United States District Court, N.D. Ohio, Western Division
LAMAR A. FITZGERALD, Petitioner,
MARK HOOKS, WARDEN, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE
J. LIMBERT UNITED STATES MAGISTRATE JUDGE
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.
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.
following reasons, the undersigned RECOMMENDS that the Court
DISMISS Petitioner's federal habeas corpus petition in
its entirety with prejudice.
SYNOPSIS OF THE FACTS
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.
State Trial Court
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.
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.
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
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.
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
Ohio Supreme Court
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
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 ...