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Ward v. Hooks

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

September 1, 2017

DEVINE D. WARD, Petitioner,
v.
MARK HOOKS, Warden, Ross Correctional Institution, Respondent.

          Thomas M. Rose District Judge

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge

         This is a habeas corpus action brought pro se by Petitioner Devine D. Ward to obtain relief from his convictions in the Montgomery County Common Pleas Court on two counts of aggravated robbery and his consequent sentence to twelve years imprisonment, presently being served in Respondent's custody.

         The case is before the Court for initial review pursuant to Rule 4 of the Rules Governing § 2254 Cases which provides in pertinent part: “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.”

         Petitioner pleads the following grounds for relief:

Ground One: Petitioner is being held in violation of his right to effective assistance of counsel guaranteed by the 5th, 6th, and 14thAmendments to the U.S. Constitution.
Supporting Facts: Counsel was ineffective for 1) failing to challenge venireman Clapp, either for cause or peremptorily; 2) failing to renew his Ohio Crim. R. 14 motion for severance, and 3) failing to present a complete defense.
Ground Two: Petitioner is being held in violation of his 5th, 6th, and 14th Amendment right to testify in his own defense and in violation of due process and equal protection of the law.
Supporting Facts: The joinder of offenses deprived petitioner of his right to testify in his own behalf.
Ground Three: Petitioner is being held in violation of his 6thAmendment right to confront the witnesses against him.
Supporting Facts: The State introduced into evidence a 911 call from Erron Daniels, the alleged victim of the Nov. 17, 2014 robbery, who did not testify at trial.
Ground Four: Petitioner is being held in violation of his right to the effective assistance of counsel on appeal guaranteed by the 5th, 6th and 14th Amendments to the U.S. Constitution.
Supporting Facts: Appellate counsel was ineffective for failing to argue: 1. that trial counsel was ineffective for: a. informing the jury that Petitioner was guilty, b. failing to request a dismissal of count two when Erron Daniels failed to show up to court or for failing to ask for a continuance, c. failing to call Tritania Knight as an alibi witness, d. failing to request dismissal after the state's witnesses perjured themselves, e. failing to impeach several witnesses with prior inconsistent statements; 2. failing to argue petitioner's right to confrontation was violated; 3. failing to argue prosecutorial misconduct based upon the prosecutor's knowing use of perjury.

(Petition, ECF No. 3.)

         Procedural History

         Petitioner Ward was arrested for two armed robberies which occurred on consecutive days in November 2014. State v. Ward, 2016-Ohio-5354, ¶ 3, 2016 Ohio App. LEXIS 3218 (2nd Dist. Aug. 12, 2016), motion for delayed appeal denied, 147 Ohio St.3d 1473 (2016). He was indicted on two counts of aggravated robbery with firearm specifications and convicted by a jury on all counts. The trial court imposed a six-year term for the first robbery, a concurrent four-year term for the second robbery, and two consecutive three-year terms for the firearm specifications. Id. at ¶ 7. Ward took a direct appeal to the Ohio Second District Court of Appeals which affirmed the convictions and sentence. Id. As noted, the Ohio Supreme Court denied a motion for delayed appeal after no notice of appeal was filed by the due date, forty-five days after judgment in the court of appeals. Ward filed a motion to reopen his direct appeal under Ohio App. R. 26(B) to present claims of ineffective assistance of appellate counsel which was denied as untimely. State v. Ward, Case No. 26773 (2nd Dist. Mar. 17, 2017)(unreported; copy available at mcclerkofcourts.org), appellate jurisdiction declined 149 Ohio St.3d 1408 (2017). Ward avers he placed his Petition for Writ of Habeas Corpus in the prison mailing system on August 4, 2017, but on the same page he says he did not sign the Petition until August 24, 2017 (ECF No. 3, PageID 18).

         Analysis

         Ground One: Ineffective Assistance of Trial Counsel

         In his First Ground for Relief, Ward claims his trial attorney provided ineffective assistance of trial counsel when he did not challenge venireman Clapp for cause or peremptorily, when he did not renew the motion to severe the two offenses, and when he did not present a “complete defense.”

         Ward's First Assignment of Error on direct appeal raised the claim of ineffective assistance of trial counsel regarding Juror Clapp. The Second District decided the claim as follows:

[*P8] In his first assignment of error, Ward contends his trial counsel provided ineffective assistance by failing to challenge a particular juror either for cause or peremptorily. The juror in question stated during voir dire that he worked as a delivery driver for a beer distributor and knew people in his profession who had been robbed at gunpoint. He agreed that the nature of Ward's case gave him "some pause for concern." He believed the fact that Ward's case involved the robbery of delivery drivers would make it difficult for him to sit as a juror. When asked whether he could set aside his feelings and judge the case solely based on the evidence, he responded: "I would like to think that I would, but I'm not sure." The juror explained that he had observed the emotional impact being robbed had taken on other drivers. When asked whether that would affect his ability to sit as a juror, he responded:
I would like to say I would be fair. But I'm saying past experiences and sympathizing with the people and the stuff that's happened to them, knowing what happened to them even though there wasn't a physical thing, mentally and what it's done to their lives up until now, it makes it really hard to, you know, sit on one-and witness going through this again. You know what I'm saying? You know, there's-it's-just for example, there was an older lady that was pistol whipped to give money away and was severely injured and had to spend a year off work. And I was really close to her. And I tell you what, if I'd have got my chance to get a hand on that guy, I would have lobbied some justice. You know?
So I'm just saying, it's-being-you know, I'm sympathetic to the carry out people that it's happened to. And through thirty-five years I've had a number of occasions to be close to people that it's happened to. And like I said, just having a-I'm-actually, in my line of work I've had a pistol pointed in front of me. I know the feeling, you know. * * *

(Tr. at 169-170).

[*P9] To prevail on an ineffective-assistance claim, a defendant must show deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must show that trial counsel's representation fell below an objective standard of reasonableness. Id. Prejudice exists and a reversal is warranted only where a defendant shows a reasonable probability that but for counsel's deficient performance the result of the proceeding would have been different. State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).
[*P10] We find no ineffective assistance of counsel here. We cannot know, of course, why defense counsel failed to challenge the juror at issue, either for cause or through a peremptory challenge. But even if we assume arguendo that defense counsel provided deficient representation by not seeking to have the juror stricken from the pool, Ward cannot demonstrate prejudice. HN2 "When a defendant bases an ineffective-assistance claim on an assertion that his counsel allowed the impanelment of a biased juror, the defendant 'must show that the juror was actually biased against him.'" (Citations omitted.) State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 67.
[*P11] In this case, the juror in question never stated that he could not be fair or that he was actually biased against Ward personally, as is required to establish prejudice. State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 213. The juror expressed unease and conveyed his belief that the nature of the cause would make it difficult for him to be objective. This is not the same as admitting or acknowledging a personal [**8] bias against Ward, who the juror acknowledged remained innocent in his eyes. We note too that HN3 the use of peremptory challenges "is inherently subjective and intuitive, " meaning that the record rarely will reveal ...

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