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Smith v. Harris

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

October 7, 2019

ADEMILSON J. SMITH, Petitioner,
v.
CHAE HARRIS, Warden, [1]Lebanon Correctional Institution, Respondent.

          JAMES S. GWIN JUDGE.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          GEORGE J. LIMBERT UNITED STATES MAGISTRATE JUDGE.

         On March 20, 2017, Ademilson Smith (“Petitioner”), pro se, executed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was filed with the Court on May 17, 2017. ECF Dkt. #1. Petitioner is currently incarcerated at the Lebanon Correctional Institution (“LCI”), and he is challenging his convictions and sentences rendered in his Trumbull County Common Pleas Court case. Id. Petitioner seeks relief for alleged constitutional violations that occurred during his trial in the Trumbull County Common Pleas Court, where he was convicted of one count of Burglary and two counts of Receiving Stolen Property. Id.; ECF Dkt. #9-1 at 15. On August 4, 2017, the Warden of the Lebanon Correctional Institution (“Respondent”) filed a return of writ. ECF Dkt. #9. On September 11, 2017, Petitioner filed a traverse, which was broken down into several attachments. ECF Dkt. #s 10, 10-1, 10-2, 10-3, 10-4, 10-5, 10-6, 10-7, 10-8. For the following reasons, the undersigned RECOMMENDS that the Court DISMISS the petition in its entirety with prejudice.

         I. FACTUAL HISTORY

         The Ohio Eleventh District Court of Appeals set forth the facts of this case on direct appeal. ECF Dkt. #9-1 at 194-95. These binding factual findings “shall be presumed to be correct, ” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013). “This presumption of correctness applies even to factual findings made by a state court of appeals based on the state trial record.” Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir. 2001). As set forth by the Eleventh District Court of Appeals, the facts are:

{¶3} Patrolman Edwards, with the Warren City Police Department (“WCPD”), indicated that from midnight to 4:00 a.m. on September 25, 2011, he was working a side security job with a fellow officer, Brian Cononico, at the Hampshire House Apartments located on Fifth Street [fn. 1 Patrolman Edwards explained that a “side job” is extra employment in which a business requires police protection or assistance to help fight local crime. He stated that they were working in almost a security capacity but technically on duty as a Warren police officer.]. The officers were in uniform and sitting in a marked cruiser. While parked, they received information of a home burglary on Atlantic Street. In addition to items stolen from inside the residence, a purple Toyota RAV4 was stolen from the driveway. A description of the stolen vehicle, including the license plate number, was part of the dispatch.
{¶4} Within two to five minutes of receiving the dispatch, a vehicle matching the description passed in front of the officers and pulled into a parking space at the apartment complex. At that point, Patrolman Edwards positioned the cruiser behind the purple RAV4. The officers approached the driver, identified as appellant. Patrolman Edwards recognized appellant from prior arrests. The officers observed a flat screen television inside the vehicle. Patrolman Edwards confirmed that the purple RAV4 driven by appellant was the purple RAV4 stolen from the Atlantic Street residence.
{¶5} In the course of a search incident to arrest, Patrolman Edwards discovered on appellant's person a wallet belonging to the victim, Timothy Sekela, the occupant of the burglarized residence and the owner of the purple RAV4. The wallet contained Sekela's identification card and three credit cards.
{¶6} Sekela testified that he was awakened before 4:00 a.m. on September 25, 2011, when he heard his car starting in his driveway. When he looked out the window, he noticed his car was gone. Sekela went downstairs and noticed his television was missing in addition to his wallet. He called 9-1-1 and reported this information.
{¶7} As to the timeline of the 9-1-1 dispatch and arrest, Patrolman Edwards testified again that the arrest occurred between two and five minutes after he and Officer Cononico had received the dispatch.
{¶8} Officer Brian Holmes, with the WCPD, testified that he was working the midnight shift on the night at issue. He was sent to Sekela's residence after the burglary was reported. Officer Holmes and Sekela walked through the house and discovered that a sliding glass door at the rear of the residence was unlocked. Outside were footprints in the wet grass. Officer Holmes surmised that the sliding glass door was the burglar's point of entry.

