Lawson v. Warden, Noble Corr. Inst.

• Docket Number: 3:22-cv-040
• Decision Date: 26 June 2023
• Parties: THOMAS W. LAWSON, Petitioner, v. WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

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THOMAS W. LAWSON, Petitioner, v. WARDEN, NOBLE CORRECTIONAL INSTITUTION, Respondent.

No. 3:22-cv-040

United States District Court, S.D. Ohio, Western Division

June 26, 2023

Michael J. Newman, Judge.

REPORT AND RECOMMENDATION

Elizabeth A. Preston Deavers, United States Magistrate Judge

Petitioner a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254. This matter has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and this Court's General Order 22-05. Pending before the Court are the Petition (ECF No. 1); Respondent's Return of Writ (ECF No. 10); Petitioner's Reply (ECF No. 13); and the state court record (ECF No. 9). For the reasons that follow, the Magistrate Judge RECOMMENDS that the Petition be DENIED and that this action be DISMISSED.

The Undersigned further RECOMMENDS that the Court decline to issue a certificate of appealability (“COA”).

I. Procedural History

The record reveals the following relevant procedural history, as summarized by the Ohio Court of Appeals, Second Appellate District. See State v. Lawson, 164 N.E.3d 1130, 1139-41 (Ohio Ct. App. Dec. 23, 2020). On June 21, 2019, Petitioner was arrested while driving a vehicle in Greene County in connection with an ongoing investigation in Montgomery County.^[1](ECF No. 9, PageID # 185.) Officers from Riverside, a city in Montgomery County, impounded the vehicle. (Id.) Petitioner told a Riverside detective that guns and drugs would be found in the vehicle. (Id.) After obtaining a search warrant, officers seized two firearms, a digital scale, and three baggies of drugs, later identified as 68 grams of heroin and fentanyl in one baggie; 5.5 grams of Tramadol, heroin, and fentanyl in another; and 3.6 grams of methamphetamine in the third baggie. (Id.)

On August 30, 2019, Lawson was indicted in Greene County for the improper handling of firearms in a motor vehicle, a felony in the fourth degree in violation of Ohio Revised Code (“O.R.C.”) § 2923.16(B); possession of a fentanyl-related compound and possession of heroin, first degree felonies in violation of O.R.C. § 2925.11(A); aggravated possession of drugs and possession of heroin, third degree felonies in violation of O.R.C. § 2925.11(A); trafficking in a fentanyl-related compound and trafficking in heroin, both felonies in the first degree with firearm specifications in violation of O.R.C. § 2925.03(A)(2); and a second degree felony escape charge in violation of O.R.C. § 2921.34(A)(1). (Id. at PageID ## 185-86.)

At his arraignment, Petitioner pled not guilty to all counts and trial was scheduled for November 12, 2019. (Id. at PageID # 186.) Petitioner moved for a continuance on November 8, 2019, and trial was rescheduled for January 13, 2020. (Id.) The trial was rescheduled again on November 25, 2019, for a new date of February 18, 2020. (Id.) On January 21, 2020, Petitioner's defense counsel was suspended from the practice of law for two years.

(Id. (citing Dayton Bar Assn. v. Sullivan, 158 Ohio St.3d 423, 2020-Ohio-124, 144 N.E.3d 401).) On January 29, 2020, an assistant public defender moved to be Petitioner's substitute counsel (id. at PageID # 57), which the trial court granted on February 5, 2020. (Id. at PageID # 60.)

The trial court held a status conference on February 6, 2020, and the following day, conducted a pre-trial hearing. (Id. at PageID # 186.) At the pre-trial hearing on February 7, 2020, the State offered Petitioner two plea deals, which he declined. (Id. at PageID ## 186-87.) The trial court and the parties discussed whether a continuance was needed for the scheduled trial on February 18, 2020. (Id. at PageID # 187.) Petitioner's new defense counsel assured the court he would be ready to proceed on that date if needed, though not to his normal standards for preparation. (Id. at PageID ## 187-88.) The trial court allowed Petitioner time to further consider his options and kept open the option of a continuance until the day of trial. (Id. at PageID # 188.) The trial court also extended the time for plea deals and filing pre-trial motions, though no additional motions were filed between the pre-trial hearing and the morning of trial. (Id. at PageID ## 188-89.)

On February 18, 2020, Petitioner ultimately confirmed he wanted to move forward with trial that day, despite some reservations about how best to proceed. (Id. at PageID # 189.) The parties discussed what charges would proceed to trial. The trial judge called counsel to chambers for a discussion off the record. (Id. at PageID # 190.) After the brief recess, the trial court severed the escape charge, leaving just the drugs and firearms charges to proceed, with Petitioner's affirmative agreement. (Id.) Before the start of voir dire, Petitioner questioned whether it was “effective fair trial” to continue with his current defense counsel, to which the trial judge answered, “Yes.” (Id. at PageID 191.) After voir dire, but before the final juror selection, Petitioner renewed his request for a continuance, which the State opposed, and the trial court denied. (Id.)

