Davis v. Bradshaw

Filing 10

Report and Recommendation that the petition for writ of habeas corpus be denied 1 . Objections to R&R due by 9/10/2010. Signed by Magistrate Judge Kenneth S. McHargh on 8/27/10. (R,N)

D a v i s v. Bradshaw

D o c . 10

UNITED STATES DISTRICT COURT N O R T H E R N DISTRICT OF OHIO E A S T E R N DIVISION

L A W R E N C E DAVIS, P e t i t io n e r , vs. M A R G A R E T BRADSHAW, W a rd e n ,

R esp ond ent.

) ) ) ) ) ) ) ) ) ) ) ) )

C a s e No. 4:09CV1654

J U D G E CHRISTOPHER BOYKO (M a g is t r a t e Judge McHargh)

R E P O R T AND R E C O M M E N D A T IO N

M c H A R G H , Mag.J. T h e petitioner, Lawrence Davis ("Davis"), has filed a petition for a writ of h a b e a s corpus, arising out of his 2005 convictions for drug trafficking in the M a h o n in g County (Ohio) Court of Common Pleas. In his petition, Davis raises three g r o u n d s for relief: 1 . Petitioner was denied due process and equal protection when the t r ia l court failed to instruct the jury on the culpable mental state of r e c k le s s n e s s in regard to the vicinity of a school specification when the l a w in effect at the time of the crime mandated such an instruction. 2. Petitioner was denied due process when Appellate Court failed to r e c o g n iz e , as plain error, that the evidence was insufficient to support a s c h o o l vicinity specification as defined by the Ohio Supreme Court, and P e t it io n e r was further denied due process when that same court failed

Dockets.Justia.com

t o find ineffective assistance of appellate counsel for failing to raise this issu e . 3. Petitioner's Constitutional rights guaranteed by the Fifth and F o u r t e e n t h Amendments to the United States Constitution were v io l a t e d by the State's failure to disclose evidence concerning its r e a s o n s for the Pre-Indictment delay. (Doc. 1, § 12.)

I. FACTUAL AND PROCEDURAL BACKGROUND T h e Ohio Court of Appeals set forth the following factual and procedural b a ck gro u n d : On March 3, 2005, Appellant was indicted on five counts of drug t r a ffic k in g . Each count was based on a separate purchase of cocaine by a confidential informant and arranged by the Mahoning Valley Drug T a s k Force. The drug buys occurred on June 6, June 25, July 31, and A u g u s t 2, of 2003, and March 25, 2004. These correspond to counts one t h r o u g h five of the indictment. Each count was charged under R.C. 2 9 2 5 .0 3 (A ) (1 ). Counts one and three were fourth degree felonies, as it w a s alleged that more than five grams but less than ten grams of c o c a in e were sold. Counts four and five were third degree felonies, a lle g in g that more than ten grams but less than one hundred grams of c o c a in e were sold. Count two was a second degree felony, alleging that m o r e than ten grams but less than one hundred grams of cocaine were s o ld , and also alleging that the drug sale took place within one t h o u s a n d feet of a school. There was a forfeiture specification attached t o count three. A p p e lla n t was arrested on September 27, 2005. On October 5, 2005, A p p e lla n t filed a motion pursuant to R.C. 2925.51(C) demanding that t h e state produce at trial John Pflugh or any other person who a n a ly z e d and signed any laboratory report containing an analysis of the c o n t r o lle d substances involved in the case. The trial court sustained t h e motion on October 11, 2005.

