Suntoke v. Warden

• Decision Date: 20 December 2018
• Docket Number: Case No. 2:15-cv-1354
• Parties: KALI S. SUNTOKE, Petitioner, v. Warden, Chillicothe Correctional Institution Respondent.
• Court: U.S. District Court — Southern District of Ohio

KALI S. SUNTOKE, Petitioner, v. Warden, Chillicothe Correctional Institution Respondent.

Case No. 2:15-cv-1354

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

December 20, 2018

District Judge James L. Graham

Magistrate Judge Michael R. Merz

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on recommittal from District Judge Graham (ECF No. 79) to reconsider the case in light of Petitioner's Objections (ECF No. 78) to the Magistrate Judge's original Report and Recommendations ("Report," ECF No. 70).

The Petition was filed pro se and pleads nineteen Grounds for Relief as follows:

GROUND ONE: The Grand Jury was prejudiced and biased due to the prosecutorial misconduct which led to the prejudice of the Petitioner.

GROUND TWO: Petitioner' sentence of Seven years is grossly disproportionate and inconsistent to the sentences imposed on similar offenders for similar offenses, hence the State of Ohio fails to comply with the United States Supreme Court's proportionality analysis in violation of the 8th and the 14th Amendments of the United States Constitution.

GROUND THREE: The Trial Judge was completely biased and prejudiced against the Petitioner on account of his race and religion.

GROUND FOUR: Both the Trial Counsels and the Appellate Counsel were ineffective and inadequate pursuant to Strickland v/s. Washington to the prejudice of the Petitioner.

GROUND FIVE: The Petitioner was deprived of his liberty without an Arrest Warrant in violation of Illinois v/s Gates, 462 US 213.

GROUND SIX: Detective Hill misled the Judge in his Affidavit for the issue of a Search Warrant in violation of United States v/s Leon, 468 US 897.

GROUND SEVEN: There is no evidence in the Plea Colloquy regarding a factual basis for the Plea.

GROUND EIGHT: The Trial Court failed to state the elements of the offense during the Petitioner's Plea Colloquy in violation of Henderson v/s Morgan, 426 US 637.

GROUND NINE: The Trial Court violated North Carolina v/s Alford 400 US 25 by not convicting the Petitioner on a lesser included offense which was supported by the evidence offered by the State.

GROUND TEN: The Trial Court failed to comply with Ohio Criminal Rule 11 (C)(2)(c) and thus failed to comply with the strict mandates of Boykin v/s Alabama, 395 US 336.

GROUND ELEVEN: Detective Hill violated Gerstein v. Pugh 420 US 103, by not obtaining a determination of probable cause after the warrantless arrest of the Petitioner.

GROUND TWELVE: The Trial Court violated the Petitioner's Speedy Trial Rights.

GROUND THIRTEEN: Denial of a Continuance by the Trial Judge violated the Petitioner's Constitutional Rights.

GROUND FOURTEEN: Trial Counsels were ineffective and committed prejudicial errors.

GROUND FIFTEEN: Prejudicial error was committed against the Petitioner by the Zanesville Police Department and Agent Bryant when they violated the Petitioner's Article 36 of the Vienna Convention to which treaty the United States is a signatory.

GROUND SIXTEEN: The Petitioner's "reasonable expectation of privacy" rights were violated when the Franklin County Task Force hacked into the Petitioner's personal home laptop computer.

GROUND SEVENTEEN: Trial Counsel were ineffective and inadequate and then committed prejudicial error when they failed to file a Motion pursuant to Criminal Rule No. 12(C) regarding an 'Ignorantia Facti Excusat' Issue on Petitioner's behalf.

GROUND EIGHTEEN: The Petitioner's constitutional rights under the Eighth Amendment were violated as the Petitioner's sentence amounted to cruel and unusual punishment under the totality of circumstances.

GROUND NINETEEN: The Zanesville Municipal Court made an unreasonable factual determination pertaining to Petitioner's Waiver of the Preliminary hearing.

(Petition, ECF No. 8-2, PageID 230-31.)

The Report discusses each Ground for Relief individually after devoting space to discussing general habeas corpus law in light of the fact that the Petition is 410 pages long and the Traverse is 475 pages long.

Since the Report was filed, Petitioner has acquired retained counsel who filed the Objections. Having repeated the Grounds for Relief and the standard for review of a Magistrate Judge's report and recommendations, counsel divides his argument into three sections:

III. Procedural Default (Grounds 1-2, 4-16, 19) (Objections, ECF No. 78, PageID 2237-39).

IV. No Contest Plea (Ground 1, 6, 11-12, 15-16, 18). Id. at PageID 2239-40

V. Objections Relating to Grounds One, Seven, and Eight. Id. at PageID 2240-52.

This Supplemental Report will respond to the Objections in the way they are organized by Petitioner's counsel.III. Procedural Default (Grounds 1-2, 4-16, 19)

In this section of the Objections, Petitioner cites the general standard for procedural default stated in Guilmette v. Howes, 624 F.3d 286 (6^th Cir. 2010)(en banc):

A habeas petitioner procedurally defaults a claim if:

(1) the petitioner fails to comply with a state procedural rule; (2) the state courts enforce the rule; (3) the state procedural rule is an adequate and independent state ground for denying review of a federal constitutional claim; and (4) the petitioner cannot show cause and prejudice excusing the default.

