Poulton v. Warden, Ross Correctional Institution

Filing 19

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus: The Magistrate Judge RECOMMENDS that Petitioner's Motion to Stay 9 be GRANTED; that Respondent's Motion to Dismiss 6 on grounds of exhaustion at this time be DENIED ; and that Petitioner be DIRECTED advise the Court of the status of state court proceedings on his petition for post conviction relief every sixty (60) days. Objections to R&R due by 6/20/2016. Signed by Magistrate Judge Elizabeth Preston Deavers on 6/1/2016. (mas)(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
ADAM C. POULTON,
CASE NO. 2:15-CV-02352
CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Elizabeth A. Preston Deavers

Petitioner,
v.
WARDEN, ROSS 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 Petition; Respondent’s Motion to
Dismiss; Petitioner’s Motion to Stay and Response in Opposition to Motion to Dismiss;
Respondent’s Reply and Opposition to Petitioner’s Motion for Stay; Petitioner’s Supplemental
Memorandums in Support of Motion for Stay; and the exhibits of the parties. Respondent has
provided, in response to this Court’s Order, February 26, 2016 (ECF No. 14), Supplemental
Memorandums regarding the current status of state court proceedings in this case. (See ECF
Nos. 15, 17.)

For the reasons that follow, the Magistrate Judge RECOMMENDS that

Petitioner’s Motion to Stay (ECF No. 9) be GRANTED; that Respondent’s Motion to Dismiss
(ECF No. 6) on grounds of exhaustion at this time be DENIED; and that Petitioner be
DIRECTED advise the Court of the status of state court proceedings on his petition for post
conviction relief every sixty (60) days.
Facts and Procedural History
The Ohio Fifth District Court of Appeals summarized the facts and procedural history of
the case as follows:

On January 10, 2013, Dresden Police Officer Scott Caldwell was
on routine patrol when he observed an African–American male,
later identified as Jeffrey Body, enter a residence at 801 Canal
Street, in an area known for illegal drug activity. Officer Caldwell
also noticed a Cadillac automobile moving through the area. A few
minutes later, he returned to the area of the residence and saw a
number of people in the middle of the street. Officer Caldwell then
saw Body, with blood on his person, running away from the group
of people. The officer notified the Muskingum County Sheriff's
Office for assistance. Body thereafter told investigators that he had
been jumped and robbed by three or four males. During the
altercation, Body suffered several broken bones to his face and was
robbed of his wallet and automobile.
After appellant was apprehended, he was interviewed by Detective
Brady Hittle of the Muskingum County Sheriff's Office. The
interview was recorded on DVD, as further analyzed infra.
On January 16, 2013, the Muskingum County Grand Jury indicted
appellant on the following charges:
1) Aggravated Robbery with a firearm specification and repeat
violent offender specification, a felony of the first degree, R.C.
2911.01(A)(1), 2941.145, and 2941.149;
2) Aggravated Robbery with a firearm specification and repeat
violent offender specification, a felony of the first degree, R.C.
2911.01(A)(3), 2941.145, and 2941.149;
3) Felonious Assault with a firearm specification and repeat violent
offender specification, a felony of the second degree, R.C.
2903.11(A)(1), 2941.145, and 2941.149;
4) Theft (motor vehicle), a felony of the fourth degree, R.C.
2913.02(A)(1);
5) Having a Weapon While Under Disability, a felony of the third
degree, R.C. 2923.13(A)(2);
6) Having a Weapon While Under Disability, a felony of the third
degree, R.C. 2923.13(A)(3);
7) Theft ($1,000–$7,500), a felony of the fifth degree, R.C.
2913.02(A)(1).

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Appellant appeared with his attorney for arraignment on January
23, 2013, at which time he entered pleas of not guilty to all of the
aforesaid counts.
On March 26, 2013, appellant's trial attorney filed a written motion
to withdraw as counsel. The trial court denied said motion via
judgment entry the next day.
Prior to trial, the trial court asked the parties to brief whether
certain portions of appellant's statements, made during his
interview with Detective Hittle, were admissible under Evid. R.
410, concerning whether the statements may have been made in an
effort to obtain a favorable plea. After reviewing the briefs and the
DVD of the police interview and conducting a short hearing before
the commencement of the trial, the court ruled that the statements
should be admitted. See Tr. at 6–17.
The case proceeded to a jury trial on May 30, 2013. After hearing
the evidence and viewing the DVD of appellant's interview with
Detective Hittle, the jury returned a verdict of guilty on all charges
and specifications.
At sentencing, the trial court found the following counts would
merge: Counts One, Two, and Three; Counts Four and Seven;
Counts Five and Six; all firearm specifications; and all repeat
violent offender specifications. The court also found that Counts
One and Two would merge with Counts Four and Seven. The trial
court thereupon sentenced appellant to an aggregate prison term of
sixteen years.
Appellant herein raises the following two Assignments of Error:
“I. THE TRIAL COURT ERRED IN ADMITTING
STATEMENTS MR. POULTON MADE DURING THE
COURSE OF PLEA DISCUSSIONS.
“II. THE TRIAL COURT ERRED IN DENYING COUNSEL'S
MOTION TO WITHDRAW, LEADING TO DENIAL OF MR.
POULTON'S RIGHTS TO COUNSEL OR CHOICE OF
COUNSEL.”
State v. Poulton, No. CT2013-0030, 2014 WL 1341925, at *1-2 (Ohio App. 5th Dist. March 14,
2014). On March 14, 2014, the appellate court affirmed the judgment of the trial court. Id. On

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June 11, 2014, the Ohio Supreme Court declined review. State v. Poulton, 139 Ohio St.3d 1420
(Ohio 2014).
On June 11, 2014, Petitioner filed an application to reopen the appeal pursuant to Ohio
Appellate Rule 26(B). (ECF No. 6-1, PageID# 216.) On August 18, 2014, the appellate court
denied Petitioner’s Rule 26(B) application.

