Clark v. Jones

Filing 13

Memorandum and Order that Petitioner's Motion to expand the record is DENIED (Related Doc # 11 ). Signed by Magistrate Judge Kenneth S. McHargh on 2/6/2015.(M,De)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

WILLIAM FRANKLIN CLARK,
Petitioner
v.
KEVIN JONES,
Warden,
Respondent

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3:14CV1370
JUDGE BENITA Y. PEARSON
(Magistrate Judge Kenneth S. McHargh)

MEMORANDUM
AND ORDER

McHARGH, MAG. J.
The petitioner William Franklin Clark (“Clark”) has filed a petition pro se for
a writ of habeas corpus, arising out of his 2010 convictions for attempted
kidnapping and attempted felonious assault in the Lucas County (Ohio) Court of
Common Pleas. In his petition, Clark raises four grounds for relief, which can be
summarized as:
1. Ineffective assistance of trial counsel [failure to present mitigating
evidence; speedy trial waivers; manipulated plea].
2. Ineffective assistance of trial counsel [failure to investigate alibi
witnesses].
3. Trial court erred in violation of Ohio Rev. Code § 2945.37 and the
14th Amendment by failing to hold a competency hearing.
4. “Plea was not made knowingly, intelligently and voluntarily;
competency was never determined, stipulated to, nor was a hearing for
competency held.”

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(Doc. 1, § 12.)
The respondent has filed a Return of Writ (doc. 7), and Clark has filed a
response (doc. 10). Currently before the court is Clark’s Motion to Order
Respondent to provide Presentence Investigation Report. (Doc. 11.) The respondent
has filed a brief in opposition. (Doc. 12.)
Rule 5(c) of the Rules Governing Section 2254 Cases provides, in relevant
part: “The respondent must attach to the answer parts of the transcript that the
respondent considers relevant.” The judge may order additional portions to be
provided. The respondent is also required to file any briefs, opinions, and
dispositive orders relating to the contested conviction or sentence. Rule 5(c) of the
Rules Governing Section 2254 Cases. The respondent has submitted the state court
record. (Doc. 7, exhibits.)
Rule 7 of the Rules Governing Section 2254 Cases permits federal habeas
courts to direct the parties to supplement the state court record with materials
relevant to the resolution of the petition. The decision whether to order an
expansion of the record under Rule 7 is within the sound discretion of the district
court. Ashworth v. Bagley, No. C-2-00-1322, 2002 WL 485003, at *11 (S.D. Ohio
Mar. 28, 2002) (citing Ford v. Seabold, 841 F.2d 677, 691 (6th Cir.), cert. denied, 488
U.S. 928 (1988)). However, expansion of the record must not undermine the
presumption of correctness of any factual finding made by the state courts. Id. at
*13 (citing 28 U.S.C. § 2254(e)(1)). A petitioner may not seek to overcome an

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adverse state court decision with new evidence introduced in a federal habeas court.
Cullen v. Pinholster, 131 S.Ct. 1388, 1399 (2011).
Clark’s motion asserts that a copy of his presentence investigation report
should be part of the record in this habeas proceeding “so that he can determine
potential assignments of error on appeal,” and that Ohio Rev. Code § 2951.03
demonstrates the legislature’s intent that he should have access to this report to
meaningfully challenge his sentence on appeal. He also states that “Clark’s
condition at time of trial is an issue raised upon appeal . . . [specifically], the issue
of competency to stand trial.” (Doc. 11, at 1.)
The respondent notes that, under Ohio law, Clark and his counsel were
entitled to view portions of the presentence report prior to sentencing, but that all
copies of the report are to returned to the court after sentencing. (Doc. 12, at 2.) A
defendant is not entitled to receive a copy of his presentence report after conviction.
(Doc. 12, at 2, citing State v. Dietz, 89 Ohio App.3d 69, 623 N.E.2d 613 (Ohio Ct.
App. 1993).) The respondent points out that the record indicates the counsel for
Clark did review the report. (Doc. 12, at 1, citing Sentencing Tr., at 3.)
More importantly, the respondent argues that Clark’s condition at sentencing
is irrelevant to the four grounds he raises in his habeas petition. (Doc. 12, at 4.)
See generally Williams v. Trombley, No. 05-CV-71580, 2007 WL 3124677, at *1
(E.D. Mich. Oct. 25, 2007) (petitioner must show specific need for materials); United
States ex rel. Williams v. Delaware, 427 F.Supp. 72, 73-74 (D. Del. 1976); Bozeman
v. United States, 354 F.Supp. 1262, 1263 (E.D. Va. 1973).
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The petitioner is reminded that the task of a federal habeas court is not to retry his case, nor to overturn state court judgments by substituting the judgment of
this court. Neace v. Edwards, No. 02-4079, 2005 WL 1059274, at *6 (6th Cir. May
6, 2005) (citing Barefoot v. Estelle, 463 U.S. 880, 887 (1983)). Federal district courts
are not simply another level of “appellate tribunals to review alleged errors in state
court judgments of conviction.” Baker v. Reid, 482 F.Supp. 470, 471 (S.D. N.Y.
1979).
Rather, the question before this federal habeas court is whether the state
court decision was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States.
Williams v. Taylor, 529 U.S. 362, 412-413 (2002). The documents and exhibits filed
by the respondent appear satisfactory to allow the court to make that
determination.
The motion to expand the record (doc. 11) is DENIED.

IT IS SO ORDERED.

Dated:

Feb. 6, 2015

/s/ Kenneth S. McHargh
Kenneth S. McHargh
United States Magistrate Judge

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