Bryant v. Warden

• Decision Date: 09 February 2015
• Docket Number: Case No. 1:13-cv-803
• Citation: Bryant v. Warden, Case No. 1:13-cv-803 (S.D. Ohio Feb 09, 2015)
• Parties: DERRICK BRYANT, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

DERRICK BRYANT, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

Case No. 1:13-cv-803

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

February 9, 2015

Black, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

Petitioner, an inmate in state custody at the Chillicothe Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.(Doc. 1).This matter is before the Court on respondent's motion to dismiss and petitioner's response in opposition.(Docs. 10, 13).

I.FACTUAL BACKGROUND

The Ohio Court of Appeals, Twelfth Appellate District, provided the following summary of the facts that led to petitioner's convictions and sentence:¹

{¶2} On December 1, 2010, appellant, an operator at Superior Environmental Solutions, Inc., called Chester Yeager, the owner of the company, asking for a raise.Yeager refused.Appellant then became upset and their conversation ended shortly thereafter.

{¶3} Approximately two hours later, appellant, who was not scheduled to work, entered Yeager's office while he was servicing a pressure washer with Ronald Crenshaw, appellant's direct supervisor.Appellant, who smelled of alcohol and exhibited bloodshot eyes, told Yeager he wanted to talk to him privately and ordered Crenshaw to leave.In response, Yeager told appellant that Crenshaw was not going to leave and that any issues he had could be discussed openly.According to Yeager's testimony, appellant became very angry and said "[y]ou will

talk to me, you will listen to me" before he exited from the office and left the building.

{¶4} Two to three minutes later, appellant returned to the office with a .30 caliber rifle.According to the evidence presented, appellant, blocking the only exit, then pointed the rifle at Yeager's head and said, "you are going to listen to me or I'm going to blow your f***ing brains out."Appellant then pointed the rifle at Crenshaw and said, "I don't really want to kill you, but if I have to, I will," before he"levered" the rifle causing a bullet to "kick" out of the chamber and fall to the floor.The standoff, which lasted approximately 20 minutes, ended after Crenshaw "bear hugged"appellant moving him out of the office, which ultimately resulted in appellant lowering his rifle and exiting the building.

{¶5}Appellant was later arrested and charged with, among other things, kidnapping in violation of R.C. 2905.01(A)(3) and felonious assault in violation of R.C. 2903.11(A)(2), both second-degree felonies that included firearm specifications.

(Doc. 10, Ex. 6, pp. 1-2).

II.PROCEDURAL HISTORY

State Trial Proceedings

On January 12, 2010, the Butler County, Ohio grand jury returned a three-count indictment charging petitioner with one count each of kidnapping, felonious assault, and having weapons while under disability.(Doc. 10, Ex. 1).The counts of kidnapping and felonious assault both included firearm specifications.Following a jury trial, petitioner was found guilty on all counts charged in the indictment.(Doc. 10, Ex. 2).Petitioner received a total aggregate prison sentence of ten years imprisonment in the Ohio Department of Corrections.(Id.).Petitioner received prison sentences of five years for his kidnapping conviction, three years for the firearm specification, and two years for the having weapons while under disability conviction.The trial court merged the felonious assault conviction with the kidnapping conviction for purposes of sentencing.(Id.).

Direct Appeal

On June 17, 2011, petitioner, through new counsel, filed a timely notice of appeal to the Ohio Court of Appeals.(Doc. 10, Ex. 3).Petitioner raised the following three assignments of error in his appellate brief:

1.The State presented insufficient evidence to convict Appellant of kidnapping in violation of R.C. 2905.01(A)(3) and felonious assault in violation of R.C. 2903.11(A)(2).

2.Appellant's convictions were against the manifest weight of the evidence.

3.The trial court erred by including in the sentencing entry a provision that it objected to Appellant's admission into transitional control prison.

(Doc. 10, Ex. 4).On February 21, 2012, the Ohio appeals court overruled petitioner's assignments of error and affirmed the judgment of the trial court.(Doc. 10, Ex. 6).Petitioner subsequently filed a pro se motion for reconsideration, which was denied by the appellate court.(Doc. 10, Ex. 7, 8).

Ohio Supreme Court

On April 25, 2012, petitioner, through counsel, filed a timely notice of appeal to the Ohio Supreme Court.(Doc. 10, Ex. 9).In his memorandum in support of jurisdiction, petitioner raised the following single proposition of law:

A trial court is prohibited from exercising its authority to disapprove of an intended transfer to transitional control before the adult parole authority provides notice of the court of that transfer.R.C. 2967.26(A)(2).

(Doc. 10, Ex. 10).Counsel for petitioner later filed an application for dismissal, indicating that petitioner"will be filing his own pro se notice of appeal, and a memorandum in support of jurisdiction."(Doc. 10, Ex. 12, p. 2).On May 7, 2012, the Ohio Supreme Court granted the application for dismissal and dismissed the case.(Doc. 10, Ex. 13).

