereafter it was for the jury to resolve any inconsistencies
in the testimony.
After this portion of the Objections, Brown repeats, almost verbatim, his argument about
the timeliness of his 26(B) application (PageID 2135-39).
Brown then writes at length against the Twelfth District’s conclusion that his argument
about an allegation of sexual misconduct on the property of Dan Day was barred by res judicata
from being considered in Brown’s first post-conviction proceeding (PageID 2139-45). Brown’s
argument is that the Affidavit of Dan Day which supported his post-conviction petition did not
exist before that motion was filed. Since it is material outside the appellate record, Brown claims
the benefit of the rule that when an ineffective assistance of trial counsel claim depends on such
material, the claim is not barred by res judicata.
The difficulty with this argument is that it assumes, contrary to the Twelfth District’s
finding, that the Day Affidavit was necessary to support the ineffective assistance of trial counsel
claim. Rather, the Twelfth District concluded the claim was available on direct appeal because it
was known to both Brown and his trial attorney and the substance of the claim, albeit not the Day
Affidavit itself, was available on direct appeal from the argument made in favor of the motion for

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new trial. The State v. Perry res judicata rule would have little utility in promoting finality in
criminal cases if it could be avoided by presenting some additional evidence in post-conviction.
The question is not whether all the possible evidence on an ineffective assistance of trial counsel
claim was available on direct appeal, but whether the claim itself could have been presented and
decided.
Brown next asserts it would be a miscarriage of justice to apply Ohio’s res judicata doctrine
to his ineffective assistance of trial counsel claim as the court of appeals did (Objections, ECF No.
44, PageID 2135). The Court does not have authority to apply a free-floating perception of
miscarriage of justice exception to procedural default doctrine. The Sixth Circuit has repeatedly
held that Ohio’s doctrine of res judicata in criminal cases, enunciated in State v. Perry, 10 Ohio
St. 2d 175 (1967), is an adequate and independent state ground of decision. Durr v. Mitchell, 487
F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell,
268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent,
17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); see also Van Hook v. Anderson, 127 F. Supp.
2d 899, 913 (S.D. Ohio 2001).
Brown did not appeal from the Court of Appeals to the Ohio Supreme Court. He claims
attorney Christopher Pagan was paid to file the appeal and did not do so. The Report noted this
claim was unsupported by any evidence. Brown objects that this Court is bound to accept his
statements of fact, made in a pleading, as true (Objections, ECF No. 44, PageID 2136, citing Agan
v. Dugger, 835 F.2d 1337 (11th Cir. 1987)). As noted above, the language Brown purports to quote
from Agan does not appear in that opinion, nor does the opinion contain, as Brown represents it
does, a citation to Haines v. Kerner, 404 U.S. 519 (1972). In Agan the Eleventh Circuit held a
death row inmate was entitled to a federal habeas evidentiary hearing on his claim of incompetence

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to stand trial and ineffective assistance of trial counsel applying the standard of Townsend v. Sain,
372 U.S. 293, 313 (1963). Townsend was effectively eliminated as controlling precedent by
Wainwright v. Sykes, 433 U.S. 72 (1977), by § 2254(e) of the AEDPA in 1996, and then by Cullen
v. Pinholster, 563 U.S. 170 (2011).
Brown then turns to another lengthy discussion of why his 26(B) Application was timely
(Objections, ECF No. 44, PageID 2136-39.) No further analysis of this argument is needed beyond
what is provided in the original Report.
Brown next objects to the Report’s conclusion, adopting that of the trial court and the
Twelfth District Court of Appeals, that the claims raised in Brown’s petition for post-conviction
relief were barred by res judicata because they could have been raised on direct appeal (Report,
ECF No. 43, PageID 2113-14). Brown objects that when a state court misapplies its own law of
res judicata, the resulting procedural default is excused (Objections, ECF No. 44, PageID 213940, citing Davis v. Bradshaw, 900 F.3d 315 (6th Cir. 2018). The Davis Court upheld the lower
federal court’s reliance on a state court finding of procedural default, but noted its own prior
decision in Post v. Bradshaw, 621 F.3d 406 (6th Cir. 2010), that “when a state erroneously relies
upon its own rule of procedural default, the [habeas] claim is not barred.” Id. at 423. Post does
indeed support that general proposition, citing prior Sixth Circuit law to that effect, Hill v. Mitchell,
400 F.3d 308, 314 (6th Cir.2005), and Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir.2001)). But
Brown does not present a convincing case that the Twelfth District erred in applying Ohio res
judicata law. The Twelfth District expressly found that
the record reflects the substance of the Day Evidence and trial
counsel's failure to present it at trial or to seek a continuance or
recess of the trial to investigate B.H.'s surprise claim that Brown
sexually abused her at Day's property. Therefore, Brown raised or
could have raised the issue on direct appeal.

