Perry v. Bradshaw, 1:15CV2601

• Decision Date: 15 September 2016
• Docket Number: 1:15CV2601
• Parties: KYLE J. PERRY, Petitioner v. MARGARET BRADSHAW, Warden, Respondent
• Court: U.S. District Court — Northern District of Ohio

KYLE J. PERRY, Petitioner v. MARGARET BRADSHAW, Warden, Respondent

1:15CV2601

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

September 15, 2016

JUDGE JOHN R. ADAMS

(Mag. Judge Kenneth S. McHargh)

REPORT AND RECOMMENDATION

McHARGH, MAG. JUDGE

This 28 U.S.C. § 2254 petition is before the magistrate judge pursuant to Local Rule 72.2(b)(2). Before the court is the petition of Kyle J. Perry for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The petitioner is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence¹ in the case of State of Ohio v. Perry, Case No. 10-CR-00730 (Lake County March 20, 2014). (Doc. 7, RX 92.) For the following reasons, the magistrate judge recommends that the petition be denied.

Perry filed a petition pro se for a writ of habeas corpus arising out of his 2011 convictions for multiple counts of burglary, receiving stolen property, and othercrimes, in the Lake County (Ohio) Court of Common Pleas. In his petition, Perry raises four grounds for relief:

1. Petitioner's Sixth Amendment jury trial rights were violated when the [trial] court denied repeated requests to appoint new counsel or allow petitioner to represent himself.

2. Petitioner was denied the due process protections of the Fourteenth Amendment when the trial court denied his motion to suppress evidence obtained in violation of the Fourth Amendment without considering all of the facts concerning the illegal search and seizure.

3. Petitioner was denied his Sixth Amendment jury trial right to a fair and impartial trial when the trial court denied his motion in limine regarding evidence related to cell phone triangulation.

4. The trial court erred by sentencing petitioner to a term of imprisonment contrary to statute when the findings were not supported by the record.

(Doc. 1, § 12.) The respondent has filed a Return of Writ (doc. 7), and the petitioner has filed a Traverse (doc. 9).

I. FACTUAL AND PROCEDURAL BACKGROUND

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

Appellant [Perry] was implicated in a series of burglaries after stolen items were recovered from automobiles during two respective warrantless searches. As the investigation unfolded, additional incriminating items were later recovered in appellant's temporary residence at the Mosley Select Suites Hotel after a search warrant for the premises was executed.

A 14-count indictment was filed against appellant, charging him with the following: five counts of burglary, second-degree felonies inviolation of R.C. 2911.12(A)(2), with a firearm specification attached to one count; three fifth-degree felony counts of receiving stolen property, in violation of R.C. 2913.51(A); two fourth-degree felony counts of receiving stolen property, in violation of R.C. 2913.51(A), each with firearm specifications attached; three counts of having weapons under disability, third-degree felonies in violation of R.C. 2923.13(A)(2), each with firearm specifications attached; and one count of engaging in a pattern of corrupt activity, a first-degree felony in violation of R.C. 2923.32(A)(1).

Soon thereafter, appellant filed a multitude of pre-trial motions. First, appellant filed multiple motions to suppress, arguing that the evidence obtained during the automobile searches on May 22, 2010, and July 20, 2010, should have been suppressed.

During the hearing on the motions, Officer Steven Shum of the Wickliffe Police Department testified concerning the automobile search on May 22, 2010. Officer Shum explained that he initiated a traffic stop around 1:00 a.m. of an automobile which failed to display a rear license plate. Appellant was the driver of the automobile and one Jimmie Ivery was the passenger. Officer Shum testified he had familiarity with both appellant and Ivery, as he knew they were both involved in at least one prior burglary. As Officer Shum inquired about the status of a rear license plate, he detected a "strong odor" of marijuana from inside the car. Based on the strong odor, and after back-up arrived, Officer Shum asked the occupants to step out of the vehicle so that an automobile search could be executed. During the search, Ivery admitted that he had been smoking marijuana earlier that day in response to what would be found in the cabin and whether anyone had been smoking. Officer Shum noted that Ivery denied that any marijuana was in the car. The search uncovered "little tiny bits" of what Officer Shum believed to be marijuana located on the floor in front of the passenger seat. Officer Shum testified the amount was so small it was immeasurable. The officer observed dark gloves, a black stocking cap, and two pairs of shoes in the back seat area. Additionally, the officer noted that the occupants were wearing dark dress pants and the dome light of the automobile had been removed. A search of Ivery also uncovered two blue plastic pen lights.

