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Johnson v. Warden, Ross Correctional Institution

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

January 11, 2018

MICHAEL P. JOHNSON, Petitioner,
v.
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

          JUDGE MICHAEL H. WATSON

          REPORT AND RECOMMENDATION AND ORDER

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties including the supplemental documents submitted by Petitioner. For the reasons that follow, the Magistrate Judge RECOMMENDS that the petition be DENIED and this action be DISMISSED.

         I. FACTS AND PROCEDURAL HISTORY

         A. Facts, Trial, and Conviction

         The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:

On August 9, 2012, appellant and more than 40 other co-defendants were charged in a 95-count indictment in common pleas case No. 12CR-3961. Under the indictment, appellant was charged with one count of engaging in a pattern of corrupt activity, in violation of R.C. 2923.32, and 19 counts of aggravated funding of drug trafficking, in violation of R.C. 2925.05. On October 16, 2013, appellant was indicted in common pleas case No. 13CR-5503 on 8 counts of aggravated funding of drug trafficking, in violation of R.C. 2925.05. The two cases were consolidated for trial.
On August 14, 2012, attorney Javier Armengau entered an appearance on behalf of appellant. On August 24, 2012, plaintiff-appellee, State of Ohio, filed a motion to disqualify counsel on conflict of interest grounds, arguing that Armengau had previously represented a confidential informant utilized by law enforcement personnel during the course of the investigation in the instant actions. On September 20, 2012, appellant filed a memorandum contra the state's motion to disqualify counsel. The parties subsequently submitted affidavits to the trial court under seal regarding the anticipated testimony of the confidential informant (hereafter "the CI"). The trial court, by entry filed November 19, 2012, granted the state's motion to disqualify counsel. Appellant filed an interlocutory appeal with this court from the trial court's entry granting the motion to disqualify. In State v. Johnson, 10th Dist. No. 12AP-1067, 2013-Ohio-1682, 2013 WL 1791065, this court affirmed the trial court's decision.
The matter came for trial before a jury on October 22, 2013. Columbus Police Detective David M. Allen is a member of the department's tactical division squad, with prior experience investigating pill trafficking rings. Detective Allen testified that such rings typically involve a "three-tiered organization, " in which two or three individuals at the top tier act as "organizers" who "fund the money, fund the trips." (Tr. 19.) The organizers supply transportation money, as well as pay for the prescriptions. The detective identified the second tier as comprised of "lieutenants, " or persons that the head of an organization "will trust with the money." (Tr. 19-20.) These individuals are also trusted to "collect all the pills once they've been filled at a pharmacy." (Tr. 21.) The final tier of the organization is composed of the individuals who obtain and fill prescriptions, identified by the detective as "abusers"; they tend to be "older, " and may have injuries that are somewhat legitimate or "on the fringe." (Tr. 21.)
Detective Allen identified the most valuable drug on the street as 30 milligram Oxycodone pills. Other valuable drugs include 15 milligram Oxycodone pills and Xanax pills, and all of these medications are "highly addictive." (Tr. 22.) According to the detective, Florida is "the hot bed where most of these pills are coming out of." (Tr. 25.)
Detective Allen participated in the investigation leading to the arrest of appellant. During the course of that investigation, detectives conducted surveillance of "multiple individuals" they believed were involved in a pill trafficking operation. (Tr. 27.) The surveillance included monitoring the location of suspects through the use of "[p]ings on cell phones." (Tr. 29.) Among the individuals targeted were Eric MacDonald, Robert Muncy, Richard Muncy, Frances Smith, and Stephanie Kelley. Detectives also conducted surveillance of a business, Creative Tattoos, located on South High Street.
On December 29, 2011, detectives received information that Kelley, Smith, Richard, and Robert were arriving at Port Columbus International Airport on a flight from Ft. Lauderdale, Florida. Investigators observed the four individuals leave the Columbus airport in a vehicle and travel to Shelly Avenue, stopping at the residence of Smith and Robert. Richard and Kelley then drove to Kelley's residence on Lewis Avenue; later, Richard drove a Plymouth Neon to appellant's residence, located at 1075 Lavender Lane. Detective Allen observed Richard standing with appellant "in the garage." (Tr. 34.) Richard then departed appellant's residence in a different vehicle, a red Ford Taurus, returning to Kelley's residence.
