EDMUND SARGUS JR., District Judge
Petitioner, a prisoner sentenced to death by the State of Ohio, filed a habeas corpus action pursuant to 28 U.S.C. § 2254. On March 31, 2010, this Court issued an Opinion and Order denying Petitioner's claims and dismissing his action. (Doc. 91.) This order will address which of Petitioner's claims should be certified for appeal.
An appeal from the denial of a habeas corpus action may not proceed unless a circuit justice or judge issues a certificate of appeal ability. 28 U.S.C. § 2253(c)(1). To warrant a certificate of appeal ability, a petitioner must make a substantial showing that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1983); Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063, 1073 (6th Cir. 1997). He need not demonstrate that he will prevail on the merits; he needs only to demonstrate that the issues he seeks to appeal are deserving of further proceedings or are reasonably debatable among jurists of reason. Barefoot, 463 U.S. at 893 n. 4. The Supreme Court has explained that, "[where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack McDonnell, 529 U.S. 473, 484 (2000).
This analysis should also be applied when the Court has denied a claim on procedural grounds. Id. at 483; see also Porter field v. Bell, 258 F.3d 484, 486 (6th Cir. 2001). When the Court dismisses a claim on procedural grounds, a certificate of appeal ability is warranted when the petitioner demonstrates (1) that jurists of reason would find it debatable whether the petition states a valid claim and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484.
First Ground for Relief : The trial court erroneously deprived Petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when it prohibited the introduction to the jury of defense evidence regarding the reliability and credibility of Loza's confession.
In the First Ground for Relief, Petitioner alleged that the trial court violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights by preventing him from introducing expert testimony regarding the credibility and reliability of his confession. (Petition, Doc. # 6, at ¶¶ 1-9; Memorandum in Support, Doc. # 62, at 4-11; Reply, Doc. # 70, at 1-9.) Although the Court denied relief, the Court is of the view that the issue is deserving of further review on appeal. Petitioner's reliance on Crane v. Kentucky in support of a claim challenging the refusal of the trial court to allow testimony by a cultural expert to explain why Petitioner's confession was not voluntary, combined with the fact-intensive nature of the claim, presents a claim of significant legal and factual issues. Further, because Petitioner's confession was a crucial part of the State's case, Petitioner's attempt to undermine the validity of his confession was essential to his case in defense. Accordingly, reasonable jurists could find this Court's decision debatable or wrong, warranting this Court to CERTIFY for appeal Petitioner's first ground for relief.
Second Ground for Relief : The admission of a coerced and involuntary statement at his capital trial denied Petitioner of his rights as guaranteed by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
A. Loza's Statement [Was] The Result of Coercion
1. CoercI've Police Tactics
2. Improper Inducements
3. Trickery
4. The Personal Characteristics of the Suspect
5. Conclusion
B. The trial court erred by denying Petitioner's motion to suppress using an erroneous legal standard in deprivation of Petitioner's rights as guaranteed by the Fourth, Eighth and Fourteenth Amendments to the United States Constitution.
C. The trial court failed to explain the suppression denial.
Petitioner contended that his confession was coerced and involuntary in violation of his rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Petitioner asserted that he confessed only after police threatened his pregnant girlfriend. Petitioner also noted that he had not slept in twenty-four hours and was only eighteen years old. Petitioner further contended that the interrogating officers lied to and made certain promises to Petitioner in order to obtain his confession. (Petition, Doc. # 6, at ¶¶ 10-49; Doc. # 62, at 11-18; Doc. # 70, at 9-13.) The Court denied relief but for the same reasons that the Court certified Petitioner's first ground for relief and because the claims are related, the Court hereby CERTIFIES for appeal Petitioner's second ground for relief.
Third Ground for Relief : The State of Ohio ignored its international treaty obligations thereby depriving Petitioner of his rights as guaranteed by the Supremacy Clause, and the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution.
Petitioner's third ground for relief asserts that his rights under Article 36 of the Vienna Convention on Consular Relations were violated when local law enforcement officers not only failed to notify him without delay that, as a Mexican national, Petitioner had an absolute right to communicate with the Mexican consulate, but also failed to notify the Mexican consulate without delay that Petitioner had been arrested. (Petition, Doc. # 6, at ¶¶ 50-71.) The Court denied relief on Petitioner's claim but is more than satisfied, however, that reasonable jurists could find its decision debatable or wrong. The fact that many federal courts, including of course the United States Supreme Court, have been willing to assume — albeit not decide — that Article 36 creates judicially enforceable rights persuades this Court that Petitioner's claim is deserving of further consideration on appeal. Accordingly, the Court CERTIFIES for appeal Petitioner's third ground for relief.