2

O n October 7, 2005, Appellant filed a motion to dismiss on the grounds t h a t the state failed to bring him to trial in a timely fashion. This m o t io n was overruled on December 5, 2005. A p p e lla n t was released on a $50,000 bond on October 11, 2005. J u r y trial began on December 8, 2005. Immediately prior to trial, A p p e lla n t asked the court to appoint new counsel. Appellant admitted t o the trial judge that his counsel was doing a good job, but he decided it was in his best interests to obtain new counsel. (Tr., pp. 9-10.) He s a id he talked to his mother and friends and they agreed that he should g e t new counsel. (Tr., pp. 11-12.) The judge overruled the motion for n e w counsel. A t trial, the state called a variety of police officers to testify about each c o n t r o lle d drug purchase. Each drug purchase was done through a c o n fid e n tia l informant. For each purchase, the police gave the c o n fid e n tia l informant a sum of money, and the informant arranged a lo c a t io n with Appellant where they were to meet to complete the c o c a in e purchase. The police searched the informant and his vehicle p r io r to each drug purchase, placed a recording wire on him, and o b s e r v e d the drug transaction. The police searched the informant a g a in after the transaction ended. T h e state introduced as evidence five lab reports identifying each c o c a in e sample and its weight. The state called two forensic chemists t o testify about the lab reports. Barbara DiPietro, a scientist at the B u r e a u of Criminal Identification and Investigation lab in Richfield, O h io , examined the sample corresponding to count five of the in d ict m e n t . John Pflugh, a chemist with Tri-State Laboratories in Y o u n g s t o w n , Ohio, signed the reports for the remaining four samples. It was revealed at trial that Mr. Pflugh did not actually test or oversee t h e testing of the samples labeled as State's Exhibits 4 and 7, and w h i ch correspond to counts one and four of the indictment. T h e state rested its case in the early afternoon of December 8, 2005, a n d Appellant moved to dismiss the charges pursuant to Crim.R. 29. The court overruled the motion. Appellant's counsel then stated that h e had no evidence to present and rested his case. The court attempted t o address the jury at 3:10 p.m., but Appellant had left the building and c o u ld not be found. The judge did not want to proceed without A p p e lla n t's presence. The parties eventually agreed on a course of a c t io n . They decided that the judge and a court reporter would go to

3

t h e jury room without counsel, so that the judge could tell the jurors to g o home for the evening. They agreed that the judge would not m e n t io n that Appellant had fled from the trial and could not be found. A warrant was issued for Appellant's arrest. He voluntarily appeared a t court the next morning. He was arrested in the courthouse and it w a s agreed that contempt proceedings were to be postponed until after t h e jury reached its verdict. It was at this point in the proceedings A p p e lla n t requested he be permitted to testify in his defense. Counsel n o t e d that this was against his advice, but agreed that Appellant had a r ig h t to testify if he so desired. The court reopened the evidentiary p o r t io n of the case and allowed Appellant to testify. The jury convicted A p p e lla n t on all five counts that same day. O n December 12, 2005, the court held a contempt hearing and p r o c e e d e d to sentencing. The court found Appellant in direct contempt o f court and imposed 50 days in jail, to be served prior to any prison s e n t e n ce that might be imposed in the case. Moving to the sentencing h e a r in g , the court sentenced Appellant to one year in prison on count o n e , five years on count two, one year on count three, two years on c o u n t four, and two years on count five, to be served consecutively, for a n aggregate prison term of eleven years. The court filed its sentencing e n t r y on December 14, 2005. On December 21, 2005, Appellant filed a m o t i o n for a new trial, which was overruled on December 23, 2005. (Doc. 6, RX 10, at 2-5; State v. Davis, No. 05-MA-235, 2007 WL 4696960, at *1-*3 (O h io Ct. App. Dec. 18, 2007).) A. Direct Appeal D a v is filed a timely appeal of his conviction, and set forth the following seven assignments of error: 1. The trial court erred by over ruling the Defendants Criminal Rule 29 M o t io n s . 2 . Defendant was denied Due Process of Law and his rights under the S ix t h Amendment Confrontation Clause of the Federal Constitution a n d like provisions of the Ohio Constitution when the Court allowed s t a t e s exhibits 4 & 7 to be admitted into evidence and further erred w h e n it allowed the testimony of John Pflugh as to the weight of the s u b s t a n c e identified in said exhibits.

