D'Ambrosio v. Bagley

• Court: U.S. District Court — Northern District of Ohio
• Writing for the Court: Kathleen McDonald O'Malley
• Citation: D'Ambrosio v. Bagley, 619 F.Supp.2d 428 (N.D. Ohio 2009)
• Decision Date: 27 April 2009
• Docket Number: No. 1:00CV2521.,1:00CV2521.
• Parties: Joe D'AMBROSIO, Petitioner, v. Margaret BAGLEY, Warden, Respondent.

619 F.Supp.2d 428

Joe D'AMBROSIO, Petitioner, v. Margaret BAGLEY, Warden, Respondent.

No. 1:00CV2521.

United States District Court, N.D. Ohio, Eastern Division.

April 27, 2009.

Jeffry F. Kelleher, Edward J. Sebold, John Q. Lewis, Jones Day, Cleveland, OH, Kerry Renker Green, Hahn, Loeser & Parks, Columbus, OH, for Petitioner.

Michael L. Collyer, Office of the U.S. Attorney, Northern District of Ohio, Cleveland, OH, Stephen E. Maher, Office of the Attorney General, Columbus, OH, for Respondent.

MEMORANDUM OF OPINION AND ORDER

KATHLEEN McDONALD O'MALLEY, District Judge.

Before the Court is a Joint Motion for Extension of Time to Comply with the Mandate to Retry Petitioner (ECF No. 211), filed by the Respondent (hereinafter, "the Warden") and the Cuyahoga County Prosecutor's Office (hereinafter, "the State") on March 4, 2009.¹ On September 11, 2008, this Court issued a conditional writ of habeas corpus instructing the State to either set aside Petitioner Joe D'Ambrosio's (hereinafter, "D'Ambrosio") conviction and death sentence or retry him within 180 days. (ECF No. 209.) Although the 180-day deadline imposed by the Court's conditional writ was set to expire on March 10, 2009, the Warden and the State asked the Court to continue that deadline. On March 5, 2009, following an on-the-record discussion with the parties, the Court issued a preliminary ruling extending its mandate for the limited purpose of allowing the parties sufficient time to file briefs and present testimony on this request in an evidentiary hearing. (ECF No. 217.)

For the following reasons, the Court DENIES THE REQUEST TO EXTEND THE EXISTING MANDATE and ORDERS D'AMBROSIO'S RECORD EXPUNGED, but will NOT BAR THE STATE'S REPROSECUTION of D'Ambrosio. Accordingly, the Court issues an unconditional writ of habeas corpus and orders the expungement of the existing state criminal records, but does not prohibit the State from proceeding with a reprosecution of D'Ambrosio to the extent the state courts continue to authorize such action. The Court delays its issuance of an unconditional writ for fifteen (15) days from the date of this Order, to allow time for the state trial court to resolve any bond issues raised by this ruling.²

I. Procedural History

A. Initial State Court Proceedings

This case has a lengthy history that is discussed in detail in this Court's prior rulings. See D'Ambrosio v. Bagley, No. 00-CV-2521, slip op., 2006 WL 1169926 (N.D.Ohio Mar. 24, 2006). The Court, accordingly, only summarizes certain pertinent facts here.

On September 24, 1988, a jogger found the body of Estel Anthony Klann in Doan Creek in Cleveland, Ohio. Shortly thereafter, on October 6, 1988, D'Ambrosio was indicted along with codefendant Thomas Michael Keenan (hereinafter "Keenan"), and charged with aggravated capital murder. D'Ambrosio pleaded not guilty to the charges and proceeded to trial before a three-judge panel on February 6, 1989. The trial court sealed the verdict on February 9, 1989, until the resolution of Keenan's trial. On February 21, 1989, largely on the testimony of a third co-defendant, Edward Espinoza (hereinafter, "Espinoza"), the court pronounced D'Ambrosio guilty on all counts. On February 23, 1989, the court sentenced D'Ambrosio to death. The Ohio Supreme Court upheld the conviction and sentence on appeal. State v. D'Ambrosio, 67 Ohio St.3d 185, 616 N.E.2d 909 (1993).

Keenan's trial proceeded before a jury, which found him guilty of aggravated murder and sentenced him to death. On direct appeal, the Ohio Supreme Court reversed Keenan's conviction. State v. Keenan, 66 Ohio St.3d 402, 613 N.E.2d 203 (1993). After retrial, Keenan again was convicted and sentenced to death in 1993. The Ohio Supreme Court upheld this conviction and death sentence. State v. Keenan, 81 Ohio St.3d 133, 689 N.E.2d 929 (1998).

