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Farmer v. Bracy

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

August 6, 2019

BRUCE L. FARMER, PETITIONER,
v.
CHARMAINE BRACY, Warden, RESPONDENT.

          MEMORANDUM OPINION

          HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE.

         Before the Court is the report and recommendation (Doc. No. 20 [“R&R”]) of Magistrate Judge Thomas M. Parker, recommending that petitioner Bruce Farmer's (“Farmer”) petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1 [“Pet.”]) be denied. Farmer filed timely objections to the R&R. (Doc. No. 22 [“Obj.”].) Respondent filed neither a response to Farmer's objections, nor her own objections. For the reasons discussed herein, Farmer's objections to the R&R are OVERRULED and the R&R is ACCEPTED.

         I. BACKGROUND

         A. Facts Underlying Farmer's Prosecution and Conviction

         The Ohio Court of Appeals recited the facts underlying Farmer's prosecution and conviction:

{¶ 3} The offenses arose from an incident that occurred on October 21, 2013. James Kirk, an officer with the Norfolk Southern Railroad Police Department, testified that he was patrolling in his unmarked police vehicle along a stretch of railroad track in Cleveland when he saw three individuals, one of whom was [Farmer], trespassing. He activated his lights, stopped the individuals, and informed them they were trespassing. Officer Kirk was wearing a police uniform, including his badge, and was carrying mace and a firearm.
{¶ 4} When Officer Kirk questioned [Farmer] as to the spelling of the name he provided, [Farmer] became nervous, turned, and ran. Officer Kirk chased [Farmer], caught him, handcuffed him, and brought him back to the police vehicle.
{¶ 5} According to the testimony of Officer Kirk, as he attempted to use his cell phone to call for assistance, [Farmer] pulled one of his hands loose from the handcuffs and swung at the officer. Officer Kirk was able to handcuff [Farmer] again, but the struggle continued. During the struggle, [Farmer] hit the officer, attempted to grab the officer's gun, sprayed the officer with mace, and broke the officer's cell phone during the officer's attempt to call for backup.
{¶ 6} Officer Kirk began yelling for someone to call 911. A neighbor from the area made the call. The neighbor testified that she saw the officer trying to hold the suspect on the ground and that the suspect kept fighting. She stated the officer was asking for help and asking the suspect to stop. Other bystanders arrived at the scene, and the two individuals who were with [Farmer] on the tracks also returned. One of those individuals took an aggressive stance toward the officer, at which point the bystanders intervened. Eventually, the Cleveland police arrived.
{¶ 7} Officer Kirk testified that he is “a certified police officer under the State of Ohio, and * * * commissioned through the State of Ohio with the Norfolk Southern Railroad Police Department.” He further testified to his training, qualifications, and duties as a law enforcement officer.
{¶ 8} [Farmer] testified that after being stopped by the officer for walking on the tracks, he ran and was caught. According to [Farmer], after he was taken back to the police vehicle, the officer pushed [Farmer] to the ground, pinned [Farmer] in a choke hold, and maced [Farmer] and himself. [Farmer] denied reaching for the officer's weapon. [Farmer's] former girlfriend, who was one of the individuals with him on the tracks, testified that she observed the officer place [Farmer] in a choke hold and that when the officer went to spray [Farmer] with mace, he essentially sprayed himself.

State v. Farmer, 48 N.E.3d 1048, 1049-50 (Ohio Ct. App. 2015). In a habeas corpus proceeding, factual determinations made by state courts are presumed correct unless the petitioner rebuts them by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011).

         B. State Trial Court Convictions

         A grand jury issued a five-count indictment against Farmer on October 29, 2013, charging him with: Count One-Aggravated Robbery, in violation of Ohio Rev. Code. §2911.01(B)(1), a first-degree felony (Count One also had a three-year firearm specification under Ohio Rev. Code § 2941.145(A) and a one-year firearm specification under Ohio Rev. Code § 2941.141(A)); Count Two-Assault on a peace officer, in violation of Ohio Rev. Code § 2903.13(A), a fourth-degree felony; Count Three-Breaking and Entering in violation of Ohio Rev. Code § 2911.13(B), a fifth-degree felony; Count Four-Disrupting Public Service, in violation of Ohio Rev. Code § 2909.04(A)(3), a fourth-degree felony; and Count Five-Resisting Arrest, in violation of Ohio Rev. Code § 2921.33(B), a first-degree misdemeanor. (Doc. No. 5-1, Ex. 1, at 55.[1]) Farmer pleaded not guilty to the charges and proceeded to jury trial commencing on November 17, 2014. (Doc. No. 5-1, Ex. 3, at 59.) On November 21, 2014, the jury found Farmer guilty on each count; the trial judge dismissed the firearm specifications after the State of Ohio withdrew the specifications prior to the commencement of trial. (Doc. No. 5-1, Ex. 4, at 60.)

