The opinion of the court was delivered by: S. Arthur Spiegel United States Senior District Judge
This matter is before the Court on the Magistrate Judge's Report and Recommendation (doc. 15), Petitioner's Objection (doc. 16), Petitioner's Motion to Amend His Objection (doc. 17), Respondent's Response to Petitioner's Objection (doc. 18), Respondent's Response to Petitioner's Motion to Amend Objection (doc. 19), and Petitioner's Response to Respondent's Opposition and Request to Supplement The Records (doc. 20). For the reasons indicated herein, the Court ADOPTS the Magistrate Judge's Report and Recommendation and DENIES Petitioner's Petition for Writ of Habeas Corpus.
On September 16, 1999, the Hamilton County, Ohio Court of Common Pleas sentenced Petitioner to terms of eight years in prison for trafficking of cocaine, five years for possession and preparation of cocaine for sale, and four one-year terms for four counts of having weapons while under disability (doc. 15). All terms of imprisonment were to be served consecutively. With the assistance of counsel, Petitioner filed an appeal to the Ohio Court of Appeals, First Appellate District (Id.). On October 25, 2000, the Court of Appeals affirmed the trial court's decision. On March 7, 2001, the Supreme Court of Ohio denied Petitioner leave to appeal (Id.).
On January 22, 2001, Petitioner filed a pro se application for reopening of his appeal with the Ohio Court of Appeals, and the court subsequently granted his application (Id.). Petitioner claimed that the trial court abused its discretion by convicting him on four counts of having weapons while under disability (Id.). He argued that because all four counts rose out of a single act, he could only be charged with one count of the offense. The state conceded that this was correct, and on March 13, 2002, the Ohio Court of Appeals sustained Petitioner's assignment of error and remanded the case to the trial court for further proceedings (Id.).
On March 25, 2002, the trial court re-sentenced Petitioner according to the remand order (Id.). The court merged the four counts of having a weapon while under disability into one count and gave Petitioner one year of imprisonment for the charge. The court left the other prison terms intact (Id.). Petitioner was not present at this proceeding, nor was he initially made aware of his re-sentencing. (Id.). In August 2002, Petitioner filed a pro se petition for writ of mandamus in the Ohio Court of Appeals asking to have the re-sentencing order vacated. He also requested that he be given the opportunity to be present at a new hearing for re-sentencing so that he may speak on his own behalf (Id.).
In a brief filed by a new attorney, Petitioner asserted three assignments of error, which are detailed in the Magistrate Judge's Report and Recommendation (Id.). The Court of Appeals denied Petitioner's appeal on grounds that Petitioner's rights were not violated by re-sentencing him in absentia, and even if they were violated, it was harmless error (Id.). Again proceeding pro se, Petitioner filed an appeal to the Ohio Supreme Court, which denied his appeal on November 19, 2003 (Id.).
Petitioner filed this instant habeas action pro se in March 2004 (Id.). He alleged three grounds for relief, but later conceded that he had waived his second claim of relief by procedural default in state court (Id.). The two remaining grounds for relief are that the trial court violated Petitioner's right to allocution, which violated his due process rights under the Ohio and U.S. Constitutions, and that he received ineffective assistance of counsel, violating Petitioner's Sixth Amendment rights (Id.). This matter is now ripe for the Court's consideration.
II. The Magistrate Judge's Report and Recommendation
After reviewing Petitioner's grounds for relief, the Magistrate Judge found both grounds to be lacking in merit. As to the first ground for relief, the Magistrate Judge found that Petitioner's procedural default in state court barred his claim. While Petitioner did appeal his re-sentencing in state court on grounds that his absence from the proceedings violated his rights, he only argued that his absence violated state rules of criminal procedure, not that it violated his due process rights (Id.). A state defendant must fairly present any constitutional claims in a state court before instituting a federal habeas corpus action. Anderson v. Harless, 459 U.S. 4, 6 (1982). And if a state defendant can no longer bring his constitutional claims in state court due to procedural default, he has waived his right to bring those claims in a federal habeas corpus action unless he can show cause for the default or that a federal court's failure to consider the claims would result in a "fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The Magistrate Judge further found that in order to meet the fair presentation requirement, the Petitioner must have presented his claims to the state court specifically as a federal constitutional issue. Franklin v. Rose, 811 F.2d 365, 368 (6th Cir. 1987). The Magistrate Judge concluded that Petitioner did not fairly present his federal constitutional claim of due process arising out of his absence from the re-sentencing hearing to the state court, and had therefore waived that claim (doc. 15).
The Magistrate Judge also concluded that even if Petitioner had not waived his right to present this claim in a federal habeas action, Petitioner would not be entitled to habeas relief (Id.). The United States Constitution does not guarantee a right of allocution in sentencing proceedings (Id. citing Pasquarille v. United States, 130 F.3d 1220, 1223 (6th Cir. 1997)).
As to the third ground for relief, the Magistrate Judge found that Petitioner was not denied effective assistance of counsel in violation of the Sixth Amendment (doc. 15). The Magistrate Judge relied on a two-part test to determine whether Petitioner was denied effective counsel. Under the first prong of the test, Petitioner must show that his attorney made such serious errors that the attorney was not functioning as "counsel" as guaranteed by the Sixth Amendment (Id. citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Under the second prong, Petitioner must show that the attorney's poor performance prejudiced Petitioner by undermining the reliability of the sentencing result (Id.).
The Magistrate Judge relied on the second prong of the test to determine that Petitioner was not denied effective counsel (Id.). Any prejudice arising out of the original conviction and sentencing for four separate weapons charges was cured when Petitioner was re-sentenced (doc. 15). The Magistrate Judge also concluded that Petitioner's attorneys had no duty to guarantee his presence at the re-sentencing hearing because the hearing was held for a very limited purpose and Petitioner had ...