Luecke v. Lazaroff

Filing 24

Opinion and Order signed by Judge James S. Gwin on 7/20/15. The Court overrules petitioner's objections, adopts the Report and Recommendation of the Magistrate Judge and dismisses the 28 USC Section 2254 petition with prejudice. (Related Docs. 1 , 19 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
------------------------------------------------------:
BRIAN LUECKE,
:
:
Petitioner,
:
:
v.
:
:
ALAN LAZAROFF, WARDEN,
:
Mansfield Correctional Institution
:
:
Respondent.
:
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CASE NO. 5:14-CV-00241

OPINION & ORDER
[Resolving Docs. 1, 19]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Petitioner Brian Luecke seeks a writ of habeas corpus under 28 U.S.C. § 2254.1/ Upon
referral, Magistrate Judge Vecchiarelli issued a Report and Recommendation (“R&R”)
recommending that the petition be dismissed with prejudice.2/ Luecke has filed timely objections to
the R&R.3/ For the following reasons the Court OVERRULES Luecke’s objections, ADOPTS the
R&R, and DISMISSES the petition with prejudice.
I. Background
On February 18, 2011, Petitioner Luecke pled guilty in Portage County Common Pleas Court
to one count of felonious assault arising out of a June 2009 hit-and-run.4/ On August 10, 2011,
Luecke pled guilty to three counts of rape and two counts of importuning in a separate case in the
same court.5/

1/

Doc. 1. Respondent Alan Lazaroff has filed a motion to dismiss. Doc. 11.

2/

Doc. 19.

3/

Doc. 22.
Doc. 11-1; Doc. 11-2.

4/
5/

Doc 11-7.
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Case No. 5:14-CV-00241
Gwin, J.
On September 6, 2011, the trial court held a sentencing hearing with regard to both pleas.
Luecke was sentenced to seven years for the felonious assault.5/ Luecke was then sentenced to life
with parole available in ten years for the rape counts and three years for the importuning counts, with
the sentences to run consecutively. The court ordered that the sentences for rape and importuning
would run consecutive to the sentence for felonious assault.6/
Luecke’s § 2254 petition asserts four claims. First, the trial court violated Luecke’s right to
due process when it imposed consecutive sentences without justification. Second, the trial court
violated Luecke’s Eighth Amendment and Due Process rights when it imposed consecutive sentences
without reviewing their proportionality. Third, Luecke’s trial counsel was ineffective because he
failed to investigate Luecke’s psychiatric health; failed to explain the consequences of a plea to
Luecke; and “scared” Luecke into pleading guilty. Fourth, Luecke’s appellate counsel was ineffective
because he failed to argue that trial counsel was ineffective.5/
II. Legal Standards
Under the Federal Magistrates Act, a district court shall conduct a de novo review of those
potions of an R&R to which the parties have made an objection.6/ “However, the district court need
not provide de novo review where the objections are ‘[f]rivolous, conclusive or general.’ The parties
have ‘the duty to pinpoint those portions of the magistrate’s report that the district court must
specially consider.’”7/

5/

Doc. 11-4.

6/

Doc. 11-8.

5/

Doc. 1.

