Segines v. Tibbles
Filing
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Memorandum Opinion and Order: Accordingly, the Court accepts the Report and Recommendation of Magistrate Judge White. For the reasons stated above, as well as those stated in the Report and Recommendation of the Magistrate Judge, the pending Petition for a Writ of Habeas Corpus is denied. Petitioner's request for a certificate of appealability is also denied. A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner has not made a substantial showing of the denial of a constitutional right. Judge Patricia A. Gaughan on 11/8/12. (LC,S) re 15
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICHARD SEGINES,
Petitioner,
vs.
TERRY TIBBALS, Warden,
Respondent.
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CASE NO. 1: 11 CV 2400
JUDGE PATRICIA A. GAUGHAN
Memorandum of Opinion and Order
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge White (Doc. 15) recommending that the Court deny petitioner’s pending Petition for a
Writ of Habeas Corpus. Petitioner has filed objections to the Report and Recommendation.
For the reasons stated below, the Court accepts the Report and Recommendation and
dismisses the petition.
Standard of Review
Pursuant to Fed. R. Civ. P. 72(b), the district court reviews de novo “any part of [a]
magistrate judge’s disposition that has been properly objected to.” “The district judge may
accept, reject, or modify the recommended disposition; receive further evidence or return the
matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(3). “When no timely
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objection is filed, the court need only satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s
notes (citation omitted).
Background
The background facts are fully set forth by the Magistrate Judge in his Report and
Recommendation. In October 2006, petitioner and co-defendants Harry Briscoe and Sharon
Dockery were indicted on two counts of aggravated murder and two counts of aggravated
robbery in connection with an attack upon Ali Th Abu Atiq. The evidence at trial showed
that petitioner and Briscoe had an altercation with the victim and one of them shot and killed
him. The charges against defendant included one and three year firearm specifications, felony
murder specifications, repeat violent offender specifications, and a notice of a prior
conviction. The felony murder charges were later dismissed by the state.
Trial commenced on May 7, 2007. Three days into the trial, defense counsel filed a
motion for a separate trial, which was denied as untimely. On May 15, 2007, a jury found
defendant not guilty of aggravated murder as charged in count two of the indictment but
guilty of the lesser offense of murder, both counts of aggravated robbery, and the one-year
and three-year firearm specifications. The trial court sentenced defendant to a term of
imprisonment of fifteen years to life, plus three years for the weapon on the murder charge
and a consecutive terms of ten years for the aggravated robbery convictions for a total of
twenty-eight years to life in prison.
Petitioner filed a notice of appeal with the Ohio Court of Appeals, raising seven
assignments of error: (1) there was insufficient evidence to convict petitioner; (2) petitioner’s
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conviction was against the manifest weight of evidence; (3) the trial court erred in denying
defense counsel’s motion to suppress identification testimony and photo arrays; (4) the trial
court abused its discretion in denying petitioner’s motion to separate trials and/or relief from
joinder; (5) the trial court abused its discretion in denying petitioner’s motions for mistrial;
(6) the trial court abused its discretion in failing to provide a lesser included offense charge
and in deleting portions of the agreed upon jury instructions; and (7) petitioner was denied
effective assistance of counsel.
The Ohio Court of Appeals rejected petitioner’s assignments of error and affirmed
petitioner’s convictions. State v. Segines, No 89915, 2008 WL 1903997 (Ohio Ct. App. May
1, 2008). Following a motion for reconsideration, which was denied, petitioner filed a notice
of appeal with the Ohio Supreme Court, which dismissed petitioner’s appeal as not involving
any substantial constitutional question. On August 8, 2008, petitioner filed an application to
reopen his appeal with the Ohio Court of Appeals on the basis that he was denied effective
assistance of counsel and due process. The court of appeals granted petitioner’s application
to reopen. Thereafter, petitioner raised one assignment of error: “Trial counsel’s failure to
object to indictment error pursuant to State v. Colon, 118 Ohio St.3d 26, 2008 Ohio 1624,
deprived the appellant [of] his right to effective assistance of counsel.” On October 21, 2010,
the Ohio Court of Appeals rejected this claim and affirmed petitioner’s convictions. The
court of appeals held that the basis for the reopening of petitioner’s appeal – that the
indictment failed to include a mens rea element as required in Colon – was no longer viable
under Ohio law. No appeal was taken to the Ohio Supreme Court.
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Discussion
Petitioner’s pending pro se petition for a writ of habeas corpus asserts the following
four grounds for relief:
Ground one: Petitioner’s Ohio Constitutional right under Article 1 section 10,
and U.S. Constitution of the Sixth Amendment was violated with respect to
being properly informed of the nature and cause of the accusations.
