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Crockett v. Warden, Ross Correctional Institution

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

June 14, 2018




          Elizabeth 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, 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 Twelfth District Court of Appeals summarized the facts and procedural history of the case as follows:

Gene Ivers, the Chief Probation Officer for the Washington Court House Municipal Court, performed a residence search of one of his probationers, Terri Ruth. Ivers was accompanied by a Fayette County deputy during the search. Ruth, who rented the apartment in which she and her daughter lived, was subject to residence searches as a term of her probation. When Ivers arrived to search Ruth's residence, Ruth, Ruth's daughter, Crockett, and another man were located in the apartment.
Ivers discovered marijuana on Ruth's dresser in her bedroom, as well as a white powdery substance, plastic wrap and baggies, a locked safe, a key, digital scales, lighters, a burnt spoon, and small baggies of a white product. Inside the safe, Ivers found a gun, cash, and more drugs. Upon finding these items, Ivers and the deputy contacted the Sheriff's Office for aid in completing the search.
Lieutenant Ryan McFarland of the Fayette County Sheriff's Office responded to Ruth's residence. There, he seized the safe, gun, drugs, and money, and sent the items to the Ohio Bureau of Criminal Investigation for testing. The items in the baggies tested positive for cocaine and heroin, and the other drugs were identified as oxycodone, dihydrocodeine, and alprazolam.
Later, during a recorded phone call originating from the Fayette County Jail, Crocket and an unnamed woman were heard conversing about the possible charges against him. The woman indicated that the police were taking the gun and dusting it for fingerprints in order to determine who the gun belonged to. At that point, Crockett is heard stating, “I wiped that down. I got nothing to do with that.” Crockett was charged with multiple counts of trafficking in cocaine, possession of cocaine, trafficking in heroin, possession of heroin, aggravated trafficking in drugs, possession of controlled substances, and having weapons under disability. The matter proceeded to a jury trial after Crockett pled not guilty to all of the charges.
During trial, Crockett stipulated to his prior conviction of a drug-related offense, and the trial court admitted a redacted copy of Crockett's judgment entry of conviction to show that he was under a disability and not permitted to possess a gun.
The jury also heard a redacted version of the phone call between Crockett and the unnamed woman in which Crockett is heard discussing his claim that he wiped down the gun. Crockett did not testify, nor did he present any witnesses in his defense.
The jury found Crockett guilty of trafficking in, and possession of, the cocaine and heroin found in the safe, as well as having weapons under disability. However, the jury found Crockett not guilty of the other charges specific to the drugs located outside of the safe that Ivers found in different locations throughout Ruth's bedroom.
The trial court merged the possession charges into the trafficking charges, and sentenced Crockett to an aggregate sentence of nine years on the two trafficking charges and having weapons under disability. Crockett now appeals his convictions and sentence[.]

State v. Crockett, 2015 WL 2169268, at *1-2 (Ohio App. 12th Dist. May 11, 2015). Petitioner asserted on direct appeal that his convictions were against the manifest weight of the evidence, that the evidence was constitutionally insufficient to sustain his convictions, that he was denied the effective assistance of counsel. See id. On May 1, 2015, the appellate court affirmed the judgment of the trial court. Id. On August 26, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Crockett, 143 Ohio St.3d 1447 (Ohio 2015). On July 22, 2015, Petitioner filed an application for reopening of the appeal pursuant to Ohio Appellate Rule 26(B). (ECF No. 6-1, PageID# 193.) On October 16, 2015, the appellate court denied the Rule 26(B) application. (PageID# 203.) Petitioner did not file an appeal.

         On September 26, 2016, Petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that his convictions are against the manifest weight of the evidence and that the evidence is constitutionally insufficient to sustain his convictions (claim one); that he was denied the effective assistance of counsel (for different reasons) (claims two and three); and that the trial court erred when it denied his motion for judgment of acquittal (claim four). It is the position of the Respondent that Petitioner's claims are procedurally defaulted or otherwise fail to provide a basis for relief.

         Procedural Default: Claim Three

         The Court turns first to that aspect of Petitioner's third claim for ineffective assistance of counsel because counsel failed to object to the admission of his telephone conversation from the jail. For the reasons that follow, the Undersigned concludes that this aspect of claim three is procedurally defaulted.

