Johnson v. Hudson
Filing
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Memorandum Opinion: Petitioner's objections to the R&R are overruled. The petition for writ of habeas corpus is denied and this case will be dismissed with prejudice by separate order. Further, the Court certifies 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. Sections 1915(a)(3), 2253(c); Fed. R. App. P. 22(b). (Related Doc # 34 ). Judge Sara Lioi on 3/31/2012. (P,J)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MWANIKI JOHNSON,
PETITIONER,
vs.
STUART HUDSON, Warden,
RESPONDENT.
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CASE NO. 3:07CV0095
JUDGE SARA LIOI
MEMORANDUM OPINION
Before the Court is the Report & Recommendation (“R&R”) of Magistrate Judge
Nancy A. Vecchiarelli (Doc. No. 34), which recommends denial of the petition for writ of habeas
corpus and dismissal of the case. Petitioner filed objections (Doc. No. 35) and respondent filed a
response to those objections (Doc. No. 37).
The Court has conducted its de novo review of the matters raised in the
objections. Fed. R. Civ. P. 72(b)(3). For the reasons discussed below, petitioner’s objections are
overruled. The petition for writ of habeas corpus is denied and the case is dismissed with
prejudice.
I. FACTUAL BACKGROUND
The complete factual and procedural history of this case was accurately set forth
in the R&R, with no objections. Therefore, that background is adopted.
For purposes of petitioner’s objections, the following facts, as set forth by the
state appellate court as “undisputed,” are relevant:
*** On January 9, 2003, appellant was charged in a two-count indictment with
one count of felonious assault in violation of R.C. 2903.11, with a firearm
specification and a repeat violent offender specification; and one count of
attempted murder in violation of R.C. 2923.02, with a firearm specification and a
repeat violent offender specification.
{¶ 9} The charges arose out of a shooting that occurred on the night of November
14, 2002, in Toledo, Ohio. The incident occurred at the home of appellant’s
girlfriend, Sheronda Daugherty, following an argument between appellant and the
victim, Anthony King. According to testimony at trial, at one point during the
dispute, appellant left the room and returned with a shotgun. Appellant shot King
in the back as King walked out of the house. Appellant then came out of the
house, said something to King as he lay on the ground, walked toward the
basement of the house and left the scene. Police apprehended appellant a short
time later riding in his father's truck.
{¶ 10} The matter proceeded to trial and on April 30, 2003, the jury returned a
verdict of guilty as to attempted murder and the firearm specification but did not
return a verdict as to the felonious assault count. Over appellant’s objection, the
trial court ordered the jury to deliberate further and return a verdict as to Count 1.
The jury then returned a verdict of guilty as to the felonious assault count and the
firearm specification. On May 6, 2003, the trial court held a hearing to determine
whether appellant was a repeat violent offender pursuant to R.C. 2941.149. The
trial court found appellant to be a repeat violent offender following the testimony
of appellant’s probation officer that he had previously been charged with and
convicted of felonious assault after shooting someone in the chest. On May 21,
2003, the matter was called for a sentencing hearing and appellant was sentenced
to serve ten years imprisonment for the attempted murder conviction, three years
for the firearm specification and an additional two years based on the finding that
he was repeat violent offender. The trial court ordered that all of the sentences be
served consecutively. At that time, the trial court did not impose a sentence for the
felonious assault conviction and the firearm specification attached to that charge.
{¶ 11} Appellant began to serve his sentence, and on June 17, 2003, the case was
called for a sentence review hearing. At that time, the trial court ordered the
original sentence modified. The trial court sentenced appellant to ten years for the
attempted murder conviction and eight years for the felonious assault conviction.
In addition, appellant was sentenced to serve three years for each firearm
specification, four years for the repeat violent offender finding as to the felonious
assault conviction, and two years for the repeat violent offender finding as to the
attempted murder conviction. The trial court then ordered the two fifteen-year
sentences to be served concurrently with the exception of the three-year firearm
specification from Count 1, which was to be served consecutively, for a total
sentence on all charges of eighteen years.
2
State v. Johnson, No. L-03-1206, 2005 WL 635023, at *1-2 (Ohio Ct. App. Mar. 18, 2005).
II. PROCEDURAL BACKGROUND
The procedural background was also thoroughly reviewed in the R&R and need
only be repeated here to the extent it relates to the petitioner’s objections to the R&R.
On July 17, 2003, represented by new counsel, petitioner filed a timely direct
appeal, raising five assignments of error:
I.
