Johnson v. Turner

Filing 21

Memorandum of Opinion and Order For the reasons set forth herein, the Court denies Petitioner's petition and adopts the Magistrate Judge's Report and Recommendation. ECF No. 18 . Furthermore, the Court 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. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Judge Benita Y. Pearson on 6/30/2015. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
LARRY JOHNSON,

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Petitioner,
v.
NEIL TURNER,
Respondent.

CASE NO. 1:13CV01173

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 20]

Pending before the Court is Petitioner Larry Johnson’s Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Respondent filed a Return of Writ. ECF No.
5. United States Magistrate Judge Kathleen B. Burke prepared a report in accordance with 28
U.S.C. § 636(b)(1)(B) and recommended the petition be dismissed. ECF No. 18. Petitioner filed
an objection to the magistrate judge’s report and its recommendations. ECF No. 20. The Court
has reviewed the above filings, the relevant portions of the record, and the governing law. For
the reasons provided below, the Court overrules Petitioner’s objection and adopts the report and
recommendations of the magistrate judge.
I. Factual and Procedural History
The Report and Recommendation (“R&R”) recites the relevant factual and procedural
history from the record, and the Court adopts that portion of the R&R in its entirety. ECF No.
18, PageID #: 587-91.

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As a brief background, on November 16, 2010, Cleveland police officers responded to a
dispatch call reporting shots fired at a residence. After the police arrival, dispatch broadcasted
that the caller had just reported that there was a dead body and drugs at the residence. The police
officers forcibly entered the residence and saw no dead body or injured person. Petitioner was
inside the residence with two other males. Because of a strong odor of marijuana, the police
officers asked Petitioner if they could search the residence. Petitioner agreed verbally and in
writing. The search revealed marijuana, crack cocaine, powder cocaine, drug manufacturing
paraphernalia, and a gun in the house. ECF No. 18, PageID#: 586 (quoting the summary
provided by the Eight District Ohio Court of Appeals in State v. Johnson, 2012 WL 1067885, *1
(Ohio App. Ct. Mar. 29, 2012); see also ECF No. 5-2, PageID#: 155-56, ¶¶ 2-4.
A grand jury indicted Petitioner on various state law charges. Petitioner filed a motion to
suppress any evidence obtained from the search of his residence. He argued that the police
officers lacked probable cause and exigent circumstances for the search. The State opposed.
After conducting a suppression hearing, the trial court denied Petitioner’s motion, finding that
the entry into Petitioner’s residence occurred under exigent circumstances. Subsequently,
Petitioner entered a plea of no contest and was sentenced to a total of 13 years. ECF No. 18,
PageID#: 587-88.
The Court of Appeal for the Eight Appellate District affirmed the trial court’s denial of
the motion to suppress, stating that “the court’s determination that exigent circumstances existed
and defendant consented to the search is supported by competent and credible evidence.” ECF
No. 5-2, PageID #: 163. On July 5, 2012, the Supreme Court of Ohio declined jurisdiction to

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hear the case and dismissed the appeal as not involving any substantial constitutional question.
Petitioner filed for a writ of certiorari in the Supreme Court of the United States. It was denied.
Petitioner subsequently filed a petition for rehearing for a writ of certiorari, which was also
denied. Petitioner filed the instant habeas petition on May 24, 2013. ECF No. 18, PageID#: 58891. Petitioner objects only to the magistrate judge’s determination regarding his Fourth
Amendment claim, the first ground for relief in his habeas petition.
II. Standard of Review for a Magistrate Judge’s Report and Recommendation
When objections have been made to a magistrate judge’s Report and Recommendation,
the district court’s standard of review is de novo. Fed. R. Civ. 72(b)(3). A district judge:
must determine de novo any part of the 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.
Id. Near verbatim regurgitation of the arguments made in earlier filings are not true objections.
When an “objection” merely states disagreement with the magistrate judge’s suggested
resolution, it is not an objection for the purposes of this review. Cvijetinovic v. Eberlin, 617
F.Supp. 2d 620, 632 (N.D. Ohio 2008), rev’d on other grounds, 617 F.3d 833 (6th Cir. 2010).
Such “general objections” do not serve the purposes of Fed. R. Civ. P. 72(b). See Jones v.
Moore, No. 3:04CV7584, 2006 WL 903199, at *7 (N.D. Ohio April 7, 2006). “A party who files
objections to a magistrate [judge]’s report in order to preserve the right to appeal must be
mindful of the purpose of such objections: to provide the district court ‘with the opportunity to
consider the specific contentions of the parties and to correct any errors immediately.’” Id.