B. Federal Habeas Proceedings

1. The Petition and Evidentiary Hearing

After his state court appeals and post-conviction efforts concluded, D'Ambrosio filed a notice of intent to file a petition for a writ of habeas corpus with this Court on October 3, 2000. (ECF No. 1.)³ After filing a petition, (ECF No. 22), D'Ambrosio subsequently filed an amended petition that included a claim pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). (ECF No. 81.) D'Ambrosio also requested and received discovery pertaining to his Brady claim. (ECF No. 100.) On December 2, 2002, the Court ordered the Cuyahoga County Prosecutor, the Cuyahoga County Coroner, the Cleveland Police Department, and the Cleveland Heights Police Department to provide D'Ambrosio's habeas counsel with materials in their possession. Of particular relevance to the instant proceedings, the Court instructed the State to provide the following:

1. The complete and unredacted case files in the matter of State v. D'Ambrosio, Case No. CR 232189-A.

2. The complete and unredacted case files in the matter of State v. Keenan, Case No. CR 232189-B.

3. The complete and unredacted case files in the matter of State v. Espinoza, Case No. CR 232189-C.

4. The complete and unredacted case materials in the possession of the Cuyahoga County Coroner, Case No. 201989; Autopsy Case No. 57381 as well as all materials collected and reports made by the investigating S.I.U. unit;

* * *

6. Any and all reports noting the collection and/or testing or test results of biological evidence, including but not limited to D.N.A., blood, saliva, semen, hair, fingernail scrapings that may be in the possession of the Cuyahoga County Coroner and the Cuyahoga County Prosecutor S.I.U. which were collected in relation to the investigation of Anthony Klann's murder.

(ECF No. 100, at 1-2) (emphasis added).

After believing he had acquired all Court-ordered discovery, D'Ambrosio filed a motion for summary judgment and a motion for an evidentiary hearing. (ECF Nos. 114; 116.) In an Order dated March 4, 2004, the Court denied D'Ambrosio's motion for summary judgment without prejudice, but granted the motion for an evidentiary hearing on three of the grounds for relief raised in the petition: actual innocence, spoliation of evidence, and the Brady claim. (ECF No. 158.)

The Court held a three-day evidentiary hearing, during which D'Ambrosio developed his Brady and spoliation claims by establishing that the State withheld and/or did not produce evidence that both undermined the State's theory of how the murder occurred and implicated another individual's motive to commit it. Trial counsel Ralph DeFranco testified that, had he been in possession of the alleged Brady evidence prior to trial, he could have impeached several of the prosecution's witnesses, especially their most crucial witness, Espinoza. Habeas counsel also attempted to demonstrate D'Ambrosio's actual innocence through the testimony of four alibi witnesses who testified that they were with D'Ambrosio on the night of Klann's murder. (ECF No. 193, at 10-17.)

2. The Court's Order Granting D'Ambrosio's Petition

The Court issued an Opinion granting in part and denying in part D'Ambrosio's petition on March 24, 2006. (Id.) The Court found that D'Ambrosio's actual innocence claim was not well-taken, in large measure because of the extraordinarily high standard of review applied to such a claim. The Court reasoned that D'Ambrosio could not demonstrate that he was "probably innocent" under the Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), standard of actual innocence because of certain discrepancies between the evidentiary hearing witnesses' testimony and D'Ambrosio's own trial testimony. (Id. at 76.)

The Court did, however, issue a conditional writ of habeas corpus based on the State's Brady violations. The Court held that the State failed to provide D'Ambrosio with: (1) information that another individual, Paul "Stoney" Lewis, had a motive for killing Klann; (2) reports indicating that two detectives initially assigned to the Klann murder investigation concluded that Klann actually had been killed elsewhere and his body subsequently dumped at Doan Creek; (3) a cassette tape of a call to police from Angelo Crimi, who implicated other suspects in Klann's murder; (4) trace evidence reports indicating that Klann was not wearing shoes or under-shorts when his body was discovered; and (5) a police report in which Linda Hudak stated that she saw Klann alive the night after the State asserted Klann was killed. (ECF No. 193, at 62.)⁴ Because of these violations, the Court ordered the Respondent either to set aside D'Ambrosio's conviction for aggravated murder and his sentence of death or to retry him within 180 days.⁵ (Id. at 107.) On its own motion, the Court stayed its issuance of the conditional writ pending the parties' appeal.

The parties cross-appealed the Court's decision, which the Sixth Circuit affirmed in D'Ambrosio v. Bagley, 527 F.3d 489, 499 (6th Cir.2008). The Sixth Circuit found that, "[b]ecause the evidence that the prosecution suppressed would have had the effect of both weakening the prosecution's case and strengthening the defense's position that someone else committed the murder, there is a reasonable probability that the outcome of the trial could have been different." Id. It thereafter issued its mandate. (ECF No. 208.) On September 11, 2008, this Court issued an order in compliance with the Sixth Circuit's mandate, stating that, "[t]he Respondent shall either: (1) set aside D'Ambrosio's convictions and sentences as to all counts of the indictment, including the sentence of death; or (2) conduct another trial. This shall be done within 180 days from the effective date of this Order." (ECF No. 209.) The Court also lifted the stay of the proceedings, permitting D'Ambrosio's retrial to go forward. (Id.)

C. The State Court Retrial

In September, 2008, the State requested a retrial, which Cuyahoga County Common Pleas Court Judge Joan C. Synenberg set for March 2, 2009, eight days before the expiration of the...