Green v. Warden, Lebanon Correctional Institution

Filing 14

ORDER adopting Report and Recommendation 11 ; overruling petitioner's objections to the R&R; dismissing with prejudice petitioner's petition for writ of habeas corpus. A certificate of appealability will not issue. Petitioner is denied leave to appeal IFP. Signed by Judge Sandra S Beckwith on 8/19/11. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Curtis Green,

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: Case No. 1:10-CV-241
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Petitioner,
vs.
Timothy Brunsman, Warden,
Lebanon Correctional
Institution,
Respondent.

O R D E R
This matter is before the Court on Petitioner Curtis Green’s
petition for a writ of habeas corpus (Doc. No. 3), Magistrate
Judge Merz’s Report and Recommendation of July 11, 2011 (Doc. No.
11), and Petitioner’s objections to the Report and Recommendation
(Doc. No. 13). For the reasons that follow, Petitioner’s
objections are OVERRULED; the Court ADOPTS the Report and
Recommendation; Petitioner’s petition for a writ of habeas corpus
is DISMISSED WITH PREJUDICE.
I. Background
In 2007, Hamilton County Sheriff deputies observed
Petitioner driving a car without a front license plate. When the
deputies turned their car around, the Petitioner drove away at a
high rate of speed. After a chase, Petitioner exited the car and
fled on foot. One deputy followed and saw Petitioner digging in
his pockets. When the deputy caught up with Petitioner, he was
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lying on the ground with his arms spread out. When Petitioner
attempted to reach under his body, the deputy used a Taser to
subdue him and found a baggy containing crack cocaine and cocaine
powder “within an arm’s length” of Petitioner. Doc. No. 7, Ex. 8,
at 1. A pat-down also discovered six baggies and a knife on
Petitioner’s person. Id., Tr. Vol. I, at 349-50. The other deputy
discovered a digital scale in Petitioner’s car. Id., Tr. Vol. I,
at 303-04.
Petitioner was indicted by a Hamilton County grand jury for
trafficking of 25 to under 100 grams of crack cocaine, possession
of 25 to under 100 grams of crack cocaine, trafficking of 10 to
under 100 grams of powder cocaine, and possession of 10 to under
100 grams of powder cocaine. A jury convicted Petitioner of all
charges, and he received concurrent sentences of nine years of
imprisonment for each of the trafficking charges and concurrent
sentences of four years of imprisonment for each of the
possession charges, to be served consecutively to the trafficking
charges, for a total of thirteen years.
Petitioner appealed, raising five assignments of error: 1)
the jury erred to Petitioner’s prejudice in finding him guilty,
because the findings were not supported by sufficient evidence;
2) the jury erred to Petitioner’s prejudice in finding him
guilty, because the findings were contrary to law; 3) the trial
court erred in overruling his motion for acquittal under Ohio

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Criminal Procedure Rule 29; 4) the trial court erred to
Petitioner’s prejudice in imposing a sentence contrary to law;
and 5) the trial court erred to Petitioner’s prejudice in
sentencing him on each charge. The Court of Appeals overruled the
first three assignments of error, but sustained the fifth
assignment, vacating the sentence, and declared the fourth
assignment moot. Petitioner appealed to the Ohio Supreme Court,
but the Supreme Court declined to hear the appeal. On
resentencing, the trial court merged the two crack cocaine
offenses and the two cocaine powder offenses, and sentenced
Petitioner to nine years of imprisonment and four years of
imprisonment, respectively, to be served consecutively, for a
total of thirteen years. Petitioner did not appeal.
Petitioner filed a pro se petition for a writ of habeas
corpus on April 16, 2010 (Doc. No. 3). Petitioner pleaded the
following grounds for relief:
Ground One: Insufficient evidence.
Supporting Facts: The State failed to meet its burden of
proving that Defendant-Appellant was trafficking in and
possession of cocaine.
Ground Two: Manifest weight of the evidence.
Supporting Facts: When a finding is against the manifest
weight of the evidence, Defendant-Appellant is entitled to a
new trail [sic].
Ground Three: Motion for acquittal under Ohio Criminal
Procedure Rule 29.

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Supporting Facts: The State failed to meet its burden of
proving that Defendant-Appellant was trafficking in and
possession of cocaine.
Ground Four: The trail [sic] court erred to the prejudice of
Defendant-Appellant, imposing a sentence that is contrary to
law.
Supporting Facts: The sentence was excessive.
Ground Five: The trail [sic] court erred to the prejudice of
Defendant-Appellant in sentencing him on counts 1, 2, 3, and
4.
Supporting Facts: All counts should have been merged as
offenses of similar imports [sic].
Doc. No. 3. The Warden has filed a Return of Writ (Doc. No. 7),
arguing that grounds one, three, and five are without merit,
ground two is not a cognizable ground of relief in a federal
habeas proceeding, and ground four should be dismissed as
unexhausted. Petitioner did not file a reply.
In his Report and Recommendation, the Magistrate Judge,
considering grounds one and three together, held that the state
court’s adjudication of the sufficiency of the evidence was not
an unreasonable application of federal law. He also held that
ground two was a question of state law and, therefore, not a
claim upon which federal habeas relief could be granted. He held
that ground four should be dismissed because the sentence imposed
was not excessive under the Eighth Amendment. And he finally held
that ground five should be dismissed because the state could
punish dealing in crack and powder cocaine separately without
violating the Double Jeopardy Clause.
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Petitioner filed timely objections to some aspects of Judge
Merz’s Report and Recommendation. Petitioner does not object to
Judge Merz’s conclusions that grounds four and five should be
dismissed. In his objections, Petitioner argues with respect to
grounds one and three that Judge Merz erred in finding that the
state courts reasonably applied federal law concerning the
sufficiency of the evidence. Petitioner argues that because he
was arrested on a public sidewalk and no testimony was offered
alleging that Petitioner threw the drugs on the sidewalk, no
rational trier of fact could have found that he constructively
possessed the drugs discovered, and the state court unreasonable
applied this standard. Petitioner also objects that Judge Merz
erred in finding that ground two involved a non-cognizable state
law claim. Petitioner argues that the manifest weight of the
evidence claim “should be reviewed as if raising a claim of due
process.” Doc. No. 13, at 3.
II. Standard of Review
“The district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected
to.” Fed. R. Civ. P. 72(b)(3). Pursuant to the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, the
district court shall not grant a petition for a writ of habeas
corpus on any claim that was adjudicated on the merits in state
court unless the state court’s adjudication of the claim:

