REPORT AND RECOMMENDATIONS Petitioner William Vore brought this habeas corpus action pro se under 28 U.S.C. § 2254 to obtain relief from his conviction in the Warren County Common Pleas Court on charges of robbery and grand theft (Petition, Doc. No. 5, PageID1 181, ¶¶ 1 & 5). He was convicted by a jury and sentenced to five years imprisonment.
In the Petition, Vore pleads the following grounds for relief:
Ground One: The petitioner was denied his Constitutional right to due process, right to compulsory process, and rights to a fair trial in violation of the 5th, 6th, and 14t Amendments to the United States Constitution when the trial court denied an Identification Expert.
Supporting Facts: The petitioner requested funding for purposes of obtaining an identification expert to testify for his defense at trial and trial court denied request.
Ground Two: The petitioner was denied effective assistance of appellate counsel in violation of the 5th, 6th, and 14th Amendments to the United States Constitution.
Supporting Facts: The petitioner was denied effective assistance of appellate counsel when counsel failed to raise claims related to trial counsel's ineffective assistance, and properly raise claims of error on direct appeal.
Ground Three: The petitioner was denied effective assistance of trial counsel in violation of the 5th, 6th, and 14th Amendments to the United States Constitution.
Supporting Facts: The petitioner was denied effective assistance of trial counsel when counsel failed to investigate and subpoena several witnesses to testify for the defense, and failed to object, and elicited damaging, unduly prejudicial evidence of uncharged bad acts, and failed to request a cautionary, limiting jury instruction when this evidence was introduced.
(Petition, Doc. No. 5.)
On June 12, 2014, Magistrate Judge Bowman granted Vore's Motion to Supplement and Amend the Petition to add four new grounds for relief which are as follows:
Ground Four: J.2 The State denied Petitioner's fundamental constitutional rights to due process when the state prosecutor intentionally withheld Brady evidence from the defense and suborned perjury at trial violating the Petitioner's 5th and 14thAmendments to the United States Constitution and the state appellate court's ruling was contrary to well-settled United States Supreme Court precedent and was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings for purposes of 28 U.S.C. § 2254(d)(1); (d)(2).
Ground Five: K. The Petitioner was denied effective assistance of appellate counsel in violation of the 5th, 6th, and 14th Amendments to the United States Constitution when counsel failed to raise trial counsel's ineffectiveness when trial counsel failed to object and move for a mistrial when the prosecutor intentionally introduced testimony and evidence that was never disclosed to the defense prior to trial denying Petitioner's rights to a fair trial and rights to due process.
Ground Six: L. The Petitioner was denied effective assistance of trial counsel when counsel failed to introduce evidence that the U.S. currency found on Petitioner at the time of his arrest wasn't money taken from the bank robbery violating Petitioner's constitutional rights under the 5th, 6th, and 14th Amendments to the United States Constitution.
Ground Seven: M. The Petitioner was denied effective assistance of trial counsel when counsel failed to challenge and impeach the credibility of the state witnesses, Ryan Goodman and Alexey Bogatyrev denying Petitioner's 5th, 6th, and 14th Amendment to the United States Constitution.
(Motion, Doc. No. 8.)
On October 30, 2014, the Court granted Vore leave to add one additional ground for relief:
Ground Eight: The state trial court erred when it resentenced the Petitioner to five years in prison for violating R.C. 2911.02(A)(3), a third degree felony when Petitioner was resentenced after the effective date of H.B. 86, and at the time of the Petitioner's Resentencing hearing the maximum penalty was 36 months in prison.
(Motion, Doc. No. 22, PageID 1395.)
Vore was indicted by the Warren County Grand Jury in 2010 on one count of robbery in violation of Ohio Revised Code § 2911.02(A)(3) (Count 1), and one count of grand theft in violation of Ohio Revised Code § 2913.02(A)(1) (Count 2). (Return of Writ, Doc. No. 10-1, Ex. 10, PageID 452.) The case proceeded to trial by jury and Vore was found guilty as charged in the indictment. The trial court merged count 2 with count 1 for the purposes of sentencing, ordered Vore to serve 5 years in prison for count 1, and ordered restitution in the amount of $9,281.00 to Fifth Third Bank.
