Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Krug v. Kelly

United States District Court, Sixth Circuit

May 24, 2013

JON P. KRUG, Petitioner,
v.
BENNIE KELLY, Respondent.

MEMORANDUM OPINION

SARA LIOI, District Judge.

Before the Court is the Report and Recommendation ("R&R") of Magistrate Judge Kathleen B. Burke, recommending dismissal of this petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. No. 18.) Pro se petitioner Jon P. Krug ("petitioner" or "Krug") filed objections. (Doc. No. 19.) Respondent filed neither his own objections nor any response to petitioner's objections. Pursuant to Fed.R.Civ.P. 72(b)(3), the Court has conducted its de novo review of the matters raised in the objections. For the reasons discussed below, the objections are all overruled and the R&R is accepted.

I. BACKGROUND

Following a jury trial where petitioner was represented by counsel, on April 28, 2008, petitioner was convicted in Lake County Court of Common Pleas of four counts of felonious assault with repeat violent offender ("RVO") specifications and one count of carrying a concealed weapon. He was subsequently sentenced to thirty-seven (37) years and six (6) months in prison. (Doc. No. 9-5 at 209, 214.)

Represented by new counsel, petitioner filed a direct appeal.[1] (Doc. No. 9-5 at 218.) On August 3, 2009, the Eleventh District Court of Appeals of Ohio affirmed the convictions and sentences (Doc. No. 9-6 at 334) and, on December 30, 2009, the Ohio Supreme Court declined jurisdiction and dismissed the appeal as not involving any substantial constitutional question ( Id. at 452).[2] On March 3, 2010, the Ohio Supreme Court denied petitioner's motion for reconsideration, wherein he had argued that he was not subject to an RVO specification and had also sought to supplement the record. (Doc. No. 9-6 at 461.)

On January 27, 2009, while his direct appeal was pending, petitioner filed a pro se post-conviction petition to vacate or set aside judgment of conviction or sentence.[3] (Doc. No. 9-6 at 462.) On February 23, 2009, the trial judge dismissed the petition based upon a merits review and upon a finding that the issues could have been raised on direct appeal and were, therefore, barred by res judicata. (Doc. No. 9-7 at 485.) On March 12, 2009, petitioner filed a pro se appeal[4] and, in his brief, included motions to "add additional claims, " which actually sought to supplement the record with additional evidence, and for expert assistance. (Doc. No. 9-7 at 489, 496.) On June 3, 2009, the Eleventh District Court of Appeals denied both of petitioner's motions, concluding that only the trial court had authority to grant them. (Doc. No. 9-7 at 552.) After the State filed its appellate brief, on July 29, 2009, petitioner filed a motion to remand his petition to the trial court, arguing that he had failed to include all his available claims in his postconviction petition because the Ohio public defender had declined to handle his case and had not timely returned all his documents. (Doc. No. 9-7 at 574.) On October 1, 2009, the court of appeals denied the motion to remand. (Doc. No. 9-7 at 581.) On November 27, 2009, the court of appeals affirmed the trial court's dismissal of the post-conviction petition. (Doc. No. 9-7 at 587.) Petitioner did not appeal the affirmance, but, on November 12, 2009, appealed the denial of his motion to remand.[5] (Doc. No. 9-7 at 598.) On February 10, 2010, the Ohio Supreme Court denied petitioner leave to appeal and dismissed the appeal. (Doc. No. 9-7 at 635.)

On December 11, 2009, proceeding pro se, petitioner also filed under Ohio Civ. R. 60(B) for relief from the trial court's February 23, 2009 denial of his post-conviction petition.[6] (Doc. No. 9-8 at 636.) The trial court denied petitioner's motion on January 7, 2010. (Doc. No. 9-8 at 672.) Petitioner did not appeal.

On October 22, 2009, petitioner filed a pro se application to reopen his appeal.[7] (Doc. No. 9-8 at 675.) On December 22, 2009, the Eleventh District Court of Appeals denied the application to reopen. (Doc. No. 9-9 at 783.) Petitioner immediately sought to amend his application to reopen, but that request was denied on March 22, 2010. (Doc. No. 9-9 at 792; 802.) His April 14, 2010 appeal of this denial to the Ohio Supreme Court was dismissed on June 23, 2010 (Doc. No. 9-9 at 861; 883), and a subsequent request for reconsideration was also denied on August 25, 2010 (Doc. No. 9-9 at 884, 893).

In the meantime, on March 8, 2010, petitioner challenged the denial of reopening his appeal by way of a Rule 60(B) motion, arguing that the clerk had not notified him of the December 22nd ruling. (Doc. No. 9-9 at 806.) On April 23, 2010, the court of appeals granted the motion and instructed the clerk to refile the previous ruling so as to restart the clock for purposes of appeal to the Ohio Supreme Court. (Doc. No. 9-9 at 826.) Petitioner then unsuccessfully appealed the denial of reopening to the Ohio Supreme Court, which dismissed his appeal on July 20, 2010. (Doc. No. 9-9 at 829; 860.)

