Hamilton v. Gansheimer, No. 1:06 CV 2317.

• Decision Date: 27 February 2008
• Docket Number: No. 1:06 CV 2317.
• Citation: 536 F.Supp.2d 825
• Parties: Anton D. HAMILTON, Jr., Petitioner, v. Richard GANSHEIMER, Respondent.
• Court: U.S. District Court — Northern District of Ohio

Page 825

536 F.Supp.2d 825

Anton D. HAMILTON, Jr., Petitioner, v. Richard GANSHEIMER, Respondent.

No. 1:06 CV 2317.

United States District Court, N.D. Ohio, Western Division.

February 27, 2008.

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Anton D. Hamilton, Jr., Conneaut, OH, pro se.

Richard Gansheimer, Conneaut, OH, pro se.

Diane Mallory, Office of the Attorney General-Corrections Litigation State of Ohio, Columbus, OH, for Respondent.

MEMORANDUM OPINION AND ORDER

JACK ZOUHARY, District Judge.

BACKGROUND

Pro se Petitioner Anton Hamilton, Jr., a prisoner in state custody, filed a Petition for a Writ of Habeas Corpus in this Court (Doc. No. 1). This Court has jurisdiction under 28 U.S.C. § 2254(a) ("[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."). Petitioner is in custody and has alleged his detention violates the First, Sixth, Eighth and Fourteenth Amendments of the U.S. Constitution.

The case was referred to United States Magistrate Judge Vernelis Armstrong for a Report and Recommendation pursuant to Local Rule 72.2(b)(2). In her Report and Recommendation (Doc. No. 41), the Magistrate Judge recommended the Court deny the Petition, as well as Petitioner's Motions of Clarification (Doc. No. 33), for Reconsideration (Doc. No. 37) and to Add to the Petition (Doc. No. 39) ("Other Motions").

This action is before the Court on Petitioner's Objection to the Report and Recommendation (Doc. No. 42) in which he objects specifically, and exclusively, to the recommendation denying the Petition. In accordance with Hill v. Duriron Co., 656 F.2d 1208 (6th Cir.1981) and 28 U.S.C. § 636(b)(1)(B) & (C), this Court has made a de novo determination of the Magistrate's findings and adopts the denial of the Petition for a Writ of Habeas Corpus. The Court also adopts the denial of the Other Motions.

DISCUSSION

Facts and Procedural Background

This Court adopts the Magistrate's statement of the underlying fads (at pp. 2-3).

Petitioner was indicted in July 1999 for murder with a firearm specification. He was found guilty and sentenced to a term of fifteen years to life with an additional term of three years for the firearm specification., In April 2002, following Petitioner's appeal of his conviction, the appellate court reversed the conviction and remanded for a new trial. Petitioner's motions to vacate his sentence and a petition for writ of habeas corpus in the Ohio Supreme Court were denied. In February 2004, Petitioner was convicted of the same counts in his second trial and received the same sentence. Petitioner's motion for a new trial was denied. His conviction was affirmed by the appellate court, The Ohio Supreme Court denied Petitioner's request to appeal in that court. Petitioner filed a petition for writ of habeas corpus in the. Ohio Supreme Court, which that court dismissed in July 2006. He filed this Petition on September 25, 2006.

Petition for a Writ of Habeas Corpus

The Petition alleges three constitutional violations: (1) Petitioner was prejudiced by the trial court's reading of a Howard Charge to the jury; (2) he was prejudiced by admission of allegedly perjured testimony; and (3) his conviction for murder with a firearm specification was against the manifest weight of evidence because the evidence consisted of allegedly perjured testimony without other support.

The Magistrate found (at p. 11) that Petitioner, procedurally defaulted on each of these arguments by failing to raise them, as required, during state court proceedings. The Magistrate specifically found Petitioner raised the Howard Charge argument in the Ohio appeals court but failed to raise it in the Ohio Supreme Court. The Magistrate further found Petitioner never raised in state court the arguments concerning perjured testimony and verdict against the manifest weight of evidence.

