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. 6), Petitioner's Reply (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 Fifth District Court of Appeals summarized the facts and procedural history of the case as follows:
Appellant is the former boyfriend of Ashley Orndorff, the granddaughter of Larry and Becky Orndorff. Appellant was aware the Orndorffs generously supported Ashley. They had cash on hand in their home which was available to Ashley anytime. Appellant knew where the Orndorffs kept their cash and knew the home was usually unlocked. He also knew the Orndorffs had many firearms in their home.
This case arose in the late-night hours of December 12, 2008 when intruders broke into the home of Larry and Becky Orndorff while the Orndorffs were sleeping and stole cash and property.
The intruders decided to return in the early morning hours of December 13, 2008, and this time awakened Larry Orndorff. Both Orndorffs were held at gunpoint and their home was ransacked; they were forced to turn over cash, firearms, medication, and other property. The Orndorffs believed there were two intruders in their home during the robbery, and Becky Orndorff heard one place a phone call instructing someone to come pick them up and to "pop the trunk ." Although most of the telephones in the house had been disabled, Becky Orndorff was able to call 911 at 1:59 a.m.
The Orndorffs did not get a good look at the intruders. Becky was aware that the one who led her to the garage at gunpoint had blue eyes and was taller than her husband, and of slender build, but he was wearing a ski mask or other type of head covering, black clothing, and gloves. Investigators were not able to find any useful fingerprints and did find marks in dust that confirmed the intruders wore gloves during the robbery.
The Muskingum County Sheriff's Office immediately focused on the phone call that had been placed during the robbery. They narrowed down the cell phone towers that picked up calls from the Orndorffs' residence. Next they narrowed down calls within twenty minutes of Becky Orndorff's 911 call, which were likely to be the intruders calling their getaway driver. Eventually this investigative work led to a list of six telephone numbers. Those telephone numbers led to interviews with several individuals including appellant, Ryan Barlow, and Jamie Hutton, among others. All denied their involvement in the home invasion.
The investigation yielded few leads until a woman named Keela Davis came forward in 2010 and told her mother that appellant, Ryan Barlow, and Jamie Hutton were the three who had perpetrated the Orndorff home invasion. A fourth individual, Brittany Funk, was the getaway driver. Law enforcement interviewed Barlow, Hutton, and Funk and developed additional leads to confirm their suspicion of appellant's involvement.
Appellant was initially charged as a juvenile and bound over to the Muskingum County Court of Common Pleas. After indictment and before the start of trial, the State dismissed two aggravated robbery charges and amended others with the result that appellant stood trial upon one count of aggravated burglary [R.C. 2911.11(A)(2)], theft of a firearm [R.C. 2913.02(A)(1)], theft in an amount greater than $1000 and less than $7500 [R.C. 2913.02(A)(1)], aggravated burglary [R.C. 2911.11(A)(2)] with a firearm specification [R.C. 2941.145], two counts of kidnapping [R.C. 2905.01(A)(2)] with a firearm specification [R.C. 2941.145], one count of theft of firearms [R.C. 2913.02(A)(1)], and one count of theft in an amount greater than $7500 and less than $150,000 [R.C. 2913.02(A)(1)].
The State's evidence at trial included the testimony of the Orndorffs and the investigators. Ryan Barlow and Jamie Hutton, appellant's accomplices, also testified, as did Brittany Funk. A former girlfriend of appellant's testified he admitted his involvement in the home invasion to her when she asked him about it, and said Jamie Hutton forced him into it.
Appellant presented a number of alibi witnesses who claimed the night of the robbery he was present at a performance by his sibling "Claudia" in Columbus, Ohio. The State presented some evidence to indicate this show was performed a different weekend than the one in question.
Appellant moved for judgment of acquittal pursuant to Crim.R. 29(A) at the close of appellee's evidence and at the close of all of the evidence; the motions were overruled. Appellant was found guilty as charged. The trial court determined that a number of the counts and firearm specifications merged, and sentenced appellant to an aggregate prison term of 23 years.
Appellant now appeals from the judgment entry of his conviction and sentence.
