Benvenuto v. Turner

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JAMES BENVENUTO, Petitioner, v. WARDEN NEIL TURNER, Respondent.

No. 3:19-CV-2353

United States District Court, N.D. Ohio, Eastern Division

February 6, 2023

JAMES S. GWIN JUDGE

REPORT & RECOMMENDATION

Jennifer Dowdell Armstrong U.S. Magistrate Judge

I. INTRODUCTION

Petitioner James Benvenuto (“Benvenuto”), seeks a writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1). Mr. Benvenuto is an Ohio inmate currently serving a 34-year term of imprisonment for: (1) 53 fifth-degree felony counts of trafficking in marijuana; (2) one third-degree felony count of trafficking in marijuana; (3) two second-degree felony counts of possession of marijuana; (4) one third-degree felony count of possession of hashish; and (5) one first-degree felony count of engaging in a pattern of corrupt activity. (Id.) Mr. Benvenuto, through counsel, asserts four grounds for relief in his petition. (Id.)

Respondent, Warden Neil Turner (“Warden”), filed an answer/ return of writ on December 9, 2019. (ECF No 6). Mr. Benvenuto, through counsel, filed a traverse on February 21, 2020. (ECF No. 9.) On February 28, 2020, the Warden filed a reply to the traverse (ECF No. 11), as well as a motion to strike the exhibits attached to the traverse (ECF No. 10). On March 13, 2020, Benvenuto filed an omnibus motion styled as “Petitioner's Response to Respondent's Motion to Strike/Motion to Stay and Hold Proceedings in Abeyance Pending Exhaustion of State Remedies 1 and Memorandum in Support/Motion for Leave to Expand the Record.” (ECF No. 14.)

On September 14, 2020, Magistrate Judge Baughman issued an order granting Mr. Benvenuto's motion to stay and abate proceedings, denying without prejudice Mr. Benvenuto's motion to expand the record, and granting the Warden's motion to strike the exhibits attached to the traverse. (ECF No. 15.) Magistrate Judge Baughman's order further required Mr. Benvenuto to file a notice with the Court by November 16, 2020, advising that he has filed an action in Ohio courts and updating the Court every 90 days as to the status of that state action. (Id.) Mr. Benvenuto, through counsel, filed a series of 90-day status reports (see ECF Nos. 16-19) and ultimately advised the Court on November 11, 2021, that: (1) on December 9, 2020, Allen County Court of Common Pleas denied Mr. Benvenuto's Petition for Post-Conviction Release; (2) on the Third District Court of Appeals subsequently denied Mr. Benvenuto's appeal; and (3) on October 26, 2021, the Supreme Court of Ohio declined to accept jurisdiction of Mr. Benvenuto's appeal. (ECF No. 20). Since that time, neither party has filed additional briefing in this case.

This matter was referred to me on September 2, 2022, under Local Rule 72.2 to prepare a report and recommendation on Mr. Benvenuto's petition and other case-dispositive motions. For the foregoing reasons, I recommend that Benvenuto's claims be DISMISSED and/or DENIED. I further recommend that this Court not grant Mr. Benvenuto a certificate of appealability.

II. RELEVANT FACTUAL BACKGROUND

For purposes of habeas corpus review of state court decisions, a state court's findings of fact are presumed correct and can be contravened only if the habeas petitioner shows, by clear and convincing evidence, that the state court's factual findings are erroneous. 28 U.S.C. § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by a state court of appeals based on the state trial court record. Mitzel, 267 F.3d at 530. The Ohio Court of Appeals for the Third District summarized the facts as follows:

{¶ 3} On August 9, 2016, investigators from the West Central Ohio Crime Task Force (“WCOCTF”) were conducting surveillance on Vincent McKercher (“McKercher”) in Allen County. (05/05/2017 Tr. at 8). McKercher had a history of trafficking in marijuana. (Id. at 9). Investigators followed McKercher (in his vehicle) from a barbershop in Lima, Ohio to a warehouse located at 519 N. Jackson St. in Lima. (Id. at 11). Shortly thereafter, investigators observed McKercher's vehicle leaving the warehouse, with a second vehicle leaving the warehouse directly behind it. (Id. at 15). The vehicles headed in different directions, so investigators split up in order to follow both vehicles. (Id.). Shortly thereafter, and with the assistance from local law enforcement, McKercher's vehicle was stopped for a window tint violation. (Id. at 99). After the stop and subsequent search of McKercher's vehicle, officers located a duffle bag in the trunk that contained marijuana. (Id. at 100). During the search of McKercher's vehicle, investigators observed an unknown male in the vicinity watching the traffic stop while talking on his cell phone. (Id. at 21-22).

