Rarden v. Warden, Warren Corr. Inst.

• Decision Date: 17 December 2013
• Docket Number: Case No. 1:12-cv-660,Case No. 1:12-cv-756
• Parties: LONNIE RARDEN, Petitioner, v. WARDEN, Warren Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

LONNIE RARDEN, Petitioner, v. WARDEN, Warren Correctional Institution, Respondent.

Case No. 1:12-cv-660

Case No. 1:12-cv-756

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

December 17, 2013

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

Petitioner Lonnie Rarden brought this case pursuant to 28 U.S.C. § 2254 for habeas corpus relief from his March 2007, conviction in the Butler County Common Pleas Court and subsequent sentence to a term of imprisonment in Respondent's custody. Rarden pleads the following ground for relief in Case No. 1:12-cv-660:

Ground One: The trial court's sentence was void, therefore the trial court must conduct a complete de novo sentence hearing.

Supporting Facts: When the trial court sentenced me on March 21, 2007, the trial court failed to properly impose post release control. On March 26, 2010, I filed a pro se motion requesting that the trial court re-sentence me. On April 7, 2010, the trial court tried to simply fix the flawed portion of post release control instead of conducting a complete de novo re-sentencing hearing.

(Petition in 1:12-cv-660, Doc. No. 1, PageID 5.)

In Case No. 1:12-cv-756, Rarden pleads the following grounds for relief:

Ground One: Appellate counsel was ineffective when he told Petitioner that it [he] was responsible for filing a subsequent pro se appeal concerning fines and court cost imposed.

Supporting Facts: Petitioner was originally sentenced in the above captioned case on March 22, 2007. At that sentencing hearing, the trial court entered in its Judgment of Conviction Entry that Petitioner was to pay all court cost and fines imposed but, failed to state on the record at that sentencing hearing that Petitioner was ordered to pay fines and court cost. On March 26, 2010, Petitioner filed a pro se motion to have the trial court re-sentence him for failing to to [sic] notifing him of Post Release Control. On April 14, 2010, the trial court conducted a de novo sentencing hearing. At that sentencing hearing, the trial court AGAIN, failed to impose court cost or fines in the instant case but journalized that it did in fact notify Petitioner that he was ordered to pay court cost and fines in the instant case.

When Petitioner's Appellate Counsel contacted him in regards as to what issues that petitioner wanted him, (Mr. Modderman), to raise on Appeal. Petitioner wrote Mr. Modderman and advised him that he wanted him to raise as one of his issues the fact that the trial court stated in its journal entry, that it notified the petitioner that it was imposing fines and court cost but, on the record the trial court did not notify the petitioner that it was imposing any fines or court upon him. Mr. Modderman wrote petitioner back saying that this issue was a civil matter and if he wished to address this issue that he would have to hire another attorney or appeal it in pro se.

Ground Two: A trial court shall not participate in plea negotiations.

Supporting Facts: Appellate Counsel in the instant case failed to raise in his merit brief that on March 7, 2007, at a pre-trial hearing, that if there were to be any discussions about any plea agreement that they should be done on the record since Petitioner was proceeding in pro se. But on March 16, 2007 the trial court sent Defense Attorney David Brewer over to the Butler County Jail to see if Petitioner would accept a ten year prison sentence. The trial court also told Mr. Brewer to advise Petitioner, that if did not accept the ten year deal that the court would impose the maximum sentence upon him. Petitioner called the trial court judge out on this in his opening statements to the jury. The trial court or the prosecution did not object to this assertion.

Ground Three: A Defendant is entitled to have a trial court instruct a jury on lesser included offenses if he has proven to the court and jury that he is not guilty of the charges he is being tried on.

Supporting Facts: Petitioner's Appellate Counsel failed to raise in his merit brief that on February 16, 2007 , Petitioner filed a pro se motion requesting that the trial court instruct the jury on lesser included offense instructions if he was entitled to such instructions. The trial court deferred petitioner's request until the conclusion of the trial. At the conclusion of the trial on March 22, 2007, petitioner again requested that the trial court instruct the jury on lesser included offenses but, the trial court refused to instruct the jury, citing that petitioner waited too late to instruct the jury and he (the judge) was not going to re-type another set of jury instructions. The court did not give any other reasons as to why petitioner was not ent1tled.

Ground Four: Appellant/Petitioner was entitled to the effective assistance of counsel on FIRST direct appeal.

Supporting Facts: Petitioner was entitled to the effective assistance of appellate counsel on his first direct appeal (CA2007-03-0077). Petitioner's Appellate Counsel in the instant case was ineffective for failing to raise the fact that Petitioner was the one who discovered that the trial court fail to properly notify that petitioner of Post Release Control, and that it was the petitioner in pro se, made the trial court fix it by conducting a de novo sentencing hearing.