The next day, these same four individuals drove to Fairfax, Virginia. According to the detective, "they were visiting pharmacies based on the ping chart." (Tr. 36.) Pharmacy records indicated that Richard, Kelley, and Smith filled prescriptions at a Virginia CVS pharmacy on December 30, 2011. Robert and Smith returned to the Fairfax, Virginia area on January 6, 2012. Detectives in Virginia learned that these individuals "visited pharmacies and * * * filled prescriptions that were out of Florida." (Tr. 37.)
On January 26 and 27, 2012, these four individuals took a round-trip flight from Columbus to Ft. Lauderdale, Florida. Law enforcement officials in Florida followed them to the All Family Medical Center, located in North Ft. Lauderdale. Upon returning to Columbus, they then traveled to Fairfax, Virginia, visiting various pharmacies. At trial, the state introduced copies of prescription records from those pharmacies, including prescriptions for Roxicodone filled in the names of Richard Muncy and Frances Smith.
During the investigation, detectives obtained statements by Robert Sparks and MacDonald explaining the structure of the organization. Sparks and MacDonald also provided the investigators with names of other individuals. Detective Allen testified that police surveillance and pharmacy records corroborated information provided by Sparks and MacDonald.
On February 24, 2012, at 11:20 p.m., Columbus Police Detective Brian Key and other law enforcement officers executed a search warrant for appellant's residence on Lavender Lane. At trial, the state introduced photographs taken of the house at the time of the search. One of the photographs depicted $100 bills, wrapped with a rubber band, found in a drawer located in the master bedroom. Police officers recovered a total of $3, 580 cash from the residence, as well as empty pill bottles and bottles containing pills. The officers found a receipt for the purchase of a "multifunction portable sweep." (Tr. 132.) According to Detective Key, the device is used to determine whether a vehicle has "been GPS'd." (Tr. 133.) The officers also located a letter bearing MacDonald's name, and a Budget car rental agreement in the name of Nancy Salyers.
Detective Key identified other exhibits, including a receipt for a Florida hotel room in the name of Todd Salyers, appellant's nephew, reflecting a cash payment in the amount of $415.39, and bond paperwork for Todd from Manassas Park, Virginia. The officers found labels from pill bottles for Oxycodone in 30 milligram doses in the name of Todd, as well as pharmacy receipts for Todd from Florida pharmacies indicating cash purchases.
During the search of appellant's residence, officers located business ledgers for Creative Tattoos listing appellant as the owner. At trial, the parties stipulated that appellant and Todd "were directly involved and ran the day-to-day operations of Creative Tattoos on South High Street." (Tr. 159.) The parties further stipulated that Vickie Johnson "was the named owner and was aware of said operations." (Tr. 159-60.)
Robert, age 37, is married to Smith; Robert has been an acquaintance and friend of appellant since grade school. In 2012, appellant approached Robert about making trips to Florida "to obtain prescriptions." (Tr. 164.) Appellant and Robert reached an agreement for appellant to pay the costs of transportation, hotel, food, physician office calls, and MRIs pertaining to Robert's Florida trips. The purpose of obtaining an MRI, costing approximately $300, was to "receive medication from pain management." (Tr. 165.) On a typical visit, a physician would prescribe for Robert between 160 to 210 Oxycodone 30 milligram pills. Robert also received prescriptions for Oxycodone 15 milligram pills, as well as Xanax and Soma pills. Robert paid cash for the office calls and prescriptions; the cost of each office call was between $300 to $350.
Robert subsequently obtained Florida identification, allowing for a "[c]heaper office call, easier to fill them in there." (Tr. 169.) Robert would usually travel to Florida with four to six other individuals. MacDonald would "carry the money, " passing it out to other individuals to cover expenses. (Tr. 169.) The cost per person to obtain prescriptions from clinics and physicians in Florida was "[approximately 1, 500 to $2, 000 round trip." (Tr. 166.) After obtaining prescriptions, Robert and the others would check local phone books to find pharmacies in the area, or "doctors would give you lists of pharmacies in the Florida area or the county." (Tr. 170.) During the trip back to Columbus, MacDonald gathered all of the Oxycodone "30s, " and the other individuals "kept everything else" in return for acquiring the prescriptions. (Tr. 172.)
In 2010, the pharmacy price for Oxycodone 30 milligrams was approximately $2 per pill, while the street value was $20 per pill. In 2012, the pharmacy price of Oxycodone 30 milligrams was between $3 and $4 per pill, while the street value was between $25 and $30 per pill. Robert and the others eventually looked to other states, including Virginia, to fill the prescriptions at cheaper prices.