On December 16, 2010, petitioner filed in the trial court a pro se motion for resentencing, asserting that he was improperly designated RVO and that the sentencing entry was inaccurate with respect to the post-release control period. (Doc. No. 9-9 at 894.) The State conceded the latter assertion and moved for resentencing to correct the entry with respect to postrelease control. (Doc. No. 9-9 at 902.) Although the ruling itself is not in this record, petitioner states in his traverse that the trial court denied both motions on May 3, 2011. (Doc. No. 14 at 2460.)

On January 12, 2011, petitioner filed the instant petition for a writ of habeas corpus under 28 U.S.C. § 2254. He raised ten grounds for relief: (Doc. No. 9-8 at 676.)

1. Counsel was ineffective for failing to distinguish defendant's prior record from wrongly being designated a repeat violent offender in violation of the fifth, Sixth and Fourteenth Amendment of the United States Constitution and Section 10, Article I of the Ohio Constitution.
2. Appellant Counsel was ineffective for presenting "previously considered" direct appeal on an incorrect and incomplete record in violation of the Fifth, Sixth and Fourteenth Amendment of the United States Constitution and Section 10, Article I of the Ohio Constitution.
3. Appellant counsel presented a deficient argument by neglecting testimony from the triers of fact that strongly supports the previously considered inferior instructions in violation of the Fifth, Sixth, and Fourteenth Amendment of the United States Constitution and Section 10, Article I of the Ohio Constitution.
4. Appellant Counsel was ineffective for failing to raise ineffective assistance of Trial Counsel that failed to motion for a mistrial when the Trial Court rendering voir dire partial In Violation Of The Fifth, Sixth And Fourteenth Amendment Of The United States Constitution And Section 10, Article I Of The Ohio Constitution.
5. Appellant Counsel was ineffective for failing to raise ineffective assistance of Trial Counsel that failed to obtain the toxicology results In Violation Of The Fifth, Sixth, And Fourteenth Amendment Of The United States Constitution And Section 10, Article I Of The Ohio Constitution.
6. Appellant Counsel was ineffective for failing to raise Ineffective Assistance of Trial Counsel, that failed to contact two alibi eyewitnesses prior to trial and neglected to obtain a statement or proffer their critical testimony at trial in Violation Of The Fifth, Sixth, and Fourteenth Amendment Of The United States Constitution And Section 10, Article I Of The Ohio Constitution.
7. Appellant Counsel was ineffective for failing to raise ineffective assistance of Trial Counsel, that failed to investigate the strength of witnesses because weaker witness was called to testify instead of witness with "powerful support" for defense In Violation Of The Fifth, Sixth, And Fourteenth Amendment Of The United States Constitution And Section 10, Article I Of The Ohio Constitution.
8. Appellant Counsel was ineffective for failing to raise ineffective assistance of Trial Counsel, that neglected to oppose the Trial Court's premeditated intentions to notify the jury that Appellant was in custody and wearing a leg restraint In Violation Of The Fifth, Sixth, and Fourteenth Amendment Of The United States Constitution And Section 10, Article I Of The Ohio Constitution.
9. Appellant Counsel was ineffective for failing to raise ineffective assistance of Trial Counsel, that neglected to explore the amount of prejudice the juror distractions caused In Violation Of The Fifth, Sixth, and Fourteenth Amendment Of The United States Constitution And Section 10, Article I Of The Ohio Constitution.
10. Trial Counsel was ineffective for failed [sic] to ensure a fair and impartial jury trial due to slanderous pretrial publicity In Violation Of The Fifth, Sixth, and Fourteenth Amendment Of The United States Constitution And Section 10, Article I Of The Ohio Constitution.

(Doc. No. 1 at 7-21.)

The Magistrate Judge concluded in her R&R that Ground Ten is procedurally defaulted. She separately reviewed each of the other grounds on the merits. Her conclusions and recommendations are discussed below, along with petitioner's objections.

II. DISCUSSION

A. Standard of Review

Under 28 U.S.C. § 636(b)(1)(C), "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Powell v. United States, 37 F.3d 1499 (Table), 1994 WL 532926, at * 1 (6th Cir. Sept. 30, 1994) ("Any report and recommendation by a magistrate judge that is dispositive of a claim or defense of a party shall be subject to de novo review by the district court in light of specific objections filed by any party."). "An objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an objection' as that term is used in this context." Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004). See also Fed.R.Civ.P. 72(b)(3) ("[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to"); LR 72.3(b) (any objecting party shall file "written objections which shall specifically identify the portions of the proposed findings, recommendations, or report to which objection is made and the basis for such objections."). After review, the district judge "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).

In conducting its de novo review in a habeas context, this Court must be mindful of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No.104-132, 110 Stat. 1214 ("AEDPA"), which provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting Jackson v. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.