Harris v. Warden Ross Correctional Institution

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATIONS AND DISMISSING CASE. The request for cert. of appealability is GRANTED. Signed by Judge James L Graham on 5/6/11. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARCUS L. HARRIS,
Petitioner,

CASE NO.2:08-CV-1043
JUDGE JAMES L. GRAHAM
MAGISTRATE JUDGE E.A. Preston Deavers

v.
WARDEN, ROSS CORRECTIONAL
INSTITUTION,
Respondent.

OPINION AND ORDER
On December 17, 2010, the Magistrate Judge issued a Report and Recommendation denying
Petitioner’s request for an evidentiary hearing and recommending that the instant petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. Petitioner has filed objections to the
Magistrate Judge’s Report and Recommendation. (Doc. 22). For the reasons that follow,
Petitioner’s objections (Doc. 22) are OVERRULED. The Report and Recommendation is
ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Petitioner’s request for a certificate of appealability is GRANTED.
OBJECTIONS
Petitioner asserts that he was denied equal protection under Batson v. Kentucky, 476 U.S. 79
(1986), and Miller-El v. Dretke, 545 U.S. 231 (2005), because the prosecutor exercised a peremptory
challenge to remove Delores Livingston, an African-American from the jury based on her race,
resulting in no African Americans being seated on the jury. (Claim One.) He additionally asserts
ineffective assistance of counsel due to his attorney’s failure to make juror questionnaires a part of
the record on appeal (Claim Two) and argues that imposition of non-minimum, maximum, and
consecutive terms of incarceration violated due process and the Ex Post Facto Clause. (Claim

Three.) The Magistrate Judge recommended dismissal of all of these claims on the merits.
Petitioner objects to the Magistrate Judge’s recommendation of dismissal of Claims One and
Two. In this regard, he again raises all of the arguments he previously presented. Petitioner
contends that the Magistrate Judge erred by treating as irrelevant evidence relating to jurors who did
not sit on the jury and in concluding that the record reflected no evidence of disparate questioning
of potential jurors by the prosecutor. Petitioner indicates that, contrary to the conclusion of the
Magistrate Judge, Ammons was seated as an alternate juror. Petitioner contends that the decision
of the state appellate court rejecting his claim of ineffective assistance of appellate counsel is not
entitled to deference under 28 U.S.C. § 2254(d), (e), because the claim involves a mixed question
of fact and law.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. This Court is
not persuaded by Petitioner’s arguments. This Court agrees with the Magistrate Judge’s conclusion
that the record fails to reflect either disparate questioning or discriminatory intent by the
prosecution, or that Petitioner has met his burden of establishing that the state appellate court’s
decision rejecting his claim warrants federal habeas corpus relief. Removal of jurors identified by
Petitioner for cause, or through the exercise of a peremptory challenge from the prosecutor and
defense counsel, fails to support his allegation of racial animus. Further, the prosecutor’s failure to
exercise a peremptory challenge to strike Diana Ammons from sitting as an alternate juror does not
reflect that the prosecutor’s explanation for removing Livingston was pretextual. In response to the
question, “Have you, a friend, a relative or anyone you know ever been arrested for or convicted of
a felony?”, Ammons indicated “Della Hooper – drug charges – June 2004.” See Doc. 20, Exhibit
6. Contrary to Petitioner’s allegation here, Ammons did not indicate on her juror questionnaire that

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any member of her family or close friends had been affiliated with the corrections system, prison
or jail, probation or parole, drug enforcement administration, the public defender or prosecution.
She did have friends who were police officers, and knew a sheriff through marriage. Id. By
contrast, Livingston indicated on her juror questionnaire, inter alia, that her son and sister had been
affiliated with law enforcement, corrections, probation and parole, the public defender, and the drug
enforcement administration; her son had been convicted of drug trafficking; and her sister had been
convicted of prostitution. Livingston further seemed to indicate in her juror questionnaire that her
sister had at least a five year history of police arrests. Doc. 20, Exhibit 1.
The factual findings of the state appellate court are presumed to be correct under 28 U.S.C.
§ 2254(e), where the state appellate court rejects a claim on the merits. Petitioner does not refer to,
and this Court through its own examination has not uncovered any authority indicating a contrary
result is in order here. Further, 28 U.S.C. § 2254(d)(1) applies to mixed questions of law and fact,
including a claim of ineffective assistance of counsel. See Mitchell v. Mason, 325 F.3d 732, 737-38
(6th Cir. 2003)(holding the same).
For these reasons, and for the reasons detailed in the Magistrate Judge’s Report and
Recommendation, Petitioner’s objections are OVERRULED.
REQUEST FOR A CERTIFICATE OF APPEALABILITY
Petitioner seeks a certificate of appealability on habeas corpus Claims One and Two. Where
a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner
“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529
U.S. 473, 484 (2000). To make a substantial showing of the denial of a constitutional right, a

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petitioner must show the following:
[T]hat reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different
manner or that the issues presented were “‘adequate to deserve
encouragement to proceed further.’” Barefoot, 463 U.S., at 893, and
n.4 . . . .
Id. The Court is persuaded that Petitioner has met this standard here. Petitioner’s request for a
certificate of appealability is, therefore, GRANTED. The Court certifies the following issues for
appeal:
1.

Was Petitioner denied equal protection under Batson v.
Kentucky, 476 U.S. at 79 (1986), and Miller-El v. Dretke, 545
U.S. at 231, because the prosecutor exercised a peremptory
challenge to remove Delores Livingston, an AfricanAmerican, from the jury based on her race?

2.

Was Petitioner denied effective assistance of counsel because
his attorney failed to ensure that juror questionnaires were
made a part of the record on appeal?

In sum, Petitioner’s objections (Doc. 22) are OVERRULED.

The Report and

Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Petitioner’s request for a certificate of appealability is GRANTED.
It is so ORDERED.
s/James L. Graham
JAMES L. GRAHAM
United States District Judge

DATE: May 6, 2011

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