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Howard v. Warden, London Correctional Institution

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

June 21, 2017

EVERETTE E. HOWARD, Petitioner,
v.
WARDEN, London Correctional Institution Respondent.

          Thomas M. Rose District Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This habeas corpus case is before the Court on Petitioner's Objections (ECF No. 18) to the Magistrate Judge's Report and Recommendations on the merits (“Report, ” ECF No. 13). Judge Rose has recommitted the case for reconsideration in light of the Objections (ECF No. 19) and the Warden has responded to the Objections as permitted by Fed.R.Civ.P. 72 (ECF No. 20).

         The Petition pleads four Grounds for Relief. In his Objections, Petitioner repeats the heading “Objection” thirteen times (ECF No. 18, PageID, 1196, 1198, 1199 (twice), 1200 (twice), 1201, 1203, 1208, 1212, 1214 (twice), and 1217). Except for the last of these, which is labeled as being about Ground Three, all the other objections appear to relate to Ground One.

         Ground One:

         The First Ground for Relief reads:

Ground One: The trial court erred in allowing the prosecution to continuously lead witnesses through improper comment and as a result, Howard did not receive a fair trial.
Supporting Facts: The Prosecutor's use of leading questions and providing details and answers to the questions asked to the witness, because the vague inconclusiveness testimony of the witnesses, force fed testimony. Trial counsel failed to object to State's repeated leading. Trial counsel failed to move for mistrial. Appellate counsel failed to argue trial counsel faile[d] to object to State's continuous use of leading questions and failed to move for mistrial.

(Petition, ECF No. 1.)

         The Report analyzed this Ground for Relief as being about trial court error in permitting leading questions (ECF No. 13, PageID 1177-83). It concluded that claim was procedurally defaulted because, although all evidence needed to adjudicate the claim was on the record, the claim had not been raised on direct appeal and the Second District Court of Appeals found it was barred by Ohio's criminal res judicata doctrine when Howard tried to raise it in his 26(B) application. Id.

         Howard objects that Ground One is really about prosecutorial misconduct in that the prosecutor continued to ask damaging leading questions after the trial judge made a ruling (under Ohio R. Evid. 611) to prohibit such questions. This argument is repeated in several different ways throughout the first twenty-five pages of the Objections.

         On its face, Ground One complains of trial court error (“the trial court erred”), prosecutorial misconduct, ineffective assistance of trial counsel, and ineffective assistance of appellate counsel. Those are different constitutional theories of relief. The first three of them are capable of being raised on direct appeal, but none of them were raised on direct appeal. Howard's two assignments of error on direct appeal were “The Appellant's convictions were against the manifest weight of the evidence” and “The evidence was insufficient to support Appellant's convictions.” (Appellant's Brief, State Court Record, ECF No. 4, PageID 63.) There is no mention of trial court error in allowing any leading questions. Nor is there any mention of prosecutorial misconduct of ineffective assistance of trial counsel.

         A claim of ineffective assistance of appellate counsel can only be raised in one way in the Ohio courts, to wit, by an application to reopen the direct appeal under Ohio R. App. P. 26(B). Tate v. Murnahan, 63 Ohio St.3d 60 (1992). Conversely, ineffective assistance of appellate counsel is the only kind of claim that can be raised in a 26(B) Application. Because claims of ineffective assistance of appellate counsel are based on an analytically distinct legal theory from the underlying claims, the 26(B) application does not preserve the underlying claims from default. Scott v. Houk, 760 F.3d 497, 505 (6th Cir. 2014); Davie v. Mitchell, 547 F.3d 297 (6thCir. 2008)(Rogers, J.), and Garner v. Mitchell, 502 F.3d 394 (6th Cir. 2007)(Moore, J.), both citing White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005); Moore v. Mitchell, 531 F.Supp.2d 845, 862 (S.D. Ohio 2008)(Dlott, J.); see also Bailey v. Nagle, 172 F.3d 1299, 1309 n. 8 (11th Cir. 1999); and Levasseur v. Pepe, 70 F.3d 187, 191-92 (1st Cir. 1995).

         In his 26(B) Application, Howard asserted he received ineffective assistance of appellate counsel because his direct appeal attorney did not include the following assignment of error related to Ground One: “The trial court erred in allowing the prosecution to continuously lead witnesses through improper comment and as a result, Howard received an unfair trial.” (26(B) Application, State Court Record, ECF No. 4, at PageID 147.) The only federal constitutional question this claim presented to the Second ...


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