Baer v. Clipper

• Decision Date: 28 January 2013
• Docket Number: Case No. 2:10-cv-1164
• Parties: WILLIAM H. BAER, Petitioner, v. KIMBERLY CLIPPER, Warden Grafton Correctional Institution Respondent.
• Court: U.S. District Court — Southern District of Ohio

WILLIAM H. BAER, Petitioner,

v.KIMBERLY CLIPPER, Warden Grafton Correctional Institution Respondent.

Case No. 2:10-cv-1164

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

January 28, 2013

District Judge George C. Smith

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

Petitioner William H. Baer brought this habeas corpus action under 28 U.S.C. § 2254 to obtain relief from his conviction in the Harrison County Common Pleas Court on two counts each of rape, sexual battery, and gross sexual imposition for which he is serving two life sentences in Respondent's custody (Petition, Doc. No. 1, ¶¶ 3 & 5, PageID 1). Petitioner pleads the following Grounds for Relief:

Ground One: Speedy Trial Violation as guaranteed by the Sixth Amendment to the United States Constitution.

Supporting Facts: Trial was held despite the time for trial having expired.

Ground Two: Plain Error in Amended Indictment violating the guarantees provided by the Fifth and Fourteenth Amendment[s] to the United States Constitution.

Supporting Facts: Indictment was amended that added enhancement to the charges brought by the grand jury but not by the grand jury but by the prosecutor and outside of grand jury's realm.

Ground Three: Violation of Witness Confrontation as guaranteed by the Sixth Amendment to the United States Constitution.

Supporting Facts: Hearsay evidence was admitted through expert testimony which did not allow witness confrontation and direct cross examination.

Ground Four: Ineffective Assistance of Counsel in violation of the guarantees provided by the Sixth Amendment to the United States Constitution.

Supporting Facts: Defense counsel failed to call witnesses that supported defense of defendant nor did counsel call defendant to testify in his own behalf.

Ground Five: Cumulative Prejudicial Trial Error violating Fifth and Fourteenth Amendment Guarantees of U.S. Constitution.

Supporting Facts: Defense attorney's failure to properly represent defendant allowed testimony and evidence into the trial that had objections been made and upheld prejudicial material would not have been allowed.

Ground Six: Insufficient Evidence to Support Conviction violating protections of Fifth and Fourteenth of U.S. Constitution.

Supporting Facts: Conflicting statements of victims were not given proper weight in judicial consideration and heavily prejudiced defendant.

Ground Seven: Batson violation contravening guarantees of the V, VI, and XIV Amendments to the U.S. Constitution.

Supporting Facts: African-American member of jury venire was excluded from panel without a race-neutral reason being provided.

(Petition, Doc. No. 1, PageID 5-14.) On Order of Magistrate Judge Deavers, the Respondent has filed a Return of Writ (Doc. No. 7). Attorney David Doughten entered an appearance on behalf of Petitioner and filed the Traverse on his behalf (Doc. No. 19). In doing so, counsel stated

Baer will request to amend his petition by counsel to ensure the claims below are properly presented. It should be noted that Claim Seven, a Batson claim, is fully exhausted and properly presented.

Many of the other claims were not fairly presented as federal claims in state court. Other claims need further development.

Id. at PageID 1584. The Traverse was filed August 30, 2011, and nothing further has been filed.

Analysis

Ground One: Constitutional Speedy Trial Violation

In his First Ground for Relief, Baer asserts the timing of his trial violated his constitutional right to a speedy trial under the Sixth Amendment to the United States Constitution. The Warden asserts this First Ground is procedurally defaulted (Answer, Doc. No. 7, PageID 38).

The procedural default defense in habeas corpus is described by the Supreme Court 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, 750 (1991); see also Simpson v. Jones, 238 F.3d 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 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). Absent cause and prejudice, a federal habeaspetitioner 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)(citation omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963). Coleman, 501 U.S. at 724.

