Smith v. Warden

• Decision Date: 28 December 2011
• Docket Number: Case No. 1:10-cv-673
• Parties: WILLIAM SMITH, Petitioner, v. WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

WILLIAM SMITH, Petitioner,

v.WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.

Case No. 1:10-cv-673

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Dated: December 28, 2011

Spiegel, J.

Litkovitz, M.J.

REPORT AND

RECOMMENDATION

Petitioner, through counsel, has filed a 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 reply. (Docs. 1, 8, 10).

I. FACTUAL BACKGROUND

The Ohio Court of Appeals, Fourth Appellate District, provided the following summary of the facts that led to petitioner's conviction and sentence:¹

Appellant is a widower, previously married to Grade Smith. Ms. Smith died of cancer in 2005. By all accounts, appellant's behavior became increasingly bizarre after his wife's death. Appellant subsequently became romantically involved with Peggy Taylor, the wife of one of his stepsons. When she attempted to end their relationship, he held her at his house, against her will, and fired a gun next to her ear. Not surprisingly, this behavior did not endear appellant to Taylor, who eventually got free and ended their relationship.

Appellant later asked one of his former stepsons, Leroy Preston Taylor, to locate a new woman for him. Mr. Taylor introduced him to Lynn Lucas, from whom appellant had sold marijuana to and from whom he had received "intercourse" anda "blow job," but was not involved in a "relationship" with her. Apparently, appellant and Lucas were a "couple" for several months.

John Duncan, Ms. Lucas's father, typically heard from his daughter every day. Over the weekend preceding February 5, 2007, however, he did not hear from her. Mr. Duncan called his son, John, and asked him to look in on his sister. John Duncan found his sister at her home, in the bathroom, dead from what was made to appear to be a self-inflicted gunshot wound to her neck. Appellant later confessed to his stepson that he shot Lynn Lucas and caused her to drop to the floor like "a bag of tatoes [sic]."

(Doc. 8, Ex. 18, pp. 3-4).

II. PROCEDURAL HISTORY

State Trial and Appellate Court Proceedings

On October 2, 2007, the Highland County, Ohio grand jury returned an indictment charging petitioner with one count each of murder in violation of Ohio Rev. Code § 2903.02(A), voluntary manslaughter in violation of Ohio Rev. Code § 2903.03, abuse of a corpse in violation of Ohio Rev. Code § 2927.01(B), tampering with evidence in violation of Ohio Rev. Code § 2921.12(A)(1), felonious assault in violation of Ohio Rev. Code § 2903.11(A)(2), and kidnapping in violation of Ohio Rev. Code § 2905.01(A)(3). (Doc. 8, Ex. 1). An arraignment entry was filed October 16, 2007, setting a trial date of December 6, 2007. (Doc. 8, Ex. 2). On December 3, 2007, petitioner filed a motion to vacate the trial date. (Doc. 8, Ex. 3). The trial court granted petitioner's motion on December 11, 2007 and ordered a motions hearing for January 14, 2008. (Doc. 8, Ex. 4). On January 15, 2008, upon motion by the State, the trial judge recused himself from the case and a new trial date was set for June 16, 2008. (Doc. 8, Ex. 5 & 6).

On April 11, 2008, petitioner filed a motion to discharge defendant for violation of his speedy trial rights. (Doc. 8, Ex. 7). The state trial court denied petitioner's motion on July 15,2008, finding that "any delay in bringing the defendant to trial is charged to the defendant for the reason that the defendant requested the continuance of the original trial date pursuant to R.C. 2945.72(H)." (Doc. 8, Ex. 11).

The case proceeded to trial. At the close of the prosecution's case, trial counsel moved the court to dismiss counts one, three, and four pursuant to Crim. R. 29. (Doc. 9, pp. 400-03). The trial court granted petitioner's motion to dismiss the abuse of a corpse charge, but permitted the remainder of the charges to go to the jury. Id. On July 17, 2008, petitioner was found guilty of murder, tampering with evidence, felonious assault, and kidnapping. (Doc. 8, Ex. 12). He received a total sentence of 28 years to life.² Id. at 2.

On August 14, 2008, petitioner filed a timely appeal to the Ohio Court of Appeals. (Doc. 8, Ex. 14). Petitioner raised six assignments of error:

1. Trial counsel provided ineffective assistance of counsel, in violation of the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution; Strickland v. Washington (1984), 466 U.S. 668; (Sentencing Hearing Tr. 6, 12).

2. The trial court committed plain error in failing to sever the murder, abuse of a corpse, and tampering with evidence counts regarding Lynn Lucas from the felonious assault and kidnapping counts regarding Peggy Taylor. As a result of the improper joinder of these counts for William Smith's trial, he was deprived of a fair trial and due process as guaranteed by the United States and Ohio Constitutions; Crim. R. 52.

3. The trial court erred and deprived William Smith of due process and a fair trial when it entered his judgments of conviction in the absence of sufficient evidence to establish guilt. Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution; (Tr. 401-404; August 25, 2008 Amended Judgment Entry of Guilt and Ordering Confinement).

