Cody v. Sheldon, Case No. 1:18cv1787

• Court: United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
• Writing for the Court: JUDGE PAMELA A. BARKER
• Parties: John Cody, Also known as Bobby Thompson, Petitioner, v. Ed Sheldon, Warden, Respondent
• Docket Number: Case No. 1:18cv1787
• Decision Date: 16 April 2021

John Cody, Also known as Bobby Thompson, Petitioner,
v.
Ed Sheldon, Warden, Respondent

Case No. 1:18cv1787

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

April 16, 2021

JUDGE PAMELA A. BARKER

Magistrate Judge Kathleen Burke

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon the Report & Recommendation ("R&R") of Magistrate Judge Kathleen Burke (Doc. No. 65), which recommends that Petitioner John Cody's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be dismissed in part and denied in part. Petitioner has filed Objections to the R&R. (Doc. No. 74-1.) For the following reasons, Petitioner's Objections (Doc. No. 74-1) are OVERRULED, the Report & Recommendation (Doc. No. 65) is ADOPTED as set forth herein, and the Petition (Doc. No. 1) is DENIED.

I. Summary of Facts

The following is a brief summary of the facts describing Cody's state court conviction as summarized by the Ohio Court of Appeals:

{¶ 2} This case arises from an investigation regarding the United States Naval Veteran's Association ("USNVA"), a charity organized and created by a person holding himself out to be Bobby Thompson. Through the investigation, it was discovered that the USNVA was a sham, fabricated by a person named John Donald Cody, who manipulated unsuspecting individuals across the United States to donate to this charity, unlawfully procuring millions of dollars.

{¶ 3} In mid-2010, the state of Ohio began its investigation into the USNVA after a story was published in the St. Petersburg Times that the charity was fictitious. Through

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its investigation, the state revealed that Ohio residents had been solicited by various professional fundraisers contracted by USNVA to donate money to the USNVA. It was discovered that approximately $2 million was solicited on behalf of the USNVA from resident-donors in the state of Ohio.

{¶ 4} As a result of the investigation, on October 13, 2010, Appellant was indicted in Cuyahoga C.P. No. CR-10-543025 on charges of engaging in a pattern of corrupt activity involving the USNVA, money laundering, and aggravated theft. In December 2010, another indictment was issued against Appellant in Cuyahoga C.P. No. CR-10-545577 on 22 additional charges, including engaging in a pattern of corrupt activity, aggravated theft, money laundering, tampering with records, and identity fraud.

{¶ 5} A warrant was subsequently issued for Appellant's arrest. In April 2012, Appellant was finally apprehended in the state of Oregon.

State v. Cody, 34 N.E.3d 189, 191 (Ohio App. 8th Dist. 2015).¹

II. Relevant Procedural History²

A. Trial Court Proceedings

In May 2012, Cody was arraigned, assigned counsel, and pleaded not guilty in Cuyahoga County Court of Common Pleas Case Nos. CR-10-543025 and CR-10-545577. (Doc. 42-1, Exhs. 5, 6.) On July 12, 2012, in Case No. CR-10-545577, the state trial court referred Cody to the court's psychiatric clinic for an evaluation. (Doc. 42-1, Exh. 7.)

On July 25, 2012, Cody was indicted by the Cuyahoga County Grand Jury in a superseding indictment on the following twenty-four (24) counts: (1) one count of engaging in a pattern of corrupt activity (Ohio Rev. Code § 2923.32(A)(1)) (Count 1); (2) one count of complicity to theft (Ohio Rev.

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Code § 2913.02(A)(3)) (Count 2); (3) seven counts of complicity to money laundering (Ohio Rev. Code § 1315.55(A)(1)) (Counts 3-9); (4) one count of tampering with records (Ohio Rev. Code § 2913.42(A)(2)) (Count 10); (5) one count of complicity to tampering with evidence (Ohio Rev Code § 2913.42(A)(2)) (Count 11); (6) twelve counts of identity fraud (Ohio Rev. Code § 2913.49(B)) (Counts 12-23); and (7) one count of possession of criminal tools (Ohio Rev. Code § 2923.24) (Count 24). (Doc. 42-1, Exh. 9.) This case was assigned Cuyahoga County Court of Common Pleas Case No. 12-CR- 565050. (Id.) Cody, through counsel, entered a plea of not guilty. (Doc. 42-1, Exh. 10.)

The previous indictments issued in Case Nos. CR-10-543025 and CR-10-545577 were subsequently dismissed and the State proceeded on the charges in Case No. CR-12-565050. (Doc. 42-1, Exhs. 15, 16.) On August 21, 2012, the parties stipulated to the competency reports that had been prepared as part of Cody's psychiatric evaluation in Case No. CR-10-545577. (Doc. 42-1, Exh. 11.)

On January 30, 2013, Cody filed a waiver of attorney and sought to represent himself. (Doc. 42-1, Exh. 18.) After a hearing, the state trial court permitted Cody to proceed pro se and appointed his then-counsel, Joseph Patituce, as advisory counsel. See Doc. 42-1, Exh.19; Doc. 43-1 at Tr. 125-145 (Tr. Vol. 1).

