Thomas v. Ed Sheldon

• Decision Date: 30 September 2020
• Docket Number: Case No. 5:17cv1769
• Parties: Gracshawn Thomas, Petitioner, v. Warden Ed Sheldon, Respondent
• Court: U.S. District Court — Northern District of Ohio

Gracshawn Thomas, Petitioner, v. Warden Ed Sheldon, Respondent

Case No. 5:17cv1769

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

September 30, 2020

JUDGE PAMELA A. BARKER

Magistrate Judge William Baughman, Jr.

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon the Report & Recommendation ("R&R") of Magistrate Judge William Baughman, Jr. (Doc. No. 29), which recommends that the Petition of Writ of Habeas Corpus filed by Petitioner Gracshawn Thomas pursuant to 28 U.S.C. § 2254 be dismissed in part and denied in part. Petitioner has filed Objections to the R&R. (Doc. No. 32.)

For the following reasons, Petitioner's Objections (Doc. No. 32) are overruled, the Report & Recommendation (Doc. No. 29) is adopted as set forth herein, and the Petition (Doc. No. 1) is denied.

I. Summary of Facts

Thomas's habeas petition challenges the constitutionality of his conviction and sentence for aggravated murder and other charges in the case of State v. Thomas, Summit County Court of Common Pleas Case No. Case No. CR 13 10 2888. The state appellate court summarized the facts underlying Thomas's conviction as follows:

{¶ 2} On the morning of September 18, 2013, Alphonzo Golden was waiting at a traffic light in Akron when a tan Buick Rendezvous pulled up along the driver's side of his station wagon. The driver of the Rendezvous, who, according to witnesses, was an African-American male wearing a black hat and red hooded sweatshirt, lowered the front passenger window of his vehicle, extended a gun toward Mr. Golden, and fired multiple shots, striking Mr. Golden twice and killing him. The driver of the Rendezvous then pulled around the other traffic at the intersection and sped away.

{¶ 3} A short time later, Mr. Thomas pulled into Joy Strickland's backyard in a tan Buick Rendezvous and immediately began cleaning out the vehicle's interior. He was wearing a "maroon" hooded sweatshirt. One of Mr. Thomas's cousins arrived shortly thereafter, and he began helping Mr. Thomas clean out the vehicle. Meanwhile, Mr. Golden's girlfriend learned about the shooting and went down to the scene. When police asked her about possible suspects, she gave them Mr. Thomas's name along with the name of the cousin and a friend of theirs. An analysis of Mr. Thomas's cell phone data indicated that his phone had been in the same part of the city as the shooting at the time it occurred.

{¶ 4} A week after the shooting, the police issued charges for Mr. Thomas. Early the next morning, the Rendezvous that he was driving on the morning of the shooting was found by the police. It had been painted black and set on fire. Mr. Thomas turned himself into the authorities later that day.

{¶ 5} The Grand Jury indicted Mr. Thomas for aggravated murder with a firearm specification, murder with two firearm specifications, having weapons while under disability, and tampering with evidence. At trial, Mr. Thomas testified that he had never met Mr. Golden and had no animosity toward him. He said that, on the morning of the shooting, he was driving a tan Rendezvous that belonged to a relative of his known as "Poon." According to Mr. Thomas, he was out purchasing marijuana that he intended to sell to others. When he stopped at a store, however, he realized that some of the marijuana bundles that he had made up had fallen out of his pocket. That is why he was searching through the Rendezvous and cleaning it out in Ms. Strickland's backyard. He said that he drove the Rendezvous to Ms. Strickland's backyard because that is where he was supposed to return it to Poon.

{¶ 6} A jury found Mr. Thomas guilty of the offenses, and the trial court sentenced him to a total of 35 years to life imprisonment.

State v. Thomas, 2015 WL 3765579 (Ohio Ct. App. 9th Dist. June 17, 2015).¹

II. Procedural History

A. State Court Proceedings

1. Trial Court Proceedings

On October 29, 2013, the Summit County Grand Jury issued an indictment charging Thomas with: (1) one count of Aggravated Murder in violation of Ohio Rev. Code § 2903.01(A), with two firearm specifications (Count 1); (2) one count of Murder in violation of Ohio Rev. Code § 2903.02(A), with two firearm specifications (Count 2); (3) one count of Having Weapons While Under Disability in violation of Ohio Rev. Code § 2923.13(A)(3) (Count 3); and (4) one count of Tampering with Evidence in violation of Ohio Rev. Code § 2921.12(A)(1) (Count 4). (Doc. No. 7-2 at PageID# 70-73.) Thomas pleaded not guilty to the charges. (Id. at PageID# 74).

The case proceeded to a trial by jury. On June 9, 2014, Thomas was found guilty as charged. (Id. at PageID# 75.) On June 13, 2014, the state trial court sentenced him to an aggregate term of incarceration of thirty-five (35) years to life imprisonment. (Id. at PageID# 76-78.)

