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.

Williamson v. May

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

January 7, 2020

Michael Williamson, Petitioner,
v.
Harold May, Warden, [1] Respondent.

          MEMORANDUM OPINION AND ORDER

          Jeffrey J. Helmick United States District Judge.

         I. Introduction

         Petitioner Michael Williamson seeks a writ of habeas corpus under 28 U.S.C. § 2254, concerning his conviction on charges of rape of a minor in the Cuyahoga County, Ohio Court of Common Pleas. (Doc. No. 1). Magistrate Judge Kathleen B. Burke reviewed the petition as well as the related briefing pursuant to Local Rule 72.2(b)(2) and recommends I dismiss the petition in part and deny it in part. (Doc. No. 34). Judge Burke also recommends I deny Williamson's motion for a stay. (Doc. No. 8). Williamson has filed objections to Judge Burke's Report and Recommendation. (Doc. No. 41).

         Williamson also has filed three motions to amend his petition, (Doc. No. 37; Doc. No. 38; Doc. No. 43), as well as a motion for the appointment of counsel. (Doc. No. 42). The briefing on those motions is complete. For the reasons stated below, I overrule Williamson's objections, adopt Judge Burke's Report and Recommendation, and deny Williamson's motions to amend and for counsel.

         II. Background

         On December 21, 2001, a Cuyahoga County, Ohio jury found Williamson guilty of twelve counts of rape of a minor. He received 12 consecutive life sentences. In March 2004, Williamson filed a pro se habeas petition in the United States District Court for the Northern District of Ohio, challenging his conviction on the alleged grounds of prosecutorial misconduct, ineffective assistance of counsel, and failure to disclose evidence. That petition was denied. Williamson's appeal to the Sixth Circuit Court of Appeals and his petition to the Supreme Court of the United States both were unsuccessful.

         In 2012, Williamson filed a motion to correct his sentence, claiming the trial court had committed an error in the manner in which it imposed a term of post-release control. The trial court denied the motion and Williamson appealed. In August 2013, the Eighth District Court of Appeals rejected some of Williamson's assignments of error, but concluded the sentencing entry failed to include a proper notification of post-release control and remanded the case to the trial court to correct the omission with a nunc pro tunc judgment entry. (Doc. No. 13-1 at 384). Williamson appealed that decision to the Supreme Court of Ohio.

         While that appeal was pending, the trial court issued a corrected journal entry on September 27, 2013, pursuant to the Eighth District's remand order. Williamson also appealed that entry, claiming the nunc pro tunc journal entry was improper because the trial court had not imposed post-release control during the initial sentencing hearing.

         The Supreme Court of Ohio declined to accept jurisdiction of Williamson's appeal of the Eighth District's August 2013 decision on December 24, 2013. In February 2014, while Williamson's appeal of the September 2013 nunc pro tunc entry was pending, the trial court held a resentencing hearing for the purpose of meeting the statutory requirements for imposition of a term of post-release control. Williamson, through appointed counsel, appealed the February 2014 resentencing hearing on March 14, 2014.

         On September 11, 2014, the Eighth District issued an opinion concerning both the September 2013 nunc pro tunc entry and the February 2014 resentencing hearing. It concluded the nunc pro tunc remand was improper because a review of the sentencing transcript showed the trial court had not initially advised Williamson about post-release control, and that the trial court did not have jurisdiction to hold the 2014 resentencing hearing because the September 2013 entry was on appeal at the time of the 2014 resentencing hearing. (Doc. No. 13-1 at 492-94).

         On November 6, 2014, Williamson again appeared with appointed counsel for a resentencing hearing, limited to the imposition of post-release control. Williamson appealed, but his appeal was unsuccessful. After filing a variety of other state court motions, Williamson filed his present application for a writ of habeas corpus on February 28, 2018.

         Williamson does not object to Judge Burke's recitation of the factual and procedural history of Williamson's case, and I adopt those sections of the Report and Recommendation in full. (Doc. No. 34 at 2-19).

