English v. Warden Noble Correctional Institution

Filing 21

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - It is again respectfully recommended that the Petition be dismissed with prejudice, that the Petitioner be denied a certificate of appealability, and that the Court certify any appeal would be objectively frivolous. Objections to R&R due by 10/18/2012. Signed by Magistrate Judge Michael R Merz on 10/1/2012. (kpf1)

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

Case No. 1:11-cv-675
:

District Judge S. Arthur Spiegel
Magistrate Judge Michael R. Merz

-vsED BANKS, Warden, Noble
Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus action is before the Court on Petitioner’s Objections (Doc. No. 19) to
the Magistrate Judge’s Report and Recommendations (the “Report,” Doc. No. 15) recommending
that the Petition be dismissed with prejudice.

Judge Spiegel has recommitted the case for

reconsideration in light of the Objections (Order, Doc. No. 20).

Ground for Relief One: Vindictive Sentencing

In his First Ground for Relief, English asserts the trial judge punished him by sentencing
him more harshly for insisting on a jury trial rather than pleading. This claim was not presented
on direct appeal, but English seeks to excuse that default by claiming it was ineffective assistance
of appellate counsel to fail to present the claim. He made his claim of ineffective assistance of
appellate counsel in an Application for Reopening under Ohio R. App. P. 26(B) and the claim was
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decided against him on the merits by the Hamilton County Court of Appeals. That court
concluded the claim would not have succeeded had it been raised because it did not have support in
the record. English argued in his Reply that the conclusion of the court of appeals was wrong
because there was record support and he cited a colloquy on the first morning of trial (Reply, Doc.
No. 12, PageID 2034, citing Trial Tr. 101-102, Return of Writ, Doc. No. 9, Ex. 11, PageID
677-678). The Report concluded that this colloquy supported the court of appeals’ opinion that
the record did not show vindictive sentencing (Report, Doc. No. 15, PageID 2080).
In his Objections, English asserts “The Magistrate and Petitioner agree that Ground One
has not been Procedurally Defaulted. . . .” (Doc. No. 19, PageID 2114). That is not correct.
The Report found Ground One was procedurally defaulted because it had not been raised on direct
appeal and English failed to prove cause and prejudice to excuse that default, i.e., he failed to show
that the court of appeals’ decision that it was not ineffective assistance of appellate counsel to raise
this claim was an objectively unreasonable application of Supreme Court precedent (Report, Doc.
No. 15, PageID 2080).
English again points to the colloquy about a possible plea which occurred at the
commencement of trial on August 12, 2008, and which is quoted in the Report from the trial
transcript (Report, Doc. No. 15, PageID 2079-2080). English argues that it can be inferred from
this colloquy that the trial judge had been involved in plea negotiations to the extent of talking with
his family to try to get them to persuade him to take the offered deal (Objections, Doc. No. 19,
PageID 2114). However, as the court of appeals noted, there is no admissible evidence in the
record that such a meeting occurred: no affidavits from family members who were present, no
testimony about what the judge said and did.

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Petitioner asks for an evidentiary hearing,

presumably to supply that evidence, but this Court is precluded from considering any evidence
which might be offered at such a hearing. Cullen v. Pinholster, 563 U.S. ___, 131 S.Ct. 1388
(2011).

