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Ayers v. Marquis

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

March 8, 2019

ADRIAN AYERS, Petitioner,
v.
WARDEN DAVE MARQUIS, Respondent.

          DAN AARON POLSTER JUDGE.

          REPORT & RECOMMENDATION

          Kathleen B. Burke United States Magistrate Judge.

         Petitioner Adrian Ayers, (“Petitioner” or “Ayers”) brings this habeas corpus action pursuant to 28 U.S.C. § 2254. Doc. 1. Ayers is detained at the Richland Correctional Institution, having been found guilty by a Cuyahoga County, Ohio, Court of Common Pleas jury of 11 counts of money laundering, 10 counts of telecommunications fraud, 3 counts of theft, 1 count of misuse of credit cards, 1 count of forgery, and 3 counts of identity fraud. State v. Ayers, No. CR-16-607500-A (Cuyahoga Cty. Common Pleas Ct., filed November 2, 2016). At sentencing, the trial court merged the applicable counts and sentenced Ayers to seven years in prison for identity fraud and 24 months for money laundering, to be run consecutively, and 12 months for misuse of a credit card, to be run concurrently, for a total of 9 years in prison. Doc. 6-1, pp. 28-29.

         On July 9, 2018, Ayers filed a Petition for Writ of Habeas Corpus setting forth two grounds for relief. Doc. 1. He also filed a Motion for Partial Summary Judgment as to Ground One (Doc. 5), a Motion to Compel the Production of Documents (Doc. 16), and a Motion for Leave to Supplement his Petition (Doc. 21). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2. As set forth more fully below, Ground One is not cognizable and Ground Two is procedurally defaulted. Thus, the undersigned recommends that Ayers' Petition for Writ of Habeas Corpus be DISMISSED. His Motion for Partial Summary Judgment and his Motion to Supplement Petition should be DENIED. His Motion to Compel the Production of Documents (Doc. 16) is DENIED.

         I. Background

         In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, the state court's factual findings are presumed correct. 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Railey v. Webb, 540 F.3d 393, 397 (6th Cir. 2008).

         The following summary of underlying facts is taken from the opinion of the Cuyahoga County Court of Appeals, Eighth Appellate District of Ohio:

{¶ 1} Defendant-appellant Adrian Ayers and a codefendant, Quintard Brown, engaged in a scheme where Brown made in-store credit card applications by using a fraudulent driver's license, used those credit cards to buy thousands of dollars of merchandise, and then sold the merchandise to Ayers at a huge discount. Ayers's actions caused a jury to find him guilty of 11 counts of money laundering; 10 counts of telecommunications fraud; theft; misuse of credit cards; and 3 counts of identity fraud.
{¶ 4} The state's evidence showed that an elderly man (some of the counts contained an elderly person specification) discovered that several retail merchants issued credit cards in his name based on in-store applications that were not made by him. Those applications were made by Brown, who used a driver's license that contained the elderly man's name and address, but Brown's photograph and vital statistics. Ayers did not dispute that he was present when the fraudulent credit card applications and subsequent purchases were made over four successive days-security video showed Ayers leaving some of the stores with merchandise that had been purchased with the fraudulently obtained credit cards, and cell phone tracking data placed him “in the vicinity” where other credit card applications and sales transactions occurred. Those stores were located throughout the county.
{¶ 5} The driver's license that Brown used when applying for credit listed a driver's license number that belonged to a person who was a customer of Ayers's business. During the course of their investigation, the police drove past Ayers's place of business and, on “numerous occasions, ” saw a car belonging to the person whose driver's license number had been used on the fraudulent driver's license.

State v. Ayers, 2017 WL 3084815, at *1 (Oh. Ct. App. July 20, 2017).

         A. Trial Court

         On June 30, 2016, a Cuyahoga County, Ohio grand jury indicted Ayers on ten felony telecommunications fraud charges, R.C. 2913.05(A), fifteen third-degree felony money laundering charges, R.C. 1315.55(A)(3), eight first-degree misdemeanor theft/petty theft charges, R.C. 2913.02(A)(1), three fifth-degree felony theft charges, R.C. 2913.02(A)(1), one fourth-degree felony misuse of credit cards charge, R.C. 2913.21(B)(2), five fifth-degree felony forgery charges, R.C. 2913.31(A)(3), one second-degree felony identity fraud charge with an elderly victim specification, R.C. 2913.49(B)(1), one second-degree felony identity fraud charge with an elderly victim specification, R.C. 2913.49(B)(2), and one second-degree felony identity fraud charge with an elderly victim specification, R.C. 2913.49(C). Doc. 6-1, pp. 4-24.

         Prior to trial, upon the state's motion, the trial court dismissed the misdemeanor theft charges, four money laundering charges, and four forgery charges. Doc. 6-1, p. 27; Doc. 6-2, p. 22. The case proceeded to trial and Ayers made oral Ohio Crim.R. 29 motions for acquittal after the state rested its case and after the defense rested, which the trial court denied. Doc. 6-1, p. 26. The jury found Ayers guilty of ten telecommunications fraud charges, eleven money laundering charges, three fifth-degree felony theft charges, one misuse of credit cards charge, one forgery charge, and three identity fraud with elderly victim specification charges. Doc. 6-1, p. 27. The trial court merged the applicable counts and sentenced Ayers to seven years in prison for identity fraud and 24 months for money laundering, to be run consecutively, and 12 months for misuse of a credit card, to be run concurrently, for a total of 9 years in prison. Doc. 6-1, pp. 28-29.

         B. Direct Appeal

         On December 2, 2016, Ayers, through counsel, appealed to the Ohio Court of Appeals. Doc. 6-1, p. 31. In his brief, he raised the following assignment of error:

The jury erred convicting Adrian Ayers since the conviction was against the manifest weight of the evidence and it lacked sufficiency.

Doc. 6-1, p. 40. On July 20, 2017, the Ohio Court of Appeals affirmed Ayers' convictions and sentences. Doc. 6-1, pp. 64-70. Ayers did not file an appeal.

         C. Ohio App.R. 26(B) Application to Reopen

         On October 10, 2017, Ayers, pro se, filed a motion for leave to file a delayed App.R. 26(B) Application with the Ohio Court of Appeals. Doc. 6-1, pp. 71, 142. On October 13, 2017, the Ohio Court of Appeals informed Ayers that a timely Rule 26(B) Application was due by October 18, 2017, and that if he did not file his application by that date, he must show “good cause' for filing an untimely application. Doc. 6-1, p. 76.

         On November 27, 2017, Ayers, pro se, filed a Rule 26(B) Application and an amended Rule 26(B) Application. Doc. 6-1, pp. 77, 85. He alleged appellate counsel was ineffective for failing to raise these claims on direct appeal:

1. Whether the lower court erred when it sentenced Appellant to consecutive sentences when counts were allied.
2. Whether Appellant rights under the Double Jeopardy Clause were violated based on the [illegible] violation of the [illegible] of limitation.

Doc. 6-1, pp. 86-87. Ayers asked the Ohio Court of Appeals to appoint him legal counsel (Doc. 6-1, p. 90), which the court denied (Doc. 6-1, p. 91). Ayers filed a motion to amend his Rule 26(B) Application to add a claim that his appellate counsel was ...


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