Coleman v. Beighter

Filing 34

Order and Opinion Adopting Report and Recommendation and denies the Defendant's motion to vacate his sentence under 28 U.S.C. § 2254. (Related documents # 1 , 28 ). Judge James S. Gwin on 7/21/2014. (P,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
EDDIE COLEMAN,
:
:
Petitioner,
:
:
vs.
:
:
MAGGIE BEIGHTER, Warden,
:
:
Respondent.
:
:
-------------------------------------------------------

CASE NO. 1:11-CV-161

ORDER & OPINION
[Resolving Doc. No. 1, 31, 32 ]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Eddie Coleman petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Magistrate
Judge McHargh recommends that Coleman’s petition be denied.1/ Petitioner objects to Judge
McHargh’s recommendation.
In support of his petition, Petitioner Coleman says the state trial court (1) failed to provide
him an adequate opportunity to challenge a search and seizure and (2) that he was denied effective
assistance of counsel.2/
Consistent with 28 U.S.C. § 636(b)(1), the Court has reviewed de novo those portions of the
Report and Recommendation (R&R) to which Petitioner Coleman objected. The Court concludes
that the state court did not violate clearly established federal law, ADOPTS the R&R, and DENIES
Coleman’s petition.
I. Factual and Procedural Background
In habeas corpus proceedings from state convictions, factual determinations made by the state

1/

Doc. 28 at 21.

2/

Doc. 31; Doc. 32.

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Gwin, J.
courts are presumed correct.3/ The Ohio Court of Appeals summarized the facts as follows:
On August 17, 2007, Coleman was indicted on the following four counts:
possession of drugs (count 1), drug trafficking (count 2), possession of drugs (count
3), and possessing criminal tools (count 4).
Coleman, who was driving a black GMC Sierra, Ohio license plate DVU8000, was
arrested on May 31, 2007, in the driveway at 1753 Strathmore Avenue (Strathmore),
in East Cleveland, Ohio, as two search warrants were being simultaneously executed
by Cleveland police narcotics detectives. One search warrant had been obtained for
the residence on Strathmore; the second search warrant had been obtained for the
residence at 1957 Revere Road, Cleveland Heights, Ohio (Revere). The search
warrants were obtained as a result of an investigation of Coleman during the month
of May 2007.
On September 21, 2007, Coleman filed a motion to suppress and for the return of
illegally seized property. His motion challenged the statements contained in the two
affidavits in support of the search warrants made by the affiant, a narcotics detective
who had signed and subscribed both affidavits. The detective stated in the affidavits
that “after a brief period of time a gold-colored Cadillac Escalade truck with Ohio
license plates ECF7159 ” arrived at 1753 Strathmore.
In support of his motion to suppress, Coleman offered his own affidavit in which he
stated that “[he] is the defendant herein. * * * [he] owns a ‘gold colored Cadillac
Escalade truck,’ as alleged in the affidavit * * * for 1753 Strathmore Avenue in East
Cleveland, Ohio.” He further stated, “I do hereby deny this vehicle had, on the dates
indicated as to when the alleged sale occurred, any license plates on it other than the
30-day tag-issued for the [sic] it.” Lastly, he stated that “[t]he upshot of the thrust
of this affidavit is that the affiant is less then [sic] honest when he alleges my ‘gold
colored Escalade,' while bearing the indicated license plates, was involved in a drug
transaction.”
On October 15, 2007, Coleman filed a motion for production of alleged informant
and a motion for a Franks hearing. On the same day, the State filed its response to
Coleman’s motion to suppress and for the return of illegally seized property.
Coleman filed his reply to the State's response to defendant's motion to suppress on
November 1, 2007.
In Coleman's reply, he included an affidavit from an agent of Central Cadillac,
which stated that Central Cadillac's records indicate that Coleman picked up his
3/

