Reid v. Warden
| Decision Date | 23 September 2013 |
| Docket Number | Case No. 3:12–cv–144. |
| Citation | 989 F.Supp.2d 672 |
| Parties | Timothy REID, Petitioner, v. WARDEN, CORRECTIONAL RECEPTION CENTER, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION TEXT STARTS HERE
Timothy Reid, Orient, OH, pro se.
M. Scott Criss, Columbus, OH, Mary Anne Reese, Attorney General of Ohio, Cincinnati, OH, for Respondent.
DECISION AND ENTRY ADOPTING UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DOC. # 11) IN ITS ENTIRETY; OVERRULING PETITIONER'S OBJECTIONS THERETO (DOC. # 14); DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (DOC. # 1) WITH PREJUDICE; DENYING CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS; JUDGMENT TO ENTER IN FAVOR OF RESPONDENT AND AGAINST PETITIONER; TERMINATION ENTRY
Petitioner was convicted of felony murder, felonious assault, and having a weapon while under a disability. On May 28, 2013, United States Magistrate Judge Michael J. Newman issued a Report and Recommendation (Doc. # 11), recommending that the Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254 (Doc. # 1) be dismissed with prejudice. Petitioner was granted an extension of time to file Objections, and did so in a timely manner.
Although the petition asserted five grounds for relief, Petitioner objects to the Magistrate Judge's recommended disposition only with respect to Grounds One and Two. In Ground One, Petitioner argues that the trial court committed plain error and violated his due process rights “by allowing the State to introduce and argue his prior conviction in Arizona for murder in the 1st degree.” In Ground Two, Petitionerargues that he was denied his right to effective assistance of counsel when his attorney failed “to offer to stipulate that Mr. Reid was a convicted felon for the crime of violence or to object to the introduction of the name and nature of the prior conviction of 1st degree murder.” Doc. # 1, PagelD 5–6.
Based on the reasoning and citations of authority set forth by United States Magistrate Judge Michael J. Newman, in his May 28, 2013, Report and Recommendation (Doc. # 11), as well as upon a thorough de novo review of this Court's file and the applicable law, this Court ADOPTS said judicial filing in its entirety, and OVERRULES Petitioner's objections thereto (Doc. # 14).
In so holding, the Court rejects Petitioner's contention that the state court never ruled on his motion in limine. In a conference, the state court specifically indicated, “[t]he Court is going to rule that the State can provide evidence of the prior murder conviction out of the State of Arizona in order to satisfy one of the essential elements of the having weapons under disability count.” Doc. # 7–37, PagelD# 546.
Although a stipulation as to the prior conviction may have been less prejudicial, the state court would not have been required to accept it even if offered. See State v. Smith, No. 18654, 2001 WL 896778, at **5–6 (Ohio Ct.App. Aug. 10, 2001) (). Under Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), the introduction of such evidence of a prior conviction, as a matter of state criminal procedure, does not violate a defendant's due process rights.
Moreover, because the prior conviction is a necessary element of the crime of having a weapon under a disability, and because the trial court is not obligated to accept a stipulation of a prior conviction, counsel's failure to stipulate does not amount to ineffective assistance of counsel. See Hilliard v. Hudson, 599 F.Supp.2d 921, 931 (N.D.Ohio 2009) ().
The Magistrate Judge correctly found that the state court's decision was not “contrary to,” and did not involve “an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). The Petition for a Writ of Habeas Corpus (Doc. # 1) is therefore DISMISSED WITH PREJUDICE.
Given that Petitioner has not made a substantial showing of the denial of a constitutional right and, further, that the Court's decision herein would not be debatable among reasonable jurists, and because any appeal from this Court's decision would be objectively frivolous, Petitioner is denied a certificate of appealability, and is denied leave to appeal in forma pauperis.
Judgment will be entered in favor of Respondent and against Petitioner.
The captioned case is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
This case is now before the Court upon Petitioner Timothy Reid's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (doc. 1); Respondent's Return of Writ (doc. 7); and Petitioner's Traverse (doc. 10).
