Ogle v. Mohr

Decision Date06 July 2016
Docket NumberCASE NO. 2:15-CV-00776
PartiesMELANIE A. OGLE, Petitioner, v. GARY C. MOHR, DIRECTOR, Ohio Department of Rehabilitation and Correction, Respondent.
CourtU.S. District Court — Southern District of Ohio

CHIEF JUDGE EDMUND A. SARGUS, JR.

MAGISTRATE JUDGE MICHAEL R. MERZ

OPINION AND ORDER

Petitioner, a state prisoner, has filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on Petitioner's Motion for an Evidentiary Hearing and Motion to Expand Record. (ECF Nos. 49, 50.) On March 17, 2016, the Magistrate Judge issued a Decision and Order denying Petitioner's motions. (ECF No. 53.) Petitioner filed an Objection. (ECF No. 54.) Pursuant to a Recommittal Order (ECF No. 56), on April 14, 2016, the Magistrate Judge issued a Supplemental Opinion on Motions for Evidentiary Hearing and to Expand the Record, recommending that Petitioner's Objection (ECF No. 54) be overruled. (ECF No. 57.) Petitioner again filed an Objection. (ECF No. 60.) Pursuant to a Recommittal Order, (ECF No. 62), on May 15, 2016, the Magistrate Judge issued a Second Supplemental Opinion on Evidentiary Hearing and Expansion of the Record, again recommending that Petitioner's Objection (ECF No. 60) be overruled. (ECF No. 63.)

Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner's objections (ECF Nos. 54, 60) are OVERRULED.

The Magistrate Judge's Decision and Order (ECF No. 53), Supplemental Opinion on Motions for Evidentiary Hearing and to Expand the Record (ECF No. 57), and Second Supplemental Opinion on Evidentiary Hearing and Expansion of the Record (ECF No. 63) are ADOPTED and AFFIRMED. Petitioner's Motions for an Evidentiary Hearing (ECF No. 49) and to Expand the Record (ECF No. 50) are DENIED.

This case involves Petitioner's conviction after a jury trial in the Hocking County Court of Common Pleas for assault on a police officer. The trial court imposed a sentence of six months incarceration, a fine and restitution. The Ohio Court of Appeals affirmed the judgment of the trial court.1 State v. Ogle, Nos. 11CA29, 11CA32, 12CA12, 12CA11, 12CA2, 12CA19, 2013 WL 3988782 (Ohio App. 4th Dist. July 26, 2013). Petitioner did not timely appeal, and the Ohio Supreme Court denied her motion for a delayed appeal. State v. Ogle, 138 Ohio St.3d 1431 (Ohio 2014). The trial court also denied Petitioner's motion for a new trial. The Ohio Court of Appeals affirmed that decision. State v. Ogle, No. 13CA9, 2013 WL 4735049 (Ohio App. 4th Dist. Aug. 21, 2013). Petitioner did not file a timely appeal, and the Ohio Supreme Court denied her motion for a delayed appeal. State v. Ogle, 138 Ohio St.3d 1431 (Ohio 2014). Petitioner filed a delayed application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). The appellate court denied the application as untimely. (ECF No. 13, PageID# 676.) Petitioner did not file an appeal to the Ohio Supreme Court.

On March 4, 2015, Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 24, 2016, she filed an Amended Petition. (ECF No. 21.) Petitioner asserts that she was denied counsel at sentencing (claim one); denied a fair trial due toperjured testimony by Deputy Woodgeard (claim two); that the state courts unconstitutionally denied her motion for a new trial (claim three); the evidence was constitutionally insufficient to sustain her conviction (claim four); she was denied the effective assistance of appellate counsel (claim five); denied a fair trial based on improper, erroneous and ambiguous jury instructions (claim six); and denied a fair trial due to juror misconduct (claim seven). See Traverse (ECF No. 40.) It is the position of the Respondent that Petitioner's claims are procedurally defaulted or otherwise fail to provide a basis for relief.

Petitioner requests an evidentiary hearing in support of her claims of insufficiency of the evidence and the denial of the effective assistance of counsel. (ECF No. 49.) Petitioner proposes to submit testimony from various witnesses at such a hearing in support of her claim that she was wrongfully convicted on false or perjured testimony. Petitioner maintains that she is actually innocent, such that this Court may address the merits of any procedurally defaulted claims. She seeks to expand the record in support of this allegation. Without again detailing each of the items with which Petitioner seeks to expand the record, such material includes various documents provided in discovery in the state criminal trial,2 transcripts and other documents related to or obtained in civil litigation, public records requests, and other miscellaneous items, such as the opinion of a proposed expert regarding the case, and recordings made of Charles Ogle. (ECF No. 50, PageID# 3452-54.) According to Petitioner, the foregoing material constitutes new evidence establishing that prosecution witnesses lied and she is innocent.

