Levingston v. Warden, Warren Correctional Institution

Filing 14

REPORT AND RECOMMENDATIONS re 7 MOTION to Stay Habeas Corpus Proceedings Pending Exhaustion of Ineffective Post-Conviction Counsel and Corresponding Constitutional Claims filed by Marty Levingston: that motion be DENIED. Objections to R&R due by 8/19/2013. Signed by Magistrate Judge Stephanie K. Bowman on 8/2/13. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARTY LEVINGSTON,
Petitioner,

Case No. 1:12-cv-724

Spiegel, J.
Bowman, M.J.

vs

WARDEN, WARREN
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND
RECOMMENDATION

Petitioner, an inmate in state custody at the Warren Correctional Institution in Lebanon,
Ohio, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with the
assistance of counsel. (Doc. 1). This matter is before the Court on petitioner’s motion to stay
and hold the petition in abeyance while petitioner exhausts “ineffective post-conviction counsel
and corresponding claims” by way of a post-conviction petition in the state courts. (Doc. 7).
Respondent has filed a return of writ and brief opposing the motion for stay. (Docs. 10, 11).
Petitioner has filed a brief in reply to respondent’s opposition memorandum. (Doc. 13).
I. PROCEDURAL BACKGROUND
State Trial Proceedings
In January 2008, the Hamilton County, Ohio, grand jury returned a four-count indictment
against petitioner and a co-defendant based on a shooting incident that resulted in the death of
victim Michael Grace. Petitioner was charged with two counts of murder in violation of Ohio
Rev. Code § 2903.02(A); one count of felonious assault in violation of Ohio Rev. Code §
2903.11(A)(2); and one count of tampering with evidence in violation of Ohio Rev. Code §
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2921.12(A)(1). Firearm specifications were attached to each count. (Doc. 10, Ex. 1).
Prior to trial, petitioner’s counsel filed a motion to suppress identification testimony and
opposed the State’s motion requesting that the court call Savana Sorrells, an eyewitness to the
shooting, as a trial witness subject to cross-examination by all parties. (Id., Exs. 4, 10). It
appears from the record that although Sorrells initially identified petitioner as one of the shooters
to both the police and prosecuting attorneys, at the hearing held on petitioner’s suppression
motion, she changed her testimony, stating for the first time that she was “starting to have
doubts” about her identification of petitioner. (See Doc. 10, Tr. 90 & Ex. 9, pp. 2-4). The trial
court denied petitioner’s suppression motion and granted the State’s motion to call Sorrells as a
trial witness with the caveat that “[t]he jury will not be aware that the court is calling this witness
per the request of the Defendants.” (Id., Exs. 9, 12). The matter then proceeded to trial before a
jury, which found petitioner guilty as charged. (Id., Ex. 13).
Prior to sentencing, petitioner filed a motion for new trial based on newly discovered
evidence in the form of an eyewitness to the shooting, Suriyah Dukes, who stated in an
accompanying affidavit that she was “absolutely positive [petitioner] was not one of the
shooters.” (See id., Ex. 14). Following a hearing in open court, the trial court denied petitioner’s
motion for new trial and issued findings of fact and conclusions of law in support of its decision.
(Id., Ex. 16).
On April 3, 2009, the court sentenced petitioner to an aggregate prison term of thirty-one
(31) years to life, which consisted of the following consecutive terms of imprisonment: fifteen
(15) years to life on one of the murder counts (Count 1); three (3) years on one of the firearm
specifications attached to Count 1; eight (8) years on the felonious assault count; and five (5)

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years on the tampering with evidence charge. (Id., Ex. 19).1
State Appeal Proceedings
With the assistance of new counsel from the Hamilton County Public Defender’s Office,
petitioner timely appealed to the Ohio Court of Appeals, First Appellate District. (Doc. 10, Ex.
20). In the appellate brief filed by counsel on petitioner’s behalf, petitioner presented eight
assignments of error:
1. The trial court erred in overruling the motion to suppress identification.
2.

The trial court erred in sentencing the appellant to consecutive sentences of
murder and felonious assault.

3. The trial court erred in overruling the motion for new trial.
4. The trial court erred in failing to grant the motion for mistrial and motion to
strike testimony.
5. The defendant’s right to a fair trial and due process were denied due to
prosecutorial misconduct.
6.

The trial court erred in instructing the jury that they could consider the
testimony of Detective Thompson regarding Savana Sorrell’s statement as
substantive evidence.

