McGlothin v. Jackson

• Decision Date: 15 October 2013
• Docket Number: Case No. 1:09-cv-48
• Parties: CAMERON McGLOTHIN, Petitioner, v. WANZA JACKSON, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

CAMERON McGLOTHIN, Petitioner, v. WANZA JACKSON, Warden, Respondent.

Case No. 1:09-cv-48

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

October 15, 2013

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pursuant to 28 U.S.C. § 2254 by Cameron McGlothin to obtain relief from his conviction and life sentence in the Hamilton County Common Pleas Court on charges of murder, having weapons while under a disability, and aggravated robbery and robbery with firearm specifications (Petition, Doc. No. 1, PageID 1, ¶¶ 1, 3, 5). McGlothin, represented by counsel, pleads the following Grounds for Relief:

Ground One: Petitioner was denied Due Process of Law pursuant to the Fourteenth Amendment of the United States Constitution and deprived of fundamental fairness in the trial process when the trial court refused to grant a new trial, or hold a hearing, after the true killer came forward with an affidavit in which he exonerated Petitioner.

Supporting Facts: The post-trial affidavit of Kevin Short (the true killer) constituted newly discovered evidence entitling McGlothin to a new trial. McGlothin had called Short as a witness to testify at trial on his behalf. However, the prosecutor had intimidated Short prior to him giving his testimony, and as a result, Short invoked his Fifth Amendment privilege against self-incrimination and refused to testify. After the trial, Short provided an affidavit in which he admitted he was the shooter and that McGlothin had nothing to do with the crime. Based on thisMcGlothin moved for a new trial. The trial court refused to grant McGlothin a new trial.

Ground Two: Petitioner's Fifth, Sixth, and Fourteenth Amendment rights were violated when the trial court permitted the prosecutor to amend the indictment.

Supporting Facts: Prior to trial the court permitted the prosecutor to change Petitioner's status from principal offender to complicitor; to change the underlying felony for the offense of felony murder from felonious assault to aggravated robbery; and to change the date of the offense after the trial had concluded.

Ground Three: Petitioner was denied due process of law in violation of the Fourteenth Amendment when the prosecutor engaged in numerous instances of prosecutorial misconduct.

Supporting Facts: The prosecutor improperly intimidated a defense witness, who as a result of this improper conduct refused to testify and provide exculpatory evidence for Petitioner; and the prosecutor made improper comments in closing argument that were not based on evidence, expressed his opinion of the veracity of Petitioner, including calling Petitioner "a liar."

Ground Four: The indictment is void as it relates to the charges of Murder, Aggravated Robbery, and Robbery.

Supporting Facts: Petitioner was deprived of his constitutional right to due process and his constitutional right to stand trial only upon an indictment issued by a grand jury when he was convicted and sentenced based upon an indictment that was void and structurally deficient due to the fact that it did not allege all the essential elements of the offenses of Murder, Aggravated Robbery, and Robbery.

A. The indictment for Aggravated Robbery and Robbery failed to allege the culpable mental state that was necessary to support a lawful conviction.

B. The Murder indictment failed to allege the culpable mental state necessary for the underlying felony offense to the felony murder charge necessary to support a lawful conviction.

Ground Five: Petitioner's Fifth and Fourteenth Amendment rights prohibiting Double Jeopardy were violated when the trialcourt sentenced him on both the Aggravated Robbery and Robbery charges.

Ground Six: Petitioner is entitled to federal habeas corpus relief as he has presented evidence that establishes his "actual innocence."

(Petition, Doc. No. 1.)

Procedural History

McGlothin was indicted in 2005 by the Hamilton County Grand Jury on charges of murder, having weapons while under disability, aggravated robbery, and robbery with the first, third, and fourth counts having appended firearm specifications. He was convicted on all counts. After denial of his motion for new trial, he appealed to the First District Court of Appeals which affirmed the conviction. State v. McGlothin, 2007 Ohio 4707, 2007 Ohio App. LEXIS 4227 (1^st Dist. Sept. 14, 2007). The Ohio Supreme Court declined jurisdiction over a subsequent appeal. State v. McGlothin, 116 Ohio St. 3d 1480 (2008).

