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Terrell v. Sheldon

United States District Court, S.D. Ohio, Western Division, Dayton

June 11, 2019

ANDRE TERRELL, Petitioner,
v.
ED SHELDON, Warden, Mansfield Correctional Institution Respondent.

          Walter H. Rice District Judge

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         In this habeas corpus action under 28 U.S.C. § 2254, Petitioner Andre Terrell, with the assistance of counsel, seeks relief from his convictions on three drug-related charges in the Clark County Court of Common Pleas. The case is ripe for decision on the Petition (ECF No. 1), the Amended State Court Record (ECF No. 6), the Return of Writ (ECF No. 7), and Petitioner's Reply (ECF No. 8).

         Litigation History

         Petitioner was indicted by the Clark County grand jury on August 4, 2015, on one count of Trafficking in Cocaine in violation of Ohio Revised Code §2925.03(A)(2) (Count 1), one count of Possession of Cocaine in violation of Ohio Revised Code §2925.11(A) (Count 2), and one count of Aggravated Possession of Drugs in violation of Ohio Revised Code §2925.11(A) (Count 3). After his motion to suppress was denied, Terrell was convicted by a jury on all counts. The trial court merged Counts 1 and 2 and imposed an aggregate sentence of twelve years. The Second District Court of Appeals affirmed. State v. Terrell, 2017-Ohio-7097 (Ohio App. 2nd Dist. Aug. 4, 2017), appellate jurisdiction declined, 2018-Ohio-500. Terrell filed his Petition here on February 28, 2019, pleading the following single ground for relief:

GROUND ONE: The search warrant for Terrell's hotel room was facially deficient because it was overly broad and lacked sufficient particularity, and the exclusionary rule should be applied.

(Petition, ECF No. 1, PagelD 5.)

         The Magistrate Judge interprets the First Ground for Relief as raising solely a claim under the Fourth Amendment to the United States Constitution. Any claim under the Ohio Constitution's parallel provision, which Petitioner expressly disclaims making (Reply, ECF No. 8, PagelD 752-53), would not be cognizable in federal habeas. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209, 221 (1982), Barclay v. Florida, 463 U.S. 939, 957-58 (1983).

         Respondent argues the Court is barred from reaching the merits of Petitioner's claim by Stone v. Powell, 428 U.S. 465 (1976), where the Court decided federal habeas corpus relief is not available to state prisoners who allege they were convicted on illegally seized evidence if they were given a full and fair opportunity to litigate that question in the state courts. Stone requires the district court to determine whether state procedure in the abstract provides full and fair opportunity to litigate, and Ohio procedure does. The district court must also decide if a Petitioner's presentation of claim was frustrated because of a failure of the state mechanism. Habeas relief is allowed if an "unanticipated and unforeseeable application of a procedural rule .. . prevents state court consideration of merits." Riley v. Gray, 674 F.2d 522, 527 (6, h Cir. 1982). The Riley court, in discussing the concept of a "full and fair opportunity," held:

The mechanism provided by the State of Ohio for resolution of Fourth Amendment claims is, in the abstract, clearly adequate. Ohio R. Crim. P. 12 provides an adequate opportunity to raise Fourth Amendment claims in the context of a pretrial motion to suppress, as is evident in the petitioner's use of that procedure. Further, a criminal defendant, who has unsuccessfully sought to suppress evidence, may take a direct appeal of that order, as of right, by riling a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P. 5(A). These rules provide an adequate procedural mechanism for the litigation of Fourth Amendment claims because the state affords a litigant an opportunity to raise his claims in a fact-finding hearing and on direct appeal of an unfavorable decision.

Id. at 526.

         In Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013), the Sixth Circuit held an evidentiary hearing was not required by due process and followed its prior conclusion that "opportunity means opportunity .... [T]he state court need do no more than 'take cognizance of the constitutional claim and render a decision in light thereof.'" Id. at 638, quoting Moore v. Cowan, 560 F.2d 1298, 1302 (6th Cir. 1977).

Consistent with Moore and with two of the three votes in Bradley, we make clear that the Powell "opportunity for full and fair consideration" means an available avenue for the prisoner to present his claim to the state courts, not an inquiry into the adequacy of the ...

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