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Graggs v. Warden, Ebanon Corr. Inst.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION
May 30, 2013
CASE NO. 2:12-CV-190 (S.D. Ohio May. 30, 2013)

Opinion

CASE NO. 2:12-CV-190

05-30-2013

JOHN Q. GRAGGS, Petitioner, v. WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.


JUDGE SMITH

MAGISTRATE JUDGE KING


ORDER and

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. 2254. This matter is before the Court on the Petition, Doc. No. 1, Respondent's Return of Writ, Doc. No. 8, Petitioner's Reply, Doc. No. 26, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Petitioner's request for an evidentiary hearing and his Motion to Supplement the Evidence and Motion for Leave to Supplement the Evidence, Doc. Nos. 31, 32, are DENIED.

FACTS and PROCEDURAL HISTORY

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:

The charges in this case arise out of the shooting death of Fred Brock, also known as "Food Stamp Freddie" ("Brock") that occurred on January 8, 2008. The following description of events surrounding Brock's death were adduced at trial.
Marcus Jones ("Marcus") had been living at 3566 East Main Street, Apartment B-11, for about three months prior to Brock's
death. According to Marcus, he and his friend Jessie Lanier ("Lanier") sold cocaine out of this apartment. Marcus testified they sold bricks of cocaine for $28,000 apiece. Brock was a friend of Lanier's that met Marcus about three days prior to the shooting. Essentially, Brock was hired to "stay in the house and pretty much make sure no one came in the house and took the money and the drugs." (Tr. 351.)
On January 8, 2008, Marcus picked up his cousin, Dominic Jones ("Dominic"), and they went to a local high school basketball game. When Marcus left, Brock was on the couch watching television and Lanier was in the bathroom. While at the basketball game, Marcus saw Lanier arrive at the game alone. After the game, Marcus and Dominic went to the home of Marcus's father, Marvin Jones ("Marvin"), and began watching a movie. After being at Marvin's for approximately 15 minutes, Marcus got a telephone call from Lanier telling Marcus to come to the apartment. When Marcus and Dominic arrived at the apartment, Lanier was not there, but Lanier and a girl arrived about two minutes later. The three men entered the apartment where Brock was lying face down on the floor, handcuffed and shot.
Marcus testified he never touched the body, but he was scared and he, Dominic, and Lanier began to clear the apartment of drug paraphernalia and things related to the drug operation, including scales and $17,000 in cash. After taking several loads of items to Lanier's vehicle, Lanier left the complex. Marcus and Dominic then left the apartment and went to the Barnett Recreation Center where they called Marvin. According to Marvin, about 15 minutes had passed from when Marcus and Dominic left his house and made the call. Marvin told Marcus to call the police, and the three men proceeded to the apartment complex. Marvin went into the apartment with Dominic while Marcus called 911 from the hallway.
Just as the dispatch was ending, Whitehall Police Officer Eric Hollyfield pulled into the parking lot of the apartment complex and observed a man waving "frantically" to him. (Tr. 35.) As Officer Hollyfield entered the building, two other men directed him to Apartment B-11. Upon entering the apartment, Officer Hollyfield observed the victim lying face down on the floor. There was blood on the victim's back, and his hands were handcuffed behind his back. After clearing the room, Officer Hollyfield checked for a pulse and called for medics. According to Officer Hollyfield, the entire apartment appeared to be in disarray and "methodically
ransacked," as dresser drawers were pulled out and cushions were flipped. (Tr. 73.)
Marcus testified that though the apartment had been neat when he left, "everything was just thrown around" when he returned from the basketball game. (Tr. 378.) Marcus also discovered that $35,000 in cash and Lanier's revolver were missing from the apartment. Though Marcus testified he initially lied to the police because he feared facing drug charges, he later told them the "whole truth" after he was arrested. (Tr. 388.) Marcus denied touching or shooting a gun on January 8, 2008; however, a gun shot residue test conducted at 10:33 p.m. that day revealed particles "highly indicative" of gunshot powder residue. Marcus denied knowing or ever meeting appellant.
According to the testimony of the medical examiner, Brock had been shot three times, twice to the back and once to the head. Heather Ann Williams, a forensic scientist at the Ohio Bureau of Criminal Identification and Investigation ("BCI"), testified that the bullet recovered from Brock's thorax and the bullet recovered from the floor were fired from the same gun, but the bullet recovered from Brock's head was fired from a different gun.
During evidence collection at the scene, the tip of a green latex glove was found under Brock's body. The glove was found to contain the DNA of appellant. A search of appellant's residence revealed a revolver and a green latex glove. The gun was determined not to be one that fired any of the bullets recovered from the scene, but the glove tip from the scene was determined to be similar to the glove found at appellant's residence.
On January 9, 2008, at approximately 1:25 p.m., appellant paid cash for a pair of diamond earrings at Jared's jewelry store in the total amount of $480.35. At 8:19 p.m. that day, appellant returned to Jared's and paid $4,771.69 in cash for an anniversary ring. On January 14, 2008, appellant also made a lump-sum payment of $2,900 on the loan for his Cadillac. There was testimony that as of January 8, 2008, appellant was working full time and making $16.26 per hour, and he netted $443.73 on January 4, 2008 and $495.76 on January 11, 2008. Additionally, prior to making the lump-sum payment on the vehicle, appellant had made only erratic payments during 2007.
During an interview with Whitehall Detective Steve Brown, appellant told Detective Brown that while he knew Brock, he had
not seen him in ten years. Appellant also told Detective Brown that he was unfamiliar with the apartments where Brock was killed and had never been there. Appellant denied even knowing where the apartments were located. According to phone records, appellant made three calls between 7:42 and 7:43 p.m. on January 8, 2008 in the vicinity of a cell tower one-half mile from Marcus's apartment. At approximately 8:50 p.m. that same day, appellant made two calls in the vicinity of a cell tower near his home. None of the calls appeared to have been made to Marcus, Dominic or Lanier.FN1
FN1. There is no testimony from Lanier in this case as he was shot and killed in an unrelated incident prior to this trial.
On February 15, 2008, appellant was indicted for one count of aggravated robbery, one count of kidnapping, one count of murder, and two counts of aggravated murder, all with firearm specifications. A jury trial began on January 13, 2009. After the state presented its case, it dismissed the murder charge. On January 22, 2009, the jury found appellant guilty of all the remaining counts, but not guilty of the firearm specifications. On February 5, 2009, appellant filed a motion for a new trial pursuant to Crim.R. 33, and said motion was denied on February 23, 2009. A sentencing hearing was held on February 26, 2009, and an aggregate sentence of life imprisonment without parole was imposed.
State v. Graggs, No. 09AP-339, 2009 WL 3778000, at *1-3 (Ohio App. 10th Dist. Nov. 12, 2009). Represented by new counsel, Petitioner pursued a direct appeal from his conviction, in which he asserted the following assignments of error:
I. THE TRIAL COURT ERRED AND DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION BY FINDING HIM GUILTY OF AGGRAVATED MURDER, KIDNAPPING AND AGGRAVATED ROBBERY AS THOSE VERDICTS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WERE ALSO AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY FAILING TO PROPERLY INSTRUCT THE JURY AS TO ACCOMPLICE LIABILITY THEREBY DEPRIVING APPELLANT OF A FAIR TRIAL AS REQUIRED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION TEN OF THE OHIO CONSTITUTION.
III. APPELLANT'S TRIAL COUNSEL WERE INEFFECTIVE, THEREBY DENYING HIM HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.
Id. On November 12, 2009, the appellate court affirmed the trial court's judgment. Id. Petitioner did not file a timely appeal to the Ohio Supreme Court. On December 16, 2010, Petitioner filed a motion for delayed appeal. Exhibit 29 to Return of Writ. On February 2, 2011, the Ohio Supreme Court denied that motion. State v. Graggs, 127 Ohio St.3d 153 (2010).

