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Wilson v. Coleman

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

March 26, 2019

DWAYNE WILSON, Petitioner,
v.
JOHN COLEMAN, Warden Respondent.

          JACK ZOUHARY JUDGE.

          REPORT & RECOMMENDATION

          Jonathan D. Greenberg United States Magistrate Judge.

         This matter is before the magistrate judge pursuant to Local Rule 72.2. Before the Court is the Petition of Dwayne Wilson (“Wilson” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Wilson is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the Cuyahoga County case State v. Wilson, CR-14-590113-A. For the following reasons, the undersigned recommends the Petition be DISMISSED.

         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 Wilson's conviction as follows:

{¶ 2} The Cuyahoga County Grand Jury returned a 14-count indictment charging Wilson with: (1)-(2) rape, R.C. 2907.02(A)(2), (3) kidnapping, R.C. 2905.01(A)(4), (4)-(5) rape, R.C. 2907.02(A)(2), (6) kidnapping, R.C. 2905.01(A)(4), (7)-(8) rape, R.C. 2907.02(A)(2), (9) kidnapping, R.C. 2905.01(A)(4), (10) rape, R.C. 2907.02(A)(2), (11) kidnapping, R.C. 2905.01(A)(4), (12)-(13) rape 2907.02(A)(2), and (14) kidnapping, R.C. 2905.01(A)(4).
{¶ 3} Am.Sub.S.B. No. 2 (“S.B. 2”), 146 Ohio Laws, part IV, 7136, became effective on July 1, 1996, and H.B. 86 became effective on September 30, 2011. Counts 1 through 9 alleged offenses occurring before S.B. 2 became effective, and Counts 10 through 14 alleged offenses occurring after S.B. 2 became effective.
{¶ 4} The state dismissed Counts 7, 8, and 9 before trial. The matter proceeded to a jury trial on the remaining 11 counts. At the close of trial, the jury found Wilson guilty of rape as charged in Counts 1, 2, 4, 5, 10, 12, and 13. Furthermore, the jury found Wilson guilty of kidnapping as charged in Counts 3, 6, 11, and 14. Regarding Counts 10, 11, 12, 13, and 14, the trial court found Wilson to be a sexual predator pursuant to H.B. 180.
{¶ 5} At sentencing, the trial court imposed a definite prison term of ten years on Counts 1 through 6, and imposed a prison term of life with parole eligibility at ten years on Counts 10 through 14. The trial court ordered Wilson to serve all counts consecutively, for an aggregate prison term of 110 years to life. The trial court credited Wilson with 166 days of time served.

State v. Wilson, 51 N.E.3d 676, 679 (Ohio 8th App. Dist. Apr. 28, 2016).

         II. Procedural History

         A. Trial Court Proceedings

         On October 9, 2014, a Cuyahoga County Grand Jury indicated Wilson with (1) nine counts of rape in violation of Ohio Rev. Code (“O.R.C.”) §2907.02(A)(2) (Counts One, Two, Four, Five, Seven, Eight, Ten, Twelve, Thirteen) and (2) five counts of kidnapping in violation of ORC §2905.01(A)(4) (Counts Three, Six, Nine, Eleven, Fourteen). (Doc. No. 7-1, Exh. 1.) Wilson entered pleas of not guilty to all charges. (Doc. No. 7-1, Exh. 2.) Prior to trial, Counts Seven, Eight, and Nine were dismissed without prejudice. (Doc. No. 7-1, Exh. 5.)

         On February 7, 2015, Wilson, through counsel, filed Motion to Sever Counts for Trial. (Doc. No. 7-1, Exh. 3.) The State filed a Brief in Opposition. (Doc. No. 7-1, Exh. 4.) The state trial court denied this motion. (Doc. No. 8 at Tr.16.)

         The case proceeded to jury trial on February 11, 2015. (Id. at Tr. 4.) Pursuant to Ohio Crim. R. 29, Wilson moved for an acquittal at the close of the State's case, which the trial court denied. (Id. at Tr. 910-911.) Wilson renewed his Ohio Crim. R. 29 Motion after the defense rested and the state trial court again denied the motion. (Id. at Tr. 919.) On February 19, 2015, the jury returned its verdict, finding Wilson guilty of all remaining charges (Counts One, Two, Three, Four, Five, Six, Ten, Eleven, Twelve, Thirteen, Fourteen). (Doc. No. 7-1, Exh. 5.)

         On April 1, 2015, the state trial court held a sentencing hearing. The trial court sentenced Wilson to ten years each for Counts One, Two, Three, Four, Five, and Six and to life with parole eligibility after 10 years each for Counts Ten, Eleven, Twelve, Thirteen, and Fourteen. (Doc. No. 7-1 Exh. 7.) The trial ordered for the sentences to be served consecutively, for an aggregate sentence of 110 years. (Id.) The trial court also found Wilson was a sexual predator pursuant to H.B. 180. (Id.)

         B. Direct Appeal

         On April 17, 2015, the State filed a notice of appeal to the state appellate court. (Doc. No. 7-1, Exh. 8.) The State raised the following assignment of error:

I. Because Defendant-Appellee committed his offenses prior to July 1, 1996, the trial court erred when it sentenced Defendant-Appellee under sentencing provisions effective July 1, 1996 and H.B. 86 provisions effective September 30, 2011.

