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West v. Bradshaw

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

June 7, 2017




         Before the Court is the Report and Recommendation of Magistrate Judge Nancy A. Vecchiarelli, recommending denial of this petition for writ of habeas corpus filed under 28 U.S.C. § 2254. (Doc. No. 64 [“R&R”].) After requesting and receiving two extensions of time, petitioner filed objections. (Doc. No. 68 [“Obj.”].) Respondent filed a response to petitioner's objections. (Doc. No. 69 [“Resp.”].) Pursuant to Fed.R.Civ.P. 72(b)(3), the Court has conducted its de novo review of any matter properly raised in the objections. For the reasons discussed below, petitioner's objections are overruled and the R&R is accepted.

         I. BACKGROUND

         The record relating to this petition is somewhat complicated. It consists of the following documents: Petition (Doc. No. 1 [“Pet.”]); Supplement to Petition (Doc. No. 40 [“Pet. Supp.”], styled as a motion to amend[1]); Return of Writ (Doc. No. 50 [“Return”]); Supplemental Records re: New Trial (Doc. No. 58-1 [“Return Supp.”]); Traverse (Doc. No. 62 [“Traverse”]); and Reply (Doc. No. 63 [“Reply”]).[2]

         On March 29, 2011, petitioner was indicted by a grand jury on one count of illegal manufacture of drugs or cultivation of marijuana (O.R.C. § 2925.04(A)); one count of trafficking (O.R.C. § 2925.03(A)(2)); one count of drug possession (O.R.C. § 2925.11(A)); and one count of possessing criminal tools (O.R.C. § 2923.24(A)). All charges carried numerous forfeiture specifications. (Return at 875-83[3] (Ex. 1).)

         Represented by counsel, petitioner entered a plea of not guilty. (Id. at 884 (Ex. 2).) On September 11, 2011, petitioner filed a motion seeking to be tried separately from his brother, Todd West, who had also been indicted for the same crimes. (Id. at 889-95 (Ex. 4).) During a pre-trial hearing on September 12, 2011, with petitioner present, petitioner's counsel, Mr. DeFranco, represented to the Court that he had “spoke[n] with Mr. Gibbons [Todd West's attorney], spoken to my client, and it would be our position to withdraw that motion at this time.” (Id. at 1663 (Tr. Vol 1).)

         Petitioner had been arrested on November 5, 2010, along with his brother, Todd West, at 2341 Scranton Road in Cleveland, Ohio. Search warrants had been previously obtained to permit thermal imaging “fly-overs” of that location, as well as the homes of petitioner and of his brother (both in Westlake, Ohio); warrants were later obtained to search all of these premises. On the day of the arrest, Todd West allegedly made certain statements to the police. On September 12, 2011, Todd West, also represented by counsel (Mr. Gibbons), filed a notice to suppress any evidence obtained from both the thermal imaging search warrants and the premises search warrants, as well as his statements, which he alleged violated the Fifth Amendment. (Id. at 885 (Ex. 3).) At the pre-trial hearing on September 12, 2011, petitioner's counsel indicated petitioner's desire to join that motion to suppress. (Id. at 1666 (Tr. Vol. 1).) Following a hearing on the motion to suppress on September 13, 2011, the trial court denied the motion in its entirety. (Id. at 1810-37; 1850.)

         On September 16, 2011, a jury found petitioner guilty on all charges. (Id. at 897 (Ex. 6).) After the trial court merged the trafficking and drug possession convictions and the State elected sentencing on the trafficking conviction, the trial court sentenced petitioner to a mandatory eight (8) years in prison for the illegal drug manufacture/cultivation conviction, a mandatory consecutive eight (8) years for the trafficking conviction, and twelve (12) concurrent months for the possession of criminal tools conviction, resulting in an aggregate sixteen (16) year sentence. (Id.)

         Following a forfeiture hearing (see Id. at 2530-2610 (Tr. Vol. 5)), on January 13, 2012, the trial court issued a final order of sentencing and forfeiture, including a ruling regarding claims of interest in the properties filed by third parties (rejecting that of Donnalee West and accepting that of Nicholas Kulon).[4] (Id. at 913-15 (Ex. 12).)

         Petitioner filed a direct appeal.[5] (Id. at 925 (Ex. 18).) On January 17, 2013, the Eighth District Court of Appeals affirmed in part, but reversed the trial court judment “as to its forfeiture order of the $1, 313 seized from Timothy's West [sic] Hedgewood residence . . . [and] as to its sentence on both the trafficking in drugs and cultivation or manufacture convictions, and . . . remanded [the case] for merger of those counts and the State's election of which count to proceed with on resentencing.” (Id. at 1054 (Ex. 29).) Petitioner appealed to the Ohio Supreme Court.[6] On May 8, 2013, the court declined jurisdiction. (Id. at 1070 (Ex. 33); 1110 (Ex. 35).)