4

3 . Defendant was denied Due Process of Law when the court overruled d e f e n d a n t 's motion to dismiss by reason of pre-indictment delay. 4 . The trial court abused its discretion by finding the Defendant to be in direct criminal contempt and in imposing a penalty of 50 days and b e y o n d the statutory limits of R.C. 2705.05 for a first contempt. 5 . The trial court erred in failing to adequately inquire into the D e f e n d a n t s motion for substitution of counsel. 6. The Court denied the Defendant due process of law by allowing into e v id e n c e the alleged contraband as the chain of custody is irreparably f la w e d . 7. The Court erred when it failed to grant Defendant's motion for a n e w trial and or motion for mistrial. (Doc. 6, RX 8.) On Dec. 18, 2007, the court of appeals reversed his convictions on t w o of the five drug trafficking counts, but otherwise affirmed the judgment of the t r i a l court. (Doc. 6, RX 10, at 33-34; State v. Davis, No. 05-MA-235, 2007 WL 4 6 9 6 9 6 0 , at *17 (Ohio Ct. App. Dec. 18, 2007).) On Jan. 30, 2008, the state filed a timely appeal to the Supreme Court of O h i o . (Doc. 6, RX 11-12.) The state supreme court denied leave to appeal on May 2 1 , and dismissed the case because it did not involve any substantial constitutional q u e s t i o n . (Doc. 6, RX 13; State v. Davis, 118 Ohio St.3d 1408, 886 N.E.2d 872 (2008).) Davis did not appeal to the Supreme Court of Ohio. B. Rule 26(B) Application O n Feb. 8, 2008, Davis filed an application to reopen his appeal, pursuant to Rule 26(B). The application was based on ineffective assistance of appellate counsel o n three grounds:

5

[1 . ] Trial court committed plain error when it failed to instruct jury t h a t culpable mental state of recklessness applied to offense of t r a f fi c k i n g in cocaine in vicinity of a school. [2.] Whether Criminal Rule 29 challenge to Count Two should have b e e n granted given state failed to produce sufficient evidence as to c u l p a b l e mental state of recklessness. [3.] Whether Mr. Davis incurred prejudice from pre-indictment delay a n d was reason therefor justifiable. (Doc. 6, RX 14.) The court of appeals found his application to be without merit, and d e n i e d the application. (Doc. 6, RX 15; State v. Davis, No. 05-MA-235, 2008 WL 2 4 2 5 2 0 3 (Ohio Ct. App. June 12, 2008).) Davis filed an appeal of this denial to the state high court on July 21, 2008. (Doc. 6, RX 16.) Davis set forth two propositions of law: 1 . The court of appeals ignored "plain error" when it failed to consider t h e effective date for H.B. 163 (which only applies to offenses committed on or after September 23, 2004 and not offenses committed p r io r to 9/23/04), finding erroneously that State v. Lozier does not apply to the instant case when it does, thus, the trial court failed to instruct ju r y that culpable mental state of recklessness applied to offense of t r a f fi c k i n g in cocaine in vicinity of a school. 2. The court of appeals ignored "plain error" when failing to find merit o n the issue presented: that evidence was insufficient to sustain a v e r d ic t for trafficking in cocaine in the vicinity of a school, when a p p e lla n t claimed ineffective assistance of appellate counsel for failing t o raise this meritorious issue. (Doc. 6, RX 17.) The state supreme court dismissed the appeal because it did not i n v o l v e any substantial constitutional question. (Doc. 6, RX 18; State v. Davis, 119 O h io St.3d 1476, 894 N.E.2d 334 (2008).) C. Petition for Post-Conviction Relief

6

W h i le his direct appeal was pending, Davis also filed a petition for postc o n v ic t io n relief, pursuant to Ohio Rev. Code § 2953.21, with the trial court on Sept. 1 3 , 2007. The petition was based on three grounds: 1 . Defendant suffers genuine prejudice to his right to a fair trial p u r s u a n t to prosecutorial misconduct in masquerading key w i t n e s s / a c c u s e r as some newfound stellar citizen. 2. Defendant suffers ineffective assistance of counsel pursuant to c o u n s e l's failure to investigate, or otherwise familiarize himself with, e l e m e n t s ascribed to "school-zone" specifications. 3. Defendant suffers prejudice of not having his jury find fact(s) n e ce s s a r y to impose consecutive sentences, especially given p r o s e c u t o r ia l misconduct was relied upon by this Court in sanctioning s u c h cumulative punishment.

