Harper v. Warden Belmont Correctional Institution

Filing 13

REPORT AND RECOMMENDATIONS re 8 MOTION Release of a Prisoner in a Habeas Corpus Proceeding filed by Henry N. Harper. The Magistrate Judge RECOMMENDS that Petitioner's Motion for Bond be DENIED. Objections to R&R due by 12/15/2014. Signed by Magistrate Judge Terence P Kemp on 11/26/2014. (pes1)(This document has been sent by the Clerks Office by regular and certified mail (7009 2820 0003 5796 2945) to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
HENRY N. HARPER,
CASE NO. 2:14-CV-1220
JUDGE GREGORY L. FROST
MAGISTRATE JUDGE KEMP

Petitioner,
v.
WARDEN, BELMONT
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 Petitioner’s Motion for
Release, Respondent’s Response in Opposition, and Petitioner’s Reply. For the reasons
that follow, the Magistrate Judge RECOMMENDS that Petitioner’s Motion for Bond
(Doc. 8) be DENIED.
In an Opinion and Order overruling the issues raised in Petitioner’s first appeal,
the Ohio Fifth District Court of Appeals summarized the facts and procedural history of
this case as follows:
On May 7, 2010 appellant was employed by Little Bear
Construction which is owned by David Ratliff, it was Friday
and a pay day. There was a disagreement at work and
appellant left the work sight and went to the home of Mr.
Ratliff. Appellant was anxious, excited, and argumentative.
After leaving Mr. Ratliff's residence, appellant arrived at the
residence of a friend, Charles Dalton, at approximately 5:30
p.m. At the Dalton residence, appellant was observed to be
agitated and in possession of a black handgun.

At approximately 7:30 p.m. appellant's wife, Tina Harper,
arrived home from running errands to find her husband
drinking and upset. Appellant said to his wife, “Bitch, you're
going to take me down there,” meaning to Mr. Ratliff's
residence. (T. at 287). Appellant was knocking things off the
kitchen counter, breaking things, and would not calm down.
Appellant knocked a frying pan off the stove and ordered
Mrs. Harper to drive him to Mr. Ratliff's home. Appellant
stated that he was going to “teach him a lesson.” (T. at 288).
Mrs. Harper drove appellant and they stopped at different
places including a service station and a friend's home.
Mrs. Harper was scared and afraid of appellant. (T. at
287–288.) Appellant threatened his wife during the incident,
showing her the butt of his gun while she was driving and
waving the gun around next to her. Appellant gave his wife
directions to the Ratliff home, telling her that if she pulled
over or made a scene he would beat her head in with the
gun. Appellant told his wife that he was going to “shoot up”
Mr. Ratliff's truck, and when they arrived at the residence,
appellant put his arm out the window and Mrs. Harper
heard several gunshots.
After this incident, appellant came into contact with a friend
Robert Webb, to whom he relayed the information that he
had “just shot at some people.” (T. at 271).
At 10:27 p.m. on May 7, 2010, the Guernsey County Sheriff's
Office received a call regarding shots being fired at the
residence of David Ratliff. Upon arrival at the scene, the
deputies discovered several spent Winchester 9 mm casings
along the roadway in front of the residence. Mr. Ratliff
informed the deputies that earlier that day he had a
disagreement with appellant regarding some occurrences on
a job site.
At approximately 11:30 p.m. on the same night, the deputies
were en route to the Sheriff's Office when they received
another call regarding a man with a pistol. Upon learning
that the subject of the call was appellant, the deputies went
to appellant's home. Appellant was not at the residence, but
his wife arrived shortly after the deputies, driving a silver

