Sluss v. Warden

• Decision Date: 29 August 2016
• Docket Number: Case No. 1:15-cv-395
• Parties: RICHARD SLUSS, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

RICHARD SLUSS, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

Case No. 1:15-cv-395

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

August 29, 2016

Bertelsman, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

Petitioner, an inmate in state custody at the Chillicothe Correctional Institution in Chillicothe, Ohio, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). This matter is before the Court on the petition, respondent's return of writ, and petitioner's "traverse" in reply to the return of writ (Docs. 1, 7, 10).¹

I. PROCEDURAL BACKGROUND

State Trial Proceeding

In August 2013, the Highland County, Ohio, grand jury returned an indictment charging petitioner with two counts of illegal manufacture of drugs in violation of Ohio Rev. Code § 2925.04(A) (Counts One and Two) and one count of illegal assembly or possession of chemicals for the manufacture of drugs in violation of Ohio Rev. Code § 2925.04(A) (Count Three). (See Doc. 6, Ex. 1). The facts giving rise to the charges were summarized as follows by the Ohio Court of Appeals, Fourth Appellate District, based on evidence presented at petitioner's trial:²

On three occasions during the 2013 summer, the Highland County Sheriff's Department searched trailers at 6430 Riber Road in Highland County. On all three occasions, Barb SIuss, appellant's former spouse, met them at the premises and gave permission to search the trailers. Those searches yielded methamphetamine (meth) and chemicals necessary to produce them.

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At the jury trial, the most damaging testimony, aside from Highland County law enforcement authorities, came from Lacey Kelley who testified that she was with appellant on occasion and observed him "cooking" meth. Greg Grooms also testified that he retrieved a "mix" for appellant to use in cooking meth, although he was not involved in the cooking process himself. The defense offered Barb Sluss'[s] testimony (appellant's former spouse), but at no time did she contradict the State's evidence.

(Id., Ex. 11, pp. 2-3, at PAGEID#: 150-51).

Prior to trial, petitioner's trial counsel filed a motion to suppress "any all physical evidence obtained against the Defendant . . . as it was illegally obtained in violation of the Fourth Amendment to the United States Constitution and Article 1, Section 14 of the Ohio Constitution." (Id., Ex. 3). The motion was denied following a hearing held on October 4, 2013. (See id., Ex. 4). In the entry denying the suppression motion, the trial court found that petitioner's ex-wife was residing with petitioner on the three dates in question and that she "gave voluntary consent to [the] Detective ... to search the premises." (Id.).

The matter then proceeded to trial before a jury, which found petitioner guilty as charged. (See id., Ex. 5). On October 8, 2013, following a sentencing hearing, the trial court issued the final judgment entry sentencing petitioner to an aggregate term of imprisonment of fourteen (14) years, which consisted of the following consecutive sentences: six-year "mandatory" prison terms for the illegal-manufacture offenses charged in Counts One and Two and a two-year prison term for the illegal-assembly offense charged in Count Three. (Id., Ex. 6).

State Direct Review Proceedings

Petitioner's trial counsel filed a timely notice of appeal to the Ohio Court of Appeals,Fourth Appellate District, on petitioner's behalf. (See Doc. 6, Ex. 7). Thereafter, with the assistance of new counsel appointed for appeal purposes, petitioner filed an appellate brief raising the following assignments of error:

1. The trial court erred in overruling Appellant's motion to suppress evidence based on a violation of the Fourth Amendment protections against unreasonab[l]e search and seizure.

2. Appellant was not afforded the effective assistance of trial counsel [when (a) counsel failed to object to the State's admission of expert testimony regarding the presence of Methamphetamine on numerous exhibits before the chain of custody was established, and (b) counsel failed to object to the State's repeated use of leading questions].

3. The trial court erred as a matter of law in not me[r]ging together the two illegal manufacture charges with the illegal assembly charge, based on the actual trial evidence.

4. The trial court erred as a matter of law in convicting Appellant on the basis of an indictment that was supported by a defective bill of particulars.

(Id., Ex. 8).

On September 16, 2014, the Ohio Court of Appeals overruled the assignments of error and affirmed the trial court's judgment. (Id., Ex. 11).

Petitioner did not pursue a timely appeal to the Ohio Supreme Court. However, he filed a pro se motion for leave to file a delayed appeal, which was granted. (See id., Exs. 12-14). in his memorandum in support of jurisdiction, petitioner presented the following claims as propositions of law:

1. The trial court erred in overruling Appellant[']s motion to suppress evidence based on a violation of his Fourth Amendment protections against unreasonab[l]e search and seizure.

