Opinion
Case No. 2:07-cv-846
02-18-2014
Gerald Hand, Petitioner, v. Marc Houk, Warden, Respondent.
ORDER
The Magistrate Judge has issued a Report and Recommendation concerning Petitioner's motion for a certificate of appealability. (Doc. 144) Objections to the Report were due to be filed by January 21, 2014, and none have been filed to date. This Court has reviewed the Report and the Magistrate Judge's recommendations de novo, and agrees with all of them.
As fully discussed in the Court's order denying habeas relief (see Doc. 118), petitioner Gerald Hand was convicted by an Ohio state court jury of the aggravated murders of his wife, Jill Hand, and of his friend and former employee, Walter Lonnie Welch. The same jury recommended that Hand be sentenced to death. After unsuccessful attempts to challenge his conviction and his sentence in state courts, he filed a petition for a writ of habeas corpus in this court, raising fifteen claims for relief. This Court denied all of his claims.
Hand then filed a motion seeking a certificate of appealability on Grounds One, Two, Four, Five, Six, Eight, Nine and Eleven of his petition. (Doc. 142) Respondent opposed Hand's motion, and urged the Court to deny a COA on all claims. (Doc. 143) The Magistrate Judge recommended that a COA issue with respect to Ground Two (the fair presentation issue only); sub-claim 2 of Ground Four; sub-claims 2, 6 and 7 of Ground Five; Ground Six; Ground Eight; and sub-claim 2 of Ground Nine.
In order to obtain a certificate of appealability, Hand must demonstrate that reasonable jurists would debate whether his petition states a valid claim of the denial of his constitutional right. And if a petition is dismissed on a procedural ground, the petitioner must demonstrate that reasonable jurists would debate whether the basis for the Court's dismissal was correct. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
With respect to Ground One of Hand's petition, the Court agrees that no certificate of appealability should be granted. Hand's confrontation and due process rights were not violated by the admission of testimony from various individuals about Welch's incriminating statements. The cases Hand cites, both in his petition and his motion for a COA, are distinguishable on their facts and, as the Magistrate Judge aptly noted, are completely inapposite to the facts of Hand's case. Hand argues that the testimony about Welch's statements was extremely damaging to his defense. That is likely true, but that does not make the testimony inadmissible on any constitutional ground.
In Ground Two of his petition, Hand asserted that the admission of five discrete instances of character evidence deprived him of due process and a fair trial. This Court found that Hand did not fairly present this constitutional claim to the Ohio Supreme Court, but recognized that the issue is often a close one on which jurists may disagree. The Magistrate Judge recommended that a COA be granted on the fair presentation issue, but denied on the substantive due process and procedural default issues discussed in the Court's order. The Court agrees with this recommendation; Hand cites no cases finding that the admission of this sort of evidence amounts to a due process violation. And with respect to default, there is no dispute that Hand failed to object to the admission of four out of the five of the incidents he complains of here. Ohio's contemporaneous objection rule is an adequate and independent state ground upon which to deny habeas relief, as a legion of cases have found. The Court adopts the Magistrate Judge's conclusion regarding Ground Two.
Ground Four of the petition raised eleven sub-claims of ineffective assistance of trial counsel. Hand sought a certificate of appealability on each of them. The Magistrate Judge recommended that a COA issue only with respect to sub-claim 2, trial counsel's failure to further question two of his trial jurors who admitted they had seen some pre-trial publicity about Hand's crimes and his upcoming trial. The Court agrees that reasonable jurists could disagree with this Court's conclusion on this question, and that a COA should issue. With respect to the balance of his ineffective assistance claims, however, the Court agrees with the Magistrate Judge. Sub-claim 1 asserted his trial counsel's failure to object to testimony from his bankruptcy attorney. This Court found the claim procedurally defaulted, and that Hand's ineffective assistance of appellate counsel argument was itself defaulted and could not excuse the default. The Magistrate Judge's Report exhaustively analyzes the default issue and explains why Hand's argument about his counsel's alleged conflict of interest is meritless. Even if this sub-claim was not defaulted, Hand waived his attorney-client privilege by voluntarily testifying about his discussions with a bankruptcy attorney. Sub-claim 3 alleged trial counsel's failure to move for a change of venue, which the Court found was procedurally defaulted due to a failure to raise it on direct appeal. Hand's contention that the exhibits he filed with his post-conviction petition (a collection of newspaper articles) preserved this claim was rejected by this Court. Hand has not explained how reasonable jurists could debate this conclusion.
