Smith v. Brunsman
| Decision Date | 27 February 2009 |
| Docket Number | Case No. 1:07cv878. |
| Citation | 626 F.Supp.2d 786 |
| Parties | Angelo SMITH, Petitioner, v. Timothy BRUNSMAN, Warden, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
Angelo Smith, Lebanon, OH, pro se.
Gene D. Park, Diane Duemmel Mallory, Ohio Attorney General, Columbus, OH, for Respondent.
This matter is before the Court on the Report and Recommendation filed by the Magistrate Judge on December 16, 2008 (Doc. 16).
Proper notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the Report and Recommendation in a timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir.1981). Despite receiving extensions to file objections (See Docs. 19 and 22), no objections to the Magistrate Judge's Report and Recommendation have been filed.
Having reviewed this matter de novo pursuant to 28 U.S.C. 636, this Court finds the Magistrate Judge's Report and Recommendation to be correct.
Accordingly, it is ORDERED that the Report and Recommendation of the Magistrate Judge is hereby ADOPTED. Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DENIED with prejudice consistent with the opinion of the Magistrate Judge; and the Motion to Amend Petitioner (Doc. 14) is DENIED. This matter is closed.
A certificate of appealability shall not issue with respect to petitioner's claims for relief under the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and therefore DENIES petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R.App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this case pro se seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the petition (Doc. 1), respondent's return of writ and exhibits thereto (Doc. 9), petitioner's motion for leave to amend petition for a writ of habeas corpus (Doc. 14), and respondent's memorandum in opposition. (Doc. 15).
This case involves the following facts, as summarized by the First District Ohio Court of Appeals:1
Smith, Valtina Lovette, and their daughter, Kyra, had lived together in Lovette's Bond Hill home. Lovette's other daughter, Kayla, also lived there. Lovette and Smith's relationship was acrimonious, however, and Lovette had told Smith to move out as soon as he found another residence.
Sometime thereafter, Smith set fire to Lovette's home. Before doing so, he took Lovette's cellular phone from her purse and cut the cords to her landline telephones. Lovette and her children watched as Smith retrieved a gasoline can from his car and doused the side of their house with the gasoline. Smith ignited the doused area with a lighter and then extinguished the flame with water. Smith told Lovette "[G]o to sleep tonight, you and the kids will burn."
Kayla called for help on a phone that was still working. A family friend, Stephanie Hall, and her boyfriend immediately went to Lovette's residence. Smith was still there. Hall testified at trial that she had asked Smith why he had set the fire, and that he responded that if he could not live there then no one else could.
Police arrived and arrested Smith. Cincinnati Fire Specialist Paul Alloway was called to the scene to investigate. He recovered a gasoline can and later determined that gasoline had been purposely splashed on the siding of Lovette's house and ignited with a lighter or match.
Petitioner was indicted by the Hamilton County Grand Jury on two counts of aggravated arson in violation of Ohio Rev. Code § 2909.02(A)(1) and (A)(2). (Doc. 9, Exhibit 1).
Following a jury trial, petitioner was found guilty of all charges. On June 6, 2006, petitioner was sentenced to concurrent terms of imprisonment of ten years on the first count of aggravated arson and eight years on the second count of aggravated arson. (Doc. 9, Exhibit 2).
Petitioner, through new counsel, filed a timely notice of appeal in the First District Court of Appeals and raised the following assignments of error:
1. Smith was denied due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution by the improper conduct of the assistant prosecutors in calling a witness to testify not provided to the defense in discovery and by making improper comments during closing argument.
2. The trial court erred as a matter of law by permitting other acts testimony into evidence thus prejudicing Smith's right to a fair trial.
3. The trial court erred to Smith's prejudice by entering a judgment entry of conviction when the evidence was insufficient as a matter of law, and/or against the manifest weight of the evidence to sustain a conviction that Smith committed the crime of aggravated arson.
