West v. Sloan

Filing 12

Memorandum Opinion and Order signed by Judge James S. Gwin on 6/8/2017. The Court OVERULES Petitioner's objections to the Report and Recommendation. Adopts the Magistrate Judge's 8 Report and Recommendation and incorporates it fully herein by reference. The Court denies petitioner's 28 U.S.C. § 2254 habeas petition. Moreover, the Court certifies that no basis exists upon which to issue a certificate of appealability. (O,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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FREDERICK C. WEST,
Petitioner,
vs.
BRIGHAM SLOAN, Warden,
Respondent.

CASE NO. 5:16-CV-965

OPINION AND ORDER
[Resolving Doc. 1]

-----------------------------------------------------JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Frederick C. West petitions for habeas corpus relief under 28 U.S.C. § 2254.1 He alleges
three grounds for relief.2 After considering West’s arguments, Magistrate Judge Kathleen B.
Burke filed a Report and Recommendation (“R&R”).3 She recommends that the Court dismiss in
part and deny in part West’s petition.4 Petitioner objects to the R&R.5
For the following reasons, the Court OVERRULES Petitioner’s objections to the R&R,
ADOPTS the R&R, and DENIES Petitioner’s § 2254 petition.
I. Background
In December 2013, a Summit County Grand Jury indicted West for one count of
aggravated robbery, one count of obstructing official business, and one count of illegal use or
possession of drug paraphernalia.6 Ohio later added two repeat violent offender specifications
were later added to the indictment.7
In April 2014, West moved to dismiss the case. He argued that the State of Ohio violated

1

Doc. 1. Respondent filed a return of writ. Doc. 6. Petitioner filed a traverse. Doc. 7.
Doc. 1-2.
3
Doc. 8.
4
Id.
5
Doc. 11. The Court previously granted Petitioner’s motion for an extension to file objections. Doc. 9.
6
Doc. 6-2 at 1-2.
7
Id. at 4-5.
2

Case No. 16-CV-965
Gwin, J.
his right to a speedy trial.8 The trial court denied the motion.9
On June 10, 2014, the jury found West guilty of aggravated robbery and illegal use or
possession of drug paraphernalia.10 On August 5, 2014, the trial court found West guilty of the
repeat violent offender specifications.11 The Ohio trial court sentenced West to 12 years’
incarceration.12
Petitioner West raised five arguments on direct appeal:
1. West was denied his rights to a speedy trial pursuant to the 6th
and 14th Amendments to the U.S. Constitution; Article I, Section
10 of the Ohio Constitution; and the Ohio Revised Code.
2. West’s aggravated robbery conviction was not supported by
sufficient evidence, which violated his rights to due process under
the 14th Amendment to the U.S. Constitution and Article I, Section
16 of the Ohio Constitution, and therefore his conviction on that
count and the attached repeat violent offender specification must
be vacated.
3. West’s aggravated robbery conviction was against the manifest
weight of the evidence, and must be reversed.
4. Introducing evidence of a suggestive and unreliable “show up”
identification violated West’s due process rights under the 14th
Amendment, meriting reversal of his convictions.
5. During West’s sentencing hearing, the trial court did not
enunciate any sentence for West’s misdemeanor drug
paraphernalia charge, mandating reversal and a new hearing.13
On July 22, 2015, the Ninth District Court of Appeals affirmed in part and reversed in
part the trial court’s judgment.14 The appellate court agreed with West’s fifth argument, finding
that the trial court erred by sentencing West to serve thirty days’ imprisonment on the drug

8

Id. at 6.
Id. at 7.
10
Id. at 9-10.
11
Id. at 11.
12
Id.
13
Id. at 16-17.
14
Id. at 119-139.
9

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Case No. 16-CV-965
Gwin, J.
paraphernalia count without addressing that charge in open court.15 The appellate court
remanded the case to the trial court for resentencing on the drug paraphernalia count.16
On remand, the prosecutor recommended dismissing the drug paraphernalia count.17
On August 24, 2015, West filed a pro se notice of appeal in the Ohio Supreme Court.18
West re-asserted the four arguments denied by the Ninth District Court of Appeals.19
On October 28, 2015, the Ohio Supreme Court declined jurisdiction.20
On April 22, 2016, West filed his pro se federal habeas petition.21 West argues (1) his
right to speedy trial under the Sixth Amendment and Ohio state law was violated; (2) his
aggravated robbery conviction was not supported by sufficient evidence; and (3) a suggestive
and unreliable “show up” identification violated his due process rights. 22
On April 19, 2017, Magistrate Judge Kathleen B. Burke filed an R&R.23 She
recommends that the Court (1) dismiss in part and deny in part West’s speedy trial argument; (2)
deny West’s insufficiency of evidence argument; and (3) dismiss West’s due process argument.24
West objects to all three recommendations in the R&R.
II. Legal Standard
The Federal Magistrates Act requires a district court to conduct a de novo review only of
those portions of the R&R to which the parties have properly objected.25

