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Prieto v. Schweitzer

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

May 31, 2019

JEVON PRIETO, Petitioner,
v.
TOM SCHWEITZER, Warden Respondent.

          CHRISTOPHER A. BOYKO 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 Jevon Prieto (“Prieto” or “Petitioner”), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Prieto is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the State v. Prieto, Mahoning County No. 2013 CR 00060. 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 Prieto's conviction as follows:

{¶ 3} This case arose while Appellant was a minimum security inmate at the Ohio State Penitentiary (“OSP”) in Youngstown, Ohio. The main building at the OSP houses maximum security offenders and is called a “supermax” prison as it houses the state's worst offenders. (Tr. 27-28). The minimum security facility is a 220-bed dormitory-style detention facility with rows of bunks and open common areas surrounded by a fence. (Tr. 28). The minimum security inmates are permitted contact visitation. (Tr. 32). Visitation occurs by appointment only. (Tr. 29). It does not take place at the minimum security facility.
{¶ 4} To meet their visitors, the inmates are strip-searched at the minimum security prison and then escorted to the sally port at the supermax prison, which is surrounded by a fence with concertina wire. (Tr. 29, 39, 154). A different escort leads the inmates to a visiting room on the fourth floor of the supermax prison. (Tr. 31). On returning to the minimum security prison, the inmates wait in a room while being monitored by a correctional officer until it is their turn to be strip-searched again. (Tr. 33-34). The “strip-out” room has a table separating the correctional officer from the inmate; the inmate removes his clothes and places them on the table for the officer. (Tr. 34-35).
{¶ 5} On January 20, 2011, Appellant was visited by his girlfriend. Thereafter, Appellant was escorted back to the minimum security facility. Correctional Officers Newell and Tanner were in the “strip-out” room, while Correctional Officer Walker watched the inmates waiting to be strip-searched to make sure they did not pass items amongst themselves. (Tr. 145). Officer Newell conducted Appellant's strip-search while Officer Tanner conducted a search of another inmate. (Tr. 64). While Officer Newell was inspecting the inside of one of Appellant's boots, he felt something hard under the insole. (Tr. 65-66, 95). He discovered pills in a twisted bag. (Tr. 65, 67). He noticed three different colors of pills (blue, red, and white) and thought some were shaped like states. (Tr. 66, 97). His report estimated there were between seven and ten pills. (Tr. 85-86).
{¶ 6} Officer Newell showed the pills to Officer Tanner who took them from him. Both officers asked, “What are these?” Moving closer, Appellant replied, “I don't know. What are they?” Officer Newell testified Appellant grabbed the pills from Officer Tanner and threw them in his mouth. (Tr. 68). Officer Tanner testified he lunged over the table at Appellant as the pills moved toward his mouth. The table flipped over. He wrestled him to the floor in an attempt to retrieve the pills. (Tr. 126). Appellant swallowed some pills. (Tr. 68-69).
{¶ 7} Officer Walker testified he entered the room upon hearing the commotion. He recovered two pills from the floor; one was white, and one was pink. (Tr. 147, 150). The pills were tested by a criminalist at the Ohio State Highway Patrol (OSHP) crime lab. The white pill appeared to be Percocet, which contains oxycodone and acetaminophen. (Tr. 107). Testing confirmed the pill contained oxycodone, which is a Schedule II controlled substance that is considered a drug of abuse. (Tr. 108). The pink pill was stamped “USA” and shaped like the continental United States. (Tr. 113). Testing confirmed it contained benzylpiperazine or BZP, which is a Schedule I stimulant compound and is considered a drug of abuse. (Tr. 110-112).
{¶ 8} Appellant said the boots were not his. (Tr. 91-92). He was transported to the medical unit in the supermax prison. Prior to being placed in administrative segregation, Appellant told a lieutenant the boots were not his, but he then asked the lieutenant to place the boots in the “pack-up” with the rest of his possessions during his time in segregation. (Tr. 172, 174). An investigator with the OSHP, who was assigned to the prison, was unable to make contact with Appellant's girlfriend and could not verify her involvement. (Tr. 209-210). Appellant was released from prison in March 2011, and the testing of the pills was completed in November 2011.

State v. Prieto, 2016-Ohio-8480, ¶¶3-8 (Ohio App. 7th Dist. Dec. 16, 2016).

         II. Procedural History

         A. Trial Court Proceedings

         In January 2013, the Mahoning County Grand Jury indicated Prieto with two counts of illegal conveyance of a drug of abuse onto the grounds of a detention facility in violation of Ohio Revised Code (“ORC”) §3719.011 (Counts One and Two) and one count of tampering with evidence, in violation of ORC §2921.12(A)(1)(B) (Count Three). (Doc. No. 9-1, Exh. 1.) Prieto entered pleas of not guilty to all charges. (Doc. No. 9-1, Exh. 2.)

         Jury trial commenced on July 7, 2015. (Doc. No. 9-1, Exh. 3.) Pursuant to Ohio Crim. R. 29, Prieto made a motion for acquittal at the close of the State's case. Prieto, 2016-Ohio-8480 at ¶10. The trial court denied this motion. Id. On July 8, 2015, the jury returned its verdict, finding Prieto guilty of all charges. (Doc. No. 9-1, Exh. 3.)

         On October 7, 2015, the state trial court held a sentencing hearing. The trial court sentenced Prieto to thirty months for Count One, thirty months for Count Two, and thirty months for Count Three. (Doc. No. 9-1, Exh. 4.) The state trial court merged Counts One and Two and ordered the sentences for the merged counts and Count Three to be served consecutively, for an aggregate sentence of sixty months. (Id.)

         B. Direct Appeal

         On November 5, 2015, Prieto, through counsel, filed a timely Notice of Appeal with the Court of Appeals for the Seventh Appellate District (“state appellate court”). (Doc. No. 9-1, Exh. 5). In his appellate brief, Prieto raised the following assignments of error:

I. Appellant's sentence is both contrary to law and an abuse of discretion as the trial court failed to make any of the findings required by R.C. 2929.14(C)(4) prior to imposing consecutive sentences.
II. The trial court denied Appellant his constitutional rights to due process and a fair trial, under the Fourteenth Amendment to the Constitution of the United States by denying Appellants motion for judgment of acquittal when the evidence was insufficient to prove “conveyance onto the grounds, ” an essential element of the offense of Illegal Conveyance of Weapons or Prohibited Items charged in count one and two of the indictment.
III. The trial court denied Appellant his constitutional rights under the Equal Protection Clause of the United States Constitution by allowing the State of Ohio to use a peremptory challenge on the only African American juror on the jury panel without establishing a race neutral explanation for the excusal of the potential juror.

(Doc. No. 9-1, Exh. 6.) The State filed a brief in response. (Doc. No. 9-1, Exh. 7.) On December 16, 2016, the state appellate court affirmed Prieto's convictions, but remanded for re-sentencing because “the trial court failed to make any statutorily-required consecutive sentence findings in the sentencing ...


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