         III. Standard

         Once a magistrate judge has filed a report and recommendation, a party to the litigation may “serve and file written objections” to the magistrate judge's proposed findings and recommendations, within 14 days of being served with a copy. 28 U.S.C. § 636. Written objections “provide the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately . . . [and] to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute.” Kelly v. Withrow, 25 F.3d 363, 365 (6th Cir. 1994) (quoting United States v. Walters, 638 F.3d 947, 949-50 (6th Cir. 1981) and Thomas v. Arn, 474 U.S. 140, 147 (1985)). A district court must conduct a de novo review only of the portions of the magistrate judge's findings and recommendations to which a party has made a specific objection. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).

         IV. Discussion

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) prohibits the issuance of a writ of habeas corpus “with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d). “The prisoner bears the burden of rebutting the state court's factual findings ‘by clear and convincing evidence.'” Burt v. Titlow, 571 U.S. 12, 18 (2013) (quoting 28 U.S.C. § 2254(e)(1)).

         Williamson does not clearly or consistently identify or describe his grounds for relief in his petition or his briefing. Respondent proposed a summary and numbering system for his claims, which Judge Burke adopted and to which Williamson does not object. I will adopt the same categorization of Williamson's claims:

GROUND ONE: Special First Assignment of Error and Grounds for Petition: Remand to the trial Court is Mandated Under the Federal Constitution for a constitutionally proper hearing on, and issuance of and for, a judgment of conviction and sentence, from which petitioner must be given his constitutionally mandated rights under the Constitution of the United States, of ab initio appeal and collateral attack on that judgment pursuant to, inasmuch as they are not in violation of that mandate, the laws of the State of Ohio.
Doc. 1, p. 8; Doc. 1-1, pp. 2, 19.
GROUND TWO: Special Second Assignment of Error and Grounds for Petition: Each of the other grounds for this Petition call for the effectuation of an remedy, Williamson asserts, by order and judgment of this Court, of the reversal of the T.C. judgment of 11.6.2014 (and its journal entry of 11.6.2014), and Williamson's remand to the trial court at a position in the state in which Williamson has yet to receive an effective, full and “real” judgment of conviction and sentence.
The courts of Ohio, however, pursuant to Fischer, supra, hold that the 11.6.2014 sentence-only “judgment” was a valid constitutionally permitted judgment[.] If this is so, Williamson here argues: (1) [another resentencing would violate] the due process clauses, and/or the prohibition against cruel and unusual punishment clause (incorporated into the due process clause of the 14 Amendment). . . .
Argued in the alternative, since the Ohio appellate courts will not entertain a further appeal directly from the 2002 “conviction” portion of the judgment because they would invoke a state collateral estoppel rule/which contradicts the holding of Stansell, supra, . . . grounds, or claims Williamson makes in his petition stemming directly from the 2002 conviction/sentence new, or not are, and should be deemed, exhausted for § 2254 purposes.
Doc. 1, pp. 12-13; Doc. 1-1, pp. 2, 19.
GROUND THREE: Prosecutorial Misconduct.
Supporting Facts: A trial court commits plain error by permitting the prosecutor (1) to elicit inadmissible, irrelevant and highly prejudicial hearsay testimony, (2) to cross-examine defense witnesses' regarding the truth of additional inadmissible, irrelevant and highly prejudicial hearsay statements not in evidence, and (3) to argue the truth of further irrelevant, inadmissible and highly prejudicial hearsay statement not in evidence to the jury in closing arguments.
GROUND FOUR: Ineffective Assistance of Counsel.
Supporting Facts: A criminal defendant is denied the effective assistance of counsel where counsel failed to enter rudimentary objections and grossly mishandled an exculpatory witness by failing to offer his testimony, failing to adequately proffer that his testimony would have been that he coached the alleged victim's accusations, and failing to file a motion for new trial based upon this exculpatory witness's more detailed post-verdict statements.
