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Hawkins v. Shoop

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

December 4, 2019

BRIAN HAWKINS, Petitioner,
v.
TIMOTHY SHOOP, Warden, Chillicothe Correctional Institution Respondent.

          District Judge Thomas M. Rose

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE

         This is a habeas corpus case brought pro se by Petitioner Brian Hawkins pursuant to 28 U.S.C. § 2254. Hawkins seeks relief from his convictions for rape and kidnapping in the Common Pleas Court of Montgomery County, Ohio. The case is ripe for consideration on the Petition (ECF No. 3), the State Court Record (ECF No. 10), the Return of Writ (ECF No. 11), and Petitioner's Reply (ECF No. 18).

         Litigation History

         Hawkins was indicted in May 2015 for the July 2002 rape and kidnapping of A.J., a person then fifteen years old. After his motion to dismiss for lack of a speedy trial was denied, Hawkins was convicted by a jury. The trial judge then merged the rape and kidnapping counts and sentenced him to ten years' imprisonment.

         Hawkins appealed to the Second District Court of Appeals which affirmed the trial court judgment. State v. Hawkins, 2018-Ohio-867 (Ohio App. 2nd Dist. Mar. 9, 2018), appellate jurisdiction declined, 153 Ohio St.3d 1453, 2018-Ohio-3026 (2018). On June 11, 2018, Hawkins filed an Application to Reopen his direct appeal to raise nine assignments of error the omission of which allegedly constituted ineffective assistance of appellate counsel. On July 11, 2018, he filed another such application with eleven omitted assignments of error. The Second District dismissed both of these as untimely and Hawkins did not appeal to the Supreme Court of Ohio.

         While the direct appeal was pending, Hawkins filed a petition for post-conviction relief under Ohio Revised Code § 2953.21. That petition remained pending when the Return of Writ was filed here on August 14, 2019 (ECF No. 11, PageID 2241).

         Hawkins' Petition here, purportedly mailed March 11, 2019, pleads the following grounds for relief:

Ground 1: The trial court erred in overruling Mr. Hawkins' motion to dismiss, as the thirteen year [sic] pre-indictment delay caused actual prejudice to his right to a fair trial; thus violating his due process rights.
Supporting Facts: Thirteen year [sic] pre-indictment delay, without new evidence.
Prosecutor claimed original casefile, mental health and hospital records missing.
Witnesses deceased and/or unavailable.
Alleged victim not remember incident [sic] and provided inconsistent testimony.
Ground 2: The trial court erred in finding Mr. Hawkins guilty of rape and kidnap as the convictions are against the manifest weight of the evidence.
Supporting Facts: Physical evidence supports events as described by petitioner.
Alleged victim not remember incident [sic] and provided inconsistent testimony.
Court cut short defendant-petitioner's testimony.
Counsel failed to provide notes of investigator's conversations with alleged victim, subsequently hindering trial counsel from effective cross-examination
Ground 3: The cumulative effect of errors deprived Mr. Hawkins of a fair trial warranting a reversal under the cumulative error doctrine.
Supporting Facts: Thirteen year [sic] pre-indictment delay, without new evidence.
Inconsistent testimony.
Court violated state statutes and rules of evidence.
Prosecutorial misconduct, including manipulation, fabrication and loss of evidence/Brady violation.
Ineffective assistance of counsel.
Ground 4: Hawkins' convictions were based upon insufficient evidence.
Supporting Facts: No physical evidence.
Alleged victim not remember incident [sic] and testimony inconsistent and inconclusive with itself.
Withheld exculpatory Brady material.
Prosecutorial misconduct manipulated and fabricated evidence.
Alleged crime scene viewed by jury had significantly changed after thirteen years.
Exculpatory evidence withheld.
Ground 5: Hawkins' counsel provided constitutionally ineffective assistance under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article I, Sec. 10 and 16 of the Ohio Constitution.
Supporting Facts: Trial counsel failed to call alleged victim to testify at hearing of motion to dismiss; erred requesting for jury viewing of alleged crime scene that had significantly changed after thirteen years; failed to argue for relevant exculpatory evidence; failed to provide specific notes in order to effectively cross-examine key witness; failed to object to court's violations of state statutes and rules of evidence; failed to object to many instances of prosecutorial misconduct.
Ground 6: The trial court denied Hawkins his right to due process and a fair trial in violation of the Fifth and Fourteenth Amendment to the United States Constitution and Article I, Sec. 16 of the Ohio Constitution.
Supporting Facts: Trial court permitted viewing of alleged crime scene that had significantly changed after thirteen years; cut short the testimony of defendant-petitioner in pretrial motion to dismiss hearing, as well as during trial; violated Ohio statutes and rules of evidence.
Ground 7: Prosecutor misconduct so infected these proceedings with unfairness as to make the resulting conviction a denial of due process.
Supporting Facts: Prosecutor withheld exculpatory evidence, violating Brady; misrepresented evidence; produced false evidence.
Ground 8: Appellate counsel was ineffective for failing to present issues not fully considered that should have been that prove an unreliable process was used to obtain a wrongful criminal conviction prejudicing appellate [sic].
Supporting Facts: Appellate counsel failed to properly and thoroughly demonstrate in detail issues as well as dead bang winning issues specifically requested by defendant-petitioner that show due process violations were used to unconstitutionally convict defendant-petitioner, inter alia: trial counsel was unprepared at motion to dismiss hearing and at trial; trial counsel failed to object to many due process violations, including thirteen year [sic] pre-indictment delay, hearsay, confrontation, prosecutorial misconduct that materially influenced trial; trial counsel failed to investigate case, including not motioning for discovery, or Brady exculpatory evidence; trial counsel failed to object to trial court's plain errors, including unconstitutional sidebars and violations of Ohio statutes; trial court failed to issue and trial counsel failed to request necessary case specific jury instructions; appellate counsel also failed to use 11-R evidence trial court specifically reserved for appeal; trial and appellate counsel refused to provide defendant-petitioner with all judgment entries and transcripts of proceedings.

