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.

Nicholson v. Gray

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

September 17, 2019

DAMARCUS LEE NICHOLSON, Petitioner,
v.
DAVID GRAY, WARDEN, Respondent.

          DAN AARON POLSTER, JUDGE

          REPORT & RECOMMENDATION

          THOMAS M. PARKER, UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner, Damarcus Lee Nicholson, seeks a writ of habeas corpus under 28 U.S.C. § 2254, claiming that his conviction and sentence in State v. Nicholson, No. 2016 CR 1465A, (Stark County, Ohio Court of Common Pleas), as affirmed in State v. Nicholson, Fifth Dist. Stark No. 2016 CA 00210, 2017-Ohio-2825, 2017 Ohio App. LEXIS 1856, violated his constitutional rights. ECF Doc. 1. Respondent Warden, David W. Gray, has filed a return of writ. ECF Doc. 8. Nicholson filed a traverse, which he entitled “motion for federal relief pursuant to U.S.C. § 2254(D)” on May 21, 2018. ECF Doc. 10. Warden Gray filed a response to Nicholson's motion on May 29, 2018. ECF Doc. 11.

         On September 30, 2016, a jury found Nicholson guilty of trafficking in heroin, possession of heroin, aggravated trafficking in drugs and aggravated possession of drugs. ECF Doc. 8-1 at 36. On October 11, 2016, after merging three of Nicholson's charges, the trial court ordered him to serve an eight-year prison term for trafficking in heroin and a 12-month term for aggravated possession of drugs, to be served concurrently. ECF Doc. 8-1 at 46. Nicholson is currently incarcerated at the Belmont Correctional Institution.[1]

         The matter is before me by this Court's February 27, 2018 order of reference and Local Rule 72.2 for preparation of a report and recommendation on Nicholson's petition. Because Nicholson's Ground One claim lacks merit and his Ground Two claim has been procedurally defaulted, I recommend that the Court DISMISS Nicholson's claims for relief and DENY his petition for writ of habeas corpus.

         II. Procedural History

         A. State Trial Court Conviction

         On August 10, 2016, a Stark County, Ohio grand jury indicted Nicholson with one count of trafficking in heroin in violation of Ohio Rev. Code § 2925.03(A)(2)(C)(6)(e), one count of possession of heroin in violation of Ohio Rev. Code § 2925.11(A)(C)(6)(d), one count of aggravated trafficking in drugs in violation of Ohio Rev. Code § 2925.03(A)(2)(C)(1)(a), and one count of aggravated possession of drugs in violation of Ohio Rev. Code § 2925.11(A)(C)(1)(a). ECF Doc. 8-1 at 5.

         Before trial, Nicholson moved to suppress the evidence obtained from a warrantless search of the rental car he was driving. ECF Doc. 8-1 at 8. After a hearing, the trial court determined that Nicholson did not have standing to object to the search of the vehicle because he didn't own or lease the car; he was not listed as an authorized driver on the rental agreement; and, because he didn't have a valid driver's license, he could not have been an authorized driver of the car. ECF Doc. 8-1 at 32-33.

         The trial court declared a mistrial at Nicholson's first trial because an officer's testimony violated an in limine order. ECF Doc. 8-3 at 4-5. The second trial commenced on September 29, 2016. ECF Doc. 8-3 at 1. On September 30, 2016, the jury found Nicholson guilty on all charges. ECF Doc. 8-1 at 36. The trial court found that Counts One, Two and Three were of similar import and merged them before sentencing. ECF Doc. 8-1 at 46. On October 11, 2016, the trial court sentenced Nicholson to serve an eight-year prison term for trafficking in heroin and a 12-month term prison for aggravated possession of drugs. These terms were ordered to be served concurrently for an aggregate sentence of eight years. ECF Doc. 8-1 at 46.

         B. Direct Appeal

         Through new counsel, Nicholson filed a notice of appeal on November 10, 2016. ECF Doc. 8-1 at 49. In his appellate brief, Nicholson raised a single assignment of error:

I. The trial court committed reversible error when it overruled the defendant's motion to suppress.

ECF Doc. 8-1 at 57. The Ohio Court of Appeals agreed with the trial court that Nicholson lacked standing to challenge the warrantless search of the vehicle he was driving and affirmed the trial court's judgment on May 15, 2017. ECF Doc. 8-1 at 110, State v. Nicholson, Fifth Dist. Stark No. 2016 CA 00210, 2017-Ohio-2825, 2017 Ohio App. LEXIS 1856.

