Hackney v. Warden, Se. Corr. Inst.

• Decision Date: 02 April 2019
• Docket Number: Case No. 1:17-cv-564
• Parties: MICHAEL HACKNEY, Petitioner, v. Warden, Southeastern Correctional Institution Respondent.
• Court: U.S. District Court — Southern District of Ohio

MICHAEL HACKNEY, Petitioner, v. Warden, Southeastern Correctional Institution Respondent.

Case No. 1:17-cv-564

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

April 2, 2019

District Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Michael Hackney, is before the Court for decision upon the Petition (ECF No. 4), the State Court Record (ECF No. 9), the Return of Writ (ECF No. 10), and Petitioner's Reply (ECF No. 15). Petitioner pleads two grounds for relief.

Ground One: Ineffective Assistance of Counsel

Supporting Facts: Trial counsel was ineffective for stipulating to the weight of the cocaine used against Mr. Hackney when there was no test for its purity. Trial counsel made a motion for a Franks hearing but should have made a motion to suppress based on Mr. Hackney illegal seizure without probable cause to arrest. Trial counsel provided erroneous legal advice concerning a plea bargain.

Ground Two: Petitioner's right to due process was violated when the court allowed hearsay testimony to be used against him and violated his rights to confront the witness.

Supporting Facts: On direct appeal to the Court of Appeals, First Appellate District of Ohio, the First District agreed with Mr. Hackney that the hearsay testimony from the CI violated his rights to confront the witnesses against him as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution.

(Petition, ECF No. 4, PageID 39-41.)

Litigation History

A Hamilton County grand jury indicted Hackney on December 31, 2014, on two counts of trafficking cocaine, one count of possession of cocaine and one count of having weapons while under disability. After denial of Hackney's motion to suppress, the case proceeded to jury trial and he was convicted on all the charged counts. He was sentenced to an aggregate prison term of fourteen years which was later reduced to eleven.

On appeal in the state court, the First District reversed Hackney's conviction on the first count of trafficking because it found he had been convicted in violation of his rights under the Confrontation Clause and without the hearsay testimony of the informant, the State had not proven guilt beyond a reasonable doubt. State v. Hackney, 2016-Ohio-4609 (1^st Dist. Jun. 29, 2016), appellate jurisdiction declined, 2016-Ohio-8348 (Dec. 28, 2016). The convictions for the other count of trafficking and for having weapons under disability were upheld and his claims of ineffective assistance of trial counsel were overruled.

After completion of consideration by the Supreme Court of Ohio, Hackney filed his Petition in this Court. The Answer raises no affirmative defenses, but contends this Court should defer to the First District's decision under the AEDPA.

Analysis

Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Petitioner contends his trial attorney provided ineffective assistance of counsel by (1) stipulating to the weight of the cocaine used against Mr. Hackney when there was no test for its purity, (2) not filing a motion to suppress, and (3) providing erroneous legal advice concerning a plea bargain.

The governing standard for ineffective assistance of trial counsel was adopted by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects ofhindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held:

The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to overcome confidence in the outcome.

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d 313, 319 (6^th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6^th Cir. 1987).

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, 100 (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). Deference is also due under 28 U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

Hackney presented an ineffective assistance of trial counsel claim on direct appeal which the First District decided as follows (omitting sub-claims not pleaded in habeas corpus):

V. Ineffective Assistance of Counsel[*P35] Finally, in his first assignment of error, Hackney contends that he was denied the effective assistance of counsel. He argues that his counsel was ineffective for failing to object to hearsay evidence and evidence of plea negotiations, stipulating to laboratory reports regarding cocaine weight, consenting to unrecorded sidebar conferences, failing to file a motion to suppress on appropriate grounds, and providing erroneous legal advice concerning a plea bargain. This assignment of error is not well taken.

[*P36] A court will presume that a properly licensed attorney is competent, and the defendant bears the burden to show ineffective assistance of counsel. State v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988); State v. Bell, 2015-Ohio-1711, ¶ 53, 34 N.E.3d 405 (1st Dist.). To sustain a claim for ineffective assistance of counsel, the defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bell at ¶ 25.

[*P37] To establish that counsel's performance was deficient, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Strickland at 687-688; State v. Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386, ¶ 51. Judicial scrutiny of counsel's performance must be highly deferential. The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland at 689; Thomas at ¶ 51. A defendant is not deprived of the effective assistance of counsel when counsel chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988); Thomas at ¶ 51.

[*P38] To establish prejudice, a defendant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland at 694; Thomas at ¶ 52. Prejudice from defective representation sufficient to justify reversal of a conviction exists only where the result of the proceeding was unreliable or fundamentally unfair because of counsel's performance. Lockhart v. Fretwell, 506 U.S. 364, 369-370, 113S.Ct. 838, 122 L.Ed.2d 180 (1993); State v. Carter, 72 Ohio St.3d 545, 558, 1995-Ohio-104, 651 N.E.2d 965 (1995); Thomas at ¶ 52.

A. Failure to Object to Hearsay [omitted]B. Failure to Object to Evidence of Plea Negotiations [omitted]

C. Stipulation to Laboratory Reports

[*P41] Hackney next argues that his counsel was ineffective for stipulating to the laboratory reports regarding the weight of the cocaine. He relies on State v. Gonzales, 6th Dist. Wood No. WD-13-086, 2015-Ohio-461. In that case, the Sixth Appellate District held that in prosecuting cocaine offenses under R.C. 2925.11(C)(4)(a) through (f), the state must prove that the weight of the actual cocaine possessed by the defendant met the statutory threshold. Because the state failed to present evidence of the cocaine's purity, the court reversed the penalty enhancement. Id. at ¶ 47.

[*P42] But that case is not binding authority in this district. See State v. Dovangpraseuth, 10th Dist. Franklin No. 05AP-88, 2006-Ohio-1533, ¶ 36; Stapleton v. Holstein, 131 Ohio App.3d 596, 598, 723

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