Harper v. Warden

• Decision Date: 23 June 2015
• Docket Number: CASE NO. 2:14-CV-01220
• Court: U.S. District Court — Southern District of Ohio
• Parties: HENRY N. HARPER, Petitioner, v. WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent.

HENRY N. HARPER, Petitioner,
v.
WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:14-CV-01220

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

June 23, 2015

JUDGE GREGORY L. FROST
MAGISTRATE JUDGE KEMP

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on the Petition (Doc. 3), Petitioner's Motion for Summary Judgment (Doc. 14), Respondent's Response in Opposition (Doc. 21), Petitioner's Reply (Doc. 23), the Return of Writ (Doc. 20), Petitioner's Traverse (Doc. 29), and the exhibits of the parties.

For the reasons that follow, the Magistrate Judge RECOMMENDS that Petitioner's Motion for Summary Judgment be DENIED and that this action be DISMISSED.

I. FACTS AND PROCEDURAL HISTORY

The Ohio Fifth District Court of Appeals, in a superseding opinion filed on October 2, 2013, summarized the facts and procedural history of the case as follows:

On May 7, 2010 appellant was employed by Little Bear Construction which is owned by David Ratliff, it was Friday and a pay day. There was a disagreement at work and

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appellant left the work sight and went to the home of Mr. Ratliff. Appellant was anxious, excited, and argumentative.

After leaving Mr. Ratliff's residence, appellant arrived at the residence of a friend, Charles Dalton, at approximately 5:30 p.m. At the Dalton residence, appellant was observed to be agitated and in possession of a black handgun.

At approximately 7:30 p.m. appellant's wife, Tina Harper, arrived home from running errands to find her husband drinking and upset. Appellant said to his wife, "Bitch, you're going to take me down there," meaning to Mr. Ratliff's residence. (T. at 287). Appellant was knocking things off the kitchen counter, breaking things, and would not calm down. Appellant knocked a frying pan off the stove and ordered Mrs. Harper to drive him to Mr. Ratliff's home. Appellant stated that he was going to "teach him a lesson." (T. at 288). Mrs. Harper drove appellant and they stopped at different places including a service station and a friend's home.

Mrs. Harper was scared and afraid of appellant. (T. at 287-288.) Appellant threatened his wife during the incident, showing her the butt of his gun while she was driving and waving the gun around next to her. Appellant gave his wife directions to the Ratliff home, telling her that if she pulled over or made a scene he would beat her head in with the gun. Appellant told his wife that he was going to "shoot up" Mr. Ratliff's truck, and when they arrived at the residence, appellant put his arm out the window and Mrs. Harper heard several gunshots.

After this incident, appellant came into contact with a friend Robert Webb, to whom he relayed the information that he had "just shot at some people." (T. at 271).

At 10:27 p.m. on May 7, 2010, the Guernsey County Sheriff's Office received a call regarding shots being fired at the residence of David Ratliff. Upon arrival at the scene, the deputies discovered several spent Winchester 9 mm casings along the roadway in front of the residence. Mr. Ratliff informed the deputies that earlier that day he had a disagreement with appellant regarding some occurrences on a job site.

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At approximately 11:30 p.m. on the same night, the deputies were en route to the Sheriff's Office when they received another call regarding a man with a pistol. Upon learning that the subject of the call was appellant, the deputies went to appellant's home. Appellant was not at the residence, but his wife arrived shortly after the deputies, driving a silver S-10 pickup truck. At the time of her arrival at the residence, Mrs. Harper told the deputies that she did not know the current whereabouts of appellant.

Mrs. Harper permitted the deputies to search the residence. During that search, the deputies discovered a partial box of Winchester 9 mm bullets and empty gun boxes. Also on the property, the deputies located a minivan behind a building. The hood of the van was warm as if the van had been recently driven. Mrs. Harper eventually admitted she had driven appellant to the residence of a Mr. Dalton.

Upon arriving at Mr. Dalton's residence, the deputies patted appellant down for weapons. At the Sheriff's Office, appellant submitted to a gunshot residue swab. Appellant was asleep in the holding cell and his right arm was resting underneath his body. When the deputy asked appellant for his left hand in order to conduct the gunshot residue test appellant raise his left arm straight up in the air allowing the deputy to conduct the test. When the deputy asked for his right hand, appellant did not answer or otherwise comply with the request. Appellant tested positive for gunshot residue.

