Wade v. Warden Ross Correctional Institution
Filing
43
REPORT AND RECOMMENDATION re 2 Petition for Writ of Habeas Corpus. Objections to R&R due by 4/2/2012. Signed by Magistrate Judge Elizabeth Preston Deavers on 3/14/2012. (sln1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID WADE,
Petitioner,
CASE NO. 2:09-CV-632
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE E.A. Preston Deavers
v.
MICHAEL SHEETS, WARDEN
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This matter is before the Court on the instant Petition, Respondent’s Return
of Writ, Petitioner’s Traverse, and the exhibits of the parties. For the reasons that follow, the
Magistrate Judge RECOMMENDS that this action be DISMISSED.
FACTS and PROCEDURAL HISTORY
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
this case as follows:
Appellant, David E. Wade, was indicted on aggravated burglary,
rape, kidnapping, aggravated robbery, theft of a motor vehicle, theft
of property valued over $500, receiving stolen property, failure to
comply with an order or signal of a police officer and possession of
cocaine for a total of nine counts, many of which contained firearm
specifications. After a jury trial, appellant was found guilty on all
counts, except the aggravated robbery, and was acquitted of the
firearm specifications. The trial court imposed a sentence of ten years
for Count One, aggravated burglary; ten years for Count Two, rape;
ten years for Count Three, kidnapping; eighteen months for Count
Five, theft of a motor vehicle; twelve months for Count Six, theft of
property valued over $500; twelve months for Count Seven, receiving
stolen property (motor vehicle); eighteen months for Count Eight,
failure to comply with an order or signal of a police officer; and
twelve months for Count Nine, possession of drugs. The trial court
merged Counts Two and Three, and the sentences for Counts One,
Five, Six, Seven and Eight were ordered to be served consecutively
with each other. The trial court held a sexual predator hearing and
adjudicated appellant a sexual predator.
***
The charges against appellant arose out of events beginning on
August 20, 2002. The first witness to testify at the trial was Candice
Baugh (“Baugh”) who stated that, on that date, she lived in an
apartment near The Ohio State University campus. Baugh was a
student and was working at the Development Office at The Ohio
State University Medical Center. She had come home for lunch
around 2:00 p.m., and was starting to make lunch when there was a
knock on her door. Baugh peeked out her window and asked the man
standing at her door what he wanted. Appellant asked if a different
person lived there and then asked to use her telephone. Baugh opened
the door slightly and gave him the telephone. When he was finished,
she again opened the door slightly but, this time, appellant pushed the
door open and entered the apartment. He pulled a silver gun out of his
bag and told her to “shut up” and to take her clothes off. (Tr. at 6465.) He told her to lay down on the living room floor and he laid on
top of her and had intercourse. Afterwards, Baugh asked if she could
put some clothes back on and she put on her shirt. He told her to pack
up her laptop computer and he took her purse, cell phone, cordless
phone and car keys. Appellant then left in her Honda Prelude. Baugh
put on her pants and ran to her neighbor's apartment, and called the
police and her stepfather. Later when the police showed her a photo
array, she immediately identified appellant.
Bryan Briskey, Baugh's neighbor, testified that Baugh seemed
disoriented and looked as if she was fighting back tears when she
came to his apartment to use the phone, explaining that she had just
been raped and had her car stolen. Chip Thompson, a Columbus
Police Officer on a bicycle unit, was the first to respond and stated
that Baugh's demeanor when he talked to her was that she was very
upset, crying, agitated and a little confused.
Heather Camille Jones (“Jones”) testified that she lived in an
apartment across the street from Baugh. Jones was leaving to go to
the store and noticed a man standing on the porch of Baugh's
apartment. She was gone for approximately 20 to 30 minutes and,
when she returned, the police were there. On September 6, 2002, she
was shown a photo array and identified appellant as the man she saw,
2
but she was not positive it was him. Jones did not remember appellant
carrying a bag or backpack, but she stated she might not have seen it
because she only saw his left side.
Cheryll Minke (“Minke”), the Sexual Assault Nurse Examiner
(“SANE”) from Riverside Methodist Hospital who examined Baugh,
found no physical trauma but did find redness on Baugh's cervix. She
explained that redness is usually from some trauma or something that
has occurred to the cervix and is consistent with recent vaginal
intercourse and consistent with the history that Baugh related to her.
Minke wrote “acquaintance” on the hospital exam form in response
to the relationship of assailant to patient; however, the doctor who
examined Baugh dictated notes that stated Baugh was assaulted “by
a male that is not known to her.”
Elderberry Clodfelter (“Clodfelter”) testified that, while standing on
a street corner, he was approached by a male driving a blue Honda
Prelude who was looking for drugs. Clodfelter got inside the car and
appellant gave him a cell phone in exchange for drugs. Appellant
then reached behind Clodfelter's seat and pulled out a chrome gun
and wanted all Clodfelter's money. Clodfelter was able to run from
the car. Clodfelter attempted to sell the cell phone, which was later
identified as Baugh's phone. Clodfelter identified appellant out of a
photo array, identified him in court and identified a picture of
Baugh's car as the one appellant was driving.
On September 2, 2002, a Columbus police officer saw Baugh's
Honda traveling on Wilson Avenue and started to pursue it. After a
high-speed chase, appellant hit another vehicle at the intersection of
Broad Street and James Road. Appellant exited the car and ran. The
police officer caught appellant, who continued to struggle and had a
baggy of crack cocaine in his hand.
Appellant testified in his own defense. He stated that he met Baugh
at the Heritage Festival where they exchanged telephone numbers,
but he lost her number. On August 20, 2002, he was in Baugh's
neighborhood, looking for his cousin's apartment when he saw her
drive by him and wave. He went to her apartment and she let him
inside. They began talking and kissing, and had sex on the couch. He
did not have a gun or weapon. While Baugh took a shower, he stole
her purse, cell phone, computer and car. He sold the cell phone to
Clodfelter for money, not drugs, and he sold the laptop computer. On
3
September 2, 2002, he was driving Baugh's car, attempted to flee
from the police and had an accident.
State v. Wade, No. 03AP-774, 2004 WL 1688434, at *1-3 (Ohio App. 10th Dist. July 29, 2004).
Petitioner filed a timely appeal in which he raised the following assignments of error:
1.
The court of common pleas erred and deprived DefendantAppellant of his right to a speedy trial under R.C. 2945.71,
U.S. Const. Amend. VI and XIV, and Ohio Const. art. I, § 10
when it denied his pretrial motion for discharge for failure of
the prosecution to bring him to trial within the period
provided by law.
2.
Defendant-Appellant was denied his right to due process and
a fundamentally fair trial under U.S. Const. amend. V and
XIV and Ohio Const. art. I, § 16 as a result of the prosecutor's
improper and/or misleading questions and remarks during
cross-examination and/or closing arguments to the jury in the
following respects: (a) the prosecutor used the fact of defense
counsel's employment of a non-testifying DNA consultant as
the basis for accusing Defendant-Appellant of changing his
defense to the rape, kidnapping, and burglary charges from
one of misidentification to one of consent; (b) the prosecutor
cited the absence of any negative testimony regarding the
prosecuting witness's chasteness or character as a basis for
unfairly bolstering her credibility in the eyes of the jury; (c)
the prosecutor urged the jury to consider the reporting
officer's opinion regarding the truthfulness of the prosecuting
witness's report of a rape as evidence of DefendantAppellant's guilt, and (d) the prosecutor inflamed the passions
of the jury by calling Defendant-Appellant a “terrorist.”
3.
Defendant-Appellant was deprived of his right to be present
and to the presence and assistance of his counsel during a
critical stage of his jury trial, and his right to due process and
a fundamentally fair jury trial under the U.S. Const. amend.
V, VI and XIV, Ohio Const. art. I, §§ 5, 10 and 16 of the
Ohio Constitution, and Crim.R. 43(A) as a result of: (a) his
exclusion from the proceedings involving the preparation and
submission of responses to the jury's questions, (b) the
absence of counsel during those proceedings, (c) the
irregularities in the procedures employed by the court of
4
common pleas in responding to the jury's questions, and (d)
the incorrect, incomplete, and/or confusing responses to those
questions.
4.
The entry of separate convictions and consecutive prison
sentences for two counts of theft and one count of receiving
stolen property involving the same victim and the same
occurrence contravened R.C. 2913.61(C) and R.C. 2941.25
and subjected Defendant-Appellant to multiple punishments
for the same crime in violation of his rights under the Double
Jeopardy Clauses of the U.S. Const. amend. V and XIV and
Ohio Const. art. I, § 10.
5.
Defendant-Appellant was denied his right to the effective
assistance of counsel guaranteed to him under U.S. Const.
amend. VI and XIV as a result of the following omissions by
trial counsel: (a) failure to seek reopening of the hearing on
the pretrial speedy trial motion based on additional
information disclosed for the first time at trial, (b) failure to
challenge testimonial and documentary opinion evidence
regarding the veracity of the putative victim's account of rape,
(c) failure to object to the improper questions and remarks by
the prosecutor that are the subject of Assignment of Error No.
2, and (d) failure to request merger of the two theft
convictions.
6.
Defendant-Appellant's convictions for rape, kidnapping, and
aggravated burglary are not supported by evidence sufficient
to satisfy the requirements of due process under U.S. Const.
amend. V and XIV; or, alternatively, are against the manifest
weight of the evidence.
7.
The aggregate 26 year prison term to which DefendantAppellant was sentenced violated his statutory rights under
R.C. Chap. 2929 and his right of due process under U.S.
Const. amend. V and XIV and Ohio Const. art. I, § 16 for the
reason that the record clearly and convincingly establishes
that the evidence and the findings and reasons recited by the
court of common pleas do not support (a) the imposition of
maximum prison terms for each offense of conviction and (b)
the consecutive service of those prison terms. In accordance
5
with App.R. 5(C)(2), Defendant-Appellant states that the
aggregate prison term exceeds the maximum prison term for
the most serious offense of conviction and moves this Court
for leave to appeal his consecutive prison terms pursuant to
R.C. 2953.08(C).
8.
The adjudication that Defendant-Appellant is a sexual
predator is not supported by the common pleas court's
findings and is not supported by sufficient evidence.
Id. at *1-2. On July 24, 2004, the state appellate court sustained Petitioner’s third assignment of
error, reversed his convictions, and remanded the case to the trial court for a re-trial. Id.
