Williams v. Warden, Warren Correctional Institution
Filing
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REPORT AND RECOMMENDATIONS - re 3 - Petitioner Williams procedurally defaulted on his Confrontation Clause claims when he failed to fairly present them to the Ohio courts. Even if those claims had been preserved fordecision on the merits in this Co urt, they should be dismissed with prejudice because there was no violation of Petitioners Confrontation Clause rights. Because these conclusions would not be debatable among reasonable jurists, Petitioner should be denied a certificate of appealability and this Court should certify to the Sixth Circuit that any appeal would be objectively frivolous. Objections to R&R due by 8/9/2012. Signed by Magistrate Judge Michael R Merz on 7/23/12. (kje1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
CHARLES WILLIAMS,
:
Petitioner,
Case No. 1:11-cv-696
:
District Judge S. Arthur Spiegel
Magistrate Judge Michael R. Merz
-vsMIKE SHEETS, Warden, Warren
Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
Petitioner Charles Williams brings this habeas corpus action pro se under 28 U.S.C. § 2254
to obtain relief from his conviction in the Hamilton County Common Pleas Court on three counts
of murder with firearm specifications and one count of having weapons under disability. He
pleads the following grounds for relief:
Ground One: Petitioner was denied a fair trial when the trial court
erred permitting the “state of mind” exception to the hearsay rule,
set forth in Fed. Rule 803(3), should be limited to situations where
the act performed was relevant to the ultimate issue in the case
violating the Sixth Amendment rights.
Supporting Facts: In this case, whether or not Mr. Tate engaged
in sexual conduct that night was not relevant to whether Appellant
shot him. The hearsay statement was used improperly to infer that
another offered sex as a means to lure Mr. Tate into a robbery
situation.
Ground Two: The trial court erred violating Petitioner’s right to
Due process under the Fifth and Fourteenth Amendment[s] allowing
an out of court statement into evidence pursuant to Evid. R. 803(1),
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the party must establish when the perceived event occurred, when
the statement was made in relation to the perceived event and that
the statement was otherwise trustworthy.
Supporting Facts: [T]he question that Appellant raises here are
how close must the statement be to the perceived event in order to fit
within this exception and what qualifies as a lack of trustworthiness.
Does “immediately thereafter” mean within seconds or minutes?
Does it have to be within five minutes or more or less? Does it
have to be within five minutes or more or less? [Sentence repeated
in the original at PageID 38.] Within guidance as to the time frame,
how is a trial court able to determine whether a statement falls
within this exception?
Ground Three: The State must be required to make a prima facie
showing of a conspiracy, as defined by RC 2923.01, by means other
than that of the witness’ testimony before the trial court can permit
the introduction of an out of court statement pursuant to Evid. R.
801(D)(2)(e).
Supporting Facts: In this case, the trial court permitted the
co-defendant, Mr. Wright, to testify as to statements made by
“Junior” concerning an alleged robbery. Specifically, Mr. Wright
testified that “Junior” told him there was going to be a robbery, and
Mr. Wright was supposed to be the “lookout.”
Ground Four: The trial court violated Petitioner’s due process
rights under the Fifth and Fourteenth Amendment[s] when it must
limit the scope of our of court statements admitted, pursuant to Evid.
R. 801(D)(1)(b), to situations where there has been an actual charge
of recent fabrication or improper influence or motive and limited to
just consistent statements necessary to rebut the alleged motive or
charge.
Supporting Facts: In this case, the trial court permitted Ms.
Russell to testify as to statements made to her by Mr. Wright. She
testified that Mr. Wright told her that “dude got shot,” which was
apparently used by the State to show that Mr. Wright witnessed the
event. Most importantly, though, was the fact that the statements
that were permitted into evidence were NOT consistent with Mr.
Wright’s testimony nor were they used for the purpose of rebutting
the fabrication or improper influence.
(Petition, Doc. No. 3.)
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Procedural History
Williams was indicted by the Hamilton County grand jury on three counts of murder with
firearm specifications and one count of having weapons under disability, all arising from the
shooting death of Cedric Tate. The case was tried to a jury and Williams was convicted on all
counts. The trial judge merged the murder counts and the firearm specifications under Ohio
Revised Code § 2941.25 and sentenced Petitioner to fifteen years for murder, three years
consecutive for the firearms specification, and three further years consecutive for the weapons
under disability conviction. Williams appealed to the Hamilton County Court of Appeals which
upheld the conviction. The Ohio Supreme Court declined a further appeal and Williams filed his
Petition in this Court.
