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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Shawn L. Hawkins, :

: Case No. C-1-97-296

Petitioner :

: District Judge Susan J. Dlott

v. :

: ORDER

Ralph Coyle, :

:

Respondent :

This matter is before the Court on Respondent’s Corrected Objections to the Magistrate

Judge’s Report and Recommendations of March 22, 2004 (doc. #207) and Petitioner’s Corrected

Objections and Appeal to District Court from Magistrate Judge’s Report and Recommendations

(doc. #210). In the March 22, 2004 Report and Recommendations (doc. #199), Magistrate Judge

Merz recommended granting Petitioner Shawn L. Hawkins’ Amended Writ of Habeas Corpus

(doc. #65) as to the Second Ground for Relief stated therein, but denying it as to the other

twenty-six grounds for relief. For the reasons that follow, the Court OVERRULES both sets of

objections and CONDITIONALLY GRANTS Petitioner’s Amended Writ of Habeas Corpus as

to the Second Ground for Relief. 

I. BACKGROUND

The facts of this crime as reported in the decisions of the state courts are as follows.

On June 11, 1989, Diamond Marteen and Jerome Thomas were interested in buying a

pound of marijuana. Terrance Richard knew Shawn Hawkins to be a potential seller. Richard,

Marteen, and Thomas drove to Hawkins’ residence on Newbrook Drive in Mt. Healthy, Ohio

that evening in a silver-gray Hyundai sedan owned by Richard’s mother. Hawkins negotiated

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the terms of a drug deal with the men. Hawkins provided the men with a pager number so that

they could contact him later for the delivery of the drugs. The three men showed Hawkins the

approximately $1,400 in cash that they intended to use to purchase the marijuana. Thomas

testified that Hawkins never entered the Hyundai sedan during the drug deal negotiations. 

Thereafter, Richard and Marteen drove Thomas to work at approximately 10:30 p.m. 

Richard and Marteen then proceeded to the home of Melissa Edwards. They used her telephone

to page someone and received a return phone call. Richard and Marteen left Edwards’ home

after receiving the telephone call.

Some time in the late hours of June 11, 1989, or the early morning hours of June 12,

1989, Richard and Marteen were killed. The bodies of Richard and Marteen were discovered

mid-morning on June 12, 1989 in the Hyundai sedan owned by Richard’s mother on Elizabeth

Street, a residential street in Mt. Healthy. Marteen’s body was found in the front passenger seat

in a reclined position; Richard’s body was found in the rear seat. Each man had been shot twice

at close range in the left side of the head. All four shots were fired from a .25 caliber weapon. 

The weapon was never recovered. 

Crime scene investigators determined that the crime had occurred in another location and

that the vehicle had been moved shortly after the killings. Investigators found no money in the

vehicle except for loose change. Jewelry that Marteen had been wearing the night before was

missing from his body. His pants pockets were turned partially inside out. A morgue attendant

later found a napkin on which a pager number was written in one of Richard’s pockets. The

pager number was discovered to be one used by Hawkins.

The police contacted Hawkins as a potential witness to the murders. He admitted to

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having discussed a drug deal with the victims on the evening of June 11, 1989. However,

Hawkins testified at trial that the deal was not consummated because he was unable to get in

touch with his suppliers. Hawkins told the police that he never saw the victims after 9:00 p.m.

on June 11th. The police stated that Hawkins denied having entered the Hyundai sedan. 

Forensic experts identified two fingerprints matching Hawkins’ prints inside the

Hyundai. One of the prints, a thumbprint, was set in human blood on a blood-spattered notebook

recovered from the floor of the rear of the automobile. The thumbprint could have been made

only by a bloody thumb touching the notebook or by a thumb touching a bloodstain on the

notebook. The blood on the notebook was Type A which matched the blood type of both

victims. The second fingerprint was found on the right rear door of the Hyundai.

Henry Brown, Jr., a seventeen year-old juvenile, eventually came forward to identify

Hawkins as the killer. Brown told the authorities that on June 12, 1989 at 12:30 a.m. he saw

Hawkins kill Richard in the rear seat of a Hyundai sedan on a cul-de-sac on Newbrook Drive. 

Brown stated that Marteen already was dead in the front seat. Brown stated further that Hawkins

rummaged through the vehicle and drove it from the murder scene. He described the murder

weapon as a .25 caliber handgun. He stated that Hawkins was wearing a black muscle shirt at

the time of the murders. 

Other witnesses described hearing four gun shots on June 12, 1989, between

approximately 12:30 a.m. and 1:00 a.m., originating in the cul-de-sac area of Newbrook Drive. 

Several minutes after the shots, Kenneth Boehmler saw a silver-gray sedan driving in a

suspicious manner on Hudepohl Lane, one block south of the Newbrook Drive cul-de-sac. 

When the driver of the sedan exited the vehicle for a few moments, Boehlmer identified him as

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wearing a dark muscle shirt and described his height, weight, and build in a manner consistent

with Hawkins’ height, weight, and build. Boehmler also saw someone reclining in the front

passenger seat as if asleep. 

In September 1989, Hawkins was indicted for the aggravated murders of Richard and

Marteen. For each of the two murders, Hawkins was indicted on two counts: one charging that

the offense was committed with prior calculation and design and one charging felony murder

premised upon aggravated robbery. Each of the four counts of aggravated murder carried two

death penalty specifications. Hawkins also was indicted on two counts of aggravated robbery

with a firearm.

Hawkins was tried in December 1989 before a jury in the Hamilton County, Ohio

Common Pleas Court. He testified on his own behalf and denied the murders and robberies. He

also presented the testimony of other witnesses. Nonetheless, the jury convicted Hawkins of all

charges and all specifications. The jury recommended a death sentence for each aggravated

murder count. The trial court sentenced Hawkins to death. 

Hawkins appealed the verdict to the Ohio First District Court of Appeals and the Ohio

Supreme Court, both of which affirmed his conviction and sentence of death. The Ohio Supreme

Court also sua sponte merged the two separate convictions for each murder so that a single death

sentence remained for each homicide. The Ohio Supreme Court denied Hawkins’ motion for

rehearing and the United States Supreme Court denied certiorari. Hawkins’ petition for postconviction relief also was denied by the state courts. Finally, Hawkins’ Application to Reopen

under Ohio R. App. P. 26(B) and additional motions for reconsideration and petitions for writs of

certiorari were denied by the Ohio courts and the Supreme Court.

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Hawkins then filed his petition for habeas corpus in this Court in 1997. Following

discovery and an evidentiary hearing, Magistrate Judge Merz issued his Report and

Recommendations (doc. #199) on March 22, 2004. The pending objections filed by both

Petitioner and the State followed.

II. STANDARD FOR HABEAS CORPUS PETITIONS

Hawkins’ petition was filed after April 24, 1996 so it is subject to the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). See Richey v. Mitchell, 395 F.3d 660, 671

(6th Cir. 2005). A habeas petitioner must exhaust all remedies available to him in state court

before filing a habeas petition. See 28 U.S.C. § 2254(b)(1)(A). The AEDPA requires federal

courts to respect any determination made by a state court unless it: (1) “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court,” or (2) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceedings.” 28 U.S.C. §§ 2254(d)(1)- (2); see also

Williams v. Taylor, 529 U.S. 362, 402-03 (2000). In Williams, the Supreme Court further

explained the meaning of § 2254(d)(1) as follows:

Under the “contrary to” clause, a federal habeas court may grant the writ if the

state court arrives at a conclusion opposite to that reached by this Court on a

question of law or if the state court decides a case differently than this Court has

on a set of materially indistinguishable facts. Under the “unreasonable

application” clause, a federal habeas court may grant the writ if the state court

identifies the correct governing principle from this Court's decisions but

unreasonably applies that principle to the facts of the prisoner’s case.

 529 U.S. at 412-13. An unreasonable application is more than simply incorrect; it must be

objectively unreasonable. See id. at 409, 411; see also Rompilla v. Beard, No. 04-5462, slip op.

at 4 (U.S. June 20, 2005). “Clearly established Federal law” under § 2254(d)(1) means “the

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 The fundamental miscarriage of justice gateway, also known as an actual innocence

gateway, is open to petitioners who submit new evidence showing that “a constitutional violation

has probably resulted in the conviction of one who is actually innocent.” Williams v. Bagley,

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governing legal principle or principles set forth by the Supreme Court at the time the state court

renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). “Under [the] AEDPA, if

there is no ‘clearly established Federal law, as determined by the Supreme Court,’ that supports a

habeas petitioner’s legal argument, the argument must fail.” Miskel v. Karnes, 397 F.3d 446,

453 (6th Cir. 2005). 

Pursuant to 28 U.S.C. § 2254(e)(1), a determination of a factual issue by a state court

shall be presumed correct and the applicant shall have the burden of rebutting the presumption

by clear and convincing evidence. See McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir. 2004). 

This presumption does not apply to mixed questions of law and fact. See Mitchell v. Mason, 325

F.3d 732, 737-38 (6th Cir. 2003) cert denied 125 S.Ct. 861 (2005). Instead, the “unreasonable

application” prong of § 2254(d)(1) applies to mixed questions of law and fact. See id. at 738.

A federal court will not review a question of federal law decided by an Ohio court if the

decision rests on a state law ground that is independent of the federal question and adequate to

support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). This is true

whether the state law ground is substantive or procedural. See id. If a state law prisoner “has

defaulted his federal claims in state court pursuant to an independent and adequate state

procedural rule, federal habeas review of the claims is barred unless the prisoner can

demonstrate cause for the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims will result in a fundamental

miscarriage of justice.” Coleman, 501 U.S. at 749.1

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380 F.3d 932, 973 (6th Cir. 2004) cert denied No. 04-8810, – S.Ct.– (Apr. 25, 2005) (quoting

Schlup v. Delo, 513 U.S. 298, 327 (1995)). The petitioner must show that it is more likely than

not that a reasonable juror would not have convicted him in light of the new evidence. See id.

The fundamental miscarriage of justice gateway also can be used to establish that the petitioner

is “actually innocent” of the sentence of death. See id. This requires proving “by clear and

convincing evidence that, but for a constitutional error, no reasonable juror would have found the

petitioner eligible for the death penalty under the applicable state law.” Id. (quoting Sawyer v.

Whitley, 505 U.S. 333, 336 (1992)). A claim of innocence of the death penalty is not a

constitutional claim itself but only a gateway through which the petitioner must pass to have his

otherwise barred constitutional claim heard on the merits. See id.

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The Sixth Circuit requires a four-part analysis when a state respondent alleges that a

habeas claim is barred by procedural default. 

First, the court must find there is a state procedural rule that applies to the

petitioner’s claim, and the petitioner failed to comply with the rule. . . . Second,

the court must determine whether the state courts actually enforced the state

procedural sanction. . . . Third, the court must decide whether the state

procedural forfeiture is an adequate and independent state ground upon which the

state can rely to foreclose review of the petitioner's federal constitutional

claim. . . . [Fourth], once a court determines the petitioner did not comply with a

state procedural rule, and the rule is an adequate and independent state ground,

then the petitioner must demonstrate cause for not following the procedural rule

and prejudice resulting from the alleged constitutional error.

Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998) (citing Maupin v. Smith, 785 F.2d 135

(6th Cir. 1986)) (emphasis added). 

In this case, Magistrate Judge Merz held several claims to be barred by procedural

default based on the adequate and independent state ground of res judicata. The Ohio Supreme

Court set forth Ohio’s res judicata rule in 1967 as follows:

7. Constitutional issues cannot be considered in postconviction proceedings under

Section 2953.21 et seq., Revised Code, where they have already been or could

have been fully litigated by the prisoner while represented by counsel, either

before his judgment of conviction or on direct appeal from that judgment, and

thus have been adjudicated against him.

* * * *

9. Under the doctrine of res judicata, a final judgment of conviction bars a

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convicted defendant who was represented by counsel from raising and litigating

in any proceeding except an appeal from that judgment, any defense or any

claimed lack of due process that was raised or could have been raised by the

defendant at the trial, which resulted in that judgment of conviction, or on an

appeal from that judgment.

Ohio v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104, at syllabus ¶¶ 7, 9 (1967). The Ohio res

judicata rule which requires that claims based solely on facts in the record be raised for the first

time on direct appeal has been upheld by the Sixth Circuit as an adequate and independent state

law ground for upholding a conviction. See e.g., Frazier v. Huffman, 343 F.3d 780, 805

amended 348 F.3d 174 (6th Cir. 2003); Buell v. Mitchell, 274 F.3d 337, 349 (6th Cir. 2001).

III. ANALYSIS

This Court will address Petitioner’s Grounds for Relief following the same logical

groupings and in the same order they were analyzed in the Report and Recommendations.

A. JURY SELECTION

FIFTH GROUND FOR RELIEF

Hamilton County underrepresents minorities in grand juries and overprosecutes death

cases against minorities in violation of the Sixth Amendment’s fair cross-section clause, the

Eighth Amendment’s prohibition against cruel and unusual punishment and the

Fourteenth Amendment’s equal protection and due process clauses.

Petitioner challenges the manner in which the grand jury venire and grand jury

forepersons are chosen in this Ground for Relief. Petitioner did not raise this issue during his

state court pretrial proceedings or on direct appeal. Petitioner raised this issue for the first time

in post-conviction relief proceedings as the thirtieth, thirty-first, and thirty-second claims for

relief. (Doc. #17, ex. KK.) The trial court held that the issues were barred by the doctrine of res

judicata under Ohio law. (Doc. #17, ex. OO p. 25-26.) The court of appeals affirmed the res

judicata holding. See Ohio v. Hawkins, 1996 WL 348024, at *3 (Ohio Ct. App. June 26, 1996). 

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The Ohio Supreme Court declined review. See Ohio v. Hawkins, 77 Ohio St. 3d 1486, 673

N.E.2d 145 (1996) (Table). Based on the state court post-conviction holdings, and in recognition

that Ohio R. Crim. P. 6 and 12 require challenges such as those raised by Petitioner to be raised

in pretrial proceedings, Magistate Judge Merz recommended denying the Fifth Ground for Relief

as procedurally defaulted. 

In his objections, Petitioner contends that the Respondent waived this procedural defense

by not expressly raising it. Even assuming this contention to be true, Magistrate Judge Merz’s

holding was not erroneous. Federal courts hearing habeas petitions are permitted to raise

procedural defaults sua sponte, particularly where, as here, the petitioner has been given an

opportunity to respond. See Lorraine v. Coyle, 291 F.3d 416, 426 corrected in 307 F.3d 459 (6th

Cir. 2002); see also Morse v. Trippett, No. 00-1868, 37 Fed. Appx. 96, 2002 WL 257207, at *5

(6th Cir. Feb. 20, 2002) (holding that court sua sponte may raise default issue not raised by the

State so long as the State did not affirmatively waive the defense).

Petitioner also contends that the Fifth Ground was not defaulted because Petitioner raised

it as part of his direct appeal in his Application to Reopen the Direct Appeal under Ohio R. App.

P. 26(B). This argument fails because the Ohio Supreme Court recently has held that

proceedings under Rule 26(B) are collateral postconviction proceedings and not part of the direct

appeal process. See Morgan v. Eads, 104 Ohio St. 3d 142, 818 N.E.2d 1157, at syllabus (2004). 

Next, Petitioner appears to argue that a procedural default should be excused where a

petitioner claims that Ohio courts discriminate in the selection of grand jurors, and the petitioner

is refused discovery on the issue in post-conviction proceedings. He cites Rose v. Mitchell, 443

U.S. 545 (1979), wherein the Supreme Court held that discrimination in the selection of grand

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 In another case cited by Petitioner to support this Ground for Relief, Vasquez v. Hillery,

474 U.S. 254 (1986), the habeas corpus petitioner had moved to quash his state court indictment

before trial on the basis that blacks had been systematically excluded from the grand jury. See

id. at 256. As discussed in more detail later in the text above, that is the procedure that

Petitioner here should have followed, but did not follow. Vasquez does not support Petitioner’s

argument that the Court should disregard his procedural default. 

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jurors is grounds for setting aside a criminal conviction, for the proposition that the Supreme

Court does not trust state courts to grant full and fair hearings on claims of discrimination in the

selection of grand jurors. However, as Respondent points out, the Court noted in Rose that

“[t]here is no contention in this case that respondents sought to press their challenge to the grand

jury without complying with state procedural rules as to when such claims may be raised.” See

id. at 559 n.8. Therefore, there was no issue of procedural default in Rose. Subsequent to Rose,

other federal courts have applied a procedural default to bar claims of discrimination in the

selection of grand jurors. See Pickney v. Cain, 337 F.3d 542, 546 (5th Cir. 2003); Francois v.

Wainwright, 741 F.2d 1275, 1283 (11th Cir. 1984).2 

Petitioner next argues that Ohio has no legitimate state interest in recognizing the

procedural default in this case. The Court disagrees. The Supreme Court has recognized that the

important state interests served by the pretrial objection rule include: “the possible avoidance of

an unnecessary trial or of a retrial, the difficulty of making factual determinations concerning

grand juries long after the indictment has been handed down and the grand jury disbanded, and

the potential disruption to numerous convictions of finding a defect in a grand jury only after the

jury has handed down indictments in many cases.” Coleman, 501 U.S. at 745-46. 

Finally, Petitioner argues that the ineffective assistance of his appellate counsel in failing

to raise the issue on appeal, or the State’s concealment of its grand jury foreperson selection

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 Ohio v. Hawkins, Nos. C-900092, C-910017, slip op. (Ohio Ct. App. July 21, 1995)

aff’d 74 Ohio St. 3d 530, 660 N.E.2d 454 (1996).

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process, constitute “cause” to excuse the procedural default. Beginning with the first half of this

argument, an ineffective assistance of counsel claim must be presented as an independent claim

in state court before it may be used to establish cause for a procedural default. See Williams,

380 F.3d at 971. In Ohio, a claim for ineffective assistance of appellate counsel must be raised

in a motion for reopening before the state court of appeals pursuant to Ohio R. App. P. 26(B),

rather than in a post-conviction proceeding pursuant to Ohio Revised Code (“O.R.C.”)

§ 2953.21. See id. (citing Ohio v. Murnahan, 63 Ohio St. 3d 60, 65, 584 N.E.2d 1204 (1992)). 

Ohio R. App. P. 26(B) provides that “A defendant in a criminal case may apply for reopening of

the appeal from the judgment of conviction and sentence, based on a claim of ineffective

assistance of appellate counsel.” The Sixth Circuit has held that ineffective assistance of

appellate counsel can supply the cause, which together with prejudice, would excuse a

procedural default. See Richey, 395 F.3d at 679; McFarland v. Yukins, 356 F.3d 688, 699 (6th

Cir. 2004). However, the ineffective assistance of appellate counsel claim must not itself be

procedurally defaulted. See Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).

Ohio R. App. P. 26(B) requires that the application for reopening be filed within 90 days

of the appellate court decision unless the applicant shows “good cause” for filing at a later date. 

Hawkins did not file his Rule 26(B) Application to Reopen until more than two years after the

court of appeals decision, and the state courts denied the motion as untimely. (Doc. #17 ex.

GGG).3 In a similar situation where a petitioner’s Rule 26(B) motion was denied as untimely,

the Sixth Circuit held that the “good cause” standard of Rule 26 has not been applied with the

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regularity or consistency needed to provide an adequate state law procedural basis to preclude

federal habeas relief. See Richey, 395 F.3d at 680. The Sixth Circuit held, therefore, that the

petitioner’s challenge to the effectiveness of his appellate counsel was preserved. See id.

Likewise, Petitioner’s challenge to the effectiveness of his appellate counsel was preserved here

and the merits of his ineffective assistance of appellate counsel claim must be examined to

determine if they provide cause and prejudice for the procedural default of his Fifth Ground for

Relief. 

Ordinary attorney error cannot constitute cause. See Murray v. Carrier, 477 U.S. 478,

488 (1986); Lucas v. O’Dea, 179 F.3d 412, 419 (6th Cir. 1999). “Attorney error does not

amount to ‘cause’ unless it rises to the level of a constitutional violation of the right to counsel

under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” 

Williams, 380 F.3d at 970; see also Lucas, 179 F.3d at 419. To establish ineffective assistance

of counsel under Strickland, it must be shown that counsel’s performance was deficient and that

the deficient performance so prejudiced the defense that the trial was rendered unfair and the

result unreliable. See 466 U.S. at 687. 

Petitioner’s appellate counsel were not ineffective under Strickland for not raising this

claim on direct appeal. Ohio R. Crim. P. 6 and 12 require that challenges to the sufficiency of an

indictment or to the qualifications or composition of a grand jury be made in pretrial

proceedings. Petitioner has not alleged that his trial counsel was ineffective for failing to make

these challenges. The Ohio Supreme Court has held that the failure to raise an issue to the trial

court regarding the composition of a grand jury results in waiver. See Ohio v. Issa, 93 Ohio St.

3d 49, 61, 752 N.E.2d 904 (2001). Appellate counsel is not ineffective for failing to raise on

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appeal an issue that was not properly preserved before trial. See Ohio v. Hutton, 100 Ohio St. 3d

176, 797 N.E.2d 948, ¶ 54 (2003) (appellate counsel can reasonably decide not to raise issues

that were waived at trial). Thus, the alleged ineffectiveness of Petitioner’s appellate counsel

does not provide cause to excuse the procedural default of the Fifth Ground for Relief. 

Turning to Petitioner’s argument that the State’s concealment of its grand jury foreperson

selection process constitutes cause to excuse the procedural default, Petitioner agrees that the

process for selecting grand jury forepersons is a matter of statute and is not concealed. See

O.R.C. § 2939.02. Petitioner contends that abuse of the process was concealed because

Petitioner could not obtain the gender and race of each grand jury foreperson without a

subpoena. Petitioner contends that state court judges had denied him the right to subpoena the

records during the post-conviction proceedings. However, Petitioner does not explain why his

counsel did not seek to discover the grand jury records during the pretrial proceedings as part of

a motion under Ohio R. Crim. P. 6 or 12 to move to dismiss the indictment or to challenge the

sufficiency of the indictment. Accordingly, Petitioner has not adequately proven cause and

prejudice to excuse the procedural default. 

Accordingly, Petitioner’s objections are overruled and Petitioner’s Fifth Ground for

Relief is denied.

TWENTY-FOURTH GROUND FOR RELIEF

The prosecutorial misconduct and ineffectiveness of trial counsel during the voir dire phase

of Hawkins’ trial violated his rights as guaranteed by the Fifth, Sixth, Eighth and

Fourteenth Amendments.

In this claim, Petitioner alleges that during voir dire the prosecutors improperly asked

whether the prospective jurors would be able to recommend the death penalty and that his trial

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 Ohio’s contemporaneous objection rule states that parties must call errors to the trial

court’s attention which can be avoided or corrected at that time in order to preserve the error for

appeal. See Ohio v. Williams, 51 Ohio St. 2d 112, 364 N.E.2d 1364, at syllabus ¶ 1 (1977)

abrogated on other grounds Williams v. Ohio, 438 U.S. 911 (1978). The only exception to the

contemporaneous objection rule is that “plain errors or errors affecting substantial rights” are not

waived by the failure to make a contemporaneous objection. See Ohio R. Crim. P. 52(B);

see also Ohio v. Murphy, 91 Ohio St. 3d 516, 532, 747 N.E.2d 765 (2001). The Ohio evidence

rule “constitutes an adequate and independent state ground that bars federal habeas review

absent a showing of cause and prejudice.” Mason v. Mitchell, 320 F.3d 604, 635 (6th Cir. 2003)

(citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001)).

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counsel were ineffective for failing to object. Magistate Judge Merz denied this claim on the

basis of procedural default. Petitioner raised the issue of prosecutorial misconduct for the first

time on direct appeal. The court of appeals held the issue was waived because it was not brought

to the trial court’s attention at a time when it could have been corrected. See Hawkins, 1991 WL

270633, at *7.4 The Ohio Supreme Court summarily denied the issue without a substantive

discussion. See Hawkins, 66 Ohio St. 3d at 350-51. 