(Doc. 6, RX 19.) The court denied his petition for post-conviction relief. (Doc. 6, RX 2 2 . ) Davis appealed. (Doc. 6, RX 23-24.) The court of appeals noted that the post-conviction petition was not timely file d , and that the trial court did not have jurisdiction to entertain the petition. The c o u rt found that the petition was time-barred, and affirmed the dismissal of the p e t i t i o n on those grounds. (Doc. 6, RX 26; State v. Davis, No. 08-MA-16, 2008 WL 5 0 5 9 0 7 2 (Ohio Ct. App. Nov. 26, 2008).) On Jan. 5, 2008, Davis appealed that judgment to the Supreme Court of Ohio. (Doc. 6, RX 27-28.) The state supreme court declined jurisdiction, and dismissed the a p p e a l because it did not involve any substantial constitutional question. (Doc. 6, R X 29; State v. Davis, 121 Ohio St.3d 1450, 904 N.E.2d 900 (2009).) Davis filed this petition for a writ of habeas corpus on July 17, 2009. (Doc. 1.)

7

I I . HABEAS CORPUS REVIEW T h is case is governed by the Antiterrorism and Effective Death Penalty Act of 1 9 9 6 (AEDPA), 28 U.S.C. § 2254, which provides the standard of review that federal c o u rt s must apply when considering applications for a writ of habeas corpus. Under t h e AEDPA, federal courts have limited power to issue a writ of habeas corpus with r e s p e c t to any claim which was adjudicated on the merits by a state court. The S u p r e m e Court, in Williams v. Taylor, provided the following guidance: U n d e r § 2254(d)(1), the writ may issue only if one of the following two c o n d it io n s is satisfied -- the state-court adjudication resulted in a d e c is io n that (1) "was contrary to ... clearly established Federal law, as d e t e r m in e d by the Supreme Court of the United States," or (2) " in v o lv e d an unreasonable application of ... clearly established Federal la w , as determined by the Supreme Court of the United States." Under t h e "contrary to" clause, a federal habeas court may grant the writ if t h e state court arrives at a conclusion opposite to that reached by this C o u r t on a question of law or if the state court decides a case differently t h a n this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court m a y grant the writ if the state court identifies the correct governing le g a l principle from this Court's decisions but unreasonably applies t h a t principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2002). See also Lorraine v. Coyle, 291 F.3d 4 1 6 , 421-422 (6th Cir. 2002), cert. denied, 538 U.S. 947 (2003). A state court decision is "contrary to" clearly established Supreme Court p r e c e d e n t "if the state court applies a rule that contradicts the governing law set fo r t h in [Supreme Court] cases." Williams, 529 U.S. at 405. See also Price v. V in c e n t , 538 U.S. 634, 640 (2003).

8

A state court decision is not unreasonable simply because the federal court c o n s id e r s the state decision to be erroneous or incorrect. Rather, the federal court m u s t determine that the state court decision is an objectively unreasonable a p p l ic a t i o n of federal law. Williams, 529 U.S. at 410-12; Lorraine, 291 F.3d at 422. Davis has filed his petition pro se. The pleadings of a petition drafted by a p r o se litigant are held to less stringent standards than formal pleadings drafted by l a w y e r s , and will be liberally construed. Urbina v. Thoms, 270 F.3d 292, 295 (6th C ir . 2001) (citing Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1 9 7 2 ) (per curiam)). Other than that, no special treatment is afforded litigants who d e c i d e to proceed pro se. McNeil v. United States, 508 U.S. 106, 113 (1993) (strict a d h e r e n c e to procedural requirements); Jourdan v. Jabe, 951 F.2d 108 (6th Cir. 1 9 9 1 ); Brock v. Hendershott, 840 F.2d 339, 343 (6th Cir. 1988).

