Wright v. Lazaroff
| Decision Date | 25 June 2009 |
| Docket Number | No. 1:07cv1022.,1:07cv1022. |
| Parties | Jeffrey Len WRIGHT, Petitioner, v. Alan LAZAROFF, Warden, Pickaway Correctional Institution, Respondent. |
| Court | U.S. District Court — Southern District of Ohio |
Jeffrey Len Wright, Orient, OH, pro se.
Hilda Rosenberg, Office of the Ohio Attorney General, Cincinnati, OH, for Respondent.
This matter is before the Court on the Report and Recommendation filed by the Magistrate Judge on May 15, 2009 (Doc. 46).
Proper notice has been given to the parties under 28 U.S.C. § 636(b)(1)(C), including notice that the parties would waive further appeal if they failed to file objections to the Report and Recommendation in a timely manner. See United States v. Walters, 638 F.2d 947 (6th Cir.1981). No objections to the Magistrate Judge's Report and Recommendation have been filed.
Having reviewed this matter de novo pursuant to 28 U.S.C. 636, this Court finds the Magistrate Judge's Report and Recommendation to be correct.
Accordingly, it is ORDERED that the Report and Recommendation of the Magistrate Judge is hereby ADOPTED. The Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 3) is DENIED with prejudice.
A certificate of appealability should not issue with respect to petitioner's claims for relief under the applicable two-part standard enunciated in Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and therefore DENIES petitioner leave to appeal in forma pauperis upon a showing of financial necessity. See Fed. R.App. P. 24(a); Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this case pro se seeking a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the petition (Doc. 3), respondent's return of writ and exhibits thereto (Doc. 27), and petitioner's traverse. (Doc. 41).
This case involves the following facts and proceedings before the trial court, as summarized by the Twelfth District Ohio Court of Appeals:1
{¶ 2} On December 3, 2003, appellant visited the home of Anna Cmehil, who was 89 years old. After testing Cmehil's hearing and taking impressions of her ears, the two agreed that Cmehil would purchase from appellant a hearing aid for the price of $1,500. Cmehil wrote a check, payable to appellant, in the amount of $750 as partial payment. Appellant unexpectedly returned to Cmehil's home the following day, and told her that he needed to make a new impression of her ear. Cmehil asked for a discounted purchase price, and appellant agreed to lower the price to $1,125 if Cmehil paid the balance that day. Cmehil agreed and wrote another check to appellant in the amount of $375. Cmehil never received a hearing aid from appellant, despite trying to reach him by telephone on several occasions.
{¶ 3} On December 12, 2003, appellant visited the home of Walter and Jeanne Engleman, who were 83 and 81 years old respectively. After testing Walter's hearing and taking impressions of his ears, they agreed that the Englemans would purchase from appellant hearing aids for the price of $3,000. Jeanne wrote a check to appellant for $1,000, and appellant promised to deliver the hearing aids in two weeks. Appellant returned to their home the next day, and told Walter that he needed more money for the deposit on the order. Walter gave him an additional $50 in cash. A few days later, Jeanne asked appellant for a refund, completed and sent to appellant a written cancellation of the contract, and called him to tell him she was canceling the contract. The Englemans did not receive the hearing aids or a refund.
{¶ 4} On December 15, 2003, appellant visited the home of Nellie McQueary, who was 90 years old. After testing McQueary's hearing and taking an impression of her ear, the two agreed that McQueary would purchase from appellant a hearing aid for the price of $1,500. McQueary wrote appellant a check for $100. The next day, McQueary attempted to reach appellant by telephone so that she could cancel the order. However, McQueary never heard from appellant, and did not receive a hearing aid or a refund.
{¶ 5} On December 23, 2003, appellant visited the home of Leroy Turner, who was 88 years old. After testing Turner's hearing and taking impressions of his ears, the two agreed that Turner would purchase from appellant hearing aids for the price of $4,000. Turner wrote appellant a check for $2,000, but three days later told appellant he wanted to cancel the contract. Appellant agreed to lower the purchase price to $3,000 if Turner paid the balance of the purchase price that day. Turner agreed, and wrote appellant a check for $1,000. On December 29, 2003 appellant returned to Turner's home and asked Turner for an additional $900. Turner eventually wrote appellant a check for $300, and appellant promised Turner that he would supply him with hearing aid batteries and that he would deliver the hearing aids the following day. However, Turner never received the hearing aids or a refund.
