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Garrison v. Gray

United States District Court, S.D. Ohio, Eastern Division, Columbus

June 7, 2019

STEPHEN M. GARRISON, Petitioner,
v.
DAVID GRAY, Warden, Belmont Correctional Institution, Respondent.

          Edmund A. Sargus, Jr. Chief Judge

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE

         This is a habeas corpus case brought pro se by Petitioner Stephen M. Garrison to obtain relief from his conviction for aggravated burglary in the Muskingum County Court of Common Pleas. The case is before the Court for decision on the merits on the Petition (ECF No. 3), the State Court Record (ECF No. 7), the Return of Writ (ECF No. 8), Petitioner's Traverse (ECF No. 11), the Warden's response to the Traverse (ECF No. 12), the Petitioner's Supplemental Response (ECF No. 17), and the Warden's reply to the Supplement (ECF No. 18).

         The Magistrate Judge reference in this case was recently transferred to the undersigned to help balance the Magistrate Judge workload in the District (ECF No. 19).

         Litigation History

         Garrison was indicted by the Muskingum County, Ohio, Grand Jury on January 12, 2017, on one count of domestic violence and one count of aggravated burglary (Indictment, State Court Record, ECF No. 7, Ex. 1, PageID 90-91). A trial jury found him not guilty of domestic violence but guilty on the burglary count and he was sentenced to eleven years imprisonment. Garrison appealed, but the conviction and sentence were affirmed. State v. Garrison, 5th Dist. Muskingum No. CT2017-0034, 2018-Ohio-1048 (. Mar. 22, 2018); appellate jurisdiction declined, 153 Ohio St.3d 1442 (2018). On September 26, 2018, Garrison filed his Petition in this Court[1], pleading the following grounds for relief:

Ground One:
The Petitioner's Sixth Amendment to the United States Constitution (along with analogous State constitutional guarantees) rights were violated when the criminal felony state trial court admitted hearsay testimony which prevented Petitioner from the constitutional right to confront witnesses in violation of the Confrontation Clause.
Supporting Facts:
The trial court admitted testimony that is considered hearsay which violates Garrison's Sixth Amendment right to confront witnesses against him and or cross-examine them.
Specifically, Deputy Hamilton and Deputy Williams testified at trial as to statements that were supposedly made by Nikki Dickinson and Brian Hohnwald.
Garrison argued that the admission of these statements was in direct violation of the primary purpose of the confrontation clause which did not ensure Garrison's right of cross-examination, this argument was raised on direct appeal and to the state's highest court.
This right is a procedural guarantee that ensures that the reliability of testimony be tested by cross-examination. When Garrison was unable to cross-examine the statements the deputies introduced it fundamentally violated Garrison's Sixth Amendment to the U.S. Constitution. When the trier-of-fact, in this case the jury, was not afforded an opportunity to evaluate the truth of prior statements, denying them the accuracy of truth determining process in criminal trials it violated the Confrontation Clause contained in the Sixth Amendment. The Confrontation privilege of the Sixth Amendment provides ample opportunity for both the defendant to cross[-]examine witnesses and for the jury to observe witnesses. It is commonly held that the defendant to cross-examine witnesses is an indispensable ingredient, while the right for the jury to observe witnesses is an incidental advantage.
Garrison's Sixth Amendment's right to confront witnesses against him is a fundamental right essential to a fair trial and is made obligatory on states by the due process clause of Fourteenth Amendment; confrontation clause of Sixth Amendment is thus enforceable against states under Fourteenth Amendment according to same standards which protect right to confrontation against federal encroachment.
Garrison asserts that his Sixth Amendment right to confront witnesses against him was violated by the admission into evidence of statements made by Nikki Dickinson and Brian Hohnwald through the testimony of Deputies Hamilton and Williams.
On direct appeal, the Fifth Appellate District reviewed this issue and incorrectly determined that as Garrison's trial attorney did not raise this issue in the form of an objection that it was somehow not preserved for review on the merits, but was reviewed under the guise of plain error. Yet, in this case, Petitioner's counsel did object asserting a ‘Confrontation Clause' objection.
The Appellate Court held that the objection as raised was untimely, which presents a prima facie example of ineffective assistance of counsel, which is a violation of yet another Constitutional Amendment to effective counsel in violation of Petitioner's Sixth Amendment guarantees.
The Appellate Court did review the error under the standard of review for plain error. The Ohio Supreme Court has clarified this standard and stated in summary that the error must be obvious, that it affected substantial rights and that it must have affected the outcome of the proceedings.
The testimony of any detective or police officer holds substantial weight with any jury. Thus, when the deputies testified and Garrison could not cross examine those statements, it established a set of facts that are wildly inaccurate and violates Garrison's Sixth and Fourteenth Constitutional Amendments (along with violations of Section 10, Article I of the Ohio Constitution).
Ground Two:
The Petitioner was deprived of the effective assistance of counsel contrary to the State and Federal Constitutions, guaranteed by the Sixth Amendment and Article 10, Section 1 of the Ohio Constitution.
Supporting Facts:
The Sixth Amendment to the United States Constitution, made applicable to the States by and through the Fourteenth Amendment to the United States Constitution and guaranteed by Article 10, Section I of the Ohio Constitution provides that a criminal defendant has the right to effective assistance of counsel.
Petitioner's trial counsel was ineffective in his representation at Garrison's trial. There are multiple instances where counsel failed to perform his duties. Petitioner recognizes that the long held [sic] interpretations of Strickland v. Washington are arduous, yet, Petitioners counsel fell below an objective standard of reasonable representation and those errors resulted in the fact that the proceedings would have been different.
From Ground One, it is apparent that Garrison's counsel failed to raise an objection on the Confrontation Clause at the exact moment it happened. Counsel did assert this objection later, which fundamentally changed the outcome of the trial because if Garrison prevailed on that objection it would have changed the trial.
Counsel did not file a motion in limine seeking to limit statements of witnesses as well as prior bad act evidence known to counsel.
Counsel was ineffective in failed to file a motion to suppress statements Garrison made to law enforcement officials.
Counsel never attempted to focus the jury pool's attention on the State's burden of proof and waive[d] an opening statement where counsel could have focused the jury on the State's burden of proof.
Counsel failed to use peremptory challenges to excuse jurors who may have been biased.
Counsel failed to object to out of court statements on the basis of violation of the Confrontation Clause (which is contained in Ground One of this Petition).
Counsel on cross continued to ask a series of question to Deputy Hamilton which allowed him to continue to testify as it relates to this out of court statements.
Counsel failed to object when Deputy Hamilton spoke about the element of the offense, namely “fleeing[.]” Counsel was ineffective when counsel opened the door to admission of the statements of Brian Hohnwald when counsel asked Deputy Williams if anyone he spoke to told him they witnessed a physical interaction between Garrison and Dickinson (the alleged victim).
Counsel was ineffective because counsel should have objected to Williams' testimony (when Hohnwald told Williams that Garrison kicked the door in, when Williams' [sic] never saw this event take place).
Counsel should have continued to object to the prosecutor's characterization of the evidence regarding “fleeing” and Garrison's intent to “confront” Wilt at the residence.
Counsel erred in failing to object to the court instructing the jury they could consider fleeing as evidence of guilt.
Counsel was ineffective in failing to request lesser-included offense instruction.
Over and over again Garrison's counsel failed to perform her duties in representing her client. It is clear from the record that there isn't just one instance of ineffective assistance but the calumniation [sic] of numerous instances of ineffectiveness. This fundamentally changed the outcome of the trial.
Ground Three:
The Petitioner's guilty verdict for aggravated burglary does not meet the sufficiency of the evidence and is contrary to law.
Supporting Facts:
Petitioner raised this issue on appeal, stating that his guilty verdict for aggravated burglary is against the manifest weight of the evidence and is contrary to law. Appellate Counsel indicated that the jury clearly lost their way and in doing so created a manifest miscarriage of justice that should reverse Petitioner's conviction and a new trial ordered.
The undersigned agrees that this Court would lack jurisdiction to consider this claim challenging the weight of the evidence because it raises a state-law issue that does not implicate federal constitutional concerns. The contents of Petitioner's ground were raised on direct appeal, in that they were argued as sufficiency-of-evidence even though they were characterized in summary to state “manifest weight of the evidence[.]” Appellate Counsel did state that the resulting conviction is a manifest miscarriage of justice, which would waive any and all procedural defaults that may be asserted by the Respondent.
While there is a difference between “manifest weight of the evidence” and sufficiency-of-the evidence, appellate counsel on appeal incorporate a sufficiency of the evidence argument. Moreover, this ground includes an issue of due process, which is subject to review on the merits. Petitioner did not default the sufficiency-of-evidence claim that was raised to and considered by the Ohio Court of Appeals even though as he referred to the issue in his memorandum in support of jurisdiction on further appeal to the Ohio Supreme Court.
Petitioner was convicted of aggravated burglary in violation of R.C. 2911.1 l (A)(1):
“(A) No. person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply:
(1) The offender inflicts, or attempts or threatens to inflict physical harm on another[.]” Petitioner asserts and argued that the evidence does not demonstrate he entered the apartment with purpose to commit a criminal offense, and further does not demonstrate he inflicted physical harm, or attempted or threatened to inflict physical harm.
Petitioner becaue [sic] the jury found him not guilty of domestic violence, they rejected the testimony that he struck Dickinson with the box of marbles, and therefore the finding he inflicted, or attempted or threatened to inflict, physical harm is against the manifest weight of the evidence or does not meet the sufficiency of the evidence standard, either legal or factual sufficiency.
Specifically, R.C.2919.25(A) defines the offense of domestic violence as, “No person shall knowingly cause or attempt to cause physical harm to a family or household member.” Household member is defined by R.C.2919.25(F): (F) As used in this section and sections 2919.251 and 2919.26 of the Revised Code:
(1) "Family or household member" means any of the following:
(a) Any of the following who is residing or has resided with the offender:
(i) A spouse, a person living as a spouse, or a former spouse of the offender;
(ii) A parent, a foster parent, or a child of the offender, or another person related by consanguinity or affinity to the offender;
(iii) A parent or a child of a spouse~ person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender.
(b) The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.
(2) “Person living as a spouse” means a person who is living or has lived with the offender in a common law marital relationship, who otherwise is cohabiting with the offender, or who otherwise has cohabited with the offender within five years prior to the date of the alleged commission of the act in question.
Petitioner's trial counsel raised a Crim. R. 29 motion for a directed verdict of acquittal and the evidence was insufficient to establish the elements of the offense of domestic violence and likewise, the elements to convict for aggravated burglary were not present either.
This argument was addressed on direct appeal and to the Ohio Supreme Court in the memorandum in support of jurisdiction as a sufficiency of the evidence argument.
Petitioner was denied due process when he was convicted of Aggravated Burglary despite that the elements of the offense were not present.
Ground Four:
The trial court erred when it imposed the maximum consecutive sentence of eleven years in violation of the Sixth Amendment as well as due process violations arising from the trial court's failure to afford him the protections of Ohio law when imposing a maximum sentence.
Supporting Facts:
Petitioner was denied his Sixth Amendment rights and was denied due process when the trial court sentenced Garrison to an illegal sentence under Ohio law as his sentence constituted the maximum possible sentence for these convictions without the requisite findings by the trial court.
Ohio Revised Code [§] 2953.08(G)(2) sets forth the standard of review for all felony sentences in Ohio. Under this code the appellate courts may increase, reduce or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing.
At sentencing the trial court has a duty to consider the principles and purposes of sentencing, to essentially balance the factors as required by Ohio Revised Code [§§] 2929.11, 2929.12 and 2929.14 prior to imposing a consecutive sentence, in Petitioner's case, the trial court failed to do so. The trial court fails to perform this function even if they provide “lip service” by using the “magical words” when imposing sentence.
Garrison filed a direct appeal as to this issue. The Appellate Court entered into a fact finding expedition and was able to find that there are possible relevant factors to support the imposition of this sentence based on Petitioner's extensive criminal history and a history of probation violations. Nevertheless, this is a Due Process violation. The trial court is required to make these findings prior to imposing sentence, not after and certainly not by an appellate court.
The record that was considered by the trial court does not support the sentencing court's findings, and the sentence is otherwise contrary to law. Petitioner has shown by clear and convincing evidence that the trial court erred and violated his Sixth Amendment rights as well as Due Process violations.