In his objection to this subclaim, Petitioner argues that the Ohio Supreme Court’s

summary denial of the issue on direct appeal did not clearly and expressly rest on the doctrine of

res judicata. See Hawkins, 66 Ohio St. 3d at 350-51. In such situations, however, this Court 

“looks through” the Ohio Supreme Court to the prior reasoned decision of the appeals court that

addressed the procedural issue on the merits. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04

(1991); Frazier, 343 F.3d at 805. The court of appeals had held on direct appeal that Petitioner

had waived the issue. See Hawkins, 1991 WL 270633, at *7. Moreover, in the last reasoned

state court opinion, the court of appeals held in the post-conviction proceedings that the claim

was barred by res judicata. See Hawkins, 1996 WL 348024, at *5. Accordingly, this Court

agrees with Magistrate Judge Merz that this subclaim is procedurally defaulted based on the state

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court’s application of the res judicata doctrine. 

In the second subclaim, Petitioner asserts that his trial counsel were ineffective for failing

to object to the prosecutor’s misconduct during voir dire. Petitioner raised this claim in the postconviction relief proceedings. (Doc. #17 ex. OO.) The trial court held that this subclaim also

was supported solely by reference to the trial record and was barred by the doctrine of

res judicata. (Id. ex. OO at 34-36.) The court of appeals concurred. See Hawkins, 1996 WL

348024, at *5. As such, the claim is procedurally defaulted. 

Petitioner nonetheless contends that the ineffectiveness of his appellate counsel excuses

the default. He raised the issue of the ineffectiveness of his appellate counsel in his Motion for

Reconsideration to the Supreme Court and in his Ohio R. App. P 26(B) Application to Reopen. 

(Doc. #17 ex. WW p. 11; id. ex. CCC p. 8.) He argues that his appellate counsel should have

raised on appeal that trial counsel were ineffective for not objecting during the trial. However,

as stated above in regards to the Fifth Ground for Relief, “[a]ttorney error does not amount to

‘cause’ unless it rises to the level of a constitutional violation of the right to counsel under

Strickland.” Williams, 380 F.3d at 970. A deficient performance for purposes of Strickland is

one that falls below objective standards of reasonableness as measured by prevailing

professional norms. See Bigelow v. Williams, 367 F.3d 562, 570 (6th Cir. 2004). Courts must

“‘indulge a strong presumption’ that a lawyer’s conduct in discharging his duties ‘falls within

the wide range of reasonable professional assistance.’” Id. (quoting Strickland, 466 U.S. at 689). 

Appellate counsel need not raise every nonfrivolous claim on direct appeal in order to provide

effective assistance. See Williams, 380 F.3d at 971. “Generally, only when ignored issues are

clearly stronger than those presented, will the presumption of effective assistance of counsel be

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16

overcome.” Id. (quoting Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002)). In another

case, the Sixth Circuit stated that counsel’s errors must have been so serious that counsel was

“scarcely functioning as counsel at all.” McMeans v. Brigano, 228 F.3d 674, 682 (6th Cir.

2000). Whether counsel was constitutionally ineffective is a mixed question of law and fact

subject to the “unreasonable application” test of § 2254(d)(1). See Mitchell, 325 F.3d at 738. 

Under the prejudice prong of the Strickland test, “[t]he defendant must show that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” 466 U.S. at 694. A reasonable probability is one that “is sufficient

to undermine confidence in the outcome.” Id. The Supreme Court further explained:

When a defendant challenges a conviction, the question is whether there is a

reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt. When a defendant challenges a death sentence

such as the one at issue in this case, the question is whether there is a reasonable

probability that, absent the errors, the sentencer--including an appellate court, to

the extent it independently reweighs the evidence--would have concluded that the

balance of aggravating and mitigating circumstances did not warrant death.

Id. at 695. A petitioner has not established prejudice if a court is left with only speculation on

whether the outcome would have been different. See Baze v. Parker, 371 F.3d 310, 322 (6th Cir.

2004). 

The Sixth Circuit has suggested eleven factors to consider when examining whether

appellate counsel was ineffective:

(1) Were the omitted issues “significant and obvious”? 

(2) Was there arguably contrary authority on the omitted issues? 

(3) Were the omitted issues clearly stronger than those presented?

(4) Were the omitted issues objected to at trial? 

(5) Were the trial court’s rulings subject to deference on appeal? 

(6) Did appellate counsel testify in a collateral proceeding as to his appeal

strategy and, if so, were the justifications reasonable? 

(7) What was appellate counsel’s level of experience and expertise? 

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17

(8) Did the petitioner and appellate counsel meet and go over possible issues? 

(9) Is there evidence that counsel reviewed all the facts? 

(10) Were the omitted issues dealt with in other assignments of error? 

(11) Was the decision to omit an issue an unreasonable one which only an 

incompetent attorney would adopt? 

Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999).

The Court cannot agree that appellate counsel were deficient for not raising on direct

appeal the issue of trial counsel’s ineffectiveness for failing to object to the prosecutors’

statements during voir dire. Petitioner contends that the trial counsel were deficient for not

objecting to the following instances of alleged misconduct: (1) prosecutors repeatedly asking

prospective jurors if they could “recommend” the death penalty; (2) prosecutors improperly

vouching for Keith Miree; and (3) prosecutors offering improper opinion and improper

argument. Also, Petitioner contends that trial counsel were ineffective for not striking certain

jurors. 

As to the first subclaim, Petitioner makes no citation to the trial record for the alleged

numerous instances where the prosecutors asked prospective jurors if they could recommend the

death penalty. Under O.R.C. § 2929.03(D)(2) and (3), the jury and the trial court make

independent findings as to whether the aggravating circumstances outweigh the mitigating

factors. Neither the trial court nor the reviewing appellate courts are bound by a jury’s death

recommendation. Thus, although the Ohio Supreme Court has repeatedly stated a preference

that no reference be made to the jury about the finality of their decision, it is harmless error to

make accurate comments about the jury’s role. See e.g., Ohio v. Gumm, 73 Ohio St. 3d 413,

431, 653 N.E.2d 253 (1995); Ohio v. Broom, 40 Ohio St. 3d 277, 291-92, 533 N.E.2d 682

(1988); Ohio v. Williams, 23 Ohio St. 3d 16, 490 N.E.2d 906 (1986). Thus, neither trial counsel

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5

 Petitioner erroneously states in his brief and his Amended Petition that his claim refers

to prosecutorial vouching for Keith Miree. It is clear from the argument presented and from the

transcript pages cited, however, that Petitioner meant to state that his claim involved

prosecutorial vouching for Henry Brown. 

18

nor appellate counsel were deficient for not raising this issue.

As to the second subclaim, the Court discusses the alleged instances of improper

vouching at greater length in regards to the Twenty-Fifth Ground for Relief, infra.

5

 The Court

finds that only two of the instances cited by Petitioner might constitute improper vouching, but

that neither instance was flagrant, nor likely to prejudice the defendant, nor likely to render the

trial unfair. Thus, neither trial counsel nor appellate counsel were deficient for not raising this

issue. 

As to the third subclaim, the alleged instances of prosecutorial misconduct by the

insertion of opinion or improper argument, the instances either were not improper taken in

context, or alternatively, did not prejudice Hawkins. Hawkins alleges prosecutorial misconduct

when the prosecutor stated that he represented the people of Hamilton County and the State of

Ohio, that the State was entitled to a fair trial, and that he was not there to “railroad” Hawkins. 

(T.p. 329, 404, 668.) Again, the Court finds that the prosecutor’s statements in context were not

likely to prejudice Hawkins nor render the trial unfair. Neither trial counsel nor appellate

counsel were deficient for not raising this issue.

Finally, at to the fourth subclaim, Petitioner states that his trial counsel should have

struck particular jury members. The Court has looked carefully at the referenced sections of the

venire questioning. Taken in context, the Court finds that none of the answers provided by the

jurors indicated a likelihood that they would be biased for or against Hawkins or that they would

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6

 One juror merely (1) implied that she would consider all the evidence and law before

reaching a decision because that is what she would want jurors to do for her, (2) admitted that

she had not known that she could not infer guilt from a defendant’s decision not to testify, but

would abide by an instruction to that effect from the judge, and (3) expressed that an expert’s

credentials “speak well to [her].” (T.p. 181, 188-89, 192.) A second juror stated that in regards

to a question of whether he would automatically disbelieve Hawkins because he was a convicted

felon, that he hoped he would try the case based on the evidence and later stated that he would

evaluate the weight to give Hawkins’ testimony the same as he would other witnesses. (T.p.

247.) The third juror admitted that it would be difficult to treat Hawkins the same as other

witnesses, but also stated “I don’t think this is going to be a problem.” (T.p. 313-14.) A fourth

juror stated “I think so” in response to a question whether she would be able to abide by the

judge’s instruction to ignore questions and answers that the judge had struck. (T.p. 530.) A fifth

juror regularly used the term “I believe so” in response to questions about whether he would

afford Hawkins’ his constitutional rights and inferences. (T.p. 815-30.) A sixth juror said she

would “try” and that she would make her best attempt to handle viewing pictures of the autopsy. 

(T.p. 890.) A seventh juror agreed with defense counsel’s statement that he would not expect

police officers to be deceitful in their testimony, but also stated that he would judge their

credibility. (T.p. 980-81.) 

19

not listen to the judge’s instructions.6 Neither trial counsel nor appellate counsel were deficient

for not raising this issue.

Accordingly, Petitioner’s objections are overruled and the Twenty-Fourth Ground for

Relief is denied.

B. TRIAL COURT ERROR

NINTH GROUND FOR RELIEF

The trial court violated Hawkins’ rights to speedy trial as guaranteed by the Sixth, Eighth

and Fourteenth Amendments.

In the Ninth Ground for Relief, Petitioner contends that his federal right to a speedy trial

was violated. Magistate Judge Merz held that this claim was procedurally defaulted because

Petitioner failed to raise it during his state post-conviction relief proceedings. Instead, Petitioner

argued before the Ohio courts only that he was not provided a speedy trial in violation of O.R.C.

§ 2945.71. Both the court of appeals and the Ohio Supreme Court found the state-law based

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issue to be without merit. See Hawkins, 1991 WL 270633, at *4-5 aff’d 66 Ohio St. 3d at 343. 

Federal habeas relief is available on a claim only after the petitioner has exhausted the claim in

state court. See 28 U.S.C. § 2254(b)(1) & (c). Thus, Magistate Judge Merz found that because

Petitioner had not exhausted in state court a claim for violation of his federal right to a speedy

trial, the claim was procedurally defaulted. Claims raised in federal habeas proceedings that rest

on different theories than those presented in the state post-conviction relief proceedings are

procedurally defaulted. See Lorraine, 291 F.3d at 425. This Court is permitted to raise sua

sponte the procedural default, even if Respondent addressed the claim on the merits. See

Lorraine, 291 F.3d at 426; Morse, 2002 WL 257207, at *5. Accordingly, Petitioner’s objections

are overruled and the Ninth Ground for Relief is denied. 

TENTH GROUND FOR RELIEF

The trial court violated Hawkins’ right to be present at all critical stages of the proceedings

when Hawkins was not present for a day of voir dire and to respond to a jury question,

thus violating his rights guaranteed by the Sixth, Eighth and Fourteenth Amendments. 

In this Tenth Ground for Relief, Petitioner raises two sub-claims: (1) that his right to be

present at all critical stages of the proceedings was violated when the judge made an ex parte

communication to the jury and (2) that his right to be present at all critical stages was violated

when he was not present for an entire day of voir dire. Petitioner raised the first subclaim on

direct appeal. The court of appeals found that the ex parte communication by the judge was the

mere calling for an adjournment and was made with the consent of counsel. See Hawkins, 1991

WL 270633, at *7. The court of appeals also found that the judge did not respond to the jury’s

question ex parte, but deferred the question until all counsel were present in open court. See id.

The Ohio Supreme Court did not address the claim directly, but instead stated that “[w]ith

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21

respect to appellant’s remaining propositions of law, after careful review of the record and case

law, we fail to detect any errors that may be considered to have affected the outcome of

appellant's trial.” Hawkins, 66 Ohio St. 3d at 350-51. 

Magistrate Judge Merz denied the ex parte subclaim on the merits. Magistrate Judge

Merz thoroughly reviewed the applicable portions of the trial court transcript and this Court

adopts his accurate summation as if fully re-stated herein. On the subject of ex parte

communications, the Sixth Circuit has stated as follows: 

The right of the accused to be present during all critical stages of a trial against

him is fundamental. Ex parte communications are absolutely discouraged and a

question from the jury should be answered in open court, after providing the

defendant with an opportunity to be heard. Nevertheless, even if a judge

improperly participates in ex parte communications, such communications will

not necessarily constitute reversible error. There must be a reasonable possibility

that the ex parte communications affected the verdict.

United States v. Paul, No. 01-1284, 57 Fed. Appx. 597, 2003 WL 173059, at *5 (6th Cir. Jan. 23,

2003) (citations omitted). Where such ex parte communications occur, the trial court should

give the parties notice regarding the facts of the communication on the record. See Standard

Alliance Industr., Inc. v. Black Clawson Co., 587 F.2d 813, 828 (6th Cir. 1978). 

The ex parte communication here is grounds for relief only if it caused prejudice to

Petitioner. See Paul, 2003 WL 173059, at *5-6. Petitioner claims that he suffered prejudice

because the jury might have inferred from his absence and defense counsel’s absence that “this

was not important enough for defense counsel to be here, . . . that defense doesn’t care, that

defendant does not care.” (T.p. 2417.) The Court does not agree. This case is not like the one

cited by Petitioner in which the trial court encouraged a guilty verdict in its ex parte

communication to a deadlocked jury by telling them to “[c]onsider the offense further.” See

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22

United States v. Benavides, 549 F.2d 392, 393 (5th Cir. 1977). The trial judge here did not give

any substantive instructions or make any substantive comments. He repeatedly expressed

concern using inclusive language about proceeding in any fashion without Hawkins, his counsel

and the prosecution present. (T.p. 2405-08.) Nothing in the trial judge’s statements to the jury

could be construed as an expression by the trial judge as to Hawkins’ guilt or innocence. As

such, Petitioner’s substantive rights were not violated. Petitioner’s objections to this subclaim

are overruled.

As to the second subclaim, Magistrate Judge Merz held that the claim was procedurally

defaulted because Petitioner did not raise the issue that he had been absent during a portion of

the voir dire in the direct appeal or post-conviction relief proceedings. This Court is permitted to

raise sua sponte the procedural default, even if Respondent addressed the claim on the merits. 

See Lorraine, 291 F.3d at 426; Morse, 2002 WL 257207, at *5. Accordingly, the Court agrees

that this subclaim is barred by Petitioner’s procedural default.

Alternatively, Magistrate Judge Merz also denied the second subclaim on the merits. 

Magistrate Judge Merz held that the Petitioner’s claim was not supported by the trial transcript. 

Again, Magistrate Judge Merz thoroughly reviewed the applicable portions of the trial court

transcript and this Court adopts his accurate summation as if fully re-stated herein. Defense

counsel pointed out that Petitioner was absent when Court started its afternoon voir dire session

on December 8, 1990, but defense counsel did not object to proceeding. (T.p. 875.) The session 

began with an off-the-record conversation with counsel, and then debate on the record as to

which venire member was next to be examined. (T.p. 875-77.) Although it is not clear when

Petitioner entered the courtroom, the record reflects that he was seated in the courtroom within

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23

moments after the substantive questioning of the venire member began. (T.p. 879.) Petitioner

simply has failed to prove a constitutional violation occurred in regards to the second subclaim. 

Accordingly, the Court overrules Petitioner’s objections and denies the Tenth Ground for

Relief. 

TWENTY-THIRD GROUND FOR RELIEF

The trial court made many erroneous rulings during Hawkins’ trial violating Hawkins’

rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments. 

In the Twenty-Third Ground for Relief, Petitioner asserts that the trial court made four

particular erroneous rulings during the trial. Petitioner raises only three of the rulings in his

Objections to the Report and Recommendations: (1) the trial court’s refusal to play Henry

Brown’s taped statements to the jury or to allow the jury to re-hear the trial testimony of Henry

Brown or his sister, Shawn Brown; (2) the trial court’s denial of Hawkins’ motion to compel

discovery or for the police to turn over their entire investigative file; and (3) the trial court’s

failure to allow defense counsel to inform the jury that Shawn Brown’s mother coached her

during her testimony. Petitioner did not raise these subclaims on direct appeal, but only during

the post-conviction relief proceedings. The trial court found in the post-conviction relief

hearings that the subclaims were barred by the doctrine of res judicata as they were based solely

on the record and could have been raised on direct appeal. (Doc. #17, ex. OO at 16, 31-32, 38.) 

Specifically regarding the trial court’s ruling that prohibited defense counsel from informing the

jury that someone was coaching Shawn Brown during her testimony, the trial court also stated in

the post-conviction relief proceedings that Petitioner did not present sufficient evidence de hors

to defeat res judicata. (Id. ex. OO at 32.) The court of appeals concurred. See Hawkins, 1996

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24

WL 348024, at *5. Res judicata, an adequate and independent state ground sufficient to bar

federal habeas review, is firmly established and regularly followed. See Frazier, 343 F.3d at

805; Buell, 274 F.3d at 349. 

In his objections, Petitioner asserts that during the post-conviction relief proceedings the

trial court did not make the findings of fact and conclusions of law necessary to support a finding

of procedural default because the trial court merely signed a proposed entry submitted by the

State. The record supports a finding that the State submitted proposed findings of fact and

conclusions of law to the trial judge and that Hawkins moved to strike the filing, (doc. #70 ex. I

attachment A), but it is not clear that the trial court’s subsequent order is a verbatim copy of the

proposals by the State, (doc. #17 ex. OO). 

O.R.C. § 2953.21(G) requires a state court in post-conviction relief proceedings to issue

findings of fact and conclusions of law with an entry of judgment granting or denying relief. In

Ohio v. Mapson,1 Ohio St. 3d 217, 218, 428 N.E.2d 910 (1982), the Ohio Supreme Court held

that a trial court’s issuance of a judgment entry without the requisite findings of fact and

conclusions of law does not trigger the running of the time period for purposes of filing an

appeal. The purpose of the requirement is to provide a basis upon which the appellate court can

conduct a meaningful judicial review. See id. at 219. The Ohio Supreme Court in Mapson did

not, as Petitioner implies, address the validity of a trial court’s findings and conclusions if the

court merely has signed a proposed entry submitted by the prosecution. Additionally, the Ohio

First District Court of Appeals repeatedly has held that a trial court’s “adoption of the findings of

fact and conclusions of law submitted by the state does not, of itself, deprive a petitioner of

meaningful review of his petition for postconviction relief and does not constitute error in the

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7

 Petitioner had also argued in his Motion for Reconsideration to the Ohio Supreme Court

that his appellate counsel was ineffective for failing to raise these issues. (Doc. #17, ex. WW p.

6, 10, 12.) The Ohio Supreme Court denied the motion without discussion. (Id. ex. YY.)

25

absence of demonstrated prejudice.” Hawkins, 1996 WL 348024, at *2; see also Ohio v. Van

Hook, No. C-910505, 1992 WL 308350, at *4 (Ohio Ct. App. Oct. 21, 1992); Ohio v. Beuke,

No. C-900178, 1991 WL 155219, at *1 (Aug. 31, 1991). Hawkins has not established prejudice

here nor has he pointed to any state or federal decision wherein a res judicata finding was

successfully challenged on this basis. 

Next, Petitioner argues that the ineffectiveness of his appellate counsel for failing to raise

these issues on direct appeal establishes the cause and prejudice necessary to overcome the

procedural default. As discussed above, the Sixth Circuit has held that ineffective assistance of

appellate counsel can supply the cause, that together with prejudice, would excuse a procedural

default. See Richey, 395 F.3d at 679; McFarland, 356 F.3d at 699. Petitioner asserted in his

Ohio R. App. P. 26(B) Application to Reopen that his appellate counsel was deficient for not

raising on appeal the trial court’s error in denying the motion to compel as the second

assignment of error, the trial court’s error in failing to place on the record that Marlena Brown

was coaching her daughter, Shawn Brown, during Shawn Brown’s testimony as the nineteenth

assignment of error, and the trial court’s error in not permitting the jury to hear the taped

statements of Henry Brown’s prior statements as the twenty-ninth assignment of error. (Doc.

#17 ex. CCC p. 5, 8, 9.)7

 Hawkins did not file his Rule 26(B) Application until more than two

years after the court of appeals decision and the state courts denied the motion as untimely. 

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8

 Ohio v. Hawkins, Nos. C-900092, C-910017, slip op. (Ohio Ct. App. July 21, 1995)

aff’d 74 Ohio St. 3d 530, 660 N.E.2d 454 (1996).

26

(Doc. #17 ex. GGG).8

 However, because the “good cause” standard of Rule 26 has not been

applied with the regularity or consistency needed, it is not an adequate procedural grounds to bar

the claim here. See Richey, 395 F.3d at 680. Thus, the Court must consider on the merits

whether appellate counsel was constitutionally deficient under Strickland for failing to raise the

three subclaims on direct appeal. 

a. Browns’ Tapes and Testimony. In regards to the Henry Brown tapes, defense

counsel suggested that they be permitted to play the tapes of Brown’s prior interviews with the

police in their entirety during Brown’s cross-examination to help Brown recall what specific

statements he had made previously to the police that were false and inconsistent with his trial

testimony. (T.p. 1432-39.) The trial judge did not allow defense counsel to play the tapes, but

instead he permitted defense counsel to question Brown at length about the veracity of individual

statements Brown had made in his previous taped interviews based on the transcripts of those

interviews. (T.p. 1437-41, 1451-82.) Given the extensive cross-examination and the fact that

the State was forthright about the many prior inconsistent stories Brown had told the police, as

discussed in the Twenty-Seventh Ground for Relief, infra, the jury had ample evidence upon

which to question Brown’s credibility without hearing the tapes for themselves. The Court finds

that appellate counsel was not constitutionally ineffective for omitting this issue on appeal. 

Turning to the related issue of appellate counsel’s failure to raise on appeal that the trial

court should have granted the jury’s request to read the transcripts of or re-hear the testimony of

Henry Brown and Shawn Brown, Hawkins’ trial attorneys opposed the jury’s request. (T.p.

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2376-88, 2393.) Hawkins’ trial attorney stated that he thought to do so would “highlight[ ] the

testimony” and that the jurors should depend upon their recollection. (T.p. 2378, 2393-94.) 

Because Hawkins’ trial counsel opposed the re-reading of the testimonies, Hawkins’ appellate

counsel could not object on direct appeal that the trial judge should have permitted the re-reading

of the testimonies. The action of trial counsel waived that issue for purposes of the direct appeal. 

Moreover, Petitioner relies only on speculation when he suggests that the jury wanted to

re-hear the testimony of Shawn Brown and Henry Brown in order to further evaluate their

credibility. The jury did not state a reason for its request in its first note to the trial judge. (T.p.

2376-77.) In the second note, the jury asked to hear specifically about Henry Brown’s

“happenings in the early morning hours of June 12 from the time he left Tameka’s house until he

got home to his sister.” (T.p. 2393.) Given the damaging nature of Henry Brown’s testimony

against Hawkins in that time period, it was a reasonable strategy decision for Hawkins’ trial

counsel to avoid re-highlighting that testimony during jury deliberations. (T.p. 2378.) 

Accordingly, appellate counsel was not constitutionally ineffective for not raising the issue on

direct appeal. 

b. Motions. In the next subclaim, Petitioner submits that appellate counsel was

ineffective for not raising on direct appeal that the trial court erred by denying Hawkins’ motions

to compel discovery and for the police to turn over their entire investigative file. This subclaim

is cross-referenced with the Seventh Ground for Relief, infra, and will be discussed at length

therein.

c. Coaching of Testimony. The last subclaim involves the alleged coaching of Shawn

Brown during her testimony by her mother. During Shawn Brown’s cross-examination, defense

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28

counsel stopped his questioning and indicated to the judge that he heard what sounded like a

woman’s voice coming from the left rear corner of the courtroom attempting to coach Shawn

Brown’s testimony. (T.p. 1383-84.) Defense counsel requested that the judge ask the people in

the courtroom to identify themselves for the record and the judge initially agreed. (T.p. 1384.) 

