Thompson v. Williams

• Decision Date: 05 February 2010
• Docket Number: Case No. 3.-07-CV-3550.
• Citation: 685 F.Supp.2d 712
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Lawrence THOMPSON, Petitioner, v. Jesse WILLIAMS, Warden, Respondent.

685 F.Supp.2d 712

Lawrence THOMPSON, Petitioner,

v.Jesse WILLIAMS, Warden, Respondent.

Case No. 3.-07-CV-3550.

United States District Court,

N.D. Ohio,

Eastern Division.

Decided: Feb. 5, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kenneth J. Rexford, Lima, OH, for Petitioner.

Jerri L. Fosnaught, Office of the Attorney General-Corrections Litigation, Columbus, OH, for Respondent.

Memorandum of Opinion and Order

PATRICIA A. GAUGHAN, District

Judge.

This matter is before the Court upon the Report and Recommendation of Magistrate Judge Pearson (Doc. 12), which recommends dismissal of the Petition for Writ of Habeas Corpus now pending before the Court. For the following reasons, the Report and Recommendation is ACCEPTED.

INTRODUCTION

Petitioner, Lawrence Thompson, commenced this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated after being convicted on five counts of drug trafficking and two counts of permitting drug abuse. This matter has been fully briefed and the Magistrate Judge issued her Report and Recommendation recommending that the Petition be dismissed on its merits. Petitioner has filed Objections to the Report and Recommendation.

STANDARD OF REVIEW

Rule 8(b)(4) of the Rules Governing Section 2254 Cases in the United States District Courts provides:

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify in whole or in part any findings or recommendations made by the magistrate.

DISCUSSION

Magistrate Judge Pearson concluded that the November 14, 2007 Petition lacks merit. The Court accepts this determination.

The Petition sets forth three grounds:

(1) The sentence imposed in this case, of a non-minimum, consecutive sentence for a person with no prior felony convictions, was unconstitutional for violation of his rights of presentment to a grand jury, to trial by jury, and to proof beyond a reasonable doubt of essential facts without which such sentence could not be imposed.

(2) The remedy applied in Ohio to petitioner of removing statutory presumptions as a cure for an admitted constitutional defect in the sentencing statute violated his right to due process by creating the equivalent of an ex post facto penalty.

(3) The sentence in this case was cruel and unusual, in violation of the Ohio Constitution and in violation of the United States Constitution, as egregiously disproportionate to similar sentences imposed for similar offenders.

Petitioner raises no specific objections to the Magistrate Judge's recommendation on grounds one and two, acknowledging that such arguments have been rejected in many previous cases. Petitioner does object to the Magistrate Judge's recommendation on ground three. Petitioner was convicted of seven felonies that carried a maximum aggregate penalty of 27 years in prison. Petitioner was sentenced to 20 years, four years on each count of drug trafficking to run consecutively, and nine months on each count of permitting drug abuse to be served concurrently.

Upon review, the Court finds that petitioner's sentence is not cruel and unusual. Strict proportionality between a crime and its punishment is not required. United States v. Marks, 209 F.3d 577, 583 (6th Cir.2000) (citing Harmelin v. Michigan, 501 U.S. 957, 959-60, 111 S.Ct. 2680 115 L.Ed.2d 836 (1991)). Only extreme sentences that are grossly disproportionate to the crime are prohibited. United States v. Hopper, 941 F.2d 419, 422 (6th Cir.1991). Moreover, a sentence within the statutory maximum generally does not impose cruel and unusual punishment. Austin v. Jackson, 213 F.3d 298, 302 (6th Cir.2000). Petitioner's sentence was within the statutory maximum, and judges in Ohio have discretion to order that sentences run consecutively. State v. Foster 109 Ohio St.3d 1, 845 N.E.2d 470 (2006). Additionally, petitioner's argument that his sentence is cruel and unusual when compared with sentences that others have received for committing similar crimes lacks merit because the Constitution does not require comparative proportionality. Pulley v. Harris, 465 U.S. 37, 43-45, 104 S.Ct 871, 79 L.Ed.2d 29 (1984). Accordingly petitioner's sentence is not contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.

In his Objections to the Magistrate Judge's Report and Recommendation, petitioner also raises, for the first time, the issue of whether he has exhausted his state remedies, alleging that the sentencing entry in his case may not be a final appealable order. Because petitioner did not raise this issue in the state court, the issue is not properly before this Court and it will not be considered.¹

CONCLUSION

For the reasons set forth herein and for the reasons set forth in the Magistrate Judge's Report and Recommendation, the Petition for Writ of Habeas Corpus is DISMISSED as without merit. Further, this Court hereby fully incorporates the Report and Recommendation by reference herein. For the reasons stated above and in the Report and Recommendation, this Court finds no basis upon which to issue a certificate of appealability.

