West v. Bradshaw

Filing 33

Opinion & Order signed by Judge James S. Gwin on 2/7/17. Upon consideration of the petitioner's untimely objections, the Court adopts the Magistrate Judge's Report and Recommendation and incorporates it fully herein by reference. The Court denies petitioner's 28 U.S.C. § 2254 habeas petition. (Related Docs. 1 , 29 , 30 and 32 ) (D,MA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
-----------------------------------------------------TODD WEST,
Petitioner,
vs.
MAGGIE BRADSHAW, Warden,
Respondent.

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CASE NO. 1:15-CV-669

OPINION AND ORDER
[Resolving Doc. 1]

-----------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Todd West petitions for habeas corpus relief under 28 U.S.C. § 2254.1 On December 29,
2016, Magistrate Judge James R. Knepp II recommended that the Court dismiss the case.2
Objections to Magistrate Judge Knepp’s Report and Recommendation (“R&R”) were due by
January 12, 2017. On February 1, 2017, nearly three weeks after Petitioner’s objections were
due, this Court entered an order denying Petitioner’s claim.3
Later in the day on February 1, 2017, the Court received Petitioner West’s untimely
objections to the R&R.4 Petitioner appears to have mailed his objections on January 23, 2017,
eleven days after the due-date.
For the reasons below, the Court ADOPTS Magistrate Judge Knepp’s Report and
Recommendation and incorporates it fully herein by reference. The Court DENIES Petitioner’s
habeas petition.

1

Doc. 1. Respondent filed a return of writ. Doc. 12. Petitioner replied. Doc. 16. Respondent filed a sur-reply. Doc.
17. Petitioner filed a supplemental response, Doc. 21, to which Respondent replied, Doc. 25. Petitioner then filed a
second supplemental response. Doc. 26.
2
Doc. 29.
3
Doc. 30.
4
Doc. 32.

Case No. 1:15-CV-669
Gwin, J.
I.

Legal Standard

The Federal Magistrates Act requires a district court to conduct a de novo review only of
those portions of the R&R to which the parties have properly objected.5 A district court may
adopt without review parts of the R&R to which no party has objected.6
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 7 controls habeas
review of state court proceedings. AEDPA generally requires that a petitioner exhaust all of his
available state court remedies before seeking habeas relief.8 To satisfy the exhaustion
requirement, the state courts must have “one full opportunity to resolve any constitutional
issues.”9 A district court will not consider a habeas petitioner’s “contentions of federal law . . .
not resolved on the merits in the state proceeding due to [a petitioner’s] failure to raise them
there as required by state procedure.”10
Nor will a district court consider alleged violations of state law.11 “In conducting habeas
review, a federal court is limited to deciding whether a conviction violated the Constitution,
laws, or treaties of the United States.”12
II.

Discussion

Failure to object “to a magistrate judge’s report within the time provided for filing
objections operates as a waiver” of that party’s right to object.13 The Court may excuse
noncompliance “in the interests of justice.”14

5

28 U.S.C. § 636(b)(1).
Thomas v. Arn, 474 U.S. 140, 149 (1985).
7
28 U.S.C. § 2254.
8
28 U.S.C. § 2254(b)(1)(A).
9
O’Sullivan v. Boerckel, 526 U.S. 838, 838 (1999).
10
Wainwright v. Sykes, 433 U.S. 72, 87 (1977); see also Lundgren v. Mitchell, 440 F.3d 754, 763–64 (6th Cir.
2006).
11
Smith v. Morgan, 371 F. App’x 575, 582 (6th Cir. 2010) (citing 28 U.S. § 2254(a)).
12
Estelle v. McGuire, 502 U.S. 62, 68 (1991).
13
Bosley v. 21 WFMJ Television, Inc., 245 F. App’x 445, 450 (6th Cir. 2007) (citing United States v. Walters, 638
F.2d 947, 949–50 (6th Cir. 1981)).
14
Id. at 450.
6