However, instead of then asking the people to identify themselves, the judge asked Shawn

Brown if she heard anyone suggest an answer to her. (T.p. 1384.) Shawn Brown responded that

she had problems hearing and that she had not heard anyone suggest an answer to her. (T.p.

1384-85.) Defense counsel then proceeded with its cross-examination without interruption and

without again requesting to have the people in the courtroom identified. (T.p. 1385-87.) In

discovery obtained in this case, Doris Hull, Petitioner’s aunt, stated in an affidavit that she saw

Shawn Brown’s mother “mouthing answers” to Shawn Brown during her testimony in regards to

a gun. (Doc. #70, ex. A(38).) 

Petitioner contends that appellate counsel was ineffective for not raising on appeal that

the trial court erred by not having the people in the courtroom identify themselves. Petitioner

suggests that had Shawn Brown’s mother identified herself then defense counsel would have

called her as a witness. The problem with this argument is that even had Shawn Brown’s mother

identified herself, at the same time the other spectators in the gallery identified themselves, that

alone would not have established that she was the one who “coached” Shawn Brown. Defense

counsel stated clearly that it “[s]ounded like a lady’s voice but I could not tell you who it was.” 

(T.p. 1384.) Additionally, even if Shawn Brown’s mother had been identified as the speaker,

there is no evidence in the record as to how she would have testified. There is no evidence in the

record as to what she said in her attempt to “coach” Shawn Brown. Nor is there any evidence

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29

that she would have testified in a way that impeached the credibility of Shawn Brown or Henry

Brown, or in a way that would have been beneficial or prejudicial to Hawkins. As such,

appellate counsel was not ineffective for not raising the trial court’s alleged error on appeal.

Petitioner’s objections are overruled and the Twenty-Third Ground for Relief is denied.

TWENTY-SEVENTH GROUND FOR RELIEF

The trial court violated Hawkins’ rights to confront, present a defense, due process and

equal protection as guaranteed by the Sixth, Eighth and Fourteenth Amendments when the

trial court failed to disclose and seal Henry Brown’s juvenile records.

Henry Brown was a key witness for the prosecution at trial. Brown was originally

charged for his involvement in the offenses, but he testified at trial in exchange for immunity. 

Defense counsel repeatedly requested access to Brown’s juvenile records for the purpose of

impeaching his credibility and establishing his bias at trial. The trial court refused to disclose the

evidence. Instead, the trial court conducted an in camera review and determined that the

information contained in the juvenile records either was already known to defense counsel or

would not assist Hawkins in the preparation of his case. (T.p. 9.) 

This claim was addressed on the merits during Hawkins’ direct appeal and thus is not

procedurally defaulted. On direct appeal, the Ohio Supreme Court held that Hawkins’ due

process rights were not violated because he did not demonstrate any particular need for the

records, and thus he made no threshold showing that he was entitled to discover Brown’s

juvenile records. See Hawkins, 66 Ohio St. 3d at 346. The juvenile records later were disclosed

during these habeas proceedings. 

Two conflicting rights are at stake in regards to this issue. The first is the Sixth

Amendment right of a criminal defendant “to be confronted with the witnesses against him.” 

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9

 In Davis, the trial court had precluded the defendant from cross-examining the state’s

crucial witness about his juvenile conviction for burglary. See id. at 310-11. The defendant

sought to prove the witness was biased in favor of the police out of fear or concern that his

probation would be in jeopardy if he did not cooperate or that he might be a suspect for the crime

for which the defendant was charged. See id. at 311. The Supreme Court held that without

being able to mention the witness’ juvenile status, the defendant was not able to present a record

from which a jury might conclude that the witness was biased. See id. at 318. The Supreme

Court reversed the appeal court’s affirmation of the defendant’s conviction. See id. at 320-21. 

30

U.S. Const. Amend VI. The second is the right to privacy afforded by states to juveniles. The

right of a criminal defendant to confront a witness generally trumps a state’s interest in

protecting the privacy of juveniles. See Davis v. Alaska, 415 U.S. 308, 319 (1974).9

 However, a

defendant’s confrontation right is violated only when the defendant is completely barred from

exploring a relevant subject on cross-examination. See Dorsey v. Parke, 872 F.2d 163, 166-67

(6th Cir. 1989). The confrontation right is not necessarily violated when a trial judge only limits

the extent of cross-examination. See id. at 167. 

The Sixth Circuit has instructed that courts should conduct the following analysis when a

defendant’s right to cross-examination conflicts with a witness’s right to privacy: 

If a trial court has curtailed cross-examination from which a jury could have

assessed a witness's bias, prejudice or motive to testify, a court must take two

additional steps. First, a reviewing court must assess whether the jury had enough

information, despite the limits placed on otherwise permitted cross-examination,

to assess the defense theory of bias or improper motive. Second, if this is not the

case, and there is indeed a denial or significant diminution of cross-examination

that implicates the Confrontation Clause, the Court applies a balancing test,

weighing the violation against the competing interests at stake.

Boggs v. Collins, 226 F.3d 728, 739 (6th Cir. 2000) (citations omitted). For example, a court in

the Northern District of Ohio held that a defendant’s confrontation right was not violated when

the defendant could not inquire about witness’s prior history of juvenile delinquency because the

witness had testified as to his age, custody status, and the possibility of a leniency agreement

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31

with the prosecution. See Mann v. Gray, 622 F. Supp. 1225, 1228-1229 (N.D. Ohio 1985). The

information to which the witness had testified was enough to allow a “‘discriminating appraisal’

of his motives and bias.” Id. at 1229.

Thus, the issue here is whether Brown testified sufficiently at Hawkins’ criminal trial

about his criminal status and history that the jury was able to make a discriminating appraisal of

his motives and bias without the disclosure of his juvenile records. Petitioner contends that the

following information in the juvenile records would have been relevant to his defense: (1) seven

days after Brown’s arrest, the State dismissed an unrelated assault charge pending against him in

juvenile court; (2) Brown admitted to the police that he had been present at the shooting of two

individuals by a known accomplice during an aggravated robbery that was the result of a drug

transaction which Brown acknowledged he participated in; (3) Brown had been in a drug care

unit for three months in 1988; (4) Brown was convicted of robbery in 1988, petty theft in 1987,

disorderly conduct in 1985, and assault in 1985. Petitioner submits that defense counsel would

have used this information on cross-examination of Brown had it been available. (Doc. #212 at

Bates 4056, 4062-63, 4093, 4152-78.) Petitioner contends that this information would have

made the difference between conviction and acquittal. 

Applying the Boggs analysis, the Court finds that Petitioner’s rights under the

Confrontation Clause were not violated. The trial court did not completely curtail Hawkins’

right to cross-examine Brown as to his bias and motives. Jury members learned before Brown’s

testimony and on direct examination that the police originally charged Brown for involvement in

the murders and that Brown was being held in police custody at the time of the trial. (T.p. 848,

893, 933, 1273-74, 1426.) The jury also learned that the State had made an immunity deal with

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32

Brown that all charges against him would be dropped in exchange for his testimony about the

murders. (T.p. 1273-74, 1426.) The prosecution questioned Brown about the inconsistent prior

statements he gave to the police about events on the night of the murders. (T.p. 1423-26.) 

Defense counsel then cross-examined Brown as to his custody status and the immunity deal. 

(T.p. 1441-44, 1480.) Defense counsel also questioned Brown at length about his prior

inconsistent statements, including one statement in which he stated that he had been present in

the car at the time of the murders. (T.p. 1429-32, 1440-41, 1444-82.) Also, because Brown had

testified on direct examination about his use of drugs, defense counsel could have elicited

testimony about Brown’s involvement in the drug culture. (Id. p. 1421.) 

Therefore, the jury had information about Brown’s custody status, the charges against

him and the pending plea agreement, his prior inconsistent statements, and his history of drug

use. The Court agrees finds this case to be analogous to Mann and believes that the jury had

sufficient information to assess Brown’s credibility and motives. See Mann, 622 F. Supp. at

1228-1229; see also Boggs, 226 F.3d at 739. The Sixth Circuit has stated in a slightly different

context that “where undisclosed evidence merely furnishes an additional basis on which to

challenge a witness whose credibility has already been shown to be questionable or who is

subject to extensive attack by reason of other evidence, the undisclosed evidence may be

cumulative, and hence not material.” Williams, 380 F.3d at 977 (citation omitted). Petitioner’s

constitutional rights were not violated. The Court overrules Petitioner’s objections and the

Twenty-Seventh Ground for Relief is denied. 

ELEVENTH GROUND FOR RELIEF

The trial court’s denial of Hawkins’ Motion for Mistrial based on prosecutorial misconduct

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33

violated Hawkins’ rights under the Fifth, Sixth, Eighth and Fourteenth Amendments. 

In his Eleventh Ground for Relief, Petitioner alleges that his rights were violated when

the trial court failed to grant a mistrial based on multiple acts of alleged prosecutorial

misconduct. This claim was addressed on the merits in the state courts upon direct appeal and it

is amenable to merits review. See Hawkins, 1991 WL 270633, at *2-3 aff’d 66 Ohio St. 3d at

346-48. Petitioner objects as to Magistrate Judge Merz’s findings in regards to five specific

instances of alleged misconduct and each will be examined here.

“A claim of prosecutorial misconduct . . . will not justify habeas corpus relief unless the

prosecutor’s conduct was so egregious as to render the trial fundamentally unfair.” Roundtree v.

Adams, No. 02-1968, 65 Fed. Appx. 26, 2003 WL 1795720, at *2 (6th Cir. Mar. 28, 2003);

Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982). This determination is made by examining

the totality of the circumstances. See Angel, 682 F.2d at 608. The Sixth Circuit stated: 

In every case, we consider the degree to which the remarks complained of have a

tendency to mislead the jury and to prejudice the accused; whether they are

isolated or extensive; whether they were deliberately or accidentally placed before

the jury, and the strength of the competent proof to establish the guilt of the

accused.

Id.; see also Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (same). Relief is not to be

granted unless the misconduct “likely had a bearing on the outcome at trial in light of the

strength of the competent proof of guilt.” Byrd v. Collins, 209 F.3d 486, 529 (6th Cir. 2000)

(citation omitted). The Sixth Circuit has characterized as “demanding” its standard that “the

misconduct must be so pronounced and persistent that it permeates the entire atmosphere of the

trial.” See id. at 529-30 (internal quotation and citation omitted). Trial courts have discretion

whether to grant a mistrial. See United States v. Atisha, 804 F.2d 920, 926 (6th Cir. 1986). 

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a. Henry Brown’s Alibi. The first instance of alleged misconduct relates to the alibi of

Henry Brown. Petitioner contends that the prosecutors withheld the names of Tommicka

Washington, Anthony Washington, and Rhonda Calhoun. Petitioner contends that these

witnesses would have contradicted Brown’s alibi. During trial at the guilt phase and the

sentencing phase, Brown testified that on the night of the murders he was at the Washingtons’

house from 7:30 p.m. or 8:00 p.m. until 12:30 a.m. (T.p. 1400-02, 2589, 2593-97.) He also

testified at trial that he had lied when he previously had told the police he had been at a party in

Lexington Heights that night from 9:30 p.m. until 1:40 a.m. (T.p. 2575-2577.) 

Tommicka Washington, however, testified at the mitigation phase that Brown came to

her house at 8:00 p.m. and requested a ride to Lexington Heights. (T.p. 2609-10.) She testified

that her father, Anthony Washington, and Rhonda Calhoun had been at her house when Brown

came over. (T.p. 2614.) Tommicka Washington then testified that she took Brown to Lexington

Heights and he was not with her at the time of the murders. (T.p. 2613-17.) Anthony

Washington and Rhonda Calhoun also testified that Brown came to the Washingtons’ house for

only a brief time and then was taken by Tommicka Washington and Calhoun to Lexington

Heights, but each gave slightly different details about the events that night, such as the time that

Brown came to the house. (T.p. 2624-25; 2642-43.) 

Petitioner argues that because Brown was the State’s key witness, his credibility was

critical, and had the defense been able to present this impeachment evidence there is a reasonable

probability that the outcome of the trial would have been different. The state courts concluded

on direct appeal that there was not sufficient evidence in the record to support this argument. 

See Hawkins, 1991 WL 270633, at *3 aff’d 66 Ohio St. 3d at 347. Magistrate Judge Merz stated

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35

that the impeachment evidence was material in that it could contradict Brown’s testimony, but it

would “not show that Hawkins was not at the scene of the crime or a participant in the murders.” 

(Doc. #199 p. 31.) Even if Washington took Brown to Lexington Heights earlier in the evening

on the night of the murders, the impeachment evidence would not prove that Brown had not

returned to the scene of the murders before they took place. This impeachment evidence also

does not explain or contradict the crucial evidence that Hawkins’ bloody fingerprint was found

on a notebook in the victims’ car or that Hawkins’ pager number was found on a sheet of paper

in one of the victim’s pockets. The state courts’ conclusion that the claim lacked merit was not

objectively unreasonable. See 28 U.S.C. § 2254(D). 

b. Alleged Jailhouse Confession. The second alleged instance of misconduct involved

the State’s cross-examination of Hawkins with allegedly materially false facts about Hawkins’

jailhouse conversations with Keith Miree, a police informant. Petitioner contends that the

following exchange during the State’s cross-examination of him created an impression with the

jury that he had confessed to the murders to Miree: 

Q. Now, did you have an occasion to be – when you were locked up did you

have an occasion to have a conversation with an individual by the name of

Keith Miree?

A. Yes.

Q. And did you talk to him about this incident?

A. No, sir.

Q. You didn’t talk to him about this at all?

A. I talked to him about my indictment, about not getting an indictment.

Q. Did you have an occasion to tell him you, in fact, killed these boys, It

wasn’t about drugs, it was about money?

A. No, sir.

Q. You didn’t tell him that?

A. No, sir.

Q. Did you have an occasion to tell Keith Miree you should have killed that

young boy too?

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10 Miree had given a statement to the police that Hawkins had confessed to him. (T.p.

2676.) However, Miree was a risky witness for the State because defense counsel had brought to

the prosecutor’s attention during pretrial proceedings that Hawkins’ stepfather had a tape of a

conversation with a man believed to be Miree offering to take a bribe in exchange for favorable

testimony. (T.p. 447-51, 477-84.) The prosecutor admitted that at the time he asked the

questions on Hawkins’ cross-examination he was leaning towards not calling Miree as a rebuttal

witness, but stated that he did not make up his mind until after Hawkins had testified and the

judge had struck the Miree questions from the record. (T.p. 2677.) 

36

A. No, sir.

Q. Never told him that?

A. No, sir.

(T.p. 2185-86.) Defense counsel immediately objected to the questioning because the State did

not intend to call Miree to rebut Hawkins’ testimony. (T.p. 2186-91.)10 After a recess of

approximately 30 minutes, the trial court admonished the jury to disregard the questions asked

by the prosecutor and the answers given by Hawkins regarding the alleged conversation with

Miree. (T.p. 2197-98.) 

The state court of appeals held that the trial court’s admonishment preserved the fairness

of the proceedings without the need to call a mistrial. See Hawkins, 1991 WL 270633 at *3

aff’d 66 Ohio St. 3d at 347-48. Magistrate Judge Merz concurred. In his objections, Petitioner

cites to Bruton v. United States, 391 U.S. 123 (1968), for the proposition that improperly

admitted testimony sometimes will be so prejudicial that the jurors will not be capable of

ignoring it despite a curative instruction from the trial court. In Bruton, one defendant made a

confession that implicated his co-defendant, and the trial court instructed the jury to apply the

confession only against the confessing defendant and not against his co-defendant. See id. at

124-26. The Supreme Court stated in Bruton that “there are some contexts in which the risk that

the jury will not, or cannot, follow instructions is so great, and the consequences of failure so

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37

vital to the defendant, that the practical and human limitations of the jury system cannot be

ignored.” Id. at 135. Magistrate Judge Merz distinguished this case from Bruton on the grounds

that the instruction here to disregard the testimony did not require the jury to perform mental

gymnastics by permitting the testimony for one purpose but not for another. This Court agrees

with that analysis.

This Court also recognizes that the Supreme Court has instructed that “[a] confession is

like no other evidence” and “confessions have a profound impact on the jury, so much so that we

may justifiably doubt its ability to put them out of mind even if told to do so [by a trial court].” 

Arizona v. Fulminante, 499 U.S. 279, 296 (1991) (quoting, in part, Bruton, 391 U.S. at 139-140). 

Hawkins contends here and in the related Third Ground for Relief, infra, that his Sixth

Amendment right to confrontation was violated because he was denied the opportunity to crossexamine Miree about the alleged confession when the State did not call Miree as a witness. 

Violations of the Confrontation Clause of the Sixth Amendment are subject to harmless error

analysis. See Jordan v. Hurley, 397 F.3d 360, 363 (2005). “Constitutional error is cause for

federal habeas relief only if it has a substantial and injurious effect or influence in determining

the jury’s verdict.” Hill v. Hofbauer, 337 F.3d 706, 718 (6th Cir. 2003) (internal quotation and

citation omitted). Relevant factors to consider in this regard are the importance of the witness’s

testimony, the presence or absence of corroborating evidence, and the overall strength of the

State’s case. See id. 

If Miree, in fact, had testified that Hawkins made a jailhouse confession to him, that

would have been important testimony boosting the State’s case. Here, the prosecution implied in

its cross-examination that such a confession occurred, but the significance of the questioning was

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blunted immediately by the trial judge’s instructions to disregard the questions about Miree. 

Also, the State did not call Miree as a witness or present any other corroborating evidence about

the confession. The absence of corroborating evidence might have caused the jury to question

whether the confession had occurred. In addition, the overall case establishing Hawkins’ guilt

apart from any alleged confession is strong. That evidence includes the bloody fingerprint found

in the car, Henry Brown’s eyewitness testimony, two corroborating witnesses who testified to

hearing gun shots at the approximate time and place that Brown stated he witnessed the murders,

one witness who saw a man fitting Hawkins’ description driving a silver-gray sedan shortly after

the witness heard gun shots, testimony concerning the call to a pager that the victims made

before their deaths, and finally the fact that Hawkins’ pager number was found in the pocket of

one victim. The Court is convinced that the Confrontation Clause violation regarding Miree, if

any, was harmless. The Court holds that the state court’s decision that a mistrial was not

necessary under the circumstances is not contrary to or an unreasonable application of clearly

established federal law. 

c. Mischaracterization of Testimony and Personal Opinion. The next subclaim

involves the State’s misconduct by improperly mischaracterizing witness testimony and injecting

personal opinions. In the first instance, the prosecutor objected on the record that the testimony

of defense witness Deborah Matthew that the police threatened to take her child away from her

unless she told the truth was “incredible.” (T.p. 1946.) The trial judge immediately instructed

the jury to disregard the observation or comment made by the prosecutor. (Id.) In the second

instance, the prosecutor objected on the record that the testimony of Judy Hogan, Hawkins’

mother, that the police told Hawkins that evidence could be planted on him, was “ridiculous.” 

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(T.p. 2051.) The trial court overruled the prosecutor’s objection to the extent that the comment

“This is ridiculous” was an objection, and admonished the prosecutor to let the witness testify

and offer proper objections if he had any. (Id.) The prosecutor did not present evidence to refute

either of the defense witnesses’ testimony. 

On direct appeal, the Ohio Supreme Court stated that the prosecutor’s remarks were

improper, but that they also were isolated incidents and that no prejudicial error resulted

therefrom. See Hawkins, 66 Ohio St. 3d at 348. Magistrate Judge Merz concluded that the

remarks were isolated, not flagrant, and did not warrant a mistrial. The Court agrees that the

remarks were isolated, but notes that the second comment appears to be deliberate since the

prosecutor had already been admonished to avoid such characterizations of the witnesses’

testimony. See Pritchett, 117 F.3d at 964; Angel, 682 F.2d at 608. Nonetheless, the comments

standing alone were not likely to prejudice the defendant or mislead the jury, see ids., because

the trial court immediately admonished the jury to disregard the first comment, and rebuked the

prosecutor for the second, (T.p. 1946, 2051). Also, the competent proof establishing Petitioner’s

guilt was strong as set forth above. See Pritchett, 117 F.3d at 964; Angel, 682 F.2d at 608. The

comments were not so pronounced as to have permeated the entire atmosphere of the trial. See

Byrd, 209 F.3d at 529. As such, this Court agrees with Magistrate Judge Merz and the Ohio

Supreme Court that the prosecutor’s conduct did not warrant a mistrial. 

Next, Petitioner contends that he should have been granted a mistrial because the

prosecutor mischaracterized the testimony of Kenneth Boehmler during his closing argument and

implied that Boehmler was a second eyewitness to the crime. Boehmler had testified that he

heard three sharp noises around 12:30 a.m. on the night of the murders. (T.p. 1503.) Shortly

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40

after he heard the noises, he saw a man get out of a parked silverish-gray colored car, walk up

the sidewalk, walk back to the car and then drive away. (T.p. 1499-1505.) He described the man

as being a black man, about the age of twenty, about 5'9" or 5'10", with slender but muscular

build, and wearing a dark muscle shirt. (T.p. 1505-06, 1509.) He also testified that he could not

see the man’s face, and he could not identify Hawkins as the man he saw that night. (Id.)

During closing argument, the prosecutor stated that Boehmler “describes the man

involved in the killing and puts defendant in that car.” (T.p. 2308.) That is erroneous to the

extent that Boehmler never testified that he saw Hawkins in the car; rather he stated that the man

he had described, whom he could not identify as Hawkins, had been in the car. (T.p. 1505-06,

1509.) However, the prosecutor continued by again referring to the description of the man that

Boehmler had seen and stated that “if that description didn’t fit the defendant I never heard a

better one.” (T.p. 2308.) Also, the trial judge admonished the jury in his closing instructions

that the closing arguments of counsel were not evidence. (T.p. 2318.) 

 The Ohio Supreme Court held on direct appeal that the prosecutor’s comments were not

“truly questionable.” Hawkins, 66 Ohio St. 3d at 348. Magistrate Judge Merz also found this

portion of the claim to be without merit. This Court agrees. Taken in context, the prosecutor

was not stating that Boehmler actually saw Hawkins in the car, but rather that he saw a man

whose description matched that of Hawkins in the car. This was consistent with Boehmler’s

testimony during the trial. Moreover, the jury was admonished not to accept the prosecutor’s

closing argument as evidence. The Ohio Supreme Court decision that the prosecutor’s comment

about Boehlmer standing alone did not render the trial fundamentally unfair, and is not contrary

to or an unreasonable application of clearly established federal law.

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The final alleged instance of prosecutorial misconduct is the prosecutor’s insinuation at

closing argument about Hawkins’ failure to call an expert witness to refute the State’s evidence

about the bloody fingerprint found on the notebook in the victims’ car. The prosecutor asked the

jury to look at the two fingerprints while deliberating and stated that “fingerprints don’t lie and

these two pieces of evidence are unchallenged by the defense.” (T.p. 2313.) Defense counsel

immediately objected and the trial court sustained the objection and admonished the jury to

disregard the prosecutor’s statement. (T.p. 2313-14.) The Ohio Supreme Court characterized

the prosecutor’s statement as “truly questionable,” but found that the trial court had acted

properly in striking the statement. See Hawkins, 66 Ohio St. 3d at 348. Magistrate Judge Merz

came to the same conclusion. 

In his objections, Petitioner argues that the prosecutor’s statement impermissibly shifted

the burden of proof onto him in violation of his due process right to a fair trial. This Court does

not agree. The remark was not flagrant because it was isolated, not deliberate, and in context

would not have tended to mislead the jury or prejudice Hawkins. See United States v. Carroll,

26 F.3d 1380, 1385, 1387 (6th Cir. 1994). The fact that the trial court gave an appropriate

curative instruction is relevant. Also, shortly after the prosecutor’s statement in closing

arguments, the trial court reiterated that the defendant is presumed innocent and that the State

had the burden to produce evidence of guilt beyond a reasonable doubt. (T.p. 2316-17.) This

isolated comment cannot be said to have permeated the entire atmosphere of the trial. See Byrd,

682 F.2d at 509. 

Accordingly, Petitioner’s objections are overruled and the Eleventh Ground for Relief is

denied.

