Opinion
Case No. 3:07-cv-137.
May 26, 2008
DECISION AND ORDER
This habeas corpus case is before the Court for decision on the merits. The parties have unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) and the case has been referred on that basis (Doc. No. 12).
Petitioner pleads the following Grounds for Relief:
Ground One: Appellant was denied due process and a fair trial through prosecutorial misconduct.
Supporting Facts: Prosecutor substituted arguments to jurors' emotions; misstated evidence and arguments outside of the record; leading questions; improperly characterizing the alleged victim as the "victim"; eliciting of improper evidence.
Ground Two: Appellant was deprived of due process and a fair trial through the court's faulty jury charge.
Supporting Facts: The court omitted the date of the offense.
Ground Three: Appellant was deprived [of] his constitutional right to effective assistance of counsel.
Supporting Facts: Counsel failed to object to prosecutor's arguments, misstatements of evidence, repeated mischaracterization of the alleged victim, admission of improper evidence, and to a faulty jury charge. Counsel failed to request a severance. Counsel failed to object to admissable [sic] evidence with an impermissibly flawed chain of custody.
Ground Four: Appellant was denied due process and a fair trial through the admission of inadmissible evidence.
Supporting Facts: Evidence should not have been admitted on weight because of the extent of the flaws in the chain of evidence.
Ground Five: Appellant was prejudiced and denied due process and a fair trial through the court's erroneous evidentiary rulings.
Supporting Facts: The court permitted the State to impermissibly shape the alleged's victim's testimony through leading questions, over objections.
Ground Six: Appellant's convictions were against the sufficiency and/or manifest weight of the evidence.
Supporting Facts: The forcible element of rape was not established during trial.
Ground Seven: The trial court erred in imposing a consecutive sentence through findings not made by a jury beyond a reasonable doubt.
Supporting Facts: Appellant had the right to have a jury determine the sentence enhancement factors beyond the statutory maximum.
Ground Eight: The cumulative effect of the errors occurring at trial deprived appellant of a fair trial.
Supporting Facts: The cumulative effect of the errors occurring deprived appellant of his constitutional right to a fair trial.
Ground Nine: Appellant was denied his constitutional due process rights by being convicted of carbon-copy indictments.
Supporting Facts: The carbon copy indictments prevented Appellant from being able to defend one charge from another charge.
(Petition, Doc. No. 2, at 6, et seq.)
Procedural History
Petitioner was indicted by the Montgomery County Grand Jury on eleven counts of forcible rape of a child under the age of thirteen as defined in Ohio Revised Code § 2907.02(A)(1)(b); twelve counts of forcible rape as defined in Ohio Revised Code § 2907.02(A)(2) and one count of possession of crack cocaine in an amount equaling or exceeding one gram but less than five grams as defined in Ohio Revised Code § 2925.11(A). After trial, a jury found him guilty on all counts and he was sentenced to life imprisonment plus twenty years.
Petitioner took a direct appeal to the Montgomery County Court of Appeals raising the following assignments of error:
1. Appellant was denied due process and a fair trial through prosecutorial misconduct.
2. Appellant was deprived of due process and a fair trial through the Court's faulty jury charge.
3. Appellant was deprived of his constitutional right to effective assistance of counsel.
4. Appellant was denied due process and a fair trial through the admission of inadmissible evidence.
5. Appellant was prejudiced and denied a fair trial through the court's erroneous evidentiary hearing.
6. Appellant's convictions were against the sufficiency/and or manifest weight of the evidence.
7. The trial court erred in imposing a consecutive sentence through findings not made by a jury beyond a reasonable doubt.
8. The cumulative effect of the errors occurring at trial deprived appellant of a fair trial.
(Appellant's Brief, Exhibit 6 to Return of Writ, Doc. No. 16).
The Court of Appeals affirmed the conviction and sentence. State v. Wilson, Case No. 20910 (Ohio App. 2nd Dist. Dec. 16, 2005) (unpublished). The Court of Appeals found the following facts:
The victim in this matter, P.M., is the daughter of Wilson's former girlfriend, Diedra. Wilson, Diedra and P.M. resided together from the time P.M. was a year old, and Wilson and Diedra had three sons together. P.M. called Wilson "Daddy." When P.M. was 11 or 12 years old, Wilson began entering her bedroom at night and touching her inappropriately, ultimately progressing to penetrating her vagina with his penis. The abuse continued until P.M. was 16. Wilson once took P.M. to the home of another girlfriend of his and raped her there, and on that day P.M. told her mother of the abuse. Diedra took P.M. to the police station.
