Smith v. Warden, CASE NO. 2:16-CV-533

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtJUDGE GEORGE C. SMITH
Docket NumberCASE NO. 2:16-CV-533
Decision Date29 September 2017

JAMES H. SMITH, Petitioner,

CASE NO. 2:16-CV-533


September 29, 2017

Magistrate Judge Elizabeth P. Deavers


Petitioner, a state prisoner, brings the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, this action is hereby DISMISSED.

Petitioner's Motion to Amend/Correct (ECF No. 10), is GRANTED. Petitioner's Motion to Add Affidavit (ECF No. 14), is DENIED, as moot. Petitioner's Motion for Judicial Notice (ECF No. 12), is GRANTED IN PART AND DENIED IN PART. Petitioner's unopposed Motion to Expand/Complete Record Pursuant to Rule 5 of the Rules governing Section 2254 Cases (ECF No. 23), to include a copy of the transcripts of pre-trial proceedings, is GRANTED. Petitioner's request for a certificate of appealability is GRANTED.

Facts and Procedural History

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:

James H. Smith is appealing from several convictions for aggravated robbery, kidnapping and other related felonies and

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specifications. As a result of his conviction, he was ordered to be incarcerated for a total of 84 years.

Counsel for Smith has assigned ten errors for our consideration:

First Assignment of Error: The trial court improperly exposed the jury to inadmissible hearsay testimony in violation of Evid.R. 801.

Second Assignment of Error: The trial court erred in admitting statements given by out-of-court declarants in violation of the Confrontation Clauses of the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution.

Third Assignment of Error: The trial court erred in allowing stipulations of the parties that violated Appellant's right to confrontation under the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution without first ensuring Appellant understood his right of confrontation and thereafter knowingly, intelligently and voluntarily waived that right.

Fourth Assignment of Error: Counsel for Appellant fell short of providing adequate representation and as a result Appellant's right to effective assistance of counsel, was violated.

Fifth Assignment of Error: The trial court erred when it allowed the jury to receive articles and information during deliberations that had not been admitted into evidence at trial in violation of Appellant's statutory and constitutional due process rights.

Sixth Assignment of Error: The trial court erred in its finding that the firearm specifications associated with each robbery had to all be served consecutively.

Seventh Assignment of Error: The cumulative effect of the errors advanced in this brief resulted [in] a violation of Appellant's right to a fair trial and thus entitles him to a new trial.

Eighth Assignment of Error: The trial court erred when it entered judgment against the defendant when the evidence was insufficient to sustain the convictions.

Ninth Assignment of Error: The judgment of the trial court was against the manifest weight of the evidence.

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Tenth Assignment of Error: The trial court erred by failing to merge Appellant's convictions at sentencing in violation of R.C. 2941.25(A), the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution.

Smith was indicted on 34 counts of aggravated robbery, 34 counts of robbery, 54 counts of kidnapping, and 19 counts of having a weapon under disability and one count of tampering with evidence. Most of the charges carried repeat violent offender ("RVO") specifications and three-year firearm specifications.

The State of Ohio narrowed the charges somewhat before the trial started, dismissing the robbery charges which were uniformly lesser included offenses of the aggravated robbery charges. The State also dismissed the tampering with evidence charge and the charges related to the armed robbery of one Chipotle restaurant. This left charges involving 18 separate incidents.

The RVO specifications and the weapon under disability charges were tried to the trial court judge in order to avoid exposing jurors to details of Smith's prior felony record.

There does not seem to be serious debate that the 18 sets of robberies occurred, at least based upon the record before us on appeal. The sole issue at the trial was whether James H. Smith was the robber. The jury and the trial court judge were convinced beyond a reasonable doubt that he was in several instances.

Unknown to the jury was the fact that Smith's trial counsel was struggling with a series of allegations that counsel had been involved in a series of rapes. Eventually, trial counsel was convicted of rape charges, sentenced and disbarred. Appellate counsel alleges that trial counsel's personal problems affected the representation Smith received at trial and deprived Smith of effective assistance of trial counsel. We will address the assignments of error which touch on that allegation first.

