Zeune v. Warden

• Decision Date: 12 May 2016
• Docket Number: CASE NO. 2:14-cv-1459
• Parties: RODNEY D. ZEUNE, Petitioner, v. WARDEN, FRANKLIN MEDICAL CENTER, Respondent.
• Court: U.S. District Court — Southern District of Ohio

RODNEY D. ZEUNE, Petitioner, v. WARDEN, FRANKLIN MEDICAL CENTER, Respondent.

CASE NO. 2:14-cv-1459

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

May 12, 2016

JUDGE ALGENON L. MARBLEY

Magistrate Judge Kemp

REPORT AND RECOMMENDATION

Petitioner, formerly a state prisoner, filed this habeas corpus action pursuant to 28 U.S.C. §2254, challenging a conviction entered in the Franklin County Court of Common Pleas. On April 17, 2015, this Court denied Respondent's motion to dismiss and granted Petitioner leave to file an amended petition, which was filed that day. The case is now before the Court by way of that petition (Doc. 13), the Return of Writ (Doc. 14), Petitioner's reply (Doc. 16), Petitioner's motion for an evidentiary hearing, and the exhibits attached to Respondent's motion to dismiss (Doc. 8). For the following reasons, it will be recommended that the motion for an evidentiary hearing be denied and that this case be DISMISSED.

I. Procedural History

On August 18, 2009, the Franklin County, Ohio grand jury indicted Petitioner on one count of trafficking in cocaine. (Doc. 8, Ex. 2). He stood trial before a jury, and on October 22, 2010, the jury convicted him. He was then sentenced to four years in prison and was ordered to pay a fine and financial sanction totaling $6,000.00. He was also ordered to serve up to three years of post-release control. (Ex. 5).

Through counsel, Petitioner timely appealed his conviction to the Tenth District Court of Appeals. His appellate brief raised four assignments of error:

FIRST ASSIGNMENT OF ERROR: Rodney Zeune was deprived of his constitutional rights to the effective assistance of counsel.

SECOND ASSIGNMENT OF ERROR: The trial court erred when it failed to sua sponte order a mistrial.

THIRD ASSIGNMENT OF ERROR: The trial court denied Mr. Zeune due process when it imposed a sentence punishing him for exercising his right to a jury trial.

FOURTH ASSIGNMENT OF ERROR: The trial court erred when it imposed an unlawful sentence.

(Ex. 7). He raised an additional assignment of error in his reply and supplemental brief, claiming that the jury was not properly instructed about the affirmative defense of entrapment. (Ex. 13).

The court of appeals decided the appeal on October 6, 2011. It overruled Petitioner's first, second, third, and fifth assignments of error, but remanded the case for resentencing based on the fourth assignment of error. State v. Zeune, 2011 WL 4600663 (Franklin Co. App. Oct. 6, 2011). On February 6, 2012, the trial court resentenced Petitioner to the same sentence he originally received. (Ex. 20). Petitioner again appealed, and also (acting pro se) filed a motion to vacate his sentence He did not fare as well this time; the court of appeals affirmed the re-imposed sentence and denied the motion to vacate. State v. Zeune,2012 WL 5947016 (Franklin Co. App. Nov. 27, 2012). It also denied a motion for reconsideration. (Ex. 32).

While the appellate process was ongoing, Petitioner was also pursuing relief in the trial court through a motion to vacate and set aside his conviction and sentence, filed pursuant to R.C. §2923.51. He asserted that counsel was constitutionally ineffective and that the prosecutor withheld exculpatory information in violation of Brady v. Maryland, 373 U.S. 83 (1963). His petition was denied on February 7, 2013. (Ex. 37). Petitioner appealed that decision as well, but on September 24, 2013, the court of appeals affirmed the trial court's ruling and denied another motion to vacate which Petitioner had filed. State v. Zeune, 2013 WL 5406895 (Franklin Co. App. Sept. 24, 2013). Petitioner sought review of that decision by the Ohio Supreme Court, raising all three issues addressed by the state court of appeals, but he was unsuccessful in obtaining it. State v. Zeune, 137 Ohio St.3d 1477 (Jan. 22, 2014).

Eleven days before that decision was rendered, Petitioner filed another motion to set aside his conviction and order resentencing, this time in the trial court. The trial court denied that motion as well as a subsequent motion asking for the same relief. (Ex. 60. Ex. 63). Petitioner had no better luck with a habeas corpus petition which he filed directly with the Ohio Supreme Court.

