Dukes v. Jenkins

• Decision Date: 31 July 2015
• Docket Number: Case No. 1:14-cv-545
• Parties: DARNELL M. DUKES, Petitioner, v. CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

DARNELL M. DUKES, Petitioner, v. CHARLOTTE JENKINS, Warden,Chillicothe Correctional Institution, Respondent.

Case No. 1:14-cv-545

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

July 31, 2015

District Judge Sandra S. Beckwith

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case was brought pro se by Petitioner Darnell Dukes to obtain relief from his conviction in the Hamilton County Common Pleas Court on sixteen counts of possession of criminal tools. He pleads the following grounds for relief:

Ground One: The trial court erred as a matter of law by overruling Appellant's motion to suppress, and as a result, denied Appellant's right to be free from unreasonable searches and seizures.

Ground Two: The trial court erred by permitting irrelevant and prejudicial testimony into evidence, thus prejudicing Appellant's rights to a fair and impartial trial.

Ground Three: The trial court erred as a matter of law by permitting other acts testimony into evidence, thus prejudicing Appellant's rights to a fair trial.

Ground Four: Appellant was denied effective assistance of counsel in violation of his constitutional rights, thus prejudicing his rights to a fair trial.

Ground Five: The evidence was insufficient as a matter of law to sustain Appellant's conviction.

Ground Six: The trial court erred as a matter of law by improperly sentencing Appellant.

(Petition, ECF No. 1.) On Magistrate Judge Bowman's Order for Answer (ECF No. 4), the Warden has filed the state court record (ECF Nos. 9 & 10) and a Return of Writ (ECF No. 11). Petitioner filed a Reply (ECF No. 13) and the case is accordingly ripe for decision.

Procedural History

Dukes was indicted by the Hamilton County grand jury on sixteen counts of possessing criminal tools. He was arrested on an indictment warrant after completing a federal prison term in Texas on unrelated charges. A petit jury found Dukes guilty on all counts on October 26, 2012, and he was thereafter sentenced to the prison term from which he seeks release. He took a direct appeal to the Ohio First District Court of Appeals which affirmed the conviction on February 7, 2014. State v. Dukes,¹ Case Nos. C-120819 and C-120845 (1^st Dist. Feb. 7, 2014)(unreported, copy at ECF No. 10, Ex. 29, PageID 1152-57). The Ohio Supreme Court declined to exercise jurisdiction over a further appeal. State v. Dukes, 139 Ohio St. 3d 1418 (2014). Dukes then filed this action June 23, 2014.

ANALYSIS

Ground One: Denial of Motion to Suppress

In his First Ground for Relief, Dukes claims his constitutional rights were denied when the Ohio courts denied his motion to suppress. The Fourth and Fifth Amendment claims in that motion are subject to separate analysis in habeas corpus.

Fourth Amendment

By his motion to suppress, Dukes challenged the admission in evidence of tangible objects seized from him by the State, alleging the seizure violated his rights under the Fourth Amendment.

Federal habeas corpus relief is not available to state prisoners who allege they were convicted on illegally seized evidence if they were given a full and fair opportunity to litigate that question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone requires the district court to determine whether state procedure in the abstract provides full and fair opportunity to litigate, and Ohio procedure does. The district court must also decide if a Petitioner's presentation of claim was frustrated because of a failure of the state mechanism. Habeas relief is allowed if an unanticipated and unforeseeable application of procedural rule prevents state court consideration of merits. Riley v. Gray, 674 F.2d 522 (6^th Cir. 1982). The Riley court, in discussing the concept of a "full and fair opportunity," held:

The mechanism provided by the State of Ohio for resolution of Fourth Amendment claims is, in the abstract, clearly adequate. Ohio R. Crim. P. 12 provides an adequate opportunity to raise Fourth Amendment claims in the context of a pretrial motion to suppress, as is evident in the petitioner's use of that procedure. Further, a criminal defendant, who has unsuccessfully sought to suppress evidence, may take a direct appeal of that order, as of right, by filing a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P. 5(A). These rules provide an adequate procedural mechanism for the litigation of Fourth Amendment claims because the state affords a litigant an opportunity to raise his claims in a fact-finding hearing and on direct appeal of an unfavorable decision.

Id. at 526.