Testimony was introduced at trial that appellant owned a gun and that he had it with him that night. In addition appellant acknowledged that he had been convicted of a felony about twenty-five (25) years before the night in question. Further it was acknowledged that there was no record that was attached or a part of the original case to indicate that appellant had expunged or sealed that record. However, appellant testified that he had purchased guns legally since his previous felony and had gone through records checks for those purchases. He had further passed records checks for federal employment and other jobs that he had held. Finally, appellant testified that he had asked his

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attorney to file and seal his record and that he thought that had been done some years before the incidents which occurred May 7, 2010 and which resulted in these charges being filed.

On May 25, 2010, appellant was indicted by the Guernsey County Grand Jury for the following:

Having Weapons While Under Disability in violation of R.C. 2923.13, with a Firearm Specification, a felony of the third degree;

Tampering With Evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree.

Discharge of Firearm on or Near Prohibited Premises in violation of R.C. 2923.162, a misdemeanor of the first degree; and

Kidnapping in violation of R.C. 2905.01(A)(1) and (2), with a Firearm Specification, a felony of the first degree.

On October 15, 2010, the jury returned the following verdicts:

GUILTY of Having Weapons While Under Disability in violation of R.C. 2923.13;

NOT GUILTY of Tampering With Evidence in violation of R.C. 2921.12(A)(1), a felony of the third degree;

GUILTY of Discharge of Firearm on or Near Prohibited Premises in violation of R.C. 2923.162, a misdemeanor of the first degree; and

GUILTY of Kidnapping, a felony of the second degree.

On November 3, 2010, appellant was sentenced to three years imprisonment for Count 1, six months imprisonment for Count 3, two years imprisonment for Count 4, and three years imprisonment for the Firearm Specification to Count 4. The three year mandatory sentence for the Firearm Specification was ordered to be served first with all

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remaining prison terms to be served consecutively, for a total of eight years imprisonment.

Appellant has timely appealed raising three assignments of error: FN1

FN1. Appellant, pro se, attempted to file documents with the Clerk of Courts in this case. He did not request and was not granted leave to file a pro se brief. This brief was filed after the State had filed its brief. Appellant's pro se brief does not show a proper Proof of Service as mandated by App. R. 13. Accordingly, the State had no opportunity to reply to appellant's pro se brief. Additionally, Ohio law prohibits a defendant and his appointed counsel from acting as "co-counsel" See, State v. Martin, 103 Ohio St.3d 385, 816 N.E.2d 227, 2004-Ohio-5471. Accordingly, we will not address appellant's pro se arguments in the disposition of this appeal.

"I. THE DECISION WAS AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.

"II. THE TRIAL COURT COMMITTED ERROR BY IMPROPERLY CHARGING THE JURY.

"III. APPELLANT WAS DENIED HIS RIGHT BECAUSE OF INEFFECTIVE ASSISTANCE OF COUNSEL."

State v. Harper, 2013 WL 5536938, at *1-3 (Guernsey Co. App. Oct. 2, 2013). Prior to the issuance of the superseding opinion, which was issued only to correct non-substantive errors, on September 9, 2011, the state appellate court dismissed the appeal. State v. Harper, 2011 WL 4011642 (Guernsey Co. App. Sept. 9, 2011).¹ On February 1, 2012, the Ohio Supreme Court declined review. State v. Harper, 131 Ohio St.3d 1438 (Feb. 1, 2012).

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On November 7, 2011, Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Doc. 20-1, PageID# 767. On November 28, 2011, the appellate court denied the Rule 26(B) application. Id., PageID# 788. On December 20, 2011, Petitioner filed a motion to object to the denial and a motion to amend. Id., PageID# 795, 798. On January 9, 2012, the appellate court denied the motions. Id., PageID# 804. Detailing other procedural developments, the Fifth District Court of Appeals recited that:

On November 22, 2011, Petitioner filed a Motion for Sentence Reduction in the trial court. The trial court denied the Motion for Sentence Reduction on January 10, 2012.

On January 19, 2012, appellant filed a Petition for Post-Conviction Relief. Appellant alleged that the trial court had erred in failing to inform his wife, Tina Harper, that she did

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