Zuern v. Tate
| Decision Date | 09 June 2000 |
| Docket Number | No. C-1-92-771.,C-1-92-771. |
| Citation | 101 F.Supp.2d 948 |
| Parties | William G. ZUERN, Petitioner, v. Arthur TATE, Warden, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
Lawrence Joseph Greger, Sharon Lynn Ovington, Greger And Ovington, Dayton, OH, William Sheldon Lazarow, Assist. State Public Defender, Columbus, OH, for plaintiff.
Charles L. Wille, Assist. Atty. General, columbus, OH, for defendants.
DECISION AND ENTRY SUSTAINING RESPONDENT'S OBJECTIONS (DOCS. # 321 AND # 332) TO INITIAL AND SUPPLEMENTAL REPORTS AND RECOMMENDATIONS OF MAGISTRATE JUDGE (DOCS. # 320 AND # 329); DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART PETITIONER'S OBJECTIONS (DOCS. # 326 AND # 331) TO INITIAL AND SUPPLEMENTAL REPORTS AND RECOMMENDATIONS OF MAGISTRATE JUDGE (DOCS. # 320 AND # 329); INITIAL AND SUPPLEMENTAL REPORTS AND RECOMMENDATIONS (DOCS. # 320 AND # 329) ADOPTED IN PART AND REJECTED IN PART; WRIT OF HABEAS CORPUS CONDITIONALLY GRANTED; CERTIFICATE OF PROBABLE CAUSE ISSUED; LEAVE TO APPEAL IN FORMA PAUPERIS GRANTED; JUDGMENT TO BE ENTERED IN FAVOR OF PETITIONER AND AGAINST RESPONDENT ON THIRD CLAIM, IN PART, AND IN FAVOR OF RESPONDENT AND AGAINST PETITIONER ON ALL OTHER CLAIMS; TERMINATION ENTRY
The Petitioner William G. Zuern ("Petitioner" or "Zuern") was convicted of committing the offense of aggravated murder and sentenced to death by the Ohio courts. He has initiated this action, challenging the constitutionality of his conviction and the sentence imposed upon him, and seeking a writ of habeas corpus.
During portions of May and June, 1984, Petitioner was incarcerated in the Community Correctional Institute ("CCI"), located in Hamilton County, Ohio, awaiting trial on a charge of murder. On the evening of June 9, 1984, Joseph Burton ("Burton") and Phillip Pence ("Pence"), two deputy sheriffs employed at the CCI, were ordered to search Zuern's cell for weapons. After the door to that cell had been opened, the Petitioner lunged at Pence, stabbing him in the chest with a metal knife or shank that Zuern had fashioned out of a metal hook for a bucket. Pence died from the wounds inflicted by the Petitioner. Thereafter, Zuern was indicted for aggravated murder, in violation of Ohio Revised Code § 2903.01(A) (). The Indictment also charged the Petitioner with three death penalty specifications or aggravating circumstances under Ohio Revised Code § 2929.04(A). The case was assigned to Judge William Morrissey of the Hamilton County Court of Common Pleas. In accordance with the law in Ohio, the Petitioner's trial was bifurcated into guilt and penalty phases, with the same jury sitting on both. At the conclusion of the guilt phase, the jury found Zuern guilty of the offense charged and of the three death penalty specifications or aggravating circumstances. Before the separate punishment phase of the trial could commence, Zuern informed Judge Morrissey that he did not want to present mitigating evidence. As a result, no evidence was presented during that phase of the trial. After having received the court's instructions, the jury recommended that the death penalty be imposed. Judge Morrissey accepted that recommendation and sentenced Zuern to death.
Petitioner then appealed his conviction and the sentence imposed upon him to the Hamilton County Court of Appeals, setting forth five assignments of error, to wit:
1. The trial court had erred by overruling Petitioner's motion to dismiss for reason that the Ohio statutory scheme for the imposition of the death penalty is unconstitutional;
2. The trial court had abused its discretion by overruling Petitioner's motion for a view of the scene 3. The trial court had erred when it failed to grant Petitioner's motion for a mistrial, when a prosecution witness informed the jury that he (Zuern) had been charged with murder at the time of the offense for which he was being tried;
4. The trial court erred by not, sua sponte, dismissing Beulah Taylor from the jury, after she disclosed to the court that she had heard a news account which stated that the Petitioner was in jail on another charge of murder, at the time he had allegedly committed the offense for which he was being tried; and
5. The verdict was against the weight of the evidence.
See Doc. # 88 at Ex. D. The Hamilton County Court of Appeals rejected Zuern's assignments of error and affirmed his conviction and, after conducting its own independent review on the issue of whether the evidence established beyond a reasonable doubt that the aggravating circumstances of which the Petitioner had been found guilty outweighed the mitigating factors, also affirmed the imposition of the death penalty upon him. State v. Zuern, 1986 WL 6507 (Ohio App.1986). Zuern then appealed to the Ohio Supreme Court, setting forth five propositions of law which tracked his assignments of error in the Hamilton County Court of Appeals. Over the dissent of Justices Craig Wright and Herbert Brown, the Ohio Supreme Court affirmed both Zuern's conviction and his sentence. State v. Zuern, 32 Ohio St.3d 56, 512 N.E.2d 585 (1987), cert. denied, 484 U.S. 1047, 108 S.Ct. 786, 98 L.Ed.2d 872 (1988). Like the Hamilton County Court of Appeals, the Ohio Supreme Court conducted its own independent review on the question of whether the evidence established beyond a reasonable doubt that the aggravating circumstances of which the Petitioner had been found guilty outweighed the mitigating factors.
