Speed v. Fender
| Decision Date | 20 July 2021 |
| Docket Number | 1:18CV1296 |
| Parties | WILLIE SPEED, Petitioner, v. DOUGLAS FENDER, WARDEN, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
WILLIE SPEED, Petitioner,
v.
DOUGLAS FENDER, WARDEN, Respondent.
No. 1:18CV1296
United States District Court, N.D. Ohio, Eastern Division
July 20, 2021
SARA LIOI JUDGE
REPORT AND RECOMMENDATION RE PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS
William H. Baughman, Jr. United States Magistrate Judge
I.
Willie Speed filed a federal habeas petition to try to reverse decisions against him made by Ohio state judges. He is not alone in this endeavor. Prisoners nationwide file tens of thousands of habeas petitions each year. Hundreds in our district alone. That translates into over one-tenth of the civil cases filed each year in federal court.[1] These numbers might reasonably lead someone to conclude that the federal judiciary serves as a higher authority to second-guess all the decisions state judges make in criminal cases. But that's not the law's design.
Federal and state judges alike have for good reason called the writ of habeas corpus the great writ.[2] The writ of habeas corpus gives judges exceptional power to right wrongs in criminal cases, even to the point of overriding verdicts in cases tried to state judges or juries. We need limits on this exceptional power, however, because we don't want cases to go on forever, and we don't want federal courts routinely overturning what state judges have already decided after a lot of hard work on their part.
Out of practical necessity then, Congress has enacted laws to explain how and when federal courts can grant the great writ. Tens of thousands of prisoners each year may seek habeas relief in federal court to reverse decisions in their cases, but not every prisoner can make the necessary showing to warrant the exercise of that kind of judicial power. As a consequence, federal courts end up granting only a small fraction of prisoner petitions. Just as the law intended.
Speed uses his 28 U.S.C. § 2254 petition to try to do three things. First, he wants to vacate a trial judge's decision from October 10, 2003, finding him guilty of one count of attempted rape, two counts of rape, three counts of kidnapping, four counts of impersonating a peace officer, and one count of possession of criminal tools.[3] The trial
judge made her decision following a two-day trial to the bench.[4] The guilty verdicts resulted in a sentence of nine years to life.[5] Speed asks to be retried as a result of this claim.[6]
Second, Speed wants to vacate a second decision the trial judge made on October 10, 2003[7] after a separate hearing[8] by which she found Speed guilty of Ohio's sexually violent predator specification. Speed asks for immediate release as redress for this claim.[9]
Third, Speed wants to vacate a decision the trial judge made on November 15, 2004 by which Speed was resentenced.[10] Speed's overall sentence remained the same after resentencing. Because he never directly appealed the resentencing order, Speed asks that that order be reentered so that he can directly appeal it.[11]
On June 6, 2018, I was assigned to this case by operation of our local rule[12] for purposes of referral, including this report and recommendation. I find that Speed has not made the requisite showings to warrant federal habeas relief. Even if I excuse his procedural missteps in Ohio courts, Speed still cannot show the cause and prejudice necessary to warrant reversing the state court decisions he challenges. Accordingly,
for the reasons I explain more fully below, I recommend that Speed's petition be denied and his case be dismissed.
II.
State Court Proceedings. Findings of fact and conclusions of law that the state judge issued at the end of 2015 provide an overview of the state court proceedings in Speed's case through that year.[13] Some of those proceedings and others since 2015 warrant further description for purposes of adjudicating Speed's federal habeas petition.