28 U.S.C. § 2254(e)(1).

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plates for the 2007 Escalade, VIN 1GYFK63887R356625, Plates ECF7159, on June
8, 2007. Also in the reply brief is an affidavit executed by Coleman, in which he
stated “Eddie Coleman, the Defendant, hereby by this writing swears, and avers, that
contrary to the statements in the affidavits relied on for the issuance of warrants to
search homes at 1753 Strathmore Avenue, East Cleveland, and 1957 Revere Road,
Cleveland Heights, Ohio, in which it was said that he had operated a motor vehicle
bearing license plates ECF7159 within 72 hours of May 25, 2007, is totally false.
Indeed as these statements in the affidavits to the contrary notwithstanding, the facts
will show the license plates ECF7159, although issued for him, i.e., Eddie Coleman,
on May 22, 2007, were not placed on the vehicle before June 8, 2007. This was the
day they were retrieved by him from Central Cadillac.”
On November 20, 2007, the court conducted a hearing at which it adopted the
State’s position that there was no need for an evidentiary hearing on Coleman’s
motions. The trial court determined that, according to Ohio cases interpreting the
seminal case of Franks, there was no need for an evidentiary hearing if, after
excluding material in the affidavit alleged to have been false, remaining portions of
the affidavit established probable cause to search.
Coleman argued that he could not have been operating a vehicle with the license
plates set forth in the affidavits executed by the narcotics detective because he did
not pick up his permanent license plates, ECF7159, until June 8, 2007. Coleman
further argued that the portion of the affidavits containing the statement from the
confidential reliable informant (CRI) that he [Coleman] was involved in a drug
transaction when operating a particular Cadillac was also false. Coleman
unsuccessfully argued that his statements in the affidavit warranted an evidentiary
hearing under Franks.
The court stated on the record its ruling on that portion of Coleman's motion seeking
to suppress the search of the two residences and the property seized therein based
on the statements in the search warrants as follows:
“THE COURT:
And the motion to suppress that the search-based upon the
search warrant is denied. With respect to some kind of an
illegal arrest argument, I’m going to ask the counsels [sic] to
brief that and go ahead and set a hearing. I’ll have you pick
a date with my bailiff that comports with both your
schedules[,] but the motion to suppress the search based upon
the warrant is denied. The Court has reviewed the warrant and
there's sufficient probable cause.

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MR. WILLIS:
We’re asking under Rule 12(F) that the Court articulate
whatever findings that it deems to be appropriate in
connection with its denial of the motion.
THE COURT:
Counsels [sic] could feel free to submit proposed findings of
fact and conclusions of law for the Court to review, and the
Court can issue same at that time.”
A review of the record reveals that neither the court nor the parties supplied any
findings of fact and conclusions of law specifically related to the court's ruling at the
November 20, 2007 hearing.
In addition to the brief ruling on the record summarized above, the court also issued
the following journal entry on November 20, 2007, filed November 27, 2007:
“Defendant's motion to suppress search warrant based on
search warrant, filed 9-21-2007, is denied. Hearing on
Defendant's motion to proceed as to arrest and search incident
to arrest set for hearing.”
Although the journal entry of the court does not reflect this, the production of alleged
informant, for a Franks hearing, and for the return of seized property [were also denied]
On January 16, 2008, the trial court had a hearing on the balance of Coleman’s motion to
suppress filed September 21, 2007. The court’s entry of January 16, 2008, states:
“DEFENDANT IN COURT. COUNSEL JAMES R. WILLIS PRESENT.
PROSECUTOR(S) STEVEN GALL PRESENT. TRIAL SET FOR
1/28/2008 AT 9:00 A.M. MOTION TO SUPPRESS HEARING HELD
1/16/2008. DEFENDANT'S MOTION TO SUPPRESS THE SEARCH
INCIDENT TO ARREST, FILED 9-21-07 IS DENIED. * * *.”
At the conclusion of the January 16, 2008 hearing, Coleman’s counsel requested findings
of fact and conclusions of law pursuant to Crim.R. 12(F). The trial court instructed the
prosecutor to prepare same. The prosecution submitted findings of fact, which were signed
by the trial court. The following findings of fact were filed on January 22, 2008:

