Clinton v. Cook

• Decision Date: 01 February 2018
• Docket Number: Civil Action No. 2:16-cv-0573
• Parties: MARVIN CLINTON, Petitioner, v. BRIAN COOK, WARDEN, Respondent.
• Court: U.S. District Court — Southern District of Ohio

MARVIN CLINTON, Petitioner, v. BRIAN COOK, WARDEN, Respondent.

Civil Action No. 2:16-cv-0573

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

February 1, 2018

Chief Judge Edmund A. Sargus, Jr.

Magistrate Judge Chelsey M. Vascura

ORDER and REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Court now terminates the stay in this case and reinstates proceedings, and it is RECOMMENDED that this action be DISMISSED.

I. Facts and Procedural History

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the state criminal case against Petitioner as follows:

Marvin D. Clinton is appealing from his conviction for murder with a firearm specification and repeat violent offender specification. His appointed counsel has filed a brief which contains six assignments of error. Clinton has filed a supplemental brief pro se which contains two assignments of error.

The assignments of error in counsel's brief are:

[I.] Appellant was denied a fair trial by the introduction of inflammatory, irrelevant, inherently prejudicial testimony.

[II.] The trial court erred by admitting expert opinion testimony contrary to the Ohio Rules of Evidence.

[III.] R.C. 2929.14(B)(2)(a) and 2941.149 violate the right to trial by jury guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution.

[IV.] The trial court committed plain error by sentencing Appellant as a repeat violent offender without making the findings required by R.C. 2929.14(B)(2)(a).

[V.] The judgment of the trial court is not supported by sufficient, credible evidence.

[VI.] The judgment of the trial court is against the manifest weight of the evidence.

Clinton's assignments of error are:

APPELLANT'S RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED HIM UNDER THE UNITED STATES CONSTITUTION'S SIXTH AMENDMENT AND ARTICLE I SEC. 10 OF THE OHIO CONSTITUTION WAS VIOLATED WHEN HIS TRIAL COUNSEL FAILED TO PERFORM IN A MANNER CONSISTENT WITH HIS DUTIES AS COUNSEL.

APPELLANT'S RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED HIM UNDER THE UNITED STATES CONSTITION [sic] SIXTH AMENDMENT AND ARTICLE 1 SEC. 10 OF THE OHIO CONSTITUTION WAS VIOLATED WHEN HIS TRIAL COUNSEL FAILED TO PRESENT A DEFENSE IN SUPPORT OF APPELLANT'S RIGHTS TO A FAIR TRIAL.

There is no dispute that someone shot and killed Kelsey Ray Ellis on December 18, 2010. Clinton denied being the shooter. The primary issue at the jury trial centered on the proof of the identity of the shooter and the jurors were convinced beyond a reasonable doubt that Clinton was the shooter. The jury therefore rendered guilty verdicts as to murder with a firearm specification and as to tampering with evidence.

Because of Clinton's past criminal record, he was also charged with having a weapon under disability ("WUD") and with a repeatviolent offender specification ("RVO"). The WUD charge and RVO were tried to the judge who presided over the trial in order to avoid the potential of the jury being influenced by Clinton's past criminal record. The judge found Clinton guilty of both and sentenced him in accord with his findings.

State v. Clinton, No. 13AP-751, 2014 WL 6436228, at *1 (Ohio App. 10th Dist. Nov. 18, 2014). The appellate court affirmed the judgment of the trial court. Id. On May 20, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Clinton, 142 Ohio St. 3d 1466 (2015). On August 19, 2014, Petitioner filed a petition for post-conviction relief in the state trial court. He asserted that he was denied the effective assistance of counsel because his attorney failed to call defense witnesses, failed to consult with Petitioner regarding the insanity defense, and failed to obtain potential exculpatory DNA evidence from cigarette butts that were found at the scene. (ECF No. 12-1, PAGEID ##337-339). On May 17, 2016, the trial court granted Petitioner's motion for funds for a DNA expert, and appointed a DNA expert. (ECF No. 12-1, PAGEID #507). Apparently, that action remains pending in the state trial court. On March 4, 2015, Petitioner filed a pro se application for reopening of the appeal pursuant to Ohio Appellate Rule 26(B). (PAGEID #396). On March 26, 2015, the appellate court denied the Rule 26(B) application. (PAGEID #438). On June 24, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. (PAGEID #472).

On June 22, 2016, Petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that he was denied the effective assistance of appellate counsel (claim one); and that the evidence was constitutionally insufficient to sustain his convictions (claim two). Petitioner also appears to assert, in habeas corpus claim two, that he was denied the effective assistance of counsel because his attorney failed to object to the admission of inflammatory and irrelevant testimony, failed to call defense witnesses, and failed to presentexculpatory DNA evidence. Respondent contends that Petitioner's claims are procedurally defaulted or without merit.

On June 27, 2017, the Court granted Petitioner's request for a stay of proceedings pending completion of Petitioner's post-conviction remedy in the state courts. Order (ECF No. 20.) However, the docket reflects that no further action has occurred since the trial court's approval of funds for the appointment of a defense DNA expert. (ECF No. 23-1, PAGEID #1682). Moreover, all of Petitioner's claims for the denial of the effective assistance of counsel plainly lack merit. A stay of proceedings is not warranted where the Petitioner's unexhausted claims are plainly meritless. See Rhines v. Weber, 544 U.S. 269, 277 (2005). Section 2254(b)(2) provides that "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." Therefore, the Court terminates the stay and reinstates proceedings in this case.

II. Standard of Review

Because Petitioner seeks habeas relief under 28 U.S.C. § 2254, the standards of the Antiterrorism and Effective Death Penalty Act ("the AEDPA") govern this case. The United State Supreme Court has described AEDPA as "a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court" and emphasized that courts must not "lightly conclude that a State's criminal justice system has experienced the 'extreme malfunction' for which federal habeas relief is the remedy." Burt v. Titlow, 134 S. Ct. 10, 16 (2013) (quoting Harrington v. Richter, 562 U.S. 86 (2011)); see also Renico v. Lett, 559 U.S. 766, 773 (2010) ("AEDPA ... imposes a highly deferential standard for evaluating state-court rulings, and demands that state court decisions be given the benefit of the doubt") (internal quotation marks, citations, and footnote omitted).

The AEDPA limits the federal courts' authority to issue writs of habeas corpus and forbids a federal court from granting habeas relief with respect to a "claim that was adjudicated on the merits in State court proceedings" unless the state court decision either

(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 unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Further, under the AEDPA, the factual findings of the state court are presumed to be correct:

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1)

Accordingly, "a writ of habeas corpus should be denied unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented to the state courts." Coley v. Bagley, 706 F.3d 741, 748 (6th Cir.) (citing Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006)), cert. denied sub. nom. Coley v. Robinson, 134 S. Ct. 513 (2013) . The United States Court of Appeals for the Sixth Circuit has summarized these standards as follows:

A state court's decision is "contrary to" Supreme Court precedent if (1) "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law[,]" or (2) "thestate court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405[] (2000). A state court's decision is an "unreasonable application" under 28 U.S.C. § 2254(d)(1) if it "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case" or either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context. Id. at 407 [].

Id. at 748-49. The burden of satisfying the AEDPA's standards rests with the petitioner. See Cullen v. Pinholster, 563 U.S.170, 181 (2011).

III. Insufficiency of the Evidence

Petitioner asserts that the evidence is constitutionally insufficient to sustain his convictions because, he contends, evidence failed to establish he was engaged in an...