Jordan v. Warden

• Decision Date: 21 March 2018
• Docket Number: Case No. 1:17-cv-054
• Parties: CURTIS A. JORDAN, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

CURTIS A. JORDAN, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

Case No. 1:17-cv-054

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

March 21, 2018

Dlott, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

Petitioner, an inmate in state custody at the Chillicothe Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on respondent's return of writ and petitioner's reply. (Doc. 11, 17).¹

I. PROCEDURAL HISTORY

State Trial Proceedings and Direct Appeal

On August 15, 2013, the Scioto County, Ohio, grand jury returned a one-count indictment charging petitioner with burglary. (Doc. 11, Ex. 1). Petitioner, through counsel, entered a plea of not guilty. On October 7, 2013, the grand jury issued a superseding indictment, charging petitioner with a single count of burglary with a repeat violent offender specification. (Doc. 11, Ex. 3).

On October 31, 2013, petitioner, through counsel, withdrew his original not-guilty plea and entered a plea of guilty to burglary with a repeat violent offender specification. (Doc. 11, Ex. 4). The trial court accepted his plea and found petitioner guilty as charged in the indictment. On November 7, 2013, petitioner was sentenced to a total aggregate prison sentence of fourteen years in the Ohio Department of Corrections. (Doc. 11, Ex. 5). Petitioner received an eight year sentence on his burglary conviction and six years on the repeat violent offender specification.(Id.).

Petitioner filed a pro se notice of appeal to the Ohio Court of Appeals. (Doc. 11, Ex. 6). Petitioner, through different counsel, subsequently raised the following assignment of error in his appellate brief:

The trial court erred when it sentenced Curtis A. Jordan to six years of incarceration as a repeat violent offender without first making the findings required by R.C. § 2929.14(B)(2)(a). (P.H. at 7-10; S.H. at 2-7, 13-4, 18-21).

Issue Presented for Review: Did the trial court err in sentencing Mr. Jordan to six years as a repeat violent offender without making the required findings?

(Doc. 11, Ex. 7). On December 3, 2015, the Ohio appeals court affirmed the judgment of the trial court. (Doc. 11, Ex. 10). Petitioner filed a pro se motion for reconsideration (Doc. 11, Ex. 11), which was overruled by the court on February 3, 2016. (Doc. 11, Ex. 14).

Ohio Supreme Court

Petitioner filed a pro se appeal to the Ohio Supreme Court. (Doc. 11, Ex. 15). In his memorandum in support of jurisdiction, petitioner raised the following single proposition of law:

Proposition of Law: The trial court erred when it sentenced the appellant to six years of incarceration as a repeat violent offender without first making the findings required by R.C. § 2929.14(B)(2)(a).

Issue Presented for Review: Did the trial court err in sentencing the appellant to six years as a repeat violent offender without making the required findings?

(Doc. 11, Ex. 16 at PageID 176). On June 29, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. (Doc. 11, Ex. 18).

Motion to Certify a Conflict

Meanwhile, on February 16, 2016, petitioner filed a pro se motion to the Ohio Court of Appeals to certify a conflict. (Doc. 11, Ex. 19). Petitioner's motion was denied by the Ohioappeals court on April 20, 2016. (Doc. 11, Ex. 22).

Application to Reopen Appeal

Petitioner also filed an application to reopen his appeal pursuant to Ohio R. App. P. 26(B) on February 24, 2016. (Doc. 11, Ex. 23). Petitioner argued that his appellate counsel was ineffective for failing to raise the following two assignments of error:

A. The Appellant's First Assignment of Error: Ineffective assistance of appellate counsel.

Issues present[ed] for review:

(1) Whether Mr. Goldmeier is ineffective because he failed to raise the issue of ineffective assistance of trial counsel in the appellant's direct appeal?

(2) Whether Mr. Goldmeier is ineffective because he failed to raise the issue of prosecutorial misconduct in the appellant's direct appeal?

B. The Appellant's Second Assignment of Error: Ineffective assistance of appellate counsel.

Issues present[ed] for review:

(1) Whether Mr. Goldmeier is ineffective because he failed to raise the issue of the sufficiency of the evidence in the appellant's direct appeal?

(2) Whether Mr. Goldmeier is ineffective because he failed to raise the issue that the trial court abused its discretion in the appellant's direct appeal regarding multiple issues?

(3) Whether Mr. Goldmeier is ineffective because he failed to raise the issue that the appellant's sentence is contrary to law?

(Id.). On April 27, 2016, the Ohio Court of Appeals denied petitioner's application to reopen. (Doc. 11, Ex. 25).

On April 27, 2016, petitioner filed a pro se appeal from the Ohio Court of Appeals' denial of his application to reopen to the Ohio Supreme Court. (Doc. 11, Ex. 26). Petitioner raised the same assignments of error presented in his Rule 26(B) application as propositions of law. (See Doc. 11, Ex. 27 at PageID 244, 246). On July 27, 2016, the Ohio Supreme Courtdeclined to accept jurisdiction over the appeal. (Doc. 11, Ex. 29).

