Mitchell v. Smith

• Decision Date: 15 July 2011
• Docket Number: CASE NO. 2:10-CV-00299
• Parties: CHARLES A. MITCHELL, Petitioner, v. KEITH SMITH, WARDEN, Respondent.
• Court: U.S. District Court — Southern District of Ohio

CHARLES A. MITCHELL, Petitioner,

v.KEITH SMITH, WARDEN, Respondent.

CASE NO. 2:10-CV-00299

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

July 15, 2011

JUDGE FROST

MAGISTRATE JUDGE KING

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 Traverse, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's request for an evidentiary hearing (see Traverse), is DENIED.

FACTS and PROCEDURAL HISTORY

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

The victim's account of events is as follows:

On June 29, 2006, Denise Mitchell was at home when she heard a noise at the door which she believed to be the banging of the screen door. When she opened the security door to close the screen door, she observed a shadow and realized her ex-husband, Charles Mitchell, was standing on her porch, holding a tire iron in his hand. (T. 128-131). Appellant Mitchell forced her back into the house and ordered her to remove her clothes. (T. 133-138). He then ordered her to fondle herself while he watched. He then proceeded to chastise her for harassing him. After some time, Ms. Mitchell convinced Appellant she heard her daughter coming home. When Appellant stepped outside to check, Ms. Mitchell called 911. Although she was not able to speak at length with the dispatcher, she was able to hidethe phone and keep the line open. Officers were dispatched to the home. Upon their arrival, Ms. Mitchell broke a window and yelled for help. (T. 152-153). Thereafter, Appellant was taken into custody. (T. 154).

On July 7, 2006, Defendant-appellant Charles A. Mitchell was indicted by the Muskingum County Grand Jury on one count of Aggravated Burglary, an F1, in violation of R.C. 4911.12(A)(2); one count of Kidnapping with a Sexual Motivation Specification and a Sexually Violent Predator Specification, an F1, in violation of R.C. 4f905.01(A)(4); and four counts of Rape, an F1, in violation of R.C. 4f907.02(A)(2).

On July 12, 2006, Appellant pled not guilty to the above-listed charges.

On October 31, 2006, the matter came before the trial court for jury trial.

At trial, Appellant took the stand and testified. Appellant began by detailing his criminal history. (T. at 315-319). Appellant then testified that after playing in his golf league and drinking a few beers, he decided to pay an unannounced visit to his ex-wife at approximately 11:00 p.m. (T. at 338). He further testified that he took a tire iron to the door after he received no answer to his first knock, stating that he took it for protection because it was dark and raining. (T. at 341-342). He further testified that his ex-wife then came to the door and invited him in. (T. at 342-343) He then testified that after about a twenty minute conversation, he and his ex-wife began kissing which led to them having sex. (T. at 343-348). He stated that at one point Denise thought she heard something outside and was afraid that it might be their daughter coming home, so he went outside to investigate. (T. at 349-350). He testified that he then returned to the trailer and at that time, he and Denise went into the bedroom and continued to have sex until the police arrived. (T. at 343-354). When he went to answer the door, his ex-wife inexplicably broke a window out of the house and screamed to the officers for help. With that he was arrested. (T. at 354).

On November 1, 2006, the cause was submitted to the jury. Following four hours of deliberation, the jury returned verdicts of guilty as to the counts of Aggravated Burglary and Kidnapping. The jury returned not guilty verdicts to the four counts of Rape and of the Sexual Motivation Specification and Sexually Violent PredatorSpecification of count two.

On December 11, 2006, after a pre-sentence investigation, the trial court sentenced Appellant to a stated prison term of ten (10) years on the Aggravated Burglary count and a stated prison term of ten (10) years on the Kidnapping count. These sentences were ordered to be served consecutive to one another.

State v. Mitchell, No. CT2006-0090, 2007 WL 2994142, at *1 (Ohio App. 5th Dist. Oct. 9, 2007). Petitioner filed a timely appeal in which he raised the following assignments of error:

I. THE APPELLANT IS ENTITLED TO A JUDGMENT OF ACQUITTAL/REVERSAL BECAUSE THE JURY'S VERDICT IS INCONSISTENT.

II. THE TRIAL COURT ERRED IN ALLOWING AN INHERENTLY CONFUSING FORM FOR THE SECOND COUNT.

III. THE TRIAL COURT ERRED IN ALLOWING TESTIMONY REGARDING APPELLANT'S MISDEMEANOR RECORD CLEARLY IN CONTRAVENTION OF EVIDENCE RULE 609.

IV. THE TRIAL COURT ERRED WHEN IT DISMISSED A JUROR OVER THE OBJECTION OF APPELLANT'S COUNSEL.

V. THE VERDICTS ARE NOT SUSTAINED BY THE SUFFICIENCY OF EVIDENCE AND ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

VI. THE TRIAL COURT ERRED WHEN IT IMPOSED TWO CONSECUTIVE MAXIMUM SENTENCES - R.C. 4953.08.

VII. THE TRIAL COURT ABUSED IT DISCRETION IN SENTENCING.

Id. at *2. On October 9, 2007, the state appellate court affirmed the trial court's judgment. Id. On March 12, 2008, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. See Exhibits 12, 13 to Return of Writ.

On March 9, 2009, appellant filed a motion to reopen his appeal pursuant to Ohio R. App.P. 26(B), which motion was granted. Petitioner raised the following assignments of error:

I. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BY STRUCTURAL CONSTITIONAL (SIC) ERROR WHICH OCCURRED WHEN HE WAS CONVICTED OF AGGRAVATED BURGLARY AND KIDNAPPING BASED UPON AN INSUFFICIENT INDICTMENT WHICH DID NOT INCLUDE THE DEFAULT ELEMENT OF RECKLESSNESS WITH RESPECT TO EACH COUNT.

II. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS AND WAS TWICE PLACED IN JEOPARDY IN VIOLATION OF ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BY STRUCTURAL CONSTITUTIONAL ERROR WHICH OCCURRED WHEN HE WAS CONVICTED OF AGGRAVATED BURGLARY AND OF A PREDICATE KIDNAPPING UNDER R.C. 2905.01(A)(4) AFTER THE JURY ACQUITTED HIM OF BOTH RAPE AND OF A SEXUAL MOTIVATION SPECIFICATION AS TO THE KIDNAPPING COUNT WHICH AROSE OUT OF THE SAME OFFENSE.

III. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL IN VIOLATION OF ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH, SIXTH AND FOURTEENTH AMENEMENTS (SIC) TO THE UNITED STATES CONSTITUTION BY STRUCTURAL CONSTITUTIONAL ERROR WHICH OCCURRED WHEN HE WAS CONVICTED OF AGGRAVATED BURGLARY AND KIDNAPPING IN THE ABSENCE OF SUFFICIENT EVIDENCE AND WHERE THE VERDICTS WERE OTHERWISE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

IV. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL IN VIOLATION OF ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BY STRUCTURAL CONSTITUTIONAL ERROR WHICH OCCURRED WHEN HE WAS TWICE PLACED

IN JEOPARDY AND GIVEN CONSECUTIVE SENTENCES FOR THE SAME ALLIED OFFENSES OF AGGRAVATED BURGLARY AND KIDNAPPING WHICH INVOLVED NEITHER SEPARATE INCIDENTS NOR SEPARATE ANIMI.

V. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS, A FAIR TRIAL, A FAIR APPEAL AND THE EFFECTIVE ASSISTANCE OF BOTH TRIAL AND APPELLATE COUNSEL BY STRUCTURAL CONSTITUTIONAL ERROR IN THE ABSENCE OF WHICH HE WOULD HAVE BEEN ACQUITTED AND OTHERWISE GIVEN ONLY A SINGLE PRISON TERM.

VI. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS UNDER ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION BY STRUCTURAL CONSTITUTIONAL ERROR WHICH OCCURRED WHEN HE WAS GIVEN MAXIMUM CONSECUTIVE PRISON TERMS IN THE ABSENCE OF SUFFICIENT FINDINGS REQUIRED BY LAW.

VII. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL BY CUMULATIVE STRUCUTAL (SIC) CONSTITUTIONAL ERROR.

State v. Mitchell, CT2006-0090, 2009 WL 3155055, at *1-2 (Ohio App. 5th Dist. Sept. 30, 2009). On September 30, 2009, the state appellate court overruled Petitioner's assignments of error. On February 10, 2010, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Mitchell, 124 Ohio St.3d 1476 (2010).

On April 9, 2010, Petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of the Constitution of the United States based upon the following grounds:

1. Petitioner was denied due process of law in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution when he was put on trial off an indictment that did not contain all the elements of the offense charged.

2. Petitioner was denied due process in violation of the Fourteenth Amendment to the United States Constitution when he was convicted of aggravated burglary and kidnapping when the State failed to prove each and every element beyond a reasonable doubt.

3. Petitioner was denied due process of law in violation of the Fourteenth Amendment to the United States Constitution and the prohibition against double jeopardy in violation of the Fifth and Sixth Amendments to the United States Constitution was violated when Petitioner was convicted.

4. Petitioner was denied due process and the prohibition against double jeopardy violated in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution when he received consecutive sentences for aggravated burglary and kidnapping where they are allied offenses of similar import.

5. Petitioner was denied due process of law in violation of the Fourteenth Amendments to the United States Constitution when he was given

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