Procedural Default
Respondent asserts that all four of Williams’ Grounds for Relief were procedurally
defaulted by his failure to fairly present them as constitutional claims in the state courts (Return of
Writ, Doc. No. 8, PageID 60-64). Petitioner responds “In the case at bar, although Petitioner has
presented his Confrontation Clause grounds for relief (Grounds 1-4) as state law evidentiary
issues, it is obvious that Petitioner was attempting to raise these claims in a constitutional manner.”
(Response to Return of Writ, Doc. No. 12, PageID 875). Petitioner does not mention the
Confrontation Clause or the Sixth Amendment in his Petition; all his constitutional references are
to the Due Process Clause of the Fifth and Fourteenth Amendments. However, Petitioner
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reminds the Court of our obligation to construe pro se pleadings liberally. Accordingly, the Court
will analyze the Petition as raising Confrontation Clause claims.
Although the relevant case law (e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and
Estelle v. Gamble, 429 U.S. 97, 106 (1976)) requires us to construe liberally pleadings filed in this
Court, an entirely different body of law applies to reading what was filed in the state courts. To
preserve a constitutional issue for habeas consideration, a state court defendant must have “fairly
presented” that claim to the state courts in a way which provides them with an opportunity to
remedy the asserted constitutional violation, including presenting both the legal and factual basis
of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d
1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by
Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790 (6th Cir. 1991).
The claim must be fairly presented at every stage of the state appellate process. Wagner v. Smith,
581 F.3d 410, 418 (6th Cir. 2009).
A state prisoner ordinarily does not ‘fairly present’ a federal claim to a state court if that
court must read beyond a petition, a brief, or similar papers to find material that will alert it to the
presence of such a claim. Baldwin v. Reese, 541 U.S. 27 (2004).
A petitioner fairly presents a federal habeas claim to the state courts only if he “asserted
both the factual and legal basis for his claim. Hicks v. Straub, 377 F.3d 538 (6th Cir. 2004), citing
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); and Picard v. Connor, 404 U.S. 270, 276,
277-78 (1971).
In determining whether a petitioner "fairly presented" a federal
constitutional claim to the state courts, we consider whether: 1) the
petitioner phrased the federal claim in terms of the pertinent
constitutional law or in terms sufficiently particular to allege a
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denial of the specific constitutional right in question; 2) the
petitioner relied upon federal cases employing the constitutional
analysis in question; 3) the petitioner relied upon state cases
employing the federal constitutional analysis in question; or 4) the
petitioner alleged "facts well within the mainstream of [the
pertinent] constitutional law."
Hicks at 552-53, citing McMeans, 228 F.3d at 681.
The Court reviews first Appellant’s Brief on direct appeal (Return of Writ, Doc. No. 8, Ex.
6, PageID 87-100). The questions sought to be presented here were raised in Williams’ First
Assignment of Error, which reads “[t]he trial court erred by permitting witnesses to testify as to
statements made by the decedent.” Williams cited to Ohio R. Evid. 801(C), 804(3), 803(1), and
805 and to State v. Craig, 130 Ohio App. 3d 639 (Ohio App. 1st Dist, 1998), and State v. Brown,
2006-Ohio-4594 (Ohio App. 10th Dist. Sept. 7, 2006). The argument is entirely in terms of Ohio’s
hearsay rules; no mention is made of the Confrontation Clause, the Sixth Amendment, or even the
United States Constitution.
Petitioner’s counsel cited no federal case law at all, but only two state cases. In State v.
Craig, supra, the first state case cited, the Hamilton County Court of Appeals found that an Ohio
defendant facing revocation of community control, the Ohio analogue to federal probation, has a
Fourteenth Amendment right to confront his accuser at the revocation hearing, relying on
Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973). Craig
was decided six years before Crawford v. Washington, 541 U.S. 36 (2004), the case which
represents a major change in Confrontation Clause law at the Supreme Court level.
In Brown, supra, the Tenth District Court of Appeals applied Crawford. It held that the
defendant in that case had forfeited his Confrontation Clause rights by causing the unavailability
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of the out-of-court declarant by killing him. Although Crawford was applied, the principal point
of the case was deciding the Ohio hearsay questions presented.
