Taylor v. Warden, CASE NO. 2:16-CV-780

Decision Date06 October 2017
Docket NumberCASE NO. 2:16-CV-780
PartiesRICKY R. TAYLOR, II, Petitioner, v. WARDEN, LONDON CORRECTIONAL INSTITUTION, Respondent.
CourtU.S. District Court — Southern District of Ohio

RICKY R. TAYLOR, II, Petitioner,
v.
WARDEN, LONDON CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:16-CV-780

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

October 6, 2017


JUDGE ALGENON L. MARBLEY
Magistrate Judge Chelsey M. Vascura

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this 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, it is RECOMMENDED that this action be DISMISSED.

Facts and Procedural History

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

Early in the morning hours of May 4, 2013, R.M. and his fiancée, D.W., were in their car after leaving Club 57 near the intersection of Livingston Avenue and Beechwood Road in Columbus. As they prepared to drive away, appellant approached the driver's door and pointed a gun at them. Appellant then opened the driver's door and ordered R.M. and D.W. at gunpoint to give him all of their money and other property. After D.W. emptied her handbag and gave appellant her bank card, R.M. handed over some money from his pockets.

Appellant then directed R.M. and D.W. to exit the vehicle and take off their clothes. At this time, appellant took from R.M. over $700 in cash, his state identification card, wallet, and jewelry. Appellant then ordered D.W. to get up off the ground and, at gunpoint, took her to the rear of the vehicle. Appellant told D.W., who was

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wearing only her top, to put his penis into her vagina. D.W. could not comply initially because, according to her, appellant had an insufficient erection, and D.W. was using a tampon.

Appellant ordered D.W. to remove the tampon, and she dropped it on the ground. Appellant again attempted to penetrate D.W., and this time succeeded. Appellant engaged in sexual intercourse with D.W. for a few minutes, stopping only when D.W. told him that she had recently given birth. Appellant then told D.W. to get back on the ground and said that he was leaving to rob some other people who were just then leaving the club. Appellant threatened that someone else in a nearby vehicle would shoot R.M. and D.W. if either of them moved.

After a few moments, R.M. and D.W. got up and drove away. As the two stopped at the club to inform security of the robbery and sexual assault, they heard gunshots. R.M. then took D.W. to Grant Hospital, where she underwent a sexual assault examination. The sexual assault nurse examiner found semen in D.W.'s underwear that was recovered and analyzed.

Later that same night, Columbus police officers responded to the report of a shooting victim at an apartment building on Maumee Bay Way in Columbus. When police arrived, they found appellant, the shooting victim, on the ground. The officer who put appellant into an ambulance checked his pockets for weapons and found over $700 in cash and R.M.'s state identification. Investigators also found a gold necklace belonging to R.M. at the scene. The crime scene investigators later responded to the Club 57 scene where they found spent shell casings, a spent projectile, loose change, a cigarette pack, and a tampon.

The next day, R.M. identified appellant in a photo array, although D.W. was unable to identify anyone in the array presented to her. After appellant emerged from a coma, a police detective spoke to him at the hospital. In this initial police interview, appellant said that he had been shot on May 2, 2013 in a shootout in the Whitehall Kroger parking lot. A few days later, appellant spoke to another detective and repeated the same account. Appellant denied being present at Club 57 or having sexual intercourse with D.W. that night. Appellant said he had no knowledge of any of the events of May 4, 2013 and did not know how R .M.'s property ended up in his pockets. At trial, appellant attributed these comments to memory loss arising from his shooting and testified that he was at Club 57 on May 4 to complete a drug deal with R.M. and that D.W. was not present.

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Appellant was charged by indictment filed on May 23, 2013, with two counts of aggravated robbery; two counts of robbery, felonies of the second degree; two counts of robbery, felonies of the third degree; two counts of kidnapping; one count of rape; and one count of having a weapon while under disability. All counts except the last were charged with firearm specifications. Appellant pled not guilty to all the charges, and a jury trial began on March 18, 2014.

