Woods v. Tibbals, Case No. 1:16-cv-643

• Decision Date: 14 July 2017
• Docket Number: Case No. 1:16-cv-643
• Parties: RICARDO WOODS, Petitioner, v. TERRY A. TIBBALS, Warden, Allen Oakwood Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

RICARDO WOODS, Petitioner, v. TERRY A. TIBBALS, Warden,Allen Oakwood Correctional Institution, Respondent.

Case No. 1:16-cv-643

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

July 14, 2017

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought by Petitioner Ricardo Woods pursuant to 28 U.S.C. § 2254 with the assistance of counsel, is before the Court for decision on the merits. Woods filed his Petition June 14, 2016 (ECF No. 1). On Magistrate Judge Litkovitz's Order (ECF No. 4), the Warden filed both the State Court Record ("Record," ECF No. 10) and a Return of Writ (ECF No. 11). Woods then filed his Reply (ECF No. 17). To help balance the workload among Western Division Magistrate Judges, Judge Litkovitz transferred the case to the undersigned (ECF No. 18).

Procedural History

Petitioner Ricardo Woods was indicted by a Hamilton County grand jury on January 24, 2011, on counts of purposeful murder, felony murder, and felonious assault, all with firearm specifications and with two counts of possessing a weapon n while under disability. The next month he was indicted for felonious assault with a firearm specification on two other victims arising out of the same incident. Woods was convicted by the trial judge on the weapons under disability counts and by a jury on all other counts except for purposeful murder. He was sentenced to consecutive terms of imprisonment of fifteen years to life for murder, eight years each on the felonious assault counts, twenty-four months for having weapons under a disability, and three years on the firearm specifications.

Woods appealed and the First District Court of Appeals affirmed. State v. Woods, 2014-Ohio-3892 (1^st Dist. Sept. 10, 2014), appellate jurisdiction declined, 142 Ohio St. 3d 1422 (2015), cert. den. sub nom. Woods v. Ohio, 136 S. Ct. 420 (2015). Following denial of certiorari, Petitioner filed the instant habeas corpus petition, raising the following grounds for relief:

Ground One: The admission of the victim's alleged identification by blinking violated Woods' Confrontation Clause rights, as the statement did not satisfy the constitutional test for the dying declaration exception.

Supporting Facts: The trial court erred in admitting testimony regarding the identification of Woods by the victim, who was paralyzed and unable to move other than by blinking at letters of the alphabet and a single photograph shown to him by police. Weeds was unable to cross-examine the victim regarding this identification in violation of his right to confront the witnesses against him. The identification was testimonial in nature because it was created by police, recorded on video, and intended to be introduced at trial. Woods therefore had a right to cross-examine the victim before the identification was introduced. Moreover, the statement was not a dying declaration because the victim's death was not actually imminent at the time it was made.

Ground Two: the victim's identification was made under suggestive circumstances and therefore presented a substantial likelihood of misidentification in violation of due process.

Supporting Facts: The victim's identification occurred under circumstances likely to give rise to a misidentification, including factors related to both the initial observation (lack of lighting, short duration, stress, etc.) and related to the time of the identification, which occurred in a hospital while the victim was under the influence of medications and was unable to communicate.

Ground Three: The trial court violated Woods' right to a jury trial by requiring Woods to demonstrate a pattern of race-based jury strikes before shifting the burden to the State to offer a race-neutral explanation.

Supporting Facts: During jury selection, the prosecution struck a number of African-American jurors. Woods is African-American and his alleged victim was white. The trial court incorrectly applied Batson by requiring Woods to demonstrate a pattern of race-based jury strikes before shifting the burden to the state to explain its use of peremptory challenges with a race-neutral explanation.

Ground Four: The trial court erred in certifying several witnesses for nondisclosure from Woods' counsel in violation of Woods' due process rights.

Supporting Facts: Ohio law only permits the nondisclosure of witnesses when there exists specific, articulable reasons to protect the witnesses' safety. The State failed to present a compelling case that the witnesses would have been in danger if their identities had been disclosed to Woods' counsel, particularly given that one of the witnesses was dead at the time the trial court certified his identity for nondisclosure. This violated Woods' due process rights.