Sub-claim 4 of Ground Four concerned Hand's alleged report to his trial lawyer about other prisoners who were plotting to escape from the jail where he was being held pending trial. The Ohio court of appeals found this sub-claim was defaulted in its order rejecting his post-conviction petition. Hand has not shown any basis upon which reasonable jurists could debate this conclusion. Sub-claim five alleged a failure to exclude a trial juror whom Hand argued was biased against him. The Ohio Supreme Court rejected this sub-claim on the merits, and this Court found that decision was not contrary to nor an objectively unreasonable application of clearly established federal law. Hand's motion suggests that this juror had a "close family connection" to Jill Hand; the record belies any such conclusion, as the Magistrate Judge notes. During voir dire, this juror explained that her husband had known Jill Hand through his work, and that she had heard about Jill's death through that professional connection. This juror also gave many positive responses to questions posed to her, strongly supporting a conclusion that Hand's trial counsel made a considered judgment to leave her on the jury.
Sub-claim 6 contends that trial counsel failed to object to the admission of certain of Welch's statements as co-conspirator's statements. The Ohio Supreme Court rejected this argument, because the challenged statements were independently admissible as statements against Welch's penal interest, and because there was sufficient independent evidence of the existence of a conspiracy between Welch and Hand. Similarly, sub-claim 7 alleged a failure to object to certain other-acts evidence. The Ohio Supreme Court rejected this sub-claim because Hand was not prejudiced by the evidence; as a result, his attorney's failure to object to the evidence did not prejudice Hand's defense, a conclusion with which reasonable jurists would not disagree.
Sub-claim 8 argued that trial counsel failed to present evidence of self-defense during the in limine hearings, held by the trial court to determine whether certain of Welch's statements would be admitted at trial. Hand contends that his lawyer should have argued self defense to counter the state's contention that Hand killed Welch to prevent him from testifying against Hand. The Ohio Supreme Court found that Hand would have been required to testify himself in order to raise self defense. If Hand made the decision not to do so, there was no ineffective assistance of counsel; and if his lawyer made the decision, it was a tactical one that Hand could not attack on direct appeal. Hand suggests that there are no facts in the record to support a conclusion that he refused to testify or that his attorneys made a considered decision about this issue. He suggests that it is just as plausible to conclude that his lawyers simply overlooked the importance of a self-defense strategy. This is sheer speculation; moreover, as the Magistrate Judge aptly observed, "no trial lawyer would have willingly given the prosecutor what would have amounted to a pre-trial deposition of his client on the crux of the defense case if he could avoid it." (Doc. 144 at 22)
Sub-claim 9 of Ground Four argued that trial counsel should have called Philip Anthony as a defense witness. During an in limine hearing, Anthony testified about certain statements that Welch made to him. Anthony's testimony was partially helpful to Hand, as it contradicted some of the testimony the state presented about the method by which the killer entered the home and murdered Hand's first two wives. However, much of Anthony's testimony was very harmful to Hand's defense. Counsel's decision not to put Anthony on the stand as a defense witness was clearly a reasoned one, and reasonable jurists would not disagree with this Court's conclusion on that point. Sub-claim 10 contended that trial counsel failed to request limiting instructions to the jury regarding "other acts" evidence and the definition of "course of conduct." The Ohio Supreme Court rejected this sub-claim, finding that Hand had not been prejudiced, a decision this Court found did not contravene federal law. Hand has not shown that the Court's conclusion is subject to reasonable debate.
Therefore, the Court agrees with the Magistrate Judge that a COA will be granted on sub-claim 2 of Ground Four of the petition, and denied on the rest of the sub-claims raised there.
Ground Five of the petition alleged ineffective assistance of counsel at sentencing, raising seven sub-claims. The Magistrate Judge notes that sub-claim 1 of Hand's motion for a COA was not separately raised in his petition; the Magistrate Judge refers to the sub-claims as they are numbered in the motion. This Court will do the same, with cross-references to the Court's discussion of the issue in its order denying habeas relief. The Magistrate Judge recommends that a COA issue with respect to sub-claims 2, 6, and 7 (as denominated in Hand's motion) but denied on the remaining sub-claims.
