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Goldick v. Warden, Ross Correctional Institution

United States District Court, Sixth Circuit

May 30, 2013

JOSEPH A. GOLDICK, Petitioner,
v.
WARDEN, ROSS CORRECTIONAL INSTITUTION, [1] Respondent.

REPORT AND RECOMMENDATIONS [2]

SHARON L. OVINGTON, Chief Magistrate Judge.

I. Introduction

Petitioner Joseph A. Goldick is serving a ten-year prison sentence due to his aggravated-burglary and felonious-assault convictions in state court. He brings this case pro se seeking a writ of habeas corpus under 28 U.S.C. §2254. He seeks habeas relief that either effects his release from incarceration or remands his case to state court for resentencing.

The case is before the Court upon Goldick's Habeas Petition (Doc. #1), Respondent's Answer/Return of Writ (Doc. #3), Goldick's Reply (Doc. #6), and the record as a whole.

II. Procedural and Factual Background

A. Trial and Direct Appeal

Gerald Skapik was at home in his apartment during the early-morning hours of July 8, 2007 when an intruder burst through his door and attacked him. A jury later concluded that Petitioner Goldick was the intruder/attacker, not crediting his alibi defense. The Ohio Court of Appeals described the prosecution's trial evidence as follows:

Skapik testified that he had been acquainted with Goldick and his family for many years and that he also knew Goldick's former wife and current girlfriend, Penny Griffin Goldick ("Griffin"). Skapik stated that he had asked Griffin out on dates in the past, but not in recent years. Skapik, Goldick, Griffin, and two other acquaintances, Bo and Cynthia Webb, had been at a picnic together on Saturday, July 7, 2007. Goldick, Griffin, and the Webbs had also stopped by Skapik's apartment for a brief and uneventful visit that evening.
According to Skapik, he awoke in the early morning hours of July 8 to the sound of pounding on his door. Through the peephole, he could see that Goldick was kicking his apartment door. Goldick eventually broke down the door. After entering the apartment, Goldick knocked Skapik over a coffee table, grabbed his head, and beat him for approximately five minutes while asking questions about Griffin. Skapik testified that Goldick held him by his hair, and hit and kicked him about the head, stomped on his knee and hand, walked through the apartment calling for Griffin, and then left.
After Goldick left the apartment, Skapik called the police. When they responded to his apartment, Skapik refused medical treatment because he did not want to pay for it, preferring to go to the Veterans' Administration the next day. Skapik did not remember talking to the police officer about allowing evidence technicians into his apartment, but the responding officer, Jeffrey Thomas, testified that Skapik did not want the technicians called because he did not want the inconvenience of waiting for them in the middle of the night.
Although Skapik was the only witness to Goldick's involvement in the crime, Officer Thomas testified that he observed evidence of a disturbance in the apartment, including blood on the floor, a severely damaged door with a deadbolt missing, and Skapik's "very prevalent" injuries.
On the morning of Sunday, July 8, 2007, Cynthia Webb awoke to find Goldick asleep outside her house. She testified that, when she went to get her newspaper, she could not open the door of her house because Goldick was asleep just outside the door. According to Cynthia, Goldick wore no shoes or shirt at the time, and he stated "I think I f____ked up last night, " claiming that he had "smacked" Skapik. Bo Webb likewise reported that, when he saw Goldick in his kitchen that morning (after Cynthia had let him in), Goldick stated that he had screwed up and "smacked" Skapik during the night. Bo told Goldick that he should apologize to Skapik.
A short time later, Bo went with Goldick to Skapik's apartment. Skapik's sister, Lynn Rae Skapik Smith, also went to the apartment that morning. Bo Webb and Smith testified that Skapik's face was badly bruised and swollen. They also stated that Goldick apologized to Skapik at that time.
Smith took her brother to the Veterans Administration on Monday, July 9, because he had not felt up to going on Sunday. When Skapik sought medical attention, he learned that his nose was broken and both cheekbones were shattered. He also had a concussion and two broken ribs. Skapik further testified that his dentures had been broken into eight pieces, causing significant lacerations in his mouth. He could barely walk for a week, took pain medicine for two weeks, and could not eat solid food for two weeks until his dentures were replaced and his mouth healed. Smith testified that her brother had black eyes for weeks and still has trouble with his knee as a result of the attack. Cynthia Webb testified that she helped Skapik for several weeks because of his injuries, including his inability to walk.
Skapik and the Webbs testified that there had not been much drinking at the picnic the day before the attack. Officer Thomas also stated that Skapik did not appear to be under the influence of alcohol when Thomas responded to his apartment.
Skapik filed a complaint with Detective Richard Davidson on July 10. He did not mention Goldick's apology at that time.

