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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

SHAWN HAWKINS,

:

Petitioner, Case No. C-1-97-296

: District Judge Susan J. Dlott

-vs- Chief Magistrate Judge Michael R. Merz

RALPH COYLE, Warden,

:

Respondent.

REPORT AND RECOMMENDATIONS ON CERTIFICATE OF APPEALABILITY

This capital habeas corpus case is before the Court on Petitioner’s Request for a Certificate of

Appealability (Doc. No. 221) and Respondent’s Memorandum in Opposition (Doc. No. 223).

A person in custody upon a state conviction seeking to appeal an adverse ruling on a petition

for writ of habeas corpus in the district court must obtain a certificate of appealability before

proceeding. 28 U.S.C. §2253 as amended by the Antiterrorism and Effective Death Penalty Act of

1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), provides in pertinent part:

(c)

(1) Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals

from--

(A) the final order in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State court;

or

(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only

if the applicant has made a substantial showing of the denial of a

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constitutional right.

(3) The certificate of appealability under paragraph (1) shall indicate

which specific issue or issues satisfy the showing required by

paragraph (2).

District courts have the power to issue certificates of appealability under the AEDPA in §2254 cases.

Lyons v. Ohio Adult Parole Authority, 105 F. 3d 1063 (6th Cir. 1997); Hunter v. United States, 101

F. 3d 1565 (11th Cir. 1996)(en banc). Likewise, district courts are to be the initial decisionmakers

on certificates of appealability under §2255. Kincade v. Sparkman, 117 F. 3d 949 (6th Cir.

1997)(adopting analysis in Lozada v. United States, 107 F. 3d 1011, 1017 (2d Cir. 1997). Issuance

of blanket grants or denials of certificates of appealability is error, particularly if done before the

petitioner requests a certificate. Porterfield v. Bell, 258 F. 3d 484(6th Cir. 2001); Murphy v. Ohio,

263 F. 3d 466 (6th Cir. 2001). 

To obtain a certificate of appealability, a petitioner must show at least that “jurists of reason

would find it debatable whether the petition states a valid claim of denial of a constitutional right.”

Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604, 146 L. Ed. 2d 542 (2000). That is,

it must find that reasonable jurists would find the district court’s assessment of the petitioner’s

constitutional claims debatable or wrong. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). If the

district court dismisses the petition on procedural grounds without reaching the constitutional

questions, the petitioner must also show that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S. Ct. at 1604. The

procedural issue should be decided first so as to avoid unnecessary constitutional rulings. Slack, 529

U.S. at 485, 120 S. Ct. at 1604, citing Ashwander v. TVA, 297 U.S. 288, 347, 56 S. Ct. 466, 80 L.

Ed. 688 (1936)(Brandeis, J., concurring). The first part of this test is equivalent to making a

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substantial showing of the denial of a constitutional right, including showing that reasonable jurists

could debate whether the petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further, Slack v. McDaniel, 529 U.S.

473 at 484 (2000), quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983). The relevant holding in

Slack is as follows:

[W]hen the district court denies a habeas petition on procedural

grounds without reaching the prisoner's underlying constitutional

claim, a COA should issue (and an appeal of the district court's order

may be taken) if the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a valid claim of the

denial of a constitutional right, and that jurists of reason would find

it debatable whether the district court was correct in its procedural

ruling.

529 U.S. at 478.

The standard is higher than the absence of frivolity required to permit an appeal to

proceed in forma pauperis. Id. at 893.

Obviously the petitioner need not show that he should prevail on the

merits... Rather, he must demonstrate that the issues are debatable

among jurists of reason; that a court could resolve the issues [in a

different manner]; or that the questions are 'adequate to deserve

encouragement to proceed further.'

Id. n.4. Accord, Miller-El v. Cockrell, 537 U.S. 322, (2003). A certificate of appealability is not

to be issued pro forma or as a matter of course. Id. at 1040. Rather, the district and appellate courts

must differentiate between those appeals deserving attention and those which plainly do not. Id. A

blanket certificate of appealability for all claims is improper, even in a capital case. Frazier v.

