Williams v. Warden, Pickaway Correctional Institution

Filing 19

REPORT AND RECOMMENDATIONS - re 1 Petition for Writ of Habeas Corpus filed by Gerald R. Williams - It is respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conc lusion, 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. Objections to R&R due by 8/17/2015. Signed by Magistrate Judge Michael R. Merz on 7/31/15. (pb)(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
GERALD R. WILLIAMS,
Petitioner,

:

- vs -

Case No. 1:14-cv-572
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

JEFF LISATH, Warden,
Pickaway Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Gerald R. Williams pursuant to
28 U.S.C. § 2254 to obtain relief from convictions in the Highland County Common Pleas Court
on charges of receiving stolen property, possession of drugs, and possession of criminal tools.
Williams pleads the following Grounds for Relief:
Ground One: Williams was denied his 14th Amendment due
process rights to fully and fairly litigate his 4th Amendment claim
in the state courts.
Ground Two: Williams was denied his 6th and 14th Amendment
rights to the effective assistance of appellate counsel.

(Petition, ECF No. 1.)
Having reviewed the Petition under Habeas Rule 4, Magistrate Judge Bowman ordered
the Respondent to file an answer (ECF No. 5) which Respondent did on November 19, 2014
(ECF No. 11). In her Order for Answer, Judge Bowman set a deadline for Williams to file a
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reply to the Return of twenty-one days after the Return was filed (ECF No. 5, PageID 12).
Despite having requested and received several extensions of time to do so (ECF Nos. 13, 14, 15),
Williams has never filed a reply. Thus the case became ripe for decision when Williams’ last
extension expired on April 15, 2015.

Procedural History

This case arises out of a traffic stop August 21, 2011. Williams was indicted as a result
of the illegal drugs, firearms, and drug trafficking tools found in the car he was driving.
Williams filed a motion to suppress which was successful as to his residence but unsuccessful as
to the car. He then withdrew his not guilty plea and pled no contest. Sentenced to four years
imprisonment, he appealed to the Ohio Fourth District Court of Appeals raising four assignments
of error:
I. "A TRAFFIC STOP MAY NOT EXCEED THE TIME
NECESSARY TO ISSUE A CITATION."
II. "BY ENTERING THE APPELLANT'S CAR THE K-9
EXCEEDED A MERE SNIFF AND BECAME PART OF A
WARRANTLESS SEARCH."
III. "WARRANTS MUST DESCRIBE WITH PARTICULARITY
THE PLACE TO BE SEARCHED." And
IV. "A SENTENCING JUDGE MAY NOT USE MATTERS FOR
WHICH THERE IS NO EVIDENCE ON THE RECORD IN
CONSIDERING SENTENCE."
State v. Williams, 2013-Ohio-594, ¶ 7, 2013 Ohio App. LEXIS 528 (4th Dist. Jan. 30, 2012).1

1

References to State v. Williams, supra, hereinafter are to this opinion.

2

The Fourth District affirmed. Id. Williams missed the deadline for appealing to the Ohio
Supreme Court which denied leave to file a delayed appeal. State v. Williams, 135 Ohio St. 3d
1458 (2013).
Williams filed an application under Ohio R. App. P. 26(B) to raise a claim that he
received ineffective assistance of appellate counsel in two respects (Application, ECF No. 11-1,
PageID 167). The Fourth District denied the Application on the procedural basis that it lacked
the sworn statement in support required by Ohio R. App. P. 26(B)(2)(d), having found that such
a statement was mandatory under the Rule (Entry, ECF No. 11-1, PageID 178-79). The Ohio
Supreme Court declined to exercise jurisdiction over a subsequent appeal. Id. at PageID 193.
Williams then filed this timely Petition for Writ of Habeas Corpus.

ANALYSIS

Ground One: Denial of Due Process in Handling Fourth Amendment Claims

In his First Ground for Relief, Williams asserts he was denied due process of law in the
handling of his Fourth Amendment claims by the state courts. In particular, he asserts
The trial court unconstitutionally found admissible evidence on
Williams’ behalf to be inadmissible, totally cutting-off Williams
[sic] attempts to receive a full and fair hearing. The trial court
arbitrarily and unreasonably sided with the prosecution at every
turn in the suppression hearing, and cut-off Williams’ right to be
heard and to present favorable evidence in a biased and prejudiced
manner.

(Petition, ECF No. 1, PageID 5.)
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Williams does not specify what evidence he offered that was improperly excluded nor
does he offer any basis on which this Court might conclude the trial judge was unconstitutionally
biased or prejudiced against him. On appeal to the Fourth District, he did not raise any of these
claims of lack of due process, but instead raised directly claims under the Fourth Amendment.
Federal habeas corpus relief is not available to state prisoners who allege they were
convicted on illegally seized evidence if they were given a full and fair opportunity to litigate
that question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district
court to determine whether state procedure in the abstract provides full and fair opportunity to
litigate, and Ohio procedure does.

