Hawkins v. Shoop

• Decision Date: 04 December 2019
• Docket Number: Case No. 3:19-cv-072
• Parties: BRIAN HAWKINS, Petitioner, v. TIMOTHY SHOOP, Warden, Chillicothe Correctional Institution Respondent.
• Court: U.S. District Court — Southern District of Ohio

BRIAN HAWKINS, Petitioner, v. TIMOTHY SHOOP, Warden,Chillicothe Correctional Institution Respondent.

Case No. 3:19-cv-072

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

December 4, 2019

District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Brian Hawkins pursuant to 28 U.S.C. § 2254. Hawkins seeks relief from his convictions for rape and kidnapping in the Common Pleas Court of Montgomery County, Ohio. The case is ripe for consideration on the Petition (ECF No. 3), the State Court Record (ECF No. 10), the Return of Writ (ECF No. 11), and Petitioner's Reply (ECF No. 18).

Litigation History

Hawkins was indicted in May 2015 for the July 2002 rape and kidnapping of A.J., a person then fifteen years old. After his motion to dismiss for lack of a speedy trial was denied, Hawkins was convicted by a jury. The trial judge then merged the rape and kidnapping counts and sentenced him to ten years' imprisonment.

Hawkins appealed to the Second District Court of Appeals which affirmed the trial court judgment. State v. Hawkins, 2018-Ohio-867 (Ohio App. 2^nd Dist. Mar. 9, 2018), appellate jurisdiction declined, 153 Ohio St.3d 1453, 2018-Ohio-3026 (2018). On June 11, 2018, Hawkins filed an Application to Reopen his direct appeal to raise nine assignments of error the omission of which allegedly constituted ineffective assistance of appellate counsel. On July 11, 2018, he filed another such application with eleven omitted assignments of error. The Second District dismissed both of these as untimely and Hawkins did not appeal to the Supreme Court of Ohio.

While the direct appeal was pending, Hawkins filed a petition for post-conviction relief under Ohio Revised Code § 2953.21. That petition remained pending when the Return of Writ was filed here on August 14, 2019 (ECF No. 11, PageID 2241).

Hawkins' Petition here, purportedly mailed March 11, 2019, pleads the following grounds for relief:

Ground 1: The trial court erred in overruling Mr. Hawkins' motion to dismiss, as the thirteen year [sic] pre-indictment delay caused actual prejudice to his right to a fair trial; thus violating his due process rights.

Supporting Facts: Thirteen year [sic] pre-indictment delay, without new evidence.

Prosecutor claimed original casefile, mental health and hospital records missing.

Witnesses deceased and/or unavailable.

Alleged victim not remember incident [sic] and provided inconsistent testimony.

Ground 2: The trial court erred in finding Mr. Hawkins guilty of rape and kidnap as the convictions are against the manifest weight of the evidence.

Supporting Facts: Physical evidence supports events as described by petitioner.

Alleged victim not remember incident [sic] and provided inconsistent testimony.

Court cut short defendant-petitioner's testimony.

Counsel failed to provide notes of investigator's conversations with alleged victim, subsequently hindering trial counsel from effective cross-examination

Ground 3: The cumulative effect of errors deprived Mr. Hawkins of a fair trial warranting a reversal under the cumulative error doctrine.

Supporting Facts: Thirteen year [sic] pre-indictment delay, without new evidence.

Inconsistent testimony.

Court violated state statutes and rules of evidence.

Prosecutorial misconduct, including manipulation, fabrication and loss of evidence/Brady violation.

Ineffective assistance of counsel.

Ground 4: Hawkins' convictions were based upon insufficient evidence.

Supporting Facts: No physical evidence.

Alleged victim not remember incident [sic] and testimony inconsistent and inconclusive with itself.

Withheld exculpatory Brady material.

Prosecutorial misconduct manipulated and fabricated evidence.

Alleged crime scene viewed by jury had significantly changed after thirteen years.

Exculpatory evidence withheld.

Ground 5: Hawkins' counsel provided constitutionally ineffective assistance under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article I, Sec. 10 and 16 of the Ohio Constitution.