Ground Five: The trial court erred in limiting the testimony of Wood's expert witnesses in violation of Woods' due process rights.

Supporting Facts: The trial court limited the testimony of Woods' eyewitness identification expert regarding statistics and national data on eyewitness misidentification, as well as regarding stranger and non-stranger misidentification.

Ground Six: The trial court improperly permitted the testimony of an unreliable jailhouse informant in violation of Woods' Sixth Amendment and due process rights.

Supporting Facts: The trial court permitted a witness to testify regarding statements Woods allegedly made to him during a very brief stay together at the local jail. Jail records revealed that the statement could not have been made at the time it was alleged, and testimony of the police who took the jailhouse informant's statement indicated that his disclosure was premised solely on his desire to broker a deal in his own criminal cases. Under these circumstances, the testimony was unreliable and should not have been admitted into evidence.

Ground Seven: The trial court violated Woods' due process rights by excluding medical and psychological records that would have documented the victim's state of mind.

Supporting Facts: The trial court precluded Woods from admitting evidence in the form of medical and psychological records that would have demonstrated his state of mind at the time of the crime and at the time he made his alleged identification.

Ground Eight: Woods received ineffective assistance of trial counsel in violation of his Sixth Amendment rights.

Supporting Facts: Woods' attorneys failed to raise various meritorious arguments, including a suppression claim under Weatherford v. Bursey, in violation of his right to counsel. In addition, Woods' counsel failed to properly present exculpatory evidence and further failed to properly instruct Woods' expert on the facts of the crime.

Ground Nine: The trial court erred in instructing the jury.

Supporting Facts: The trial court issued an instruction permitting an inference of guilt based on Woods' alleged flight absent sufficient evidence of Woods' motive. In addition, the trial court failed to instruct the jury on the Ohio identification statute in violation of his jury trial rights.

Ground Ten: Prosecutorial misconduct deprived Woods of this right to a fair trial.

Supporting Facts: During trial, the prosecution committed numerous instances of prejudicial misconduct, including lying to the trial court regarding the safety of a witness who was already deceased and by commenting upon Woods' compliance with an evidentiary ruling as evidence of guilt.

Ground Eleven: Woods' convictions were not supported by sufficient evidence and were against the weight of the evidence in violation of his due process rights.

Supporting Facts: The only evidence connecting Woods to the crimes was the unreliable and untested identification by the victim, who allegedly blinked at a single photograph while he was in the hospital, on medications, and paralyzed. Woods' conviction is therefore not supported by sufficient evidence.

(Petition, ECF No. 1 and 1-1).

Analysis

Ground One: Confrontation Clause Violation

In his First Ground for Relief, Woods claims the trial court violated his rights under the Confrontation Clause when it admitted into evidence an identification of him as the offender produced by having the murder victim, Chandler, blink his eyes in response to certain stimuli. Chandler had died by the time of trial and was not available for cross-examination.

This claim was presented on direct appeal as part of the first assignment of error and decided as follows:

[*P17] In his first assignment of error, Woods contends that the trial court erred in admitting into evidence Chandler's identification of Woods as the perpetrator. We first address Woods's argument that the admission of the identification violated his rights under the Confrontation Clause of the United States Constitution and that the identification constituted inadmissible hearsay.

[*P18] The Confrontation Clause of the Sixth Amendment generally prohibits the admission of testimonial statements of awitness who did not testify at trial, unless the witness was unavailable for trial and the defendant had had the prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

[*P19] But in Crawford, the court held that a dying declaration was one exception to this rule of inadmissibility. Id. at 56, fn. 6. As this court has recently held, dying declarations may be admitted as an exception to the rule set forth in Crawford, irrespective of whether the declaration is considered testimonial. State v. Kennedy, 2013-Ohio-4221, 998 N.E.2d 1189, ¶ 64 (1st Dist.).

[*P20] In Kennedy, we held that Evid.R. 804(B)(2) comports with the common-law definition of a dying declaration when analyzing the exception to the rule in Crawford. Id. at ¶ 67. Evid.R. 804(B)(2) provides that the following is not excluded by the hearsay rule if the declarant is unavailable as a witness:

[i]n a prosecution for homicide or in a civil action or proceeding, a

...