Chapman v. Warden Lebanon Correctional Institution

Filing 16

REPORT AND RECOMMENDATIONS Re: 4 Petition for Writ of Habeas Corpus filed by Maurice Chapman, Sr: Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the Petition for Writ of Habeas Corpus be dismissed with prejudi ce. Because reasonable jurists would not disagree with this conclusion, Mr. Chapman should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 7/2/2012. Signed by Magistrate Judge Michael R Merz on 6/15/12. (cib1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
MAURICE CHAPMAN, SR.,
:
Petitioner,

Case No. 1:11-cvc-560
:

District Judge William O. Bertelsman
Magistrate Judge Michael R. Merz

-vsWARDEN, Lebanon Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS
This is a habeas corpus case brought by Petitioner to obtain relief from his conviction in the
Hamilton County Common Pleas Court on two counts of felonious assault.
Although the standard form on which habeas petitioners are required to plead their case
provides places for a petitioner to state what constitutional rights he believes are violated by his
conviction, Mr. Chapman does not actually do this. Instead he pleads “supporting facts” for each
of three blank claims for relief, as follows:
GROUND ONE:
Supporting Facts: No weapon was used or found. Officer Metz
testified “No blood or weapon was found.” This alleged box cutter
was given “four different colors” by alleged victim. I didn’t arrive
until “4:35 p.m.” and this contradicts that States witnesses, who
contradicted each other.
GROUND TWO:
Supporting Facts: (1) Never went to arraignment, even though,
Judge stated “I did.” (2) Sat in the Hamilton County Justice Center
from October 17, 2009 until July 7, 2011. Counsel (trial) was
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ineffective. (3) No weapon; no blood; contradiction and perjury by
State’s two witnesses.
GROUND THREE:
Supporting Facts: Police report and medical record contradicted
the time, the State’s witnesses testified this fight occurred. I had all
of the documents in my possession, however, trial counsel refused
to use all the documents I had and still have.
GROUND FOUR:
Supporting Facts: Bobby Turney (alleged victim) and Jalessa Hill
gave to [sic] many contradictions during trial. Like the time of
arrival to place this incident was suppose to have happened. I will
send everything I sent to other courts.
(Petition, Doc. No. 4, PageID 146-150.) In addition to these claims, Mr. Chapman makes many
arguments in his forty-one page Reply which do not relate back to the claims in the Petition.
These will be dealt with below.

Procedural History

Petitioner was indicted by the Hamilton County Grand Jury on two counts of felonious
assault on October 26, 2009 (Indictment, Exhibit 1 to Return of Writ). Mr. Chapman claims that
he was not arraigned in open court and the record substantiates that claim; it shows that his
attorney signed on his behalf a waiver of his presence at arraignment. Id. Exhibit 2. Mr.
Chapman was convicted at a jury trial at which he testified and found guilty of both charges. Id.
Exhibit 3. The trial judge then merged both counts under the allied offenses statute, Ohio R. Code
§ 2941.25, and sentenced Mr. Chapman to the eight-year term from which he seeks release. Id.
Exhibit 4.
Represented by new counsel, Mr. Chapman appealed to the Hamilton County Court of

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Appeals raising the following assignments of error:
1. The trial court erred to the prejudice of the defendant-appellant
as there was insufficient evidence to convict.
2. The trial court erred to the prejudice of the defendant because
the verdict was against the manifest weight of the evidence.
(Argued Together) Issue Presented for Review and Argument
Where the evidence does not go beyond a reasonable doubt and does
not show that the defendant committed a felonious assault, there is
insufficient evidence to convict on the other charges.
3. The defendant received ineffective assistance of trial counsel
when counsel did not communicate with the defendant prior to
trial, and failed to reny [sic] his Rule 29 Motion after the defense
case in chief.
Issue Presented for Review and Argument
When defense counsel does not communicate with his client and
fails to renew a Rule 29 motion, the defendant receives ineffective
assistance.
4. The court abused its discretion in denying the defendant’s
motion to dismiss.
Issue Presented for Review and Argument
Where a court simply dismissed a motion without a hearing or even
a colloquy, the defendant’s procedural Due Process rights have been
violated and the court abuses it’s [sic] discretion.
Id. Exhibit 6. The Court of Appeals affirmed the conviction. State v. Chapman, Case No.
C-100473 (Ohio app. 1st Dist. Mar. 16, 2011)(unreported, copy at PageID 530-533.) The Ohio
Supreme Court declined to take jurisdiction of a subsequent appeal. Mr. Chapman later filed an
application for reopening under Ohio R. App. P. 26(B) to raise claims of ineffective assistance of
appellate counsel, but failed to appeal to the Ohio Supreme Court from a denial of that application.