On November 10, 2009, Petitioner filed a petition for postconviction relief with the trial court. The trial court dismissed that petition on February 16, 2010 without a hearing, finding that the claims presented in the petition were barred by res judicata and, alternatively, were substantively without merit. Petitioner filed an appeal from that dismissal, presenting a single assignment of error:

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT FRIST [sic] HOLDING A HEARING.
State v. Graggs, No. 10AP-249, 2010 WL 4793371, at *2 (Ohio App. 10th Dist. Nov. 23, 2010). On November 23, 2010, the appellate court affirmed the trial court's judgment. Id. On March 2, 2011, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Graggs, 128 Ohio St.3d 1415 (2011).

On March 29, 2011, Petitioner filed an application to reopen his direct appeal pursuant to Ohio Appellate Rule 26(B). Exhibit 36 to Return of Writ. On August 11, 2011, the appellate court denied the application as untimely. Exhibit 39 to Return of Writ. On November 10, 2011, the Ohio Supreme Court dismissed Petitioner's subsequent appeal as not involving any substantial constitutional question. Exhibit 43 to Return of Writ.

On March 1, 2012, Petitioner filed his pro se Petition, alleging that he is in the custody of Respondent in violation of the Constitution of the United States based upon the following grounds:

1. Insufficient [] evidence.
Evidence adduced at trial was not sufficient to support a conviction. The jury specifically found that State did not prove an essential element of the indictment on all charges in finding that the petitioner did not have a firearm on his person or under his control while committing the offenses, despite the fact [that] all charges required the use of a firearm to commit it. This violat[ed] appellant's rights to a fair trial and due process of law under 5th and 14th amendment.
2. Ineffective assistance of trial counsel.
Trial counsel failed to investigate and present available exculpatory evidence and alibi witness. Failed to object to improper testimony and jury instruction and failed to attach required affidavit to new trial motion, violating Petitioner's right to effective assistance of counsel under 6th Amendment and right to f[air] trial and due process of law under 5th and 14th Amendment.
3. Ineffective assistance of appellate counsel, 5th, 6th, and 14th Amendment violation.
Appellate counsel was ineffective for failing to point out that the evidence was insufficient to support conviction because all essential elements of the charges were not proven beyond a reasonable doubt since most of the essential elements of crime charged, possession and use of weapon in the commission of
the crimes, was found by the jury not to have happened; Appellate counsel failed to raise structural error in defective indictment and improper amendment to charges.
4. Defective indictment.
The indictment omitted mens rea element which was essential element of charge. After trial defense sought dismissal and court amended indictment after evidence was presented in violation of 5th, 6th, and 14th Amendments.
5. Failure of the trial court to properly instruct the jury on accomplice liability.
The trial court gave the jury an improper and misleading instruction as to accomplice liability which undermined confidence in the verdict, in violation of the Petitioner's right to a fair trial and the due process of law guaranteed him by the 5th and 14th Amendments of the Constitution.
6. Juror misconduct, 5th and 14th.
When jurors discuss the case in which they sit on as jurors with others in a public dining area against the Court's implicit instructions not to do so, a Petitioner is denied a fair trial and the due process of law guaranteed him by the 5th and 14th Amendments of the Constitution.

PROCEDURAL DEFAULT

Respondent contends that Petitioner's claims have been procedurally defaulted. In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required fairly to present those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present the claims, his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). If, because of a procedural default, the petitioner can no longer present his claims to a state court, he has also waived them for purposes of federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is precluded by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). "First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Id. Second, the court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground on which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the court has determined that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner is required to demonstrate that there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error. Id. This "cause and prejudice" analysis also applies to failure to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).

Claims Raised on Direct Appeal:

In claim one, Petitioner alleges that the evidence was constitutionally insufficient to sustain his convictions. In claim two, Petitioner alleges, inter alia, that he was denied the effective assistance of trial counsel because his attorney failed to object to improper jury instructions on accomplice liability and to witness testimony. In claim five, Petitioner alleges that he was denied a fair trial due to improper jury instructions on accomplice liability. Petitioner raised these claims on direct appeal; however, he thereafter failed to file a timely appeal to the Ohio Supreme Court, and the Ohio Supreme Court denied his subsequent motion for a delayed appeal.