Grounds Two and Seven: Insufficient Evidence

Both Grounds Two and Seven were analyzed together in the Report because both raise the
legal question whether the evidence was sufficient to support the convictions (Report, Doc. No.
15, PageID 2080-2088). This claim was made on direct appeal and decided on the merits by the
Hamilton County Court of Appeals under the correct federal standard adopted in Jackson v.
Virginia, 443 U.S. 307 (1979).
English first objects that “[t]he Magistrate is misrepresenting the truth concerning the
surveillance of Officer Fangman as being around the clock surveillance when there is clearly no
testimony of [sic] provided to this assertion” (Objections, Doc. No. 19, PageID 2115). That is
not correct. There is no such finding anywhere in the Report. Instead, the Report quoted the
court of appeals’ finding that Officer Fangman’s surveillance was “limited.” (Report, Doc. No. 15,
PageID 2081.)
English then spends several pages of the Objections (PageID 2115-2117) disagreeing with
the Officer Fangman’s testimony and attempting to show that he was lying. The jury heard
Fangman’s and Petitioner’s testimony. It was entitled to believe Fangman and not the Petitioner.
As the Report concluded, “[t] he question of credibility of witnesses is for the jury and there was
sufficient evidence presented which, if the jury believed it as they evidently did, could convince a

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rational juror that Petitioner was guilty beyond a reasonable doubt” (Report, Doc. No. 15,
PageID 2088).

Ground Three: Violation of the Fourth Amendment
Ground Six: Failure to Disclose the Identity of the Confidential Informant

In Ground Three English claims his Fourth Amendment rights were violated when his
residence was searched on an improper search warrant. The Report concluded merits review of
this claim was barred by Stone v. Powell, 428 U.S. 465 (1976).
In Ground Six English claims his Confrontation Clause rights were violated when the
identity of the confidential informant used to obtain the search warrant was not disclosed. The
Report concluded this claim was procedurally defaulted by failure to raise it on direct appeal and
the court of appeals’ failure to find ineffective assistance of appellate counsel in not including it
was an objectively reasonable application of Supreme Court precedent (Report, Doc. No. 15,
PageID 2096-2097).
English argues his objections on these two Grounds for Relief together (Objections, Doc.
No. 19, PageID 2117-2121). The nub of his claim is that there was no confidential informant, but
instead the informant was made up and the affidavit in support of the search warrant was perjured.
In support of this theory, English quotes in his Objections the statement of this theory made by his
trial attorney, Mr. Felson, in a Motion to Disclose the informant’s name (Exhibit 12 to Return of
Writ, Doc. No. 9, PageID 198-201). This, of course, is lawyer argument, not evidence of any sort.
Petitioner was given an evidentiary hearing on his motion to suppress and there is no testimony in

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support of that theory, but only counsel’s cross-examination of Officer Fangman (See Transcript,
Return of Writ, Doc. No. 9, PageID 577-630). English offers no argument about how this hearing
was unfair or how he was denied an opportunity to litigate the motion, except that he was not given
the name of the informant. He cites no Supreme Court precedent holding that a “full and fair
opportunity to litigate” a Fourth Amendment claim requires disclosure of the confidential
informant relied on by the police.
With respect to his Sixth Ground for Relief, Mr. English merely asserts that “[h]ad this
motion been litigated, there exists a reasonable possibility that it would have been shown that the
police did in fact falsify information in its [sic] affidavit to obtain a search warrant for the
residence where Petitioner was found” (Objections, Doc. No. 19, PageID 2120). He goes on to
claim that the confidential informant did not exist, but he points to no evidence in the record to
support that assertion. Obviously there is no Confrontation Clause violation in the failure to
disclose a non-existent person who did not testify.
Finally, English says nothing about his standing to contest the search of the place where he
was arrested when he vigorously denied it was his residence at all.

Ground Five: Ineffective Assistance of Trial Counsel

In his Fifth Ground for Relief, English asserts his trial attorney, Edward Felson, was
ineffective in a number of ways. The Report found this claim procedurally defaulted by English’s
failure to include it in a timely petition for post-conviction relief under Ohio Revised Code §
2953.21, noting that English’s post-conviction petition was dismissed on this basis (Report, Doc.