On his first trip to Florida, Robert traveled with his brother, Richard, along with MacDonald and Dalton Chapman, an acquaintance of appellant. Robert testified that appellant provided the money for that trip, and they traveled in a blue Chevy Suburban driven by Chapman; MacDonald carried the cash for everyone on the trip. After obtaining the prescriptions and returning to Columbus, Robert and the others drove to Creative Tattoos on South High Street. MacDonald collected the Oxycodone 30 milligram pills from each of the men; Robert was permitted to keep the remaining prescription drugs he had obtained as his payment.
According to Robert, subsequent trips were financed in the same manner. Robert described one trip in which he arrived at Creative Tattoos prior to leaving for Virginia. Appellant had a vehicle waiting for Robert at the tattoo shop; underneath the floor mat, Robert found car keys as well as $1, 600 in cash, wrapped in a rubber band. Robert and his wife traveled to Virginia, where Robert filled the prescriptions. Upon returning, Robert parked the vehicle in front of the tattoo shop, leaving the prescriptions underneath the front seat for appellant.
On three to five occasions, Robert and his brother, Richard, drove to appellant's residence on Lavender Lane to deliver approximately 600 to 800 Oxycodone 30 milligram pills to appellant. The men would enter appellant's residence through the garage. Robert also observed other individuals turn Oxycodone pills over to Richard to deliver to appellant.
Later, Robert and others began taking flights to Florida instead of driving. Upon returning from Florida, Robert would drive to Virginia to fill the prescriptions and then deliver the Oxycodone 30 milligram pills to appellant. Robert sold some of the other prescriptions he obtained from Virginia. Robert testified that he was addicted to pain medication and, on approximately three to five occasions, he purchased Oxycodone 30 milligram pills back from appellant at the tattoo shop.
On February 24, 2012, law enforcement officers executed a number of search warrants in Franklin County. Robert subsequently signed a proffer letter and spoke with prosecutors and detectives about his knowledge of the organization, entering into an agreement with the state to testify. He later entered a guilty plea to one count of engaging in a pattern of corrupt activity, and eight counts of aggravated trafficking in drugs.
At trial, the state introduced patient history forms listing the names of patients, their prescribing physicians, the prescriptions obtained, and the particular pharmacy where a prescription was filled. Robert testified as to approximately 12 patient visits he made during trips to Florida from September 2010 to July 2011. Other individuals listed on the patient history forms included MacDonald, Richard, and Terry Maxwell.
On direct examination, MacDonald admitted to several prior convictions, including for drug trafficking, and he also acknowledged being addicted to prescription drugs. In September 2009, appellant and Chapman contacted MacDonald to ask him if he would be interested in making money traveling to Florida to obtain pills. MacDonald agreed and, over the next two years, he made approximately 80 to 100 trips to Florida, traveling with various other individuals including Richard, Robert, Maxwell, Mark Keller, Kelley, Christine Perry, Benjamin Cline and Christopher Jordan.
On a typical trip, MacDonald would visit a doctor, "hand over a couple hundred bucks. They give you a paper, tells you where to go to get the MRI. You go get the MRI. You go back to the doctor. You sit and wait. And you see the doctor * * * and they give you the script." (Tr. 259.)
On MacDonald's first trip to Florida, Chapman paid him $800. MacDonald obtained money for subsequent trips from appellant at appellant's residence. MacDonald would "get with [appellant], and we would figure out who you would take down." (Tr. 262.) According to MacDonald, "[i]t was [appellant's] payment, but I would arrange it." (Tr. 264.) MacDonald and the others would obtain Oxycodone, Xanax, and Soma pills. The individuals who went on the trips could either receive money or pills as payment, but they were required to turn over the Oxycodone 30 milligram pills. The amount of money MacDonald received from appellant depended upon the number of individuals making the trip. Appellant would provide MacDonald with "$2, 000 per person." (Tr. 264.) During these trips, appellant would "call and check * * * and see what's going on, ask me what's going on through the trip." (Tr. 265.)
Appellant told MacDonald to provide Sparks "any information that he needed for down there, like doctors, any phone numbers, addresses, * * * anything like that." (Tr. 266.) MacDonald also received money from appellant to rent vehicles for the trips to Florida. Upon returning to Columbus from Florida, MacDonald would phone appellant, "let him know I was back. So I would have to collect everybody's 30s, which was payment for the money, and drop everyone off and then drop them off to him." (Tr. 270.) MacDonald took the pills to appellant's house, meeting appellant in the garage. MacDonald eventually began filling prescriptions in Virginia because it was "a lot cheaper than Florida." (Tr. 271.)