15

Id. at 137-38.
Id.
17
Id. at 182.
18
Id. at 140-41.
19
Id. at 143.
20
Id. at 190.
21
Doc. 1.
22
Doc. 1-2 at 3, 6, 9.
23
Doc. 8.
24
Id.
25
28 U.S.C. § 636(b)(1).
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Gwin, J.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 26 controls
habeas review of state court proceedings. AEDPA generally requires that a petitioner exhaust all
of his available state court remedies before seeking habeas relief.27 To satisfy the exhaustion
requirement, the state courts must have “one full opportunity to resolve any constitutional
issues.”28 A district court will not consider a habeas petitioner’s “contentions of federal law . . .
not resolved on the merits in the state proceeding due to [a petitioner’s] failure to raise them
there as required by state procedure.”29
III. Discussion
Ground One
Petitioner West first argues that his speedy trial right was violated. The Court agrees with
the R&R that to the extent Petitioner raises a speedy trial argument under the Ohio Constitution
and the Ohio Revised Code, the claim is not cognizable here.30
Petitioner argues that the violation of his rights under Ohio law creates a federal due
process violation.31 This Court disagrees.
Habeas relief may be available if an alleged error of state law subjected the petitioner to a
“fundamentally unfair” criminal process.32 Only when a state ruling “offend[s] some principle of
justice so rooted in the traditions and conscience of our people” does it constitute fundamental
unfairness.33

26

28 U.S.C. § 2254.
28 U.S.C. § 2254(b)(1)(A).
28
O’Sullivan v. Boerckel, 526 U.S. 838, 838 (1999).
29
Wainwright v. Sykes, 433 U.S. 72, 87 (1977); see also Lundgren v. Mitchell, 440 F.3d 754, 763–64 (6th Cir.
2006).
30
Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“It is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.”).
31
Doc. 11 at 3.
32
Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006).
33
Bey v. Bagley, 500 F.3d 514, 521 (6th Cir. 2007) (quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1977)).
27

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Case No. 16-CV-965
Gwin, J.
The state appellate court provided thorough analysis in denying Petitioner’s claim under
Ohio law.34 This Court finds neither the state appellate court’s process nor its decision to be
“fundamentally unfair.” Petitioner’s due process rights were not violated.
Petitioner also argues that his federal speedy trial right was violated. This claim also fails.
Petitioner argues that federal law requires a trial within 90 days of his arrest. Federal law
has no such requirement. Rather, courts weigh four factors in determining whether the speedy
trial right has been violated.35
“[T]he Supreme Court articulated four factors that must be considered in determining
whether the right to a speedy trial has been violated: (1) whether the delay was uncommonly
long; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial;
and (4) whether prejudice resulted to the defendant.”36
A threshold inquiry is whether the delay between arrest and trial is “uncommonly long.”37
Petitioner was incarcerated for 180 days before his trial. This delay is not uncommonly long. In
fact, the Sixth Circuit has held similar periods of pre-trial incarceration to be reasonable.38
Furthermore, Petitioner caused much of the delay because he requested continuances.39 Time
lapsed due to requested continuances is not relevant to Petitioner’s speedy trial claim.40

34

Doc. 6-2 at 121-26.
Maples v. Stegall, 427 F.3d 1020, 1025 (6th Cir. 2005) (citing Barker v. Wingo, 407 U.S. 514, 533 (1972).
36
Id.
37
Id.
38
See, e.g., United States v. Howard, 218 F.3d 556, 564 (6th Cir. 2000) (“A delay of five months is not per se
excessive under the Sixth Amendment.”); United States v. White, 985 F.2d 271, 275 (6th Cir. 1993) (finding that a
six-and-one-half-month delay was not excessive); United States v. Holyfield, 802 F.2d 846 (6th Cir. 1986) (holding
that a five-month delay was constitutionally permissible).
39
Doc. 6-2 at 124-26. For example, Petitioner’s trial counsel requested a continuance on February 13, 2014 for a
later pretrial on March 27, 2014. Id. at 124. This approximately 40 day delay, among others, does not count toward
Petitioner’s speedy trial clock.
40
Howard, 218 F.2d at 564 (“[O]nly those periods of delay attributable to the government or the court are relevant
to [Petitioner’s] constitutional claim”).
35