Vore appealed to the Court of Appeals of Ohio, Twelfth Appellate District, Warren County, raising the following assignments of error:
1. The trial court erred when it failed to instruct the jury on the lesser-included offense of theft thus denying Appellant of his fundamental right to a fair trial.
2. The trial court erred when allowed the State to introduce evidence of other acts that were not sufficiently related to Defendant-Appellant.
3. The trial court erred when it violated Defendant-Appellant's U.S. and Ohio Constitutional rights by failing to provide adequate funds for an eye witness identification expert.
4. The trial court erred and violated Defendant-Appellant's due process rights when it overruled the suppression motion as to identification.
(Return of Writ, Doc. No. 10-1, Ex. 30, PageID 576.)
The Court of Appeals of Ohio set forth the facts of this case on direct appeal as follows:
[¶2] William Bernard Vore was indicted for robbery and grand theft after police allege he entered a Fifth Third Bank branch inWarren County, handed a demand note to the teller, took the $9200 in bills she gave him, and left the bank. . . .
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[¶4] According to the record, within an hour or so of the crime, law enforcement officers took a photo or photos from the bank surveillance video of the robbery and visited businesses around the bank to see if anyone recognized the man in the photo.
[¶5] Motel 6 employee Freddy Woolwine recognized the man as someone he believed was staying at the motel before the robbery. Woolwine said he saw the man the previous night exiting a dark blue or black car, "like a Nissan or . . . I couldn't tell," with Iowa or Nebraska license tags. He also talked with the man briefly in the parking lot the morning of the robbery. The employee remembered the man was wearing a hat like the one the robber was wearing in the bank photo. When asked if he saw the man in the courtroom, Woolwine said, "No. He had a hat on so. . . ."
[¶6] Motel 6 desk clerk Alexey Bogatyrev told police he recognized the man in the bank photo as a customer who had checked out of the motel that morning. Bogatyrev said he saw the man a few times during the last few days and when the man checked out, he was wearing some of the same clothing as the man in the robbery photo.
[¶7] Bogatyrev gave police the registration information Vore provided when he checked into the motel, including his name and an Iowa address. Bogatyrev said he remembered the name of the patron because it is a word in his native language. Vore paid cash for his three or four-day stay at the motel. Both Motel 6 employees recall the man was seeking repairs for his vehicle.
[¶8] Police showed the bank teller a photo array of six photos a few days after the robbery. The array included a photo that was taken from Vore's Iowa driver's license and forwarded to Warren County. The teller was unable to pick out a suspect.
[¶9] Even though the bank teller was unable to identify Vore as the man who gave her the demand note, a bank manager testified that he believed Vore was the man who robbed the bank based on his review of the surveillance video of the robbery.
[¶10] A second bank employee testified she was working next to the teller's station on the morning of the robbery and sheremembered a man with a day planner walking up to the teller. She said the entire encounter with the teller probably lasted about a minute or so. She agreed that she told police she might not be able to identify the robber and wrote in her statement to police that she did not see anything. After describing for the jury what was depicted in the various photographs taken from the bank video, the bank employee testified she believed Vore was the individual she saw in the bank that day.
[¶11] Warren County authorities learned months after the robbery that Vore was in a Kentucky jail. He had reportedly been arrested less than two weeks after the robbery for unrelated charges that involved a police pursuit. A black pellet gun and $558 in cash were found on Vore or in the black Nissan car he was driving.
[¶12] Two experts testified they obtained handwriting samples from Vore and compared them to the "questioned writing," which was the demand note given to the teller. A forensic scientist with the Ohio Bureau of Criminal Investigation opined that Vore wrote the robbery demand note. A handwriting expert originally hired by Vore at state's expense also concluded that Vore wrote the demand note.
State v. Vore 2012-Ohio-2431, 2012 Ohio App. LEXIS 2140 (12th Dist. June 4, 2012).
The court of appeals affirmed. Id. The court, sua sponte, noticed errors in the imposition of post-release control and remanded "only for the limited purpose of permitting the trial court to employ the PRC correction procedures of R.C. 2929.191. In all other respects the judgment of the trial court is affirmed." Id. at ¶ 76. The Ohio Supreme Court declined jurisdiction to hear the case.. State v. Vore, 132 Ohio St. 3d 1534 (2012).
In the...
