Lemaster v. Ohio, C-2-99-406.

• Decision Date: 20 October 2000
• Docket Number: No. C-2-99-406.,C-2-99-406.
• Citation: 119 F.Supp.2d 754
• Parties: James LEMASTER, Petitioner, v. State of OHIO, et al., Respondents.
• Court: U.S. District Court — Southern District of Ohio

119 F.Supp.2d 754

James LEMASTER, Petitioner, v. State of OHIO, et al., Respondents.

No. C-2-99-406.

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

October 20, 2000.

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Kevin Michael Schad, Cincinnati, OH, for Petitioner.

Laurence R. Snyder, Ohio Attorney General, Corrections Litigation Section, Cleveland, OH, for Respondents.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

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 instant petition, respondent's return of writ and the exhibits of the parties.

Petitioner and five other defendants were indicted by the October 1995 term of the Pickaway County grand jury on one count of engaging in a pattern of corrupt activity, in violation of O.R.C. § 2923.32(A)(1), twenty-six counts of receiving stolen property, in violation of O.R.C. § 2913.51, four counts of theft, in violation of O.R.C. § 2913.02, and two counts of vehicle identification number tampering, in violation of O.R.C. § 4549.62. Exhibit B to Return of Writ. Petitioner and a co-defendant were subsequently indicted by the February 2, 1996 term of the Pickaway County grand jury on one count of engaging in a pattern of corrupt activity, eight counts of receiving stolen property, one count of theft, one count of insurance fraud, and one count of aggravated arson. Exhibit D to Return of Writ. The indictments were consolidated (Exhibit P to Return of Writ), and on March 4, 1996, while represented by counsel, petitioner proceeded to jury trial. On March 14, 1996, petitioner was found guilty on eight counts of receiving stolen property, in violation of O.R.C. § 2913.51, one count of theft, in violation of O.R.C. § 2913.02 and one count of engaging in a pattern of corrupt activity, in violation of O.R.C. § 2923.32. (Petitioner was not convicted on four counts of receiving stolen property). Exhibit K to Return of Writ. Petitioner was sentenced on March 18, 1996, to nine terms of one year incarceration, to be served consecutively, and to one term of seven to twenty-five years incarceration, to be served concurrently. State v. LeMaster, Nos. 95CR-242, 96CR-19 (Pickaway Co. Com. Pleas, 1996), Exhibit L to Return of Writ.

Still represented by counsel, petitioner filed a motion for new trial with the trial court on March 15, 1996, which was denied on March 21, 1998. Exhibits M and O to Return of Writ. Petitioner, again represented by the same counsel, also filed a timely appeal of his convictions to the Fourth District Court of Appeals. Exhibit R to Return of Writ. Petitioner asserted the following assignments of error:

1. Did the trial court commit prejudicial error when it permitted the prosecutor, in his final closing, to read parts of a transcript verbatim and to comment upon it to the jury when the court had denied the jury the right to read the transcript and instead, an unintelligible tape recording was played?

2. Was prejudicial error committed when trial counsel was disqualified to the extent that he could not cross examine Anthony Moody?

3. Was Stephen Gussler incompetent in his cross-examination of Anthony Moody?

4. Was the failure to object to phone records plain error?

5. If not plain error, was James Kingsley incompetent because he failed to object at trial to exclude defendant's phone records?

6. Should the phone records have been suppressed because they were obtained by subpoena and not by search warrant?

7. Was the finding of guilty in Case No. 96CR-19, count 4, contrary to law and against the manifest weight of the evidence?

8. Did the predicate offenses merge into the RICO conviction?

9. Could predicate offenses stated in Case No. 96CR-19 be used in Case No. 95CR-242 and visa versa?

10. Was the defendant denied due process of law and a fair trial because jurors perjured themselves in voir dire by stating they did not know the defendant, or they were unaware of defendant's trucking business or defendant's prior arson trial for which he was acquitted?

11. Did the trial court impose maximum consecutive sentences only because the defendant exercised his right to a trial by jury?

12. Was the defendant denied a fair trial because of the failure of the State of Ohio to provide exculpatory evidence?

13. Was the verdict against the manifest weight of the evidence and contrary to law because the state failed to prove replacement value of the items stolen but instead relied upon purchase price?