Ground two: Petitioner’s Constitutional Right to due process under the 14th
Amendment of the U.S. Constitution was violated as his conviction is based
upon insufficient evidence.
Ground three: The conviction of Petitioner was against the manifest weight of
evidence. Vi[ol]ating Petitioner’s Constitutional right to a fair trial and due
process.
Ground four: Petitioner’s Constitutional right to due process and fair trial in
accords with the U.S. Constitution and the Ohio Constitution was violated
when the trial court tried Petitioner and Co-Defendant together. Further
causing trial Counsel to be ineffective.
(Doc. No. 1.)
The Magistrate Judge found none of petitioner’s asserted grounds sufficient to support
the writ. The Magistrate Judge found that ground one – claiming that the indictment failed to
properly inform petitioner of the nature and cause of the accusations – was procedurally
defaulted because, although the claim was addressed when petitioner’s appeal was reopened
in the state appellate court, petitioner did not appeal the state appellate court’s determination
to the Ohio Supreme Court. In addition, the Magistrate Judge found ground one insufficient
on the merits. The Magistrate Judge reasoned that petitioner’s claim was that the indictment
failed to include the mens rea element of the offense charged, but clearly established federal
law as determined by the U.S. Supreme Court does not require charging documents in state
criminal proceedings to explicitly set forth the mens rea element. The Magistrate Judge
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found that the indictment did not violate the federal Constitution because the indictment
afforded petitioner fair notice of the charges against him and clearly apprised him of the fact
that he was being charged with aggravated robbery.
The Magistrate Judge found petitioner’s ground three, that his conviction was against
the manifest weight of evidence, to lack merit because “manifest weight claims” are not
cognizable on federal habeas review.
The Magistrate Judge rejected petitioner’s claim in ground two that there was
insufficient evidence to support his convictions. The Magistrate Judge found that the state
appellate court reasonably determined that petitioner’s convictions were supported by
sufficient evidence. Further, the Magistrate Judge found the evidence sufficient to support
petitioner’s convictions pursuant to the Magistrate Judge’s own independent review.
The Magistrate Judge construed petitioner’s claim in ground four to be that petitioner
was deprived of the effective assistance of counsel when the trial court denied
his motion to be tried separate from Boscoe, his co-defendant. [Petitioner]
avers that defense counsel, by his own admission, was not prepared to proceed
with a joint trial, resulting in ineffective assistance. Furthermore, his trial
counsel’s failure to seek severance in a timely manner resulted in an unfair
trial. [Petitioner] also appears to be arguing that the trial court violated his
right to a fair trial by denying the motion for a separate trial.
(R&R at 24.) The state appellate court held that the trial court did not abuse its discretion in
denying petitioner’s motion for a separate trial and rejected petitioner’s claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). The state
appellate court held:
In so far as we have determined that the evidence of Briscoe’s conduct would
be admissible even if the counts were severed, the evidence of each crime was
simple and distinct and the matters were properly tried together, we find no
error as to severance. Absent an error, the claim of ineffective assistance must
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fail.
State v. Segines, No 89915, 2008 WL 1903997, at * 9.
The Magistrate Judge rejected petitioner’s claim of ineffective of assistance of counsel
on habeas review. The Magistrate Judge found that “the state court’s finding that counsel
satisfied the Strickland standard is not unreasonable.” (R&R at 27.) In addition, the
Magistrate Judge stated that in order to demonstrate ineffective assistance of counsel, the
petitioner must demonstrate actual prejudice, not merely the potential for prejudice. The
Magistrate Judge found that petitioner’s arguments that a joinder prevented him from having
a fair trial and that his counsel was thus ineffective lacked merit “as [petitioner] failed to
identify any specific right infringed by the joint trial or any actual prejudice.” (R&R at 28.)
Petitioner objects to the Report and Recommendation, disagreeing with the Magistrate
Judge’s conclusions on his claims. Petitioner, however, has not demonstrated that the
Magistrate Judge’s analysis of his claims is incorrect, or that he is entitled to a writ of habeas
corpus under governing law. Upon review, the Court finds that the Magistrate Judge properly
considered petitioner’s claims and correctly found petitioner’s asserted claims insufficient to
support a writ of habeas corpus.
Conclusion
Accordingly, the Court accepts the Report and Recommendation of Magistrate Judge
White. For the reasons stated above, as well as those stated in the Report and
Recommendation of the Magistrate Judge, the pending Petition for a Writ of Habeas Corpus
is denied. Petitioner’s request for a certificate of appealability is also denied. A certificate of
appealability may issue “only if the applicant has made a substantial showing of the denial of
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a constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner has not made a substantial showing
of the denial of a constitutional right.
IT IS SO ORDERED.
/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 11/8/12
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