7. The trial court erred in not instructing the jury as to viewing the testimony of a
witness/informer scrupulously and with grave suspicion.
8. The verdicts are contrary to law as they are not supported by evidence beyond
a reasonable doubt.
(Id., Ex. 21).
On April 8, 2011, the Ohio Court of Appeals issued a decision overruling seven of the
assignments of error and sustaining only the second assignment of error challenging the trial
court’s failure to merge the murder and felonious assault offenses as allied offenses of similar

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It is noted that for sentencing purposes, the trial court merged the murder offense charged in Count 2 with
Count 1 and also merged all of the firearm specifications with the 3-year specification charged in Count 1. (See
Doc. 10, Ex. 19).

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import. (Id., Ex. 23). The court vacated the separate sentences imposed for murder and
felonious assault and remanded the matter “for the imposition of only one sentence for either of
the two offenses.” (Id., p. 9). The court affirmed the trial court’s judgment “[i]n all other
respects.” (Id.).
With the assistance of his appellate counsel, petitioner perfected a timely appeal to the
Ohio Supreme Court. (Id., Ex. 24). In the memorandum in support of jurisdiction filed by
counsel on petitioner’s behalf, petitioner asserted two propositions of law:
1.

Where the trial court instructs the jury that it consider the testimony of a
court’s witness for purposes of credibility only but the hearsay testimony of
the same witness as substantive evidence a defendant’s right to a fair trial
under the Fifth and Fourteenth Amendments to the United States Constitution
and Article 1 Section 10 of the Ohio Constitution is violated.

2. Where the prosecutor introduces evidence not provided in discovery contrary
to the order of the court the misconduct of the prosecution permeates the trial
so as to deprive the defendant of a fair trial and due process.
(Id., Ex. 25). On September 21, 2011, the Ohio Supreme Court denied petitioner leave to appeal
and summarily dismissed the appeal “as not involving any substantial constitutional question.”
(Id., Ex. 27).
Resentencing On Remand
On May 18, 2011, petitioner was resentenced in accordance with the Ohio Court of
Appeals’ remand order. (Doc. 10, Ex. 28). Specifically, both the murder offense charged in
Count 2 and felonious assault offense charged in Count 3 were merged with the murder offense
charged in Count 1. (Id.). Petitioner was sentenced to an aggregate prison term of twenty-three
(23) years to life, which consisted of the following consecutive terms of imprisonment: fifteen
(15) years to life on Count 1; three (3) years on one of the firearm specifications attached to
Count 1; and five (5) years for the tampering with evidence offense charged in Count 4. (Id.).

