Taylor v. Tambi

Full title: MICHAEL E. TAYLOR, Petitioner, v. SAMUEL A. TAMBI, Warden, Respondent

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

Date published: May 12, 2009

CASE NO. 2:08-CV-245 (S.D. Ohio May. 12, 2009)

Opinion

CASE NO. 2:08-CV-245.

May 12, 2009

ORDER and REPORT AND RECOMMENDATION

NORAH KING, Magistrate Judge

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the petition, respondent's return of writ, petitioner's traverse, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's request for an evidentiary hearing is DENIED.

FACTS and PROCEDURAL HISTORY

The Ohio Twelfth District Court of Appeals summarized the facts and procedural history of this case as follows:

The events that lead up to the indictment involved appellant's molestation of four juvenile victims, beginning in 1993 and spanning nearly a decade. A successful businessman, school board member, and retired police officer, appellant was a prestigious and respected member of his community. Throughout the years, appellant befriended the adolescent sons of local families, offering them gifts, money, and jobs at his construction sites. Appellant's sexually-oriented conduct often began with explicit comments and jokes with his victims, and culminated in his molestation of them. This abuse included fondling the genitalia of his victims and performing fellatio on them. The victims were typically around 13 or 14 years of age when the abuse began, and around 16 or 17 when the abuse ended. Although the indictment focused on only four victims, appellant admitted to molesting a number of young boys over the years. While the victims insisted that they did not voluntarily participate in these encounters, appellant alleged that these incidents were always consensual and further stated that the victims initiated contact with him.

On December 12, 2003, appellant was indicted on 21 counts alleging rape, attempted rape, and gross sexual imposition. Following a plea agreement, the state amended three of the counts from rape, a felony of the first degree, to sexual battery, a felony of the third degree. The state then dismissed the remaining counts, as well as the violent sexual offender specifications contained in the indictment. The trial court accepted appellant's guilty plea to three counts of sexual battery on November 5, 2004.

On December 16, 2004, the trial court held a combined sexual predator and sentencing hearing. At that hearing, the court considered information contained in the screening instrument, the presentence investigation report, and in the forensic evaluation submitted by the state's expert. The court also considered statements made by appellant, the victims, friends and relatives of the victims, as well as testimony by the investigating police officer and appellant's psychologist. After considering this evidence, the court classified appellant a sexual predator. The court then heard further statements from two of the three victims and their relatives, after which the court imposed a three-year sentence on each count, to run consecutively, for a total prison term of nine years. Appellant timely appealed, raising four assignments of error[.]

***

Assignment of Error No. 1:

THE TRIAL COURT FAILED TO MAKE THE REQUIRED FINDINGS NECESSARY AND THERE IS NO EVIDENCE TO SUPPORT A FINDING THAT CONSECUTIVE SENTENCES WERE NECESSARY PURSUANT TO § 2929.14(E)(4) OF THE REVISED CODE. THEREFORE, SENTENCING THE DEFENDANT TO THREE CONSECUTIVE SENTENCES IS CONTRARY TO LAW.

***

Assignment of Error No. 2:

THE TRIAL COURT FAILED TO MAKE THE REQUIRED FINDINGS TO JUSTIFY IMPOSING MORE THAN A MINIMUM SENTENCE ON ANY COUNT PURSUANT TO § 2929.14(B) OF THE REVISED CODE, AND THERE WAS NO EVIDENCE TO ESTABLISH THAT SUCH A SENTENCE WAS NECESSARY. THEREFORE, THE SENTENCES ON EACH COUNT WERE CONTRARY TO LAW.

***

Assignment of Error No. 3:

THE TRIAL COURT'S IMPOSITION OF MORE THAN THE MINIMUM SENTENCE ON EACH CHARGE VIOLATED DEFENDANT'S SIXTH AMENDMENT CONSTITUTIONAL RIGHTS AS DEFINED BY THE UNITED STATES SUPREME COURT IN APPRENDI V. NEW JERSEY; BLAKELY V. WASHINGTON AND UNITED STATES V. BOOKER.

***

Assignment of Error No. 4:

THE TRIAL COURT'S FINDING THE DEFENDANT TO BE A SEXUAL PREDATOR IS NOT SUPPORTED BY THE (sic) CLEAR AND CONVINCING EVIDENCE, AND IS THEREFORE CONTRARY TO LAW.

State v. Taylor, 2005 WL 3276168 (Ohio App. 12^th Dist. December 5, 2005). On December 5, 2005, the appellate court

affirmed both the sentencing decision and appellant's classification as a sexual predator. State v. Taylor, Fayette App. No. CA2005-01-004, 2005-Ohio-6426. Appellant appealed to the Ohio Supreme Court, which vacated appellant's sentence and remanded the case for resentencing pursuant to the court's decision in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856. In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 847 N.E.2d 1174, 2006-Ohio-2109.

