Pettus v. Warden, Franklin Med. Ctr.

Decision Date02 August 2021
Docket Number1:20-cv-187
PartiesLASHAWN R. PETTUS, Petitioner, v. WARDEN, Franklin Medical Center, Respondent.
CourtU.S. District Court — Southern District of Ohio

Michael R. Barrett, District Judge

REPORT AND RECOMMENDATIONS

Michael R. Merz United States Magistrate Judge

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.

Litigation History

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:

1. Pettus' was denied his right to a preliminary hearing, in violation of his rights to equal protection under the federal and state constitutions.
2. Pettus' was denied his right to hire private counsel, in violation of his rights under the Sixth Amendment to the United States Constitution.

(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:

Ground One: Violation of Equal Protection Clause: Pettus was denied his right to a preliminary hearing prior to his indictment;
Supporting Facts: Petitioner was denied the right to a preliminary hearing by the State with its use a loophole in Ohio's Crim.R. 5(B), while other similarly situated defendants in Ohio were in fact permitted the right to have preliminary hearings.
Ground Two: Violation of Sixth Amendment: Pettus has the right to be represented by an otherwise qualified attorney whom that he, as a defendant, can afford to hire;
Supporting Facts: Petitioner was expressly told by the trial court judge, on the record, that the court would not let Pettus hire his private counsel of choice and that Pettus only had two options, take the court-appointed counsel or represent himself at trial.
Ground Three: Violation of Double Jeopardy Clause: Allied Offenses, R.C. 2941.25: Forgery and Theft offenses merge when the act of forgery provides the means for which the theft occurs;
Supporting Facts: Petitioner deposited his own personal checks, made out to himself, into his personal bank account; when the checks cleared and funds were made available, he made partial withdrawals; therefore, the alleged theft could not have occurred without the alleged uttering. The charges should have been merged for the purpose of sentencing and the alleged motivation was a single animus.
Ground Four: Violation of Due Process and Equal Protection Clauses: Pettus, represented by appointed counsel, is entitled to file, pro se, a brief as a supplement to the brief filed by counsel;
Supporting Facts: Petitioner was denied the procedural right to file a supplemental brief when his court-appointed appellate counsel willfully refused to argue meritorious errors in the appellant brief~ while the very appellate court permitted other appellants the right to file pro se supplemental briefs in similar situations.
Ground Five: Violation of Sixth Amendment: Ineffective Assistance of Appellate Counsel - Counsel was deficient for failing to raise issues that have a "reasonable probability'' to be successful;
Supporting Facts: Petitioner's court-appointed appellate counsel willfully refused to raise and present major arguments in the direct appeal, despite Pettus' expressly written request and supportive case law and evidence.
Ground Six: Violation of Due Process and Equal Protection Clauses: R.C. § 2913.61(C)(1) allows aggregation of theft offenses only when the victims are eldery [sic] or disabled or who are in the military or who are spouses of those in the military.
Supporting Facts: Petitioner's misdemeanor charges are aggregated to make felony charges despite the fact that none of the alleged victims are elderly, disabled, or in the military or who are spouses of those in the military; the state never attempted this improper aggregation with other similarly situated persons.

(Petition, ECF No. 1, PageID 6-7). Petitioner has voluntarily withdrawn Ground Six (ECF Nos. 32, 36).

Analysis
Ground One: Denial of Equal Protection by Denial of Preliminary Hearing

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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