On remand during the second jury trial, appellant sought to prohibit
the State from admitting any testimony indicating that he possessed
a gun during the commission of these offenses. He argued that
allowing such testimony would be inconsistent with his acquittal for
aggravated robbery in the first trial because the jury in the first trial
determined that he did not possess a gun during the offenses. The
trial court disagreed and permitted the State to introduce evidence
that appellant used a gun to commit the offenses against C.B. During
the second trial, C.B. again testified that appellant forced his way into
her apartment and raped her at gunpoint. She also testified that
appellant stole her car and a number of other items. Appellant again
admitted that he stole items from C.B.'s apartment as well as her car.
He also admitted that he fled from the police and that he possessed
cocaine when he was arrested. Appellant again denied, however, that
he raped C.B and that he had a gun. Instead, he claimed that he met
C.B. months before at a festival and that they had consensual sex that
day inside her apartment.
The jury rejected appellant's defense and found him guilty of all
counts.FN1 The trial court designated appellant a sexual predator and
sentenced him accordingly.
FN1. Because the first jury acquitted appellant of aggravated robbery
and determined that he did not use a gun, appellant was not tried for
aggravated burglary or any of the firearm specifications in his second
trial.
6
State v. Wade, No. 06AP-644, 2008 WL 366143, at *2 (Ohio App. 10th Dist. Feb. 12, 2008).
Petitioner filed a timely appeal in which he raised the following assignments of error:
1.
COLLATERAL ESTOPPEL BARRED THE ADMISSION
OF EVIDENCE ASSERTING THAT APPELLANT
POSSESSED AND BRANDISHED A GUN. THE TRIAL
COURT'S FAILURE TO EXCLUDE THIS EVIDENCE
DENIED APPELLANT HIS RIGHT TO A FAIR TRIAL,
DUE PROCESS, AND THE EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE FIFTH, SIXTH,
EIGHTH AND FOURTEENTH AMENDMENTS AND
VIOLATED THE DOUBLE JEOPARDY CLAUSE OF THE
FIFTH AND FOURTEENTH AMENDMENTS AS WELL
AS ARTICLE I, § 2, 9, 10, & 16 OF THE OHIO
CONSTITUTION.
2.
THE ADMISSION OF THE GUN EVIDENCE AS OTHER
ACTS EVIDENCE VIOLATED WADE'S RIGHT TO A
FAIR TRIAL AND DUE PROCESS AND VIOLATED THE
DOUBLE JEOPARDY CLAUSE OF THE FIFTH AND
FOURTEENTH AMENDMENT. IN ADDITION, THE
TRIAL COURT FAILED TO PROPERLY INSTRUCT THE
JURY ON THE PROPER LIMITATIONS OF OTHER
ACTS EVIDENCE THEREBY VIOLATING WADE'S
RIGHTS TO A FAIR TRIAL.
3.
THE PROSECUTOR HAS AN OBLIGATION TO SEEK
JUSTICE AND TO REFRAIN FROM UNFAIRLY
SEEKING A CONVICTION BASED ON IMPROPER
EVIDENCE, IMPROPER ARGUMENT AND OTHER
MISCONDUCT UNDER THE FIFTH, SIXTH, EIGHTH
AND FOURTEENTH AMENDMENTS AND ARTICLE I,
§§ 2, 9, 10, & 16 OF THE OHIO CONSTITUTION.
4.
THE REPRESENTATION PROVIDED TO DAVID WADE
FELL FAR BELOW THE PREVAILING NORMS FOR
COUNSEL IN A CRIMINAL CASE, WAS
UNREASONABLE, AND AFFECTED THE OUTCOME IN
VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND
FOURTEENTH AMENDMENTS AS WELL AS ART. I, §
2, 9, 10, & 16 OF THE OHIO CONSTITUTION.
7
5.
THE ADJUDICATION THAT DEFENDANT-APPELLANT
IS A SEXUAL PREDATOR IS NOT SUPPORTED BY THE
COMMON PLEAS COURT'S FINDINGS AND IS NOT
SUPPORTED BY SUFFICIENT EVIDENCE.
6.
A TRIAL COURT MAY NOT SENTENCE A
DEFENDANT TO NON-MINIMUM AND CONSECUTIVE
SENTENCES WITHOUT VIOLATING A DEFENDANT'S
CONSTITUTIONAL RIGHTS AS GUARANTEED BY THE
FIFTH, SIXTH, EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, § 10 AND 16 OF THE
OHIO CONSTITUTION. THE DECISION RENDERED BY
THE SUPREME COURT OF OHIO IN STATE V. FOSTER
(2006), 109 OHIO ST.3D 1, IS INCOMPATIBLE WITH
THE CONTROLLING PRECEDENT OF THE UNITED
STATES SUPREME COURT AND MUST BE REJECTED.
7.
THE TRIAL COURT VIOLATED WADE'S RIGHTS
UNDER THE EX POST FACTO CLAUSE OF THE
FEDERAL CONSTITUTION BY SENTENCING
APPELLANT TO A TERM OF INCARCERATION WHICH
EXCEEDED THE MAXIMUM PENALTY AVAILABLE
UNDER THE STATUTORY FRAMEWORK AT THE
TIME OF THE OFFENSE. THE DECISION RENDERED
BY THE SUPREME COURT OF OHIO IN STATE V.
FOSTER (2006), 109 OHIO ST.3D 1, WHICH PURPORTS
TO AUTHORIZE THE SENTENCE RENDERED
AGAINST DAVID WADE, IS INCOMPATIBLE WITH
THE CONTROLLING PRECEDENT OF THE UNITED
STATES SUPREME COURT AND MUST BE REJECTED.
8.
THE TRIAL COURT VIOLATED APPELLANT'S RIGHTS
UNDER THE FOURTEENTH AMENDMENT TO THE
FEDERAL CONSTITUTION BY SENTENCING
APPELLANT PURSUANT TO THE DECISION
RENDERED BY THE SUPREME COURT OF OHIO IN
STATE V. FOSTER (2006), 109 OHIO ST.3D 1, BECAUSE
THE HOLDING OF FOSTER IS INVALID UNDER
ROGERS V. TENNESSEE (2001), 532 U.S. 451.
Id. at *2-3. On February 12, 2008, the appellate court sustained in part Petitioner’s second
8
assignment of error, in which he asserted that the trial court erred by failing to issue a jury
instruction indicating Petitioner’s use of a gun could not be considered to establish the force element
of rape, as he had been acquitted of using a gun in his first trial, and reversed the judgment of the
trial court. Id. On April 15, 2008, however, the appellate court granted the State’s motion for
reconsideration, and reversed only Petitioner’s convictions on rape and aggravated burglary,
remanding those convictions to the trial court for a re-trial. The appellate court addressed
Petitioner’s remaining assignments of error, and affirmed his remaining convictions and sentences
on kidnapping, robbery, theft, receiving stolen property, failure to comply with an order of a police
officer, and possession of cocaine. Id. On August 8, 2008, the Ohio Supreme Court denied the
State’s motion for leave to appeal and denied Petitioner’s cross appeal as not involving any
constitutional question. Exhibit 6 to Return of Writ. On January 9, 2009, the Ohio Supreme Court
dismissed Petitioner’s subsequent appeal. Exhibit 8 to Return of Writ.
Petitioner subsequently pleaded guilty pursuant to the terms of his negotiated plea agreement
to rape. The prosecution dismissed the aggravated burglary charge. The trial court sentenced
Petitioner pursuant to the joint recommendation of the parties, to three years incarceration, such
sentence to be served concurrently to the fifteen year term he is serving on his other convictions.
See State v. Wade, No. 10AP-159, 2010 WL 5543880 (Ohio App. 10th Dist. Dec. 28, 2010); Second
Notice of Status of Petitioner’s State Appeal, Exhibit 2, Doc. 39. Petitioner again filed an appeal in
which he challenged application of Senate Bill 10 to his sentence; and asserted that the trial court’s
imposition of separate sentences on rape and kidnapping violated the Double Jeopardy Clause; and
that he had been denied effective assistance of trial counsel because his attorney failed to object to
imposition of separate sentences on rape and kidnapping and the prosecutor’s attempt to add terms
9
to Petitioner’s sentence that were not set forth in his guilty plea agreement. See id. On December
28, 2010, the appellate court affirmed the trial court’s judgment. Id. Petitioner timely appealed to
the Ohio Supreme Court. The Ohio Supreme Court accepted the appeal, and on October 20, 2011,
reversed the decision of the Court of Appeals, remanding the case for consideration pursuant to State
v. Williams, 129 Ohio St.3d 344 (2011)(holding that Ohio’s Senate Bill 10 is not to be applied to
defendants who committed sex offenses prior to its enactment). See Fourth Notice of Status of
Petitioner’s Appeal, Doc. 41.
Meanwhile, on July 14, 2008, Petitioner filed an application to reopen his appeal pursuant
to Ohio Appellate Rule 26(B). He asserted that he had been denied the effective assistance of
appellate counsel because his attorney failed to raise on appeal a claim that the trial court improperly
sentenced him on rape and kidnapping due to a lack of separate animus on these charges, that his
two theft convictions were allied offenses of similar import, and that trial counsel performed in a
constitutionally ineffective manner by failing to request a limiting instruction on firearm testimony
in regard to charges other than rape. See Exhibit 15 to Return of Writ. On September 25, 2008, the
appellate court denied Petitioner’s Rule 26(B) application. Id. On January 28, 2009, the Ohio
Supreme Court dismissed Petitioner’s appeal. Exhibit 19 to Return of Writ.
On July 21, 2009, Petitioner filed the instant pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.1 He alleges that he is in the custody of the Respondent in violation
of the Constitution of the United States based upon the following grounds:
1
The Court issued a stay of proceedings until January 31, 2010. See Doc. 24.
10
1.
Collateral estoppel barred the admission of evidence asserting
that appellant possessed and brandished a gun. The trial
court’s failure to exclude this evidence denied Wade his right
to a fair trial, due process, and the effective assistance of
counsel as guaranteed by the Fifth, Sixth, Eighth and
Fourteenth Amendments and violated the Double Jeopardy
Clause of the Fifth and Fourteenth Amendments. . . .
2.
The admission of the gun evidence as other acts evidence
violated Wade’s right to a fair trial [], and due process and
violated the Double Jeopardy Clause of the Fifth and
Fourteenth Amendment in addition, the trial court failed to
properly instruct the jury on the proper limitations of other
acts evidence thereby violating Wade’s rights to a fair trial.
3.