(PageID# 261.)

Petitioner filed a motion for

reconsideration. (PageID# 268.) On October 9, 2014, the appellate court denied the motion for
reconsideration. (PageID# 273.) Petitioner did not file an appeal.
On December 19, 2013, Petitioner filed a petition to vacate or set aside sentence.
(PageID# 274.) Petitioner asserted that he had been denied the effective assistance of counsel
and the right to counsel of his choice. On July 9, 2015, the trial court denied the post conviction
petition. (PageID# 294.) Petitioner filed a timely appeal which apparently remains pending.
On June 8, 2015, Petitioner filed the instant Petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. On August 11, 2015, Petitioner filed an Amended Petition. He asserts that
the trial court improperly admitted the statements he made during plea negotiations (claim one);
that he was denied his right to counsel of choice (claim two); that he was denied the effective
assistance of counsel (claim three); that he was denied the effective assistance of appellate
counsel (claim four); that the evidence is constitutionally insufficient to sustain his conviction on
theft (claim five); that the indictment failed to provide him adequate notice of the charges against
him (claim six); and that the trial court improperly forced Amy Poulton to testify against him
(claim seven). It is the position of the Respondent that Petitioner’s claims are unexhausted,
procedurally defaulted, or otherwise fail to provide a basis for relief.
Petitioner requests a stay of proceedings pending exhaustion of his claims of the denial of
the ineffective assistance of counsel and the right to counsel of choice. He has raised these

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claims in a petition for post conviction relief which remains pending in the Ohio Court of
Appeals. Respondent opposes Petitioner’s request.
Exhaustion
Because Petitioner’s post conviction appeal remains pending in the state courts, plainly,
this action remains unexhausted. Before a federal habeas court may grant relief, a state prisoner
must exhaust his available remedies in the state courts. Castille v. Peoples, 489 U.S. 346, 349
(1989); Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993). If a habeas petitioner has the
right under state law to raise a claim by any available procedure, he has not exhausted that claim.
28 U.S.C. § 2254(b), (c). Moreover, a constitutional claim for relief must be presented to the
state's highest court in order to satisfy the exhaustion requirement. O'Sullivan v. Boerckel, 526
U.S. 838, 844 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). Where
alternative state remedies are available to consider the same claim, however, exhaustion of one
of these remedies is all that is necessary. A habeas petitioner bears the burden of demonstrating
that he has properly and fully exhausted his available state court remedies with respect to the
claims he seeks to present for federal habeas review. Prather v. Rees, 822 F.2d 1418, 1420 n.3
(6th Cir. 1987).
Where, as here, the statute of limitations may bar Petitioner from re-filing his habeas
corpus petition after exhausting state remedies, this Court may stay habeas corpus proceedings
where the Petitioner demonstrates “good cause” for failing to exhaust state remedies, his
unexhausted claim is “potentially meritorious,” and “there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.” Rhines v. Weber, 544 U.S. 269, 277–78
(2005). Here, nothing in the record suggests that Petitioner has engaged in intentionally dilatory
litigation tactics. To the contrary, Petitioner filed the Petition to Vacate or Set Aside Judgment of

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Conviction or Sentence on December 19, 2013, in the state trial court. (ECF No. 6-1, PageID#
274.) He asserted that he was denied the effective assistance of counsel and the right to a fair
trial, because his attorney refused to accept his calls, failed to interview or call defense witnesses,
and failed to prepare a defense when Petitioner became unable to pay his attorneys fees. In a
related claim, Petitioner asserted that he was unconstitutionally denied his right to counsel of
choice, as the trial court denied counsels’ subsequent motion to withdraw.

Petitioner has

submitted, inter alia, affidavits and a copy of an email from his attorney in support of his petition
for post conviction relief. (PageID# 280-85.) In a Judgment Entry dated July 9, 2015, the trial
court denied Petitioner’s post conviction petition. (PageID# 294.) On July 27, 2015, Petitioner
filed a Motion for Findings of Fact and Conclusions of Law. (PageID# 295.)1 Petitioner
thereafter filed a timely appeal. (PageID# 297.) However, on March 7, 2016, the appellate court
dismissed Petitioner’s appeal as premature, because the trial court had failed to make the
statutorily required findings of fact and conclusions of law, finding that the July 9, 2015,
Judgment Entry therefore did not constitute a final appealable order. Opinion (ECF No. 17-1,
PageID# 829.)
Thus, it does not appear to be through any fault of the Petitioner that state post conviction
proceedings remain pending. Petitioner therefore has established good cause for failing to
exhaust his claims. Moreover, this Court is unable to conclude, based on the record currently
before it, that Petitioner’s claims are plainly without merit. See Rhines v. Weber, at 277 (a
district court would abuse its discretion if it were to grant a stay when the unexhausted claims are
plainly meritless).

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 Petitioner also indicates that he filed a petition for writ of procedendo, unsuccessfully seeking
an order compelling the trial court to issue findings of fact and conclusions of law. Petitioner’s
Supplemental Memorandum in Support of Motion for Stay (ECF No. 16, PageID# 818.)   

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Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that Petitioner’s Motion to Stay (ECF
No. 9) be GRANTED; that Respondent’s Motion to Dismiss (ECF No. 6) on grounds of
exhaustion at this time be DENIED; and that Petitioner be DIRECTED advise the Court of the
status of state court proceedings on his petition for post conviction relief every sixty (60) days.
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).

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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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