4. The trial court erred to Smith's prejudice when it improperly sentenced him to a maximum term of imprisonment without findings by a jury or admissions of the facts formerly required by R.C. § 2929.14.
(Doc. 9, Exhibit 3). The State filed a response. (Doc. 9, Exhibit 4). On May 30, 2007, the Court of Appeals affirmed the judgment of the trial court overruling each assignment of error. (Doc. 9, Exhibit 5).
Petitioner filed a timely pro se notice of appeal in the Supreme Court of Ohio and raised the following propositions of law in his memorandum in support of jurisdiction:
1. The Common Pleas and Court of Appeals judgment entries of sentence violate Appellant's right to trial by jury where Appellant was sentenced to a term of incarceration which exceeded the statutory maximum mandated by the Sixth and Fourteenth Amendments. The decision rendered by the Ohio Supreme Court in State v. Foster (2006), 109 Ohio St.3d 1 , which purports to authorize sentences in excess of the statutory maximum, is incompatible with the controlling precedent of the United States Supreme Court and must be rejected.
2. The Court of Common Please and Court of Appeals by affirmance, violated Appellant's right not to be subjected to ex post facto law, by sentencing him to a term of incarceration which exceeds the maximum available under the statutory framework at the time of the offenses. The decision rendered by the Ohio Supreme Court in State v. Foster (2006), 109 Ohio St.3d 1 , which purports to authorize the sentence rendered against Appellant, is incompatible with the controlling precedent of the United States Supreme Court and violates his absolute right to procedural due process of law.
3. Defendant-Appellant's sentences are void because he was never put on notice that his maximum/minimum sentence of three (3) years was to be enhanced in this case—a structural defect in violation of his absolute right to procedural due process of law.
4. Defendant-Appellant was deprived of the effective assistance of counsel on appeal where the attorney failed to recognize, argue and brief the fact that convicting and sentencing Appellant for both aggravated robbery and theft by threat violated his right not to be subjected to the same offense twice.
(Doc. 9, Exhibit 6). On October 3, 2007, the Ohio Supreme Court denied petitioner leave to appeal and dismissed the appeal as not involving any substantial constitutional question. (Doc. 9, Exhibit 7).
Petitioner also filed a pro se petition to vacate or set aside judgment in the trial court on the basis that his sentence was unconstitutional. (Doc. 9, Exhibit 8). The petition was overruled and petitioner did not appeal. (Doc. 9, Exhibit 10).
Petitioner filed a motion to reopen the direct appeal pursuant to Ohio App. Rule 26(B) alleging ineffective assistance of appellate counsel. (Doc. 9, Exhibit 11). The First District Court of Appeals denied the motion as untimely, and petitioner did not appeal. (Doc. 9, Exhibit 13).
On October 19, 2007, petitioner filed the instant Petition for Writ of Habeas Corpus setting forth the following grounds for relief:
GROUND ONE: Petitioner's sentences are void as violating the 14th Amendment Due Process provision as being ex post facto.
Supporting Facts: At the time the crime occurred, Ohio law mandated that the Petitioner be sentenced to the maximum sentence per Ohio Revised Code § 2929.14(B). The Ohio Supreme Court's subsequent judicial enlargement of this statute as being ex post facto; see State v. Foster (2006), 109 Ohio St.3d 1, 845 N.E.2d 740 [470].
GROUND TWO: Denial of effective assistance of counsel on appeal as a right.
Supporting Facts: Appellate counsel renders constitutionally deficient performance where he fails to cite trial counsel's ineffectiveness where sentence being void as a matter of law, both attorney failed to properly object, thereby failing to recognize[] and argue and brief a dead bang winner.
(Doc. 1, petition).
On federal habeas review, the factual findings of the state appellate court are entitled to a presumption of correctness in the absence of clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). See McAdoo v. Elo, 365 F.3d 487, 493-94 (6th Cir.2004); Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir.2001). This Court is bound by the state court adjudications unless those decisions are contrary to or an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429, 433 (6th Cir.1998).
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