Huffman, 348 F. 3d 174 (6th Cir. 2003), citing Porterfield v. Bell, 258 F. 3d 484 (6th Cir. 2001).

The Petition in this case pleads twenty-seven grounds for relief. The Magistrate Judge

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recommended granting relief on one ground and denying it on the remaining twenty-six and District

Judge Dlott adopted that recommendation (Doc. No. 216). Petitioner seeks to appeal only seven of

the twenty-six grounds on which he was denied relief. The grounds are considered seriatim below.

Third Ground for Relief

In his Third Ground for Relief, Petitioner asserted he was prejudiced by the repeated

misconduct of the State regarding Keith Miree. In rejecting this Ground for Relief, Judge Dlott

analyzed separately the many sub-claims Petitioner made in support of this Ground and on which

Petitioner had objected to the Magistrate Judge’s recommended disposition.

In now seeking a certificate of appealability, Petitioner emphasizes that the prosecutor’s

misconduct in placing Hawkins’ supposed confession to Miree before the jury without intending to

call Miree planted a misimpression in the jury’s mind which striking the testimony and a curative

instruction could not erase. While the Court remains persuaded that those curative measures were

sufficient, it concedes that a reasonable jurist could disagree. Petitioner should, therefore, be granted

a certificate of appealability on this sub-claim.

Petitioner seeks to appeal also from the Court’s decision that there is no proof that Miree took

an active role in eliciting statements from Hawkins. The Memorandum argues that “Miree’s sworn

and unrefuted affidavit shows that the police took an active role to elicit Miree’s help to use against

Hawkins.” (Memorandum at 5.) However, Petitioner provides no record reference to any such

affidavit which, in any event, is uncross-examined hearsay; Miree did not testify at the evidentiary

hearing in this case. No certificate of appealability should issue on this sub-claim.

Finally, Petitioner seeks to appeal from this Court’s denial of relief on the portion of this Third

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Ground for Relief which claimed the State failed to disclose to Petitioner’s counsel that Petitioner, in

speaking with Miree, had denied any involvement in the murders. The Magistrate Judge recommended

denying this claim because the information was readily available from Hawkins himself; Judge Dlott

agreed. In his Motion, Petitioner makes no response to this conclusion and should accordingly not be

granted a certificate of appealability on this portion of Ground Three.

Fourth Ground for Relief

In his Fourth Ground for Relief, Petitioner claimed that the State’s misconduct with respect to

the bloody fingerprint denied him his constitutional rights. The Court concluded in denying this

Ground for Relief that the information which Petitioner asserts would have impeached this

identification evidence which was not disclosed to Petitioner was not material.

While the Court remains persuaded that its conclusion is correct, considerations of judicial

modesty suggest that other reasonable jurists might disagree. To put it another way, the problems with

this evidence are not so clearly immaterial that a judge who found them material would be acting

unreasonably. A certificate of appealability should be granted on the Fourth Ground for Relief.

Seventh Ground for Relief

In his Seventh Ground for Relief, Petitioner claimed numerous violations of Brady v.

Maryland, 373 U.S. 83 (1963), all of which were rejected by the Magistrate Judge and District Judge

Dlott.

With respect to the undisclosed information about Henry Brown, the State’s eyewitness, the

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“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.” (Order, Doc.

No. 216 at 68).

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Court remains persuaded of the correctness of its conclusions, but concludes that reasonable jurists

could disagree. Petitioner should be granted a certificate of appealability on this sub-claim, except for

the results of the polygraph tests on Brown, which would never have been admissible.

With respect to the undisclosed information about Howard Johnson and Robbie Burns, the

Court concluded that none of that information was material because neither of them was a viable

suspect in the murders. In arguing for appealability on this sub-claim, Petitioner merely re-argues the

alleged inconsistencies within Johnson’s different statements. Those inconsistencies, however, do not

show that he was a viable alternative suspect. A certificate of appealability should be denied on this

sub-claim.

