DARRELL A. CLAY, UNITED STATES MAGISTRATE JUDGE
On
October 31, 2019, Petitioner Phillip Singfield, a prisoner in
state custody, filed a Petition through counsel seeking a
writ of habeas corpus under 28 U.S.C. § 2254. (ECF #1).
On November 1, 2019, pursuant to Local Civil Rule 72.2, this
matter was referred to a Magistrate Judge for preparation of
a Report and Recommendation. (Non-document entry of Nov. 1
2019). Respondent Richard A. Bowen, Jr., in his official
capacity as warden of the Ohio State Penitentiary
(hereinafter “the State”), filed a Return of Writ
(ECF #4) on December 29, 2019; Mr. Singfield filed a Traverse
on February 11, 2020 (ECF #7). On May 25, 2021, pursuant to
General Order 2021-06, this case was reassigned to me
(Non-document entry of May 25, 2021). The District Court has
jurisdiction over the Petition under § 2254(a).
For the
reasons discussed below, I recommend the Petition be
DISMISSED as untimely and defaulted. In the
alternative, I recommend the Petition be
DENIED on its merits. I further recommend
the District Court DENY Mr. Singfield a
certificate of appealability (COA).
For
purposes of habeas corpus review of state court decisions, a
state court's findings of fact are presumed correct and
can be contravened only if the habeas petitioner shows, by
clear and convincing evidence, that the state court's
factual findings are erroneous. 28 U.S.C. §
2254(e)(1);Moore v. Mitchell, 708 F.3d 760, 775 (6th
Cir. 2013); Mitzel v. Tate, 267 F.3d 524, 530 (6th
Cir. 2001). This presumption of correctness applies to
factual findings made by a state court of appeals based on
the state trial court record. Mitzel, 267 F.3d at
530.
The
Ninth District Court of Appeals summarized the case as
follows:
At approximately 1:30 a.m. on July 26, 2008, Staci Smith and
her cousin, Natea Proctor, drove to a bar on Newton Street.
[At trial,] Smith testified that she and Proctor arrived at
the parking lot of a bar on Newton Street at approximately
1:00 a.m. and remained in the vehicle to eat the food that
they had just purchased. She further testified that at about
1:30 a.m. a man approached the passenger's side of the
vehicle and asked for a light. According to Smith, she exited
the driver's seat, walked around the vehicle, and offered
the man a light. The man produced a firearm and demanded
Smith's and Proctor's purses, threatening to shoot
them if they failed to comply. Once the man left, Smith and
Proctor were able to go into the bar and call the police.
Smith described the gun that was used to threaten her in
great detail. According to Smith, the parking lot was well
lit on one side, but more dimly lit where she had parked the
vehicle. Smith described her assailant at being around
5'8” or 5'9”, black, and overweight with
“fat roll[s] in his head.” Smith also indicated
that her assailant had a raspy voice.
Smith testified that weeks after the foregoing incident she
saw her assailant on two separate occasions. First, Smith saw
her assailant while riding the bus. Smith recognized him by
sight and by sound because she heard him speak to a nearby
bus passenger in his raspy voice. Smith testified that she
immediately became “nervous, shaking, [and]
sweating” when she saw the man. Smith reported the
sighting to the police after she exited the bus. Second
Smith saw her assailant walking down a street near her house.
Smith testified that the man greeted her when he walked by
such that she heard his raspy voice again. Thereafter, Smith
followed the man while calling the police on her cell phone.
Police arrested the man, later identified as Singfield,
shortly thereafter.
Proctor also testified that she and Smith were eating food in
a parked vehicle sometime after 1:00 a.m. when a man
approached the passenger's side of the vehicle and asked
for a light. According to Proctor, she exited the vehicle to
give the man a light and he pointed a gun at her. Proctor
testified that Smith had exited the driver's side of the
vehicle and was in the process of walking around to the
passenger's side when the man pointed his gun. The man
then demanded their purses, took the purses, and left.
Proctor testified that she was in a state of shock during the
incident and was focused on her assailant's gun.
According to Proctor, she did not think that the parking lot
had any lighting. Proctor reported to police that she
believed her assailant was black and heavy set. Proctor
testified that Smith called her and told her to look outside
on the day that Smith saw their assailant walking down the
street. Proctor stated that when she saw the man, “I
just had this feeling. * * * I just started sweating and I
watched him, and I seen him when he walked past * * * and I
was, like, oh, my God, that's him.”
