Lowery v. Ohio

• Court: U.S. District Court — Northern District of Ohio
• Writing for the Court: JUDGE DONALD C. NUGENT
• Decision Date: 23 April 2015
• Docket Number: CASE NO. 1:14 CV 2523
• Citation: Lowery v. Ohio, CASE NO. 1:14 CV 2523 (N.D. Ohio Apr 23, 2015)
• Parties: CHARLES BENJAMIN LOWERY, Petitioner, v. STATE OF OHIO, Respondent.

CHARLES BENJAMIN LOWERY, Petitioner, v. STATE OF OHIO, Respondent.

CASE NO. 1:14 CV 2523

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

April 23, 2015

JUDGE DONALD C. NUGENT

MEMORANDUM OF OPINION

Pro se Petitioner Charles Benjamin Lowery filed this Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. He was convicted in 2006 on two counts of aggravated robbery, two firearm specifications, and one count of having a weapon under disability. He is currently in the Toledo Correctional Institution serving an eleven year sentence. Petitioner asserts seven grounds for relief in his habeas petition, including three grounds which challenge the indictment, one ground challenging as a copyright or trademark infringement the ODRC's printing of Petitioner's name in all capital letters, two grounds challenging the credibility of the witness testimony, and a claim that the trial court lacked jurisdiction to conduct his trial because the courtroom contained a flag with gold fringe. He asks this Court to reverse his judgment of conviction and compel the state to release him.

Factual and Procedural Background

On the evening of December 31, 2005, Timothy Rodgers and Wayne Vince were at Rodger'ssister's home located in Dayton, Ohio when they decided to walk to a local convenience store to get more food and drinks for the party. State of Ohio v. Lowery, No. 21879, 2007 WL 4305684, at * 1-2 (Ohio App. 2 Dist. Dec. 7, 2007). As they were entering the convenience store, Petitioner was leaving. He waited for Rodgers and Vince to exit the store and then asked if they wanted to buy marijuana. They apparently agreed to do so, and they all went back to Rodger's sister's home where they drank alcohol and smoked marijuana. Rodgers briefly went into the house, and when he returned, Petitioner pulled a sawed-off shotgun from underneath his coat. He pointed the gun at Rodgers and Vince and demanded money. They gave him approximately $120.00. Petitioner took the money and ran off. Vince chased after him until Petitioner turned and fired the shotgun at him. Vince returned to the home and called police.

Officers took statements from Vince and Rodgers and got a description of the suspect. When the officers spoke with Vince and Rodgers nine days later, they learned that the suspect had been in the convenience store just before the victims arrived. The store's surveillance video showed both the suspect and the victims.

Petitioner was arrested on unrelated weapons charges on January 15, 2006. Police recovered a long black leather jacket like the one described by Vince and Rodgers, and a sawed-off shotgun. When one of the detectives investigating the robbery saw Petitioner's booking photo, he recognized Petitioner as the man on the store surveillance video. Rodgers and Vince both selected Petitioner from a photo line up.

Petitioner was indicted on two counts of aggravated robbery, each with a three year firearm specification, one count of unlawful possession of a dangerous ordinance, and one count of having a weapon under disability. The robbery charges and weapons charges arose out of separate incidentsand were tried separately. Petitioner was convicted on both robbery charges and the firearm specifications following a jury trial. He pled guilty to having a weapon under disability in exchange for dismissal of the charge of possessing a dangerous ordinance. He was sentenced in September 2006 to consecutive four year prison terms on the robbery charges. The court merged the gun specifications and imposed an additional and consecutive three year term of incarceration. The court imposed a concurrent one year prison term on the charge of having a weapon under disability. Petitioner's total aggregate sentence is eleven years incarceration.

Petitioner filed a direct appeal of his convictions to the Ohio Second District Court of Appeals. He asserted two assignments of error:

1. The jury's verdicts should be reversed as they were against the manifest weight of the evidence;

2. The court's imposition of non-minimum consecutive sentences is unconstitutional and must be reversed.

Id. at *2,4.

In support of his first assignment of error, Petitioner pointed to several inconsistencies in the testimony of Rodgers and Vince. He claimed that the victims told police that they met him on their way to the convenience store but testified at trial that they first encountered him on their way home. The victims both had different estimated times that the robbery occurred. Petitioner pointed out that one victim testified that Rodgers went in the house to get cigarettes while the other testified Rodgers went into the house to get a pen and paper. Petitioner contended that Rodgers testified that as Petitioner fled the scene of the robbery, he fired his weapon. He did not say this in his earlier statement to police. Vince said he chased Petitioner until Petitioner stopped to reload his gun. He told police earlier that he chased Petitioner but lost him on Leo Street. The Court of Appeals foundthat these details were immaterial to Petitioner's conduct and only implicated the credibility of the witnesses. The court stated it would not substitute its judgment for that of the trier of facts on issues of witness credibility. Petitioner's first assignment of error was overruled.

With respect for his second assignment of error, Petitioner argued that pursuant to Blakely v. Washington, 542 U.S. 296 (2004) and State v. Foster, 109 Ohio St. 3d 1 (2006), he was entitled to have the jury decide issues of fact that would result in the imposition of a greater sentence. The court indicated that Petitioner did not raise his Blakely objection at trial and forfeited it on appeal. The court also held that the trial court's sentences were not based on any of the findings mandated by Ohio Revised Code § 292914(B) and neither Blakely nor Foster were applicable to this case. Petitioner's second assignment of error was also overruled.

Petitioner contends he appealed this decision to the Supreme Court of Ohio. The Supreme Court, however, has no record of this filing.¹ He provides no information concerning this alleged appeal except to say that the Court declined review some time in 2008.

On May 5, 2010, approximately two years and two months after he filed his transcript in his direct appeal, Petitioner filed a Petition for Post Conviction Relief in the trial court. See State of Ohio v. Lowery, No. 24198, 2011 WL 2410062, at *1 (Ohio App. 2 Dist. June 10, 2011). He asserted that his indictment was defective. Id. The trial court denied the Petition as untimely filed. Id.

Petitioner appealed that decision to the Ohio Second District Court of Appeals. He assertedfour grounds for relief:

1. The judgment entered by the trial court and the indictment returned by the grand jury are null and void for lack of subject matter jurisdiction and for failure to charge as defined by state statute an aggravated robbery offense, when it failed to identify or name any victim in the proposed indictment.

2. The judgment entered by the trial court and the indictment returned by the grand jury are null and void for lack of subject matter jurisdiction and for failure to charge as defined by state statute an aggravated robbery offense when it failed to include in the indictment a "theft offense."

3. the state violated the constitutional ban against double jeopardy when it charged and convicted Appellant in counts three and four of the proposed indictment with two identical aggravated robbery offenses, causing indictment to suffer from "multi-plicity."

4. Montgomery County Court of Common Pleas Court erred when it denied Appellant's Petition for Post-Conviction Relief.

Id. The Court of Appeals affirmed the trial court's decision on June 10, 2011, stating that the Petition was untimely, and his challenges to the indictment were barred by res judicata because they could and should have been raised at trial and on direct appeal. Id. at *4.

Petitioner appealed that decision to the Supreme Court of Ohio on July 25, 2011. He asserted four Propositions of Law:

1. Trial court convicted and sentenced Appellant on indictment that failed to conform with the Criminal Rule 7 and Revised Code 2911.01.

2. The judgment entered by the trial court and the indictment returned by the Montgomery County Grand Jury are null and void for lack of subject matter jurisdiction and for failure to charge as defined by state statute R.C. 2305.01 and 2911.01 and 2913.01.3. Appellant was convicted and sentenced by the Montgomery County Common Pleas Court on an indictment suffering "multiplicity," violating the 5th Amendment of the United States Constitution and Article I, section 10 of the Ohio Constitution.

4. Lower court erred in its judgment against the Appellant's petition for Post Conviction Relief.

See State of Ohio v. Lowery, No. 2011-1263 (Ohio S. Ct. filed July 25, 2011). The Supreme Court of Ohio declined jurisdiction and dismissed the appeal on November 16, 2011.

Petitioner filed a Motion for Entry of Default Judgment and a Motion for Summary Judgment on December 4, 2012 in the trial court. He again asserted that his indictment was defective. See State of Ohio v. Lowery, No. 25690, 2013 WL 5172765, at *1 (Ohio App. 2 Dist. Sept. 13, 2013). The trial court denied the motions on the basis of res judicata. Id.

Petitioner appealed that decision to the Ohio Second District Court of Appeals. He asserted three assignments of error:

1. Trial court and county conspired against Appellant's constitutional rights as to U.S.C. 18 §241.

2. State presented Appellant with an unconstitutionally constructed instrument, to wit: Defective Indictment.

3. Trial court violated ban against double jeopardy when it tried, convicted, and sentenced Appellant on two identical aggravated burglaries.

Id. at *1-2. The Ohio Court of Appeals affirmed the trial court on September 13, 2013 also holding that the grounds raised were barred by the doctrine...