Opinion
Case No. 3:18-CV-02794
02-04-2022
Marvin L. THOMAS, Plaintiff/Petitioner, v. Warden Norman ROBINSON, Defendant/Respondent.
Marvin L. Thomas, London, OH, Pro Se. Maura O'Neill Jaite, Office of the Attorney General - Criminal Justice Section, Columbus, OH, for Defendant/Respondent.
Marvin L. Thomas, London, OH, Pro Se.
Maura O'Neill Jaite, Office of the Attorney General - Criminal Justice Section, Columbus, OH, for Defendant/Respondent.
Order Denying Objections and Upholding Magistrate's Report and Recommendation
James G. Carr, Sr. United States District Judge
This is a state prisoner federal habeas corpus petition. Following referral under 28 U.S.C. § 2254, United States Magistrate Judge Carmen Henderson filed her Report & Recommendation. (Doc. 19). She recommends denial of the petitioner's claims. The petitioner has filed objections. (Doc. 22), and the respondent has filed a response thereto. (Doc. 23). On full de novo review, this matter is decisional.
For the following reasons, I overrule the petitioner's objections, adopt the Report & Recommendation as this court's Order, and dismiss the petition. I also decline to grant a Certificate of Appealability.
Background
Following indictment in Allen County, Ohio, on multiple drug offenses, the petitioner pled no contest to Counts I, IV, and V. Counts II and III were dismissed. (Doc. 6-2, pgID #1015-17). Thereafter, Judge Reed of the Allen County, Ohio, Court of Common Pleas sentenced the petitioner to 11 years in prison for Count I, 10 years in prison for Count IV, and 24 months in prison for Count V to be served consecutively for a total of 23 years. (Doc. 6-1, pgID #310-11).
The petitioner took a direct appeal, raising six assignments of error:
• Denial of Right to Effective Assistance of Counsel Free from an Actual Conflict of Interest;
• Trial Counsel had an Actual Conflict of Interest when he Represented Defendant in Violation of Sixth Amendment Right to Effective Assistance of Counsel;
• The Trial Court Erred in Overruling Defendant's Motion to Suppress (Detention and Search) and the Fruits of the Evidence;
• The Trial Court Erred in Overruling Defendant's Motion to Suppress (Pole Cameras) and its Fruits without a Warrant;
• The Trial Court Erred In Overruling Defendant's Motion to Suppress III (Pole Cameras) And Its Fruits Obtained From Said Evidence, Having Been Obtained Without A Warrant Supported By Probable Cause, Which Resulted in Unreasonable Searches and Seizures Under the Fourth Amendment; and
• Defendant was Deprived of Due Process and a Fair Trial when the State Failed to Specify in the Indictment as Predicate Offenses for Engaging in a Pattern of Corrupt Activity.
The Third District Court of Appeals affirmed the conviction. State v. Thomas , 2017-Ohio-4356, 91 N.E.3d 1273, 1293 (3rd Dist. 2017).
The petitioner then sought review in the Ohio Supreme Court, asserting one assignment of error: "Counsel was ineffective in failing to properly challenge the falsities and reckless disregard for the truth in the affidavit. U.S. Constitution 5th 6th [8]th and 14th Amendments." State v. Thomas , 151 Ohio St.3d 1456, 87 N.E.3d 223 (2017). On February 14, 2018, the Ohio Supreme Court declined to accept jurisdiction of Thomas's appeal. State v. Thomas , 151 Ohio St.3d 1527, 91 N.E.3d 758 (2018).
Thereafter, the petitioner filed the instant petition. Following extensive briefing by both parties, Magistrate Judge Henderson filed her Report & Recommendation. In response, the petitioner has filed his objections (Doc. 22), in which he asserts he was denied his Sixth Amendment right to effective counsel. He specifically claims he was adversely affected by counsel's simultaneous representation of his co-defendant whose interests conflicted with his.
Second, petitioner objects on the basis of inadequate indictment. He states that to date, the State has not given him sufficient notice of the predicate offense to enable him to formulate a defense.
The third objection pertains to ineffective assistance of appellate counsel. Petitioner argues his counsel failed to effectively address the police officer's true and complete details of the search warrant by failing to move for a Franks hearing.
Finally, the petitioner objects on the grounds of an illegal Fourth Amendment Search and Seizure violation.
Discussion
1. Ground One – Denial of Right to Conflict-Free Counsel
Following indictment of the petitioner and his co-defendant, Travis Williams, Attorney Kenneth Rexford filed notices of appearance on behalf of both of them. The trial judge sua sponte raised the issue of possible conflict. Following a hearing, he determined that a conflict existed, and declined to permit Mr. Rexford to continue to represent co-defendant Travis Williams. Attorney Rexford continued to represent the petitioner.
The Third District Court of Appeals found that Mr. Rexford's continued representation did not violate petitioner's right to conflict-free representation. Thomas , supra , 91 N.E.3d at 1293. Magistrate Judge Henderson agreed.
I do as well.
Petitioner claims that his attorney's prior representation of his co-defendant so tainted his right to conflict-free counsel as to violate the Sixth Amendment and the Ohio Constitution.
Claims arising under state law are not cognizable under a federal habeas corpus proceeding. Estelle v. McGuire , 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). This note applies to petitioner's other state law contentions.
