Piesciuk v. Kelly, Case No. 1:14-cv-185

• Decision Date: 13 April 2015
• Docket Number: Case No. 1:14-cv-185
• Parties: JOSEPH PIESCIUK, Petitioner, v. BENNIE KELLY, Warden, Grafton Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JOSEPH PIESCIUK, Petitioner, v. BENNIE KELLY, Warden, Grafton Correctional Institution, Respondent.

Case No. 1:14-cv-185

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

April 13, 2015

District Judge Timothy S. Black

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

Petitioner Joseph Piesciuk brought this habeas corpus action pro se pursuant to 28 U.S.C. § 2254 to obtain relief from his convictions in the Butler County Common Pleas Court and sentence of twenty-one years imprisonment which he is serving in Respondent's custody. Piesciuk pleads the following grounds for relief:

Ground One: Petitioner's convictions for theft by deception [Ohio Revised Code] § 2913.02(a) (3), money laundering [Ohio Revised Code] §1315.55(a) (1), engaging in a pattern of corrupt activity [Ohio Revised Code] §2923.32(a) (1) violated his right to due process of law in violation of the Fourteenth Amendment to the United States Constitution and were not supported by sufficient evidence to enable a rational trier of fact to find guilty [sic]beyond a reasonable doubt.

Ground Two: Erroneous jury instructions required reversal of the theft by deception, money laundering and engaging in a pattern of corrupt activity [convictions].

Ground Three: The trial court erred when it sentenced appellant to a prison sentence, a non-minimum prison sentence, and consecutive sentences based on facts not found by a jury. Petitioner's constitutional rights were violated under the due process clause and under prohibitions against cruel and unusual punishment when the trial court failed to impose minimum, concurrent sentences for offenses committed in the years 2000 & 2001. The trial court erred in failing to impose minimum, concurrent sentences for offenses committed prior to the Ohio Supreme Court's decision in State v. Foster.

Ground Four: The court committed prejudicial and plain error by not dismissing the charges at the resentencing hearing on March 13, 2007, related to Counts 23 and 24.

Ground Five: The court committed prejudicial and plain error by not ruling on all motions relative to sentencing and restitution of Petitioner prior to or during sentencing on March 13, 2007.

Ground Six: The court committed prejudicial and plain error when it ordered restitution to the Miller's in the amount of $59, 582.93 and to the Bierly's in the amount of $24,037, at the March 13, 2007, sentencing.

Ground Seven: Petitioner was denied due process of law when he was not given an opportunity to review, rebut, and explain the entire body of information contained in the victim impact statements.

Ground Eight: The Defendant/Appellant (Petitioner) was prejudiced and denied effective assistance of counsel when counsel failed to convey a plea offer from the State to the Petitioner.

Ground Nine: The Petitioner was denied effective assistance of counsel and due process of law in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 16 of the Ohio Constitution, by the State's suppression and/or alteration of exculpatory evidence.

Ground Ten: The Petitioner was denied effective assistance of counsel and due process of law in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 16 of the Ohio Constitution, by the State's suppression and/or alteration of exculpatory evidence.

Ground Eleven: The Petitioner was denied effective assistance of counsel and due process of law in violation of the Sixth Amendment of the United States Constitution by trial counsel's failure to obtain "OHIC's" records from the Middletown Police Department that had been stolen in a break-in that occurred on September 5, 2000.

Ground Twelve: The Petitioner was denied effective assistance of counsel and due process of law in violation of the Sixth Amendment of the United States Constitution by trial counsel's failure to obtain "OHIC's" records from the law firm of Pratt, Singer & Thomas.

Ground Thirteen: The Petitioner was denied effective assistance of counsel and due process of law in violation of the Sixth Amendment of the United States Constitution by trial counsel's failure to investigate and/or call witnesses' [sic] to the stand that had exculpatory evidence.

Ground Fourteen: The Petitioner was denied effective assistance of counsel and due process of law in violation of the Sixth Amendment of the United States Constitution by trial counsel's failure to investigate and/or interview state and defense witnesses in order to adequately prepare a defense and prepare for trial.