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42

FOURTEENTH GROUND FOR RELIEF

The trial court erred in failing to grant Hawkins’ new trial motion in violation of the Fifth,

Sixth, Eighth and Fourteenth Amendments. 

Petitioner contends that the trial court erred by not granting him a new trial in light of

newly discovered evidence. Petitioner raised this issue on direct appeal. See Hawkins, 1991

WL 270633, at*3-4 aff’d 66 Ohio St. 3d at 349. The newly discovered evidence was a .25

caliber gun with a pearl handle, the same caliber of gun that was used to kill Richard and

Marteen. The weapon that was used to kill Richard and Marteen had not been found at the time

of Hawkins’ trial or thereafter. Petitioner presented the affidavit of two individuals who stated

that in May 1990 Henry Brown, the State’s key eyewitness, had given them a .25 caliber gun

with a pearl handle to hide, but that they turned the gun over to Hawkins’ appellate counsel. 

(Doc. #17 ex. E.) At trial, Brown had testified that he did not own a .25 caliber gun and that he

had seen Hawkins carry a .25 caliber gun with a pearl handle before. (T.p. 1418, 1456.)

The newly discovered gun was analyzed by a ballistics expert. The expert stated that the

gun was no longer operable due to the passage of time, the condition of the gun, and the lack of a

magazine. (Doc. #17 ex. E.) The expert substituted an intact striker so the gun could be fired

and testing performed. (Id.) The expert tried to perform a comparison, but no identification was

possible. (Id.) As such, it is impossible to confirm or refute whether the newly-discovered gun

was the missing murder weapon.

A trial court has discretion to grant to or deny a motion for new trial. See United States

v. Barlow, 693 F.2d 954, 966 (6th Cir. 1982); Ohio v. Schiebel, 55 Ohio St. 3d 71, 76, 564

N.E.2d 54 (1990). A new trial should be granted on the basis of newly discovered evidence only

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43

if it is likely that the presentation of the new evidence would result in an acquittal. See United

States v. Jones, 399 F.3d 640, 648 (6th Cir. 2005); Barlow, 693 F.2d at 966; Ohio v. Petro, 148

Ohio St. 505, 508, 76 N.E.2d 370 (1975). Evidence that is to be used merely for impeachment or

that is cumulative in nature generally does not provide a sufficient basis to grant a new trial. See

ids. The strength of the case against the defendant obviously is relevant to a consideration of

whether the new evidence would result in an acquittal. See e.g., Jones, 399 F.3d at 648 (no new

trial where evidence of guilt is overwhelming). 

The Ohio Supreme Court held that the new evidence that Brown possessed an inoperable

firearm five months after trial and almost a year after the murders did not create a strong

probability that the result of the outcome of a second trial would have been different. See

Hawkins, 66 Ohio St. 3d at 350. It also found that Brown’s possession of the gun at the later

date did not necessarily contradict his trial testimony that he did not own a .25 caliber gun at the

time of the trial. See id. Finally, it stated that even if the newly discovered weapon was the

murder weapon and even if Brown had possession of the murder weapon in May 1990, the new

evidence does not explain Hawkins’ bloody fingerprint on the notebook in the car nor is it

inconsistent with Hawkins’ guilt. See id. Magistrate Judge Merz found that the new evidence

established at most that either before or after trial Henry Brown had possession of a .25 caliber

gun. Magistrate Judge Merz stated that the gun’s primary purpose would be to impeach Brown,

not prove it was the actual murder weapon, and thus he held that a new trial was not warranted. 

This Court agrees with the reasoning of the Ohio Supreme Court and Magistrate Judge Merz and

holds that the Ohio Supreme Court decision is not contrary to or an unreasonable application of

clearly established federal law.

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44

NINETEENTH GROUND FOR RELIEF

The trial court and court of appeals erred in failing to merge the aggravated murder

counts and thus skewed the mitigation weighing process in violation of the Fifth, Sixth,

Eighth and Fourteenth Amendments. 

Petitioner did not raise this claim on direct appeal or during the post-conviction relief

proceedings. Nonetheless, the Ohio Supreme Court addressed the issue sua sponte on direct

appeal. See Hawkins, 66 Ohio St. 3d at 346. This Court thus will address the issue on the merits

as well. 

For the murders of each of Richard and Marteen, Hawkins was charged and convicted of

two counts of murder: one count charging the offense was committed with prior calculation and

design and one count charging felony murder premised upon aggravated robbery. See id. at 341-

42. Thus, Hawkins was convicted of four counts of murder for killing two people. The Ohio

Supreme Court stated that “we have held that where a defendant is convicted on two aggravated

murder counts involving a single killing, the trial court may sentence on only one count.” Id. at

346. To remedy the problem, the Ohio Supreme Court “declare[d] a merger of the two separate

convictions for each killing such that a single death sentence remains for each of the two

homicides.” Id. After merging the separate convictions for each homicide, the Ohio Supreme

Court “independently review[ed] the appellant’s death sentences for appropriateness and

proportionality.” Id. at 351. The court held that two aggravating circumstances were “clearly

shown on the record” and that the one mitigating factor, defendant’s age of twenty-one at the

time of the murders, was entitled to “very little[] weight.” Id. It concluded that the aggravating

circumstances for each killing outweighed the mitigating factor beyond a reasonable doubt and

also noted that it had upheld the death penalty in previous cases of multiple murders. See id. 

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45

In his objections, Petitioner contends that the failure of the trial court to merge the

aggravated murder counts skewed the jury’s mitigation weighing process in violation of

Hawkins’ constitutional rights. Trial and appellate courts cannot impose a sentence of death

under Ohio law if the jury votes for life. See O.R.C. §2929.03. However, if the jury

recommends and the trial court imposes a sentence of death, then the appeals court and the Ohio

Supreme Court are to review a sentence of death and “independently weigh all of the facts and

other evidence disclosed in the record in the case and consider the offense and the offender to

determine whether the aggravating circumstances the offender was found guilty of committing

outweigh the mitigating factors in the case, and whether the sentence of death is appropriate.” 

O.R.C. § 2929.05(A).

In Clemons v. Mississippi, 494 U.S. 738 (1990), the Supreme Court upheld a death

sentence where the appeals court had invalidated one or more of the aggravating circumstances

found by the jury, but then itself concluded that the remaining aggravating circumstances

outweighed the mitigating evidence. See id. at 745-46. The Supreme Court rejected the

petitioner’s argument that his due process rights were violated because Mississippi statutory law

provides only juries with the authority to impose death sentences. See id. at 746. The Supreme

Court instructed that if a reviewing court decides to reweigh the aggravating and mitigating

circumstances, the court must “give each defendant an individualized and reliable sentencing

determination based on the defendant’s circumstances, his background, and the crime.” Id. at

749.

 Following Clemons, the Sixth Circuit has considered and rejected an argument similar to

the one made by Petitioner here. See Cooey v. Coyle, 289 F.2d 882 (6th Cir. 2002). In Cooey,

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11 In light of the binding Sixth Circuit precedent in Cooey, the Court is not persuaded by

Petitioner’s citation to a contrary Eighth Circuit precedent in Rust v. Hopkins, 984 F.2d 1486

(8th Cir. 1993). 

46

the petitioner argued that the Ohio Supreme Court had erred by independently reweighing the

aggravating circumstances and mitigating factors leading to his death sentence. See id. at 888. 

The Ohio Supreme Court had determined that the three-judge panel trial court had made several

errors in its weighing process, including a failure to merge the murder specifications. See id. at

889-90. The Ohio Supreme Court further had found, however, that none of the trial court’s

errors were plain error. It then independently had determined that the aggravating circumstances

outweighed the mitigating factors after looking at the petitioner’s physical and mental history

and his background. See id. at 890-91. The Sixth Circuit held that the Ohio Supreme Court was

permitted to reweigh under Clemons and that it properly considered the Clemons factors during

its reweighing analysis. See id. at 891-92. Accordingly, the Sixth Circuit held that the state

decision was not contrary to or an unreasonable application of federal law, nor was it an

unreasonable determination of the facts in light of the evidence provided in state court. See id.;

cf Fox v. Coyle, 271 F.3d 658, 667 (6th Cir. 2001) (stating that no constitutional claim is stated

when the state’s highest court independently reweighs aggravating and mitigating circumstances

without reference to the extra-statutory factor relied on by a trial court).11 

Under these precedents, the Ohio Supreme Court’s decision here to reweigh and its

analysis in reweighing Hawkins’ aggravating circumstances and mitigating factors after merging

the aggravated murder counts likewise do not provide a basis to grant the writ. Petitioner’s

objections are overruled and the Nineteenth Ground for Relief is denied.

TWENTY-SIXTH GROUND FOR RELIEF

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47

The preparation and consideration of the presentence investigation report (which

contained victim impact statements and other statements giving opinions on Hawkins and

requesting the maximum penalty for him) violated Hawkins’ rights under the Fifth, Sixth,

Eighth and Fourteenth Amendments to the United States Constitution.

In this claim, Petitioner asserts that the preparation of a pretrial report that he had not

requested, and its consideration by the trial court, were unconstitutional. Magistrate Judge Merz

held that the claim was procedurally defaulted, and that finding is not challenged by Petitioner in

his objections. Magistrate Judge Merz also held, however, that Hawkins put forth a sufficient

cause for his failure to raise the issue on direct appeal or in the post-conviction relief

proceedings such that the procedural default might be excused if prejudice is also shown. See

Coleman, 501 U.S. at 749 (setting forth cause and prejudice standard). In brief, Hawkins was

unable to determine the existence or contents of the presentence report in a timely fashion

despite efforts to do so. Thus, the issue is whether Petitioner was actually prejudiced by the

presentence report. 

The Ohio Revised Code states that a presentence investigation is not to be made in a

capital case except upon the request of the defendant. See O.R.C. § 2929.03(D). The parties

have stipulated that the trial judge requested a presentence report without Hawkins’ knowledge.

After conducting an evidentiary hearing on this issue, Magistrate Judge Merz found a

“reasonable probability that the trial judge gave at least some weight to the contents of the

presentence investigation report in imposing a death sentence on Hawkins.” (Doc. #199 p. 46.) 

Magistrate Judge Merz concluded that Petitioner’s due process rights were violated by the trial

court because Petitioner was denied the opportunity to respond to or defend against the

allegations in the report. See Gardner v. Florida, 430 U.S. 349 (1977). This finding is also not

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12 Petitioner’s counsel suggested at the oral argument held on June 29, 2005 that

Magistrate Judge Merz only assumed that the court of appeals and the Ohio Supreme Court did

not rely on the presentence investigation report in conducting their sentencing reviews. Counsel

did not provide any evidentiary basis for concluding that the reviewing courts had possession of,

much less relied upon, the presentence investigation report. Moreover, the opinion of the Ohio

Supreme Court provides no basis to believe that the court took the presentence investigation

report into consideration. See Hawkins, 66 Ohio St. 3d at 351. 

48

challenged by either party in their objections. 

However, Magistrate Judge Merz also noted that the jury had recommended death

without access to the report. More importantly, he noted that neither the court of appeals nor the

Ohio Supreme Court had access to the presentence report when they did their independent

reweighing of the aggravating circumstances and mitigating factors. See Hawkins, 66 Ohio St.

3d at 351; Hawkins, 1991 WL 270633, at *7-8.12 The Ohio Supreme Court identified the two

statutory aggravating factors and stated that the only mitigating factor in the record was

Hawkins’ age of twenty-one at the time he committed the killings. See Hawkins, 66 Ohio St. 3d

at 351. The reweighing of the aggravating circumstances and mitigating factors by the court of

appeals and the Ohio Supreme Court cured any constitutional error by the trial court. See Hill v.

Mitchell, 400 F.3d 308, 335 (6th Cir. 2005) (“Even if a state-law error had occurred, moreover,

the Ohio Supreme Court’s reweighing of the aggravating and mitigating factors would cure the

error . . . .”). Petitioner cannot prove the prejudice necessary to excuse the procedural default. 

Petitioner’s objections are overruled and the Twenty-Sixth Ground for Relief is denied.

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13 As to the interrelated subclaim that the prosecutor’s misconduct induced Hawkins’ trial

attorney to render ineffective assistance by not cross-examining Miree, the Court holds that

Hawkins suffered no prejudice even if counsel was deficient in not cross-examining Miree. 

49

 C. PROSECUTORIAL MISCONDUCT–WITNESSES

THIRD GROUND FOR RELIEF

The cumulative effect of the State’s misconduct regarding Keith Miree violated Petitioner

Hawkins’ rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United

States Constitution and prejudiced him.

Petitioner asserts several related subclaims and objections in regards to the Third Ground

for Relief. One of Petitioner’s specific subclaims is that the State’s misconduct in crossexamining Hawkins at trial about his alleged confession to Keith Miree, whom the State did not

call as a witness, misled the jury, prejudiced Hawkins, and denied Hawkins his right to confront

witnesses in violation of the Sixth Amendment. This subclaim was raised on direct appeal. The

Ohio Supreme Court held it was “arguable” whether the prosecutor committed misconduct, but

stated that the trial court took appropriate steps to ensure that no prejudice occurred and that

Hawkins was not denied his right to a fair trial. See Hawkins, 66 Ohio St. 3d at 348. This Court

already has held that with regard to the Eleventh Ground for Relief, supra, any violation of

Hawkins’ Confrontation Clause right was harmless and the state court’s decision that a mistrial

was not necessary under the circumstances is not contrary to or an unreasonable application of

clearly established federal law. No further analysis is necessary here.13

In the next subclaim, Petitioner asserts that the use of Miree as an undercover informant

violated his rights. The issue is whether the State wrongfully elicited the confession after

Hawkins’ Sixth Amendment right to counsel had attached. Resolving this issue may be a mere

intellectual exercise because Miree did not testify at trial and the implication of an alleged

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50

confession Hawkins made to Miree was stricken from the record. Nonetheless, the Court

examines the issue on the merits.

In Kuhlmann v. Wilson, 477 U.S. 436 (1986), the Supreme Court analyzed whether the

Sixth Amendment was violated by the admission into evidence of a defendant’s confession to a

jailhouse informant who was placed in close proximity to the defendant but made no effort to

stimulate conversation about the crimes charged. See id. at 456. The Supreme Court concluded:

[A] defendant does not make out a violation of [the Sixth Amendment] simply by

showing that an informant, either through prior arrangement or voluntarily,

reported his incriminating statements to the police. Rather, the defendant must

demonstrate that the police and their informant took some action, beyond merely

listening, that was designed deliberately to elicit incriminating remarks.

Id. at 459. 

Hawkins puts forth the following evidence to support this subclaim: Sargeant Thomas

Boeing of the Hamilton County Sheriff’s Office told Miree that he wanted Miree to help the

police; Sgt. Boeing told Miree he could help with Miree’s robbery charge; Sgt. Boeing asked

Miree how much bond he could afford; Sgt. Boeing told Miree’s trial judge that he believed

Miree was not involved in the robbery and that he was helping out in a police murder

investigation; and the judge lowered Miree’s bond. (Boeing depo. p. 74-78 & ex. 4.) Also,

former Detective Al Schaefer, now Chief Schaefer, of the Mt. Healthy police department

testified that he was told that Miree had information from Hawkins concerning where Hawkins

hid the gun and that it was arranged for Miree to get out of jail for that testimony. (Schaefer

depo. p. 60.) 

These facts may show that Miree was acting as an agent of the police. However, postKuhlmann, Hawkins must demonstrate more to prove a violation of his Sixth Amendment rights. 

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14 It is this factor that distinguishes Kuhlmann and the instant case from the precedent

cited by Petitioner, United States v. Henry, 447 U.S. 264 (1980). In Henry, the Supreme Court

held that the Sixth Amendment was violated where an informant was paid and acting under

instructions from the government, the informant was ostensibly no more than a fellow inmate,

and the defendant was in custody and under indictment at the time of his “interrogation” by the

informant. Id. at 270. The Supreme Court explicitly noted in Henry, however, that it was not

addressing the situation where “where an informant is placed in close proximity but makes no

effort to stimulate conversations about the crime charged.” Id. at 272 n.9; see also Kuhlmann,

477 U.S. at 456.

51

Hawkins must demonstrate, but points to no facts in the record to demonstrate, that Miree took

steps beyond mere listening to deliberately elicit incriminating remarks from Hawkins.14 In the

absence of such evidence, the Court must conclude that Hawkins’ Sixth Amendment rights were

not violated by the government’s use of Miree as an informant. 

Petitioner also submits that the State failed to disclose that it had made a promise of

leniency to Miree. Again, because the questions and answers from Hawkins’ cross-examination

regarding Miree were stricken and Miree was not called to testify as a witness, evidence of a

promise of leniency to Miree is neither exculpatory nor impeaching. This subclaim fails. 

In his final subclaim, Petitioner argues that the State failed to disclose to defense counsel

that Hawkins denied making the alleged confession to Miree. The prosecution must disclose

material evidence that is favorable to the accused, either because it is impeaching or exculpatory. 

See Strickler v. Greene, 527 U.S. 263, 280-82 (1999); Brady v. Maryland, 373 U.S. 83, 87

(1963). Magistrate Judge Merz held there was no Brady violation because the evidence,

Hawkins’ denial, was available to the defense by another source, Hawkins himself. This Court

agrees. See Spirko v. Mitchell, 368 F.3d 603, 610 (6th Cir. 2004) cert. denied 125 S.Ct. 1699

(2005); Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998). 

For all of these reasons, Petitioner’s objections are overruled and the Third Ground for

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15 On direct appeal, Hawkins argued that Brown’s juvenile records should have been

released and that the records should have been sealed and made part of the records for appeal. 

See Hawkins, 66 Ohio St. 3d at 346. 

52

Relief is denied. 

TWENTY-FIFTH GROUND FOR RELIEF

The State’s misconduct re: Henry Brown, the State’s chief witness, violated Hawkins’

rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States

Constitution.

Petitioner did not raise all subparts of this claim at trial nor in the post-conviction relief

proceedings.15 In his post-conviction relief proceedings, Petitioner alleged that the testimony of

Henry Brown at trial was perjured. See Hawkins, 1996 WL 348024, at *4. The court of appeals

held that Hawkins’ evidence on this issue did not raise a genuine issue of material fact and that

“Brown himself has not wavered in his testimony.” Id. Magistrate Judge Merz addressed all

portions of this claim on the merits and this Court will do the same.

In considering this Ground for Relief, the Court will address each of Petitioner’s

subclaims and objections in order. Petitioner asserts that the State violated his rights by not

disclosing the full terms of Henry Brown’s immunity agreement, by not disclosing that Brown

told Melba Marsh, a former prosecutor and now a Hamilton County, Ohio judge, a different

version of events than the one he had told the police, and by not disclosing that Brown had failed

two polygraph tests administered by the State. 

a. The Immunity Agreement. As to the first issue, Magistrate Judge Merz found no

violation of Petitioner’s rights on the basis of the numerous instances in the trial proceedings

transcript demonstrating that defense counsel, the jury, and the trial court were informed that

Brown was testifying under a grant of immunity. (T.p. 1274, 1426, 1441-47.) Also, the

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53

immunity agreement was entered as a joint exhibit at trial. (T.p. joint ex. 1.) The immunity

agreement states that in exchange for Brown’s truthful testimony, “the State of Ohio agrees to

dismiss any and all charges pending against Henry Brown, Jr., and further agrees to forego any

right to proceed against Henry Brown, Jr. on any charge relating to this incident.” (Evid.

Hearing PX 13.) Thus, the immunity agreement implies that there may have been charges

pending against Brown that were unrelated to the murders of Marteen and Richard. Hawkins’

defense counsel did not know the nature of the other charges because Brown’s juvenile records

were sealed. The Court in the Twenty-Seventh Ground for Relief, supra, held that Hawkins’

confrontation right was not violated by the failure to disclose Brown’s juvenile records because

defense counsel was able to sufficiently cross-examine Brown regarding his credibility and bias

without the records. 

Likewise, here, the Court holds that the nondisclosure of the fact that Brown received

immunity on a juvenile charge of assault, a crime unrelated to the murders of Marteen and

Richard, did not violate Petitioner’s due process rights. Even if the nondisclosure of this fact

implicated Brady concerns, the nondisclosure does not rise to the level of a constitutional

violation:

[S]uppression of evidence amounts to a constitutional violation only if it deprives

the defendant of a fair trial. Consistent with “our overriding concern with the

justice of the finding of guilt,” a constitutional error occurs, and the conviction

must be reversed, only if the evidence is material in the sense that its suppression

undermines confidence in the outcome of the trial.

United States v. Bagley, 473 U.S. 667, 678 (1985) (citation omitted); see also United States v.

Jones, 399 F.3d 640, 648 (6th Cir. 2005). Here, both the prosecutor and defense counsel were

permitted to question Brown about his custody status and the fact that charges against him would

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54

be dropped in exchange for his truthful testimony. (T.p. 848, 893, 933, 970, 1274, 1441-44,

1480.) The fact that the jury was not told about the nature of an assault charge which also was

dropped as part of the plea agreement does not undermine confidence in the result of the trial. 

As to the nondisclosure of then-prosecutor Marsh’s interviews with Brown, the Court

addresses that subclaim in the related Seventh Ground for Relief, infra. 

b. Polygraph Tests. The fact that the State may have not disclosed the fact that Brown

failed polygraph tests does not amount to a constitutional violation under Bagley. It was wellestablished that Brown told several inconsistent stories before trial. One might expect that

Brown would fail a polygraph test knowing that he told inconsistent stories. The State was upfront with the jury during voir dire about Brown’s prior inconsistent statements and both the

State and the defense questioned Brown about his previous inconsistent statements. (T.p. 178,

215, 334, 516, 1423-26, 1429-32, 1440-41, 1444-82.) The Sixth Circuit has held that the failure

to disclose a witness’s polygraph report was not reversible error when it did not exculpate the

defendant and when the defense was able to cross-examine the witness about prior inconsistent

statements through other means. See Hutchinson v. Bell, 303 F.3d 720, 746 (6th Cir. 2002). 

Additionally, polygraph results are admissible under Ohio law for purposes of impeachment or

corroboration only upon stipulation of the parties and with the discretionary consent of the trial

judge. See Ohio v. Souel, 53 Ohio St.2d 123, 132-33, 372 N.E.2d 1318 (1978). Petitioner has

not established a likelihood that the prosecutor or the trial court would have consented to the

admission of the results.

c. Prosecutorial Vouching. In his next subclaim, Petitioner alleges that the prosecutor

improperly vouched for the credibility of Henry Brown on four specific instances during voir

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55

dire. (T.p. 178, 215, 335, 516-18.) “Improper vouching occurs when a prosecutor supports the

credibility of a witness by indicating a personal belief in the witness’s credibility thereby placing

the prestige of the office of the [county prosecutor] behind that witness.” United States v.

Francis, 170 F.3d 546, 550 (6th Cir. 1999). Prosecutorial vouching poses two dangers: (1) the

comments can imply that the prosecutor knows of information not presented to the jury that

supports the charges against the defendant and (2) the prosecutor’s opinion carries the

imprimatur of the government and can induce the jury to trust the government’s opinion rather

than its own judgment. See United States v. Young, 470 U.S. 1, 18 (1985). Claims of improper

vouching are analyzed under the standards for prosecutorial misconduct discussed at length in

regards to the Eleventh Ground for Relief, supra. 

The Court has examined each of the four instances of alleged misconduct. At trial

proceeding transcript page 178, the prosecutor merely stated that Brown had lied in the past and

asked the venire member if the venire member could make a determination as to whether to

believe Brown. At page 215, the prosecutor stated that Brown had told two earlier stories and

would tell a third story during his testimony and asked if the venire member could judge whether

or not Brown was being truthful. Neither of these instances constitutes improper vouching. At

page 335, the prosecutor stated that he did not think that Brown would perjure testimony, but

stated that it was the venire member’s decision whether or not to believe Brown. Likewise at

page 516-18, the prosecutor stated that Brown had told different accounts previously, but that he

believed “[Brown’s] gonna come in I believe and tell what really happened, okay?” These latter

two statements arguably constitute improper vouching, but defense counsel did not lodge a

contemporaneous objection to either. Under Ohio law, defense counsel’s failure to object in a

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56

timely manner to the alleged instances of prosecutorial misconduct results in a waiver of all but

plain error. See Ohio v. Lott, 51 Ohio St. 3d 160, 167, 555 N.E.2d 293 (1990).