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Analysis

Mr. Chapman has made many different claims at various stages of his criminal case as to
why his conviction should be vacated and he should be released. It is important at the outset of
this Court’s analysis to set out some fundamentals relating to habeas corpus practice which must
form the basis of this Court’s exercise of its jurisdiction in this case.
First of all, 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 deciding whether a conviction violated the Constitution, laws, or treaties of the United
States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Even if this Court were to find that the
state courts violated some Ohio statute or rule or even the Ohio Constitution, we do not have
authority to grant relief on that basis.
Secondly, federal constitutional claims are not preserved for consideration in this Court
unless they have been fairly presented to the state courts so that those courts can have an
opportunity to cure any federal constitutional violations. If a habeas petitioner has failed to fairly
present any of his claims in the manner in which state rules require that they be presented, he may
be held to have procedurally defaulted those claims.
The procedural default defense in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his
federal claims in state court pursuant to an adequate
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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). Failure to present an issue to the state
supreme court on discretionary review constitutes procedural default. O’Sullivan v. Boerckel,
526 U.S. 838, 848 (1999). “Even if the state court failed to reject a claim on a procedural ground,
the petitioner is also in procedural default ‘by failing to raise a claim in state court, and pursue that
claim through the state’s ordinary appellate procedures.’” Thompson v. Bell, 580 F.3d 423 (6th Cir.
2009), citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).
With these principles in mind, the Court considers the claims made by Mr. Chapman.

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First Claim: Insufficient Evidence

Fairly read, Petitioner’s Grounds One, Three, and Four, as well as the third sub-claim of
Ground Two, all assert that Mr. Chapman was convicted on insufficient evidence.
A claim that a conviction is supported by insufficient evidence states a claim for relief
under the Due Process Clause of the Fourteenth Amendment. 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). This rule was
recognized by the Ohio Supreme Court in State v. Jenks, 61 Ohio St. 3d 259, 574 N.E. 2d 492
(1991). 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.
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 court decisions are required:
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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). Just last month the Supreme Court reinforced this standard.
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
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
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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. ___, 2012 U.S. LEXIS 3943, 1-2 (U.S. May 29, 2012)(per curiam).
As the precedent makes clear, when a habeas corpus court considers a sufficiency of the
evidence claim, it cannot consider such arguments as Petitioner makes that there was contradictory
evidence about the color of the box cutter or whether the corroborating witness had a motive to lie,
etc. There was evidence from the victim that his throat had been cut by Petitioner and there was a
corroborating hospital report regarding repair of the wound. That is sufficient evidence whether
or not the victim, his throat bleeding, could accurately recall the color of the box cutter used. The
trial jury, the trial judge in deciding the motion to dismiss, and the court of appeals all decided
there was sufficient evidence and this Court must defer to those findings. Therefore the First,
Third, and Fourth Grounds for Relief and the third sub-claim of the Second Ground for Relief
should be dismissed with prejudice.

Ground Two, Sub-claim One: Presence at Arraignment

In his the first sub-claim of his Second Ground for Relief, Mr. Chapman claims that he was
not physically present at his arraignment. As noted above, the record establishes the truth of this
factual assertion. Petitioner’s trial counsel signed a waiver of his presence and apparently the
arraignment occurred without his being there.
As explained in Ohio R. Crim. P. 10, arraignment consists of reading the indictment to the
defendant and calling on him to plead to it. The Rule expressly provides the presence of the

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defendant may be waived if a plea of not guilty is entered, which is what happened here. Even
when the defendant is present, he may waive a reading of the indictment and, in this judge’s
experience, that is very common. When a defendant is literate, as Mr. Chapman clearly is, he can
as easily read the indictment to himself as have it read aloud. Because arraignments are usually a
formality, even though required by the rules of criminal procedure, waiver of defendant’s presence
is well within the implied authority of a defense attorney, so there is no question that the waiver in
this case is valid.
Perhaps more importantly, Mr. Chapman shows no prejudice from his absence, nor does he
suggest any constitutional right which was violated by his absence.