The Montgomery County Ohio Court of Appeals summarized the facts underlying Petitioner's conviction as follows: 2
On April 10, 2008, Christopher Ousley was shot three times by two men outside Nathan's Superette carryout store on Delphis Avenue in Dayton. Reid and his cousin, Lonnie Scandrick, were subsequently arrested for the shooting. When interviewed by police[,] Reid admitted being present during the shooting, but claimed that the shots were fired by Scandrick and another man, Roderick Norvell.
State v. Reid, No. 23409, 2010 Ohio App. LEXIS 1415, at *1, 2010 WL 1511428, at *1 (Ohio Ct.App. Apr. 16, 2010) (brackets added) (doc. 7–10 at PageID 207–08).
Defendant was indicted on one count of felony murder; two counts of felonious assault; and one count of having a weapon while under a disability, with a firearm specification attached to each charge. Doc. 7–1. Additionally, a repeat violent offender specification was attached to the murder and felonious assault charges. Id. Petitioner pled not guilty to the charges, and the case proceeded to trial. Docs. 7–2, 7–36, 7–37, 7–38.
In February 2009, Petitioner's case was tried to a jury in the Montgomery County, Ohio Court of Common Pleas, and the jury convicted Petitioner on all counts in the indictment.3 Doc. 7–5. The trial court separately found Petitioner guilty of the three repeat violent offender specifications. Doc. 7–38 at PageID 1066–68.
On April 6, 2009, Petitioner was sentenced to a total of 29 years to life imprisonment: 15 years to life for murder; 8 years for each felonious assault count, to be served concurrently to each other and concurrently to the previous prison term; 5 years for having a weapon while under a disability, to be served consecutively to the 15–year prison term; 3 years for each of the firearm specifications, to be served concurrently to each other and consecutively to the previous prison term; and 6 years for each of the repeat violent offender specifications, to be served concurrently to each other and consecutively to the previous prison term. Doc. 7–6.
Petitioner timely filed a pro se Notice of Appeal. Doc. 7–7. The Montgomery County, Ohio Court of Appeals appointed appellate counsel, who filed an appellate brief on Petitioner's behalf, asserting five assignments of error:
1. The trial court erred and abused its discretion, violated the rules of evidence, denying Appellant a fair trial and due process of law, on the charges against him, including murder and felonious assault, by allowing the State to introduce and argue his prior conviction in Arizona for murder in the first degree, irreparably and unfairly prejudicing the jury against him, and far outweighing any probative value. ( Old Chief v. United States (1997), 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574,applied );
2. The failure of trial counsel to offer to stipulate that Mr. Reid was a convicted felon for a crime of violence or to object to the introduction of the name and nature of the prior conviction for murder in the first degree, denied him his constitutional right under the Sixth Amendment to effective assistance of counsel;
3. The trial court erred and abused its discretion in convicting and sentencing [Defendant] for allied crimes of similar import that should have been merged;
4. The trial court erred in submitting to the jury and sentencing for specifications on Count 6, felony-murder, and the underlying counts, 7 and 8, felonious assault, and the HWWD, Count 9, as duplicitous; and
5. The trial court erred in allowing the offense of complicity to enter the trial and instructing the jury since the offense was not charged in the indictment.
Doc. 7–8 at PageID 91–92 (brackets added; capitalization altered). On April 16, 2010, the Ohio Court of Appeals overruled Petitioner's first, second, fourth and fifth assignments of error. Doc. 7–10. However, the Court of Appeals sustained in part and overruled in part his third assignment of error. Id. at PageID 214–21. The court remanded the case to the trial court to merge the two felonious assault offenses, and to further merge the felony murder offense with the surviving felonious assault offense, and then to re-sentence Petitioner accordingly. Id. at PageID 223–24.
With the assistance of counsel, Petitioner appealed to the Supreme Court of Ohio, setting forth two propositions of law:
1. It is an abuse of discretion for a trial court to allow the use and admission of evidence of the name and nature of a prior conviction of the defendant, for an identical or substantially similar crime, because the danger of unfairly prejudicing the jury against the defendant resulting in propensity reasoning and finding...
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