Horna v. Warden, Chillicothe Correctional Institution

Filing 9

REPORT AND RECOMMENDATIONS - The Magistrate Judge respectfully recommends the Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, the Court should also deny any requested certificate of appealab ility and certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 12/27/2016. Signed by Magistrate Judge Michael R. Merz on 12/7/2016. (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
VICTOR J. HORNA,
Petitioner,

:

- vs -

Case No. 1:15-cv-680
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

WARDEN,
Chillicothe Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court for recommendation
on the merits. Mr. Horna first filed his Petition (ECF No. 3). On Judge Litkovitz’s Order (ECF
No. 4), the Respondent then filed the State Court Record (ECF No. 5) and a Return of Writ (ECF
No. 6). Petitioner timely filed a Traverse (ECF No. 7) and the case is therefore ripe for decision.
Petitioner pleads the following grounds for relief:
Ground One: Due Process and Equal Protection
Supporting Facts: As provided by statute via the General
Assembly, the courts failed at the plea hearing and at sentencing to
comport with legislative mandates for “first-time” offenders. The
bill of information cannot cure a statutory defect nor can Petitioner
consent or acquiesce subject-matter jurisdiction where it is
otherwise lacking.
The “truth-in-sentencing” guidelines as
intended by the legislature were ignored by the courts and counsel.
Ground Two: Double Jeopardy
Supporting Facts: Despite the legislative provision of [Ohio
Revised Code] § 2941.25 which codifies the protections of the
Double Jeopardy Clause, Petitioner was not afforded this statutory

mandate and constitutional provision which prohibits multiple
punishments for offenses of similar import. Counsel and the court
at the plea hearing and at sentencing did not address, resolve, or
submit any waivers of this Fifth Amendment right.
Ground Three: Ineffective Assistance of Counsel
Supporting Facts: At all critical stages, counsel failed in his clear
duty to advise Petitioner of his rights under the existing language
of the legislature, the Ohio Constitution, and the United States
Constitution. Moreover, despite ignoring the felony sentencing
mandates, counsel advised Petitioner to be less than truthful at the
plea hearing
(Petition, ECF No. 3).

Procedural History

Having waived indictment, Mr. Horna was charged by Information with one count of
gross sexual imposition and one count of unlawful sexual conduct with a minor (State Court
Record, ECF No. 5, PageID 48). He pleaded guilty at arraignment to both counts and was
sentenced to four years on each count with the terms to run consecutively. Id. at PageID 56. He
took no immediate appeal, but was given permission by the Twelfth District Court of Appeals to
file a delayed direct appeal. Id. at PageID 64. Proceeding pro se, he raised two assignments of
error:
1.

Whether the trial court committed prejudicial error in failing to abide by the sentencing

guidelines as legislatively promulgalgated [sic]?
2.

Whether Appellant was deprived of effective assistance of counsel?

Appellant’s Brief, Id. at PageID 66. The Twelfth District Court of Appeals overruled both

assignments of error and the Ohio Supreme Court declined review.

State v. Horna, No.

CA2013-11-210, 2015 Ohio App. LEXIS 1643 (12th Dist. May 4, 2015); jurisdiction declined,
143 Ohio St. 3d 1466 (2015). Mr. Horna then timely filed his Habeas Corpus Petition in this
Court on November 9, 2015.

Analysis

Ground One: Due Process and Equal Protection

In his First Ground for Relief, Horna asserts the Common Pleas Court did not “comport
with legislative mandates for ‘first-time’ offenders.” However, as this claim was argued to the
Twelfth District, it was that the Common Pleas Court failed to make the statutory findings
required before imposing consecutive sentences. State v. Horna, supra, ¶ 7. The Twelfth
District overruled this portion of the argument, holding:
[*P11] Here, the record establishes that the trial court made the
findings required by R.C. 2929.14(C)(4) before ordering Horna's

sentences be served consecutively. Specifically, in ordering Horna
to serve consecutive sentences for gross sexual imposition and
unlawful sexual conduct with a minor, the trial court made the
following findings at the sentencing hearing:
The Court will specifically find that * * * consecutive
sentences are necessary to protect the public and to
adequately in this case, very much adequately punish
[Horna] are not disproportionate.
And the Court will find in addition to that that the harm to
the victim in this case was so great or unusual that a
single term does not adequately reflect the seriousness of

your conduct. * * * Seven, eight years of this type of
conduct and behavior and control and victimizing this
little girl. So for those reasons, the Court will find that
consecutive sentences are necessary, and appropriate.
[*P12]

