Rhodes v. Warden, Case No. 2:16-cv-0074

• Decision Date: 07 April 2017
• Docket Number: Case No. 2:16-cv-0074
• Parties: RUBEN RHODES, Petitioner, v. WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

RUBEN RHODES, Petitioner, v. WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

Case No. 2:16-cv-0074

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

April 7, 2017

JUDGE MICHAEL H. WATSON

Magistrate Judge King

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (ECF No. 1), Respondent's Return of Writ (ECF No. 9), Petitioner's Traverse (ECF No. 12), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Facts and Procedural History

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of the case as follows:

Rhodes was accused of making several trips to Florida to acquire controlled substances to be sold in central Ohio. This led to two separate indictments. The first indictment was issued on August 9, 2012 and included one count of engaging in a pattern of corrupt activity, five counts of aggravated trafficking in drugs as a felony of the second degree, two counts of aggravated trafficking in drugs as a felony of the fourth degree, and three counts of aggravated possession of drugs as felonies of the fifth degree.

On July 19, 2013, Rhodes was indicted a second time. This time he was charged with six counts of aggravated funding of drug trafficking as felonies of the first degree. He also was charged with another count of aggravated trafficking in drugs as a felony of the second degree.

The two indictments were tried in a single trial. The jury returned verdicts of guilty as to all counts.

***

State v. Rhodes, No. 13AP-821, 13AP-845, 2014 WL 2465312, at *1 (Ohio App. 10^th Dist. May 29, 2014). The trial court sentenced Petitioner on all counts, for a total aggregate sentence of 37 years' imprisonment. Judgment Entry (ECF No. 9-1, PageID# 84). Petitioner filed a timely appeal, presenting the following claims:

I. THE TRIAL COURT ERRED WHEN IT ALLOWED THE TESTIMONY OF AN EXPERT WITNESS WHO WAS NOT PREVIOUSLY DISCLOSED TO DEFENDANT'S COUNSEL.

II. APPLICANT WAS PREJUDICED BY INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

III. THE TRIAL COURT ERRONEOUSLY APPLIED THE DOCTRINE OF MERGER IN THE SENTENCE OF APPELLANT.

Id. On May 29, 2014, the state court of appeals overruled the first and second assignments of error, and overruled in part and sustained in part the third assignment of error:

[The trial court's sentencing on all charges for which the jury returned guilty verdicts] does not constitute strict compliance with R.C. 2941.25, since the statute bars a conviction on certain charges and does not mandate concurrent sentences.

The State of Ohio has acknowledged that the trial court erred by sentencing Rhodes on two of the possession charges at the same time it sentenced him on related trafficking charges involving the same controlled substances. This mistake by the trial court necessitates a new sentencing proceeding.

Id. The appellate court therefore remanded the case to the trial court for a new sentencing hearing. Id. Petitioner did not file a timely appeal to the Ohio Supreme Court from that decisionbut, on December 17, 2014, Petitioner filed a motion for delayed appeal to the Ohio Supreme Court. (ECF No. 9-1, PageID# 179). On January 28, 2015, the Ohio Supreme Court denied that motion. State v. Rhodes, 141 Ohio St.3d 1453 (2015).

Meanwhile, the trial court held a re-sentencing hearing pursuant to the order of remand from the Ohio Court of Appeals. On December 4, 2014, the trial court filed a resentencing entry which re-imposed a total aggregate term of 37 years' incarceration. Resentencing Entry (ECF No. 9-1, PageID# 193-97). The entry recognized that Counts 83 and 84 merged with Counts 85 and 86, but nevertheless appeared to impose separate sentences for each of those four counts; that entry also credited Petitioner with 549 days of jail time. Id. (PageID# 195-96). On December 23, 2014, Petitioner filed a pro se appeal from that entry. Notice of Appeal (ECF No. 9-1, PageID# 208).¹ On December 9, 2014, the trial court filed a corrected resentencing entry, which again recognized that Counts 83 and 84 merged with counts 85 and 86 and which deleted the separate sentences imposed in connection with Counts 83 and 84; that entry continued to credit Petitioner with 549 days of jail time. Corrected Resentencing Entry (ECF No. 9-1, PageID# 200-01). On December 23, 2014, the trial court filed a corrected/amended resentencing entry that maintained the deletion of sentences in connection with Counts 83 and 84, but which credited Petitioner with only 349 days of jail time. Corrected/Amended Resentencing Entry (ECF No. 9-1, PageID# 205-06). On June 2, 2015, Petitioner, acting through counsel, sought and was granted leave to voluntarily dismiss the appeal. Motion to Dismiss Appeal (ECF No. 9-1, PageID# 209-11); Journal Entry of Dismissal (ECF No. 9-1, PageID# 212).²

Petitioner filed this action on January 26, 2016, alleging that the trial court improperly permitted the State to call one Robert Amiet as an expert witness without providing the expert's report to the defense or allowing defense counsel to question the expert (claim one); that he was denied the effective assistance of trial counsel due to his attorney's failure to move for a judgment of acquittal after the jury's verdict, failure to request a continuance after the State announced its intent to call Amiet as an expert witness (claim two); that his convictions constitute allied offenses of similar import that should have been merged at sentencing (claim three); and that he was denied a fair trial based on cumulative error (claim four).³ Respondent contends that Petitioner's claims are procedurally defaulted or without merit.

Procedural Default

State prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, however, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims to the state courts, then his petition is subject to dismissal for failure to exhaust state court remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103 (1982) (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has failed to exhaust his claims but would find thoseclaims barred if later presented to the state courts, "there is a procedural default for purposes of federal habeas. . . ." Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).

The term "procedural default" has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. This "requires the petitioner to present 'the same claim under the same theory' to the state courts before raising it on federal habeas review." Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One aspect of this "fair presentment" requirement is that the habeas petitioner must present his federal claims to the state courts in a way that gives the state courts a fair opportunity to rule on the asserted federal law claims. If the federal claims are not presented to the state courts in the manner required by state law and, as a consequence, the state courts do not decide the merits of those claims, neither may a federal court do so. Such claims are "procedurally defaulted." Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim has been procedurally defaulted by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). "First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Id. Second, the court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Courthas determined that a state procedural rule was not complied with, and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This "cause and prejudice" analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).

Turning to the fourth part of the Maupin analysis, in order to establish cause, a petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Constitutionally ineffective counsel may constitute cause sufficient to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute such cause, however, an ineffective assistance of counsel claim generally must "'be presented to the state courts as an independent claim before it may be used to...