Barkley v. Warden Chillicothe Correctional Institution

Filing 10

REPORT AND RECOMMENDATION that the 2 Petition for Writ of Habeas Corpus filed by Dominic Barkley be Dismissed. Objections to R&R due by 7/6/2012. Signed by Magistrate Judge Elizabeth Preston Deavers on 6/19/2012. (Copy mailed to Petitioner via regular U.S. mail and certified mail, receipt # 7009 2820 0003 5794 7515.) (sln1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DOMINIC BARKLEY,
Petitioner,

CASE NO. 2:10-CV-1182
JUDGE ALGENON L. MARBLEY
Magistrate Judge E.A. Preston Deavers

v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
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, 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 of this case as follows:
Barkley broke into a motel room occupied by Kevin Clark and Eve
Lauber. Barkley was armed with a firearm. He fought with Clark,
who attempted to take the gun away. Barkley ordered the two victims
to sit down, and then he used duct tape to restrain them. Barkley stole
their credit cards and cash. He also eventually stole their car.
The two victims were restrained only briefly. They were held
duct-taped to chairs for approximately 45 minutes while Barkley
apparently waited for a ride from another person. When no one else
showed up, Barkley used their car to flee. He left them still
duct-taped to their chairs.
State v. Barkley, 185 Ohio App.3d 686, 688 (Ohio App. 10th Dist. 2009). On May 14, 2008, after
a trial to the court, Petitioner was found guilty of two counts of aggravated robbery, two counts of
kidnapping, two counts of failure to comply with an order or signal of a police officer, one count of

