Leonard v. Warden, Toledo Corr. Inst.

• Decision Date: 23 August 2012
• Docket Number: CASE NO. 2:10-CV-769
• Parties: RONALD D. LEONARD, Petitioner, v. WARDEN, TOLEDO CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

RONALD D. LEONARD, Petitioner,

v.WARDEN, TOLEDO CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:10-CV-769

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

Dated: August 23, 2012

JUDGE JAMES L. GRAHAM

MAGISTRATE JUDGE ELIZABETH P. DEAVERS

ORDER and

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings the instant petition 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, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

The Clerk has already updated the record to reflect Petitioner's current address and named Respondent. Accordingly, Petitioner's request that the docket be updated to reflect his current address and to substitute the named Respondent (Doc. 20) is DENIED, as moot.

Petitioner's request for a judgment of default (see Petitioner's Reply, Doc. 13), is DENIED.

Petitioner's motion for a decision and for a substitution of the Respondent (Doc. 21), is DENIED, as moot.

FACTS and PROCEDURAL HISTORY

The Ohio Fourth District Court of Appeals summarized the facts and procedural history of this case as follows:

In September 2005, a wildlife technician discovered some marihuanaplants while mowing a brushy section of the Fox Lake Wildlife Area in Athens County, Ohio. At about the same time, some confidential informants told Officer Terry Hawk of the Ohio Department of Natural Resources (hereinafter "ODNR") about suspicious activity in the area. Based on these reports, Officer Hawk and ODNR Officer Thomas Donnelly drove to that section of the Fox Lake Wildlife Area and found marihuana plants growing in two blue pots and one black pot. The two blue pots each contained two marihuana plants. The black pot also contained two marihuana plants and was located about seventy-five yards away from the two blue pots.

On September 9, 2005, Officers Hawk and Donnelly set up a surveillance camera in the area of the marihuana plants. The surveillance camera was designed to start recording upon sensing any seismic activity in the area. On September 13, 2005, the surveillance camera recorded a white male approaching the marihuana plants while carrying a blue jug. Subsequently, the seismic activity from a nearby gas line caused the surveillance camera to record near continuously. As a result, the surveillance camera quickly ran out of power and recorded nothing else related to the marihuana plants.

On September 20 and 21, 2005, Officers Hawk and Donnelly, along with other ODNR officers, set up live surveillance in the area of the marihuana plants. The officers observed nothing related to the marihuana on September 20, 2005. Before starting surveillance on September 21, 2005, one of the officers checked the marihuana in the blue pots and noticed that the soil was dry.

At approximately 5:22 p.m. on September 21, 2005, Officer Donnelly observed a red jeep driving towards the area of the marihuana plants. The driver of the red jeep parked in a wooded area, got out of his car, and walked towards the area of the marihuana plants; i.e., the brushy area. Officer Hawk and another ODNR officer testified that they saw the suspect, later identified as Leonard, carrying a blue jug.

Leonard then entered the brushy area that hid the blue pots. After Leonard entered this particular area, Officer Hawk testified that he saw the tops of the marihuana plants move and heard the sound of water pouring. (One of the ODNR officers later checked the blue pots and discovered that the soil was wet.) When Leonard emerged from the brushy area, Officer Hawk apprehended Leonard and ordered himto the ground. At this point, ODNR officers found loose marihuana lying on the ground next to Leonard.

ODNR Investigator Charles Stone took possession of the marihuana evidence a few days later. Investigator Stone testified that, because he had not worked a marihuana cultivation case before, he called the Athens County Prosecutor's office for guidance. Investigator Stone further testified that he operated under the following guidelines: "Keeping the three pots separate and removing the leaves and buds from the stalks of each of the two plants in each of the three planters, and putting them in separate boxes. So we ended up with three boxes. And because our scales were not on site at the District office I was given some advice to take it [sic] the State Highway Patrol office in Athens and utilizing their digital scales to weigh the contents of each of the boxes. That process occurred on [September] 26th." Transcript of Jury Trial Proceedings, Day Two at 221. According to Investigator Stone's testimony, the first box of marihuana plants weighed 426.86 grams; the second box of marihuana plants weighed 1,361.10 grams; and the third box weighed 1,079.29 grams. Therefore, according to Investigator Stone's testimony, the total weight of the marihuana was 2,867.25 grams.

