Van Le v. Beightler

• Citation: 699 F.Supp.2d 929
• Decision Date: 14 December 2009
• Docket Number: Case No. 1:08 CV 2155.
• Parties: VAN LE, Plaintiff,v.Maggie BEIGHTLER, Defendant.
• Court: U.S. District Court — Northern District of Ohio

699 F.Supp.2d 929

VAN LE, Plaintiff,v.Maggie BEIGHTLER, Defendant.

Case No. 1:08 CV 2155.

United States District Court,

N.D. Ohio,

Western Division.

Dec. 14, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Katherine A. Szudy, Office of the Public Defender, Columbus, OH, for Plaintiff.

Maggie Beightler, Marion, OH, pro se.

William H. Lamb, Office of the Attorney General, Cincinnati, OH, for Defendant.

MEMORANDUM OPINION

KATZ, District Judge.

This matter is before the Court on Petitioner Van Le's objections (Doc. 10) to the September 9, 2009, Report and Recommendation (“R & R”) of the United States Magistrate Judge (Doc. 9), recommending that the Court deny the petition for a writ of habeas corpus. In accordance with United States v. Curtis, 237 F.3d 598, 603 (6th Cir.2001) and 28 U.S.C. § 636(b)(1)(B) & (C), this Court has made a de novo determination of the Magistrate Judge's findings to which the Plaintiff objects. For the following reasons, the Court finds Plaintiff's objections are not well taken and the same are denied.

I. Background

The Court hereby adopts the Magistrate Judge's description of the factual and procedural background of this case, as Le does not contest this portion of the R & R:

I. Facts

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 House v. Bell, 283 F.3d 37 [738] (6th Cir.2002). The state appellate court summarized the facts underlying Le's conviction as follows:

{¶ 2} On November 16, 2003, Mr. Le drove his vehicle to a store located at 6402 Lorain Avenue in Cleveland, Ohio, which was owned and operated by victim Srey Trinh. While in the parking lot, Mr. Le opened the hood of Trinh's vehicle and removed the spark plugs. Mr. Le then entered the store and approached the counter with a CD in his hand. When Trinh turned away from Mr. Le, he attacked

her with a pipe, beating her repeatedly for approximately five minutes. During the beating, Mr. Le asked Trinh if she wanted to die. Mr. Le then removed $160.00 from the cash register and fled the store. Store surveillance captured the attack on video.

{¶ 3} Trinh managed to get herself to a neighboring bar where witnesses called 911. One witness ran after Mr. Le and documented his license plate number as he drove off. Trinh was transported to Metro Hospital where hospital staff treated her for serious injuries to her head, arms, and hands. The victim spent five days at Metro and then spent an additional five days in a rehabilitation facility/nursing home. At the time of this appeal, Trinh still suffered from physical and mental trauma.

(Doc. No. 7-3, Exh. 6, ¶¶ 2-3.)

II. Procedural History

A. Conviction

On December 24, 2003, a Cuyahoga County Grand Jury indicted Le on one count of aggravated robbery, two counts of felonious assault, one count of kidnapping, one count of resisting arrest, and one count of attempted aggravated murder. (Resp. Exh. 1.)

On February 27, 2004, Le entered a plea of guilty to aggravated robbery and one of the two felonious assault charges. (Resp. Exh. 2.) The state nolled the remaining counts. Id. On March 10, 2004, Le was sentenced to ten years for aggravated robbery and eight years for felonious assault. The prison terms were ordered to be served consecutively, for an aggregate sentence of eighteen years. (Resp. Exh. 3.)

B. Direct Appeal

Le, through counsel, filed a timely Notice of Appeal with the Court of Appeals for the Eighth District (“state appellate court”) raising the following assignments of error:

1. The trial court committed prejudicial error in violation of R.C. 2929.14 by imposing maximum, consecutive sentences.

2. The record does not clearly and convincingly support the court's conclusion that the maximum consecutive sentence imposed in this case is consistent with sentences imposed in similar cases with similar offender [sic] in contravention of R.C. 2929.11(B) and State v. Comer (2003), 99 Ohio St.3d 463 .

3. Appellant's sentence was imposed in violation of the Fifth, Sixth and Fourteenth amendments to the United States Constitution and Blakely v. Washington (2004) , 124 S.Ct. 2531 , since appellant's maximum, consecutive sentence was based on judicial finding, as opposed to jury finding and/or stipulations.

4. Appellant's trial counsel was ineffective and/or the trial court committed plain error in failing to recognize appellant's defense of voluntary intoxication.

