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Boddie v. State

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

May 15, 2017

HOWARD BODDIE, JR., Petitioner,
v.
STATE OF OHIO, Respondent.

          MICHAEL H. WATSON JUDGE.

          ORDER AND REPORT AND RECOMMENDATION

          Norah McCann King United States Magistrate Judge.

         Petitioner, a former state prisoner who is currently under the supervision of the Ohio Adult Parole Authority, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.[1] This matter is before the Court on the Petition (Doc. 1); Respondent's Motion to Dismiss or, in the Alternative, Answer/Return of Writ (Doc. 8); Petitioner's Contra Motion to Respondent's Motion to Dismiss, Motion for Appointment of Counsel, Motion for Release of Exculpatory Evidence (Doc. 9); Respondent's Reply to Petitioner's Opposition to Respondent's Motion to Dismiss, and Respondent's Opposition to Petitioner's Motions for Appointment of Counsel and Release of Exculpatory Evidence (Doc. 10); Respondent's Notice of Supplement to the Record (Doc. 11); Petitioner's Opposition to Respondent's Motion to Dismiss and Motion for Evidentiary Hearing (Doc. 13); Petitioner's Notice of Supplement to the Record (Doc. 14); Respondent's Motion to Strike Petitioner's Notice of Supplement to the Record (Doc. 15); Petitioner's Motion in Opposition to Strike Karen T. Monroe's Health Care Power of Attorney Filed in Petitioner's Notice of Supplement to the Record (Doc. 16), and the exhibits of the parties.

         For the reasons that follow, the Magistrate Judge RECOMMENDS that Respondent's motion to dismiss (Doc. 8) be GRANTED and that this action be DISMISSED.

         Petitioner's motions for the appointment of counsel, for the release of exculpatory evidence, and for an evidentiary hearing (Docs. 9, 13) are DENIED.

         Respondent's Motion to Strike Petitioner's Notice of Supplement to the Record (Doc. 15) is GRANTED.

         Facts and Procedural History

         The procedural history has been previously outlined by this Court, see Boddie v. Warden, Chillicothe Correctional Institution, No. 2:14-cv-226, Report and Recommendation (Doc. 27), but is repeated herein as follows:

On May 6, 2008, a Franklin County Grand Jury indicted appellant on one count of domestic violence in violation of R.C. 2919.25 and one count of abduction in violation of R.C. 2905.02, both felony offenses. Appellant entered a not guilty plea to the charges. Eventually, a jury found appellant guilty of both charges on May 27, 2010. The trial court sentenced appellant accordingly.

         Appellant appeals and assigns the following errors:

I. APPELLANT'S RIGHT TO A SPEEDY TRIAL WAS VIOLATED UNDER OHIO LAW AS WELL AS THE OHIO AND FEDERAL CONSTITUTIONS WHEN NUMEROUS DELAYS OCCURRED PRIOR TO HIS TRIAL.
II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONTRA HIS RIGHTS UNDER THE OHIO AND FEDEAL CONSTITUTIONS.

State v. Boddie, No. 10AP-687, 2011 WL 2586717, at *1 (Ohio App. 10th Dist. June 30, 2011). On June 30, 2011, the appellate court affirmed the judgment of the trial court. Id. Petitioner did not file a timely appeal. On November 10, 2011, he filed a motion requesting the transcripts of voir dire proceedings, and of competency and bond hearings. (Doc. 8-1, PageID# 406). On January 4, 2012, the trial court denied Petitioner's requests. Entry (PageID# 412). On April 25, 2016, Petitioner filed a Motion for Delayed Appeal. (Doc. 8-1, PageID# 575). On June 15, 2016, the Ohio Supreme Court denied the motion and dismissed the appeal. State v. Boddie, 146 Ohio St.3d 1414 (Ohio 2016); (PageID# 589).

         On June 20, 2012, petitioner filed a pro se motion to reopen his appeal pursuant to Rule 26(B) of the Ohio Rules of Appellate Procedure, again asserting the denial of a speedy trial and the ineffective assistance of trial counsel. (Doc. 8-1, PageID# 189). On September 25, 2012, the Ohio Tenth District Court of Appeals denied petitioner's motion as untimely and without merit. (Doc. 8-1, PageID# 297). Petitioner filed a timely appeal from that decision. (Doc. 8-1, PageID# 305). He also filed, on December 12, 2012, a motion to take judicial notice and request for a copy of the transcripts of voir dire proceedings. (PageID# 327). On February 6, 2013, the Ohio Supreme Court dismissed the appeal and denied as moot Petitioner's motion to take judicial notice and to provide a complete copy of voir dire transcripts. (PageID# 337); State v. Boddie, 134 Ohio St.3d 1451 (Ohio 2013).