Motion for Reconsideration/Reopening of Appeal

On May 22, 2012, petitioner filed a pro se motion for reconsideration/reopening of his direct appeal in the Ohio Court of Appeals.(Doc. 10, Ex. 14).Therein, petitioner argued that his appellate counsel was ineffective for failing raise the following four assignments of error on direct appeal:

1.Trial court erred to the Prejudice of Appellant in overruling his motion for acquittal and in entering a guilty verdict contrary The Appellant's right to due process under the fifth and fourteenth Amendment[s] to the United States ConstitutionandSection 10, article of the Ohio Constitution.

2.Due Process is Violate[d] on Appeal when Counsel Ineffectiveness For failure to address Trial Counsel['s] Ineffectiveness [for] Failure to timely move to suppress evidence.

3.Appellant's federal and state constitutional rights to due process and a fair trial were violated by prosecutorial misconduct.

4.Attorney failed to present mitigating circumstances as to the offense of kidnapping was clearly Ineffective Assistance of Counsel in Violation of the Sixth Amendment.

(Doc. 10, Ex. 14).Petitioner subsequently moved to supplement his Rule 26(B) application on two occasions.²(Doc. 10, Ex. 15, 16).On August 14, 2012, the Ohio Court of Appeals found no genuine issue as to whether petitioner was deprived of the effective assistance of counsel on appeal and denied his application to reopen.(Doc. 10, Ex. 17).

Petitioner timely appealed the denial of his application to reopen to the Ohio Supreme Court.(Doc. 10, Ex. 18).In his memorandum and amended memorandum in support of jurisdiction, petitioner set forth the following four propositions of law:

I.Can appellate attorney violate the rights to due process and equal protection on appeal to investigate and argue "allied offenses?"

II.Does an unloaded firearm satisfy the elements of operability to propel one or more projectiles by the action of an explosive or combustible propellant?

III.Is it a Sixth Amendment rights violation on appeal when legal instruction to appellate counsel regarding trial counsel's ineffectiveness for failing to investigate and not for filing a pre-trial motion to suppress prejudicial evidence from going before a jury?

IV.Is Appellant's federal and state constitutional rights to due process and to have a fair trial violated by prosecutorial misconduct?

(Doc. 10, Ex. 19, 20).On November 28, 2012, the Ohio Supreme Court dismissed the appeal "as not involving any substantial constitutional question."(Doc. 10, Ex. 22).

First Motion to Vacate and Set Aside the Judgment of Conviction

On December 3, 2012, petitioner filed a pro se motion and amended motion to vacate and set aside the judgment and conviction as void.(Doc. 10, Ex. 23, 24).Petitioner argued that his judgment was void because the trial court denied him the affirmative defense of abandonment and removed it from the jury instructions in violation of Ohio Rev. Code §§ 2901.05(D)(1)(B)and2923.02(D).(Id.).On December 19, 2012, the trial court construed the motion as post-conviction petition and denied petitioner's claims as being barred by the doctrine of res judicata.(Doc. 10, Ex. 26).

Petitioner appealed the denial of his motion to the Ohio Court of Appeals.(Doc. 10, Ex. 27).Petitioner argued that the trial court improperly construed his motion as a petition for post-conviction relief.(Doc. 10, Ex. 28).On June 3, 2013, the Ohio appeals court affirmed the judgment of the trial court.(Doc. 10, Ex. 30).The court also denied petitioner's motion for reconsideration.(Doc. 10, Ex. 31, 32).

On September 3, 2013, petitioner filed a notice of appeal and memorandum in support of jurisdiction to the Ohio Supreme Court.(Doc. 10, Ex. 33, 34).Petitioner raised the following proposition of law:

The trial court or the reviewing court is without subject-matter jurisdiction to refuse a claim of a void judgment by applying the doctrine of res judicata.In doing so the trial courts has denied the defendant due process of law.Criminal Rule 52: "The Plain Error Standard."Revised Code: 2901.05 (D)(1)(B) & 2923.02(D).

(Doc. 10, Ex. 34, p. 3).On November 20, 2013, the Ohio Supreme Court declined to accept jurisdiction of the appeal.(Doc. 10, Ex. 36).

Second Motion to Vacate and Set Aside the Judgment of Conviction

On May 24, 2013, during the pendency of the appeal of the denial of his first motion to vacate, petitioner filed a second motion to vacate and set aside the judgment of conviction.(Doc. 10, Ex. 37).In the motion, petitioner argued his conviction and sentence are void because they violate Ohio Rev. Code § 2941.25.On May 31, 2013, the trial court denied petitioner's motion as untimely.(Doc. 10, Ex....