Barton v. Warden, S. Ohio Corr. Facility

• Decision Date: 15 May 2015
• Docket Number: No. 12–4003.,12–4003.
• Parties: Thomas A. BARTON, Petitioner–Appellant, v. WARDEN, SOUTHERN OHIO CORRECTIONAL FACILITY, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

786 F.3d 450

Thomas A. BARTON, Petitioner–Appellant

v.WARDEN, SOUTHERN OHIO CORRECTIONAL FACILITY, Respondent–Appellee.

No. 12–4003.

United States Court of Appeals, Sixth Circuit.

Argued: March 12, 2014.

Decided and Filed: May 15, 2015.

ARGUED:Christopher J. Pagan, Repper, Pagan, Cook, Middletown, Ohio, for Appellant. M. Scott Criss, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF:Christopher J. Pagan, Repper, Pagan, Cook, Middletown, Ohio, for Appellant. M. Scott Criss, Office Of The Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: MOORE, WHITE, and DONALD, Circuit Judges.

OPINION

PER CURIAM.

Thomas Barton appeals the denial of his petition for a writ of habeas corpus by the United States District Court for the Southern District of Ohio. He contends that the State's withholding of evidence that would have impeached the sole witness against him entitles him to relief under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and he asserts that the district court erroneously accorded deference under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104–132, 110 Stat. 1214, to the state trial court's decision to the contrary. We agree. For the reasons set forth below, we REVERSE the judgment of the district court and CONDITIONALLY GRANT Barton's federal habeas petition, unless the State retries Barton within six months.

I. BACKGROUND

A. Factual and Procedural History

This case comes to us following a lengthy procedural history, recounted in detail in the report and recommendation of the federal magistrate judge to whom Barton's petition was initially referred. R. 44 (Magistrate Judge's Report and Rec. at 1–46) (Page ID # 2395–2440). The district court affirmed and adopted this report and recommendation, along with the recommendations in a supplemental report issued by the magistrate judge in response to Barton's objections. See R. 49 (Magistrate Judge's Supplemental Report and Rec. at 1–12) (Page ID # 2488–99); R. 52 (Dist. Ct. Op. and Order at 1) (Page ID # 2518).

Only one of the claims that Barton raised before the district court, and in the state courts before that, is at issue on appeal. See id. at 9–10 (Page ID # 2526–27); Pet'r Br. at 1, 10. Accordingly, we reproduce here the district court's brief summary of the prior state-court proceedings, and elucidate additional facts where necessary:

This case ... all began in 1995 with the killing of Petitioner's wife, Vickie [sic] Barton (“Vicki”) during a burglary at her home.... Essentially the case of Vickie's [sic] murder went cold as detectives cleared Petitioner as a suspect after it was learned that he was at another location at the time of her death. In 1998, however, a career criminal named Gary Henson was arrested in an unrelated burglary, and Henson told the detective that his half-brother William Phelps had been involved romantically with Vickie [sic] Barton, and went to her house the day she was killed to steal things from her residence. According to Detective Hensley, who interviewed Henson, Henson said Phelps panicked when he found Vickie [sic] was at the house, and he shot her. Henson further stated he believed that Phelps' subsequent suicide, four months after the incident, was the result of his having killed Vickie. [sic]

Armed with such information, the Warren County Sheriff's Office exhumed Phelps' body to compare his DNA with DNA found at the crime scene. There was no match and the crime remained unsolved.

In April 2003, a “cold case squad” re-examined the case and discovered that in Petitioner's 911 call the day of the killing, he referenced needing to call “Phelp man.”¹ As such, the detectives linked Petitioner to Gary Henson, whose name was in Phelps' file.

Detectives interviewed Henson again in August 2003, at which time he provided information implicating Petitioner in his wife's killing. Henson later testified at Petitioner's trial, stating Petitioner paid Phelps $3,000 to go to his and his wife's residence to scare her.² Henson said that initially Petitioner had sought Henson's help with such endeavor, but that as Henson was in jail at the time, he could not help stage the burglary.

Henson further testified that when Phelps and an unidentified accomplice went to the house to scare Vicki, she surprised them, his accomplice “panicked,” and then shot and killed her. Phelps also told Henson that the accomplice sexually assaulted Vicki.

Under cross examination, Henson denied originally telling detectives that Phelps had shot and killed Vicki, and testified that the “he” to whom he was referring who shot Vicki was rather the unidentified accomplice. The defense called Detective Hensley, who had interviewed Henson in 1998, who testified that in Hensen's [sic] interview at such time, Henson referred to Phelps as the shooter instead of the accomplice.

