Acord v. Warden, Lebanon Correctional Institution

Filing 13

REPORT AND RECOMMENDATION re 3 Petition for Writ of Habeas Corpus filed by Robert Acord. Objections to R&R due by 2/8/2013. Signed by Magistrate Judge Elizabeth Preston Deavers on 1/22/2013. (Copy mailed to Petitioner via certified mail, receipt #7009 2820 0003 5794 9496.) (sln1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROBERT ACORD,

CASE NO. 2:12-CV-355

Petitioner,

JUDGE JAMES L. GRAHAM

v.

MAGISTRATE JUDGE ELIZABETH P. DEAVERS

WARDEN, LEBANON
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, Petitioner’s Reply, 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 Twelfth District Court of Appeals summarized the facts and procedural history
of this case as follows:
In August 2008, Fayette County social services agencies were
advised that Acord was sexually abusing his two nieces, ages eight
and 11. The children described a history of extensive sexual abuse
by Acord, including digital penetration, vaginal and anal
intercourse, forced fellatio, and exposure to child pornography.
Acord often forced the older sister to videotape and take pictures
of his sexual acts with the eight-year-old, and would then
download the media onto his personal computer.
Soon after the sisters reported the abuse, police officers from
Washington Court House, Ohio sought and obtained a warrant to
search Acord's home. Officers arrived at approximately 12:40 in
the afternoon of August 20th to execute the warrant, and
approached the west side and front of Acord's home. Sergeant
Russell Lowe positioned himself at the front door, knocked loudly,
and announced his presence to execute the warrant. Detective
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Chancey Scott took position at a window on the other side of the
house. Although it had an intact screen, the window was open so
that through it, Scott could see a bed, television set, and a desk
with a computer on it.
Though Lowe continued to announce their presence as law
enforcement officers, Acord did not open the door. Scott went
around the side of the house and informed Lowe that they could
gain entrance through the window, and he and Officer M.J. Boone
went back around the house to do so. After Scott and Boone went
back to the window and repeatedly announced their presence, Scott
began to remove the screen from the window. Before Scott could
remove the entire screen, a male voice from inside the bedroom,
later identified as Acord, asked, “what [was] going on.” Officers
told Acord to show his hands and get on the ground. Acord
refused, and instead, began to exit the room, at which time Scott
entered through the window and restrained Acord on the bed.
When Lowe heard the scuffle, he kicked down the front door,
joined the officers in the bedroom, and helped detain Acord.
Once Acord was subdued, officers gave him a copy of the warrant
and then executed it. During the search, the police seized multiple
items, including computers, digital cameras, Polaroid cameras, and
various CDs, videos, and DVDs. These items contained hundreds
of pornographic images and evidence that corroborated the sisters'
story. Based on the evidence seized from the first search, police
sought and obtained a second warrant to search for other evidence
specific to the rape allegations, including the bedding from Acord's
bed, sexual toys, and clothing the sisters were seen wearing in the
seized photographs and videos. The judge also approved a
subsequent warrant, thereby permitting officers to take DNA
samples from Acord to compare to the evidence seized during the
second search.
Acord was indicted on 72 counts of illegal use of a minor in
sexually-oriented material or performance, 98 counts of pandering
sexually-oriented matter involving a minor, and eight counts of
rape. Acord then filed two motions to suppress the evidence seized
during the searches, claiming that the supporting affidavits were
defective, so that the warrants lacked probable cause, and also that
the officers failed to execute the proper knock and announce
protocol. The trial court overruled Acord's motions. Soon
thereafter, Acord pled no contest to 51 counts of illegal use of a
minor in nudity-oriented material or performance, 78 counts of
pandering sexually-oriented matter involving a minor, and eight
counts of rape.