III. EXHAUSTION AND PROCEDURAL DEFAULT T h e respondent argues that several of the grounds of the petition have been p r o c e d u r a l ly defaulted, because Davis did not fairly present them to the state courts. (Doc. 6, at 10.) A habeas petitioner cannot obtain relief unless he has completely exhausted h i s available state remedies. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Buell v . Mitchell, 274 F.3d 337, 349 (6th Cir. 2001) (citing Coleman v. Mitchell, 244 F.3d 5 3 3 , 538 (6th Cir.), cert. denied, 534 U.S. 977 (2001)). To satisfy the exhaustion r e q u i re m e n t , a habeas petitioner "must give the state courts one full opportunity to

9

r e s o lv e any constitutional issues by invoking one complete round of the State's e s t a b lis h e d appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1 9 9 9 ). The exhaustion requirement is satisfied when the highest court in the state h a s been given a full and fair opportunity to rule on the petitioner's claims. Rust v. Z e n t , 17 F.3d 155, 160 (6th Cir. 1994) (citing Manning v. Alexander, 912 F.2d 878, 8 8 1 (6th Cir. 1990)). A petitioner cannot circumvent the exhaustion requirement by f a i li n g to comply with state procedural rules. Coleman, 501 U.S. at 731-732; Buell, 2 7 4 F.3d at 349. Where a state court has failed to address a prisoner's federal claim(s) because t h e prisoner failed to meet a state procedural requirement, the state judgment rests o n independent and adequate state procedural grounds, barring federal habeas r e l ie f . Coleman, 501 U.S. at 729-730; Wainwright v. Sykes, 433 U.S. 72 (1977); M o r a le s v. Coyle, 98 F.Supp.2d 849, 860 (N.D. Ohio 2000), aff'd, 507 F.3d 916 (6th C ir . 2007). Thus, where a state prisoner has procedurally defaulted his federal c la im s in state court, habeas review of those claims is barred "unless the prisoner c a n demonstrate cause for the default and actual prejudice as a result of the alleged v io la t io n of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Buell, 274 F.3d at 348 (quoting Coleman, 5 0 1 U.S. at 750); Davie v. Mitchell, 324 F.Supp.2d 862, 870 (N.D. Ohio 2004), aff'd, 5 4 7 F.3d 297 (6th Cir. 2008), cert. denied, 130 S.Ct. 503 (2009). The court considers four factors to determine whether a claim has been p r o c e d u r a lly defaulted: (1) the court must determine whether there is a state

10

p r o c e d u ra l rule that is applicable to the petitioner's claim, and whether the p e t i t io n e r failed to comply with the rule; (2) the court must decide whether the state c o u rt s actually enforced the procedural sanction; (3) the court must decide whether t h e state procedural forfeiture is an adequate and independent state ground on w h ic h the state can rely to foreclose review of the federal claim; and, (4) the p e t it io n e r must demonstrate that there was cause for him not to follow the p r o c e d u ra l rule, and that he was actually prejudiced by the alleged constitutional e r r o r . Buell, 274 F.3d at 348 (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1 9 8 6 ) ); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001) (quoting Maupin). A. Jury Instructions T h e first ground of the petition alleges a denial of Davis' constitutional rights b e c a u s e the trial court did not properly instruct the jury "on the culpable mental s t a t e of recklessness in regard to the vicinity of a school specification." Davis claims, i n other words, that the trial court erred in its jury instructions. As noted by respondent, Davis did not raise this claim on direct appeal. (Doc. 6 , at 12-13.) See generally doc. 6, RX 8. Thus, his federal claim was not exhausted, a n d cannot be reviewed by this habeas court. O'Sullivan, 526 U.S. at 845; Rust, 17 F . 3 d at 160. Because the claim was not raised on direct appeal, it is barred by the Ohio r u l e of res judicata. Lott v. Coyle, 261 F.3d 594, 611-612 (6th Cir. 2001), cert. d e n ie d , 534 U.S. 1147 (2002); Rust, 17 F.3d at 160-161; State v. Szefcyk, 77 Ohio S t .3 d 93, 671 N.E.2d 233 (1996) (syllabus); State v. Perry, 10 Ohio St.2d 175, 176,