The record shows that Dukes had a full and fair opportunity to litigate his Fourth Amendment claims in the state courts. He was in fact given a hearing on his motion to suppress and the First District considered his claim on the merits on direct appeal and rejected it. State v. Dukes, supra, PageID 1152-53.

Because Dukes was given a full and fair opportunity to litigate his Fourth Amendment claim in the state courts, this Court should dismiss the Fourth Amendment portion of his First Ground for Relief without reaching the merits.

Fifth Amendment

Dukes also sought to suppress, as improperly invading his privilege against self-incrimination, the statements he made to police on the evening when the tangible evidence was seized.

In deciding this claim on the merits, the First District held:

Dukes further argues that his statements to the police should have been suppressed because they were made during a custodial interrogation before he was read his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The record shows that when police officers asked Dukes some preliminary questions about why he was present in the hotel room, he was under investigative detention and was not subject to custodial interrogation. Therefore, the police officers were not required to give him Miranda warnings at that time. See State v. Garrison, 2d Dist. Montgomery No. 24857, 2012-Ohio-3846, ¶ 17, 22, 25-27; State v. Raine, 8th Dist. Cuyahoga No. 90681, 2008-Ohio-5993, 1119-20; State v. Schultz, 23 Ohio App.3d 130, 134-136,491 N.E.2d 735 (10th Dist.1985).

Once the police officers searched Dukes's duffle bag by consent and discovered a number of credit cards, Dukes became a focus of their investigation and the officers read him his Miranda rights. The record shows that Dukes knowingly, intelligently, and voluntarily waived those rights and that his statements were voluntary under the Due Process Clause of the United States Constitution. See Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); State v. Dailey, 53 Ohio St.3d 88, 91-92, 559 N.E.2d 459 (1990); State v. Jones, 1st Dist Hamilton No. C-080518, 2009-0hio-4190, ¶ 18-21. Consequently, the trial court did not err in overruling Dukes's motion to suppress, and we overrule his first assignment of error.

State v. Dukes, supra, PageID 1153-54.

When a state court decides on the merits a federal constitutional claim later presented to a federal habeas court, the federal court must defer to the state court decision unless that decision is contrary to or an objectively unreasonable application of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). The same is true of state court findings of fact under 28 U.S.C. § 2254(d)(2): they are entitled to deference unless the petitioner demonstrates they are unreasonable determinations given the evidence presented in thestate courts.

In this case the trial court judge heard the evidence and gave cogent reasons for crediting the testimony offered by the State and discrediting Dukes' personal testimony. On appeal the First District applied the pertinent Supreme Court precedent and Dukes has not shown that application was objectively unreasonable. The Court should therefore dismiss the Fifth Amendment portion of the First Ground for Relief on the merits.

Ground Two: Admission of Irrelevant and Prejudicial Testimony

In his Second Ground for Relief, Dukes asserts the trial court erred in admitting evidence of the arrest and prosecution of Darryl Wilkerson for possessing re-encoded cards (Petitioner's Memorandum Brief, ECF No. 2, PageID 33-34). This claim was raised as Dukes' Second Assignment of Error on direct appeal and decided by the First District as follows:

In his second assignment of error, Dukes argues that the trial court erred in admitting testimony about the arrest of another suspect, Darryl Wilkerson, and Wilkerson's possession of reencoded credit cards. Dukes argues that that evidence was irrelevant and unfairly prejudicial. This assignment of error is not well taken.

First, Dukes acknowledges that he failed to object to most of the testimony of which he now complains, which precludes him from raising the issue on appeal unless it rises to the level of plain error. See State v. Underwood, 3 Ohio St.3d 12, 13, 444 N.E.2d 1332 (1983); State v. Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 23. Nevertheless, the evidence about Wilkerson and his arrest was relevant to show Dukes's involvement in the credit-card-reencoding scheme. See Evid.R. 401; State v. Homschemeier, 1st Dist. Hamilton No. C-110466, 2012-Ohio-2860, ¶ 33·

Further, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. See Evid.R. 403(A); State v. Hirsch, 129 Ohio App.3d 294, 307, 717 N.E.2d 789 (1st Dist.1998). We cannot hold that the trial court abused its discretionin admitting the evidence, much less that its admission rose to the level of plain error. See Hornschemeier at ¶ 34; Hirsch at 307. Therefore, we overrule Dukes's second assignment of error.

State v. Dukes, supra, PageID 1154.

The Warden asserts this claim is procedurally...