Thompson v. Hudson

Filing 10

Report and Recommendation that the writ of habeas corpus should be denied as untimely filed as to claims three and four and procedurally defaulted as to all claims. Objections to R&R due by 10/15/2008. Signed by Magistrate Judge Kenneth S. McHargh on 10/1/08. (R,N)

Thompson v. Hudson

Doc. 10

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF OHIO E A S T E R N DIVISION

J IM M Y RAY THOMPSON, P e titio n e r v. S T U A R T HUDSON, W a rd e n , R esp on d en t

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1:07CV2954 JUDGE SARA LIOI (Magistrate Judge Kenneth S. McHargh)

REPORT AND RECOMMENDED DECISION OF MAGISTRATE JUDGE

M cH A R G H , MAG. J. T h e petitioner Jimmy Ray Thompson, Jr. ("Thompson") filed a petition pro se fo r a writ of habeas corpus arising out of his 2005 convictions and sentencing for rape, g ross sexual imposition, kidnapping, and other crimes, in the Cuyahoga County (O h io ) Court of Common Pleas. (Doc. 1.) In his petition, Thompson raises four g ro u n d s for relief: 1. The petitioner's more than minimum and consecutive sentences v io la t e Blakely v. Washington, 542 U.S. 296 (2004) and is otherwise co n tra ry to law. 2. The trial court's ongoing objection to any consideration by the Ohio A d u l t Parole Authority or parole board to any reduction in sentence or e a rly release or other programs which would allow petitioner to be re le a s e d into the community is not authorized by law, is a violation of d u e process and equal protection under the Fourteenth Amendment of th e U.S. Constitution and increases the legislated maximum penalty to o n e of life without parole. The trial court's order also violates the se p a ra tio n of powers as provided in the U.S. and Ohio Constitutions.

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3 . The indictment violated the Fifth, Sixth and Fourteenth A m e n d m e n ts to the U.S. Constitution. 4. Petitioner's arrest, the seizure and search of his automobile, the sta te m e n ts taken from him and the search of his residence violates the F o u rth and Fourteenth Amendments to the Federal Constitution. (Doc. 1, at § 12.)

I. FACTUAL AND PROCEDURAL BACKGROUND T h e Ohio Court of Appeals set forth the following factual background: On July 31, 2004, an Olmsted Falls police officer arrested appellant for op era tin g a vehicle while intoxicated (OVI) after appellant backed his p ick u p truck into another vehicle. Before the police towed and im p ou n d ed appellant's truck incidental to his arrest, another police o f f ic e r took a routine inventory of the vehicle's contents. Police also se a r ch e d appellant in connection with this arrest. The items found on a p p e lla n t and in his truck included graphic child pornography, which, a c co rd in g to police, was homemade rather than commercial in nature. A lso among the items confiscated from appellant's truck were a baggie of su g a r e d cereal; two empty condom boxes; a Barbie Wish List magazine; cra y o n s and stickers; one pair of girl's underwear; and letters written by y ou n g children. T h e pornographic images, as well as the sex and child related items, se rv e d as the basis for the police obtaining a search warrant for a p p e lla n t's home. The warrant led to the discovery of thousands of o b s ce n e images of children, including videotapes and pictures of a p p ella n t engaged in vaginal and anal intercourse with at least one girl u n de r the age of ten. O n October 6, 2004, appellant was indicted for 47 felony counts as follo w s: 7 counts of rape by force of a child less than 10 years old in v i o la t io n of [Ohio Rev. Code § ] 2907.02; 8 counts of gross sexual i m p o s i ti o n in violation of R.C. 2907.05; 9 counts of pandering sexually o r ie n t e d matter involving a minor in violation of R.C. 2907.322; 5 counts o f kidnapping with a specification of sexual motivation in violation of R .C . 2905.01 and 2941.147; 17 counts of illegal use of minor in

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n u d i ty - o ri e n t e d material or performance in violation of R.C. 2907.323; a n d 1 count of possessing criminal tools in violation of R.C. 2923.24. A p p ella n t filed a motion to suppress the evidence, which the court d e n ie d on February 3, 2005. On March 8, 2005, appellant entered a no con test plea, and the court found him guilty of all 47 counts. On April 2 1 , 2005, the court sentenced appellant to the following: life in prison for ra p e ; 15 months for gross sexual imposition; 6 years for second-degree f e lo n y pandering; 9 years for kidnapping; 6 years for illegal use of a m in o r ; 15 months for fourth degree felony pandering; and 10 months for p o sse ssin g criminal tools. The court ordered both 6-year terms to be se rv ed consecutive to the life-in-prison term. All other terms were to run c o n c u r re n t ly with one another. Appellant's aggregate sentence is life p l u s 12 years.

