United States District Court, S.D. Ohio, Eastern Division
ALGENON L. MARBLEY, JUDGE
OPINION AND ORDER
McCann King, United States Magistrate Judge
a state prisoner, 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 (Doc. No. 3),
Respondent's Return of Writ (Doc. No. 7),
Petitioner's Traverse (Doc. No. 8), and the
exhibits of the parties. For the reasons that follow, the
Magistrate Judge RECOMMENDS that this action be DISMISSED.
and Procedural History
Ohio Fourth District Court of Appeals summarized the facts
and procedural history of the case as follows:
This is an appeal from a Hocking County Common Pleas Court
judgment convicting Appellant after a jury found him guilty
of five felony offenses, which included aggravated robbery
and felonious assault, both with firearm specifications,
tampering with evidence, aggravated trafficking in drugs, and
having weapons while under a disability. Appellant was
sentenced to an aggregate sentence of twenty-three years as a
result of his convictions. On appeal, Appellants raises two
assignments of error, contending that 1) his conviction was
based upon insufficient evidence; and 2) the trial court
committed harmful error in imposing sentence.
Because we conclude that a rational trier of fact could have
found all of the essential elements of aggravated robbery
were proven beyond a reasonable doubt and, as such, that
Appellant's conviction for aggravated robbery was
supported by sufficient evidence, Appellant's first
assignment of error is overruled. Further, in light of our
conclusion that Appellant's aggravated robbery and
felonious assault convictions involved two separate victims,
we cannot conclude that the trial court erred in failing to
merge these convictions for purposes of sentencing. Finally,
because the trial court was required, under R.C.
2929.14(B)(1)(g) to impose consecutive sentences for both
firearm specifications, we find no “harmful
error” in the imposition of the sentences. As such,
Appellant's second assignment of error is also overruled.
Accordingly, the decision of the trial court is affirmed.
A multi-count indictment was brought against Appellant on
February 22, 2013, charging Appellant with aggravated robbery
with a firearm specification, a first degree felony in
violation of R.C. 2911.01(A)(1) and 2941.145, felonious
assault with a firearm specification, a second degree felony
in violation of R.C. 2903.11(A)(2) and 2941.145, tampering
with evidence, a third degree felony in violation of R.C.
2921.12(A)(1), aggravated trafficking in drugs, a third
degree felony in violation of R.C. 2925.03(A)(1), having
weapons while under a disability, a third degree felony in
violation of R.C. 2923.13(A)(2), and receiving stolen
property, a fifth degree felony in violation of R.C.
2913.51(A). Appellant pled not guilty and the matter
proceeded to a two-day trial, beginning on June 11, 2013.
The State's theory at trial was that a drug transaction
was arranged as a “subterfuge” to commit robbery.
The State presented three witnesses [who] were present the
night the incident occurred: Sarah Williamson, Thomas Bailey,
and Michael Herrold. Williamson testified that she had been
in contact with an old friend, Amanda Thompson, [who] had
asked her if she could “get rid of any Perc 30s[,
]” or 30 mg. Percocet pills. She testified that her
friend, Thomas Bailey, wanted some, so she essentially set up
the transaction, the plan being for Thompson to bring the
drugs to a local Speedway. Apparently, however, when it was
all said and done, Thompson arrived in town with two other
adults and a baby in her vehicle, and came to
Williamson's house instead of Speedway.
Williamson testified that Thomas Bailey and Michael Herrold
were with her on the night of the incident. She testified
that after she handed the money for the drugs to an occupant
named Sharvonne, who was seated in the front seat of the
vehicle, Appellant, who was seated in the back of the
vehicle, jumped out with a gun, told Bailey and Herrold to
get on the ground, and then went through Bailey's
pockets. Williamson then detailed the events that led to a
shooting, which formed the basis of the felonious assault
charge, which is not at issue on appeal.
Bailey and Herrold also testified[;] however, both denied any
knowledge of a drug transaction. Their testimony will be
detailed more fully below, however, both testified in
accordance with Williamson, with respect to Appellant jumping
out the vehicle with a gun, ordering them to the ground, and
robbing Bailey. The defense theory at trial seemed to be that
this was simply a drug deal that went wrong, and that no
theft offense, and thus, no aggravated robbery occurred.
However, Appellant did not testify at trial, nor present any
witnesses in his defense. At the close of the State's
evidence, Appellant moved for acquittal pursuant to Crim.R.
29(A), which was denied by the trial court, and the matter
was submitted to the jury for determination.
The jury convicted Appellant of aggravated robbery, felonious
assault, aggravated trafficking in drugs, tampering with
evidence, having a weapon while under a disability, and both
firearm specifications. Appellant was acquitted on the charge
of receiving stolen property. The trial court sentenced
Appellant to a ten-year term of imprisonment on the
aggravated robbery conviction and a seven-year term of
imprisonment on the felonious assault conviction, to be
served consecutively to one another. The trial court also
sentenced Appellant to three-year terms of imprisonment on
each firearm specification, to be served consecutively to one
another and consecutively to the underlying charges, for an
aggregate prison term of twenty-three years. The sentences
for the remaining convictions were ordered to be served
concurrently to these sentences.
