Bays v. Warden, Ohio State Penitentiary, Case No. 3:08-cv-076

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtMichael R. Merz
PartiesRICHARD BAYS, Plaintiff, v. WARDEN, Ohio State Penitentiary, Defendant.
Docket NumberCase No. 3:08-cv-076
Decision Date18 February 2012

RICHARD BAYS, Plaintiff,
v.
WARDEN, Ohio State Penitentiary, Defendant.

Case No. 3:08-cv-076

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

February 18, 2012.


District Judge Thomas M. Rose Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus action brought by Petitioner Richard Bays pursuant to 28 U.S.C. § 2254 and seeking relief from both his conviction for aggravated murder with death specifications and his resulting death sentence.

Mr. Bays is represented in this proceeding by appointed counsel who did not represent him in any direct appeal proceedings.

Statement of Facts

The Supreme Court of Ohio described the facts and circumstances leading to Mr. Bay's indictment, trial, convictions, and adjudged sentence of death as follows:

On November 15, 1993, appellant, Richard Bays, robbed and murdered Charles Weaver. Bays was convicted of aggravated murder with a death specification and sentenced to death
Seventy-six-year-old Charles Weaver lived in Xenia with his wife Rose. On November 15, 1993, Weaver's daughter, Betty Reed, went to her parents' house to see if they needed anything. Betty Reed and Rose Weaver decided to do some shopping and left the house

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together sometime between noon and 12:30 p.m. Between 1:30 and 2:30 that afternoon, Iris Simms (who lived near the Weavers' house) saw a slim man in his late twenties, with shoulder-length brown hair, walk onto Weaver's porch and approach the door.

FN1. Simms did not identify Bays in court; however, her description of the man on the porch is consistent with Bays's appearance.

Howard Hargrave, an acquaintance of Richard Bays, was standing around with two other people on Xenia's Main Street that afternoon when Bays approached him, out of breath, and asked whether Hargrave "knew anyone that had any drugs." According to Hargrave, Bays appeared "nervous" and "kept looking around." Hargrave noticed a red stain on Bays's T-shirt that looked like blood.

Betty Reed drove her mother home at about 5:30 p.m., accompanied by her son Michael. Dusk had fallen, and Betty noticed that no lights were on in the house, not even "a flicker of a television set." This was unusual enough that she and her son decided to escort Mrs. Weaver inside.

Michael Reed went in first. Turning on a light, he saw his grandfather's wheelchair standing empty. He then entered the kitchen. There he found Mr. Weaver lying on the floor. Michael told his mother to call 911.

Paramedics arrived in response to the 911 call, found Mr. Weaver dead, and summoned Xenia police officers to the scene. Officers found a shattered plastic tape recorder and a large, square-shaped battery charger with blood on it. The bedroom was in extreme disarray-a "total shambles," Betty Reed later testified- with drawers pulled out and their contents dumped on the floor. The bedroom had not been in that condition when Betty Reed and Mrs. Weaver left the house that afternoon.

Weaver's body was taken to the Montgomery County Coroner's Office. The ensuing autopsy showed that Weaver had suffered two stab wounds to the chest and three incised wounds on the neck. He also had several contusions, abrasions, and lacerations on top of his head, consistent with blows from a square, blunt object. The deputy coroner conducting the autopsy concluded that Weaver died of "a stab wound to the chest and blunt impact injuries to the head."

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On November 16, the day after the murder, Xenia police detective Daniel Savage decided to interview Richard Bays.
At first, Bays told Savage that he had not been at Weaver's house on the day of the murder. However, Savage told Bays that someone had seen him there and that "if his [Bays's] prints matched the ones on Mr. Weaver's front door, then I [Savage] would be asking him to explain it." Bays then admitted that he had been at Weaver's house around 2:00 p.m. on November 15. He said he had coffee with Weaver, chatted, and left by 2:15.
However, an inconsistency in Bays's statement aroused Savage's curiosity. Bays told Savage that Weaver had been sitting in his wheelchair during Bays's visit and had not taken out his wallet. Yet Bays had also said that Weaver had the wallet in his back pocket during the visit. If Weaver was sitting in the wheelchair, Savage wondered, how could Bays have known that the wallet was in Weaver's back pocket?
On November 19, an informant told Savage that Weaver's killer had dropped the wallet, along with some clothing he had worn during the crime, into a storm sewer near Bays's house. Based on this information, Savage and Detective Daniel Donahue interviewed Bays again on November 19. During this interview, Bays confessed to killing Weaver.
Bays told the detectives that he went to Weaver's house after smoking some crack. He asked Weaver to lend him $30, but Weaver said he had no money. So Bays picked up the battery charger and hit Weaver on the head with it twice. When the battery charger's handle broke off, Bays started to run away, but then Weaver shouted that he was going to call the police. Bays then picked up a portable tape recorder and went back to hit Weaver on the head with it. The blow shattered the recorder, so Bays dropped it and attacked Weaver with a sharp kitchen knife. Bays admitted that he cut Weaver's throat and thought that he stabbed him in the chest.
Weaver fell out of his wheelchair, and Bays took the wallet from Weaver's back pocket. Weaver's wallet contained $25 cash and $9 worth of food stamps. Bays then went into the bedroom and dumped out the contents of the drawers. Then he fled. He subsequently bought crack with Weaver's $25. Bays told the detectives that he threw Weaver's wallet down the storm sewer at the northwest corner of Second and Monroe Streets, along with the T-shirt and glove he had