2. Appellant was not afforded the effective assistance of trial counsel . . . when Defense Counsel did not Object to the State[']s Admission of Expert Testimony Establishing the Presence of Methamphetamine on Numerous Exhibits Prior to Establishing the Chain of Custody.

3. Appellant was not afforded the effective assistance of appellate counsel. . . . Appellate counsel did not put a separate Statement of the assignment of the error so the court of appeals of Ohio Fourth appellate District had Taken the assignments of error from the brief[']s table of contents[.] Appellant was not Affor[d]ed the Effective Assistance of Trial counsel when defense counsel did not object to State[']s repeated use of leading questions[.] [D]efense counsel also elicited Testimony that was certainly detrimental to the defense. . . .

4. The trial court erred as a matter of law in not me[r]ging together the two Illegal Manufacture charges with the Illegal Assembly charge based on the actual trial evidence.

5. The trial court erred as a matter of law in convicting Appellant on the basis of an indictment that was supported by a defective bill of particulars.

(Id., Ex. 15, at PAGEID#: 215-17).

On October 8, 2014, the Ohio Supreme Court issued an Entry declining to accept jurisdiction of the appeal. (Id., Ex. 17).

Federal Habeas Corpus Petition

In June 2015, petitioner filed the instant federal habeas corpus petition. (See Doc. 1). Petitioner presents the following grounds for relief:

Ground One: The trial court erred in overruling Appellant's motion to suppress evid[ence] based on a violation of the 4th Amendment protection against unreasonable search and seizure.

Supporting Facts: The State failed to present sufficient evidence at a suppress[ion] hearing that Appellant's ex-wife had the authority to grant permission to the State's witnesses to search the back of a camper, as there were separate residence[s] on the property, and none of the residents were called to testify that Barb Sluss lived there having any authority.

Ground Two: Ineffective assistance of trial counsel.

Supporting Facts: Trial counsel failed to object to the State[']s admission of expert testimony establishing the presence of methamphetamine on numerous exhibits prior to establishing the chain of custody, violating Ohio Evid. R. 703.

Ground Three: Petitioner rec[ei]ved ineffective assistance of appellate counsel.

Supporting Facts: Appellate counsel failed to put a separate statement for theassignment of errors, and failed to address that Appellant/Petitioner was denied effective assistance of trial counsel.

Ground Four: The trial court erred in failing to merge Petitioner's sentences.

Supporting Facts: Petitioner's sentences should have merged pursuant to Ohio [Rev. Code §] 2941.25, and same acts, transaction doctrine where possessing and manufacturing of the same drugs occurs, with the same state of mind.

(Doc. 1, at PAGEID#: 5, 6, 8, 9).

Respondent has filed a return of writ addressing each ground for relief, and petitioner has filed a "traverse" in reply to the return of writ. (Docs. 7, 10).³

II. OPINION

A. The Fourth Amendment Claim Alleged In Ground One Is Barred From Review

In Ground One of the petition, petitioner asserts a Fourth Amendment claim challengingthe trial court's denial of his motion to suppress evidence that was obtained against petitioner during searches conducted by law enforcement officers at the Highland County Sheriff's Department. (See Doc. 1, at PAGEID#: 5; see also Doc. 10, at PAGEID#: 282-84). Respondent contends in the return of writ that the claim is barred from review under the Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976). (See Doc. 7, pp. 9-10, at PAGEID#: 261-62). Respondent's argument has merit.

In Stone, the Supreme Court held that federal habeas courts are prohibited from addressing the merits of Fourth Amendment claims brought by state prisoners if the prisoner had a full and fair opportunity to litigate such a claim in the state courts and the presentation of the claim was not thwarted by any failure of the State's corrective process. Stone, 428 U.S. at 494-95. The Sixth Circuit has developed a two-step inquiry in assessing whether Stone applies to preclude federal habeas review of Fourth Amendment claims. Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982); see also Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000). Under that inquiry, the federal habeas corpus court must determine (1) whether the State has provided a procedural mechanism through which, in the abstract, the petitioner could raise a Fourth Amendment claim, and (2) whether the petitioner's presentation of the Fourth Amendment claim was in fact frustrated because of a failure of that mechanism. Id.

In Riley, the Sixth Circuit held that by providing for the filing of a pretrial motion to suppress and the opportunity to directly appeal any...