Petitioner objects to each of these findings. He claims: (1) his appellate counsel informed him she would exhaust all issues "by appealing the decision of the Eleventh District Court of Appeals, up to Ohio Supreme Court, so that Petitioner would be able to file a federal Petition for Habeas Corpus, if necessary after that" (Objection at p. "2), and (2) he raised the argument concerning perjured testimony in his state Habeas Corpus proceeding with the Ohio Supreme Court, which he argues satisfies any procedural bar.

Procedural Default

The doctrine of procedural default prevents federal habeas courts from reviewing federal claims that the state courts declined to address because of a petitioner's failure to comply with state procedural requirements. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). "Under Ohio law, the failure to raise on appeal a claim that appears on the face of the record constitutes a procedural default under the State's doctrine of res judicata." Wong v. Money, 142 F.3d 313, 322 (6th Cir.1998).

The Sixth Circuit has adopted the following approach in determining whether a petitioner's grounds for relief are procedurally defaulted and thus beyond the federal habeas court's scope of review:

[W]e engage in a four-part inquiry, asking whether;

(1) a state procedural rule exists that applies to the petitioner's claim, (2) the petitioner failed to comply with the rule, (3) the state court actually applied the state rule in rejecting the petitioner's claim, and (4) the state procedural rule is an adequate and independent ground upon which the state can rely to deny relief. Furthermore, a procedural default does not bar consideration of a federal claim on habeas corpus review unless the last state court rendering a reasoned opinion in the case clearly and expressly states that its judgment rests on a state procedural bar.

Morales v. Mitchell, 507 F.3d 916, 937 (6th Cir.2007) (internal quotation marks omitted) (citations omitted).

Procedural default occurs when the last state court rendering a decision makes a "plain statement" basing its judgment on a procedural bar. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). "The mere existence of a basis for a state procedural bar does not deprive [federal courts] of jurisdiction; the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case." Bowling v. Parker, 344 F.3d 487, 498 (2003) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985)); see also Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (holding that the last state court rendering a reasoned judgment must "clearly and expressly" state that its judgment rests on a procedural bar for the doctrine of procedural default to apply).

In cases where no state court has addressed the issue in a reasoned judgment but has merely denied relief in a summary fashion, the federal habeas court must determine whether the decision rested on "adequate and independent" state grounds. The Sixth Circuit has held that in such cases, the federal courts assume "that had the state court addressed [the]. petitioner's ... claim, it would not have ignored its own procedural rules and would have enforced the procedural bar." Simpson v. Sparkman, 94 F.3d 199, 203 (6th Cir.1996).

However, the federal habeas court does not need to engage in the four-step analysis described in. Morales if a petitioner never raised the issue(s) on direct review. See Teague v. Lane, 489 U.S. 288, 297-98, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality opinion) ("The rule announced in Harris v. Reed assumes that a state court has had the opportunity to address a claim that is later raised in a federal habeas proceeding."); Wang, 142 F.3d at 322; Williams v. Bagley, 380 F.3d 932, 967 (6th Cir.2004). The claim is also procedurally defaulted if a petitioner fails to raise it before the state's highest court after raising it on the first level of appeals. "A claim raised in the state Court of Appeals but not in the state Supreme Court cannot be considered in federal habeas." Morales v. Coyle, 98 F.Supp.2d 849, 862 (N.D.Ohio 2000) (citing Leroy v. Marshall 757 F.2d 94, 100 (6th Cir.1985); O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999)). The failure to raise the issue to the state's highest court results in a procedural bar against collateral challenge of the conviction on that issue in state court. Nor can the federal habeas court later address the issue. See Leroy, 757 F.2d at 100.

A petitioner may overcome procedural default by showing cause for the failure to comply with the state procedural rule and prejudice resulting from the alleged constitutional violation. See Wong, 142 F.3d at 319. In extraordinary cases, a petitioner may overcome the procedural bar by establishing that declining to hear his or her claim on the merits would load to a miscarriage of justice:

A habeas petitioner can overcome a procedural default by demonstrating that "failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). The "fundamental miscarriage of justice" gateway is open to a petitioner who submits new' evidence showing that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). "To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Id.

Williams, 380 F.3d at 973.

The Court applies these legal standards to the three grounds for relief Petitioner identifies in...