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Love v. Warden Ross Correctional Institution

United States District Court, S.D. Ohio, Eastern Division

April 7, 2017

WARREN LOVE, Petitioner,
v.
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

          ALGENON L. MARBLEY, JUDGE

          OPINION AND ORDER

          Norah McCann King, United States Magistrate Judge

         Petitioner, 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.

         Facts and Procedural History

         The 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.
FACTS
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).

         On July 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).

         On 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 merit.

         Merits

         Standard of Review

         Because 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).

         Federal 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 decision either:

(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). 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).

         Accordingly, “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, ...


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