Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Person v. Clipper

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

January 23, 2019

MICHAEL PERSON, Petitioner,
v.
KIMBERLY CLIPPER, Warden Respondent.

          DONALD C. NUGENT, JUDGE

          REPORT & RECOMMENDATION

          JONATHAN D. GREENBERG, UNITED STATES MAGISTRATE JUDGE

         This matter is before the undersigned pursuant to Local Rule 72.2. Before the Court is the Petition of Michael Person (“Person” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Person is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case State v. Person, Summit County Court of Common Pleas No. 2014-02-0569. For the following reasons, the undersigned recommends that the Petition be DENIED.

         I. Summary of Facts

         In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the facts underlying Person's conviction as follows:

{¶ 2} The Summit County Grand Jury indicted Person on the following counts: (1) one count of rape in violation of R.C. 2907.02(A)(2), a felony of the first degree; (2) two counts of complicity to commit rape in violation of R.C. 2907.02(A), 2923.03(A)(2), a felony of the first degree; (3) one count of felonious assault in violation of R.C. 2903.11(A)(1), a felony of the second degree; and (4) kidnapping in violation of R.C. 2905.01(A)(3), (A)(4), a felony of the first degree. Sexually violent predator specifications in violation of R.C. 2971.01(H) were attached to the rape and complicity to commit rape counts while sexual motivation specifications in violation of R.C. 2971.01, 2941.147 were attached to the felonious assault and kidnapping convictions.
{¶ 3} The indictment arose from an incident that occurred during the late evening/early morning hours at Person's house after a house party broke up. Person negatively reacted to the interactions between S.M., his then-girlfriend, and other male attendees of the party. Once the other party guests were gone, except for Person's uncle who lived in the house, Person burned S.M.'s arm with a lit cigarette, dragged her into his bedroom, hit her and choked her, and ran a knife over her skin while threatening her. During the course of these events, Deandra Thomas, one of Person's acquaintances, arrived at the house. Upon his arrival, Person instructed S.M. to perform fellatio on Thomas and he ordered Thomas to have intercourse with her. [footnote omitted]. After Thomas stopped having intercourse with S.M., he punched her in the right eye and then left.
{¶ 4} S.M. felt compelled to stay the night at Person's house due to Person's threatening demeanor and he forced her to have intercourse with him. In the early afternoon on the day after the incident, an acquaintance picked S.M. up and she drove S.M. to Barberton Citizens Hospital, where she presented with the following injuries: multiple bruises and scratches, a burn on her left shoulder, a swollen right eye, bleeding in the white of her left eye, and a chipped tooth. After presenting with these injuries, S.M. was transported via ambulance to St. Thomas Hospital, where she underwent a sexual assault medical examination.
{¶ 5} Person waived the presentation of evidence to the jury regarding the sexually violent predator specifications. The matter then proceeded to a jury trial after which the jury found Person guilty of each count alleged in the indictment. The trial court subsequently conducted a hearing on the sexually violent predator specifications at which it reviewed statements that Thomas gave to police regarding the incident. After reviewing the evidence, the trial court determined that the sexually violent specifications were proven beyond a reasonable doubt. The State dismissed the sexual motivation specifications for the felonious assault and kidnapping charges.
{¶ 6} At sentencing, Person argued that his convictions were allied offenses of similar import and should be merged for the purposes of sentencing. However, the trial court rejected this argument and instead concluded that the offenses were not subject to merger as “[t]hey were all separate incidents with separate intent, separate animus, [and] separate conduct.” The trial court ordered that Person's sentences for the rape, complicity to commit rape, and kidnapping charges run consecutively for a total prison term of 41 years to life.

State v. Person, 2016 WL 756930 at * 1-2 (Ohio App. 9th Dist. Feb. 24, 2016).

         II. Procedural History

         A. Trial Court Proceedings

         In March 2014, a Summit County Grand Jury charged Person with (1) one count of rape in violation of Ohio Rev. Code § 2907.02(A)(2) (Count 1); (2) two counts of complicity to commit rape in violation of Ohio Rev. Code § 2907.02(A)(2)/2923.03(A)(2) (Counts 2 and 3); (3) one count of felonious assault in violation of Ohio Rev. Code § 2903.11(A)(1) (Count 4); and (4) one count of kidnapping in violation of Ohio Rev. Code § 2905.01(A)(3) (Count 5).[1](Doc. No. 7-1, Exh. 1.) Person pled not guilty. (Doc. No. 7-1, Exh. 2.)

         On April 16, 2014, the Summit County Grand Jury issued a supplemental indictment to include sexually violent predator specifications in violation of Ohio Rev. Code §§ 2971.01(H) and 2941.148 for the rape and complicity to commit rape charges, and sexual motivation specifications in violation of Ohio Rev. Code §§ 2971.01 and 2941.147 for the felonious assault and kidnapping charges. (Doc. No. 7-1, Exh. 3.) Person entered pleas of not guilty to the specifications. (Doc.No. 7-1, Exh. 4.)