On March 21, 2014, the jury returned a verdict, finding appellant guilty on all counts, including the firearm specifications. For the purposes of sentencing, the trial court merged the two robbery counts and one kidnapping count into the aggravated robbery count with respect to D.W.; the two robbery counts and one kidnapping count into the aggravated robbery count with respect to R.M.; and all the specifications, with the exception of those charged in the aggravated robbery and rape counts with respect to D.W. Appellant was sentenced to 11 years on each aggravated robbery count and the rape count, and 3 years on the weapon under disability count. The court ordered that the aggravated robbery count with respect to D.W., the rape count, the weapon while under disability count, and the two firearm specifications be served consecutively. The court also ordered that the aggravated robbery count with respect to R.M. be served concurrently to the other counts and specifications, for a total incarceration of 31 years. The court also informed appellant that he was a Tier III sexual offender and would be required to register and verify his address in person every 90 days.

II. Assignment of Error

Appellant assigns the following error:

The trial court violated Defendant-Appellant's rights to due process and a fair trial when in the absence of sufficient evidence and against the manifest weight of evidence the trial court found Defendant-Appellant guilty of aggravated robbery, robbery, kidnapping, rape, having a weapon while under disability, and corresponding specifications.

State v. Taylor, No. 14AP-254, 2015 WL 3857079, at *1-3 (Ohio App. 10th Dist. June 23, 2015). On June 23, 2015, the appellate court affirmed the judgment of the trial court. Id. On October 28, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Taylor,

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143 Ohio St.3d 1502 (Ohio 2015). On September 22, 2015, Petitioner filed an application for reopening of the appeal pursuant to Ohio Appellate Rule 26(B). (ECF No. 6-1, PageID# 221.) On February 18, 2016, the appellate court denied the Rule 26(B) application. (PageID# 236.) On June 15, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Taylor, 146 Ohio St.3d 1417 (Ohio 2016); (PageID# 275.)

On August 11, 2016, Petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts that he was denied his right to a speedy trial (claim one); that the trial court improperly failed to merge firearm specifications, and he was denied the effective assistance of counsel because his attorney failed to raise the issue (claim two); that he was denied the effective assistance of trial counsel because his attorney failed to have DNA tested (claim three); and that he was denied the effective assistance of appellate counsel (claim four). Petitioner additionally asserts that the evidence is constitutionally insufficient to sustain his convictions and that his convictions are against the manifest weight of the evidence. See Reply (ECF No. 9, PageID# 772-777.) It is the position of the Respondent that these claims fail to provide relief or are procedurally defaulted.

State-Law Claims

Petitioner asserts that he was denied the right to a speedy trial. To the extent that Petitioner asserts the alleged violation of state law, this claim does not provide him relief. See Jackaway v. Woods, No. 15-cv-11491, 2016 WL 304739, at *3 (E.D. Mich. Jan. 26, 2016)("[a] violation of a state speedy trial law by state officials, by itself, does not present a cognizable federal claim that is reviewable in a habeas petition")(citing Burns v. Lafler, 328 F. Supp. 2d 711, 722 (citing Poe v. Caspari, 39 F. 3d 204, 207 (8th Cir. 1994), cert. denied., 514 U.S. 1024 (1995); Wells v. Petsock, 941 F. 2d 253, 256 (3rd Cir. 1991), cert. denied, 505 U.S. 1223

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(1992)); Younker v. Warden, No. 1:10-cv-875, 2011 WL 2982589, at *10 (S.D. Ohio June 24, 2011)(claims based solely on a violation of Ohio's speedy trial statute do not present a cognizable federal constitutional claim subject to review in habeas corpus proceedings)(citing Norris v. Schotten, 146 F.3d 314, 328-29 (6th Cir.), cert. denied, 525 U.S. 935 (1998)) (other citations omitted). This Court reviews a state prisoner's habeas corpus petition only on the grounds that the challenged confinement is in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). A federal court does not issue a writ of habeas corpus "on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984). Moreover, a federal habeas court does not function as an additional state appellate court reviewing state courts' decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988), cert. denied, 488 U.S. 1011 (1989). "'[F]ederal courts must defer to a state court's interpretation of its own rules of evidence and procedure'" in considering a habeas petition. Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)(quoting Panzavecchia v. Wainwright, 658 F.2d 337, 340 (11th Cir. 1984)). "Generally, a federal habeas court sitting in review of a state-court judgment should not second guess a state court's decision concerning matters of state law." Greer v. Mitchell, 264 F.3d 663, 675 (6th Cir. 2001...

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