Sweeting v. Warden, Southern Ohio Correctional Facility

Filing 22

REPORT AND RECOMMENDATIONS - Petitioner has not rebutted Respondent's claim of procedural default or offered any cause and prejudice to excuse those defaults. It is therefore recommended that the Petition 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 per mitted to proceed in forma pauperis. Objections to R&R due by 4/12/2019. Signed by Magistrate Judge Michael R. Merz on 3/28/2019. (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
DERRICK SWEETING,
Petitioner,

:

- vs -

Case No. 1:18-cv-029
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

Warden,
Southern Ohio Correctional Facility
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Derrick Sweeting under 28 U.S.C. § 2254, is
before the Court for decision on the Petition (ECF No. 3), the State Court Record (ECF No. 10),
the Respondent’s Answer (ECF No. 11), and Petitioner’s Reply (ECF No. 15).
The Magistrate Judge reference in this case was recently transferred to the undersigned to
help balance the Magistrate Judge workload in the Western Division of this Court.

Litigation History

On December 2, 2011, Petitioner was indicted by a Hamilton County grand jury on ten
felony count s arising out of three robberies. The trial court severed counts 10, 11, and 12 and
tried the first nine counts together, resulting in guilty verdicts on six counts and not guilty on the
remaining three. Upon these convictions he was sentenced to seventeen years imprisonment (State
Court Record, ECF No. 10, PageID 114). On appeal, the First District Court of Appeals reversed
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on a sentencing issue but otherwise affirmed. State v. Sweeting, Case No. C-120733 (1st Dist.
Nov. 20, 2013)(unreported; copy at State Court Record, ECF No. 10, PageID 158 et seq.) Sweeting
did not file an appeal within the forty-five days allowed by Ohio law, but eventually filed a Motion
for Delayed Appeal on July 17, 2014. Id. at PageID 167. The Supreme Court of Ohio denied that
Motion on September 24, 2014. Id. at PageID 177. In the meantime on February 11, 2014,
Sweeting was re-sentenced on the issue for which a remand had been ordered. Id. at PageID 178.
The jury trial on the severed counts was held in June 2015, resulting in acquittal on the
felonious assault charge but conviction on the two weapons charges. Id. at PageID 211-15.
Sweeting appealed, but the First District affirmed. State v. Sweeting, Case No. C-150436 (1st Dist.
May 6, 2016)(unreported; copy at State Court Record, ECF No. 10, PageID 255, et seq.)
Once again Sweeting missed the filing deadline, but this time the Ohio Supreme Court
granted him a delayed appeal (State Court Record, ECF No. 10, PageID 269). However, instead
of raising issues from the second trial, Sweeing attempted to raise issues from the first trial and the
Ohio Supreme Court declined to review the case. Id. at PageID 290.
On December 19, 2016, Sweeting filed a petition for post-conviction relief under Ohio
Revised Code § 2953.21 (State Court Record, ECF No. 10, PageID 298 et seq.) The trial court
dismissed the petition as untimely and barred by res judicata. Id. at 305. Sweeing appealed, but
the appeal was dismissed for failure to file a brief. Id. at PageID 307. Sweeting’s Petition in this
Court followed in January 2018, pleading the following four grounds for relief:
Ground One: 5th Amendment was broke I never faces [sic] my
accuse [sic]
Supporting Facts: 5th Amendment was broke my accuser (Avnish
Kumar Patel) never show up at my trail [sic] and I was convicted of
this crime the Foodmart Robbery

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14th Amendment was broke I never got a photo line up from the
officers they never found DNA, GSR, no Fingerprint, to link me too
[sic] these robberys. [sic]
6th Amendment was broke. Micheala Stagnaro put any these
Argument in my brief when it was in my transcripts. (She never
stated)
Ground Two: 14th Amendment
Supporting Facts: The offices [sic] never didn’t any photo line ups
with any accuser. They officers never found any physical evidence
for as DNA, GST, no fingerprint to ever link me to these crime. The
officers evening [sic] stated this on the recorder and I was still
convicted why?
Ground Three: 6th Amendment Ineffective Assistance Counsel
Supporting Facts: Ms. Michaela Stagnaro was my appeal she did
not try to fight my case all the way. When these argument was on
my transcript and recorders.
Ground Four: 8th Amendment Cruel Unusual Punishment
Supporting Facts: The court which is Judge Jody M. Luebbers
sentences me to 21 years and base on the evidence the State presents.
They ever [sic] had enough evidence to convict me of these crimes
so Im [sic] asking for my sentence to be vacate and bring back to court
for a new trial.

Analysis
Procedural Default

Respondent asserts all of Petitioner’s claims are procedurally defaulted by his various
failure in presenting them to the state courts. The Answer argues claims arising from the first trial
were defaulted because Sweeting’s appeal to the Supreme Court of Ohio was untimely and claims
arising from the second trial were not actually presented to that court.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
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follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas
petitioner who fails to comply with a State’s rules of procedure waives his right to federal habeas
corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v.
Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
Coleman, 501 U.S. at 724.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S. Ct. 612, 175 L.
Ed. 2d 417 (2009). This is an important “corollary” to the exhaustion
requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 S. Ct. 1847,
158 L. Ed. 2d 659 (2004). “Just as in those cases in which a state
prisoner fails to exhaust state remedies, a habeas petitioner who has
failed to meet the State’s procedural requirements for presenting his
federal claims has deprived the state courts of an opportunity to
address” the merits of “those claims in the first instance.” Coleman,
501 U.S., at 731-732, 111 S. Ct. 2546, 115 L. Ed. 2d 640. The
procedural default doctrine thus advances the same comity, finality,
and federalism interests advanced by the exhaustion doctrine. See
McCleskey v. Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 113 L. Ed.
2d 517 (1991).

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Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott
v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas petitioner
can overcome a procedural default by showing cause for the default and prejudice from the asserted
error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
In his Reply, Sweeting blames the deficiencies in the case on his appellate attorney,
Michaela Stagnaro. However, the procedural defaults on which the Respondent relies all occurred
at stages of the case at which Ms. Stagnaro did not represent Petitioner and he was not
constitutionally entitled to appointed counsel, i.e., at the Ohio Supreme Court stage.
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Conclusion

Petitioner has not rebutted Respondent’s claim of procedural default or offered any cause
and prejudice to excuse those defaults. It is therefore recommended that the Petition 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.

March 28, 2019.
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 mail. .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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