Lovett v. Warden Southern Ohio Correctional Institution

Filing 28

REPORT AND RECOMMENDATIONS. It is respectfully recommended that the Petitionherein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and this Co urt should certify to the Sixth Circuit that any appeal would not be taken in objective good faith and should not be permitted to proceed in forma pauperis. Objections to R&R due by 7/6/2012. Signed by Magistrate Judge Michael R Merz on 6/19/2012. (mdf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
KELVIN LOVETT,
:
Petitioner,

Case No. 1:11-cv-518
:

Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

-vsDONALD MORGAN, Warden,
Southern Ohio Correctional Facility,
:
Respondent.

REPORT AND RECOMMENDATIONS
This is a habeas corpus case brought pro se by Petitioner Kelvin Lovett to obtain relief
from his conviction in the Hamilton County Common Pleas Court for aggravated robbery, rape,
and kidnapping with a three-year consecutive firearm specification conviction.
Lovett pleads the following grounds for relief:
Ground One: The evidence was insufficient as a matter of law
and/or against the manifest weight of the evidence to sustain
Appellant’s convictions for rape, kidnapping, aggravated robbery,
and robbery
Ground Two: Appellant was denied effective assistance of counsel
in violation of his constitutional rights, thus prejudicing his right to
a fair trial.
Ground Three: The Trial Court erred as a matter of law by
improperly sentencing Appellant.
Ground Four: The prosecutor erred to the substantial prejudice of
the defendant-appellant when it [sic] knowingly presented prejuried
[sic] testimony at trial. (Issues for review and argument) Did the
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state violate the appellant’s right to due process and a fair trial when
the prosecutor knowingly introduced and/or allowed trial testimony
that it [sic] knew or should have known was false and allowed it to
go uncorrected when it appeared?
Ground Five: Appellant was denied his Sixth Amendment right
under section 5, Article I, Ohio Constitution right to confront
witnesses.
Ground Six: Appellant was deprived of his Fifth Amendment,
U.S. Constitution; section 10, Article I [Ohio Constitution]
indictment by grand jury and double jeopardy.
Ground Seven:
Appellant was prejudiced by his Fourth
Amendment U.S. Constitution; Section 14, Article I Ohio
Constitution search and seizure.
Ground Eight: The trial court erred to the prejudice of
Appellant’s co-defendant by commenting on his failure to testify.
(Petition, Doc. No. 1.)

Procedural History

Lovett was indicted on April 30, 2009, along with Johnny Gamble, on charges of rape,
kidnapping, aggravated robbery, and robbery, all but the last carrying firearm specifications.
After waiver of a jury, he and Gamble were jointly tried by a Common Pleas judge and found
guilty of all counts. After merging the firearm specifications and the robbery with the aggravated
robbery, the court sentenced Lovett to an aggregate sentence of eighteen years.
Lovett appealed, raising the following assignments of error:

1. The evidence was insufficient as a matter of law and/or against the manifest weight of
the evidence to sustain appellant’s convictions for rape, kidnapping, aggravated
robbery and robbery.

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2. Appellant was denied effective assistance of counsel in violation of his constitutional
rights thus prejudicing his right to a fair trial.

3. The trial court erred as a matter of law by improperly sentencing appellant.

The Hamilton County Court of Appeals affirmed. State v. Lovett, Case No. C-090884 (Ohio App.
1st Dist. Oct. 20, 2010)(unreported, copy at Return of Writ, Doc. No. 17, Ex. 11, PageID 143-145.)
Lovett then appealed to the Ohio Supreme Court, raising as propositions of law the assignments of
error he had presented to the court of appeals. (Return of Writ, Doc. No. 17, Ex. 13, PageID
149-171.) However the Supreme Court declined to take jurisdiction of the case. (Return of
Writ, Doc. No. 17, Ex. 14.)
On January 25, 2011, Lovett filed an Application for Reopening under Ohio r. App. P.
26(B) raising the following claims:
1. The prosecution erred to the substantial prejudice of the
defendant-appellant when it knowingly presented perjured
testimony at trial.
2. Appellant was denied of his Sixth Amendment right under
Section 5, Article 1, Ohio Constitution right to confront witness.
3. Appellant was deprived of his Fifth Amendment, U.S.
Constitution, Section 10, Article 1, Indictment by Grand Jury,
and Double Jeopardy.
4. Defendant-Appellant was prejudiced by his Fourth Amendment
U.S. Constitution; Section 14, Article 1, Ohio Constitution
Search and Seizure.
5. The trial court erred to the prejudice of Appellant’s
Co-Defendant by commenting on his failure to testify.

