United States District Court, S.D. Ohio, Eastern Division
ADAM C. POULTON, Petitioner,
TIM BUCHANAN, WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.
A. Sargus, Jr. Chief Judge.
REPORT AND RECOMMENDATION
Preston Deavers United States Magistrate Judge.
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
and Procedural History
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
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.
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,
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.
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).
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
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.
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 ...