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Petty v. Wainwright

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

July 8, 2019

MATHIAS D. PETTY, Petitioner,
v.
LYNEAL WAINWRIGHT, WARDEN, Marion Correctional Institution Respondent.

          Sarah D. Morrison District Judge.

          SUBSTITUTED REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This habeas corpus case is before the Court on Petitioner's “Secondary Objection and Rebuttal” (ECF No. 22) to the Magistrate Judge's Supplemental Report and Recommendations (“Supplemental Report, ” ECF No. 21). The District Judge assignment of the case was transferred to District Judge Sarah Morrison upon her appointment to the Court (ECF No. 23) and she has recommitted the case to the Magistrate Judge for reconsideration in light of the Objections (ECF No. 24).

         So as not to burden the reader with multiple Reports, this Substituted Report contains all the analysis the Magistrate Judge believes is appropriate and substitutes to the two prior Reports (the “Original Report, ” ECF No. 18, and the Supplemental Report). Petitioner may either combine his objections in a response to this Substituted Report or rely on his prior filings.

         Petitioner Mathias D. Petty filed this case pro se in the Northern District of Ohio on May 24, 2018 (ECF No. 1). On June 11, 2018, the case was transferred here by Order of Chief Judge Patricia Gaughan (ECF No. 4) and assigned to District Judge Algenon L. Marbley and Magistrate Judge Kimberly A. Jolson. On Magistrate Judge Jolson's Order (ECF No. 6), the State filed the State Court Record and a Return of Writ (ECF Nos. 12, 13). The case became ripe on the filing of Petitioner's Traverse (ECF No. 16) and was transferred to the undersigned to help balance the workload in the District (ECF No. 17).[1]

         Petty pleads the following grounds for relief:

GROUND ONE: [C]onviction obtained in violation of evidentiary rule implicates due process and resulting in a trial that was/is fundamentally unfair. see: United States v. Allen, 106 F.3d 695 (6th Cir. 1997).
GROUND TWO: Conviction obtained in violation of Fourteenth Amendment's Due Pro[cess] Clause, wherein the evidence admitted at trial was manifestly insufficient to support a conviction. see: In re Winship (1970), 397 U.S. 358, 364; 90 S.Ct. 1068; and Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781.
GROUND THREE: [C]onviction obtained in violation of due process and fundamental fairness where petitioner's convictions for “repeat violent offender” “use of force” and “rape and importuning” were against the manifest weight of the evidence.
GROUND FOUR: [C]onviction obtained in violation of Fourteenth Amendment Due Process Clause, and that of the Federal Constitution's Fifth Amendment Double Jeopardy protections and prohibitions where the underlying sentence(s) were/are ‘declared void' by operation of law, contrary to law, and patently exceed both state statutory and federal constitutional requirements. see: Whalen v. United States (1980), 445 U.S. 684, 689, 100 S.Ct. 1432; and, U.S. Sentencing Guidelines Manual, ch. 1, pt. A(4)(e) (2012).

(Petition, ECF No. 1, PageID 14, 18, 27, 29 (alterations in original)).

         Litigation History

         In July 2014, Petty was indicted by a Franklin County grand jury on one count of rape in violation of Ohio Revised Code §2907.02 with the specifications that (1) the victim was less than thirteen and (2) that Petty was a repeat violent offender by virtue of his prior conviction for aggravated robbery. He was also charged with one count of importuning in violation of Ohio Revised Code §2907.07 (State Court Record, ECF No. 12, Ex. 1, PageID 113-14). Petty, through counsel, entered a not guilty plea and the case was set for jury trial. Prior to trial, the State of Ohio filed a notice of intent to introduce a certified copy of Petty's prior judgment entry to prove the aggravated robbery conviction. Petty waived his right to a jury trial on the repeat violent offender specification. Id. at Exs. 4-5, PageID 120-22. Following trial, the jury found Petty guilty of one count of rape and one count of importuning, and the trial court found him guilty of the repeat violent offender specification. Id. at Ex. 7, PageID 125-26. In September 2015, Petty was sentenced to serve an aggregate sentence of fifteen years to life. Id. at Ex. 8, PageID 127-29.

