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Potee v. Warden, Chillicothe Correctional Institution

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

December 2, 2019

MICHAEL POTEE, Petitioner,
v.
Warden, Chillicothe Correctional Institution, Respondent.

          Susan J. Dlott District Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         Petitioner Michael Potee brought this habeas corpus action under 28 U.S.C. § 2254 with the assistance of counsel (Petition, ECF No. 1). The case is now ripe for decision on the Petition, the State Court Record (ECF No. 7), and the Return of Writ (ECF No. 8). Although Magistrate Judge Litkovitz set a deadline of twenty-eight days after the Return was filed for the Petitioner to file a reply (ECF No. 3, PageID 109), he has not done so and the time to do so expired January 11, 2019.

         The Magistrate Judge reference in the case was recently transferred to the undersigned to help balance the Magistrate Judge workload in the District (ECF No. 9).

         Litigation History

         The Clermont County grand jury indicted Potee on September 22, 2015, on one count of Involuntary Manslaughter (Ohio Revised Code § 2903.04(A))(Count 1); two counts of Corrupting Another With Drugs (Ohio Revised Code § 2925.02(A)(3))(Counts 2-3); one count of Trafficking in Drugs (Heroin) (Ohio Revised Code § 2925.03(A)(1)) (Count 4); and one count of Aggravated Trafficking in Drugs (Fentanyl) (Ohio Revised Code § 2925.03(A)(1)) (Count 5). (State Court Record, ECF No. 7, Exhibit 1, Indictment, PageID#121, No. 2015 CR 000515). Potee moved unsuccessfully to suppress the identification made by one of the victims, to transfer venue to Hamilton County, and to exclude evidence that he knew the deceased victim from prison. After verdict the trial judge merged some of the convictions and imposed an aggregate sentence of fifteen and one-half years.

         Represented by counsel, Potee took a direct appeal to the Ohio Court of Appeals for the Twelfth District which affirmed the trial court judgment. State v. Potee, 2017-Ohio-2926 (12thDist. May 22, 2017), appellate jurisdiction declined, 150 Ohio St.3d 1454 (2017). Potee filed a pro se Application to Reopen the direct appeal under Ohio R. App. P. 26(B), asserting four assignments of error whose omission he alleged constituted ineffective assistance of appellate counsel (State Court Record, ECF No. 7, PageID 326, et seq.). The Twelfth District denied the motion to reopen and a later motion for reconsideration (State Court Record, ECF No. 7, Exhibits 36 & 40). The Supreme Court of Ohio declined appellate jurisdiction. State v. Potee, 152 Ohio St.3d 1465 (2018).

         With the assistance of counsel, Potee then filed his Petition in this Court, pleading the following four grounds for relief:

Ground One: Improper venue.
Supporting Facts: The drug transaction occurred in Hamilton County and the alleged victim ingested and over dosed on the drug in Clermont County. Michael Potee committed no act in Clermont County.
Ground Two: The trial court gave an improper jury instruction regarding venue.
Supporting Facts: If an offense is committed in more than one county RC 2901.12 (A) governs the location of the indictment and trial because “the trial in a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element of the offense was committed.” Because the commission of the offense occurred entirely in Hamilton County, the jury should have been instructed with the precise language of R.C. 2901.12(A). Instead the court instructed the jury on the language of RC 2901(H)(3)” one or more of the offenses...or any one of the essential elements of any one or more of the charges-the offenses charged against the defendant were committed or occurred in this county as part of criminal conduct committed by defendant.”
Ground Three: The trial Court Erred by permitting prior bad acts of Potee as substantive evidence. Evidence Rule 404(B).
Supporting Facts: The State presented evidence of Potee's cellular text messages, in great detail, to demonstrate Potee had a history of dealing drugs. The State introduced evidence that Potee had $900 on a prior date to show Potee was a drug dealer and possed [sic] large amounts of cash at a time, other than the time in question. The trial court prohibited either party from discussing the $900 in a previous order dated April 12, 2016 and should have granted a mistrial.
Ground Four: Insufficiency of evidence.
Supporting Facts: Potee gave decedent/husband and wife one bindle of heroin. Decedent and wife split the bindle in half when they got to their Clermont County home where they ingested it. Husband died immediately and wife was revived with narcan. Decedent/husband had a high dose of fentanyl in his system. Narcan is not effective with fentanyl. The evidence is against Potee giving them fentanyl because wife was revived with narcan. There is no evidence Potee gave them fentanyl. The only logical explanation is only husband ingested fentanyl. There is plenty of evidence found in the home of decedent they were heavy drug users. Fentanyl caused decedent/husband death.

(Petition, ECF No. 1, PageID 5-10).

         Analysis

         Ground One: ...


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