Penland v. Bowerman
| Decision Date | 16 June 2022 |
| Docket Number | 1:18-cv-648 |
| Parties | ALEX PENLAND, Petitioner, v. SEAN BOWERMAN, Warden, Toledo Correctional Institution, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
ALEX PENLAND, Petitioner,
v.
SEAN BOWERMAN, Warden, Toledo Correctional Institution, Respondent.
No. 1:18-cv-648
United States District Court, S.D. Ohio, Western Division, Cincinnati
June 16, 2022
Douglas R. Cole District Judge
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
This is a habeas corpus case brought pro se by Petitioner Alex Penland to obtain relief from his convictions in the Common Pleas Court of Hamilton County for murder, trafficking in heroin, and having weapons under disability[1].
On April 28, 2022, District Judge Cole filed an Opinion and Order which appeared to the undersigned to resolve all outstanding objections or appeals from prior Magistrate Judge filings (ECF No. 105). The undersigned then asked the parties for their positions on whether the case was ripe for decision (ECF No. 106). Petitioner indicated an intention to file a motion for reconsideration and subsequently did so with respect to Judge Cole's overruling his objections to denial of leave to file an amended petition. That motion was filed (ECF No. 111) and has now been decided (ECF No. 112). The case is therefore ripe on the Petition (ECF No. 1), the State
Court Record (ECF No. 8), the Return of Writ (ECF No. 9), the Traverse (ECF No. 34), and Respondent's Sur-Reply (ECF No. 61).
Litigation History
The incident out of which this case arose is a shooting in the parking lot of the Golden Nugget Lounge on July 25, 2014. Out of that incident, Penland was indicted August 6, 2014, on two counts of murder with a firearm specification and one count of having a weapon while under disability (Indictment, State Court Record, ECF No. 8, PageID 30). At the time of the shooting, police discovered heroin in Penland's car. On the basis of that discovery, he was indicted again on March 25, 2015, for possessing and trafficking in that drug. Id. at PageID 37. Over Penland's objection, the cases were consolidated for trial which commenced May 19, 2015 (Transcript, State Court Record, ECF No. 8-1, PageID 498). The jury returned guilty verdicts on May 27, 2015, and Penland was sentenced on June 25, 2015, to fifteen years to life for murder plus nine years consecutive for the other convictions. Id. at PageID 74, et seq.
Represented by new counsel, Penland appealed to the Ohio First District Court of Appeals, pleading the following assignments of error:
1. The court abused its discretion in granting the motion to consolidate indictments
2. The court abused its discretion in allowing in testimony of an unrelated robbery that the appellant was not named in as either a victim or defendant
3. The trial court erred to the prejudice of defendant-appellant as there was insufficient evidence to convict
4. The trial court erred to the prejudice of defendant-appellant because the verdict was against the manifest weight of evidence.
5. The defendant received ineffective assistance of trial counsel.
6. The imposition of consecutive sentence on weapon under disability when there was already a gun specification was not supported by the record.
7. The defendant-appellant's right to a fair trial was compromised by cumulative error.
(ECF No. 8, Exhibit 16, Brief, PageID 83).
The First District Court of Appeals affirmed the convictions and sentence. State v. Penland, Nos. C-150413 and C-150414 (Ohio App. 1st Dist. May 6, 2016)(unreported; copy at State Court Record, ECF No. 8, Ex. 18, PageID 126 et seq.).
Penland did not appeal to the Supreme Court of Ohio and his time to do so expired June 20, 2016. Instead, on June 27, 2016, he filed pro se an Application to Reopen his direct appeal under Ohio R. App. P. 26(B), pleading that his appellate attorney had provided ineffective assistance by failing to include the following assignments of error:
1. When defense counsel fails to object to inappropriate questions designed to elicit inadmissible evidence, fails to object to misstatements of law and known facts, fails to object to state prosecutor's vouching for its witness's, and fails to object to inappropriate comments, and fails to investigate and call witness's favorable to appellant, the appellant receives ineffective assistance of counsel.
2. It is inexcusable for the Prosecution to continue a line of jury argument after an objection has been made and sustained.
3. Prosecutor's deliberated act of withholding known evidence from the jury and other acts constitute Prosecutorial Misconduct.
4. The trial court abused its discretion when it failed to use its mandatory sua sponte duty to stop improper argument of the government.
5. Where during a trial numerous error [sic] that taken together prejudice a fair trial, a new trial should be ordered.
(Application, ECF No. 8, Exhibit 19).