(Return of Writ, Doc. No. 17, Ex. 15, PageID 173-185.) The Court of Appeals denied the
Application as untimely and Lovett did not appeal further to the Ohio Supreme Court. Instead he

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filed here, raising as his eight grounds for relief the eight claims he made at various stages in the
state courts.

Analysis

First Ground for Relief: Insufficient Evidence

In his First Ground for Relief, Lovett argues his conviction is against the manifest weight
of the evidence and also not supported by sufficient evidence.
An allegation that a verdict was entered upon insufficient evidence states a claim under the
Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.
Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d
987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order
for a conviction to be constitutionally sound, every element of the crime must be proved beyond a
reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he 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
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable inferences
from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). Of course, it is state
law which determines the elements of offenses; but once the state has adopted the elements, it
must then prove each of them beyond a reasonable doubt. In re Winship, supra.
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On the other hand, a claim that a verdict is against the manifest weight of the evidence
cannot be heard in federal habeas corpus because it does not state a claim for relief under the
United States Constitution. In State v. Thompkins, 78 Ohio St. 3d 380 (1997), the Ohio Supreme
Court reaffirmed the important distinction between appellate review for insufficiency of the
evidence and review on the claim that the conviction is against the manifest weight of the
evidence. It held:
In essence, sufficiency is a test of adequacy. Whether the evidence
is legally sufficient to sustain a verdict is a question of law. State v.
Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148.
In addition, a conviction based on legally insufficient evidence
constitutes a denial of due process. Tibbs v. Florida (1982), 457
U.S. 31, 45, 102, 387 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing
Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560. Although a court of appeals may determine that a judgment of
a trial court is sustained by sufficient evidence, that court may
nevertheless conclude that the judgment is against the weight of the
evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at
388-389, 124 N.E.2d at 149. Weight of the evidence concerns "the
inclination of the greater amount of credible evidence, offered in a
trial, to support one side of the issue rather than the other. It
indicates clearly to the jury that the party having the burden of proof
will be entitled to their verdict, if, on weighing the evidence in their
minds, they shall find the greater amount of credible evidence
sustains the issue which is to be established before them. Weight is
not a question of mathematics, but depends on its effect in inducing
belief." (Emphasis added.)
When a court of appeals reverses a judgment of a trial court on the
basis that the verdict is against the weight of the evidence, the
appellate court sits as a " 'thirteenth juror' " and disagrees with the
factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S.
at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v.
Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485
N.E.2d 717, 720-721 ("The court, reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving
conflicts in the evidence, the jury clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be
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reversed and a new trial ordered. The discretionary power to grant
a new trial should be exercised only in the exceptional case in which
the evidence weighs heavily against the conviction.").
78 Ohio St. 3d at 387.
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to groups
who might view facts differently than we would. First, as in all
sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits 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. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993). Thus, even though we might have not
voted to convict a defendant had we participated in jury
deliberations, we must uphold the jury verdict if any rational trier of
fact could have found the defendant guilty after resolving all
disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
2254(d)(2).
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v.
Palmer, 541 F.3d 652 (6th Cir. 2008).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
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deference. First, on direct appeal, "it is the responsibility of the jury
-- not the court -- to decide what conclusions should be drawn from
evidence admitted at trial. A reviewing court may set aside the jury's
verdict on the ground of insufficient evidence only if no rational
trier of fact could have agreed with the jury." Cavazos v. Smith, 565
U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per
curiam). And second, on habeas review, "a federal court may not
overturn a state court decision rejecting a sufficiency of the
evidence challenge simply because the federal court disagrees with
the state court. The federal court instead may do so only if the state
court decision was 'objectively unreasonable.'" Ibid. (quoting
Renico v. Lett, 559 U. S. ___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d
678 (2010) (slip op., at 5)).
Coleman v. Johnson, 566 U.S. ___, 132 S. Ct. 2060, 182 L. Ed. 2d 978 (2012)(per curiam).
In deciding this claim on direct appeal, the Court of Appeals held:
In his first assignment of error, Lovett challenges the weight and
sufficiency of the evidence adduced to support his convictions. Our
review of the entire record fails to persuade us that the trial court,
acting as the trier of fact, clearly lost its way and created such a
manifest miscarriage of justice that the convictions must be reversed
and a new trial ordered? The trial court was entitled to reject
Lovett's theory that the victim had participated in consensual sex
with Lovett and Gamble. The trial court, having received the
testimony of each witness, including that of Lovett and the victim,
was free to conclude that Lovelt had lured the victim to his
apartment so that he and Gamble could kidnap, assault, rape, and
rob him at gunpoint. See State v. DeHass (1967), 10 Ohio St.2d 230,
227 N.E.2d 212, paragraph one of the syllabus. Moreover, the
record reflects substantial, credible evidence from which the court
could have reasonably concluded that all elements of the charged
crimes had been proved beyond a reasonable doubt. See Jackson v.
Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781; Slate v. COil
way, 108 Ohio St.3d 214, 2006-0hio-79I, 842 N.E.2d 996,1136. The
assignment of error is overruled.
State v. Lovett, supra, PageID 144.
The Magistrate Judge concludes the Court of Appeals’ decision is not an objectively
unreasonable application of Jackson v. Virginia, the relevant Supreme Court case. Gamble did
not testify at all, so the essential contest over whether the sexual conduct was consensual or forced
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was between Lovett and Crawford. The trier of fact was entitled to credit Crawford’s testimony,
given the presence of Gamble at Lovett’s apartment, the attempted destruction of evidence, the
videotape evidence which remained, the prior theft of Gamble’s cellphone by Crawford, and the
theft on this occasion of Crawford’s cellphone.1 Lovett admits to lying about the events in
question but asserts Crawford lied more. But Jackson v. Virginia does not require that a trial
judge, hearing a case without a jury, be able to sort out with certainty the conflicting stories of
various participants in a criminal offense. There was sufficient believable evidence in this case to
support a conviction. Ground One for Relief should therefore be dismissed with prejudice.