After the presentation of evidence, the jury did not reach a verdict on Count One, improper handling of firearms in a motor vehicle, but found Petitioner guilty of all other counts. (Id.) The related possession and trafficking charges merged for sentencing, and the firearms specifications merged as well. (Id.) The trial court sentenced Petitioner to prison for a minimum of 12 years and a maximum of 17.5 years. (Id.)

Petitioner appealed his conviction to the Second Appellate District for Ohio's Court of Appeals and raised the following three assignments of error:

[1] THE TRIAL COURT ERRED IN NOT GRANTING A CONTINUANCE OF THE JURY TRIAL AND THE MOTION TO APPOINT NEW COUNSEL.

[2] APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

[3] THE VERDICT OF THE JURY IS NOT SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE.

Lawson, 164 N.E.3d at 1135; (ECF No. 9, PageID ## 108, 115, 118.) On December 23, 2020, the state appellate court overruled Petitioner's three assignments of error and affirmed the state trial court's decision. Lawson, 164 N.E.3d at 1135; (ECF No. 9, PageID ## 184-231.)

On February 1, 2021, Petitioner filed an appeal in the Ohio Supreme Court and raised the following three issues for review:

Proposition of Law No. 1: The trial court erred in not granting a continuance of the jury trial and a motion to appoint new counsel.

Proposition of Law No. 2: Appellant was denied the effective assistance of counsel.

Proposition of Law No. 3: The verdict of the jury is not supported by the sufficiency of the evidence.

(ECF No. 9, PageID ## 243, 244-57.) On April 13, 2021, the Ohio Supreme Court declined to accept jurisdiction. State v. Lawson, 162 Ohio St.3d 1422, 2021-Ohio-1201, 166 N.E.3d 15 (2021); (ECF No. 9, PageID # 307.)

On March 12, 2021, Petitioner filed a Rule 26(B) application to reopen his direct appeal. (ECF No. 9, PageID # 311.) In his Rule26(B) application, Petitioner asserted that “Appellate Counsel was ineffective for failing to raise a Brady violation for the State's failure to disclose evidence material to [Petitioner's] guilt.” (Id.) On April 26, 2021, the state appellate court denied Petitioner's application to reopen. (Id. at PageID ## 321-25.) It does not appear that Petitioner appealed this decision to the Ohio Supreme Court.^[2]

On February 8, 2022, Petitioner, proceeding pro se, sought a writ of habeas corpus pursuant to 28 U.S.C § 2254. (ECF No. 1.) In his petition, he raises the following grounds for relief:

GROUND ONE: THE TRIAL COURT ERRED IN NOT GRANTING (1) A CONTINUANCE OF THE JURY TRIAL, AND (2) THE MOTION TO APPOINT NEW COUNSEL, IN VIOLATION OF DUE PROCESS.

Supporting Facts: New counsel had been appointed through no fault of his own, and new counsel had not previously sought a continuance. Petitioner had not seen all of the discovery, he had minimal in-person communications [with] his new counsel, and there were pretrial motions that could have been filed; [Petitioner] was not satisfied with his new counsel, any conflicts between him and his new attorney were “so great that it resulted in a total lack of communication preventing an adequate defense.[”]

GROUND TWO: HIS CONVICTIONS WERE BASED ON INSUFFICIENT EVIDENCE FOR TWO REASONS.

Supporting Facts: (1) There was an issue with the chain of custody of the evidence;

(2) the State failed to prove that he trafficked in drugs.

GROUND THREE: INEFFECTIVE ASSISTANCE OF COUNSEL.

Supporting Facts: Counsel did not review discovery; counsel did not obtain potentially exculpatory videos that were in the possession of third parties; counsel did not know what charges would go forward at trial; counsel did not adequately prepare for trial; counsel failed to file pretrial motions; counsel failed to object to testimony about other investigations; counsel failed to object to references that Petitioner was in possession of “ounces” of drugs, rather than “grams” of drugs; counsel misstated the facts; counsel failed to object to testimony about jail house call.

GROUND FOUR: BRADY VIOLATION.

Supporting Facts: State withheld evidence.

(Id. at PageID ## 5-10.)

On June 7, 2022, Respondent filed a Return of Writ, arguing that Petitioner's claims should be dismissed either on the merits or for procedural default. (ECF No. 10.) On August 11, 2022, Petitioner filed his Reply. (ECF No. 13.) This matter is now ripe for review.

II. Standard of Review

The Sixth Circuit Court of Appeals relatively recently discussed the appropriate standard of review for habeas claims brought by state prisoners in Stermer v. Warren, 959 F.3d 704 (6th Cir. 2020):

Petitions for habeas corpus brought by state prisoners are subject to 28 U.S.C. §

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