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Perry v. Tibbles

United States District Court, Sixth Circuit

August 30, 2013

William Douglas Perry, Petitioner,
v.
Warden Tibbles, Respondent.

MEMORANDUM OPINION AND ORDER

JACK ZOUHARY, District Judge.

INTRODUCTION

Pro se Petitioner William Douglas Perry filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Magistrate Judge's Report and Recommendation ("R&R") recommended this Court deny the Petition (Doc. 16). Petitioner objects to the Magistrate Judge's finding that the state appellate court's findings regarding counsel's performance and the voluntary nature of his plea was not an unreasonable application of federal law (Doc. 19 at 5). Petitioner also objects to the Magistrate Judge's finding that the state appellate court reasonably applied federal law to conclude he received fair notice of the charges against him ( id. at 21). In accordance with Hill v. Duriron Co., 656 F.2d 1208 (6th Cir. 1981) and 28 U.S.C. §§ 636(b)(1)(B) & (C), this Court has reviewed the Magistrate Judge's R&R de novo. For the following reasons, this Court adopts the R&R and denies the Petition.

BACKGROUND

Petitioner is currently incarcerated by the State following a guilty plea to two counts of aggravated murder with death penalty specifications, one count of aggravated robbery, one count of aggravated burglary, one count of tampering with evidence, and one count of gross abuse of a corpse (Doc. 8-1 at 21-22). For these crimes, Petitioner is serving a sentence of life without the possibility of parole ( id. at 15-16). This Court adopts the factual recitation in the R&R, which includes facts to which the parties stipulated in state court (Doc. 16 at 2-7). In brief, Petitioner pled guilty to murdering his neighbor, Brett Smith, in October 2008. Smith's body, found by family members, was decapitated and mutilated in his trailer home. Overwhelming evidence pointed to Petitioner as the killer.

In April 2010, Petitioner, pro se, submitted a Request for Leave to File Delayed Appeal pursuant to Ohio App. R. 5(A) with the state appellate court (Doc. 8-1 at 42). Petitioner indicated he would raise four assignments of error. In May 2010, the state appellate court found Petitioner failed to establish good cause for the delay in filing a timely appeal and denied Petitioner's Request (Doc. 8-1 at 105). In June 2010, Petitioner filed a Notice of Appeal with the Supreme Court of Ohio (Doc. 8-1). In August 2010, the Supreme Court of Ohio dismissed the appeal "as not involving any substantial constitutional question" (Doc. 8-1 at 134).

Meanwhile, in June 2010, Petitioner, pro se, filed with the state trial court a Petition to Vacate or Set Aside Sentence, raising four grounds for relief: (1) Petitioner's trial counsel was ineffective and prejudiced him by allowing him to enter a guilty plea while under the influence of drugs; (2) the Indictment failed to charge an offense by omitting essential elements; (3) the Indictment failed to give Petitioner adequate notice of all essential elements of the alleged offenses; and (4) because the Indictment failed to charge an offense for the counts of aggravated robbery and aggravated burglary, these counts failed to qualify as valid predicate offenses, rendering the Indictment for aggravated murder void (Doc. 8-1 at 136-45). In June 2010, the trial court denied the Petition as untimely (Doc. 8-1 at 180).

Petitioner appealed the trial court's denial of his Petition to the state appellate court (Doc. 8-1 at 181), raising two assignments of error: (1) Petitioner received ineffective assistance of counsel when counsel failed to argue the insufficiency of the Indictment and coerced him to plead guilty while under the influence of mind-altering drugs; and (2) the Indictment fails to charge a certain offense because it omitted essential elements (Doc. 8-2 at 2). In January 2011, the state appellate court held "the trial court correctly found [Petitioner's] petition untimely filed" ( id. at 71, ¶ 29). The court nonetheless addressed Petitioner's substantive claims and found them to be without merit (Doc. 8-2 at 71, ¶ 29).

Petitioner appealed to the Supreme Court of Ohio arguing: (1) Petitioner received ineffective assistance of counsel when counsel failed to challenge the sufficiency of the Indictment and coerced him to plead guilty to the charges while under the influence of prescription mind-altering drugs; and (2) the Indictment failed to properly charge certain offenses because it omitted essential elements, thereby failing to invoke the court's jurisdiction (Doc. 8-2 at 94). In May 2011, the Supreme Court of Ohio dismissed the appeal as not involving a substantial constitutional question ( id. at 139).

Petitioner filed the instant Petition in this Court in April 2012, raising two grounds for relief: (1) Petitioner received ineffective assistance of counsel when counsel failed to argue the insufficiency of the Indictment and coerced him to plead guilty to all charges while under the influence of prescription, mind-altering drugs in violation of the Sixth Amendment and Article I, Section 10 of the Ohio Constitution (Doc. 1 at 5); and (2) the Indictment failed to properly charge a certain offense by omitting essential elements, thereby failing to invoke the court's jurisdiction and failing to have the grand jury determine probable cause for every element of the charged offenses in violation of Petitioner's Due Process rights under the Fourth, Fifth, and Fourteenth Amendments, as well as Article I, Section 10 of the Ohio Constitution (Doc. 1 at 6).

STANDARD OF REVIEW

When a federal habeas claim has been adjudicated by the state courts, 28 U.S.C. § 2254(d)(1) provides the writ shall not issue unless the state decision "was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States." A federal court may grant habeas relief if the state court arrives at a decision contrary to the Supreme Court of the United States on a question of law, or if the state court decides a case differently than did the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 404 (2000). The appropriate standard is whether a state court's application of clearly established federal law was unreasonable, and not merely erroneous or incorrect. Id. at 409-11; see also Machacek v. Hofbauer, 213 F.3d 947, 953 (6th Cir. 2000). This is a demanding standard met "only if reasonable jurists would find it so arbitrary, unsupported or offensive to existing precedent as to fall outside the realm of plausible outcomes." Barker v. Yukins, 199 F.3d 867, 872 (6th Cir. 1999).

DISCUSSION

This Court adopts the Magistrate Judge's recommendation to address the merits of the Petition, rather than procedural default issues raised by the State. See Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003). Because Petitioner's claims of ineffective assistance of counsel rest partially on his argument ...


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