The opinion of the court was delivered by: Herman J. Weber, Senior Judge United States District Court
This matter was referred pursuant to 28 U.S.C. § 636 to the United States Magistrate Judge for consideration and report on the Petition for Writ of Habeas Corpus filed by the petitioner pursuant to 28 U.S.C. § 2254. The matter is before the Court upon the Report and Recommendation of the Magistrate Judge (doc. no. 9) recommending that the Petition for Writ of Habeas Corpus be denied with prejudice, and upon petitioner's objections thereto (doc. no. 11).
REPORT AND RECOMMENDATION
Petitioner, an inmate in state custody at the Ross Correctional Institution in Chillicothe, Ohio, 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 and respondent's "Answer/Return Of Writ." (Docs. 1, 6).
On October 28, 1998, petitioner was indicted by the Hamilton County, Ohio, grand jury on one count of felonious assault as defined in Ohio Rev. Code § 2903.11(A)(1) with an attached repeat violent offender specification, and one count of escape as defined in Ohio Rev. Code § 2921.34(A). (Doc. 6, Ex. 1). The incident giving rise to the felonious assault charge and repeat violent offender specification was summarized by the Ohio Court of Appeals on direct appeal as follows:
. . . .Ushery administered a severe beating on his girlfriend, striking her with his fists and ultimately lifting her off the ground and flinging her to the floor headfirst. He inflicted severe, permanent and disfiguring injuries to her face, neck, and spine. At the time of the offense, he was on parole for drug trafficking. He later conceded at trial that, in 1979, he had been convicted of voluntary manslaughter and sent to prison. (Id., Ex. 9, p. 1).
Petitioner waived his right to a jury trial. (Id., Ex. 2). After a trial before the court, petitioner was found guilty as charged. (Id., Exs. 3-4). On April 19, 1999, the trial court dismissed the escape charge and sentenced petitioner to consecutive terms of imprisonment of eight (8) years for the felonious assault offense and ten (10) years on the repeat violent offender specification. (Id., Ex. 5).
With the assistance of counsel, petitioner filed a timely appeal to the Ohio Court of Appeals, First Appellate District. In his brief on appeal, petitioner presented twelve assignments of error, which included the following claims:
Second Assignment of Error: The trial court erred to the prejudice of defendant-appellant when it found that he was a repeat violent offender. Appellant requests appel[l]ate review of his repeat violent offender sentence pursuant to R.C. §2953.08.
Sixth Assignment of Error: Appellant was not given a fair trial due to the inherent bias which arose from the fact that the trial judge presided over appellant's [prior] trial involving a charge of voluntary manslaughter.
Eighth Assignment of Error: Appellant received ineffective assistance of counsel when defense counsel failed to file a motion for a hearing on the repeat violent offender specification due to the fact that the underlying charge was more than ten years old. (Id., Ex. 6).*fn2
On June 7, 2000, the Ohio Court of Appeals issued a Judgment Entry overruling petitioner's assignments of error and affirming the trial court's judgment. (Id., Ex. 9). Petitioner's counsel sought leave to appeal to the Supreme Court of Ohio, asserting as propositions of law three claims of error that had been raised on direct appeal. (See id., Ex. 10). On October 4, 2000, the Supreme Court of Ohio denied petitioner leave to appeal and summarily dismissed the appeal "as not involving any substantial constitutional question." (Id., Ex. 12).
A month later, on December 5, 2000, petitioner filed a pro se application for delayed reopening of his appeal pursuant to Ohio R. App. P. 26(B) with the Ohio Court of Appeals, First Appellate District. (Id., Ex. 13). In the application, petitioner claimed in part that his appellate counsel was ineffective because he did not argue as an assignment of error that petitioner's trial counsel provided ineffective assistance when he "failed to file Motion to Disqualify - recuse judge." (Id., p. 3). As "cause" for his delay in filing, petitioner contended that he lacked the legal training and experience to prepare and file the reopening application in a timely manner; he also claimed that he had "just discovered [the] obvious error of law" which should have been raised by his counsel on appeal. (Id., pp. 2-3).