State v. Love, No. 13CA16, 2014 WL 1494128, at *1-2
(Ohio App. 4th Dist. April 10, 2014). On April 10,
2014, the appellate court affirmed the judgment of the trial
court. Id. On September 3, 2014, the Ohio Supreme
Court declined to accept jurisdiction of the appeal.
State v. Love, 140 Ohio St.3d 1417 (2014).
14, 2014, Petitioner filed an application to reopen the
appeal pursuant to Ohio Appellate rule 26(B), alleging that
he had been denied the effective assistance of appellate
counsel because his attorney failed to raise on appeal a
claim that the evidence was constitutionally insufficient to
sustain his convictions; that the trial court had improperly
imposed sentence; that he had been denied the effective
assistance of trial counsel based on his attorney's
waiver of Petitioner's right to a speedy trial, waiver
regarding admission of Petitioner's prior juvenile
record, and inadequate trial performance; that the trial
court had improperly permitted the admission of perjured
testimony; that his convictions were against the manifest
weight of the evidence; that he had been denied a fair trial
due to prosecutorial misconduct; and that cumulative error
had denied him due process. Application for
Reopening (Doc. No. 7-1, PageID# 229-235). On October 2,
2014, the appellate court denied that application as
untimely. Decision and Judgment Entry (Doc. No. 7-1,
PageID# 253). On January 28, 2015, the Ohio Supreme Court
declined to accept jurisdiction of the appeal from that
decision. Entry (Doc. No. 7-1, PageID# 286).
January 8, 2016, Petitioner filed the pro se
Petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. He alleges that the evidence was
constitutionally insufficient to sustain his convictions
(claim one); that the trial court improperly imposed
consecutive terms of incarceration (claim two); that he was
denied the effective assistance of trial counsel due to his
attorney's failure to object to the introduction of
Petitioner's prior juvenile record, to impeach witnesses,
to file a motion to suppress evidence, to object to the
imposition of sentence, inadmissible evidence or
prosecutorial misconduct (claims three and four); that he was
denied a fair trial due to the admission of perjured
testimony (claim five); that he was denied a fair trial
because of prosecutorial misconduct (claim six); that he was
denied the effective assistance of appellate counsel (claim
seven); and that he was denied due process because the state
courts failed to investigate and consider his claim that the
clerk had withheld his Rule 26(B) application past the filing
deadline (claim eight). Respondent contends that
Petitioner's claims are procedurally defaulted or without
Petitioner seeks habeas relief under 28 U.S.C. § 2254,
the familiar standards of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) govern this case. The
United State Supreme Court has described AEDPA as “a
formidable barrier to federal habeas relief for prisoners
whose claims have been adjudicated in state court” and
emphasized that courts must not “lightly conclude that
a State's criminal justice system has experienced the
‘extreme malfunction' for which federal habeas
relief is the remedy.” Burt v. Titlow,
--U.S.--, 134 S.Ct. 10, 16 (2013) (quoting Harrington v.
Richter, 562 U.S. 86 (2011)); see also Renico v.
Lett, 559 U.S. 766, 773 (2010) (“AEDPA . . .
imposes a highly deferential standard for evaluating
state-court rulings, and demands that state court decisions
be given the benefit of the doubt.”) (internal
quotation marks, citations, and footnote omitted).
courts are prohibited from granting habeas relief with
respect to a “claim that was adjudicated on the merits
in State court proceedings” unless the state-court
(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;
(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). Further, the factual findings of
the state court are presumed to be correct:
In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment
of a State court, a determination of a factual issue made by
a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.
28 U.S.C. § 2254(e)(1).
“a writ of habeas corpus should be denied unless the
state court decision was contrary to, or involved an
unreasonable application of, clearly established federal law
as determined by the Supreme Court, or based on an
unreasonable determination of the facts in light of the
evidence presented to the state courts.” Coley v.
Bagley, 706 F.3d 741, 748 (6th Cir. 2013) (citing
Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir.
2006)). The United States Court of Appeals for the Sixth
Circuit explained these standards as follows:
A state court's decision is “contrary to”
Supreme Court precedent if (1) “the state court arrives
at a conclusion opposite to that reached by [the Supreme]
Court on a question of law[, ]” or (2) “the state
court confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives” at
a different result. Williams v. Taylor, 529 U.S.
362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state
court's decision is an “unreasonable
application” under 28 U.S.C. § 2254(d)(1) if it
“identifies the correct governing legal rule from [the
Supreme] Court's cases but unreasonably applies it to the
facts of the particular ... case” or either
unreasonably extends or unreasonably refuses to extend a
legal principle from Supreme Court precedent to a new
context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495,
146 L.Ed.2d 389.
Coley, 706 F.3d at 748-49. The burden of satisfying
AEDPA's standards rests with the petitioner. See
Cullen v. Pinholster, ...