(Petition, ECF No. 3, PageID 67-68, 70-71, 73-74, 77.)

         Analysis

         Ground One: Violation of the Confrontation Clause

         In his First Ground for Relief, Garrison argues Sixth Amendment right to confront the witnesses against him was violated when the trial court allowed Deputy Sheriffs Hamilton and Williams to testify to statements made to them on the scene by Nikki Dickinson and Brian Hohnwald.

         Garrison asserts this testimony also violated his rights under analogous provisions of the Ohio Constitution. Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). Therefore, this Court will not consider the alleged violations of the Ohio Constitution.

         As to Ground One, Respondent raises the affirmative defense that it is procedurally defaulted (Return, ECF No. 8, PageID 351). Petitioner responds that either there was no procedural default or he can show cause and prejudice to excuse it or not to hear this claim on the merits would work a manifest miscarriage of justice (Traverse, ECF No. 11, PageID 391-407, supported by 111 single-spaced endnotes, PageID 434-520.)

         The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Engle v. Isaac, 456 U.S. 107, 110 (1982); Wainwright v. Sykes, 433 U.S. 72 (1977). “Absent cause and prejudice, ‘a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review.'” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000) (quoting Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.

[A] federal court may not review federal claims that were procedurally defaulted in state court-that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is an important “corollary” to the exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address” the merits of “those claims in the first instance.” Coleman, 501 U.S., at 731-732, 111 S.Ct. 2546, 115 L.Ed.2d 640. The ...

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