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Petitioner did not pursue an appeal from the resentencing decision in the state courts.
Rule 26(B) Application For Reopening Of The Appeal
On July 5, 2011, after he was resentenced and while his appeal was pending before the
Ohio Supreme Court, petitioner filed a pro se motion to reopen his appeal with the Ohio Court of
Appeals, First Appellate District. (Doc. 10, Ex. 29). In the application filed pursuant to Ohio R.
App. P. 26(B), petitioner claimed that his appellate counsel was ineffective for failing to assert as
an assignment of error that petitioner’s trial counsel was ineffective for failing to take “the
necessary steps” to secure the favorable eyewitness testimony of Suriyah Dukes at trial. (Id.).
On January 26, 2012, the Ohio Court of Appeals denied petitioner’s reopening
application on the ground that petitioner had “failed to demonstrate a genuine issue as to whether
he has a colorable claim of ineffective assistance of appellate counsel.” (Id., Ex. 32).
Petitioner appealed to the Ohio Supreme Court, claiming as the sole proposition of law
that “[a]n accused is denied his Sixth Amendment right to the effective assistance of counsel on
appeal, when counsel fails to assign as error trial counsel’s failure to secure meaningful
eyewitness testimony which was apparent before trial and may establish the accused’s actual
innocence.” (Id., Exs. 33-34).
On May 9, 2012, the Ohio Supreme Court summarily dismissed the appeal “as not
involving any substantial constitutional question.” (Id., Ex. 35).
Federal Habeas Corpus Petition
With the assistance of new counsel, petitioner filed the instant petition for federal habeas
relief on September 21, 2012. (See Doc. 1). In the petition, petitioner presents the following
grounds for relief:
Ground One: Petitioner was denied his right to the effective assistance of
counsel under the Sixth and Fourteenth Amendments to the United States
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Constitution, by the failures of his trial counsel to reasonably investigate and
obtain eye witness testimony which would have exonerated Petitioner.
Supporting Facts: One of the state’s primary “witnesses” was a young woman
named Savana Sorrells. Ms. Sorrells testified that she was not able to identify
Petitioner as the perpetrator. During trial, Ms. Sorrells testified that her cousin
Suriyah Dukes had also been present in the residence and had witnessed the
shooting. Trial counsel had failed to conduct a reasonable investigation regarding
Ms. Dukes as a potential witness and to obtain her highly exculpatory testimony
at trial. In affidavit obtained from Ms. Dukes post-trial, she clearly exonerated
Petitioner as having not been involved in the shooting. . . .
Ground Two: Petitioner was denied his right to the effective assistance of
counsel under the Sixth and Fourteenth Amendments to the United States
Constitution by the failure of his trial counsel to reasonably investigate and obtain
eyewitness testimony that would have provided an alibi defense for Petitioner at
trial.
Supporting Facts: Prior to trial, Petitioner informed trial counsel that at the time
of the shooting, he was at his mother’s residence, at which his mother was present
at the time. Despite this knowledge, trial counsel failed to call this alibi witness
to testify.
Ground Three: Petitioner was denied his right to the effective assistance of
appellate counsel under the Sixth and Fourteenth Amendments to the United
States Constitution, by the failures of his appellate counsel to pursue a petition for
post conviction relief.
Ground Four: Petitioner was denied his right to due process of law under the
Fourteenth Amendment to the United States Constitution by the entry of judgment
of convictions against him in the absence of proof beyond a reasonable doubt that
Petitioner was the person who committed those offenses.
Ground Five: Petitioner’s rights to due process and against cruel and unusual
punishment as secured by the Fifth, Eighth, and Fourteenth Amendments to the
United States Constitution have been violated by his conviction and incarceration
for an offense of which he is actually innocent.
Grounds Six/Seven: Petitioner was denied his rights to a fair trial and due
process under the Fifth, Sixth and Fourteenth Amendments to the United States
Constitution by the use of an unduly suggestive photographic identification, the
results of which were introduced at trial.
Grounds Eight/Nine: Petitioner was denied his rights to a fair trial and due
process under the Fifth, Sixth and Fourteenth Amendments to the United States
Constitution when the trial court denied Petitioner’s motion for a new trial on the
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basis of newly discovered evidence.
Ground Ten: Petitioner was denied due process under the Fifth and Fourteenth
Amendments to the United States Constitution by the commission of prosecutorial
misconduct by the Hamilton County Prosecutor’s Office.
Supporting Facts: . . . Petitioner became aware for the first time at trial of the
existence of an eyewitness whose testimony would exculpate Petitioner. The
State never disclosed the existence of this evidence to Petitioner or his counsel,
despite its clear obligation to do so under Brady v. Maryland, 373 U.S. 83 (1963),
and Kyles v. Whitley, 514 U.S. 419 (1995). The State also failed to disclose that a
jailhouse snitch was highly incentivized through a plea agreement and was
testifying in multiple cases in Hamilton County. Such evidence, had it been
introduced at trial, would have significantly damaged the snitch’s credibility. In
addition, the prosecutor sought to use evidence which had been excluded by the
trial court. The prosecutor further introduced inadmissible and inappropriate
evidence regarding Levingston’s alleged gang affiliation in an effort to inflame
[and] improperly influence the jury.
Grounds Eleven/Twelve: Petitioner was denied a fair trial and due process
under the Fifth, Sixth and Fourteenth Amendments to the United States
Constitution when the trial court instructed the jury to consider a witness’s taped
statement, which the witness had recanted prior to trial, as well as a law
enforcement officer’s testimony regarding the statement as substantive evidence
against Petitioner.
Supporting Facts: The State called Savana Sorrells to testify against Petitioner.
Although, after being shown a single photograph, Sorrells had identified
Petitioner as one of the two individuals involved in the commission of the crimes
…, Sorrells recanted this identification prior to trial. The trial court instructed the
jury that the testimony of both Sorrells and the law enforcement officer who
witnessed the “identification” could be considered not just as impeachment
evidence against Petitioner, but as substantive evidence of his guilt.
Grounds Thirteen/Fourteen: Petitioner’s rights to a fair trial and due process
under the Fifth, Sixth and Fourteenth Amendments to the United States
Constitution were violated when the trial court refused to instruct the jury to view
the testimony of an incentivized snitch with “grave suspicion.”
(Doc. 1, pp. 6-10).
Thereafter, before respondent filed a return of writ responding to the petition, petitioner
filed a motion to stay and hold the petition in abeyance while he “litigates a post-conviction
petition” in the state courts raising “ineffective assistance of post-conviction counsel and
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corresponding constitutional claims” arising from “the recantation of the sole eyewitness against
Petitioner and the discovery, during trial, of an eyewitness that exonerated him.” (Doc. 7).
Respondent has filed both a return of writ and a brief opposing petitioner’s motion for stay.
(Docs. 10, 11). In the return of writ, respondent argues that petitioner procedurally defaulted and
has waived the claims alleged in Grounds One through Four, Grounds Seven through Nine, parts
of Ground Ten, and Grounds Thirteen through Fourteen of his federal habeas petition. (Doc. 10,
Brief, pp. 14-27). In the memorandum submitted in opposition to petitioner’s motion for stay,
respondent contends that a stay is not warranted because petitioner’s claims “are procedurally
defaulted, without merit or non-cognizable in a federal habeas proceeding.” (Doc. 11, p. 2).
Petitioner has filed a reply brief in response to respondent’s opposition memorandum. (Doc. 13).
II. OPINION
In his motion for stay, petitioner requests that the instant action be held in abeyance so
that he can return to the state courts to pursue a “new path for relief,” which he claims was
recently created by the Supreme Court in Martinez v. Ryan,

