Chester v. Bobby, CASE NO. 2:10-CV-00402

• Decision Date: 31 July 2013
• Docket Number: CASE NO. 2:10-CV-00402
• Parties: NORMAN D. CHESTER, JR., Petitioner, v. DAVID BOBBY, WARDEN, Respondent.
• Court: U.S. District Court — Southern District of Ohio

NORMAN D. CHESTER, JR., Petitioner,

v.DAVID BOBBY, WARDEN, Respondent.

CASE NO. 2:10-CV-00402

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

July 31, 2013

JUDGE SMITH

MAGISTRATE JUDGE ABEL

REPORT AND RECOMMENDATION

Petitioner Norman D. Chester, Jr., a state prisoner, brings this action for a writ of habeas corpus under 28 U.S.C. § 2254. This matter is before the magistrate judge on the Petition, Respondent's Return of Writ, Petitioner's Traverse, and the exhibits of the parties. For the reasons that follow, the magistrate judge RECOMMENDS that the petition for writ of habeas corpus be DENIED.

FACTS and PROCEDURAL HISTORY

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

Norman D. Chester, defendant-appellant, appeals from a judgment of the Franklin County Court of Common Pleas, in which the court found him guilty, pursuant to a jury verdict, of aggravated burglary without specification, in violation of R.C. 2911.11, which is a felony of the first degree; felonious assault without specification, in violation of R.C. 2903.11, which is a felony of the second degree; two counts of kidnapping without specification, in violation of R.C. 2905.01, which are felonies of the first degree; aggravated robbery without specification, in violation of R.C. 2911.01, which is a felony of the first degree; robbery without specification, in violation of R.C. 2911.02, which is a felony of the second degree; and robbery without specification, in violation of R.C. 2911.02, which is a felony of the third degree.

Appellant met the victim, Jelisa James, in a Columbus psychiatric hospital, and the two became friends. After both appellant and James were released, they started dating, and they eventually lived together. The relationship was turbulent, and James moved in with her mother, Norma Hudson. Appellant persistently telephoned James, sent her angry and threatening e-mails, and showed up at her home uninvited.

On September 19, 2006, Hudson arrived home, where appellant was waiting inside. Appellant stabbed Hudson in the face with a knife and bound her in the bedroom. Appellant told Hudson he was going to drown James and cut off James' head, and said he had already filled the bathtub with water. James eventually arrived at the home, at which point appellant threatened her with a knife. Appellant made James tie her mother to a chair in the bedroom, and then appellant made James take off all of her clothes before tying her to another chair. Appellant made Hudson use her credit cards to wire him money, and, the following morning, appellant took Hudson and James to several grocery stores and a Western Union store to retrieve money, but the money had already been transferred. Appellant had James and Hudson drop him off at a house, and James and Hudson went to the hospital and eventually contacted police.

Appellant was subsequently apprehended and questioned by police, at which time he made a statement. Appellant was indicted for aggravated burglary, felonious assault, two counts of kidnapping, aggravated robbery, and two counts of robbery. Appellant filed a motion to suppress statements made to the police, which the trial court denied after a hearing on November 27, 2007. After the motion hearing, the case proceeded to a jury trial. The jury found appellant guilty on all counts as charged in the indictment but without the specifications. On December 3, 2007, for purposes of sentencing, the trial court merged the robbery counts into the aggravated robbery count, and sentenced appellant to maximum, consecutive prison sentences on the five counts, for a total sentence of 48 years. Appellant appeals the judgment of the trial court, asserting the following three assignments of error and one supplemental assignment of error, which we will refer to as his fourth assignment of error:

[I.] THE TRIAL COURT ERRED BY REQUIRING THE DEFENDNAT TO APPEAR BEFORE THE JURY WHILE SHACKLED IN ORDER TO DELIVER HIS OWN TESTIMONY[.]

[II.] THE TRIAL COURT ERRED IN OVERRULING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS HIS ORAL STATEMENTS[.]

[III.] DEFENDANT-APPELLANT WAS NOT AFFORDED THE EFFECTIVE ASSISTANCE OF COU [N]SEL[.]

