Opinion
Case No. 3:05-cv-310.
May 30, 2006
ORDER GRANTING MOTION TO DISMISS SECOND GROUND FOR RELIEF; REPORT AND RECOMMENDATIONS ON THE MERITS
This habeas corpus case is before the Court On Petitioner's Motion to Delete Ground Two of the Habeas Petition and his Traverse/Reply to the Respondent's Answer (Doc. No. 15). The Motion to Delete is GRANTED.
With Ground Two dismissed, the Petition now pleads two remaining grounds for relief as follows:
GROUND ONE: INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
SUPPORTING FACTS: Trial counsel failed to asks [sic] for instructions on a lesser-included offense of corruption [of] another with drugs, for defendant when he had asked for lesser-included instruction on defendants kidnapping charge and jury found defendant guilty on that charge. That question is asked here as to whether defendant should have been in the least given a chance to pose the question to the jury and let them decide the answer.
GROUND THREE: INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL (Mariah D. Butler, Att.).
SUPPORTING FACTS: Appellant filed a Appellate Rule 26(B) motion to the appeals court citing the issue of Appellate Counsel not raising the issue of lesser instruction on the corruption charge, and was granted leave to brief on the issue, and assigned (above-mentioned) new counsel against his expressed wishes. New counsel did everything in her power to sabotage his appeal, from not timely filing briefs, to lying to him and his family about said briefs being filed, and other various underhanded tactics.
(Petition, Doc. No. 1, at 5-6.)
Petitioner was indicted by the Montgomery County Grand Jury on one count of kidnapping and one count of corrupting another with drugs. After trial, he was convicted on the corrupting charge and of unlawful restraint a lesser-included offense of kidnapping under Ohio law. On July 10, 2002, he was sentenced to six years confinement. His conviction was affirmed on direct appeal, but the Court of Appeals thereafter reopened the direct appeal, concluding that he had received ineffective assistance of appellate counsel. He was assigned new counsel and permitted to argue the previously-omitted assignment of error, to wit, that he received ineffective assistance of trial counsel or alternatively did not receive a fair trial when his trial attorney did not seek an instruction on the lesser-included offense of contributing to the delinquency of a child under Ohio Revised Code § 2919.24. The Ohio Court of Appeals again affirmed the conviction on January 14, 2005. Petitioner took no appeal from that decision until instructed by this Court that he had the potential remedy, which he was required to exhaust, of delayed direct appeal to the Ohio Supreme Court. The Ohio Supreme Court declined to allow a delayed direct appeal.
The Ohio Court of Appeals found the following relevant facts:
On Easter Sunday, 2002, Misty Schmitz, who was almost 13 years old, left her home, lying to her mother about her destination. Although she had intended to go to a friend's home in Centerville, she missed the last bus for Centerville, and went north from downtown Dayton, instead. She met up with a male acquaintance, whom she had known about three weeks, at the Parkway Inn, where she remained, in various rooms, the next four days. Schmitz testified that she had smoked marijuana since she was 9 years old, but had not smoked crack cocaine before this incident. While at the Parkway Inn, Schmitz encountered defendant-appellant James E. Hancock and his son, and co-defendant, Jamael Hancock. Crack cocaine was being sold from the room occupied by the Hancocks. Crack cocaine was also being smoked in that room, by various persons. Typically, but not always, the persons in the room desiring to smoke crack cocaine would do so in the bathroom. Schmitz initially smoked crack cocaine with her male acquaintance, and had sexual intercourse with him.
Schmitz, and a woman who was also occupying the room for several days, Christina Bledsoe, testified that on numerous subsequent occasions James Hancock, whom they also knew as "Red," provided Schmitz with crack cocaine, putting it in the pipe and lighting it for her.
Schmitz testified that at one point she became dissatisfied and left the room. Schmitz testified that Hancock went out, picked her up, put her over his shoulder, and took her back to the room. Schmitz testified that Hancock then "smacked her," more than twice, and told her "I'm your master," and "you will do as I tell you."
Schmitz also testified concerning an earlier incident in which she went with Bledsoe to a flea market across the street from the Parkway Inn, and Hancock came over, took her by the wrist, and pulled her back to the hotel.
On April 4, 2002, the fourth day of Schmitz's presence at the Parkway Inn, Montgomery County sheriff's deputies received a tip that a minor female might have been abducted or assaulted there, and that crack cocaine usage might be involved. An initial dispatch to the hotel proved fruitless, because no particular room or rooms had been specified, and nothing out of the ordinary was observed. Shortly thereafter, however, the deputies received information concerning a particular room, and they returned to the hotel. Their initial attempts to gain entrance to the room were unsuccessful. Sounds from within the room persuaded the deputies that there was somebody inside, but no one was responding to the deputies. Eventually, a master key
the deputies to gain entry to obtained from the owner of the hotel permitted the room. Inside, they found Schmitz, Bledsoe, Brandon Woosley (Bledsoe's boyfriend), and James and Jamael Hancock. The Hancocks were arrested and charged, in the indictment with which this appeal is concerned, with Kidnapping. James Hancock, but not Jamael Hancock, was charged with Corrupting
Another with Drugs.
Following a jury trial, James Hancock was convicted of Corrupting Another with Drugs, and of the lesser-included offense of Unlawful Restraint. Jamael Hancock was acquitted on both charges. A judgment of conviction was entered against James Hancock, and he was sentenced to six years imprisonment for Corrupting Another with Drugs, and 60 days incarceration for Unlawful Restraint, to be served concurrently.State v. Hancock, 2003 Ohio App. LEXIS 1964 (Ohio App. 2nd Dist. April 25, 2003).
