Carley v. Hudson

• Citation: 563 F.Supp.2d 760
• Decision Date: 30 May 2008
• Docket Number: No. 1:06 CV 922.,1:06 CV 922.
• Parties: Richard CARLEY, Pro Se, Petitioner v. Stuart HUDSON, Respondent.
• Court: U.S. District Court — Northern District of Ohio

563 F.Supp.2d 760

Richard CARLEY, Pro Se, Petitioner v. Stuart HUDSON, Respondent.

No. 1:06 CV 922.

United States District Court, N.D. Ohio, Eastern Division.

May 30, 2008.

COPYRIGHT MATERIAL OMITTED

Richard E. Carley, Mansfield, OH, pro se.

Hilda Rosenberg, Office of the Attorney General, Cincinnati, OH, for Respondent.

ORDER

SOLOMON OLIVER, JR., District Judge.

On April 17, 2006, Petitioner Richard Carley ("Petitioner" or "Carley"), pro se, filed a Petition for Writ of Habeas Corpus ("Petition," ECF No. 1), pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his state court conviction¹ for six counts of aggravated murder with felony murder, mass murder, and firearm specifications. (Resp't's Ex. 5, ECF No. 18-26.) In his Petition, Carley alleged five grounds for relief: ineffective assistance of trial counsel and unknowing and involuntary guilty plea; prosecutorial misconduct; and three grounds of ineffective assistance of appellate counsel. (Petition at 8.)

This court referred the case to Magistrate Judge Nancy A. Vecchiarelli for preparation of a Report and Recommendation. (ECF No. 11.) On April 27, 2005, the Magistrate Judge granted Petitioner's Motion to Amend Habeas Petition (Order, ECF No. 15), adding a sixth ground for relief, which alleged that Petitioner's sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). (ECF No. 9.) On August 16, 2007, Respondent Stuart Hudson, the Warden of the Mansfield Correctional Institution ("Respondent" or "Hudson") filed his Return of Writ. (ECF No. 18.) Petitioner filed his Traverse on August 31, 2007. (ECF No. 21.)

On December 5, 2007, the Magistrate Judge submitted her Report and Recommendation on April 15, 2008, recommending that Carley's Petition be dismissed. (ECF No. 27.) Specifically, the Magistrate Judge made the following findings: (1) ground one was meritless because Carley waived his claim to ineffective assistance of trial counsel and he failed to show that his guilty plea was unknowing or involuntary; (2) ground two was meritless because Carley waived his prosecutorial misconduct claim when he pled guilty; (3) grounds three, four, and five were procedurally defaulted; and (6) ground six is meritless because Apprendi and Blakely are inapplicable where Carley agreed to a sentence. as part of a plea agreement, and because Carley waived the right to appeal his sentence by entering into a plea agreement. (Id.)

Petitioner's objections to the Report and Recommendation were initially due on April 29, 2008. On April 28, 2008, the court granted Petitioner a 30-day extension of time to file objections. (Order [non-document].) Due to the Memorial Day holiday, Petitioner's objections were due May 29, 2008. As of the date of this Order, Petitioner has not filed any objections to the Report and Recommendation. By failing to do so, he has waived the right to appeal the Magistrate Judge's recommendation. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

The court finds, after careful review of the Magistrate Judge's Report and Recommendation and all other relevant documents, that the Magistrate Judge's conclusions are fully supported by the record and controlling case law. Accordingly, the court adopts as its own the Magistrate Judge's Report and Recommendation. (ECF No. 27.)

Consequently, Carley's Petition (ECF No. 1) is hereby denied, and final judgment is entered in favor of Respondent. The court further certifies that pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. RApp. P. 22(b).

IT IS SO ORDERED.

REPORT & RECOMMENDATION

NANCY A. VECCHIARELLI, United States Magistrate Judge.

This matter is before the undersigned Magistrate Judge pursuant to Local Rule 72.2. Petitioner, Richard E. Carley, ("Carley"), challenges the constitutionality of his conviction in the case of State v. Carley, Case No. CR 97-355976. Carley, pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 17, 2006 in the United States District Court for the Northern District of Ohio. (Doc. No. 1.) For the reasons set forth below, the Magistrate Judge recommends that the Petition (Doc. No. 1) be DENIED.

I. Procedural History

A. Conviction and Sentence

The September term of the Cuyahoga County Grand Jury indicted Carley on two counts of aggravated murder as defined by Ohio Revised Code § 2903.01(A) (murder committed with prior calculation or design), each with a one-year fire arm specification, a three-year firearm specification, a mass murder specification, and a felony murder specification (Counts 1 and 2); two counts of aggravated murder as defined in Ohio Rev.Code § 2903.01(B) (felony murder), each with a one-year fire arm specification, a three-year firearm specification, a mass murder specification, and a felony murder specification (Counts 3 and 4); two counts of aggravated robbery as defined in Ohio Rev.Code § 2911.01, each with a one-year fire arm specification and a three-year firearm specification (Counts 5 and 6); and one count of obstructing justice as defined in Ohio Rev.Code § 2921.32 (Count 7).