(D o c. 6, RX 12, at 2-4; State v. Thompson, No. 86357, 2006 WL 951447, at *1 (Ohio C t . App. Apr. 13, 2006). Thompson filed a timely appeal of his conviction and sentence, raising the fo llo w in g assignments of error: 1. The appellant's more than minimum and consecutive sentences v io la t e Blakely v. Washington, (2004) 542 U.S. 296, R.C. 2929.14 and is o th e rw ise contrary to law. 2. The trial court's ongoing objection to any consideration by the Ohio A d u l t Parole Authority or Parole Board to any reduction in sentence or e a rly release or other programs which would allow the appellant to be re le a s e d into the community is not authorized by law, is a violation of d u e process and equal protection under the Fourteenth Amendment of th e U.S. Constitution and increases the legislated maximum penalty to o n e of life without parole. The trial court's order violates the separations of powers provided by the U.S. and Ohio Constitutions. 3. The indictment violated the Fifth, Sixth and Fourteenth Amendments o f the U.S. Constitution. 4. The appellant's arrest, the seizure and search of his automobile, the sta te m e n ts taken from him and the search of his residence violates the F o u rth and Fourteenth Amendments of the federal constitution.

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(D o c. 6, RX 10.) The court of appeals affirmed his conviction on Apr. 13, 2006, but re m a n de d the case for re-sentencing consistent with State v. Foster, 109 Ohio St.3d 1, 8 4 5 N.E.2d 470 (2006), cert. denied, 127 S.Ct. 442 (2006). (Doc. 6, RX 12, at 4-5; T h o m p so n , 2006 WL 951447, at *2.) On remand, the trial court re-sentenced T h o m p so n to life plus six years. (Doc. 6, RX 13, journal entry dated Aug. 31, 2006.) On Mar. 26, 2007, Thompson filed a motion for leave to file a delayed appeal in th e Ohio Supreme Court. (Doc. 6, RX 14-15.) In his brief, Thompson set forth the fo llo w in g propositions of law: 1. The appellant's more than minimum and consecutive sentences v io la t e Blakely v. Washington (2004), 542 U.S. 296, R.C. 2929.14 and is o th e rw ise contrary to law. 2. The trial court's ongoing objection to any consideration by the Ohio A d u l t Parole Authority or parole board to any reduction in sentence or e a rly release or other programs which would allow the appellant to be re le a s e d into the community is not authorized by law, is a violation of d u e process and equal protection under the Fourteenth Amendment of th e U.S. Constitution and increases the legislated maximum penalty to o n e of life without parole. The trial court's order violates the separations of powers provided by the U.S. and Ohio Constitutions. 3. The indictment violated the Fifth, Sixth and Fourteenth Amendments o f the U.S. Constitution. 4. The appellant's arrest, the seizure and search of his automobile, the sta te m e n ts taken from him and the search of his residence violates the F o u rth and Fourteenth Amendments of the Federal Constitution. (Doc. 6, RX 15.) On May 16, 2007, the state high court denied leave to file a delayed a p p e a l, and dismissed the appeal. (Doc. 6, RX 16; State v. Thompson, 113 Ohio St.3d 1 5 1 1 , 866 N.E.2d 510 (2007).)

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M ea n w h ile, several days after he filed his motion for a delayed appeal, T h o m p so n also filed a motion in the trial court to withdraw his no contest pleas. (Doc. 6, RX 17.) The motion to withdraw was denied on March 29, 2007. (Doc. 6, RX 1 8 .) Thompson filed a notice of appeal which was docketed on May 1. (Doc. 6, RX 1 9 .) In his brief, he appealed the denial of the motion to withdraw, presenting a sin g le assignment of error: The trial court's failure to grant appellant's motion to withdraw his no co n t est pleas deprived appellant of his right to a jury trial as guaranteed b y the Sixth Amendment to the U.S. Constitution and Article I, Section 1 0 of the Ohio Constitution. (Doc. 6, RX 20.) The court of appeals dismissed the appeal sua sponte, "for failure to fil e a timely notice of appeal." (Doc. 6, RX 21.) Thompson filed a motion for re co n sid e ra tio n under Ohio App. R. 26(A). (Doc. 6, RX 22.) The motion was denied on A u g . 7, 2007. (Doc. 6, RX 23.) On Sept. 27, 2007, Thompson filed this petition for a writ of habeas corpus. (Doc. 1.)