The United States

Constitution does not even require the States to provide for a grand jury, which is the body which
issues indictments. Hurtado v. California, 110 U.S. 516 (1884); Branzburg v. Hayes,408 U.S.
665, 687-88 n. 25 (1972); Gerstein v. Pugh, 420 U.S. 103 (1975); Williams v. Haviland, 467 F.3d
527 (6th Cir. 2006)(Apprendi does not change this result). The first sub-claim under Ground
Two should therefore be dismissed with prejudice.

Ground Two, Sub-claim Two: Speedy Trial Claim

In his second sub-claim in Ground Two, Mr. Chapman claims he sat in jail from October
2009 to July 20111 before he was brought to trial. Presumably he intends thereby to claim he was
denied a speedy trial as required by the Sixth Amendment.
This claim was first presented to the state courts as part of Mr. Chapman’s application for
reopening under Ohio R. App. P. 26(B). The court of appeals concluded there was no violation of
1

This date is clearly in error; trial occurred in 2010.

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the speedy trial right because all of the time between arrest and trial except for the first month was
caused by continuances sought by Mr. Chapman, including substantial time caused by his
changing counsel.

The Supreme Court has developed a four-part balancing test to use in

determining whether a defendant's right to a speedy trial has been violated: (1) the length of the
delay; (2) the reasons for the delay; (3) whether the defendant has asserted his right; and (4)
prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530-32 (1972). In this case in
particular Mr. Chapman has not shown the delay was caused by anything other than his counsels’
requests for continuances and he has not shown any prejudice. The second sub-claim of the
Second Ground for Relief should be dismissed with prejudice.

Petitioner’s Reply

In his forty-one page Answer to the Return of Writ (Doc. No. 12), Petitioner makes many
claims which are not separated as to the constitutional right allegedly violated or argued in any
particular order. The Magistrate Judge recommends ruling on these claims, treated in the order in
which they are made in the reply, as follows:
1. Failure to present videotape from the police cruiser which responded to the scene (Reply,
Doc. No. 12, PageID 1067). This claim has never been raised before and is therefore
procedurally defaulted. There is no proof that the content would be exculpatory.
2. Racial bias in jury selection. Id. at PageID 1068-1070. This claim has never been raised
before and is therefore procedurally defaulted.
3. Failure to prove a weapon was used. Id. at PageID 1071. Evidence was presented from
the victim that he was cut by Petitioner and the hospital record confirms that. See analysis
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of the insufficient evidence claims above.
4. Claim under Miranda v. Arizona, 384 U.S. 436 (1966). Id. at PageID 1073. This claim
has never been raised before and is therefore procedurally defaulted. Moreover, Mr.
Chapman was not convicted on the basis of any confession, but on the testimony of other
witnesses. Miranda warnings do not apply where a defendant consistently denied the
offense, as Mr. Chapman has.
5. Ineffective assistance of trial counsel. Id. at PageID 1076. To the extent this claim is
based on matter outside the record (e.g., counsels’ failure to consult or failure to present
evidence the defendant wanted him to present), this claim is procedurally defaulted by
failure to present it in a petition for post-conviction relief under Ohio R. Code § 2953.21.
6. Error in admitting guilt phase evidence at mitigation phase. Id. at PageID 1077. The text
of this claim supports the inference that Mr. Chapman has treated his chance to file a reply
as a “shotgun”: there is no separate mitigation phase in a non-capital trial in Ohio.
7. Repeated speedy trial challenge. Id. at PageID 1079. Here Mr. Chapman relies on the
speedy trial statute, Ohio R. Code § 2945.71. As the court of appeals found, all of the time
between arrest and trial was occasioned by motions for continuance filed on Mr.
Chapman’s behalf by his attorneys and there was therefore no violation of the Ohio statute.
But even if he had shown a violation of the Ohio statute, that would not entitle him to
habeas relief because a habeas court can only enforce federal constitutional rights.

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Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends that the
Petition for Writ of Habeas Corpus be dismissed with prejudice. Because reasonable jurists
would not disagree with this conclusion, Mr. Chapman should be denied a certificate of
appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively
frivolous and should not be permitted to proceed in forma pauperis.
June 15, 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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