Taylor v. Sheldon

• Decision Date: 22 October 2014
• Docket Number: 1:13CV1417
• Parties: AVERY TAYLOR, Petitioner v. ED SHELDON, Warden, Respondent
• Court: U.S. District Court — Northern District of Ohio

AVERY TAYLOR, Petitioner v. ED SHELDON, Warden, Respondent

1:13CV1417

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

October 22, 2014

JUDGE DAN AARON POLSTER

(Mag. Judge Kenneth S. Mchargh)

REPORT AND RECOMMENDATION

McHARGH, MAG. JUDGE

The petitioner Avery Taylor ("Taylor") filed a petition pro se for a writ of habeas corpus arising out of his 2010 conviction in the Lorain County (Ohio) Court of Common Pleas for felonious assault, receiving stolen property, and participating in a criminal gang. (Doc. 1.)

In his petition, Taylor raises six grounds for relief:

1. A trial court's abuse of discretion in denying a motion for mistrial violates the constitutional guarantee to an impartial jury as provided by the 6th Amendment to the United States Constitution.

2. A conviction absent the presentation of sufficient evidence and/or proof beyond a reasonable doubt violates the constitutional guarantee to not be deprived of *** liberty *** without due process, as provided by the 5th & 14th Amendments to the United States Constitution.

3. The trial court's allowance of the state to proceed with an indictment that does not provide adequate notice violates the constitutional guarantee to not be deprived of *** liberty *** without

due process, as provided by the 6th & 14th Amendments to the United States Constitution.

4. A trial court's abuse of discretion in allowing evidence of a murder case that was dismissed violates the constitutional guarantee to not be deprived of *** liberty *** without due process, as provided by the 5th & 14th Amendments to the United States Constitution.

5. A trial court's abuse of discretion in, (a) allowing police officers to testify *** absent verified qualification and, (b) allowing prejudicial photos (etc.) absent proper foundation violates the constitutional guarantee to not be deprived of *** liberty *** without due process, as provided by the 5th & 14th Amendment to the United States Constitution.

6. A trial court's unreasonable tolling calculations violates the speedy trial guarantee as provided by the 6th & 14th Amendment to the United States Constitution.

(Doc. 1.) The respondent has filed a Return of Writ (doc. 6), and Taylor has filed a Traverse (doc. 17).

I. FACTUAL AND PROCEDURAL BACKGROUND

The court of appeals set forth a factual and procedural background, which is excerpted¹ here:

On January 13, 2010, both Taylor and Miller were involved in an automobile collision with Eric Echols and his two passengers. Echols fled the scene after the accident and brought the matter to the attention of the Lorain Police Department. The matter ultimately was reviewed by the police department's gang task force, as both Taylor and Miller were believed to be gang members affiliated with the Southside gang in Lorain. The police received information that Taylor stole the car that was involved in the collision with Echols and that the collision may have been an intentional, retaliatory attack that stemmed from Taylor and Miller's Southside gang membership and Echols' affiliation with the Westside.

On February 19, 2010, a grand jury indicted Taylor on the following counts: (1) felonious assault, in violation of R.C. 2903.11(A)(2); (2) participating in a criminal gang, in violation of R.C. 2923.42(A); and (3) receiving stolen property, in violation of R.C. 2913.51(A). Taylor's felonious assault charge also contained an attendant specification for committing a felony offense of violence while participating in a criminal gang. Additionally, a fourth charge for participating in a criminal gang, in violation of R.C. 2923.42(A), was added by supplemental indictment on July 1, 2010. The State later dismissed the count for participating in a criminal gang that was charged in the original indictment.

* * * * * *

Taylor and Miller's cases were joined for trial, and a jury trial began on August 24, 2010. At the conclusion of the trial, the jury found Taylor guilty of felonious assault, receiving stolen property, and participating in a criminal gang, but not guilty of the specification to count one. * * * * * The trial court sentenced Taylor to a total of fifteen years in prison . . . .

(Doc. 12, RX 24, at 1-2; State v. Miller, No. 10CA009922, 2012 WL 1020239, at *1 (Ohio Ct. App. Mar. 26, 2012).)

Taylor filed a timely appeal of his conviction, and presented thirteen assignments of error:

1. The trial court erred to the detriment of appellant by not ordering a mistrial when an associate of the appellant's who appeared in alleged "gang photographs" with appellant entered the jury room and intimidated the jury and when officers identified appellant as a gang member.

