Mercado v. Warden, Chillicothe Correctional Institution

Filing 11

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the C ourt should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 3/23/2015. Signed by Magistrate Judge Michael R Merz on 3/5/2015. (kpf1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
BISMARK MERCADO,
Petitioner,

:

- vs -

Case No. 1:14-cv-124
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

NORM ROBINSON, WARDEN,
Chillicothe Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se under 28 U.S.C. § 2254, is before the Court for
decision on the merits. The Petition was filed March 6, 2014 (Doc. No. 4). On Magistrate Judge
Bowman’s Order (Doc. No. 5), the Warden has filed a Return of Writ (Doc. No. 8). Judge
Bowman granted the Petitioner twenty-one days after the Return to file a reply (Doc. No. 5,
PageID 45). That time expired June 1, 2014, and no reply has been filed. Thus the case is ripe
for decision.

Procedural History

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Mercado was indicted by a Hamilton County grand jury on one count of trafficking in
cocaine with a major drug offender specification and one count of conspiracy. Having waived a
jury, he was tried to the bench, convicted as charged, and sentence to ten years in prison. On his
first direct appeal, Mercado successfully overturned his conspiracy conviction.

Mercado

appealed further to the Supreme Court of Ohio, but that court declined jurisdiction. Mercado
then filed the instant Petition, raising the following Grounds for Relief:
Ground One: The Ohio State Courts erred in ruling that
Petitioner’s Jury Waiver was voluntary and that it complied with
Ohio Revised Code § Section 2945.05 and Crim. R. 23(A) as well
as Federal Due Process; when the facts support that he did not
clearly understand or speak English nor did he fully understand
that he was waiving his right to a Jury Trial.
Ground Two: The Ohio Courts erred by holding that Petitioner
was guilty of trafficking in cocaine and conspiracy, as those
findings were not supported by sufficient evidence as well as being
against the manifest weight of the evidence; and therefore, contrary
to law.
(Petition, Doc. No. 4.)

Procedural Default of Ground One by Lack of Fair Presentation

Respondent asserts Mercado procedurally defaulted his First Ground for Relief by failing
to present it to the Ohio courts as a federal constitutional claim (Return of Writ, Doc. No. 8,
PageID 52-59). Mercado has not responded to this argument.
To preserve a federal constitutional claim for presentation in habeas corpus, the claim
must be "fairly presented" 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
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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, 792
(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).
“Federal courts do not have jurisdiction to consider a claim in a habeas petition that was
not ‘fairly presented’ to the state courts.” Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2004);
accord, Jacobs v. Mohr, 265 F.3d 407, 415 (6th Cir. 2001); McMeans v. Brigano, 228 F.3d 674,
681 (6th Cir. 2000); Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006); Blackmon v. Booker,
394 F.3d 399, 400 (6th Cir. 2004).
Mercado’s First Assignment of Error on direct appeal reads “Defendant-Appellant’s
waiver of trial by jury was not voluntary and did not strictly comply with R.C. [Ohio Revised
Code] Section 2945.05 and Crim. R. 23(A).” (Appellant’s Brief, Return of Writ, Doc. No. 8-1,
Ex. 6, PageID 89.) The argument in support relies entirely on Ohio case law requiring strict
compliance with Ohio Revised Code § 2945.05. Id. at PageID 93-94. No mention is made of
the United States Constitution; there is no citation to federal authority at all. Id. The decision of
the First District Court of Appeals discusses only Ohio Revised Code § 2945.05 and Ohio R.
Crim. P. 23. State v. Mercado, Case No. C-120114 (1st Dist. Oct. 31, 2012)(unpublished; copy at
Return of Writ, Doc. No. 8-1, Ex. 8, PageID 119 et seq.)
The Court agrees with Respondent that Mercado’s First Ground for Relief is procedurally
defaulted by his failure to fairly present it to the Ohio courts as a federal constitutional claim.

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Ground Two: Insufficient Evidence to Convict

In his Second Ground for Relief, Mercado asserts there was insufficient evidence on
which to convict him and his conviction is against the manifest weight of the evidence. As the
Warden points out, the manifest weight claim is not cognizable in federal habeas corpus, but an
allegation that a verdict was entered upon insufficient evidence states a claim under the Due
Process Clause of the Fourteenth Amendment to the United States Constitution. 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, 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 in
Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (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 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).
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 Renico v. Lett, 559 U. S. ___, ___,
130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
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Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062, (2012)(per curiam).
In arguing this Ground for Relief, Mercado asserts there was no evidence he handled
either the package of cocaine or the duffel bag with the payoff money (Petition, Doc. No. 4,
PageID 35-36). He claims he was neither the owner nor the driver of the truck when the
exchanges took place. Id. Most of his argument on the Second Ground for Relief, however, is
direct to the manifest weight claim, which a federal habeas court cannot consider.
The First District Court of Appeals decision on the sufficiency of the evidence is quite
summary: “We conclude that the state presented adequate evidence on each element of the
offenses. See State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E. 2d 541 (1997).” State v.
Mercado, Case No. C-120114 (1st Dist. Oct. 31, 2012)(unpublished, copy at Return of Writ, Doc.
No. 8-1, Ex. 8, PageID 120). Although the holding is summary, we are still bound to grant it
AEDPA deference. Harrington v. Richter, 562 U.S. 86, ___, 131 S. Ct. 770, 792 (2011).
Thompkins embodies the Jackson v. Virginia, standard, so the First District’s decision is not
contrary to federal law. Finally, the recitation of evidence in the Return of Writ compensates for
the summary First District opinion. See Return of Writ, Doc. No. 8, PageID 70-72. The
evidence recited there shows there was competent evidence on each of the required elements of
the offenses with which Mercado was charged. The Second Ground for Relief is therefore
without merit.

Conclusion

On the foregoing analysis, it is respectfully recommended that the Petition herein be
dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
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Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and therefore should not be permitted to
proceed in forma pauperis.
March 5, 2015.
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(d), this period is 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)(C), (D), (E), or (F). 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 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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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