Marshall v. Warden, Ross Corr. Inst., Case No. 1:09-cv429

• Decision Date: 04 September 2012
• Docket Number: Case No. 1:09-cv429
• Parties: JAMES MARSHALL, Petitioner, v. Warden, Ross Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JAMES MARSHALL, Petitioner,

v.Warden, Ross Correctional Institution, Respondent.

Case No. 1:09-cv429

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

September 4, 2012

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

DECISION AND ORDER DENYING MOTIONS TO EXPAND THE

RECORD AND FOR EVIDENTIARY HEARING;

REPORT AND RECOMMENDATIONS

Petitioner James Marshall brings this habeas corpus action pro se pursuant to 28 U.S.C. § 2254 to seek relief from his convictions in the Hamilton County Common Pleas Court on counts of murder, involuntary manslaughter, trafficking in and possession of marijuana, and firearm specifications (Petition, Doc. No. 2, ¶ 5, PageID 2).

Marshall pleads the following Grounds for Relief:

Ground One: The judgment of conviction is contrary to law and to the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States in that there was insufficient evidence adduced to establish each and every element of the offense beyond a reasonable doubt.

Ground Two: The judgment of conviction is contrary to the manifest weight of the evidence.

Ground Three: The trial court erred to the prejudice of the appellant by denying his motions for judgment of acquittal pursuantto [Ohio] Crim R. 29.

Ground Four: The trial court erred when it allowed the State to present evidence of Appellant's prior act of using a false name in a misdemeanor probation violation case.

Ground Five: Appellant's due process rights were violated because the State committed prosecutorial misconduct during trial.

Ground Six: The trial court erred when it failed to grant Appellant's motion for a new trial.

Ground Seven: The trial court erred to the prejudice of Appellant by imposing a sentence that is contrary to law.

Ground Eight: The judgment of conviction is contrary to law and to the Sixth Amendment to the Constitution of the United States in that Appellant did not receive effective assistance of counsel.

(Petition, Doc. No. 2, PageID 6-15.)

Ground Nine: The 5th and 14th Amendment Rights were violated do [sic] to the Due Process and Equal Protection [Clauses] to the U.S. Constitution. In that the Trial Court and Appeals Court denied and refuse[d] to grant a motion for leave to file delayed motion for new trial based on newly-discovered evidence. Pursuant to [Ohio] Crim. R. 33. This case is one of "actual innocence."

Ground Ten: The Trial Court erred and abused its discretion in violation of Article 1, section 5 and 6 of the Ohio Constitution and violated Petitioners Due Process Right by making his own accusations in that all affiants were part of a scheme. Rather than applying case law to support his findings.

(Motion to Amend, Doc. No. 26, PageID 1646, 1648.)

Procedural History

Petitioner Marshall was indicted on three separate indictments by the Hamilton County grand jury, all arising from the same set of occurrences. In Case No. B0506040, he and three co-defendants were charged with one count of murder with a firearm specification. In Case No. B0600264, he and one co-defendant were charged with one count of involuntary manslaughter, also with a firearm specification. Finally, in Case No. B0602212, he was indicted on two counts of trafficking in marijuana and one count of possessing marijuana. The indictments were consolidated, but then the co-defendants were severed for trial on Marshall's motion. A jury found him guilty as charged on all counts and specifications. Marshall's pre-sentence motion for new trial was denied and he was sentenced to an aggregated term of imprisonment of twenty-one years to life.

On delayed direct appeal, Marshall pled the following assignments of error:

1. The judgment of conviction is contrary to law and to the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States in that there was insufficient evidence adduced to establish each and every element of the offense beyond a reasonable doubt.

2. The judgment of conviction is contrary to the manifest weight of the evidence.

3. The trial court erred to the prejudice of appellant by denying his motions for judgment of acquittal pursuant to Crim. R. 29.

4. The trial court erred when it allowed the state to present evidence of defendant-appellant's prior act of using a false name in a misdemeanor probation violation case.

5. Appellant's due process rights were violated because the State committed prosecutorial misconduct during the trial.

6. The trial court erred when it failed to grant appellant's motion for a new trial.

7. The trial court erred to the prejudice of defendant-appellant by imposing a sentence that is contrary to law.

8. The judgment of conviction is contrary to law and to the Sixth Amendment to the Constitution of the United States in that the appellant did not receive effective assistance of [trial] counsel.

(Appellant's Brief, Return of Writ, Ex. 19, PageID 279.) The court of appeals reversed the conviction for involuntary manslaughter, vacated the separate sentences for trafficking in and possession of marijuana, and otherwise affirmed the conviction. State v. Marshall, 175 Ohio App. 3d 488 (Ohio App. 1st Dist. Mar. 7, 2008). The Ohio Supreme Court declined jurisdiction over a further appeal.