The jury found Petitioner guilty as charged after trial in February 2005. The trial court ultimately merged Counts II and III of the Indictment and sentenced Petitioner to not less than five nor more than twenty-five years on Count I of the Indictment (for involuntary manslaughter), and to not less than ten nor more than twenty-five years on Count II of the Indictment (aggravated burglary), both sentences to be served concurrently.³

Petitioner subsequently appealed his sentence, which was denied on the appellate level, and which the Ohio Supreme Court dismissed as not involving any substantial question. Petitioner also filed a petition for post-conviction relief pursuant to O.R.C. § 2953.21, which was denied on the trial court level. The appellate court affirmed the denial, and the Ohio Supreme Court ultimately dismissed the appeal as again, not involving any substantial question.

R. 52 (Dist. Ct. Op. and Order at 1–3) (Page ID # 2518–21).

Relying on 28 U.S.C. § 2254, Barton then filed a habeas petition in federal court, raising four grounds for relief. R.1 (Habeas Petition at 2–3) (Page ID # 2–3). Barton later withdrew one ground, see R. 19 (Mem. in Opp'n to the State's Mot. to Dismiss and Barton's Cross–Mot. for Summ. J. at 1 n. 1), and the magistrate judge rejected the remaining three, finding them to be procedurally defaulted, without merit, or both. R. 44 (Magistrate Judge's Report and Rec. at 25, 32, 45) (Page ID # 2419, 2426, 2439). In his initial report, the magistrate judge also concluded that a certificate of appealability (“COA”) was unwarranted. Id. at 46 (Page ID # 2440).

Upon reviewing Barton's objections to his report and recommendation, however, the magistrate judge issued a supplemental report in which he recommended granting a COA as to Barton's Brady claim.⁴ R. 49 (Magistrate Judge's Supplemental Report and Rec. at 10) (Page ID # 2497). The district court agreed. R. 52 (Dist. Ct. Op. and Order at 9) (Page ID # 2526).

B. Barton's Brady Claim

At Barton's trial, the sole witness against him—Gary Henson—“testified that he had previously committed staged burglaries for hire. The state maintained that the burglary of [Barton's] residence appeared to have been staged as well.” R. 11–2 (Ohio Ct. of Appeals Op. Affirming Decision to Den. Def.'s Pet. For Post–Conviction Relief 6) (Page ID # 741). Prior to trial, “the state provided [Barton's] counsel with a police report documenting a burglary committed at the Lebanon residence of James and Ann Kelly in 1993. The Kelly burglary was suspected to have been staged due to the fact that items of personal property were placed on the floor and the house was not ransacked.” Id.

At no point during Barton's prosecution did the State inform him that it had re-opened its investigation into the Kelly case after Henson implicated Barton in Vicki's homicide. When officers questioned Jim Kelly in 2004, shortly before Barton's trial, Kelly vehemently denied hiring Henson to stage a burglary in order to scare his family into moving to the city. See, e.g., R. 11–2 (Ann Kelly Affidavit at 1) (Page ID # 578). He reiterated these denials in the face of police threats to charge him with obstruction of justice should he decide not to testify against Barton. Id. at 2 (Page ID # 579). Eventually, officials decided to drop the matter, filing the original police report as Brady material and handing it over to Barton's counsel. Still, “[n]othing in th[is] police report provided to [Barton] connected Henson to the Kelly burglary”—the police simply turned over the report without further explanation. R. 11–2 (Ohio Ct. of Appeals Op. Affirming Decision to Den. Def.'s Pet. For Post–Conviction Relief 6) (Page ID # 741). Barton did not learn of the State's conversations with Kelly until after his trial, by dint of his own investigation.

C. State Court Post–Conviction Proceedings and Federal Habeas Proceedings

Barton first raised his Brady claim while seeking post-conviction relief in the Ohio Court of Common Pleas. See, e.g., R. 44 (Magistrate Judge's Report and Rec. at 21) (Page ID # 2415). He specifically challenged the State's failure to inform him (1) that Henson had told police that James Kelly had hired Henson to stage a burglary at the Kelly residence; (2) that the police had asked James Kelly whether he had hired Henson to stage such a burglary and threatened to charge Kelly with obstruction of justice if he did not testify against Barton; (3) that James Kelly had denied hiring Henson to stage a burglary, even in the face of these threats; and (4) that Henson had attributed a nearly identical motive to Kelly regarding why he wanted a burglary staged at his rural home—to scare his family into moving to the city.

The Court of Common Pleas denied Barton's claim. Its reasoning follows in its entirety:

Lastly, the third ground for relief is that the State failed to provide the defendant with Brady material. As the State points out a post-conviction relief petition is not a substitute for a direct appeal. By not raising any Brady issues on direct appeal, the defendant is barred from raising this issue here.

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