The prosecutor has an obligation to seek justice and to refrain
from unfairly seeking a conviction based on improper
evidence, improper argument and other misconduct under the
Fifth, Sixth, Eighth and Fourteenth Amendments. . . .
4.
The representation provided to Wade fell far below the
prevailing norms for counsel in a criminal case, was
unreasonable, and affected the outcome in violation of the
fifth, Sixth, eighth, and Fourteenth Amendments. . . .
5.
A trial court may not sentence a defendant to non-minimum
and consecutive sentences without violating a defendant’s
constitutional rights as guaranteed by the Fifth, Sixth, Eighth,
and Fourteenth Amendments. . . . The decision rendered by
the Supreme Court of Ohio in State v. Foster (2006), 109
Ohio St.3d 1, is incompatible with the controlling precedent
of the United States Supreme Court and must be rejected.
6.
Because the State failed to prove the existence of an animus
for kidnapping separate from the animus to commit rape and
merged the two charges as allied offenses of similar import,
they are merged for all purposes and the reversal of one
requires the reversal of both under the Fifth, Sixth, Eighth,
and Fourteenth Amendments. . . .
11
7.
Petitioner was denied the effective assistance of appellate
counsel for failing to raise on appeal a claim that2 the trial
court erred by entering a separate judgment of conviction and
corresponding sentences for both rape and kidnapping in
violation of Ohio Rev. Code 2941.25 and the Double
Jeopardy Clause, and Art. I, 2, 10, and 16, and the Fifth,
Sixth, and Fourteenth Amendments. The trial court was
required to merge the kidnapping count after the State
“elected” to pursue the rape offenses.
8.
Petitioner was denied the effective assistance of appellate
counsel for failing to raise on appeal a claim that trial
counsel’s failure to request a limiting instruction regarding
the gun evidence for the kidnapping offense fell far below the
prevailing professional norms, was unreasonable and affected
the outcome of Wade’s trial in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments. . . .
9.
Petitioner was denied the effective assistance of appellate
counsel for failing to raise on appeal a claim that the trial
court erred by failing to exclude the acquitted gun evidence
under evidence Rule 403(A), where the danger for unfair
prejudice against Wade clearly and plainly outweighed the
probative value violating Wade’s due process rights and his
constitutional rights to a fair trial.
It is the position of the Respondent that Petitioner’s claims are procedurally defaulted or without
merit.
PROCEDURAL DEFAULT
CLAIMS ONE, TWO, THREE AND NINE
In recognition of the equal obligation of the state courts to protect the constitutional rights
2
On April 28, 2010, the Court granted Petitioner’s motion to amend his petition to
indicate that claims seven through nine raise claims of ineffective assistance of appellate
counsel. Doc. 32.
12
of criminal defendants, and in order to prevent needless friction between the state and federal courts,
a state criminal defendant with federal constitutional claims is required to present those claims to
the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the petitioner fails to
do so, but the state still provides a remedy to pursue, his or her petition is subject to dismissal for
failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S. 722, 731 (1991); Deitz v.
Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of a procedural default, the petitioner can no
longer present the relevant claims to a state court, the petitioner also waives the claims for purposes
of federal habeas review unless he or she can demonstrate cause for the procedural default and actual
prejudice resulting from the alleged constitutional error. Edwards v. Carpenter, 529 U.S. 446, 451
(2000); Coleman, 501 U.S. at 724; Murray v. Carrier, 477 U.S. 478, 485 (1986).
In the Sixth Circuit, a court must undertake a four-part analysis to determine whether
procedural default is a bar to a habeas petitioner’s claims. Maupin v. Smith, 785 F.2d 135, 138 (6th
Cir. 1986); see also Scuba v. Brigano, 259 F. App’x. 713, 718 (6th Cir. 2007) (following the fourpart analysis of Maupin). Specifically, the United States Court of Appeals for the Sixth Circuit
requires the district courts to engage in the following inquiry:
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. . . . 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.
Maupin, 785 F.2d at 138 (internal quotations omitted). Finally, if “the court determines that a state
procedural rule was not complied with and that the rule [has] an adequate and independent state
13
ground, then the petitioner” may still obtain review of his claims on the merits if he establishes: (1)
a substantial reason to excuse the default and (2) that he or she was actually prejudiced by the
alleged constitutional error. Id. "Cause" under this test “must be something external to the
petitioner, something that cannot fairly be attributed to him[;] . . . some factor external to the defense
[that] impeded [] efforts to comply with the State’s procedural rule.” Coleman, 501 U.S. at 753.
This “cause and prejudice” analysis also applies to failure to raise or preserve issues for review at
the appellate level or failure to appeal at all. Id at 750.
Nevertheless, “‘[i]n appropriate cases’ the principles of comity and finality that inform the
concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally unjust
incarceration.’” Murray, 477 U.S. at 495 (quoting Engle v. Isacc, 456 U.S. 107, 135 (1892)).
Petitioners who fail to show cause and prejudice for procedural default may nonetheless receive a
review of their claims if they can demonstrate that a court’s refusal to consider a claim would result
in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Lott v. Coyle, 261
F.3d 594, 601–02 (6th Cir. 2001) (same). The fundamental miscarriage of justice exception requires
a showing that “in light of the new evidence, no juror, acting reasonably, would have voted to find
him guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 329 (1995).
The Court of Appeals for the Sixth Circuit has consistently held that Ohio's doctrine of res
judicata, i.e., the Perry rule, is an adequate ground for denying federal habeas relief. Lundgren v.
Mitchell, 440 F.3d 754, 765 (6th Cir.2006); Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir.
2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir.2000); Byrd v. Collins, 209 F.3d 486, 521-22
(6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir.1998). The doctrine of res judicata
is stated in unmistakable terms in countless Ohio decisions, and Ohio courts have consistently
14
refused, in reliance on that doctrine, to review the merits of claims. State v. Cole, 2 Ohio St.3d at
112; State v. Ishmail, 67 Ohio St.2d at 16. Further, the doctrine of res judicata serves the state's
interest in finality and in ensuring that claims are adjudicated at the earliest possible opportunity.
With respect to the independence prong, the Court concludes that res judicata does not rely on or
otherwise implicate federal law.
In claim nine, Petitioner asserts he was denied effective assistance of appellate counsel
because his attorney failed to raise on appeal a claim that the trial court should have excluded
evidence regarding Petitioner’s use of a gun under Ohio Rule of Evidence 403(A). Petitioner failed
to raise this claim in his application for reopening of his appeal pursuant to Ohio Appellate Rule
26(B). See Exhibit 15 to Return of Writ. He may now no longer do so, under Ohio’s doctrine of res
judicata. See State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981);
State v. Perry, 10 Ohio St.2d 175 (1967).
In claims one and two, Petitioner asserts that collateral estoppel and the Double Jeopardy
Clause barred admission of evidence, in regard to his convictions on kidnapping, robbery, theft,
receiving stolen property, failure to comply with an order of a police officer and possession of
cocaine, that he possessed and brandished a gun at his second trial after he had been acquitted of use
of a firearm in his first trial and without issuance of a jury instruction limiting the use of firearm
evidence. Petitioner asserts that he thereby was denied a fair trial. The state appellate court initially
reversed all of Petitioner’s convictions on this basis in relevant part as follows:
[A]ppellant contends that the trial court erred by admitting testimony
indicating that he used a gun during the commission of the rape when
the jury in his first trial necessarily found that he did not possess a
gun. Appellant also contends that the trial court erred by not giving
a limiting instruction to the jury after the trial court admitted
15
testimony that appellant raped C.B. at gunpoint.
The Double Jeopardy Clause of the Fifth Amendment of the United
States Constitution incorporates the doctrine of collateral estoppel.
Ashe v. Swenson (1970), 397 U.S. 436, 445-446, 90 S.Ct. 1189.
[FN2] Simply put, collateral estoppel means that when an issue of
ultimate fact has been determined by a valid and final judgment, that
issue cannot be litigated again between the same parties in any future
lawsuit. Id. at 443; State v. Lovejoy (1997), 79 Ohio St.3d 440, 442.
FN2. The Fifth Amendment's Double Jeopardy
protections are enforceable against the States through
the Fourteenth Amendment. Ashe, at 437.
Collateral estoppel may affect successive prosecutions in one of two
ways. United States v. Brackett (C.A .5, 1997), 113 F.3d 1396, 1398.
First, it will completely bar a subsequent prosecution if one of the
facts necessarily determined in the former trial is an essential element
of the subsequent prosecution. For example, in Ashe, a defendant
charged with the robbery of six people at a poker party was found not
guilty of one of the robberies. The only contested issue at trial was
whether Ashe was one of the robbers. The jury concluded that he was
not. The state subsequently tried Ashe for the robbery of another
person at the poker party. The United States Supreme Court held that
because the jury in the first trial necessarily found that Ashe was not
one of the robbers, the state could not prosecute him again, because
a second prosecution would require the relitigation of that issue. Id.
at 446; see, also, Columbus v. Rodriquez (Nov. 7, 1996), Franklin
App. No. 96APC05-601 (noting that collateral estoppel may bar
second prosecution).
Secondly, collateral estoppel can also bar certain evidence in a
subsequent trial. The doctrine prohibits the government from
relitigating an issue of ultimate fact that was determined by a valid
and final judgment. Dowling v. United States (1990), 493 U.S. 342,
347, 110 S.Ct. 668. This prohibition, however, does not exclude, in
all circumstances, relevant and probative evidence otherwise
admissible simply because it relates to alleged criminal conduct for
which a defendant has been acquitted. Id. at 348.
16
Evidence of alleged criminal conduct for which a defendant has been
acquitted may be admitted in a second trial where the ultimate issue
of fact decided in defendant's favor in the first trial is not an ultimate
issue of fact in the second trial. Wright v. Whitley (C.A.5, 1994), 11
F.3d 542, 546; Brackett, supra; United States v. Bailin (C.A.7, 1992),
977 F.2d 270, 280 (preclusion applied only where issue is ultimate
issue in subsequent prosecution); State v. Cotton (La.2001), 778
So.2d 569, 576 (no preclusion where prior acquitted conduct not
ultimate issue in second trial); Eatherton v. State (Wyo.1991), 810
P.2d 93, 100 (evidence of theft charge for which defendant was
acquitted properly admitted in subsequent burglary trial where
previous acquittal did not determine ultimate issue in burglary trial).
