Avery v. Warden, Marion Corr. Inst.

EDWARD B. AVERY, SR., Petitioner, v. WARDEN, MARION CORRECTIONAL INSTITUTION, Respondent.

Case No. 2:18-cv-387

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

January 31, 2020

Judge Michael H. Watson

Magistrate Judge Kimberly A. Jolson

REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition (Doc. 1), Respondent's Return of Writ and Supplemental Memorandum in support (Docs. 32, 45), Petitioner's Reply (Doc. 44) and the exhibits of the parties. For the reasons that follow, the undersigned RECOMMENDS that this action be DISMISSED.

I. BACKGROUND

A. State Court History

Petitioner challenges his August 4, 1997, convictions after a jury trial in the Marysville County Court of Common Pleas on charges of rape, robbery, aggravated burglary, and kidnapping with a sexual motivation specification. This case has a lengthy procedural history. The Ohio Court of Appeals summarized the facts as follows:

The facts leading to appellant's conviction[s] for the above crimes occurred on March 14, 1997. That morning appellant returned to an apartment complex in Marysville, Ohio, after a long night of drinking, to find himself locked out of the apartment where he was staying. While waiting for the other occupants of the apartment to return home, appellant sought refuge from the rain on an apartment patio belonging to Vicky Johnson, another tenant in the complex. From her patio, appellant watched Vicky Johnson and her boyfriend until they left the building. While they were gone, appellant entered the apartment through an unlocked door.

Meanwhile, Johnson drove her boyfriend to work and returned home shortly before 6:00 a.m. As Johnson entered her bedroom, she was attacked by appellant. A short struggle ensued as appellant covered Johnson's head with a shirt and threw her down on the bed. Appellant proceeded to rape Johnson, using a blanket to further blind her and protect his anonymity. At one point, Johnson did catch a glimpse of appellant's fingers and knew her attacker was black. After the rape, appellant led Johnson to the bathroom, her head still covered, and told her to shower. Although the door to the restroom did not lock, Johnson was able to brace her body between the sink and the door to keep appellant from reentering the bathroom. Appellant finally left Johnson's apartment through the patio door, picking up $2 from a coffee table before leaving.

Appellant was subsequently arrested and confessed to the events surrounding the rape of Vicky Johnson on March 14, 1997. Appellant pled not guilty to the charges against him, and his case proceeded to trial. Appellant was subsequently found guilty by a jury of rape, aggravated burglary, robbery, and kidnapping, and was sentenced by the trial court as described above.

State v. Avery, 709 N.E.2d 875, 878 (Ohio Ct. App. 1998). The trial court sentenced Petitioner to an aggregate term of 30 years imprisonment, and adjudicated him a sexual predator. See id. Petitioner filed a timely appeal. He asserted the following claims:

"Appellant was deprived of a fair trial and due process as guaranteed by the Ohio and U.S. Constitutions, by the state's misleading bill of particulars regarding the kidnapping charge, as well as by the court's abuse of discretion in permitting the state to constructively amend the indictment and bill of particulars at trial."

***

"The trial court abused its discretion by failing to instruct the jury that its verdict must be unanimous as to the specific kidnapping alternatives available under R.C. 2905.01, resulting in a violation of defendant's sixth amendment right to a unanimous verdict."

***

"Appellant was deprived of a fair trial and due process as guaranteed by the Ohio and U.S. Constitutions, due to the ineffective assistance of counsel."

***

"The sentence is contrary to law, as the record supports neither the consecutive maximum sentences, nor the sexual predator classification, which is authorized by an unconstitutionally vague statute."

Id. at 878-84. On April 14, 1998, the appellate court affirmed the judgment of the trial court. Id. at 887. Petitioner did not file a timely appeal. On March 7, 2001, the Ohio Supreme Court denied Petitioner's motion for a delayed appeal. State v. Avery, 743 N.E.2d 401 (Ohio 2001).

On July 23, 1998, Petitioner filed an application for reopening of the appeal pursuant to Ohio Appellate Rule 26(B). (Doc. 5, PAGEID # 270). On September 18, 1998, the appellate court denied the Rule 26(B) application and subsequently denied Petitioner's motion for reconsideration. (Id., PAGEID # 332, 340). On December 23, 1998, the Ohio Supreme Court dismissed the appeal. (See Doc. 5-1, PAGEID # 833).