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No. 15, PageID 2094-2095). The Report also found a second procedural default in Petitioner’s
failure to appeal the dismissal to the Ohio Supreme Court. Id. The Report concluded English had
offered no showing of cause and prejudice to excuse either of these defaults.
English now seeks to excuse his procedural default in filing the post-conviction petition
late by relying on Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012). In
that case the Supreme Court held:
[W]hen a State requires a prisoner to raise an
ineffective-assistance-of-trial-counsel claim in a collateral
proceeding, a prisoner may establish cause for a default of an
ineffective-assistance claim in two circumstances. The first is where
the state courts did not appoint counsel in the initial-review
collateral proceeding for a claim of ineffective assistance at trial.
The second is where appointed counsel in the initial-review
collateral proceeding, where the claim should have been raised, was
ineffective under the standards of Strickland v. Washington, 466 U.
S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To overcome the
default, a prisoner must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one,
which is to say that the prisoner must demonstrate that the claim has
some merit. Cf. Miller-El v. Cockrell, 537 U. S. 322, 123 S. Ct.
1029, 154 L. Ed. 2d 931 (2003) (describing standards for certificates
of appealability to issue).
132 S. Ct. at 1318-1319. Ohio requires ineffective assistance of counsel claims which depend on
the trial record to be raised on direct appeal, but claims depending on evidence dehors the record to
be raised by petition for post-conviction relief under Ohio Revised Code § 2953.21. Petitioner’s
claim of ineffective assistance of trial counsel relied on in his Objections is the failure to present at
trial the testimony of Brooke Goodwin who allegedly would have testified that the drugs and
weapons the police found belonged to her and the owner of the house, John Kenney. That is a
claim which depends on evidence outside the record, so Ohio would require it to be presented in a
post-conviction petition.
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Martinez is of no assistance to Petitioner. He makes no showing that he sought to have
counsel appointed to represent him in the post-conviction proceeding, nor was his default – filing
late – the result of any ineffective assistance of counsel in that proceeding. Rather his filing was
late because he mistakenly believed that the five federal holidays which fell during the 180-day
period he had within which to file would not be counted, but there is no rule of law to that effect.
Even in federal court, those five holidays would be excluded even from very short periods of time
only if the holiday was the last day of the period. Fed. R. Civ. P. 6(A)(1)(C). He also claims the
benefit of the “mailbox” rule in Houston v. Lack, 487 U.S. 266 (1988). However, Ohio does not
recognize the mailbox rule, State, ex rel Tyler, v. Alexander, 52 Ohio St. 3d 84 (1990), and is not
constitutionally required to do so. Maples v. Stegall, 340 F.3d 433 (6th Cir. 2003); Adams v.
LeMaster, 223 F.3d 1177, 1183 (10th Cir. 2000).
English argues the second default held against him – failure to appeal to the Ohio Supreme
Court from dismissal of his post-conviction petition – did not happen. As proof, he attaches
received-stamped copies of his Notice of Appeal and Memorandum in Support of Jurisdiction
(Exhibit 3 to Objections, Doc. No. 19, PageID 2141-2149).
The Return of Writ asserts “English did not pursue an appeal to the Ohio Supreme Court.”
(Return of Writ, Doc. No. 9, PageID 48). As his exhibits show, he did attempt to pursue an
appeal, but it was not accepted: “received” stamps in the Ohio Supreme Court do not reflect filing
and there is no reported decision of the Ohio Supreme Court declining to take jurisdiction over an
appeal from Hamilton County App. Case No. C-090868. From these facts, the Magistrate Judge
infers that whatever English did in attempting to appeal, he was not successful in filing an appeal.

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Thus English has not overcome either of the procedural defaults of Ground Five which
were found in the Report.

Ground Eight: Prosecutorial Misconduct

In his Eighth Ground for Relief, English asserts he was denied a fair trial by many
instances of prosecutorial misconduct.

The Report found all of these claims procedurally

defaulted by failure to raise them on direct appeal except for the claim that the prosecutor had
called English a liar and that claim was procedurally defaulted by failure of trial counsel to make a
contemporaneous objection (Report, Doc. No. 15, PageID 2097-2099). Petitioner makes no
response to this finding, but merely asks for an evidentiary hearing (Objections, Doc. No. 19,
PageID 2126). Such a hearing is precluded by Pinholster, supra.