The trial court held a resentencing hearing in August 2006 and again imposed three consecutive three-year prison sentences for appellant's sexual battery convictions.

State v. Taylor, 2007 WL 1662049 (Ohio App. 12^th Dist. June 11, 2007). Petitioner again appealed and raised the following sole assignment of error:

THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES ON THE THREE COUNTS OF SEXUAL BATTERY AS THE RULING IN STATE V. FOSTER, [CITATION OMITTED] DECLARING 2929.11(E)(4) AND 2929.41(A) UNCONSTITUTIONAL IN EXCISING THEM FROM THE STATUTORY STRUCTURE REMOVES THE COURT'S AUTHORITY UNDER CIRCUMSTANCES SUCH AS THIS TO IMPOSE CONSECUTIVE SENTENCES. SUCH IMPOSITION THEREFORE DEPRIVES THE DEFENDANT OF EQUAL PROTECTION[,] DUE PROCESS AND OTHER CONSTITUTIONAL RIGHTS PURSUANT TO THE FEDERAL AND STATE CONSTITUTIONS.

See id. On June 11, 2007, the appellate court affirmed the trial court's judgment. Id. On October 31, 2007, the Ohio Supreme Court denied petitioner's subsequent appeal. State v. Taylor, 115 Ohio St.3d 1474 (2007).

On March 13, 2008, petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the respondent in violation of the Constitution of the United States on the ground that the trial court lacked authority under Ohio law, after State v. Foster, 109 Ohio St.3d 1 (2006), to impose consecutive sentences. It is the position of the respondent that this claim is without merit.

Petitioner specifically contends that he was denied due process when the trial court re-imposed consecutive terms of incarceration at his re-sentencing after the Ohio Supreme Court's decision in Foster, supra, because the trial court lacked authority under Ohio law after Foster to impose consecutive terms of incarceration. See Petition. The state appellate court rejected this claim as follows:

Appellant's argument on appeal challenges the authority of a trial court to impose consecutive sentences after the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856. In Foster, the court found certain provisions of Ohio's sentencing statutes were unconstitutional and as a remedy, excised those provisions from the statute. Foster at ¶ 97. Prior to the Foster decision, with certain limited exceptions, prison terms were to run concurrently, unless certain findings were made by the trial court. See Foster at ¶ 66. Two sections of the Revised Code, R.C. 2929.41 and R.C. 2929.14(E)(4), that provided for concurrent prison terms unless certain judicial findings were made, were among the provisions that were severed by the court in Foster. Appellant now contends that without a specific statutory provision authorizing the imposition of consecutive prison terms, the trial court in this case was without jurisdiction to impose consecutive sentences. We find appellant's argument without merit.

The authority to impose consecutive sentences has long been recognized as an inherent power of trial courts in Ohio and other states. See Henderson v. James (1895), 52 Ohio St. 242, 254-255, 39 N.E. 805. In Henderson, the court found that "[a]s we have no statute authorizing cumulative sentences for crime, it would seem at first blush that such sentences would not be permitted in this state; but this court, with the courts of most of the other states, as well as England, has sustained cumulative sentences without the aid of a statute. * * * The great weight of authority is in favor of cumulative sentences and they should be upheld on principle." Id.

In 1963, the Ohio Supreme Court examined the issue of whether sentences for escape should run concurrently or consecutively when the court's judgment entry does not specify how the sentence is to be served. Stewart v. Maxwell, (1963), 174 Ohio St. 180, 187 N.E.2d 888. The court found that "[i]n the absence of statute, it is a matter solely within the discretion of the sentencing court as to whether the sentences shall run consecutively or concurrently." Id. at 181, 187 N.E.2d 888; see also Stratton v. Maxwell (1963), 175 Ohio St. 65, 67, 191 N.E.2d 549.^FN1 Therefore, as Foster severed the provisions of Ohio's sentencing statute addressing the imposition of consecutive sentences, we must follow the long-recognized principle that in the absence of a statute, the imposition of consecutive sentences is a matter within the discretion of the trial court.

FN1. In fact, the court went a step further in discussing the purpose for imposing consecutive sentences by stating, "[i]nasmuch as making sentences for different crimes run concurrently is in the nature of a reward to the convict, relieving him of paying a part of the penalty for his crimes, it follows that a positive act is required on the part of the sentencing court to cause sentences to run concurrently; and in the absence of such action, if the entry is silent as to how the sentences shall run, it is presumed such sentences will run consecutively." Id. See, also, Stratton v. Maxwell (1963), 175 Ohio St. 65, 67, 191 N.E.2d 549 ("a provision that sentences shall run concurrently is actually in the nature of a reward").