The trial court erred by instructing the jury that they could consider flight
from the scene in determining the guilt of defendant.
II.
The trial court erred in finding that defendant was a repeat violent
offender.
III.
The trial court erred by violating the double jeopardy clause of the State of
Ohio and United States Constitutions by allowing the jury to consider
felonious assault after they returned with a verdict on the attempt murder
charge.
IV.
The trial court erred by violating the double jeopardy clause of the State of
Ohio and United States Constitutions by entering a sentence for felonious
assault after defendant=s sentencing hearing had been held and the court
had already journalized its sentencing order.
V.
The trial court erred by imposing the maximum sentence.
(Return of Writ, Ex. 8, Doc. No. 9-2 at 2.) On March 18, 2005, the state court of appeals
affirmed the judgment of the trial court. (Id., Ex. 10, Doc. Nos. 9-4, 9-5.) Still represented by
counsel, petitioner appealed to the Ohio Supreme Court raising the same five issues. On August
10, 2005, the Ohio Supreme Court denied leave to appeal. (Id., Ex. 14, Doc. No. 9-7 at 18.)
On June 7, 2005, before the Ohio Supreme Court rejected his appeal, petitioner
filed a pro se application to reopen his direct appeal pursuant to Ohio App. R. 26(B), raising one
assignment of error:
3
Appellant was denied his Sixth Amendment right to the effective assistance of
appellate counsel because counsel failed to brief, as an assignment of error, trial
counsel’s ineffective assistance of his failure to object to the illegal sentence
imposed under existing law at the time of sentencing, which prejudiced appellant
to a substantial increase in the term of appellant’s confinement. U.S. Const.
Amend. VI, XIV; Ohio Const. Art. I §§ 10 and 16.
(Return, Ex. 15, Doc. No. 9-7 at 19-30.) On June 28, 2005, the state appellate court denied
petitioner’s application to reopen. (Id., Ex. 16, Doc. No. 9-7 at 31-34.)
III. DISCUSSION
The R&R accurately notes that petitioner exhausted his available state remedies
and has not procedurally defaulted on either of the two grounds raised in his habeas petition.
Respondent has not argued otherwise.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”):
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim-(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).
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A.
The R&R
1.
Ground One
In his first ground, petitioner asserts that the trial court violated the double
jeopardy clause by bringing him back from prison to be resentenced to additional incarceration
after he had already begun serving his sentence.
The R&R concludes that the resentencing did not violate double jeopardy because
it did not involve a second prosecution or multiple punishments for the same offense; nor did his
resentencing include an additional sentence upon a conviction for which he had already received
punishment. See Brown v. Ohio, 432 U.S. 161, 165-66 (1977). Rather, petitioner was first
sentenced for the attempted murder conviction and the resentencing only added a sentence for
the felonious assault conviction. Therefore, because petitioner failed to demonstrate that the state
appellate court’s finding that his resentencing did not violate the double jeopardy clause was
contrary to, or an unreasonable application of, a holding of the Supreme Court, the R&R
recommends dismissal of ground one. (R&R at 12-14.)
Neither party has objected to this recommendation and, therefore, it is accepted.
2.
Ground Two
In this ground, petitioner argues that he was denied effective assistance of
appellate counsel, in violation of the Sixth and Fourteenth Amendments, due to counsel’s failure
to raise the issue that the trial court erred by sentencing petitioner to maximum consecutive
sentences in violation of the mandate embodied in Apprendi v. New Jersey, 530 U.S. 466 (2000)
and Blakely v. Washington, 542 U.S. 296 (2004).
The R&R characterizes ground two as a claim that appellate counsel was
ineffective for failing to argue on direct appeal that trial counsel was ineffective for his failure to
raise an Appendi/Blakely argument. (R&R at 14.) Petitioner challenges this characterization,
correctly noting that his argument here has consistently been, not that appellate counsel was
ineffective for failing to raise some ineffectiveness of trial counsel, but that appellate counsel
was ineffective “in failing to raise an issue on direct appeal regarding the then newly minted
decision in Blakely v. Washington, 542 U.S. 296 (2004).” (Objections, Doc. No. 35 at 2.)1
Petitioner objects to the R&R for its failure to address the actual issue he raised.2 Therefore, this
Court will address whether petitioner’s appellate counsel was ineffective for failure to raise a
challenge to petitioner’s sentence under Blakely.3
“The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668,
686 (1984).
