Parker v. Wainwright

• Docket Number: 4:18 cv 2496
• Decision Date: 24 April 2020
• Parties: TERENCE W. PARKER, Petitioner, v. LYNEAL WAINWRIGHT, Respondent.
• Court: U.S. District Court — Northern District of Ohio

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TERENCE W. PARKER, Petitioner, v. LYNEAL WAINWRIGHT, Respondent.

No. 4:18 cv 2496

United States District Court, N.D. Ohio, Eastern Division

April 24, 2020

CHRISTOPHER A. BOYKO, JUDGE.

REPORT & RECOMMENDATION

THOMAS M. PARKER, MAGISTRATE JUDGE.

I. Introduction

Petitioner Terence W. Parker^[1], an Ohio prisoner serving an aggregate sentence of twelve-and one-half years after having been convicted of robbery, intimidation of a witness, menacing by stalking and disrupting public service, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Parker challenges the constitutionality of his convictions and sentences in State v. Parker, Case No. 15 CR 548 (Mahoning County Court of Common Pleas), claiming he was deprived of his right of confrontation, that there was insufficient evidence to convict him of robbery and that his robbery convictions were against the manifest weight of the evidence.^[2] ECF Doc. 1. Respondent, Lyneal Wainwright, ^[3] warden of the Marion Correctional Institution, Marion, Ohio filed a return of writ on December 14, 2018. ECF Doc. 8. Parker filed a traverse on January 18, 2019. ECF Doc. 9.

Because Parker's Ground One claim lacks merit and/or raises only a noncognizable manifest weight of the evidence claim, and because his Ground Two claim has been procedurally defaulted and lacks merit, I recommend that the Court DISMISS each claim and DENY Parker's petition for writ of habeas corpus.

II. Procedural History

A. State Conviction

On June 25, 2015, a Mahoning County, Ohio grand jury returned a two-count indictment against Parker charging him with Robbery, in violation of Ohio Rev. Code § 2911.02(A)(1)(b), a second-degree felony (Count One) and Felonious Assault, in violation of Ohio Rev. Code § 2903.11(A)(2)(d), a second-degree felony (Count Two). ECF Doc. 8-1 at 4. Parker appeared with retained counsel, was ordered to be held without bond, and pleaded not guilty. ECF Doc. 81 at 184-185. The grand jury returned a nine-count superseding indictment on September 3, 2015, charging Parker with two counts of felonious assault in violation of Ohio Rev. Code § 2903.11 (A)(2)(d), second-degree felonies (Counts One and Two); one count of Aggravated Robbery in violation of Ohio Rev. Code § 2911.01(A)(1)(c), a first-degree felony (Count Three); one count of Robbery in violation of Ohio Rev. Code § 2911.02(A)(1)(b), a second degree felony (Count Four); one count of Robbery in violation of Ohio Rev. Code § 2911.02(A)(2)(b), a second-degree felony (Count Five); one count of Intimidation of Victim in violation of Ohio Rev. Code § 2921.04(B)(1)(d), a third-degree felony (Count Six); one count of Intimidation of Victim in violation of Ohio Rev. Code § 2921.04(B)(2)(d), a third-degree felony (Count Seven); one count of Menacing by Stalking in violation of Ohio Rev. Code § 2903.211(A)(1)(b)(2)(e), a fourth-degree felony (Count Eight); and one count of Disrupting Public Services in violation of Ohio Rev. Code § 2909.04(A)(1)(c), a fourth-degree felony (Count Nine).

The case proceeded to the date scheduled for jury trial, September 15, 2015. Before trial commenced, the trial court granted the state's motion to amend Count Seven of the superseding indictment from Intimidation of Victim to Intimidation of Witness, consistent with the language of the actual charge. ECF Doc. 8-1 at 10. On September 16, 2015, the jury returned verdicts finding Parker NOT GUILTY of the charges in Counts One (Felonious Assault), Two (Felonious Assault), Three (Aggravated Robbery) and Six (Intimidation of Victim). The jury found Parker GUILTY of the charges Count Four (Robbery), Five (Robbery), Seven (Intimidation of Witness), Eight (Menacing by Stalking, with the additional finding that Parker had a history of violence toward the victim or any other person), and Nine (Disrupting Public Service). ECF Doc. 8-1 at 11.

The trial court conducted a sentencing hearing on September 17. 2015. Upon stipulation of the parties, the trial court merged the Robbery charges in Count Four and Count Five, and the state elected to have Parker sentenced on Count Four. ECF Doc. 8-1 at 14. After hearing from the state, the defendant, and a victim, the trial court ordered Parker to serve an eight-year prison term on the Count Four Robbery charge, a thirty-six-month term on the Count Seven Intimidation of Witness Charge, an eighteen month term on the Count Eight Menacing by Stalking charge, and an eighteen-month term on the Count Nine Disrupting Public Services charge. Parker's Count Eight and Count Nine sentences were ordered to be served concurrently to one another; all other sentences were to be served consecutively. Parker's aggregate sentence was twelve-and-one-half years' imprisonment. Parker was notified he would be required to serve three years of mandatory post release control after his release from prison. ECF Doc. 8-1 at 15-16.

