Widmer v. Warden

RYAN K. WIDMER, Petitioner, v. WARDEN, Correctional Reception Center, Respondent.

Case No. 1:14-cv-303

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

June 29, 2017

District Judge Timothy S. Black

Magistrate Judge Michael R. Merz

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner's Objections (ECF No. 37) to the Magistrate Judge's Report and Recommendations¹ ("Report" ECF No. 35). As permitted by Fed. R. Civ. P. 72, the Warden has filed a Response to those Objections (ECF No. 39). District Judge Black has recommitted the case for reconsideration in light of the Objections and Response (ECF No. 38).²

Standard of Review

The Report was filed upon consideration of the Petition (ECF No. 1), the State CourtRecord ("SCR," ECF Nos. 17, 18, 19, 20, 21, and 30), the Return of Writ (ECF No. 22), the Reply (ECF No. 25), and oral argument (Tr. at ECF No. 31). 28 U.S.C. § 636(b)(1)(B) authorizes a District Judge to refer to a magistrate judge for hearing and submission of proposed findings of fact and recommendations for disposition "of applications for posttrial relief made by individuals convicted of criminal offenses. . . ." 28 U.S.C. § 636(b)(1)(C) provides that a party "may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Fed. R. Civ. P. 72(b) embodies the same procedure as the statute as far as prisoner petitions are concerned.

No evidentiary hearing was held in this matter. All proposed findings of fact in the Report are based on review of the State Court Record. Thus there are no demeanor-dependent credibility findings in the Report which would be subject to clearly erroneous review. Compare United States v. Cofield, 272 F.3d 1303 (11^th Cir. 2001).

Failure to make objections to a specific point waives appeal on that point. Alspaugh v. McConnell, 643 F.3d 162, 166 (6^th Cir. 2011); Miller v. Currie, 50 F.3d 373, 380 (6^th Cir. 1995); United States v. Walters, 638 F.2d 947 (6^th Cir. 1981); Mattox v. City of Forest Park, 183 F.3d 515, 519 (6^th Cir. 1999); Thomas v. Arn, 474 U.S. 140 (1985). A general objection has the same effect as a failure to file altogether. Howard v. Sec. of HHS, 932 F.2d 505 (6^th Cir. 1991). The reason is that failure to focus the district court's attention on any specific issues makes the initial reference useless and undermines the purpose of the Magistrate's Act. Howard, 932 F.2d at 509.

Analysis

Petitioner has filed seventeen separate objections, often with several subparts. The Objections will be dealt with seriatim. Because of the length of the Report and Objections, the state court statement of facts and the procedural history, already recited in the Report, are not repeated here.

Objection 1: The Report and Recommendations grossly mischaracterized Widmer's Ground 1 resulting in a flawed and off-point analysis of the state expert's body part impression testimony and its impact on Widmer's trial.

As pleaded, Widmer's First Ground for Relief reads:

The state courts unreasonably determined the facts and ruled contrary to or unreasonably applied clearly established Supreme Court precedent concerning Widmer's constitutional rights to due process, a fair trial, and confrontation by permitting the admission of impermissible expert opinion testimony that: (1) reached beyond the expert's purported expertise; (2) lacked scientific foundation; and (3) was based on a methodology that has been proven unreliable.

(Petition, ECF No. 1-1, PageID 56.)

In his first objection, Widmer characterizes his First Ground for Relief as being that the body part impression testimony given by William Hillard at trial

reached beyond the province of all legitimate evidence. No one - not Bill Hillard, not the modern-day Einstein of criminology, no human being - could reliably identify smudges [on a bathtub] as the impressions from specific body parts or assign gender (if the smudge is even from a human) or direction to those smudges.

(Objections, ECF No. 37, PageID 10660.)

On direct appeal to the Ohio Twelfth District Court of Appeals, Widmer's Second Assignment of Error read:

WIDMER WAS DENIED A FUNDAMENTALLY FAIR TRIAL IN VIOLATION OF HIS DUE PROCESS RIGHTS THROUGH THE ADMISSION OF IMPERMISSIBLE EXPERT OPINION TESTIMONY THAT: (1) REACHED BEYOND THE EXPERT'S PURPORTED EXPERTISE; (2) LACKED SCIENTIFIC FOUNDATION; AND (3) WAS BASED ON A METHODOLOGY THAT HAS BEEN PROVEN UNRELIABLE. ACCORDINGLY, WIDMER WAS ALSO DENIED THE RIGHT TO ADEQUATELY CONFRONT THIS EVIDENCE IN VIOLATION OF THIS SIXTH AMENDMENT RIGHTS.

