Campbell v. Warden

WILLIAM CAMPBELL, Petitioner, v. WARDEN, London Correctional Institution, Respondent.

Case No. 1:14-cv-13

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

November 30, 2015

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

DECISION AND ORDER ON POST-DISCOVERY MOTION TO EXPAND THE RECORD

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner's Motion to Expand the Record, filed after completion of discovery (ECF No. 52) which Respondent opposes (ECF No. 55) and in support of which Petitioner has filed a Reply (ECF No. 57).

A motion to expand the record is a non-dispositive pre-trial motion within the decisional authority of a Magistrate Judge in the first instance.

Campbell pleads the following grounds for relief:

First Claim for Relief: Petitioner's rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Miranda v. Arizona, 384 U.S. 436 (1966) were violated when evidence of Defendant's post-Miranda silence was admitted into evidence during the state's case-in-chief.

Second Claim for Relief: The trial court committed prejudicial error contrary to the double jeopardy clause of the United States Constitution when it sentenced Petitioner to consecutive terms of imprisonment for OVI and OVI-based aggravated vehicular homicide.

Third Claim for Relief: The state committed numerous discovery violations in violation of Petitioner's rights to due process and a fair trial as provided under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

Fourth Claim for Relief: Statements made by the prosecutor constituted prosecutorial misconduct thereby denying Petitioner a fair trial and due process of law under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution.

Fifth Claim for Relief: Trial counsel rendered ineffective assistance during trial in violation of Petitioner's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

I. Trial counsel failed to object to the numerous Doyle violations.

II. Trial Counsel rendered deficient performance, to Campbell's prejudice, during trial by failing to use available exculpatory/impeachment evidence and by failing to investigate the evidence.

A. Rear view mirror evidence not presented.

B. Testimony and statements regarding the sweater/jacket worn by Hayes not supported by the evidence.

C. State expert testified beyond scope of expertise without objection.

D. Evidence regarding chest injuries was not presented.

E. Evidence explaining knee injuries was not presented.

F. Evidence explaining blood on the glove box was not presented.

G. Evidence regarding location of shoes was not presented.

H. Evidence regarding the position of Hayes' body was not presented.

I. Trial counsel failed to properly challenge the testimony of the state's expert and failed to properly utilize the defense's expert.

III. Trial counsel failed to obtain and investigate time-stamped photos and autopsy photos.

IV. Trial counsel failed to object to the prosecutorial misconduct.

Sixth Claim for Relief: Ineffective assistance of Appellate counsel in violation of Petitioner's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

I. Appellant's rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Miranda v. Arizona, 384 U.S. 436 (1966) were violated when evidence of Appellant's post-Miranda silence was admitted into evidence during the state's case-in-chief, and trial counsel rendered ineffective assistance of counsel in violation of Appellant's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution by not objecting to the admission of the evidence.

II. The trial court committed prejudicial error when it sentenced Appellant to consecutive terms of imprisonment when it sentenced Appellant to consecutive terms of imprisonment for allied offenses of similar import.

III. The state committed numerous discovery violations in violation of Appellant's rights to due process and a fair trial as provided under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution, and trial counsel rendered ineffective assistance by failing to object to the discovery violations in violation of Appellant's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.

IV. Statements made by the prosecutor constituted prosecutorial misconduct thereby denying Appellant a fair trial and due process of law under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution, and Sections 10and 16, Article I of the Ohio Constitution, and trial counsel rendered ineffective assistance by failing to object to the prosecutorial misconduct in violation of Appellant's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.

V. Trial counsel rendered ineffective assistance during trial in violation of Appellant's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.

Seventh Claim for Relief: The convictions against Petitioner constitute a denial of due process because they are based on legally insufficient evidence and because Petitioner is actually innocent of the charges against him.

(Petition, ECF No. 1, PageID 2-5.)