Fourth Ground for Relief : Petitioner was deprived of the right to the effective assistance of counsel as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
A. Trial counsel are ineffective when they fail to investigate and present available cultural evidence.
B. Trial counsel are ineffective when they fail to investigate and present available mitigating evidence.
Petitioner argued in his fourth ground for relief that his trial attorneys performed unreasonably and to his prejudice when they failed to obtain the services of a cultural expert for both phases of Petitioner's trial. (Doc. # 6, at ¶¶ 72-78.) A cultural expert, Petitioner argued, could have assisted in demonstrating why Petitioner's Hispanic culture influenced him to protect his unborn child and the child's mother, why Petitioner's confession should have been suppressed as involuntary and coerced or in the alternative seen by the jury as unreliable, and how Petitioner's Mexican heritage, the immigrant experience, and the realities of gang involvement all shaped Petitioner's actions in this instance. Petitioner argued that counsel's failure was not a strategic decision informed by reasonable investigation and that Petitioner was prejudiced by counsel's deficient performance insofar as expert testimony undermining Petitioner's "confession" might have provided a basis for suppressing Petitioner's confession or in the alternative tipped the jury's decision in favor of acquittal or a sentence less than death. Petitioner similarly argued that trial counsel were ineffective for failing to present available mitigation evidence from Petitioner's family not only to provide a complete picture of Petitioner's life and background but also to complement the cultural evidence that, according to Petitioner, counsel also should have developed and provided.
The Court denied relief but is of the view that jurists of reason could find its decision debatable or wrong sufficient to warrant further consideration on appeal. Claims of mitigation-phase ineffectiveness are of particular importance in capital habeas corpus cases, as evidenced by the number of cases in which the Sixth Circuit has addressed such claims in detail. The above, combined with the fact-intensive nature of this claim, persuade this Court that Petitioner meets the requirements for a certificate of appeal ability. Accordingly, this Court CERTIFIES for appeal Petitioner's fourth ground for relief.
Fifth Ground for Relief : The suppression of exculpatory, impeachment evidence that leads to the grant of a defense request for a mistrial creates a bar to retrial under the double jeopardy clause as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.
Petitioner's fifth ground for relief concerned the mistrial and retrial that resulted when, prior to Petitioner's initial trial before a three-judge panel, the prosecution failed to disclose to Petitioner's trial counsel a forensic report from the Ohio Bureau of Criminal Identification and Investigation ("BCI") reflecting that blood analysts found not a single trace of blood on five bags of Petitioner's clothes that the police had submitted for blood trace analysis. (Petition, Doc. # 6, at ¶¶ 79-109.) The Court denied relief but is satisfied that this claim warrants a certificate of appeal ability. Given the fact-intensive nature of the claim, including facts that were developed during habeas corpus discovery, as well as the gravity of the alleged Constitutional violation, the Court is persuaded that reasonable jurists could find its decision debatable or wrong. Accordingly, the Court CERTIFIES for appeal Petitioner's fifth ground for relief.
Sixth Ground For Relief : There is insufficient evidence to sustain Petitioner's convictions and death sentences in violation of his rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.
The trial court erred in overruling Petitioner's motion for acquittal, Petitioner argued in his Sixth ground for relief, because the State failed to prove beyond a reasonable doubt that Petitioner committed any of the four aggravated murders. (Petition, Doc. # 6, at ¶¶ 110-135.) Although the Court denied relief, it recognizes that reasonable jurists could find its decision debatable or wrong sufficient to warrant a certificate of appeal ability. In view of the fact-intensive nature of this claim, the voluminous record, and the manner in which this claim touches on so many critical facets to Petitioner's defense at trial, this Court believes that this claim demands further consideration on appeal. Accordingly, the Court CERTIFIES for appeal Petitioner's sixth ground for relief.
Seventh Ground for Relief : The trial court erred in failing to instruct the jury on the offenses of contributing to the delinquency of a minor when that crime was the underlying specification to four aggravated murder counts
thereby depriving Petitioner of his rights to a trial by jury and to have his guilt determined beyond a reasonable doubt as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
In its June 11, 2002 Opinion and Order, the Court denied Petitioner's seventh ground for relief as procedurally defaulted. (Doc. # 56, at 38-49.) Having reviewed that decision, this Court cannot certify its procedural default ruling for appeal. Petitioner defaulted the claimed jury instruction error by failing to object at trial. It is virtually beyond dispute that the procedural rule at issue was firmly established and consistently enforced, and that Petitioner's arguments to the contrary are foreclosed by Sixth Circuit precedent. That being so, reasonable jurists could not find this Court's procedural default ruling debatable or wrong.
Eighth Ground for Relief : The trial court's purpose instruction created conclusive presumption of guilt and relieved the State of its burden to prove guilt beyond a reasonable doubt thereby depriving Petitioner of his rights as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
Petitioner argued that the trial court's instruction on purpose and intent, combined with certain components of the prosecution's closing argument, had the effect of creating a conclusive presumption that relieved the State of its burden to prove the essential element of purpose. (Petition, Doc. # 6, at ¶¶ 142-148.) The Court denied relief. Although this claim presents a closer call than those preceding it, because this Court is confident that the challenged instruction did not create a conclusive presumption that relieved the State of its burden to prove an essential element beyond a reasonable doubt, the claim presents a close enough call to militate in favor of a certificate of appeal ability. Reasonable jurists could find this Court's decision debatable sufficient to warrant further consideration on appeal. Out of an abundance of caution, the Court accordingly CERTIFIES for appeal Petitioner's eighth ground for relief.
