Davis v. Warden Southern Ohio Correctional Facility
OPINION AND ORDER adopting 24 Report and Recommendations. Petitioner's request for an evidentiary hearing and a certificate of appealability presented in his objections are denied. This action is dismissed. Signed by Judge George C. Smith on 1/5/2017. (kk)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification [Levander Davis, A656768 @ Mansfield Correctional Institution, PO Box 788, Mansfield OH 44901])
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Case No. 2:15-cv-00613
JUDGE GEORGE C. SMITH
Magistrate Judge King
DONALD MORGAN, WARDEN,
OPINION AND ORDER
On November 2, 2016, the Magistrate Judge denied Petitioner’s Motion to Expand the
Record (ECF No. 19) and recommended that the petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 be dismissed.
Order and Report and Recommendation (ECF No. 24).
Petitioner has objected to that recommendation. Objection (ECF No. 27). Pursuant to 28 U.S.C.
§ 636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner’s
Objection (ECF No. 27) is OVERRULED. The Order and Report and Recommendation (ECF
No. 24) is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Petitioner’s request for an evidentiary hearing and a certificate of appealability, presented
in his objections, are DENIED.
Petitioner was convicted, following a jury trial in the Franklin County Court of Common
Pleas, on charges of murder, attempted murder, felonious assault, and having a weapon while
under disability, with firearm specifications. The charges arose out of the March 2012 shooting
at Mike’s Bar, which resulted in the death of one individual and the injury of another. The trial
court sentenced Petitioner to an aggregate term of 44 years to life. The state appellate court
affirmed the judgment of the trial court, and the Ohio Supreme Court declined to accept
jurisdiction of the appeal. Petitioner filed an application to reopen the appeal pursuant to Ohio
Appellate Rule 26(B); however, the state appellate court denied the application, and Petitioner
failed to file a timely appeal from that decision to the Ohio Supreme Court. Petitioner also
pursued post-conviction relief, but without success. In this habeas corpus action, Petitioner
claims that the trial court improperly denied his motion for judgment of acquittal (claim one);
that his convictions are against the manifest weight of the evidence (claim two); that his DNA
evidence was admitted in violation of the Fourth Amendment (claim three); that the trial court
improperly imposed consecutive terms of incarceration on the firearm specifications (claim
four); that DNA samples were improperly handled (claim five); that the investigator’s
contamination of crime scene evidence violated due process (claim six); that the pre-trial photo
array identification procedures violated due process (claim seven); that the evidence was
constitutionally insufficient to sustain his convictions (claim eight); and that he was denied the
effective assistance of trial and appellate counsel (claims nine and ten). The Magistrate Judge
recommended dismissal of Petitioner’s claims as procedurally defaulted or otherwise failing to
provide a basis for relief.
Petitioner objects to the Magistrate Judge’s recommendation of dismissal of claim three,
in which he alleges that admission of his DNA into evidence at trial violated the Fourth
Amendment. Citing Stone v. Powell, 428 U.S. 465, 493 (1976)(“[W]here the State has provided
an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not
be granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.”)(footnotes omitted),
Magistrate Judge reasoned that the claim fails to provide a basis for relief. Petitioner alleges that
he was denied the effective assistance of counsel because his attorney failed to file a motion to
suppress his DNA evidence which, he alleges, was obtained by an illegal, unsigned search
warrant. See Return of Writ (ECF No. 9-1, PageID# 223, 225). Petitioner contends that this
claim of the denial of the effective assistance of counsel was properly preserved when it was
raised in Petitioner’s post-conviction proceedings, because it relies on evidence not readily
apparent from the face of the record, i.e., an allegedly unsigned search warrant. Petitioner argues
that Stone v. Powell does not preclude federal habeas review of this Fourth Amendment claim in
view of Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982)(Federal habeas relief is available when a
criminal defendant is not allowed to fully present his Fourth Amendment claim in the state courts
because of unanticipated and unforeseeable application of a procedural rule which prevents state
court consideration of the merits of the claim.). According to Petitioner, Ohio’s procedural
mechanism for raising his Fourth Amendment claim failed in his case, because the state courts
refused to hold an evidentiary hearing in his post-conviction proceedings, thus preventing him
from establishing that the search warrant was unsigned, and that his attorney performed in a
constitutionally ineffective manner by failing to file a motion to suppress his DNA evidence on
that basis. Additionally, Petitioner argues that this Court should address the merits of his Fourth
Amendment claim because the state courts willfully refused to apply correct and controlling
constitutional standards. Objection (ECF No. 27, PageID# 714). Petitioner complains that the
trial court waited until after the filing of this § 2254 petition to issue a decision denying his
petition for post-conviction relief, and that the state trial and appellate courts falsely indicated
that no evidence supported his allegation that the search warrant had not been signed. Petitioner
objects to the Magistrate Judge’s denial of his Motion to Expand the Record in connection with
Petitioner’s arguments are not persuasive. Nothing prevented Petitioner from filing a
pre-trial motion to suppress evidence to present his claim that his DNA had been procured
through an allegedly unsigned and illegal search warrant. See Ohio R. Crim. P. 12(C)(3).
