Brown v. Smith

• Decision Date: 11 April 2014
• Docket Number: CASE NO. 3:11CV01750
• Court: U.S. District Court — Northern District of Ohio
• Parties: WILLIAM BROWN, JR., Petitioner, v. KEVIN SMITH, Respondent.

WILLIAM BROWN, JR., Petitioner, v. KEVIN SMITH, Respondent.

CASE NO. 3:11CV01750

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Date: April 11, 2014

PEARSON, J.

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND

ORDER [Resolving ECF No. 1]

Before the Court is pro se Petitioner William Brown, Jr.'s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Respondent Kevin Smith ("the State"), as the warden, filed a return of writ. ECF No. 7. Petitioner filed a traverse. ECF No. 9. United States Magistrate Judge Kenneth S. McHargh prepared a report and recommendations in accordance with 28 U.S.C. § 636(b)(1)(B), and recommended that the habeas petition be denied in part and dismissed in part. ECF No. 12. Petitioner timely filed objections to the report and recommendations. ECF No. 13. The Court has reviewed the above filings, the relevant portions of the record, and the governing law. For the reasons provided, the Court overrules Petitioner's objections, adopts the report and recommendations, and denies in part, and dismisses in part, the habeas petition.¹

I. Factual and Procedural History

A. State Trial

On the morning of July 24, 2008, Petitioner robbed a Fifth Third Bank in Bowling Green, Ohio. ECF No. 7-1 at 134. After a police pursuit in which Petitioner drove a stolen vehicle in excess of 100 miles per hour, Petitioner was captured and arrested. ECF No. 7-1 at 135. Petitioner was indicted in the Wood County, Ohio, Court of Common Pleas on charges of aggravated robbery, robbery, kidnapping, grand theft, grand theft of a motor vehicle, and failure to comply with the order or signal of a police officer. ECF No. 7-1 at 3-4. Petitioner pleaded not guilty and waived his right to a jury trial. ECF No. 7-1 at 6, 9. Following a two-day bench trial, the trial court found Petitioner guilty on all charges. ECF No. 7-1 at 11. In a judgment entry dated June 9, 2009, the trial court sentenced Petitioner to thirty-four years of incarceration. ECF No. 7-1 at 16.

B. Direct Appeal

On July 7, 2009, Petitioner, through counsel, timely filed a notice of appeal with the Ohio Court of Appeals, Sixth District. ECF No. 7-1 at 20. Petitioner raised eight assignments of error, including the claim that his trial counsel was ineffective. In regard to that claim, Petitioner argued that he would have accepted the State's ten year plea offer had his attorney informed him that there was a cutoff date for accepting the offer. ECF No. 7-1 at 59-60. On April 16, 2010, the Ohio Court of Appeals remanded the case to the trial court for the limited purpose of issuing a sentencing entry that conformed with post-release control notification requirements. ECF No. 7-1 at 161-62. The appeals court affirmed the trial court's judgment in all other respects. ECF No. 7-1 at 162.

On June 1, 2010, Petitioner, proceeding pro se, timely appealed to the Ohio Supreme Court. ECF No. 7-1 at 163. Among Petitioner's five propositions of law was the contention that he would have accepted the State's ten year plea offer had his attorney not failed to inform him that the State's offer had a cutoff date for acceptance. ECF No. 7-1 at 177. On September 29, 2010, the Ohio Supreme Court denied Petitioner leave to appeal and dismissed the appeal as not involving any substantial constitutional questions. ECF No. 7-1 at 237.

C. Post-conviction Proceedings

While the Ohio Court of Appeals was considering Petitioner's direct appeal, Petitioner, proceeding pro se, filed an untimely petition for post-conviction relief on February 22, 2010. ECF No. 7-1 at 238. Petitioner once again claimed that his trial counsel failed to inform him that the State's ten year plea offer had a cutoff date. ECF No. 7-1 at 239. On March 4, 2010, the trial court denied the petition because it was not filed in accordance with R.C. § 2953.21, that is, within 180 days after the date on which the trial transcript was filed with the Ohio Court of Appeals. ECF No. 7-1 at 246. The trial court also determined that Petitioner did not qualify under any of the exceptions to the time requirement. ECF No. 7-1 at 247. Petitioner did not appeal this decision.

