Woogerd v. Wainright

• Decision Date: 17 September 2018
• Docket Number: Case No. 2:18-cv-104
• Parties: TIMOTHY WOOGERD, Petitioner, v. LYNEAL WAINRIGHT, Warden, Marion Correctional Institution Respondent.
• Court: U.S. District Court — Southern District of Ohio

TIMOTHY WOOGERD, Petitioner, v. LYNEAL WAINRIGHT, Warden, Marion Correctional Institution Respondent.

Case No. 2:18-cv-104

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

September 17, 2018

District Judge Michael H. Watson

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case was brought pro se by Petitioner Timothy Woogerd to obtain relief from his conviction in the Franklin County Court of Common Pleas on one count of aggravated arson and eight counts of murder. Woogerd was sentenced to imprisonment for fifty-five years to life and is serving that sentence in Respondent's custody. He pleads the following Grounds for Relief:

GROUND ONE: Petitioner was denied due process of law where the evidence relied upon showed his probable innocence during the course of theory of prosecution which revealed; subsequent "new" evidence.

Supporting Facts: Fire Investigator (DeFrancisco) and dog, canine Abbey investigated the fire at petitioner's home (974 Westridge Street) after alleged arson, that resulted in three deaths. The fire investigator nor the State, called in the assistance of an electrical expert, nor did they collect or preserve any of the ignition sources potentials, that test could be done on to rule out, (other) causes such as the electrical wiring system(s).

GROUND TWO: Petitioner was denied due process of law where evidence relied upon showed his actual innocence during the course of theory of prosecution which revealed: subsequent new evidence.

Supporting Facts: Fire Investigator DeFranciso formulated his opinion ignitable liquid was poured in the "area of origin" within 6½ hours prior to leaving the fire scene (Vol IV Pg 63). Defrancisco collected no photo albums or photos establishing the room's contents and their location. Nor did he interview any family members of the fire scene residence to get this information and factually rule on what did cause this fire to burn a hole in the floor inside the rear door.

GROUND THREE: Petitioner was denied due process of law where the evidence relied upon showed his actual innocence during the course of theory of prosecution which revealed: subsequent new evidence.

Supporting Facts: Fire Investigator DeFransciso looked for possible electrical sources of ignition in the area of origin and found no indication of electrical fire. DeFrancisco testified there was only one lamp plugged into an outlet in the area of origin but the lamp was at the far side of the couch. The outlet showed the mail end of the plug still in the outlet and although DeFrancisco has no special training, he can look at an outlet to see if anything warrant further investigation (Vol 111 Pg 175-177)

GROUND FOUR: Petitioner was denied due process of law where the evidence relied upon showed his actual innocence during the course of theory of prosecution which revealed; subsequent new evidence.

Supporting Facts: Fire Investigator DeFrancisco testified one of the things a fire investigator is supposed to do is thoroughly document his observations and things that would contribute to his findings. Generally he would document with photographic evidence and preparing a report based upon notes and observations he had. DeFrancisco reviewed his report in preparation for his testimony and thinks the report is a good text that he prepared to document what he saw, what he found and that his conclusions was (Vol IV Pg. 14-16)

[No Ground Five is pleaded]

GROUND SIX: Petitioner was denied due process of law where the evidence relied upon showed his actual innocence during the courseof theory of prosecution which revealed: prosecution knowing concealing and suppressing evidence favorable to the defense and knowing use of false evidence to conspire with state agents to convict the defendant.

Supporting Facts: Lead Homicide Detective Farbacher testified he "believe petition said yes" he and Robin did have an argument the night of the fire. (Vol VI Pg 78) Homicide Detective Weeks testified that in his interview with James Adair, Adair indicated he overheard an argument between his mom and petitioner. He never told Weeks he heard petitioner say "I'm going to kill you" or "I'm going to burn the house down" Vol VII Pg. 12) James Adair testified he heard it himself the petitioner say "I will kill you" at 6:30 - 7:00 p.m. right as he was leaving the house. Petitioner alleges his actual innocence is shown under circumstances revealing the following:

GROUND SEVEN: Petitioner was denied due process of law where evidence relied upon showed his actual innocence during the course of theory of prosecution which revealed: prosecution and their agents knowing and deliberately suppressed, concealed, spoiled and destroyed material evidence favorable to the accused.