Petitioner’s failure to do so does not establish a failure or unanticipated application of Ohio’s
mechanism for presenting Fourth Amendment claims so as to permit review of this claim in
“[T]he Powell ‘opportunity for full and fair consideration’ means an
available avenue for the prisoner to present his claim to the state courts, not an inquiry into the
adequacy of the procedure actually used to resolve that particular claim. . . . In the absence of a
sham proceeding, there is no need to ask whether the state court conducted an evidentiary
hearing or to inquire otherwise into the rigor of the state judiciary's procedures for resolving the
claim.” Good v. Berghuis, 729 F.3d 636,639 (6th Cir. 2013). Further, Petitioner procedurally
defaulted his claim of the denial of the effective assistance of trial counsel in this regard, because
he failed to raise the issue on direct appeal, where he was represented by new counsel.
In any event, and contrary to Petitioner’s allegation here, it appears from the record that
the warrant was in fact signed. The trial court indicated in its April 23, 2015, decision denying
Petitioner’s petition for post-conviction relief, that
[t]he Defendant’s claim regarding the warrant for the DNA was
improper is incorrect. Defendant makes the claim that the warrant
was never signed when in fact it was. In addition, each of the
Defendant’s claims in his post conviction petition could have been
or were addressed on direct appeal and are, therefore, barred by the
doctrine of res judicata.
State v. Davis, No. 15AP-518, 2015 WL 6522858, at *3 (Ohio App. 10th Dist. Oct. 29,
2015)(citation omitted). See also Return of Writ (ECF No. 9-1, PageID# 246)(referring to the
fact that “the signed warrant is part of the record.”) Although Petitioner disputes the trial court’s
factual finding that the search warrant had been signed, the appellate court affirmed the decision
of the trial court. In so doing, the state appellate court also noted that “Davis’s DNA was in
possession of the State of Ohio as a result of his past criminal activity.” Id. Therefore, Petitioner
could not have established prejudice, as that term is defined in Strickland v. Washington, 466
U.S. 668 (1984), because the State had access to his DNA even without the evidence obtained
through the search warrant. Petitioner’s objection in this regard is therefore without merit.
Petitioner also objects to the recommendation that claim four be dismissed as
According to Petitioner, the imposition of consecutive terms of
incarceration on firearm specifications implicates the “void sentence doctrine,” so that the claim
cannot be barred from habeas corpus review. Objection (ECF No. 27, PageID# 723.) Petitioner
further objects to the Magistrate Judge’s recommendation that other claims be dismissed as
procedurally defaulted, again asserting that the denial of the effective assistance of appellate
counsel constitutes cause for his procedural default in failing to raise these claims on direct
appeal. He insists that the interference of prison officials prevented him from filing a timely
appeal in Rule 26(B) proceedings, thereby establishing cause for his procedural default of his
claim of the ineffective assistance of appellate counsel. According to Petitioner, he timely
submitted the appropriate documents for the filing of the appeal, but prison officials lost or
misplaced those documents, thus causing the Clerk of the Ohio Supreme Court to return his
filing as deficient. Alternatively, Petitioner argues that the failure to file a timely appeal to the
Ohio Supreme Court in his Rule 26(B) proceedings should not constitute a procedural default of
a claim of the denial of the effective assistance of appellate counsel, because the Ohio Supreme
Court permits the filing of a motion for a delayed appeal on direct review. Petitioner requests an
evidentiary hearing to further develop the record on these issues.