McGlothin filed a motion to vacate raising various claims which was denied by the trial court. The court of appeals affirmed, holding the trial court had properly recast the motion as a petition for post-conviction relief under Ohio Revised Code § 2953.21, but lacked jurisdiction to consider the merits of McGlothin's claims because the motion was untimely. State v. McGlothin, 2009 Ohio App. LEXIS 5919 (1^st Dist. Oct. 28, 2009). McGlothin took no appeal to the Ohio Supreme Court.

McGlothin filed an Application for Reopening under Ohio R. App. P. 26(B) on April 1, 2009. The court of appeals granted relief on the first assignment of error and remanded for resentencing regarding the aggravated robbery and robbery convictions. After resentencing,McGlothin again appealed, but the new sentence was affirmed and the Ohio Supreme Court declined further review. Both the court of appeals and the Ohio Supreme Court rejected a second Application to Reopen.

The Petition was filed here January 22, 2009 (Doc. No. 1), but stayed to allow exhaustion of state court remedies (Doc. No. 9). After exhaustion the Court reopened the case and ordered the Warden to file an answer (Doc. No. 14). The Warden did so on March 7, 2013 (Doc. No. 17). Judge Bowman also set a date for a reply of twenty-one days after the Return of Writ (Order, Doc. No. 14, PageID 602). However, that period has expired and no reply has been filed.

Analysis

Ground One: Denial of a New Trial

In his First Ground for Relief, McGlothin claims he was denied the due process of law guaranteed by the Fourteenth Amendment when the trial court refused to grant him a new trial. McGlothin's claim relating to denial of a new trial was raised as his fourth assignment of error on direct appeal and the First District decided it as follows:

Motion for New Trial

[*P35] McGlothin's fourth assignment of error is that the trial court erred when it overruled his motion for a new trial. Prior to the sentencing hearing, McGlothin filed a motion for a new trial or a judgment of acquittal. Attached to the motion was Short's affidavit in which Short stated that he had acted alone, that McGlothin had not encouraged him to rob Chastain, and that Short had been told to lie by Patterson. After a hearing, the trial court denied the motion.

[*P36] Under Crim.R. 33(A)(6), the trial court may grant a new trial "[w]hen new evidence material to the defense is discovered, which the defendant could not with reasonable diligence have discovered and produced at trial." We review the trial court's denial of a motion for a new trial based on newly discovered evidence under an abuse-of-discretion standard. State v. Schiebel (1990), 55 Ohio St. 3d 71, 564 N.E. 2d 54, paragraph one of the syllabus.

[*P37] "To warrant the granting of a motion for a new trial in a criminal case, based on the ground of newly discovered evidence, it must be shown that the new evidence (1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence."State v. Petro (1947), 148 Ohio St. 505, 76 N.E. 2d 370, syllabus.

[*P38] Courts have split on whether the newly available testimony of a codefendant who has previously invoked his Fifth Amendment privilege against self-incrimination qualifies as "newly discovered evidence" for purposes of determining whether a new trial should be granted. Although never faced squarely with the issue in terms of a motion for a new trial, this court has considered whether an affidavit of a codefendant offered after a trial in which a codefendant had invoked his Fifth Amendment privilege against self-incrimination was sufficient for the defendant to obtain leave to file a delayed motion for a new trial under Crim.R. 33(B). Under that provision, if a defendant does not file a motion for a new trial within 120 days of the jury's verdict, he must seek leave to file a motion for a new trial. To obtain leave, the defendant must demonstrate clearly and convincingly that he was unavoidably prevented from discovering the evidence within the 120-day period. Crim. R. 33(B). In State v. Mathis, (1999), 134 Ohio App. 3d 77, 730 N.E. 2d 410, we concluded that where an affiant had refused to testify during the defendant's trial, the defendant had not demonstrated clearly and convincingly that he had been unavoidably prevented from discovering the evidence offered in the affidavit within the allotted time.

[*P39] Less than five years later, we faced a similar issue in State v. Condon, 157 Ohio App. 3d 26, 2004 Ohio 2031, 808 N.E. 2d 912. In that case, Condon sought leave to file a motion for a new trial a year and a half after his convictions for eight counts of gross abuse of a corpse. Included with his motion was an affidavit fromhis codefendant, who had invoked his Fifth Amendment rights during Condon's criminal trial. The affidavit, which had been filed in a civil case, exculpated Condon from the abuse of one of the corpses. This court concluded that the trial court had abused its discretion when it denied Condon's motion for leave to a file a delayed motion based on the affidavit and overruled Mathis to the extent that it held otherwise. Condon, supra, at

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