Mote v. State of Ohio

Filing 6

Order: Petitioner's Application to Proceed In Forma Pauperis (Doc No. 2 ) be, and the same hereby is, granted. The petition for a writ of habeas corpus (Doc. [1)] be, and the same hereby is, denied. No certificate of appealability will issue, as reasonable jurists would not debate the court's procedural-default ruling. 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. Judge James G. Carr on 2/9/17. (C,D)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO

Roland Mote,

Case No. 3:16 CV 2518
Petitioner,

JUDGE JAMES G. CARR

v.
OPINION AND ORDER
State of Ohio,
Respondent.

Pro se Petitioner Roland Mote filed the above-captioned Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254. Mote is currently incarcerated in the Ross Correctional Institution,
having been convicted in 2015 in the Mercer County Court of Common Pleas on one count of
engaging in a pattern of corrupt activity and three counts of breaking and entering.
Background
Mote was the passenger in a vehicle that was the subject of a traffic stop in Celina, Ohio on
January 4, 2014. Celina Police Chief Thomas Wale initiated the stop. State v. Mote, No. 10-15-05,
2015 WL 5320003, at *2 (Ohio Ct. App. 3 Dist. Sept. 14, 2015). After approaching the driver and
indicating the reason for the stop, Wale returned to the cruiser and called for the Celina K-9 unit to
perform a “walk around” the vehicle. Id.

The K-9 unit arrived four minutes after receiving the call. Wale was in his cruiser writing
the ticket when the unit arrived. Officer Harting took the canine around the vehicle and reported to
Wale that it had alerted to the presence of illegal substances in the vehicle. Id.
At that point, Wale stopped writing the traffic citation, instructed the driver to step out of the
vehicle, and conducted a pat-down search of him. Id. While Wale was talking with the driver,
another patrolman arrived at the scene. Id. Harting instructed Mote to exit the vehicle, and while
the other patrolman conducted a pat-down search of Mote, Harting searched the vehicle. Id. It
appears the evidence seized from the vehicle led to the arrest of Mote and Miller.
Mote was indicted on January 23, 2014 by the Mercer County Grand Jury on one count of
engaging in a pattern of corrupt activity and five counts of breaking and entering. He filed a Motion
to Suppress the evidence, arguing he was unlawfully detained and arrested, and asking the court to
exclude any evidence seized as part of his arrest. The court conducted a hearing and denied the
Motion.
A jury trial was conducted from January 27, 2015 through January 30, 2015. At the
conclusion of its deliberations, the jury found Mote guilty of Counts One, Four, Five, and Six. Id
at *1. The State dismissed Counts Two and Three of the indictment. Id. On February 3, 2015, the
court sentenced Mote to seven years in prison as to Count One, twelve months in prison as to Count
Four, twelve months in prison as to Count Five, and 12 months in prison as to Count Six. The court
ordered Mote to serve the terms consecutively for an aggregate sentence of 10 years. Id.
Mote filed a timely direct appeal of his conviction and asserted one assignment of error: the
trial court erred in overruling his motion to suppress evidence. He argued he was unlawfully
detained because he did not reasonably believe he was free to leave. He claimed any search of the
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vehicle was the product of the unlawful seizure and therefore a violation of his Fourth Amendment
rights. The Ohio Third District Court of Appeals held that the seizure was reasonable and upheld
his conviction. Mote did not appeal that decision to the Supreme Court of Ohio. He did not file a
Petition for Post Conviction Relief.
Mote filed an Application to Reopen his Appeal under Ohio Appellate Rule 26(b) seeking
to add forty assignments of error to his original appeal. The Ohio Third District Court of Appeals
denied the Application, stating that Mote did not show any genuine issue as to whether he was
denied the effective assistance of appellate counsel. He appealed that decision to the Supreme Court
of Ohio, asserting forty-two grounds for relief. The Supreme Court declined jurisdiction on April
20, 2016. See State of Ohio v. Mote, No. 2016-0158 (Ohio S. Ct. Apr. 20, 2016).
Mote has now filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
In his Petition, he asserts forty-two grounds for relief:
1. He was handcuffed and shackled in the presence of potential
jurors;
2. His right to a speedy trial was violated;
3. He was held on excessive bail;
4. He was held on trumped up drug charges for 5 days;
5. Officers tampered with the crime scene;
6. Officers did not test the needle found in his possession;
7. The prosecutor lied about forensic evidence;
8. The prosecutor lied about tool marks matching;
9. The search warrant for his cellphone was haphazard and search
exceeded the parameters of the warrant;
10. His lawyer, the prosecutor and the judge changed his court dates;
11. Hair and Fiber samples found were not submitted for DNA tests;
12. He was charged with engaging in a pattern of corrupt activity for
three breaking and entering offenses that occurred between December
27, 2013 and January 4, 2014 when he had an alibi for one or more
of those days;
13. He was in jail during one of the burglaries for which he was
charged;
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14. The fiber on the wooden box from which money was taken could
not have been from his glove;
15. His co-defendant in his interviews could not give details until
after the discovery packet was given to them;
16. The police testimony painted him in a bad light knowing the jury
members were family or friends;
17. None of the attorneys asked his co-defendant about the plea deal
he had taken;
18. Nobody pointed out to the jury that police only had a partial shoe
cast, that his phone GPS showed it was at a business three days
before, and that it did not snow on the night in question;
19. The jury was not shown the shoe cast;
20. Jen McCoy was ordered to delete certain parts of the security
tapes;
21. His attorney would not let him show the jury his left arm which
is clearly covered in tattoos when suspects in the video do not have
tattoos.
22. The prosecutor did not call Nike or Stanley to get statistics on
what they sell in that area and how popular those brands are;
23. There were no working videos when he was stripped searched in
a parking lot when temperatures were below zero;
24. Police did not check the cell towers to show his location when
the burglaries took place;
25. Police did not question workers about their shoes or what shoes
customers wore because the shoe prints were not near the point of
entry;
26. No one pointed out what footwear he was wearing;
27. No one pointed out that the tile worker was wearing a solid black
coat and he was wearing a camouflage coat with black spots. The
other video shows a person in a red coat. He indicates no red coat
was found in his possession;
28. The jurors were not shown pictures of different shoe prints. They
were only shown prints which were attributed to Mote;
29. He did not receive a suppression hearing on his cell phone
search;
30. No one brought up fibers that were found that resembled his
property;
31. His trial date was changed after an attorney conference so police
could get friends and family on the jury;
32. The jury was not told he was on lock picking and safe cracking
websites for two or three seconds;
33. Evidence was not promptly taken to the Bureau of Criminal
Investigation for testing;
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34. Prosecutor lied about fibers and shoe prints matching, suggesting
they could not have come from someone else;
35. His attorney and the prosecutor did not call independent experts
to examine the fiber and shoe print evidence;
37.1 The jury was not shown stacks of money confiscated so they
could see it could not add up to what the prosecutor said it did;
38. The police testified that it snowed on the night in question when
weather reports indicate it did not snow;
39. The photo of the suspects was not enhanced;
40. the jurors were directly related to the police or were friends with
the officers, or were victims of other crimes;
41. No other show casts were taken;
42. Jurors were not told he had only $ 2.50 in his pockets when
arrested even though more than that amount was missing;
43. His lawyer would not allow him to take the stand in his own
defense.
All of these claims except numbers 31 and 43 were raised in his Rule 26(b) Application.
Petitioner asserted that his trial date was changed but he did not assert it was to allow the police to
get friends and family on the jury as he did in ground 31 of his Petition. It does not appear he raised
the issue of testifying on his own behalf in the state courts, as he asserted in ground 43 of his
Petition.
Discussion
I will deny Mote’s petition because all of his claims are procedurally defaulted and there is
no basis in the record for excusing these defaults.
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.

