Housing v. Erdos

• Decision Date: 12 January 2016
• Docket Number: Case No. 1:14-cv-956
• Parties: MARCO DWAYNE HOUSTON, Petitioner, v. RON ERDOS, Warden, ALLEN/OAKWOOD Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

MARCO DWAYNE HOUSTON, Petitioner, v. RON ERDOS, Warden,ALLEN/OAKWOOD Correctional Institution, Respondent.

Case No. 1:14-cv-956

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

January 12, 2016

District Judge Sandra S. Beckwith

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Marco Dwayne Houston, is before the Court for decision on the merits on the Petition (ECF No. 1), the Return of Writ and State Court Record (ECF Nos. 7,8), and the Reply ("Traverse," ECF No. 13).

Petitioner's grounds for relief as pled in the original Petition are:

GROUND ONE:Fourth Amendment Search and Seizure claim - The state trial court improperly denied Petitioner Marco Dwayne Houston's ("Petitioner Houston") motion to suppress when the seizure of Petitioner extended beyond the time necessary to effectuate a misdemeanor parking violation pursuant to Townsend, Bonilla and their progeny. All evidence obtained thereof by the resultant illegal searches were fruit of the poisonous tree.

Supporting Facts: Petitioner Houston was illegally arrested as the result of an unlawful search and seizure under the false premise of a parking violation. Petitioner Houston was ticketed under a local ordinance for parking more than twelve inches from a curb contrary to Ohio Revised Code Section 4511.69 and local Portsmouth (Ohio) City Ordinance 351.04. Petitioner Houston was not in the vehicle, and exited the residence in which the vehicle was parked in front of when the officers arrived. Petitioner Houston was thereby subjected to a pat down search revealing nothing, and provided the officers identification. A drug dog was brought in while an officer was allegedly calling Petitioner Houston's identification in for verification. Rather than allowing Petitioner Houston to move the car, the officer made Petitioner Houston sit on the grass, alleging that Petitioner Houston kept trying to walk away. The dog alerted on the car, and a search revealed contraband drugs and money.

GROUND TWO:Fifth, Sixth and Fourteenth Amendments Ineffective Assistance of Counsel during suppression phase of state trial court proceeding- State trial counsel inadequately prepared and ineffectually argued the suppression motion in behalf of Petitioner Houston, and allowed and advised Petitioner Houston to withdraw his no contest plea and to plead guilty thereby waiving the issue.

Supporting Facts: At a pretrial hearing before the state trial court, Petitioner Houston balked at pleading guilty; the trial court thereby revoked Petitioner Houston's bond/bail until Petitioner Houston would so plead. When Petitioner Houston sought to terminate his retained counsel and hire new representation, the state trial court refused to allow Petitioner Houston to do so, and even vouched for the attorney alleging that the state trial court had known Petitioner Houston's retained state trial counsel for thirty years. Petitioner Houston initially plead no contest but changed his plea to guilty after said state trial attorney specifically counseled and assured Petitioner Houston that pleading guilty would preserve his right to appeal the suppression at issue just as well as a no contest plea.

GROUND THREE:Fifth, Sixth and Fourteenth Amendments Due Process, Equal Protection of the Law and Double Jeopardy Clause violation claim involving charges of similar import, where state trial court committed plain error in sentencing - The state trial court was required to merge the multiple offenses at Petitioner Houston's sentencing, pursuant to the Due Process, Equal Protection and Double Jeopardy Clauses and the protected liberty interest of Ohio Revised Code Sections 2941.25 and 2953.08(D)(l), where said offenses were not committed separately or with a separate animus.

Supporting Facts: During the sentencing phase of proceedings, the state trial court did not specify, mention, nor was any testimony provided that it found one or more factors demonstrating that the convictions took place at separate times and place, as required bylaw. Also, the trial court never stipulated that Petitioner Houston's sentence would be imposed under crimes of dissimilar import, as further required by Ohio Revised Code Section 2953.08(D)(l).

GROUND FOUR:Sixth and Fourteenth Amendments Due Process and Equal Protection of the Law claim, where state trial court violated right to a knowing, intelligent and voluntary plea under Crim.R. 11(C).

Supporting Facts: The state trial court failed to adequately inform Petitioner Houston of the nature of the charges and the consequences of his plea relevant to the elements and degree of felony associated with his plea, thereby amounting to a structural constitutional deprivation requiring Petitioner Houston's plea be vacated. Where the state trial court completely mislead Petitioner Houston regarding the felony degree of the charge and the maximum sentence the trial court failed to substantially comply with the provisions of Crim. R. 11(C).