MacDonald testified that he took trips to Florida to obtain prescriptions on the following dates: June 7, July 2, August 6, September 2, September 9, September 30, November 9-12, December 8, 2010, January 18-20, February 2, February 18-23, February 24-March 3, March 16-18, March 26-31, April 13-19, April 27-29, May 9-13, June 6-8, June 10, June 30-July 2, July 7-8, August 12, and September 9, 2011. According to MacDonald, appellant gave him money for all of the above trips, and MacDonald delivered pills back to appellant.
On September 10, 2011, police officers in Virginia arrested MacDonald, as well as Perry, Maxwell, Keller, and Kelley. The next day, MacDonald attempted to contact appellant for assistance. MacDonald later entered into a guilty plea to one count of engaging in a pattern of corrupt activity and three counts of attempted aggravated trafficking in drugs.
During 2009 and 2010, Carter Moore was a frequent visitor to Creative Tattoos. Carter observed appellant and Eric Sullivan "talk a lot and sometimes switch money" between them. (Tr. 339.) Appellant informed Carter that he made money from other individuals and from prescription drugs. On one occasion, appellant asked Carter if he "wanted to go out of town and make some money." (Tr. 339.) Appellant offered him money for the trip, but Carter declined because he was employed at the time. Carter subsequently entered a guilty plea to one count of aggravated trafficking in drugs.
Stephen Anderson, age 32, first met appellant in 2010. At that time, appellant "started funding a little activity for me down in Florida." (Tr. 359.) Anderson also began working at a construction company, Nitro Restoration, run by appellant and Sullivan. Anderson took trips to Florida for appellant; on those trips, Anderson would "go down there and get what we had to get and bring it back and give him what was supposed to go to him and keep what was supposed to go to me." (Tr. 360.) Anderson was permitted to keep "all the 15s and all the Xanax and they got all the 30s" (Tr. 361.)
Appellant and Sullivan were involved in coordinating the trips to Florida during this time. The total cost of a trip for five individuals was between $8, 000 to $10, 000. On one trip, Sullivan told Anderson that appellant wanted Anderson to teach appellant's nephew how to obtain prescription drugs in Florida. Appellant funded Anderson's trips to Florida through Sullivan, who acted as a middleman. Appellant paid for rental cars for some of the trips to Florida. Upon returning from Florida, Anderson would collect the pills. Anderson "usually kept the Xanaxes" for himself, and he turned over the remainder of the pills to Sullivan and appellant. (Tr. 372.)
On several occasions, Anderson had conversations with appellant about obtaining money for trips. Anderson spent time in prison from December 2010 until July 2011. Sullivan funded some trips in 2010, but appellant funded all the trips after Anderson's release from prison in 2011. Anderson stopped making trips in 2012 because of police activity. Anderson testified that he made trips funded by appellant "pretty much at least once every month" beginning in August 2010 and ending in January 2012. (Tr. 385.) Anderson subsequently entered a guilty plea to one count of engaging in a pattern of corrupt activity, and five counts of aggravated trafficking in drugs.
Maxwell has known appellant for 25 years. Appellant "fronted" Maxwell some Oxycodone, 30 milligrams, to resell and "make some money." (Tr. 399.) In spring 2010, appellant approached Maxwell about taking trips to Florida to obtain prescription drugs. Appellant offered Maxwell $500 to make the trip. Appellant informed Maxwell that he would be "going down with another person that I knew who had it all set up as far as what doctors we were going to. He had to go down and get a MRI then go from there to * * * see the doctor. The doctor really didn't care if there was anything wrong." (Tr. 400.) Appellant further explained to Maxwell that, after the physician wrote the prescription, "[w]e'd go from there to whatever pharmacy was available, normally whichever one was cheapest, and get the prescriptions filled and then head back to Columbus." (Tr. 403.)
Maxwell made his first trip to Florida in summer 2010 after he "got behind with some money I owed [appellant]." (Tr. 400.) On that trip, Maxwell traveled with MacDonald, Perry, Anderson, and a woman named Kara. Before departing, they met at Creative Tattoos; they "[w]ent in, got the money" from appellant "[w]rapped in a rubber band." (Tr. 402.) Each individual received $2, 000, but MacDonald held the money for everyone but Maxwell. On that first trip, Maxwell was unable to obtain drugs because he "tested positive for cocaine." (Tr. 404.) Upon returning to Columbus with no pills, appellant told Maxwell he would have to return to Florida and "make it up." (Tr. 405.)