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(State v. Brown, Case No. CA2017-09-10 (12th Dist. Aug. 20, 2018), copy at State Court Record,
ECF No. 23, Ex. 26, ¶ 22). An Ohio habeas litigant cannot avoid operation of the Perry res judicata
rule by simply adding some new evidence to the record. In this instance we do not have speculation
by an outside court as to what could have been decided on direct appeal. Instead, the very court
which had before it the record in question decided it could have considered this question about the
Day evidence on that record. Here the trial attorney summarized the Day evidence in arguing for
a new trial and it is not evident that Day’s affidavit changed this issue materially.
At PageID 2152, Brown makes an actual innocence claim to excuse his procedural defaults.
However, he adverts to no new evidence of the type or quality required for proving actual
innocence under Schlup v. Delo, 513 U.S. 298 (1995).
Brown then turns to discussing the Twelfth District’s decision on appeal from denial of his
motion for new trial (Objections, ECF No. 44, PageID 2152, et seq.) Brown responds at great
length to the Twelfth District’s decision, but the gravamen of that decision is that Brown had not
proven he was unavoidably prevented from gathering the new evidence within the time allowed
by Ohio law (120 days) for filing a motion for new trial or the claims were barred by res judicata
(State v. Brown, Case No. CA2019-04-006 (12th Dist. Mar. 16, 2020), copy at State Court Record,
ECF No. 23, Ex. 44). Brown argues that the Twelfth District reached the merits of the underlying
claims and they are thus preserved for merits review in this Court. That is a mischaracterization
of what occurred. To the extent the Twelfth District discussed the claims, it was to show that they
could have been discovered earlier or that they could in fact have been presented on direct appeal.
Petitioner concludes by saying that due process requires he be given an opportunity to be
heard (Objections, ECF No. 44, PageID 2195). Petitioner’s claims have been repeatedly heard by
the Ohio courts. His entitlement to further hearing in this Court is governed by procedural default

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doctrine. As the Report concluded, all of Brown’s claims except the barium poisoning ineffective
assistance of trial counsel claim are barred by procedural default. As to this latter claim, the judge
who tried the case after Brown waived a jury trial found the barium poisoning evidence had little
value and the decision not to present it was a reasonable trial tactic. Brown invites us, as he did
the Twelfth District, to engage in the “hindsight” forbidden by Strickland v. Washington, 466 U.S.
668 (1984), and imagine that the trier of fact who says he would not have been persuaded would
in fact have been persuaded.
Brown’s Objections do not show that the Report contains clearly erroneous findings of fact
or errors of law. It is therefore respectfully recommended that the Objections be overruled and
that the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with
this conclusion, it is also recommended that Petitioner be denied a certificate of appealability and
that the Court certify to the Sixth Circuit that any appeal would be objectively frivolous and should
not be permitted to proceed in forma pauperis.

August 6, 2021.
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. Because this document is being served by mail, three days are added under
Fed.R.Civ.P. 6, but service is complete when the document is mailed, not when it is received. 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. 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.

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