11

2 2 6 N.E.2d 104, 105-106 (1967) (syllabus, ¶9). Res judicata would bar Davis from l it i g a t i n g an issue that could have been raised on direct appeal. Perry, 10 Ohio S t .2 d at 180, 226 N.E.2d at 108. The Ohio rule of res judicata satisfies the first three factors in Maupin. Jacobs, 265 F.3d at 417. The fourth factor is that the petitioner must demonstrate t h a t there was cause for him not to follow the procedural rule, and that he was a c t u a lly prejudiced by the alleged constitutional error. "Cause" for a procedural d e f a u lt is ordinarily shown by "some objective factor external to the defense" which i m p e d e d the petitioner's efforts to comply with the state's procedural rule. Coleman, 501 U.S. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Davis concedes that "not one of his Grounds for Relief set forth in his a p p lic a t io n concern any of the issues raised in his direct appeal. The issues set forth in the Petition are issues raised in his [Rule 26(B)] Application to Reopen his A p p e a l." (Doc. 8, at 11.) However, although Davis may have attempted to raise this is s u e in his Rule 26(B) motion for reopening, that procedure is limited to claims of in e ffe c t i v e assistance of appellate counsel. Ohio R. App. P. 26(B)(1). The state c o u r t s will not entertain other claims. See State v. Goines, 74 Ohio St.3d 409, 410, 6 5 9 N.E.2d 787 (1996) (per curiam) (claimed errors not related to ineffective a s s i s t a n c e of appellate counsel are disregarded); State v. Cook, No. WD-04-029, 2005 W L 1926517, at *4 (Ohio Ct. App. Aug. 10, 2005) (claim of ineffective assistance of t r i a l counsel improper basis for Rule 26(B) motion); State v. Huber, No. 80616, 2003 W L 21419177, at *2 (Ohio Ct. App. June 18, 2003) (same).

12

T h e Sixth Circuit has held that "the doctrine of exhaustion requires that a c la im be presented to the state courts under the same theory in which it is later p r e s e n t e d in federal court." Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998); see a ls o Jalowiec v. Bradshaw, No. 1:03CV0645, 2008 WL 312655, at *24 (N.D. Ohio J a n . 31, 2008). Davis now raises the issue as a matter of the trial court's error in i m p r o p e r l y instructing the jury, not as an ineffective assistance claim. See, e.g., Sneed v. Johnson, No. 1:04CV 588, 2007 WL 709778, at *33 (N.D. Ohio Mar. 2, 2 0 0 7 ), aff'd, 600 F.3d 607 (6th Cir. 2007), petition for cert. filed, August 4, 2010 (No. 1 0 - 5 8 0 9 ) (claims were never raised as distinct grounds for relief but as ineffective a s s ist a n c e claims in application to reopen). The first ground was not properly e x h a u s t e d in the state courts, and cannot serve as the basis for habeas relief. Moreover, even if the claim had been properly presented, the state court noted t h a t the claim would fail on the merits. (Doc. 6, at 14.) The court of appeals found t h a t Davis could not challenge the jury instructions on appeal, because he had not l o d g e d a timely objection at trial, and he did not show plain error. (Doc. 6, RX 15, at 3 ; Davis, 2008 WL 2425203, at *2.) Ohio's contemporaneous objection rule is an a d e q u a t e and independent state ground on which the state can rely to foreclose h a b e a s review. Gulertekin v. Tinnelman-Cooper, 340 F.3d 415, 424 (6th Cir. 2003); L o z a v. Mitchell, No. C-1-98-287, 2002 WL 1580520, at *28-*30 (S.D. Ohio June 11, 2 0 0 2 ) (citing Scott v. Mitchell, 209 F.3d 854, 867-871 (6th Cir.), cert. denied, 531 U . S . 1021 (2000)). See generally Wainwright, 433 U.S. at 86-88 (contemporaneous o b je c t i o n rule adequate and independent state ground).

13

T h e first ground cannot serve as the basis for habeas relief. B. Due Process T h e second ground of the petition alleges a due process violation in two parts: 1) first, that the state court of appeals failed to find, as "plain error," that the e v id e n ce was insufficient to support the "school vicinity" specification, and 2) that t h e court of appeals failed to find ineffective assistance of appellate counsel for fa ilin g to raise this same issue. Davis claims, in other words, that the state court of a p p e a ls improperly ruled on his sufficiency of the evidence claim, and that the court i m p r o p e r l y ruled on his related ineffectiveness claim. Again, as conceded by Davis, the first sub-claim was not raised on direct a p p e a l.1 See generally doc. 6, R X 8. Thus, this federal claim was not exhausted, and c a n n o t be reviewed by this habeas court. O'Sullivan, 526 U.S. at 845; Rust, 17 F.3d a t 160. Because the claim was not raised on direct appeal, it is barred by the Ohio r u l e of res judicata. Lott, 261 F.3d at 611-612; Rust, 17 F.3d at 160-161. Under the s a m e rationale as the first ground, outlined above, the insufficiency sub-claim was n o t properly exhausted in the state courts, and cannot serve as the basis for habeas r e l ie f . Davis did raise an argument of ineffective assistance of appellate counsel for f a i li n g to raise the "school vicinity" specification issue in his Rule 26(B) application. However, he simply argued that the state "produced absolutely no evidence to

