Frederick v. Warden, Hocking Correctional Facility

Filing 9

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Thomas Frederick in that it is RECOMMENDED that this action be DISMISSED. Objections to R&R due by 2/14/2017. Signed by Magistrate Judge Norah McCann King on 1/31/17. (sem)(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
THOMAS FREDERICK,
Petitioner,
Case No. 2:15-cv-2868
JUDGE GEORGE C. SMITH
Magistrate Judge King

v.
BRIAN COOK, WARDEN,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 1), Respondent’s
Return of Writ (ECF No. 7), and the exhibits of the parties. For the reasons that follow, the
Magistrate Judge RECOMMENDS that this action be DISMISSED.
Facts and Procedural History
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
this case as follows:
Defendant-appellant, Thomas G. Frederick (“appellant”), appeals a judgment
entered by the Franklin County Court of Common Pleas sentencing him to eight
years in prison for aggravated vehicular homicide in violation of R.C. 2903.06, a
felony of the second degree, and six months in prison for operating a vehicle
under the influence of alcohol or drugs (“OVI”) in violation of R.C. 4511.19, a
misdemeanor of the first degree, with the sentences to run consecutively. The
court also ordered the lifetime suspension of appellant's driver's license, without
work-driving privileges, and advised appellant of a three-year mandatory period
of post-release control. We affirm his conviction and sentence.
Appellant pled guilty to the two offenses of which he was convicted. During the
plea colloquy, the trial court advised appellant that the maximum possible
sentence for the first of those counts—aggravated vehicular homicide—was eight
years. He advised appellant that the maximum sentence for the second count—
OVI—was six months.

Following appellant's plea of guilty, the state recited the following facts
concerning the charges.
During the early morning hours of September 29, 2012, the victim, William
Houck, a 60–year–old tow-truck driver, was connecting a broken-down car to the
back of his tow truck. The disabled vehicle was on the right berm of I–71
northbound, north of Cooke Road.
Appellant was driving his vehicle north on I–71 when he struck the back of the
disabled vehicle. Houck, who was out of his tow truck at the time, was propelled
many feet down the road. He suffered fatal blunt-force injuries and was
pronounced dead at 4:18 a.m.
Officers responded to the scene in time to see appellant stopped in the center lane
of the highway. They then observed appellant drive his vehicle at low speed
southbound in the left berm of the northbound lanes. Appellant had previously
retrieved his front bumper, which had completely broken off the front of his car,
and placed it in his backseat.
Appellant stopped his vehicle and put it in park. Officers approached the vehicle
after hearing accelerator or engine-revving sounds. Officers opened the driver's
side door and immediately noticed a strong odor of alcohol. Appellant
acknowledged that he had been drinking and that he had too much to drink. He
stated that “this is my fault” and that he was sorry. (Tr. 8.) Officers observed that
he was unsteady on his feet. He was taken to the hospital where a blood test
revealed an alcohol content of .242, well in excess of the legal limit.
Appellant told the patrol officers that he had consumed 12 beers between the
hours of 5 p.m. and 2:30 a.m. He also reported that he had been to two bars and a
house party and had smoked some marijuana. He informed police that his doctor
had prescribed a blood thinner medication, which interacts unfavorably with
alcohol, and that he had been advised to cut back on his drinking. During his
police interview, appellant also stated “I'm dead wrong, I killed someone.” (Tr. 9–
10.)
The court ordered a pre-sentence investigation at the conclusion of the guilty plea
hearing. At the June 28, 2013 sentencing hearing, the court heard statements from
members of the victim's family and friends and from appellant. The court orally
advised appellant of the sentence without additional comment.
Appellant did not object to the sentence at the sentencing hearing. Later that day,
the court filed the judgment entry of conviction and sentencing.
In its entry, the court sentenced appellant to eight years in prison on Count One,
the aggravated vehicular homicide count, and six months on Count Five, the OVI
count, to run consecutively. The court stated as follows:
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The Court has considered the purposes and principles of
sentencing set forth in R.C. 2929.11 and the factors set forth in
R.C. 2929.12. In addition, the Court has weighed the factors set
forth in the applicable provisions of R.C. 2929.13 and R.C.
2929.14. The Court further finds that a prison term is mandatory
on Count One pursuant to R.C. 2929.13(F).
***
After imposing sentence, the Court gave its findings and stated its
reasons for the sentence as required by R.C. 2929.19(B)(2)(a)(b)
and (c)(d) and (e).
(Emphasis sic.) June 28, 2013 Entry.
Appellant has appealed his sentence and asserts the following sole assignment of
error:
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
IMPROPERLY SENTENCING HIM TO THE MAXIMUM PRISON TERM IN
CONTRAVENTION OF OHIO'S SENTENCING STATUTES.
State v. Frederick, No. 13AP-630, 2014 WL 1878023, at *1-2 (Ohio App. 10th Dist. May 8,
2014). On May 8, 2014, the appellate court affirmed the judgment of the trial court. Id. On
October 8, 2014, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v.
Frederick, 140 Ohio St.3d 1452 (Ohio 2014). On August 6, 2014, Petitioner filed an application
to reopen the appeal pursuant to Ohio Appellate Rule 26(B). (ECF No. 6, PageID# 120.) On
September 25, 2014, the appellate court denied the Rule 26(B) application. (PageID# 174.)
Petitioner apparently did not file an appeal to the Ohio Supreme Court from that decision.
Petitioner filed the Petition on September 28, 2015. He alleges that the trial court
improperly imposed maximum sentences in violation of Ohio law (claim one); and that he was
denied his right to due process because the trial court failed to consider mitigating circumstances
presented at sentencing, resulting in fundamentally unfair sentencing proceedings (claim two).

