Wood v. Warden, London Correctional Institution

Filing 9

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, the Court should also deny any requested certificate ofappealability and certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be permitted to proceed in forma pauperis. Objections to R&R due by 9/27/2017. Signed by Magistrate Judge Michael R. Merz on 9/13/2017. (kpf)(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
SHAWN DWAYNE WOOD,
Petitioner,

:

- vs -

Case No. 3:17-cv-215
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

JEFF NOBLE, Warden,
London Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus action pursuant to 28 U.S.C. § 2254. Petitioner Wood seeks
release from a sentence of life imprisonment imposed on him in the Common Pleas Court of
Montgomery County, Ohio, as a result of his convictions for aggravated murder, aggravated
robbery, felonious assault, aggravated burglary, grand theft of a motor vehicle, and having
weapons while under a disability.
Upon initial review, the Court ordered Respondent to file an answer and set a date for
Petitioner to file a reply (ECF No. 3). After the Answer was filed, the Court reminded Petitioner
that his reply was due to be filed by September 5, 2017 (ECF No. 8). As of the date of this
Report, no reply has been filed.

1

Procedural History
On direct appeal, the Ohio Second District Court of Appeals recited the procedural
history of the case up to the time of their decision as follows:
[P2] The incident which forms the basis for the instant appeal
occurred in mid-December of 2011, when the victim, Corey
Turner, was robbed and shot to death in his residence located at
Barrington Apartments, 381 Forest Park Drive in Harrison
Township, Ohio. At the time Turner was killed, he was employed
as an organist and choir director at the Greater Allen African
Methodist Episcopal (AME) Church located in Dayton, Ohio.
Procedural History
[P3] On March 5, 2013, Wood was indicted for one count of
aggravated murder (while committing or attempting to commit
aggravated robbery), in violation of R.C. 2903.01(B), an
unclassified offense; one count of aggravated murder (while
committing or attempting to commit aggravated burglary), in
violation of R.C. 2903.01(B), an unclassified offense; one count of
aggravated robbery (deadly weapon), in violation of R.C.
2911.01(A)(1), a felony of the first degree; one count of
aggravated burglary (deadly weapon), in violation of R.C.
2911.11(A)(2), a felony of the first degree; one count of
aggravated burglary (serious physical harm), in violation of R.C.
2911.11(A)(1), a felony of the first degree; one count of felonious
assault (deadly weapon), in violation of R.C. 2903.11(A)(2), a
felony of the second degree; one count of felonious assault (serious
physical harm), in violation of R.C. 2903.11(A)(1), a felony of the
second degree; and one count of grand theft of a motor vehicle, in
violation of R.C.2913.02(A)(1), a felony of the fourth degree. All
of the preceding counts were accompanied by a three-year firearm
specification. Finally, Wood was indicted for two counts of having
a weapon while under disability (prior drug conviction), in
violation of R.C. 2923.13(A)(3), both felonies of the third degree;
and one count of having a weapon while under disability (prior
offense of violence conviction), in violation of R.C.
2923.13(A)(2), a felony of the third degree. The indictment alleged
that all of the charged offenses were committed by Wood against
Turner between the dates of December 13, 2011, and December
16, 2011.
[P4] At his arraignment on March 7, 2013, Wood stood mute, and
the trial court entered a plea of not guilty on his behalf. On March
2

20, 2013, a trial date was set of July 29, 2013. Wood subsequently
filed a motion to suppress on May 21, 2013, in which he sought the
suppression of his phone records, DNA swabs taken from him by
police, any statements he made to law enforcement officials after
being taken into custody, and any pretrial identifications. A
hearing was held on Wood's suppression motion over the following
dates: June 2, 2013, July 3, 2013, and July 11, 2013. On July 16,
2013, the trial court issued a decision overruling the majority of
Wood's motion to suppress. The sole portion of the suppression
motion sustained by the trial court was the section pertaining to
statements Wood made to police after he requested counsel.
[P5] On July 26, 2013, defense counsel filed a motion requesting a
continuance of the trial date in order to obtain an expert to refute
the State's cellphone evidence. A time waiver was filed on July 29,
2013. Defense counsel signed the time waiver, but Wood refused
to sign the document. Wood's motion for a trial continuance was
nevertheless granted by the trial court in an entry issued on August
1, 2013. A new trial date was scheduled for January 27, 2014.
[P6] Immediately prior to trial on January 27, 2014, Wood waived
his right to a jury trial regarding the three counts of having
weapons while under disability with which he was charged.1
Wood's jury trial began on the same day with respect to the
remaining counts in the indictment. After several days of
testimony, the State rested its case on February 3, 2014. Defense
counsel made a Crim.R. 29 motion for acquittal, which was denied
by the trial court. The defense rested on February 6, 2014, without
presenting any additional evidence. The jury found Wood guilty on
all counts. After merging several counts in the indictment, the trial
court sentenced Wood to life in prison, without the possibility of
parole, plus an additional twenty-three years.
State v. Wood, No. CA 26134, 2016-Ohio-143; 2016 Ohio App. LEXIS 130 (2nd Dist. Jan. 15,
2016). After missing the forty-five day appeal date to the Ohio Supreme Court, Wood sought a
delayed direct appeal which was granted. However, when he failed to file the required memorandum
in support of jurisdiction, the Ohio Supreme Court dismissed the appeal for want of prosecution. A
year later on June 26, 2017, Wood mailed his Petition to this Court.

