Carman v. Miller
Order: The Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is denied and this action is dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Further, the Court CERTIFIES pursuant to 28 U.S.C. 7;1915(a)(3) that an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253; Fed.R.App.P. 22(b). Petitioner's Motion for Discovery (Doc. No . [4)], Motion for Expedited Hearing (Doc. No. 5 ), Motion for Evidentiary Hearing (Doc. No. 6 ), Motion for Release on Recognizance (Doc. No. 7 ), Motion for Appointment of Counsel (Doc. No. 8 ) and Motion for Default Judgment (Doc. No. 10 ) are denied as moot. Judge James G. Carr on 3/16/15. (C,D)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
Ronald G. Carman
Case No. 1:14 CV 2060
JUDGE JAMES G. CARR
State of Ohio,
Pro se Petitioner Ronald G. Carman filed the above-captioned Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. He is incarcerated in the Belmont Correctional Institution,
having pled guilty in the Cuyahoga County Court of Common Pleas to amended charges of
abduction and gross sexual imposition. In his Petition, he claims: (1) the trial court erred in
sentencing him to consecutive sentences; and (2) the trial court erred in failing to merge allied
offenses for purposes of sentencing. He asks this Court to grant his Petition and order the state court
to conduct a new sentencing hearing to impose concurrent sentences.
Petitioner also filed a Motion to Proceed In Forma Pauperis. (Doc. No. 2). That Motion
The female victim in this case was hitch-hiking from West 25th Street and Detroit Avenue
in Cleveland to her home on Lake Avenue at approximately 2:30 a.m. on May 31, 1999. She
accepted a ride from a Caucasian male who appeared to be forty years old. The male drove her a
few blocks and stopped the car at an unknown location in Cleveland, Ohio. He then locked the car
doors, tore off her clothing, beat her, raped her, and began strangling her. She resisted and, in the
struggle, cracked the windshield of the car with her boots. At that point, the male threw her out of
the automobile, and she ran down the street. She was able to flag down a yellow cab, which took
her home. She later was brought to Lakewood Hospital by ambulance where a rape kit was
performed, and a sample of the suspect’s DNA was collected.
In March 2012, the state got a match on the Combined DNA Index System (“CODIS”)
linking a DNA sample collected from Petitioner to the DNA sample collected from the 1999 rape
kit. Petitioner was charged in November 2012 with two counts of kidnaping with sexual motivation
specifications and sexually violent predator specifications, one count of rape with a sexually violent
predator specification and repeat violent offender specification, and one count of felonious assault
with sexual motivation, sexually violent predator, and repeat violent offender specifications. Each
of the charges contained a notice of prior conviction.
Petitioner entered into a plea agreement on January 17, 2013 in which he pled guilty to
amended charges of abduction and gross sexual imposition. The remaining charges and all
specifications were dismissed. At the plea colloquy, the court asked the prosecutor and Petitioner’s
defense attorney for their positions on allied offenses. Defense counsel agreed that the offenses
were not allied but did not concede consecutive sentences were necessary. Nevertheless, the court
sentenced Petitioner to thirty months incarceration on the abduction charge and forty-two months
on the charge of gross sexual imposition. The sentences were ordered to be served consecutively.
Petitioner filed a timely direct appeal of his conviction to the Ohio Eighth District Court of
Appeals. He asserted two assignments of error:
1. The court erred in sentencing [Petitioner] to consecutive
2. The court erred in failing to merge allied offenses for purposes of
State v. Carman, No. 99463, 2013 WL 5970257 (Ohio App. 8 Dist. Nov. 7, 2013). The Court of
Appeals determined the trial court satisfied the requirements of Ohio Revised Code §2929.14(C)(4)
to impose consecutive sentences. With respect to his second ground for relief, the Court determined
that Petitioner’s counsel waived the claim of allied offenses by conceding that the offenses were not
allied. His conviction was affirmed on November 7, 2013.
Petitioner did not immediately file an appeal to the Ohio Supreme Court. Instead he filed
a Motion for Delayed Appeal on April 14, 2014. The court denied his Motion on May 28, 2014.
II. Habeas Petition
Petitioner then filed this Petition for a Writ of Habeas Corpus on September 16, 2014. He
asserts two grounds for relief:
1. Petitioner had been indicted for a charge of kidnaping and rape on
November 2, 2012 from a complaint filed on May 31, 1999 on an
unknown assailant. Said offenses in the indictment are allied
offenses of similar import. The court erred in sentencing petitioner
to consecutive sentences.
2. Petitioner pleaded guilty to lesser included offenses which are
allied offenses of similar import. The state informed the court they
are not allied in nature, where petitioner’s trial counsel agreed. The
court erred in failing to merge allied offenses for purposes of
(Doc. No. 1 at 6, 7). He asks this Court to grant the Writ and order the state court to conduct a new
sentencing hearing in which concurrent sentences are imposed.
III. Standard of Review
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 Woodford v. Garceau, 538
U.S. 202, 210 (2003); Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999). The 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. 362, 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).
A federal court, therefore, 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 768, 774 -76 (6th Cir. 2008).
A decision is contrary to clearly established law under §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, as opposed to dicta. Id. at 415.
A state court’s determination of fact will be unreasonable under §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).
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.
28 U.S.C. § 2254(b) and (c); see Baldwin v. Reese, 541 U.S. 27 (2004). Exhaustion is fulfilled once
a state supreme court provides a convicted defendant a full and fair opportunity to review his or her
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).