On December 21, 2016, Penland attempted to supplement his Application with the allegation that “appellate counsel failed to investigate the fact that the State's key witness, Steven J. Breunig on July 25, 2014, informed 911 operator Andrea Luck that he did not see the shooting (disc of 911 calls).” Id. at PageID 233-34.
The First District denied the motion to supplement because the supplemented Application would exceed the page limit set at Ohio R. App. P. 26(B)(4). It denied the claims related the state's failure to disclose a witness's allegedly exculpatory statements and that his trial counsel had been ineffective in failing to reasonably investigate and present at trial a defense based on those statements because those claims depended on evidence outside the record properly made only in a petition for post-conviction relief under Ohio Revised Code § 2953.21 and not on direct appeal. Finally, it found the other alleged deficiencies not to be prejudicial because unlikely to have affected the result. State v. Penland, Nos. C-150413 and C-150414 (Ohio App. 1st Dist. May 3, 2017)(unreported; copy at State Court Record, ECF No. 8, PageID 242).
On July 7, 2017, Penland filed a Notice of Appeal to the Supreme Court of Ohio from the First District's decision on direct appeal and, because he was late with that notice (by more than a year), a motion for delayed appeal (State Court Record, ECF No. 8, PageID 245, 248). The Supreme Court of Ohio denied that motion without opinion. State v. Penland, 150 Ohio St.3d 1428 (2017).
On September 23, 2016, Penland claims he submitted a petition for post-conviction relief under Ohio Revised Code § 2953.21. However, the State Court Record as filed by the Attorney General does not include a copy and it is not shown as docketed (See Docket Sheet, State Court Record, ECF No. 8, Ex. 51). Respondent's counsel claims not to have received a copy from the Clerk of the Common Pleas Court. Penland has produced a file-stamped copy of the purported
first page of that Petition (Traverse, ECF No. 34-1, PageID 1543), but not the balance of the document.
Common Pleas Judge Dinkelacker summarily denied post-conviction relief on September 26, 2016. His Entry reads in its entirety
This matter having come before the court on the defendant's Motion for Post-Conviction Relief. Upon consideration of the motion and all materials and law pertinent to the motion, it is found that the motion is not well taken and the same is therefore overruled.
(Entry, State Court Record, ECF No. 8, Ex. 30).[2]
Penland appealed, but the First District found that the record in neither of Penland's Common Pleas cases reflected the filing of a petition for post-conviction relief and therefore affirmed. State v. Penland, 2018 Ohio App. LEXIS 880 (1st Dist. Mar. 7, 2018), appellate jurisdiction declined, 153 Ohio St.3d 1433 (2018).
Penland filed a motion for relief from judgment under Rule 60(B) in the Common Pleas Court on May 15, 2018, claiming that Breunig's trial testimony was fraudulent because of the conflict between that testimony and his statement on the 911 call that he did not see the shooting (State Court Record, ECF No. 8, PageID 316 et seq.). Judge Dinkelacker denied that Motion with a form entry including language identical to that used in denying post-conviction relief. Id. at PageID 395.
On appeal, the First District decided that the Common Pleas Court had no jurisdiction to entertain that motion because he issue it raised was not reviewable under Ohio R. Civ. P. 60, but only on a petition for post-conviction relief under Ohio Revised Code § 2953. 21. Penland's Rule 60 motion was grossly untimely under Ohio Revised Code § 2951.23. State v. Penland, 2019 Ohio App. LEXIS 3118 (1st Dist. Jul. 26, 2019),
appellate jurisdiction declined, 2019-Ohio-4419 (Oct. 29, 2019). The First District modified the judgment to dismiss the motion on that basis and then affirmed.
Penland had filed his Petition in this Court September 14, 2018. On his motion, proceedings were stayed pending a decision by the First District Court of Appeals. Once the Supreme Court of Ohio declined appellate jurisdiction, this Court dissolved the stay and set a reply deadline (Decision of November 12, 2019, ECF No. 26). The two and one-half years since has been consumed adjudicating Penland's oft-renewed motions for stay and to amend (See Opinion and Order, ECF No. 105).
Penland pleads the following grounds for relief:
Ground One: The trial court abused its discretion in granting the motion to consolidate indictment.
Ground Two: The court abused its discretion in allowing in testimony of an unrelated robbery that petitioner was not named in as either a victim or defendant.
Ground Three: The court erred to the prejudice of petitioner because the verdict was against the manifest weight of the evidence.
Ground Four: The trial court erred to the prejudice of the petitioner as there was insufficient evidence to convict.
Ground Five: The imposition of consecutive sentence on weapon...
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