Ninth Ground for Relief : The trial court's supplemental jury instructions improperly impinged on the jury's deliberations thereby depriving petitioner of his rights as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
In his ninth ground for relief, Petitioner took issue with supplemental instructions that the trial court gave in response to a question by the deliberating jurors. (Petition, Doc. # 6, at ¶¶ 149-154.) Following approximately three days of deliberations, the jury posed the following written question to the trial court: "To whom it may concern: We the jury would like to have clarified how to decide a verdict on a specification to a count when a unanimous decision cannot be reached? The jury instructions have not made this clear to us. Foreman, Douglas E. Robertson." ( Id. at ¶ 150.) Petitioner argued that the following supplemental charge went beyond being responsive and in effect coerced a verdict from the jury:
THE COURT: Again, a word of caution, ladies and gentlemen. After you've commenced your deliberations, it's important that the Court chooses its words carefully and that you refrain from any remarks that may affect the rights of either party to this action or which may disclose your opinion as a member of the jury. We realize that this is a new and a difficult assignment for you and the process of discussion and deliberation in the jury room is necessarily slow and requires consideration and patience. The secrecy which surrounds your efforts presents — prevents others, including the Court, from knowing when your efforts will result in a verdict. Now, I received the following note from the foreman, which says, "We the jury would like to have clarified how to decide a verdict on a specification to a count when a unanimous decision cannot be reached. The jury instructions have not made this clear to us.
The Court recognizes, ladies and gentlemen, the amount of time that you have spent and you've diligently applied yourself to attempting to resolve the numerous matters that are brought to your attention by way of verdicts in this case, the verdict forms. And that you have — you started your deliberations on Tuesday afternoon and here it is late Thursday morning and you have deliberated some over sixteen and a half hours, according to my calculations; and obviously there are still problems here with arriving at a conclusion.
Now, with respect to this specific inquiry, if the jury is unable to agree on a — to a verdict on a particular specification, as that is my understanding of this note, and you have exhausted all reasonable efforts to resolve your differences and you are convinced that further deliberations on that specification would not serve a useful purpose, the foreman shall note on the form, the verdict form, that particular specification, that the jury is unable to agree on a verdict on that specification, and sign the form as foreman. You will then process to the next verdict form as instructed on the bottom of the form, which you've just signed.
Now, I have some comments here that may be of some assistance. The principal mode provided by our constitution and laws for deciding questions of fact in criminal cases is by jury verdict. In a large proportion of cases, absolute certainty cannot be attained or expected. Although the verdict must reflect the verdict of each individual juror and not mere acquiescence in the conclusions of your fellows, each question submitted to you should be examined with proper regard and deference to the opinions of others. You should consider it desirable that this case be decided. You're selected in the same manner and from the same source as any future jury would be. There's no reason to believe that the case will ever be submitted to a jury more capable, impartial or intelligent than this one. Likewise, there's no reason to believe that more or clearer evidence will be produced by either side. It is your duty to decide the case if you can conscientiously do so. You should listen to one another's arguments with a disposition to be persuaded. Do not hesitate to reexamine your views and change your position if you are convinced that it is erroneous. If there is disagreement, all jurors should reexamine their positions given that a unanimous verdict has not been reached. Jurors who favor a particular verdict should consider whether their doubt is reasonable. Considering that it is not shared by others, whether their doubt or conviction is reasonable, considering it's not shared by others equally honest, you've heard the same evidence with the same desire to arrive at the truth and under the same oath. Likewise, jurors for a different verdict should not-should ask themselves whether they might not reasonably doubt the correctness of a judgment not concurred in by all other jurors. Now, bearing in mind these admonitions and these matters that we bring forth, I'm going to ask you now to return and — or resume your deliberations.
(Doc. # 6, at ¶ 151 (quoting Supplemental Transcript, Supplemental Instruction, pp. 2-4.).) Petitioner noted that the jury returned its guilty verdicts later that day.
The Court denied relief but is persuaded, however, that reasonable jurists could find its decision debatable or wrong. Accordingly, the Court CERTIFIES for appeal Petitioner's ninth ground for relief.
Tenth Ground for Relief : The trial court erred in instructing the jury on punishment at the culpability phase thereby depriving Petitioner of his rights as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
(Petition, Doc. # 6, at ¶¶ 155-160.) In his Memorandum in Support, Petitioner expressly withdrew this claim. (Doc. # 62, at 61.) Because the Court accordingly denied Petitioner's tenth ground for relief, the Court does not certify it for appeal.
Eleventh Ground for Relief : The reasonable doubt instruction permitted the jurors in Petitioner's case to return a verdict of guilty on a degree of proof below beyond a reasonable doubt thereby depriving Petitioner of his rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Petitioner challenged as unconstitutional the standard "reasonable doubt" instruction set forth in O.R.C. § 2901.05 and given by the trial court during both the culpability and penalty phases of Petitioner's trial. (Petition, Doc. # 6, at ¶¶ 161-166.) The Court denied Petitioner's claim as without merit, and further, cannot certify the claim for appeal. Petitioner did not raise any challenges to Ohio's statutory "reasonable doubt" instruction that the Sixth Circuit has not squarely rejected on multiple occasions. In view of that fact, it simply cannot be said that reasonable jurists could find this Court's decision rejecting Petitioner's claim wrong or even debatable. For that reason, the Court declines to certify for appeal Petitioner's eleventh ground for relief.