On December 22, 2006, Marshall filed a petition for post-conviction relief under Ohio Revised Code § 2953.21, claiming he had newly-discovered a witness who would exonerate him. The trial court denied relief, the court of appeals affirmed, and the Ohio Supreme Court again declined jurisdiction.

On May 6, 2008, pursuant to the court of appeals' remand, Marshall was resentenced to the twenty and one-half years to life sentence he is now serving. He supplemented counsel's Anders brief on appeal, but the court of appeals found there were no appealable grounds and no further appeal was taken to the Ohio Supreme Court.

Marshall filed his original habeas Petition on June 19, 2009 (Doc. No. 2). On April 12, 2010, Marshall filed a motion for leave to file a delayed motion for new trial in the Hamilton County Common Pleas Court. On Marshall's Motion and Judge Hogan's recommendation, Judge Barrett stayed this case August 11, 2010, to permit Marshall to exhaust that motion for new trial and/or a successive petition for post-conviction relief based on a claim of actual innocence (Doc.Nos. 20, 22). On May 15, 2012, Marshall reported to this Court that he had exhausted those state court remedies and moved for reinstatement (Doc. No. 25). The case was reopened and, Judge Hogan having retired in the interim, the case was transferred to this judge on May 21, 2012 (Doc. Nos. 28, 29). At the same time, Marshall filed a Motion to Amend (Doc. No. 26) which was granted without opposition from the State (Doc. No. 34). The Warden also filed a Supplemental Return of Writ (Doc. No. 33) and Marshall has filed a Reply (Doc. No. 37).

Motion to Expand the Record

Contemporaneous with his Reply, Marshall has filed a Motion to Expand the Record pursuant to Rule 7 of the Rules Governing § 2254 Cases to include a transcript of proceedings before the grand jury (Doc. No. 36). In the body of that Motion, he says he has "submitted a request for Grand Jury Transcripts pursuant to Habeas Rule 6." Id. at PageID 3272. There is no other motion, either pending or previously filed, which seeks discovery of the grand jury transcripts, so this judge reads the Motion as both seeking to have the transcripts produced and then adding them to the record.

A habeas petitioner is not entitled to discovery as a matter of course, but only upon a fact-specific showing of good cause and in the Court's exercise of discretion. Rule 6(a), Rules Governing §2254 Cases; Bracy v. Gramley, 520 U.S. 899 (1997); Harris v. Nelson, 394 U.S. 286 (1969); Byrd v. Collins, 209 F.3d 486, 515-16 (6th Cir. 2000). Before determining whether discovery is warranted, the Court must first identify the essential elements of the claim on which discovery is sought. Bracy, citing United States v. Armstrong, 517 U.S. 456 (1996). The burden of demonstrating the materiality of the information requested is on the moving party. Stanford v.Parker, 266 F.3d 442 (6th Cir. 2001), citing Murphy v. Johnson, 205 F. 3d 809, 813-15 (5th Cir. 2000). "Even in a death penalty case, 'bald assertions and conclusory allegations do not provide sufficient ground to warrant requiring the state to respond to discovery or require an evidentiary hearing.'" Bowling v. Parker, 344 F.3d 487 (6th Cir. 2003)(quoting Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001.)

Rule 6 does not "sanction fishing expeditions based on a petitioner's conclusory allegations." Williams v. Bagley, 380 F.3d 932, 974, (6th Cir. 2004), citing Rector v. Johnson, 120 F.3d 551, 562 (5th Cir. 1997); see also Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). "Conclusory allegations are not enough to warrant discovery under [Rule 6]; the petitioner must set forth specific allegations of fact." Id., citing Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994).

Petitioner has not made any showing or even an argument as to how the grand jury transcripts would be supportive of any of his claims. Furthermore, grand jury proceedings are traditionally kept secret. "[T]he proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings." United States v. Sells Engineering, Inc., 463 U.S. 418, 424 (1983)(quoting Douglas Oil Co. v. Petrol Stops Northeast, 441 U.S. 211, 218-219 (1979). Cited favorably in Rehberg v. Paulk, 566 U.S. ____, 2012 U.S. LEXIS 2711 (Apr. 2, 2012). In the absence of some showing of relevance to one of the pending claims and materiality, the request to discover grand jury proceedings and then to make them public by including them in the record is DENIED.

Motion for Evidentiary Hearing

Marshall has also filed, contemporaneous with his Reply, a Motion for Evidentiary Hearing (Doc. No. 38). Petitioner asserts he is entitled to an evidentiary hearing if the following (...