Tucker v. Fender

• Decision Date: 30 September 2022
• Docket Number: 1:19-CV-00929-SO
• Parties: KAREEM L. TUCKER, Plaintiff, v. WARDEN DOUGLAS FENDER, Defendant,
• Court: U.S. District Court — Northern District of Ohio

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KAREEM L. TUCKER, Plaintiff, v. WARDEN DOUGLAS FENDER, Defendant,

No. 1:19-CV-00929-SO

United States District Court, N.D. Ohio, Eastern Division

September 30, 2022

SOLOMON OLIVER, JR., JUDGE.

REPORT AND RECOMMENDATION

Jennifer Dowdell Armstrong, United States Magistrate Judge.

I. INTRODUCTION

Petitioner Kareem L. Tucker, an Ohio prisoner serving a 41-year consecutive prison term for kidnapping, drug trafficking, and possession of drugs, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF Doc. 1). Tucker asserts three grounds for relief. (ECF Doc. 1, Page ID #7-21). This matter was referred to me under Local Rule 72.2 to prepare a report and recommendation on Tucker's petition and other case-dispositive motions.^[1] Because Tucker's claims are time-barred under AEDPA's one-year statute of limitations, I recommend that the court DENY Tucker's petition. I further recommend that the court DENY Tucker's petition because his claims are barred by AEDPA's statute of limitations, procedurally defaulted, and are otherwise meritless.

II. RELEVANT FACTUAL BACKGROUND

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1); see also Spagnola v. Horton, No. 17-1462, 2017 WL 8948745, *2 (6th Cir. Oct. 30, 2017).

The Ohio Court of Appeals for the Ninth District set forth the following facts on Tucker's first direct appeal:

{¶2} In the fall of 2011, a confidential informant working for the Lorain Police Department purchased crack cocaine in a studio apartment on Oberlin Road on three occasions. After the controlled buys were completed, police executed a search warrant of the residence, where they found three guns, a cache of money and crack cocaine, and household items used to deal crack cocaine. Mr. Tucker had been identified by the confidential informant and by the audio recording of the controlled buys. He was charged with four counts of trafficking in drugs in violation of R.C. 2925.03(A)(2); possession of drugs in violation of R.C. 2925.11(A); two counts of having weapons under disability in violation of R.C. 2923.13(A)(2); possessing criminal tools in violation of R.C. 2923.24(A); and use or possession of drug paraphernalia in violation of R.C. 2925.14(C)(1). Two firearm specifications were dismissed during the course of the proceedings.

{¶3} Mr. Tucker filed numerous documents on his own behalf maintaining that he was not subject to the jurisdiction of the Court and asserting his status as a sovereign citizen of “Moorish Native American” heritage. Mr. Tucker continued to make these assertions in court during pretrial appearances. He requested - then asked the court to remove - appointed counsel. Ultimately, the Court permitted him to represent himself when the case proceeded to a jury trial. The jury found him guilty of all of the charges against him, and the trial court sentenced him to a total prison term of thirteen years and four months, with the prison sentence on all charges running consecutively to each other and to the charges in another case. Mr. Tucker appealed. His five assignments of error are rearranged for purposes of resolution.

State v. Tucker, 2016-Ohio-1353, 62 N.E.3d 903, ¶¶ 2-3.

III. RELEVANT STATE PROCEDURAL HISTORY

A. Trial Court Proceedings

1. Indictment

On February 2, 2012, a Lorain County, Ohio grand jury issued an indictment charging Tucker as follows:

Count

Charge

Ohio Rev. Code

Offense Date

Trafficking in Drugs - F1

29.25.03(A)(2)

9/27/11

Possession of Drugs - F1

2925.11(A)

9/27/11

Having Weapons While Under Disability - F3

2923.13(A)(2)

9/27/11

Having Weapons While Under Disability - F3

2923.13(A)(3)

9/27/11

Trafficking in Drugs - F4

2925.03(A)(1)

9/22/11

Possessing Criminal Tools - F5

2923.24(A)

9/27/11

Trafficking in Drugs - F5

2925.03(A)(1)

9/21/11

Trafficking in Drugs - F5

2925.03(A)(1)

9/26/11

Drug Paraphernalia Offenses - M4

2925.14(C)(1)

9/27/11

(ECF Doc. 14-1, PageID#157-60).

