Hunter v. Warden, Ross Correctional Institution

Filing 8

REPORT AND RECOMMENDATION re 3 Petition for Writ of Habeas Corpus filed by Peter A. Hunter that it is RECOMMENDED that this action be DISMISSED without prejudice as unexhausted unless, within fourteen (14) days, Petitioner complies with the terms outlined in this Report and Recommendation. Objections to R&R due by 5/9/2017. Signed by Magistrate Judge Norah McCann King on 4/24/17. (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
PETER A. HUNTER,
Petitioner,
Case No. 2:16-cv-506
JUDGE MICHAEL H. WATSON
Magistrate Judge King

v.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
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. 3), Respondent’s
Return of Writ (ECF No. 6), and the exhibits of the parties. For the reasons that follow, the
Magistrate Judge RECOMMENDS that this action be DISMISSED without prejudice as
unexhausted unless, within fourteen (14) days, Petitioner notifies the Court that he wishes to
delete his unexhausted claim of constitutional insufficiency of the evidence and proceed on his
remaining, exhausted, claims. Petitioner must understand that his failure to so notify the Court
will result in the dismissal of this action, without prejudice, as unexhausted.
Facts and Procedural History
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of
this case as follows:
This matter relates to events that occurred on March 23, 2013 at
the Travelodge hotel on West Broad Street in Columbus, Ohio,
where Jessica Devore and her long-time boyfriend Danny Lowe,
III, were living with their two children. According to Devore, due
to problems obtaining housing, they began staying at the
Travelodge in the fall of 2012. During their time at the Travelodge,
Devore became aware of other people living there. One person,

known to her as Craig, lived across the parking lot and his children
occasionally played with Devore's children. Craig and Devore
often talked, and approximately one month prior to the events in
question, they had a conversation during which Devore asked
Craig if he knew where she could get some Xanax. Craig told
Devore that he did not, but would let her know if he got any.
On February 22, 2013, Devore received a tax refund of
approximately $4,100. Devore obtained the entire amount in cash,
and it was primarily in $20 denominations that she kept bound
with her daughter's hair ties. According to Devore, she and Lowe
were going to use the money for a deposit on a rental apartment
and they were supposed to move into said apartment on March 26,
2013. Though she testified that she did not tell Craig specifically
about the money, she stated she had previously mentioned to him
that “[a]s soon as I get my taxes, I'm out of here” and that “within
the month” she would be gone. (Tr. 86.)
On March 22, 2013, Devore, Lowe, and the children were at
Lowe's brother's house where they stayed until approximately
midnight. After Devore, Lowe, and their son returned to the
Travelodge, Craig called and told Devore that a couple of his
friends had Xanax that were two dollars a pill. Devore told Craig
she wanted to discuss it with Lowe and for Craig to call her back.
When Craig called the second time, Devore told him that she
would take the Xanax. Craig called Devore a third time and told
her that his friends would be there soon, and then Craig called
again to tell Devore that his friends were about to walk over.
Moments later, Devore walked out of the bathroom and saw Lowe
with the front door open and two males standing there. Through
their conversations, it was said that the pills were three dollars. As
Lowe reached down toward Devore's purse to get the money, the
taller of the two men hit Lowe with a gun and said “[g]ive me all
your money.” (Tr. 93.) According to Devore, Lowe refused and the
taller man started shooting. Lowe fell to the ground and “there was
this blood squirting everywhere.” (Tr. 93.) The taller man then ran
out, but the shorter man remained in her room. Devore's son woke
up screaming, and the shorter man grabbed her son, pointed a gun
at him, and told Devore he would kill her son if she did not give
him her money. Devore testified she was saying “[p]lease don't
shoot my son,” and the man let go of her son. (Tr. 95.) Devore
grabbed her son and “threw him in the bathroom and shut the
door.” (Tr. 95.) Devore testified:

2 

He said, “Give me your money now.” Where Danny is laying, I
had to step over Danny to get my purse because it was sitting
beside of the refrigerator.
When I bent down, I was going to get the money out. I unzipped it.
When I did, he hit me, took the purse and ran. I jumped up, looked
outside, locked the door, called 911.
(Tr. 96.)
Police and medics arrived and Lowe was transported to the
hospital while Devore provided police with her statement of what
happened. Shortly thereafter, appellant was arrested and Devore
identified appellant as the man who pointed the gun at her son.
Devore stated she was “[o]ne hundred percent” sure in her
identification of appellant, and Devore also identified appellant at
trial. (Tr. 101.) Devore testified that, though Lowe survived the
shooting, he is a quadriplegic and, due to complications, still
remained hospitalized at the time of trial.
Columbus Police Officers Shane Sprague and Michael Segna heard
the description that a female caller stated that two black males had
shot her husband and taken her purse. As they were responding to
the scene, the officers observed two black males walking
northbound away from the Travelodge. Upon seeing the officers,
the two men “split off” which caused the officers to stop them. (Tr.
185.) One man, Derrick Wade, had a revolver in his front pocket
with two spent and three live rounds of ammunition. Officers also
discovered that Wade had been shot, and, therefore, Wade was
transported to a hospital.
The other man, appellant, had a “wad of cash” consisting of
several $20 bills tied with yellow hairbands. (Tr. 206.) Appellant
first told officers that there should be about $1,960 and that he had
just come from the casino. Appellant then told officers that he met
a man at McDonalds who gave him $2,000 to buy Percocet and
that, as he was going to make the purchase, he saw two individuals
running away from the hotel. According to appellant, one man ran
toward an Arby's restaurant and the other man ran toward Broad
Street.
Later that morning, appellant was interviewed at Columbus Police
Headquarters by Columbus Police Detective Arthur Hughes.
During the interview, appellant admitted that he went to Devore's
room at the hotel and that a confrontation between a man named
Derrick and “some white guy” occurred. (Tr. 325.) Appellant
3 