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S–10 pickup truck. At the time of her arrival at the residence,
Mrs. Harper told the deputies that she did not know the
current whereabouts of appellant.
Mrs. Harper permitted the deputies to search the residence.
During that search, the deputies discovered a partial box of
Winchester 9 mm bullets and empty gun boxes. Also on the
property, the deputies located a minivan behind a building.
The hood of the van was warm as if the van had been
recently driven. Mrs. Harper eventually admitted she had
driven appellant to the residence of a Mr. Dalton.
Upon arriving at Mr. Dalton's residence, the deputies patted
appellant down for weapons. At the Sheriff's Office,
appellant submitted to a gunshot residue swab. Appellant
was asleep in the holding cell and his right arm was resting
underneath his body. When the deputy asked appellant for
his left hand in order to conduct the gunshot residue test
appellant raise his left arm straight up in the air allowing the
deputy to conduct the test. When the deputy asked for his
right hand, appellant did not answer or otherwise comply
with the request. Appellant tested positive for gunshot
residue.
Testimony was introduced at trial that appellant owned a
gun and that he had it with him that night. In addition
appellant acknowledged that he had been convicted of a
felony about twenty-five (25) years before the night in
question. Further it was acknowledged that there was no
record that was attached or a part of the original case to
indicate that appellant had expunged or sealed that record.
However, appellant testified that he had purchased guns
legally since his previous felony and had gone through
records checks for those purchases. He had further passed
records checks for federal employment and other jobs that
he had held. Finally, appellant testified that he had asked his
attorney to file and seal his record and that he thought that
had been done some years before the incidents which
occurred May 7, 2010 and which resulted in these charges
being filed.
On May 25, 2010, appellant was indicted by the Guernsey
County Grand Jury for the following:

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Having Weapons While Under Disability in violation of R.C.
2923.13, with a Firearm Specification, a felony of the third
degree;
Tampering With Evidence in violation of R.C. 2921.12(A)(1),
a felony of the third degree;
Discharge of Firearm on or Near Prohibited Premises in
violation of R.C. 2923.162, a misdemeanor of the first degree;
and
Kidnapping in violation of R.C. 2905.01(A)(1) and (2), with a
Firearm Specification, a felony of the first degree.
On October 15, 2010, the jury returned the following
verdicts:
GUILTY of Having Weapons While Under Disability in
violation of R.C. 2923.13;
NOT GUILTY of Tampering With Evidence in violation of
R.C. 2921.12(A)(1), a felony of the third degree;
GUILTY of Discharge of Firearm on or Near Prohibited
Premises in violation of R.C. 2923.162, a misdemeanor of the
first degree; and
GUILTY of Kidnapping, a felony of the second degree.
On November 3, 2010, appellant was sentenced to three
years imprisonment for Count 1, six months imprisonment
for Count 3, two years imprisonment for Count 4, and three
years imprisonment for the Firearm Specification to Count 4.
The three year mandatory sentence for the Firearm
Specification was ordered to be served first with all
remaining prison terms to be served consecutively, for a
total of eight years imprisonment.
State v. Harper, 2013 WL 5536938, at *1-3 (Guernsey Co. App. Oct. 2, 2013).

That

decision overruled Petitioner’s assignments of error and affirmed his conviction. On

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February 19, 2014, the Ohio Supreme Court declined jurisdiction to hear the appeal.
State v. Harper, 138 Ohio St.3d 1414 (Ohio Feb. 19, 2014).
In its Opinion and Order addressing Petitioner’s appeal from the denial of a postconviction proceeding, the state court of appeals provided this further procedural
history:
On November 22, 2011, appellant filed a Motion for Sentence
Reduction in the trial court. The trial court denied the
Motion for Sentence Reduction via Judgment Entry filed
January 10, 2012.
On January 19, 2012, appellant filed a Petition for
Post–Conviction Relief. Appellant, in his petition, alleged
that the trial court had erred in failing to inform his wife,
Tina Harper, that she did not have to testify against
appellant, that his trial counsel, Lindsey Donehue, was
ineffective in failing to object when appellant's wife was
called as a witness against him, and that his property had
been illegally searched without a search warrant. Appellant
also alleged that his conviction for having weapons while
under disability was based on perjured testimony from
Detective Sam Williams, that Williams altered appellant's
Miranda rights form, that his convictions for kidnapping and
having weapons while under disability were against the
manifest weight and sufficiency of the evidence, and that his
trial counsel was ineffective in failing to obtain any evidence
on appellant's behalf or to subpoena witnesses. The trial
court denied appellant's petition pursuant to an Entry filed
on January 25, 2012, finding that the same was not timely
filed.
Appellant then appealed from the trial court's January 10,
2012 Judgment Entry, raising the following assignments of
error:
“I. HAVING WEAPONS WHILE UNDER DISABILITY:
IMPROPER DEGREE OF FELONY.

