White v. Warden, Pickaway Corr. Inst.

• Decision Date: 20 May 2020
• Docket Number: Case No. 1:19-cv-215
• Parties: SILVON X. WHITE, Petitioner, v. WARDEN, Pickaway Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

SILVON X. WHITE, Petitioner, v. WARDEN, Pickaway Correctional Institution, Respondent.

Case No. 1:19-cv-215

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

May 20, 2020

District Judge Timothy S. Black

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner White under 28 U.S.C. § 2254, is before the Court for decision on the merits on the Petition (ECF No. 3), the State Court Record (ECF No. 9 & 10), the Return of Writ (ECF No. 11), and Petitioner's Reply (ECF No. 16). The Magistrate Judge reference in this case was recently transferred to the undersigned to help balance the Magistrate Judge workload in the Southern District of Ohio (ECF No. 18).

Litigation History

On August 6, 2015, White was indicted by the Scioto County grand jury on one count of possession of heroin in violation of Ohio Revised Code §§ 2925.11(A) and 2925.11(C)(6)(e)), one count of trafficking in heroin in violation of Ohio Revised Code §§ 2925.03(A)(2) and 2925.03(C)(6)(f)), and one count of tampering with evidence in violation of Ohio Revised Code §§ 2921.12(A)(1) and 2921.12(B)). (Indictment, ECF No. 10, Exhibit 1). A trial jury convicted him on the heroin charges, but acquitted him on evidence tampering. The trial judge then merged the two heroin charges under Ohio Revised Code § 2941.25 and sentenced White to a mandatory term of six years imprisonment. Id. at Exhibit 3.

White appealed, asserting both that the evidence was insufficient to convict and that the conviction was against the manifest weight of the evidence. The Court of Appeals affirmed. State v. White, 2017-Ohio-8087 (Ohio App. 4^th Dist. Sept. 25, 2017), appellate jurisdiction declined, 152 Ohio St. 3d 1423 (2018).

On January 22, 2018, White filed an application to reopen his direct appeal under Ohio R. App. P. 26(B), raising four claims of ineffective assistance of appellate counsel (State Court Record, ECF No. 10, Ex. 13). The Fourth District found that White's filing was nearly a month beyond the ninety-day deadline and he had offered no good cause to excuse the late filing. State v. White, Case No. 16CA3747 (Ohio App. 4^th Dist. May 16, 2018)(unreported; copy at State Court Record, ECF No. 10, Ex. 14), appellate jurisdiction declined, 153 Ohio St. 3d 1485 (2018). The court denied the application to reopen because it was untimely and also because White had failed to establish a genuine issue as to whether he had received ineffective assistance of appellate counsel. Id., particularly PageID 472-73.

White then filed his Petition in this Court, pleading five grounds for relief:

Ground One: The evidence was insufficient as a matter of law to convict appellant of trafficking in heroin; or, in the alternative, the convictions were against the manifest weight of evidence.

Supporting Facts: The petitioner was convicted of Trafficking in Heroin on the theory of "constructively possession" of Heroin. The evidence presented never actually showed the petitioner possessing the drug. Nor could it been proven that the actual substance weighed more than ten grams or less than fifty grams as charged in the indictment. The petitioner was not found guilty of count one then itis clear that the petitioner could not be guilty of count two. (sic)

Ground Two: Appellant was denied the effective assistance of appellate counsel for appellate counsel failed to fully raise and brief trial counsel ineffectiveness as to the trial court violating the appellants Sixth, and Fourteenth Amendment rights under the U.S. Constitution.

Supporting Facts: The petitioner was found guilty to be in possession of Heroin that was equal to or greater than ten grams. The submitted documents was from the pictures taken by the Ohio State Higway [sic] Patrol Officer in which did not show the actual weight of the Heroin. Therefore this conviction cannot stand.

Ground Three: Appellant was denied the effective assistance of appellate counsel for appellate counsel failed to fully raise and brief trial counsel ineffectiveness as to violating the appellant to call a witness in his behalf violating the appellants Fifth, Sixth, and Fourteenth Amendment rights under the U.S. Constitution.

Supporting Facts: Appellate counsel was ineffective for not raising the trial counsel ineefectiveness [sic] for not calling the person who performed the labortory [sic] analysis of the Heroin, for if this witness would have testified that the true actual weight more likely did not exceed ten (10) grams.

Ground Four: Appellant was denied the effectiveness assistance of appellate counsel for appellate counsel failed to fully raise and brief trial counsels ineffectiveness as to violating the appellants due process and right to effective assistance of counsel afforded to him under the U.S. Constitution.

Supporting Facts: The petitioner was found guilty of Trafficking and Possession of Heroin. But this was done under the "constructive possession" theory, more so petitioner was convicted on the evidence of another.

Ground Five: Appellant was denied the effective assistance of appellate counsel for appellate counsel failed to fully brief trial counsel ineffectiveness as to the Ohio State Highway Patrol Officer racially profiling the appellant violating the appellants Fourth, Fifth, Sixth, and Fourteenth Amendment rights under the U.S. Constitution.

Supporting Facts: This case stems from a traffic accident where the petitioner was not the driver but the Ohio State Highway PatrolOfficer still asked the petitioner for his identification. When in all actuality the patrolman just had to insure all occupants safety and if they needed medical treatment. Petitioner had no warrants and should have been released. The patrolman researched into the petitioner backround [sic] and seen [sic] that he had a prior conviction for drugs, this was done because the petitioner was from Detroit; Petitioner submits that this is a case of "Driving While Black."

(Petition, ECF No. 3.)

Analysis

Ground One: Conviction on Insufficient Evidence and Against the Manifest Weight of the Evidence

In his First Ground for Relief, Petitioner asserts he was convicted on constitutionally insufficient evidence and his conviction is against the manifest weight of the evidence.

The claim that a conviction is against the manifest weight of the evidence does not state a claim for relief under the United States Constitution. Johnson v. Havener, 534 F.2d 1232 (6^th Cir. 1986). Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). Because a conviction against the manifest weight of the evidence does not violate the federal Constitution, this Court cannot consider it.

However, an allegation that a verdict was entered upon insufficient evidence states a claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc).In order for a conviction to be constitutionally sound, every element of the crime must be proved beyond a reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt . . . . This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006); United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law which determines the elements of offenses; but once the state has adopted the elements, it must then prove each of them beyond a reasonable doubt. In re Winship, supra.

In cases such as Petitioner's challenging the sufficiency of the evidence and filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA"), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner challenges the constitutional sufficiency of the evidence used to convict him, we are thus bound by two layers of deference to groups who might view facts differently than we would. First, as in all sufficiency-of-the-evidence challenges, we must determine whether, viewing the trial testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-evaluate the credibility of witnesses, or substitute our judgment for that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th Cir. 1993). Thus, even though we might have not voted to convict a defendant had we participated in jury deliberations, we must uphold the jury verdict if any rational trier of fact could have found the defendant guilty after resolving all disputes in favor of the prosecution. Second, even were we to conclude that a rational trier of fact could not have found a petitioner guilty beyond a reasonabledoubt, on habeas review, we must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable. See 28 U.S.C. § 2254(d)(2).

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