Johnson v. Foley
| Decision Date | 08 March 2021 |
| Docket Number | Case No. 1:19-cv-984 |
| Parties | Marvin F. Johnson, Sr., Petitioner, v. Keith J. Foley, Warden, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
Petitioner Marvin F. Johnson, Sr., has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, concerning his conviction in the Cuyahoga County, Ohio Court of Common Pleas on charges of drug trafficking, drug possession, and possession of criminal tools. (Doc. No. 1). Magistrate Judge James R. Knepp, II, reviewed the petition as well as the related briefing pursuant to Local Rule 72.2(b)(2) and recommends I deny Johnson's petition. (Doc. No. 18). Johnson filed objections to Judge Knepp's Report and Recommendation. (Doc. No. 20). For the reasons stated below, I overrule Johnson's objections and adopt Judge Knepp's Report and Recommendation.
On February 13, 2015, officers with the Euclid, Ohio Police Department executed a search warrant at a house on Oriole Avenue in Euclid. The search warrant was the result of a nearly year-long investigation into reports of drug trafficking at the house, which culminated in a controlled buyby a confidential informant two days before the search warrant was issued. State v. Johnson, 2018-Ohio-169, 2018 WL 46073, at *3-4 (Ohio Ct. App. Jan.18, 2018). Johnson was arrested at the house and subsequently indicted on charges of drug trafficking, drug possession, and possession of criminal tools.
Johnson filed a motion to suppress the evidence obtained during the search of the house, arguing the search warrant affidavit contained materially false statements or omissions made with reckless disregard for the truth and lacked probable cause because it did not contain evidence of ongoing drug trafficking. Id. at *2. The trial court overruled Johnson's motion following a hearing, concluding (a) the search warrant contained fresh information (the recent controlled buy), and (b) any vague background information "was mere surplusage and did not form the basis for issuance of the search warrant." (Doc. No. 7-1 at 37).
Johnson then entered a plea of no contest to all three counts of the indictment. (Id. at 38). The trial court concluded the drug trafficking and drug possession counts merged for the purpose of sentencing. (Id.). The trial court sentenced Johnson to a six-year prison term but placed him on supervised release and electronic monitoring so he could undergo surgery for a serious heart condition. State v. Johnson, 2018 WL 460743, at *1. The trial court ordered Johnson to begin serving his prison term on August 1, 2016, as his heart surgery was scheduled for July 22, 2016. Id. Further, the trial court stated the sentence would be "vacated and [a] new sentence . . . imposed" if Johnson did not report to begin serving his sentence on August 1. (Doc. No. 7-1 at 39).
Shortly before his surgery, Johnson tested positive for marijuana and the trial court set a bond hearing for July 25. Johnson did not appear for the bond hearing because he was recovering from surgery, but his attorney failed to notify the trial court that he was not able to appear. State v. Johnson, 2018 WL 460743, at *1. The trial court revoked his bond and issued a capias warrant. Johnson also did not report for his prison term on August 1, while continuing his post-surgical care.Id. Johnson eventually contacted the court by letter, asserting he did not appear for his sentence because he still was under the care of his cardiac specialist. (Doc. No. 7-1 at 45-46). The trial court held another sentencing hearing in February 2017 and, after vacating Johnson's initial prison term, sentenced him to a total of eight years in prison and five years post release control. (Id. at 54).
Johnson appealed, raising assignments of error concerning the denial of his suppression motion and his resentencing. State v. Johnson, 2018 WL 460743, at *1. The Eighth District Court of Appeals ruled the trial court lacked the authority to vacate Johnson's initial sentence and to resentence him but otherwise rejected Johnson's arguments on appeal. Id. at *7.
Johnson unsuccessfully pursued a variety of appeals and post-conviction motions. (See Doc. No. 18 at 7-12). The trial court ultimately re-instated Johnson's original six-year prison term.
On August 8, 2019, the trial court also denied Johnson's motion to withdraw his no contest plea. (Doc. No. 7-1 at 838). The Eighth District Court of Appeals affirmed, reasoning the motion was barred by the doctrine of res judicata. State v. Johnson, 2020-Ohio-3892, 2020 WL 4370158 (Ohio Ct. App. July 30, 2020).
Johnson does not object to Judge Knepp's description of the factual and procedural background of his state court proceedings. Therefore, I adopt those sections of the Report and Recommendation in full. (Doc. No. 18 at 2-15).
Once a magistrate judge has filed a report and recommendation, a party to the litigation may "serve and file written objections" to the magistrate judge's proposed findings and recommendations, within 14 days of being served with a copy. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2). Written objections "provide the district court 'with the opportunity to consider the specific contentions of the parties and to correct any errors immediately' . . . [and] 'to focus attention on those issues — factual and legal — that are at the heart of the parties' dispute.'" Kelly v. Withrow, 25F.3d 363, 365 (6th Cir. 1994) (). A district court must conduct a de novo review only of the portions of the magistrate judge's findings and recommendations to which a party has made a specific objection. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") prohibits the issuance of a writ of habeas corpus "with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:
28 U.S.C. § 2254(d). "The prisoner bears the burden of rebutting the state court's factual findings 'by clear and convincing evidence.'" Burt v. Titlow, 571 U.S. 12, 18 (2013) (quoting 28 U.S.C. § 2254(e)(1)).
Johnson presents the following grounds for relief:
Judge Knepp recommends I conclude Johnson's claims are not cognizable in habeas proceedings, were procedurally defaulted, or lack merit. (Doc. No. 18). Johnson objects to Judge Knepp's recommendations, except for his recommendation concerning Ground Two. Johnson "concedes there was no prejudice stemming from counsel's deficient representation" and thus has waived review of Judge Knepp's recommendation concerning Ground Two. (Doc. No. 20 at 2).
In addition to the recommendations and objections I discuss below, Johnson also objects, (Doc. No. 20 at 8), to Judge Knepp's denial of his motion for an evidentiary hearing. (Doc. No. 18 at 35). Johnson fails to show he is entitled to an evidentiary hearing on any of his claims and, therefore, I overrule his objection.
Judge Knepp recommends I conclude the claims Johnson presents in Grounds One and Three are not cognizable in habeas proceedings under Stone v. Powell, 428 U.S. 465 (1976). (Doc. No. 18 at 20-23). Johnson objects, arguing Ground One has merit and Ground Three is cognizablebecause "the Appellate Review process of his 4th and 14th Amendment claim was a (sham) proceeding." (Doc. No. 20 at 1).
A federal habeas court's review of a petitioner's state court Fourth Amendment suppression claim can be summed up in this manner: "Did the state courts permit the defendant to raise the claim or not?" Good v. Berghuis, 729 F.3d 636, 640 (6th Cir. 2013) (citing Stone v. Powell, 428 U.S. 465 (1976)). Johnson filed a motion to suppress evidence obtained pursuant to the search warrant, arguing it lacked probable cause and contained materially false statements or...
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