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Case No. 1:15-CV-669
Gwin, J.
Petitioner West waived his right to object to the R&R by submitting his objections late.
Even if the objections were timely, however, his petition would fail on the merits.
In his petition, West raised six grounds for relief: (1) the state trial court erred in failing
to exclude evidence obtained in violation of the Fourth Amendment; (2) Petitioner’s trafficking
conviction was not supported by sufficient evidence and therefore violates his Fourteenth
Amendment Due Process rights; (3) appellate counsel failed to provide effective assistance of
counsel by failing to raise the trial court’s admission of statements taken in violation of Miranda;
(4) appellate counsel failed to provide effective assistance of counsel by failing to raise certain
suppression arguments; (5) Petitioner was denied due process when his property was improperly
seized; and (6) trial counsel failed to provide effective assistance of counsel by failing to raise a
variety of arguments.15
In Petitioner’s objections to the R&R, he largely reiterates these arguments but does not
address the Magistrate Judge’s analysis.16 The Magistrate Judge properly concluded that
Petitioner’s claims fail.
Ground One – Fourth Amendment Violation
Petitioner’s Fourth Amendment claim fails. “[W]here the State has provided an
opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be

15

Doc. 1 at 4-6. Petitioner made the following four arguments in support of his ineffective assistance of trial counsel
claim: “a. Contrary to the state court’s rulings trial counsel rendered ineffective assistance when counsel erroneously
waived the suppression hearing prior to trial in regards to the thermal imaging flyover and the search and seizure of
evidence obtained from the Scranton Avenue property[.]; b. Contrary to the state court rulings the Petitioner’s
Fourth Amendment rights were violated when law enforcement officers performed a thermal imaging flyover of the
Scranton Avenue property without a search warrant and trial counsel rendered ineffective assistance of counsel
when counsel waived the suppression hearing that would have challenged the alleged search warrant to conduct the
thermal imaging flyover that never existed[.]; c. Contrary to the state court rulings the Petitioner was denied his
constitutional rights under the Due Process Clause when the prosecution committed misconduct by failing to
disclose evidence that was favorable to the defense under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10
L.Ed.2d 215(1963)[.]; d. Contrary to the state court rulings the Petitioner was denied a fair trial when false and
misleading testimony was used by police to obtain the search warrant for the Scranton Avenue building and
property[.]” Id.
16
Compare Doc. 1 with Doc. 32.

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Case No. 1:15-CV-669
Gwin, J.
granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced in his trial.”17
Petitioner complains that his opportunity to litigate his Fourth Amendment claim was
inadequate.18 But federal law requires “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.”19 Because Petitioner had a fair opportunity to argue his claim, ground one fails.
Ground Two – Insufficient Evidence
Petitioner’s insufficient evidence argument is procedurally defaulted. Although Petitioner
argued that his trafficking conviction lacked support throughout his state court appeal, he never
presented the argument as a federal constitutional claim.20
A federal constitutional claim must be “fairly presented” to the Ohio state courts to
proceed to habeas review.21 Because Petitioner did not ground his argument in federal law in
state court, it is procedurally defaulted.
Ground Three – Ineffective Assistance of Appellate Counsel/Miranda Violation
Petitioner’s third argument fails on the merits. A federal court’s review of an ineffective
assistance of counsel claim in a state habeas petition is “doubly” deferential.22 The Court agrees
with the state court’s conclusion that Petitioner waived his Miranda rights.23 Moreover,