         Petty, through counsel, filed an appeal of his conviction to the Tenth District Court of Appeals, Franklin County, Ohio. The court of appeals affirmed Petty's conviction but remanded to the trial court for resentencing. State v. Petty, 10th Dist. Franklin, No. 15AP-950, 2017-Ohio-1062 (Mar. 23, 2017), appellate jurisdiction declined, 151 Ohio St.3d 1455, 2017-Ohio-8842 (“Petty I”).

         Pursuant to the remand, on April 26, 2017, the trial court made the required proportionality findings as dictated by the Court of Appeals and resentenced Petty to the same aggregate sentence of fifteen years to life. (State Court Record, ECF No. 12, Ex. 17, PageID 301-03). Petty, through counsel, timely appealed the resentence and the Court of Appeals affirmed the trial court's judgment. State v. Petty, 10th Dist. Franklin No. 17AP-385, 2017-Ohio-9200, (Dec. 21, 2017) (“Petty II”). Petty did not pursue an appeal to the Supreme Court of Ohio.

         Analysis

         General Objection: The Magistrate Judge's Reports Are Too Hasty

         Although the Original Report explains why this case was ripe for decision when Petitioner filed his Reply in January 2019, Petitioner objected that the undersigned filed that report April 9, 2019, “a mere (10) ten days” after the reference was transferred from Magistrate Judge Jolson (Objections, ECF No. 19, PageID 1482). In the Supplemental Report, the undersigned explained his recall status and specialization in habeas corpus cases as the reason why he was able to work on Petitioner's case immediately upon its transfer (ECF No. 21, PageID 1496-97). Unsatisfied with this explanation, Petitioner carried forward the objection in his Secondary Objections, asserting again that there has been “the patent lack of adjudication [of] the matter.” (ECF No. 22, PageID 1514). Virtually every non-capital habeas corpus case becomes ripe for decision when the petitioner files his reply, and this case was treated no differently from other habeas corpus cases. He argues that this is a “case of first impression[, ]” id. at PageID 1517, “requiring (at a minimum) further fact-developing procedures[.]” Id. at PageID 1515. However, he never asked for discovery or an evidentiary hearing and the latter would, in any event, be precluded by Cullen v. Pinholster, 563 U.S. 170 (2011).

         Ground One: Denial of Due Process and a Fair Trial by Violation of Evidence Rules

         In his First Ground for Relief, Petty claims he was denied due process and a fair trial when Police Officer David Schulz was permitted to testify about the content of a written message he observed on a cell phone screen.

         The Tenth District Court of Appeals stated the background facts of the case as follows:

{¶ 4} In July 2014, C.A. began communicating through the Badoo app with a particular individual whose screen name was “T-h-a-i.” They began talking about “[g]iving head, sex, stuff that shouldn't have been talking about.” (Tr. Vol. II at 178.) C.A. did not tell this individual how old she was, and C.A. did not know the age of the other individual. C.A. testified that Thai first brought up the topic of oral sex on the app.
{¶ 5} On July 5, 2014, C.A. and her mother went to the residence of C.A.'s aunt, located “[d]own the street, ” approximately ten minutes walking distance from their home. (Tr. Vol. II at 180.) Other family members and friends were at the residence.
{¶ 6} C.A. and Thai were sending each other messages that evening. Later that evening, C.A. went outside “[b]ecause that person texted me saying, Oh, I want to come over, and I said okay.” (Tr. Vol. II at 183.) In response to the nature of the messages, C.A. testified “[h]e was asking me the address. He was asking me if I was going to do it then. I needed to do it, and if I wasn't, then he doesn't have to come.” She defined “it” as he wanted her to “[p]erform oral sex.” (Tr. Vol. II at 184.)
{¶ 7} At trial, C.A. identified appellant as Thai. Thai arrived at the address that evening and C.A. described the events, as follows:
I sat there for a minute, and I was just texting. And he said, You look pretty occupied, and I said okay. * * * Then he said, If you're not going to do it, I can just leave. * * * I said okay, and I stopped texting. * * * He asked me if he wanted to - - if I was going to pull it out or if he was.