The United States Court of Appeals for the Sixth Circuit has held that the Ohio Supreme Court's denial of a motion for delayed appeal constitutes a procedural default of the claims sought to be raised in that delayed appeal. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004). This Court therefore likewise concludes that petitioner has procedurally defaulted these claims.

Claims Raised in Petition for Postconviction Relief:

Petitioner also asserts in claim two that he was denied the effective assistance of trial counsel because his attorney failed to attach the affidavit of a witness to alleged juror misconduct in support of his motion for a new trial, improperly stipulated to cell phone records but failed to argue or present evidence of the exculpatory nature of those records, and failed to call Tierra Davis or Kim Graggs as defense witnesses. Petitioner raised these same claims in his petition for postconviction relief; however, the state appellate court affirmed the trial court's dismissal of these claims without an evidentiary hearing, reasoning that the claims were barred by Ohio's doctrine of res judicata because they could have been raised either at trial or on direct appeal, during which Petitioner was represented by new counsel:

Petitioner contends that, at 9:03 p.m., he was at least 8 minutes or 3.63 miles away from the scene of the crime and that, at 9:21 p.m., he was 7 minutes or 3 miles away. Petitioner argues that, in view of the testimony of prosecution witnesses that gunshots were heard after 9:00 p.m., he could not have committed the murder. See Reply, PageID #1731.

Petitioner asserts that Tierra Davis would have testified that, shortly before the events at issue, she refunded $6,500 to Petitioner for a motorcycle that he had purchased from her because she could not find its title. This evidence, he contends, would have explained expenditures made by him shortly after the murder. Petitioner also asserts that Kim Graggs, his wife, would have testified that they had a shared income of $4,783 and $7,405 per month, thus discrediting evidence that he had financial troubles. Petitioner also contends that his wife could have established the factual basis for his claim of juror misconduct, thus justifying a new trial. See Reply, PageID #1709.

Appellant's claims are all barred by res judicata. As to his first claim, the trial court record shows that appellant's cell phone records, and the stipulation pertaining to those records, were at issue at trial. In seeking admission of its exhibit containing the stipulation regarding appellant's cell phone records, the prosecutor asserted that he and defense counsel had agreed to the stipulation in lieu of introducing complicated cellphone-tower testimony. In addition, when the jury asked a question about the stipulation during its deliberations, defense counsel consulted with appellant about the proposed answer. Further, appellant asserts in his petition that prior to trial, he and defense counsel "went over petitioner's cell phone records for the date of January 8, 2008" and discussed issuing a subpoena to a "cell phone tech." (Appellant's petition for postconviction relief, 3.) Therefore, any claim of error premised upon either the stipulation or whether defense counsel should have included in the stipulation, or otherwise submitted, additional cell phone evidence either was, or should have been, known to appellant and could have been raised at trial or on direct appeal.
Regarding his second claim, the trial court record establishes that appellant was well aware of the alleged juror misconduct at the time of trial, as he raised it as one of his grounds in support of his motion for new trial. Thus, any claim of error pertaining to trial counsel's alleged failure to obtain an affidavit from his wife regarding the allegation of juror misconduct either was, or should have been, known to appellant and could have been raised on direct appeal.
Finally, as to his third claim, the trial court record demonstrates that Davis was named as a potential witness, that a subpoena was issued, and that she did not testify at trial. Thus, any claim of error based upon whether Davis should have testified either was, or should have been, known to appellant and could have been raised at trial or on direct appeal. Accordingly, as the issues appellant raises in his petition could have been raised at trial or in his direct appeal of right, we find that res judicata bars further consideration of these issues.
State v. Graggs, 2010 WL 4793371, *4. Thus, the state appellate court explicitly refused to address the merits of Petitioner's claims.

Ohio's doctrine of res judicata, see State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175 (1967), is adequate and independent for purposes of the procedural default analysis. To be "independent," the procedural rule at issue, as well as the state court's reliance thereon, must rely in no part on federal law. See Coleman v. Thompson, 501 U.S. 722, 732-33 (1991). To be "adequate," the state procedural rule must be firmly established and regularly followed by the state courts. Ford v. Georgia, 498 U.S. 411 (1991). "[O]nly a 'firmly established and regularly followed state practice' may be interposed by a State to prevent subsequent review by this Court of a federal constitutional claim." Id. at 423 (quoting James v. Kentucky, 466 U.S. 341, 348-351 (1984)). See also Barr v. City of Columbia, 378 U.S. 146, 149, (1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964).

The United States Court of Appeals for the Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Ohio courts have consistently refused, in reliance on the doctrine of res judicata, to review the merits of claims because they are procedurally barred. See State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 16. Additionally, the doctrine of res judicata serves the state's interest in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. With respect to the independence prong, the Court concludes that res judicata does not rely on or otherwise implicate federal law. Accordingly, this Court is satisfied from its own review of relevant case law that the Perry rule is an adequate and independent ground for denying relief.

The state court of appeals also alternatively considered Petitioner's postconviction claims on the merits:

Regardless of the doctrine of res judicata, appellant's claims do not constitute ineffective assistance of counsel. "A defendant does not state a claim for ineffective assistance of counsel unless his attorney acted unreasonably given the facts of the case, and the unreasonable conduct was prejudicial to the defense." State v. Mills (1992), 62 Ohio St.3d 357, 370, 582 N.E.2d 972, citing Strickland v. Washington (1984), 466 U.S. 668, 690-92, 104 S.Ct. 2052, 2066-67, 80 L.Ed.2d 674. A reviewing court examines trial counsel's performance with great deference, and must refrain from second-guessing counsel's strategic decisions. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965, 1995-Ohio-104, citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Regarding his first claim, appellant submitted with his petition several unauthenticated documents purportedly establishing his cell phone usage on the night of Brock's murder. Appellant contends that submission of this additional evidence, by stipulation or live testimony, would have established that he could not have been at the scene of Brock's murder. However, other evidence submitted at trial belies appellant's assertion. As noted above, a piece of torn latex glove containing appellant's DNA was found beneath Brock's body despite appellant telling police that he had never been to Jones' apartment. Thus, even assuming that trial counsel should have submitted the additional cell phone evidence, the failure to do so was not prejudicial to appellant.
As to his second claim, appellant submitted with his petition an affidavit from his wife, Kim Graggs ("Graggs"), purportedly establishing that defense counsel failed to timely
secure from her an affidavit in support of his claim of juror misconduct. We first note that the affidavit is not properly notarized. Moreover, even if the affidavit were properly notarized, it is still deficient to establish a claim of juror misconduct. Graggs states that she overheard a conversation between four jurors during lunch break on January 22, 2009, the day the verdicts were rendered. However, she fails to affirmatively state that these jurors were seated in appellant's case, fails to specify where she heard the alleged conversation, and fails to disclose the substance of the conversation. The failure to provide specific information in the affidavit is fatal to appellant's claim of juror misconduct. Appellant cannot establish that defense counsel was ineffective in failing to attach Graggs' affidavit to his new trial motion when that affidavit is devoid of specific facts that would support his claim of juror misconduct.
With regard to his final claim, appellant submitted with his petition an affidavit from Davis stating what her testimony would have been had she been called to testify. Initially, we note that the affidavit is not properly notarized. Moreover, even if the affidavit were properly notarized, it is still deficient to establish that defense counsel was ineffective in failing to call Davis to testify. In her affidavit, Davis states that in late 2007, appellant purchased a 2000 Harley Davidson motorcycle from her for the sum of $6,500. She further avers that appellant made a $2,000 payment on November 16, 2007, a $2,000 payment on December 2, 2007, and a $2,500 payment on December 29, 2007. Davis further states that on January 3, 2008, she refunded the $6,500 to appellant because she could not find the title to the motorcycle. Appellant asserts that Davis' testimony could have explained how he was able to purchase expensive jewelry and make a large payment on his automobile loan shortly after Brock's murder.
"'Counsel's decision whether to call a witness falls within the rubric of trial strategy and will not be second-guessed by a reviewing court.'" State v. Matthews, 10th Dist. No. 03AP-140, 2003-Ohio-6307, ¶ 31, quoting State v. Treesh (2001), 90 Ohio St.3d 460, 489, 739 N.E.2d 749. Appellant bears "the burden to show that the witness's testimony would have significantly assisted the defense and would have affected the outcome of the case ." State v. Pilgrim, 184 Ohio App.3d 675, 922 N.E.2d 248, 2009-Ohio-5357, ¶ 54, citing State v. Dennis, 10th Dist. No. 04AP-595, 2005-Ohio-1530, ¶ 22.
Appellant has failed to meet his burden. Even assuming Davis' testimony would have provided a plausible explanation as to how appellant was able to purchase the jewelry and pay his automobile loan, such testimony would not have affected the outcome of the trial. As noted above, a piece of torn latex glove containing appellant's DNA was found beneath Brock's body despite appellant telling police that he had never been to Jones' apartment. Thus, even assuming that trial counsel should have called Davis to testify, the failure to do so was not prejudicial to appellant.
State v. Graggs, 2010 WL 4793371, at *4-6.

Petitioner submits that the state appellate court erroneously determined that the latex glove containing his DNA was found underneath the victim's body. Instead, Petitioner contends that, according to the trial transcripts, the glove was found beneath a couch cushion. See Reply, PageID #1708. The trial transcript actually indicates that police were unable to observe the glove until they had moved the body and the cushion. Trial Transcript, Vol. I, attached to Return of Writ, PageID # 788-90.

This alternative ruling does not forgive Petitioner's waiver of his claims raised in his petition for postconviction relief, nor does it serve to revive those claims for purposes of habeas corpus review. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding"); Bowling v. Parker, 344 F.3d 487, 498 (6th Cir. 2003) (where state court's dismissal of claim on the merits constitutes an alternative holding, a federal habeas court will consider the claim as procedurally defaulted).

It is true that Petitioner introduced at least some evidence dehors the record in support of his postconviction claims of ineffective assistance of counsel, and Petitioner may argue that Ohio's doctrine of res judicata did not, therefore, preclude consideration of at least some of his claims on postconviction proceedings. Even assuming that the submission of such evidence renders Ohio's doctrine of res judicata inapplicable to any of Petitioner's claims, the Court nevertheless concludes that these claims are without merit. As noted supra, the state appellate court rejected the merits of Petitioner's postconviction claims of ineffective assistance of trial counsel. The factual findings of the state appellate court are presumed to be correct.

A map from "Bing Maps," which included driving directions, distance and estimated travel time from 1873 East Livingston Avenue to 3566 East Main Street (the scene of the murder). Exhibit 12, attached to Return of Writ.

Where a state court misapplies a procedural rule, a federal court may consider the merits of the petitioner's claims. See, e.g., Turner v. Hudson, No. 2:07-cv-595, 2012 WL 511442, at *5 (S.D. Ohio Feb. 15, 2012)("[A]s a general matter a federal habeas court can bypass a State court res judicata conclusion if the State courts have misapplied their own law")(citing Hill v. Mitchell, 400 F.3d 308, 314 (6th Cir. 2005); Greer v. Mitchell, 264 F.3d 663, 673 (6th Cir. 2001)); see also Hand v. Houk, No. 2:07-cv-846, 2011 WL 2446383, at *40 (S.D. Ohio April 25, 2011).

