Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Terrell v. Sheldon

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

July 3, 2019

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

          Walter H. Rice, District Judge.

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge.

         This habeas corpus case, brought by petitioner with the assistance of counsel, is before the Court on Petitioner's Objections (ECF No. 11) to the Magistrate Judge's Report and Recommendations (the “Report, ” ECF No. 9). District Judge Rice has recommitted the case for reconsideration in light of the Objections (ECF No. 12).

         Terrell pleads one ground for relief under the Fourth Amendment:

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, PageID 5.)

         The Warden argued that merits review of this claim in habeas was barred by the doctrine of Stone v. Powell, 428 U.S. 465 (1976), as applied in the Sixth Circuit in Riley v. Gray, 674 F.2d 522 (6th Cir. 1982) (Return of Writ, ECF No. 7, PageID 748, quoting Stone, 428 U.S. at 493, 494; Riley, 674 F.2d at 527.). The Report accepted that argument and concluded merits review was precluded by Stone (ECF No. 9, PageID 765).

         Terrell had raised his scope and particularity claim, the claim he makes here, as his second assignment of error on direct appeal. The Ohio Second District Court of Appeals reviewed this claim only for plain error because it had not been raised in the trial court and affirmed. State v. Terrell, 2nd Dist. Clark No. 2016-CA-32, 2017-Ohio-7097, 95 N.E.3d 870, ¶ 67 (Aug. 4, 2017), appellate jurisdiction declined, 2018-Ohio-723 (2018).

         In his Objections, Terrell argues that this holding of the Second District “applied a procedural bar that does not exist in Ohio” law and which therefore was an “unanticipated and unforeseeable application of a procedural rule which prevent[ed] state court consideration of the merits of the claim, ” bringing the Petition within an exception to Stone (ECF No. 11, PageID 773, 774, quoting Riley, 674 F.2d at 527). Terrell asserts this procedural bar was unanticipated because of the Supreme Court of Ohio's decision in State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, ¶¶ 106-08. The Castagnola Court held that “[w]hen an issue of law that was not argued below is implicit in another issue that was argued and is presented by an appeal, we may consider and resolve that implicit issue.” Id. at ¶ 67 (brackets in original) (internal quotation marks and citation omitted). Terrell asserts the Castagnola decision is “central to [his] arguments in his Petition.” (Objections, ECF No. 11, PageID 773).

         The Second District was certainly aware of Castagnola, quoting that decision in its own opinion. Terrell, 2017-Ohio-7097, at ¶ 66, quoting Castagnola, 2015-Ohio-1565, at ¶ 79. It did not discuss any portion of Castagnola which according to Terrell allowed it to consider de novo any particularity or scope argument raised for the first time on appeal. Instead, as precedent for applying only plain error review, it cited its own precedent. Id. at ¶ 67, quoting State v. Zwick, 2ndDist. Miami No. 2013 CA 4, 2014-Ohio-230, ¶ 18 (2nd Dist. 2014).

         A careful reading of Castagnola shows that it does not support Petitioner's position for the following reasons:

First, unlike Petitioner here, Castagnola argued lack of particularity in both the trial and appellate courts. 2015-Ohio-1565, at ¶ 69. Terrell made that argument only on appeal.

         Second, the Supreme Court of Ohio did not adopt a general rule that particularity could be raised on appeal when it was omitted in the court below; instead, it held that it “may” in a particular case consider “an issue of law that was not argued below [when that issue] is implicit in another issue that was argued and is presented by an appeal [to the Supreme Court].” Id. at ¶ 67 (internal quotation marks and citation omitted). As is well established, the jurisdiction of the Supreme Court of Ohio is almost entirely discretionary[1]. The fact that it chooses to exercise that discretion to decide an issue presented but not decided below does not imply that courts of appeal are free to do that.

         Furthermore, Terrell did not cite Castagnola to the Second District for the proposition for which he relies on it here, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.