Sub-claim 2 addresses trial counsel's failure to elicit additional testimony from Dr. Davis, Hand's forensic psychologist, regarding Hand's characteristics and lack of an antisocial personality disorder. (This issue is raised as sub-claim A of Hand's petition.) The state court found the claim barred by res judicata; this Court agreed, and alternatively found that the claim lacked merit. Hand does not contest the res judicata holding, but argues that the omitted evidence - Dr. Davis' MMPI test results and his opinion that Hand did not have an anti-social personality disorder - could have altered the outcome of his sentencing proceeding. The Magistrate Judge notes that appellate courts "have shown a distinct tendency to consider omitted mitigation evidence closely," and citing McGuire v. Warden, 738 F.3d 741, 2013 U.S. App. LEXIS 25767, **28-47 (6th Cir., Dec. 30, 2013). The Court agrees with the Magistrate Judge's observation that this omitted evidence is not of the same magnitude as that involved in Williams v. Taylor, 529 U.S. 362 (2000); however, it is true that the evidence was entirely omitted from Hand's trial. The Court agrees that reasonable jurists could debate its importance and relevance, and that a COA should issue on this sub-claim (discussed in the Court's order denying habeas relief, Doc. 118 at pp. 76-81).
Sub-claim 3 contends that counsel should have presented testimony from Hand's family members about his dysfunctional family background, instead of presenting this evidence through Dr. Davis. (This issue is sub-claim B of the petition.) He does not quarrel with the substance of the testimony presented by Dr. Davis, but contends it would have been more effective coming from his family members. Sub-claim 4 (sub-claim C of the petition) argued that his lawyers should have presented evidence about his purported inability to effectively communicate with the jury during his testimony and in reading his statement. The Magistrate Judge notes that his post-conviction claim on this issue argued that counsel should have called his friends to testify that he was a poor speaker; in his habeas petition, he argued that his poor speaking was the result of medication he was taking while awaiting trial, although there was no medical evidence or expert testimony regarding the latter contention. This Court rejected both of these sub-claims on the merits (Doc. 118 at 81-85). Reasonable jurists would not dispute either conclusion.
Sub-claim 5 (sub-claim D of the petition) concerns the lack of testimony regarding Hand's third wife, Glenna, whom he divorced. Hand argues that his son and sister should have testified about his only marriage that did not end when his wife was murdered. In denying this sub-claim, the Court noted that Hand testified about Glenna and their divorce, and found it would be speculative to conclude that additional testimony would have altered the result (Doc. 118 at 85-87). Reasonable jurists would not dispute this conclusion.
Sub-claim 6 is a broad challenge to trial counsel's mitigation investigation and preparation (sub-claim E of his petition). Sub-claim 7 (sub-claim F of the petition) alleges trial counsel's failure to object to the admission of all of the state's guilt-phase evidence at the sentencing hearing (see Doc. 118 at 94-96). As with sub-claim 2, arguments of insufficient mitigation investigation and evidence have been subject to heightened scrutiny in the appellate courts. The Court agrees with the Magistrate Judge that a certificate of appealability should issue with respect to these two sub-claims, along with sub-claim 2. A COA is denied with respect to the rest of the sub-claims in Ground Five.
Ground Six of the petition contends that the trial court's voir dire regarding prejudicial pretrial publicity was constitutionally inadequate. The issue was not raised on direct appeal, and the post-conviction state court found it was barred by res judicata. This Court agreed, finding that the issue should have been raised on direct appeal due to the numerous references to and questions about publicity during voir dire. The Court alternatively denied this claim on the merits. Hand seeks a certificate of appealability only with respect to the res judicata/procedural default aspect of the Court's ruling. He notes that the Ohio court of appeals stated that the newspaper articles were outside the direct appeal record, but nevertheless denied the claim. The Magistrate Judge recommends that a certificate issue on this aspect of Ground Six. This Court agrees that reasonable jurists could debate whether the Ohio court properly applied the res judicata bar.
Ground Eight argued that there was a lack of evidence to support Hand's conviction for escape. The Ohio Supreme Court rejected the claim on the merits, and this Court found no error in that decision. The Magistrate Judge recommends that a certificate be granted on this issue, because the crux of Hand's claim requires a weighing of the testimony in favor of and against his conviction. That is a judgment question on which reasonable jurists may well disagree. The Court will grant a COA with respect to Hand's evidentiary challenge to his conviction for escape.
