Ahmed v. Houk

NAWAZ AHMED, Petitioner, v. MARC C. HOUK, Warden, Respondent

Case No. 2:07-cv-658

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

June 16, 2014

District Judge Michael H. Watson

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

Petitioner Nawaz Ahmed is before this Court on a Petition for a Writ of Habeas Corpus (Doc. No. 35), in which he advances twenty-seven grounds for relief challenging his convictions and sentences for the aggravated murders of his wife Lubaina Bhatti Ahmed, his father-in-law Abdul Bhatti, his sister-in-law Ruhie Ahmed, and his two-year-old niece Nasira Ahmed. Respondent has filed his Return of Writ (Doc. No. 61), Ahmed filed his Traverse (Doc. No. 71), and the matter is now ripe for decision.

FACTS

The facts leading to Ahmed's convictions and death sentences were found by the Ohio Supreme Court to be as follows:

In October 1998, Lubaina hired an attorney to end her marriage with [Ahmed] and to secure custody of their two children, Tariq and Ahsan. According to Lubaina's divorce attorney, [Ahmed] did not want a divorce, and consequently, it was a hostile divorce proceeding. In early February 1999, shortly after the complaint fordivorce had been filed, Lubaina was awarded temporary custody of the children and exclusive use of the marital residence. Later that month, the divorce court issued a restraining order to prevent [Ahmed] from coming near Lubaina or making harassing phone calls to her.

[Ahmed] had accused Lubaina, a physician, of having an affair with another physician, and claimed that their oldest son, Tariq, was not his. A subsequent paternity test showed that claim to be false. According to Lubaina's divorce attorney, Grace Hoffman, Lubaina had been afraid of [Ahmed] and she had called Hoffman three or four times a week, "scared [and] frustrated * * *. It just kept escalating." Lubaina had also confided to Hoffman that [Ahmed] had forced her to have sex with him during the marriage.

Tahira Kahn, one of Lubaina's sisters, corroborated that Lubaina had feared [Ahmed]. She also testified that Lubaina had told her that [Ahmed] had raped her repeatedly.

The owner of the rental home where Lubaina resided testified that Lubaina had called him in February 1999 and asked him to change the locks on the house. He stated that Lubaina had been very upset and had asked that he change them within the hour.

In March 1999, Lubaina complained to police that [Ahmed] was harassing her by telephone, but after the officer explained that the matter could be handled through criminal or civil proceedings, she decided to handle it through the ongoing divorce proceedings. The final divorce hearing was scheduled for Monday, September 13, 1999, and Lubaina had arranged for her sister Ruhie to fly in from California the Friday before to testify at the hearing.

On Friday, September 10, 1999, [Ahmed] called Lubaina's office several times. But Lubaina had instructed the medical assistants at her office to reject any phone calls from him. Then, at approximately 4:00 p.m. that day, Lubaina took [Ahmed's] call. [Ahmed] who worked and lived in Columbus, wanted Lubaina to bring the children to him for the weekend two hours earlier than planned. [Ahmed] claimed that he was planning a surprise birthday party for their youngest son. Lubaina, however, refused to change her plans and told [Ahmed] that he was using the birthday party as an excuse to inconvenience her.

Rafi Ahmed, husband of Ruhie and father of two-year-old Nasira, testified that Ruhie and Nasira had been scheduled to arrive in Columbus from California at 10:34 p.m. on Friday, September 10. Ruhie had planned to call Rafi that night when she arrived at Lubaina's home near St. Clairsville. However, since he had not heard from Ruhie, Rafi began calling Lubaina's home at 1:21 a.m., Saturday, September 11. Rafi called 20 to 25 times, but he got only Lubaina's answering machine. At approximately 3:00 a.m., he called the Belmont County Sheriff's Office.

A parking receipt found in Lubaina's van indicated that the van had entered a Columbus airport parking lot at 9:30 p.m. and exited at 11:14 p.m. on September 10, 1999.

Around 3:45 a.m. on September 11, in response to Rafi Ahmed's call, a sheriff's detective went to Lubaina's home and knocked on the doors and rang the doorbell. She got no answer. The detective also looked in the windows, but nothing at the home appeared to be disturbed.

Later that day, Belmont County Sheriff's Department Detective Steve Forro was assigned to investigate the missing persons. He recognized Lubaina's name because he was the officer who had talked to her regarding [Ahmed's] harassing phone calls. Forr called [Ahmed's] home to see if he had any information. [Ahmed] dido not answer, so Forro called Columbus police to have them check [Ahmed's] apartment. They did and found that he was not home.

Forro went to Lubaina's home at 2:18 p.m. As he walked around the outside of the house, he noticed a flicker of a car taillight through a garage window. Using a flashlight, he looked through the window and saw a van with its hatch open and luggage inside. He then saw the body of a man on the floor covered with blood.

