Bowling v. Warden, London Corr. Inst.

Decision Date05 November 2013
Docket NumberCase No. 1:12-cv-183
PartiesDUAYNE BOWLING, Petitioner, v. WARDEN, LONDON CORRECTIONAL INSTITUTION, Respondent.
CourtU.S. District Court — Southern District of Ohio

Spiegel, J.

Litkovitz, M.J.

REPORT AND
RECOMMENDATION

Petitioner, an inmate in state custody at the London Correctional Institution in London, Ohio, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the original petition filed on February 21, 2012,1 petitioner presents six grounds for relief. (See Doc. 1). On June 27, 2013, the Court allowed petitioner to amend the petition to add a seventh ground for relief and ordered respondent to file a supplemental return of writ responding to the additional claim. (Doc. 17; see also Doc. 15). At this juncture, it appears that the parties have filed all pleadings necessary for final disposition of the case. Therefore, this matter is now before the Court on the petition as amended and "merits brief; respondent's return of writ and supplemental return of writ responding to petitioner's allegations; and petitioner's "traverse" briefs in reply to the return of writ and supplemental return of writ. (Docs. 1, 6, 7, 10, 18, 21).

I. FACTUAL BACKGROUND

The Ohio Court of Appeals, First Appellate District, has provided the following summary of the facts giving rise to petitioner's criminal prosecution based on evidence presented at hisjury trial:2

Harrison Police Officer Chris MacMurdo testified that on October 6, 2009, he had stopped a car because a routine registration check had revealed that the car's owner had an open warrant. Bowling was driving the car. The owner, Christina Polley, was not in the car at the time of the stop. When questioned by MacMurdo, Bowling admitted that he did not have a valid license. Because Bowling appeared to be very nervous, MacMurdo called for a second officer before he requested that Bowling exit from the car. Shortly before the second officer arrived at the scene, Polley walked up to the car. She later gave MacMurdo permission to search the car.
Upon searching the car, MacMurdo found six loose pseudoephedrine pills, a beverage can containing a "thick, white sludge," coffee filters with white residue on them, and a shotgun. After the car was towed to police headquarters, MacMurdo found receipts for products that were commonly used to make methamphetamine, two bottles of fuel additive, a box of pseudoephedrine pills, a metal pipe adapter with a shutoff valve, measuring spoons covered with white residue, mason jar lids covered with white residue, and a lithium battery. MacMurdo also found a digital camera and flash drive that had pictures that showed Bowling in a store holding up rubber tubing and drain cleaner, as well as a table with foil-covered bottles and a pill bottle filled with a white substance.
MacMurdo stated that after he had found the shotgun and the coffee filters, he had handcuffed Bowling and read him his Miranda rights. When MacMurdo asked Bowling if the residue on the filters was methamphetamine, Bowling admitted that it was. MacMurdo further testified that, although he had not been able to cycle the shotgun when he found it in the car, he had been able to make the shotgun function within a short time after it had been seized.
Sergeant Greg Morgan with the Hamilton County Sheriff's Department testified that he had been trained to identify methamphetamine laboratories. According to Morgan, the items that were found in the car were items used for the production of methamphetamine. And Brian Scowden, Chief Drug Analyst for the Hamilton County Crime Laboratory, testified that some of the powder that was recovered from the car had tested positive for methamphetamine.

(Doc. 7, Ex. 12, pp. 2-3) (footnote omitted).

II. PROCEDURAL HISTORY
State Trial Proceedings

In October 2009, the Hamilton County, Ohio, grand jury returned an indictment charging petitioner with one count of illegal assembly or possession of chemicals for the manufacture of drugs in violation of Ohio Rev. Code § 2925.041; one count of aggravated possession of drugs in violation of Ohio Rev. Code § 2925.11(A) with a firearm specification; and one count of having weapons while under disability in violation of Ohio Rev. Code § 2923.13(A)(3). (Doc. 7, Ex. 1).

