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Taylor v. Bracy

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

June 11, 2019

RICHARD TAYLOR, Petitioner,
v.
CHARMAINE BRACY, WARDEN, Defendant.

          JUDGE SARA LIOI

          REPORT & RECOMMENDATION

          THOMAS M. PARKER, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Currently before me is the petition of Richard L. Taylor, Ohio Inmate #A681-426, for a writ of habeas corpus under 28 U.S.C. § 2254.[1] Respondent filed an answer/return of writ.[2] The matter was automatically referred for preparation of a report and recommendation on June 30, 2017.

         On December 11, 2015, the trial court found Taylor not guilty of aggravated burglary as charged in Count One and felonious assault as charged in Count Five; but guilty of aggravated burglary as charged in Counts Two and Three, and guilty of attempted felonious assault, a lesser included offense to the charges in Counts Four and Six.[3] On April 15, 2014, Taylor was sentenced to serve an aggregate prison sentence of four years.[4] Taylor is currently incarcerated at the Toledo Correctional Institution.[5]

         Taylor's petition raises three grounds for relief.[6] On October 5, 2017, respondent filed a return of writ. Taylor filed a traverse on November 27, 2017.[7] Because Taylor's grounds for relief lack merit and are procedurally defaulted, I recommended that his claims be DENIED, and his petition be DISMISSED with prejudice.

         II. Procedural History

         A. State Convictions

         On June 21, 2015, Taylor was indicted on three counts of aggravated burglary under Ohio Rev. Code § 2911.11(A)(2) (Counts One through Three); three counts of felonious assault of Ohio Rev. Code § 2903.11(A)(1) and (2) (Counts Four through Six); and one count of intimidation of crime victim or witness of Ohio Rev. Code § 2921.04(B)(1) (Count Seven). ECF Doc. 7-1at 29. An attorney was appointed to represent Taylor and he pleaded not guilty. ECF Doc. 7-1 at 32.

         Taylor waived his right to a jury trial and the case was tried to the bench. ECF Doc. 7-1 at 33. At the end of the trial, the court granted Taylor's Rule 29 motion for acquittal on Count Seven but denied his motion to dismiss all other counts. ECF Doc. 7-1 at 34. On December 9, 2015, Taylor filed a trial brief on the issue of whether an unenclosed porch on a home met the definitions of an “occupied structure” in Ohio Rev. Code § 2909.01. ECF Doc. 7-1 at 36.

         On December 11, 2015, the trial court found Taylor not guilty of aggravated burglary as charged in Count One; guilty of aggravated burglary as charged in Count Two and Count Three; guilty of attempted felonious assault (regarding harm to Erick Elliott) a lesser included offense of the felonious assault charge in Count Four; not guilty of felonious assault as charged in Count Five; and guilty of attempted felonious assault (regarding harm to Erick Elliott), a lesser included offense of the felonious assault charge in Count Six. ECF Doc. 7-1 at 39.

         The state and Taylor each filed a sentencing memorandum. ECF Doc. 7-1 at 41, ECF Doc. 7-1 at 45. On February 18, 2016, the court merged the aggravated burglary offenses in Counts Two and Three and the attempted felonious assault offense in Count Four; and the state elected to proceed on Count Two for sentencing. The court sentenced Taylor to serve a four-year prison term on Count Two and a thirty-six-month prison term on Count Six. The court ordered the two sentences to be served concurrently for an aggregate sentence of four years. ECF Doc. 7-1 at 49.

         B. Direct Appeal

         The trial court appointed new counsel to represent Taylor on appeal. ECF Doc. 7-1 at 49. Taylor filed a notice of appeal with the Ohio Court of Appeals on February 25, 2016. ECF Doc. 7-1 at 53. Taylor raised the following assignments of error on direct appeal:

         The state of Ohio presented insufficient evidence of accomplice liability.

The state of Ohio presented insufficient evidence of burglary, as it failed to prove that appellant or his co-defendant acted knowingly in the alleged entry of Stallworth's home.
The manifest weight of the evidence did not support any conviction for burglary.
Appellant was improperly convicted of the allied offenses of assault and aggravated burglary on the same victim, when in fact the commission of the assault was a continuing course of conduct leading to entry into the victim's home.