II. HABEAS CORPUS REVIEW T h is case is governed by the Antiterrorism and Effective Death Penalty Act of 1 9 9 6 (AEDPA), 28 U.S.C. § 2254, which provides the standard of review that federal co u r ts must apply when considering applications for a writ of habeas corpus. Under th e AEDPA, federal courts have limited power to issue a writ of habeas corpus with

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re sp e ct to any claim which was adjudicated on the merits by a state court. The S u p re m e Court, in Williams v. Taylor, provided the following guidance: U n d e r § 2254(d)(1), the writ may issue only if one of the following two co n d itio n s is satisfied -- the state-court adjudication resulted in a d e cisio n that (1) "was contrary to ... clearly established Federal law, as d e te rm in e d by the Supreme Court of the United States," or (2) "involved a n unreasonable application of ... clearly established Federal law, as d e te rm in e d by the Supreme Court of the United States." Under the "co n tra ry to" clause, a federal habeas court may grant the writ if the sta te court arrives at a conclusion opposite to that reached by this Court o n a question of law or if the state court decides a case differently than th is Court has on a set of materially indistinguishable facts. Under the "u n re a so n a b le application" clause, a federal habeas court may grant the w rit if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to th e facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362, 412-13 (2002). See also Lorraine v. Coyle, 291 F.3d 4 1 6 , 421-422 (6th Cir. 2002), cert. denied, 538 U.S. 947 (2003). A state court decision is "contrary to" clearly established Supreme Court p rece d en t "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Williams, 529 U.S. at 405. See also Price v. Vincent, 538 U .S . 634, 640 (2003). A state court decision is not unreasonable simply because the federal court con side rs the state decision to be erroneous or incorrect. Rather, the federal court m u st determine that the state court decision is an objectively unreasonable a p p lica tio n of federal law. Williams, 529 U.S. at 410-12; Lorraine, 291 F.3d at 422. Thompson has filed his petition pro se. The pleadings of a petition drafted by a p ro se litigant are held to less stringent standards than formal pleadings drafted by

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la w y e rs , and will be liberally construed. Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2 0 0 1 ) (citing Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972) (p e r curiam)). Other than that, no special treatment is afforded litigants who decide to proceed pro se. McNeil v. United States, 508 U.S. 106, 113 (1993) (strict adherence to procedural requirements); Jourdan v. Jabe, 951 F.2d 108 (6th Cir. 1991); Brock v. H en d ersh ott , 840 F.2d 339, 343 (6th Cir. 1988).

III. STATUTE OF LIMITATIONS T h e respondent argues that the petition is barred because it was filed after the st a tu te of limitations had expired. (Doc. 6, at 10-12.) The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a state prisoner seeking a federal writ of habeas corpus to file his petition within one y ea r after his state conviction has become "final." Carey v. Saffold, 536 U.S. 214, 216 (2 0 0 2 ) (citing 28 U.S.C. § 2244(d)(1)(A)). The conviction becomes final "by the con clu sion of direct review or the expiration of the time for seeking such review." 28 U .S .C . § 2244(d)(1)(A). Thus, the one-year statute of limitations does not begin to run u n til all direct criminal appeals in the state system are concluded, followed by either co m p le tio n or denial of certiorari before the United States Supreme Court, or the e x p ira tio n of the time allowed (90 days) for filing for certiorari. Clay v. United States, 5 3 7 U.S. 522, 528 n.3 (2003); Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002); W illia m s v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001), cert. denied, 534 U.S. 924 (2001) (c itin g cases).