Although Davis raised sufficiency of the evidence arguments on direct a p p e a l , the issues argued were entirely different. See doc. 6, RX 8, at 2-5.

1

14

s a t i s f y [the] element of recklessness." (Doc. 6, RX 14, at [3].) The state court set fo r t h the proper standard under Strickland v. Washington, 466 U.S. 668 (1984), and r u l e d on his argument as follows: Appellant also assumes that there was insufficient evidence that he w a s "reckless" in trafficking cocaine in the vicinity of a school. He c o n t e n d s that he could not have been "reckless" in his criminal activity u n le s s the school was actually in session, but he presents no legal s u p p o rt for this conclusion. The definition of "vicinity of a school" does n o t refer to whether children are in the school when the crime occurs, o r whether the school is in session when the crime occurs. ***** Appellant is aware that his arguments, of whatever nature, are based o n evidence de hors the record. Appellate counsel could not rely on s u c h evidence during direct appeal. State v. Ishmail (1976), 54 Ohio S t .2 d 402, 8 O.O.3d 405, 377 N.E.2d 500. Thus, appellate counsel c o m m it t e d no error in failing to raise errors on appeal that required e v id e n ce de hors the record, and counsel could not be deemed in e ffe c t i v e under Strickland and the other aforementioned cases. (Doc. 6, RX 15, at 3-4; Davis, 2008 WL 2425203, at *2.) Ineffective assistance of counsel is not considered a due process violation, but r a t h e r a violation of the Sixth Amendment. Under the Sixth Amendment to the U.S. C o n s t it u t io n , "the right to counsel is the right to effective assistance of counsel." Joshua v. DeWitt, 341 F.3d 430, 437 (6th Cir. 2003) (quoting McMann v. Richardson, 3 9 7 U.S. 759, 771 n.14 (1970)). The Sixth Circuit discussed the general standard for ineffective assistance of c o u n s e l in Monzo v. Edwards: To establish ineffective assistance of counsel under Strickland, the d e fe n d a n t must show that his counsel's performance fell below an o b je c t i v e standard of reasonableness and that his counsel's errors were

15

s o serious as to prejudice the defendant. Review of counsel's p e r fo r m a n ce is highly deferential and requires that courts "indulge a s t r o n g presumption that counsel's conduct falls within a wide range of r e a s o n a b le professional assistance." To establish prejudice, the d e fe n d a n t "must show that there is a reasonable probability that, but fo r counsel's unprofessional errors, the result of the proceeding would h a v e been different. A reasonable probability is a probability sufficient t o undermine confidence in the outcome." Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002) (internal citations omitted). See generally Strickland, 466 U.S. at 689 (two-part test). A criminal appellant is c o n s t it u t io n a lly entitled to the effective assistance of counsel in his direct appeal, as w e l l as at trial. Evitts v. Lucey, 469 U.S. 387 (1985). In the habeas context, this court considers petitioner's ineffective assistance c la im "within the more limited assessment of whether the state court's application of S t r ic k la n d to the facts of this case was objectively unreasonable." Washington v. H o fb a u e r , 228 F.3d 689, 702 (6th Cir. 2000). Appellate counsel cannot be ineffective f o r a failure to raise an issue that lacks merit. Willis v. Smith, 351 F.3d 741, 745 (6 t h Cir. 2003). Davis has failed to establish that the state court's application of S t r ic k la n d was objectively unreasonable. The petition should not be granted on the basis of the second ground. C . Pre-Indictment Delay T h e third ground of the petition is that Davis' constitutional rights were v io la t e d "by the State's failure to disclose evidence concerning its reasons for the P r e -I n d ic t m e n t delay." Davis claims, in other words, that the prosecution i m p r o p e r l y failed to disclose the reasons behind an alleged pre-indictment delay.