“This matter came on for hearing on the 16th day of January 2008 on

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defendant’s Motion to Suppress. Upon due consideration of the testimony
and evidence submitted, the Court makes the following findings:
That at the time of defendant’s arrest, members of the Cleveland Police were
executing a valid search warrant (State's Exhibit # 1). The Court further
finds that the Search Warrant specifically authorized the officers to make a
search of the subject residence as well as ‘ * * * it’s [sic] curtilage, common
and storage areas, vehicles on the premises and any person present therein.’
(Emphasis added.)
The Court further finds that at the time of his arrest, the defendant was in a
vehicle which had just pulled in the driveway of the subject premises and
had parked the vehicle next to the building located thereon. The Court
further finds that as Lt. Connelly approached the passenger side of
defendant's vehicle, he could see what he recognized to be the outline of a
kilogram of cocaine in what Lt. Connelly thought was defendant's right front
pants pocket. When the defendant was removed from the vehicle the
suspected kilogram of cocaine slid down inside defendant's sweat pants to
his ankle area where it was recovered by police. The recovered cocaine was
submitted for scientific testing and was found to be cocaine with a weight
of 992.6 grams (which is just under a kilogram).
Accordingly, defendant’s Motion to Suppress is denied.”
The trial court, having received a jury waiver from Coleman, proceeded to a bench trial on
January 28, 2008. Coleman was convicted of all counts. The trial court, on that same date,
immediately proceeded to sentencing and imposed a total sentence of eighteen years in
prison as follows: eight years on count one, drug possession involving close to a kilo of
cocaine, and ten years on count two, drug trafficking in cocaine, with the sentences to run
consecutive to each other; six months on count three, possession of cocaine involving less
than ten grams, and twelve months on count four, possessing criminal tools, with the
sentences to run concurrent to each other and concurrent to counts one and two.
The trial court did not rule on the State’s petition for forfeiture of seized contraband filed
on August 16, 2007. A review of the record and the docket entries of the court reveals that
the court did not address the disposition of seized contraband taken from the two premises
or the person of Coleman on May 31, 2007.4/

4/

State v. Coleman, 2009 WL 866896, at *1-*4 (Ohio Ct. App. Apr. 2, 2009) (citations omitted).

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On April 2, 2009, the Eighth District Ohio Court of Appeals affirmed in part and reversed in
part.5/ The Ohio Supreme Court declined jurisdiction to hear the appeal.6/ On October 27, 2009, the
Eighth District Ohio Court of Appeals denied Coleman’s application to reopen his appeal.7/ On
January 27, 2010, the Ohio Supreme Court denied Coleman’s appeal to reopen.8/
Coleman next filed a motion to vacate his sentence, which was denied by the trial court.9/
Coleman then filed a Rule 60(b) motion for relief of judgment that was also denied by the trial
court.10/ Coleman timely appealed the Rule 60(b) decision to the court of appeals.11/ While awaiting
appeal, and due to an intervening change in state law, the state recommended Coleman be
resentenced.12/ The state court of appeals vacated his sentence and remanded for resentencing.13/
On January 24, 2011, Coleman timely filed a petition for a writ of habeas corpus in this
Court.14/ On February 7, 2011, Coleman filed a Motion for Stay and Abeyance, pending a state court
decision on the same matter.15/ This Court dismissed Coleman’s petition without prejudice on March
23, 2011.16/ Having now exhausted his state remedies, this Court reinstated Coleman’s instant

5/

Id. The appeals court reversed in part the trial court’s denial to return certain seized property, not at issue here.

6/

State v. Coleman, 2009-Ohio-5031, 123 Ohio St. 3d 1407, 914 N.E.2d 205 (Ohio 2009).

7/

State v. Coleman, 2009-Ohio-5689, 2009 WL 3478318 (Ohio Ct. App. 2009).

8/

State v. Coleman, 2010-Ohio-188, 124 Ohio St. 3d 1446, 920 N.E.2d 375 (Ohio 2009).

9/

Doc. 20-1 at 951.
10/
Id. at 952.
11/

Id. at 994.