To be properly exhausted, each claim must have been “fairly presented” to the state courts.
See e.g. 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. Specifically, 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 applicant must recite
“chapter and verse” of constitutional law, but the applicant is required to make a specific showing
of the alleged claim. Wagner, 581 F.3d at 414.
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, 265
(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 the 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 demonstrate that failure to
consider the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 751.
“Cause” is a legitimate excuse for the default, and “prejudice” is actual harm resulting from the
alleged constitutional violation. See Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). 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).
Simply stated, 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 were never presented
to the state courts (i.e., exhausted) or because they were not properly presented to the state courts
(i.e., were procedurally defaulted), are generally not cognizable on federal habeas review.
In this case, Petitioner’s grounds for relief are procedurally defaulted. He asserted them on
direct appeal to the Ohio Eighth District Court of Appeals; however, he did not immediately appeal
that decision to the Ohio Supreme Court. His Motion for Delayed Appeal filed five months later
Under the state procedural mechanism, the Ohio Supreme Court has jurisdiction over timely
appeals which are exercised within 45 days of entry of the state appellate court’s decision. See Ohio
S.Ct Prac.R. II § 2(A)(1). The Ohio Supreme Court may in its discretion take jurisdiction over
untimely felony appeals upon Motion for Leave to File a Delayed Appeal pursuant to Ohio
S.Ct.Prac.R. II § 2(A)(4)(a). However, in those instances where the Ohio Supreme Court chooses
not to allow the delayed appeal but gives no reason for its decision, the Sixth Circuit has held that
the Ohio Supreme Court is presumed to have enforced the applicable procedural bar. See Bonilla
v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004); Smith v. State of Ohio Dept. of Rehab. and Corr., 463
F.3d 426, 431-32 (6th Cir. 2006). Denial of an Ohio S.Ct. Prac. R. II § 2(A) (4)(a) Motion for Leave
to File Delayed Appeal is not a ruling on the merits of any claim included with the Motion for
Leave, and has been determined to be an “adequate and independent” basis for procedural default
consistent with Maupin v. Smith. See Bonilla, 370 F.3d at 497; Smith, 463 F.3d at 431-32. The Ohio
Supreme Court denied Petitioner’s Motion for Leave without comment. His claims in this habeas
petition are therefore procedurally defaulted. See Bonilla, 370 F.3d at 497; Ohio S.Ct. Prac. R. II
§ 2(A)(4)(a). When a claim is procedurally defaulted, federal habeas review is barred unless the
Petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged
violation of federal law, or can demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner
can overcome a procedural default by showing (1) there was cause for him not to follow the
procedural rule and that he was actually prejudiced by the alleged constitutional error or (2) a
fundamental miscarriage of justice would result from a bar on federal habeas review. See Maupin,
785 F.2d at 138; see also Hutchison v. Bell, 303 F.3d 720, 735 (6th Cir. 2002); Combs v. Coyle, 205
F.3d 269, 274-75 (6th Cir. 2000). “[T]he existence of cause for a procedural default must ordinarily
turn on whether the prisoner can show that some objective factor external to the defense impeded
counsel’s efforts to comply with the state’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 484
(1986). “Such factors may include ‘interference by officials,’ attorney error rising to the level of
ineffective assistance of counsel, and ‘a showing that the factual or legal basis for a claim was not
reasonably available.’” Hargrave-Thomas v. Yukins, 374 F.3d 383, 388 (6th Cir. 2004) (quoting
McCleskey v. Zant, 499 U.S. 467, 493-94 (1991)). To establish prejudice, Petitioner must
demonstrate that the constitutional error “worked to his actual and substantial disadvantage.”
Perkins v. LeCureux, 58 F.3d 214, 219 (6th Cir. 1995) (quoting United States v. Frady, 456 U.S.
152, 170 (1982)).
The Petition does not suggest any factor external to the defense precluded Petitioner from
raising these claims in a timely appeal to the Supreme Court of Ohio. In fact, he acknowledges that
his appellate counsel informed him that he had only forty-five days to file his appeal to the Supreme
Court of Ohio. He offers no cause for the default.
Because the cause and prejudice standard is not a perfect safeguard against fundamental
miscarriages of justice, the United States Supreme Court has recognized a narrow exception to the
cause requirement where a constitutional violation has “probably resulted” in the conviction of one
who is “actually innocent” of the substantive offense. Dretke v. Haley, 541 U.S. 386, 392 (2004)
(citing Murray, 477 U.S. at 495-96). Petitioner pled guilty to the charges against him. He
challenges his consecutive sentences. There is no suggestion that a fundamental miscarriage of
justice occurred as a result of this procedural default.
Accordingly, the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is denied
and this action is dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases. Further,
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 there is no basis upon which to issue a certificate of appealability. 28
U.S.C. § 2253; Fed.R.App.P. 22(b). Petitioner’s Motion for Discovery (Doc. No. 4), Motion for
Expedited Hearing (Doc. No. 5), Motion for Evidentiary Hearing (Doc. No. 6), Motion for Release
on Recognizance (Doc. No. 7), Motion for Appointment of Counsel (Doc. No. 8) and Motion for
Default Judgment (Doc. No. 10) are denied as moot.
IT IS SO ORDERED.
S/James G. Carr
JAMES G. CARR
UNITED STATES DISTRICT JUDGE
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