Allen v. Haviland

• Decision Date: 22 October 2021
• Docket Number: 3:18-CV-02839-JZ
• Parties: TERENZO D. ALLEN, Plaintiff, v. WARDEN JAMES HAVILAND, Defendant,
• Court: U.S. District Court — Northern District of Ohio

TERENZO D. ALLEN, Plaintiff, v. WARDEN JAMES HAVILAND, Defendant,

No. 3:18-CV-02839-JZ

United States District Court, N.D. Ohio, Eastern Division

October 22, 2021

JACK ZOUHARY UNITED STATES DISTRICT JUDGE

REPORT & RECOMMENDATION

CARMEN E. HENDERSON UNITED STATES MAGISTRATE JUDGE

I. Introduction

Petitioner Terenzo Allen, seeks a writ of habeas corpus under 28 U.S.C § 2254. Allen is an Ohio prisoner who is currently serving an aggregate sentence of eleven years in prison and a five-year term of post-release supervision for drug trafficking and possession. Allen asserts thirteen grounds for relief. (ECF No. 1). Respondent, Warden James Haviland, filed a return of writ on March 20, 2019. (ECF No. 9). On September 14, 2020, this Court established a final deadline of October 20, 2020 by which Allen needed to have filed a traverse. (ECF No. 10). Allen did not file a traverse.

This matter was referred to me under Local Rule 72.2 to prepare a report and recommendation on Allen's petition and other case-dispositive motions. Because Allen has presented only meritless and non-cognizable claims, I recommend that the Court deny his petition in its entirety and not grant him a certificate of appealability.

II. Relevant Factual Background

The Ohio Court of Appeals for the Sixth Appellate District set forth the following facts^[1] on direct appeal:

{¶ 6} On September 26, 2014, Ohio State Highway Patrol Trooper Alejo Romero, III, was in the crossover of Interstate 75 in Wood County, observing southbound traffic. While sitting in the crossover, Romero observed a black Nissan Altima that was not speeding, but that was following too closely to the vehicle in front of it. Romero testified that the Altima was approximately one and one-half to two car-lengths behind the vehicle in front of it, when it should have been six car-lengths behind. After passing Romero, the Altima then slowed down and moved into the right lane of traffic.

{¶ 7} Romero testified that he pulled out and followed the Altima to run its registration and to stop the vehicle for following too close. The Altima had a Florida registration, and appeared to Romero to be a rental car. As Romero approached the Altima on the passenger side, he observed that there was another male person sitting in the passenger seat, and appellant was laying across the back seat. Romero testified that appellant was pretending to be asleep, but Romero could see appellant open his eyes to peek at him. During the stop, Romero noticed three car air fresheners: one on the dashboard, and two on the center console. Romero also noticed that there were three smart phones and two flip phones in the car. Romero then asked the driver to accompany him back to the patrol car so that Romero could get his information and issue a warning. While in the patrol car, Romero inspected the rental agreement and noticed that it was rented to a female who was not in the car. The driver explained that the renter was the front passenger's daughter's mother. The rental agreement also stated that the renter was the only authorized driver, and that the car could only be driven in Michigan. Romero then went back to the Altima to gather more information about the rental agreement from the front passenger.

{¶ 8} When he approached the Altima the second time and leaned in the passenger window to speak with the front passenger, Romero testified that he smelled the odor of raw marijuana. At that point, another officer arrived, and appellant and the other passenger were removed from the car, and the car was searched. Under the carpet near the center console, Romero found a small digital scale and three cellophane packages of white powder, which was later revealed to be 252 grams of heroin. A small amount of marijuana was also found in the passenger's side front door storage pouch.

{¶ 9} Once the car was transported to the Ohio State Highway Patrol post in Bowling Green, an inventory search revealed a backpack in the trunk that contained numerous rubber bands. Romero testified that rubber bands are often used to hold large amounts of cash.

{¶ 10} As part of the investigation, Lieutenant Scott Wyckhouse asked the occupants of the Altima to identify to whom each of the phones belonged. Appellant claimed one of the smart phones and one of the flip phones. Notably, the front seat passenger claimed an iPhone, and provided Wyckhouse with the password to unlock the phone. On the iPhone, Wyckhouse found several pictures that depicted appellant and the other occupants of the car, holding guns and approximately $90, 000 in cash. Appellant was wearing the same clothes in the pictures as he was when he was arrested. In addition, the pictures also showed the backpack that was found in the car, as well as a 2-liter bottle of Sprite containing a purple substance, which was also found in the car. One of the pictures also showed appellant driving the Altima.

