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Terrell v. Sheldon

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

August 1, 2019

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

          Walter H. Rice, District Judge

          SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz, Magistrate Judge.

         This habeas corpus case, brought by petitioner with the assistance of counsel, is before the Court on Petitioner's Objections (ECF No. 15) to the Magistrate Judge's Supplemental Report and Recommendations (the “Supplemental Report, ” ECF No. 13). The Warden has also objected to the Supplemental Report (ECF No. 14) and Terrell has responded to those Objections (ECF No. 17). District Judge Rice has recommitted the case for reconsideration in light of the Objections (ECF No. 16).

         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 First Objections (ECF No. 11), Terrell argued 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 asserted 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, which he said was “central to [his] argument in the Petition. The Supplemental Report (ECF No. 13) distinguished Castagnola in a number of ways.

         Terrell had also argued that plain error review does not satisfy Stone. Relying on Good v. Berghuis, 729 F.3d 636 (6th Cir. 2013), the Supplemental Report disagreed. The Supplemental Report concluded by again recommending dismissal, but agreeing a certificate of appealability should issue on the breadth of reading of Castagnola, to wit, whether that case “required the Second District to provide full review, rather than plain error review, on the particularity issue.” (ECF No. 13, PageID 781-82).

         Petitioner's Objections on the Merits

          Petitioner objects on the merits, but does not raise issues that were not considered in the Supplemental Report. The Objections offer a careful reading of Castagnola that competes with the Magistrate Judge's reading in the Supplemental Report but does not persuade the undersigned that his reading is incorrect.

         The Warden's Objections

          The Warden objects to the Magistrate Judge's recommendation for issuance of a certificate of appealability because, he says, a “state court's application of its own law regarding what is the proper standard of review because ‘a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a ...


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