12/

Id. at 1025 (“[T]he State of Ohio would request that this Honorable Court modify the original sentences in
this case . . . .”).
13/

Id. at 1027. The trial court resentenced Coleman to an aggregate of eight years. Id. at 1045.
Doc. 1.

14/
15/

Doc. 4.

16/

Doc. 5.

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petition on August 7, 2012.17/
This Court referred the matter to United States Magistrate Judge Kenneth S. McHargh for a
for a R&R.18/ On May 20, 2014, Magistrate Judge McHargh recommended that Coleman’s petition
for a writ of habeas corpus be denied.19/ Coleman timely appealed to this Court, objecting to all of
relevant portions of the Report and Recommendation.20/
II.

Legal Standard

A. Federal Magistrates Act
The Federal Magistrates Act requires a district court to conduct a de novo review only of
those portions of a Report and Recommendation to which the parties have made an objection.21/
Here, Petitioner Coleman objected to all of Magistrate Judge McHargh’s recommendations, and this
Court therefore reviews de novo the Report and Recommendation in its entirety.
B. The Antiterrorism and Effective Death Penalty Act
The Antiterrorism and Effective Death Penalty Act of 1996, (“AEDPA”), governs a federal
court’s review of a state prisoner’s habeas corpus petition. AEDPA limits federal review to only
those claims in which a petitioner contends that he is in custody in violation of the Constitution, laws,
or treaties of the United States.22/ AEDPA provides that federal courts cannot grant a habeas petition
for any claim that the state court adjudicated on the merits unless the adjudication:

17/

Doc. 7.

18/

Doc. 8.

19/

Doc. 28.
Coleman filed two separate objections. See Doc. 31; Doc. 32.

20/
21/

28 U.S.C. § 636(b)(1).

22/

28 U.S.C. § 2254(a).

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(1) resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established federal law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based upon an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.23/
To justify a grant of habeas relief under the “contrary to” clause, “a federal court must find
a violation of law ‘clearly established’ by holdings of the Supreme Court, as opposed to its dicta, as
of the time of the relevant state court decision.”24/ “Under the ‘unreasonable application’ clause, a
federal habeas court may grant the writ if the state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts
of the prisoner’s case.”25/ The Sixth Circuit holds that, even if a federal court could determine that
a state court incorrectly applied federal law, the court still could not grant relief unless it also finds
that the state court ruling was unreasonable.26/
Where a state court did not adjudicate a federal constitutional claim on the merits, however,
AEDPA deference does not apply.27/ In such cases, a federal court applies the pre-AEDPA standard
of review and reviews questions of law de novo and questions of fact for clear error.28/

III. Analysis
A.

Fourth Amendment

23/

28 U.S.C. § 2254(d). See also Miller v. Francis, 269 F.3d 609, 614 (6th Cir. 2001).

24/

Id. (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

25/

Williams, 529 U.S. at 413.

26/

Simpson v. Jones, 238 F.3d 399, 405 (6th Cir. 2000).

27/

Evans v. Hudson, 575 F.3d 560, 564 (6th Cir. 2009); Brown v. Smith, 551 F.3d 424, 429 (6th Cir. 2008).

28/

Evans, 575 F.3d at 564; Brown, 551 F.3d at 430; Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003).

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As his first ground for relief, Coleman claims that he “did not receive a full and fair
opportunity to litigate his Fourth Amendment [search and seizure] [c]laim before the State Court.”29/
Specifically, Coleman says that the trial court failed to make “essential findings of fact.”30/ Coleman
objects to Magistrate Judge McHargh’s finding that his first ground for relief is not cognizable.31/
In Stone v. Powell, the Supreme Court says “where the State has provided an opportunity for
full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal
habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was
introduced at his trial.”32/
A two-part inquiry resolves whether or not Stone v. Powell precludes federal habeas review
of a Fourth Amendment claim. First, “the district court must determine whether the state procedural
mechanism, in the abstract, presents the opportunity to raise a fourth amendment claim. Second, the
court must determine whether presentation of the claim was in fact frustrated because of a failure of
that mechanism.”33/
Petitioner Coleman says that a state “does not afford a defendant a full and fair opportunity
to litigate the validity of a search under the Fourth Amendment when the state courts fail to make
essential findings of fact.”34/ In support for his argument, he cites to Tukes v. Dugger.35/ In Tukes,

29/

Doc. 1 at 5.
Doc. 1-1 at 7.