1
Petitioner did raise the issue addressed in the R&R in his motion to reopen his appeal filed in state court. However,
after the motion was denied, petitioner made no attempt to appeal that denial to the Ohio Supreme Court and has not
further pursued that claim. Therefore, it would be procedurally defaulted.
2
The R&R determines that petitioner cannot argue that trial counsel was ineffective for failure to raise a Blakely
challenge because Blakely had not been decided at the time of his sentencing. Therefore, the R&R concludes that
“the only remaining question, then, is whether trial counsel was ineffective for failing to object to Johnson’s
sentence in light of Apprendi.” (R&R at 18.) The R&R also concludes:
At the time of Johnson’s sentencing, no Ohio appellate court had found that Apprendi prohibited a
sentence such as Johnson’s. Indeed, every Ohio appellate court to consider the matter found that
such sentences were permitted by Apprendi. Thus, at the time of sentencing, it was entirely
reasonable for Johnson’s trial counsel to not object to Johnson’s sentence on the basis of
Apprendi. At that time, there was no likelihood that such an objection would have succeeded.
Therefore, the performance of Johnson’s [trial] counsel did not fall below an objective standard of
reasonableness, and Johnson’s trial counsel was not ineffective.
(R&R at 19-20.) Because petitioner is correct that this was not the argument he raised, the Court need not give this
conclusion de novo review. That said, in light of the Court’s discussion herein relating to the actual second ground,
there is no reason to reject the R&R’s conclusion.
3
Strictly speaking, since this particular version of ground two has never been submitted to the state courts, it is
procedurally defaulted. However, respondent did not raise this issue except in passing in the response to the
objections. See Doc. No. 37, at 3-4 (“Respondent did not challenge Ground Two as procedurally defaulted or as not
fairly presented, though it was.”). Although this would be sufficient reason to reject ground two, for purposes of
thoroughness, the Court will address it.
6
A convicted defendant’s claim that counsel’s assistance was so defective as to
require reversal of a conviction or . . . sentence has two components. First, the
defendant must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as
the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or . . . sentence resulted from a
breakdown in the adversary process that renders the result unreliable.
Id. at 687. This standard is applicable to claims of ineffective assistance of both trial and
appellate counsel. Williams v. Booker, No. 10-1785, 2012 WL 15722, at *3 (6th Cir. Jan. 5,
2012) (citing See Webb v. Mitchell, 586 F.3d 383, 398 (6th Cir.2009); Smith v. State of Ohio
Dept. of Rehab. & Corrs., 463 F.3d 426, 433 (6th Cir.2006)).
Petitioner was initially sentenced on May 21, 2003 and then resentenced on June
17, 2003. His notice of appeal was filed on July 16, 2003 and his appellate brief was filed on
January 7, 2004. Blakely was not decided until June 24, 2004. Therefore, it cannot have been
error for appellate counsel to have failed to raise a Blakely challenge when Blakely had not yet
been decided as of the relevant dates in petitioner’s proceedings.4
On March 18, 2005, the Court of Appeals for the Sixth Appellate District of Ohio
affirmed petitioner’s conviction and sentence, with no one having raised any Blakely challenge
even though, by then, Blakely had been decided. However, even if appellate counsel had been
able to amend the appellate brief to raise Blakely after June 24, 2004, that argument would not
4
Furthermore, as the R&R points out, although Apprendi had been decided about three years before petitioner was
sentenced, all Ohio appellate courts that had addressed the issue by the time of petitioner’s sentencing had found
Apprendi inapplicable to Ohio’s sentencing scheme. See State v. Huntley, No. 02CA15, 2002 WL 31769238, at *5
(Ohio Ct. App. Dec. 9, 2002) (“like other districts who have addressed this issue, we find Apprendi inapplicable to
Ohio’s sentencing scheme, so long as the sentence is not outside the possible, maximum sentence for the crime to
which the defendant pleads. See State v. Carter, Lucas App. No. CR-99-2248, 2002-Ohio-3433; State v. Seese,
Lorain App. Nos. 01CA007852, 01CA007889, 2002-Ohio-1998; State v. Brown, Montgomery App. No. 18643,
2002-Ohio-277; and State v. Neal (Aug. 13, 2001), Stark App. No.2001CA00067.”)