Ground Two: Ineffective assistance of trial counsel

In his Second Ground for Relief, Lovett argues he received ineffective assistance from his
trial counsel. The Court of Appeals also decided this claim on the merits, holding:
Lovett's second assignment of error, in which he claims that he was
denied the effective assistance of trial counsel, is also overruled.
After reviewing the entire record, we hold that counsel's efforts
were not deficient and that Lovelt was not prejudiced in any way.
See Lockhart v. Fretwell (1993), 506 U.S. 364, 370, 113 S.Ct. 838;
see, also, Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct.
2052.
State v. Lovett, supra, at PageID 144. While this decision is summary and made without any
explanation, it is clear the Court of Appeals did decide the claim on the merits and was applying
the correct Supreme Court precedent, Strickland v. Washington. It is the decisions of state courts
that federal habeas courts review, not their explanations of those decisions. Harrington v.
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Lovett admits testifying Gamble was “going to hold Mr. Crawford’s phone for collateral.” Collateral for what?
To force Crawford to return Gamble’s cellphone? How did Gamble happen to be present when Lovett brought
Crawford home for consensual sex? Having had his own cellphone taken as collateral, did Crawford then engage in
consensual sex with Gamble?

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Richter, 562 U.S. ___, 131 S. Ct. 770, 792 (2011). In neither his Petition nor his Reply does
Lovett make any argument about how his counsel was allegedly ineffective.

The four

deficiencies he argued on direct appeal were failure to file a motion to suppress to keep Detective
Smallwood from mentioning at trial Lovett’s involvement in an alleged drug offense in Arkansas,
failure to request a review of Crawford’s grand jury testimony after he testified, failure to have an
independent medical expert review the hospital records from Crawford’s post-incident visit, and
failure to argue that the offenses of rape and kidnapping were allied offenses of similar import
which should be merged under Ohio R. Code § 2941.25.
Having reviewed the briefing on direct appeal, the Magistrate Judge is not persuaded
Lovett established any ineffective assistance of trial counsel. The trial judge as the trier of fact
could readily put aside irrelevant testimony about other acts. It was clear from the medical
records that Crawford’s injuries, if any, were slight and consistent with consensual anal sex, but
trial counsel was able to make this argument without an expert. Crawford was vigorously
cross-examined and there is no showing that the grand jury transcript would have made a
difference.

Finally, given the temporal and geographic distance involved, the rape and

kidnapping were not allied offenses of similar import in this case.
Therefore Ground Two should be dismissed with prejudice.