{¶ 11} Finally, text messages from appellant's flip phone were entered into evidence. Christopher McGee, who was the forensic computer specialist who downloaded the messages from the phone, testified that the messages were consistent with drug activity.

{¶ 12} Following the state's presentation of its case-in-chief, appellant moved for acquittal pursuant to Crim.R. 29, which the trial court denied. The defense then rested without calling any witnesses. The matter was submitted to the jury, which returned with a verdict of guilty on both counts, with the additional finding that the amount of the drug involved in both offenses equaled or exceeded 250 grams.

State of Ohio v. Allen, 2018-Ohio-887, ¶¶ 6-14 (6th App. Dist., Mar. 9, 2018).

III. Relevant State Procedural History

A. Indictment

Allen was indicted on October 4, 2014, for:

Count 1: Drug Possession (Heroin), R.C. 2925.11(C)(6)(f), felony of the first degree, with major drug offender specification, R.C. 2941.1410(A);

Count 2: Trafficking (Heroin), R.C. 2925.03(A)(2), 2925.03(C)(6)(g) felony of the first degree, with major drug offender specification, R.C. 2941.1410(A);

(ECF No. 9-1, PageID #: 95-97). At arraignment, Allen plead not guilty to all charges. (ECF No. 9-1, PageID #: 98).

B. Motions to Suppress

On December 16, 2014, counsel for Allen informed the court that there were no suppression issues. (ECF No. 9-1, PageID #: 102). The same day, Allen also signed a waiver of time for speedy trial through the “completion of [the] case.” (ECF No. 9-1, PageID #: 102, 104). On March 10, 2016, through new counsel, Allen moved to suppress evidence obtained during the stop and search of the vehicle. (ECF No. 9-1, PageID #: 120). The State objected on the basis that Allen lacked standing as he did not rent the rental car involved and was not otherwise an authorized driver of the rental car and thus had no expectation of privacy in the rental car or its contents. (ECF No. 9-1, PageID #: 133). On May 16, 2016, Allen filed a supplemental memorandum in support of his motion to suppress in which he claimed to have standing to challenge the search of the rental car. (ECF No. 9-1, PageID #: 137). On the same date, the State filed an opposition to the motion to suppress. (ECF No. 9-1, PageID #: 145-162). After a hearing, the trial court denied the motion to suppress. (ECF No. 9-1, PageID #: 163-166).

C. Motion to Dismiss Based on Speedy Trial Violation

On October 14, 2016, Allen moved to dismiss the charges against him for denial of his right to a speedy trial. (ECF No. 9-1, PageID #: 167-172). The trial court denied the motion on October 24, 2016. (ECF No. 9-2, Page ID #: 384-385 and 173).

D. Trial and Guilty Verdict

A jury trial was held October 24-25, 2016. (ECF No. 9-1, PageID #: 173-174). The jury found Allen guilty of both counts in the indictment. (ECF No. 9-1, PageID #: 176-177). The jury further determined that the amount of heroin involved in each count equaled or exceeded 250 grams, making the defendant a Major Drug Offender (“MDO”) under R.C. 2941.1410(A). (ECF No. 9-1, PageID #: 176-177).

E. Sentencing

The State agreed that Count 1 and Count 2 merged for the purpose of sentencing and elected to proceed to sentencing on Count 2. (ECF No. 9-1, PageID #: 174). The court sentenced Allen to eleven years' imprisonment followed by five years' post release control as well as a $10, 000 fine. (ECF No. 9-1, PageID #: 179).

F. Direct Appeal

On appeal, Allen raised thirteen assignments of error:

1. Trial counsel failed to provide effective assistance under the Sixth Amendment when counsel failed to include in his motion to suppress illegally seized text messages from a cell phone purportedly belonging to the Appellant.

Issue Presented for Review: Whether trial counsel was ineffective when he failed to exclude incriminating text messages from a cell phone illegally seized without a search warrant, or consent?

2. The Appellant failed to receive effective assistance of counsel under the Sixth Amendment when counsel failed to raise the proper objection to the admission of photographs from co-defendant Green's cell phone purportedly involving the Appellant's “purported” drug dealing and gun toting lifestyle.

Issue Presented for Review: Whether trial counsel was ineffective when he failed to raise the proper objection to the admission of photographs of a non-testifying co-defendant whose was separated from the Appellant's case?

3. The trial court erred when it denied the Appellant's motion for acquittal of drug possession of heroin and trafficking in heroin, under favor of Rule 29, Ohio Rules of Criminal Procedure.

Issue Presented for Review: Whether the trial court should have entered a judgment of acquittal due to insufficiency of the evidence?

4. The Appellant's convictions of drug possession and drug trafficking, was [sic] against

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