GROUND FIVE: Withholding evidence.
Supporting Facts: On April 20, 2001, appellant was arrested, during the arrest, officers removed a blanket from appellant's home saying that appellant's DNA was on it. Appellant was ordered to take a DNA test. During the trial, this item that was taken from appellant's home was never entered in as evidence. If this item would have been at trial, it would of showed that the wrong person was being charged. Because of prosecution's and defense counsel's multiple instances of misconduct, both prosecutor and defense counsel failed to protect appellant's right to seek dire[ct] appellant's review of the inadmissibility of this item which was taken from appellant's home. This fell well below an objective standard of reasonableness.
Doc. 1, p. 33; Doc. 1-1, p. 2.
GROUND SIX: Habeas Grounds A and B: Appointed appellate counsel Sweeney made one ‘maybe' claim in his Anders brief, that Williamson may have been improperly advised on his state PRC right/obligation. . . . Williamson had a right . . . to file his own brief. . . . Williamson never was delivered the notice. . . .
GROUND SEVEN: Habeas Ground C: Direct Appeal Anders Brief counsel Sweeney provided ineffective appellate counsel in failing to raise the 11.6.2014 trial court's error in failing to impose a “Judgment” passing constitutional muster at hearing, and the same, in writing thereafter in a judgment (journal) entry. Constitutionally speaking, it was inherently ineffective assistance for appellate counsel not to even raise an underlying argument of lack of jurisdiction, and ineffectiveness of 11.6.2014 counsel for not objecting to lack of jurisdiction. . . . Failure to raise a dispositive motion causing a lesser sentence constitutes ineffective assistance of appellate counsel. . . .
GROUND EIGHT: Habeas Ground D: Direct Appeal Anders brief counsel Sweeney provided ineffective assistance of counsel in failing to raise the 11.6.2014 trial court's harmful error in failing to grant Williamson leave to alloc[u]te.
GROUND NINE: Habeas Ground E: (A) The indictment under which Williamson was convicted was unconstitutionally void for duplicitousness [sic]. Anders Appellate counsel Sweeney was ineffective for failing to raise lack of jurisdiction to proceed at all on 11.6.2014 because the indictment was duplicitous [sic] or otherwise in violation of the cruel and unusual, double jeopardy and due process clauses. . . . (B) It was obvious this indictment was carbon-copy to anyone reading it. . . .
GROUND TEN: Habeas Ground F: Williamson is being denied finality of sentencing under the due process, double jeopardy, and cruel and unusual punishment clauses, in these continuing “resentencings” caused by trial court error or malice.
GROUND ELEVEN: Habeas Ground G: This is a grounds based upon Williamson's underlying claim that, the “allied” offense notion of double jeopardy codified in the O.R.C. (State v. Ruff, 143 Oh. St. 3d 114, 117-118 (2015)) required that Williamson be sentenced for only one offense of rape, not twelve; or that the sentences should have run concurrently.
Doc. 1-1, pp. 2, 21, 24-25, 28, 30-31, 32.
GROUND TWELVE: Habeas Ground 1: Given the Ohio trial court's previous history of judicial vindictiveness against this Defendant and others similarly situated, coupled with the trial court's failure to provide substantive Findings of Fact and Conclusion of Law in its JE denial of Williamson's PCRP, the 5th and 14th Amendments' due process clauses mandate the vacation of the underlying criminal convictions, and/or sentences.
GROUND THIRTEEN: Habeas Ground 2: The trial court erred in denying Petitioner's PCRP motion for appointment of counsel.
Claim No. 1: Re-Sentencing Hearing Counsel (11.6.2014) failed to raise the lack of the trial court's jurisdiction to enter judgment on conviction of the 12 counts or to sentence or resentence the Defendant to one life-sentence per count because of a violation of the Defendant's federal and state constitutional rights to due process of law and a fair trial and against double jeopardy, because all the counts of the indictment, as well as the descriptions in the Bill of Particulars were, duplicative, U.S. v. Foster, 765 F.3d 610 (6th Cir. 2014), HN. 1; and, accordingly, void.