First Ground for Relief
In his First Ground for Relief, Petitioner argues he received ineffective assistance of trial counsel because his trial attorney did not request a jury instruction on the lesser-included offense of contributing to the delinquency of a minor.
Respondent asserts that this Ground for Relief is barred by Petitioner's failure to present it in a timely manner to the Ohio Supreme Court. The record demonstrates that the Ohio Court of Appeals rendered its decision on the reopened appeal on January 14, 2005 (Answer, Ex. 19). Under Ohio Supreme Court Rules of Practice, Mr. Hancock had forty-five days to take an appeal to that Court; his time to file thus expired on February 28, 2005. He did not actually attempt to appeal until this Court ordered him to do so on February 14, 2006 (Doc. No. 9). The Ohio Supreme Court denied leave to file a delayed appeal in a form entry filed March 29, 2006 (Attachment to Doc. No. 12).
Petitioner asserts that 28 U.S.C. § 2254 does not contain any requirements that matters be presented timely to the state courts. In this he is correct: the procedural default jurisprudence which requires such timely filing is all to be found in case law. The standard for evaluating a procedural default defense, found in Supreme Court law, is 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, 749, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991); see also Simpson v. Jones, 238 F. 3rd 399, 406 (6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (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); Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986); Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wainright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Wainright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a habeas claim is precluded by procedural default. Reynolds v. Berry, 146 F. 3d 345, 347-48 (6th Cir. 1998), citing Maupin v. Smith, 785 F. 2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261 F. 3d 594 (6th Cir. 2001).
First the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually enforced the state procedural sanction, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).
Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim.
Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under Sykes that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.Maupin, 785 F. 2d, at 138.
As noted above, Ohio does have a rule requiring that an appeal to the Ohio Supreme Court be taken within forty-five days of the time when the Court of Appeals files its decision; that rule was applicable to Petitioner's case.
Second, the rule was enforced against Petitioner when the Ohio Supreme Court denied leave to appeal. Where a state court is entirely silent as to its reasons for denying requested relief, as when the Ohio Supreme Court denies leave to file a delayed appeal by form entry, the federal courts assume that the state court would have enforced any applicable procedural bar. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004), citing Simpson v. Sparkman, 94 F.3d 199, 203 (6th Cir. 1996).
The Sixth Circuit has also decided that the 45-day limit is an adequate and independent state ground of decision. Bonilla, 370 F. 3d at 494.
Finally, Petitioner has not demonstrated cause and prejudice for the delay. Lack of counsel at that stage, lack of a trial transcript, unfamiliarity with the English language, and short time for legal research in prison do not establish cause to excuse this default. Bonilla, citing Murray v. Carrier, 477 U.S. 478, 494-95, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986).
The Court concludes that Petitioner is barred from relief on his First Ground for Relief by his procedural default in presenting that claim to the Ohio Supreme Court.
Alternatively, even if her were not barred, Petitioner's First Ground for Relief is without merit. As demonstrated by the Ohio Court of Appeals, under Ohio law, before a criminal defendant is entitled to an instruction on a lesser included offense, the evidence must be such that the jury would have been justified in finding against the State on some one element of the charged offense which would leave the defendant guilty of the lesser included offense. In this case, as Judge Young put it, because of the mechanism of the offense — furnishing the minor with crack cocaine — Petitioner was either guilty of corrupting her with drugs or of nothing at all. Petitioner's case seemed to revolve around the argument that the minor was already "corrupted" in the sense that she had prior extensive experience with controlled substances. But assuming the jury believed that, it still had to decide whether or not she was given crack cocaine by Petitioner on this occasion. If she was, then he was guilty as charged; if, he was guilty of nothing, not of the lesser included offense of contributing to the delinquency of a minor. In other words, a charge of a lesser included offense is not just a method by which to give the jury discretion; it must, under Ohio law, be supported by the evidence. Thus even if Petitioner had not procedurally defaulted on this claim, he would not be entitled to relief because it could not be ineffective assistance of trial counsel to fail to request an instruction which it would have been error to give.
Third Ground for Relief
In his Third Ground for Relief, Petitioner asserts he received ineffective assistance of appellate counsel on his reopened appeal.Respondent misconstrues this Ground for Relief, believing that Petitioner has asserted a right to effective assistance of counsel in the reopening process, i.e., in filing an application to reopen under Ohio App. R. 26(B). As Petitioner notes in his Reply, Petitioner represented himself in that process and "believes he did an adequate job, because the court . . . reopened his direct appeal." (Doc. No. 15 at 2.)
While Petitioner has stated a cognizable claim — ineffective assistance of appellate counsel — he has failed to demonstrate that counsel was ineffective. He claims that she did not timely file briefs, lied to him and his family, and used other "various underhanded tactics." (Petition, Doc. No. 1, at 6). However, he has not demonstrated how if at all he was prejudiced by this conduct. He received a decision on the merits of his assignment of error by the Court of Appeals and he does not attempt to show how counsel was ineffective in presenting that claim. The Court of Appeals determined that he was not entitled to the lesser-included instruction he believed he should have had, and he has not argued how his appellate counsel could somehow have made that result different.
Of course, the standard for ineffective assistance of counsel on appeal is the same as that for trial counsel, the standard under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): Petitioner must show some constitutional insufficiency in the representation and some prejudice flowing from that insufficiency. Here Petitioner has done neither. The Third Ground for Relief is therefore without merit.