For example, in Santamaria v. Horsley (C.A.9, 1998), 133 F.3d 1242,
the defendant was charged with murder and robbery as well as a
weapon enhancement which alleged that he used a knife in the
commission of a felony. He was found guilty of murder and robbery
but acquitted of the weapon enhancement. After an appeals court
reversed those convictions, on remand the defendant sought to
prohibit the prosecution from retrying him on the theory that he used
a knife during the murder. The trial court agreed and prohibited the
state from proceeding on that theory. After the California Supreme
Court reversed, the United States Ninth District Court of Appeals, on
a petition for a writ of habeas corpus, held in part that because the
State was not required to prove beyond a reasonable doubt that the
defendant used a knife in order to convict the defendant of murder in
the second trial, the use of a knife was not an ultimate fact in the
second trial. Thus, the state could present evidence that the defendant
stabbed the victim. Id. at 1247.
Similarly, an issue may be relitigated in a second trial where the later
action is governed by a lesser standard of proof. Dowling. For
example, evidence of a prior bad act for which a defendant was
acquitted may be introduced at a second trial under Evid.R. 404(B)
to prove, among other things, identity. Such evidence is admissible
because the State is not trying the defendant for the bad act in the
second trial. Id. (evidence that defendant later committed home
invasion, even though he was acquitted of the robbery, could be
introduced at a later trial for earlier bank robbery to prove identity);
Charles v. Hickman (C.A .9, 2000), 228 F.3d 981, 986 (testimony
regarding previously acquitted charge of murder properly admitted
to prove motive in subsequent trial); In re Burton, 160 Ohio App.3d
750, 2005-Ohio-2210, at ¶ 14.
17
The case at bar does not involve the successive prosecution theory of
collateral estoppel. At his second trial, appellant was not tried for
aggravated robbery or any gun specifications. Here, the issue is
whether or not collateral estoppel prohibited the admission of
testimony in his second trial that appellant possessed a gun. We
review the trial court's application of collateral estoppel de novo.
Charles, at 985; Bailin, at 281 (de novo review of collateral estoppel
decision) cf. United States v. Dakota (C.A.6, 2000), 197 F.3d 821,
826 (claims of double jeopardy reviewed de novo).
To determine whether collateral estoppel bars the admission of
evidence that appellant used a gun during the commission of these
offenses, we must first determine whether the jury in the first trial
necessarily found that appellant did not possess a gun. Thus, we must
examine the record of the prior proceeding, taking into account the
pleadings, evidence, charge, and other relevant matters, and decide
whether the jury could have reached its verdict without finding that
appellant did not possess a gun. Id.; Bailin, at 280 (court must decide
whether a rational jury could have grounded its verdict on an issue
other than that which the defendant seeks to foreclose from
consideration). The defendant bears the burden to prove that the issue
was necessarily resolved by the prior jury. Dowling, at 350.
The State contends that the not guilty verdict in the first trial for the
aggravated robbery count as well as the firearm specifications did not
actually determine that appellant did not use a gun, because the jury
could have acquitted appellant for other reasons. We disagree. The
elements of aggravated robbery require that appellant attempt or
commit a theft offense while possessing a deadly weapon. R.C.
2911.01. Appellant admitted to stealing C.B.'s car, computer, purse,
and phone. Thus, the only conceivable reason for the jury's acquittal
on this count was a finding that appellant did not possess a gun
during the theft. Additionally, the jury asked during its deliberations
whether appellant must have had a deadly weapon to find him guilty
of aggravated robbery. The trial court replied in the affirmative. The
jury then acquitted appellant of aggravated robbery and all of the
firearm specifications. It is clear that the first jury actually decided
that appellant did not possess a gun during the offenses and it is not
conceivable that a rational jury could have grounded its verdict on
any other issue. [FN3] Ashe, at 444.
FN3. The State argues that the first jury may have
18
acquitted appellant because the gun was not operable.
We reject that claim based on the jury's own question
as well as the fact that no evidence or argument was
presented in the first trial on this issue. In order to
determine what issue was actually litigated in the first
trial, we do not apply the rule of collateral estoppel
with a “hypertechnical and archaic approach” but
with “realism and rationality.” Ashe, at 444.
Next, we must determine whether the issue necessarily decided in the
first trial (that appellant did not have a gun) is an ultimate issue in the
subsequent trial. To find appellant guilty of rape or kidnapping, the
State had to prove beyond a reasonable doubt that appellant forcibly
engaged in sexual conduct with C.B. and restrained her liberty using
force. See R.C. 2907.02 and 2905.01. Force is defined as “any
violence, compulsion, or constraint physically exerted by any means
upon or against a person or thing.” R.C. 2901.01(A)(1). The
definition of force does not require the use of a weapon. Therefore,
the State could prove these offenses without proving that appellant
used a gun.
Admittedly, testimony indicating appellant had a gun could be used
to prove the force element of both rape and kidnapping. However, the
jury's general verdict of guilty does not provide insight as to what
facts the jury believed in this trial to find appellant guilty of rape and
kidnapping. There are other ways to establish the element of force for
these offenses. Here, there was evidence that C.B. was less than five
feet tall and that appellant was six feet tall, weighed 170 pounds and
that he forced his way into her apartment. We also note that although
the first jury determined that appellant did not have a gun, it
nevertheless found appellant guilty of rape and kidnapping, thereby
finding the element of force beyond a reasonable doubt even without
a gun. Thus, the State was not precluded from admitting evidence that
appellant possessed a gun during the offenses, provided that the
testimony was otherwise admissible. Dowling, at 348. [FN4]
FN4. Appellant's reliance on Rice v. Marshall (C.A.6,
1987), 816 F.2d 1126 is misplaced. First, we note that
the case dealt with an ineffective assistance of counsel
claim. Secondly, although the court did note, relying
on Ashe, supra, that a previous acquittal of a weapon
charge constituted a finding that he did not have a gun
19
and precluded the introduction of contrary evidence at
a subsequent trial, that case was decided before
Dowling clarified the scope of the Ashe holding.
We further find that the testimony that appellant possessed a gun
during these offenses was admissible. Evidence of appellant's actions
during the offenses is admissible if the evidence is “inextricably
related” to the crime charged and plays a role in explaining the
sequence of events and gives a complete picture of the alleged crime.
State v. Thompson (1981), 66 Ohio St.2d 496, 498; State v. Henry,
Franklin App. No. 05AP-1075, 2006-Ohio-4783, at ¶ 27. Testimony
that appellant possessed a gun during the offenses is inextricably
related to the charges and provides a complete picture of the
sequence of events. See State v. Jackson, Franklin App. No.
02AP-867, 2003-Ohio-6183, at ¶ 31. The jury was entitled to a
complete picture of the alleged crimes. The trial court did not err by
admitting testimony indicating that appellant possessed a gun during
these offenses. [FN5]
FN5. We do not agree with the trial court that
evidence that appellant used a gun during these
offenses was properly admitted as “other acts”
evidence under Evid.R. 404(B) because the evidence
was not admitted to prove any of the permissible
purposes under that rule. Nevertheless, for the reasons
discussed, the evidence was admissible on other
grounds.
Finally, appellant contends that the trial court erred by not giving the
jury a limiting instruction regarding the gun testimony. Appellant did
not request that the trial court instruct the jury that he had previously
been acquitted of possessing a gun during the commission of the
offenses. Instead, he requested that the trial court instruct the jury that
it could not consider the gun testimony to determine whether he used
force in the rape. The trial court denied appellant's request. It is
well-established that a trial court has broad discretion in instructing
the jury. State v. Simpson, Franklin App. No. 01AP-757,
2002-Ohio-3717, at ¶ 84, citing State v. Smith (Apr. 2, 2002),
Franklin App. No. 01AP848.
20
Collateral estoppel did not bar the admission of testimony indicating
appellant had a gun during the commission of the offenses. Further,
that testimony was admissible to provide the jury a full and complete
picture of the sequence of events the victim described. However, the
State did not present the testimony simply to provide the jury with a
complete picture of the events. During the State's questioning of C.B.,
the prosecutor referred to appellant's possession of a gun during the
rape a number of times, implying that appellant used the gun to
commit the rape. In closing arguments, the prosecutor referred to the
rape charge and reminded the jury that “the Defendant had a weapon
while committing that offense.” It is clear that the State used the gun
testimony to prove that appellant used force to commit the rape.
[FN6]
FN6. The prosecutor also told the jury, in regards to
the kidnapping charge, that C.B. would have left the
apartment but for the fact that appellant had a gun.
Although collateral estoppel did not prohibit the admission of
testimony indicating that appellant possessed a gun, the principle
underlying that doctrine requires a limiting instruction such as the
one appellant requested. Cf. Rossetti v. Curran (D.Mass.1995), 891
F.Supp 36, 47 (noting concerns underlying doctrine). The principle
is that one who has been acquitted of a crime should not be forced to
“run the gauntlet” a second time. Ashe, at 446. Cf. Rossetti, quoting
Dowling (“If there ever was the likelihood that such evidence would
create the ‘constitutionally unacceptable risk that the jury will convict
... on the basis of inferences drawn from the acquitted conduct,’ it is
this case.”). The danger of this occurring in this case was high.
Absent a limiting instruction, there was a significant danger that the
jury in the second trial would find the element of force for rape based
upon evidence that the appellant had a gun, even though the jury in
the first trial necessarily found that appellant did not possess a gun
during the offenses. Appellant's requested limiting instruction would
have allowed C.B. to describe her version of the events but would
have prevented the jury from using the evidence that appellant had a
gun to find the element of force for a rape conviction. The trial court
abused its discretion by not instructing the jury that it could not
consider the gun testimony in determining whether appellant used
force while committing the rape offense. [FN7]
21
FN7. Although we have previously referred to
evidence other than the gun testimony that could
support a finding of force in this case, that evidence
was minimal. There is a substantial likelihood that the
jury considered appellant's alleged use of a gun in
finding the element of force. Thus, we cannot say that
the trial court's error was harmless. See State v.
Ganelli, Cuyahoga App. No. 84694, 2005-Ohio-770,
at ¶ 28.
Appellant's first assignment of error is overruled. However, because
the trial court erred by not providing the limiting instruction
requested by appellant, we sustain in part appellant's second
assignment of error. Our resolution of appellant's second assignment
of error renders appellant's remaining assignments of error moot.
App.R. 12(A). This matter is remanded to the Franklin County Court
of Common Pleas for further proceedings consistent with law and this
opinion.
