Barnett v. Turner

• Decision Date: 16 November 2016
• Docket Number: CASE NO. 3:15-cv-02195
• Court: U.S. District Court — Northern District of Ohio
• Parties: ROBBY B. BARNETT, Petitioner, v. NEIL TURNER, Warden, Respondent.

ROBBY B. BARNETT, Petitioner, v. NEIL TURNER, Warden, Respondent.

CASE NO. 3:15-cv-02195

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

November 16, 2016

JUDGE PATRICIA A. GAUGHAN

MAGISTRATE JUDGE DAVID A. RUIZ

REPORT AND RECOMMENDATION

Petitioner, Robby B. Barnett (hereinafter "Petitioner" or "Barnett"), challenges the constitutionality of his conviction in the case of State v. Barnett, Auglaize County Court of Common Pleas Case No. 2013-CR-55. Petitioner, pro se, filed his Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 23, 2015. (R. 1). On March 4, 2016, Warden Neil Turner ("Respondent") filed his Answer/Return of Writ. (R. 6). Petitioner filed a traverse on April 18, 2016 (R. 8), to which Respondent filed a reply. (R. 9). This matter is before the undersigned Magistrate Judge pursuant to Local Rule 72.2. For reasons set forth in detail below, it is recommended that the habeas petition be DENIED.

I. Summary of Facts

Factual determinations made by state courts are presumed correct in a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6^th Cir. 2012) ("State-court factual findings are presumed correct unless rebutted by clear and convincing evidence.") The Third District Court of Appeals (hereinafter "state appellate court") summarized the facts underlying Barnett's conviction as follows:

{¶ 2} On May 4, 2011, shortly before midnight, there was a fire in Auglaize County in a trailer belonging to one Jeff Aldrich ("Aldrich"). (Jury Trial Tr. at 180.) When the emergency personnel arrived, Aldrich was found dead on his couch. (Tr. at 186-188.) An investigation led the police to Barnett. (Tr. at 852-853, 865.) On May 17, 2011, upon a search of Barnett's residence located in Logan County, the police found and seized evidence of drug manufacturing. (Tr. at 550-560; State's Ex. 136-149.) The items found were consistent with cooking methamphetamine and were similar to items found in Aldrich's trailer. (Tr. at 550-560; 735-738;, 896-898.) Additionally, the residence bore signs of a prior fire or fires. (Id.; Ex. 137-142, 171; 669-671.) Based on the evidence found in Barnett's apartment, on September 13, 2011, charges were filed against him in Logan County for illegal assembly or possession of chemicals for the manufacture of drugs, illegal manufacture of drugs, and possession of drugs. See State v. Barnett, 3d Dist. Logan No. 8-12-09, 2013-Ohio-2496, ¶2 (June 17, 2013). Those charges were based on Barnett's actions in Logan County and did not directly relate to the Auglaize County fire in Aldrich's trailer. See id. Although we are not reviewing the Logan County case at this point, the issues before us require that we mention it.

{¶ 3} On February 26, 2013, Barnett was charged in the current case. The indictment alleged that on May, 4, 2011, in Auglaize County, Ohio, Barnett caused the death of another as a proximate result of committing or attempting to commit a felony. (R. at 1, Indictment.) It further alleged that Barnett possessed chemicals for the manufacture of methamphetamine and engaged in illegal manufacture of methamphetamine on the same date in Auglaize County. (Id.) These charges were connected to the fire in Aldrich's residence in Auglaize County on May 4, 2011. R. at 56, State's Resp. Def.'s Req. for Bill of Particulars.) In particular, the State alleged that the fire at Aldrich's residence, which resulted in Aldrich's death, was caused by the illegal manufacturing of methamphetamine in which Barnett participated on May 4, 2011. (Id.)

{¶ 4} Barnett pled not guilty and the matter was scheduled for a jury trial. The trial court appointed attorney Gerald Siesel ("attorney Siesel") from the Auglaize County Public Defender's Office as Barnett's defense counsel. (R. at 16.) On August 22, 2013, Barnett filed a motion in limine, requesting that the State be prevented "from introducing into evidence at trial testimony of prior and/or similaracts of the Defendant resulting from the search of defendant's former residence * * * [in] Logan County, Ohio, pursuant to a warrant to search issued on May 17, 2011." [note 2] (R. at 184.) Barnett alleged "that the admission of this evidence as 'other prior and/or similar acts'" would violate Ohio Evid.R. 402, 403, and 404(B), as well as his due process right, the United States Constitution, and the Ohio Constitution. (Id.) The trial court conducted hearings on the matter and denied the motion. (R. at 211, J. Entry, Sep. 10, 2013.) The trial court found that

[t]he evidence is relevant pursuant to Evidence Rule 403, and for the most part is not really "other act" testimony but is circumstantial evidence of the Defendant's involvement in the instant acts. * * * [E]vidence of his possession of materials to make methamphetamine is relevant to the charges, as well as evidence of prior fires within his other property in Logan County goes to show scienter of the volatile nature of cooking methamphetamine. Even if a portion of the testimony is considered "other act" evidence, the testimony is relevant as being within "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" with Evid.R. 404(B). (Id.)

