Veliev v. Warden

• Decision Date: 02 July 2014
• Docket Number: Case No. 2:12-cv-346
• Parties: Eldar Z. Veliev, Petitioner, v. Warden, Chillicothe Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

Eldar Z. Veliev, Petitioner, v. Warden, Chillicothe Correctional Institution, Respondent.

Case No. 2:12-cv-346

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: July 2, 2014

JUDGE MICHAEL H. WATSON

Magistrate Judge Kemp

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This matter is before the Court on that petition, respondent's return of writ, and the exhibits attached to the return. Also before the Court is a motion for leave to amend the petition. For the reasons that follow, the Magistrate Judge RECOMMENDS that the motion for leave to amend be DENIED and petitioner's claims be DISMISSED.

I. PROCEDURAL HISTORY

On July 11, 2008, a Franklin County, Ohio grand jury returned a two-count indictment against petitioner and his co-defendant charging felonious assault and attempted murder. Motion to Dismiss (Doc. 10), Exhibits 1 and 2. Petitioner pleaded not guilty and was tried by a jury jointly with his co-defendant. Id. , Exhibits 3 - 6. On September 3, 2009, the jury convicted him of both charges. Id., Exhibits 7 - 9. On October 22, 2009, the trial judge merged petitioner's sentences and imposed a sentence of eight years on the conviction for attempted murder. Id., Exhibits 8 and 9.

Petitioner timely appealed his conviction to the Court of Appeals for the Tenth Appellate District. Motion to Dismiss, Exhibits 10 and 11. He raised seven assignments of error, as follows:

1. The trial court improperly excluded defense witnesses under Evidence Rules 404 and 608 that rebutted the State's characterizations of an alleged victims [sic] good character, thereby violating Appellant's right to present a meaningful defense as guaranteed by the Compulsory Process Clause of the Sixth Amendment, the Due Process clause of the Fourteenth Amendment to the United States Constitution, and Article I, Section 10 of the Ohio Constitution. (Tr. Trn. Vol., IV, Pg. 186-187)

2. The trial court improperly quashed Appellant's subpoena of an [sic] non-confidential criminal investigation that rebutted the State's characterizations of an alleged victims [sic] good character, thereby violating Appellant's right to present a full defense as guaranteed by the Compulsory Process Clause of the Sixth Amendment, the Due Process clause of the Fourteenth Amendment to the United States Constitution, and Article I, Section 10 of the Ohio Constitution. (Tr. Trn. Vol. I, Pg. 86)

3. The trial court improperly quashed Appellant's subpoena of an [sic] non-confidential criminal investigation that rebutted the State's characterizations of an alleged victims [sic] good character, thereby violating the Due Process clause of the Fourteenth Amendment and comparable provisions of the Ohio Constitution. (Tr. Trn. Vol. I, Pg. 86)

4. The trial court improperly limited Appellant's cross-examination and implied in the presence of the jury that Appellant should testify at trial, thereby violating Appellant's Fifth Amendment right to remain silent, Sixth Amendment right to a trial by jury and Sixth Amendment right to confront his accusers, the Due Process clause of the Fourteenth Amendment and comparable provisions of the Ohio Constitution (Tr. Trn. Vol., IV, Pg. 82)

5. The court improperly excluded evidence that rebutted Arut Koulian's assertions that his motive for leaving town was due to threats fromAmbartsoumov's family with evidence of his financial difficulty, thereby violating Appellant's right to present a meaningful defense as guaranteed by the Compulsory Process Clause of the Sixth Amendment, the Due Process clause of the Fourteenth Amendment to the United States Constitution, and Article I, Section 10 of the Ohio Constitution. (Tr. Trn. Vol. I, Pg. 225-226)6. The trial court erred in overruling Appellant's motion for a mistrial when the state elicited testimony from two Columbus Police Officers that Appellant's co-defendant did not tell them how he cut his hand and that he did not tell them he was a victim of an assault and thus commenting on his constitutional right to remain silent, thereby violating Appellant's Fifth Amendment right to remain silent, and his right to Due Process under the Fourteenth Amendment. (Tr. Trn. Vol. II, Pg.13)

7. The trial court violated Appellant's right to Due Process as Guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution by entering verdicts of Guilty, as the jury's verdict was against the manifest weight of the evidence. (Tr. Trn. Vol. V, Pg. 132)

Motion to Dismiss, Exhibits 13 and 14. In a decision dated December 23, 2010, the Tenth District Court of Appeals overruled the assignments of error and affirmed Petitioner's conviction. State v. Veliev, 2010 WL 5449848 (Franklin Co. App. December 23, 2010).