With respect to the blood found near the driver’s side footrest, the jury was plainly told that

it was in a place where the shoe of someone in the driver’s seat would have been in it and that

Hawkins’ shoes tested negative for blood. The Court is not persuaded that one more piece of evidence

that it looked like a shoe print was material and Petitioner should be denied a certificate of

appealability on this sub-claim.

In adopting the Magistrate Judge’s recommendation on the sub-claim related to the .25 caliber

gun box, Judge Dlott expressed some possible reservation.1

 While the Court ultimately concluded it

was not material, reasonable jurists could differ and a certificate of appealability should be granted on

this sub-claim.

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Eleventh Ground for Relief

In his Eleventh Ground for Relief, Petitioner asserts that denial of a mistrial based on

prosecutorial misconduct denied him his constitutional rights. Petitioner’s claim here is not that any

one of these acts of misconduct required a mistrial, but that their cumulative effect was sufficiently

prejudicial that a mistrial was required.

While the Court remains persuaded of its conclusion that failure to declare a mistrial was not

contrary to or an unreasonable application of clearly established federal law, it concedes that

reasonable jurists could disagree, especially in light of the trial judge’s immediate criticism of the

injection of the supposed confession to Miree and the Ohio Supreme Court’s criticism of the

prosecutor’s injection of personal opinion. A certificate of appealability should be granted on this

Ground for Relief.

Twenty-Fifth Ground for Relief

In his Twenty-Fifth Ground for Relief, Petitioner asserts that the State’s misconduct with

respect to Henry Brown violated his constitutional rights. He particularly complains of the failure to

disclose Brown’s juvenile record, information learned from Brown during meetings in 1989, and his

failure of two polygraph tests.

For the reasons set forth in Judge Dlott’s decision, the Court remains persuaded that none of

these failures impeded counsel’s ability to thoroughly cross-examine Henry Brown. The jury was told

by the prosecutor from voir dire forward that Henry Brown had made inconsistent statements and

indeed been shown to be a liar. No reasonable jurist would conclude that the additional information

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which Petitioner now claims he should have had would have made a difference in the trial. A

certificate of appealability should be denied on this Ground for Relief.

Twenty-Sixth Ground for Relief

In his Twenty-Sixth Ground for Relief, Petitioner claims that preparation and consideration

by the trial judge of a presentence investigation report in this case which Petitioner’s counsel did not

see violated his constitutional rights.

While the parties stipulated that the PSI was prepared in violation of Ohio law and the Court

has found that Petitioner’s due process rights were violated thereby, the Court also found the claim was

procedurally defaulted and Petitioner could not show sufficient prejudice to overcome the default

because the jury and both appellate courts, in weighing the aggravating circumstances against the

mitigating factors, did not see this PSI. Reasonable jurists would not disagree with that conclusion.

Therefore, Petitioner should be denied a certificate of appealability on this Ground for Relief.

Twenty-Seventh Ground for Relief

In his Twenty-Seventh Ground for Relief, Petitioner asserts the state trial court violated his

constitutional rights when it refused to disclose and seal Henry Brown’s juvenile records.

In adopting the Magistrate Judge’s recommendation to deny this Ground for Relief, Judge Dlott

concluded that defense counsel had sufficient information about Henry Brown to cross-examine him

effectively and that the additional information in his juvenile records would not have added

significantly to that information. 

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While the Court remains persuaded of the correctness of its conclusion, it concedes that

reasonable jurists could disagree. Therefore Petitioner should be granted a certificate of appealability

on this Ground for Relief.

November 29, 2005.

s/ Michael R. Merz

 Chief United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written

objections to the proposed findings and recommendations within ten days after being served with

this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(e), this period is automatically

extended to thirteen days (excluding intervening Saturdays, Sundays, and legal holidays) because

this Report is being served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(B), (C),

or (D) and may be extended further by the Court on timely motion for an extension. Such objections

shall specify the portions of the Report objected to and shall be accompanied by a memorandum of

law in support of the objections. If the Report and Recommendations are based in whole or in part

upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for

the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate

Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond

to another party's objections within ten days after being served with a copy thereof. Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See United States v.

Walters, 638 F. 2d 947 (6th Cir., 1981); Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d

435 (1985).

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