Lenoir v. Warden, Case No. 2:11-cv-342

• Decision Date: 22 December 2011
• Docket Number: Case No. 2:11-cv-342
• Parties: Michael D. Lenoir, Petitioner, v. Warden, Richland Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

Michael D. Lenoir, Petitioner,

v.Warden, Richland Correctional Institution, Respondent.

Case No. 2:11-cv-342

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: December 22, 2011

JUDGE PETER C. ECONOMUS

Magistrate Judge Kemp

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. This matter is before the Court on that petition, respondent's return of writ, and petitioner's reply. For the reasons that follow, the Magistrate Judge RECOMMENDS that petitioner's claims be DISMISSED.

FACTS AND PROCEDURAL HISTORY

{¶ 2} Ohio State Highway Patrol Trooper Marcus Pirrone testified that on July 4, 2009, around 7:00 a.m. he and Trooper Reggie Streicher were observing traffic on Interstate I-71, milepost 121 when he observed a black Cadillac, four-door sedan and a red Grand Cherokee Jeep approaching at a high rate of speed. Trooper Pirrone mounted his motorcycle and began pursuing the vehicles. Trooper Pirrone testified that the Cadillac eventually stopped, however the Jeep slowed down to approximately five or six miles per hour. The Jeep's driver stared at the Trooper, drove past and then "just punched it." (T. at 19). Trooper Pirrone gave a verbal warning to the driver of the Cadillac and began to pursue the red Jeep. Trooper Pirrone testified that he observed the driver of the Jeep through the windshield as the vehicle approached him and then through the passenger side window. Because the driver of the Jeep had slowed down, Trooper Pirrone was able to see the face of the driver, whom he identified as appellant.

{¶ 3} Trooper Pirrone observed appellant exit the highway and proceed through a red light. The appellant proceeded through a second red light and turned left onto Galena Road. Trooper Pirrone followed, but lost sight of the Jeep. The trooper decided to double back. He was then able to observe the Jeep parked in a driveway. Trooper Pirrone observed that a yard ornament had been knocked over in the driveway. Further, the Jeep's brake lights were on then went off. Appellant exited the Jeep and began to run. Trooper Pirrone observed a "black sweatshirt or possibly a black bag" in appellant's hand at the time he exited the Jeep. Trooper Pirrone pursued the appellant who dropped the black object as he continued to flee the officer. During this pursuit, the trooper called for back-up officers. Trooper Pirrone decided to return to the Jeep, in case appellant decided to double back, return to the Jeep and leave the area. Pictures from the scene show a black object on the patio where Trooper Pirrone said he saw appellant drop a black object.

{¶ 4} Additional troopers arrived to assist and stayed at the scene. No one touched the sweatshirt on the ground until Sergeant Steven Click of the Ohio State Highway Patrol verified the sweatshirt did not belong to the homeowner. There were no civilians on the property when the troopers initially arrived. Ms. Norman, the homeowner, did not come out of the house until Sergeant Click knocked on her door.

{¶ 5} Sergeant Click retrieved the black sweatshirt from the area where Trooper Pirrone indicated that appellant had dropped a black object. Sergeant Click picked up the sweatshirt after ascertaining that it did not belong to the homeowner and a baggie of a material fell out onto the patio. Sergeant Click believed the material was an illegal drug and secured the baggie in his motorcycle. The baggie of material was analyzed and found to weigh 100.07 grams and was a mixture of heroin and cocaine.

{¶ 6} The homeowner, Sharon Norman, testified that the black sweatshirt was not hers, that she did not own a black sweatshirt and that there was no black sweatshirt on her patio when she went to bed the evening before at approximately 12:00 am, 1:00 am.

{¶ 7} When the back-up officers arrived, Trooper Pirrone returned to the foot pursuit. During the pursuit, one of the back-up officers contacted Trooper Pirrone to advise that the officers discovered crack cocaine inside the Jeep and a bag of what appeared to be drugs inside the blacksweatshirt Trooper Pirrone saw appellant drop.

{¶ 8} Appellant ran into a wooden area and attempted to hide from the officers underneath some brush. The canine officer located appellant. After refusing to come out, the officer released his dog. Appellant subsequently surrendered. When the officers located appellant, appellant, admitted that the crack cocaine found inside the Jeep belonged to him. He stated, "The small crack in the car, that one is mine." (T. at 33).