State v. Wade, 2008 WL 366143, at *3-7. However, the Ohio Tenth District Court of Appeals
thereafter granted the State’s motion for reconsideration, reversing only Petitioner’s convictions on
rape and aggravated burglary, and reviewing the remainder of his convictions for plain error only,
due to Petitioner’s failure to object:
Appellant did not request a limiting instruction for the gun testimony
for any count other than the rape count. Therefore, he waived any
error in the trial court's failure to provide such an instruction absent
plain error. State v. Rawls, Franklin App. No. 03AP-41,
2004-Ohio-836, at ¶ 21; State v. Riley, Franklin App. No.
06AP-1091, 2007-Ohio-4409, at ¶ 4; State v. Mitchell, Cuyahoga
App. No. 88977, 2007-Ohio-6190, at ¶ 84. “ ‘Plain error is an
obvious error * * * that affects a substantial right.’” State v.
Yarbrough, 95 Ohio St.2d 227, 2002-Ohio-2126, at ¶ 108, quoting
State v. Keith (1997), 79 Ohio St.3d 514, 518. An alleged error
constitutes plain error only if the error is obvious and, but for the
error, the outcome of the trial clearly would have been different.
Yarbrough, at 108. Notice of plain error is taken with the utmost
caution only under exceptional circumstances and only where
necessary to prevent a miscarriage of justice. State v. Martin,
22
Franklin App. No. 02AP-33, 2002-Ohio-4769, at ¶ 28.
We first address appellant's kidnapping conviction. To convict
appellant of kidnapping, the State had to prove beyond a reasonable
doubt that appellant, by force, threat, or deception, removed the
victim from a place or restrained her liberty to facilitate any felony
or flight thereafter or to engage in sexual activity with the victim
against her will. R.C. 2905.01.
Here, appellant forcibly pushed his way in through the front door and
stood in between the victim and the front door, thereby blocking the
victim's exit from the apartment. There was evidence that appellant
was much taller and heavier than the victim. In light of this evidence,
a reasonable jury could have concluded that even without the
evidence of the gun, appellant, by force or threat, restrained the
victim's liberty in order to facilitate the commission of a felony or to
engage in sexual activity with the victim. Therefore, we cannot say
that the outcome of his kidnapping conviction clearly would have
been different but for a limiting instruction as to the gun testimony.
Cf. State v. Litreal, 170 Ohio App.3d 670, 2006-Ohio-5416, at ¶ 24
(any error in admitting testimony not plain error where remaining
evidence was sufficient for rational trier of fact to find defendant
guilty).
***
[As to] gun testimony . . . on his convictions for robbery, theft,
receiving stolen property, failure to comply with an order of a police
officer, and possession of cocaine. . . [t]hese counts were either
admitted by appellant or committed days after the rape and
kidnapping. The trial court did not commit plain error when it did not
provide a limiting instruction for the gun testimony on these counts.
State v. Wade, 2008 WL 1723671, at *1-3.
Turning to the instant Petition, Petitioner asserts in Claims 1 and 2 that the doctrines of
collateral estoppel and the Double Jeopardy Clause barred admission of evidence in his second trial
that he possessed and brandished a gun with respect to his convictions on kidnapping, robbery, theft,
23
receiving stolen property, failure to comply with an order of a police officer and possession of
cocaine because he had been acquitted of use of a firearm in his first trial. Petitioner asserts that
admission of this evidence at his second trial, without an accompanying limiting jury instruction,
violated his constitutional rights. As set forth above, however, Petitioner failed to object and the
court of appeals, therefore, reviewed these claims merely for plain error.
The United States Court of Appeals for the Sixth Circuit has held that plain error review does
not constitute a waiver of the state's procedural default rules. Seymour v. Walker, 224 F.3d 542, 557
(6th Cir.2000).
Ohio has a contemporaneous objection rule under which an appellant
who fails to object waives later review of the issue unless plain error
can be shown. Williams v. Bagley, 380 F.3d 932, 968 (6th Cir.2004),
cert. denied, 544 U.S. 1003, 125 S.Ct. 1939, 161 L.Ed.2d 779 (2005)
(citing State v. Smith, 89 Ohio St.3d 323, 332, 731 N.E.2d 645
(2000)). The Sixth Circuit has held that Ohio's contemporaneous
objection rule constitutes an adequate and independent state ground
barring federal review absent a showing of cause for the waiver and
resulting prejudice. Id.; Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir.
2001); Stojetz v. Ishee, 2006 WL 328155 *12 (S.D. Ohio Feb.10,
2006).
A state court's review of an issue for plain error is considered by the
Sixth Circuit as the enforcement of a procedural default. Williams,
380 F.3d at 968; Hinkle, 271 F.3d at 244. The federal court, in
determining whether a state court has relied on a procedural rule to
bar review of an issue, examines the latest reasoned opinion of the
state courts and presumes that later courts enforced the bar instead of
rejecting the claim on the merits. Hinkle, 271 F.3d at 244 (citing Ylst,
v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706
(1991)).
Adams v. Bradshaw, 484 F.Supp.2d 753, 771 (N.D. Ohio 2007). Therefore, Petitioner has waived
24
claims one and two for federal habeas corpus review.3
In claim three, Petitioner asserts, inter alia, that he was denied a fair trial due to improper
comments by the prosecutor during closing argument. Again, the state appellate court reviewed this
claim for plain error only, due to Petitioner’s failure to object:
Appellant also contends that the prosecutor made improper
statements during closing arguments. In general, prosecutors are
given considerable latitude in opening statement and closing
argument. State v. Ballew (1996), 76 Ohio St.3d 244, 255. In closing
argument, a prosecutor may freely comment on “ ‘what the evidence
has shown and what reasonable inferences may be drawn therefrom.”
‘ State v. Lott (1990), 51 Ohio St.3d 160, 165, quoting State v.
Stephens (1970), 24 Ohio St.2d 76, 82. Appellant did not object
during the prosecutor's closing argument. The failure to object to
alleged prosecutorial misconduct waives all but plain error. State v.
LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, at ¶ 126; State v. Loch,
Franklin App. No. 02AP-1065, 2003-Ohio4701, at ¶ 43.
Appellant specifically points to the prosecutor's statements in closing
argument that his resistance to police efforts to obtain a DNA sample
could be considered as an indicia of guilt, and that appellant only
came up with his version of events after he obtained results of the
DNA test. We have already determined that the refusal to provide a
DNA sample and the circumstances of that refusal could be used by
the State to demonstrate appellant's consciousness of guilt. Therefore,
3
Respondent did not raise this aspect of Petitioner’s procedural default and, as a general
rule, procedural default is an affirmative defense that must be raised by the state at the first
possible opportunity, or it will be waived. Trest v. Cain, 522 U.S. 87, 89 (1997) (holding that
state's failure to raise procedural default normally constitutes waiver of the default); Gray v.
Netherland, 518 U.S. 152, 166 (1996) (holding that procedural default is normally an affirmative
defense that will be waived if not raised). Although federal courts are not required to raise
procedural default sua sponte, Trest, 522 U.S. at 89, neither are they precluded from raising or
recognizing a procedural default that was not expressly raised by the state. That is especially true
where, as here, petitioner has the opportunity to respond to the procedural default in any
objections he files. Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), r'hng and r'hng en
banc denied July 6, 2005 (citing Lorraine v. Coyle, 291 F.3d 416, 426 (6th Cir .2002)); Elzy v.
United States, 205 F.3d 882, 886 (6th Cir. 2000).
25
the prosecutor could properly comment on that in closing argument.
Second, the prosecutor's comment about appellant's changing version
of events was a fair inference from the evidence presented at trial.
When interviewed by the police on September 2, 2002, appellant
denied any knowledge of an incident with the victim. Later, at his
first trial and again in this trial, appellant claimed that he previously
met the victim and that they had consensual sex. It was fair for the
prosecutor to infer, based on the evidence at trial, that appellant
altered his version of events based on information he obtained after
the September 2, 2002 interview. We find no plain error in regard to
these comments.
State v. Wade, 2008 WL 1723671, at *4. Again, because the court of appeals applied a plain error
standard, Petitioner has waived his claim of prosecutorial misconduct based on improper statements
during closing arguments, as set forth in claim three for federal habeas review. Seymour v. Walker,
224 F.3d at 557.
Petitioner thus has waived claims one through three and claim nine for federal habeas corpus
review.
Petitioner may still may obtain review of these claims on the merits, if he establishes cause
for his procedural default, as well as actual prejudice from the alleged constitutional violations.
Again, as set forth above, “‘[C]ause’ under the cause and prejudice test must be something external
to the petitioner, something that cannot fairly be attributed to him[;] ... some objective factor external
to the defense [that] impeded ... efforts to comply with the State's procedural rule." Maples v.
Stegall, 340 F.3d 433, 438 (6th Cir.2003) (quoting Coleman v. Thompson, 501 U.S. 722, 753
(1991)).
ASSISTANCE OF COUNSEL
DEFENSE TO DEFAULT OF CLAIMS ONE, TWO, THREE AND NINE
26
As cause for his procedural default of claim three, Petitioner asserts ineffective assistance
of his trial counsel. He also asserts, generally, in count four that his representation fell below
prevailing norms, and in claim eight that his appellate counsel was ineffective for failing to raise and
issue on appeal regarding trial counsel's failure to request a limiting instruction regarding the gun
evidence.
The constitutionally ineffective assistance of counsel may constitute cause for a procedural
default, so long as such claim has been presented to the state courts and is not, itself, procedurally
defaulted. Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000), citing Murray v. Carrier, 477 U.S.
478, 488-89 (1986).
Here, the state appellate court rejected Petitioner’s claim of ineffective assistance of counsel
based on his attorney’s failure to object to improper remarks by the prosecutor in closing argument
in relevant part as follows:
Appellant first argues that the prosecutor elicited improper and
irrelevant testimony describing how the police obtained a DNA
sample from appellant. Specifically, the lead detective in this case
was allowed to testify that appellant refused to provide a DNA
sample and that “99 times out of 100” defendants comply with
requests for DNA samples. The detective also testified about the
steps taken to obtain the sample from appellant once they obtained a
search warrant, including having the SWAT team restrain appellant.
Appellant claims this testimony solely was offered to inflame the jury
and to suggest he refused because he was guilty. The State claims
that the evidence was properly admitted to illustrate appellant's
consciousness of guilt. We agree.