{¶ 5} The jury trial started on September 16, 2013, and lasted five days. The jury found Barnett guilty of all counts in the indictment and this appeal followed.

[Note 2] Barnett further requested that the State "be prevented from presenting in its case in chief at trial in this matter evidence relating to the Defendant's conviction for assembly/possession of chemicals used in the manufacture of methamphetamines * * * in the Logan County Common Pleas Court, Case No. CR-11-08-0157." (R. at 184.) The State indicated that it would not use evidence of the conviction at trial (Pending Mot. Hr'g at 8), and no assignment of error is raised with respect to that.

State v. Barnett, 2015-Ohio-224, ¶¶ 2-5, appeal not allowed, 2015-Ohio-2104, ¶¶ 2-5, 142 Ohio St. 3d 1478, 31 N.E.3d 655 (Ohio Ct. App. Jan. 26, 2015).

II. Procedural History

A. Conviction

On February 21, 2012, an Auglaize County Grand Jury charged Petitioner with one count of involuntary manslaughter in violation of Ohio Revised Code ("O.R.C.") § 2903.04(A), one count of the illegal manufacture of a controlled substance in violation of O.R.C. § 2925.04(A)(C)(3)(a), and one count of assembly or possession of chemicals used to manufacturecontrolled substance with intent to manufacture a controlled substance in violation of O.R.C. § 2925.041. (R. 6-1, PageID# 96-97, Exh. 1).

After Barnett's initial counsel withdrew, Petitioner was appointed counsel from the Auglaize County Public Defender's office. (R. 6-1, PageID# 99-102, Exhs. 2-4). Through counsel, Barnett filed a motion to suppress evidence seized pursuant to a warrantless search of the victim's residence, a motion to suppress electronic evidence and GPS data seized from Sprint/Nextel Communications, and a motion to suppress evidence seized from both his residence and his person, specifically blood and urine test results. (R. 6-1, PageID# 103-113, Exhs. 5-7). On August 6, 2012, after conducting a hearing, the trial court overruled Barnett's motions to suppress. (R. 6-1, PageID# 114-122, Exh. 8).

On October 26, 2012, upon the State's motion, the trial court dismissed the case without prejudice. (R. 6-1, PageID# 123, Exh. 9).

On February 26, 2013, Petitioner was re-indicted and an Auglaize County Grand Jury again charged him with one count of involuntary manslaughter in violation of O.R.C. § 2903.04(A), one count of the illegal manufacture of a controlled substance in violation of O.R.C. § 2925.04(A)(C)(3)(a), and one count of assembly or possession of chemicals used to manufacture controlled substance with intent to manufacture a controlled substance in violation of O.R.C. § 2925.041. (R. 6-1, PageID# 124-126, Exh. 10).

On March 15, 2013, through counsel, Petitioner again filed a motion to suppress electronic evidence and GPS data seized from Sprint/Nextel Communications, as well as a motion to suppress evidence seized from both his residence and his person. (R. 6-1, PageID# 129-134, Exhs. 12-13). After holding suppression hearings on May 31, 2013 (R. 6-2, PageID# 385-404) and July 16, 2013 (R. 6-4, PageID# 436-549), the trial court overruled Barnett's motions. (R. 6-1, PageID#138-144, Exh. 16).

On July 9, 2013, at the final pre-trial hearing, Barnett requested that his attorney be dismissed due to ineffective assistance, but the trial court found that "the conduct of the Defense Counsel did not rise to the level of ineffective assistance and the Court encouraged the Defendant and Defense Counsel to improve communications" and refused to appoint new counsel "in light of lengthy preparation required and [defense counsel's] experience as a qualified death sentence defense counsel and his long track record in this Defendant's cases." (R. 6-1, PageID# 136, Exh. 15).

On August 19, 2013, the State filed a motion in limine to prohibit the defense from introducing evidence of a State witness's bipolar disorder or the reasons for which the same witness was not admitted into the United States Marine Corps. (R. 6-1, PageID# 145, Exh. 17). On August 22, 2013, Barnett, through counsel, also filed a motion in limine seeking to prohibit the State from:

1. [I]ntroducing into evidence at trial testimony of prior and/or similar acts of the Defendant resulting from the search of Defendant's former residence located at 114 Chase Street, Russells Point, Logan County, Ohio, pursuant to a warrant to search issued on May 17, 2011.

2. [P]resenting in its case in chief at trial ... evidence relating to the Defendant's [prior] conviction for assembly/possession of chemicals used in the manufacture of methamphetamines, in violation of O.R.C. Section 2925.041(A)....

(R. 6-1, PageID# 147-149, ...