Id. at 690, quoting Tolliver v. Sheets, 594 F.3d 900, 928 n.11 (6th Cir. 2010)(citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). Petitioner notes that the Magistrate Judge found "that almost all claims presented in the petition were procedurally defaulted in various ways in the state courts." (Objections, ECF No. 78, PageID 2238). Petitioner then makes a blanket claim that his procedural defaults are excused because "[t]hese claims could not have been discovered by the Petitioner because he was denied ineffective [sic] assistance of counsel." Id. at PageID 2239.

Attorney error amounting to ineffective assistance of counsel can constitute cause to excuse a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1985); Howard v. Bouchard, 405 F.3d 459, 478 (6^th Cir. 2005); Lucas v. O'Dea, 179 F.3d 412, 418 (6^th Cir. 1999); Gravley v. Mills, 87 F.3d 779, 785 (6^th Cir. 1996). However, Murray v. Carrier also holds that the exhaustion doctrine "generally requires that a claim of ineffective assistance of counsel be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default in federal habeas proceedings." 477 U.S. at 489; See also Ewing v. McMackin, 799 F.2d 1143, 1149-50 (6^th Cir. 1986). Attorney error cannot constitute cause where the error caused a petitioner to default in a proceeding in which he was not constitutionally entitled to counsel, e.g.,a discretionary appeal or state post-conviction proceeding. Coleman v. Thompson, 501 U.S. 722 (1991). "Attorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" Murray v. Carrier, 477 U.S. 478, 488 (1985), quoted in Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640, 671 (1991). The ineffective assistance claim cannot be presented as cause if it was itself procedurally defaulted in the state courts, unless one of the standard excuses for that procedural default exists, to wit, actual innocence or cause and prejudice. Edwards v. Carpenter, 529 U.S. 446 (2000).

The Report recommends relying on procedural default, at least as an alternative holding, to dismiss the following Grounds for Relief on the bases cited:

Ground One: Grand Jury Bias Caused by Prosecutorial Misconduct. Defaulted because never presented to the state courts. The Report also notes Suntoke never presented an ineffective assistance claim related to Ground One to the Ohio courts. (Report, ECF No. 70, PageID 2178).

Ground Two: Disproportionate Sentence. Defaulted because apparent on direct appeal but not raised. "Suntoke blames this on ineffective assistance of appellate counsel, but procedurally defaulted that excuse when he failed to properly file his Ohio R. App. P. 26(B) application. See Edwards v. Carpenter, 529 U.S. 446, 453 (2000), supra." (Report, ECF No. 70, PageID 2181.)

Ground Three: Judicial Bias. Defaulted because never presented in a motion for disqualification to the Chief Justice of the Supreme Court of Ohio and not raised on direct appeal. Id. at PageID 2184. Claim of ineffective assistance of appellate counsel to excuse already discussed.

Ground Four: Ineffective Assistance of Both Trial and Appellate Counsel. Defaulted because Suntoke failed to properly file his 26(B) Application to Reopen and failed to appeal from denial of reopening. Id. at PageID 2186.

Ground Five: Warrantless Arrest. Found defaulted because never raised in the state courts.

Ground Six: Improperly Issued Search Warrant. Found defaulted because not raised in petition for post-conviction relief, since it depends on facts outside the record. Id. at PageID 2201.

Ground Seven: No Record of a Factual Basis for the Conviction. Found defaulted because available on direct appeal and never raised. Id. at PageID 2201-02.

Ground Eight: Failure of the Trial Court to State the Elements of the Offense. Same as Ground Seven. Id.

Ground Nine: Failure to Convict of Lesser Included Offense. Same as Ground Seven. Id. at PageID 2203. Same as Ground Seven. Id. at PageID 2203.

Ground Ten: Invalid No Contest Plea. Same as Ground Seven. Id. at PageID 2204.

Ground Eleven: Failure to Obtain Determination of Probable Cause Post-Arrest. Same as Ground Seven, Id.

Ground Twelve: Violation of Speedy Trial Rights. Same as Ground Seven. Id. at PageID 2205.

Ground Thirteen: Denial of a Continuance to Obtain New Counsel. Same as Ground Seven. Id. at PageID 2206.

Ground Fourteen: Ineffective Assistance of Trial Counsel/Motion to Suppress. Duplicates Ground Four and was recommended to be dismissed on the same basis. Id.

Ground Fifteen: Violation of the Vienna Convention. Found defaulted...