Appellant raises seven Assignments of Error:
"I. THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS INSTRUCTION TO THE JURY IN 1) FAILING TO GIVE THE JURY THE REQUIRED CAUTIONARY INSTRUCTION REGARDING THE TESTIMONY OF AN ALLEGED ACCOMPLICE UNDER R.C. 2923.03(D) AS TO THE TESTIMONY OF RYAN BARLOW AND JAMIE HUTTON; AND 2) FAILING TO IDENTIFY BRITTANY FUNK AS A THIRD POTENTIAL ACCOMPLICE IN A CAUTIONARY INSTRUCTION."
"II. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT SENTENCED APPELLANT TO CONSECUTIVE SENTENCES ON COUNTS 4, 5, AND 6 OF THE INDICTMENT IN VIOLATION OF R.C. 2941.25—ALLIED OFFENSES OF SIMILAR IMPORT—AND THE DOUBLE JEOPARDY CLAUSES OF THE OHIO AND UNITED STATES CONSTITUTIONS."
"III. THE TRIAL COURT ERRED AS A MATTER OF LAW, TO THE PREJUDICE OF APPELLANT, BY CONVICTING APPELLANT, BECAUSE THIS CONVICTION WAS BOTH
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION."
"IV. THE COURT OF COMMON PLEAS DID NOT HAVE SUBJECT MATTER JURISDICTION OVER THE CRIMINAL TRIAL BECAUSE BLAKE RILEY WAS UNDER EIGHTEEN YEARS OLD AT THE TIME OF THE ALLEGED OFFENSE AND WAS NOT PROPERLY BOUND OVER FROM THE JUVENILE COURT."
"V. DEFENDANT'S JUVENILE COURT BINDOVER TO ADULT COURT VIOLATED THE PRINCIPLES SET FORTH IN APPRENDI V. NEW JERSEY 530 U.S. 466 (2000), AND THUS VIOLATED HIS RIGHTS TO DUE PROCESS AND TO A JURY TRIAL."
"VI. THE COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT FAILED TO RECORD ALL THE PROCEEDINGS IN THIS CASE."
"VII. APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO NUMEROUS ERRORS AND OMISSIONS WHICH PREJUDICED APPELLANT'S TRIAL."
State v. Riley, No. CT2012-0022, 2013 WL 1343548, at *1-2 (Ohio App. 5th Dist. March 22, 2013). Petitioner's convictions were affirmed on direct appeal, id., and on September 4, 2013, the Ohio Supreme Court declined to accept jurisdiction of Petitioner's appeal from that decision. State v. Riley, 136 Ohio St.3d 1474 (Ohio 2013).
On December 3, 2014,1 Petitioner filed the Petition, alleging that the trial court improperly failed to issue accomplice jury instructions (claim one); that the trial court improperly imposed consecutive terms of incarceration on allied offenses of similar import and in violation of the Double Jeopardy Clause (claim two); that his convictions are against the manifest weight of the evidence and that the evidence is constitutionally insufficient to sustain his convictions (claim three); that the trial court lacked jurisdiction because he was under eighteen years of age at the time of the alleges offenses and he was not properly bound over from juvenile court (claim four); that his bind over to adult court violated Apprendi v. New Jersey, 530 U.S. 466 (2000), his right to due process and his right to a jury trial (claim five); that the mandatory transfer of juvenile offenders to adult court violates due process (claim six); that the mandatory transfer of juvenile offenders to adult court violates the Equal Protection Clause (claim seven); that the mandatory transfer of juvenile offenders to adult court violates the Eighth Amendment (claim eight); that the trial court improperly failed to record all of the proceedings (claim nine); that he was denied the effective assistance of counsel (claim ten); and that the trial court improperly failed to consider his youth as a factor in sentencing, and his sentence is unconstitutionally disproportionate to the offenses charged (claim eleven).
Respondent contends that Petitioner's claims are either procedurally defaulted or fail to provide a basis for federal habeas relief.
In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, 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 highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the petitioner fails to do so, but the state still provides a remedy to pursue, the petition is subject to dismissal for failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S. 722, 731 (1991); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of a procedural default, the petitioner can no longer present the relevant claims to a state court, the petitioner also waives the claims for purposes of federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 724; Murray v. Carrier, 477 U.S. 478, 485 (1986).
In the Sixth Circuit, a court must undertake a four-part analysis to determine whether...