“ ‘It is today universally conceded that the fact of an accused's flight,
escape from custody, resistance to arrest, concealment, assumption
of a false name, and related conduct, are admissible as evidence of
consciousness of guilt, and thus of guilt itself.’” State v. Williams
(1997), 79 Ohio St.3d 1, 11, quoting State v. Eaton (1969), 19 Ohio
27
St.2d 145, 160. Although no Ohio case has specifically addressed
whether or not the refusal to provide a DNA sample can be used as
evidence of consciousness of guilt, courts in other states have held
that the refusal to provide blood samples is admissible as evidence of
consciousness of guilt. See State v. Hernandez (2003), 117
Wash.App. 1081; People v. Roberts (Cal.1992), 826 P.2d 274, 310311.
Testimony that appellant refused to provide a DNA sample was
admissible as evidence of consciousness of guilt. The refusal suggests
that appellant was attempting to conceal his involvement in the
crime. See Williams; State v. Barton, Warren App. No. CA2005-03036, 2007-Ohio-1099, at ¶ 100 (accused's use of counter measures in
an attempt to defeat a polygraph examination may indicate
consciousness of guilt). The testimony describing the steps taken by
the police to obtain the sample from appellant was relevant to show
just how far appellant would go to conceal his involvement.
Columbus v. Dials, Franklin App. No. 04AP-1099, 2005-Ohio-6305,
at ¶ 46. Appellant attempted to blunt the impact of his refusal to
provide a DNA sample by offering another reason for his refusal. The
State did not engage in improper conduct by asking the detective
about appellant's refusal.4
***
. . . . It was fair for the prosecutor to infer, based on the evidence at
trial, that appellant altered his version of events based on information
he obtained after the September 2, 2002 interview. . . .
[A]ppellant contends that he received ineffective assistance of
counsel at his trial. We disagree.
In order to prevail on an ineffective assistance of counsel claim,
appellant must meet the two-prong test enunciated in Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, accord State v.
Bradley (1989), 42 Ohio St.3d 136, certiorari denied (1990), 497 U.S.
1011, 110 S.Ct. 3258. Initially, appellant must show that counsel's
performance was deficient. To meet that requirement, appellant must
4
The Court has already set out the analysis of the court of appeals with regard to
Petitioner's claim of prosecutorial misconduct and will not repeat it here.
28
show counsel's error was so serious that counsel was not functioning
as the “counsel” guaranteed by the Sixth Amendment. Appellant may
prove counsel's deficient conduct by identifying acts or omissions
that were not the result of reasonable professional judgment. The
court must then determine whether, in light of all the circumstances,
the identified acts or omissions were outside the wide range of
professionally competent assistance. Id. at 690.
If appellant successfully proves that counsel's assistance was
ineffective, the second prong of the Strickland test requires appellant
to prove prejudice in order to prevail. Id. at 692. To meet that prong,
appellant must show counsel's errors were so serious as to deprive her
of a fair trial, a trial whose result is reliable. Id. at 687. Appellant
would meet this standard with a showing “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 undermine confidence in the outcome.”
Id. at 694.
Appellant. . . claims that his trial counsel was ineffective for failing
to object to the instances of prosecutorial misconduct alleged in his
third assignment of error. We have already determined that the
conduct complained of was not prosecutorial misconduct.
Accordingly, counsel was not ineffective for failing to object to that
conduct. State v. Hairston (June 11, 1999), Montgomery App. No.
17218.
State v. Wade, 2008 WL 1723671, at *3-5.
The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. §
2254(e)(1) provides:
In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State
court, a determination of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
29
A federal habeas court may not grant relief unless the state court's decision was contrary to
or an unreasonable application of clearly established federal law, or based on an unreasonable
determination of the facts in light of the evidence that was presented. 28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
The United States Court of Appeals for the Sixth Circuit has summarized this standard as follows:
Under the “contrary to” clause, a federal habeas court may grant the
writ if the state court arrives at a conclusion opposite to that reached
by the Supreme Court on a question of law, or if the state court
decides a case differently than the Supreme Court on materially
indistinguishable facts. Under the “unreasonable application” clause,
a federal habeas court may grant the writ if the state court identifies
the correct legal principle from the Supreme Court's decisions but
unreasonably applies it to the facts of the petitioner's case.
Boykin v. Webb, 541 F.3d 638, 642 (6th Cir. 2008) (quoting Williams v. Taylor, 529 U.S. 362
(2000)). This standard is “difficult to meet,” as under the Antiterrorism and Effective Death Penalty
Act ("AEDPA"), federal habeas relief functions as a “ ‘guard against extreme malfunctions in the
state criminal justice systems,’ ”not as a means to correct errors. Greene v. Fisher, 132 S.Ct. 38,
43-44, 2011 WL 5335411, at *3-4 (Nov. 8, 2011)(citing Harrington v. Richter, 562 U.S. ––––, ––––,
30
131 S.Ct. 770, 786 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens, J.,
concurring in judgment)). In habeas corpus proceedings, “a state court's determination that a claim
lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court's decision.” Harrington v. Richter, 131 S.Ct. at 786. With these
standards in mind, the Court turns to the merits of Petitioner’s claim.
In Strickland v. Washington, the Supreme Court reiterated that the right to counsel
guaranteed by the Sixth Amendment is the “right to effective assistance of counsel.” 466 U.S. 668,
686 (1984.)
To prevail on a complaint of ineffective assistance of counsel, a petitioner must
demonstrate the following:
First, the defendant must show that counsel's performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that 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.
Id. at 687.
Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 130 S.Ct.
1473, 1485 (2010). "Establishing that a state court's application of Strickland was unreasonable
under § 2254(d) is all the more difficult. Both standards created by Strickland and § 2254(d) are
“highly deferential.” Strickland, 466 U.S. at 689. When Strickland and § 2254(d) "apply in tandem,"
review is "doubly" deferential. Knowles v. Mirzayance, 129 S.Ct., 1411, 1420 (2009).
Given the difficulties “inherent” the analysis of whether an attorney’s performance was
constitutionally deficient,“a court must indulge a strong presumption that counsel's conduct falls
31
within the wide range of reasonable professional assistance. . . .” Strickland, 466 U.S. at 687.
Nevertheless, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 692.
A petitioner, therefore, must show prejudice in order to prevail on a claim of ineffective assistance
of counsel. Id. at 693.
To do so, a petitioner must demonstrate that a reasonable probability exists that, but for
counsel's errors, the result of the proceedings would have been different. Id. at 694. "A reasonable
probability is a probability sufficient to undermine confidence in the outcome." Id. Because
Petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of
counsel, should the court determine that Petitioner has failed to satisfy one prong, it need not
consider the other. Id. at 697.
Petitioner asserts that the state appellate court’s decision denying this claim is unreasonable
because the appellate court failed to consider that he refused DNA testing because he wanted to
consult with his attorney. See Traverse, at 31-32. He complains that the prosecutor argued that the
jury could consider his resistance to submit to DNA testing and the change in his initial statement
to police after DNA testing, as indicia of his guilt.5 This evidence, however, was properly admitted
as was the prosecutor’s argument regarding reasonable inferences of such evidence, under Ohio law.
Petitioner has referred to, and this Court is aware of, no cases holding to the contrary. Similarly,
Petitioner’s argument that police had a duty to advise him of the consequence of his actions is
5
Petitioner refused to submit to DNA testing after being advised that police had a search
warrant authorizing them to use force, if necessary, to obtain a sample of his DNA. Trial
Transcript, at 603. Police restrained Petitioner on the floor and obtained the DNA sample by
holding his nose and taking a swab from his mouth. Id. at 603-604.
32
without support. The prosecution properly admitted evidence regarding the events leading to
Petitioner’s arrest. None of the evidence violated Petitioner’s attorney-client privilege, which
protects only private communications between a client and his attorney.6 Moreover, Petitioner
testified at trial and thereby was able to explain his reason for refusing to submit to DNA testing.
Id. at 702-703. Petitioner has referred to, and this Court is aware of, no law requiring police to
advise Petitioner of the consequences of his actions. In short, and for the reasons detailed by the
state appellate court, this Court likewise concludes that the statements complained of did not
constitute prosecutorial misconduct. Petitioner, therefore, has failed to establish the ineffective
assistance of counsel under the two-prong test set forth in Strickland.
He likewise has failed to establish cause for his procedural default of that portion of claim
three, in which he asserts that he was denied a fair trial due to the prosecutor’s improper statements
in closing argument.
Petitioner has failed to establish cause for his procedural defaults of claims one, two, nine,
and the portion of claim three, in which he contends he was denied a fair trial due to prosecutorial
misconduct in closing argument.
6
“In the Sixth Circuit, the essential elements of the attorney-client privilege are:
(1) Where legal advice of any kind is sought (2) from a professional
legal adviser in his capacity as such, (3) the communications relating
to that purpose, (4) made in confidence (5) by the client (6) are at his
instance permanently protected (7) from disclosure by himself or by
the legal adviser (8) except the protection be waived.
See E.E.O.C. v. Texas Hydraulics, Inc., 246 F.R.D. 548, 554 (E.D. Tenn. 2007)(citing Humphreys,
Hutcheson and Moseley v. Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985)
33
Beyond the four-part Maupin analysis, this Court is required to consider whether this is “an
extraordinary case, where a constitutional violation has probably resulted in the conviction of one
who is actually innocent.” Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley, 505 U.S.
333 (1992). After review of the record, the Court does not deem this to be such a case.
Claims one, two, a portion of claim three, and claim nine are procedurally defaulted.
CLAIM THREE
Closely related to Petitioner’s claim that the prosecutor made improper arguments in closing,
Petitioner also asserts in claim three that he was denied a fair trial because the prosecutor elicited
improper comments regarding his refusal to provide DNA evidence to police. The state appellate
court rejected the claim, as previously discussed. See State v. Wade, 2008 WL 1723671, at *3-4.
The scope of federal habeas corpus review of a claim of prosecutorial misconduct is narrow.
A federal court does not sit as an appellate court employing supervisory powers to rectify ordinary
trial error in cases before it for habeas review. Donnelly v. DeChristoforo, 416 U.S. 637 (1974).
Rather, the Court must consider only whether the prosecutor’s conduct was so egregious as to deny
the petitioner fundamental fairness. Id. at 642-43; Martin v. Foltz, 773 F.2d 711, 716-17 (6th Cir.
1985); Angel v. Overberg, 682 F.2d 605, 607 (6th Cir. 1982)(en banc). This determination is made
by evaluating the totality of the circumstances surrounding the case. Angel v. Overberg, 682 F.2d
at 607.
Factors relevant in making this inquiry are: the degree to which the
remarks may tend to mislead the jury and to prejudice the accused;
whether the remarks were isolated or extensive; whether they were
deliberately placed before the jury; and the strength of the case
34
against the accused. Finally, this Court notes the “extreme nature of
the prosecutorial misconduct required for a federal court to issue the
writ.”