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(1)

resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or

(2)

resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).
A state court opinion violates the “unreasonable
application” clause of Section 2254 when “the state court
identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Williams v.
Taylor, 529 U.S. 362, 413 (2000). A state-court opinion will also
involve the “unreasonable application” of Supreme Court precedent
if it “either unreasonably extends or unreasonably refuses to
extend a legal principle from Supreme Court precedent to a new
context.” Seymour v. Walker, 224 F.3d 542, 549 (6th Cir. 2000).
The Supreme Court stated that “a federal habeas court making the
‘unreasonable application’ inquiry should ask whether the state
court’s application of clearly established federal law was
objectively unreasonable.” Williams, 529 U.S. at 409. In defining
the meaning of the term “objectively unreasonable,” the Court
stated that “a federal habeas court may not issue the writ simply
because the court concludes in its independent judgment that the
relevant state court decision applied clearly established federal
law erroneously or incorrectly. Rather, that application must
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also be unreasonable.” Id. at 411.
III. Analysis
Because Petitioner has not objected to Judge Merz’s
disposition of grounds four and five, this Court will not review
them. The Court will review Judge Merz’s disposition of grounds
one, two, and three de novo. Petitioner’s objections are not
well-taken; therefore, he is not entitled to relief on any of the
claims raised in his petition.
A. Sufficiency of the evidence
The Court concurs with the Magistrate Judge’s conclusion
that grounds one and three argue the same claim for relief.
Petitioner contends that because the drugs were discovered on a
sidewalk accessed by all members of the public and the state
“didn’t offer [any] evidence to tie him to these drugs
whatsoever, except that the Petitioner was running down the
sidewalk being chased by police and he was tased by a police
taser and then they arrested Petitioner and the drugs were near
him on the ground,” Doc. No. 13, at 2, no rational trier of fact
could have found he constructively possessed the drugs, and the
state courts were unreasonable in finding otherwise.
For a sufficiency of the evidence claim, “the relevant
question is 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

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reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
For the Court to grant Petitioner habeas relief on this claim,
not only must the state court have incorrectly determined that a
rational trier of fact could have found there was sufficient
evidence for a conviction, but that determination must also have
been unreasonable. See 28 U.S.C. § 2254(d)(1).
The Court agrees with Judge Merz’s determination that these
grounds are without merit. The trial transcript shows that
Officer Gill testified that as he pursued Petitioner over a
fence, he observed Petitioner digging his hands in his pockets.
Doc. No. 7, Tr. Vol. I, at 344-45. Officer Gill also testified
that Petitioner attempted to reach his left hand under his body
while he was lying on the ground. Id. at 347-48. Moreover, the
police discovered baggies and a knife on Petitioner’s person and
the scale in his car. Based on this evidence, it was not an
unreasonable application of federal law for a state court to find
that a rational trier of fact would find beyond a reasonable
doubt that Petitioner possessed the drugs.
Accordingly, this objection is overruled.
B. Manifest weight of the evidence
Petitioner argues that Judge Merz erred by not considering
his manifest weight of the evidence claim as a due process claim.
A manifest weight of the evidence claim is not a due process
claim because, as Judge Merz correctly stated, “the Constitution

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does not forbid such convictions.” Doc. No. 11, at 4. In Tibbs v.
Florida, the Supreme Court explained that a “reversal based on
the weight of the evidence ... can only occur after the State has
presented sufficient evidence to support conviction and has
persuaded the jury to convict.” 457 U.S. 31, 43 (1982) (emphasis
added). Therefore, a manifest weight of the evidence claim does
not present a federal question, because although the judge may
decide the interests of justice require a second opportunity to
acquit, Fourteenth Amendment due process has already been
satisfied. To the extent that ground two articulates a due
process claim, the discussion in the previous section
demonstrates that the claim would still fail.
Accordingly, this objection is also overruled.
IV. Conclusion
For these reasons, Petitioner’s objections to Magistrate
Judge Merz’s Report and Recommendation are OVERRULED. The Court
ADOPTS the Report and Recommendation. Petitioner’s petition for a
writ of habeas corpus is DISMISSED WITH PREJUDICE.
A certificate of appealability will not issue with respect
to this order because jurists of reason would not find this
Court’s rulings debatable. See Slack v. McDaniel, 529 U.S. 473,
484-85 (2000). Petitioner remains free to request issuance of a
certificate of appealability from the Court of Appeals. See Fed.
R. App. P. 22(b). The Court certifies pursuant to 28 U.S.C. §
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1915(a)(3) that an appeal of this order would not be taken in
good faith, so Petitioner is DENIED leave to appeal in forma
pauperis. See Fed. R. App. P. 24(a)(4). Petitioner may apply to
the Court of Appeals to proceed in forma pauperis within 30 days
after receiving this notice. See id. 24(a)(5).

IT IS SO ORDERED

Date August 19, 2011

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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