Abshear v. Moore, No. 3:05-CV-258.
| Decision Date | 03 March 2008 |
| Docket Number | No. 3:05-CV-258. |
| Citation | 546 F.Supp.2d 530 |
| Parties | Keith ABSHEAR, Petitioner, v. Ernie MOORE, Warden, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
Andrew P. Avellano, Andrew P. Avellano, LLC, Columbus, OH, for Petitioner.
Steven Harry Eckstein, Thelma Thomas Price, Ohio Attorney General's Office, Columbus, OH, for Respondent.
ENTRY AND ORDER OVERRULING KEITH ABSHEAR'S OBJECTIONS (Doc. # 17) TO CHIEF MAGISTRATE JUDGE MICHAEL R. MERZ'S REPORT AND RECOMMENDATIONS (Doc. # 15); OVERRULING KEITH ABSHEAR'S OBJECTIONS (Doc. # 26) TO CHIEF MAGISTRATE JUDGE MICHAEL R. MERZ'S SUPPLEMENTAL REPORT AND RECOMMENDATIONS (Doc. # 23); ADOPTING CHIEF MAGISTRATE JUDGE MERZ'S REPORT AND RECOMMENDATIONS AND SUPPLEMENTAL REPORT AND RECOMMENDATIONS IN THEIR ENTIRETY AND TERMINATING THIS CASE
This matter is before the Court pursuant to Petitioner Keith Abshear's ("Abshear's") Objections to the Report and Recommendations and to the Supplemental Report and Recommendations of Chief Magistrate Judge Michael R. Merz. The Report and Recommendations was filed on December 26, 2006, and Abshear's Objections thereto were filed on February 15, 2007. The Supplemental Report and Recommendations was filed on August 28, 2007, and Abshear's Objections thereto were filed on November 16, 2007. Both the Report and Recommendations and the Supplemental Report and Recommendations address Abshear's Petition for a Writ of Habeas Corpus.
The Report and Recommendations finds that Abshear procedurally defaulted in presenting each of his Grounds for Relief to the state courts, those defaults were held against him by the state courts, and he is unable to excuse the defaults. (Doc. # 15.) Abshear objected to the Report and Recommendations (doc. # 17) and the Warden responded (doc. # 18). Abshear's objections to the Report and Recommendations were then argued orally on March 26, 2007, at Abshear's request.
The Chief Magistrate Judge then issued the Supplemental Report and Recommendations (doc. # 23) to which Abshear objected (doc. # 24). The Warden did not file objections to the Supplemental Report and Recommendations and did not file a response to Abshear's Objections. The Supplemental Report and Recommendations addresses each of Abshear's objections to the Report and Recommendations and reaches the same conclusion as the Report and Recommendations regarding procedural default.
As required by 28 U.S.C. § 636(b) and Federal Rules of Civil Procedure Rule 72(b), the District Judge has made a de novo review of the record in this case. Upon said review, the Court finds that Abshear's objections to the Chief Magistrate Judge's Report and Recommendations and Abshear's objections to the Chief Magistrate Judge's Supplemental Report and Recommendations are not well-taken, and they are hereby OVERRULED. The Chief Magistrate Judge's Report and Recommendations and Supplemental Report and Recommendations are ADOPTED in their entirety. Abshear's Petition for a Writ of Habeas Corpus is DISMISSED WITH PREJUDICE as barred by procedural default.
A decision on a Certificate of Appealability awaits a request therefore. The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
DONE and ORDERED.
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, United States Chief Magistrate Judge.
Petitioner, with the assistance of counsel, brought this habeas corpus action to obtain relief from a seventeen-year sentence imposed by the Clark County Common Pleas Court on Petitioner's conviction on one count of kidnaping, one count of fleeing and eluding, and one count of felonious assault. Petitioner raises the following grounds for relief:
Ground One: Denial of due process under the 5th and 14th amendments by state's failure to enforce its own statutory procedures in giving a first-time offender non-minimum sentences, and in giving a maximum sentence as required and prohibited by law, respectively.
Supporting Facts: State statutory schemes require giving a first time offender minimum sentences, unless certain findings are made by the trial court. Said findings were not present, and were not made "on the record" as required under the Ohio Supreme Court case law.
Ground Two: Denial of due process under the 5th and 14th amendments, due to the state's failure to enforce its own statutory procedures in giving consecutive sentences and when the prosecution conceded error on said issue.
Supporting Facts: Petitioner was a first time offender at age 59. He had no prior record of any kind. He was a 30 + year retiree from Navistar, Inc. State statutory schemes require that certain factors be present and found and stated on the record by the trial court during sentencing in order to justify giving consecutive sentences. Said factors were not present, and the prosecutor conceded error on the issue of the trial court's failure to make send findings on the record, yet the state Court of Appeals sustained the trial court's sentences.
Ground Three: Denial of due process under the 5th, 6th, and 14th amendments, as the sentencing court made findings, exclusive to the providence [sic] of the jury, to give more than statutory minimum sentences to a first-time offender and to give consecutive sentences.