6/

28 U.S.C. § 636(b)(1).

7/

Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (citing Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th
Cir. 1982)).
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Case No. 5:14-CV-00241
Gwin, J.
A state prisoner must exhaust all available state remedies or have no remaining state
remedies available prior to seeking review of a conviction via federal habeas corpus.8/ Where there
are no longer any state court remedies still available to a petitioner with respect to unexhausted
claims, the Court may deem those claims procedurally defaulted.9/ Further, a federal court may not
review “contentions of federal law . . . not resolved on the merits in the state proceeding due to
respondent’s failure to raise them there as required by state procedure.”10/
III. Analysis
Magistrate Judge Vecchiarelli recommended that Luecke’s first, third, and fourth grounds
be dismissed as procedurally defaulted, and that Luecke’s second ground be dismissed on the merits.
A. Consecutive Sentences Imposed Without Justification
The R&R recommends that Luecke’s first ground for relief be dismissed because it was never
fairly presented to the state courts as a claim under federal law. The R&R finds “that the appellate
court considered Petitioner’s claim as one arising under Ohio sentencing law. In sum, Petitioner
failed to apprise the state courts that Luecke believed this claim involved federal law, and the state
appellate court treated the claim as one arising solely under Ohio law.”11/
In his objections, Luecke argues that the state courts should have known he was making a
claim under both Ohio law and federal law. Luecke says that he cited Supreme Court cases in his
state court briefing. Luecke described his sentence as “contrary to law” and an “abuse of discretion,”
and says that the use of these phrases “could certainly, and most likely actually did, inform the state

8/

28 U.S.C. § 2254(b) and (c); Castille v. Peoples, 489 U.S. 346, 349 (1989).

9/

Gray v. Netherland, 518 U.S. 152, 161-62 (1996).

10/

Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

11/

Doc. 19 at 13.
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Case No. 5:14-CV-00241
Gwin, J.
appellate court that Petitioner was alleging both federal and state due process violations.”12/
A federal claim is fairly presented in state court when: (1) the petitioner phrased the federal
claim in terms of the pertinent constitutional law or in terms sufficiently particular to allege a denial
of the specific constitutional right in question; (2) the petitioner relied upon federal cases employing
the constitutional analysis in question; (3) the petitioner relied upon state cases employing the federal
constitutional analysis in question; or (4) the petitioner alleged “facts well within the mainstream of
constitutional law.”13/
While Luecke cited Supreme Court cases such as Apprendi v. New Jersey and Blakely v.
Washington in his state briefing, generalized citations alone do not serve to present his specific
argument in federal constitutional terms. Similarly, mere invocation of the phrases ‘abuse of
discretion’ or ‘contrary to law’ do nothing to notify the state court that Luecke intended to make a
federal constitutional claim. Luecke’s objections do not show that he fairly presented his first ground
to the state courts. Thus, his objections as to this claim are OVERRULED.
B. Lack of Proportionality Review in Imposing Consecutive Sentences
The R&R concludes that Luecke did fairly present his second claim to the state courts, but
that the claim loses on the merits. The R&R concludes that the state trial court considered the
proportionality of Luecke’s aggregate sentence, and that he cannot show that “his sentence in this
case was contrary to, or involved an unreasonable application of, clearly established federal law.”14/
Luecke does not make a specific objection to this conclusion. Instead, he merely reiterates
his contention that this ground is not defaulted and is properly before the Court. Because Luecke
12/

Doc. 1 at 2.

13/

Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).

14/

Doc. 19 at 22.
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Case No. 5:14-CV-00241
Gwin, J.
does not object to the substance of Magistrate Judge Vecchiarelli’s analysis, his objection is
OVERRULED.
C. Ineffective Assistance of Trial and Appellate Counsel
In his objections, Luecke does not respond to Magistrate Judge Vecchiarelli’s analysis as to
why his third and fourth claims are procedurally defaulted. Instead, Luecke’s brief criticizes the
state’s briefing in the case, and asks for an abeyance or dismissal without prejudice “to allow him
time to correct this defect.”15/ This objection misses the mark, as the R&R concludes that “Petitioner
cannot return to state court to exhaust” either of these claims.16/ A stay or abeyance is therefore futile,
and Luecke does not actually respond to this finding. Because Luecke’s objections as to dismissing
grounds three and four are frivolous and non-specific, the Court OVERRULES them.
IV. Conclusion
For the foregoing reasons the Court OVERRULES the Petitioner’s objections, ADOPTS
Magistrate Judge Vecchiarelli’s R&R and DISMISSES the petition with prejudice. Further, the
certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in
good faith, and no basis exists upon which to issue a certification of appealability.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: July 20, 2015

15/

Doc. 1 at 3.

16/

Doc. 19 at 18.
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