(Petition, ECF No. 3, PageID 39-52.)

         Analysis

         Although Hawkins pleads eight numbered grounds for relief, many of his grounds contain sub-claims which are logically and legally related to different constitutional rights than the right claimed in the ground itself. The Magistrate Judge believes it will be useful to eliminate from further consideration those claims and sub-claims which have not been preserved for decision on the merits.

         Cognizability

         Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 6 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Barclay v. Florida, 463 U.S. 939 (1983); Smith v. Phillips, 455 U.S. 209, 221 (1982). "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.).

         Several of the claims made by Hawkins are not for federal constitutional violations and therefore not cognizable in this proceeding. They are as follows:

         Ground Two claims that Hawkins' conviction is against the manifest weight of the evidence. A weight of the evidence claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986); Ob'Saint v. Warden, Toledo Correctional Inst., 675 F.Supp.2d 827, 832 (S.D. Ohio 2009).

         Ground Three makes a claim of cumulative error. As in Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011), Hawkins “argues that the cumulative effect of these errors rendered his trial fundamentally unfair.” Id. Post-AEDPA, however, that claim is not cognizable in habeas corpus. Id., citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005). Cumulative error claims are not cognizable because the Supreme Court has not spoken on the issue. Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006), citing Moore, supra.

         Grounds Two and Three should therefore be dismissed for failure to state a federal constitutional claim on which relief can be granted in a habeas corpus case.

         Procedural Default

         The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722');">501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review.'” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.

[A] federal court may not review federal claims that were procedurally defaulted in state court-that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is an important “corollary” to the exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). “Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address” the merits of “those claims in the first instance.” Coleman [v. Thompson, ] 501 U.S. [722, ] 731-732, 111 S.Ct. 2546, 115 L.Ed.2d 640[(1991)]. The procedural default doctrine thus advances the same comity, finality, and federalism interests advanced by the exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S.Ct. 2058, 2064 (2017).

“A claim may become procedurally defaulted in two ways.” Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). First, a claim is procedurally defaulted where state-court remedies have been exhausted within the meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is procedurally defaulted where the petitioner failed to exhaust state court remedies, and the remedies are no longer available at the time the federal petition is filed because of a state procedural rule. Id.

Lovins v. Parker, 712 F.3d 283, 295 (6th Cir. 2013).

         Under Ohio law, ineffective assistance of trial counsel claims or indeed any constitutional claims that depend on evidence outside the appellate record must be raised in a petition for post-conviction relief under Ohio Revised Code § 2953.21 because evidence cannot be added to the record on direct appeal. State v. Madrigal, 87 Ohio St.3d 378, 390-91 (2000); State v. Hartman, 93 Ohio St.3d 274, 299 (2001); State v. Keith, 79 Ohio St.3d 514, 536 (1997), citing State v. Scott, 63 Ohio App.3d 304, 308 (1989). Conversely, constitutional claims including ineffective assistance of trial counsel claims which are supported by the appellate record must be raised on direct appeal and will be barred by res judicata if attempted to be raised later in post-conviction. State v. Reynolds, 79 Ohio St.3d 158, 161 (1997); State v. Steffen, 70 Ohio St.3d 399, 410 (1994); State v. Lentz, 70 Ohio St.3d 527 (1994); In re T.L., 2014-Ohio-1840, ¶ 16, 2014 Ohio App. LEXIS 1804 (8th App. Dist. 2014).

         In response to Ground Five, ineffective assistance of trial counsel, the Warden notes that Hawkins preserved for review five alleged instances, but notes that he also asserts that his trial attorney “failed to object to court's violations of state statutes and rules of evidence” and “failed to object to many instances of prosecutorial misconduct.” (Return, ECF No. 11, PageID 2267). These claims are unspecific as to particular occasions of alleged trial counsel omissions. More importantly, the Warden notes that all of these omissions would have been apparent in the direct appeal record, but were not raised in that proceeding. Under those circumstances, the claims are barred by Ohio's criminal res judicata doctrine.