Maxwell participated in "[f]our or five" trips to Florida in 2010. (Tr. 406.) Appellant paid for each of those trips, and Maxwell would go to Creative Tattoos to obtain money prior to leaving. Upon returning from Florida, Maxwell gave the pills to appellant at the tattoo shop. Maxwell took trips with MacDonald, Perry, Richard, Cline, Jordan, Keller, Kelley, and Anderson. On the trips he made with MacDonald, "Eric would hold the majority of the money." (Tr. 407.) Maxwell, however, "had a good enough relationship with [appellant] where he trusted me with the money. But he would hold everybody else's money and regulate what was going on." (Tr. 407.) On the return trip from Florida, MacDonald "would gather everybody's pills up * * * around the outskirts of Columbus. As we're getting close to home he'd get everything together. Then we'd drop everybody off and meet up with [appellant]." (Tr. 408.)
Maxwell later made trips without MacDonald. On those occasions, Maxwell would "get in touch with [appellant], get the money. And then I paid another individual to drive me down. And I would just pay out of money that I received. I'd pay that fella the gas money, hotel, the food." (Tr. 407.) On trips he made without MacDonald, Maxwell would collect the pills from the other individuals "and then I delivered them myself once we got to Columbus." (Tr. 409.) Maxwell sometimes delivered pills to appellant's residence and, on other occasions, he accompanied MacDonald to appellant's house to deliver pills. Maxwell went to appellant's residence "at least 10" times, and to the tattoo shop "[a]t least five" times to deliver pills. (Tr. 409.) When Maxwell handed over the pills, appellant would "count them out; make sure the pill count was right." (Tr. 410.) On one occasion, appellant told Maxwell he was sending pills "down to West Virginia to get sold" through "one of his friends, " Sullivan. (Tr. 410.) Appellant financed trips that Maxwell and others made to Florida on September 9, December 2-3, 2010, February 2, March 1-3, March 29-31, and August 15, 2011.
Sparks, age 37, met appellant in 2001 and they became friends. Sparks served five years in prison for a felony conviction for possession of drugs, and he was released on July 28, 2010. After his release, Sparks began traveling out of state to obtain prescription drugs. Sparks was involved in obtaining and selling prescription drugs from June 2011 to February 2012. The CI financed these early trips in which they would obtain Oxycodone 15 and 30 milligram pills. Sparks also "borrowed money from [appellant], and I did use it to go down [to Florida]." (Tr. 456.) Sparks spoke with appellant about making trips to Florida. Appellant advised Sparks to speak with MacDonald regarding how to obtain drugs in Florida. MacDonald provided Sparks with detailed information about traveling to Florida to obtain prescriptions. While in Florida, Sparks sometimes had difficulty obtaining prescriptions; on those occasions, he would contact "several people, " including MacDonald and Robert Ruben. (Tr. 460.) Sparks once loaned appellant his red Ford Taurus; appellant told Sparks "they did go to Virginia" in the vehicle. (Tr. 464.) At one point, appellant expressed concern to Sparks about police surveillance. A friend of Sparks had been "pulled over with some prescription pills as they were leaving the tattoo shop." (Tr. 463.)
Sparks purchased prescription pain medication from appellant from June through December 2011. Sparks recalled purchasing 360 "Percocet" pills from appellant on one occasion, and approximately 100 Percocet pills on another. (Tr. 465.) Sparks made one of these purchases at appellant's residence, while he made the other purchase at Creative Tattoos. Sparks spoke with appellant about taking Smith to Florida for a doctor's appointment, and appellant loaned Sparks $2, 500 for the trip. Smith obtained the pills and turned them over to Sparks, and Sparks then "sold them." (Tr. 468.)
Sparks subsequently entered into an agreement with the state to testify in exchange for a recommended eight-year prison sentence. Sparks further agreed to enter a guilty plea to one count of engaging in a pattern of corrupt activity, one count of aggravated trafficking in drugs, and one count of aggravated funding of drug trafficking.
Jason Moore has known appellant for approximately 35 years. MacDonald approached Jason about taking trips to Florida, and Jason made three trips to that state for prescription medications. His first trip was in June 2010, and he traveled with MacDonald, Richard, and Anderson. MacDonald held all the money during that trip. Upon returning from Florida, Jason gave MacDonald all the Oxycodone 30 milligram pills, as well as the "Xanax and Somas." (Tr. 477-78.) After dropping Anderson off at a location on High Street, they drove to Creative Tattoos. According to Jason, this was "the first time that I even knew that [appellant] had anything to do with it. And we walked in. Me, him, Eric and Richie was in the back room. And Eric gave [appellant] the pills. And he returned, gave them money." (Tr. 478.) Appellant gave MacDonald money "rubber band rolled." (Tr. 479.)
