Fox v. Warden Belmont Correctional Institution

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATIONS [Doc. 18]and [Doc. 21]; OVERRULING Petitioner's Objections [Doc. 20] and [Doc. 22]. This action is DISMISSED. The Clerk is directed to enter Final Judgment in this case. Signed by Judge Algenon L. Marbley on 2/17/2017. (cw)(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
TERRY S. FOX,
Petitioner,
Case No. 2:15-cv-3074
JUDGE ALGENON L. MARBLEY
Magistrate Judge King

v.
MICHELLE MILLER, WARDEN,
Respondent.

OPINION AND ORDER
In this habeas corpus action under 28 U.S.C. § 2254, Petitioner presents four (4) claims
challenging his conviction in the Licking County Court of Common Pleas on charges of gross
sexual imposition and intimidation of a witness. On January 5, 2017, the Magistrate Judge
denied Petitioner’s Motion for Discovery (ECF No. 17), recommended that claims three and four
be dismissed, and directed Respondent to file a copy of the trial transcripts in order to facilitate
the Court’s resolution of claims one and two. Order and Report and Recommendation (ECF No.
18). Respondent thereafter filed a copy of the trial transcripts. Notice (ECF No. 19). On January
24, 2017, the Magistrate Judge issued a second Report and Recommendation, recommending that
claims one and two be dismissed. Report and Recommendation (ECF No. 21). Petitioner objects
to both recommendations. Objection (ECF No. 20); Objection (ECF No. 22). 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. 20); Objection (ECF No. 22) are OVERRULED. The Order
and Report and Recommendation (ECF No. 18) and the Report and Recommendation (ECF No.
21) are ADOPTED and AFFIRMED. Petitioner’s Motion for Discovery (ECF No. 17) is
DENIED. This action is hereby DISMISSED.

In June 2013, Petitioner was convicted, following a jury trial in the Licking County Court
of Common Pleas, on charges of gross sexual imposition and intimidation of a witness in a
criminal case. Petitioner claims that the evidence was constitutionally insufficient to sustain his
convictions (claim one); that he was denied the effective assistance of trial counsel because his
attorney failed to move for a judgment of acquittal, failed to call one “Mike Miller” as a defense
witness, generally failed to protect his rights at trial, and failed to explain the charges against him
(claim two); that he was convicted in violation of the Fourth Amendment (claim three); and that
he was denied a fair trial because of prosecutorial misconduct (claim four). The Magistrate
Judge recommended dismissal of these claims as procedurally defaulted or without merit.
Preliminarily, Petitioner objects to the denial of his Motion for Discovery. Petitioner
complains that his attorney failed to challenge the prosecution’s version of events, as set forth in
the factual findings of the state appellate court, see State v. Fox, No. 13-CA-71, 2014 WL
1520665, at *1-2 (Ohio App. 5th Dist. April 16, 2014), the prosecution’s time line of events, and
the competency of prosecution witnesses. Petitioner complains that police failed to ask him for
his version of events, and that the prosecution failed to question the credibility of its witnesses
against him. Petitioner argues that “a properly conducted discovery needs to take place that is
thorough and unbiased.” Objection (ECF No. 20, PageID# 536). However, as the Magistrate
Judge noted, Petitioner does not specify the nature of the discovery that he seeks. He has also
failed to establish “good cause” for his discovery request within the meaning of Rule 6 of the
Rules Governing Section 2254 Cases in the United States District Courts. Petitioner points to no
specific allegations that would justify further development of the facts or establish that he is
entitled to relief. See Bracy v. Gramley, 520 U.S. 899, 908-09 (1997)(quoting Harris v. Nelson,

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394 U.S. 286, 300 (1969)). Therefore, Petitioner’s objection to the Magistrate Judge’s denial of
his request for discovery is OVERRULED.
The Magistrate Judge recommended that claims one (insufficiency of the evidence) and
two (ineffective assistance of trial counsel) be dismissed on the merits. In his objection to that
recommendation, Petitioner argues that the prosecution edited or fabricated the events at issue.
He maintains that the evidence against him constituted a mere suspicion of the possibility that a
crime had taken place.