         On April 11, 2013, petitioner filed an application to reopen his appeal under Ohio App. R. 26(B), claiming that “appellate counsel's inadequate performance compromised the appeal.” (Id. at 1208 (Ex. 51).) He raised several errors by his appellate counsel.[7] On September 25, 2013, the court of appeals denied the application to reopen. The court provided a reasoned opinion wherein it addressed the claim of ineffective assistance of counsel. (Id. at 1229-43 (Ex. 53).) The Ohio Supreme Court subsequently declined jurisdiction. (Id. at 1344 (Ex. 61).)

         Even before filing his Rule 26(B) application to reopen, on May 3, 2012, petitioner filed a pro se petition to vacate or set aside judgment of conviction or sentence, raising one claim of ineffective assistance of trial counsel. (Id. at 1111 (Ex. 36).) The trial court, after setting forth findings of fact and conclusions of law, denied the petition without a hearing on June 29, 2012 (id. at 1125 (Ex. 39)), and petitioner's appeal was unsuccessful (id. at 1162 (Ex. 45)).

         Petitioner then attempted to “amend” his denied petition to vacate or set aside judgment of conviction or sentence, raising the very same claim as in the original petition. (Id. at 1171 (Ex 46).) This did not succeed (see Id. at 1207 (Ex. 50)), and the record reflects no appeal from this denial.

         Over two years later, on October 23, 2014, petitioner filed a pro se motion for leave to file a delayed motion for a new trial. (Id. at 1409 (Ex. 71).)[8] The motion was denied by journal entry dated January 15, 2015. (Id. at 1461 (Ex. 73).) In the meantime, on December 29, 2014, petitioner filed a second, lengthier motion for leave to file a delayed motion for a new trial, raising the same three arguments. (Id. at 1462 (Ex. 74).) That was denied by journal entry dated January 23, 2015. (Id. at 1512 (Ex. 75).) Petitioner appealed both denials, arguing abuse of discretion on the part of the trial court. (Id. at 1520 (Ex. 77).) The appeals were consolidated on petitioner's motion (id. at 1529 (Ex. 78)), and the court of appeals found that the trial court was justified in summarily denying the motions for leave. (Id. at 1607 (Ex. 83).) On December 2, 2015, the Ohio Supreme Court denied petitioner's attempt to appeal. (Id. at 1648 (Ex. 86).)

         While these proceedings were going forward, on July 24, 2014, the trial court conducted a resentencing hearing pursuant to the remand order. (Id. at 2611 (Tr. Vol. 6).) Petitioner was represented by counsel at the hearing. The state elected to have petitioner sentenced on the trafficking conviction. (Id. at 2615-16.) The trial court imposed a mandatory eight-year sentence on that conviction, plus a twelve-month concurrent sentence for possession of criminal tools. (Id. 1345 (Ex. 62).) As the appellate court had also reversed a $1, 313 forfeiture, that amount was credited toward his mandatory $7, 500 fine. (Id.) Represented by counsel, petitioner filed a motion for leave to file a delayed appeal to challenge his mandatory fine. (Id. at 1352 (Ex. 64).) The appellate court reversed and remanded for the trial court to consider petitioner's claim of indigency. (Id. at 1401 (Ex. 70).) On remand, and after a hearing, the trial court waived the mandatory fine. (Id. at 1649 (Ex. 87).)

         The instant pro se petition, as amended with leave, raises six grounds for relief, as summarized in the R&R:

Ground One: Ineffective assistance of trial counsel in violation of the 5th, 6th, and 14th Amendment's [sic] to U.S. Constitution.
Supporting facts: Trial counsel failed to request separate trials, failed to object to state's introduction of co-defendant's statements made to police, and counsel's erroneous objection to prosecutor's proposed jury instructions to correct error.
Ground Two: Ineffective assistance of appellate counsel in violation of the 4th, 5th, 6th, and 14th Amendment's [sic] to U.S. Constitution.
Supporting facts: Appellate counsel failed to raise issues on direct appeal, that the state had violated Brady; failed to raise issues regarding the trial court's abuse of discretion when denying the motion to suppress without ordering a hearing, and failing to issue any findings of fact.
Ground Three: Ineffective assistance of appellate counsel in violation of the 4th, 5th, 6th, and 14th Amendment's [sic] to U.S. Constitution.
Supporting facts: Appellate counsel failed to raise an issue on direct appeal, that the state's evidence was insufficient to sustain a conviction for cultivation of marijuana and drug trafficking.
Ground Four: Ineffective assistance of appellate counsel in violation of the 4th, 5th, 6th, and 14th Amendment's [sic] to U.S. Constitution.
Supporting facts: Appellate counsel failed to raise an issue that, the trial court erred in it's [sic] forfeiture proceedings when forfeiting property owned by the petitioner that was not listed in the bill of particular's [sic], indictment, or rendered by a jury finding.
Ground Five: The trial court erred in ordering the forfeiture of the real property known as Permanent Parcel No: 004-10-005 and 004-10-006 in Cleveland, Ohio and erred by ordering the forfeiture of property that the value was disproportional to the severity of the offense.
Supporting facts: The forfeiture was obtained when the trial court violated the petitioner's 14th Amendment right to due process triggering violation of petitioner's 4th, 5th, 6th, 8th, and 14th Amendment's [sic] right to the United States Constitution.
Ground Six: The defendant was denied his fourteenth amendment right to due process when the trial court abused its discretion when it denied the defendant's motion for leave to file a delayed motion for new trial.
Supporting facts: In June of 2014, the petitioner discovered new exculpatory evidence that is material to this case. This newly discovered evidence was and is overwhelming proof that the state prosecutor's [sic] and witnesses repeatedly committed prosecutor and witness misconduct against the petitioner before during and after his trial . . . .

(R&R at 3024-25.)

         The R&R recommends denying the petition in its entirety.


          A. The Standard of Review

         Under 28 U.S.C. § 636(b)(1)(C), “[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Powell v. United States, 37 F.3d 1499 (Table), 1994 WL 532926, at *1 (6th Cir. Sept. 30, 1994) (“Any report and recommendation by a magistrate judge that is dispositive of a claim or defense of a party shall be subject to de novo review by the district court in light of specific objections filed by any party.”). “An ‘objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as that term is used in this context.” Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D. Mich. 2004); see also Fed. R. Civ. P. 72(b)(3) (“[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to”); LR 72.3(b) (any objecting party shall file “written objections which shall specifically identify the portions of the proposed findings, recommendations, or report to which objection is made and the basis for such objections.”). After review, the district judge “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         In conducting its de novo review in a habeas context, this Court must be mindful of the requirements of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), which provides in relevant part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(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). “Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment)).

         “Under the ‘contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the ‘unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

         Four of petitioner's six grounds for relief challenge the effectiveness of the representation of his trial counsel and his appellate counsel. A criminal defendant has a constitutional right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When an ineffectiveness claim is raised in a habeas petition, as opposed to on direct appeal, [9] the review is doubly deferential and “federal courts are to afford ‘both the state court and the defense attorney the benefit of the doubt.'” Woods v. Etherton, __ U.S. __, 136 S.Ct. 1149, 1151, 194 L.Ed.2d 333 (2016) (quoting Burt v. Titlow, 571 U.S.__, __, 134 S.Ct. 10, 13, 187 L.Ed.2d 348 (2013)).

The pivotal question [in the habeas context] is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of § 2254(d)(1), “an unreasonable application of federal law is different from an incorrect application of federal law.” A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.

Harrington, 562 U.S. at 101 (quoting Williams, 529 U.S. at 410); Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). Thus, to obtain habeas relief, the petitioner “must show that the state court's ruling on the [ineffectiveness] claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

         B. Pending Motions Relating to the Petition

         Before addressing petitioner's objections to the R&R, the Court will rule on four pending motions that relate to the petition and the record supporting it.

         1. Motions to Supplement (Doc. Nos. 73, 74) and to Reply (Doc. No. 79)

         Petitioner has filed two motions to supplement the record with alleged supporting authority, specifically, United States v. Brown, 828 F.3d 375 (6th Cir. 2016) and United States v. Harvey, 202 F.Supp.3d 771 (E.D. Mich. 2016). Petitioner claims that both of these cases stand for the proposition that, because the state trial court held no hearing on his motion to suppress a search warrant due to alleged lack of probable cause to obtain the warrant, he is entitled to reversal of his two convictions.

         Respondent has opposed both of these motions (Doc. Nos. 76, 77), and petitioner has filed a third motion seeking leave to file a reply to the opposition briefs.

         The Court grants petitioner's motions to supplement (Doc. Nos. 73, 74), but denies the motion for leave to reply (Doc. No. 79). The Court further notes that the clerk filed the reply, rather than attaching it as an exhibit to the motion. Therefore, Doc. No. 78, styled as a reply, is stricken from the record.

         Although the record is now supplemented with two additional cases, neither of them supports petitioner's argument because both are factually and ...

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