Dangerfield v. Warden, Warren Correctional Institution

Filing 16

REPORT AND RECOMMENDATIONS - The Petition should 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 C ircuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 12/8/2016. Signed by Magistrate Judge Michael R. Merz on 11/21/2016. (kpf)(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
CHRISTOPHER DANGERFIELD,
Petitioner,

:

- vs -

Case No. 1:15-cv-609
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

BOBBY BOGAN, JR., Warden,,
Warren Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the
merits. The case was transferred to the undersigned from Magistrate Judge Karen Litkovitz on
November 9, 2016, to help balance the workload among the Western Division Magistrate Judges
(ECF No. 15).
Mr. Dangerfield filed the Petition September 20, 2015 (ECF No. 1). After Respondent
filed the State Court Record (ECF No. 9) and an Answer/Return of Writ (ECF No. 10), Petitioner
sought to compel completion of the record and an extension of time to file his traverse until the
record was complete (ECF No. 11), but he also filed a Traverse at that time (ECF No. 12). Judge
Litkovitz granted both requests (ECF No. 13) and the State complied with the Order (ECF No.
14). However, Mr. Dangerfiled filed no supplement to his traverse within the twenty-one days
Judge Litkovitz allowed and his time to do so expired September 25, 2016.
Mr. Dangerfield pleads one Ground for Relief as follows:
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GROUND ONE: The trial court erred to the substantial prejudice
of defendant-appellant by rendering a judgment in the face of
ineffective assistance of counsel in violation of the United States
and Ohio Constitutions.
SUPPORTING FACTS: Trial court at sentencing failed to
conduct a presentence investigation that would have revealed
mitigating circumstances that would have warranted a shorter
sentence.

(Petition, ECF No. 1, PageID 4.)

Procedural and Factual History

Dangerfield was indicted by the Hamilton County Grand Jury in 2011 on one count of
aggravated murder (Ohio Revised Code § 2903.01(A)) (Count 1) with specifications; two counts
of endangering children (Ohio Revised Code § 2919.22(B)(1)(Counts 2 and 3); and one count of
murder (Ohio Revised Code § 2903.02(B))(Count 4).
Petitioner waived his right to a jury trial, elected to withdraw his not guilty plea, and
pleaded guilty to aggravated murder. The State agree to dismiss the death penalty specification
and Counts 2-4. The plea agreement specified that Dangerfield would receive a life sentence and
then parole eligibility review after 20, 25, or 30 years, or life without parole.
On March 21, 2013, the court accepted Dangerfield’s aggravated-murder plea and
dismissed the death penalty specification and Counts 2-4. Defendant was later sentenced to life
in prison, with parole eligibility after 25 years.
Dangerfield, represented by counsel, appealed to the Court of Appeals of Ohio, First
Appellate District, Hamilton County, raising one assignment of error:

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1. The trial court erred to the substantial prejudice of defendant
appellant by rendering a judgment in the face of ineffective
assistance of counsel in violation of the United States and Ohio
Constitutions.
(State Court Record, ECF No. 9, PageID 59.)

On June 2, 2014, the Court of Appeals affirmed the judgment of the trial court.
State v. Dangerfield, 2014-Ohio-1638, 2014 Ohio App. LEXIS 1638 (1st Dist. Apr. 18, 2014);
appellate jurisdiction declined, 140 Ohio St. 3d 1439 (2014).
On November 25, 2015, Dangerfield, pro se, filed an application with the First District
Court of Appeals to reopen his appeal pursuant to Ohio App. R. 26(B)(State Court Record, ECF
No. 9, Exhibit 17; PageID 85). Dangerfield claimed his appellate counsel was ineffective for
failing to raise the following assignments of error:
1.

Appellate counsel was ineffective, failing to present on direct appeal as error
the ineffective assistance of trial counsel for counsel’s failure to raise the
defense of insanity. (Id.)

The State opposed the application for reopening and matter is pending.
On June 8, 2015, Dangerfield filed a motion with the Hamilton County Court of Common Pleas
requesting his mental health records from December 28, 2010, through April 19, 2013, and for
appointment of counsel. (Exhibit 21; PAGEID #: 98). The court has not ruled on either of these
motions.
On December 14, 2015, Dangerfield moved to withdraw his guilty plea claiming that at
the time of his plea colloquy, he was heavily medicated with “psychotropic and psychoactive
drugs”, and therefore mentally incapacitated. (Exhibit 22; PAGEID #: 100). The State argues
against Dangerfield’s motion.

This matter is also still pending.

Dangerfield has not pleaded either of these claims in the instant Petition, so the pendency

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of these matters in the Ohio courts does not prevent the Petition from being ripe for decision.

