Sullivan v. Warden, Warren Correctional Institution

Filing 10

OPINION and ORDER ADOPTING and AFFIRMING the 7 REPORT AND RECOMMENDATION. Signed by Judge Michael H. Watson on 12/21/16. (jk) (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

ANTHONY SULLIVAN,
CASE NO. 2:15-cv-2585

Petitioner,

JUDGE MICHAEL H. WATSON
MAGISTRATE JUDGE KEMP

V.

WARDEN, WARREN
CORRECTIONAL INSTITUTION,

Respondent.
OPINION AND ORDER

On November 22,2016, the Magistrate Judge issued a Report and

Recommendation ("R&R"), EOF No. 7, recommending that the Instant petition for
a writ of habeas corpus be denied and that this action be dismissed. Petitioner
has filed an Objection to the R&R. EOF No. 8. Pursuant to 28 U.S.C. § 636(b),
this Court has conducted a de novo review. For the reasons that follow.

Petitioner's Objection. EOF No. 8, is OVERRULED. The R&R, EOF No. 7, is
ADOPTED and AFFIRMED. The petition for a writ of habeas corpus is DENIED.

This action is hereby DISMISSED.
This case involves Petitioner's convictions after a jury trial in the Franklin

County Court of Common Pleas on two counts of robbery with repeat violent
offender specifications. On September 20,2010, the trial court imposed a
sentence of twenty-six years' incarceration. The Ohio Tenth District Court of

Appeals affirmed the judgment of the trial court. State v. Suiiivan, No. 10AP-997,

2011 WL 6202357 (Ohio App. 10th DIst. Dec. 13, 2011). The Ohio Supreme

Court decllned to accept jurisdiction of the appeal. State v. Sullivan, 131 Ohio

St.3d 1510 (2012). On February 8, 2013, Petitioner filed an application to reopen
the appeal pursuant to Ohio Appellate Rule 26(B); however, the state appellate

court denied the Rule 26(B) application as untimely. Petitioner also
unsuccessfully pursued post-conviction relief.
In this habeas corpus petition. Petitioner asserts that the trial court illegally

imposed mandatory terms of incarceration on the repeat violent offender
specifications (claim one); that he was denied the effective assistance of counsel
based on his attorney's failure to request a jury instruction (claim two); that the

trial court erred in not instructing the jury on the sufficiency of evidence regarding

force (claim three); and that the trial court erred in permitting admission of certain
hearsay evidence (claim four). The Magistrate Judge recommended dismissal of
claims one through three as procedurally defaulted, and claim four as
procedurally defaulted and without merit. Petitioner objects to the Magistrate
Judge's recommendation to dismiss claims one and four.
When a party objects within the allotted time to a report and
recommendation, the Court "shall make a de novo determination of those

portions of the report or specified proposed findings or recommendations to
which objection is made." 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b).
Upon review, the Court "may accept, reject, or modify, in whole or in part, the

findings or recommendations made by the magistrate judge." 28 U.S.C. §

636(b)(1).
Petitioner asserts, as cause for his procedural default in failing to raise
claim one on direct appeal, the denial of the effective assistance of appellate

counsel. As discussed by the Magistrate Judge, the denial of the constitutionally
effective assistance of appellate counsel may constitute cause for a procedural
default, so long as the petitioner has not also procedurally defaulted such claim.

Edwards v. Carpenter, 529 U.S. 446, 453 (2000).
The latter circumstance is present here. The state appellate court explicitly
denied Petitioner's Rule 26(B) application for failure to establish good cause for

filing the application more than one year late. ECF No. 6-1, PagelD# 314-15.
Petitioner argues, however, that Ohio's Rule 26(B) does not constitute an

adequate and independent state ground upon which to foreclose federal habeas

corpus review of his claim under the third part of the test set forth in Maupin v.
Smith, 785 F.2d 135,138 (6th Cir. 1986), because Ohio has not sufficiently

defined or consistently enforced the "good cause" requirement for an untimely

filing under the rule. This argument fails. The United States Court of Appeals for
the Sixth Circuit has repeatedly rejected this argument for the time period at

Issue here. See Monzo v. Edwards, 281 F.3d 568, 577-78 (6th Cir. 2002) (Rule

26(B) constitutes an adequate and independent state procedural ground to
foreclose review of petitioner's claim of ineffective assistance of appellate

counsel during time period at issue here); Scuba v. Brigano, 527 F.3d 479, 488
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(6th Cir. 2007) (same); Parker v. Bagley, 543 F.Sd 859, 862 (6th Cir. 2008)
(same); Wilson v. Hurley, 382 F. App'x 471, 476-77 (6th Cir. 2010).
Petitioner also objects to the Magistrate Judge's recommendation to
dismiss claim four. Petitioner argues that the admission of an excited utterance

under Ohio's evidentiary rules violates the Confrontation Clause, that the State
failed to establish that Abby Sanker was unavailable to testify, that he had no
prior opportunity to cross-examine Sanker and, had she been called as a witness

against him, she may have been unable to Identify him as the bank robber. For
the reasons discussed in the R&R, however, these arguments fail to persuade
the Court. Notably, Petitioner did not present any federal constitutional issue to

the state courts. He thereby has waived his right to present such a claim in these
proceedings. Moreover, Petitioner's claim regarding the alleged violation of state
evidentiary rules fails to provide a basis for relief.
As a general matter, errors of state law, especially the improper admission
of evidence, do not provide grounds for habeas corpus relief. Estelle v. McGuIre,

502 U.S. 62 (1991); Giles v. Schotten, 449 F.3d 698, 704 (6th Cir. 2006). To be
entitled to habeas relief, a petitioner must demonstrate that an evidentiary ruling
violated more than a state rule of evidence or procedure. In order to prevail, a
petitioner must show that the evidentiary ruling was "so egregious that it resulted

In a denial of fundamental fairness." Giles, 449 F.3d at 704 (citing Baze v.
Parker, 371 F.3d 310, 324 (6th Cir. 2004)). Stated differently," '[ejrrors by a
state court In the admission of evidence are not cognizable in habeas
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proceedings unless they so perniciously affect the prosecution of a criminal case
as to deny the defendant the fundamental right to a fair trial.'" Biros v. Bagley,

422 F.3d 379, 391 (6th Cir. 2006) (citing Roe v. Baker, 316 F.3d 557, 567 (6th
Cir. 2002)). A state court evidentiary ruling does not violate due process unless it
"offend[s] some principle of justice so rooted in the traditions and conscience of
our people as to be ranked as fundamental.'" Giles, 449 F.3d at 704 (citing
Coleman v. Mitchell, 268 F.3d 417,439 (6th Cir. 2001)). The record fails to reflect
such circumstances here. Moreover, the record fails to support Petitioner's claim

regarding a violation of the Confrontation Clause. Even if it did, the error would
have been harmless, in view of the substantial evidence of guilt. See State v.
Sullivan, 2011 WL 6202357.

For ail of the foregoing reasons, and for the reasons detailed in the R&R,
Petitioner's Objection, ECF No. 8, is OVERRULED. The R&R. ECF No. 7, is
ADOPTED and AFFIRMED. The petition for a writ of habeas corpus is DENIED.
This action is hereby DISMISSED.
IT IS SO ORDERED.

IICHAEL H. WATSON

United States District Judge