ECF Dkt. #9-1 at 194-95.

         II. PROCEDURAL HISTORY

         A. State Trial Court

         On November 16, 2011, a Trumbull County, Ohio Grand Jury indicted Petitioner on one count of Burglary under § 2911.21(A)(1) of the Ohio Revised Code (“ORC”) and two counts of Receiving Stolen Property in violation of ORC § 2913.51. ECF Dkt. #9-1 at 5-7. The offenses were prosecuted in the Trumbull County Common Pleas Court under Case Number 11-CR-618, State of Ohio v. Ademilson Smith, and Petitioner had legal representation throughout the trial court proceedings. Id. at 8-10. Petitioner pleaded not guilty and filed several pretrial and speedy trial waivers. Id. at 42. On November 13, 2012, Petitioner filed a motion to suppress his statements and other evidence gained during a search and seizure. Id. at 11-13. After a suppression hearing, the trial court decided to suppress the statements Petitioner made during his arrest because he was not given proper warnings under Miranda v. Arizona, 384 U.S. 436 (1966), but the court held that the remaining evidence was admissible. Id. at 14; ECF Dkt. #9-2 at 1-54.

         The case proceeded to jury trial, and after the State rested its case, counsel for Petitioner moved for judgment of acquittal on Count 1, the Burglary charge, and Count 3, the Receiving Stolen Property charge, pursuant to Ohio Criminal Rule 29. ECF Dkt. #9-2 at 136-37. The trial court denied the motion for acquittal. Id. at 139. Ultimately, the jury unanimously found Petitioner guilty of all three counts of the indictment. Id. at 204-07; ECF Dkt. #9-1 at 15. Petitioner subsequently filed a motion for acquittal or a new trial, which the trial court denied. ECF Dkt. #9-1 at 16-24.

         Petitioner also requested a merger pursuant to Ohio Criminal Rule 32 of Counts 1-3 for sentencing purposes. ECF Dkt. #9-1 at 25. After a sentencing hearing, the trial court ordered Counts 2 and 3 to be merged and imposed an aggregate sentence of nine and a half years imprisonment. ECF Dkt. #9-1 at 29-31; ECF Dkt. #9-2 at 212-32. The trial court also notified Petitioner of post-release control. ECF Dkt. #9-1 at 32. Petitioner subsequently moved for the appointment of counsel for his direct appeal to the Eleventh District Court of Appeals, which the trial court granted. Id. at 33-35.

         B. Direct Appeal

         On June 14, 2013, Petitioner, through counsel, executed a notice of appeal in the Court of Appeals for Trumbull County, Eleventh Appellate District, which was filed on July 1, 2013. ECF Dkt. #9-1 at 36-37. Petitioner's Notice of Appeal included the following: (1)denial of the motion to suppress evidence; (2) denial of Ohio Crim. R.29 motions during trial; (3) all overruled evidentiary objections by defense counsel during trial; (4) guilty verdicts by the jury; (5) denial of the motion to set aside verdict and/or for new trial; (6) denial of merger amongst all Counts in the Indictment; and (7) sentences imposed by the trial court. Id. at 36. Pursuant to Anders v. California, 386 U.S. 738 (1967), Petitioner's attorney filed a motion to withdraw and a brief that identified one assignment of error as follows: “Whether the trial court committed prejudicial error by overruling the Defendant's trial motion to have the evidence relating to the arrest suppressed for lack of reasonable and articulable suspicion?” Id. at 38-55. The brief also contained two issues for review and argument as follows:

1. Whether the trial court was correct in finding that the time-stamped notations on the 911 dispatcher's log were not conclusively accurate?
2. Whether the trial court was correct in finding that the dispatcher's testimony and the arresting officer's testimony properly explained the discrepancy between the inconsistent time-stamp notations on the dispatchers' log?