The State and Smith's trial counsel reached an agreement about a wide range of stipulations about the underlying facts of the armed robberies. From the perspective of defense counsel, this minimized the exposure of the jury to the human terror and suffering caused by the robber. From a different perspective, the stipulations made it easier for the State to convict Smith of the robberies and cause Smith to receive basically a life sentence of imprisonment.

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State v. Smith, No. 13AP-973, 2015 WL 872753, at *1-3 (Ohio App. 10th Dist. March 3, 2015). On March 3, 2015, the appellate court affirmed the judgment of the trial court. Id. On June 24, 2015, the Ohio Supreme Court declined jurisdiction of the appeal. State v. Smith, 142 Ohio St.3d 1520 (Ohio 2015).

On June 13, 2016, Petitioner filed the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that the trial court improperly exposed the jury to inadmissible hearsay (ground A); that he was convicted in violation of the Confrontation Clause (ground B); that the trial court improperly permitted certain stipulations by the parties that violated the Confrontation Clause, without determining whether Petitioner knowingly, intelligently, and voluntarily waived that right (ground C); that he was denied the effective assistance of counsel based on his attorney's agreement to enter into stipulations regarding the elements of the robbery and kidnapping charges and Sprint phone records; failure to file a motion to sever the charges related to the July 12, 2012, Red Robin robbery (ground D); that he was denied due process due to the admission of certain articles and information during jury deliberations that had not been admitted at trial (ground E); that the trial court improperly imposed consecutive terms of incarceration on Petitioner's firearm specifications (ground F); that he was denied a fair trial based on cumulative error (ground G); that the evidence was constitutionally insufficient to sustain his convictions (ground H); and that his convictions on aggravated robbery and kidnapping should have been merged at sentencing (ground I). It is the position of the Respondent that Petitioner's claim should be dismissed as procedurally defaulted or without merit.

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Motion to Amend

Petitioner has filed a motion to amend the Petition to include additional facts and arguments from his state appellate brief in support of habeas corpus grounds A and B, in which he asserts that the trial court improperly exposed the jury to inadmissible hearsay and erred in admitting certain testimony, in violation of the Confrontation Clause. Petitioner indicates that these claims are related. He requests the Court to conduct a de novo review of ground B. Petitioner also provides additional argument in support of ground D, in which he asserts that he was denied effective assistance of trial counsel.

Respondent opposes Petitioner's motion to amend. See Respondent's Memorandum in Opposition to Petitioner's Motion for Leave to Amend Petition. (ECF No. 19.) According to the Respondent, the one-year statute of limitations provided in 28 U.S.C. § 2244(d) bars amendment of the Petition, and any amendment would, in any event, be futile. Respondent additionally contends that the Court should bar any amendment of the Petition, as Petitioner could have included these facts in support in his initial filing and may provide additional legal arguments through the filing of a Traverse. Id. However, Respondent also maintains that the Court should dismiss Petitioner's claims for failure to comply with Rule 2(c) of the Rules Governing Section 2254 Cases, which requires that a pleader provide sufficient facts in support of his claims. Return of Writ (ECF No. 7, PageID# 32-34.)

"Dismissal under Habeas Rule 2(c) is appropriate in cases . . . where the petition and accompanying documents, as well as petitioner's additional pleadings and notices, contain 'so many unintelligible and conclusory allegations and statements' that it is impossible for the Court to determine 'the exact errors of fact or law' that have been raised for adjudication or even whether petitioner's stated grounds for relief pertain to anything that occurred in the challenged

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[] criminal case." Rice v. Warden, No. 1:14-cv-732, 2015 WL 5299421, at *4 (S.D. Ohio Sept. 9, 2015) (citing Tinsley v. Beasley, No.5:11cv13289, 2011 WL 3497306, at *2 (E.D. Mich. Aug. 10, 2011) (other citations omitted)). Despite Respondent's argument to the contrary, such are not the circumstances here. Moreover, the Court liberally construes the allegations of a pro se petitioner, and holds a pro se prisoner's complaint to less...

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