Twelfth Ground for Relief : The warrantless arrest of Petitioner by the Middletown police in Warren County deprived him of his rights as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution.
A. The police lacked probable cause to arrest Jose Loza.
B. Detective Knabel lacked a reasonable suspicion to seize Loza.
C. Detective Knabel's intrusive actions exceeded the boundaries of Terry .
D. The fruits of the illegal seizure must be suppressed.
Petitioner argued that the warrantless arrest of him by Middletown Police Detective Roger Knabel deprived Petitioner of his rights guaranteed by the Fourth and Fourteenth Amendments. (Petition, Doc. # 6, at ¶¶ 167-200; Memorandum in Support, Doc. # 62, at 67-74.) The Court denied Petitioner's claim as precluded by Stone v. Powell, 428 U.S. 465, 481-82 (1976). Further, the Court cannot certify this claim for appeal. Because Fourth Amendment challenges are all but precluded by Stone v. Powell and Sixth Circuit decisions interpreting Stone, this Court cannot find that Petitioner's twelfth claim deserves further consideration on appeal. Although the Court recognizes the magnitude of constitutional rights implicated, as well as the fact-intensive nature of the claim and the fortuitous nature of the stop, the fact remains that because of Stone v. Powell, reasonable jurists could not find this Court's decision denying Petitioner's claim debatable or wrong. Accordingly, the Court declines to certify Petitioner's twelfth ground for relief for appeal.
Thirteenth Ground for Relief : The police failed to inform Petitioner of his Miranda rights during a custodial interrogation in violation of his rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.
Petitioner argued that Detective Knabel violated Petitioner's Fifth and Fourteenth Amendment rights by questioning Petitioner in the back of Knabel's cruiser without first advising Petitioner of his Miranda rights. (Petition, Doc. # 6, at ¶¶ 201-206.) The Court denied Petitioner's claim and now declines to certify the claim for appeal. In contrast to Petitioner's twelfth ground for relief above, the facts in support of Petitioner's thirteenth ground all but foreclose any possibility that reasonable jurists could find this Court's decision debatable or wrong. The questions asked and information elicited by Detective Knabel during the stop of Petitioner were entirely permissible under controlling Supreme Court and Sixth Circuit authority. Even indulging Petitioner every benefit of the doubt, this Court cannot under the controlling standards certify ground thirteen for appeal.
Fourteenth Ground for Relief : Petitioner was deprived of his rights as guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution when the police obtained a consent to search after eliciting a coercive confession.
Petitioner stated that following detectives' interrogation of him that led to a coerced confession, detectives sought and obtained from Petitioner consent to search Petitioner's belongings. Among the items that officers recovered from sealed U-Haul boxes that were seized from Petitioner and Dorothy Jackson at the bus station was a gun. Petitioner argues that his consent to search his belongings was not voluntary under the totality of the circumstances. (Petition, Doc. # 6, at ¶¶ 207-211.) The Court denied relief. Further, for the same reasons that the Court could not certify Petitioner's twelfth ground for relief, the Court cannot certify the fourteenth ground for relief. Fourth Amendment challenges are all but precluded by Stone v. Powell and Sixth Circuit decisions interpreting Stone. Although the Court recognizes the magnitude of constitutional rights implicated, as well as the fact-intensive nature of the claim and the fortuitous nature of the stop, the fact remains that because of Stone v. Powell, reasonable jurists could not find this Court's decision denying Petitioner's claim debatable or wrong.
Accordingly, the Court cannot certify ground fourteen for appeal.
Fifteenth Ground for Relief : Allowing a juror to sit in a death case who believes that the responsibility for imposing the death sentence rests solely with the trial court deprives Petitioner's rights as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.
Petitioner alleged that a constitutional violation occurred when juror Nevaline Halcomb was permitted to remain on his jury, despite the fact that Halcomb had given several answers during voir dire suggesting that she believed that the decision of whether to impose the death penalty rested with the trial court. (Petition, Doc. # 6, at ¶¶ 212-216.) The Court denied relief but is satisfied that reasonable jurists could find its decision debatable or wrong. The Court bases this determination on the fact that Petitioner's claim is uniquely comprised of several layers of factual and legal issues that, combined, warrant further consideration on appeal. Accordingly, out of an abundance of caution, the Court CERTIFIES for appeal Petitioner's fifteenth ground for relief.