16

D a v is raised the general issue of pre-indictment delay in his direct appeal, but t h e court of appeals overruled his arguments, primarily on the basis of lack of prejudice. The court found, for example, that he was not incarcerated while the case w a s being built against him, nor was he subject to lengthy criminal proceedings p r i o r to being fully informed of the charges against him. (Doc. 6, RX 10, at 12-13; D a v is , 2007 WL 4696960, at *7.) In his Rule 26(B) application, he contended that he suffered "insurmountable" p r e ju d i c e due to the delay. (Doc. 6, RX 14, at [4]-[5].) The court of appeals rejected h i s arguments, finding that Davis added nothing to convince the court that its e x t e n s i v e review of his arguments on direct appeal was erroneous. (Doc. 6, RX 15, at 4 ; Davis, 2008 WL 2425203, at *2.) T h e current theory raised by Davis is that "the prosecution delayed in d ic t m e n t and therefore the trial, in order to make their confidential informant m o r e presentable, ergo, believable." (Doc. 8, at 21.) This theory was not raised on d ir e c t appeal. Although Davis states that his post-conviction petition "was p r e d ic a t e d upon the fact that the Prosecution purposely withheld their reason for p r e - in d i c t m e n t delay," there is no indication of this argument in his petition. See g e n e r a lly doc. 6, RX 19. Rather, Davis argued that there was prosecutorial m i s c o n d u c t in that the state withheld from the court the "true character" of a w i t n e s s against him. See RX 19, at 3-4. The claim was not therefore presented to t h e state courts under the same theory in which it is now presented to this court, a n d thus was not exhausted. Wong, 142 F.3d at 322.

17

I n addition, a petition for post-conviction relief, pursuant to Ohio Rev. Code § 2 9 5 3 .2 1 , is a civil proceeding. Normand v. McAninch, 210 F.3d 372, 2000 WL 3 7 7 3 4 8 , at *5 (6th Cir. 2000) (TABLE, text in WESTLAW) (citing State v. Nichols, 1 1 Ohio St.3d 40, 463 N.E.2d 375 (1984)); State v. Steffen, 70 Ohio St.3d 399, 410, 6 3 9 N.E.2d 67, 76 (1994); State v. Apanovitch, 107 Ohio App.3d 82, 87, 667 N.E.2d 1 0 4 1 , 1044 (Ohio Ct. App. 1995) (post-conviction proceeding is collateral civil attack o n judgment). Even if Davis could demonstrate that some error occurred during his s t a t e post-conviction proceeding, such a claim is not cognizable on federal habeas r e v i e w . Cress v. Palmer, 484 F.3d 844, 853 (6th Cir. 2007); Roe v. Baker, 316 F.3d 5 5 7 , 571 (6th Cir. 2002), cert. denied, 540 U.S. 853 (2003) (citing Kirby v. Dutton, 7 9 4 F.2d 245, 247 (6th Cir. 1986)); Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2 0 0 1 ) , cert. denied, 535 U.S. 940 (2002); Montgomery v. Meloy, 90 F.3d 1200, 1206 ( 7 t h Cir.), cert. denied, 519 U.S. 907 (1996) (citing cases). The petition should not be granted on the basis of the third ground.

IV. SUMMARY T h e petition for a writ of habeas corpus should be denied because the first and t h ir d grounds of the petition were not properly exhausted in the state courts. The s e c o n d ground was exhausted, in part, but the petition should not be granted on that g ro u n d because Davis failed to establish that the state court's application of S t r ic k la n d was objectively unreasonable.

18

R E C O M M E N D A T IO N I t is recommended that the petition for a writ of habeas corpus be DENIED.

Dated:

Aug. 27, 2010

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

A N Y OBJECTIONS to this Report and Recommendation must be filed with t h e Clerk of Courts within fourteen (14) days of receipt of this notice. Failure to file o b je c t io n s within the specified time WAIVES the right to appeal the District Court's o r d e r . See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 9 4 7 (6th Cir. 1981).

19