{¶ 6} On January 14, 2004, a grand jury indicted appellant on eight counts of theft from an elderly person in violation of R.C. 2913.02(A)(3) and (B)(3) ("Indictment No. 04CR0022").2 On May 19, 2004, a grand jury indicted appellant on four counts of engaging in hearing aid business without license in violation of R.C. 4747.02 ("Indictment No. 04CR00391"). The parties agreed to consolidate the two cases for purposes of trial. After a bench trial, the trial court found appellant guilty on seven of the eight theft counts in Indictment No. 04CR0022 and all four counts in Indictment No. 04CR00391. The trial court sentenced appellant to 12 months for counts 1, 2, 5, and 7 and 11 months for counts 3, 6, and 8 of Indictment No. 04CR0022, with all sentences to be served consecutively. The court sentenced appellant to 90 days for each count of Indictment No. 04CR00391, with the sentences to be served concurrently with the sentences for the theft offenses....
State v. Wright, No. CA2004-08-061, 2005 WL 1799296, at *1-2 (Ohio App. 12th Dist. Aug. 1, 2005). See also Doc. 27, Exhs. 1, 3, 4, 5, 8, 9, 10, 11.
Petitioner, through new counsel, filed a notice of appeal in the Twelfth District Court of Appeals and raised the following assignments of error in his merits brief:
1. The trial court erred to the prejudice of defendant-appellant in failing to dismiss the felony cases against him, on the basis that the State had failed to bring the appellant to trial within speedy trial time limits.
2. The trial court erred to the prejudice of defendant-appellant in the excessive sentence that was ordered.
3. The trial court erred to the prejudice of defendant-appellant in failing to recognize that the state was required to pursue remedies against the appellant in accordance with RC 4747.02, et. seq.
(Doc. 27, Exh. 12). The State filed a response. (Doc. 27, Exh. 13). On August 1, 2005, the Court of Appeals affirmed the judgment of the trial court overruling each of petitioner's assignments of error. (Doc. 27, Exh. 14, Case No. C-060318).
On August 15, 2005, petitioner filed a pro se motion for reconsideration pursuant to Ohio App. Rule 26(A). (Doc. 27, Exh. 15). Although initially denying the application as untimely, the Ohio Court of Appeals later reconsidered and denied petitioner's motion on the merits. (Doc. 27, Exhs. 16, 17, 18).
Petitioner, through new counsel, filed a timely notice of appeal in the Ohio Supreme Court. (Doc. 27, Exh. 19). Petitioner raised the following proposition of law in his memorandum in support of jurisdiction:
1. The trial court does not have the authority to impose non-minimum, consecutive prison terms on a person convicted of fourth- and fifth-degree felonies in the absence of a finding beyond a reasonable doubt of the factors in R.C. 2929.13(B)(2), 2929.14(E)(4).
(Doc. 27, Exh. 20). The State filed a response. (Doc. 27, Exh. 21). On December 28, 2005, the Ohio Supreme Court stayed the appeal pending decisions in (Doc. 27, Exh. 22). On May 3, 2006, the Ohio Supreme Court reversed the judgment of the Ohio Court of Appeals and remanded petitioner's case for resentencing consistent with State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006). (Doc. 27, Exh. 23).
Petitioner filed a pro se application to reopen the direct appeal on the basis of ineffective assistance of appellate counsel under Ohio Appellate Rule 26(B) raising the following assignments of error:
1. The Appellant was denied the effective assistance of appellate counsel when appellate counsel failed to challenge and argue the appellant's denial to a complete record on appeal.
2. Appellant was denied the effective assistance of appellate counsel when appellate counsel failed to raise the significant and obvious issue of sufficiency of the evidence and weight of the evidence as issues for review on appeal.
3. The Appellant was denied the effective assistance of counsel when his appellate counsel failed to assign as error the violations of consecutive sentencing under R.C. 2929.14 through the mandates of R.C. 2953.08 to the substantial prejudice of the appellant in violation of his Fourteenth Amendment rights to Due Process under the United States...
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