[IV.] THE TRIAL COURT ERRED BY SENTENCING DEFENDANT-APPELLANT UPON COUNTS 5, 6 AND 7 WHEN THOSE COUNTS ALLEGED NO MENTAL ELEMENT.

State v. Chester, No. 08AP-1, 2008 WL 5265860. at *1-2 (Ohio App. 10th Dist. Dec. 18, 2008). On December 18, 2008, the appellate court overruled Petitioner's first, second, and third assignments of error, sustained in part and overruled in part his fourth assignment of error, affirming in part and reversing in part the judgment of the state trial court and remanding the case to the trial court.¹ The trial court nullified Petitioner's robbery conviction pursuant to the remand of the Ohio Court of Appeals; however, the trial court previously had merged Petitioner's convictions on count seven with count five, so Petitioner's aggregate sentence remained the same. See Exhibit 15 to Return of Writ. On April 22, 2009, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Chester, 121 Ohio St.3d 1454 (2009).

On March 18, 2009, Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). On May 19, 2009, the appellate court denied Petitioner's Rule 26(B) application. Petitioner did not file an appeal to the Ohio Supreme Court.

On May 5, 2010, Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that he is being held in violation of the Constitution of the United States based upon the following grounds:?

1. Denial of effective assistance of counsel.

Trial counsel was ineffective on (5) five grounds. Trial counsel met with prosecutor and judge outside of Petitioner's presence, and asserted that Petitioner may cause outburst at trial, this resulted in Petitioner being hand cuffed and shackled without a hearing throughout trial. . . . Trial counsel allowed trial court to depose the testimony of private investigator Bob Britt. Trial counsel failed to subpoena lead detective Eric Wooten. Trial counsel brought in co-counsel whom Petitioner had never met (Karen Phipps). . . co-counsel cross examined the State's star witness, without having prior knowledge of the case. . . . Co-counsel's performance was lackluster and severely damaged Petitioner's chances of acquittal. Trial counsel did nothing to ensure jury did not see the extra restraints.

2. Trial court abused its discretion in ordering Petitioner to wear hand-cuffs and shackles while in presence of jury without holding a hearing.

Petitioner was ordered to wear both handcuffs and shackles throughout the trial without ever having caused any problems or having a hearing to determine the necessity of the extra restraints. Appellate court used harmless error analysis but it is clear [that] due process was violated when no hearing was granted prior to this action being granted. . . .

3. Conviction obtained by use of coerced confession.

Police tactics were successful in psychologically overbearing Petitioner's will. Petitioner was reticent from the beginning of the interview, stating he would not speak or sign anything until interviewer spoke with a homicide detective Petitioner personally knew. Petitioner continued to say no even after Miranda warning was given.

4. Conviction obtained by use of defective indictment.

Petitioner was indicted and later found guilty of counts (6) six, and (7) seven, robbery 2911.02 O.R.C., which allowed no mensrea element of a crime. The error is structural and was raised for the first time on direct appeal. Appellate court reversed conviction on counts (6) and (7) and remanded those two counts back to common pleas court. Appellant would argue that the defect affected the entire framework. . . being an error of the trial process itself. The instructions to the jury also failed to include a mens rea which should [have] resulted in a mistrial, or complete reversal on the appellate level.

It is the position of the Respondent that Petitioner's claims are without merit or procedurally defaulted.

PROCEDURAL DEFAULT

In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the petitioner fails to do so, but the state still provides a remedy to pursue, his or her petition is subject to dismissal for failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S. 722, 731 (1991); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of a procedural default, the petitioner can no longer present the relevant claims to a state court, the petitioner also waives the claims for purposes of federal habeas review unless he or she can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 724; Murray v. Carrier, 477 U.S. 478,485 (1986).

In the Sixth Circuit, a court must undertake a four-part analysis to determine whether procedural default is a bar to a habeas petitioner's claims. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); see also Scuba v. Brigano, 259 F. App'x. 713, 718 (6th Cir. 2007) (following thefour-part analysis of Maupin). Specifically, the United States Court of Appeals for the Sixth Circuit requires the district courts to engage in the following inquiry:

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

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