On April 22, 2003, an Ohio grand jury indicted Speed on three counts of rape, three counts of kidnapping, four counts of impersonating a police officer, one count of aggravated robbery, one count of intimidation, and one count of possession of criminal tools.[14] The prosecution later amended one of the rape counts to attempted rape.[15] At the close of a trial to the bench in late August that year, the trial judge granted a directed verdict of acquittal on the aggravated robbery count, found Speed not guilty on the intimidation count, and found him guilty on the remaining counts.[16] On October 2, 2003, the trial judge sentenced Speed to nine years to life, and found that the prosecution had met its burden of proving beyond a reasonable doubt Ohio's sexually violent predator specification.[17]
On September 30, 2004, the state court of appeals affirmed the convictions but vacated his sentence and remanded for resentencing because the trial judge had sentenced
Speed on the four counts of impersonating an officer as if all four were felonies.[18] The state conceded that two of them were misdemeanors.[19] On November 15, 2004, the state trial judge resentenced Speed, made the corrections as to the two misdemeanor counts, but imposed the same overall sentence.[20] Although Speed never appealed the resentencing order, the direct appeal of the original order convicting and sentencing him was still not definitively adjudicated at the time of his resentencing. Within two weeks after the resentencing, Speed sought review in the Ohio Supreme Court of the order of September 30, 2004 by which the court of appeals had affirmed his convictions but remanded for resentencing.[21] On March 2, 2005, the Ohio Supreme Court denied leave and dismissed Speed's appeal as not involving any substantial constitutional question.[22]
Speed wasted no time seeking other post-conviction relief from Ohio state courts. By mid-June 2004, he had already filed two separate petitions for post-conviction relief: one prepared by counsel[23] and one prepared pro se.[24] Months before the court of appeals decided Speed's direct appeal and before she resentenced Speed, the trial judge had dismissed both post-conviction petitions.[25] She later issued findings of fact and conclusions of law on her decision.[26] On August 25, 2005, the court of appeals reversed
on a 2-to-1 vote the trial judge's decision on those post-conviction petitions, and remanded for a hearing on the issue of ineffective assistance of trial counsel.[27] The state unsuccessfully challenged this remand order.[28]
The post-conviction hearing on remand before the trial judge was delayed a decade for various reasons but primarily because of a conflict Speed's counsel had involving another case and one of Speed's possible alibi witnesses, Darren Monroe. Speed's counsel also represented Monroe in an unrelated homicide case. Speed's counsel withdrew from Speed's case, and the trial court appointed Speed new counsel, who then asked for a stay of the proceedings until Monroe's case was completed.[29] The trial court then allowed Speed to amend his petition for post-conviction relief, [30] and eventually commenced the hearing on June 3, 2015 with Speed now with two attorneys by his side after his original lawyer had cleared the conflict and reentered the case.[31] Speed's amended petition raised essentially the same grounds he now raises in the petition before me for federal habeas relief.
Following the hearing, [32] the trial judge denied Speed's petition for post-conviction relief. On December 7, 2015, she issued findings of fact and conclusions of law in
conjunction with her ruling.[33] Speed appealed this ruling pro se to the court of appeals, [34]which dismissed his appeal for failure to file a timely, conforming brief.[35] The court of appeals denied Speed's request for reconsideration, [36] and on May 31, 2017, the Ohio Supreme Court declined to accept jurisdiction.[37]
Speed attempted other avenues for his claims. On September 3, 2015, Speed's lawyer filed a motion for leave to file a delayed appeal, making the same arguments Speed raises in Ground Two and Ground Three in his federal habeas petition.[38] The court of appeals denied his motion.[39] On December 7, 2016, Speed's lawyer filed a motion for relief from the December 7, 2015 judgment, making the same arguments Speed raises in Ground Three of his federal habeas petition.[40] Both the trial court[41] and the court of appeals[42] rejected Speed's arguments. One month after Speed filed his federal habeas petition, the Ohio Supreme Court also rejected this last attempt by him to seek post-conviction relief in Ohio state courts.[43]
Federal Court Proceedings. On June 5, 2018, Speed filed in this Court a pro se
petition under 28 U.S.C. § 2254 for a writ of habeas corpus.[44] He bases his petition on three grounds
Ground One: “Petitioner was deprived of his constitutional right to effective assistance of counsel at trial under the Sixth and Fourteenth Amendments.”[45]
Speed's supporting facts for Ground One focus on the failure of his trial counsel, Myron Watson, to put a person named Yolanda Humphrey-Monroe (Darren Monroe's wife) on the stand as an alibi witness. In addition, Speed disagrees with the trial strategy his attorney used that led him to call no defense witnesses at trial. He also disagrees with the decision of his trial counsel not to interview or call Darren Monroe as a defense witness.[46]
Ground Two: “Petitioners [sic] conviction of the sexually violent predator specification is not supported by sufficient evidence and, therefore, violates the Due Process Clause of the Fourteenth Amendment.”[47]
Although Speed characterizes Ground Two as an evidentiary deficiency, he supports this claim by repeating a post-conviction legal argument his attorneys made on his behalf in the state courts. His legal position is that Ohio law at the time of his sentencing did not permit the underlying crime on which...
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