WILLIAM B. O'NEAL, Petitioner,
BENNIE KELLY, Warden, Respondent.
REPORT AND RECOMMENDATION
NANCY A. VECCHIARELLI, Magistrate Judge.
This matter is before the magistrate judge pursuant to Local Rule 72.2. Petitioner, William B. O'Neal ("O'Neal"), challenges the constitutionality of his conviction in the case of State v. O'Neal, Case No. 04-CR-0547 (Medina County 2008). O'Neal filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254") on October 16, 2012 in the United States District Court for the Northern District of Ohio. For the reasons given below, O'Neal's petition should be denied and dismissed with prejudice.
The state appellate court hearing O'Neal's second direct appeal found the following facts to be relevant to his case. On October 13, 2004, O'Neal entered Christie's Cabaret in Brunswick, Ohio and held an employee, Tina Harrell ("Harrell"), at gunpoint. Subsequently, O'Neal exchanged fire with police and shot Harrell in the abdomen. The police shot O'Neal twice. Both O'Neal and Harrell survived their wounds.
The state indicted O'Neal on two counts of attempted murder, three counts of kidnaping, one count of felonious assault, one count of carrying a concealed weapon, one count of illegal possession of a firearm in a liquor permit premises, and eight firearm specifications. O'Neal initially pleaded not guilty to these charges.
On May 17, 2005, O'Neal pleaded guilty to three counts of kidnaping, each with a firearm specification; two counts of felonious assault, each with a firearm specification; one count of carrying a concealed weapon; and one court of illegal possession of a firearm in a liquor permit premises, with a firearm specification. The trial court sentenced O'Neal on July 19, 2005. The court merged the two counts of kidnaping and merged the two counts of felonious assault. The court then sentenced O'Neal to three years for kidnaping, ten years for felonious assault, three years for the firearm specification attached to the count of felonious assault, one year for carrying a concealed weapon, and one year for illegal possession of a firearm in a liquor premises. The trial court ordered the sentences for kidnaping, felonious assault, and the firearm specification to run consecutively to one another. The court also ordered the remaining sentences to run concurrently with one another and concurrently with the consecutive sentences. Thus, the court sentenced O'Neal to a total term of incarceration of 13 years.
A. Direct appeal
O'Neal timely appealed his sentence. He raised a single assignment of error on appeal:
The trial court's imposition of consecutive prison terms on appellant totaling thirteen years, based on facts other than a prior conviction, violated the federal constitutional requirements set forth in Apprendi v. New Jersey and Blakely v. Washington.
On April 19, 2006, the state appellate court sustained O'Neal's assignment of error and remanded the case to the trial court for re-sentencing in accordance with State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006).
The trial court held a sentencing hearing, and it entered a judgment re-sentencing O'Neal on May 8, 2006. The judgment entry imposed the same sentence that had been imposed when the trial court first sentenced O'Neal. During the sentencing hearing, O'Neal moved twice to be allowed to withdraw his guilty plea, and the court denied these motions. In addition, as the state appellate court found, the trial court mis-spoke when describing O'Neal's sentence at the conclusion of the hearing. The court properly stated that the 7-year term of imprisonment for felonious assault and the 3-year term for the firearm specification were to be served consecutively and that the total term of imprisonment was thirteen years. But the court erred in stating that the 3-year term for kidnaping would be served concurrently with the other two sentences. The judgment entry indicates the 3-year sentence for kidnaping would be served consecutively to the other two sentences.
O'Neal appealed his re-sentencing, asserting the following four assignments of error:
First Assignment of Error
In re-sentencing the Defendant to the sentence originally imposed the Court violated the Defendant's Due Process rights by retroactively applying the Foster decision in the instant case.
Second Assignment of Error
The Court erred when on two separate occasions it denied [Defendant's] motion to withdraw his plea.
Third Assignment of Error
The Court erred when it denied, on two separate occasions [Defendant's] Motions of Recusal.
Fourth Assignment of Error
The Court erred when it relied upon the incomplete, inaccurate and erroneous information in the PSI report as part of its consideration in imposing its sentence.
The state appellate court found that because the trial court had failed to include a finding of O'Neal's guilt in the judgment entry, the trial court had failed to issue a final, appealable order. Absent such an order, the appellate court lacked jurisdiction to hear O'Neal's appeal. Consequently, the appellate court dismissed the appeal for lack of subject matter jurisdiction and urged the trial court to issue a proper judgment entry.
