Coleman v. Warden, Warren Correctional Institution

Filing 4

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the C ourt should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 3/13/2015. Signed by Magistrate Judge Michael R Merz on 2/24/2015. (kpf1)(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
WESTERN DIVISION AT DAYTON
OTTO COLEMAN,
Petitioner,

:

- vs -

Case No. 3:15-cv-026
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

WARDEN, Warren Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

Petitioner Otto Coleman brings this habeas corpus action pro se under 28 U.S.C. § 2254
to obtain relief from his conviction in the Montgomery County Common Pleas Court for
aggravated robbery, vandalism, and assault on a peace officer (Petition, Doc. No. 3, PageID 20).
The case is before the Court for initial review pursuant to Rule 4 of the Rules Governing § 2254
Cases which provides in pertinent part: “[i]f it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.”
Coleman pleads the following grounds for relief:
Ground One: The trial court erred in overruling Appellant’s Rule
29 motion as to the aggravated robbery count.
Supporting Facts: No fingerprints of the defendant were ever
found on the gun. The Court nor witness could identify on the
video of the incident where Coleman grabbed the gun. Coleman
was frisked based on his race/racism.

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Ground Two: The trial court erred in overruling Appellant’s Rule
29 motion as to the vandalism count.
Supporting Facts: The broken radio presented to the jury was not
the same broken radio that was worn by the officer during the
incident. Without the actual broken radio, the jury could not make
the proper determination as to whether Mr. Coleman broke the
officer’s radio. This violates due process.
Ground Three: Appellant’s conviction on the aggravated robbery
count was entered against the weight of the evidence.
Supporting Facts: Coleman was illegally detained beyond the
intrusion of a simple traffic stop and citation for the broken
headlight and forced out of vehicle. Coleman was illegally
detained based on his race.
(Petition, Doc. No. 3, PageID 24-28.)

Procedural History

Coleman was indicted by a Montgomery County grand jury in Case No. 2010-CR-3950
on counts of aggravated robbery, vandalism, and assault on a peace officer. He initially pled not
guilty on all three counts, but later changed his plea to no contest on the assault count,
proceeding to jury trial on the aggravated robbery and vandalism counts. Convicted on all three
counts, he was sentenced to the twelve and one-half year sentence he is presently serving.
Represented by new counsel, he appealed to the Second District Court of Appeals which
affirmed the conviction March 7, 2014 (Petition, ¶ 9(d), PageID 21.) Apparently his lawyer
failed to forward a copy of the decision to him until June, 2014, causing him to miss the fortyfive day time limit on appeal to the Supreme Court of Ohio. Instead, he filed the instant Petition

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Factual Background

The Second District Court of Appeals found the facts giving rise to Coleman’s conviction
as follows:
[*P3] The present appeal stems from a traffic stop of Coleman's
vehicle. On December 11, 2010, Dayton police officer Jonathan
Seiter was performing traffic enforcement. He was wearing a
police uniform and driving a marked cruiser. Seiter observed
Coleman driving on Gettysburg Avenue with a headlight out. He
performed a traffic stop based on the violation. After stopping
Coleman's vehicle, Seiter approached on foot and interacted with
him. The officer believed he smelled a slight odor of alcohol on
Coleman's breath. In response to a request for his driver's license,
Coleman opened the glove box. Seiter saw pill bottles inside and
asked whose they were. Coleman denied ownership of the bottles
and added, "What concern of yours is that?" Seiter described
Coleman as "confrontational."
[*P4] At that point, Seiter had Coleman step out of the vehicle.
He intended to perform a weapons pat down before placing
Coleman in the police cruiser for the duration of the stop. Coleman
resisted a pat down, however, and the two men fought. During the
altercation, Coleman obtained physical control over Seiter, pinning
the officer in place and choking him. According to Seiter, Coleman
"was not trying to get away." Seiter testified that he could feel
Coleman tugging at the handgun he kept holstered on his belt.
Seiter emphasized that Coleman did not just "brush up against" the
handgun or "elbow" it. He testified that he actually felt a "tug"
and [**3] that for a "tug" to occur "[a] hand has to actually be on
the grip and pulled." (Trial Tr. at 194-196). When asked again
what he felt, Seiter stated: "[Coleman] tugged upward while his
hand was on my gun." (Id. at 223). He expressed no doubt about
Coleman grabbing his gun and tugging it up. (Id. at 228). While
the fighting continued, Seiter tried to shield his taser and handgun
from Coleman. He also tried to use a radio microphone on his
shoulder to call for help. (Id. at 198-199). The radio unit stopped
working, however, when Coleman pulled out the cord connecting
Seiter's microphone to his radio. (Id. at 199-200).
[*P5] Another officer, James Mullins, testified about hearing a
"garbled transmission," background scuffling, and a plea for help.
(Id. at 158). Shortly thereafter, a civilian named Angela Pierce and
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police officer Christopher Colbert came to Seiter's assistance. (Id.
at 203-204). Colbert noticed that Seiter's microphone cord was
"torn off." (Id. at 237). For her part, Pierce testified that she was a
passenger in a car stopped at a light when she looked over and saw
Coleman and Seiter struggling. According to Pierce, she saw
Coleman trying to grab Seiter's handgun. (Id. at 266). She
witnessed Coleman "tugging" on the handgun more than once. (Id.
at 267, 281).
State v. Coleman, 2014-Ohio-856, 2014 Ohio App. LEXIS 825 (2nd Dist. Mar. 7, 2014). A state
court’s finding of facts in the course of an appeal from a criminal conviction is presumed to be
correct. That presumption can only be overcome by clear and convincing evidence. 28 U.S.C. §
2254(e)(2).