Based on his suspicions, which arose from the marijuana residue, the strong odor, Ivery's admission, the missing rear license plate, the removed dome light, and the dark clothing, Officer Shum proceeded to open and search the trunk of the automobile, suspecting that morecriminal activity was afoot. In the trunk, Officer Shum did not find drugs but did find "burglary tools," including pry bars, a sledge hammer, a ball-joint tool, a duffle bag, a ski mask, ear warmers, and another set of gloves. The license plate and several screws were also located in the truck [sic], casting doubt on appellant's excuse that he had no screws to affix the plate to his car. More importantly, a Toshiba laptop computer, a pair of binoculars, a Minolta digital camera, and an Olympus digital camera were uncovered. Officer Shum explained that, at that point, he believed the electronics were "probably stolen"; thus, he seized the electronic equipment and tools for further investigation. Appellant and Ivery were sent on their way.

Officer Isaac Petric of the Wickliffe Police Department testified to the second stop on July 20, 2010, at 2:40 a.m. Officer Petric testified he saw Ivery driving a vehicle. Officer Petric had a familiarity with Ivery due to his past dealings with law enforcement. Officer Petric ran Ivery's name through dispatch, and it was discovered that Ivery's license was suspended. As a result, Officer Petric initiated a stop. Ivery, driving appellant's vehicle, pulled into the Mosley Select Suites, where appellant happened to be staying. Ivery pulled into an aisle of the parking lot, but not into a parking space. Soon after the stop, Officer Petric confirmed through dispatch that Ivery had a warrant out for his arrest. After Ivery was placed under arrest, the decision to impound the vehicle was made. Officer Shum arrived on scene and executed an inventory search of the automobile, finding a plastic bag containing jewelry. At some point, appellant, apparently recognizing his car in the front parking lot, exited the hotel from the lobby area and inquired into the stop and the status of his automobile. Officer Petric informed him that his car was being towed and the driver had been arrested.

Upon consideration, the trial court denied appellant's motions to suppress.

The matter proceeded to a jury trial. After four days of testimony, the jury found appellant guilty on all 14 counts and each respective specification. Appellant was sentenced to a total of 21 years in prison.

(Doc. 7, RX 33, at 2-5; State v. Perry, No. 2011-L-125, 2012 WL 5195814, at *1-*2 (Ohio Ct. App. Oct. 22, 2012).

A. Direct Appeal

Perry filed a timely appeal, and raised the following seven assignments of error:

1. Defendant-appellant was denied effective assistance of counsel by the trial court which inured to his prejudice at trial.

2. The trial court committed prejudicial error by denying Defendant-Appellant's Motion to Suppress regarding the search of the vehicle's truck [sic] on May 22, 2010.

3. The trial court committed prejudicial error by denying Defendant-Appellant's Motion to Suppress regarding the pre-textual tow and inventory of the vehicle stopped on July 20, 2010.

4. The trial court committed prejudicial error by denying Defendant-Appellant's Motion in Limine regarding the State's use of expert testimony regarding triangulation pinpointing with cell phone towers in contradiction of Ohio Criminal Rule 16(k), and by allowing such testimony at trial.

5. The evidence adduced at trial was insufficient to support a conviction of Defendant-Appellant.

6. The trial court committed prejudicial error by sentencing Defendant-Appellant without proper consideration of allied offenses of Engaging in a Pattern of Corrupt Activity, Burglary, Receiving Stolen Property, and Weapons under Disability.

7. The trial court committed prejudicial error by sentencing Defendant-Appellant without proper calculation of credit for time served.

(Doc. 7, RX 29.) The court of appeals affirmed the judgment of the trial court, on Oct. 22, 2012. (Doc. 7, RX 33; Perry, 2012 WL 5195814.)

On Feb. 1, 2013, Perry filed a motion for delayed appeal to the Supreme Court of Ohio. (Doc. 7, RX 36.) The state supreme court granted leave to appeal (doc. 7, RX 37), and Perry subsequently raised the following five propositions of law:

1. The Sixth Amendment to the United States Constitution guarantees a person charged to a criminal offense the inalienable right to counsel of choice and substitution of counsel and to pro se self-representation upon timely request to the court, and denial may result in structural error mandating automatic reversal of the conviction.

2. It is an Abuse of Discretion when the Fourteenth Amendment does not permit an illegal search and seizure of property contained in a truck [sic] of a vehicle and results without an arrest or custodial holding and any evidence seized is inadmissible.

3. It is an abuse of discretion and clearly established federal law governing illegal search and seizure and incorporated

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