14. Is O.R.C. § 2923.32 unconstitutional?

15. Did the court of appeals deny appellant due process of law when it denied his motion to enlarge his appellate brief?

Exhibit T to Return of Writ. On January 21, 1998, the appellate court affirmed the judgment of the trial court. State v. LeMaster, No. 96CA-18 (Pickaway Co.App. Ct.1998), Exhibit X to Return of Writ. Represented by new appellate counsel, petitioner filed an appeal of the appellate court's decision to the Ohio Supreme Court. Exhibit Y to Return of Writ. He asserted the following propositions of law:

1. The trial court denied the appellant his right to counsel when the court prohibited counsel from participating in the cross-examination of Anthony Moody, a critical State's witness.

2. The appellant was denied his right to effective assistance of counsel when substitute counsel cross-examined Anthony Moody.

3. The appellant was denied his right to a fair trial when the prosecutor, during closing argument, alluded to matters outside of the record.

4. The appellant's right to due process of law was violated when he was convicted under R.C. 2923.32, which is unconstitutionally vague for failing to set forth an ascertainable standard of guilt.

5. The appellant's right to due process of law was violated when the trial court failed to merge his predicate offenses into the § 2923.32 conviction.

Exhibit Z to Return of Writ. On April 22, 1998, the Ohio Supreme Court apparently denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question. Exhibit BB to Return of Writ.

Petitioner filed a petition for post conviction relief and motion for new trial with the trial court, still represented by counsel, in which he asserted the following claims:

1. Whether the petitioner should be granted a new trial based upon newly discovered evidence, wherein it was discovered that two key witnesses for the State lied under oath and violated the sequestration order, and the pervasiveness of prosecutorial misconduct during the petitioner's trial which denied him of a fair trial and due process of law?

2. Whether the petitioner was denied his Sixth Amendment right to effective assistance of counsel by counsel's failure to present available evidence which would have refuted the State's case and for failing to timely file a motion for post-conviction relief.

3. Whether the petitioner's constitutional rights under the Fifth and Fourteenth Amendment have been violated by the excessive sentence?

4. Whether the petitioner is entitled to an evidentiary hearing on these matters?

Exhibits CC and DD to Return of Writ. On October 29, 1998, the trial court denied petitioner's motion. Exhibits FF and GG to Return of Writ. Again represented by counsel, petitioner filed an appeal of the trial court's decision to the Fourth District Court of Appeals, in which he asserted the same claims. Exhibits HH and II to Return of Writ. The appellate court affirmed the judgment of the trial court on September 28, 1999. Exhibit LL to Return of Writ. Petitioner filed an appeal of the appellate court's decision to the Ohio Supreme Court. He asserted the following claims:

1. Whether the appellant was denied his right to counsel.

2. Whether substitute counsel provided ineffective assistance.

3. Whether the prosecutor engaged in misconduct during closing argument.

4. Whether O.R.C. § 2923.32 is unconstitutionally vague.

Exhibits MM and NN to Return of Writ. On January 19, 2000, the Ohio Supreme Court dismissed the appeal as not involving any substantial constitutional question. Exhibit PP to Return of Writ.

Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, represented by counsel, on April 23, 1999.¹ He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following:

1. Whether the petitioner was denied his right to counsel during trial.

2. Whether the prosecutor engaged in misconduct during closing arguments which denied the petitioner his right to fair trial.

3. Whether O.R.C. § 2923.32 is unconstitutionally vague.

4. Whether the petitioner is entitled to an evidentiary hearing on these matters.

Petitioner filed a supplemental memorandum in support of his petition on June 16, 2000, in which he alleges that he is in the custody of the respondent based upon the following additional grounds:

5. Newly discovered evidence requires reversal of the petitioner's convictions.

6. Counsel was ineffective during pretrial investigation.

7. The trial court erred in failing to recuse itself.

8. The petitioner's sentence was excessive in violation of the Eighth Amendment.

It is the position of the respondent that petitioner has committed a procedural default as to claims three, and seven, and to any claims that were initially raised in petitioner's post conviction action. Respondent also argues that petitioner's claims are without merit.

I. PROCEDURAL DEFAULT

In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to fairly present those claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If he fails...