explained to Detective Hughes that earlier that evening, a man
known as D, who police later identified as the man Devore knew
as Craig, approached appellant and told appellant there is a man at
the hotel that wants to buy some Xanax. Appellant said that D told
him the guy has “like five, six thousand dollars in cash on him.”
(Tr. 322.) Appellant then talked with Wade who told appellant that
he had some Xanax. After talking with D, appellant and Wade
proceeded to the hotel room. Appellant told Detective Hughes that
Derrick and the other man started wrestling with each other and
then he heard “pop, pop.” (Tr. 325.) Appellant then said that he
“grabbed the money” and put it in his pockets. (Tr. 326.) Also
during this interview, appellant told Detective Hughes that both
Derrick and the white guy had guns and that he ran away from the
scene as shots were being fired. According to appellant's interview,
Wade had a black gun, and Lowe had a “chrome gun.” (Tr. 328.)
Police interviewed Devore again at the hospital to determine how
Wade was shot. Devore testified she did not recall the interview
she gave at the hospital relating to how Wade may have gotten
shot. However, Devore testified that she believed Lowe had his .45
caliber Smith & Wesson on his person when he answered the door
because “[h]e would not have answered the door without a gun on
him.” (Tr. 104.) Evidence was also presented at trial that, during
her interview at the hospital, Devore said she got the gun and gave
it to Lowe and helped him pull the trigger because Lowe was
unable to move. Also, during this interview, Devore asked if she
was going to be charged with attempted murder.
At trial, Devore testified that she did not recall the interview and
that what she told police during that interview was “[n]ot true at
all.” (Tr. 157.) Devore testified, “I don't know if it was because I
was traumatized, not trying to get [Lowe] in trouble. I don't know
why I would say that, but I did say that. That is my voice.” (Tr.
157.) According to her testimony at trial, if Wade was shot, Lowe
must have shot him at some point during the altercation. Devore
also testified that the gun appellant pointed at her and her son was
“chrome, like, silver, kind of like [Lowe's]. It looked like
[Lowe's].” (Tr. 161.) Additionally, Devore stated that she does not
know what happened to Lowe's gun after the events in question
and that the gun appellant used to threaten her and her son “could
have been” Lowe's gun. (Tr. 167.)
On the side of the hotel, police found Devore's purse and her
prescription medication. Both appellant and Wade tested positive
for gunshot residue on their hands. A .45 caliber spent shell casing
was collected from the hotel room, and a spent projectile was
4 

recovered from the bathroom door. No firearms were recovered at
the scene, though the parties stipulated that the firearm recovered
from Wade was a .38 Special revolver that was operable.
Additionally, the parties stipulated that, if called to testify, Mark
Hardy, an expert in firearm examination, would testify that the
spent .38 caliber bullet collected at the scene was fired from the
revolver recovered from Wade. Additionally, Hardy would testify
that the .45 caliber spent bullet was not fired from the revolver.
The parties also stipulated that appellant had a prior robbery
conviction.
On April 1, 2013, appellant was indicted and charged with two
counts of robbery, one count of felonious assault, one count of
attempted murder, one count of kidnapping, and one count of
WUD. Appellant was also charged with a firearm and an RVO
specification. The jury returned guilty verdicts on both of the
aggravated robbery charges and the accompanying firearm
specifications, but was unable to reach a verdict with respect to the
charges for felonious assault, attempted murder, and kidnapping.
Having entered a jury wavier on the WUD charge, the trial court
found appellant guilty of WUD, as well as the RVO specification.
A sentencing hearing was held, and the trial court imposed an
aggregate imprisonment term consisting of 27 and one-half years.
State v. Hunter, No. 14AP-163, 2014 WL 5335355, at *1-4 (Ohio App. 10th Dist. Oct. 21, 2014).
Petitioner timely filed a direct appeal from the judgment of conviction, which the state court of
appeals construed as raising only the claim that “the judgment was not supported by the manifest
weight of the evidence.” Id. at *4. On October 21, 2014, the appellate court affirmed the
judgment of the trial court. Id. Petitioner apparently did not file an appeal from that decision to
the Ohio Supreme Court.
On January 16, 2015, Petitioner filed an application to reopen the appeal pursuant to Ohio
Appellate Rule 26(B). He asserted that he had been denied the effective assistance of appellate
counsel because his attorney failed to raise on appeal a claim that the evidence was
constitutionally insufficient to sustain his convictions; a claim that he had been denied the
effective assistance of trial counsel; and a claim that the trial court had improperly admitted
5 