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have succeeded in the Sixth Appellate District. On the very same day it decided petitioner’s
appeal, that appeals court also decided State v. Curlis, No. WD-04-032, 2005 WL 635025 (Ohio
Ct. App. Mar. 18, 2005), wherein it held:
The Blakely protections of a defendant’s right to trial by jury are not implicated
under Ohio’s sentencing scheme. Our analysis leads us to conclude that Blakely
applies only when the maximum sentence in the available range for an offense has
been exceeded which, under Ohio law, simply does not occur. The determinate
sentencing scheme in Washington is unlike Ohio sentencing provisions. The
Washington statutes set ceilings on sentencing based on a defendant’s proven
conduct, while Ohio law directs judicial discretion within an indeterminate
sentencing scheme, permitting a judge to exercise discretion within that range.
See State v. Berry, 12th Dist. No. CA 2003-02-053, 2004-Ohio-6027. In Blakely,
the trial court found an additional factor which it used to enhance the defendant’s
sentence beyond the prescribed range to a term of 90 months. In the present case,
the trial court sentenced appellant within the statutory range for a third-degree
felony.
Id. at *3 (emphasis in original). The court in Curlis also noted that “[d]iscretionary appeals
raising the issue of Blakely’s application to Ohio sentencing law are pending before the Supreme
Court of Ohio in State v. Quinones, 8th Dist. No. 83720, 2004-Ohio-4485, and State v. Foster,
5th Dist. No. 03CA95, 2004 Ohio 4209.” Id., n.1. Of course, on February 27, 2006, long after
petitioner’s appeals were completed, the Ohio Supreme Court ultimately determined in Foster,
that portions of Ohio’s sentencing statutes were unconstitutional under Apprendi and Blakely; it
severed those portions of the statutes and held that “[t]rial courts have full discretion to impose a
prison sentence within the statutory range and are no longer required to make findings or give
their reasons for imposing maximum, consecutive, or more than the minimum sentences.” State
v. Foster, 109 Ohio St. 3d 1 (2006), Syllabus ¶ 7; see also Baker v. Voorhies, 392 F. App’x 393,
401 (6th Cir. 2010) (“[t]hat the entire Ohio appellate bench (at least through February 2005) and
the state sentencing commission failed to see the merit in a Blakely challenge to the Ohio felony-
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sentencing statute makes it impossible to conclude that Foster was ‘clearly foreshadowed’ at the
time of Baker’s appeal in July 2004.”).5
In his traverse, petitioner argues that “[t]he fact that the Ohio Courts did not
correctly apply Blakely until 2006 should have no relevance as to whether or not petitioner
should be afforded habeas corpus relief because their decision that Blakely did not apply to Ohio
was in violation of clearly established federal law as determined by the United States Supreme
Court.” (Traverse, Doc. No. 10, at 5.) However, this argument misses the point. This Court is not
deciding whether petitioner was properly sentenced. This Court is determining only whether,
under the case law as it existed at the time of his direct appeal, it was ineffective assistance of
appellate counsel to fail to raise a Blakely challenge. The Court concludes that it was not.
Therefore, upon the Court’s de novo review, ground two must be overruled and
habeas relief on that ground denied.
5
In Baker, the appellate brief was filed just over two weeks after Blakely was decided. Baker argued that appellate
counsel was ineffective for failing to raise a Blakely challenge on direct appeal. In denying Baker’s habeas petition,
the district court concluded that appellate counsel was not ineffective since, “at the time Baker’s direct appeal was
filed, ... counsel had no reason to believe that a Blakely challenge would be successful in Ohio and good reason to
believe that [it] would not be successful ....” 392 F. App’x at 397 (alterations in original). Affirming the district
court’s denial of the petition, the Sixth Circuit noted: “[W]e have already held three times that an Ohio attorney was
not ineffective for failing to anticipate the outcome in Foster.” 392 Fed. App’x at 395 (citing Henley v. Brunsman,
379 F App’x 479 (6th Cir. 2010); Thompson v. Warden, Belmont Corr. Inst., 598 F.3d 281, 285-86 (6th Cir. 2010);
Benning v. Warden, Lebanon Corr. Inst., 345 F. App’x 149, 157 (6th Cir. 2009)).
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IV. CONCLUSION
For the reasons set forth herein, petitioner’s objections to the R&R are overruled.
The petition for writ of habeas corpus is DENIED and this case will be DISMISSED with
prejudice by separate order. Further, the Court certifies 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. §§ 1915(a)(3), 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
Dated: March 31, 2012
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE
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