To show a violation of the Sixth Amendment's right to conflict-free counsel, the petitioner must establish that the conflict actually affected his attorney's representation of him. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
As the Third District found, the petitioner failed to allege that the asserted conflict had any effect on his representation. Indeed, his appellate attorney argued that was so. Thomas , supra , 91 N.E.3d at 1279. Here, petitioner simply claims, in a conclusory fashion, that the alleged conflicts adversely affected his interests. As Magistrate Judge Henderson pointed out, under applicable law, that's not enough, and the appellate court properly applied federal law.
This opinion is correct. Ground one is without merit. And thus subject to denial.
2. Ground Two – Insufficiency of the Indictment
Petitioner claims that the indictment failed to give him constitutionally requisite notice of the offense charged in Count IV because it did not specify the predicate offenses. In response to this contention in the trial court, the prosecution provided a bill of particulars that remedied this defect to the extent it may have existed. The Third District so found. Thomas , supra , 91 N.E.3d at 1291.
The Magistrate Judge found nothing clearly erroneous with this decision, and neither do I. That was the function of the bill, and the bill in this case fulfilled that function.
3. Ground Three – Ineffective Assistance of Appellate Counsel
Petitioner claims that his appellate attorney failed to provide constitutionally adequate representation when he failed to appeal the denial of his trial counsel's motion under Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
To meet his burden under this challenge, petitioner must show that: 1) counsel's performance was deficient or unreasonable; and 2) the deficiency prejudiced him – i.e. adversely affected the outcome in the trial court. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
To prevail on a Franks challenge, a defendant must show that 1) the affiant knowingly, intentionally, or with reckless disregard for the truth, made false statements; and 2) such misrepresentation was material to the determination that probable cause existed to issue the warrant. United States v. Brown , 732 F.3d 569, 575 (6th Cir. 2013).
Petitioner asserts four defects in the affidavit that, either singly or in combination, were so false or misleading as to violate the Franks standard: 1) failure to disclose use of a pole camera; 2) failure to obtain a warrant for such use; 3) there were affirmatively false or misleading statements in the affidavit; and 4) without these contents the affidavit failed to show probable cause.
The Magistrate Judge properly rejected these contentions. First, the record showed that the video surveillance did not intrude on areas not exposed to public view. Second, thus, no warrant was required. Third, the petitioner failed to point to specific statements or omissions that were deliberately false or recklessly indifferent to the truth. Thus, there was no right to a Franks hearing and no ineffective assistance of trial counsel.
That being so, as Magistrate Judge Henderson concluded, appellate counsel was not ineffective for failing to raise a meritorious issue on appeal. This was a fully warranted and justified conclusion. See United States v. Houston , 813 F.3d 282, 290 (6th Cir. 2016) ("[L]ong-term warrantless surveillance via a stationary pole camera does not violate a defendant's Fourth Amendment rights when it was possible for any member of the public to have observed the defendant's activities during the surveillance period.").
Petitioner raises three other claims of misrepresentation or omission that he argues entitle him to a Franks hearing, namely, that the affidavit: 1) included evidence from a traffic stop that the court later held was unconstitutional; 2) was thus tainted by that false information; 3) included reference to a 1999 drug conviction, though the date of the conviction actually was 1998; and 4) failed to show an informant's credibility.
The Third District found that none of these circumstances merited a Franks hearing. This decision was not clearly erroneous, nor did it reflect a misapplication of controlling law.
First, the trial court found, and appropriately so, that the traffic stop-related information was not material to the issuing judge's finding of probable cause. Second, there is no reason to believe that if the actual date of the conviction had been in the affidavit that the judge would have declined to issue the warrant. Finally, the warrant would have issued had it not included any information from the informant.
4. Ground Four – Fourth Amendment Violations
Petitioner further contends that the trial court did not provide him with a full and fair suppression hearing because it misinterpreted the law regarding evidence obtained from pole cameras.
"[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced in his trial." Stone v. Powell , 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
In determining whether a Fourth Amendment claim was fully and fairly litigated, I must consider: 1) "whether the state procedural mechanism, in the abstract, presents the opportunity to raise a fourth amendment claim" and 2) "whether presentation of the claim was in fact frustrated because of a failure of that mechanism." Riley v. Gray , 674 F.2d 522, 526 (6th Cir. 1982).
Petitioner does not address either of these considerations, arguing instead that the officers needed a warrant to examine the pole camera evidence.
As noted above, warrantless surveillance with a pole camera does not violate the Fourth Amendment where any member of the public could have observed the behavior of the person being recorded. See Houston , supra , 813 F.3d at 290. The trial court found that the pole camera in this case did not record anything that the public could not see.
Further, I agree with the Magistrate Judge that there was a full and fair litigation of each of petitioner's motions to suppress. He filed five motions, the trial court held four evidentiary hearings, and it granted one of his motions. Petitioner raised his objections to the hearings on direct appeal and to the Supreme Court of Ohio.
I therefore reject petitioner's final objection to the Report & Recommendation.
Conclusion
The Magistrate Judge properly found that there was no merit to the petition. That being so, I overrule the petitioner's objections and dismiss the petition with prejudice.
It is, accordingly, hereby
ORDERED THAT:
1. The petitioner's objections to the Magistrate Judge's Report & Recommendation (Doc. 22) be, and the same hereby are overruled;
2. The Magistrate Judge's Report & Recommendation (Doc. 19) be, and the same hereby is adopted as the Order of this Court; and
3. The petition be, and the same hereby is dismissed, with prejudice.
I decline to issue a Certificate of Appealability, as jurists of reason could not rationally disagree with the Order's result or rationale.
So ordered.