         The trial court conducted a sentencing hearing on December 29, 2014. Farmer was ordered to serve a prison term of eleven years on the Count One Aggravated Robbery charge, eighteen months on the Count Two Assault on a Peace Officer charge, twelve months on the Count Three Breaking and Entering charge, eighteen months on the Count Four Disrupting Public Service charge, and six months on the Count Five Resisting Arrest Charge. The prison terms on Counts One, Two, Three, and Four were ordered to be served consecutively; the prison term on Count Five was to be served concurrently to the other counts. In addition, the trial court imposed a two-year consecutive prison term pursuant to Ohio Rev. Code § 2929.141 as a sanction for Farmer's violation of the terms of pre-existing post-release control. Farmer's aggregate sentence was seventeen years. (Doc. No. 5-1, Ex. 5, at 61.)

         C. Direct Appeal

         Farmer, represented by new counsel, filed a timely notice of appeal to the Ohio Court of Appeals on January 28, 2015. (Doc. No. 5-1, Ex. 6., at 63.) In his direct appeal, Farmer asserted four assignments of error:

1. It was error for the trial court to overrule Mr. Farmer's Crim. R. 29 Motion for Judgment of Acquittal as to [Counts] 1, 4 and 5 made at the close of all the evidence as there was no evidence that the alleged victim of the acts charged in those counts was a “law enforcement officer” as alleged in the indictment and as the term is defined in the Revised Code.
2. Mr. Farmer was denied his constitutional right to a fair trial and due process when he was found guilty on Counts 1, 4, and 5 when the evidence on those counts was insufficient as it did not show that the alleged victim of the acts charged in those counts was a “law enforcement officer” as alleged in the indictment and as the term is defined in the Revised Code.
3. The jury verdict finding Mr. Farmer guilty as charged in Count Two of the indictment should be vacated because the evidence did not show that James Kirk was a peace officer as the term was defined for them.
4. The trial court erred when it imposed an additional and consecutive two-year sentence for violation of post-release control . . . .

(Doc. No. 5-1, Ex. 7, at 71-72.) In a November 12, 2015 journal entry and opinion, the Ohio Court of Appeals: (1) vacated the jury's finding that the victim was a peace officer for purposes of the Count Two Assault charge, vacated the trial court's sentence on Count Two and remanded the case for resentencing on Count Two only; (2) vacated the sentence imposed for the post-release control violation, thereby sustaining Farmer's fourth assignment of error; and (3) overruled Farmer's first and second assignments of error, thereby affirming his convictions on Counts One, Three, and Four. Farmer had not appealed his Count Five conviction. Farmer's case was remanded for further proceedings. (Doc. No. 5-1, Ex. 9, at 107, 116-117.)

         Farmer filed a timely notice of appeal and memorandum in support of jurisdiction in the Ohio Supreme Court on December 23, 2015. (Doc. No. 5-1, Exs. 10, 11, at 118, 120.) Farmer raised one proposition of law:

Because under the Rule of Lenity and the doctrine expressio unius est exclusio alterius, R.C. 2901.01(A)(11) provide the exclusive definition of “Law Enforcement Officer” for the offenses set forth in R.C. Chapter 29, a person not fitting any definition in that section is not a law enforcement officer and a conviction of an offense against such person as a law enforcement officer is based on insufficient evidence and must be vacated.

(Doc. No. 5-1, Ex. 11, at 121.) The Ohio Supreme Court declined jurisdiction on April 20, 2016. (Doc. No. 5-1, Ex. 13, at 142.) Farmer did not seek further review in the United States Supreme Court. (Pet. at 3.)

         D. Resentencing

         Pursuant to the Ohio Court of Appeals mandate, Farmer returned to the trial court for resentencing on January 24, 2017. The trial court imposed a six-month prison term on Count Two and ordered that it be served concurrently with the sentence previously imposed on the Count One Aggravated Robbery charge. With the modification of the Count Two sentence and the vacatur of the sentence on the post-release control violation, Farmer's aggregate sentence became thirteen years and six months. (Doc. No. 5-1, Ex. 14, at 143.) Farmer did not appeal the resentencing decision.

         E. Petition to Vacate or Set Aside Judgment of Conviction or Sentence

         While Farmer's direct appeal was pending, he filed a pro se Petition to Vacate or Set Aside Judgment of Conviction or Sentence on October 19, 2015. (Doc. No. 5-1, Ex. 15, at 144.) Farmer's petition raised a single claim: “[H]e was denied due process when the State withheld or failed to provide video evidence from the body camera worn by the alleged victim.” (Id. at 145.) By a journal entry dated April 13, 2016, the trial court denied Farmer's petition. (Doc. No. 5-1, Ex. 17, at 165.) The trial court ruled that the arguments Farmer presented in his petition could have been raised on his direct appeal; and it concluded that the claims were barred by the doctrine of res judicata. (Id.)

         On May 6, 2016, Farmer filed a pro se notice of appeal from the trial ...


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