Ground One: Insufficient Evidence of Aggravated Robbery

In his First Ground for Relief, Coleman asserts that there was insufficient evidence to
convict him of aggravated, which is the same issue raised by an Ohio Rim. R. 29 motion for
judgment of acquittal. Coleman raised this claim as his First Assignment of Error on direct
appeal and the Second District decided it as follows:
[*P7] In his first assignment of error, Coleman challenges the

legal sufficiency of the evidence to support his aggravated robbery
conviction under R.C. 2911.01(B), which provides:
(B) No person, without privilege to do so, shall
knowingly remove or attempt to remove a deadly weapon
from the person of a law enforcement officer, or shall
knowingly deprive or attempt to deprive a law
enforcement officer of a deadly weapon, when both of the
following apply:
(1) The law enforcement officer, at the time of removal,
attempted removal, deprivation, or attempted deprivation,
is acting within the course and scope of the officer's
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duties;
(2) The offender knows or has reasonable cause to know
that the law enforcement officer is a law enforcement
officer.
[*P8] With regard to sufficiency of the evidence, Coleman

claims Seiter was not acting "within the course and scope" of his
duties when the alleged handgun tug occurred. According to
Coleman, Seiter lacked a lawful basis to order him out of his
vehicle for a weapons pat down. Based on the premise that Seiter
was violating the Fourth Amendment when he attempted the pat
down, Coleman insists that the officer could not have been acting
within the course and scope of his duties. Indeed, Coleman reasons
that "[a] law enforcement officer cannot be said to be acting within
the course and scope of his official duties when said officer's
actions operate to deprive a citizen of his Fourth Amendment
rights." (Appellant's brief at 7).
[*P9] Upon review, we find Coleman's argument to be without

merit. For present purposes, we will assume, arguendo, that Seiter
lacked authority to conduct a weapons pat down—an issue
Coleman argues at length. Even if the attempted pat down violated
the Fourth Amendment, we are unpersuaded that Seiter's act of
attempting it took him outside the scope of his duties as a police
officer. Seiter's law-enforcement duties undoubtedly include
making traffic stops, removing stopped drivers from their vehicles,
and performing weapons frisks. Even if the frisk here violated the
Fourth Amendment, a conclusion we do not make but assume for
the sake of analysis, Seiter's act of performing it remained within
the course and scope of his duties as a police officer.
[*P10] We disagree with Coleman's assertion that "[a] law

enforcement officer cannot be said to be acting within the course
and scope of his official duties when said officer's actions operate
to deprive a citizen of his Fourth Amendment rights." Police
officers occasionally do deprive citizens of their constitutional
rights while acting in the course and scope of their duties. Federal
law provides a remedy for such a situation in the form of an action
under 42 U.S.C. §1983.[Footnote omitted.] But even if an officer
crosses the line and violates a suspect's constitutional rights, that
does not mean he necessarily ceases to act within the course and
scope of his duties.

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[*P11] Here we harbor no doubt that Seiter was acting within

the course and scope of his duties as a police officer when he made
a traffic stop, ordered Coleman out of the vehicle, and attempted a
weapons pat down. This remains true regardless of the accuracy of
Seiter's belief that he was entitled to conduct the pat down. The
facts of the present case bear no similarity to the hypothetical
situation described in Coleman's brief wherein an on-duty officer
sexually assaults a citizen. Coleman suggests it makes no
difference whether an officer is conducting an illegal frisk or an
illegal sexual assault for purposes of determining whether the
officer is acting in the course and scope of his duties. Coleman
reasons:
* * * [T]o say that our hypothetical officer was acting
outside his official duties when committing the sexual
assault, but that Officer Seiter was not acting outside his
official duties "enough" when illegally detaining a citizen,
would be to create a very murky and completely
unpredictable world where police and citizens must make
blind guesses about where an officer's conduct becomes
"illegal enough." A decision creating such a dynamic
would assist no one.
(Appellant's brief at 13).
[*P12] Coleman's argument fails to persuade us. In no way can
an officer's duties be said to include committing sexual assault. On
the other hand, detaining and frisking suspects comfortably fits
within the course and scope of an officer's duties. We see nothing
"murky" about this distinction. For the reasons set forth above, we
hold that Seiter was acting in the course and scope of his duties
when he removed Coleman from the stopped vehicle and
attempted a weapons frisk. Accordingly, Coleman's first
assignment of error is overruled.