Officers responded to P.M.'s residence in Dayton, and arrested Wilson. He initially seemed nervous and refused to remove his hand from the pocket of his sweatpants. Officers found a plastic baggie in his pocket that contained crack cocaine.
Another officer took P.M. to Children's Medical Center, where the attending physician, Dr. Russell Hackett, conducted a full physical exam, including a pelvic exam, during which he observed a small cut along the posterior vaginal wall. At trial he testified that he believed the presence of the cut was consistent with P.M.'s statement that Wilson and she had sexual intercourse. Nurse Wendy Swank assisted Dr. Hackett in completing a rape kit. At a follow-up examination, a second doctor observed a "defect in the hymen, * * * an interruption in the normal * * * continuity of the tissue * * * that extended all the way to the base * * * of the vaginal wall and where the hymen meets the vaginal wall." The injury appeared to have healed and was consistent with penetration of either a penis or fingers into the vaginal opening.
The Miami Valley Crime Lab tested the clothing that Wilson and P.M. wore on the last date they had intercourse, and both Wilson's shorts and P.M.'s underwear revealed a mixture of DNA from both Wilson and P.M. In a police interview with Detective Phillip Olinger, Wilson admitted inserting his fingers and penis into P.M.'s vagina. He stated that he did so to teach her about sex and to keep her from becoming promiscuous.Id. at 2-3. Petitioner did not file a timely appeal to the Ohio Supreme Court, but eventually sought, on September 1, 2006, sought to file a delayed appeal. The Ohio Supreme Court denied leave to appeal. (Exhibit 11 to Return of Writ).
On May 31, 2006, Petitioner filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 in the Montgomery County Common Pleas Court. The petition was denied on July 31, 2006. (Exhibit 18 to Return of Writ). The Second District Court of Appeals affirmed the dismissal on September 7, 2007. (Exhibit 22). Petitioner filed the instant federal habeas corpus petition on April 9, 2007, while the matter was still pending in the state courts (Doc. No. 2). The Court stayed these proceedings pending finality in the state courts (Doc. No. 4), dissolving the stay when state proceedings were complete (Doc. No. 13). Petitioner's Motion for extension of the stay to permit him to file a second delayed appeal to the Ohio Supreme Court was denied on the grounds that Ohio law does not recognize that as an available remedy (Doc. Nos. 17, 18). Petitioner filed his Traverse on May 12, 2008.
Analysis: Procedural Default
Respondent asserts that all of Petitioner's claims for relief are barred by Petitioner's procedural defaults in presenting them to the state courts.
The standard for evaluating a procedural default defense 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); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and prejudice standard of Wainwright v. Sykes, 433 U. S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Murray v. Carrier, 477 U.S. 478, 485, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986); Mapes v. Coyle, 171 F. 3rd 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985). Failure to present an issue to the state supreme court on discretionary review constitutes procedural default. O'Sullivan v. Boerckel, 526 U.S. 838, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999).
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.
[The Sixth Circuit Court of Appeals] "applies a four-part test to determine whether a claim has been procedurally defaulted: (1) the court must determine that there is a state procedural rule with which the petitioner failed to comply; (2) the court must determine whether the state courts actually enforced the state procedural sanction; (3) the state procedural rule must have been an adequate and independent state procedural ground upon which the state could rely to foreclose review of a federal constitutional claim; and (4) if the court has determined 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 that there was cause for his failure to follow the rule and that actual prejudice resulted from the alleged constitutional error.Hartman v. Bagley, 492 F.3d 347, 357 (6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
With respect to his first eight Grounds for Relief, the State asserts Petitioner procedurally defaulted in presenting them to the state courts when he failed to timely appeal to the Ohio Supreme Court on direct appeal. In applying the Maupin analysis, the Court finds that Ohio has a rule requiring that a notice of appeal from a Court of Appeals' decision must be filed within forty-five days of the appellate decision. In this case, that means the notice of appeal was due to be filed by January 30, 2006, forty-five days after the appellate decision on December 16, 2005. When he filed his motion for delayed appeal, Petitioner admitted that he had not attempted to mail the notice of appeal until January 31, 2006. When he filed the motion for delayed appeal in September, 2006, he blamed limited library access and lack of legal knowledge. These are not adequate excuses under federal law. Bonilla v. Hurley, 370 F.3d 494 (6th Cir. 2004) citing Murray v. Carrier, 477 U.S. 478, 494-95, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). Bonilla also holds that the 45-day limit on appealing to the Ohio Supreme Court is an adequate and independent state ground for decision and that an unexplained denial of leave to file a delayed appeal is to be interpreted as an enforcement of that rule.