Ground Nine of the petition asserted several sub-claims regarding the trial court's jury instructions. With regard to sub-claim one, the court's instruction on complicity to murder, this Court found that the Ohio Supreme Court's rejection of Hand's arguments was not contrary to federal law. Hand complained about the timing of the state's amendment to the bill of particulars on this subject, but not the content of the amendment. In addition, Hand did not identify any prejudice he suffered, and his motion for a certificate of appealability also fails to do so. The Court agrees that a certificate should not issue on this sub-claim. Hand's second sub-claim regarding instructions argued that the "course of conduct" capital specification was not sufficiently defined by the trial court, resulting in an unconstitutionally vague jury instruction. The Ohio Supreme Court found this sub-claim was procedurally defaulted for lack of a contemporaneous objection, and that there was no plain error in the instruction given to the jury. This Court agreed with both conclusions. Hand primarily relies on the dissent in State v. Scott, 101 Ohio St.3d 31 (2004), which opined that the majority decision failed to adopt a constitutionally proper standard for determining a "course of conduct" involving the killing two or more persons. The Magistrate Judge recommends that a certificate of appealability should issue on this claim, because reasonable jurists could disagree on whether or not the Ohio specification is unconstitutionally vague. The Court agrees with this recommendation.
Sub-claim 3 of Ground Nine argued that the trial court gave a fatally infirm reasonable doubt instruction. The Ohio Supreme Court summarily rejected this argument, citing numerous cases upholding substantially similar instructions. This Court found that decision did not contravene federal law, citing numerous Sixth Circuit cases rejecting similar habeas challenges. A certificate of appealability will not issue on this sub-claim.
Ground Eleven of Hand's petition alleged ineffective assistance of appellate counsel, raising six separate sub-claims. The Magistrate Judge recommended that a certificate be denied with respect to all of them. Sub-claim 1 alleged a failure to preserve Hand's collateral estoppel argument (which was based upon an award he obtained from the Ohio victims' compensation fund following Donna's murder); sub-claim 2 alleged a failure to appeal his trial counsel's failure to object to the testimony from Hand's bankruptcy attorney (discussed more fully with respect to the claim of trial counsel error in Ground Four); and sub-claim 3 alleged a failure to appeal the trial court's denial of Hand's motion to dismiss the specifications relating to the murders of Donna and Lori Hand. This Court rejected all three sub-claims as procedurally defaulted because each of them was not timely and properly raised in the state proceedings. Moreover, each sub-claim would fail on the merits if it was not defaulted. Hand presents no cogent reasons to suggest that the Court's conclusions on these sub-claims would be subject to reasoned debate.
Sub-claim 4 argued that appellate counsel failed to raise a sufficiency of the evidence challenge to his complicity with respect to the murders of Donna and Lori, in that Hand was charged with killing Welch to prevent his testimony about those murders. This Court rejected this sub-claim on the merits, citing the abundant evidence supporting the charge based on Welch's statements over the years. In his motion, Hand repeats the argument presented in his petition that this charge rested almost entirely upon the testimony of Kenneth Grimes. This Court rejected that assertion in denying habeas relief, and it is plainly insufficient to justify the issuance of a certificate of appealability.
Sub-claim 5 alleged that his appellate attorneys failed to amend his merit brief with respect to the juror bias issues raised in Ground Four regarding ineffective assistance of trial counsel. Sub-claim 6 alleged a failure to appeal the question of the trial court's voir dire on pretrial publicity. This Court found that Hand failed to show that either of these sub-claims was stronger than the underlying claims regarding trial counsel, which were raised on appeal and rejected on the merits. Hand has not shown that reasonable jurists would disagree with this Court's conclusions on these sub-claims.
CONCLUSION
For all of the foregoing reasons, the Court adopts the Magistrate Judge's Report and Recommendations (Doc. 144) in full. Pursuant to 28 U.S.C. §2253(c), Petitioner Gerald Hand is granted a certificate of appealability on Ground Two (fair presentation issue only); Ground Four, sub-claim 2; Ground Five, sub-claims 2, 6, and 7; Ground Six; Ground Eight; and the merits of sub-claim 2 of Ground Nine. As to each of these claims, the Court finds that reasonable jurists could reach different conclusions on the constitutional issues raised, or whether this Court was correct in its procedural rulings. The Court denies a certificate of appealability on the rest of Hand's petition.
The Clerk shall enter a final judgment denying Hand's petition for a writ of habeas corpus, and granting him a certificate of appealability as stated herein.
SO ORDERED.
THIS CASE IS CLOSED.
__________________________
Sandra S. Beckwith, Senior Judge
United States District Court