This Court has repeatedly held that the failure to file a timely appeal to the Ohio Supreme
Court in Rule 26(B) proceedings constitutes a procedural default of a claim of the denial of the
effective assistance of appellate counsel; the fact that Ohio permits the filing of a motion for a
delayed appeal on direct review does not alter this conclusion. See, e.g., Wright v. Lazaroff, 643
F.Supp.2d 971, 987-88, 994 (S.D. Ohio 2009)(Petitioner procedurally defaulted his claim of the
denial of the effective assistance of appellate counsel when he failed to timely appeal the
appellate court’s decision denying his Rule 26(B) application to the Ohio Supreme Court and
post conviction claims by failing to file timely post conviction appeal); Johnson v. Turner, No.
2:14-cv-01908, 2016 WL 6963177, at *6 (S.D. Ohio Nov. 29, 2016)(same); Hudson v. Smith,
No. 2:09-cv-0030, 2010 WL 2671273, at *6 (S.D. Ohio June 30, 2010)(same). Further, it is the
Petitioner’s burden to establish cause and prejudice sufficient to overcome a procedural default.
See Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001)(citation omitted). Nothing in the record
suggests that Petitioner could establish that prison officials prevented him from timely filing his
appeal in 26(B) proceedings to the Ohio Supreme Court by mailing the wrong, incorrect, or
modified documents on his behalf. Additionally, the doctrine of procedural default applies
equally to claims involving the alleged improper imposition of consecutive terms of
incarceration or of a void sentence, and the record reflects no reason not to enforce Petitioner’s
waiver of such claim here. For the reasons detailed in the Magistrate Judge’s Order and Report
and Recommendation, this Court agrees that, viewing all the evidence in the light most favorable
to the prosecution, see Jackson v. Virginia, 443 U.S. 307 (1979), the evidence is constitutionally
sufficient to sustain Petitioner’s convictions, and such claim fails to provide him a basis for
relief. Moreover, the record fails to reflect that an evidentiary hearing is required to resolve
Petitioner’s claims. See Mills v. Larose, No. 1:13-cv-1059, 2015 WL 687829, at *12 (N.D. Ohio
Feb. 18, 2015)(where the existing record precludes granting habeas relief, the district court need
not conduct an evidentiary hearing)(citing Schriro v. Landrigan, 550 U.S. 465, 474 (2007));
Myers v. Tennessee, No. 2:11-cv-00045, 2016 WL 1230740, at *3 (M.D. Tenn. March 29,
2016)(citing Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003)(an evidentiary hearing is
not required when the record conclusively shows that the petitioner is not entitled to relief).
For all of the foregoing reasons, and for the reasons discussed in the Magistrate Judge’s
Order and Report and Recommendation, Petitioner’s Objection (ECF No. 27) is OVERRULED.
The Order and Report and Recommendation (ECF No. 24) is ADOPTED and AFFIRMED.
Petitioner’s Motion to Expand Record (ECF No. 19) is DENIED. Petitioner’s request for an
evidentiary hearing is DENIED.
This action is hereby DISMISSED. The Clerk is DIRECTED to enter FINAL
Petitioner has requested a certificate of appealability. “In contrast to an ordinary civil
litigant, a state prisoner who seeks a writ of habeas corpus in federal court holds no automatic
right to appeal from an adverse decision by a district court.” Jordan v. Fisher, — U.S. —. —,
135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1)(requiring a habeas petitioner to obtain a
certificate of appealability in order to appeal). In order to secure a certificate of appealability,
the petitioner must make a substantial showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C. §
2253(c)(2)). To make a substantial showing of the denial of a constitutional right, a petitioner
must show “that reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were
‘adequate to deserve encouragement to proceed further.’” Slack, 529 U.S. at 484 (quoting
Barefoot, 463 U.S., at 893 n. 4).
Where the Court dismisses a claim on procedural grounds, however, a certificate of
appealability “should issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in its procedural
ruling.” Id. Thus, there are two components to determining whether a certificate of appealability
should issue when a claim is dismissed on procedural grounds: “one directed at the underlying
constitutional claims and one directed at the district court's procedural holding.” Id. at 485. The
court may first “resolve the issue whose answer is more apparent from the record and
The Court is not persuaded that Petitioner has established that reasonable jurists would
debate either whether he has presented a valid claim of the denial of a constitutional right or
whether the Court correctly dismissed Petitioner’s claims as procedurally defaulted. Therefore,
Petitioner’s request for a certificate of appealability is DENIED.
\s\ George C. Smith__________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
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