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.

Barga v. Collins

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

December 27, 2019

ROBERT L. BARGA, Petitioner,
v.
EMMA COLLINS, Warden, Pickaway Correctional Institution, Respondent.

          Thomas M. Rose District Judge

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This action pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus is ripe for decision on the Petition (ECF No. 1), the State Court Record (ECF No. 4), the Return of Writ (ECF No. 5), and the Reply (ECF No. 9).

         Petitioner has also filed an Objection to the completeness of the Respondent's Answer (ECF No. 10). While this objection should have been included in the Reply, the Magistrate Judge will consider it on the merits. Having reviewed the Return of Writ, the Court finds it complies with the Order for Answer by raising appropriate defenses to the claims Petitioner has made.

         Litigation History

         Barga was indicted by the Shelby County, Ohio, grand jury in January 2017 and charged with one count of engaging in a pattern of corrupt activity in violation of Ohio Revised Code § 2923.32 (Count 1), three counts of forgery in violation of Ohio Revised Code § 2913.31(A)(3) (Counts 2-4), and one count of possessing criminal tools in violation of Ohio Revised Code § 2923.24 (Count 5). He was found guilty of all charges at trial and sentenced to concurrent prison terms of seven years on count one and eleven months each on the other counts. He appealed, claiming there was insufficient evidence to convict on Counts Two, Three, and Four and that the convictions on Counts Two and Three were against the manifest weight of the evidence. The Third District Court of Appeals affirmed the convictions on July 16, 2018. State v. Barga, 2018-Ohio-2804 (3d Dist. Jul. 16, 2018). Barga did not appeal to the Supreme Court of Ohio.

         On October 22, 2018, Barga filed an application to reopen his direct appeal under Ohio R. App.P. 26(B) to raise four claims of ineffective assistance of appellate counsel. The Third District denied that application on December 3, 2018, and his application for reconsideration on January 7, 2019. On January 22, 2019, Barga filed an appeal in the Supreme Court of Ohio pleading two propositions of law related to his pattern of corrupt activity conviction, but the Supreme Court declined to exercise jurisdiction. State v. Barga, 155 Ohio St.3d 1414 (2019). Barga's state habeas corpus petition, filed directly in the Supreme Court, was also unsuccessful.

         Barga next filed his instant Petition, pleading the following four grounds for relief:

Ground One: The trial court violated the Petitioner's rights to due process of law and fair trial when the indictment was insufficient to charge the offense and absence of sufficient evidence the Petitioner was found guilty of Engaging in a pattern of Court Activity Violating the Petitioner's Fifth and Fourteenth Amendments to the United States Constitution, Article I, Section 16 of the Ohio constitution.
Supporting Facts: The indictment failed to include necessary elements of the E.P.C.A offense, (“proceeds element”). As it pertained to the Petitioners case, required for a conviction of the E.P.C.A. offense. By doing so, the State lacked sufficient evidence to convict the Petitioner of E.P.C.A, nor did the Forgery offense contained in the indictment exceed one thousand dollars to be guilt of the E.P.C.A offense.
Ground Two: The trial court lacked subject matter jurisdiction and lacked statutory authority to convict the Petitioner of violating R.C. 29.23.32 when the trial court failed to charge the jury of the proceeds element and applicable law of the “corrupt activity” statute under R.C. 2923.31 (I)(2)(c), as it pertains to the Petitioner's case as required for a conviction Engaging in a pattern of corrupt activity. The trial court removed the States burden of proof by failing to present the jury the required proceeds element and applicable law of corrupt activity under R.C. 2921.31 (I)(2)(c), preventing the jury to act as the fact finder. As a result, the trial court violated the Petitioners rights to a fair trial and due process of law guaranteed him under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution.
Supporting Facts: The trial court gave the jury errorous [sic] definition of corrupt activity that was designed to mislead the jury. The trial court failed to instruct the jury on the Corrupt Activity status that is required before a conviction of the E.P.C.A. offense can be obtained.
Ground Three: The trial court violated the Petitioner's right to effective Assistance of counsel, and confrontation of adverse witnesses, when the Petitioner was found guilty of E.P.C.A and violated his right to due process of law and fair trial, violating the Petitioners Fifth and Fourteenth Amendments to the U.S. Constitution, Article I Section 10 of the Ohio Constitution, and his Sixth Amendment to the U.S. Constitution, Article I section 16 of the Ohio Constitution.
Supporting Facts: The trial court filed an order granting the Defense a Bill of Particulars and ordered the Shelby County prosecutor to furnish the Petitioner with a Bill of particulars. The Bill of Particulars was necessary for a proper defense where the indictment was insufficient. The Shelby County prosecutor failed to furnish the bill of particulars as the trial court ordered. The Petitioners trial counsel was ineffective by forcing the Petitioner to trial without compelling the Shelby county prosecutor to furnish the bill of particulars preventing him from knowing the nature and conduct of the offense charged and preventing him from a proper defense. Also the Petitioners trial counsel was ineffective by allowing the prosecutor to commit misconduct by allowing the States witnesses to testify falsely and commit perjury on the stand in regards to their plea negotiations, effecting [sic] the effectiveness of the cross examination, confrontation of adverse witnesses.
Ground Four: The trial court lacked subject matter jurisdiction to convict the Petitioner without statutory authority when the indictment failed to charge the offense of Engaging in a pattern of corrupt activity, (count I in the indictment), in violation of R.C. 2923.32. The trial court violated the Petitioners right to a fair trial and due process of law guaranteed him under the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution and under Article I section 10 and 16 of the Ohio Constitution.
Supporting Facts: This claim is essentially the same as claim number one except without the “absence of sufficient evidence” and the Petitioner claims that that the conviction was void due to the trial courts lack of subject matter to convict the Petitioner of E.P.C.A, when the indictment fails to charge the offense. The indictment failed to charge the offense by failing to include the “required “corrupt activity offenses” necessary for a conviction of the E.P.C.A offense.

(Petition, ECF No. 1, PageID 5-9).

         Respondent concedes that the Petition was timely filed.

         Analysis

         Ground One: Insufficient Indictment

         In his First Ground for Relief, Barga claims the indictment on the engaging in corrupt activity count was insufficient to charge that offense, violating his due process rights under the Fifth and Fourteenth ...


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.