Brandon v. Buchanan

• Decision Date: 22 January 2020
• Docket Number: Case No. 2:19-cv-2487
• Parties: RONALD BRANDON, Petitioner, v. TIM BUCHANAN, Warden, Noble Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

RONALD BRANDON, Petitioner, v. TIM BUCHANAN, Warden, Noble Correctional Institution, Respondent.

Case No. 2:19-cv-2487

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

January 22, 2020

District Judge Edmund A. Sargus, Jr.

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus action brought pro se by Petitioner Ronald Brandon to obtain relief from his convictions in the Muskingum County Court of Common Pleas on charges of engaging in a pattern of corrupt activity, possession of and trafficking in drugs, and having weapons while under disability.

Upon filing of the Petition (ECF No. 1), Magistrate Judge Chelsey Vascura ordered Respondent to file an answer and the state court record (ECF No. 4). Respondent has done so (State Court Record, ECF No. 10; Return, ECF No. 11). Petitioner has now filed a Reply (ECF No. 12), rendering the case ripe for decision.

The Magistrate Judge reference in the case was recently transferred to the undersigned to help balance the Magistrate Judge workload in the District (Transfer Order, ECF No. 13). The case remains assigned to District Judge Sargus for final decision.

Litigation History

In March 2017 the Muskingum County grand jury indicted Brandon on six counts: Count One: trafficking in drugs (cocaine), a fifth-degree felony in violation of Ohio Revised Code § 2925.03(A)(1); Count Two, possession of drugs (cocaine), a fifth-degree felony in violation of Ohio Revised Code § 2925.11(A); Count Three, possession of drugs (methamphetamine), a third-degree felony in violation of Ohio Revised Code § 2925.11(A); Count Four, possession of drugs (delta-9-tetrahydrocannabinol), a fifth-degree felony in violation of Ohio Revised Code § 2925.11(A); Count Five, engaging in a pattern of corrupt activity, a first-degree felony in violation of Ohio Revised Code § 2923.32(A)(1); and Count Six, having a weapon under disability, a third-degree felony in violation of Ohio Revised Code § 2923.13(A)(3) (State Court Record, ECF No. 10, PageID 49-50).

Brandon tried the first five counts to a jury, which convicted him on all five. The trial judge found him guilty on Count Six, the weapons charge, after a bench trial (State Court Record, ECF No. 10, PageID 53-54). He was sentenced to concurrent terms of thirty months and eleven months for the drug charges, ten years consecutive for the pattern of corrupt activity charge, and a further thirty months for the weapons charge, for an aggregate prison term of fifteen years. Id. at PageID 56.

Brandon appealed to the Ohio Fifth District Court of Appeals raising as his sole assignment of error that the record did not support consecutive sentences. The Fifth District affirmed. State v. Brandon, 2018-Ohio-3701 (Ohio App. 5^th Dist. Sept. 7, 2018). It then also denied Brandon's motion to file a supplemental brief pro se (State Court Record, ECF No. 10, PageID 108). Brandon did not appeal to the Supreme Court of Ohio.

On October 17, 2018, Brandon filed an application to reopen his direct appeal to assert as ineffective assistance of appellate counsel the omission of the following assignments of error:

1. The[] appellant received ineffective assistance of trial counsel pursuant to the failure to advance the affirmative defense of consent, as to Count One of the indictment.

2. The indictment failed to charge a third-degree possession of drugs for Count Three.

3. Appellant was denied due process of law, which is inalienable under the Fifth Amendment, when he was convicted of engaging in a pattern of corrupt activity without proof of every element beyond a reasonable. [sic].

4. Use of appellant's juvenile record to support the imposition of consecutive sentences denied due process and equal protection of the law, thereby constituting a reversible constitutional error.

(State Court Record, ECF No. 10, PageID 112-17). The Fifth District denied the application, id. at PageID 127-28, and the Supreme Court of Ohio declined review. Id. at PageID 158.

Brandon then filed the instant habeas corpus petition pleading the following grounds for relief:

Ground One: A criminal defendant is denied effective assistance of appellate counsel where counsel fails to raise "dead-bang" winners that would have strongly changed the outcome of appeal.

Ground Two: A criminal defendant receives ineffective assistance of trial counsel where a failure to advance an affirmative defense substantially prejudices him to conviction without sufficient evidence.

Ground Three: An indictment is sufficient in charging an offense if it recites the language of the relevant criminal statute, but fails to aggravate an offense if it lacks the degree of the offense and specific numerical designation.

Ground Four: When evidence gained from a non-testifying co-defendant is used against the accused, any conviction underscoredby this evidence must be reversed pursuant to the Confrontation Clause of the 6th U.S.C.A.

Ground Five: Use of a criminal defendant's juvenile record to support imposition of consecutive sentences denies due process and equal protection of the law.

(Petition, ECF No. 1, PageID 3-6.)

Analysis

Petitioner's Grounds Two, Three, Four, and Five were capable of adjudication on the record before the Fifth District on direct appeal, but none of them were raised in that forum. Based on these procedural facts, which Brandon does not contradict, all four of these claims are subject to procedural default.

The procedural default doctrine 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 (6^th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim 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 habeas petitioner who fails to comply with a State's rules of procedure waives his right to federalhabeas corpus review.'" Boyle v. Million, 201 F.3d 711, 716 (6^th Cir. 2000), quoting Gravley v. Mills, 87 F.3d 779, 784-85 (6^th Cir. 1996); accord: Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.

[A] federal court may not review federal claims that were procedurally defaulted in state court—that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is an important "corollary" to the exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed. d 659 (2004). "Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address" the merits of "those claims in the first instance." Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111 S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default doctrine thus advances the same comity, finality, and federalism interests advanced by the exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).

The Sixth Circuit Court of Appeals requires a four-part analysis ("Maupin test") when the State alleges a habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 464 (6^th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6^th Cir. 2010) (en banc); Eley v. Bagley, 604 F.3d 958, 965 (6^th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6^th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6^th Cir. 1986).

First the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule.

. . . .

Second, the court must decide whether the state courts actually enforced the state procedural sanction, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim.

Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under Sykes that there was "cause" for him to not follow the procedural rule and that he was actually prejudiced by the alleged constitutional error.

Maupin, 785 F.2d at 138. A habeas petitioner can overcome a procedural default by showing cause for the default and prejudice from the asserted error. Atkins v. Holloway, 792 F.3d 654, 657 (6^th Cir. 2015).

When an issue that could have been decided on direct appeal is omitted from that proceeding, Ohio's criminal res judicata doctrine prevents Ohio courts from later consideration of that issue. That doctrine, enunciated in State v. Perry, 10 Ohio St. 2d 175 (1967), has repeatedly been held to be "an adequate and independent state ground barring federal habeas review." Durr v. Mitchell, 487 F.3d 423, 432 (6^th Cir. 2007) (collecting cases). The Ohio courts have consistently enforced the rule. See, e.g., State v. Cole, 2 Ohio St. 3d 112 (1982); State v. Ishmail, 67 Ohio St. 2d 16 (1981).

One way to show excusing cause...