GROUND FIVE:Sixth and Fourteenth Amendments Due Process and Equal Protection of the Law claim, where state appellate counsel failed to raise issue regarding state trial court's plain error in sentencing.

Supporting Facts: Where the trial court failed to make the necessary findings pursuant to Crim.R. 11(C) and the protected liberty interest of Ohio Revised Code Section 2929.14(C)(4), Petitioner Houston was denied due process and equal protection of the law where his appellate counsel was ineffective for failure to raise the issue of the state trial court's imposition of consecutive sentences.

GROUND SIX:Sixth and Fourteenth Amendments Due Process and Equal Protection of the Law claim, where state appellate counsel failed to raise issue regarding state trial counsel's failure to request a Franks hearing.

Supporting Facts: As opposed to a mere traffic stop, the police committed perjury to contrive probable cause where probable cause failed to exist. Had Petitioner Houston been afforded a Franks hearing then he would have been able to demonstrate the illegality of the search and seizure. Appellate counsel's failure to raise this claim amounts to ineffective assistance of counsel.

GROUND SEVEN:Sixth and Fourteenth Amendments Due Process and Equal Protection of the law claim, where state appellate court committed plain error in failing to grant Petitioner Houston's App.R.26(B) application to reopen on the ineffective assistance of appellate counsel claims relevant to failure to raise an issue as the state trial court's imposition of consecutive sentences, and the failure to argue ineffective assistance of state trial counsel relevant to the Franks hearing.

Supporting Facts: The Ohio appellate court's denial of Petitioner Houston's application to reopen his appeal under App.R. 26(B) on the issue of the state appellate counsel's failure to raise issues of trial court's imposition of multiple convictions and consecutive sentences where offenses were not committed separately or with a separate animus, and the failure to argue that Petitioner Houston's trial counsel was ineffective for failing to request a Franks hearing.

(Petition, ECF No. 1.)

Procedural and Factual History

Houston was originally indicted by the Scioto County Grand Jury in 2011 on two counts of trafficking in drugs (Ohio Revised Code 2925.03(A)(2)/(C)(1)(e) and 2925.03(A)(2)/(C)(1)(d))(Counts 1 and 3); two counts of possession of drugs (Ohio Revised Code 2925.11(A)(C)(1)(d) and 2925.11(A)/(C)(1)(c))(Counts 2 and 4); possession of criminal tools (Ohio Revised Code 2923.24(A)/(C))(Count 5); conspiracy to traffic in drugs (Ohio Revised Code 2923.01 and 2925.03(A)/(C)(3)(c)) (Count 6); and tampering with evidence (Ohio Revised Code 2921.12(A)(1))(Count 7). The indictment also contained a forfeiture specification. Following the denial of Houston's motion to suppress, Houston entered a no contest plea to Counts 1, 4 and 7 which the court accepted and sentenced Houston to an aggregate sentence of10 years with payment of costs and a fine.

Houston appealed to the Court of Appeals of Ohio, Fourth Appellate District, Scioto County, raising the following assignments of error:

1. The trial court improperly denied defendant's motion to suppress when the seizure of defendant extended beyond the time necessary to effectuate the parking violation at issue pursuant to Townsend, Bonilla and progeny as well as Ohio law and any evidence obtained by the resultant searches were fruit of the poisonous tree.

2. Appellant was denied effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution when trial counsel inadequately prepared and ineffectually argued the suppression motion, and allowed and/or advised defendant to withdraw his "no contest plea" and to plead guilty thereby waiving the issue.

3. Trial court committed plain error in sentencing defendant on three separate charges of similar import that he could only be found guilty of only one [sic] and sentenced for only one rendering unauthorized imposed sentence a nullity or void.

(State Court Record, ECF No. 7, Exh. 7, PageID 84.)

The Fourth District set forth the facts of this case on direct appeal as follows:

[*P3] At the suppression hearing, Officer Tiffany Hedrick ("Hedrick") of the Portsmouth Police Department testified on September 9, 2011, she was on routine patrol in the "East End" of Portsmouth at 9:20 a.m. when she observed a white Chevrolet Malibu parked at an angle, obstructing traffic. The vehicle's right front tire was over twelve inches from the curb and the right rear tire approximately two to three feet from the curb. R.C. 4511.69 and Portsmouth City Ordinance 351.04 prohibit parking more than twelve inches from the curb. The "East End" is known as a high crime area due to the volume of crimes involving prostitution, drugs, thefts, and

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