B. Direct Appeal

Parker's trial court counsel filed a notice of appeal to the Ohio Court of Appeals on September 29. 2015. ECF Doc. 8-1 at 17. Parker, represented by new counsel, filed his merit brief on March 24, 2016. Parker asserted eight assignments of error:

I. Appellant's convictions for robbery as contained in counts 4 and 5 were based on insufficient evidence as there was no concurrence between the mental state to commit a theft offense and when he had a weapon and/or threatened to and/or inflicted harm thereby requiring reversal.

II. Appellant's convictions for robbery as contained in counts 4 and 5 were against the manifest weight of the evidence as there was no concurrence between the mental state to commit a theft offense and when he had a weapon and/or threatened to and/or inflicted harm thereby requiring reversal.

III. Appellant's convictions for aggravated menacing and robbery (under either count 4 or 5) are allied offenses of similar import thereby depriving the trial court from imposing a sentence on both counts pursuant to R.C. 2941.25.

IV. The convictions for robbery (under either counts 4 or 5) and disrupting public services are allied offenses of similar import thereby depriving the trial court from imposing a sentence on both counts pursuant to R.C. 2941.25.

V. Appellant was denied the effective assistance of counsel in that counsel failed to argue for merger of disrupting public service and/or menacing by stalking with the convictions for robbery.

VI. The conviction of intimidation of a witness was based on insufficient evidence as the State offered no proof that a criminal action was pending at the time of the alleged threat or that a threat was made and/or attempted.

VII. The conviction for intimidation of a witness was against the manifest weight of the evidence as there is no allegation of a threat being made against the witness.

VIII. Appellant was prejudiced by the joinder of the menacing by stalking count with all other counts as this permitted the state to introduce evidence of appellant's criminal history without appellant testifying.

ECF Doc. 8-1 at 20-21. The state filed an appellee brief on July 19, 2016. ECF Doc. 8-1 at 43.

The Ohio Court of Appeals affirmed Parker's convictions and sentences in a journal entry and opinion filed on June 16, 2017.

Parker filed a pro se notice of appeal on July 21, 2017. ECF Doc. 8-1 at 106. Parker's pro se Memorandum in Support of Jurisdiction asserted four propositions of law:

[Proposed] Proposition of Law No. 1: Whether, Appellant's constitutional rights of the 4th, 5th, 6th, 8th & 14th Sec.1 Amendment Clauses were denied, deprived and/or prejudiced. Where defense counsel ineffectively allowed a breakdown in the adversarial testing process by and through allowing Appellant's convictions for Robbery as contained in counts 4 & 5, were based an insufficient evidence as there was no concurrence between the mental state to commit a theft offense and when he had a weapon and/or threatened to and/or inflict harm thereby requiring reversal.

[Proposed] Proposition of Law No. 2: Whether, Appellant's constitutional rights of the 4th, 5th, 6th, 8th & 14th Sec. l Amendment Clauses were denied, deprived and/or prejudiced. Where defense counsel ineffectively allowed a breakdown in the adversarial testing process by and through allowing Appellant's convictions for Robbery as contained in counts 4 & 5, were against the manifest weight of the evidence as there was no concurrence between the mental state to commit a theft offense and when he had a weapon and/or threatened to and/or inflict harm thereby requiring reversal.

[Proposed] Proposition of Law No. 3: Whether, Appellant's constitutional rights of the 4th, 5th, 6th, 8th & 14th Sec.1 Amendment Clauses were denied, deprived and/or prejudiced. Where defense counsel ineffectively allowed a breakdown in the adversarial testing process by and through allowing Appellant's convictions for Aggregated Menacing and Robbery (under counts 4 & 5) are allied offenses of similar import thereby depriving the trial court from imposing a sentence on both counts pursuant to R.C. 2941.25 requiring reversal.

[Proposed] Proposition of Law No. 4: Whether, Appellant's constitutional rights of the 4th, 5th, 6th, 8th & 14th Sec.1 Amendment Clauses were denied, deprived and/or prejudiced. Where defense counsel ineffectively allowed a breakdown in the adversarial testing process by and through allowing Appellant's convictions for Robbery as contained in counts 4 & 5, disrupting Public Services are allied offenses of similar import thereby depriving the trial court from imposing a sentence on both counts pursuant to R.C. 2921.25 requiring reversal.

ECF Doc. 8-1 at 109. The state filed nothing in response to Parker's memorandum. ECF Doc. 8-1 at 200. The Supreme Court of Ohio declined to accept jurisdiction of the appeal. State v. Parker, 151...