Barnes v. Hooks

• Decision Date: 06 February 2019
• Docket Number: Case No. 2:18-cv-948
• Parties: DANIEL L. BARNES,. III, Petitioner, v. MARK HOOKS, Warden, Ross Correctional Institution Respondent.
• Court: U.S. District Court — Southern District of Ohio

DANIEL L. BARNES,. III, Petitioner, v. MARK HOOKS, Warden, Ross Correctional Institution Respondent.

Case No. 2:18-cv-948

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

February 6, 2019

District Judge Michael H. Watson

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought by Petitioner Barnes with the assistance of counsel, is before the Court for decision on the merits. The relevant documents are the Petition (ECF No. 1), the State Court Record (ECF No. 6), the Return of Writ (ECF No. 7), and Petitioner's Reply (ECF No. 17).

Barnes seeks relief from his convictions by a jury and consequent sentences in the Muskingum County, Ohio Court of Common Pleas on counts of aggravated robbery with a firearm specification, felonious assault with a firearm specification, and having weapons under disability; he was acquitted on two kidnapping counts. (Judgment Entry, State Court Record ECF No. 6, Ex. 3, PageID 57-58.) He was sentenced to twenty-eight years imprisonment. Id. at Ex. 6, PageID 68-70). Those convictions and sentence remain were affirmed on direct appeal. State v. Barnes, 5^th Dist. Muskingum No. CT2015-0013, 2016-Ohio-1168 (. Mar. 17, 2016); appellate jurisdiction declined, 146 Ohio St.3d 1430 (2016). They remain in place after a good deal of appellate and post-conviction practice. Because the litigation history is complex, it will be adverted to as needed in this Report, rather than repeated at length.

Barnes timely filed his Petition in this Court, pleading the following Grounds for Relief:

Ground One: Petitioner was deprived of the effective assistance of counsel contrary to the Sixth Amendment to the federal constitution made applicable to the States by the Fourteenth Amendment and by Strickland v. Washington and its progeny.

Ground Two: The trial court erred in answering a question from the jury during deliberations without the presence of Appellant thereby depriving him of a fair trial as guaranteed by the State and federal constitutions.

Ground Three: The trial court made statements regarding Petitioner that were untrue in violation of his right to due process protected by the Fifth Amendment made applicable to the States by the Fourteenth.

(Petition, ECF No. 1, PageID 7, 14, 19).

Analysis

Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Barnes asserts he received ineffective assistance of trial counsel in the following ways:

(Sub-claim 1) Failure by the attorney to object to a question on redirect that was leading and beyond the scope of cross (T.P., Vol 1, at page 213)

(Sub-claim 2) Failed to object to the testimony of Patrolman Andrews as hearsay (T.P. Vol 1, at pages 228-232) (Sub-claim 3) Failed to object to Patrolman Groves who testified what Patrolman Andrews told him. Hearsay without exception. (T.P., Vol 1, at page 258[)]

(Sub-claim 4) Failed to cross examine George Guy. This witness gave conflicting accounts of the timing of when this incident allegedly occurred and could not initially identify petitioner.

(Sub-claim 5) Failed to object to the Detective's testimony regarding the amount of damage to Martin's vehicle. This was speculation and prejudicial. (T.P., Vol II, at page 322-323)

(Sub-claim 6) Failed to request lesser included offenses of assault and theft.

(Sub-claim 7) Failed to insist his client be present during a question by the jury

(Sub-claim 8) Failure to call corroborating witnesses

(Petition, ECF No. 1, PageID 9-10; Reply, ECF No. 17, PageID 1420-21). These sub-claims have been numbered 1-8 by the Magistrate Judge for precision in analysis.)

Barnes presented his claims of ineffective assistance of trial counsel to the Fifth District Court of Appeals as his Second Assignment of Error and that court decided the issue as follows:

{¶ 33} In the second assignment of error, Appellant argues he was denied the effective assistance of trial counsel.

{¶ 34} The standard for reviewing claims for ineffective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Ohio adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective assistance of counsel.

{¶ 35} First, we must determine whether counsel\s assistance was ineffective; i.e., whether counsel's performance fell below an objective standard of reasonable representation and violates any of his essential duties to the client. If we find ineffective assistance of counsel, we must then determine whether the defense was actually prejudiced by counsel's ineffectiveness such that the reliability of the outcome of the trial is suspect. This requires a showing there is a reasonable probability but for counsel's unprofessional error, the outcome of the trial would have been different. We apply the Strickland test to all claims of ineffective assistance of counsel, either trial counsel, or appellate counsel. State v. Blacker, 5th Dist. No.2005—CA—41, 2006-Ohio-5214.