After the appellate court's dismissal, the trial court entered a proper judgment entry nunc pro tunc, again imposing the sentence it had imposed in its previous judgment entry. O'Neal timely appealed the nunc pro tunc judgment entry, raising the same assignments of error previously raised in his appellate brief. On March 24, 2008, the state appellate court overruled O'Neal's assignments of error and affirmed the judgment of the trial court. In its decision, the appellate court held, inter alia, that when a case is remanded for re-sentencing, the trial court lacks jurisdiction to do anything other than re-sentence the defendant.
O'Neal filed two memoranda in support of jurisdiction in the Ohio Supreme Court, one appealing the state appellate court's dismissal for lack of jurisdiction and the other appealing the appellate court's affirmation of the trial court's nunc pro tunc sentence. O'Neal raised three propositions of law in his appeal of the state court's affirmation of the trial court's nunc pro tunc sentence:
Proposition of Law #1: On remand for resentencing, under the Foster decision, the imposition of the original sentence of more than the "statutory maximum, as the minimum in the statutory range for a first time offender and consecutive terms is [sic] an unreasonable application of Federal law that violates the Ex Post Facto Clause and due process.
Proposition of Law #2: A sentence founded, at least in part, upon false information of criminal records which are materially untrue is a sentence contrary to law and in violation of due process rights.
Proposition of Law #3: A sentence founded, at least in part, upon mandatory statutory considerations and factors is a sentence consistent with the information provided to the court... [and] used in the consideration and weighing of the factors, if false, ... would be contrary to law and a violation of due process Rights.
(Capitalization, punctuation, and emphasis altered from the original.) The Ohio Supreme Court declined jurisdiction over O'Neal's appeals on September 10, 2008.
B. Application to reopen direct appeal
On June 11, 2008, O'Neal filed an application to reopen his direct appeal pursuant to Ohio App. R. 26(B). O'Neal asserted that appellate counsel erred by failing to raise the following claims on appeal:
Proposed Assignment of Error No. 1:
The trial court erred and violated appellant's right to due process of law by journalizing an entry that stated the 7 year term for felonious assault and the 3 year term for kidnapping were to be served consecutively, which added three years to the appellant's sentence, when the trial court pronounced in open court the terms were to be served concurrently.
Proposed Assignment of Error No. 2:
The trial court erred when it imposed the 3 and 7 year terms for the kidnapping and felonious assault charges, to run consecutively when defendant-appellant was not present, as required by the mandates of Crim.R. 43(A), in violation of defendant-appellant's due process rights.
(Capitalization altered from the original.) On August 6, 2008, the state appellate court found that O'Neal had failed to assert error by appellate counsel and had, instead, solely asserted error by trial counsel. As alleged error by trial counsel was not a cognizable reason to reopen a direct appeal, the state appellate court denied O'Neal's application. O'Neal moved for reconsideration, pointing out that the text of his application had framed the captioned errors of trial counsel as claims that appellate counsel was ineffective for failing to raise on appeal. In denying O'Neal's motion, the state appellate asserted that "[O'Neal's] application for reopening was not considered on the merits... because [O'Neal] assigned error to the trial court in his captioned assignments of error." Journal Entry, September 8, 2008, Answer, Exh. 37, p. 1 (emphasis added). The appellate court did not cite any procedural rule requiring that the assignments of error in an application for reopening be captioned as errors of appellate counsel.
O'Neal timely filed a notice of appeal of the state appellate court's decision to the Ohio Supreme Court. In his memorandum in support of jurisdiction, O'Neal asserted three propositions of law:
Proposition of Law No. 1: The appellate court erred and abused its discretion in denying appellant's application under App.R. 26(B) and determining application was procedurally deficient for not stating the basis of the claim, in violation of due process.
Proposition of Law No. 2: The appellate court erred and abused its discretion in not taking notice of "obvious" deviations from legal rules that caused a defect in the sentencing proceeding (i.e. plain error), which are apparent, as set forth in the application, and the basis for counsel's ineffectiveness, which has resulted in Appellant's constitutional right to due process and a speedy trial being violated.
Proposition of Law No. 3: Appellate court erred and abused its discretion in denying the application to reopen under Crim.R. 26(B) [sic], in its failure to review application on its merits, which set forth a genuine issue of ineffective assistance of counsel on appeal, in violation of due process, speedy trial and equal protection of law.