carrying a concealed weapon, and one count of improperly handling firearms in a motor vehicle,
with firearm specifications. The trial court imposed an aggregate term of fifteen and ½ years
incarceration. See Exhibits 2, 3 to Return of Writ. Petitioner filed a timely appeal, in which he
raised the following assignments of error:
ASSIGNMENT OF ERROR I:
The trial court committed plain error by convicting and sentencing
Mr. Kimbrough [sic] to separate, concurrent sentences on his two
offenses, after it had already determined that they were allied
offenses. That error contravened clearly established law under R.C.
2941.25(A), longstanding precedent, and Mr. Kimbrough’s [sic] state
and federal constitutional rights regarding due process and double
jeopardy.
ASSIGNMENT OF ERROR II:
The trial court erred by imposing court costs without notifying Mr.
Barkley that failure to pay court costs may result in the court’s
ordering him to perform community service.
ASSIGNMENT OF ERROR III:
An indictment for a count of aggravated robbery under R.C.
2911.01(A)(1) must contain the mens rea of recklessness with regard
to the element of either displaying, brandishing, indicating the
possession of, or using a deadly weapon.
See id. On October 20, 2009, the appellate court affirmed the judgment of the trial court. Id. On
February 10, 2010, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v.
Barkley, 124 Ohio St.3d 1477 (2010).
On December 30, 2010, Petitioner filed the instant pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner asserts that his convictions violate the Double Jeopardy
Clause, as they constitute allied offenses based on one act, and that the indictment was structurally
defective, depriving him of the right to notice of the charges against him, by failing to include the
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required mens rea of “recklessness” on the charges of aggravated robbery. See Petition. It is the
position of the Respondent that these claims are waived or without merit.
CLAIM ONE
In claim one, Petitioner asserts that his convictions violate the Double Jeopardy Clause.
Respondent preliminarily contends that Petitioner failed to fairly present this same federal issue to
the state courts because he argued his claim under Ohio’s statutes on allied offenses of similar
import. This Court, however, has previously rejected this same argument, noting that Ohio’s statute
on allied offenses, O.R.C. 2941.25, as defined by the Ohio Supreme Court in State v. Rance, 85 Ohio
St.3d 632 (1999), is derived from concerns of the Double Jeopardy Clause. See, e.g. Spence v.
Sheets, 675 F.Supp.2d 792 (S.D. Ohio 2009); Helton v. Jeffreys, No.2:06-cv-558, 2007 WL
1100428, at *4-5 (S.D. Ohio April 10, 2007)(citing Palmer v. Haviland, No.C-1-04-28, 2006 WL
1308219 (S.D. Ohio May 11, 2006). This Court therefore likewise concludes that Petitioner has
fairly presented his federal double jeopardy claim to the Ohio courts.
The state appellate court rejected Petitioner’s claim, reasoning as follows:
Barkley argues that Barkley was convicted of allied offenses of
similar import in violation of R.C. 2941.25(A), which reads:
Where the same conduct by defendant can be
construed to constitute two or more allied offenses of
similar import, the indictment or information may
contain counts for all such offenses, but the defendant
may be convicted of only one.
Specifically, counsel asserts that Barkley should not have been
convicted of both aggravated robbery and kidnapping with respect to
each of the two victims. . . .
***
Barkley broke into a motel room occupied by Kevin Clark and Eve
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Lauber. Barkley was armed with a firearm. He fought with Clark,
who attempted to take the gun away. Barkley ordered the two victims
to sit down, and then he used duct tape to restrain them. Barkley stole
their credit cards and cash. He also eventually stole their car.
The two victims were restrained only briefly. They were held
duct-taped to chairs for approximately 45 minutes while Barkley
apparently waited for a ride from another person. When no one else
showed up, Barkley used their car to flee. He left them still
duct-taped to their chairs.
Kidnapping is defined by R.C. 2905.01(A)(2) and (3) as follows:
No person, by force, threat, or deception, or, in the
case of a victim under the age of thirteen or mentally
incompetent, by any means, shall remove another
from the place where the other person is found or
restrain the liberty of the other person, for any of the
following purposes:
***
(2) To facilitate the commission of any felony or
flight thereafter;
(3) To terrorize, or to inflict serious physical harm on
the victim or another.
Aggravated robbery is defined by R.C. 2911.01(A)(1) and (2):
No person, in attempting or committing a theft
offense, as defined in section 2913.01 of the Revised
Code, or in fleeing immediately after the attempt or
offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender’s
person or under the offender’s control and either
display the weapon, brandish it, indicate that the
offender possesses it, or use it;
(2) Have a dangerous ordnance on or about the
offender’s person or under the offender’s control.
(Emphasis added.)
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In many situations, the statutes overlap to a significant degree. It is
very difficult to rob someone without at least briefly restraining them
of their liberty. As a result, the Supreme Court of Ohio held in State
v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, that
the offenses can be allied offenses of similar import. However, Winn
does not stand for the principle that the two offenses are
automatically allied offenses of similar import, especially when, as
here, the restraint is lengthy and continues after the aggravated
robbery is completed. Thus, the Supreme Court directed the
following analysis:
“ ‘In the first step, the elements of the two crimes are
compared. If the elements of the offenses correspond
to such a degree that the commission of one crime
will result in the commission of the other, the crimes
are allied offenses of similar import and the court
must then proceed to the second step. In the second
step, the defendant’s conduct is reviewed to determine
whether the defendant can be convicted of both
offenses. If the court finds either that the crimes were
committed separately or that there was a separate
animus for each crime, the defendant may be
convicted of both offenses.’ ”
(Emphasis sic.) Id., quoting State v. Brown, 119 Ohio St.3d 447,
2008-Ohio-4569, 895 N.E.2d 149, ¶ 19, quoting State v. Blankenship
(1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816.
Technically, Barkley was guilty of several robberies, not just the two
for which he was convicted. The theft of the credit cards and cash had
occurred before Barkley stole the car. The restraint continued long
after the first theft. Barkley’s case simply does not present a situation
in which allied offenses of similar import have occurred. The trial
court was correct to convict Barkley of both kidnapping and
aggravated robbery as to each victim. R.C. 2941.25(A) did not
compel a different result.
State v. Barkley, 185 Ohio App. 3d at 687-89.
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
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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.
Further, 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 Supreme Court has explained:
"[A]n unreasonable application of federal law is different from an
incorrect application of federal law." Williams v. Taylor, 529 U.S.
362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, "a federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or
incorrectly." Id., at 411, 120 S.Ct. 1495. Rather, that application must
be "objectively unreasonable." Id., at 409, 120 S.Ct. 1495. This
distinction creates "a substantially higher threshold" for obtaining
relief than de novo review. Schriro v. Landrigan, 550 U.S. 465, 473,
127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). AEDPA thus imposes a
"highly deferential standard for evaluating state-court rulings," Lindh
v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481
(1997), and "demands that state-court decisions be given the benefit
of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357,
154 L.Ed.2d 279 (2002) ( per curiam ).
Renico v. Lett, – U.S. –, 130 S.Ct. 1855,1862 (2010)(footnote omitted.)
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"[C]learly established" law under § 2254(d)(1) consists of "the
holdings, as opposed to the dicta, of this Court’s" cases. Williams v.
Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
An "unreasonable application" of that law involves not just an
erroneous or incorrect decision, but an objectively unreasonable one.
Renico v. Lett, 559 U.S. ----, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010).
Wong v. Smith, 131 S.Ct.10 (Mem), 2010 WL 752363, at *2 (Nov. 1, 2010). “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, – U.S. –,
–, 131 S.Ct. 770, 786 (2011)(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Petitioner
has failed to meet this standard here.
The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through
the Fourteenth Amendment, provides that no person shall “be subject for the same offence to be
twice put in jeopardy of life or limb.” U.S. Const. amend. V. The clause has been interpreted as
protecting criminal defendants from successive prosecutions for the same offense after acquittal or
conviction, as well as from multiple punishments for the same offense. Brown v. Ohio, 432 U.S.
161, 165 (1977). The traditional test for double jeopardy claims is the “same elements” test set forth
in Blockburger v. United States, 284 U.S. 299, 304 (1932) (requiring the court to determine whether
each charged offense “requires proof of an additional fact which the other does not”). The
Blockburger test is designed to deal with the situation where closely connected conduct results in
multiple charges under separate statutes. Under Blockburger, the critical question is whether the
multiple charges in reality constitute the same offense. Thus, the Blockburger test focuses on
whether the statutory elements of the two crimes charged are duplicative. If the elements of the two
statutes are substantially the same, then double jeopardy is violated by charging the defendant under
both.
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In view of the facts of this case, and applying the test set forth in Blockburger, this Court is
not persuaded that the state appellate court’s conclusion that evidence reflected separate criminal
acts due to the prolonged restraint of the movement of the victims and that petitioner’s convictions
therefore did not violate the Double Jeopardy Clause was unreasonable so as to justify federal
habeas corpus relief. 28 U.S.C. § 2254(d), (e); see Jones v. Baker, 35 F.3d 566, unpublished, 1994
WL 464191 (6th Cir. August 26, 1994) (no double jeopardy violation where kidnapping not “merely
incidental” to aggravated robbery and involved substantial restraint of the victim); Watkins v.
Schotten, 103 F.3d 132, unpublished, 1996 WL 690159 (6th Cir. Nov. 27, 1996) (no double jeopardy
violation on aggravated robbery and kidnapping convictions where the offenses were committed
separately with separate animus and since the crimes have separate elements); McKitrick v. Smith,
2009 WL 1067321 (N.D. Ohio April 21, 2009) (trial court’s finding that petitioner had “separate
animi” for robbery and kidnapping is due deference in habeas proceedings and therefore petitioner’s
convictions did not violate Blockburger ).
Claim one is without merit.
CLAIM TWO
In claim two, Petitioner asserts that his indictment was structurally defective and deprived
him of the right to notice of the charges against him, in violation of due process, because the charges
on aggravated robbery failed to include the required mens rea of recklessness. Respondent correctly
notes that Petitioner failed to present this claim as a federal constitutional issue to the state appellate
court. See Exhibit 6 to Return of Writ. Petitioner argued solely that the indictment failed to comply
with Ohio law. He did not, however, contend that he was unconstitutionally denied fair notice of
the charges against him, or argue that the indictment was otherwise constitutionally defective. See