4. The trial court violated Mr. Smith's rights to due process and a fair trialwhen it entered judgments of conviction for felonious assault, and kidnapping, which were against the manifest weight of the evidence. Fifth and Fourteenth Amendments to the United States Constitution, and Section 16, Article I of the Ohio Constitution. (August 25, 2008 Amended Entry of Guilt and Ordering Confinement).

5. The trial court erred and deprived William Smith of due process of law and a fair trial as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution when it allowed improper expert opinion testimony. (Tr. 205-210).

6. The trial court violated Mr. Smith's substantive due process rights under the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution when it required all of the terms imposed to be served consecutively.

(Doc. 8, Ex. 15). On August 25, 2009, the Ohio Court of Appeals overruled petitioner's assignments of error and affirmed the trial court's judgment. (Doc. 8, Ex. 18).

Ohio Supreme Court

On October 9, 2009, petitioner filed a timely appeal to the Ohio Supreme Court. (Doc. 8, Ex. 19). In his memorandum in support of jurisdiction, petitioner asserted two propositions of law:

I. Trial counsel provides ineffective assistance, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution, for failing to object to the prejudicial joinder of offenses in one trial and for failing to move to sever unrelated charges against different alleged victims.

II. A trial court commits plain error and denies a defendant due process of law by allowing the State to prejudicially join unrelated offenses against different alleged victims in one trial. Fifth and Fourteenth Amendments to the United States Constitution; Section 16, Article I of the Ohio Constitution.

(Doc. 8, Ex. 20). On December 16, 2009, the Ohio Supreme Court denied leave to appeal and dismissed the appeal "as not involving any substantial constitutional question." (Doc. 8, Ex. 22).

Application to Reopen Appeal

Through new counsel, petitioner filed a Rule 26(B) application to reopen his appeal based on appellate counsel's failure to raise the following claims on appeal:

ASSIGNMENT OF ERROR ONE: THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING WILLIAM SMITH'S PRE-TRIAL MOTION FOR DISCHARGE WHEN THE ACCUSED DEMONSTRATES THAT THE STATE VIOLATED HIS SPEEDY TRIAL RIGHTS, CONTRA R.C. 2945.71-72, AND THE OHIO AND FEDERAL CONSTITUTIONS.

ASSIGNMENT OF ERROR TWO: STRUCTURAL ERROR OCCURS WHEN THE JURY RETURNS INCONSISTENT VERDICTS OF GUILTY TO MURDER, BUT NOT GUILTY TO VOLUNTARY MANSLAUGHTER ON THE IDENTICAL SET OF FACTS. THE TRIAL COURT IS COLLATERALLY ESTOPPED FROM SENTENCING WILLIAM SMITH TO THE HOMICIDE RELATED CHARGES, SAID SENTENCE BEING CONTRA THE DOUBLE JEOPARDY PROVISION UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION.

(Doc. 8, Ex. 23). On February 1, 2010, the Ohio appellate court denied petitioner's application to reopen his appeal. (Doc. 8, Ex. 25). Petitioner did not appeal the decision to the Ohio Supreme Court.

Federal Habeas Corpus

Through counsel, petitioner filed the instant federal habeas corpus action on September 29, 2010. (Doc. 1). Petitioner raises five grounds for relief:

FIRST GROUND FOR RELIEF: INEFFECTIVE ASSISTANCE OF COUNSEL OCCURS IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN TRIAL COUNSEL FAILS TO OBJECT TO PREJUDICIAL JOINDER OF OFFENSES IN ONE TRIAL, AND FOR FAILING TO MOVE TO SEVER UNRELATED CHARGES AGAINST DIFFERENT ALLEGED VICTIMS, CONTRA THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION.

SECOND GROUND FOR RELIEF: A TRIAL COURT COMMITS PLAIN ERROR AND DENIES PETITIONER SMITH DUE PROCESS OF LAW BY ALLOWING THE PROSECUTION TO PREJUDICIALLY JOIN UNRELATED

OFFENSES AGAINST DIFFERENT ALLEGED VICTIMS IN ONE TRIAL, CONTRA THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION.

THIRD GROUND FOR RELIEF: STRUCTURAL ERROR OCCURS WHEN THE JURY RETURNS INCONSISTENT VERDICTS OF GUILTY TO MURDER, BUT NOT GUILTY TO VOLUNTARY MANSLAUGHTER ON THE IDENTICAL SET OF FACTS. THE TRIAL COURT IS COLLATERALLY ESTOPPED FROM SENTENCING WILLIAM SMITH TO THE HOMICIDE RELATED CHARGES, SAID SENTENCE BEING CONTRA THE DOUBLE JEOPARDY PROVISION UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION.

FOURTH GROUND FOR RELIEF: THE TRIAL COURT COMMITS PREJUDICIAL ERROR IN DENYING WILLIAM SMITH'S PRE-TRIAL MOTION FOR DISCHARGE WHEN THE ACCUSED DEMONSTRATES THAT THE

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