(Tr. Vol. II at 191.)

{¶ 8} C.A. testified that appellant was talking about “[h]is penis.” He unzipped his pants. “He took it out, and I got down on my knees, and I started sucking __ I started giving oral sex.” (Tr. Vol. II at 192.) C.A. put appellant's penis in her mouth. Appellant “was moving my head” with his hand. (Tr. Vol. II at 193.) C.A. was on the porch with him for "[t]en, fifteen minutes." (Tr. Vol. II at 198.)

Petty I, 2017-Ohio-1062.

         As part of the proof of the importuning charge, Columbus Police Officer David Schulz testified to being dispatched to the scene of the alleged crime at about 11:30 p.m. on July 5, 2014. He was given the victim's cell phone. Although he did not keep the phone, he testified to the content of text messages between Petitioner and the victim, C.A., transmitted through an application called Badoo which were “trying to establish a basic contact and, specifically for that day, trying to set up a meeting day or meeting time and place between [C.A.] and the other individual.” Petty I, 2017-Ohio-1062, at ¶¶ 14-15 (brackets in original). Defendant's counsel objected but the objection was overruled. Id. at ¶ 18. On appeal, the Tenth District decided this claim as follows:

{¶ 47} On appeal, appellant argues the trial court should have excluded evidence concerning the text messages on multiple grounds, including that (1) the content of the messages constituted hearsay within hearsay and should have been excluded under Evid.R. 805, (2) the messages lacked proper foundation because the witness lacked personal knowledge, pursuant to Evid.R. 602, and (3) the evidence should have been excluded under the best evidence rule pursuant to Evid.R. 1002.
{¶ 48} As noted, appellant objected during Officer Schulz's testimony, but parts of the transcript are marked as inaudible with respect to the supporting argument. The nature of the objection is hearsay based on an argument that the messages only showed one-half of the conversation between C.A. and appellant. Initially, we note these messages are not hearsay. Evid.R. 801(D)(2) provides that statements are not hearsay if: “[t]he statement is offered against a party and is (a) the party's own statement, in either an individual or a representative capacity.” Here, appellant admitted he sent the text messages through the Badoo app and that he solicited C.A. Further, C.A. testified regarding the messages and she was subject to cross-examination.
{¶ 49} It was not until after Officer Schulz finished testifying that defense counsel articulated a lack-of-foundation objection. Such an objection, however, “must be ‘contemporaneous' to the alleged error.” State v. Copley, 10th Dist. No. 04AP-511, 2005-Ohio-896, ¶ 32, citing State v. Murphy, 91 Ohio St.3d 516, 532(2001). Moreover, an objection on one ground does not preserve for appeal other grounds. State v. Luc Tan Vu, 10th Dist. No. 09AP-606, 2010-Ohio-4019, ¶ 30, citing State v. Gulertekin, 10th Dist. No. 97APA12-1607, 1998 Ohio App. LEXIS 5641 (Dec. 3, 1998). Thus, appellant did not preserve an objection based on lack of foundation.
{¶ 50} On appeal, appellant appears to argue that his untimely lack-of-foundation objection includes an objection based on the best evidence rule. Appellant, however, made no objection based on the best evidence rule. Having failed to object on this ground, appellant waived all but plain error.
{¶ 51} Under Crim.R. 52(A), an appellate court may notice plain errors affecting substantial rights even though they were not brought to the attention of the trial court. An alleged error constitutes plain error only if the error is obvious and, but for the error, the outcome of the trial clearly would have been different. State v. Barnes,94 Ohio St.3d 21, 27 (2002). Notice of plain error is taken “‘with the utmost caution, under exceptional circumstances and only to prevent a manifest ...

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