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“II. PERJURY OHIO REVISED CODE 2921.11 EVIDNCE
[SIC] RULE 602: DETECTIVE SAM WILLAIMS [SIC]
COMMITTED PERJURY AT TRIAL UNDER OATH WHEN
HE TESTIFIED THAT HE HAD A COPY OF A
COMPUTERIZED CRIMINAL HISTORY ON THRE [SIC]
APPELLANT HENRY N. HARPER SHOWING A 1985
FELONY CONVICTION ALSO VIOLATING EVIDENCE
RULE 602.
“III. CONSECUTIVE SENTENCING OHIO REVISED CODE
2929 .41 WAS IMPROPER DUE TO THE FACT OF
JUDICIAL FACT–FINDING MUST OCCUR BEFORE
CONSECUTIVE SENTENCES MAY BE IMPOSED UNDER
O.R.C. 2929.14(E)(4).
“IV. KIDNAPPING OHIO REVISED CODE 295.01 NO
ELEMENTS OF THE CRIME OF KIDNAPPING WERE
PROVEN AT TRIAL. THERE IS NO KIDNAPPING VICTIM.
“V. GUN SPECIFICATIO [SIC] OHIO REVISED CODE
2941.145 GUN SPECIFICATION OF O.R.C. IS IMPROPER
AND CONTRARY TO LAW. NONE OF THE ELEMENTS
FOR A GUN SPEC. O.R.C. 2941.145 WERE PROVEN AT
THE TRIAL.”
Appellant also appealed from the trial court's January 25,
2012 Judgment Entry, raising the following assignments of
error on appeal:
“I. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL:
LINDSEY K. DONEHUE.
“II. INCORRECT CHARGE OF DEGREE OF FELONY:
PERJURY O.R.C. 2921.11.
“III. UNITED STATES CONSTITUTIONAL
VIOLATION AMENDMENT FOUR.

RIGHTS

“IV. UNITED STATES CONSTITUTIONAL RIGHT
VIOLATION AMENDMENT SIX: [SIC] FIVE, FOURTEEN.
“V. NO EVIDENCE TO SUPPORT THE ELEMENT OF
EITHER CRIME WERE PROVEN.”

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The two cases were assigned Case Nos.2012 CA 000003 and
2012 CA 000008.
Subsequently, via an Opinion filed on July 30, 2012 in State
v. Harper, 5th Dist. Nos. 12CA000003, 12CA000008,
2012–Ohio–3541, this Court affirmed the judgment of the
trial court in such cases. This Court, in our Opinion, held, in
relevant part, as follows:
“Because our disposition of Appellant's five assignments of
error in both Appeals requires the same analysis, we shall
address said assignments of error together.
“ ‘Under the doctrine of res judicata, a final judgment of
conviction bars the convicted defendant from raising and
litigating in any proceeding, except an appeal from that
judgment, any defense or any claimed lack of due process
that was raised or could have been raised by the defendant
at the trial which resulted in that judgment of conviction or
on an appeal from that judgment.’ “ State v. Perry (1967), 10
Ohio St.2d 175, 226 N.E.2d 104, paragraphs eight and nine of
the syllabus.
“In his direct appeal, Appellant asserted three assignments
of error, which are set forth supra. To summarize,
Appellant's first assignment of error challenged the
sufficiency and weight of the evidence; his third assignment
of error challenged the effectiveness, or lack thereof, of trial
counsel; and his remaining assignment of error challenged
the propriety of the jury instructions. As stated supra, we
affirmed Appellant's conviction and sentence, finding these
assignments of error to be without merit.
“In the instant appeals, Appellant again challenges the
sufficiency and weight of the evidence as well as the
effectiveness of trial counsel. Because Appellant raised these
issues on direct appeal, he is barred by the doctrine of res
judicata from relitigating such again.
“Appellant did not, however, on direct appeal, challenge the
constitutionality of his conviction and sentence, or the
alleged perjury of Detective Sam Williams when he testified

