Castor v. Warden, Case No. 2:16-cv-0050

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtMagistrate Judge King
PartiesGEORGE A. CASTOR, JR., Petitioner, v. WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.
Decision Date13 April 2017
Docket NumberCase No. 2:16-cv-0050

GEORGE A. CASTOR, JR., Petitioner,
v.
WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

Case No. 2:16-cv-0050

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

April 13, 2017


JUDGE MICHAEL H. WATSON
Magistrate Judge King

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 3), Respondent's Return of Writ (ECF No. 8), Petitioner's Traverse (ECF No. 11), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Facts and Procedural History

The Ohio Fifth District Court of Appeals summarized the facts and procedural history of the case as follows:

On October 29, 2013, the Delaware County Grand Jury indicted appellant, George Castor, on forty-two counts involving burglaries (R.C. 2911.12), possession of criminal tools (R.C. 2923.24), theft (R.C. 2913.02), and receiving stolen property (R.C. 2913.51). Thirty-one of the counts occurred in Franklin County and the remaining eleven occurred in Delaware County.

A jury trial commenced on November 12, 2013. At the conclusion of the state's case-in-chief, the prosecutor dismissed five counts and amended others. The jury found appellant not guilty of one of the burglary counts, and guilty of thirty-six counts, to wit: twelve counts of burglary in the second degree, eight counts of burglary in the third degree, one count of attempting to commit burglary in the

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fourth degree, two counts of possessing criminal tools in the fifth degree, one count of theft in the fourth degree, and twelve counts of receiving stolen property, six in the fifth degree and six misdemeanors in the first degree. By amended judgment entry filed December 20, 2013, the trial court merged some of the counts and sentenced appellant to an aggregate term of thirty-four years in prison.

Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:

I

"R.C. 2901.12(H) VIOLATES THE OHIO CONSTITUTION, ARTICLE I, SECTION 10, AND THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION BY ALLOWING FOR A JURY TRIAL IN A COUNTY OTHER THAN THAT IN WHICH THE OFFENSE WAS COMMITTED."

II

"APPELLANT WAS DEPRIVED OF HIS RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE I, SECTION 10, BECAUSE COUNSEL FAILED TO ARGUE THAT THE VENUE STATUTE WAS UNCONSTITUTIONAL."

III

"VENUE WAS NOT PROPER IN DELAWARE COUNTY FOR COUNTS ONE THROUGH THIRTY-ONE BECAUSE THE EVIDENCE FAILED TO SHOW A UNIFYING COURSE OF CRIMINAL CONDUCT AS REQUIRED BY R.C. 2901.12(H)."

IV

"APPELLANT'S RIGHTS TO DUE PROCESS UNDER THE STATE AND FEDERAL CONSTITUTIONS WERE VIOLATED BY THE USE OF AN EYEWITNESS IDENTIFICATION DERIVED FROM AN IMPERMISSIBLY SUGGESTIVE PHOTOGRAPHIC LINEUP."

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State v. Castor, No. 14 CAA 01 0004, 2014 WL 6648987, at *1 (Ohio App. 5th Dist. Nov. 24, 2014). On November 24, 2014, the appellate court affirmed the judgment of the trial court. Id. On April 29, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Castor, 142 Ohio St.3d 1452 (2015).

On February 18, 2015, Petitioner filed a motion for extension of time to file an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Motion for Extension of Time to File under APP.R. 26(B) (ECF No. 8-1, PageID# 271). On March 25, 2015, the appellate court granted that motion, but gave Petitioner until March 24, 2015, to file the Rule 26(B) application. Judgment Entry (PageID# 272). On April 10, 2015, Petitioner filed a delayed Rule 26(B) application. Appellant's Delayed Application for Reopening (PageID# 273). On April 28, 2015, the appellate court denied the motion because it was untimely and because the court lacked jurisdiction to entertain the application due to Petitioner's pending appeal in the Ohio Supreme Court. Judgment Entry (PageID# 293). On May 4, 2015, Petitioner filed a motion for a stay. Motion for Stay of Proceedings (PageID# 294). On June 15, 2015, the appellate court denied that motion. Judgment Entry (PageID# 306). Petitioner filed a timely appeal from that decision to the Ohio Supreme Court which, on August 26, 2015, declined to accept jurisdiction of the appeal. State v. Castor, 143 Ohio St.3d 1447 (2015).

Petitioner filed this action on January 19, 2016. He alleges that he is being held in violation of his right to proper venue (claim one); that he was denied the effective assistance of trial counsel because his attorney failed to challenge the constitutionality of O.R.C. § 2901.12(H) (claim two); that the State failed to present sufficient evidence to establish a unifying course of conduct for trying Counts One through Thirty-One in Delaware, Ohio (claim three); that he was convicted as a result of an impermissibly suggestive photo array (claim four); that he was denied

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the effective assistance of appellate counsel (claim five); that the evidence is constitutionally insufficient to sustain his convictions (claim six); that the trial court improperly imposed sentences of "mandatory time" (claim seven); that he was denied his right to a fair and impartial jury because one of the jurors kept falling asleep during trial (claim eight); and that he was denied the effective assistance of trial counsel because his attorney failed to request a mistrial or the seating of an alternate juror based on a juror falling asleep during trial (claim nine). Respondent contends that Petitioner's claims are procedurally defaulted or without merit.

Procedural Default

Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, however, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims must first present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has failed to exhaust his claims but would find those claims barred if later presented to the state courts, "there is a procedural default for purposes of federal habeas. . . ." Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).

The term "procedural default" has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the

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course of the trial or the appeal before a federal court intervenes in the state criminal process. This "requires the petitioner to present 'the same claim under the same theory' to the state courts before raising it on federal habeas review." Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of "fairly presenting" a claim to the state courts is that a habeas petitioner must do so in a way that gives the state courts a fair opportunity to rule on the federal law claims being asserted. That means that, if the claims are not presented to the state courts in the way in which state law requires, and the state courts therefore do not decide the claims on their merits, neither may a federal court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), "contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure" also cannot be resolved on their merits in a federal habeas case-that is, they are "procedurally defaulted."

In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is waived by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th 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." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined 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 that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This

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"cause and prejudice" analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).

Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Constitutionally ineffective counsel may constitute cause sufficient to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an...

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