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
28 U.S.C. § 2254(e)(1). Further, a federal habeas court may not grant relief unless the state court's decision was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence that was presented.
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The United States Supreme Court has explained:
"[A]n unreasonable application of federal law is different from an incorrect application of federal law." Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id., at 411, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389. Rather, that application must be "objectively unreasonable." Id., at 409, 529 U.S. 362, 120 S.Ct. 1495, 146
L.Ed.2d 389. This distinction creates "a substantially higher threshold" for obtaining relief than de novo review. Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). AEDPA thus imposes a "highly deferential standard for evaluating state-court rulings," Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and "demands that state-court decisions be given the benefit of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam).
Renico v. Lett, 550 U.S. 766, ---, 130 S.Ct. 1855,1862 (2010) (footnote omitted.)
"[C]learly established" law under § 2254(d)(1) consists of "the holdings, as opposed to the dicta, of [the Supreme Court's]" cases. Williams v. Taylor, 529 U.S. 362, 412, (2000). An "unreasonable application" of that law involves not just an erroneous or incorrect decision, but an objectively unreasonable one. Renico v. Lett, 559 U.S.—, 130 S.Ct. 1855 (2010).
Wong v. Smith, 131 S.Ct. 10 (Mem.), 2010 WL 752363, at *2 (Nov. 1, 2010). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as "'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, — - U.S. —, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Petitioner has failed to meet this standard here.

The right to counsel guaranteed by the Sixth Amendment is the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, (1970). The standard for demonstrating a claim of ineffective assistance of counsel is composed of two parts:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Scrutiny of defense counsel's performance must be "highly deferential." Id. at 689.

With respect to the first prong of the Strickland test, "[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. To establish the second prong of the Strickland test, i.e., prejudice, a petitioner must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id., at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Because a petitioner must satisfy both prongs of the Strickland test to demonstrate the ineffective assistance of counsel, should the court determine that the petitioner has failed to satisfy one prong, it need not consider the other. Id., at 697.

Petitioner claims that his wife, Kim Graggs, could have testified regarding alleged juror misconduct and that his trial counsel should have submitted her affidavit to that effect in support of his motion for a new trial. As the appellate court correctly noted, however, there is nothing in the record to confirm that Petitioner's wife would have actually testified to any juror misconduct. Her statement -- which was not properly notarized -- indicates only that she "overheard a conversation between four jur[ors] during a lunch break." See Exhibit 12 to Return of Writ. The statement does not recount the content of that conversation; indeed, the statement does not indicate that anything inappropriate was discussed.

Petitioner also complains that his counsel failed to call as a witness Tierra Davis, who allegedly could have testified that she gave $6,500 to Petitioner shortly before the murder, and failed to argue, based on cellular phone records, that Petitioner could not have been at the scene of the crime at the time in question. In rejecting these claims of ineffective assistance of counsel, the state appellate court concluded that Petitioner had failed to establish Strickland's prejudice component in view of the presence of Petitioner's DNA in an apartment that Petitioner insisted he had never visited and in view of his established proximity to the scene of the crimes. The state appellate court's reasoning and conclusions in this regard were not unreasonable so as to warrant federal habeas corpus relief. See 28 U.S.C. § 2254(d).

Finally, although the state appellate court did not address the issue, this Court likewise cannot conclude that defense counsel's failure to present the testimony of Petitioner's wife regarding their joint income prejudiced Petitioner under the standard set forth in Strickland. Mrs. Gragg's unsworn statement, Exhibit 12, attached to Return of Writ, PageID #312, indicates that she received $3,300 to $5,000 for her care of foster children, that she and Petitioner delivered newspapers (although she does not indicate the amount of money received from this job), and that Petitioner earned a monthly income of $1,983.84 between July 2007 and February 2008. Petitioner proffers no records or other evidence to substantiate his wife's statement, nor has Petitioner produced evidence discrediting the state appellate court's factual finding that he experienced financial difficulties during the relevant time. In any event, her statement and presumed testimony simply do not explain Petitioner's substantial expenditures - which totaled approximately $8,100.00 - immediately following the robbery and murder.

In sum, Petitioner's postconviction claims of ineffective assistance of trial counsel - i.e., that his attorney improperly failed to present defense witnesses and exculpatory evidence, and failed to attach his wife's affidavit to his motion for a new trial - are either procedurally defaulted or without merit.

Claim of Ineffective Assistance of Appellate Counsel:

In claim three, Petitioner alleges that he was denied the effective assistance of appellate counsel. The state appellate court refused to address the merits of this claim because Petitioner failed to establish good cause for his untimely filing:

Pursuant to App.R. 26(B)(1), "[a]n application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time." Accordingly, an application for reopening shall contain "[a] showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment. See App.R. 26(B)(2)(b).
In the present matter, this court affirmed appellant's convictions in a decision journalized on November 12, 2009. As such, in order for appellant's application to be timely, appellant should have filed it on or before February 9, 2010. However, appellant filed his application on March 29, 2011, more than one year after the 90-day deadline required by App.R. 26(B). Based upon the foregoing, appellant has clearly failed to file his application within 90 days of the journalization of the appellate judgment and, therefore, we must determine whether appellant has established good cause for his failure to file a timely application.
In his affidavit, appellant contends that he has good cause for filing an untimely application to reopen based upon 1) his actual innocence, 2) ineffective assistance of counsel, 3) the miscarriage of justice, 40 violations of his civil rights, and 5) the interest of justice.
For ease of discussion, we will briefly address appellant's assertions of good cause out of order. Appellant's second assertion of good cause, ineffective assistance of counsel, goes to the merits of whether appellant was deprived of the effective assistance of counsel during the original appeal. Further, appellant's first, third and fourth assertions of good cause go to the merits of the case, if we were to reopen the appeal. Finally, appellant's fifth assertion of good cause makes the general argument that timeliness should not matter when considering the interest of justice. However, none of appellant's assertions of good cause explain why appellant waited over one year past the 90 day deadline to file this
application for delayed appeal and, therefore, appellant has not shown good cause. Simply stated, appellant has failed to provide any explanation or show good cause for waiting over one year past the 90 day deadline to file this application for delayed reopening.
Exhibit 39, attached to Return of Writ.