On February 27, 2006, an Athens County Grand Jury indicted Leonard for one count of third-degree felony cultivation of marihuana, in violation of R.C. 2925.04(A) and R.C. 2925.04(C)(5)(d).

Sometime after Investigator Stone weighed the marihuana, ODNR officers transferred the marihuana evidence to the Ohio Attorney General's Bureau of Criminal Identification and Investigation (hereinafter "Ohio BCI" or "BCI"). A BCI analyst weighed the marihuana plants on May 16, 2007. According to the analyst's report, the marihuana weighed 747.1 grams. (Investigator Stone weighed the marihuana evidence again on August 28, 2007. The weight obtained by Investigator Stone that day was consistent with the weight obtained by the BCI analyst.)

During his arrest on September 21, 2005, Leonard stated that he took the loose marihuana for his own use and, also, that he was growing the marihuana for his own use. On July 27, 2007, Leonard filed a motion to suppress that statement. Leonard also filed a motion inlimine to prohibit the state from introducing into evidence (1) any marihuana seized subsequent to Leonard's arrest and (2) the September 13, 2005 surveillance videotape. After a suppression hearing that addressed these issues, the trial court granted the motion to suppress the statement because Leonard had not been read his Miranda rights. However, the trial court denied Leonard's motion in limine.

On February 4, 2008, Leonard filed a Motion for Disclosure of the Identity of the Informant. The trial court denied that motion. Leonard subsequently filed another motion requesting the confidential informant's identity. Again, the trial court denied that motion. On July 7, 2008, the state filed a Notice of Citizen Information. In that Notice, the prosecutor stated that "[g]iven the fact that Supervisor Donnelly was watching for a certain vehicle, it became apparent to me that there was another individual who had provided information to the officers. This individual was not present on September 21, 2005, this individual is a not a suspect in the case, and this individual had no other relationship to this case."

On July 8, 2008, before the voir dire process in Leonard's trial, the judge ruled that the prosecutor should provide the name of the confidential informant to Leonard's attorney. The trial court judge said that the prosecutor "did not say that the individual that he's told us about and filed a notice about was a confidential informant. He just said it was somebody that they saw there who gave some general information when asked. And I think to allay any suspicions or anything the name and the address of that person should be given. It doesn't have to be published. Just something so counsel can call this person and talk to this person." Transcript of Jury Trial Proceedings, Day One (Pre-Voir Dire) at 5.

The prosecutor provided the name of the informant to Leonard's trial counsel. But instead of providing an address or phone number, the prosecutor merely provided a street name. When Leonard's trial counsel complained, the trial court offered to help him make contact with the informant. However, it appears that nobody was able to contact the informant before the end of Leonard's trial.

During the three-day jury trial, the prosecution called Officer Hawk, Officer Donnelly, Investigator Stone, and two other ODNR officers as witnesses. Leonard called the BCI analyst as a witness. After thetrial, the jury found Leonard guilty of cultivation of marihuana, a felony of the third degree.

On July 23, 2008, Leonard filed a motion for a new trial pursuant to Crim.R. 33. However, the trial court disregarded Leonard's arguments under Crim.R. 33(A)(2) and (3) because his motion did not include the necessary supporting affidavits. See Crim.R. 33(C). Further, the trial court found that Leonard's arguments under Crim.R. 33(A)(1) were without merit. As a result, the trial court denied Leonard's motion for a new trial.

State v. Leonard, No. 08CA24, 2009 WL 4050254, at *1-4 (Ohio App. 4th Dist. Nov. 18, 2009). Petitioner filed a timely appeal in which he raised the following assignments of error:

I. THE CONVICTION WAS BASED UPON INSUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

II. APPELLANT WAS DENIED A FAIR TRIAL DUE TO PROSECUTORIAL MISCONDUCT.

III. APPELLANT WAS DENIED A FAIR TRIAL DUE TO THE INEFFECTIVE ASSISTANCE OF COUNSEL.

Id. at *4. On November 18, 2009, the appellate court affirmed the judgment of the trial court. Id. On March 10, 2010, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Leonard, 124 Ohio St.3d 1509 (2010).

On September 8, 2010, Petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that he is in the custody of the Respondent in violation of the Constitution of the United States based upon the following grounds:

1. Hearsay implicates the Sixth Amend. Because, defendant was not afforded the opportunity to confront the

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