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id.
In order to exhaust available state remedies, a petitioner must first fairly present the
substance of his federal habeas corpus claims to the state courts. Picard v. Connor, 404 U.S. 270,
275 (1971); Anderson v.Harless, 459 U.S. 4, 6 (1982). “The state courts must be provided with a fair
opportunity to apply controlling legal principles to the facts bearing upon petitioner’s constitutional
claims.” Sampson v. Love, 782 F.2d 53, 55 (6th Cir. 1986). Petitioner does not fairly present his
claim simply because the necessary facts supporting a federal constitutional claim are present or
because the constitutional claim appears self evident. Haggins v. Warden, 715 F.2d 1050, 1054 (6th
Cir. 1983)(citing Harless, 459 U.S. at 6). Furthermore, “[a] petitioner ‘fairly presents’ his claim to
the state courts by citing a provision of the Constitution, federal decisions employing constitutional
analysis, or state decisions employing constitutional analysis in similar fact patterns.” Levine v.
Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993)(citing Franklin v. Rose, 811 F. 2s 322, 326 (6th Cir.
1987)). Courts normally require more than a single broad generalization that petitioner was denied
a “fair trial” or “due process of law.” Franklin, 811 F.2d at 326; Petrucelli v. Coombe, 735 F.2d 684,
688 (6th Cir. 1984). Petitioner, however, need not “cite book and verse on the federal constitution.”
Picard, 404 U.S. at 277 (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1960)). The
Sixth Circuit has strictly followed the requirement that petitioner fairly presented his federal
constitutional claims to the state courts as a precondition to federal habeas review. Weaver v. Foltz,
888 F.2d 1097, 1098 (6th Cir. 1989).
Moreover, Petitioner has failed to establish cause for his failure to present claim two to the
state courts. He thereby has waived this claim for federal habeas corpus review. To the extent that
Petitioner raises an issue regarding the alleged violation of state law, this claim fails to present an

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issue appropriate for federal habeas corpus relief. 28 U.S.C. § 2254(a).
WHEREUPON, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
PROCEDURE ON OBJECTIONS
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.

s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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Date: June 19, 2012

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