This Court finds that these arguable instances of vouching were not flagrant under the

Sixth Circuit standard, because they were isolated, not deliberate, and not likely to prejudice the

defendant or mislead the jury. See Carroll, 26 F.3d at 1388. The comments were not deliberate

when taken in context because the prosecutor stressed repeatedly that Brown had lied before and

that the jury would have to use its judgment to decide whether to believe him. Moreover, the

strength of the total evidence against Hawkins apart from these statements was strong. See id.

In sum, the prosecutor’s statements were not so egregious to have constituted plain error or

rendered the entire trial unfair. See Roundtree, 2003 WL 1795720, at *2; Angel, 682 F.2d at

608.

d. Perjury. In another subclaim, Petitioner argues that the prosecutors suborned perjury

by not correcting the false impression of the facts created by Brown’s false trial testimony. 

When a state allows false evidence to go uncorrected, a conviction obtained through the use of

that false evidence violates the Fourteenth Amendment and cannot stand. See Napue v. Illinois,

360 U.S. 264, 269 (1959). Factual predicates for this subclaim include that the testimony or

evidence is false, the prosecution knew it was false, and the false evidence or testimony was

material. See Workman v. Bell, 178 F.3d 759, 766 (6th Cir. 1998). The evidence in this record

does not prove either that Brown’s trial testimony was false or that the State knew it was false. 

Petitioner points only to the facts that Brown told different stories to different people at different

times, and that the prosecutor stated during voir dire that he could not be sure what Brown’s

testimony at trial would be. These facts do not establish that Brown’s trial testimony was untrue

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16 The Court disagrees with Petitioner’s assertion that Brown testified at the evidentiary

hearing in this matter that he had lied at Hawkins’ trial. Although Brown’s testimony at the

evidentiary hearing was markedly different from his trial testimony and he appeared to exonerate

Hawkins of the crimes, Brown also stated during the evidentiary hearing that he told the truth at

Hawkins’ trial as he knew it at the time. (Evid. Hearing p. 478-81.) 

57

or that the State had reason to know it was untrue.16 

In sum, Petitioner’s objections are overruled and the Twenty-Fifth Ground for Relief is

denied.

D. PROSECUTORIAL MISCONDUCT–EVIDENCE

FOURTH GROUND FOR RELIEF

The State’s misconduct regarding the bloody fingerprint violated Petitioner Hawkins’

rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States

Constitution. 

In this Ground for Relief, Petitioner asserts that the State failed to disclose material and

exculpatory information about the partial fingerprint set in blood on the notebook found in

Richard’s car. Petitioner did not raise this claim on direct appeal or in the state post-conviction

relief proceedings. Magistrate Judge Merz nonetheless denied the unexhausted claim on the

merits as he was permitted procedurally to do pursuant to 28 U.S.C. § 2254(b)(2) (“An

application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of

the applicant to exhaust the administrative remedies available in the courts of the State.”).

As to the factual background of this claim, the evidence in the record indicates that the

notebook cover containing the partial fingerprint set in blood was taken to the Miami Valley

Crime Lab (“MVC Lab”). However, there is a dispute in the record as to whether the MVC Lab

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17 To raise a print is to enhance it. To lift a print is to put a plastic lifter over the print and

lift it off of the original surface for analysis. (Evid. Hearing p. 38.)

18 Magistrate Judge Merz relied on the trial testimony of Suder or Alderucci to conclude

that the MVC Lab did not have laser technology at that time. Suder testified at trial that the FBI

used a laser light and that an unidentified lab in Dayton used “omni light, which is a colored

light.” (T.p. 1583.) Alderucci also testified that the FBI used laser light. (T.p. 1670.)

58

tried and failed to raise or lift the bloody partial print.17 The record contains a “Divisional

Commendation” for Michael Suder, a former crime scene investigator for the Hamilton County

Sherriff’s Office, arising from his work on the Marteen and Richard murders which states that

Suder was able to develop a bloody print “after attempts to raise the same by use of a laser were

unsuccessful by the Miami Valley Crime Lab.” (Evid. Hearing ex. PX5.) However, Suder

testified at the evidentiary hearing held by Magistrate Judge Merz that the MVC Lab tried

unsuccessfully to raise two different prints that were found on the notebook, but that he did not

permit the MVC Lab to “mess[ ] with” the bloody print. (Evid. Hearing p. 32-33.) He testified

similarly in his earlier deposition in these habeas proceedings. (Suder depo. p. 64.) Suder also

testified at the evidentiary hearing that the two other prints that were originally found on the

notebook were destroyed in the process of trying to enhance them by laser at the MVC Lab. 

(Evid. Hearing p. 40-41.) He stated that he was engaged in an “informal exercise” when he took

the prints to the MVC Lab. (Evid. Hearing p. 62.) 

A former clerical worker at the MVC Lab confirmed at the evidentiary hearing that the

lab had laser technology in 1989 to analyze fingerprints. (Evid. Hearing p. 69.)18 She also

testified that upon subpoena she searched for records concerning the MVC Lab’s testing of the

prints found in Richard’s car, but that no records could be found. (Id. p. 71-72.) She testified

that a lab sheet, a routing sheet, and a lab report would have been created in regards to the

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59

evidence when an outside agency requested testing. (Id. p. 68.) However, she also admitted that

she would not have known if a MVC Lab technician made an informal arrangement to do testing

but did not complete the necessary paperwork. (Id. at 75-76.) 

The State does not dispute that it did not disclose that the bloody print was taken to the

MVC Lab. Petitioner contends that the fact that bloody print was taken to the MVC Lab

amounted to a break in the chain of custody. Petitioner argues that this was against an order

from the Hamilton County Sherriff’s Detective Boeing dated June 26, 1989 to put the prints in

the safe to hold for court. (Evid. Hearing PX6.) However, the Court does not believe this

amounts to a “break” in the chain of custody. Suder testified at the evidentiary hearing that the

bloody print remained under his direct supervision even when the notebook was taken to the

MVC Lab. (T.p. 32-33.) He also testified that he probably took the prints to the MVC Lab on

June 16, 1989, prior to the date of the Sgt. Boeing order to keep the prints in the safe. Id.

Finally, Petitioner suggests that there was a break in the chain of custody because there is

inconsistent evidence from the serologist and Suder about whether the blood from the print was

tested by the coroner before or after Suder “lifted” the print. (T.p. 1631; Doc. #67, ex. B at

Bates 474, 599.) However, any such inconsistency was made evident by the trial testimony and

does not demonstrate the State’s failure to disclose material evidence. (T.p. 1608, 1630-31,

1684-85, 1698-99.) 

As to Petitioner’s next subclaim, the Court will assume arguendo that the MVC Lab did

try unsuccessfully to raise the bloody print with a laser, and not just the other two prints found

on the notebook. Petitioner argues that the failure to disclose this attempt prejudiced him and

affected the outcome of trial. He states that his Sixth Amendment rights were violated because

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60

had he known the bloody print underwent testing at the MVC Lab, he would have crossexamined Suder about the laser testing and the quality of the bloody print. He also would have

called MVC Lab personnel to testify. He contends that the lack of records from the MVC Lab

verifying the type of testing done on the print would have raised questions in the jury’s mind

about the quality of the fingerprint evidence. 

Additionally, Petitioner contends that the State did not disclose other evidence which

calls into question the integrity of the prints. Suder testified at trial that he attempted to lift the

bloody print only once. (T.p. 1620.) However, he testified at his deposition in these habeas

proceedings that he attempted multiple times to lift the print because “[i]t did not lift real well.” 

(Suder depo. p. 64.) If too many attempts are made to lift a print, the identifiable characteristics

of the print can be destroyed. (Id. p. 65-66; cf. T.p. 1628.) Also, Suder testified for the first time

during these habeas proceedings that he put the bloody fingerprint in a refrigerator to help add

moisture after he had already identified the print. (Evid. Hearing p. 23-26.) Refrigeration can be

used to help raise or enhance the print. (Id. p. 38.) Contrary to Petitioner’s insinuations, this

evidence does not establish or render probable that the bloody print here was damaged or

destroyed.

The State’s failure to disclose the above information does not amount to a

Brady violation because the potential evidence is not material. See Strickler, 527 U.S. at 280

(evidence must be material); Payne v. Bell, 399 F.3d 768, 785 (6th Cir. 2005) (same) rehearing

granted on other grounds 2005 WL 481606 (6th Cir. Feb. 8, 2005). Evidence is material only if

“there is a reasonable probability that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different.” Payne, 399 F.3d at 785 (quoting Bagley, 473 U.S.

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61

at 682). Here, there is no reasonable probability that the result would have been different even if

the State had disclosed the evidence discussed above because none of the evidence directly

impeaches or contradicts the positive print identifications made. 

Suder, the crime scene investigator, testified at trial that he used a black carbide powder

to lift the prints from Richard’s vehicle and from the notebook found inside Richard’s vehicle. 

(T.p. 1583, 1607.) He identified the latent print found on the car door panel and the bloody

partial fingerprint found on the notebook as matching the fingerprints of Hawkins. (T.p. 1590,

1593, 1596.) Detective Peter Alderucci and Specialist Dan Jones verified the prints as matching

the prints of Hawkins. (T.p. 1632-33, 1645-46.) Suder also testified that an expert retained by

Hawkins’ defense counsel prior to trial also examined the chart of the prints prepared by Suder. 

(Evid. Hearing p. 49-50.) The fact that other attempts were made to raise and lift the print does

not impeach the conclusions reached by the experts. Rather, it is evident from the testimony of

Suder and Alderucci that the partial print was not materially damaged or destroyed because both

men were able to make a positive identification. 

In a separate subclaim, Petitioner contends that the State failed to disclose to defense

counsel that there was conflicting testimony concerning the total number of identifiable points

on the prints identified to match those of Hawkins. As to the latter contention, Suder testified to

the grand jury that the two prints he identified as matching Hawkins’ prints each had 12 or 13

identifiable points. (Evid. Hearing ex. PX7, grand jury T.p. 17.) His trial testimony was slightly

different. He testified at trial that the bloody print from the notebook had 14 identifiable points

and the car door print had 10 identifiable points. (T.p. 1592, 1597.) Other documents disclosed

in discovery here state, however, that the car door print had only 8 identifiable prints and the

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62

notebook print had 17 identifiable points. (Doc. #67 ex. B at Bates 19, 1411.) The State’s

failure to disclose these apparent discrepancies does not constitute a Brady violation, however,

because the discrepancies were not material. Only seven identifiable points are needed for an

accurate match and it is undisputed that the prints here each had more identifiable points than

seven. (T.p. 1592.) Also, Suder testified at the evidentiary hearing that he did not chart every

identifiable point for use in testimony; he testified that he always “left a few spares.” (Evid.

Hearing p. 41-42.) There is no reasonable probability that these minor discrepancies would have

changed the outcome of trial.

Finally, Petitioner argues that the reliability of all of the prints is in question. His

argument is based in part on the fact that two other partial prints found on the notebook were

destroyed during attempts to enhance them at the MVC Lab. (Evid. Hearing p. 40-41.) The

Court agrees with Magistrate Judge Merz that this evidence is not material because the partial

prints were of no value before the attempts to enhance them were made. Petitioner also argues

that the State failed to disclose conflicting evidence regarding whether the partial print in blood

was a patent print or a latent print and the total number of prints developed by Suder. A patent

print is a visible print. (T.p. 1585.) A latent print is a hidden print made by secretions from the

glands. (T.p. 1584-85.) Suder testified at trial that, to the best of his memory, he found a total of

10 identifiable prints. (T.p. 1603; Suder depo. 47.) Suder also testified at trial that the print

found on the notebook later identified as matching Hawkins’ print was a patent print. (T.p.

1593.) Discovery documents obtained from State criminal authorities state that there were either

10 latents prints found or 9 latent prints plus one patent print, with the patent print being one of

two prints found on the notebook. (Doc. #67 ex. B at Bates 1685, 1844, 1883-50, 1883-82.) The

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Court does not find these minor inconsistencies to be material. Petitioner was not denied a fair

trial on account of any issue regarding the prints and the State’s actions and inactions do not

undermine this Court’s confidence in the outcome of the trial. See Bagley, 473 U.S. at 678.

Petitioner’s objections are overruled and the Fourth Ground for Relief is denied.

SEVENTH GROUND FOR RELIEF

The prosecutor’s failure to provide Hawkins’ counsel with material and exculpatory

evidence violated his rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth

Amendments to the United States Constitution.

Petitioner states several groups of subclaims here. In the first set of subclaims, Petitoner

contends that the State failed to disclose Brady material regarding the following alleged

alternative suspects for the murder: Henry Brown, Howard Johnson, and Robbie Burns. In order

to show a Brady violation for failure to disclose exculpatory or impeaching evidence, Petitioner

must prove: (1) the evidence was favorable to Hawkins, (2) the evidence was material in that

there is a reasonable probability that had the evidence been disclosed to the defense the result of

trial would have been different, and (3) the evidence that was suppressed was known to the

prosecution, but not the defense, at the time of trial. See Payne, 399 F.3d at 785. Brady material

can include evidence that would inculpate another in the commission of a crime for which a

defendant is charged. However, Brady does not require the State to turn over inculpatory

material regarding a potential suspect if the State also has substantial exculpatory evidence to

conclude the person was no longer a suspect. See Coe v. Bell, 161 F.3d at 345 n.4. 

Many of the arguments concerning Henry Brown are duplicative of arguments made in

connection with the Eleventh, Twenty-Fifth, and Twenty-Seventh Grounds for Relief, supra, and

as such, these arguments will not be addressed here again. Other subclaims in this Ground for

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Relief overlap with the Twenty-Third Ground for Relief, supra, wherein Petitioner alleges that

the trial court erred by denying his motion to compel discovery or to have the police turn over

their investigative file. The Court will analyze the merits of the related Grounds for Relief

together.

a. Evidentiary Material Regarding Henry Brown. The Court begins with the State’s

failure to disclose one set of evidentiary materials concerning Henry Brown that Petitioner

obtained during discovery in this matter. One document, obtained from the Mt. Healthy police

department, is a Henry Brown juvenile court order authorizing Brown to be fingerprinted and

photographed because there was probable cause to believe he was involved with double

homicide. (Doc. #67 ex. B at Bates 1626.) Other police records stated that Brown “confessed to

being part of the offenses.” (Doc. #151, ex. C-1 at 14, ex. C-2 at 14.) Even if these records are

determined to be material under Brady, the failure to disclose the records did not give rise to a

Brady violation because Hawkins was not prejudiced by the failure. Defense counsel knew and

the parties presented the jury with evidence at trial that Brown was originally charged in

connection with the murders, that he was being held in custody at the time of Hawkins trial, and

that he was being given immunity for his trial testimony. (T.p. 848, 893, 933, 970, 1273-74,

1423-26, 1441-44, 1480.) The evidentiary materials Petitioner cites in support of this subclaim

add nothing new to what already was known. This subclaim fails on the merits. 

Petitioner also cites to a sworn affidavit dated October 17, 1994 by an Anthony Caine in

which Caine states that Brown told him after the homicides that Johnson was involved in the

murders. (Doc. #17, ex. NN, attachment A.) Caine also stated that Brown did not state that

Hawkins was involved. The Court does not find this 1994 affidavit to be relevant to these

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Grounds for Relief because there is no evidence that the State was aware of Caine’s statement at

or before the time of the trial which occurred in 1989.

b. Evidentiary Material Regarding Howard Johnson. In another subclaim, Petitioner

contends that the State withheld evidence pertaining to the alternative suspect, Howard Johnson. 

Petitioner cites to a statement taken from Johnson on June 12 or 16, 1989 by the Hamilton

County Sheriff’s Department largely concerning the pagers that Johnson had obtained from his

girlfriend and one of which he gave to Hawkins. (Doc. #67 ex. B at Bates 13-14.) Johnson

permitted the police to photograph and fingerprint him at that time. (Id.) Johnson denied any

knowledge of or involvement in the double homicide. (Id.) He told the police at that interview

that he had not seen Hawkins since June 5, 1989 because he had been staying with his sister

since June 9, 1989. (Id.) On June 17, 1989, in a transcribed statement, Johnson told the police

that he had been staying with his sister since June 9, 1989 and that he had not seen or talked to

Hawkins since June 6 or 7, 1989. (Doc. #151, ex. C-7 at 2, 7-9.) Petitioner argues that the these

statements contained evidence favorable to Hawkins because Johnson gave numerous and

inconsistent alibis. The Court has reviewed the interview reports and does not agree that

Johnson made any material inconsistent statements to the police such that the State was required

to disclose this evidence as Brady material. 

Petitioner also cites to the fact that during the June 17, 1989 interview, Johnson

speculated that the murders did not occur in the place where the vehicle with the bodies were

found. (Doc. #151, ex. C-7 at 11.) Johnson stated that the area in Mt. Healthy where the bodies

were found was a peaceful area where people would call the police if they suspected mischief. 

(Id.) He also indicated that he heard on the street that Richard’s body was found in the backseat

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and he speculated that Richard knew the person who killed him or else he would not have gotten

out of the front seat and moved into the back seat of the vehicle where he would be at a

disadvantage. (Id. ex. C-7 p.12-13.) Petitioner contends that these statements were inconsistent

with another statement Johnson made to the police on June 19, 1989 that he knew nothing about

the murders. (Doc. #67 ex. B at Bates 20.) Again, the Court disagrees with Petitioner’s

characterization of this evidence. Taking the portions of the statement Petitioner relies on in

context it was not inconsistent for Johnson to deny personal knowledge of the murders after he

previously speculated about the nature of the murders based on information he had heard. The

material is not exculpatory and the prosecution was not required to disclose it. 

c. Evidentiary Material Regarding Robbie Burns. Next, Petitioner contends that the

State withheld evidence that Robbie Burns was a suspect. In particular, Petitioner contends that the

State suppressed a June 23, 1989 interview with Burns that was material and exculpatory to

Hawkins. (Doc. #67 ex. B at Bates 1457-74, 1921-22.) Petitioner does not explain how Burns’

statement incriminated Burns or how it was exculpatory of Hawkins. The materiality of the

evidence is not apparent to the Court. The subclaim fails for lack of cogency, or alternatively, on

the merits.

d. Blood and Physical Evidence. In the next subclaim, Petitioner alleges that the State

suppressed that a sample of blood found in Richard’s Hyundai near the driver’s side footrest was a

shoe print in blood. One police investigation report stated that the carpeting on the front driver’s

side had been tentatively tested as containing blood and that “[t]his would indicate that someone

stepped into that side of the vehicle with blood on the bottoms of their shoes.” (Doc. #67 ex. B at

Bates 36.) Petitioner contends that this evidence is exculpatory and should have been disclosed

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because Hawkins’ shoes found at his house tested negative for blood. Magistrate Judge Merz

denied this claim, holding, in essence, that trial testimony made evident that the blood stain in

question likely had come in contact with a shoe. Jeff Schaefer, a specialist with the Hamilton

County Coroner, testified at trial that he tested a stain of blood found on a footrest to the left of the

brake pedal “where you can rest your left foot as you are driving” and where “your left foot would

come to rest.” (T.p. 1711, 1712.) Schaefer likewise testified that Hawkins’ shoes seized from his

home tested negative for blood. (T.p. 1741-45.) The Court finds that even if the particular

investigation report was material and exculpatory, the State’s failure to disclose the report did not

prejudice Petitioner at trial. 

Petitioner also alleges that the State withheld physical evidence that contradicted Henry

Brown’s trial testimony. Brown testified at trial that when he approached Richard’s car he saw

Marteen “just laying to the side” and not moving in the driver’s seat. (T.p. 1405.) Petitioner asserts

that if this testimony were truthful, the police should have found blood spatterings on the driver’s

side window and a bullet hole in the driver’s seat headrest. Petitioner asserts that the State did not

disclose investigation reports that indicated, to the contrary, that blood spatterings were found on

the front passenger side window. (Doc. #151 ex. C-3 at 2; id. ex. C-5 at 2.) However, at trial, Jeff

Schaefer did testify for the State that a projectile was taken from the front passenger’s headrest. 

(T.p. 1718.) Again, assuming the police investigation report to have been Brady material,

Petitioner was not prejudiced by the State’s failure to disclose the evidence because the jury heard

testimony at trial about physical evidence that appears to contradict Brown’s testimony in the same

manner as the police report. 

e. Gun Box. Petitioner’s next claim involves a gun box admitted as an exhibit at trial. The

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gun box had been seized during a police search of Hawkins’ home after the murders. The serial

number on the gun box matched the serial number of a .25 caliber gun the police had seized from

Hawkins in 1988 during a prior arrest. That gun was in police custody at the time of the murders. 

Preliminarily, it must be noted that the State did not violate Brady by suppressing the fact that the

.25 caliber gun from the gun box was in police custody at the time of the murders because Hawkins

had personal knowledge of these facts. See Spirko, 368 F.3d at 610 (holding there is no Brady

violation when the evidence is available to the defendant by another source); Coe, 161 F.3d at 344

(same). The State used the gun box exhibit at trial to support its theory that a .25 caliber gun, the

type of gun used to kill Richard and Marteen, was Hawkins’ “weapon of choice.” (See e.g. T.p.

1271-72, 2309.)

The Court is satisfied that upon examination of the entire trial transcript taken as a whole

the State did not violate Hawkins’ rights by misleading the jury about the gun box and the two

guns. The most troubling testimony was given by Shawn Brown, Henry Brown’s sister, that she

had seen Hawkins with a gun matching the diagram of the .25 caliber gun stored in the gun box in

or about May 1989. (T.p. 1368-70.) A juror might have misunderstood Shawn Brown to be

testifying that she had seen Hawkins with the gun originally stored in the gun box. That would

have been impossible as the gun from the gun box was in police custody. 

Elsewhere during the trial, however, it was made clear that the gun box was not the box for

the murder weapon. In opening statements, the State informed the jury that the police had found a

gun box for a .25 caliber gun during a search of Hawkins’ home. (T.p. 1271.) At that same time,

the State disclosed that the box “was not the box for the murder weapon.” (T.p. 1271-72.) 

Hawkins himself testified at trial that the gun originally stored in the gun box had been seized by

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the police in 1988 at the time of a prior arrest. (T.p. 2104-06.) Later, the defense called Richard

Duwel, a Hamilton County evidence custodian, who testified that the gun with a serial number

matching that of the gun box had been in police custody since 1988. (T.p. 2229-30.) In closing

argument, the prosecutor attempted to explain that the import of Shawn Brown’s testimony was

simply that Hawkins had purchased a second gun after the time the police had seized the gun from

the gun box. (T.p. 2308-09.) He also stated plainly that the gun box did not contain the murder

weapon, and that the gun box and two .25 caliber bullets found during the search of Hawkins’ home

were offered to support the State’s theory that a .25 caliber gun was Hawkins weapon of choice. 

(T.p. 1538-39, 2308-09.) The Court finds that the State did not suppress material evidence nor

violate Hawkins’ rights in regards to the gun box.

f. Withheld Statements. In the next subclaim, Petitioner contends that the State withheld

and continues to withhold statements taken by the prosecutor’s office, specifically: (1) notes from

Henry Brown’s three interviews with prosecutors, (2) a statement written and signed by Henry

Brown and (3) a statement signed by Robbie Burns. Former prosecutor Melba Marsh testified in

discovery in these habeas proceedings that she spoke to Henry Brown two times and that he made

statements to her which were inconsistent with those he made to the police. (Marsh depo. p. 13-14,

21.) A different assistant prosecutor testified that in response to a subpoena he was unable to locate

prosecutorial files concerning Henry Brown apart from those in the Hawkins’ case. (Breyer depo.

p. 15, 17-19, 26.) Brown testified at trial that he talked to prosecutors three times and that his trial

testimony was consistent with what he had told the prosecutors. (T.p. 1425-26.) 