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H o w e v e r, the beginning of the one-year statute of limitations period is based o n the content of the petitioner's claims. Bachman v. Bagley, 487 F.3d 979, 984 (6th C ir. 2007). A. Judgment of conviction The third and fourth grounds of the petition concern the judgment of con v iction . The court of appeals affirmed Thompson's conviction in a journal entry d a te d Apr. 24, 2006. (Doc. 6, RX 12.) Thompson did not seek timely review by the O h i o Supreme Court within 45 days, pursuant to Ohio Supreme Court Rule of P ra ctice II, Section 2(A)(1). Thus, Thompson's conviction became "final" within the m e a n in g of AEDPA on June 9, 2006. Searcy v. Carter, 246 F.3d 515, 517 (6th Cir.), ce rt. denied, 534 U.S. 905 (2001). Accordingly, the statue of limitations for filing his h a b e a s petition would have expired one year later, June 9, 2007. Thompson filed the motion for leave to file a delayed appeal on March 26, 2007. (Doc. 6, RX 14.) Filing a motion for a delayed appeal tolls the running of a pending, u n e x p ire d one-year limitations period, although it will not "revive" the statute, or ca u se it to begin running anew. DiCenzi v. Rose, 452 F.3d 465, 468 (6th Cir. 2006); S ea rcy , 246 F.3d at 519; Buda v. Eberlin, No. 5:06cv1807, 2006 WL 2711792 (N.D. O h io Sept. 21, 2006). Thus, 290 days of the one-year period had already run when the m o tio n was filed, and 75 days remained. The state high court denied leave to file a delayed appeal on May 16, 2007, th u s the limitations period resumed running. (Doc. 6, RX 16.) Thompson did not file h i s habeas petition until Sept. 27, 2007, 134 days later. Therefore, Thompson failed

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to file his habeas petition within the one year limitation period as to these claims, and th e third and fourth grounds would be barred as untimely filed. B. Re-sentencing T h e first two grounds of the petition concern Thompson's sentencing. The oney e a r limitations period for a claim that challenges a re-sentencing judgment begins on th e date that the re-sentencing judgment became final, rather than the date that the o rig in a l conviction became final. Bachman, 487 F.3d at 982; Linscott v. Rose, 436 F .3 d 587, 591 (6th Cir. 2006); Frazier v. Moore, No. 2:05CV1112, 2006 WL 3146436, a t *7 (S.D. Ohio Oct.31, 2006), aff'd, 2007 WL 3037256 (6th Cir. Oct. 17, 2007). On Aug. 31, 2006, Thompson was re-sentenced on remand. (Doc. 6, RX 13.) Under Ohio law, Thompson had 30 days within which to file his direct appeal after th e date of sentencing. Ohio R. App. P. 4(A). Since he did not file a timely direct a p p e a l, his conviction became final 30 days after the journal entry of sentencing. Thus, the habeas statute began to run on Oct. 1, 2006. See, e.g., Frazier, 2006 WL 3 1 4 6 4 3 6 , at *7; Goodballet v. Mack, 266 F.Supp.2d 702, 705 (N.D. Ohio 2003). As noted earlier, Thompson did not file the motion for leave to file a delayed a p p e a l until March 26, 2007. (Doc. 6, RX 14.) Filing a motion for a delayed appeal to lls the running of the one-year limitations period. DiCenzi, 452 F.3d at 468; Searcy, 2 4 6 F.3d at 519. Thus, 176 days of the one-year period had already run when the m o tio n was filed, and 189 days remained. The state high court denied leave to file a delayed appeal on May 16, 2007, th u s the limitations period resumed running. (Doc. 6, RX 16.) The period would have

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ex p ired 189 days later, on Nov. 21, 2007. Thompson filed his habeas petition on Sept. 2 7 , 2007. Therefore, the claims concerning re-sentencing are not barred by the st a tu te of limitations.

IV. PROCEDURAL DEFAULT The respondent also argues that Thompson's claims are procedurally defaulted. (Doc. 6, at 14-20.) A habeas petitioner cannot obtain relief unless he has completely exhausted h is available state remedies. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Buell v . Mitchell, 274 F.3d 337, 349 (6th Cir. 2001) (citing Coleman v. Mitchell, 244 F.3d 5 3 3 , 538 (6th Cir.), cert. denied, 534 U.S. 977 (2001)). The exhaustion requirement is sa tisfied when the highest court in the state has been given a full and fair o p p o rtu n ity to rule on the petitioner's claims. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1 9 9 4 ) (citing Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990)). A petitioner ca n n ot circumvent the exhaustion requirement by failing to comply with state p ro ce d u ra l rules. Coleman, 501 U.S. at 731-732; Buell, 274 F.3d at 349. The court considers four factors to determine whether a claim has been p roce d u ra lly defaulted: (1) the court must determine whether there is a state p ro ce d u r a l rule that is applicable to the petitioner's claim, and whether the petitioner fa iled to comply with the rule; (2) the court must decide whether the state courts a ctu a lly enforced the procedural sanction; (3) the court must decide whether the state p roce d u ra l forfeiture is an adequate and independent state ground on which the state