On August 26, 2013, a month before trial, Cody, on the record, relinquished his position as pro se counsel and Mr. Patituce was assigned as counsel of record. See Doc. 42-1, Exh. 34; Doc. 43-2 at Tr. 493 (Tr. Vol. 2). Defense counsel then filed a motion to continue trial, which the State opposed. (Doc. 42-1, Exhs 35, 36.) The state trial court denied Cody's motion for a continuance. (Doc. 42-1, Exh. 37.)

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On September 30, 2013, the matter proceeded to a jury trial. (Doc. No. 43-1.) After a three-week trial, Cody was found guilty of Counts 1-23 as charged in the superseding indictment. (Doc. No. 42-1, Exh. 40.) Count 24 (possession of criminal tools) was dismissed by the state trial court. (Id.)

On December 10, 2013, Cody, through counsel, filed a motion for a new trial, arguing that the jury improperly considered the fact that he did not testify. (Doc. 42-1, Exh. 41.) On December 16, 2013, the state trial court denied Cody's motion. (Doc. 43-22 at Tr. 4534-4535 (Tr. Vol. 22)). The state trial court proceeded to sentencing and ordered Cody to serve ten years on Count 1; eight years on Count 2 to run consecutively with Count 1; 24 months on each of Counts 3-9, served concurrently to each other but consecutively to Counts 1 and 2; 24 months on Counts 10-11, served concurrently to each other but consecutively to Counts 1, 2 and 3-9; five years on Count 12, served consecutively with Counts 1, 2, 3-9 and 10-11; and 12 months on Counts 13-23, served concurrently to each other but consecutively to Counts 1, 2, 3-9, 10-11 and 12, for an aggregate sentence of 28 years in prison. (Doc. No. 42-1, Exh. 43.) In addition, the state trial court ordered Cody to spend every Veteran's Day in solitary confinement. (Id.)

B. Direct Appeal

In December 2013, Cody, through new counsel, filed a timely appeal of his convictions and sentence in the state appellate court, in which he raised the following three grounds for relief:

1. The trial court erred, and violated due process, when it entered convictions for eleven counts of identity fraud for which it did not have jurisdiction. (Fifth and Fourteenth Amendments, United States Constitution; Sections 10 and 16, Article I, Ohio Constitution. R.C.2901.11. December 17, 2013 Journal Entry of Sentence).

2. The trial court violated the Appellant's rights to due process and a fair trial when it allowed the admission of irrelevant and overly prejudicial testimony and documentary evidence referencing a potential future charitable organization Appellant was

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establishing. Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution; Evid.R. 402; 403 (Tr. at 1215-1217; 1965-1967; 2223-2243; 3841-3861; 3711-3716; 3832-3858; Exh. 26-1).

3. The trial court erred when it imposed a day of solitary confinement on each Veteran's Day (Tr. at 4550; Dec. 16, 2013 Journal Entry).

(Doc. 42-1, Exhs. 44, 45.)

On June 11, 2015, the state appellate court sustained Cody's first ground for relief, finding that the State of Ohio did not have jurisdiction over the 11 counts of identity fraud contained in Counts 13 through 23 of the indictment. State v. Cody, 34 N.E.3d at 191-196. The court vacated Cody's convictions on those counts and remanded for "a new judgment entry of conviction to reflect that Counts 13 through 23 are vacated, including [Cody's] 12- month total sentence imposed for these offenses." Id. at 196. In addition, the state appellate court agreed with Cody's third ground for relief and ordered the state trial court to vacate the imposition of solitary confinement on Veteran's Day. Id. In all other respects, Cody's convictions and sentence were affirmed. Id.

Proceeding pro se, Cody timely appealed to the Supreme Court of Ohio. In his Memorandum in Support of Jurisdiction, he raised the following propositions of law:

1. The Court of Appeals Lacked Jurisdiction to make any hypothetical ruling, or even to address the subject at all, on any Evid. R. 401-404(B) issues; and the fact evidence came in as relevant to dismissed Counts 13-24 [identity fraud (others) and Possession of Criminal Tools] required jurisdictional remand to the Common Pleas Court for retrial as to how that evidence was to come in, or if it should come in at all.

2. Where an Appellate Court creates a new Evid. R. 101, 105, 401-404(B) issue which stems from a preliminary holding or finding, a criminal defendant may retain a constitutional right to trial on such issue(s) by a common pleas court and jury, under the 6th and 14th Amendments to the United States Constitution, and Art. I, §§5 and 10 of the Ohio Constitution.

3. The Trial Court Lacked Subject Matter Jurisdiction to Proceed on CR-12-565050 A, At All, because the entire indictment was void at the moment of its presentment by the Grand Jury.

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4. If the Appellate Court had jurisdiction to decide the hypothetical evidentiary issues it did in Section III of its Opinion, the Harmless Error Standard, not the Plain Error Standard, should have applied, and the case remanded for new trial.

4(A). Assuming the Appellate Court had authority to rule on the 403/404(B) issues raised, the introduction of that evidence amounted to character assassination of the Defendant unfairly prejudicing a trial against him, and therefore new trial was mandated.

(Doc. 42-1, Exh. 54) (as in original). The Supreme...