certain evidence and had improperly sentenced him to consecutive terms of incarceration in
violation of the Double Jeopardy Clause. (ECF No. 6-1, PageID# 209-25, 246-47). On March
17, 2015, the appellate court denied the Rule 26(B) application. (ECF No. 6-1, PageID# 245).
On June 24, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal from that
decision. (ECF No. 6-1, PageID# 272).
Petitioner filed this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on
June 7, 2016.

He alleges that the evidence is constitutionally insufficient to sustain his

convictions (claim one); that he was denied the effective assistance of trial counsel (claim two);
that he was denied a fair trial due to the admission of perjured testimony by prosecution witness
Jessica Devore (claim three); that the trial court improperly imposed consecutive terms of
incarceration in violation of the Double Jeopardy Clause (claim four); and that he was denied the
effective assistance of appellate counsel (claim five). Respondent contends that Petitioner’s
claims are unexhausted, procedurally defaulted, or without merit.
Exhaustion
In claim one, Petitioner alleges that the evidence was constitutionally insufficient to
sustain his convictions. Although the state appellate court addressed the claim only in terms of
the manifest weight of the evidence,1 Petitioner’s appellate brief also addressed the claim in
federal constitutional terms, and expressly referred to Jackson v. Virginia, 443 U.S. 307 (1979),
and its standard for constitutional sufficiency of evidence. See Brief of Defendant-Appellant
(ECF No. 6-1, PageID# 140-50). However, as noted supra, Petitioner apparently never pursued
an appeal of the appellate court’s decision affirming Petitioner’s conviction to the Ohio Supreme

1

 In fairness, Petitioner’s appellate brief posed the following single assignment of error: “The trial court erred when
it entered judgment against the appellant when the judgment was not supported by the manifest weight of the
evidence. . . .” Brief of Defendant-Appellant (ECF No. 6-1, PageID# 143, 148).

6 

Court. He may still file a motion for delayed appeal to the Ohio Supreme Court pursuant to Ohio
S.Ct.Prac.R. 7.01(A)(4). Therefore, this claim remains unexhausted.
Before a federal habeas court may grant relief, a state prisoner must exhaust his available
remedies in the state courts. 28 U.S.C. § 2254(b)(1); 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 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990). In Ohio, this
exhaustion requirement includes the filing of a motion for leave to file a delayed appeal to the
state court of appeals or to the Ohio Supreme Court, if the time for filing a notice of appeal as of
right in a felony case has expired. See Ohio App. R. 5(A); Ohio Sup.Ct. R. 7.01(A)(4). Because
Petitioner did not pursue either a direct or delayed appeal to the Ohio Supreme Court, his claim
of constitutional insufficiency of the evidence remains unexhausted.
Federal courts may not entertain “mixed petitions,” i.e., petitions that present both
exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509 (1982). However, federal
courts have the discretion to stay a mixed petition in order to permit the petitioner to present his
unexhausted claim to the state courts, and then to return to federal court for review of all, now
exhausted, claims.

Rhines v. Weber, 544 U.S. 269 (2005).

However, stays under these

circumstances should be only sparingly granted; stays are not appropriate, for example, when the
unexhausted grounds are plainly meritless. Id. at 278. A petitioner seeking a stay to permit the
exhaustion of an unexhausted claim must demonstrate both good cause for having failed to
exhaust his state court remedies and a potentially meritorious claim. Id. at 277–78.

7 

The record does not indicate that Petitioner can establish good cause for having failed to
pursue a delayed appeal to the Ohio Supreme Court.

Further, a stay of proceedings is

unwarranted in this case because a motion for delayed appeal would have little, if any, likelihood
of success.

See Williams v. Thaler, 602 F.3d 291 (5th Cir. 2010) (When a petitioner is

“procedurally barred from raising [his] claims in state court,” his “unexhausted claims are plainly
meritless.”).
Therefore, this action is subject to dismissal as unexhausted.
Recommended Disposition
The Magistrate Judge therefore RECOMMENDS that this action be DISMISSED
without prejudice as unexhausted, unless Petitioner notifies the Court, within fourteen (14) days,
that he wishes to delete his unexhausted claim of constitutional insufficiency of the evidence and
proceed on his remaining, exhausted, claims. Petitioner must understand that his failure to so
notify the Court will result in the dismissal of this action, without prejudice, as unexhausted.
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).

8 

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
April 24, 2017

9 

10