(Resp. Exh. 4.) On March 14, 2005, the state appellate court affirmed Le's conviction. (Resp. Exh. 6.)

On April 22, 2005, Le, through counsel, filed a Notice of Appeal to the Ohio Supreme Court raising a single proposition of law:

A trial court that imposes a sentence by using factors which are not found by a jury or admitted by the defendant violates the defendant's rights to due process and a jury trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

(Resp. Exh. 7.) The Ohio Supreme Court accepted the appeal sua sponte. (Resp. Exh. 9.) On May 3, 2006, the case was reversed and remanded to the trial court for resentencing consistent with State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006). (Resp. Exh. 10.)

C. Resentencing

On August 28, 2006, Le, represented by different counsel, was resentenced in the Cuyahoga County Common Pleas Court to the same term of incarceration as originally imposed. (Resp. Exh. 11.)

Le, through counsel, filed a timely Notice of Appeal in the Eighth District Court of Appeals, Cuyahoga County, Ohio raising two assignments of error:

1. The trial court erred by imposing non-minimum, maximum, and consecutive sentences in violation of the Due Process and Ex Post Facto clauses of the United States Constitution, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; Blakely v. Washington (2004), 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]; United States v. Booker (2005), 543 U.S. 220 [125 S.Ct. 738, 160 L.Ed.2d 621].

2. The trial court did not have the authority to impose consecutive sentences.

(Resp. Exh. 12.) On August 20, 2007, the sentence was affirmed. (Resp. Exh. 15.)

Le, through counsel, filed a timely appeal to the Ohio Supreme Court, raising two propositions of law:

I. The remedy that this Court set forth in State v. Foster, 109 Ohio St.3d 1 , 2006-Ohio-856 violates the Ex Post Facto and Due Process Clauses of the United States Constitution.

II. Trial courts do not have the authority to impose consecutive sentences.

(Resp. Exh. 16.) On December 26, 2007, 116 Ohio St.3d 1457, 878 N.E.2d 34 (2007), the appeal was dismissed “as not involving any substantial constitutional question.” (Resp. Exh. 17.)

D. Federal Habeas Petition

Le, through counsel, filed a timely Petition for Writ of Habeas Corpus asserting the following ground for relief:

Ground One: The remedy that the Ohio Supreme Court set forth in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (Ohio Sup.Ct.2006) violates the Ex Post Facto and Due Process Clauses of the United States Constitution.

Supporting Facts, in pertinent part:

In accordance with its decision in State v. Foster, the Ohio Supreme Court reversed and remanded Mr. Le's case for resentencing. But on November 16, 2003, the date on which the offenses occurred in this case, the factual findings mandated by Ohio Rev.Code Ann. § 2929.14(B); R.C. 2929.14(C); and R.C. 2929.14(E) (2003) were required to be made at a sentencing hearing and in a journal entry of conviction. As such, during Mr. Le's resentencing hearing, the trial court was required to sentence him under the Senate Bill 2 provisions that were in effect at the time of his purported crimes. Any sentence that included non-minimum, maximum, or consecutive prison terms-but omitted the findings required by Ohio Rev.Code Ann. § 2929.14(B); R.C. 2929.14(C); or R.C. 2929.14(E)(4) (2003)-violated the Ex Post Facto and Due Process Clauses of the United States Constitution.

(Doc. No. 1, pp. 14, 16.)

The Magistrate recommended denying the writ. This Court conducts a de novo review of the Magistrate's R & R. 28 U.S.C. § 636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir.2001).

II. Standard of Review

The standards set forth in Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”), 28 U.S.C. § 2254(d), govern a federal district court's review of a state court decision on a writ of habeas corpus. French v. Jones, 332 F.3d 430, 435-436 (6th Cir.2003). The statute establishes two circumstances in which a federal court may issue a writ. First, a federal court may issue a writ if the state court's decision “was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.” § 2254(d)(1). Second, a federal court may issue a writ if the state court's decision was based on an unreasonable determination of the facts in light of the evidence. § 2254(d)(2).

A state court's decision is “contrary to” the clearly established federal law when either the decision contradicts the Supreme Court's holdings or it “ ‘confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from this precedent.’ ” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir.2007) (quoting Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam)). A state court's decision unreasonably applies Supreme Court holdings “if the state court identifies the correct governing legal principle from the Supreme Court but unreasonably applies that principle to the facts of petitioner's case.” Id. (quoting Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (internal quotation marks omitted)).

“[A] determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner, however, may...