McSwain v. Buchanan

• Decision Date: 31 March 2020
• Docket Number: Case No. 1:18cv2361
• Parties: DORN McSWAIN, Petitioner, v. TIM BUCHANAN, Warden, Respondent.
• Court: U.S. District Court — Northern District of Ohio

DORN McSWAIN, Petitioner, v. TIM BUCHANAN, Warden, Respondent.

Case No. 1:18cv2361

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

March 31, 2020

JUDGE PAMELA A. BARKER

MAGISTRATE JUDGE THOMAS M. PARKER

REPORT & RECOMMENDATION

I. Introduction

Dorn McSwain, an Ohio prison inmate serving a ten-year aggregate sentence for rape, kidnapping and gross sexual imposition, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254, contending that the state courts violated his constitutional rights in several ways at the trial and appellate court levels in State v. McSwain. ECF Doc. 1. Respondent, Tim Buchanan, warden of the Noble Correctional Institution in Caldwell, Ohio has opposed the petition in his answer and return of writ. ECF Doc. 7. Walker has filed a traverse in support. ECF Doc. 9. The matter is before me by an automatic order of reference under Local Rule 72.2 for preparation of a report & recommendation pursuant to Local Rule 72.1.

Because McSwain's petition was not "verified" as required by 28 U.S.C. § 2242 or "signed under penalty of perjury" as required by Rule 2(c)(5) of the Rules Governing Section 2254 Cases in the United States District Courts, I recommend that the Court order McSwain to SHOW CAUSE why his petition should not be DISMISSED for failure to comply with these requirements. In the alternative, should the Court decide to overlook the lack of verification, because McSwain's claims lack merit, have been procedurally defaulted and/or assert only noncognizable state law issues, I recommend that the court DISMISS the claims and DENY McSwain's petition for writ of habeas corpus.

II. State Court Case History

A. Trial Court and Direct Appeal Proceedings

On September 8, 2016 a Cuyahoga County, Ohio grand jury returned an indictment charging McSwain with six counts. Counts One, Two, Three and Four charged McSwain with the Rape (F1) of T.M.¹, in violation of Ohio Rev. Code §2907.02(A)(2). Count Five charged McSwain with Gross Sexual Imposition (F4) against T.M., in violation of Ohio Rev. Code § 2907.05(A)(1); and Count Six charged McSwain with Kidnapping (F1) of T.M., in violation of Ohio Rev. Code § 2905.01(A)(4). The grand jury attached a sexual motivation specification to Count Six under Ohio Rev. Code § 2941.147(A). The victim alleged in the indictment was Jane Doe, and the offense date alleged in each count was July 3, 2001. ECF Doc. 7-1 at 4. McSwain pleaded not guilty on September 22, 2016. ECF Doc. 7-1 at 7.

The matter proceeded to trial on December 12, 2016; on the first day of trial, McSwain waived his right to trial by jury. ECF Doc. 7-1 at 8. On December 15, 2016, the trial court found McSwain not guilty of one rape count but guilty of the remaining counts and the specification. ECF Doc. 7-1 at 10. On January 19, 2017, the trial court sentenced McSwain to serve a ten-year prison term on each rape count, a ten-year term on the kidnapping count, and an eighteen-month term on the gross sexual imposition count. All the prison terms were ordered tobe served concurrently for an aggregate sentence of ten years. McSwain was notified he would be required to serve a mandatory period of five years of post-release, that he was classified as a sexually oriented offender, and that would be required to register as a Tier III sex offender. ECF Doc. 7-1 at 11.

McSwain, represented by new counsel, electronically filed a notice of appeal in the Ohio Court of Appeals on February 10, 2017. ECF Doc. 7-1 at 14. McSwain's merit brief, filed on April 22, 2017, raised five assignments of error:

FIRST ASSIGNMENT OF ERROR

The trial court erred by failing to grant a judgment of acquittal, pursuant to Crim. R. 29(a), on the charges, and thereafter entering a judgment of conviction of those offenses as those charges were not supported by sufficient evidence, in violation of defendant's right to due process of law, as guaranteed by the Fourteenth Amendment to the United State Constitution.

SECOND ASSIGNMENT OF ERROR

Appellant's convictions are against the manifest weight of the evidence.

THIRD ASSIGNMENT OF ERROR

Appellant was denied his right to a fair trial when the trial court allowed expert testimony from a witness who was not deemed to be an expert.

FOURTH ASSIGNMENT OF ERROR

The trial court committed plain error by ordering convictions for separate counts because the trial court failed to make a proper determination as to whether those offenses are allied offenses pursuant to R.C. 2941.25 and they are part of the same transaction under R.C. 2929.14.

FIFTH ASSIGNMENT OF ERROR

The trial court erred by ordering Appellant to pay costs in the journal entry when it had previously suspended court costs on the record.

ECF Doc. 7-1 at 24. The State of Ohio filed an opposition brief on June 5, 2017. ECF Doc. 7-1 at 47. The Ohio Court of Appeals affirmed McSwain's convictions and sentences in a judgment entry and opinion filed on November 9, 2017 but remanded the case to permit the trial court to correct a court cost issue that is not relevant to McSwain's federal habeas claims. ECF Doc. 7-1at 64. See State v. McSwain, 8th Dist. Cuyahoga No. 104451, 2017-Ohio-8489, 2017 Ohio App. LEXIS 4911 (November 9, 2017).

On December 21, 2017, McSwain filed a pro se notice of appeal in the Ohio Supreme Court. ECF Doc. 7-1 at 87. McSwain's memorandum in support of jurisdiction raised three propositions of law:

I. The trial court erred by failing to grant a judgment of acquittal, pursuant to Crim. R. 29(A), the charges were not supported by sufficient evidence in violation of the Appellant's due process right as guaranteed by the Fourteenth Amendment of the United States Constitution.

II. The Appellant was denied his right to a fair trial, when the trial court allowed expert testimony from a witness who was not deem[ed] to be an expert.

III. The trial court committed plain error by ordering convictions for separate counts because the trial court failed to make a proper determination as to whether those offenses are allied offenses pursuant to R.C. 2941.25 and they are part of the same transaction under R.C. 2929.14.

ECF Doc. 7-1 at 90. The state waived the right to file a response memorandum. ECF Doc. 7-1 at 120. The Supreme Court of Ohio declined to accept jurisdiction of the appeal in an entry filed on April 25, 2018. ECF Doc. 7-1 at 121, see also State v. McSwain, 152 Ohio St.3d 1446, 2018-Ohio-1600, 96 N.E.3d 300.

B. Application to Reopen Direct Appeal

While his request for Ohio Supreme Court review was being considered, McSwain commenced proceedings in the Ohio Court of Appeals to reopen his direct appeal. First, on January 30, 2018, McSwain filed a pro se motion in the Ohio Court of Appeals requesting that he be furnished a copy of his trial transcript so that he could file an application to reopen under Ohio App. R. 26(B). ECF Doc. 7-1 at 122. On February 1, 2018 the court of appeals denied the motion but indicated McSwain could request a transcript once he filed his Rule 26(B) application. ECF Doc. 7-1 at 125.

McSwain filed his pro se Rule 26(B) motion on February 16, 2018. ECF Doc. 7-1 at 126. McSwain's motion asserted that his appellate counsel was ineffective because he never asserted an assignment of error arguing trial counsel's ineffectiveness for failing to assert that the preindictment delay in prosecuting the case prejudiced McSwain's ability to defend himself (asserting several alleged types of prejudice); and he asserted that appellate counsel was ineffective for not asserting an assignment of error based on the state's alleged loss of exculpatory evidence and for its failure to turn over hospital records of the victim. The state filed an opposition brief in which it asserted that McSwain's application to reopen was untimely under Ohio App. R. 26(B)(1). And the state contended that McSwain's arguments would have failed on the merits had they been raised by appellate counsel. ECF Doc. 7-1 at 135. On May 7, 2018 the Ohio Court of Appeals denied McSwain's application to reopen because he filed it after the deadline set in Ohio App. R. 26(B)(1) and failed to show good cause for the late filing. ECF Doc. 7-1 at 142; see State v. McSwain, Eight Dist. Cuyahoga No. 105451, 2018-Ohio-1827; 2018 Ohio App. LEXIS 1959. McSwain did not commence a timely appeal of that decision to the Supreme Court of Ohio.²

Despite being specifically advised he could do so, nothing in the record indicates McSwain requested a copy of his trial transcript from the court of appeals after he filed his Rule 26(B) application.

III. Federal Habeas Corpus Petition

On October 1, 2018, McSwain, placed his pro se³ petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the prison mailing system.⁴ ECF Doc. 1. McSwain did not verify or sign his petition under penalty of perjury. And McSwain's petition did not "substantially follow . . . the form appended to" the Rules Governing Section 2254 Cases in the United States District Courts (hereinafter "Habeas Rules").

McSwain's petition raises three claims for relief. Because McSwain did not use the standard habeas corpus petition form, his petition mixes supporting fact statements with his arguments. I will paraphrase the factual statements offered in support of his three grounds for relief:

GROUND ONE: THE CHARGES WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE IN VIOLATION OF THE PETITIONER'S DUE PROCESS RIGHT AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. ECF Doc. 1 at 5.

PARAPHRASE OF GROUND ONE SUPPORTING FACTS: McSwain challenges the sufficiency of the trial evidence to support his convictions. McSwain essentially offers his version of what happened before and during the incident that is different from the state's version. He asserts that he saw the victim, T.M., leaving a bar on Fleet Avenue with her friend. As T.M. approached her car, McSwain propositioned her, offering to smoke crack cocaine with her in exchange for sex. He asserts T.M. agreed to the...