These subclaims cannot succeed because Petitioner has not established that Brown’s or

Burns’ statements to the prosecutors would have contained exculpatory or impeaching material

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evidence. The Court recognizes that Petitioner may be hampered in this regard if the files from the

prosecutor’s office on Brown are missing. Even so, the State’s failure to preserve this evidence

does not constitute a denial of due process unless the State acted in bad faith by misplacing or

losing the files. See Arizona v. Youngblood, 488 U.S. 51, 55 (1988). Petitioner does not attempt to

establish bad faith. Also, even if Brown made additional inconsistent statements to the prosecutors,

such additional impeaching evidence would likely be cumulative, and therefore not material. See

Williams, 380 F.3d at 977 (additional cumulative evidence not material when a witness’s credibility

has already been subject to extensive attack). The Court discussed in the Twenty-Seventh Ground

for Relief, supra, the extensive attack defense counsel made against Brown’s credibility and

motives. As for Burns, there is no reason for the Court to assume that Burns’ statement would have

contained material exculpatory evidence that the defense could not have obtained from Burns

himself. The defense called Burns as a witness to help establish an alibi for Hawkins. (T.p. 1873 et

seq.) The State tried to impeach Burns because he testified at trial that Hawkins left his house at

11:30 p.m. on the night of the murders, but told the police, and apparently the prosecutors, that

Hawkins left at 12:30 a.m. (T.p. 1881, 1892-93.) These subclaims fail for lack of proof on the

merits.

g. Phone Calls. Petitioner next asserts that the State failed to disclose material evidence

concerning the phone call one of the victims, Richard, made the night of the murders. At trial, a

State witness testified that Richard and a friend stopped by her house around 10:30 p.m. on the

night of June 11, 1989, used the telephone to dial a pager, waited approximately 15 minutes for the

return call, and then talked to a person who called the house. (T.p. 1351-54.) This testimony

supported the State’s theory that Richard had called Hawkins’ pager to set up a drug deal. 

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19 Petitioner also states without citation to the record or any evidentiary material that

Richard might have called Robbie Burns at 10:30 p.m. about a drug deal. This part of the

subclaim fails for lack of cogency. 

71

Petitioner asserts that the State suppressed evidence that Richard instead had called his girlfriend at

approximately 10:30 p.m. on June 11th.19 A police investigation report contains a statement by Ed

Berger, a friend of Richard, who stated that he called Richard’s girlfriend at approximately 10:30

p.m. on the June 11th. (Doc. #151 ex. C-8 at 1; id. ex. C-9 at 6.) Berger heard a call waiting beep

during their phone conversation and Richard’s girlfriend said that Richard was on her other line

after she had clicked over. Ids. The Court finds that this evidence based on Berger’s secondhand

knowledge is not material. It does not directly contradict that Richard made a telephone call to a

pager because he could have called his girlfriend from a different location before or after the pager

call. 

h. Time and Place of the Murders. Next, Petitioner contends that the State suppressed

contradictory evidence about the time and place of the murders. At the trial, Henry Brown testified

that he saw Hawkins shoot Richard at approximately 12:30 a.m. and Keith Boehmler testified that

he heard what sounded like gunshots in the same area around 12:30 a.m. (T.p. 1402-03, 1503.) 

Non-disclosed grand jury testimony and police reports contain accounts that vary from the trial

testimony. A police officer testified before the grand jury, apparently based at least in part on

Henry Brown’s and Keith Boehmler’s statements, that the murders occurred at approximately 1:00

a.m. (Evid. Hearing PX 7 p.33, 36.) A police investigation report states that an officer interviewed

several people in the neighborhood who did not report hearing any noises, one person who heard

what he described as four “raps or knocks” at approximately 12:15 a.m. to 12:30 a.m., and one

person who heard a “commotion” and moaning noises around 12:00 a.m. (Doc. #151, ex. C-4 at 1-

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2.) Another person stated that she saw a silver car at 10:30 p.m. on June 11th and again on the

morning of June 12th, but that nobody was in the vehicle. (Id.) The discrepancies in the time of the

murders are insignificant and the statement about the silver car is too vague to be material. The

Court does not believe that there is a reasonable probability that the result of the trial would have

been different if this evidence was disclosed. 

i. Victims’ Pockets. Finally, Petitioner asserts that the State suppressed evidence that the

victims’ pockets had not been turned inside out. The evidence that Marteen’s pockets were turned

inside out supported the robbery charge and an aggravated murder specification that the murders

occurred pursuant to a robbery. Two officers testified at trial that Marteen’s pockets were turned

inside out. (T.p. 1530-31, 1570.) However, Petitioner cites to investigation reports completed by

the officers in which neither made any comment about Marteen’s pockets. (Doc. #151, ex. C-5 and

C-21.) The Court finds that this issue is not material under Brady. The Court will not draw an

inference about the condition of the pockets from the silence of the investigation report. Moreover,

the condition of the pockets was not the sole evidence supporting the robbery charge and

specification. The State also presented evidence that Richard and Marteen had been carrying a

large sum of cash and that Marteen had been wearing several rings on the night of the murders, all

of which were missing when the bodies were discovered. (T.p. 1313, 1317, 1327, 1347-49, 1530-

31, 1570, 1640.) 

The Court overrules Petitioner’s objections and the Seventh Ground for Relief is denied.

FIFTEENTH GROUND FOR RELIEF

Hawkins was denied rights under the Fifth, Sixth, Eighth and Fourteenth Amendments due to

prosecutorial misconduct and deficient and prejudicial representation he received 

throughout trial.

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Petitioner did not raise the subclaims stated in the Fifteenth Ground for Relief in his direct

appeal, but did raise it as the forty-eighth claim for relief in the state court post-conviction relief

proceedings. The trial court held that the forty-eighth claim was barred by the doctrine of res

judicata. (Doc. #17 ex. OO p. 36.) The court of appeals affirmed. See Hawkins, 1996 WL

348024, at *5. As stated above, res judicata is an adequate and independent state law procedural

ground for upholding a conviction. See e.g., Frazier, 343 F.3d at 805; Buell, 274 F.3d at 349. 

Thus, Magistrate Judge Merz was correct to conclude that the subclaims in this Ground for Relief

are barred by procedural default. 

In his objections, Petitioner argues that the ineffectiveness of his appellate counsel for

failing to raise the issues on appeal constituted sufficient “cause and prejudice” to excuse any

procedural default. Petitioner asserted the ineffectiveness of his appellate counsel in regards to the

subclaims herein in his Motion for Reconsideration to the Ohio Supreme Court and in his Ohio R.

App. P. 26(B) Application to Reopen. (Doc. #17 ex. WW p. 11; id. ex. CCC p. 8, 10.) The Ohio

Supreme Court denied the Motion for Reconsideration without stating its reasons and the Ohio

court of appeals later denied Hawkins’ Application as untimely. (Id. ex. YY & GGG.)

The issue is therefore whether appellate counsel was deficient for not raising on appeal the

fact that trial counsel were deficient for not objecting at trial to the alleged instances of

prosecutorial misconduct. “To demonstrate cause for the procedural default, [Hawkins] must show

that both his trial counsel and his appellate counsel were ineffective.” Richey, 395 F.3d at 679. 

The Court now will examine each of the instances in which Petitioner contends his trial and

appellate counsel were ineffective. 

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First, Petitioner contends that Shawn Brown gave hearsay testimony on trial proceeding

transcript page 1372. The Court does not find any hearsay testimony on that page. Second,

Petitioner contends that Mike Suder, the crime scene investigator, gave perjured testimony at trial

when he testified that he “believed” he compared the unidentified fingerprints taken from the

victims’ car to the fingerprints of Howard Johnson. (T.p. 1598.) Petitioner asserts that this

testimony was false because the police investigation reports, which have been subsequently

produced, do not affirmatively state that any fingerprints taken from the car were compared to

Johnson’s prints. (Doc. #151 ex. C-1, C-8, C-10, C-12, C-20, and C-21.) The police investigation

reports cited by Petitioner do not purport to provide a definitive list of those to whom the

fingerprints were compared. This subclaim fails because Petitioner has not established that Suder’s

testimony was false or that the State should have known it was false. 

Next, Petitioner contends that counsel was negligent for not objecting when the prosecutor

improperly belittled witnesses during cross-examination, including when Steve Brown and Howard

Johnson were asked about their drinking and/or drug use, (T.p. 1853, 2000, 2003-04, 2009), and

when Shannon Calkins was asked about drug use and her sex life, (T.p. 1972-74, 1986). The Court,

having reviewed the transcript, finds that in only one instance were the prosecutor’s questions

suspect, and defense counsel made a contemporaneous objection to that question which was

sustained. (T.p. 2000.) The Court concludes that it cannot be said that appellate counsel was

“scarcely functioning as counsel at all” by not raising this issue on appeal. See McMeans, 228 F.3d

at 682. 

Next, Petitioner contends that defense counsel should have objected at trial and on appeal to

specific statements that the State made in closing arguments. Most of Petitioner’s arguments in this

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regard are not stated with sufficient cogency for the Court to find that appellate counsel was

ineffective. First, Hawkins refers to the State’s statement that purpose could be determined by the

manner of the killing. (T.p. 2265). 4 Ohio Jury Instructions 409.01 states that purpose can be

determined by the manner by which an act is done, the means used, and all other considerations. 

Second, Hawkins refers to the State’s characterization of the “prior calculation” requirement. (T.p.

2266). It was not inconsistent with the prior calculation instructions found in 4 Ohio Jury

Instructions 503.01. Finally, the Court is satisfied that none of the specific statements rendered the

trial fundamentally unfair. Trial counsel were not deficient for not objecting at trial and appellate

counsel was not deficient for not raising these issues on appeal. 

In sum, Petitioner’s objections are overruled and the Fifteenth Ground for Relief is denied. 

SIXTEENTH GROUND FOR RELIEF

The admission of gruesome and shocking photographs violated Hawkins’ rights as

guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments. 

Petitioner did not raise this claim on direct appeal. In the post-conviction proceedings, the

trial court held that the claim was barred by res judicata. (Doc. #17 ex. OO p. 38-39.) The court of

appeals affirmed. See Hawkins, 1996 WL 348024, at *5. Petitioner attempted to cure the

procedural default by raising the issue of the admission of autopsy photos as one underlying his

ineffective assistance of appellate counsel claim in his Motion for Reconsideration to the Ohio

Supreme Court and in his Ohio R. App. P. 26(B) Application to Reopen to the Ohio court of

appeals. (Doc. #17 ex. WW p. 12; id. ex. CCC p. 9.) The Ohio Supreme Court denied the Motion

for Reconsideration without stating its reasons and the Ohio First District Court of Appeals later

denied Hawkins’ Application as untimely. (Id. ex. YY & GGG.) However, as discussed above, the

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20 Additionally, in the ineffective assistance of appellate counsel claim presented to the

state courts, Petitioner objected only to the admission of autopsy photographs. Petitioner did not

attempt to preserve any claim related to other photographs of the victims or of Richard’s car. 

76

“good cause” standard of Ohio R. App. P. 26 has not been applied with the regularity or

consistency needed to provide an adequate state law basis to preclude federal habeas relief. 

See Richey, 395 F.3d at 680. Petitioner’s challenge to the effectiveness of his appellate counsel is

preserved. See id. Thus, the Court must determine if the ineffective assistance of Petitioner’s

appellate counsel meets the cause and prejudice test to excuse the procedural default. 

Petitioner alleges in his Amended Petition that the admission of certain photographs and

slides (collectively “the photographs”) as exhibits at trial constituted prosecutorial misconduct and

that his trial counsel were ineffective for not objecting to the photographs’ admission. Petitioner

contends that the photographs of the victims and the car which were shown to the jury at trial were

gruesome and shocking, and that the prejudicial effect of the photographs outweighed their

probative value. Petitioner does not dispute that defense counsel did not object to the photographs

during the guilt phase of trial, (T.p. 1767-69, 1805-06, 1808, 1819), but he argues in the pending

objections that defense counsel did object to the photographs during the sentencing phase, (T.p.

2567-68, 2656-57). 

Defense counsel’s failure to object to the photographs during the guilt portion of the trial

waived the issue of prosecutorial misconduct as to the guilt portion on direct appeal. See Ohio v.

Myers, 97 Ohio St. 3d 335, 780 N.E.2d 186, at ¶ 126 (2002). As for the use of the photographs at

the sentencing phase of the trial, Petitioner has misstated the facts in the trial proceedings transcript. 

Defense counsel at the sentencing phase objected to only those exhibits that had been made a part

of the trial record over its objection in the guilt phase of trial. (T.p. 2567-68, 2656-57.)20

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Magistrate Judge Merz denied this Ground for Relief on the merits. He correctly pointed

out that the Court cannot determine why the photographs are alleged to be gruesome and shocking

because the photographs were not preserved as part of the record in this habeas appeal. Petitioner

simply has failed to establish that the admission of the photographs and his trial counsel’s lack of

objection to the admission of the photographs deprived him of a fundamentally fair trial. As such,

Petitioner’s objections fail and the Sixteenth Ground for Relief is denied.

E. INEFFECTIVE ASSISTANCE OF COUNSEL

SEVENTEENTH GROUND FOR RELIEF

Hawkins was denied his rights guaranteed by the Fifth, Sixth, Eighth and Fourteenth

Amendments because his attorneys failed to adequately investigate and prepare for the

culpability phase of his capital trial. 

The Court will address each subclaim in the Seventeenth Ground for Relief separately. In

the first subclaim, Hawkins alleges that his trial counsel were ineffective for failing to investigate

Ken Boehmler. Petitioner did not raise this subclaim on direct appeal. The trial court during the

post-conviction relief proceedings held that the evidence de hors presented did not meet a minimum

level of cogency to support the claim. (Ex. OO p. 26-27.) The Ohio First District Court of Appeals

affirmed. See Hawkins, 1996 WL 348024, at *5. Magistrate Judge Merz recommended denying

the subclaim on the merits because Petitioner could not prove that his counsel’s performance in this

regard, even if it was deficient, caused him prejudice. See Strickland, 466 U.S. at 687 (stating that

counsel must be deficient and have caused prejudice to establish a claim).

a. Boehmler’s Testimony. Petitioner reargues the merits of this subclaim in his

objections. He argues, in brief, that had defense counsel interviewed Boehmler they would have

learned that he could not pick Hawkins out of a photo array or identify the vehicle in which the

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bodies were discovered in a photo array. At trial, Boehmler testified that he heard three sharp

noises around 12:30 a.m. on the night of the murders. (T.p. 1503.) Shortly after he heard the

noises, he saw a man get out of a parked silverish-gray colored car, walk up the sidewalk, walk

back to the car, and then drive away. (T.p. 1499-1505.) He described the physical build and dress

of the man generally, but testified that he could not see the man’s face and he could not identify

Hawkins as the man he saw that night. (T.p. 1505-06, 1509.) Similarly, Boehmler testified that he

did not pay that much attention to the car and he could not identify the car he saw as being the one

shown in the State’s exhibit 4A. (T.p. 1504, 1510-11.) Given this trial testimony that Boehmler

could not positively identify either Hawkins or the car in which the victims were found, Petitioner

was not prejudiced by the fact that defense counsel was not aware that Boehmler could not have

identified them in a photo array. This subclaim fails on the merits. 

b. Keith Miree. In the second subclaim, Petitioner argues that his trial counsel were

deficient for failing to interview Keith Miree. Petitioner also raised this claim for the first time in

the post-conviction relief proceedings. The state court of appeals denied the subclaim on the

merits. See Hawkins, 1996 WL 348024, at *4. In the Report and Recommendations, Magistrate

Judge Merz referenced his discussion on the Miree issues in the Third Ground for Relief, supra. 

Petitioner argues that defense counsel would have learned that the State used Miree as an agent

after Hawkins’ right to counsel had attached, and that the State made a deal with Miree. This Court

does not believe that defense counsel was required to interview Miree. At trial, defense counsel

already had significant impeachment evidence concerning Miree because they believed they could

prove that Miree offered to Hawkins’ stepfather to provide favorable testimony in exchange for a

bribe. (T.p. 447-51, 477-84.) This subclaim fails on the merits because counsel was not

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constitutionally deficient, or alternatively, Hawkins suffered no prejudice therefrom.

c. Lack of Investigation. In the third subclaim, Petitioner argues that defense counsel

failed to adequately investigate the facts of the killings. Petitioner argues more specifically that

defense counsel should have interviewed and presented as witnesses at the guilt phase of the trial

the three people who contradicted Henry Brown’s alibi: Tommicka Washington, Anthony

Washington, and Rhonda Calhoun. Magistrate Judge Merz analyzed the subclaim on the merits. 

For the reasons stated in the Seventh Ground for Relief, supra, discussing the State’s failure

to disclose the testimony of the Washingtons and Calhoun, the Court holds that defense counsel’s

conduct, even if deficient, caused no prejudice to Hawkins. The testimony of the Washingtons and

Calhoun impeached Brown’s credibility by contradicting his testimony as to where he was before

the murders. They testified that Brown was not at the Washingtons’ house from approximately

8:00 p.m. and thereafter on the night of the murders. The testimony does not establish that Brown

had not returned to the scene of the murders before they took place. The impeachment evidence

also does not explain or contradict the crucial evidence that Hawkins’ bloody fingerprint was found

on a notebook in the victims’ car or that Hawkins’ pager number was found on a napkin in one of

the victim’s pockets. As such, defense counsel’s failure to interview the Washingtons and Calhoun

did not render the trial unfair or the result unreliable. 

d. Expert Testimony. In the fourth subclaim, Petitioner contends his defense counsel was

deficient for not offering expert testimony at trial regarding the fingerprint, forensic, or the

ballistics evidence. This issue was not raised on direct appeal. During the post-conviction relief 

proceedings, the trial court held that whether the defense hired experts was reflected in the record,

that documents offered to meet the claim did not meet a minimum level of cogency, and that the

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claim was barred by res judicata. (Doc. #17 ex. OO at 40-41.) The court of appeals affirmed. 

See Hawkins, 1996 WL 348024, at *5. Magistrate Judge Merz held that the claim was procedurally

barred, or alternatively, failed on the merits. 

This Court agrees with Magistrate Judge Merz that the subclaim fails on the merits, and thus

it need not discuss the procedural default. The record is clear that defense counsel did hire an

expert who examined the fingerprint evidence. (Cutcher depo. p. 39-41; West depo. p. 39; Evid.

Hearing p. 49-50.) Defense trial counsel testified in these proceedings that they did not use the

expert at trial because he agreed with the State’s expert and they did not want to bolster the State’s

testimony. (Cutcher depo. at 39-41.) As to the failure to retain a forensics or ballistics expert,

Petitioner has not proven prejudice. He has not explained to what specifically the experts would

have testified which could have changed the result of the trial. This subclaim fails on the merits. 

Lastly, Petitioner contends his counsel were ineffective because they failed to obtain signed

witness statements in the possession of the State. This subclaim is cross-referenced with the

Seventh Ground for Relief, supra. Again, Petitioner has not established that the witness statements

would have provided material exculpatory or impeaching evidence. The subclaim fails on the

merits.

Petitioner’s objections are overruled and Seventeenth Ground for Relief is denied.

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EIGHTEENTH GROUND FOR RELIEF

Hawkins was denied his rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth

Amendments by the acts and omissions of his trial counsel at the culpability phase of his

capital trial. 

Petitioner raised on direct appeal only one set of the many subclaims in this Ground for

Relief, the set involving defense counsel’s omissions during the sentencing phase of trial. He

asserted this set of subclaims for the first time to the Ohio Supreme Court. The Ohio Supreme

Court held that Hawkins had waived the issue by not raising it before the court of appeals, or

alternatively, that Hawkins had not established ineffective assistance under Strickland. See

Hawkins, 66 Ohio St. 3d at 348-49. None of the issues were raised in the post-conviction

proceedings. Magistrate Judge Merz found the Eighteenth Ground for Relief to be procedurally

defaulted, or alternatively, without merit.

This Court will consider the set of subclaims dealing with defense counsel’s omissions

during the sentencing phase on the merits because the Ohio Supreme Court did the same. The

Court will consider the other subclaims on the merits as well because every subclaim is without

merit. See 28 U.S.C. § 2254(b)(2). 

a. Sufficiency of the Evidence. First, Petitioner submits that his trial counsel were

ineffective for not moving to dismiss the aggravated robbery charges on the merits. This subclaim

is cross-referenced with the Eighth Ground for Relief, infra, wherein Petitioner submits that the

jury did not have sufficient evidence to support its verdicts as to the offenses charged. If the jury

had sufficient evidence to convict, then his claim that his trial counsel were ineffective for not

moving to dismiss the charges fails. A habeas petitioner is entitled to relief “if it is found that upon

the record evidence adduced at the trial no rational trier of fact could have found proof of guilt

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beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 324 (1979). The issue is not

whether this Court believes there was proof beyond a reasonable doubt, but rather whether

“any rational trier of fact” viewing the evidence in the light most favorable to the prosecution could

have so found. Id. at 319 (emphasis in the original). 

Petitioner raised the issue of the sufficiency of the evidence on direct appeal. The Ohio 

Supreme Court applied the Jackson standard set forth immediately above. See Hawkins, 66 Ohio

St. 3d at 344. The Ohio Supreme Court held that there was sufficient evidence to support the

conviction. See id. at 344-45. This Court agrees with Magistrate Judge Merz that the state court

decision was not an unreasonable application of the law to the facts. See 28 U.S.C. § 2254(d)(2). 

The State presented testimony that Hawkins was in possession of a gun around the time of the

murders. (T.p. 1369, 1418, 1453.) It presented evidence that on the day the victims died they had

been carrying approximately $1400 in cash and that Marteen had been wearing four or five rings. 

(T.p. 1313, 1317, 1327, 1347-49.) Police officers testified that the Marteen’s pockets were partially

turned out when they arrived at the crime scene. (T.p. 1530-31, 1570.) No money or jewelry was

found on the body of the victims, except for one ring worn by Richard. (T.p. 1531, 1640.) 

Examining this evidence in the light most favorable to the prosecution, this Court agrees with the

state court that a reasonable jury could have convicted Hawkins of aggravated robbery. See

Jackson, 443 U.S. at 319, 324. Accordingly, Hawkins’ trial counsel were not deficient under

Strickland for not moving to dismiss the aggravated robbery charges. 

b. Errors in Testimony. In the next subclaim, Petitioner submits his counsel were

deficient for not objecting to (1) the trial court’s denial of the jury’s request to re-read certain

testimony, (2) the mischaracterization of witness testimony by the prosecution; and (3) erroneous

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21 The import of Brown’s testimony is that he had seen Hawkins with the gun before. 

Trial counsel may have determined that objecting to the circumstances under which Brown had

seen Hawkins with the gun would have drawn more attention to the alleged prior act than

otherwise was generated by an isolated comment.

83

jury instructions. As to the jury’s request to re-read certain testimony, the Court addressed this

issue in the Twenty-Third Ground for Relief, supra. The Court reiterates here that trial counsel

were not constitutionally deficient in regard to this issue. Trial counsel made a reasonable strategic

decision not to highlight damaging testimony by Shawn Brown and Henry Brown by allowing the

jury to re-hear the testimony or portions thereof. 

As to the alleged mischaracterization of witness testimony, Petitioner is again referring to

the prosecution’s characterization of Ken Boehmler’s testimony in their closing argument. This

issue was addressed in the Eleventh Ground for Relief, supra. The Court concluded that the State’s

comments taken in context did not inaccurately imply that Boehmler was a second eyewitness to

the murders. The Court likewise concludes that Hawkins’ trial counsel were not constitutionally

deficient for not raising an objection.