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(citing U.S. v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981)). The Supreme Court upheld this
rule in Thomas v. Arn, 474 U.S. 140, 144 (1985), a habeas corpus case.
III. Standard of Review for Habeas Petitions
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which amended
28 U.S.C. § 2254, was signed into law on April 24, 1996 and applies to habeas corpus petitions
filed after that effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997); see also Woodford v.
Garceau, 538 U.S. 202, 210 (2003); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999).
AEDPA was enacted “to reduce delays in the execution of state and federal criminal sentences,
and ‘to further the principles of comity, finality, and federalism.’” Woodford, 538 U.S. at 206
(citing Williams v. Taylor, 529 U.S. 420, 436 (2000)). Consistent with this goal, when reviewing
an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a
state court, a determination of a factual issue made by a state court shall be presumed to be
correct. Wilkins v. Timmerman-Cooper, 512 F.3d 768, 774–76 (6th Cir. 2008). The petitioner
has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28
U.S.C. § 2254(e)(1); Wilkins, 512 F.3d at 774. A federal court may not grant habeas relief on
any claim that was adjudicated on the merits in any state court unless the adjudication of the
claim either (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 on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d); Wilkins,
512 F.3d at 774–76.

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A decision is contrary to clearly established law under 28 U.S.C. § 2254(d)(1) when it is
“diametrically different, opposite in character or nature, or mutually opposed” to federal law as
determined by the Supreme Court of the United States. Williams v. Taylor, 529 U.S. 362, 405
(2000). In order to have an “unreasonable application of . . . clearly established Federal law,” the
state-court decision must be “objectively unreasonable,” not merely erroneous or incorrect. Id. at
409. Furthermore, it must be contrary to holdings of the Supreme Court, rather than dicta. Id. at
415.
A state court’s determination of fact will be unreasonable under 28 U.S.C. § 2254(d)(2)
only if it represents a “clear factual error.” Wiggins v. Smith, 539 U.S. 510, 528–29 (2003). In
other words, a state court’s determination of facts is unreasonable if its finding conflict with clear
and convincing evidence to the contrary. Id. “This standard requires the federal courts to give
considerable deference to state-court decisions.” Ferensic v. Birkett, 501 F.3d 469, 472 (6th Cir.
2007). AEDPA essentially requires federal courts to leave a state court judgment alone unless
the judgment in place is “based on an error grave enough to be called ‘unreasonable.’” Herbert v.
Billy, 160 F.3d 1131, 1135 (6th Cir.1998).
IV. Procedural Barriers to Habeas Review
Before a federal court will review the merits of a petition for a writ of habeas corpus, a
petitioner must overcome several procedural hurdles. Specifically, the petitioner must surmount
the barriers of exhaustion, procedural default, and time limitation.
As a general rule, a state prisoner must exhaust all possible state remedies or have no
remaining state remedies before a federal court will review a petition for a writ of habeas corpus.

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28 U.S.C. § 2254(b); see Baldwin v. Reese, 541 U.S. 27 (2004). A petitioner satisfies the
exhaustion requirement when he presents his claims to a state supreme court for review of his
claims on the merits. O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Rust v. Zent, 17 F.3d 155,
160 (6th Cir. 1994); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).
A claim is properly exhausted, when it has been “fairly presented” to the state courts. See
Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Frazier v. Huffman, 343 F.3d 780, 797 (6th
Cir. 2003). Fair presentation requires that the state courts be given the opportunity to see both
the factual and legal basis for each claim. Wagner, 581 F.3d at 414. In determining whether a
petitioner “fairly presented” a federal constitutional claim to the state courts, courts should
consider whether the petitioner (1) phrased the federal claim in terms of the pertinent
constitutional law or in terms sufficiently particular to allege a denial of the specific
constitutional right in question, (2) relied upon federal cases employing the constitutional
analysis in question, (3) relied upon state cases employing the federal constitutional analysis in
question, or (4) alleged “facts well within the mainstream of [the pertinent] constitutional law.”
See Hicks v. Straub, 377 F.3d 538, 553 (6th Cir. 2004) (quoting McMeans v. Brigano, 228 F.3d
674, 681 (6th Cir. 2000)). For the claim to be exhausted, it must be presented to the state courts
as a federal constitutional issue, not merely as an issue arising under state law. Koontz v. Glossa,
731 F.2d 365, 369 (6th Cir. 1984). Moreover, the claim must be presented to the state courts
under the same legal theory in which it is later presented in federal court. Wong v. Money, 142
F.3d 313, 322 (6th Cir. 1998). It cannot rest on a legal theory which is separate and distinct from
the one previously considered and rejected in state court. Id. This does not mean that the