Sixteenth Ground for Relief : The trial court erred in failing to conduct a voir dire of a juror when it learned that a seated juror had a problem that may impact the juror's impartiality in deprivation of Petitioner's rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Petitioner argued that his right to a fair and impartial jury was violated when the trial court failed to conduct a voir dire of juror Martha Zecher after learning that her impartiality might be compromised. (Petition, Doc. # 6, at ¶¶ 217-220.) After the jury was seated, Juror Zecher sent a note to the trial court explaining that her husband was very upset about her selection as a juror and wanted her to be excused. According to the note, Juror Zecher's husband said that Mrs. Zecher may as well leave home for three weeks. Relying on Remmer v. United States, 347 U.S. 227, 229 (1954), Petitioner argued that failing to voir dire Juror Zecher about the note and allowing her to sit on his jury violated his right to a capital jury free from extraneous influences. Petitioner assailed not only the trial court, but also defense counsel, for the failure to conduct a voir dire of Juror Zecher. (Doc. # 62, at 98-99.)
The Court denied relief and also declines to certify this issue for appeal. Reasonable jurists would not find debatable or wrong, on this record, the Court's decision under controlling case law that no credible evidence exists that Juror Zecher's impartiality or that of Petitioner's jury panel was compromised. That being so, the Court would be violating the standards set forth in 28 U.S.C. § 2253(c)(2) if it were to certify this issue for appeal.
Seventeenth Ground for Relief : Invidious racial discrimination infects [the] death penalty in Ohio and in Petitioner's case, thereby depriving Petitioner of his rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
A. Racism in Butler County.
B. Death sentences disproportionate for Hispanics in Ohio.
C. Fair cross-section violation.
D. Equal Protection violation.
Petitioner argued that the taint of racism throughout several facets of the proceedings against him renders his death sentence unconstitutional. (Petition, Doc. # 6, at ¶¶ 221-229.) Although the undersigned denied relief, this Court is satisfied that a certificate of appeal ability is warranted under 28 U.S.C. § 2253(C)(2). Although this Court remains convinced that the record is replete with race-neutral reasons for why Petitioner was investigated and prosecuted for the shootings, reasonable jurists could find this Court's decision at least debatable. This issue warrants further consideration on appeal. Accordingly, the Court CERTIFIES for appeal Petitioner's seventeenth ground for relief.
Eighteenth Ground for Relief : The seizure of letters written by Petitioner while he was incarcerated without a legitimate penal interest deprived Petitioner of his rights as guaranteed by the First, Fourth, and Fourteenth Amendments.
In his eighteenth ground for relief, Petitioner challenged the seizure by law enforcement officers (and subsequent introduction at trial) of three letters that Petitioner wrote while incarcerated at the Butler County jail awaiting trial. (Petition, Doc. # 6, at ¶¶ 230-236.) Petitioner explains that on January 17, 1991, he gave to Detectives Knabel and Jeffery three letters that he had written and asked Detective Knabel to mail because Petitioner did not have envelopes or stamps. Rather than mail the letters immediately, Petitioner explains, Detective Knabel contacted the prosecutor's office, which advised him to read and copy Petitioner's letters. Petitioner states that the letters inculpated him and were introduced against him at his trial. Petitioner argues that his Fourth Amendment rights were violated because the Supreme Court has held that prisoners enjoy a reasonable expectation of privacy, albeit of a diminished scope, and that jail officials may monitor inmate correspondence or conduct warrantless searches only if a justifiable purpose of imprisonment or prison security warrants those actions. Petitioner argues that there was no legitimate justification for the seizure of his letters, especially in light of the fact that the intrusion occurred when he was a pretrial detainee and "cloaked with the presumption of innocence." (Id. at ¶ 233.)
The Court denied relief but is of the view that reasonable jurists could find its decision debatable or wrong. Notwithstanding the fact that Stone v. Powell and Sixth Circuit decisions interpreting Stone as to Ohio appear to foreclose Petitioner's challenge, in view of the damaging nature of the letters that were seized as well as lingering questions concerning Detective Knabel's action in reading and copying the letters, this Court believes that the issue demands further consideration on appeal. Further, the Court recognizes that Stone v. Powell may not preclude review of the First Amendment component of Petitioner's claim the way that Stone precludes review of the Fourth Amendment component of Petitioner's claim. Accordingly, the Court CERTIFIES for appeal Petitioner's eighteenth ground for relief.
Nineteenth Ground for Relief : Prosecutorial misconduct during Petitioner's culpability trial phase deprived of Petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
In its June 11, 2002 Opinion and Order, the Court denied Petitioner's nineteenth ground for relief as procedurally defaulted. (Doc. # 56, at 49-57.) Having reviewed that decision, this Court cannot certify its procedural default ruling for appeal. Petitioner defaulted the claimed prosecutorial misconduct error by failing to object at trial. It is virtually beyond dispute that the procedural rule at issue was firmly established and consistently enforced, and that Petitioner's arguments to the contrary are foreclosed by Sixth Circuit precedent. That being so, reasonable jurists could not find this Court's procedural default ruling debatable or wrong.
Twentieth Ground for Relief : The trial court erred by allowing the admission of irrelevant and inflammatory materials that impacted on the culpability and penalty phases in deprivation of Petitioner's rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments.