In his original habeas corpus petition, which he filed here on September 8, 2014, Petitioner asserted these grounds for relief:

Ground one: My sentence and conviction is void and/or voidable becausethe State withheld exculpatory evidence and thus violated my due process rights at trial. Fifth and fourteenth amendments to the U.S. Const. And Ohio Const.

Ground two: My conviction is void because I was denied the right to effective assistance of counsel at trial under the Sixth and Fourteenth Amendments of the United States Constitution.

Ground three: My resentencing hearing was and sentence was unlawful because I was sentenced outside the statutory guidelines of section 2929.14 of the Ohio Revised Code for a Felony of the Third Degree.

Petition, Doc. 4.

Respondent moved to dismiss the petition, arguing that ground three was unexhausted because it was never presented to the Ohio Supreme Court and Petitioner still had available to him the remedy of a delayed direct appeal. Petitioner responded by moving to amend or correct his petition to delete his third ground for relief or, alternatively, to stay the case until he had exhausted that claim. Because ground three related solely to Petitioner's sentence, and because he had been released from custody by the time Respondent's motion was filed, the Court permitted Petitioner to abandon that claim (and also denied his motion to stay this case pending exhaustion of that claim). Thus, only grounds one and two are now before the Court. Respondent contends that ground two has been procedurally defaulted in part, and that the part which was not defaulted is meritless. Respondent also argues that ground one should be denied on its merits. The Court will address Petitioner's claims in that order, first setting out the relevant facts of the case as described by the Tenth District Court of Appeals.

II. The Facts

In its October 6, 2011 Opinion, the state court of appeals stated the facts this way:

At trial, Ayman Musleh testified that he and appellant had been friends for years. He and appellant often used cocaine together and Musleh sometimes bought cocaine from appellant. In 2009, Musleh became a confidential informant for the Mt. Vernon Police Department after he was arrested on a drug possession charge. Musleh agreed to do a "controlled buy" of cocaine from defendant who was a "person of interest" in a Drug Enforcement Agency ("DEA") task-force investigation. Sometime thereafter, Musleh arranged to buy an ounce of cocaine from appellant. On March 5, 2009, after appellant changed the meeting location several times, Musleh and appellant met at a Staples office supply store and then immediately drove in Musleh's car to an apartment complex near the Columbus airport. Authorities had wired Musleh's car with a listening device so they could hear what transpired. On the way to the apartment complex, appellant called Rayshon Alexander to tell him they were on their way. Shortly after arriving at the apartment complex, Alexander approached the vehicle. Musleh gave appellant the money to buy the cocaine and then appellant gave that money to Alexander. Alexander gave the cocaine to appellant, who handed it to Musleh. Musleh and appellant then drove away.

State v. Zeune, 2011 WL 4600663, *1.

Some additional facts appear in the September 24, 2013 Opinion. For example, the court of appeals added this to the above description of the crime itself: "On the way back to appellant's vehicle, appellant snorted some of the cocaine. Musleh's car had been wired by police investigators so they could listen to what transpired." State v. Zeune, 2013 WL 5406895, *1. The court also noted that "[d]uring the trial, it was disclosed that police had certain tape recordings of telephone calls from Musleh to appellant, including those in which they set up the drug deal, which were not turned over to appellant and his trial counsel during discovery." Id. Also pertinent are these findings made by the trial court,quoted at id., *5:

Here, [appellant] had previously used cocaine with Musleh. [Appellant] knew the source of the cocaine. [Appellant] directed Musleh to several locations before finally taking him to his source of the drug. [Appellant] "snorted" cocaine during the return trip following the purchase. [Appellant] had sold cocaine to Musleh on previous occasions. There is no evidence that [appellant] was reluctant to arrange the sale of cocaine. The audio recording of the conversation between [appellant] and Musleh while in Musleh's car showed [appellant's] knowledge of cocaine trafficking. Thus, even if there were evidence that the recordings of telephone conversations between Musleh and [appellant] actually contained a promise by Musleh to repay money [appellant] now claims was owed to him, the totality of the evidence shows no "reasonable probability" that the result of the trial would be different.

III. Procedural Default

The term "procedural default" has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. Procedural default can be a fairly complicated doctrine, involving a number of court-made rules and exceptions, but the basic premise is simple and is reflected in the language Congress has used in 28 U.S.C. §2254.

Under §2254, a federal court may grant relief to a state prisoner only if that person is being held in custody in violation of the Constitution or law of the United States - that is, that the prisoner's conviction or sentence was unlawful under...