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Case No. 16-CV-965
Gwin, J.
Because Petitioner fails to carry his burden on this threshold issue, “judicial examination
ends.”41Accordingly, the Court OVERRULES Petitioner’s objections to the R&R and ADOPTS
the R&R on ground one.
Ground Two
Petitioner next argues that his aggravated robbery conviction was not supported by
sufficient evidence. Again, to the extent Petitioner raises this argument under the Ohio
Constitution, the claim is not cognizable here.42
The claim also fails under federal law. The Court evaluates Petitioner’s claim under two
levels of deference.
First, the Court considers “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.”43
Second, “even [if this Court concludes] that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt . . . [this Court] must still defer to the state appellate
court’s sufficiency determination as long as it is not unreasonable.44
Petitioner West argues that the lapse in time between the robbery and his brandishing a
knife against the victim was too long to support an aggravated robbery conviction.45 He argues
that at the point he brandished the knife, he was no longer “fleeing.”46

41

Maples, 427 F.3d at 1025.
Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“It is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions.”).
43
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Gipson v. Sheldon, 659 F. App’x
871, 877 (6th Cir. 2016).
44
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009) (citing 28 U.S.C. § 2254(d)(2)) (emphasis in original).
45
Doc. 11 at 4.
46
Id. at 5.
42

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Case No. 16-CV-965
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This Court agrees with the state appellate court’s analysis. The victim estimated that only
three to four minutes passed between the theft and Petitioner’s brandishing the knife against the
victim.47 Furthermore, Petitioner still had possession of the victim’s stolen property when he
brandished the knife.48 A rational trier of fact had sufficient evidence to find Petitioner was
fleeing when he brandished the knife and convict Petitioner of aggravated robbery.
Therefore, the Court OVERRULES Petitioner’s objections to the R&R and ADOPTS
the R&R on ground two.
Ground Three
Last, Petitioner West argues that a suggestive and unreliable “show up” identification
violated his due process rights. Petitioner did not object to this evidence at trial. He first raised
the issue on direct appeal. Because Petitioner did not raise the argument at trial, the state
appellate court considered the argument under the plain error standard.49
Because Petitioner did not object to the evidence at trial, his last argument is procedurally
defaulted.50 The state appellate court’s review of his claim for plain error does not preserve his
argument for federal habeas review.51
Petitioner argues that because the state appellate court did not “clearly and expressly”
state that its judgment rested on a procedural bar, his claim should proceed on the merits.52

47

Doc. 6-2 at 129, 132-33.
Id. at 133.
49
Id. at 136.
50
Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006) (finding that failure to abide by Ohio’s contemporaneous
objection rule, which requires a party to preserve error for appeal by objecting at trial, is grounds for procedural
default).
51
Cooey v. Coyle, 289 F.3d 882, 897 (6th Cir. 2002) (“We note that wherever the Ohio Supreme Court conducted
‘plain error’ review in rejecting a claim as procedurally defaulted, we must likewise treat the claim as procedurally
defaulted.”); see also Keith, 455 F.3d at 673.
52
Doc. 11 at 7 (citing Frazier v. Huffman, 343 F.3d 780, 791 (6th Cir. 2003) (“[A] procedural default does not bar
consideration of a federal claim on habeas corpus review unless the last state court rendering a reasoned opinion in
the case ‘clearly and expressly states that its judgment rests on a state procedural bar.’”).
48

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Case No. 16-CV-965
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This Court disagrees. The state appellate court made clear that Petitioner’s argument was
procedurally defaulted. It noted that Petitioner “did not move to suppress the identification at
trial and failed to object to its admission at trial.”53 “Nevertheless,” the court then conducted a
plain error review.54 This Court views “a state appellate court’s review for plain error as the
enforcement of a procedural default. 55
Accordingly, the Court OVERRULES Petitioner’s objections to the R&R and ADOPTS
the R&R on ground three.
IV. Conclusion
For the above reasons, the Court OVERRULES Petitioner’s objections to the R&R,
ADOPTS the R&R, and DENIES Petitioner’s § 2254 petition. Moreover, the Court certifies that
no basis exists upon which to issue a certificate of appealability.56

IT IS SO ORDERED.

Dated: June 8, 2017

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

53

Doc. 6-2 at 135.
Id.
55
Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001) (citing Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.
2000)).
56
28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
54

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