Thus neither the argument made in support of the First Assignment of Error nor the cases
cited would have alerted the First District Court of Appeals that Williams was presenting a
Confrontation Clause question to them. Nor did the Court of Appeals understand it was being
presented with a Confrontation Clause question. It decided the First Assignment of Error entirely
in terms of Ohio evidence law and whether the trial judge abused his discretion in admitting the
contested statements, without citing the Confrontation Clause, the Sixth Amendment, or the
United States Constitution (Judgment Entry, Return of Writ, Doc. No. 8, Ex. 8, PageID 125-129).
Nor did Petitioner’s appellate counsel believe she had submitted a Confrontation Clause
question which went unanswered: she prepared Mr. Williams appeal to the Ohio Supreme Court
and did not mention the Constitution. In fact, her statement as to why this was a case of public or
great general interest was that trial courts across the State were not properly applying the hearsay
rules for lack of a definitive ruling from the Ohio Supreme Court (Memorandum in Support of
Jurisdiction, Return of Writ, Doc. No. 8, Ex. 10, PageID 136-137).
Based on this analysis, the Magistrate Judge concludes that Petitioner’s Confrontation
Clause claims were not fairly presented to the Ohio courts and therefore are procedurally defaulted
so that this Court cannot reach the merits of those claims.
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Alternative Merits Analysis
In the alternative, were the Court to reach the merits, it should conclude that Petitioner’s
Confrontation Clause rights were not violated by the admission of the evidence of which he
complains.
The Supreme Court has held that the Confrontation Clause bars “admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable to testify, and the
defendant has a prior opportunity for cross-examination..” Crawford, 541 U.S. at 53-54.
The Crawford rule requires distinguishing between testimonial and non-testimonial
statements; the Confrontation Clause applies only to the former category. It does not, for
example, bar admission of identifying hearsay testimony from a 911 operator because the caller’s
statements to the operator are not testimonial, but instead seek help in a current emergency.
However, a victim’s statements about completed events to police who respond to a 911 call are
testimonial and therefore inadmissible. Davis v. Washington, 547 U.S. 813 (2006).
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial when the
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
Id., at 822.
To determine whether a statement is testimonial, the Sixth Circuit applies the following
test:
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The proper inquiry, then, is whether the declarant intends to bear
testimony against the accused. That intent, in turn, may be
determined by querying whether a reasonable person in the
declarant's position would anticipate his statement being used
against the accused in investigating and prosecuting the crime.
United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004).
The first testimony complained of is Rhonda Wynn’s testimony that, while she was with
the victim, she heard him say to someone on his cell phone that he was meeting a man in Bond Hill
for sex that night. The second testimony complained of is that of Frankie Coleman to whom Tate
said that the man he was talking to in Bond Hill wanted $1,000 for a “hook up.”1 Since both of
these happened before the shooting, they are obviously not testimonial.
The third statement was one made by an uncaptured participant in the robbery scheme
named “Junior” to co-defendant Wright. The only argument made about this statement in state
court was that an insufficient foundation had been laid for its admission under the co-conspirator
exception to the hearsay rule. Regardless of the correctness of the state court ruling on that point,
it is plain Junior was not making a testimonial statement when he spoke to Wright.
Finally, Williams objected to Crystal Russell’s testimony about statements made to her by
co-defendant Wright on the grounds that they were not properly characterized as prior consistent
statements. Again, regardless of the correctness of the state court rulings here, the Confrontation
Clause is not applicable because Wright was present in court and testified, subject to
cross-examination.
In sum, Petitioner’s claims construed as made under the Confrontation Clause, are without
merit.
1 A colloquialism for casual sex, usually without money changing hands.
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Conclusion
Petitioner Williams procedurally defaulted on his Confrontation Clause claims when he
failed to fairly present them to the Ohio courts. Even if those claims had been preserved for
decision on the merits in this Court, they should be dismissed with prejudice because there was no
violation of Petitioner’s Confrontation Clause rights. Because these conclusions would not be
debatable among reasonable jurists, Petitioner should be denied a certificate of appealability and
this Court should certify to the Sixth Circuit that any appeal would be objectively frivolous.
July 23, 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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