State v. Goldick, 2009 WL 1264276 at *2-*3 (Ohio Ct. App., May 8, 2009); see Doc. #4, Exhibit 7.

The Ohio Court of Appeals described Goldick's trial evidence as follows:

Goldick presented testimony from his mother, Anita Good, and from Griffin. Both women stated that, on July 7, they had spent the night at Good's house with Goldick and that he had not left at any time. Griffin also denied that she had left the house that night. Griffin stated that she and Goldick shared a bed and that she slept "like a bear cub" with Goldick's arms wrapped tightly around her such that she would have known if he had gotten out of bed. Good also testified that it was unlikely anyone could have left the house during the night without her knowledge, and that she had not heard anything noteworthy during the early morning hours of July 8. Griffin claimed that when she, Goldick, and the Webbs visited Skapik in the evening of July 7, she could smell that Skapik had been drinking. She also claimed that Skapik had asked for money and had been verbally abusive.

State v. Goldick, 2009 WL 1264276 at *4) (Ohio Ct. App., May 8, 2009); see Doc. #4, Exh. 7.

As noted previously, the jury found Goldick guilty of aggravated burglary and felonious assault. The trial court sentenced him to concurrent terms of imprisonment lasting ten years and eight years, resulting in an aggregate ten-year sentence.

Goldick, through counsel, next pursued direct appeal by raising four assignments of error on direct appeal:

[His] conviction is not supported by sufficient evidence and is against the manifest weight of the evidence[.]
[He] was denied a fair trial due to the admission of prohibited prior bad acts evidence and testimony that is collateral, unsubstantiated and more prejudicial than probative[.]
[His] conviction must be reversed due to prosecutorial misconduct[.]
[He] was denied a fair trial due to the ineffective assistance of trial counsel[.]
Cumulative errors deprived [him]... a fair trial[.]

(Doc. #4, Exh. 5) (capitalization omitted; brackets added). In May 2009, the Ohio Court of Appeals overruled each assignment of error and affirmed Goldick's convictions. In September 2009, the Ohio Supreme Court denied him leave to appeal in September 2009.

B. Petition for Postconviction Relief

Meanwhile, on April 28, 2009, Goldick's counsel filed a Petition for Postconviction Relief in the Court of Common Pleas under Ohio Rev. Code §2953.21. Goldick argued that his trial counsel provided constitutionally ineffective assistance in the following manner:

Prior to trial, the prosecutor was unprepared and requested a continuance. Petitioner said no but Counsel promised that the Petitioner would receive COR bond if he agreed. Based on this promise, Petitioner agreed. Counsel also told the Petitioner's witnesses that they must speak to the prosecutor. Further, Counsel was informed that two of the State's witnesses had outstanding warrants but failed to use this information. Counsel displayed an unprofessionally deferential relationship with the prosecutor. The Petitioner wrote to the judge to fire trial counsel but rescinded this attempt due to the promise of bond, which was never granted.

(Doc. #4, Exh., 15, PageID at 253). Rejecting Goldick's ineffective-assistance claim, the trial court overruled his §2953.21 Petition on September 28, 2009. Id., Exh. 18.

Just over one week later, Goldick filed a Notice of Appeal. Id., Exh. 19. Soon after, in early November 2009, the Ohio Court of Appeals granted the State of Ohio's Motion to Dismiss, concluding incorrectly that the trial court had not yet ruled on Goldick's §2953.21. Id., Exhs. 20, 21. The Ohio Court of Appeals later sustained Goldick's Motion for Reconsideration, thus reviving his Notice of Appeal. Further briefing ensued with Goldick raised three assignments of error:

Trial counsel provided ineffective assistance of counsel when he coerced [Goldick] into signing a time waiver with the promise of being released C.O.R. Bond.
[Goldick's] speedy trial rights were violated when the court, trial counsel and prosecutor promised [him] a C.O.R. bond in lieu of signing a time waiver.
Trial counsel provided ineffective assistance of counsel when he failed to use evidence to impeach the State's only corroborating witness.

(Doc. #4, Exh. 24). The Ohio Court of Appeals overruled each assignment of error and affirmed the trial court's denial of Goldick's §2923.21 Petition. State v. Goldick, 2010 WL 3610457 (Ohio Ct. App. Sept. 17, 2010); see Doc. #4, Exh. 26. The Ohio Supreme Court denied him leave to appeal.

C. Other Matters in State Court

The state court record filed in the present case contains a document Goldick filed in the Ohio Court of Appeals on October 19, 2009. He captioned it, "Brief of Appellant for Post Conviction Appeal." (Doc. #4, Exh. 11). The Ohio Court of Appeals concluded ...


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