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Smith v. Warden, Pickaway Correctional Institution

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

July 1, 2019

MARK SMITH, Petitioner,
v.
WARDEN, PICKAWAY CORRECTIONAL INSTITUTION, Respondent.

          Barrett, J.

          REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE

         Petitioner, an inmate in state custody at the Pickaway Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his drug convictions. (Doc. 1). This matter is before the Court on the petition (Doc. 1) and respondent's return of writ (Doc. 7), to which petitioner has replied (Doc. 10).

         For the reasons stated below, the petition should be denied.

         I. PROCEDURAL HISTORY

         State Trial Proceedings and Direct Appeal

         On September 22, 2015, a Lawrence County, Ohio, grand jury returned a seven-count indictment charging petitioner with five counts of trafficking in heroin, one count of trafficking in cocaine, and one count of trafficking in drugs (Oxycodone). (Doc. 6, Ex. 1). The trafficking-in-heroin charges included three fourth-degree felonies, one second-degree felony, and one fifth-degree felony. (Doc. 6, Ex. l, PageID 34-36). The case proceeded to a jury trial. On February 5, 2016, the jury found petitioner guilty of the five heroin-trafficking charges but not guilty of a cash-forfeiture specification accompanying one of the heroin-trafficking charges and not guilty of the cocaine- and Oxycodone-trafficking charges. (Doc. 6, Ex. 8). On February 16, 2016, petitioner was sentenced to an aggregate term of twelve years in the Ohio Department of Corrections and to pay a $16, 250 fine. (Doc. 6, Ex. 9).

         Petitioner, through appellate counsel, was granted leave to file an untimely appeal to the Ohio Court of Appeals. (Doc. 6, Ex. 16). Thereafter, petitioner successfully moved to dismiss his appellate counsel and was granted a new appellate attorney. (Doc. 6, Exs. 17, 18). Petitioner raised the following three assignments of error on appeal:

1. The continuation of Appellant Smith's trial beyond the two hundred seventy-day time limit violates his right to a speedy trial pursuant to R.C. 2945.71 through 2945.73. Additionally, this failure to provide a speedy trial is a violation of Smith's fundamental rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article 1 of the Ohio Constitution.
2. Appellant Smith's right to the effective assistance of counsel was violated when his attorney failed to argue that he was denied his right to a speedy trial. Additionally, Smith was denied the effective assistance of counsel when his attorney failed to file an affidavit of indigency prior to sentencing resulting in the imposition of excessive fines. U.S. Const. Amends. V, VI, XIV; Ohio Const. Art. 1 §§ 9, 10, 16.
3. Appellant Smith's conviction was not supported by sufficient credible evidence and was against the manifest weight of the evidence. Thus, Smith was deprived of his right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, § 10 of the Ohio Constitution.

(Doc. 6, Ex. 19). On September 15, 2017, the Ohio Court of Appeals overruled all of petitioner's claims, except that it sustained in part his second assignment of error and remanded the case to the trial court to determine whether petitioner was indigent and unable to pay the mandatory fines. (Doc. 6, Ex. 22, at PageID 161).

         Ohio Supreme Court

         On December 5, 2017, petitioner filed a pro se notice of appeal out of time and a motion for leave to file a delayed appeal, which the Ohio Supreme Court denied. (Doc. 6, Exs. 23-25). Petitioner did not seek a writ of certiorari in the United States Supreme Court.

         Trial Court Remand

         In the meantime, petitioner, through new counsel, filed a motion to set aside the fines imposed by the trial court in the original sentencing entry. (Doc. 6, Ex. 26). On October 23, 2017, the trial court filed an amended judgment entry waiving petitioner's fines but otherwise reinstating petitioner's twelve-year prison sentence. (Doc. 6, Ex. 27). Petitioner did not appeal.

         Federal Habeas Corpus

         On April 23, 2018, petitioner commenced the instant federal habeas corpus action. (Doc. 1). Petitioner raises the following three grounds for relief:

GROUND ONE: Petitioner was denied [a] speedy trial.
Supporting Facts: The continuance of Petitioner's trial beyond the two hundred seventy-day limit violates his right to speedy trial.
GROUND TWO: Ineffective assistance of counsel[.]
Supporting Facts: Attorney failed to argue petitioner was denied his right to a speedy trial. Additionally, petitioner was denied effective assistance when his attorney failed to file an affidavit of indigency resulting in excessive fines.
GROUND THREE: Petitioner's conviction was not supported by sufficient credible evidence and was against the manifest weight of the evidence.

(Doc. l, at PageID 5-8).

         Respondent has filed a return of writ in opposition to the petition. (Doc. 7). According to respondent, petitioner's grounds for relief are procedurally defaulted or without merit. Petitioner has filed a traverse. (Doc. 10).

         II. THE PETITION SHOULD BE DENIED.

         In this federal habeas case, the applicable standard of review governing the adjudication of constitutional issues raised by petitioner to the state courts is set forth in 28 U.S.C. § 2254(d). Under that provision, a writ of habeas corpus may not issue with respect to any claim adjudicated on the merits by the state courts unless the adjudication either:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d).

         "A decision is 'contrary to' clearly established federal law when 'the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). "A state court's adjudication only results in an 'unreasonable application' of clearly established federal law when 'the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. at 599-600 (quoting Williams, 529 U.S. at 413).

         The statutory standard, established when the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600. As the Sixth Circuit explained in Otte:

Indeed, the Supreme Court has been increasingly vigorous in enforcing AEDPA's standards. See, e.g., Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (holding that AEDPA limits a federal habeas court to the record before the state court where a claim has been adjudicated on the merits by the state court). It is not enough for us to determine that the state court's determination is incorrect; to grant the writ under this clause, we must hold that the state court's determination is unreasonable. . , . This is a "substantially higher threshold.". . . To warrant AEDPA deference, a state court's "decision on the merits" does not have to give any explanation for its results, Harrington v. Richter, U.S., 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011), nor does it need to cite the relevant Supreme Court cases, as long as "neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam).

Id. (emphasis in original). The Supreme Court extended its ruling in Harrington to hold that when a state court rules against a defendant in an opinion that "addresses some issues but does not expressly address the federal claim in question," the federal habeas court must presume, subject to rebuttal, that the federal claim was "adjudicated on the merits" and thus subject to the "restrictive standard of review" set out in ...


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