Martin v. Foltz, 773 F.2d at 716 (citations omitted)(quoting Cook v. Bordenkircher, 602 F.2d 117,
120 (6th Cir. 1979)). For the reasons addressed by the state appellate court, this Court is not
persuaded that Petitioner has met this standard here. In South Dakota v. Neville, 459 U.S. 553, 565
(1983), the Supreme Court held that evidence of a defendant’s refusal to take a blood alcohol test
could be used as evidence of guilt regardless of whether the defendant had been advised that his
refusal could be used against him at trial. Further, Petitioner has referred to, and this Court is not
aware of any decision of the United States Supreme Court indicating that it is improper for a
prosecutor to argue that refusal to submit to DNA testing may be considered as evidence of
consciousness of guilt, as is required under the 28 U.S.C. § 2254(d).
The remaining aspects of claim three are without merit.
CLAIMS FOUR and FIVE
In claim five, Petitioner asserts that the trial court unconstitutionally imposed non-minimum
consecutive terms of incarceration and that application of State v. Foster, 109 Ohio St.3d at 1,
violated the Ex Post Facto Clause and due process. In claim four, Petitioner asserts, inter alia, that
he was denied effective assistance of counsel because his attorney failed to object to his sentence
on this basis. The state appellate court rejected these claims in relevant part as follows:
Appellant's sixth, seventh, and eighth assignments of error each
contend that the Supreme Court of Ohio's decision in State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, is incompatible with the United
States Supreme Court precedent in this area and that he is entitled to
minimum, concurrent sentences on remand. This court has previously
considered and rejected this very argument. State v. Hudson, Franklin
35
App. No. 06AP-335, 2007-Ohio-3227, at ¶ 23. Appellant also claims
that the Foster court's severance remedy, as applied to his case,
violates due process and ex post facto principles against retroactivity.
This court has also consistently rejected this argument. Id. at ¶ 25.
Appellant's sixth, seventh, and eighth assignments of error are
overruled.
***
[A]ppellant contends that his trial counsel was ineffective for failing
to make objections based on assignments of error six and seven. We
disagree. We have already rejected the arguments he presents in these
assignments of error. The failure to raise nonmeritorius objections is
not deficient performance, and additionally, appellant cannot show
that he was prejudiced by counsel's failure to raise these issues.
State v. Wade, 2008 WL 1723671, at *5-6. Petitioner has failed to establish that the state appellate
court’s decision is unreasonable so as to warrant federal habeas corpus relief. 28 U.S.C. § 2254(d),
(e).
In Hooks v. Sheets, 603 F.3d 316, 320-21 (6th Cir. 2010), the United States Court of Appeals
for the Sixth Circuit rejected the arguments now presented by Petitioner, at least as it applies to
imposition of consecutive terms of incarceration:
The Ex Post Facto Clause prohibits a state from passing a law that (1)
criminalizes an action done before the law was passed, which was
innocent when done, (2) “ ‘aggravates a crime, or makes it greater
than it was, when committed,’ “ (3) “ ‘changes the punishment’ “ to
inflict greater punishment than the law provided when the crime was
committed, or (4) “ ‘alters the legal rules of evidence’ “ so that less
or different testimony is required than at the time the offense was
committed. Rogers v. Tennessee, 532 U.S. 451, 456, 121 S.Ct. 1693,
149 L.Ed.2d 697 (2001) (quoting Calder v. Bull, 3 U.S. 386, 390, 3
Dall. 386, 1 L.Ed. 648 (1798)). The Ex Post Facto Clause, however,
provides by its terms that it is applicable only to acts of the
Legislature, and “ ‘does not of its own force apply to the Judicial
Branch of government.’ “ Id. (quoting Marks v. United States, 430
36
U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)). Nevertheless,
the “limitations on ex post facto judicial decisionmaking are inherent
in the notion of due process.” Id. Consequently, the principles of the
Ex Post Facto Clause apply to the courts through the Due Process
Clause. See id. at 457. Because these principles are viewed through
the lens of due process in the judicial context, the constitutionality of
judicial action turns on the traditional due process principles of
“notice, foreseeability, and, in particular, the right to fair warning,”
rather than the specific prescriptions of the Ex Post Facto Clause. Id.
at 458-59.
A state's statutory scheme does not violate the Sixth Amendment
simply because it constrains the ability of courts to impose
consecutive sentences to situations in which the court has found
specific facts. Oregon v. Ice, ---U.S. ----, ---------, 129 S.Ct. 711, 71415, 172 L.Ed.2d 517 (2009). Instead, a state may allow courts
unfettered discretion to impose consecutive sentences or it may limit
that authority without violating the Sixth Amendment. Id. At the time
Hooks committed his crimes, Ohio permitted the court to impose
consecutive rather than concurrent sentences if it found particular
facts, see ORC § 2929.14(E)(4), and explained its “reasons for
imposing the consecutive sentences,” ORC § 2929.19(B)(2)(c). The
Ohio Supreme Court nevertheless determined that these statutory
provisions violated Blakely because they allowed the imposition of
longer sentences – consecutive sentences – based upon judicial
factfinding. Foster, 845 N.E.2d at 491.
Regardless of the court's determination in Foster, the maximum
sentence to which Hooks was constitutionally subject contemplated
consecutive sentences. Hooks would have the court calculate his
maximum sentence as being imposed concurrently based solely on
the facts found by a jury at the time of sentencing, because he argues
that this calculation is mandated by Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, Apprendi
does not limit the calculation of Hooks's potential sentence to
concurrent sentences when the judicial fact-finding here is allowed
under Ice. Thus, Hooks was initially and constitutionally subject to
consecutive sentences according to the “guided discretion” of the
court. See Foster, 845 N.E.2d at 495. Moreover, Hooks was always
aware of the potential for consecutive sentences. On re-sentencing
post- Foster he remained subject to consecutive sentences within the
discretion of the court. Since Hooks was always subject to
37
consecutive rather than concurrent sentences in the discretion of the
trial court, his re-sentencing under Foster did not raise ex post facto
or due process concerns. We need not reach the broader question of
whether re-sentencing under Foster ever violates the Due Process or
Ex Post Facto Clauses because Foster's application in Hooks's case
does not do so.
Id., at 320-21. Further, Petitioner's argument has been repeatedly rejected by state and federal
courts, including this Court. See, e.g., Smith v. Brunsman, 626 F.Supp.2d 786, 793-95 (S.D. Ohio
2009)(application of Foster violates neither the due process nor the ex post facto clauses).
Petitioner faced the same sentencing ranges prior to and after Foster. The trial court's
imposition of non-minimum consecutive terms of incarceration after Foster did not violate the Due
Process or Ex Post Facto Clause. Petitioner therefore has failed to establish the ineffective
assistance of counsel based on his attorney’s failure to object at sentencing on this basis under the
test set forth in Strickland.
Claims four and five are without merit.
CLAIM SIX
In claim six, Petitioner asserts that his convictions for rape and kidnapping violate the
Double Jeopardy Clause because these crimes were committed with the same animus and the result
of one act. As this claim now applies to Petitioner’s rape conviction pursuant to the terms of his
negotiated guilty plea, the state appellate court rejected the claim in relevant part as follows:
On remand, a third trial was scheduled to retry the aggravated
burglary and rape charges. While awaiting a third trial, appellant’s
counsel, appellant, and the State reached a plea agreement with
respect to the two remaining counts, pursuant to which appellant
38
agreed to plead guilty to the rape charge and in exchange, the
prosecution would request a nolle prosequi as to the aggravated
burglary charge. (Tr. 15; R. 675-76.) The following exchange took
place during the plea hearing:
[MS. CANEPA:] Your Honor, upon acceptance of the Defendant’s
plea to the rape conviction – or to the rape charge, the State would
request a nolle prosequi as to Count One of the indictment.
Your Honor, I do have a two-page plea form signed by myself, Mr.
Weisman and the Defendant setting forth that a plea in this case is
punishable by a prison term of up to ten years.
***
Additionally, Your Honor, it’s my understanding that he is aware that
he is subject to tier registration under 2950.01, and there is a
registration form filled out to that end.
And, Your Honor, I would also note for the record that there’s a joint
recommendation being made between the State and defense, and I
would note for the record that I did speak with [the victim] just
moments ago, and she is in agreement with this plea, that there be
three years to be served concurrently with the Defendant’s current
15-year conviction sentence in the same case number, that being
02CR-5493.
***
Additionally, Your Honor, I believe there’s an agreement that for
purposes of this plea that the rape and the kidnapping are not merging
but rather be served concurrently.
MR. WEISMAN: That is the spirit of the plea, Your Honor.
(Tr. 14-16.)
39
Following the prosecution’s recitation of the agreement on the record,
the court addressed appellant to confirm that he understood the plea
agreement. The following exchange occurred:
***
THE COURT: . . . I understand your attorney and the prosecutor are
recommending the three years concurrent, and I have told Mr.
Weisman that I will accept this recommendation, but I just have to –
I have to go over what the possible consequences are.
***
Prior to sentencing, the court asked appellant’s counsel if he had any
statement he would like to make. Counsel then requested appellant
be awarded three years of jail-time credit and further stated, “[w]e
would ask the Court to follow the joint recommendation.” (Tr. 23.)
The trial court then imposed a sentence of three years and ordered it
to be served concurrently to the other counts for which appellant was
currently serving time. (Tr. 23.) The trial court also awarded three
years of jail-time credit as to the rape count. (Tr. 23.) Upon a
request from appellant for clarification, the trial court confirmed that
the plea and sentence on the rape count would not affect appellant’s
“outdate.” (Tr. 24.)
***
[A]ppellant argues the trial court erred in imposing a separate
sentence for the allied offenses of rape and kidnapping. . .
Appellant argues that the rape and kidnapping counts were previously
determined to be allied offenses of similar import which were not
committed with a separate animus following sentencing after the first
and second trials. As a result, the two offenses were found to have
merged for sentencing purposes. Appellant argues the trial court’s
acceptance of the plea agreement and its subsequent imposition of
separate sentences for the rape and kidnapping counts violates his
40
right to be free from double jeopardy because he should have been
convicted of only one count, pursuant to R.C. 2941.25.