2. Direct Appeal

Thomas, through counsel, filed a timely Notice of Appeal on June 16, 2014. (Id. at PageID# 79.) The state trial court appointed attorney Paul Grant to represent Thomas on appeal. On December 1, 2014, Thomas, through appointed counsel Grant, filed an appellate brief, in which he raised the following three assignments of error:

1. The trial court erred as a matter of law when it allowed the introduction of inadmissible hearsay of the alleged victim in violation of Mr. Thomas's right to confront witnesses under the Sixth Amendment to the U.S. Constitution and Article I, Section 1, 10 & 16 of the Ohio Constitution.

2. The trial court erred as a matter of law because the State failed to establish on the record sufficient evidence to support the charges levied against Mr. Clayton [sic] in violation of the Due Process clause of the 14th Amendment to the U.S. Constitution and Article I, Section 1, 10 & 16 of the Ohio Constitution.

3. Mr. Clayton's [sic] convictions are against the manifest weight of the evidence possession [sic] in violation of the Due Process clause of the 14th Amendment to the U.S. Constitution and Article I, Section 1, 10 & 16 of the Ohio Constitution.

(Id. at PageID# 85.)

Meanwhile, Thomas hired attorney Gary Levine in April of 2014 to represent him on appeal. (Doc. No. 20 at p. 2.) Levine visited Thomas in prison and spoke with him a number of times by phone. (Id.) See also Doc. No. 7-2 at PageID# 252-253. According to Thomas, Levine promised to file the appeal; however, as noted above, Thomas's appellate brief was filed by appointed counsel, Mr. Grant, on December 1, 2014, instead. (Id.) In fact, Levine did not enter an appearance until December 4, 2014. (Doc. No. 7-2 at PageID# 154.)

The state appellate court permitted appointed counsel Grant to withdraw on January 23, 2015. (Id. at PageID# 155.) That same day, Levine filed a motion to strike Grant's brief, but the state appellate court denied the motion on February 9, 2015. (Id. at PageID# 156-159.) Levine did not file any briefing in the state appellate court on Thomas's behalf.

On June 17, 2015, the state appellate court affirmed Thomas's conviction and sentence. See State v. Thomas, 2015 WL 3765579 (Ohio Ct. App. 9th Dist. June 17, 2015). Thomas asserts that neither Levine nor Grant timely informed him of the decision. (Doc. No. 20 at p. 2.) He further states that Levine promised him that he would file a timely direct appeal to the Supreme Court of Ohio. (Id.) Thomas did not, however, (either through counsel or pro se) file a timely appeal.

Rather, over a year later, on August 10, 2016, Thomas filed a pro se notice of appeal and motion for leave to file a delayed appeal in the Supreme Court of Ohio, seeking to appeal the state appellate court's June 17, 2015 decision affirming his convictions and sentence. (Id. at PageID# 170-185.) In an affidavit attached to his motion, Thomas offered the following explanation for his failure to timely appeal:

1) I found out about the judgment of the Summit County Court of Appeals that was entered on the 17th day of June 2015, in Case No. 27405 on June 22, 2015.

2) I was unable to file an appeal to this Court within forty-five (45) days of the Court of Appeals decision for the following reasons:

3) I was never informed by my counsel that a decision was rendered in my case on appeal. Due to the lack of communication, I was unable to timely file my appeal to this Honorable Court.

4) I filed an Application to Reopen my Appeal pursuant to App. R. 26(B) as my appellate counsel was ineffective. I was awaiting a decision on the filing prior to filing my appeal to this Court as I was already late and believed that the filing tolled my time. The incorrect belief would not have changed the fact that my appeal was untimely due to counsel's failure to inform me of the decision in my case which prevented me from filing within the required time.

(Id. at PageID# 174.) In the motion for leave, Thomas stated that, if granted leave to appeal, he would raise the following assignments of error:

I. Did the trial court err as a matter of law when it allowed the introduction of inadmissible hearsay of the alleged victim in violation of Mr. Thomas's right to confront witnesses under the Sixth Amendment to the U.S. Constitution and Article I, Sections 1, 10 & 16 of the Ohio Constitution and the appellate court refused to address the issue as plain error?

II. Did the trial court err as a matter of law because the State failed to establish on the record sufficient evidence to support the charges levied against Mr. Thomas in violation of the Due Process clause of the 14th Amendment to the U.S. Constitution and Article I, Sections 1, 10 & 16 of the Ohio Constitution?

III. Did the appellate court err in failing to find Mr. Thomas's convictions are against the manifest weight of the evidence in violation of the due process clause of the 14th Amendment to the U.S. Constitution and Article I, Sections 1, 10 & 16 of the Ohio Constitution?

IV. Is appellate counsel ineffective when he fails to inform an Appellant of the decision of the appellate court that resulted in Appellant missing the deadline for filing his appeal with the Supreme Court

...