A jury trial was initially scheduled to commence on January 26, 2010. (See id., Ex. 12, p. 1 & Trial Tr. 1). On that day, petitioner's counsel requested that an independent expert on the manufacture of methamphetamine be appointed and that the trial be continued "both to allow that and to be able to address further discovery from the State." (Id., Trial Tr. 5-6). The trial court denied the request for appointment of an independent expert, but granted a two-week continuance of the trial. (Id., Ex. 12, p. 1 & Trial Tr. 9-10, 12). The second trial proceeding commenced on February 10, 2010. (Id., Trial Tr. 17). However, on February 11, 2010, after the jury was empaneled, both petitioner and his counsel requested that counsel be allowed to withdraw from the case due to "a complete breakdown in communication" between them and that a new attorney be appointed to represent petitioner. (See id., Trial Tr. 138-42, 148). The court granted the request and declared a mistrial. (Id., Ex. 2 & Trial Tr. 148). The court appointed another attorney to represent petitioner and rescheduled the trial date to April 13, 2010. (Id., Ex. 12, p. 1). On April 9, 2010, petitioner's new counsel filed motions requesting an independent drug analysis and the appointment of an independent expert on the manufacture of methamphetamine. (Id., Exs. 3-4 & Ex. 12, pp. 1-2). Petitioner's counsel also requested a continuance of the trial date. (See id., Trial Tr. 160). The trial court denied all three motions. (Id., Exs. 5-6 &Trial Tr. 161-62).

The matter then proceeded to trial before a jury, which found petitioner guilty as charged. (See id., Ex. 7). On April 23, 2010, following a sentencing hearing held on April 19, 2010, the trial court issued a Judgment Entry sentencing petitioner to an aggregate prison term of twelve (12) years, which consisted of the following consecutive terms of imprisonment: five (5) years for the illegal assembly offense; one (1) year for the aggravated drug possession offense; one (1) year on the firearm specification attached to the aggravated drug possession charge; and five (5) years for the weapons offense. (Id., Ex. 8).

State Appeal Proceedings

With the assistance of new counsel for appeal purposes, petitioner timely appealed to the Ohio Court of Appeals, First Appellate District. (Doc. 7, Ex. 9). In the appellate brief filed by counsel on petitioner's behalf, petitioner raised six assignments of error:

1. The trial court erred to the prejudice of appellant by denying his motion for an independent laboratory analysis.
2. The trial court erred to the prejudice of the appellant when it denied his motion for the appointment of an independent expert on methamphetamine manufacture.
3. The trial [court] err[e]d to the prejudice of appellant by entering a judgment of conviction for having a weapon under disability where the jury's verdict was not supported by sufficient evidence.
4. The trial [court] erred to the prejudice of appellant by entering a judgment of conviction for a gun specification in Count II where the jury's verdict was not supported by sufficient evidence.
5. The trial court erred to the prejudice of appellant and abused its discretion by sentencing him to maximum, consecutive sentences.
6. The trial court erred to the prejudice of appellant by entering a judgment that was contrary to law because it imposed consecutive sentences without making findings required by R.C. 2929.14(E)(4).

(Id., Ex. 10).

On December 22, 2010, the Ohio Court of Appeals issued a Judgment Entry overrulingpetitioner's assignments of error and affirming the trial court's judgment. (Id., Ex. 12).

Petitioner next pursued a timely pro se appeal to the Ohio Supreme Court. (See id., Ex. 13). In his memorandum in support of jurisdiction, petitioner asserted the following propositions of law:

1. Tr[ia]l court denied defendant due process and statutory right when it request[ed] defendant to show a particul[ar]ized need for a[n] independent laboratory ana[]lysis.
2. The trial court denies the defendant due process of law when it . . . refused to appoint an expert witness for a[n] indigent defendant who shows that an expert would be helpful to his defense and that he cannot receive a fair trial without the expert's assistance.
3. The State knowingly used circumstantial evidence to make and sustain the convictions of having a weapon[] under disability, and a gun specification, knowing the evidence was not only insufficient but was in fact Tampered with. A violation of R.C.§2921.12 (F3).
4. Pursuant to R.C. §2929.14(E)(4), A trial court "MUST" make specific findings to justify the imposition of consecutive sentences. A trial court is derelict in it[]s duty when it imposes consecutive sentences without making any such findings. A violation of division (B) of R.C. §2921.44 (M1).
5. "All" counsel for the defendant failed to fully perform their duties as prescribed by law in this action, Thereby rendering defendant defenseless.

(Id., Ex. 14).

On April 6, 2011, the Ohio Supreme Court denied petitioner leave to appeal and summarily dismissed the appeal "as not involving any substantial constitutional question." (Id., Ex. 16).

Delayed Application To Reopen The Direct Appeal

On November 13, 2012, over a year and a half after the Ohio Supreme Court issued the final entry in the appeal proceedings and over eight months after petitioner commenced the instant federal habeas action, petitioner filed a pro se application with the Ohio Court of Appeals, First Appellate District, requesting that the direct appeal be reopened. (Doc. 18, Ex.18). In the application filed pursuant to Ohio R. App. P. 26(B), petitioner claimed in part that his appellate counsel was...

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