Forro called for backup. Deputy Dan Showalter responded and entered through a side door, which he had found unlocked. He searched the house and found three more bodies on the basement floor.

Detective Bart Giesey found [Ahmed's] MCI WorldCom employee badge on the basement floor near the bodies. Records from [Ahmed's] employer, MCI WorldCom in Hilliard, Ohio, revealed that [Ahmed's] badge was last used at 7:19 p.m. on September 10, 1999.

Through several inquiries, police learned that [Ahmed] was scheduled to depart from JFK [International Airport in New York] for Lahore, Pakistan, that evening. Earlier that day, [Ahmed], through a travel agent, had booked a flight leaving for Pakistan that same evening. [Ahmed] arrived at the agent's home with both of his sons and asked if he could leave them with the agent, saying that his wife would pick them up soon. [Ahmed] wrote on the back of his and Lubaina's marriage certificate, which he gave to the agent, that he was leaving his sons to be handed over to his wife. [Ahmed] also signed his car over to the agent. The agent then drove [Ahmed] to JFK to catch his flight to Pakistan.

At 8:10 p.m., Robert Nanni, a police officer stationed at JFK, learned that [Ahmed] was a murder suspect and that he had checked in for a flight scheduled to leave for Pakistan at 8:55 p.m. [Ahmed] was located and arrested. Nanni noticed a large laceration on [Ahmed's] right thumb. Nanni read [Ahmed] his rights and called airport paramedics to attend to [Ahmed's] thumb. Among the items confiscated from [Ahmed] was an attache case containing 15 traveler's checks totaling $7,500, his will, and $6,954.34 in cash.

. . .

At trial, Dr. Manuel Villaverde, the Belmont County Coroner, testified that he had been called to the crime scene on September 11, 1999. All four victims appeared to have died from blood loss from slashes on their necks. Based on the condition of the bodies, he determined that the victims had been killed at approximately 3:00 a.m. that day, with two to four hours' variation either way.

A deputy coroner for Franklin County performed autopsies on all four victims and concluded that each victim had died from skull fractures and a large cut on the neck.

Diane Larson, a forensic scientist at the DNA-serology section of the Bureau of Criminal Identification and Investigation ("BCI"), concluded that the DNA of blood found in the kitchen of Lubaina's home matched [Ahmed's] DNA profile. The probability of someone else in the Caucasian population having that same DNA profile is 1 in 7.6 quadrillion, and in the African-American population, the probability is 1 in 65 quadrillion.

State v. Ahmed, 103 Ohio St. 3d 27, 27-30, 2004-Ohio-4190 at ¶¶ 2-20 (2004).

PROCEDURAL HISTORY¹

Ahmed was found guilty of the aggravated murders of Lubaina Bhatti Ahmed, Abdul Bhatti, Ruhie Ahmed, and Nasira Ahmed on January 25, 2001. (Appendix, Vol. 2 at 258-268.) Each count also carried a multiple-murder specification, and the count concerning Nasira's murder included the additional specification of murder of a child under the age of thirteen. Id. Ahmed was found guilty of those specifications as well. Id. Following a mitigation hearing, the jury recommended a sentence of death on each of the four aggravated murder counts, id. at 320-27, and after independently weighing the aggravating circumstances and mitigating factors, the trial court imposed a sentence of death. (Appendix, Vol. 2 at 359-371; Vol. 3 at 14-16.)

On April 29, 2002, Ahmed pursued a direct appeal to the Ohio Supreme Court, advancing nineteen propositions of law. (Appendix, Vol. 3 at 245-484.) The state supreme court denied each of Ahmed's propositions of law, State v. Ahmed, 103 Ohio St. 3d 27, 2004-Ohio-4190 (2004), and a subsequent motion to reconsider was also denied (Appendix, Vol. 3 at 429-446). The United States Supreme Court later denied Ahmed's petition for a writ of certiorari. (Appendix, Vol. 5 at 170.)

On December 2, 2004, Ahmed filed an application to reopen his direct appeal alleging his appellate counsel provided ineffective assistance when they failed to raise an additional ten propositions of law. (Appendix, Vol. 5 at 72-81.) That application, along with a motion to amend the application were denied by the Ohio Supreme Court on March 2, 2005, because Ahmed failed tocomply with the 90-day filing deadline for applications to reopen set forth in Ohio S. Ct. Prac. R. XI, Section 6(A). (Appendix, Vol. 5 at 113.)

At the same time, Ahmed was pursuing post-conviction relief in the state trial court alleging fifteen claims for relief. (Appendix, Vol. 6 at 189-233.) Ahmed later amended his petition to include a sixteenth claim for relief (Appendix, Vol. 8 at 68-71), and a seventeenth claim for relief, id. at 114-18). His petition for...