Having exhausted his direct appeals, Zuern initiated an action in the Hamilton County Court of Common Pleas, requesting post-conviction relief pursuant to Ohio Revised Code § 2953.21, and setting forth 14 claims. In particular, the Petitioner alleged that his conviction and sentence were void or voidable for the following reasons, to wit:
1. The prosecutor had suppressed evidence favorable to the Petitioner;
2. The state had used false evidence to obtain a conviction against him;
3. There was insufficient evidence to convict him of aggravated murder;
4. The prosecutor had impermissibly commented upon his right to remain silent;
5. The state had improperly introduced evidence of the sympathetic character of the victim and his family;
6. The jury was permitted to view him in shackles during his trial;
7. The prosecutor systematically used the state's peremptory challenges to exclude prospective jurors who had reservations about the death penalty;
8. The prosecutor's voir dire was impermissible;
9. In imposing the death penalty, the trial court impermissibly considered a presentence report;
10. That presentence report contained inflammatory and prejudicial information;
11. The trial court impermissibly permitted the Petitioner to waive his right to present mitigating evidence, without having first conducted a hearing to ascertain whether he was competent to do so;
12. The appellate courts were prevented from complying with their statutory duty of determining whether the evidence established beyond a reasonable doubt that the aggravating circumstances of which the Petitioner had been found guilty out-weighed the mitigating factors, since he was permitted to waive his right to present mitigating evidence.
13. He was denied effective assistance of counsel by trial counsel; and 14. He was denied effective assistance of counsel by appellate counsel.
See Doc. # 90 at Ex. O. The Court of Common Pleas dismissed Petitioner's request for post-conviction relief, without affording him an evidentiary hearing. Petitioner then appealed to the Hamilton County Court of Appeals, which affirmed the decision of the trial court to dismiss the request for post-conviction relief.1 State v. Zuern, 1991 WL 256497 (Ohio App.1991). The Ohio Supreme Court subsequently denied Petitioner's application for further review of this request for such relief. State v. Zuern, 64 Ohio St.3d 1423, 594 N.E.2d 624 (1992). While Zuern's application for further review was pending before the Ohio Supreme Court, he filed an application for delayed reconsideration in the Hamilton County Court of Appeals. After that court had denied Petitioner's application, he appealed to the Ohio Supreme Court, setting forth propositions of law relating to ineffective assistance of counsel by the attorneys who had represented him during his direct appeal. The Ohio Supreme Court declined to hear Petitioner's appeal. See State v. Zuern, 65 Ohio St.3d 1463, 602 N.E.2d 1172 (1992).
Zuern then initiated this action, requesting a writ of habeas corpus, alleging that his conviction and sentence violated a number of provisions of the United States Constitution. In particular, the Petitioner asserted 25 separate grounds or claims for relief. This Court referred the matter to Magistrate Judge Michael Merz for a Report and Recommendations on May 12, 1994. On December 8, 1998, after having resolved numerous discovery disputes and having conducted an evidentiary hearing, Judge Merz issued his Initial Report and Recommendations. See Doc. # 320. In particular, that judicial officer recommended that the Court deny the Petitioner's request for a writ of habeas corpus, with respect to 24 of the asserted grounds, and that the Court conditionally grant the request with respect to one of the claims.2 Both the Respondent (Doc. # 321) and the Petitioner (Doc. # 326) filed Objections to that judicial filing. On April 19, 1999, Judge Merz filed a Supplemental Report and Recommendations, in which that judicial officer recommended that this Court overrule both the Respondent's and the Petitioner's Objections. See Doc. # 329. Once again, both the Petitioner and the Respondent filed Objections to that filing by Judge Merz. See Docs. # 331 and # 332. On September 30, 1999, this Court, after noting that the Respondent had not...
To continue reading
Request your trial
-
Wilson v. Warden
...(6th Cir. 2001); Johnson v. Collins, 1998 WL 228029 (6th Cir. 1998); Trevino v. Johnson, 168 F.3d 173 (5th Cir.1999); Zuern v. Tate, 101 F. Supp. 2d 948 (S.D. Ohio 2000), aff'd., 336 F.3d 478 (6th Cir. 2003). Ground Thirty-One fails to state a claim on which habeas corpus relief can be gran......
-
Sheppard v. Bagley
...in turn. Specifically, the Magistrate Judge that noted that the district court had rejected the first allegation in Zuern v. Tate, 101 F.Supp.2d 948, 1002 (S.D.Ohio 2000), and had rejected any argument that Ohio's scheme creates a mandatory death penalty. As for the alleged under-funding of......
-
Moore v. Mitchell
...in the trial phase of the bifurcated proceeding. That argument has been rejected by a different judge in this District Court in Zuern v. Tate, 101 F.Supp.2d 948; 1003-04 (S.D.Ohio 2000), rev'd in part on other grounds 336 F.3d 478 (6th Cir.2003), on the authority of Tuilaepa v. California, ......
-
Cowans v. Bagley, No. C-1-00-618.
...Schotten, 146 F.3d 314, 332 (6th Cir.), cert. denied, 525 U.S. 935, 119 S.Ct. 348, 142 L.Ed.2d 287 (1998); see also Zuern v. Tate, 101 F.Supp.2d 948, 959-960 (S.D.Ohio 2000); Jamison v. Collins, 100 F.Supp.2d 647, 768 (S.D.Ohio 2000). The doctrine of res judicata is stated in unmistakable t......