At an arraignment held October 23, 1997, Carley pleaded not guilty. (Doc. No. 18, Ex. 2.) On February 25, 1998, before a three-judge panel and pursuant to a plea agreement, Carley changed his plea to guilty to aggravated murder with felony murder and mass murder specifications on Counts 3 and 4. (Doc. No. 18, Ex. 3.) The panel nolled the remaining counts, and sentenced Carley to two concurrent terms of life imprisonment without parole until thirty years served. (Id.)

On September 14, 2000, the Court of Appeals of Ohio reversed the judgment of the trial court and remanded the case for further proceedings on the ground that the trial court panel lacked jurisdiction to consider Carley's plea because Carley did not sign a waiver of his right to a jury trial as required by Ohio Rev.Code §§ 2945.05-2945.06. (Id., Ex. 4.)

A jury trial was held; and on January 24, 2002, the jury found Carley guilty of aggravated murder with felony murder, mass murder, and three-year firearm specifications (Counts 1 and 2); guilty of aggravated murder with felony murder and mass murder specifications (Counts 3 and 4); and guilty of aggravated robbery with a three-year firearm specification (Counts 5 and 6). (Doc. No. 18, Ex. 5.)

On February 6, 2002, prior to the mitigation hearing, Carley entered into a plea agreement pursuant to which he pleaded guilty to two counts of murder with three-year firearm specifications. (Doc. No. 18., Ex. 6.) The state agreed to eliminate the possibility of the death penalty by deleting the mass murder and felony murder specifications. (Doc. No. 18., Ex. 49, Tr. at 2022.) The plea agreement included an agreed sentence of two consecutive fifteen-year to life terms and a consecutive term of three years on the firearm specifications. (Doc. No. 18, Ex. 49, Tr. at 2021-31, 2038-39.) The Court sentenced Carley to the agreed term of thirty-three years to life.

B. Direct Appeal

On March 12, 2002, Carley filed an appeal in the Court of Appeals of Ohio ("state appellate court"), raising the following assignments of error:

1. Trial counsel was ineffective under the Sixth and Fourteenth Amendments of the U.S. Constitution and the appellant's guilty pleas was not knowingly and voluntarily made.

2. Prosecutorial misconduct deprived appellant of a fair trial in violation of the Fourteenth Amendment.

(Doc. No. 18, Ex. 10.) On April 15, 2004, the Court of Appeals affirmed the judgment of the trial court.

On May 24, 2004, Carley appealed to the Supreme Court of Ohio, raising the same assignments of error. On September 1, 2004, the Supreme Court of Ohio denied Carley leave to appeal and dismissed the appeal as not involving any substantial constitutional question. (Doc. No. 18, Ex. 20.)

C. Application to Reopen Appeal

On July 12, 2004, Carley filed an application to reopen his appeal pursuant to Ohio Appellate Rule 26(B), raising the following assignments of error:

1. The appellant was denied the effective assistance of appellate counsel in violation of his Fourteenth Amendment rights under the United States Constitution and Article I, Section 10 of the Ohio Constitution for counsel's failure to raise the issue that the trial court abused its discretion when it failed to dismiss his case for lack of speedy trial making his guilty plea involuntary.

2. The appellant was denied the effective assistance of appellate counsel in violation of his Fourteenth Amendment rights under the United States Constitution and Article I, Section 10 of the Ohio Constitution for counsel's failure to raise the issue that the trial court abused its discretion when sentencing appellant to consecutive sentences without giving adequate reasons for the sentence.

3. The appellant was denied the effective assistance of appellate counsel in violation of his Fourteenth Amendment rights under the United States Constitution and Article I, Section 10 of the Ohio Constitution for counsel's failure to raise the issue that the appellant's guilty plea was involuntary and unknowingly made because of jury misconduct.

(Doc. No. 18, Ex. 21.) The state appellate court denied the application on the ground that Carley's. claims were barred by the doctrine of res judicata, and alternatively, that Carley's claims lacked merit. (Doc. No. 18, Ex. 23.)

On November 15, 2004, Carley filed a notice of appeal in the Supreme Court of Ohio, raising the same claims he raised in his application to reopen. (Doc. No. 18, Ex. 24, 25.) The Supreme Court of Ohio dismissed the appeal as not involving any substantial constitutional...