The United States Court of Appeals for the Sixth Circuit has held that "[t]he time requirement in Rule 26(B) is an adequate and independent state ground" upon which to foreclose federal habeas corpus relief. Parker v. Bagley, 543 F.3d 859 (6th Cir. 2008); Smith v. Warden, Toledo Correctional Facility, No. 3:10CV00367, 2011 WL 433709, at *3 (S.D. Ohio July 18, 2011)(citing Gross v. Warden, 2011 WL 1597659 at *10 (6th Cir. 2011); Monzo v. Edwards, 281 F.3d 568, 577 (6th Cir. 2002)). Under these circumstances, the Court concludes that Petitioner has procedurally defaulted this claim of ineffective assistance of appellate counsel.

Claims Four and Six:

In claim four, Petitioner alleges that he was denied a fair trial because of a defective indictment. This claim, being readily apparent from the face of the record, should have been raised on direct appeal but was not. In claim six, Petitioner alleges that he was denied a fair trial because of juror misconduct. This claim has not been properly presented to all appropriate state courts. To the extent that this claim is readily apparent from the face of the record, Petitioner failed to raise the claim on direct appeal. Although Petitioner referred to alleged juror misconduct in his postconviction proceedings, he did so only in the context of his claim of ineffective assistance of trial counsel.

Petitioner may now no longer present claims four and six to the state courts by virtue of Ohio's doctrine of res judicata. See State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 16; State v. Perry, 10 Ohio St.2d at 175. Moreover, it does not appear that Petitioner could meet the requirements for a successive and untimely petition for postconviction relief. See O.R.C. § 2953.21.

O.R.C. 2953.21 provides:

Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, a court may not entertain a petition filed after the expiration of the period prescribed in division
(A) of that section or a second petition or successive petitions for similar relief on behalf of a petitioner unless both of the following apply:
(1) Either of the following applies:
(a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief.
(b) Subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right.
(2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
(B) An order awarding or denying relief sought in a petition filed pursuant to section 2953.21 of the Revised Code is a final judgment and may be appealed pursuant to Chapter 2953. of the Revised Code.

Petitioner may still obtain review of his otherwise procedurally defaulted claims if he establishes cause for the default and actual prejudice arising from the alleged constitutional violations. As cause for his procedural default in failing to file a timely appeal to the Ohio Supreme Court, Petitioner represents that his attorney failed to advise him that he could file an appeal to the Ohio Supreme Court or that he had only 45 days in which to do so. Petitioner further represents that it was only in November 2010 that he learned from a prison law clerk about the process for filing a delayed appeal and that he filed a motion for delayed appeal shortly thereafter. See Reply; Exhibit 29, attached to Return of Writ. These representations are insufficient to establish cause for his default.

"[P]etitioner has the burden of showing cause and prejudice to overcome a procedural default." Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) (internal citation omitted).

" '[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him[; it must be] some objective factor external to the defense [that] impeded . . . efforts to comply with the State's procedural rule." Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003); see also Lundgren v. Mitchell, 440 F.3d 754, 763-64 (6th Cir. 2006)(citing Murray v. Carrier, 477 U.S. 488). "[I]gnorance of the law and procedural requirements for filing a timely notice of appeal is insufficient to establish cause to excuse [a] procedural default." Bleigh v. Brunsman, No. 2:11-cv-628, 2012 WL 668819, at *11 (S.D. Ohio Feb. 29, 2012)(citing Bonilla, 370 F.3d at 498).

In Smith v. Ohio Department of Rehabilitation & Correction, 463 F.3d 462, 432-35 (6th Cir. 2006), the United States Court of Appeals for the Sixth Circuit held that an attorney's failure to inform the client of an adverse decision by the state court of appeals can constitute cause for the failure to file a timely appeal with the Ohio Supreme Court. Here, however, Petitioner does not allege that he was unaware of the denial of his direct appeal; rather, Petitioner represents only that that his attorney failed to advise him of the time limit and procedure for filing an appeal to the Ohio Supreme Court. The United States Court of Appeals for the Sixth Circuit has declined to extend Smith. Wilson v. Hurley, 382 F. App'x 471, 479 (6th Cir. 2010)(rejecting the argument that "appellate counsel's duty to provide effective assistance during the first appeal of right carried with it the continuing duty to notify Petitioner of the deadline for filing a Rule 26(B) application"). "Ineffective assistance of counsel may constitute cause for a procedural default only at a stage of the proceedings where a petitioner has a Sixth Amendment right to counsel. . . . It does not extend to discretionary appeals or collateral post-conviction proceedings." Id., at 478. Because Petitioner had no Sixth Amendment right to counsel in connection with the discretionary appeal to the Ohio Supreme Court, see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)("[T]he right to appointed counsel extends to the first appeal of right, and no further."), Petitioner has failed to establish cause for this procedural default. See Norris v. Warden, No. 1:10-cv-764, 2011 WL 5881189, at *9 (S.D. Ohio Oct. 21, 2011)(appellate counsel's alleged failure to advise a petitioner that he could pursue a discretionary appeal to the Ohio Supreme Court did not constitute cause for procedural default).

Beyond the four-part Maupin analysis, this Court is required to consider whether this is "an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley, 505 U.S. 333.

Petitioner alleges that he is actually innocent of the charges against him and that this Court should therefore address the merits of his claims. In support of this argument, Petitioner again complains that his attorney failed to introduce exculpatory cellular phone records that support his contention that he could not have committed the crimes charged and failed to present the testimony of Kim Graggs and Tierra Davis. Petitioner also argues that the DNA evidence found on the latex glove at the scene of the murder was unreliable because the premises had been contaminated prior to the arrival of police. He also points to evidence that Marcus Jones tested positive for gunshot residue and told police that Lanier was the shooter. See Reply, PageID #1708. Petitioner also represents that he purchased the jewelry with small bills, not the large bills missing from the scene of the crime. See id; see also Reply, PageID # 1723. He argues that, because the jury acquitted him of the firearm specifications, he cannot properly have been found guilty of any of the charged offenses, since all charges involved the use of a firearm. Id. at PageID #1715, 1718, 1722. Petitioner denies financial problems prior to the crimes charged and represents that he lived with Kim Graggs and shared a joint income with her. Finally, Petitioner argues that the jury did not easily come to a verdict of guilt. See Trial Transcript, Vol. V, attached to Return of Writ, PageID # 1430 -1443.