In his Traverse, Petitioner does not offer any purported cause and prejudice to excuse his delay in filing in the Ohio Supreme Court. Instead, he repeats his grounds for seeking a second stay of these proceedings, to wit, so that he can file a second attempted delayed direct appeal (Traverse, Doc. No. 19). For the reasons already given in denying the prior Motion for that relief, to wit, that Ohio does not allow a second such attempt, the Court again denies that request and finds Grounds for Relief One through Eight are procedurally defaulted for failure to file a timely direct appeal to the Ohio Supreme Court.
In his Traverse, Petitioner argues that any procedural defaults he may have committed in presenting his Seventh Ground for Relief to the state courts are irrelevant because the violation complained of in that Ground for Relief — imposing a consecutive sentence through findings not made by a jury beyond a reasonable doubt — deprived the Common Pleas Court of jurisdiction and "subject matter jurisdiction cannot be deemed waived or forfeited." (Traverse, Doc. No. 19, at 6). Petitioner is relying on State v. Foster, 109 Ohio St. 3d 1, 845 N.E. 2d 470 (2006), in which the Ohio Supreme Court held that Ohio Senate Bill 2, adopting Ohio's sentencing scheme which required trial judges to find certain enhancing facts before imposing more than a minimum prison term, violated the United States Constitution as interpreted in Blakely v. Washington, 542 U.S. 296 (2004). However, the Ohio Common Pleas courts are courts of general jurisdiction and in particular have jurisdiction to sentence for felonies. So far as this Court is aware, neither the Ohio Supreme Court nor any other Ohio court has ever held that a Blakely violation deprives the Common Pleas court of subject matter jurisdiction. In State v. Colon, ___ Ohio St. 3d ___, 885 N.E. 2d 917 (2008), the Ohio Supreme Court held that omission of an essential element from an indictment is a structural error not subject to harmless error analysis, but never suggested that this deprived the Common Pleas Court of jurisdiction.
In his Ninth Ground for Relief, Petitioner asserts that he was denied his constitutional rights by being "convicted of carbon copy indictments." He admits this claim was never presented to the state courts and blames ineffective assistance of appellate counsel for his failure to do so. This Court does not understand what Petitioner means by "carbon copy indictments" or how those would violate the United States Constitution, so it may be that this Ground for Relief does not state a claim for federal habeas corpus relief. Assuming it does state a constitutional violation, it is procedurally defaulted because it has never been presented to the state courts. Ineffective assistance of appellate counsel cannot act as excusing cause for failure to present a claim in the state courts until the ineffective assistance of appellate counsel claim has itself been presented to and adjudicated by the state courts. Edwards v. Carpenter, 529 U.S. 446, 120 S. Ct. 1587, 146 L. Ed. 2d 518 (2000). It is now too late for Petitioner to present that claim to the state courts because Ohio has a time limit on presenting those claims of 90 days after the appellate decision, so Petitioner's time to present an ineffective assistance of appellate counsel expired March 21, 2006. It is very unlikely the Second District Court of Appeals would excuse an additional two year delay in presenting such a claim. See State v. Reddick, 72 Ohio St. 3d 88, 647 N.E. 2d 784 (1995).
Conclusion
All Grounds for Relief pled in the Petition herein were procedurally defaulted in the state courts. Accordingly, the Petition will be dismissed with prejudice and the Clerk shall enter judgment to that effect.