Detective James Phister testified that he interviewed Smith
and Proctor shortly after they were attacked on July 26,
2008. Detective Phister testified that Smith described her
assailant as being a black male, 27 to 33 years of age,
5'8” to 5'9” tall, and 250 to 275 pounds
with a very raspy voice. He specified that Smith said that
the suspect “was so fat that he actually had rolls in
his head.” As to Proctor, Detective Phister testified
that her description of the suspect was “very
close” to Smith's description. Specifically,
Proctor described the suspect as being a black male, 27 to 33
years of age, 5'7” to 5'9” tall, and 200
to 235 pounds with a raspy voice. Detective Phister testified
that Singfield was “slightly taller” than Smith
and Proctor described, but otherwise matched their
description.
State v. Singfield, No. 24576, 2009 WL 3757405 at
*1, *4-5 (Ohio Ct. App. Nov. 10, 2009) (“Singfield
II”), appeal not allowed, 922 N.E.2d 971
(Ohio 2010).
On
October 3, 2008, a grand jury indicted Mr. Singfield on the
following charges:
(1) two counts of aggravated robbery, in violation of Ohio
Rev. Code § 2911.01(A)(1), both with firearm
specifications, in violation of Ohio Rev. Code §
2941.145;
(2) two counts of robbery, in violation of Ohio Rev. Code.
§§ 2911.01(A)(1), (2), both with firearm
specifications;
(3) having a weapon while under disability, in violation of
Ohio Rev. Code §§ 2923.13(A)(2), (3);
(4) theft, in violation of Ohio Rev. Code §§
2913.02(A)(1), (4); and
(5) petty theft, in violation of Ohio Rev. Code §§
2913.02(A)(1), (4).
(ECF #4-1 at PageID 101-04).
The
matter proceeded to trial, and on December 15, 2008, the jury
found Mr. Singfield guilty on all counts and the related
specifications. (Id. at PageID 106). On December 16,
2008, the trial court orally sentenced Mr. Singfield,
including a prison term for each specification, for a total
sentence of fourteen years. (Id. at PageID 108). The
court merged Counts 3 (robbery), 4 (robbery), 6 (theft), and
7 (petty theft), imposed four years each on Counts 1 and 2
(both, aggravated robbery) with mandatory sentences of three
years for each firearm specification served consecutively to
each other and to the sentences imposed on Counts 1 and 2,
and one year on Count 5 (having a weapon under disability) to
be served concurrently to the sentences imposed on Counts 1
and 2, for an aggregate sentence of fourteen years.
(Id.).
Before
the sentence was journalized, Mr. Singfield filed a motion to
modify his sentence, arguing that his firearms specifications
were allied offenses for which the trial court should not
have imposed separate sentences-essentially, arguing that
firearm specifications should be served concurrently to each
other. (Id. at PageID 111-14). On December 19, 2008,
the trial court held a full resentencing hearing, and, on
December 29, 2008, issued a decision imposing five years
imprisonment each on Counts 1 and 2, merged the firearm
specifications for a single consecutive three-year term, and
imposed a consecutive one-year term for the weapons under
disability charge for an aggregate fourteen-year sentence.
(Id. at PageID 115-16). Finding the counts merged
for sentencing, the court again declined to sentence on
Counts 3, 4, 6 and 7, with their related firearm
specifications. (Id.).
A.
Direct Appeal: Singfield I
On
January 14, 2009, Mr. Singfield, through counsel, filed a
timely notice of appeal to the Ohio Ninth District Court of
Appeals. (Id. at PageID 117). His merits brief
raised three assignments of error:
1. Appellant Singfield's indictment was defective under
the Ohio Constitution, Article I, Section 10 as the state
failed to include a mental culpability element for aggravated
robbery in the indictment or at trial.
2. Appellant Singfield's convictions were against the
manifest weight of the evidence in violation of Section
3(B)(3), Article IV of the Ohio Constitution, thus creating a
manifest miscarriage of justice because the greater weight of
the evidence demonstrated that Appellant Singfield did not
commit the offenses.
3. The trial court erred when it re-sentenced Appellant
Singfield to a greater period of incarceration that
originally imposed without articulating reasons for the
increased penalty as required by the due process clause of
the Fourteenth Amendment and in Violation of Ohio Law.
(Id. at PageID 120).
On
August 19, 2009, the Ninth District sustained Mr
Singfield's first assignment of error, rejected the
second, and found the third moot. (Id. at PageID
204-20). The judgment of the trial court was affirmed in part
and reversed in part, and the case was remanded for further
proceedings. (Id.; see also State v.
Singfield, 918 N.E.2d 187 (Ohio Ct. App. 2009)
(“Singfield I”)). The State sought an
appeal to the Supreme...