30/
31/

Doc. 31.

32/

Stone v. Powell, 428 U.S. 465, 494 (1976) (internal citation omitted).

33/

Riley v. Gray, 674 F.2d 522, 526 (6th Cir.1982)(internal citation omitted).

34/

Doc. 1-1 at 7.

35/

Tukes v. Dugger, 911 F.2d 508 (11th Cir. 1990).

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the Eleventh Circuit ruled that although the state court had given the petitioner “a full and fair
evidentiary hearing” petitioner’s Fourth Amendment claim was not fully considered since the trial
court failed to make “explicit findings on matters essential to the fourth amendment issue” and only
issued a summary affirmance.36/
However, Coleman’s reliance on Tukes fails for two reasons. First, Tukes is an Eleventh
Circuit decision–one not binding on the Court. Second, the Sixth Circuit in Good v. Berghuis
rejected the higher level of scrutiny required by Tukes and other courts.37/ Rather, the Sixth Circuit
joined the majority of circuits in recognizing that Stone v. Powell only requires an inquiry into the
available process for a prisoner to adjudicate his claims–not a separate inquiry into the adequacy of
the process used in a petitioner’s state criminal case.38/ Federal courts should only ask: “Did the state
courts permit the defendant to raise the claim or not?”39/
Here, Coleman had the opportunity to raise his Fourth Amendment claim. Coleman filed a
motion to suppress and to return seized property.40/ The trial court convened a hearing to consider
Coleman’s motion and the state trial court then overruled it.41/ Coleman also filed a motion for
production of the alleged informant and a motion for a Franks hearing.42/ Although the state trial
court’s journal entry does not reflect this, the court at the November 20, 2007 hearing impliedly

36/

Id.
See Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013).

37/
38/

Id. at 639.

39/

Id. at 640.
Doc 20-1 at 407.

40/
41/

Id. at 484-486.

42/

Id. at 474-476.

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denied the motions for production of alleged informant, for a Franks hearing, and for the return of
seized property. Further, Coleman raised this issue on appeal to the Eighth District Ohio Court of
Appeals. The court of appeals affirmed the trial court.43/
Thus, the Court concludes that the state courts provided Coleman an available process for
raising his claim, satisfying Stone’s “full and fair” opportunity to litigate.44/
B.

Ineffective Assistance of Counsel
As his second and third grounds for relief, Coleman alleges that his counsel, James Willis,

provided ineffective assistance of counsel by failing to properly argue Coleman’s Fourth Amendment
violation claim and the denial of confidential informant identity claim. Specifically, Coleman says
his state appellate counsel should have argued that the failure to disclose the confidential informant’s
identity violated his rights under the Confrontation Clause of the United States Constitution.45/
Coleman objects to Magistrate Judge McHargh’s finding that these claims lose.46/
In order to establish ineffective assistance of counsel, a movant must satisfy the two-pronged

43/

Coleman, 2009 WL 866896, at *15.

44/

Petitioner Coleman also seems in his objections to the R&R to raise a due process claim. He says “The
petitioner does object to the magistrate’s “R&R” and relies on the case cited in petitioner’s motion to vacate and
Constitution of the United State under the Fourteenth and Fifth Constitutional Amendment, mandating a protected right
to adequate due process of law, as the prevailing standards.” Doc. 31. If this is the case, the Court notes that a petitioner
may not amend his petition in an objection to a R&R. Schilling v. Brunsman, 2:07-CV-302, 2007 WL 2142983 (S.D.
Ohio July 25, 2007). Even if the Court were to consider it, Coleman cannot show that the state court's procedure for
litigating his claim violated his due process rights. Coleman presented evidence before the trial court, received a ruling,
and had that determination reviewed by an appellate court.
45/

Doc. 1. Coleman withdrew his fourth ground for relief, that Willis failed to raise the allied offense argument
during sentencing. Doc. 6 at 1.
46/

Doc. 31. Coleman says the magistrate failed to examine “the prevailing standards of prejudice under the U.S.
Supreme Court Crawford holding.”