In his twentieth ground for relief, Petitioner argued that his constitutional rights to a fair trial and sentencing hearing were violated by the admission of evidence of unproven criminal acts that he was alleged to have committed and that were unconnected and irrelevant to the aggravated murder charges for which Petitioner was tried. (Petition, Doc. # 6, at ¶¶ 246-257 [except paragraph 252, concerning Petitioner's alleged assault of a man in California, which was barred by procedural default].) "Among these adduced acts," Petitioner explained, "were Loza's supposed involvement in a drive-by shooting in California, his juvenile arrests, his activities in a gang in California, and his participation in the assault of a man in California." (Id. at ¶ 247.) Petitioner argued that the other act evidence was particularly prejudicial and that its introduction at trial was in violation of Ohio R. Evid. 404(B).
The Court denied relief but out of an abundance of caution, will certify this issue for appeal. The Court recognizes that Petitioner faces extraordinarily high standards of proof obtain habeas corpus relief on a state court evidentiary issue where a curative instruction was given. In view of the damaging nature of the evidence of uncharged criminal acts that was revealed, as well as the fact that the evidence was referenced on several occasions to the displeasure of the trial court, this Court believes that reasonable jurists could find its decision rejecting Petitioner's claim at least debatable. Accordingly, the Court CERTIFIES for appeal Petitioner's twentieth ground for relief.
Twenty-First Ground for Relief : The trial court erred by allowing the admission of irrelevant and inflammatory gruesome materials that impacted on the culpability and penalty phases in deprivation of Petitioner's rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
In his twenty-first ground for relief, Petitioner asserted that the admission of certain inflammatory materials-photographs of the victims and a videotape of the crime scene-tainted his convictions and sentences and required habeas corpus relief. (Petition, Doc. # 6, at ¶¶ 258-262.) In his memorandum in support, Petitioner expressly withdrew this claim. (Doc. # 62, at 121-22.) Accordingly, the Court denied Petitioner's twenty-first ground for relief and does not certify it for appeal.
Twenty-Second Ground for Relief : The trial court erred in replaying the entire videotape statement during the jury's deliberations without first inquiring of the jury why the statement needed to be replayed and instructing the jury not to overemphasize the statement thereby depriving Petitioner of his rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Petitioner argued in his twenty-second ground for relief that it was error for the trial court to allow the jury to replay Petitioner's videotaped confession during guilt phase deliberations without inquiring as to why the jury felt it was necessary. (Petition, Doc. # 6, at ¶¶ 263-280.) In his memorandum in support, Petitioner expressly withdrew this claim. (Doc. # 62, at 122.) Accordingly, the Court denied Petitioner's twenty-second ground for relief and does not certify it for appeal.
Twenty-Third Ground for Relief : Petitioner was denied his right to the effective assistance of counsel as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
1. Failure to object to the opinion testimony of questioned document examiner Stephen Greene.
2. Failure to object to all irrelevant and unproven other criminal acts admitted against Petitioner.
3. Failure to object to all gruesome photographs.
4. Failure to object to juror Nevaline Halcomb serving on Loza's jury.
5. Failure to object to letters written by Loza being admitted into evidence.
6. Failure to request a voir dire of juror Zecher.
7. Failure to object to definition of reasonable doubt used in the trial court's instructions.
8. Failure to object to the improper standard used by the trial court in overruling the motion to suppress.
9. Failure to object to the insufficient factual findings made by the trial court on the motion to suppress.
10. Failure to object to the trial court's reference to punishment at the guilt phase.
11. Failure to object to the trial court's failure to instruct on one of the offenses in Ohio Rev. Code Ann. Section 2929.04(A)(3) specification.
12. Failure to object to the issue of future dangerousness introduced at the penalty phase.
13. Failure to object to the admission of statements by Loza during custodial interrogation without Loza having first been warned pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
14. Failure to move for acquittal on the basis of insufficient scientific evidence, Dorothy Jackson's legally insufficient testimony, Loza's lack of detailed information about the crimes, and because Loza's affirmative defense to the child stealing death specification was met.
15. Failure to object to the prosecutorial misconduct at the penalty phase.
In his twenty-third ground for relief, Petitioner summarily raised fifteen instances of ineffective assistance of trial counsel for the failure to make certain objections. (Petition, Doc. # 6, at ¶¶ 281-285.) In his memorandum in support, Petitioner pared down the list of counsel's errors from the fifteen above to the nine below:
1. Failed to object to all irrelevant and unproven other criminal acts admitted against Petitioner, see Twentieth Ground for Relief.
2. Failed to object to jur|or] Nevaline Halcomb serving on Petitioner's jury; see Fifteenth Ground for Relief.
3. Failed to object to letters written by Petitioner, State's Exhibit 18-E, being admitted into evidence, see Eighteenth Ground for Relief.
4. Failed to request a voir dire of juror Zecher, see Sixteenth Ground for Relief.
5. Failed to object to definition of reasonable doubt used in the trial court's instructions, see Eleventh Ground for Relief.
6. Failed to object to the issue of future dangerousness introduced at the penalty phase see Twenty-Fifth Ground for Relief.
7. Failed to object to the admission of statements by Petitioner during custodial interrogation without Petitioner having first been warned pursuant to Miranda v. Arizona ,
384 U.S. 436 (1966), see Thirteenth Ground for Relief.
8. Failed to move for acquittal on the basis of insufficient scientific evidence, Dorothy Jackson's legally insufficient testimony, Petitioner's lack of detailed information about the crimes and because Petitioner's affirmative defense to the child stealing death specification was met.