Appellant further argues the record fails to demonstrate that he
waived his rights or stipulated that the offenses were committed with
a separate animus. In addition, appellant submits the trial court did
not make a finding that the offenses were committed with a separate
animus. Appellant also argues that imposition of multiple sentences
for allied offenses of similar import constitutes plain error and
requires remand. Furthermore, appellant contends his counsel was
ineffective in failing to object to the trial court’s imposition of
multiple sentences for allied offenses of similar import, and in
allowing the State to add additional terms to the plea agreement.
Appellant asserts he was prejudiced as a result of this, as his counsel
cannot waive his right to be free from double jeopardy.
The State, on the other hand, argues the invited error and plain error
doctrines bar review of appellant’s merger claim. The State asserts
that pursuant to the oral recitation of the plea agreement placed on the
record, appellant agreed to forego raising the argument that merger
applied. The State also points to the joint recommendation recited in
the written plea entry, which clearly abandoned any merger
argument. Together, the State contends these actions demonstrate the
parties agreed there would be no merger and the invited error
doctrine bars appellant from obtaining relief.
Even if the invited error doctrine is not applicable, the State argues
the concept of waiver and/or forfeiture should apply, and further
submits no plain error occurred here. Furthermore, the State
contends that the merger claim fails on its merits because a separate
animus exists for the kidnapping under the facts of this case, due to
the prolonged restraint of the victim’s freedom. The State asserts any
previous decision by the trial court to merge the rape and kidnapping
counts was not binding upon the court at the time the plea was
entered.
***
We disagree with appellant’s contention that he did not waive his
rights with respect to any merger argument and/or that he did not
41
stipulate that the offenses were committed with a separate animus.
The record reflects otherwise.
The prosecutor specifically advised the trial court there was an
agreement or understanding that the rape and kidnapping would not
be merged, but instead would be run concurrently. Appellant’s
counsel then confirmed that agreement by stating, “[t]hat is the spirit
of the plea, Your Honor.” (Tr. 16.). Because the State and a
defendant can stipulate in a plea agreement that offenses were
committed with a separate animus, a defendant can be subjected to
more than one conviction and sentence. . . . Therefore, we find that,
pursuant to the terms of the plea agreement, which also included a
joint recommendation for a concurrent sentence, the parties agreed
that appellant’s sentence on the rape charge would not merge with his
prior sentence on the kidnapping offense. Under the invited error
doctrine, reversal is not warranted here. . . .
Even if the invited error doctrine does not apply and the joint
recommendation and plea agreement are not dispositive of the issue,
we further note there is evidence, including testimony presented at
trial, which demonstrates the existence of a separate animus for the
two offenses. Here, the kidnapping was not merely incidental to the
rape, which lasted five or ten minutes, but also involved prolonged
restraint of 20 to 30 minutes, thus supporting a reasonable finding
that the two crimes were committed with a separate animus. . . .
Furthermore, we rejected appellant’s assertion that the trial court’s
earlier decisions to merge the rape and kidnapping counts were
binding at the time the sentence took place following the plea to the
rape charge. Our June 12, 2008 memorandum decision on
appellant’s application for reconsideration, makes it clear that the
merger issue would need to be decided by the trial court if appellant
was convicted of the rape upon retrial. (R. 517, at ¶7.)
Finally, because appellant did not object to the lack of merger at the
time of the sentencing hearing, our review of this matter would be
subject to a plain error standard. Based upon the circumstances here,
we find no plain error.
See Exhibits to Notice of Status of Petitioner’s State Appeal, Doc. 39.
42
Here, Petitioner does not dispute the factual findings of the state appellate court. For the
reasons set forth by the state appellate court, Petitioner has failed to establish he is entitled to habeas
corpus relief. He has failed to rebut the state court’s factual finding that the kidnapping and rape
counts were committed with separate animus and involved two separate offenses. Moreover,
Petitioner agreed to be sentenced on both the rape and kidnapping charge, in exchange for a jointly
recommended concurrent sentence, and the State’s agreement to dismiss the aggravated burglary
charge, thereby reducing his exposure to a lengthier sentence.
Claim six is without merit.
CLAIM SEVEN
In claim seven, Petitioner asserts that he was denied effective assistance of appellate counsel
because his attorney failed to raise on appeal a claim that the trial court violated the Double
Jeopardy Clause and Ohio’s statute on allied offenses of similar import by imposing separate
sentences on both rape and kidnapping. This claim is moot, because the state appellate court
reversed Petitioner’s rape conviction on direct appeal, and because the state appellate court
ultimately rejected this argument after Petitioner’s guilty plea, as discussed, supra.
CLAIM EIGHT
In claim eight, Petitioner asserts he was denied effective assistance of appellate counsel
because his attorney failed to raise on appeal a claim of ineffective assistance of trial counsel based
on his attorney’s failure to request a limiting instruction on evidence regarding his use of a firearm
as it applied to the kidnapping charge against him. The state appellate court rejected this claim,
reasoning as follows:
43
[A]ppellant claims his appellate counsel was ineffective for failing to
argue that trial counsel was ineffective for failing to request the
limiting instruction regarding the gun testimony for the counts other
than the rape count. We disagree.
As we have previously noted appellant’s convictions for theft,
receiving stolen property, failure to comply with an order of a police
officer, and possession of cocaine were either admitted by him or
occurred days after the rape and kidnapping. . . . The gun testimony
had no impact on these convictions. . . . Additionally, we have
already reversed appellant’s conviction for aggravated burglary. . . .
Thus appellant cannot demonstrate prejudice from trial counsel’s
failure to request the instruction, or from appellate counsel’s failure
to argue this point, for these convictions.
Appellant’s kidnapping conviction is the only remaining conviction
we need to consider in this context. In Wade II, we determined that
the trial court did not commit lain error by failing to give a limiting
instruction regarding the gun testimony for the kidnapping count
because we could not say that the outcome of that count clearly
would have been different but for that failure. . . . We reached that
conclusion based on evidence that appellant forcibly pushed his way
through the door and blocked the victim’s exit from the apartment.
Appellant was also much taller and heavier than his victim. We
determined that this evidence was sufficient for a reasonable juror to
have concluded that appellant committed kidnapping even without
the gun testimony. This same evidence leads us to conclude that
there is not a reasonable probability that appellant’s kidnapping
conviction would have been reversed had appellate counsel raised
trial counsel’s failure to request a limiting instruction regarding gun
testimony. Thus, appellant cannot demonstrate prejudice from
appellate counsel’s failure to argue this point in connection with the
kidnapping conviction.
Appellant has not established a colorable claim of ineffective
assistance of appellate counsel.
Exhibit 15 to Return of Writ.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
44
–, –, 130 S.Ct. 1473, 1485 (2010).
Even under de novo review, the standard for judging counsel's
representation is a most deferential one. Unlike a later reviewing
court, the attorney observed the relevant proceedings, knew of
material outside the record, and interacted with the client, with
opposing counsel, and with the judge. It is “all too tempting” to
“second-guess counsel's assistance after conviction or adverse
sentence.” . . . The question is whether an attorney's representation
amounted to incompetence under “prevailing professional norms,”
not whether it deviated from best practices or most common custom.
Harrington v. Richter, ––– U.S. ––––, ––––, 131 S.Ct. 770, 788 (2011) (citations omitted).
“[E]stablishing entitlement to relief based on ineffective assistance of counsel under AEDPA is even
more difficult than doing so on de novo review.” Milstead v. Sherry, No. 07-15332, 2011 WL
883187, at *3-4 (E.D. Mich. May 17, 2011)(citing Harrington v. Richter 131 S.Ct. at 770).
The standards created by Strickland and § 2254(d) are both “highly
deferential,”. . . and when the two apply in tandem, review is
“doubly” so. . . . The Strickland standard is a general one, so the
range of reasonable applications is substantial....Federal habeas
courts must guard against the danger of equating unreasonableness
under Strickland with unreasonableness under § 2254(d). When §
2254(d) applies, the question is not whether counsel's actions were
unreasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland 's deferential standard.
Harrington v. Richter,131 S.Ct. at 788. Petitioner has failed to meet this standard here.
As discussed by the state appellate court, Petitioner cannot establish prejudice, as that term
is defined under Strickland, based on his attorney’s failure to request a limiting instruction for the
firearm evidence as it related to his convictions for robbery, receiving stolen property, failure to
comply with an order of a police officer, and possession of cocaine, as these crimes were committed
days after the rape and kidnapping charges. As to Petitioner’s conviction on kidnapping, the
45
appellate court concluded Petitioner failed to establish prejudice from his attorney’s failure to
request a limiting instruction, since ample evidence aside from his alleged use of a firearm
established the use of force. Petitioner had forcibly pushed his way into the house, prevented the
victim from leaving the house, and was physically much taller and heavier than the alleged victim.
See State v. Wade, 2008 WL 1723671, at *1-3. These factual findings are presumed to be correct,
and the record reflects no reason to disturb these findings here.
Petitioner complains that the prosecutor repeatedly referred to his use of a gun during trial.
He refers to a footnote in the state appellate court’s decision indicating evidence of force, aside from
his use of a gun, was “minimal,” and there existed “a substantial likelihood that the jury considered
appellant's alleged use of a gun in finding the element of force.” See Traverse; State v. Wade, 2008
WL 366143, at *7, n.7. This statement to which the Petitioner refers, however, relates to his rape
conviction, not to evidence of force involved in the kidnapping charge. See id. Petitioner
additionally argues, as he did in the state appellate court, that introduction of evidence regarding his
use of a gun violated Ashe v. Swenson, 397 U.S. at 436. He contends that the state appellate court’s
decision rejecting his claim is contrary to, or an unreasonable application of Ashe and Dowling, 493
U.S. at 347. For the reasons detailed by the state appellate court, see State v. Wade, 2008 WL
366143, at *3-7, this Court does not agree. Although a jury previously acquitted Petitioner of the
use of a firearm, that issue was not an ultimate fact in establishing his convictions in his subsequent
trial. Thus, this Court is not persuaded that Petitioner has met his burden of establishing that the
state court’s application of Strickland warrants federal habeas corpus relief.
WHEREUPON the Magistrate Judge RECOMMENDS that this action be DISMISSED.
PROCEDURE ON OBJECTIONS
46
If any party objects to this Report and Recommendation, that party may, within fourteen (14)
days of the date of this report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may recommit
this matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation
will result in a waiver of the right to have the district judge review the Report and Recommendation
de novo, and also operates as a waiver of the right to appeal the decision of the District Court
adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States
v. Walters, 638 F.2d 947 (6th Cir.1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision,
they may submit arguments in any objections filed, regarding whether a certificate of appealability
should issue.
Date: March 14, 2012
s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
47
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