On July 26, 2011, appellant filed a “petition to vacate or set aside judgment of conviction or sentence.” Therein, appellant again claimed that he had been denied the effective assistance of trial counsel. He also alleged that law enforcement threatened to pursue criminal charges against the victim if she refused to testify against him, and in turn, she committed perjury. Appellant asserted that the victim's health history and prior criminal convictions affected her credibility. Appellant attached several unsworn documents to his petition. Among these documents were letters that appellant claimed were written by the victim, including one in which the victim stated that appellant “did not abduct” her. (R. 213.)
On June 1, 2012, appellant filed a “motion to vacate sentence, ” which again raised an ineffective assistance of trial counsel claim and also alleged he was denied his right to a speedy trial.
On September 8, 2011, without holding a hearing, the trial court denied the July 26, 2011 petition because the issues raised by appellant were barred by the doctrine of res judicata. The trial court also denied appellant's June 1, 2012 motion to vacate his sentence on August 15, 2012 without holding a hearing. The court reasoned that res judicata precluded appellant from raising the issue of a speedy trial violation, and he failed to support the substantive requirements for his ineffective assistance of counsel claim. Appellant appealed from the judgments of the trial court, and this court consolidated the appeals.

         Appellant assigns three errors for our consideration:

[I.] Appellant contends that the trial court committed plain and prejudicial error, and denied him due process and equal protection of law when the trial court denied appellant's motion for post-conviction relief without (1) holding a formal hearing/evidentiary hearing on his misconduct claims, and (2) for denying the petition without providing findings of facts and conclusions of law in violation of appellant's U.S. constitutional rights to meaningful access-to-the court founded under the 1st, and 14th amendments.
[II.] Appellant contends that he was denied due process and meaningful access-to-the-courts when the trial court denied appellant's post-conviction motion on res -judicata grounds in violation of appellant's 1st and 14th amendment rights under the United States Constitution.
[III.] Appellant contends that the trial court violated his constitutional rights to meaningful access-to-the courts, due process, and equal protection of law under the 1st and 14th amendments to the U.S. Constitutions when the court deliberately ignored evidence presented that appellant suffered ineffective assistance of counsel at trial.

State v. Boddie, Nos. 12AP-811, 12AP-812, 2013 WL 4973012, at *1-3 (Ohio App. 10th Dist. Sept. 12, 2013). On September 12, 2013, the appellate court affirmed the judgment of the trial court. Id. Petitioner apparently did not file an appeal from that decision to the Ohio Supreme Court.

         However, on October 15, 2012, Petitioner filed a petition for a writ of habeas corpus with the Supreme Court of Ohio. (Doc. 8-1, PageID# 530). On November 28, 2012, the Ohio Supreme Court sua sponte dismissed that action. (PageID# 572).

         On March 3, 2014, Petitioner filed his first federal habeas corpus petition pursuant to 28 U.S.C. § 2254. Boddie v. Warden, Chillicothe Correctional Institution, No. 2:14-cv-226 (S.D. Ohio). On September 17, 2015, this Court dismissed that action without prejudice as unexhausted. Id., Judgment (Doc. 32). Petitioner filed a notice of appeal from that decision, id., Notice of Appeal (Doc. 24), but this Court and the United States Court of Appeals for the Sixth Circuit declined to issue a certificate of appealability. Id., Order (Doc. 41); Boddie v. Jenkins, No. 15-4153 (6th Cir. Mar. 25, 2016). On July 8, 2016, Petitioner filed a Notice of Exhaustion of Claim Six and Motion for a Certificate of Appealability and Motion for Appointment of Counsel. See id., Judgment (Doc. 38). The Court denied Petitioner's motion and directed him to file a new petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Id. (Doc. 41).

         On August 25, 2016, Petitioner filed this habeas corpus petition. He alleges that the trial court improperly denied his petition for post conviction relief without conducting an evidentiary hearing (claim one); that the trial court abused its discretion and denied him access to the courts and due process by denying his post conviction claims as barred under Ohio's doctrine of res judicata (claim two); that he was denied due process and equal protection by the Ohio Supreme Court's failure to provide him with a transcript of voir dire proceedings, and that the prosecutor and defense counsel during voir dire tainted the jury and caused juror bias (claim three); that he was denied a fair trial by the prosecutor's use of false and perjured testimony and that he was denied his right to a speedy trial (claim four); that he was denied access to the courts, equal protection of the law, and due process due to the Ohio Supreme Court's refusal to permit the filing of an untimely appeal in post conviction proceedings (claim five); that he was denied the effective assistance of trial counsel based on his attorney's failure to conduct pre-trial consultation and investigation (claim six); that he was denied the right to a fair trial, due process, and equal protection of the law, and the right of confrontation due to the fraudulent concealment of exculpatory and impeachment evidence (claim seven); that the evidence is constitutionally insufficient to sustain his convictions on domestic violence and abduction (claims eight and nine); and that he was convicted in violation of the Fourth Amendment (claim ten). Respondent contends that the Court should dismiss this action as barred by the one-year statute of limitations under 28 U.S.C. § 2244(d) and, alternatively, that Petitioner's claims are procedurally defaulted or otherwise fail to provide a basis for federal habeas corpus relief.