Ground Fifteen: The Petitioner was denied effective assistance of counsel and due process of law in violation of the Sixth Amendment to the United States Constitution by trial counsel's failure to investigate and/or interview state and defense witnesses in order to adequately prepare a defense and prepare for trial.

(Petition, Doc. No. 1, PageID¹ 9-43Procedural History

Petitioner was indicted by the Butler County Grand Jury in 2003 on twenty-three counts of theft by deception in violation of Ohio Revised Code § 2913.02(A)(3), ten counts of money laundering in violation of Ohio Revised Code § 1315.55(A)(1), and one count of engaging in a pattern of corrupt activity in violation of Ohio Revised Code § 2923.32(A)(1). On December 22, 2003, he was convicted by a jury on thirteen counts of theft by deception, eight counts of money laundering, and the corrupt activity count. The court imposed the twenty-one year sentence on February 9, 2004.

Piesciuk timely appealed to the Butler County Court of Appeals which affirmed on October 31, 2005. State v. Piesciuk, 2005-Ohio-5767, 2005 Ohio App. LEXIS 5187 (12^th Dist. Oct. 31, 2005). Piesciuk appealed to the Ohio Supreme Court which accepted jurisdiction on his Proposition of Law No. 4 and then consolidated the appeal with a certified conflict case which Piesciuk had sought. The net result was that the Ohio Supreme Court reversed on Proposition of Law No. 4 and remanded for resentencing consistent with State v. Foster, 109 Ohio St. 3d 1 (2006).

On January 30, 2006, the Butler County Court of Appeals denied Piesciuk's application to reopen his appeal on claims of ineffective assistance of appellate counsel. Previously, on March 14, 2005, Piesciuk had filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 which the trial court denied summarily on April 1, 2005. An appeal was denied as untimely.

Piesciuk was re-sentenced on March 13, 2007, to twenty-one years imprisonment and ordered to pay revised amounts of restitution. He appealed and the Twelfth District concludedall his claims that preceded the re-sentencing were barred by res judicata. The Ohio Supreme Court declined jurisdiction. In the meantime, Piesciuk on January 30, 2008, filed another petition for post-conviction relief which the trial court summarily denied September 9, 2009. The Twelfth District affirmed on grounds the petition was untimely. The Ohio Supreme Court declined jurisdiction over an appeal. On a July 25, 2011, petition, the Twelfth District eventually ordered the Butler County Common Pleas Court to file findings of fact and conclusions of law on Piesciuk's first post-conviction petition. That court complied on January 7, 2013. Piesciuk appealed, but the Twelfth District overruled all his assignments of error. The Ohio Supreme Court declined jurisdiction over a subsequent appeal.

During the pendency of his state court actions, Piesciuk filed in this Court for habeas corpus relief in Case No. 1:07-cv-637. On the undersigned's recommendation and without objection by Piesciuk, that case was dismissed without prejudice August 22, 2012.

Analysis

Piesciuk's current Petition is timely filed because the AEDPA statute of limitations was tolled as long as Piesciuk's first post-conviction proceeding was pending, that is, until December 24, 2013. 28 U.S.C. § 2244(d)(2). The Petition here was filed February 27, 2014. The Warden concedes it is timely (Return of Writ, Doc. No. 8, PageID 145-48).

Although this is Petitioner's second in time Petition, it is not second or successive within the meaning of 28 U.S.C. § 2244(b) because the prior Petition was dismissed without prejudice. Petitions filed after prior dismissals for lack of exhaustion do not constitute "second or successive" petitions within the meaning of the AEDPA. Slack v. McDaniel, 529 U.S. 473 (2000), Stewart v. Martinez-Villareal, 523 U.S. 637 (1998); Carlson v. Pitcher, 137 F.3d 416, 418-20 (6^th Cir. 1998); McWilliams v. Colorado, 121 F.3d 573, 575 (10^th Cir. 1997); In re Gasery, 116 F.3d 1051, 1052 (5^th Cir. 1997)(per curiam).

Respondent asserts that many of Piesciuk's Grounds for Relief are barred in whole or in part by his procedural defaults in presenting them to the state courts. 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 (6^th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right 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 (6^th Cir. 2000)(citation omitted); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, ...