Ground Nine: Denial of a Continuance

In his Ninth Ground for Relief, English claims he was denied effective assistance of
counsel because the trial court denied a continuance of trial to allow counsel to prepare. The
Report found the claim was procedurally defaulted and, alternatively, without merit given that Mr.
Felson was the sixth attorney English retained to try the case.
The court of appeals had held it was not ineffective assistance of appellate counsel to fail to
raise this claim on direct appeal because it depended on evidence outside the record. English
disputes that in his Objections, noting that the denial of continuance is shown in the record.

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While that is correct, what the court of appeals found and what the Report agrees with is that
English’s appellate attorney could not have shown any prejudice from denial of the continuance
based on what was in the record. In other words, to show prejudice, English would have to show
what additional preparation Mr. Felson needed and there is no evidence of that on the record.
Petitioner now says his sole reason for wanting a continuance was to present the testimony of
Brooke Goodwin (Objections, Doc. No. 19, PageID 2127). However, he presents no record
references to show that that point was made to the trial judge or why Goodwin was not available at
the time of trial.

Ground Ten: Appeals Court Failure to Consider pro se Supplemental Brief on the Merits

In his Tenth Ground for Relief, English complains that the Hamilton County Court of
Appeals refused to consider his supplemental pro se brief.

The Report found this claim

procedurally defaulted by failing to include it in the direct appeal to the Ohio Supreme Court and
also without merit because there no constitutional right to hybrid representation (Report, Doc. No.
15, PageID 2101, citing McKaskle v. Wiggins, 465 U.S. 168 (1984)). The Objections do not
require further analysis of this Ground for Relief.

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Ground Eleven: Admission of Douglas Ventre’s Testimony

In his Eleventh Ground for Relief, English complains that the trial court admitted the
testimony of Officer Douglas Ventre, even though he was not on the prosecution’s list of witnesses
disclosed in discovery. The Report concluded this claim was barred by procedural default
because it had not been raised on direct appeal. The Report also concluded the claim was without
merit because the trial judge had offered a continuance if needed and, in any event, there is no
constitutional right to disclosure of witness names pre-trial.
English objects that Brady v. Maryland, 373 U.S. 83 (1963) requires this disclosure
(Objections, Doc. No. 19, PageID 2128). Brady, however, requires the disclosure of exculpatory
evidence, and Ventre’s testimony was strongly inculpatory. English relies on Ohio R. Crim. P. 16
which requires pre-trial disclosure of expected witnesses, but not every requirement of state
procedural law is also required by the United States Constitution.

Ground Twelve: Cumulative Error

In his Twelfth Ground for Relief, English claimed that the accumulated errors at trial
deprive him of a fair trial. The Report recommended that claim be dismissed because the
Supreme Court has not recognized cumulative error claims and, in any event, English had not
shown any individual constitutional errors (Report, Doc. No. 15, PageID 2102-2103).
English begins his Objections on this Ground for Relief by citing the proposition that “pro
se litigants are held to less stringent standards than formal pleadings drafted by lawyers.”

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(Objections, Doc. No. 19, PageID 2129, citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972).)
English fundamentally misunderstands the Haines precedent. Pro se pleadings are to be liberally
construed, but that does not mean there is one set of constitutional rights for those who are
represented by counsel and another much more liberal set for those proceeding pro se. To put it
another way, cumulative error is not a constitutional basis for overturning a criminal conviction
whether the claim is made by an attorney or a habeas petitioner proceeding pro se.

Conclusion

Based on the foregoing analysis, it is again respectfully recommended that the Petition be
dismissed with prejudice, that the Petitioner be denied a certificate of appealability, and that the
Court certify any appeal would be objectively frivolous.
October 1, 2012.
s/ Michael R. Merz
United States Magistrate Judge

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