17

Stone v. Powell, 428 U.S. 465, 494 (1976).
Doc. 32 at 5-7.
19
Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013).
20
Doc. 29 at 24 (citing State v. West, 2012 WL 6727613, at *1-3 (Ohio Ct. App. Dec. 27, 2012)).
21
Clinkscale v. Carter, 375 F.3d 430, 437 (6th Cir. 2004). “A petitioner can take four actions in its brief which are
significant to the determination as to whether a claim has been fairly presented: (1) reliance upon federal cases
employing constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis; (3)
phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific
constitutional right; or (4) alleging facts well within the mainstream of constitutional law.” Id. (quoting Newton v.
Million, 349 F.3d 873, 877 (6th Cir. 2003)). Petitioner satisfied none of the Clinkscale factors.
22
See, e.g., Harrington v. Richter, 562 U.S. 86, 105 (2011) (“The standards created by Strickland and the
Antiterrorism and Effective Death Penalty Act (AEDPA) are both highly deferential, and when the two apply in
tandem, review is doubly so.”).
23
Doc. 29 at 41-44 (state court testimony reflecting Miranda waiver).
18

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Case No. 1:15-CV-669
Gwin, J.
Petitioner’s appellate counsel did not provide constitutionally deficient service in failing to argue
otherwise. Petitioner’s ground three argument fails.
Ground Four - Ineffective Assistance of Appellate Counsel/Suppression Argument
Petitioner’s fourth argument is procedurally defaulted. While he argued on appeal that his
trial counsel was ineffective for failing to preserve the record for his suppression argument, he
did not exhaust the same argument as to his appellate counsel.24
The claim also fails on the merits. Under the “doubly deferential” review of state court
determinations of ineffective assistance of counsel claims, this Court finds that appellate
counsel’s strategy in handling Petitioner’s suppression argument was not constitutionally
deficient.25
Ground Five – Property Forfeiture Due Process Violation
Ground five is both procedurally defaulted and non-cognizable. As with ground two
discussed above, Petitioner’s wrongful forfeiture claim fails because the argument was never
“fairly presented” to the Ohio state courts as a federal constitutional due process claim.
Therefore, it is procedurally defaulted.26
Petitioner’s argument is also non-cognizable because it concerns a state-court ruling on
state law. This Court does not review an Ohio state court’s determination whether Petitioner’s
property was wrongfully forfeited under Ohio law. Thus, ground five fails.

Doc. 29 at 27 (citing West, 2014 WL 265482, at *4). The Court agrees with Magistrate Judge Knepp’s res
judicata analysis as well. Id. Petitioner can no longer raise his ineffective assistance claim in state court because it is
barred by res judicata, which further supports the procedural default finding.
25
For example, Petitioner challenges counsel’s decision to rely on his written motion as opposed to demanding an
evidentiary hearing. Doc. 1 at 31-32. His trial counsel’s choice to move forward on the written arguments alone is
not constitutionally deficient under Strickland. Nor is his appellate counsel’s decision not to challenge the trial
lawyer’s approach.
26
Clinkscale, 375 F.3d at 437; see also West, 2012 WL 6727613, at *8 (no discussion of federal constitutional
provisions or case law in the state appellate decision).
24

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Case No. 1:15-CV-669
Gwin, J.
Ground Six - Ineffective Assistance of Trial Counsel
Petitioner’s last claim for relief also fails. As the R&R lays out in more detail,27 the Ohio
state appellate court found that Petitioner’s ineffective assistance of trial counsel claim failed on
Ohio state law procedural grounds.28 Thus, those claims are procedurally defaulted for habeas
review.29
III.

Conclusion

Accordingly, the Court ADOPTS Magistrate Judge Knepp’s Report and
Recommendation and incorporates it fully herein by reference. The Court DENIES Petitioner’s
habeas petition.
IT IS SO ORDERED.

Dated: February 7, 2017

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

27

Doc. 29 at 29-32.
Id. at 31-32. Specifically, the appellate court found that Petitioner failed to properly amend his post-conviction
petition to include certain substantive arguments, and also found those arguments to be barred by Ohio’s res
judicata doctrine.
29
Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006) (“A federal habeas petitioner can procedurally default a
claim by failing to obtain consideration of a claim by a state court, either due to the petitioner’s failure to raise that
claim before the state courts while state-court remedies are still available or due to a state procedural rule that
prevents the state courts from reaching the merits of the petitioner’s claim.”) (internal quotations omitted).
28

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