Jason made a second trip in August 2010 with MacDonald, "Eric, Richie, [and] a guy named Ben." (Tr. 479.) MacDonald again held the money during the trip. On one trip, appellant provided a van for transportation. Jason made a third trip to obtain prescription pills in October 2010 with MacDonald, Mike Couch and Moore's fiancee, Patricia Wilson. On the return trip, the vehicle was involved in an accident resulting in Wilson's death. Appellant subsequently drove to Jason's residence and asked Jason to speak with a private investigator. Appellant called the investigator on his phone and handed the phone to Jason. Jason lied to the investigator, telling him "I didn't know what he was talking about." (Tr. 484.)
Smith, age 39, is married to Robert, and she has known appellant since the eighth grade. In 2009, appellant approached Robert about taking trips to Florida; shortly thereafter, Robert began traveling there to obtain prescription drugs. Robert would return from these trips with "the 180 30s, and like 160 15s, 90 Xanaxes and 90 or 60 somas." (Tr. 502.) In late 2009 and early 2010, Robert was traveling to Florida "[o]nce a month, " making trips with Richard and Kelley. (Tr. 502.)
Beginning in July 2010, Smith went on trips to Florida after "Robert said that we could make more money and get more pills." (Tr. 504.) They initially traveled in Smith's vehicle or Kelley's truck, and appellant provided the money for the trips. Smith traveled once a month, obtaining "160 30s, 12015s, and 90 Xanaxes and 60 Somas." (Tr. 505.) Richard held the money for the trips. On the return trip to Ohio, Robert and Richard would "take the 30s." (Tr. 505-06.)
Before leaving on trips, Richard would obtain approximately $2, 000 for each individual's expenses. In 2011, Smith and Robert were involved in a "big fight and split up, " and Smith began taking trips with Sparks instead. (Tr. 508.) Later, from November 2011 until February 24, 2012, Smith again went on trips with "Robert, Richie and." (Tr. 509.) During this time, they were making trips once a month. These same individuals subsequently began flying to Florida. Upon returning to Ohio, "we would * * * then go and drive to Virginia and we'd fill the prescription[s] there and drive back." (Tr. 509.) They traveled to Virginia to fill the prescriptions because "[t]hey were cheaper." (Tr. 511.) The Oxycodone 30 milligram pills "would go to [appellant]." (Tr. 512.) Smith acknowledged her own personal use of the prescription drugs; of the pills Smith was able to keep from the trips, she would either take the pills or sell them. Smith paid cash for the prescriptions she obtained. On February 24, 2012, while returning from a trip to Virginia to fill prescriptions, law enforcement officials stopped their vehicle in Virginia.
Richard testified that his brother, Robert, informed him that appellant wanted him to go to Florida for doctor appointments. Richard had injured his back, and was using prescription pain medication at that time. In 2009, Richard took his first trip to Florida with his brother Robert, along with MacDonald, and Chapman. On that trip, Chapman carried the money for all of the individuals. In return for making the trips, Richard initially received money and some pills, including 15 milligram Oxycodone pills; later, he received just pills. Richard gave the Oxycodone 30 milligram pills to appellant.
On the initial Florida trips, MacDonald drove and also held the money. In 2010, Richard traveled to Florida approximately once a month. Prior to leaving, MacDonald would obtain the money from appellant. Richard sometimes accompanied MacDonald to pick up money from appellant; it would be "wrapped with a rubber band, " with an "individual certain amount for each person." (Tr. 536.)
Near the end of 2011, MacDonald no longer accompanied him, and Richard began carrying the money himself. Richard would meet appellant at "[e]ither the tattoo shop [or] his home." (Tr. 537-38.) Richard would sometimes meet appellant in the garage of appellant's residence to pick up money or to drop off pills. On other occasions, appellant came to Kelley's residence on Lewis Road, where Richard was staying, to drop off money. Sullivan, a friend of appellant, was sometimes present when Richard received money from appellant prior to a trip.
Richard testified that physicians scheduled appointments for the individuals "[e]very 28 days." (Tr. 542.) Prior to the trips, Richard would speak with appellant about "when we going to meet, get everything straightened around, get the money together and stuff; discuss how many people was going, who was going." (Tr. 542.) Richard would drive, and he would pick up the other individuals after obtaining the trip money because appellant "didn't want nobody around." (Tr. 543.)
On the early trips, they could obtain 240 of the Oxycodone 30 milligram pills at one time, but later "they started reducing the amount of pills they wanted to give you. So at the end I believe we was getting like 180 of each." (Tr. 539.) Richard and others began traveling to Virginia to fill the prescriptions.