(Doc. No. 7-1, Exh. 12.)

         On June 17, 2015, Wilson, through counsel, filed a Motion for Delayed Appeal with the state appellate court. (Doc. No. 7-1, Exh. 10.) The state appellate court granted this Motion. (Doc. No. 7-1, Exh. 11.) That same date, Wilson filed an Amended Notice of Appeal/Cross Appeal with the state appellate court. (Doc. No. 7-1, Exh. 9.) In his appellate brief, Wilson raised the following assignments of error:

I. The trail court erred in imposing a sentence under the statutory sentencing scheme in effect at the time of the offense in 1993.
II. The trial court erred by denying Appellee Cross-Appellant's Motion to Sever Trial of Offense the Offenses Charged.
III. The trial court erred by not dismissing cross-appellant's Motion to Dismiss his Indictment for Pre-Indictment Delay.

(Doc. No. 7-1, Exh. 13.) The State filed a brief in response. (Doc. No. 7-1, Exh. 14.) On April 28, 2016, the state appellate court affirmed Wilson' convictions. (Doc. No. 7-1, Exh. 15.)

         On June 13, 2016, the State filed a Notice of Appeal with the Supreme Court of Ohio. (Doc. No. 7-1, Exh. 16.) The State raised the following Proposition of Law:

A defendant who commits an offense prior to July 1, 1996 is subject to law in effect at the time of the offense and not subject to sentencing provisions of H.B. 86 effective September 30, 2011.

(Doc. No. 7-1, Exh. 17.)

         On July 25, 2015, Wilson, proceeding pro se, filed a Motion for Leave to File a Delayed Appeal and a Notice of Appeal with the Supreme Court of Ohio. (Doc. No. 7-1, Exh. 18, 19.) Within his Motion for Leave, Wilson explained he had filed a Notice of Appeal within the forty-five day time “limit, but [he] received [his] date stamped original and copy back with a letter from one of the Deputy Clerks stating that [he] did not include an notarized affidavit og[sic] indigency.” (Doc. No. 7-1, Exh. 19.) Wilson raised the following Propositions of Law:

I. The trial court erred by denying Appellant's Motion to Sever Trial(s) of the offense(s) charged. And the Eighth District Court of Appeals erred in siding with the trial court.
II The trial court erred by not dismissing Appellant's Motion to Dismiss his indictment for pre-indictment delay.

(Id.) The State did not file a response.

         On September 14, 2016, the Supreme Court of Ohio denied Wilson's Motion for Leave to File a Delayed Appeal. (Doc. No. 7-1, Exh. 20.) On November 23, 2016, the Supreme Court of Ohio declined to accept jurisdiction of the State's appeal pursuant to S.Ct. Prac.R. 7.08(B)(4). (Doc. No. 7-1, Exh. 21.)

         C. Post-Conviction Filings

         On August 20, 2015, Wilson filed a pro se Petition to Vacate or Set Aside Judgment of Conviction or Sentence with the state trial court. (Doc. No. 7-1, Exh. 22.) This Petition raised the following arguments:

I. Defendant was denied his right to a Constitutional Right Sixth Admenment[sic] a fast and speedy trail because he was not brought before this court after 180 day(s)
II. Defendant was denied Constitutional Right to Fifth and Fourteenth Amendment to Due Process, Submitted 2941.40 in a timely fashion.
III. Defendant was denied constitutional right(s) to the Fifth and Fourteenth, and the Eighth Amendment(s). DUE PROCESS; CRUEL AND UNUSUAL PUNISHMENT.
Petitioner was declared to be a sexual predator by determination of the Cuyahoga County Psychologist, and Court(s) and sentenced under the Ohio State Statute(s) accordingly. At no time has the Cuyahoga County Court(s) allowed the petitioner the opportunity to be examined by any independent psychologist/psychiatrist. Sexual disorder(s) fall under the realm of Mental Health. By not allowing this petitioner access to either his own independent evaluation, and or treatment(s) in lieu of conviction, as with similar mental health issue(s), drug(s) and alcohol, anger management, etc., this petitioner has been in fact discriminated against.

(Id.) The state trial court denied this Petition on September 1, 2015. (Doc. No. 7-1, Exh. 23.)

         On October 30, 2015, Wilson, proceeding pro se, filed a “Motion for Delayed Appeal with Mitigating Circumstances” and “Motion to Provide Defendant Proper Notice.” (Doc. No. 7-1, Exh. 31.) The state trial court denied both Motions as moot on November 16, 2015. (Id.)

         On February 28, 2017, Wilson filed another pro se Petition to Vacate or Set Aside Judgment of Conviction or Sentence with the state trial court. (Doc. No. 7-1, Exh. 24.) This Petition raised the following arguments:

I. Petitioner/Def. Was denied due process and protection from double jeopardy under: United States Constitution Fifth (5) Amendment, and Ohio Constitution Article I, Section Ten (10), as well as Ohio Revised Code 2943.09.
II. Petitioner/Def. Was denied due process via compulsory process, and suffered cruel and unusual punishment under: United States Constitution Sixth (6) Amendment, Eighth (8) Amendment, Fourteenth (14) Amendment, Section One (1); Ohio Constitution Article I, Section(s) Nine (9) and Ten (10); American(s) ...

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