Wilson v. Warden, Pickaway Corr. Inst.
| Decision Date | 01 June 2021 |
| Docket Number | CASE NO. 2:20-CV-1913 |
| Parties | F. LEON WILSON, Petitioner, v. WARDEN, PICKAWAY CORRECTIONAL INSTITUTION, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION AND ORDER
On January 8, 2021, the Magistrate Judge issued a Report and Recommendation recommending that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed. (ECF No. 22.) Petitioner has filed an Objection to the Magistrate Judge's Report and Recommendation. (ECF No. 25.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner's Objection (ECF No. 25) is OVERRULED. The Report and Recommendation (ECF No. 22) is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
The Court DECLINES to issue a certificate of appealability.
In July 2015, the Delaware County grand jury indicted Petitioner on three counts of gross sexual imposition with school safety zone specifications on charges that took place during his time as a chess coach for children, ages four and seven years old. Petitioner's first trial resulted in a mistrial. A jury convicted Petitioner after a second jury trial on two counts of gross sexual imposition. On August 2, 2016, the trial court sentenced Petitioner to an aggregate term of eight and one-half years in prison. The state appellate court affirmed that judgment, and the Ohio Supreme Court declined to accept jurisdiction of the appeal. Petitioner unsuccessfully pursued other state collateral relief, as outlined in the Report and Recommendation. (ECF No. 22, PAGEID # 2849-52.) Petitioner asserts that he was denied the effective assistance of trial and appellate counsel (claims one and two); that his re-trial on the charge of gross sexual imposition relating to K.P. violated the Double Jeopardy Clause (claim three); and that the admission and playback of E.C.'s recorded forensic interview violated the Double Jeopardy Clause (claim four). The Magistrate Judge recommended dismissal of these claims as procedurally defaulted or without merit. Petitioner objects to those recommendations.
Petitioner objects to the recommendation of dismissal of his claims of ineffective assistance of trial counsel as procedural defaulted.1 At length, he again raises all of the same arguments he previously presented. Petitioner maintains that the state appellate court adjudicated the merits of sub-claims one and two (trial counsel's failure to request a jury poll in the first trial or inquire as to the verdict on Count 3, the GSI charge relating to K.P., and failure to file a motion to dismiss Count 3 on double jeopardy grounds); that he presented sub-claim twelve (trial counsel's failure to retain a DNA expert) in the Ohio Supreme Court; that he preserved for federal habeas review other on-the-record claims in post-conviction proceedings; and that review of his claims is warranted because of circular reasoning and misapplication of res judicata, and the state courts' dismissal of his claims without an evidentiary hearing or consideration of the impact of cumulative error. Referring to Patterson v. Haskins, 316 F.3d 596 (6th Cir. 2003), Petitioner argues that the appellate court's plain error review of his Confrontation Clause claim did not result in a procedural default. He again asserts the denial ofthe effective assistance of appellate counsel as cause for any procedural default. Petitioner also again argues that he has presented meritorious claims for relief. He complains that the Magistrate Judge misapplied the language of 28 U.S.C. § 2254(d) in recommending dismissal of his claim that his re-trial violated the Double Jeopardy Clause based on juror affidavits and in violation of United States v. Ball, 163 U.S. 662, 671 (1896) () (citation omitted).
Upon review of the record and for the reasons detailed by the Magistrate Judge, this Court is not persuaded by Petitioner's arguments. The record does not indicate that Petitioner properly preserved his various claims of ineffective assistance of trial counsel for review in these proceedings. Likewise, the record does not indicate that the state appellate court adjudicated his claims on the merits or improperly applied barred review of his claims under the doctrine res judicata so as to permit consideration of his procedurally defaulted claims here. In Ohio, on-the-record claims - that is, claims that fairly may be determined without resort to evidence outside of the record - must be raised on direct appeal where, as here, the defendant has new counsel on appeal. The failure to raise claims that are readily apparent from the face of the record on direct appeal results in a procedural default. See Monzo v. Edwards, 281 F.3d 568, 576-77 (6th Cir. 2002) (citing State v. Perry, 10 Ohio St.2d 175 (1967); State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169, 170 (1982)). This rule applies regardless of whether a petitioner's claim of ineffective assistance may be bolstered by evidence about defense counsel's strategic choices. The record does not reflect that Petitioner can establish cause for his procedural defaults. No evidentiary hearing is required to resolve Petitioner's claims. Further, the Sixth Circuit repeatedly has held that claims of cumulative error are not cognizable in habeas corpus proceedings. See Billenstein v. Warden, Warren Corr. Inst., No. 3:15CV1097, 2016 WL4547413, at *8 (N.D. Ohio July 8, 2016), report and recommendation adopted sub nom. Billenstein v. Warden, No. 3:15CV01097, 2016 WL 4543160 (N.D. Ohio Aug. 31, 2016) (citing Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006); Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005); Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir. 2011)).
