McDougald v. Warden, Lebanon Corr. Inst.

• Decision Date: 01 October 2012
• Docket Number: Case No. 1:11-cv-790
• Parties: JERONE MCDOUGALD, Petitioner, v. WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JERONE MCDOUGALD, Petitioner,

v.WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.

Case No. 1:11-cv-790

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Dated: October 1, 2012

Spiegel, J.

Bowman, M.J.

REPORT AND

RECOMMENDATION

Petitioner, an inmate in state custody at the Lebanon Correctional Institution (LeCI) in Lebanon, Ohio, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The case is before the Court on the petition, petitioner's brief in support of the petition, respondent's return of writ with exhibits, and petitioner's reply to the return of writ. (Docs. 3, 4, 9, 14).¹

I. PROCEDURAL HISTORY

State Trial Proceedings

On January 3, 2007, the Scioto County, Ohio, grand jury returned an indictment charging petitioner with one first-degree-felony count of possession of crack cocaine in violation of Ohio Rev. Code § 2925.11(C)(4)(e); one first-degree-felony count of trafficking in crack cocaine in violation of Ohio Rev. Code § 2925.03(A)(1) & (C)(4)(f); one count of possessing criminal tools in violation of Ohio Rev. Code § 2923.24(A)/(C); and one count having a weapon underdisability in violation of Ohio Rev. Code § 2923.13(A)(3). (Doc. 9, Ex. 1). The indictment also included a firearm specification and forfeiture specification. (Id.). In its direct appeal decision, the Ohio Court of Appeals, Fourth Appellate District, provided the following summary of the facts that led to petitioner's indictment, as gleaned from testimony presented at petitioner's jury trial:²

On December 18, 2006, authorities searched the premises at 1119 Seventeenth Street in Portsmouth and found crack cocaine, money, digital scales and a pistol. The two occupants of the residence, Kendra White and appellant, were arrested at the scene.

****

At the jury trial Kendra White testified that appellant used her home to sell crack cocaine and that she also sold drugs on his behalf as well. Further, White testified that the digital scales belonged to appellant and, although the pistol belonged to her ex-boyfriend who was then incarcerated, appellant asked her to bring it inside the home so that he would feel more secure. White confirmed that she saw appellant at the premises with the gun on his person.

Jesse[] Dixon and Melinda Elrod both testified that they purchased crack cocaine from appellant at the residence. Shawna Lattimore testified that she served as a "middleman" for appellant's drug operation and also helped him transport drugs from Dayton. She testified that she also saw appellant carry the pistol.

(Id., Ex. 11, pp. 2-3).³

Prior to trial, petitioner's trial counsel filed motions on petitioner's behalf, requesting the suppression of (1) the evidence obtained during the search of Kendra White's residence; (2)petitioner's statements to the police; and (3) any testimony regarding petitioner's post-arrest or pre-arrest silence in response to police questioning. (Id., Exs. 2-4). After a hearing, the trial court issued a Judgment Entry overruling the suppression motions. (Id., Ex. 5).

The matter proceeded to trial before a jury, which found petitioner guilty as charged. (See id., Ex. 6). After a sentencing hearing held on April 3, 2007, the trial court issued a "Nunc Pro Tunc Judgment Entry" on May 16, 2007, sentencing petitioner to an aggregate prison term of twenty (20) years.⁴ (See id.).

Ohio Court of Appeals: Direct Appeal and Reopening Application

Petitioner's trial counsel filed a timely notice of appeal on petitioner's behalf to the Ohio Court of Appeals, Fourth Appellate District. (Doc. 9, Ex. 7). With the assistance of new counsel for appeal purposes, petitioner filed a brief raising the following assignments of error:

1. The trial court erred in violation of the defendant's rights under the federal and state Constitutions when it sentenced the defendant to consecutive sentences on allied offenses of similar import in violation of R.C. 2941.25.

2. Mr. McDougald was denied his rights under the United States and Ohio Constitutions to a fair trial when the prosecuting attorneys made cumulative improper and prejudicial remarks during closing arguments.

3. Mr. McDougald's constitutional rights to due process of law were violated when his convictions on all counts were against the manifest weight of the evidence.

(Id., Ex. 8). On March 20, 2008, the Ohio Court of Appeals issued a Decision and Judgment Entry overruling the assignments of error and affirming the trial court's judgment. (Id., Ex. 11).

On May 29, 2008, petitioner filed a timely pro se application pursuant to Ohio R. App. P. 26(B) with the Ohio Court of Appeals, Fourth Appellate District, requesting that the directappeal be reopened. (Id., Ex. 15). In the application, as later supplemented, petitioner contended that his appellate counsel was ineffective for failing to raise the following issues on direct appeal:

1. The trial court erred by admitting [into] evidence, over objection, a laboratory report and technician[']s affidavit in violation of appellant's constitutional right of confrontation.

2. The evidence is constitutionally insufficient to sustain the appellant's conviction for having a weapon under disability.

3. The verdict form signed by the jury did not include either the degree of the offense[]s of which the appellant was convicted or a statement that an aggravating element had been found to justify convicting appellant of a greater degree of criminal offense pursuant to R.C. 2945.75(A)(2).

4. The trial court erred to the prejudice of the appellant [when] it allowed the State to elicit inflam[m]atory testimony of other unindicted "bad acts" in its effort to obtain conviction, denying the appella[nt] his federal and Ohio constitutional right to a fair trial.

5. The State failed to show that the criminal tools seized constituted criminal tools under R.C. 2923.24.

6. Appellant was denied the constitutional right to compulsory process over potential witness who acted as confidential informant, whose testimony was relevant to aid in his defense.

7. The evidence was insufficient to support conviction for possession of drugs.

8. Mr. McDougald . . . was denied his rights to an indictment in violation of Article I, Section 10 of the Ohio Constitution.

9. Mr. McDougald . . . was denied his rights under the United States and Ohio Constitution[s] to a fair trial when the trial court failed to give a curative instruction.

10. Mr. McDougald . . . was denied his rights under the United States and the Ohio Constitution[s] to []effective assistance of counsel when appellant['s] counsel over looked the in[]effectiveness of trial counsel for failure to raise the continued detention in violation of appellant's due process rights and Fourth Amendment to the United States Constitution.

11. Mr. McDougald . . . was denied his rights under the United States and the Ohio Constitution[s] to []effective assistance of counsel when appellant's counselover looked the in[]effectiveness of trial counsel for failure to raise the officers arrested appellant without probable cause, in violation of the Fourth Amendment of the United States Constitution and Article One, Section Fourteen of the Ohio Constitution.

12. Appellant was denied his rights under the Fifth Amendment to the United States [Constitution] against self incrimination and the right not to testify on the merits of the charges at the motion to sup[p]ress.

(Id., Exs. 15-16).

On September 10, 2008, the Ohio Court of Appeals issued an entry denying petitioner's application for reopening of the direct appeal. (Id., Ex. 17).

Thereafter, on January 2, 2009, petitioner filed a pro se motion for leave to amend his reopening application to add four more claims of error. (See id., Exs. 18, 44). On January 9, 2009, the Ohio Court of Appeals denied that motion as moot because petitioner's reopening application had already previously been denied. (See id., Exs. 19, 44).

Delayed Appeal To Ohio Supreme Court

Petitioner did not pursue an appeal to the Ohio Supreme Court from the denial of his reopening application. Petitioner also did not pursue a timely appeal to the Ohio Supreme Court from the state appellate court's March 20, 2008 decision affirming the trial court's judgment on direct appeal. On March 26, 2010, over two years after the Ohio Court of Appeals issued its direct appeal decision, petitioner filed a pro se notice of appeal and motion for leave to file a delayed appeal with the Ohio Supreme Court. (Doc. 9, Exs. 12-13). In the memorandum submitted in support of his motion for leave to file a delayed appeal, petitioner provided the following explanation for his untimely filing:

I was unable to file an appeal to this Court within 45 days of the Court of Appeal[s'] decision for the following reasons. . . . Appellant mailed original Court Opinion to state Public Defender Office 2 yrs ago seeking assistance. In fil[]ing this Jurisdictional Memorandum however, the Public Defender[']s Office did not repl[y] and written request for the return of the Court of Appeals['] Entry has not been answered and the appellant has been unsuc[c]essful in gettinganother copy from the courts.

(Id., Ex. 13). Petitioner also stated in an attached affidavit that he "is unable to understand the law and it is impossible to receive adequate help with the prison population overcrowding." (Id., Ex. 13, "Affidavit Of Reasons For Delay"). Petitioner attached to his motion a copy of the appellate court's direct appeal decision that had been published on the Westlaw website. He stated that if he were granted a delayed appeal, he would raise two propositions of law challenging (1) the imposition of consecutive sentences for the allied offenses of drug possession and trafficking, and (2) the prosecutor's remarks during closing argument. (See id., Ex. 13).

On May 5, 2010, the Ohio Supreme Court denied petitioner's motion for delayed appeal and dismissed the appeal without opinion. (Id., Ex. 14).

State Post-Conviction Proceedings

On December...