Procedural History in the Ohio Courts

In a single-vehicle crash on October 1, 2008, Tina Hayes was killed and Petitioner William Campbell was injured. A Hamilton County grand jury indicted Campbell on two counts of aggravated vehicular homicide in violation of Ohio Revised Code § 2903.06(A)(1)(b) and one count in violation of Ohio Revised Code § 2903.06(A)(1)(a)(Counts 1, 2, and 5), two counts of operating a motor vehicle under the influence of alcohol, a drug of abuse, or a combination thereof, in violation of Ohio Revised Code § 4511.19(A)(1)(3) and § 4511.19(A)(1)(f), respectively Counts 3 and 4; and one count of failure to comply with the order or signal of a police officer in violation of Ohio Revised Code § 2921.331(B)(Count 6).

A trial jury returned guilty verdicts on the first five counts, but not guilty on Count 6. After his motion for new trial was denied, Campbell appealed to the First District Court ofAppeals raising four assignments of error which were all overruled.¹ State v. Campbell, Case No. C-090875 (1^st Dist. Mar. 4, 2011)(unreported, copy at State Court Record, ECF No. 8-3, PageID 505, et seq.) The Ohio Supreme Court declined to exercise jurisdiction over a subsequent appeal. State v. Campbell, 128 Ohio St. 3d 1558 (2011).

Campbell filed pro se a petition for post-conviction relief under Ohio Revised Code § 2953.21. Judge Winkler denied the petition, holding that Campbell's claims of ineffective assistance of trial counsel could have been raised on direct appeal (Entry, State Court Record, ECF No. 8-4, PageID 673). Campbell appealed, but the appeal was dismissed for lack of a final appealable order in that Judge Winkler had not filed findings of fact and conclusions of law. State v. Campbell, Case No. C-100705 (1^st Dist. Aug. 3, 2011)(unreported, copy at State Court Record, ECF No. 8-4, PageID 723-25). Campbell filed a second post-conviction petition which the trial court also denied. The First District affirmed. State v. Campbell, Case No. C-120016 (1^st Dist. Jun. 29, 2012)(unreported, copy at ECF No. 8-4, PageID 872-74). The Ohio Supreme Court declined to exercise jurisdiction over an appeal. State v. Campbell, 133 Ohio St. 3d 1414 (2012).

On May 31, 2011, Campbell filed an application under Ohio R. App. P. 26(B) to re-open his direct appeal on eighteen asserted grounds of ineffective assistance of appellate counsel. Campbell sought twice to supplement the Application, but the court of appeals disallowed the supplements. The First District granted reopening only on the first omitted assignment of error and eventually granted partial relief, remanding for resentencing. After receiving an aggregate sentence of twenty years on remand, Campbell again appealed but the First District affirmed. State v. Campbell, Case No. C-130251 (1^st Dist. May 16, 2014)(unreported, copy at ECF No. 13-1, PageID 2271-74). The Ohio Supreme Court again declined jurisdiction. State v. Campbell,140 Ohio St. 3d 1441 (2014). Campbell then filed his Petition for Writ of Habeas Corpus in this Court on January 3, 2014.

ANALYSIS

General Standard for Expansion of the Record

Expansion of the record beyond what comes from the state courts is governed by Rule 7 of the Rules Governing § 2254 Cases which provides in pertinent part:

(a) In General. If the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional material related to the petition. The judge may require that these materials be authenticated.

(b) Types of Materials. The materials that may be required include letters predating the filing of the petition, documents, exhibits, and answers under oath to written interrogatories propounded by the judge. Affidavits may also be submitted and considered as part of the record.

Petitioner's Motion

As authority for expansion of the record here, Petitioner cites a number of cases predating adoption of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA")². When Rule 7 was adopted in 1976, the Advisory Committee viewed expansion of the record as an intermediate step between a pre-hearing dismissal and an evidentiary hearing, eliminating the need for such a hearing in many cases. 1976 AdvisoryCommittee Note. The Rules Committee quoted Harris...