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James v. Buchanan

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

June 13, 2019

ALEX M. JAMES II, Petitioner,

          Kimberly A. Jolson Magistrate Judge.


          Edmund A. Sargus, Jr. Chief Judge.

         On December 19, 2018, the Magistrate Judge issued a Report and Recommendation recommending that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. (ECF No. 9). Petitioner has filed an Objection to the Magistrate Judge's Report and Recommendation. (ECF No. 10). Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner's Objection (ECF No. 10) is OVERRULED. The Report and Recommendation (ECF No. 9) is ADOPTED and AFFIRMED. This action is hereby DISMISSED.

         The Court ISSUES a certificate of appealability.

         Petitioner challenges his conviction after a jury trial in the Muskingum County Court of Common Pleas on possession of cocaine with a major drug dealer specification. He asserts, as his sole ground for relief, that the evidence is constitutionally insufficient to sustain his conviction based on the state's failure to establish the actual amount of cocaine. The Magistrate Judge recommended dismissal of this claim on the merits. Petitioner objects to that recommendation.

         Petitioner maintains the state appellate court's denial of his argument that state law required proof of the actual amount of cocaine, improperly and unconstitutionally deprived him of fair notice of the charge against him. See State v. James, 5th Dist. No. CT2015-059, 2016 WL 6599952, at *l-3 (Ohio Ct. App. Oct. 31, 2016). According to the Petitioner, to uphold the state courts' decision would be tantamount to allowing the interpretation of state statutes by ex post factor "judicial fiat" and impermissible expansion of a state's laws beyond the legislature's plain intent, for example, by defining "cocaine" to encompass the possession of lollipops, a non-contraband substance. Objection (ECF No. 10, PAGE ID #789, 796).

         Petitioner did not previously raise this same fair notice argument. Significantly, he did not raise the issue in the Ohio Court of Appeals. There, he argued solely that Ohio Rev. Code § 2925.11(C)(4)(f) required the prosecution to establish that the actual amount of pure cocaine exceeded 100 grams. See Brief of Defendant-Appellant (ECF No. 7, PAGEID # 85-86). Thus, he has waived consideration of the issue here.

         In order to satisfy the exhaustion requirement in habeas corpus, a petitioner must fairly present the substance of each constitutional claim in the state courts as a federal constitutional claim. Anderson v. Earless, 459 U.S. 4, 6 (1982). Although the fair presentment requirement is a rule of comity, not jurisdiction, it is rooted in principles of comity and federalism designed to allow state courts the opportunity to correct the State's alleged violation of a federal constitutional right that threatens to invalidate a state criminal judgment. O 'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); Castille v. Peoples, 489 U.S. 346, 349 (1989). In the Sixth Circuit, a petitioner can satisfy the fair presentment requirement in any one of four ways: "(1) reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the mainstream of constitutional law." McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). Further, general allegations of the denial of a constitutional right, such as the right to a fair trial or to due process, are insufficient to satisfy the "fair presentment" requirement. Id.

         Nothing in Petitioner's appellate brief would have alerted a state appellate court that he intended to raise a claim of the denial of fair notice or due process based on the state court's interpretation of its own laws. Additionally, he has not established cause for his failure to present this claim to state courts. Therefore, he has waived the right to present this issue in the first instance in these proceedings.

         Moreover, the record does not reflect that the state courts adopted an unexpected and indefensible judicial interpretation of the statute so as to violate the Due Process Clause. Contrary to Petitioner's argument, State v. Gonzales, 81 N.E.3d 419 (Ohio 2017) ("Gonzales IF') does not "cause a Fifth Amendment problem that otherwise does not exist." Objection (ECF No. 10, PAGE ID #789).

         It is well-established that the Fifth Amendment requires a criminal statute provide fair notice of the conduct it punishes and the severity of the punishment, including statutes fixing sentences. Johnson v. U.S., 135 S.Ct. 2551, 2556-57 (2015). "The crucial test is 'whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant's conduct could be criminally penalized.'" O'Neal v. Bagley, 743 F.3d 1010, 1015 (6th Cir. 2013) (quoting United States v. Lanier, 520 U.S. 259, 267 (1997)). "[A] defendant's due process rights are violated when a court applies a construction of the statute that 'is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.'" Id. (quoting Bouie v. City of Columbia, 378 U.S. 347, 354 (1964)). The analysis "begin[s] with the relevant statutory language and the manner in which it had been construed by the Ohio courts prior to the events in question." Id. at 1016.

         Petitioner was indicted on May 27, 2015 and convicted by a jury of one count of possession of cocaine with a major drug dealer specification on October 21, 2015. James, 2016WL6599952, at * 1-2. At the time of Petitioner's relevant conduct, the offense was defined by statute in Ohio:

(C) Whoever violates division (A)[1] of this section is guilty of one of the following:
(4) If the drug involved in the violation is cocaine or a compound, mixture, preparation, or substance containing cocaine, whoever violates division (A) of this section is guilty of possession of cocaine. The ...

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