{¶ 36} A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." Bradley at 143, quoting Strickland at 697.

{¶ 37} Appellant maintains his trial counsel was ineffective in failing to object to witness testimony presented at trial. Appellant cites the testimony offered by James Ricket on cross-examination. Specifically, Appellant argues the State's questioning was leading and beyond the scope of direct examination. During the testimony, Ricket testifies he heard Appellant demand "stuff" from Martin, and then Appellant took it. Tr. at 213. However, upon review of the transcript cited supra in our analysis and disposition of the first assignment of error, Ricket had testified on direct examination there were words exchanged between Appellant and Martin, and Appellant had told Martin to give him his money and to get out of the car. Tr. at 200. Therefore, the testimony elicited on cross-examination by the State was not beyond the scope of direct examination. We do not find trial counsel was ineffective for failing to object to the testimony. Further, Appellant has not demonstrated prejudice as a result of any alleged error.

{¶ 38} Appellant further cites testimony offered by Patrolman Andrews as to events Martin had told him, which should have been objected to as hearsay. Appellant maintains the testimony of the law enforcement officer bolstered allegations made by Martin.

{¶ 39} Patrolman Andrews testified at trial as to Martin opening the door of his cruiser and relating the incident to him. The evidence was not offered for the truth of the matter asserted, but rather as cumulative evidence to the testimony offered by Martin and Ricket previously as cited above. Therefore, Appellant has not demonstrated prejudice as a result of the testimony.

{¶ 40} In addition, Appellant maintains his trial counsel failed to object to testimony offered by Patrolman Groves regarding statements made by Patrolman Andrews, which he asserts also constituted hearsay. Patrolman Groves testified Patrolman Andrews radioed him and informed him the subject who assaulted Martin was Appellant.

{¶ 41} Upon review of the record, and as set forth above, Patrolman Groves testified he responded to a call of an assault with a handgun with his K-9 officer. He observed a suspect run between two houses, and exited his vehicle to chase on foot, following the human scent. His K-9 alerted to something dropped by the suspect, which later was identified as a Glock 23 handgun with a laser. Patrolman Andrews testified Martin was on foot, and entered his cruiser. Martin told him he had been robbed by Appellant and assaulted. Andrews reported the incident to Groves.

{¶ 42} We find the information was not offered for the truth of the matter asserted but offered to demonstrate the reasoning as to why Patrolman Groves chased a suspect. Moreover, the information was cumulative to the testimony of Martin who testified at trial he told Patrolman Andrews he had been assaulted by Appellant. Therefore, Appellant has not demonstrated, but for the alleged error, the outcome of the trial would have been otherwise, pursuant to the second prong of Strickland.

{¶ 43} In addition, Appellant notes his counsel elected not to cross-examine George Guy, a witness at trial, despite the discrepancy in his testimony as to the time of day. Appellant argues his counsel could have shown the jury Guy could not have seen Appellant get out of the car after the alleged incident since the incident occurred two hours after Guy testified the two persons exited the vehicle.

{¶ 44} Upon review of Guy's testimony, he testified he was walking his dog and observed two males exit the vehicle, one with braids. He testified it was around eleven in the evening, as when he returned the news was coming on. He called 9-1-1. Patrolman Barnhart responded to the call, and testified at trial.

{¶ 45} Upon review of the entire record, we find Appellant has not demonstrated, but for any presumed error, the outcome of the trial would have been otherwise. Therefore, Appellant has not met the second prong of Strickland.

{¶ 46} Further, Appellant maintains his counsel failed to object to speculative testimony offered by Detective Moore regarding how the damage occurred to Martin's vehicle. Martin testified the door could have been pushed too far in one direction. Tr. at 322-323. Appellant maintains hearing the testimony from a law enforcement official on behalf of the State permitted the jury to lend truth and value to the testimony.

{¶ 47} Appellant has not demonstrated but for the alleged error, the outcome of the trial would have been otherwise. Damage to the car door was not an issue at trial, and both parties stipulated a fight took place between them. Appellant has not demonstrated prejudice as a

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