Supporting Facts: Lead Homicide Detective Farbacher, Homicide Detective Weeks and Fire Investigator DeFrancisco were present at petitioner's 3 and one half hour interrogation. DeFrancisco observed via video. Farbacher's main goal was to find out where petitioner was, what he did, from A-to-Z. Petitioner left residence at 12:30-45 a.m. It was after a Browns Monday Night Football Game-Post Game. He stopped at a United Dairy Farmers store on the corner of Hall and Norton Roads and purchased a pack of Malboro Reds. From UDF he stopped at the parking lot of Sherwin-Williams and spent the rest of the night there. At the end of the interrogation petitioner was arrested for CPO violations and driving without a license and expired tags. He was released 45 days later with time served. He was arrested 3 days later for aggravated arson and aggravated murder. Before the interrogation concluded Farbacker asked the petitioner if he would be willing to take a polygraph test and petitioner replied "yes". Petitioner alleges his actual innocence is shown, under circumstances revealing the following:

GROUND EIGHT: Petitioner was denied due process of law where the evidence relied upon showing his actual innocence during the course of theory of prosecution which revealed: subsequent new evidence and knowing use of false evidence and obstructing justice.

Supporting Facts: Canine Handler Beavers and his dog Abby worked throughout the interior main floor and basement as well as the East and North Exteriors of the fire scene residence. Abby gave two primary alerts indicating the presence of ignitable liquid in 1 plastic gas can in a window well on the exterior north side and in a metal gas can allegedly found by the back porch of the east side of the exterior. Petitioner's car was worked throughout the interior driver's seating area as well as the trunk area. Abby gave 1 primary alert indicating the presence of ignitable liquid on the rear bumper, driver's side. Clothes and items were removed and Abby indicated the presence of ignitable liquid on a pair of pants buried in a trash bag in the trunk. Petitioner alleges his actual innocence is shown under circumstances revealed in the following:

GROUND NINE: Petitioner was denied due process of law where the evidence relied upon showed his actual innocence. During the course of theory of prosecution which revealed subsequent new evidence.

Supporting Facts: No place in a police information summary number five of Mar Clark's interview with Detective Farbacher at 4:40 a.m. The day of the fire did she indicate Robin directly talked to Clark, she never told Farbacher that Robin told Clark she was in fear, or that there were threats (Vol VI Pg 144) postal worker, Stephanie Berry never indicated Robin reacted scared from the alleged incident. No place in the recorded transcript of supervisor Sharon Keen interview with DeFrancisco did she indicate an altercation of petitioner yelling at Robin and throwing mail and things at her. And that Robin reacted scared. Petitioner alleged his actual innocence is shown under circumstances revealed the following:

(Petition, ECF No. 1, PageID 2-19).

Procedural History

Woogerd was indicted by a Franklin County grand jury on the one count of aggravated arson and eight counts of aggravated murder on March 14, 2004. A jury convicted him on the arson count and eight counts of murder and he was sentenced to the term he is now serving.Represented by new counsel, he timely appealed to the Tenth District Court of Appeals which affirmed the convictions on March 30, 2007. State v. Woogerd, 10^th Dist. Franklin No. 05AP-45, 2007-Ohio-1518 (Mar. 30, 2007), Petitioner did not at that time appeal to the Supreme Court of Ohio, but filed a notice of appeal and motion for delayed direct appeal on December 30, 2016, which that court denied on February 22, 2017. State v. Woogerd, 148 Ohio St. 3d 1409, 2017-Ohio-573 (2017). He filed his Petition for Writ of Habeas Corpus in this Court on November 13, 2017 (ECF No. 1). Upon the Court's Order, Respondent has filed the State Court Record (ECF No. 15) and a Return of Writ (ECF No. 16). Petitioner's Reply (ECF No. 10) renders the case ripe for decision.

Analysis

The Parties' Positions

Respondent asserts the Petition is barred both by the one-year statute of limitations and Petitioner's procedural defaults in presenting these claims to the Ohio courts. If the Court treats the Petition as raising a sufficiency of the evidence claim and reaches the merits, Respondent argues the Court should defer to the Tenth District Court of Appeals' decision on that question.

Petitioner begins his Reply by asserting that Respondent's counsel "failed to answer Petitioner's factual grounds." (ECF No. 20, PageID 2289). Having cited the standard for evaluating a manifest weight of the evidence claim, Petitioner then discusses for twenty pages the evidence at trial on various issues. Id. at PageID 2291-2312. He then discusses the standard for an evidentiary hearing in a habeas case that was laid out in Townsend v. Sain, 372 U.S. 293, 313(1963). Id. at PageID 2313-2323. Next is Petitioner's discussion of the cause and prejudice and actual innocence/miscarriage of...