         On June 16, 2017, Nicholson filed a pro se notice of appeal with the Ohio Supreme Court. ECF Doc. 8-1 at 120. In his memorandum in support of jurisdiction, Nicholson asserted one proposition of law:

Proposition of Law No. I:
Did the Fifth Appellant District Err[] by allowing the trial court to impermissibl[y] exceed the scope of the suppression hearing.

ECF Doc. 8-1 at 123. On September 27, 2017, the Ohio Supreme Court declined jurisdiction. ECF Doc. 8-1 at 151. State v. Nicholson, 150 Ohio St.3d 1913, 2017-Ohio-7843, 82 N.E.3d 1177.

         C. Post-Conviction Motion for Mistrial Transcript

         Two weeks before the Ohio Court of Appeals affirmed Nicholson's convictions on direct appeal, on April 28, 2017, Nicholson filed a pro se motion requesting the transcript from the day the trial court declared a mistrial. Nicholson represented that the transcript was “needed for the furtherance of petitioner[']s direct appeal, ” and he asserted that his appellate attorney had not responded to his request for the transcript. ECF Doc. 8-1 at 152. The trial court denied his motion. ECF Doc. 8-1 at 154.

         On May 18, 2017, Nicholson filed a pro se appeal with the Ohio Court of Appeals (ECF Doc. 8-1 at 155) raising the following assignment of error:

I. The trial court erred in its decision to deny appellant's motion for mistrial transcripts.

ECF Doc. 8-1 at 162. The state filed a responsive brief. ECF Doc. 8-1 at 166. Nicholson filed a rebuttal brief. ECF Doc. 8-1 at 177. On August 21, 2017, the Ohio Court of Appeals affirmed the judgment of the trial court. ECF Doc. 8-1 at 182. The Ohio Court of appeals recognized that the State must provide a transcript of prior proceedings when an indigent defendant needs it for an effective defense or appeal. State v. Arrington, 42 Ohio St.2d 114 (1975). However, the court also found that Nicholson did not need the mistrial transcript for an effective appeal because, by the time he requested the transcript, his appeal had already been fully briefed and heard on oral argument[2]; his appeal only raised issues related to the denial of his motion to suppress; and Nicholson had not requested a transcript of the mistrial during the second trial. ECF Doc. 8-1 at 185. Nicholson did not appeal this decision to the Ohio Supreme Court.

         D. Ohio App. R. 26(B) Application to Reopen Direct Appeal

         On June 12, 2017, Nicholson filed a pro se application to reopen his direct appeal. ECF Doc. 8-1 at 187. Nicholson argued that his appellate counsel was ineffective for failing to raise the following assignments of error:

I. Appellate counsel was ineffective for failing to raise the issue of the trial court abusing its discretion in admitting text messages that were unfairly prejudicial. ECF Doc. 8-1 at 190.
II. Appellate counsel was ineffective for failing to raise the issue of trial counsel's failure to object to the text messages and Exhibit 26. ECF Doc. 8-1 at 193.
III. Appellate counsel was ineffective for failing to order the mistrial transcripts as it was needed for Nicholson's direct appeal. ECF Doc. 8-1 at 194.

         The State opposed Nicholson's application to reopen. ECF Doc. 8-1 at 238. On July 26, 2017, the Ohio Court of Appeals denied the application, finding “no genuine issues existed” as to whether Nicholson was denied effective assistance of counsel on appeal. ECF Doc. 8-1 at 248.

         On August 16, 2017, Nicholson filed a pro se notice of appeal with the Ohio Supreme Court. ECF Doc. 1 at 249. Nicholson's memorandum in support of jurisdiction asserted the following propositions of law:

Proposition of Law No. I:
Appellate Counsel is ineffective when he fails to raise issues that offend the Confrontation Clause and instead raises a claim that is clearly non meritorious having no reasonable probability of success on a defendant's appeal?
Sub Proposition of Law I(A):
Did the text messages violate hearsay rule 801C and the Confrontation Clause of the 6th Amendment of the United States Constitution?
Sub Proposition of Law (IB):
Did the translation of authenticated text messages by Detective Bays violate Crawford v. Washington?
Sub Proposition of Law (IC):
Did the trial court abuse its discretion in allowing Exhibit (28) to be entered into evidence, as it was ...

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.