Federal Habeas Corpus

On January 20, 2017, petitioner commenced the instant federal habeas corpus action. (See Doc. 1). Petitioner raises the following four grounds for relief in the petition:

GROUND ONE: THE TRIAL COURT ERRED WHEN IT SENTENCED THE PETITIONER TO SIX YEARS OF INCARCERATION AS A REPEAT VIOLENT OFFENDER WITHOUT FIRST MAKING THE FINDINGS REQUIRED BY R.C. § 2929.14(B)(2)(a).

ISSUE PRESENT[ED] FOR REVIEW:

(1). DID THE TRIAL COURT ERR IN SENTENCING THE PETITIONER TO SIX YEARS AS A REPEAT VIOLENT OFFENDER WITHOUT MAKING THE REQUIRED FINDINGS?

GROUND TWO: INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

ISSUES PRESENT[ED] FOR REVIEW:

(1). WHETHER APPELLATE COUNSEL IS INEFFECTIVE BECAUSE HE FAILED TO RAISE THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN THE PETITIONER'S DIRECT APPEAL?

(2). WHETHER APPELLATE COUNSEL IS INEFFECTIVE BECAUSE HE FAILED TO RAISE THE ISSUE OF PROSECUTORIAL MISCONDUCT IN THE PETITIONER'S DIRECT APPEAL?

GROUND THREE: INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

ISSUES PRESENT[ED] FOR REVIEW:

(1). WHETHER APPELLATE COUNSEL IS INEFFECTIVE BECAUSE HE FAILED TO RAISE THE ISSUE OF THE SUFFICIENCY OF THE EVIDENCE IN THE PETITIONER'S DIRECT APPEAL?

(2). WHETHER APPELLATE COUNSEL IS INEFFECTIVE BECAUSE HE FAILED TO RAISE THE ISSUE THAT THE TRIAL COURT ABUSED ITS DISCRETION IN THE PETITIONER'S DIRECT APPEAL REGARDING MULTIPLE ISSUES?

(3). WHETHER APPELLATE COUNSEL IS INEFFECTIVE BECAUSE HE

FAILED TO RAISE THE ISSUE THAT THE PETITIONER'S SENTENCE IS CONTRARY TO LAW?

GROUND FOUR: THE PETITIONER'S DUE PROCESS AND EQUAL PROTECTION RIGHTS WERE VIOLATED BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ABANDONED ITS DUTY TO MAKE THE REQUIRED FINDINGS THAT IT MUST MAKE WHEN IT SENTENCED THE PETITIONER WITH REGARDS TO R.C. § 2929.14(B)(2)(A).

ISSUES PRESENT[ED] FOR REVIEW:

(1). WHETHER THE PETITIONER'S DUE PROCESS AND EQUAL PROTECTION RIGHTS WERE VIOLATED BECAUSE THE TRIAL COURT FAILED TO APPLY THE STATE'S SENTENCING STATUTE REQUIREMENTS DURING THE TIME THAT IT WAS SENTENCING THE PETITIONER?

(2). DOES THE PETITIONER'S GUILTY PLEA AND THE DOCTRINE OF INVITED ERROR ALLOW THE PETITIONER'S TRIAL COURT TO ABANDON MAKING THE FINDINGS THAT ARE REQUIRED BY THE STATE LEGISLATOR'S (sic) AND FOLLOWED BY THE ENTIRE STATE?

(Doc. 1 at PageID 26-27). As noted above, respondent has filed a return of writ in opposition to the petition, to which petitioner has filed a reply. (Doc. 11, 17).

II. THE PETITION SHOULD BE DENIED.

In this federal habeas case, the applicable standard of review governing the adjudication of constitutional issues raised by petitioner to the state courts is set forth in 28 U.S.C. § 2254(d). Under that provision, a writ of habeas corpus may not issue with respect to any claim adjudicated on the merits by the state courts unless the adjudication either:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d).

"A decision is 'contrary to' clearly established federal law when 'the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). "A state court's adjudication only results in an 'unreasonable application' of clearly established federal law when 'the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. at 599-600 (quoting Williams, 529 U.S. at 413).

The statutory standard, established when the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600. As the Sixth Circuit explained in Otte:

Indeed, the Supreme Court has been increasingly vigorous in enforcing AEDPA's standards. See, e.g., Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (holding that AEDPA limits a federal habeas court to the record before the state court where a claim has been adjudicated on the merits by the state court). It is not enough for us to determine that the state court's determination is incorrect; to grant the writ under this clause, we must hold that the state court's determination is unreasonable. . . . This is a "substantially higher threshold.". . . To warrant AEDPA deference, a state court's "decision on the merits" does not

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