         In his Eighth Ground for Relief, Hawkins claims he received ineffective assistance of appellate counsel when his direct appeal attorney failed to raise a number of meritorious assignments of error on direct appeal. The Warden asserts these claims are barred by Hawkins' procedural default in failing to raise them in the correct manner under Ohio law, that is, by including them in a properly filed application to reopen the direct appeal under Ohio R. App. P. 26(B).

         The Warden asserts that Hawkins' failures, which the First District Court of Appeals held against him, were in filing in an untimely manner, exceeding the ten-page limit established in the Rule, and failing to attach relevant portions of the record (Return, ECF No. 11, PageID 2282-83). Furthermore, after that adverse decision, Hawkins failed to timely appeal to the Supreme Court of Ohio. Id. at PageID 2284.

         As excusing cause, Hawkins claims the Clerk of Courts “filed with a false cover page on top of Petitioner's actual cover page.” (Reply, ECF No. 18, PageID 2322, asking the Court to compare ECF No. 10, PageID 493 with PageID 532.) “Additionally, the Clerk jumbled the pages of Petitioner's Application. (Doc. 10, PageID here listed in the order originally intended to have appeared: 532-44, 498-500, 497, 494-96, 502-15, 549, 551-74, 545-48, 516-20, 524, 521-22, 527-29, 501, 531.” Id.

         On August 15, 2018, the Second District Court of Appeals had before it Hawkins' delayed application for reopening which he had filed on July 11, 2018. State v. Hawkins, Appellate No. 27019 (State Court Record, ECF No. 10-1, PageID 634 et seq.). In it the court noted that its decision on direct appeal affirming the conviction had been entered March 9, 2018. Id. at ECF No. 637. The court found Hawkins had filed a document labeled “Reply” in Appellate No. 26962 on June 11, 2018, and noted that that appellate case had been dismissed for lack of jurisdiction. Id.

         The referenced document appears in the State Court Record at Ex. 46, PageID 493-97 and bears Appellate No. CA 026962 in what appears to be Hawkins' handwriting. It appears that the pages were misordered in filing (assuming they appear in the State Court Record as they appear in the files of the Montgomery County Clerk of Courts) because PageID 532, which appears to be a title page for Hawkins' Application for Reopening, bears no date stamp from the Clerk. Ordinarily a Clerk's date stamp would be on the first page. Here the Court of Appeals Clerk's date stamp appears on PageID 493, a page Hawkins labeled “Reply.”

         However that misordering came about, it does not provide excusing cause. The Second District denied the Application not because it was not in order, but because it was not timely. Hawkins told the court of appeals he was late because of lack of funds, but the court rejected that excuse, considering “the many documents he has had the ability, and has chosen, to file.” (Opinion, State Court Record, ECF No. 10-1, PageID 639). It also held against him the fact that he had filed in excess of ten pages and had failed to attach the required portions of the record. As noted by Respondent, Ohio has a legitimate interest independent of federal law in having claims of ineffective assistance of appellate counsel presented in an orderly fashion that permits appropriate consideration. Aside from the prolixity of the filing, failure to timely file a 26(B) application has been held by the Sixth Circuit to be an adequate and independent ground of state decision. Hoffner v. Bradshaw, 622 F.3d 487, 504-505 (6th Cir. 2010).

         Separate and apart from the deficiencies in filing the 26(B) application, Hawkins also defaulted his ineffective assistance of appellate counsel claims by never appealing to the Supreme Court of Ohio from the Second District's denial. Here again Hawkins blames that failure on the clerk's misordering (Reply, ECF No. 18, PageID 2323). He attaches a document labeled “Notice of Delayed Appeal of Appellant Brian Hawkins” which shows it was received by the Clerk of the Supreme Court of Ohio on October 16, 2018. (State Court Record, ECF No. 18, PageID 2326.) He also attached a document labeled “Notice of Appeal” which bears “received” stamps of September 27, 2018, and October 16, 2018. Id. at PageID 2327. He attaches no correspondence from the Supreme Court Clerk explaining why neither of these documents was filed, but states in his Reply that it is because the Clerk of the Supreme Court “is required to refuse to file an [sic] delayed appeal of an [sic] 26(B) Application for reopening . . . which is what the Clerk did.” (Reply, ECF No. 18, PageID 2323.) Failure to file an appeal to the Supreme Court of Ohio from an adverse ruling of a court of appeals within forty-five days is an adequate and independent state ground of decision. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004).

         Therefore, the unspecific claims of ineffective assistance of trial counsel in Ground Five and all of the claims of ineffective assistance of appellate counsel in Ground Eight are procedurally defaulted and should be dismissed on that basis.

         Ground One: Pre-Indictment Delay

         The offense in suit happened in July 2002 and Hawkins was not indicted until May 2015. Claiming that this delay deprived him of his rights under the Due Process Clause of the Fourteenth Amendment, Hawkins filed a pre-trial motion to dismiss on that basis. Having been unsuccessful in the state courts, he reiterates that claim in his First Ground for Relief. The Warden concedes the claim is preserved for merits review here and contends the Second District's decision is entitled to ...


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