In regards to “other acts” testimony, Petitioner asserts that his trial counsel should have

objected to Henry Brown’s testimony that he had previously seen Hawkins in possession of a .25

caliber gun when he had “robbed some guy named Andre.” (T.p. 1418.) Neither the State nor

defense counsel elicited further testimony or put on other evidence regarding this alleged prior

robbery. Magistrate Judge Merz concluded, and this Court agrees, that Brown’s statement should

not have been admitted because there was not significant evidence that the prior bad act actually

occurred. See United States v. Haywood, 280 F.3d 715, 719-20 (6th Cir. 2002). Assuming that

defense counsel erred, therefore, by not making a contemporaneous objection to this testimony,21

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the issue becomes whether Hawkins was prejudiced by the deficiency. See Strickland, 466 U.S. at

687. The Court finds that counsel’s failure to object did not deprive Hawkins of a fair trial. See id.

(setting forth the prejudice standard). The Court’s confidence in the outcome of the proceedings is

not undermined by the admission of the testimony. See id. at 694. The jury had substantial other

evidence upon which to convict Hawkins including Hawkins’ bloody fingerprint, Brown’s

eyewitness testimony concerning these crimes, the presence of Hawkins’ pager number on a

napkin, and other circumstantial evidence. Additionally, Shawn Brown also testified that she had

seen Hawkins with a gun several weeks before the murders. (T.p. 1365-70.) 

c. Jury Instructions. Lastly, Petitioner contends that his trial counsel should have

objected to erroneous jury instructions on the duplication of aggravating circumstances and what

constitutes a handgun. The jury instruction issue as to the duplication of aggravating circumstances

is cross-referenced with the Twelfth Ground for Relief and the Sixth Ground for Relief, infra. 

Hawkins was indicted on four counts of aggravated murder, and each count contained two

specifications. The second specification stated, in accordance with O.R.C. § 2929.04(A)(7), that

Hawkins “was the principal offender in the commission of the aggravated murder or[,] if not the

principal offender[,] committed the aggravated murder with prior calculation and design.” (T.p.

2324-27.) Petitioner states that the instruction was duplicative in that it allowed the jury to find

Hawkins guilty of two separate and distinct offenses (i.e. principal offender murder or prior

calculation and design murder) without finding either offense unanimously.

Petitioner contends that the jury instruction was erroneous under Schad v. Arizona, 501 U.S.

624 (1991), and Ohio v. Penix, 32 Ohio St. 3d 369, 513 N.E.2d 744 (1987). In Schad, Justice

Souter held, with the Chief Justice and two justices concurring, and one justice concurring in the

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result, that “the requisite specificity of the charge may not be compromised by the joining of

separate offenses.” 501 U.S. at 633. The Supreme Court, per Justice Souter and the concurrences,

also stated, however, that it may be alleged in a single count that a defendant committed a single

offense by one or more specified means. See id. at 631. State law determines whether statutory

alternatives like principal offender and prior calculation are mere means of committing a single

offense, or rather, if they are independent elements of a crime. See id. at 636. 

Turning to state law, Petitioner contends that Penix stands for the proposition that prior

calculation and design is a distinct conceptual grouping from principal offender, and that the

“alternatives [ ] are not to be charged and proven in the same cause.” See 32 Ohio St. 3d at 371. In

Penix, the trial court had erred by instructing the jury before sentencing that it was to weigh both

that the defendant was a principal offender and that he acted with prior calculation and design as

aggravating circumstances against the mitigating factors. See id. at 370. In subsequent cases, the

Ohio Supreme Court found no error where “the prior calculation and design and principal offender

elements of R.C. 2929.04(A)(7) were charged disjunctively to the jury in a single specification; the

jury could not have found both elements to have been proven, as it could have in Penix.” Ohio v.

Cook, 65 Ohio St. 3d 516, 527, 605 N.E.2d 70 (1992); see also Ohio v. Nields, 93 Ohio St. 3d 6, 30,

752 N.E.2d 859 (2001) (no error if alternatives in the sentencing phase instruction were listed

disjunctively). Nonetheless, a court errs if it does not instruct the jury that they must be unanimous

in agreeing on which of the alternatives the defendant is guilty. See Ohio v. Burke, 73 Ohio St. 3d

399, 405, 653 N.E.2d 242 (1995). That error is harmless if the jury elsewhere indicates its

unanimous verdict on either the prior calculation and design aspect or on the principal offender

aspect. See id.; see also Ohio v. Moore, 81 Ohio St. 3d 22, 40, 689 N.E.2d 1 (1998).

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In this case, in Counts 1 and 3, both of which the jury found Hawkins guilty of committing,

the jury was instructed that they had to find Hawkins guilty of “purposely caus[ing] the death of

another with prior calculation and design” before reaching the issue of whether the State proved

either of the alternative specifications. (T.p. 2327-28, 2332.) As to the specifications, the trial

court listed the alternatives in the disjunctive for each of the four murder counts consistent with

Nields and Cook. (T.p. 2333, 2337.) The trial court erred to the extent that it did not require an

unanimous finding as to which of the alternative specifications they found, as required by Burke. 

But that error was harmless per Burke and Moore because the jury unanimously concluded that

Hawkins acted with prior calculation and design in killing Marteen and Richard in Counts 1 and 3,

respectively. Accordingly, Hawkins’ trial counsel either were not ineffective for failing to object to

the instruction, or alternatively, Hawkins suffered no prejudice thereby.

As to the latter jury instruction issue, Petitioner states the lack of an instruction as to what

constitutes a handgun caused a verdict based on incomplete elements of a crime. At the trial, the

written instructions given to the jury included an instruction as to what constitutes a handgun, but

the judge failed to read that particular instruction to the jury in his charge. (T.p. 2355.) When the

State pointed out the judge’s omission outside the presence of the jury, the judge offered to read the

definition of handgun to the jury, but defense counsel refused the offer stating that he thought

reading it separately from the other instructions “would highlight it.” (Id.) Trial counsel’s decision

clearly was tactical. In light of the fact that the handgun definition was in the written instructions,

the Court finds that Hawkins’ trial counsel were not deficient for failing to object, or alternatively,

that Hawkins suffered no prejudice thereby. 

The Court overrules the objections and denies the Eighteenth Ground for Relief.

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FIRST AND SECOND GROUNDS FOR RELIEF

Hawkins was denied his rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth

Amendments when his trial counsel insulted and threatened the jury regarding its guilt

finding, during the mitigation closing argument at his capital trial.

Hawkins was denied his rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth

Amendments by his trial counsel’s utter lack of investigation and preparation for the

mitigation phase of his capital trial.

In the Report and Recommendations, Magistrate Judge Merz recommended denying the

First Ground for Relief, but granting the Second Ground for Relief. Petitioner raises objections in

regards to the First Ground for Relief, and Respondent raises objections in regards to the Second

Ground for Relief. The factual background of the two Grounds for Relief overlaps and thus the

Court addresses both Grounds together here.

a. Procedural History of the First Ground for Relief. Petitioner asserted this Ground for

Relief for the first time to the Ohio Supreme Court on direct appeal. The Ohio Supreme Court held

that the claim should have been raised in the court of appeals and thus was waived. See Hawkins,

66 Ohio St. 3d at 348. Alternatively, the Ohio Supreme Court held that the claim failed on the

merits. See id. at 348-49. The issue also was raised in the state post-conviction relief proceedings. 

The trial court stated that the claim was barred by res judicata that the evidence de hors the record

submitted by Hawkins did not support the claim for relief. (Doc. #17 ex. OO at 23.) The state

court of appeals agreed that the claim was barred by res judicata. See Hawkins, 1996 WL 348024,

at *5. Petitioner also presented this issue as one underlying his ineffective assistance of appellate

counsel claim in his Motion for Reconsideration to the Ohio Supreme Court and in his Rule 26(A)

Application to Reopen. (Doc. #17 ex. WW at 9; id. ex. CCC at 7.) 

In a previous Decision and Order (doc. #124) and in the Supplemental Memorandum to the

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22 Magistrate Judge Merz also held that Petitioner was not entitled to an evidentiary

hearing on the First Ground for Relief even if the claim was not procedurally defaulted. (Doc.

#124.) 

88

Decision and Order (doc. #130), Magistrate Judge Merz likewise held that the first claim was

procedurally defaulted.22 In the Supplemental Memorandum, Magistrate Judge Merz found that the

ineffective assistance of appellate counsel did not excuse the procedural default because the Ohio

R. App. P. 26(B) Application to Reopen was untimely filed. (Doc. #130 p. 5.) This Court upheld

the Decision and Order, making the procedural default finding the law of this case. (Doc. #134.) 

Magistrate Judge Merz, therefore, again held this claim to be procedurally defaulted in his Report

and Recommendations. 

In this Order, the Court has held that the ineffectiveness of appellate counsel can constitute

the cause that, together with the prejudice created thereby, will excuse a procedural default. See

Richey, 395 F.3d at 679; McFarland, 356 F.3d at 699. The Court also has recognized that where a

Rule 26(B) motion is denied as untimely, the “good cause” standard of Rule 26(B) has not been

applied with the consistency needed to provide an adequate state law procedural basis to preclude

federal habeas relief. See Richey, 395 F.3d at 680. Accordingly, the Court erred in its previous

Order to the extent it did not consider to have been preserved the challenge to the effectiveness of

Hawkins’ appellate counsel for failing to raise this First Ground for Relief on direct appeal. Thus,

the Court will consider on the merits below whether the ineffectiveness of Hawkins’ appellate

counsel provides the “cause and prejudice” to excuse the procedural default of this claim. 

b. Procedural History of the Second Ground for Relief. This claim was raised initially

before the Ohio Supreme Court on direct appeal. The Ohio Supreme Court held that the claim was

waived because it was not first raised in the court of appeals. See Hawkins, 66 Ohio St. 3d at 348. 

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Alternatively, the Ohio Supreme Court held that the claim failed on the merits. See id. at 348-49. 

The issue also was raised in the state post-conviction relief proceedings. The trial court stated that

this claim, the twenty-ninth claim for relief, was based on the record and was barred by res

judicata. (Doc. #17 ex. OO at 23-25.) The trial court also noted that Hawkins’ defense trial

counsel presented a theory of residual doubt at the sentencing phase and that “[p]roof of the fact

that an alternate theory of mitigation existed does not demonstrate ineffective assistance of

counsel.” (Id.) The state court of appeals agreed that the claim was barred by res judicata. See

Hawkins, 1996 WL 348024, at *5. 

Despite the res judicata holdings by the state courts, Magistrate Judge Merz concluded that

the claim was not procedurally barred. He cited the Ohio procedural rule that an ineffective

assistance of trial counsel claim need not be raised on direct appeal if the claim needs support from

evidence de hors the record. In such cases, the claim may be raised for the first time in postconviction relief proceedings. See Ohio v. Lentz, 70 Ohio St. 3d 527, 639 N.E.2d 784, at syllabus

(1994); State v. Cooperrider, 4 Ohio St. 3d 226, 228, 448 N.E.2d 452 (1983). Here, Petitioner’s

claim relies on affidavits outside the trial record, the substance of which are discussed in the factual

background subsection immediately below. Hawkins’ appellate counsel could not have raised on

direct appeal the claim that trial counsel were ineffective based on this de hors evidence. Thus,

while res judicata is an adequate state procedural ground to bar federal habeas relief, Petitioner did

not violate the procedural rule here. See Reynolds, 146 F.3d at 347-48 (stating that to find a claim

has been procedurally defaulted, “the court must find there is a state procedural rule that applies to

the petitioner's claim, and the petitioner failed to comply with the rule. . . . ”). The Court holds that

the Second Ground for Relief was not procedurally defaulted and will consider the claim on the

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merits below.

c. Factual Background of First and Second Grounds. At the sentencing phase of the

trial, defense counsel waived opening statement stating that “we’ll speak to the jury through our

presentation of the evidence.” (T.p. 2567.) Defense counsel pursued a strategy of residual doubt

by re-calling Henry Brown to refresh the jury’s recollection regarding his version of the events on

the night of the murders and then called three witnesses to attack Brown’s alibi. Those three

witnesses were Tommicka Washington, Anthony Washington, and Rhonda Calhoun. The Court in

regards to the Eleventh Ground for Relief, supra, discussed the testimony that the Washingtons and

Calhoun gave which contradicted Brown’s testimony at the guilt and sentencing phases about his

whereabouts on the night of the murder. 

The theme of defense counsel’s closing argument at the sentencing phase of Hawkins’ trial

was that the jury should not have convicted Hawkins on the strength of the testimony of Henry

Brown, whom defense counsel characterized as a proven liar, and that the jury should not

compound its mistake by sentencing Hawkins to death. Defense counsel spoke harshly to the jury

on multiple occasions in the closing argument:

C “I’m very disappointed in your verdicts. Because in our opinion the state has

not proven guilt beyond a reasonable doubt.” (T.p. 2687.)

C Speaking on the jury’s assumed inference from the partial fingerprint in

blood found on the notebook that Hawkins committed the murders: “I don’t

understand how you could have followed the law and arrived at that verdict. 

When you look at the instructions the judge gave you, instructions were very

clear. He talked about inferences. From any set of facts or any one fact you

can draw any number of inferences. But you can’t stack inference upon

inference. . . . That’s what you did if you took the fingerprints and convicted

him on that.” (T.p. 2689-90.) 

C “Now, the state is saying to you accept again what [Henry Brown] said and

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put this young man [Shawn Hawkins] in the electric chair. You may have

made one mistake, don’t compound it. Don’t make two mistakes.” (T.p.

2692-93.) 

C “Now you’ve made a mistake, but don’t compound it. And I’m not just

standing up here calling [Henry Brown] a liar just because I represent Shawn

Hawkins. We’ve proven he is a liar.” (T.p. 2694.) 

C “[E]veryone in this courtroom knew that [Henry Brown] was lying but you

folks.” (T.p. 2697.) 

C “And I also feel badly that you folks didn’t do your job. . . . You built

inference on inference to get conviction. And those of you who did not agree

gave in. Somebody on this jury was not convinced beyond a reasonable

doubt as to guilt. I know that because you were out so long. And I know

that from the nature of your questions. But you sold out. You gave in.” 

(T.p. 2698.) 

C “I will tell you this: what goes around comes around. This is as much your

trial as it is his trial. These are your rights as well as his rights. What you

did to him will come back to you. If you let this system convict a young man

and put him to death on the evidence in this courtroom, on the lies of Henry

Brown, be prepared to accept the consequences.” (T.p. 2699.) 

John West, Petitioner’s defense counsel during this trial and now a Hamilton County, Ohio

Common Pleas judge, testified in these habeas proceedings that “I concluded early on that this was

not a mitigation case. It wasn’t a case that we would try to win after there had been a finding of

guilty.” (West depo. p. 26; see also Evid. Hearing p. 324.) West suggested that he strongly

believed after Hawkins had testified at the trial that the verdict would go against Hawkins because

of the evidence the State had and the fact that Hawkins presented as a poor witness. (West depo. p.

31-32, 74.) West admitted that he did not like the jury after the verdict, and that he also may not

have liked them before the verdict. (Id. p. 33.) He admitted that he felt angry towards the jury and

he believed they had their minds made up about the sentence to impose when he argued before

them at the sentencing phase. (Id. p 34, 37.) He felt like he was “talking to that wall.” (Id. p. 34.) 

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He agreed that he might have chastised the jury during his sentencing phase closing, but

stated that it was part of his strategy to “[c]hallenge that jury to save [Hawkins’] life.” (West depo.

p. 77.) West described his strategy as being based on a theory of residual doubt. (Evid. Hearing p.

349.) Because the jury convicted Hawkins of two execution-style homicides and Hawkins had a

prior record, West did not believe he could argue that the killings were an accident or that Hawkins

was a good guy. (West depo. p. 77-78.) West testified that he did not think that presenting

affidavits from Hawkins’ family members would have had an effect on the jury. (Evid. Hearing p.

327.) “If the jury comes back and finds him guilty of two executions, there’s not much we can tell

them that’s going to change their mind with regard to the ultimate verdict.” (Evid. Hearing p. 347.) 

When he was asked if he talked to Hawkins, his mother, or his stepfather before the sentencing

phase regarding the witnesses they could call, West stated that he made clear to them that they were

going to have to try aggressively to win the case at trial. (Evid. Hearing p. 347.) “[T]his is not a

case we thought about mitigation.” (Id.) He stated that he would evaluate the case the same way

today and follow the same strategy. (West depo. p. 78.) 

During the post-conviction relief proceedings, Hawkins’ new attorneys obtained affidavits

from nine of Hawkins’ immediate and extended family members each of whom stated that they

would have been willing to testify at the sentencing phase but were not asked to do so. (Evid.

Hearing PX 23 ex. 35-43.) Six of the family members stated that they were never contacted by an

attorney or investigator concerning Hawkins’ trial. (Id.) The affiants could have testified about the

following items which would have been relevant mitigation evidence:

C Hawkins’ biological father had a history of alcohol use. (Belle Green aff;

Renee Rodgers aff.; Doris Hull aff; Kevin Hawkins aff.; Stephanie Hawkins

Harris aff.; Judy Hogan aff. )

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C There was discord in Hawkins’ parents’ marriage, his father engaged in

extramarital affairs, and his parents eventually divorced. (Belle Greene aff.;

Renee Rodgers aff.; Kevin Hawkins aff.; Stephanie Hawkins Harris aff.;

Judy Hogan aff.; James Hawkins aff.)

C Hawkins’ father physically assaulted his mother on one occasion breaking

her nose. (Kevin Hawkins aff.; James Hawkins aff.)

C Hawkins was impacted by favoritism shown to his brother at school and at

home. (Charles Hogan aff.)

C Hawkins’ sister died at the age of three and Hawkins appeared depressed

afterwards. (Merinda Mae Walker aff.; Doris Hull aff.; Kevin Hawkins aff.;

Stephanie Hawkins Harris aff.; Judy Hogan aff.; James Hawkins’ aff.)

C Hawkins appeared to be depressed and tried at least twice to commit suicide

at a young age. (Belle Green aff.; Kevin Hawkins aff.; James Hawkins aff.)

C Hawkins refused to take a plea bargain in this case stating that he would not

plead to a crime he did not commit. (Charles Hogan aff.)

d. Analysis. The issue in the First Ground for Relief is whether appellate counsel was

constitutionally ineffective for not raising on appeal that trial counsel rendered ineffective

assistance at the sentencing phase by insulting and berating the jury. The issue in the Second

Ground for Relief is whether trial counsel rendered ineffective assistance at the sentencing phase by

their lack of investigation and preparation. The Court is mindful in its analysis to examine the

adequacy of counsel’s representation in light of “counsel’s perspective at the time” and to give a

“heavy measure of deference to counsel’s judgments.” Rompilla, slip op. at 5 (quoting Strickland,

466 U.S. at 689, 691). 

Hawkins was convicted of murdering two men, each crime with two separate aggravating

circumstances. See O.R.C. § 2929.04(A)(5) (offense at bar included the purposeful killing of or

attempt to kill two or more persons); O.R.C. § 2929.04(A)(7) (offense was committed in the course

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of an aggravated robbery, and, the offender either was the principal offender in the aggravated

murder or committed the murder with prior calculation and design). Pursuant to Ohio law, the jury

was to recommend a death sentence if they found by proof beyond a reasonable doubt that the

aggravating circumstances outweighted the mitigating factors. See O.R.C. § 2929.03. The

statutory mitigating factors the jury was instructed to consider included, among other statutory

factors, (1) the nature and circumstances of the offense, (2) the history, character, and background

of the offender, (3) the youth of the offender, and (4) any other factor that is relevant to the issue of

whether the offender should be sentenced to death. (T.p. 2708-09 (identifying the statutory factors

found at O.R.C. § 2929.04).) As the prosecution pointed out in its closing argument at the

sentencing phase, defense counsel did not identify a single mitigating factor which the jury could

find in Hawkins’ favor. (T.p. 2703.) 

The First Ground for Relief is concerned not with whether trial counsel investigated and

presented mitigating evidence, but rather whether trial counsel were deficient for insulting the jury

and appellate counsel deficient for not raising trial counsel’s deficiency on appeal. The Court holds

that this claim fails because Petitioner cannot establish prejudice resulting from the performance of

either trial counsel or appellate counsel on this issue. Trial counsel’s primary deficiency at the

sentencing phase, as discussed in detail below, was the failure to investigate and present mitigating

evidence. Even had trial counsel adopted a more conciliatory approach in his sentencing phase

closing argument, there is no reasonable probability, as the standard is set forth in Strickland, that

the jury would have concluded that the balance of the aggravating and mitigating circumstances did

not warrant death. See Strickland, 466 U.S. at 695. The only possible way that the outcome of the

sentencing might have been different would have been for defense counsel to have presented

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mitigating evidence. Accordingly, the Court holds that the alleged ineffectiveness of appellate

counsel does not provide sufficient “cause and prejudice” to excuse Petitioner’s procedural default

of the First Ground for Relief.

Turning to the Second Ground for Relief, “when a client faces the prospect of being put to

death unless defense counsel obtains and presents something in mitigation, minimal standards

require some investigation.” Mapes, 171 F.3d at 426 (emphasis in the original). The Sixth Circuit

strongly has suggested that to render effective assistance in a capital case, trial counsel is required

to begin preparations for mitigation before the conclusion of the guilty phase of the trial. See e.g.

Johnson v. Bell, 344 F.3d 567, 573 (6th Cir. 2003) (collecting cases); Glenn v. Tate, 71 F.3d 1204,

1207 (6th Cir. 1995). Of course, this Court must indulge a “strong presumption” that trial counsel’s

conduct fell within a wide range of professional competency. See Johnson, 344 F.3d at 573. Trial

counsel should not ignore known leads that might lead to mitigation evidence, but they are not

required pursue every conceivable line of mitigation. Id. at 573-74. The Supreme Court has

recognized that “[r]easonably diligent counsel may draw a line when they have good reason to think

further investigation would be a waste.” Rompilla, slip. op. at 7. The complete failure to make an

independent investigation, apart from the representations of the client, of any mitigating evidence

usually falls below minimum standards of competence. See Carter v. Bell, 218 F.3d 581, 595-96

(6th Cir. 2000); cf. Coleman v. Bell, 244 F.3d 533, 544-45 (6th Cir. 2001) (failure to do

investigation not deficient when client would not cooperate in investigation and client directed

counsel to pursue residual doubt theory). This Court remains cognizant always that “[i]f a jury has

nothing to weigh against the aggravating circumstance, it almost certainly must find that the

aggravating circumstance outweighs the (nonexistent) mitigating circumstances, and recommend

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23 The Court notes that the Ohio Supreme Court decided several years after Hawkins was

convicted and sentenced that residual doubt is not an acceptable mitigating factor under O.R.C.

§ 2929.04(B). See Ohio v. McGuire, 80 Ohio St. 3d 390, 686 N.E.2d 1112, at syllabus (1997). 

24 The Ohio Supreme Court noted that Hawkins was no older than twenty-one years old at

the time of the murders, but found the factor to be entitled to little weight. See Hawkins, 66

Ohio St. 3d at 351. 

96

death.” Mapes 171 F.3d at 426.

This Court agrees with Magistrate Judge Merz that trial counsel’s strategy of arguing only

residual doubt amounted to constitutionally ineffective counsel under the circumstances.23 Trial

counsel testified that he did not think that presenting testimony from Hawkins’ family members

would be successful. (Evid. Hearing p. 327.) When asked if he discussed mitigation strategy with

Hawkins, or with his mother and stepfather, with whom he did consult throughout trial, and from

whom he presumably could have discovered relevant information about Hawkins’ childhood

suicide attempts, West stated only that he told them they would have to try to win the case at trial. 

(Id. p. 347.) His answer implies that he did not inquire about potential mitigating evidence from

them. Also importantly, the evidence is clear that defense counsel did not affirmatively argue even

one mitigating factor to the jury.24 The failure to do so requires a finding of deficient performance

under Strickland.

The Court must also consider whether trial counsel’s deficiency prejudiced Hawkins. The

Supreme Court in Strickland defined the issues as follows: “When a defendant challenges a death

sentence such as the one at issue in this case, the question is whether there is a reasonable

probability that, absent the errors, the sentencer–including an appellate court, to the extent it

independently reweighs the evidence–would have concluded that the balance of aggravating and

mitigating circumstances did not warrant death.” 466 U.S. at 695. Thus, under Ohio law, the issue

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is whether there is a reasonable probability that at least one juror would have concluded that the

aggravating circumstances did not outweigh the mitigating factors beyond a reasonable doubt if the

juror had know about Hawkins’ childhood background. See Frazier, 343 F.3d at 798. 