Analysis

Petitioner raises one ground for relief, to wit, that his trial attorney failed to request a
presentence investigation report prior to sentencing. Respondent raises no affirmative defense to
this claim, but instead defends on the merits.
The governing standard for ineffective assistance of counsel is found in Strickland v.
Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence
has two components. First, the defendant must show that counsel's
performance was deficient. This requires showing that counsel
was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial scrutiny of counsel's performance must be highly
deferential. . . . A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel=s challenged
conduct, and to evaluate the conduct from counsel=s perspective at
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the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel's conduct falls within a wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
"might be considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is
a probability sufficient to overcome confidence in the outcome.
466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142
F.3d 313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally
Annotation, 26 ALR Fed 218.
Dangerfield raised his ineffective assistance of trial counsel claim on direct appeal and
the First District decided it as follows:
[*P2] Dangerfield appeals his conviction. He argues in his sole

assignment of error that his trial counsel had been ineffective
because counsel had failed to request a presentence investigation
report. For a defendant to succeed on a claim of ineffective
assistance, he or she must demonstrate that counsel's performance
was deficient, and that the defendant was prejudiced by this
deficient performance. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 20 52, 80 L.Ed.2d 674 (1984). Counsel will only
be considered deficient if his or her performance fell below an
objective standard of reasonableness. Id. at 688. And a defendant
is only prejudiced if it is demonstrated that the outcome of the
proceedings would have been different but for counsel's
performance. Id. at 694. As we review the record, this court is
highly deferential when judging counsel's actions, and we begin
with the presumption that counsel's behavior fell within the range
of reasonable professional assistance. Id. at 689.
[*P3] With this standard in mind, we conclude that Dangerfield's

counsel was not ineffective for failing to request a presentence
investigation report. This court generally refrains from second
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guessing counsel's trial strategy. And in this case, the record is
clear that counsel intentionally elected not to request a presentence
investigation report. When questioned by the trial court about the
report, Dangerfield's counsel responded that "[w]e specifically did
not request one." Because Dangerfield can do no more than
speculate that a presentence investigation report would have been
favorable to him, we cannot conclude that Dangerfield was
prejudiced by his counsel's failure to request the report. See State
v. Brown, 4th Dist. Athens No. 09CA3, 2009-Ohio-5390, ¶ 48.
[*P4] Dangerfield has not shown that his trial counsel was

ineffective. The assignment of error is overruled, and the judgment
of the trial court is affirmed.
State v. Dangerfield supra.
When a state court decides on the merits a federal constitutional claim later presented to a
federal habeas court, the federal court must defer to the state court decision unless that decision
is contrary to or an objectively unreasonable application of clearly established precedent of the
United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131
S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685,
693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
Here the First District Court of Appeals cited the relevant controlling Supreme Court
precedent from Strickland.

It found that not obtaining a presentence investigation was a

deliberate decision of the trial attorney and not inadvertence or negligence. That is a finding of
fact well supported by the record.
Mr. Dangerfield argues that the First District relied on a distinguishable case, Martin v.
Mitchell, 280 F.3d 594 (6th Cir. 2002)(Traverse, ECF No. 12, PageID 144). However, that case
is nowhere cited in the First District’s opinion.
Had there been a presentence investigation conducted, Mr. Dangerfield claims it would
have contained

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a plethora of information related to Petitioner's mental retardation,
the drugs that Petitioner had been prescribed at the time of the
death of Petitioner's son, and the concoction of drugs that addled
Petitioner's mind at the time that he was accepting his guilty plea,
making him unable to speak and form coherent language (TR@
24). Not only would this information have potentially influenced
the sentencing of Petitioner, but it easily could have influenced the
trial court's decision to accept Petitioner's plea in the first place.
(Traverse, ECF No. 12, PageID 144-45.) The problem with this assertion is that it is completely
speculative: there is no evidence of record to support this claim. This Court has no way of
knowing what would have been in a presentence investigation report and neither did the Court of
Appeals. Dangerfield’s entire argument on this assignment of error on direct appeal was:
While the request for a presentence investigation is generally a
discretionary matter for counsel, See, e.g., L. Katz, P. Giannelli, J.
Lipton, & P. Crocker, Criminal Law, §76: 19 (3rd ed. 2009),
Dangerfield would submit that a presentence investigation could
have possibly revealed mitigating circumstances calling for a
shorter definite sentence.
(Appellant’s Brief, State Court Record, ECF No. 9, PageID 61.) Here, as well, there is no record
evidence cited and counsel does not even speculate what the possible mitigating circumstances
would have been.
If Mr. Dangerfield had evidence of what would have shown up in a presentence
investigation report, he could have submitted it by way of a petition for post-conviction relief in
the trial court, but he has not done so, and the time for doing so has expired. See Ohio Revised
Code § 2953.21.
That any mitigating circumstances would have reduced his sentence further is also
speculative. The grand jury returned an indictment with capital specifications and Dangerfield
pleaded guilty to murdering his own son. Even with those facts, he received the second-lowest
sentence possible under the plea agreement, life with parole eligibility after twenty-five years.

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Conclusion

The First District’s decision on Dangerfield’s claim of ineffective assistance of trial
counsel was neither contrary to nor an objectively unreasonable application of the relevant
Supreme Court precedent, Strickland v. Washington, supra. Therefore the Petition should 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.

November 21, 2016.
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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