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The trial court sentenced Acord to five consecutive life sentences
for five counts of rape, and three concurrent life sentences on the
other three rape counts. For each of the 115 second-degree felony
counts, the trial court sentenced Acord to eight years on each count
and added an additional 14 years for the fifth-degree felonies
committed. Acord now appeals his convictions, raising two
assignments of error.
Assignment of Error No. 1:
“THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT IN REFUSING TO SUPPRESS EVIDENCE
WHEREIN THE WARRANT TO SEARCH WAS ISSUED
WITHOUT PROBABLE CAUSE TO BELIEVE THAT THE
EVIDENCE SOUGHT WAS IN APPELLANT'S RESIDENCE
AND WHERE PROPERTY SEIZED WAS NOT THAT
DESCRIBED IN THE AFFIDAVIT FOR THE SEARCH
WARRANT.”
State v. Accord, No. CA2009-01-001, 2009 WL 2581415, at *1-2 (Ct. App. 12 Dist. Aug. 24,
2009). On August 24, 2009, the appellate court affirmed the judgment of the trial court. Id. On
December 30, 2009, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v.
Accord, 124 Ohio St.3d 1417 (2009).
On January 21, 2009, Petitioner filed an application to reopen the appeal pursuant to
Ohio Appellate Rule 26(B). Exhibit 14 to Return of Writ. On August 18, 2010, the appellate
court denied Petitioner’s Rule 26(B) application. Exhibit 15 to Return of Writ. Petitioner did not
file an appeal to the Ohio Supreme Court.
Petitioner also pursued post conviction relief. On July 2010, he filed a motion to dismiss
on speedy trial grounds and a motion to withdraw his plea as coerced. Exhibits 17, 20 to Return
of Writ. On June 10, 2011, the trial court denied Petitioner’s motions. Exhibit 22 to Return of
Writ. Petitioner did not file an appeal.
Petitioner additionally filed a petition for habeas corpus in the Ohio Supreme Court,
asserting he was denied a fair trial due to prosecutorial and judicial misconduct, ineffective
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assistance of counsel, because the trial court failed to advise him of his rights at his initial
appearance, his sentence was void, he was denied his right to a speedy trial, and denied due
process.

Exhibit 23 to Return of Writ.

On February 22, 2012, the Ohio Supreme Court

dismissed Petitioner’s habeas corpus petition. Exhibit 24 to Return of Writ.
On May 8, 2012, Petitioner filed the instant pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. As his sole claim for federal habeas corpus relief, Petitioner
asserts as follows:
The State’s failure to support the United States Constitution, which
they are bound to do so by Oath or Affirmation, violated
Petitioner’s most basic & fundamental rights under Due Process
guaranteed by the United States Constitution, Supreme Court
precedence, & Rules of Procedure.
It is the position of the Respondent that this claim fails to provide a basis for relief and that the
sole claim Petitioner has preserved for review, in any event, is not cognizable in these
proceedings.
MERITS
As his sole claim for federal habeas corpus relief, Petitioner generally asserts that he was
deprived of a constitutionally fair trial. In support of this claim, Petitioner has provided nine
pages of a hand-written memorandum in which he complains about every aspect of the charges
against him, including his arrest, and from the time of his initial arrest and treatment in jail, to
his sentence. This Court, however, cannot determine from the face of the petition the precise
grounds on which Petitioner now seeks relief.

In other words, Petitioner’s habeas corpus

petition fails to include specific grounds for relief with facts in support of each of these specific
claims in an understandable manner as is required under Rule 2(c) of the Rules Governing

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Section 2254 Cases in the United States District Courts.1 As a result, this Court is unable to
ascertain the exact nature of Petitioner’s claim(s). Petitioner’s Reply to the Return of Writ does
not assist the Court, as Petitioner argues therein that his sentence is void and that he properly has
exhausted his claim(s) due to an inadequate or lack of available remedy in the state courts. See
Reply, Doc. No. 11. While this Court liberally construes the pleadings of pro se prisoners,
Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985), the Court is not required to conjure allegations
on Petitioner’s behalf. Erwin v. Edwards, 22 Fed. Appx. 579, 580, unpublished, 2001 WL
1556573 (6th Cir. 2001).
Further, as noted by Respondent, the sole claim Petitioner appears to have preserved for
review is a claim that he was denied a fair trial because the trial court improperly denied his
motion to suppress evidence obtained in violation of the Fourth Amendment. This claim,
however, does not provide Petitioner relief.

Where the State has provided an opportunity for

full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas
corpus relief on the ground that evidence obtained through an unconstitutional search and seizure
was introduced into evidence at his trial. Stone v. Powell, 428 U.S. 465, 474–95 (1976). Such
were the circumstances here.
Any other claims Petitioner intends to raise, appear to be procedurally defaulted. See
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir 1986).
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   Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts
provides:
Form. The petition must:
(1) specify all the grounds for relief available to the petitioner;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten; and
(5) be signed under penalty of perjury by the petitioner or by a person authorized
to sign it for the petitioner under 28 U.S.C. § 2242.

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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 specifically are 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).
__/s Elizabeth A. Preston Deavers      
Elizabeth A. Preston Deavers
United States Magistrate Judge
Date: January 22, 2013

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