9. Failed to object to prosecutorial misconduct at the penalty phase, see Twenty-Sixth Ground for Relief.
(Doc. # 62, at 122-23.)
The Court denied relief and likewise declines to certify this issue for appeal. In view of the fact that each sub-part is plainly without merit and/or was addressed more substantively in other parts of the decision addressing the merits of Petitioner's claims, the Court cannot find that this claim warrants further consideration on appeal.
Twenty-Fourth Ground for Relief : The presentation by the State of materially false evidence deprived Petitioner of his rights as guaranteed by
the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Petitioner argued in his twenty-fourth ground for relief that it was Dorothy Jackson who confessed to Petitioner that she had committed the murders and that Jackson testified falsely when she testified that Petitioner had confessed to the murders. (Petition, Doc. # 6, at ¶¶ 286-288.) Thus, Petitioner emphasized, he was convicted and sentenced to death on the basis of materially false testimony in violation of his rights to a fundamentally fair trial and reliable sentencing determination, to be free from cruel and unusual punishment, and to due process.
The Court denied relief but is satisfied that reasonable jurists could find its decision debatable and that this issue deserves further review on appeal. If the strongest piece of evidence that the prosecution had against Petitioner was his videotaped confession, then the testimony of Dorothy Jackson was a close second. That being so, although this Court is not persuaded that the record supports the conclusion that the prosecution knowingly used false evidence against Petitioner, the Court is of the view that reasonable jurists could find that determination debatable. Accordingly, the Court CERTIFIES for appeal Petitioner's twenty-fourth ground for relief.
Twenty-Fifth Ground for Relief : The jury considered the non-statutory aggravating circumstance of future dangerousness thereby depriving Petitioner of his rights as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Petitioner argued that his jury was exposed to prejudicial information at the penalty phase concerning his potential to commit future crimes. (Petition, Doc. # 6, at ¶¶ 289-294.) Petitioner asserted that there were several instances during the mitigation phase when the jury was exposed to allegations of Petitioner's future dangerousness. Petitioner pointed to the State's cross-examination of psychologist Dr. Roger Fisher, during which the prosecution asked whether Petitioner would "do it again given the same circumstances," and Dr. Fisher answered, "I am afraid he would." (Doc. # 6, at ¶ 290 (quoting P.T.p. 53).) Petitioner also pointed to the conclusion of the mitigation phase, when during the replaying, at the prosecution's request, of Petitioner's videotaped confession, detectives asked Petitioner, "You turn all of this around, would you do it again," and Petitioner eventually answered "it [would] still come out to the same thing." (Id. (quoting Con.T.p. 118).) Petitioner went on to note that the prosecution reminded the jury of the previous suggestions of Petitioner's future dangerousness in summarizing the testimony of Dr. Fisher, stating "He told you that the Defendant had no regrets over these deaths, that he would do it again." (Id. at ¶ 291 (quoting P.T.p. 123).)
Although the Court denied relief on this claim, out of an abundance of caution, the Court will certify Petitioner's claim for appeal given the record in this case and the potential jury impact of the testimony. Accordingly, the Court CERTIFIES for appeal Petitioner's twenty-fifth ground for relief.
Twenty-Sixth Ground for Relief : Prosecutorial misconduct in the penalty phase [deprived] Petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
In its June 11, 2002 Opinion and Order, the Court denied Petitioner's twenty-sixth ground for relief as procedurally defaulted. (Doc. # 56, at 61-67.) Having reviewed that decision, this Court cannot certify its procedural default ruling for appeal. Petitioner defaulted the claimed mitigation-phase prosecutorial misconduct by failing to object at trial. It is virtually beyond dispute that the procedural rule at issue was firmly established and consistently enforced, and that Petitioner's arguments to the contrary are foreclosed by Sixth Circuit precedent. That being so, reasonable jurists could not find this Court's procedural default ruling debatable or wrong.
Twenty-Seventh Ground for Relief : The trial court erroneously failed to give effect to presented mitigating evidence thereby Petitioner of his rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.
Petitioner took aim at the following portion of the trial court's separate sentencing opinion, discussing the mitigation evidence that Petitioner had presented:
[A] tragic childhood involving the abandonment of the family by defendant's father and being raised with his three siblings by his mother and grandmother, the surreptitious entry into this country to be supported by his mother's meager earnings as a domestic servant, the handicaps of language, ethnic rejection and poverty, the defendant was pictured as a loving brother, deeply attached to and supportive of his family.