         On September 29, 2014, Person waived his right to a jury trial on the sexually violent predator specifications. (Doc. No. 7-1, Exh. 5.) The case proceeded to a jury trial that same day. (Doc. No. 7-1, Exh. 6.) The jury found Person guilty of all charges on October 3, 2014. (Id.)

         On October 10, 2014, the state trial court imposed the following sentences: ten years to life in prison for each of the rape and complicity to commit rape convictions; five years' imprisonment for the felonious assault conviction; and eleven years' imprisonment for the kidnapping conviction. (Doc. No. 7-1, Exh. 7.) The sentences for rape, complicity to commit rape, and kidnapping were to be served consecutively to each other and the sentence for felonious assault was to be served concurrently with the other charges, for a total sentence of 41 years to life in prison. (Id.) The court also found Person guilty of the sexually violent predator specifications to the first three counts, but dismissed the sexual motivation specifications to counts four and five. (Id.)

         B. Direct Appeal

         On November 26, 2014, Person, through counsel, filed a Notice of Appeal with the Court of Appeals for the Ninth Appellate District (“state appellate court”). (Doc. No. 7-1, Exh. 8.) In his appellate brief, Person raised the following assignments of error:

1. The trial court erred as a matter of law in imposing separate sentences upon Person in violation of the Double Jeopardy Clause of the 5th Amendment to the U.S. Constitution and Article I, Section[] 10 of the Ohio Constitution.
2. The trial court erred as a matter of law when it reviewed a recorded statement of the co-defendant in violation of the Due Process Clause of the 6th and 14th Amendments to the U.S. Constitution and Article I, Sections 1, 10 & 16 of the Ohio Constitution.
3. Person's convictions are against the manifest weight of the evidence in violation of the Due Process Clause of the 14th Amendment to the U.S. Constitution and Article I, Sections 1, 10 & 16 of the Ohio Constitution.

(Doc. No. 7-1, Exh. 9 (capitalization altered).) The State filed a brief in opposition. (Doc. No. 7-1, Exh. 10.) On February 24, 2016, the state appellate court affirmed the trial court's judgment. (Doc. No. 7-1, Exh. 11.)

         Person did not timely appeal the state appellate court judgment. Rather, on May 31, 2016, Person filed a Motion for Leave to file a Delayed Appeal and Notice of Appeal to the Supreme Court of Ohio. (Doc. No. 7-1, Exhs. 12, 13.) Therein, Person stated that his appellate counsel failed to notify him of the state appellate court decision until April 28, 2016, after the deadline to timely appeal.[2] (Doc. No. 7-1, Exh. 13 at PageID#176.) He stated, however, that “I found out I lost my appeal on 3-11-16 from a family friend.” (Id.)

         On July 27, 2016, the Supreme Court of Ohio denied Person's motion and dismissed the appeal. (Doc. No. 7-1, Exh. 14.)

         C. Federal Habeas Petition

         On June 16, 2017, [3] this Court received for filing Person's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) The Petition asserts the following grounds for relief:

1. The trial court erred as a matter of law in imposing separate sentencings upon Person in violation of the Double Jeopardy Clause of the 5th Amendment to the U.S. Constitution, and Article I, Section[] 10 of the Ohio Constitution.
Supporting Facts: Trial court erred by sentencing Petitioner on allied offenses of similar import; i.e.[, ] Petitioner's rape and kidnapping convictions should have merged, while his felonious assault and kidnapping convictions should have also merged.
2. The trial court erred as a matter of law when it reviewed a recorded statement of the co-defendant in violation of the Due Process Clause of the 6th and 14th Amendments to the U.S. Constitution and Article I, Sections 1, 10, & 16 of the Ohio Constitution.
Supporting Facts: Petitioner asserts that the trial court erred reviewing out-of-court statements; where the consideration of these statements in determining Petitioner's innocence or guilt; violated [P]etitioner's [right] to confront witnesses.
3. Person's convictions are against the manifest weight of the evidence [] in violation of the Due Process Clause of the U.S. Constitution and Article I, Section[s] 1, 10 & 16 of the Ohio Constitution.' Supporting Facts: Petitioner argues that his felonious assault and kidnapping convictions were against the manifest weight of evidence.
4. Petitioner was denied his U.S. constitutional rights [of] equal protection of law and due process when the prosecution attempted to conceal exculpatory evidence.
5. Petitioner was denied his right to equal protection of law; where through fraud and deceit false evidence was submitted to obtain Petitioner's conviction, resulting in a clear Brady and Napue violation.

