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Taylor v. Buchanan

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

May 17, 2018

DARRYL TAYLOR, Petitioner,
v.
TIM BUCHANAN, Warden, Noble Correctional Institution Respondent.

          Michael R. Barrett District Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This is a habeas corpus case brought pro se by Petitioner Darryl Taylor to obtain relief from his conviction for drug trafficking in the Lawrence County, Ohio, Court of Common Pleas (Petition, ECF No. 1).

         Procedural History

         Taylor was indicted by the Lawrence County grand jury on September 24, 2014, and charged with trafficking oxycodone in the presence of juveniles, three other drug felonies, and a firearm specification. After his motion to suppress evidence obtained by a confidential informant was denied, he was tried to a jury and convicted on all charges except the firearm specification. He was then sentenced to thirteen years of imprisonment, the term he is now serving.

         Taylor appealed to the Ohio Fourth District Court of Appeals which affirmed except for failure to advise of a mandatory term of post-release control. State v. Taylor, 2016 Ohio App. LEXIS 1644 (4th Dist. Apr. 27, 2016), appellate jurisdiction declined, 147 Ohio St.3d 1446 (2016). Taylor moved to reopen his appeal to raise claims of ineffective assistance of appellate counsel (State Court Record, ECF No. 6, PageID 164). The Fourth District declined to reach the merits of the application, concluding Taylor had failed to properly present his claims. State v. Taylor, No. 15 CA 12 (4th Dist. Aug. 30, 2016)(unreported; copy at State Court Record, ECF No. 6, PageID 179-82). Taylor unsuccessfully sought review in the Ohio Supreme Court. State v. Taylor, 147 Ohio St.3d 1446 (2016).

         At the time the Return of Writ was filed, Taylor had a pending appeal from his resentencing. That case does not involve any issue presented here, so the exhaustion doctrine does not prevent this Court from proceeding.

         Taylor filed his Petition in this Court on April 5, 2017, pleading the following grounds for relief:

GROUND 1: Petitioner's motion to suppress evidence in his case should have been granted because of the lack of a proper search warrant due to the insufficient probable cause and sufficiency of the affidavit, thus, violating his Fourth Amendment of the United States Constitution and Article 1, Section 14 of the Ohio Constitution.
GROUND 2: The admission of evidence alleged to confirm the first controlled buy of drugs violated the petitioner's right against unreasonable search and seizure under the Fourth Amendment of the United States Constitution and Article 1, Section 14 of the Ohio Constitution.
GROUND 3: The evidence presented at trial is insufficient to support petitioner's conviction for drug trafficking, which conviction is manifestly against the weight of the evidence, and the defense of entrapment is established, thus, acquittal is appropriate.
GROUND 4: The petitioner was denied effective assistance of appellate counsel when he failed to raise petitioner's constitutional right to have the assistance of counsel for his defense.
GROUND 5: The petitioner was denied effective assistance of appellate counsel when he failed to raise petitioner's constitutional right to raise petitioner's constitutional right to a fair trial by impartial, indifferent jurors. .

         (Petition, ECF No. 1, Page ID # 4, 6, 11, 16 and 20).

         Analysis

         Grounds One and Two: Violations of the Fourth Amendment

         In his first two grounds for relief, Taylor alleges his Fourth Amendment rights were violated by the admission of evidence obtained from him in that the first controlled buy of drugs was an unreasonable search and the subsequent search of his home was performed in execution of a search warrant which was not supported by probable cause.

         Although the State asserts a procedural default defense to these two grounds, a more fundamental problem, also raised by Respondent, is that they are not cognizable in habeas corpus. Federal habeas corpus relief is not available to state prisoners who allege they were convicted on illegally seized evidence if they were given a full and fair opportunity to litigate that question in the state courts. Stone v. Powell, 428 U.S. 465, 494-95 (1976). Stone requires the district court to determine whether state procedure in the abstract provides full and fair opportunity to litigate, and Ohio procedure does. The district court must also decide if a Petitioner's presentation of claim was frustrated because of a failure of the state mechanism. Habeas relief is allowed if an unanticipated and unforeseeable application of a procedural rule prevents state court consideration of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley court, in discussing the concept of a “full and fair opportunity, ” held:

The mechanism provided by the State of Ohio for resolution of Fourth Amendment claims is, in the abstract, clearly adequate. Ohio R. Crim. P. 12 provides an adequate opportunity to raise Fourth Amendment claims in the context of a pretrial motion to suppress, as is evident in the petitioner's use of that procedure. Further, a criminal defendant, who has unsuccessfully sought to suppress evidence, may take a direct appeal of that order, as of right, by filing a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P. 5(A). These rules provide an adequate procedural mechanism for the litigation of Fourth Amendment claims because the state affords a litigant an opportunity to raise his claims in a fact-finding hearing and on direct appeal of an unfavorable decision.

Id. at 526.

         In his Reply to the Return of Writ, Taylor asserts he did not get a full and fair opportunity to litigate his Fourth Amendment claims because the Common Pleas Court failed to hold a suppression hearing (ECF No. 8, PageID 517). He notes that his attorney filed a motion to suppress (State Court Record, ECF No. 6, PageID 43-44). In the decision on that motion, the trial judge wrote as an introductory paragraph, “Defendant's motion to suppress came on for hearing before the Court with the Defendant, Defense Counsel and Prosecuting Attorney present and before the Court.” Id. at PageID 47. Taylor claims this is a “bold fabrication. Petitioner avers that he attended no such hearing, and a search of the record provide[s] no transcript depicting the same.” (Response, ECF No. 8, PageID 517.)

         Taylor is correct that the State Court Record does not included any transcript of a suppression hearing. Taylor claims this violates the Court Reporter Act, 28 U.S.C. § 753(b), but that statute only applies to the recording of proceedings in federal courts. It is likely, instead, that the opening language of the trial judge's decision is merely formal language indicating when the motion to suppress was ready for decision. Taylor's counsel did not ask for a hearing on the motion and it appears the issues were well known from the briefs; indeed, Judge Cooper states “[b]oth State and Defendant briefed the arguments of law and submitted them to the Court.” (Judgment Entry, State Court Record, ECF No. 6, PageID 47.) The absence of a transcript of any suppression hearing, if in fact one took place, did not prevent the Fourth District from thoroughly considering Taylor's second assignment of error, which challenged only the audio-video recording made by the confidential informant on the first controlled buy, and made no challenge of the search warrant. State v. Taylor, supra, ¶¶ 29-38.

         In Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013), the Sixth Circuit held an evidentiary hearing was not required by due process and followed its prior conclusion that “opportunity means opportunity . . . the state court need do no more than ‘take cognizance of the constitutional claim and render a decision in light thereof.” Id. at 638, quoting Moore v. Cowan, 560 F.2d 1298, 1302 (6th Cir. 1977).

Consistent with Moore and with two of the three votes in Bradley [v. Cowan, 561 F.2d 1213 (1977)], we make clear that the [Stone v.] Powell[, 428 U.S. 465 (1976)] "opportunity for full and fair consideration" means an available avenue for the prisoner to present his claim to the state courts, not an inquiry into the adequacy of the procedure actually used to resolve that particular claim.

Id. at 639.

         Because Taylor was given a full and fair opportunity to litigate his Fourth Amendment claims, his first two grounds for relief are not cognizable in habeas corpus and should be dismissed.

         Ground Three: ...


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