The United States Supreme Court has held that if a habeas petitioner "presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims." Schlup [v. Delo], 513 U.S. [298,] 316, 115 S.Ct. 851, 130 L.Ed.2d 808 [1995]. Thus, the threshold inquiry is whether "new facts raise[ ] sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial." Id. at 317, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. To establish actual innocence, "a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. The Court has noted that "actual innocence means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup, 513 U.S. at 324, 115 S.Ct. 851, 130 L.Ed.2d 808. The Court counseled, however, that the actual innocence exception should "remain rare" and "only be applied in the 'extraordinary case.' " Id. at 321, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808.
Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005). Petitioner has failed to meet this standard.

Although the jury acquitted Petitioner of the firearm specifications charged in connection with his convictions on aggravated robbery, kidnapping, murder and aggravated murder, the use of a firearm was neither necessary to the jury's finding of guilt nor necessarily indicative of his actual innocence. See State v. Evans, 63 Ohio St.3d 231 (1992)(citing State v. Mapes, 19 Ohio St.3d 108 (1985); State v. Perryman, 49 Ohio St.2d 14, 26 (1976))(where a jury convicts a defendant of aggravated murder committed in the course of an aggravated robbery, but acquits him of a firearm specification for the identical behavior charged, the general verdict is valid).

Inconsistent verdicts may not form the basis for setting aside proper convictions on other counts. United States v. Patrick, 965 F.2d 1390, 1397 (6th Cir.), cert. denied, 506 U.S. 940 (1992). . . . Dunn [v. United States, 284 U.S. 390, 393 (1932)] is premised on the notion of jury lenity, that "[t]he most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as . . . lenity." Id. (quoting Steckler v. United States, 7 F.2d 59, 60 (C.C.A.2 1925)).
Drake v. Superintendent, Trumbell Correctional Inst., 106 F.3d 400, unpublished, 1997 WL 14422, at *4-5 (6th Cir. 1997). See also United States v. Powell, 469 U.S. 57, 66 (1984)(inconsistent verdicts should not be reviewable).

Some of Petitioner's arguments regarding his actual innocence were addressed by the state appellate court, which rejected Petitioner's claim that the evidence was constitutionally insufficient to sustain his convictions:

BCI employee Kelly Artis. Ms. Artis tested the DNA found in the tip of the latex glove found near Brock's body. The DNA was found to match that of appellant, and the chances of a random match between appellant's DNA and another human being were one in 77 quintillion. It is appellant's contention, however, that Ms. Artis's testimony is inadmissible and insufficient to sustain a
conviction because the state failed to introduce a sufficient basis for Ms. Artis's testimony.
***
[W]e cannot find there is insufficient evidence to support appellant's convictions. A piece of torn latex glove containing appellant's DNA was found under Brock's body despite appellant telling detectives he had never been to the apartment complex in question and had not seen Brock for ten years. Phone records established that calls from appellant's cell phone were made in the vicinity of Marcus's apartment near the time of the shooting. Additionally, Marcus's apartment was known for drug activity as he and Lanier had been running a drug business from there for several months. Marcus testified $35,000 in cash was missing from the apartment, and appellant made large cash purchases at a jewelry store the day after Brock's death. Appellant also made a large lump-sum payment on his vehicle loan despite making only erratic payments in the previous months.
State v. Gragg, 2009 WL 3778000, at *6.

In short, the Court concludes that Petitioner has failed to establish cause and prejudice for the procedural default of his claims. Moreover, for the reasons set forth infra, the Court also concludes that Petitioner has failed to proffer evidence of his actual innocence sufficient to justify review of these claims notwithstanding his defaults.

MOTIONS TO SUPPLEMENT RECORD

Petitioner seeks to supplement the record with cellular telephone records, which he has attached to his motion. Doc. No. 31. He argues that these documents support his claim of ineffective assistance of trial counsel based on his attorney's failure to investigate, failure to present exculpatory evidence, and agreement to stipulate to the admission of certain of cellular telephone records at trial. Specifically, Petitioner complains that his attorney permitted the admission of records indicating that Petitioner had made calls from his cell phone at 7:42 p.m. and 7:43 p.m. on the night of the murder in the vicinity of the crime scene. Petitioner contends that records from December 2007 through February 2008 establish that he routinely made such calls in this same area while traveling on James Road. Petitioner complains that, in view of the jury's difficulty in reaching a verdict and because prosecution witnesses testified that they heard gunshots at approximately 9:15 p.m. and 9:21 p.m. - when records allegedly show that Petitioner was farther from the scene of the crime - he was prejudiced by his attorney's failure to offer these records into evidence at trial. In short, Petitioner asks to supplement the record before this Court with the cellular telephone records, maps of the area indicating the location of cellular phone towers, and the investigative notes of Detective T. M. Horning regarding calls placed or received by Petitioner on the night in question. See Motion to Supplement the Evidence, Doc. No. 31 (with attached exhibits). Respondent opposes Petitioner's motion to supplement the record based on Petitioner's failure to present these documents to the state courts in support of his claim of ineffective assistance of counsel. See Response in Opposition, Doc. No. 33.

Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts authorizes a court to expand the record under certain circumstances:

(a) In General. If the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating 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.
(c) Review by the Opposing Party. The judge must give the party against whom the additional materials are offered an opportunity to admit or deny their correctness.
The purpose of this rule is not only to enable the court to consider the merits of claims without an evidentiary hearing, but also to assist the court in determining whether an evidentiary hearing is warranted. Blackledge v. Allison, 431 U.S. 63, 81 (1977).