IT IS SO ORDERED.

REPORT & RECOMMENDATION

BENITA Y. PEARSON, United States Magistrate Judge.

I. Introduction

Before the Magistrate Judge is Lawrence Thompson's ("Thompson" or "Petitioner") petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254^2-1 ECF No. 1. Thompson is incarcerated at the Allen Correctional Institution serving an aggregate sentence of twenty years imposed for a conviction on five counts of drug trafficking and two counts of permitting drug abuse. See www.drc.oh.gov/ (website of the Ohio Department of Rehabilitation and Correction for current status of and basis for Thompson's incarceration).

Thompson contends that he is entitled to the writ because the trial court's sentence violated his right to due process and was cruel and unusual. ECF No. 1 at 6-9. Specifically, Thompson asks the Court to "chang[e] his [twenty-year] sentence to a 4-year, sentence for each count, run concurrently for a net of 4 years." ECF No. 1 at 16. Warden Williams ("Respondent") acknowledges having custody of Thompson as a result of his conviction but asserts that Thompson's petition should be dismissed because the state court decisions were not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. ECF No. 6 at 23 29-30. In his response, Thompson maintains that Respondent's analysis is incorrect and that his petition shows the state court decisions constituted an unreasonable application of established Supreme Court precedent. ECF No. 7 at 28.

Having reviewed the record and applicable law, the Court finds that each of Thompson's Grounds for Relief lack merit. Accordingly, the undersigned Magistrate Judge recommends dismissing Thompson's habeas corpus petition.

II. Factual and Procedural History

A. Underlying Offenses, Plea, and Sentencing

The Allen County Court of Appeals, Third Appellate District ("State Court of Appeals") reviewed Thompson's case on direct appeal.² The underlying facts are as follows: ³

The defendant-appellant, Lawrence W. Thompson, appeals the judgment of the Allen County Common Please Court sentencing him to an aggregate prison term of 20 years.

On September 16, 2004, the Allen County Grand Jury indicted Thompson on five counts of trafficking in cocaine, violations of R.C. 2925.03(A) and (C)(4)(d), third-degree felonies, and two counts of permitting drug abuse, violations of R.C. 2925.13(A) and (C)(3), fifth-degree felonies. The charges resulted after Thompson sold cocaine to confidential informants on five occasions. Thompson initially pled not guilty to each offense and filed a motion to suppress. After the suppression motion was denied, Thompson withdrew his previously tendered pleas of not guilty and pled no contest to the indictment. At sentencing, the trial court imposed five four-year prison terms on the drug trafficking offenses and two nine-month prison terms on the permitting drug abuse offenses. The court ordered the four-year terms to be served consecutively and the nine-month terms to be served concurrently for an aggregate sentence of 20 years.

Thompson appealed the trial court's decision to this Court, challenging the judgment on the suppression motion and his sentence. We affirmed the judgment on the suppression motion, but vacated the sentence and remanded the case for a new sentencing hearing pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. State v. Thompson, 3rd Dist. No. 1-0534, 2006-Ohio-2004, appeal not allowed by 110 Ohio St.3d 1467, 2006-Ohio-4288, 852 N.E.2d 1215. At the new sentencing hearing, the trial court imposed an

identical sentence. Thompson appeals his sentence, asserting two assignments of error for our review.

ECF No. 6-3 at 2-3 (Ex. 23).⁴

B. Direct Appeal

On July 25, 2005, Thompson, through counsel, presented three assignments of error in his appellate brief to the State Court of Appeals:

I. The trial Court erred in sentencing the Defendant by imposing consecutive sentences, in violation of R.C. § 2929.14(E)(4).[]

II. Sentencing in this case violated the Apprendi doctrine as explained in Blakely v. Washington [542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)] and was therefore unconstitutional.

III. The Trial Court should have sustained the defense motion to suppress statements.

ECF No. 6-2 at 75 (Ex. 9). The State Court of Appeals affirmed the trial court's ruling denying Thompson's motion to suppress, but vacated his sentence and remanded for "further proceedings consistent with Foster." ECF No. 6-2 at 155-56 (Ex. 13). Thompson, again through counsel, appealed to the Supreme Court of Ohio on May 24, 2006, and set forth...