Levingston v. Warden, Warren Correctional Institution
Filing
22
OPINION AND ORDER declining to adopt 14 Magistrate Judge's Report and Recommendation, granting 7 Petitioner's Motion to Stay. Petitioner's petition to be held in abeyance to await the outcome of Petitioner's efforts in state court. The parties will be free to renew their arguments after such time. Signed by Judge S Arthur Spiegel on 9/30/2014. (km1)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARTY LEVINGSTON,
Petitioner,
vs.
WARDEN, WARREN CORRECTIONAL
INSTITUTION,
Respondent.
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NO. 1:12-CV-00724
OPINION AND ORDER
This matter is before the Court on the Magistrate Judge’s
Report and Recommendation (doc. 14), Petitioner’s Objection (doc.
17),
and
Respondent’s
Response
(doc.
20).
For
the
reasons
indicated herein, the Court declines to adopt the Report and
Recommendation and STAYS this matter so that Petitioner may exhaust
his claims prior to the Court ruling on his Petition.
I.
Background
Petitioner was charged with four criminal counts in
January 2008 based on a shooting incident that resulted in the
death of victim Michael Grace (doc. 14).
An eyewitness to the
shooting, Savana Sorrells, initially identified Petitioner as one
of the shooters, but at the hearing on Petitioner’s suppression
motion she stated “she was starting to have doubts” about her
identification
of
Petitioner.”
(Id.).
The
prosecution
also
elicited the testimony of Robert Taylor a “jailhouse snitch” who
claimed he heard Petitioner confess through an air duct in the jail
(doc. 17).
A jury ultimately found Petitioner guilty as charged
(doc. 14).
Prior to sentencing, Petitioner filed a motion for new
trial based on newly-discovered evidence in the form of another
eyewitness to the shooting, Suriyah Dukes, who stated she was
“absolutely positive [Petitioner] was not one of the shooters”
(Id.).
After a hearing regarding such motion, the trial court
denied Petitioner a new trial, and issued findings of fact and
conclusions of law in support of its decision (Id.).
It found the
testimony of Dukes was cumulative, and that she lacked credibility
for previously having lied to the police that she had seen nothing
(doc. 10).
The court ultimately sentenced Petitioner to an
aggregate term of thirty-one years to life (doc. 14).
Petitioner obtained new counsel, a public defender, and
timely appealed to the Ohio Court of Appeals (Id.).
His appeal
included eight assignments of error, including the proposition that
the trial court erred in overruling the motion for a new trial
(Id.).
The appellate court overruled seven of the assignments of
error and sustained the second assignment of error challenging the
court’s failure to merge the murder and felonious assault offenses
as allied offenses of similar import (Id.).
However, the court
affirmed the trial court in all other respects (Id.).
Petitioner,
with his appellate counsel, filed an appeal to the Ohio Supreme
Court,
which
the
high
court
denied
“as
not
involving
any
substantial constitutional question” (Id.).
On remand to the trial court, the murder offense charged
in Count 2 and the felonious assault charge in Count 3 were merged
2
with the murder offense charged in Count 1 (Id.).
As a result
Petitioner’s sentence was modified to an aggregate term of twentythree years to life (Id.).
After Petitioner was resentenced, he filed a pro se
motion to reopen his appeal with the Ohio Court of Appeals,
pursuant to Rule 26(B).
Petitioner claimed his appellate counsel
was ineffective for failing to assert as an assignment of error
that his trial counsel was ineffective for failing to secure Dukes’
testimony at trial (Id.). The court of appeals denied such motion.
Petitioner appealed to the Ohio Supreme Court, contending “[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.).
the
appeal
“as
not
involving
The court summarily dismissed
any
substantial
constitutional
question” (Id.).
Petitioner, now an inmate at the Warren Correctional
Institution in Lebanon, Ohio, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2244, with assistance of new Counsel
(doc. 1).
Immediately after filing the petition, Counsel filed a
petition for post-conviction relief in state court.
Counsel now
requests that habeas proceedings be stayed pending the exhaustion
of the asserted claims in state court (doc. 7).
The
Magistrate
Judge
has
issued
a
Report
and
Recommendation concluding Petitioner should not be granted a stay
3
(doc. 14).
The parties have responded (docs. 17, 20), such that
this matter is ripe for the Court’s consideration.
II.
Discussion
Petitioner’s Petition raises fourteen grounds for relief
(doc. 1).
Petitioner has not exhausted his state remedies as to
Grounds One, Two, Three, Five and Ten, and may have not fairly
presented Grounds Four, Eight, Nine, Eleven, Twelve, Thirteen and
Fourteen as federal constitutional claims (doc. 10).
It is for
these reasons Petitioner seeks a stay of this matter, based on
theories of ineffective assistance of counsel, so that the Court
might ultimately reach the merits of his claims.
The
general
rule
is
that
ineffective
assistance
of
counsel in state post-conviction collateral proceedings cannot
serve as cause for procedural default.
Coleman v. Thompson, 501
U.S. 722 (1991)(as there is no constitutional right to an attorney
in state-post conviction proceeding, a petitioner cannot claim
constitutionally
proceedings).
ineffective
However, in
assistance
of
counsel
in
such
Martinez v. Ryan, 132 S.Ct 1309
(2012), the Supreme Court carved out an exception to Coleman,
allowing post-conviction counsel’s ineffectiveness to establish
“cause” to excuse procedural default of an ineffective-assistance
of trial counsel claim in states where post-conviction proceedings
present the defendant’s first opportunity to raise such a claim.