He asserts that the verdict was based entirely on speculation and

circumstantial evidence. Objection (ECF No. 22, PageID# 554). Specifically, Petitioner argues
that the evidence at trial failed to establish that he was alone with the alleged victim during the
relevant time period. Referring to portions of the trial transcript, Petitioner notes that Kay Spires
denied that he had instructed her about what to tell police or threatened her should she testify
against him. Petitioner maintains that his attorney failed to properly question the prosecutor’s
version of the events. He complains that his attorney failed to secure an interview of the victim
by an independent expert witness. He argues that the nurse who examined the victim was biased
against him. He complains that his attorney failed to discuss trial strategy with him, and that his
appellate counsel failed to review the trial transcript with Petitioner prior to the filing of the
appeal. Petitioner requests the appointment of counsel to assist him in these proceedings.
Petitioner’s arguments are not persuasive. In order to prevail on his claim of insufficient
evidence, Petitioner must overcome the two levels of deference accorded under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”) to the state appellate court’s resolution of this
claim. See Coleman v. Johnson, 566 U.S. —, —, 132 S.Ct. 2060, 2062 (2012)(per curiam). This
is a difficult hurdle to surmount and, after viewing all the evidence in the light most favorable to
the prosecution, see Jackson v. Virginia, 443 U.S. 307 (1979), this Court is not persuaded that

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Petitioner has done so. Moreover, Petitioner has failed to establish the denial of the effective
assistance of trial counsel under the two-prong test of Strickland v. Washington, 466 U.S. 668
(1984). Nothing in the record supports Petitioner’s allegation that any potential witness could
have provided exculpatory evidence for the defense. Further, Petitioner does not refer to, and
this Court is unable to locate in the record, any instance in which his trial attorney performed in a
constitutionally unreasonable manner to Petitioner’s prejudice.
Petitioner also objects to the recommendation that claim three (conviction in violation of
the Fourth Amendment) and claim four (prosecutorial misconduct) be dismissed as procedurally
defaulted or without merit.

Petitioner alleges that his appellate counsel performed in a

constitutionally ineffective manner by failing to raise a claim of prosecutorial misconduct on
direct appeal, and by filing the appeal without Petitioner’s consent and before Petitioner had
been given an opportunity to review the trial transcripts.1 Petitioner generally complains that he
has been denied due process and was arrested without a warrant on unsubstantiated charges.
However, Petitioner’s Fourth Amendment claim fails to provide a basis for federal
habeas corpus relief. See Stone v. Powell, 428 U.S. 465, 482 (1976); Riley v. Gray, 674 F.2d
522, 526 (6th Cir. 1982). Moreover, Petitioner procedurally defaulted these claims by failing to
raise them on direct appeal. An alleged claim of ineffective assistance of appellate counsel
cannot constitute cause for this procedural default because Petitioner has failed to establish cause
and prejudice for his procedural default of that claim of ineffective assistance of appellate
counsel. See Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). Additionally, Petitioner
points to no new evidence of innocence sufficient to justify a merits review of his otherwise
procedurally defaulted claims. See Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005).

1

Petitioner states that he gained access to his trial transcripts only after the filing of his appeal to the Ohio Supreme
Court.

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For these reasons and for the reasons detailed in the Magistrate Judge’s Order and Report
and Recommendation (ECF No. 18) and Report and Recommendation (ECF No. 21),
Petitioner’s Objection (ECF No. 20); and Objection (ECF No. 22) are OVERRULED. The
Order and Report and Recommendation (ECF No. 18) and Report and Recommendation (ECF
No. 21) are ADOPTED and AFFIRMED. Petitioner’s Motion for Discovery (ECF No. 17) is
DENIED. This action is DISMISSED.
The Clerk is DIRECTED to enter FINAL JUDGMENT.

s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge

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