Delawder v. Warden, Case No. 1:16-cv-743

• Decision Date: 19 January 2018
• Docket Number: Case No. 1:16-cv-743
• Parties: RODNEY E. DELAWDER, Petitioner, v. Warden, Ross Correctional Institution Respondent.
• Court: U.S. District Court — Southern District of Ohio

RODNEY E. DELAWDER, Petitioner, v. Warden, Ross Correctional Institution Respondent.

Case No. 1:16-cv-743

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

January 19, 2018

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Rodney Delawder, is before the Court for adjudication on the Amended Petition (ECF No. 21), the State Court Record (ECF No. 22), the Return of Writ (ECF No. 23), and Petitioner's Reply (ECF No. 24) and Information to the Court (ECF No. 25). The Magistrate Judge reference in the case was recently transferred to the undersigned to help balance the Magistrate Judge workload in the Western Division (ECF No. 26).

Procedural History

On February 16, 2013, Petitioner was indicted by the Lawrence County grand jury on charges of murder with a firearm specification, improperly discharging a firearm into a habitation, and felonious assault. The case was tried to a jury after Petitioner's motion to suppress was denied, and he was convicted on all counts and sentenced to an aggregate term of twenty-two years to life imprisonment. He appealed to the Fourth District Court of Appeals which affirmed the trial court's judgment. State v. Delawder, 2015-Ohio-1857, 2015 Ohio App. LEXIS 1774 (4^th Dist. May 12, 2015), appellate jurisdiction declined, 143 Ohio St. 3d 1448 (2015). Delawder filed his Petition for habeas corpus in this Court on July 10, 2016, and later amended it with court permission. His Amended Petition pleads the following grounds for relief:

Ground One: Trial court committed reversible error in denying motion to suppress DNA testing by allowing the State to present evidence of defendant's DNA on the shotgun shell, when the State incorrectly advised counsel that the DNA was contaminated and not tested, when it in fact was preserved but not tested by the State until day four of the trial.

Supporting Facts: The trial court denied a motion to suppress evidence of DNA taken from a shotgun shell, where said DNA was not produced by the State until day four of the trial, and the State had previously lied to defense counsel and stated that the DNA was not tested because the shell was contaminated. Not only does this give rise to a right to suppress, but also is indicative of clear evidence that the DNA results ultimately used to obtain conviction was in fact "contaminated" and thus inadmissible, and accordingly, petitioner Delawder has not been proven guilty of all elements of the offense beyond a reasonable doubt.

Ground Two: Trial counsel's refusal to call expert witnesses and character witnesses, amounted to ineffectiveness to the extent to deprivation of the right to a fair trial.

Supporting Facts: The defense counsel was deficient in failing to call an expert, in light of the above Ground One. Because an expert could have actually re-examined the DNA of the shotgun shell, and make the finding that prosecutions claims all along (until day four of trial) that the shell was "contaminated", was actually the correct conclusion, and therefore, it is inadmissible and said conviction cannot stand as a matter of law. It was further ineffectiveness to fail to call character witnesses for petitioner, which could have attested to character of Delawder which is contrary to that of a murderer. This was a [jury]-trial, and the jurors were presented with "contaminated" evidence, and said jurors did not even know about the contamination, all due to ineffective counsel at trial.

(Amended Petition, ECF No. 21, PageID 570, 572.)

Petitioner's Objections to Consideration of the Return of Writ

1. It was untimely filed.

Petitioner makes no substantive response to the Return. Instead he argues the Court should ignore the Return because it was filed late and the law of the case doctrine bars the arguments made in the Return (ECF No. 24).

Petitioner's calculation that the Return was filed late is based on his belief that the time for its filing is controlled by 28 U.S.C. § 2243. The time limits set in that statute are adjustable by the Court. When she initially ordered the State to answer, Magistrate Judge Bowman gave the State sixty days from July 15, 2016, to do so (Order, ECF No. 4, PageID 206). In lieu of an answer, the State initially filed, within the time Judge Bowman had allowed and then extended, a Motion to Dismiss (ECF No. 11). Because a motion to dismiss is a dispositive motion on which a Magistrate Judge may not make a final ruling in the absence of consent of the parties, that Motion was not finally disposed of until August 21, 2017 (ECF No. 20). The Amended Petition contains a Certificate of Service that it was mailed June 23, 2017 (ECF No. 21, PageID 581), and a notation that it was scanned at the prison on June 26, 2017, and received by the Clerk of Court on July 5, 2017, id. at PageID 565. However, it could not be formally filed until Judge Barrett had granted permission for the filing, which occurred on August 21, 2017. Neither Judge Barrett nor Judge Bowman set a new date for a return of writ, nor had Petitioner asked the Court to set a new date. The Return was actually filed November 3, 2017, seventy-four days after theAmended Petition was formally docketed. Since there was no set deadline, the Return was not untimely filed.