Id. As such, Petitioner's original appellate attorney did not raise a federal constitutional claim pertaining to Petitioner's perjury allegation in his Anders brief and neither did Petitioner in his first pro se appellate merits brief, which copied the Anders brief. ECF Dkt. #9-1 at 38-55.

         On October 31, 2013, the appellate judge granted Petitioner leave to raise any additional arguments in support of his appeal within 30 days and held counsel's motion to withdraw in abeyance pending further review and determination pursuant to Anders. Id. at 56-57. Subsequently, Petitioner, pro se, filed a second merits brief that supplemented his attorney's Anders brief but which presented no new claims or allegations of error. Id. at 56-77. The State filed a reply brief, and Petitioner filed a reply, which was filed on December 4, 2013. Id. at 80-100. Petitioner's first reply contained additional assignments of error, as follows:

1. During the suppression hearing, the court allowed the evidence to be used at trial when the Defendant was unlawfully stopped.
2. Dispatcher Sandy Placanica-Frazenskos (“Placanica”) committed perjury during trial.
3. The police officers violate[d] the Defendant's 4th Amendment [rights] by placing him in custody before a dispatch call without probable cause.
4. The prosecuting attorney Michael Burnett violate[d] the Defendant's 14th Amendment [rights] by admitting error in trial and concluding that it does not matter that there was error.
5. [Petitioner] was deprived of Due Process of the law when the trial court abused its discretion by allowing dispatcher Placanica to commit perjury during trial while the prosecutor acknowledge[d] the error.

Id. at 93-100. Petitioner raised his perjury allegations, for the first time, in his first appellate reply brief. Id. at 93-100. The appellate court acknowledged that Petitioner's reply brief included additional possible errors, but after further review, it found at least one issue of arguable merit regarding whether Petitioner was properly sentenced, an issue not raised in his current habeas corpus petition. Id. at 104-05. The court also appointed new appellate counsel for Petitioner. Id. at 105. The court instructed Petitioner's new appellate counsel to brief the arguable sentencing issue. Id. Accordingly, Petitioner's counsel prepared a new merits brief with the sole assignment of error based on the sentencing issue, which was reiterated in the second reply brief. Id. at 107-23, 181-91. In its March 23, 2015 decision on the merits, the Court of Appeals addressed the sole assignment of error and found it was without merit. Id. at 193-200. Petitioner's appellate attorney subsequently filed a motion to withdraw as counsel, which the state appellate court granted. Id. at 206-08.

         C. Ohio Supreme Court

         On April 30, 2015, Petitioner, pro se, executed a notice of appeal and accompanying memorandum in support to the Ohio Supreme Court, both of which were received and filed on May 6, 2015. ECF Dkt. #9-1 at 209-21. In his memorandum in support, Petitioner presented the same five propositions of law that were contained in his reply brief at the appellate level. Id. at 93-100, 216. In addition, Petitioner also stated: “As claim of ‘Ineffective assistance of appellate counsel' for failing to raise issues that were not raised in my original appeal, the defendant shows that a ‘genuine issue' exists that he was deprived of effective assistance of appellate counsel. . . Neither attorney did as asked of defendant[sic].” Id. at 216 (citing State v. Spivey, 701 N.E.2d 696 (Ohio 1998)). The State filed a response. Id. at 236-48. On July 22, 2015, the Supreme Court of Ohio declined to accept jurisdiction of the appeal pursuant to S.Ct.Prac.R. 7.08(B)(4). Id. at 249.

         D. Post-Conviction Relief

         On November 7, 2013, while his direct appeal was pending, Petitioner filed a pro se petition to vacate or set aside the judgment of conviction or sentence in the trial court, raising the following claims:

1. Violation of rights to due process, fair trial, equal protection, effective assistance of counsel, and cruel and unusual punishment. Defendant was in ...

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