Ursic v. Warden, Bellmont Corr. Inst.

• Decision Date: 20 August 2021
• Docket Number: 2:20-CV-5503
• Parties: BENJAMIN URSIC, Petitioner, v. WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

BENJAMIN URSIC, Petitioner, v. WARDEN, BELMONT CORRECTIONAL INSTITUTION, Respondent.

No. 2:20-CV-5503

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

August 20, 2021

EDMUND A. SARGUS, JR., JUDGE.

ORDER AND REPORT AND RECOMMENDATION

KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE.

Petitioner a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions after a jury trial in the Harrison County Court of Common Pleas on two counts of felonious assault and one count of failure to comply with the order or signal of a police officer. 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 the petition for a writ of habeas corpus be dismissed.

Petitioner's Motion for a Stay (Doc. 4) is DENIED.

I. BACKGROUND

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

{¶2} On June 4, 2017, at approximately 3:00 a.m. Appellant's neighbor, Howard Landkrohn (“Landkrohn”), called police after hearing two gun shots coming from Appellant's residence. While still on the phone with the dispatcher, Landkrohn observed Appellant drive away from his residence in his white Jeep. Landkrohn described his neighbor's Jeep to the dispatcher, including that it had a broken tail light. While en route to Appellant's residence, Harrison County Sheriff's deputies Tony Sedgmer and Ben Chaney, driving separate police vehicles, spotted a white Jeep sitting at an intersection as they approached on U.S. Route 250. A dash camera video from Deputy Chaney's police cruiser was admitted at trial and shown to the jury. The video shows that the deputies slowed as they approached the intersection and Deputy Sedgmer aimed a spotlight in the driver's side window. Being familiar with Appellant from previous interactions, he recognized Appellant as the driver. Both deputies immediately activated their lights and sirens and attempted to surround Appellant's vehicle. Appellant slowly emerged from the intersection on to U.S. Route 250. He proceeded to maneuver around the two police vehicles and quickly sped off. The video shows the damaged tail light on the Jeep as noted by Landkrohn in his 911 call. Appellant fled on Route 250 for a short time before turning on to a nearby dirt road and then cutting through a field filled with boats and vehicles to get back onto North Bay Road. The pursuit continued on North Bay Road, a residential neighborhood, for about three minutes at approximately 70 mph before the deputies radioed that they were calling off the chase to avoid a traffic accident.

{¶3} The deputies drove to Appellant's residence where Muskingum Watershed Conservancy Rangers were interviewing Appellant's girlfriend. They continued their investigation there until another call came in that a vehicle matching the description of Appellant's Jeep was sitting at the top of a hill on an old logging road in the woods with its headlights on. While this road was now used by ATVs, it was not open to vehicular traffic. Both deputies and Ranger Troy Noice drove to the logging road. They all exited their vehicles. The deputies walked ahead, periodically switching their flashlights on and off in an attempt to see where they were going but avoid detection. Ranger Noice was farther behind them but was wearing a body camera which recorded a portion of the incident. The recording was admitted at trial and played for the jury. The deputies continued walking side-by-side up the road until they could see a white Jeep facing downhill towards them with the engine running and the headlights on. As they approached within approximately 50 yards from the Jeep, Appellant was spotted inside. According to the testimony of Deputy Sedgmer at trial and as can be seen on the body camera video presented to the jury, Appellant began driving towards the deputies, revving the engine. Deputy Sedgmer ordered Appellant to stop. Appellant continued down the hill toward the deputies, forcing them to take cover behind nearby trees. Appellant continued driving downhill toward the deputies until swerving off the road and hitting the tree the deputies were hiding behind. After hitting the tree, Appellant reversed direction on the road and attempted to flee back up the hill in the opposite direction from where he had come. He eventually abandoned the vehicle and fled on foot. Appellant was apprehended later that morning by Ranger Noice as he was walking in Landkrohn's backyard.

{¶4} On December 11, 2017, Appellant was indicted by the Harrison County Grand Jury on two counts of felony assault on a police officer in violation of R.C. 2903.11(A)(2) and (D)(1)(a), felonies in the first degree; and one count of felony failure to comply with an order of a police officer in violation of R.C. 2921.331(B) and (C)(5)(a)(ii), a felony of the third degree. The matter proceeded to a jury trial on October 4, 2018. Appellant was found guilty on all counts. The trial court sentenced Appellant to four years of incarceration on each conviction for assault on a police officer and one year for failure to comply, to be served consecutively, for a total stated prison term of nine years.

