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Patton v. Warden, Warren Correctional Institution

United States District Court, S.D. Ohio, Western Division, Dayton

June 19, 2017

DAURIN PATTON, Petitioner,
v.
WARDEN, Warren Correctional Institution, Respondent.

          Thomas M. Rose, District Judge

          REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge

         This habeas corpus case under 28 U.S.C. § 2254 is before the Court for decision on the merits. Upon initial review of the Petition (ECF No. 1), the Court ordered the State to answer the Petition and set a date twenty-one days after the return was filed for Petitioner to file a reply/traverse (ECF No. 2). In compliance with the Order, the Attorney General has filed the state court record (“SCR”, ECF No. 6) and a Return of Writ (ECF No. 7). The time within which Petitioner was to have filed a reply has expired and no reply has been filed. The case is therefore ripe for decision.

         Procedural History

         Petitioner was indicted by the Lucas County Grand Jury on December 6, 2011, on one count of aggravated robbery (Ohio Revised Code § 2911.01(A)(1)), with a firearm specification (Count 1); and two counts of aggravated murder (Ohio Revised Code § 2903.01(A) and (F)), each with a firearm specification (Counts 2 and 3) (ECF No. 6, State Court Record Exhibit 1, PageID 33). The trial jury found him guilty as charged and sentenced to life imprisonment without parole (SCR, ECF No. 6, PageID 84).

         Patton appealed to the Ohio Sixth District Court of Appeals raising the following assignments of error:

1. The trial court erred by permitting the State to play the video of two alleged gang members standing with a semi-automatic “assault style” rifle. Patton's Constitutional right to Confront Witnesses was violated and it was improper hearsay.
2. The trial court erred and abused its discretion through the admission of the video, the Russian SKS 45 rifle, gang evidence and statements made by Serrano and her son were more prejudicial than probative. The video, rifle and other gang evidence was not relevant.
3. The State failed to properly authenticate the You Tube video in violation of Evid.R. 901(A). As such, Patton was denied his right to a fair trial.
4. The trial court erred by allowing the prosecutor to engage in improper impeachment of Patton's alibi witness including an unprosecuted event while she was in junior high school and an allegation in a police report, neither of which resulted in a conviction.
5. The verdicts were against the manifest weight of the evidence.
6. The trial court erred by not granting Patton's motion to suppress the out-of-court identifications made of Patton from photo arrays. The identifications were made contrary to Ohio statutory law and in violation of his right to due process of law.
7. Patton did not receive the effective assistance of counsel to which he has a Constitutional right.
8. If this Court agrees with certain assignments of error and holds in favor of Patton, then the state's case must fail due to insufficient evidence.
9. The prosecutor engaged in a pattern of misconduct that was intentionally designed to prejudice the jury in order to obtain a conviction at all costs.

(SCR, ECF No. 6, PageID 91.) The Sixth District affirmed the convictions and sentence. State v. Patton, 2015-Ohio-1866, 2015 Ohio App. LEXIS 1783 (6th Dist. May 15, 2015), appellate jurisdiction declined, 144 Ohio St.3d 1426 (2015). The instant habeas corpus petition followed on March 6, 2017 (ECF No. 1).

         Patton pleads the following grounds for relief:

GROUND ONE: Violation of the Confrontation clause and improper hearsay in violation of the United States Constitution Fifth Amendment.
Supporting Facts: The trial court erred by permitting the State to play a video with two alleged gang members with semi-automatic “assault style” rifles [SKS 47 rifle] and other gang violence not relevant to the case.
GROUND TWO: The trial court erred by allowing the prosecutor to engage in improper impeachment of Petitioner's alibi witness under Evid. R. 608(B), including an unprosecuted event while she was in junior high school and an allegation in a police report, neither of which resulted in a conviction, in violation of the United States Constitution.
Supporting Facts: The trial court allowed the prosecution to impeach Petitioner's alibi witness with allegation in a police report from high school which did not result in a conviction.
GROUND THREE: The jury verdicts were against the manifest weight of the evidence.
Supporting Facts: The jury verdicts did not support the evidence presented in this case.
GROUND FOUR: The trial court erred by not granting Petitioner's motion to suppress the out-of-court identification of Petitioner made from photo arrays, which were contrary to law and in violation of the due process clause of the United States Constitution.
Supporting Facts: The trial court violated Petitioner's right to a fair trial by allowing out-of-court photo identifications of Petitioner.

Id. at PageID 4, 6, 7, and 9.

         Analysis

         Grounds One: Confrontation Clause

         In his First Ground for Relief, Patton asserts the trial court violated his rights under the Confrontation Clause by permitting the prosecutor to play a video with two alleged gang members with semi-automatic rifles and other gang violence not relevant to the case.

         The Warden asserts Ground One is barred by Patton's procedural defaults in presenting this claim to the Ohio courts, both by making no contemporaneous objections in the trial court and then by failing to appeal to the Ohio Supreme Court from an adverse appellate ruling on this claim (Return, ECF No. 7, PageID 2609-13).

         The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000)(citation omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963). Coleman, 501 U.S. at 724.

         "A claim may become procedurally defaulted in two ways." Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a claim is procedurally defaulted where state-court remedies have been exhausted within the meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is procedurally defaulted where the petitioner failed to exhaust state court remedies, and the remedies are no longer available at the time the federal petition is filed because of a state procedural rule. Id.

         Failure to raise a constitutional issue at all on direct appeal is subject to the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72 (1977). Murray v. Carrier, 477 U.S. at 485; Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied, 474 U.S. 831 (1985). Failure to present an issue to the state supreme court on discretionary review constitutes procedural default. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999)(citations omitted).

         The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a habeas claim is precluded by procedural default. Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).

First the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule. . . . .
Second, the court must decide whether the state courts actually enforced the state procedural sanction, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under Sykes that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.

Maupin, 785 F.2d at 138; accord, Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).

         Ohio has a relevant procedural rule that requires making an objection to trial court error at the time it occurs. State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see also State v. Mason, 82 Ohio St.3d 144, 162 (1998). The Sixth Circuit has repeatedly held this rule is an adequate and independent state ground for decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012), citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir. 2010); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), citing Hinkle v. Randle, 271 F.3d 239, 244 (6th Cir. 2001); Scott v. Mitchell, 209 F.3d 854 (6th Cir. 2000), citing Engle v. Isaac, 456 U.S. 107, 124-29 (1982). See also Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000); Goodwin v. Johnson, 632 F.3d 301, 315 (6th Cir. 2011); Smith v. Bradshaw, 591 F.3d 517, 522 (6th Cir.), cert. denied, 562 U.S. 876 (2010).

         The Sixth District Court of Appeals actually enforced this rule against Petitioner. It held:

[*P36] Under assignment of error No 1, appellant argues that the trial court erred by permitting the state to play a video of two alleged gang members with a semi-automatic rifle at trial. Appellant contends that admission of the video violated his Sixth Amendment right to confront ...

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