Pickens v. Warden, Ross Correctional Institution

Filing 10

OPINION AND ORDER adopting Report and Recommendations re 8 Report and Recommendations.. Signed by Judge James L. Graham on 1/24/2017. (ds)(This document has been sent by regular mail 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
DANNY A. PICKENS,
CASE NO. 2:15-CV-2305
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth A. Deavers

Petitioner,
v.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On December 27, 2016, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be dismissed. (ECF No. 8.) Petitioner has filed an Objection to the Magistrate Judge’s Report
and Recommendation. (ECF No. 9.) 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. 9) is

OVERRULED.

The Report and Recommendation (ECF No. 8) is ADOPTED and

AFFIRMED. This action is hereby DISMISSED.
This case involves Petitioner’s convictions after a jury trial in the Franklin County Court
of Common Pleas on aggravated burglary, violation of a protection order, and domestic violence.
Petitioner asserts that he was denied the effective assistance of appellate counsel because his
attorney failed to raise on appeal a claim that his sentences on aggravated burglary and violation
of a protection order should have been merged, and that he was denied the effective assistance of
trial counsel based on his attorney’s failure to raise the issue at sentencing. The Magistrate
Judge recommended dismissal of these claims on the merits.

Petitioner objects to the Magistrate Judge’s recommendations. Petitioner maintains that
the state appellate court incorrectly determined that he committed two separate criminal acts, and
that this factual finding is objectively unreasonable, as he acted with one intent – i.e., that of
retrieving his cellular phone.

Petitioner maintains that the trial court properly merged his

convictions on domestic violence and violation of a protective order, and therefore should also
have merged his convictions on aggravated burglary and violation of a protection order.
According to Petitioner, application of Ohio Revised Code § 2941.25, regarding the merger of
multiple counts, and the Ohio Supreme Court’s decisions in State v. Johnson, 128 Ohio St.3d
153 (Ohio 2010), and State v. Ruff, 143 Ohio St.3d 114 (Ohio 2015), demonstrate that his
convictions on aggravated burglary and violation of a protection order violate the Double
Jeopardy Clause.
For the reasons discussed by the Magistrate Judge, this Court is not persuaded by
Petitioner’s arguments. The state appellate court found that, although it is possible by the same
conduct to commit both an aggravated burglary and a violation of a protective order under Ohio
law, that Petitioner’s convictions on such offenses did not merge in view of the particular facts of
this case. Petitioner testified that he arrived at the residence of Tameka Ervin intending only to
retrieve his cell phone, but he kicked in the front door and entered the home, chasing her with a
hammer and inflicting physical harm when she refused to comply. The state appellate court’s
conclusion that these facts established two offenses with a separate animus as to each – as
Petitioner’s conduct resulting in the violation of the protection order was clearly separate from
his conduct in kicking in the door, chasing her with a hammer and causing physical harm – was
not unreasonable so as to justify federal habeas corpus relief. See 28 U.S.C. § 2254(d), (e).
Further, this Court defers to the state court’s construction of its own statutes concluding that the

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offenses in question did not constitute allied offenses of similar import. See Kilby v. Court of
Common Pleas of Montgomery County, No. 3:14-cv-317, 2015 WL 1729881, at *2 (S.D. Ohio
April 13, 2015).
For the foregoing reasons and for the reasons detailed in the Magistrate Judge’s Report
and Recommendation, Petitioner’s Objection (ECF No. 9) is OVERRULED. The Report and
Recommendation (ECF No. 8) is ADOPTED and AFFIRMED.

This action is hereby

DISMISSED.
Date: January 24, 2017
_______s/James L. Graham_______
JAMES L. GRAHAM
United States District Judge

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