Ground Three: Improper Sentence

In his Third Ground for Relief, Lovett claims he was improperly sentenced. In neither the
Petition nor the reply, however, does he explain what he means by an improper sentence.
On direct appeal Lovett argued in his third assignment of error that his sentence was
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improper because the rape and kidnapping counts should have been merged under the Ohio allied
offenses of similar import statute, Ohio R. Code § 2941.25 and that consecutive sentencing was
improper under Oregon v. Ice, 555 U.S. 160 (2009)(Appellant’s Brief, Return of Writ, Ex. 9,
PageID 118-120). The Court of Appeals decided this assignment of error as follows:
In his final assignment of error, Lovett asserts that the trial court
erred when imposing sentence. He first argues that the trial court
erred by separately convicting and sentencing him for kidnapping
and rape, as they were allied offenses of similar import. See R.C.
2941.25(A). The offenses were allied and of similar import. See
State v. Bohannon, 1st Dist. Nos. C-070859 and C-070860,
2010-0hio-4596; see, also, State v. Logan (1979), 60 Ohio St.2d
126,397 N.E.2d 1345. But because the record reflects both a
temporal and a spatial separation between the commission of the
rape in Lovett's house and Lovett's and Gamble's forcing of the
victim into the trunk of the car some time later, the offenses were
committed separately, and Lovett could have been convicted of and
sentenced for each offense. See, e.g., State v. Jackson (Sept. 15,
2010), lst Dist. No. C-090414, 2010-0hio-4312, ¶ 26; see, also, R.C.
2941.25(B).
Lovett's argument that the trial court erred in imposing consecutive
sentences of imprisonment must also fail. This court has held that,
even after the Supreme Court's decision in Oregon v. Ice, (2009), U.S. - ,129 S.Ct. 711.Ohio courts have the authority to impose
consecutive sentences. See State v. Long, 1st Disl. Nos. C-090248
and C-090249, 2010-0hio-1062, ¶36. The third assignment of error
is overruled.
State v. Lovett, supra, PageID 145.
Federal habeas corpus is available only to correct federal constitutional violations. 28
U.S.C. §2254(a); Wilson v. Corcoran, 562 U.S. ___, 131 S. Ct. 13; 178 L. Ed. 2d 276 (2010);Lewis
v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida,
463 U.S. 939 (1983).

"[I]t is not the province of a federal habeas court to reexamine state court

determinations on state law questions. In conducting habeas review, a federal court is limited to

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deciding whether a conviction violated the Constitution, laws, or treaties of the United States."
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Lovettt argued the first part of his third assignment of error purely as a question of state law
under Ohio R. Code § 2941.25. To the extent he is arguing here that the Court of Appeals was
wrong in its interpretation of that statute, the question is not cognizable in federal habeas corpus
because it does not implicate any federal constitutional question.
To the extent Lovett is claiming here, as he did in the Court of Appeals, that consecutive
sentencing is unconstitutional under Blakely v. Washington, 542 U.S. 296 (2004), that argument
was put to rest by Oregon v. Ice, supra. The Court of Appeals’ decision is neither contrary to nor
an unreasonable application of Oregon v. Ice. The Third Ground for relief should therefore be
dismissed with prejudice.

Grounds Four, Five, Six, Seven, and Eight

In his last five Grounds for Relief, Lovett argues he was subjected to prosecutorial
misconduct, denied his Confrontation Clause rights, deprived of his right to grand jury indictment
and protection against double jeopardy, prejudiced by an unconstitutional search and seizure, and
prejudiced by the prosecutor’s comment on Gamble’s failure to testify.
The Warden argues all of these claims are barred by Lovett’s procedural default in failing to
present them on direct appeal, since they all depend on the record. Lovett makes no response to
this argument.
The procedural default defense in habeas corpus is described by the Supreme Court as
follows:
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In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an adequate
and independent state procedural rule, federal habeas
review of the claims is barred unless the prisoner can
demonstrate cause of the default and actual prejudice
as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right
he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72
(1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas
petitioner who fails to comply with a State’s rules of procedure waives his right to federal habeas
corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000); Murray v. Carrier, 477 U.S.
478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87. Wainwright replaced the
"deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963). Coleman, 501 U.S. at 724.
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and
prejudice standard of Wainwright v. Sykes, 433 U. S. 72 (1977). Murray v. Carrier, 477 U.S. 478,
485 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155 (6th Cir.
1994); Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985). Lovett admits in his Petition that these
claims were first raised in his Application for Reopening. However, that is not sufficient to
preserve them for habeas review, since the claim made in a rule 26(B) application is ineffective
assistance of appellate counsel and not the underlying claims. Lott v. Coyle, 261 F.3d 594, 611-12
(6th Cir. 2001); White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005).

Because Lovett failed to present these five claims on direct appeal, they have been
procedurally defaulted and should be dismissed with prejudice.

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Conclusion

In accordance with the foregoing analysis, it is respectfully recommended that the Petition
herein be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of appealability and this Court should certify
to the Sixth Circuit that any appeal would not be taken in objective good faith and should not be
permitted to proceed in forma pauperis.
June 19, 2012.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See, United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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