(Doc. No. 1 at 5, 6, 8, 9, 10.)

         On August 7, 2017, Person filed a Motion to Amend his Petition, seeking to add the following two additional grounds for relief:

6. Insufficient Evidence (actual innocence)
Supporting Facts: The trial court violated Petitioner's United States Constitutional Rights under the Fifth, Sixth, and Fourteenth Amendments; when the trial court allowed to stand the jury verdict of guilt on one count of rape; two counts of complicity to commit rape; one count of felonious assault; and one count of kidnapping; where the State had failed to prove each essential element of said crimes.
7. Petitioner's direct appeal counsel was constitutionally ineffective where counsel failed to bring petitioner aware of: (1) the existence of the State's ORC 2953.21 post-conviction proceeding; (2) the time-line and deadline for filing such petition, and (3) the triggering mechanism which started the deadline.
Supporting Facts: Appellate counsel violated petitioner's Sixth and Fourteenth Amendment Rights, under the United States Constitution, where counsel failed to bring petitioner aware of the post- conviction remedy to raised material instances of ineffective assistance of trial counsel pertaining to counsel's failure to investigate facts, and interview/call witnesses, that would have impeached and disproved the alleged victim's credibility/testimony on essential facts of the case.

(Doc. No. 6.) Respondent filed a brief in response to the Motion, in which she acknowledged that “[b]ecause Person filed his motion to amend before a responsive pleading was filed, Person may amend his petition ‘as a matter of course.'” (Doc. No. 8.)

         On August 18, 2017, Respondent moved to dismiss the Petition on the grounds it is time barred by AEDPA's one-year statute of limitations, or, alternatively, that it asserts claims that are not cognizable on federal habeas review, are unexhausted, have been waived and are procedurally defaulted, or fail on the merits. (Doc. No. 7.) On September 13, 2017, Person filed a combined Brief in Opposition to Respondent's Motion to Dismiss and Motion to Hold his Petition in Abeyance while he exhausts claims in state court. (Doc. No. 9.) On September 27, 2017, Respondent replied to Person's Opposition to the Motion to Dismiss and opposed his Motion to Hold the Petition in Abeyance. (Doc. No. 10.)

         On November 8, 2017, the undersigned issued an Order denying Respondent's Motion to Dismiss. (Doc. No. 12.) Specifically, the Court rejected Respondent's argument the Petition was time-barred, finding “the facts surrounding the date Person filed his petition . . . are clearly in dispute” and “the statute of limitations issue, therefore, requires further briefing and consideration.” (Id. at 11.) The Court also rejected Respondent's argument Person's First and Third Grounds are non-cognizable. With regard to Ground One, the Court determined:

[T]o the extent Person alleges his sentences violate Ohio Rev. Code § 2941.25, or the state appellate court misapplied Ohio law in considering his allied-offenses claim on direct review, he has not stated a cognizable ground for relief, as this Court must defer to and is bound by state-court rulings on issues of state law. However, to the extent Person contends the trial court's sentencing violates the Double Jeopardy Clause, and the state appellate court contravened or unreasonably applied Supreme Court precedent in rejecting his claim on direct appeal, his claim is cognizable on federal habeas review. The Court therefore denies Respondent's motion to dismiss this claim on cognizability grounds.

(Id. at 14.) With regard to Ground Three, the Court explained:

Respondent argues Person's third ground for relief, asserting his convictions were against the manifest weight of the evidence, also is not cognizable on federal habeas review. (Doc. No. 7 at 18-20.) Person also raised this claim to the state appellate court on direct appeal, which adjudicated it on the merits. See Person, 2016 WL 756930, at *2-5.
It is well-settled that claims regarding the manifest weight of the evidence are based on state law, which federal habeas courts may not review. See, e.g., Walker v. Engle, 703 F.2d 959, 969 (6th Cir. 1983) (Due Process Clause does not provide relief for defendants whose convictions are against the manifest weight of the evidence, but only for those convicted without sufficient proof to allow a finding of guilty beyond a reasonable doubt). In Nash v. Eberlin, 258 Fed.Appx. 761, 765 n.4 (6th Cir. 2007), however, the Sixth Circuit liberally construed a pro se habeas petitioner's manifest-weight-of-the-evidence claim to be a sufficiency- of-the-evidence claim. The court found that Ohio courts had “adequately passed upon” the petitioner's sufficiency claim because the “determination by the Ohio Court of Appeals that the conviction was supported by the manifest weight of the evidence necessarily implies a finding that there was sufficient evidence.” Id. at 765.
As will be explained below, Person seeks to amend his petition to add a sufficiency claim, and is entitled to do so. Applying Nash, therefore, rather than dismiss Person's manifest-weight claim, the Court will consider it subsumed under his new sufficiency ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.