The Twelfth District decided this Assignment as follows:

[*P62] In his second assignment of error, Widmer argues that the trial court erred by allowing Hillard to testify about "body part impressions" found on the bathtub. Widmer challenges the admission of Hillard's testimony regarding: (1) the adult male forearm on the front interior wall of the bathtub; (2) the forearm impression "overlaying" circular marks made on the bathtub by bath product bottles; and (3) the fingertip marks that were in a "downward position" and were made by a person of small stature, like a child, a female, or small male. Widmer contends that the admission of such testimony was in violation of Evid.R. 702 and his Sixth Amendment rights. Specifically, Widmer argues that "Hillard's testimony runs afoul of due process and the Confrontation Clause" as Hillard was permitted to testify beyond his area of expertise and into a realm of body part impressions for which he has "no training or consistent, methodologically based, non-anecdotal experience" and his testimony was "not based on [a] scientifically valid methodology."

[*P63] Prior to the commencement of the third trial, Widmer had filed a motion in limine seeking to limit Hillard's testimony by prohibiting him from testifying about the size and sex of the individuals who made the fingertip marks or the forearm impression. The motion in limine was not ruled on prior to trial and is therefore presumed to have been denied. Choate v. Tranet, Inc., 12th Dist. No. CA2003-11-112, 2004 Ohio 3537, ¶ 60. At trial, Hillard was offered as an expert in the areas of crime scene analysis, fingerprint analysis, and crime scene photography. Widmer did not seek to voir dire Hillard as to his qualifications asan expert in these fields. Rather, Hillard was admitted as an expert in the aforementioned areas without objection. Widmer did object, however, to Hillard's testimony that an adult male forearm impression was found on the bathtub, that this impression overlaid circular marks made on the bathtub by bath product bottles, and that the fingertip marks found in the bathtub were in a "downward position" and were made by a person of small stature, like a child, a female, or small male. Widmer's objections were overruled, and such testimony was deemed admissible by the trial court.

[*P64] We begin our analysis by determining whether Hillard's testimony was properly admitted pursuant to Evid.R. 702.

A. Evidence Rule 702

[*P65] "The determination of the admissibility of expert testimony is within the discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion." State v. Blankenburg, 197 Ohio App. 3d 201, 2012 Ohio 1289, ¶ 107, 966 N.E.2d 958 (12th Dist.). An abuse of discretion implies more than an error of law or judgment; it suggests that the trial court acted in an unreasonable, arbitrary, or unconscionable manner. State v. Barnes, 12th Dist. No. CA2010-06-009, 2011 Ohio 5226, ¶ 23. A trial court's admission of expert testimony is not an abuse of discretion where the testimony is relevant and the criteria of Evid.R. 702 are met. Terry v. Caputo, 115 Ohio St.3d 351, 2007 Ohio 5023, ¶ 23, 875 N.E.2d 72.

[*P66] Evid.R. 702 provides that a witness may testify as an expert if all of the following apply:

(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

(C) The witness' testimony is based on reliable scientific, technical, or other specialized information. * * *

[*P67] With respect to Evid.R. 702, the trial court, as part of its gatekeeping function, must assess both the relevance of theexpert's testimony and the reliability of the testimony prior to admitting such testimony into evidence. Caputo at ¶ 24. This gatekeeping obligation applies "not only to testimony based on 'scientific' knowledge, but also to testimony based on 'technical' and 'other specialized' knowledge." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L. Ed. 2d 238 (1999). To determine the reliability of testimony, the trial court may consider one or more of the specific factors mentioned in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 125 L. Ed. 2d 469 (1993). Kumho Tire Co., 526 U.S. at 141. The specific factors mentioned in Daubert include: (1) whether the theory or scientific technique has been tested; (2) whether the theory or technique has been subject to peer review or publication; (3) whether the method has a known potential rate or error; and (4) whether the theory has gained general acceptance in the scientific community. Caputo, 115 Ohio St. 3d 351, 2007 Ohio 5023 at ¶ 25, 875 N.E.2d 72, citing Daubert at 593-594. While consideration of the Daubert factors is permitted, such consideration is not required to determine the reliability of the testimony. Kumho Tire Co., at 141. Rather, the test of reliability is "flexible" and Dauberts list of specific factors neither

...