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regarding Appellant's criminal history. These issues could
have been raised on direct appeal. Having failed to do so,
Appellant is likewise barred by the doctrine of res judicata to
assert these two claims.” Id at paragraphs 23–27.
On March 14, 2012, while the above cases were pending,
appellant filed a Second Petition for Post–Conviction Relief.
Appellant, in his petition, alleged that Deputies had
committed an illegal search and seizure of his home without
a search warrant, that his wife, who testified against him,
was threatened with criminal charges, was lied to by and
illegally detained by police and that Detective Sam Williams
tampered with evidence, including appellant's Miranda
rights form, and that Williams' trial testimony was
inconsistent. Appellant also alleged that there was
insufficient evidence supporting the kidnapping charge
against him and that his conviction was against the manifest
weight of the evidence and that his trial counsel, Lindsey
Donehue, was ineffective in failing to subpoena two
witnesses after appellant asked her about them and in failing
to show transcripts to the jury. Appellant also alleged that
his bail was excessive and that there was insufficient
evidence supporting his conviction for having weapons
while under disability. Appellant, in his petition, also
alleged that this Court, in our previous opinion, incorrectly
stated that appellant was convicted of kidnapping, a felony
of the first degree, and a firearm specification to count one
while appellant actually was convicted of kidnapping, a
felony of the second degree, and was not convicted of a
firearm specification as to count one.

Pursuant to a Judgment Entry filed on May 17, 2012, the trial
court denied appellant's petition, finding that it was not
timely filed and that appellant either raised, or could have
raised, the same issues in his direct appeal.
Appellant now appeals from the trial court's May 17, 2012
Judgment Entry denying his Second Petition for
Post–Conviction Relief, raising the following assignments of
error on appeal:

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“I. THE COURT FAILS TO ACKNOWLEDGE FACTUAL
FACTS TO SUPPORT THE COURT'S STATEMENTS.
“II. THE COURT FAILS TO ACKNOWLEDGE THE LEGAL
DOCUMENTS
PROVIDED
WITH
THE
POST–CONVICTION RELIEF.
“III. THE TRIAL COURT FAILS TO ACKNOWLEDGE THE
SEVERAL FALSE, INCORRECT, STATEMENTS IN THE
STATE OF OHIO'S APPELLEE BRIEF.
“IV. THE TRIAL COURT ERRERED [SIC] IN THE MOTION
TO ACQUITTAL (29)(A).
“V. THE TRIAL COUNSEL WAS INEFFECTIVE BY NOT
ASKING FOR MOTION FOR ACQUITTAL PROPERLY
AND VIOLATIONS OF UNITED STATES
CONSTITUTIONAL RIGHT AMEND. SIX.”
This Court affirmed the judgment of the trial court on
November 5, 2012, finding that the second petition for
postconviction relief was untimely, and all issues raised
therein were res judicata.
On September 21, 2012, during the pendency of his appeal
from the judgment denying his second petition for
postconviction relief, appellant filed a petition to vacate or
set aside his judgment of conviction and sentence. The trial
court denied this petition on September 24, 2012. Appellant
appeals, assigning the following errors:
“I. THE SENTENCE IS A VOID SENTENCE AND
UNCONSTITUTIONAL SENTENCE AS PURSUANT TO
OHIO REVISED CODE 2905.01 KIDNAPPING (A)(1)(2)(A)
NO PERSON, BY FORCE, THREAT, OR DECPTION [SIC],
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; (1) TO HOLD FOR
RANSOM, OR AS A SHEILD [SIC] OR HOSTAGE; (2) TO
FACILITATE THE COMMISSION OF ANY FELONY OR

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FLIGHT THEREAFTER; SEE AFFIDAVIT FROM TINA
HARPER NEITHER ELEMENT OF THE CRIME OF
KIDNAPPING WHERE [SIC] PROVEN AT TRIUAL [SIC].

“II. THE SENTENCE IS A VOID SENTENCE AND
UNCONSTITUTIONAL SENTENCE AS PURSUANT TO
OHIO REVISED CODE 2941.145; SPECIFICATION
CONSERNING [SIC] USE OF A FIREARM TO FACILITATE
OFFENSE: THERE IS NO PROOF OR EVIDENCE
SUPPORTING THE USE OR FACILITATION OF A
FIREARM TO COMMIT THE OFFENSE OF KIDNAPPING.

