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Poulton v. Buchanan

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

April 30, 2018

ADAM C. POULTON, Petitioner,
v.
TIM BUCHANAN, WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.

          Edmund A. Sargus, Jr. Chief Judge.

          REPORT AND RECOMMENDATION

          A. Preston Deavers 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. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

         Facts and Procedural History

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

On January 10, 2013, Dresden Police Officer Scott Caldwell was on routine patrol when he observed an African-American male, later identified as Jeffrey Body, enter a residence at 801 Canal Street, in an area known for illegal drug activity. Officer Caldwell also noticed a Cadillac automobile moving through the area. A few minutes later, he returned to the area of the residence and saw a number of people in the middle of the street. Officer Caldwell then saw Body, with blood on his person, running away from the group of people. The officer notified the Muskingum County Sheriff's Office for assistance. Body thereafter told investigators that he had been jumped and robbed by three or four males. During the altercation, Body suffered several broken bones to his face and was robbed of his wallet and automobile.
After appellant was apprehended, he was interviewed by Detective Brady Hittle of the Muskingum County Sheriff's Office. The interview was recorded on DVD, as further analyzed infra.

         On January 16, 2013, the Muskingum County Grand Jury indicted appellant on the following charges:

1) Aggravated Robbery with a firearm specification and repeat violent offender specification, a felony of the first degree, R.C. 2911.01(A)(1), 2941.145, and 2941.149;
2) Aggravated Robbery with a firearm specification and repeat violent offender specification, a felony of the first degree, R.C. 2911.01(A)(3), 2941.145, and 2941.149;
3) Felonious Assault with a firearm specification and repeat violent offender specification, a felony of the second degree, R.C. 2903.11(A)(1), 2941.145, and 2941.149;
4) Theft (motor vehicle), a felony of the fourth degree, R.C. 2913.02(A)(1);
5) Having a Weapon While Under Disability, a felony of the third degree, R.C. 2923.13(A)(2);
6) Having a Weapon While Under Disability, a felony of the third degree, R.C. 2923.13(A)(3);
7) Theft ($1, 000-$7, 500), a felony of the fifth degree, R.C. 2913.02(A)(1).
Appellant appeared with his attorney for arraignment on January 23, 2013, at which time he entered pleas of not guilty to all of the aforesaid counts.
On March 26, 2013, appellant's trial attorney filed a written motion to withdraw as counsel. The trial court denied said motion via judgment entry the next day.
Prior to trial, the trial court asked the parties to brief whether certain portions of appellant's statements, made during his interview with Detective Hittle, were admissible under Evid.R. 410, concerning whether the statements may have been made in an effort to obtain a favorable plea. After reviewing the briefs and the DVD of the police interview and conducting a short hearing before the commencement of the trial, the court ruled that the statements should be admitted. See Tr. at 6-17.
The case proceeded to a jury trial on May 30, 2013. After hearing the evidence and viewing the DVD of appellant's interview with Detective Hittle, the jury returned a verdict of guilty on all charges and specifications.
At sentencing, the trial court found the following counts would merge: Counts One, Two, and Three; Counts Four and Seven; Counts Five and Six; all firearm specifications; and all repeat violent offender specifications. The court also found that Counts One and Two would merge with Counts Four and Seven. The trial court thereupon sentenced appellant to an aggregate prison term of sixteen years.

         Appellant herein raises the following two Assignments of Error:

“I. THE TRIAL COURT ERRED IN ADMITTING STATEMENTS MR. POULTON MADE DURING THE COURSE OF PLEA DISCUSSIONS.
“II. THE TRIAL COURT ERRED IN DENYING COUNSEL'S MOTION TO WITHDRAW, LEADING TO DENIAL OF MR. POULTON'S RIGHTS TO COUNSEL OR CHOICE OF COUNSEL.”

State v. Poulton, No. CT2013-0030, 2014 WL 1341925, at *1-2 (Ohio App. 5th Dist. March 14, 2014). On March 14, 2014, the appellate court affirmed the judgment of the trial court. Id. On June 11, 2014, the Ohio Supreme Court declined review. State v. Poulton, 139 Ohio St.3d 1420 (Ohio 2014).

         On June 11, 2014, Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). (ECF No. 6-1, PageID# 216.) On August 18, 2014, the appellate court denied Petitioner's Rule 26(B) application. (PageID# 261.) Petitioner filed a motion for reconsideration. (PageID# 268.) On October 9, 2014, the appellate court denied the motion for reconsideration. (PageID# 273.) Petitioner did not file an appeal.

         Petitioner also pursued post conviction relief. The Ohio Court of Appeals summarized those proceedings as follows:

Appellant filed a pro se petition to vacate or set aside judgment of conviction or sentence on December 19, 2013. Appellant filed separate motions for the appointment of an expert private investigator and the appointment of counsel to aid in investigating his claims.
Appellant's petition asserts he was denied the effective assistance of trial counsel after the trial court denied his counsel's motion to withdraw as counsel via Journal Entry entered March 27, 2013. Appellant maintains trial counsel “refused to accept calls from petitioner's family, failed to interview or call possible witnesses in petitioner's defense, and failed to prepare or present a defense of petitioner's innocence.” Appellant attached affidavits, his own, his aunt, and co-defendant Joseph Roth's, in support of his petition. Appellant's own affidavit avers he attempted to contact counsel “to aide in the petitioner's defense” or contacted the attorney and the attorney failed to follow the leads which “could have proved” Appellant's innocence. Appellant's petition sought the appointment of an expert private investigator to produce the evidence, and appointment of counsel to fully investigate and litigate Appellant's claims.

         Appellant also attached the affidavit of Joseph Roth, which averred:

I attempted to contact Attorney Todd Long, on several occasions as to the possibility of my testifying on behalf of the defense in which he represented Adam Poulton, Mr. Long in return failed to contact me in anyway what so ever, even when he was made aware of Mr. Poultons [sic] family that I was one of the Co-defendants, in Mr. Poultons [sic], case and could have helped prove his innocence.
Roth, Affidavit of Truth, 12/10/2013 Via separate judgment entries entered July 9, 2015, the trial court denied Appellant's petition to vacate or set aside judgment of conviction or sentence, motion for expert assistance ...

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