Render v. Warden, S. Ohio Corr. Fac.

• Decision Date: 22 August 2012
• Docket Number: No. 1:10–CV–629.,1:10–CV–629.
• Citation: 889 F.Supp.2d 1014
• Parties: David RENDER, Petitioner, v. WARDEN, SOUTHERN OHIO CORRECTIONAL FACILITY, Respondent.
• Court: U.S. District Court — Southern District of Ohio

889 F.Supp.2d 1014

David RENDER, Petitioner,

v.WARDEN, SOUTHERN OHIO CORRECTIONAL FACILITY,¹ Respondent.

No. 1:10–CV–629.

United States District Court,

S.D. Ohio,

Western Division.

Aug. 22, 2012.

David Render, Lucasville, OH, pro se.

Mary Anne Reese, Attorney General of Ohio, Cincinnati, OH, for Respondent.

OPINION AND ORDER

S. ARTHUR SPIEGEL, Senior District Judge.

This matter is before the Court on the Magistrate Judge's June 29, 2011 Report and Recommendation (doc. 25), Respondent's objections (doc. 32), and Petitioner's objections (doc. 33). Also before the Court are Petitioner's Motion to Stay Proceedings Pending Appeal (doc. 34), Petitioner's Notice of Correction (doc. 35), and Respondent's Objection to the Motion to Stay (doc. 36). Finally, the Court has also reviewed Petitioner's Motion to Amend/Correct his Petition (doc. 38), Respondent's Response in Opposition (doc. 39), and Petitioner's Reply (doc. 40). For the reasons indicated herein, the Court ADOPTS and AFFIRMS the Magistrate Judge's Report and Recommendation as to Grounds One to Three and Five to Seven, and thus DENIES Petitioner's Petition on such grounds WITH PREJUDICE (doc. 5). However, the Court DECLINES to certify to the Ohio Supreme Court the double jeopardy question presented in Ground Four. The Court further DENIES Petitioner's Motion to Stay (doc. 36), and his Motion to Amend/Correct (doc. 38).

I. BACKGROUND

On July 1, 2005, the Hamilton County, Ohio, Grand Jury returned a four-count indictment charging Petitioner with one count of resisting arrest in violation of Ohio Rev.Code § 2921.33(C)(2), two counts of having weapons while under disability in violation of Ohio Rev.Code § 2923.13(A), and one count of carrying a concealed weapon in violation of Ohio Rev.Code § 2923.12(A) (doc. 25).

The Magistrate Judge provided a thorough review of the facts and the procedural posture of this matter, which the Court incorporates by reference and will not reiterate here. Essentially, after being arrested and indicted, Petitioner entered a plea of no contest to all charges. Upon finding Petitioner had “made a knowing, intelligent and voluntary waiver” of his constitutional rights, the trial court accepted Petitioner's no-contest plea and found petitioner guilty as charged.

On April 27, 2006, the court sentenced Petitioner to an aggregate prison term of eight years. Specifically, Petitioner was sentenced to concurrent prison terms of eighteen (18) months for resisting arrest, five (5) years for each weapons-under-disability offense, and eighteen (18) months for carrying a concealed weapon; he also was sentenced to a three (3) year prison term on the firearm specification attached to the resisting-arrest count, which was to be served consecutively to the sentence imposed for the underlying offense.

Petitioner appealed his conviction to the First District Court of Appeals claiming the trial court erred to the prejudice of Defendant–Appellant by not granting his motions to suppress, by finding him guilty of resisting arrest, and by sentencing him on both “having weapons under disability” counts.

The Ohio Court of Appeals overruled Petitioner's assignments of error and affirmed the trial court's judgment. One judge dissented from the majority concerning petitioner's separate convictions on two counts of having weapons under disability.

Petitioner filed a pro se notice of appeal to the Ohio Supreme Court asserting the same claims of error that had been presented to the Ohio Court of Appeals. The Ohio Supreme Court denied petitioner leave to appeal. Petitioner's subsequent attempts to challenge his sentence also eventually all failed.