The sentencing entry incorporated those findings,
specifically stating that:
The Court finds that consecutive sentences are not
disproportionate to the seriousness of the offender's
conduct and to the danger the offender poses to the
public. The court also finds that: * * * [a]t least two of the
multiple offenses were committed as part of one or more
courses of conduct, and the harm caused by two or more
of the multiple offenses was so great and unusual that no
single prison term for any of the offenses committed as
part of a single course of conduct adequately reflects the
seriousness of the defendant's conduct.
[*P13] Thus, the trial court found that (1) consecutive sentences

were necessary to protect the public, (2) consecutive sentences
were not disproportionate to the seriousness of his crimes, and (3)
Horna engaged in the two offenses as part of a course of conduct
over a number of years and the harm was so great or unusual that a
single term would not reflect the seriousness of his crimes.
Accordingly, the trial court made the statutorily required findings
pursuant to R.C. 2929.14(C)(4) before imposing consecutive
terms.
State v. Horna, supra.
Respondent argues Petitioner’s First Ground for Relief does not state a claim of a federal
constitutional violation (Return, ECF No. 6, PageID 154-58. Petitioner responds that violations
of state law can constitute deprivations of federal constitutional rights, particularly of due
process of law. (Traverse, ECF No. 7, PageID 164-66).
Failure to abide by state law is not itself a constitutional violation. Roberts v. City of
Troy, 773 F.2d 720 (6th Cir. 1985). “A mere error of state law is not a denial of due process.”
Rivera v. Illinois, 556 U.S. 148, 158 (2009), quoting Engle v. Isaac, 456 U.S. 101, 121, n. 21

(1982). “The Due Process Clause, our decisions instruct, safeguards not the meticulous
observance of state procedural prescriptions, but ‘the fundamental elements of fairness in a
criminal trial.” Rivera, quoting Spencer v. Texas, 385 U.S. 554, 563-64 (1967). See also Levine
v. Torvik, 986 F.2d 1506, 1515 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on
other grounds by Thompson v. Keohane, 516 U.S. 99 (1995)( “A state cannot be said to have a
federal due process obligation to follow all of its procedures; such a system would result on the
constitutionalizing of every state rule, and would not be administrable.”).
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
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).
Mr. Horna never claimed in the Twelfth District that the asserted failure of the Common
Pleas Court to follow Ohio Revised Code § 2929.14 was a violation of Due Process or Equal
Protection. Instead, he merely raised a question of state law: did the trial court follow the
statute? The Twelfth District found that the trial court had acted in accordance with state law.
That interpretation of state law is binding on this Court. "[I]t is not the province of a federal
habeas court to reexamine state court determinations on state law questions. In conducting
habeas review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68

(1991).
Because the Twelfth District’s determination that the trial court made the appropriate
findings needed for consecutive sentences and this Court cannot second guess that decision,
Horna’s First Ground for Relief is without merit and should be dismissed with prejudice.

Second Ground for Relief: Double Jeopardy

In his Second Ground for Relief, Mr. Horna claims he is being punished multiple times
for allied offenses of similar import as forbidden by Ohio Revised Code § 2941.25 and therefore
by the Double Jeopardy Clause of the United States Constitution.
Respondent asserts this claim is procedurally defaulted because it was not presented to
the Twelfth District on delayed direct appeal. (Return, ECF No. 6, PageID 149-52). However,
the Twelfth District realized that the appeal presented an allied offenses claim and decided it as
follows:
[*P15] The Ohio Supreme Court has recently clarified the test
for allied offenses. State v. Ruff, Slip Opinion No.2015-Ohio995, 143 Ohio St. 3d 114, 34 N.E.3d 892. The Ruff court noted
that the trial court or reviewing court must "first take into account
the conduct of the defendant." Id. at ¶ 25.

If any of the following is true, the offenses cannot merge
and the defendant may be convicted and sentenced for
multiple offenses: (1) the offenses are dissimilar in import
or significance—in other words, each offense caused
separate, identifiable harm, (2) the offenses were
committed separately, and (3) the offenses were
committed with separate animus or motivation.
Id.
[*P16] In the present case, Horna's convictions were based on
conduct that occurred separately over the course of a number of

years. The gross sexual imposition conviction stems from conduct
that occurred between January 1, 2005, and December 31, 2006.
On the other hand, the unlawful sexual conduct with a minor
conviction is based upon conduct that occurred between January of
2008 and December 31, 2009. It is plainly obvious the offenses
were committed on separate occasions and with a separate animus.
Accordingly, Horna's convictions are not allied offenses of similar
import.
State v. Horna, supra.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
affords a defendant three basic protections:
It protects against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the same
offense after conviction.
And it protects against multiple
punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165 (1977), quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969). The Double Jeopardy Clause was held to be applicable to the States through the
Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 794 (1969).
An Ohio court of appeals decision of a double jeopardy claim which is limited to the
application of Ohio Rev. Code § 2941.25 is entirely dispositive of the federal double jeopardy
claim. Jackson v. Smith, 745 F.3d 206 (6th Cir. 2014), citing State v. Rance, 85 Ohio St. 3d 632
(1999), overruled by State v. Johnson, 128 Ohio St. 3d 153 (2010). “What determines whether
the constitutional prohibition against multiple punishments has been violated is the state
legislature’s intent concerning punishment. Specifically, ‘[w]ith respect to cumulative sentences
imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing
court from prescribing greater punishment than the legislature intended.’” Jackson v. Smith, 745
F.3d 206 (6th Cir. 2014), quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983).
Mr. Horna relies on Volpe v. Trim, 708 F.3d 688 (6th Cir. 2013), as supporting his Double

Jeopardy claim (Traverse, ECF No. 7, PageID 168. Actually, Volpe supports the Warden’s
position. It held, “When assessing the intent of a state legislature, a federal court is bound by a
state court’s construction of that state’s own statutes.” Volpe, citing Banner v. Davis, 886 F.2d
777, 780 (6th Cir. 1989). Here the Twelfth District expressly held that Horna’s convictions were
not for allied offenses of similar import because they were committed at separate times. Unlike
the charging document in Volpe, the Information in this case clearly distinguished the time
periods involved in the two offenses.
Mr. Horna’s Second Ground for Relief is without merit and should be dismissed with
prejudice.