{¶5} Appellant filed this timely appeal.

ASSIGNMENT OF ERROR NO. 1

CONSECUTIVE [SIC] SENTENCES WERE MANDATED AS THE APPELLANT'S CONVICTION FOR FAILURE TO COMPLY SHOULD HAVE MERGED INTO HIS CONVICTIONS OF FELONIOUS ASSAULT ON POLICE OFFICERS.

***

ASSIGNMENT OF ERROR NO. 2

THERE WAS INSUFFICIENT EVIDENCE TO FIND THE APPELLANT GUILTY OF FELONIOUS ASSAULT AND HIS CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

State v. Ursic, 7th Dist. No. 18HA0006, 2019 WL 6724550, at *1-5 (Ohio Ct. App. Dec. 9, 2019). On December 9, 2019, the appellate court affirmed the trial court's judgment. Id. On December 19, 2019, Petitioner filed a motion to certify a conflict; however, on June 1, 2020, the appellate court denied that motion. State v. Ursic, 7th Dist. No. 18HA0006, 2020 WL 3639995 (Ohio Ct. App. June 1, 2020). On July 21, 2020, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Ursic, 159 Ohio St.3d 1445 (Ohio 2020).

Petitioner also pursued state collateral relief. Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate Rule 26(B), asserting that he had been denied the effective assistance of appellate counsel because his attorney failed to raise on appeal a claim of a deficient Indictment and the denial of the right to a speedy trial. (Doc. 5, PAGEID # 230, 243). On June 29, 2020, the appellate court denied the Rule 26(B) application for failure to provide citations or references to the portions of the record and failure to present a colorable claim of ineffective assistance of counsel. (Id., PAGEID # 242). Petitioner apparently did not file an appeal.^[1] On March 6, 2020, through counsel, Petitioner filed a petition for post-conviction relief, asserting that his convictions on failure to comply and felonious assault should have been merged at sentencing; that the evidence is constitutionally insufficient to sustain his conviction on felonious assault; and that “remaining facts, dehors the record, had the[y] been presented to the jury on the initial indictment would have resulted in a not-guilty verdict.” (Id., PAGEID # 247). On June 1, 2020, Petitioner's attorney filed a motion to withdraw. (Id., PAGEID # 272). Thereafter, on June 19, 2020, Petitioner requested a stay of post-conviction proceedings pending further investigation and his attempt to find new counsel. (Id., PAGEID # 273). On June 26, 2020, the trial court granted Petitioner's request for a stay, directing him to file a motion to have the stay removed at a later date. (Id., PAGEID # 275).

On October 20, 2020, Petitioner filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2254. (Doc. 1). Petitioner asserts that his convictions on felonious assault and failure to comply with an order or signal of a police officer violate the Double Jeopardy Clause (claim one); and that the evidence is constitutionally insufficient to sustain his convictions on felonious assault (claim two). It is the Respondent's position that Petitioner's claims lack merit.

II. REQUEST FOR A STAY

Petitioner has filed a Motion to Stay proceedings pending resolution of state post-conviction proceedings. (Doc. 4). On March 6, 2020, Petitioner filed his state post-conviction petition; however, as discussed, on June 26, 2020, the trial court granted Petitioner's request for a stay to conduct further investigation and obtain new counsel. (Doc. 5, PAGEID # 246, 273, 275). The record indicates that Petitioner's state post-conviction proceedings remain stayed at his request. Petitioner now also requests a stay of this habeas corpus action to obtain new counsel and amend the petition to add unidentified new claims upon exhaustion of state post-conviction proceedings. The record, however, reflects no basis for a stay.

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner must first exhaust his claims in the state courts before presenting them in federal court. 28 U.S.C. § 2254(b); see Rockwell v Yukins, 217 F.3d 421, 423 (6th Cir. 2000). If a habeas petitioner has the right under state law to raise a claim by any available procedure, the claim is not exhausted. 28 U.S.C. § 2254(b), (c). Additionally, a constitutional claim for relief must be presented to the state's highest court in order to satisfy the exhaustion requirement. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). A habeas petitioner bears the burden of demonstrating...