Pettus v. Warden, Franklin Med. Ctr.
Decision Date | 02 August 2021 |
Docket Number | 1:20-cv-187 |
Parties | LASHAWN R. PETTUS, Petitioner, v. WARDEN, Franklin Medical Center, Respondent. |
Court | U.S. District Court — Southern District of Ohio |
REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court for decision on the merits on the Petition (ECF No. 1), the State Court Record (ECF Nos. 23 & 46), the Amended Return of Writ (ECF No 47), and Petitioner's Reply (ECF No. 51). Judge Barrett's recent decision declining to allow an evidentiary hearing concludes “The Magistrate Judge may proceed to consider the merits of Petitioner's petition in due course as his caseload allows.” (ECF No. 58). The case is thus ripe for decision.
On October 21, 2016, the Hamilton County grand jury indicted Pettus for twelve counts of forgery in violation of Ohio Rev Code § 2913.31(A)(3) (counts 1-4, 7, 9-13, and 15), and four counts of theft in violation of Ohio Rev. Code § 2913.02(A)(3) (counts 6, 8, 14, and 16). All individual counts of theft that had been committed against each bank were aggregated and charged as a single offense pursuant to Ohio Rev. Code § 2913.61(C)(1). (Indictment, State Court Record, ECF No. 23, Ex. 1). Pettus waived his right to trial by jury and was convicted after a bench trial of all counts except Count 11. The trial court sentenced Pettus to sixty months imprisonment plus six months consecutive because the offenses were committed while Pettus was on transitional control at Talbert House for a prior conviction.
Represented by new counsel, Pettus appealed to the Ohio First District Court of Appeals. Part way through the appellate process, Pettus's first appellate counsel withdrew and was replaced by Attorney Anzelmo who continues to represent him in these habeas corpus proceedings. The First District remanded for required findings to support imposing consecutive sentences, but otherwise affirmed. State v. Pettus, 2019-Ohio-2023 (1st Dist. May 24, 2019)(copy at ECF No. 23, Ex. 41).
On appeal, the Supreme Court of Ohio accepted for review an issue certified by the First District, to wit:
When a defendant is convicted of multiple theft offenses committed in the offender's same employment, capacity, or relationship to another, does R.C. 2913.61(C) permit the offenses to be aggregated where the victim of the offense is not an elderly person, a disabled adult, or an active duty service member or spouse of an active duty service member?
The Supreme Court decided that Ohio Revised Code § 2913.61(C) does allow for the disputed aggregation and affirmed the conviction. State v. Pettus, 163 Ohio St.3d 55 (2020).
On August 20, 2019, Pettus moved to reopen his direct appeal under Ohio R. App. P. 26(B), asserting ineffective assistance of appellate counsel in his counsel's failure to include the following assignments of error:
(26(B) Application, State Court Record, ECF No. 23-1, Ex. 57). The First District denied the Application. (Entry, State Court Record, ECF No. 46, Ex. 80) and the Supreme Court of Ohio declined review. Id. at Ex. 83.
In his Amended Petition, Pettus pleads the following grounds for relief:
(Petition, ECF No. 1, PageID 6-7). Petitioner has voluntarily withdrawn Ground Six (ECF Nos. 32, 36).
In his First Ground for Relief, Petitioner asserts he was denied equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution when he was denied a preliminary hearing before being indicted.
Respondent asserts this Ground for Relief is procedurally defaulted because it was not included in the initial brief on direct appeal (Amended Return, ECF No. 47, PageID 2443, et seq.). Alternatively, Respondent defends on the merits. Id. at PageID 2446, et seq.
Pettus replies that any procedural default in presenting this claim to the First District Court of Appeals is excused because it was ineffective assistance of appellate counsel to fail to present it. (Traverse/Reply, ECF No. 51, PageID 2471, et seq.) Pettus asserts the ineffective assistance of appellate counsel claim is preserved because it was presented to the First District in the 26(B) Application and is brought forward to this Court in Ground Five. Id.
Ineffective assistance of counsel can serve as excusing cause for a procedural default. Murray v. Carrier, 477 U.S. 478 488 (1985). However the ineffective assistance claim itself must be properly presented to the state courts in the first instance and not be itself procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446 (2000).
The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review.'” Boyle v. Million, 201 F.3d 711 716 (6th Cir. 2000), quoting Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were procedurally defaulted in state court-that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is an important “corollary” to the exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an...
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