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Respondent contends that claim one fails to present a cognizable claim for federal habeas relief
and that claim two is procedurally defaulted.
Claim One
In claim one, Petitioner alleges that the state trial court violated Ohio law in imposing
maximum terms of incarceration. This claim does not warrant federal habeas relief. A federal
court may review a state prisoner's habeas petition only on the ground that the challenged
confinement is in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. §
2254(a). A federal court may not issue a writ of habeas corpus “on the basis of a perceived error
of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6th
Cir. 1988). A federal habeas court does not function as an additional state appellate court
reviewing state courts' decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614
(6th Cir. 1988). “‘[F]ederal courts must defer to a state court's interpretation of its own rules of
evidence and procedure’” in considering a habeas petition. Id. (quoting Machin v. Wainwright,
758 F.2d 1431, 1433 (11th Cir. 1985)). It is only where the error resulted in the denial of
fundamental fairness that habeas relief will be granted. Cooper v. Sowders, 837 F.2d 284, 286
(6th Cir. 1988). Such are not the circumstances here. In short, claim one is without merit.
Claim Two
In claim two, Petitioner alelges that he was denied due process because the trial court
failed to consider mitigation evidence at sentencing. However, Petitioner did not assert this
federal claim in his direct appeal, where he argued oinly that the state trial court violated Ohio
law.
In order to satisfy the exhaustion requirement in habeas corpus, a petitioner must fairly
present the substance of each federal constitutional claim to the state courts as a federal

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constitutional claim. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S.
270, 275 (1971). Although this fair presentment requirement is a rule of comity, not of
jurisdiction, see Castille v. Peoples, 489 U.S. 346, 349 (1989); O'Sullivan v. Boerckel, 526 U.S.
838, 844–45 (1999), it is nevertheless rooted in principles of federalism designed to allow state
courts the opportunity to correct the State's alleged violation of a federal constitutional right that
threatens to invalidate a state criminal judgment. In the Sixth Circuit, a petitioner can satisfy the
fair presentment requirement in any one of four ways: (1) by reliance upon federal cases
employing constitutional analysis; (2) by reliance upon state cases employing federal
constitutional analysis; (3) by phrasing the claim in terms of constitutional law or in terms
sufficiently particular to allege a denial of a specific constitutional right; or (4) by alleging facts
well within the mainstream of constitutional law. McMeans v. Brigano, 228 F.3d 674, 681 (6th
Cir. 2000). General allegations of the denial of a constitutional right, such as the right to a fair
trial or to due process, are insufficient to satisfy this “fair presentment” requirement. Id.
Here, Petitioner did not raise before the state courts an issue regarding the violation of
due process, nor did he refer to the federal Constitution or to any federal cases employing federal
constitutional analysis in support of his claim. Instead, he raised his claim only in terms of the
alleged violation of state law. See Brief of Appellant (ECF No. 6, PageID# 45-55.) The state
appellate court addressed that claim only in terms of the alleged violation of state law. See State
v. Frederick, 2014 WL 1878023. Further, Petitioner has failed to establish cause for his failure
to present this federal claim to the state courts.
“‘[C]ause’ under the cause and prejudice test must be something
external to the petitioner, something that cannot fairly be attributed
to him[;] . . . some objective factor external to the defense [that]
impeded . . . efforts to comply with the State's procedural rule.”
Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115
L.Ed.2d 640 (1991).
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Maples v. Stegall, 340 F.3d 433, 438 (6th Cir. 2003). The constitutionally ineffective assistance
of counsel can constitute cause for a procedural default, so long as that claim has been presented
to the state courts and is not, itself, procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446,
451-52 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488–89 (1986)). Here, Petitioner has
procedurally defaulted his claim of the denial of the effective assistance of counsel by failing to
file a timely appeal from the denial of his Rule 26(B) proceedings with the Ohio Supreme Court.
He may now no longer do so, because Ohio does not permit delayed appeals in Rule 26(B)
proceedings. S.Ct.Prac.R. 7.01(A)(4)(c). Therefore, Petitioner has waived his claim that he was
denied the effective assistance of appellate counsel based on his attorney's failure to timely
inform him of the appellate court's decision denying his appeal. Further, Petitioner has failed to
establish cause and prejudice for this procedural default. Therefore, the denial of the effective
assistance of counsel therefore cannot constitute cause for Petitioner’s waiver of claim two. In
short, claim two has been procedurally defaulted.
Recommended Disposition
Therefore, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
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
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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/ Norah McCann King
Norah McCann King
United States Magistrate Judge
January 31, 2017

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