(Petition in 1:12-cv-756, Doc. No. 1, PageID 5-10.)

After this second Petition was filed, Magistrate Judge Bowman ordered the case consolidated and all future filings to be made under Case no. 1:12-cv-660 (Doc. No. 2). All further references herein will therefore be made to the docket entries and PageID numbers under that case heading. This case was transferred to Magistrate Judge Merz on December 11, 2013 (Doc. No. 14).

Procedural History

In August and September 2006, the Butler County Grand Jury indicted Rarden on one count of escape, one count of retaliation, two counts of complicity to perjury, one count ofcomplicity to tampering with evidence, one count of menacing by stalking, and seventeen counts of violating a protective order (Return of Writ, Doc. No. 7, Exhibits 1 & 2). On Rarden's request, he was permitted to proceed pro se with attorney David Brewer acting as stand-by counsel. The trial jury convicted Rarden on all counts and he was sentenced to the prison term he is now serving.¹

Represented by new counsel, Rarden appealed to the Twelfth District Court of Appeals which affirmed the conviction. State v. Rarden, Case No. CA2007-03-077 (Ohio App. 12^th Dist. Apr. 21, 2008)(unreported, copy at Return of Writ, Doc. No. 7, Exhibit 21, PageID 379-382). The Ohio Supreme Court declined jurisdiction over a subsequent appeal.

On May 6, 2009, Rarden filed a Petition for Writ of Habeas Corpus in this Court pleading seven grounds for relief as follows:

GROUND ONE: The trial court violated petitioner's constitutional right to counsel.

GROUND TWO: The trial court denied petitioner access to a law library to prepare for his trial, while being incarcerated.

GROUND THREE: The trial court denied petitioner due process rights to discovery.

GROUND FOUR: The trial court's sentence is contrary to law; it violates state and federal constitution as well as the Ohio Revised Code.

GROUND FIVE: A trial court shall not participate in a plea bargain.

GROUND SIX: Witness misconduct.

GROUND SEVEN: The trial court denied petitioner his right for the trial court to instruct jury to lesser included offenses.

(Petition in Case No. 1:09-cv-335; copy at Return of Writ, Doc. No. 7, Exhibit 52, PageID 524-550.) Magistrate Judge Wehrman recommended that the Petition be dismissed with prejudice. Rarden v. Warden, 2011 U.S. Dist. LEXIS 60599 (S.D. Ohio, Mar. 9, 2011). District Judge Beckwith adopted that recommendation over Rarden's objections. Rarden v. Warden, 2011 U.S. Dist. LEXIS 60597 (S.D. Ohio June 7, 2011). The United States Court of Appeals for the Sixth Circuit denied Rarden's request for a certificate of appealability. Rarden v. Sheets, Case No. 11-3693 (6^th Cir. Jan. 30, 2012)(unpublished; copy at Return of Writ, Doc. No. 7, Exhibit 56, PageID 597-600).

While his first habeas case was pending in this Court, Rarden filed a Delayed Application to Reopen his direct appeal, raising four claims of ineffective assistance of appellate counsel (Return of Writ, Doc. No. 7, Exhibit 57). The Twelfth District found Rarden had not shown good cause for the delay and the Supreme Court declined jurisdiction over an appeal. On April 22, 2010, Rarden filed a motion to resentence for failure of the trial court properly to impose post-release control. The trial court then imposed three year post-release control and Rarden appealed for failure to conduct a complete sentencing hearing. The Twelfth District affirmed and the Ohio Supreme Court again declined jurisdiction. On May 4, 2011, Rarden filed another Ohio App. R. 26(B) application to reopen the direct appeal on the resentencing. The Twelfth District denied the application both originally and on motion for reconsideration and the Ohio Supreme Court again declined jurisdiction December 21, 2011.

Analysis

Grounds Two and Three in Case No. 1:12-cv-756 Should Be Dismissed

As noted above, Rarden has previously filed a petition for writ of habeas corpus relating to this conviction which was dismissed on the merits and as to which a certificate of appealability was denied by the Sixth Circuit. In that prior Petition, he raised as Ground Five his claim that the trial court improperly engaged in plea negotiations and in Ground Seven his claim that the trial court improperly refused to instruct on lesser included offenses.

28 U.S.C. § 2244(b)(1) provides that "[a] claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed."

Rarden asserts that the instant petition is not "second or successive" because he is not challenging the judgment of conviction he challenged in the 2009 case, but...