The district court must also decide if a Petitioner's

presentation of claim was frustrated because of a failure of the state mechanism. Habeas relief is
allowed if an unanticipated and unforeseeable application of procedural rule prevents state court
consideration of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in
discussing the concept of a “full and fair opportunity,” held:

The mechanism provided by the State of Ohio for resolution of
Fourth Amendment claims is, in the abstract, clearly adequate.
Ohio R. Crim. P. 12 provides an adequate opportunity to raise
Fourth Amendment claims in the context of a pretrial motion to
suppress, as is evident in the petitioner’s use of that procedure.
Further, a criminal defendant, who has unsuccessfully sought to
suppress evidence, may take a direct appeal of that order, as of
right, by filing a notice of appeal. See Ohio R. App. P. 3(A) and
Ohio R. App. P. 5(A). These rules provide an adequate procedural
mechanism for the litigation of Fourth Amendment claims because
the state affords a litigant an opportunity to raise his claims in a
fact-finding hearing and on direct appeal of an unfavorable
decision.
Id. at 526.
In Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013), the Sixth Circuit held an evidentiary
hearing was not required by due process and followed its prior conclusion that “opportunity
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means opportunity . . . the state court need do no more than ‘take cognizance of the constitutional
claim and render a decision in light thereof.” Id. at 638, quoting Moore v. Cowan, 560 F.2d
1298, 1302 (6th Cir. 1977).
Consistent with Moore and with two of the three votes in Bradley,
we make clear that the Powell "opportunity for full and fair
consideration" means an available avenue for the prisoner to
present his claim to the state courts, not an inquiry into the
adequacy of the procedure actually used to resolve that particular
claim.
Id. at 639-40.
Williams does not make any argument in support of a Fourth Amendment claim in his
Petition. It may be that what he was attempting to do was to lay the groundwork for having this
Court review his Fourth Amendment claims on the merits by asserting he did not get a full and
fair opportunity to litigate those claims. However, his allegations are purely conclusory – he
does not say what evidence was excluded. There is no indication of the face of the Fourth
District’s opinion that the trial court process was unfair.
In sum, from everything that has been presented to this Court, the Court finds Williams
had a full and fair opportunity to litigate his Fourth Amendment claims in the state courts.
Therefore Stone v. Powell, supra, precludes this Court from considering the merits of a Fourth
Amendment claim.
Entirely apart from the Stone v. Powell bar, Williams procedurally defaulted on his
Fourth Amendment claims by failing to timely appeal to the Ohio Supreme Court. That court’s
time deadline for appeal are an adequate and independent basis for a state court decision.
Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004)(citations omitted).
The First Ground for Relief should therefore be dismissed with prejudice.

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Ground Two: Ineffective Assistance of Appellate Counsel

In his Second Ground for Relief, Williams asserts he received ineffective assistance of
appellate counsel in that his counsel on appeal (1) “failed to raise and protect Williams’ double
jeopardy rights against being convicted and sentenced to [sic] allied offenses of similar import,
to his prejudice, via Ohio Revised Code § 2941.25(A)” and (2) “failed to raise on appeal that the
cash seized from Williams’ during the traffic stop and at his residence was in violation of due
process, because there is no proof beyond a reasonable doubt that said U.S. currency was part of
any criminal activity.” (Petition, ECF No. 1, PageID 6.)
Before a petitioner can raise a claim in federal habeas corpus, he must exhaust available
state court remedies for that claim. 28 U.S.C. § 2254(b) and (c); Picard v. Connor, 404 U.S.
270, 275 (1971). For claims of ineffective assistance of appellate counsel in Ohio, the sole
remedy is an application for reopening under Ohio R. App. P. 26(B).2
A criminal defendant is entitled to effective assistance of counsel on appeal as well as at
trial, counsel who acts as an advocate rather than merely as a friend of the court. Evitts v. Lucey,
469 U.S. 387 (1985); Penson v. Ohio, 488 U.S. 75 (1988); Mahdi v. Bagley, 522 F.3d 631, 636
(6th Cir. 2008).
The Strickland v. Washington 466 U.S. 668 (1984), standard for ineffective assistance of
counsel applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000); Burger v.
Kemp, 483 U.S. 776 (1987). A habeas petitioner asserting ineffective assistance of appellate
counsel must show deficient performance and prejudice. To evaluate a claim of ineffective
assistance of appellate counsel, then, the court must assess the strength of the claim that counsel
failed to raise. Henness v. Bagley, 644 F.3d 308 (6th Cir. 2011), citing Wilson v. Parker, 515
2

Unless the direct appeal was to the Supreme Court of Ohio which has a parallel process.

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F.3d 682, 707 (6th Cir. 2008). Counsel's failure to raise an issue on appeal amounts to ineffective
assistance only if a reasonable probability exists that inclusion of the issue would have changed
the result of the appeal. Id., citing Wilson. If a reasonable probability exists that the defendant
would have prevailed had the claim been raised on appeal, the court still must consider whether
the claim's merit was so compelling that the failure to raise it amounted to ineffective assistance
of appellate counsel. Id., citing Wilson. The attorney need not advance every argument,
regardless of merit, urged by the appellant.

Jones v. Barnes, 463 U.S. 745, 751-752

(1983)("Experienced advocates since time beyond memory have emphasized the importance of
winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at
most on a few key issues." 463 U.S. 751-52).
This Court cannot reach the merits of Williams’ Second Ground for Relief because he
procedurally defaulted in presenting the claim to the Fourth District by not including the required
sworn statement. See Entry, ECF No. 11-1, PageID 178-79.
If the Court could reach the merits, it would find this claim meritless. Williams’ Double
Jeopardy claim would likely have failed in the Fourth District because the offenses to which he
pled no contest are not allied offenses of similar import under Ohio Revised Code § 2941.25.
And issues about the seized cash were raised on direct appeal and decided by the Fourth District
on the merits. State v. Williams, supra, ¶¶ 35-37.
Therefore the Second Ground for Relief should be dismissed.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein

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be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
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.

July 31, 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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