McGlothin v. Jackson

• Decision Date: 06 November 2013
• Docket Number: Case No. 1:09-cv-48
• Parties: CAMERON McGLOTHIN, Petitioner, v. WANZA JACKSON, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

CAMERON McGLOTHIN, Petitioner, v. WANZA JACKSON, Warden, Respondent.

Case No. 1:09-cv-48

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

November 6, 2013

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner's Objections (Doc. No. 21) to the Magistrate Judge's Report and Recommendations (the "Report," Doc. No. 20). District Judge Barrett has recommitted the case to the Magistrate Judge for reconsideration in light of the Objections (Order, Doc. No. 22).

Petitioner pled six Grounds for Relief. The Report concluded Ground Five was moot because the relief it requested had already been granted by the Ohio courts. Petitioner makes no objection to the proposed disposition of Ground Five. The Report recommends dismissal of the other five Grounds with prejudice and Petitioner objects as to each of them. The Objections will be analyzed seriatim.

Ground One: Denial of a New Trial

In his First Ground for Relief, McGlothin claims he was denied due process of law underthe Fourteenth Amendment when the trial court refused to grant him a new trial. On direct appeal, McGlothin asserted that the trial court's denial of a new trial was a violation of Ohio R. Crim. P. 33(A)(6). The Report concluded that McGlothin had not presented this as a federal constitutional claim to the state courts and thus had procedurally defaulted any constitutional claim (Report, Doc. No. 20, PageID 2330-31). McGlothin objects that he did in fact fairly present this claim as a federal constitutional claim to the state courts (Objections, Doc. No. 21, PageID 2349-52).

To preserve a federal constitutional claim for presentation in habeas corpus, the claim must be "fairly presented" to the state courts in a way that provides them with an opportunity to remedy the asserted constitutional violation, including presenting both the legal and factual basis of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6^th Cir. 2006); Levine v. Torvik, 986 F.2d 1506, 1516 (6^th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6^th Cir. 1991). The claim must be fairly presented at every stage of the state appellate process. Wagner v. Smith, 581 F.3d 410, 418 (6^th Cir. 2009).

Merely using talismanic constitutional phrases like "fair trial" or "due process of law" does not constitute raising a federal constitutional issue. Slaughter v. Parker, 450 F.3d 224, 236 (6^th Cir. 2006); Franklin v. Rose, 811 F.2d 322, 326 (6^th Cir. 1987); McMeans v. Brigano, 228 F.3d 674, 681 (6^th Cir. 2000), citing Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2^nd Cir. 1984); Blackmon v. Booker, 394 F.3d 399, 400 (6^th Cir. 2004)(same). "A lawyer need not develop a constitutional argument at length, but he must make one; the words 'due process' are not an argument." Riggins v. McGinnis, 50 F.3d 492, 494 (7^th Cir. 1995).

If a petitioner's claims in federal habeas rest on different theories than those presented tothe state courts, they are procedurally defaulted. Williams v. Anderson, 460 F.3d 789, 806 (6^th Cir. 2006); Lorraine v. Coyle, 291 F.3d 416, 425 (6^th Cir. 2002), citing Wong v. Money, 142 F.3d 313, 322 (6^th Cir. 1998); Lott v. Coyle, 261 F.3d 594, 607, 619 (6^th Cir. 2001)("relatedness" of a claim will not save it).

A state prisoner ordinarily does not 'fairly present' a federal claim to a state court if that court must read beyond a petition, a brief, or similar papers to find material that will alert it to the presence of such a claim. Baldwin v. Reese, 541 U.S. 27 (2004).

A petitioner fairly presents a federal habeas claim to the state courts only if he asserted both the factual and legal basis for his claim. Hicks v. Straub, 377 F.3d 538 (6^th Cir. 2004), citing McMeans v. Brigano, 228 F.3d 674, 681 (6^th Cir. 2000); and Picard v. Connor, 404 U.S. 270, 276, 277-78 (1971).

In determining whether a petitioner "fairly presented" a federal constitutional claim to the state courts, we consider whether: 1) the petitioner phrased the federal claim in terms of the pertinent constitutional law or in terms sufficiently particular to allege a denial of the specific constitutional right in question; 2) the petitioner relied upon federal cases employing the constitutional analysis in question; 3) the petitioner relied upon state cases employing the federal constitutional analysis in question; or 4) the petitioner alleged "facts well within the mainstream of [the pertinent] constitutional law."

Hicks at 552-53, citing McMeans, 228 F.3d at 681.

McGlothin concedes that the sole case cited by him on this assignment of error on direct appeal was State v. Condon, 157 Ohio App. 3d 26, 2004-Ohio-2031 (1^st Dist. 2004) (Objections, Doc. No. 21, PageID 2350). McGlothin also concedes that the Condon court "focused primarily on Ohio R. Crim. P. 33" but also held "fundamental fairness and the interests of justice" support the position the Condon court took. Id., quoting Condon at ¶ 19.

McGlothin's citation of Condon does not satisfy the fair presentation criteria adopted by the Sixth Circuit in Hicks, supra. In the state court , McGlothin (1) did not phrase his claim in terms of any federal constitutional right; (2) did not cite any federal cases; (3) Condon, the sole case on which McGlothin relied, did not employ any federal constitutional analysis - a court's claiming that its position is required by fundamental fairness and justice is not federal constitutional analysis; (4) the facts relied on are not within the mainstream of any particular federal constitutional right. McGlothin has in fact even in this Court cited no federal constitutional law authority for the proposition that a new trial is compelled when a critical witness was "unavailable" at the first trial because he or she stood on the Fifth Amendment privilege.

McGlothin does cite Sanders v. Sullivan, 863 F.2d 218 (2^nd Cir. 1988), where the Second Circuit held in a habeas case that a petitioner would be constitutionally entitled to a new trial if he proved that he was incarcerated on the basis of perjured testimony where the testimony was (1) material to the outcome and (2) credibly recanted after trial where the petitioner was not aware of its falsity until after trial. Sanders was, of course, not cited on appeal, so the First District had no occasion to consider the constitutional argument it makes.

Moreover, Sanders does not support relief here for two reasons. First, this is not a case where a critical trial witness has credibly recanted his testimony. Short has not recanted his trial testimony at all. Instead, now protected by the Double Jeopardy Clause, he is willing to testify whereas at trial he claimed the protection of the Fifth Amendment. As the Ohio court held, Short's evidence is no surprise to McGlothin: McGlothin's attorney called Short to the stand, hoping for exactly this testimony at trial. State v. McGlothin, 2007-Ohio-4707, 2007 Ohio App.LEXIS 4227, ¶ 42 (1^st Dist. Sept. 14, 2007).¹

Secondly, Sanders is no longer good law; it has been superseded by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") which provides that habeas relief can only be granted on the basis of law clearly established by holdings of the United States Supreme Court. The Second Circuit itself has recognized that Sanders was abrogated by the AEDPA. Drake v. Portuondo, 321 F.3d 338, 345 n.2 (2^nd Cir. 2003).

McGlothin notes that he mentioned the Due Process Clause when he appealed from the First District to the Ohio Supreme Court (Objections, Doc. No. 21, PageID 2351.) Even assuming that glancing reference would have been sufficient for fair presentation,² it was made too late. A habeas petitioner must present his federal constitutional claims at every stage of the state court process. Wagner v. Smith, 581 F.3d 410, 418 (6^th Cir. 2009).

McGlothin makes a separate constitutional argument that "when a state adopts a procedure it creates a 'substantial and legitimate expectation protected by the due process clause.'" (Objections, Doc. No. 21, PageID 2352, citing Hicks v. Oklahoma, 447 U.S. 343, 346 (1980), and Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454 (1989). Neither case stands for the proposition for which it is cited. In Hicks a sentence of forty years was imposed on a petitioner under a habitual offender statute later found unconstitutional. The Supreme Court held that the limitation of possible sentences by the later declaration of unconstitutionality created a substantive liberty interest.

Where, however, a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant's interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, cf. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, and that liberty interest is one that the Fourteenth Amendment preserves against arbitrary deprivation by the State. See Vitek v. Jones, 445 U.S. 480, 488-489, citing Wolff v. McDonnell, 418 U.S. 539;Greenholtz v. Nebraska Penal Inmates, supra;Morrissey v. Brewer, 408 U.S. 471.In this case Oklahoma denied the petitioner the jury sentence to which he was entitled under state law, simply on the frail conjecture that a jury might have imposed a sentence equally as harsh as that mandated by the invalid habitual offender provision. Such an arbitrary disregard of the petitioner's right to liberty is a denial of due process of law.

Hicks, supra, at 346. In other words, a State can create a substantive liberty (or property) interest which is then protected by the Due Process Clause from arbitrary...