On most of the trips appellant "was providing the vehicle." (Tr. 545.) Appellant "bought a couple minivans, was letting us use them." (Tr. 545.) Later, Richard borrowed a van from Kelley. When they flew to Florida, appellant would give Richard a "prepaid debit card and put money on it" to pay for the airline tickets. (Tr. 546.) Richard utilized the Internet to purchase the tickets. After Richard purchased the airline tickets, "we'd wait until ready to go, like the day before, meet with [appellant], get the money for us to go pay for the trips and then we'd go." (Tr. 547.) After flying back to Columbus, Richard would "go meet with [appellant], get the rest of the money to go to Virginia to pay for the prescriptions. I'd go get the money for them to go to Virginia, fill, and then come back." (Tr. 548.) Richard would also "take all the 30 milligrams from everybody and put them in one bag, and then I'd take them to [appellant]." (Tr. 549.) Appellant would "be in the garage waiting on me." (Tr. 549-50.) Appellant permitted Richard to use a red Ford Taurus on one of the trips to obtain prescriptions.
Perry dated MacDonald for 14 years until their relationship ended in September 2011. MacDonald approached Perry about traveling to Florida to obtain prescription paid medication, including Oxycodone. Perry made her first trip to Florida in 2011, and then made trips at least "[o]nce a month." (Tr. 582.) MacDonald told Perry that he obtained money for the trips from appellant. Prior to leaving for Florida, MacDonald would go to Creative Tattoos. Perry once obtained money from appellant to bail out MacDonald. In September 2011, law enforcement officials in Virginia arrested Perry.
The CI has known Sparks since 2000, and the CI acknowledged "selling marijuana to him." (Tr. 611.) The CI met appellant in 2010 through Sparks. In summer 2011, the CI observed Sparks leaving on trips to Florida. The CI learned that "the people that rode along with the trips were the actual ones going to the doctor to get the pills and then being compensated for their travel, and the person funding was the individual providing the money." (Tr. 617.) The CI also observed Sparks purchase airline tickets. In July 2011, Sparks asked the CI to dispose of some "[e]mpty and some full pill bottles." (Tr. 620.) Sparks asked him to do this because "I could put them in a dumpster that I would be renting." (Tr. 620.) The CI, acting as a federal informant, provided an IRS agent with information that "Sparks had his people that he was sending, Ruben Rhodes had his group of people, and Mr. Johnson had his group of people, according to Robert." (Tr. 634.)
Columbus Police Detective Jeremy Ehrenborg testified that he had been involved in "three pill investigations" involving "multiple defendants that were traveling from Columbus, Ohio, to Florida to pick up prescription pills." (Tr. 677.) In each investigation, there was usually one individual who "funded the people who were traveling to get pills." (Tr. 677.) The individuals traveling to obtain the pills "generally didn't have the money to buy the prescriptions or pay for all the travel, the food and stuff like that." (Tr. 678.)
In November 2011, MacDonald contacted Detective Ehrenborg and told the detective he "had some information that he wanted to provide." (Tr. 690.) Detective Ehrenborg subsequently spoke with MacDonald regarding "his own activity" and "how the organization * * * ran." (Tr. 691.) Law enforcement officials obtained search warrants to activate GPS tracking on cell phones and vehicles, and a GPS unit was placed on Sullivan's GMC Yukon, as well as on a red Ford Taurus owned by Sparks.
On January 4, 2012, law enforcement personnel observed Leon Taunah at the residence of Sparks. Taunah, who was driving a Dodge Neon, left the residence and drove to Creative Tattoos. A few minutes later, appellant arrived at the tattoo shop. Taunah was observed leaving the tattoo shop and state troopers subsequently stopped his vehicle. A search of the vehicle by troopers revealed receipts from various pharmacies, as well as prescription pill bottles for Oxycodone 30 milligram pills. In February 2012, law enforcement officials pulled over a vehicle belonging to Smith; the officials searched the vehicle, discovering prescriptions, pharmacy receipts, and a document listing the names and phone numbers of 102 pharmacies.
Detective Ehrenborg testified that his investigation revealed three organizations or groups headed by Rhodes, Sparks, and appellant. According to the detective, the investigation indicated that "approximately 46, 000 Oxycodone 30s" were obtained during the time frame (April 2010 through February 2012) in which individuals were making trips to obtain prescriptions. (Tr. 762.) The detective estimated that the street value of the Oxycodone 30 milligram pills was approximately $920, 000.
Following deliberations, the jury returned verdicts finding appellant guilty of engaging in a pattern of corrupt activity and 18 counts of aggravated funding of drug trafficking in case No. 12CR-3961, as well as 7 counts of aggravated funding of drug trafficking in case No. 13CR-5503. By judgment entry filed November 26, 2013, the trial court sentenced appellant in case No. 12CR-3961 to 7 years of incarceration for the count of engaging in a pattern of corrupt activity, and 3 years of incarceration each as to the 18 counts of aggravated funding of drug trafficking, with all counts to be served consecutive to each other, and to be served consecutive to 3 years incarceration imposed in case No. 13CR-5503.

