Crossty v. Warden, Mansfield Corr. Inst.

• Decision Date: 08 July 2020
• Docket Number: Case No. 1:19-cv-292
• Parties: CHARLES R. CROSSTY, Petitioner, v. WARDEN, Mansfield Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

CHARLES R. CROSSTY, Petitioner, v. WARDEN, Mansfield Correctional Institution, Respondent.

Case No. 1:19-cv-292

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

July 8, 2020

District Judge Matthew W. McFarland

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Charles Crossty under 28 U.S.C. §2254, is before the Court for decision on the merits. The relevant filings for consideration are the Petition (ECF No. 1), the State Court Record (ECF Nos. 9 and 11), and Respondent's Return of Writ (ECF No. 10).

On December 9, 2019, Magistrate Judge Stephanie Bowman, to whom the case was then referred, granted Petitioner an extension of time to file a reply to twenty-one days after her Order was served on Petitioner (ECF No. 13). Because her Order was served on Petitioner by mail, his time to file a reply was extended another three days by Fed.R.Civ.P. 6 and therefore expired on January 2, 2020. No reply was filed by the deadline nor has a reply since been tendered for filing.

Litigation History

On March 8, 2016, Crossty was indicted on (1) six counts of trafficking in heroin in violation of Ohio Revised Code § 2925.03, (2) three counts of trafficking in cocaine in violation of Ohio Revised Code § 2925.03, (3) two counts of aggravated trafficking in drugs in violation of Ohio Revised Code § 2925.03 where the substance trafficked was fentanyl, a schedule II drug, and (4) one count of engaging in a pattern of corrupt activity in violation of Ohio Revised Code § 2923.32(A)(1)(Indictment, State Court Record, ECF No. 9, Ex. 1). The trafficking counts all carried a specification that the offense had occurred within 1,000 feet of a juvenile. Id.

The case was tried to the bench in November 2016 and Crossty was found guilty on all counts. After merging some counts under Ohio Revised Code § 2941.25, the trial court sentenced Crossty to twenty years and nine months imprisonment. Crossty appealed to the Twelfth District Court of Appeals which affirmed the trial court. State v. Crossty, 2017-Ohio-8267 (Ohio App. 12^th Dist. Oct. 23, 2017), appellate jurisdiction declined. Case No. 2017-1710 (Ohio S. Ct. Apr. 25, 2018)(unreported; copy at State Court Record ECF No. 9, PageID 204).

On March 19, 2018, Crossty filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 which the trial court dismissed as untimely (State Court Record, ECF No. 9, Exs. 18 and 20). The Twelfth District affirmed the dismissal on the same basis. Id. at Ex. 24. After unsuccessfully attempting a second post-conviction petition, Crossty filed his Petition in this Court April 15, 2019, pleading the following grounds for relief:

Ground One: The evidence is insufficient to establish venue in Clermont County beyond a reasonable doubt, in violation of the Fourteenth Amendment of the United States Constitution.

Supporting Facts: The Clermont County Court of Common Pleas did not have jurisdiction over Crossty where [there] is insufficient evidence to prove that a crime was committed in Clermont County.

Ground Two: The evidence was insufficient to sustain a conviction of the charge of O.R.C. 2923.32(A)(1), engaging in a pattern of criminal activity.

Supporting Facts: The State failed to establish that Crossty engaged in a pattern of corrupt activity.

Ground Three: Crossty was denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution.

Supporting Facts: trial counsel was ineffective for not properly cross-examining the State's star witness about statements he made to trial counsel during a pretrial interview.

(Petition. ECF No. 1, PageID 10-11.)

Analysis

Ground One: Insufficient Evidence to Establish Venue

In his First Ground for Relief, Crossty argues the State presented insufficient evidence to prove that his offenses were committed in Clermont County, Ohio. In defense, Respondent asserts that venue is not an element of any of the crimes with which Crossty was charged and therefore his claim is not cognizable in federal habeas corpus. Crossty has filed no reply.

An allegation that a verdict was entered upon insufficient evidence states a claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order for a conviction to be constitutionally sound, every element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt . . . . This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007).

The proof beyond a reasonable doubt requirement applies to every element of a state crime. Apprendi v. New Jersey, 530 U.S. 466 (2000), quoting Jones v. United States, 526 U.S. 227 (1999). Respondent asserts that, as a matter of Ohio law, venue is not an element of any of the crimes with which Crossty was charged (Return, ECF No. 10, PageID 354, citing State v. Jackson, 141 Ohio St. 3d 171, 198, 2014-Ohio-3707, ¶¶ 143-145 (citing State v. Draggo, 65 Ohio St.2d 88, 90 (1981); and State v. Smith, 87 Ohio St.3d 424, 435 (2000); State v. Headley, 6 Ohio St.3d 475, 477 (1983)).

In his Brief on appeal, Crossty admitted that "[v]enue is not a material element of any offense charged." (State Court Record, ECF No. 9, PageID 100.) That admission is in accord with the Ohio law cited by Respondent. The Magistrate Judge therefore concludes Ground One does not state a claim upon which relief can be granted in habeas corpus and should be dismissed

Ground Two: Insufficient Evidence to Prove a Pattern of Corrupt Activity

In his Second Ground for Relief, Crossty claims the State offered insufficient evidence that he engaged in a pattern of corrupt activity. Respondent asserts Crossty procedurally defaulted this claim by not including it in his appeal to the Supreme Court of Ohio (Return, ECF No. 10, PageID 351). Crossty has made no reply.

The procedural default doctrine in habeas corpus is described by the Supreme Court asfollows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6^th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). "Absent cause and prejudice, 'a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review.'" Boyle v. Million, 201 F.3d 711, 716 (6^th Cir. 2000), quoting Gravley v. Mills, 87 F.3d 779, 784-85 (6^th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.

[A] federal court may not review federal claims that were procedurally defaulted in state court—that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is an important "corollary" to the exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed. d 659 (2004). "Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address" the merits of "those claims in the first instance." Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111 S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default doctrine thus advances the same comity, finality, and federalism interests advanced by the exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).

"A claim may become procedurally defaulted in two ways." Williams v. Anderson, 460 F.3d 789, 806 (6^th Cir. 2006). First, a claim is procedurally defaulted where state-court remedies have been exhausted within the meaning of § 2254, but where the last reasoned state-court judgment declines to reach the merits because of a petitioner's failure to comply with a state procedural rule. Id. Second, a claim is procedurally defaulted where the petitioner failed to exhaust state court remedies, and the remedies are no longer available at the time the federal petition is filed because of a state procedural rule. Id.

Lovins v. Parker, 712 F.3d 283, 295 (6^th Cir. 2013).

Upon examination of the State Court Record, the Magistrate Judge finds that, as Respondent asserts, this constitutional claim was not included in Crossty's appeal from the Twelfth District's decision. Crossty raised only one ground for relief in the Supreme Court of Ohio, the venue question presented above in Ground One (Memorandum in Support of Jurisdiction, State Court Record, ECF...