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Mote skipped Ground 36 and went from Ground 35 to Ground 37 in his Petition.
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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). To be properly exhausted, each claim must have been “fairly
presented” to the state courts. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009). Fair presentation
requires that the state courts be given the opportunity to see both the factual and legal basis for each
claim. Id.
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).
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. 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.

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All of the Petitioner’s grounds for relief are procedurally defaulted. All of his 43 claims
could and should have been raised on direct appeal, but Petitioner did not assert them at that time.
Indeed, he did not even seek discretionary review in the Ohio Supreme Court during his direct
appeal.
Furthermore, petitioner did not exhaust any of his claims while litigating his Application to
Reopen.
Although Ohio Appellate Rule 26(b) allows a direct appeal to be reopened, the Petitioner
must establish that his failure to assert certain claims on direct appeal was due to ineffective
assistance of appellate counsel. Yet the Petitioner did not even claim ineffective assistance of
counsel in his Application to Reopen. What’s more, an Application to Reopen cannot preserve, for
later federal habeas review, those claims that appellate counsel failed to pursue; it preserves only the
ineffective-assistance-of-appellate-counsel claim itself. Consequently, the Petitioner did not exhaust
any of his 40 claims by raising them in the Application to Reopen. Davie v. Mitchell, 547 F.3d 297,
312 (6th Cir. 2008).
The Petition does not suggest, moreover, that “cause” precluded him from raising these
claims in his first appeal of his conviction. He does not offer any explanation for failing to assert
these claims on direct appeal. Nor has the Petitioner made a credible actual-innocence claim. While
Petitioner challenges the jury’s finding of fact and the state’s case against him, legal insufficiency
is not the same thing as actual innocence.
For these reasons, there is no basis on which to excuse the Petitioner’s defaults, and the
Petitioner is therefore not entitled to habeas relief.

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Conclusion
It is, therefore,
ORDERED THAT:
1.

Petitioner’s Application to Proceed In Forma Pauperis (Doc No. 2) be, and the same
hereby is, granted;

2.

The petition for a writ of habeas corpus (Doc. 1) be, and the same hereby is, denied

3.

No certificate of appealability will issue, as reasonable jurists would not debate the
court’s procedural-default ruling; and

4.

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.

So ordered.
/s/ James G. Carr
Sr. U.S. District Judge

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