Third Ground for Relief: Ineffective Assistance of Counsel

In his Third Ground for Relief, Mr. Horna asserts he received ineffective assistance of trial
counsel when his trial attorney (1) failed to advise him of his rights under the law; (2) ignored
Ohio felony sentencing mandates; and (3) advised Petitioner to be less than truthful at the plea
hearing.
Respondent asserts this claim must be analyzed under Strickland v. Washington, 466 U.S.
668 (1984). Petitioner responds that Strickland is “not a well-settled standard, but merely a
boiler-plate of a Sixth Amendment right of Effective Assistance of Counsel.” (Traverse, ECF
No. 7, PageID 169.) Instead, Horna asserts that “[i]n accordance with the Constitution, effective
assistance of counsel is the conscientious, meaningful representation wherein a defendant is
advised of his fundamental rights and honest, learned and able counsel is given a reasonable
opportunity to perform the task assigned to him.” Id. This is certainly a reasonable reading of

what the Sixth Amendment generally requires. However, to prevail on a claim under 28 U.S.C.
§ 2254, a habeas petitioner must show that his conviction and sentence violated the Constitution
as shown in clearly established case law of the United States Supreme Court. A District Court
deciding a habeas corpus case cannot develop rights under the Constitution based on a
“reasonable reading” provided by a habeas petitioner, but must follow the law as the Supreme
Court has declared it.
Strickland, supra, is in fact the leading Supreme Court case on the meaning of ineffective
assistance of trial counsel. There the Court held:
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
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, 184 (1986), citing Strickland,
supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687.
Horna presented an ineffective assistance of trial counsel claim on delayed direct appeal
and the Twelfth District decided it as follows:
[*P19]

WHETHER APPELLANT WAS DEPRIVED OF
EFFECTIVE ASSISTANCE OF COUNSEL.
[*P20] To prevail on an ineffective assistance of counsel claim,
an appellant must establish (1) that his trial counsel's performance
was deficient and (2) that such deficiency prejudiced the defense to
the point of depriving the appellant of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. Vore, 12th Dist. Warren Nos. CA201206-049 and CA2012-10-106, 2013-Ohio-1490, ¶ 14. Trial

counsel's performance will not be deemed deficient unless it "fell
below an objective standard of reasonableness." Strickland at 688.
To show prejudice, the appellant must prove there exists "a
10

reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." Id. at 694.
An appellant's failure to satisfy one prong of the Strickland test
negates a court's need to consider the other. State v. Madrigal, 87
Ohio St.3d 378, 389, 2000 Ohio 448, 721 N.E.2d 52 (2000).
[*P21] Horna supports his claim of ineffective assistance of
counsel by stating that, "[a]s previously elucidated, [Horna's] case
is riddled with the absence of statutory requirements that are
rudimentary at best." Having already found that the trial court did
not err in imposing consecutive sentences or finding that the
charges were not allied offenses under the first assignment of error,
we do not find that Horna's counsel was deficient for declining to
raise those meritless arguments below.
[*P22] In light of the foregoing, having found that Horna failed
to show that his counsel's performance was deficient, Horna's
second assignment of error is overruled.

State v. Horna, supra.
When a state court decides a federal constitutional issue later presented in habeas corpus,
the federal court must defer to the state court’s ruling unless it is contrary to or an objectively
unreasonable application of clearly established Supreme Court precedent.

28 U.S.C. §

2254(d)(1); Terry Williams v. Taylor, 529 U.S.362 (2000).
The Twelfth District clearly recognized Strickland as the controlling precedent and its
application was completely reasonable: an attorney does not provide ineffective assistance when
he fails to make completely meritless claims.
There are some ways in which Horna’s ineffective assistance of trial counsel claims in
this Court are broader than those he made in the Ohio courts. For example, he claims his
attorney told him to be less than truthful during the plea hearing. That is a claim based on an offthe-record conversation with his attorney, the facts of which were not a matter of record before
the Twelfth District. The way to place such facts of record is to file them as part of an Ohio
Revised Code § 2953.21 petition. Mr. Horna has never done that and the time within which he
11

could have filed such a petition has passed. Accordingly, he has procedurally defaulted on an
off-record claims of ineffective assistance of trial counsel.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends the
Petition be dismissed with prejudice. Because reasonable jurists would not disagree with this
conclusion, the Court should also deny any requested certificate of appealability and certify to
the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to
proceed in forma pauperis.
.

December 7, 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. 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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