McGuire v. Warden, Chillicothe Corr. Inst.
| Decision Date | 24 October 2012 |
| Docket Number | Case No. 3:12-cv-310 |
| Parties | DENNIS B. McGUIRE, Petitioner, v. WARDEN, Chillicothe Correctional Institution, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
This capital habeas corpus case is before the Court on Petitioner's Motion for Relief from Judgment under Fed. R. Civ. P. 60(b)(Doc. No. 124). The Warden opposes the Motion (Doc. No. 125) and McGuire has filed a Reply in Support (Doc. No. 126).
This Court denied McGuire's Petition for Writ of Habeas Corpus July 2, 2007 (Doc. No. 116). The Sixth Circuit affirmed, McGuire v. Mitchell, 619 F.3d 623 (6th Cir. 2010), and the Supreme Court denied certiorari, McGuire v. Ohio, __ U.S. __, 131 S. Ct. 2103, 179 L. Ed. 2d 901 (2011). On April 21, 2011, the Sixth Circuit issued its Mandate, returning jurisdiction to this Court (Doc. No. 122). The instant Motion was filed September 5, 2012.
McGuire's Motion is made under Fed. R. Civ. P. 60(b)(6)1 and seeks to reopen the judgment so that the Court can reconsider its holding on the second ground for relief, subclaim c.i, which reads as follows: (Quoted in Report and Recommendations, Doc. No. 91, PageID 245). Because this is a post-judgment motion, it is deemed referred to the Magistrate Judge under 28 U.S.C. § 636(b)(3), requiring a report and recommendations.
McGuire raised a claim of ineffective assistance of trial counsel as his seventh proposition of law on direct appeal to the Ohio Supreme Court.2 The Ohio Supreme Court found the claim "waived" without saying how it was waived.3 State v. McGuire, 80 Ohio St. 3d 390, 394 (1997). The Report and Recommendations concluded the second ground for relief was procedurally defaulted on this basis and should therefore be denied (R&R, Doc. No. 91, PagelD 252-255). Petitioner made no objections to this conclusion (Objections, Doc. No. 94) and it was accordingly adopted by Judge Dlott (Doc. No. 103). Obviously it was not an issue on appeal to the Sixth Circuit.
McGuire also claimed in the Ohio Supreme Court that he had received ineffective assistance of appellate counsel in the Ohio court of appeals because, inter alia, appellate counsel failed to assert ineffective assistance of trial counsel for failure to present the evidence he now believes should be considered. The Ohio Supreme Court decided this claim as follows:
McGuire also claims that appellate counsel were ineffective for not raising a number of alleged penalty-phase errors made by trial counsel. First, he claims "inadequate preparation and presentation of mitigation evidence," because counsel should have hired a "mitigation specialist" to gather mitigating evidence. However, he cites no authority that this is a requirement of effective assistance, and we hold that it is not. He further complains that trial counsel should have called more than just the two members of McGuire's family to testify in the penalty phase. But the record does not show that this resulted from inadequate investigation or incompetent decisionmaking. In addition, McGuire claims that Dr. Kuehnl, the defense psychologist who testified on his behalf, was inadequately prepared and should have performed routine tests to determine whether McGuire was suffering a mental disorder. McGuire appears to blame defense counsel for this, but the record provides no basis to do so. Kuehnl may have decided that such tests were unnecessary. If so, it seems reasonable that counsel would defer to the psychologist's professional judgment. Given the difficulty of proving ineffective assistance of trial counsel and the weakness of appellant's claims, McGuire's appellate counsel were not deficient in failing to raise the issue of ineffective trial counsel.
80 Ohio Sup Ct. 3d at 399. Thus while the Ohio Supreme Court did not directly rule on the merits of the ineffective assistance of trial counsel claims because they were waived, it reached the merits of those claims on the way to deciding that it was not ineffective assistance of appellate counsel to fail to complain of trial counsels' performance in these particulars.