U.S.

, 132 S.Ct. 1309 (2012), for

the purpose of overcoming any procedural bars to review of his habeas claims. (See Doc. 7).
Although it is unclear what new claims petitioner plans to exhaust in the state courts at this late
juncture, it appears that petitioner would like to file a petition for post-conviction relief alleging,
as he has claimed in Ground Three of the petition, that his appellate counsel was ineffective for
failing to pursue the available state post-conviction remedy “as a vehicle to introduce new
evidence” and for failing to raise “numerous constitutional claims (on either direct appeal or in a
collateral proceeding).” (Id., p. 7; see also Doc. 1, p. 6). In the brief submitted in opposition to
petitioner’s motion, respondent points out that under Ohio law, “[a]n accused may not use a postconviction petition to raise a claim of ineffective assistance of his or her appellate counsel.”

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(Doc. 11, p. 6).
The undersigned is not persuaded that the Supreme Court’s Martinez decision applies
here to create “a new path” that petitioner may pursue to overcome the claimed procedural bars
to review of his federal habeas grounds for relief. In Martinez, 132 S.Ct. at 1315, the Supreme
Court held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may
establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.”
Here, in contrast to Martinez, petitioner has neither pursued post-conviction or other collateral
review relief in the state courts nor obtained the services of counsel to represent him in such a
proceeding.
Apparently, it is petitioner’s position that petitioner’s counsel on direct appeal also served
to advise petitioner about the availability of the state post-conviction remedy and to pursue state
post-conviction relief on petitioner’s behalf. However, the two state-court avenues of relief are
totally separate remedies. The only role of appellate counsel is to represent persons convicted of
criminal offenses on direct appeal to the Ohio Court of Appeals. The role does not include
serving as counsel for the defendant with respect to a post-conviction proceeding before the trial
court. Petitioner has already exhausted the only available avenue of relief in Ohio for
challenging the effectiveness of his appellate counsel by filing a Rule 26(B) application for
reopening of his appeal. (See Doc. 10, Exs. 29-35). Moreover, as respondent has pointed out, it
is well-settled in Ohio that ineffective assistance of appellate counsel claims are not cognizable
in post-conviction proceedings brought pursuant to Ohio Rev. Code § 2953.21. See, e.g.,
Morgan v. Eads, 818 N.E.2d 1157, 1158 (Ohio 2004) (discussing State v. Murnahan, 584 N.E.2d
1204 (Ohio 1992)). Therefore, because no procedural default happened in a state postconviction proceeding where petitioner was represented by counsel, petitioner cannot prevail on

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his argument that a stay is warranted because a “new” state post-conviction remedy created by
the Supreme Court’s Martinez decision is available for him to pursue a claim of “cause” for any
procedural default that occurred in this case.
Accordingly, it is RECOMMENDED that petitioner’s motion for stay (Doc. 7) be
DENIED.

/s/ Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARTY LEVINGSTON,
Petitioner
vs

Case No. 1:12-cv-724
Spiegel, J.
Bowman, M.J.

WARDEN, WARREN
CORRECTIONAL INSTITUTION,
Respondent
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period 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 of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the 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 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
cbc

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