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test established in Strickland v. Washington.47/ First, he must show that his attorney’s performance
was so deficient that the attorney “was not functioning as the ‘counsel’ guaranteed . . . by the Sixth
Amendment.”48/ Judicial scrutiny of counsel’s conduct performance is highly deferential, and courts
employ a “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.”49/ Second, the movant must show that the deficient performance prejudiced
the defense so seriously that it deprived him of a fair trial.50/ The movant meets the second prong of
the test only by showing “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”51/
However, on habeas review of an AEDPA claim, this Court “can only consider [Petitioner’s]
challenge within the more limited assessment of whether the state court’s application of Strickland
to the facts of this case was objectively unreasonable.”52/
The pivotal question is whether the state court’s application of the Strickland standard
was unreasonable. This is different from asking whether defense counsel's performance
fell below Strickland's standard. Were that the inquiry, the analysis would be no
different than if, for example, this Court were adjudicating a Strickland claim on direct
review of a criminal conviction in a United States district court. Under AEDPA,
though, it is a necessary premise that the two questions are different. For purposes of
§ 2254(d)(1), an unreasonable application of federal law is different from an incorrect
application of federal law. A state court must be granted a deference and latitude that
are not in operation when the case involves review under the Strickland standard

47/

Strickland v. Washington, 466 U.S. 668 (1984).

48/

Id. at 687.

49/

Id. at 689.
Id. at 687.

50/
51/

Id. at 694.

52/

Washington v. Hofbauer, 228 F.3d 689, 702 (6th Cir. 2000).

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itself.53/
The Eighth District Court of Appeals reviewed Coleman’s ineffective assistance of appellate
counsel.54/ It held:
Coleman, through his third and fourth proposed assignments of error, argues that he
was prejudiced by the failure of trial counsel to obtain the name of the confidential
informant and to call the confidential informant as a witness. Coleman has not
demonstrated any prejudice that resulted from the non-disclosure of the confidential
informant’s name. In addition, Coleman has failed to demonstrate that he was
prejudiced by the inability to “confront” the confidential informant during the course
of trial. Coleman has once again failed to demonstrate ineffective assistance of
appellate counsel.55/
A review of the Eighth District Ohio Court of Appeals decision reveals the state court properly
applied the two-pronged Strickland standard to Coleman’s claim of ineffective assistance of counsel.
The appeals court found that Coleman failed to claim sufficient prejudice stemming from Willis’
failure to argue for the identification of a confidential informant.56/
Further the Court notes that Petitioner Coleman’s rights under Crawford v. Washington were
not violated by his inability to confront the confidential informant during the course of the trial.57/
Crawford prohibits the introduction into evidence testimonial hearsay by an out of court
witness unless the witness is unavailable and the defendant had a prior opportunity to cross-examine
the witness.58/ Here the confidential informant’s information was not introduced into evidence at trial.

53/

Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (citations omitted).

54/

State v. Coleman, 2009-Ohio-5689, 2009 WL 3478318 (Ohio Ct. App. 2009).

55/

Id. at *3.
56/
Id.
57/

Crawford v. Washington, 541, U.S. 36 (2004).

58/

Id.

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Thus, the Confrontation Clause was not violated.59/
For these reasons, Coleman’s ineffective assistance of counsel claim fails.
IV. Conclusion
For the foregoing reasons, this Court ADOPTS the R&R and DENIES the Defendant’s
motion to vacate his sentence under 28 U.S.C. § 2254. The Court additionally certifies, pursuant to
28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that
there is no basis upon which to issue a certificate of appealability.60/
IT IS SO ORDERED.

Dated: July 21, 2014

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

59/

See Welsh v. Prelesnik, 07-10567, 2009 WL 4506431 (E.D. Mich. Nov. 25, 2009).

60/

See 28 U.S.C. § 2253(c).

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