132 S.Ct at 1320.
In Trevino v. Thaler, the Court, considering
Texas law, held that the same concerns are present, and therefore
4
Martinez applies, when a state’s “procedural framework, by reason
of design and operation, makes it highly unlikely in a typical case
that a defendant will have a meaningful opportunity to raise a
claim of ineffective assistance of trial counsel on direct appeal.”
133 S.Ct 1911 at 1921 (2013).
The Sixth Circuit has found the
application of Trevino to Ohio “neither obvious nor inevitable,”
McGuire v. Warden, 738 F.3d 741 (6th Cir. 2013), but suggested
without holding that Trevino might apply in Ohio cases which
required ineffective assistance of trial counsel claims be brought
Id. at 751.
in post-conviction proceedings.
In their briefing the parties devote substantial argument
as to whether Martinez and Trevino have “provided a new path” for
Petitioner to overcome the claimed procedural bars to review of his
habeas grounds for relief.
The Magistrate Judge answered the
question in the negative, finding that Petitioner has neither
pursued post-conviction relief or other collateral review relief in
the state courts nor obtained the services of counsel to represent
him in such a proceeding.
Counsel for Petitioner indicates he has
now filed a petition for post-conviction relief, and that he is
providing his services pro bono.
In the Court’s view, its role at this point is to arrive
at a determination whether the facts of this case militate toward
the grant of a stay.
In Rhines v. Weber, 544 U.S. 269 (2005), the
Supreme Court emphasized that stay and abeyance should only be
available in “limited circumstances.”
Id. at 277.
The limitation
on federal court authority to issue such stays in habeas corpus
5
proceedings derives from the need to preserve the finality of state
court judgments and encourage prompt exhaustion of state court
remedies.
Id. at 276-77.
To justify a stay the federal court
must find that petitioner has shown “good cause” for his failure to
exhaust his claims, that the claims are potentially meritorious,
and that petitioner did not engage in “intentionally dilatory
Id. at 278.
litigation tactics.”
Petitioner here contends that his ineffective counsel on
appeal is the reason for his failure to have exhausted his claims
of ineffective trial counsel—-that are premised on the theory that
trial counsel neglected to present testimony of an exonerating
eyewitness,
and
that
of
an
alibi
witness.
As
Petitioner’s
ineffective assistance of counsel claims are such that require
evidence beyond the trial record, they are of the variety that
arguably fall within the ambit of Trevino.
The Court understands
that the Sixth Circuit has left the door open to such potential
claims as to Ohio petitioners.
Trevino
federal
court
established
can
find
McGuire, 738 F.3d at 751.
a
four-part
“cause”
thus
test
excusing
under
a
which
a
Defendant’s
procedural default: 1) the claim of “ineffective assistance of
trial counsel” was “substantial;” 2) the “cause” consisted of there
being “no counsel” or only “ineffective counsel” during the state
collateral
review
proceeding;
3)
the
state
collateral
review
proceeding was the “initial” review proceeding in respect to the
“ineffective-assistance-of-trial-counsel claim”; and 4) the state
procedural system does not offer most defendants a meaningful
6
opportunity to present a claim of ineffective assistance of trial
counsel on direct appeal.
133 S.Ct. 1918-21.
Here, the Court
finds that Petitioner has raised substantial claims that his trial
counsel
neglected
testimony,
if
exonerated him.
to
investigate
believed
by
the
and
proffer
jury,
could
witnesses
have
whose
potentially
Petitioner had no counsel when he filed his own
Ohio R. App. P.26(B) motion, which for purposes of Ohio law
constitutes a collateral post-conviction challenge.
Morgan v.
Eads, 104 Ohio St. 3d 142, 818 N.E.2d 1157 (Ohio 2004).
Petitioner was pro se and made a good faith attempt to appeal the
question that his trial counsel failed to elicit Dukes’ testimony
at trial.
There is no evidence of dilatory action.
Petitioner’s
claims of ineffective trial counsel are such that they require
evidence beyond the trial record, and thus could only be raised on
collateral review.
The Court finds that it is a stretch to extend Trevino to
Petitioner’s remaining claims, but that it would not appear to be
in the interests of justice to bar their review.
Petitioner
asserts the only evidence linking him to the shooting was a
“incentivized jail-house snitch” and Sorrells who recanted her
identification.
Petitioner
never
had
a
Court
examine
his
constitutional claims, in part because he either lacked counsel (as
for
his
Rule
26(B))
or
because
his
counsel
ineffective in failing to assert such claims.
may
have
been
Under such “limited
circumstances” the Court finds good cause for the issuance of a
stay as to these potentially meritorious claims.
7
Proper Notice has been given to the parties under 28
U.S.C. § 636(b)(1)(C), including notice that the parties would
waive further appeal if they failed to file objections to the
Report and Recommendation in a timely manner.
United States v.
Walters, 638 F.2d 947 (6th Cir. 1981).
Having reviewed this matter de novo pursuant to 28 U.S.C.
§ 636, the Court finds Petitioner’s motion well-taken.
the
Court
at
this
juncture
is
not
ruling
on
the
In short,
merits
of
Petitioner’s claims, but rather merely holding the Petition in
abeyance so as to await the outcome of Petitioner’s efforts in
state court.
The parties will be free to renew their arguments
after such time.
Accordingly, the Court DECLINES to ADOPT the
Magistrate Judge’s Report and Recommendation (doc. 14), and GRANTS
Petitioner’s Motion for Stay (doc. 7).
SO ORDERED.
Dated: September, 30, 2014
s/S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
8
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