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petitioner must recite “chapter and verse” of constitutional law, but he is required to make a
specific showing of the alleged claim. Wagner, 581 F.3d at 415.
The procedural default doctrine serves to bar review of federal claims that a state court
has declined to address because the petitioner did not comply with a state procedural
requirement. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). In these cases, the state judgment is
not based on a resolution of federal constitutional law, but instead “rests on independent and
adequate state procedural grounds.” Coleman v. Thompson, 501 U.S. 722, 730 (1991). When
the last explained state court decision rests upon procedural default as an “alternative ground,” a
federal district court is not required to reach the merits of a habeas petition. McBee v.
Abramajtys, 929 F.2d 264, 267 (6th Cir.1991). In determining whether a state court has
addressed the merits of a petitioner’s claim, federal courts must rely upon the presumption that
there is no independent and adequate state procedural grounds for a state court decision absent a
clear statement to the contrary. See Coleman, 501 U.S. at 735.
To determine if a claim is procedurally defaulted, a court must determine whether: (1)
there is a state procedural rule that is applicable to the petitioner’s claim and that the petitioner
failed to comply with the rule, (2) whether the state courts actually enforced the state procedural
sanction, and (3) whether the state procedural forfeiture is an adequate and independent state
ground upon which the state can rely to foreclose review of a federal constitutional claim. See
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). A claim that is procedurally defaulted in
state court will not be reviewed by a federal habeas court unless a petitioner can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of federal law, or can

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demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 751. If a petitioner fails to show cause for his procedural default, the court
need not address the issue of prejudice. See Smith v. Murray, 477 U.S. 527 (1986).
A federal court may review only federal claims that were evaluated on the merits by a
state court. Claims that were not so evaluated, either because they had not been exhausted or
because they are procedurally defaulted are not cognizable on federal habeas review.
V. Discussion
The Court reviews de novo Petitioner’s objection to the magistrate judge’s
recommendation regarding his alleged Fourth Amendment violation. The petition states:
Standing alone an anonymous tip provided [to] the police that identifies an
individual and his residence, and which accuses him by name of firing shots from
his residence with an AK-47, and claims that a body was inside, was insufficient
to justify a warrantless entry and search under the “exigent circumstances
doctrine.”
ECF No. 1, PageID #: 5. Petitioner argues the evidence obtained from his residence on
November 16, 2010 was the result of an unconstitutional search and seizure. Respondent argues
Petitioner was afforded an opportunity to fully and fairly litigate his Fourth Amendment claims
and, therefore, habeas review is foreclosed under Stone v. Powell, 428 U.S. 465, 494 (1976).
Generally, a writ of habeas corpus cannot be granted on the ground that a petitioner’s
Fourth Amendment rights were violated if the petitioner had an opportunity to present the claim
in state court. See id. at 482. The Sixth Circuit has held that determining whether a petitioner
has had “an opportunity for full and fair litigation of a Fourth Amendment claim” demands a
two-step inquiry by the district court. Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982). First, the