Supporting Facts: State statutory schemes require that a first time offender receive a minimum sentence and that a defendant not receive consecutive sentences, unless certain "aggravating" factors are found by the trial court judge. Petitioner is a first-time offender, yet he received non-minimum and maximum sentences that will run consecutively. Not only did the trial court fail to make the necessary findings on the record to justify such sentences, such as sentence and sentencing scheme are in direct conflict with United States Supreme Court case law precedent.
(Petition, Doc. No. 1, at 6-9.)
On the Court's order, Respondent has filed an answer (Doc. No. 11).
The facts giving rise to this case, as summarized by the Court of Appeals for Clark County, Ohio, are as follows:
[*P1] On April 29, 2002, the Defendant, Keith Abshear, was indicted on charges of aggravated burglary, rape, felonious assault, kidnapping [sic], fleeing and eluding, and two counts of domestic violence. These charges arose from an incident wherein the Defendant broke into the home of his ex-wife, bound her hands in tape and forced her to engage in sexual intercourse. Shortly thereafter, the victim escaped and fled from the Defendant in her car. The Defendant gave chase and eventually ran the victim's car off of the road. The Defendant then forced the victim into his car and drove off with her. The police were notified of the abduction by a passerby. The police located the Defendant's vehicle and a lengthy chase ensued, finally culminating when the police disabled the Defendant's vehicle.
[*P2] On May 16, 2002, the Defendant entered a plea of not guilty on all counts of the indictment. On January 10, 2003, the Defendant withdrew his not guilty plea and entered negotiated pleas of guilty. In exchange for the Defendant's guilty plea to the crimes of felonious assault, R.C. 2903.11, kidnapping, R.C. 2905.01, and fleeing and eluding, R.C. 2921.331(B), the State agreed to dismiss the remaining charges in the indictment.
[*P3] A sentencing hearing was held on February 7, 2003. The trial court heard testimony from the Defendant's psychologist, heard a lengthy statement from the victim, and heard a statement from the Defendant. After hearing all of the testimony and statements, the trial court imposed a sentence of four years on the felonious assault charge, eight years on the kidnapping charge, and five years on the fleeing and eluding charge. The trial court ordered all three sentences to be served consecutively, for a total of seventeen years.
(Quoted at Doc. No. 11, 4-5.)
Defendant was indicted on a number of charges arising from the above facts. He negotiated a guilty plea to three counts, but was sentenced to more time than he expected and the prosecutor had recommended. He then appealed, raising one assignment of error: "Because the trial court did not state its reasons for imposing consecutive sentences, the defendant's sentence is contrary to the law and constitutes an abuse of discretion." (Brief, Ex. 4 to Doc. No. 11.) That assignment was amended in his Reply Brief to read "Because the trial court's findings were not aligned to its decision to impose consecutive sentences, the consecutive sentences are contrary to law." Id. at Ex. 6. Finally, in a supplemental brief, Petitioner pled an additional assignment of error: "The trial court erred in imposing a sentence in excess of the minimum on a first time offender without making the findings required by R.C. 2929.14(B)." Id. at Ex. 7.
The Court of Appeals affirmed the conviction and sentence. Petitioner then sought review in the Ohio Supreme Court, pleading one proposition of law:
If a trial court chooses to impose consecutive sentences pursuant to R.C. 2929.14(E), it must first make the statutorily enumerated findings and give reason supporting those findings at the sentencing hearing. The trial court must clearly align each reason with the specific finding in order to support its decision to impose consecutive sentences.
Id. at Ex. 10. The Ohio Supreme Court declined to exercise jurisdiction. Id. at Ex. 12.
After filing his Petition in this Court, Mr. Abshear sought and received a stay of these proceedings to pursue an application for delayed reopening in the Ohio Court of Appeals to raise a claim of ineffective assistance of appellate counsel (Doc. Nos.4, 5). In that Application, he asserted his appellate counsel was ineffective for failing to raise the following assignment of error:
Applicant was denied effective...
To continue reading
Request your trial
-
Smith v. Bagley
...difference in legal theory, exhaustion of one claim is not sufficient to find exhaustion of other claim). See also Abshear v. Moore, 546 F. Supp. 2d 530, 541 (S.D. Ohio 2008) ("Because claims of ineffective assistance of appellate counsel are based on a different legal theory from the under......
-
Smith v. Bagley
...difference in legal theory, exhaustion of one claim is not sufficient to find exhaustion of other claim). See also Abshear v. Moore, 546 F. Supp. 2d 530, 541 (S.D. Ohio 2008) ("Because claims of ineffective assistance of appellate counsel are based on a different legal theory from the under......
-
Perez v. Sheldon
... ... status of a claim cognizable in habeas corpus.”); ... Abshear v. Moore , 546 F.Supp.2d 530, 537 (S.D. Ohio ... Mar. 3, 2008) (“Merely using talismanic ... ...
-
Cooper v. Warden, Lebanon Corr. Inst.
...theory from the underlying claims, the 26(B) application does not preserve the underlying claims from default." Abshear v. Moore, 546 F.Supp.2d 530, 541 (S.D. Ohio 2008), aff'd, 354 Fed.Appx. 964 (6th Cir. 2009) (citing White v. Mitchell, 431 F.3d 517, 526 (6th Cir. 2005)) - the default for......