(Petition, Doc. # 6, at ¶ 312 (quoting Tr.Ct.Op. at 5).) Petitioner complained specifically that at the conclusion of that list of mitigating factors, the trial court found the evidence to be "of little relevance to the appropriateness of the death penalty." (Id. at ¶ 313.) Petitioner reasoned that the trial court confused its duty under O.R.C. § 2929.03(D) to consider the testimony and evidence presented during mitigation with a reviewing court's duty under O.R.C. § 2929.05(A) to determine the appropriateness of the death sentence. In so doing, Petitioner argued, the trial court failed to properly consider and give effect to relevant mitigating evidence in violation of Petitioner's rights under the Eighth and Fourteenth Amendments. (Id. at ¶¶ 311-316.) Petitioner asserted that the trial court's error removed from its consideration relevant mitigation evidence, in essence precluding the individualized consideration to which Petitioner was entitled under the Eighth and Fourteenth Amendments.
The Court denied relief on this claim, and further, cannot certify this issue for appeal. Even indulging Petitioner every benefit of the doubt, this Court cannot find that reasonable jurists would find wrong or even debatable this Court's determination that the trial court did not refuse to consider Petitioner's O.R.C. § 2929.04(B)(7) "catch-all" mitigation evidence. The only plausible reading of the trial court's sentencing opinion concerning that evidence is that the trial court considered but gave little weight to it.
Twenty-Eighth Ground for Relief : The death sentences are inappropriate and thereby deprive Petitioner of his rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.
(Petition, Doc. # 6, at ¶¶ 317-336.) In his memorandum in support, Petitioner expressly withdrew this claim. (Doc. # 62, at 134.) Accordingly, the Court denied Petitioner's twenty-eighth ground for relief and does not certify it for appeal.
Thirtieth Ground for Relief : The proportionality review conducted in Ohio deprives Petitioner of his rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.
Section 2929.03(G) of the Ohio Revised Code creates a statutorily mandated duty upon state appellate courts to review each death sentence imposed to determine whether the sentence is excessive or disproportionate to death sentences imposed in similar cases. Petitioner argues that Ohio's proportionality review is meaningless and incapable of guarding against the arbitrary and capricious imposition of capital punishment, pointing to the information gathering system as flawed. (Petition, Doc. # 6, at ¶¶ 341-346.) Petitioner asserts that trial courts presiding over capital cases consistently file separate sentencing decisions only when they impose death, not when they impose life. "The result," Petitioner explains, "has been an information tracking system that contains only death verdicts." (Id. at ¶ 342.) Petitioner reasons that "[b]asing a proportionality decision on a data bank containing only death verdicts can result in one conclusion, that all death verdicts are proportional." (Id.)
The Court denied relief, noting that his claim was foreclosed by Sixth Circuit precedent. By the same token, the fact that the claim is definitively foreclosed by Sixth Circuit authority precludes this Court from certifying the issue for appeal.
Thirty-First Ground for Relief : Executing an individual via the electric chair offends contemporary standards of decency in violation of Petitioner's rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.
(Petition, Doc. # 6, at ¶¶ 347-350.) In his memorandum in support, Petitioner acknowledged that since the filing of his habeas corpus petition, Ohio had changed its method of execution eliminating use of the electric chair. Accordingly, Petitioner expressly withdrew this claim. (Doc. 62, at 142-43.) Accordingly, the Court denied Petitioner's thirty-first ground for relief and does not certify it for appeal.
Thirty-Second Ground for Relief : The Ohio Death Penalty statute on its face and as applied deprives Petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
(Petition, Doc. # 6, at ¶¶ 351-374.) In his memorandum in support, Petitioner noted that "[where appropriate, Petitioner's counsel have included arguments related to a facial or as applied challenge to Ohio's statute in Petitioner's other habeas grounds." (Doc. # 62, at 143.) Petitioner accordingly expressly withdrew this claim. This Court accordingly denied Petitioner's thirty-second ground for relief and declines to certify it for appeal.
Thirty-Third Ground for Relief : The State of Ohio does not provide an adequate corrective process for the consideration of post-conviction claims in violation of Petitioner's rights as guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.
In its June 11, 2002 Opinion and Order, the Court denied Petitioner's thirty-third ground for relief as procedurally defaulted. (Doc. # 56, at 67-71.) Having reviewed that decision, this Court cannot certify its procedural default ruling for appeal. Petitioner defaulted the claimed inadequacy of Ohio's postconviction process by failing to raise that issue before the trial court and instead raising it for the first time on appeal from the trial court's decision denying his postconviction action. Although that is not a common procedural default, it is virtually beyond debate that the procedural rule at issue was firmly established and consistently enforced. Further, this Court would have a difficult time concluding that jurists of reason would find it debatable whether the error alleged states a valid claim That being so, reasonable jurists could not find this Court's procedural default ruling debatable or wrong.
Thirty-Fourth Ground for Relief : The cumulative effect of errors visited upon Petitioner's proceedings have deprived Petitioner of his rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
The Court denied relief on Petitioner's claim as essentially foreclosed by Sixth Circuit precedent. For the same reason, the Court cannot certify this claim for appeal.
For the foregoing reasons, the Court CERTIFIES for appeal Petitioner's first, second, third, fourth, fifth, sixth, eighth, ninth, fourteenth, fifteenth, seventeenth, eighteenth, twentieth, twenty-fourth, and twenty-fifth grounds for relief, to the extent set forth in the Court's Opinion and Order addressing the merits of Petitioner's claims.
IT IS SO ORDERED.