(Capitalization altered from the original.) On December 3, 2008, the Ohio Supreme Court dismissed O'Neal's appeal as not involving any substantial constitutional question.
C. Motions for postconviction relief and to withdraw guilty plea
On March 7, 2006, O'Neal petitioned the trial court for postconviction relief pursuant to Ohio Rev. Code § 2953.21. In his petition, O'Neal asserted seven grounds for relief:
Claim Number One
Violations of 5th and 14th U.S. Constitutional Amendments and Atticle [sic] I § 2 and 16, by prosecutorial misconduct. (Art. I, Ohio Const.)
Prosecutor failed to turn over exculpatory evidence and statements in discovery.
Claim Number Two
Prosecutorial misconduct in violation of 5th and 14th U.S. Const. Amends. and Article I, § 2 and 16, Ohio Const.
Prosecutor knowingly failed to correct inaccurate information provided to court contrary to ABA professional standards, 3-62a; 3-62b, when contradictory evidence was in his possession.
Claim Number Three
Misconduct in violation of 5th and 14th U.S. Const. Amends. and Article I, § 2 and 16, Ohio Const.
County probation department submitted false information to court when contradicting [sic] information was in their possession.
Claim Number Four
Ineffective counsel in violation of U.S. Const. Amend. 5th, 6th and 14th and Article I, § 2, 10 and 16, Ohio Const.
Counsel failed to investigate evidence and witnesses provided by defendant.
Claim Number Five
Ineffective assistance of counsel, same as above.
Defense counsel failed to discover incident reports, witness and police statements taken day of incidnet [sic] and failed to discover sheriff report and results of their police shooting investigation.
Claim Number Six
Ineffective assistance of counsel, same as above.
Counsel failed to demand discovery of victim's clothing and GSR of same.
Claim Number Seven
Prosecutorial misconduct in violation of the 5th and 14th U.S. Const. Amends., Article I, § 2 and 16 of Ohio Const.
Prosecutor, contrary to ABA Professional Standards, charged defendant with attempted murder when he didn't believe he could convict the defendant of these charges, in an attempt to secure a conviction or guilty plea.
(Punctuation altered from the original.) On June 7, 2007, the trial court found that O'Neal could raise the seven asserted claims in his then-pending direct appeal. The court concluded that as postconviction relief is available only where there is no adequate trial or appellate remedy, O'Neal was not entitled to postconviction relief or a hearing on his grounds for relief. O'Neal did not appeal this decision.
On June 14, 2006, O'Neal again moved to withdraw his guilty plea. The trial court did not rule on that motion.
On October 31, 2007, O'Neal again filed in the trial court a petition for postconviction relief. O'Neal asserted three grounds for relief:
Claim Number One
Defendant-petitioner's constitutionally guaranteed right to due process, under Article I, §1 & §16 of the Ohio Constitution and the Fifth and Fourteenth Amendments to the United States Constitution, has been violated by the Medina County Prosecutor, by and through the non-compliance with a lawful discovery request for exculpatory, mitigating and impeachment evidence, which is favorable to the defendant-petitioner and material to guilt and/or punishment (Brady material), in Case No. 04CR0547 and by and through the continued noncompliance, with the request, contrary to the Ohio Crim.R. 16(D) and Fed.Crim.R. 16(c).
Claim Number Two
Defendant-petitioner's constitutionally guaranteed right to the assistance of counsel, under Article I, §1 & §10 of the Ohio Constitution and the Sixth Amendment to the United States Constitution, has been violated by the Medina County Prosecutor, by and through the non-compliance and misrepresentation in response to a lawful discovery request for exculpatory, mitigating and impeachment evidence which is favorable to the defendant-petitioner (Brady material) and the misleading response that such material did not exist in Case No. 04CR0547, resulting in the deception of the court and the defense.
Claim Number Three
Defendant-petitioner's constitutionality guaranteed rights of due process and equal protection of the law, under Article I, §1, §2 & §16 of the Ohio Constitution and the Fifth and Fourteenth Amendment [sic] to the United States Constitution, has [sic] been violated by and through the misconduct of the Medina County Prosecutor, by and through the failure to correct false evidence and allowing the presentation of the false evidence to the court, resulting in the deception of the court.
(Punctuation and capitalization altered from the original.) On March 25, 2008, the trial court found that the petition was untimely and that O'Neal had failed to show cause to excuse his ...