On November 23, 2010, the trial court conducted a de novo re-sentencing hearing because it had failed to advise Petitioner of the terms of post release control at his initial sentencing hearing.

On November 24, 2010, the trial court resentenced Avery to an aggregate sentence of thirty years in prison (with credit for time served) and correctly informed him as to PRC. The resentencing entry also included the method of conviction, which was lacking in the previous judgment entry. See Crim.R. 32(C); State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163.

State v. Avery, 3rd Dist. No. 14-10-35, 2011 WL 3656470, at *1 (Ohio Ct. App. Aug. 22, 2011). Petitioner challenged that sentence, but the appellate court affirmed the judgment of the trial court. Id. And, on January 18, 2012, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Avery, No. 2011-1696, 959 N.E.2d 1056 (Ohio Jan. 18, 2012).¹

B. Prior Federal Habeas Corpus Proceedings

This is Petitioner's fourth federal habeas corpus petition challenging these same convictions. On June 9, 2000, this Court dismissed Petitioner's first federal habeas corpus petition without prejudice at Petitioner's request. Avery v. Brigano, No. 2:99-cv-459. On January 13, 2003, the Court dismissed Petitioner's second § 2254 action as time-barred. Avery v. Wilson, No. 2:02-cv-139. On September 13, 2013, the Court transferred Petitioner's third § 2254 action to the United States Court of Appeals for the Sixth Circuit as successive. Avery v. Bunting, No. 2:13-cv-00097.

On May 21, 2014, the Sixth Circuit denied Petitioner authorization for the filing of a successive habeas corpus action. (Doc. 5-2, PAGEID # 886). Yet, on February 21, 2018, in view of King v. Morgan, 807 F.3d 154 (6th Cir. 2015) and In re Stansell, 828 F.3d 412, 417 (6th Cir. 2016), the Sixth Circuit issued an Order denying a second motion for authorization for the filing of a successive petition as unnecessary in view of the trial court's 2010 re-sentencing hearing. (Doc. 7-1, PAGEID # 949-51).

C. Current Habeas Corpus Petition

Thereafter, on April 25, 2018, Petitioner filed this habeas corpus petition. He asserts that his convictions constitute allied offenses of similar import (Claim One); that he was denied a fair trial when a dismissed alternate juror remained in the jury room during deliberations (Claim Two); that his 1997 sentence was void for lack of a final appealable order (Claim Three); that he was denied a fair trial based on improper jury instructions on kidnapping (Claim Four); that he was denied the effective assistance of trial counsel (Claim Five); that he was denied his right to a speedy trial (Claim Six); that police violated Miranda v. Arizona, 384 U.S. 436 (1966) (Claim Seven); that the trial court violated Batson v. Kentucky, 476 U.S. 79 (1986) (Claim Eight); thatthe trial court issued improper jury instructions on Count 2 of the Indictment (Claim Nine); that the trial court issued improper jury instructions on Count 3 of the Indictment (Claim Ten); that the trial court issued improper jury instructions on other essential elements of offenses charged (Claim Eleven); that he was denied the effective assistance of appellate counsel (Claim Twelve); that he was denied due process of law on appeal in relation to Rule 26(B) proceedings (Claim Thirteen); that he was denied the effective assistance of trial and appellate counsel because his attorneys failed to ensure the record was properly transferred to the Court of Appeals (Claim Fourteen); and that the trial court lacked jurisdiction to re-sentence him (Claim Fifteen).

On July 9, 2019, this Court denied Respondent's Motion to Dismiss the action as time-barred. (Doc. 27). On August 26, 2019, the Court denied Respondent's motion for reconsideration. (Doc. 39). The case is now ripe for review. Respondent maintains that Petitioner's claims are not cognizable, waived, or otherwise fail to provide a basis for relief.²

II. VOLUNTARILY WITHDRAWAL OF CLAIMS

As a threshold matter, the Court notes that Petitioner has withdrawn habeas corpus claims three, four, six, seven, eight, and, fourteen, and part of claim five for federal habeas corpus review. (Doc. 44, PAGEID # 1786 n.2). The Court therefore will not address those claims.

III. PROCEDURAL DEFAULT

Respondent asserts that Petitioner has procedurally defaulted his remaining claims.

A. Standard

Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. § 2254(a). In recognition of the equal obligation of the state courts toprotect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. § 2254(b), (c). If the prisoner fails to do so, but still has an avenue open to present the claims, then the petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (...