Moorer v. Warden, Marrion Corr. Facility

• Decision Date: 23 July 2012
• Docket Number: 1:11CV1079
• Parties: CORNELIUS MOORER, Petitioner v. WARDEN, Marrion Corr. Facility, Respondent
• Court: U.S. District Court — Northern District of Ohio

CORNELIUS MOORER, Petitioner

v.WARDEN, Marrion Corr. Facility, Respondent

1:11CV1079

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: July 23, 2012

JUDGE DONALD NUGENT

(Magistrate Judge Kenneth S. McHargh)

REPORT AND RECOMMENDED

DECISION OF MAGISTRATE JUDGE

McHARGH, MAG. J.

The petitioner Cornelius Moorer ("Moorer") has filed a petition pro se for a writ of habeas corpus, under 28 U.S.C. § 2254, regarding his 2008 conviction for drug trafficking in the Cuyahoga County (Ohio) Court of Common Pleas. (Doc. 1.) In his petition, Moorer sets forth five¹ grounds for relief:

[1.] Petitioner asserts that he was denied access to the courts because he was never properly given a ... hearing on his motion to withdraw his guilty plea and there is no transcripts that exist to support the record that a hearing was ever held on petitioners motion to withdraw the plea.

[2.] Conviction was obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant.

[3.] Conviction obtained by the use of evidence obtained pursuant to an unlawful arrest.

[4.] Petitioner was denied his Constitutional Right to due process on Appeal.

[5.] Petitioner was denied effective assistance of counsel.

(Doc. 1, § 12.)

The respondent filed a Return of Writ (doc. 8), and Moorer has filed a Traverse (doc. 10).

I. FACTUAL AND PROCEDURAL BACKGROUND

The Ohio Court of Appeals set forth the following factual and procedural background:

On June 15, 2007, a six-count indictment was issued against Moorer and his codefendant, Jason Lawrence ("Lawrence"). Counts 1 and 2 charged both Moorer and Lawrence with drug trafficking; to wit: crack cocaine, in violation of R.C. 2925.03(A)(2) and R.C. 2925.03(A)(1), respectively, with a major drug offender specification and a juvenile specification attached to both counts. Count 3 charged Moorer and Lawrence with possession of drugs, in violation of 2925.11(A), and included a major drug offender specification. Count 4 charged Moorer and Lawrence with possessing criminal tools, in violation of R.C. 2923.24(A). Counts 5 and 6 pertained only to Lawrence.

On June 27, 2007, Moorer was arraigned and entered a plea of not guilty; the trial court found him to be indigent and appointed counsel. On July 11, 2007, Moorer's initial counsel withdrew, and Moorer was appointed a second attorney.

On January 23, 2008, the State amended Count 2, drug trafficking, by reducing the amount of crack cocaine involved to be between 25 and 100 grams, as opposed to an amount greater than 100 grams, and removed both the major drug offender and juvenile specifications. Counts 1, 3, and 4 were nolled. Moorer then entered a plea of guilty to Count 2 as amended. As part of the plea agreement, the trial court, the State, and Moorer had agreed upon an eight-year prison sentence, and five years of mandatory postrelease control. Moorer was thenreferred to the probation department for a presentence investigation report.

On March 5, 2008, Moorer filed a pro se motion to disqualify his counsel. As the basis for this motion, Moorer argued that his counsel failed to assert defenses Moorer wanted to raise before the trial court. The trial court did not issue a ruling on Moorer's motion.

Before Moorer was sentenced, on March 17, 2008, he made an oral motion to withdraw his guilty plea, which was denied. Moorer was then sentenced to the agreed mandatory eight years in prison and five years of mandatory postrelease control. Moorer did not file a direct appeal.

More than six months later, on October 28, 2008, Moorer filed a pro se motion with the trial court to withdraw his guilty plea pursuant to Crim.R. 32.1. Moorer argued that the trial court erred when it failed to hold a hearing on his oral motion to withdraw his plea, and further, Moorer maintained that he did not knowingly change his plea. The State responded on November 4, 2008, by filing a motion for summary judgment. The State argued that the trial court was without jurisdiction to rule on Moorer's motion to withdraw his plea because his motion raised issues that should have been raised on direct appeal. On December 1, 2008, Moorer filed a motion to strike the State's motion for summary judgment arguing that the State should have filed a brief in opposition to Moorer's motion to withdraw his guilty plea and not a motion for summary judgment. On March 18, 2009, the trial court denied Moorer's motion to withdraw his guilty plea. The trial court did not rule on the State's motion for summary judgment or Moorer's motion to strike.

(Doc. 8, RX 31, at 1-3; State v. Moorer, No. 93155, 2009 WL 4695439, at *1 (Ohio Ct. App. Dec. 10, 2009).)

Moorer was sentenced on March 17, 2008 (doc. 8, RX 7), and on March 20 Moorer filed a notice of appeal pro se (doc. 8, RX 8). The court of appeals dismissed the appeal sua sponte, finding that Moorer had agreed to the mandatory sentence. (Doc. 8, RX 9.) Moorer did not appeal that decision to the Supreme Court of Ohio.

Several months later, however, Moorer filed a Motion for Relief from Judgment. (Doc. 8, RX 12.) The court of appeals denied the motion, which it stated was inappropriate at the appellate level. The court stated that a motion under App. Rule 26(A) would have been appropriate, but was "now untimely." (Doc. 8, RX 13.)

On Oct. 24, 2008, Moorer filed a Motion to Withdraw Plea under Crim. Rule 32.1. (Doc. 8, RX 16.) The trial court denied the motion. (Doc. 8, RX 20.)

Moorer appealed, and set forth the following assignments of error:

1. The trial court prejudicially erred when it refused to hold a hearing concerning the appellant's request to withdraw his plea of guilty.

2. The trial court abused its discretion in denying the appellant's motion to withdraw his guilty plea by adopting Civ. R. 56 which failed to comply with the mandates of Civ. R. 12(B) and no opposition was filed to properly oppose the motion.

(Doc. 8, RX 21-22.) On Dec. 10, 2009, the court of appeals affirmed the judgment of the trial court. (Doc. 8, RX 31; State v. Moorer, No. 93155, 2009 WL 4695439 (Ohio Ct. App. Dec. 10, 2009).) Moorer filed a motion for reconsideration, which was denied. (Doc. 8, RX 32-33.)

Moorer next appealed to the Supreme Court of Ohio, raising the following four propositions of law:

1. Did the Eighth District Court of Appeals err in denying Appellant's reconsideration based on Appellant's sentence being void?

2. Did the Eighth District Court of Appeals error when it affirmed the trial court's denial of Appellant's oral motion pursuant to R.C. 32.1 ?

(Doc. 8, RX 36.) On May 26, 2010, the Supreme Court denied leave to appeal and dismissed the appeal as not involving any substantial constitutional question. (Doc. 8, RX 37; State v. Moorer, 125 Ohio St.3d 1439, 927 N.E.2d 11 (2010).)

On July 12, 2010, Moorer filed a Motion for Resentencing in the trial court. (Doc. 8, RX 38.) The trial court denied his motion on Dec. 9, 2010. (Doc. 8, RX 42.)

Moorer filed a notice of appeal pro se (doc. 8, RX 43), but the court of appeals dismissed the appeal sua sponte, finding the appeal barred by res judicata. (Doc. 8, RX 46.) Moorer filed a motion for reconsideration, which was denied. (Doc. 8, RX 48-49.) Moorer did not appeal that judgment further.

Finally, Moorer filed a Request for a Final Appealable Order in the trial court on May 23, 2011, asserting that the trial court had failed to journalize its denial of his oral motion to withdraw his guilty plea. (Doc. 8, RX 50.) In response, the trial court issued a nunc pro tunc entry reflecting the judgment and sentence imposed in open court. (Doc. 8, RX 52.)

II. HABEAS CORPUS REVIEW

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, which provides the standard of review that federal courts must apply when considering applications for a writ of habeas corpus. Under the AEDPA, federal courts have limited power to issue a writ of habeas corpus with respect to any claim which was adjudicated on the merits by a state court. The Supreme Court, in Williams v. Taylor, provided the following guidance:

Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied -- the state-court adjudication resulted in a decision that (1) "was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-13 (2002). See also Lorraine v. Coyle, 291 F.3d 416, 421-422 (6th Cir. 2002), cert. denied, 538 U.S. 947 (2003).

A state court decision is "contrary to" clearly established Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Williams, 529 U.S. at 405. See also Price v. Vincent, 538 U.S. 634, 640 (2003).

A state court decision is not unreasonable simply because the federal court considers the state decision to be erroneous or incorrect. Rather, the federal court must determine that the state court decision is an objectively unreasonable application of federal law. Williams, 529 U.S. at 410-12; Lorraine, 291 F.3d at 422.

Moorer has filed his petition pro se. The pleadings of a petition drafted by a pro se litigant are held to less stringent standards than formal pleadings drafted by...