In Cullen v. Pinholster, -- U.S. --, 131 S.Ct. 1388, 1398 (2011), the United States Supreme Court held that federal review under 28 U.S.C. § 2254(d) of a claim adjudicated on the merits by a state court is limited to the factual record that was before the state court. See 28 U.S.C. § 2254(e)(2); Holland v. Jackson, 542 U.S. 649, 652 (2004) ("[W]hether a state court's decision was unreasonable must be assessed in light of the record the court had before it"). See also Ballinger v. Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013)("[D]istrict courts are precluded from conducting evidentiary hearings to supplement existing state court records when a state court has issued a decision on the merits with respect to the claim at issue"); Sheppard v. Bagley, 657 F.3d 338, 343-44 (6th Cir. 2011) (refusing to consider evidence not considered by the state courts in light of Pinholster). The United States Supreme Court has explained the reasoning behind this limitation:

Although state prisoners may sometimes submit new evidence in federal court, AEDPA's statutory scheme is designed to strongly discourage them from doing so. Provisions like §§ 2254(d)(1) and (e)(2) ensure that "[f]ederal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." Id., at 437, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435; see also Richter, 562 U.S., at —, 131 S.Ct., at 787 ("Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions"); Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ("[T]he state trial on the merits [should be] the 'main event,' so to speak, rather than a 'tryout on the road' for what will later be the determinative federal habeas hearing").
Pinholster, at 1401. The limitation on evidentiary hearings in habeas corpus cases, as articulated in Pinholster, applies as well to a motion to expand or supplement the record through Rule 7 of the Rules Governing Section 2254 Cases. See, e.g., Caudill v. Conover, 871 F.Supp.2d 639, 646 (E.D. Ky. May 14, 2012)("It would defy logic to preclude a petitioner from developing factual information in an evidentiary hearing [under Pinholster], but allow her to introduce the same factual information via discovery and expansion of the record").

Pinholster does not apply, however, where the state courts did not adjudicate a claim on the merits. Id., at 1398. As discussed supra, the state appellate court explicitly refused to address the merits of Petitioner's claim of ineffective assistance of trial counsel in Petitioner's postconviction proceedings, concluding that the claim was barred under Ohio's doctrine of res judicata. Under these circumstances, Pinholster would not prohibit this Court from considering evidence not presented to the state courts. However, for the reasons discussed supra, the Court concludes that Petitioner's claim of ineffective assistance of trial counsel, as presented in his postconviction proceedings, is procedurally defaulted and cannot therefore be considered by this Court. It follows, then, that expansion of the record to include evidence in support of that claim would be an exercise in futility.

To the extent that the state appellate court misapplied Ohio's doctrine of res judicata, this Court cannot overlook the state court's alternative consideration of the merits of Petitioner's claim of ineffective assistance of trial counsel. In that event, Pinholster applies and requires that this Court's review of that claim "is limited to the record that was before the state court that adjudicated the claim on the merits." Id., at 1398.

In any event, Petitioner must also satisfy the requirements of 28 U.S.C. § 2254(e)(2) before he will be permitted to proffer evidence that he failed to present to the state courts. That statute provides as follows:

(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-
(A) the claim relies on-
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2). Petitioner cannot meet this standard here because none of the evidence now proffered by Petitioner was unavailable to him at the time of trial.

In any event, consideration of the cellular phone records and associated materials now proffered by Petitioner would not necessarily assist him. The record reflects that Petitioner

made three calls between 7:42 and 7:43 p.m. from his cell phone in the vicinity of a cell tower one-half mile from Jones' apartment and made two calls on his cell phone between 8:54 and 8:57 p.m. in the vicinity of a cell tower near his home.
State v. Graggs, 2010 WL 4793371, at *7. Additionally, a "torn-off fingertip of a green latex glove" found underneath or near the victim's body contained Petitioner's DNA. Id. The unexplained presence of Petitioner's DNA in close proximity to the victim's body, Petitioner's expenditure of large amounts of cash shortly after the murder and robbery, and evidence indicating that Petitioner was near the scene of the crime at approximately the time that the crime took place offer powerful evidence of Petitioner's guilt. Moreover, although Petitioner makes much of the fact that some prosecution witnesses testified that they heard shots at 9:00 or 9:21 p.m., there was also evidence that Marcus Jones and his cousin Dominic returned to the apartment at approximately 9:15 p.m. and found the victim already dead. See id. at *1. Even assuming that the proffered evidence may be considered in support of Petitioner's gateway claim of actual innocence, that evidence fails to establish Petitioner's actual innocence so as to permit this Court to address the merits of Petitioner's otherwise procedurally defaulted claims. See Schlup, 513 U.S. at 316.

The United States Court of Appeals for the Sixth Circuit has not expressly addressed the issue of what evidence qualifies as "new" for actual innocence purposes and the Circuit Courts are split on the issue. See, e.g., Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005) ("Evidence is only new if it was 'not available at trial and could not have been discovered earlier through the exercise of due diligence.' ") (quoting Amrine v. Bowersox, 238 F.3d 1023, 1029 (8th Cir. 2001)); Hubbard v. Pinchak, 378 F.3d 333, 340 (3d Cir. 2004) (requiring new evidence that was not available at the time of trial); Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003)("All Schlup requires is that the new evidence is reliable and that it was not presented at trial."); Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003) (requiring "newly-presented," not newly-available, evidence).
--------

In short, Petitioner has failed to show this is the "extraordinary case where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496.

Petitioner's Motion to Supplement the Evidence and Motion for Leave to Supplement the Evidence, Doc. Nos. 31, 32, are therefore DENIED.

It is RECOMMENDED that this action be DISMISSED.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed'n of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

______________________

Norah McCann King

United States Magistrate Judge


Summaries of

Graggs v. Warden, Ebanon Corr. Inst.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION
May 30, 2013
CASE NO. 2:12-CV-190 (S.D. Ohio May. 30, 2013)
Case details for

Graggs v. Warden, Ebanon Corr. Inst.

Case Details

Full title:JOHN Q. GRAGGS, Petitioner, v. WARDEN, LEBANON CORRECTIONAL INSTITUTION…

Court:UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Date published: May 30, 2013

Citations

CASE NO. 2:12-CV-190 (S.D. Ohio May. 30, 2013)

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