Petitioner complains that the Court did not address his claim of ineffective assistance of appellate counsel based on his attorney's failure to challenge Count 3 of the Indictment as defective for failing to identify the county where the alleged offense took place. (Objection, ECF No. 25, PAGEID # 2919). He appears to have raised this same issue in the Ohio Supreme Court. (See Memorandum in Support of Jurisdiction, ECF No. 7-1, PAGEID # 839.) Petitioner further argues that this Court should conduct a de novo review, because the appellate court improperly rejected the claim based on venue (Objection, ECF No. 25, PAGEID # 2919-20), as follows:
[A]ppellant alleges the indictment failed to state that the offense in Count 3 occurred in Franklin County. Count 3 alleged "during the period of February 19, 2015 through April 9, 2015 in Delaware County, Ohio, or by some manner enumerated in Section 2901.12 of the Ohio Revised Code whereby proper venue is placed in Delaware County, Ohio * * *." In denying appellant's motion to dismiss Count 3, the trial court found the allegations constituted a continuing course of conduct under R.C. 2901.12(H). We find the offenses were properly venued in Delaware County as part of a continuing course of criminal conduct. State v. Castor, 5th Dist. Delaware No. 14 CAA 01 0004, 2014-Ohio-5236. We do not find any evidence of prejudice regarding this issue.
(Judgment Entry, ECF No. 7-1, PAGEID # 831.) However, the record indicates that the appellate court considered, and rejected, the same argument Petitioner raised in his Rule 26(B) application. Moreover, his claim plainly lacks merit. The Indictment and charge in Count 3 complied with Ohio law in identifying Delaware County as the location of the offense charged. Petitioner therefore has failed to establish a claim under Strickland v. Washington, 466 U.S. 669 (1984). based on appellate counsel's failure to raise the issue on appeal.
Due to an error in the numbering of Petitioner's various sub-claims of ineffective assistance of counsel as set forth in the Petition, it appears that the Court did not address Petitioner's claim of ineffective assistance of trial counsel now identified as sub-claim eleven, i.e., counsel's failure to "[c]all a witness who would have contradicted the State's claim that Petitioner isolated K.P. for purposes of having sexual contact with her[.]" (See Objection, ECF No. 25, PAGEID # 2885.) However, Petitioner has procedurally defaulted this claim for relief by failing to present it to the Ohio Court of Appeals or the Ohio Supreme Court. (See ECF No. 7-1, PAGEID # 576; 725.)
Petitioner's reference to Patterson, 316 F.3d at 596, does not assist him. In Patterson, the Sixth Circuit held that the state appellate court had conducted a merits review in Rule 26(B) proceedings on a claim involving allegedly improper jury instructions that had not been objected to at trial, when it found that the jury instructions provided a "sufficiently detailed and a correct statement of Ohio law" and stated that the trial court committed no "error, plain or otherwise in giving of the jury instructions." Patterson, 316 F.3d at 605. "The Ohio Court of Appeals, in denying Patterson's application to reopen his appeal, did not 'clearly and expressly state[ ] that its judgment rests on a state procedural bar.'" Id. (citing Harris v. Reed, 489 U.S. 255, 263 (1989) (citation and internal quotation marks omitted)). Notably, however, in Patterson, "the Ohio Court of Appeals made no mention of...
To continue reading
Request your trial