Supporting Facts: Trial counsel failed to call alleged victim to testify at hearing of motion to dismiss; erred requesting for jury viewing of alleged crime scene that had significantly changed after thirteen years; failed to argue for relevant exculpatory evidence; failed to provide specific notes in order to effectively cross-examine key witness; failed to object to court's violations of state statutes and rules of evidence; failed to object to many instances of prosecutorial misconduct.

Ground 6: The trial court denied Hawkins his right to due process and a fair trial in violation of the Fifth and Fourteenth Amendment to the United States Constitution and Article I, Sec. 16 of the Ohio Constitution.

Supporting Facts: Trial court permitted viewing of alleged crime scene that had significantly changed after thirteen years; cut short the testimony of defendant-petitioner in pretrial motion to dismisshearing, as well as during trial; violated Ohio statutes and rules of evidence.

Ground 7: Prosecutor misconduct so infected these proceedings with unfairness as to make the resulting conviction a denial of due process.

Supporting Facts: Prosecutor withheld exculpatory evidence, violating Brady; misrepresented evidence; produced false evidence.

Ground 8: Appellate counsel was ineffective for failing to present issues not fully considered that should have been that prove an unreliable process was used to obtain a wrongful criminal conviction prejudicing appellate [sic].

Supporting Facts: Appellate counsel failed to properly and thoroughly demonstrate in detail issues as well as dead bang winning issues specifically requested by defendant-petitioner that show due process violations were used to unconstitutionally convict defendant-petitioner, inter alia: trial counsel was unprepared at motion to dismiss hearing and at trial; trial counsel failed to object to many due process violations, including thirteen year [sic] pre-indictment delay, hearsay, confrontation, prosecutorial misconduct that materially influenced trial; trial counsel failed to investigate case, including not motioning for discovery, or Brady exculpatory evidence; trial counsel failed to object to trial court's plain errors, including unconstitutional sidebars and violations of Ohio statutes; trial court failed to issue and trial counsel failed to request necessary case specific jury instructions; appellate counsel also failed to use 11-R evidence trial court specifically reserved for appeal; trial and appellate counsel refused to provide defendant-petitioner with all judgment entries and transcripts of proceedings.

(Petition, ECF No. 3, PageID 39-52.)

Analysis

Although Hawkins pleads eight numbered grounds for relief, many of his grounds contain sub-claims which are logically and legally related to different constitutional rights than the right claimed in the ground itself. The Magistrate Judge believes it will be useful to eliminate fromfurther consideration those claims and sub-claims which have not been preserved for decision on the merits.

Cognizability

Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 6 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Barclay v. Florida, 463 U.S. 939 (1983); Smith v. Phillips, 455 U.S. 209, 221 (1982). "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.).

Several of the claims made by Hawkins are not for federal constitutional violations and therefore not cognizable in this proceeding. They are as follows:

Ground Two claims that Hawkins' conviction is against the manifest weight of the evidence. A weight of the evidence claim is not a federal constitutional claim. Johnson v. Havener, 534 F.2d 1232 (6^th Cir. 1986); Ob'Saint v. Warden, Toledo Correctional Inst., 675 F.Supp.2d 827, 832 (S.D. Ohio 2009).

Ground Three makes a claim of cumulative error. As in Sheppard v. Bagley, 657 F.3d 338, 348 (6^th Cir. 2011), Hawkins "argues that the cumulative effect of these errors rendered his trial fundamentally unfair." Id. Post-AEDPA, however, that claim is not cognizable in habeas corpus. Id., citing Moore v. Parker, 425 F.3d 250, 256 (6^th Cir. 2005). Cumulative error claims are not cognizable because the Supreme Court has not spoken on the issue. Williams v. Anderson, 460F.3d 789, 816 (6^th Cir. 2006), citing Moore, supra.

Grounds Two and Three should therefore be dismissed for failure to state a federal constitutional claim on which relief can be granted in a habeas corpus case.

Procedural Default

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

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, 86-87 (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...