2. The trial court erred to the detriment of appellant by not ruling in favor of appellant's motion to dismiss pursuant to the appellant's right to a speedy trial.

3. The trial court erred to the detriment of appellant when it allowed the state to proceed with an indictment in which a verdict of guilty could be reached with the jury not being unanimous as to any one set of facts.

4. The trial court erred to the detriment of appellant by trying him for felonious assault and participating in a criminal gang at the same trial as trying these two charges together was highly prejudicial.

5. The trial court erred to the detriment of appellant by allowing the introduction of alleged evidence of other acts that were more prejudicial than probative.

6. The trial court erred to the detriment of appellant by allowing police officers to testify as gang experts even though they were not qualified as experts and had not provided expert reports.

7. The trial court erred to the detriment of appellant by allowing evidence to be presented without first laying a proper foundation.

8. The trial court erred to the detriment of appellant by allowing evidence to be presented that was more prejudicial than probative.

9. The trial court erred to the detriment of appellant by allowing evidence to be presented of a case against appellant which had been dismissed in which appellant was accused of murder.

10. The trial court erred to the detriment of appellant by allowing the state's gang experts to testify that appellant belonged to a gang rather than letting the jury draw its own conclusions based on evidence presented.

11. The jury erred to the detriment of appellant when they found appellant guilty of participating in a criminal gang as there was no proof beyond a reasonable doubt that the gang had a primary activity of the crimes listed in R.C. 2923.41(B).

12. The trial court erred to the detriment of appellant by imposing court appointed attorney fees and court costs against appellant even though appellant was indigent and incarcerated.

13. The trial court erred to the detriment of appellant by giving erroneous jury instructions as to felonious assault.

(Doc. 12, RX 22.) The court of appeals affirmed Taylor's criminal conviction on March 26, 2012. His twelfth ground was sustained, and remanded for further proceedings. (Doc. 12, RX 24; Miller, 2012 WL 1020239, at *29.)

Taylor then filed an appeal to the Supreme Court of Ohio, setting forth six propositions of law:

1. A trial court's abuse of discretion in denying a motion for mistrial violates the constitutional guarantee to an impartial jury trial as provided by the 6th Amendment & Article I § 10 of the Ohio Constitution.

2. A conviction absent the presentation of sufficient evidence and/or beyond a reasonable doubt violates the constitutional guarantee to not be deprived of *** liberty *** without due process, as provided by the 5th & 14th Amendments and Article I § 16 of the Ohio Constitution.

3. The trial court's allowance of the state to proceed with an indictment that does not provide adequate notice violates the constitutional guarantee to notice of the charges * * *, as provided by the 6th & 14th Amendments and Article I § 10 of the Ohio Constitution.

4. A trial court's abuse of discretion in allowing evidence of a murder case that was dismissed violates the constitutional guarantee to not be deprived of *** liberty *** without due process, as provided by the 5th & 14th Amendments and Article I § 16 of the Ohio Constitution.

5. A trial court's abuse of discretion in, (a) allowing police officers to testify *** absent verified qualification and, (b) allowing prejudicial photos (etc.) absent proper foundation violates the constitutional guarantee to not be deprived of *** liberty *** without due process, asprovided by the 5th & 14th Amendments and Article I § 16 of the Ohio Constitution.

6. A trial court's unreasonable tolling calculations violates the speedy trial guarantee as provided by the 6th & 14th Amendments to the U.S. Constitution, and Article I § 10 of the Ohio Constitution.

(Doc. 12, RX 27.) On Sept. 5, 2012, the Supreme Court denied leave to appeal, and dismissed the appeal as not involving any substantial constitutional question. (Doc. 12, RX 29; State v. Miller, 132 Ohio St.3d 1514, 974 N.E.2d 112 (2012).

II. HABEAS CORPUS REVIEW

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, which provides the standard of review that federal courts must apply when considering applications for a writ of habeas corpus. Under the AEDPA, federal courts have limited power to issue a writ of habeas corpus with respect to any claim which was adjudicated on the merits by a state court. The Supreme Court, in Williams v. Taylor, provided the following guidance:

Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied -- the state-court adjudication resulted in a decision that (1) "was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a

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