         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).

         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.”

         To determine whether procedural default bars a habeas petitioner's claim, courts in the Sixth Circuit engage in a four-part test. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); see also Scuba v. Brigano, 259 Fed.Appx. 713, 718 (6th Cir. 2007) (following the four-part analysis of Maupin). 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. Second, the court must determine whether the state courts actually enforced the state procedural sanction. Third, the court must determine whether the forfeiture is an adequate and independent state ground on which the state can rely to foreclose review of a federal constitutional claim. Maupin, 785 F.2d at 138. Finally, if “the court determines that a state procedural rule was not complied with and that the rule [has] an adequate and independent state ground, then the petitioner” may still obtain review of his or her claims on the merits if the petitioner establishes: (1) cause sufficient to excuse the default and (2) that he or she was actually prejudiced by the alleged constitutional error. Id.

         In claim three, Petitioner asserts, inter alia, that he was denied the effective assistance of counsel because his attorney failed to object to admission of his telephone conversation as improperly authenticated. Petitioner did not raise this issue on direct appeal, where he was represented by new counsel. Moreover, he may now no longer present this claim to the state courts by virtue of the application of Ohio's doctrine of res judicata. See State v. Perry, 10 Ohio St.2d 175 (1967) (holding that claims must be raised on direct appeal, if possible, or they will be barred by the doctrine of res judicata); see also State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981).

         Ohio courts have consistently refused, in reliance on the doctrine of res judicata, to review the merits of procedurally barred claims. See Cole, 443 N.E.2d at 170-71; Ishmail, 423 N.E.2d at 1070. The Sixth Circuit has held that Ohio's doctrine of res judicata is an independent and adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427-29 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Finally, with respect to the last Maupin factor, the independence prong, the Court concludes that Ohio's doctrine of res judicata in this context does not rely on or otherwise implicate federal law. Accordingly, the Court is satisfied from its own review of relevant case law that res judicata rule articulated in Perry is an adequate and independent ground for denying relief, and the Maupin factors are satisfied. Therefore, Petitioner has waived this portion of claim three for review in these proceedings.

         Petitioner may still secure review of his claim on the merits if he demonstrates cause for his failure to follow the state procedural rules, as well as actual prejudice from the constitutional violations that he alleges. “‘[C]ause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him[, ] ‘. . . some objective factor external to the defense [that] impeded. . . efforts to comply with the State's procedural rule.'“ Coleman v. Thompson, 501 U.S. 722, 753 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). It is Petitioner's burden to show cause and prejudice. Hinkle v. Randle, 271 F.3d 239, 245 (6th Cir. 2001) (citing Lucas v. O'Dea, 179 F.3d 412, 418 (6th Cir. 1999) (internal citation omitted)). A petitioner's pro se status, ignorance of the law, or ignorance of procedural requirements are insufficient bases to excuse a procedural default. Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004). Instead, in order to establish cause, a petitioner “must present a substantial reason that is external to himself and cannot be fairly attributed to him.” Hartman v. Bagley, 492 F.3d 347, 358 (6th Cir. 2007). Petitioner has offered no excuses and has thus failed to establish cause for his procedural default.

         The United States Supreme Court has also held that a claim of actual innocence may be raised “to avoid a procedural bar to the consideration of the merits of [a petitioner's] constitutional claims.” Schlup v. Delo, 513 U.S. 298, 326-27 (1995). “[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.” Murray, 477 U.S. at 496. In Schlup, the Supreme Court held that a credible showing of actual innocence was sufficient to authorize a federal court in reaching the merits of an otherwise procedurally-barred habeas petition. Id. at 317. However, a claim of actual innocence is “‘not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'“ Id. at 315 (quoting Herrera, 506 U.S. at 404).

         The actual innocence exception to procedural default allows a petitioner to pursue his constitutional claims if it is “more likely than not” that new evidence-i.e., evidence not previously presented at trial-would allow no reasonable juror to find him guilty beyond a reasonable doubt. Souter v. Jones, 395 F.3d 577 ...

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