On July 27, 2001, the Ohio Court of Appeals denied petitioner's reopening application because it was untimely filed and petitioner failed to show good cause for his delay in filing. (Id., Ex. 15). Petitioner appealed this decision to the Supreme Court of Ohio, which dismissed the appeal on October 24, 2001 "as not involving any substantial constitutional question." (Id., Ex. 17).
On September 29, 1999, approximately five months after his conviction and during the pendency of his direct appeal before the Ohio Court of Appeals, petitioner also filed a pro se "petition to vacate and/or set aside judgment of conviction and/or sentence" pursuant to Ohio Rev. Code § 2953.21 with the Hamilton County Common Pleas Court. (Id., Ex. 18). In this post-conviction petition, petitioner claimed his trial counsel provided ineffective assistance because he coerced petitioner into waiving his right to a jury trial. (Id. ). Seven months later, on May 3, 2000, petitioner filed a motion for leave to amend his post-conviction petition to include the additional claim that his trial counsel provided ineffective assistance by failing to "investigate, interview, and subpoena possible witnesses [whose] testimony could have change[d] the outcome of trial." (Id., Ex. 21).
On August 20, 2001, the Common Pleas Court denied petitioner's petition for post-conviction relief, as well as his motion for leave to amend the petition to add a second ineffective assistance of trial counsel claim. (Id., Ex. 24). In so ruling, the court reasoned that petitioner's claim alleged in the original petition that his trial counsel improperly coerced him into waiving his jury trial right was "based on matters in the record," was "not supported by evidentiary documents," and was barred from review "by res judicata" because it "could have been raised on direct appeal." (Id. , pp. 1-2). The court further concluded that petitioner had not demonstrated the affidavits submitted in support of his motion to amend the petition were "unavailable" at the time he filed his original petition seven months 6 earlier, and in any event, had "failed to show . . . his trial counsel violated a substantial duty by failing to interview and subpoena certain witnesses to be present at trial." (Id., p. 2).
With the assistance of counsel, petitioner appealed this decision to the Ohio Court of Appeals, First Appellate District, claiming in part that his trial counsel was ineffective for counseling waiver of his jury trial right and "in failing to interview and call exculpatory witnesses." (Id., Ex. 25). On July 19, 2002, the Ohio Court of Appeals overruled the assignments of error and affirmed the trial court's judgment. (Id., Ex. 27).
Petitioner's counsel next sought leave to appeal to the Supreme Court of Ohio. On December 28, 2002, the Supreme Court of Ohio denied leave to appeal and summarily dismissed the appeal "as not involving any substantial constitutional question." (Id., Ex. 30).
With the assistance of the same attorney who represented him on appeal in the state post-conviction proceedings, petitioner filed the instant petition for writ of habeas corpus on December 30, 2003. In the petition, petitioner alleges the following grounds for relief:
Counsel was ineffective during trial when he (1) "failed to interview and call to the stand two key witnesses who would have refuted the State's allegations;" (2) counseled petitioner "to waive a jury trial in this case, in light of the fact that the court had presided over another trial involving the Petitioner which resulted in a manslaughter conviction;" and (3) failed to file a motion for the recusal of the trial judge, who had presided over his prior voluntary manslaughter trial.
Ground Two: The trial court imposed a sentence in violation of due process by determining petitioner was a repeat violent offender without making "adequate findings" under Ohio's Repeat Violent Offender statute. (See Doc. 1, pp. 6, 8 & "Memorandum In Support Of 28 U.S.C. § 2254 Motion").
In the return of writ, respondent does not argue, nor does the record reflect, that the petition is barred from review on statute of limitations grounds. Moreover, it appears that petitioner has exhausted all available state remedies with respect to his grounds for relief. Therefore, the Court will proceed to address petitioner's claims in light of other arguments asserted as defenses by respondent in the return of writ.
A. Petitioner Has Waived One Of His Ineffective Assistance Of Trial Counsel Claims Alleged In Ground One; However, The Remaining Two Claims Alleged In ...