{¶ 4} While McKercher's traffic stop and search was underway, investigators and local law enforcement followed the second vehicle, a Chrysler 200, which left the warehouse behind McKercher's vehicle. (Id. at 18-19). Patrolman Amy Glanemann (“Officer Glanemann”) of the Lima Police Department stopped the driver of the Chrysler 200 for failing to properly signal the intention to turn 100 feet prior to an intersection. (Id. at 66). The Appellant was identified as the driver of the Chrysler 200. (Id. at 67).

{¶ 5} While other law enforcement officers were running Appellant's license information through LEADS, Officer Glanemann had her K-9 partner, Diego, conduct a free air sniff of Appellant's vehicle. (Id. at 69). Officer Glanemann determined that Diego alerted to the presence of drugs at Appellant's vehicle side door. (Id.). As a result of the free air sniff, Appellant was removed from the vehicle. (Id.). During the pat-down of Appellant, officers discovered $4,600 in cash and a container containing various pills in his pants pockets. (Id. at 70). Officers learned from an on-line application that Appellant's pills were Hydrocodone, a Schedule II narcotic. (Id.). The search of Appellant's vehicle also revealed the presence of packaging containing marijuana residue (marijuana “shake”) in the passenger compartment. (Id. at 71). Investigators also discovered that Appellant's vehicle was a rental vehicle. (Id. at 52). Thus, investigators seized the vehicle. (Id.).

{¶ 6} After seizing Appellant's vehicle and while law enforcement officers were driving it to the Allen County Sheriff's Department for a more thorough search, Appellant's cell phone, which was left in the vehicle, rang multiple times. (Id. at 22). Based on the collective behaviors of McKercher and Appellant, the large quantity of marijuana found in McKercher's vehicle, the suspicious individual in the area watching McKercher's traffic stop, and Appellant's cell phone ringing in the rental vehicle, law enforcement officials decided to obtain a warrant to search the warehouse located at 519 N. Jackson St. for drugs. (Id. at 2021).

{¶ 7} Investigators, with the assistance of local law enforcement, drove to the warehouse to set up a perimeter around it until the warrant was secured. (Id. at 21). However, while at the warehouse, law enforcement officials noticed that the warehouse garage door was open and an unidentified white vehicle was in the warehouse. (Id. at 22). Fearing that evidence in the warehouse was at risk of being destroyed or removed, Investigator Trent Kunkleman (“Investigator Kunkleman”) of the WCOCTF, knocked on the door of the building attached to the warehouse. (Id. at 24). When a woman, later identified as Beth McElfresh (“McElfresh”), answered and opened the door, Investigator Kunkleman noted the smell of raw marijuana emanating from the residence. (Id.). Investigator Kunkleman asked McElfresh if the residence was connected to the warehouse and McElfresh indicated that it was. (Id.). Thereupon, Investigator Kunkleman, along with other law enforcement officials, entered the residence to conduct a protective sweep of the area to ensure that potential evidence was not destroyed.1 (Id. at 25). Officers then conducted a protective sweep of the residence and the warehouse, noting that marijuana was discovered in plain view in the residential portion of the property. (Id. at 27). Further, Investigator Kunkleman testified that during the protective sweep of the area, law enforcement did not open any drawers or check any enclosed spaces unless the space was large enough to hide a human being. (Id.).

{¶ 8} Once the initial sweep was finalized, law enforcement officers exited the premises and completed the search warrant process for 519 N. Jackson St. (Id. at 28). Upon submission of the search warrant, the reviewing judge determined probable cause existed and issued the search warrant. (Id. at 29). Investigators then returned to the warehouse with the warrant and searched the premises. (Id.). The search resulted in the seizure of a number of drug-related items. (Id.). Investigators also discovered a video tape security system that was utilized in the warehouse portion of 519 N. Jackson St. (Id. at 29-30). Law enforcement subsequently discovered that the system had recorded their protective sweep of the residence, as well as the numerous (purported) transactions involving the sale of marijuana within the warehouse. (Id. at 30).

(ECF No. 6-1, Exhibit 19); State v. Benvenuto, 2018 WL 2966853, 2018-Ohio-2242, at ¶¶ 3-8 (3d Dist. June 11, 2018).

III. PROCEDURAL HISTORY

A. State Court Conviction

On October 14, 2016, Mr. Benvenuto was indicted on the following offenses: (1) 53 fifth-degree felony counts of trafficking in marijuana, in violation of R.C. § 2925.03(A)(1) &amp R.C. § 2925.03(C)(3)(a); (2) one third-degree felony count of trafficking in marijuana, with a specification for forfeiture of money in a drug case pursuant to R.C. §...