D. Rule 26(B) Application to Reopen Appeal

On February 28, 2011, Petitioner, proceeding pro se, filed a "delayed" application to reopen his direct appeal pursuant to Ohio Appellate Rule 26(B). ECF No. 7-1 at 259. Petitioner asserted that his appellate counsel's "inadequate performance" compromised his appeal and caused his Rule 26(B) application to be untimely. ECF No. 7-1 at 259-60. The Ohio Court of Appeals denied the application on the ground of untimeliness. ECF No. 7-1 at 269. Petitioner failed to perfect a timelyappeal to the Ohio Supreme Court. On August 3, 2011, Petitioner filed an "emergency motion" with the Ohio Court of Appeals to vacate and re-enter its judgment on the Rule 26(B) application so that Petitioner could timely appeal to the Ohio Supreme Court. ECF No. 7-1 at 270. On August 29, 2011, the appeals court denied Petitioner's motion. ECF No. 7-1 at 277.

E. Federal Habeas Review

In a timely-filed petition for a writ of habeas corpus under 28 U.S.C. § 2254, Petitioner, proceeding pro se, presents to this Court the following nine grounds for habeas relief:

1. Trial counsel failed to secure a plea in a timely fashion. Ineffective assistance of counsel.

2. Trial counsel failed to inform the judge the morning before trial started of petitioner's plea bargain posture. Trial counsel was ineffective.

3. Trial counsel failed to inform the petitioner that if they waited until they got closer to trial in hopes of being offered a fairer plea before accepting the State's plea[, the] plea was not promised to be available the next day. Trial counsel was ineffective.

4. Ineffective assistance of trial counsel. Trial counsel failed to object and raise that the trial court committed plain error when they [sic] convicted petitioner of 3 F1 kidnappings when the victims were left in a safe place unharmed.

5. The trial court erred in convicting and sentencing the petitioner on the aggravated robbery and kidnapping counts in violation of the double jeopardy clause of the Fifth Amendment of the U.S. Constitution and Article 1, Section 10 of the Ohio Constitution and Ohio's multiple count statute.

6. The trial courts [sic] erred in following State v. Foster after the U.S. Supreme Court issued its ruling in Oregon v. Ice when the trial court imposed maximum, consecutive sentences upon the petitioner without making the required findings of fact.

7. The State's request for petitioner to be sentenced to consecutive sentences because petitioner was in a trial, violated petitioner's rights to due process under the 14^th Amendment to the U.S. Constitution, and Article 1, Sections 10 and 16 of the Ohio Constitution.

8. Trial counsel rendered ineffective assistance of counsel in violation of the 6^th Amendment to the U.S. Constitution and Article 1, Section 10, 16 of the Ohio Constitution. By [sic] failing to inform petitioner of there [sic] being a possible plea cutoff date. And [sic] for failing to be prepared during the sentencing hearing.

9. The trial court lacked jurisdiction to try the petitioner without a jury.

ECF No. 1 at 5-17.

The State filed a return of writ. ECF No. 7. Petitioner filed a traverse. ECF No. 9. United States Magistrate Judge Kenneth S. McHargh issued a report and recommendations in accordance with 28 U.S.C. § 636(b)(1)(B), in which he recommended that the habeas petition should be denied in part and dismissed in part (due to procedural default). ECF No. 12. Petitioner timely filed objections. ECF No. 13. Although Petitioner broadly states that he "objects to all adverse rulings in the Report and Recommendation"; ECF No. 13 at 1; Petitioner's objections, in substance, are directed only to the magistrate judge's rejection of his ineffective-assistance-of-trial-counsel claims respecting the State's plea offer. In particular, Petitioner maintains that his trial attorney failed to "properly advise [him] during pretrial conferences that there was a deadline to accept [the] State[']s plea" offer and the magistrate judge "wrongly assumed" that even had Petitioner been properly advised by trial counsel, he would not have accepted the offer sooner. ECF No. 13 at 1, 5.

II. Preliminary Rulings

The Court adopts, without further review, all of the magistrate judge's recommendations to which Petitioner did not specifically object. "A general objection to the entirety of the magistrate's report has the same effects as would a failure to object." Howard v. Secretary of Health & Human Services, 932 F.2d 505, 509 (6^th Cir. 1991). 28 U.S.C. § 636 does not require a district judge toreview a magistrate judge's report to which no objections are filed. Thomas v. Arn, 474 U.S. 140, 145, 106 S. Ct. 466, 88 L. Ed. 2d (1986). When proper objections are filed, the habeas court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636 (b)(1)(C). The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636 (b)(1)(C). Accordingly, the Court will confine its de novo review to the magistrate judge's recommendation that Petitioner's ineffective-assistance-of-trial-counsel claims, as they relate to the State's plea offer, do not merit the grant of habeas relief.

III. AEDPA Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court may not grant a petition for a writ of habeas corpus with respect to any claim that was decided on the merits in state court proceedings unless the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an...