The Court holds that there is a reasonable probability that at least one juror would have

concluded that the aggravating circumstances did not outweigh the mitigating factors beyond a

reasonable doubt. There is a reasonable probability that at least one juror would have found

Hawkins to be less morally culpable in some way based on the fact that he had a troubled

upbringing marked by depression and two attempts at suicide. As such, this Court’s confidence in

the jury’s recommendation for the death sentence has been undermined. See Strickland, 466 U.S. at

694. To the extent that the Ohio Supreme Court reached the prejudice prong under Strickland,

which is unclear from its one-sentence analysis, the Court holds that its application of Strickland

was objectively unreasonable. See 28 U.S.C. § 2254(d)(1). 

Accordingly, the Court overrules Petitioner’s objections as to the First Ground for Relief

and denies the First Ground for Relief on the merits, and the Court denies the Respondent’s

objections as to the Second Ground for Relief and grants the writ as to the Second Ground for

Relief.

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F. JURY

EIGHTH GROUND FOR RELIEF

The trier of fact’s verdicts as to the offenses contained in the indictment were based upon

insufficient evidence and violated Hawkins’ rights under the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States Constitution.

Petitioner asserts three subclaims here. He alleges that the jury’s verdict was based on

insufficient evidence identifying Hawkins as the perpetrator, insufficient evidence to convict

Hawkins of aggravated robbery, and insufficient evidence that the aggravating circumstances

outweighed the mitigating factors. Petitioner stated these subclaims on direct appeal. The Ohio

Supreme Court held that there was sufficient evidence to identify Hawkins as the killer, that there

was sufficient evidence to convict Hawkins of aggravated robbery, and that the aggravating

circumstances for each killing outweighed the mitigating factors. See Hawkins, 66 Ohio St. 3d at

344-45, 351. On the last issue, the Ohio Supreme Court noted that the only potential mitigating

factor, which was entitled to very little weight, was Hawkins’ age of no more than twenty-one at the

time of the murders. See id. at 351. 

a. Evidence Concerning Hawkins as the Murderer. As to the first subclaim, Petitioner is

entitled to relief “if it is found that upon the record evidence adduced at the trial no rational trier of

fact could have found proof of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 324. The

issue is not whether this Court believes there was proof beyond a reasonable doubt, but rather

whether “any rational trier of fact” viewing the evidence in the light most favorable to the

prosecution could have so found. Id. at 319 (emphasis in the original). Because the state courts

ruled on the merits, this Court must determine if the state courts unreasonably applied the

controlling federal law. The Court first notes that the Ohio Supreme Court analyzed this subclaim

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under the appropriate standard from Jackson. See Hawkins, 366 U.S. at 344-45. 

In his objections, Petitioner points to the testimony of defense-proffered witnesses as

follows: two witnesses who had been with Hawkins in the early and late evening hours on the night

of the murders and testified they saw Hawkins sit in the rear of a Hyundai with Terrance Richard 

shortly after 7:30 p.m., (T.p. 1825-35, 1859-1864), a witness who contradicted Henry Brown’s

testimony that he (the witness) had been at the scene of the crime and who stated that the police

offered to end his probation if he testified against Hawkins, (T.p. 1884, 1888), a witness who

testified that she drove Hawkins home around midnight on the night of the murders, (T.p. 1933-35),

a witness who testified she was with Hawkins from approximately 12:45 a.m. until approximately

3:00 a.m. on the night of the murders, (T.p. 1960), and a witness who claimed to be with Henry

Brown on the night of the murders contradicting Brown’s version of events and who stated that

Brown told him after the murders that he did not know who did it, (T.p. 1990-99). Hawkins also

points to his mother’s testimony that Hawkins talked with the victim Richard at 9:00 p.m. the night

of the murders, that Hawkins then left the house for a few hours and returned home around 12:00

a.m., and that Hawkins’ friend came to visit him at 12:45 a.m. (T.p. 2030-38.) Petitioner also

again attacks the credibility and veracity of Henry Brown in his objections and argues that the

State’s case was predicated on this unreliable testimony.

In sum, Petitioner in his objections requests that this Court conclude that Brown was not a

credible witness, but that the defense witnesses who provided Hawkins with an alibi on the night of

the murders were credible. The role of this Court, however, is to examine the sufficiency of the

evidence, not the quality of the evidence or the credibility of witnesses. See Martin v. Mitchell,

280 F.3d 594, 618 (6th Cir. 2002). “[A]ttacks on witness credibility are simply challenges to the

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quality of the government's evidence and not to the sufficiency of the evidence.” Id. (quoting

United States v. Adamo, 742 F.2d 927, 935 (6th Cir. 1984)). Also, the Ohio Supreme Court set

forth in detail the trial evidence upon which it concluded that the jury had sufficient evidence to

conclude Hawkins killed the victims. This evidence includes, in brief, Brown’s testimony that he

saw Hawkins shoot Richard and that Marteen already was dead, Boehmler’s testimony that he

heard loud noises that could have been gunshots at the same time Brown stated that the murders

occurred and that he saw someone fitting Hawkins’ description driving a silver-gray sedan,

Hawkins’ admission to negotiating a drug deal with the victims earlier in the day, and Hawkins’

fingerprints in the vehicle, including one print set in blood. See Hawkins, 66 Ohio St. 3d at 344-45. 

The Ohio Supreme Court’s analysis is not an unreasonable application of the Jackson standard. See

28 U.S.C. § 2254(d)(1). 

b. Evidence Regarding the Aggravated Robbery Conviction. As to the second

subclaim, the Court determined in regards to the Eighteenth Ground for Relief, supra, that

examining this evidence in the light most favorable to the prosecution, a reasonable jury could have

convicted Hawkins of aggravated robbery. See Jackson, 443 U.S. at 319, 324. Accordingly, this

subclaim fails on the merits. 

c. Evidence Supporting the Death Verdict. As to the third subclaim, Hawkins alleges

that there was insufficient evidence to support a death verdict. The jury found two separate

aggravating circumstances at the guilt phase of trial beyond a reasonable doubt: O.R.C.

§ 292.04(A)(5) (offense at bar included the purposeful killing of or attempt to kill two or more

persons) and O.R.C. § 2929.04(A)(7) (offense was committed in the course of an aggravated

robbery, and, the offender either was the principal offender in the aggravated murder or committed

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the murder with prior calculation and design). Defense counsel did not explicitly put forth any

mitigating factors to weigh against the aggravating circumstances. See Second Ground for Relief,

supra. The jury could have gleamed from the earlier trial testimony that Hawkins was no older

than the age of twenty-one at the time of the murders and considered that as a mitigating factor. 

(T.p. 2102.) Based on this evidence, the Court concludes a rational trier of fact could have

determined that the aggravating circumstances outweighed the mitigating factors. See Jackson, 433

U.S. at 324. Petitioner’s rights were not violated, his objections are overruled, and the Eighth

Ground for Relief is denied.

SIXTH GROUND FOR RELIEF

The jury’s failure to unanimously find an element of an aggravated murder specification

violated Hawkins’ rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth

Amendments.

Petitioner argues in this Ground for Relief that the jury did not reach a unanimous verdict in

regards to the second specification on each count of aggravated murder. The trial court instructed

the jury as to the second specification, in accordance with O.R.C. § 2929.04(A)(7), that Hawkins

“was the principal offender in the commission of the aggravated murder or, if not the principal

offender, committed the aggravated murder with prior calculation and design.” (T.p. 2324-27.) 

Petitioner states that the instruction was duplicative in that it allowed the jury to find Hawkins

guilty of two separate and distinct offenses (i.e. principal offender murder or prior calculation and

design murder) without finding either offense unanimously. 

This Ground for Relief overlaps on the merits with the Eighteenth Ground for Relief, supra. 

Petitioner argued in the Eighteenth Ground for Relief that his trial counsel were ineffective for not

objecting to the jury instructions on this point. The Court has concluded that the Court may have

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erred in not requiring the jury to separately and unanimously find Hawkins guilty of either principal

offender murder or prior calculation and design murder. See Burke, 73 Ohio St. 3d at 405. 

However, that error was harmless because the jury must have unanimously concluded that Hawkins

acted with prior calculation and design on Counts 1 and 3 in order to have reached the specification

issue. See Moore, 81 Ohio St. 3d at 40; Burke, 73 Ohio St. 3d at 405. 

Petitioner’s objections are overruled and the Sixth Ground for Relief is denied on the merits. 

TWELFTH GROUND FOR RELIEF

The death sentence in Hawkins’ case violated the Fifth, Sixth, Eighth and Fourteenth

Amendments. The jury’s sentencing verdict was made by jurors who were provided with

instructions that were in toto misleading, confusing, and tilted the sentencing process in favor

of a sentence of death.

Petitioner did not raise this issue on direct appeal. The issue was raised in the postconviction relief proceedings. The trial court held that the claims were based solely on the wording

of the instructions contained in the trial transcript and thus were barred by the doctrine of res

judicata. (Doc. #17, ex. OO p. 20-22.) The trial court also held that the affidavit of a linguist

offered as evidence de hors the record was not sufficient to save the claims from the res judicata

bar. (Id.) The court of appeals affirmed the res judicata finding. See Hawkins, 1996 WL 348024

at *5. Magistrate Judge Merz held the claim to be procedurally barred because res judicata is an

adequate and independent state law ground for upholding a conviction. See e.g., Frazier, 343 F.3d

at 805; Buell, 274 F.3d at 349. 

However, Petitioner asserts that the ineffectiveness of his appellate counsel for failing to

raise this issue on direct appeal is cause to excuse the state-law procedural bar. Petitioner

attempted to cure the procedural default by raising the issue as one underlying his ineffective

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assistance of appellate counsel claim in his Motion for Reconsideration to the Ohio Supreme Court

and in his Ohio R. App. P. 26(B) Application to Reopen. (Doc. #17 ex. WW p. 8; id. ex. CCC p. 7,

10.) The Ohio Supreme Court denied the Motion for Reconsideration without stating reasons

therefore and the Ohio court of appeals later denied Hawkins’ Application as untimely. (Id. ex. YY

& GGG.) However, the “good cause” standard of Ohio R. App. P. 26 has not been applied with the

regularity or consistency needed to provide an adequate state law basis to preclude federal habeas

relief. See Richey, 395 F.3d at 680. Petitioner’s challenge to the effectiveness of his appellate

counsel is preserved. See id. Thus, the Court must determine if the ineffective assistance of

Petitioner’s appellate counsel meets the cause and prejudice test to excuse the procedural default.

During the trial proceedings, defense trial counsel made two minor objections to the jury

instructions for the sentencing phase of the trial, but neither objection involved the issues raised

herein. (T.p. 2662-67.) The failure of trial counsel to object to the sentencing instructions given to

the jury waived all but plain error on appeal. See Ohio v. Hartman, 93 Ohio St. 3d 274, 289, 292,

754 N.E.2d 1150 (2001). Appellate counsel generally is not ineffective for failing to raise issues on

appeal that were not properly preserved at trial. See Hutton, 100 Ohio St. 3d 176 at ¶ 54. 

Petitioner first argues in his objections that the trial court erred, and counsel should have

objected at trial and raised the issue on appeal, when the trial court instructed the jury that they had

to reach a unanimous verdict on death or on either of the two alternative life verdicts. The trial

court did instruct the jury that their sentencing verdict had to be unanimous. (T.p. 2709-16.) 

However, the instruction did not constitute error, much less plain error. The relevant Ohio statute

states as follows:

If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the

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aggravating circumstances the offender was found guilty of committing outweigh the

mitigating factors, the trial jury shall recommend to the court that the sentence of

death be imposed on the offender. Absent such a finding, the jury shall recommend

that the offender be sentenced to life imprisonment with parole eligibility after

serving twenty full years of imprisonment or to life imprisonment with parole

eligibility after serving thirty full years of imprisonment.

O.R.C. 2929.03(D)(2). Ohio and federal courts have interpreted this statute to require a unanimous

verdict as to either a death sentence or a life sentence. See e.g. Henderson v. Collins, 262 F.3d 615,

620 (6th Cir. 2001); Ohio v. Smith, 87 Ohio St. 3d 424, 437-38, 721 N.E.2d 93 (2000); Ohio v.

Jenkins, 15 Ohio St. 3d 164, 473 N.E.2d 264, at syllabus ¶ 10 (1984). 

Petitioner misapplies the primary precedents he cites. For example, the erroneous jury

instruction in Ohio v. Brooks, 75 Ohio St. 3d 148, 661 N.E.2d 1030 (1996), stated that the jury

“was required to determine unanimously that the death penalty is inappropriate before [the jury

could] consider a life sentence.” 75 Ohio St. 3d at 159-60. Likewise, in the Mapes case, the jury

was instructed that they could proceed to determine which life imprisonment sentence to apply only

after unanimously finding that the aggravating circumstances did not outweigh the mitigating

factors. See 171 F.3d at 416. The courts in each case erred by instructing the jury that they had to 

unanimously reject death before determining which life sentence to impose. See Mapes, 171 F.3d

at 416; Brooks, 75 Ohio St. 3d at 160. However, even the Brooks court agreed that a life sentence

verdict had to be unanimous. See 75 Ohio St. 3d at 162. Although the trial court here could have

more clearly explained that the jury did not have to be unanimous either way on death before

considering a life sentence, the trial court did not erroneously instruct the jury in Hawkins’ trial that

it had to unanimously reject the death sentence. This subclaim fails on the merits, appellate counsel

was not deficient for not raising it on appeal, and Petitioner has not established cause for the

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procedural default of this subclaim.

In several related subclaims, Petitioner argues that the trial court erred, and counsel should

have objected at trial and raised the issue on appeal, by instructing the jury to consider nonstatutory aggravating factors. To the extent one of these subclaims is based on the trial court’s

instruction quoting O.R.C. § 2929.04(B)(7), the Court rejects the subclaim on the merits in regards

to the Twenty-Second Ground for Relief, infra. 

In another subclaim, Petitioner asserts that the prosecutor and trial court erred by informing

the jury that they could consider “the nature and circumstances” of the offense or of the aggravating

factors themselves as non-statutory aggravating factors. The Court agrees that the prosecutor acted

improperly when it implied that the jury should consider the “execution style” of the murders as an

aggravating circumstance. (T.p. 2701.) That is not a proper statutory aggravating factor. See

O.R..C. §§ 2929.03, 2929.04. However, it was not plain error that changed the outcome of the

sentencing in light of the fact that the jury found two statutory aggravating circumstances beyond a

reasonable doubt and the jury had little if any mitigating evidence to weigh against those

aggravating circumstances. See Ohio v. Wogenstahl, 75 Ohio St. 3d 344, 357-60, 662 N.E.2d 311

(1996) (finding the same in similar circumstances). Moreover, the Court holds that the trial court’s

jury instructions were not erroneous. The trial court properly instructed the jury as to what the

statutory aggravating circumstances were. (T.p. 2705-07.) The trial court’s later comments that the

jury could consider the “nature and circumstances of the aggravating circumstances[,]” (T.p. 2707-

08, 2711), tracks the language of O.R.C. § 2929.03(D)(1) that the jury “shall hear testimony and

other evidence that is relevant to the nature and circumstances of the aggravating circumstances the

offender was found guilty of committing.” The Court holds that appellate counsel was not

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ineffective for not raising these issues on appeal.

As to the remaining subclaims, the Court finds either that the Petitioner’s arguments are

without merit, or alternatively, that any error established did not constitute plain error and therefore

appellate counsel was not deficient for failing to raise the issues on appeal. 

In sum, the Court denies Petitioner’s objections and denies the Twelfth Ground for Relief.

THIRTEENTH GROUND FOR RELIEF

Hawkins’ rights under the Sixth and Fourteenth Amendments were violated because he was

denied the right to effective assistance of counsel in his Motion for a New Trial.

Petitioner asserts in this Ground for Relief that he was denied the effective assistance of

counsel because the attorney team that handled his motion for a new trial, based on the newly

discovered .25 caliber handgun possessed by Henry Brown, did not hire an independent ballistics

expert to examine the gun. This claim was raised for the first time in the post-conviction relief

proceedings. The trial court held that the claim was barred by res judicata. (Doc. #17 ex. OO p.

40-41.) The court of appeals affirmed the res judicata finding. See Hawkins, 1996 WL 348024, at

*5. 

This Court disagrees with the trial court’s holding. Hawkins was represented by both his

trial counsel and Robert Hastings, Jr., who represented Hawkins during direct appeal, on the motion

for a new trial. Hastings was not required on direct appeal to argue that he had been ineffective in

not retaining a ballistics expert to support the motion for a new trial. See Payton v. Brigano, 256

F.3d 405, 407 n.1 (6th Cir. 2001); Ohio v. Cole, 2 Ohio St. 3d 112, 443 N.E.2d 169, at syllabus

(1982). In such cases, the ineffectiveness of counsel claim is cognizable in state post-conviction

relief proceedings. See ids. Thus, the state courts erred in applying the res judicata bar to

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Hawkins’ claim. 

Nonetheless, this Court agrees with Magistrate Judge Merz that Petitioner’s claim fails on

the merits. Petitioner cites to cases asserting that counsel must perform a reasonable investigation

and that such investigation includes the retention of independent experts. See e.g., Sims v. Livesay,

970 F.2d 1575, 1580-81 (6th Cir. 1992) (holding that the failure to investigate and hire an expert

constituted ineffective assistance of counsel under the circumstances). Even if the failure to retain a

ballistics expert constituted ineffective assistance, Petitioner has not established that he was

prejudiced thereby. He suggests only that had his attorneys retained an independent expert “they

might have been able to present stronger evidence” to support their motion for a new trial. (Doc.

#203 p.95.) A petitioner has not established prejudice if a court is left with only speculation on

whether the outcome would have been different. See Baze, 371 F.3d at 322. 

The Court overrules Petitioner’s objections and denies the Thirteenth Ground for Relief. 

TWENTIETH GROUND FOR RELIEF

Hawkins was denied his rights as guaranteed by the Sixth and Fourteenth Amendments

because of the ineffective assistance of counsel during his appeal.

The Court has addressed either the merits of the underlying trial court issues and/or the

merits of the ineffectiveness of appellate counsel in the First, Second, Third, Fifth, Sixth, Seventh,

Twelfth, Thirteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Twenty-Third, and TwentyFourth Grounds for Relief, supra, and in the Twenty-Second Ground for Relief, infra. The Court

adds to the foregoing analysis that Petitioner has not established that the appellate issues asserted in

this Ground for Relief are “clearly stronger” than the eleven assignments of errors that Petitioner’s

appellate counsel did assert in his direct appeal. See Bigelow, 367 F.3d at 570 (quoting Monzo,

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281 F.3d at 579).

Petitioner’s objections are overruled and the Twentieth Ground for Relief is denied.

MISCELLANEOUS

TWENTY-FIRST GROUND FOR RELIEF

Ohio does not provide an adequate corrective process for the litigation of PC [post conviction]

claims as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments.

Petitioner asserts that Ohio’s system for post-conviction relief is unconstitutional. 

Magistrate Judge Merz held that the claim was not cognizable in a § 2254 habeas proceeding and

this Court agrees. The Sixth Circuit has held that claims asserting a denial of constitutional rights

in state post-conviction relief proceedings are not cognizable in a § 2254 habeas proceeding

because they are not related to the petitioner’s detention. See Roe v. Baker, 316 F.3d 557, 571 (6th

Cir. 2002); Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986). The Sixth Circuit in Kirby

specifically rejected a holding by the First Circuit to the contrary which is cited by Petitioner,

Dickerson v. Walsh, 750 F.2d 153 (1st Cir. 1984). See 794 F.2d at 247-48. 

For this reason, Petitioner’s objections are overruled and the Twenty-First Ground for Relief

is denied. 

TWENTY-SECOND GROUND FOR RELIEF

The trial court erred by denying Hawkins’ motion to dismiss the specifications and by

sentencing Petitioner to death because the Ohio death penalty scheme is unconstitutional. 

 Petitioner asserted this Ground for Relief in the state court proceedings and Magistrate

Judge Merz held that the claim had not been procedurally defaulted. That finding is not challenged

in the parties’ objections. Therefore, this Court will also consider the various subclaims on the

merits. 

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In his objections, Petitioner first asserts that Ohio’s death penalty scheme is unconstitutional

because it provides arbitrary and capricious imposition of the death penalty by allowing prosecutors

virtually uncontrolled indictment discretion. The Sixth Circuit has rejected the general argument

that Ohio’s scheme permits the imposition of the death penalty in an arbitrary and capricious

manner. See Buell, 274 F.3d at 367. Likewise, the Sixth Circuit has specifically rejected a

challenge to Ohio’s death penalty scheme based on the discretion afforded to prosecutors. See

Williams, 380 F.3d at 963. 

Petitioner next argues that Ohio’s criminal justice system imposes death in a racially

discriminatory manner. While this Court may be sympathetic to Petitioner’s argument, it is

foreclosed as an avenue of relief in this habeas proceeding by Supreme Court and Sixth Circuit

precedent. The Supreme Court has held that a statistical study suggesting racially-motivated

disparities in the selection and prosecution of death penalty cases is insufficient to support a claim

that the decisionmakers in a particular petitioner’s case acted with racial animus. See McClesky v.

Kemp, 481 U.S. 279, 297-99 (1987). Following McCleskey, the Sixth Circuit has rejected claims

similar to the one made here by Hawkins. See Smith v. Mitchell, 348 F.3d 177, 211 (6th Cir. 2003)

cert. denied 125 S.Ct. 278 (2004); Coleman v. Mitchell, 268 F.3d 417, 441-42 (6th Cir. 2001). 

Petitioner next asserts that Ohio’s scheme does not prohibit arbitrary and capricious

procedures because it does not specifically require the State to prove the absence of mitigating

factors or that death is the only appropriate penalty. The Sixth Circuit held the same arguments,

and similar related arguments, to be unavailing in Buell. See 274 F.3d at 367-68. 

Petitioner also asserts that the catch-all statutory mitigation factor listed in O.R.C.

§ 2929.04(B)(7)– “Any other factors that are relevant to the issue of whether the offender should be

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sentenced to death” (emphasis added)–violates the reliability component of the Eighth Amendment

because its poor wording allows a jury to consider proof of mitigation as a non-statutory

aggravating circumstance. The Sixth Circuit has rejected this argument where the petitioner did not

present any evidence that the state courts in his case, or in any Ohio case, have used the catch-all

mitigating factor as evidence of an aggravating circumstance instead. See Cooey, 289 F.3d at 926;

see also Bonnell v. Mitchel, 301 F. Supp. 2d 698, 746 (N.D. Ohio 2004) (stating that the argument

“defies logic”). Petitioner’s argument here fails for the same reasons. 

Petitioner has not challenged other aspects of the Report and Recommendations in regards

to the Twenty-Second Ground for Relief. The Court adopts those aspects of the Report and

Recommendation as if fully rewritten herein. Petitioner’s objections are overruled and the TwentySecond Ground for Relief is denied. 

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IV. CONCLUSION

For the reasons stated above, the Court holds that, with the exception of issues discussed in

regards to the Second Grounds for Relief, Petitioner Shawn Hawkins was not denied his

Constitutional right to a fundamentally fair trial by the alleged acts and omissions of the trial court,

the State prosecutors, or his attorneys either when considered on an individual basis or in light of

their cumulative effect. The Court OVERRULES Respondent’s Objections (doc. #207) and

OVERRULES Petitioner’s Objections (doc. #210). 

Pursuant to the Sixth Circuit’s instructions in DePew v. Anderson, 311 F.3d 742, 754 (6th

Cir. 2002), the Court hereby CONDITIONALLY GRANTS Petitioner’s Amended Writ of Habeas

Corpus (doc. #65) as to the Second Ground for Relief and vacates the unconstitutional sentence of

death unless the State of Ohio elects to reinitiate sentencing proceedings within 180 days of the date

of this Order. 

IT IS SO ORDERED.

___s/Susan J. Dlott______________

Susan J. Dlott

United States District Judge

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