Cobb v. Warden, Case No. 1:08cv896.
| Decision Date | 02 March 2011 |
| Docket Number | Case No. 1:08cv896. |
| Parties | Santravis COBB, Petitioner,v.WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION TEXT STARTS HERE
Claire Roxanne Cahoon, Office of the Ohio Public Defender, Columbus, OH, for Petitioner.Erin C. Reed, Office of the Ohio Attorney General, Samuel Clifford Peterson, Columbus, OH, for Respondent.
This matter is before the Court on Magistrate Judge Timothy S. Hogan's January 15, 2011, Report and Recommendation (“R & R”) (Doc. 12),1 which recommends denial with prejudice of Petitioner's habeas-corpus action under 28 U.S.C. § 2254. In addition, Magistrate Judge Hogan recommends that Petitioner be granted a certificate of appealability with regards to both grounds for relief alleged in the petition and leave to appeal in forma pauperis. (Doc. 12, 24.)
Proper notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the R & R in a timely manner. United States v. Walters, 638 F.2d 947, 949–50 (6th Cir.1981). Petitioner filed objections to the R & R. (Doc. 17.) For the reasons provided below, the Court ADOPTS the magistrate judge's R & R in its entirety.
The full history of this case is set forth in Respondent's Answer/Return of Writ. (Doc. 5.) Thus, the Court will provide only a brief summary here.
In March 2006, Petitioner was indicted on multiple drug offenses. In April 2006, Petitioner was arraigned and assigned appointed counsel. In May, on the morning of the scheduled trial, Petitioner moved to substitute privately retained counsel, who asked that he be allowed to appear on Petitioner's behalf and that the court continue the trial. The prosecutor opposed the continuance, and the trial court ultimately denied Petitioner's motion after hearing arguments from both sides. Petitioner then entered into negotiations that resulted in a no contest plea and a sentence of two ten-year prison terms to be served consecutively.
Petitioner appealed his conviction, setting forth two assignments of error. Petitioner argued that the trial court erred by not permitting his privately retained counsel to represent him at trial and by sentencing him to consecutive rather than simultaneous prison terms. The court of appeals denied Petitioner's appeal. Petitioner, pro se, appealed, and the Ohio Supreme Court dismissed his appeal finding that it lacked any substantial constitutional question.
In June 2007, while the direct appeal was pending with the Ohio Supreme Court, Petitioner filed an application for reopening with the appellate court under Ohio Rules of Appellate Procedure 26(B), alleging ineffective assistance of counsel. In May 2008, Petitioner filed an additional application for reopening under Ohio App. R. 26(A) after the appellate court denied the 26(B) motion. Petitioner failed to file a timely appeal to the court of appeal's denial of his App. R. 26(B) motion for reconsideration. In June 2008, the appeals court denied the App. R. 26(A) delayed application, and, in August 2008, the Supreme Court declined to exercise jurisdiction over the subsequent appeal after finding that it lacked any substantial constitutional question.
Petitioner then brought this habeas-corpus action under 28 U.S.C. § 2254.
Federal Rule of Civil Procedure 72 provides that a district judge shall consider a party's objections to a magistrate's order on non-dispositive matters and “shall modify or set aside any portion of the magistrate's order found to be clearly erroneous or contrary to law.” Fed.R.Civ.P. 72(a). The clearly erroneous standard Bank One Columbus, Ohio, N.A. v. First Fin. Ventures, LLC, No. 2:01–CV–0049, 2001 WL 840310, at *3 (S.D.Ohio July 5, 2001) ( quoting Farley v. Farley, 952 F.Supp. 1232, 1235 (M.D.Tenn.1997)).
When objections are received to a magistrate judge's report and recommendation on a dispositive matter, the assigned district judge “must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). After review, the district judge “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.; see also 28 U.S.C. § 636(b)(1)(B). General objections are insufficient to preserve any issues for review; “[a] general objection to the entirety of the magistrate's report has the same effects as would a failure to object.” Howard v. Sec. of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.1991).
Petitioner asserts that the conviction deprived him of his Sixth Amendment right to counsel of his own choosing. In his objections (Doc. 17), Petitioner asserts that Magistrate Judge Hogan failed to analyze United States v. Gonzalez–Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), as the binding precedent in his case and failed to take appropriate judicial notice of the Ohio appellate court's insufficient methodology under Saldivar–Trujillo, 380 F.3d 274 (6th Cir.2004). (Doc. 17, 3–4.) Petitioner's objections are not well taken.
A state court's decision is contrary to clearly established law if it applies a rule that contradicts the governing law set forth in Supreme Court cases or if it confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from this precedent. Mitchell v. Esparza, 540 U.S. 12, 15–16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam) ( citing Williams v. Taylor, 529 U.S. 362, 405–06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)); see also Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). “[T]he ‘unreasonable application’ prong of § 2254(d)(1) permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from Court's decisions but unreasonably applies that principle to the facts' of petitioner's case.” Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ( quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495); see also Bell, 535 U.S. at 694, 122 S.Ct. 1843. Wiggins, 539 U.S. at 520–21, 123 S.Ct. 2527 (citations omitted); see also Williams, 529 U.S. at 409, 120 S.Ct. 1495.
Section 2254(d)(1) limits a federal habeas court's review to a determination of whether the state court's decision comports with clearly established federal law as determined by the Supreme Court at the time the state court renders its decision. 28 U.S.C. § 2254(d)(1); see Williams, 529 U.S. at 412, 120 S.Ct. 1495; see also Lockyer v. Andrade, 538 U.S. 63, 71–72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). Section 2254(d) “does not require citation of [Supreme Court] cases—indeed, it does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002); see also Mitchell, 540 U.S. at 16, 124 S.Ct. 7. While the requirements of “clearly established law” are to be determined solely by the Supreme Court's holdings, the decisions of lower federal courts are useful in assessing the reasonableness of the state court's resolution of an issue. Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir.2007) ( citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir.2003)).
Additionally, a federal habeas court must presume that state court factual determinations are correct. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360–61 (6th Cir.1998).
It is well established that the right to counsel of one's choice is not absolute. See Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). The decision regarding whether to appoint new counsel at a defendant's request is committed to the sound discretion of the trial court. United States v. Saldivar–Trujillo, 380 F.3d 274, 277–78 (6th Cir.2004). In United States v. Gonzalez–Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), the Supreme Court held that a defendant could obtain a new trial without showing prejudice when the trial court arbitrarily denied him the services of his retained counsel—in that case, by erroneously refusing to grant the chosen attorney admission pro hac vice. 548 U.S. at 143, 144–45, 126 S.Ct. 2557. However, Gonzalez–Lopez does not suggest that the choice-of-counsel right at issue is absolute; its holding only addresses situations in which “the defendant is erroneously prevented from being represented by the lawyer he wants....” Id. at 148, 126 S.Ct. 2557 (emphasis added). The Supreme Court went on to recognize that Id. at 152, 126 S.Ct. 2557 (internal citations omitted).
Petitioner attempts to excise the unhelpful portion of the balancing test required by Gonzalez–Lopez by objecting to the Magistrate Judge's approval of the appellate court's “prejudice analysis.” (Doc....
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