Claim 2: Re-Sentencing Counsel (11.6.2014) failed to raise the lack of the trial court's jurisdiction to resentence unless it actually did vacate the previous sentencing and resentence in full pursuant to the order of the Cuyahoga County Court of Appeals in State v. Williamson, No. CA-102320....
Claim 3: Sentencing Counsel failed to raise the lack of the trial court's jurisdiction to resentence the Defendant to add additional punishment, post-release control, or 5 years of post-release control, upon a conviction for which the defendant had already received punishment, and for which he had already served prison time, with jail-time credit, as of 11.6.2014, of 13 years, because the imposition of the additional punishment, was, and is, a violation of the double jeopardy and due process of law clauses of the U.S. and Ohio Constitutions. See, Hernandez v. Kelly, 108 Ohio St.3d 395 (2006).
Claim 4: Sentencing Counsel failed to raise the voidness of resentencing, or sentencing, the Defendant to 12 life-sentences because of the trial court's vindictiveness caused by trial counsel's ineffectiveness in promising the Defendant a plea agreement (see, infra) not realizable, causing the Defendant to exercise his right to go to trial and to confront the witnesses against the Defendant, especially the victim, called as a prosecution, not a defense witness at trial, in violation of the Defendant's rights to Ohio and federal due process of law.
Claim 5: Sentencing Counsel failed to raise the voidness of the resentencing hearing because the Defendant was being brought back, and had been brought back previously, from his places of incarceration all over Ohio to the trial court for repetitive resentencings in disregard of due process of the law, and against the prohibition of cruel and unusual punishment.
Claim 6: Re-Sentencing Counsel (11.6.2014 Hearing) offered the Defendant a new plea deal to a limited reasonable term of years, and then told him inside the courtroom he was not going to get it. This so mentally deranged the Defendant he was not capable of allocuting intelligibly, or understanding the nature of the sentencing hearing to be able to effectively assist his counsel. See Lafler v Cooper, 132 S.Ct. 1376 (2012).
Claim 7: The trial court lacked subject matter jurisdiction, a federal constitutional right, to enter judgment on conviction of the 12 counts or to sentence or resentence the Defendant to one life-sentence per count because of a violation of the Defendant's federal constitutional rights to due process of law, and a fair trial, and against double jeopardy because all the counts of the indictment, as well as the description in the Bill of Particulars, were duplicative. See, Foster supra. The indictment itself, therefore, was void.
Claim 8: This Court lacked subject matter jurisdiction, a federal constitutional right, to resentence the Defendant, unless it actually did vacate all previous sentences, and resentenced the Defendant, in full, which it did not.
Claim 9: The Trial Court lacked subject matter jurisdiction, a federal constitutional right, to add an additional punishment of 5 years mandatory PRC after the defendant had already received punishment and had served 13 years of his sentence because such a resentencing was in violation of the double jeopardy and due process clause of the U.S. Constitution, Foster, supra, HN. 1.
Claim 10: The Trial Court lacked subject matter jurisdiction to sentence the Defendant to 12 consecutive life sentences plus $240, 000.00 in fines, because Defendant went to trial, a right he had under the 5th and 6th Amendments. . . .
Claim 11: The Trial Court lacked subject matter jurisdiction to re-sentence the Defendant because the Defendant was being brought back to the common pleas court repetitive times for known-to-be-violative-of-due-process sentencings, in disregard of his federal and Ohio constitutional rights to due process of law and against cruel and unusual punishment, see, Hernandez v. Kelly, supra.
Claim 12: The trial court lacked subject matter jurisdiction to resentence the Defendant when it affirmatively denied him his Ohio and federal due process right of allocution at sentencing, and his concomitant right under R. Crim P. 32. ...

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.