State v. Johnson, 40 N.E.3d 628, 633-643 (Ohio Ct. App. 2015) (paragraph symbols and heading omitted).

         B. Direct Appeal

         Petitioner appealed, raising five assignments of error:

[L] Defendant-Appellant's convictions for engaging in a pattern of corrupt activity and aggravated funding of drug trafficking are not supported by sufficient evidence to satisfy the requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
[II] The State violated Defendant-Appellant's Sixth and Fourteenth Amendment rights to counsel of choice and due process when it misrepresented and concealed material information regarding the expected testimony of its informant in order to manufacture a sham conflict of interest and disqualify Defendant-Appellant's retained attorney.
[III] The cumulative effect of the trial court's erroneous evidentiary rulings, restriction on cross-examination, and a defective specific intent instruction deprived Defendant-Appellant of his Sixth and Fourteenth Amendment right to a fundamentally fair trial and reliable jury verdict.
[IV.] Defendant-Appellant was denied his right to the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
[V.] Defendant-Appellant's consecutive prison sentence totaling 64-years is clearly and convincingly contrary to law and/or an abuse of discretion.

Id. at 643. The appellate court affirmed, id, and on February 10, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal, Johnson, 144 Ohio St.3d 1477 (Ohio 2016).

         C. Federal Habeas

         On February 9, 2017, Petitioner, represented by counsel, filed this case. He asserts five claims for relief:

GROUND ONE: The State deprived Petitioner of his Sixth and Fourteenth Amendment right to counsel of choice and right to due process by manufacturing a sham conflict of interest to disqualify his retained attorney.
GROUND TWO: Petitioner's convictions are not supported by sufficient evidence to satisfy the Due Process requirements of the Fourteenth Amendment.
GROUND THREE: Restrictions on cross-examination, erroneous evidentiary rulings, and defective jury instructions deprived Petitioner of his Sixth and Fourteenth Amendment right to due process and a fair trial.
GROUND FOUR: The deficient performance of appointed counsel prejudiced Petitioner's defense to the charges and deprived him of his Sixth and Fourteenth Amendment right to the effective assistance of counsel.
GROUND FIVE: The imposition of an enhanced sentence as punishment for Petitioner's decision to go to trial deprived him of his Sixth and Fourteenth Amendment right to due process and a jury trial.

Petition (Doc. 1, PAGEID# 5, 7, 8, 10, 12.)

         II. STANDARD OF REVIEW

         A. Merits

         Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this case. The United States Supreme Court has described AEDPA as "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" and emphasized that courts must not "lightly conclude that a State's criminal justice system has experienced the 'extreme malfunction' for which federal habeas relief is the remedy." Burt v. Titlow, ___U.S.___, 134 S.Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) ("AEDPA . . . imposes a highly deferential standard for evaluating state-court rulings, and demands that state court decisions be given the benefit of the doubt.") (internal quotation marks, citations, and footnote omitted).

         AEDPA limits the federal courts' authority to issue writs of habeas corpus and forbids a federal court from granting habeas relief with respect to a "claim that was adjudicated on the merits in State court proceedings" unless the state court decision either:

(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). Further, the factual findings of the state court are presumed to be correct:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

         Accordingly, "a writ of habeas corpus should be denied unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented to the state courts." Coley v. Bagley, 706 F.3d 741, 748 (6th Cir. 2013)(citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)). The United States Court of Appeals for the Sixth Circuit has summarized these high standards:

A state court's decision is "contrary to" Supreme Court precedent if (1) "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law[, ]" or (2) "the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision is an "unreasonable application" under 28 U.S.C. § 2254(d)(1) if it "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular...case" or either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context. Id. at 407, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389.

Id. at 748-49. The burden of satisfying AEDPA's standards rests with the petitioner. See Cullen v. Pinholster, 563 U.S.170, 181 (2011).

         B. Procedural Default

         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 the prisoner fails to do so, but still has an avenue open to present the claims, then the 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 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). This Court may sua sponte raise the issue of procedural default when conducting preliminary review of the habeas corpus petition under Rule 4. See Watkins v. Warden, Dayton Corr. Inst, No. 2:16-cv-00501, 2016 WL 4394138, at *2 (S.D. Ohio Aug. 18, 2016) ("[A]lthough federal courts are not required to raise procedural default sua sponte, neither are they precluded from doing so.").

         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. That means that if the claims are not presented to the state courts in the way 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. As the Supreme Court found 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 to determine if a federal habeas claim is waived by the petitioner's failure to observe a state procedural rule. SeeMaupin 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 sanction. Id. Third, it must be decided whether the state procedural forfeiture 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 has determined 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 that there was cause for the failure to follow the procedural rule and the alleged constitutional error caused actual prejudice. 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, 95 (6th Cir. 1985).

         Ill DISCUSSION

         A. Ground One: Denial of Counsel of Choice

         Petitioner's first ground for relief asserts that he was deprived of his Sixth Amendment right to counsel of his choice and his Fourteenth Amendment right to due process because the prosecutors "manufactured a sham conflict of interest" in order to disqualify his retained attorney, Javier Armengau. Specifically, Petitioner contends that the prosecutors misrepresented and concealed material ...


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