Appellant asserts that "Section 2901.01 of the Revised Code makes it clear that there is no such concept as common law applicable to the criminal law structure and thus all proceedings and crimes must be conducted consistent with the requirements of the Ohio Revised Code." However, appellant has not cited any specific authority for this broad proposition, and we find nothing in the Revised Code's sentencing scheme that prohibits or limits the common law principle related to the imposition of consecutive sentences. The Revised Code only specifically abrogates common law offenses, as it states "no conduct constitutes a criminal offense against the state unless it is defined as an offense in the Revised Code." R.C. 2901.03. However, nothing in the Revised Code prohibits or limits a court from imposing consecutive sentences as authorized by common law principles.

Moreover, the Ohio Supreme Court specifically stated in Foster that with the severance of R.C. 2929.41 and R.C. 2929.14(E)(4), courts now have full discretion to order consecutive sentences.^FN2 Foster at ¶ 100, ¶ 105, 845 N.E.2d 470; see, also, State v. Mathis, 109 Ohio St.3d 54, 846 N.E.2d 1, 2006-Ohio-855, ¶ 37-38. The court reiterated this principle in State v. Saxon, 109 Ohio St.3d 176, 846 N.E.2d 824, 2006-Ohio-1245, ¶ 9, when it stated "[o]nly after the judge has imposed a separate prison term for each offense may the judge then consider in his discretion whether the offender should serve those terms concurrently or consecutively."

FN2. With the exception of certain enumerated circumstances in which the court lacks discretion to determine whether sentences are served consecutively or concurrently. See Foster at ¶ 66, citing R.C. 2929.14(E)(1).

A court is bound by and must follow the pertinent decisions of a reviewing court when ruling on issues before it; Battig v. Forshey (1982), 7 Ohio App.3d 72, 454 N.E.2d 168; Thacker v. Bd. of Trustees of Ohio State Univ. (1971), 31 Ohio App.2d 17, 285 N.E.2d 380. Accordingly, this court is bound by and must follow the decisions of the Ohio Supreme Court. Durbin v. Schoeber (Jan. 27, 1992), Butler CA91-03-048; World Diamond Inc. v. Hyatt Corp. (1997), 121 Ohio App.3d 297, 699 N.E.2d 980.

In paragraph seven of the syllabus in Foster, the Ohio Supreme Court held, "[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences." Foster, 109 Ohio St.3d at paragraph 7 of the syllabus. Therefore, this court and the lower trial courts are bound to follow this directive. See State v. Pruitt, Franklin App. No. 06AP-1184, 2007-Ohio-2331.

Accordingly, we find no merit to appellant's argument that the trial court did not have the authority to impose consecutive sentences after the severance of portions of the sentencing statute in Foster. We further note that the Tenth District recently reached the same conclusion when examining this issue. State v. Worrell, Franklin App. No. 06Ap-706, 2007-Ohio-2216. Appellant's sole assignment of error is overruled.

State v. Taylor, supra, 2007 WL 1662049. The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. § 2254(e) provides:

(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

Id. Further, the decision of the Ohio Court of Appeals is binding on this Court unless it is contrary to clearly established federal law or was based on an unreasonable determination of the facts of record. 28 U.S.C. § 2254(d) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted 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). Petitioner does not meet this standard.

Petitioner's claim involves the alleged violation of state law. Such a claim is not appropriate for federal habeas corpus relief. Petitioner has referred to, and this Court is aware of, no decision of the United States Supreme Court indicating that the trial court's imposition of consecutive terms is constitutionally prohibited. See Petition; Traverse.

A federal court may review a state prisoner's habeas petition only on the ground that the challenged confinement is in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. 2254(a). A federal court may not issue a writ of habeas corpus "on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Sowders, 848 F.2d 735, 738 (6^th Cir. 1988). A federal habeas court does not function as an additional state appellate court reviewing state courts' decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6^th Cir. 1988). "`[F]ederal courts must defer to a state court's interpretation of its own rules of evidence and procedure'" in considering a habeas petition. Id. (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11^th Cir. 1985)). Only where the error results in the denial of fundamental fairness will habeas relief be granted. Cooper v. Sowders, 837 F.2d 284, 286 (6^th Cir. 1988).

The Magistrate Judge therefore RECOMMENDS that this action be DISMISSED.

If any party objects to this Report and Recommendation, that party may, within ten (10) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).