ECF Doc. 7-1 at 66. The Ohio Court of Appeals affirmed the trial court's judgment on December 22, 2016. ECF Doc. 7-1 at 115, State v. Taylor, Eighth Dist. Ohio No. 104284, 2016-Ohio-8311, 2016 Ohio App. LEXIS 5172. Taylor did not file a timely direct appeal of this appellate decision in the Ohio Supreme Court.

         On February 21, 2017, Taylor filed a pro se motion for leave to file a delayed appeal with the Ohio Supreme Court. ECF Doc. 7-1 at 126. He argued his appeal was delayed because, due to his pro se status and lack of legal knowledge, he sent his appeal to the wrong place. He also argued that the delay was due to the Cuyahoga County Clerk of Courts returning his filing via “interdepartmental mail, ” which was much slower than regular mail. ECF Doc. 7-1 at 127. Taylor listed three propositions of law in his motion for leave:

FIRST PROPOSITION OF LAW: Are an appellant's rights to due process and equal protection violated when he is convicted with insufficient evidence of accomplice liability?
SECOND PROPOSITION OF LAW: When the burden of proving every element of the crime has not been met by sufficient evidence, are an appellant's rights to due process violated?
THIRD PROPOSITION OF LAW: Is an appellant denied due process and his right against double jeopardy violated when he is convicted and given separate sentences for allied offenses?

         ECF Doc. 7-1 at 129. On April 19, 2017, the Ohio Supreme Court denied Taylor's motion for a delayed appeal. ECF Doc. 7-1 at 146.

         Taylor moved for reconsideration on May 1, 2017. ECF Doc. 148. The Supreme Court of Ohio denied the motion on June 21, 2017. ECF Doc. 7-1 at 149.

         C. Motions for Judicial Release

         On August 31, 2016, Taylor filed a pro se motion for judicial release. ECF Doc. 7-1 at 150. On October 26, 2016, a special court found Taylor was ineligible for REEC, Cuyahoga County's Re-Entry Court. This entry noted that, if there was a pending motion for general judicial release, the sentencing judge would rule on it. ECF Doc. 7-1 at 158.

         On July 24, 2017, Taylor filed a second pro se motion for judicial release. ECF Doc. 7-1 at 159. The court denied the motion on August 16, 2017. ECF Doc. 7-1 at 167.

         III. Federal Habeas Petition

         On July 28, 2017, Taylor filed his pro se petition for a writ of habeas corpus, raising three grounds for relief:

GROUND ONE: Petitioner's right to Due Process under the Fourteenth Amendment to the U.S. Constitution was violated when he was convicted with insufficient evidence of aggravated burglary as charged in Count 1.
SUPPORTING FACTS: Count 1 of Petitioner's indictment charged him with committing aggravated burglary in violation of O.R.C. 2911.11(A)(2) - that he knowingly trespassed into an occupied structure with purpose to commit in the structure any criminal offense, and had a deadly weapon or dangerous ordnance on or about his person or under his control. It was not conclusively proven that Petitioner ever entered into the occupied structure - i.e., the home of Bryona Stallworth and Erick Elliot. Petitioner accompanied his girlfriend, Shenae Cook, to the home of Stallworth and Elliott at Cook's request. Cook had asked him to record on his phone the confrontation that was to ensue between her and Stallworth. Cook testified that the fight stayed on the porch (outside of the home) and that Petitioner recorded the fight from outside. Stallworth testified that she could only remember seeing Petitioner standing on the porch, and that she did not see him enter into the house. Elliott provided multiple, conflicting stories to the police and jury of the alleged burglary and assault against him by Petitioner. Officer Joseph Hess of the Cleveland Police Department testified that Elliott told him he was knocked down and nearly unconscious immediately, indicating Petitioner never entered the home.
GROUND TWO: Petitioner's right to Due Process under the Fourteenth Amendment to the U.S. Constitution was violated when he was convicted with insufficient evidence of aggravated burglary as charged in Count 2.
SUPPORTING FACTS: Count 2 of Petitioner's indictment charged him with committing aggravated burglary in violation of O.R.C. 2911.11(A)(1) - that he knowingly trespassed into an occupied structure with the purpose to commit in that structure the offense of felonious assault against the female victim, Bryona Stallworth - as was charged in Count 5 of his Indictment. However, in a bench trial he was found not guilty on Count 5.
GROUND THREE: Petitioner was denied Due Process and his right against Double Jeopardy, as provided in the Fifth and Fourteenth Amendments to the U.S. Constitution, when the trial court imposed separate sentences on two separate counts of felonious ...

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