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Smith v. Bunting

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

November 3, 2017




          Norah McCann King United States Magistrate Judge.

         Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is now before the Court on the Petition (Doc. 1), the Return of Writ (Doc. 26), Petitioner's Traverse (Doc. 29), and the exhibits of the parties.[1] For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

         Petitioner's request for a stay is DENIED.

         Facts and Procedural History

         The Sixth Circuit summarized the procedural history of the case as follows:

In 2000, a jury convicted Smith of two counts of aggravated burglary, Ohio Rev. Code § 2911.11(A)(1), (2); three counts of aggravated robbery, Ohio Rev. Code § 2911.01(A)(1), (3); two counts of kidnapping, Ohio Rev. Code § 2905.01(A); and one count of theft, Ohio Rev. Code § 2913.02. All counts except theft included firearm specifications. Smith was sentenced to a total term of sixty-one years of imprisonment, to be served consecutively to a six-year term of imprisonment for the firearm specifications. The Ohio Court of Appeals affirmed. State v. Smith, No. 00-CA-63, 2001 WL 1913854 (Ohio Ct. App. Dec. 10, 2001).
Smith then filed an application to reopen his appeal, alleging ineffective assistance of counsel. The Ohio Court of appeals denied the application, and the Ohio Supreme Court denied leave to appeal. State v. Smith, 96 Ohio St.3d 1515 (Ohio 2002).
In 2003, Smith filed a 2254 petition in the district court, claiming that he was denied his rights to due process and a fair trial when the trial court overruled his motion to suppress unfairly suggestive witness identification testimony. Smith v. Hurley, No. 2:03-cv-580 (S.D. Ohio Apr. 19, 2004). The district court denied the petition on the merits. Id.
Smith then, in 2008, filed a petition to vacate or set aside his judgment, which the trial court denied as untimely. In 2013, Smith filed a motion to vacate or void his sentence, which the trial court denied as untimely and on res judicata grounds. See State v. Smith, No. 14-CA-18, 2014 WL 5365511, at *1 (Ohio Ct. App. Oct. 16, 2014). The Ohio Court of Appeals affirmed all issues raised on appeal with the exception of Smith's third assignment of error, in which Smith argued that the trial court failed to inform him of post-release control. Id. at *4. The Ohio Court of Appeals sustained this assignment of error and remanded the case to the trial court “for the limited purpose of holding a sentencing hearing to address [Smith] in regards to his post[-]release control sanction.” Id. at *4. In July 2015, on remand, the trial court orally notified Smith of post-release control and re-imposed the sentence that Smith had received in 2000. The Ohio Court of Appeals affirmed, State v. Blaine-Smith, No. 15-CA-46, 2016 WL 3608634 (Ohio Ct. App. July 5, 2016), and the Ohio Supreme Court denied leave to appeal, State v. Smith, 147 Ohio st.3d 1475 (Ohio 2016).

In re: Ralph Blaine Smith, No. 16-4699 (6th Cir. May 11, 2017).

         The Petition presently before this Court asserts that Petitioner's conviction was based on a constitutionally improper and unreliable witness identification (claim one); that the trial court improperly imposed maximum consecutive terms of incarceration and sentenced him on allied offenses of similar import (claims two and three); that he was denied the effective assistance of trial counsel (claim four); that he was denied his right of allocution at the sentencing hearing (claim five); that he was convicted in violation of the Double Jeopardy Clause (claim six); and that he was denied the effective assistance of counsel at his re-sentencing hearing (claim seven). Respondent contends that Petitioner's claims are procedurally defaulted or without merit.

         Motion to Stay Proceedings

         Petitioner requests a stay of proceedings to permit him to file a motion for a new trial in the trial court based on newly discovered evidence. Motion to Hold Petition in Abeyance (Doc. 2); Traverse (Doc. 29, PageID# 1163-64). Petitioner asserts that evidence uncovered by a private investigator, and which purportedly was withheld by the prosecutor, establishes Petitioner's actual innocence and will have a substantial impact on the witness identification testimony. However, Petitioner has not actually submitted this evidence. Moreover, although Petitioner suggests that he intends to file a motion for a new trial, he does not explain why he has not, to date, done so. See Rhines v. Weber, 544 U.S. 269, 273-78 (2005) (a federal district court may stay a habeas corpus petition containing both exhausted and unexhausted claims, where a petitioner has “good cause” for failing to exhaust his claims, where his claims are potentially meritorious, and where there is no indication that he engaged in “intentionally dilatory litigation tactics.”) Under these circumstances, Petitioner's requests for a stay, Motion to Hold Petition in Abeyance (Doc. 2); Traverse (Doc. 29, PageID# 1163-64), are DENIED.

         Procedural Default

         Respondent contends that Petitioner has procedurally defaulted at least some of his claims. Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982 (per curiam ) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has failed to exhaust his claims but would find those claims barred if later presented to the state courts, “there is a procedural default for purposes of federal habeas. . . .” Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).

         The term “procedural default” has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. This “requires the petitioner to present ‘the same claim under the same theory' to the state courts before raising it on federal habeas review.” Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of “fairly presenting” a claim to the state courts is that a habeas petitioner must do so in a way that gives the state courts a fair opportunity to rule on the federal law claims being asserted. This means that if the claims are not presented to the state courts in the manner in which state law requires, and the state courts therefore do not decide the claims on their merits, neither may a federal court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), “contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure” also cannot be resolved on their merits in a federal habeas case - that is, they are “procedurally defaulted.”

         In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is waived by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “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.” Id. Second, the Court must determine whether the state courts actually enforced the state procedural rule. Id. Third, it must be decided whether the state procedural rule is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the court determines that a state procedural requirement was not met, and that the rule is an adequate and independent state ground, then the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This “cause and prejudice” analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir.1985).

         Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner must show that “some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Constitutionally ineffective counsel may constitute cause sufficient to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, however, an ineffective assistance of counsel claim generally must “‘be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.'” Id. at 452 (quoting Murray, 477 U.S. at 479). That is because, before counsel's ineffectiveness can constitute cause, “that ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore must be both exhausted and not procedurally defaulted.” Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to “satisfy the ‘cause and prejudice' standard with respect to the ineffective-assistance claim itself.” Edwards, 529 U.S. at 450-51.

         If, after considering all four factors of the Maupin test, a court concludes that a procedural default has occurred, that court must not consider the merits of the procedurally defaulted claim unless “review is needed to prevent a fundamental miscarriage of justice, such as when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent.” Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray, 477 U.S. at 495-96).

         In claim two, Petitioner asserts that the trial court improperly imposed maximum consecutive sentences. In claim three, Petitioner asserts that his convictions constitute allied offenses of similar import. In claim four, Petitioner asserts, inter alia, that he was denied the effective assistance of counsel because his attorney failed to investigate an alibi defense. See Petitioner's Traverse (Doc. 29, PageID# 1158). Petitioner raised all of these issues on direct appeal; however, he failed to raise these claims in his appeal to the Ohio Supreme Court. See Memorandum in Support of Jurisdiction (Doc. 26-1, PageID# 437).

         In claim four, Petitioner asserts that he was denied the effective assistance of trial counsel because his attorney failed to object to improper witness testimony and identification procedures, failed to object to the imposition of maximum consecutive sentences, and failed to object to the imposition of sentences on allied offenses of similar import in violation of the Double Jeopardy ...

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