3

Grounds for Relief

Wood pleads the following grounds for habeas corpus relief:

GROUND ONE: The Appellant’s unwanted court appointed trial
counsel, Jeremiah Denslow, waived Appellant’s Public Speedy
Trial without Appellant’s consent and against Appellant’s wishes
when Appellant was competent when he verbally, knowingly,
voluntarily, and intelligently refused to waive his Speedy Trial
which resulted in a violation of the Appellant’s Personal
Guaranteed United States Constitutional Right to a Public Speedy
Trial.
GROUND TWO: The trial court’s decision to continue the jury
trial from July 29, 2013 until 27, 2014 resulted in a violation of the
Appellant’s United States Constitutional Right to a Public Speedy
Trial.
GROUND THREE: The conviction of all counts were against the
manifest weight of the evidence and there was insufficient
evidence to support the conviction because there was no evidence
that the Appellant Murdered, Robbed, Burgled or Assaulted the
victim Corey Turner, nor, was there sufficient evidence that the
Appellant was ever in possession of a firearm in violation of
2923.113.
GROUND FOUR: The offenses that occurred at 381 Forest Park
Drive should merge into a single sentence.
GROUND FIVE: The trial court abused its discretion when it
sentenced Appellant to Life without the possibility of parole, plus,
twenty-three additional years in prison and ordered that a majority
of the counts be served consecutively.
GROUND SIX: The pretrial Photograph Identification of the
Appellant by Pastor Earl Harris was impermissibly suggestive
and/or unreliable thus should have been suppressed.
GROUND SEVEN: The prosecution prejudiced the Appellant by not
“Presenting or Preserving Materially Exculpatory Evidence” and by
“Withholding Materially Exculpatory Evidence” which resulted in a
violation of Appellant’s United States Constitutional Fifth
Amendment and Fourteenth Amendment Article 1 Section 16 “Due
Process Right.”

4

GROUND EIGHT: Appellate court appointed counsel,
Christopher Deal, was in violation of “Ineffective Assistance of
appellate counsel” because he failed to raise the “Ineffective
Assistance of trial counsel.” The Ineffective Assistance of
appellate and trial counsel resulted in a violation of the United
States Constitution Sixth Amendment Right.
(Petition, ECF No. 1-1.)

Procedural Default

Respondent asserts that all eight of Wood’s Grounds for Relief are barred by his various
procedural defaults in presenting them to the Ohio courts.
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal
claims in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred
unless the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional
rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes,
433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a
federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to
federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation
omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright,
433 U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S.
5

391 (1963). Coleman, 501 U.S. at 724.
"A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d
283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First,
a claim is procedurally defaulted where state-court remedies have been exhausted within the
meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits
because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is
procedurally defaulted where the petitioner failed to exhaust state court remedies, and the
remedies are no longer available at the time the federal petition is filed because of a state
procedural rule. Id.
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and
prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977). Murray v. Carrier, 477 U.S. 478,
485 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160
(6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied, 474 U.S. 831 (1985).
Failure to present an issue to the state supreme court on discretionary review constitutes
procedural default. O’Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)(citations omitted).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a
habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir.
2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d
345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord
Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir.
2001).

First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
6

....
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of
Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60
L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347,
357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002). A habeas
petitioner can overcome a procedural default by showing cause for the default and prejudice
from the asserted error. Atkins v. Holloway, 792 F.3d 654, 657 (6th Cir. 2015).
To the extent Wood raised the claims he now makes on direct appeal to the Second
District Court of Appeals, those claims are procedurally defaulted by his failure to comply with
the rules of the Ohio Supreme Court for presenting a case. All litigants seeking that court’s
review in a criminal case such as this must file a memorandum in support of jurisdiction, which
essentially is an argument to that court about why it should hear the case, since its jurisdiction
over felony appeals is essentially discretionary. In this case Wood had defaulted his right to be
heard by the Ohio Supreme Court by not filing a timely notice of appeal. The Ohio Supreme
Court forgave Wood that default by granting him the right to file a delayed appeal. However,
when he failed to file the required memorandum in support of jurisdiction, they dismissed the
case.
This situation fits all the criteria required by Maupin.
7

Ohio has a procedural rule

requiring all litigants in Wood’s situation to file a memorandum in support of jurisdiction, When
Wood did not do so, the court enforced the rule against him.

The rule in\ question is

promulgated at a published rule of practice in the Ohio Supreme Court. It is independent of
federal law in the sense that it does not require the memorandum for federal claims and excuse it
for state claims.

It is an adequate rule from a federal perspective in that it protects and

regularizes the Ohio Supreme Court’s use of its scarce resources by enabling it to decide whast
cases are appropriate for its time and attention.
A habeas petitioner can excuse a procedural default by showing cause for the default and
resulting prejudice. Wood has offered, however, no response whatsoever to the procedural
default defense.
To the extent Wood has made claims which he never presented to the Ohio courts, he is
also subject to the procedural default defense as there is no Ohio forum in which he could now
be heard on those claims. He has never filed a petition for post-conviction relief under Ohio
Revised Code § 2953.21 and it is now too late to do so, assuming he has any claims which could
not have been presented on direct appeal. He cannot rely on a claim of ineffective assistance of
appellate counsel to excuse his defaults because such a claim must first be presented to the
relevant Ohio Court of Appeals by an application for reopening under Ohio R. App.26(B) and
Wood has never filed such an application. He therefore cannot rely on an ineffective assistance
of appellate counsel claim to show cause and prejudice. Edwards v. Carpenter, 529 U.S. 446
(2000).

8

Conclusion

Because Petitioner procedurally defaulted in presenting his claims to the Ohio courts,
they are barred by the procedural default defense. It is therefore respectfully recommended that
the Petition be DISMISSED WITH PREJUDICE.

Because

reasonable

jurists

would

not

disagree with this conclusion, the Court should also deny any requested certificate of
appealability and certify to the Sixth Circuit that any appeal would be objectively frivolous and
should not be permitted to proceed in forma pauperis.

September 13, 2017.
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 mail. .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 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).

9