“III. THE SENTENCE IS A VOID SENTENCE AND
UNCONSTITUTIONAL SENTENCE AS PURSUANT TO
OHIO REVISED CODE 2923.13 HAVING WEAPONS
WHILE UNDER DISABILITY: BALDWINS OHIO
PRACTRICE [SIC] KATZ & GANNILLEI OHIO CRIMINAL
LAWS AND RULES: ELEMENTS OF THE OFFENSE:
PENALTY 5TH DEGREE FELONY THERE WHERE [SIC]
NO ELEMENTS TO PROVE THAT THE HAVING
WEAPONS WHILE UNDER DISABILITY WAS A THIRD
DEGREE FELONY.”
State v. Harper, 2013 WL 1858606, at *1-3 (Guernsey Co. App. April 26, 2013). The
appellate court denied Petitioner’s appeal. Id. On February 19, 2014, the Ohio Supreme
Court declined jurisdiction to hear the appeal. State v. Harper, 131 Ohio St.3d at 1414.
On September 5, 2014, Petitioner filed the instant petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. He asserts that the evidence is constitutionally
insufficient to sustain his conviction on kidnaping and his conviction on kidnaping is
against the manifest weight of the evidence (claim one); he was denied a fair trial due to
improper jury instructions (claim two); he was denied the effective assistance of counsel

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(claim three); and that he was convicted in violation of the Fourth Amendment (claim
four).
Petitioner argues that this case constitutes one of extraordinary circumstances
warranting his release. This is so, according to Petitioner, because the evidence is
constitutionally insufficient to sustain his conviction on kidnaping and the alleged
victim has now recanted.

Petitioner alleges that his convictions are the result of

prosecutorial misconduct and he was convicted in violation of the Fourth Amendment.
Petitioner states that he does not pose a risk of flight and that he needs to be released to
repair his relationship with his sons and obtain a job. Finally, Petitioner notes that his
prior record includes only one conviction from twenty-five years ago. These arguments
fail to establish that Petitioner’s release pending a decision on this habeas corpus
petition is warranted.
To be released on bail pending a decision on the merits of a habeas petition, a
petitioner must show a substantial claim of law based on the facts surrounding the
petition and must also present circumstances making the motion for bail “exceptional
and deserving of special treatment in the interests of justice.” Dotson v. Clark, 900 F.2d
77, 79 (6th Cir. 1990) (citing Aronson v. May, 85 S.Ct. 3, 5

(1964)(Douglas, J., in

chambers). “There will be few occasions where a prisoner will meet this standard.”
Dotson, 900 F.2d at 79. Because a habeas petitioner “is appealing a presumptively valid
state conviction ... it will indeed be the very unusual case where a habeas petitioner is
admitted to bail prior to a decision on the merits in the habeas case.”
F.2d 869, 871 (6th Cir. 1993). This is not such a case.

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Lee v. Jabe, 989

The Ohio Court of Appeals and Ohio Supreme Court have affirmed Petitioner’s
convictions and sentence on direct appeal and the state courts repeatedly have refused
to grant him relief. This Court presumes the factual findings of the state appellate court
to be correct. On the merits, Petitioner has the burden of establishing that the state
appellate court made unreasonable findings in view of the facts presented. See Burt v.
Titlow, --- U.S. ---, ---, 134 S.Ct. 10, 16 (2013)(quoting Harrington v. Richter, --- U.S. ---, ---,
131 S.Ct. 2011); 28 U.S.C. 2254(d), (e). Without prejudging the merits of the case, the
Court finds that Petitioner has not yet made such a showing. Even his claim that the
victim recanted is not sufficient at this point to justify bail. “Victim recantations are
viewed with great suspicion, especially when the victim has a prolonged and intimate
relationship with the defendant....” Young v. Lafler, 2010 WL 3210880, at *1 (W.D. Mich.
Aug. 10, 2010)(citing United States v. Willis, 257 F.3d 636, 645 (6th Cir.2001) and United
States v. Chambers, 944 F.2d 1253, 1264 (6th Cir. 1991)). Further, this Court is unable to
determine whether his claims may be procedurally defaulted or time-barred, and the
Respondent has not yet filed a response to the petition. There is therefore nothing so
extraordinary about this case that an order of bail should issue.
Under these circumstances, the Magistrate Judge RECOMMENDS that
Petitioner’s request for release be DENIED.
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

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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/ Terence P. Kemp
United States Magistrate Judge

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