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worn during the murder. At the end of Bays's statement, Savage placed him under arrest.
When detectives searched the storm sewer at Second and Monroe, they found the T-shirt, glove, and wallet, just as Bays had said. Betty Reed, who had given that wallet to her father, identified it in court.
While held in the county jail, Bays discussed his crime with another inmate, Larry Adkins. Adkins testified that Bays had told him that he "hit [Weaver] with a battery charger" and when Weaver fell from his chair, Bays "took his wallet and * * * stabbed him in the chest. Then he was almost on his way out and he turned around and cut [Weaver's] throat * * * to make sure he wasn't alive."
The Greene County Grand Jury indicted Bays on one count of aggravated murder under former R.C. 2903.01(A) and one under former R.C. 2903.01(B). Each count carried a felony-murder death specification under R.C. 2929.04(A)(7). The indictment also charged aggravated robbery.
Bays waived a jury and was tried to a three-judge panel. On Bays's motion, with the state's acquiescence, the trial court dismissed the count charging aggravated murder under R.C. 2903.01(A). At trial, Bays offered no evidence in the guilt phase. The panel found Bays guilty of aggravated murder, R.C. 2903.01(B), and aggravated robbery. After a penalty hearing, the panel sentenced Bays to death. Bays appealed this judgment to the court of appeals, which affirmed the convictions and sentence.

State v. Bays, 87 Ohio St.3d 15, 15-17 (1999).

State Court Proceedings

On or about June 14, 1994, the Greene County Grand Jury indicted Mr. Bays on one count of aggravated murder under [former] Ohio Revised Code § 2903.01(A), one count of aggravated murder under [former] Ohio Revised Code § 2903.01(B), and one count aggravated robbery under Ohio Revised Code 2911.02(A)(2). Appendix to Return of Writ, Vol. 1 at 58-60 (Doc. 35, 36)(hereinafter "App."). Mr. Bays waived his right to trial by jury. App. Vol. 4 at 208; Trial Transcript Vol. 2 at 4-7 (hereinafter "Tr."), and was tried by a three-judge panel. App. Vol.

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4 at 209; Tr. Vol. 2 at 7.

The three-judge panel commenced the guilt phase of Mr. Bays' trial on December 6, 1995. Id. On Mr. Bays' motion and with the state's acquiescence, the trial court dismissed the count charging Mr. Bays with aggravated murder under Ohio Revised Code § 2903.01(A). See Tr. Vol. 3 at 361. Mr. Bays did not present any evidence during the guilt phase of his trial. Tr. Vol. 3 at 342. On December 8, 1995, the three-judge panel found Mr. Bays guilty of aggravated murder in violation of Ohio Revised Code § 2903.01(B) as charged in count one of the Indictment, guilty of the specification related thereto, and guilty of aggravated robbery in violation of Ohio Revised Code § 2911.02(A)(2) as charged in count two of the Indictment. Tr. Vol. 3 at 361-62; App. Vol. 4 at 216-17.

On December 11, 1995, the three-judge panel held the mitigation phase of Mr. Bays' trial. Tr. Vol. 3 at 364. The panel announced on December 15, 1995, that it found the aggravating circumstances in the specification in count one of the indictment outweighed the mitigating factors. Id. at 489. The panel then sentenced Mr. Bays to death on count one (aggravated murder) and to an indefinite term of ten to twenty-five years on count two of the indictment (aggravated robbery) with the ten-year minimum term being actual...

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