Hill v. Knab

• Decision Date: 01 November 2012
• Docket Number: CASE NO. 2:11-CV-755
• Parties: MARK A. HILL, Petitioner, v. ROBIN KNAB, WARDEN, Chillicothe Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

MARK A. HILL, Petitioner,

v.ROBIN KNAB, WARDEN, Chillicothe Correctional Institution, Respondent.

CASE NO. 2:11-CV-755

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

November 1, 2012

JUDGE GRAHAM

MAGISTRATE JUDGE KING

ORDER and

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Doc. No. 3, Respondent's Return of Writ, Doc. No. 12, Petitioner's Traverse, Doc. No. 18, and the exhibits of the parties. For the reasons that follow, Petitioner's Motion to Expand the Record, Doc. No. 17, is GRANTED in part and DENIED in part. The Magistrate Judge RECOMMENDS that this action be DISMISSED.

FACTS and PROCEDURAL HISTORY

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:

On the evening of March 4, 2008, Hill and his friend, Rondale Massey ("Rondale"), arrived at Brew-Stirs shortly after 8:00 p.m. and began drinking pitchers of beer. Hill had consumed approximately seven alcoholic beverages that day before arriving at Brew-Stirs. Sometime after 11:00 p.m., Michael [Newman] and his girlfriend, Angela Theado ("Angela"), Kyle [Smith] and his girlfriend, Emily Boyle ("Emily"), and several of Angela's co-workers arrived at Brew-Stirs to sing karaoke. Hill testified that, during the course of the evening, he flirted with the girls in that group. Toward the end of the evening, Hill bought Emily a shot, which she accepted. There was no conflict in the bar throughout the evening.

After last call, Hill followed Emily outside, where Emily immediately joined Michael and Angela who were standing to the left of the front door. There was testimony that Kyle was also outside, leaning against the building, although Hill did not see him. Sensing that Emily wanted someone to intervene between her and Hill, Michael stepped in front of Hill, and a struggle ensued. Michael testified that the two began to struggle after Hill grabbed Michael's jacket. Hill described the struggle as "a shoving match," but did not know who started it. (Tr. 449, 493.) Hill testified that, during the shoving match, he was "suckerpunched from the left side of [his] body in the face" by an unknown person and grabbed Michael to keep his balance, but he was being forced toward the ground. (Tr. 449.) At that moment, Hill grabbed the box cutter that he routinely carried in a sheath on his belt and, with his right hand, threw a punch with it. Michael initially thought he had simply been punched, but, when Hill raised his arm again, he saw the box cutter and began to taste blood. Michael was cut from the apple of his left cheek down through his upper lip. Michael denied that anyone else was involved in the struggle before Hill cut him.

After being cut, Michael grabbed Hill's wrist and tried to pin him to the wall, at which time Kyle intervened and tried to tackle Hill and Michael from the left. In the fall, Michael lost his grip on Hill's right hand, which held the box cutter, and he suffered a cut on his hand. With his right hand free, Hill began slashing with the weapon. Hill testified, "I had been forced physically to the ground by two individuals, so I guess I'm swinging both hands, basically trying, I guess, to punch fight" with the box cutter. (Tr. 455.) Michael testified that Hill slashed at Kyle's head, that "Kyle was retreating and holding his arms with his elbows bent around his head," and that Kyle exclaimed, " 'I'm cut.'" (Tr. 53-54.) Kyle testified that he felt the left side of his face become "really hot" and, looking down, noticed his coat was "soaked with blood." (Tr. 192.) Kyle sustained two approximately two-inch cuts above his right ear, under the hairline, and the cuts required staples.

As Hill was slashing at Kyle, Michael flipped Hill face down onto the ground, elbowed him in the back of the head three to four times, knocked the box cutter from his hand, and hit him three to four more times in the back of the head to ensure "that he was unconscious and not going to continue the fight." (Tr. 55.) After Michael backed away from Hill, taking Angela with him, Rondale picked Hill up, and the two walked southbound on the sidewalk, leaving footprints in the snow. After the police arrived and spoke with witnesses, OfficerTodd Aiello followed the footprints in the snow to a parked white van several streets away. One set of footprints went toward the driver's side of the van, and the other went toward the passenger side. Officer Aiello observed two men asleep in the van and called for backup, after which both Hill and Rondale were arrested. Despite initially lying to detectives about his involvement in the fight, at trial Hill admitted his involvement, but argued that he acted in self-defense.¹

State v. Hill, No. 09AP-398, 2010 WL 1510199, at *1-2 (Ohio App. 10th Dist. April 15, 2010). Petitioner filed a timely appeal, in which he raised the following assignments of error:

1. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL[.]

2. APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]

3. APPELLANT'S GUILTY VERDICT WAS STATUTORILY DEFECTIVE AND VOID[.]

Id. at *2. On April 15, 2010, the appellate court affirmed the judgment of the trial court. Id. On August 25, 2010, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Hill, 126 Ohio St.3d 1549 (2010).

On May 17, 2010, Petitioner filed an application for reconsideration of the appellate court'sApril 15, 2010, decision denying his appeal and request for enlargement of time to file his request. Exhibit 24 to Return of Writ. On June 29, 2010, the appellate court denied his application for reconsideration and request for enlargement of time. Exhibit 27 to Return of Writ. Petitioner filed a motion to certify conflict. Exhibit 28 to Return of Writ. On August 19, 2010, the appellate court denied Petitioner's motion. Exhibit 29 to Return of Writ. Petitioner did not timely appeal. On October 27, 2010, the Ohio Supreme Court denied his motion for delayed appeal. Exhibit 40 to Return of Writ.

On July 13, 2010, Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). Petitioner asserted that he had been denied the effective assistance of counsel because his attorney failed to raise the following assignments of error on direct appeal:

1. Prosecutorial misconduct deprived the Appellant of due process, equal protection of the laws and a fair trial.

2. Appellant was deprived of equal protection of the laws and a fair trial where evidence presented supported affirmative defenses.

3. The trial court's abuses of discretion denied Appellant of due process, equal protection of the laws and a fair trial.

4. Plain errors and structural errors deprived the Appellant of his constitutional rights to due process, equal protection of the laws and a fair trial.

Exhibit 30 to Return of Writ. On October 14, 2010, the appellate court denied Petitioner's Rule 26(B) application. Exhibit 31 to Return of Writ. On February 2, 2011, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. Exhibit 43 to Return of Writ.

On August 22, 2011, Petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of Respondent in violation of the Constitution of the United States based upon the following grounds:

1. The trial court prejudiced Petitioner when denying him the Sixth Amendment to the U.S. Constitution right to a speedy trial.

2. Petitioner was prejudiced and denied equal protection of the laws when not afforded a speedy trial in violation of the Sixth, Ninth & Fourteenth Amendments to the U.S. Constitution.

3. The trial court fraudulently misrepresented a material fact to intentionally deny Petitioner of the right to a speedy trial as established by the Sixth Amendment to the U.S. Constitution.

4. The trial court denied Petitioner the Ninth & Fourteenth Amendments to the U.S. Constitution right to equal protection of the laws when permitting deficient defense counsel, by fraudulent misrepresentation of material facts, to waive his speedy trial right without his knowledge, outrageous government conduct.

5. Petitioner was denied his Batson protections to a fair and impartial jury of his peers and due process when ineffective defense counsel waived the preservation of voir dire on the record, in violation of the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution.

6. Petitioner was prejudiced and denied the Ninth and Fourteenth Amendment to the U.S. Constitution right to equal protection of the laws when the trial court permitted use of a motion for continuance form that fraudulently waived Petitioner's Sixth Amendment to the U.S. Constitution speedy trial right automatically, without consent.

7. Prosecutorial misconduct denied Petitioner a fair and speedy trial, effective assistance of defense counsel, due process and equal protection of the laws, in violation of the Fifth, Sixth, Ninth and Fourteenth Amendments to the U.S. Constitution, through the intentional delay in providing discovery material as required by rule, demonstrating outrageous government conduct.

8. The trial court demonstrated bias and prejudice by refusing to rule upon Petitioner's pre-trial motion to dismiss for violation of the speedy trial provision as afforded by the Sixth and Fourteenth Amendments to the U.S. Constitution, the non-performance demonstrating outrageous government conduct.

9. Petitioner was denied effective assistance of counsel, a fair trial, due process and equal protection of the laws from defense counsel's failure to perform the constitutionally impose[d] duty to conduct pre-trial investigations and preparations necessary to the compulsory process, in violation of the Fifth, Sixth, Ninth and Fourteenth Amendments to the U.S. Constitution.

10. Excessive bail deprived Petitioner the guarantee of a

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