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district court “must determine whether the state procedural mechanism, in the abstract, presents
the opportunity to raise a fourth amendment claim.” Id. at 526. Second, the court “must
determine whether presentation of the claim was in fact frustrated because of a failure of that
mechanism.” Id. As the magistrate judge points out, the Sixth Circuit more recently stated that
“the Powell ‘opportunity for full and fair consideration’ means an available avenue for the
prisoner to present his claim to the state courts, not an inquiry into the adequacy of the procedure
actually used to resolve that particular claim.” Enyart v. Coleman, 29 F.Supp.3d 1059, 1087
(N.D. Ohio Jul. 11, 2014) (discussing and quoting Good v. Berghuis, 729 F.3d 636, 639 (6th Cir.
2013)).
In the instant matter, Ohio Criminal Rule of Procedure 12(C)(3) allows defendants to file
motions to suppress evidence prior to a trial, fulfilling the first step of the Riley inquiry. As the
magistrate judge detailed, the trial court allowed Petitioner to litigate his Fourth Amendment
claim in his pretrial motion under Ohio R.Crim.P. 12(C)(3), the subsequent suppression hearing,
and in his direct appeal. The record lacks any indicia that Petitioner’s Fourth Amendment claim
was frustrated by a failure of Ohio’s procedural mechanism, fulfilling the second step of the Riley
inquiry. See, e.g., Pierce v. Bunting, Case No, 1:12CV02561, 2014 WL 5517256, *7 (N.D. Ohio
Oct. 31, 2014). Petitioner was able to appeal the trial court’s denial of his motion to the Eighth
District Court of Appeals and to the Supreme Court of Ohio. Petitioner subsequently filed a writ
of certiorari and a rehearing on the denial of the writ. Although Petitioner never received a ruling
in his favor, he was afforded multiple opportunities to litigate his claim.

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Petitioner argues that the state court ruling was unfair and egregious. He contends that an
unreported Sixth Circuit case, Abdul-Mateen v. Hofbauer, 215 F.3d 1325 (6th Cir. 2000) (table),
created an exception to the procedural bar created by Powell if the state court committed
“egregious error” in applying Fourth Amendment principles. In Abdul-Mateen, however, the
Sixth Circuit denied the petitioner's Fourth Amendment claim and stated that any egregious error
exception “is not meant to be a case by case review of state court determinations.” Id. at 3; see
also Riley, 674 F.2d at 526 (“We believe that a limited inquiry into the correctness of state court
decisions, occurring as a matter of course in the district courts, would be inconsistent with
Stone”) (citing Stone, 428 U.S. at 493 n. 35).
Petitioner also cites to a case from the Southern District of West Virginia that held that
the “full and fair litigation” analysis in Stone did not serve as a bar to a merits review under
AEDPA. Carlson v. Ferguson, 9 F.Supp.2d 654 (S.D. W.V. Mar. 16, 1988). Petitioner claims
the AEDPA trumps the holding of Stone. Not only is Carlson1 from a different circuit and not
binding, federal courts in Ohio and other circuit courts have disagreed with the West Virginia
court's analysis and continue to apply Stone as good law. See Shepherd v. Warden, Pickaway
Correctional Inst., 2011 WL 3664442, *6 (S.D. Ohio May 31, 2011), report and
recommendation adopted, (rejecting petitioner’s claim that Congress overrode Stone in enacting
the AEDPA amendments); see also Blevins v. Rogers, 2010 WL 649097, *2 (N.D. Ohio Feb. 19,
2010) (“The holdings of Stone and Riley are still valid under the revised habeas standards of

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The West Virginia District Court nonetheless denied petitioner’s Fourth
Amendment claim on the merits. Carlson, 9 F.Supp.2d at 655-56.
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AEDPA”); Ewell v. Scribner, 2011 WL 386954, *28-29 (E.D. Ca. Feb. 3, 2011), affirmed, 490 F.
App’x 891 (9th Cir. 2012) (detailing the cases that continue to apply Stone after the enactment of
AEDPA and rejecting Carlson as a basis for finding that Stone was no longer applicable after the
enactment of AEDPA).
The foregoing belies any argument asserting that Petitioner did not have an opportunity to
fully and fairly litigate his Fourth Amendment claim. Review of Petitioner’s claim is foreclosed
by Stone.
VI. Conclusion
For the reasons above, the Court denies Petitioner’s petition and adopts the magistrate
judge’s Report and Recommendation. ECF No. 18. Furthermore, the Court 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. 28 U.S.C. § 2253(c); Fed.
R. App. P. 22(b).
IT IS SO ORDERED.

June 30, 2015
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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