More specifically, Petitioner argues that such documents show that prosecution witnesses Jason Stacy and Deputy Woodgeard made inconsistent and contradictory statements in relationto their trial testimony, thus establishing their lack of credibility and untruthfulness. She contends that the Court must review photographs submitted at trial to determine whether the evidence is constitutionally sufficient to sustain her conviction. She indicates that she has obtained documents indicating that Woodgeard did not have surgery on his genitals, where he claimed he had been kicked, refuting his trial testimony.3 According to Petitioner, expansion of the record to include a stipulation in federal court that Charles Ogle had the right to drive away from Officer Woodgeard establishes her innocence. Petitioner submits that transcripts from a civil trespassing case show that officials engaged in a concerted effort to cover up improper actions by former deputy sergeant Kevin Groves, the investigating officer, "proving that Groves filed a false report and charges against her. . . that leads to much more than speculation of a collusion of the cover-up that includes Groves and the continued cover-up of others of the fabricated crimes against Petitioner[.]" (ECF No. 50, PageID# 3470.) Petitioner maintains that the expert opinion of Professor Gregory Gilbertson, bolsters her defense and argument that Woodgeard lied and she committed no crime. Petitioner contends that Groves' digital recording of Charles Ogle, which was available at the time of trial, constitutes new evidence of innocence. Petitioner also submits that other documents support her claim that Groves influenced Woodgeard and was willing to lie and act in a malicious and illegal manner. Petitioner further claims such material shows that the Sheriff and AEP violated Ohio law and thereby establishes a basis for her claim of collusion between officials and malicious prosecution. Petitioner arguesthat Woodgeard's prior criminal record and evidence of charges filed against Groves bolster her claim of collusion and perjury.

The Magistrate Judge denied Petitioner's request for an evidentiary hearing and to expand the record, concluding that an evidentiary hearing is not required to resolve Petitioner's claims, and that the documents with which she seeks to expand the record do not meet the threshold for establishing a claim of actual innocence under Schlup v. Delo, 513 U.S. 298, 316 (1995). The Magistrate Judge further noted that Cullen v. Pinholster 563 U.S. 170 (2011), prohibits this Court's consideration of evidence not presented to the state courts in adjudicating Petitioner's claims.

Petitioner objects to the Magistrate Judge's Decision and Order. Petitioner argues that the prosecutor presented false testimony and withheld material exculpatory evidence, in violation of Brady v. Maryland, 373 U.S. 83 (1973), and she therefore should be permitted to expand the record with new evidence in support of her claim of actual innocence. She argues that the material with which she seeks to expand the record satisfies Schlup. She objects to the Magistrate Judge's conclusion to the contrary. Petitioner maintains that she has preserved her underlying claims of ineffective assistance of appellate counsel as independent claims for review. Petitioner objects to the denial of her each of her requests to expand the record with additional items. Petitioner argues that this Court may consider evidence relating to the credibility of prosecution witnesses in assessing a claim of actual innocence. She objects to the denial of her motion for an evidentiary hearing on claims that were not adjudicated in the state courts as barred by under Pinholster. She argues that Pinholster does not prohibit expansion of the record to include new evidence in support of a claim of actual innocence where she has acted diligently. Petitioner argues that the denial of her motion for an evidentiary hearing should bewithout prejudice subject to renewal after the Court makes a determination regarding application of 28 U.S.C. § 2254(d) (1), (2). Petitioner objects to the Magistrate Judge's characterization of certain portions of her motion to expand the record. She acknowledges that Woodgeard has not recanted his trial testimony, but contends that the documents with which she seeks to expand the record will establish that he has modified every aspect of what he swore happened during trial. Petitioner argues at length that she should be permitted to expand the record with all of the documents requested in order to establish her actual innocence. She renews and restates each of her arguments in support of her motion for an evidentiary hearing and to expand the record, and all of her objections. Petitioner argues at length that the evidence against her constituted fabrication and perjury. She maintains that she has rebutted the presumption of correctness accorded to the factual findings of...

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