Wells v. Miller
Filing
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Opinion and Order For the reasons already set forth in the R & R, the Objections (Doc #: 40 , 41 ) are overruled, the R & R (Doc #: 39) is adopted, the Petition (Doc #: 1 ) is denied, and the Amended Petition (Doc #: 14 ) is dismissed. Signed by Judge Dan Aaron Polster on 9/20/2016. (K,K)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ELLORD WELLS,
Petitioner,
vs.
MICHELE MILLER, WARDEN,
Respondent.
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CASE NO. 1:15 CV 951
JUDGE DAN AARON POLSTER
OPINION AND ORDER
This case is before the Court on the Report and Recommendation of Magistrate Judge
William H. Baughman, Jr. (Doc #: 39 (“R & R”).) On July 1, 2015, a state court sentenced
Petitioner Ellord Wells to eleven years in prison after he pled guilty to a charge of rape, to be
served consecutively with a one-year sentence for a probation violation. An Ohio appeals court
affirmed the conviction but reversed and remanded for resentencing. On January 13, 2015, the
trial court, under a limited remand, resentenced Wells to the same 11-year term imposed
originally, but made the necessary findings on the record to impose a sentence consecutive to the
probation-violation sentence. Thereafter, Wells filed a plethora of motions in state court.
On May 14, 2015, Wells filed the pending Petition Under 28 U.S.C. § 2254 for Writ of
Habeas Corpus by a Person in State Custody. (Doc #: 1 (“Petition”).) Therein, he raised three
grounds for relief that the Respondent contends should be denied after an AEDPA merits review.
On October 16, 2015, Wells filed the second pending Petition Under 28 U.S.C. § 2254 for Writ
of Habeas Corpus by a Person in State Custody, which the Court is treating as an Amended
Petition. (Doc #: 14 (“Amended Petition”).) Therein, he raised two grounds for relief that the
Respondent contends should be dismissed as procedurally defaulted. Wells filed traverses to
each return of writ. (Respectively, Doc #: 12, 25.) On September 9, 2016, Wells filed
Objections and, on September 19, 2016, he filed a supplement to his Objections – bringing to 48
the total number of pages of Objections. (Respectively, Doc ##: 40, 41.)
With respect to the Petition, Wells raises the same arguments that he did in his traverse
with respect to Grounds One through Three, all of which the Magistrate Judge addressed fully
and correctly. The only ground upon which this Court will expound involves Ground One –
judicial bias on the part of the sentencing judge. The Magistrate Judge correctly concluded that
the 12-year sentence for rape “was within sentencing guidelines and in accordance with the
defendant’s history and a need to protect the public.” (R & R at 27.) The Court notes only that
the sentencing court was understandably frustrated with Wells, who committed the rape while on
probation before that court and had a considerable criminal history for a 24-year old man. Such
frustration or irritability does not constitute judicial bias. Liteky v. United States, 510 U.S. 540
at 551 (1994) (“[O]pinions formed by the judge on the basis of facts introduced or events
occurring in the course of current proceedings, or of prior proceedings, do not constitute a basis
for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that
would make fair judgment impossible.”) Wells has shown no deep-seated favoritism or
antagonism on the part of the sentencing court.
With respect to the Amended Petition, Wells asserts that trial counsel was
constitutionally ineffective because he gave him incorrect advice regarding the rape shield law –
precluding Wells from defending himself at trial on the basis that the victim was a prostitute and
consented to having sex with him (Ground One). Wells claims that he would never have agreed
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to plead guilty and would have insisted on going to trial if he had correct legal advice. He also
claims that no reasonable fact finder would have found him guilty of rape. Wells also asserts
that trial counsel was constitutionally ineffective because he concealed medical reports and
police reports that, he claims, proves that there was “no possible way” the victim could have
been pushed on the ground in a dirt field,” “this very information would have [] changed the
outcome of the proceedings and would have had an adverse effect on [his] decision to plead
guilty;” and “no possible fact finder would have found [him] guilty of forcible rape” (Ground
Two). (Amended Petition at 7.) Respondent argued, and the Magistrate Judge agreed, that
these claims are procedurally defaulted. The Magistrate Judge set forth an accurate reflection of
the record in concluding that Wells procedurally defaulted both grounds, and the Court agrees
with his conclusion. The Court also notes that this case does not represent the extremely rare
demonstration of a credible claim of actual innocence, Souter v. Jones, 395 F.3d 577, 600 (6th
Cir. 2005), which is factual innocence and not mere legal insufficiency, Bousley v. United States,
523 U.S. 614, 623 (1998). The Court has reviewed the record and the reports, and finds that
Wells has failed to set forth a credible claim of factual innocence. The reports do not show that
no reasonable factfinder would have found Wells guilty of rape. There is plenty of evidence in
the record, including pleading guilty to the fact that he committed rape, that detract from a
genuinely credible claim of factual innocence.1 In addition to the present claims being
procedurally defaulted, Wells has failed to show anything more than legal insufficiency.
Citation to Trevino v. Thaler, 133 S.Ct. 1911 (2013) in his Objection is therefore unavailing.
1
This evidence includes post-sentencing averments that he was on Seroquel and Celexa
when he pled guilty, and that his trial counsel told him to just answer “yes” to every question the
sentencing judge asked - both of which contradict the plea colloquy record.
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Accordingly, for the reasons already set forth in the R & R, the Objections (Doc #: 40,
41) are OVERRULED, the R & R (Doc #: 39) is ADOPTED, the Petition (Doc #: 1) is
DENIED, and the Amended Petition (Doc #: 14) is DISMISSED.
IT IS SO ORDERED.
/s/ Dan A. Polster September 20, 2016
Dan Aaron Polster
United States District Judge
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