Petitioner relies on Curtis v. Perini, 301 F. Supp. 444 (N. D. Ohio 1968), aff'd, 413 F.2d 546 (6^th Cir. 1969). In that case Judge Young refused to consider a return of writ that was filed several days late. This did not result in an issuance of the writ, however; Curtis's petition was dismissed. Petitioner relies on Cristini v. McKee, 526 F.3d 888 (6^th Cir. 2008), and Dickens v. Jones, 203 F. Supp. 2d 354 (E.D. Mich. 2002), for the proposition that any well-pleaded allegations in a habeas petition not timely opposed must be deemed admitted. Neither case stands for that proposition.

Petitioner asserts the Motion to Dismiss was improper in lieu of an answer because the Court had not ordered it. The Rules Governing § 2254 Cases do not preclude motions to dismiss raising affirmative defenses, and this Court regularly entertains such motions, even in capital cases. Unlike a civil defendant, the respondent in a habeas case does not get notice of the Petition until the Court issue an order for answer or to show cause, so respondents have no occasion until then to raise defenses which may dispose of the case.

2. It is Barred by the Law of the Case Doctrine

Petitioner next argues that Respondent's arguments in the Return of Writ are barred by the law of the case doctrine because they were not previously raised in the Motion to Dismiss (Reply, ECF No. 24, PageID 1290).

Under the doctrine of law of the case, findings made at one point in the litigation become the law of the case for subsequent stages of that same litigation. United States v. Moored, 38F.3d 1419, 1421 (6^th Cir. 1994), citing United States v. Bell, 988 F.2d 247, 250 (1^st Cir. 1993). "As most commonly defined, the doctrine [of law of the case] posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618 (1983), citing 1B Moore's Federal Practice ¶0.404 (1982); Patterson v. Haskins, 470 F.3d 645, 660-61 (6^th Cir. 2006); United States v. City of Detroit, 401 F.3d 448, 452 (6^th Cir. 2005). "If it is important for courts to treat like matters alike in different cases, it is indispensable that they 'treat the same litigants in the same case the same way throughout the same dispute.'" United States v. Charles, 843 F.3d 1142, 1145 (6^th Cir. 2016)(Sutton, J.), quoting BRYAN A. GARNER, et al., THE LAW OF JUDICIAL PRECEDENT 441 (2016).

Petitioner's argument misapplies the law of the case doctrine. Under law of the case, earlier judicial decisions in a case are settled law for later stages of the same case. If this Court had decided earlier that Respondent's arguments for dismissal were mistaken, the doctrine would apply to attempted resurrection later of the same arguments. Law of the case does not act to bar consideration of arguments not made at an earlier stage of the case, so long as they are properly raised later.

Even if the Court has decided a legal issue, parties are free to seek reconsideration and that often happens in habeas corpus cases, particularly those challenging a death sentence.

In sum, the Court is required to consider the substance of Respondent's Return.

Analysis

Ground One: Failure to Suppress DNA Evidence

Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

In the Return of Writ, Respondent argues that a claim of error in admission of DNA evidence, as made in the First Ground for Relief, is a question of state law which is not cognizable in federal habeas corpus (ECF No. 23, PageID 1275-78). To the extent the First Ground raises a claim under Brady v. Maryland, 373 U.S. 83 (1963), Respondent asserts the Fourth District's decision is not an objectively unreasonable application of Brady and its progeny. Id. at PageID 1278-84.

The victim in this case, John McKnight, was shot with a shotgun and later died. Police recovered the shotgun and sent it to the Ohio Bureau of Criminal Investigation (BCI) for DNA testing.

[*P5] In discovery the state provided Delawder with copies of reports from the Bureau of Criminal Investigation ("BCI")

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