In addition to taking a direct appeal, McGuire filed a petition for post-conviction relief under Ohio Revised Code § 2953.21. The trial court denied the petition without a hearing. In his petition McGuire had asserted ineffective assistance of trial counsel for (1) failure to call Darlene McGuire and Jerry Baker as alibi witnesses, (2) failure to adequately cross-examine the DNA witnesses, and (3) failure to file a motion to suppress results of his blood test when the blood was allegedly illegally drawn. State v. McGuire, 1998 Ohio App. LEXIS 1672 *5-10 (Ohio App. 12th Dist. Apr. 20, 1998). The court of appeals agreed that all three of these claims were barred by the Ohio criminal res judicata doctrine. Id. at *8, *9, *10, *18.
McGuire filed a second petition for post-conviction relief which included the ineffective assistance of trial counsel claims now sought to be litigated here. The trial court dismissed the claims on the basis of res judicata and the court of appeals affirmed on the same basis. State v. McGuire, 2001 Ohio App. LEXIS 1826 (Ohio App. 12th Dist. Apr. 23, 2001). The court recited the applicable Ohio res judicata doctrine as follows:
Under the doctrine of res judicata, a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at trial or on an appeal from that judgment. State v. Perry (1967), 10 Ohio St. 2d 175, 180, 226 N.E.2d 104. Res judicata applies to postconviction proceedings, barring consideration of constitutional issues that have already been fully litigated before a prisoner's conviction or on direct appeal from that judgment. Id. at 179. Res judicata also applies to consecutive postconviction petitions, precluding a court from considering in a second petition the same issue that has been raised in the first petition. State v. Castro (1979), 67 Ohio App. 2d 20, 425 N.E.2d 907, syllabus; State v. Blankenship, 1997 Ohio App. LEXIS 4985 (Nov. 10, 1997), Butler App. Nos. CA97-03-062, CA97-03-063, unreported, at 8.
McGuire, 2001 Ohio App. LEXIS at *26-27.
The record demonstrates that McGuire raised on direct appeal to the Ohio Supreme Court the same claims he now makes. At page 92 of his Brief, he argues counsel were ineffective for inadequate preparation and presentation of mitigation evidence (Ex. 75 to Return of Writ, Doc. No. 17). McGuire complained that Id. at page 93. McGuire also complained about the paucity of testimony from Dr. Kuehnl. Id. Having made the argument in the Brief, counsel apparently waived it at oral argument, because the Ohio Supreme Court had found it was waived as a directclaim of ineffective assistance of trial counsel, although it reached the merits when the same arguments were presented as underlying the ineffective assistance of appellate counsel claims.
McGuire moves to reopen the judgment in this case not because of any error this Court made in adjudicating his Petition, but because of the change in the law wrought by Martinez v. Ryan, 566 U.S. __, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012).
In Coleman v. Thompson, 501 U.S. 722 (1991), the Supreme Court had held that an attorney's ignorance or inadvertence in a postconviction proceeding did not qualify as cause to excuse a procedural default. Coleman remained the law for twenty years and the District Court in Martinez and the Ninth Circuit on appeal in that case applied Coleman to bar consideration of an ineffective assistance of trial counsel claim which had been procedurally defaulted by failure to raise the claim by the first attorney who could have raised it. The Supreme Court reversed, holding:
To protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel, it is necessary to modify the unqualified statement in Coleman that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default. This opinion qualifies Coleman by recognizing a narrow exception: Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.
Martinez, __ U.S. __, 132 S. Ct. at 1315. The Court noted that Arizona Id. at 1313. Asthe Court noted, citing Massaro v. United States, 538 U.S. 500 (2003), Arizona parallels the federal system in this regard: federal court claims of ineffective assistance of trial counsel cannot be raised on direct appeal even if they depend on the record; they must be raised by motion to vacate under 28 U. S.C. § 2255. Because a collateral petition was the only proceeding in which an ineffective assistance of trial counsel claim could be raised in Arizona, the Supreme Court thought it should be made more like the situation where a claim of ineffective assistance of trial counsel can be raised on direct appeal, where a...
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