2. Pretrial Proceedings

The trial court appointed legal counsel to assist Tucker in the criminal proceedings. (ECF Doc. 14-1, PageID#161). When Tucker later requested different legal representation, the trial court appointed Tucker new legal counsel. (ECF Doc. 14-1, PageID#162). Yet before his trial, Tucker indicated that he wished to proceed pro se. (ECF Doc. 14-1, PageID#163). By journal entry filed on November 29, 2019, the trial judge indicated that the trial court offered to appoint legal counsel to assist him, which Tucker refused. (ECF Doc. 14-1, PageID#163). The trial court engaged in a colloquy with Tucker to ensure that his decision to waive counsel was made knowingly, intelligently, and voluntarily. (ECF Doc. 14-1, PageID#163; ECF Doc. 14-2, PageID#612-622). The judge asked Tucker questions regarding his understanding of the charges he faced in trial and informed him of the risk of proceeding pro se. (ECF Doc. 14-1, PageID#615-16). When asked again whether he wanted to proceed pro se, Tucker indicated that he did not desire to have his appointed counsel represent him. (ECF Doc. 14-1, PageID#622). The court offered to have the attorney present to give Tucker advice and assist him in his own representation, but Tucker refused.

(ECF Doc. 14-1, PageID#622). The trial court subsequently granted Tucker's request to represent himself. (ECF Doc. 14-1, PageID#163).

3. Trial and Sentencing

The case proceeded to jury trial on November 27, 2012 with Tucker appearing pro se. (ECF Doc. 14-1, Page ID#163). On November 29, 2012, the jury found Tucker guilty on all counts. (ECF Doc. 14-1, Page ID#166-67). The trial court informed Tucker of his 30-day appeal period and advised him of the opportunity to have appellate counsel appointed by the court, which Tucker refused. (ECF Doc. 14-1, PageID#167). On the same day, the trial court imposed the following prison terms: Count 1 - 8 years; Count 2 - merged with Count 1; Count 3 - 24 months; Count 4 -merged with Count Three; Count 5 - 14 months; Count 6 - 10 months; Count 7 - 8 months; Count 8 - 8 months; and Count 9 - merged with Count 6. (ECF Doc. 14-1, PageID#179). The aggregate sentence was 13 years and 4 months. (See ECF Doc. 14-1, PageID#179). The trial court further ordered Tucker to serve his prison sentences consecutively to prison sentences that he received in Lorain County Common Pleas Court Case No. 10CR081026. (ECF Doc. 14-1, Page ID#179). Together with his kidnapping case, Tucker's consecutive sentence was 38 years.

B. Direct Appeal

Tucker, through appellate counsel, timely filed a notice of appeal in the Ohio Courts of Appeals for the Ninth District on January 10, 2013. (ECF Doc. 14-1, PageID#188). The state appellate court later granted Tucker leave to appeal the trial court's November 20, 2012 sentencing entry and December 11, 2012 amended sentencing entry^[2] in the Ohio Court of Appeals for the Ninth District. (ECF Doc. 14-1, PageID#189).

Tucker's appellate counsel filed an Anders brief that alleged that appellate counsel was unable to identify any appealable issues or any possible appealable issues for Tucker to pursue pro se. (ECF Doc. 14-1, PageID#190). The Ohio Court of Appeals determined that appellate counsel's brief did not comply with Anders, struck the brief from the record, and ordered Tucker's appellate counsel to file a proper Anders brief or merits brief. (ECF Doc. 14-1, PageID#206).

Tucker's appellate counsel filed a motion to withdraw from representation (ECF Doc 14 1, PageID#207) and another Anders brief that identified the following possible appealable issues:

1. Appellant's conviction is against the sufficiency of the evidence and should be reversed because it violates the Fifth, Sixth, and Fourteenth Amendment to the United States Constitution, and Article I, Section 10 of the Constitution of the State of Ohio.

2. The guilty verdict in this case is against the manifest weight of the evidence and should be reversed because it violates the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Constitution of the State of Ohio.

(ECF Doc. 14-1, PageID#209-20). On December 9, 2013, the Ohio Court of Appeals notified Tucker that he could file a pro se brief within 20 days, which Tucker failed to file. (ECF Doc. 14 1, PageID#221). The State filed a brief in response to appellate counsel's Anders's brief. (ECF Doc. 14-1, PageID#222-40).

Upon independent review, the Ohio Court Appeals determined that there was an arguable issue to whether Tucker knowingly and intelligently waived his right to counsel and appointed Tucker new legal counsel for his appeal. (ECF Doc. 14-1, PageID#241). Tucker's new appellate counsel raised the following assignments of error on direct appeal:

1. Kareem Tucker's waiver of counsel was not knowing and intelligent when he did not understand the fundamental nature of the proceedings against him, in violation of his right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution. Tr. 63-71, Crim.R.44, Faretta v California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581 (1975), Tr. 63-71. 2. Kareem Tucker was erroneously permitted to stand trial when the record reflected that Tucker did not understand the proceedings against him and lacked the capacity to consult with his lawyer with a rational degree of understanding, in violation of his right to due process under the Fourteenth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824 (1960), R.C. 2945.37(B), Tr. 63-71

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