On February 2, 2011, Petitioner, represented by new counsel, filed an appeal with the Ohio Supreme Court. Motion to Dismiss, Exhibit 18. In his memorandum in support of jurisdiction, he raised eight propositions of law, as follows:

1. Appellant's right to present a defense was violated when the trial court refused to permit the defense to refute assertions by one of the State's key witnesses that he was an upstanding community leader and had never been involved in illicit activity.

2. Appellant's right to present a defense was violated when the trial court quashed Appellant's subpoena of a non-confidential criminal investigation that rebutted the State's characterizations of a witness' good character.

3. When the Appellant's subpoena of a non-confidential criminal investigation rebutting the State's characterizations of a witness' good character was quashed by the trial court it effectively denied Appellant the opportunity to prove that the Prosecution violated its disclosure duties under Crim. R.16 and Brady v. Maryland, 373 U.S. 83 (1963).

4. An accused has the right to test the reliability of witnesses through cross-examination on all relevant matters.

5. When a defendant chooses not to testify, the Fifth Amendment prohibits the trial judge from making adverse comments about the defendant's decision to not testify. Griffin v. California, 380 U.S. 609, 614-15 (1965), followed.

6. Appellant's right to present a defense was violated when the trial court refuse to permit the defendant to put on evidence concerning the State's witness' motive for fleeing the country.

7. A defendant's post arrest silence cannot be used as substantive evidence against him at trial. Miranda v. Arizona, 384 U.S. 436, 468 n. 37 (1966), followed.

8. In reviewing claims of whether a verdict is against the manifest weight of the evidence it is not relevant whether the jury is in the best position to consider inconsistencies in testimony because an appellate court sits as the thirteenth juror and may disagree with the fact-finder's resolution of the conflicting testimony. State v.Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶25 followed .

Id., Exhibit 19. On April 20, 2011, the Ohio Supreme Court dismissed the appeal as not involving any substantial constitutional question. Id., Exhibit 21.

On March 17, 2011, Petitioner filed an application to reopen his direct appeal pursuant to Appellate Rule 26(B). In his application, he alleged that his appellate counsel was ineffective for failing to raise the following assignments of error:

1. Defense counsel rendered ineffective assistance when they failed to object to the admission of evidence concerning victim Tigran Safaryan's character during the prosecution's case-in-chief where the defendant had not yet put on his case or otherwise put on any evidence concerning the victim's character in violation of defendant's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and corresponding provisions of the Ohio Constitution. (TR. Vol. 1, pp.37-41).

2. The trial court erred when it allowed victim Safaryan to testify over objection why he was "cautious" of defendant Ambartsoumov inviolation of defendant's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and corresponding provisions of the Ohio Constitution. (TR. Vol. 1, p. 71).

3. The trial court erred when it permitted Safaryan's cousin, Sabina Shvets, to testify over objection as to the reasons why Safaryan was cautious of Ambartsoumov in violation of defendant's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and corresponding provisions of the Ohio Constitution. (TR. Vol. 3, pp. 77-95).

4. The trial court erred to the prejudice of the defendants when it used the wrong standard in deciding the discoverability of materials sought by the defense under Crim. R.16(B)(1)(f) in violation of defendant's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and corresponding provisions of the Ohio Constitution. (TR. Vol. 1, pp. 100-101).

5. Defense counsel rendered ineffective assistance when they failed to object to the admission of evidence of the victim Arut Khoulian's character during the prosecution's case in chief where the defendant had not yet put on his case or otherwise put on any evidence concerning the victim's character in violation of defendant's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and corresponding provisions of the Ohio Constitution. (TR. Vol. 1, pp.119-122).

6. Defense counsel rendered ineffective assistance when they failed to cross-examine Tigran Safaryan about inconsistent statements he made to medical personnel concerning how the confrontation started that resulted in his wound in violation of defendant's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and corresponding provisions of the Ohio Constitution. (TR. Vol. 1, pp.105-113).

7. The trial court erred when it overruled the defense motion for a continuance to subpoena Tigran Safaryan

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