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.

Warman v. Warden, Noble Correctional Institution

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

December 20, 2019

CHARLES F. WARMAN, Petitioner,
v.
WARDEN, NOBLE CORRECTIONAL INSTITUTE, Respondent.

          Michael R. Merz Magistrate Judge.

          OPINION AND ORDER

          SARAH D. MORRISON, UNITED STATES DISTRICT JUDGE

         On April 9, 2019, the Magistrate Judge issued a Report and Recommendation (“R&R”) recommending that the petition for a writ of habeas corpus under 28 U.S.C. § 2254 be denied. (ECF No. 15). After Petitioner filed Objections to the R&R (ECF No. 18), the matter was recommitted and the Magistrate Judge issued a Supplemental Report and Recommendation (“Supplemental R&R”) (ECF No. 20). After Petitioner filed Objections to the Supplemental R&R (ECF No. 24), the matter was again recommitted and the Magistrate Judge issued a Second Supplemental Report and Recommendation (“Second Supplemental R&R”) (ECF No. 27). Petitioner has filed Objections to the Second Supplemental R&R. (ECF No. 32). Pursuant to 28 U.S.C. § 636(b), the Court has conducted a de novo review. For the following reasons, Petitioner's Objections (ECF Nos. 18, 24, 32) are OVERRULED. The R&R, Supplemental R&R, and the Second Supplemental R&R (ECF Nos. 15, 20, 27) are ADOPTED and AFFIRMED. The petition is DENIED and this action is DISMISSED.

         The Court further DECLINES to issue a certificate of appealability (“COA”). Petitioner's motion for a COA (ECF No. 25), is DENIED.

         ANALYSIS

         Petitioner alleges four grounds for habeas relief from his state court convictions for felony domestic violence. The Court addresses them in turn, although not in the order that Petitioner has raised them.

         Ground Three - Appellate Counsel's Failure to Appeal Application to Re-open

         In Ground Three, Petitioner alleges that he received ineffective assistance of appellate counsel because appellate counsel failed to appeal the state appellate court's improper adjudication of one of his claims in his pro se motion to re-open his appeal. The Magistrate Judge concluded that this claim is without merit because Petitioner cannot demonstrate that he suffered prejudice under Strickland v. Washington, 466 U.S. 668 (1984). (R&R, ECF No. 15, at PAGE ID # 841-42). The Magistrate Judge reasoned that even if appellate counsel failed to appeal the state appellate court's decision about the claim, which appears to have been based on a misreading of that claim, Petitioner's pro se motion to re-open the appeal was granted, appellate counsel was appointed to represent him, and Petitioner was permitted to proceed with a re-opened appeal. Petitioner does not object to that conclusion, which is supported by the record. Accordingly, the Court finds that there is no merit to this ground for relief.

         Ground Four - Trial Counsel's Failure to Raise Hearsay Objections

         In Ground Four, Petitioner alleges that he entitled to relief because he received ineffective assistance of trial counsel when trial counsel failed to object to repeated hearsay testimony from one of the state's witnesses. The Magistrate Judge concluded that this claim is without merit because the state appellate court reasonably concluded that counsel's failure to object did not constitute deficient performance under Strickland. (Id. at PAGE ID # 845-46). The state appellate court held that the challenged testimony did not constitute hearsay under the state's evidence laws, and thus, counsel did not perform deficiently by failing to raise hearsay objections. The Magistrate Judge concluded that this was not an unreasonable application of Strickland. The Court agrees. See Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) (“Counsel was not required to raise meritless arguments to avoid a charge of ineffective assistance of counsel.”); Coley v. Bagley, 706 F.3d 741, 752 (6th Cir. 2013) (“Omitting meritless arguments is neither professionally unreasonable nor prejudicial.”). Petitioner does not object to this conclusion. Accordingly, the Court finds that there is no merit to this ground for relief.

         Ground One - Trial Counsel's Failure to Impeach Victim's Perjured Testimony

         In Ground One, Petitioner alleges that he received ineffective assistance of trial counsel because trial counsel failed to impeach the victim with perjured testimony. The Magistrate Judge concluded that this claim was procedurally defaulted because it was not raised by appellate counsel in Petitioner's re-opened appeal.[1] The Magistrate Judge further concluded that Petitioner could not establish cause and prejudice to excuse that default. Specifically, the Magistrate Judge concluded that Petitioner could not establish that appellate counsel's failure to raise the ineffective assistance of trial counsel claim constituted ineffective assistance of appellate counsel that could excuse default of the ineffective assistance of trial counsel claim. The Magistrate Judge correctly explained that in order to evaluate an ineffective assistance of appellate counsel claim, a court must assess the strength of the claim that appellate counsel failed to raise on appeal. See Henness v. Bagley, 644 F.3d 308, 317 (6th Cir. 2011) (citing Wilson v. Parker, 515 F.3d 682, 707 (6th Cir. 2008)). The Magistrate Judge then examined the underlying ineffective assistance of trial counsel claim and found that it was not compelling. Petitioner concedes that this claim is procedurally defaulted but objects to the Magistrate Judge's conclusion that the ineffective assistance of counsel claim was not compelling, and by extension, that appellate counsel did not perform deficiently by failing to raise it. (ECF No. 32, at PAGE ID # 947).

         The Court finds that this claim is procedurally defaulted. The Court further agrees with the Magistrate Judge's conclusion that the merit of the ineffective assistance of trial counsel claim was not so compelling that appellate counsel performed deficiently by failing to raise it. The Court initially notes that the cross-examination of witnesses falls within the area of tactics or strategy that courts typically do not attempt to second guess. “The cross-examination of a witness is a delicate task; what works for one lawyer may not be successful for another. Courts generally entrust cross-examination techniques, like other matters of trial strategy, to the professional discretion of counsel.” Henderson v. Norris, 118 F.3d 1283, 1287 (8th Cir. 1997). Further, “[i]mpeachment strategy is a matter of trial tactics, and tactical decisions are not ineffective assistance of counsel simply because in retrospect better tactics may have been available.” Dell v. Straub, 194 F.Supp.2d 629, 651 (E.D. Mich. 2002). Impeachment of a victim is particularly delicate.

         In any event, the Court agrees with the Magistrate Judge's conclusion that Petitioner's claim rests on a stilted reading of the trial transcripts. Petitioner contends that the victim lied when she testified that he “beat” her when both of them visited their friend at a house “out on Fairbanks Avenue” because he only threatened her when they were at that location. Petitioner insists that trial counsel should have confronted the victim about this falsehood and that he performed deficiently by failing to do so. It appears, however, that the victim's reference to Petitioner beating her while ...


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.