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Fitzgerald v. Hooks

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

May 17, 2019

LAMAR A. FITZGERALD, Petitioner,
v.
MARK HOOKS, WARDEN, Respondent.

          JACK ZOUHARY JUDGE

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT UNITED STATES MAGISTRATE JUDGE

         On May 26, 2017, Lamar Fitzgerald (“Petitioner”), pro se, executed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was filed with this Court on June 5, 2017. ECF Dkt. #1. He seeks relief for alleged constitutional violations that occurred during his Allen County, Ohio Court of Common Pleas convictions for four counts of Unlawful Sexual Conduct with a Minor and one count of Trafficking in Cocaine. Id.

         On September 29, 2017, Respondent Warden of the Ross Correctional Institution in Chillicothe, Ohio, filed an Answer/Return of Writ. ECF Dkt. #8. On October 16, 2017, Petitioner filed a Traverse. ECF Dkt. #10.

         For the following reasons, the undersigned RECOMMENDS that the Court DISMISS Petitioner's federal habeas corpus petition in its entirety with prejudice.

         I. SYNOPSIS OF THE FACTS

         At the state appellate court level, Petitioner filed his notice of direct appeal. ECF Dkt. #8-1 at 32. Petitioner's counsel thereafter filed a motion for leave to withdraw from representation pursuant to Anders v. California, 386 U.S. 738 (1967). ECF Dkt. #8-1 at 38-58. The Ohio Third District Court of Appeals dismissed Petitioner's appeal and granted counsel's motion to withdraw. ECF Dkt. #8-1 at 114-117. The Ohio appellate court did not set forth the facts of this case on direct appeal. However, the appellate court stated: “The record as it relates to the motion to suppress, including the transcripts of both the suppression hearing and the trial, indicates that the trial court properly ruled upon that motion and permitted the State to introduce the evidence at appellant's trial.” Id. at 115-116.

         II. PROCEDURAL HISTORY

         A. State Trial Court

         On April 16, 2015, an Allen County Grand Jury issued an indictment charging Petitioner with four counts of Unlawful Sexual Conduct with a Minor, in violation of Ohio Revised Code (“ORC”) §2907.4(A) and (B)(1)) and one count of Trafficking in Cocaine, in violation of ORC §2925.03(A)(1) and (C)(4)(a)). ECF. Dkt. #8-1, at 3-5. On August 18, 2015, Petitioner, through counsel, filed a motion to suppress evidence obtained from his telephone conversations that were recorded during his incarceration in the Allen County jail. ECF. Dkt. #8-1 at 7-10. Following a hearing, the trial court denied Petitioner's motion to suppress. ECF. Dkt. #8-1 at 16-19. On September 9, 2015, Petitioner executed a waiver of his right to a jury trial and elected to be tried before the court. ECF. Dkt. #8-1 at 20. During the bench trial, Petitioner elected to represent himself pro se with shadow counsel present at trial. ECF Dkt. #8-1 at 23.

         On September 23, 2015, the trial court found Petitioner guilty on all counts. Id. at 21-24. On September 23, 2015, the court imposed a sentence of 15 months incarceration on each of the four counts of Unlawful Sexual Conduct with a Minor and 12 months for the count of Trafficking in Cocaine. Id. at 25-31. The court ordered all sentences to be served consecutively to each other and consecutive to his sentence in a prior, unrelated case. ECF. Dkt. #8 Ex. 6.

         B. Direct Appeal

         On September 28, 2015, Petitioner filed a timely notice of appeal to the Third District Court of Appeals, Allen County. ECF Dkt. # 8-1 at 32. On June 13, 2016, appellate counsel for Petitioner filed a motion to withdraw from representation pursuant to Anders v. California, 386 U.S. 738 (1967), believing there were no meritorious issues upon which an assignment of error would be properly presented to the appellate court. ECF Dkt. # 8-1 at 38-58. On July 20, 2016, Petitioner, pro se, filed his appellate brief and asserted the following assignments of error:

1. The trial court committed plain error by allowing into evidence the fruit of the search prompted by the improper use of county sheriff recordings by the Lima City Police.
2. The trial court erred as a matter of law in ruling against the Appellant's motion to suppress the phone recordings of his call from the Allen County Jail as the search by Lima Police of these records was overly broad and amounted to a “fishing expedition.” 3. The trial court committed plain error in allowing hearsay evidence to be entered into the record with respect to the sibling of the alleged victim's recollection of a conversation between her and the Appellant regarding disclosure of the alleged victim's age.
4. The State failed to provide sufficient evidence to convict Appellant of the crime of unlawful sexual conduct with a minor as it failed to introduce into evidence documentation as to the age of the alleged victim of the offense, thus failing to prove every element of the crime.
5. The State failed to prove all the elements of the crime, including Appellant's alleged reckless behavior, thus the resulting conviction on the charge of unlawful sexual conduct with a minor was against the manifest weight of the evidence.

ECF Dkt. #8-1 at 94-113.

         On September 8, 2016, the Ohio appeals court addressed the motion to withdraw by Petitioner's counsel and addressed Petitioner's pro se assignments of error. Id. at 114. The court found that there were no arguable issues and declared Petitioner's appeal to be wholly frivolous. Id. at 116. Accordingly, the court dismissed the appeal and granted the motion to withdraw. Id. at 116-117.

         C. Ohio Supreme Court

         On October 13, 2016, Petitioner, pro se, filed a notice of appeal to the Supreme Court of Ohio. ECF Dkt. #8-1 at 118-119. In his memorandum in support of jurisdiction, Petitioner raised the following propositions of law:

Proposition of Law 1: When does law enforcement, an employee of a separate subdivision not from the County jail institution and not affiliated with its operations or security, have the lawful/legal right to intercept, access, or review inmate telephone call recordings for criminal investigations without judicial authorization or subpoena? 18 U.S.C.A. §§2510-2520.
Proposition of Law 2: Does a trial court err as a matter of law in allowing admission of evidence obtained by an overreaching warrantless search of electronic recordings? Fourth Amendment to the United States Constitution.
Proposition of Law 3: If Appellant did not engage in reckless behavior, or know the age of the alleged victim at the time of the alleged crime, was the mens rea requirement met for ...

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