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c a n rely to foreclose review of the federal claim; and, (4) the petitioner must d e m o n stra te that there was cause for him not to follow the procedural rule, and that h e was actually prejudiced by the alleged constitutional error. Buell, 274 F.3d at 348 (citin g Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)); Jacobs v. Mohr, 265 F.3d 4 0 7 , 417 (6th Cir. 2001) (quoting Maupin). Thompson did not file a timely appeal to the Ohio Supreme Court, and the co u rt denied his motion for leave to file a delayed appeal. (Doc. 6, RX 14-16.) The O h i o Supreme Court's denial of a motion for leave to file a delayed appeal is a p ro ce d u ra l ruling sufficient to bar habeas review. Smith v. Ohio, Dept. of Rehab. and C orr., 463 F.3d 426, 431-432 (6th Cir. 2006); Bonilla v. Hurley, 370 F.3d 494, 497 (6th C ir. 2004) (per curiam), cert. denied, 543 U.S. 989 (2004). Such a procedural default i s "an adequate and independent ground on which the state can rely to foreclose rev iew of his federal constitutional claims." Shabazz v. Ohio, 149 F.3d 1184, 1998 WL 3 8 4 5 5 9 , at *1 (6th Cir. June 18, 1998) (TABLE, text in WESTLAW). When a petitioner has defaulted his federal claim in state court pursuant to an in d e p e n d e n t and adequate state procedural rule, habeas review is barred unless the p etition er can demonstrate cause for the default and actual prejudice, or demonstrate th a t failure to consider the claims will result in a fundamental miscarriage of justice. Bonilla, 370 F.3d at 497; Buell, 274 F.3d at 348. "Cause" for a procedural default is o rd in a rily shown by "some objective factor external to the defense" which impeded the p e tit io n e r's efforts to comply with the state's procedural rule. Coleman, 501 U.S. at 7 5 3 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

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T h o m p so n contends that his failure to file a timely notice of appeal was caused b y ineffective assistance of counsel. (Doc. 9, at 7-8; see also doc. 9, at 4, and doc. 6, RX 1 5 , at 3.) He claims that he believed that appellate counsel would be filing an appeal to the Ohio Supreme Court. On Sept. 6, 2006, Thompson learned that appellate co u n se l had not filed the appeal. (Doc. 9, at 4.) He filed a motion for leave to file a d e la y e d appeal on Mar. 26, 2007, almost seven months later. (Doc. 6, RX 14-15.) Ineffective assistance of counsel can serve as cause to overcome procedural d e fa u lt. Smith, 463 F.3d at 432 (citing Deitz v. Money, 391 F.3d 804, 809 (6th Cir. 2 0 0 4 )). An ineffective assistance of counsel claim asserted as cause for another p ro ce d u ra lly defaulted federal claim can itself be procedurally defaulted. Edwards v. C a r p e n te r, 529 U.S. 446, 453 (2000). "A claim of ineffective assistance of counsel m u s t be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Deitz, 391 F.3d at 809 (citing Edwards, 5 2 9 U.S. at 452). Claims of ineffective assistance of appellate counsel must be raised in a motion fo r reconsideration before the Ohio Court of Appeals. Monzo v. Edwards, 281 F.3d 5 6 8 , 577 (6th Cir. 2002) (citing State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1 9 9 2 )); Ohio App. R. 26(B). Such a motion must be filed in the court of appeals w ith in 90 days of the appellate judgment. State v. Lamar, 102 Ohio St.3d 467, 468, 8 1 2 N.E.2d 970 (2004) (per curiam), cert. denied, 543 U.S. 1168 (2005); State v. R ed d ick , 72 Ohio St. 3d 88, 90, 647 N.E.2d 784, 786 (1995) (per curiam). Thompson d id not raise this issue before the state courts, thus it cannot serve as cause.

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B e ca u se Thompson has not shown cause, it is unnecessary to consider the issue o f prejudice. Murray, 477 U.S. at 494; Shabazz, 1998 WL 384559, at *1.

V. SUMMARY T h e petition for a writ of habeas corpus should be denied as untimely filed, as to claims three and four, and procedurally defaulted as to all claims.

RECOMMENDATION I t is recommended that the petition be denied.

D a te d :

Oct. 1, 2008

/s/ Kenneth S. McHargh Kenneth S. McHargh United States Magistrate Judge

A N Y OBJECTIONS to this Report and Recommendation must be filed with the C le rk of Courts within ten (10) days of receipt of this notice. Failure to file objections w ith in the specified time WAIVES the right to appeal the District Court's order. See T h om a s v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1 9 8 1 ).

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