Failure to raise a constitutional issue at all on direct appeal is subject to the cause and prejudice standard of Wainwright. Murray, 477 U.S. at 485; Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94, 97 (6th Cir.), cert denied, 474 U.S. 831 (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, 848 (1999)(citations omitted). "Even if the state court failed to reject a claim on a procedural ground, the petitioner is also in procedural default 'by failing to raise a claim in state court, and pursue that claim through the state's ordinary appellate procedures.'" Thompson v. Bell, 580 F.3d 423, 437 (6th Cir. 2009), citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006), quoting O'Sullivan v. Boerchel, 526 U.S. 838, 846-47 (1999).

To preserve a federal constitutional claim for presentation in habeas corpus, the claim must be "fairly presented" to the state courts in a way which provides them with an opportunity to remedy the asserted constitutional violation, including presenting both the legal and factual basis of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir. 1991). The claim must be fairly presented at every stage of the state appellate process. Wagner v. Smith, 581 F.3d 410, 418 (6th Cir. 2009).

The Harrison County Court of Appeals decided Baer's speedy trial assignment of error as follows:

[P 27] In his first assignment of error, Baer argues:

[P 28] "The indictment for the allegations of life rape should have been dismissed pursuant to a speedy trial violation."

[P 29] Baer asserts that the amended indictment had the effect of bringing new charges upon Baer, renewing Baer's previously waived right to a speedy trial. Baer again correctly limits his argument to a plain error analysis, as he has waived the issue through his failure to object at any point during trial.

[P 30] A defendant in a felony case has the right to be brought to trial within two hundred seventy days after arrest. R.C. 2945.71(C)(2); Ohio Constitution Art. I §10. When a defendant waives his right to a speedy trial, such waiver must be done knowingly, voluntarily, and intelligently. State v. Adams (1989), 43 Ohio St.3d 67, 69, 538 N.E.2d 1025. When the State issues a subsequent indictment, or when the State amends an indictment so as to bring additional charges against the accused, any previous speedy trial waiver by the defendant does not apply. Id. at syllabus. However, when the State amends an indictment but does not change the name or identity of the offense charged, any prior speedy trial waiver by the defendant continues to apply. State v. Campbell, 150 Ohio App.3d 90, 2002 Ohio 6064, 779 N.E.2d 811, at P24, affirmed by State v. Campbell, 100 Ohio St.3d 361, 2003 Ohio 6804, 800 N.E.2d 356.

[P 31] As discussed supra, the trial court did not erroneously amend the indictment against Baer, and the changes that were made did not constitute changes in the name or identity of the crime. The specifications complained of did not have the effect of placing an additional burden on Baer's liberty, and thus were not the equivalent of new charges. Given the foregoing, Baer's speedy trial waiver applied to the entirety of his court proceedings. Baer's first assignment of error is meritless.

State v. Baer, No. 07 HA 8, 2009 Ohio 3248, 2009 Ohio App. LEXIS 2812 ¶¶ 27-31. As this opinion makes clear, Baer argued the speedy trial issue on appeal solely as a matter of state law. Indeed, Baer admits in his Traverse that this issue was not presented to the Ohio courts as amatter of federal law. (Traverse, Doc. No. 19, PageID 1585-1586.) Therefore Baer procedurally defaulted any federal constitutional speedy trial claim he may have had by not fairly presenting it to the state courts.

Independent of the fair presentation default, Baer also defaulted by not raising any speedy trial objection at trial. The court of appeals recognized and enforced this default by analyzing the speedy trial claim only under plain error doctrine. State v. Baer, supra, ¶ 29. Ohio's contemporaneous objection rule — that parties must preserve errors for appeal by calling them to the attention of the trial court at a time when the error could have been avoided or corrected, set forth in State v. Glaros, 170 Ohio St. 471 (1960), paragraph one of the syllabus; see also State v. Mason, 82 Ohio St. 3d 144, 162 (1998) — is an adequate and independent state ground of decision. Wogenstahl v. Mitchell, 668 F.3d 307, 334 (6th Cir. 2012)(citing Keith v. Mitchell, 455 F.3d 662, 673 (6th Cir. 2006); Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Biros v. Bagley, 422 F.3d 379, 387 (6th Cir. 2005); ...