State v. Coleman, supra.
Coleman’s argument in his Petition is different from the one he made on direct appeal.
There he contended there was insufficient evidence to show that Officer Seiter was acting within
the scope of his official duties, which is one of the elements of the offense of aggravated robbery
as charged in this case. Here he argues there was insufficient evidence of the attempt to get the
gun because (1) there were no fingerprints on the gun and (2) the video of the crime does not
show this action.
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Assuming without deciding that Coleman fairly presented to the state courts the same
claim he makes here, the claim is without merit.
[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
.
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). Here there were two
eyewitnesses to Coleman’s grabbing for the gun: Officer Seiter and bystander Angela Pierce.
Their testimony is sufficient to sustain the conviction for aggravated robbery. Coleman’s First
Ground for Relief should therefore be denied.

Ground Two: Insufficient Evidence for the Vandalism Conviction

In his Second Ground for Relief, Coleman argues the State presented legally insufficient
evidence to support his conviction for vandalism. As with the First Ground for Relief, he shifts
his basis for the claim. In the Second District, he asserted the State had not shown the radio was
necessary to the police officer’s occupation or that being a police officer qualified as an
occupation under the relevant statute. Here he argues that the State did not present the “same”
radio as an exhibit that Officer Seiter was wearing at the time of the altercation.
Although Ground Two has the same legal basis as Coleman’s Second Assignment of
Error on direct appeal, it has a completely different factual basis. Thus Coleman’s Second
Ground for Relief was not fairly presented to the state courts.

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To preserve a federal constitutional claim for presentation in habeas corpus, the claim
must be "fairly presented" to the state courts in a way which provides them with an opportunity
to remedy the asserted constitutional violation, including presenting both the legal and factual
basis of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik,
986 F.2d 1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other
grounds by Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792
(6th Cir. 1991).
“Federal courts do not have jurisdiction to consider a claim in a habeas petition that was
not ‘fairly presented’ to the state courts.” Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2004);
accord, Jacobs v. Mohr, 265 F.3d 407, 415 (6th Cir. 2001); McMeans v. Brigano, 228 F.3d 674,
681 (6th Cir. 674, 681 (6th Cir. 2000); Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006);
Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004).
Because Coleman did not present his Second Ground for Relief to the state courts, it is
procedurally defaulted and must be dismissed with prejudice.

Ground Three: Unlawful Traffic Stop

Although Coleman pleads his Third Ground for Relief as another instance of insufficient
evidence to support the aggravated robbery conviction, the gist of his claim is that he was
stopped and detained because of his race. This states a claim under the Fourth Amendment
which is not cognizable in federal habeas corpus.
Federal habeas corpus relief is not available to state prisoners who allege they were

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convicted on illegally seized evidence if they were given a full and fair opportunity to litigate
that question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district
court to determine whether state procedure in the abstract provides full and fair opportunity to
litigate, and Ohio procedure does.

The district court must also decide if a petitioner's

presentation of claim was frustrated because of a failure of the state mechanism. Habeas relief is
allowed if an unanticipated and unforeseeable application of procedural rule prevents state court
consideration of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in
discussing the concept of a “full and fair opportunity,” held:
The mechanism provided by the State of Ohio for resolution of
Fourth Amendment claims is, in the abstract, clearly adequate.
Ohio R. Crim. P. 12 provides an adequate opportunity to raise
Fourth Amendment claims in the context of a pretrial motion to
suppress, as is evident in the petitioner’s use of that procedure.
Further, a criminal defendant, who has unsuccessfully sought to
suppress evidence, may take a direct appeal of that order, as of
right, by filing a notice of appeal. See Ohio R. App. P. 3(A) and
Ohio R. App. P. 5(A). These rules provide an adequate procedural
mechanism for the litigation of Fourth Amendment claims because
the state affords a litigant an opportunity to raise his claims in a
fact-finding hearing and on direct appeal of an unfavorable
decision.

Id. at 526.
The opinion of the Second District Court of Appeals does not disclose whether Coleman
filed a motion to suppress in the trial court. It seems unlikely that there was such a motion
because none of the evidence relied on to convict Coleman was seized from him. Rather, the
stop became the occasion for a fight between Coleman and Officer Seiter and all the evidence
was witness observations about what happened during the fight. In any event, to the extent the
facts presented a possible Fourth Amendment claim, Coleman litigated that claim by asserting
the stop was unconstitutional and he had a full opportunity to litigate that through the court of
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appeals.
Because the Fourth Amendment claim made in the Third Ground for Relief is nto
cognizable in habeas corpus, that Ground should be dismissed with prejudice.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein
be dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and therefore should not be permitted to
proceed in forma pauperis.

February 24, 2015.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
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accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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