{¶ 9} The jury found appellant guilty of the following three offenses: (1) second-degree felony cocaine possession, in violation of R.C. 2925.11(A) and (C)(4)(d); (2) first-degree felony heroin possession, in violation of R.C. 2925.11(A) and (C)(6)(e); and (3) fifth-degree felony crack cocaine possession, in violation of R.C. 2925.11(A) and (C)(4)(a).

{¶ 10} At the sentencing hearing, the state elected to proceed to sentencing on the first-degree felony heroin possession count. The court then sentenced appellant to a mandatory five-year prison term for this offense and to an eight-month prison term for the crack cocaine possession offense. The court ordered appellant to serve the prison terms consecutively. In accordance with R.C. 2941.25, the trial court did not impose a sentence for the second-degree felony cocaine possession offense.

State v. Lenoir, 2010 WL 3921188 (5th Dist. October 5, 2010).

On January 26, 2010, petitioner, through counsel, timely filed a notice of appeal to the Fifth District Court of Appeals. Exhibit 6 to Return of Writ. Represented by new counsel, he raised the following five assignments of error:

1. The trial court erred by admitting evidence regarding the sweatshirt and the cocaine-heroin mixture when the state failed to establish an adequate chain of custody.

2. The trial court erred by overruling Appellant's motion for judgment of acquittal regarding the second-degree felony cocaine possession offense and the first-degree felony heroin possession offense when the state failed to present sufficient evidence that Appellant knowingly possessed anamount of cocaine equal to or exceeding 100 grams and an amount of heroin equal to or exceeding 50 grams.

3. The jury verdicts convicting Appellant of second-degree felony cocaine possession and first-degree felony heroin possession are against the manifest weight of the evidence because the state did not present any competent, credible evidence that Appellant knowingly possessed more than 100 grams of cocaine and more than 50 grams of heroin.

4. The trial court erred by imposing consecutive terms of imprisonment without making any findings to support consecutive sentences and without providing any reasoning to support its decision to impose consecutive sentences.

5. The trial court erred by imposing a five-year prison sentence for the heroin offense.

Exhibit 7 to Return of Writ

On October 5, 2010, the Fifth District Court of Appeals affirmed petitioner's conviction. Exhibit 9 to Return of Writ. On November 9, 2010, petitioner, through additional new counsel filed a notice of appeal to the Ohio Supreme Court. Exhibit 10 to Return of Writ. Petitioner presented the following proposition of law:

1. To obtain two or more higher-level felony convictions in a drug-possession prosecution involving a single mixture containing cocaine and heroin, the state must prove the amount of each drug contained in the mixture.

On February 16, 2011, the Ohio Supreme Court denied leave to appeal and dismissed petitioner's case as not involving any substantial constitutional question. Exhibit 13 to Return of Writ.

On April 22, 2011, petitioner, proceeding pro se, filed the instant petition for awrit of habeas corpus pursuant to 28 U.S.C. §2254. He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds raised on the face of the petition, and set forth as follows:

Ground One: The conviction is against the sufficiency of the evidence.

Supporting FACTS: The State did not prove the amount of each individual drug involved. Though the mixture of the two drugs exceeds one-hundred grams, there is no evidence as to the amount of each individual drug involved. Accordingly, the evidence does not support a conviction for a first degree felony.

It is the position of respondent that petitioner's claim was not fairly presented or fails on its merits.

FAIR PRESENTATION

The issue of fair presentation recently was addressed at some length by the Sixth Circuit in Houston v. Waller, 420 Fed.Appx. 501 (6th Cir. 2011). As the Court explained,

"the substance of a federal habeas corpus claim must first be presented to the state courts." Picard, 404 U.S. at 278, 92 S.Ct. 509. Determining when a claim has been "fairly presented" is contextual and individual to each case. In some instances, simply presenting the facts, without also presenting "the constitutional claim ... inherent in those facts" is insufficient. Id. at 277, 92 S.Ct. 509. In others, however, "the ultimate question for disposition will be the same despite variations in the legal theory or factual allegations urged in its support." Id. (internal *510 quotations and citations omitted); Jells v. Mitchell, 538 F.3d 478, 504 (6th Cir.2008) ("To present a claim fairly, it is sufficient if the substance of the claim was presented to the state courts, such that the ultimate question would have been the same despite variations in the legal theory or factual allegations urged in its support."). It is "not enough ... that a somewhat similar state-law claim was made," Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982), nor is it sufficient to raise general allegationsof the denial of rights to a fair trial and due process because they do not fairly present claims that specific constitutional rights were violated. McMeans v. Brigano, 228 F.3d

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