         Motion to Strike Petitioner's Notice of Supplement to the Record

         On November 9, 2016, Petitioner filed a Notice of Supplement to the Record, to which he attached what appears to be a document indicating that, on November 3, 2016, Karen Monroe, the alleged victim, gave him the power of attorney to make health care decisions on her behalf. (Doc. 14, PageID# 989-99). Petitioner apparently seeks to expand the record to make this document a part of the record in this case. Respondent opposes any such expansion of the record, arguing that the document is not relevant to these proceedings and that, in any event, the Court must limit its review to the record that the state courts considered when it adjudicated Petitioner's claims. Respondent's Motion to Strike Petitioner's Notice of Supplement to the Record (Doc. 15)(citing Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011)).

         Petitioner insists that evidence indicating that Monroe granted him a power of attorney over her health care decisions in November 2016 supports his allegation that his prosecution was based on improper motives and denied him due process, equal protection and the effective assistance of counsel. In support of this argument, Petitioner refers to portions of the trial transcript indicating that Monroe had granted Petitioner the power of attorney to make end of life health care decisions on her behalf, but that the trial court prohibited Petitioner from testifying regarding Monroe's alleged psychiatric hospitalizations, HIV condition, or other health issues. See, e.g., Transcript (Doc. 8-3, PageID# 803-08). Petitioner also refers to a letter written by him to Monroe on April 23, 2008, which was admitted as evidence against him at trial. See id. (Doc. 8-3, PageID# 663). According to Petitioner, the State denied him access to that document until May 2011. See Petitioner's Motion in Opposition to Strike Karen T. Monroe's Health Care Power of Attorney Filed in Petitioner's Notice of Supplement to the Record (Doc. 16).

         This Court is not persuaded that the November 2016 document attached to Petitioner's Notice of Supplement to the Record is relevant to the claims asserted in this action. Whether Monroe granted Petitioner a health care power of attorney in November 2016 - years after the incident at issue and the trial in this case - simply has no relevance to this Court's determination of the timeliness of the action or whether Petitioner's claims are procedurally defaulted or fail to state a claim for federal habeas corpus relief. Further, Respondent correctly notes that this Court is constrained by the Supreme Court's decision in Pinholster to limit its review to the record that was before the state court.

         Therefore, Respondent's Motion to Strike Petitioner's Notice of Supplement to the Record (Doc. 15) is GRANTED.

         Motion for the Appointment of Counsel and an Evidentiary Hearing

         Petitioner requests the assistance of Court appointed counsel in these proceedings and seeks an evidentiary hearing on his claims. (Docs. 9, 13).

         Habeas corpus proceedings are considered to be civil in nature, and the Sixth Amendment does not guarantee the right to counsel in such proceedings. McCleskey v. Zant, 499 U.S. 467, 495 (1991)(no constitutional right to counsel in federal habeas); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)(no right to counsel beyond first appeal of right); Hilton v. Braunskill, 481 U.S. 770, 776 (1987)(“habeas corpus proceedings are civil in nature”)). See also Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994)(citing Boyd v. Groose, 4 F.2d 669, 671 (8th Cir. 1993)). “Never has it been held that there is a constitutional right to counsel in a habeas action.” Id. at 471 (citing Blair v. Armontrout, 916 F.2d 1310, 1332 (8th Cir. 1990); Johnson v. Avery, 393 U.S. 483, 488 (1969)). Rather, “[t]he decision to appoint counsel for a federal habeas petitioner is within the discretion of the court and is required only where the interests of justice or due process so require.” Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986)(citations omitted); 18 U.S.C. § 3006(a)(2)(B). Specifically, the appointment of counsel is required where an evidentiary hearing is necessary to resolve a petitioner's claims. See Rule 8 of the Rules Governing Section 2254 Cases in the United States District Courts. In determining whether to exercise its discretion in favor of appointing counsel on a petitioner's behalf, a court should consider “the legal and factual complexity of the case, the petitioner's ability to investigate and present his claims, and any other relevant factors.” Mathhews v. Jones, No. 5:13-cv-1850, 2015 WL 545752, at *3 (N.D. Ohio Feb. 10, 2015)(citations omitted).

         Petitioner contends that counsel should be appointed in these proceedgings because he has been denied the effective assistance of counsel in state court proceedings. With proper representation and investigation by counsel, Petitioner argues, he can establish that he is actually innocent of the charges against him and that he has presented meritorious claims for relief. However, arguments such as these are not atypical in habeas corpus proceedings and do not warrant the appointment of counsel on Petitioner's behalf. Moreover, the record does not indicate that an evidentiary hearing will be required to resolve any of the issues presented in this action. As discussed below, Petitioner's claims are procedurally defaulted or otherwise plainly fail to provide a basis for relief. Moreover, the record does not indicate that this case is so unduly complex that the interests of justice or notions of due process require the appointment of counsel on Petitioner's behalf. To the contrary, the record indicates that Petitioner has capably initiated numerous state court actions on his own behalf and has more than adequately presented his arguments in these proceedings.

         Petitioner's request for the appointment of counsel and for an evidentiary ...


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