Petitioner next filed the instant Petition, in September 2010, alleging seven grounds for relief (doc. 1). On June 28, 2011, the Magistrate Judge issued her Report and Recommendation, concluding the Court should certify the question presented in Ground Four to the Ohio Supreme Court, but should deny the Petition on all of the other asserted grounds (doc. 25). Petitioner filed objections to the R & R concerning Grounds One through Three and Five through Seven (doc. 33). Respondent filed objections, and argues that the double jeopardy claim in Ground Four should not be stayed pending certification of a question to the Ohio Supreme Court (doc. 32). Instead, Respondent requests the petition as to such ground be granted and that the Court order Petitioner returned to the State Court so that the two weapon-under-disability convictions can be merged ( Id.).

On September 1, 2011, Petitioner moved to stay proceedings pending appeal, claiming he has appealable issues yet to be resolved at the state level (doc. 34). Respondent opposes this motion, explaining that Petitioner does not, however, meet the legal requirements for a stay as his grounds for relief have all been exhausted (doc. 36).

On April 3, 2012, Petitioner moved to amend his habeas petition in order “to conform to the procedural requirements mentioned in the Writ of habeas corpus and add [an evidentiary claim based on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ]” to his petition (doc. 38). Respondent opposes this motion, explaining that not only has Petitioner not shown good cause for this proposed amendment, but that the claim Petitioner seeks to add is procedurally defaulted (doc. 39).

This case is now ripe for decision.

II. LEGAL STANDARD

Any dispositive report and recommendation by a magistrate judge is subject to de novo review “of those portions of the report or specified proposed findings or recommendations to which objection is made.” Tuggle v. Seabold, 806 F.2d 87, 92 (6th Cir.1986); 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254, the district court shall not grant a petition for a writ of habeas corpus on any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: (1) Resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) Resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).

Ordinarily, a state prisoner must first exhaust their available state court remedies before seeking habeas relief by fairly presenting all their claims to the state courts. 28 U.S.C. § 2254(b), (c); Rhines v. Weber, 544 U.S. 269, 274, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005); Wilson v. Mitchell, 498 F.3d 491, 498 (6th Cir.2007). Normally, the exhaustion requirement is satisfied after the petitioner fairly presents all his claims to the highest court in the state in which the petitioner fairly presents all his claims to the highest court in the state in which the petitioner was convicted, thus giving the state a full and fair opportunity to rule on the petitioner's claims before he seeks relief in federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Wilson, 498 F.3d at 498–499;Deitz v. Money, 391 F.3d 804, 808 (6th Cir.2004).

Both the factual and legal basis for the claim must have been presented to the state courts in order to be considered “fairly presented.” Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir.2006). The Sixth Circuit has identified four actions that a petitioner can take which are significant to the determination of whether he has properly asserted both the factual and legal basis for his claim: “(1) reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the mainstream of constitutional law.” Whiting v. Burt, 395 F.3d 602, 613 (6th Cir.2005) (quoting McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.2000)).

III. ANALYSISA. The Fourth Amendment Claim in Ground One is Barred From Federal Habeas Review.

In Ground One of the petition, Petitioner alleges that he is entitled to habeas relief because the trial court erred in refusing to suppress evidence that was seized when he was stopped by the police without “reasonable suspicion or probable cause,” in violation of his Fourth Amendment right to be free from unreasonable searches and seizures. In the return of writ filed in response to the petition, Respondent contends that the Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precludes federal habeas review of petitioner's claim stemming from the denial of his suppression motion and the state court's adjudication of the Fourth Amendment issues raised in that motion (doc. 14).

In her Report and Recommendation, the Magistrate Judge rejects Petitioner's claim as to Ground One, concluding it is barred from review under the Supreme Court's Stone decision. The Magistrate Judge found that federal habeas review of Ground One is prohibited because Petitioner was provided a full and fair opportunity in the state courts to litigate the claim, and the presentation of the claim was not thwarted by any failure of the State's corrective process (doc. 25).

Having reviewed this claim de novo this Court agrees with the Magistrate Judge's assessment that Petitioner was provided a full and fair opportunity in the state courts to litigate his Fourth Amendment claim and the presentation of the claim was not thwarted by any failure of the State's corrective process.

B. The Claim in Ground Two, Alleging that Petitioner's Statements To The Police Were Obtained in Violation of Petitioner's Fifth Amendment Rights Lacks Merit.

In Ground Two of the petition, Petitioner alleges that he is entitled to habeas relief because the trial court should have...